Federal Court of Australia

Rindeklev v Commonwealth of Australia (Recusal Request) [2025] FCA 354

ORDERS

THE COURT ORDERS THAT:

1.    The applicant's recusal request is declined.

2.    A case management hearing be convened on a date to be fixed.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Ms Gunilla Rindeklev has brought two proceedings raising claims arising out of her employment by the Commonwealth. The two proceedings are being case managed together and have been listed to be tried together over 10 days commencing on 15 September 2025. The trial is of all issues in both proceedings save only that the quantum of any award of compensation or damages is to be determined at a subsequent hearing.

2    Both proceedings were commenced in 2022. Throughout all the interlocutory stages, I have been the case managing judge. I am allocated to be the trial judge.

3    The first proceedings (WAD156/2022) advance claims under the Work Health and Safety Act 2011 (Cth) and the Fair Work Act 2009 (Cth). The claims under the Work Health and Safety Act relate to an alleged health and safety risk posed to Ms Rindeklev by the conduct of another employee. They are framed as a civil claim for alleged discriminatory conduct said to have been engaged in for a prohibited reason. The claims under the Fair Work Act are for alleged misrepresentation and adverse action. The application seeks compensation, exemplary damages and pecuniary penalties.

4    The second proceedings (WAD165/2022) advance adverse action claims under the Fair Work Act and a claim based upon alleged incitement. The application seeks compensation, exemplary damages, an apology and pecuniary penalties.

5    A conference before a registrar convened for the purpose of identifying the issues in the proceedings resulted in a list of issues for determination in each of the two proceedings. Orders have been made for the list of issues to supersede the pleadings as the means of identifying the matters in issue. In certain respects, the lists of issues identify particular paragraphs in the pleadings as the paragraphs that give rise to the issues. Therefore, to that extent, reference to the pleadings may be appropriate in order to understand matters stated in the list of issues. However, the trial of both proceedings is to be undertaken on the basis that the issues for determination are those stated in the registrar's lists of issues.

6    On 19 December 2023, Ms Rindeklev provided particulars of loss and damage. The particulars for each of WAD156/2022 and 165/2022 included the following statement:

To remove doubt, this is not a personal injury claim, nor for a Total and Permanent Injury incapacity, (TPI), nor for lost wages due to a mental illness or any such related loss or expenses.

7    The last case management hearing was conducted on 30 January 2025. Much of the hearing was concerned with a notice to produce that Ms Rindeklev proposed to deliver to the Commonwealth in WAD165/2022. Relevantly for present purposes, it also dealt with the effect of the list of issues upon the pleadings in the proceedings.

8    The approach of formulating a list of issues through a process of conferral was established at a case management hearing on 12 September 2023: James v Commonwealth of Australia [2023] FCA 1241 at [18]-[23]. At that time, I explained that the process for identification of the issues 'would mean that the statement of issues would, in a way, take over from the pleading (that is the statement of claim and the defence) and the Court would use the statement of issues to make sure that it recorded all the questions that the Court was being asked to determine'.

9    The process led eventually to a conference before a registrar which resulted in the formulation of a list of issues in each of the proceeding. Subsequently, at a case management hearing on 30 July 2024, Ms Rindeklev said that she was reasonably happy with how the process had transpired and that she was quite happy to go forward on the basis of the list of issues. At that time Ms Rindeklev indicated that she was happy because the list of issues 'takes out my personal injury claim' and 'also takes out the discrimination based on disability or mental disability'.

10    Some additional matters were raised which led to subsequent further refinement and revised versions of the lists of issues were provided on 29 August 2024.

11    Since then, Ms Rindeklev has indicated that she does seek to advance a claim for personal injury as part of WAD165/2022. The precise nature of that claim will require clarification.

12    Separately to the two proceedings, Ms Rindeklev brought an appeal in this Court in respect of a decision by the Administrative Appeals Tribunal (WAD227/2023). The proceedings in the Tribunal concerned two claims that Ms Rindeklev had made for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) for workplace mental health injuries. Ms Rindeklev had sought to review two decisions as to those claims to the effect that the Commonwealth was not liable to pay compensation. Subsequently, Ms Rindeklev withdrew the applications for review. Then, about six months later, she sought their reinstatement. Her applications for reinstatement were refused by the Tribunal.

13    I determined that the appeal to this Court in respect of the Tribunal's decision to refuse reinstatement should be dismissed: Rindeklev v Comcare [2024] FCA 1023.

14    Ms Rindeklev also made a complaint to the Human Rights Commission arising from circumstances in which a witness statement had been provided by Comcare as the respondent to the Tribunal proceedings. Ms Rindeklev claimed that the action of Comcare in filing the witness statement was sexual harassment and intimidation and that it caused her to withdraw her claims in the Tribunal. Her complaint to the Commission was terminated on the basis that it was misconceived or lacking in substance. Ms Rindeklev sought leave to advance a claim of unlawful discrimination in this Court (WAD6/2024). I determined that leave should be refused: Rindeklev v Comcare [2024] FCA 804. Ms Rindeklev then sought leave to appeal against my decision (WAD217/2024). Her application for leave to appeal was dismissed: Rindeklev v Comcare [2025] FCA 291 (Feutrill J).

Ms Rindeklev's recusal request

15    Against that background, Ms Rindeklev says that I should now recuse myself from any further hearing of the two proceedings (being WAD156/2022 and WAD165/2022). Ms Rindeklev has filed a written submission in support of that request. It makes the following claims as to why it is appropriate for the further hearing of the two proceedings to be conducted by another judge:

(1)    at the case management hearing on 30 January 2025 I suggested to the Commonwealth that they think about (as a defence) whether Ms Rindeklev can claim personal injury at all;

(2)    a determination made in WAD6/2024 that certain conduct is not sexual harassment means that I will not bring an open mind to the resolution of the issues in the two proceedings that concern alleged sexual harassment;

(3)    there is a notion that is acting in the background within the Court that Ms Rindeklev is a vexatious complainant;

(4)    there was disrespectful conduct by my associates on two occasions in the course of submissions being made by Ms Rindeklev at case management hearings; and

(5)    complaints about the approach that has been adopted as to the role of the statement of claim in the future conduct of the proceedings and the need for an 'arc of pleadings'.

16    Ms Rindeklev's written submission in support of recusal concludes:

The best thing is for Justice Colvin to recuse himself, and I am not making this request for the first time and I do not take it lightly. The previous judgments have shown me some real prejudice and bias and I wish now for Justice Colvin to not sit on another case of mine, I deserve a fair process and so does the process itself.

Relevant principles

17    In order to establish actual bias on the basis of prejudgment it must be demonstrated that the judge is 'so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented': Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [71]-[72] (Gleeson CJ and Gummow J). Prejudgment of that kind must be firmly established: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100 (Gaudron and McHugh JJ).

18    Although Ms Rindeklev's submission at times was expressed in terms of actual bias, the only matter that appears to be advanced to support such a claim is the outcomes of the 'previous judgments'. It is a fallacious argument to reason that because the outcomes of previous decisions made by a judge have been adverse to a party that there is bias against that party: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [67] (Gummow ACJ, Hayne, Crennan and Bell JJ).

19    Therefore, I approach the recusal request on the basis that it seeks to invoke principles of apprehended bias.

20    The relevant principles to be applied are well-established. They were stated by the High Court in Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289 at [11]‑[12] in the following terms:

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.

As five judges of this Court said in Johnson v Johnson, while the fair‑minded lay observer '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'.

(footnotes omitted)

21    As to the apprehension of bias that may be said to arise from past decisions by a judge, the following statement by Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 must be borne in mind:

It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.

22    It is also important to bear in mind the duty of judges to hear cases they have been allocated. The duty was expressed in the following way in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [19]-[20] (Gleeson CJ, McHugh, Gummow and Hayne JJ):

Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.

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.

23    With those principles in mind, I turn to the matters raised by Ms Rindeklev.

The case management hearing on 30 January 2025

24    At the case management hearing on 30 January 2025, in the course of seeking to explain to Ms Rindeklev the status of the list of issues and its role for the conduct of the final hearing, I said:

But at the end of the day, the purpose of the statement of issues was to clarify, refine and focus, and so that has to stay in place. And so if there are – as I say, if you feel like there are things in the statement of issues that are not adequately capturing what your case is, then you should propose the additions to the respondent. I mean, the respondent has already agreed to changes of that kind. We had one round of that where, after they were agreed, some things were added in, and there’s the personal injury aspect of matters.

25    On my review of the transcript, the above statement was the only reference during the course of that hearing to the personal injury aspect of the claim. It reflected the fact that the list of issues had been prepared on the basis that there was no personal injury claim, but subsequently Ms Rindeklev had sought to include such a claim. The statement I made did not suggest to the Commonwealth any particular approach to that aspect nor did it indicate that I had formed any particular view in that regard.

26    I am not persuaded that a fair-minded lay observer would form the view that Ms Rindeklev suggests. It remains a matter that needs to be addressed.

Determination in WAD6/2024

27    In the course of my reasons in Rindeklev v Comcare [2024] FCA 804, I described the alleged sexual harassment in the following way at [19]:

So, in the circumstances described above, the conduct that Ms Rindeklev says amounts to sexual harassment is the conduct of Comcare (by its lawyers) in submitting the witness statement with the offensive paragraph and seeking to rely upon it in the second application in circumstances where, so Ms Rindeklev contends, viewed objectively, the matters in that paragraph were not relevant (Comcare's Conduct). Further, for reasons I have explained, for present purposes her allegation must be approached on the basis that there is a reasonable basis to support her claim that the matters in the offending paragraph were irrelevant to the proceedings before the Tribunal but Comcare (by its lawyers) thought they were relevant.

28    The principal contentions advanced by Comcare in answer to Ms Rindeklev's application for leave were that the conduct described above could not satisfy the definition of sexual harassment and Comcare was protected from suit by reason of the doctrine of witness immunity: at [29]. As to those propositions, I said at [30]:

Those two contentions amounted to legal propositions which, if accepted, would mean that the application that Ms Rindeklev seeks to bring could not succeed. Further, an evaluation of the merits of those contentions did not depend upon an evaluative assessment that might be aided by hearing a more detailed account of what had occurred. Rather, they amounted to legal propositions which were said to stand in the way of Ms Rindeklev's claims. If either contention is established then it must follow that the proposed application lacks sufficient merit to support the grant of leave. In those circumstances, it is appropriate for the merits of each of Comcare's principal contentions to be considered closely.

29    As to whether the alleged conduct, if established, would be sexual harassment, I concluded at [36]:

The filing of the witness statement and the taking of steps to seek to rely upon the statement in the proceedings is accepted to be the act of Comcare (by its lawyers). It was conduct that lacked any contextual aspect to support a claim that it is sexual in nature. Both by reason of its character and context, it is depersonalised. Further, it is not conduct that involves acting in a sexual way or which involves a form of communication that might be described as containing sexualised or gender-based insults or taunts. It is conduct about sexual matters, but the mere act of uploading the statement and seeking to rely upon it for the purposes of the Tribunal proceedings is not sexual in nature. Even if, as Ms Rindeklev contends, the statement was irrelevant, there is no suggestion as to how that (disputed) aspect, as a contextual matter, might support a conclusion that the conduct complained of was of a sexual nature.

30    It can be seen that the conclusion reached was a legal one that dealt with the very specific circumstances attending the filing of an affidavit in the Tribunal proceedings.

31    Ms Rindeklev now says: 'The notion of sexual harassment as bullying and mistreatment post-decision in two workplaces is the core of my claims and an unavoidable subject'. On that basis she contends that the issue decided in WAD6/2024 is to be decided again in the two proceedings. I do not accept that to be the case. The decision in WAD6/2024 concerned conduct that is not in issue in the two proceedings. It involved no findings concerning the events in fact. It involved a determination of a legal question that is entirely distinct from the subject matter of the two proceedings.

32    I am not persuaded that a fair-minded lay observer would have any apprehension that the conclusions I reached in WAD6/2024 (in discharging my judicial function to decide the limited and distinct legal issue there raised) would mean that I would not bring an impartial mind to the issues for determination in the two proceedings.

Alleged background view within the Court that Ms Rindeklev is a vexatious complainant

33    One of the issues to be determined at the trial of the two proceedings concerns whether Ms Rindeklev was properly described as a vexatious complainant. The adjudication of that aspect of the case will depend upon the evidence as to what occurred at the time and any relevant legal submissions.

34    The way in which the proceedings have been conducted in this Court by Ms Rindeklev is a different matter. It is not an issue upon which I have been asked to adjudicate. The matters relied upon to support the contention that 'the notion of being accused [of] being a vexatious complainant spilled …, like a contagion, into a lingering disbelief about my actual legal claim in the present cases' concern alleged conduct by a registrar, by senior counsel for the Commonwealth and by my associates. As to alleged conduct by my associates, that is addressed separately below.

35    The only matter that I understand to be raised in respect of my own conduct to support the contention is a statement attributed to me to the effect that 'we are not going into all the complaints'. I have already dealt with a recusal application in respect of that allegation: James v Commonwealth of Australia at [31]-[36]. As I there explained (at [32]):

It is the case, as I have indicated in these reasons, that I have expressed concern that there were many complaints raised in the proceedings and that there needed to be a process by which the main things the subject of complaint were separated from some very minor matters that had been identified. I have also expressed concern that a considerable number of notices to produce have been issued and I have made a direction that no further notices be issued and any further request for disclosure be made by way of application for discovery so that the extent of any such requests can be supervised by the Court.

36    There is no proper foundation for the contention that some view has been formed in the background that would cause a fair-minded lay observer to conclude that I might not bring an open mind to the resolution of the issues in the two proceedings insofar as they concern whether vexatious complaints were made by Ms Rindeklev to her employer.

Alleged conduct by associates

37    Ms Rindeklev advances the contention that 'staff were being disrespectful sitting on the tier below'. Noting its lack of proper evidentiary foundation, it is expressed in the following way: 'I cannot remember the details but it was eye-rolling and glances and scoffs and the like when Justice Colvin said "you seem to have made many complaints"'. I have dealt with the alleged statement about Ms Rindeklev making many complaints that is attributed to me. It was addressed in my reasons in James v Commonwealth of Australia and concerns events that occurred some 18 months ago. The allegations concerning my associates are placed at the same time.

38    Taking the allegation now made at its highest, it concerns two occasions in case management hearings that occurred some 18 months ago in a proceeding in which there have been many case management hearings about which no such complaint has been raised. It concerns alleged conduct by my former associates and not by me. I am now assisted by other associates. The matters that were said by me at the time have been addressed in previous reasons in which I have concluded that they were not a basis for recusal. Even if there was evidence to establish the matters alleged, I am not persuaded that reliance upon them affords a basis upon which I should recuse myself. I consider the matter identified to be insubstantial.

39    Although I have addressed the contention of Ms Rindeklev on the basis that the claims made were established, I stress that there has been no evidence filed and I express no view as to what in fact occurred.

Complaints about the approach to the role of the statement of claim

40    The submissions suggest that some aspect of my approach to the pleading in the course of case management hearings supports a conclusion of bias or apprehended bias on my part. I have explained the course of my approach to identifying the issues for determination in the two proceedings. I am not persuaded that any aspect of that approach gives rise to any concern that I have expressed some form of conclusion that Ms Rindeklev is a vexatious complainant.

Conclusion, outcome and orders

41    For reasons I have given, and having considered the detail of Ms Rindeklev's written submission for recusal dated 4 April 2025, I am not persuaded that any of the matters referred to by Ms Rindeklev are a basis for me to conclude that a fair‑minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the issues for determination in the two proceedings.

42    Accordingly, I do not propose to disqualify myself from the further conduct of the two proceedings.

43    I note that the submission made articulates a concern about the current state of the proceedings when it comes to Ms Rindeklev advancing a claim for personal injury. Given the terms in which the particulars of loss and damage are currently expressed, I consider it appropriate to convene a case management hearing for the purpose of considering the following matters:

(1)    the identification of any appropriate revisions to the list of issues to reflect the position in relation to claims of personal injury;

(2)    the identification of the precise terms of relief that will be sought by Ms Rindeklev at the final hearing;

(3)    the clarification of the position in relation to pecuniary penalties; and

(4)    an update as to the current state of preparation for the final hearing listed to commence on 15 September 2025.

44    I will arrange for my associate to contact the parties as to a convenient date for such a case management hearing.

Associate:

Dated:    10 April 2025