FEDERAL COURT OF AUSTRALIA

Kennedy v Secretary, Department of Industry (No 2) [2016] FCA 746

ORDERS

THE ORDERS OF THE COURT AS MADE ON 15 JUNE 2016 ARE:

1.    The Interlocutory Application filed on 17 May 2016 is dismissed.

2.    The Applicant is to pay the costs of the First Respondent in respect to the present Interlocutory Application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The Appellant in the present proceeding, Mr Ross Kennedy, was formerly employed by the Commonwealth Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education (the “Department”).

2    His employment with the Department came to an end in July 2012. Mr Kennedy claimed that he had been constructively dismissed. He instituted proceedings in the Fair Work Commission. He was unsuccessful. He sought review in this Court of decisions previously made by the Commission. That application for review was dismissed: Kennedy v Secretary, Department of Industry [2015] FCA 714. See also: Kennedy v Secretary, Department of Industry (No 2) [2015] FCA 884.

3    Mr Kennedy seeks to appeal from those decisions. He appears unrepresented.

4    A series of case management hearings were conducted with a view to ensuring that the hearing of Mr Kennedy’s appeal proceeded smoothly. Such hearings, it has been said, “are there to assist both the parties and the Court to prepare in an organised and orderly way for what is always a busy period of Full Court sittings”: Beezley v Repatriation Commission [2015] FCAFC 165 at [54], (2015) 150 ALD 11 at 25 per North, Tracey and Mortimer JJ. But difficulties emerged. A number of Interlocutory Applications were filed by Mr Kennedy. Some of those applications were resolved in May 2016: Kennedy v Secretary, Department of Industry [2016] FCA 485. An Interlocutory Application filed on 9 March 2016 seeking disqualification was expressly abandoned. Some of the background facts of relevance were there set forth. They need not be repeated.

5    On 14 April 2016 the parties were advised that the appeal would be listed for hearing in Canberra on 15 and 16 June 2016.

6    At the outset of the hearing on 15 June 2016, three preliminary issues were sought to be addressed, namely:

    the hearing of an Interlocutory Application filed on 17 May 2016, seeking an order that I disqualify myself from any further participation in the proceeding by reason of a reasonable apprehension of bias;

    an application which had been foreshadowed two days earlier, seeking an extension of time and leave to appeal from the decision published in May 2016. Leave was granted at the outset to file in Court the Interlocutory Application seeking that extension of time and leave to appeal; and

    an application for the hearing on 15 and 16 June 2016 to be adjourned.

It was proposed that those matters would be resolved in that order – if the disqualification application succeeded, the hearing of the appeal would also in all probability have to be adjourned.

7    As events unfolded, Mr Kennedy indicated that he was not ready to proceed with the hearing of his application seeking an extension of time and leave to appeal. I could take no part in the fate of that application and it was stood over by Jagot J for directions on 1 July 2016. Of necessity, Mr Kennedy was to that extent successful in having at least one matter adjourned. Although it is desirable for an application for leave to appeal to be heard in advance of the hearing of any appeal, Mr Kennedy was advised that any decision in respect to his appeal would not be handed down prior to judgment being delivered in respect to his application for an extension of time and leave. In the event that the hearing of his appeal proceeded on 15 and 16 June 2016, he was further advised that if the application for an extension of time and leave were successful, it may lead to his appeal having to be resolved again by a differently constituted Full Court.

8    Mr Kennedy sought to have his application for an adjournment resolved in advance of his application seeking disqualification.

9    The adjournment application then proceeded. In part, that application was founded upon claims by Mr Kennedy that he was suffering from anxiety and depression. At the conclusion of submissions the Court briefly adjourned. The Court resumed and the parties were advised that the application was rejected and that reasons would be delivered in due course.

10    The parties were further advised that:

    the disqualification application would then be heard;

and, depending upon the outcome of that application:

    the hearing of the appeal would then proceed.

But Mr Kennedy advised that he was “flabbergasted” by the rejection of his adjournment application and at the course proposed by the Court. He maintained that the Court lacked any “empathy” with his mental condition. Despite “urgings” that he remain, he left the hearing room. Before leaving, he was told that the Court would continue to hear the matter in his absence. He left and did not return.

11    Consistent with the course of which Mr Kennedy had been advised, I then proceeded to hear his disqualification application. The other two members constituting the Court remained on the Bench during the course of those submissions but have not participated in the making of the present decision.

12    That application was dismissed and the hearing of the appeal proceeded.

13    Brief reasons should be given in respect to the decision to reject the disqualification application. A brief reference should also be made to the principles to be applied in resolving that application.

14    Although it has been concluded that Mr Kennedy is now precluded from relying upon any facts prior to his abandonment of the first application seeking disqualification, all of the facts he seeks to rely upon have been considered. It is hoped that that may provide some comfort to an unrepresented litigant that his concerns have been fully addressed on their merits rather than by reference to any perceived “legal niceties” consequent upon the abandonment of the earlier application filed in March 2016.

The test to be applied

15    The principles to be applied are not in doubt. It is their application to the facts of a particular case which on occasions presents difficulties.

16    Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337 at 344 to 345 formulated the test to be applied as follows:

[6]    Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

…

[8]    The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The 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. Only then can the reasonableness of the asserted apprehension of bias be assessed.

In describing the test as “relatively well settled”, Allsop CJ, Kenny and Griffiths JJ have said that the test “is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the Court might not bring a fair, impartial and independent mind to the determination of the matter on its merits”: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35]. Their Honours went on to say that “there must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits”: [2016] FCAFC 30 at [36]. It may also be readily accepted that a “reasonable apprehension” of bias must be “firmly established”: Re JRL, Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J. See also: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [22] per Flick J (Allsop CJ agreeing); MZZLO v Minister for Immigration and Border Protection (No 2) [2016] FCA 356 at [53] per Moshinsky J.

17    And when reference is made in the authorities to a “fair-minded observer”, questions arise as to the knowledge to be attributed to such an observer. Thus, for example, in Johnson v Johnson [2000] HCA 48, (2000) 201 CLR 488 at 507 to 508 Kirby J summarised the authorities and principles as follows:

The knowledge imputed to the fictitious bystander

There is no simple answer to the foregoing questions. As is usually the case when a fiction is adopted, the law endeavours to avoid precision. The nature of the fiction involved in this instance is illustrated by the many ways in which the hypothesised bystander is described. Phrases that have been used include the “lay observer”, “fair-minded observer” … “fair-minded, informed lay observer” … “fair-minded people” … “reasonable or fair-minded observer” … “reasonable and intelligent man” … the “parties or the public” ... a “reasonable person” ... or (as has sometimes been favoured in England ... and Canada ...) the somewhat quaint and circular phrase, a “right-minded” person. Obviously, all that is involved in these formulae is a reminder to the adjudicator that, in deciding whether there is an apprehension of bias, it is necessary to consider the impression which the same facts might reasonably have upon the parties and the public. It is their confidence that must be won and maintained. The public includes groups of people who are sensitive to the possibility of judicial bias. It must be remembered that, in contemporary Australia, the fictitious bystander is not necessarily a man nor necessarily of European ethnicity or other majority traits …

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 …

Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ further observed that although the fictional observer is not to be assumed to have a detailed knowledge of the law, the reasonableness of the apprehension of bias is to be considered in the context of ordinary judicial practice and that such practice is “not frozen in time”. The practice has to take account of the exigencies of modern litigation, including the fact that at the trial level modern judges respond to a need for more active case management and intervene in the conduct of a case, which “may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx”: [2000] HCA 48 at [13], (2000) 201 CLR at 493.

18    Where an application is made for a judge to disqualify himself, three further principles should be noted.

19    First, a judge should not automatically disqualify himself on an application being made: Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 294. Mason, Murphy, Brennan, Deane and Dawson JJ there observed that:

“... it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court.”

Appl’d: Deputy Commissioner of Taxation v Commercial & General Law (SA) Pty Ltd [2011] FCA 1269 at [44] per Lander J. Similarly, in Antoun v The Queen [2006] HCA 2, (2006) 80 ALJR 497 at 504 to 505 Kirby J has observed:

[34]    It is true that, in the oft-repeated and oft-applied words of Mason J in Re JRL; Ex parte CJL [(1986) 161 CLR 342 at 352], 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 amongst the judicial officers who will conduct the trial. This principle has been reasserted and applied in many cases. It was not questioned in this appeal.

[35]    The duty to discharge judicial functions is necessarily subject to any disqualifying conduct on the part of the judge subject to a recusal submission. The observations in Re JRL are a corrective to over-ready disqualification. But they are not a blanket that smothers the effect of disqualification where it has already arisen.

A “judge should not recuse himself or herself from hearing a particular case without there being a proper and substantial reason for doing so”: Rana v Commonwealth of Australia [2013] FCA 189 at [36] per Mansfield J. See also: Patel v Minister for Immigration and Citizenship (No 4) [2012] FCA 1170 at [80] per Collier J. In a recent review of some of the authorities, it has been said that the “case law demonstrates that appeasement is not an appropriate ground for recusal”: Olowofoyeku, ‘Inappropriate Recusals’ (2016) 132 LQR 318 at 323. As noted there, on occasions acceding to an application for disqualification is only succeeded by another application to disqualify a newly allocated judge.

20    Second, a party should be afforded a reasonable opportunity to make submissions in support of a disqualification application. A refusal to permit a party reasonable time may lead a fair-minded observer to “take a much harsher view” of remarks made and may create a “real and not remote possibility” of a judge not bringing an impartial mind to the resolution of a case: AJH Lawyers Pty Ltd v Careri [2011] VSCA 425 at [68], (2011) 34 VR 236 at 254 to 255 per Warren CJ, Hansen JA and Almond AJA.

21    Third, a party may “waive” any entitlement to rely upon conduct that could otherwise constitute a reason for seeking disqualification: Ebner [2000] HCA 63 at [6], (2000) 205 CLR at 344. The rationale behind the principle which requires a party to make an election as to whether reliance should be placed upon allegedly inappropriate conduct or to waive any future right to rely upon such conduct has been explained as follows by Brennan, Deane and Gaudron JJ in Vakauta v Kelly (1989) 167 CLR 568 at 572:

Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case if clear objection had been taken to the comments at the time when they were made or the judge had been asked to refrain from further hearing the matter, the judge may have been able to correct the impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgement and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it was proved to be unfavourable to him or her.

See also: Dawson J at 577 and Toohey J at 587. The trial Judge was there hearing a personal injury case and had referred to the defendant’s doctors as “that unholy trinity” being part of the “usual panel of doctors who think you can do a full week’s work without any arms or legs” and whose “views are almost inevitably slanted in favour of the [insurer] by whom they have been retained, consciously or unconsciously”. It was concluded that the comments did not constitute actual bias. The repetition by the trial Judge of the same comments in his judgment, however, did expose “ostensible bias”. Their Honours thus went on to address the consequences flowing from the repetition of much the same comments in the judgment of the trial Judge as follows:

If the above comments made by the learned trial judge in the course of the trial had stood alone, we would have been of the view that the appellant, having taken no clearly stated objection to them at the time and having stood by until the contents of his Honour's judgment were known, could not now found upon them in order to have that judgment set aside on the grounds of a reasonable apprehension of bias. The statements which the learned trial judge had made about his preconceived views of Dr Lawson were, however, effectively revived by what his Honour said in his reserved judgment. The appellant's failure to object to the comments made in the course of the trial cannot, in our view, properly be seen as a waiver of any right to complain if comments made about Dr Lawson in the judgment itself would, in the context of those earlier comments, have the effect of conveying an appearance of impermissible bias in the actual decision to a reasonable and intelligent lay observer. While, as we have indicated, the line between comments which would be likely to have that effect and comments which would not is necessarily an imprecise one, we have come to the conclusion that, when they are read in the context of what was said in the course of the trial, his Honour's comments in his judgment fall on the wrong side of that line. In particular, it seems to us that such a lay observer would be likely to see the derogatory and wide-sweeping references to Dr Lawson in the judgment — “Even Dr Lawson”; “his evidence, which was as negative as it always seems to be — and based as usual upon his non-acceptance of the genuineness of any plaintiff's complaints of pain” (emphasis added) — as indicating that his Honour was concerned to vindicate his preconceived and very strong adverse views about the reliability of Dr Lawson as a witness and had allowed those views to prejudice his whole approach to the case to the detriment of the defendant. An experienced lawyer would appreciate the ability of a trial judge to ensure that preconceived views do not cause the actual decision to be tainted by prejudgment or bias. The likelihood that the lay observer would not lies at the heart of the requirement of the appearance as well as the reality of impartial justice. To borrow and adapt words used by Mahoney JA in his dissenting judgment in the Court of Appeal, the comments in the judgment were such as to cause “reasonable apprehension” on the part of a lay observer that the judgment itself was, “in the end”, affected by bias: (1989) 167 CLR at 573 to 574.

See also: Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88 at [23] to [34] per Basten JA.

The factual foundation for disqualification – the first application

22    If any question as to abandonment or waiver be presently left to one side, Mr Kennedy initially sought to bring his application for disqualification within these accepted principles in his Interlocutory Application filed on 9 March 2016 by reference to facts broadly falling within two categories, namely facts arising in the context of:

    the present proceeding; and

    separate proceedings arising in different matters involving different parties.

The identification of these bases of challenge emerges further from correspondence Mr Kennedy sent on 30 March 2016 and 5 April 2016.

23    The facts relied upon by Mr Kennedy which have arisen in the context of the present proceeding may be summarised as follows:

    the making of orders, or a failure to make orders;

    comments made during the course of directions, including comments (for example) as to the apparent lack of merit of Grounds of Appeal in the Notice of Appeal as first filed and comments directed to only a limited number of those Grounds and not the remaining Grounds; and

    comments made as to the consequences of not complying with Court orders, including the prospect that an appeal may be dismissed for failure to comply with directions and orders.

Reliance was also placed upon (inter alia):

    a failure to respond to correspondence; and

    a failure to provide reasons for decisions, including a failure to provide reasons for not providing reasons.

A summary allegation is made that there has been a failure to take Mr Kennedy “seriously as a litigant”.

24    As to the facts relied upon by Mr Kennedy which have arisen in the context of other proceedings involving different parties, those facts can be summarised as including statements made and orders made in the following two decisions:

    Brown v Health Services Union [2012] FCA 644, (2012) 205 FCR 548 (and related subsequent proceedings); and

    Kerrison v Melbourne City Council [2014] FCAFC 130, (2014) 228 FCR 87.

I constituted the Court in the former case and formed one of the three Judges constituting the Full Court in the latter case.

25    The former case received considerable publicity. It concerned (inter alia) a question whether the Health Services Union had “ceased to function effectively” within the meaning of and for the purposes of the Fair Work (Registered Organisations) Act 2009 (Cth). A person intimately involved in that litigation was Ms Kathy Jackson. The Union, it was concluded, had “ceased to function effectively” and an administrator was appointed, the administrator being a former judge of this Court. Mr Kennedy seeks to make the Health Services Union, and the appointment of the administrator, relevant to the present application by reliance upon a myriad of allegations – including allegations that the administrator was a “bribe taker” and a person appointed “to make sure the corruption within the union can be covered up as much as possible”. Reliance is also placed upon the rejection of an application made in that case that the Court be reconstituted by reason of a reasonable apprehension of bias ([2012] FCA 644 at [181] to [185], (2012) 205 FCR at 600 to 601) and directions made that the case proceed when Senior Counsel withdrew from the case describing the position as “outrageous” and with the Secretary of the Union (Ms Jackson) representing herself. Notwithstanding that there is no basis upon which such allegations could or can now be sustained, such is the nature of the allegations relied upon by Mr Kennedy.

26    The second case was an appeal from a decision of a primary judge concerning a protest group known as “Occupy Melbourne”. Ms Kerrison was a member of that group. It, too, was a case which attracted considerable publicity. One of the facts that emerged in that case was police action in which the police had been instructed to forcibly remove in public a “tent dress” being worn by Ms Kerrison in circumstances in which Ms Kerrison had told those involved that she was wearing nothing (or very little) under the “tent dress”. During what can accurately be described as a “robust” exchange with Senior Counsel for the Melbourne City Council, I made the comment that those who authorised the police action “should be shot”. Given the other options available to be exercised, including the removal of Ms Kerrison from the public park in which the demonstration was taking place, a decision authorising the use of force to substantially undress a young girl in public seemed (in the absence of explanation) a serious excess of power. No explanation was provided. The appeal, however, was dismissed in a joint judgment: Kerrison v Melbourne City Council [2014] FCAFC 130, (2014) 228 FCR 87.

27    With the greatest deference to Mr Kennedy, it is respectfully concluded that the entirety of the conduct relied upon falls well short of providing “a proper and substantial reason” for disqualification.

28    The facts relied upon, standing by themselves, it is respectfully considered, do not provide any adequate factual foundation for a reasonable apprehension of bias. Although the genuineness of the concern of Mr Kennedy need not be questioned, it is not the personal apprehension formed by a litigant that is decisive. What is decisive is whether there is a “reasonable apprehension” of bias.

29    The facts relied upon by Mr Kennedy that have arisen in the conduct of the present case up to the case-management hearing on 12 April 2016, it is respectfully considered, do not provide any basis for a “reasonable apprehension” to be formed that fair and impartial consideration has not been given to the orderly progression of his appeal for hearing. Nothing more emerges than an attempt to properly ready an appeal for hearing before a Full Court.

30    The facts emerging from the Health Services Union and Kerrison cases provide an even shakier foundation for any reasonable apprehension of bias. Statements made and orders or directions made in separate proceedings, without more, do not expose any “logical connection” (cf. Ebner; ALA15 [2016] FCAFC 30 at [36]) between the conduct of those other cases and why there is a reasonable apprehension of bias in the present case.

31    Even further reason for reservation is experienced if reference is made to the knowledge to be ascribed to the “fair-minded observer”. If reference is made to the facts emerging from the conduct of the present case, the knowledge of the informed bystander would include knowledge of such matters as:

    the chronological context in which directions or orders were made – including the making of past directions and orders;

     the legal context in which directions or orders were made – including knowledge of the content, for example, of the Notice of Appeal as first filed; and

    the context in which comments were made, including the balance of the issues addressed during (for example) a directions hearing.

When, for example, reference is made to the transcript of the directions hearing held in February 2016, such comments as were made with respect to isolated Grounds of Appeal were made in the context of focussing attention upon the perceived deficiencies in the Notice of Appeal as first filed and the need to remedy such deficiencies in an Amended Notice of Appeal. Without such a minimum of knowledge, a fair-minded observer would simply respond: “I don’t know enough to responsibly form a view. I may be interested to know the context in which those comments were made, but at present I don’t know enough”. Armed with such knowledge, any reasonable apprehension of bias – it is respectfully concluded – recedes further into the distance.

32    A litigant cannot by his own conduct or by reference to his own perceptions seek to have a judge of his own choosing allocated to a case.

33    Had it been necessary to resolve the Interlocutory Application filed on 9 March 2016, it would have been rejected.

Waiver – an application abandoned

34    Albeit resolved, it is nevertheless further concluded that Mr Kennedy is now precluded from relying on the facts and circumstances on which he could have relied previously.

35    It is concluded that he has “waived” any entitlement to do so.

36    The reason why it is concluded that Mr Kennedy waived any entitlement to rely upon facts pre-dating the case management hearing in April 2016 emerges from the following exchange which occurred at the conclusion of that hearing. The transcript records Mr Kennedy saying:

Look, I abandoned two interlocutory applications today sir, I think you just made a note of one.

The two interlocutory applications to which reference was made was an application seeking an extension of time and the other was for me “to recuse”. The transcript continues:

HIS HONOUR: It will be noted that both of those are abandoned. The significance of that, Mr Kennedy, is that – well, the extension of time becomes academic because you’ve got the time in any event.

MR KENNEDY: Yes, it would be nice to cross it off.

HIS HONOUR: But the application to disqualify me from proceeding would assume – unless there are new and additional facts that emerge between now and the hearing – it would become very difficult for you to renew that application.

MR KENNEDY: I won’t renew it, sir.

HIS HONOUR: No? That’s a matter for you.

MR KENNEDY: I’m fairly confident.

HIS HONOUR: Right. Well, thank you for your assistance this morning gentlemen.

MR KENNEDY: Thank you, sir.

37    Notwithstanding the fact that Mr Kennedy has at all times been unrepresented, it is respectfully considered that the exchange that occurred on 12 April 2016 constitutes a “waiver” on his part of his ability to rely upon any facts and circumstances pre-dating that case management hearing in respect to any application for disqualification founded upon a reasonable apprehension of bias.

38    Although in Vakauta, Brennan, Deane and Gaudron JJ confined their comments to where “a party … has legal representation”, the same rationale nevertheless applies to an unrepresented party where the consequences of abandoning a claim have been explained to him – as in the present case.

The factual foundation for disqualification – the second application

39    The fact that Mr Kennedy did not participate in the hearing on 15 June 2016 subsequent to his adjournment application being refused makes it difficult to identify the facts and circumstances occurring subsequent to 12 April 2016 which could found any application for disqualification.

40    Notwithstanding that difficulty, those facts could potentially include:

    the publication of reasons for decision and judgment on 11 May 2016;

    my participating in the decision made on 15 June 2016 refusing to adjourn the hearing on that day;

    correspondence forwarded by Mr Kennedy to either the Registry or to Chambers which remained unanswered; and

    an asserted lack of “empathy” with Mr Kennedy’s mental condition.

Such matters emerged during the course of his submissions as to why the hearing on 15 and 16 June 2016 should be adjourned.

41    Those facts, it is respectfully considered, provide an even less firm foundation for any argument as to a reasonable apprehension of bias.

42    It will be rare circumstances indeed where the publication of reasons for decision in itself will provide a factual foundation for a reasonable apprehension of bias. But Vakauta nevertheless stands as an example of circumstances in which reasons for decision – taken in a broader context – may expose a reasonable apprehension of bias.

43    And the failure of a judge to respond to correspondence forwarded either to the Registry or to a judge’s Chambers is only to be expected. A judge does not participate in a private exchange of correspondence with a litigant; a judge’s role is to resolve such applications as have been filed in Court and to do so upon the basis of evidence admitted or by reference to an agreed statement of facts. Any other course has the very real potential to undermine the open and impartial administration of justice in which all parties have an opportunity to participate. An asserted lack of “empathy”, moreover, does not translate into a factual foundation of itself for a reasonable apprehension of bias.

CONCLUSIONS

44    Any application for disqualification of a Judge from further participating in a hearing must be “firmly established”: Re JRL (1986) 161 CLR at 352. No such basis has been established.

45    Irrespective of whether or not the present application is founded upon either:

    the same facts and circumstances as prevailed prior to 12 April 2016, being those facts and circumstances previously relied upon; or

    the facts and circumstances which have emerged since 12 April 2016

the Interlocutory Application filed on 17 May 2016 is to be dismissed with costs.

46    Upon the facts, either those relied upon either before or after 12 April 2016, it is not considered that a fair-minded observer would form any view that there is a reasonable apprehension of bias.

47    Although unnecessary to decide, it is further concluded that Mr Kennedy waived any entitlement to rely upon facts pre-dating the 12 April 2016 hearing.

48    To the extent that Mr Kennedy relied upon actual bias, as opposed to a reasonable apprehension of bias and to the extent that a litigant may not be able to waive actual bias, that submission is also rejected. There is no basis for concluding that any actual bias has been made out.

49    It should, perhaps, be further noted that Mr Kennedy expressed his criticism of the conduct relied upon in a forthright manner. There was no ambiguity in his dissatisfaction with my continued participation in the hearing. The bases upon which he expressed that dissatisfaction were clearly and coherently articulated, albeit as part of his application to adjourn the hearing.

50    Subject to the necessity to ensure the continued public confidence in the judicial process, which necessarily imposes some constraints upon the manner in which submissions may be expressed, no litigant should be unnecessarily constrained in voicing his concerns. Both an individual judge and a court should remain open to “honest criticism based on rational grounds”: R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 at 442 to 443. In the context of considering an application for contempt of court, Rich J there observed:

The Court is called upon to exercise its summary power of punishing contempts of Court ... The jurisdiction is not given for the purpose of protecting the Judges personally from imputations to which they may be exposed as individuals. It is not given for the purpose of restricting honest criticism, based on rational grounds, of the manner in which the Court performs its functions. The law permits in respect of Courts, as of other institutions, the fullest discussion of their doings, so long as that discussion is fairly conducted and is honestly directed to some definite public purpose. The jurisdiction exists in order that the authority of the law as administered in the Courts may be established and maintained …

The same comments are equally applicable to the manner in which a litigant remains free to express the grounds upon which he seeks the disqualification of a judge. No judge and no court, it is respectfully considered, should shrink from “honest criticism based on rational grounds” or seek to “suppress vigorous advocacy which does not constitute a defiance of the authority of the court”: Ex parte Tuckerman; Re Nash [1970] 3 NSWR 23 at 27 per Asprey, Holmes and Mason JJA.

51    Although some reservation may be expressed as to the manner in which Mr Kennedy expressed his concerns, and some reservation as to whether his remarks may have trespassed beyond “honest criticism based on rational grounds”, it is concluded that his freedom to do so and the manner in which those concerns have been resolved will only serve to ensure continued public confidence in the impartial administration of justice in this Court.

THE ORDERS OF THE COURT AS MADE ON 16 JUNE 2016 ARE:

1.    The Interlocutory Application filed on 17 May 2016 is dismissed.

2.    The Applicant is to pay the costs of the First Respondent in respect to the present Interlocutory Application.

Associate:    

Dated:    24 June 2016