Reasonable apprehension of bias renders it inappropriate to hear matter further, judge says
Justice Elizabeth Bennett recused herself upon finding it inappropriate for her to hear a recent proceeding before the Federal Court and finding it appropriate to refer the matter to another judge’s docket, given all the circumstances in the case.
In the underlying case of Victorian Legal Services Board v Kuksal, in the matter of Kuksal, [2025] FCA 508, the applicants applied for sequestration orders, which the respondents opposed. The present proceeding arose after Jared Heath, solicitor for the applicants, emailed all parties and Justice Bennett’s associate.
In the 12 May 2025 email, the lawyer disclosed that he had instructed the judge as counsel in multiple matters unrelated to the present case or any of its parties. He said he had also briefed the judge on behalf of his client in matters unconnected with the present case.
The respondents applied for the judge’s recusal based on a potential apprehension of bias. The respondents cited Justice Bennett’s former professional and personal relationships with the board, with Heath as the board’s solicitor, and with Fiona McLeay as the board’s commissioner and CEO.
The respondents claimed that the nature of the allegations against the applicants and their solicitor would entail Justice Bennett’s assessment of the individuals’ character and that her extensive, friendly interactions with the applicants and their solicitor in the past would necessarily impact this evaluation.
Moreover, the respondents seemed to suggest that an apprehension of bias might arise due to the applicant’s alleged attempts to influence court staff both in the Federal Court and the Supreme Court of Victoria.
The respondents also wanted to apply to call the judge’s former client – when she was serving as a barrister – in either the proceeding proper or as part of a proposed related proceeding. The respondents claimed that this also supported a recusal.
Justice Bennett recused herself from this matter before the Federal Court of Australia. First, the judge noted that the respondents could not call her former client as of right.
However, the judge accepted that this case involved unusual circumstances. Specifically, her professional obligations from when she acted for the former client would prevent her from disclosing all the information relevant to evaluating whether it would be appropriate to adjudicate matters relating to them.
Justice Bennett explained that her inability to reveal all relevant issues potentially pertinent to this case could make a reasonable-minded lay observer concerned about matters possibly interfering with her adjudication of the issues. The judge ruled that the circumstances sufficiently created a reasonable apprehension of bias that would render a recusal appropriate.
The judge emphasised that she should not refuse to hear the proceeding without a good cause because a delay would not serve the interests of justice. However, she noted that she only discovered this issue within days of the matter’s assignment to her docket.
Thus, the judge concluded that a delay would not truly prejudice the parties in this case. Lastly, the judge stressed that she did not adjudicate any factual matters in the proceeding before recusing herself from it.
Justice Bennett acknowledged that she had longstanding and cordial relationships with both Heath and McLeay. While Heath instructed her as a barrister numerous times, the judge noted that this fact alone would not create an apprehension of bias.
The judge also accepted that she represented the board when she worked as a barrister. However, she explained that this fact by itself did not serve as a sound basis for recusal.
The judge noted that the authorities clearly provided that a reasonable-minded lay observer would understand that judges tended to come from the senior ranks of the legal profession and would thus have extensive professional associations relating to this background.
