FEDERAL COURT OF AUSTRALIA

Clarke v Premier Youthworks Pty Limited [2019] FCA 551

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for leave to appeal is refused.

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

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    This is an application for leave to appeal under s 24(1)(d) and s 24(1A) of the Federal Court of Australia Act 1976 (Cth) from an interlocutory decision of the Federal Circuit Court of Australia.

2    By orders made on 1 November 2018, a judge of the Federal Circuit Court of Australia dismissed Mr Clarke’s application in a case that the primary judge recuse himself.

3    The primary proceedings concern an application for relief under the Fair Work Act 2009 (Cth) against the respondent arising out of Mr Clarke’s dismissal as a casual youth worker. The primary hearing took place between 13 and 15 June 2018. Those proceedings are part heard, in that submissions have not yet been made.

4    The primary judge said that the applicant was self-represented and was a young lawyer. He had in the past held a practising certificate.

5    The application in a case, filed in the Federal Circuit Court of Australia on 22 August 2018, sought the following orders:

1.    That the docket judge in this matter, Judge Neville, be disqualified from these proceedings on the basis of actual bias in the form of prejudgment.

2.    In the alternative to the first order sought, that His Honour be disqualified from these proceedings on the basis of apprehended bias in the form of prejudgment.

3.    That any further procedural matters be dealt with only after the determination of this application.

The application for leave to appeal

6    The applicant, Mr Clarke, continues to be self-represented.

7    Mr Clarke no longer argues that the primary judge was actually biased.

8    By his amended draft notice of appeal, Mr Clarke raises the following proposed grounds:

1.    The learned Judge at first instance (‘His Honour’) erred in concluding that the Applicant had waived his right to raise bias, and by failing to provide adequate reasons for this conclusion.

2.    His Honour erred in concluding that the factual circumstances raised in the application do not meet the threshold to satisfy a finding of apprehended bias, and by failing to provide adequate reasons for this conclusion.

3.    His Honour erred in failing to consider or give any weight to the following submissions made by the Applicant and factual circumstances:

(a)    That His Honour refused to provide the basis for the view that he expressed, being that the Applicant’s evidence of 14 June 2018 was ‘different’ to that of 13 June 2018, despite the Applicant requesting that the basis for this view be made clear;

(b)    That without His Honour having provided his basis for this view the Applicant was not able to adduce further evidence in direct response to this view, nor was he able to directly address this view in argument and submissions;

(c)    That His Honour was not, by the relevant comment, seeking to test, explore or clarify the Applicant’s evidence, as he did not reveal the basis for his view or allow a response to be made directly against it;

(d)    That written submissions had been limited in total to 12 pages of size 12, double spaced font;

(e)    That His Honour’s conduct was such that he was audibly laughing as he refused to provide the basis for this view;

(f)    That His Honour preceded the comment that the Applicant’s evidence was different by making a distinct ‘ah’ sound, which served to emphasise a view that something has been learned or found at that point by His Honour, and made this sound subsequently to making these comments;

(g)    That His Honour, after making reference to ‘having to rule on certain things ... in the light of your evidence’, stated ‘but still’;

(h)    That His Honour paused in a noticeable manner before saying the word ‘different’, which served to give this word greater emphasis;

(i)    That the Applicant was seeking access to the record of the hearing at the earliest possibility, being on 18 June 2018, in order to determine the factual background and circumstances in relation to his Honour’s comments that he thought the evidence of the applicant was different;

(j)    That the delay in accessing the record of hearing was not attributable to the Applicant, but rather rests overwhelmingly with the transcript provider;

(k)    That the Applicant filed the recusal application at the earliest opportunity, after having been able to consider the relevant factual background (being the record of his evidence on 13 and 14 June 2018) and while orders of the court were on foot;

(l)    That the Applicant possessed a negligible level of experience of legal practice at the time of hearing;

(m)    That the questioning of the Applicant leading into the relevant comments was in essence a re-opening of examination of the Applicant after the conclusion of cross­examination by counsel for the Respondent on matters that had not been touched or raised by counsel;

(n)    That submissions by the Applicant in relation to the cases of Vakauta v Kelly [1989] HCA 44 and R v Watson: Ex parte Armstrong [1976] HCA 39, and the principles applicable to these cases, were not considered;

(o)    That His Honour has referred to the fact that the matter of whether there was a difference or not in the Applicant's evidence, a matter that goes to the heart of credibility, is still a standing matter for determination by His Honour (paragraph 16 of the Reasons for Judgment);

(p)    That the Applicant clearly was concerned by the relevant comments made by His Honour that His Honour was of the view that the Applicant's evidence was different.

4.    His Honour has erred in the application of the legal principles as set out in paragraphs of the Reasons for Judgment including paragraph 25, 31 and 33 in that this case law repeatedly refers to the need for a judge to make his or her views, if tentative, known to the parties so that they are afforded a full opportunity to be heard on and respond to them in the aversion of an appearance of bias.

5.    His Honour has erred in wrongly framing the Applicant's submissions in relation to the central aspects of the claim of bias (paragraph 49 of the Reasons for Judgement).

6.    His Honour has erred in reasoning that because the principles relating to bias appear in a textbook that all lawyers should have an immediately applicable working knowledge of these principles that can be effectively and sensitively applied mid-trial (paragraph 59(b) of the Reasons for Judgment).

The evidence

9    The applicant relied on two affidavits affirmed by him, the first on 15 November 2018 and the second on 6 February 2019.

The reasons of the primary judge

10    The reasons of the primary judge for refusing the application that he recuse himself were, in summary, as follows.

11    First, the primary judge said that the delay in bringing the application was sufficient to require that it be dismissed. The primary judge said the two month delay readily established that the applicant had waived the right to make and to press such an application. This was against the fact that it was not until 22 August 2018 that the applicant filed his application for recusal.

12    The primary judge also then gave reasons for his conclusion that the recusal application was not made out both as a matter of fact and as a matter of law.

13    The primary judge set out the relevant parts of the transcript of 14 June 2018. At [14], the primary judge said that, in his view, “when viewed in the full context, and that Mr Clarke remained under cross-examination, each and all of the questions put to him by the Bench were simply seeking to clarify the Applicant’s position in relation to certain matters and to elucidate from him comment on them.”

14    At [16], the primary judge concluded that, as what follows was the sole, factual basis put forward by the applicant, there was no factual basis upon which the recusal application could, or should, succeed:

In his submissions, noted below, the Applicant’s focus was very much on a single question or observation regarding what I thought or perceived at the time, regarding a possible inconsistency in the Applicant’s evidence. He has consistently sought to highlight, or to argue, that there was no relevant inconsistency and takes this opportunity to do so. Whether there was or was not is not something that the Court has to make any ruling on in the context of a recusal Application. A trial Judge, also as noted below in accordance with authority, is more than permitted to make inquiry both to test evidence and to seek to clarify evidence given by a witness. In the complete context, set out in the official Transcript above, it is plain that all that was happening in the early part of the second day of the trial was an attempt to clarify, and to explore, certain aspects of the Applicant’s evidence.

(Original emphasis.)

The submissions of the parties

15    I summarise the applicant’s submissions as follows.

16    As to the finding of waiver, the applicant submitted that the material put in the present application (as well as the evidence in the application below) showed that the applicant was, from essentially the time that the relevant comments were made by the primary judge, and certainly from the earliest possible opportunity following the hearing, taking steps in order to determine the factual circumstances and background relating to the primary judge’s comments. The applicant was doing this, he submitted, by requesting during the hearing that the primary judge make clear the basis for his comments, and immediately following the hearing by seeking the audio recording of the hearing from the transcript provider and, once this was eventually provided, by analysing this material. The applicant referred to relevant parts of the affidavits referred to at [14] above.

17    The applicant submitted that it was once he had had an opportunity to fully inform himself of the factual circumstances upon which an apprehended bias application could be founded that such an application was made, and that the application was made promptly once he was aware of the relevant circumstances. He submitted that the recusal application was therefore made by him as soon as he was in a position to do so and as soon as was reasonably practicable. He submitted he did not waive the right to raise bias.

18    The applicant submitted that the relevant comments made by the primary judge were made on the second day of a three-day final hearing of the matter (being 14 June 2018) in the court below. These comments were set out in the applicant’s affidavit affirmed 15 November 2018, and the parts of the transcript of hearing in the court below considered relevant by, and as set out in the reasons of, the primary judge. A USB flash drive containing an audio file, which was an audio recording of this verbal exchange, had been filed with the applicant’s affidavit affirmed 6 February 2019.

19    The applicant submitted that the comments that concerned the present application (and that of the application below) were a statement by the primary judge during the second day of the hearing that he was of the view that the applicant’s evidence between the first and second hearing days was “different”. The comments made by the primary judge during the hearing were then followed, the applicant submitted, by a refusal on the primary judge’s part to provide the basis for this view that the applicant’s evidence was different when this basis was sought by the applicant. Having set out extracts from the reasons of the primary judge at [14], [16], [44], [53], [55] and [56], the applicant submitted that the primary judge appeared to rely heavily on the position that the relevant comment was made by him for the purpose of garnering further information from the applicant, and in order to clarify, test and explore the applicant’s evidence, and further that it was a question that the primary judge asked and that the applicant was given a full opportunity to respond to. The applicant submitted this was not the case. When the applicant sought to address and respond to the comment that the primary judge made in relation to the applicant’s evidence being different from the day before, the primary judge declined to provide the basis for the comment that he had made, while audibly laughing. This refusal to reveal the basis of the primary judge’s view effectively precluded the applicant from being able to provide a proper and delineated response, the applicant submitted.

20    The applicant submitted that the comments and remarks were directed unmistakably to the credibility of witness testimony. The principles set out in a number of paragraphs of the reasons of the primary judge, at [25], [31] and [33], were clearly directed towards the full provision by an adjudicator of their view on any tentative matter during a hearing for the stated purpose of the parties being in a position to properly address and deal with any such view and “the repair of misapprehensions”, referring to the reasons of the primary judge at [31]. This was a quite different situation, the applicant submitted, to what could be seen to have taken place by the relevant comments made by the primary judge during the hearing, and was indicative of the authorities being wrongly interpreted and applied. The applicant referred to Vakauta v Kelly [1989] HCA 44; 167 CLR 568 at [4].

21    The applicant then referred to what he described as ancillary grounds and said that the most important such ground was Ground 5, which dealt with the primary judge wrongly framing the applicant’s central claim of bias.

22    As to costs, the applicant submitted the present application fell within s 570 of the Fair Work Act 2009 (Cth) so that there should be no costs order.

23    I summarise the respondent’s submissions as follows.

24    The respondent submitted that the application that the primary judge recuse himself on the basis of actual bias or on the basis of apprehended bias was made over two months after the parties had closed their respective cases, but before the parties had made their submissions. The proceedings below were effectively in abeyance pending the outcome of this application.

25    There was no issue, the respondent submitted, that the primary decision was interlocutory.

26    Further, the respondent submitted, the following two propositions were manifest:

(a)    in dismissing the application in a case, the Primary Judge was exercising a discretion; and

(b)    the Primary Decision involved a matter of practice and procedure: Melbourne City Investments Pty Ltd v UGL Ltd [2017] VSCA 128 at [63] (per Warren CJ, Tate and Whelan JJA).

27    The respondent submitted that in those circumstances leave to appeal should not be granted because the applicant had failed to demonstrate a proper basis such a grant of leave.

28    The respondent also submitted that the Court should not grant leave to appeal for the following reasons.

29    Firstly, the decision was not attended by sufficient doubt to warrant its reconsideration on appeal. A fair reading of the primary decision demonstrated that the primary judge:

(i)    had regard to and applied the salient principles applicable to what was undoubtedly an exercise of discretion (Primary Decision at [24] – [39]);

(ii)    had regard to the evidence and facts relied upon by the Applicant (Primary Decision at [12], [15], [17]) and the broader factual context (Primary Decision at [13], [22]);

(iii)    had regard to and considered the submissions made by the Applicant (Primary Decision at [17]–[19], [41], [46]–[49], [54]–[58]); and

(iv)    decided to dismiss the application because the evidence did not demonstrate either actual or apprehended bias and because he was satisfied that the Applicant had waived his right to object because he delayed in bringing the application (Primary Decision at [5], [60]). All of those findings were open to the Primary Judge on the evidence before him.

30    Secondly, in light of the foregoing, none of the matters relied upon by the applicant demonstrated that the primary judge erred in the exercise of his discretion. More specifically, the respondent submitted:

(i)    it is an undeniable fact that the Applicant delayed approximately two months before making the recusal application. Further, it is also undeniable that the Applicant was aware of the circumstances (Smits v Roach (2006) 227 CLR 423 at [43], [61], [125]) providing the grounds for such an application or objection on 14 June 2018 (Primary Decision at [12] – [13]) –being the date of the exchange between the Applicant and the Primary Judge. This is confirmed by the fact that the only evidence upon which the Applicant seeks to rely in support of his recusal application is that exchange.

In those circumstances, it was open to the Primary Judge, on the evidence before him, to conclude that the Applicant had waived his right to make the recusal application or objection. Whilst the Primary Judge’s reasons on this were brief (Primary Decision at [4] – [5], [59]), they disclose the reasoning upon which the decision is based (Carlisle Homes Pty Ltd v Barrett Property Group Pty Ltd [2009] FCAFC 31 at [41]). There is therefore no substance to Ground 1 of the proposed grounds of appeal; and

(ii)    further, and in any event, the Primary Judge alternatively decided the Applicant had failed to demonstrate actual or apprehended bias on the facts (Primary Decision at [35], [60]). Once again, that was a finding that was open to the Primary Judge on the evidence (the Respondent submits that it was the only finding reasonably open on the evidence).

The matters relied upon by the Applicant at [16]–[24] of the Applicant’s Submissions do not disclose any error in the exercise of the Primary Judge’s discretion. Properly understood, they appear (see Applicant’s Submissions at [24]) to be arguments directed to sustaining the alternative finding, but not one that was dictated by that evidence.

31    In the circumstances set out above, and given that the primary decision disclosed the reasoning upon which the decision was made, the respondent submitted there was also no substance to Ground 2 of the proposed grounds of appeal.

32    Third, the respondent submitted, the applicant had failed to point to any injustice he will suffer if leave to appeal was not granted, let alone “substantial injustice”. The substantive proceedings were yet to be concluded. If the applicant was unsuccessful at trial it was open for him to appeal on the ground that the primary judge did not disqualify himself: Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48; Minus v Selth [2016] FCA 834 at [44].

33    The respondent submitted there was no other reason why the Court should not apply the usual judicial restraint in respect of appeals involving the exercise of discretion on matters of practice and procedure.

34    As to costs, the respondent accepted that the application was one to which s 570, in particular s 570(2), of the Fair Work Act applied.

Consideration

35    I have read the pages of the transcript relied on by the applicant. The relevant part of the official transcript is reproduced at [13] of the reasons of the primary judge. I have listened to the audio recording relied on by the applicant, which was also played in open court at the hearing of this application.

36    I have read the reasons of the primary judge, bearing in mind that the application before him was one for recusal for both actual bias and apprehended bias.

37    For the reasons I set out more fully below, I do not accept Mr Clarke’s evidence, or submission, that the primary judge “indicated that he had formed the view that there was a difference in the oral evidence”.

38    I also do not accept that the primary judge laughed at Mr Clarke’s request that the primary judge provide the basis for his view. The tone of the very short laugh was, as I perceived it, in spontaneous reaction to the peremptory and unusual, if not inappropriate, question that Mr Clarke directed to the primary judge: “How so?”; when the primary judge had said “Well, these were questions that Mr Darams put to you yesterday, and I thought your evidence was a little bit different.” There is no substance in the other proposed grounds, 3(f)-(h), with reference to the manner of what was said by the primary judge, set out at [13] above.

39    The primary judge declined to answer Mr Clarke’s question and said that he was “going to end up having to rule on certain things in the light of your evidence…”. I take this to mean that the rulings would be at the end of the trial, once submissions had been made and evaluated.

40    The test for apprehended bias is 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: Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 244 CLR 427 at [31]. The test is an objective one and does not require consideration of the actual state of mind of the decision-maker.

41    I would not proceed on the basis, put by the respondent, that the decision of the primary judge was a discretionary judgment or was on a matter of practice and procedure.

42    As to the first proposition, the point of the submission was to invoke the principles in House v The King [1936] HCA 40; 55 CLR 499 at 504-5. But it seems to me that application of the relevant principles by the primary judge required no relevant value judgment where there was room for reasonable differences of opinion as explained in Norbis v Norbis [1986] HCA 17; 161 CLR 513 and, more recently, in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408, particularly at [18] (per Kiefel CJ), [43]-[49] (per Gageler J), [85]-[87] (per Nettle and Gordon JJ) and [144]-[147] (per Edelman J). In my opinion, the construct of the hypothetical fair-minded lay observer does not mean that a recusal decision is relevantly discretionary, in the sense that it calls for a value judgment in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right. Instead, the test in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6], the governing and fundamentally important principle, results in an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends: see Norbis v Norbis at [4].

43    As to the second proposition, I do not consider that Melbourne City Investments Pty Ltd v UGL Ltd at the paragraph cited, or otherwise, establishes that a decision on a recusal application is merely a matter of practice and procedure. What the Court of Appeal said in Melbourne City Investments Pty Ltd v UGL Ltd at [64] should be understood, in my opinion, to mean that the reasons of the primary judge in that case were adequate given that they were reasons for a recusal decision on a matter of practice and procedure. The recusal decision bore that character because the recusal application was there made to disqualify the primary judge from hearing a stay application, which was itself a matter of practice and procedure. The reference by the Court of Appeal at [64] to Oswal v Carson [2013] VSC 355 at [48] is in the same vein. Certainly the Court of Appeal did not say that a decision on a recusal application is a discretionary decision so as to engage the principles in House v The King.

44    However, nothing turns on this because in my opinion there is no basis for thinking that the decision below was attended by sufficient doubt.

45    The applicant has not shown it to be arguable that the primary judge might have formed a conclusion on any relevant issue, let alone that there was material from which a fair-minded reasonable observer might think that he might not alter any such conclusion irrespective of the evidence or arguments presented to him.

46    Put differently, I am not persuaded that it is arguable that the primary judge had formed a conclusion or that the primary judge was so committed to such a conclusion that it was incapable of alteration.

47    I note that the primary judge, at [28], said:

Contrary to the Applicant’s submissions, no “settled view” was expressed by me (peremptorily, repeatedly, or otherwise); no ruling was made; nor was the Applicant precluded from making relevant submissions at the end of the hearing, or otherwise.

48    What the decision-maker says about the facts said to constitute apprehended bias is relevant, although not conclusive: Duncan v Ipp [2013] NSWCA 189; 304 ALR 359 at [210]. In the present case I have reached the same conclusion as the primary judge by applying the objective test, to which I have referred, to the facts.

49    In my opinion, little advantage is to be gained from comparing the facts of one case to the facts of another. It is the relevant principles which are important. One principle, referred to by the primary judge at [33], is from Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577 at [112] to the effect that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias. That principle applies in this case as Mr Clarke had, and will have, the opportunity to make submissions to the primary judge.

50    It is also the case that disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgement and this must be “firmly established”: Re JRL; ex parte CJL [1986] HCA 39; 161 CLR 342 at 352 and the cases cited therein.

51    The applicant Mr Clarke has not done this to the level of demonstrating sufficient doubt as to the correctness of the interlocutory judgment, within the first limb of Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; 33 FCR 397.

52    Further, whether or not the suggested apprehension is reasonable must be considered in the context of ordinary judicial practice: see GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser HealthCare (UK) Limited [2013] FCAFC 150 at [36]-[40]. The Full Court there added:

Fourthly, the fair-minded lay observer will also recognise that a professional judge is capable of departing from an earlier expressed opinion.

Fifthly, it is important to recognise that “disqualification flows from a reasonable apprehension that the judge might not decide the case impartially, rather than that he will decide the case adversely to a party”: Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 at [32]; see also Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 at 352.

53    A judge is not expected to sit in silence, Sphinx-like, while arguments are presented; they will often form tentative opinions on matters in issue. Counsel (and, I would add, litigants in person) are ordinarily assisted by hearing those opinions: Johnson v Johnson [2000] HCA 48; 201 CLR 488 at [13]. Contrary to Mr Clarke’s submission, it is not, in my opinion, the relevant principle that if a decision-maker does not explain the basis for any tentative views he or she may express then that will or might give rise to apprehended bias. I was not taken by Mr Clarke to authority for that submission. To the contrary, as Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said in Johnson v Johnson at [13], judges 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 prejudgement.

54    Finally, the observer is not to be confused with the litigant or party or person who has brought the complaint: Helow v Secretary of State for the Home Department [2008] UKHL 62; [2008] 1 WLR 2416 at [2]. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. This is important where the complainer is self-represented.

55    In my opinion, as I have said, no sufficient doubt has been shown as to the conclusion of the primary judge so as to warrant its reconsideration on appeal. I reject the submission made by Mr Clarke that the conclusion of the primary judge is wrong.

56    I do not accept Mr Clarke’s submission that the primary judge failed to give adequate reasons. This submission was not separately developed. To the extent that it was, in my view it is clear, for example, that the primary judge proceeded in the alternative when considering, on the one hand, waiver and, on the other hand, the claim of bias.

57    It is therefore not necessary to consider the alternative basis on which the primary judge would have refused the application, being the issue of (imputed) waiver by reason of delay. I do not therefore need to consider whether the applicant Mr Clarke had a sufficient opportunity on 14 or 15 June 2018 to make the application and whether his reasons for not making the application until 21 August 2018 were valid. The issue would appear to turn on whether or not Mr Clarke needed the full transcript of his evidence to check whether there was a difference or contradiction between the evidence he gave on 13 June 2018 and the evidence he gave on 14 June 2018, or whether he should have made his application at or soon after the events of which he complains, being what the primary judge said to him on 14 June 2018. I note that some of the email correspondence in June 2018 refers to Mr Clarke wishing to listen to the audio recording in order to prepare a written submission. It seems that the question of bias on the part of the primary judge was first raised, at least in terms, by the application dated 13 August 2018 which was then formalised in the application dated 21 August 2018. An affidavit of Mr Clarke affirmed 22 August 2018 was before the primary judge, as also was the material referred to as “N1” in the extract of the applicant’s additional submissions in the reasons of the primary judge at [19]. It was common ground before me that this was the same as “RC1” annexed to Mr Clarke’s affidavit of 6 February 2019.

58    I would add for completeness that I reject Mr Clarke’s submission that the primary judge, at [59], erroneously took into account, or erroneously referred to the principles of waiver being well-known, one principle being that the point must be taken as soon as possible. As I understand it, that principle was the point of Mr Clarke’s affidavit material on his recusal application before the primary judge.

59    Also for completeness, I reject Mr Clarke’s submission that the primary judge, or indeed the respondent in its written submissions before this Court, misunderstood his submissions. The exchange with the primary judge on 14 June 2018 was the foundation of Mr Clarke’s claim of bias on the part of the primary judge and Mr Clarke’s written ground, which the primary judge set out at [12], did not in terms refer to Mr Clarke wishing to adduce evidence explaining that what he said on 13 June 2018 was not different to what he said on 14 June 2018 as part of that ground. As I have said, the opportunity remains open to Mr Clarke to make submissions to the primary judge on this and other matters.

60    I place no weight on the second limb of Décor Corporation Pty Ltd v Dart Industries Inc at 398-9, concerning the need to show substantial injustice if leave were refused. I place no weight on it in light of the statement in Michael Wilson & Partners at [79] and [86]. These statements are to the effect that an applicant who does not seek to challenge the refusal of a recusal application by seeking leave to appeal may be held to have given up the point.

Conclusion and orders

61    The application for leave to appeal is refused. Both parties accepted that no order for costs should be made.

Associate:

Dated:    24 April 2019