McKenzie v Cash Converters International Ltd (No 3)

McKenzie v Cash Converters International Ltd (No 3) involved an application by the defendant, Cash Converters International Ltd, for the disqualification of the judge, his Honour Justice Gilmour, on the basis of apprehended bias. The underlying dispute was a proposed class action settlement, with Cash Converters seeking approval of the settlement under section 33V of the Federal Court of Australia Act 1976 (Cth). McKenzie opposed the application for disqualification, arguing that it was not made in good faith and was instead an attempt to delay proceedings.

The primary legal issue the court had to decide was whether the judge should be disqualified due to an apprehended bias based on the hypothetical perspective of a lay observer. Cash Converters argued that the judge had previously provided advice on a related proceeding, potentially leading to a bias. McKenzie contended that the judge's past involvement was not such that a reasonable observer would apprehend bias. The court had to assess the steps involved in such an allegation, including whether the judge had formed an opinion on a relevant aspect of the matter, whether the judge would apply that opinion without fresh consideration, and whether the issue should be considered afresh in relation to the particular case.

The court found that the arguments advanced by Cash Converters were flawed. It was noted that even if the judge had previously formed an opinion based on a different universe of material, the nature of the inquiry required in a section 33V application would necessitate fresh consideration of the facts and arguments. The court concluded that a reasonable observer would not apprehend that the judge might prejudge the settlement approval application based on the past advice. Therefore, the application for disqualification was dismissed.

The court also addressed procedural observations regarding the appropriate manner in which the issue of apprehended bias should be raised. The interlocutory application was dismissed, and any issue regarding the costs of the interlocutory application was to be determined by 31 January 2019.