John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34

FEDERAL COURT OF AUSTRALIA

John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34 Citation: John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34

Appeal from: Comcare v John Holland Rail Pty Ltd (No 3) [2011] FCA 164

Parties: JOHN HOLLAND RAIL PTY LTD (ABN 61 009 252 653) and JOHN HOLLAND PTY LTD (ACN 044 282 268) v COMCARE

File number: VID 168 of 2011

Judges: NORTH, KENNY AND DODDS-STREETON JJ

Date of judgment: 11 March 2011

Catchwords: PRACTICE AND PROCEDURE – courts and judges – apprehended bias – application for leave to appeal against order by primary judge, refusing to disqualify himself – whether a party's unilateral communication with a judge's associate could found or contribute to a reasonable apprehension of bias, where no direct evidence that it involved any discussion of merits or substance – no impropriety in a party's unilateral communication with chambers in relation to procedural, administrative or practical matters – unilateral communication does not per se constitute a ground sufficient to warrant disqualification of judge – primary judge understood and properly applied the correct test – application for leave to appeal refused.

Legislation: Federal Court Rules (Cth), O 52, r 12(1)

Cases cited: British American Tobacco Australia Services Ltd v Laurie (2011) 273 ALR 429; [2011] HCA 2 Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 540 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48 Kanda v Government of Malaya [1962] AC 322 R v Fisher (2009) 22 VR 343 Reg. v Magistrates' Court at Lilydale; Ex parte Ciccone [1973] VR 122 Re JRL; Ex parte CJL (1986) 161 CLR 342