FEDERAL COURT OF AUSTRALIA

Seidler v University of New South Wales (No 2) [2011] FCA 1326

THE COURT ORDERS THAT:

1.    The interlocutory application filed by the applicant on 1 November 2011 be dismissed with costs.

2.    The interlocutory application filed by the applicant on 3 November 2011 be dismissed with costs.

3.    The interlocutory application filed by the applicant on 19 October 2011 for orders pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth) be dismissed with costs.

4.    The interlocutory application filed by the applicant on 14 November 2011 be dismissed with costs.

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

THE COURT ORDERS THAT:

1.    The interlocutory application filed by the applicant on 1 November 2011 be dismissed with costs.

2.    The interlocutory application filed by the applicant on 3 November 2011 be dismissed with costs.

3.    The interlocutory application filed by the applicant on 19 October 2011 for orders pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth) be dismissed with costs.

4.    The interlocutory application filed by the applicant on 14 November 2011 be dismissed with costs.

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

THE COURT ORDERS THAT:

1.    The interlocutory application filed by the applicant on 1 November 2011 be dismissed with costs.

2.    The interlocutory application filed by the applicant on 19 October 2011 for orders pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth) be dismissed with costs.

3.    The interlocutory application filed by the applicant on 14 November 2011 be dismissed with costs.

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

THE COURT ORDERS THAT:

1.    The interlocutory application filed by the applicant on 1 November 2011 be dismissed with costs.

2.    The interlocutory application filed by the applicant on 19 October 2011 for orders pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth) be dismissed with costs.

3.    The interlocutory application filed by the applicant on 14 November 2011 be dismissed with costs.

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

REASONS FOR JUDGMENT

1    In proceedings NSD 893 of 2011, which are proceedings for leave to appeal from orders made by Cowdroy J, and in proceedings NSD 1298 of 2011, which are similar proceedings for leave to appeal from orders made by Flick J, the applicant Ms Seidler has applied by interlocutory applications, both dated 3 November 2011, for orders that I should disqualify myself from dealing with these matters.

2    On 6 October 2011, I disposed of both applications for leave to appeal by dismissing them: Seidler v University of New South Wales [2011] FCA 1156 (the ‘previous judgment’). That might be thought, in the first instance, to give rise to a question as to what there remains from which I might sensibly be asked to disqualify myself.

3    The answer to that flows from Order 4 of the orders I made on 6 October 2011, wherein I stood the matter over to today to consider whether the Court should, of its own motion, exercise the powers under the Federal Court Rules to prevent Ms Seidler from commencing any further proceedings in this Court without the leave of the Court first being obtained. Amongst a very large number of matters which are before the Court this morning there is that question and I apprehend that the applications which Ms Seidler has filed relate, in substance, to that.

4    Additionally, I think it should be noted that there are a series of other applications which are also returnable before me this morning and to which the recusal application might also sensibly be seen as incidental. These include applications in NSD 893 of 2011 and NSD 1298 of 2011 that the Court should prevent Bartier Perry, the firm of solicitors who appears for the respondents, from further appearing; an application in NSD 24 of 2011, which was the proceeding at first instance before Cowdroy J, that Bartier Perry should be prevented from acting; an application in proceedings NSD 527 of 2011, which was the proceeding before Flick J at first instance, that Bartier Perry be prevented from further acting; applications pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth) in NSD 893, 1298, 24 and 527 of 2011; and a series of additional applications also filed yesterday in NSD 893, 1298, 24 and 527 of 2011, to which it will be necessary to return in due course. All of those matters had been made returnable before me this morning and it is sensible to assume that Ms Seidler’s disqualification application should be seen as relating to those as well.

5    The principles upon which a judicial officer should disqualify himself or herself are set out clearly in the High Court’s decision in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. In that case the majority, Gleeson CJ, McHugh, Gummow and Hayne JJ, said this (at 345 [7]-[8]):

7.    The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.

8.    The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires 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.

6    Ms Seidler makes a number of submissions as to why I should disqualify myself. I did not apprehend in her argument that she distinguished between an allegation of actual bias or apprehended bias, but I will treat the application as having been made on both bases.

7    First, Ms Seidler is dissatisfied with the manner in which on the prior occasion I dealt with her applications for s 50 orders. I was disinclined to entertain them. I do not accept that my mere refusal to entertain an application constitutes something which by itself could be an example of a matter giving rise to disqualification.

8    The second point was that in my previous judgment at [7] I mis-described the disorder from which she was suffering and had said that she was suffering from an ‘adjustment disorder’. Leaving aside the question as to whether I was right or wrong about that, I do not accept that that is a matter which would give rise to a reasonable apprehension of bias. Ms Seidler also submitted, as a third matter, that she had concerns that there would be substantial injustice because I did not understand the matter and I did not understand the nature of her condition. She further submitted that she had put a large number of ‘filings’ before Stone J and that it was unreasonable to expect her to be pursuing all of these matters before various judges. She submitted that I did not understand the medical aspects of her claims; that I had not read the pleadings; and that I had not granted her the adjournments she had sought on the previous occasion. Ms Seidler also said that she was not comfortable and that she thought that it was inhumane what was taking place.

9    Taking all of that together, I do not accept that that gives rise to a reasonable apprehension of bias on my part. Ms Seidler is a very difficult litigant to deal with. She constantly interrupts during argument and has conducted herself in a manner which is not conducive to the orderly disposition of court business. Notwithstanding the inflammatory way she approaches matters, I do not accept that I am disqualified from dealing with this matter, and I dismiss Ms Seidler’s recusal applications in relation to myself in NSD 893 of 2011 and NSD 1298 of 2011, that is, the recusal applications filed on 3 November 2011 in each of those matters.

10    In NSD 893 of 2011 and NSD 1298 of 2011, Ms Seidler also applies for an order that the matters be listed before Jacobson J. Orally, she pursued the point that it would be preferable for them to be listed before Stone J. I see no reason why these matters should be listed before those judges. They are presently on my docket and it is convenient that one judicial officer have the carriage of all of these matters. I therefore dismiss those applications. The result of that will be that the interlocutory applications filed on 3 November 2011 in NSD 893 of 2011 and NSD 1298 of 2011 will be dismissed.

In each of proceedings NSD 893 of 2011, proceedings NSD 1298 of 2011, proceedings NSD 24 of 2011 and proceedings NSD 527 of 2011, Ms Seidler has filed applications dated 1 November 2011. The applications are, in substance, in the same form. Prayers 1, 2, 3 and 4 seek orders which in various ways would restrain a number of individuals and law firms, but principally the firm acting for the respondents, Bartier Perry, from acting in the present proceedings. The present proceedings comprehend all those proceedings at first instance before Flick and Cowdroy JJ and also the applications for leave to appeal which are before me.

11    The basis upon which Ms Seidler seeks to restrain Bartier Perry from acting in the proceedings is threefold. First, she contends that it has a conflict of interest arising from the fact that Bartier Perry is retained by the University of New South Wales; the fact that the University of New South Wales also retained another firm, Griffin Hilditch; and the fact that Griffin Hilditch is connected with Carroll & O’Dea in relation to the sum of $15,000 which was referred to in passing in my previous judgment at [6].

12    The second basis upon which it was sought to prevent Bartier Perry acting was that it had been served by Carroll & O’Dea, Ms Seidler’s former solicitors, with a report by a medical practitioner which had been served contrary to Ms Seidler’s instructions. I apprehended from that that what was sought, in effect, was to vindicate some claim in respect of confidential information. The third basis upon which Ms Seidler sought to restrain Bartier Perry was that she had post-traumatic stress disorder (‘PTSD’); that she had a right not to be exposed to triggering events which would inflame or exacerbate that condition; and, that one of those triggering events was the presence of Bartier Perry.

13    There are, so it seems to me, insuperable difficulties with this claim. To begin with, whilst it is possible to prevent a legal practitioner from acting in proceedings, the manner in which this is done is the usual manner by which the solicitor in question is joined in a separate proceeding as a defendant and an injunction sought to restrain him or her. It is not possible to restrain a practitioner from acting simply by way of an interlocutory application because, of course, it would not be possible to enforce obedience to that order. It might be possible in an appropriate case to seek an order that a party to a proceeding not use a particular firm of solicitors, but I did not apprehend the present application to be of that kind. Quite apart from the formal difficulty, there is, of course, the matter to which Mr Mattson, who appeared for the respondents, referred, and that is the absence of any evidence upon which this Court might act in considering the claims which arise. Those two matters are, so it seems to me, sufficient to dispose of the present application and, accordingly, I dismiss prayers 1, 2, 3 and 4 of the applications filed on 1 November 2011 in proceedings NSD 893, 1298, 24 and 527 of 2011.

14    I also dismiss prayer 5, which seeks to have various matters listed before Stone J for reasons given above, prayer 6 which seeks suppression and anonymisation of Ms Seidler’s name for reasons discussed below and prayer 7 which deals with an application in relation to discovery. Prayer 8 seeks an order that the matter be listed before Jacobson J which I also decline for the reasons I have previously given.

15    Prayer 8.2 relates to a suggested direction that all applications in relation to confidentiality and suppression orders be dealt with by Stone J, which I decline to make on case management principles. Prayer 8.3 seeks an order that these proceedings be transferred to Jacobson J, which I likewise decline on the same basis. Prayer 9 seeks my recusal which I decline for the reasons which I have already given, and prayer 10 seeks that I determine those matters in chambers, which I also decline. The consequence is that I will dismiss each of the applications filed on 1 November 2011 in NSD 893, 1298, 24 and 527 of 2011 in their entirety.

16    In proceedings NSD 893, 1298, 24 and 527 of 2011, Ms Seidler has filed applications for orders under s 50 of the Federal Court of Australia Act on 19 October 2011. She is content that I dismiss those applications which I do.

17    The order I will make in relation to the applications filed on 14 November 2011 in NSD 893, 1298, 24 and 527 of 2011 (which seeks orders in the same terms as each of the previous applications discussed above) is that those applications be dismissed.

18    I order the applicant to pay the respondents’ costs in each of the applications to which I have referred this morning; that is, the applications for recusal in NSD 893 of 2011 and NSD 1298 of 2011; the applications to prevent Bartier Perry from acting in NSD 893, 1298, 24 and 527 of 2011; and each of the applications for s 50 orders filed on, respectively, 19 October 2011 and 14 November 2011, in NSD 893, 1298, 24 and 527 of 2011. I will order each of the applications be dismissed with costs.

Associate:

Dated:    15 November 2011