FEDERAL COURT OF AUSTRALIA
Walker v Fedex Express Australia Pty Ltd [2024] FCA 1095
Appeal from: Walker v Fedex Express Australia Pty Ltd (No 2) [2023] FedCFamC2G 160 File number(s): VID 179 of 2023 Judgment of: COLLIER J Date of judgment: 19 September 2024 Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal – appeal of interlocutory decision of primary Judge to dismiss proceedings – failure to prosecute with due diligence – matter abandoned – applicant walked out of court – opportunity to provide written submissions objecting to summary dismissal provided by case management orders of primary Judge – discretionary decision of primary Judge – principle in House v The King – whether procedural unfairness in dismissal decision – litigant in person – whether email “suspending” matter constituted application for stay of proceedings – whether duty to inform applicant of potential to appeal or apply for stay enlivened – accusation of bias – earlier refusal of primary Judge to recuse herself for alleged bias – principle that judges should not abdicate judicial function by recusal at simple request of party – whether procedural unfairness because dismissal application determined on papers Legislation: Corporations Act 2001 (Cth)
Fair Work Act 2009 (Cth) ss 340, 342
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 192(4)
Federal Court of Australia Act 1976 (Cth) ss 24(1), 24(1A), 24(1AA)
National Anti-Corruption Commission Act 2022 (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth)
Work Health and Safety Act2011 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules2021 (Cth) rr 13.04, 13.05, 13.06
Occupational Health and Safety Act 2004 (Vic)
Wage Theft Act 2020 (Vic)
Cases cited: Aon Risk Services Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (200) 205 CLR 337
House v The King (1936) 55 CLR 499
International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49
Johnson v Johnson (2000) 201 CLR 488
Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
MacPherson v R (1981) 147 CLR 512
Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 244 CLR 427
Sanofi v Parke Davis Pty Ltd (1982) 149 CLR 147
South Australia v Totani [2010] HCA 39
Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; 280 FCR 479
Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45
Hot Wok Food Makers Pty Ltd v United Workers Union (No 3) [2024] FCAFC 51
Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 79
Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission [2022] FCAFC 161
Cubillo v Commonwealth of Australia [2001] FCA 1213
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- AGLC
- Walker v Fedex Express Australia Pty Ltd [2024] FCA 1095
- Case
- [2024] FCA 1095
- Decision Date
CaseChat Overview and Summary
The court found that the primary Judge's decision to dismiss the proceedings was not procedurally unfair. The court noted that Mr Walker had ample opportunity to provide written submissions objecting to the summary dismissal and that the dismissal application was determined on the papers. The court further found that the email sent by Mr Walker did not constitute an application for a stay of proceedings, and therefore, there was no duty on the part of the primary Judge to inform Mr Walker of the potential to appeal or apply for a stay. The court held that the principle in House v The King applied, which states that judges should not abdicate their judicial function by recusal at the simple request of a party. The court also noted that there was no reasonable apprehension of bias on the part of the primary Judge, as she had previously refused to recuse herself for alleged bias.
The court dismissed the Amended Notice of Appeal filed by Mr Walker on 2 October 2023. The court held that the primary Judge's decision to dismiss the proceedings was not procedurally unfair and that there was no obligation on the part of the primary Judge to inform Mr Walker of the potential to appeal or apply for a stay of proceedings. The court further found that the email sent by Mr Walker did not constitute an application for a stay of proceedings. The court held that the dismissal decision was made on the basis of the respondent's submissions, and Mr Walker did not make any submissions, which did not suggest bias or any denial of procedural fairness.
Orders
Orders of the court
1. The Amended Notice of Appeal filed on 2 October 2023 be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In respect of the appellant’s further written submissions, the respondent orally submitted: ·The bulk of the documents in the appeal book were filed documents. Many were opposed by the respondent for relevance and that opposition was maintained. ·What is relevant to the appeal proceedings is whether there was bias on the part of the primary Judge or a reasonable apprehension of bias. Also relevant is whether there was actual bias, failure to provide procedural fairness in relation to the adjournment, and other issues. ·Under s 342 of the Fair Work Act the dismissal of an employee by an employer is an adverse action. It is not the admission of a crime or any wrongdoing. ·There was no communication between the Counsel for the respondent and the Court in the 20 minutes in which the audio link was frozen on the case management hearing of 19 January 2023. Delays of that nature due to technical difficulties are not out of the ordinary in the conduct of Court. The primary Judge addressed the issue of the delay at the time and stated that the link was frozen for 20 minutes and nothing occurred during that time. This should be adequate factual response to the appellant’s concerns. There is nothing in the transcript of the facts that gives rise to any reasonable apprehension of any untoward communication having occurred during the 20-minute delay. ·There is nothing extraordinary in a concern about the ability to get through a large number of witnesses within the set hearing time. ·The respondent provided a trial plan as it was requested by the court. The appellant did not agree to the trial plan and the court was informed of this fact. The appellant has conceded that he did not read the trial plan as proposed by the respondent. ·A word count of comments of a party and the Judge at a hearing is not determinative of fairness or failure to hear a party. A fair reading of the transcript of the case management hearing of 19 January 2023 shows that the appellant spoke, was asked questions, and was given the opportunity to express his concerns and raise issues. ·Mr Walker has not satisfactorily explained how a reasonable apprehension of bias on the part of the primary Judge can be identified from her Honour’s reasons for refusing to recuse herself or grant an adjournment. The fact that the appellant was unhappy or dissatisfied with those decisions does not mean that the primary Judge was biased against him.·The “Further Extensions of Statutory Provisions and Pleadings Combined” document was not relevant as it referred to many issues and pieces of legislation which were not matters in the proceeding nor were they enlivened by the amended statement of claim of the appellant, and thus were not matters before the primary Judge. The decision to exclude that document as irrelevant and likely to be productive of a waste of time was appropriate, and not indicative of any actual or apprehended bias. ·The 7 February email may have informed the primary Judge that there was a complaint against her, but that does not give rise to a reasonable apprehension of bias, nor does the application for recusal. ·The ordinary understanding of the reasonable layman for the purpose of the test in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (200) 205 CLR 337 at [7] (Ebner) must include an understanding that judges have a certain level of robustness and they are not to be taken as becoming biased or prejudiced against a party merely because there is some level of dispute between the Judge and that party. ·Counsel often appears before a judiciary where there is a relationship of friendship, but it must be understood that that would not preclude a judge from hearing a matter and would not raise a reasonable lay person’s apprehension of bias. ·Many judges in Victoria, both at the federal and state level, were barristers before being appointed to the bench and necessarily would have relationships with members of the bar. There would not be any reasonable apprehension of bias simply because of that fact. ·Counsel for a party is an officer of the court and is representing, but not of, a party. Counsel has a certain independence of mind from the position of the party they represent. Therefore any relationship between the Judge and the counsel for a party could not reasonably be regarded as a basis for an apprehension of bias. ·The 7 February email does not go beyond an assertion that a complaint has been made. It does not in any sense enliven an obligation on the part of the court to give any information to the appellant. ·There is no right of appeal against a bare decision not to recuse: Stone v Moore [2015] SASC 46; 122 SASR 54; Bezer v Bassan [2017] NSWCA 333; Barakat v Goritsas [2012] NSWCA 8 as a response to Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 244 CLR 427. This right to seek leave to appeal from an interlocutory decision being a refusal to recuse is distinguished from any other interlocutory decision. ·Section 24(1AA) of the Federal Court Act specifically excludes a decision to adjourn or not to adjourn from the appellate jurisdiction of the Federal Court. ·There were no appeal rights to be contemplated so the only question is whether the order of the court made 1 February 2023 was indeed an order of the court and the 7 February email does not give rise to a need for the primary Judge to address that question. ·The appellant was not denied procedural fairness. He was heard at case management hearing of 19 January 2023 and on the interlocutory applications on 30 January 2023. There is nothing that gives rise to any reason to think that the appellant was excluded or precluded from being heard or from addressing the court on the issues that were of concern to him.·The primary Judge attempted to engage with the appellant after the adjournment application was refused, it is not a matter of the Court refusing to hear the appellant, it was the appellant who rejected his opportunity to be heard and was not heard because he walked out of the courtroom. There is no basis upon which a reasonable lay person would apprehend bias. ·The appellant complained of unfairness as he did not know when his subpoenaed witnesses would appear, but by virtue of his failure to provide an outline to the Court of what the witnesses were to say, per an order of the primary Judge, those witnesses were not to appear. ·The dismissal decision was made on the basis of the respondent’s submissions. The appellant did not make any submissions. This does not suggest bias or any denial of procedural fairness. CONSIDERATION