EIB19 v Minister For Immigration and Anor (No.3)

[2020] FCCA 1187

FEDERAL CIRCUIT COURT OF AUSTRALIA

EIB19 v MINISTER FOR IMMIGRATION & ANOR (No.3) [2020] FCCA 1187

Catchwords:
PRACTICE & PROCEDURE – Oral application for recusal – whether a fair-minded lay observer might reasonably apprehend that the Court might not bring an independent and impartial mind to the determination of the matter on its merits – oral application for recusal refused.

Applicant: EIB19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2835 of 2019

Judgment of: Judge Street

Hearing date: 5 May 2020

Date of Last Submission: 5 May 2020

Delivered at: Sydney

Delivered on: 5 May 2020

REPRESENTATION

Counsel for the Applicant: Mr J Williams via Microsoft Teams

Solicitors for the Applicant: Barriston Lawyers

Counsel for the Respondents: Mr T Reilly via Microsoft Teams

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The applicant’s oral application for recusal is refused.

DATE OF ORDER: 5 May 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2835 of 2019

EIB19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. In the course of the hearing by Microsoft Teams, Mr Williams of counsel on behalf of the applicant has made an application for a recusal by the Court. Mr Williams alleges that the conduct involved is the Court preventing him putting submissions and preventing him being able to develop his arguments and/or to respond to criticism.

2. The conduct of Mr Williams to date has been unusual. Mr Williams has exercised his powers as an advocate in making assertions from the bar table of a very serious kind in respect of breach of model rules and unconscionable conduct and then putting submissions which might be regarded as of an unusual kind by an advocate.

3. The Court is, nonetheless, alive to the fact that Mr Williams is endeavouring to advance his case on behalf of his client. The adverse rulings by the Court in relation to Mr Williams’ application are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Court might not bring an independent impartial mind to the determination of the matter on its merits.

4. Further, the Court identifying for counsel the duty it expects counsel to adhere to is, again, not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Court might not bring an independent and impartial mind to the determination of the matter on its merits.

5. The Court’s observations in requesting Mr Williams to listen and the Court’s observations in relation to the content of what it expects to be put by competent counsel is not one identifying any reasonable basis upon which one might conclude that the Court would do other than bring an open mind to the determination of the matter on its merits. The observations made by the Court are trying to assist Mr Williams by making him focus on what are proper matters for submissions and what are proper matters to address.

6. When the Court asks a question of a legal representative, the Court is entitled to expect that legal representative to respond. It is most unusual conduct, which this Court has not encountered, to have a legal practitioner interrupting a judge during the course of delivery of reasons. It is most unusual conduct for the Court to encounter the legal practitioner laughing in the course of the reasons being delivered in a recusal application.

7. The conduct of Mr Williams is one in which the Court understands and accepts that Mr Williams is seeking to advance strenuously his client’s interests but it is most important that this is done in an appropriate, courteous manner to the Court, consistent with the standards that the Court is entitled to expect of counsel.

8. Mr Williams’ conduct to date has, in fact, departed from those standards but that is not a matter by reason of which this Court has any pre-determined view in respect of the merits of the client’s application. It is one in respect of which the Court intends to proceed with the hearing and continue to give Mr Williams an appropriate opportunity to put submissions once the evidence has been concluded.

9. The Court was in the course of the hearing trying to identify evidence when the application for a recusal was made. The application was made at a point of the time when the court book had been marked as an exhibit and the Court was asking whether or not the affidavit of the applicant should be admitted into evidence.

10. It was at that point that Mr Williams started interrupting the Court again and speaking over the Court. Mr Williams then wanted the opportunity to address the Court in relation to the chastising by the Court of his behaviour, rather than responding to the particular question asked. It is not an opportunity for Mr Williams to engage in making commentary about whether the Court’s rulings or whether the Court’s questions, in his mind, are unfair.

11. It is most important that Mr Williams conducts the case consistently with the standards of a legal practitioner. That is what the Court is entitled to expect from a legal practitioner. While the Court has identified the criticisms that it has expressed so far in relation to the conduct, the Court has done so to try and assist Mr Williams understand and focus upon the duty that he needs to comply with in presenting his client’s case.

12. The Court has not, by reason of identifying the need to comply with those standards, engaged in conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Court might not bring an independent and impartial mind to the determination of the matter on its merits. It is for these reasons the Court makes make the following order.

I certify that the preceding twelve (12) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 5 May 2020 and the parties were sent a sealed copy of the Court’s orders.

Date: 19 May 2020