Federal Court of Australia

Mbuzi v Wordsworth (Recusal Application) [2024] FCA 132

ORDERS

THE COURT ORDERS THAT:

1.    The recusal application be dismissed.

2.    Costs of and incidental to the recusal application be costs in the proceedings.

3.    The matter be set down for a case management hearing at 10:00 am AEST on 25 March 2024.

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

REASONS FOR JUDGMENT

MEAGHER J

INTRODUCTION

1    By an affidavit dated 29 January 2024 (First Affidavit) and oral application during a first case management hearing held on 31 January 2024 (CMH), the applicant sought that I disqualify myself from hearing the matter on the basis of a potential conflict of interest arising from my previous employment. At the CMH, the applicant referred to examples of cases he maintained involved circumstances analogous to this case, and in which he succeeded in recusal applications. I therefore ordered that he provide details of those authorities to assist in deciding his application for my recusal. During the CMH, the applicant initially referred to the five affidavits he had filed with the Court by the date of the CMH, dated variously 27 November 2023, 7 December 2023, 29 January 2024, 29 January 2024 and 30 January 2024, but ultimately relied only on the First Affidavit.

2    Following the CMH, the applicant filed a lengthy affidavit on 6 February 2024 which set out further reasons in support of his application for my recusal (Second Affidavit). Attached to that affidavit were various file summaries, a Verdict and Judgment Record and an Order arising from matters in which the applicant was involved. Of the annexures which related to court appearances, one referred to a matter commenced against the applicant (BS6297/04), two related to matters commenced by him in the Supreme Court of Queensland (BS6243/09; BS3985/15) and one referred to a charge of a failure ‘to comply with regulatory notice’ issued against him in the Magistrates Court. While the applicant deposed that matters BS6243/09, BS3985/15 and the Magistrates Court matter involved a recusal, none of the attachments disclosed the basis upon which a judicial officer had recused themselves. The other annexures were correspondence from the respondents to the Court, draft orders handed up at the CMH and the Orders made at the CMH. Much of the affidavit took the form of submissions.

3    For the reasons that follow, the application for recusal is dismissed.

rEASONABLE APPREHENSION OF BIAS

4    The test for apprehended bias was recently considered by the High Court in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; 409 ALR 65 at [37] (Kiefel CJ and Gageler J), [67] (Gordon J), [221] (Gleeson J), [274] (Jagot J) which affirmed the test in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337. Apprehended bias exists when "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".

5    The Ebner test comprises a two-step process. First, it calls for the identification of the factor which might lead a decision maker to determine the matter other than on its legal and factual merits. Secondly, the test refers to the identification of a logical connection between the relevant factor and the risk of the matter being decided other than on its legal and factual merits: Ebner at [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

6    For a logical connection to be established per the second step of the test, there must be "a cogent and rational link between the association and its capacity to influence the decision": Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd & Qantas Airlines Ltd (1996) 65 FCR 215 at 235.

7    Referring to the test as the “double might test”, Charlesworth J in Burgess v Minister for Immigration & Border Protection (2018) 259 FCR 197 said at [35]-[36]:

The first “might” concerns the likelihood (to be assessed by the Court) of the lay observer forming the reasonable apprehension. The second “might” concerns the content of the apprehension itself. It concerns the assessment (notionally made by the lay observer) of the likelihood of the decision-maker having a foreclosed mind (as opposed to having a predisposed opinion) and so deviating from the course of deciding a case on its merits.

Judicial statements to the effect that an allegation of apprehended bias must be distinctly made and clearly established are not to be understood as altering the degrees of likelihood inherent in the test itself: see MZZXM v Minister for Immigration & Border Protection [2016] FCA 405 at [106] and the cases cited therein. Each “might” in the double might test connotes a degree of likelihood that is lower than that which may be required by the civil standard of proof in an ordinary fact-finding context. It must nonetheless be shown that the reasonable lay observer might apprehend that the decision-maker might have a foreclosed mind. It is not sufficient to demonstrate that the observer may have “a vague sense of unease or disquiet” on the question: Jones (as President of the Victorian Farmers Federation Chicken Meat Group) v Australian Competition and Consumer Commission (2002) 76 ALD 424 at [100] (Weinberg J).

8    In QYFM, it was accepted that a third step is required, namely a consideration of the reasonableness of the asserted apprehension of bias: [38] (Kiefel CJ and Gageler J), [67] (Gordon J), [225] (Gleeson J), [275] (Jagot J).

9    In Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48, the High Court considered that the reasonableness of any asserted apprehension of bias is adaptable to modern litigation practices. At [13], the High Court stated:

Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that 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. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case." Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

(footnotes omitted)

10    A number of characteristics are attributed to the fair-minded lay observer which are summarised by Kiefel CJ and Gageler J in QYFM at [47] - [49] as follows:

Being “fair-minded”, the observer “is neither complacent nor unduly sensitive or suspicious”. Yet the observer is cognisant of “human frailty” and is all too aware of the reality that the judge is human. The observer understands that “information [as well as attitudes] consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-making”.

Being “lay”, the observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge”. Though the observer may be taken to understand that the judge, by reason of professional training and experience and fidelity to the judicial oath or affirmation, will have a greater capacity than most to discard “the irrelevant, the immaterial and the prejudicial” and to discharge the judicial function uninfluenced by past professional relationships, “the public perception of the judiciary is not advanced by attributing to the … observer a knowledge of the law and an awareness of the judicial process that ordinary experience suggests not to be the case”. This indicates that the observer will see the person who is currently a judge as the person who was formerly an advocate and may be less inclined to dissociate the advocate from the cause advocated than would someone steeped in the adversary process with a cultivated sense of the ethics of the legal profession and the profundity of the judicial oath.

Nor is the observer so abstracted and dispassionate as to be insensitive to the impression that the circumstances in issue might reasonably create in the mind of the actual party who is asserting an apprehension of bias. The observer can be taken to appreciate that a party — especially an individual, and especially a non-citizen facing deportation on the basis of his conviction — might understandably experience a justifiable sense of disquiet in seeing his former prosecutor turn up as one of his judges.

(Footnotes omitted)

11    The fair-minded lay observer refers to “a representative of the Australian public, the continuing confidence of which in the rule of law is secured, in part, by acceptance that judicial decisions are made by impartial and independent judges”: QYFM at [273] (Jagot J).

CONSIDERATION

12    In his Second Affidavit, the applicant submitted that there were three matters which give rise to a reasonable apprehension of bias. They are my previous employment, my conduct during the CMH and my approach in dealing with this recusal application. I will address each in turn.

Previous Employment

13    In his affidavits and oral submissions during the CMH, the applicant raised concerns regarding a potential conflict of interest arising out of my previous employment with a law firm. The applicant submitted that the relevant law firm had represented parties against which he had a lengthy dispute in both the Supreme Court of Queensland and the District Court of Queensland.

14    The applicant alleged that the relevant law firm held a low opinion of him and displayed bigotry towards him.

15    The applicant deposed that he believed that a lay person would conclude that a reasonable apprehension of bias exists in circumstances where a Judge was formerly employed at a law firm which represented parties against him in previous proceedings. To that end, the applicant deposed that he believed that if I continued to preside in these proceedings, I would be motivated to ‘save face, and exact revenge for the losses’ suffered by the law firm in question.

16    Notwithstanding any alleged poor treatment of the applicant by the law firm, it is unclear how my employment as Chief Operating Officer (COO) of the law firm would result in a reasonable apprehension of bias in this instance. I have no knowledge of, nor recall any involvement or dealings with the applicant during my employment with the law firm. Indeed, until this matter, I had never heard of the applicant.

17    In any case, there is much case law to support the proposition that apprehended bias will not necessarily be made out even if a judge has previously appeared either for or against a party to the proceedings. The circumstances of each case must be considered by applying the test of apprehended bias.

18    In Re Polites; Ex parte The Hoyts Corporation Pty Ltd (1991) 173 CLR 78 at 87 – 88, the High Court (per Brennan, Gaudron, McHugh JJ) stated:

A prior relationship of legal adviser and client does not generally disqualify the former adviser, on becoming a member of a tribunal (or of a court, for that matter), from sitting in proceedings before that tribunal (or court) to which the former client is a party. Of course, if the correctness or appropriateness of advise given to the client is a live issue for determination by the tribunal (or court), the erstwhile legal adviser should not sit.

19    Similarly, in S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358, the New South Wales Court of Appeal had to consider whether the trial Judge ought to have recused himself on the basis that his Honour had previously appeared as counsel for Caltex and other major oil company interests. It was held by majority, per Priestly and Clarke JJA, Kirby P (as his Honour then was) dissenting, that no reasonable apprehension of bias existed. At 380 - 381, Priestly and Clarke JJA spoke to the need for the fair-minded lay observer to be moderately informed of the circumstances of the case:

For the apprehension of the parties or the public to be reasonable, we think it must arise upon an understanding of the actual circumstances in which the claim of possible bias is made. In the present case, a reasonable person knowing nothing of the way in which barristers do their work might, on first thought, in fact apprehend possible bias. We do not think such a judgment would be reasonable, because founded on insufficient knowledge for arriving at such a judgment. The reasonable observer would, in our opinion, need to inform himself of the circumstances in which the judge had done legal work for Caltex, before being able to form a reasonable judgment on the question of possible bias. Once he understood, in general outline, the way in which barristers carry out the work they do, upon the instructions of solicitors, for clients, and upon understanding, again in a general way, the difference between a large business organisation and the people who work for it, it seems to us that it would no longer be reasonable to apprehend possible bias on the judge's part.

20    In this case, no prior relationship of legal advisor existed. During my employment with the law firm, I did not act for any party engaged in a dispute with the applicant. The applicant’s claim that I would have any adverse motivation based on my previous role with the law firm has no merit.

21    I do not accept that a fair-minded lay observer, knowing that I was not involved in any litigation against the applicant, and having some knowledge of the role of a COO in a large law firm, may perceive my previous employment with that law firm as giving rise to a reasonable apprehension of bias. There exists no logical connection between my previous employment and the risk that I might decide the matter other than on its legal and factual merits.

Conduct during the CMH

22    The applicant deposed in his Second Affidavit, inter alia, as to my conduct during the CMH held on 31 January 2024. His affidavit in that regard may be summarised as follows:

(a)    Upon opening of the CMH, I announced that I was there to give directions;

(b)    I did not contest counsel for the respondents handing up draft orders before the applicant was able to speak;

(c)    Upon the applicant challenging the appropriateness of counsel for the respondents providing draft orders before he was able to speak, I informed the applicant that counsel for the respondents was providing copies of the proposed orders which had been provided to Chambers via email;

(d)    While it was claimed that the orders handed up in Court were the same as those provided to the applicant and the Court earlier via email, there were in fact some discrepancies between them. Therefore, the applicant alleges, counsel for the respondents engaged in fraudulent activity and misled the Court. On that basis, the applicant alleges that I aided and abetted the fraud, deception and dishonesty.

23    Insofar as the applicant’s complaints relate to my conduct during the CMH, it should be noted that the effective case management of a proceeding is ultimately at the discretion of the Judge. The overarching purpose of a case management hearing is consistent with sections 37M and 37N of the Federal Court of Australia Act 1976 (Cth). Namely, case management hearings are to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible by hearing the parties on their proposed course of efficient case management.

24    In Dunstan v Orr [2022] FCA 1006, Wigney J considered a recusal application that was based on various case management decisions during the proceedings. At [95], his Honour noted:

As the authorities discussed earlier make clear, where the alleged apprehension of bias is said to arise from case management or interlocutory decisions, there must be strong grounds for inferring the existence of a reasonable suspicion and a reasonable apprehension of bias must be firmly established. Mr Dunstan has neither identified strong grounds for that inference, nor firmly established any reasonable apprehension of bias arising from the case management of the proceeding to date. The mere fact that I have not always done what Mr Dunstan has advocated, or that I have not always accepted his submissions, or that the orders I have made may not be to Mr Dunstan’s liking, is plainly not enough to establish a reasonable apprehension of bias.

25    As the transcript discloses, no favouritism was shown to counsel for the respondents. Rather I permitted him to provide me with the orders he was seeking in the appropriate form, on the basis that what had previously been provided was in the form of part of an email sent to the Court. I also instructed counsel to provide a copy of the respondents’ proposed draft orders to the applicant.

26    Immediately thereafter, the applicant sought that I recuse myself. Accordingly, I did not consider the draft orders proposed by the parties or indeed make any orders regarding case management steps.

27    The conduct of the CMH could not raise a reasonable apprehension of bias to the fair-minded lay observer. No logical connection could be drawn between my conduct during it and the risk that I might decide the matter other than on its legal and factual merits.

The Application for Recusal

28    During the CMH, the respondents submitted that they opposed the application as the applicant's basis for seeking that I recuse myself was not appropriate. The respondents submitted that if every judicial officer who has been employed at a law firm which has been involved in litigation against a party in a proceeding before them were to recuse themselves, there would not be many judicial officers available to hear matters.

29    In response, the applicant submitted that he had experienced instances of Supreme Court judges recusing themselves for that very reason. Based on those oral submissions and others made by the applicant during the CMH, I ordered that he provide me with the authorities to which he had referred.

30    In his Second Affidavit, the applicant referred to Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 436 and Wentworth v Graham (2003) NSWCA 240 as authorities for the principle that an application for recusal should not involve a contest on the facts.

31    It is unclear why this is referred to as there is nothing to suggest that this application is the subject of factual contest.

32    The applicant then deposed that in Barton v Walker (1979) 2 NSWLR 740, and subsequently in Bainton v Rajski (1992) 29 NSWLR 539, it was identified that an application for recusal can be made without the filing of a formal motion. In the present case, no formal motion was ordered. The applicant initially raised the recusal application in his First Affidavit and orally during the CMH. For completeness, I note that the principle relied upon from Barton allows for a recusal application to be dealt with informally but certainly does not require it.

33    The applicant also deposed that I claimed I was going to make orders while also jointly dealing with his recusal application. Rather, I invited both parties to raise any matters they wished to raise at the CMH. The only orders made were orders directing the applicant to provide any authorities upon which he relied upon in relation to his recusal application.

34    As such, a fair-minded lay observer would not consider that my approach during the CMH, including as it related to the applicant’s recusal application, could give rise to a reasonable apprehension of bias. Indeed, it is likely a fair-minded lay observer would appreciate that I sought from the applicant details of the authorities to which he referred so that I could comprehensively consider his application for my recusal. No logical connection can be established in this instance.

CONCLUSION

35    The applicant’s application for my recusal is dismissed. Costs of and incidental to the interlocutory application will be costs in the proceedings. A further case management hearing shall be held to progress the matter.

Associate:

Dated:    26 February 2024