Federal Court of Australia

Australian Security Academy Pty Ltd v Australasian Institute of Chartered Loss Adjusters Pty Ltd [2026] FCAFC 16

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the respondents’ costs.

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

REASONS FOR JUDGMENT

THE COURT:

1    The appellant appeals the dismissal of its claims for defamation and misleading and deceptive conduct. A claim for injurious falsehood was also dismissed but that is not the subject of the appeal. The proceeding was commenced on 12 March 2021, tried on 7 and 8 April 2025 and dismissed for reasons published by the primary judge on 12 August 2025: Australian Security Academy Pty Ltd v Australasian Institute of Chartered Loss Adjusters Pty Ltd (No 2) [2025] FCA 924 (PJ, ASA and the Institute).

2    Each claim concerns an email sent on 30 June 2020 by Tony Libke, who was then the CEO of the Institute, to Daniel Brennan, an applicant for membership of the Institute. Daniel Brennan had attended a course offered by ASA and had been awarded a Diploma in Loss Adjusting. The Institute is a professional association of chartered loss adjusters. As might be expected, it has prescribed standards for admission to membership. The email in question acknowledged receipt of the membership application and then provided:

AICLA admittance requirements as outlined in the application form states that studies be completed in the ANZIIF diploma of loss adjusting. I note that your studies are in a non-accredited diploma course.

To proceed with your application, you will need to show evidence of enrolment in LA501 or evidence of an application for RPL. RPL guidelines are attached.

Please note that Wendy Deaudney is not a member of the Institute, however many of the technical adjusters are associates or above of AICLA.

3    The email was copied to David Cambridge who was then the managing director of the entity Technical Assessing, an employer of loss adjusters in Australia. Tony Libke copied the email to him as a matter of courtesy, as Technical Assessing employed Daniel Brennan, and David Cambridge had requested Daniel Brennan to apply for membership of the Institute.

4    Michael Evans is the director of ASA. He took offence to the email and initially complained in correspondence with the Institute that it evidenced discrimination. The solicitor for ASA served a Concerns Notice on 3 July 2020. What is not explained is why it then took approximately eight months for the proceeding to be commenced. The statement of claim pleads five defamatory imputations to the effect that the ASA course was inferior and it was misleading its students into believing that, by completing the course, they would qualify for membership of the Institute. On the same basis, ASA contends that the Institute engaged in misleading or deceptive conduct contrary to s 18 of the Australian Consumer Law (ACL), being Schedule 2 to the Competition and Consumer Act 2010 (Cth) primarily because the imputations were representations made about a competitor’s course and were misleading about the accreditation of the ASA course. And then it is further pleaded that the representations were made maliciously and in the knowledge that they were false.

5    The primary judge in comprehensive reasons found as follows. Although the email did not expressly refer to ASA, David Brennan understood that it was the entity referred to, though David Cambridge did not understand that: PJ [79] – [83]. None of the five imputations were conveyed, because his Honour was not satisfied that any arose from the text of the email read in the context in which it was sent. In particular, the primary judge found that “fairly read” the email was Tony Libke’s response to his assessment of David Brennan’s application and in respect of which he sought further information. The imputations alleged were “strained, forced and do not reflect the natural and ordinary meaning of the words”: PJ [85]. His Honour provided detailed reasons for so concluding at PJ [86] – [91]. On that basis, the claims in defamation failed.

6    The primary judge reasoned similarly in respect of the misleading conduct representations at PJ [92] – [96]. The gravamen of his Honour’s reasoning is expressed at PJ [94] that:

No sustainable representation arising out of the 30 June Email has been articulated by ASA. The reasons for this are largely the same as already expressed in respect of ASA’s defamation claim given the representations alleged to be made are largely variants of the imputations ASA alleged.

7    The injurious falsehood claim failed “at the first hurdle” because the imputations alleged were not conveyed: PJ [99].

8    Those findings were sufficient to dispose of the claims. However, his Honour identified another fundamental problem in that, on the expert evidence of two independent accountants, ASA did not suffer any damage and therefore failed to establish any causal relationship with the pleaded claims. Notably, his Honour accepted the expert evidence that the total annual revenue generated by ASA from the Diploma of Loss Adjusting course in the relevant years was 2% of its total revenue and student enrolments in the course (which represented only 1% of total enrolments) increased after June 2020: PJ [100] – [113].

9    ASA being dissatisfied with that result now appeals to this Court. The notice of appeal expresses seven grounds. Ground 7 raises a threshold issue. At a case management hearing on 28 February 2025, the primary judge probed counsel for the applicant, Mr J Levine, about the merits of the proceeding. His Honour asked several questions as to how it was said that the pleaded imputations were made out on the face of the email. Mr Levine did not provide a satisfactory response. At one point in the exchange his Honour characterised the submission about one of the pleaded imputations as “nonsense”. His Honour also confirmed that the case related to publication to only two persons, that no damage had been identified by the accounting experts and that it seemed to his Honour that the proceeding was “trivial”. At that point Mr Levine objected and submitted to the effect that the primary judge should recuse himself. His Honour did not. A contextual matter is that all of this occurred when Mr Levine made an application to his Honour for leave to engage an alternative expert on the questions of damage and damages, which His Honour refused at that late stage of the proceeding.

10    His Honour gave brief reasons for refusing the leave application, in substance that he was not prepared to jeopardise the commencement of the trial scheduled for 7 April 2025, that no additional material had been identified by ASA in support of the damages claim and that he was not prepared to permit ASA to embark on “witness shopping”.

11    On 31 March 2025, ASA applied by interlocutory application for recusal based on what occurred on 28 February 2025. There is no explanation why that application was made five business days before commencement of the trial. In dismissing the application, the primary judge reasoned that the comments focused upon were taken out of context, were selective and did not reflect the substance of the exchange with counsel: Australian Security Academy Pty Ltd v Australasian Institute of Chartered Loss Adjusters [2025] FCA 326 at [24] (RJ). His Honour further reasoned at RJ [26] – [27] that generally interlocutory rulings ought not to be regarded as giving rise to apprehended bias as no issues are finally determined and no adverse credit findings were made.

12    ASA now contends the primary judge erroneously refused the recusal application with the consequence that it was deprived of “a fair trial by an impartial tribunal”. The submissions in support fail to make good that contention. It is not said that the primary judge misunderstood the well-known legal principles applicable to apprehended bias applications at RJ [17] – [22], including the two-step approach which first requires identification of the matters that raise the asserted apprehension and, second, articulation of the logical connection between those matters and the feared deviation of deciding a case otherwise than on merit.

13    Rather, the arguments of Mr Levine selectively identify exchanges from the transcript of the case management hearing and his Honour’s ultimate determination to refuse leave to adduce additional expert evidence. From those matters, the submissions quote from passages in various authorities and, in a conclusory manner, contend that a fair-minded lay observer by application of the double might test would be led to the apprehension that the primary judge had prejudged the damages question and formed adverse views as to the credibility of ASA and of the merit of its claims.

14    The submissions fail to grasp what the primary judge did. His Honour dealt with an informal oral interlocutory application by ASA to engage a new expert on the damage and damages issue. His Honour determined the application after receiving full submissions. That his Honour expressed views in the course of the argument where counsel was afforded a full opportunity to make the submissions “manifests no partiality or bias”: Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at [34], McHugh, Kirby and Callinan J; Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at [112], Kirby and Crennan JJ; Doggett v Commonwealth Bank of Australia [2019] FCAFC 19 at [11], Kerr, Davies and Thawley JJ; and Sayed v National Disability Insurance Agency (No 2) [2022] FCA 1591 at [68] – [70], O’Bryan J. Rather, the issue is whether taken as a whole, cumulatively and in context, what occurred raised the relevant apprehension that the primary judge might decide the case other than on its legal and factual merits and a logical connexion with the matters about which complaint is made and then deviation from impartial determination of the issues in the trial on their merits.

15    In explaining that distinction, the starting point requires recognition that the fair-minded lay observer must be taken to understand that modern case management in the Court is undertaken in furtherance of the overarching purpose of civil proceedings at ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) (FCA Act). Mr Levine properly accepted in oral submissions that the hypothetical observer must be taken to understand the overarching purpose principles in a general way. Case management departs significantly from the previous practice whereby the parties were generally left to progress a proceeding at their pace and without any active intervention by a judge, save for determination of interlocutory applications as and when the parties chose to prosecute pre-trial issues. Parties are duty bound to conduct proceedings consistently with the overarching purpose and their legal representatives must take account of that duty and assist their clients to comply with it. These principles are in part facilitated by the individual docket system and the Court’s approach to case management under the National Court Framework: Central Practice Note: National Court Framework and Case Management (CPN-1), Part 8, pursuant to which the parties and practitioners are encouraged and expected to take a common-sense and cooperative approach to litigation to reduce its time and cost.

16    When a docket judge in this Court undertakes case management, preparation time will be spent in chambers by reading into the matter which frequently results in the identification of issues that require attention by the parties. The issues may concern defects in pleadings, matters that have been overlooked or which require an explanation from counsel as to how it is said that a case or defence will be established. Matters are raised in case management “for the purpose of affording procedural fairness and facilitating the smooth running of the hearing”: Luck v Principal Registrar and Chief Executive Officer of the Federal Court of Australia (Permanent Stay) [2024] FCA 1256 at [30], Wheelahan J.

17    The fair-minded lay observer must also be taken to understand that given this was the first time the proceedings had come before the primary judge as docket judge, the primary judge was entitled to interrogate how continuation of the proceeding conformed with the objectives at s 37M(2) of the FCA Act: the just determination of all proceedings before the Court, the efficient use of the judicial and administrative resources of the Court and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

18    In a well-known passage in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [13], Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ explained the lens through which the hypothetical observer views the role of a judge in conducting modern civil litigation:

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 modern litigation. 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. 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.

19    See also GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Ltd [2013] FCAFC 150 at [36], Allsop CJ, Middleton and Katzmann JJ.

20    The reference to tentative views in Johnson was later elaborated in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 at [140] (Heydon, Kiefel and Bell JJ):

Of course judges are equipped by training, experience and their oath or affirmation to decide factual contests solely on the material that is in evidence. Trial judges are frequently required to make rulings excluding irrelevant and prejudicial material from evidence. Routine rulings of this nature are unlikely to disqualify the judge from further hearing the proceeding. This is not a case of that kind. It does not raise considerations of case management and the active role of the judge in the identification of issues with which Johnson was concerned. At issue is not the incautious remark or expression of a tentative opinion but the impression reasonably conveyed to the fair-minded lay observer who knows that Judge Curtis has found that BATAS engaged in fraud and who has read his Honour's reasons for that finding.

21    The resolution of this appeal ground requires analysis of whether the views expressed by the primary judge were tentative, even when robustly expressed. Ordinarily views expressed in the course of argument with counsel will be merely tentative and exploratory: R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 264, Barwick CJ, Gibbs, Stephen and Mason JJ.

22    It should also be understood that use of robust language does not of itself lead to a conclusion of apprehended bias. In Antoun v The Queen [2006] HCA 2; (2006) 80 ALJR 497 at [27] Kirby J was concerned with when forthright expression “crosses the line”:

So far as the first point is concerned, it is certainly true that the trial judge's remarks were strong and forthright. In some circumstances, that will be a permissible expression to adopt, especially where the trial judge is conducting a trial as the sole judge of fact and law and the parties are legally represented by counsel able to respond with clarity and forthrightness. Judicial indignation at a particular course of action, or proposed action, may on occasion be understandable. Couched appropriately, at the proper time and in due sequence, it may give rise to no reasonable apprehension of bias. For centuries in courts of our tradition, judges have been telling parties and their lawyers, sometimes in quite robust terms, that they consider that a particular submission or course of action is hopeless, a waste of the court's time or doomed to fail. I would not want to say anything that needlessly mollycoddled candid judicial speech addressed to trained advocates.

23    Informed by these principles, we turn to the detail of what occurred before the primary judge. The case management hearing was initiated to deal with a very late application by ASA to adduce alternative expert evidence to prove the economic loss case where there was a risk that if granted, the trial date would be lost. The causes of action that were alleged rendered the expert evidence that no damage had been suffered by ASA very significant. The primary judge expressed views about the strength of the applicant’s case while resolving the application. He did not foreclose full argument on the imputation and damage issues, which were matters for the trial. The primary judge’s probing of counsel for ASA was against the background that ASA is a corporation which complained of an email published to only two persons. The pleaded imputations on their face were strained at the very least, and for the purposes of the tort of defamation, a corporation cannot suffer injury to feelings and is not entitled to damages on account of solatium. A corporation may, however, suffer damage for harm that is measurable in money: Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 at 586 (Neaves J) and 602 – 603 (Pincus J). Likewise, damages awarded to a corporation for misleading and deceptive conduct are to compensate for direct or inferred commercial loss, although a broad-brush approach to the assessment of damages may be necessary: Kazal v Thunder Studios Inc (California) [2023] FCAFC 174; (2023) 416 ALR 24 at [373], Wheelahan J, Wigney and Abraham JJ agreeing. Further, the action for injurious falsehood was actionable only upon proof of some actual damage: PJ [98(d)], citing Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388 at [52], Gummow J.

24    Objectively, this was a small claim where, despite almost four years of litigation, ASA had not adduced any independent evidence that it suffered damage by reason of publication of the email in contrast to the “severe injury” in the pleaded case. In those circumstances, the primary judge was entitled to question counsel for ASA about the relative merit of the proceeding based on a preliminary assessment of the pleaded case and the absence of evidence of causally related damage (noting that the publications preceded the introduction of the serious harm element of the uniform defamation laws in July 2021). He was entitled to express his preliminary view. The fair-minded lay observer is taken to understand that a judge can depart from views expressed at a case management hearing: GlaxoSmithKline at [39].

25    The submissions for ASA selectively reference phrases and incomplete sentences from the transcript of the case management hearing in much the same way as the application was framed before the primary judge. There are nine references to statements by the primary judge during his exchange with counsel and three extracts from the ex-tempore reasons. That approach is erroneous. The entire context must be understood without dissecting and emphasising individual components.

26    Ms Hickey, counsel for the respondents, in methodical oral submissions commenced by emphasising the contextual matters that led to the case management hearing. The accounting experts authored their first joint expert report on 28 June 2024. William O’Shea was engaged as the applicant’s expert and Melinda Bowman for the Institute. They agreed that on the material and assumptions provided that no damage could be assessed. The preparation of their report was facilitated by a Registrar. On 30 July 2024 an order was made requiring ASA to provide supplementary discovery of documents to assist the experts. That order was complied with. The experts provided a supplementary joint report dated 29 November 2024. Once again, they expressed the overall conclusion that damage could not be assessed based on the material provided and the required assumptions.

27    On 17 January 2025, ASA notified the Institute that it would challenge the admissibility of the opinion evidence of Ms Bowman on the basis that she was neither independent nor transparent. It was further contended that her lack of independence had “clearly influenced our client’s expert in the joint expert reports” and that in consequence the opinion of Mr O’Shea was “now questionable”. The Institute advised that it opposed any application by ASA to adduce further expert evidence. Anticipating that ASA would press the application, the Institute served two affidavits: one from Ms Bowman of 31 January 2025 and the other from Ms Sophie Devitt, a solicitor, dated 26 February 2025. ASA answered with an affidavit from Mr Evans filed on 28 February 2025. The Institute also filed an outline of submissions on 27 February 2025.

28    The Institute’s submissions summarised the relevant background, including that by no later than 29 November 2024, ASA was on notice that Mr O’Shea had revised his opinion to conclude that the evidence did not support the damages claim. There was reference to the affidavit of Ms Bowman, to rebut the “serious” allegation that she had departed from her duty as an expert witness by improperly influencing Mr O’Shea during the joint expert conclaves. No contrary evidence was provided by Mr O’Shea. The submission characterised the application of ASA as an attempt to engage in “expert shopping in circumstances where Mr O’Shea’s opinion does not assist its case”. The submission referenced the judgment of the English Court of Appeal in Guntrip v Cheney Coaches Ltd [2012] EWCA Civ 392 at [17], Lewison LJ where in part his Lordship observed:

The expert's overriding duty applies not only to the preparation of an initial report, but also to the preparation and agreement of a joint statement with an expert advising an opposing party as well as, of course, to evidence given orally in court. If at any time the expert can no longer support the case of the person who instructed him, it is his duty to say so. Indeed, if the expert forms that view it is far better that he says so sooner rather than later before the litigation costs escalate. It is partly because an expert's overriding duty is to the court that the court discourages expert shopping, particularly where a party has had a free choice of expert and has put forward an expert report as part of his case. He must adduce good reason for changing expert. The mere fact that his chosen expert has modified or even changed his views is not enough. The expert may have had good reason for changing his views. 

29    The submissions provided another reference to a case that had criticised the practice of expert witness shopping: The Estate of Genevieve Bryan [2021] NSWSC 567 at [69] – [71].

30    In this matter, Mr O’Shea did change his opinion during the expert conclaves. In his report of 2 November 2023, he opined that ASA’s business suffered a considerable downturn in the 2021 and 2022 financial years of $295,612 or approximately 40% of its business revenue. He did not express an opinion whether that was caused by publication of the email. His opinions were expressed in relation to the revenue of all the courses offered by ASA, and not simply the course the subject of the email.

31    Mr Evans in his affidavit of 18 February 2025, had much to say in the form of inadmissible submissions, though by way of facts he identified that Ms Bowman had attended a course offered by ASA (a Certificate in Investigative Services) in May 2016, as a qualification for the issue of a Victorian Private Investigator Licence. He claimed that ASA had been unfairly prejudiced and disadvantaged by Ms Bowman’s failure to earlier disclose those facts and asserted that she was not an independent expert. He went so far as to contend that her evidence “is likely to mislead the Court and is unfairly prejudicial to the applicant and lacking probative value”. Of course, that was an inadmissible submission by Mr Evans.

32    In contrast, Ms Bowman in her affidavit acknowledged her attendance at the ASA course and explained that when she was instructed she did not “immediately realise” that she had attended it. Nonetheless, she explained that it was not at all relevant to the opinions expressed in her reports, and maintained that at all times she had complied with the Expert Witness Code of Conduct.

33    His Honour commenced by observing that he had read the statement of claim and the other material on the Court file and that in doing so:

I was somewhat shocked to see what the fight is about. It’s simply about this one email. Is that correct?

34    Counsel answered affirmatively to that question, and his Honour was then taken to some paragraphs in the statement of claim by way of explanation of the pleaded imputations. His Honour sought an explanation as to how two of the imputations, by way of example, were made out. The first pleaded imputation was that the ASA course was not accredited which counsel submitted was untrue. His Honour did not cavil with that submission and then asked counsel: “What else do you say are the imputations”? Counsel responded:

MR LEVINE: The applicant is not a fit or registered training body that falsely - - -

HIS HONOUR: So just explain to me how that arises from that one paragraph.

MR LEVINE: Well, it's in relation to:

I note that your studies are in a non-accredited diploma course.

HIS HONOUR: That's nonsense, Mr Levine.

35    That exchange concerned the second pleaded imputation. That nonsense remark responded to counsel’s drawing of a link between the statement that studies are in a “non-accredited Diploma Course” and the imputation that ASA is not a fit or registered training body. That observation, although expressed in robust language, reflected his Honour’s preliminary view at a pleading level. His Honour asked counsel to explain how the pleaded imputation was made out. That is, whether the email conveyed the pleaded imputation invited attention to the question of defamatory capacity. Resolution of this issue turned solely on whether the pleaded imputation was capable of being conveyed by the email in context to an ordinary reasonable reader. This was an exchange about the pleaded case, not a pre-determination of the issue at trial. The hypothetical fair-minded observer is taken to have knowledge of the nature of that question and the factual circumstances: Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [23]. As such, he or she with knowledge of the pleading would understand that the primary judge was entitled to interrogate counsel on that question, reflecting the tentative view of the judge. The primary judge was not required to approach the case with an empty mind.

36    Once all of this is understood, this exchange does not support the conclusion that a hypothetical fair-minded lay observer might reasonably apprehend bias by reason of pre-judgment by the primary judge of the defamatory capacity issue of the second pleaded imputation.

37    There was no discussion of the third to fifth pleaded imputations.

38    The discourse then focused on the question of damage. It commenced with his Honour asking counsel whether the damages claim was supported by the expert evidence. His Honour had obviously considered the expert reports, including the joint reports to the effect that no damage could be identified by reason of the publication.

39    Rather than concede that was the effect of the evidence, counsel contended that Ms Bowman was not independent because she had completed a course with ASA in 2016, which she had not disclosed in her report. From that, counsel submitted that ASA had lost confidence in Mr O’Shea and “the entire process” (that is in the integrity of each expert) because it should be inferred that Ms Bowman influenced the outcome of the conclave in a manner adverse to the claims of ASA. That was a problematic submission. Even if there was some form of bias, without more that is not a ground to reject the evidence as inadmissible: Kirch Communications Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485 at [14], Campbell J.

40    There are two relevant exchanges. In the first, the primary judge stated that he would not permit ASA to adduce alternative expert evidence:

HIS HONOUR: At the moment I understand that both experts, having conferred, say there is no damage.

MR LEVINE: Well, we state that with respect to the respondent’s expert, that expert is not independent, and we’ve filed an affidavit to that effect.

HIS HONOUR: Yes, I’ve read the material in relation to that - - - - - -

MR LEVINE: And we will be - - -

HIS HONOUR: - - - and I will deal with that at the trial.

MR LEVINE: And we will be seeking to provide further expert evidence.

HIS HONOUR: I’m not permitting you to do that.

MR LEVINE: Well, we submit that would be very unfair, your Honour, because we - - -

41     His Honour did not accede to that application and the exchange continued:

HIS HONOUR: The resources of this Court are valuable. You don’t just get to bring any proceeding as trivial as this.

MR LEVINE: Well, your Honour, you're going to be hearing this proceeding and if you start saying things like trivial, then the question is - - -

HIS HONOUR: No, it is trivial.

MR LEVINE: Well, then perhaps your Honour shouldn't be hearing it.

HIS HONOUR: Well, you should make whatever application you like.

42    The second exchange occurred when counsel pressed the application on the basis that the conclave process had been compromised:

HIS HONOUR: Well, can you tell me what the explanation is then?

MR LEVINE: Well, my client has lost confidence in the expert evidence, because he doesn’t - - -

HIS HONOUR: What does that mean?

MR LEVINE: I’ve – sorry. My client takes a view that the respondent’s expert is not independent, that a lack of independence resulted in - - -

HIS HONOUR: Resulted in what?

MR LEVINE: That resulted in the findings that were made in the conclave.

HIS HONOUR: All right. So how does that affect Mr O’Shea’s evidence?

MR LEVINE: Well, because he was in a conclave with Ms – with the respondent’s expert.

HIS HONOUR: This is just nonsense, Mr Levine.

MR LEVINE: Well, it’s – I – the Federal Court Rules are clear about independence. My client is going to – has sworn an affidavit. It’s going to be in contest - - -

HIS HONOUR: So is Ms Boman [sic] - - -

MR LEVINE: - - - his evidence with the expert. And with the greatest respect, it’s nonsense not to get an expert who’s not fully independent and has nothing to do with the parties.

HIS HONOUR: There’s two different issues here, aren’t there? One is this issue that you raised today, which is about the independence of Ms Boman [sic]. And there’s a separate issue about you wanting to tender fresh expert evidence going to loss and damage. That’s the second issue, isn’t it?

MR LEVINE: No. We submit that they’re interconnected.

HIS HONOUR: And how are they?

MR LEVINE: Well, because the conclave in which they – the experts conferred and agreed, my client takes the view that it was – how can I say – not – that it was not – I’m looking for the right word – that it wasn’t as fair and independent as it could be.

HIS HONOUR: So what happens if I give you leave to file further expert evidence and you don’t like it? Are you going to ask for another expert?

MR LEVINE: No, that’s obviously - - -

HIS HONOUR: Just shop around until we get the result we want?

MR LEVINE: That’s obviously the end of it. Either we get the leave- if your Honour grants us the leave, we’re stuck with that expert evidence - - -

HIS HONOUR: Yes.

MR LEVINE: - - - one way or another.

HIS HONOUR: Yes. Take a seat.

43    His Honour then received submissions from counsel for the Institute. Thereafter, he gave brief reasons for refusing the application.

44    The apprehended bias submission on this aspect fails at the first hurdle. The primary judge was not prejudging the case of ASA. He determined a belated application to set at nought the expert evidence process by granting ASA the indulgence of briefing an alternative expert with the likely consequence that the trial date would be lost. The basis for the application was flimsy. To suggest that the remote past attendance of Ms Bowman at a course offered by the applicant in 2016, then led to her having formed an unspecified adverse view of ASA which then caused her to influence the views of Mr O’Shea is manifestly absurd. All experts who prepare reports and adduce evidence in this Court are duty bound to comply with the Expert Evidence Practice Note (GPN-EXPT). The robust language deployed by the primary judge was justified in determining a discrete application. The primary judge approached the issue of the alleged lack of independence by deferring that question to the trial. The primary judge was correct to do so.

45    Justice O’Bryan well summarised the applicable principle in Sayed at [69] – [70]:

As stated earlier in these reasons, the common law principles concerning bias are concerned with circumstances that might lead a judge to decide a case other than on its legal and factual merits or that might create a reasonable apprehension of that occurring. As observed by Perry J in DOQ17 v Australian Financial Security Authority (No 2) [2018] FCA 1270; 363 ALR 681 at [15], generally speaking, interlocutory rulings ought not to be regarded as giving rise to a reasonable apprehension of bias or actual bias because they necessarily precede the final resolution of the proceedings and therefore do not finally determine any of the issues. In Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 (Michael Wilson), the majority (Gummow ACJ, Hayne, Crennan and Bell JJ) rejected an allegation of apprehended bias arising from a number of interlocutory rulings made by Einstein J at first instance for the reason that (at [72]):

“In none of the applications was Einstein J required to make, and in none of the applications did he make, any determination of any issue that was to be decided at trial.”

As recognised in many cases, the determination of interlocutory applications may disqualify a judge from hearing a proceeding, but that will only occur if the judge has been required to make adverse credit findings or otherwise make statements or rulings that prejudge an issue to be determined in the proceeding or create a reasonable apprehension of such prejudgment: cf Michael Wilson at [72]-[73]; Westpac Banking Corporation v Forum Finance Pty Ltd (Apprehended Bias Application) [2022] FCA 981 at [7]-[11]. None of those circumstances exist in the present case.

46    Nor do we consider that the hypothetical fair-minded lay observer, because of the way in which the primary judge determined the application, might reasonably apprehend that his Honour might not bring an impartial mind to the resolution of the issues in the proceeding. The primary judge was concerned with the use of the resources of the Court in a case of small scope where the applicant, three weeks from commencement of the trial, had no expert evidence to sustain the case that it had suffered severe injury to reputation with consequential financial loss. Applicants in this Court are at material risks for costs if the result is an award of damages of less than $100,000, where an order may be made to reduce the amount of recoverable costs: r 40.08 Federal Court Rules 2011 (Cth). More broadly, this Court’s resources are finite and consumption by small disputes that are more appropriately brought in a Magistrates’ Court or a Small Claims court is a matter that the hypothetical fair-minded observer would understand as proper for a docket judge to raise in case management. ASA latches onto his Honour’s “trivial” remark but fails to identify why that characterisation might lead the hypothetical fair-minded lay observer to apprehend that his Honour might decide the case other than on merit. It was a tentative view arising directly from the absence of expert evidence that any financial loss was suffered. The case was at that late stage indeed trivial.

47    It is undeniable that his Honour used robust language: “nonsense” and “trivial”, but in the context of trying to understand how ASA put the case. His Honour was not expressing views on the evidence or as to the credibility of any witness. His Honour repeatedly asked counsel to “explain” how the pleaded case was put and whether it was supported by the expert evidence. His Honour sought clarification from counsel. He expressed his understanding of the expert evidence that the financial damage case of ASA could not be sustained on the uncontradicted expert evidence three weeks prior to the trial. The primary judge was entitled to test and probe into those issues in the context of a very late application to adduce alternative expert evidence. A fair reading of the entire exchange with knowledge of what case ASA sought to make reveals that the primary judge engaged in a robust exploration of the issues with counsel that was calculated to evoke a response, whether at the case management hearing, or later at trial where there would be an opportunity for full argument.

48    When the primary judge spoke of “witness shopping”, he addressed the matter raised in the submissions of the Institute as a reason to refuse the late application to adduce alternative expert evidence. Further, as Mr Levine properly conceded in oral submissions, if the application had succeeded the trial date would likely have been lost. There can be no doubt his Honour was cognisant of that risk.

49    When his Honour characterised the case as “trivial” he was not predetermining the defence of triviality then available to the Institute under s 33 of the Defamation Act 2005 (Qld). What is clear from the context of each of his Honour’s two references to trivial is the expression of concern about proportionality: that is, why a case about one email sent to two persons where the applicant did not have any expert evidence of damage should be in this Court. The resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute forms a component of the duty of all litigants: s 37M(2)(e) FCA Act.

50    In this case adverting to perceived weakness in primary aspects of the case did not rise to the level of apprehended bias. This ground fails.

51    We turn next to grounds that contend error in the primary judgment. They are poorly drawn. Frequently this Court has criticised the practice of formulating appeal grounds that do not grapple with what is the asserted error of fact, law or discretion. The obligation of an appellant in a notice of appeal is to expose the asserted error: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [22] – [30]; Bahonko Pty Ltd v Sterjov [2008] FCAFC 30; (2008) 166 FCR 415 at [2] – [4]; and SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2025] FCAFC 34; (2025) 308 FCR 474 at [129] – [145].

52    Appeal grounds 1 to 3 are uninformative in asserting an unspecified error in that the primary judge “misapplied the law” in concluding that none of the imputations were made out; misconstruction of the matters complained of by reference to identified “extrinsic factors” that included the membership application; and asserted error in failing to conclude that the words “non accredited” had a specific meaning to an ordinary reasonable reader such as “non accredited by the government”. Ground 4 asserts error in the conclusion of the primary judge that the pleaded imputations were “strained” but fails to elucidate the meaning the appellant contends for. Ground 6 is a generalised contention that the primary judge failed to give proper weight to certain evidence and in doing so overlooked or “unduly minimised” evidence that is said to be relevant to “reputational damage”.

53    These grounds are so poorly drawn as to warrant the criticism that this Court made of the appeal grounds in SunshineLoans, where Perram, Bromwich and Colvin JJ at [131] – [132] observed:

Many of the grounds were unfocussed in the sense that they alleged error at a high level of generality. In most instances they did no more than identify a contention that had been rejected by the primary judge. Universally, the “grounds” failed to identify the paragraphs in the reasons of the primary judge where the alleged error in reasoning was said to have occurred. In almost all cases, the grounds failed to articulate what it was said the primary judge should have found. In consequence, the grounds of appeal were little more than a list of many of the arguments that had been advanced unsuccessfully before the primary judge. They failed to engage in any real sense with the reasons for decision of the primary judge. They manifested a fundamental misunderstanding of the nature of the right of appeal from a single judge of the Court conferred by the Federal Court of Australia Act. They provided no focus for the appeal.

Appeal grounds should not include argument. Nor should they take the form of broad statements of the contentions that will be advanced on appeal. They must identify the nature of the error in the reasoning of the primary judge (pointing to where the error occurred) and state what should have been done by the primary judge, noting that the error may take the form of a failure to address a point of significance (see, for example, Cush v Dillon [2011] HCA 30; (2011) 243 CLR 298).

54    The appellant’s written submissions are heavy with quotations of principle from numerous cases, which tends to obscure what aspects of the reasoning of the primary judge or his conclusions are wrong. In oral submissions some clarity was provided.

55    The point of ground 1 is that having correctly summarised the principles that apply in the approach to the natural and ordinary meaning of words in defamatory publications at PJ [84], the principles were misapplied because his Honour considered what the words conveyed to him. The complaint focuses on the first sentence at PJ [85] and ignores the entirety of the paragraph and the six that follow. There is no doubt (and no complaint) that the primary judge at PJ [84] correctly understood the general principles that apply to determine the meaning of defamatory publications. His Honour summarised the principles as stated by White J in Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652; (2015) 237 FCR 33 at [63] – [73]. There is repeated evidence in that summary that the task is to determine the meaning that the ordinary reasonable reader would understand to be conveyed. Then at PJ [85], the primary judge found:

I am not satisfied that the 30 June Email conveys any of the imputations alleged by ASA. The imputations alleged do not arise from the text used when read in context. The 30 June Email was Mr Libke’s response to Mr Brennan’s application for membership of AICLA. Fairly read, it was Mr Libke’s response to his assessment of Mr Brennan’s application in which he sought further information from Mr Brennan. The imputations alleged by ASA are strained, forced and do not reflect the natural and ordinary meaning of the words used in the 30 June Email.

56    There is no merit in the appellant’s submission that “I am not satisfied” reveals error. His Honour was plainly aware that the assessment is undertaken by reference to what an ordinary reasonable reader would understand by the words of the publication; in particular the distinction between literal and inferred meanings, inferences and conclusions and the need to consider the publication in context and in its entirety. The expression of his Honour’s overall conclusion at PJ [85] is plainly to the effect that his Honour was not satisfied that the ordinary reasonable reader would understand the email to convey the imputations pleaded by the appellant.

57    Ground 2 was abandoned during oral submissions, when the Court pointed out that the primary judge did not erroneously consider extrinsic facts as the pleaded case at [6] of the Statement of Claim was one of true innuendo, arising from the attribution of knowledge of extrinsic facts to the ordinary reasonable reader: Lewis v Daily Telegraph Ltd [1964] AC 234 at 271 – 272.

58    Ground 3 is perfunctorily addressed as error by the primary judge in failing to conclude that the words “non accredited” would have had a specific meaning such as non-accredited by the government. No such imputation was pleaded.

59    The submission in support of ground 4 is unhelpfully framed as a contention that the primary judge erred in failing to find that the email did not convey any of the pleaded imputations. The argument goes no further than the submissions put under ground 1, and this ground fails for the same reasons.

60    Ground 5 moves into the territory of the s 18 ACL claim and contends error by the primary judge in failing to recognise that the reference to the appellant’s course being “non-accredited” was ambiguous and therefore likely to mislead or deceive. The drafting of the ground adds some flesh to that skeletal contention:

In context, the statement was capable of conveying a misleading representation that the appellant’s diploma course lacked any legitimate accreditation or recognition, when in fact it was simply not accredited by the respondent AICLA for its membership purposes.

61    The written submissions do not take the contention any further, other than by reference to a summary of the well-known principles for determining whether conduct is misleading or deceptive as stated by Griffiths J in National Roads and Motorists’ Association Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 1491; (2019) 291 IR 28 at [157].

62    At PJ [93] – [96], the primary judge found that this aspect of the claim failed at the first hurdle because he was not satisfied that the appellant had established that the representations were made. The pleaded case was simply that the email made the representations which was said to be misleading or deceptive because they conveyed that the appellant’s diploma course was “not-accredited”. The primary judge at PJ [94] correctly observed that the appellant had failed to articulate that as a sustainable representation arising out of the email. At PJ [95] the primary judge explained why:

As already noted above, the 30 June Email did not make a generalised statement that ASA’s course was “non-accredited”. Mr Libke’s comment was specifically that ASA’s course was non-accredited for the purposes of AICLA’s membership requirements. In addition, for the reasons provided above, no representation was made by Mr Libke that ASA’s course was inferior to that of AICLA (or more accurately, ANZIIF), and no representation was made as to the exemption requirements for AICLA membership. Further, there is no evidentiary basis to allege that Mr Libke’s purpose of sending the 30 June Email was to cause damage to ASA’s standing and reputation, and to induce Mr Brennan into pursuing the course offered by ANZIIF.

63    His Honour’s reasoning is unimpeachable. The appellant failed to establish the meaning contended for by the impugned conduct, which is the third necessary element to the statutory claim: Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd [2023] HCA 8; (2023) 277 CLR 186 at [80]. Moreover, the ground and the submissions fail to grapple with the fact that the representations were not made to the public, but to two persons skilled in the industry. Whether the representations were objectively misleading required identification of the characteristics of those persons as explained by Edelman J in Australian Competition and Consumer Commission v Valve Corporation (No 3) [2016] FCA 196; (2016) 337 ALR 647 at [219]:

[W]here the conduct is directed to a single person ...attention must be directed to the relationship between the two persons, the context in which the statement is made, the reasonably known characteristics of the recipient of the statement, and the effect on a reasonable person in the position of the recipient of the statement.

64    No attempt was made in the appellant’s case to articulate how the reference to a “non-accredited Diploma course” was objectively likely to mislead persons with the known characteristics of David Brennan and David Cambridge and in the circumstances of assessment of the application for membership of the Institute into falsely believing that the appellant’s course was an inferior one. Reasonable persons with that knowledge would have understood the reference to be not accredited in accordance with the admission requirements of the Institute.

65    Ground 6 is obscure. As drafted it contends error by failing to give proper weight to the evidence of Michael Evans and Nell Robertson on the reputational harm issue. Ultimately, it was abandoned in oral submissions.

66    The appeal must be dismissed with costs.

Associate:

Dated:    6 March 2026