Federal Court of Australia

Shaw v The Official Trustee in Bankruptcy of the Australian Financial Security Authority [2020] FCA 1570

ORDERS

THE COURT ORDERS THAT:

1.    The oral application by the applicant that Wigney J be disqualified from continuing to hear this matter be dismissed.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

WIGNEY J:

1    The applicant in this matter, Mr John Shaw, commenced proceedings against the respondent, the Official Trustee in Bankruptcy, in October 2019. The matter has been the subject of many case management hearings. At many of those case management hearings, Mr Shaw aired his complaints about the Trustee’s conduct of the proceedings. Eventually, in July 2020, Mr Shaw filed an interlocutory application which sought, amongst other things, an order striking out many of the paragraphs of the Trustee’s defence and an order for summary judgment. That interlocutory application was made returnable on 13 August 2020, though Mr Shaw disputes that it was listed for hearing on that day. In any event, on that day, Mr Shaw applied for an adjournment of his application. That application was, in effect, granted. The application was adjourned to 8 October 2020, being the date on which Mr Shaw’s principal application was listed for hearing.

2    Mr Shaw has now applied for me to disqualify myself from hearing his application on the basis of apprehended bias. He contends, in effect, that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of his application. The main basis of that application would appear, at least from the written submissions filed by him, to be that a fair-minded lay observer might reasonably apprehend that I was predisposed against him as a result of what occurred at the interlocutory hearing on 13 August 2020. He contended, in short, that he had been denied procedural fairness, “railroaded” and treated with contempt, and that I had permitted the Trustee’s legal advisers to “ambush” him. In oral submissions made in support of his application, Mr Shaw broadened his submissions to encompass my conduct of the hearing essentially right from the start. He contended that he got the impression that I was not giving full attention to his complaints and submissions.

3    For the reasons that follow, I do not propose to disqualify myself from the hearing of Mr Shaw’s application. I am not satisfied or persuaded that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of these proceedings, either on the basis of what occurred at the case management hearing on 13 August 2020 or any other case management hearing, or otherwise.

Relevant principles – apprehended bias

4    In Rush v Nationwide News Pty Limited (No 8) [2019] FCA 1382 at [16]-[29], I summarised and discussed the applicable principles where a litigant applies for a judge to disqualify himself or herself on the grounds of apprehended bias. What follows is an adaptation of what was said in that judgment.

5    The relevant principles in relation to apprehended bias are well settled. In Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337, Gleeson CJ, McHugh, Gummow and Hayne JJ conveniently summarised the principles in the followings terms (at [6]-[8]):

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.

The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.

The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

(Footnotes omitted.)

6    The two-step test in Ebner requires the identification of what might affect the judge’s impartiality and its logical connection with the possibility of departure from impartial decision-making in the case at hand.

7    Ebner concerned cases where the first step was said to have been satisfied because the judge had a direct or indirect pecuniary interest in the cause. Mr Shaw did not suggest that I had any direct or indirect interest in the litigation. Nor was there any suggestion that I had any association with any party or witness. Rather, as best I can gather, the asserted appearance of impartiality is said to flow entirely from my conduct of case management and interlocutory hearings in this proceeding. Mr Shaw appears to contend that a fair-minded lay observer might reasonably apprehend from what occurred at those case management and interlocutory hearings that I had or might have a predisposition against him for some reason and that I therefore might not bring an impartial mind to the resolution of his case. More will be said about Mr Shaw’s contentions in that regard later.

8    The fair-minded lay observer is “postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues”: Johnson v Johnson [2000] HCA 48; 201 CLR 488 at [12]. While the fictional or hypothetical observer is not a lawyer and is not assumed to have a detailed knowledge of the law, they are taken to be reasonable and to not be “wholly uninformed and uninstructed about the law in general or the issue to be decided”: Johnson at [53] (per Kirby J citing R v George (1987) 9 NSWLR 527 at 536, per Street CJ). It is necessary to attribute to the fair-minded lay observer knowledge of all of the circumstances of the case: CUR24 v Director of Public Prosecutions [2012] NSWCA 65; 83 NSWLR 385 at [39].

9    The “reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice”: Johnson at [13]. That includes “the exigencies of modern litigation” and modern case management practices: Johnson at [13]. The plurality in Johnson noted the following in that regard (at [13]):

… At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent 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. …

10    Similarly, in British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; 242 CLR 283, Heydon, Kiefel, and Bell JJ referred to the active role a modern judge is likely to play in case management and said (at [140]) that “[t]rial judges are frequently required to make rulings excluding irrelevant and prejudicial material from evidence [and] [r]outine rulings of this nature are unlikely to disqualify the judge from further hearing the proceeding”.

11    In Doggett v Commonwealth Bank of Australia [2019] FCAFC 19, the Full Court (Kerr, Davies and Thawley JJ) said as follows in relation to claims of apprehended bias based on rulings in interlocutory proceedings or judgments (at [11]):

Claims of apprehended bias arise not infrequently, as they have in this appeal, in respect of interlocutory proceedings. The usual position in relation to interlocutory proceedings is that an apprehension of bias is not per se manifested by an unfavourable finding. That is because often there will be instances prior to a final decision where a judge will require steps to be taken or not taken which disappoint one side or another in a proceeding. It is inherent in the interlocutory process that such preliminary decisions are made. Unfavourable findings, in such circumstances, are not to be taken by a fair-minded person as an expression that the judge has other than an impartial and unprejudiced mind in relation to the substantive proceeding. …

12    I should add in this context that in AJH Lawyers Pty Ltd v Careri [2011] VSCA 425; 34 VR 236, the Court of Appeal of the Supreme Court of Victoria, noted, amongst other things, that while judges should normally give an applicant reasonable opportunity to make submissions, judges do not have to devote unlimited time to listening to unmeritorious arguments; sometimes a brief hearing will suffice (at [25]).

13    In Re J.R.L.; Ex parte C.J.L [1986] HCA 39; 161 CLR 342, Mason J said the following in relation to allegations of apprehended bias based on the conduct of a judge during the litigation, which would include statements and findings made in interlocutory judgments (at 352):

It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, 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.

(Footnotes omitted.)

14    In the same case, Wilson J said (at 359-360):

A court of review must be careful not to exaggerate the significance of actions or statements made by a judge in the course of a proceeding. There must be “strong grounds” (Reg. v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd.) for inferring the existence of a reasonable suspicion.

(Footnote omitted.)

15    The requirement that an apprehension of bias, based on judicial conduct, be “firmly established” was also emphasised in Laws v Australian Broadcasting Tribunal [1990] HCA 31; 170 CLR 70 at 100 (per Gaudron and McHugh JJ) and British American Tobacco at [45], where French CJ said it “gives content to the requirement that an apprehension of bias, in that class of case, be reasonable” and [71] (per Gummow J). French CJ and Gummow J were in dissent in British American Tobacco, though the dissent mainly turned on the application of the facts to the relevant principles.

16    Apprehended bias will not generally be established by “pointing to adverse findings” in the judgment, even where the findings involve strong adverse credit findings: Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; 332 ALR 128 at [234] (per Ward JA, Basten JA and Emmett AJA agreeing). Similarly, the fact that “a judge has not accepted submissions, or has taken a view of evidence in a way that one of the litigants disagrees with or asserts is wrong in principle, is not enough to establish a reasonable apprehension of bias”: Knaggs v Director of Public Prosecutions (NSW) [2007] NSWCA 83; 170 A Crim R 366 at [95]; see also SZCOS v Minister for Immigration & Citizenship [2008] FCA 570 at [36]; Spalla v St George Wholesale Finance Pty Ltd [2006] FCA 416 at [14]; DOQ17 v Australian Financial Security Authority (No 2) [2018] FCA 1270; 363 ALR 681 at [33]. In Hamod v State of New South Wales (No 11) [2008] NSWSC 967, Harrison J said (at [20]) that unfavourable decisions against a party “are not, and can never be, without more sufficient to support or establish the existence or manifestation of an objective apprehension of bias”.

17    Where “numerous separate aspects are relied upon to suggest a reasonable apprehension of bias, it will usually be necessary to assess the individual elements separately and then cumulatively”: Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; 78 NSWLR 499 at [176] (per Basten JA, Allsop P and Macfarlan JA agreeing); see also Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577 at [114]; IOOF Australia Trustees Ltd v SEAS Sapfor Forests Pty Ltd [1999] SASC 249; 78 SASR 151 at 192; Tarrant J, Disqualification for Bias (Federation Press, 2012) at p 301.

evidence tendered in support of the application

18    Mr Shaw did not file or read any affidavit evidence in support of his application that I disqualify myself. He did, however, tender a number of documents. Those documents, which were admitted without objection, included the following.

19    First, a letter dated 15 July 2020 that was said to have been sent to the Chief Justice and the Registry complaining about my conduct. The complaints recorded in that letter largely correspond to those that were the subject of his submissions in support of his application. I should observe, though perhaps nothing turns on this, that that letter had not been brought to my attention before today.

20    Second, some email correspondence between Mr Shaw and the Registry which immediately preceded the case management hearing on 13 August 2020. That correspondence dealt in short with the question of the basis upon which Mr Shaw’s interlocutory application had been listed on that day.

21    Third, the interlocutory application filed by Mr Shaw on 23 July 2020, or more significantly, the “Notice of Filing and Hearing” which was created when the interlocutory application was filed. Mr Shaw contended that the Notice demonstrated that the interlocutory application was only listed for a case management hearing on 13 August 2020.

22    Given that Mr Shaw’s application broadened to deal essentially with my conduct of his case from the very start, the transcripts of the case management hearings that occurred on 21 November 2019, 11 June 2020, 9 July 2020 and 13 August 2020 were tendered by consent, lest there be any dispute as to exactly what occurred at those case management hearings.

23    Finally, some correspondence between Mr Shaw and the Court concerning the listing of the interlocutory application on 13 August 2020 was also tendered by consent.

SHORT CHRONOLOGY OF THE PROCEEDING TO DATE

24    Given the nature of the contentions Mr Shaw made in support of his application for me to disqualify myself, it perhaps assists to provide a brief chronology of the proceedings to date. As has already been indicated, Mr Shaw filed his application in the Court along with a supporting affidavit on 8 October 2019. The first case management hearing was listed before me on 21 November 2019. Mr Shaw appeared unrepresented and Mr Christopher Brown of counsel appeared for the Trustee. In due course, orders were made for the matter to proceed on pleadings, for Mr Shaw to file and serve his statement of claim on or before 24 December 2019 and for the Trustee to file and serve its defence on or before 17 February 2020.

25    The matter was listed for a further case management hearing on 28 February 2020. Mr Shaw, in due course, filed his statement of claim, albeit slightly later than he had been ordered to file it. On 17 February 2020, some consent orders were made, the detail of which need not be considered for the purposes of this application.

26    The Trustee filed its defence on 3 March 2020. Following the filing of the Trustee’s defence, Mr Shaw filed some documents in the Registry. Those documents included a document which included Mr Shaw’s “comments” in relation to the Trustee’s defence and a document purporting to contain Mr Shaw’s submissions relating to the conduct of the Trustee. It is unnecessary to consider the contents of those document. It should be noted, however, that Mr Shaw had not been ordered to file, or granted leave to file, those documents.

27    On 11 March 2020, consent orders were made vacating the case management hearing on 12 March 2020 and listing the matter for a further case management hearing on 26 March 2020. On 25 March 2020, consent orders were again made vacating the case management hearing on 26 March 2020. The orders made on 25 March 2020 also required the parties to file their evidence and listed the matter for a further case management hearing on 11 June 2020. Subsequent consent orders extended the time by which the evidence was to be filed.

28    In late May 2020, Mr Shaw filed a number of documents. Those documents contained a catalogue of Mr Shaw’s complaints concerning the Trustee’s conduct in the administration of his estate and these proceedings. It is again unnecessary to discuss the content of these documents. It should, however, once again be noted that they were not documents that Mr Shaw had been directed or ordered to file.

The case management hearing on 11 June 2020

29    The case management hearing which occurred on 11 June 2020 is of some significance to this application. Mr Shaw appeared for himself at that hearing and Mr Brown again appeared for the Trustee. The case management hearing lasted for over an hour. That was essentially because I worked through the long list of queries, issues and complaints that Mr Shaw had included in the documents previously filed by him to which reference has already been made. I endeavoured to address Mr Shaw’s queries and issues and both Mr Shaw and Mr Brown made submissions in respect of the complaints. Consideration was also given to the nature and scope of the proceedings. I ultimately made a number of orders concerning the further conduct of the proceeding, including orders concerning the filing of Mr Shaw’s evidence in reply, the potential amendment of his statement of claim and the filing of outlines of submissions concerning the nature and scope of the envisaged hearing of the matter. The matter was listed for a further case management hearing on 13 August 2020.

30    Within weeks of that lengthy case management hearing, Mr Shaw sent further voluminous correspondence and submissions to the Court, most of it via the Registry, concerning the conduct of the proceedings. It is important to emphasise that the material sent by Mr Shaw was not responsive to the orders that had been made at the case management hearing on 11 June 2020. Rather, it again mostly raised a series of complaints and queries concerning the Trustee’s conduct of the proceedings. Most of those complaints or queries were essentially the same or similar to those which had been addressed at the case management hearing on 11 June 2020. Those complaints included complaints about the Trustee’s defence. The matter was listed for a case management hearing on 9 July 2020 to address the deluge of further material that had been received from Mr Shaw.

The case management hearing on 9 July 2020

31    It is unnecessary to recite in any detail what occurred at the case management hearing on 9 July 2020. The transcript of that case management hearing has been tendered and speaks for itself. It suffices to say that I put to Mr Shaw, in firm but not discourteous terms, the fact that many of the issues or queries he had raised in the material he had sent to the Court after the 11 June 2020 case management hearing appeared to be essentially the same or similar to those that had been addressed at some length at that case management hearing. I nevertheless again went through the list of issues that Mr Shaw had raised, including the orders that he submitted that the Court should make, and gave him my preliminary views on those issues. I also pointed out to Mr Shaw that he should desist from unilaterally sending the material to the Court without leave. I then invited Mr Shaw to make whatever brief submissions he wanted to make in relation to those issues.

32    In the course of those submissions, Mr Shaw foreshadowed making an application to strike out the Trustee’s defence. At the conclusion of Mr Shaw’s submissions, I said the following in relation to the foreshadowed strike out application:

Yes. Very well. I will come back to you in a moment. Mr Brown, I don’t propose to make any of the orders that Mr Shaw has agitated in his submissions today. I’ve read your submissions. I don’t need to hear from you orally, unless there’s anything specifically you wish to raise with me. The only thing I was going to say to Mr Shaw was that if, as he has foreshadowed, he wants to file some form of strike out application or, indeed, any application seeking any order, obviously, on the last occasion I made an order that that should be done by today. If he does propose to file anything seeking any order, including strike out, he should do so as soon as possible. And what I would envisage at this stage is for it to be listed at the next – on the date that the matter is listed for case management hearing, in any event, on 13 August 2020, so I wasn’t going to make any further order today. But just to make it clear, that if Mr Shaw does file any interlocutory application, it will most likely be listed on that day and possibly for hearing. Now, aside from that, is there anything in particular you wish to raise over and above what you’ve put in your written submissions?

33    After hearing some brief submissions from Mr Brown, I then said:

Well, Mr Shaw, I don’t propose to make any of the orders that you’ve sought today. The matter is listed for a case management hearing on 13 August. I think that, by that time, you will have been – well, you haven’t served any further evidence. I – you’re already – if you do propose to serve any further evidence, you are in default of that timetable. But even if you are late, by 13 August you will have served any further evidence. You will have the opportunity to file any sort of interlocutory application if you – that you – seeking orders that will be – and that will be determined on 13 August. And we can agitate any lack of understanding that either you or Mr Brown have in relation to the pleadings on that occasion. But I don’t propose to make any additional orders today. I’ve already made detailed orders in advance of the next case management hearing.

If you want to file an application, I can’t stop you from doing so. It will be most likely heard at that case management hearing. But I don’t think, to be blunt with you, that your reliance on the Civil Procedure Act and mediation and those sorts of issues is really not going to advance things at this late stage of the proceedings and you really have to get on with filing your evidence. And at the next case management hearing we will be considering and resolving the scope of the final hearing. So if there’s any aspects of the defence that you don’t understand then you can ventilate it, through me, at that case management hearing and I will do the best I can to try and resolve it.

34    Mr Shaw filed his foreshadowed interlocutory application to strike out the Trustee’s defence on 23 July 2020. It was given a return date of 13 August 2020, which was the date that the matter was next back before the Court for case management.

Mr Shaw’s strike out application and the hearing on 13 August 2020.

35    As has already been noted, while Mr Shaw’s interlocutory application was made returnable at the case management hearing on 13 August 2020, Mr Shaw disputed that his application was listed for hearing on that date. He claimed that he received some notification from the Registry that his interlocutory application was not listed for hearing on 13 August 2020, but was only listed for case management. He did not, however, tender any correspondence received by him to that effect. Nor was it entirely clear what correspondence Mr Shaw was referring to in that regard. It may be, however, that he was referring to the Notice which, as previously indicated, he submitted suggested that the interlocutory application was only listed for case management on 13 August 2020.

36    Whatever may have been conveyed by the Notice, however, it is tolerably clear from what was said at the case management hearing on 9 July 2020 that Mr Shaw was on notice that any interlocutory application that he filed after that case management hearing would most likely be heard at the next case management hearing on 13 August 2020. It is also clear that by 7 August 2020, at the very latest, Mr Shaw was put on notice that his interlocutory application was listed for hearing on 13 August 2020. That is because my associate sent an email to the parties, including Mr Shaw, concerning the arrangements for the hearing which was to take place via video link given the continuing restrictions imposed as a result of the COVID-19 pandemic. That email clearly noted that the matter was listed for interlocutory hearing. The Registry also sent an email to Mr Shaw on 11 August 2020 concerning the timing of the hearing. That email also stated that the matter had been listed for interlocutory hearing.

37    The Trustee also plainly understood that Mr Shaw’s interlocutory application was listed for hearing on 13 August 2020. That is because the Trustee filed written submissions on the afternoon of 12 August 2020 which dealt with Mr Shaw’s interlocutory application. It was not until the evening of 12 August 2020, after the Registry was closed, that Mr Shaw sent an email to the respondent’s lawyers and the Registry advising that he would be applying for an adjournment of the hearing on the basis that he had only set aside enough time for what he expected to be a case management hearing. It may perhaps be inferred that Mr Shaw’s foreshadowed adjournment application was prompted by his receipt of the Trustee’s written submissions.

38    When the matter was called on for hearing on 13 August 2020, consistent with the correspondence he had sent the previous evening, Mr Shaw applied for an adjournment of the hearing of his interlocutory application on the basis that he did not expect that there would be a “full-blown hearing” on that day. He claimed that he was not prepared to proceed and that he had to go to work. He did not adduce any evidence in support of his adjournment application. The Trustee opposed the adjournment application and applied for an order that the principal application be set down for hearing.

39    In all the circumstances, and particularly given the delays that had already been experienced in the matter, the Trustee’s application that the principal application be set down for hearing was acceded to. The matter was set down for hearing on 8 October 2020. Mr Shaw was then essentially given two options in respect of his interlocutory application. The first option was to proceed with his interlocutory application on that day; that is, 13 August 2020. The second option was that his interlocutory application would be set down for hearing on the same day as the hearing of his principal application. Mr Shaw was advised, in that context, that the Court had virtually no other availability or capacity to entertain his application before that day.

40    Mr Shaw submitted that neither of those options was acceptable. He indicated that he was not able to, or prepared to, proceed with his interlocutory application on 13 August 2020. He also opposed it being set down for hearing on the same day as the hearing of the principal application and made submissions as to why that was not appropriate. He contended, amongst other things, that his preparation for the hearing of his principal application would be prejudiced. That was said to be because, if he was successful or even partially successful in his strike out application, he would then need to spend time dealing with pleadings that had been struck out.

41    I ultimately did not require Mr Shaw to proceed with his interlocutory application on 13 August 2020. In effect, therefore, his adjournment application was acceded to. I decided, however, that the appropriate course was to list his interlocutory application for hearing on 8 October 2020, the first day of the hearing of his substantive application. I did not accept that Mr Shaw would be prejudiced in any material way by that listing. If the outcome of his interlocutory application gave rise to any potential prejudice, that was a issue which would be able to be appropriately dealt with at the time. I also considered that it would be unacceptable to delay the hearing of the substantive application to accommodate the separate hearing of Mr Shaw’s interlocutory application.

MR SHAW’S ARGUMENTS CONCERNING DISQUALIFICATION FOR BIAS

42    Mr Shaw’s written submissions in support of his application that I disqualify myself referred at length to what occurred at the hearing on 13 August 2020, though as noted his arguments expanded to include the entire case management of the proceedings.

43    In his written submissions, Mr Shaw argued that he had been denied procedural fairness and “railroaded”. He claimed that the “pattern” of the case management hearings had been to allow counsel for the Trustee to make “unsubstantiated submissions [and] bare assertions without constraint” and for me to “cut [him] short” when he tried to object or respond. He also contended that I “push[ed] [him] into corners”, treated him with “obvious contempt” and allowed counsel for the Trustee to “ambush” him and put him “under duress by filing last minute submissions”.

44    In his oral submissions, Mr Shaw contended that he had endeavoured to bring to my attention complaints that he had about the Trustee’s conduct in the proceedings to date and that he had done so with a view to simplifying the matters. He submitted that he had gained the impression from what occurred at the case management hearings that I was not taking in what he was submitting in that regard and was being dismissive of him. He also said that he formed the impression that I thought he was trying to create issues and that he was complaining about nothing. He also went so far as to claim that “right from the start” I was not prepared to entertain his complaints and submissions concerning the Trustee’s conduct of the proceedings.

45    Mr Shaw acknowledged, in his written submissions, that the relevant question was not what he thought, but what a reasonably informed lay observer might think.

Consideration

46    I do not propose to disqualify myself. I do not accept that a fair-minded lay observer, fairly appraised of the nature and circumstances of this proceeding, might reasonably apprehend that I might not bring an impartial mind to the resolution of either Mr Shaw’s interlocutory application or principal application. The fair-minded lay observer would consider what occurred at the hearing on 13 August 2020 in the context of the entire chronology of the proceedings to date and, in particular, in the context of what occurred at the case management hearings on 11 June and 9 July 2020.

47    Mr Shaw has also been given ample opportunity to ventilate the issues and complaints that he had with the Trustee’s defence of the proceedings at the many case management hearings that have been conducted in this matter. The conduct of the case management hearings, fairly considered, provides no support whatsoever for any supposed “pattern” whereby the Trustee’s counsel was given free reign and Mr Shaw’s submissions had been ignored or rejected without any genuine consideration. Indeed, quite to the contrary. That is particularly evident by what occurred at the case management hearing on 11 June 2020, which as I have said, took well over an hour and dealt with a long list of Mr Shaw’s grievances and complaints.

48    It follows that a fair-minded lay observer, fairly appraised of all the circumstances, would not perceive the “pattern” alleged by Mr Shaw. Nor would the fair-minded lay observer consider that the approach taken to Mr Shaw’s application for an adjournment of his interlocutory application at the hearing on 13 August 2020 amounted to him being “railroaded”, or “push[ed] into corners”, or treated with “obvious contempt”.

49    It may be accepted that Mr Shaw himself was not happy with the outcome of the hearing on 13 August 2020 and that he considers that the outcome was unfair to him. It may also perhaps be accepted that Mr Shaw himself perceived that he had not been given a fair hearing either on that occasion, or indeed, in any of the earlier case management hearings. It does not follow, however, that a fair-minded lay observer who was aware of all the circumstances and fairly considered the conduct of all the case management hearings, would perceive that Mr Shaw was treated unfairly, or that the outcome of any of those case management hearings, and in particular, the case management hearing on 13 August 2020, was in fact unfair, such that the fair-minded lay observer might apprehend that I might bring an impartial mind to the resolution of either his interlocutory application or the principal proceeding.

50    It should perhaps be emphasised in this context that Mr Shaw is obviously still able to prosecute his interlocutory application and no decision has been made in relation to it. In effect, he was granted the adjournment of that interlocutory application which he sought on 13 August 2020. While he feels aggrieved that the interlocutory application has been listed for hearing today, the first day of the hearing of his principal application, that provides no proper basis for an apprehension of bias, either alone or in conjunction with any of the other matters relied on by Mr Shaw.

51    As the authorities referred to earlier indicate, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice and the exigencies of modern case management practices. A reasonable apprehension of bias is not generally manifested by an unfavourable finding in the course of interlocutory or case management hearings. The fair-minded lay observer will appreciate that the exigencies of modern litigation are such that judges have to make decisions at case management hearings that are unfavourable to one of the parties and that judges, on occasion, have to act firmly and emphatically if a party does not comply with procedural orders, or otherwise acts in a way that may delay or prolong the proceeding.

52    As indicated earlier, modern case management practices and the exigencies of modern litigation also do not permit litigants to engage the Court in prolonged and repetitive applications. That is one of the reasons why an apprehension of bias based on judicial conduct in the course of case management must generally be firmly established.

53    In all the circumstances, I do not consider that there is any basis for Mr Shaw’s claim of apprehended bias. There is no basis for me to disqualify myself from hearing his case.

CONCLUSION

54    Mr Shaw has not established any basis upon which I should disqualify myself from hearing his case. His application to that effect is accordingly dismissed.

Associate:

Dated:    8 October 2020