where applicant unsuccessful in application for recusal on grounds of apprehended bias
application of s 570 of the Fair Work Act 2009 (Cth)
whether applicant’s recusal application was an “unreasonable act”
Quick Take
1Section 570(2)(b) of the Fair Work Act 2009 (Cth) is enlivened where a recusal application is brought without evidentiary foundation and proceeds on a fundamental misunderstanding of the court's role, even by a self-represented litigant; the protection afforded by s 570 is not a licence to ignore obligations under ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) and does not shield a party incapable of perceiving the manifest hopelessness of their claims.
2Recusal applications do not form a special class of case immune from adverse costs orders; the relevant inquiry under s 570(2)(b) is whether the act of bringing the application was objectively unreasonable, not whether the applicant held a sincere subjective belief in bias.
3A party has no entitlement to apply for a pro bono referral under r 4.12 of the Federal Court Rules 2011 (Cth); the court's discretion to issue a referral certificate weighs the nature of the issues, the party's resources, the risk of injustice, and the finite availability of pro bono services, and is not engaged merely because a litigant is unrepresented or faces complex legal issues they chose to initiate.
