Finch v The Heat Group Pty Ltd

REASONS FOR JUDGMENT 1 By an Interlocutory Application made on 19 April 2015, the applicant sought that I should recuse myself from presiding over this proceeding. The application was supported by an affidavit sworn on 15 April 2015, by five paragraphs in an affidavit sworn on 19 April 2015, by nine paragraphs in an affidavit sworn on 24 April 2015 and by outlines of submissions dated 24 June, 1 September and 30 November 2015. Although the affidavits contained some factual material, they were highly argumentative and have been treated as setting out not only the factual basis for the application but also the applicant's submissions in support. Altogether, the applicant relied on more than 100 pages of submissions and/or affidavit material in the nature of submissions. In an attempt to introduce at least some very high level organisation into this material, so far as I can see, the applicant advanced the following broad categories of grounds why I should recuse myself: (a) my prior professional association with the solicitors for the respondents; (b) the correctness of the disposition of various interlocutory proceedings; (c) the procedural treatment which I have given to various interlocutory proceedings and aspects of them; and (d) comments which I have made or, in some cases omitted to make, in the course of exchanges on interlocutory occasions, said to be indicative of a hostility towards, or of a disposition adverse to, the applicant. 2 With respect to (a), the fact is that I have been a judge of this court for more than nine years, prior to which I practised at the Bar for about 30 years and took briefs from a wide range of solicitors, including those now instructing counsel for the respondents. There is nothing in this point. 3 I shall take (b) and (c) together. If the jurisdiction of the court were at any time exercised in ways that the applicant considered involved substantive or procedural errors, including the denial of justice, she was at liberty to seek leave to appeal. Depending on how this case turns out, she may ultimately be able to contest these orders, directions and other outcomes. That is to say, the system contains mechanisms for dealing with substantive and procedural injustices, including those alleged to arise in situations of apprehended bias. I am satisfied that the fair minded lay observer would regard every step taken by the court as referable solely to the merits of the particular issue or matter at hand, within the overarching principles in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth). 4 With respect to (d), I take the view that the fair minded lay observer would have sat in court for many hours and considered the whole of the proceeding and the dynamics of every exchange. He or she would not have formed the apprehension referred to in the authorities. 5 In the circumstances I propose not to recuse myself. I shall exercise the jurisdiction which is given to me by the Constitution and the legislation. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.