Federal Court of Australia

Mbuzi v Wordsworth [2024] FCA 977

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for leave to appeal dated 8 March 2024 be dismissed.

2.    There be no order as to costs in relation to that application.

3.    The respondents’ interlocutory application dated 21 June 2024 be dismissed (with no adjudication on the merits).

4.    There be no order as to costs in relation to that application.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The applicant, Josiyas Mbuzi, has applied for leave to appeal from a decision of a Judge of this Court (the primary judge), dismissing an application that she recuse herself: Mbuzi v Wordsworth (Recusal Application) [2024] FCA 132.

2    In summary, the principal basis upon which Mr Mbuzi contended that the primary judge should recuse herself was that her Honour was previously employed by a firm that acted for a party against Mr Mbuzi. Mr Mbuzi also relies on her Honour’s conduct at a case management hearing on 31 January 2024.

3    In support of his application for leave to appeal (which is dated 8 March 2024), Mr Mbuzi relies on an affidavit of himself dated 8 March 2024. The affidavit annexes (among other things) a draft notice of appeal.

4    In response to the application, the respondents (Daniel Wordsworth, Nathan Callaghan and World Vision Australia) rely on an affidavit of Hai Ying Mo, a solicitor employed by Corrs Chambers Westgarth, the solicitors for the respondents, dated 21 June 2024.

5    Mr Mbuzi represented himself at the hearing of his application for leave to appeal. The respondents were represented by counsel. Both sides filed outlines of submissions in advance of the hearing.

6    The respondents filed an interlocutory application dated 21 June 2024 seeking summary dismissal of Mr Mbuzi’s application for leave to appeal and orders pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth) (which relates to vexatious proceedings orders). In advance of the hearing of Mr Mbuzi’s application for leave to appeal, I ordered that paragraph 2 of the respondents’ interlocutory application (being the paragraph in which summary dismissal was sought) be listed for hearing at the same time as Mr Mbuzi’s application. At the hearing, the respondents stated that they did not press paragraph 2 of their interlocutory application. Further, they said that they did not press the balance of their interlocutory application. Accordingly, I will make an order that the respondents’ interlocutory application be dismissed (with no adjudication on the merits).

Background

7    The proceeding before the primary judge in which the recusal application was made was proceeding No. QUD 523 of 2023 (the Original Proceeding). That proceeding was commenced on 27 November 2023. The applicant is Mr Mbuzi. The respondents are Mr Wordsworth, Mr Callaghan and World Vision Australia. The proceeding is brought under the Fair Work Act 2009 (Cth) and relates to Mr Mbuzi’s alleged dismissal from employment with World Vision Australia. At all relevant times, Mr Mbuzi acted for himself (in other words, he did not have legal representation) in relation to the Original Proceeding.

8    On 29 January 2024, in anticipation of the first case management hearing (which was due to take place on 31 January 2024, before the primary judge), Mr Mbuzi filed an affidavit in which he referred to a previous proceeding in which the firm McCullough Robertson acted for the party that was opposed to Mr Mbuzi. Although not stated in the affidavit, it seems that the reason for filing the affidavit was that the primary judge had previously been employed by McCullough Robertson. Mr Mbuzi’s affidavit stated in part:

1.    I am the applicant in this matter who is without legal representation. Further, that law is not my field of study.

2.    Annexure marked “J” is a copy of a letter to me from McCullough Robertson Lawyers.

3.    That the legal firm mentioned in point 2 above represented debt collectors in Brisbane called Collection House whom I had sued jointly with St. George Bank which had sent them to be calling over alleged arrears of about $600.00 (six hundred dollars).

4.    That in the dispute mentioned in point 3 above, St. George Bank was represented by Gadens Lawyers.

5.    That although McCullough Robertson Lawyers engaged in bigotry towards me, and presented themselves to have superior legal knowledge than me, Judge Robyn made comments to the effect as follows: “I see there are two lawyers representing the bank, and then two other lawyers representing Collection House, yet I can’t make sense of what you are saying. Frankly, only Mr Mbuzi, who says he has not studied law, makes sense to me”.

6.    That both parties ended up paying me a combined amount of $62,000.00 (sixty two thousand dollars).

9    On 31 January 2024, the case management hearing took place before the primary judge. A copy of the transcript is in evidence before me. Mr Mbuzi appeared for himself. The respondents were represented by counsel (Mr Mackie) and solicitors. At the outset of the hearing, immediately after the parties had announced their appearances, Mr Mackie sought to hand up proposed orders and Mr Mbuzi objected to this on the basis that he, as the applicant, should be heard first. The following exchange (which is relevant to one of the proposed grounds of appeal) took place:

MR MACKIE: Your Honour, I have a draft copy of - - -

MR MBUZI: I think I’m going first, sir. I’m the applicant.

HER HONOUR: I think – all Mr Mackie is doing is telling me about some orders that he has got. Is that correct, Mr - - -

MR MACKIE: Yes, that’s correct.

HER HONOUR: Yes. Are these the drafts that were proposed by the respondent that I would already have copies of?

MR MACKIE: You have an email which sets out their content, but you do not actually have a document - - -

HER HONOUR: Okay.

MR MACKIE: - - - in an appropriate form, which this is.

HER HONOUR: Okay. All right. Could that please be handed up. Can you provide a copy for Mr Mbuzi. And then I will hear from you, Mr Mbuzi. This is just a clerical issue, making sure – administrative issue, rather – making sure that I’ve got a copy of a document that you’ve already seen. It has been provided to me, but it’s just in a different format. Okay.

10    Shortly after that exchange, Mr Mbuzi raised a “potential conflict of interest in relation to your Honour’s hearing this matter”. He therefore requested the primary judge to consider recusing herself (T3). Mr Mbuzi referred to his affidavit of 29 January 2024, which had been sent to the Court the day before the case management hearing (i.e., on 30 January 2024). Mr Mbuzi stated that his understanding was that the primary judge previously worked at McCullough Robertson and asked the primary judge to confirm if that was correct. Her Honour stated that she had worked at that firm. Mr Mbuzi then stated that he had a “very long dispute with” the primary judge’s former employer. Mr Mbuzi referred to a long-running dispute in the Supreme Court of Queensland in which McCullough Robertson acted for two parties that were opposed to Mr Mbuzi. He stated that the matter in the Supreme Court was remitted to the District Court. He stated that in the course of the proceeding, McCullough Robertson brought an application to quash Mr Mbuzi’s application, and that application failed. Mr Mbuzi said that subsequently the two parties obtained separate representation and McCullough Robertson continued to act for one of the parties (referred to as Collection House). Mr Mbuzi stated that the Court determined that both parties were liable to him, and he was awarded $62,000 (as referred to in his affidavit). Mr Mbuzi submitted that the primary judge’s determination of the Original Proceeding “would be influenced by [her Honour’s] former employers”. He submitted that “they engaged in a lot of bigotry” and that they were “very demeaning to me”. The gist of Mr Mbuzi’s submission was that the law firm would be embarrassed by Mr Mbuzi’s success in the litigation, given that he was not a lawyer. At the conclusion of this submission, the primary judge said that she would reserve her decision in relation to the application. Her Honour asked if there were any other points Mr Mbuzi wanted to raise at the case management hearing.

11    Mr Mackie indicated that the respondents opposed the application.

12    Mr Mbuzi then made some further brief submissions in response, referring to two Judges of the Supreme Court who had, at some point, represented Griffith University, which had been opposed to Mr Mbuzi in a matter relating to “wrong parking”. Mr Mbuzi stated that one of those Judges had recused herself on the basis that she had worked for a firm that represented Griffith University, even though she had not worked on the matter.

13    The primary judge then stated (in a passage relevant to one of the proposed appeal grounds):

HER HONOUR: Okay, thank you Mr Mbuzi. As you would be aware, it’s a matter for the – each judicial officer to decide for themselves in relation to this. So I will reserve my decision in relation to that. However, I will also give you seven days to get to me, copies of any authorities that you wish to rely on in relation to that, because you’ve just cited several authorities that you say would be very – of great assistance to me, that is the two Supreme Court decisions to which you’ve referred. So if you could provide them by the – let me just get the date – 7 February, that would be of much assistance to the court.

14    The case management hearing was then adjourned. The primary judge made an order dated 31 January 2024 that, by 4.00 pm on 7 February 2024, Mr Mbuzi provide any authorities which he relies upon in regard to the recusal application.

15    Although the order made on 31 January 2024 gave Mr Mbuzi permission to file a list of authorities, on or about 6 February 2024 he filed an affidavit dated 6 February 2024 in support of his recusal application. In other words, he sought to provide further evidence (and, to some extent, submissions) to support the application. The affidavit comprised 102 paragraphs over 19 pages, not counting annexures. It seems that the respondents did not object to the affidavit, and the primary judge had regard to it. The affidavit essentially relied on three grounds to contend that the primary judge should recuse herself:

(a)    first, the primary judge’s previous employment at McCullough Robertson;

(b)    secondly, the primary judge’s conduct during the case management hearing on 31 January 2024; and

(c)    thirdly, the “unusual and onerous” approach of the primary judge in dealing with Mr Mbuzi’s recusal application.

16    The affidavit dealt with the first ground at paragraphs 16-42. These paragraphs reiterated the points made by Mr Mbuzi at the case management hearing and added some further detail about the earlier proceeding in which McCullough Robertson acted for two parties (later, one party) against Mr Mbuzi. This section of Mr Mbuzi’s affidavit concluded:

41.    I verily believe that there is no lay person (non-lawyer) who would hesitate to conclude apprehension of bias in circumstances where a judge’s previous law firm stood on the opposite side fighting a litigant over whom the judge must now pass judgment. Further, especially that that judge’s side lost, not once, not twice, not three times, but four times. Additionally, that that judge’s side lost after boasting about its legal prowess, while denigrating the other side to have such inferior legal knowledge as to require the need for “seeking legal advice”.

42.    I fear, believe and suspect that if Judge Meagher were to preside in proceedings involving me, she would be motivated to save face, and exact revenge for the losses her then law firm suffered at my hands.

17    The affidavit dealt with the second ground at paragraphs 43-61. The gist of the complaint was that, at the outset of the hearing, and before Mr Mbuzi had spoken, the primary judge received the draft orders from Mr Mackie. Mr Mbuzi stated in his affidavit that, by so doing, the primary judge “sided with Mr Mackie”. Mr Mbuzi also complained that the draft orders were in fact different from the proposed orders previously indicated in an email from the respondents’ solicitors to the chambers of the primary judge.

18    The affidavit dealt with the third ground at paragraphs 62-102. The gist of the complaint was that, by ordering Mr Mbuzi to file a list of authorities within seven days, the primary judge had adopted an “unusual and onerous approach”. Mr Mbuzi stated that applications for recusal are generally dealt with “informally” and “there and then”. In oral submissions, Mr Mbuzi stated that in making this order, the primary judge was telling him to provide a basis for his position, but not telling the respondents to provide a basis for theirs (T23).

19    It seems that the respondents did not seek leave to file any evidence or submissions in response to Mr Mbuzi’s affidavit of 6 February 2024; nor did they seek to have the matter re-listed for further hearing.

The reasons for judgment of the primary judge

20    On 26 February 2024, the primary judge gave judgment on the recusal application. As indicated above, her Honour decided to dismiss the application.

21    The primary judge set out the principles relating to apprehended bias at [4]-[11] of her reasons for judgment, referring to Johnson v Johnson [2000] HCA 48; 201 CLR 488; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; 409 ALR 65, and other cases.

22    The primary judge considered Mr Mbuzi’s first ground (relating to the primary judge’s previous employment) at [13]-[21]. This section included a discussion of cases that 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 primary judge concluded this section of her reasons:

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 [Chief Operating Officer] 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.

23    The primary judge dealt with Mr Mbuzi’s second ground at [22]-[27] of her reasons. As noted above, this ground concerned the primary judge receiving draft orders from Mr Mackie at the outset of the hearing, before Mr Mbuzi (as applicant) had spoken. The primary judge reasoned:

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.

24    The primary judge dealt with the third ground at [28]-[34]. As noted above, this concerned the order that Mr Mbuzi provide a list of authorities. The primary judge referred to the context in which that order was made, namely, Mr Mbuzi’s references to instances of Supreme Court Judges recusing themselves. The primary judge noted that Mr Mbuzi’s affidavit dated 6 February 2024 identified certain cases. The primary judge referred to those cases, but did not consider them relevant. Her Honour concluded in relation to this ground:

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.

25    The primary judge made orders dated 26 February 2024 that: the recusal application be dismissed; and the costs of and incidental to the recusal application be costs in the proceeding.

The application for leave to appeal

26    Mr Mbuzi seeks leave to appeal from the primary judge’s decision (it being an interlocutory decision requiring leave). The application contains ten grounds. These are replicated in Mr Mbuzi’s draft notice of appeal. The ten grounds are:

1.    Serious error of making an order in a manner explicitly and expressly not allowed under either statue or case law.

2.    Lack of, and/or abuse of, jurisdiction on account of ground 1 above.

3.    Demonstrable and apprehended bias on account of grounds 1 and 2 above.

4.    Serious error of fact in baselessly and falsely naming and including solicitors that never participated in the Case Management Hearing (CMH) concerned.

5.    Complicit in, and perpetuation of, a lie by an opposing side’s barrister.

6.    Wrong application of the test for recusal.

7.    Drawing a skewed and self-serving conclusion from the case of QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) HCA 15.

8.    Discriminatory, onerous, and one-sided justification requirements.

9.    Forensic impropriety and unethical judicial conduct in receiving lobbying communication marked “private and confidential” from a representative of one party, without the consent or approval of the other party.

10.    Denial of procedural fairness on account of grounds 1, 2, 3, 4, 5, 6, 7, 8, and 9 above.

Applicable principles

27    The applicable principles for an application for leave to appeal are well established. The Court must consider: (a) whether, in all the circumstances, the decision at first instance is attended with sufficient doubt to warrant its reconsideration on appeal; and (b) whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 at 398-399 per Sheppard, Burchett and Heerey JJ. In Forte Sydney Carlingford Development Pty Limited v Forte Sydney Carlingford Pty Limited [2024] FCAFC 9 at [52]-[53], Markovic and Halley JJ stated:

52    Appellate courts are to exercise particular caution in reviewing decisions relating to practice and procedure: see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170 at 177. The restraining orders made by the primary judge which are the subject of this appeal are matters of practice and procedure.

53    That said, in Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238 a Full Court of this Court (Dowsett, Foster and Yates JJ) observed at [29] that, while the test set out in Décor is appropriate for the general run of cases, it should not be applied as if it were a hard and fast rule and each case must be considered on its merits. At [33]-[34] the Full Court said:

33    In Ex parte Bucknell, the High Court emphasised the importance of the Court considering the practical operation or effect of the interlocutory order from which leave to appeal is sought. Leave should readily be granted if, as a practical matter, the interlocutory order has the effect of determining the whole of the proceeding or an important issue in the proceeding.

34    In Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [53], Gummow and Hayne JJ said that, although the grant of an interlocutory injunction is a matter of practice and procedure, where matters of principle are involved, an appeal “stands somewhat above the ordinary appeal in a matter of practice and procedure”.

(Emphasis added.)

28    The applicable principles regarding apprehended bias are set out in the judgments of the High Court of Australia referred to by the primary judge: see, in particular, Johnson v Johnson [2000] HCA 48; 201 CLR 488 at [11] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

Consideration

29    I approach the question whether leave to appeal should be granted having regard to the practical importance of the primary judge’s decision in the context of the litigation at first instance.

30    In my view, subject to one matter (discussed below), the decision of the primary judge is not attended with sufficient doubt to warrant its reconsideration on appeal.

31    In relation to Mr Mbuzi’s first ground before the primary judge, there is no suggestion that the primary judge was involved in the matter in which McCullough Robertson acted for parties against Mr Mbuzi. In these circumstances, there is no logical connection between the facts and matters relied on by Mr Mbuzi (see [10] and [16] above) and the apprehended deviation from deciding the Original Proceeding on its merits.

32    In relation to Mr Mbuzi’s second ground before the primary judge, the mere fact that the primary judge received draft orders from Mr Mackie at the outset of the hearing, before Mr Mbuzi (the applicant) had spoken, is insufficient to suggest that the primary judge was siding with one side. Even if (as submitted by Mr Mbuzi) the draft orders handed up by Mr Mackie were different from those previously emailed to the primary judge’s chambers, the fact that the primary judge received the draft orders from Mr Mackie at the outset of the hearing does not suggest any lack of impartiality on the part of the primary judge.

33    In relation to Mr Mbuzi’s third ground before the primary judge, the order that Mr Mbuzi provide a list of authorities following the case management hearing on 31 January 2024 was prompted by Mr Mbuzi’s reference to his experience in another case where a Supreme Court Judge had disqualified herself on the basis of previous work for a party opposed to Mr Mbuzi. There is no basis to suggest that the order was onerous or that it indicated that the primary judge lacked impartiality.

34    Even if the three grounds are considered cumulatively, the result is the same.

35    At the hearing before me, and in his outline of submissions, Mr Mbuzi referred to a “lobbying communication” sent by the respondents’ solicitors to the chambers of the primary judge. According to Mr Mbuzi, the communication sought to have another matter (proceeding No. QUD 24 of 2024) also docketed to the primary judge. A copy of the communication is not in evidence before me. In an email to my chambers following the hearing, Mr Mbuzi stated that the communication was sent on 6 February 2024. It does not appear that Mr Mbuzi raised this matter with the primary judge (on or after 6 February 2024) as a further ground upon which she should recuse herself. Accordingly, it does not provide a basis to contend that the decision of the primary judge is attended with sufficient doubt to warrant its reconsideration on appeal.

36    For these reasons, subject to one matter (discussed in the next paragraph), the decision of the primary judge is not attended with sufficient doubt to warrant its reconsideration on appeal.

37    At the hearing of the application for leave to appeal, Mr Mbuzi contended that the primary judge’s costs order in relation to the recusal application (that the costs of the recusal application be costs in the proceeding) was in error, having regard to s 570 of the Fair Work Act. Section 570(1) provides that “[a] party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A”. I accept that there may be doubt about the correctness of the costs order in light of the terms of s 570. However, I do not consider that this provides a basis to grant leave to appeal because it is not apparent that there is any substantial injustice. First, it would be open to Mr Mbuzi to apply to the primary judge to vary the costs order, which is an interlocutory order: see r 39.05(c) of the Federal Court Rules 2011. It does not appear that the parties had the opportunity to make submissions on the form of the costs order before it was made. In these circumstances, it was, and would be, open to Mr Mbuzi to seek to have it varied. Secondly, assuming that, at the end of the proceeding, there is no order as to costs (consistently with s 570(1)), then there would be no substantial injustice.

38    It follows that the application for leave to appeal is to be dismissed.

39    Given that the application for leave relates to a matter arising under the Fair Work Act, and having regard to the terms of s 570 of that Act, I consider it appropriate that there be no order as to costs in relation to the application for leave to appeal. Despite the respondents’ submissions to the contrary, I am not satisfied that the matters in s 570(2) apply to the application for leave to appeal.

40    In relation to the respondents’ interlocutory application, in circumstances where there was no adjudication on the merits, I consider it appropriate that there be no order as to costs. A further reason for that costs order is s 570 of the Fair Work Act.

Associate:

Dated:    27 August 2024