FEDERAL COURT OF AUSTRALIA

Picos v Hyatt Hotel Canberra (No 2) [2015] FCA 262

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application dated 17 February 2015 be dismissed, with costs.

2.    The applicant’s interlocutory application dated 27 February 2015 be dismissed.

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

REASONS FOR JUDGMENT

1    There are two interlocutory applications before the Court, each filed by the applicant.

2    The first interlocutory application, dated 17 February 2015, seeks an order that I be “disqualified for bias”. The second interlocutory application, dated 27 February 2015, seeks, in substance, an order that the Registrar accept for filing an interlocutory application in which the applicant seeks orders concerning the winding up of Tropical Almond Development (PTC) Ltd (Tropical Almond Development).

3    When the first interlocutory application and the second interlocutory application were called on for hearing, the applicant did not appear. Notwithstanding the applicant’s non-appearance, the respondent submitted that I should at least proceed to deal with the first interlocutory application on its merits, rather than simply dismiss it for want of prosecution. I will accede to that submission. I will also deal with the second interlocutory application on its merits.

The first interlocutory application – disqualification for bias

4    The first interlocutory application is supported by an affidavit affirmed by the applicant on 18 February 2015. I have treated the affidavit as having been read, subject to the rejection of paragraphs 3(g) and 4(b)(v) on the grounds of relevance. In addition, each of those paragraphs comprises, or contains in part, unsubstantiated allegations of an inflammatory nature which should be rejected on grounds of form, as well as relevance.

5    It is also possible that the applicant seeks to support the claimed relief by an affidavit affirmed by her on 23 February 2015. This affidavit makes statements about Tropical Almond Development and annexes, amongst other things, a statement filed with the Australian Securities and Investments Commission verifying financial statements for Tropical Almond Development for the year ended 31 December 2013.

6    The applicant has also filed written submissions entitled “Applicant’s Fourth Legal Submissions”. The written submissions deal with the first interlocutory application and the second interlocutory application.

Background matters

7    The applicant commenced this proceeding by filing an originating application under the Australian Human Rights Commission Act 1986 (Cth) on 12 January 2015. In that application, the applicant seeks relief based on alleged unlawful discrimination under the Sex Discrimination Act 1984 (Cth). The matter was docketed to me for first directions at 9.30 am on 2 February 2015.

8    Further, on 16 January 2015, the applicant lodged for filing an interlocutory application in which she sought an order that the notice of address for service filed by the respondent be struck out (strike out application). That interlocutory application was accepted for filing on 21 January 2015.

9    By email dated 20 January 2015, which was marked for the attention of my Associate, the respondent’s solicitors requested an adjournment of the directions hearing to 5 February 2015. Relevantly, the email stated:

We act for the Respondent in the above matter. The Applicant has been copied into this email.

This matter has been set down for a First Directions Hearing on Monday 2 February 2015 at 9.30am.

Our firm is currently committed to a conference in a proceeding in the ACT Magistrates Court involving the Applicant on 2 February 2015 at 10.00am, which was set down on 22 December 2014.

We note for His Honour’s information that a number of matters involving the same Applicant are listed before Justice Perry on Thursday 5 February 2015 at 10.15am (NSD 741 of 2014, NSD 766 of 2014, NSD 767 of 2014, NSD 785 of 2014 and NSD 1179 of 2014). We act for the Second and Third respondents in NSD 1179 of 2014, and confirm that Counsel briefed for all Respondents except for the Eighth Respondent in that proceeding is also briefed for the Respondent in NSD 23 of 2015. We note that all of those proceedings are brought by the Applicant under the Sex Discrimination Act 1984.

Subject to any questions His Honour may have, we write to respectfully seek an adjournment of the directions hearing in NSD 23 of 2015 on 2 February 2015 to 5 February 2015, on the basis that it would be an efficient use of the courts time, and a cost saving for both parties, for the matter to be listed at the same time as the aforementioned proceedings. We confirm we have proposed this adjournment to the Applicant, who has not consented.

10    On the same day, approximately four minutes after the solicitors’ email was sent, the applicant sent an email to the Registry. The effect of the email was that the applicant objected to the course proposed by the respondent. In that email, the applicant said:

I trust that the Court will deal with the email … according to law.

11    I acceded to the respondent’s request. On 21 January 2015, I made the following orders:

1.     The directions hearing appointed for 2 February 2015 be vacated.

2.    The proceeding be listed for directions before Perry J at 10.15 am on 5 February 2015.

3.    The applicant’s interlocutory application dated 16 January 2015 be listed before Perry J at 10.15 am on 5 February 2015 for directions only.

12    The matter came on for directions before Perry J on 5 February 2015, at which time her Honour made the following order:

1.     The interlocutory applications filed by the applicant and respondent be listed for hearing and the substantive matter be listed for directions before Yates J at 10.15 am on 19 February 2015.

13    The appointed hearing date was a date agreed to by both parties, prior to her Honour making the order.

14    These events relate to one of the bases for the applicant’s application for my disqualification on the ground of bias.

15    The strike out application was called on for hearing on 19 February 2015, as appointed. The applicant did not appear. I dealt with the applicant’s interlocutory application on its merits, and dismissed it with costs: Picos v Hyatt Hotel Canberra [2015] FCA 101 (my first reasons). At [15] of my first reasons, I expressed the following conclusion:

15.    … I am not satisfied that the applicant has established that the notice of address, as filed, is “fraudulent”. Indeed, to be clear, on the evidence before me, any suggestion by the applicant that the respondent or its solicitors have acted fraudulently in filing the notice of address is baseless. Further, the balance of the claims to relief in the interlocutory application, which are dependent on the allegation of fraud, cannot be supported and are, in any event, misconceived as to the nature and scope of relief that the Court would make on the application of a party to a proceeding.

16    My treatment of this interlocutory application is relevant to another basis on which the applicant seeks my disqualification for bias.

Consideration

17    The written submissions make clear that the relief sought is based on actual bias. The applicant says that she “alleges real bias”. It would seem from the applicant’s affidavits and the written submissions that the form of bias alleged is prejudgment. Three matters emerge from the applicant’s affidavits and the written submissions. I will deal with each in turn.

18    First, the applicant submitted that the first interlocutory application was filed before giving judgment in respect of her strike out application. The applicant submitted:

His Honour completely ignored the application and out and out lied by doing so.

19    The strike out application was filed on 21 January 2015, listed for directions on 5 February 2015 and, on that day, with the agreement of the applicant and the respondent, listed for hearing before me on 19 February 2015.

20    On 15 February 2015, the applicant sought to file the first interlocutory application. It was rejected on the basis that it was not supported by an affidavit.

21    Subsequently, on 18 February 2015, the applicant lodged the first interlocutory application for filing with an affidavit in support. This was the day before the appointed hearing date for the strike out application. The first interlocutory application was accepted for filing on 19 February 2015, that is, on the day of the hearing of the strike out application. On filing, the first interlocutory application was given a hearing date, namely 6 March 2015, which was the first available day on which I could hear the matter.

22    The first interlocutory application was not ignored. It was processed promptly and, on filing, given a hearing date. As I have noted, it was received for filing on the day before the hearing of the strike out application. As I have also noted, the date for hearing the strike out application was one agreed to by the parties. I do not understand the applicant’s submission that I “lied” by “ignoring” the first interlocutory application. I am unable to see how these events manifest, let alone establish, actual bias on my part.

23    Secondly, the applicant referred to the making of orders in chambers (see [11] above) on the basis of the email correspondence I have quoted at [9]-[10] above, providing for the listing of the proceeding for directions before Perry J on 5 February 2015, including for directions in relation to the strike out application.

24    The applicant has not sought to explain how these events manifest actual bias on my part. In her written submissions, the applicant submitted:

The Applicant is not accepting this. His Honour is hereby on Notice that the Applicant wishes to prosecute torture, crimes against humanity and crimes against her personally in an international forum of which his Honour is not immune.

25    My reliance on the email correspondence submitted by both parties, and the making of orders on 21 January 2015 vacating the directions hearing on 2 February 2015 and listing the proceeding for directions before Perry J on 5 February 2015, although contrary to the wishes of the applicant, does not manifest or establish actual bias on my part. The orders made on 21 January 2015 were entirely procedural in nature. They merely shifted the directions hearing from 2 February 2015 to 5 February 2015. Considerations of efficiency, as outlined in the respondent’s solicitors’ email, plainly commended this course, particularly in the absence of any reason advanced by the applicant for not doing so, apart from her disagreement.

26    Thirdly, the applicant pointed to certain findings on my part when dealing with her strike out application. In her written submissions, the applicant submitted that I “lie[d]” about the applicant in my first reasons. The applicant drew attention to [9], [11] and [14] of my first reasons, in which I made certain findings based on the evidence before the Court. The applicant disagrees with those findings. These are the “lies” to which she apparently refers.

27    In this connection, the applicant submitted:

His Honour was so biased on 19 February 2015 that his Honour ignored the Applicant’s submission and evidence that the evidence of [a principal of the respondent’s solicitors] was false. His Honour has already marked the Applicant and made inherent credibility findings.

28    I pause to note that I have made no credibility findings against the applicant.

29    The applicant also submitted:

His Honour is so biased that he treated the Applicant as an invisible, dumb and worthless person.

30    In her written submissions, the applicant also complained about my use of the word “aroused” in the context of human rights and sexual harassment proceedings. This complaint was directed to [12] of my first reasons, in which the word “aroused” was used in the first sentence:

12    The applicant’s concern seems to have been aroused by the fact that she has conducted a search of the Australian Business Register. The search parameters are not apparent from the evidence. However, the search revealed the trading name “Hyatt Hotel Canberra” in connection with a particular Australian Business Number and that the entity holding the business number is “The trustee for Viewgrand Trust E”. It is not clear to me why the applicant conducted this search and not a search for a registered business name. Had she conducted a search for a registered business name using the search term “Hyatt Hotel Canberra”, I have little doubt that, by reasonable efforts, she would have found “The Hyatt Hotel Canberra” with Tropical Almond Development as the holder of that business name.

(Emphasis added.)

31    Plainly, in that sentence, I was referring to the applicant’s concerns that the party she had sued was not the party who had appeared.

32    In [16] of my first reasons, I also recorded the fact that the applicant elected not to appear at the hearing of her strike out application. In that paragraph I said:

16    Before departing from this application I should record that the applicant, for her own reasons, elected not to appear at the hearing of the interlocutory application. One course open to the Court was simply to dismiss the application for want of prosecution after the application was called on for hearing. I nevertheless decided that I should deal with the application as a matter of substance, particularly in light of the serious allegation the applicant has made concerning the respondent’s solicitors’ conduct which, in the circumstances, should not stand uncorrected.

33    The applicant submitted:

His Honour is clearly biased as the Respondent has not filed any defence. It is the Respondent who has failed to diligently defend the matter. The Respondent is in default. If his Honour were not so very biased against the Applicant, his Honour would enter default judgment against the Respondent. The Applicant is not playing games and is not tolerating it …

34    The respondent is not in default of any orders or directions made by the Court. No orders or directions have been made for the filing of a defence. Indeed, no statement of claim has been filed.

35    I will not seek to summarise, explain or justify my first reasons. In my view, there is nothing in them which manifests or establishes actual bias on my part in the form of prejudgment, or in any other possible way.

Conclusion

36    None of the matters raised by the applicant, considered individually or cumulatively, establish actual bias. Accordingly, the first interlocutory application fails. It will be dismissed with costs.

37    For completeness I should add that none of the matters raised by the applicant, considered individually or cumulatively, would even establish a case of apprehended bias according to the test referred to by the High Court in Livesey v New South Wales Bar Association (1983) 151 CLR 288; Johnson v Johnson (2000) 201 CLR 488; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Smits v Roach (2006) 227 CLR 423; Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283; and Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427.

The second interlocutory application

38    I have treated the second interlocutory application as seeking, firstly, relief pursuant to r 3.04 of the Federal Court Rules 2011 (Cth) (FCR).

39    As I have noted, the second interlocutory application seeks, in substance, an order that the Registrar accept for filing an interlocutory application in which the applicant seeks orders concerning the winding up of Tropical Almond Development.

40    The second interlocutory application refers to an “interlocutory application of 23 February 2015 seeking an order for a declaration and an order for an interim injunction” in relation to that matter. I believe that the applicant is intending to refer to an interlocutory application dated 24 February 2015 in which the following orders are sought, ostensibly as “interlocutory orders”:

1.    A declaration that Tropical Almond Development (Ptc) Ltd is to be wound up.

2.    An interim injunction requiring Tropical Almond Development (Ptc) Ltd, or its legal representative, apply to the Court, to be wound up, immediately.

41    The second interlocutory application should be dismissed for a number of reasons.

42    First, the relief sought in the interlocutory application dated 24 February 2015 is not relief that the Court would grant; that is to say, the Court would not grant a declaration that Tropical Almond Development be wound up or grant an injunction, interim or otherwise, requiring Tropical Almond Development or its legal representative to apply to the Court to be wound up. For this reason alone, the interlocutory application is incompetent on its face and should not be accepted for filing.

43    Secondly, any order for the winding up of Tropical Almond Development would be a proceeding in the Court under the Corporations Act 2001 (Cth) (Corporations Act) and would be governed by the Federal Court (Corporations) Rules 2000 (FCCR). In my view, it is not appropriate for an order in relation to the winding up of Tropical Almond Development to be sought by way of an interlocutory application filed in this proceeding. Any application for the winding up of Tropical Almond Development, properly brought, must be commenced by filing an originating process and must otherwise comply with the Corporations Act and the FCCR. In the present case, the correct process has not been used.

44    Thirdly, the provision or provisions of the Corporations Act on which the applicant relies and her standing to seek any relief concerning the winding up of Tropical Almond Development are not apparent. Any application for the winding up of Tropical Almond Development in respect of which the applicant does not have standing, would be incompetent. Where a lack of standing is apparent on the face of the process sought to be filed, it should not be accepted for filing in the absence of some material demonstrating an arguable basis for standing.

45    For these reasons, the interlocutory application dated 24 February 2015 should not be filed.

46    The second interlocutory application also seeks relief that the Court review the exercise of power by one of its Deputy District Registrars to reject three other interlocutory applications, each dated 24 February 2015 (although, in the second interlocutory application, they are referred to “interlocutory applications of 23 February 2015 in this proceeding”). Each of these interlocutory applications claims relief concerning, in general terms, the winding up of Tropical Almond Development. The specific relief claimed, in each case, is not relief that the Court would grant. Each interlocutory application is also in the incorrect form. Once again, in each case, the standing of the applicant is not clear. The Deputy District Registrar was correct to reject, for filing, each interlocutory application.

47    It follows that the second interlocutory application must be dismissed.

Disposition

48    Orders will be made accordingly.

A further matter

49    After the first interlocutory application and the second interlocutory application were called on for hearing, the respondent advanced a submission that there was material before the Court that raised the possibility that the applicant is a person under a legal incapacity. The respondent referred in particular to the content of the written submissions. The respondent submitted that the Court should, of its own motion, direct the parties to appear before it with a view to determining whether, on the basis of the applicant’s conduct in this proceeding to date, an order should be made under r 9.63 FCR appointing a litigation representative for the applicant. The respondent referred me to Murphy v Doman (2003) 58 NSWLR 51.

50    I do not propose to accede to that invitation. In my view, the appropriate course, in the present case, is for the respondent itself to apply (should it wish to do so) under r 9.63 FCR for the appointment of a litigation representative, if it considers that there are proper grounds for that course.

Associate:

Dated:    25 March 2015