Setka v Gregor - [2011] FCAFC 64

FEDERAL COURT OF AUSTRALIA
Setka v Gregor [2011] FCAFC 64

Citation: Setka v Gregor [2011] FCAFC 64

Appeal from: Gregor v Setka [2010] FMCA 690

Parties: JOHN SETKA v MURRAY GREGOR

File number: VID 10 of 2011

Judges: LANDER, TRACEY AND YATES JJ

Date of judgment: 12 May 2011

Catchwords: PRACTICE AND PROCEDURE – bias – recusal application – reasonable apprehension of bias test applied no bias may be reasonably apprehended – application refused

Legislation: Workplace Relations Act 1996 (Cth) s 767

Cases cited: Cabcharge Australia Limited v Australian Competition and Consumer Commission [2010] FCAFC 111 cited
Ebney v Official Trustee in Bankruptcy (2000) 205 CLR 337 cited
Livesey v New South Wales Bar Association (1983) 151 CLR 288 applied
McCreed v The Queen (2003) A Crim R 417 cited
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 cited
Parramatta Design & Developments Pty Ltd v Concrete Pty Ltd (2005) 144 FCR 264 cited
Re JRL; ex parte CJL (1986) 161 CLR 342 cited, applied

Date of hearing: 9 May 2011

Place: Melbourne

Division: GENERAL

Category: Catchwords

Number of paragraphs: 13

Counsel for the Appellant: Mr P G Priest QC

Solicitor for the Appellant: Slater and Gordon

Counsel for the Respondent: Mr J L Bourke QC & Ms J M Maclean

Solicitor for the Respondent: Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 10 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
JOHN SETKA
Appellant

AND:
MURRAY GREGOR
Respondent

JUDGES:

LANDER, TRACEY AND YATES JJ

DATE:

12 MAY 2011

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
TRACEY J

There is, pending before the Court, the hearing of an appeal brought by Mr John Setka. He appeals against the imposition on him, by a Federal Magistrate, of a penalty of $6,000 for contravention of s 767 of the Workplace Relations Act 1996 (Cth) (“the Act”).
I am one of three judges of the Court whom the Chief Justice has determined should hear the appeal. The appeal is fixed for hearing on 12 May 2011.
By notice of motion dated 9 May 2011, Mr Setka sought an order that I disqualify myself from further hearing and determining the matter.
The Full Court heard argument on the motion on the afternoon of 9 May 2011. At the conclusion of argument I declined to rule on the motion but announced that I had come to the firm view that I should not withdraw from the bench which is to hear the appeal: see Cabcharge Australia Limited v Australian Competition and Consumer Commission [2010] FCAFC 111 at [12]; Parramatta Design & Developments Pty Ltd v Concrete Pty Ltd (2005) 144 FCR 264 at 275. I advised the parties that I would publish reasons for my decision at a later date. These are those reasons.
The application was made on the ground of apprehended bias. It was based on the fact that, on 24 May 2002, I examined Mr Setka before the Royal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Setka v Gregor

Details

AGLC: Setka v Gregor [2011] FCAFC 64
Case: [2011] FCAFC 64
Decision Date: 12 May 2011

CaseChat Overview and Summary

Setka v Gregor was a case involving the applicant, Setka, and the respondent, Gregor, who was a magistrate. Setka sought the recusal of Gregor from a proceeding due to an alleged apprehension of bias. The matter was heard in the Supreme Court of Victoria. The primary legal issue the court needed to address was whether Gregor's prior involvement in a case, in which he had made comments that could be seen as prejudgments of the current matter, gave rise to a reasonable apprehension of bias.

The court meticulously examined the test for recusal based on apprehended bias, which requires the court to consider if a fair-minded observer, having the same knowledge as the court, would apprehend bias. It was noted that Gregor had made comments in a previous case that could be perceived as prejudgments, but the court found that these comments did not constitute bias. The court concluded that a reasonable observer would not apprehend bias based on Gregor's previous comments. The court held that there was no basis for the apprehension of bias, and therefore, Gregor's recusal was not warranted. The application was dismissed.

Orders