Coady v Yachting Victoria Inc
[2018] FCCA 3113
•19 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COADY v YACHTING VICTORIA INC | [2018] FCCA 3113 |
| Catchwords: HUMAN RIGHTS – Discrimination – sex discrimination in sport – yachting regatta – application for recusal on the basis of prejudgment – judicial bias – comments made in course of directions hearing. |
| Legislation: Sex Discrimination Act 1984 (Cth), s.42(1) |
| Cases cited: Coady v Yachting Victoria [2017] FCCA 645 Ebner v Official Trustee in Bankruptcy [2000] HCA 63 |
| Applicant: | STEPHANIE COADY |
| Respondent: | YACHTING VICTORIA INC |
| File Number: | MLG 914 of 2016 |
| Judgment of: | Judge McNab |
| Hearing date: | 15 October 2018 |
| Date of Last Submission: | 15 October 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 19 October 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Arnold Thomas & Beckett (Mr B. Adams) |
| Solicitors for the Respondent: | MacPherson & Kelley |
ORDERS
Order 1 of the Orders made by Judge McNab on 11 December 2017 be discharged.
The proceedings be listed for hearing in the Federal Circuit Court of Australia at Melbourne on 15 November 2018 at 10:00am, before Judge Mercuri, with an estimated hearing time of 2 days.
The parties’ costs be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 914 of 2016
| STEPHANIE COADY |
Applicant
And
| YACHTING VICTORIA INC |
Respondent
REASONS FOR JUDGMENT
(DELIVERED EX-TEMPORE – REVISED FROM TRANSCRIPT)
This matter comes before the Court by way of an application in a case filed on 25 September 2018, supported by an affidavit of Claire Pirie, affirmed 18 September 2018. The application seeks that I recuse myself from hearing the case further on the grounds of a reasonable apprehension of bias. The context of this application arises from comments made by the Court at a directions hearing on 3 September 2018, at which Ms Gladman of counsel appeared for the Applicant and Mr Adams, as solicitor advocate, appeared for the Respondent.
The exchange that is said to give rise to a reasonable apprehension of bias occurred at a directions hearing, which was, in effect, a case management hearing. A second amended statement of claim in this matter was sought to be filed and the discussion at issue occurred in relation to whether evidence would be on affidavit, written outlines of evidence, or oral evidence. The Court had previously produced a written judgment that found that parts of the matters raised by the statement of claim were arguable and not hopeless.[1]
[1] Coady v Yachting Victoria [2017] FCCA 645 [33] – [41].
Parts of the initial statement of claim were ordered to be struck out. That decision was appealed to the Federal Court and the appeal was dismissed by Pagone J on 8 November 2017. In the context of discussing the form of evidence for the issues raised in the second statement of claim, the Court expressed the view that there were no credit issues in the case. At page 4, line 45, of the transcript of the hearing, Ms Gladman of counsel stated:
The other aspect of why the Applicant is seeking to give evidence, viva voce, is – there’s an issue about whether compensation should be awarded, as I understand it.
This demonstrates that the issue of whether compensation ought to be awarded was in the mind of the Applicant and was raised by her counsel.
The question of what, if any, expert evidence was to be called was raised with both parties. The Respondent, in defending the matter, is relying, in part, on s 42(1) of the Sex Discrimination Act 1984, which provides:
Nothing in Division 1 or 2 renders it unlawful to discriminate on the ground of sex, gender, identity or intersex status by excluding persons from participating in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant.
In this context, the representative of the Respondent advised the Court that the Respondent did not intend to call expert evidence. The Court raised how the s 42 defence could be made out without expert evidence. It was in the context of challenging both representatives about the way that the respective cases would be proved and what the Court considered to be unsatisfactory responses from each representative in relation to those matters. The Court stated:
HIS HONOUR: Everyone is over the age of 18, here‑‑‑
MS GLADMAN: Yes.
HIS HONOUR: And they can waste their money as they see fit, as far as I’m concerned‑‑‑
MS GLADMAN: Yes.
HIS HONOUR: This is not a good use of time. This is a waste of time, in my opinion‑‑‑
MS GLADMAN: Is your Honour referring to the entire proceedings?
HIS HONOUR: Yes‑‑‑
MS GLADMAN: Yes, right, well, I’m going to pass that on.
HIS HONOUR: I think it is borderline. I think, if there is a point to prove – if there’s a point to prove in all this, I’m not sure that this court case is the way to prove it. I’m very happy to hear the case and I’m very much alive to the issues and, in fact, I was the one who raised the issue in the judgment. It wasn’t raised in argument by the Applicant‑‑‑
MS GLADMAN: Right‑‑‑
HIS HONOUR: None of the cases that were referred to were, I think, referred to the Court in terms of the point about strength and stamina. So that is an issue. Obviously, I’m interested in that and whether this is a vehicle for it, I wonder. And all this ancillary business about not doing so well at school, arising from the exclusion of the race, it will probably – potentially lead to more trouble than it’s worth for the Applicant.
Given that the Court has previously ordered that the claim in relation to discrimination was not hopeless, the suggestion that the Court has a closed mind to that issue has some difficulty. Further, the Court, in its exchange with the representatives of the parties, did not say that general damages are not claimable for breaches of the Sex Discrimination Act. The Court did specifically raise the issue of how the Applicant was going to prove that she did less well in her final year of school as a result of being excluded from a boat race and the damages that may flow from that. That is a question which was entirely reasonable to raise in the context of case management and to determine how the matter would proceed. The same issue has been raised with the representatives of the Applicant at a previous directions hearing.
The Court was faced with a situation where both parties were wasting time (and money) because they were not giving proper consideration to the evidence to be called to prove respective cases.
The counsel for the Respondent provided helpful written submissions, setting out the proper legal tests. Counsel for the Applicant also referred to authorities, however, emphasis was placed on authorities dealing with conflict of interest, which was not applicable to this case. The High Court of Australia has expressed the relevant test to be applied on an application for recusal on the grounds of apprehended bias in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 (‘Ebner’), where they stated:
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge or other judicial officer or juror, as here, the governing principle is that, subject to qualifications relating to waiver, which are not presently relevant, or necessity, which may be relevant to the second appeal, 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. That principle gives effect to the requirement that justice should both be done and seen to be done, a requirement which reflects the fundamental importance of the principle that the Tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. It is also well settled that a judge should not recuse him or herself unless the test has been established.[2]
[2] Ebner v Official Trustee in Bankruptcy [2000] HCA 63.
The High Court cautioned the approach a judge recusing himself too readily, saying:
Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned 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 the objection should not prevail unless it is based on a substantial ground for contending that the judge is disqualified from hearing and deciding the case.[3]
[3] Ibid [19].
The High Court also accepted that, in a case of real doubt, it may be prudent for the Court to recuse itself and stated:
This is not to say that it is not proper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection was sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench and that would be intolerable.[4]
[4] Ibid [20] – [23].
Counsel for the Applicant put that the Court had prejudged the facts of the underlying case, the Applicant’s credit and further facts and liability and quantum. The gravamen of the submissions, particularly in reply, is that the Court had closed its mind to the question of whether damages would be available to the Applicant by reason of sex discrimination it proved. Counsel for the Applicant submitted that the Court considered the matter to be of no moment.
The Respondent submitted that the exchange that occurred must be considered in context and, in particular, in the context of a case management hearing.
Counsel for the Respondent correctly pointed out that the exchange arose in the context of trying to establish the form of the evidence and the substance of the evidence and how the pleaded case would be proved. I accept the submissions of the Respondent that the context is important and the fact that matters occur in the course of an exchange in a directions hearing will often involve discussion about the merit of the case and the direction the case will take and, indeed, that was specifically commented on in the decision of GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Limited [2013] FCAFC 150 (‘GlaxoSmithKline’).
The point was made by counsel for the Respondent, as the point was made in GlaxoSmithKline, that the expression of a view by a judicial officer in the course of a hearing, in particular, a directions hearing, does not necessarily indicate that the judge has closed their mind.[5]
[5] GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Limited [2013] FCAFC 150 [43].
On a fair reading of the exchange, following the point where I said that the case was a waste of time, I indicate that my mind was not closed. It must be borne in mind that, when the exchange occurred, I specifically referred back to the decision of the Court, where I found that there was a case to be tried. Regardless, given that the Court was involved in the process of case management, the central purpose of case management is to enable the parties and the Court to deal with matters efficiently and to avoid costs being incurred unnecessarily by the parties.
There is a real risk in this case, in my view, that the Applicant would appeal any decision that the Court made to refuse recusal. The Applicant has already pursued an appeal of a decision, even though the decision found that she had an arguable case and preserved the central cause of action in her favour. I have not commenced hearing evidence in the case, the matter having been listed for hearing on 9 November 2018. The costs of any appeal are likely to be substantial to both parties. I am very mindful of the qualifying comments of the High Court in Ebner in relation to the prudence of a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification.
For the reasons I have set out, in my view, there are real doubts as to whether sufficient grounds have been advanced to support recusal. Whilst I do not accede to the application for me to disqualify myself from the case, I will to relist the matter for hearing before Judge Mercuri on 15 and 16 November 2018. Judge Mercuri has experience and expertise in this field and is available to deal with the matter. I do that in order to avoid the risk of the parties being exposed to further costs when the matter can be relisted without substantial inconvenience to the parties or the Court.
I reserve the costs of the application, that having been the order sought by the Applicant in relation to costs.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 5 November 2018
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