Yu v ACT Education Directorate
[2018] FCCA 2835
•1 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| YU v ACT EDUCATION DIRECTORATE | [2018] FCCA 2835 |
| Catchwords: INDUSTRIAL LAW – The Applicant is a self-represented litigant who seeks relief under the Fair Work Act in her primary Application that arises out of her dismissal by the Respondent as a teacher – recusal application based on alleged but mis-quoted comments by the presiding Judge during the trial – delay of approximately three months after conclusion of part-heard trial in bringing the recusal Application – factually and legally there is no basis for any of the grounds claimed by the self-represented Application – costs of the Respondent reserved. |
| Cases cited: Antoun v The Queen (2006) ALJR 497; (2006) 224 ALR 51 British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 Smits v Roach (2006) 227 CLR 423 |
| Applicant: | JING YU |
| Respondent: | ACT EDUCATION DIRECTORATE |
| File Number: | CAG 86 of 2016 |
| Judgment of: | Judge Neville |
| Hearing date: | Written submissions |
| Date of Last Submission: | 3 July 2018 |
| Delivered at: | Canberra |
| Delivered on: | 1 November 2018 |
REPRESENTATION
| Counsel for the Applicant: |
| Solicitors for the Applicant: | Self-represented |
| Counsel for the Respondent: | Ms Bindon |
| Solicitors for the Respondent: | ACT Government Solicitor |
ORDERS
The Applicant’s Application for recusal and transfer to the Federal Court, filed 25th May 2018, be dismissed.
The Respondent’s costs be reserved.
The balance of the part-heard Hearing remains listed for a further 1 ½ days, commencing at 2:15pm on 12 March 2019 in CANBERRA.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 86 of 2016
| JING YU |
Applicant
And
| ACT EDUCATION DIRECTORATE |
Respondent
REASONS FOR JUDGMENT
Introduction
The self-represented Applicant, Ms Yu, is a teacher. She commenced proceedings in this Court seeking redress under the Fair Work Act 2009 following the termination of her employment by the Respondent by letter dated 17th August 2016.
The matter is currently part-heard following two days of hearing in March of this year. Because of listing difficulties, including Court availability, and the availability of a critical witness for the Respondent, a further date to complete the trial is listed for March next year.
On 25th May 2018, the Applicant filed an Application in a Case, pursuant to which she seeks that I recuse myself (the description used by the Applicant is “disqualify”). As set out in par.6 of her submissions, filed 3rd July 2018, the grounds for recusal are:
(a)not abiding by or complying with the judicial oath of office because (it is said) that I [allegedly] “bear ill-will towards the Applicant and give favour to the Respondent (“or does not do right to all manner of people according to law”);
(b)I [allegedly] “banged the Bench” during the trial, demanded immediately a document from the Applicant, and allegedly forbade the Applicant from referring to notes during her cross-examination;
(c)I [allegedly] permitted, “without good cause”, the Respondent to cross-examine the Applicant “for 2 days”;
(d)I made procedural Orders in Chambers to re-allocate a further hearing date in the light of the availability of a witness for the Respondent; and
(e)I [allegedly] “show little or no desire to have the matter decided; because he chose to adjourn the part heard matter, even though there are several other options available before him and the Respondent.” As far as I can see, the Applicant does not explain what these “other options” are. Because there are no relevant particulars, and because of the generality, of this part or ground of the claim, I have no idea what is actually being asserted here. Accordingly, I will have no regard to it.
The Applicant also seeks that the matter be transferred to the Federal Court of Australia.
The Respondent opposes both Applications.
For the reasons that follow, the recusal Application must be dismissed. The transfer Application must also be refused. The Respondent seeks costs. I reserve costs.
The Applicant’s Evidence
In her Affidavit, filed 25th May 2018, the Applicant deposed as follows. Because of its relative brevity, it is as well to set it out in full, thus (annexures are not included here; emphasis in original):
I, Jing Yu of 8 Attunga St, Ngunnawal, ACT, make oath and say:
1) After 25 years of dedicated service with ACT Education, I was dismissed. My livelihood has been cruelly taken away ever since.
2) I made an application under the Fair Work Act 2009(the FW Act)to the Court on 18 November 2016, seeking justice and relief.
3) There are 25 alleged breaches under the Fair Work Act 2009.
4) It appears that in handling of the matter, the judicial conduct of the presiding Judge Neville has not been impattial. I have listed a few incidences to assist His Honour to make a decision on whether he should disqualify himself from the proceedings.
Incidents
5) After the first day of the Final Hearing on 22 March 2018, Ms Helen Banks, the solicitor for the Respondent rang me and offered $20K to settle the matter. I did not accept the offer.
6) The next day on 23 March 2018, at the hearing, Ms Bindon, the Counsel for the Respondent, reported to Judge Neville that I did not accept the offer. Then His Honour and I had a conversation to the following effect:
HH: “You didn’t write the amount of compensation and penalty in your claim form.”
JY: “I thought it could be done after the liability judgement.”
HH: “I need it now!!!” (His Honour banged the bench and said loudly)
JY: “I think the past and future loss depends on the judgement day, your Honour.”
HH: “Don’t tell me what to do!!” His Honour said with anger.
JY: “The penalty may also depend on the liability judgement….”
HH: “Don’t tell me what to do!!!” His Honour was more loud and angry.
7) Then I was directed to the witness box to be cross-examined. I took written notes with me. His Honour and I had a conversation to the following effect:
HH: “What is in your hand?”
JY: “Notes that I can refer to.”
HH: “Leave notes back on bar table!” His Honour ordered me, in a stern voice.
I put the notes back on bar table.
8) I felt very distressed by His Honour’s decision and by the manner he spoke to me.
9) On the other hand, Ms Bindon, the Counsel for the Respondent, was treated entirely differently by His Honour. For example:
(a) His Honour always used a gentle and pleasant tone when he spoke to her.
(b) His Honour let Ms Bindon use 2 full days to cross-examine me (22 and 23 March 2018), instead of 2 hours as pre-arranged by the parties. Annexure A is a copy of the agreed schedule.
(c) His Honour did not intervene in Ms Bindon’s undue questioning, till the end of the scheduled hearing, by saying “we’ve come full circle.” Then Ms Bindon said: “no further questions.”
10) The matter was thus partially heard and His Honour subsequently ordered that the hearing be listed for a further day on 4 October 2018. Meaning that the conclusion of the matter would be delayed for more than 6 months. This delay will have a significant impact on my financial, emotional and general well-being. Annexure B is a copy of the Court Order dated 23 March 2018.
11) A month later, on 23 April 2018, Ms Banks, the solicitor for the Respondent, emailed the Associate Judge Neville advising:
“the Respondent’s key witness in this matter, Mr Dougal Whitton, is expected to be overseas from the period 7 September 2018 until 5 November 2018. Accordingly the respondent respectfully requests if the hearing date could be rescheduled to November (or late) to enable Mr Whitton to appear in person.”
Annexure C is a copy of email from Ms Banks to Associate dated 23 April 2018.
12) The above email was sent without my knowledge and consent.
13) Ms Banks subsequently rang me advising that she had sent an email to the Associate requesting to postpone the hearing. I did not give consent for this request as I could not see any reasonable grounds. Then Ms Banks said words to this effect: “Anyway, I’ll send you an email to seek your consent, you can respond to it.” I said: “Okay. I’ll read your email and then get back to you.”
14) I did not receive Ms Bank’s email seeking consent; as she proposed. However, I received an email from the Associate Judge Neville advising that “the matter will remain part heard, and be listed for a further I day, on dates and times to be advised by the Court in 2019 upon settlement of the 2019 calendar.” Annexure D is a copy of the email dated 23 April 2018.
15) It seems that Ms Banks and His honour (via the Associate) have had further discussions about the matter without my knowledge and consent.
16) From the evidence above I have concluded that:
(a) His Honour permitted the Respondent’s legal representative not to observe the rules stated in Communicating with Judges’ Chambers-Notice to Litigants and Legal Practitioners.
(b) His Honour (via his Associate) communicated with the Respondent in the absence of, and without the consent or approval of the Applicant.
(c) The matter was adjourned according to the Respondent’s wishes and in the absence of reasonable grounds and evidence.
(d) His Honour did not comply with the statutory procedures to provide the Applicant with procedure fairness, that is, His Honour did not provide me with an opportunity to express my wishes and views before the matter was adjourned Sine Die.
Submissions by the Applicant
The Applicant filed an Application in a Case on 25th May 2018, in which she sought the following Orders:
1) His Honour Judge Neville disqualifies himself from the proceedings CAG86/2016.
2) The Court transfers the matters (CAG86/2016) to the Federal Court of Australia.
Following the Court’s Orders of 12th June 2018, directing the parties to file submissions in relation to the Application in a Case, the Applicant filed the following submissions on 3rd July 2018 (emphasis in original):
1) The Applicant filed an Application on 25 May 2018, seeking that Judge Neville recuse himself from the proceeding, and that the matter be transferred to the Federal Court.
2) The supporting evidence for the Application is stated in the Affidavit filed on 25 May 2018 (Affidavit Yu).
Issues
3) A Judge who does not comply with the judicial vow should recuse himself from the case. In this proceeding, did Judge Neville comply with his judicial vow?
4) Shall the matter be transferred to the Federal Court?
Facts and Reasons for Recusal
5) Judge Neville's judicial vow includes the following:
I will well and truly serve in the office of Judge of the Federal Circuit Court of Australia, and that I will do right to all manner of people according to law, without fear or favour, affection or ill-will.
6) The following evidence will establish that, in the course of proceedings, Judge Neville bears ill-will towards the Applicant and gives favour to the Respondent, or he does not do right to all manner of people according to law:
a) Without authority to do so, His Honour banged the bench and shouted at the Applicant in the courtroom (see Affidavit Yu at [6]}.
b) Without authority to do so, His Honour demanded a document from the Applicant immediately (see Affidavit Yu at [6]}.
c) His Honour forbade the Applicant to give explanations by making inappropriate comments with anger (see Affidavit Yu at [6]).
d) His Honour forbade the Applicant to refer to a note in the cross-examination. (see Affidavit Yu at [7]).
e) His Honour's conduct outlined at [6a]-[6d] above were intimidating and aggressive, which has been causing fear and anxiety to the Applicant.
f) Without good cause, His Honour let the Respondent's counsel cross-exam the Applicant for 2 days, even though there is no serious dispute between the parties in terms of the facts (see Affidavit Yu at [9][10] and Affidavits filed by both parties prior to the hearing).
g) On 23 April 2018, His Honour made a decision to set aside the Court's order of 23 March 2018, and postponed the hearing. The decision was made upon receiving an email request from the Respondent (see Affidavit Yu at [11],[12]& [14]}. Under the circumstance, His Honour may have no authority to make the decision.
h) Even if His Honour does have such authority, his decision was not made with impartiality or in good faith, because:
1) His Honour promptly granted the Respondent's request; even though he was aware that the Respondent had not followed the proper legal procedures.
11) Timely justice is important to the Court; thus the Court grants an adjournment only in exceptional circumstances. The reason that a witness "is expected to be overseas" {Affidavit Yu p.10), cannot be considered as an exceptional circumstance
111) The fact that "The Court calendar cannot accommodate a movement of the date within the 2018 calendar." (Affidavit Yu p.12), should be a good reason for His Honour to deny the adjournment.
1v) His Honour also shows little or no desire to have the matter decided; because he chose to adjourn the part heard matter, even though there are several other options available before him and the Respondent.
i) His Honour failed to give a fair hearing to the Applicant (see Affidavit Yu at [16dl).
On 2nd October 2018, without any leave of the Court, the Applicant filed further written submissions regarding her Application in a Case. Apart from the fact that (a) there is no Order pursuant to which these additional submissions were filed, and (b) there is no evidence that the Applicant has served them on the Respondent, in my view, by and large, they essentially repeat what was in her original submissions. I will note the following matters from those submissions briefly.
First, the Applicant sought to “delete” the matters raised at par.6f of her original submissions because, in her view, “this point may not be a strong one to support her Application.
Secondly, like the original submissions, these additional submissions were predicated upon what the Applicant alleged was the “unlawful and oppressive conduct of the presiding judge…” She then outlined, at par.2a – d, and pars.3, 4, and 6 matters already set out in her material to which I have already referred.
Thirdly, at par.5, the Applicant quoted a definition of “bullying” taken, she said, from the Australian Human Rights Commission website (she provided the “link” to this definition).
Fourthly, at par.7, the Applicant contended that I had acknowledged the “complexity” of the matter, which thereby warranted it being transferred to the Federal Court of Australia. I simply observe that, at times during the hearing, I endeavoured to point out to the Applicant that it would be beneficial to her, as a self-represented litigant, and because she was dealing with “complex legislation”, to seek legal assistance with her claim. She rather seems to have equated a reference to “complex legislation” when speaking to her as outlined to the litigation more generally being “complex”. I observe further that the matter is made somewhat more difficult (not necessarily “complex”) precisely because of the Applicant’s regularly less than clear explanation of her claims and the, perhaps understandably, more prolix and regularly imprecise documentation she has filed.
The Respondent has not sought any right of reply to these additional submissions. In my view, it would be unnecessary to do so.
Submissions on behalf of the Respondent
The Respondent filed written submissions on 3rd July 2018, thus:
1) The Respondent provides these submissions pursuant to order (2) of the orders made by Judge Neville on 12 June 2018 by way of response to the Applicant’s Application in a Case dated 25 May 2018 (Recusal Application).
2) For the reasons which follow, the Respondent submits that the Recusal Application ought to be dismissed with costs.
Recusal
3) The High Court has articulated the test for apprehension of bias in several decisions, including most recently Michael Wilson & Partners Limited v Nicholls. It involves asking whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”.
4) That involves a two-step inquiry:
a) “the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits”; and
b) “an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits”.
5) It is important that judges should not accede too readily to applications for disqualification, they should resist being driven from their courts by the assertions of parties, and the expression of their preliminary views with vigour should not necessitate their disqualification.
First step
6) As to the first step, the Applicant appears to identify the following incidents as the relevant ones:
a) Monetary relief question: Judge Neville speaking with ‘anger’ and in a ‘loud and angry’ voice to the Applicant after the Applicant had declined to answer His Honour’s question as to the amount of monetary relief she was seeking in the proceedings and informing His Honour that she would only provide that information after liability had been determined;
b) Direction about notes: Judge Neville telling the Applicant in a stern voice that she may not take her notes into the witness box;
c) Length of cross-examination: Counsel for the Respondent being permitted to cross-examine the Applicant for the two days of hearing on 22 and 23 March 2018 contrary to her prior estimate of two hours;
d) Hearing date adjustment: Judge Neville vacating the further hearing date of 4 October 2018 and informing the parties that the matter would be set down for a further day of hearing on dates and times in 2019 to be advised by the Court, thereby:
i) responding to the email from the Respondent’s solicitor of 23 April 2018 (copying the Applicant but sent without her prior knowledge or consent) requesting an alternative date on the basis that the primary witness for the Respondent, Mr Dougal Whitton, would be overseas on 4 October 2018;
ii) permitting the Respondent’s solicitor to breach the Communicating with Judges’ Chambers – Notice to Litigants and Legal Practitioners.
Second step
7) As to the second step, the Applicant has not attempted, either in her Recusal Application or her affidavit in support, to articulate any logical connection between the incidents identified above and any prospect of His Honour deviating from the course of deciding the case on its merits. Indeed, the incidents are all identified out of their context and presented as though they speak for themselves. This is wholly inadequate to satisfy the second step.
8) In relation to the monetary relief question, the question posed by His Honour was necessary because the Applicant had failed to disclose on her Amended Application dated 3 April 2017 any details of the monetary relief she sought.
9) The question also flowed naturally from the discussion that had arisen between His Honour, counsel for the Respondent and the Applicant at the conclusion of the hearing on the previous day. In brief terms, that discussion involved His Honour:
a) expressing a tentative observation, having heard aspects of the Applicant’s evidence under cross-examination, as to a factual finding that was potentially in favour of the Applicant;
b) then enquiring, in light of that tentative observation, as to the Respondent’s position on the possibility of engaging in discussions to attempt to settle the matter through mediation;
c) then explaining to the Applicant the value in engaging in discussions to attempt to settle the matter through mediation, particularly as she may not be aware of the unpredictability of monetary awards in this particular jurisdiction even if she were successful. His Honour said:
But could I suggest that, given that we’re dealing with – and you know this – we’re dealing with a very complex piece of legislation. And there are also a significant number of cases, some of which have been handed up, and, I think, made available to you, in which there can be a fairly significant range – if we just speak very bluntly, in dollar terms – there can be a very significant range, from low, middle to high …
[Y]ou may have an expectation that if you succeed on one or more of the claims, that you might be entitled to X amount of dollars, just to speak in those general terms, but that might be a completely unrealistic view of, in the very best case scenario, that the court might ultimately award you …
10) When the Applicant indicated an unwillingness to provide that detail (detail which she was in any event supposed to have disclosed on her Amended Application) the mere fact that His Honour responded sternly or angrily indicates nothing more than the approbation expected from a court towards a litigant refusing to comply with a court’s reasonable request. It should be remembered that the ‘fair-minded lay observer’, as Kirby J described in Johnson v Johnson:
… would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context.
11) In the Respondent’s submission, the same conclusion must apply in respect of His Honour’s direction about notes. It is worth noting that on the previous day His Honour had already pointed out to the Applicant three times when she first entered the witness box that she must not to take any notes with her.
12) As to the length of cross-examination, the Respondent makes the following points:
a) The parties’ respective estimates of cross-examination can only ever be estimates. They are not inflexible limits on the parties’ ability to conduct their respective cases.
b) An examination of the transcript reveals the Applicant’s tendency not to directly answer questions put to her, to provide tangential responses necessitating that questions be repeated, or to refuse to make basic concessions. That this was tolerated by counsel for the Respondent and His Honour was appropriate given that the Applicant is a self-represented non-lawyer and therefore at a relative disadvantage in the conduct of her case. In other words, it was acknowledged that the Applicant should be given some leeway in her answers and this was for her benefit rather than disadvantage.
c) In any event, it was for His Honour alone to decide how to manage the hearing, and provided the parties were given a fair opportunity to present their cases, there is no basis for any allegation of error (remembering the matter is only part-heard). The Applicant has not pointed to any way in which the cross-examination has so far prevented her from having an opportunity to present her case.
d) The Applicant had filed three affidavits in the proceedings (totalling 197 paragraphs, 49 annexures and 1 exhibit) making a multitude of allegations against a range of the Respondent’s employees. The Respondent was entitled to test those allegations through cross-examination, noting that the Applicant is the only witness in her case.
e) It is erroneous to suggest that counsel for the Respondent spent “2 full days to cross examine” the Applicant. On the first day of the hearing, the total time counsel for the Respondent spent cross-examining the Applicant was under 2 hours. The second day of the hearing started late due to the ceremonial sitting for Justice Penfold in the ACT Supreme Court.
13) On the hearing date adjustment, the Respondent makes the following points:
a) Ms Banks’ affidavit clearly explains the course of events and demonstrates that nothing improper was involved in the series of communications to His Honour’s chambers. In particular there is absolutely no evidence that Ms Banks and His Honour’s chambers “had further discussions about the matter without my knowledge and consent” as alleged by the Applicant at [15] of her affidavit.
b) While it is appropriate for parties or their solicitors to confer prior to sending any communication to a judge’s chambers, it is not the case that Ms Banks had to have the “consent” of the Applicant in order to alert His Honour’s chambers to a difficulty with the Respondent’s key witness. It is not suggested that the Applicant was not included in any of the email communications which took place.
c) His Honour’s reasons for adjusting the hearing date are plainly stated in the email from his chambers on 23 April 2018, namely that as “Mr Whitton is a primary witness, it is not appropriate for him to be contacted for evidence via video-link. Further, the Court’s calendar cannot accommodate a movement of the date within the 2018 calendar”. Self-evidently, that is a day-to-day decision squarely within His Honour’s case management discretion and entirely unremarkable.
14) In the Respondent’s submission, nothing suggestive of the prospect that His Honour might not bring an impartial mind to the resolution of the issues in the present case can be inferred from any of the incidents put forward by the Applicant, much less any sort of logical connection in that regard. The incidents, seen in context, were all unremarkable events in the conduct of proceedings in this Court. Moreover, to the extent that His Honour expressed any tentative views on findings during the two days of hearing, they were favourable to the Applicant.
15) The Respondent respectfully submits that the Applicant has failed to establish the elements necessary to make out the test for apprehension of bias and the Recusal Application ought to be dismissed.
Transfer
16) In the Recusal Application, the Applicant also seeks that the proceedings be transferred to the Federal Court. The Respondent opposes that application.
17) The decision to transfer of proceedings from the Federal Circuit Court to the Federal Court is a discretionary decision governed by the factors in s 39 of the Federal Circuit Court of Australia Act 1999 and rule 8.02 of the Federal Circuit Court Rules 2001. The Respondent briefly addresses those factors below.
18) Question of general importance involved on which superior court decision is desirable – r 8.02(4)(a): there is no question of general importance raised by these proceedings.
19) If likely to be heard and determined at less cost and more convenience if transferred – r 8.02(4)(b): given that the matter is already part-heard, it is very likely that a transfer of proceedings to the Federal Court would result in increased cost and less convenience than if they remained in this Court. The hearing fee is obviously higher in the Federal Court. The ability to have less formality in procedure in this Court is obviously of greater benefit to a self-represented litigant such as the Applicant.
20) Whether likely to be heard earlier in this Court r 8.02(4)(c): This Court has already identified an available date in March 2019. There is no guarantee that any earlier date could be obtained in the Federal Court.
21) Particular procedures available that are appropriate for the class of proceeding – r 8.02(4)(d): Given the concurrent jurisdiction of this Court and the Federal Court in matters under the Fair Work Act 2009 (FW Act), this factor is neutral.
22) Wishes of the parties - r 8.02(4)(e): The Respondent wishes for the proceedings to remain in this Court.
23) Whether the resources of this Court are sufficient to hear and determine the proceedings- s s39(3)(c): While the proceedings involve some degree of complexity, this does not render the matter inappropriate for hearing and determination by this Court. Moreover, many of the complexities may arise from the fact that the Applicant’s articulation of the claim may be less clear then if a lawyer prepared it. This Court can resolve those issues just as readily as the Federal Court can do.
24) Interests of the administration of justice - s 39(3)(d): The proceedings are part-heard and this Court has intensively managed the proceedings to date. It is not in the interests of justice for the proceedings to be transferred to the Federal Court in these circumstances.
Costs
25) The Respondent submits that prior to the amendment of s 570 of the FW Act on 1 January 2013, it may have been likely that a recusal application of the kind currently before the Court would not have involved the court “exercising jurisdiction” under the FW Act and therefore would not have been captured by the costs limitation in s 570(1).
26) As currently phrased, s 570 operates on “proceedings … in a court … in relation to a matter arising under this Act”. The Respondent acknowledges that this phrase has been interpreted as “pointing to a broader reach for the limitation on a court’s power to award costs” and probably applies to the Recusal Application given that these proceedings are nonetheless “proceedings … in a court … in relation to a matter arising under” the FW Act.
27)Nonetheless, the Respondent submits that a costs order in its favour is warranted by reason of the Recusal Application constituting an unreasonable act of the Applicant pursuant to s 570(2). In this regard the Applicant reiterates the points made above as to the Applicant having extracted the incidents out of context without (at least on the face of the Recusal Application) clear consideration for how those incidents are said to logically connect to a feared deviation by His Honour from the course of deciding the case on its merits.
Outline of Principle – Apprehended Bias
Unfortunately, but in many ways understandably, the Applicant provided no reference to any case that supported either her grounds for recusal or for her submissions in support. In the absence of relevant detail or particulars, I have taken her Application as one predicated upon apprehended, rather than actual, bias. As summarily as possible, I note the following principles drawn from the authorities.
A convenient starting point for the consideration of principle is Kirby J’s comments in Antoun v The Queen, where his Honour also referred to Mason J’s regularly cited caution in Re JRL; Ex parte CJL against acceding too readily or too quickly to applications for disqualification. At [34], Kirby J said (internal citations omitted):[1]
It is true that, in the oft-repeated and oft-applied words of Mason J in Re JRL; Ex parte CJL, this court has “loudly and clearly” expressed a corrective against any view that a judge should too readily accept recusal because a party has demanded it. In the administration of justice in Australia, the parties do not (at least normally) have an entitlement to choose among the judicial officers who will conduct the trial. This principle has been reasserted and applied in many cases.
[1] Antoun v The Queen (2006) ALJR 497; (2006) 224 ALR 51. Re JRL; Ex parte CJL (1986) 161 CLR 342 at p.352. French CJ’s judgment in British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 at [1] begins with Mason J’s important admonition in Re JRL. His Honour dissented, as did Gummow J, in the result.
Kirby J also said in Antoun v The Queen, at [32] (internal citations omitted):[2]
In this, the approach of this Court has now travelled beyond the apparent approbation of judicial silence expressed in R v Watson; Ex parte Armstrong. In the United States of America, such silence has been held, on occasion, to constitute a denial of due process. It deprives the party who will ultimately be affected by judicial conclusions of the “opportunity, before judgment, to be heard to correct and to persuade.” Just as the judge should, to a proper extent, listen, so the judge should, to a proper extent, express any tentative views.
[2] Antoun v The Queen (2006) 224 ALR 51. See too the earlier comments of the High Court in Vakauta v Kelly (1989) 167 CLR 568 at p.571, where Brennan, Deane & Gaudron JJ said: “[A] trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated.”
Similar views to those expressed by Kirby J in Antoun were also expressed in the plurality judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson.[3]
[3] Johnson v Johnson (2000) 201 CLR 488 at [13]. The plurality’s comments in Johnson on the attributes of the relevant bystander were set out in full in French CJ’s dissenting judgment in British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 at [46], and in the judgment of the majority (Heydon, Kiefel & Bell JJ) at [132].
Also in Johnson v Johnson, Kirby J noted in particular, at [46] (internal citations omitted):
Whatever may have been the tradition in earlier times, opinions favouring silence on the part of an adjudicator during a hearing (which is the surest means of avoiding most allegations of prejudgment) are now seen as carrying risks of an even greater injustice. Unless the adjudicator exposes the trend of his or her thinking, a party may be effectively denied justice because that party does not adduce evidence or present argument that could have settled the adjudicator's undisclosed concerns. A frank dialogue will commonly be conducive to the avoidance of oversight and the repair of misapprehensions. Uninformed members of the public are doubtless sometimes surprised by the robust exchanges which take place in court, especially between a judge and experienced lawyers. But judges and other adjudicators and lawyers know that such dialogue can have great value.
Changes that have come about in the administration of justice, including the increase in the number of trials by single judges, have also required, to some extent, an adjustment to the rules of reticence in judicial observations that may still be appropriate where trials, criminal or civil, are conducted before a jury. One of the reasons for such changes has been the desire to increase the efficient management of the trial process. Yet it is in that context that the expressions of preliminary and tentative views may sometimes appear to an outsider to indicate prejudgment. Although some adjudicators may be hard to shift from tentative opinions, lawyers know that, in most judicial decision-making, the process is a continuous one. Preliminary inclinations do change.
And further, in Johnson v Johnson Kirby J outlined the expected characteristics of the “reasonable bystander” (accepting that his Honour referred to a character or persona known as “the fictitious bystander”). At [53], Kirby J said (internal citations omitted; emphasis added):[4]
The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.
[4] Johnson v Johnson (2000) 201 CLR 488. Kirby J’s comments, at [53] in Johnson to which I have referred concerning “the bystander”, were considered further in Smits v Roach (2006) 227 CLR 423 at [95] – [97]. Concerning Kirby J’s reference in Johnson to the “fictitious bystander”, I note that the plurality in Johnson, at [13], referred to “the fictional observer.” Certainly, since the High Court decision in Ebner, the test has referred to “the fair-minded lay observer.” See Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow & Hayne JJ: Callinan J concurring, at [182]), [83] (Gaudron J); Smits v Roach (2006) 227 CLR 423 at [56] (Gummow & Hayne JJ); and British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 at [37] (French CJ), and [139] (Heydon, Kiefel & Bell JJ).
In Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd, Kirby and Crennan JJ said, at [112] (internal citations omitted; emphasis added):[5]
Sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case. However, one thing that is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias.
[5] Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577. His Honour, Gummow A-CJ, concurred, at [4].
In the same case, in a detailed examination (at [171] – [180]) of what does and what does not constitute apprehended bias, Callinan J said, at [177], that “the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer.” And again, at [180], his Honour said (emphasis added):
Taken cumulatively, his Honour’s interventions and reasons for judgment do not give rise to an apprehension of bias. Critical, strong and candid they may have been, but excessively so they were not. To some extent they may be taken to be expressions of exasperation, unfortunately so perhaps, but as a matter of degree, still falling short of apparent bias.
As with the comments of Kirby and Crennan JJ, A-CJ Gummow concurred, at [4], with the remarks of Callinan J.
A recent consideration of apprehended bias is the decision in Michael Wilson & Partners Limited v Nicholls.[6] It is helpful to note the following from that case, both regarding its summary of principle, and for comparative purposes, its complex factual and procedural circumstances.
[6] Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427.
First, as to relevant principle, the High Court said, at [31] – [33] (internal references omitted), the relevant test in relation to apprehended bias is:
[31] … whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
[32] As the plurality in Johnson v Johnson explained, “[t]he 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 by some judges of the capacity or performance of their colleagues.”
[33] Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias.
The High Court also commented in Michael Wilson, first at [63] in relation to the test in Ebner, then at [67], saying (internal citations omitted; emphasis in original):
[63] In Ebner v Official Trustee in Bankruptcy, the plurality pointed out that application of the apprehension of bias principle requires two steps. First, it requires the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. And second, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits. The plurality in Ebner went on to say that “[t]he bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated.” So too, in this case, the bare assertion that the judge appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making.
[67] … an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgment” impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment.
The High Court further observed, at [69] – [70] (internal citations omitted):[7]
[69] Here, however, it was said that “the fact that one party appeared before the judge on seven separate days in closed court raised a different and additional concern.” That concern was identified as the possibility “in such circumstances that the judge's mind will become familiar with the character of the plaintiff's case to an extent that, consciously or subconsciously, there will be a tendency to place the further evidence within the pre-existing mental structure” (emphasis added). But the existence of a “concern” described as the possibility of placing the evidence led at trial into a “pre-existing mental structure” does not demonstrate that the fair-minded lay observer might reasonably apprehend that the judge might have prejudged an issue to be decided at trial. In order to establish such a reasonable apprehension it is necessary to analyse more closely the connection that is asserted between the conduct and disposition of interlocutory applications and the possibility of prejudgment.
[70] The fact that Einstein J made several ex parte interlocutory orders and on each occasion directed that those applications, the material in support, the reasons for making the orders and the orders themselves not be disclosed to one side of the litigation did not found a reasonable apprehension of prejudgment of the issues that were to be fought at trial. It may well be that the directions not to disclose material should not have been left in force for as long as they were. Perhaps they should not have been made at all. But if their making or the failure to limit their duration was wrong, that did not found a reasonable apprehension of bias.
[7] See also Heydon J’s comments, at [117], to the effect that, even on the facts in Michael Wilson, “prolonged familiarity” was insufficient to establish any relevant apprehended bias.
Against this outline of principle, I turn to the Applicant’s grounds of recusal.
Consideration & Disposition
The first matter I record is simply the period of time between the conclusion of the part-heard trial (in March 2018) and the recusal Application (in May 2018). While not a large amount of time, according to High Court authority, it is incumbent upon a litigant to make a recusal Application at the earliest possible time.[8] Curiously, no one mentions this point of procedural principle.
[8] See Smits v Roach (2006) 227 CLR 423.
In Smits v Roach, Kirby J said, at [125] (emphasis added; internal citations omitted):[9]
… it is now settled law in this Court that where a litigant, aware of circumstances providing a ground for objection on the basis of disqualification, fails to object promptly, that litigant will be taken to have waived the objection and cannot later rely on it. Obviously, this conclusion represents a practical approach, even if at the cost of some doctrinal purity.
[9] See also the plurality judgment of Gleeson CJ, Heydon & Crennan JJ in Smits v Roach at [43] to similar effect.
The matters complained of by the Applicant in par.6.a – f of her submissions all occurred during the hearing in March, but no recusal Application was filed until almost 3 months later. On the authority of Smits v Roach, the Applicant did not raise her concerns about alleged bias in a timely manner. In my view, on this basis, the Application should be dismissed. However, I put this argument to one side for the moment and focus on Ms Yu’s arguments and the grounds she articulated for the “disqualification” that she seeks.
Leaving to one side also the reference to the judicial oath, briefly I make the following comments on each of the grounds set out by the Applicant. I should also say that it is not altogether clear how much overlap there is, or is intended to be, between the respective Grounds.
Ground 1: Submissions par.6.a - c: “without authority to do so, His Honour banged the Bench and shouted at the Applicant in the courtroom. … demanded a document from the Applicant immediately, [and] forbade the Applicant to give explanations by making inappropriate comments”
Each of these matters is prefaced by the contention that I acted “without authority to do so.” It is not specified at all what the basis is for such a claim given that the conduct of the proceedings was before me, as the presiding Judge. As such, the only relevant authority in the Court resided in me. Again, putting this lacuna regarding the legal basis for alleged “lack of authority” in the Applicant's claims to one side, I note the following.
It is important to put into context the transcript references the Applicant provides in par.6 of her Affidavit. Respectfully, it is very much more detailed than the quite selective exchange set out in the Applicant’s Affidavit. The full exchange, where the Applicant was asked repeatedly to provide details of her claim, was as follows:[10]
[10] Transcript (23rd March 2018) pp.55 – 57. Hereafter, unless otherwise specified, all references will be to this Transcript and by “T” followed by page number.
HIS HONOUR: Thank you. So, Ms Yu, can I ask you, firstly, did you get any legal advice?
MS YU: Get to the ‑ ‑ ‑
HIS HONOUR: Did you ‑ ‑ ‑
MS YU: Get ‑ ‑ ‑
HIS HONOUR: Did you get any legal advice?
MS YU: No.
HIS HONOUR: So I won’t ask why, because that’s a matter for you, because as I’ve already mentioned, the range of issues, the range of, how can I put it, potential problems that may arise – can I take you through to your amended claim, this document? Have you got it with you there?
MS YU: Yes. Yes, your Honour.
HIS HONOUR: Right. So page 4 of that document, it lists the remedy sought. Do you see that? It’s part H.
MS YU: Part 8, is it?
HIS HONOUR: No. Part H on page 4.
MS YU: Yes.
HIS HONOUR: Remedy sought. Do you see that? And then you’ve ticked a number of boxes there of compensation and so forth and I would be grateful if you would explain, because I don’t really see where it’s detailed, because under the heading of Compensation:
Please give details on an attached sheet –
of how much compensation that you’re seeking and there’s another one in relation to pecuniary penalty. Do you see that?
MS YU: Yes. I have to – we have to sort the liability first, isn’t it?
HIS HONOUR: Well, thank you for that. Yes. I was going to get to that. But assume that we get over the liability issue. We don’t know if we will, but if we do, how am I going to know and how is the respondent going to know how much you’re seeking?
MS YU: Then I will write something up.
HIS HONOUR: No. I want it now. You’ve had multiple opportunities. I stressed yesterday the need for you to get legal advice, because you might have completely unrealistic expectations about what you may be entitled to. The trial was vacated last year at your request and I still don’t know and the respondent, I take it, still doesn’t know what size field we’re playing on, in terms of any claim for compensation.
MS YU: The other party already have it last time in the mediation.
HIS HONOUR: I can’t hear anything about mediation, but I need to know.
MS YU: After the liability I will give to you ‑ ‑ ‑
HIS HONOUR: Respectfully, you don’t tell me when you’re going to do things. I need to have some idea now what it is that you’re claiming.
MS YU: I’m claiming the past economic loss.
HIS HONOUR: Yes. Which is how much?
MS YU: I have to calculate it.
HIS HONOUR: Surely you have calculated it before this.
MS YU: Yes. But every time, it’s different because the days is different. The calculator from last time is different from this time, and your judgment maybe is not today. Then if the judgment has to be next week or next month or whatever, then according to – it – these figures change.
HIS HONOUR: I will say it for the third time. How can I reasonably know what it is that you’re seeking?
MS YU: I said past economic loss from the date I am dismissed.
HIS HONOUR: And how is that to be ‑ ‑ ‑
MS YU: From ‑ ‑ ‑
HIS HONOUR: And how is that to be calculated?
MS YU: From 17 August 2016 to whenever the judgment is.
HIS HONOUR: But how is that to be calculated?
MS YU: How can ‑ ‑ ‑
HIS HONOUR: On a daily basis? On an annual salary?
MS YU: Yes. Can be ‑ ‑ ‑
HIS HONOUR: What is it to be based on?
MS YU: I can calculate from the annual basis.
HIS HONOUR: So you say it’s based on an ‑ ‑ ‑
MS YU: But other party ‑ ‑ ‑
HIS HONOUR: An annual salary?
MS YU: Yes. I will put a proposal. Then other party can look at it and see for – but anything – it can’t be done today. Have to be the liability judgment first, right?
HIS HONOUR: Please don’t tell me again what I need to do. I’m well aware of that.
MS YU: Okay.
HIS HONOUR: But for the umpteenth time, I say I need to know what size legal field everyone is playing on, and this matter has been on foot since you filed an application on 18 November 2016, and we’re now 23 March 2018, and I still don’t know how much you are seeking in dollar terms, and all I’m saying is that it makes it incredibly difficult for me to try to get a much better understanding of the scope of the claim. I know the scope of the claim on the liability side, but I have no idea of the scope of the claim on the penalty slash compensation side. Do you understand my concerns?
MS YU: Everything – and the penalty size is also – depends on the liability judgment. If there’s no liability, there’s no penalty. If there’s a liability, then there’s penalty. I can’t give you a figure.
HIS HONOUR: I’m not going to ask you again. I will leave it to one side. I’m looking for assistance, and I’m getting very little. So unless there’s anything else, Ms Yu, come back into the witness box.
In her Affidavit, the Applicant emphasised the Court’s direction that she not tell the Court what to do. There is no such emphasis in the official transcript. Moreover, the larger context clearly indicates that the Court was simply trying, without any success, to elicit from the Applicant relevant detail and particulars of what it was she was seeking from the Respondent. She steadfastly refused to do so.
The factual context patently shows that the Court was simply trying to inquire – repeatedly – into the details of the Applicant’s claim. In the light of the principles outlined earlier in these reasons, inquiry by a Court – even repeatedly so and even with a hint of urgency if not frustration - of a party regarding unspecified but necessary details of a claim does not, factually or legally, constitute any basis for the Judge asking the questions to recuse herself or himself. Ground 1 is not made out.
Ground 2: Submissions par.6.d: “His Honour forbade the Applicant to refer to a note in the cross-examination.”
As noted in her Affidavit (par.7), the context of this claim is the resumption of the Applicant’s cross-examination on the second day of the hearing. She was proceeding to the witness box with some notes in her hand. As recorded in the Transcript, what transpired, or what was in fact stated, was as follows:[11]
HIS HONOUR: I think all we can do is just simply press on, and if we get to that stage, we get to that stage, but respectfully, it’s most unhelpful. Ms Yu, please come back into the witness box. Sorry. Leave your notes and everything back there, please. Leave your notes back on the bar table, please. If there are any documents that Ms Bindon wants you to look at, she will provide them to you.
[11] T 58.
Again, very unfortunately, what the Applicant recorded in her Affidavit (at par.7) is both very abbreviated, with incorrect and inappropriate emphasis, and is significantly inaccurate when compared to the Transcript. Moreover, it is well-known to lawyers, but obviously not to self-represented litigants, that the purpose of cross-examination is to “test” the evidence of the witness, and to do so without the assistance of documents, other than those provided to the witness or otherwise permitted by the Court.
Factually, this Ground is unsubstantiated and incorrect. Legally it is without foundation.
Ground 3: “His Honour’s conduct outlined at [6a] – [6d] above were intimidating and aggressive, which has been causing fear and anxiety to the Applicant.”
There was no request during the trial from the Applicant, for example, to seek an adjournment (even for a short period) in order to compose herself. There was no complaint from the Applicant during the trial about either the extent or nature of the cross-examination, or in relation to any questions or direction from the Bench. Moreover, as the extracts from the transcript set out earlier in these reasons make plain, what the Applicant perceived as having taken place during the trial, albeit after the event, is, in fact, quite different to what is recorded as having taken place during the trial. I specifically refute that there was any intimidation or aggression directed towards the Applicant. Such a claim or contention is not evident at all, or supported by, reference to the transcript of the hearing. Indeed, as the Respondent’s submissions make clear, from time to time, the Court indicated a view about certain matters that was in fact quite favourable to the Applicant and at least part of her claim.
Further, the “anxiety” to which the Applicant refers is common-place with almost all litigants, and especially self-represented litigants. By its nature, litigation is inherently stressful. Again, as the extracts from the Transcript outlined earlier make clear, the Applicant was treated respectfully and simply asked to provide information, and or to follow standard practices in a Court during a trial. Such things, in the light of the principles outlined earlier, do not constitute a ground for disqualification or recusal.
Ground 4: “Without good cause, His Honour let the Respondent’s Counsel cross-examine the Applicant for 2 days, even though there is no serious dispute between the parties in terms of the facts.”
First, the legal or factual bases of the Applicant’s reference to “without good cause” is not clear. Be that as it may, (a) the Respondent was/is entitled to cross-examine the Applicant in relation to the claims she makes, and (b) it would be procedurally unfair to prohibit a party from reasonably having such an opportunity. There is no indication or suggestion by the Applicant as to why such cross-examination was unfair. Moreover, as noted earlier in these reasons, both the Court and the Respondent sought, with quite limited success, to obtain some basic particulars and detail from the Applicant regarding her claim. Cross-examination is the standard vehicle to obtain clarification and information required for the proper conduct of a matter.
Secondly, the Applicant stated baldly that she was cross-examined for 2 days. This implies that, among other things, there was no relevant “break” during her cross-examination. This is quite incorrect. As the Transcript makes clear, and as noted by the Respondent in submissions, there were significant periods where there was no cross-examination. In short, the factual claim by the Applicant is erroneous. And in any event, the duration of cross-examination is not, according to any relevant principle, a ground for recusal. This ground, as with the other claims for disqualification made by the Applicant, is without foundation.
Ground 5: “Allocation of further hearing date & failure to provide a fair hearing.”
This ground (and the allegations contained in it) are set out in pars.6.g – i of the Applicant’s submissions. They are further amplified in pars.10 – 16 of the Applicant’s Affidavit, filed 25th May 2018.
As I apprehend the Applicant’s concerns here, they relate to (i) the time between the hearing last March and the resumed hearing next year, and (ii) an alleged breach of protocol in the communication with my Chambers regarding the availability of a witness for the Respondent, and in turn the availability and timeliness of availability of hearing dates. As I further apprehend the Applicant’s concerns here (noting too that invariably correspondence is handled directly by Associates and not by me), the Applicant contends that she did not agree to the Respondent advising the Court of the lack of availability of a particular witness; nor did the Applicant agree to the Court fixing a date for a resumed hearing.
The Applicant then contends that the “delay” in the further hearing has had a “significant impact on her financial, emotional and general well-being.” The latter is readily acknowledged but, respectfully, all such tensions and stress are a concomitant of litigation, and inevitably occur whenever any trial takes place. As such, and without detracting from the Applicant’s distress, such matters that go to the response or reaction of a party to litigation are beyond the Court’s control.
For my part, I simply note the following.
First, the allocation of hearing dates is pre-eminently a matter of balancing the extremely limited judicial resources of the Court, and ensuring, as far as is possible, that no party is unfairly prejudiced in the conduct of that party’s case. Here, the Applicant has been provided with every opportunity to put her case. It follows that the Respondent should have the same opportunity. Regrettably, because of the availability (or lack of it) of a particular witness, and as it turns out, a relatively central witness, to accommodate the proper adjudication of all matters before the Court, the earliest available date is the date now allocated next year.
In this regard, the Court is acutely conscious of the proper and timely allocation and use of “scarce public resources” to which the High Court referred in AON Risk Services Australia Limited v Australian National University.[12]
[12] AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.
Secondly, it is quite common practice that, in order to minimise cost and disruption to parties, variations to matters such as the allocation of trial dates and related procedural matters take place essentially through correspondence between the parties and with Chambers. There are, of course, protocols that govern the proper approach regarding such communication. Moreover, it is rare for the presiding Judge to see any of this correspondence, which is certainly the case here. Moreover, where, as I understand to be the case here, a party refuses to give consent and or objects to the other party advising the Court through correspondence regarding a matter material to the litigation (e.g. the availability of a witness), such is not prohibited.
Ultimately, the Court determined that there had to be a further date given for the resumed hearing in this matter due to the Respondent’s witness being unavailable for the originally allocated or proposed resumed hearing date. Although the Applicant vigorously contends that there was a relevant breach of protocol with the Respondent’s lawyer contacting Chambers to advise of the lack of availability of a particular witness, in the result, the allocation of a further date was governed above all else by the alarmingly small range of dates available to the Court. It was not allocated either to favour, or to disadvantage, one side or the other. And in such circumstances, the allocation of a hearing date, in conformity with principle, does not provide a basis for “disqualification.” Accordingly, this Ground has no foundation.
Transfer Application: this matter may be dealt with quickly and briefly.
A transfer to the Federal Court is necessary only in circumstances where the nature of the matter warrants such a course. Typically, this would occur where there is a singular and important legal principle to be determined, or where the complexity (factual and or legal) warrants the attention of a superior Court. No such matters are present here. It is no slight or offence to the Applicant to say that her claims under the Act are relatively straight-forward, and are of a kind that are dealt with regularly by this Court. The only relative “difficulty” in the matter relates to obtaining relevant particulars from the Applicant. Otherwise, it will become questions of the Court’s determination of (a) issues of fact, and (b) subject to what those determinations are, (b) the application of quite settled principles of law.
Accordingly, the transfer Application must be refused.
Conclusion
In addition to the reasons given here, I accept the submissions of the Respondent save as to the question of costs, which I reserve.
Both because of (a) the delay in making the Application, and hence the operation of the principle of waiver, and (b) factually and legally the Applicant’s Grounds have either not been made out, and or have been refuted by the evidence, the Application, filed 25th May 2018, must be, and is, dismissed. I reserve the Respondent’s costs.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 1 November 2018
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