Toma v Fair Work Commission

Case [2023] FCA 1163

FEDERAL COURT OF AUSTRALIA

Toma v Fair Work Commission [2023] FCA 1163   

Appeal from: Toma v Fair Work Commission [2022] FCA 1261
File number: NSD 962 of 2022
Judgment of: BROMWICH J
Date of judgment: 29 September 2023
Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal from decision to refuse leave to pursue racial discrimination action against Fair Work Commission and summary judgment – where applicant alleges apprehended bias by primary judge due to previous associations while in practice – where applicant alleges actual bias by primary judge – where applicant alleges error of law for failure to find racial discrimination occurred – where applicant alleges breach of Australian Citizenship Act 2007 (Cth) through adverse comment on affidavit of Australian citizen – where applicant alleges lack of procedural fairness – Held: no arguable case on any proposed ground of appeal; application dismissed; respondent granted leave to apply for costs
Legislation:

Australian Citizenship Act 2007 (Cth)

Australian Human Rights Commission Act 1986 (Cth) s 46PO(3)

Fair Work Act 2009 (Cth) s 580

Cases cited:

Charisteas v Charisteas [2021] HCA 29; 273 CLR 289

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337

Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427

Mpinda v Fair Work Commission [2022] FCA 1111

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; 66 Fam LR 369; 409 ALR 65

Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020

Division: Fair Work Division
Registry: New South Wales
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 37
Date of hearing: 14 September 2023
Counsel for the Applicant: Applicant was self represented
Counsel for the Respondent: Mr T Boyle
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

NSD 962 of 2022
BETWEEN:

LOI TOMA

Applicant
AND:

FAIR WORK COMMISSION

Respondent

ORDER MADE BY:

BROMWICH J

DATE OF ORDER:

29 SEPTEMBER 2023

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The respondent be granted leave to make any application for costs by filing and serving any submissions on costs limited to 5 pages, together with any supporting affidavit evidence, within 14 days of the delivery of judgment, or such further time as may be allowed.

3.The applicant file and serve any submissions on costs limited to 5 pages, together with any supporting affidavit evidence, within 14 days of service upon him of submissions and affidavit evidence by the respondent, or such further time as may be allowed.

4.The respondent file and serve any submissions in reply within 7 days of service of submissions by the applicant, or such further time as may be allowed.

5.Any further time for compliance with orders 2, 3 or 4 may be sought by an email sent to nswreg@fedcourt.gov.au, marked for the attention of Justice Bromwich.

6.Any application for costs be determined on the papers unless the Court…

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Toma v Fair Work Commission [2023] FCA 1163
Case
[2023] FCA 1163
Decision Date

CaseChat Overview and Summary

The case of Toma v Fair Work Commission involved the applicant seeking leave to appeal a decision of the primary judge that refused to grant leave to pursue a racial discrimination action against the Fair Work Commission (FWC). The applicant, Toma, alleged various grounds for the appeal, including apprehended bias, actual bias, error of law, and procedural unfairness. The Federal Court was tasked with determining whether the applicant had established a basis for the grant of leave to appeal.

The court considered the applicant's allegations of apprehended bias due to the primary judge's previous associations, actual bias due to the rejection of the case, inconsistency with other cases, and bias in the conduct of the hearing. The court found that the applicant's claims lacked merit, as the primary judge's reasons demonstrated a careful and thorough approach. The court also noted that the rejection of the case alone did not establish actual bias. Furthermore, the court rejected the applicant's assertion of inconsistency with other cases and found no evidence of bias in the conduct of the hearing.

The court concluded that no arguable case had been established for the grant of leave to appeal on any of the proposed grounds. The court held that the application for leave to appeal should be dismissed, and the FWC was granted leave to apply for costs. The court ordered that any submissions and evidence on costs be limited to five pages and that the application for costs be determined on the papers unless an oral hearing was deemed necessary.

In summary, the court dismissed the application for leave to appeal and granted the FWC leave to apply for costs. The court found that the applicant had not established a basis for the grant of leave to appeal on any of the proposed grounds, and therefore, the application was dismissed.

Orders

Orders of the court

1. The application for leave to appeal be dismissed.

2. The respondent be granted leave to make any application for costs by filing and serving any submissions on costs limited to 5 pages, together with any supporting affidavit evidence, within 14 days of the delivery of judgment, or such further time as may be allowed.

3. The applicant file and serve any submissions on costs limited to 5 pages, together with any supporting affidavit evidence, within 14 days of service upon him of submissions and affidavit evidence by the respondent, or such further time as may be allowed.

4. The respondent file and serve any submissions in reply within 7 days of service of submissions by the applicant, or such further time as may be allowed.

5. Any further time for compliance with orders 2, 3 or 4 may be sought by an email sent to nswreg@fedcourt.gov.au, marked for the attention of Justice Bromwich.

6. Any application for costs be determined on the papers unless the Court considers it would be assisted by an oral hearing.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

It follows that this aspect advanced for the grant of leave to appeal has no serious prospect of succeeding, and to refuse leave to appeal upon this basis would not occasion any injustice.Actual bias by reason of deciding Mr Toma’s case adversely to him (including as to evidence) Mr Toma refers to the rejection of his case and the manner in which his evidence was dealt with as establishing actual bias, asserting that her Honour’s behaviour “confirms that her conflicts affected her judgment”. Such an allegation is extremely serious, and should never be made upon the basis of nothing more than a party’s case failing, which is all that is in substance proffered. It is an allegation that entails an adverse judgment about the state of mind of a judicial officer: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 at [33] (Gummow ACJ, Hayne, Crennan and Bell JJ). Such a conclusion is not reasonably open, given the careful and thorough approach disclosed by the primary judge’s reasons. A merely adverse result, which is all that remains, will not suffice. This aspect advanced for the grant of leave to appeal has no prospect whatsoever of succeeding, and to refuse leave to appeal upon this basis could not possibly occasion any injustice.Inconsistency with what had been decided in other cases by other judges Mr Toma in substance asserts that an inconsistency in the approach taken by other judges of this Court in relation to AHRC complaints indicates bias. No other decision is identified that could possibly support this contention, let alone a material difference in approach. But even if it had been, that would not be enough to impugn what the primary judge decided as a question of bias. Each case turns on its own evidence, facts as found, and circumstances. This aspect advanced for the grant of leave to appeal also has no prospect whatsoever of succeeding, and to refuse leave to appeal upon this basis could not possibly occasion any injustice.Bias in the conduct of the hearing before the primary judge Mr Toma complains about the primary judge permitting the FWC to rely on a bundle of authorities, submitting that this demonstrates bias of some kind. He suggests that the fact that her Honour considered a further decision delivered since the hearing and drawn to her attention by the FWC also establishes actual bias. That cannot be accepted. As to the bundle of authorities, the primary judge was doing no more than making a routine procedural decision of a kind routinely made by this Court. It needs to be remembered that, as is very common when a government agency or Department is a party against a litigant in person, as in this case, that individual and the Court are greatly assisted by the preparation of a court book and authorities by that agency or Department, as happened in this case for the hearing of Mr Toma’s claim. Nor was there anything wrong with the FWC drawing to her Honour’s attention Mpinda v Fair Work Commission [2022] FCA 1111, a case in part on the topic of statutory immunity. Her Honour heard from Mr Toma about that case by way of written submissions, and accepted his submissions about its limited relevance due to the different circumstances involved, but accepted what Feutrill J had said about the application of judicial immunity the FWC: see PJ[49]. There is nothing wrong with this, and certainly it is not any proper basis for asserting even apprehended bias, let alone actual bias.

Decision

Reasons for decision

No basis for the grant of leave to appeal on either of these bases, or taken together, has been identified, let alone established. There is no injustice in refusing leave to appeal in these circumstances.Conclusion As no basis for the grant of leave to appeal has been established, leave must be refused. The FWC seeks to be given an opportunity to be heard on costs. In all the circumstances I consider that this is appropriate, such that orders will be made for any submissions and evidence to be filed and served, and for Mr Toma to respond. Any such application will be decided on the papers unless a compelling reason is advanced by either side for a further hearing.

Ratio Decidendi

Legal Principle Established

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