The disqualification application
16 The application for the reconstitution of the Court should be resolved at the outset. If acceded to, the applications for the appointment of Pro Bono Counsel and the application for relief pursuant to s 46PP would necessarily have to be re-allocated to a different Judge of the Court.
17 The application for disqualification, however, is to be rejected.
18 The application, as first made on 22 December 2020, was understood to have been made on either or both of two grounds, namely:
the fact that the Court as presently constituted had previously heard and rejected a claim made by Ms Reisner in different proceedings; and/or
comments made during the course of the case management hearing on 22 December 2020.
Neither ground, it has been respectfully concluded, has been made out. The application for the reconstitution of the Court is, accordingly, rejected.
19 The test to be applied in resolving an allegation as to there being a reasonable apprehension of bias is an objective one and one founded upon the necessity for public confidence in the integrity and impartiality of the judiciary: Johnson v Johnson [2000] HCA 48, (2000) 201 CLR 488 at 492 to 493. Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ there summarised the position as follows:
[11] … It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) 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.
[12] That test has been adopted…for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. "If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision." The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial".
[13] Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation ...
(footnotes omitted)
20 Any application for the disqualification of a Judge and the consequential reconstitution of the Court, including those in which the application is founded upon a Judge's participation in other proceedings involving one of the litigants, must be "firmly established": Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 ("Re JRL"). Mason J (as his Honour then was) there observed:
It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as [Reg. v Watson; Ex parte Armstrong (1976) 136 CLR 248] and [Livesey v New South Wales Bar Association (1983) 151 CLR 288] has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established": Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [(1969) 122 CLR 546 at 553 to 554]; [Reg. v Watson; Ex parte Armstrong (1976) 136 CLR at 262]; [R v Lusink; Ex parte Shaw (1980) 55 ALJR 12 at 14, (1980) 32 ALR 47 at 50 to 51]. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
21 As to the former basis of the application in the present proceeding, and the reason to question the impartiality of the Court as presently constituted by reason of earlier decisions involving Ms Reisner, the facts are within a narrow compass. In November 2007, the Court as presently constituted dismissed an Application and a Statement of Claim that had been filed by Ms Reisner, naming as Respondents the Commonwealth of Australia and the State of New South Wales: Von Reisner v Commonwealth [2007] FCA 1959. It was concluded that the "proceedings against the Commonwealth [were] but a colourable attempt to attract the jurisdiction of this Court" and that the dismissal of the proceedings against the Commonwealth deprived the Court of jurisdiction to entertain the balance of any case as against the State: [2007] FCA 1959 at [30]. The matter came back before the Court in March 2008 when the Applicant sought to file an Amended Application and Statement of Claim: Von Reisner v Commonwealth (No 2) [2008] FCA 430. The Applicant again met with failure. It was then concluded (inter alia) that "the proposed amended application [went] beyond the scope of any amendment to the existing proceedings and [was], in substance, an entirely new proceeding": [2008] FCA 430 at [13]. It was further concluded that the "proposed application [was] embarrassing in substance": [2008] FCA 430 at [14]. The matter again came back before the Court and a further judgment was published in July 2008: Von Reisner v Commonwealth (No 3) [2008] FCA 1028. On that occasion orders as previously made were varied. An appeal by Ms Reisner of the March 2008 orders and judgment was successful: Von Reisner v Commonwealth of Australia [2009] FCAFC 97, (2009) 177 FCR 531. The order previously made that Ms Reisner was not to commence any further proceeding without the leave of the court was set aside.
22 The mere fact that claims made by the same Applicant in different proceedings have been rejected does not, of itself, preclude the same Judge hearing different claims in an entirely different proceeding, especially in different proceedings coming back before the Court over a decade later: cf. Re JRL (1986) 161 CLR at 352. Although the factual background to the proceeding now before the Court may well have emerged from much the same facts as were the subject of the earlier decisions in 2008, the issues now sought to be resolved are very different. The issues now to be resolved focus attention on an application for relief pursuant to s 46PP of the Human Rights Commission Act. That is an issue which formed no part of the earlier decisions, and an issue dependent upon the facts as they emerged as between Ms Reisner and the Australian Human Rights Commission.
23 A reasonably informed observer, it is respectfully concluded, would not form any view that the Court would not approach the new proceedings with a mind open to persuasion on the facts and claims then before the Court and now sought to be pursued. It is a fact that some litigants frequently appear in this Court in many and varied forms of proceedings and commonly those litigants have their claims listed for hearing before the same Judge. Such is not uncommon in proceedings where major commercial and financial institutions are frequently parties. It is also not uncommon in industrial litigation for the same union to frequently appear before the same Judge. Although the case with private litigants may present the issue in a more stark and personal manner, the same principle applies - namely, would the reasonably informed bystander form the view that the Judge would not resolve each application or proceeding on its own facts and merits.
24 As to the latter basis upon which the application for reconstitution of the Court was advanced, namely comments made during the course of the directions hearing on 22 December 2020, the application - on balance - should not be acceded to on that basis.
25 It is understood that the comments upon which Ms Reisner sought to rely arose out of her appearance in person on that occasion. Only one day previously, the Chief Justice had directed that all hearings were to be conducted remotely and not in person, except with his prior approval. The occasion for that direction was a yet further outbreak of COVID-19 infections, notably on the Northern Beaches area of Sydney, but also reported infections in the Sydney CBD area. The application sought to be made by Ms Reisner was an application to be heard in person. She had, however, been advised on no less than three occasions that the proceeding to resolve her application would be conducted remotely. She nevertheless appeared in person.
26 The comments made during the course of that directions hearing were unambiguous and unequivocally critical of Ms Reisner. She was unequivocally told that her appearance, contrary to her being told that she was not to appear in person:
sought to pre-empt any decision that was to be made in respect to her application to be heard in person, the hearing on 22 December 2020 being merely a case management hearing intended to put in place a procedure for the filing of evidence upon which her application could be resolved at some stage in the future - assuming that by that future date hearings were still to be conducted remotely in the ordinary course,
but, more importantly:
placed at risk the health and safety of others, including most specifically, the Court's staff.
Her conduct in turning up in person in Court was described as "irresponsible".
27 When a litigant acts in a manner contrary to directions previously communicated to them and thereby potentially places at risk the health and safety of others, it is respectfully considered that the Court should have no hesitation in telling that litigant that their conduct falls well short of that which is expected. The expression of such comments, it is thus concluded, form no basis for the application for reconstitution of the Court.
28 The application, moreover, ignores the fact that comments made in respect to those matters addressed on 22 December 2020 provide no basis for an apprehension that the claims made by the Applicant in her substantive proceeding would not be resolved on their own merits.
29 The application for reconstitution as renewed on 4 March 2021, it was understood, relied not merely upon the bases previously expressed but also upon a more generally expressed concern as to whether the Court as presently constituted was sufficiently alert as to the need to protect "human rights". This basis for an order for reconstitution of the Court was perhaps different from the two former bases. The two former bases relied upon an allegation that there was a reasonable apprehension of bias. The present basis came closer to an allegation as to actual bias. Such an allegation is obviously more difficult to prove (cf. Re Minister for Immigration and Multicultural Affairs; ex parte AB (2000) 177 ALR 225 at 226 per Kirby J) and any finding as to actual bias is "a grave and exceptional matter" (cf. NADR v Minister for Immigration & Multicultural Affairs [2002] FCA 361 at [16] per Emmett J). Such an allegation must be "strictly proved": SZOMF v Minister for Immigration and Citizenship [2011] FCA 57 at [24] per McKerracher J.
30 But no litigant should be hesitant in making a properly formulated and well-founded allegation: cf. Dowling v Fairfax Media Publications Pty Ltd (No. 2) [2010] FCAFC 28 at [106] per Logan and Flick JJ.
31 In the present proceeding the factual basis for the allegation was expressed in a number of different ways but had as its central theme a perceived lack of empathy on the part of the Court as presently constituted for, or lack of understanding of, the plight of those in the situation confronting Ms Reisner. Notwithstanding the conviction with which Ms Reisner may hold such views, they are - with respect - ill-founded, and not supported by any material upon which a reasonably informed bystander could reach the same conclusions as those reached by Ms Reisner.
32 The application for disqualification is, respectfully, dismissed.
33 That leaves for resolution the application for the appointment of Pro Bono Counsel and the resolution of the substantive application for relief pursuant to s 46PP of the Human Rights Commission Act, should the application for the appointment of Pro Bono Counsel fail.