McGinn v Federal Circuit and Family Court of Australia [2025] FedCFamC2G 2179

1. The applicant, Ms McGinn, applies that I recuse myself on the grounds of actual bias. The background to that application is as follows.
2. On 22 October 2025, Ms McGinn filed an originating application pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth), seeking an order of review in relation to a decision made by a Registrar of this Court on 26 September 2025 by which the Registrar refused to accept for filing an originating application Ms McGinn filed on 17 September 2025. The Registrar refused to accept for filing that originating document purportedly pursuant to r 2.16 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (GFL Rules), which provides as follows:

A Registrar may refuse to accept a document for filing (including a document that would, if accepted, become an originating application) if:

(a) the Registrar is satisfied that the document, on its face or by reference to any other documents filed or lodged for filing with the document, is an abuse of process or is frivolous, scandalous or vexatious; or

(b) the document is lodged in connection with a pending proceeding, the registry is not the proper registry and subrule 2.12(4) has not been complied with; or

(c) the document is lodged electronically and the person lodging the document has not complied with the Court's lodging procedures

1. The originating application Ms McGinn filed in this Court names the "Federal Circuit and Family Court of Australia" as the respondent.
2. The matter was listed before me for a first court date on 25 November 2025. Ms McGinn appeared on her own behalf, but there was no appearance by or on behalf of the respondent. Before the first court date Ms McGinn sent to my Associate's inbox an email to which she attached a document titled "Applicant's Application for Summary Judgment". In paragraph 3 of that document, Ms McGinn said she was seeking summary judgment pursuant to r 23.08(1)(e) of the GFL Rules on the ground that the "Respondent has no prospect of success when it will not defend in the proceedings". In paragraph 4 Ms McGinn claimed in the alternative that the "Respondent is in default per rule 5.09(b)(i)" in that the respondent "failed to file response in the time required". So what came before me on the first court date was also an application for summary judgment.
3. At the first court date there was a discussion about the further progress of the matter, and in the absence of the transcript, it would be unwise for me to seek to recall my memory of what was precisely discussed. The upshot of the discussion, however, was that I made the following order:
   1. The matter be listed at 10.15 am on 10 December 2025 for the purpose of hearing the applicant's application for:
      1. summary judgment; and
      2. assuming summary judgment is not granted, the claims for relief made in the originating application.
4. The thinking behind my making this order was that I had formed the view that issues that may arise out of an application for summary judgment would also arise in relation to the application for final relief, assuming summary judgment were not granted.
5. It is the case, as Ms McGinn has submitted before me today (and this is the basis on which Ms McGinn applies that I recuse myself), that the order I made on 25 November 2025 assumes, at the very least, that it is a possibility that I have a discretion to refuse summary judgment even if the preconditions for it, such as the respondent's not filing an appearance, are satisfied.
6. On 9 December 2025 Ms McGinn sent an email to my Associate's inbox to which she attached a document titled "Applicant's Application of Recusal" (AAR). In paragraph 1 of that document Ms McGinn says she applies for the "recusal of Justice Manousaridis on actual bias in the form of prejudgment". That paragraph is followed by a statement of what constitutes actual bias taken from the judgment of the High Court in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, at paragraph 72, namely, that the test for actual bias is that the decision-maker is "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented".
7. There then follow two sections. One is headed "Prejudgment on summary judgment", in which Ms McGinn says the respondent failed to file a response pursuant to rule 8.15, and failed to attend to defend the hearing, and, for that reason, the respondent does not have a prospect of successfully defending the proceeding. Ms McGinn then referred to r 23.08(1)(e) of the GFL Rules, and to s 143(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), which deals with the Court being satisfied that a respondent does not have reasonable prospects of defending the proceeding. That is followed by the submission that this Court does not have discretion to refuse the summary judgment. What is there then said is that my having included, in order 1(b), the words "assuming summary judgment is not granted", is a prejudgment; and the basis of that submission is the contention that I know there is no discretion to refuse a summary judgment application.
8. In the next section of the AAR, which is titled "Prejudgment on default judgment", it is submitted that it "is common knowledge the Applicant is entitled to file the application; therefore, she does not have burden of proof...". Ms McGinn submits that the respondent has the burden of proof to file a defence to the contrary. Ms McGinn further submits that she is not required to prove she is entitled to the relief claimed in this case. In paragraph 11 of the AAR, Ms McGinn submits that order 1(b) constitutes prejudgment in that it assumes that Ms McGinn bears the burden of establishing her claims for relief.
9. In the course of today's hearing, Ms McGinn made a number of submissions in response to questions I asked in an effort to understand the grounds on which she applies for my recusal. Having heard what Ms McGinn said, I am satisfied that the grounds for recusal Ms McGinn articulate to me were intended to be the grounds that are set out in the AAR.
10. I will then turn to the principles that deal with applications for recusal based on allegations of actual bias. I first refer to the judgment of Cole J, sitting in the Supreme Court of New South Wales Court of Appeal, in the case of Ramadan v New South Wales Insurance Ministerial Corporation [1995] NSWCA 386. At page 18, in the first paragraph, his Honour discussed the difference between an allegation of actual bias and apprehended bias. His Honour said:

It is important to firmly bear in mind a critical distinction between an allegation of actual bias and an allegation of reasonable apprehension of bias. They are allegations of an entirely different character. An allegation of actual bias requires an appellate court, if it is to uphold the allegation, to make a finding that the trial was, in truth, biased against or prejudiced in the sense of having prejudged against the appellant. It involves a finding of judicial impropriety, and probably of judicial misconduct. It involves a finding of breach of the judicial oath.

1. Also relevant is the judgment of Lockhart J in Singh v Minister for Immigration & Ethnic Affairs [1996] FCA 902, where his Honour said that:

Evidence to establish actual bias may consist of actual statements made by the person said to be biased, and of objective facts and circumstances from which an inference of bias may properly be drawn.

His Honour continued by saying that:

Bias is not synonymous with absence of good faith; a person may in all good faith believe that he was acting impartially, but his mind may nevertheless be affected unconsciously by bias...

1. I have not had the opportunity to identify authorities which deal with the procedure by which a judge faced with an allegation of actual bias is to determine such a charge. It is, of course, the case that a judge decides applications for recusal where the allegation is one of apprehended bias. In that case, a judge must put himself or herself in the shoes of the fair-minded, reasonable layperson; but it is unclear whether that is the standard or approach that should be applied when an allegation of actual bias is made. It seems to me, though, that the best and only means by which such an application can be considered is by the judge who is faced with an allegation of actual bias putting himself or herself in the position of an appellate judge who considers the application and the grounds on which it is made.
2. The fundamental premise of Ms McGinn's application that I recuse myself on the ground of actual bias is the contention that the respondent does not have any prospects of resisting summary judgment or default judgment; and additionally, or alternatively, the contention that there is no argument against the proposition that Ms McGinn does not bear any burden of proving the case in the proceeding she has filed in this Court. The ground for bias arises from the fact that in the orders I made on 25 November 2025, I, at the very least, recognise the possibility that this may not be the case.
3. That is not a basis from which it could reasonably be found that I have prejudged the issue. Ms McGinn is perfectly free to make whatever submissions in response to that; and there is nothing in the orders I have made that could possibly suggest that I have closed my mind to entertaining the submissions Ms McGinn wishes to make in support of her contention that the respondent has no prospect of resisting summary judgment, or that Ms McGinn has no prospect of being wrong in her contention that she does not bear the onus of making out her case in this Court. The very purpose of having a hearing will be for me to hear submissions Ms McGinn wishes to make in relation to those issues.
4. For these reasons, the application for recusal based on actual bias will be dismissed.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.