FEDERAL COURT OF AUSTRALIA

Ferdinands v The State of South Australia [2016] FCA 1268

ORDERS

THE COURT ORDERS THAT:

1.    The second applicant’s application for an order that I disqualify myself is dismissed.

2.    The title of the action be amended so as to:

(a)    remove the name of the first applicant;

(b)    name Trevor Kingsley Ferdinands as the sole applicant;

(c)    remove the name of the first respondent;

(d)    name The State of South Australia as the sole respondent.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

Introduction

Background

1    The second applicant in these proceedings (Mr Ferdinands) is an undischarged bankrupt. The name of the first applicant, as it appears on the originating application is “Kingsley Ferdinands Film Group”.

2    In an originating application said to have been filed on behalf of both of the named applicants, Mr Ferdinands alleges that he is the owner of the first-named applicant. He alleges, among other things, that the respondents have infringed copyright subsisting in a literary work authored by him but owned by the first-named applicant.

3    The trustee of Mr Ferdinands’ bankrupt estate is the Official Trustee in Bankruptcy (the Official Trustee), being the corporation sole continued in existence under s 18(1) of the Bankruptcy Act 1966 (Cth) (Act).

4    Issues arise in the proceedings as to whether there is a literary work in which copyright subsists, whether Mr Ferdinands is or was at any time the owner of the copyright and whether the first-named applicant is a legal entity capable of owning property (including intangible property in the nature of copyright) and capable of suing in its own name and right. Insofar as the first-named applicant is a legal entity, a further issue arises as to whether Mr Ferdinands is authorised to commence proceedings on its behalf. Related issues also arise as to whether any copyright, and any cause of action for infringement of the copyright, is property that is vested in the Official Trustee by virtue of the operation of s 58 of the Act.

5    On 19 May 2016 I made the following order in the proceedings (the 19 May Order):

7.    The Official Trustee in Bankruptcy represented by the Australian Financial Security Authority in its capacity as the trustee of the Second Applicant’s bankrupt estate has leave pursuant to Rule 2.32(4) of the Federal Court Rules 2011 (Cth) to inspect the affidavit of Mr Kingsley Ferdinands sworn on 29 April 2016.

6    I informed Mr Ferdinands that I would publish written reasons for making that order in due course. Those reasons are now given in [9] — [24] below.

7    There are now two interlocutory applications before me. They are:

(1)    an application by Mr Ferdinands that I disqualify myself for bias or apprehended bias;

(2)    an application by the second respondent for the following orders pursuant to r 9.08 of the Federal Court Rules 2011 (Cth) (Rules);

(a)    an order that the first applicant “Kingsley Ferdinands Film Group” be removed as a party to the proceedings;

(b)    an order that the first respondent “South Australia Police” be removed as a party to the proceedings.

8    For the reasons given in [25] — [55] below, I have determined that Mr Ferdinands’ application should be dismissed. I have allowed the second respondent’s interlocutory application for the reasons given at [56] – [71].

THE 19 MAY ORDER

9    These are my reasons for making the 19 May Order.

10    On 12 May 2016, the South Australia District Registry (Registry) received an email from Ms Crescen Alinea of the Australian Financial Security Authority for and on behalf of the Official Trustee. The email referred to these proceedings and asserted that the subject copyright is an asset of Mr Ferdinands’ bankrupt estate. In the same email, Ms Alinea made the following request:

In order for the Official Trustee to investigate Mr Ferdinands’ financial affairs in its entirety, we request the Court to provide us with a copy of his Affidavit. This request is made in accordance with section 19AA of the Act.

11    The affidavit to which the request relates was the only affidavit filed in the proceedings as at that date, being the affidavit of Trevor Kingsley Ferdinands sworn on 29 April 2016. The affidavit is stated by Mr Ferdinands to have been filed on behalf of both the first and the second applicants. It has not been read or otherwise adduced or tendered on behalf of either of those parties in the proceedings.

12    By letter dated 17 May 2016 and emailed to Mr Ferdinands on the same day, a client services officer of the Registry advised Mr Ferdinands that a request had been made by the Official Trustee to inspect the affidavit. The letter contained a further statement to the effect that if Mr Ferdinands did not consent to the affidavit being provided, the Official Trustee’s request would be referred to a judge of the Court for determination.

13    Mr Ferdinands replied by email dated 17 May 2016. The email is lengthy. I will not attempt to summarise or paraphrase it. Without being exhaustive, it contained the following relevant statements:

The trustee is out of his or her depth because I want a judgment and not money.

Everyone is entitled to privacy. The judge may make a ruling that this is a breach of privacy and not police business.

…

I say no to the trustee and no to any one [sic] else who wants to know what I am worth dead or alive.

14    At a case management hearing on 19 May 2016 I invited Mr Ferdinands to make submissions as to why I should not grant leave to the Australian Financial Security Authority for and on behalf of the Official Trustee to inspect and obtain a copy of his affidavit. Mr Ferdinands made submissions opposing the grant of leave. He acknowledged that a sequestration order had been made against him on 2 September 2013. He submitted that the affidavit was private.

15    The Official Trustee did not appear at the case management hearing.

16    Mr O’Flaherty appeared on behalf of the second respondent. He did not seek to make any submissions on the question of whether leave should be granted to a non-party to inspect the affidavit.

17    Rule 2.32 relevantly provides:

2.32 Inspection of documents

(1)    A party may inspect any document in the proceeding except:

(a)    a document for which a claim of privilege has been made:

(i)    but not decided by the Court; or

(ii)    that the Court has decided is privileged; or

(b)    a document that the Court has ordered be confidential.

(2)    A person who is not a party may inspect the following documents in a proceeding in the proper Registry:

(a)    an originating application or cross claim;

…

(c)    a pleading or particulars of a pleading or similar document;

…

(3)    However, a person who is not a party is not entitled to inspect a document that the Court has ordered:

(a)    be confidential; or

(b)    is forbidden from, or restricted from publication to, the person or a class of persons of which the person is a member.

Note:    For the prohibition of publication of evidence or of the name of a party or witness, see sections 37AF and 37AI of the Act.

(4)    A person may apply to the Court for leave to inspect a document that the person is not otherwise entitled to inspect.

(5)    A person may be given a copy of a document, except a copy of the transcript in the proceeding, if the person:

(a)     is entitled to inspect the document; and

(b)     has paid the prescribed fee.

18    These proceedings were commenced by an originating application filed on 5 May 2016. The affidavit was filed on the same day. There is no statement of claim accompanying the originating application. However, the originating application contains within it a lengthy recitation of facts by which the subsistence and ownership of copyright is asserted and by which infringement of the alleged copyright is alleged to have occurred. I do not regard the affidavit as constituting “a pleading, or particulars of a pleading or similar document” within the meaning of subr 2.32(2)(c) of the Rules. Nor does it meet the description of any other document listed in subr 2.32(2) of the Rules. Accordingly, it is not a document that the Official Trustee has any legal entitlement to inspect under the Rules without the leave of the Court. The request by the Official Trustee to obtain a copy of the affidavit is properly to be regarded as an application for leave to inspect the affidavit and to obtain a copy of it, pursuant to subr 2.32(4) and subr 2.32(5).

19    The email from Ms Alinea dated 12 May 2016 refers to s 19AA of the Act, which confers a general power on the Official Trustee to investigate a bankrupt’s conduct and examinable affairs so long as they relate to the bankruptcy. Section 19AA does not, of itself, confer any compulsory power on the Official Trustee to obtain documents.

20    Section 77C the Act confers powers on the Official Trustee to issue a notice requiring the recipient to, among other things, give information and produce books. There has been no notice of that kind served on any person within the Registry by the Official Trustee to obtain the affidavit by those means. I also note the ability of the Official Trustee to make an application to the Court pursuant to s 81 of the Act for the summons of a bankrupt person for examination, which may include a requirement that the bankrupt produce documents at the examination: s 81(1B) of the Act.

21    The mere existence of these compulsory powers does not demand the conclusion that the affidavit in issue in the present case is one that the Official Trustee is “entitled to inspect” within the meaning of r 2.32. The Official Trustee may obtain documents and information in the course of an investigation pursuant to s 19AA of the Act by means other than the exercise of compulsive powers. I am satisfied that a request for leave pursuant to subr 2.32(4) is a lawful, cost-effective and appropriate means by which the Official Trustee may obtain documents without resorting to the exercise of compulsive and invasive powers.

22    The existence of such powers may nonetheless be relevant to the exercise of the Court’s discretion as to whether leave should be granted pursuant to subr 2.32(4), particularly in cases where there is real doubt as to the interests of the Official Trustee in obtaining a document or a real dispute as to whether the Official Trustee is the trustee of the estate of a person whose interests might be affected by the grant. In those circumstances, the interests of justice might, in an appropriate case, be best served by refusing the grant of leave. In the present case, however, Mr Ferdinands did not seek to persuade the Court that the Official Trustee was not the trustee of his bankrupt estate. Rather, his submissions were to the effect that the Official Trustee had no proper interest in the subject matter of the proceedings.

23    The affidavit largely concerns Mr Ferdinands’ alleged dealings with the subject matter of these proceedings, namely the copyright alleged to subsist in a literary work (alleged by Mr Ferdinands to be owned by the first-named applicant) and the related cause of action founded in infringement of the same copyright (alleged by Mr Ferdinands to be vested in both applicants). I accept that the affidavit does contain information that might ordinarily be regarded as “private” in nature in the sense that it reveals information about Mr Ferdinands’ personal creative efforts, personal financial affairs and personal attitudes and beliefs. It also includes information about his attempts to settle or compromise the applicants’ claims. However, if the matter proceeds to trial, Mr Ferdinands would, to succeed, be required to adduce evidence of that kind relevant to any facts in issue. Upon being read, or otherwise adduced in evidence, the affidavit would then be a document to which leave would ordinarily be granted to a non-party to inspect so as to reflect the principle that justice should be administered in open court: Seven Network Ltd v News Ltd (No 9) (2005) 148 FCR 1 at [23] (Sackville J).

24    I am satisfied that the Official Trustee has a legitimate interest in obtaining a copy of the affidavit sufficient to outweigh Mr Ferdinands’ interests in maintaining his personal privacy in the document. The Official Trustee’s interest is one that may have a bearing on whether Mr Ferdinands has standing to commence or continue the proceedings in his own name as to which I do not, at this stage of the action, express any concluded view.

THE CLAIM OF APPREHENDED BIAS

Principles

25    In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, Gleeson CJ, McHugh, Gummow and Hayne JJ formulated the test to be applied on an application such as this as follows (at [6]):

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), 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. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

(footnotes omitted)

26    As to the knowledge to be attributed to the fair-minded lay observer, in Johnson v Johnson (2000) 201 CLR 488 (Johnson), Kirby J summarised the principles as follows (at [52] — [53]):

52    There is no simple answer to the foregoing questions. As is usually the case when a fiction is adopted, the law endeavours to avoid precision. The nature of the fiction involved in this instance is illustrated by the many ways in which the hypothesised bystander is described. Phrases that have been used include the ‘lay observer’, ‘fair-minded observer’ ‘fair-minded, informed lay observer’, ‘fair-minded people’, ‘reasonable or fair-minded observer’, ‘reasonable and intelligent man’, the ‘parties or the public’, a ‘reasonable person’, or (as has sometimes been favoured in England and Canada the somewhat quaint and circular phrase, a ‘right-minded’ person. Obviously, all that is involved in these formulae is a reminder to the adjudicator that, in deciding whether there is an apprehension of bias, it is necessary to consider the impression which the same facts might reasonably have upon the parties and the public. It is their confidence that must be won and maintained. The public includes groups of people who are sensitive to the possibility of judicial bias. It must be remembered that, in contemporary Australia, the fictitious bystander is not necessarily a man nor necessarily of European ethnicity or other majority traits.

53    The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.

(footnotes omitted)

27    A party applying for a judge to be disqualified for apprehended bias must clearly articulate the basis for the feared deviation from the judicial course of deciding the matter on its merits: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35]. As was explained by Flick J in Kennedy v Secretary, Department of Industry (No 2) [2016] FCA 746 (at [19]):

… A ‘judge should not recuse himself or herself from hearing a particular case without there being a proper and substantial reason for doing so’: Rana v Commonwealth of Australia [2013] FCA 189 at [36] per Mansfield J. See also: Patel v Minister for Immigration and Citizenship (No 4) [2012] FCA 1170 at [80] per Collier J. In a recent review of some of the authorities, it has been said that the ‘case law demonstrates that appeasement is not an appropriate ground for recusal’: Olowofoyeku, ‘Inappropriate Recusals’ (2016) 132 LQR 318 at 323. As noted there, on occasions acceding to an application for disqualification is only succeeded by another application to disqualify a newly allocated judge.

Submissions

28    Mr Ferdinands filed an unsworn affidavit on 18 July 2016 in which he set out a number of orders he sought in the proceedings. The orders sought included the following:

An order for the removal of the presiding judicial officer for prejudice and bias namely the refusal to make orders to progress the case in the name of justice and the interest of case management but also a special reason including racially stereotyping of the second plaintiff in a derogatory fashion asserting that his original works, creations and claims for damages have no rights in law, at least that was the impression she gave.

29    The matter came before me on the same day for the hearing of argument on the question of whether the first-named applicant was a legal entity capable of suing in its own name and right, and on the related question of whether Mr Ferdinands was authorised to act as a representative of the first-named applicant in the proceedings. As Mr Ferdinands’ application is based in part upon the things said and done in the course of the proceedings so far, it is appropriate that I refer to and extract some relevant portions of the transcript.

30    I raised the issue of disqualification with Mr Ferdinands in the following manner:

HER HONOUR:    …. In your papers, though, it appears that you also intend to make an application that I disqualify myself from presiding further in the proceedings. Do I understand your papers to include an application to that effect?

MR FERDINANDS:     Yes.    

HER HONOUR:    Very well. Well, I will take that application as having been made orally by you in the proceedings this morning, and I will otherwise dispense with the requirements of the rules that you file an application complying with the rules, and so I will hear you today on that application …

31    I asked Mr Ferdinands to state the facts upon which the application was based. He submitted that he had lodged a complaint that had yet to be dealt with by the Court. I asked Mr Ferdinands again to state facts upon which he relied in support of his application. The following exchange then occurred:

MR FERDINANDS:    I couldn’t address them this morning, your Honour. I just can’t remember them. I just could not address them.

HER HONOUR:    Can’t remember them?

MR FERDINANDS:     No. Not at all. Terribly sorry. I haven’t got the documents in front of me and I can’t – I didn’t think that I was going to ask questions on the - - -

HER HONOUR:    All right. So do you ask for this matter to be adjourned until you have an opportunity to address me on that because I have - - -

MR FERDINANDS:    Did you want me to address you on that? I would have thought you would have allowed the appeal to go ahead.

HER HONOUR:    Mr Ferdinands, I have some applications before me but I also have your application that I disqualify myself. It would be inappropriate for me to determine the applications without first hearing and determining your application that I disqualify myself. Logically, that application should be heard and determined first. Would you like more time in which to prepare materials to address me on the question of whether or not I should disqualify myself?

MR FERDINANDS:    I would prefer more time.

HER HONOUR:     Right. How much time would you like, Mr Ferdinands?

MR FERDINANDS:    I think, in fairness, it should be at least four weeks.

HER HONOUR:     Four weeks. All right.

32    Mr Ferdinands filed voluminous written submissions in support of the application. The submissions comprise:

(1)    a document titled “Submission” filed on 8 August 2016 comprising 115 pages;

(2)    a letter dated 1 September 2016 comprising five pages;

(3)    a letter dated 3 September 2016 comprising two pages.

33    Although I had reserved my judgment on the application, I permitted Mr Ferdinands to reopen argument for the purpose of putting the latter two documents before me. I have not granted Mr Ferdinands leave to rely upon any other submissions or documents. I restrict my consideration to the materials to which I have just referred.

34    The content, length and tenor of Mr Ferdinands’ submissions are a reflection, in large part, of his status as an unrepresented litigant. I say “in large part” because there is to be expected of any litigant in this Court, whether represented or not, a degree of courtesy, circumspection and respect for the processes of the Court that is noticeably absent from Mr Ferdinands’ written materials. It is difficult to discern from the materials a clear factual foundation underpinning the application that I disqualify myself. Reading the submissions generously in favour of Mr Ferdinands, I proceed on the assumption that the application is intended to be made on the following related grounds:

(1)    the test for whether a judge should disqualify himself or herself is not that of the reasonable lay-observer, but one involving an assessment of the degree of discomfort a litigant feels in appearing before the presiding judge;

(2)    Mr Ferdinands subjectively feels uncomfortable appearing before me to a degree that warrants my disqualification;

(3)    I form a part of a class of persons that is corrupt, namely, members of the judiciary residing in South Australia;

(4)    I have or appear to have racist attitudes;

(5)    I have made orders in these proceedings unjustifiably favouring the respondents without dealing promptly with the substantive merits of Mr Ferdinands’ copyright claim.

35    Mr Ferdinands’ supporting material largely contains allegation and supposition rather than depositions of objective fact. He has, in particular, deposed to no facts from which it may be fairly inferred that I have racist attitudes, nor to facts capable of supporting his serious and sweeping statement as to the characteristics of the judiciary more generally. I should note at this juncture that the material evinces a belief on Mr Ferdinands’ part that these proceedings may be used as an occasion for a broad ranging enquiry into his contentious dealings with at least two arms of government over a long period of time. The written material is primarily devoted to matters Mr Ferdinands asserts should be investigated by this Court in the context of his copyright infringement action.

36    I reject Mr Ferdinands’ submission that the test for the disqualification of a judge of this Court for apprehended bias is one involving an assessment of the degree of a litigant’s subjective discomfort. The governing principles are those stated in the authorities to which I have referred.

37    I nonetheless take into account that Mr Ferdinands has, in his submissions, referred to events occurring thus far in these proceedings which, he claims, have contributed to feelings of “discomfort” in appearing before me. In the circumstances, and again having regard to Mr Ferdinands’ status as a self-represented litigant, I will proceed on the basis that Mr Ferdinands intends to assert that a reasonable lay-observer, aware of the events occurring since the commencement of these proceedings, would apprehend that I may not bring an impartial mind to the resolution of the questions I am required to decide.

38    There have been only two hearings thus far in this matter. The first was the case management hearing on 19 May 2016 (the May hearing). The second was the hearing on 18 July 2016 (the July hearing) at which the Court heard submissions concerning the status of the first-named applicant and the two respondents named as parties in the action.

39    Mr Ferdinands arrived late at the May hearing. He had not contacted the Court to advise that he would be late. Attempts to reach Mr Ferdinands on the telephone number he had provided to the Court were unsuccessful. The matter was called on three times without his response. Mr Ferdinands then entered the Court at a time in which I was about to hear Counsel for the second respondent make submissions as to what, if any, orders should be made that day. Mr Ferdinands offered no apology for arriving late. I then had the following exchange with Mr Ferdinands:

MR T.K. FERDINANDS:    ..... Your Honour.

HER HONOUR:         Yes. Are you Mr Ferdinand[s]?

MR FERDINANDS:        Yes, that’s right.

HER HONOUR:     Yes. And you’re representing yourself in this matter.

MR FERDINANDS:        Yes, that’s right. Yes.

HER HONOUR:         You’re second applicant - - -

MR FERDINANDS:        Yes, that’s right.

HER HONOUR:     - - - on the originating application. Why are you late, Mr Ferdinands?

MR FERDINANDS:    There was a security thing and they had to search my bag, and then they gave me a little receipt for a pair of scissors.

HER HONOUR:    All right. I ask that on the next occasion – this is your matter. You have carriage of it.

MR FERDINANDS:        Yes.

HER HONOUR:    You’ve compelled another party to the court. You should when you’re attending this court allow sufficient time to pass through security allowing for hitches of that kind. And we attempted to telephone you by your mobile phone, but it wasn’t on. So I’ve proceeded to explain to Mr O’Flaherty that I was about to proceed in a limited way in your absence. But, perhaps, I might have you address me first on some issues arising on the documents that you’ve filed in the court. All right. Now, would you be kind enough to stand when I address you, please, Mr Ferdinands? Yes, would you stand up when I address you, please?

MR FERDINANDS:        Sorry. Yes.

HER HONOUR:    Then I know which party I’m addressing and which party is listening to me at any time. And when I’m addressing Mr O’Flaherty, you may then be seated …

40    I then explained to Mr Ferdinands that it was necessary, before determining the merits of his claim, that I be satisfied that the first-named applicant was a legal entity capable of suing and, if it was such an entity, that he was entitled to act as its representative.

41    I then drew Mr Ferdinands’ attention to the correspondence that the Court had received from the Official Trustee, being the application for leave to inspect the originating affidavit that had been filed by him. I heard Mr Ferdinands’ submission on that application and made the 19 May Order.

42    Mr Ferdinands stated that he would commence an appeal against my decision because it was “entirely wrong”. He made a request to the effect that the Official Trustee not inspect the documents until his foreshadowed appeal was heard and determined. I understood that request to constitute an application for a stay of my order granting leave to the Official Trustee to inspect the documents. I informed Mr Ferdinands that I would not grant a stay.

43    I then indicated that I would make orders dispensing with the requirement that the respondents file any defence. I heard brief submissions from the parties as to whether the first respondent, named “South Australia Police”, is a legal entity capable of being sued in that name. I indicated to Mr Ferdinands that, in fairness, he should be given an opportunity to make submissions in writing to me on that discrete issue once he had had an opportunity to read the legislation to which Counsel for the respondents had referred.

44    I heard from the parties as to a proposed timetable for the filing of materials and the setting down for argument of questions concerning the proper joinder of parties on 18 July 2016.

45    Mr Ferdinands then made an application for orders in the nature of discovery. As the transcript records, that application was made and refused as follows:

MR FERDINANDS:    Your Honour, could you make orders for all material held by Commissioner of Police in terms of police officer statements and other evidence to be given to me before Monday 11 July?

HER HONOUR:    No, Mr Ferdinands. I don’t propose to do that, because the 11 July hearing is on a very limited topic. It’s not on the topic of the merits of your application for orders in relation to infringement of copyright. It’s in relation to whether or not the first applicant is a legal entity capable of suing.

MR FERDINANDS:    Yes. Yes, I understand. But at least I can have time to prepare for the trial, you see.

HER HONOUR:    No. I won’t be making any orders for the case management and preparation of the trial until there’s some regularity in the identity of the parties.

MR FERDINANDS:    Right. Can do, yes.

HER HONOUR:    But those applications are the very kinds of applications that you can make at the case management stage.

MR FERDINANDS:    Thank you, your Honour.

46    That exchange occurred when the parties and the Court anticipated certain matters being set down for hearing on 11 July 2016. The date was later revised to 18 July 2016.

47    I then made orders to progress the interlocutory application to hearing. I made a further order requiring that both parties direct any communications in relation to the proceedings to the Registry. The costs of the hearing were reserved.

48    It can be accepted that the May hearing did not proceed entirely (or at all) as Mr Ferdinands might have expected. Having arrived late, Mr Ferdinands received a firm reminder of the importance of attending scheduled hearings at the listed time. He was asked to stand when addressing the Court. Issues were raised as to whether certain parties had been properly joined in his action and as to whether Mr Ferdinands was entitled to represent the interests of the first-named applicant. The respondents were excused from filing a defence. Leave was granted to a non-party to inspect his affidavit, over his objection. His application for a stay of that grant of leave was refused. His application for discovery orders was also refused. He was ordered, as was the second respondent, to refrain from sending communications to the email address of the Associate to the judge presiding, and instead to direct his communications to the Registry. The ordinary progression of his substantive claim to trial was delayed.

49    However, none of what I have described would cause a reasonable lay-observer to apprehend that an impartial mind would not be brought to bear on the determination of the issues (whether interlocutory or final) arising in this matter. As Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ observed in Johnson (at 493), the reasonableness of the apprehension of bias is to be considered in the context of “ordinary judicial practice”, including the reality that trial judges must respond to a need for more active case management and intervene in the conduct of a case, a practice that “may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx”. Their Honours continued:

In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of ‘the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case’. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

(footnotes omitted)

50    As I have mentioned, Mr Ferdinands’ intention to make an application for orders that I disqualify myself became apparent on the face of the written materials he filed in response to the orders I had made at the May hearing and he was then, at the July hearing, given four weeks to file an affidavit deposing to the facts upon which he relied in support of the application.

51    I have examined the transcript of the July hearing. At that hearing, I explained to Mr Ferdinands that I would not proceed to rule on the questions affecting the joinder and naming of the parties in the action until I had first considered and determined his application that I disqualify myself. I nonetheless determined that I should hear submissions on questions affecting the naming, joinder and representation of the parties, given that those issues had been set down for argument on that day, and that both parties were ready to make submissions in relation to them. Mr Ferdinands did not object to that proposed course.

52    There is, in my opinion, nothing arising out of the conduct of the July hearing that would cause a reasonable lay-observer to apprehend that I may not bring an impartial mind to the determination of the issues arising in this action. It happens that there are, in this action, a number of preliminary issues that must be determined before the matter may proceed, in a more conventional fashion, towards trial and judgment. The underlying critical issue is whether there is an applicant before the Court that is capable of owning copyright said to subsist in the literary work that forms the subject matter of the pleaded claim. If the first-named applicant is not a legal entity, it would follow that it is not capable of owning property, whether in the nature of copyright or otherwise. Moreover, the Court must have regard to the circumstance that Mr Ferdinands is an undischarged bankrupt. Insofar as copyright subsisting in the literary work was once owned by Mr Ferdinands, that copyright is property that may have vested in the Official Trustee of his bankrupt estate by the operation of s 58 of the Act: see Boyapati v Rockefeller Management Corporation (2008) 77 IPR 251; [2008] FCA 995 at [88] (Kenny J).

53    Although I accept that Mr Ferdinands genuinely and firmly holds the view that the case management and outcomes on his action thus far have favoured the respondents, I do not accept that a reasonable lay-observer would, in all the circumstances, apprehend that the orders made and the conduct of the proceedings thus far suggest bias on my part. Rather, the reasonable lay-observer would appreciate that failure by the Court (and, for that matter, by the parties) to identify issues of that kind at an early stage of an action would be contrary to the overarching purpose of civil practice and procedure provisions, including the facilitation of the efficient use of judicial and administrative resources of the Court and the efficient disposal of the Court’s overall caseload: see s 37M(1) and s 37M(2)(b) and s 37M(2)(c) of the Federal Court of Australia Act 1976 (Cth).

54    Finally, I have considered Mr Ferdinands’ submission made at the May hearing to the effect that he had made a complaint. I will proceed on the basis that Mr Ferdinands has made a complaint about the conduct of these proceedings within the mechanisms of the Court itself. He did not, however, elaborate on the content of the complaint or the facts asserted in it, nor did he provide a copy of it. The mere fact that a party to proceedings independently lodges a complaint about a judicial officer does not, without more, justify the disqualification of the judicial officer. It was open to Mr Ferdinands to assert and prove on this application the same facts as may have been asserted in support of any independent complaint he has made. The facts he has asserted in support of the application are either unproven or do not otherwise justify the relief sought.

55    I dismiss the application.

THE FIRST APPLICANT

56    In Royal Australian Nursing Federation Tasmanian Branch v Fawdry (1986) 73 ALR 540, the Full Court (Evatt, Northrop and Gray JJ) said (at 541 — 542):

… Legal theory distinguishes between two kinds of legal persons – natural and legal. Legal persons recognised by our system of law include corporations – corporations sole, corporations aggregated – companies, institutions (eg universities), created either by charter or by Act of Parliament (eg companies under the Companies Act), and organisations (eg trade unions, employers’ associations) incorporated eg under the Conciliation and Arbitration Act: see Williams v Hursey (1959) 103 CLR 30 at 51-3 per Fullagar J. …

57    As I have said, the first-named applicant in this proceeding is the “Kingsley Ferdinands Film Group”. The name itself suggests that the first-named applicant is not a natural person. So much was acknowledged by Mr Ferdinands.

58    Mr Ferdinands’ written submissions in support of his application that I disqualify myself were concerned to some extent with the separate question of whether the first-named applicant is a recognisable legal entity. I have taken those submissions into account, insofar as they bear on the question currently under consideration.

59    I am satisfied that the first-named applicant is neither a company, nor a corporation sole, nor a body corporate of any other kind, nor a partnership, nor a convenient name for a group of natural persons. In short, the first-named applicant does not exist as a juristic person capable of exercising a right to sue. It does not enjoy a legal personality separate and distinct from that of Mr Ferdinands himself.

60    I do not propose to engage in these reasons with the very lengthy submissions made by Mr Ferdinands as to the existence of the first-named applicant. That is because the submissions collectively rose no further than an assertion, without proof, that there was such a separate legal entity and because the submissions were otherwise incomprehensible, prolix or otherwise embarrassing.

61    I will order that the name Kingsley Ferdinands Film Group be removed from the title of the proceedings and that Mr Ferdinands be named as the sole applicant in the action. It is, in the circumstances, unnecessary to determine whether Mr Ferdinands is or was authorised to commence legal proceedings on the first-named applicant’s behalf or to thereafter represent the first-named applicant.

62    At the July hearing, I informed Mr Ferdinands that in the event that I determined that the first-named applicant was not a legal entity, I would not proceed to make any consequential orders without first hearing further submissions from him. I will invite the parties to submit such minutes of consequential orders (if any) as they may be advised.

THE PROPER RESPONDENT

63    The first-named respondent is “South Australia Police”. Section 4 of the Police Act 1998 (SA) (Police Act) provides:

4—Composition of police

South Australia Police (in this Act referred to as SA Police) consists of —

(a)    the Commissioner of Police; and

(b)    the Deputy Commissioner of Police; and

(c)    the Assistant Commissioners of Police; and

(d)    the other officers and members (including community constables) appointed under Part 4.

64    The second respondent submits that the name “South Australia Police” is a convenient name “for all of the natural or individual persons” which make up “South Australia Police” as that phrase is employed in the Police Act and that, accordingly, the first-named respondent is not an independent legal person: see Williams v Hursey (1959) 103 CLR 30 at 53 — 54 (Fullagar J); Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95 at [4] (Black CJ, Tamberlin and Sackville JJ). I accept that submission. I will order that the title of the proceedings be amended so as to remove the name “South Australia Police” as the first-named respondent.

65    The second-named respondent is the Commissioner of Police for South Australia, being the person appointed to that office under Pt 3 of the Police Act: see s 12. The person appointed as the Commissioner of Police is responsible for the control and management of the South Australia Police, subject to certain exceptions that are not presently relevant: see s 6 of the Police Act.

66    Section 5 of the Crown Proceedings Act 1992 (SA) (Crown Proceedings Act) provides:

5—Proceedings by and against the Crown generally

(1)    Subject to this Act and any other Act of the State, the Judiciary Act 1903 of the Commonwealth, and any relevant rules of court—

(a)    proceedings may be brought and conducted by or against the Crown in the same way as proceedings between subjects; and

(b)    the same substantive law is to be applied in such proceedings as in the case of proceedings between subjects.

(2)    Subject to the regulations, proceedings may be brought by or against the Crown—

(a)    in the case of the State Crown—under the name ‘The State of South Australia’;

(b)    in any other case—under the name in which the Crown could sue or be sued in the courts of its own jurisdiction.

67    I am satisfied that subs 5(2)(a) of the Crown Proceedings Act applies in this proceeding as a surrogate law of the Commonwealth by the operation of s 79 of the Judiciary Act 1903 (Cth), and that it governs the procedural question of the proper name of the respondent where an entity that is properly to be regarded as the Crown is sued. I should add that I am not presently concerned with the different question of whether subs 5(1)(a) is the source of Mr Ferdinands’ right to proceed against an agent, instrumentality or other emanation of the Crown in right of South Australia: compare British American Tobacco Ltd v Western Australia (2003) 217 CLR 30. It would be premature to decide that question.

68    In my opinion, the Commissioner of Police is properly to be regarded as “the Crown” for the purposes of subs 5(2)(a) of the Crown Proceedings Act. Accordingly the remaining respondent should properly be described in the title to the proceedings as “The State of South Australia”. Insofar as Mr Ferdinands has standing to bring a claim against any person or entity properly regarded as an agent, instrumentality or other emanation of the Crown in right of South Australia, the sole named respondent would then encapsulate all such persons or entities.

69    It is possible that the same result may be reached by the application in these proceedings of s 65 of the Police Act. It provides:

65—Protection from liability for members of SA Police

(1)    A member of SA Police does not incur any civil or criminal liability for an honest act or omission in the exercise or discharge, or the purported exercise or discharge, of a power, function or duty conferred or imposed by or under this Act or any other Act or law.

(2)    A liability that would, but for subsection (1), lie against a member of SA Police lies instead against the Crown.

(3)    A person (the ‘injured person’) who suffers injury, loss or damage as a result of the act or omission of a member of SA Police may not sue the member personally unless—

(a)    it is clear from the circumstances of the case that the immunity conferred by subsection (1) does not extend to the case; or

(b)    the injured person brings an action in the first instance against the Crown but the Crown then disputes, in a defence filed to the action, that it is liable for the act or omission of the member.

(4)    Where a question arises as to whether the immunity conferred by subsection (1) extends to the case and the member of SA Police claims to come within the immunity so conferred, the burden of proving that the act or omission was dishonest lies on the party seeking to establish the personal liability of the member.

(5)    If a member of SA Police is sued personally for an act or omission in the exercise or discharge, or purported exercise or discharge, of a power, function or duty conferred or imposed by or under this Act or any other Act or law—

(a)    unless the Crown is alleging that the member is personally liable for the act or omission—the Crown must represent the member; or

(b)    if the Crown does not represent the member and the member is found by the court not to have acted dishonestly—the Crown must indemnify the member for legal costs properly incurred by the member (but not exceeding 80% of the Supreme Court scale of costs applying at the time the case is determined).

70    An issue may arise in the proceeding as to whether s 79 of the Judiciary Act operates to pick up s 65 of the Police Act so as to effectively preclude a copyright infringement action being brought against any one particular member of the South Australia Police. That would depend upon whether the Constitution or a law of the Commonwealth (including the Copyright Act 1968 (Cth)) otherwise provides. The parties have not advanced submissions on that particular question, whether in relation to the infringement proceedings as commenced under the Copyright Act or in relation to any other cause of action. Indeed, it is presently unclear whether any additional cause of action is relied upon or intended to be relied upon by Mr Ferdinands and I am yet to determine whether Mr Ferdinands has standing to maintain the proceedings in any event, especially having regard to his status as an undischarged bankrupt. It is appropriate that I not express any concluded view about the application (if any) of s 65 of the Police Act in the proceedings.

71    I will order that The State of South Australia be named as the sole respondent in the proceedings in accordance with subs 5(2)(a) of the Crown Proceedings Act.

72    I will hear the parties as to ancillary and consequential orders, including as to costs.

Associate:

Dated:    27 October 2016