Underlying matter claims Fair Work Act contraventions, including 'sham contracting'
A docket judge of Australia’s Federal Court has recused himself based on a reasonable apprehension of bias upon finding that his previous professional association with respondent Uber Australia Pty Ltd might impact his hearing and determination of the claims.
In Seeto v Uber Australia Pty Ltd, [2025] FCA 1032, the applicant brought proceedings against Uber, his purported employer. He alleged adverse action, “sham contracting,” and other contraventions of the Fair Work Act 2009 (Cth).
As the docket judge, Justice Yaseen Shariff listed the matter for a case management hearing. Shariff learned shortly afterward that Uber’s solicitor on record was an Ashurst lawyer who had instructed him to appear for Uber in prior proceedings back when he was a New South Wales barrister.
Before the first case management hearing, Shariff provided a communication raising this issue with the parties, considering whether he should recuse himself from hearing and determining the case, and noting the circumstances of his past professional association with Uber.
Specifically, Shariff said he had acted as a barrister for Uber and its related entities before his judicial appointment. Shariff added that the Ashurst lawyer serving as Uber’s solicitor on record had instructed him in connection with these matters.
Based on a reasonable apprehension of bias, Justice Shariff referred the proceedings to the national operations registrar for reallocation to a fellow judge of the Federal Court of Australia as soon as practicable.
To make this order, Shariff applied the test in Ebner v Official Trustee in Bankruptcy, [2000] HCA 63; 205 CLR 337. He discussed the applicable steps to assess whether there was a reasonable apprehension of bias.
First, Shariff determined that his prior appearances for and advice to Uber and its related entities as a barrister might lead him to hear and determine the applicant’s claims on a basis other than its legal and factual merits.
Second, Shariff saw a logical connection between his past professional association with Uber and matters critical to the present proceedings. He pointed out that a critical issue in the present matter was whether the applicant was an Uber employee.
He noted that the status of individuals subscribing to use Uber’s application platforms for ride share and meal delivery – specifically, the issue of whether these persons were employees of Uber or its related entities – was a critical issue in his prior professional association with Uber and other entities.
Third, Shariff accepted that:
However, Shariff found a reasonable apprehension of bias. He explained that a reasonable and fair-minded lay observer might perceive him as unable to bring an independent and impartial mind to determine the present matter.
Lastly, Shariff noted that the parties did not object to his recusal based on a reasonable apprehension of bias. However, the parties had prepared consent orders for the future progress of this matter and had agreed to his issuance of those case management orders prior to recusal.
Thus, Shariff made the requested case management orders in line with the parties’ consent orders.
