Mbuzi v Wordsworth

Case [2024] FCA 977

FEDERAL COURT OF AUSTRALIA

Mbuzi v Wordsworth [2024] FCA 977

Appeal from: Mbuzi v Wordsworth (Recusal Application) [2024] FCA 132
File number: QUD 135 of 2024
Judgment of: MOSHINSKY J
Date of judgment: 27 August 2024
Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal – where the applicant requested the primary judge to recuse herself on the basis of her previous employment at a firm that had acted for a party against the applicant – where the primary judge dismissed the recusal application – whether decision of the primary judge attended with sufficient doubt to warrant its reconsideration on appeal – held: application for leave to appeal dismissed
Legislation:

Fair Work Act 2009 (Cth), s 570

Federal Court of Australia Act 1976 (Cth), s 37AO

Federal Court Rules 2011, r 39.05
Cases cited:

Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337

Forte Sydney Carlingford Development Pty Limited v Forte Sydney Carlingford Pty Limited [2024] FCAFC 9

Johnson v Johnson [2000] HCA 48; 201 CLR 488

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; 409 ALR 65
Division: Fair Work
Registry: Queensland
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 40
Date of hearing: 1 August 2024
Counsel for the Applicant: The applicant appeared in person
Counsel for the Respondents: Mr J McLean
Solicitor for the Respondents: Corrs Chambers Westgarth

ORDERS

QUD 135 of 2024
BETWEEN:

JOSIYAS MBUZI

Applicant
AND:

DANIEL WORDSWORTH

First Respondent

NATHAN CALLAGHAN

Second Respondent

WORLD VISION AUSTRALIA (ABN 28 004 778 081)

Third Respondent

ORDER MADE BY:

MOSHINSKY J

DATE OF ORDER:

27 AUGUST 2024

THE COURT ORDERS THAT:

1.The applicant’s application for leave to appeal dated 8 March 2024 be dismissed.

2.There be no order as to costs in relation to that application.

3.The respondents’ interlocutory application dated 21 June 2024 be dismissed (with no adjudication on the merits).

4.There be no order as to costs in relation to that application.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

  1. The applicant, Josiyas Mbuzi, has applied for leave to appeal from a decision of a Judge of this Court (the primary judge), dismissing an application that she recuse herself: Mbuzi v Wordsworth (Recusal Application) [2024] FCA 132.

  2. In summary, the principal basis upon which Mr Mbuzi contended that the primary judge should recuse herself was that her Honour was previously employed by a firm that acted for a party against Mr Mbuzi.  Mr Mbuzi also relies on her Honour’s conduct at a case management hearing on 31 January 2024.

  3. In support of his application for leave to appeal (which is dated 8 March 2024), Mr Mbuzi relies on an affidavit of himself dated 8 March 2024.  The affidavit annexes (among other things) a draft notice of appeal.

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Details
AGLC
Mbuzi v Wordsworth [2024] FCA 977
Case
[2024] FCA 977
Decision Date

CaseChat Overview and Summary

In Mbuzi v Wordsworth, the applicant, Mr Mbuzi, sought leave to appeal against the decision of the primary judge, who dismissed his application for the primary judge to recuse herself from a proceeding brought under the Fair Work Act 2009 (Cth). The primary judge had previously been employed by McCullough Robertson, a firm that had acted for parties opposed to Mr Mbuzi in a previous proceeding. Mr Mbuzi argued that the primary judge should recuse herself due to this prior relationship, as well as other grounds related to the conduct of the primary judge during the case management hearing. The primary judge dismissed Mr Mbuzi's application, and he now seeks leave to appeal this decision.

The primary legal issue before the court was whether the decision of the primary judge in dismissing Mr Mbuzi's application for recusal was attended with sufficient doubt to warrant reconsideration on appeal. The court considered the principles of apprehended bias, as outlined in relevant High Court authorities, and applied them to the facts of the case. The court found that there was no logical connection between the primary judge's previous employment and the risk that she might decide the matter other than on its legal and factual merits. Additionally, the court found that the primary judge's conduct during the case management hearing did not raise a reasonable apprehension of bias.

The court concluded that the decision of the primary judge was not attended with sufficient doubt to warrant reconsideration on appeal. The court found that Mr Mbuzi's arguments, both individually and cumulatively, did not establish a reasonable apprehension of bias. The court also noted that Mr Mbuzi did not raise a particular "lobbying communication" sent by the respondents' solicitors to the primary judge's chambers as a further ground for recusal before the primary judge. Therefore, the court dismissed Mr Mbuzi's application for leave to appeal.

The court further ordered that the respondents' interlocutory application, which sought summary dismissal of Mr Mbuzi's application for leave to appeal and orders pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth), be dismissed with no adjudication on the merits. The court made no order as to costs in relation to either application.

Orders

Orders of the court

1. The applicant’s application for leave to appeal dated 8 March 2024 be dismissed.

2. There be no order as to costs in relation to that application.

3. The respondents’ interlocutory application dated 21 June 2024 be dismissed (with no adjudication on the merits).

4. There be no order as to costs in relation to that application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The respondents filed an interlocutory application dated 21 June 2024 seeking summary dismissal of Mr Mbuzi’s application for leave to appeal and orders pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth) (which relates to vexatious proceedings orders). In advance of the hearing of Mr Mbuzi’s application for leave to appeal, I ordered that paragraph 2 of the respondents’ interlocutory application (being the paragraph in which summary dismissal was sought) be listed for hearing at the same time as Mr Mbuzi’s application. At the hearing, the respondents stated that they did not press paragraph 2 of their interlocutory application. Further, they said that they did not press the balance of their interlocutory application. Accordingly, I will make an order that the respondents’ interlocutory application be dismissed (with no adjudication on the merits).Background The proceeding before the primary judge in which the recusal application was made was proceeding No. QUD 523 of 2023 (the Original Proceeding). That proceeding was commenced on 27 November 2023. The applicant is Mr Mbuzi. The respondents are Mr Wordsworth, Mr Callaghan and World Vision Australia. The proceeding is brought under the Fair Work Act 2009 (Cth) and relates to Mr Mbuzi’s alleged dismissal from employment with World Vision Australia. At all relevant times, Mr Mbuzi acted for himself (in other words, he did not have legal representation) in relation to the Original Proceeding. On 29 January 2024, in anticipation of the first case management hearing (which was due to take place on 31 January 2024, before the primary judge), Mr Mbuzi filed an affidavit in which he referred to a previous proceeding in which the firm McCullough Robertson acted for the party that was opposed to Mr Mbuzi. Although not stated in the affidavit, it seems that the reason for filing the affidavit was that the primary judge had previously been employed by McCullough Robertson. Mr Mbuzi’s affidavit stated in part:1.I am the applicant in this matter who is without legal representation. Further, that law is not my field of study.2.Annexure marked “J” is a copy of a letter to me from McCullough Robertson Lawyers.3.That the legal firm mentioned in point 2 above represented debt collectors in Brisbane called Collection House whom I had sued jointly with St. George Bank which had sent them to be calling over alleged arrears of about $600.00 (six hundred dollars).4.That in the dispute mentioned in point 3 above, St. George Bank was represented by Gadens Lawyers.5.That although McCullough Robertson Lawyers engaged in bigotry towards me, and presented themselves to have superior legal knowledge than me, Judge Robyn made comments to the effect as follows: “I see there are two lawyers representing the bank, and then two other lawyers representing Collection House, yet I can’t make sense of what you are saying. Frankly, only Mr Mbuzi, who says he has not studied law, makes sense to me”.6.That both parties ended up paying me a combined amount of $62,000.00 (sixty two thousand dollars).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It seems that the respondents did not seek leave to file any evidence or submissions in response to Mr Mbuzi’s affidavit of 6 February 2024; nor did they seek to have the matter re-listed for further hearing.The reasons for judgment of the primary judge On 26 February 2024, the primary judge gave judgment on the recusal application. As indicated above, her Honour decided to dismiss the application. The primary judge set out the principles relating to apprehended bias at [4]-[11] of her reasons for judgment, referring to Johnson v Johnson [2000] HCA 48; 201 CLR 488; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; 409 ALR 65, and other cases. The primary judge considered Mr Mbuzi’s first ground (relating to the primary judge’s previous employment) at [13]-[21]. This section included a discussion of cases that support the proposition that apprehended bias will not necessarily be made out even if a judge has previously appeared either for or against a party to the proceedings. The primary judge concluded this section of her reasons:20In this case, no prior relationship of legal advisor existed. During my employment with the law firm, I did not act for any party engaged in a dispute with the applicant. The applicant’s claim that I would have any adverse motivation based on my previous role with the law firm has no merit.21I do not accept that a fair-minded lay observer, knowing that I was not involved in any litigation against the applicant, and having some knowledge of the role of a COO [Chief Operating Officer] in a large law firm, may perceive my previous employment with that law firm as giving rise to a reasonable apprehension of bias. There exists no logical connection between my previous employment and the risk that I might decide the matter other than on its legal and factual merits. The primary judge dealt with Mr Mbuzi’s second ground at [22]-[27] of her reasons. As noted above, this ground concerned the primary judge receiving draft orders from Mr Mackie at the outset of the hearing, before Mr Mbuzi (as applicant) had spoken. The primary judge reasoned:25As the transcript discloses, no favouritism was shown to counsel for the respondents. Rather I permitted him to provide me with the orders he was seeking in the appropriate form, on the basis that what had previously been provided was in the form of part of an email sent to the Court. I also instructed counsel to provide a copy of the respondents’ proposed draft orders to the applicant.26Immediately thereafter, the applicant sought that I recuse myself. Accordingly, I did not consider the draft orders proposed by the parties or indeed make any orders regarding case management steps.27The conduct of the CMH could not raise a reasonable apprehension of bias to the fair-minded lay observer. No logical connection could be drawn between my conduct during it and the risk that I might decide the matter other than on its legal and factual merits.

Ratio Decidendi

Legal Principle Established

The applicable principles regarding apprehended bias are set out in the judgments of the High Court of Australia referred to by the primary judge: see, in particular, Johnson v Johnson [2000] HCA 48; 201 CLR 488 at [11] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ.Consideration I approach the question whether leave to appeal should be granted having regard to the practical importance of the primary judge’s decision in the context of the litigation at first instance. In my view, subject to one matter (discussed below), the decision of the primary judge is not attended with sufficient doubt to warrant its reconsideration on appeal. In relation to Mr Mbuzi’s first ground before the primary judge, there is no suggestion that the primary judge was involved in the matter in which McCullough Robertson acted for parties against Mr Mbuzi. In these circumstances, there is no logical connection between the facts and matters relied on by Mr Mbuzi (see [10] and [16] above) and the apprehended deviation from deciding the Original Proceeding on its merits. In relation to Mr Mbuzi’s second ground before the primary judge, the mere fact that the primary judge received draft orders from Mr Mackie at the outset of the hearing, before Mr Mbuzi (the applicant) had spoken, is insufficient to suggest that the primary judge was siding with one side. Even if (as submitted by Mr Mbuzi) the draft orders handed up by Mr Mackie were different from those previously emailed to the primary judge’s chambers, the fact that the primary judge received the draft orders from Mr Mackie at the outset of the hearing does not suggest any lack of impartiality on the part of the primary judge. In relation to Mr Mbuzi’s third ground before the primary judge, the order that Mr Mbuzi provide a list of authorities following the case management hearing on 31 January 2024 was prompted by Mr Mbuzi’s reference to his experience in another case where a Supreme Court Judge had disqualified herself on the basis of previous work for a party opposed to Mr Mbuzi. There is no basis to suggest that the order was onerous or that it indicated that the primary judge lacked impartiality. Even if the three grounds are considered cumulatively, the result is the same. At the hearing before me, and in his outline of submissions, Mr Mbuzi referred to a “lobbying communication” sent by the respondents’ solicitors to the chambers of the primary judge. According to Mr Mbuzi, the communication sought to have another matter (proceeding No. QUD 24 of 2024) also docketed to the primary judge. A copy of the communication is not in evidence before me. In an email to my chambers following the hearing, Mr Mbuzi stated that the communication was sent on 6 February 2024. It does not appear that Mr Mbuzi raised this matter with the primary judge (on or after 6 February 2024) as a further ground upon which she should recuse herself. Accordingly, it does not provide a basis to contend that the decision of the primary judge is attended with sufficient doubt to warrant its reconsideration on appeal.