Consideration
22 During the course of the hearing, I asked the applicant on several occasions to identify which parts of which paragraphs of the primary judge's reasons for refusing to disqualify himself that she asserted were in error, and what that error was. She declined each invitation to make any such identification, asserting in broad terms that it was the entirety of the actions of the primary judge that warranted his disqualification. It follows that I have had to try to discern for myself any proper basis for the applicant's application for leave to appeal, including any appeal that would result from the success of such an application.
23 I have carefully read the applicant's draft notice of appeal, two affidavits, all of the annexures to those affidavits, the submissions filed by the applicant in this Court, the documents accompanying those submissions, and the documents described as chronologies filed in this Court in support of this application, together with the "Statement of facts" annexed to the second document described as a chronology. As a result of reading that material, and hearing from the applicant, it is clear that she feels aggrieved by the original decision by the primary judge, in relation to which she had partial success.
24 I accept that the applicant strongly and sincerely believes that the primary judge, having given summary judgment against her in the first proceedings commenced in the Federal Circuit Court, should not have heard any aspect of the remittal matter or the transfer matter, and in particular should not have heard the respondent's application for summary dismissal of those two proceedings. However strongly and sincerely that belief is held, it remains to be determined whether there was any error on the part of the primary judge in declining to accede to the applicant's application to disqualify himself.
25 The applicant contended that the effect of the transfer order made by Katzmann J and the granting of leave to appeal and upholding the appeal by Flick J in respect of the FW Act aspect of the proceedings originally commenced in the Federal Circuit Court meant that the primary judge was compelled to list each of those matters for the hearing of her claims for relief. As best as I could ascertain, the applicant was asserting that it was a failure to comply with the orders of those two judges of this Court to list the hearing of the respondent's summary dismissal application, rather than to list her applications for hearing. In my view that assertion is without foundation and does not indicate any error on the part of the primary judge, much less conduct properly grounding any application for disqualification. This complaint is based on a misunderstanding on the part of the applicant as to what the remittal decision of Flick J and the transfer decision of Katzmann J required take place in the Federal Circuit Court. For the reasons that follow, there was no obligation imposed on the primary judge by any judge of this Court not to hear the summary dismissal applications brought by the respondent.
26 As Flick J made clear in his reasons for judgment in Cavar v Green Gate Pty Ltd [2015] FCA 1179, the applicant succeeded in securing leave to appeal and having her appeal upheld in relation to the "adverse action" FW Act matters upon the basis that the primary judge's reasons for decision did not deal expressly with certain of the matters that needed to be addressed in reaching a decision as to summary judgment. As Flick J pointed out at [22]:
The simple fact remains that the primary Judge left unresolved (or, at least, not expressly resolved) the central issues of relevance to the "adverse action" part of Ms Cavar's claims. No satisfactory conclusion can presently be reached that the "adverse action" claim would necessarily have been dismissed had those matters been expressly addressed.
27 After some further comments, Flick J expressly noted that the observations his Honour had made did not confine the manner in which the applicant's claims may finally be resolved: see [2015] FCA 1179 at [26]. His Honour expressly contemplated the possibility that when the relevant statutory provisions of the FW Act were applied to the facts that had already been found by the primary judge, or such additional facts as may be considered appropriate, the end result for the applicant may well be the same. However, that was a matter for the primary judge to resolve. It follows that Flick J expressly contemplated that this matter would be heard by the primary judge on remittal, including any summary dismissal application that might be renewed.
28 Importantly, no order was made by Flick J that the Federal Circuit Court should be differently constituted for the purposes of resolving the outstanding matters that had not previously been addressed, or sufficiently addressed. There was no apparent reason on the facts and circumstances of this case why any order should have been made constraining the original primary judge from hearing the matter remitted to the Federal Circuit Court by Flick J. The mere fact that the balance of the original application had been dismissed was certainly insufficient reason, without more, for that requirement to be imposed on the Federal Circuit Court. The law in relation to recusal, especially upon the ground of apprehended bias, is sufficiently robust for the correctness of that outcome not to be in doubt. That is clear from the leading authorities in this area, conveniently summarised by the Full Court earlier this year in ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35]-[36]; see also AXQ15 v Minister for Immigration and Border Protection [2016] FCAFC 73 at [31]-[32], quoting from both ALA15 and Johnson v Johnson [2000] HCA 48; 201 CLR 488 at 493 [13].
29 The above cases, and other well-established authority cited in ALA15, demonstrate a need for an identification of what it is said might lead a judge to decide a case other than on its legal and factual merits, and an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits. Clear and distinct proof of such a serious allegation is needed. Merely pointing to prior adverse conclusions by a judge will not suffice.
30 The applicant's objection to the primary judge rehearing the remittal matter or the transfer matter, or any application for summary dismissal of either claim, by reason only of his Honour's prior summary judgment for the parts of her original claim (which was not disturbed by Flick J) provides an insufficient basis for disqualification. As I have already observed, the applicant declined to identify any error on the part of the primary judge in refusing to disqualify himself. Nothing in the affidavits by the applicant or in her submissions or in other documents furnished by her in this Court assists me in any way in identifying any error at all. To the contrary, the primary judge's reasons, necessarily limited though they were given the apparent lack of articulation by the applicant as to why his Honour should disqualify himself, appear to me to be sound and sensible.
31 A judicial officer in the position of the primary judge should not too readily accede to an application to disqualify, especially when it, at most, seems to be based upon the bare fact of prior rulings against her by his Honour by way of summary judgment in respect of other claims, which has been left undisturbed on appeal. Indeed I would go so far as to observe that, on the material before me, it might well have been an abdication of his Honour's duty to have acceded to such an inadequate application for disqualification. Judges often have to make adverse rulings on parts of a case brought by a party, and then proceed to hear the balance. That cannot, without more, ordinarily be a proper basis for disqualification as to the rest of the case. Something about the way in which the adverse decision proceeding or part of the proceeding was heard or decided must meet the test of apprehended bias. No attempt has been made to meet that test.
32 Taking into account all of the above considerations, I am not satisfied that the decision of the primary judge is attended with any doubt, let alone sufficient doubt, to warrant it being reconsidered on appeal. Nor do I consider that there would be any injustice, let alone substantial injustice, if leave were to be refused, because I can see no scope for supposing that his Honour's decision not to disqualify himself was wrong.
33 Far from finding error, the primary judge was, in my view, plainly correct to proceed as he did. His Honour was right to proceed to hear and determine the part of the claim from the original matter remitted to the Federal Circuit Court by Flick J and the further claim transferred to the Federal Circuit Court by Katzmann J. There is no impediment to his Honour proceeding to judgment on the summary dismissal applications in those two matters.