1 Fair Work Act 2009 s.604—Appeal of decision Appeal by Oliver Townsend (C2025/7952) DEPUTY PRESIDENT COLMAN DEPUTY PRESIDENT FAROUQUE COMMISSIONER ALLISON MELBOURNE, 22 AUGUST 2025 Appeal against decisions of Deputy President Bell at Melbourne on 30 July 2025 and 31 July 2025 in matter number AB2025/383 – permission to appeal refused [1] Oliver Townsend has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against decisions of Deputy President Bell issued in correspondence to the parties on 30 and 31 July 2025 in which the Deputy President declined to recuse himself from further involvement in Mr Townsend’s anti-bullying application made under s 789FC of the Act, and declined Mr Townsend’s request that he publish reasons for his recusal decision. The matter was listed for permission to appeal only. The parties consented to the Full Bench determining the matter without holding a hearing, and we are satisfied that it can be adequately determined without the parties making oral submissions (see s 607(1)). [2] On 14 July 2025, Mr Townsend filed an application asking the Deputy President to recuse himself on the ground of apprehended bias. The application submitted that during a conference on 23 June 2025, and by correspondence on 1 July 2025, the Deputy President had engaged in conduct that would lead a fair-minded lay observer reasonably to apprehend that he might not bring an impartial mind to the determination of the matter. In this regard, the application stated that during the conference the Deputy President had questioned the merit of Mr Townsend’s anti-bullying application, expressed concern about the time and money being spent on the matter, and interrupted Mr Townsend’s representative; and that in the correspondence of 1 July 2025, the Deputy President had rejected the parties’ request for the matter to be listed for a 2-day hearing, refused to allow witnesses to appear by video, and made further statements that were critical of the application and the parties’ approach to it. [3] On 30 July 2025, the Deputy President advised the parties that he declined to recuse himself because the level for recusal had not been reached. The Deputy President noted that, although it is common for members to express provisional views on substantive matters, he did not consider that he had expressed any substantive views on the merits, nor did he consider, applying the test in Ebner v Official Trustee in Bankruptcy [2000] HCA 63, that any of the circumstances of the conference on 23 June 2025 mandated his recusal. The Deputy President said that he remained concerned that disproportionate resources were being directed towards a dispute that may have little bearing on what appeared to be Mr Townsend’s overarching concern, which was that he might be dismissed. [2025] FWCFB 186 DECISION [2025] FWCFB 186 2 [4] On 30 July 2025, Mr Townsend’s representative asked the Deputy President to issue reasons for rejecting the recusal application. He stated that Mr Townsend wished to appeal, that s 601(1) requires certain decisions to be in writing, and that s 601(4) requires written decisions to be published. He also stated that ‘it was not for the FWC to dictate’ what is an appropriate expenditure of time and energy on a matter. On 31 July 2025, the Deputy President advised the parties that he did not consider that his recusal decision was required to be published and that he did not intend to publish it. [5] An appeal from the Deputy President’s decisions may only be brought with the permission of the Commission under s 604(1). Section 604(2) provides that the Commission must grant permission if it is satisfied that it is in the public interest to do so. Consideration of the public interest involves a broad value judgment (Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]). Matters that may engage the public interest include issues of importance and general application, a diversity of decisions at first instance, or where the decision manifests an injustice (GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266 at [27]). Where the public interest is not engaged, the Commission may grant permission to appeal on general discretionary grounds. In deciding whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds (Trustee for the MTGI Trust v Johnston [2016] FCAFC 140 at [82]). However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error. An appellant must ordinarily demonstrate that there is such a case in order to be granted permission to appeal, as an appeal cannot succeed in the absence of error (Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at 204). [6] The notice of appeal advances four grounds. The first ground submits that the Deputy President erred by not giving reasons for his recusal decision and by refusing Mr Townsend’s request that he do so. This ground is misconceived. Reasons for the recusal decision were provided in the correspondence of 30 July 2025. They were brief, but plainly adequate. What Mr Townsend appears to mean is that the Deputy President did not publish his reasons. But he was not required to do so, because the decision was made under Part 5-1. It was therefore excluded from the requirement to be in writing (see s 601(1)(a)) and did not need to be published (see s 601(4)). [7] The second appeal ground submits that the Deputy President erred in applying the test in Ebner. But it does not explain how he did so. This ground is an assertion without a rationale. It discloses no arguable error. [8] The third appeal ground contends that the Deputy President failed to take into account or give sufficient weight to ‘relevant evidence’, including witness statements from Mr Townsend and his wife that were said to provide a strong foundation to conclude that the test for apprehended bias in Ebner was met. This appeal ground simply argues for a different conclusion. It does not identify specifically what evidence was allegedly disregarded or why it warranted particular weight. The witness statements attested that at the conference, the Deputy President interrupted Mr Townsend’s representative, appeared dismissive of the claim, questioned why the claim was made, and stated that he could not see how the matter amounted to bullying. But generalised impressions of a member’s demeanour are of little moment, as are interruptions. And the fact that a member might question the merits of a case is not suggestive [2025] FWCFB 186 3 of apprehended bias. As Mr Townsend conceded in his written submissions, it is not inappropriate for a member to test a party about its case. There are limits to this, beyond which concerns of apprehended bias might arise, but we identify no arguable case that those limits were exceeded in this case. We note that the Deputy President was said to have remarked at the conference that he had ‘skim read some of the materials’, which clearly conveyed that his thoughts about the case were preliminary ones only, as one might expect for an initial conference. The third ground of appeal discloses no arguable error in the recusal decision. [9] The fourth appeal ground contends that during the conference the Deputy President stated or implied that senior employees could not or should not make anti-bullying claims, and that a performance improvement plan could never amount to bullying. But the evidence proffered in support of this contention does not bear out any such statement or implication. The Deputy President is said to have raised a threshold question about the validity of the application because of Mr Townsend’s seniority. But it is unclear precisely what the Deputy President is alleged to have said. The Deputy President is said to have remarked that putting someone on a performance management plan is reasonable management action. But one could not sensibly conclude from this that the Deputy President considered that performance management plans could never amount to bullying. [10] Finally, Mr Townsend is wrong to suggest that the Commission has no business to concern itself with the time and effort that is invested in a proceeding. A party can spend whatever time it likes on a matter. But the Commission is required by s 577 to perform its functions and exercise its powers in a manner that is fair and just, quick and informal, and that avoids unnecessary technicalities. Section 578 requires the Commission to take into account equity, good conscience and the merits of the matter. These provisions bear on the exercise of the Commission’s discretion to make programming decisions and to supervise the conduct of proceedings before it. A concern for the proportionality of a proceeding to its subject matter is core business for the Commission. The Deputy President’s expression of concern about the extent of the resources being directed at the dispute does not speak to any arguable error. [11] The appeal grounds disclose no arguable error. The recusal decision was a brief one that reflected an orthodox response to an application of little merit. We are not satisfied that it is in the public interest to grant permission to appeal, nor do we consider that permission to appeal should be granted on general discretionary grounds. Permission to appeal is refused. DEPUTY PRESIDENT Determined on the papers Printed by authority of the Commonwealth Government Printer <PR790950>