FEDERAL COURT OF AUSTRALIA
John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34
Citation: John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34 Appeal from: Comcare v John Holland Rail Pty Ltd (No 3) [2011] FCA 164 Parties: JOHN HOLLAND RAIL PTY LTD (ABN 61 009 252 653) and JOHN HOLLAND PTY LTD (ACN 044 282 268) v COMCARE File number: VID 168 of 2011 Judges: NORTH, KENNY AND DODDS-STREETON JJ Date of judgment: 11 March 2011 Catchwords: PRACTICE AND PROCEDURE – courts and judges – apprehended bias – application for leave to appeal against order by primary judge, refusing to disqualify himself – whether a party’s unilateral communication with a judge’s associate could found or contribute to a reasonable apprehension of bias, where no direct evidence that it involved any discussion of merits or substance – no impropriety in a party’s unilateral communication with chambers in relation to procedural, administrative or practical matters – unilateral communication does not per se constitute a ground sufficient to warrant disqualification of judge – primary judge understood and properly applied the correct test – application for leave to appeal refused. Legislation: Federal Court Rules (Cth), O 52, r 12(1) Cases cited: British American Tobacco Australia Services Ltd v Laurie (2011) 273 ALR 429; [2011] HCA 2
Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111
Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 540
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48
Kanda v Government of Malaya [1962] AC 322
R v Fisher (2009) 22 VR 343
Reg. v Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] VR 122
Re JRL; Ex parte CJL (1986) 161 CLR 342Date of hearing: 4 March 2011 Date of last submissions: 4 March 2011 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 35 Counsel for the Applicants: Mr M D Wyles SC with Mr T J F McEvoy Solicitor for the Applicants: Herbert Geer Counsel for the Respondent: Mr P Rozen Solicitor for the Respondent: Thomsons Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 168 of 2011
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: JOHN HOLLAND RAIL PTY LTD (ABN 61 009 252 653)
First ApplicantJOHN HOLLAND PTY LTD (ACN 044 282 268)
Second ApplicantAND: COMCARE
Respondent
JUDGES:
NORTH, KENNY AND DODDS-STREETON JJ
DATE OF ORDER:
11 MARCH 2011
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application for leave to appeal made by notice of motion dated 2 March 2011 is refused with costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 168 of 2011
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: JOHN HOLLAND RAIL PTY LTD…
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Details
- Case
- [2011] FCAFC 34
- Decision Date
CaseChat Overview and Summary
In the case of John Holland Rail Pty Ltd v Comcare, the applicant, John Holland Rail Pty Ltd, sought leave to appeal against an order made by a primary judge who had refused to disqualify himself from a matter due to an alleged apprehension of bias. The primary judge had determined that a unilateral communication from a party to the judge’s associate did not warrant his disqualification. The Full Court was tasked with determining whether this reasoning was sound and if the primary judge correctly applied the test for apprehended bias.
The primary legal issue was whether a party's unilateral communication with a judge’s associate could contribute to a reasonable apprehension of bias when there was no direct evidence that the communication involved any discussion of the merits or substance of the case. Additionally, the court needed to ascertain whether the primary judge had correctly understood and applied the applicable legal test for apprehended bias. The Full Court had to evaluate the reasoning of the primary judge and determine if there was any error that warranted granting leave to appeal.
The Full Court examined the reasons provided by the primary judge and concluded that the primary judge had fully understood and correctly applied the test for apprehended bias. The court noted that while the precise language used in applying the test can vary, what was crucial was the application of the test itself. The court found no semantic deficiencies that would undermine the primary judge’s decision. Furthermore, the court held that a party's unilateral communication with chambers regarding procedural, administrative, or practical matters does not per se constitute a ground sufficient to warrant the disqualification of a judge. The Full Court found that the primary judge’s reasons were sound, and there was no sufficient doubt about his application of the test.
Accordingly, the Full Court dismissed the application for leave to appeal, holding that no sufficient doubt attended the primary judge’s reasons for refusing to disqualify himself. The court ordered that the application for leave to appeal made by notice of motion dated 2 March 2011 be refused with costs.
The primary legal issue was whether a party's unilateral communication with a judge’s associate could contribute to a reasonable apprehension of bias when there was no direct evidence that the communication involved any discussion of the merits or substance of the case. Additionally, the court needed to ascertain whether the primary judge had correctly understood and applied the applicable legal test for apprehended bias. The Full Court had to evaluate the reasoning of the primary judge and determine if there was any error that warranted granting leave to appeal.
The Full Court examined the reasons provided by the primary judge and concluded that the primary judge had fully understood and correctly applied the test for apprehended bias. The court noted that while the precise language used in applying the test can vary, what was crucial was the application of the test itself. The court found no semantic deficiencies that would undermine the primary judge’s decision. Furthermore, the court held that a party's unilateral communication with chambers regarding procedural, administrative, or practical matters does not per se constitute a ground sufficient to warrant the disqualification of a judge. The Full Court found that the primary judge’s reasons were sound, and there was no sufficient doubt about his application of the test.
Accordingly, the Full Court dismissed the application for leave to appeal, holding that no sufficient doubt attended the primary judge’s reasons for refusing to disqualify himself. The court ordered that the application for leave to appeal made by notice of motion dated 2 March 2011 be refused with costs.
Orders
Orders of the court
1. The application for leave to appeal made by notice of motion dated 2 March 2011 is refused with costs.
Note:
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
It is clear, however, from the reasons, read as a whole, that his Honour fully understood and properly applied the correct test. Moreover, as the Full Court has recently observed in Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 at [27] to [28]:The applicant challenged his Honour’s formulation of the test for apprehended bias. In this context we note that, although the test for apprehended bias is ordinarily the same wherever it arises, the precise language used in applying the test has frequently varied depending on the context in which it falls to be applied: compare Laws v ABT [Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70] at 99-100; Re JRL at 352; Ebner at 344 [6]; and Re Polites; Ex parte the Hoyts Corporation Pty Ltd (1991) 173 CLR 78 (‘Re Polites’) at 85-7 and 90.It is true that the use of the word “must” in the statement of the test in his Honour’s reasons for judgment indicates a degree of certainty that is higher than the threshold identified in Ebner. In Ebner at 344 [6], the use of the word “might” in the first limb of the test (as well as the second) connotes the lesser possibility than the word “must”. It is, however, important to focus on his Honour’s application of the test, rather than overemphasize possible semantic deficiencies: compare McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504 at 526 [111]-[114] per Basten JA. Further… the “double might” test in Ebner is not inconsistent with the prejudgment “incapable of alteration test” in Jia Legeng. That is, the reasonable apprehension that “a fair-minded lay observer might” have is that the mind of the judge might be “incapable of alteration”… CONCLUSION In our view, no sufficient doubt attends his Honour’s reasons for refusing to disqualify himself. Accordingly, we would refuse leave to appeal. Each party submitted that costs should follow the event and we shall so order.
Ratio Decidendi
Legal Principle Established
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