Federal Court of Australia

Khattabi v Jetstar Airways Pty Limited [2026] FCA 1372

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application is dismissed.

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

REASONS FOR JUDGMENT

ABRAHAM J

1    By originating application dated 7 August 2026, the applicant commenced proceedings in this Court against the first respondent, Jetstar Airways Pty Limited (Jetstar), and the second respondent, Qantas Airways Limited (Qantas), alleging contraventions of the Fair Work Act 2009 (Cth) (FW Act) and Corporations Act 2001 (Cth) (Corporations Act).

2    In summary, the applicant alleges that in September 2018, while employed as a Flight Operations Engineer with Virgin Australia Airlines Pty Limited (Virgin), he made a series of written complaints and inquiries to Virgin’s Director of Flight Operations about the accuracy, safety, and regulatory compliance of pilot training material at Virgin. The applicant also made complaints to the Civil Aviation Safety Authority (CASA) in November 2018 concerning substantially the same matters. He claims the Guardian news outlet published an article in November 2018 which detailed those disclosures, although he claims part of the reporting was inaccurate. In May 2021, the applicant applied for an Operations Engineer position with Jetstar. On 1 July 2021, the applicant was informed he had been unsuccessful. He alleges, inter alia, that making the complaints detailed above constituted an exercise of his workplace rights and that, by refusing to employ him, Jetstar took adverse action against him. There are also allegations in relation to the whistleblower protection provisions in the Corporations Act.

3    The matter was listed before me for a first case management hearing on 3 September 2026. The applicant represented himself. He informed Chambers he was overseas and requested to appear remotely, which was permitted. The parties were asked to provide any consent or competing orders sought at the hearing to Chambers by 9.00 am on 2 September 2026.

4    The applicant sought orders that the respondents file a defence. The respondents sought orders this proceeding travel with another proceeding filed by the applicant against Qantas. At that time, I had not been docketed the applicant’s claim against Qantas. Nonetheless, the submissions made by the parties also addressed that matter. The respondents also sought orders setting out a timetable for filing an application for summary dismissal or strike out, and for the exchange of submissions and evidence on that application.

5    In summary, at the hearing the respondents explained the basis on which those applications would be made. The applicant strongly opposed the orders. After I ruled that I would make the timetabling orders sought by the respondents, the applicant took issue with, and the basis for, my ruling. He made an oral application seeking that I recuse myself if I am a member of the Chairman’s Lounge. In the circumstances, after hearing his submissions, I informed him I would adjourn the hearing and provide a ruling on his application at the next case management hearing on 16 September 2026.

6    For the reasons below, I dismiss the application.

Consideration

7    Before detailing the submissions in more detail, it is helpful to briefly refer to the relevant principles.

8    Actual bias exists when a decision maker has formed a conclusion that will not be altered by evidence or argument. It involves “a pre-existing state of mind which disables the decision-maker from undertaking or renders [him or her] unwilling to undertake any or any proper evaluation of the materials before him or her which are relevant to the decision to be made”: Jia v Minister for Immigration and Multicultural Affairs [1998] FCA 768; (1998) 84 FCR 87 at 104, cited with approval in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [35], and see Independent Commission against Corruption v Waterhouse [2026] FCAFC 109 (Waterhouse) at [20]-[22]. It requires cogent evidence that the decision-maker has “prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant”: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 134. Proof of actual bias by inference from the facts and circumstances of the case will usually involve an assessment of a series of actions by the decision-maker which, when taken together, form a whole picture leading to the conclusion of pre-judgment: Martin v Hillier [2025] FCA 567 at [100].

9    The test for determining whether a judge should disqualify themselves by reason of apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner) at [6]; Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289 at [11], more recently confirmed in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2023] HCA 15; (2023) 279 CLR 148 (QYFM) at [162]. In Ebner at [7] Gleeson CJ, McHugh, Gummow and Hayne JJ observed:

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.

(emphasis in original)

10    This approach was reiterated in QYFM, where Kiefel CJ and Gageler J identified at [38] the inquiry as involving the following steps:

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.

11    Their Honours observed at [39]:

Ebner specifically rejected the notion that there exists a category of case, involving some "interest" or "association" on the part of a judge, in respect of which an apprehension of bias will be presumed without needing to undertake such an analysis in order to determine that the criterion is satisfied.

12    See Ebner at [24]-[37].

13    The fair-minded lay observer is, amongst other things: taken to be reasonable: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 (Johnson) at [12]; does not make snap judgments: Johnson at [14]; knows commonplace things and is neither complacent nor unduly sensitive or suspicious: QYFM at [47]; Johnson at [53]; has knowledge of all the circumstances of the case: Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-294; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 (In Re JRL) at 355, 359, 368, 371-372; and is an informed one, that is, they will understand that the judge, by reason of professional training, 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”: QYFM at [48]; GetSwift Ltd v Webb [2021] FCAFC 26; (2021) 283 FCR 328 (GetSwift) at [35].

14    A judge has an obligation to sit unless a reasonable apprehension of bias can be established: In Re JRL at 352 per Mason J. A conclusion of apprehended bias “is not to be reached lightly”: see CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 at [56] citing In Re JRL at 371; and see GetSwift at [28]. In Ebner, Gleeson CJ, McHugh, Gummow and Hayne JJ at [19] explain:

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.

15    Having dealt with the relevant principles, it is appropriate to provide more detail of the events that occurred at the case management hearing.

16    The basis of the applicant opposing the procedural orders sought by the respondents was that the purpose of the respondents’ application was, in his view, to “avoid filing a defence, gaining more time”. The applicant asserted that the respondents were “using [the] case management hearing just to get an extension and to delay again, to stall the case”. The applicant submitted that the respondents knew they had no basis for their applications, and that they were being made in bad faith. The applicant submitted his application was “completely legitimate”.

17    Contrary to the applicant’s submissions, the respondents seeking to make an application for summary dismissal or strike out is commonplace. As is the timing of this being raised at the first case management hearing. The respondents explained the basis for the orders sought: a respondent is entitled to bring such an application and, given the basis of their applications, such applications are decided before a defence is filed. There is nothing to suggest the respondents’ applications were made in bad faith. The merit of any application can only be decided after a consideration of the material relied on by the parties, and the submissions made.

18    After ruling, the applicant took issue with my decision, in effect attempting to reargue the point. On being informed that I had already ruled, he interrupted and said: “[t]hat’s expected, actually. That’s expected”. Given what followed, I take that to be an assertion of actual bias. The applicant asserted that “I’ve seen the Commissioner do the same thing. Just Qantas telling them what to do and reversing their own orders to give Qantas what they want”. I assume this is in reference to the fact the Commissioner of the Fair Work Commission, where this proceeding commenced, also ruled against the applicant’s position. The applicant asserted that “Qantas does give commissioners, judges tens of thousands of free benefits through the Qantas Lounge”, including “free tickets”. The inference being asserted is that commissioners and judges rule in Qantas’ favour as a result of some quid pro quo. The applicant asserted that any judge who was a member of the Chairman’s Lounge has a conflict and cannot hear his case.

19    I am, like most judges on this Court, a member of the Chairman’s Lounge: e.g. Federal Court of Australia, Annual Report 2024-2025 at p. 209.

20    Although the applicant was obviously aware that many judges of this Court are members of the Chairman’s Lounge, he did not consider that to be a basis to seek my recusal, or at the outset of the case management hearing. It was only when I did not agree to make the procedural orders he sought, that he made the allegation leading to this application. I note the applicant’s assertion about the Commissioner also appears to be based on the fact he ruled against the applicant, a decision which the applicant considers the Commissioner ought not have made.

21    It is for the applicant to establish the basis of his application. There is no evidence to support his allegations. Suffice to say, although it may be accepted that there are benefits to being a member of the Chairman’s Lounge, I do not understand there to be benefits of the nature or type as alleged by the applicant. Moreover, the applicant’s underlying suggestion that judges rule in Qantas’ favour, with the implication of there being some quid pro quo is an assertion made without any sound foundation. One only needs to refer to the recent high-profile case of Transport Workers’ Union of Australia v Qantas Airways Ltd (a matter which has been before a primary judge (e.g. [2021] FCA 873; [2021] 308 IR 244, [2025] FCA 971; [2025] 343 IR 59), the Full Court ([2022] FCAFC 71; (2022) 292 FCR 34) and the High Court ([2023] HCA 27; (2023) 278 CLR 571) to demonstrate the fallacy of the applicant’s submission. That was a case where Qantas was, after a contested hearing, found by the primary judge to be in breach of the FW Act by outsourcing Qantas’ ground handling operations work at ten Australian airports to several third-party ground handling companies during the COVID-19 pandemic. Qantas was ordered by this Court to pay a pecuniary penalty in the amount of $90,000,000. Of that penalty, $50,000,000 was to be paid by Qantas to the applicant, the Transport Workers' Union. Appeals against the finding were dismissed by the Full Court of this court and the High Court.

22    Applying the relevant principles, the applicant has not established any proper basis for me to disqualify myself from hearing and determining this case.

23    As explained above, if one party objects to a particular judge sitting, or continuing to sit, on a case, 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.

24    As to actual bias, an allegation must be clearly made and proved: Waterhouse at [29]. Whether one is determined to have a pre-existing state of mind that renders one unwilling to undertake the proper evaluation of a matter is generally considered on the basis of what a judge has done. In this case, the only act I have undertaken is to indicate that a case management order sought by the respondents will be made. They are, as explained above, commonplace procedural orders.

25    The applicant has not established that I made the decision to make the procedural orders sought by the respondents because of a prejudgment of his case. Nor has he established that because I am a member of the Chairman’s Lounge that I have a pre-existing state of mind which disables or renders me unwilling to undertake any proper evaluation of the materials relevant to the decision to be made.

26    Despite the applicant’s assertion appearing to be one of actual bias, I have nonetheless also decided the issue on the basis of a reasonable apprehension of bias.

27    As to apprehended bias, the applicant’s submission that any judge of this Court who is a member of the Chairman’s Lounge necessarily has a conflict and, on that basis, is disqualified from hearing his case, cannot be accepted. As explained above, that any particular interest on the part of a court or tribunal member will be automatically disqualifying was rejected in QYFM, referring to Ebner. Rather, in respect to the apprehension of bias, the criteria identified in Ebner must be considered and applied. Simply asserting that there is a conflict is insufficient.

28    The applicant has not articulated any logical connection between being a member of the Chairman’s Lounge and the apprehended deviation from deciding his case on its merits. The characteristics of a fair-minded lay observer are described above at [13]. I consider the fair-minded lay observer would also reasonably have knowledge that as a national court its judges are frequently required to travel for work and that, as a litigant, Qantas has experienced findings being made against it by judges of this Court, with significant monetary penalties imposed. Given the characteristics of a fair-minded lay observer, and the circumstances of this case, I do not consider that such an observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the applicant’s case.

29    The application for my recusal is dismissed.

Associate:

Dated:    16 September 2026