FEDERAL COURT OF AUSTRALIA

Martin v Norton Rose Fulbright Australia (No 9) [2020] FCA 275

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s application for Kerr J’s recusal on the basis of apprehended bias be dismissed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The Respondent’s application for Kerr J’s recusal on the basis of apprehended bias be dismissed.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

KERR J:

1    On Monday 2 March 2020, Mr Martin made an oral application for my recusal after I had given ex tempore reasons stating why I had not been persuaded to grant him an adjournment of the trial of the two proceedings listed for concurrent hearing for five days (proceeding NSD1610/2016 and SAD49/2017). That adjournment application was premised on Mr Martin having indicated on the afternoon of the Friday before the trial was to commence that he was proposing to seek relief in the High Court of Australia, contending that I had erred in earlier dismissing his application to have proceeding NSD1610/2016 remitted for determination by a Full Court on the basis that a single judge of the Court lacked jurisdiction to hear and determine it. My reasons for refusing an adjournment, revised from the transcript, will be published shortly and I need not repeat them.

2    In his recusal application Mr Martin not only advanced criticisms as to how I had proceeded in resolving that question, but also my conduct in respect of two earlier hearings in which I had declined to recuse myself: see Martin v Norton Rose Fulbright Australia (No 5) [2019] FCA 1481 and Martin v Norton Rose Fulbright Australia (No 7) [2020] FCA 5.

3    Insofar as Mr Martin relies on my being in error in either of those regards, it would be inappropriate for me to add anything by way of response, addition or justification and so to expand upon the reasons I gave for my decisions at the time of their delivery. Those reasons must speak for themselves. A judge must resist offering a retrospective defence or justification for a decision. It is sufficient to note that it is self-evident that in each of those instances I rejected, for the reasons I gave, that a fair-minded observer would attribute to me an apprehension of bias. Neither of those interlocutory decisions has been made the subject of an application for leave to appeal.

4    I accept that that does not exclude the possibility that I may nonetheless have been in error. However, correction of asserted error is for an appeal court. Should my decisions be the subject of appellate attention, the transcripts of the proceedings in which those circumstances emerged and my published reasons will be available to the reviewing court. In Doggett v Commonwealth Bank of Australia [2019] FCAFC 19 (Doggett) a Full Court constituted by Kerr, Davies and Thawley JJ observed:

Claims of apprehended bias arise not infrequently, as they have in this appeal in respect of interlocutory proceedings. The usual position in relation to interlocutory proceedings is that an apprehension of bias is not per se manifested by an unfavourable finding. That is because often there will be instances prior to a final decision where a judge will require steps to be taken or not taken which disappoint one side or another in a proceeding. It is inherent in the interlocutory process that such preliminary decisions are made. Unfavourable findings in such circumstances are not to be taken by a fair-minded person as an expression that the judge has other than an impartial and unprejudiced mind in relation to the substantive proceeding. Such a conclusion is no more than a specific application of the more general principles stated in Asden Developments Pty Ltd (in liq) v Dinoris (2017) FCAFC 117 where Greenwood, Davies and Markovic JJ said at 49:

The test for apprehension of bias is forward looking and objective. The test is 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: Michael Wilson & Partners v Nicholls at [31]; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 344 at [6]. The test 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: Michael Wilson & Partners v Nicholls at [67].

5    For the reasons stated in Doggett, I reject that simply because my conclusions in those instances were contrary to the submissions Mr Martin then pressed, a fair-minded person would conclude that I would have anything other than an impartial and unprejudiced mind in relation to the substantive proceedings set down for trial this week.

6    Mr Martin relies on the following circumstances as further reasons for my recusal:

(a)    I rejected his application for an adjournment to permit him to proceed with an intended application in the High Court of Australia, without addressing his submissions regarding the unfairness of Norton Rose Fulbright Australia’s purported interlocutory application to discontinue NSD1610/2016 and its late advice that it had decided not to call a witness, Mr Cross, whose evidence it had included in the court book;

(b)    I declined to facilitate him addressing submissions as to whether the Court should allow him to reopen argument on the correctness of my interlocutory decision in NSD1610/2016 that a single judge could exercise the jurisdiction of the Court in that proceeding;

(c)    I dealt with his application without granting him the opportunity of a short adjournment to put on affidavit evidence as to the reasons for his delay and his reasons for not seeking leave to appeal and advising NFRA and the Court of his intention to seek alternative relief in the High Court only on the eve of the trial;

(d)    I ignored a submission pressed by him in seeking an adjournment of the whole of the trial that proceeding NSD1610/2016 was inextricably linked with his claim in SAD49/2017;

(e)    My reasoning in Martin v Norton Rose Fulbright Australia (No 7) [2020] FCA 5 involved a finding directly contrary to a finding which he would ask the Court to make in SAD49/2017; and

(f)    I placed time limits on his submissions, preventing him from having sufficient time to fully develop them.

7    I reject those submissions as premises for my recusal.

8    As to (a), I accept that I did not address those submissions. However, that was only because they were not material to the basis upon which I was addressing Mr Martin’s application for an adjournment. Those submissions were not directed to the issue of whether I should adjourn the trial because of his foreshadowed application to the High Court. They had no relevance to that question.

9    As to (b), I addressed Mr Martin’s submissions in my reasons for refusing an adjournment on the basis of what he had advanced by way of the further authorities that he had identified in his email of 28 February, copied to the Court. In those reasons I rejected that any of the cases to which he had referred in the email stood as authority against the reasons I had given when deciding Martin v Norton Rose Fulbright Australia (No 7) [2020] FCA 5. I noted that Mr Martin had not taken the opportunity to make written submissions when he had had the opportunity to do so during the hearing of his interlocutory application. I concluded that in those circumstances, no basis had been established that would require me to reopen for argument the correctness of the decision I had earlier made.

10    As to (c), I permitted Mr Martin to explain his reasons for delay from the bar table and I proceeded on the basis that, notwithstanding that evidence as to those reasons had not been provided by way of affidavit, I would have regard to them. Having done so, I rejected those reasons as providing a reasonable explanation for his delay in either seeking leave to appeal or filing an application in the High Court. Mr Martin accepted that he had not taken either step, and that the latter remained a matter of future intention.

11    As to (d), I did not ignore Mr Martin’s submission that the two proceedings were inextricably linked. I expressly rejected it, holding that the only live issue in NSD1610/2016 was which party, if any, was liable for costs.

12    As to (e), I reject that my conclusion that a single judge of this Court has jurisdiction to hear and determine NSD1610/2016 is contrary to Mr Martin’s case in SAD49/2017. In earlier proceedings with respect to that issue (addressed in Martin v Norton Rose Fulbright Australia (No 7) [2020] FCA 5) Mr Martin submitted that to find against him on that point would be:

…effectively to find matters that are directly contrary to the case, I will ask your Honour to determine in the substantive proceedings.

13    Section 20(2) of the Federal Court of Australia Act 1976 (Cth) is directed to how the Court is required to be constituted in the exercise of its original jurisdiction when a matter comes before it from, relevantly, a tribunal or a authority while constituted by a Chapter III judge, but has nothing to say as to whether the bringing of such a proceeding might be proper or otherwise. Whether the proceeding brought by Norton Rose Fulbright Australia was, as Mr Martin submits it to have been, an entirely unsuitable cause of action in the circumstances intentionally pursued for the purpose of gaining an illegitimate forensic purpose is an independent question to whether it ought or ought not to have been listed for hearing by a Full Court.

14    As to (f), I acknowledge that in the course of hearing a number of interlocutory applications made or opposed by Mr Martin I did place time limits on him advancing oral argument. It is uncontentious that the Court has power to so direct. Mr Martin does not submit otherwise. I reject that the limits I placed on the time available to him were inconsistent with his right to advance the submissions he indicated he would be seeking to press. Again, should the matter be the subject of appellate review, the transcript in relation to the various circumstances will be before the court.

15    The relevant principles in relation to the resolution of an application for a judge’s recusal for apprehended bias are well settled. In Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 (Ebner) Gleeson CJ and McHugh, Gummow and Hayne JJ conveniently summarise the principles in the following terms:

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.

7.    The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.

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.

(Citations omitted.)

16    The two-step test in Ebner thus requires the identification of what might affect the judge’s impartiality, and its logical connection with a possibility of departure from impartial decision-making in the case at hand.

17    Ebner itself concerned a case where the first step was said to be satisfied because the judge had a direct or indirect pecuniary interest in the cause. There is no suggestion by Mr Martin that I have any direct or indirect interest in the litigation, nor is there any suggestion that I have any association with any party or witness.

18    The test for apprehension of bias is forward-looking and objective. The test is whether a fair-minded lay observer might reasonably apprehend the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Ebner at [6].

19     The test 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 the issues that were to be decided: Ebner at [8].

20    A fair-minded lay observer is postulated in order to emphasise that the test is objective. While the fictional or a hypothetical observer is not a lawyer and is not assumed to have a detailed knowledge of the law, he or she is taken to be reasonable and not to be “wholly uninformed and instructed about the law in general or the issue to be decided”: Johnson v Johnson [2000] HCA 48; 201 CLR 488 (Johnson) at [53] per Kirby J citing R v George (1987) 9 NSWLR 527 at 536 per Street CJ.

21    For that reason, I take it to be settled law that the fair-minded lay observer would assume that the reasonableness of any suggested apprehension of bias would be considered in the context of ordinary judicial practice and modern case management practices: Johnson at [13]. It is necessary to attribute to the fair-minded lay observer knowledge of all the circumstances of the case: CUR24 v Director of Public Prosecutions (NSW) [2012] NSWCA 65; 83 NSWLR 385 at [39].

22    In my view none of the circumstances raised by Mr Martin engage those principles, such that a fair-minded lay observer might apprehend that I might not bring an impartial mind to the resolution of the substantive questions in NSD1610/2016 and SAD49/2017 that I will be required to decide in the trial.

23    In conclusion and out of an abundance of caution I note that while I rejected Mr Martin’s application that he be given an opportunity to make further submissions seeking to persuade me to reconsider my decision in Martin v Norton Rose Fulbright Australia (No 7) [2020] FCA 5, nonetheless, Mr Martin did subsequently press the submission that an authority not referred to in his email of 28 February 2020 required that I should do so. Mr Martin submitted in that regard that the reasoning of the High Court in Re Jarman; Ex parte Cook (No 1) [1997] HCA 13; 188 CLR 595 (Re Jarman) was dispositive of the question. Mr Martin submitted that I should have regard to that authority because it would be entirely contrary to the interests of justice that a judge who knew that he or she lacked jurisdiction should press on with a hearing regardless. I agree.

24    It would be my duty not to proceed with the trial of NSD1610/2016 if Mr Martin’s underlying submission were sound. However, Re Jarman is not authority for the proposition for which Mr Martin cites that decision. It concerns an entirely different question, raised in an entirely different context. Re Jarman concerned the issue of whether it might be open to the High Court to remit to the then Industrial Relations Court an application for certiorari and mandamus made with respect to an impugned decision of the single judge of that court in circumstances in which, by statute, the particular decision was of a nature whereby an appeal to a Full Court of the Industrial Relations Court was not available.

25    It is unnecessary to traverse the statutory complexities which, in the result, led to the High Court deciding by a three-four majority that that course should not be taken. It is sufficient to note that the decision has no relevance to the question I decided in Martin v Norton Rose Fulbright Australia (No 7) [2020] FCA 5. Re Jarman was decided in 1997. The statutory landscape applying to the regulation of industrial affairs since has been wholly transformed. The former reliance by the Commonwealth on its constitutional power to make laws with respect to conciliation and arbitration has been replaced by reliance on the corporations power. The former Industrial Relations Court no longer exists.

26    The exercise of federal judicial power with respect to industrial relations is now vested in this Court and, in certain respects, the Federal Circuit Court of Australia. While it may be accepted that it is settled law that it is competent for a person who is a judge of a Chapter III Court to be appointed to certain non-judicial tribunals - provided always there is no inconsistency between such a role and their judicial office such as to make the two incompatible - it is a fundamental constitutional requirement that the Fair Work Commission, as now established, can exercise no part of the judicial power of the Commonwealth.

27    That the role of the President of the Fair Work Commission is conceptually non-judicial insofar as he undertakes the functions of president of the tribunal is explicitly confirmed by s 653 of the Fair Work Act 2009 (Cth) (Fair Work Act), which permits the appointment of a person who is not a judge to that role. No possible question arises in either proceeding before me of a potential remittal to the Fair Work Commission to review a judicial act of a judge, although the President of the Fair Work Commission currently is also concurrently a judge of this Court (which was the case at the time of Norton Rose Fulbright Australia’s filing of its application in NSD1610/2016). In his role as President, that judge exercises the non-judicial statutory powers conferred on the incumbent of that position.

28    The convention of titling a proceeding in the name of the President and members of the Fair Work Commission is simply an artefact of the way that Parliament has chosen to describe the body it so created: see s 575(2) of the Fair Work Act. Mr Martin’s submissions of 24 December 2019 included the contention that NRFA’s statement of claim in NSD1610/2016 is predicated on the Fair Work Commission purporting to exercise judicial authority, which it did not have. In my view, that is a misreading of what is therein claimed. What is claimed is that the Fair Work Commission had no statutory jurisdiction conferred on it by the Fair Work Act. For those reasons, I am satisfied that Re Jarman has no material relevance to the issues before me.

29    Accordingly, I would dismiss the application.

Associate:

Dated:    5 March 2020