Ogawa v Attorney General's Department (Recusal Application)
[2023] FCA 1015
•28 August 2023
FEDERAL COURT OF AUSTRALIA
Ogawa v Attorney General’s Department (Recusal Application) [2023] FCA 1015
File number(s): QUD 127 of 2023
QUD 298 of 2023Judgment of: MEAGHER J Date of judgment: 28 August 2023 Catchwords: COURTS AND JUDGES – Application for disqualification – Whether fair minded observer might reasonably apprehend that judge might not bring an impartial mind to the hearing of proceeding – Whether logical connection is established – Interlocutory application dismissed
PRACTICE AND PROCEDURE – Where operative decision is being remade – Where final relief lacks utility – Application dismissed
Legislation: Federal Court of Australia Act 1976 (Cth) ss 20A, 37M
Judiciary Act 1903 (Cth) s 39B
Racial Discrimination Act 1975 (Cth) s 9
Federal Court Rules 2011 (Cth) r 8.06
Cases cited: Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd & Qantas Airlines Ltd (1996) 65 FCR 215
British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2
Burgess v Minister for Immigration & Border Protection (2018) 259 FCR 197; [2018] FCA 69
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Johnson v Johnson (2000) 201 CLR 488
Ogawa v Commonwealth of Australia [2023] FCA 929
Praljak v State of Queensland [2022] FCA 572
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; 409 ALR 65
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 58 Date of hearing: 22 August 2023 In QUD 127 of 2023: Counsel for the Applicant: The applicant appeared in-person Solicitor for the Respondent: Ms J Forsyth of Moray & Agnew In QUD 298 of 2023: Counsel for the Applicant: The applicant appeared in-person Counsel for the Respondent: Ms S A Amos Solicitor for the Respondent: Holding Redlich ORDERS
QUD 127 of 2023 BETWEEN: DR MEGUMI OGAWA
Applicant
AND: ATTORNEY-GENERAL'S DEPARTMENT
Respondent
ORDER MADE BY:
MEAGHER J
DATE OF ORDER:
28 AUGUST 2023
THE COURT ORDERS THAT:
1.The interlocutory application be dismissed.
2.Costs of and incidental to the interlocutory application be costs in the proceeding.
3.The order dated 27 June 2023 be vacated.
4.By 4:30pm on 21 September 2023 the applicant file and serve on the respondent:
(a)written submissions (not exceeding 10 pages in length) in respect of the application for judicial review and interlocutory orders; and
(b)any affidavit material upon which she intends to rely.
5.By 4:30pm on 19 October 2023, the respondent file and serve on the applicant:
(a)written submissions (not exceeding 10 pages in length) in respect of the application for judicial review and interlocutory orders; and
(b)any affidavit material upon which it intends to rely.
6.By 4:30pm on 2 November 2023, the applicant file and serve on the respondent written submissions in reply (not exceeding 5 pages in length).
7.The matter be set down for a case management hearing on a date to be fixed.
8.There be liberty to apply on three days’ notice.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
QUD 298 of 2023 BETWEEN: DR MEGUMI OGAWA
Applicant
AND: AUSTRALIAN INFORMATION COMMISSIONER
Respondent
ORDER MADE BY:
MEAGHER J
DATE OF ORDER:
28 AUGUST 2023
THE COURT ORDERS THAT:
1.The interlocutory application be dismissed.
2.The proceeding be dismissed.
3.Costs of and incidental to the interlocutory application be costs in the proceeding.
4.By 4:30pm on 7 September 2023, the applicant is to file any written submissions (not exceeding 10 pages in length) addressing costs and suppression orders.
5.Pursuant to s 20A of the Federal Court of Australia Act 1976 (Cth), the question of costs and suppression to be determined on the papers thereafter.
6.There be liberty to apply on three days’ notice.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MEAGHER J
INTRODUCTION
By interlocutory applications filed on 14 August 2023, the applicant sought orders that I disqualify myself from hearing two of her matters, QUD127/2023 Dr Megumi Ogawa v Attorney-General's Department (AGD Proceeding) and QUD298/2023 Dr Megumi Ogawa v Australian Information Commission (AIC Proceeding). I determined that, consistent with the overarching purpose referred to in s 37M of the Federal Court of Australia Act 1976 (Cth), both matters should be heard together, as they would likely encompass the same or very similar issues. In the AGD Proceeding the respondent opposed the interlocutory application, and in the AIC Proceeding the respondent indicated that it would abide the order of the Court.
Another matter that was before me involving the applicant, QUD139/2023 Dr Megumi Ogawa v Commonwealth of Australia (the Commonwealth Proceeding), was dismissed on 8 August 2023: Ogawa v Commonwealth of Australia [2023] FCA 929.
REASONABLE APPREHENSION OF BIAS
The test for apprehended bias was recently considered by the High Court in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; 409 ALR 65 at [37] (Kiefel CJ and Gageler J), [67] (Gordon J), [221] (Gleeson J), [274] (Jagot J) which affirmed the test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63. At [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ), the test is articulated as 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 Ebner test is two-fold, requiring first the identification as to the factor which might lead a decision maker to determine the matter other than on its legal and factual merits, and secondly the identification of a logical connection between the said factor and the risk of the matter being decided other than on its legal and factual merits: Ebner at [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ). It was accepted in QYFM that a third step of the test is required, being a consideration of reasonableness of the asserted apprehension of bias: [38] (Kiefel CJ and Gageler J), [67] (Gordon J), [225] (Gleeson J), [275] (Jagot J).
For a logical connection to be established, there must be "a cogent and rational link between the association and its capacity to influence the decision": Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd & Qantas Airlines Ltd (1996) 65 FCR 215 at 235.
Regarding the “double might” in the test, Charlesworth J in Burgess v Minister for Immigration & Border Protection (2018) 259 FCR 197; [2018] FCA 69 said at [35]-[36]:
The first “might” concerns the likelihood (to be assessed by the Court) of the lay observer forming the reasonable apprehension. The second “might” concerns the content of the apprehension itself. It concerns the assessment (notionally made by the lay observer) of the likelihood of the decision-maker having a foreclosed mind (as opposed to having a predisposed opinion) and so deviating from the course of deciding a case on its merits.
Judicial statements to the effect that an allegation of apprehended bias must be distinctly made and clearly established are not to be understood as altering the degrees of likelihood inherent in the test itself: see MZZXM v Minister for Immigration & Border Protection [2016] FCA 405 at [106] and the cases cited therein. Each “might” in the double might test connotes a degree of likelihood that is lower than that which may be required by the civil standard of proof in an ordinary fact-finding context. It must nonetheless be shown that the reasonable lay observer might apprehend that the decision-maker might have a foreclosed mind. It is not sufficient to demonstrate that the observer may have “a vague sense of unease or disquiet” on the question: Jones (as President of the Victorian Farmers Federation Chicken Meat Group) v Australian Competition and Consumer Commission (2002) 76 ALD 424 at [100] (Weinberg J).
The test is applied through the lens of the fair-minded lay observer, who is attributed with a number of characteristics. Kiefel CJ and Gageler J in QYFM summarised the characteristics at [47] - [49]:
Being “fair-minded”, the observer “is neither complacent nor unduly sensitive or suspicious”. Yet the observer is cognisant of “human frailty” and is all too aware of the reality that the judge is human. The observer understands that “information [as well as attitudes] consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-making”.
Being “lay”, the observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge”. Though the observer may be taken to understand that the judge, by reason of professional training and experience and fidelity to the judicial oath or affirmation, will have a greater capacity than most to discard “the irrelevant, the immaterial and the prejudicial” and to discharge the judicial function uninfluenced by past professional relationships, “the public perception of the judiciary is not advanced by attributing to the … observer a knowledge of the law and an awareness of the judicial process that ordinary experience suggests not to be the case”. This indicates that the observer will see the person who is currently a judge as the person who was formerly an advocate and may be less inclined to dissociate the advocate from the cause advocated than would someone steeped in the adversary process with a cultivated sense of the ethics of the legal profession and the profundity of the judicial oath.
Nor is the observer so abstracted and dispassionate as to be insensitive to the impression that the circumstances in issue might reasonably create in the mind of the actual party who is asserting an apprehension of bias. The observer can be taken to appreciate that a party — especially an individual, and especially a non-citizen facing deportation on the basis of his conviction — might understandably experience a justifiable sense of disquiet in seeing his former prosecutor turn up as one of his judges.
(Footnotes omitted)
The fair-minded lay observer is “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
The applicant raised seven points which she submitted give rise to a reasonable apprehension of bias. I will address each in turn. First, I will outline brief details of the proceedings to provide context for the applicant’s submissions.
The AGD Proceeding commenced by originating application filed on 31 March 2023. This matter involved the applicant seeking review of a decision made by a delegate of the Attorney-General’s Department. The applicant sought the following relief pursuant to s 39B of the Judiciary Act 1903 (Cth):
1.A writ of certiorari quashing the Respondent's decision dated 2 March 2023.
2.A writ of mandamus directing the Respondent to consider and determine according to law the Applicant's application for Legal Financial Assistance emailed to the Respondent on 20 December 2022.
3.Such and other orders the Court thinks fit.
4.An order that the Respondent pay the costs of and incidental to this proceeding.
The applicant also sought the following interlocutory orders:
1.Under s 17(4) of the Federal Court of Australia Act 1976, only the parties and the Applicant's support persons be allowed to be present in the proceeding of this matter.
2.Under s 37AG(1)(a) and (c) of the Federal Court of Australia Act 1976, the entire proceeding be suppressed in this matter and publication of any documents filed in this matter be prohibited until further order.
3.Under s 37AI(1) of the Federal Court of Australia Act 1976, the interim suppression order be made until the hearing and determination of this Interlocutory Application.
4.Such an other orders that the Court thinks fit.
A case management hearing was held on 27 June 2023. The respondent provided draft orders which stipulated, inter alia, that the applicant's interlocutory application and application for judicial review be determined on the papers, and provided suggested dates for timetabling the matter to a hearing on the papers. At the case management hearing, the applicant stated that a hearing on the papers might be possible, but it is unusual given she is self-represented. I indicated to the applicant that I was happy to hear from her as to why she thinks that the hearing should not be done on the papers. In any event, no order was made that the hearing be on the papers.
The Commonwealth Proceeding commenced by originating application filed on 31 March 2023. The applicant sought the following relief pursuant to s 39B of the Judiciary Act:
1.A declaration that the Applicant’s detention by the Respondent between 2 November 2017 and 9 February 2018 inclusive was unlawful.
2.An order that the Respondent pay damages for false imprisonment.
3.An order that the Respondent pay damages for trespass to chattels and/or conversion.
4.An order that the Second Respondent pay damages for assault and/or battery.
5.Such and other orders, declarations and/or relief that the Court thinks fit.
6.An order awarding costs in favour of the applicant.
The applicant also sought the following interlocutory orders:
1.Under s 37AG(1)(a) of the Federal Court of Australia Act 1976, paragraph 4 of the Affidavit of Dr Megumi Ogawa sworn on 31 March 2023 be supressed until further order.
2.Under s 37AI(1) of the Federal Court of Australia Act 1976, an interim suppression order be made until the hearing and determination of this Interlocutory Application.
3.Such and other orders that the Court thinks fit.
A case management hearing was held on 27 June 2023. The applicant advised that she had made an error in the originating application, and asked how she could fix the error. I advised the applicant that I cannot give her legal advice but noted that she could make an application for leave to amend the originating application, or withdraw the existing application and re-file it if she so chooses. I indicated to the applicant that if she wished to amend her application, she could make any such application by 8 August 2023, which was the date of the next case management hearing. The applicant took no objection to that course during the case management hearing.
The applicant was also advised that she needed to prove service upon the respondent on the following occasions: by email on 11 May 2023, by email on 31 May 2023, and at the case management hearing on 27 June 2023.
A further case management hearing was held on 8 August 2023. By that date nothing had been filed indicating service had been effected, and the applicant did not attend the hearing. The judgment in Ogawa v Commonwealth dismissed that proceeding by reason of the applicant’s defaults, namely failure to prove service of the originating application and to appear at a case management hearing. At paragraph [5], I quoted from an email that Chambers had received from the applicant the day prior to the case management hearing which advised, inter alia, that the applicant would not be attending the case management hearing because her guinea pig was unwell and she needed to care for it, and that, in any event, she sought that I recuse myself and that she does not attend hearings when she has asked the judge to recuse him or herself.
The AIC Proceeding commenced by originating application filed on 6 July 2023. This matter involved the applicant seeking review of a decision of the Office of the Australian Information Commissioner to refuse to investigate a complaint made by the applicant. The applicant sought the following relief pursuant to s 39B of the Judiciary Act:
1.A writ of prohibition be issued prohibiting the Respondent, by herself, her delegate or her agent, from taking action on the Respondent’s decision dated 5 July 2023.
2.A writ certiorari be issued quashing the Respondent’s decision dated 5 July 2023.
3.A writ of mandamus be issued directing the Respondent to consider and determine according to law the Applicant’s complaint CP23/01779.
4.Such and other orders that the Court thinks fit.
5.The Respondent pay the costs of and incidental to this proceeding.
The applicant also sought the following interlocutory orders:
1.Under s 37AG(1)(a) and (c) of the Federal Court of Australia Act 1976, the supporting Affidavit sworn by Dr Megumi Ogawa be supressed until further order.
2.Under s 37AI(1) of the Federal Court of Australia Act 1976, the interim suppression order be made until the hearing and determination of this Interlocutory Application.
3.Under s 17(4) of the Federal Court of Australia Act 1976, only the parties and the Applicant’s support persons be allowed to be present at the hearing for the interlocutory application for the abovementioned orders 1 and 2.
4.The hearing of this Application be expedited.
5.If the Application Book is required, the Respondent produce the Application Book.
6.Such and other orders that the Court thinks fit.
On 24 July 2023, the applicant was informed via email from the Queensland Registry that the AIC Proceeding had been docketed to me, and that it had been set down for a case management hearing on 8 August 2023. On the same date, the applicant advised via email that she intended to file an interlocutory application seeking my recusal. By the date of the case management hearing, no such application had been filed.
At the case management hearing, the respondents handed up an affidavit which annexed a letter from the Office of the Australian Information Commissioner dated 7 August 2023 which stated, inter alia, that the applicant's privacy complaint will be re-considered. As such, it became apparent that the relief the applicant sought in her originating application lacked utility.
The applicant acknowledged at the case management hearing that a substantive hearing had no utility but that she sought suppression orders and costs in the proceeding, however requested my recusal before those applications were dealt with. Given that the applicant had foreshadowed making an application that I recuse myself more than two weeks prior to the case management hearing, I ordered that she file and serve any interlocutory application and supporting material by 15 August 2023, that the respondent file and serve any material in reply by 21 August 2023 and that the matter be set down for an interlocutory hearing on 22 August 2023. The applicant filed an interlocutory application and supporting affidavit on 14 August 2023, and filed and served written submissions the morning of 22 August 2023.
The applicant stated that she wanted to obtain a transcript in a different proceeding, and I advised her that she should direct her request to the Registry. The applicant said to the effect that one week might not be enough time to obtain the transcript, and I responded that she should email quickly.
1. Commonwealth Proceeding: The judgment of Ogawa v Commonwealth
First, the applicant submitted that copying the entire email except for the last two lines of her signature/footer and adding the phrase “emphasis in original'” constitutes judicial mockery and racial discrimination in breach of s 9 of the Racial Discrimination Act 1975 (Cth). The applicant submitted that the fair-minded lay observer might consider this to be a manifestation of prejudice against her. It is difficult to comprehend how omitting two lines from the footer of an email would cause the fair-minded lay observer to consider that I might be prejudiced against the applicant, or how the fair-minded lay observer might regard this as racial discrimination. The substantive contents of the email, being the reasons why the applicant said she could not attend the case management hearing, were quoted to give context to the judgment. The two lines that were omitted from the applicant's signature include a link to a "Bepress" website and a link to a "Linkedin" page. The use of the words “emphasis in original” was to reflect that any bolding was that of the applicant’s, not the Court.
Second, the applicant submitted that the fair-minded lay observer might consider that my comment in the judgment at [7] that she had failed to serve the other party without any evidence before me that she had not served the respondent might be a manifestation of prejudice against her. Pursuant to r 8.06 of the Federal Court Rules 2011 (Cth) the onus is on the applicant to prove that service has been affected upon the other party. The applicant was, as is set out above, on notice of that. She provided no evidence that she had served the other party to the proceeding.
Third, the applicant submitted that the fair-minded lay observer might consider my finding that her non-appearance was not reasonable might be a manifestation of prejudice against her, in circumstances where "non-participation in the hearing before the judge while making an application for the disqualification of the judge cannot be unreasonable because participating in the proceeding before the judge is regarded as acquiescence, which is a ground for the refusal to disqualify."
Fourth, the applicant submitted that her culture has an appreciation for pets that is different from that which is seen in Australian culture, such that she would not want to attend Court instead of caring for her pet.
I find the third and fourth submissions hard to accept in circumstances where the applicant appeared before me in the AIC Proceeding, (which was set down immediately after the Commonwealth proceeding that she did not attend) and in which she also foreshadowed a disqualification application weeks prior. Furthermore, as is evident from the transcript of the Commonwealth Proceeding of 8 August 2023, the applicant was in the vicinity of the Court at the time of the case management hearing, responded to the Court Officer when her matter was called, but declined to enter the court room. In any event, it is a matter for the applicant whether she wishes to appear at a case management hearing or not.
While the applicant identified what she considers to be a relevant factor, being step one of the Ebner test, the logical connection is not established. There is no cogent or rational link between me omitting links to various website pages, finding that the applicant had failed to serve another party in circumstances where no evidence was provided that she had served the other party, and making a decision that I did not find her excuse for non-appearance as reasonable, and an apprehension that I might be prejudiced against the applicant. The fair-minded lay observer, having a broad knowledge of material objective facts, as well as the nature of the decision and the circumstances leading to it, would not reasonably apprehend that I might be biased against the applicant. Furthermore, while the fair-minded lay observer is not attributed with detailed knowledge of the law, they are to be aware of the relevant statutory framework. In those circumstances, I am not satisfied that the fair-minded lay observer might consider the above to be racial discrimination which might be a manifestation of prejudice against the applicant.
The applicant made a number of other submissions which are essentially complaints about the judgment. They assert that her reasons for non-appearance were reasonable. They are more properly matters for an appeal against the judgement. If the applicant wishes to appeal she is entitled to exercise that right.
2. Commonwealth Proceeding: The case management hearing on 27 June 2023
The applicant submitted that the fair-minded lay observer might consider that my "refusal" to grant leave to correct an error in her originating application, which had not been served on the respondent, might be a manifestation of prejudice against her.
I do not accept that the fair-minded lay observer might perceive this to be a reasonable apprehension of bias. I directed the applicant as much as I could without providing legal advice, and it was a matter for the applicant as to how she wished to proceed. No logical connection is established between the conduct mentioned above, and the risk that I might decide the matter other than on its legal and factual merits. There is no merit in this argument.
3. Commonwealth Proceeding: Rejection of lodgement
The applicant referred to a lodgement that was rejected by the Duty Registrar on 22 August 2023, and submitted that it "looks like" the rejection was ordered by myself. It appears that the documents to which the applicant was referring were documents that she had attempted to lodge in the Commonwealth Proceeding, after it had been dismissed. The email from the Queensland Registry details the reason for rejection of the lodgement being that "A party cannot reinstate a proceeding by way of interim application but rather it would be through an Application for Leave to Appeal with a supporting affidavit". The applicant speculated that I was attempting to prevent the Commonwealth Proceeding from being heard.
I had no involvement in the operations and decisions of the Duty Registrar in relation to the documents to which the applicant refers. Having said that, I observe that the email sent by the Duty Registrar is quite orthodox and contains information that seeks to assist the applicant. It is not reflective of a conspiracy on my part to frustrate the applicant. The applicant's submissions are both highly speculative and simply wrong.
The fair-minded lay observer, understanding these factors, could not possibly consider that this might give rise to a reasonable apprehension of bias. There is no logical connection between a Duty Registrar's decision to reject the filing of a document, and a reasonable apprehension that I might decide the matter other than on its legal and factual merits. There is no merit in this argument.
4. Commonwealth Proceeding: Email correspondence between the applicant and Queensland Registry
On 21 August 2023, the day prior to the hearing of this application, the applicant emailed my Chambers and the Queensland Registry attaching an unsealed interlocutory application seeking my disqualification and an unsealed affidavit, to be filed in the Commonwealth Proceeding. In a separate email, the applicant queried whether the disqualification application in the Commonwealth Proceeding would be heard at the same time as the AIC Proceeding and AGD Proceeding. The applicant was advised that the Commonwealth Proceeding was not listed with the other two proceedings.
The applicant submitted that a fair-minded lay observer might consider a decision not to hear the disqualification application in the Commonwealth Proceeding on 22 August 2023 as me providing sufficient time for preparation of the hearing only to the respondent, which might be a manifestation of my prejudice against the applicant.
This submission is not only highly speculative, but also misleading. The Commonwealth Proceeding was dismissed. The documents emailed to my Chambers were not filed, and any decision about the filing of those documents was, and had been, a matter for the Registry. In circumstances where a matter has been dismissed and no documents have been filed, it would not be appropriate to set the matter down for an interlocutory hearing. The fair-minded lay observer could not reasonable apprehend that a registry decision in which I had no involvement might be a manifestation of prejudice against the applicant. No logical connection arises between the factor identified by the applicant and the risk that the matter be decided other than on its legal and factual merits. The applicant is required to abide by the rules of the Court, as is every other party before this Court. There is no merit in this argument.
5. AIC Proceeding: The case management hearing on 8 August 2023
The applicant submitted that my decision to require her to file her material within a week and attend a hearing the week thereafter is indirect discrimination pursuant to the Racial Discrimination Act, as she is a non-native English speaker. The applicant submitted that the fair-minded lay observer might consider the timetabling order a manifestation of prejudice against her.
At the case management hearing, the applicant's objection to me providing one week for her to file any material with respect to the recusal application, costs and suppression orders seemed to be centred on draft orders provided to my Chambers on 7 August 2023 by the respondent. As is clear from the transcript, the parties agreed about the timetable for the material necessary for a substantive hearing, however as referred to in paragraphs [21]-[22] above, a substantive hearing is no longer necessary. The applicant initially asserted that the respondent had agreed that she should have the same amount of time to file any interlocutory application she wished to make, and supporting material, as was contemplated for the filing of material in relation to the substantive matter. The respondent submitted that there had been no agreement about the interlocutory applications. Ultimately, the applicant conceded that no such agreement had been reached.
It is ultimately a matter for the judge as to the effective case management of the proceeding. Mindful of the overarching purpose contained in s 37M of the Act, and in circumstances where the applicant had foreshadowed an application that I recuse myself some weeks ago, and where the proceeding ought be dismissed, I determined to proceed as outlined above. In allowing time to make the applications I took account of the fact that the applicant is self-represented.
The comment I made that the applicant should email quickly was a suggestion so that the hearing date for the interlocutory application could be maintained, and to prevent any further delay in resolving the application in circumstances where it ought to be dismissed.
The fair-minded lay observer, being aware of the factors leading to a decision and the broad knowledge of material objective facts, could not reasonably apprehend that I might be prejudiced by reason of my case management of the proceeding. The plurality in Johnson v Johnson (2000) 201 CLR 488 at [13] acknowledged that the reasonableness of an apprehension of bias "is to be considered in the context of ordinary judicial practice", including modern case management practices. Similarly the High Court in British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 (Heydon, Kiefel (as her Honour then was) and Bell JJ) acknowledged the active role modern judges play in case management, and that this is "unlikely to disqualify the judge from further hearing the proceeding" (at [140]). It is unremarkable that I might make orders that are not consistent with those which one of the parties was originally seeking, especially in circumstances where the landscape of the entire proceeding had changed within 24 hours. The fair-minded lay observer would appreciate these factors, and could not reasonably think that my case-management decision might give rise to an apprehension of bias by being indirectly discriminatory. No logical connection is established.
6. AGD Proceeding: The case management hearing on 27 June 2023
The applicant submitted that a fair-minded lay observer might consider my question to her, as to why she did not consider a hearing on the papers appropriate, might be a manifestation of prejudice against her.
The Court has the power to order that a civil matter be dealt with without an oral hearing. Section 20A of the Act provides the following:
20A Power of the Court to deal with civil matters without an oral hearing
(1) This section applies in relation to any civil matter coming before the Court in the original jurisdiction of the Court.
(2) The Court or a Judge may deal with the matter without an oral hearing (either with or without the consent of the parties) if satisfied that:
(a) the matter is frivolous or vexatious; or
(b) the issue or issues on which determination of the matter depends have been decided authoritatively in the case law; or
(c) determination of the matter would not be significantly aided by an oral hearing because:
(i) there is no real issue of fact relevant to determination of the matter; and
(ii) the legal arguments in relation to the matter can be dealt with adequately by written submissions.
(3) This section does not limit subsections 20(4) and (6).
A discussion about how the hearing might be conducted is a standard part of case management. The applicant was asked why she would not want a hearing on the papers so as to obtain her views on the matter. The applicant submitted that this had never occurred before in other matters, and therefore the fair-minded lay observer might consider this to be an apprehension of bias.
The fair-minded lay observer, with the above context, and without being overly suspicious, would not consider that a discussion about the mode of hearing might be a manifestation of prejudice against her. On the contrary, the fair-minded lay observer would appreciate that the question was asked so as to give the applicant an opportunity to provide her views. Comparing how another judge might manage cases with how I do so is not probative of a reasonable apprehension of bias. No logical connection is established.
7. Complaint to Mortimer CJ
The applicant advised that she had made a complaint of racial discrimination to Mortimer CJ. The applicant submitted that this should be taken into account as, "unless the Applicant’s complaint is resolved in her favour before either the Chief Justice or the Australian Human Rights Commission, it will become a proceeding in this court where Justice Meagher will be a respondent." The applicant submitted that "[i]f Justice Meagher insists on hearing the present case in spite of these circumstances, it might be seen by a reasonable lay-observer as further material creating apprehension of bias".
As the applicant submitted, the complaint was made to the Chief Justice. Accordingly, the complaint is a matter for the Chief Justice, and not something that it is appropriate for me to deal with. It does not appear to me that there is any reason why the applicant's matters should not proceed. The applicant is entitled to make a complaint, which should not cause her matters to be delayed. Indeed, the applicant requested expedition in the AIC Proceeding. The applicant filed interlocutory applications for my disqualification, and it is my duty to decide those applications in accordance with the law. The fair-minded lay observer would appreciate these factors, and would not regard this as a reasonable apprehension of bias, nor that a logical connection is established.
The applicant referred to the case of Praljak v State of Queensland [2022] FCA 572. This case involves a claim against the Federal Court and the docket judge, the Honourable Justice Logan, arising out of a dismissal by the Australian Human Rights Commission of a complaint regarding the conduct of a matter before the Court. The complaint became a proceeding before this Court, where his Honour was named as a party in the proceeding.
Ultimately, in that matter, Logan J disqualified himself from further hearing the proceeding "in the interests of the judicial power of the Commonwealth being seen to be exercised impartially" (at [28]). In doing so, his Honour discussed the relevant authorities and drew a clear distinction between the situation where a complaint has been made about a judge and where a judge is a party in a relevant proceeding. At paragraphs [22] – [24] his Honour stated the following:
The position in the present case may well be different in the event that there was but a complaint to the Human Rights Commission which had been considered and dismissed by the Commission. I readily accept that the mere fact of the making of a complaint does not in itself, having regard to what was said in the passage quoted in Charisteas, which takes up, inter alia, observations earlier made in Ebner, occasion a basis for disqualification.
If it were otherwise, it would be possible for a particular litigant to, in effect, pick and choose, according to the mere making of the complaint who, would come to exercise Commonwealth judicial power in respect of a particular case.
The position, however, in my view, is different where the judge concerned is named as a party to a proceeding to which one of the parties to another proceeding where that other proceeding commenced by a party to a subsisting proceeding on a judge’s docket.
It is my understanding that no such proceeding, or one of a similar kind, has been commenced by the applicant against me. I do not consider that this case advances the applicant’s case, nor do I consider that continuing to hear the applicant’s matters in circumstances where the applicant has made a complaint to the Chief Justice gives rise to a reasonable apprehension of bias.
DISMISSAL OF AIC PROCEEDING
At the case management hearing of the AIC Proceeding on 8 August 2023, when the applicant indicated that she was seeking costs in the proceeding and suppression orders, I ordered that the applicant file any material in relation to those issues, as well as my disqualification, by 15 August 2023. The applicants submissions, filed on 22 August 2023, only address the issue of my disqualification. The respondent filed submissions on 21 August 2023 addressing costs and dismissal, as ordered. At the outset of the interlocutory application, I indicated to the parties that subject to the outcome of the application for my recusal, I was minded to deal with the disqualification application and the potential dismissal of the AIC Proceeding together. Noting that the applicant hadn't filed any submissions with respect to suppression and costs, I advised that, dependent on the outcome of the disqualification application, I would be minded to allow the applicant further time to file submissions in those respects, but intended to hear from the respondent in that regard, so as to be able to deal with the questions of costs and suppression on the papers.
The applicant made no submissions as to dismissal of the AIC Proceeding. The respondent submitted that the decision subject to these proceedings is no longer operative, therefore the proceedings lack utility as the decision has, in effect, been revoked and the complaint will be reconsidered. The respondent submitted that dismissal is consistent with s 37M of the Act, being the timely disposal of the proceeding and efficient use of judicial and administrative resources.
The substantive relief sought by the applicant in the AIC Proceeding was that the respondent reconsider the decision according to law. The respondent is doing so. In those circumstances, it is clear that these proceedings should be dismissed pursuant to s 37P(6)(a) of the Act. Given I have decided not to recuse myself, I will allow the applicant time to provide submissions on costs and suppression.
CONCLUSION
The applicant's interlocutory applications are dismissed. The AIC Proceeding is dismissed. Costs of and incidental to the interlocutory applications will be costs in the proceedings.
The orders in the AGD Proceeding, which required the filing of submissions and evidence to be relied upon at final hearing, have not been complied with. I will extend time for the provision of those documents.
Orders will be made in the AIC Proceeding for the applicant to file written submissions as to costs and suppression orders. A determination will be made on the papers after receipt of those submissions.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Meagher. Associate:
Dated: 28 August 2023
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