Yu v ACT Education Directorate

Introduction 1 Ms Jing Yu, who is and was self-represented, applies for an extension of time and leave to appeal from orders made by a judge of the Federal Circuit Court of Australia on 1 November 2018 dismissing her application that he recuse himself. 2 The applicant's proceedings in the Federal Circuit Court are brought under the Fair Work Act 2009 (Cth) following the termination by the respondent in August 2016 of the applicant's employment as a teacher. 3 As I understand it, subject to the outcome of the present application, the hearing of the applicant's substantive case is due to resume before the primary judge on 12 March 2019 for a further one and a half days. Thus there is some urgency in the determination of the present application. 4 The trial is part-heard from March 2018. The events that the applicant says give rise to her application occurred largely in the course of the trial on 22 and 23 March 2018. There were two days of hearing in March 2018. The applicant made an application for the primary judge to recuse himself in May 2018. 5 It also appears that the Fair Work Act matter was originally to be set down for further hearing in October 2018 but was, at some point, rescheduled to March 2019. This rescheduling is raised as one of the matters in support of the applicant's claim that the primary judge should have recused himself.

Grounds 6 The grounds of the application are as follows: 1. The Trial Judge made errors in law and thus the wrong decision. (see Affidavit in support leave to appeal and Grounds of appeal in the draft notice of appeal for more details) 2. The Applicant applies for an extension of time for filing the leave to appeal on the grounds of illness. 7 The application was filed on 28 November 2018.

The evidence 8 The affidavit in support, referred to in the application, is dated 28 November 2018 and in relation to the application for an extension of time states: 9. I could not file the Application for leave to appeal within 14 days because of illness: I have been suffering from anxiety, depression, and insomnia since 2016. In addition, I caught the flu at the end of last month which lasted a couple of weeks and then it was followed by severe coughing which I haven't recovered from. 10. On 1 November 2018, I was too ill to attend the Judgement delivery and I informed Court accordingly. 9 No other medical evidence has been filed by the applicant.

The draft grounds of appeal 10 The draft grounds of appeal, also referred to in the application, are lengthy. In what follows, I reproduce the draft grounds of appeal in their original form. Although the applicant said that she wished to amend her grounds so that what presently appears under 6 should appear under [1], nothing turns on this for present purposes. 1. I am the Applicant in this proceeding. I am seeking leave to Appeal against the Judgement and the Orders made by Federal Circuit Court Judge Neville on 1 November 2018 on the grounds that the Judge made errors in law and thus the wrong decision. 2. In the Judgement, the Judge ignored the legal grounds for my Recusal Application (filed on 25 May 2018). My grounds are: Judge Neville failed to comply with his legal obligations under his official vow which requires him to make an impartial decision or to act in accordance with the law, without bearing ill-will or bias towards a party. 3. The key issues that were raised from the Recusal Application were not addressed in the Judgement. The particulars are: a. Did Judge Neville have the jurisdiction to reschedule the October 2018 hearing? (Pursuant to section 13 (3)(4) of the Federal Circuit Court Act 1999, the Judge may have no jurisdiction in this circumstance). b. Did Judge Neville display 'ill will' towards the Applicant on 23 March 2018? c. Was the decision to prohibit the Applicant to take notes or to refer to notes at the hearing, made according to law? Was it impartial? d. Did Judge Neville have the authority under the law to attend the ceremonial function in lieu of the scheduled hearing? If yes, where is the authority? 4. It appears that the Judge has omitted or misconstrued some of the key factual grounds of my Recusal Application, such as the following: a. On 23 April 2018, Judge Neville cancelled the October 2018 hearing and rescheduled it to 2019 upon receiving an email request (without my consent or knowledge) from the Respondent. The Judge made his decision in Chambers. There was no application filed by the Respondent. In addition there was no consent from the parties and there was no chance for me, an affected party, to be heard. b. On 23 March 2018, at the beginning of the trial, all of a sudden, Judge Neville wanted me to calculate the final compensation and penalty amount. I said that I will write it up for him, but the Judge banged the bench with his cup and shouted: 'No, I want it now'. Note: The Judge's shouting, banging behaviour was frightening. I have been scared of him since. c. On 23 March 2018, the scheduled trial commenced two hours late, because Judge Neville went to a retirement ceremonial function. 5. At [42] of the Judgement, the Judge made a conclusion on an important issue which could not be justified by law. a. On 22 and 23 March 2018, I brought paper and notes to the witness box, intending to take some notes for the oral submission and to clarify some key facts to the Court while I was giving the evidence. The Judge prohibited me to take them to the witness box. He ordered me to return them back to the bar table.(see Judgement at [41]) b. In the Judgement, no legal authority was tabled show that the Judge's order-prohibiting me from taking notes or refer to notes-was made according to law; and was made impartial (note: I am a self-represented litigant. I do not have a lawyer to take notes or to make any direct examinations while I am in the witness box). 6. The Judge has made a finding of facts on an important issue which could not be supported by the evidence. a. The Judge claimed that my Application for recusal was delayed, that is, did not act promptly. This is untrue. The evidence shows that I acted promptly after I was aware that a Recusal Application could be made (see Affidavit of Jing Yu dated 28 November 2018 at [2]-[4]) b. The Judge found that his decision to reschedule the October 2018 hearing was not made to favour, or to disadvantage, one side or the other (see the Judgement at [58]). However, the evidence shows: i. Judge Neville denied the Applicant the procedural fairness. ii. Judge Neville did not make other relevant considerations except the 'availability' of the Respondent's witness. The other relevant considerations appear be: • A Court's duty for timely justice. (The matter is part-heard and there is no other time available in 2018 at the Court). • The reason for Mr Whitton (one of the 8 witness from the Respondent) being unavailable at trial as he chose to be overseas trip, of his own free will. • Rescheduling may cause inconvenience to others an to further delays. • The disadvantage that would be caused to the Applicant. • Overall merit of the case. iii. Judge Neville could have resolved the issue without unnecessary delay. Example of possible acceptable solutions are: • Relying upon the affidavit evidence of Mr Whitton, as his detailed affidavit should be sufficient (Mr Whitton was the final decision-maker for my dismissal. His decisions and the reasons for his decisions were all in writing). • Mr Whitton could rearrange his travel plan. • Interviewing Mr Whitton via the phone at the trial • Issuing a subpoena to Mr Whitton to be present if needed. • Ordering Mr Whitton to come to Court on a later day if needed. Other Matters 6. Regarding the incident in the morning of 23 March 2018 at the trial the transcript does not convey the manner in which the Judge was speaking to me as the original video or audio record does. 7. The final hearing initially was scheduled on 28 and 29 September 2017. I was informed by the Court that due to a medical issue experienced by Judge Neville, the hearing was rescheduled to 22 and 23 March 2018. On p24 of the Judgement, Judge Neville says that the trial was rescheduled last year 'at my request' not because he was ill, as the court told me. (Original numbering.)

The submissions of the parties 11 The applicant's submissions on the extension of time were that mental and physical illness had prevented her from submitting the application for leave to appeal on time. These circumstances, she said, were beyond her control. She also submitted that she understood that the delay (13 days) had not caused any disadvantage or inconveniences to the respondent. 12 On the leave to appeal question, the applicant submitted that the primary judge either did not consider the material facts or he did not draw the conclusions from the material facts by an application of the correct legal principles. The submissions continued as follows: 4. If a judge's duty is to administer justice according to law, then the question "whether the judicial conduct of the presiding Judge was done according to law" should be answered in the Judgement. The relevant judicial conduct included, but is not limited to, the following: a. On 23 April 2018, Judge Neville cancelled the October hearing and rescheduled it to 2019 upon receiving an email request (without my consent or knowledge) from the Respondent. He made his decision in Chambers, without providing me an opportunity to be heard. b. On 23 March 2018, Judge Neville demanded that I gave him my calculations of final compensation and penalty amounts immediately. These calculations will take a significant time. c. On 23 March 2018, Judge Neville inappropriately banged the bench with his coffee mug and shouted at me at the hearing. d. On 22 and 23 March 2018, Judge Neville disallowed me taking notes or referring to notes which I required for emphasizing or clarifying the material facts and for the oral submission. e. On 23 March 2018, Judge Neville used 2 valuable hours of the hearing time to attend a retirement ceremonial. f. On 22 and 23 March 2018, Judge Neville authorised a prolonged cross-examination. 5. Regarding the incident at [4b] [4c] above, I make the following points: a. The evidence shows that Judge Neville acted in an undignified and discourteous manner and displayed a lack of judicial temperament and demeanour. b. Judge Neville's behaviour lacked impartiality and was intimidating. 6. Regarding whether the prolonged cross-examination was appropriate or not, make the following points: a. If the purpose of the cross-examination, in this case, was to test the accuracy and credibility of the material facts that were genuinely in dispute, then how many questions were required? b. I consider that the cross-examination questions, or at least a majority of them, were immaterial, included confusing preambles, or drew inferences from the facts, resulting in obfuscation of the issues and causing misleading evidence. c. I consider that the current transcript of the hearing on 22 and 23 March 2018 is not as accurate or honest as it should be. 7. The Judge made a finding of facts on important issues which could not be supported by evidence. (Please see Grounds of Appeal at [6] filed on 28/11/2018 for details). 13 In relation to the application for an extension of time, the respondent submitted that the applicant had not provided any supporting evidence from a medical professional attesting to her having the asserted diagnosed conditions. She had not provided any explanation for her failure to obtain that supporting evidence. Even assuming that the applicant had the asserted diagnosed conditions, her evidence failed to explain precisely how any such condition would prevent her from attending to the documentation required to lodge the application for leave to appeal within the prescribed time limit. The respondent referred to Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38 at [23]: Where leave to appeal is required and is not sought within 21 days an order must be sought that compliance with that limitation be dispensed with (see O 52 r 5(2), O 1 r 8). Although such an order is made in the exercise of a very wide discretion, casual disregard of the requirements of the Rules is inappropriate. Some good reason should therefore be shown to dispense with the requirement to file an application for leave to appeal within 21 days. Had an appeal as of right been available against the judgment of Smith FM (as the appellant's legal advisers appeared to think) Order 52 r 15(2) would have required that 'special reasons' be given to justify the initiation of an appeal out of time. 14 As to the question whether there was sufficient doubt to warrant the decision of the primary judge being reconsidered, the respondent submitted that none of the five asserted draft grounds of appeal satisfied this test. 15 The respondent submitted that proposed ground 1, as originally framed, was merely a statement of the nature of her application and did not point to error in the statement or application of the relevant principles set out by the primary judge at [17]-[30] of his reasons. 16 As to proposed ground 2, the respondent submitted that as to item (a): the primary judge addressed this at [50]-[58] of the judgment (and the primary judge plainly had power to deal with that issue - relating to the conduct of the proceeding - in chambers under s 13(3)(a) of the Federal Circuit Court of Australia Act 1999 (Cth). As to item (b), the respondent submitted that the so-called "ill-will" ground was merely the overarching label the applicant gave to the list of grounds in paragraph [6] of the submissions filed on 3 July 2018 supporting the recusal application. The primary judge addressed each of these at [35]-[58] of the judgment. As to item (c), the respondent submitted that the primary judge addressed this at [40]-[43] of the judgment. As to item (d), the respondent submitted in writing that this was not raised in the recusal application, nor in the affidavits or submissions filed in support of the recusal application, but withdrew that submission as it appears that the applicant had referred to this issue in one of her written submissions to the primary judge. 17 As to proposed ground 3, the respondent submitted this ground merely repeated the items in ground 2. Again, the primary judge did not omit to deal with those grounds. The applicant has not pointed to any way in which the primary judge "misconstrued" them. 18 As to proposed ground 4, the respondent submitted that the primary judge explained that testing the evidence of a witness without the assistance of documents, other than those provided to the witness or otherwise permitted by the Court, was a well-known matter of practice in the conduct of oral examination of witnesses at trial. He was not required to provide a "legal authority". 19 As to proposed ground 5, the respondent submitted in relation to item (a) that the applicant's evidence did not show that she acted "promptly". Her evidence merely confirmed the facts referred to by the primary judge, being that the hearing was adjourned in mid-March 2018, and the recusal application was not made until May 2018. Even if the applicant was not aware of the appropriate application to bring until she made an enquiry with the Chief Judge in May 2018, the fact was that she waited until May 2018 to even make that enquiry. As to item (b), the respondent submitted that the primary judge's finding at [58] of the judgment is that the decision to reschedule the hearing was not made "to favour, or to disadvantage, one side or the other". It was not a finding that the decision did not affect one side or the other positively or negatively. Ordinarily, the rescheduling of a hearing date may disadvantage at least one party. The fact it does so does not reveal bias on the judge's part towards that party. It was not necessary for the applicant to be "heard" on any of the matters listed at subparagraph 6(b)(iii) of the grounds of appeal in the draft notice of appeal. These were all obvious considerations of which a trial judge would be aware when re-scheduling hearing dates on account of the availability of witnesses. Ultimately, the primary judge plainly explained his reasons for the rescheduling of the hearing date at [55], [56] and [58] of the judgment. 20 The respondent submitted there was no matter for serious consideration which arose from the grounds set out in the draft notice of appeal. As such, if an extension of time or leave to appeal were granted, the appeal would be futile. The respondent submitted the applications should be dismissed.

Consideration 21 In my opinion, the applicant has not provided a reasonable explanation for the delay in commencing this application. There is no evidence, beyond her own, and no persuasive evidence, as to her medical condition or conditions or how the claimed medical condition or conditions caused the delay. 22 I would refuse the applicant's application for an extension of time on the basis that there has been no reasonable explanation for the delay. 23 I also adopt the approach explained by Perry J in AYX15 v Minister for Immigration and Border Protection [2017] FCA 1037 at [10] that: …it will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success, given the additional resources that would impose upon the parties and the Court, and the impact on other Court users: see by analogy in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 (MZABP (FCA)) at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38]). In turn, in considering the applicant's prospects of success on an appeal, the Court should not conduct a summary hearing of the appeal but is to "assess 'the merits' in a fairly rough and ready way": Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [9]. In other words, the grounds should be considered on their face and examined at a "reasonably impressionistic level"; the Court should not descend into a fuller consideration of the arguments for and against each ground: see MZABP (FCA) at [62]. See also Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [21], Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [27] and Rere v Minister for Immigration and Border Protection [2018] FCA 846 at [16]-[17] per Thawley J. 24 I shall also therefore consider whether there is sufficient doubt attending the decision of the primary judge to warrant the decision being reconsidered on appeal. 25 Again, the applicant has filed very little or no evidence to found the claim for recusal of the primary judge. For example, the only transcript before this Court is the parts of the transcript set out in the reasons of the primary judge. 26 I shall proceed to consider each matter separately and then consider all of the matters together in order to decide whether the applicant has shown that an extension of time should be granted to file an application for leave to appeal and whether leave to appeal should be given. 27 It appeared that what underlay a number of the submissions which the applicant made was that, she said, the primary judge misunderstood the basis of her application, which was that the primary judge had not been true to his judicial oath or had not administered justice according to law. Nevertheless, leaving aside the issue of characterisation, the applicant relied on the same facts that had been considered by the primary judge. I would add that it was not completely clear that the applicant put no case in relation to apprehended bias. She referred in her oral submissions to the fair-minded informed bystander. 28 In my opinion, a number of the matters on which the applicant relies are either not established or could not bear on the question of recusal. 29 In the former category I would include the allegation that the primary judge permitted the respondent to cross-examine the applicant "for 2 days". On the evidence before this Court whether or not the cross-examination was "without good cause" is not made out. The applicant's contention that a majority of the questions she was asked were "immaterial, including confusing preambles, or drew inferences from the facts, resulting in obfuscation of the issues and causing misleading evidence" is not made out on the evidence. I do not have the full transcript before me. I also take into account what the primary judge said at [49], that there were significant periods where there was no cross-examination. 30 I would include in the latter category the making by the primary judge of procedural orders in chambers to reallocate a further hearing date in the light of the availability of a witness for the respondent. I do not see how this claim could sound in recusal. I also take into account what the primary judge said at [57], that he did not see any of the correspondence between the parties and with his chambers as to these procedural matters. 31 Also in the latter category is the claim that the primary judge adjourned the part heard matter even though there were, according to the applicant, several other options available. In my opinion, the matters enumerated in the grounds of appeal at subparagraph 6(iii) do not go to recusal. It appears from an affidavit filed by the applicant on the recusal application and extracted by the primary judge at [7] that the witness in question was Mr Whitton, the person who decided that the applicant should be dismissed. I see no procedural error in the primary judge proceeding on the basis that he was an important witness and he should be available to give evidence both orally and in court. 32 Similarly, I see no basis going to recusal, if the applicant's claims are accepted, in the trial commencing two hours late on 23 March 2018 because the primary judge went to a retirement ceremonial function. This would not suggest that the primary judge was not true to his judicial oath or was failing to administer justice according to law. I see no basis for the applicant's contention, if put, that the primary judge had no legal authority to attend the ceremonial function in lieu of the scheduled hearing. The surrounding circumstances are not before me. 33 The applicant also appears to submit that the primary judge should have recused himself by virtue of his decision to reschedule the October 2018 date for hearing. However there is no factual basis for this claim. Insofar as the applicant appears to question the jurisdiction of the primary judge to reschedule the October 2018 hearing, she did not explain any basis for that contention or how it went to the issue of recusal. The reference to s 13 of the Federal Circuit Court of Australia Act 1999 (Cth) appears incorrect as it in fact authorises the exercise of jurisdiction in chambers in a proceeding on an application relating to the conduct of the proceeding. 34 In my view, the only matters of which the applicant complains which could go to recusal are the claims that the primary judge displayed "ill will" towards her on 23 March 2018. The first of these matters is the direction by the primary judge to the applicant that she not take notes or refer to notes in the witness box. The second is that the primary judge wanted the applicant to "calculate the final compensation and penalty amount" and in that respect, the applicant claims, the primary judge banged the bench with his cup and shouted that he wanted that material now. 35 As to the first of these matters, in my opinion it does not establish ill will. This aspect of the matter was considered by the primary judge at [41]-[42]. In my view, the primary judge's statements about the factual circumstances, in particular what was recorded in the transcript, are relevant: compare where the issue is whether a fair-minded lay observer may reasonably apprehend bias, as in Duncan v Ipp [2013] NSWCA 189; 304 ALR 359 at [210]. 36 As recorded by the primary judge, the applicant was proceeding to the witness box, for her cross-examination to be resumed, with some notes in her hand. The transcript recorded the following, relevantly: Ms Yu, please come back into the witness box. Sorry. Leave your notes and everything back there, please. Leave your notes back on the bar table, please. If there are any documents that Ms Bindon wants you to look at, she will provide them to you. 37 The primary judge noted that it was well-known to lawyers, but obviously not to self-represented litigants, that the purpose of cross-examination is to "test" the evidence of the witness, and to do so without the assistance of documents, other than those provided to the witness or otherwise permitted by the Court. 38 As to the second of these matters, the calculation of the amounts the applicant claimed by way of compensation and pecuniary penalty, the primary judge set out, at [37], the relevant transcript. It shows that the primary judge was seeking to find out the scope of the claim from a monetary perspective, while the applicant did not wish to or was not able to provide a figure and wanted to address only the question of liability. The transcript as reproduced by the primary judge does not reveal that the primary judge raised his voice or shouted or banged the bench. There is no other transcript before me. 39 I note, and take into account, that at [45], the primary judge said that there was not any intimidation or aggression directed towards the applicant. At [46], the primary judge said that the applicant was treated respectfully and was simply asked to provide information, and/or to follow standard practices in a court during a trial. 40 I would add that even if the primary judge did display a moment of irritation or impatience, this without more would not establish disqualifying bias or, I would add, disqualifying ill will. In VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; 131 FCR 102 at [81] Kenny J said: Occasional displays of impatience and irritation, whether justified or not, will not amount to disqualifying bias. As Kirby J said in Re Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225 at 230: While sustained ill-temper can give rise to a reasonable apprehension of bias, momentary outbursts and misunderstandings in the often stressful world of adjudication must be tolerated, so long as they pass and do not affect the functions of the adjudicator: Galea v Galea (1990) 90 NSWLR 263 at 279-80, 283. As noted earlier, if a Member is sarcastic, mocking or rude, he or she fails to act in conformity with proper standards, but this conduct will not of itself constitute disqualifying bias. Mere insensitivity to an applicant, whether about his personal situation or otherwise, will also not amount to such error. 41 Taking together the matters of the direction by the primary judge that the applicant leave her notes and papers on the bar table and the alleged intimidation of or aggression towards the applicant in respect of her failure or refusal to provide a monetary figure for her claim, there is no basis for recusal on the part of the primary judge and no sufficient doubt as to the judgment of the primary judge in dismissing the applicant's application that he recuse himself. This conclusion is also relevant to the applicant's application for an extension of time. 42 Nothing turns on the issue of whether or not the applicant made the recusal application at the earliest possible time. Although the primary judge, at [63], took this into account, the emphasis before me was on whether or not the applicant's grounds have been shown to raise the requisite doubt about the correctness of the judgment of the primary judge. Having said that, I see no reason to doubt that it was open to the primary judge to find that the recusal application was not made at the earliest possible time. 43 In summary, the factual foundation in relation to the events of 22 and 23 March 2018 were the issues of: the notes in the witness box; the attendance by the primary judge of the retirement ceremony; the length of the cross examination; the judge's requirement for the applicant's calculations of her claim; and the claimed shouting and banging of a cup by him. More generally, the applicant complained of the rescheduled hearing, particularly in light of the claimed alternatives for the taking of Mr Whitton's evidence. Taking these matters together as I have found them, I see no sufficient doubt to warrant the decision of the primary judge being reconsidered. That conclusion also informs the claim for an extension of time. 44 Lastly, there is no evidentiary foundation for the proposition put by the applicant that the current transcript of the hearing on 22 and 23 March 2018 "is not as accurate or honest as it should be."

Conclusion and orders 45 The applicant's interlocutory application is dismissed. I reserve the question of costs so as to allow the applicant to respond to the respondent's application for costs with reference to s 570 of the Fair Work Act. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.