Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 7)
[2024] FedCFamC2G 510
•5 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Haley v Laing O’Rourke Australia Management Services Pty Ltd (No 7) [2024] FedCFamC2G 510
File number(s): SYG 2432 of 2020 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 5 June 2024 Catchwords: INDUSTRIAL LAW – Practice and procedure – application for recusal – where a Judge delivers a judgment dismissing an application for a stay pending an application for leave to appeal (stay judgment) – where after a directions hearing the Judge causes an email (Email) to be sent to the respondent’s legal representatives making enquiries – whether a fair-minded lay observer might reasonably apprehend that the stay judgment was not even handed, or whether such lay observer might read the stay judgment as a draft respondent’s submission on appeal, and for these reasons reasonably apprehend that the Judge might not bring an impartial mind to the resolution of all outstanding matters - whether a fair-minded lay observer might reasonably apprehend that by causing the Email to be sent the Judge accused or inferred wrongdoing by the respondent’s legal representatives and for that reason the Judge might not bring an impartial mind to the resolution of all outstanding matters – application for recusal dismissed. Cases cited: Barakat v Goritsas (No 2) [2012] NSWCA 36
Charisteas v Charisteas [2021] HCA 29
Galea v Galea (1990) 19 NSWLR 263
Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 6) [2024] FedCFamC2G 434
Johnson v Johnson [2000] HCA 48
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28Division: Fair Work Number of paragraphs: 30 Date of hearing: 30 May 2024 Place: Sydney The Applicant: Appeared in person, by telephone Counsel for the Respondent: Mr G Hatcher SC, by telephone Solicitor for the Respondent: Mills Oakley Lawyers ORDERS
SYG 2432 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THOMAS HALEY
Applicant
AND: LAING O'ROURKE AUSTRALIA MANAGEMENT SERVICES PTY LTD
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
5 JUNE 2024
THE COURT ORDERS THAT:
1.The application for recusal made by senior counsel for the respondent at the directions hearing on 30 May 2024 is dismissed.
2.The hearing of oral submissions on the question of compensation and damages that is currently listed at 3:00 pm (AEST) on each of 19 and 20 June 2024 is vacated.
3.The hearing of oral submissions on the question of compensation and damages is listed at 3:00 pm (AEST) on each of 27 and 28 June 2024.
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
INTRODUCTION
In the course of a directions hearings on 30 May 2024, the first respondent (LOA), through its senior counsel, applied that I recuse myself on the ground of reasonable apprehension of bias. In these reasons for judgment I consider whether I should recuse myself.
Before I consider the grounds on which senior counsel relied, it will be necessary to set out the relevant background.
BACKGROUND
Events immediately after 28 March 2024
On 28 March 2024 I published reasons for judgment on the basis of which I made three declarations. I also ordered that the parties file and serve written submissions on two subjects, one of which was on damages and compensation.
On 8 April 2024 I made orders in chambers by consent extending the time by which the parties would file their submissions on damages and compensation. On 11 April 2024 LOA lodged for filing with the Western Australia Registry of the Federal Court of Australia an application for leave to appeal from the orders I made on 28 March 2024; and on 24 April 2024 LOA lodged an application for a stay.
On 14 May 2024 I pronounced orders by which I dismissed the application for a stay.[1] At that time the matter had already been listed for directions at 4.15 pm AEST on 28 May 2024.
[1] Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 6) [2024] FedCFamC2G 434
Directions hearing on 28 May 2024
By the time of the directions hearing on 28 May 2024 the parties had filed their written submissions on damages and compensation, and at the directions hearing there was discussion about whether there should be an oral hearing on the question of damages. After the applicant Mr Haley, indicated he wanted to make oral submissions on damages, counsel for LOA said he did not oppose an oral hearing, and further said as follows:
The only matter I raise in that respect is a practical one. Unfortunately, just due to me being jammed in a very long hearing that’s about to begin, the respondent’s going to bring in some alternative counsel to appear in relation to damages and penalties. So if there’s any indulgence that I would seek in relation to the scheduling of an oral hearing, I would just respectfully request a period of, perhaps, say, 3 weeks before they take place. Just to enable the alternative counsel to come up to speed.
I then made orders fixing the matter for an oral hearing at 3 pm AEST on 19 June 2024 and, if required, at 3 pm AEST on 20 June 2024.[2] I granted the parties liberty to apply in the event LOA wished to apply for a different day if their new counsel would not be available on 19 and 20 June 2024.
[2] These times were chosen to accommodate Mr Haley’s being resident in the United Kingdom.
At the directions hearing on 28 May 2024 Mr Haley enquired about the identity of the lawyer on behalf of LOA with whom he should communicate. Counsel for LOA said that Mr Davis, who had been the solicitor for the record, is no longer the solicitor on the record, but he was the solicitor on the record for LOA in its application for leave to appeal; and that Ms Sutton is now the lawyer on the record for LOA in the proceeding before me.
27 May 2024 – LOA lodges for filing application to the Federal Court for a stay
According to an affidavit Mr Davis made on 30 May 2024, at approximately 4:00 pm on 27 May 2024 he caused to be filed electronically in the Western Australian registry of the Federal Court of Australia an interlocutory application for a stay of this proceeding pending the determination of LOA’s application for leave to appeal it filed on 11 April 2024. At the directions hearing of 28 May 2024, counsel for LOA did not inform me that LOA had by then filed an application with the Federal Court for an order staying the proceeding before me. I do not know whether that is because counsel for LOA was not aware of that application or because, being aware, he considered it appropriate that it not be disclosed to me.
At 3.33 pm on 29 May 2024 Ms Sutton, LOA’s lawyer on the record, sent the following email to my Associate (emphasis added):
We refer to the case management hearing yesterday at which his Honour listed this matter for further hearing on the issues of compensation and damages on 19 June 2024 at 3pm, and if needed the following day, 20 June 2024.
As advised to the court by [counsel for LOA], due to his impending leave, it has been necessary for the respondent to instruct new senior and junior counsel in the matter. . . . . The new junior counsel in the matter, is instructed to appear at the hearing on compensation and damages. However, he is not available on 19 and 20 June 2024, being interstate on another matter.
In accordance with the liberty to apply granted by his Honour, we therefore respectfully seek that the hearing on compensation and damages be re-scheduled to a later date.
We can confirm that, subject to the Court’s convenience and the availability of the applicant, [new junior counsel] would be available at 3pm on any day in the week commencing Monday 24 June 2024. If dates in the week commencing Monday 24 June 2024 are not possible, we ask that the Court suggest further dates for the parties to consider.
We confirm that the applicant is copied to this correspondence.
At 5:47 pm on 29 April 2024, after Ms Sutton’s email was brought to my attention, I instructed my Associate to send an email (Associate’s Email) to the parties (errors in original).
The below email has been brought to the attention of Judge Manousaridis.
His Honour will list this matter for a directions hearing at 4:30 pm (AEST) on 30 May 2024.
. . . .
His Honour requests that at the directions hearing the respondent’s legal representative be in a position to provide information on the following matters:
a)At the directions hearing on 28 May 2024 his Honour understood that [counsel for LOA] said he would be unavailable to appear at the hearing on damages because he was retained to begin “a very long hearing”. [Counsel for LOA] said the following:
In relation to the damages and compensation issue, I certainly don’t have any opposition to that being the subject of an oral hearing. The only matter I might raise in that respect is a practical one. Unfortunately, just due to me, being jammed in a very long hearing that’s about to begin, the respondent is going to bring in some alternative counsel to appear in relation to damages and penalties. So if there is any indulgence that I might seek in relation to the scheduling of an oral hearing, I would just respectfully request a period of perhaps say 3 weeks before that takes place just to enable the alternative counsel to come up to speed.
In the below email, however, the words “due to his impending leave” are used in connection with Mr Jedrzejczyk’s not being available to appear at the hearing of submissions for damages. His Honour will seek clarification about the reasons for which [counsel for LOA] will not appear at the hearing on compensation and damages: is it because [counsel for LOA] is briefed to appear “in a very long hearing”, or is it because he will be going on leave? If [counsel for LOA] is briefed to appear “in a very long hearing”, his Honour proposes to ask details of that matter in which [counsel for LOA] is briefed to appear: its identity; when it is due to begin; and the expected length of the hearing.
b)Why did the respondent not make enquiries of the availability of counsel before the directions hearing of 28 May 2024?
c)In relation to the availability of [the new junior counsel], his Honour will ask if he is available on days earlier than 19 and 20 June 2024, and, if not, whether the respondent has made inquiries of the availability of other counsel on 19 and 20 June 2024 or earlier.
d)His Honour is aware that, on 27 May 2024, the respondent filed an application in the Federal Court of Australia for a stay. His Honour will enquire whether in [counsel’s] seeking the Court’s indulgence for time for the respondent to brief counsel, the respondent and its legal representatives had as a purpose the delaying of the hearing on damages and compensation to a date that would allow the respondent to have the application for a stay heard in the Federal Court before the hearing of submissions on damages and compensation?
e)However (d) is answered, ought [counsel] have informed the Court when seeking the indulgence that the respondent had on 27 May 2024 applied to the Federal Court of Australia for a stay?
Mr Davis’s affidavit
At 2:04 pm on 30 May 2024 Ms Sutton sent an email to my Associate attaching an affidavit of Mr Davis, which addresses matters raised in the Associate’s Email.
(a)In relation to paragraph (a) of the Associate’s Email, Mr Davis deposed to information conveyed to him by counsel about his court commitments, and of his being due to take leave at the end of those commitments. Mr Davis says that Ms Sutton’s reference of counsel’s “impending leave” was due to an “inadvertent miscommunication”. As I indicated to senior counsel at the directions hearing of 30 May 2024, I accept what Mr Davis deposes to regarding counsel’s court commitments, and I accept that it was due to an inadvertent miscommunication that, in her email to my Associate sent on 29 May 2024, Ms Sutton referred to counsel’s leave but did not refer to his court commitments.
(b)In relation to paragraph (b) of the Associate’s Email, Mr Davis deposed, and I accept, that on 27 May 2024 LOA briefed the new junior counsel.
(c)In relation to paragraph (d) of the Associate’s Email, Mr Davis deposed, and I accept, there was no intention to delay the hearing of damages and compensation.
Mr Davis did not in his affidavit address paragraph (e) of the Associate’s Email, although senior counsel addressed this at the directions hearing on 30 May 2024.
THE RECUSAL APPLICATION
As I noted at the beginning of these reasons, the recusal application occurred in the course of the directions hearing of 30 May 2024.
After appearances were announced, senior counsel began by saying there are “a number of matters I just wish to raise”. It is unnecessary to set out those matters. I then asked senior counsel a number of questions, which he addressed; and it is also unnecessary to set these matters out. It is necessary, however, to set out the transcript from the point at which senior counsel indicated that he intended to make a recusal application. The transcript includes the following (emphasis added):
MR HATCHER: One could form a view from the decision on the stay application that your Honour has a very definite view on the way in which this case should resolve itself. It almost reads, with the greatest of respect, like a draft respondent’s submission on appeal, or leave to appeal.
HIS HONOUR: I see. So, Mr Hatcher, is this leading to an application for a recusal?
MR HATCHER: It is, your Honour.
HIS HONOUR: Yes. All right. Do you want to proceed with that now?
MR HATCHER: Well, your Honour has heard what I had to say about the email ‑ ‑ ‑
HIS HONOUR: Right.
MR HATCHER: ‑ ‑ ‑ emanated from your Honour’s chamber last evening.
HIS HONOUR: Well, can you – can you just now ‑ ‑ ‑
MR HATCHER: I don’t ‑ ‑
HIS HONOUR: Can you please articulate it, just precisely, so I know what to deal with.
MR HATCHER: Your Honour conducted a lengthy hearing some two years ago now. In the course of that hearing, everything, on my instructions, went smoothly enough, subject to the difficulties of a non-represented litigant.
HIS HONOUR: Yes.
MR HATCHER: At the end of the hearing, on my instructions, your Honour was kind enough to note the assistance that had been given by counsel, and the courtesy that had been brought to the proceedings by counsel. . . .
. . . .
MR HATCHER: . . . Some 17 months later, the decision comes down, which has its difficulties from our perspective, and our client resolves to seek leave to appeal.
HIS HONOUR: Yes.
MR HATCHER: Our client then seeks a stay, pending that appeal, hardly surprising in a matter where one of the principal aspects of the decision the subject of the appeal, is that the decision-maker wasn’t the decision-maker, and accordingly no evidence was led from the decision-maker. That becomes the foundation for findings on adverse action that become the foundation, in turn, for claims for compensation and damages. So a stay does not seem like an extraordinary application, and a decision on the stay comes down, and I understand that your Honour may have a different view on your own decision, but it’s a decision that some would read as certainly not being even-handed or balanced. And, in those circumstances, when one looks at that, in conjunction with this email which accuses or infers misconduct on practitioners who had been earlier congratulated for their assistance and candour in the conduct of proceedings, one is entitled to form a view that the court may not be able to bring a dispassionate and balanced mind to this case.
HIS HONOUR: All right. So you’re relying on the reasons for judgment rejecting the stay; is that right?
MR HATCHER: And the email of last evening.
HIS HONOUR: Is there any reason why the recusal application wasn’t brought in relation to that judgment earlier than it has been today?
MR HATCHER: Yes, because the email didn’t appear until last evening.
HIS HONOUR: All right.
MR HATCHER: That on itself didn’t give rise to an application for recusal, but in conjunction with the email, it confirms views that arose from that.
HIS HONOUR: All right. So the reasonable apprehension of bias – perhaps you’re saying actual bias. Are you saying actual bias?
MR HATCHER: Reasonable apprehension.
HIS HONOUR: Reasonable apprehension. So what issue is it that you say . . . a fair-minded person would fairly apprehend I will not be able to bring an impartial mind to? The determination of what issue?
MR HATCHER: The determination of compensation, the determination of damage, and the determination of penalty.
PRINCIPLES
The principles that govern an application for recusal on the ground of reasonable apprehension of bias were recently restated by the High Court in Charisteas v Charisteas:[3]
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 principle 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 deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
As five judges of this Court said in Johnson v Johnson, while the fair‑minded lay observer “is not to be assumed to have a 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”.
[3] Charisteas v Charisteas [2021] HCA 29, at [11], [12] (footnotes omitted)
There are a number of matters to note. First, the required reasonable apprehension is not “that the case will be determined adversely to the interests of the complaining party”; it is that “the trial judge had formed a fixed view, to which it may be expected that he or she will adhere, regardless of the evidence or the submissions made by the complaining party”.[4] Second, there is the standard of risk of the judge forming such a fixed view, this being an “objective test of possibility, as distinct from probability”.[5]
[4] Barakat v Goritsas (No 2) [2012] NSWCA 36, at [40]
[5] Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, at [28]
Third, there are the attributes of the fair-minded lay person. The fair minded lay person is taken to be reasonable;[6] the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”;[7] the fair-minded lay observer “is neither complacent nor unduly sensitive or suspicious”;[8] and that the fair-minded lay observer “would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers”.[9] Further, in “judging the suggestion of a supervening apprehension of bias, it is reasonable to assume that the hypothetical lay observer would base the opinion on a fair assessment of the judge’s conduct in the context of the whole of the trial”.[10]
DETERMINATION
[6] Johnson v Johnson [2000] HCA 48, at [12]
[7] Johnson v Johnson [2000] HCA 48, at [12]. The quoted passage is from the judgment of McHugh JA in Vakauta v Kelly (1988) 13 NSWLR 502 at page 527
[8] Johnson v Johnson [2000] HCA 48, at [53]
[9] Johnson v Johnson [2000] HCA 48, at [53]
[10] Galea v Galea (1990) 19 NSWLR 263, at page 279
Identification of the matters giving rise to reasonable apprehension of bias
Senior counsel identified two matters he submitted might give rise to a reasonable apprehension of bias.
The stay judgment
The first are the reasons for judgment I published on 14 May 2024 (stay judgment) refusing LOA’s application for a stay; and here senior counsel made two submissions. The first is that the stay judgment “almost reads . . . like a draft respondent’s submission on appeal, or leave to appeal”; and the second is that “it is a decision that some would read as certainly not being even-handed or balanced”. Senior counsel did not identify what it is about the stay judgment that might reasonably lead a fair-minded lay observer to read or view the stay judgment in these ways. Senior counsel does not, for example, submit that the stay judgment failed to address the contentions or submissions LOA advanced in support of the stay application, or that the stay judgment addressed issues that were not relevant to LOA’s application for a stay, or that the stay judgment contained any incorrect or inappropriate statement.
I therefore am not satisfied that a fair-minded lay observer would reasonably apprehend that the stay judgment represents anything other than the determination on the merits of the issues that arose on LOA’s application for a stay. It follows that I am not satisfied that a fair‑minded lay observer might reasonably apprehend, by reason of the stay judgment, that I might not bring an impartial mind to the resolution of the question of damages and compensation, or of any other question that I may be required to determine.
Associate’s Email
The second matter on which senior counsel relied is the Associate’s Email. Senior counsel submitted that that email “accuses or infers misconduct on practitioners who had been earlier congratulated for their assistance and candour in the conduct of proceedings”. The basis of that submission appears to be, not the Associate’s Email asking for clarification of apparently conflicting information Ms Sutton conveyed in her email of 29 May 2024 about the reasons for which counsel would not be available to appear at the hearing of compensation and damages, but the request that I be informed of the matter in which counsel was briefed to appear, when the hearing of the matter in which he was briefed to appear was due to commence, and the length of the hearing in which he was briefed to appear.
What a fair-minded lay observer might reasonably apprehend from the Associate’s Email, particularly as it related to counsel, is to be assessed by reference to the fair-minded lay observer being aware of the following matters:
(a)the Court is entitled to make inquiries of legal practitioners about their conduct before the Court;
(b)in her email of 29 May 2024, Ms Sutton conveyed information about the reasons for which counsel was not available to appear at any hearing for damages and compensation that potentially conflicted with the reasons counsel gave at the directions hearing of 28 May 2024;
(c)the Associate’s Email was an inquiry about two matters to which it was directed, namely, the potentially conflicting information Ms Sutton in her email of 29 May 2024 conveyed in relation to the reasons for which counsel was not available to appear at the hearing on damages and compensation; and my not being informed at the directions hearing on 28 May 2024 that LOA had applied to the Federal Court for a stay;
(d)before the directions hearing of 30 May 2024 Mr Davis provided an affidavit which explains the reasons for the apparently conflicting information Ms Sutton had conveyed in her email of 29 May 2024; and
(e)at the directions hearing of 30 May 2024 I informed senior counsel that I accepted Ms Sutton’s explanation, as conveyed by Mr Davis, for the conflicting information, and what counsel had conveyed to Mr Davis.
On the basis of these matters, I am not satisfied that a fair-minded lay observer might reasonably apprehend that, by reason of my having instructed my Associate to send the Associate’s Email, I accused or imputed misconduct on practitioners acting for LOA and, for that reason, I might not bring an impartial mind to the resolution of the question of damages and compensation, or of any other question that I may be required to determine.
Logical connection
If I were to have accepted senior counsel’s submission that a fair‑minded lay observer might reasonably apprehend that the stay judgment almost reads like a draft respondent’s submission on appeal, or leave to appeal, or as not being even-handed or balanced, it would follow there would be a possibility that a fair‑minded lay observer might reasonably apprehend I would not decide outstanding questions of compensation or damages on their merits. I have concluded, however, that a fair‑minded lay observer would not reasonably apprehend that the stay judgment was anything other than the determination on their merits of the issues that arose on LOA’s application for a stay.
The Associate’s Email requires different consideration. If, contrary to what I have found, a fair‑minded lay observer might reasonably apprehend that by my having authorised the sending of the Associate’s Email I had accused or inferred misconduct in counsel or in any of LOA’s legal representatives, whether that might cause a fair-minded lay observer to reasonably apprehend I might not decide all remaining issues impartially will depend on how a fair‑minded lay observer might reasonably apprehend my having accepted the matters to which Mr Davis deposed in his affidavit; and that, in turn, would depend on how a fair-minded lay person might reasonably apprehend the manner in which I have conducted the long history of this litigation. I am not satisfied that a fair minded lay-person, having reasonably apprehended that, by authorising the sending of the Associate’s Email I might have accused or inferred misconduct in counsel or in any of LOA’s legal representatives, might nevertheless reasonably apprehend that, having accepted the explanation Mr Davis gave, I might retain a lingering belief or suspicion that counsel and any other legal representative of LOA had acted inappropriately and, for that reason, I might not bring to bear an impartial mind to the determination of all outstanding issues.
Cumulative effect
Senior counsel submitted that the stay judgment “didn’t give rise to an application for recusal, but in conjunction with the email, it confirms views that arose from that”. It is not apparent to me what views in the Associate’s Email it is said the stay judgment confirmed, or what views in the stay judgment the Associate’s Email is said to have confirmed.
I have found that I am not satisfied that a fair-minded lay observer might reasonably apprehend that, by reason of the stay judgment and the Associate’s Email, considered separately, I might not bring an impartial mind to the resolution of outstanding questions I am required to determine; and I am unable to find that a fair-minded lay observer might reasonably apprehend that, by reason of the stay judgment and the Associate’s Email, considered cumulatively, I might not bring an impartial mind to the resolution of the question of damages and compensation, or of any other question that I may be required to determine.
DISPOSITION AND FURTHER CONDUCT
I propose to dismiss the application for recusal.
I also propose to vacate the current listing of the hearing of oral submissions on damages and, instead, will list that hearing at 3.00 pm on each of 27 and 28 June 2024.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 5 June 2024
1
6
0