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 and that all that the applicant heard was my associate saying that the image or the hearing was frozen. The applicant noted, as was the case, that it took a further 20 minutes for the hearing to resume. The applicant was concerned that during this 20 minutes, he was not told anything and I understood him to apprehend that he may have missed part of the hearing during this time. The applicant submitted that when the hearing did eventually begin, I spoke almost exclusively, approximately 80 per cent of the time, with the respondent’s counsel, Mr McDougall, and that when the applicant was invited to make submissions, I spoke over the top of him.
The applicant was also critical of the decision that I made to “throw out” a document which the applicant explained included important content. The applicant submitted that this decision was unfair and done without going through the detail of the document. The applicant also made the submission that I had told him that certain witnesses were not permitted to attend, including especially witnesses who had been referred to in documents filed by the respondent.
The applicant told the Court that he had done some investigating and discovered that prior to my appointment to this Court, I had been a member of the Victorian Bar. The applicant submitted that because the respondent’s representative is also a member of the Victorian Bar, it was possible that we might know one another and that this would create a conflict of interest and a further basis why I might not be able to bring an impartial mind to the resolution of his case.
The respondent opposed the recusal application. Responding to the specific concerns identified by the applicant it was submitted that firstly, nothing occurred during the case management conference when the Court was offline for 20 minutes. Second, the decision of the Court not to allow the applicant to rely on his secondary set of submissions was neither odd nor surprising, but instead entirely orthodox, having regard to the nature of the document, which the respondent submitted contained claims that did not appear in the applicant’s amended statement of claim and made reference to numerous extraneous statutes, including those over which the Court has no jurisdiction.
Third, the fact that the respondent’s counsel is a barrister and member of the Victorian Bar and that I had previously been a barrister and a member of the Victorian Bar, was no reason for concern. It was said that the majority of judges have been barristers and therefore members of their local bar before their elevation.
THE CONTEXT OF THE APPLICATION
Here context is important. The applicant challenges orders that were made during a case management conference convened on 19 January 2023. The case management conference was called on at the request of both parties and in circumstances where a number of issues required ventilation ahead of the trial of the applicant’s application for remedies under the Fair Work Act 2009 (Cth), which was scheduled to commence today and to run for five days.
At the conclusion of the case management conference and after hearing submissions from both parties on the issues that had arisen, I made the following orders:
1.By 12pm on 23 January 2023, the respondent file and serve any application in a proceeding and written submissions addressing:
a.the claims contained in the applicant’s amended statement of claim which it seeks to have dismissed/stayed;
b. its application for witnesses to appear by video-link;
2.By 4pm on 25 January 2023, the applicant file and serve any responsive submissions as well as an outline of evidence of each of the subpoenaed witnesses, being:
a. Ms Amber Harding
b. Dr Francis Ghan
c. Mr Michael Salama
d. Mr Michael Young
3.By 4 pm on 25 January 2023, both parties file and serve any objections to affidavits.
The orders contained the following notations:
A.The applicant’s document titled “Further Extension of Precise Statutory Provisions and Pleadings combined”, filed 13 January 2023, is removed from the court file and cannot be relied upon by the applicant.
B.The applicant was reminded that he would not be permitted to raise matters or claims that were not identified in his amended statement of claim filed on 8 July 2021 at the trial of his application.
Principles
The test for determining whether a judge should disqualify themselves by reason of apprehended bias is set out in the decision of Johnson v Johnson (2000) 201 CLR 488. In Johnson, the majority, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, stated at [12] that the test is “based upon the need for public confidence in the administration of justice”. They went on to say:
If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision. The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment of some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial.
The test articulated in Johnson involves two steps, the first being an identification of the factor which it is said might lead the presiding judge to decide the case in a manner other than on its legal and factual merits and secondly an articulation of the logical connection between that factor and the feared deviation from the course of determining the case impartially on the merits.
As noted already in this case, the particular context in which this application is made reflects decisions made in the case of an interlocutory hearing convened to deal with issues related to the hearing of the applicant’s substantive claims for relief. The case management conference was convened with the primary objective of making sure that the proceeding was on track, including in circumstances where the applicant represents himself, and to introduce some efficiencies to the trial process.
In Doggett v Commonwealth Bank of Australia [2019] FCAFC 19, a Full Court constituted by Kerr, Davies and Thawley JJ observed at [11]:
Claims of apprehended bias arise not infrequently, as they have in this appeal, in respect of interlocutory proceedings. The usual position in relation to interlocutory proceedings is that an apprehension of bias is not per se manifested by an unfavourable finding. That is because often there will be instances prior to a final decision where a judge will require steps to be taken or not taken which disappoint one side or another in a proceeding. It is inherent in the interlocutory process that such preliminary decisions are made. Unfavourable findings, in such circumstances. are not to be taken by a fair-minded person as an expression that the judge has other than an impartial and unprejudiced mind in relation to the substantive proceeding…
As noted above, the applicant is especially concerned with the ruling that I made concerning his reliance on a document identified as “Further Extension of Precise Statutory Provisions and Pleadings combined”, filed 30 January 2023. The decision to rule out this document did not encroach on the merits of the applicant’s case as it was and had been articulated in his amended statement of claim filed on 8 July 2021. In this regard, I have made no finding of fact in relation to the substantive proceedings. Instead, it was a decision, procedural in nature, responsive to considerations of fairness and efficiency and the Court’s obligation contained in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), which identifies that Rules of Court or provisions made with respect to the practice and procedure of Division 2 of this Court, should be applied to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
The overarching purpose of proper case management includes the just determination of all proceedings before the Court, the efficient use of judicial and administrative resources of the Court, the efficient disposal of the Court’s overall caseload, the disposal of all proceedings in a timely manner and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
Without wishing to revisit the decision that was made on 19 January 2023 or to offer a retrospective justification for it, it must nonetheless be repeated that the supplementary submission document clearly contained a multitude of new claims that would have disproportionately blown out the applicant’s case and the trial timetable and denied the respondent an opportunity to respond adequately or at all to the issues which it identified prior to the trial which was scheduled at that time to commence in six business days.
I accept the respondent’s submission that the decision to rule out this document was orthodox and unobjectionable but more importantly betrayed no basis upon which a fair-minded lay observer, cognisant of the workings of this Court and its finite resources, might apprehend that I might not bring an impartial mind to the hearing and determination of the applicant’s substantive case for relief. The fair-minded lay observer is vested with an understanding that judicial officers are bound by rules of precedent and have statutory and ethical obligations to act in a fair-minded and balanced manner. Judges are to decide matters according to merit and justice and according to their oath. The hypothetical lay observer understands that judicial officers are, by their oath, bound to act with integrity and impartiality and that a member of the judiciary will by training and experience be able to disregard irrelevant, prejudicial or immaterial matters.
These last characteristics are sufficient to dispose of the applicant’s complaint that my past membership of the Victorian Bar creates a conflict of interest. By my training and experience, I maintain an open and impartial mind which is capable of being persuaded equally by the applicant and the respondent. There is also a pragmatic response which is to the effect that if a bias application could be upheld on the basis of past membership of a professional association, the pool of available judges would be rapidly depleted if not exhausted.
It is regrettable that the applicant felt that the case management hearing was one-sided, but I am confident that a transcript of the hearing would reveal that the applicant was offered the opportunity to respond to all issues of substance and that he was interrupted only when submissions were not directed at the topic at hand.
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.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 30 January 2022
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