Webb v GetSwift Limited (No 6)

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.