FEDERAL COURT OF AUSTRALIA

Dennis v Commonwealth Bank of Australia [2019] FCAFC 231

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed and the orders made by the Federal Circuit Court of Australia on 27 April 2018 be set aside.

2.    The respondent’s application for summary dismissal be remitted to the Federal Circuit Court of Australia constituted by a different judge for rehearing.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    This is an appeal by leave from orders made by the Federal Circuit Court of Australia.

2    On 19 January 2018, the appellant instituted a proceeding in the Federal Circuit Court against the Commonwealth Bank of Australia. The first return date for the appellant’s application was 12 March 2018. Shortly prior to that date, the respondent indicated to the appellant, who at all times has appeared in person, that it intended to bring an application for the summary dismissal of her claim. On 12 March 2018, the Court discussed various procedural issues with the parties and fixed 27 April 2018 for the hearing of the respondent’s application for the summary dismissal of the appellant’s claim.

3    On 27 April 2018, the respondent’s application for summary dismissal came on for hearing. The appellant appeared in person and the respondent appeared by counsel. After hearing submissions, the primary judge delivered reasons and made orders dismissing the appellant’s application filed on 19 January 2018 pursuant to r 13.10 of the Federal Circuit Court Rules 2001 (Cth) (Dennis v Commonwealth Bank of Australia [2018] FCCA 1159). The basis of the primary judge’s order was his conclusion that the appellant’s claim had no reasonable prospect of success. The primary judge also made an order that the appellant pay the respondent’s costs.

4    On 11 May 2018, the appellant sought leave to appeal from the orders of the Federal Circuit Court.

5    On 30 November 2018, a judge of this Court granted leave to appeal against the orders made by the Federal Circuit Court. The judge delivered reasons for his decision (Dennis v Commonwealth Bank of Australia [2018] FCA 1908). In summary, the judge considered that there was an arguable case of apprehended bias and he granted leave to appeal. His Honour identified arguments which were relevant to the merits of the appellant’s claim under the National Consumer Credit Protection Act 2009 (Cth) (the NCCP Act), but did not express an opinion on those merits. He did not consider that he should do so and, in that respect, he relied on observations made by the High Court in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 (Concrete Pty Ltd) at [2] per Gummow ACJ; at [172] per Callinan J; at [117] per Kirby and Crennan JJ. In forming his opinion that there was an arguable case of apprehended bias, the judge had regard to a transcript of the hearing before the primary judge on 27 April 2018. He also listened to an audio recording of the hearing because of a contention made by the appellant that the transcript did not capture the tone and volume of the primary judge’s voice.

6    On 19 December 2018, the appellant filed a Notice of Appeal which contains seven grounds of appeal.

7    Each party to the appeal filed an outline of submissions in support of their respective cases. The appellant did not appear at the hearing of the appeal. She asked the Court to take into account her submissions and affidavits. The respondent appeared by counsel at the hearing and made submissions in support of the respondent’s contention that the appeal should be dismissed. We have considered the submissions and other material. We have also listened to the audio recording of the hearing on 27 April 2018.

The Appellant’s Substantive Claim

8    The appellant filed a number of affidavits in support of her claim and, as far as we can see, the respondent filed one affidavit in opposition to the appellant’s claim.

9    The judge who heard the application for leave to appeal found it useful in order to identify the background to the appellant’s claim to quote from passages in a previous judgment of the Federal Circuit Court. That is a convenient course. The judgment is Dennis v Minister of Finance [2017] FCCA 45 in which the Federal Circuit Court judge said (at [11], [12], [14]-[16]):

11.    Ms Dennis lives alone with a number of companion animals in a rural setting to the south of Brisbane. Her companion animals (two dogs and three horses) are her family. As she points out, she had and continues to have a legal obligation, as well as a moral obligation, to provide for their care.

12.    On 9 October, 2015 Ms Dennis’ companion dog, an English Setter named Hobson, was diagnosed with hemangiosarcoma. Although Hobson had been unwell for other reasons for some time, he was responding well to his treatment and the care that Ms Dennis was providing for him. However, the diagnosis of hemangiosarcoma was both unexpected and serious. According to Ms Dennis and the veterinary advice that she obtained, Hobson could not be left alone and required her constant care and attention. She was the only person available to provide that care.

…

14.    Ms Dennis needed to be on hand to properly care for Hobson. Ms Dennis was able to immediately secure extended leave, without pay, from each of her employers so that she might stay at home to nurse him. Her employers understood her predicament and the email correspondence to her from them in evidence before me was very supportive of her. She was under no pressure to return to work before she was able to safely leave Hobson on his own.

15.    The duration of Hobson’s illness was entirely unknown. His condition was very serious and according to the material before me, usually resulted in an afflicted dog passing very quickly. However, with the assistance of some trial treatments, Hobson battled the odds. His illness was unexpectedly lengthy.

16.    Without an income Ms Dennis soon, to use her words, “ran out of cash and credit”. She had the debt of some $350,000 that she needed to service as well as to provide for herself and her animals. But her funds were limited and quickly exhausted. She made a number of attempts to acquire funds from various sources, none of which were successful.

10    One of the appellant’s attempts to secure funds was by an application to the respondent for a loan or an extension of a credit facility. The judge who heard the application for leave said that it was unclear which of these alternatives was the correct one. It seems that the appellant had four separate loan facilities at various levels with the respondent as at October 2015 (primary judge’s reasons at [3]). At all events, the respondent refused the appellant’s application for a loan or an extension of a credit facility on 4 November 2015. It was this refusal and the respondent’s conduct in relation to the refusal which was at the centre of the appellant’s claim. The appellant claimed compensation from the respondent in an amount of $750,000, the repayment of interest charged to her account by the respondent and other forms of relief which it is unnecessary to detail.

11    The cause of action which formed the basis of the appellant’s claim was not easy to discern from the written material, but emerged clearly enough in the course of submissions before the primary judge. The starting point is s 178 of the NCCP Act. That section empowers the Court to order compensation to a plaintiff against a defendant for loss or damage suffered by the plaintiff and resulting from a contravention by the defendant of, inter alia, a civil penalty provision of the NCCP Act. The plaintiff has standing to seek an order under the section.

12    The appellant referred to various sections of the NCCP Act which she alleged had been contravened by the respondent.

13    First, the appellant relied on s 47 which specifies what are called general conduct obligations of licensees, that is, holders of Australian credit licences. However, that section is not a civil penalty provision and cannot be the basis of an order for the payment of compensation under s 178 of the NCCP Act.

14    Secondly (and, it would seem, principally), the appellant relied on ss 130 and 131, both of which are civil penalty provisions. Both of those sections are in Part 3-2 of the NCCP Act which contains rules for licensees who are credit providers. The two sections are in Division 3 of Part 3-2 which is described in the Guide to the Part (s 125) as having the following subject matter:

Division 3 requires a licensee, before doing particular things (such as entering a credit contract), to make an assessment as to whether the contract will be unsuitable. To do this, the licensee must make inquiries and verifications about the consumer’s requirements, objectives and financial situation. The licensee must give the consumer a copy of the assessment if requested.

15    Sections 128 and 129, the former being referred to in s 130, provide as follows:

128 Obligation to assess unsuitability

A licensee must not:

(a)    enter a credit contract with a consumer who will be the debtor under the contract; or

(aa)    make an unconditional representation to a consumer that the licensee considers that the consumer is eligible to enter a credit contract with the licensee; or

(b)    increase the credit limit of a credit contract with a consumer who is the debtor under the contract; or

(ba)    make an unconditional representation to a consumer that the licensee considers that the credit limit of credit contract between the consumer and the licensee will be able to be increased;

on a day (the credit day) unless the licensee has, within 90 days (or other period prescribed by the regulations) before the credit day:

(c)    made an assessment that:

(i)    is in accordance with section 129; and

(ii)    covers the period in which the credit day occurs; and

(d)    made the inquiries and verification in accordance with section 130.

Civil penalty:    5,000 penalty units.

129 Assessment of unsuitability of the credit contract

For the purposes of paragraph 128(c), the licensee must make an assessment that:

(a)    specifies the period the assessment covers; and

(b)    assesses whether the credit contract will be unsuitable for the consumer if the contract is entered or the credit limit is increased in that period.

Note:    The licensee is not required to make the assessment under this section if the contract is not entered or the credit limit is not increased.

16    Sections 130 and 131 are in the following terms:

130 Reasonable inquiries etc. about the consumer

Requirement to make inquiries and take steps to verify

(1)    For the purposes of paragraph 128(d), the licensee must, before making the assessment:

(a)    make reasonable inquiries about the consumer’s requirements and objectives in relation to the credit contract; and

(b)    make reasonable inquiries about the consumer’s financial situation; and

   (c)    take reasonable steps to verify the consumer’s financial situation; and

(d)    make any inquiries prescribed by the regulations about any matter prescribed by the regulations; and

(e)    take any steps prescribed by the regulations to verify any matter prescribed by the regulations.

Civil penalty:    5,000 penalty units.

  (1A)    …

  (1B)    …

(2)    The regulations may prescribe particular inquiries or steps that must be made or taken, or do not need to be made or taken, for the purposes of paragraph (1)(a), (b) or (c).

131 When credit contract must be assessed as unsuitable

Requirement to assess the contract as unsuitable

(1)    The licensee must assess that the credit contract will be unsuitable for the consumer if the contract will be unsuitable for the consumer under subsection (2).

Civil penalty:    5,000 penalty units.

Note:    Even if the contract will not be unsuitable for the consumer under subsection (2), the licensee may still assess that the contract will be unsuitable for other reasons.

Particular circumstances when the contract will be unsuitable

(2)    The contract will be unsuitable for the consumer if, at the time of the assessment, it is likely that:

(a)    the consumer will be unable to comply with the consumer’s financial obligations under the contract, or could only comply with substantial hardship, if the contract is entered or the credit limit is increased in the period covered by the assessment; or

(b)    the contract will not meet the consumer’s requirements or objectives if the contract is entered or the credit limit is increased in the period covered by the assessment; or

(c)    if the regulations prescribe circumstances in which a credit contract is unsuitable—those circumstances will apply to the contract if the contract is entered or the credit limit is increased in the period covered by the assessment.

(3)    For the purposes of paragraph (2)(a), it is presumed that, if the consumer could only comply with the consumer’s financial obligations under the contract by selling the consumer’s principal place of residence, the consumer could only comply with those obligations with substantial hardship, unless the contrary is proved.

(3AA)    For the purposes of paragraph (2)(a), a consumer is taken to be able to comply with the consumer’s financial obligations under a contract only with substantial hardship if:

   (a)    the contract is a credit card contract; and

(b)    the consumer could not comply with an obligation to repay an amount equal to the credit limit of the contract within the period determined by ASIC under section 160F.

(3A)    …

Information to be used to determine if contract will be unsuitable

(4)    For the purposes of determining under subsection (2) whether the contract will be unsuitable, only information that satisfies both of the following paragraphs is to be taken into account:

(a)    the information is about the consumer’s financial situation, requirements or objectives, or any other matter prescribed by the regulations under paragraph 130(1)(d) or (e);

  (b)    at the time of the assessment:

(i)    the licensee had reason to believe that the information was true; or

(ii)    the licensee would have had reason to believe that the information was true if the licensee had made the inquiries or verification under section 130.

17    The appellant also relied on s 160D. That section is a civil penalty provision and it provides as follows:

160D Prohibition on giving misleading information etc.

Prohibition on giving misleading information etc.

(1)    A person (the giver) must not, in the course of engaging in a credit activity, give information or a document to another person if the giver knows, or is reckless as to whether, the information or document is:

(a)    false in a material particular; or

(b)    materially misleading.

Civil penalty:    5,000 penalty units.

Offence

(2)    A person commits an offence if:

   (a)    the person gives information or a document to another person; and

   (b)    the person does so in the course of engaging in a credit activity; and

(c)    the information or document is false in a material particular or materially misleading.

Criminal penalty:    5 years imprisonment.

The Primary Judge’s reasons

18    As we have said, the primary judge reached the conclusion that the appellant’s claim had no reasonable prospect of success. In reaching that conclusion, his Honour made a number of points. First, his Honour concluded that s 130 of the NCCP Act only applies in circumstances where the respondent was “looking at increasing the credit limit, and it is only when the credit limit is going to be increased that s.128, s.129, and s.130 need to be complied with” (at [21]). Secondly, his Honour concluded that ss 128, 130, 131 and 160D apply to an increase in credit (at [23]). Thirdly, his Honour concluded that the problem for the appellant was that the sections were designed to ensure that either lending money or extending further credit involved a rigorous process that ensured that a consumer was protected from getting into a financial position from which they would be unable to extract themselves (at [24]). Finally, his Honour concluded that the respondent decided that it should not increase the credit liability of the appellant and there was no evidence that the respondent had failed to comply with ss 130 or 131, those sections (the primary judge said) having to be read with ss 128 and 129. The primary judge considered that what had happened in this case was that the respondent had “looked at all the information that the [appellant] has given it … [and] come to a decision in accordance with all of those sections” (at [27]).

Relevant Principles

19    There are two recent decisions of the Full Court of this Court which have considered the circumstances in which excessive judicial interference in a party’s case leads to a conclusion that a trial or hearing has miscarried and an appeal from orders made after such a hearing must succeed. They are Jorgensen v Fair Work Ombudsman [2019] FCAFC 113; (2019) 371 ALR 426 (Jorgensen) and Gambaro v Mobycom Mobile Pty Ltd [2019] FCAFC 144 (Gambaro).

20    We use these decisions as the starting point for two reasons. First, the judge who heard the application for leave to appeal identified the particulars of the appellant’s complaints by reference to the following matters: (1) the primary judge’s questioning of the appellant, (2) the fact that the primary judge expressed his views in a number of lengthy passages; (3) the fact that the primary judge and the appellant talked over each other, the circumstance that the primary judge at one point shouted at the appellant and at other times was rude and sarcastic; and (4) that at one point the primary judge’s questioning resembled cross-examination of the appellant. Secondly, although the case has proceeded on the basis of an allegation of apprehended bias, it is fairly arguable that it could have been put as well on one or more of the other grounds discussed below.

21    The Courts in Jorgensen and Gambaro identified by reference to previous authorities three grounds upon which excessive judicial intervention may give rise to a denial of procedural fairness or a miscarriage of justice (Jorgensen at [97]–[104]; Gambaro at [17]–[27]).

22    The first ground is referred to as the disruption ground and that involves cases where the judicial interventions unfairly undermine the proper presentation of a party’s case. The interventions may arise in the course of a party giving evidence such that the party is, in effect, prevented from doing himself or herself justice in the giving of his or her evidence or they may arise in the course of a party making submissions.

23    The second ground is where the excessive interventions give rise to an appearance of bias.

24    The third ground is referred to as the dust of conflict ground and that involves cases where the interventions are so marked a departure from the judicial role that the judge’s advantage in objectively evaluating the evidence from a detached distance is unduly compromised (R v T, WA [2014] SASCFC 3; (2013) 118 SASR 382 at [38] per Kourakis CJ).

25    As was noted by the majority in Gambaro (at [22]), these three grounds may overlap. For example, excessive interventions by a judicial officer may satisfy the disruption ground and, at the same time, the test for apprehended bias.

26    In Jorgensen, a case in which the judicial interventions principally occurred in the course of Mr Jorgensen giving evidence, the Court found that the disruption ground and the dust of conflict ground had been made out. The Court concluded that it could not be said that a substantial miscarriage had not occurred and made an order that there be a retrial.

27    In Gambaro, a case in which the interventions occurred in the course of Mr Gambaro’s submissions on an application to amend a statement of claim and for further discovery, the Court concluded that the disruption ground and the dust of conflict ground had been made out. The appellant in Gambaro also alleged apprehended bias, but the Court did not find it necessary to decide whether this allegation was made out (at [28]).

28    The majority in Gambaro, having found that the disruption ground and the dust of conflict ground were made out, was required to consider the consequences of that conclusion in terms of the other grounds of appeal and, more generally, the disposition of the appeal. Their Honours did that by first considering the position if the ground made out was apprehended bias. That is the significance of this aspect of Gambaro to the present case which, as we have said, involves an allegation of apprehended bias. The majority in Gambaro considered the High Court’s decision in Concrete Pty Ltd and said (at [48]):

In our view, the judgment of Kirby and Crennan JJ, taken together with that of Gummow ACJ, makes it clear that grounds of apprehended bias are to be dealt with first, and if they succeed, a retrial will be ordered without deciding the other grounds of appeal. There has been some criticism of their Honours’ judgments in Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 at [9]–[11], [259]–[260] and Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121 at [53], but they are binding upon an intermediate appeal court.

We respectfully agree with those observations. They mean that, in this case, we will consider the ground of apprehended bias first. If made out, a retrial is ordered without deciding the other grounds of appeal.

29    Before leaving Gambaro, we also note that the majority considered that the principles applied equally to an interlocutory hearing as they do to a final hearing (at [50]). We respectfully agree, although that is not to say that the different context attending each type of hearing may not throw up factors relevant to one, but not the other.

30    The test of apprehended bias is well-known. It is articulated in a number of decisions of the High Court: Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 (Johnson) at [10]–[14] per Gleeson CJ; Gaudron, McHugh and Hayne JJ; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2001) 205 CLR 337 at [7]-[10] per Gleeson CJ, McHugh, Gummow and Hayne JJ; Concrete Pty Ltd at [10]–[12] per Kirby and Crennan JJ.

31    It is sufficient for present purposes to set out three paragraphs from the joint reasons of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson (at [11]–[13]):

It is not contended that Anderson J was affected by actual bias. It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair­minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.

That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”. The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.

Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modem litigation. At the trial level, modem judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

(Citations omitted.)

32    It may be appropriate to note at this point that the general context in this case is an interlocutory application for an order for the summary dismissal of a claim of a party who appeared in person. The hearing took place on the afternoon of 27 April 2018 over a period of just under one-and-a-half hours, including in that time, the oral delivery of reasons for judgment. The primary judge had written submissions from the respondent of just over seven pages dated 25 April 2018 and it may be assumed that his Honour was familiar with the legal test on a summary dismissal application. Some provisional views may well have been formed. The aspect of the apprehended bias rule in issue in this case is prejudgment. It is important to note that it is prejudgment, not predisposition, which engages the rule. As Gleeson CJ and Gummow J said in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [71]:

… All that was necessary to constitute bias, it was said, was an inclination or predisposition of mind. Under pressure of argument, this was qualified by the addition of adjectives such as “wrongful” or “improper”. The precise content of those adjectives, in the context, is not clear. Decision-makers, including judicial decision-makers, some­times approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision­maker’s mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.

(Citation omitted.)

The hearing on 27 April 2018

33    At the hearing on the first return date on 12 March 2018, the primary judge advised the appellant that, whilst she bore the onus to establish her claim in due course, on the foreshadowed application for summary dismissal the respondent bore the onus of establishing that it was an appropriate case for the summary dismissal of her claim.

34    As we have said, the respondent filed written submissions of just over seven pages before the hearing. The appellant appears not to have filed any submissions before the hearing.

35    Each member of the Court has read the transcript of the hearing a number of times and has listened to the audio recording of the hearing. We have formed the view that a fair-minded lay observer might reasonably apprehend that the primary judge might not have brought an impartial and unprejudiced mind to the resolution of the question he was required to decide. We have reached that conclusion broadly on the basis of the primary judge’s approach to the hearing and the tone and volume of certain statements his Honour made to the appellant. We hasten to add that we are alive to the fact that the issue before us is one of apprehended bias, not what we might consider preferable judicial behaviour, that there are many different approaches to the judicial function, that the demands of a busy court are many and varied, that some self-represented litigants can be demanding and at times frustrating, and that it is plain beyond argument that a judge has the power and, indeed, the obligation to control the proceedings in his or her courtroom. All of these matters need to be borne in mind.

36    In terms of the primary judge’s approach, even though the application his Honour was dealing with was made by the respondent, he directed his initial questions to the appellant. That in itself may not have given rise to difficulty, particularly as his Honour had written submissions from the respondent. His Honour sought to understand the appellant’s substantive claim and he was entitled to question her about that. The problem was that his Honour never stopped questioning or arguing with the appellant until minutes from the end of the submissions when she spoke uninterrupted for a few minutes. References to the number of lines in the transcript can often be misleading, but even so, save for the final few minutes, we cannot find in 25 pages of transcript any passage of submissions or answers from the appellant beyond seven to ten lines. After an introductory section in which the primary judge quite understandably asks the appellant to identify the sections she is relying on, the balance of the hearing consists almost entirely of argument between the primary judge and the appellant, with the appellant, whatever one might think of the merits of her arguments, remaining for the most part, respectful and straightforward, while the primary judge, with respect to his Honour, is argumentative and overbearing, interrupts the appellant when after a certain point, he would have been well advised to let her finish her submissions and he is too ready to express his exasperation, to belittle the appellant’s arguments and (on a number of occasions) to raise his voice. The appellant was told on a number of occasions that she had to prove a matter (p 17, line 3; p 18, line 33; p 19, line 34). The point was reached at various stages in the submissions when the primary judge and the appellant were talking over each other.

37    The audio recording is important in the conclusion which we have reached because the tone and volume of the primary judge’s voice at various stages is important. This recording indicates that the primary judge raised his voice and spoke in an aggressive and sometimes intimidating tone of voice on a number of occasions when there was no apparent need to do so (p 13, line 19; p 15, line 30; p 16, line 39; p 17, line 17; p 18, line 18; p 18, line 27; p 19, line 25; p 20, line 18; p 20, line 45; p 23, line 36). On one occasion, he adopts a different voice to state what answer he anticipates the appellant will give to a statement he (the primary judge) has made (p 20, line 22).

38    One of the most significant events at the hearing occurs when the primary judge adopts an enraged and intimidating tone of voice in the course of shouting at the appellant for the purpose of admonishing her for talking over him (p 22, line 6).

39    The following extracts from the transcript are examples of the above, so far as they can be conveyed by the written word.

40    Early in the hearing, the following exchange took place (p 3, line 34 to p 4, line 7):

HIS HONOUR: No, hold it. Hold it. Hold it. Hold it. Okay.

MS DENNIS: All right. Well, the section 1 - - -

HIS HONOUR: You’ve got to - don't talk over me.

MS DENNIS: I’m sorry-I didn't - - -

HIS HONOUR: Do not ever - - -

MS DENNIS: I didn’t.

HIS HONOUR: - - - ever do that.

MS DENNIS: I thought you had - - -

HIS HONOUR: No, no, no. Listen. Listen to what’s going on. I’m going to be very patient with you but, as I told you on the first occasion that you were before me, don’t ever interrupt me. Now, you see, section 47 tells you something. But, you see, where is there a – where is there a penalty here for in any way breaching this and how is it a - - -

41    At p 5, line 21 to p 6, line 8, the following exchange occurred:

HIS HONOUR: - - - the only people who – the only entity that can apply for civil penalties is ASIC.

MS DENNIS: Well, I don’t believe that’s correct, your Honour.

HIS HONOUR: So I’m wrong?

MS DENNIS: Well, my entire life has been destroyed.

HIS HONOUR: No, no. I’m wrong, am I?

MS DENNIS: I believe in that case yes, because - - -

HIS HONOUR: Okay.

MS DENNIS: - - - people have to be able to - - -

HIS HONOUR: No. No. Okay. Well, you show me in the Act that – where it is that you, as a person, can apply for - - -

MS DENNIS: I can’t do that on the spot, your Honour.

HIS HONOUR: Well, you see, this is the whole point – is that you need to have a cause of action. See, you are coming with me – before me as if, you know, you can just make a submission that its – that it’s Mabo; it’s the Constitution; it’s the vibe. It doesn’t work like this. It may work in movies but it doesn’t work here. You need to be able to show me exactly what it is that allows you to come to the court. Now, section 166 specifically says:

Within six years of a person contravening a civil penalty provision, ASIC may apply to the court for a declaration the person has contravened the provision.

So when you’re looking at 130 and 131, which are civil penalty provisions, how is it that you can come to the court when section 166 specifically says it’s ASIC?

42    At p 9, lines 36 to 46 and then at p 10, lines 36 to 41, the following exchange took place:

HIS HONOUR: Well, that’s – and that's what you say. But, you see, this is – I’ve got to make sure – when you start then talking about they’ve breached what they have to do about your loans, I’m trying to work out – you see, you can’t just sort of make things up as you go along. The point is here that you have to have a cause of action and that cause of action has to be well and truly made out in your originating application. Now, at the moment, your originating application is very difficult to work out what it is that you’re talking about because of a number of things. Now, you’ve – you know, there’s – in the actual application, that’s how we figure out what it is that you’ve put before the court; okay? The final orders you’ve put in there – your grounds are (1) that the bank breached its responsible lending applications by declining a temporary loan.

…

HIS HONOUR: No, no, no. You’ve got to – you – you know, the problem – and this is why people who represent themselves have a real problem: because you can’t see the forest for the trees. Now, I’m trying to get to a point where – I’m not going to go through, up hill and down dale, everything that you say. I want to summarise. I want to get to the point that gives me what the grounds of your application are. And the whole point is that they declined to give you a loan. That’s it, isn’t it?

43    At p 11, lines 21 to 45, the following exchange occurred:

HIS HONOUR: Ms – look, Ms Dennis – listen to me. You go on about, “They haven’t done this, they didn’t take this into account. Oh, they didn’t take this into account. Oh, they didn’t take this into account. Oh, they gave me this., Oh, they gave me that.” If they had given you a loan, you wouldn’t have cared anything about that, would you?

MS DENNIS: No, because I would still be in employment.

HIS HONOUR: Yes, but that’s the whole - - -

MS DENNIS: I would be managing my debt.

HIS HONOUR: That’s the whole - - -

MS DENNIS: I would have a career.

HIS HONOUR: That’s the whole point.

MS DENNIS: My home wouldn’t be at stake. My valuable property that’s worth about a million – none of that. I wouldn’t have been living in poverty for the last two and a half years. No, none – I wouldn’t have been through any of that.

HIS HONOUR: That’s right.

MS DENNIS: Yes.

44    At p 13, lines 6 to 42 there is a long, unedifying and argumentative exchange where the primary judge and perhaps the appellant appear not to be listening to each other.

HIS HONOUR: It may be, but I don’t care what's coming out of the Royal Commission because it makes absolutely no difference to what the evidence is here.

MS DENNIS: Your Honour, it supports the - - -

HIS HONOUR: No, it doesn’t.

MS DENNIS: The — the - - -

HIS HONOUR: No, it doesn’t. It is not before - - -

MS DENNIS: The basis for case - - -

HIS HONOUR: - - - this court. I deal with what the evidence is before this court.

MS DENNIS: Well, your Honour, I believe that I have provided — like item 37 in my affidavit dated 5 April demonstrates facts which support my case. So you say that I’m making it up as I go along. Well - - -

HIS HONOUR: Well, you have because you haven’t - - -

MS DENNIS: - - - that’s a — that’s a piece of evidence — an email from the Commonwealth Bank which demonstrates facts. That’s not making things up as I go along. Maybe I might have — I’ve explained why I included the FOS determination, and I’m one of - - -

HIS HONOUR: The — the — okay. I will just say that when I said - - -

MS DENNIS: And I’ve probably made - - -

HIS HONOUR: When I said you’ve made it up as you go along — is not a claim by me that you’re fabricating matters. It’s that you’re trying to get to a particular point without actually sitting down and looking at what is your cause of action, what are the legislative areas that you have to satisfy, and how is it that you’re going to prove them. You haven’t done that at all, and you’re - - -

MS DENNIS: Well, your Honour, I - - -

45    There are then statements by the primary judge at pp 16 and 17 that one of the appellant’s submissions is “rubbish” and that she kept going off on “different tangents” before he again raises his voice.

46    The following exchange occurred at p 18, line 44 to p 19, line 46:

MS DENNIS: - - - I suppose the reality is they didn’t take it into consideration because, if they had of taken it into consideration, they would have given me the loan.

HIS HONOUR: Rubbish. That’s rubbish. How on earth – you see, your point is, as far as you’re concerned, anything that you gave to the bank they must – because you’ve done it – why do they even need to consider it? If you’ve said, “I want a loan”, they should just give it to you.

MS DENNIS: I’m not saying that at all, your Honour. I’m - - -

HIS HONOUR: Well, that’s what it is that you’re saying - - -

MS DENNIS: I’m expecting the bank - - -

HIS HONOUR: - - - because you’ve given them the information and they’ve just refused it.

MS DENNIS: I’m expecting the bank to honour their legal lending obligations.

HIS HONOUR: What is their legal lending right then?

MS DENNIS: Well, sections - - -

HIS HONOUR: What is it?

MS DENNIS: - - - 130 and 131.

HIS HONOUR: And that’s what – that’s what you’ve got to show me. What is it that they’ve breached here? Go to section 130. What have they breached?

MS DENNIS: I haven’t brought section 130 with me, but in the - - -

HIS HONOUR: You’re kidding me.

MS DENNIS: With - - -

HIS HONOUR: You’re kidding me. You know exactly what today was about where you had to show that you had a case, and you haven’t got section 130 of the National Consumer Credit Protection Act, the one section that you say - - -

MS DENNIS: I’ve got an extract of it - - -

HIS HONOUR: - - - basis – is the basis for your application, and you don’t have it.

MS DENNIS: I’ve got an extract here, your Honour, and, because I’m a self-represented litigant, I thought that my response – you were - - -

HIS HONOUR: And I told you – I told you that, the first time you came here - - -

MS DENNIS: I didn’t know what I was supposed to do today.

47    The appellant was on occasions not given an opportunity to answer. To appreciate the point, it is necessary to read the transcript and listen to the audio recording. An example is at p 21, line 26 to p 22 line 20:

HIS HONOUR: That’s right.

MS DENNIS: It is.

HIS HONOUR: Because the consumer, on far too many occasions, get in over their head because unscrupulous lenders just keep giving people money when they cannot and could never make the sorts of repayments, and that has caused them all sorts of problems. Your situation is exactly the opposite because what the Commonwealth Bank has done has made a decision that they won’t give you more money because, on their view of all the information, you would be in over your head.

MS DENNIS: Well, that was incorrect, your Honour.

HIS HONOUR: That may be incorrect - - -

MS DENNIS: And it breached their -

HIS HONOUR: - - - that - no.

MS DENNIS: - - - their - - -

HIS HONOUR: But how does it breach? How does it breach there, because they’ve made all the reasonable inquiries and they’ve come to a view.

MS DENNIS: The Commonwealth Bank of Australia is one of the worst, unscrupulous banks in this country.

HIS HONOUR: You go on. That has got nothing to with it. How have they breached - - -

MS DENNIS: Well, it has everything to do with it.

HIS HONOUR: Do not talk over me again. You understand – understand?

MS DENNIS: I understand, your Honour.

HIS HONOUR: Then don’t do it. You go on about all sorts of other things. Stick to the point.

MS DENNIS: This - - -

HIS HONOUR: Section 130 – how have they breached that?

MS DENNIS: All of this – the National Consumer Credit Protection Act being established to protect consumers, it’s supposed to be an industry-wide responsible lending conduct requirement for the Commonwealth Bank. It directly affects me and my case. You know, I’m not going off on tangents, your Honour.

48    The statement by the primary judge in the above passage that the appellant should not talk over him again, is delivered in an enraged and intimidating tone of voice and involves the primary judge shouting at the appellant.

49    We have reached the clear view that a fair-minded lay observer might reasonably apprehend that the primary judge might not have brought an impartial and unprejudiced mind to the resolution of the respondent’s application for summary dismissal. Having regard to all the circumstances, and we stress, all the circumstances, we conclude that a case of apprehended bias has been established. In the circumstances, it is not appropriate to consider the other grounds of appeal.

Conclusion

50    The appeal must be allowed and the orders made by the Federal Circuit Court on 27 April 2018 must be set aside.

51    The respondent’s application for summary dismissal is remitted for rehearing to the Federal Circuit Court of Australia constituted by a different judge.

Associate:

Dated:    16 December 2019