Kennedy v Secretary, Department of Industry (No 2) [2016] FCA 746

Kennedy v Secretary, Department of Industry (No 2) [2016] FCA 746

Mr Kennedy failed to establish a factual foundation for a reasonable apprehension of bias either on facts prior to or after 12 April 2016. In any event, he waived his entitlement to rely on pre-12 April 2016 matters by abandoning his earlier application for recusal after being advised of the consequences. No basis for disqualification was established; accordingly, the application is dismissed with costs.

Parties
Appellant: Ross Kennedy; First Respondent: Secretary, Department of Industry (Commonwealth of Australia); Second Respondent: Fair Work Commission
Jurisdiction
Australia
Judgment Date
24 June 2016
Procedural Posture
Interlocutory Application in Appellate Proceeding / Decision on Application for Judicial Disqualification
Outcome
Application dismissed with costs.
Legal Topics
Disqualification of Judge, Apprehended Bias, Waiver
Practice and Procedure Employment Law Disqualification of Judge Apprehended Bias Waiver

Case Brief

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Parties

Ross Kennedy

Appellant

Secretary, Department of Industry (Commonwealth of Australia)

First Respondent

Fair Work Commission

Second Respondent

Procedural Posture

Interlocutory Application in Appellate Proceeding / Decision on Application for Judicial Disqualification

Legal Issues

  1. 1 Whether facts asserted by applicant support reasonable apprehension of bias requiring judicial disqualification
  2. 2 Whether waiver precludes renewal of disqualification application on prior facts

Ratio Decidendi

Mr Kennedy failed to establish a factual foundation for a reasonable apprehension of bias either on facts prior to or after 12 April 2016. In any event, he waived his entitlement to rely on pre-12 April 2016 matters by abandoning his earlier application for recusal after being advised of the consequences. No basis for disqualification was established; accordingly, the application is dismissed with costs.

Court Disposition

Application dismissed with costs.

Orders

  • The Interlocutory Application filed on 17 May 2016 is dismissed.
  • The Applicant is to pay the costs of the First Respondent in respect to the present Interlocutory Application.