The High Court has refused Ammi Burke’s request that Ms Justice Marguerite Bolger recuse herself from hearing Burke’s judicial review of a Workplace Relations Commission decision. The ruling concerns who will hear the case; it does not determine the underlying challenge to the dismissal of Burke’s unfair dismissal claim.
In a judgment dated 3 May 2023, Ms Justice Bolger rejected four grounds on which Burke alleged objective bias. The substantive judicial review was listed before the judge for 2 May, and the recusal application was heard that day. The judge said she would proceed to hear the substantive application. The parties’ submissions on the recusal application’s costs were deferred until the end of that hearing.
Burke relied on a 2015 article Ms Justice Bolger wrote while practising as a barrister, which discussed the Workplace Relations Commission and cross-examination on oath. The judge held that the article did not decide the issues in Burke’s case and distinguished practitioners’ legal commentary on draft legislation from a judge’s decision on evidence, law and precedent. She noted that she had granted leave for Burke to pursue a ground challenging the adjudication officer’s treatment of unfair dismissal proceedings as adversarial or essentially adversarial.
A second ground concerned the judge’s past participation with the notice party’s senior counsel in the Employment Bar Association, including speaking at conferences. Ms Justice Bolger found that this professional involvement did not provide a reasonable basis to doubt her impartiality.
Burke also relied on comments made during the July 2022 leave proceedings, including comments about whether her case was in the public interest. The judge said those remarks arose when she refused a request to amend the pleadings to seek relief she considered an unavailable advisory opinion. She said Burke remained entitled to argue the interpretation of the legislation at the substantive hearing and could appeal the earlier decision.
The final ground concerned the notice party’s 2020 proposal of Ms Justice Bolger, then a practising barrister and accredited mediator, as one of three possible mediators. The judge said the mediation did not take place and that the notice party’s solicitor had confirmed no discussion with the judge occurred about including her name. Burke was given leave to reply to that affidavit but chose not to do so, according to the judgment.
Applying the objective-bias test, Ms Justice Bolger concluded that a reasonable and informed observer would not apprehend that she could not hear the case impartially. The judgment makes no determination of the substantive judicial review, which remained to be heard.