Mbuzi v World Vision Australia

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FEDERAL COURT OF AUSTRALIA

Mbuzi v World Vision Australia [2025] FCA 466  

File number(s): QUD 24 of 2024
Judgment of: MEAGHER J
Date of judgment: 12 May 2025
Catchwords: COURTS AND JUDGES – Bias – Reasonable apprehension of bias – Whether a fair-minded lay observer might reasonably apprehend that judge might not bring an impartial mind to the hearing of the proceeding – Knowledge and characteristics attributed to fair-minded lay observer – Whether logical connection established – Application dismissed
Legislation:

Fair Work Act 2009 (Cth) ss117(2)(a), 117(2)(b), 340, 370, 539(1), 539(2), 545(1), 545(2), 546, 550(2)

Federal Court of Australia Act 1976 (Cth) s 37M(1)
Cases cited:

Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 65 FCR 215

Burgess v Minister for Immigration and Border Protection (2018) 259 FCR 197

Christian v Société Des Produits Nestlé SA(No 1) [2015] FCAFC 152

CM v Secretary, Department of Communities and Justice [2021] NSWCA 244

Johnson v Johnson (2000) 201 CLR 488

Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424

Mbuzi v Wordsworth (Recusal Application) [2024] FCA 132

Mbuzi v Wordsworth [2024] FCA 977

Orikan Group Pty Ltd v Vehicle Monitoring Systems Pty Ltd (2023) 177 IPR 319

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148

Sheehy v Nuix Pty Ltd (2023) 166 ACSR 528
Division: Fair Work Division
Registry: Queensland
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 45
Date of hearing: 18 September 2024
Counsel for the Applicant: The Applicant appeared in-person
Counsel for the Respondents: Mr JR McLean
Solicitor for the Respondents: Corrs Chambers Westgarth

ORDERS

QUD 24 of 2024
BETWEEN:

JOSIYAS MBUZI

Applicant
AND:

WORLD VISION AUSTRALIA

First Respondent

ELISA LURATO

Second Respondent

BRENT STALHUT (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

MEAGHER J

DATE OF ORDER:

12 MAY 2025

THE COURT ORDERS THAT:

1.The recusal application be dismissed.

2.The matter be set down for a case management hearing on a date to be fixed.

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


REASONS FOR JUDGMENT

MEAGHER J

INTRODUCTION

  1. This is an application seeking my recusal from the proceedings in QUD24/2024, wherein the applicant sought relief under the Fair Work Act 2009 (Cth), against World Vision Australia and others.

  2. For the reasons that follow, the applicant’s application for my recusal is dismissed.

    BACKGROUND

  3. In QUD523/2023, the applicant lodged an originating application on 27 November 2023 against World Vision Australia and two natural person respondents for contraventions of the Act. In that originating application, the applicant sought a mandatory injunction, damages, pecuniary penalties and declarations pursuant to ss 545(1) and (2), 546, 539(1) and (2) and 550(2) of the Act.

  4. The applicant filed an affidavit, sworn on 29 January 2024, and made an oral application during the first case management hearing held on 31 January 2024, seeking my recusal (the first recusal application). The first recusal application was decided on the papers, and…

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Details
Case
[2025] FCA 466
Decision Date

CaseChat Overview and Summary

Mbuzi v World Vision Australia concerns the applicant’s application for the judge’s recusal in proceedings against World Vision Australia and several respondents. The applicant lodged the application on 27 November 2023, seeking a mandatory injunction, damages, pecuniary penalties and declarations under the relevant sections of the Act. The applicant made an oral application for the judge's recusal on 31 January 2024, which was dismissed. The applicant subsequently sought leave to appeal, which was also dismissed. A new application was filed on 21 December 2023, seeking declarations and orders in respect of an unlawful termination. The applicant made another oral application for the judge's recusal on 25 March 2024, which is the subject of this decision.

The legal issues before the court were whether the judge might reasonably be apprehended as biased against the applicant, considering the criteria established in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The test involves identifying a factor that might lead to an apprehension of bias, articulating the logical connection between that factor and the apprehended deviation from deciding the matter on its merits, and assessing the reasonableness of that apprehension from the perspective of a fair-minded lay observer. The court had to determine if the applicant’s concerns were sufficient to establish such a reasonable apprehension of bias.

The court assessed the applicant’s submissions and found no reasonable grounds for an apprehension of bias. The judge noted that although a complaint has been lodged, its outcome is unknown, and no action has been taken in relation to it. The judge concluded that there was no factor that could reasonably lead a fair-minded lay observer to apprehend bias. Therefore, the application for the judge's recusal was dismissed.

ORDERS:
1. The recusal application be dismissed.
2. The matter be set down for a case management hearing on a date to be fixed.

Orders

Orders of the court

1. The recusal application be dismissed.

2. The matter be set down for a case management hearing on a date to be fixed.

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

Background

Background to the litigation

For the reasons that follow, the applicant’s application for my recusal is dismissed. BACKGROUND In QUD523/2023, the applicant lodged an originating application on 27 November 2023 against World Vision Australia and two natural person respondents for contraventions of the Act. In that originating application, the applicant sought a mandatory injunction, damages, pecuniary penalties and declarations pursuant to ss 545(1) and (2), 546, 539(1) and (2) and 550(2) of the Act. The applicant filed an affidavit, sworn on 29 January 2024, and made an oral application during the first case management hearing held on 31 January 2024, seeking my recusal (the first recusal application). The first recusal application was decided on the papers, and judgement delivered on 26 February 2024. The application was dismissed. The applicant sought leave to appeal that decision, and by the Court’s order, on 25 March 2024, the matter in QUD523/2023 was stayed, until the final disposition of that matter: Mbuzi vWordsworth(Recusal Application)[2024] FCA 132. On 1 August 2024, the appeal was heard by Moshinsky J. His Honour ordered that the applicant’s application for leave to appeal be dismissed. No order as to costs was made. On 21 December 2023, the applicant lodged an originating application in this matter QUD24/2024. This application sought declarations and orders pursuant to ss 340, 545(1) and (2), 546, 539(1) and (2), 550(2) and 117(2)(a) and (b) of the Act, in respect of an unlawful termination against World Vision Australia and five natural person respondents, all different from the natural person respondents in QUD523/2023. There would appear to be considerable overlap between the subject matter of the litigation in QUD523/2023 and QUD24/2024. At the commencement of the first case management hearing in QUD24/2024 on 25 March 2024 the applicant made an oral application for my recusal, in respect of which he lodged submissions on 2 October 2024. The respondent lodged submissions on 16 October 2024.LEGAL PRINCIPLES The relevant legal principles to consider in a recusal application are as follows. Reasonable Apprehension of Bias In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15, Kiefel CJ and Gageler J stated the test for reasonable apprehension of bias at [37] – [38]: The criterion for the determination of an apprehension of bias on the part of a judge was definitively stated in Ebner by reference to previous authority and has often been repeated. The criterion is whether “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 “double might” serves to emphasise that the criterion is concerned with “possibility (real and not remote), not probability”.Application of the criterion was identified in Ebner, and has been reiterated, logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.(Footnotes omitted.)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Although the complaint has been lodged, the outcome is unknown. I have taken no action in relation to the complaint. Consequently, there can be no argument that such a factor could be deemed as a “reasonable” ground for an apprehension of bias: Burgess at [35]. CONCLUSION The applicant’s application for my recusal is dismissed. A further case management hearing shall be held on a date to be fixed to progress the matter

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.