Federal Court of Australia

Graeber v University of Sydney [2025] FCA 1095

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for leave to appeal be dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

(DELIVERED EX TEMPORE AND REVISED FROM TRANSCRIPT)

RANGIAH J:

1    The applicant is a neuropathologist who was employed in a research position by the respondent (the University). The University made allegations of misconduct against the applicant that resulted in a warning in 2021 and, ultimately, his summary dismissal in 2023.

2    The applicant alleges that the allegations, the warning and his dismissal involved the taking of adverse action against him in contravention of s 340(1) of the Fair Work Act 2009 (Cth) (the FWA). He also alleges that the University dismissed him with intent to coerce him into not exercising a workplace right in contravention of s 343 of the FWA. The applicant further alleges that the University breached his contract of employment and an applicable enterprise agreement.

3    The matter was ultimately allocated to Raper J, having been transferred from the docket of another judge. On 6 December 2024, the applicant filed an interlocutory application seeking an order reallocating the matter to a different judge. The basis of the application was an allegation of apprehended bias on the part of Raper J.

4    On 13 February 2025, Raper J heard and dismissed the interlocutory application. The applicant now applies for leave to appeal against that decision. Leave to appeal is required pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

5    The principles applicable to an application for leave to appeal from an interlocutory decision were summarised by the Full Court in Deputy Commissioner of Taxation v Miraki [2022] FCAFC 96 at [5] as follows:

The principles applicable to an application for leave to appeal from an interlocutory decision are well established. In general, the tests to be applied are: (a) whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court; and (b) whether substantial injustice would result if leave were refused, supposing the decision to be wrong. The discretion to grant leave is not constrained by rigid rules. Leave to appeal has been granted where, for example, the questions posed for resolution on appeal “have general importance beyond the concerns of the parties”.

(Citations omitted.)

6    In an affidavit filed in support of his interlocutory application, the applicant deposed that:

As an alumna of the University, having completed both her undergraduate studies and law degree there, Justice Raper has personal connections to the institution. Moreover, she has maintained a professional relationship with the University as an adjunct lecturer and senior lecturer at its Law School since 2005. This long-standing association raises concerns about her actual and/or perceived impartiality in hearing a case that involves the University as a defendant. The approval of Justice Raper’s academic appointments likely involved/involves university managers central to this case (e.g., former and current Provost, S. Garton and A. Jagose, respectively).

7    The applicant was represented by counsel at the hearing of the interlocutory application. Counsel’s submissions were succinct:

In summary, your Honour, it’s the association with the respondent – which we say is a long-standing and ongoing relationship. And that might cause a fair-minded and reasonably well-informed bystander to draw some conclusions, including that your Honour may have interacted with or developed some collegiate sentiment towards witnesses to be called in the proceedings by the respondent. I don’t put the application any higher than that.

8    Justice Raper delivered ex tempore reasons for judgment. Her Honour commenced by observing that the criterion in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (Ebner) for determining whether there is an apprehension of bias on the part of a judge 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”. Her Honour also noted that in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148, Kiefel CJ and Gageler J at [38] observed that the test involves, first, identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; secondly, the articulation of a logical connection between that factor and the apprehended deviation from deciding a question on its merits; and, thirdly, an assessment of the reasonableness of that apprehension from the perspective of the fair-minded lay observer.

9    Her Honour’s reasons continued:

At a case management hearing on 15 November 2024, when the issue was first raised with the court, the parties were informed that I am not employed by the University. I hold an honorary position. I receive no renumeration from the university and I have given ad hoc lectures and I currently have no future lecturing commitments at the University.

In addition, Mr Graeber relies on the fact that I am likely to have interacted with and developed at least some collegiate sentiment towards witnesses to be called by the University in these proceedings. The Court, through my associate, informed [the parties], upon the identification with the confirmation of the University of the witnesses that the University proposes to call, that I do not know and have never interacted with any of the witnesses that the University proposes to call.

From the perspective of a fair-minded lay observer, I do not accept that having been employed in the past at the University nor the possibility of future association in this case would give rise to the possibility of a reasonable apprehension of bias.

10    Her Honour held that it was not apparent from the submissions that there was any logical connection between her association with the University and an apprehension that her Honour might not be able to bring an impartial eye to the resolution of the questions to be determined in the matter. Her Honour accordingly dismissed the interlocutory application.

11    The applicant’s draft notice of appeal sets out three grounds which allege, in summary, that Raper J erred in:

(1)    failing to properly apply the test for apprehended bias established in Ebner, particularly in, “neglecting to consider the nuanced aspects of institutional loyalty, personal relationships, reputation, future opportunities and the perception of bias”, that may arise from her Honour’s association with the University;

(2)    failing to give adequate consideration of the specific circumstances of the case including, the whistleblowing component of the underlying claim, her Honour’s long-standing association with the University, which may foster institutional loyalty and unconscious biases, and the potential for relationships between Justice Raper and other faculty members or administrators at the University;

(3)    failing to recognise the elevated need for judicial impartiality in a case involving public interest disclosures and institutional integrity.

12    The applicant is self-represented in his application for leave to appeal. His written submissions summarise his “Grounds for Leave to Appeal” in the following way:

1.    Undisclosed Conflict of Interest: Her Honour holds an honorary appointment at the same university that employed the Applicant for over a decade. This material association was not disclosed to the parties during the interlocutory hearing, creating an appearance of partiality. Under the Ebner test, a fair-minded lay observer might reasonably apprehend that Her Honour may not bring an impartial mind to the resolution of the case. Non-financial institutional links, such as honorary appointments, are sufficient to undermine impartiality and trigger the need for recusal.

2.    Logical Connection to Bias: The ongoing institutional relationship between Justice Raper and the university creates a direct and salient logical connection to the apprehension of bias. This is particularly so where senior leadership, such as the provost, is involved in the subject matter of the case. A reasonable observer could conclude that Her Honour might be inclined to avoid jeopardizing collegial ties or future professional relationships with the university. This satisfies the Ebner test, which requires a logical connection between the association and the feared departure from impartiality.

3.    Whistleblowing Context: The case involves a public interest disclosure by the Applicant alleging institutional wrongdoing by the university. Her Honour’s connection to the same institution heightens the risk of unconscious bias or perceived institutional loyalty. In such high-stakes matters, even indirect personal connections can trigger disqualification under the Ebner test.

4.    Refusal to Recuse: Despite these compelling factors, Her Honour refused to re­cuse herself. This decision undermines procedural fairness and public confidence in the judiciary. The principle that “justice must not only be done but must also be seen to be done” is violated when a judge refuses to disqualify themselves in the face of an apparent conflict of interest.

5.    Error of Law: Her Honour erred in law by failing to apply the correct legal test for recusal, specifically the “reasonable apprehension of bias” test as established in Ebner. This error is evident in Her Honour’s failure to properly consider nuanced aspects of institutional loyalty, personal relationships, reputation, and future opportunities that could impact impartiality.

6.    Denial of Natural Justice: Her Honour failed to afford procedural fairness by not adequately considering the specific circumstances of the case, including: the whistleblowing component of the underlying claim; the potential for personal relationships between Her Honour and other faculty members or administrators at the university; and the elevated need for judicial impartiality in cases involving public interest disclosures and institutional integrity.

7.    Misapprehension of Facts: Her Honour made findings based on an incorrect or incomplete understanding of material facts relevant to the recusal application, including: the extent of Her Honour’s association with the respondent university; and the potential impact of this association on her impartiality.

8.    Failure to Consider Relevant Material: Her Honour did not properly consider affidavit material or other evidence relevant to the apprehension of bias, such as: the timing of Her Honour’s assignment to the case; and the potential for external influences that could compromise impartiality.

9.    Public Interest Implications: This case involves serious allegations of institutional misconduct at a public institution, where whistleblowing is of particular importance. Her Honour failed to recognize the elevated need for judicial impartiality in such cases. Even the appearance of bias can deter future whistleblowers and undermine trust in the court's ability to deliver justice impartially.

(Footnotes omitted.)

13    There is substantial overlap between this material and the remainder of his written submissions.

14    It should be noted that I rejected the University’s attempt to adduce further evidence suggesting that her Honour was wrong to say that she had an ongoing relationship with the University. I also rejected the applicant’s attempt to adduce further evidence suggesting that her Honour may have an association with the two sisters of one of the University’s potential witnesses. In both instances, there was no satisfactory explanation of why the evidence was not adduced at first instance and there was otherwise no attempt to address the principles applicable to adducing new evidence in an application for leave to appeal.

15    The first, second, fourth, fifth, sixth, seventh and eighth grounds allege legal or factual errors on the part of Raper J. The applicant does not allege that her Honour misunderstood the test in Ebner, but contends that the test was misapplied.

16    In the interlocutory hearing, the applicant’s counsel relied upon two bases for the asserted apprehension of bias. The first was Raper J’s ongoing association with the University over a long period of time. The second was that her Honour may have, “developed some collegiate sentiment towards witnesses to be called” by the University. In rejecting those submissions, her Honour pointed out that her current position at the University was unremunerated, involved giving ad hoc lectures in the Law School and that she had no future lecturing commitments at the University. Her Honour also clearly indicated that she did not know and had never interacted with any of the University’s proposed witnesses.

17    In considering an application for recusal of a judge on the basis of an association with a party, it is necessary to consider all the facts of the association including, “the nature, duration, intensity and proximity of that relationship”: S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at 372–373 (Kirby P).

18    The present case is not comparable to the circumstances in Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009] NSWCA 300, where Basten JA observed at [62] that, “A close connection between an adjudicator and one party may be sufficient to give rise to a reasonable apprehension of partiality without there being any connection between the nature or subject matter of the relationship and the issue in dispute”. As Basten JA noted, in that case there was “an ongoing collaborative association”, the relationship was “mutually beneficial” and the relevant research, “may well have constituted a significant element”, of the decision-maker’s academic and professional career.

19    The association between Raper J and the University is not in that category. It is true the association is longstanding, her Honour having delivered lectures on an ad hoc basis at the University’s Law School since 2005. Her Honour also confirmed that the relationship is ongoing. However, there is no suggestion that the association with the University constitutes any part of her Honour’s judicial career. The position is an honorary one and there is no suggestion that her Honour receives any financial or other benefit from the relationship. Although the association is ongoing, it cannot be described as “close”.

20    It is common for senior lawyers and judges to provide the benefit of their legal knowledge and experience to law students by delivering lectures to law students at universities on a voluntary basis. It is primarily a form of community service to the students, rather than the relevant university. It is difficult to see that a fair-minded lay observer could, without more, regard such service, even under a title such as “adjunct lecturer” given by the university, as creating some form of obligation to the university that might affect the impartiality of the judge.

21    In addition, the applicant was employed in a different department, the Medical School. Her Honour indicated that she does not know and has never interacted with any of the witnesses proposed to be called by the University.

22    The applicant asserts that her Honour may be seen as having developed a form of “institutional loyalty” because of her graduation from and longstanding association with the University. However, that assertion does not appear realistic in the circumstances of the case. In Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 65 FCR 215, Merkel J observed at 224 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”. That observation can appropriately be applied to the circumstances of the current case where the relationship is ongoing and remains voluntary.

23    I do not interpret her Honour’s reasons as suggesting that she had in fact been employed by the University at some stage in the past. Even if that was the case, the observation in Aussie Airlines is apt in circumstances where any such “professional association” was in the past.

24    The applicant submits that there is an “elevated need for judicial impartiality” in cases involving public interest disclosures in the context of his alleged whistleblowing. As this was not an argument made before the primary judge, there can be no error in any failure of her Honour to consider it. In any event, regardless of the nature of the case, the legal standard incorporated in the Ebner test remains unchanged.

25    In these circumstances, the applicant has not demonstrated that it is sufficiently arguable that Raper J erred in rejecting the argument that a fair-minded lay observer might reasonably apprehend that her Honour might not bring an impartial mind to the resolution of the case. It cannot be concluded that the decision is attended with sufficient doubt to warrant its reconsideration by the Full Court. The application for leave to appeal must be dismissed.

26    I reject the University’s submission that, notwithstanding s 570 of the FWA, costs should be awarded against the applicant on the basis that it was unreasonable to bring the application for leave to appeal. The application for leave was reasonably arguable. There will be no order as to costs.

Associate:    

Dated:    8 September 2025