Drummond v Canberra Institute of Technology (No 3)

• Jurisdiction: Australia Federal only
• Judgment Date: 23 September 2022
• Neutral Citation: [2022] FCAFC 169
• Date: 23 September 2022
• Court: Full Federal Court (Australia)

Federal Court of Australia

Drummond v Canberra Institute of Technology (No 3) [2022] FCAFC 169

Appeal from:	Application for leave to appeal: Cockburn v Canberra Institute of Technology [2022] FedCFamC2G 646
File number:	ACD 41 of 2022
Judgment of:	RANGIAH, CHARLESWORTH AND BANKS‑SMITH JJ
Date of judgment:	23 September 2022
Date of publication of reasons:	30 September 2022
Catchwords:	PRACTICE AND PROCEDURE - appeal from orders - where primary judge adjourned trial part-heard and made order for appointment of litigation guardian - where terms of appointment included that appellant obliged to identify litigation guardian and notify Court within 28 days on risk that proceeding might be dismissed - where appellant was represented by direct brief counsel at trial - where appellant conducted certain tasks relating to the proceeding himself - whether primary judge erred in application of r 11.07(1)(b) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) that provide for the appointment of a litigation guardian - where primary judge failed to consider appellant's capability to adequately instruct counsel for limited tasks required for completion of trial - appeal allowed in part ; ADMINISTRATIVE LAW - appeal from orders appointing litigation guardian - application for recusal based on actual and apprehended bias of primary judge - whether a reasonable person might apprehend bias - where allegation of actual bias not supported by any conduct - where a reasonable person would not have apprehended bias - where grounds alleging bias not made out - no basis for recusal of primary judge - where application in the alternative for transfer of matter from Federal Circuit and Family Court of Australia to Federal Court of Australia rested on findings as to bias - application to transfer refused
Legislation:	Fair Work Act 2009 (Cth) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 11 Federal Circuit Court Rules 2001 (Cth) Division 11.2 Federal Court Rules 2011 (Cth) rr 9.61, 9.63, 9.66
Cases cited:	Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 Burnett v Browne (No 2) [2021] FCA 373 Cavar v Greengate Management Services Pty Ltd [2016] FCA 961 Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Dennis v Commonwealth Bank of Australia [2019] FCAFC 231; (2019) 272 FCR 343 Drummond v Canberra Institute of Technology [2019] FCCA 2612 Drummond v Canberra Institute of Technology [2020] FCAFC 131; (2020) 278 FCR 436 Drummond v Canberra Institute of Technology (No 2) [2021] FCCA 556 Drummond v Canberra Institute of Technology [2021] FCA 376 Drummond v Canberra Institute of Technology [2022] FCA 1030 Drummond v Canberra Institute of Technology (No 2) [2022] FCAFC 162 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565; (2001) 109 FCR 424 Gambaro v Mobycom Mobile Pty Ltd [2019] FCAFC 144; (2019) 271 FCR 530 Hamod v State of New South Wales (No 11) [2008] NSWSC 967 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Jorgensen v Fair Work Ombudsman [2019] FCAFC 113; (2019) 271 FCR 461 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Matson v Attorney‑General [2020] FCA 1558 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51 Piepkorn v Caroma Industries Ltd [2000] FCA 1230 R v T, WA [2014] SASCFC 3; (2014) 118 SASR 382 R v Watson; Ex parte Armstrong (1976) 136 CLR 248 Re JRL; Ex parte CJL (1986) 161 CLR 342 RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 Vishniakov v Lay [2019] VSC 403; (2019) 58 VR 375 Zanker v Kupsch [2014] SASCFC 13
Division:	Fair Work Division
Registry:	Australian Capital Territory
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	125
Date of hearing:	23 September 2022
Counsel for the Applicant:	The Applicant was self-represented
Counsel for the Respondent:	Ms A Costin with Mr B Sanchez
Solicitor for the Respondent:	Australian Capital Territory Government Solicitor

ORDERS

		ACD 41 of 2022
BETWEEN:	MARK DRUMMOND Applicant
AND:	CANBERRA INSTITUTE OF TECHNOLOGY Respondent

order made by:	RANGIAH, CHARLESWORTH AND BANKS-SMITH JJ
DATE OF ORDER:	23 SEPTEMBER 2022

THE COURT ORDERS THAT:

1. The application for leave to appeal be allowed.

2. The appeal be allowed in part.

3. Orders 1, 2, 3, 4, 7 and 8 of the Orders of the Federal Circuit and Family Court of Australia (Division 2) made on 4 August 2022 be set aside.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1. This application for leave to appeal and appeal came before us for hearing on 23 September 2022 on an expedited basis, primarily because it relates to a trial that is part-heard in the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA). We made orders immediately following the conclusion of the hearing granting leave to appeal and allowing the appeal in part. These are our reasons for doing so.

2. The applicant, Dr Drummond, was apparently employed by the respondent, Canberra Institute of Technology (CIT) on various short, fixed-term contracts between 2003 and 2009 in an academic position. His employment with CIT ended in 2009.

3. In 2015 Dr Drummond commenced proceedings against CIT by originating application, seeking relief under the Fair Work Act 2009 (Cth).

4. The trial of this proceeding finally commenced on 26 July 2022. Two days of the anticipated four days of trial have been completed.

5. Self-evidently the litigation has been protracted. It is not necessary to detail its full history. Its history is set out in other published reasons relating to the proceeding, most of which are referred to below, but the following summary is provided for context.

Summary of events leading to final hearing

6. Dr Drummond has long suffered from mental health issues. The trial of the proceeding was initially listed in the Federal Circuit Court (as it was then known) for hearing in November 2017, but Dr Drummond applied to adjourn the hearing. Orders were made on 28 November 2017 vacating the hearing, dismissing all outstanding applications (including the substantive application), and putting...