Case Note: GetSwift Limited v Webb [2021] FCAFC 26, LAWS6252

This case note analyzes GetSwift Limited v Webb [2021] FCAFC 26, focusing on the Federal Court's decision regarding apprehended bias. The case involves two proceedings: one by Mr. Webb and another by the Australian Securities and Investments Commission (ASIC) against GetSwift. The primary judge intended to hear both cases, potentially leading to bias due to the 'human frailty' of the decision-maker and the possibility of irrelevant information influencing the judgment. The Full Court allowed the appeal, emphasizing the importance of judicial impartiality and the potential for conflicting evidence. The case note examines the procedural history, legal issues, reasoning, ratio decidendi, and the court's order, highlighting the principle that impartiality takes precedence over swift justice. The court determined the primary judge should have disqualified himself from the ASIC proceeding after the trial was heard, and a new judge was assigned. The essay concludes that apprehended bias can arise when a judge hears related proceedings consecutively.

Legal Reasoning
and the Common
Law System

Table of Contents
INTRODUCTION...........................................................................................................................3
MAIN BODY...................................................................................................................................3
Court, Decision-maker and Citation.......................................................................................3
Summary of the case..............................................................................................................3
Procedural History..................................................................................................................4
Legal issues to be decided......................................................................................................4
Reasoning...............................................................................................................................5
Ratio decidendi.......................................................................................................................5
Order.......................................................................................................................................6
CONCLUSION................................................................................................................................6
REFERNCES...................................................................................................................................6

INTRODUCTION
The Common Law legal system is followed by Australia and all its states and territories also
including the New South Wales. The Common Law are those which are not written and rely on
the decisions made by the courts. Generally, the Common Law helps to determine those cases
where the decisions cannot be derived on the basis of the statute laws (written laws). The judges
and lawyers make use of legal reasoning in the common law. The legal reasoning is used to
critically analysis the legal rules derived from various sources of law1. Various methods are used
in order to conduct legal reasoning effectively. Also it reveals how the court or legal
professionals devised the decision or passed the judgement in the case. Thus, the essay examines
the legal reasoning and common law system with the help of case study.
MAIN BODY
Court, Decision-maker and Citation
The Full Court of the Federal Court in GetSwift Limited v Webb [2021] FCAFC 26, in
which respondents applied Lee J to disqualify himself from the initial hearing of this class of
actions on basis of apprehended bias. The judge intends to deliver the judgement in both the
proceedings. As judgement is required to be based upon the evidence and argument which are
put forward in individual proceedings. As in the proceedings of ASIC V GetSwift Limited
[2020] the court rejected the application and unable to derive risk of practical injustice. Further
the recognition of human frailty of the decision maker. Accordingly in case of Oakey Coal
Action Alliance Inc v new Acland Coal Pty Ltd [2020] HCA 2, the same approach was taken and
the key lesson derived in the case is the judicial impartiality by judges and courts.
Summary of the case
Justice Lee of the Federal Court was assigned with the two proceedings in which GetSwift
Limited was alleged with the charges due to its disclosure obligations by Mr Webb and another
civil proceedings was brought by the Australian Securities and Investments Commission against
GetSwift. The allegations brought are in relation of contractual obligations. The proceedings of
the Australian Securities and Investment Commission (ASIC) was heard on 15 June 2020 to 15
July 2020 by the primary judge while the Webb proceedings was commenced on 15 September
1John Griffiths, "Apprehended Bias In Australian Administrative Law" (2020) 38(3) Federal Law Review.

2020 and remain vacated due to the disqualification application on 11 August 2020. The primary
judge accepted that he will be deal with the events in the class action. The primary judge
indicated that he will not deliver his judgment before hearing the proceedings filed by Mr. Webb
and will then altogether deliver the judgement contemporaneously in both ASIC and Webb
proceedings. The primary judge while dealing with the Webb proceeding will hear all the
evidence and liability in the proceedings of ASIC, whereas for determining ASIC proceeding the
primary judge have heard the common issues raised in the Webb proceedings. GetSwift and
other respondent in the Webb proceedings appealed the decision of primary judge, in which the
full court allowed the appeal. As per the Full court, primary judge failed to consider the “human
frailty” in making decision and the information received in each proceedings might cause bias
effect on the decisions2.
Procedural History
The primary judge on seeing the facts of the case decided to hear the ASIC proceeding first
and then the Webb proceedings. He even indicated that he will not deliver judgement in ASIC
proceedings until he hear the latter proceedings. Further the judgement in the proceedings shall
be according to the evidence cited in each proceedings and arguments advanced in each case.
Mainly, he indicated that the evidence and submissions received in each proceedings shall be
used to clear his mind in relation to the evidence and submissions received in the other
proceedings3. In simple words he said that while hearing the evidence of ASIC proceedings he
will determine the Webb proceedings and further will hear the evidences of Webb proceedings in
determining the judgement in the ASIC proceedings. Later on 9 September 2020, the primary
judge granted the leave to appeal and dismissed the interlocutory application applied by the
GetSwift and other respondents, in which they requested to refer the proceedings to the National
Operations registrar for allotting different judge.
Legal issues to be decided
The decision was challenged by the respondents in the Webb proceedings and the primary
judge even granted leave to any party, they wishes to appeal his decision within the 14 days from
the judgement. GetSwift and the other respondent appealed before the Justice Lee of the Federal
2Raphaël Franck, "Judicial Impartiality In Politically Charged Cases" (2019) 29(2) Constitutional Political
Economy.
3Bernard C Cairns, Australian Civil Procedure (2020).

Court. The issue raised that the primary judge might obtain the irrelevant knowledge of
information in the first proceeding which has influenced the outcomes in the latter proceedings.
Another issue is the primary judge erred in concluding the proceedings and he should have
disqualified himself in hearing the Webb proceedings. The primary judge dismissed the
application and he cannot use the cited evidence in ASIC proceedings in delivering the
judgement for Webb proceedings and vice versa. Further the judge erred in holding the evidence
of witness called for ASIC proceedings, which are not of great importance causing irrelevant
information in deciding the latter proceedings. Thus, the primary judge failed to conclude his
impartial mind to deliver the decision in the proceedings.
Reasoning
The Full Court’s decisions affirms that it is unlikely for the Australian judges to hear the
case at first instance and determine both the class of action proceedings arising from the same
subject matter unless there is an exception in doing so. The Full Court allowed the appeal and
said that though the primary judge in its decision considered the relevant issues with a motive to
achieve economies but the judge should have disqualified in hearing the Webb proceedings.
According to the Full Court the primary judge in its decision failed to understand the concept of
“human frailty” and may cause the apprehended biasness leading that the primary judge may not
be able to deliver proceedings effectively4. Consecutively hearing the civil proceeding and the
related class of action ultimately causes the impartial and apprehended bias behaviour as
evidence plays its own role in different way in each case. It causes conflicting evidence which
makes it reasonably aware that primary judge may be influenced by the irrelevant information.
Further the irrelevant information influence the final decision of judge and ultimately causing
ineffectiveness in the judgement. Such is justify if the exceptional circumstances allows to do so.
Ratio decidendi
It is a Latin phase which refers to the principles such as legal, political, social and economic
principles used to provide reason for a particular decision or judgement5. It creates the binding
decisions which need to be adhered by the inferior courts. Such binding precedents help the
judges in determining the legal issues arising in the case. The Full Court of the Federal Court in
4"Nullification Of State Court Judgments Under The Civil Rights Act: Federal Jurisdiction. Civil Rights. Review Of
State Court Decisions" (2021) 15(3).
5Julius Stone, "The Ratio Of The Ratio Decidendi" (2021) 22(6) The Modern Law Review.

GetSwift Limited v Webb [2021] FCAFC 26, caused a binding precedent as it disapproved the
decision of judge to hear both the matters himself instead of disqualifying in one of the
proceedings6. As it creates the risk of apprehended bias because the evidence received in each
proceedings are different, which will expose the judge with irrelevant information ultimately
influencing the final decision of the case. Further it is unlikely for the Australian judges to hear
and determine the civil proceedings and related class of action at first instance, unless exception
provides so.
Order
The court confirms that though the priority is swift and economical administration of justice
but the principle of impartiality overrides in managing the cases. The Full Court of the Federal
Court in GetSwift Limited v Webb [2021] FCAFC 26 overrides the order of primary judge and
allowed the application of the respondent for the allocation of new judge for the proceedings.
The order even preferred the approach that the primary judge should disqualify himself from the
ASIC proceeding after trial is heard and judgement is reserved7. Further the court considered the
primary argument advanced by the GetSwift keeping in view that no prejudgment exist at this
stage.
CONCLUSION
From the essay it is concluded that principle of impartiality overrides in considering the case
though the main motive of the court is the speedy justice. In the above case the Federal Court
focused on the “human frailty” of the decision maker and exposure of irrelevant information
from one proceedings causing ineffectiveness in making decisions in respect of latter
proceedings. Apprehended bias, the word uses mostly in the essay refers when a judge
consecutively hears the regulatory civil proceedings and related proceedings under Pt IVA of the
Federal Court Act 1976 (Cth). The essay effectively concluded the case under the following head
mentioned above.
REFERNCES
Books and Journals
6G. Lamond, "Analogical Reasoning In The Common Law" (2020) 34(3) Oxford Journal of Legal Studies.
7Adam Rigoni, "COMMON-LAW JUDICIAL REASONING AND ANALOGY" (2020) 20(2) Legal Theory.

John Griffiths, "Apprehended Bias In Australian Administrative Law" (2020) 38(3) Federal Law
Review.
Raphaël Franck, "Judicial Impartiality In Politically Charged Cases" (2019) 29(2) Constitutional
Political Economy.
Bernard C Cairns, Australian Civil Procedure (2020).
"Nullification Of State Court Judgments Under The Civil Rights Act: Federal Jurisdiction. Civil
Rights. Review Of State Court Decisions" (2021) 15(3).
G. Lamond, "Analogical Reasoning In The Common Law" (2020) 34(3) Oxford Journal of Legal
Studies.
Adam Rigoni, "COMMON-LAW JUDICIAL REASONING AND ANALOGY" (2020)
20(2) Legal Theory.
Julius Stone, "The Ratio Of The Ratio Decidendi" (2021) 22(6) The Modern Law Review.