FEDERAL COURT OF AUSTRALIA

Minus v Selth [2016] FCA 834

ORDERS

THE COURT ORDERS THAT:

1.    The application dated 27 June 2016 be dismissed.

2.    Unless a party notifies in writing the Court by 4:00pm on Monday 25 July 2016, indicating opposition to this order as to costs, the first, second and third applicants pay the respondents costs of the application, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

1    This is an application under r 35.14 of the Federal Court Rules 2011 (Cth) (Federal Court Rules) for an extension of time to seek leave to appeal, and leave to appeal under r 35.11, from interlocutory judgments and orders. Mr Derek Michael Minus, Dispute Resolution Associates Pty Ltd and AUSTBAR Pty Ltd (applicants) want to appeal from an interlocutory judgment delivered on 22 December 2015 by a single judge of the Court (interlocutory judgment) and the interlocutory orders (interlocutory orders) made by the same judge on 21 March 2016 in the proceedings relating to matters NSD 975 of 2014 and NSD 1019 of 2014 (primary proceedings), and possibly, as indicated below, other orders. The application is supported by the affidavit of Mr Minus sworn on 24 June 2016 (supporting affidavit). The primary proceedings were heard in February 2016 and judgment in the primary proceedings is currently reserved.

2    The applicants also apply for a stay of the primary proceedings and execution of any orders made in those proceedings until the determination of the leave to appeal application. Since I would decline to grant an extension of time for leave to appeal, and leave to appeal, there can be no basis for the stay application and it is unnecessary to consider it further.

3    Mr Minus, who has been in practice as a barrister for over 25 years, represented himself and the other applicants. Mr Ross Macaw QC, with Mr Michael O’Meara, appeared for the respondents.

4    The background to these proceedings is set out in [5]-[72] of the reasons for interlocutory judgment: see Selth v Australasian Barrister Chambers Pty Limited [2015] FCA 1494. In broad terms, in the primary proceedings NSD 975 of 2014, Mr Philip Selth sues in a representative capacity for the members of an unincorporated association, “The Australian Bar Association” (ABAU), and the ABA Australian Bar Association Ltd (ABA Ltd), for alleged trademark infringements (including in respect of the use of two domain names) by the applicants and Australasian Barrister Chambers Pty Limited (in liquidation), as well as alleged misleading or deceptive representations to consumers under the Australian Consumer Law. In parallel proceedings NSD 1019 of 2014, the New South Wales Bar Association is also a represented applicant. Amongst other things, the applicants (respondents in the primary proceedings) contest the title and capacity of ABAU and ABA Ltd to assert proprietorship over the marks.

5    I note that, on 8 December 2015, Australasian Barrister Chambers Pty Limited was ordered to be wound up under the Corporations Act 2001 (Cth) and the Court subsequently granted leave under s 471B of the Corporations Act 2001 (Cth) to proceed against the company in the principal proceeding. The solicitors for the liquidator, Mr David Sampson, have filed a notice in the primary proceedings by which the liquidator submits to any order the Court might make, subject to being heard on the question of costs. The liquidator has been informed of the current application.

6    Both the applicants and the respondents filed short written submissions. In brief, the applicants submitted in written submissions that the conduct of the matter by the docket and trial judge (the judge) raised important questions of procedural fairness and apprehension of bias by members of the judiciary who continue to be connected with the Australian Bar Association and the New South Wales Bar Association. The respondents submitted in written submissions that the application should be dismissed, because “[n]one of the orders from which leave to appeal is sought is arguably attended by sufficient doubt to justify a grant of leave and no substantial injustice has been occasioned to the applicants”. The respondents further submitted that there had been no adequate explanation for the delay in bringing the application for leave to appeal; and that the current application offended the overarching purpose of s 37M of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act).

Recusal APPLICATION

7    At the commencement of the hearing on 21 July 2016, Mr Minus applied for me to recuse myself from hearing the application, on the basis of my prior membership of the Victorian Bar, the New South Wales Bar Association and the Australian Bar Association. The following are my reasons for declining to do so.

8    The application was perhaps prefigured in a letter dated 27 June 2016 and addressed to the Registrar, in which Mr Minus asked that the current application be dealt with by the Chief Justice or a judicial officer of the Court “who has not previously been a member of the Respondent organisations or had a relationship with or support from either the Australian Bar Association and/or the New South Wales Bar Association”. The matter of the application was allocated to me during my leave in early July. On my return to Chambers, my Associate sent a letter to the parties informing them that I had been a member of both bodies prior to becoming a judge in 1997.

9    Mr Minus relied on numerous authorities in support of his application, including Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 (Livesey), Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 (Webb), Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner) and Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 (Isbester). He submitted that I should rule myself disqualified by interest, in the sense that I had some “direct or indirect interest in the proceedings, whether pecuniary or otherwise, giv[ing] rise to a reasonable apprehension of prejudice, partiality or prejugment”: Webb at 74. He also submitted that I should rule myself disqualified by association, in the sense that “the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings”: Webb at 74. Mr Minus drew attention to the fact that the applicants in the primary proceeding were, in substance, ABAU and ABA Ltd, as well as the New South Wales Bar Association. With considerable courtesy, Mr Minus submitted that “the profession of barristers is a very closed and small group who are known to themselves [and] may be assumed to travel a fixed path through the profession of barrister ... to the bench and then after their time on the bench when they reach retirement back into the profession in private practice”, at which time they “might expect a continuation of support”. Mr Minus also submitted that “because of [my] long association with the Australian Bar Association as a barrister, with the New South Wales Bar Association, which is a constituent body of the Australian Bar Association [and] with the Victorian Bar Association, [I] may be persuaded [by this] association”; and that “members of the public may see [me], with a past association with both of those organisations, sitting ... on a matter where they have claimed commercial interests” as possibly not deciding the application on its factual and legal merits.

10    The test for apprehended bias is relatively well-settled. It is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the Court might not bring a fair, impartial and independent mind to the determination of the matter on its merits: see ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 (ALA15) at [35], citing R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, Livesey, Ebner, Concrete Pty Limited v Parramatta Design and Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577, and British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283. As stated in ALA15 at [36], other relevant principles are:

(a)    at least the following two steps are involved in a case involving an allegation of apprehended bias:

(i)    there must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and

(ii)    tthere must be an articulation of the logical connection between the matter and the feared deviation from a course of    deciding a case on its merits (Ebner at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ);

(b)    an allegation of bias against a judge on the basis of prejudgment is a serious matter not the least because it carries with it the suggestion that the judge has failed to honour his or her judicial oath as such might be questioned by the fair-minded observer. As is also the case where such an allegation is made against an administrative officer, the allegation must be “distinctly made and clearly proved” (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (Jia Legeng) at [69] per Gleeson CJ and     Gummow J); and

(c)    as noted above, the test assumes that the hypothetical fair-minded lay observer is to be attributed with appropriate knowledge of relevant matters so as to be in a position to make a reasonably informed assessment of the likelihood of apprehended bias (see, for example, Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [13] per Gleeson CJ, Gaudron, McHugh and Gummow and Hayne JJ and at [53] per Kirby J; British American Tobacco at [47]-[48] per French CJ and at [144] per Heydon, Kiefel and Bell JJ and Isbester v Knox City Council [2015] HCA 20 at [23] per Kiefel, Bell, Keane and Nettle JJ and at [57] per Gageler J).

11    It does not seem to me that a fair-minded and appropriately informed lay observer might reasonably apprehend that the Court, as presently constituted, might not bring a fair, impartial and independent mind to the determination of this matter on its merits, because of an occupational relationship that ended almost 20 years ago. I am also not persuaded that such an observer might hold a reasonable apprehension of bias by reason of a future, highly speculative, possibility that the Court, as constituted, might, on retirement, renew such a relationship very nearly 30 years after it had ended. Accepting that Mr Minus made his submission with some diffidence, it does not seem to me that he was able to formulate the logical connection between the matter of the application for an extension of time and for leave to appeal and feared deviation from a course of deciding the matter on its factual and legal merits. Accordingly, I did not recuse myself from hearing the application.

consideration

12    As already noted, the applicants seek to challenge an interlocutory judgment and orders. Pursuant to s 24(1A) of the Federal Court Act, an appeal cannot be brought from an interlocutory judgment or interlocutory orders without the leave of this Court. There are settled principles to be applied in determining whether or not leave to appeal should be granted: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (Décor Corporation) at 398-400; and Re CSR Ltd [2010] FCAFC 34; (2010) 183 FCR 358 at [5]. Before leave to appeal will be given, an applicant for leave must show that, in all the circumstances, the relevant interlocutory order or judgment was attended with sufficient doubt to warrant its being reconsidered by an appellate court and that substantial injustice would result if leave were refused, supposing the decision to be wrong: see Décor Corporation at 399.

13    Furthermore, a person seeking leave to appeal from an interlocutory judgment or order of the Court must apply within 14 days after the date on which the judgment was pronounced or the order was made: see r 35.13 of the Federal Court Rules. An extension may be granted under r 35.14 of the Federal Court Rules in accordance with the accepted principles: see s 37M of the Federal Court Act, Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 at 480-481 and Mentink v Minister for Home Affairs [2013] FCAFC 113 (Mentink) at [33]-[38]. The applicants in this case clearly require an extension of time in which to seek leave to appeal.

14    The outcome of an extension of time application will always depend on the particular circumstances of the case: see, for example, Mentink at [33]-[38]. Relevant considerations include: (1) the merits of the proposed application for leave to appeal to justify the extension of time; (2) whether there is an adequate explanation for the delay; and (3) any undue prejudice to a respondent if the Court were to extend time.

15    Plainly the factors relevant to the question of whether to extend time in which to apply for leave to appeal overlap with the factors relevant to whether leave to appeal should be granted. The following discussion focusses on the question of an extension of time. It will be seen, however, that the reasons leading me to dismiss that aspect of the applicants’ application would, so far as they relate to the first and second limbs of the test for leave to appeal, lead me to dismiss the remainder of the application, seeking leave to appeal.

the judge’s recusal decision on 18 december 2015

16    The applicants seek an extension of time to seek leave to appeal from the interlocutory judgment of the judge in proceeding NSD 975 of 2014, in which his Honour dismissed an application for discovery and made associated orders. It is clear, however, from their present application and the supporting affidavit that the applicants do not challenge the judgment and orders made by his Honour regarding discovery. Rather, the applicants wish to challenge his Honour’s prior refusal to recuse himself.

17    A recusal application was heard by the judge on the same day as the discovery application and considered briefly in the reasons for the interlocutory judgment of 22 December 2015. His Honour set out the background to the recusal application as follows:

[105]    On 16 December 2015, I sent a letter to the legal representatives a copy of which is Attachment A to these reasons. In that letter I said that in 2014 the Bar Association of Queensland extended an invitation to me to become a member of that Association in a category described as “Associate Member (Special Judicial)”. I observed that the Association did so, no doubt, because I had delivered lectures in the legal education program conducted by that Association as I have for the Law Council of Australia and the TC Beirne School of Law at the University of Queensland (among other bodies). I said that from my perspective, the virtue of accepting such membership was that it enabled me to receive notifications of matters the Association regarded as relevant for distribution to its own active and practising professional members. I observed that as a result, I was an Associate Member (Special Judicial) of that Association from 11 July 2014 to 30 June 2015 although the membership lapsed at 30 June 2015. I also observed that as the parties may well know, I have never been an active member or a member at all, of that Association as that was not my professional background in the law.

[106]    On 17 December 2015 at 11.23am AEST, my Associate received an email from Mr Minus in which he said:

I am instructed to make an application that His Honour recuse himself, to be heard at the next available hearing.

[107]    The matter was listed for the hearing of the discovery application on 18 December 2015 and I directed that I would address the recusal application on that day. The recusal application was heard before the discovery application was heard.

18    At the hearing on 18 December 2015, the applicants submitted that the judge had a direct or indirect relationship with a person or person interested in or otherwise involved in the proceedings due to his Honour’s membership of the Bar Association of Queensland in the period 11 July 2014 to 30 June 2015. The Bar Association of Queensland was said to be a constituent body of the ABAU and one of the members of the ABA Ltd.

19    In rejecting these submissions, the judge applied the test set out by the High Court in Ebner at [8], and concluded that there was no proper articulation of a logical connection between his Honour’s membership of the Bar Association of Queensland and feared deviation from the course of deciding the case on the merits. His Honour explained:

[114]    The articulation of the logical connection between the contended association and the feared deviation from deciding the proceeding on the merits is said to be that I have an “interest” in the sense that, upon retirement, I might seek to form a further association with the Bar Association of Queensland in the expectation of receiving a benefit. The second feature of the logical connection is that in the letter I identify that the virtue of accepting membership was that it enabled me to receive notifications of matters the Association considered relevant for distribution to its own active participating professional members.

[115]    Mr Minus observed that he was not aware of whether I had been paid for giving lectures in the Bar Association’s continuing legal education program. I observed in the course of oral argument that I had not been paid for those lectures and, as a matter of principle, they were given as part of the education processes for the profession in the same vein as the lectures I had given to the Law Council of Australia, the University of Queensland, Griffith University and other institutional bodies who have an interest in ensuring that members of the profession reach informed views about things because they continue to be educated in an informed way.

[116]    I do not accept that there is any proper articulation of a logical connection between my membership of the Bar Association of Queensland in the period 11 July 2014 to 30 June 2015 and feared deviation from the course of deciding the case on the merits in the sense contemplated by their Honours in Ebner.

20    At the hearing on 18 December 2015, the applicants also submitted that the judge engaged in differential treatment of the parties during the course of two directions hearings on 11 November 2015 and 20 November 2015 and that this gave rise to an apprehension of bias. His Honour rejected this submission, concluding, on the principles in Ebner, there was no conduct at those hearings that would give rise to a conclusion of apprehended bias. In particular, his Honour said:

[118]    There was debate at the first review of the matter (after I became the Docket Judge) on 11 November 2015 about whether the matter could sensibly be set down for a hearing in the second week of December. A question arose about the filing by the respondents of an amended defence. Another question arose about categories of documents about which the respondents would seek discovery. General questions of readiness arose. All of the evidence had been put on and the question of discovery was arising late in the day. Moreover, the respondents had not put contentions as to discoverable documents to the other side.

[119]    At the directions hearing on 20 November 2015 which was listed in order to deal with the state of the issues between the parties on discovery in light of a letter Mr Minus was to send and in respect of which there was to be a reply, it emerged that Mr Minus had not sent a letter to the applicants setting out the position of the respondents as to the documents sought, until 7.00am on the morning of the directions hearing.

[120]    That seemed to me to be unreasonable.

[121]    Nevertheless, I do not accept that there is any differential conduct which would give rise to a conclusion of apprehended bias in the sense contended for by Mr Minus and the third and fourth respondents deriving from the principles in Ebner.

21    Accordingly, his Honour indicated that he would not recuse himself from the hearing of the matter. His Honour made no specific order on the recusal application in the interlocutory judgment of 22 December 2015, but, as observed above, proceeded to hear and make orders on the discovery application, including dismissing the interlocutory discovery application made by the respondents (the applicants in this matter). Leave to appeal can be sought against “a later interlocutory order made by a judge who has refused an application that the judge not hear the matter on account of a reasonable apprehension of bias ... on the ground that the judge who made the order should not have done so”: see Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; (2011) 244 CLR 427 (Michael Wilson) at [81]; and Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48 at 64.

22    There is, in my view, nothing in his Honour’s reasons or decision that might indicate a failure to identify the governing principles or an error in its application. No error has been shown in his Honour’s statement that there had been no proper articulation of a logical connection between his membership of the Bar Association of Queensland in the period 11 July 2014 to 30 June 2015 and feared deviation from the course of deciding the case on the legal and factual merits. The proposition that the judge’s connection to the Bar Association of Queensland and his Honour’s treatment of the parties would give rise to a reasonable apprehension of bias in a fair-minded observer is unfounded.

23    As indicated below, issues of delay and prejudice to the respondents also militate against an extension of time. Mr Minus deposed in the supporting affidavit that the applicants did not have the time or the financial resources to seek leave to appeal within the time provided in the Federal Court Rules. He referred to difficulties after 22 December 2015 because of the holiday period and the legal vacation, the demands placed on him by reason of the winding up of Australasian Barrister Chambers Pty Limited after 8 December 2015, the need to prepare for a trial listed to commence on 1 February 2016, and his particular difficulties in obtaining suitable legal representation to deal with the serious matters that arose at trial in consequence of cross-examination by Mr Macaw QC. As set out below, he further deposed as to his absence from Australia in April 2016, and to other dealings with his insurer and other agencies with a view to obtaining appropriate legal representation.

24    The applicants’ failure to seek leave to appeal from the refusal of the judge to recuse himself in December 2015 within the time stated in the Federal Court Rules occurred in circumstances where the trial had not yet commenced but where, if the point was to be pursued after trial, it might mean that the time and the cost of the trial would be wasted. In the circumstances of this case, if the applicants wished to pursue the claim that the judge was affected by apprehended bias, then they were obliged to do so in a timely way, rather than seek an extension of time for leave to appeal months after the conclusion of the trial when judgment was reserved: see Michael Wilson at [85]-[86].

25    In the circumstances of the case, Mr Minus’ explanation for the applicants’ delay is inadequate. As indicated at [34] below, Mr Minus, on his own and the other applicants’ behalf, made a practical decision, based on his understanding of what was in the applicants’ best interests, not to contest his Honour’s decision but to proceed to trial. The respondents to this application would be prejudiced if the extension of time and leave to appeal were granted, in circumstances where the indicative date for delivery of judgment has passed and the trial is completed. At the same time, I accept that, as the respondents submitted, refusal of an extension of time and leave to appeal would not place the applicants in an appreciably worse position than they now find themselves because they may still seek to agitate the issue of non-recusal in any appeal they might bring against his Honour’s judgment.

adjournment application on 21 March 2016

26    In February 2016, the judge fixed 21 March 2016 as the date for making further ‘final’ submissions following the trial of the action. On 21 March 2016 his Honour made an order in the primary proceedings dismissing the applicants’ application to adjourn the hearing of further closing submissions. The applicants seek an extension of time to seek leave to appeal from that order and leave to appeal.

27    Omitting formal parts, the orders of 21 March 2016 were in the following form in proceeding NSD 975 of 2014:

THE COURT NOTES THAT:

The trial of the action has now concluded. Notwithstanding Order 1, should the second, third and fourth respondents file and serve further written submissions by 10 May 2016 directed to the issues about which they wish to make further submissions, the Court will take those submissions into account in the determination of the issues the subject of the trial and in the event that the applicants wish to address submissions in response, the Court will take those submissions into account provided that those submissions are put on within one week of receipt of any submissions of the second, third and fourth respondents. The Court proposes to give judgment in the matter by 31 May 2016.

THE COURT ORDERS THAT:

1.    The application of the second, third and fourth respondents to adjourn the hearing of further closing submissions on 21 March 2016 is dismissed.

2.    The second, third and fourth respondents pay the costs of the applicants of the appearance on 21 March 2016.

28    Orders in substantially the same terms were made in the related proceeding NSD 1019 of 2014.

29    At the time the orders were made, the applicants’ case was that they needed additional time to gain the approval of Mr Minus' professional indemnity insurer to obtain a copy of the transcript and the assistance of senior counsel to make submissions on his behalf. Mr Minus specifically deposed that, on 21 March 2016, the judge “refused to allow [him] the time required to obtain legal support for a transcript and senior counsel representation and formally denied [him] procedural fairness by dismissing the applications to adjourn the hearing of further closing submissions”.

30    Broadly speaking, the applicants’ submission before me was that his Honour denied them procedural fairness in the conduct of the hearings because he did not allow them the time they sought to obtain legal assistance and, in particular, did not allow Mr Minus to defend himself against potentially serious allegations. In written submissions, the applicants submitted that “[t]he refusal of the Court to allow [them] time to obtain assistance to deal with the oral submissions of Senior Counsel for the applicants at the trial, leaves the Applicant for leave to Appeal, Mr Minus, potentially exposed to substantial injustice, and serious adverse findings which would impact upon his livelihood, professional reputation and standing as an experienced practitioner of 25 years”; and “could also expose Mr Minus to the potential for professional disciplinary action in circumstances where he was denied the opportunity to adequately rebut allegations put in cross-examination”. Mr Minus reiterated these submissions at the hearing on 21 July 2016.

31    On the matter of delay, as noted already, Mr Minus deposed that the applicants did not have the time or the financial resources to seek leave to appeal within the time provided in the Federal Court Rules and referred to numerous difficulties between 22 December 2015 and the end of the trial. Mr Minus deposed that he was in Japan between 5 April 2016 and 28 April 2016, on a trip with a sporting association that had been planned over 12 months before.

32    As already noted, Mr Minus deposed to his difficulties in obtaining suitable legal representation in February and March 2016 to deal with the issues arising in the course of cross-examination. He further deposed that, between 15 March 2016 and 20 May 2016, he waited for a response from the Financial Ombudsman Service (FOS) in relation to a review of his insurer’s decision with respect to obtaining counsel in the proceedings. Ultimately the FOS advised that his complaint was outside its terms of reference (as foreshadowed by his insurer’s letter to him of 10 March 2016). In consequence, Mr Minus lodged a complaint with the Australian Small Business and Family Enterprise Ombudsman (ASBFEO) on 30 May 2016; and on 22 June 2016 the ASBFEO wrote to his insurer about its decision.

33    Mr Minus submitted that the applicants had at all times proceeded expeditiously to obtain representation and assistance to deal with matters concerned with his reputation and that he should not be penalised for the difficulties he encountered. He submitted that the delay “has been accounted for by reasonable actions” and that he had “done the best [he could] within the circumstances that [he’d] found [him]self”. Mr Minus elaborated at the hearing on his difficulties in obtaining legal representation through his professional indemnity insurer, referring to his dealings with counsel that the insurer engaged who, according to Mr Minus, “without the benefit of transcript, decided not to appear on my behalf at all, not even to come to the court to advise the judge that they had been engaged by the insurer”. According to Mr Minus, counsel advised him that he “would be better served if they simply didn’t attend court at all”. Mr Minus described how he made his unsuccessful claim to the FOS and a consequent complaint to ASIC. Mr Minus submitted that the Court should “take judicial notice that there has been much criticism of FOS as an organisation in the Senate of the Australian Parliament, and calls that FOS should be replaced by a statutory body which provides protection to people who have to deal with banks and insurers”. Mr Minus concluded by describing how the ASBFEO was in fact pursuing the matter with his insurer.

34    In the course of the hearing, I asked Mr Minus why he did not challenge the judge’s decision not to recuse himself directly after his decision and before the trial. Mr Minus responded, frankly:

So your Honour says to me, “Well, why is it practically that you challenged or made an application that Greenwood J recuse himself, which he declined to do, why was it not that – why did you not then take this matter further?”. Well, your Honour, practically, I’m appearing for four respondents or was, at that stage, including myself, I had argued that two other justices recuse themselves throughout the case, which they did, I was faced with a trial that was about to begin with a month and I had to make a practical decision, Greenwood J having refused to recuse himself should I spend my time and my funds to try to mount an appeal to that or should I prepare for the trial that Greenwood J had set down to be given 1 February.

Practically, it seemed that given that Greenwood J was specially selected, as I understood somebody who did not have a history as a barrister but as a solicitor, that practically it appeared that I should focus on dealing with the trial, which was set down for a week, and preparing to represent those four bodies in that trial. After the trial was over, you may then say, again, “Well, you could have appealed it at that stage”, but my fundamental focus at that stage was that I had the opportunity – in fact, the insurer had accepted in a limited way that they would provide representation.

It seemed to me a very simple outcome that that representation be provided so that I could make those submissions.

35    It does not appear to me that the difficulties outlined by Mr Minus adequately explain why he and the other applicants did not act more promptly after 21 March 2016, either to seek leave to appeal within the requisite period, or to seek an extension of time for leave to appeal more speedily than has been done, particularly where there had been a trial of the action, with judgment reserved and an indicative delivery date of 31 May 2016: see the interlocutory orders of 21 March 2016. The fact that Mr Minus went to Japan on 5 April 2016 does not explain why he failed to make his application for leave to appeal by the due date, 4 April 2016. Nor does it explain why he failed to act immediately on his return, either to file submissions prior to 10 May 2016 or immediately to seek an extension of time for leave to appeal. As indicated at [25] above, the respondents’ interests would be prejudiced, in these circumstances, if an extension of time (and leave to appeal) were granted. Further, an extension of time would not serve the objectives mentioned in s 37M of the Federal Court Act.

36    Moreover, the applicants failed to demonstrate that there is any merit in the proposed appeal on the basis of a denial of procedural fairness. When considering an adjournment application, the court considers the interests of justice, including the competing interests of all parties, in determining, as a matter of discretion, whether the adjournment sought should be granted. Mr Minus acknowledged that the 21 March 2016 interlocutory orders took account of his trip to Japan, which he had notified to the judge. It is evident from the note preceding the substantive orders made on 21 March 2016 that his Honour gave the applicants sufficient time to make further written submissions taking into account that Mr Minus would be overseas for a period in April, and, accordingly, allowed for the possibility for further submissions to be filed by 10 May 2016. This was a period of approximately seven weeks from the making of the orders and a period of three months from the end of the trial. This was ample time for further written submissions to be made in all the circumstances. No relevant error has been shown in the judge’s exercise of discretion: see House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-5.

37    Further, it would appear that, by 21 March 2016, Mr Minus had advised the judge that the insurer had given approval to engage counsel and to obtain transcript. Annexed to the supporting affidavit was a letter from Mr Minus to the judge dated 18 March 2016, in which Mr Minus advised:

On 19 February 2016, I received a three-page letter of advice from the solicitors which in summary suggested that there was no valid claim on the insurer, however that the insurer had decided to provide limited support, such support to include, senior counsel who would be of Suncorp’s choice, and may not be of my preference.

38    This is consistent with a subsequent letter (also annexed to the supporting affidavit) from Ms Kate Carnell AO, ASBFEO, to Mr Minus’ insurer dated 22 June 2016 (a little over month after the 10 May date mentioned in the note to the interlocutory orders of 21 March 2016) in which Ms Carnell stated:

Mr Minus has informed my office that Suncorp Insurance has offered to fund legal representation to assist in court proceedings made against Mr Minus by both the New South Wales Bar Association and the Australian Bar Association. Mr Minus has raised concerns that the senior counsel offered by you to assist him is a member of the NSW Bar Association, and accordingly there may be a perceived conflict of interest. Mr Minus advises that he suggested a suitable senior counsel would be Mr Julian Burnside AO QC, of the Victorian Bar. However he advises that his suggestion was not accepted by you.

Mr Minus has also advised us that you have agreed to provide extracts of relevant court transcripts.

39    In their application dated 27 June 2016, the applicants stated that they proposed to challenge the order of 21 March 2016 on the basis that the judge’s refusal to adjourn the hearing meant that they had insufficient time to “gain the approval of [the] professional indemnity insurer to obtain a copy of the transcript and the assistance of senior counsel to make submissions on his behalf”. Acknowledging that Mr Minus was not happy with his insurer’s choice of counsel, it is plain enough that, by 21 March 2016, his request to the insurer had been met, at least in part, as the judge had been advised. This also undermines the applicants’ claim that the interlocutory orders resulted in procedural unfairness or injustice.

40    In the circumstances of the case, and having regard to these considerations, the application for an extension of time to seek leave to appeal from the interlocutory orders of 21 March 2016 should be refused.

Proposed ground 3

41    Proposed grounds of appeal 3(a) and (b) apparently indicate an intention also to seek leave to appeal from interlocutory orders on the time for filing of defences prior to trial and the conduct of cross-examination, notwithstanding that the trial of the action has concluded and judgment is reserved. When asked to explain these grounds, Mr Minus initially said that he believed that they were “wrapped up in the recusal application, because they are matters which go to that, although at a later time”.

42    In oral submissions, Mr Minus also alluded to a further recusal application towards the end of the trial on 4 February 2016, or possibly 5 February 2016 “on the basis of the cross-examination that had occurred” and in relation to the two additional matters referred to in proposed ground 3. The respondents maintained, through their senior counsel, who was not only present at the trial but also had the benefit of transcript, that there was no further recusal application on either day. Whilst I accept that Mr Minus believes that he made a further recusal application, I also accept that senior counsel for the respondents on the application has not found a reference to any such application in the transcript around this time and, having reviewed the transcript, considers that none was made. Whatever the true position, even if a further recusal application had been made towards the end of the trial, it would not alter the outcome of the present application.

43    The applicants have not shown any arguable basis to impugn the judge’s rulings on the time for filing of defences prior to trial and the conduct of cross-examination, both of which were matters of practice and procedure subject to the well-accepted constraints on the availability of an appeal: see Adam P Brown Male Fashions Pty Limited v Philip Morris Incorporated [1981] HCA 39; (1981) 148 CLR 170 at 177. Nor have the applicants indicated any arguable basis to impugn any non-recusal decision that might have been made towards the end of the trial.

44    It is possibly unnecessary to add that, as explained earlier, issues of delay and prejudice to the respondents also militate against an extension of time; and, in any event, if a recusal application were in fact made and refused towards the end of the trial, then it would be open to the applicants to seek to challenge the refusal on any appeal the applicants might bring from his Honour’s ultimate judgment.

45    For the reasons stated, I would dismiss the application for an extension of time for leave to appeal. Since there will be no extension of time, it is strictly unnecessary to consider the issue of leave to appeal. It is plain enough, however, that, having regard to my conclusions on the merits of the proposed appeal, I am of the opinion that the challenged decisions were not attended by sufficient doubt to justify appellate reconsideration. Further, for the reasons stated, I am not satisfied that that substantial injustice would result if leave were refused, supposing the decision to be wrong.

46    I note, lest it be thought I had overlooked them, that Mr Minus made submissions about the nature of the primary proceedings. The matters he raised in this connection, however, lie with the judge in those proceedings and will no doubt be reflected in his Honour’s judgment and reasons. Also at the hearing Mr Minus submitted that s 37M of the Federal Court Act did not mean that judicial case management might preclude litigants from being accorded natural justice. Citing Isbester, Mr Minus submitted that under s 37M there needs to be a balancing between the interest in moving a matter quickly through the court system and the need to accord a litigant natural justice. In this context, he outlined in some detail the difficulties he had encountered in securing what he regarded as proper representation. In determining the current application, however, it is unnecessary to explore these matters in more detail than stated in these reasons.

DISPOSITION

47    For the reasons stated, I would dismiss the application dated 27 June 2016.

Associate:

Dated:    22 July 2016