Federal Court of Australia

Mbuzi v Aye (Recusal) [2026] FCA 1204

REASONS FOR JUDGMENT

COLVIN J:

1    Five applications by Mr Mbuzi were allocated to me for joint case management. I convened a case management hearing. In an email sent to the parties prior to the hearing, they were informed that consideration was being given to referring three of the applications to a single Full Court hearing and also to whether the Court should invite submissions at that hearing as to whether the Court, on its own initiative, should make a vexatious proceedings order in respect of Mr Mbuzi's further conduct of the five proceedings.

2    Mr Mbuzi claimed that I should disqualify myself on the basis that I had assumed the conduct of the case management of proceedings when orders had been made by other judges who were shown on the Court's portal to be the case managing judges for those proceedings. He also made submissions which objected to the matters that had been raised by email and what was said to be my disrespect for other judges of the Court. He also submitted, in effect, that I had misunderstood the scope of a decision that had been made by Rangiah J in Mbuzi v Aye (Vexatious Proceedings Order) [2026] FCA 237 in contemplating a hearing where consideration might be given to the making of a vexatious proceedings order that applied to some or all of the five proceedings.

3    After engaging with Mr Mbuzi in the course of oral submissions advanced by him in support of his recusal application, I then gave the following reasons for declining to recuse myself from conducting the joint case management hearing. Those reasons refer to matters raised in the course of Mr Mbuzi's submissions. Relevant parts of the transcript are appended to these reasons.

4    For reasons that I have indicated in the course of the submissions that have been made, I am not persuaded that I should disqualify myself for actual or apprehended bias. I have had no association with these five proceedings prior to them being allocated to me. The basis for the application in relation to matters of misrepresentation and falsehood attributed to me seems to be based upon what is recorded in the Court’s portal about the allocation. However, the matters have been allocated to me for case management. Allocation of matters between two particular judges is a matter under the supervision of the Chief Justice. I have no control over it, and it is not a matter that is reviewable or subject to scrutiny by litigants. The matters are allocated to me, and I do not regard the fact that I have received that allocation to give rise to any issue in relation to my independence of these proceedings.

5    As to whether I have demonstrated some kind of disrespect or disregard for other judges, their case management orders, as with those made by any judge, are subject to subsequent orders that might be made by way of case management and it is not uncommon for one judge to alter the course of case management of a proceeding when those proceedings are re-allocated. So it is not a matter of disrespect; it is just a matter of review and consideration as to how the case should proceed.

6    I do not regard myself as failing to understand what Rangiah J has done. As I indicated, I understand that the orders he has made relate only to those particular proceedings. However, in the course of the application heard by Rangiah J various matters were raised as to the nature and extent of proceedings that have been brought by Mr Mbuzi. There is an issue as to whether it is appropriate for the Court to consider those matters in the context of the other applications that have been made.

7    Having raised that possibility in the email to the parties, I do not consider that is a matter which bears upon my independence. The referral of the question whether the Court on the basis of the materials that were before Rangiah J, on its own initiative, should make a vexatious proceedings order in respect of the five proceedings may or may not happen after todays’ directions hearing. If it does, it will ultimately be a matter for others to determine as to whether those matters have relevance for other orders that might be made.

8    For those reasons, I am not persuaded that I should disqualify myself for actual or apprehended bias and I propose to proceed to hear the case management hearing for these matters.

Edited extracts from transcript of joint case management hearing

HIS HONOUR: There are in these matters that have been called on - included in them are three applications for leave to appeal to a Full Court. The judge who is responsible for managing the allocations of appeals has considered it appropriate because of those three applications for all of these proceedings to be allocated to one judge so that those hearings can be arranged efficiently and what is contemplated is for all of those applications to be listed at the same time before the same Full Court.

The court is also aware that an order has been made by Rangiah J, a limited order, in relation to what has been determined to be the vexatious conduct of a particular proceeding, and an issue arises as to whether the court should consider whether the matters that were addressed by Rangiah J should also be considered by a Full Court. So that’s why these matters have been allocated to me and why this case management hearing has been convened. So with that introduction, Mr Mbuzi, what submissions do you wish to make about that proposed course?

MR MBUZI: Thank you. The issues, Judge Colvin, that you just went through were communicated to the parties by yourself through your associate. My position is this, until what you just said now, I’ve had no indication whatsoever that the three matters you referred to were allocated to you. In fact, as you might know, this not my first time to appear before a judge. I’ve been before over 40 judges, 15 of those have been in the Federal Court of Australia, and one of them was eventually promoted to the High Court, Edelman J.

One of the other judges I’ve appeared before is a long-serving judge, her Honour Collier J. I’m just giving you background so that you don’t presume that I don’t know the procedures of the court. The second one is another very long-serving judge, Logan J. Then I’ve had many appearances in the Supreme Court of Queensland. In fact, currently, I’m conducting a matter in the Supreme Court of Queensland. I’ve just given you that background.

Now, I’m not aware of a situation where a judge, and I’m referring to yourself now, can take it upon himself or herself to conduct parallel hearings of matters that are being heard by other judges. That is not just unusual. It is unlawful. In other words, I’m saying you do not have jurisdiction to do that. Now, I understand you are saying they’ve been allocated to you. That’s what you are just saying. Court matters in Australia, as this one is, are open matters. They are listed on the Commonwealth portal. There is nothing of the sort that you have just said.

Now, I have had exchanges of messages with you through your associate. I’ve indicated what I’m here for today, and that is to ask that you recuse yourself from hearing the matter that is allocated to you. And if indeed, as you claim, matters have been allocated to you, then the matters that have been allocated to you, you need to recuse yourself on your own and I’m very happy for a judge that is impartial, a judge that has not demonstrated bias, a judge that has no demonstrates misrepresentation to hear those matters. In fact, it makes sense expect it will be a waste of court resources, and that will be counter to exactly what the court attempts to avoid. This is the reason.

HIS HONOUR: Well, just a moment, Mr Mbuzi. You’ve raised a submission that I should recuse myself. Have you identified the matters that you rely upon for that submission?

MR MBUZI: The issues which I’m seeking for your recusal?

HIS HONOUR: Yes. Do you rely upon the submissions you’ve made about the way in which the case has been allocated as the reason why I should recuse myself or are there some other matters that you say justify that happening?

MR MBUZI: No, when you say the matter shave been allocated, that is not - that is false. I’ve just provided a copy to you of what matter has been allocated to you. Are you disputing of having received that matter? I can read it to you now. I sent it to your associate.

HIS HONOUR: Just a moment. Just a moment. Are you referring to the emails that you have sent to my chambers?

…

HIS HONOUR: Just a moment. Just a moment. The purpose of today’s hearing is for you to make submissions, not to read out emails, so - and I’m identifying the basis upon which you have said I should recuse myself and you’ve already made some submissions about what you have called false matters in relation to the allocation of these cases to me.

MR MBUZI: Yes.

HIS HONOUR: I understand that submission. Is there any other matter that you rely upon as a reason why I should recuse myself?

…

HIS HONOUR: Are there any other factual matters that you rely on?

MR MBUZI: Exactly, and I was just going through the list because what I’m pointing out to you is your conduct. So (1) I’ve said you just misrepresented what has been allocated to you, a matter of which you assist is only one and that matter, I have listed it to you in an email…

…

HIS HONOUR: You may have 10 minutes.

MR MBUZI: You have shown breach of procedural fairness because the two matters that you referred to in terms of 523/2023 and QUD24/2024. These are the matters for which I have an order staying them. What you have indicated in your email and clearly today is that unilaterally you are deciding to set aside the judgment that I have staying those matters. Now, that is not just denial of procedural fairness. It is an abuse of power.

The third ground, you have indicated to have no regard for other judges. What I call you are being disrespectful of other judges because, for your information, on 21 May 2026 his Honour, a generally honourable judge, Anderson J, in Melbourne set a hearing date for the proceeding that is assigned to him, which is 325. And that order has not been set aside. This is a court of law. There are rules governing this - - -

HIS HONOUR: Mr Mbuzi, any judge of this court has power to make an order which will alter or change an order made by - an interlocutory order, that is a case management order, made by another judge.

MR MBUZI: Your standing is no different from the other judges. You are not a Court of Appeal judge. Second, let me go to another point. On 10 July Goodman J ..... judge, made direction orders which I’m implementing now. What you have done is to not show whether those orders have been set aside. A court has procedures. You can’t just turn up because you’re a judge.

HIS HONOUR: Well, I can and, Mr Mbuzi, that’s the purpose of this hearing, is to consider whether orders of that kind should be made, so you should move onto your next - - -

MR MBUZI: Yeah, well, first - - -

HIS HONOUR: Your next point.

…

MR MBUZI: First, I’ve just told you it - so you’re suggesting that all the work that I’ve done to just be thrown away.

HIS HONOUR: Well, that’s a matter for submissions. Currently, you’re wanting me to disqualify myself for - - -

MR MBUZI: Exactly.

HIS HONOUR: - - - apprehended bias, so we’ve been - we’ve gone through a list. Are there any more matters?

MR MBUZI: Exactly I’m going to. You have failed to understand properly the order of Judge Rangiah and you must admit to that because (1) the orders that Anderson and Goodman JJ made were made past or after the judgment of Rangiah J. They did not see that order as affecting the matters that are on foot now. You are the only one who has seen that. Now - - -

HIS HONOUR: That is not what I’ve said… You should move onto your next point.

MR MBUZI: I’m explaining that so that you understand.

HIS HONOUR: Well, I - - -

MR MBUZI: That’s why I’m saying you must admit that your view is erroneous.

HIS HONOUR: Well - - -

MR MBUZI: Because what you have indicated is that the order of Rangiah J affects the matters that are on foot. I’m saying they don’t.

HIS HONOUR: I agree with you.

MR MBUZI: And that you must accept that.

HIS HONOUR: I agree with you… Just a moment, because this submission is proceeding on a false premise. The order of Rangiah J…related only to the proceedings that was the subject of his order, and I am not suggesting otherwise.

MR MBUZI: I’m saying, well, but what you have done is contrary to that. What you have done is to say that that order should affect these matters. That’s exactly what you have done in your writing to me through your associate and what you’ve said now. Now, I’m saying two judges of the same court and of the same standing as you, and that’s Goodman and Anderson JJ, have taken a different view. Your view is in minority. In this court, the majority rules, so we can’t go by your minority view, and that’s why I’m saying you must accept that your view is erroneous. And, therefore, the basis of your error is prejudice and bias.

Now, I can only refer you to what behavioural sciences attribute bias and prejudice. Only two grounds. (1) Biological, meaning a person’s parents. (2) Social or environmental, meaning the climate in which a person grew up, their community, where that person was raised, the schools where that person went, the friends that that person had. I don’t know what is the basis for your prejudice and bias you have demonstrated. Now, if you want to quarrel with me about the basis which has been established by behavioural sciences, perhaps you can look for another theory and provide it to me.

I am therefore saying that to avoid prolonged court litigation, as is happening with Judge Meagher, where a matter that has started in 2023 is still before the court now because she did not want to recuse herself. It’s better that you recuse yourself. Now, I can’t compel you to do that. Should you refuse, I will take another demonstrative request to the Chief Justice, who is the CEO, of course, at a federal level. Now, I’ve done that before…

…

HIS HONOUR: If there are things you want to do after this hearing, that’s entirely a matter for you. It sounds as - - -

MR MBUZI: Exactly.

HIS HONOUR: Just a moment. It sounds as though you have finished your submissions as to why I should recuse myself. Is that correct?

MR MBUZI: Well, if my 10 minutes is over, I can’t go over what you determined for me, but if the 10 minutes is not over, I would like to continue.

HIS HONOUR: Well, you have two more minutes.

MR MBUZI: Thank you. Now, I’m saying I was just telling you that I have evidence of what has gone on before in this court but I can also tell you what has gone on at the Supreme Court. Two other judges, one recused herself on her own, another one was removed by a Chief Justice. In other words, I’m saying it is preferable for judges to either recuse themselves or to be recused demonstratively instead of going into protected court litigation of bringing recusal applications because they tend to take too much time and the court itself does not want to waste too much time, which is understandable.

Now, let me come to the conclusion. If I had been involved or I had been requested or I had been informed - I’m using all those terminologies - that the court has come to the conclusion that it’s better for these matters for which you are applying for leave to be consolidated, I will be very happy. I can tell you I would have agreed to that. In fact, at the time Rangiah J was hearing this matter, I requested him to consider the matters. He refused. Therefore, there should be no misapprehension of what I’m saying. I would be very happy for these matters to be consolidated or to be heard jointly or concurrently, whatever legal term you might use. However, I would not be happy for you to hear these matters for the grounds I have set out. Thank you.

Associate:

Dated:    26 August 2026