Fernando v Hoban Recruitment Pty Ltd
[2025] FedCFamC2G 1600
•30 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fernando v Hoban Recruitment Pty Ltd [2025] FedCFamC2G 1600
File number: PEG 197 of 2025 Judgment of: JUDGE LADHAMS Date of judgment: 30 September 2025 Catchwords: PRACTICE AND PROCEDURE – Application made by applicant for recusal on the basis of apprehended bias – application dismissed. Legislation: Fair Work Act 2009 (Cth) pt 3-1, s 361
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) rr 4.06, 4.07, 9.32, 23.08
Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2003) 279 CLR 148; [2023] HCA 15
Division: Division 2 General Federal Law Number of paragraphs: 74 Date of hearing: 17 September 2025 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Mr J Catchpole Solicitor for the First Respondent: Edge Legal Counsel for the Second Respondent: Mr J Carroll Solicitor for the Second Respondent: State Solicitor’s Office ORDERS
PEG 197 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: WANNAKUWATTEMITIWADUGE LLOYD NIRMALIN FERNANDO
Applicant
AND: HOBAN RECRUITMENT PTY LTD ABN 88 052 201 313
First Respondent
WESTERN AUSTRALIAN SPORTS CENTRE TRUST (VENUESWEST) ABN 47 894 197 015
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
17 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The applicant’s application for Judge Ladhams to recuse herself is dismissed.
2.Reasons for order 1 will be published from chambers at a later date.
3.If either respondent wishes to make an application for summary judgment under r 23.08 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth), such an application is to be made by filing an application in a proceeding supported by an affidavit by 4:30pm on 1 October 2025.
4.If either respondent files an application in a proceeding and affidavit in accordance with order 3 above:
(a)the respondents are to file and serve any submissions in support of the application in a proceeding by 4:30pm on 22 October 2025;
(b)the applicant is to file and serve any submissions in response to the application in a proceeding by 4:30pm on 12 November 2025; and
(c)
the application in a proceeding is listed for an interlocutory hearing on
3 December 2025 at 10:00am AWST.
5.The application in a proceeding filed by the applicant on 16 September 2025 is to be listed for further mention on 3 December 2025 at 10:00am AWST.
6.The parties have liberty to apply.
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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
On 17 September 2025, at a directions hearing, Mr Fernando asked me to recuse myself from this matter, due to an alleged apprehension of bias. After hearing from the parties, I made the following orders (amongst others):
1.The applicant’s application for Judge Ladhams to recuse herself is dismissed.
2.Reasons for order 1 will be published from chambers at a later date.
These are the reasons referred to in order 2.
THE APPLICATION FOR RECUSAL
Mr Fernando’s substantive application to this Court, which alleges that the respondents contravened the general protection provisions in Part 3-1 of the Fair Work Act 2009 (Cth) (Fair Work Act), has come before me on two occasions. The application was listed before me for a first court date on 1 July 2025. On that occasion, I made an order granting Mr Fernando leave to file an amended application and Form 4 and I made orders regarding the filing of responses by the respondents. I also listed the matter for a directions hearing on 17 September 2025.
Following the first court date, Mr Fernando sent a number of emails to my chambers. In some of these, he requested that I recuse myself due to a reasonable apprehension of bias. Mr Fernando did not file any application in a proceeding or make any formal application for me to recuse myself. However, in circumstances where Mr Fernando is self-represented, my associates indicated that I would hear from him about this issue at the commencement of the directions hearing on 17 September 2025.
At the commencement of the directions hearing on 17 September 2025, I referred to Mr Fernando’s emails and asked if he was still requesting that I recuse myself. I explained to the parties that the matter was before me for early case management. This may involve making orders prior to referring the matter to mediation, including in relation to any application for summary dismissal (which had been foreshadowed by the first respondent). I explained that if the matter proceeded beyond any mediation, it would then be referred to a judge for further case management and hearing, which may or may not be me. I understood Mr Fernando’s response to be that he no longer asked me to recuse myself, and the directions hearing proceeded on that basis.
Toward the end of the lengthy directions hearing, Mr Fernando referred to a request he made for the Court to make a pro bono referral so that he could be legally represented in this matter. I declined to make a pro bono referral. Mr Fernando then asked that I recuse myself as he did not think I would treat him fairly.
I treated this as an oral application for recusal and heard submissions from all parties.
When Mr Fernando was invited to explain the basis upon which he asked me to recuse myself, he submitted:
Well, I don’t see any – that you are going to be fair in this case. You have – you have shown a lack of detecting the wrong things, right. This is – this is very undigestible to me, right. And some of the things you have stated in the previous hearing, it doesn’t seem you could be fair on this case, and you would be more likely siding with the other people – other side. That’s why I want you to withdraw yourself from this case.
…
I have given those things in writing, your Honour, and some of the things, I have got it wrong, and I have apologised for that, and some of the other things, and I’m pretty sure I’m right, and I have given those reasons in writing.
…
And also, I don’t see any reason why you should not refer this to a pro bono, and all these things have shown me that you’re not the person to judge this case.
When invited to identify the basis on which a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the matter, Mr Fernando submitted:
First thing, I don’t have any experience with you outside this court boundary, right. And I have not made such an application previously with regard to any of the previous judges I have come across. But in this case, I have a feeling that you will not be fair. … some of the things that you have stated, right, you have gone way outside with this other side. When – right – when they’re not side – they’re not job – that is not their job to be my lawyer, right, and advise me what to do, right, your Honour. And you have gone to support this kind of things. And you have – basically, you have supported in some ways what they were saying. Blank denial, right. And you have said they have done nothing wrong. Your Honour, I don’t see – I don’t see – I’m not an expert, but it’s my gut feeling that you will not be a fair person in this case.
Mr Catchpole, Counsel for the first respondent (Hoban Recruitment), submitted that there is no basis on which I would recuse myself and opposed the recusal application. Mr Catchpole submitted that Mr Fernando’s submissions, at their highest, amount to ‘You disagree with me’ or ‘You’re not doing what I’ve asked you to do’, which do not form the basis on which a fair-minded lay observer would conclude that I am biased in this matter.
Mr Carroll, Counsel for the second respondent (VenuesWest), submitted that there was no basis on the material filed or what was said at the directions hearing to warrant recusal. He otherwise adopted the submissions of Mr Catchpole.
Given Mr Fernando referred to matters identified in his emails, it is necessary to identify the matters in his emails.
In an email sent on 10 August 2025, Mr Fernando relevantly submitted that the ‘current presiding judge … is unfit to continue, due to either bias or lack of experience in dealing with complex workplace law disputes’, with a reasonable apprehension of bias arising based on ‘conduct and decisions observed during the course of these proceedings’. Mr Fernando stated that ‘certain rulings and directions to date demonstrate a failure to properly apply or consider relevant law, facts, and evidence, to the prejudice of the applicant’ and that the presiding judge has taken steps that ‘demonstrate an inability to conduct the matter competently and consistently with the interests of justice’.
The email contained the following, more detailed submission:
1. Procedural Background
•In my original application, I clearly identified facts and conduct that constituted breaches of workplace laws, including retaliation for exercising workplace rights. I expressly referred to relevant legislation in prior correspondence to the Court.
•The 2nd respondent’s representative, a government solicitor, was the only party to allege that my application failed to specify which workplace law provisions were breached. When the Judge directly asked the 1st respondent’s representative whether they had made a similar claim, their answer was “no.”
•Without my consultation and in my absence, the Judge ordered that I submit amendments by 15 July 2025 and vacated the scheduled July hearing. This order appeared to be based solely on the submissions of the 2nd respondent. Upon my written objection to the registry-stating that no amendment was warranted-the vacation of the hearing was revoked, and the matter proceeded to the originally planned date.
2. Concerns Arising from the Directional Hearing
•At the hearing, the Judge stated that it was “not clear to the Court” what sections of workplace law or the Fair Work Act were breached, and gave me “one more chance” to amend the application.
•I responded that it was for the respondents-if they disputed the breaches-to prove why the Fair Work Act was not contravened, not for me to amend an already complete application.
•I expressed that the 2nd respondent’s assertion was unfounded and served to delay proceedings, and that legal professionals who raise such arguments, despite the evidence, undermine procedural fairness.
•The Judge, in response to my comment about the “stupidity” of the argument raised, said “We don’t want to feel stupid, and we want to feel equal.” This remark, in my view, was inappropriate and reflected a defensive posture inconsistent with judicial impartiality.
3. Orders on Amendment Timeframe
•When asked how much time I needed if amendments were to be made, I said six weeks-citing the unnecessary complication of the matter, my other commitments, and the possible need for legal assistance.
•The respondents argued for four weeks. The Judge granted six weeks but stated I would be penalised if I did not submit amendments-effectively compelling compliance with an order I maintain was unwarranted.
4. Grounds for Judicial Replacement
The Judge’s conduct demonstrates:
•Reliance on one party’s submissions without equal weight to the other side’s position.
•Failure to acknowledge legislative breaches that were apparent on the face of the original application.
•Inappropriate courtroom remarks that could suggest bias or a lack of professional detachment.
•Misapplication of judicial discretion, by compelling unnecessary amendments rather than allowing the matter to proceed to determination.
5. Loss of Confidence in Judicial Conduct
The cumulative effect of the above has led to a loss of confidence in the presiding judge’s ability to manage this matter fairly and competently. For the preservation of public confidence in the judiciary and in accordance with the principle that justice must be both done and be seen to be done, recusal is appropriate.
If the Judge considered the legislation inadequate, judicial powers allow for interpretation or recommendation for amendment within the limits of the law, with higher court oversight-not the imposition of unnecessary procedural hurdles.
Given these factors, I respectfully request that the presiding judge be replaced with one whose competency, conduct, and experience are commensurate with those of highly regarded jurists such as Honourable Justice Carr (retired) and Honourable Justice Anthony Siopis (retired), both of whom have demonstrated exceptional capability in handling complex matters with impartiality and procedural fairness.
…
6. Relief Sought:
That the presiding judge recuse themselves from further involvement in this matter; and
That the matter be re-allocated to another judge.
Recuse – the judge is suspected of not being neutral, and therefore, she should step away from the case.
In an email sent on 14 August 2025, Mr Fernando referred to an additional ground to warrant my recusal. That ground was that I failed to give any regard to his reasonable and clear request that hearings not be scheduled on Mondays or Tuesdays, on the basis that Mr Fernando is undertaking an employment-based course on that day. Mr Fernando asserted that when this was queried in Court, he explained this constraint, but the Court’s scheduling proceeded in disregard of his request. Mr Fernando subsequently, in an email sent on 15 September 2025, apologised for his ‘mistaken belief’ that court matters were being listed on days that coincided with his full-time study hours and acknowledged that ‘the allocation of hearing dates is a matter solely for the Court’s discretion and scheduling’.
Mr Fernando sent a further email to the Court on 8 September 2025, in which he also referred to his request for me to recuse myself. In this email, he refers to emails from my chambers and registry about appropriate communications with the Court and suggests the ‘priority’ is my recusal and, failing that, the respondents’ lawyers should be removed for misconduct. It is not clear whether the emails from the registry and my chambers are intended to be an additional ground for my recusal. For the avoidance of doubt, I will proceed on the basis that Mr Fernando intends the email correspondence to be a further basis for my recusal.
CONSIDERATION OF THE APPLICATION
Approach to considering the application
An application of bias is a serious allegation that must be distinctly raised and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [69]. Many of the matters raised by Mr Fernando are, with respect, confusing and have not been raised in a clear manner. However, I am mindful that I am called upon to consider whether my own conduct gives rise to any reasonable apprehension of bias. I have therefore interpreted Mr Fernando’s concerns as broadly as possible, to ensure that the consideration I give to this matter is as robust as practicable.
In considering Mr Fernando’s application, I have considered the documents on the Court file in relation to this matter, including email correspondence, and I have considered the issues addressed in open Court.
Even though I have considered the email correspondence for the purposes of this recusal application, it is important to note that this does not mean any email correspondence will be considered for the purposes of any other application in a proceeding or final hearing of this matter. As indicated to the parties previously, any documents they rely on should be filed in the usual way, and evidence and submissions should not be contained in emails.
The relevant tests for apprehended bias
It would be appropriate for me to recuse myself from dealing further with this matter if Mr Fernando could show that a reasonable apprehension of bias arises. The test for apprehended bias 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: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner) at [6]; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2003) 279 CLR 148; [2023] HCA 15 (QYFM) at [37].
The application of the test requires:
(a)the identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits;
(b)articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and
(c)assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer: Ebner at [8]; QYFM at [38].
I address each of the matters Mr Fernando has raised in the chronological order in which the events occurred.
The alleged order prior to the first court date and vacation of the first court date
Mr Fernando alleges that, without consultation and in his absence, I ordered Mr Fernando to submit amendments by 15 July 2025 and vacated the scheduled July hearing, based on submissions advanced by VenuesWest. Mr Fernando further alleges that he objected in writing to the registry and then the vacation of the hearing was revoked and the matter proceeded as listed.
Mr Fernando has not provided evidence in support of this allegation and I cannot see anything on the Court file to support the factual premise of Mr Fernando’s allegation. The ‘Notice of Filing and Hearing’, which forms the cover page to Mr Fernando’s application, indicates that the matter was listed for a first court date on 1 July 2025. There is nothing on the Court file to indicate that I, or any other Judge, made any Order prior to the first court date on 1 July 2025, and there is nothing on the Court file to indicate that the first court date was ever vacated.
There is correspondence on the Court file that indicates that Mr Fernando provided to the Court a proposed consent order signed on behalf of both respondents, which was not signed by him. The consent order proposed, amongst other things, that the directions hearing listed on 1 July 2025 be vacated and that Mr Fernando file and serve an amended application by 15 July 2025. My associate sent an email to the parties on 25 June 2025 indicating that:
In circumstances where consent orders have not been agreed between all three parties, the first court date will proceed as listed on 1 July 2025 and her Honour Judge Ladhams will hear from the parties in relation to any relevant issues that need to be addressed.
The Court did not make an Order in the terms of the consent order proposed by the first and second respondents. Mr Fernando has not established the factual premise relevant to this aspect of his complaint.
In any event, even if Mr Fernando could establish that the Court made an Order as alleged prior to the first court date, and then vacated the Order and relisted the matter, it is difficult to see how that might cause a fair-minded lay observer to apprehend that the judge might not have brought an impartial mind to the question to be determined. On Mr Fernando’s allegation, he was given what he wanted, namely, for the first court date to proceed on 1 July 2025.
Matters arising from the conduct of the first court date
Many of the concerns raised by Mr Fernando relate to matters arising at the first court date.
The issues raised by Mr Fernando include that I:
(a)directed him to file an amended application, which he considered to be unnecessary;
(b)gave him six weeks to file the amended application, but indicated that he would penalised if he did not do so;
(c)made a comment that ‘we don’t want to feel stupid’;
(d)failed to acknowledge breaches that were evident on the face of the application;
(e)relied on one party’s submissions without weight to the other side; and
(f)listed the matter on a Monday or Tuesday, when Mr Fernando has other commitments.
The Court’s direction to file an amended application and related matters
On 1 July 2025 I made an order that:
The applicant has leave to file and serve an amended application and an amended form 4 by 4:30pm on 12 August 2025.
This order was based in part on a minute of proposed orders provided by the respondents, which proposed that Mr Fernando file an amended application by 15 July 2025.
At the first court date, I explained to Mr Fernando that I considered his application to be unclear in relation to what he alleged happened and why he believes the Fair Work Act was contravened. I referred to Part G of the Form 4 and indicated that the Court looks at this part of his Form 4 to understand what sections of the Fair Work Act he alleges have been contravened and for a clear and succinct statement of the facts he relies on to say why the respondents contravened those sections. I explained that the application as it stood contained a lot of text of emails and communications that made it difficult to read and understand.
When I explained that I proposed to give Mr Fernando an opportunity to file an amended application and form 4, he expressed the view that his application was simple and the respondents should be required to explain why they had not contravened the Fair Work Act.
In explaining the order I proposed to make, I said to Mr Fernando:
I am telling you that I find your application difficult to understand and I want you to – I want to give you an opportunity to present your best case to the court. I want to give you an opportunity to think carefully about exactly what it is that you are alleging and how you can present that in a clear and precise way so that the respondents know the case they have to answer. Now, I’m going to give you leave to do that, which means you have the opportunity. If you choose not to file an amended application, then that is a matter for you; however, if the respondents are unable to understand your application they may ask me to summarily dismiss your case or they may ask me to take some other action.
I’m not saying that I will agree to do that, okay, because I do give a lot of leeway to self-represented applicants, but I want you to understand the possible consequences if you choose to simply rely on the application as filed.
Initially, I proposed to give Mr Fernando until 15 July 2025 to file an amended application and form 4, based on the date in the minute of proposed orders. Mr Fernando expressed the view that that would not be enough time. I asked how long he would need and he responded six weeks. The respondents proposed that Mr Fernando be given three to four weeks, but after hearing from the parties, and taking into account Mr Fernando’s representation that he may seek legal advice, I gave Mr Fernando six weeks to file an amended application and form 4.
Based on the factual scenario evident from the Court documents and the transcript of the first court date, the following factual premises can be accepted for the purposes of Mr Fernando’s concerns summarised at [29(a), (b), (d) and (e)] above:
(a)I did make a direction for Mr Fernando to file an amended application and form 4, in circumstances where he expressed his belief that his application was simple, albeit the direction was framed as a grant of leave, rather than a requirement;
(b)I gave Mr Fernando six weeks to file the amended application, as requested by him;
(c)I did not state that Mr Fernando would be ‘penalised’ if he failed to file an amended application, but did put him on notice that if the respondents were unable to understand his application, they may ask the Court to summarily dismiss the application or to take some other action;
(d)I did state several times at the first court date that I considered the application and form 4 to be unclear (which may or may not be what Mr Fernando is referring to when he asserts that I failed to acknowledge breaches that were evident on the face of the application), but there was otherwise no assessment of the merits of the claims underling the application discussed at the first court date; and
(e)I made an order that was based, in part, on an order requested by the respondents, and I infer that this is what Mr Fernando is referring to when he asserts that I preferred the position of one party over another.
In considering whether these matters give rise to a reasonable apprehension of bias, the fair-minded lay observer should be attributed with certain knowledge.
First, the fair-minded lay person would know that the purpose of the first court date is not to make findings on the substantive issues raised by the application. Rather, it is to make orders to progress the application.
Second, parties may provide minutes of proposed orders for the Court’s consideration at, or prior to, a first court date. In this case, the respondents prepared a minute of proposed orders, but Mr Fernando did not.
Third, several provisions in Part 3-1 of the Fair Work Act are civil penalty provisions. The respondents are entitled to clearly know the case they have to meet, particularly given the reverse onus of proof in s 361 of the Fair Work Act. That provision places the onus on the respondents to prove that they did not take a particular action for a particular reason or with particular intent if taking the action for the particular reason or with the particular intent would amount to a contravention of Part 3-1 of the Fair Work Act. However, it is for Mr Fernando, as the applicant, to assert that either or both of the respondents took a particular action for a particular reason or with a particular intent. Mr Fernando continues to bear the onus of establishing other elements of the cause of action he relies on.
I do not consider that a fair-minded lay observer might reasonably apprehend that my explaining to Mr Fernando that his application was unclear, and giving him an opportunity to amend it within a time frame nominated by him, might suggest that I am not approaching my task with an impartial mind. That remains the case even in circumstances where the proposal for an amended application to be filed was made by the respondents.
It is very common, at a first court date, for a party who has filed an application that, in the respondent’s reasonable view, does not clearly put the respondent on notice of the case it has to answer, to be given an opportunity to file an amended application (or form 2 or form 4 as the case may be) or to be invited to articulate their case more clearly in a statement of claim. If such a course is not taken, when an application is unclear, there is a possibility that the application may be summarily dismissed upon the making of an appropriate application. Alternatively, there is the possibility that legally represented parties will incur additional costs, and the questions for the Court’s determination may be obscure, if the matter proceeds to a hearing on an unclear application. I do not consider that a fair-minded lay observer might reasonably apprehend that by giving Mr Fernando an opportunity to file an amended application and form 4, at the suggestion of the respondents, I might not bring an impartial mind to any question to be determined in this proceeding.
I also do not consider that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to questions to be determined because I put Mr Fernando, who is a self-represented applicant, on notice of the possibility that the respondents may make an application for summary dismissal if his application is unclear. It is appropriate for a judge to make basic explanations to self-represented litigants. In this case, it was appropriate to explain to Mr Fernando that his application was, in my view and apparently in the view of the respondents, unclear. In circumstances where Mr Fernando was evidently reluctant to file an amended application, it was appropriate to take steps to enable Mr Fernando to make an informed choice as to whether or not to file an amended application. It is not a basis for a fair-minded lay person to apprehend bias.
Mr Fernando has not articulated any logical connection between giving him six weeks, as he requested, to file the amended application and form 4 and the alleged deviation from me deciding the matter impartially. There is no basis upon which a fair-minded lay observer might reasonably apprehend that I might not have brought an impartial mind to the matter by giving Mr Fernando the time he requested to file his amended application.
Other comments made during the first court date
Mr Fernando alleges that, in the course of the first court date, I stated, ‘We don’t want to feel stupid, and we want to feel equal’.
The transcript of the first court date on 1 July 2025 does not show that I, or any other person, made this comment. I have considered the whole of the discussion at the first court date to try to understand the comments Mr Fernando may be referring to, in particular, those that might have been interpreted as relating to a sentiment that nobody wants to feel stupid and everyone wants to feel equal.
The transcript shows that when I first raised the order proposed by the respondents with Mr Fernando, I said:
What the respondents are proposing is that you have an opportunity to file an amended application. Now, the application that you have filed may be clear to you, but it is not clear to the court, and I suspect it’s not clear to the respondents, exactly what it is that you are alleging happened and why you say the Fair Work Act was contravened.
Mr Fernando proceeded to explain his view that the application was clear and the respondents should show why they did not contravene the Fair Work Act.
After I explained to Mr Fernando that I would give him an opportunity to file an amended application, the following exchange took place:
MR FERNANDO: Right, I follow what you’re saying and I will try my best to do. Right. I am here without legal assistance and these are legal professionals asking what is obvious to them, asking me to explain. That means they are not professionals in this field.
HER HONOUR: I don’t think that’s a fair comment, Mr Fernando.
Later at the first court date, in the course of determining an appropriate time frame for the filing of an amended application, the following exchange took place:
MR FERNANDO: Right. The main thing is this application is ready to go. Right. These guys want to complicate things more than what they are. If they can’t understand the very basics, they should not be in this profession.
HER HONOUR: Mr Fernando, please stop making comments like that. They are unhelpful and I am telling you that I also do not understand your application clearly.
When I was making orders at the first court date, the following exchange took place:
MR FERNANDO: Just to let you know, and – the respondents have a decency to respond to the claim form instead of just saying – just asking me to indicate which Fair Work Act is in breach. They have a responsibility to – based on the claims, they can tell me why those ones are not in – not been breached. Right. That would be a best thing to do.
HER HONOUR: Mr Fernando, the response - - -
MR FERNANDO: If they think – if they think – if they think those things that I have claimed have not breached Fair Work Act, then they have a chance here to respond, “Look, here this one has not breached the Fair Work Act”.
HER HONOUR: Mr Fernando, the responses to your application - - -
MR FERNANDO: I can tell you from the beginning – I can reverse the response they have given back to them.
HER HONOUR: Okay.
MR FERNANDO: So ask them to watch this step. This will be taken all the way if I have to.
HER HONOUR: Okay. Mr Fernando, I am going to - - -
MR FERNANDO: Yes. I tell your Honour - - -
HER HONOUR: - - - finish making orders now.
MR FERNANDO: This is not my first experience. Tell them, I have taken people down more than they cannot even think in their life in this Federal Court.
HER HONOUR: Mr Fernando, stop. This is inappropriate. It is not helpful to interject. The court will assess your claims at the appropriate time and decide whether you have made out your case.
MR FERNANDO: Thank you. Thank you, your Honour.
HER HONOUR: I am trying to give you the best opportunity to present your case. I will not tolerate any party to this proceeding being treated with a lack of respect. There is – we will all proceed respecting each other.
I have considered whether my interventions during the first court date, in response to comments of Mr Fernando which may demonstrate a lack of respect to the respondents or their lawyers, might cause a fair-minded lay person to reasonably apprehend that I might not bring an impartial mind to the questions that I must determine. I do not consider that my comments during the first court date demonstrate apprehended bias.
A fair-minded lay observer would be aware that there is an expectation that all parties proceed in a respectful manner in Court proceedings. I do not consider that a fair-minded lay person might reasonably consider that my comments to put Mr Fernando on notice of the Court’s expectation that all parties be treated with respect indicates that I might not bring an impartial mind to the questions I need to determine in case managing this matter (or in deciding questions at a final hearing, if I am subsequently required to do that).
Listing the matter on a Monday or a Tuesday
Mr Fernando raised a concern about the Court listing matters on a Monday or a Tuesday, when he has study commitments. Although Mr Fernando has subsequently acknowledged that the allocation of hearing dates is a matter for the Court’s discretion, it is somewhat unclear whether this has been abandoned as a ground for apprehended bias. Out of an abundance of caution, I proceed on the basis that this issue remains a part of Mr Fernando’s bias allegation.
The first court date took place on a Tuesday. There is nothing before the Court to suggest that Mr Fernando told any person at the Court that he was not available on the day on which the first court date was listed.
At the first court date, I proposed relisting the matter on 15 September 2025. I asked Mr Fernando whether he was available on that date, and after I indicated it was a Monday, he requested that the directions hearing be held on a Wednesday, Thursday or Friday, as he is undertaking an employment course on Mondays and Tuesdays until December. Upon all parties confirming they were available on Wednesday 17 September 2025, I listed the matter for a directions hearing on that date.
Mr Fernando has not explained how either:
(a)listing the first court date on a Tuesday, when there was no information before the Court at that time to suggest that Mr Fernando was not available on Tuesdays; or
(b)proposing to list a directions hearing on a Monday, before changing it to a Wednesday at Mr Fernando’s request,
might cause a fair-minded lay observer to reasonably apprehend that Court might not have brought an impartial mind to the matter. Nor is there any apparent reasonable basis on which a fair-minded lay observer might reasonably apprehend that the Court might not bring an impartial mind to its task based on the dates upon which the matter has been listed before the Court.
Emails regarding communications with the Court
It is unclear whether Mr Fernando raises email communications as a basis for apprehended bias. He has raised the issue in an email to the Court, in which he has indicated that his priority is that I recuse myself, and failing that, I should remove the lawyers for both respondents.
Mr Fernando perceives apparent inconsistency between:
(a)an email sent by an officer of the Court’s registry to the parties on 7 August 2025, which stated:
Parties should only communicate with chambers and the registry … where it is necessary and appropriate … documents or information for the court file must be provided by approved court form.
(b)an email from my associate to the parties on 8 September 2025, which stated:
The Court notes for the avoidance of any doubt, that it is normal for parties to communicate with each other and any correspondence between the parties does not need to copy in the Court.
However, any communications made to the Court should include all parties’ legal representatives.
The latter email was sent after Mr Fernando complained to the Court that Hoban Recruitment’s legal representatives communicated directly with Mr Fernando.
Mr Fernando has expressed the view that the latter email is intended to ‘water down’ the Court’s previous instruction. I infer that he interprets this as showing preferential treatment to the respondents.
There is no inconsistency in the emails or the instructions therein. The email from registry conveys that communications to chambers and to the registry should only be made where it is necessary and appropriate. This does not place any restriction on communications between the parties.
The second email clarifies that the parties may communicate directly with each other, without including the Court in the correspondence, but that any communication to the Court needs to be copied to all parties.
There is no basis on which a fair-minded lay person might reasonably apprehend that I might not bring an impartial mind to the issues to be decided based on these emails.
Matters arising at the directions hearing on 17 September 2025
Further discussion about the email from Hoban Recruitment’s lawyer to Mr Fernando
In his oral submissions to the Court, Mr Fernando alluded to it not being the respondents’ lawyers’ job to be his lawyer, or to advise him what to do, and I supported that. I understand this to be a reference to a complaint made by Mr Fernando that the lawyer for Hoban Recruitment wrote to him to request that he ‘file a further amended application which precisely and briefly states the factual basis for the breaches alleged’ and that if he did not do so by 17 September 2025, Hoban Recruitment would make an application asking for the substantive application to be dismissed under r 23.08(a) or (c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (GFL Rules).
At the directions hearing on 17 September 2025, in discussing an application in a proceeding which Mr Fernando filed seeking, amongst other things, that the Court remove the lawyer for Hoban Recruitment, the following exchange took place:
HER HONOUR: Okay. Mr Fernando, the only reason I can see in your document, why you’re upset with the respondents, is because the first respondent sent you an email that suggested you amend your statement of claim, sorry, your application, and suggested that if you didn’t - - -
MR FERNANDO: And also, he’s not supposed to do it - - -
HER HONOUR: - - - No, and suggested that if you didn’t, they may seek summary dismissal.
MR FERNANDO: Your Honour, this is very – I will tell you, this is very, very simple to understand here, right? Who – are they my counsellor, right? Are they going to give me something to jeopardise their client’s position, right? He is doing something he’s not supposed to do, especially directly with me. If he did that with you, that’s a different issue, right? He’s dealing with me, right? Is he my counsellor to advise me what to do? Do to make my case better.
HER HONOUR: Mr Fernando, can I just indicate, that is not advising you what to do. It is putting you on notice of the action that the respondent intends to take. In this court - - -
MR FERNANDO: Well, he said if I don’t, if I don’t - - -
HER HONOUR: - - - Yes, in this court, in this - - -
MR FERNANDO: He’s not going to give me an advice that would jeopardise his client’s position, right? He did that to do something that would jeopardise my position.
HER HONOUR: Mr Fernando, in - - -
MR FERNANDO: He’s not supposed to act on my behalf, your Honour, right? He’s supposed to act on behalf of the client, and with the courts, his duties, that’s with you. He has nothing to tell me here, your Honour.
HER HONOUR: Okay, Mr Fernando, I understand that this has upset you. From the court’s point of view, Mr Catchpole has not done anything wrong by sending that email to you. In fact, from the court’s point of view, if he had brought an application that he is entitled to bring, which is an application for summary dismissal, without putting you on notice that he was going to do that and giving you a chance to address the statement of – the application, I would have been very upset. He is doing the right thing by putting you on notice of the action that the respondent proposes to take. So - - -
MR FERNANDO: What is the duty on behalf of his client, your Honour? Is he going to make the things worse for his client, or maybe to make things better for his client? His actions are in contrary.
HER HONOUR: What he is foreshadowing, Mr Fernando, is that he is going to bring a summary dismissal application on behalf of his client.
This exchange does not give rise to a reasonable apprehension of bias. A fair-minded lay person would understand that Hoban Recruitment was attempting, by its email correspondence, to put Mr Fernando on notice that:
(a)it considered his application as amended to still be unclear and requested that he amend it; and
(b)if he did not amend his application, Hoban Recruitment may seek summary dismissal.
My attempts to explain this to Mr Fernando, and to explain that the lawyer for Hoban Recruitment had not engaged in wrongdoing in the Court’s view, do not form a basis upon which a fair-minded lay person might reasonably apprehend that I might not bring an impartial mind to any questions I have to determine.
Refusal to issue a pro bono referral
The final matter referred to by Mr Fernando as indicating a reasonable apprehension of bias is my refusal to issue a pro bono referral for him to receive legal representation and advice in this matter. This refusal was made toward the end of the directions hearing held on 17 September 2025.
Mr Fernando has not articulated the connection between my refusal to issue a pro bono referral and why that may indicate that I may not decide the application in an impartial manner. His concern appears to be that a pro bono referral has been issued in his favour in other matters that he has had before the courts and therefore he does not understand why I will not make a pro bono referral in this case.
A fair-minded lay person would be attributed with knowledge that the Court may issue a pro bono referral certificate for a party to a proceeding to receive legal assistance: r 4.06 of the GFL Rules. However, a fair-minded lay person would also be aware that a party is not entitled to apply to the Court for a pro bono referral: r 4.07 of the GFL Rules. There is no entitlement to a lawyer in civil proceedings, and there is no requirement for Mr Fernando to be legally represented in this proceeding (such as there would ordinarily be if this proceeding was being conducted by a litigation guardian: see r 9.32(3) of the GFL Rules). A fair-minded lay person would also be aware that the pro bono resources available to the Court are scarce, and it would not be practicable for the Court to issue a pro bono referral for every applicant in a Fair Work matter who cannot afford to, or does not wish to, spend money on hiring a lawyer.
Taking these things into account, there is no basis for finding that a fair-minded lay person might reasonably apprehend that my refusal to issue a pro bono referral certificate indicates that I might not bring an impartial mind to any question to be decided in this matter.
Cumulative consideration of the various issues raised by Mr Fernando
In the discussion above, I have addressed each of the issues raised by Mr Fernando individually. Considering the issues cumulatively, I remain of the view that nothing raised by Mr Fernando might cause a fair-minded lay person to reasonably apprehend that I might not bring an impartial mind to any questions to be determined.
CONCLUSION
For the reasons above, I refused to recuse myself from further involvement in this matter.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 30 September 2025
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