Federal Court of Australia

Toma v Fair Work Commission [2023] FCA 1163

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The respondent be granted leave to make any application for costs by filing and serving any submissions on costs limited to 5 pages, together with any supporting affidavit evidence, within 14 days of the delivery of judgment, or such further time as may be allowed.

3.    The applicant file and serve any submissions on costs limited to 5 pages, together with any supporting affidavit evidence, within 14 days of service upon him of submissions and affidavit evidence by the respondent, or such further time as may be allowed.

4.    The respondent file and serve any submissions in reply within 7 days of service of submissions by the applicant, or such further time as may be allowed.

5.    Any further time for compliance with orders 2, 3 or 4 may be sought by an email sent to nswreg@fedcourt.gov.au, marked for the attention of Justice Bromwich.

6.    Any application for costs be determined on the papers unless the Court considers it would be assisted by an oral hearing.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an application for leave to appeal from orders made by a judge of this Court by which her Honour refused leave for the applicant, Mr Loi Toma, to pursue a racial discrimination claim against the respondent, the Fair Work Commission (FWC) and entered summary judgment in favour of the respondent.

2    Mr Toma read his own affidavit in support of his application and otherwise relied upon his written submissions in chief and in reply, with very little of substance being said orally. The FWC relied upon its written submission, supplementing that by referring to Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020, in particular at [311]-[313] on the topic of judicial immunity as relevant to the primary judgment at [47] (PJ[47), in turn addressing the operation of the immunity provision in s 580 of the Fair Work Act 2009 (Cth).

3    Generally speaking, in order for an application for leave to appeal to succeed, it must be demonstrated that the primary decision is attended by sufficient doubt to warrant it being reconsidered by a Full Court and that substantial injustice would result if leave were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400 (Sheppard, Burchett and Heerey JJ). It was not suggested that this was other than an appropriate approach to take in this case.

4    The FWC submissions concisely summarise the litigation history leading to the proceeding before the primary judge, and the subject of this application for leave to appeal, again without exception being taken or modification being suggested by Mr Toma. It is therefore convenient to reproduce that summary (omitting court book references):

Mr Toma’s present application has its genesis in proceedings before the Fair Work Commission (FWC), which were commenced in March 2018: see Primary Judgment (PJ) at [13]ff. By those proceedings he claimed to have been unfairly dismissed from his employment, though his employer asserted Mr Toma had actually resigned and not been terminated. There was an interlocutory hearing in May 2018, following which Mr Toma’s application was dismissed as lacking reasonable prospects of success and pursuant to s 587 of the Fair Work Act 2009 (Cth) (Fair Work Act): see Loi Toma v Workforce Variable Pty Ltd T/A Workforce International [2018] FWC 2963 (Court Book.

That decision was successfully appealed by Mr Toma: Loi Toma v Workplace Variable Pty Ltd T/A Workforce International [2018] FWCFB 5811. Mr Toma’s application was subsequently heard in February 2019 by a different member of the FWC and was ultimately unsuccessful for jurisdictional reasons: Loi Toma v Workforce Recruitment and Labour Services Pty Ltd [2019] FWC 1564. A Full Bench of the FWC refused leave to appeal that decision in June 2019: Loi Toma v Workplace Recruitment and Labour Services Pty Ltd [2019] FWCFB 4240.

Mr Toma then commenced proceedings in the Federal Court seeking judicial review of the FWC’s decision, which were dismissed at first instance and on appeal: Toma v Workforce Recruitment and Labour Services Pty Ltd [2020] FCA 1102; Toma v Workforce Recruitment and Labour Services Pty Ltd [2022] FCAFC 100.

Mr Toma subsequently lodged a complaint with the Australian Human Rights Commission (AHRC), alleging, broadly, that he had been the subject of racial discrimination by the FWC.

Relevantly, s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) provides that only where a complaint to the AHRC has been terminated under s 46PH of that Act can an application in respect of the complaint be brought in the Federal Court. As explained in PJ [20], Mr Toma’s complaint to the AHRC was terminated in such a manner that he required leave to bring his racial discrimination claim in the Federal Court. The contours of his complaint are detailed in PJ [21]-[26], and the manner in which it was dealt with by the AHRC was set out in PJ [31]-[32].

The primary judge, at PJ [38]-[39], summarised the reasons why Mr Toma’s application for leave to bring his racial discrimination claim was refused and why his claims were not reasonably arguable, namely that the claims would (even if made out) attract judicial immunity pursuant to ss 580 and 584B of the Fair Work Act, there was no articulation or evidence of how the conduct constituted racial discrimination in the requisite sense and it sought to reagitate matters which had already been reviewed in the Court by Mr Toma’s prior judicial review proceedings.

Furthermore, at PJ [79] the primary judge, having noted at PJ [67] that the refusal of leave under s 46PO of the AHRC Act did not deal with all of the claims brought by Mr Toma, determined that Mr Toma’s claims for breach of the Fair Work Act lacked reasonable prospects of success and that the respondent was entitled to summary judgment in respect of those claims.

Mr Toma requires leave to appeal, pursuant to rule 35.11 of the Federal Court Rules 2011 (Cth) and ss 24(1A) of the Federal Court Act 1976 (Cth), noting that by reason of s 24(1D)(b) the PJ is taken to be an interlocutory judgment.

5    I adopt the definitions used in the above summary.

6    The two pleadings before the Court are the application for leave to appeal, and the draft notice of appeal, containing the following grounds, which are in substance the same:

(a)    the grounds in the application for leave to appeal (Leave Application) are:

[1]    I was denied procedural fairness both in the manner on the Hearing held on 12 September 2022 and then a short Hearing held on 18 October 2022.

[2]    The Judge made an error in law and did not apply her mind in a consistent manner thus giving an impression of bias.

[3]    The judgement and reasons given for the judgement are not supported by the evidence. The Judge misrepresented a letter from the AHRC President and cherry-picked parts of a Decision by a single judge, Justice Feutrill.

[4]    The Judge has denied my witness, Thiruvasan Nagan, rights given to him by the Australian Citizenship Act 2007. This breach will be included in 1 above.

(b)    the grounds in the draft notice of appeal (Draft NOA) are:

[1]    I was denied procedural fairness by [the primary judge]

[2]    The Justice made decisions that are not supported by the evidence and she misrepresented a letter submitted by the President of the AHRC

[3]    The Justice made an error in law and misrepresented a decision made by another single Justice in a separate matter that was submitted after the Hearing

[4]    The Justice contravened the Australian Citizenship Act 2007 when she defamed my witness, Nagan, without giving him an opportunity to give evidence and be cross-examined. The Justice has breached an agreement that the Commonwealth entered into with Nagan when he became a citizen.

[5]    It is in the public interest to hold a Hearing, hear from witnesses, examine evidence and then decide. [The primary judge] abused her discretionary powers and gave the impression of bias when ignoring the evidence and misrepresenting the President of the AHRC and another Justice.

7    The FWC submissions comprehensively address those grounds, and the arguments that Mr Toma advances in support of them, summarising the grounds and arguments advanced as follows, before addressing them.

8    As to the pleaded grounds, the FWC summary is:

(a)    that he was denied procedural fairness, including because Mr Thirusavan Nagan (Mr Nagan) was “denied … rights given to him by the Australian Citizenship Act 2007”;

(b)    that there was “an error in law” made by the primary judge, though there is no elaboration of the alleged error;

(c)    the primary judge “did not apply her mind in a consistent manner thus giving an impression of bias”; and

(d)    the decision was “not supported by the evidence”, having “misrepresented a letter from the AHRC President and cherry-picked parts of a Decision by … Justice Feutrill”.

9    As to the contentions in Mr Toma’s submissions in chief (which I note are maintained in the submissions in reply), the FWC summary is:

(a)    that the decision below was attended by bias and a ‘conflict of interest’;

(b)    that the primary judge erred in how she dealt with the termination of the AHRC complaint and the evidence of Mr Nagan; and

(c)    that he was denied procedural fairness because Mr Nagan was not permitted to give oral evidence; an AGS solicitor who had sworn affidavits in the proceeding was not permitted to be cross-examined by Mr Toma; and the respondent relied on a number of cases and documents in support of its case.

10    I consider that the above summaries captures the essence of the grounds advanced for the grant of leave to appeal and provide a useful structure for addressing them. Mr Toma did not take issue with that summary. I proceed upon the basis that he does take issue with the FWC arguments as to why none of those grounds should succeed. For convenience I also adopt the headings used in the FWC written submissions.

Bias and ‘Conflict of Interest’ – Leave Application, ground 2; Draft NOA, ground 5

11    These grounds involve four limbs of apprehended bias by reason of the primary judge’s associations and activities prior to appointment to this Court, actual bias by reason of deciding his case adversely to him (including as to evidence), inconsistency with what had been decided in other cases by other judges and bias in the conduct of the hearing before her Honour.

Apprehended bias by reason associations and activities prior to judicial appointment

12    The FWC accurately summarises the circumstances relied upon by Mr Toma in his grounds and written submissions for an apprehension of bias by reason of the primary judge’s associations and activities prior to appointment to this Court as follows (omitting footnotes):

(a)    That the primary judge’s swearing in ceremony, held after the first return date of the proceeding, was attended by the now-President of the FWC and that this was not notified to the parties.

(b)    That the primary judge acted for the Fair Work Ombudsman when she was in practice.

(c)    That the primary judge was, early in her career, an associate to a member of the former Australian Industrial Relations Commission.

(d)    That the primary judge co-authored a text book with Chris Ronalds SC.

(e)    An allegation that the primary judge’s “social circle, before becoming a Justice, involved mingling with members of the Respondent” (at [11]).

13    As the FWC correctly points out, the last allegation is unsupported by any evidence. As there is no factual foundation for that assertion, it cannot succeed.

14    The first four allegations are all matters of public record. As to the first, I advised Mr Toma at the hearing that I had accessed the transcript for the welcome ceremony for the primary judge, which took place after her Honour had been sworn in and after her Honour had heard this matter, leading to the orders and judgment now challenged. The then Vice President of the FWC, now President of the FWC and also now a judge of this Court, was one of a number of judicial officers and executive tribunal members who attended that ceremony. He was not, as Mr Toma described it in his submissions, “the guest of honour”, but it almost certainly would not matter if he were. Mere attendance at a formal public ceremony of this kind does not afford any proper basis for suggesting apprehended bias. It does not begin to meet the stringent test in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337, endorsed and applied in Charisteas v Charisteas [2021] HCA 29; 273 CLR 289 at [11] and in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; 66 Fam LR 369; 409 ALR 65 at [37]-[38]. Applying the Ebner test in terms, as expressly endorsed in Charisteas and in QYFM, no “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”. This asserted basis for apprehended bias could not possibly succeed.

15    The same conclusion applies to the remaining bases for suggesting apprehended bias, being that the primary judge as a barrister acted for the Fair Work Ombudsman, that the primary judge had been an associate to a member of the former Australian Industrial Relations Commission and that the primary judge co-authored a textbook on discrimination law. None of those circumstances have been shown to amount to any basis for a fair-minded lay observer to reasonably apprehend that the primary judge might not bring an impartial mind to the resolution of what her Honour was required to decide.

16    It follows that this aspect advanced for the grant of leave to appeal has no serious prospect of succeeding, and to refuse leave to appeal upon this basis would not occasion any injustice.

Actual bias by reason of deciding Mr Toma’s case adversely to him (including as to evidence)

17    Mr Toma refers to the rejection of his case and the manner in which his evidence was dealt with as establishing actual bias, asserting that her Honour’s behaviour “confirms that her conflicts affected her judgment”. Such an allegation is extremely serious, and should never be made upon the basis of nothing more than a party’s case failing, which is all that is in substance proffered. It is an allegation that entails an adverse judgment about the state of mind of a judicial officer: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 at [33] (Gummow ACJ, Hayne, Crennan and Bell JJ). Such a conclusion is not reasonably open, given the careful and thorough approach disclosed by the primary judge’s reasons. A merely adverse result, which is all that remains, will not suffice. This aspect advanced for the grant of leave to appeal has no prospect whatsoever of succeeding, and to refuse leave to appeal upon this basis could not possibly occasion any injustice.

Inconsistency with what had been decided in other cases by other judges

18    Mr Toma in substance asserts that an inconsistency in the approach taken by other judges of this Court in relation to AHRC complaints indicates bias. No other decision is identified that could possibly support this contention, let alone a material difference in approach. But even if it had been, that would not be enough to impugn what the primary judge decided as a question of bias. Each case turns on its own evidence, facts as found, and circumstances. This aspect advanced for the grant of leave to appeal also has no prospect whatsoever of succeeding, and to refuse leave to appeal upon this basis could not possibly occasion any injustice.

Bias in the conduct of the hearing before the primary judge

19    Mr Toma complains about the primary judge permitting the FWC to rely on a bundle of authorities, submitting that this demonstrates bias of some kind. He suggests that the fact that her Honour considered a further decision delivered since the hearing and drawn to her attention by the FWC also establishes actual bias. That cannot be accepted.

20    As to the bundle of authorities, the primary judge was doing no more than making a routine procedural decision of a kind routinely made by this Court. It needs to be remembered that, as is very common when a government agency or Department is a party against a litigant in person, as in this case, that individual and the Court are greatly assisted by the preparation of a court book and authorities by that agency or Department, as happened in this case for the hearing of Mr Toma’s claim.

21    Nor was there anything wrong with the FWC drawing to her Honour’s attention Mpinda v Fair Work Commission [2022] FCA 1111, a case in part on the topic of statutory immunity. Her Honour heard from Mr Toma about that case by way of written submissions, and accepted his submissions about its limited relevance due to the different circumstances involved, but accepted what Feutrill J had said about the application of judicial immunity the FWC: see PJ[49]. There is nothing wrong with this, and certainly it is not any proper basis for asserting even apprehended bias, let alone actual bias.

22    This aspect advanced for the grant of leave to appeal also has no prospect whatsoever of succeeding, and to refuse leave to appeal upon this basis could not possibly occasion any injustice. For the foregoing reasons, there is no proper foundation for the grant of leave to appeal upon the basis of apprehended or actual bias, or conflict of interest, as addressed above.

Denial of Procedural Fairness – Leave Application, ground 1; Draft NOA, ground 1

23    Each of the following asserted denials of procedural fairness as grounds for the grant of leave to appeal founder on the facts as to what in fact occurred. In his written submissions, Mr Toma makes a number of allegations which do not survive rudimentary scrutiny.

24    First, Mr Toma refers to two affidavits from a friend of his, Mr Nagan, and complains that this witness was not allowed to give further evidence, in context referring to oral evidence. But Mr Toma did not seek this. It follows that there is no identified basis for a denial of procedural fairness in these circumstances.

25    Secondly, Mr Toma complains about not being given an opportunity to cross-examine a solicitor deponent of two affidavits upon which the FWC relied. But again he did not seek this. Again, there is no identified basis for a denial of procedural fairness in these circumstances.

26    Thirdly, Mr Toma returns to the topic of the provision of a bundle of authorities, and various of those authorities being discussed in court, and also to the provision of the decision in Mpinda after the hearing, referred to above. Once again, there is no identified basis for a denial of procedural fairness in these circumstances, especially as he was given an opportunity to address that additional authority, and took advantage of that opportunity.

27    As no basis for an allegation of denial of procedural fairness has even been properly identified, let alone established, this basis for the grant of leave to appeal also has no prospect whatsoever of succeeding, and to refuse leave to appeal upon this basis could not possibly occasion any injustice.

Alleged Errors of Law – Leave Application, grounds 2 and 3; Draft NOA, grounds 2 and 3

28    The essence of these grounds concern the evaluation of the evidence that was before the primary judge, and the lack of reliance upon some of that evidence, including the affidavits of Mr Nagan. The submission on its face is that her Honour should have accepted the evidence of Mr Nagan that he had observed racial discrimination as proven fact, and found that the FWC Commissioners involved in Mr Toma’s case had “colonial attitudes”. The FWC’s answers to this must be accepted, namely:

(a)    the asserted facts were irrelevant to the question of the grant of leave to bring racial discrimination claims, because such a claim was governed by what was alleged in the complaint Mr Toma made to the AHRC: see s 46PO(3) of the AHRC Act, not what Mr Nagan had or had not observed and purported to make conclusions about;

(b)    it was in any event a matter for the primary judge to weigh and assess the evidence before her Honour, and no error in that respect was identified;

(c)    the task of the primary judge was not to make trial findings at that stage, but rather to address the issues raised by the two interlocutory applications before her Honour based on the pleaded case, rather than engage in factual determinations which would only arise for determination later in the event of there being a fit case to proceed to trial.

29    Mr Toma also takes issue with the refusal of leave to bring the racial discrimination claims upon the basis of a different conclusion being reached in another case in which leave was granted. Without more, that is not, and cannot be, a basis for alleging or establishing error. The inquiry in relation to the grant of leave is necessarily based on the case before a judge of this Court, not upon the basis of a conclusion reached in another case, except perhaps in the nature of precedent legal reasoning of a kind that is not even mentioned here.

30    Finally, Mr Toma complains that the primary judge “cherry picked” part of Mpinda. That complain rises no higher than an assertion that different parts of that authority should have been relied upon. Without more, that does not entail any appealable error.

31    No error of law is even properly identified, let alone shown to be arguable. As such, there is no basis for the grant of leave to appeal established, and necessarily no issue of injustice arises.

Contravention of Australian Citizenship Act 2007 (Cth) – Leave Application, ground 4; Draft NOA, ground 4

32    First, Mr Toma in substance contends that the primary judge defamed Mr Nagan by commenting upon the contents of his affidavit, without giving him an opportunity to give oral evidence and be cross-examined, and therefore breached an agreement that the Commonwealth entered into with Mr Nagan when he became a citizen. Both assertions are entirely baseless.

33    While the primary judge referred to Mr Nagan in the judgment in numerous paragraphs, it has not been attempted to demonstrate that any of those references go beyond the usual evaluative process of any judge in assessing evidence advanced for the very limited purposes of the interlocutory applications that were before her Honour. In particular, her Honour at PJ [59]-[60] referred to Mr Nagan’s affidavit evidence referring to having attended at FWC hearings and other processes, reading submissions and listing to audio recordings, characterising this evidence as containing nothing to support allegations of discrimination and bias beyond bare assertion. That is an ordinary part of the judicial function, for which more than disagreement is required to establish defamation, even if that was available to be advanced against a judge of this Court, which it is not.

34    Secondly, Mr Toma contends that when Mr Nagan became a citizen he entered into some kind of agreement with the Commonwealth giving him, it seems, the right not to be adversely commented upon. It has not been demonstrated how this could possibly be so.

35    No basis for the grant of leave to appeal on either of these bases, or taken together, has been identified, let alone established. There is no injustice in refusing leave to appeal in these circumstances.

Conclusion

36    As no basis for the grant of leave to appeal has been established, leave must be refused.

37    The FWC seeks to be given an opportunity to be heard on costs. In all the circumstances I consider that this is appropriate, such that orders will be made for any submissions and evidence to be filed and served, and for Mr Toma to respond. Any such application will be decided on the papers unless a compelling reason is advanced by either side for a further hearing.

Associate:

Dated:    29 September 2023