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‘Extremely serious’ claims question Federal Court judge’s career history

In the course of his racial discrimination complaint against the Fair Work Commission, a man made “extremely serious” claims that a Federal Court judge’s early career influenced her decision making.

user iconNaomi Neilson 05 October 2023 Big Law
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Justice Robert Bromwich of the Federal Court has thrown out Loi Toma’s application for leave to appeal a decision made by Justice Elizabeth Raper on the grounds of apprehended bias due to her professional and social associations prior to joining the court.

Following a complaint to the Australian Human Rights Commission, Mr Toma tried to move an allegation that the Fair Work Commission had racially discriminated against him to the Federal Court.

In October last year, Justice Raper refused his application as there was “no articulation or evidence of how the conduct constituted racial discrimination in the requisite sense and it sought to reagitate matters which had already been reviewed in court”.


In his attempt to seek leave to appeal Justice Raper’s decision, Mr Toma pointed to her swearing-in ceremony, held after the first return date of the proceeding, that was attended by the now-president of the Fair Work Commission. He said the parties were not notified of this.

Justice Bromwich said the president, Adam Hatcher – who was vice-president at the time – was not the “guest of honour”, as Mr Toma alluded to, but it “almost certainly would not matter if he were”.

“Mere attendance at a formal public ceremony of this kind does not afford any basis for suggesting apprehended bias,” he said.

Justice Bromwich said Mr Toma’s allegation does not meet the test in Ebner that sets out no “fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.

Justice Bromwich added this failure to meet the test also applied to Mr Toma’s other submissions that Justice Raper acted for the Fair Work Commission while in practice; had been an associate to the former Australian Relations Commission; co-authored a discrimination law book; and her “social circle, before becoming a justice, involved mingling with members of the respondent”.

“None of these circumstances have been shown to amount to any basis for a fair-minded lay observer to reasonably apprehend that the primary judge might not bring an impartial mind to the resolution of what Her Honour was required to decide,” Justice Bromwich said.

Mr Toma had taken his submissions further by alleging that the rejection of his case established actual bias and Justice Raper’s behaviour “confirms that her conflicts affected her judgment”.

“Such an allegation is extremely serious and should never be made upon the basis of nothing more than a party’s failing case, which is all that is in substance proffered,” Justice Bromwich said.

“A merely adverse result, which is all that remains, will not suffice.

“This aspect advanced for the grant of leave to appeal has no prospect whatsoever of succeeding, and to refuse leave to appeal upon this basis could not possibly occasion any injustice.”