Walker v Fedex Express Australia Pty Ltd - [2023] FedCFamC2G 56

Federal Circuit and Family Court of Australia
(DIVISION 2)
Walker v Fedex Express Australia Pty Ltd [2023] FedCFamC2G 56

File number(s): MLG 303 of 2021

Judgment of: JUDGE SYMONS

Date of judgment: 30 January 2023

Catchwords: PRACTICE AND PROCEDURE – Recusal application – apprehension of bias arising from conduct of and decisions made during case management conference - alleged conflict of interest based on former membership of Victorian Bar – application dismissed

Legislation:
Fair Work Act 2009 (Cth)

Federal Circuit and Family Court of Australia Act 2021 s 190

Cases cited:
Doggett v Commonwealth Bank of Australia [2019] FCAFC 19

Johnson v Johnson (No 3) [2000] 201 CLR 488; HCA 48

Division: Division 2 General Federal Law

Number of paragraphs: 21

Date of last submission/s: 30 January 2023

Date of hearing: 30 January 2023

Place: Melbourne

Applicant: In Person

Counsel for the Respondent: Mr J McDougall

Solicitor for the Respondent: In House Counsel
ORDERS

MLG 303 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
PETER WALKER

Applicant

AND:
FEDEX AUSTRALIA PTY LTD

Respondent

order made by:

JUDGE SYMONS

DATE OF ORDER:

30 JANUARY 2023

THE COURT ORDERS THAT:
1.The application in a proceeding lodged on 23 January 2023 and accepted for filing on 25 January 2023 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Revised from transcript)
JUDGE SYMONS:
INTRODUCTION

On 23 January 2023 the applicant, Mr Walker, lodged an application in a proceeding in which he sought an order that the trial of his application which had been set down for five days, beginning today, be postponed so that he could pursue a claim against me to the Chief Justice and because I had, according to Mr Walker, shown bias to the respondent. In his affidavit filed in support of this order, Mr Walker identified that the complaint lodged with the Chief Justice was, or would be, in relation to judicial conduct and victimisation. The application in a proceeding, which due to the matters raised I understood to involve an application that I recuse myself, was listed to be heard this morning.
The partIES’ submissions
The applicant was invited to make submissions in respect of his application in a proceeding. His complaints concerned the conduct of and decisions made by me as presiding and docket judge in the case management conference that was held on 19 January 2023. The applicant noted, as was the case, that he had joined the Teams hearing via audio only and that as soon as I was admitted to the hearing, all went silent…

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 Walker v Fedex Express Australia Pty Ltd

Details

AGLC: Walker v Fedex Express Australia Pty Ltd [2023] FedCFamC2G 56
Case: [2023] FedCFamC2G 56
Decision Date

CaseChat Overview and Summary

The case of Walker v Fedex Express Australia Pty Ltd involved the applicant, Mr. Walker, lodging an application against the respondent, Fedex Express Australia Pty Ltd. The dispute centered around the fairness of the proceedings and the potential need for the presiding judge to recuse themselves. Mr. Walker argued that there were circumstances that might lead a reasonable person to believe that the judge's impartiality was compromised. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue the court had to decide was whether the judge should recuse themselves from the case due to potential perceived bias. This required an examination of the events during the hearing and the judge's interactions with both parties and their counsel. The court needed to determine if the judge's conduct or comments during the proceedings were such that a fair-minded observer would have a reasonable apprehension of bias.

The court examined the conduct of the hearing, noting that there was no direct communication between the judge and the respondent's counsel that would suggest bias or partiality. It was highlighted that the judge's comments were in the context of the overall management of the case and did not specifically target or disadvantage the applicant. The court concluded that the hypothetical fair-minded lay observer, fully informed about the proceedings, would not reasonably apprehend that the judge was biased. Consequently, the application for the judge to recuse themselves was dismissed, and the proceedings continued as planned.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I can assure the applicant that while the hearing was paused for 20 minutes, he did not miss out on anything and that there was no communication in particular between the Bench and with counsel for the respondent. It is also the case that while I made observations about the forensic decisions made by the respondent to call particular witnesses that at no time was a formal ruling made that would preclude the applicant from making submissions or applications that further witnesses should be called.Conclusion In my view, the hypothetical fair-minded lay observer, properly apprised of the facts and circumstances of this proceeding, would not have a reasonable apprehension about my capacity to bring an impartial mind to the issues that the Court is to determine. For those reasons, I see no proper basis to recuse myself from further hearing the applicant’s application. The applicant’s application in a proceeding lodged on 23 January 2023 and accepted for filing on 25 January 2023 is dismissed.

Ratio Decidendi

Legal Principle Established

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File number(s):	MLG 303 of 2021
Judgment of:	JUDGE SYMONS
Date of judgment:	30 January 2023
Catchwords:	PRACTICE AND PROCEDURE – Recusal application – apprehension of bias arising from conduct of and decisions made during case management conference - alleged conflict of interest based on former membership of Victorian Bar – application dismissed
Legislation:	Fair Work Act 2009 (Cth) Federal Circuit and Family Court of Australia Act 2021 s 190
Cases cited:	Doggett v Commonwealth Bank of Australia [2019] FCAFC 19 Johnson v Johnson (No 3) [2000] 201 CLR 488; HCA 48
Division:	Division 2 General Federal Law
Number of paragraphs:	21
Date of last submission/s:	30 January 2023
Date of hearing:	30 January 2023
Place:	Melbourne
Applicant:	In Person
Counsel for the Respondent:	Mr J McDougall
Solicitor for the Respondent:	In House Counsel

MLG 303 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	PETER WALKER Applicant
AND:	FEDEX AUSTRALIA PTY LTD Respondent

order made by:	JUDGE SYMONS
DATE OF ORDER:	30 JANUARY 2023