Federal Court of Australia

Scott v Scott (Recusal Application) [2026] FCAFC 124

ORDERS

THE COURT ORDERS THAT:

1.    Order 2 of the Appellant's interlocutory application dated 28 June 2026 (and accepted for filing on 7 July 2026) (recusal application) be dismissed.

2.    Costs of the recusal application hearing be reserved.

3.    On or before 4:30pm on 4 September 2026, the Appellant is to file and serve written submissions limited to the issue of the relevance of the decisions in HBSY Pty Ltd v Lewis (2024) 283 CLR 231 and Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306, such submissions to be no longer than 10 pages, and a list of authorities.

4.    On or before 4:30pm on 11 September 2026, or 7 days after receipt of the Appellant's written submissions referred to in order 3 above (whichever is the later), the Respondents are to file and serve any written submissions in reply, such submissions to be no longer than 10 pages.

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

REASONS FOR JUDGMENT

Delivered ex tempore, revised from transcript

VANDONGEN J:

1    At the commencement of the hearing of this appeal, the appellant, Dr Susan Scott, made an application that Needham J recuse herself. That application followed Dr Scott's earlier and separate application that Needham J recuse herself from case managing these proceedings, which application was dismissed by her Honour on 21 July 2026: Scott v Scott (Recusal Application) [2026] FCA 1022.

2    In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15, the members of the High Court expressed different views about who should hear a recusal application when it concerns one of the judges who is to sit as a member of an appellate bench. In that regard, Gordon J (at [94] to [98]), Edelman J (at [108], and [131] to [135]) and Steward J (at [193]) said that where objection is made to the jurisdiction of a multi‑member court because of apprehended bias, the preferable course is for the judge in question to first determine whether to recuse themselves. If the judge decides not to recuse themselves after providing notice of the material facts or circumstances to the other judges, and an application based on apprehended bias is maintained, or the other judges are concerned that there are matters that may give rise to a potential for apprehended bias, the coram must determine the issue.

3    On the other hand, Kiefel CJ and Gageler J expressed the view at [26] to [35] that the question of apprehended bias should be considered by all members of the court and not the judge the subject of the application alone, and Jagot J concluded at [316] that an application for recusal should be determined by the judge alone. However, Gleeson J formed the view at [271] that it was unnecessary to express an opinion about the practice of multi-member judicial panels faced with an application for disqualification of one of its members and therefore said that she preferred not to address that issue.

4    In my view, it was necessary to deal with Dr Scott's recusal application made at the commencement of the hearing of her appeal in a manner that was consistent with what was said in the separate reasons of Gordon, Edelman and Steward JJ in QYFM.

5    After Dr Scott made her application that Needham J recuse herself from hearing and determining the appeal, the Court adjourned so that her Honour could separately hear and determine that application.

6    After Needham J dismissed Dr Scott's application and provided notice of the material facts or circumstances giving rise to that application to the other judges, the Full Court, constituted by Needham J, Wheately J, and I, reconvened. When Dr Scott was then asked whether her objection to Needham J continuing to sit on the appeal was maintained, she said that it was. It then became necessary for me to reach an independent conclusion about whether Needham J should recuse herself on the ground of apprehended bias. If a majority of the Court were to decide that Needham J should be recused, the Court would then not have jurisdiction to make any orders.

7    The test that must be applied where an application for recusal is made based on apprehended bias is well established. A judge is disqualified for apprehended bias 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' (footnotes omitted): Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]. See also Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at [11].

8    As was recently outlined in SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2026] HCA 8 at [1] (Gageler CJ and Gleeson J), [60] (Gordon J), [105] (Edelman J), [126] (Steward J), [130] (Jagot J), and [173] (Beech-Jones J), the approach to be taken to the application of that test involves three steps, namely:

(1)    the identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits;

(2)    the articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and

(3)    an assessment of the reasonableness of that apprehension from the perspective of a fair‑minded lay observer.

9    Dealing with each of those steps in turn.

What is the factor Dr Scott says might lead Needham J to resolve the questions raised in these proceedings other than on their legal and factual merits?

10    It has been difficult to identify the relevant factor on which Dr Scott relies in support of her application that Needham J recuse herself. Unfortunately, Dr Scott's oral submissions were pitched at a very high level of generality. However, when asked to specify the documents upon which she wished to rely in support of her application, Dr Scott drew the Court's attention to six documents in an appeal book she had unsuccessfully sought to file some days before the hearing of the appeal. That 'appeal book' was marked for identification as 'MFI 1'.

11    The documents to which Dr Scott referred were:

(1)    an interlocutory application to disqualify Needham J dated 28 June 2026;

(2)    an 'affidavit' of Dr Scott dated 28 June 2026;

(3)    the orders made in Scott v Scott (Recusal Application);

(4)    an 'unsworn affidavit' of Dr Scott dated 30 July 2026;

(5)    an interlocutory application dated 10 May 2026 in which Dr Scott sought an order under r 3.04 of the Federal Court Rules 2011 (Cth) in respect of a decision made by Judicial Registrar Donovan on 8 May 2026 to refuse to accept certain documents for filing; and

(6)    an affidavit sworn by Dr Scott on 18 May 2026 in support of the interlocutory application referred to at subpara (5).

12    The reference in these documents to a decision made by Judicial Registrar Donovan on 8 May 2026 was to a decision not to accept three other documents for filing, which Dr Scott had attempted to file on 17 March 2026. Those documents, which Dr Scott evidently sought be filed in these proceedings were:

(1)    An originating process dated 13 March 2026 and entitled 'Urgent Application to Docket/Duty Judge', in which Dr Scott made several largely incoherent statements and claims, including statements and claims about various judges and registrars of this Court.

(2)    A Form 59, which is a form for affidavits as prescribed by the Federal Court Rules, but which was entitled 'Written Submission', and which was over 200 pages in length. That document included an interlocutory application dated 2 March 2026 by which Dr Scott sought orders under r 3.04 of the Federal Court Rules in relation to decisions made by Judicial Registrar Birchall on 20 February 2026 and Judicial Registrar Haag on 23 February 2026.

(3)    A certificate of urgency in support of listing before a duty judge.

13    It is unnecessary to say anything further about those documents. However, while Dr Scott appears to have proceeded on the basis that it was Judicial Registrar Donovan who made the decision not to accept for filing the documents to which I have just referred, having regard to a letter dated 8 May 2026 that the Registrar sent to Dr Scott, it is apparent that the decision was in fact made by a duty judge. To understand why that decision was made it is necessary to provide some context.

14    When Dr Scott first commenced these proceedings, she filed an interlocutory application in which she sought a stay of the orders appealed from. When programming that interlocutory application for hearing on 10 November 2025 McDonald J made several orders, including orders that the parties file written submissions and any evidence on which they wished to rely in support of that application. His Honour also made an order that the parties were not to file any further documents in these proceedings without the leave of the Court. Judicial Registrar Donovan's letter of 8 May 2026 suggests that a duty judge decided not to grant Dr Scott leave to file the three documents to which I have already referred at [13] of these reasons as was required by the order made by McDonald J.

15    Against that background, having regard to Dr Scott's oral submissions and based on the documents that she indicated to the Court set out what she relies on in support of her recusal application, it appears to me that the relevant factor that is the focus of the application that Needham J recuse herself is on a decision that was made by her Honour on 18 June 2026.

16    As I have already said, by an interlocutory application dated 10 May 2026 and a supporting affidavit sworn 18 May 2026, Dr Scott sought an order under r 3.04 of the Federal Court Rules (Application).

17    Rule 3.04 provides that:

A person may apply to the Court without notice for an order that a Registrar do any act or thing that the Registrar is required or entitled to do but has refused to do.

18    By the Application what Dr Scott sought was for an order to be made by a judge that required Judicial Registrar Donovan to accept the originating process and supporting affidavit that she unsuccessfully attempted to file on 17 March 2026.

19    On or about 18 June 2026, Needham J decided that the documents comprising the Application were not to be accepted for filing. That decision was communicated to Dr Scott by an email sent by the New South Wales registry on 18 June 2026. In that email it was said that:

[a]fter a referral to the Chambers of Justice Needham, her Honour has advised these documents are not to be accepted for filing.

20    That email was referred to in a footnote in 'MFI 1'. For context, the whole of the email chain of which that email formed part was marked as exhibit 1. That email chain demonstrates that on 11 May 2026, Dr Scott sought to file the interlocutory application dated 10 May 2026 and supporting affidavit to which I have already referred at [12] of these reasons.

21    In those circumstances, and based on the documents on which she relies, it may be concluded that the essence of Dr Scott's complaint, and the factor that she says might lead Needham J to resolve the questions raised in these proceedings other than on their legal and factual merits, is that her Honour erroneously decided that the documents comprising the Application should not be accepted for filing. As I understand it, Dr Scott says that her Honour erroneously exercised administrative and not judicial power in effectively disposing of the Application.

22    Having identified, as best as I can, the factor upon which Dr Scott relies on as one that might lead Needham J to resolve the questions raised in these proceedings other than on their legal and factual merits, the next question to be determined is whether there is a logical connection between that factor and the apprehended deviation.

Is there a logical connection between the identified factor and an apprehended deviation from deciding the questions raised in this appeal on their merits?

23    In my view, even if it were to be assumed, in Dr Scott's favour, that Needham J was wrong to conclude that the documents comprising the Application should not be accepted for filing, that does not supply any logical connection with an apprehended deviation from deciding the questions arising in this appeal on their merits. It is illogical to suggest that her Honour might decide the questions arising in this appeal other than on their merits merely because she has already made, as Dr Scott alleges, an erroneous decision that was adverse to Dr Scott.

From the perspective of a fair‑minded lay observer is the apprehension reasonable?

24    Having reached the conclusion that there is no logical connection between the relevant factor on which Dr Scott relies and the apprehended deviation of Needham J from deciding the questions raised in these proceedings other than on their legal and factual merits, this question can be addressed in short order. The lack of any relevant logical connection of itself demonstrates that there can be no reasonable apprehension of bias from the perspective of a fair-minded lay observer.

Conclusion

25    In my view, a fair‑minded lay observer would not reasonably apprehend that Needham J might not bring an impartial mind to the resolution of the questions she is required to decide in this appeal. Accordingly, I reject Dr Scott's contention that her Honour should recuse herself from hearing and determining this appeal as a member of the coram.

26    In her oral submissions, Dr Scott appeared to contend, on occasions, that Needham J should recuse herself because her Honour was affected by actual bias. In that regard, Dr Scott appeared to suggest from time to time that there were suspicious circumstances attending upon her Honour's decision that the documents comprising the Application should not be accepted for filing. An unparticularised and completely unsubstantiated suggestion of that nature should not have been made and, to the extent that it may have been relied upon by Dr Scott, I reject it.

Associate:    

Dated:    7 September 2026

27    

REASONS FOR JUDGMENT

Delivered ex tempore, revised from transcript

WHEATLEY J:

1    The Appellant, Dr Scott, filed an interlocutory application seeking that Justice Needham recuse herself from the case management of this appeal and from the hearing of the appeal. Justice Needham dealt with the first aspect of that application regarding case management on 21 July 2026 in Scott v Scott (Recusal Application) [2026] FCA 1022 (the Judgment).

28    There is not one set of universally applicable procedures for the hearing of a recusal application before a Full Court where the application is only against one member of the coram; however, generally, it is appropriate for the judge the subject of the recusal application to hear that application first and independently. If that application is dismissed but then maintained to the Full Court, the Full Court must then satisfy itself that there is no apprehension of bias, as that is a matter which goes to the Court’s jurisdiction: see QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15 at [26] - [27] of Kiefel CJ and Gageler J in dissent, and at [66], [92], [94] and [102] - [104] of Gordon J at [109], [138] and [191] of Edelman J, and [193] of Steward J.

29    Applying these principles, Justice Needham first heard and determined the recusal application on her own, at the commencement of the hearing of the appeal. The Full Court resumed, whereby the recusal application was maintained by Dr Scott to the Full Court. As such, argument was heard and the matter was stood down overnight for the Full Court and each member of the coram separately and independently to consider those arguments. Dr Scott relied on filed written submissions dated 7 July and 30 July 2026, as well as another document described as submissions dated 25 August 2026 which had been incorporated into Dr Scott’s version of the appeal book, which was provided in four parts and marked as “MFI-1” (Dr Scott’s appeal book).

30    Dr Scott’s appeal book is voluminous and incorporated documents which related not only to her application to recuse Justice Needham but also to the substantive appeal; however, the Court’s attention was directed to those parts of Dr Scott’s appeal book upon which she relied for the recusal application. Those being documents that were numbered and described in the index as follows:

(a)    document 49, which is the interlocutory application seeking recusal dated 28 June 2026, which was ultimately filed on 7 July 2026;

(b)    document 50, which is described as “affidavit of Susan Jane Scott 28 June 2026 of disqualification of J Needham to case manage and hear appeal, sworn on” – with the date as “to be sworn”;

(c)    document 51, which is the Judgment;

(d)    document 52, which is described as “affidavit of Susan Jane Scott, matters of full bench appeal SAD206/2025 30 June 2026, sworn on” with the date “to be sworn”; and

(e)    documents which were referred to and coloured in orange in the index in Dr Scott’s appeal book.

31    This last document (coloured in orange in the index) was the interlocutory application and affidavit referred to below, which were rejected for filing.

32    Although document 50 is described in the index as recorded above, the document of that date provided in Dr Scott’s appeal book is headed Written Submissions, with the header of the document stating that the document is an affidavit dated 28 June 2026. This document is substantively the same as the document which is filed with the Court being written submissions of Dr Scott filed on 7 July 2026 (7 July submissions).

33    Although document 52 is described in the index as recorded above, the document of that date provided in Dr Scott’s appeal book is headed Written Submissions. This document is substantively the same as the document which is filed with the Court being written submissions of Dr Scott filed on 30 July 2026 (30 July submissions).

34    Dr Scott also made oral submissions in support of her recusal application, at the hearing. At times, those oral submissions were difficult to understand, confused and confusing, in terms of the recusal application and generally. Dr Scott commenced her substantive submissions with observations effectively highlighting the fundamental importance of the rule of law, judicial independence and the administration of justice. Of course, such matters can be accepted.

35    When Dr Scott’s oral submissions are understood with reference to her 7 July submissions and the 30 July submissions, her argument identifying what it is said might lead the judge to decide this case other than on its legal and factual merits becomes somewhat clearer. Those submissions were directed primarily to a refusal to accept documents for filing. This was described by Dr Scott as an administrative direction to a Registrar by Justice Needham not to accept certain documents for filing. Those documents which were in Dr Scott’s appeal book, coloured orange in the index, were an application pursuant to r 3.04 of the Federal Court Rules 2011 (Cth) in relation to a Registrar’s decision of 8 May 2026 and an affidavit in support. A copy of these documents are also contained in Dr Scott’s appeal book. Dr Scott’s submission was that the application sought to be made pursuant to r 3.04 of the Rules was one which required the exercise of judicial power, not administrative power. Furthermore, the antecedent step of whether these documents should be accepted for filing was also one, Dr Scott submitted, which required the exercise of judicial power, not administrative power.

36    Dr Scott advances different motives for this position against Justice Needham. These were not supported by any evidence. However, as the submission, in my view, is advanced only on the basis of an apprehension of bias and not actual bias, there is no need to make an assessment of the state of mind in question: see Quach v MLC Limited [2022] FCAFC 202 at [96] - [97] (Collier, Perry and Thomas JJ). As such, it is unnecessary to consider any suggested motives further.

Relevant Principles

37    The applicable principles in relation to apprehended bias are well settled. In Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29, Kiefel CJ, Gaegler, Keane, Gordon and Gleeson JJ at [11], with references, including Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at 345, said:

The apprehension of bias principle is that “a judge is disqualified 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”. The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, “it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits”; and, secondly, there must be articulated a “logical connection” between that matter and the feared departure from the judge deciding the case on its merits.

[footnotes omitted]

38    Their Honours continued at [12], stating:

As five judges of this Court said in Johnson v Johnson, while the fair-minded lay observer “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”.

[footnotes omitted]

39    To those observations must be added those of Mason J in Re JRL ex parte CJL (1986) 161 CLR 342; [1986] HCA 39 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”… Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

[footnotes omitted, emphasis added]

40    In summary statements of the principle to be applied, a third step has been included, being an assessment of whether any asserted apprehension of bias is reasonable or is followed by an ultimate evaluative process: see Director of Public Prosecutions (NSW) v TH, Director of Public Prosecutions (NSW) v MB, Director of Public Prosecutions (NSW) v Sharp [2026] NSWCCA 125 at [10] (Leeming, Stern JJA and Griffiths AJA). Also see SunshineLoans Pty Ltd v Australian Securities and Investments Commission (2026) 428 ALR 575; [2026] HCA 8 at [60] (Gordon J), [105] (Edelman J) and [173] (Beech-Jones J).

41    Ultimately, the assessment requires a reasonable consideration of first, the identification of what it is said might lead to a judge to decide a case other than on its legal and factual merits, and second, there must be articulated a logical connection between that matter and the feared departure from the judge deciding the case on its merits.

Is there an apprehension of bias?

42    To understand the submission properly it is necessary to describe some of the history of this matter. Dr Scott filed this appeal on 12 August 2025. It is an appeal from the orders of Bampton J in the South Australia Supreme Court, made on 29 July 2025. On the same day as filing the appeal, Dr Scott also filed an interlocutory application seeking a stay of the orders of Bampton J until the substantive appeal was decided (the Stay Application).

43    McDonald J case managed and determined the Stay Application. On 10 November 2025, McDonald J made timetabling orders for the Stay Application to be heard on the papers and ordered the parties not file further documents in these proceedings without leave of the Court. On 25 November 2025 in Scott v Scott [2025] FCA 1449, McDonald J dismissed the Stay Application.

44    On 16 December 2025, Moshinsky J made orders regarding an application for leave to appeal and specifically granted the appellant leave to file certain documents (it is unnecessary to set these out).

45    On 23 December 2025, Moshinsky J made further orders which contained substantive notes regarding the history of the proceedings. Again, it is unnecessary to set out those orders in full; however, it can be observed that leave was granted both to Dr Scott and the other parties to file certain material in accordance with those orders.

46    Dr Scott’s interlocutory application and affidavit in support, purportedly pursuant to the orders of Moshinsky J on 23 December 2025, was accepted for filing on 24 December 2025 (having been lodged on 18 December 2026). Leave was granted in accordance with McDonald J’s orders for the other parties to file material on that application. The application was referred to a judge. That application was dismissed on 2 February 2026: Scott v Scott (No 2) [2026] FCA 103.

47    On 25 May 2026, the Full Court made timetabling orders in the appeal for the draft index to the appeal book and once approved, the filing of that index, submissions and for the matter to be listed for case management before Justice Needham on 10 July 2026. Further orders were made varying the 25 May orders on 21 July and 31 July 2026. The parties have each filed some material in accordance with those orders and some material not strictly in accordance with those orders.

48    During this period, on 13 March 2026, Dr Scott sought to file certain documents being a Form 2 originating process dated 13 March 2026, an affidavit of same date and an amended certificate of urgency. A Registrar advised on 8 May 2026 that those documents had been referred to the Duty Judge who did not grant leave in accordance with McDonald J’s order for the filing of those documents.

49    That document from the Registrar of 8 May 2026 is contained in Dr Scott’s appeal book. It is these documents to which Dr Scott’s further application pursuant to rule 3.04 of the Rules related.

50    On 18 June 2026, Dr Scott was relevantly advised by way of an email which became exhibit 1, the substance of which is referred to in footnote 4 of the 7 July submissions, that:

I note that after a referral to the Chambers of Justice Needham, her Honour has advised these documents are not to be accepted for filing.

51    It is this refusal that those documents were not to be accepted for filing which is the underlying basis of Dr Scott’s submission that there is an apprehension of bias. Given the submission, it is also worth considering the terms of r 3.04 of the Rules which states:

Applications for orders in relation to Registrars

A person may apply to the court without notice for an order that a registrar do any act or thing that the registrar is required or entitled to do but has refused to do.

Note: Without notice is defined in the Dictionary.

52    Horan J has described this rule in Sayed v Salvation Army Housing [2023] FCA 1298 at [34] - [35]. Further, Wheelahan J in Luck v Principal Registrar and Chief Executive Officer of the Federal Court of Australia (Permanent Stay) [2024] FCA 1256 has also made observations regarding r 3.04 at [24] and [33]. Having regard to those observations of that rule by each of Horan and Wheelahan JJ, I accept that there is a distinction to be drawn between the administrative decision of a Registrar when deciding to accept or reject documents for filing and then when a judge is called upon to review that decision of a Registrar including by way of an application of r 3.04 of the Rules. Furthermore, there is also a difference when a judge directs the Registrar not to accept documents for filing.

53    Dr Scott’s submission was that Justice Needham was acting administratively when the “direction” of 18 June 2026 (contained in exhibit 1) was made that the application under r 3.04 be refused for filing. This, so the submission continued, was in circumstances where the power to be exercised by Justice Needham was a judicial power. It is this exercise of administrative power without reasons and, by implication, being unreviewable which Dr Scott submits were against her legal rights and leads to an apprehension of bias.

54    It is not necessary on an application such as this to determine whether or not Justice Needham was correct or incorrect to refuse the filing of the documents the subject of the 18 June 2026 email, being exhibit 1. Neither is it necessary to determine whether the process by which those documents were refused was correct or incorrect; that is, whether the process undertaken was an administrative process but should have been a judicial one. The apprehension of bias is one that goes to jurisdiction and must be considered on that basis: see QYFM at [26] - [27] of Kiefel CJ and Gageler J in dissent, and at [66], [92], [94] and [102] - [104] of Gordon J at [109], [138] and [191] of Edelman J, and [193] of Steward J.

55    For the purposes of determining and considering the submission that there is an apprehension of bias, I will assume without deciding the most favourable circumstance to Dr Scott; that is, that Justice Needham was incorrect to refuse the filing of the documents on 18 June 2026 and was also incorrect to do so administratively.

56    It is this assumed error in approach in exercising administrative power rather than judicial power to which Dr Scott submits that a fair-minded observer might reasonably apprehend that Justice Needham might not bring an impartial mind to the merits of this appeal. This seems to be advanced by Dr Scott on the basis that because Justice Needham acted in this way, her Honour has demonstrated by exercising this administrative power, she will not decide the matter on the substantive appeal, being the appeal from Bampton J, on its legal and factual merits.

57    That Justice Needham or a judge makes a particular decision (administrative or otherwise), even incorrectly, does not convey any preliminary views on the merits of the appeal proceeding. It is not unusual for judges to make decisions in proceedings, say, on an interlocutory basis, which are overturned on appeal. The matter would usually, in this Court, return to that docket judge for the continuation of the proceedings. If such a decision (judgment) is overturned on appeal, it would usually be regarded as incorrect. There is no logical connection between the assumed incorrect administrative refusal to file documents and any apprehended deviation or departure by Justice Needham from deciding this appeal on its merits.

58    Furthermore, there is no logical connection between the assumed incorrect use of administrative power as opposed to judicial power with respect to the refusal to file documents and any apprehended deviation or departure by Justice Needham from deciding this appeal according to its legal and factual merits. This is sufficient to dispense with Dr Scott’s recusal application.

59    In these circumstances, I have formed a view that Justice Needham should not recuse herself on the basis of apprehended bias and I would dismiss that part of the interlocutory application filed 7 July 2026.

Associate:    

Dated:    7 September 2026

REASONS FOR JUDGMENT

Delivered ex tempore, revised from transcript

NEEDHAM J:

60    I have not had the benefit of reviewing the reasons of Vandongen or Wheatley JJ before they were delivered; this is the appropriate approach taking into account what was said by the plurality of the High Court in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148 (see, in particular, Gordon J at [102], Edelman J at [191] and [192]). I maintain the position that I took in the ex tempore reasons I gave yesterday on the application by Dr Scott on which I sat individually. The application for my recusal should be dismissed.

Associate:    

Dated:    7 September 2026