Federal Court of Australia

Mbuzi v World Vision Australia [2025] FCA 466

ORDERS

THE COURT ORDERS THAT:

1.    The recusal application be dismissed.

2.     The matter be set down for a case management hearing 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

MEAGHER J

INTRODUCTION

1    This is an application seeking my recusal from the proceedings in QUD24/2024, wherein the applicant sought relief under the Fair Work Act 2009 (Cth), against World Vision Australia and others.

2    For the reasons that follow, the applicant’s application for my recusal is dismissed.

BACKGROUND

3    In QUD523/2023, the applicant lodged an originating application on 27 November 2023 against World Vision Australia and two natural person respondents for contraventions of the Act. In that originating application, the applicant sought a mandatory injunction, damages, pecuniary penalties and declarations pursuant to ss 545(1) and (2), 546, 539(1) and (2) and 550(2) of the Act.

4    The applicant filed an affidavit, sworn on 29 January 2024, and made an oral application during the first case management hearing held on 31 January 2024, seeking my recusal (the first recusal application). The first recusal application was decided on the papers, and judgement delivered on 26 February 2024. The application was dismissed.

5    The applicant sought leave to appeal that decision, and by the Court’s order, on 25 March 2024, the matter in QUD523/2023 was stayed, until the final disposition of that matter: Mbuzi v Wordsworth (Recusal Application) [2024] FCA 132.

6    On 1 August 2024, the appeal was heard by Moshinsky J. His Honour ordered that the applicant’s application for leave to appeal be dismissed. No order as to costs was made.

7    On 21 December 2023, the applicant lodged an originating application in this matter QUD24/2024. This application sought declarations and orders pursuant to ss 340, 545(1) and (2), 546, 539(1) and (2), 550(2) and 117(2)(a) and (b) of the Act, in respect of an unlawful termination against World Vision Australia and five natural person respondents, all different from the natural person respondents in QUD523/2023. There would appear to be considerable overlap between the subject matter of the litigation in QUD523/2023 and QUD24/2024.

8    At the commencement of the first case management hearing in QUD24/2024 on 25 March 2024 the applicant made an oral application for my recusal, in respect of which he lodged submissions on 2 October 2024. The respondent lodged submissions on 16 October 2024.

LEGAL PRINCIPLES

9    The relevant legal principles to consider in a recusal application are as follows.

Reasonable Apprehension of Bias

10    In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15, Kiefel CJ and Gageler J stated the test for reasonable apprehension of bias at [37] – [38]:

The criterion for the determination of an apprehension of bias on the part of a judge was definitively stated in Ebner by reference to previous authority and has often been repeated. The criterion is whether “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 “double might” serves to emphasise that the criterion is concerned with “possibility (real and not remote), not probability”.

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.

(Footnotes omitted.)

11    See also QYFM at [67] (Gordon J), [221] (Gleeson J) and [274] (Jagot J).

12    The Court in QYFM affirmed the approach taken in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63. The test requires two steps as outlined at [8] of Ebner:

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.

13    To satisfy the second step, there must exist “a cogent and rational link between the association and its capacity to influence the decision”: Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 65 FCR 215 at 224.

14    There must also be a consideration of the meaning of each “might” within this “double-might test”: Burgess v Minister for Immigration and Border Protection (2018) 259 FCR 197; [2018] FCA 69 at [34] – [36]. Charlesworth J explained at [35] of Burgess that:

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.

15    Further, Charlesworth J noted at [36] of Burgess that:

… It is not sufficient to demonstrate that the observer may have “a vague sense of unease or disquiet” on the question: Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424 (Jones) at [100] (Weinberg J).

16    In QYFM, a third step was enumerated; the reasonableness of the asserted apprehension of bias must be considered: at [38] (Kiefel CJ and Gageler J), [67] (Gordon J), [225] (Gleeson J), [275] (Jagot J).

17    Indeed, the High Court in Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [13] considered that:

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.

(Footnotes omitted.)

18    When considering the characteristics of a fair-minded lay observer, the summary by Kiefel CJ and Gageler J in QYFM at [47] – [49] is helpful:

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.)

19    Additionally, Jagot J’s statements at [273] of QYFM are useful:

Judicial decision-makers must be, and must be seen to be, impartial and independent. These are constitutive elements of the “skeleton of principle” which shapes the common law of Australia. In ensuring that justice is seen to be done, the law insists that the relevant perspective is not that of judges or lawyers. The relevant perspective is that of the “fair-minded lay observer”. This hypothetical observer is taken to be 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 doing “right to all manner of people according to law without fear or favour, affection or ill will”.

(Footnotes omitted.)

submissions

20    The applicant submitted five grounds upon which he seeks my recusal. These include:

(1)    The applicant’s lodgement of an application in the High Court of Australia, which lists me as a defendant;

(2)    The receipt of a “lobbying letter” by my Chambers, from Corrs Chambers Westgarth, which spoke to the applicant’s matter prior to its assignment to my docket;

(3)    My “association/ or relationship with the second respondent”, Ms Elisa Lurato, in this matter;

(4)    My costs order against the applicant, which the applicant sought leave to appeal before Justice Moshinsky, on the basis that it was “unlawful”, “a substantial injustice” and “an improper exercise of the power of a judge”; and

(5)    The applicant’s “administrative complaint” to the Chief Justice of the Federal Court of Australia.

21    The applicant submitted that the above matters are such that “one would have to be either deliberately blind to facts, or dishonest, not to perceive apprehension of bias”.

22    The respondents submitted grounds to oppose my recusal. These include:

(1)    The applicant did not raise his application to the High Court of Australia in his second recusal application, or his supporting affidavit of 17 September 2024. There is a “real question as to whether it is a ground that should now be entertained”. Even so, the respondents submitted that “[j]udicial decisions are appealed as a matter of course” and the reasonableness of the applicant’s assertion of bias must be considered within the framework of usual judicial practice;

(2)    The receipt of correspondence from the respondents’ solicitors to the Judge’s Chambers is unexceptional in the circumstances. The correspondence was not “sent secretly” and the applicant was included in the correspondence. No decision was made regarding the correspondence;

(3)    The applicant’s submission regarding Her Honour’s previous employment, which coincided with the second respondent’s period of employment in the same place of business, was addressed at the case management hearing on 25 March 2024. There is “no evidence” of a “working relationship”. It is an “abuse of process” for the applicant to raise this in the second recusal application, considering the principles of Anshun Estoppel;

(4)    The applicant’s assertion that Justice Meagher made an “unlawful” and substantially unjust costs order, and that Justice Moshinsky’s findings in Mbuzi v Wordsworth [2024] FCA 977 support this, are “misconceived”. The costs order was “entirely appropriate and orthodox”; and

(5)    The applicant’s complaint to the Chief Justice regarding Justice Meagher was not raised in the second recusal application, and the “mere making of that complaint does not warrant recusal”. The outcome is unknown, and parties cannot be allowed to “manufacture apprehended bias”.

consideration

23    I will consider each ground in turn.

Ground 1 – High Court of Australia Application

24    On 12 February 2025, the Court wrote to the applicant (copying the respondents) seeking an update as to the status of his application to the High Court of Australia, noting that the copy of the application attached to his affidavit of 2 October 2024 did not on its face show that it had been accepted for filing. On 12 February 2025, the applicant responded advising of the further steps he was taking to have the application filed and seeking information regarding the progress of his application that I recuse myself. On 2 April 2025, the applicant wrote to the Court advising that “I have decided not to proceed with my High Court application” as “I am not convinced that the requirement given by the High Court Registrar, Griffin, that I include other parties who are not officers of the Commonwealth government would help my case”.

25    Accordingly, it is no longer necessary to consider this ground.

Ground 2 – The Letter from Corrs Chambers Westgarth

26    The applicant submitted that the letter sent by Corrs Chambers Westgarth was a “private and confidential lobbying letter”. He submitted that I was “infected with bias” and could not “truthfully be expected to have neutrality in the matter”.

27    Once again, the test for a reasonable apprehension of bias requires a factor which could influence a decision-maker to find an outcome not based on legal and factual merit: QYFM at [38] (Kiefel CJ and Gageler J), [67] (Gordon J); Ebner at [8].

28    The letter, dated 6 February 2024, was in relation to the applicant’s failure to accompany his originating application in QUD523/2023 with a s 368(3)(a) certificate, which is a jurisdictional requirement of s 370 of the Act.

29    The Central Practice Note: National Court Framework and Case Management (CPN-1) provides guidance on the appropriate communication with the Court. Communication must be “open and uncontroversial”: 15.2 of the CPN-1. In the Court’s Guide to Communications with Chambers Staff, parties are encouraged to consider if their communication is “necessary and appropriate”, being “consistent” with the Court’s overarching purpose in s 37M(1) of the Federal Court of Australia Act 1976 (Cth). This requires the facilitation of the “just resolution of disputes”, undertaken “according to law” and “as quickly, inexpensively and efficiently as possible”: s 37M(1) of the Federal Court of Australia Act 1976 (Cth).

30    In this context, the letter is an uncontroversial communication with the Court, which raises an issue regarding a procedural requirement necessary for the applicant’s matter. The applicant was copied into the letter, so there is no element of secrecy. The communication is transparent. Further, a Judge’s Chambers merely receiving communication, even if inappropriate, does not immediately taint a Judge’s ability to make a decision based upon the legal and factual merits. Moreover, I have made no decision regarding the respondents’ letter and its contents. The mere receipt of this correspondence cannot constitute a factor which could influence a decision-maker to find an outcome not based on legal and factual merit: QYFM at [38] (Kiefel CJ and Gageler J), [67] (Gordon J); Ebner at [8]. Consequently, the applicant’s second ground cannot sustain an assertion that “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”: QYFM at [37] (Kiefel CJ and Gageler J), [67] (Gordon J), [274] (Jagot J).

Ground 3 – Previous Employment

31    The applicant’s third submission related to my previous employment, which, the applicant asserted, coincided with the second respondent’s employment at the same place of business. The applicant took issue with an “association/ or relationship” between myself and the second respondent.

32    The respondents submitted that the applicant’s submission was an “abuse of process”, on the basis that the applicant should have raised the ground in his first application. The respondents also submitted that the doctrine of Anshun Estoppel should operate to preclude the applicant from raising this ground, on the basis that the applicant had already raised a sufficiently similar ground in the first recusal application.

33    Anshun Estoppel was recently described by O’Bryan J in Orikan Group Pty Ltd v Vehicle Monitoring Systems Pty Ltd (2023) 177 IPR 319; [2023] FCA 1031 at [26] – [27] in the following terms:

Anshun estoppel

Anshun estoppel operates to preclude the making of a claim, or the raising of an issue of fact or law, in a subsequent proceeding if the claim or issue was so connected with the subject of an earlier proceeding that it would have been unreasonable, in the context of the earlier proceeding, for the claim not to have been made or the issue not to have been raised in that proceeding.

As observed by Ormiston JA in Gibbs v Kinna (1999) 2 VR 19 (Gibbs) at [1], the double negative present in the formulation of the test for Anshun estoppel is significant. The relevant question is not whether it would have been reasonable to rely on a particular defence or cause of action, or to have raised an issue, in the earlier proceeding; rather, the question is whether it was unreasonable to defer doing so. The assessment of unreasonableness depends not so much on legalities, as on practicalities.

(Emphasis in original and citations omitted.)

34    The relevant principles regarding an abuse of process were recently described by Halley J at [149] – [151] in Sheehy v Nuix Pty Ltd (2023) 166 ACSR 528; [2023] FCA 56, as follows:

Abuse of process

Abuse of process may be invoked in areas in which estoppels also apply, although it is “inherently broader and more flexible than estoppel”. For example, the failure to make a claim or raise an issue in an earlier proceeding, which ought reasonably to have been made or raised in the earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel.

The circumstances when the Court will have the power to stay proceedings as an abuse of the process of the Court are incapable of being distilled into closed categories. Rather, the Court’s power can be enlivened in circumstances “where the use of the court’s procedures occasion unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute”.

The onus of satisfying the Court that there is an abuse of process is a “heavy one” and it falls on the party asserting the abuse of process.

(Emphasis in original and citations omitted.)

35    In these circumstances, the applicant’s submissions do not relate to substantially the same underlying factual matrix, as that heard in Mbuzi v Wordsworth (Recusal Application). There are different respondents, and the details of the submissions are different. In Mbuzi v Wordsworth (Recusal Application), the focus was on my relationship with a law firm, whereas in this application, the focus is on my “working relationship” with the second respondent at another place of mutual employment. The mere fact that the heart of the submissions goes to the same general issue – whether my previous employment could give rise to a reasonable apprehension of bias – does not give rise to an argument that the applicant acted unreasonably in failing to raise the matter in Mbuzi v Wordsworth (Recusal Application). Nonetheless, there is no need to decide this point conclusively as the submission lacks substantive merit.

36    The applicant has not filed any evidence in support of his submission, except for a reference to the transcript of the case management hearing on 25 March 2024, in which he raised this ground. See also the analysis of Bennett J in Christian v Société Des Produits Nestlé SA (No 1) [2015] FCAFC 152 at [34] – [38] and [41].

37    I have no recollection of any relationship, including a working relationship, with Ms Lurato, and even if I did, the mere professional association could not found a reasonable apprehension of bias on my part. At any rate, given the total absence of a working relationship between myself and Ms Lurato, there is no such factor which would arise capable of giving rise to a reasonable apprehension of bias. Consequently, the applicant’s third ground cannot sustain an assertion that “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”: QYFM at [37] (Kiefel CJ and Gageler J), [67] (Gordon J), [274] (Jagot J).

Ground 4 – Costs Order

38    The applicant’s fourth submission claimed that I made an “unlawful” and “improper” costs order, which was found to be such by Justice Moshinsky. This is a misunderstanding of Justice Moshinsky’s judgement. At [37] of Mbuzi v Wordsworth, His Honour directly addressed the question of injustice:

… 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.

39    Justice Moshinsky explained to the applicant that it is possible to apply to seek a variation of the costs order, but that assuming no costs order was made at the end of the proceeding, then no substantial injustice occurred: Mbuzi v Wordsworth at [37]. Moreover, as the respondents raise in their submissions, a costs order which does not comply with s 570 of the Act is not a factor which could influence a decision-maker to find an outcome not based on legal and factual merit. As the test for reasonable apprehension of bias requires a factor which could influence a decision-maker to find an outcome not based on legal and factual merit, the applicant’s submission is unmeritorious: QYFM at [38] (Kiefel CJ and Gageler J), [67] (Gordon J); Ebner at [8].

Ground 5 - Complaint

40    The applicant’s fifth submission went to the “administrative complaint” filed with the Chief Justice. The applicant submitted that I “would be motivated by revenge against the applicant in this matter”.

41    Once again, there must exist a factor which might lead a decision-maker to determine the matter other than on its legal and factual merits: QYFM at [38] (Kiefel CJ and Gageler J), [67] (Gordon J); Ebner at [8]. As the respondents submitted, there may be circumstances in which judicial conduct subsequent to a complaint can ground a reasonable apprehension of bias; however, there is no such evidence which may support such an assertion in this case.

42    The statements made by Macfarlan, Brereton and McCallum JJA in CM v Secretary, Department of Communities and Justice [2021] NSWCA 244 at [8] are useful on this point:

… Complaints by a litigant against a judge, which are unsubstantiated, and indeed unidentified as to their contents, cannot entitle the litigant to have the judge disqualified from hearing the litigant’s cases.

43     Although this factor may theoretically be capable of influencing a decision-maker, as explained above, it is insufficient for the observer to “have ‘a vague sense of unease or disquiet’ on the question”: Burgess at [36], quoting Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424; [2002] FCA 1054 at [100] per Weinberg J. There must be something more to cement the reasonableness of the apprehension.

44    Although the complaint has been lodged, the outcome is unknown. I have taken no action in relation to the complaint. Consequently, there can be no argument that such a factor could be deemed as a “reasonable” ground for an apprehension of bias: Burgess at [35].

conclusion

45    The applicant’s application for my recusal is dismissed. A further case management hearing shall be held on a date to be fixed to progress the matter

Associate:

Dated:    12 May 2025

SCHEDULE OF PARTIES