Ruling describes involvement with JusticeNet SA, leading to reallocation to another judge
Justice Stephen Andrew McDonald has recused himself from further hearing and determining a judicial review application based on a reasonable apprehension of bias and reallocated the proceeding to another judge of Australia’s Federal Court as soon as practicable.
In Snow v Judicial Registrar Birchall, [2025] FCA 885, the applicant lodged two documents for filing on 10 June 2025: an application for leave to appeal against 27 May 2025 court orders and an affidavit supporting the application seeking leave.
The Federal Court registrar refused to accept the documents under r 2.26 of the Federal Court Rules 2011 (Cth) upon finding them abusive of the process of the court, which lacked the jurisdiction to hear and determine the application for leave to appeal.
The applicant requested judicial review of the registrar’s refusal. The court allocated the judicial review proceedings to McDonald as the docket judge.
Before the first case management hearing, the applicant emailed the chambers with a concern that the docket judge’s previous membership in JusticeNet SA’s management committee led to a reasonable apprehension of bias.
JusticeNet SA, a not-for-profit organisation, aimed to ensure that vulnerable and financially disadvantaged people could access justice and obtain pro bono legal representation.
At the first case management hearing on 1 August 2025, Justice McDonald disclosed the following details of his previous involvement with JusticeNet SA.
He was a member of JusticeNet SA’s management committee from 2020–24 and its vice president in December 2023 and 2024. He resigned from the committee in June 2024.
In McDonald’s role in JusticeNet SA, he did not participate in the organisation’s daily operations or refer clients for pro bono representation.
As a management committee member, he sometimes received reports including statistics on client referrals, but generally did not obtain information about specific clients.
McDonald was a practising barrister and South Australian Bar Association member from January 2011 to July 2024 and a JusticeNet SA member for most or all of that period.
Occasionally, he accepted pro bono referrals from JusticeNet SA and received its emails inviting interest in pro bono briefs and containing short case descriptions, but not including information identifying clients.
McDonald said he could not remember knowing the applicant’s name or participating in proceedings and decision-making processes involving him.
He acknowledged that he could have received a JusticeNet SA email – addressed to him individually or as a mailing list member – asking whether he had any interest in providing the applicant pro bono representation. However, he noted that such an email would not have named the applicant.
Justice McDonald of the Federal Court of Australia accepted that he had no known participation in any proceedings regarding the applicant or matters in which he was involved. He noted that the applicant failed to allege actual bias.
However, McDonald accepted that a fair-minded lay observer might reasonably apprehend that a judge helping manage JusticeNet SA at the relevant time might be biased, such that he would determine the judicial review application on bases other than its merits.
He discussed the steps in Charisteas v Charisteas, (2021) 273 CLR 289; [2021] HCA 29, where the High Court addressed the principles pertinent to apprehension of bias.
Regarding the first step, McDonald identified his personal association with JusticeNet SA and involvement in its management committee as possible factors leading him to decide the application on grounds beyond the legal and factual merits.
About the second step, as a person who helped manage JusticeNet SA, McDonald said he would possibly prefer to avoid public scrutiny, criticism, or adverse comments regarding the organisation’s conduct, particularly occurring when he belonged to the management committee.
He explained that this was the possible logical connection between the present matter and his feared departure from determining the application on its merits.
According to McDonald, dismissing the application would prevent the applicant from relying on his proposed appeal ground no. 17 and raising criticisms in his appeal to the Full Court.
