Federal Court of Australia

Seeto v Uber Australia Pty Ltd [2025] FCA 1032

ORDERS

THE COURT ORDERS THAT:

1.    The proceedings be referred to the National Operations Registrar for reallocation to another judge of the Court as soon as practicable.

2.    The matter proceed by way of strict pleading.

3.    The applicant file and serve a Statement of Claim by 5.00pm on 30 September 2025. The applicant is to confirm the proper respondent(s) in the Statement of Claim.

4.    The respondent to write to the applicant to seek further and better particulars by 14 October 2025.

5.    The applicant to provide a response to the request for further and better particulars and any documents requested by the respondent by 28 October 2025.

6.    The respondent file and serve a Defence by 5.00pm on 25 November 2025.

7.    The matter be listed for case management hearing at a time convenient to the new docket judge.

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

REASONS FOR JUDGMENT

Delivered ex tempore

SHARIFF J:

1    The applicant, Mr Phillip Seeto, has commenced proceedings against the respondent, Uber Australia Pty Ltd (Uber). Mr Seeto claims, amongst other things, that he was an employee of Uber and makes claims as to contraventions of the Fair Work Act 2009 (Cth) including as to adverse action and “sham contracting”.

2    The proceedings were allocated to my docket. After being notified that I was the docket judge, I listed the matter for a case management hearing. Shortly after this time, I became aware that Mr Sebbens of Ashurst had entered an appearance as the solicitor for Uber. This prompted me to realise that Mr Sebbens had instructed me to appear for Uber in the past in other proceedings when I was a barrister. I determined to raise this issue with the parties and consider whether I should recuse myself from the hearing and determination of these proceedings.

3    In advance of the first case management hearing, I caused a communication to be sent to the parties as follows:

Dear Parties,

His Honour wishes to raise with the parties whether his Honour should recuse himself from hearing and determining these proceedings in light of the following circumstances:

1.     Prior to his appointment to the Court, his Honour was a barrister practising at the NSW Bar;

2.     During that time, his Honour acted for the respondent or one or more of its related entities in the following matters:

•    Weddall v Rasier Pacific Pty Ltd [2023] FCA 59;

•    Amita Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd T/A Uber Eats [2019] FWC 5008;

•    Gupta v Portier Pacific Pty Ltd (2020) 296 IR 246 and also in the subsequent application for judicial review heard before the Full Court but which was resolved; and

•    Nawaz v Rasier Pacific Pty Ltd (t/as Uber BV) (2022) 317 IR 134.

3.     In respect of some of the above-mentioned matters, his Honour was instructed by Mr Sebbens at Ashurst, who is the solicitor on record for the respondent in the present proceedings.

His Honour will further discuss these matters with the parties at the case management hearing today.

4    The above email sets out my best recollection of my prior professional association with Uber and its related entities.

5    For the reasons that follow, I am satisfied that I should recuse myself on the ground of a reasonable apprehension of bias.

6    A plurality of the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at 344-345 [6]-[8] (Gleeson CJ, McHugh, Gummow and Hayne JJ) set out the relevant governing principle and test applicable to a reasonable apprehension of bias as follows:

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 … 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.

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 added; citations omitted.)

7    In QYFM v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs [2023] HCA 15; 279 CLR 148 at [38], Kiefel CJ and Gageler J stated that the criterion arising from Ebner logically entails:

(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.

8    Consistently with the above, in Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at 296-297 at [11], Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ, stated that there are two steps involved in assessing whether a reasonable apprehension of bias arises, and, once those steps are taken, an assessment is to be made as to the reasonableness of the apprehension of bias. Their Honours stated:

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 added.)

9    A number of cases have considered whether an apprehension of bias arises from a professional association between a judge and a party for example, in Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd & Qantas Airlines (1996) 65 FCR 215, Merkel J observed (at 224):

In particular they [the authorities] appear to accept that the reasonable bystander would expect that members of the judiciary will have had extensive professional associations with clients but that something more than the mere fact of association is required before concluding that the adjudicator might be influenced in his or her resolution of the particular case by reason of the association. Although the test is one of appearance, it is an appearance that requires a cogent and rational link between the association and its capacity to influence the decision to be made in the particular case. In the absence of such a link it is difficult to see how the test for disqualification as stated in Livesey can be satisfied.

10    In the present case, applying the test in Ebner (by reference to the steps articulated in QYFM and Charisteas), and taking into account the principles addressed by Merkel J in Aussie Airlines, I am satisfied I should recuse myself.

11    As to the first step, the matter that “might” lead me to hear and determine Mr Seeto’s claims other than on its legal and factual merits is my previous professional association with Uber and one or more of its related entities in appearing for and advising them in my then capacity as a barrister.

12    As to the second step, the logical connection that arises is this. The previous matters in which I appeared for and advised Uber and its related entities (which are matters of public record) are all ones in which the status of individuals subscribing to use Uber’s “application platforms” (both ride share and meal delivery) were critical issues in dispute. Specifically, the critical issue in each such case was whether such individuals were employees of Uber or its related entities. On my brief review of the materials filed to date by Mr Seeto, it is clear that a critical issue in the present proceedings is whether he was or was not an employee of Uber. Thus, I am satisfied that there is a logical connection between my past professional association with Uber and the present proceedings in respect of matters that are critical to the present proceedings.

13    As to the final step of assessing the reasonableness of the apprehension of bias, I am satisfied that a reasonable fair-minded lay observer might apprehend that I might be unable to bring an independent impartial mind to bear in the determination of the present proceedings. Although I have had no prior involvement with Mr Seeto’s case, and the proceedings in which I was previously involved in for and on behalf of Uber are now some years old, I am nevertheless satisfied that a reasonable apprehension of bias arises. It should be clear from the foregoing that there is no suggestion of actual bias.

14    At the case management hearing before me, I raised these matters with the parties and neither of them objected to me recusing myself on the ground of a reasonable apprehension of bias. However the parties had come prepared with consent orders for the future progress of the proceedings and consented to me making those case management orders prior to recusing myself. I have done so. Accordingly, I will make the case management orders that the parties have provided to me by consent and otherwise I will recuse myself and refer the matter to the National Operations Registrar for reallocation to the docket of another judge of this Court.

Associate:

Dated:    27 August 2025