Application to disqualify judge is dismissed
Questions raised over whether same judge should hear civil penalty proceeding relating to substantially same issues part-heard
The respondents applied for Lee J to disqualify himself from the initial hearing of this class action on the basis that a reasonable apprehension of bias existed. His Honour had previously determined that he would hear the class action as well as the related ASIC civil penalty proceeding (Webb v GetSwift Ltd (No 5)  FCA 1533), which concerns substantially the same underlying allegations. Judgment in each proceeding was to be only based upon the evidence and argument put forward in that individual proceeding. The trial of the class action was scheduled to commence while judgment on liability in the ASIC proceeding was reserved.
The respondents submitted that a reasonable observer would be disinclined to believe that a judge would bring an impartial mind to the class action in these circumstances. The possibility of a reasonable apprehension of prejudgment was said to be heightened where there were a large number of factual issues in contention that were common to both proceedings. Further, the respondents submitted that his Honour would be in possession of “vast and substantial” extraneous information from the ASIC proceeding.
In determining that he would not disqualify himself, his Honour considered that it was not the case that “the relevant observer might reasonably apprehend that the judge might not bring an impartial mind” (at ).
His Honour accepted that there were differences in the expert and lay material in the proceedings. In particular, the applicant in the class action intended to call seven out of the 19 lay witnesses that were called in the ASIC proceeding, and at least four of those lay witnesses would be cross-examined again.
Nonetheless, the respondents were said to have overstated the issue of extraneous information. His Honour considered that it was highly likely that the factual findings would turn on the documentary evidence, which was substantially common in both proceedings. The trial judge is not required to put “core” documentary evidence and known common facts out of mind. None of the ASIC witnesses were cross-examined as to their credit. Therefore, a reasonable observer would not apprehend the possibility of bias having regard to the type of extraneous information in his Honour’s possession. Further, the relevant facts were said to be neither complex nor in substantial dispute, with the contest primarily concerning the application of legal norms.
It was relevant to his Honour’s consideration that no definitive conclusions had been reached in the form of a written judgment.
His Honour acknowledged that the authorities encourage a cautious approach in such applications, but stated that substantial grounds still needed to be established for disqualification to occur.
His Honour granted the respondents leave to appeal the decision, and the class action hearing date was vacated to allow for the possibility of such an appeal. His Honour noted that, in any event, the Victorian COVID-19 lockdown would have created difficulties had the trial proceeded as scheduled. A Notice of Appeal was filed by the respondents on 23 September 2020.
Finally, his Honour considered there was a public policy consideration for refusing the application. It is becoming more common for class actions to arise out of the same facts as civil penalty proceedings instituted by regulators. As such litigation is large and time consuming, efficiencies can be achieved by the same judge presiding over both proceedings where they involve the same underlying facts.
Webb v GetSwift Ltd (No 6)  FCA 1292
Federal Court of Australia, Lee J,
9 September 2020
Applicant’s Solicitors: Phi Finney McDonald;
Respondents’ Solicitors: Quinn Emanuel Urquhart & Sullivan;
Applicants’ Funder: Therium Capital Management Ltd
Andrew WatsonNational Head of Class Actions, Class actions, Melbourne
"I'm an experienced litigator in class actions, particularly for shareholders who have been victims of corporate misconduct."
Ben SladeState Managing Principal, Office Leader, Class actions, Sydney
"I am driven to give a voice to those who would otherwise have to suffer because those who have done them wrong are all too powerful."
Kimi NishimuraPrincipal Lawyer, Class actions, Melbourne
"I'm committed to fighting for the rights of victims of corporate misconduct as well as pursuing compensation on behalf of my clients."
Rebecca GilsenanExecutive Director, Principal Lawyer, Class actions, Sydney
"I have extensive experience in running complex and novel litigation, including class actions in the areas of price fixing, failed investment schemes, product liability and securities."
Miranda NagyPrincipal Lawyer, Class actions, Sydney
"I have a strong conviction that the community should be able to expect our governments and the companies we deal with to comply with the law."
Julian SchimmelPrincipal Lawyer, Class actions, Sydney
"Class actions are a unique legal mechanism that have helped hundreds of thousands of people receive compensation after mistreatment at the hands of powerful companies, and it’s gratifying to help people get access to justice when otherwise it would’ve been difficult for them."
Vavaa MawuliPrincipal, Class actions, Brisbane
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