Federal Court of Australia Walker v Fedex Express Australia Pty Ltd [2024] FCA 1095 Appeal from: Walker v Fedex Express Australia Pty Ltd (No 2) [2023] FedCFamC2G 160 File number(s): Judgment of: COLLIER J Date of judgment: 19 September 2024 Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal – appeal of interlocutory decision of primary Judge to dismiss proceedings – failure to prosecute with due diligence – matter abandoned – applicant walked out of court – opportunity to provide written submissions objecting to summary dismissal provided by case management orders of primary Judge – discretionary decision of primary Judge – principle in House v The King – whether procedural unfairness in dismissal decision – litigant in person – whether email "suspending" matter constituted application for stay of proceedings – whether duty to inform applicant of potential to appeal or apply for stay enlivened – accusation of bias – earlier refusal of primary Judge to recuse herself for alleged bias – principle that judges should not abdicate judicial function by recusal at simple request of party – whether procedural unfairness because dismissal application determined on papers Corporations Act 2001 (Cth) Fair Work Act 2009 (Cth) ss 340, 342 Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 192(4) Federal Court of Australia Act 1976 (Cth) ss 24(1), 24(1A), 24(1AA) Legislation: National Anti-Corruption Commission Act 2022 (Cth) Safety Rehabilitation and Compensation Act 1988 (Cth) Work Health and Safety Act 2011 (Cth) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.04, 13.05, 13.06 Occupational Health and Safety Act 2004 (Vic) Wage Theft Act 2020 (Vic) Aon Risk Services Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (200) 205 CLR 337 House v The King (1936) 55 CLR 499 International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49 Johnson v Johnson (2000) 201 CLR 488 Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 MacPherson v R (1981) 147 CLR 512 Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 244 CLR 427 QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 Sanofi v Parke Davis Pty Ltd (1982) 149 CLR 147 South Australia v Totani [2010] HCA 39 Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; 280 FCR 479 Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45 Hot Wok Food Makers Pty Ltd v United Workers Union (No 3) [2024] FCAFC 51 Cases cited: Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 79 Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission [2022] FCAFC 161 Cubillo v Commonwealth of Australia [2001] FCA 1213 Finch v The Heat Group (No 3) [2017] FCA 64 Frigger v Trenfield (No 14) [2023] FCA 307 Walker v Fedex Express Australia Pty Ltd (No 2) [2023] FedCFamC2G 160 Walker v Fedex Express Australia Pty Ltd [2023] FedCFamC2G 56 Barakat v Goritsas [2012] NSWCA 8 Bezer v Bassan [2017] NSWCA 333 Collier v State of New South Wales (No 2) [2014] NSWCA 461 Cooper v Hopgood & Ganim [1998] QCA 114; [1999] 2 Qd R 113 Kuperman v Permanent Trustee Australia Limited [2023] QCA 54 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Re Velissaris [2014] VSCA 153 Stollznow v Calvert [1980] 2 NSWLR 749 Stone v Moore [2015] SASC 46; 122 SASR 54 Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 106 Date of hearing: 18 March 2024 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondent: Mr J McDougall Solicitor for the Respondent: In-House Counsel ORDERS VID 179 of 2023 BETWEEN: PETER WALKER Appellant AND: FEDEX EXPRESS AUSTRALIA PTY LTD Respondent order made by: COLLIER J DATE OF ORDER: 19 September 2024 THE COURT ORDERS THAT: 1. The Amended Notice of Appeal filed on 2 October 2023 be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT COLLIER J 1. Before the Court are two applications filed by Mr Peter Walker. 2. The first application is an Application for Leave to Appeal from a decision of the Federal Circuit and Family Court of Australia (FCFCOA) in Walker v Fedex Express Australia Pty Ltd (No 2) [2023] FedCFamC2G 160 delivered 3 March 2023 (dismissal decision). This application was filed on 23 June 2023. 3. The second application is an Amended Notice of Appeal (notice of appeal) from the dismissal decision, filed on 2 October 2023. The notice of appeal filed on 2 October 2023 superseded an earlier notice filed in the proceeding on 27 March 2023. 4. Before turning to these applications it is convenient to summarise relevant background facts. BACKGROUND 1. On 25 February 2021 Mr Walker filed an originating application in the FCFCOA referable to the termination of his employment by the respondent (originating application). In the originating application Mr Walker alleged the following contraventions of the Fair Work Act 2009 (Cth) (Fair Work Act): 2. I was terminated 9 months after calling out my supervisor's bullying behaviour. 3. I have had further bullying, reprisal and adverse action taken against me. 4. I suffered an adjustment disorder with anxiety. 5. I tried to take my own life on two occasions because of the bullying and adverse action. … 1. Mr Walker named six managers and human resources employees of the respondent whom he alleged were involved in bullying, reprisal, coercion and adverse conduct. 2. Examination of the file in the FCFCOA indicates that there was significant activity by the parties in the conduct of the proceedings, including the filing of subpoenas by Mr Walker requiring the attendance of witnesses at the ultimate hearing, affidavits filed by both Mr Walker and on behalf of the respondent, and outlines of submissions. 3. On 19 January 2023 the parties returned before the primary Judge for case management. The primary Judge noted that the substantive hearing was listed for 5 days commencing 30 January 2023, with a significant number of witnesses to be called. Her Honour relevantly observed: HER HONOUR: All right. Very good. Now, the reason that the matter was called on this afternoon and I think it's responsive to issues raised by both the applicant and the respondent is that we want to really bed down to the fullest extent possible the way in which this hearing is going to be conducted the week after next. There are a number of issues to work through. And I want us to be in a position at the end of this case management, which is what I'm going to call it, to have some clarity around a number of those issues, including the identity of the witnesses, the projections around the amount of time that things are going to take and to put some clear parameters about what this case will involve. (transcript FCFCOA 19 January 2023 p 2 ll 17-25) 1. A trial plan was presented at the case management hearing to her Honour by the respondent. The filing of a summary dismissal application referable to part of the Amended Statement of Claim was also foreshadowed by the respondent. 2. Mr Walker also had filed a document entitled "Further Extensions of Statutory Provisions and Pleadings Combined", referring to other statutory provisions on which he sought to rely, including the Wage Theft Act 2020 (Vic), Occupational Health and Safety Act 2004 (Vic), National Anti-Corruption Commission Act 2022 (Cth), the Work Health and Safety Act 2011 (Cth) and the Safety Rehabilitation and Compensation Act 1988 (Cth). This document was brought to the primary Judge's attention by Counsel for the respondent. Her Honour observed: HER HONOUR: No, I agree, and I hadn't looked at this document until now. It was filed outside of the – well, it appears by only one day, but it was filed outside of the orders that were made. It does concern me, and the issue of the parameters of the application is one that is vital because, as you say, Mr McDougall ..... of fairness both for the respondent but also for the applicant, but it also means that if we don't have that clarity, the case will very quickly blow out, and it won't be finished this year. So, Mr Walker, I do need to make it quite plain to you that, as far as I'm concerned, and as far as the respondent is concerned and as far as the respondent has prepared its case and its response, the claims that I will be concerned about and which I will make decisions about are those which are set out in your amended statement of claim. So to the extent that any submission or document reports to go outside of those matters, and they are not matters that I can be concerned with, but it also has consequences in terms of decision-making for you when you're preparing to run the trial on your own behalf about the questions that you ask of witnesses and about the submissions that you make. And so from the point of view of making sure that everybody is clear about what the case is about, I think it will be necessary – and I will hear from you in a moment, but it will be necessary for me to, effectively, order this document. The second of the submissions is not a document that you can rely on in the proceeding, and you need to be aware of that from this point going forward so that, as I say in the preparation of your case, this is not a document, and the matters that the documents refers to are not matters that you seek to bring into the application. So I will hear from you on that issue, but you've had the benefit of my thoughts about that, and I say that now, from the point of view of having conducted a number of matters, including adverse action matters where parties have sought to bring in new claims at the time of the trial and it has serious negative consequences for everybody involved. So it's a matter that I'm pretty concerned about getting right from the outset, that everybody is clear about what the case is concerned about. So if you wanted to address me about this, in particular, the second set of submissions that you've filed, I would like to hear from you, please. MR WALKER: You're talking to me, yes, your Honour? HER HONOUR: Yes. Yes. Thank you, Mr Walker. (transcript FCFCOA 19 January 2023 pp 9-10) 1. The case management hearing commenced at 2.40pm and concluded at 4.04pm on that day. 2. On 23 January 2023 Mr Walker filed an application in the FCFCOA seeking the following orders: The date of the 5 day trial in the matter number MLG303/2021 be postphoned to a date later in the year to allow time for a complaint about Judge Symons and her Associate be determined by the Cheif Justice/Cheif Judge in relation to judicial conduct at a recent pre trial hearing that took place on the 19th of January at 2.15pm. The trial can not proceed with Judge Symons as she has shown bias to the respondent. (errors in original) 1. On 30 January 2023 the parties appeared before the primary Judge for the hearing of the application filed on 23 January 2023 as well as the commencement of the hearing of the originating application. 2. At the hearing of 30 January 2023 Mr Walker appeared in person. The primary Judge asked Mr Walker if he wished to press his application filed 23 January 2023, and following his affirmative answer invited him to make submissions directed to that application. The respondent at that time opposed any adjournment of the hearing before the primary Judge. 3. The transcript of the hearing was, materially, as follows: HER HONOUR: No. All right then. Thank you, Mr Walker. I will just hear from you. Just want to get my laptop up. Now, if I'm typing, it's only because I'm taking notes of what you're saying to me. MR WALKER: Okay. HER HONOUR: All right. MR WALKER: Do I stand up, your Honour, or - - - HER HONOUR: Yes please. If you're addressing the court, if you could just stand up, that would be good. Thank you. All right then. Thank you, Mr Walker. MR WALKER: In relation to what we just spoke about, there is the application in a proceeding asking that you be removed as the judge but there's also – I've received documents five days before this document here. It has got nearly 1000 pages in it, and I haven't had time to go through that. The respondent has done this previously. I've – I'm represented with my injury by Zaparas Lawyers and they've got a matter in the AAT and they've – they were meant to get the – the paperwork and everything in six weeks – I believe six weeks prior, and they failed to do so, and they put it in a big folder like – exactly the same as this five days prior to the contested hearing, and on the morning of the contested hearing, the barrister, Cassie Serpell, had to ask that the matter be adjourned because we didn't have time to go through any of the document – there was just too much. HER HONOUR: Sorry, just to – and I don't want to cut across you but I just want to understand what you're referring to, that the folder that you have in front of you – I'm assuming that that's the court book. MR WALKER: I – yes, I think so. I only just found – Mr McDougal - - - HER HONOUR: Mr McDougal will address ..... in a moment but just from your understanding - - - MR WALKER: Yes, Mr McDougal just passed this to me. Sorry. I got – I got one delivered to my house on the 25th which was Wednesday at about 10 to 5 and I got another set of documents delivered on the Friday, so just three days ago, at 5 o'clock. And I haven't had a chance just to go through any of those at all. So pretty much same as the AAT. I would say it would have to be adjourned. Now, in the AAT - - - HER HONOUR: Sorry. I'm just going to stop you just for a moment. MR WALKER: Yes. HER HONOUR: I understand that you have concerns about what happened in the AAT but for my benefit and the matter that I'm dealing with, I'm much more concerned with this proceeding - - - MR WALKER: Okay. HER HONOUR: - - - and your ability to manage your representation in this particular proceeding. MR WALKER: Yes. HER HONOUR: And I want to be sure that you have the opportunity – your application involved two parts. So the first is that I'm removed as judge from hearing your application, and that's a very specific application which concerns myself and my capacity to hear your matter impartially. And you will need to consider the submissions that you make about that application are going to be different from the ones that you make about an adjournment more generally. MR WALKER: Okay. HER HONOUR: So I want you to focus first on that first aspect and - - - MR WALKER: Yes. Okay. HER HONOUR: - - - why you say it is that I am not able to impartially sit in here and then determine your application. MR WALKER: Okay. Well, we had a pre-trial hearing, I would say about a week and a half ago. I'm not too sure the exact date now. HER HONOUR: It was 19 January. MR WALKER: Yes. And, in that hearing, I joined via audio and as soon as I joined, the associate said that – that your Honour would be with us shortly. And when your Honour came, she asked if I could hear her, and I said that I could, and then it just muted or just went silent, and all I heard the associate say was, "We are frozen." And I waited and this took five, 10, 15, even 20 minutes to come back on which I had no idea what was – I couldn't see anything or hear anything. I wasn't told anything. And when your Honour – it came back on, you pretty much spoke exclusively with Mr McDougal for, I would say, 80 to 85 per cent of that hearing. Every time I did get to speak, as soon as I completed a sentence, you would pretty much talk over me and everything Mr McDougal pretty much requested he got and documents thrown out without pretty much – a pretty specific document that has got a lot of detail and a lot of valid things like duty of care, lack of procedural fairness – for you just to say that the whole document is gone without, sort of, specifically going through each thing seems a little bit – pretty much unfair. That's – that's my – my understanding of it. And I don't know what exactly transpired in that gap where there was 20 minutes of nothing. But I have done some investigating. I've put an official complaint in to the Chief Justice and Chief Judge. I've done some investigating and I had some documents here to say that Mr McDougal, counsel for the respondent, works at Vic Bar which you can have a look at if you want and yourself, before you became a judge, worked at Vic Bar for quite a – quite a few years, and I would say that would pretty much be a conflict of interest that you may know each other. And then the other thing is, your Honour, more specifically with the subpoenas, more specifically Dr Garn being in South Australia, I've had to pretty much let him know, in fairness to him, not to come because it seems unfair to get him to come to something that may not occur. You know, he would be away from his family and I think that's a bit unreasonable, so they're – they're pretty much the grounds that I would be requesting an adjournment on. HER HONOUR: All right. So I understand those submissions, thank you, in relation to what I'm characterising as a recusal application. In terms of the adjournment more generally, I understand you to be relying on what you say is the late production and service on you of a court book or the documents within that folder. MR WALKER: Yes. HER HONOUR: And you say that you've had no chance to go through those materials. MR WALKER: Your Honour, I did have a brief look, and I have noticed in a part of that that the respondent has – has admitted to taking adverse actions in the termination. They've never done that before, so I'm not – as I said, it was just a brief look. I'm kind of dealing with mental health problems as well so it's a bit hard. But, yes, I really need to go through and – and when there's – I don't know if there's any other admissions in there. Until I go through it – yes. It's a bit hard to, sort of, do a trial and – and know what's actually going on when I don't know actually what's in there. HER HONOUR: All right. Now, is there anything else you wanted to tell me in relation to your application? MR WALKER: Not – not at this stage. HER HONOUR: No. All right. Well, I'm going to hear from Mr McDougal, and if there's anything Mr McDougal says in his submissions that you wanted to respond to, I will give you that opportunity. All right. Thank you. Mr McDougal, thank you. MR McDOUGAL: Thank you, your Honour. Your Honour, the – the principles in relation to recusal of a judge are – on the grounds of bias are fairly well known and established in cases such as ..... v the Official Trustee in Bankruptcy. I haven't brought authorities on that but the essential requirement is that the – well, that apprehended bias at least is demonstrated by showing that a fair-minded observer might reasonably apprehend that the judge can't bring or won't bring an unbiased mind to a determination of the issues. I think Mr Walker has raised a couple of bases on which he suggests that might be the case. He hasn't made clear whether it's apprehended bias or – or actual bias but I think the case is made clear that the approach for apprehend bias will encompass – will gather up anything that is actual bias. Further, that an application in relation to actual bias would need sound evidence to show that existed. Mr Walker has referred to the pretrial hearing and conference and that was interrupted at the beginning by a break of 20 minutes or so when the court was offline and I think I can say that we were all in the same position ..... hurdles or anything during that period of time. Mr Walker objects to a document being, he says, thrown out that was a document of about 25 pages, I think, being a secondary set of submissions, but I addressed your Honour in relation to that and the objection that I raised was that it referred throughout to a series of claims that were in the amended statement of claim and it referred to numerous statutes, including various statutes in relation to actual contraventions which have not previously been raised which are novel and in large, part of ..... court doesn't have any apparent jurisdiction to hear. In my submission, there was nothing odd or extraordinary or even surprising in your Honour refusing to allow that document; that was conventional. Now, Mr Walker also refers to the fact that he says I work at ..... well, I am a barrister and therefore I am at the Victorian bar and, your Honour, prior to your elevation was a barrister at the Victorian bar. Beyond that, that of itself gives rise to no reason for concern. Almost all judges, not all, but majority have been barristers at their relevant bar. There is nothing in that fact that raises any apprehension of bias or that your Honour would not bring a fair mind to the determination of the issues. So, in my submission, there is nothing in any of that that supports a bias application. I think the issues in relation to the court book and other matters, your Honour wants to hear – deal with separately, so I will leave it at that, if I may. HER HONOUR: Thank you. All right. Mr Walker, was there anything you wanted to say by way of reply to the submissions Mr McDougal just made? MR WALKER: Not too much. He speaks very well; he makes some good points. I agree that, your Honour, you seem a much different person today than what you did in that hearing. I did at the time contact the courts via email, requesting a recording, that they listen to a recording of that and I was informed that it was not recorded. Now, I'm not sure why something like that would not be recorded, but I am of the belief that that further proves that there was bias shown to the respondent. And with all due respect, your Honour, it's – yes – it's disappointing. It's disappointing that that has occurred. I'm not sure as to why your Honour would say certain witnesses would not be allowed to attend when they're named throughout documents that are – that have been put in, filed as evidence in this matter. I spoke with my compensation lawyer and he's of the belief – he actually – his name's Rob Heazlewood ..... and he acts in higher jurisdictions than this, and he has informed me that his understanding is anyone named in evidence, either party has the right to cross-examine them, and that's all I wish to do because I think that's the only way your Honour, whether it be you or another judge – sorry – can determine a fair outcome. That's all. Thank you, your Honour. HER HONOUR: All right. Well, obviously I need to deal with this application before I do anything else and that's what I'm going to do. I'm not going to sit here and make a decision on the spot, I'm going to go away and give some consideration, but it is my expectation that I will have a decision today, it's just that I need to go away and consider what has just been put to me. So what I'm going to do is I'm going to adjourn now. I would ask that you both remain within the vicinity of the court, my associates will be in contact with you both to let you know when I'm going to return to the bench and deliver my decision in relation to the bias application. MR WALKER: Thank you, your Honour. (transcript FCFCOA 30 January 2023 pp 2-6) 1. Following that exchange and those submissions, the primary Judge adjourned the hearing for approximately 90 minutes. On returning to Court her Honour dismissed the 25 January 2023 application (recusal decision). Her Honour gave oral reasons for the dismissal and revised those reasons in Walker v Fedex Express Australia Pty Ltd [2023] FedCFamC2G 56. 2. Her Honour then said: HER HONOUR: For filing on 25 January 2023 is dismissed. Those are the orders I make in relation to that application. What that means, Mr Walker, is that I am the judge that will be hearing your application under the Fair Work Act. Now, this morning you said to me that you also pressed an application more generally that you be granted an adjournment; is that an application that you continue to press? MR WALKER: Yes, your Honour. HER HONOUR: All right. Now, I invited submissions about that this morning, but I will give you the opportunity now. Is there anything more that you wanted to say about that? As I had apprehended your submissions this morning, it was a concern about, in particular, the provision to you of the court book in circumstances which you said were quite late and denied you the opportunity to properly review the material that was contained in it. Was there anything beyond those submissions that you wanted to rely on as a basis for an adjournment in this case? (transcript FCFCOA 30 January 2023 p 7 ll 18-32) 1. Mr Walker responded as follows: MR WALKER: Yes, your Honour. My understanding of the pretrial hearing was meant to be to allocate certain days for witnesses to attend and as with including myself, there will be a total of 22 witness. We would be pushing extremely for time to fit that in this week and at such late notice to tell the witnesses, and that's basically it. (transcript FCFCOA 30 January 2023 p 7 ll 34-38) 1. Mr McDougall for the respondent then submitted: MR McDOUGAL: Yes, your Honour. I'm inclined from my instructor, it does appear that the court book, the hard copy court book was not delivered to the applicant until late on Wednesday afternoon, so that is regrettable and I apologise for that. I will say this: when one looks at the index to the court book, what one sees is that it begins with the pleadings, which all parties have – both parties have had throughout, then the affidavits of the applicant and his witnesses, Dr Crompton and Steven ..... followed by the affidavits of the respondent's witnesses. Again, both parties have had those since they were filed and served in the proceedings, both parties have had those for quite a long time, the last of those, I think, was dated 13 May 2022. So it's not as if there's anything new there. What were new documents, documents which appear numbered in the court – in the index to the court book at 121, a letter of appointment dated 5 January 2007. Further letter of appointment dated 20 April 2008, a job description, a payroll report. Other documents there are documents related to when this proceeding commenced as required with an application to the Fair Work Commission, so documents that were in the Fair Work Commission and again which both parties have had. Then there are the parties' submissions, again, they were exchanged in earlier January – 12 January for the applicant's submissions and 13 January for the respondents. The lists of authorities, again, 12 and 13 January, and those were the documents that were in the court book that was delivered late. The respondent has produced a new court book that has two further bundles of documents attached to it, one is certificates of capacity and the other is returning to work plans. I might apologise, perhaps, not at the right time to make the apology, but I asked my instructor to file, particularly, well add, in particular, the certificates of capacity and then realised that they were already exhibited to the second affidavit of Mr David Barrett, which was already in the court book, that's at documents numbers 91 and 92, the second affidavit of David Barrett and ..... to that had the – already had the certificates of capacity. However, I had asked for those to be provided in part from a sense that they may be sought as a matter of fairness or information for the court. So although, yes, the court book was delivered late and that is regrettable, there was very little that could be said to be new material, it was almost all material which both parties have had in their possession since at least May of 2022. (transcript FCFCOA 30 January 2023 pp 7-8) 1. Subsequently Mr McDougall conceded that the Court book had been provided late to Mr Walker, namely at around 4.40pm two days late (transcript FCFCOA 30 January 2023 p 8 ll 35-40). However Mr McDougall submitted: … there was very little in there that was new. I understand, of course, that Mr Walker is self-represented and unfamiliar with the processes of the court, but if he had the opportunity to look at the index, he would at least have seen that… … HER HONOUR: Okay. So the index wasn't separately provided ahead of that time? MR McDOUGAL: The index had been provided at an earlier time, I think, on the Friday as a draft index seeking Mr Walker's comments on it. Mr Walker didn't respond to that, so that's – that index was essentially the court book ..... produced. HER HONOUR: Yes. All right. Thank you. (transcript FCFCOA 30 January 2023 pp 8-9) 1. In respect of witnesses to be called at the trial, Mr McDougall submitted: MR McDOUGAL: Mr Walker has also just now referred also to the number of witnesses. That was also the subject of a ruling that your Honour made at the prehearing conference. It was the subject of discussion. The issue was raised in that Mr Walker had produced a lengthy list of a number of witnesses that he proposed the respondent ought to call. I had mentioned that to your Honour and your Honour made the comment that it was for each party to determine which witnesses get called. So I don't think that was the subject of a specific order, it was discussed and comment was made in that sense. So as things stand, your Honour, the witnesses to be called are Mr Walker, the respondent has declined to examine Dr Crompton or Mr ..... and then there are the respondent's witnesses, I think, nine in total or thereabouts. So there's – and Mr Walker had previously provided his estimate of time for examination of each of those. So, in my submission, there's nothing in relation to the number of witnesses to be called ..... calls for any special comment. Your Honour, there are – if I may be forgiven for pre-empting. There are a couple of other matters that were in the – that were to be dealt with this morning. One was in relation to returning subpoenas and another was in relation to the issues that are to be determined in this trial and it may be that they will have an effect on the number of witnesses, but only to reduce – it would only be to reduce the number of – potentially reduce the number of respondent's witnesses. I'm uncertain as to the position in relation to the applicant's subpoenas, presumably he will come to that shortly. So, in my submission, although it's unfortunate that the court book was delivered late, there has been little practical prejudice. It may be the something can be done in the course of today that may persist with any prejudice that has been incurred. It may be that some brief adjournment or some period of time may assist Mr Walker, but not that the hearing as a whole should be adjourned off to some indefinite period of time, particularly bearing in mind your Honour's comment that if the hearing does not conclude within the five days allocated to it this week, it's unlikely that it will be heard at all during 2023 ..... the remainder of it or any unheard part be heard in 2023. If your Honour pleases. (transcript FCFCOA 30 January 2023 p 9 ll 17-47) 1. The primary Judge invited Mr Walker to reply to Mr McDougall. The following then occurred: MR WALKER: Yes, your Honour. I'm not sure actually what's happening, whether the document is being allowed or not, but I can say that in briefly browsing at the folder of documents that I've received, the respondent has included all those things in the documents in there, in the folder. So I would presume that it is going to be allowed. As far as witnesses go, I did receive an email at some point, I can't recall exactly when it was that the respondent wanted me to give reasoning for each witness or – yes – each particular witness why they were to attend. HER HONOUR: Well, I think – I'm not sure whether you're talking about the same thing, but it was an order that was made during the case management conference that you were to provide an outline of evidence for any of the subpoenaed witnesses. Not sure whether that's what you're referring to or something else. MR WALKER: I'm not too sure. I saw an email quickly – I've seen a lot of emails lately - - - HER HONOUR: All right. MR WALKER: - - - and I've been swamped with them and I really haven't had a look at all of them. I do have reasoning. I have worked out – I've, like, wrote out reasoning for each of the witnesses if you would like to hear that. HER HONOUR: Not at the moment. MR WALKER: Okay. HER HONOUR: And I say that not because I'm wanting to shut you up or anything, but the most important application that I need to determine at the moment is whether or not this matter proceeds - - - MR WALKER: Okay. HER HONOUR: - - - this week, so I think in your interest, you're best making submissions to me about the – well, taking a step back, I understand that the principle reason why you say that the matter can't proceed this week is because you haven't had enough time to familiarise yourself with the court book, and Mr McDougall has made submissions about why he says that's not the case or not a proper justification for an adjournment. So if there's anything more you wanted to say about that, then now's your opportunity to make those submissions, and if there's anything above or beyond that which you say is a reason why the matter can't proceed this week, then that's also something I need to hear right now. MR WALKER: Okay. Yes, your Honour. At the pretrial hearing, you did mention that we only have five days and it's going to be hard to get through all those witnesses with cross-examination, being that we've also lost virtually half a day today. I – yes, I can't see us – you know, I can't see it fitting into this – what's left of – of this week. HER HONOUR: Well, there's an issue of whether we finish but there's also an issue of whether we get started, and I suppose that's the matter that I'm most concerned with at the moment because it may be that we start and it may be that your projections are quite right and we don't finish by the end of the week, and that's a matter that the court will have to deal with. But if you're saying to me we just cannot start at all then that's a different matter and that's really what I want to hear from you about right now is why - - - MR WALKER: Okay. HER HONOUR: - - - if you say that is the case – you may not – but if you do, I need to understand exactly why that's your position. MR WALKER: Okay. Well, as I'm unrepresented and I'm representing myself, I'm obviously working out cross-examination questions and stuff. I haven't had – with running around to justices of the peace and everything last week, I lost a lot of time doing that to put the application in the proceeding document in. It took us three days to get that right. So I just haven't had time to – to prepare. HER HONOUR: And I'm not in a position to have formed a view about this one way or the other yet, but if you were to be successful in your application for an adjournment, how much time do you say that you need to be adequately prepared to run your case? MR WALKER: I would say at least a month. HER HONOUR: All right. Is there anything else that you wanted to tell the court? MR WALKER: Not at this stage. Thank you. HER HONOUR: All right. I'm going to have to consider your application again…. (transcript FCFCOA 30 January 2023 pp 10-11) 1. The primary Judge adjourned the Court for a further 90 minutes, and on returning refused the application for an adjournment (adjournment decision). The oral reasons given by her Honour ex tempore were as follows: 1. On 20 June 2022, the parties were advised that the applicant's application for remedies under the Fair Work Act 2009 (Commonwealth) was listed for final hearing before me on, 30 January 2023 on a five-day estimate. This morning the applicant made an oral application that the final hearing be adjourned. The application was made principally on the basis that the applicant had had inadequate time to prepare for his case, because he received the court book late on Wednesday afternoon. He told the court that he had not had an opportunity to review all the material or to work out his questions for cross-examination. The applicant explained to the court that he had lost a lot of time when he made his application in a preceding document, this being a reference to the applicant's refusal application which I heard and then dismissed earlier today. 2. The applicant also expressed the concern that there were to be a total of 22 witnesses in his case and that he had anticipated that time would be allocated for each of these witnesses at the case management conference. The applicant considered that the court would be pushed for time, especially when half a day had already been lost to procedural matters. When invited to tell the court how much further time he would require, the applicant told the court that he would need a further month to prepare his case. The respondent opposes the application for an adjournment. The respondent conceded that the court book had been provided to the applicant at around 20 to 5 pm on Wednesday 25 January when, according to trial directions made on 24 December 2021, it should have been filed and served seven days before the final hearing, being Monday 23 January 2023. 3. The respondent submitted, however, that despite this delay there was little practical prejudice to the applicant, as aside from a handful of documents appearing at items 121 through to 131 of the court book, the court book contained very little new material. In this regard the respondent noted that the oldest documents appearing in the court book were affidavits filed by the respondent in May 2022. In the context of a proceeding that has been on foot since February 2021 and listed for final hearing since June 2022, I'm not persuaded that it's in the interests of justice or consistent with the court's obligations under section 190 of the Federal Circuit and Family Court of Australia Act 2021, to adjourn the final hearing of the application. 4. Having reviewed the index to the court book, I'm satisfied that the documents which it contains, with few exceptions, are documents that either the applicant created or relies on himself or documents filed by the respondent which have been in existence since no later than May 2022. The documents comprise material with which one would expect the applicant to be well acquainted, given that they comprehend the pleadings, the parties' affidavits and the parties' submissions. Indeed, the basis for much of the applicant's submission that he should be entitled to call further witnesses reflected a level of familiarity with the respondent's affidavit material. I note also that the applicant was provided with a copy of the court book index on Friday. 5. Although I take account of the fact that the applicant represents himself in these proceedings, I am satisfied that he has had ample time to familiarise himself with this material and to prepare his case by reference to it. Whilst I make no criticism of the applicant for preparing and then prosecuting his application in a proceeding, it goes without saying that this exercise will have diverted him from focusing his efforts in the preparation of this case. The applicant told the court that he would need a further month to prepare. However, to adjourn the hearing to a date in the indeterminable future is antithetical to the court's overarching obligation to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. 6. It ignores the reality that the applicant had an opportunity to respond to the material filed by the respondent and to prepare his case from at least May 2022. The court must also confront the fact that the respondent's witnesses are ready to appear and cost has been expended in getting them to court and preparing them for this week's trial. It also ignores the reality that this matter has been allocated five days this week and we would be unlikely to get a further listing of five consecutive days until at least next year. Whilst I appreciate that in many ways the art – or I should say, it is not a perfect science in terms of predicting how long a proceeding will take – and some efforts have been made to provide estimates as to the amount of cross-examination that will occur in this case. 7. And there will be some give and take in that exercise. But I consider it preferable that the matter start today and continue for its allocated time. If the applicant indicates that he requires more time to prepare questions for a witness, then this will be accommodated to the extent practicable and reasonable. The court will proceed to hear the case on the material that has been filed, which for the avoidance of doubt means that the applicant will be permitted to cross-examine the nine respondent witnesses that are on affidavit, but that otherwise the court will not allow the case to be further expanded, in circumstances where I'm satisfied that the applicant had an opportunity to respond to the respondent's case by filing reply affidavits back in May 2022 and to file and serve any outline of evidence he intends to call from any witness who he intends to subpoena at that time also. (Ex Tempore Judgment transcript 30 January 2023, annexed to the affidavit of Catherine Tirado sworn 14 March 2024) 1. The following then occurred: HER HONOUR: Those are the reasons that I explain the reason why I refuse the application for an adjournment. In those circumstances, it should be clear, Mr Walker, that the matter will proceed today, we will get as far as we can with the application. It's my hope that we can conclude within the days that have been allocated and as I've indicated, I consider it preferable to start rather than to adjourn and to try and find a further five days some time in the future. So that being the case, we need to now work out what the next steps are. I am keen to make the best use that we can of the couple of hours that we have remaining before the court adjourns this afternoon. I'm not sure, Mr Walker, whether you have given any thought as to what should be the next steps that we take if the matter was to run. MR WALKER: Your Honour, they will win. They win. I concede. HER HONOUR: Well - - - MR WALKER: That's not fair. I concede. I'm sorry. I concede. HER HONOUR: I'm going to - - - MR WALKER: I've conceded. HER HONOUR: - - - urge you to - - - MR WALKER: I've conceded. They win. HER HONOUR: Mr Walker, I would like you to take some time to consider your position. MR WALKER: I'm sorry, but I can't. I physically can't prepare it. I've got mental health problems. I see – they haven't – they've lied and blocked any – and I can prove it as it's there in your evidence that they've blocked supporting my mental health, I've had to pay for it all myself. I'm trying to prepare this by myself and it's just impossible, so they win. I concede. Sorry. HER HONOUR: No. You don't need to apologise. MR WALKER: I can't do it. I can't do it. I physically can't do it. I mentally can't do it either. HER HONOUR: Mr Walker, I just don't want you to walk out of this courtroom. MR WALKER: I'm sorry. I've given you my honest appraisal of the situation and I can't – I can't pull any miracles, so I concede. If I've got to wave a white flag, I will wave a white flag. HER HONOUR: All right. Well, I'm going to – because I think in fairness to you, give you an opportunity just to consider your position fully, and it may be that what you say to me now is your final position, but I don't want you to be shut out because of - - - MR WALKER: Well, I've been shut out all along. HER HONOUR: All right. MR WALKER: I mean – hang on. How can – we haven't even established – I said to you before that we haven't even established days for witnesses to appear. So, witnesses don't even know. I've had to block – tell the people subpoenaed not to come, so how can you progress? How can - - - HER HONOUR: And that's - - - MR WALKER: - - - you proceed? That's just incomprehensible. Sorry. I can't gather that. A guy has got to make arrangement – a doctor has got to make arrangements from South Australia on how he gets here, he needs some time to do that. HER HONOUR: Can I just – I don't want to interrupt you. I understand what you're saying to me and it may be that it wasn't fully explained what would happen next, but the idea is that we would use this afternoon to the extent possible to canvas these issues and to work out as best we can a trial plan for the four days that we have remaining. So those are matters that you could raise with me if that's something that you wanted to do. MR WALKER: I concede. I've got back pain. I'm in pain and I'm done. I don't normally stay this long in this and that, so I concede. HER HONOUR: Can I just get you to take a seat just for one moment? I just want to hear from - - - MR WALKER: Sorry. Sorry, your Honour, I just don't get it. Like, I can't comprehend how this can go ahead. In any jurisdiction or any court of law, I cannot comprehend how this can go ahead. I've clearly told you I received documents, a folder that big in the AAT and - - - HER HONOUR: All right. I'm sorry - - - MR WALKER: Hang on. In the AAT, that was – that was – sorry – no - - - HER HONOUR: I just have to make one thing – Mr Walker, I've ruled on the application for an adjournment. MR WALKER: Yes. No worries. HER HONOUR: I'm happy to step into case management mode. MR WALKER: Thank you. Thanks for the time. Thank you, Mr McDougal. Thank you, Ms ..... HER HONOUR: All right. Mr McDougal, I'm reluctant to invite you to make submissions in the absence of the applicant, but I do think that given he has walked out of the courtroom and that's on transcript and he said what he had, I would invite you to – I'm not asking you to necessarily tell me what I should do at this point in time, but if there's a submission you wanted to make as to what you think the best way forward, even if it's a holding position, I just wanted to hear from you now and give you that opportunity. MR McDOUGAL: Well, your Honour, I'm not actually quite prepared for what has just - - - (transcript FCFCOA 30 January 2023 pp 12-14) 1. It appears that Mr Walker departed the Court room at around that point. 2. Mr McDougall for the respondent then made submissions referring to the fact that the case concerned events which had occurred in 2020, and the effect on evidence of witnesses by the passage of time. He then submitted as follows: Your Honour, I haven't – I perhaps should note I haven't looked at the court's powers of summary determination in this context, but in my submission an appropriate course of action would be to dismiss the proceeding and there may be some ability to allow Mr Walker a right of reinstatement or it may be that he can rely on some ground of appeal, but that from the perspective of the respondent, it is highly unsatisfactory to go to the time, trouble and expense of being here and of being prepared for a five day hearing and it would be equally unsatisfactory to have the potential to return for no better purpose than has been achieved today. On that basis, your Honour, it is my submission on behalf of the respondent that the matter ought be struck out and as an alternative to that, that it be permanently stayed, but I think that recourse to the Rules that struck out is probably the appropriate order on the basis that the applicant has abandoned the matter and done so in unequivocal terms. (transcript FCFCOA 30 January 2023 pp 14-15) 1. The primary Judge then stated that it would be appropriate to receive written submissions in respect of the question of disposition of the originating application. Her Honour further observed in relation to the proposal that the matter should be struck out: HER HONOUR: Because I obviously have to be careful in exercising that jurisdiction. I don't doubt that I have the power to make such an order, but I just want to make sure that that power is exercised responsibly and as fairly as possible, even though these are fairly unusual circumstances. (transcript FCFCOA 30 January 2023 p 15 ll 14-17) 1. On 30 January 2023, the primary Judge ordered as follows: THE COURT ORDERS THAT: 1. The application in a proceeding lodged on 23 January 2023 and accepted for filing on 25 January 2023 be dismissed. 2. The oral application by the applicant for the adjournment of the hearing is refused. 3. The respondent file and serve written submissions on the question of the disposition of the application filed 25 February 2021. AND THE COURT NOTES: A. The applicant had left the courtroom at the time of the pronouncement of Order 3. 1. On 1 February 2023 the respondent filed submissions concerning final disposition of the proceeding. On the same day the primary Judge made the following orders: UPON APPLICATION MADE TO THE COURT and upon being considered in chambers and there being no appearance by the parties THE COURT ORDERS THAT: 1. The applicant file and serve any submissions in response to the respondent's submissions filed on 1 February 2023 by 15 February 2023. 2. The respondent's application that the proceedings be dismissed will be determined on the papers. 1. On 2 February 2023 it appears that Mr Walker emailed the Victorian Registry of the Federal Court of Australia. A copy of the following email was annexed to Mr Walker's affidavit filed in the present proceeding on 2 October 2023. The email was in the following terms: Dear Admin, I am the applicant Mr Walker in matter number MLG303/2021. I have previously notified the court and am notifying the court again. I firmly believe that the 3 hearings with Judge Symons have been ttotally biased in favour of the respondent. I have also sent an Official complaint to the Chief Justice about the situation. I have made reasonable requests that have been denied by Judge Symons. Now the respondent is requesting the matter be dismissed. The matter needs to go to trial as was always the case but with a neutral Judge. In fact with the 22 witnesses that will be required to attend the trial. This will clearly take longer than 5 days so the matter needs ti be transferred to the Federal Court in Melbourne. Im not sure why Judge Symons is refusing me the right to bring witnesses I have subpoennaed, other witnesses including a doctor who wants to give evidence supporting myself that are all named in evidence not be allowed to attend the trial. I also am not sure why I am being refused the right to an adjournment when the Respondent dumps 1000 pages of documents on me 5 days before the trial. The respondent did the same thing to Zaparis lawyers last year in the Administrative Appeals Tribunal and the magistrate had no hesitation in adjourning the matter to a date that is yet to be fixed. I am formally requesting the matter not be thrown out. The last two and a half years I have always been treated fairly in many hearings. Unfortunately this has not occurred with Judge Symons which is dissapointing. Im not sure when I have an email from judge symons associate stating there would be a hearing in November this year about my complaint of bias by Judge Symons. Why I had a hearing on the 30th of January with Judge Symons herself where she git to determine whetger she was biased against me. Of course she denied it. This has to be determined by a neutral judge surely. Please do not let Judge Symons dismiss my matter which will be further bias towards the respondent that have already admitted taking adverse action against me by dismissing myself in some of these new documents which I have had the time to look through. (errors in original) 1. It appears that on 7 February 2023 Mr Walker emailed the Chambers of the primary Judge. A copy of the following email (which appeared also to be copied to Ms Tirado of the respondent and Mr McDougall of Counsel) was also annexed to Mr Walker's affidavit filed 2 October 2023. The email was in the following terms: Dear Associate. Case Number MLG303/2021 is temporarily suspended from any further hearings or orders until the Applicants Official complaint into Judge Symons biased behaviour is investigated by the Chief Justice. Therefore pending an outcome from the Chief Justice, no further correspondence between the Applicant and Judge Symons Associate will be required. 1. No submissions were filed and served by Mr Walker in accordance with the primary Judge's orders made 1 February 2023. PRIMARY JUDGMENT 1. The primary Judge delivered judgment on 3 March 2023 in the dismissal decision. Her Honour ordered as follows: 1. Pursuant to r 13.05(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), proceeding MLG303/2021 be dismissed. 1. After setting out background facts and the submissions of the respondent, the primary Judge at [27] noted that the FCFCOA was conferred with a discretion, pursuant to r 13.05(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (FCFCOA Rules) to dismiss an application if the applicant concerned had, amongst other things, failed to comply with one of its orders or to prosecute the proceeding with due diligence. Her Honour noted that the discretion must be exercised judicially and in accordance with principles of justice, however that circumstances may exist where it will be appropriate to bring proceedings to an end prematurely if such proceedings would amount to an abuse of process or their prolongation would clearly inflict unnecessary injustice upon the opposite party. 2. Her Honour then found as follows: 32. While this is not a case characterised by a history of non-compliance on the part of Mr Walker and the catalyst for the respondent's application was a sequence of events that took place over a relatively short period of time, including when assessed against the history of the proceeding, I nonetheless consider it appropriate that the proceeding be summarily dismissed. 33. It is obvious that through his words and his actions taken on 30 January 2023, Mr Walker was communicating in the plainest of terms that he had no intention then, or indeed at any time in the ascertainable future, of prosecuting his case against the respondent. Although it is true that Mr Walker had sought an adjournment that ostensibly would have provided him with further time to make preparations for his conduct of the proceeding, it is also the case that the adjournment was refused for reasons that included a concern that further time would not have assisted the applicant. I am also cognisant that the reasons offered for Mr Walker's decision to "concede" the application – which comprehended physical and mental health challenges – were different from those previously (but very recently) offered and unsupported by any evidence. They reinforce rather than detract from my impression that Mr Walker's disinclination and lack of preparedness to confront the reality of his application represents more than a temporary state of affairs. In this respect, it is apt to conceptualise Mr Walker's attitude to the proceeding as continuing in nature. Allied to these concerns is the indication from Mr Walker, in the exchange reproduced at [6] above, that he would be unwilling to accept that parameters might reasonably be placed around his case, including the number of witnesses that he might be entitled to call. 34. I consider that these matters coalesce to make it almost inevitable that any further opportunity that might be provided to Mr Walker to prosecute his application (acknowledging that this is not something that he presently seeks) would be productive of further delay, loss of Court time and involve prejudice to the respondent and those who would be involved in the defence of Mr Walker's case against it. 35. In a Court that is committed to a case management system and which is governed by case management principles that emphasise the efficient use of judicial and administrative resources and the disposal of proceedings in a timely manner, I consider that the tension that exists between the right of Mr Walker to prosecute his case for remedies under the FW Act against the respondent as against the obligation of the Court to maintain the integrity of its processes and to responsibly distribute and apply its resources is appropriately balanced in this case by an order that the application be dismissed under r 13.05(1)(a) of the Rules. 36. As a result of what occurred on 30 January 2023, the Court lost five days of allocated hearing time and the respondent made wasted preparations for a contested final hearing, with the financial and human cost that this entails. This is not a course that the Court is prepared to further sanction or facilitate through the maintenance of the proceeding. In reaching this conclusion however it should be clear that I have not at any time concerned myself with the merits of the application as it has been unnecessary for the disposition of the proceeding to do so. CURRENT PROCEEDING 1. As I noted earlier, Mr Walker filed both an application for leave for leave to appeal, and an amended notice of appeal. Leave to Appeal 1. The decision of the primary Judge in dismissing the proceeding in the FCFCOA was plainly an interlocutory decision, because her Honour did not determine the merits of the underlying dispute before the FCFCOA: Cubillo v Commonwealth of Australia [2001] FCA 1213 at [182]; Finch v The Heat Group (No 3) [2017] FCA 64. As the High Court pointed out in Sanofi v Parke Davis Pty Ltd (1982) 149 CLR 147 at 153: …it is the legal force of the judgment in question, and not its practical effect, that has to be considered in determining whether or not the judgment is a final one: see Hall v. Nominal Defendant; Carr v. Finance Corporation of Australia Ltd… (footnotes omitted) 1. It follows that Mr Walker required leave of the Federal Court of Australia (Federal Court) to appeal the primary Judge's decision pursuant to s 24(1A) Federal Court of Australia Act 1976 (Cth) (Federal Court Act). 2. Pursuant to Orders dated 28 September 2023, Wheelahan J ordered as follows: Notwithstanding that the applicant filed a notice of appeal on 27 March 2023, the proceeding will be treated as including an application for leave to appeal if that is necessary, and the application will be subject to full argument at the hearing as if on appeal. 1. The Mr Walker (the appellant) is a litigant in person, who (it appears) understood that leave to appeal had been granted by Wheelahan J (see for example para 10 of appellant's submissions in reply filed on 21 December 2023). I further note that the respondent's written reasons for opposing the application for leave were the same as its reasons for opposing the appeal itself. 2. At the hearing before me I considered that the most efficient manner for the matter progress was to grant leave to appeal, and to proceed to hear the parties on the appeal. Accordingly, I granted leave to the appellant to appeal the primary Judge's decision and heard the parties on the merits of the appeal. The Appeal 1. In the notice of appeal the appellant stated as follows: I am the applicant, Mr Walker. I am appealing the whole orders made by Judge Symons on the 3rd of March, 2023. I am appealing these orders to get my case back into the court system and with adequate time allowed to prepare for the final hearing and adequate time for all 22 witnesses to be allowed to attend the trial. My case number is MLG303/2021. (as in original) 1. The grounds of appeal on which the appellant relied are as follows: 1. [State briefly but specifically, the grounds relied on in support of the appeal] 2. The applicant was denied procedural fairness. The respondent has now admitted after 3 years of denying they took adverse action in dismissing the applicant. So dismissing the application is letting corporations commit crimes and not be held to account. 3. See the particulars on page 5 regarding one way in which the applicant alleges that he was denied procedural fairness. (as in original) 1. The "particulars on page 5" of the notice of appeal were as follows: Further particulars of the judge's failure to accord the applicant procedural fairness in the summary dismissal application 1. The summary dismissal application was heard on the papers. 2. The appellant was an unrepresented litigant with no formal legal training. 3. On 7 February 2023, the appellant emailed the judge's chambers stating that 'Case Number MLG303/202l is temporarily suspended from any further hearings or orders until the Applicants Official complaint into Judge Symons biased behaviour is investigated by the Chief Justice'. 4. The judge did not provide the appellant with sufficient information about the court's processes and procedures so as to enable him to make an informed choice about how to exercise his legal rights, including: a. whether and, if so, how he could appeal the bias and adjournment application decisions made on 30 January 2023; b. whether and, if so, how he could apply for a stay in MLG303/2021 while an appeal from an interlocutory decision was being heard and determined; and c. that case number MLG303/2021 was not 'temporarily suspended from any further hearings or orders' and her Honour otherwise had the power to hear and determine the summary dismissal application. (as in original) 1. The appellant sought the following orders: 1. [State what judgment or orders the Appellant wants instead of the judgment or orders appealed from] 2. The applicant is wanting file number MLG 303/2021 reinstated. 3. All 22 witnesses be allowed to attend the trial for cross examination which Judge Symons wrongfully denied. (as in original) 1. In support of the notice of appeal the appellant filed an affidavit dated 28 September 2023 to which he annexed: * an email sent by him to the Victorian Registry of the Federal Court on 2 February 2023; and * an email sent to the Chambers of the primary Judge on 7 February 2023. SUBMISSIONS OF THE PARTIES Submissions of Mr Walker 1. The appellant filed two sets of written submissions. In summary those submissions were as follows: * The reputation of the Courts, and the justice system as a whole, is at risk of being seriously damaged by the actions of the primary Judge. * Regarding his health issues: + The appellant has health issues and takes medications for those health issues. + The respondent has failed to pay the appellant his entitlements in the amount of $53,496.00, referable to long service leave, annual leave, and compensation payments. The appellant has not had an income since late May 2023, which has severely financially ruined the appellant and added further stress to the appellant and his overall mental health issues. + The primary Judge's associate made an error regarding the date of the recusal hearing. The appellant did not see the email correcting the error. Consequently, the appellant was ambushed by the recusal hearing as he thought the 30 January 2023 hearing was only to address the adjournment application. The appellant did not have sufficient medication to see him through the entirety of the day of hearings on 30 January 2023. + The appellant's chronic pain would have disrupted his ability to stand on his feet to make submissions and to concentrate on answering questions under cross-examination. The respondent was aware that the appellant suffered from chronic pain resulting from a work accident that occurred on 19 April 2019. * Regarding bias in the conduct of hearings before the primary Judge: + He queried whether there were actually technical or audio difficulties to which her Honour referred during the hearing. + It appears that "something untoward" occurred between the respondent and the primary Judge in the 20-minute delay where the appellant was muted from proceedings on 19 January 2023. The respondent included all of the statutory provisions listed in the appellant's "Further Extension of Statutory Provisions and Pleadings Combined" document, in the copy of the Court book served on the appellant on 25 January 2023. It follows that the respondent expected that document to be included until it opportunistically had the document dismissed. + The primary Judge erred at the case management hearing of 19 January 2023 in refusing to allow the appellant to rely on a "Further Extension of Statutory Provisions and Pleadings Combined" document. That document should be reinstated. + The primary Judge repeatedly spoke over the top of the appellant at various parts of the case management hearing on 19 January 2023 and the two interlocutory hearings on 30 January 2023. The appellant did not get fair hearings because he was constantly being cut off or shut down by the primary Judge. * Regarding the calling of witnesses at the trial before the primary Judge: + The respondent ambushed the appellant in objecting to his witnesses and failed to follow proper procedure in doing so. + It is unfair and a clear breach of transparency laws to deny the appellant opportunity to cross-examine senior executives of the respondent. The respondent had selected only 9 witnesses to give evidence, and accordingly had cherry-picked its witnesses. + No dates or particular days had been set for the nine witnesses to attend the trial prior to the hearing on 30 January 2023. + The appellant had informed the primary Judge that there would be 22 witnesses required to attend the trial. The appellant had also articulated that he would need to advise the subpoenaed witnesses in advance of their appearance date and out of respect for their livelihoods he had advised them not to attend the court until further notice as he had anticipated that the reasonable request for adjournment would be granted. + One of the appellant's witnesses was travelling from Adelaide. * Regarding the decision of the primary Judge to refuse the adjournment application on the basis that the court book was served late: + The primary Judge erred in refusing to adjourn the hearing in circumstances where the trial book was delivered late. It appeared that there was additional material in the trial book. + The respondent admitted taking adverse action against the appellant which it had never admitted at any point prior. Dismissing the appellant's matter permitted a large corporation to break the law. + The conduct of the respondent in failing to provide the court book on time constituted deliberate, tactical and repeated action, previously committed by the respondent to the appellant's compensation lawyers in the Administrative Appeals Tribunal (AAT). + The appellant's request of a one-month adjournment was reasonable. + The primary Judge was wrong to find there was evidence of an incapacity on the part of the appellant to prepare for trial because he had been in possession of almost all the hearing material for over six months. He had not in fact been in possession of all of the documents for six months and had articulated to the primary Judge that he had discovered critical new information in the court book which he had only been in possession of for five days. * Regarding the merits of the originating application against the respondent: + The respondent has a toxic workplace culture. + The appeal must be successful to allow the appellant the chance to expose the lies and fabrications of the respondent and to bring justice to people who hold positions of power and are supposed to protect the appellant. Ultimately eliminating the respondent's toxic culture. + The appellant has a strong case against the respondent that the appellant cannot and more importantly will not let the respondent treat vulnerable workers this way any longer. + The appellant had recently been made aware of an additional form of wage theft that the respondent has perpetrated against appellant, in its failure to make any instalments into the appellant's superannuation fund since 22 May 2022. + The appellant is an integral person who is a voice not only for himself, but for all other former employees that have been subjected to the vile treatment the toxic culture of the respondent thrives on. + The primary Judge never concerned herself with the merits of the case. The primary Judge therefore failed in her duty to familiarise herself with the merits of the case yet ordered the trial to commence. * Regarding the primary Judge's alleged failure in duty to assist the appellant: + The appellant was unaware of having the opportunity to include documents he would like included in the court book to support and ultimately strengthen the appellant's case against the respondent. The primary Judge failed in her duty to explain the purpose of the court book. + Any failure on the part of the appellant to comply with Court orders arose because the primary Judge failed in her duty as a judge to explain the process and purpose of the court book to the appellant and the fact that the appellant had not been able to fully prepare his case for trial because of the deliberate late serving of the court book by the respondent. Overall, however, there had been no failure on the part of the appellant to comply with Court orders. + The primary Judge knew that the appellant was an unsophisticated litigant who had limited knowledge of legal and court processes and procedures. Although the appellant walked out of the courtroom before the primary Judge could explain how the proceeding might continue that day, this did not remove the need for the primary Judge to ensure the appellant understood the practice and procedure of the court generally. + When the primary Judge's attention was brought to the appellant's email of 7 February 2023 her Honour ought to have listed the proceeding for hearing and explained to the appellant how he might apply to stay the proceeding until the appellant had explored his appeal rights. The primary Judge ought to have made it clear to the appellant that, unless the proceeding was stayed, Her Honour retained the power to hear and determine the respondent's application and was able to dismiss the case. In not doing either of these things, the primary Judge failed to provide due assistance to the appellant and denied the appellant procedural fairness. + The primary Judge failed to take into account the appellant's predicament. + The appellant could not respond to the respondent's summary dismissal application as the appellant had no knowledge of it. Had the appellant been provided with due assistance and been made aware of that application, he may have made submissions and sought leave to adduce evidence as to his physical and mental health at the time of the hearing of 30 January 2023 and afterwards. + It was plain that the appellant wanted a Stay of Proceeding, and it was further denial of procedural fairness that the primary Judge failed to inform the appellant of the correct court procedure to achieve this. * Regarding further issues of bias on the part of the primary Judge: + The primary Judge is potentially biased in favour of the respondent, which was represented by Counsel, because her Honour had been at the bar before becoming a judge and may know the respondent's Counsel. + A litigant should not be required to proceed to trial when there are multiple written complaints regarding alleged bias by that litigant against the Judge presiding over that matter. The primary Judge's dismissal of the matter in those circumstances was further evidence of actual bias on behalf of the primary Judge. + There was a disconnect between the reasoning of her Honour during the hearing and the written reasons published. * Regarding the appellant's alleged failure to prosecute the matter before the primary Judge: + The appellant had been compliant with Court processes and orders. + The respondent was incorrect to contend that the appellant was unable to prepare for trial. + The appellant has been denied procedural fairness as he has never had a second opportunity to prosecute the appellant's case against the respondent. + The appellant had never not intended to fully prosecute the matter against the respondent. + The appellant did not file any submissions as he wanted no further communication with the primary Judge or her associate. The appellant had lodged multiple complaints with the Chief Justice about the conduct and alleged bias against the appellant by the primary Judge. The appellant felt it would have been a fruitless exercise to comply with the orders of the primary Judge as he believed that her Honour had not previously treated him fairly and would not treat him fairly or consider any submissions the appellant made fairly. 1. At the hearing of the appeal, the appellant handed up further supplementary written submissions (appellant's further supplementary submissions) which he had prepared as an aide memoir and had intended to read the document aloud in Court. In the circumstances, and with the agreement of the parties, I considered it appropriate to grant the appellant leave to file that document in the form of Exhibit 1(A), a 67-page document being a commitment to writing by Mr Walker of his oral submissions. Mr Walker agreed that that document set out submissions he would otherwise have made orally at the hearing of the appeal. The appellant's further supplementary submissions reiterated and, in some instances, expanded, on the earlier submissions. He further submitted that: * Regarding the conduct of current and potential future proceedings: + Many of the documents included in the appeal book by the Registrar had been opposed by the respondent on the grounds of relevance. Justice Wheelahan ruled that those documents were relevant to the appeal proceedings. + The appellant would like the opportunity to add whistleblower protections under the Corporations Act 2001 (Cth) to his statutory provisions and add more evidence in relation to that. + The appellant would like to add Ms Tirado, the respondent's in-house solicitor, to the witnesses for cross-examination. + The appellant requested that the matter not be returned to the FCFCOA, as the seriousness of the matter required the matter to remain in the Federal Court of Australia. The appellant suggests that should this request be accommodated, that Justice Wheelahan should preside over the final contested hearing. * Regarding bias in the conduct of hearings before the primary Judge, particularly the 19 January case management hearing: + The appellant was only joined to the 19 January 2023 case management hearing by audio and consequently could not view the courtroom. + The 20-minute delay on 19 January 2023 should have warranted an explanation for such delay. The lack of explanation does not rule out the possibility that something untoward occurred while the appellant was muted. The appellant is of the firm belief that something untoward occurred. Everything bias related has occurred after that point. + The appellant was under the firm impression that the case management hearing on the 19 January 2023 was only to agree on or otherwise for the primary Judge to decide an order for witnesses to appear at the trial and for the court to allocate particular days for those witnesses to appear on and that is all. + The primary Judge allowed the respondent to set the agenda for the case management hearing on 19 January 2023 by accepting the respondent's proposed trial plan. If the appellant had been given the opportunity, he would have raised additional things. This is evidence of actual bias by the primary Judge in favour of the respondent. + In the first 4 pages of the 19 January 2023 transcript (approximately the first 5 to 10 minutes), counsel for the respondent speaks around 797 words, the primary Judge speaks around 781 and the appellant only speaks 41 words. There is a disparity between the appellant and respondent getting to speak equally. This appears to be bias on the part if the primary Judge and a denial of procedural fairness to the appellant. + The issue of word count at the case management hearing can be distinguished from the fact that the respondent spoke more at the hearing before Justice Collier, as at the hearing a written summary of submissions was handed up and at the case management hearing the appellant attended by audio so nothing supplementary was provided. + The respondent did not formally file or serve any application seeking an order that a number of the claims put forward by the appellant should be stayed or dismissed on the ground that they have no reasonable prospect of success. This was evidence that the respondent rethought their position in relation to the appellant's outline of submissions after the 20-minute delay. As the respondent did not file and serve an application on the appellant, it was null and void. + Three pages of the transcript of the 19 January 2023 case management hearing discussed a subject that the appellant had no idea he would be discussing and should not have been discussed as the respondent had not filed and served a relevant application in the proceeding. This was a form of bias by the primary Judge against the appellant. + No formal objection to the appellant's "Further Extensions of Statutory Provisions and Pleadings Combined" document was filed and served by the respondent. The respondent's contest of that document was purely to gain an advantage over the appellant by taking away a massive part of the appellant's armoury prior to the matter going to trial. The appellant was denied procedural fairness as he was not given time nor warning to provide proper reasoning for the relevance of each point in the document. + The primary Judge's dismissal of the "Further Extensions of Statutory Provisions and Pleadings Combined" document is further evidence of actual bias in favour of the respondent by the primary Judge and constitutes an abuse of power. + The appellant requested that the "Further Extensions of Statutory Provisions and Pleadings Combined" document fully reinstated to the matter if the appellant was successful on appeal. + At the 19 January case management hearing, the respondent objected to the admission to evidence of a USB stick containing audio of Mr Walker after a suicide attempt. This should not have been discussed at the case management hearing, as the purpose of that hearing was only to establish the order for witnesses to appear. + The case management hearing on 19 January 2023 was held in closed court, as the hearing was not open to the public. This was in contravention of the open court principles which provides a visible assurance of the independence and impartiality of the Court. This facilitated the events that took place in a biased case management hearing. * Regarding the calling of witnesses at the trial before the primary Judge: + The respondent clearly opposed certain subpoenaed witnesses because they would be very damaging to the respondent's case. + The primary Judge said "well that's right" to the proposition that witnesses sought by the appellant were not required to appear because they had not filed affidavits. The respondent would be in breach of transparency laws if it did not require the witnesses that the appellant wished to cross examine to appear at trial. + The primary Judge commented that by and large the choice of witnesses was a matter for the respondent. This is incorrect. Both parties have the right to call as many witnesses as they feel will improve or strengthen their case. + Just because the respondent did not wish to cross examine an expert witness, the right to do so should not be taken away from the appellant as long as the appellant felt the expert witness could provide evidence to support his case. + The appellant could not afford to subpoena the eight witnesses of the respondent. + The appellant did not know how to contact the eight witnesses of the respondent as he did not have their contact details. + As those witnesses were from the respondent, the appellant could not contact them as it may be perceived as bullying or intimidating witnesses against witness rules. As such it makes sense that the respondent should organise those witnesses to attend trial for the pursuit of natural justice. This would align with the respondent's transparency objectives. + In stating that the appellant should expect that the witnesses will be from the respondent, the primary Judge falsely commended and showed bias. The primary Judge tried to deter the appellant from calling witnesses he wished to cross examine to strengthen his case with the insinuation that he would meet quite significant resistance. + The primary Judge incorrectly stated that witnesses who are subpoenaed need to put affidavits in. This is not correct, witnesses who are subpoenaed do not put affidavits in. + The appellant should not have to provide submissions as to the relevance of his subpoenaed witnesses when no formal application was put in by the respondent. + The decision of the primary Judge not to adjourn the matter when she was aware that the appellant had told witnesses not to attend Court as the matter was most likely going to be adjourned, disadvantaged the appellant. He consequently did not have sufficient time to notify the subpoenaed witnesses that the trial was going ahead and the witnesses had no time to organise to attend. This effectively wiped out the appellant's witnesses from attending. + The appellant would be disadvantaged financially if Dr Ghan was required to attend trial at short notice, i.e. between the 30 January 2023 and 3 February 2023, due to the cost of last-minute flights from Adelaide to Melbourne. + The primary Judge breached her judicial duty in not considering evidence available to her in relation to the witnesses the appellant wanted to cross examine but the respondent is trying to protect by not letting them attend trial. * Regarding the decision of the primary Judge to refuse the adjournment application on the basis that the court book was served late: + It was a given that the appellant's adjournment request would be granted like it was at the AAT. + The respondent and its legal representatives are responsible for the historic delays in this matter. + In the matter before the AAT, the respondent had to serve the appellant with the court book 5 weeks before the commencement of the trial. The court book was filed 5 days before the commencement of the trial. The magistrate at the AAT granted an adjournment on the basis of this delay. + The respondent served further documents, being certificates of capacity, on the appellant even later than the court book. This disadvantaged the appellant. * Regarding further issues of bias on the part of the primary Judge: + The primary Judge should have taken the cautious approach and recused herself. + The primary Judge revised her oral reasoning in relation to the bias application that was provided to the parties on 30 January 2023 before publishing those reasons. The oral reasoning was certainly different to the revised written reasoning. Judges altering or correcting reasoning after the fact could be perceived as bias in nature. + The appellant was made to feel that he had two opposing parties, the respondent and the primary Judge. + The primary Judge appeared to be granting the respondent with everything and declining everything the appellant requested. + The appellant referred to the guide to judicial conduct. + The appellant was bullied by the primary Judge. * Regarding the appellant's alleged failure to prosecute the matter before the primary Judge: + The appellant's default of walking out of the court room following an order of the primary Judge that the substantive hearing proceed was a flow on effect of the respondent's breach of court order by failing to serve the court book on time. + The appellant would not have reached the point of trial scheduling if he had failed to prosecute his case with anything but due diligence. + The appellant notified the court that he would not be attending the remaining 4 days of hearing after walking out on 30 January 2023. + The appellant distinguished between a wish to discontinue his case and an inability to continue his case and stated that his situation on 30 January was the later of the two. + The appellant did what he felt was his only option to try to get a fair trial by walking out of the courtroom. + The appellant is unable to function when he is depressed. On this basis the appellant had no real chance of responding to the orders of the primary Judge seeking submissions on the dismissal application. Despite this the appellant sent an official complaint to the Victorian Attorney General, the Chief Judge and later, the Attorney General of Australia about the behaviour of the primary Judge. + The appellant had no choice but to concede his case for health reasons and would have said anything to go home and rest to try to ease his pain and prevent any further damage to his spine. + The appellant did not specifically tell the primary Judge that he had not taken enough pain killers and that by the end of the lunch adjournment it was simply too much and that he was in too much pain to concentrate. However, he did tell the primary Judge that he was in pain. * Regarding the dismissal decision: + The appellant should have been given more than one opportunity to prosecute his case per the High Court decision of Aon Risk Services Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [98] (Aon Risk Services) which refers to "opportunities", plural, which must be limited to account for delay and costs. + The respondent referred to s 192(4) Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) which empowers the court to dismiss a party's claim where they have failed to comply with a direction of the court or a Judge. It seems unfair that the respondent's default in not filing the court book on time was not punished but the appellant's default of walking out and not filing submissions was punished by dismissal, especially when the appellant has not defaulted previously. + Per r 13.05 FCFCOA Rules, where an applicant is in default, the court may order, amongst other things, that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant. The proceeding quite clearly should have been stayed. The appellant is a self-represented litigant and had never heard of the term 'stayed' in the legal sense. The phrase "amongst other things" suggests that the primary Judge had multiple options available to her other than termination of the matter. + The primary Judge only considered the consequences for the respondent when exercising her discretion to dismiss the proceedings. + Pursuant to r 13.05(1) the discretion must be exercised judicially and in accordance with the requirements of justice. The Court has an obligation to investigate and determine a claim for judicial relief. The primary Judge failed in her duty to conduct any such investigation into the appellant's situation in relation to his physical and mental health issues. * As both the primary Judge and the respondent's counsel were barristers at "Vic Bar" for many years, it is highly probable that they may have crossed paths and possibly be known to each other or even friends. The primary Judge had a duty to declare if there was a friendship between herself and the Counsel for the respondent, but no such declaration was made. * Just because a corrective email is sent does not guarantee that it will be seen or read. It is good practice to request a confirmation response. This did not occur in relation to the email sent by the primary Judge's associate containing a typographical error and the correction subsequently sent. * The rule that an appeal cannot be heard on a bare refusal to adjourn can be exploited by legal practitioners and needs to change to promote trust in the justice system. * The only reason that the respondent admitted to taking adverse action was because the appellant subpoenaed the payslips of alleged security guards placed at the private residences of managers of the respondent which would expose that such security guard placements were a fabricated story to illegally terminate the appellant. * The respondent fabricated evidence in relation to the events relevant to the substantive proceedings including in relation to the workplace bullying investigation at the respondent company and an alleged police report. * It appears that dialogue was missing from the transcript of the case management hearing of 19 January 2023. Submissions of the respondent 1. In summary the respondent submitted as follows: * Mr Walker was concerned that, as a litigant in person, he was not properly assisted by the primary Judge. The principal authorities regarding the court's duty to ensure a litigant in person is not disadvantaged by their exercise of the right to be self-represented are summarised in Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; 280 FCR 479 (Flightdeck). The required assistance includes: (a) Ensuring the litigant is informed of procedures which, if invoked, may prove to be advantageous … For example, failing to inform a litigant-in-person of their ability to apply for an adjournment may amount to a denial of procedural fairness; and (b) Ensuring the litigant has not, because of a lack of legal skill, failed to claim rights or put forward arguments. * Neither the recusal decision nor the adjournment decision was appellable as there is no right to appeal a bare decision by a Judge not to recuse themselves, and there is no right to appeal a judgment not to adjourn a hearing. * The 7 February 2023 email did not in all the circumstances actuate a duty for the primary Judge to provide information or assistance to the appellant. * An application for leave to appeal and for a stay pending any decision on an appeal against the bias and adjournment application decisions would have no logical connection with the outcome of the summary dismissal application. * There is not and can be no duty on a court to engage in correspondence or to reconvene on every occasion a party to litigation communicates with a Judge's Chambers or makes assertions that show a misapprehension of legal processes and procedures. * The decision of the primary Judge not to recuse herself was not attended by error. Her Honour's conduct of the case management hearing did not give rise to any basis on which the Johnson v Johnson (2000) 201 CLR 488 hypothetical reasonable observer would apprehend bias. Her Honour's decision not to recuse herself was properly made. * The decision of the primary Judge to not adjourn the hearing was a reasonable exercise of her Honour's discretion in circumstances where: + the hearing had been listed since October 2022; + the parties had convened for a case management hearing and the appellant had not indicated an inability to proceed; + the respondent and the court had allocated resources for the hearing; and + the primary Judge indicated that the appellant would be accommodated to the extent practicable and reasonable if he required more time to prepare for witnesses. * The decision to dismiss the proceedings pursuant to r 13.05(1)(a) of the FCFCOA Rules made on 3 March 2023 and orders to that effect were properly made. There was no error in the sense in House v The King (1936) 55 CLR 499 (House v King). The reasons of the primary Judge as addressed before the court: + applied correct principles; + were not affected by extraneous or irrelevant matters; + did not mistake the facts; + did not fail to take into account some material consideration; and + were not unreasonable or plainly unjust. 1. In respect of the appellant's further written submissions, the respondent orally submitted: * The bulk of the documents in the appeal book were filed documents. Many were opposed by the respondent for relevance and that opposition was maintained. * What is relevant to the appeal proceedings is whether there was bias on the part of the primary Judge or a reasonable apprehension of bias. Also relevant is whether there was actual bias, failure to provide procedural fairness in relation to the adjournment, and other issues. * Under s 342 of the Fair Work Act the dismissal of an employee by an employer is an adverse action. It is not the admission of a crime or any wrongdoing. * There was no communication between the Counsel for the respondent and the Court in the 20 minutes in which the audio link was frozen on the case management hearing of 19 January 2023. Delays of that nature due to technical difficulties are not out of the ordinary in the conduct of Court. The primary Judge addressed the issue of the delay at the time and stated that the link was frozen for 20 minutes and nothing occurred during that time. This should be adequate factual response to the appellant's concerns. There is nothing in the transcript of the facts that gives rise to any reasonable apprehension of any untoward communication having occurred during the 20-minute delay. * There is nothing extraordinary in a concern about the ability to get through a large number of witnesses within the set hearing time. * The respondent provided a trial plan as it was requested by the court. The appellant did not agree to the trial plan and the court was informed of this fact. The appellant has conceded that he did not read the trial plan as proposed by the respondent. * A word count of comments of a party and the Judge at a hearing is not determinative of fairness or failure to hear a party. A fair reading of the transcript of the case management hearing of 19 January 2023 shows that the appellant spoke, was asked questions, and was given the opportunity to express his concerns and raise issues. * Mr Walker has not satisfactorily explained how a reasonable apprehension of bias on the part of the primary Judge can be identified from her Honour's reasons for refusing to recuse herself or grant an adjournment. The fact that the appellant was unhappy or dissatisfied with those decisions does not mean that the primary Judge was biased against him. * The "Further Extensions of Statutory Provisions and Pleadings Combined" document was not relevant as it referred to many issues and pieces of legislation which were not matters in the proceeding nor were they enlivened by the amended statement of claim of the appellant, and thus were not matters before the primary Judge. The decision to exclude that document as irrelevant and likely to be productive of a waste of time was appropriate, and not indicative of any actual or apprehended bias. * The 7 February email may have informed the primary Judge that there was a complaint against her, but that does not give rise to a reasonable apprehension of bias, nor does the application for recusal. * The ordinary understanding of the reasonable layman for the purpose of the test in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (200) 205 CLR 337 at [7] (Ebner) must include an understanding that judges have a certain level of robustness and they are not to be taken as becoming biased or prejudiced against a party merely because there is some level of dispute between the Judge and that party. * Counsel often appears before a judiciary where there is a relationship of friendship, but it must be understood that that would not preclude a judge from hearing a matter and would not raise a reasonable lay person's apprehension of bias. * Many judges in Victoria, both at the federal and state level, were barristers before being appointed to the bench and necessarily would have relationships with members of the bar. There would not be any reasonable apprehension of bias simply because of that fact. * Counsel for a party is an officer of the court and is representing, but not of, a party. Counsel has a certain independence of mind from the position of the party they represent. Therefore any relationship between the Judge and the counsel for a party could not reasonably be regarded as a basis for an apprehension of bias. * The 7 February email does not go beyond an assertion that a complaint has been made. It does not in any sense enliven an obligation on the part of the court to give any information to the appellant. * There is no right of appeal against a bare decision not to recuse: Stone v Moore [2015] SASC 46; 122 SASR 54; Bezer v Bassan [2017] NSWCA 333; Barakat v Goritsas [2012] NSWCA 8 as a response to Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 244 CLR 427. This right to seek leave to appeal from an interlocutory decision being a refusal to recuse is distinguished from any other interlocutory decision. * Section 24(1AA) of the Federal Court Act specifically excludes a decision to adjourn or not to adjourn from the appellate jurisdiction of the Federal Court. * There were no appeal rights to be contemplated so the only question is whether the order of the court made 1 February 2023 was indeed an order of the court and the 7 February email does not give rise to a need for the primary Judge to address that question. * The appellant was not denied procedural fairness. He was heard at case management hearing of 19 January 2023 and on the interlocutory applications on 30 January 2023. There is nothing that gives rise to any reason to think that the appellant was excluded or precluded from being heard or from addressing the court on the issues that were of concern to him. * The primary Judge attempted to engage with the appellant after the adjournment application was refused, it is not a matter of the Court refusing to hear the appellant, it was the appellant who rejected his opportunity to be heard and was not heard because he walked out of the courtroom. There is no basis upon which a reasonable lay person would apprehend bias. * The appellant complained of unfairness as he did not know when his subpoenaed witnesses would appear, but by virtue of his failure to provide an outline to the Court of what the witnesses were to say, per an order of the primary Judge, those witnesses were not to appear. * The dismissal decision was made on the basis of the respondent's submissions. The appellant did not make any submissions. This does not suggest bias or any denial of procedural fairness. Consideration 1. The primary question before the Court in this matter is whether, in all of the circumstances, the appellant was denied procedural fairness by the primary Judge in making the dismissal decision pursuant to r 13.05(1)(a) of the FCFCOA Rules. 2. Multiple other issues have been raised by the parties regarding the conduct of proceedings before the primary Judge including both the recusal decision and the adjournment decision. Those decisions are not the subject of the appeal before the Court. Issues of Mr Walker's health, audio-technical issues at the 19 January 2023 case management hearing, the calling of witnesses for trial, and other issues of alleged bias on the part of the primary Judge were also raised. Although these issues provide context to the proceedings they are largely outside the scope of the appeal before me. 3. In her orders of 3 March 2023 the primary Judge summarily dismissed the proceeding pursuant to r 13.05(1)(a) of the FCFCOA Rules. Materially r 13.05 provides: Orders on default (1) If an applicant is in default, the Court may order that: (a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or (b) a step in the proceeding be taken within the time limited in the order; or (c) if the applicant does not take a step in the time mentioned in paragraph (b)--the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant. … (6) The Court may make an order of the kind mentioned in subrule (1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court thinks just. 1. Rule 13.04(1) of the FCFCOA Rules defines when an applicant is in default, namely: When a party is in default (1) For the purposes of rule 13.05, an applicant is in default if the applicant fails to: (a) comply with an order of the Court in the proceeding; or (b) file and serve a document required under these Rules; or (c) produce a document as required by Part 14; or (d) do any act required to be done by these Rules; or (e) prosecute the proceeding with due diligence. 1. It is well settled that the power of a Court to dismiss proceedings for want of prosecution involves an exercise of the Court's discretion. This is plain from the terms of rr 13.04(1) and 13.01(5) of the FCFCOA Rules, as well as such authorities as Stollznow v Calvert [1980] 2 NSWLR 749 at 751, Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45], Cooper v Hopgood & Ganim [1998] QCA 114; [1999] 2 Qd R 113 at 124, and Kuperman v Permanent Trustee Australia Limited [2023] QCA 54 at [25]. 2. It is also clear that, in circumstances where the Court forms the view that the moving party has abandoned the proceedings, it is open to the Court, in the exercise of its discretion, to find that there has been a want of prosecution, and to dismiss the proceedings for that reason. This approach was, for example, taken by the Court of Appeal of Victoria in Re Velissaris [2014] VSCA 153. It was also the approach Leeming JA in Collier v State of New South Wales (No 2) [2014] NSWCA 461 where, as his Honour in that case observed: 3. There are two reasons why I will dismiss the balance of the notice of motion. First, despite what I regarded as her unequivocal abandonment of those paragraphs during the course of the hearing on 8 December 2014, I permitted (perhaps over generously) a further opportunity for Mrs Collier to be heard. She has not availed herself of that opportunity. In the circumstances of this case, it is appropriate that she be taken to have abandoned any continued reliance upon the balance of her motion. I add, for completeness, that there have been communications between Mrs Collier and the Court concerning an application to prevent any further hearing by me of her motion, in part in reliance upon s 78B of the Judiciary Act 1903 (Cth). However, I am not aware of any reasonable basis for such application, nor any orders preventing the resolution of the motion. 1. As was also explained specifically in such cases as Stollznow v Calvert at 751, and more recently and more generally by the Full Court in Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45 at [30], the exercise of discretion by a Judge at first instance is examinable on appeal in accordance with such authority as House v The King, such that the decision at first instance will be subject to interference if error appears. The Appellant's Failure to Prosecute his Matter before the primary Judge 1. The appellant has made substantial submissions that his abandonment of the 30 January hearing, failure to provide submissions in relation to the further hearing or disposal of his application, and email of 7 February 2023, did not constitute a failure to prosecute his matter. In support of those submissions the appellant referred to his claimed physical and mental health issues, and that he did not have the requisite intention to cease prosecuting his matter. 2. These factors were considered by the primary Judge in her reasons at [33]. Further, such claims must be considered in light of the conduct of Mr Walker at the hearing before her Honour, and his statements to her Honour on 30 January 2023 after her Honour refused to adjourn the trial. Mr Walker's clear statements included "I can't do it", "I conceded", "they win", "I will wave the white flag" and "I'm done". On their ordinary meaning, the statements of Mr Walker all indicated that he did not intend to proceed with his matter notwithstanding the encouragement by the primary Judge that he remain at the hearing. 3. Mr Walker has put to me that his situation was that of an inability to continue his case, rather than a wish to discontinue. I note that in amongst comments to the effect that he "conceded" as described above, Mr Walker also said to the primary Judge: MR WALKER: I'm sorry, but I can't. I physically can't prepare it. I've got mental health problems. I see – they haven't – they've lied and blocked any – and I can prove it as it's there in your evidence that they've blocked supporting my mental health, I've had to pay for it all myself. I'm trying to prepare this by myself and it's just impossible, so they win. I concede. Sorry. HER HONOUR: No. You don't need to apologise. MR WALKER: I can't do it. I can't do it. I physically can't do it. I mentally can't do it either. (transcript FCFCOA 30 January 2023 pp 12-14) These further comments simply reiterated Mr Walker's abandonment of the proceeding. There was no suggestion from these comments that he sought a stay of the hearing or any other course than termination of the hearing at that point. In any event, the primary Judge weighed the mental and physical challenges allegedly faced by Mr Walker, against the principles of the Court as set out in s 190 of the FCFCOA Act, particularly issues of efficiency and timeliness: see dismissal decision at [35]. 1. Despite the orders of the primary Judge of 1 February 2023 providing Mr Walker with an opportunity to rebut his apparent abandonment of the proceedings, oppose the respondent's interlocutory application for summary dismissal and provide any submissions as to the proper disposition of proceedings, Mr Walker did not do so. Rather, it appears that he sent two emails, one to the Victorian Registry of the Federal Court on 2 February 2023, and one to the Chambers of the primary Judge on 7 February 2023. In respect of these emails however: * Notwithstanding that there is no evidence before the Court to suggest that the primary Judge had seen the 2 February 2023 email sent to the Victorian Registry of the Federal Court, that email does not constitute a response or opposition to the interlocutory application for summary dismissal of the proceedings. * I am not persuaded that Mr Walker's purported "suspension" of the proceedings in the email of 7 February 2023 – because of his view that the primary Judge was biased against him – constituted effective opposition to the summary dismissal of the proceedings. Plainly it was not within Mr Walker's power to have the proceedings "suspended" at his whim. 1. Although Mr Walker is a litigant in person, he has shown an understanding through the course of proceedings before the primary Judge that he understood that applications and documents must be put properly before the Court. Indeed, Mr Walker made submissions before this Court that various applications made to the primary Judge by the respondent should have been properly filed and served. There was therefore no reason for the primary Judge to have assumed that Mr Walker was unaware that any submissions pursuant to the 1 February 2023 orders should be properly filed and served. 2. In my view, given the comments of Mr Walker to the primary Judge at the hearing of 30 January 2023, his removal of himself from the Court room, and his failure to provide further submissions in response to the orders of the primary Judge, it was clearly open to her Honour to find that Mr Walker had abandoned the proceeding on 30 January 2023 such that he had ceased to prosecute the proceedings with due diligence within the meaning of r 13.04(1)(e) of the FCFCOA Rules. Alleged denial of procedural fairness 1. Mr Walker claimed that he was denied procedural fairness by the primary Judge in respect of her Honour's decision to dismiss the primary proceedings. 2. It is uncontroversial that Courts are bound by the rules of natural justice. Unless the proceedings are ex parte, the court is obliged to hear what the parties or their representatives wish to submit about anything relevant to the making of a decision (see for example International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49 at [150]; South Australia v Totani [2010] HCA 39 at [262]). Further, as recently observed by Kiefel CJ and Gageler J in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 at [26] (applying principles identified in Ebner): …impartiality is an indispensable aspect of the exercise of judicial power [and] "[b]ias, whether actual or apprehended, connotes the absence of impartiality" 1. The breaches of procedural fairness claimed by the appellant in the notice of appeal can be summarised as follows: 2. The respondent admitted that its conduct, in dismissing the appellant, constituted adverse action; 3. Whether it was appropriate for the primary proceeding to be summarily dismissed was determined on the papers; 4. The appellant was a litigant in person and the primary Judge failed in her duty to inform the appellant of his rights and of relevant court processes and procedures. 5. It is helpful to examine each of these claims in turn. The respondent admitted to taking adverse action 1. In his submissions Mr Walker said, inter alia: The respondent admitted taking adverse action against the applicant which it had never admitted at any point prior. Dismissing the applicant's matter therefore is letting a large corporation break the law and that alone has the potential to severely damage the reputation of the courts and the Justice System. p 4 Particulars (including Further and Better Particulars) filed by Mr Walker on 15 November 2023 1. Mr Walker also made a submission to that effect at the hearing before the primary Judge on 30 January 2023 (transcript pp 2-6). 2. "Adverse action" is defined in s 342(1)(a) of the Fair Work Act to include the following: Adverse action is taken by an employer against an employee if the employer dismisses the employee. 1. Section 340 of the Fair Work Act further provides: (1) A person must not take adverse action against another person: (a) because the other person: (i) has a workplace right; or (ii) has, or has not, exercised a workplace right; or (iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or (b) to prevent the exercise of a workplace right by the other person. 1. Even if the respondent accepted that it had dismissed Mr Walker, and thus engaged in adverse action against him for the purposes of the Fair Work Act, that does not in itself constitute breach of the Fair Work Act. The reason for the adverse action must be in contravention of workplace rights of the relevant person. The respondent did not make any admission to that effect. 2. As such I accept the submission of the respondent that a statement by the respondent that they had taken an adverse action against the appellant does not constitute the admission of a crime or any wrongdoing on the part of the respondent. The primary proceeding was summarily dismissed "on the papers" 1. In the particulars to his notice of appeal Mr Walker complained that the summary dismissal application of the respondent was "heard on the papers". 2. In the present case Mr Walker had walked out of the proceedings and indicated that he no longer sought to press his application in the FCFCOA. The respondent, at that time, made an oral application for dismissal of Mr Walker's application. The respondent further provided written submissions which clarified that the matter should be dismissed or, in the alternative, struck out on the basis of want of prosecution and failure to comply with a Court order. 3. The primary Judge could, quite properly, have decided the case ex tempore on 30 January 2023. Rule 13.06(1)(c) of the FCFCOA Rules provides: 13.06 Default of appearance of a party (1) If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do any of the following: ... (c) if the absent party is an applicant – dismiss the application; ... 1. I also note r 13.06(2) which provides: (2) If a party to a proceeding is absent from a hearing, the Court or a Registrar may also make an order of the kind mentioned in subrule 13.05(1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court or the Registrar thinks just. 1. In the present case after Mr Walker had departed the Court room on 30 January 2023 and the respondent orally applied for summary dismissal, the primary Judge made case management orders for the filing of submissions referable to the proper disposition of the proceedings. In my view, it was within her Honour's power to do so, both pursuant to r 13.06(2) of the FCFCOA Rules and s 190 of the FCFCOA Act. Section 190 in particular reads: Overarching purpose of civil practice and procedure provisions (1) The overarching purpose of the civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), is to facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible. (2) Without limiting subsection (1), the overarching purpose includes the following objectives: (a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2); (b) the efficient use of the judicial and administrative resources available for the purposes of the Court; (c) the efficient disposal of the Court's overall caseload; (d) the disposal of all proceedings in a timely manner; (e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. (3) The civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose. (4) The civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), are the following, so far as they apply in relation to civil proceedings: (a) the Rules of Court; (b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2). 1. I not only consider that her Honour was empowered to make case management orders for the parties to file submissions referable to disposition of the proceedings, I consider that her Honour's action accorded procedural fairness to Mr Walker such as to give him an opportunity to both oppose an order for summary dismissal and propose alternative orders for disposition of the case. 2. On 30 January 2023 the primary Judge was faced with a substantive proceeding which Mr Walker had appeared to abandon, and 4 remaining days of Court time lost when other matters could have been heard. It was not incumbent on the primary Judge to relist the matter at some future date for the convenience of Mr Walker once he had abandoned the hearing, however it was reasonable for her Honour to allow Mr Walker the chance to advance a position in respect of the future conduct of the proceedings. Her Honour plainly was required to, and did, balance the interests of Mr Walker, with the interests of the respondent and the interests of justice as a whole. As Gummow, Hayne, Crennan, Kiefel and Bell JJ explained in Aon Risk Services: 98. … what is a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. 1. The opportunity provided to Mr Walker by the primary Judge to seek to be heard in respect of his claims, and have the proceedings maintained in the face of his actions of 30 January 2023, was reasonable and, in my view, fair. That he did not take advantage of that opportunity was not due to any absence of procedural fairness on the part of the primary Judge. Litigant in Person 1. It is a generally accepted proposition that the Court has a duty to ensure that litigants in person do not suffer any disadvantage from exercising their right to represent themselves in Court: MacPherson v R (1981) 147 CLR 512 at 534; 37 ALR 81 at 98; Flightdeck at [51]. 2. The Full Court of the Federal Court of Australia in Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 79 summarised the position of the Court in relation to litigants in person as follows: 20 The appellant in this case is a litigant in person, and it is common for Courts to take a lenient view of the rules and the law in aid of such litigants: see for example Zaghloul v Woodside Energy Limited (No 9) [2019] FCA 1718 at [18], Blakeley v National Australia Bank [2018] FCA 796 at [51], BBT16 v Minister for Home Affairs [2018] FCA 1225 at [5]. 21 Nonetheless, as Colvin J went on to explain in Zaghloul at [18], the Court may be lenient in the standard of compliance which it exacts from a litigant in person, provided that leniency does not go so far as to confer an advantage on the person who acts on their own behalf: Nobarani v Mariconte [2018] HCA 36; (2001) 265 CLR 236 at [47], Platcher v Joseph [2004] FCAFC 68 at [104]‑[105]. 1. The Full Court in Flightdeck further noted that: [54] The assistance provided to a litigant-in-person must therefore be limited to that which is necessary to diminish the disadvantage which he or she will ordinarily suffer, and the Court should be wary to avoid placing a litigant-in-person in a position of advantage or privilege over a represented opponent… … [55] In practical terms, the Court may find it appropriate to provide the following kinds of assistance to a litigant-in-person: (a) Ensuring the litigant has sufficient information about the practice and procedure of the Court to make effective choices in the conduct of the matter: Hamod at [311]. For example, failing to explain the difference between formal sworn testimony and statements made from the bar table, and the significance of failing to file an affidavit, to enable a litigant-in-person to choose whether or not to give oral evidence, may amount to a denial of procedural fairness: SZRUR at [39]. Additionally, failing to explain the risks in not leading evidence where adverse inferences might be drawn may also constitute a denial of procedural fairness: Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq) (2014) 46 VR 283; 313 ALR 383; [2014] VSCA 193. (b) Ensuring the litigant is informed of procedures which, if invoked, may prove to be advantageous: MacPherson at CLR 534; ALR 98. For example, failing to inform a litigant-in-person of their ability to apply for an adjournment may amount to a denial of procedural fairness: AMF15 at [47]. (c) Ensuring the litigant has not, because of a lack of legal skill, failed to claim rights or put forward arguments: Rajski. [56] The duty of the Court does not extend to providing judicial advice, counselling a litigant on how to exercise their rights, or conducting the case on their behalf: Hamod, [312]; Bhagwanani v Martin (1999) 204 LSJS 449; [1999] SASC 406 at [23]; Clark v New South Wales (No 2) [2006] NSWSC 914 at [13]. Nor does the duty of the Court require it to view a litigant-in-person's case with a favourable eye. As stated by the High Court in Northern Territory v Sangare (2019) 265 CLR 164; 372 ALR 117; 60 Fam LR 71; [2019] HCA 25 at [27], albeit in the context of a determination on costs, "unmeritorious litigation is no less unmeritorious because it is pursued by a person who is … a litigant-in-person". [57] It seems to be well accepted that the extent of the Court's obligation to assist an unrepresented litigant is factually idiosyncratic and, significantly, depends upon "the litigant, the nature of the case, and the litigant's intelligence and understanding of the case": Abram v Bank of New Zealand (1996) ATPR 41-507 at 42,347. 1. In the particulars to his notice of appeal, Mr Walker alleged that the primary Judge failed to provide him, as a litigant in person, with procedural fairness so as to enable him to make an informed choice about his legal rights in the following ways. Email of 7 February 2023 – Primary Judge's continuing power to hear and determine the summary dismissal application 1. Mr Walker submitted that he was denied procedural fairness because of the email sent by him to the Chambers of the primary Judge on 7 February and because of the primary Judge's failure to advise him that: * his case was not "temporarily suspended from any further hearings or orders" and * her Honour otherwise had the power to hear and determine the summary dismissal application. 1. As explained by the Full Court in Flightdeck at [56], the duty of the Court when one party is self-represented does not extend to providing advice, counselling that litigant on how to exercise their rights, or conducting the case on their behalf. In the present case it is clear that no duty was enlivened for the primary Judge or her Chambers or the FCFCOA to contact Mr Walker to advise him of any potential misapprehension by him of the state of affairs following his abandonment of the hearing and the subsequent case management orders made by the primary Judge. 2. Secondly, the email did not invite the primary Judge or her Chambers to answer any question in relation to the status of Mr Walker's proceedings in the FCFCOA after 30 January 2023, but rather could be characterised as a direction by him in regard to the status of that litigation. The email went so far as to state that "no further correspondence between the Applicant and Judge Symons Associate will be required." It is impossible to understand how any further communications from the Court to Mr Walker would have been received by him in circumstances where he plainly indicated, at the very least, discouragement of such communication. I am not persuaded that it was incumbent on the primary Judge in the interests of justice to endeavour to overcome Mr Walker's rejection of the prospect of further communications from the Court. 3. In any event, the orders of the Court on 1 February 2023 were clear in their meaning and intention. Mr Walker's email to the Victorian Registry on 2 February 2023 indicated that he understood that there was an application before the Court that his matter be dismissed. The Court was not duty bound to – effectively – advise Mr Walker of the obvious facts that: * the matter remained on foot, and * the power to hear and determine the summary dismissal application remained with her Honour. 1. Thirdly, as I noted earlier, Mr Walker is a relatively experienced litigant who plainly understood that applications and documents must be put properly before the Court. There was no reason for the primary Judge to have assumed that Mr Walker was unaware that any application relating to the conduct of proceedings, including an application for a stay of proceedings or to "temporarily suspend" proceedings, should be filed and served in accordance with the FCFCOA Rules. 2. No denial of procedural fairness arose in respect of the email of 7 February 2023. Appeal Adjournment Decision 1. On 30 January 2023, the primary Judge refused Mr Walker's application for an adjournment. Mr Walker submitted that he was denied procedural fairness on the basis that the primary Judge failed to advise him that he could seek to appeal that decision. 2. Pursuant to s 24(1)(d) of the Federal Court Act, the Federal Court has jurisdiction to hear appeals from judgments of the FCFCOA. Pursuant to s 24(1AA) an appeal must not be brought from a judgment of the FCFCOA if the judgment is: (a) a determination of an application of the kind mentioned in subsection 20(3); or (b) a decision to do, or not to do, any of the following: (i) join or remove a party; (ii) adjourn or expedite a hearing; (iii) vacate a hearing date. (emphasis added) 1. It is clear from the legislation that the adjournment decision of the primary Judge, namely her Honour's decision not to adjourn the hearing on 30 January 2023, was not an appellable decision. No duty to inform Mr Walker that he could appeal that decision could arise in any circumstances. It follows that no issue of procedural fairness arises in this respect. Appeal Recusal Decision 1. The primary Judge on 30 January 2023 refused Mr Walker's application that her Honour should recuse herself for both actual and apprehended bias. In claiming denial of procedural fairness, Mr Walker complains that the primary Judge ought to have informed him of his right to appeal the recusal decision, and the manner of progressing such an appeal. 2. The respondent submitted that there was no right of appeal in any event by Mr Walker of the recusal decision, and in support of that proposition relied on such cases as Stone v Moore; Bezer v Bassan; Barakat v Goritsas. 3. In light of such cases as Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 (Livesey) and QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15, I am not persuaded that there would have been no right of appeal by Mr Walker against the recusal decision. However, I am also mindful of the principle that it is the duty of a judge to hear a matter, notwithstanding a party's objection, if no proper basis has been established for the judge to disqualify herself or himself: Frigger v Trenfield (No 14) [2023] FCA 307 at [47]; Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission [2022] FCAFC 161 at [32]; Hot Wok Food Makers Pty Ltd v United Workers Union (No 3) [2024] FCAFC 51 at [76]. As the High Court observed in Livesey at 294 [8]: …it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of prejudgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court… 1. Her Honour gave detailed reasons for declining to recuse herself in the recusal decision, applying relevant legal principles. Although Mr Walker complained of alleged bias on the part of her Honour, he has not appealed the recusal decision, and that decision is not on appeal before me now. 2. Looking at the appeal actually before me, plainly it was not incumbent on the primary Judge to advise him to appeal the recusal decision, or how to go about doing so. 3. No issue of procedural fairness arises in this respect. Stay Application 1. Mr Walker submitted that pursuant to r 13.05 FCFCOA Rules, where an applicant is in default, the Court has the power to stay proceedings in addition to having the power to dismiss an application. Mr Walker submitted that the primary Judge should have stayed proceedings or examined other options available to the Court other than dismissing the matter. 2. The orders of 1 February 2023 provided that Mr Walker was to have the opportunity to file submissions in response to the previously filed submissions of the respondent concerning the disposition of the substantive proceedings. As I have already observed, it was open to him at that stage to file submissions suggesting an alternative cause of action to the respondent's application for dismissal. 3. Mr Walker did not file any submissions to that effect. 4. As matters stood, her Honour was invited to exercise her discretion to summarily dismiss the proceedings, for want of prosecution by Mr Walker. In the absence of an application, or even simply submissions, by Mr Walker seeking a stay of the proceedings or alternative means of either progressing or disposing of the matter, there was no basis on which the primary Judge could realistically have formed the view that a stay was an appropriate order. This was particularly the case given that Mr Walker had indicated, unambiguously on 30 January 2023, that he was abandoning the proceedings. I am not persuaded that an informal email by Mr Walker directing "suspension" of the proceedings constituted a meaningful application for a stay for her Honour to consider. 5. As noted in Flightdeck it is not the responsibility of a Judge to run a litigant's case for them. For the same reason, the primary Judge had no duty to inform Mr Walker that he could file an application for a stay, or to assume that Mr Walker was incapable of filing an application from which he could benefit. Conclusion 1. I am satisfied that Mr Walker was not denied procedural fairness by the primary Judge in the conduct of proceedings relevantly before her Honour and the dismissal of Mr Walker's originating application. The appeal should be dismissed. I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier. Associate: Dated: 19 September 2024