FEDERAL COURT OF AUSTRALIA
Mbuzi v Wordsworth (Recusal Application) [2024] FCA 132
File number(s): QUD 523 of 2023 Judgment of: MEAGHER J Date of judgment: 26 February 2024 Catchwords: COURTS AND JUDGES – Bias – Reasonable apprehension of bias – Whether fair-minded lay observer might reasonably apprehend that judge might not bring an impartial mind to the hearing of the proceeding – Whether previous employment with a law firm might result in a reasonable apprehension of bias – Whether conduct during a case management hearing might result in a reasonable apprehension of bias – Whether approach in dealing with recusal application might result in a reasonable apprehension of bias – Knowledge and characteristics attributed to fair-minded lay observer – Whether logical connection is established – Application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) ss37M, 37N. Cases cited: Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd & Qantas Airlines Ltd (1996) 65 FCR 215
Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411
Bainton v Rajski (1992) 29 NSWLR 539
Barton v Walker (1979) 2 NSWLR 740
Burgess v Minister for Immigration & Border Protection (2018) 259 FCR 197
Ebner v Official Trustee in Bankruptcy [2000] HCA 63
Johnson v Johnson (2000) 201 CLR 488
Re Polites; Ex parte The Hoyts Corporation Pty Ltd (1991) 173 CLR 78
S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358
Wentworth v Graham (2003) NSWCA 240
Division: Fair Work Division Registry: Queensland National Practice Area: Employment and Industrial Relations Number of paragraphs: 35 Date of hearing: 31 January 2024 Counsel for the Applicant: The applicant appeared in-person Counsel for the Respondents: Mr S A Mackie Solicitor for the Respondents: Corrs Chambers Westgarth ORDERS
QUD 523 of 2023 BETWEEN: JOSIYAS MBUZI
Applicant
AND: DANIEL WORDSWORTH
First Respondent
NATHAN CALLAGHAN
Second Respondent
WORLD VISION AUSTRALIA
Third Respondent
ORDER MADE BY:
MEAGHER J
DATE OF ORDER:
26 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The recusal application be dismissed.
2.Costs of and incidental to the recusal application be costs in the proceedings.
3.The matter be set down for a case management hearing at 10:00 am AEST on 25 March 2024.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MEAGHER J
INTRODUCTION
By an affidavit dated 29 January 2024 (First Affidavit) and oral application during a first case management hearing held on 31 January 2024 (CMH), the applicant sought that I disqualify myself from hearing the matter on the basis of a potential conflict of interest arising from my previous employment. At the CMH, the applicant referred to examples of cases he maintained involved circumstances analogous to this case, and in which he succeeded in recusal applications. I therefore ordered that he provide details of those authorities…
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- AGLC
- Mbuzi v Wordsworth (Recusal Application) [2024] FCA 132
- Case
- [2024] FCA 132
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the judge's past employment, conduct during a case management hearing, and approach to the recusal application could lead to a reasonable apprehension of bias. The court considered the established principles of bias, including the concept of a fair-minded lay observer and the necessity of a logical connection between the apprehension of bias and the facts of the case. The applicant argued that the judge's previous employment, even though unrelated to Mbuzi, could create a reasonable apprehension of bias. The court reviewed the circumstances of the judge's past employment and found no logical connection between it and the current proceedings, noting that there was no evidence of any dealings with the applicant during the employment period. The court also dismissed the concerns about conduct during the case management hearing and the approach to the recusal application, concluding that a fair-minded lay observer would not reasonably apprehend bias based on these factors.
The court found that the fair-minded lay observer would not reasonably apprehend bias due to the judge's previous employment, conduct, or approach to the recusal application. There was no logical connection between the factors cited by the applicant and the apprehension of bias. Consequently, the application for recusal was dismissed. The court ordered that the costs of and incidental to the recusal application be costs in the proceedings and scheduled a further case management hearing to progress the matter.
The orders made by the court were that the recusal application be dismissed, that the costs of and incidental to the recusal application be costs in the proceedings, and that a further case management hearing be held on 25 March 2024 at 10:00 am AEST. These orders reflect the court's determination that no reasonable apprehension of bias existed and the need to progress the matter.
Orders
Orders of the court
1. The recusal application be dismissed.
2. Costs of and incidental to the recusal application be costs in the proceedings.
3. The matter be set down for a case management hearing at 10:00 am AEST on 25 March 2024.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The fair-minded lay observer refers to “a representative of the Australian public, the continuing confidence of which in the rule of law is secured, in part, by acceptance that judicial decisions are made by impartial and independent judges”: QYFM at [273] (Jagot J).CONSIDERATION In his Second Affidavit, the applicant submitted that there were three matters which give rise to a reasonable apprehension of bias. They are my previous employment, my conduct during the CMH and my approach in dealing with this recusal application. I will address each in turn.Previous Employment In his affidavits and oral submissions during the CMH, the applicant raised concerns regarding a potential conflict of interest arising out of my previous employment with a law firm. The applicant submitted that the relevant law firm had represented parties against which he had a lengthy dispute in both the Supreme Court of Queensland and the District Court of Queensland. The applicant alleged that the relevant law firm held a low opinion of him and displayed bigotry towards him. The applicant deposed that he believed that a lay person would conclude that a reasonable apprehension of bias exists in circumstances where a Judge was formerly employed at a law firm which represented parties against him in previous proceedings. To that end, the applicant deposed that he believed that if I continued to preside in these proceedings, I would be motivated to ‘save face, and exact revenge for the losses’ suffered by the law firm in question. Notwithstanding any alleged poor treatment of the applicant by the law firm, it is unclear how my employment as Chief Operating Officer (COO) of the law firm would result in a reasonable apprehension of bias in this instance. I have no knowledge of, nor recall any involvement or dealings with the applicant during my employment with the law firm. Indeed, until this matter, I had never heard of the applicant. In any case, there is much case law to 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 circumstances of each case must be considered by applying the test of apprehended bias. In Re Polites; Ex parte The Hoyts Corporation Pty Ltd (1991) 173 CLR 78 at 87 – 88, the High Court (per Brennan, Gaudron, McHugh JJ) stated: A prior relationship of legal adviser and client does not generally disqualify the former adviser, on becoming a member of a tribunal (or of a court, for that matter), from sitting in proceedings before that tribunal (or court) to which the former client is a party. Of course, if the correctness or appropriateness of advise given to the client is a live issue for determination by the tribunal (or court), the erstwhile legal adviser should not sit. Similarly, in S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358, the New South Wales Court of Appeal had to consider whether the trial Judge ought to have recused himself on the basis that his Honour had previously appeared as counsel for Caltex and other major oil company interests. It was held by majority, per Priestly and Clarke JJA, Kirby P (as his Honour then was) dissenting, that no reasonable apprehension of bias existed. At 380 - 381, Priestly and Clarke JJA spoke to the need for the fair-minded lay observer to be moderately informed of the circumstances of the case: For the apprehension of the parties or the public to be reasonable, we think it must arise upon an understanding of the actual circumstances in which the claim of possible bias is made. In the present case, a reasonable person knowing nothing of the way in which barristers do their work might, on first thought, in fact apprehend possible bias. We do not think such a judgment would be reasonable, because founded on insufficient knowledge for arriving at such a judgment. The reasonable observer would, in our opinion, need to inform himself of the circumstances in which the judge had done legal work for Caltex, before being able to form a reasonable judgment on the question of possible bias. Once he understood, in general outline, the way in which barristers carry out the work they do, upon the instructions of solicitors, for clients, and upon understanding, again in a general way, the difference between a large business organisation and the people who work for it, it seems to us that it would no longer be reasonable to apprehend possible bias on the judge's part.