Yu v ACT Education Directorate [2019] FCA 272

Yu v ACT Education Directorate [2019] FCA 272

The application was dismissed because the applicant provided no reasonable or persuasive evidentiary explanation for the delay and, in any event, the proposed appeal had insufficient prospects. The alleged matters were either not established on the evidence or were incapable of supporting recusal. The primary judge's procedural management, including rescheduling and witness availability, did not show bias or ill will; the direction that the applicant leave notes at the bar table reflected ordinary practice in cross-examination; and even a moment of irritation or impatience would not, without more, establish disqualifying bias or ill will.

Jurisdiction
Australia
Judgment Date
01 March 2019
Procedural Posture
Application for Extension of Time and Leave to Appeal / Application From a Judgment of the Federal Circuit Court of Australia Dismissing the Applicant's Application That the Primary Judge Recuse Himself
Outcome
The application is dismissed.
Legal Topics
['extension of Time' 'leave to Appeal' 'recusal' 'apprehended Bias' 'fair Work Act Proceedings' 'self Represented Litigant']
['practice and Procedure' 'employment and Industrial Relations'] ['extension of Time' 'leave to Appeal' 'recusal' 'apprehended Bias' 'fair Work Act Proceedings' 'self Represented Litigant']

Case Brief

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Procedural Posture

Application for Extension of Time and Leave to Appeal / Application From a Judgment of the Federal Circuit Court of Australia Dismissing the Applicant's Application That the Primary Judge Recuse Himself

Legal Issues

  1. 1 ['Whether the applicant provided a reasonable explanation for the delay in filing the application for leave to appeal.' 'Whether there was sufficient doubt attending the Federal Circuit Court decision to warrant reconsideration on appeal.' "Whether the primary judge's conduct, including directions about notes in the witness box, rescheduling of hearing dates, attendance at a retirement ceremony, management of cross-examination, and alleged shouting and banging of a cup, provided a basis for recusal."]

Ratio Decidendi

The application was dismissed because the applicant provided no reasonable or persuasive evidentiary explanation for the delay and, in any event, the proposed appeal had insufficient prospects. The alleged matters were either not established on the evidence or were incapable of supporting recusal. The primary judge's procedural management, including rescheduling and witness availability, did not show bias or ill will; the direction that the applicant leave notes at the bar table reflected ordinary practice in cross-examination; and even a moment of irritation or impatience would not, without more, establish disqualifying bias or ill will.

Court Disposition

The application is dismissed.

Orders

  • ['The application is dismissed.' 'Within 7 days of these orders, the applicant may file and serve short written submissions, limited to 3 pages, addressing whether she opposes an order that she pay the costs of the respondent in accordance with s 570(2) of the Fair Work Act 2009 (Cth).']