Federal Court of Australia

Thompson v Registar Ellis [2025] FCA 296

ORDERS

THE COURT ORDERS THAT:

1.    The following proceedings be referred to the National Operations Registrar for the purposes of reallocation to another judge of the Court:

a. Emma Narelle Cathryn Thompson v Registrar Ellis (QUD 699 of 2024)

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

REASONS FOR JUDGMENT

MEAGHER J

1    This matter purports to be an appeal against a decision and orders made by another Judge in two proceedings, QUD419 of 2023 and QUD420 of 2023, respectively.

2    The matter was allocated to my docket and set down for a first case management hearing on 17 February 2025. At that case management hearing I recused myself from hearing the application. These are my reasons for so doing.

3    The appellant is a litigant in person. There was properly no appearance by the respondent, who has subsequently filed a submitting notice.

4    In the notice of appeal, the appellant claims that the primary judge:

… failed to identify that the letter of solicitor, Charles Londy of Londy Lawyers dated 22 July 2020 confirms that the legal proceedings in which Grace Lawyers represented Body Corporate for Arila Lodge CTS 14237, are absent jurisdiction and the legal costs are invalidly claimed.

5    Shortly before the first case management hearing, my associate brought to my attention that Mr Charles Londy has a very close, long standing, and ongoing quasi familial relationship with her and her family.

6    At the case management hearing, I advised the appellant of that relationship. In that regard, it is instructive to see my judgement in QUD709 of 2024, in which the first case management hearing in that matter occurred immediately prior to this case management hearing. In relation to this matter, the appellant submitted, in response to my question regarding Mr Londy’s relevance to this matter, as the case management hearing transcript discloses:

MS THOMPSON: Yes, he is in – because this matter is primarily about costs and costs relate to the 20-page letter that Mr Londy provided because he absolutely confirms that there is no valid basis for a costs order to be made, and I provided Mr Londy’s letter to her Honour. Although she doesn’t reference it at all in her decision, it was provided.

7    It is well established that not only must a judge be unbiased, but importantly for this case, must be seen to be unbiased. In that regard, the High Court observed in Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at [11]:

Apprehended bias

Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute. The apprehension of bias principle is that “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”. The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, “it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits”; and, secondly, there must be articulated a “logical connection” between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.

(Emphasis in original and footnotes omitted.)

8    The test as to whether a judge ought recuse him or herself on the basis that there may be an apprehension of bias attached to the hearing of a matter is set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ:

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.

(Footnotes omitted.)

9    In Ebner, the plurality also observed at [7] – [8]:

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.

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.

(Emphasis in original.)

10    While it is well accepted that judges have a duty to sit, the plurality in Ebner also stated at [20]:

This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.

11    The approach to be taken was considered in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419; [2023] HCA 15 at [38] – [39] per Kiefel CJ and Gageler J, as his Honour then was:

Application of the criterion was identified in Ebner, and has been reiterated, logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.

Ebner specifically rejected the notion that there exists a category of case, involving some “interest” or “association” on the part of a judge, in respect of which an apprehension of bias will be presumed without needing to undertake such an analysis in order to determine that the criterion is satisfied. The submission by the appellant that this Court should now recognise “incompatibility” between the judicial role and another role previously performed by a judge as a category of “interest” in respect of which an apprehension of bias will be presumed is irreconcilable with Ebner and must be rejected.

(Footnotes omitted.)

12    In Greensill Bank AG v Insurance Australia Limited [2025] FCA 95 at [15], Moore J stated “[t]hat reasonable minds may differ” in the application of the third step of the Ebner test, as expounded by Kiefel CJ and Gageler J, as his Honour then was, at [38] of QYFM.

13    In this case, the relevant factor is one of association, namely that of the close association between my associate, who is integral to the operation of my chambers, and a party named in the notice of appeal, whose evidence the applicant asserted will be critical to her appeal.

14    In QYFM, the attributes of a fair-minded lay observer were considered at [47] – [49] by Kiefel CJ and Gageler J, as his Honour then was, 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.)

15    I have also had regard to the prudential principles referred to in QYFM and the acknowledgement that a judge might recuse him or herself at an early stage of a proceeding in order to avoid costs being incurred unnecessarily and possible further delay.

16    In that regard, I considered the statements of Gordon J at [97] of QYFM, in which her Honour said:

Second, there are prudential reasons. It is not improper for a judge to decline to sit without having affirmatively concluded that they are disqualified – in a case of “real doubt”, a judge may take the prudent course of deciding not to sit. The procedure adopted should not prevent a judge from taking that prudential (and practical) approach and deciding to recuse themselves in a case of real doubt, even if they and their colleagues on the Court were to ultimately conclude that the judge is not disqualified.

(Footnotes omitted.)

17    The comments of Edelman J at [129] of QYFM are also instructive, as his Honour stated:

As to the prudential and pragmatic reasons for the subject judge to make the determination concerning bias, this Court recognised in Ebner v Official Trustee in Bankruptcy that there may be circumstances in which a judge will decline to sit even if the judge has not affirmatively concluded that they are disqualified. This is sometimes described as a prudential principle. Prudence is a loose term which encompasses a value judgment based upon a combination of factors: the misnomer “duty to sit”, which is really a principle that a judge should not too readily disqualify themself, particularly where there is not a large pool of available alternative judges; and case management concerns including delays, and other issues including the inconvenience that might result if, after a lengthy trial, a finely balanced decision not to recuse were found on appeal to be incorrect.

(Footnotes omitted.)

18    Finally, in relation to the prudential reasons for recusal at [330] of QYFM Jagot J said:

For example, if the issue emerges at an early stage and is apparently arguable, court management practices generally operate, quite properly, to avoid wasting resources of parties on a satellite issue by the expedient of allocation of the case to a judge not subject to the issue. Courts, including this Court, have also routinely endorsed the prudent approach of judicial self-exclusion at an early stage, if possible, because litigation of satellite issues at the expense of parties may involve nothing but unnecessary delay and cost. Equally importantly, however, parties do not get to choose their judge, either directly, or indirectly by specious or trivial allegations of bias. As noted, judges have a duty to sit. And they have a duty of fidelity to the law and to their judicial oath or affirmation. To add to the potential complexity, judges and parties do not always know about an alleged bias issue in sufficient time to avoid formal judicial determination of the issue. Or there may be important considerations of principle or fairness to the parties and other litigants in having the question of bias resolved only after a hearing and by formal judicial determination. The potential factors in play are infinite. They may be transformed on constitution of the court or commencement of the hearing, but do not necessarily all cease at that moment.

(Footnotes omitted.)

19    Given the material before the Court contained in the notice of appeal, and the matters referred to above, I am of the view that a fair-minded lay observer might reasonably have concerns as to whether I can bring an impartial mind to the matters which might be before me in this case.

20    Accordingly, the first case management hearing has not proceeded.

21    The matter should be referred to the National Operations Registry for reallocation to another judge.

Associate:

Dated: 31 March 2025