FEDERAL COURT OF AUSTRALIA

DOQ17 v Australian Financial Security Authority (No 2) [2018] FCA 1270

ORDERS

THE COURT ORDERS THAT:

1.    The disqualification application is dismissed.

2.    The applicant is to pay the respondents’ costs of and incidental to the application as agreed or assessed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    On 24 April 2018, I dismissed an application by the applicant to join two additional respondents to this matter and to amend her Further Amended Statement of Claim (FASC), save for one permitted amendment: DOQ17 v Australian Financial Security Authority [2018] FCA 561 (DOQ17 (No. 1)). By a letter dated 30 April 2018, the applicant “formally request[ed]” that I disqualify myself from continuing to sit in the proceeding and set out in detail her reasons for making that request. The reasons why the applicant seeks my disqualification are based upon her interpretation of my reasons in DOQ17 (No. 1) and appear to allege both apprehended and actual bias.

2    On 4 May 2018 I informed the applicant that I would regard that letter as an application to disqualify myself from continuing to hear and determine this matter, explained the inappropriateness of affidavit evidence being filed on an application of this kind, and invited written submissions from the respondents on the disqualification application (which were filed in due course). I reiterated that position in correspondence to the parties on 16 May 2018 and, on 18 May 2018, formally made orders taking the applicant’s letter as an application for me to disqualify myself (the disqualification application) and for the filing of written submissions by the applicant in reply. I also made orders that no affidavit was to be filed by any party with respect to the disqualification application save with leave of the Court. In this regard, as the email I directed Registry to send dated 16 May 2018 explained, the giving of sworn evidence in support of allegations of alleged or apprehended bias carries with it certain dangers which should be taken into account by the Court in deciding whether such evidence is appropriate. These dangers potentially include that:

(1)    the process of proving the facts by affidavit itself may give rise to an apprehension of bias such that the decision maker must in any event disqualify herself or himself;

(2)    statements may be made which are regarded as constituting a contempt of court;

(3)    inaccurate or dishonest statements may be made; and

(4)    the decision maker may know that assertions of fact by the moving party are incorrect but those assertions may not be challenged by the other parties and they cannot, of course, be refuted by evidence from the decision maker.

(See e.g. Bainton v Rajski [1992] 29 NSWLR 539 at 545-546 (Mahoney JA); Barton v Walker [1979] 2 NSWLR 740 at 749 (Samuels JA, Reynolds and Glass JJA agreeing); Vidyasagara v The Queen [1963] AC 589 at 596.)

3    The first, second, third and seventh respondents filed a joint submission, while the fourth respondent filed a separate submission. The fifth respondent, the Registrar General of New South Wales, wrote advising the Court that he adopted the other respondents’ submissions. All of the respondents opposed the application for disqualification on the ground that no proper basis for my disqualifying myself had been identified by the applicant. The applicant filed submissions in reply to the fourth respondent.

4    It is clear that the applicant disagrees strongly with the interlocutory decision in DOQ17 (No. 1) and with my reasons. It is also clear that the applicant has read findings into the decision which are not present. In particular while the applicant submits (among other things) that I have found her to be a “liar”, I have made no findings as to her credit in that judgment or otherwise.

5    For the reasons I explain below, I agree with the respondents that the applicant has not identified a proper basis upon which I should recuse myself. That being so, it is my duty to continue to hear the matter: Australian National Industries Ltd (In Liq) v Spedley Securities Ltd (In Liq) (1992) 26 NSWLR 411 at 417-418 (Kirby P). As for example, Mason J emphasised in Re JRL; ex parte CJL (1986) 161 CLR 342 (Re JRL) at 352:

…it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge they will have their case tried by someone thought to be more likely to decide the case in their favour.

2.    PRINCIPLES GOVERNING DISQUALIFICATION APPLICATIONS

2.1    Apprehended bias

6    The test for apprehension of bias is an objective one. It does not require a consideration of the decision maker’s state of mind: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner) at [7]-[8] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Michael Wilson & Partners v Nicholls [2011] HCA 48; (2011) 244 CLR 427 (Wilson) at [32]-[33] (Gummow A-CJ, Hayne, Crennan and Bell JJ). The test to be applied in determining whether a decision maker is disqualified by reason of the appearance of bias is well-established, namely, “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”: Wilson at [31] (the so-called “double might” test).

7    This test requires consideration of two steps:

(1)    the first step requires identification of what it is said might lead a decision maker to decide a case otherwise than on its legal and factual merits; and

(2)    the second step requires the articulation of the logical connection between that matter and the risk that the decision maker will decide the matter otherwise than on its merits.

(Ebner at [8] (recently approved, e.g., in Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 (Isbester) at [21] (Kiefel, Bell, Keane and Nettle JJ)))

8    In applying the test for apprehended bias, it is important to emphasise that the fair-minded lay observer “is taken to be aware of the nature of the decision and the context in which it was made, as well as to have knowledge of the circumstances leading to the decision”: Isbester at [23]. Thus, as Kirby J explained in more detail in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 in identifying the attributes of the fair-minded lay observer:

53. The attributes of the fictitious bystander to whom courts defer have… 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 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. … Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.

9    Consistently with this, in Vakauta v Kelly (1988) 13 NSWLR 502 (Vakauta) at 527-528, McHugh JA (as his Honour then was) explained that:

… in the case of a professional judge whose training, tradition and oath or affirmation require [her or] him to discard the irrelevant, the immaterial and the prejudicial, a conclusion that there is a reasonable apprehension that [she or] he is biased should not be drawn lightly.

(see also Vakauta at 535 (Clarke JA))

10    In the present case, the allegation appears to be one of pre-judgement, i.e., whether I would be perceived to have (or have) a state of mind so committed to a conclusion already formed as to be incapable of alteration: Minister for Immigration and Multicultural Affairs v Ex parte Jia [2001] HCA 17; (2001) 205 CLR 507 (Jia) at [71]-[72].

2.2    Actual bias

11    The applicant also appears to allege actual bias in the form of pre-judgment. While not raised with the degree of clarity required by the authorities, I have nonetheless considered this ground which was also addressed by the respondents in their submissions. In contrast to apprehended bias, an enquiry about actual bias in the form of pre-judgement requires an assessment of the state of mind of the decision maker in question, that is, whether the decision maker has in fact prejudged an issue to be determined in the proceeding: Wilson at [33]. However bias may also be subconscious provided that it is real: Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 (Reid) at [73] (Gleeson JA, Tobias and Emmett JJA agreeing).

12    The Court in Reid conveniently summarised the relevant principles as follows:

68. A finding of actual bias is a grave matter... Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required…

69. Where the issue is actual bias in the form of prejudgment, the appellant had to establish that the primary judge was "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented": Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [72] per Gleeson CJ and Gummow J (Hayne J agreeing at [176]). ….

70. As Gleeson CJ and Gummow J observed in that case at [71]:

"The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion."

(emphasis added)

13    There are several elements to such a claim of actual bias identified by Hayne J in Jia at [185], namely, the contentions that:

(1)    the decision maker has an opinion on a relevant aspect of the matter in issue in the particular case;

(2)    the decision maker will apply that opinion to that matter in issue; and

(3)    the decision maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case.

14    After referring to these elements, the Court in Reid continued:

72. His Honour observed at [186] that allegations of actual bias through prejudgment often fail at the third step he had identified. This was because notwithstanding whatever expression of preconceived opinions by the decision-maker, it does not follow that the evidence will be disregarded.

2.3    Bias and apprehended bias based upon interlocutory rulings

15    Finally, as the fourth respondent submits, generally speaking interlocutory rulings ought not to be regarded as giving rise to a reasonable apprehension of bias or actual bias because they necessarily precede the final resolution of the proceedings and therefore do not finally determine any of the issues: see Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100-101 (by analogy) (Gaudron and McHugh JJ). As for example, the New South Wales Court of Appeal held in R v Masters (1992) 26 NSWLR 450 at 471, after referring to Re JRL:

The effect of those unanimous pronouncements was clear. The fact that a judge has decided an issue in a particular way, and is likely to decide in the same way when it arises again, does not amount to prejudgement which may require [her or] him to disqualify [herself or] himself in order to avoid an apprehension of bias. The reasonable apprehension which should lead to disqualification must be that the judge will not decide the case impartially or without prejudice, not simply that he or she will decide the case adversely to one party.

16    However an interlocutory ruling may give rise to a reasonable apprehension of bias if, for example, credibility findings are made which may imply the possibility of a fixed view in the case: see e.g. Southern Equities Corp Ltd (In Liq) v Bond [2000] SASC 450; (2000) 78 SASR 339 at [58]-[63] (Olsson J) and [150] (Bleby J); Kwan v Kang [2003] NSWCA 336 at [95]-[101] (Sheller, Ipp and Tobias JJA).

3.    CONSIDERATION OF THE APPLICATION FOR DISQUALIFICATION

17    In relation to the claim of apprehended bias and applying the approach required by Ebner, I have identified the matters said to lead to the conclusion that I might decide the matter other than on its legal and factual merits. However, I have found that there is no logical connection between those matters and the claimed apprehension of bias, whether those matters are considered individually or cumulatively.

18    First, in her disqualification application and submissions in reply the applicant placed particular weight upon the following paragraph in the interlocutory judgment in DOQ17 (No. 1):

35. By way of preliminary matters, I note first that I have disregarded the many allegations by the applicant in her written submissions that the legal representatives for the respondents have misled the Court in various ways, as well as the applicant’s many disparaging comments about the respondents’ legal representatives. The fact that a litigant is unrepresented does not justify the making of scandalous and unfounded allegations of misconduct or disparaging comments against the legal representatives for other parties. The Court expects all litigants to act with courtesy and respect. Many of the applicant’s submissions were also irrelevant, and made allegations amongst other things about third parties: see e.g. the allegations in the applicant’s written submissions at [46]. These have also been disregarded.

19    The applicant alleges that I found her to be “a liar”, apparently relying in particular on the preliminary matters dealt with in DOQ17 (No. 1) at [35]. No such finding however is made in DOQ17; nor is the applicant’s credit considered in that interlocutory decision. The proposed new causes of action which the applicant wished to plead in her proposed amended FASC failed by reason of legal or technical defects, as opposed to findings of fact or credit. For example, leave to amend to insert proposed pleadings alleging defamation was refused because they failed to identify any alleged defamatory imputations and were in any event statute barred (DOQ17 (No. 1) at [45] and [46]). Similarly, leave to amend to plead that the respondents and proposed respondents had acted in breach of a duty of care or other duties as practising solicitors was refused because there was no allegation, and none could be made, that any of the respondents or proposed respondents were retained to act for the applicant (DOQ17 (No. 1) at [48]). As a further example, leave to amend to plead a cause of action allegedly based upon s 723 of the Legal Profession Act 2004 (NSW) was refused on the ground that that section creates a criminal offence and not a statutory cause of action, among other difficulties which that proposed pleading confronted as a matter of law (DOQ17 (No. 1) at [53]-[57]).

20    The applicant also said that DOQ17 (No. 1) at [35] demonstrated an alleged “disregard for many allegations made by [the applicant]” (disqualification application at [2]). She denies that the allegations in question were scandalous and unfounded, and repeats a number of those allegations. The applicant also attached various subpoenaed documents said to establish the allegation made at [46] of her written submissions on the application for leave to amend the FASC that she was unable to “make argument or defend herself against the Federal Attorney-General instructing the Respondents’ Counsel”. She claims that I was wrong in DOQ17 (No. 1) to disregard her submissions at [46] on the ground that they were irrelevant and concerned third parties, and submits that in so doing, I ignored certain comments made in her submissions and elsewhere (disqualification application at [3]).

21    Those submissions overlook what would have been apparent to the fair-minded lay observer, namely, that part of the duty and function of the judge is to separate the relevant from the irrelevant, to disregard allegations made without evidentiary foundation, and to maintain control of the proceedings so as to ensure a fair trial. As an aspect of the latter, the Court must ensure that the parties and their legal representatives are treated with courtesy and respect, and may reprimand an unrepresented party, as it may any party, where such standards are not met: see Hamod v New South Wales [2011] NSWCA 375 (Hamod) at [313]-[314] (Beazley JA, with whom Giles and Whealy JJA agreed). The trial must be a fair one for all parties, whether represented or not: Hamod at [313].

22    From the perspective of the fair-minded lay observer, DOQ17 (No. 1) at [35] does no more than put to one side disparaging comments and mere assertions which lacked an evident evidentiary foundation and related to a third party to the proceeding, the Commonwealth Attorney-General. So much is required in the exercise of objective judgment, as the fourth respondent submitted. The documents annexed to the disqualification application which went to this submission could not establish that the Commonwealth Attorney-General was a party to these proceedings and meet that difficulty. The passage also reminds the applicant, in light of those comments and assertions, of the Court’s expectation that all parties will act with courtesy and respect. The fair-minded lay observer would not perceive that in undertaking these tasks, there is a risk that I might not bring an impartial mind to the final determination of the issues at trial. Nor would anything in those comments be considered by the fair-minded lay observer to convey any animosity towards the applicant. At its highest, as the fourth respondent contends, the applicant’s complaint amounts to an allegation of a failure to have regard to relevant material indicating an error in the exercise of discretion, and a disagreement with the findings at [35] of DOQ17 (No. 1).

23    Secondly, the applicant alleges that various matters outlined below were not taken into account in exercising the discretion to refuse leave (subject to one exception) to amend the FASC:

(1)    “the impact that the many years of legal battle with the Respondents have had on myself and my family”, in addition to the fact that two conference papers were published by the fourth respondent, and not merely one (disqualification application at [1]). These complaints are made with respect to DOQ17 (No. 1) at [1] which is headed “Introduction” and sought to identify those matters “[a]t the heart” of the applicant’s complaint;

(2)    the applicant alleges a misunderstanding of the basis on which she sought leave to amend the FASC apparently referring to DOQ17 (No. 1) at [35], and a misunderstanding of certain proposed amendments to the FASC at DOQ17 (No. 1) at [48] (disqualification application at [4] and [8]); and

(3)    the applicant disputes a finding at [39] of DOQ17 (No. 1) as to when she became aware of the contents of a particular affidavit (disqualification application at [7]).

24    Each of these matters appear at their highest to amount only to an allegation of apprehended bias. However, none of these matters, considered alone or cumulatively, establish a reasonable apprehension that I would decide the matter otherwise than on its merits with a mind open to persuasion having regard to the evidence to be led and submissions to be made at trial. At best, they amount to alleged errors in fact finding and to a failure to have regard to relevant matters. Even if established, these matters would constitute no more than an error in the exercise of discretion to refuse to grant leave to amend and to join the additional respondents: see House v The King (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ). I also note with respect to the third matter identified above that the finding at [39] of DOQ17 (No. 1) was made upon the applicant’s proposed amended pleadings themselves and was not a finding as to the truth or otherwise of the facts pleaded.

25    Thirdly, in her disqualification application at [9], the applicant submits that “[t]he claims made by Your Honour in point 41 clearly point to Your Honour’s bias, discrimination against an unrepresented litigant and prejudice towards me.” At [41] of DOQ17 (No. 1), I found that, “…despite the seriousness of such allegations [in the proposed new pleadings], the pleadings go no higher than bare assertions or conclusions and, as such, fail to plead essential elements of the causes of action alleged, fail to provide proper notice of the claims, and are embarrassing and scandalous.” I then go on to give examples of the unparticularised allegations in the proposed amended FASC. In so finding, a reasonably informed fair-minded lay observer would not apprehend that I would not bring an open mind to bear upon the issues to be determined at trial. The finding focuses only upon fundamental deficiencies in the proposed new pleadings which would have rendered any grant of leave to amend futile, applying the well-established principles explained earlier by reference to various authorities in DOQ17 (No 1) at [26].

26    Fourthly, the applicant alleges that it is well documented that the Courts and the legal community dislike unrepresented litigants and discriminate against them, labelling what they say as frivolous, vexatious or an abuse of process, and that she refuses to be so labelled (disqualification application at [10] and [16]). The submission is mistaken. The interlocutory judgment does not “label” the applicant (or unrepresented litigants generally) in any respect. Rather, as would be apparent to the fair-minded lay observer, the proposed pleadings suffered from deficiencies which, in line with the authorities discussed in DOQ17 (No 1) at [26], are commonly described by terms such as “embarrassing”. Similarly, the finding in DOQ17 (No. 1) at [66] that the attempt to challenge a decision of the Federal Circuit Court collaterally in separate proceedings would constitute “an abuse of process” does no more than apply a well-established description to a course of conduct of this particular kind, again in line with the authorities. As such, the use of such descriptors could not establish perceived (or actual) bias or discrimination against unrepresented litigants or the applicant generally. None of these matters suggest that I would not bring an open mind to bear on the evidence to be led, and submissions to be made, at the trial.

27    In the fifth place, the applicant complains of her inability to obtain legal representation, alleging that “it is available to Your Honour, to recommend legal representation for me but you have declined to take this route because of your Honour’s bias and prejudice” (application at [11]). There are, however, many individuals who appear before the Federal Court and in other courts without legal representation and this reality would be known to the fair-minded lay observer. The duty of the court in such cases has been carefully spelt out and does not extend to a duty to obtain legal representation for the unrepresented litigant. Rather, as the New South Wales Court of Appeal explained in Hamod with respect to the Court’s duty to unrepresented litigants:

309    Courts have an overriding duty to ensure that a trial is fair…. This entails ensuring that the trial is conducted fairly and in accordance with law…. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented...

310    However, the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just …

311    Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. …

(citations omitted)

28    Consistently with this, and noting that the duty is the same for civil proceedings, the Court went on to explain that the duty of the trial judge to assist an unrepresented litigant “does not extend to advising the accused as to how his or her rights should be exercised”: Hamod at [312].

29    The articulation of the Court’s duties in Hamod has been approved by the Federal Court: see e.g. SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37] (Robertson J, with whom Allsop CJ and Mortimer J agreed).

30    Given these matters, there could be no apprehension of bias or actual bias demonstrated by the fact that I have not made a referral seeking pro bono legal representation for the applicant. Equally, neither the conduct of other judicial officers in other courts in response to earlier applications by the applicant for disqualification and in case managing the matter, nor the manner in which Federal Court Registry has dealt with requests for the issue of subpoenas, could logically give rise to any apprehension of bias on my part (contrary to the allegations at [5]-[6] and [12]-[14] of the disqualification application).

31    Furthermore, the fact that the interlocutory application for leave to further amend the pleadings and to join further respondents was decided upon the papers does not have any logical bearing upon the question of whether I would bring an open mind to the resolution of the proceedings (contrary to the allegation at [15] of the disqualification application).

32    In short, neither considered separately or together would any of the matters raised by the applicant suggest to the fair minded lay observer that I would decide the matter at trial otherwise than on its merits. Equally, there is no evidence to sustain any allegation of actual bias, that is, of any commitment to a conclusion already formed which is incapable of alteration regardless of the evidence or the parties’ respective submissions. The applicant has not identified any passage in DOQ17 (No. 1) in which I have expressed any final opinion on any ultimate fact or issue to be resolved in the proceedings; nor are any such opinions expressed. Rather, the proposed amendments and joinder application were not allowed for case management reasons or because the pleadings or proposed causes of action were defective or futile. Those questions were determined on the face of the pleadings and were not referable to any assessment as to the applicant’s or any other party’s credit.

33    Ultimately, therefore, the applicant’s application for disqualification is reflective of her strong disagreement with the decision in DOQ17 (No 1) to refuse her leave to amend the pleadings and to join additional respondents. However, as the fourth respondent points out, “there will be a winner and a loser where opposing sides contend for different outcomes”: so much is inherent in litigation. The mere fact that a decision was reached which was unfavourable to the applicant is insufficient to give rise to a finding of apprehended bias. As for example, Kenny J held in Spalla v St George Wholesale Finance Pty Ltd [2006] FCA 416 with respect to an interlocutory ruling:

14. … the mere fact the litigant does not gain rulings in his or her favour in the course of the trial does not reasonably create an apprehensive of bias on the part of the fair-minded lay observer. As I have said, when such rulings are made, they will almost inevitably suit the immediate interests of one party rather than another. It may be that the less favoured party is discouraged by the turn of events, though these events may have no ultimate bearing on the outcome of the case. Whatever the ultimate and as yet unknown effect of a ruling or rulings on the ultimate outcome, an adverse ruling of this kind does not indicate that the judge has reached any view on the ultimate merits.

See also e.g. Hamod v New South Wales (No. 11) [2008] NSWSC 967 at [20] (Harrison J) (approved on appeal in Hamod at [269]); MTI v SUL (No. 2) [2012] WASCA 87 at [14] (the Court).

4.    CONCLUSION

34    For these reasons the application seeking my recusal from continuing to hear and determine the matter is dismissed with costs.

Associate:

Dated:    23 August 2018

SCHEDULE OF PARTIES