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."