Federal Court of Australia

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

ORDERS

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 in place conditions that had to be met before the proceeding could be reinstated. The conditions imposed by the primary judge included that Dr Drummond could apply to re-open the proceeding only if he filed detailed medical evidence at the time of any such application and at intervals of every three months for the duration of the litigation, addressing his ability to conduct the litigation.

7    In May 2018 Dr Drummond filed an application seeking to re-open the hearing. He provided various medical evidence in support, including a letter from his general practitioner, Dr Wessell. He later filed reports from a consultant psychiatrist, Dr Clark, and letters from another psychiatrist, Dr Blanch. Dr Clark's reports had been obtained for a different purpose and did not expressly address the question of Dr Drummond's capacity to re-open and pursue the proceeding.

8    The application was heard on 14 March 2019. Dr Drummond was represented by counsel, Mr Duc. It is apparent that Mr Duc has assisted Dr Drummond by way of a direct brief for certain parts of the proceeding, but not all. After the hearing the parties provided additional submissions in writing addressing the principles relating to delay discussed in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175.

9    On 20 September 2019 the primary judge dismissed all extant applications, including the application for leave to re-open the proceeding: Drummond v Canberra Institute of Technology [2019] FCCA 2612 (Drummond FCCA (No 1)). Having commented on the medical evidence, the primary judge concluded that the evidence filed on behalf of Dr Drummond did not provide him with confidence that Dr Drummond had, or would in the future have, the capacity to present his case at trial.

10    Dr Drummond sought leave to appeal to this Court from those orders. The application and appeal were successful: Drummond v Canberra Institute of Technology [2020] FCAFC 131; (2020) 278 FCR 436 (Drummond FCAFC). CIT did not oppose leave to appeal being granted and conceded that the discretion of the primary judge had miscarried, in that the primary judge gave no consideration to Division 11.2 of the Federal Circuit Court Rules 2001 (Cth) which then applied, and which provided for the potential appointment of a litigation guardian (the similar rule now applicable is set out below in these reasons). CIT conceded that the appeal should be allowed.

11    Following the appeal, in March 2021 the primary judge conducted a hearing in order to determine two matters, being whether a ligation guardian should be appointed, and whether a Notice to Admit Facts should be struck out: Drummond v Canberra Institute of Technology (No 2) [2021] FCCA 556 (Drummond FCCA (No 2)).

12    Relevantly, the primary judge declined to appoint a litigation guardian 'at the present time', but reserved the 'right to do so if there is non-compliance again with any direction or Order of the Court by the Applicant': at [43]. His Honour then re-listed the matter for a four day hearing commencing on 3 August 2021.

13    Dr Drummond filed an application in this Court for an extension of time and leave to appeal from the orders in Drummond FCCA (No 2) and also sought a suppression or non-publication order with respect to the reasons. Apparently because of the intervention of those applications, on 18 June 2021 the primary judge vacated the hearing dates commencing 3 August 2021 and adjourned the proceeding for further directions. The suppression or non-publication application was dealt with separately and was unsuccessful: Drummond v Canberra Institute of Technology [2021] FCA 376 (Katzmann J). On 30 July 2021 the application for an extension of time and leave to appeal was dismissed by consent.

14    On 15 December 2021 further orders were made by the primary judge, including orders that the matter be listed for a four day final hearing commencing on 26 July 2022.

15    It appears (from later reasons) that the question of whether a litigation guardian might be appointed was also addressed at a mention on 4 March 2022 and an interlocutory hearing on 11 April 2022. No appointment was made.

The final hearing commences

16    Dr Drummond was able to obtain the services of Mr Duc as his counsel for the trial by way of direct brief. It is apparent that in the absence of instructing solicitors, Dr Drummond conducted various supporting tasks such as assisting with document bundle preparation and apparently attending certain direction hearings. He also communicated directly with CIT's solicitors and the registry of the (by then) FCFCOA and the chambers of the primary judge.

17    The hearing commenced on 26 July 2022. Dr Drummond gave his evidence in chief and was cross-examined on that day, and for most of the following day. Dr Drummond's case was then closed, subject to closing submissions. At the completion of his evidence, the primary judge said to Dr Drummond:

And again can I thank you, Dr Drummond, and congratulate you. Given everything that has happened that - this isn't a backhanded compliment but my assessment of you when we had that hearing back in March whenever it was, you know, where there was all the questions about the litigation guardian and I said, well, no, from what you did and how you did it I was confident that you would make it through and you have. So… respectfully, can I say well done?

The application to adjourn the hearing part-heard

18    On the morning of the proposed third day, 28 July 2022, Dr Drummond informed the Court by email that he was 'in a state of complete exhaustion and burnout', and was 'unable to continue in the Court Hearing today or tomorrow, or participate in this matter to instruct Mr Duc or otherwise'. He said that he would file an affidavit with a doctor's letter after a scheduled appointment early the following week; and that he considered he would be fine for a continuation of the hearing in October 2022 (being a date that apparently had been foreshadowed as potentially available to accommodate one of CIT's witnesses).

19    Mr Duc appeared before the Court at the commencement of the third day and indicated that Dr Drummond would not be in Court, and that he was seeking some further medical evidence in order to have the matter adjourned.

20    Several options as to how the matter might proceed were flagged by the primary judge. One option was simply to proceed in the absence of Dr Drummond, having regard to the fact that Mr Duc was briefed. A second was to adjourn and find other dates. A third course suggested was to 'dismiss everything', with Dr Drummond later applying to bring it back on if he wished to do so, and potentially relying on the evidence he had already given.

21    Mr Duc pursued the adjournment, submitting that it would be unfair to proceed in Dr Drummond's absence as he might need to take instructions during cross-examination, and that as Dr Drummond was across many of the documents, Mr Duc would require Dr Drummond's assistance.

22    Counsel for CIT sought instructions from her client and indicated that if dates were found 'in the next couple of months' then CIT would be content to have the hearing adjourned, but that if no dates could be found in that time frame, the Court should consider dismissing the proceeding. Counsel submitted that two further days would be required. The primary judge said that it was a given that closing submissions would be in writing.

23    The potential appointment of a litigation guardian was raised by counsel for CIT. Counsel expressly referred to it being an issue arising 'from today', being triggered by the adjournment application and noting that the question of Dr Drummond's capacity to instruct had not arisen during the preceding hearing days.

24    The primary judge asked Mr Duc to take instructions from Dr Drummond that day as to what views he may have regarding the appointment of a litigation guardian.

25    On 29 July 2022 Mr Duc emailed the primary judge's associate stating that Dr Drummond opposed the appointment of a litigation guardian, noting amongst other things that he had suffered a temporary medical event; that he had demonstrated his ability to participate in the proceedings and give counsel instructions; and that it would take substantial time for a litigation guardian to come up to speed with the content of the documentation and the claim in issue. CIT by its solicitor also wrote to the primary judge's chambers, relevantly pointing to prejudice caused by any further delay in securing additional hearing dates.

26    On 3 August 2022 Dr Drummond sent an email to the primary judge's associate attaching a letter from Dr Wessell, and stating that he and Mr Duc would appear at judgment delivery by telephone. Dr Wessell's letter stated:

In my opinion Mark Drummond was unfit to continue participation in the court hearing from 28/07/2022 to 29/07/2022 due to exhaustion.

He had weathered an intense grilling over the issues in his legal case following several weeks of work finalising his response to numerous objections from CIT over documents for the case. These objections were presented just weeks before the hearing, necessitating long hours of work up to and into the first 2 days of the hearing.

He would benefit from a couple of weeks mental rest and recuperation but I believe he is well able to continue the hearing to its conclusion when the court resumes. He is well prepared to cross-examine the CIT witnesses with his barrister as he has ample documentation. I feel appointment of a litigation guardian would occasion a significant extra workload and would constitute a re-traumatisation. This would be detrimental to his health.

The orders of 4 August 2022 and judgment

27    On 4 August 2022 the primary judge made orders and delivered oral reasons (later published): Cockburn v Canberra Institute of Technology [2022] FedCFamC2G 646 (Cockburn). Importantly, those orders included orders relating to the appointment of a litigation guardian and a re-listing of the part-heard hearing on 6 and 7 October 2022. The orders were as follows:

UNTIL FURTHER ORDER, THE COURT ORDERS THAT:

1.    The Court makes an Order under Division 11.2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, and in particular, under Rule 11.07(1)(b) and 11.10(1), for the immediate appointment of a litigation guardian for the Applicant. The reasons record that there is a very wide scope for who may be so appointed, including family or friend. Such person does not need to be legally qualified.

2.    Within 28 days of the date of these Orders, being by 1 September 2022, the Applicant is to notify the Court and the Respondent of the nomination of (or appropriate steps to secure) a litigation guardian. If there is any impediment to that appointment, which arises from any action from the Applicant, subject to evidence and submissions, it may be necessary to dismiss the proceedings.

3.    The Applicant is not permitted to file anything with the Court for the remainder of the litigation. Only his litigation guardian and/or Counsel are permitted to do so.

4.    The Applicant is not to communicate directly with Chambers for the remainder of the litigation. Communication may only be made by his litigation guardian or Counsel.

5.    The part-heard matter be listed for a further 2 day Final Hearing commencing on 6 October 2022 at 10:00am in CANBERRA.

6.    As confirmed by Counsel for both parties at the recent final hearing, for the remainder of the litigation, the Court will only consider claims made by the Applicant in relation to the Fair Work Act 2009 (Cth) and arising under the Collective Agreement.

7.    Subject to evidence and submissions, should the conduct of the Applicant in any way constitute an impediment to the conduct of the remainder of the trial, or the Applicant breaches any of these Orders, the Application may be summarily dismissed.

8.    If the Application is summarily dismissed pursuant to Order 7, subject to submissions, the Court may award costs pursuant to s.570(2) of the Fair Work Act 2009 (Cth).

AND THE COURT NOTES THAT:

A.    Despite previously advising in writing that he would do so, the Applicant did not attend the judgment delivery. This was unfortunate and surprising given how often the Applicant has referred to his keenness to finalise the litigation; and

B.    The Transcript from the Final Hearing on 26, 27 and 28 July 2022 will be admitted into evidence as Exhibit B.

(original emphasis)

28    We summarise the relevant parts of the reasons in Cockburn below at [64].

29    On 18 August 2022 Dr Drummond filed the application in this Court for leave to appeal from the 4 August 2022 orders.

30    For completeness, we note that there have been two interlocutory applications in the appeal proceedings. CIT filed an interlocutory application seeking orders to expedite the hearing of the leave application and appeal, primarily with the intention of protecting the October 2022 hearing dates, if feasible.

31    The expedition application was heard and determined on 1 September 2022, with reasons published the following day: Drummond v Canberra Institute of Technology [2022] FCA 1030. Orders were made to the effect that the application for leave and the appeal were to be heard at the same expedited hearing (later listed for hearing on 23 September 2022).

32    By email exchanges received by the Court and respondent on 13 September 2022, Dr Drummond requested an extension of time for the filing of his submissions, and also requested that the hearing of the leave application and appeal be adjourned for medical reasons. Accordingly, the Court convened a case management hearing and interlocutory hearing on short notice for 16 September 2022. Having heard evidence from both Dr Drummond and Dr Wessell, the adjournment application was dismissed: Drummond v Canberra Institute of Technology (No 2) [2022] FCAFC 162.

Grounds of appeal

33    Against that backdrop we turn to the grounds of appeal upon which Dr Drummond seeks to rely. They are prolix and cover a range of matters including relief beyond that which this Court can grant. However, the grounds can be summarised briefly.

34    They include: allegations of a denial of natural justice (ground 3); allegations that the primary judge's reasons were affected by irrelevant considerations 'including excessive and egregiously improper reliance' upon earlier medical evidence (ground 4); an absence of consideration of matters relevant to the appointment of a litigation guardian (ground 5); and apprehended and actual bias (grounds 12 and 15). At grounds 8 and 9, Dr Drummond records that the orders made on 4 August 2022 begin with a note as to his non-attendance for judgment delivery. Dr Drummond contends that this indicates that the appointment of a litigation guardian was made because of his non-appearance by telephone.

35    Dr Drummond seeks (in summary):

(1)    orders setting aside the orders made on 4 August 2022;

(2)    orders transferring the matter to this Court for all future case management, hearing and determination;

(3)    alternatively to 2, an order removing the primary judge from future involvement in the proceedings; and

(4)    alternatively to 2 and 3, orders permitting him to make an application (without a litigation guardian) in the FCFCOA for the proceeding to be transferred to this Court.

36    We have distilled from the proposed grounds two themes of relevance to the appeal and will collect the arguments accordingly. The first is the allegation that the orders were made in circumstances that reveal apprehended or actual bias on the part of the primary judge; the second is the alleged error by appointing a litigation guardian in circumstances where it is said there was no proper basis for doing so.

37    Although Dr Drummond sought to pursue an application before us for the transfer of the proceeding to this Court, and sought an order recusing the primary judge from further involvement, those are matters that can be disposed of briefly on this appeal. The request for the transfer proceeded from the contention that the primary judge should be recused for actual or apprehended bias. As to recusal, that is addressed in the context of the grounds alleging bias. We do not consider grounds for this Court to recuse the primary judge have been established. It follows that we do not consider there to be grounds for this Court to make orders for the transfer of the proceeding, assuming that it could otherwise do so in the exercise of its appellate jurisdiction.

Leave to appeal

38    The question of leave can be dealt with concisely. The matters relating to the appointment of a litigation guardian and apprehended or actual bias are significant and leave to appeal should be granted because, if the primary judge is wrong, substantial injustice would be caused to Dr Drummond. This injustice is such that the degree of doubt required to satisfy the requirement of sufficient doubt for the purposes of a grant of leave to appeal is slight: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

Apprehended or actual bias

39    In grounds 12 and 15 of his proposed Notice of Appeal, Dr Drummond alleges actual and apprehended bias against the primary judge.

40    Where an appeal involves allegations of bias, the appeal court should first deal with those allegations: Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at [117], [172]; and Jorgensen v Fair Work Ombudsman [2019] FCAFC 113; (2019) 271 FCR 461 at [93]. That is because the allegations, if made out, would strike at the validity of the hearing at first instance and require the matter to be remitted for rehearing.

Dr Drummond's submissions

41    Dr Drummond's outline of submissions elaborates upon his allegations of bias. In particular, he asserts:

4.    … [T]he Applicant now expressly claims and submits, been treated by HH Neville J in a bullying, belittling, discrediting, and at times recklessly and even callously indifferent way, and in ways that can be viewed as manipulative and untruthful - or certainly very inaccurate, such that the retention of matters by the FCFCOA as currently consisted has reached a patently untenable point.

5.    Examples of the inaccuracy referred to at the end of para 3 (sic, 4) above include:

(a)    extraordinary false accusations by HH Neville J on 26 July 2022 (transcript hearing page to be provided ASAP) that the Applicant had confused sections of the ACT Discrimination Act 1991 in some of his claims, whereas in truth the Applicant used accurate point in time versions of the legislation as operative in 2009;

(b)    extraordinary false accusations in connection with Annexure B near the end of the 4 or 11 August 2022 Judgment and reasons, in view of the fact that the Applicant by the time of the Hearing had long communicated his abandonment of much of what Neville J seems to be seeking to publicly shame the Applicant for in that Annexure D;

(c)    extraordinary references in a 4 or 11 August 2022 Judgment and reasons to a Psychiatrist Report by Dr Scott Clark which HH Neville J himself acknowledges were for unrelated matters; and

(d)    other examples similar to those in (a)-(c) which the Applicant has currently forgotten, but which he hopes he recalls by the time of Friday's Hearing.

42    Dr Drummond's outline of submissions continues:

9.    The Applicant submits that an untenably unreasonable state of lockstep indicative of apprehended or actual bias has arisen between the Respondent and its lawyers and HH Neville J which is typified by the actions and correspondence dating between 19 August and 2 September 2022 shown on pages 765-777 and 779-778 (especially 779-785) of the Appeal Book Part C.

43    Dr Drummond also relies upon his written submissions filed in the FCFCOA in which he sought transfer of the proceeding to this Court and recusal of the primary judge. Those submissions assert:

12.    In Drummond No.2 the Court as constituted made several remarks that indicate that the Court will not be able to bring a fair and impartial mind to hear this case. Paragraphs in particular classes as follows demonstrate various concerns that will be expanded upon in oral hearing:

(a)    prejudgment: [5], [19], [23-24], [34-36], [38], [41(a)-(c)], [42], [44];

(b)    excessive blame for delays, at odds with the 24 July 2020 Federal Court Full Bench Appeal decision: [5], [23-24], [41(a)], [41(c));

(c)    procedural bias, including preferential treatment for the Respondent, and excessive Applicant restrictions: [21-22], [27], [38], [41(b)-(c)], [43], [45(d),(g)];

(d)    unbalanced case law consideration: [17], [27], [30-33], [39], [44];

(e)    excessive or petty criticism: [10-11], [13], [16], [18], [21-23], [25], [42], [44];

(f)    discrediting or demeaning comments: [5], [10-11], [19], [23-24], [29], [41-42], [44];

(g)    references to the Applicant's mental health: [3], [6], [10], [24], [41(b)-(c)]; and reports by Psychiatrist Dr Clark for matters 'unrelated to the current proceeding': [41(b)], [44];

(h)    litigation guardian references: [1], [4], [11-12], [29], [41(a)], [42], [43(a)];

(i)    the Applicant's personality or character: [19], [23], [41(b)-(c)], [44];

(j)    dismissiveness of the Applicant's formal victim of crime of crime status: [21], [41(c)]; and dismissiveness and unwillingness to hear and give weight to his other extenuating circumstances: [3], [5-6], [10-11], [16-19], [21-22], [25], [28], [41];

(k)    embellishment: [5], [17], [19], [23-24], [41(c)];

(l)    excessive credence given to 4 September 2009 complaints response: [35], [38];

(m)    excessive rejection of arguably valid Applicant points: [5], [26-28];

(n)    excessive support for arguably invalid Respondent points: [2], [42], [44]; and

(o)    overgeneralised or extreme assessments: [3], [5-6], [13], [26], [41(c)], [42], [44].

13.    Five examples in particular would lead a reasonable person to conclude that the Court cannot bring an open mind to the proceedings:

at [5]: 'the myriad number of personal problems that beset his family circumstances, as well as the general opposition (as he saw it) to the litigation by the Respondent and how its lawyers have impeded the progress of the matter';

at [19]: 'in his guileless but still unhelpful way';

at [23]: 'if there is any way to consume more resources of the Court … with no malice or malafides, the Applicant has a singular talent for doing so';

at [24]: 'While not quite in the league and infamy of Dickens' Jarndyce v Jarndyce'; and

at [41(c)]: 'The Applicant's latest, detailed missive regarding his involvement in some 'victims of crime' aspect … is of a piece with what I call the vagaries of life', with the words 'missive' and 'victims of crime' in quotation marks demonstrating to a reasonable observer that the Court did not take the Applicant's claims seriously.

14.    There has also been preferential treatment in favour of the Respondent and against the Applicant in the management and interlocutory hearing of this matter, including by:

(a)    striking out the Notice to Admit Facts in full on 25 March 2021 following a 12 March Hearing without prior notice of the scope of matters to be determined at what was stated to be an unspecified Directions Hearing, and without requiring the Respondent to file a formal Application to reasonably apprise the Applicant of the cases against him and the Notice to Admit, thereby making the 12 March 2021 Hearing an unfair ambush;

(b)    setting the Applicant low page length limits including 10 pages for an amended statement of claims ordered on 6 June 2016, and just one page for a list of issues to be determined in the 25 March 2021 Orders;

(c)    Court approval of comments in a 2 March 2021 email by Mr Karcher for the Respondent that 'the Respondent considers that the documents filed on 1 February 2021 and 25 February 2021 (entitled 'Notice to admit facts') are not able to be utilised and therefore requests ... for the matter to be relisted', in contrast with the hostile reaction to a 20 November 2017 email by the Applicant raising concerns about the effect of the 14-15 November 2017 Respondent witness Affidavits on proceedings; and

(d)    refusing to accept for filing and hear the Applicant's Application of 18 October 2019.

44    Dr Drummond alleges that the primary judge's orders for the appointment of a litigation guardian were affected by the asserted actual and apprehended bias of the primary judge. Dr Drummond's allegations can be summarised as follows:

(1)    The primary judge engaged in behaviour described as bullying, belittling, discrediting and acting with reckless and callous indifference.

(2)    His Honour made untruthful or inaccurate statements during interlocutory hearings and in his reasons for judgment in Cockburn.

(3)    His Honour treated CIT preferentially, including by acting in a 'state of lockstep' with its lawyers.

(4)    Passages in Drummond FCCA (No 2) demonstrate that his Honour did not bring a fair and impartial mind to the judgment.

Principles - bias

45    We will consider the law concerning actual and apprehended bias before turning to consider Dr Drummond's allegations against the primary judge.

46    As to actual bias, in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71, North J held at 134:

Actual bias exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant.

(citations omitted)

47    His Honour continued at 135:

… [P]roof of actual bias by inference from the facts and circumstances of the case will usually involve an assessment of a series of actions by the decision-maker which, when taken together, form a whole picture leading to the conclusion of pre-judgment. It is unlikely that one single action, as distinct from a pattern of conduct, will demonstrate actual bias.

… [A]ctual bias does not necessarily involve deliberate, knowing, or wilful prejudice against an applicant … A decision-maker may not be open to persuasion and, at the same time, not recognise that limitation.

48    In Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, Gleeson CJ and Gummow J observed at [71]-[72]:

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 decision-maker's mind is blank; it is whether it is open to persuasion … The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.

49    In the present case, Dr Drummond asserts that the primary judge engaged in deliberate conduct against him demonstrating actual bias; it is not merely an allegation that his Honour unconsciously prejudged the case. In Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565; (2001) 109 FCR 424 at [79], Stone J observed that an allegation of actual bias of that kind, 'is not to be made lightly'. In Sun, Burchett J held at 127 that, '…a finding of bias is a grave matter, different in kind from a finding of mere error, or even wrong-headedness, whether in law, logic, or approach'.

50    As to apprehended bias, in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, Gleeson CJ, McHugh, Gummow and Hayne JJ held at [6] that apprehended bias is established:

… if a 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.

(citations omitted)

51    Their Honours explained at [8] that consideration of an allegation of apprehended bias involves two steps:

First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision-making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

52    In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, Gaudron and McHugh JJ observed at 100 that:

… what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.

53    In Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, the plurality observed at [13] that for a judge to express tentative views and to intervene in the conduct of a case does not, of itself, indicate apprehended bias:

At the trial level, modern 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. … 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)

54    Similarly, in Dennis v Commonwealth Bank of Australia [2019] FCAFC 231; (2019) 272 FCR 343, the Full Court observed at [32] that it is prejudgment, not predisposition, which engages the apprehended bias rule.

55    The mere fact that a judge has previously decided a case or made rulings against a party is not enough, without more, to establish apprehended bias. As Mason J held in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352:

It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be 'firmly established'.

(citations omitted)

56    Similarly, Kourakis CJ observed in Zanker v Kupsch [2014] SASCFC 13 at [76]:

Apparent bias cannot be shown by an adverse conclusion in itself. It must appear from a matter external to the trial, or an indication of prejudgment, that is a judgment formed on something other than the totality of the evidence given in the case.

See also Ebner at [7]; Hamod v State of New South Wales (No 11) [2008] NSWSC 967 at [9]; Piepkorn v Caroma Industries Ltd [2000] FCA 1230 at [10] (Wilcox J); Cavar v Greengate Management Services Pty Ltd [2016] FCA 961 at [31] (Bromwich J); and Matson v Attorney-General [2020] FCA 1558 at [413] (Rangiah J).

57    However, previous findings about the credit of a witness, whether in the same proceedings or different proceedings, may lead to a finding of apprehended bias: see British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283 at [139], [145]; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 300; and R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 264.

58    In the present case, Dr Drummond also alleges that the behaviour of the primary judge towards him gives rise to an apprehension of bias. Conduct such as excessive judicial intervention and pejorative comments may create an appearance of bias: see RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 at [11]; R v T, WA [2014] SASCFC 3; (2014) 118 SASR 382 at [38]; and Gambaro v Mobycom Mobile Pty Ltd [2019] FCAFC 144; (2019) 271 FCR 530 at [15]-[26].

Some matters of context

59    Dr Drummond submits that the primary judge's reasons in Cockburn and in Drummond FCCA (No 2) demonstrate bias. He claims that the reasons amount to bullying, belittling and discrediting of him, treat him with reckless and callous indifference and otherwise demonstrate that his Honour was not able to bring a fair and impartial mind to the case.

60    It is important to bear in mind the context of the judgments in Cockburn and in Drummond FCCA (No 2). As is apparent from the history summarised above, each judgment considered whether a litigation guardian should be appointed for Dr Drummond. That issue arose in light of the extraordinary delay in bringing the litigation to finality after its commencement in 2015, Dr Drummond's claimed difficulties with complying with procedural orders, and his production of numerous medical certificates indicating that those difficulties arose from an underlying psychological or psychiatric condition.

61    Another matter of context was the unusual situation concerning Dr Drummond's legal representation. Dr Drummond was represented by direct access counsel, but he continued to play a significant role in the preparation of the proceeding. For example, he prepared the Notice to Admit Facts and the Case Outline. He continued to send emails to chambers, without the consent of CIT, despite the primary judge having previously asked him not to do so. Such conduct was inappropriate, and it was relevant and appropriate for his Honour to criticise this aspect of Dr Drummond's conduct. His insistence on drawing documents and communicating with chambers directly despite having briefed counsel also explains why it remained relevant to consider whether Dr Drummond was himself capable of adequately conducting the proceeding and explains his Honour's focus upon Dr Drummond's conduct of the proceeding in the past.

62    A third matter of context is that as we have noted, the primary judge had made orders on 28 November 2017 dismissing all outstanding applications, but giving Dr Drummond conditional liberty to seek to have the matter reopened within six months (Drummond FCCA (No 1)). Under the orders, Dr Drummond was only entitled to seek to reopen the matter if he filed detailed medical evidence regarding his ability to conduct the litigation. After Dr Drummond had applied to reopen the matter, his Honour dismissed all extant applications on 20 September 2019. In Drummond FCAFC, the Full Court of the Federal Court set aside the relevant November 2017 and September 2019 orders, essentially on the basis that the primary judge had not considered the rules concerning the appointment of a litigation guardian.

Drummond FCCA (No 2)

63    In that factual and legal context, the primary judge came to give the judgment in Drummond FCCA (No 2). His Honour was concerned with two issues, namely whether a litigation guardian should be appointed for Dr Drummond and whether his Notice to Admit Facts should be disallowed. The content of his Honour's reasons may be briefly summarised as follows:

(1)    His Honour began by providing a chronology of the procedural history, noting that the proceeding had been, '… replete with significant delays, obstacles and failures, primarily by the Applicant, to comply with procedural Orders and directions for the filing of documents'.

(2)    Dr Drummond had been largely self-represented, but had now retained direct access counsel, Mr Duc.

(3)    When the matter had come back before the Court on 2 November 2020 following the judgment of the Full Court, Dr Drummond had denied that a litigation guardian was required and confirmed that Mr Duc would be regularly assisting him in the proceeding. Mr Duc had indicated that he would be involved in the litigation to its finality. His Honour had requested that Mr Duc provide written submissions concerning whether a litigation guardian should be appointed.

(4)    Procedural orders were made on 24 November 2020 and a revised timetable was ordered by consent on 14 January 2021 and again on 4 February 2021. His Honour observed that it had been difficult for the Court to bring proper order and precision to the proceedings in the face of the, '…almost supine position of the Respondent to any and every request by the Applicant'.

(5)    An email from Dr Drummond dated 3 March 2021 set out his difficulties with having the matter listed for a hearing concerning his Notice to Admit Facts on a particular date because of proceedings in another court involving his son. His Honour stated that, 'As he has carefully done over the years, in his guileless but still unhelpful way, he explained in detail, for example, the medication that his son was now taking (and previously taking), and the (understandable) impact the criminal litigation involving his son was having upon him'. His Honour noted that Dr Drummond's family issues had been a long-standing issue for his capacity to deal with his own litigation.

(6)    A hearing of the questions of the appointment of a litigation guardian and whether or not to strike out the Notice to Admit Facts was conducted on 12 March 2021 and judgment was reserved. Further emails were sent to chambers by Dr Drummond, notwithstanding that the matter had been reserved, and to which he had failed to copy in his counsel. Dr Drummond had continued to provide correspondence to chambers without the consent of CIT despite having been informed that this was improper.

(7)    By the time the matter ultimately proceeded to trial, it would have been in the court system for more than six years. His Honour observed that, 'While not quite in the league and infamy of Dickens' Jarndyce v Jarndyce in Bleak House, it is nonetheless much too long for the parties to be engaged in litigation without any relevant result or determination of the contest'.

(8)    His Honour noted the contribution of Dr Drummond's mental health issues to the length of the proceeding.

(9)    His Honour stated that the Court had tried to move the matter along, '… only to be regularly, albeit unintentionally, thwarted by the conduct of the parties by one means or another'.

(10)    His Honour concluded that the length of the litigation and consistent non-compliance with procedural orders bespoke the need for some circuit-breaker to ensure basic compliance with orders. So far, nothing had worked. These matters alone almost cried out for a litigation guardian to be appointed.

(11)    His Honour commented that it was no criticism of Dr Drummond that he has mental health issues. An affidavit of Dr Drummond had annexed psychiatric reports which included the comments, 'the severity of Mr Drummond's current psychological symptoms and the risk of further exacerbation in the context of ongoing stressors makes him not psychiatrically fit for usual duties at this time'. The same report listed his conditions as, 'adjustment disorder with anxiety and depressed mood, and obsessional traits'.

(12)    His Honour stated that it was no criticism of Dr Drummond that he also had a range of family issues. His 'latest, detailed missive' appeared to be another exercise in seeking some sort of indulgence for the ongoing delay that had beset the litigation.

(13)    If the litigation had not been so advanced, his Honour would have had no hesitation in appointing a litigation guardian. His Honour expressed very little confidence that any procedural step would be undertaken by Dr Drummond in accordance with the orders of the Court, and compliance would only occur if counsel for Dr Drummond were directly involved in every remaining step in the litigation. His Honour said that this was not a criticism of Dr Drummond, but only a factual observation in light of the course of the litigation.

(14)    His Honour decided not to appoint a litigation guardian at that time, but reserved the right to do so if there was any non-compliance with any order by Dr Drummond.

(15)    His Honour considered the Notice to Admit Facts to be prolix and complex (consisting of 437 paragraphs over 93 pages), that it improperly rolled up matters of fact and law, and that much of its content did not relate to any of the causes of action. His Honour held that the Notice should be struck out.

(16)    His Honour vacated previous procedural orders and made further procedural orders.

Cockburn

64    In Cockburn, the primary judge returned to the issue of whether a litigation guardian should be appointed. By that time, the matter had been listed for hearing, for the third time, for four days from 26 July 2022. As noted above, after the first two days, during which Dr Drummond had given evidence, he notified the Court by email that he was, 'in a state of complete exhaustion and burnout', and that he was, 'unable to continue in the Court Hearing today or tomorrow, or participate in this matter to instruct Mr Duc or otherwise'. It was that event which prompted his Honour to again consider whether a litigation guardian should be appointed.

65    The primary judge's reasons commenced by summarising the conclusions reached. His Honour considered it uncertain when Dr Drummond would next be ready to conduct his litigation and concluded that there was no certain answer because of his 'precarious and fragile mental and psychological state'. His Honour concluded that the history of the matter showed there was no certainty about anything promised or assured by Dr Drummond regarding the conduct of the litigation. His Honour concluded that Dr Drummond's fragile and regularly uncertain mental health and his inability to comply with directions for the filing of documents made it impossible for him to continue to attempt to conduct the litigation.

66    The primary judge's reasons dealt with the following themes:

(1)    Dr Drummond's history of repeatedly seeking extensions of time to comply with orders of the Court.

(2)    The hearing having been adjourned after two days because of Dr Drummond's asserted inability to continue.

(3)    Dr Drummond's apparent lack of understanding of the inconvenience caused to CIT and its witnesses through his difficulties and delays in prosecuting the proceedings.

(4)    The prolixity of documents relied upon by Dr Drummond (which his Honour considered obfuscated, rather than illuminated or clarified, his claims), including his case outline, the Notice to Admit Facts and the provision of multiple iterations of various documents directly to chambers.

(5)    Previous assurances given by Dr Drummond that he would be able to cope with the stresses and strains of the proceeding, but his apparent inability to do so.

(6)    The medical certificates provided by Dr Drummond to support his requests for extensions of time which referred to his stress and anxiety.

(7)    The reports of Dr Clark written in 2017 and 2018 indicating that Dr Drummond has personality characteristics involving an obsessional quality, which was affected by stressors such as preparation for his court proceedings.

(8)    The delays in the litigation ultimately resting with Dr Drummond, although acknowledging the role of his fluctuating mental health.

67    The primary judge concluded:

[78]    Given the history of the matter and the unfortunate but ongoing delays and non-compliance, and the history also of the Applicant's psychological collapse shortly before or during final hearings, whatever his assurance (or that given by his GP) of getting better and being able to cope in the future, there can be no guarantee at all that, if dates are able to be found, he will not collapse again, especially in the face of the range of the Respondent's witnesses, each of whom in Affidavits (albeit prepared and filed in 2017 in expectation of the first final hearing proceeding) categorically deny the various claims and contentions made by the Applicant in his voluminous material.

…

[80]    His wish and desire to proceed with the litigation is patent. His basic ability to prosecute it, and to withstand the standard process of trial, contest and challenge to his claims, is the nub of the present conundrum … The various annexures to these reasons that list the delays, extensions of time, and ongoing non-compliance with directions, Orders and timetables, unfortunately makes plain the abject inability of the Applicant to conduct the litigation satisfactorily as prescribed in Rule 11.07.

…

[82]    I need only record that the breadth of the Rules, for example, regarding who may be a litigation guardian, gives the Applicant here very wide scope to nominate and appoint, for example, a member of his family, or a friend. It does not need to be someone legally qualified. Any such person will doubtless be well acquainted with the litigation and who will likely be in regular touch with the Applicant anyway. As stated many times, the appointment of such a guardian is not a punishment; it is a protection and is intended to be of assistance.

…

[87]    In my view, what is more objective [than Dr Wessell's letters] is the assessment of the Applicant in 2017 and 2018 of Dr Clark, where he spoke (as recorded above) of the Applicant's 'obsessional traits' and his focus upon, for example, his then current employers or managers being compliant with regulations and the like. From his conduct of the litigation since those assessments, the Applicant's obsessional traits plainly remain evident and dictate in many respects the conduct of the litigation. It would seem, based on Dr Clark's assessment, that the Applicant is not able to control them, thus there cannot be undue criticism …

…

[88]    In my view, the brief history recorded here (and in earlier judgments) provides no confidence at all that the Applicant's well-meaning assurances will bear any lasting or appropriate fruit. His litigious conduct and compliance has been very poor throughout the litigation over 7 years. It remains very poor. His consistent and constant failure to adhere to any time-table or Order or direction of the Court is a complete litany of failure and broken promises. His regular inability to cope with the stress of the litigation, and the never-ending delays that have ensued, (a) have consistently been wrongly placed at the feet of the Respondent, and (b) with no responsibility taken by the Applicant for them.

[89]    The ongoing prejudice to the Respondent and its witnesses has never been addressed, or addressed satisfactorily, by the Applicant. Likewise, despite repeated attention being drawn to it, there has been not the slightest attention paid to the relentless demand upon Court resources as if they are almost exclusively and unquestioningly to be available to him. The flow-on effects to other litigants is immeasurable but of no interest or regard to the Applicant.

Consideration - bias

68    In Drummond FCAFC, the Full Court had noted that the primary judge had failed to consider the utility of appointing a litigation guardian. The Full Court observed:

[44]    The occasion for appointing a litigation guardian does not depend on proof of infancy or mental disability giving rise to legal incompetency as that narrow concept is understood in the general law. The rules are wide enough to require a litigation guardian to be appointed for a party who although legally competent is unable to adequately conduct a part of the proceeding, particularly the conduct of a trial. What is 'adequate' in a given case must depend on all of the circumstances. The phrase 'adequately conduct' permits consideration to be given to the Court's case management principles and the legitimate need to protect the interests of other parties and the Court itself from the expense, delay and inconvenience caused by conduct that is the manifestation of a mental illness of a litigant.

69    When deciding whether to make orders for the appointment of a litigation guardian in Cockburn and Drummond FCCA (No 2), it was relevant for the primary judge to consider 'all of the circumstances'. These circumstances included evaluation of Dr Drummond's role in the proceeding not having been finalised despite having been commenced in 2015. It was relevant for his Honour to consider whether the delays were contributed to by Dr Drummond's failure or inability to comply with procedural orders and whether that was contributed to by his psychological or psychiatric state. The primary judge considered that such a contribution was obvious from the many medical certificates provided by his general practitioner and from the reports of psychiatrists, and that it was likely that he would again face difficulties when confronted with the stresses of a trial.

70    The primary judge attributed the delays primarily to Dr Drummond, describing in detail his failures to comply with orders and his requests for extensions of time; his repeated but unfulfilled assurances that he would be able to comply in the future; the inconvenience caused to CIT and its witnesses and his apparent lack of understanding of the consequences of his delays.

71    His Honour described the prolixity and complexity of Dr Drummond's documents (for example, the 437 paragraph Notice to Admit Facts and a dense and confusing case outline). The manner of his conduct of the case in the past was relevant to the question of whether he could adequately conduct the proceeding in the future.

72    The primary judge's analysis of these matters was not gratuitous, but relevant to the question of whether the conditions for the appointment of a litigation guardian were fulfilled, including the question of whether Dr Drummond had the capacity to adequately conduct the proceeding.

73    The primary judge was at pains to emphasise that his reasons were concerned with the ability of Dr Drummond to conduct the proceeding, rather than involving any personal criticism of him. For example, his Honour stated in Drummond FCCA (No 2):

•    'It is not a criticism of [the applicant] to state, only a factual observation in the light of the course of the litigation, that I have very little confidence that any procedural step will be undertaken by him in accordance with the issued Directions of the Court': at [42].

•    'It is also no criticism of the Applicant that he has a range of family issues in addition to his mental health issues': at [41](c).

74    His Honour also stated in Cockburn:

•    'I hasten to note that no comment regarding the Applicant's mental, psychological or other aspect of his health and well-being is a criticism in any relevant respect. Such statements simply record the factual circumstances faced by the Applicant, and in consequence, by the Respondent and the Court': at [6].

•    'I stress immediately that no comments here are any indication of the Court's view about any of the Applicant's diverse claims': at [15].

•    'Doubtless some of the delay is directly due to his various and regularly fluctuating mental health': at [53].

•    'His wish and desire to proceed with the litigation is patent. His basic ability to prosecute it, and to withstand the standard process of trial, contest and challenge to his claims, is the nub of the present conundrum': at [80].

75    His Honour recognised in both judgments that Dr Drummond had not deliberately sought to delay the proceeding and that Dr Drummond was not at personal fault, but that his mental state had contributed to his inability to adequately conduct the proceeding.

76    In the appeal, Dr Drummond contends that the reasons demonstrate excessive 'blame' for delays being placed on him, 'excessive or petty criticism', 'embellishment' and 'overgeneralised or extreme assessments'. He also complains of references to his mental health and the use of reports of psychiatrists concerning matters unrelated to the proceeding. Dr Drummond also complains of 'preferential treatment' of CIT, including 'excessive rejection' of his points and 'excessive support' for the respondent's points.

77    It is inapt to describe the primary judge as 'blaming' Dr Drummond for the delay. Although much of the delay was attributed to Dr Drummond's difficulties with complying with orders and seeking extensions of time, his Honour recognised that those difficulties were largely the product of his mental state. In addition, Dr Drummond has not disputed the factual matters underlying his Honour's attribution of delay, including his having been granted some 16 extensions of time and the trial being adjourned after two days because of his inability to continue. The primary judge's assessment of the reasons for the delay has not been shown to be inaccurate.

78    The reasons do not demonstrate 'excessive or petty criticism' of Dr Drummond. There was criticism of the delays, but his Honour made it clear that this was not personal criticism of Dr Drummond in view of the contribution made by his mental state. The criticisms of the delays cannot be considered excessive or petty in light of the length of time the proceeding had remained unresolved.

79    There is no evidence of any 'preferential treatment' being provided to CIT. Nor was CIT spared from criticism for its part in the delays. For example, his Honour criticised CIT's 'almost supine position' of simply agreeing to the extensions sought by Dr Drummond and its 'small target strategy'. His Honour commented that the Court had tried to move the matter along, 'only to be regularly, albeit unintentionally, thwarted by the conduct of the parties by one means or another'. This was a reference to the conduct of both parties. Dr Drummond has not established 'overgeneralised or extreme statements' or 'excessive rejection' of his points or 'excessive support' for CIT's points.

80    There is no substance in Dr Drummond's complaints concerning the primary judge's references to his mental health and reports of psychiatrists. His Honour was concerned with whether Dr Drummond was capable of adequately conducting the proceeding. His psychological or psychiatric state and the psychiatric reports were centrally relevant to that issue. His Honour's consideration of Dr Drummond's mental health was not, as Dr Drummond seems to suggest, gratuitous.

81    Dr Drummond complains that some of the language used by his Honour was offensive. He gives examples including the following: 'in his guileless but still unhelpful way'; 'if there is any way to consume more resources of the Court … with no malice or malafides, the Applicant has a singular talent for doing so'; '[t]he Applicant's latest, detailed missive regarding his involvement in some 'victims of crime' aspect … is of a piece with what I call the vagaries of life'; and, '[w]hile not quite in the league and infamy of Dickens' Jarndyce v Jarndyce'. It can be accepted that some of his Honour's language is archaic, anachronistic and unnecessarily discursive and, accordingly, may be prone to being misunderstood. For example, his Honour used the word 'guileless' in its literal sense of 'sincere' (see the Macquarie Dictionary Online), but Dr Drummond apparently misunderstood the word as intending to carry offence. The word 'missive' literally means 'a written message', but may perhaps carry a connotation of a lengthy letter. However, his Honour's choice of language was simply a matter of style. In context, it cannot reasonably be construed as insulting or intended to be offensive.

82    The primary judge's reasons would not be regarded by a reasonable person as bullying, belittling and discrediting of Dr Drummond, nor as treating him with reckless and callous indifference. His Honour's consideration of orders for the appointment of a litigation guardian was brought about by the delay in concluding the proceeding. His Honour was required to consider the reasons for the delay and whether or not it was substantially attributable to Dr Drummond. The attribution has been interpreted by Dr Drummond as personal criticism, but his Honour was at pains to emphasise that it was not. His Honour understood and acknowledged the contribution of Dr Drummond's psychiatric state to his difficulties in attending to the procedural steps required in the litigation. It was also relevant for his Honour to consider whether the prolixity and complexity of documents filed by Dr Drummond and their limited relevance to the issues demonstrated that he was not capable of adequately conducting the proceeding. His Honour's criticisms of the documents were relevant and justified. His Honour acknowledged Dr Drummond's asserted family and other personal problems. These were relevant to Dr Drummond's future conduct of the litigation, given his difficulties in dealing with stress. The reasons do not demonstrate bullying, belittling and discrediting of Dr Drummond, or treatment of him with reckless and callous indifference.

83    Dr Drummond complains of, 'extraordinary false accusations … that the Applicant had confused sections of the ACT Discrimination Act 1991 in some of his claims, whereas in truth the Applicant used accurate point in time versions of the legislation …'. This complaint appears to relate to the primary judge having indicated to Dr Drummond's counsel in the course of oral argument that he could not find some sections of the legislation referred to in Dr Drummond's written submissions and that those sections did not appear to exist. Counsel did not respond to that comment. Dr Drummond now appears to assert that the sections referred to were from an earlier version of the legislation. Even if that is so, the comments of the primary judge seem to reflect nothing more than a mistake as to the relevant version of the legislation.

84    Dr Drummond complains of, 'extraordinary false accusations in connection with Annexure B near the end of the 4 or 11 August 2022 Judgment and reasons, in view of the fact that the Applicant by the time of the Hearing had long communicated his abandonment of much of what Neville J seems to be seeking to publicly shame the Applicant for in that Annexure D'. This complaint appears to be that the primary judge annexed to the reasons in Cockburn a list of abbreviations that Dr Drummond had used in his case outline. The document sets out a very large number of abbreviations for particular phrases. It is prolix and confusing. The document was annexed to the reasons to illustrate the difficulties Dr Drummond had with providing coherent documents in support of his case. Even if Dr Drummond had abandoned his reliance upon the document, his past documents were relevant to understanding the difficulties he was likely to have in the future. Accordingly, annexing the document was not gratuitous, but had a relevant purpose.

85    Dr Drummond alleges that, 'an untenably unreasonable state of lockstep indicative of apprehended or actual bias has arisen', between CIT and its lawyers and the primary judge. This statement is alleged to be typified by particular correspondence between the primary judge's chambers and both parties concerning procedural issues. Dr Drummond has not identified what 'state of lockstep' is indicated in the correspondence, and none is apparent.

86    Dr Drummond asserts that there was preferential treatment of the CIT in the management and hearing of the matter, including by striking out the Notice to Admit Facts following a hearing conducted without prior notice of the scope of the matters to be determined and without requiring CIT to file a formal application. Dr Drummond was represented by counsel at the hearing on 12 March 2021. The transcript is not before the Court. There is no evidence of any lack of notice of the striking out of the Notice to Admit Facts, nor of the circumstances in which the Notice came to be considered. There is no evidence of any preferential treatment of CIT.

87    Dr Drummond complains of being set low page length limits, including ten pages for an Amended Statement of Claim and just one page for a List of Issues. It is evident that the primary judge was concerned to avoid the prolixity that had been demonstrated in his documents. It is not apparent that the page limits were unreasonable.

88    Dr Drummond asserts that bias is demonstrated by the primary judge's approval of CIT's comments in an email of 2 March 2021 saying that his Notice to Admit Facts was not able to be utilised and requesting that the matter be relisted, in contrast with the hostile reaction to a 20 November 2017 email by Dr Drummond raising concerns about the effect of CIT's affidavits on proceedings. That correspondence is not before the Court and cannot be assessed.

89    Dr Drummond complains that the primary judge's refusal to accept for filing and to hear his application of 18 October 2019 also demonstrates bias. There is no evidence of the content of that proposed application and the circumstances in which it was rejected.

90    There was simply no conduct by the primary judge capable of demonstrating actual bias against Dr Drummond. The allegation is a serious one that ought not to have been made in the circumstances of the case.

91    Dr Drummond's allegations of apprehended bias must also be rejected. When the judgments of the primary judge in Cockburn and Drummond FCCA (No 2) and the other matters complained of are considered in context, it cannot be concluded that a fair-minded lay observer might reasonably apprehend that his Honour might not have brought an impartial mind to the resolution of the question his Honour was required to decide.

92    Nor is there any basis for concluding that the primary judge's conduct warrants his recusal from the future conduct of the proceeding. His Honour made no personal criticism of Dr Drummond, nor did his Honour make any findings adverse to Dr Drummond's credit.

93    The grounds of Dr Drummond's appeal alleging actual and apprehended bias on the part of the primary judge must be rejected.

Appointment of litigation guardian

94    Whilst there is some overlap, grounds 1, 2, 3, 4 and 5 in particular raise this issue.

The statutory context

95    Relevantly, r 11 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) provides:

11.07    Person who needs a litigation guardian

(1)    For the purposes of these Rules, a person needs a litigation guardian in relation to a proceeding if the person:

(a)    does not understand the nature and possible consequences of the proceeding; or

(b)    is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.

(2)    Unless the Court otherwise orders, a minor in a proceeding is taken to need a litigation guardian in relation to the proceeding.

…

11.10    Appointment of litigation guardian

(1)    The Court may, at the request of a party or on its own initiative, appoint or remove a litigation guardian or substitute another person as litigation guardian in a proceeding in the interests of a person who needs a litigation guardian.

(2)    A person becomes a litigation guardian if the person consents to the appointment by filing an affidavit of consent in the proceeding.

(3)    The Court may remove a litigation guardian at the request of the litigation guardian.

96    The rule differs from that in the Federal Court Rules 2011 (Cth) (see r 9.61, r 9.63 and r 9.66).

97    The primary judge stated in the 4 August 2022 orders that they were made under r 11.07(1)(b) and r 11.10(1). Although there is some suggestion in the reasons that r 11.07(1)(a) was also relied upon by the primary judge (see [60] of the reasons, for example), there is no doubt, in our view, that in circumstances where a party is represented, including in the hybrid manner that pertained in this case, the Court must have regard to r 11.07(1)(b). We address this further below.

98    Further, we note that the drafting of the rule raises a number of issues of construction. It is not necessary for this Court to resolve such issues in order to determine this appeal, and nor is it appropriate to do so, having regard to the expedited nature of this appeal. For example, an issue that arises on its face is whether the order made by the primary judge, which anticipated the future appointment of a litigation guardian once identified by Dr Drummond, in fact constituted an order appointing a litigation guardian under r 11.10(1).

99    It is sufficient to observe that an order for the appointment of a litigation guardian may be made under r 11.07(1)(b) in circumstances where the affected person is not capable of giving adequate instruction for the conduct of a proceeding. Such an order may be made even if the person is able to understand the nature and possible consequences of the proceeding within the meaning of r 11.07(1)(a). What amounts to ‘adequate' instruction will of course depend upon the facts and circumstances of the case. For present purposes, it may be accepted that a person may be incapable of giving adequate instructions for the conduct of a proceeding if the person is frequently but intermittently incapacitated, including because of an inability to cope with the ordinary demands of the proceedings at unpredictable times and for unknown durations.

Principles - litigation guardian

100    The power to appoint a litigation guardian is protective in the sense that disruption to litigation that is not explained by a relevant incapacity may ordinarily justify the exercise of powers for the dismissal of the proceedings for non-compliance with the Court's orders in accordance with ordinary case management principles.

101    The primary judge was on notice of the potential to appoint a litigation guardian and the relevant principles from (at least) the publication of the Full Court's reasons in Drummond FCAFC. We have already extracted [44] of those reasons at [68] above. We quote the following additional paragraphs relevant to the general principles:

[45]    In L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114 at [25], the Full Court (Black, Moore and Finkelstein JJ) said of the power of the Chancery Division of the High Court of England and Wales to appoint litigation guardians:

In substance, the purpose is to protect plaintiffs and defendants who would otherwise be at a disadvantage, as well as to protect the processes of the court. Kennedy LJ said [in Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511] (at [31]):

'In the context of litigation, rules as to capacity are designed to ensure that plaintiffs and defendants who would otherwise be at a disadvantage are properly protected, and in some cases that parties to litigation are not pestered by other parties who should be to some extent restrained'.

Chadwick LJ (at [65]) said:

'The pursuit and defence of legal proceedings are juristic acts which can only be done by persons having the necessary mental capacity; and the court is concerned not only to protect its own process but to provide protection to both parties to litigation which comes before it. A defendant is entitled to expect that he will not be required to defend proceedings brought against him by a person of unsound mind acting without a next friend'.

[46]    The Full Court went on to say (at [26] - [27]):

There is a presumption of competence unless and until the contrary is proved; that is, there is a presumption that a litigant of full age is competent to manage his or her affairs: Masterman-Lister at [17] (Kennedy LJ); Murphy v Doman (2003) 58 NSWLR 51 at [36] (Handley JA). When it is alleged that a person is incompetent, the onus of proof is on those so asserting: Masterman-Lister at [17] (Kennedy LJ); Dalle-Molle v Manos (2004) 88 SASR 193 at [17] (Debelle J); Andreapoulou v Nowak [2002] VSC 462; Pratt v Dickson [2000] QSC 314.

The means by which the court will determine whether a litigation guardian should be appointed can vary from case to case. In Masterman-Lister, Kennedy LJ said (at [29]) that the decision as to capacity rests with the court but in almost every case the court would need medical evidence to guide it.

102    The Full Court concluded by stating:

[56]    In all of the circumstances, the orders made in November 2017 were draconian. So, too, were the orders made in September 2019. Both the orders and the reasons were affected by appealable error. Both were based on the misconception that a litigant suffering from a mental illness sounding in incapacity should have his or her originating application dismissed without any consideration being given to its substantive merits or the power of the Court to appoint a litigation guardian at any time.

CIT's position

103    CIT supported the appointment of a litigation guardian and took the role of contradictor in the appeal. It is fair to say that CIT saw the benefits of such an appointment as extending to the potential disposition of the proceeding, in that a litigation guardian might discontinue Dr Drummond's proceeding or support its dismissal. This potential benefit rather emphasises the need for great care in the making of an order as significant as the appointment of a litigation guardian. We do not say that to criticise CIT. Its frustration in all of the circumstances is perhaps understandable. CIT's submissions otherwise focused on the history of delays and interruptions, supporting the reliance of the primary judge on such matters as fundamental to the orders that were made.

Consideration - litigation guardian

104    We are of the view that the primary judge was in error in making orders intended to facilitate the appointment of a litigation guardian.

105    It is open to the Court to appoint a litigation guardian on its own initiative. The rules are clear in that regard. We also accept that the Court is entitled to rely on its own observations as to the capacity of a litigant, particularly where there is no medical evidence available or the lack of capacity is clear. A litigation guardian may be appointed where competency to conduct (or instruct) with respect to only a part of a proceeding is in issue and for the purpose of that part. These and other relevant principles are usefully referred to by O'Callaghan J in Burnett v Browne (No 2) [2021] FCA 373 at [3], citing Vishniakov v Lay [2019] VSC 403; (2019) 58 VR 375 at [30].

106    However, as we have already observed in the context of the bias argument, it is highly relevant that Dr Drummond was represented by Mr Duc for the purpose of the trial (and there is no suggestion he does not continue to be briefed in that regard). In the absence of a solicitor Dr Drummond had been undertaking some work assisting Mr Duc. He had also undertaken aspects of the conduct of the proceedings by himself, in effect as a self-represented litigant.

107    In such circumstances, the question of whether a litigation guardian is necessary should not be assessed solely as if the litigant is self-represented, but must also acknowledge the important role of counsel. To paraphrase what was said in Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51 at [35], where a person is self-represented, the level of mental capacity required to be a 'capable' litigant will be greater than that required to instruct a lawyer because a litigant in person has to manage court proceedings in an unfamiliar and stressful situation. It follows that the benefit of retaining counsel must be accorded significant weight. It should also be recalled that counsel, having regard to the duties owed to the litigant and as an officer of the Court, must be alive to any issues of capacity at all times.

108    In short, in considering the application of r 11.07(1)(b) in the circumstances of this case, the primary judge was obliged to consider Dr Drummond's capacity to conduct aspects of the litigation himself but was also obliged to consider whether he was capable of giving Mr Duc instructions for the conduct of the proceedings.

109    We consider that error arose in that the primary judge failed to identify and consider the capacity of Dr Drummond to instruct Mr Duc with respect to the tasks that remained to be undertaken by Mr Duc, and in failing to consider Mr Duc's ability to assist Dr Drummond with respect to any remaining tasks that Dr Drummond might seek to conduct himself (such as communications with chambers and CIT's solicitors).

110    The focus of the Court as at 28 July 2022 should have been on the balance of the trial and the particular tasks which remained to be undertaken in order to finalise it, tasks which were to be undertaken in conjunction with or by Mr Duc. The reasons of the primary judge fail to disclose proper engagement with this important context. Rule 11.07(1)(b) required such engagement.

111    There is no doubt that the proceeding has a complex and, at times, difficult history, and the Court had previously raised concerns about delay and non-compliance with Court orders. But as at March 2021 (Drummond FCCA (No 2)), the primary judge did not consider it necessary to appoint a litigation guardian for the purpose of the pending trial, and this apparently remained the position as at March 2022 and April 2022. Based on the exchange between the primary judge and Dr Drummond in Court at the end of his evidence on 27 July 2022 (extracted above), despite Dr Drummond's apparent anxiety witnessed by the primary judge when he gave his evidence, his Honour was satisfied that his earlier decision not to appoint a litigation guardian had been correct, and that Dr Drummond had been able to continue with the hearing without the need for a litigation guardian. The primary judge's observations as at the end of Dr Drummond's evidence on 27 July 2022 did not suggest any appointment was required.

112    Therefore, it is apparent that it was the adjournment application that was the catalyst for the appointment of a litigation guardian being considered again.

113    The primary judge placed significant weight on breaches, delays, and difficulties with procedural tasks and communications that Dr Drummond had encountered in the past when he attempted to undertake such tasks himself, and the stress and anxiety that they caused.

114    Whilst the primary judge was entitled to take into account those matters, the likely extent of any ongoing impact on his capacity to both conduct and instruct on the proceeding should have been considered having regard to a number of matters, such as: that the appointment of a litigation guardian and limitations on Dr Drummond's conduct were being imposed mid-trial; that Dr Drummond was not required to give further evidence; that Dr Drummond was represented by Mr Duc at trial and for the balance of the trial; that all that remained of substance for Dr Drummond's case was the cross-examination of witnesses by Mr Duc; that the closing submissions were to be in writing and prepared by Mr Duc; the extent to which Mr Duc would require instructions from Dr Drummond for those limited steps, noting Mr Duc's own responsibility as counsel to prepare for trial; and, if there remained any procedural steps yet to be undertaken by Dr Drummond in order to complete the trial, whether he could obtain assistance on those tasks from Mr Duc. We do not consider these matters were taken into account.

115    It may be accepted that assuming Dr Drummond instructs Mr Duc over the remaining two days of trial, such a task may involve some anxiety and stress, allowing for the challenges to Dr Drummond's narrative that he might witness. Similarly, carrying out whatever necessary procedural steps that are required during that period might cause anxiety and stress. However, the primary judge did not consider whether Dr Drummond might be capable of adequately undertaking those tasks after a break of a number of weeks and with the assistance of Mr Duc.

116    Mr Duc did not suggest in his correspondence to the Court or submissions that he had concerns as to taking instructions from Dr Drummond during the first two days of the hearing. Nor did he suggest he had such concerns should the hearing resume after an adjournment. The Court should not lightly disregard the role of counsel and the potential for Mr Duc to raise any concerns as to Dr Drummond's capacity to instruct him.

117    In our view, had the primary judge properly considered the role of Mr Duc and the impact of his involvement, his Honour would have considered implementing other options that were available in the circumstances.

118    For example, the primary judge may have required Mr Duc to continue with the trial on 28 July 2022, it being fair to say that Mr Duc should have been prepared to undertake cross-examination on that date as planned (albeit that he submitted to the contrary). To that end, it was necessary to consider the tasks that Dr Drummond was required to undertake and those tasks that were properly the responsibility of Mr Duc. It was not the role of Dr Drummond to conduct the cross-examination of CIT's witnesses. The work required to assist Mr Duc to undertake that task was simply not explored. The primary judge did not ask why Mr Duc did not already have adequate instructions for the conduct of what remained of the proceeding.

119    Alternatively, the adjournment application could have been allowed without the appointment of a litigation guardian. The hearing could have been adjourned to the dates in October 2022 and either Dr Drummond would attend on those dates or he would not. His non-attendance would not of itself prevent the hearing continuing. There was no suggestion Mr Duc would not appear.

120    To the extent potential difficulties remain with steps in the conduct of the litigation that Dr Drummond might elect to undertake himself (such as communications and filings with the Court), there are case management tools that could be deployed. The impugned orders reflect that the primary judge considered it was appropriate for Mr Duc to file documents and communicate directly with the Court for the remainder of the litigation instead of Dr Drummond (see, for example, orders 3 and 4 of the 4 August 2022 orders). Yet the reasons do not disclose that consideration was given to the value of such assistance either in the context of considering Dr Drummond's capability to adequately conduct those parts of the proceeding he undertook or to give adequate instructions for the conduct of the proceeding.

121    Furthermore, it is apparent from order 1 of the 4 August 2022 orders that the primary judge considered that Dr Drummond would identify and secure a litigation guardian. The reasons at [82] (extracted at [67] above) make that plain. Implicit in that requirement is an assumption that he had the capacity to identify someone he wished to appoint as a litigation guardian, inform them about the litigation in sufficient detail for them to understand whether or not to accept such appointment, and ascertain that they would be able to provide useful instructions to Mr Duc, particularly having regard to the wide powers that CIT contends may be deployed by the litigation guardian. All of that was to occur before the date fixed for the resumption of the trial. That approach is especially problematic if it is accepted that Dr Drummond did not lack the mental capacity to understand the nature of the proceedings and its possible consequences. The primary judge's reasons do not expose why Dr Drummond was thought to have sufficient capacity to secure a litigation guardian but insufficient capacity to give adequate instructions to Mr Duc in relation to the performance of the small number of remaining tasks. All of that reinforces our conclusion that the primary judge did not apply r 11.07(1)(b) in accordance with its terms.

122    Finally, we note that the primary judge was highly critical of the reports provided by Dr Wessell and apparently accorded them no weight. Whether or not any weight should have been accorded to those reports is not relevant in light of the manner in which we have determined this appeal.

123    We should not be understood to conclude that a litigation guardian could not be appointed in accordance with r 11.07 depending on the facts and circumstances as the trial progresses. In that regard, the primary judge was correct to proceed from the starting point that the persistent issues affecting Dr Drummond's health or well-being warranted consideration being given to the question, especially given the content of Dr Drummond's own assessment of his capacities on the third day of the trial. To the extent that Dr Drummond submitted that the conditions he described as 'exhaustion' and 'burnout' cannot in any circumstances warrant the appointment of a litigation guardian, that submission cannot be accepted. Speaking generally, an underlying condition giving rise to intermittent incapacity may suffice to satisfy the requirements of the rule. Whether Dr Drummond suffers from any such condition is unnecessary to decide.

124    It follows from the above reasons that we would allow the appeal insofar as it relates to the appointment of a litigation guardian. In the ordinary course, Dr Drummond may now continue to instruct Mr Duc such that the trial might be finalised as anticipated on the two additional days reserved by the primary judge.

Orders

125    Orders were made accordingly on 23 September 2022 to the effect that orders 1, 2, 3, 4, 7 and 8 of the orders of the primary judge made on 4 August 2022 be set aside and the appeal be otherwise dismissed.

Associate:

Dated:    30 September 2022