Royal Embassy of Saudi Arabia Cultural Mission v Saleh [2025] FCA 926

1. The test is concerned with "possibility (real and not remote), not probability": Ebner at [7]. Accordingly, the Court further noted that:

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 on 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.

1. The test in Ebner was explained further in Burgess v Minister for Immigration and Border Protection [2018] FCA 69; (2018) 259 FCR 197 at [35], as follows:

The first 'might' concerns the likelihood (to be assessed by the Court) of the lay observer forming the reasonable apprehension. The second 'might' concerns the content of the apprehension itself. It concerns the assessment (notionally made by the lay observer) of the likelihood of the decision-maker having a foreclosed mind (as opposed to having a predisposed opinion) and so deviating from the course of deciding a case on its merits.

1. In QYFM at [38], Kiefel CJ and Gageler J held that the application of the criterion for the determination of an apprehension of bias on the part of a judge is identified in Ebner (at [8]) 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.

1. The fair-minded lay observer, whose perspective the Court must adopt, is: placed in a contemporary setting; neither complacent nor suspicious; cognisant of the realities of human frailty and unconscious biases; not assumed to have detailed legal knowledge, but an understanding of the professional roles and capabilities of both barrister and judge: QYFM at [45]-[49], per Kiefel CJ and Gageler J. Importantly, the perception of that observer is assessed on the basis of facts as they are known (to all).

1. The applicant relies on the affidavit of its solicitor, Ms Tamlyn Shaze Mills, dated 23 July 2025, for the following factual matters.
2. In September 2024, I (as senior counsel) was briefed by Sneddon Hall & Gallop (SHG) Lawyers jointly on behalf of the respondents in the Alramadi proceeding (ACD 63 of 2023), and applicants in the Representative Proceeding, following Raper J's decision in Alramadi and the FWC Full Bench decision.
3. On 18 June 2025, a joint communication was provided to my Chambers outlining these matters and advising me of a prospective application by the applicants in the Representative Proceeding to intervene in the substantive proceeding (which was not ultimately pursued).
4. In an email sent by my Associate to the parties on 25 June 2025, I clarified that:

(a) I provided advice to the respondents in Federal Court proceeding ACD 63 of 2023 in relation to the decision of Raper J in Alramadi.

(b) I did not provide advice to the applicants in the Representative Proceeding in relation to the FWC Full Bench Decision.

(c) It was not evident that there were any issues in common as between the subject of the advice provided and the substantive proceeding.

1. On 25 June 2025 and 1 July 2025, further clarification was sought from SHG Lawyers in relation to the matters raised in the email.
2. On 2 July 2025, SHG Lawyers clarified that:

(a) I provided advice to the respondents in the Alramadi proceeding between 20 September 2020 and December 2020 (I take it that both dates should refer to 2024).

(b) The brief included all decisions which had been handed down at that time (having been briefed on 20 September 2024) by the Commission, the Federal Circuit Court and the Federal Court in relation to the applicants in the Representative Proceeding and the respondents in the Alramadi proceeding.

1. The correspondence stated that SHG Lawyers were of the view that providing further details beyond what had already been provided would waive legal privilege, and they were not instructed to do so.
2. In correspondence on 2 July 2025, solicitors for the respondents expressed perplexity as to the position of SHG Lawyers in the context of seeking precision as to the information concerning my role in the various proceedings.
3. In correspondence on 4 July 2025, and in response to specific questions put to SHG Lawyers, they confirmed that:

(a) I did not provide any formal written or oral advice in respect of the Representative Proceeding.

(b) They did not intend to answer the question of whether the brief and materials provided contained any information confidential to the applicants in the Representative Proceeding or the respondents in the substantive proceeding, as they did not intend to waive legal professional privilege over the contents of the brief and materials.

(c) There were no discussions with me about matters confidential to the applicants in the Representative Proceeding or the respondents in the substantive proceeding.

(d) I did not provide any advice (formally or informally) or discuss (formally or informally) the contents of the "judicial review proceedings," being the substantive proceeding, as an incident of any brief, advice or discussion concerning the Federal Circuit Court proceeding (which culminated in the Alramadi appeal) or the Representative Proceeding.

1. The applicant's position is that, while it does not understand the basis for the claim that SHG Lawyers cannot provide further information on the basis of legal professional privilege, it cannot interrogate the matter further as it would risk submission to the jurisdiction of the Court.
2. On 10 July 2025, a Joint Note on Composition of the Court was provided to the Court by counsel for the applicant and the respondents, in which they contended, amongst other things, that it was appropriate that any bench in the substantive proceeding not include myself.
3. The Joint Note indicated that the parties had sought certain information and assurances from the solicitors for the applicants in the Representative Proceeding, which had not been provided, save as to the (inclusive) content of the brief, on the basis that further disclosure would risk waiver of legal professional privilege.
4. Without agreeing to the position advanced by the solicitors for the applicants in the Representative Proceeding, the submitting parties indicated (in the context of a request for a five member bench, and without prejudice to any application that might be made concerning the composition of the Court) that "it is appropriate that any reconstituted bench not include Younan J".

1. In the substantive proceeding, the applicant claims that the Commission erred in failing to uphold its claim that, as a foreign state, it is immune from the jurisdiction of the Commission on claims for unfair dismissal by the respondents. That claim is based on five grounds, three of which the applicant says overlap with legal and factual issues in the Alramadi matter and the Representative Proceeding:

(1) Ground 3 turns upon a construction of a contract entered into between the applicant and each of the respondents. The applicant claims that the contract falls within the exception in s 12(4) of the FSI Act, which raises issues of the construction of the contract. This issue was raised in the applicant's interlocutory application filed on 10 February 2023 in the FCC proceeding, but was not dealt with substantively in the Alramadi appeal.

(2) Ground 4 raises a question of law, viz., whether certain provisions of the Fair Work Act apply to foreign States. The Full Bench of the Commission decided that the Fair Work Act did apply to the applicant as a "National System Employer": FWC Full Bench Decision at [101]-[105].

(3) Ground 5 involves both a question of law as to whether New Zealanders who hold a Special Category visa 444 in Australia are permanent residents for the purposes of s 12(7) of the FSI Act, and questions of fact as to whether three of the respondents held such a visa at the time they entered into their contracts with the applicant. This ground was raised in both decisions of the Commission. The Full Bench found that the respondents in question were permanent residents for the purposes of s 12(7): at [97]-[103]. (I note that the respondents' written submissions in the substantive proceeding characterise this as a 'no evidence' ground.)

1. As I have decided the matter on the basis of the second aspect of the recusal application in relation to extraneous information, it is not necessary to deal with the question of association in detail, save to observe the following.
2. The applicant accepts that there is nothing in the provision of advice in relation to the Alramadi proceeding which would ground any apprehension of prejudgment in the present proceeding, because there is no common issue.
3. The question then becomes one of the apprehension of bias in the context of a lawyer-client relationship in which I did not provide advice on any common issue. If that is the (sole or independent) factor that is said might lead me to resolve the question in the substantive proceeding other than on its legal and factual merits (assuming common questions and parties), then I fail to see how the second criterion in Ebner at [8] - i.e., identification of a logical connection between that factor and the apprehended deviation from deciding the question on its merits - is satisfied, let alone the third criterion of reasonableness of the apprehension from the perspective of a fair-minded lay observer.
4. None of the authorities cited by the applicant assists this aspect of the applicant's case (see QYFM at [55] (Kiefel CJ and Gageler J), at [64] (Gordon J), at [163] (Edelman J), at [195] (Steward J), at [265] (Gleeson J), at [292] (Jagot J); Thiess Pty Ltd v Sheehan [2020] FCAFC 198 at [61], [80] (Snaden J); British American Tobacco Australia Ltd v Peter Gordon & Anor [2007] NSWSC 109 at [85], [90]-[94] (Brereton J); Masi-Haini v Minister for Home Affairs [2023] FCA 430 at [12], [14]-[15] (Kennett J); Greensill Bank AG v Insurance Australia Limited [2025] FCA 95 at [9]). Those authorities are predicated on either the provision of advice or advocacy for/against a party.
5. It is difficult to apprehend prejudgment where no view has been expressed one way or another. This aspect of the applicant's submission is akin to an argument that acting for (or against) a party is determinative. That is not in itself sufficient to disqualify a judge from sitting in a subsequent case involving the same party (see QYFM at [295], per Jagot J; British American Tobacco at [85], per Brereton J).

1. In the absence of any evidence of confidential information that was provided to me during my retainer, the applicant has identified three categories of extraneous information that may have been provided:

(1) information by way of available parole evidence which might be deployed on a question of construction of the contracts relevant to ground 3;

(2) information by way of evidence as to visa status of the three respondents the subject of ground 5; and

(3) observations on brief going both to legal and factual questions dealing with each of the issues the subject of grounds 3, 4 and 5.

1. The applicants assert that the potential receipt of extraneous information, which may be relevant to the grounds of the substantive proceeding, and which is confidential to one or more of the respondents, gives rise to an apprehension that the proceeding might not be decided on its merits.
2. In British American Tobacco, Brereton J stated at [85] that:

... if the judge as counsel may reasonably be supposed to have gained special knowledge of the facts through prior involvement - including through privileged material in a brief - that may found a reasonable apprehension that as judge he or she may have in mind extraneous material not known to at least one party [S&R Investments], because a lay observer may reasonably think that a judge might not be able to put such information out of his or her mind.

1. A claim of the potential receipt of confidential information is invariably speculative in nature. No more so than the applicant's claim that an inference is to be drawn - in the absence of evidence - as to the nature of the request for advice. As Moore J reasoned in Greensill at [42], the factual inference sought to be relied upon - that he must have had privileged and confidential briefings, information and instructions in order to make certain submissions - is not made out in circumstances of a plausible alternative scenario.
2. However, the difficulty in the present case lies in the state of the evidence before the Court, which must be taken as the factual premise of the fair-minded lay observer.
3. In that regard, given the position taken by the solicitors for the applicants in the Representative Proceeding and the respondents in the Alramadi proceeding in relation to legal professional privilege, I am not in a position to provide any further clarification as to the material I received beyond the disclosures that they have made.
4. Accordingly, it may be that a fair-minded lay observer continues to harbour a doubt as to whether my decision in the substantive proceeding is based simply upon the matters brought before me in open court: see S&R Investments Pty Ltd v Minister for Planning [2001] WASC 255 at [54], per Hasluck J.

1. I am persuaded that I should recuse myself from any further hearing and determination of this proceeding, on the basis that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the question I am required to decide, in the form of reliance on confidential information potentially received during the course of my retainer that may be relevant to the grounds of the substantive proceeding.
2. As the respondents submit, as none of the preconditions in s 570(2) of the Fair Work Act is met, there will be no order as to costs.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Younan.