The application for recusal
29 On 12 November 2018 the applicant sent an email to my chambers demanding that I vacate all orders made on 30 October 2018, and that I immediately recuse myself from the four proceedings involving the applicant. The basis for the demand was expressed as follows -
Justice Wheelahan has served, and continues to serve, the objectives of the University of Melbourne. This service is by way of financial and other support over a protracted period of time, spanning at least 2012 through 2017, and beyond. His Honor is a member of the Chancellor's circle at the University of Melbourne, and a listed "supporter" of the University of Melbourne's Law School Honor Roll. Members of the Chancellors-circle explicitly make financial contributions in support of, and service to, the objectives of the University of Melbourne. The evidence of Justice Wheelahan's, and his wife's, commitment and service to the University of Melbourne can be found in Appendix 1, and at the following links:
30 The applicant then listed four links to web pages of the University which record that, together with other alumni, my wife and I gave financial support to the Melbourne University Law School over the period 1 April 2011 to September 2017.
31 A fifth link records that in 2016 my wife and I, together with many other people, made a gift to the University of between $1,000 and $2,499, thereby making us "Chancellor's Supporters". The web page for the "Chancellor's Circle" states that -
The Chancellor's Circle is a community of generous benefactors who demonstrate leadership and commitment to the University of Melbourne through annual gifts of $1,000 or greater.
With more than 1,400 affiliates, the Chancellor's Circle plays an important role in supporting the University's pursuit of innovative research, high-quality teaching and learning, and support for students
32 In response to the applicant's email of 12 November 2018 my chambers advised the parties that I would hear any application for recusal at the case management hearing, which had been fixed for 3 December 2018.
33 On 19 November 2018, the applicant filed the interlocutory application that is referred to at [1] above. The application seeking an order that I recuse myself is supported by an affidavit of the applicant affirmed 19 November 2018. In his affidavit which is titled "Affidavit: Justice Wheelahan's Apprehended and Manifest Bias", the applicant refers to the filing of a "Judicial Complaint". The applicant states that his complaint rests on -
(b) Perceived/theoretical bias - Documented long-standing contribution and support to the Respondents by the Presiding Judge
(c) Manifest/expressed bias; and
(d) Conduct contrary to the Federal Court Act 1976; Federal Court Rules 2011 and Federal Court Practice Notes, among other laws.
34 The applicant refers in his affidavit to the links to the five web pages to which I have referred above. The applicant characterises the financial support of the University as "a commitment to achieving and serving the objectives of the University of Melbourne", which "necessarily implies that, at least in principle/theory, Justice Wheelahan must also be committed to defeating each of the cases brought in the referenced files". The applicant also claims that "[d]uring court proceedings on 30 October 2018, Justice Wheelahan's bias manifested itself in a pattern of perverse, patent, prolific, potent and perfidious prejudice." The applicant then sets out over eight pages of his affidavit in paragraphs numbered from [14] to [49] a series of complaints about the conduct of the case management hearing on 30 October 2018, and the procedural orders that were made at that hearing.
35 The principles concerning apprehended bias are well-established. Apprehended bias may be demonstrated by showing that 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: Ebner v Official Trustee (2000) 205 CLR 337 at 344 [6]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at 437 [31]. The assessment is objective: Johnson v Johnson (2000) 201 CLR 488 at 493 [12]; Grassby v R (1989) 168 CLR 1 at 20.
36 Grounds giving rise to a reasonable apprehension of bias may take many forms. Any consideration of the appearance or presence of bias requires identification of the grounds which are alleged. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345 [8], Gleeson CJ, McHugh, Gummow and Hayne JJ stated that two steps are required -
First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
37 In Michael Wilson & Partners Ltd v Nicholls at 445 [64] Gummow A-CJ, Hayne, Crennan and Bell JJ emphasised the need to articulate the connection between the events giving rise to the apprehension of bias, and the possibility of departure from impartial decision-making.
38 In Webb v R (1994) 181 CLR 41 at 74 Deane J in a passage in a dissenting judgment, which is often cited, identified four main categories of apprehended bias -
(a) disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or pre-judgment;
(b) disqualification by conduct, including published statements, which category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias;
(c) disqualification by association, which will often overlap the first and consists of cases where the apprehension of pre-judgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings; and
(d) disqualification by extraneous information, which will commonly overlap the third and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.
39 In this case, the applicant's claim of apprehended bias rests upon an alleged association or relationship with the University of Melbourne arising from past financial donations. To sustain the claim of apprehended bias, the applicant must establish that, evaluated objectively, the fact of charitable donations to the University might lead a fair-minded lay observer reasonably to apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the applicant's claims.
40 Judges are selected for judicial office because of their learning and training in the law, integrity, and capacity for impartiality: R v His Honour Judge Leckie; Ex parte Felman (1977) 18 ALR 93 at 101. Appellate courts have cautioned against judges too readily acceding to applications alleging apprehended bias: Livesey v New South Wales Bar Association (1983) CLR 288 at 294. In Ebner v Official Trustee (2000) 205 CLR 337 at 348 [19]-[20], Gleeson CJ, McHugh, Gummow and Hayne JJ stated -
19 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 to 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. Judges do not choose their cases; and litigants do not choose their Judges. If one party to a case objects to a particular Judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the Judge is disqualified from hearing and deciding the case.
20 This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
41 Although it is important that justice 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 more likely to decide the case in their favour: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352. There is an element of that concern in this case because the applicant in his affidavit has associated his claim of apprehended bias with a series of complaints about the case management hearing on 30 October 2018, which he claims resulted in procedural orders that were adverse to him. These complaints essentially amount to a lengthy collateral challenge to those procedural orders.
42 Other than the fact of the charitable donations, there is no other connection with the University of Melbourne alleged by the applicant. In particular, this is not a case where it is alleged that the judge has any personal connection with the administration or governance of a party before the Court: cf, R v Bow Street Magistrate; ex parte Pinochet (No. 2) [2000] 1 AC 119; Trustees of the Christian Brothers v Cardone (1995) 57 FCR 327. In my view the fact that a judge has in the past made charitable donations to further the interests of education at the University of Melbourne would not lead a reasonably-minded lay observer to think that the judge might not bring a fair and impartial mind to deciding the issues that arise in this case. Assessed objectively and in accordance with the principles stated in Ebner v Official Trustee, there is no logical or reasonable connection between the fact of the charitable donations, and any reasonable prospect that the judge might not decide the case in an unprejudiced manner. I therefore reject the applicant's application to the extent that it rests upon an allegation of apprehended bias arising from the fact of the charitable donations to the University.
43 During the course of the hearing today, I asked the applicant whether his reference to "manifest/ expressed bias" in his affidavit of 19 November 2018 was an allegation of actual bias, or an allegation of apprehended bias. I did not receive a clear answer to that question so I shall therefore consider the allegations on both bases.
44 Whereas an allegation of apprehended bias is to be assessed objectively by reference to the standard of the hypothetical fair-minded lay observer, an allegation of actual bias is directed to the actual state of mind of the judge in question. A claim of actual bias therefore requires evidence from which inferences concerning the judge's actual state of mind might be drawn. In evaluating that evidence, actual bias on the part of a judge is to be regarded as a serious allegation, that must not be made lightly, and which must be the subject of clear and cogent proof: Evidence Act 1995 (Cth), s 140(2). In this case, the allegation of "manifest/expressed bias" is tantamount to an allegation that the judge will not in fact bring an unprejudiced and impartial mind to the determination of the issues in dispute, and it is that fact that must be proven.
45 To the extent that the applicant alleged actual bias, there is no evidence that supports the applicant's claim. The applicant's evident dissatisfaction with the procedural orders made on 30 October 2018, which finds expression at paragraphs [14] to [49] of his affidavit affirmed 19 November 2018 is not a proper basis on which to make an allegation of actual bias.
46 To the extent that the applicant's reliance on the procedural orders made 30 October 2018 and the conduct of that hearing are alleged to form the basis for an allegation of a reasonable apprehension of bias, I reject that claim also.
47 The applicant relied upon what he perceived to be differential treatment of him and the respondents. In oral submissions, the applicant claimed that I had cited a case for the benefit of the respondents but had not assisted him. The example which the applicant gave was the decision of the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, which formed the basis of a question which I put to the legal representative of the Australian Human Rights Commission at transcript page 25, line 21, where I asked the following question -
Mr Edgerton, do your clients take the position that they will actively defend this proceeding or do they take the position consistent with the principles discussed in Hardiman?
48 I then explained the purpose of this question to the applicant at transcript page 26, line 42 to transcript page 27, line 5 -
Let me just explain to you what my concern is about the case as constituted in that way. It's conventional that where decision-making bodies are joined as parties to proceedings, where the decisions of those bodies are challenged, it's conventional for the bodies, normally, not to play any active part in the proceeding. That is, it's not their role to defend the correctness or otherwise of the decision. Normally, the court is assisted by a contradicting party; that is, to put the opposing case. And what Mr Edgerton has proposed is that the Attorney-General might indicate whether or not the Attorney-General will take up the position of the contradicting party.
49 The applicant complained that I had not considered his application for relief against the Fair Work Ombudsman. The applicant relied in this respect on s 682 of the Fair Work Act, which is a provision which states the functions of the Fair Work Ombudsman. The applicant claimed that the Fair Work Ombudsman should be representing him in these matters and should launch an investigation into the suggested breaches of the Fair Work Act. The applicant made these claims at the hearing on 30 October 2018 at transcript page 21, lines 30 to 35 -
But, your Honour, before we proceed any further discussing orders, could we turn our attention to the orders sought in the originating application filed about 1 August 2018 in respect of file VID950/2018. In particular, there is a contemplated breach of the Fair Work Act under s 682 of the Fair Work Act. The Fair Work Ombudsman should be representing me in these matters, should also launch an investigation into the suggested breaches of the Fair Work Act to date.
50 I then stated to the applicant at transcript page 24, lines 6 to 8 -
Mr Thomas, I will not be entertaining any applications or make any orders against any persons or bodies or offices who are not parties to a proceeding before the court.
51 I also stated at transcript page 23, lines 21 to 28 -
Mr Thomas, it's a matter for you as to what s 682(1) means but one thing you might consider is whether that is merely the conferral of a function, rather than the prescription of an obligation on the Fair Work Ombudsman to represent everyone.
52 The applicant also claimed today that the decision of the Australian Human Rights Commission to reject his claim was "invalid under the Constitution". The applicant also made references to the prospect that his student visa may shortly expire.
53 The applicant also complained that orders proposed by him were not made, yet orders proposed by the respondents were made. I shall not undertake an analysis of the extent to which the orders made on 30 October 2018 reflected orders proposed by the respondents. The orders made were, however, no more than the outcome of the consideration of the procedural issues that arose at the case management hearing.
54 The applicant's perception that applications he made to the court on 30 October 2018, or otherwise, were not determined favourably to him does not give rise to a reasonable apprehension that the judge might not determine the matters raised by the applicant fairly and impartially.
55 I conclude that the conduct of the hearing on 30 October 2018 and the procedural orders that were made that day do not give rise to any reasonable apprehension of bias. The applicant's application in paragraph 3 of the interlocutory application filed 19 November 2018, that I recuse myself, is therefore dismissed.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wheelahan.