Ruling sees no reasonable apprehension of bias due to decision-maker’s work history
In proceedings where an employer alleged breaches of confidence, contract, and s 183 of the Corporations Act 2001 (Cth), Justice Michael Lundberg of Western Australia’s Supreme Court dismissed a former employee’s recusal application upon finding no reasonable apprehension of bias.
In Tronox Management Pty Ltd -v- Cokic [2026] WASC 63, the plaintiff allegedly employed the defendant between November 2020 and August 2024 and terminated his employment on approximately 15 August 2024.
Seeking injunctive relief, damages, and compensation for alleged wrongdoing, the plaintiff also asserted claims for conversion and injurious falsehood against the defendant. The plaintiff contended that the defendant:
The defendant applied for the recusal of Justice Lundberg based on a reasonable apprehension of bias. The defendant alleged that Mallesons, a law firm:
The defendant also raised Lundberg’s previous employment with the Crown Solicitor's Office. The defendant drew a connection between that office’s representatives, the Royal Commission into Commercial Activities of Government and Other Matters, and the plaintiff’s business.
Justice Michael Lundberg of the Supreme Court of Western Australia acknowledged that the plaintiff’s general counsel, previously a Mallesons employee, had affirmed affidavits in this proceeding.
Lundberg accepted that the court might later assess general counsel’s reliability and credibility as a potential witness. Lundberg added that his own prior professional association might affect his overall consideration of the plaintiff’s case and the defendant’s responses.
According to Lundberg, to show a reasonable apprehension of bias, the defendant should identify:
Declining the recusal, Lundberg determined that the matters raised on the face of the present proceeding lacked any apparent connection with the Crown Solicitor’s Office, with the law firm Mallesons, or with himself.
Lundberg saw multiple degrees of separation between the matters asserted in the recusal application and any matters with which he had a prior association or connection.
Lundberg found the concerns – regarding his prior association with the Crown Solicitor's Office, with Mallesons in general, or with the specific energy and resources partner – speculative and without substance.
Lundberg explained that a fair-minded lay observer would not reasonably apprehend that he might not be impartial when resolving these proceedings. Lundberg described the common prior employment between himself and the plaintiff’s general counsel as a slender connection.
Lundberg concluded that the defendant failed to connect his prior association with the plaintiff’s general counsel and the feared deviation from a determination of the case on its merits. Lundberg gave the following reasons for this conclusion.
First, Lundberg pointed out that Mallesons was a large law firm that had employed hundreds or thousands of lawyers during his employment and partnership period. Lundberg noted that numerous judicial officers previously worked as partners at large firms.
Second, unlike Lundberg, who had worked wholly within Mallesons’ dispute resolution practice, the plaintiff’s general counsel had not belonged to that practice group.
Third, Lundberg noted that the plaintiff’s general counsel was neither a Mallesons partner nor an employed solicitor under his supervision at any point.
Fourth, Lundberg pointed out that he had no professional association with the plaintiff’s general counsel for at least a decade, as well as no connection with her with respect to her work for the plaintiff.
