Security & Technology Services (NT) Pty Ltd v Hurley [2022] FCAFC 90

Security & Technology Services (NT) Pty Ltd v Hurley [2022] FCAFC 90

The primary judge's conduct of the trial, including extensive questioning of the appellant's witnesses, repeated interruptions, arbitrary time limits on cross-examination, pursuit of case theories not advanced by the respondent, and interruption of closing submissions, caused a miscarriage of justice by unfairly undermining the proper presentation of the appellant's case, giving rise to an appearance of bias, and departing egregiously from the proper judicial role. The concession on procedural fairness was properly made, so ground 13 was allowed, the relevant orders were set aside, and the matter was remitted for rehearing before a different judge.

Jurisdiction
Australia
Judgment Date
18 May 2022
Procedural Posture
Appeal From Orders of the Federal Circuit and Family Court of Australia (division 2) in a Fair Work Proceeding / Consent Orders After Hearing Allowing Ground 13, Setting Aside Orders and Remitting for Rehearing
Outcome
Ground 13 of the amended notice of appeal was allowed by consent; the appeal was otherwise dismissed with no order as to costs; the declaration and orders below were set aside; the matter was remitted for rehearing before a different judge and referred to mediation.
Legal Topics
['fair Work Act Contravention' 'notice of Termination' 'judicial Intervention at Trial' 'appearance of Bias' 'miscarriage of Justice' 'remittal for Rehearing' 'costs Certificate']
['employment and Industrial Relations' 'appeal and New Trial' 'procedural Fairness'] ['fair Work Act Contravention' 'notice of Termination' 'judicial Intervention at Trial' 'appearance of Bias' 'miscarriage of Justice' 'remittal for Rehearing' 'costs Certificate']

Case Brief

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Procedural Posture

Appeal From Orders of the Federal Circuit and Family Court of Australia (division 2) in a Fair Work Proceeding / Consent Orders After Hearing Allowing Ground 13, Setting Aside Orders and Remitting for Rehearing

Legal Issues

  1. 1 ['Whether the primary judge gave any, or any adequate, reasons for decision.' 'Whether the appellant was denied procedural fairness because the primary judge excessively, unduly and improperly intervened in the conduct of the trial.' "Whether the judge's conduct gave rise to an appearance of bias and caused a miscarriage of justice requiring the matter to be remitted for rehearing before a different judge." 'Whether a certificate should be granted to the respondent under ss 6(1) and 8(1) of the Federal Proceedings (Costs) Act 1981 (Cth).']

Ratio Decidendi

The primary judge's conduct of the trial, including extensive questioning of the appellant's witnesses, repeated interruptions, arbitrary time limits on cross-examination, pursuit of case theories not advanced by the respondent, and interruption of closing submissions, caused a miscarriage of justice by unfairly undermining the proper presentation of the appellant's case, giving rise to an appearance of bias, and departing egregiously from the proper judicial role. The concession on procedural fairness was properly made, so ground 13 was allowed, the relevant orders were set aside, and the matter was remitted for rehearing before a different judge.

Court Disposition

Ground 13 of the amended notice of appeal was allowed by consent; the appeal was otherwise dismissed with no order as to costs; the declaration and orders below were set aside; the matter was remitted for rehearing before a different judge and referred to mediation.

Orders

  • ['Leave be granted to the appellant to file an amended notice of appeal in the terms handed to the Court today.' 'Ground 13 of the amended notice of appeal be allowed.' 'The appeal otherwise be dismissed with no order as to costs.' 'The declaration and orders 1 and 2 made on 2 November 2021 and the orders made on 5...