Webb v GetSwift Limited (No 6)

Case [2020] FCA 1292

FEDERAL COURT OF AUSTRALIA

Webb v GetSwift Limited (No 6) [2020] FCA 1292  

File number: NSD 580 of 2018
Judgment of: LEE J
Date of judgment: 9 September 2020
Catchwords: COURTS AND JUDGES – principles of apprehended bias in the context of judge hearing a regulatory civil penalty proceeding and a Pt IVA class action consecutively – application for disqualification – brought for a second time after hearing of ASIC proceeding – factual issues in ASIC proceeding largely undisputed – no witnesses cross-examined as to credit – questions of law to be determined largely on the basis of contemporaneous documentary evidence – “core” bundle of documents common to both the ASIC proceeding and class action – not be required to be put out of mind for class action hearing – judgment in ASIC proceeding yet to be written or delivered – hypothetical observer would appreciate that any views formed at present are preliminary – no apparent issue as to application of the relevant standard of proof in the two proceedings – while a matter of “prudence” to disqualify in circumstances of uncertainty, not satisfied there are “substantial grounds” – broader public policy considerations as to the economies achieved by the same judge hearing a regulatory proceeding and the cognate class action – interlocutory application refused – leave to appeal granted
Legislation: Corporations Act 2001 (Cth) ss 674, 677
Evidence Act 1995 (Cth) s 140
Federal Court of Australia Act 1976 (Cth) Pt IVA
Cases cited:

Aurora Funds Management Limited v Australian Government Takeovers Panel [2020] FCA 496; (2020) 144 ACSR 593

Axon v Axon (1937) 59 CLR 395

Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225

Bolitho v Banksia Securities Limited (No 11) [2020] VSC 567

Briginshaw v Briginshaw (1938) 60 CLR 336

British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283

Commonwealth Bank of Australia v Jackson McDonald (a firm) [2014] WASC 301

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

Hamod v New South Wales [2011] NSWCA 374

Health Care Complaints Commission v Wallach [2004] NSWSC 927

Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

Jones v Dunkel (1959) 101 CLR 298

Kirby v Centro Properties Ltd (No 2) [2011] FCA 1144; (2011) 202 FCR 439

Lee v Cha [2008] NSWCA 13

Livesey v New South Wales Bar Association (1983) 151 CLR 288

McKenzie v Cash Converters International Ltd (No 3) [2019] FCA 10

Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507

Morley v Australian Securities and Investments Commission [2010] NSWCA 331; (2010) 274 ALR 205

R v Commonwealth Conciliation and Arbitration Commission (1969) 122 CLR 546

R v Watson; ex parte Armstrong (1976) 136 CLR 248

Webb v GetSwift Limited (No 5) [2019] FCA 1533

Wilson v Waigani Pty Ltd [2018] VSC 302

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Details
AGLC
Webb v GetSwift Limited (No 6) [2020] FCA 1292
Case
[2020] FCA 1292
Decision Date

CaseChat Overview and Summary

In Webb v GetSwift Limited (No 6), the matter was heard before the Federal Court of Australia, where the plaintiff sought to disqualify the judge who had presided over a regulatory civil penalty proceeding against GetSwift Limited. This application was brought after the conclusion of the regulatory proceeding, which largely involved undisputed factual issues and documentary evidence, with no witnesses cross-examined on credit. The plaintiff argued that the same judge should not hear the subsequent class action proceeding, given the overlap in issues and evidence. The central legal issues before the court were whether the judge's prior involvement in the regulatory proceeding could give rise to an apprehension of bias in the class action, and whether the economies of judicial resources justified the judge continuing to hear both matters.

The court considered whether a hypothetical observer might reasonably apprehend that the judge could not bring an impartial mind to the class action due to the prior involvement in the regulatory proceeding. The judge acknowledged that while it might be prudent to disqualify the judge to avoid any appearance of prejudgment, the court found no substantial grounds to conclude that the informed observer would reasonably apprehend bias. The judge noted that the regulatory proceeding had not yet been concluded in writing, and the preliminary views formed were not definitive, thus not prejudicing the outcome of the class action. The court also weighed the broader public policy considerations in favour of judicial efficiency and resource economy, concluding that these considerations outweighed the potential risk of bias. Consequently, the application for disqualification was dismissed, but leave to appeal was granted.

The court ordered that the application for the proceeding to be referred to the National Operations Registrar for reallocation be dismissed, and there was no order as to costs. Any party wishing to appeal the decision had leave to appeal in accordance with s 24(1A) of the Federal Court of Australia Act 1976 (Cth), subject to the filing of a notice of appeal by a specified date. The entry of orders was governed by Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application for an order that this proceeding be referred to the National Operations Registrar for reallocation to a judge in the Commercial and Corporations National Practice Area be dismissed.

2. There be no order as to costs.

3. Any party wishing to appeal Order 1 have leave to appeal in accordance with s 24(1A) of the Federal Court of Australia Act 1976 (Cth), subject to the filing of a notice of appeal by 23 September 2020.

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

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Decision

Reasons for decision

The list of knowledge to be attributed to the hypothetical observer could go on, but the above seems to me, on the basis of the submissions put, to be the most important in assessing whether apprehended bias exists.E ASSESSMENT AND CONCLUSIONS Correctly, GetSwift points to my observations in Webb (No 5) (at [26]), where I noted that “it is appropriate to proceed on the basis that it will create some challenge for a trial judge to sit sphinx-like through the ASIC proceeding and form no preliminary views as to the likely factual findings that will be made. It is a tad unrealistic to expect that a judge would approach the class action entirely tabula rasa”. But this is different from concluding that the properly informed relevant observer might reasonably apprehend that the judge might not bring an impartial mind to the determination of the controversy in the class action because of the existence of the particular extraneous information identified given the circumstances of this case. Or to put it another way, it is different from the reasonable observer possibly apprehending “the court might not move its mind from the position reached on one set of materials even if different materials were presented at the trial” (using the language of Laurie (at 333 [145] per Heydon, Kiefel and Bell JJ)). Of course, the fact that no findings have been expressed in a written judgment is far from determinative, but it is surely relevant to the formation of a hypothetical observer’s reasonable view at the present time that no definitive conclusions have been reached. I accept that it must be borne firmly in mind, using the language of Ebner (at 345 [7] per Gleeson CJ, McHugh, Gummow and Hayne JJ), that the present inquiry does not involve any prediction about how I in fact will approach the determination of the overlapping issues; but it is also necessary to bear in mind the rule is directed to an apprehension of possible prejudgment. As Gleeson CJ and Gummow J noted in Jia Legeng (at 531–2 [71]–[72]):Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion…... Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. Mr Macdonald is correct to submit that the present application “largely depends on” (but I would interpolate, is not wholly dependent upon) the reasonable observer’s understanding of the extent of the “ability of a judge to discard the irrelevant, the immaterial and the prejudicial”. However, given the relevant factual and legal context explained above, I do not consider that a reasonable hypothetical observer, knowing all the circumstances of the case (including, to the extent it could be comprehended by a lay observer, the issues, the nature of the evidence and the extraneous material identified) might reasonably apprehend that the judge might not bring an impartial mind to the determination of the controversy in the class action.

Ratio Decidendi

Legal Principle Established

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