Alvarez Nino v Kuksal (No 2)
[2022] FedCFamC2G 548
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Alvarez Nino v Kuksal (No 2) [2022] FedCFamC2G 548
File numbers: MLG 806 of 2021
MLG 807 of 2021
MLG 808 of 2021
MLG 809 of 2021
MLG 810 of 2021
MLG 811 of 2021
MLG 812 of 2021
MLG 813 of 2021Judgment of: JUDGE FORBES Date of judgment: 8 July 2022 Catchwords: INDUSTRIAL LAW – Fair Work – Application for recusal of trial judge – alleged apprehended bias – whether active case management gives rise to apprehension – objective assessment by hypothetical fair-minded lay observer – subjective concerns or lack of confidence not sufficient – application dismissed Legislation: Fair Work Act 2009 (Cth), s 548, 550, 570
Federal Circuit and Family Court of Australia Act 2021 (Cth), s 190, 191
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021
Judiciary Act 1903 (Cth), s 39BCases Cited Alvarez Nino v Kuksal [2022] FedCFamC2G 401
Charisteas v Charisteas (2020) HCA 29
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Gascor v Ellicott [1997] VR 332Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56
Johnson v Johnson (2000] 201 CLR 488 at 493
Pearlman v QA a/Information Commissioner [2019] WASC 257
R v Nicholas (2000) 1 VR 356
Re JRL Ex parte C.J.L (1986) 161 CLR 342
Re Polites; Ex parte Hoyts Corporation (1991) 173 CLR 78
Webb v The Queen (1994) 181 CLR 41Division: Division 2 General Federal Law Number of paragraphs: 68 Date of hearing: 4 July 2022 Place: Melbourne Counsel for the Applicant: Mr S Bunce Solicitor for the Applicant: JobWatch Inc Counsel for the Respondent: In Person Solicitor for the Respondent: Erudite Legal ORDERS
MLG 806 of 2021
MLG 807 of 2021
MLG 808 of 2021
MLG 809 of 2021
MLG 810 of 2021
MLG 811 of 2021
MLG 812 of 2021
MLG 813 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: WILMER JAHIR ALVAREZ NINO
First Applicant
ANA MELISA GARCIA CALVO
Second Applicant
JUAN CAMILO RIOS LONDONO (and others named in the Schedule)
Third Applicant
AND: SHIVESH KUKSAL
Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
8 JULY 2022
THE COURT ORDERS THAT:
1.The respondent’s oral application for recusal made on 4 July 2022 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
On 4 July 2022, during the first day of what was to be the final hearing of these eight applications, the respondent made an oral application seeking that I recuse myself from further hearing these matters.
After hearing and considering the respondent’s submissions in support of the application, I did not accede to the application. These reasons explain my decision.
BACKGROUND
It is unnecessary to traverse the long and complex history of these matters, suffice to say that despite these 8 applications having been initiated under the small claims procedure of the Fair Work Act 2009 (Cth)[1] (’the FW Act’) in April 2021, none has yet proceeded to a final hearing.
[1]Fair Work Act 2009 (Cth) (‘FW Act’), s 548
The applications have been listed for final hearing on no fewer than 4 occasions, in November 2021, February 2022, March 2022 and again on 4 July 2022.
The proceedings have been beset with procedural disputes and contests. What at first blush appear to be underpayment claims for relatively small amounts ranging from around $600 to $7,000 or so, disguises a litany of collateral legal and factual issues which have been agitated between the parties and which have occasioned numerous procedural rulings and adjournments.
These applications have been the subject of numerous orders and directions in an effort to ready them for trial. Case management has been difficult and procedural orders have been made on seven occasions[2], dealing with amendments to the applications, the filing of evidence, lists of issues, outlines of submissions, referral to mediation and various other matters. Case management challenges have been compounded by the parties filing or seeking leave to file documents out of time, the ambiguous state of the respondent’s legal representation, the respondent’s robust engagement with opposing counsel and the Court, and his self-advocacy which includes frequent interjections, the use of emotive language and allegations of professional misconduct and judicial unfairness.
[2] 21 June 2021, 20 October 2021, 7 February 2022, 24 February 2022, 15 March 2022, 15 June 2022, 4 July 2022
During the course of these proceedings it has been necessary for the Court to determine several interlocutory disputes. For example, the Court has ruled against the respondent’s oral application for summary dismissal of the applications as an abuse of process[3] and an earlier oral application that I recuse myself. The Court has also ordered that the respondent pay the applicants’ costs following an adjournment on 24 February 2022 occasioned by his late filing of an interlocutory application, an application he later discontinued.
[3] Hearing on 7 February 2022
On another occasion, the respondent sought a stay of the proceedings after announcing to the Court on the morning of trial on 15 March 2022 that he had, that morning, filed an application in the Federal Court of Australia pursuant to s 39B of the Judiciary Act 1903 (Cth). In that application, the respondent sought judicial review of previous interlocutory decisions made by me in these proceedings as well as seeking declaratory relief and compensatory orders against the applicants’ solicitor and senior and junior counsel in relation to their conduct in the proceeding. I did not grant the stay nor did I recuse myself, for reasons given ex tempore that day.
One significant contest which stood in the way of these applications being heard and determined concerned the legal question of whether this Court has jurisdiction under the small claims procedure to make compensatory orders against a person alleged to have been “involved in”[4] a contravention of civil remedy provisions of the FW Act. That issue was recently the subject of a legal ruling published in my decision in Alvarez Nino v Kuksal [2022] FedCFamC2G 401 (27 May 2022). It was hoped that the determination of that issue, which has not been appealed by the respondent, might have cleared the way for the substantive hearing to proceed.
[4] FW Act, s 550
In that decision, lest there be any doubt about my view of the merit of the substantive proceedings, I stated at [38] that:
Consideration of the threshold issue before the Court does not extend to determining other live questions such as whether the applicants were employees or independent contractors, the identity of the applicants’ employer if they were employees, whether the facts of any application establishes a contravention of a relevant industrial instrument or whether Mr Kuksal was or was not involved in a contravention by a putative employer. The Court has not heard any evidence in the substantive proceedings, it has not made any findings of fact or liability and the Court accepts that the applicants’ allegations and claims are vigorously contested by Mr Kuksal.
Upon determining the legal question, I ordered that the substantive applications would remain listed for final hearing on 4 and 5 July 2022. Those hearing dates were first ordered on
15 March 2022.Regrettably, this first day of the re-listed final hearing has yet again been mired in procedural debate. It is not necessary to descend into the detail of those procedural issues, but they include an application by the applicants for leave to file a further affidavit, questions regarding the admissibility of documents obtained by the applicants from the Fair Work Ombudsman via a Freedom of Information request, whether the applicants wish to press a subpoena for production of documents in the possession of the Fair Work Ombudsman, the respondent’s readiness for trial including whether he has been properly served with documents including the court book and whether he has been afforded an opportunity to prepare his case. It is relevant to note at this juncture that in the context of some of this procedural debate, the respondent contended that previous orders made by the Court have not been consistently applied and that the Court as presently constituted has been inconsistent in procedural rulings.
Shortly prior to the luncheon adjournment on 4 July, as these procedural debates were playing out, the respondent made an oral application that I recuse myself. As mentioned above, this is not the first time that the respondent has made such an application. He has made and I have rejected earlier oral applications on 24 February 2022 and on 15 March 2022. An interlocutory application sealed by the Court on 17 February 2022 which sought my recusal was not formally determined after the hearing of that application was adjourned and then subsequently discontinued on 24 February 2022.
In support of his most recent application that I recuse myself, the respondent contended that I had been acting unreasonably against him, that I had denied him procedural fairness and that I had conducted the proceeding in a way which prevented him from preparing his case. He submitted that I had been “ignoring relevant facts” (without particulars) and “taking into account irrelevant facts” (again without particularising that alleged failing). The respondent said that I was infected with imputed bias and that there was a reasonable apprehension of bias.
The respondent said that he had come to the proceedings with an expectation about the way in which the case would proceed. However, he contended that I had by my previous orders and rulings prevented him from conducting his case in the way he wanted and that I was not affording him a fair trial. The respondent asserted that I had abandoned predetermined procedures and that the Court was in breach of its own orders.
As the luncheon adjournment approached, I informed the applicant that I would afford him time to properly articulate his grounds for my recusal and to expand upon them after lunch.
Upon the resumption of the hearing at 2.15pm, the respondent was not present. A solicitor from the law firm Erudite Legal appeared on the Microsoft Teams link and informed the Court that the respondent was presently indisposed as he was taking steps to make an urgent application to the Federal Court for injunctive relief. Shortly thereafter the respondent re-entered the virtual courtroom and confirmed that he was seeking an interlocutory order for a stay of the proceedings by way of a judicial review application to the Federal Court. He set out the grounds upon which he intended to seek interim and permanent relief. It is not necessary to go to those grounds in detail, other than to note that the respondent intends to allege that I have made jurisdictional error, that there exists a reasonable apprehension of bias and that I have conducted myself unreasonably. I was given the understanding that relief would also be sought against the applicants’ solicitor and counsel in relation to their conduct in relation to the claims in these proceedings.
Mr Kuksal submitted that the Court should adjourn the proceedings pending the hearing of his interlocutory application by a Duty Judge of the Federal Court. He also informed the Court that he would press his application for recusal if I were minded to reject his application for an adjournment.
I invited Mr Kuksal to press his application for recusal and he did so.
In further support of the application Mr Kuksal said that he had the impression that I had been acting unfairly toward him, including by making a costs order against him on 24 February 2022. He said that he believed the costs order was made by me out of a sense of frustration and in order to move the proceedings along quickly. He said the award of costs was contrary to s 570 of the FW Act, was a punitive measure against him and was intended to be a deterrent against future delay.
The respondent said that he did not allege the Court harboured actual malice, but he felt on a number of occasions the Court had been partial in the way in which it had treated the parties. In that context, he said that the Court had not allowed him to file evidence out of time but that the Court was prepared to consider similar applications by the applicants favourably. He alleged that the Court had engaged in double standards.
The respondent also contended that I had failed to properly act in relation to his allegations and evidence about the conduct of the applicants’ solicitor. He said that I had prevented him from pressing a case of professional misconduct and contempt against that solicitor in this proceeding and cited Kyle v Legal Practitioners Complaints Committee [1999] WASCA 115 as authority supporting his right to do so.
The respondent also contended that I had been “overly trusting” of the applicants’ senior counsel, Mr Irving SC[5], and that I had unduly deferred to his submissions and suggestions as to how the proceedings might move forward. The respondent contended that in so doing, I harboured an adverse view about him, his acumen and his experience as an unrepresented litigant. He developed this submission further and contended that my trust in and favourable treatment of senior counsel for the applicants created an artificial barrier which prevented me from properly considering the respondent’s complaints about the conduct of the applicants’ solicitor and counsel. He submitted that there were several instances where I had deferred to senior counsel in relation to procedural matters and had forgotten or been unwilling to invite his submissions on those matters.
[5] Mr. Irving SC appeared with Mr. S. Bunce at hearings on 7 February 2022, 24 February 2022 and 15 March 2022. At the hearing on 4 July 2022 Mr. Bunce appeared for the applicants unled
The respondent submitted, by reference to the above matters, that “some reasonable people may not have confidence” in me continuing to hear the case.
PRINCIPLES
The principles relating to disqualification on the ground of apprehended bias are well-established. These principles are regularly surveyed and restated in cases in all jurisdictions.
Fundamentally, the test for apprehended bias, articulated by the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 is whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.[6]
[6] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ
In Ebner the Court explained that the principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that a Tribunal be independent and impartial.
But the Court also made the following observation which bears repeating for the sake of establishing the context in which a recusal application is to be considered:
Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the Court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case[7].
[7] Ebner at [19]
More recently in Charisteas v Charisteas (2020) HCA 29 at [11], the High Court offered the following further guidance as to the approach to be taken in assessing an assertion of apprehended bias:
Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well-established, and they were not in dispute. The apprehension of bias principle is that “a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The principal gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial - that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, “it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits”; and, second, there must be articulated a “logical connection” between that matter and the feared departure from the judge citing the case on its merits. Once those 2 steps are taken, the reasonableness of the asserted apprehension of bias can then be ultimately assessed.
A reasonable apprehension of bias may be enlivened when a judicial officer has some direct or indirect interest in the case before them, has published or acted in a way that gives rise to a reasonable apprehension of bias, has some direct or indirect relationship, experience or contact with anyone involved in the case or has some knowledge of extraneous information[8].
[8] Webb v The Queen (1994) 181 CLR 41, 71
The test of apprehended bias is viewed from the perspective of the hypothetical fair-minded lay observer. As five judges of the High Court said in Johnson v Johnson[9], while the
fair-minded lay observer “is not to be assumed to have detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice”.[9] Johnson v Johnson (2000] 201 CLR 488 at 493
The fair-minded lay observer is vested with an understanding that judicial officers are bound by rules of precedent and have statutory and ethical obligations to act in a fair-minded and balanced manner. Judges are to decide matters according to merit and justice and according to their oath. The hypothetical lay observer understands that judicial officers are by their oath bound to act with integrity and impartiality and that a member of the judiciary will by training and experience be able to disregard irrelevant, prejudicial or immaterial matters.
The decision by a member of the judiciary to disqualify him or herself is not one to be made lightly. A judicial officer should not disqualify him or herself too readily or allow a party to dictate whether a particular judge should sit on the case[10].
[10] Re Polites; Ex parte Hoyts Corporation (1991) 173 CLR 78
The test is whether the judicial officer might not decide the case impartially, not whether the judge might decide the case adversely to the party. The applicant’s (i.e. the applicant for recusal) own subjective assessment or concern is not relevant[11]. The apprehension of bias must be reasonable from the objective perspective of the fair-minded lay observer and it is not concerned with fanciful or unreasonable apprehensions of bias[12].
[11] Ebner (supra); see also R v Nicholas (2000) 1 VR 356
[12] Gascor v Ellicott [1997] VR 332
In Pearlman v QA a/Information Commissioner [2019] WASC 257 at [129]-[131] the WA Supreme Court recently observed:
“Apprehended bias must be firmly established. A vague sense of unease or disquiet is not enough. The subjective perception of the person who makes the application for recusal is irrelevant….”
It is not uncommon for recusal to be sought by a party who has been disappointed or aggrieved by decisions made by a judge in other cases or in the instant proceedings. However, rulings, orders and decisions which are adverse to one or other party are common in almost all litigation and are rarely grounds to substantiate an allegation of apprehended bias. Previous decisions are not evidence of prejudgement, even where those decisions have relevance to the legal issues in the present case[13].
[13] Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56
In Re JRL; Ex parte CJL the High Court observed:
“It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be ''firmly established": Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”[14]
[14] Re JRL Ex parte C.J.L (1986) 161 CLR 342, 352.
CONSIDERATION
In my view the respondent’s application that I recuse myself from sitting further in these proceedings has no proper basis and should be dismissed.
Before turning to the respondent’s specific complaints, there are a number of contextual matters which in my opinion would inform the fair-minded lay observer’s objective assessment of my conduct throughout these proceedings.
First, it is to be recalled that the eight applications being dealt with in these proceedings were all initiated as small claims pursuant to s 548 of the FW Act. As explained in my earlier decision on jurisdiction, where a proceeding is dealt with as a small claim proceeding the Court may not award more than $20,000 or such higher amount as may be prescribed by the Fair Work Regulations. In dealing with small claim proceedings the Court is not bound by any rules of evidence and procedure and may act in an informal manner and without regard to legal forms and technicalities. The small claims procedure permits the Court at any time to amend papers commencing the proceeding subject to sufficient notice being given to any party affected by the amendment. The right to legal representation requires leave of the Court, which may be granted subject to conditions.
Secondly, case management of these proceedings is subject to the overarching purpose of civil practice and procedure set out at s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘the FCFCOA Act’), which identifies that Court rules or provisions made with respect to the practice and procedure of Division 2 of this Court should be applied to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. The overarching purpose of proper case management includes the just determination of all proceedings before the Court, the efficient use of the judicial and administrative resources of the Court, the efficient disposal of the Court’s overall caseload, the disposal of all proceedings in a timely manner and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute[15].
[15] s 190(2) Federal Circuit and Family Court of Australia Act 2021 (Cth)
As to proportionality and cost, I note that in the eight applications which I am hearing together in these proceedings, the amounts claimed range from $675.94 to $7,256.82. Across the eight applications the amounts claimed total about $22,000.
It is to be noted that pursuant to s 191 of the FCFCOA Act, the parties to any civil proceeding are to conduct the proceeding in a way that is consistent with the overarching purpose described above. To that end, s 191(4) provides that in exercising any discretion to award costs in a civil proceeding, the Court or a judge must take account of any failure of a party to comply with that duty.
Thirdly, pursuant to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, the case management and other powers of the Court, including the powers to make directions and procedural orders, are to be directed to the overarching purpose as provided in s 190 of the FCFCOA Act. The just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible, taking into account matters of proportionality and complexity, is a proper consideration when the Court exercises discretion.
I set out earlier in these reasons the grounds upon which the respondent relies in support of his application that I recuse myself. It is difficult to discern with any degree of precision the complaints he makes, as they are expressed as broad and sweeping allegations of unfairness, inconsistency, double standards, predetermination and favouritism toward the applicants and their counsel.
Nonetheless, doing the best I can to discern the respondent’s underlying complaints and critique my own conduct, I am unable to identify anything that would cause the hypothetical fair-minded lay observer to reasonably apprehend that I am not able to bring an impartial mind to the determination of the questions of fact and law in these proceedings.
As I have mentioned, these proceedings have required active case and courtroom management in somewhat difficult circumstances. That case management has been required from the very first return date of the applications and it has consumed every Court event since.
I am confident that a perusal of the transcript of the various Court events will reveal that the Court has had to proceed and endeavour to maintain order in an unusually adversarial environment. Both parties have at times tried to assert themselves over the other, requiring the Court to intervene. The respondent in particular has regularly and forcefully interjected while submissions are being made for the applicants or while the Court has been trying to direct proceedings.
If there have been occasions where I have had to caution the respondent about speaking out of turn or for using inappropriate emotive language or for making serious allegations about the honesty and professional integrity of solicitors and members of counsel, I consider those cautions to be entirely appropriate and what would be expected of a judge in the circumstances. It may be that from a subjective perspective the respondent considers himself to have been on the receiving end of the judge’s courtroom management, but that that does not evidence unfairness toward him.
As to the respondent’s contention that I have prevented him from conducting the proceeding in the way he wishes, I apprehend that he is referring to my ruling that I would not entertain an application for summary dismissal of the applicant’s claims, premised on an allegation that the applicant’s solicitor had engaged in professional misconduct and contempt of Court, unless that application was made in the proper form and supported with affidavit material. Having regard to the extremely serious allegations that the respondent has voiced about the conduct of the applicants’ solicitor in bringing these claims on behalf of her clients and the potential for those allegations to inflict reputational damage and harm upon that solicitor, I consider it entirely appropriate for me to have cautioned the respondent and to have explained to him the importance of adhering to the most rigorous procedural and evidentiary standards if such an application is to be pressed.
I note that I made an order on 20 October 2021 which afforded the respondent the opportunity to file and serve any application in a proceeding, including for summary dismissal of the proceedings, by 12 November 2021. As it turned out, by 12 November 2021, Mr Kuksal had not filed any application in a proceeding, including for summary dismissal of the applications or for any order in relation to the conduct of the applicants’ solicitor. The respondent has not been denied an opportunity to run his case the way he wishes to, but he is to comply with Court orders and rules.
Along the way, I have made other rulings which have not gone the respondent’s way. But they are not evidence of bias, prejudgment or any partiality in favour of the applicants.
On 7 February 2022 Mr Kuksal made a verbal application that I summarily dismiss the proceedings on two bases. First, he sought to rely on affidavits filed on his behalf on the morning of the hearing which he contended “sheds some light” on the conduct of the applicants solicitor. I do not propose to describe the details of the allegations here, save that they are of the most serious kind that could be alleged against a practising solicitor. Secondly, the respondent contended that the accessorial liability arguments upon which the claims rely could not be pressed in a small claims proceeding and were an abuse of process and should be dismissed.
I ruled against the respondent’s summary dismissal application. The transcript will confirm that I cautioned him that insofar as he alleged professional misconduct or contempt against the applicant’s solicitor, I had already afforded him an opportunity to make an application in a case which he had failed to do. I reiterated to the respondent, as I did at the first hearing, that it was not appropriate for such an application to be made unless it was on notice, in the proper form and supported with affidavit material.
I also rejected the respondent’s other basis for summary dismissal. I formed the view, based on the material filed in the proceeding to that date, including affidavit material and authorities filed by the respondent that morning, that the applicants accessorial liability allegations were not so without merit as to not enjoy any reasonable prospect of success. It was an exercise of discretion not to dismiss the applications.
I have already mentioned that the respondent has made previous applications that I recuse myself. I ruled on those applications and at the time gave brief reasons ex tempore.
Another complaint by the respondent relates to a hearing on 24 February 2022, when a day was lost after the late filing by the respondent of an application in a case and supporting material. Mr Irving SC who appeared on that occasion with Mr Bunce on behalf of the applicants contended that his clients were prejudiced by the late filing of this material and that they were not in a position to understand the basis for the various orders being sought. After hearing submissions from both parties I ordered that the hearing of the application should be adjourned. Furthermore, after hearing submissions from both parties, including as to the power of the Court to award costs under s. 570 of the FW Act, I ordered that the applicants’ costs of that day be paid by the respondent. I exercised my discretion to do so having formed the view that the respondent’s late filing of material was an unreasonable act or omission which had caused the applicants to unnecessarily incur the costs of that day. I note, for completeness, that I rejected the applicants’ submission for indemnity costs and ordered costs against the respondent on scale.
Each of the rulings which have been made in these proceedings are of the type one would expect of a judicial officer in the ordinary course of managing contested litigation at the interlocutory stages. Rulings which have gone against the position adopted by the respondent do not evidence pre-judgement, impartiality or procedural unfairness. Again I am confident that the transcript of proceedings will reveal that rulings have only been made after hearing from both parties and reflection on their submissions.
I now turn to the allegation that I have been “overly trusting” of the applicants’ senior counsel and that I have unduly deferred to his submissions and suggestions as to how the proceedings might move forward. The respondent does not point to anything in particular to make out this ground.
The respondent regularly reminds the Court that he is a self-represented litigant, notwithstanding that he is represented by a firm of solicitors or at least requires service of documents via an address associated with a firm of solicitors. It is not necessary for me to reach any conclusion about the precise status of his representation, but it is conceded by the respondent that he has received substantial assistance from lawyers and he has informed the Court that they are present with him or nearby when he appears in hearings by Microsoft Teams.
Nonetheless, I have adopted a course of extending considerable latitude to the respondent in these proceedings and he has not been held to the standards of advocacy or conduct expected of a legal practitioner. I have taken steps to ensure that he understands his obligations to the Court and the proper courtesies which apply to the Court room setting and I have tried to help him navigate procedural and technical complexities to the extent that I can. That may have included deferring to experienced senior counsel for the applicants and inviting him to explain the manner in which he believes outstanding legal and factual issues can be most efficiently dealt with by the Court. This is been done for the dual purpose of ascertaining the applicants’ position and to ensure that the respondent understands from his opponent what is being sought and why. It is regrettable that the respondent perceives such interactions between the bench and senior counsel as being evidence of bias or favourable treatment, when in fact it is nothing of the kind.
Finally I come to the issue of alleged inconsistency in the making and enforcement of procedural orders. As sometimes, perhaps often, occurs during the interlocutory stages of litigation, parties fail to adhere to strict timelines and circumstances arise which result in the filing of applications and evidence on short notice prior to Court events. Sometimes parties are prepared to accommodate non-compliance, often in the expectation that their own non-compliance will be forgiven and accommodated. In other cases, parties take great exception to non-compliance because of the prejudice caused or seek to use it to their strategic advantage. All manner of different circumstances present themselves in the course of case management.
As I have mentioned previously, at least 7 sets of orders and directions have been made during the case management of these applications. The making of multiple sets of orders in these proceedings simply highlights the difficulties the Court has encountered in case management. There is no rule that non-compliance by one party should excuse non-compliance by the other. There is no rule that an indulgence granted to one party entitles the other party to indulgences. No two cases are the same and while the Court makes orders with the expectation that the parties will comply with them, the reality of litigation is that from time to time orders must be varied or set aside or adapted with the objective of moving the proceedings toward trial as quickly and efficiently as possible. The Court can only do the best it can.
I return to the statement I made at paragraph 38 of my jurisdiction decision. I have made no finding of fact in relation to the substantive proceedings. I have not yet heard any evidence on the underpayment claims or the allegation of the respondent’s accessorial liability. By my training and experience I maintain an open and impartial mind, which is capable of being persuaded equally by the applicants and the respondent. I am aware that the respondent vigorously contests the applications. That is his right and it does not incline me in favour of the applicants, who continue to carry the onus and who must satisfy the Court that their claims have merit.
Case management decisions made by the Court properly directed to the overarching purpose are a necessary incident of the judicial system. In an adversarial environment, directions, rulings and orders are necessary to move matters toward trial where the facts and legal issues in dispute can be determined. It will rarely be the case that parties will be happy with everything the judge does in exercising case management. However, the subjective impression by a party that the tide of rulings is going against him or her is not enough to ground a recusal application.
CONCLUSION
In my view, the hypothetical fair-minded lay observer, properly apprised of the facts and circumstances of this complicated proceeding, will not have a reasonable apprehension about my capacity to bring an impartial mind to the issues that the Court is to determine.
For those reasons I see no proper basis to recuse myself from further hearing these applications.
The respondent’s oral application made on 4 July 2022 is dismissed.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate: Nada Govedarica
Dated: 8 July 2022
SCHEDULE OF PARTIES
MLG 806 of 2021
MLG 807 of 2021
MLG 808 of 2021
MLG 809 of 2021
MLG 810 of 2021
MLG 811 of 2021
MLG 812 of 2021MLG 813 of 2021
Applicants
Fourth Applicant:
JUAN CAMILO PINEROS TORRES
Fifth Applicant:
LEONARDO FABIO HERNANDEZ ALARCON
Sixth Applicant:
GERALDINE TORRES AMEZQUITA
Seventh Applicant:
CAROLINA CORRALES RHENALS
Eighth Applicant:
NICOLAS MORENO RIVERO
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7
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