Maleknia v Minister for Industry and Science

[2015] FCCA 2997

FEDERAL CIRCUIT COURT OF AUSTRALIA

MALEKNIA v MINISTER FOR INDUSTRY AND SCIENCE & ORS [2015] FCCA 2997

Catchwords:
PRACTICE AND PROCEDURE – Application for recusal – whether judge’s being a lecturer of the university which is a party to the proceedings might lead fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question – doubtful case of apprehension of bias – recusal order made.

Legislation:

Federal Circuit Court Act 1999 (Cth), s.17A

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

Applicant: SIMIN MALEKNIA

First Respondent: MINISTER FOR INDUSTRY AND SCIENCE

Second Respondent: UNIVERSITY OF SYDNEY (ABN 15 211 513 464)

Third Respondent: MINISTER FOR EMPLOYMENT

Other: UNIVERSITY OF NEW SOUTH WALES (ABN 57 195 873 179)

File Number: SYG 1331 of 2015

Judgment of: Judge Manousaridis

Hearing date: 4 November 2015

Delivered at: Sydney

Delivered on: 4 November 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent: No appearance behalf of or by the first respondent

Solicitors for the Second Respondent: Ms J Wright of the University of Sydney

Solicitors for the Third Respondent: No appearance behalf of or by the third respondent

Other: Mr P Sheehy of the University of New South Wales

ORDERS

1. Judge Manousaridis recuses himself from further involvement in these proceedings.

2. The matter be referred to the Registry for reallocation to a different Judge of this Court.

3. The objections to the subpoena and notice to produce be adjourned to a date to be fixed by the Judge to whom this matter is referred.

4. The interlocutory hearing of the applications made by the second and third respondents pursuant to s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) which is set down at 10.15 am on 9 November 2015 is vacated.

5. The hearing of the applications made by the second and third respondent pursuant to s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) be fixed for hearing on a date to be fixed by the Judge to whom the matter is referred.

6. The costs of the proceedings generally including costs of the application generally be reserved for consideration by the Judge to whom the matter is referred.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

SYG 1331 of 2015

SIMIN MALEKNIA

Applicant

And

MINISTER FOR INDUSTRY AND SCIENCE

First Respondent

UNIVERSITY OF SYDNEY (ABN 15 211 513 464)

Second Respondent

MINISTER FOR EMPLOYMENT

Third Respondent

UNIVERSITY OF NEW SOUTH WALES (ABN 57 195 873 179)
Other

REASONS FOR JUDGMENT

(revised from transcript)

1. This matter came before me this morning pursuant to a liberty to apply.  What prompted the matter being referred to me was a number of subpoenas that the applicant, Ms Maleknia, issued to third parties and a notice to produce which she issued to the second respondent, the University of Sydney.  Objections were taken by the University and also by some of the parties to whom the subpoenas were issued. 

2. Some 15 minutes into the hearing, the applicant, Ms Maleknia, applied that I recuse myself from the matter.  To understand the grounds on which that application is made, it is necessary to set out some background.  The relevant background begins with an email which was sent by the University of Sydney to Ms Maleknia on June 19 2015.  That email was as follows:

   It has recently come to my attention that Judge Manousaridis was employed by the University of Sydney on a casual basis in 2012.  In order to minimise any potential issues associated with Judge Manousaridis’ association with the university, can you please advise whether you have any objection to Judge Manousaridis continuing to adjudicate this matter?  If you do object, the university will support any application for the matter to be allocated to a different judge.

3. Ms Maleknia responded by email which was addressed to the Court’s Registry, as was the email from the University of Sydney, which I failed to say, and copied to the University of Sydney.  In that email, Ms Maleknia said:

   I have no objection to Judge Manousaridis continuing to adjudicate this matter.

4. That was followed with a further email from the University of Sydney directed to the Court and also to Ms Maleknia in which it was stated:

   On the basis that Dr Maleknia does not object, the university leaves this issue in the hands of Judge Manousaridis

5. I do recall that these emails were shown to me in my chambers.  My recollection is that I had interpreted those emails as indicating that Dr Maleknia would not or did not object to my hearing this matter. 

6. The question of my affiliation with the University of Sydney was raised at a directions hearing which took place on 26 August 2015, and it was raised by me.  According to the transcript of that hearing, the following occurred:

   HIS HONOUR:  Just one thing - I think there was none in correspondence – you are aware that I have lectured part-time at Sydney University?

   MS MALEKNIA:   I – I was told you – you were – I didn’t know at what capacity, your Honour, so ‑ ‑ ‑ 

   HIS HONOUR:   I’m a lecturer.

   MS MALEKNIA:   Okay.

   HIS HONOUR:   I lecture for nine weeks a year ‑ ‑ ‑ 

   MS MALEKNIA:   Okay.  Okay.  You – currently.

   HIS HONOUR:   ‑ ‑ ‑ on a non-remunerative basis.  I don’t get paid for it.  All right.  But I don’t think – I mean, it does not give any rise to a problem but I disclose it to you just in case you wish to say anything about it.  And I understand you don’t wish to say anything against my sitting because I have lectured part-time at Sydney University.  Is that right?

   MS MALEKNIA:   Yes, your Honour.  They told me that you were ..... in the past so ‑ ‑ ‑ 

   HIS HONOUR:   Well, I lecture – I’ve lectured this year in April and May and it’s my current intention that I lecture for nine weeks in April and May of next year.

   MS MALEKNIA:   Thanks for disclosing that, your Honour.  If I have any issues I will raise that ‑ ‑ ‑ 

   HIS HONOUR:   Well, you need to do it sooner rather than later ‑ ‑ ‑ 

   MS MALEKNIA:   Okay.  But ‑ ‑ ‑ 

   HIS HONOUR:   ‑ ‑ ‑ if you want to.  And you have to apply to me.

   MS MALEKNIA:   Yes, yes, your Honour.  Yes.  Okay.

7. Then there was some discussion between me and Ms Wright, who appeared for the University of Sydney setting out the background which prompted the email communication to Ms Maleknia in the first place.  Ms Wright said that she had learnt through another colleague that I had been an employee.  And I said yes when I was at the bar. 

8. No application after that directions hearing was made by Ms Maleknia to have myself recused until the hearing today.  I made some inquiries of Ms Maleknia as to why that did not occur.  It is not necessary to set out those reasons, because those reasons are not relevant to the question I need to determine. 

9. Before I turn to the grounds on which Ms Maleknia asked that I recuse myself, it would be appropriate to set out some basic principles, although I don’t propose to say much about those principles.  A judge is disqualified from hearing a case if there is the appearance of bias.  And there will be an appearance of bias if:

   A fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.

10. That quotation is from the decision of Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at page 492, paragraph 11. The application of this principle, which has been referred to as the “apprehension of bias principle” requires two steps.  The first is the “identification that what is said might lead a judge or juror to decide a case other than on its legal and factual merits”. The second is the “articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”.[1]

    [1] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 345 [8]

11. One class of conduct that might lead a judge to decide a case other than on its legal and factual merits is an affiliation between the judge and one of the litigants before the judge. Now, Ms Maleknia has identified what she claims might lead a fair-minded lay observer to reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question I am required to decide and that is what has been referred to as my affiliation with the University of Sydney.

12. As the quote from the transcript of the directions hearing of 26 August indicates, that affiliation is one of a lecturer for a limited number of weeks of the year on a non-remunerative basis.  The question is whether that affiliation is one that could lead a fair-minded lay observer to reasonably apprehend bias.  What is the logical connection between the matters?  That was not articulated by Ms Maleknia.  That is understandable.  She’s not a lawyer.  It is for me in any event to determine whether such logical connection can be drawn. 

13. In my opinion, a fair-minded lay observer might reasonably apprehend that because of that affiliation I might not be able to bring a fair and impartial attitude to mind.  The nature of the affiliation, although on its face is minimal, could lead a fair-minded person to think that there is more than a relationship of engagement to provide lectures, for why would somebody give lectures without pay unless there was perhaps some commitment to the institution itself?

14. I'm far from satisfied that this is a strong case of apprehension of bias.  In my opinion, however, it is a case that raises a case of real doubt in that regard.  I have regard to the following passage from the reasons for judgment of the plurality in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 where it was said:[2]

    This is not to say that it is improper 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 were 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.  That would be intolerable.

    [2] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 348 [20]

15. I might say that my initial reaction to the application for recusal, particularly given the fact that it was raised 20 minutes into a hearing where Ms Maleknia perceived that I have decided an issue against her, led me to think whether an application for recusal would be one she would make to other judges whom she might perceive will be making decisions against her.  I did not take that consideration too far because it is unlikely that the judge to whom this matter will be reallocated would have any affiliation with the University of Sydney. 

16. For these reasons, I think it would be prudent for me to decide not to sit because I think there is a real doubt that a fair-minded lay observer might reasonably apprehend that I will not bring an impartial and unprejudiced mind to the resolution of the questions before me because I have lectured and intend to lecture part time at the University of Sydney.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  6 November 2015