Snow v Judicial Registrar Birchall [2025] FCA 885

History of proceedings in which Mr Snow has been involved

1. In 2022, Mr Snow commenced an appeal in this Court against a decision made by the Administrative Appeals Tribunal, action SAD 51 of 2022. On 7 June 2024, O'Sullivan J delivered judgment in those proceedings: Snow v Secretary, Department of Social Security [2024] FCA 608.
2. On 5 July 2024, Mr Snow commenced an appeal to the Full Court against the order of O'Sullivan J dated 7 June 2024, action SAD 98 of 2024, by filing a notice of appeal containing seven grounds of appeal. On 11 November 2024, Mr Snow filed an amended notice of appeal containing 28 grounds of appeal. On 6 January 2025, Mr Snow filed a supplementary amended notice of appeal which also contained 28 grounds of appeal. Mr Snow sought leave to rely on the grounds contained the supplementary amended notice of appeal.
3. On 27 May 2025, O'Callaghan J made orders in action SAD 98 of 2024, including order 1, which was that:
   1. The appellant be granted leave to rely on the document entitled "Supplementary Amended Notice of Appeal" accepted for filing on 16 January 2025, except in relation to paragraph 17 of that document.
4. The effect of that order, insofar as it is relevant to the judicial review application, was that Mr Snow was denied leave to amend his notice of appeal to rely upon one of his proposed grounds of appeal, ground 17. Mr Snow, by the application for leave to appeal which the registrar refused to accept for filing, sought to contend that O'Callaghan J's decision not to allow him to rely on proposed ground 17 was wrong.
5. Mr Snow's email to my chambers by which he raised the issue of apprehended bias attached an extract from proposed ground 17. It is evident from the terms of the extract that, if Mr Snow were permitted to argue the proposed ground of appeal, his argument in support of that ground would include criticism of certain alleged acts or omissions on behalf of JusticeNet SA. Until the receipt Mr Snow's email, I had not been aware of the terms of proposed ground 17.

1. At the first case management hearing on 1 August 2025, I disclosed the following regarding my previous involvement with JusticeNet SA:

I was a member of the committee of management of JusticeNet SA between 2020 and 2024 and was its vice president in December 2023 and in 2024. I resigned from the committee in June 2024.

In that role, I was not involved in the day-to-day operations of JusticeNet SA. I was not involved in attempting to refer clients for pro bono representation. As a member of the management committee I would receive reports from time to time that included statistics about such referrals. I was not generally provided with information about particular clients, and I do not recall ever being aware of Mr Snow's name or proceedings in which he was involved.

I was also a practising barrister and a member of the South Australian Bar Association between January 2011 and July 2024. For most or all of that time I was a member of JusticeNet SA. From time to time, I accepted pro bono referrals from JusticeNet SA and I would occasionally receive emails from JusticeNet SA inviting interest in pro bono briefs. Those emails would include a short description of the cases but would not include information identifying clients.

I do not remember ever being aware of Mr Snow's name or his proceedings, but it is possible that I may have received one or more emails, either sent to me individually or as a member of a mailing list, inquiring whether I would be interested in acting pro bono for Mr Snow. Any such email would not have identified him by name.

As far as I am aware, I have never, by reason of my involvement with JusticeNet SA, had any knowledge of or involvement in any decision-making processes relating to Mr Snow or proceedings in which he was involved.

1. In Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 (Charisteas) at 296-7 [11], the High Court summarised the relevant principles relating to apprehended bias as follows:

Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute. The apprehension of bias principle is that "a judge is disqualified if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial - that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, "it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits"; and, secondly, there must be articulated a "logical connection" between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.

(Footnotes omitted.)

1. As to the first step, the fact which it is said might lead me to decide the present application for judicial review other than on its legal and factual merits is my personal association with JusticeNet SA and, in particular, my involvement as a member of its management committee between 2020 and 2024.
2. As to the second step, the logical connection between that matter and the feared departure from my deciding the application for judicial review on its merits is that, as a person who was involved in the management of JusticeNet SA, I may prefer that there not be public scrutiny, criticism or adverse comment in relation to the conduct or alleged conduct of that organisation, particularly conduct that is said to have occurred during the period when I was a member of the committee responsible for its management. The consequences of the dismissal of the judicial review application would be that Mr Snow would not be able to rely on proposed ground 17 in his appeal to the Full Court, and that he would not be able to ventilate his criticisms on that appeal.
3. Mr Snow has not raised any allegation of actual bias. On an application for recusal on the basis of apprehended bias, "[n]o prediction by the court is involved in deciding whether a judge might not bring an impartial mind to bear" and "[n]o question as to the understanding or motivation of the particular judge arises": Charisteas at 299 [18].
4. Even though I was not knowingly involved in any matter concerning Mr Snow or the proceedings in which he was involved, I consider that a fair-minded lay observer might reasonably apprehend that a judge who had been involved in the management of JusticeNet SA at the time when the acts or omissions about which Mr Snow seeks to complain are alleged to have occurred might decide Mr Snow's application otherwise than on its legal merits. Accordingly, I am satisfied that a reasonable apprehension of bias is established.

1. For these reasons, I have determined that I should recuse myself from further hearing of the judicial review proceedings. The proceedings will be reallocated to a different judge of the Court.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McDonald.