FEDERAL COURT OF AUSTRALIA

COV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 670

ORDERS

THE COURT ORDERS THAT:

1.    The oral application for disqualification made at the case management hearing on 2 June 2021 be dismissed.

2.    The hearing listed at 2.15 pm on Wednesday, 16 June 2021 be vacated.

3.    Leave to issue the subpoena to produce documents lodged with the Court on 31 May 2021 be refused.

4.    The first respondent notify the appellant of any documents listed in the subpoena which the first respondent is willing to produce and the first respondent produce those documents by 4 pm on Thursday, 10 June 2021.

5.    The appellant issue any notice to produce on which she seeks to rely in light of the documents produced by the first respondent by 4 pm on Thursday, 17 June 2021.

6.    The first respondent notify the appellant and the Court of any objections which are taken to the notice to produce by 4 pm on Thursday, 24 June 2021.

7.    The matter be listed for a further case management hearing at 2.15 pm on Monday, 28 June 2021 at which time any objections to the notice to produce will be heard and timetabling orders for the progress of the appeal will be considered.

8.    Costs be reserved.

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

REASONS FOR JUDGMENT

FARRELL J:

1    These are reasons for refusing an oral application made by counsel for the appellant at a case management hearing held on Wednesday, 2 June 2021 that I disqualify myself from these proceedings on the basis of apprehended bias.

2    The appellant relied on an affidavit which she swore on 2 June 2021, attachments to which are referred to as exhibits with the designation “COV18-X” (the appellant’s affidavit). As the materials attached to that affidavit are not a complete record of correspondence with the Court, I have also had recourse to emails between my associate and the appellant’s counsel, Mr Williams, and Ms Saunders, a solicitor employed by Minter Ellison, the solicitors for the first respondent (Minister).

3    The Minister was represented at the case management hearing by Ms Hooper of counsel.

BACKGROUND

4    On 9 September 2020, a Judge of the Federal Circuit Court of Australia (FCCA) dismissed an application made by the appellant for judicial review of a decision made by the Immigration Assessment Authority on 10 May 2018 affirming a decision of a delegate of the Minister not to grant the appellant a Safe Haven Enterprise visa. The FCCA Judge gave ex tempore reasons. The orders made on 9 September 2020 indicate that Mr R Turner of Turner Coulson Immigration Lawyers appeared for the appellant at the hearing on that day.

5    The appellant filed a notice of appeal on 7 October 2020 which indicates that the notice was prepared by Mr Williams who was acting on a direct access brief. The notice of appeal stated that: “The reasons for judgment were not available at the time of filing the notice of appeal and the appellant intends to amend the notice of appeal once the reasons for judgment are available”. Four grounds of appeal were set out in the notice. The appellant filed a supporting affidavit sworn on 6 October 2020 which attached the orders made by the FCCA Judge on 9 September 2020 and gave evidence that the reasons for judgment were not then available.

6    The FCCA Judge’s associate’s certification of a transcript of the oral reasons given on 9 September 2020 published as COV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2547 would indicate that the written reasons were published on 14 October 2020.

7    On 20 October 2020, Registrar McCormick made timetabling directions (exhibit COV18-1). The directions made no provision for the filing of an amended notice of appeal. The directions included:

(a)    A direction making provision for the filing of a notice of objection to competency within seven business days;

(b)    A direction dispensing with the application of rr 36.51-36.56 of the Federal Court Rules 2011 (Cth);

(c)    Directions in relation to the preparation of an appeal book. Direction 4 required the lawyer for the appellant or the Minister (if the appellant was not represented by a lawyer) to file an appeal book “twenty (20) business days prior to the hearing date”;

(d)    Directions in the alternative (depending on whether or not the appellant was represented on the appeal) in relation to the provision of written outlines of submissions. Relevantly, direction 6 provided as follows:

If the appellant is represented:

(a)    The lawyer for the appellant file and serve a written outline of submissions no later than twenty (20) business days before the hearing date; and

(b)    The Minister file and serve a written outline of submissions no later than ten (10) business days before the hearing date.

(e)    Direction 8 provided that:

Outlines of submissions not to exceed 10 pages in length, including any annexures and be easily legible using a font size of at least 12 points and one and a half line spacing throughout.

(f)    A direction that the lawyers for the Minister notify each other party in writing of the date set down for the hearing of the appeal and of the directions.

8    The Court’s electronic file indicates that the Minister filed an appeal book on 8 December 2020. The FCCA Judge’s published reasons appear at AB216-230. There is no evidence concerning when the appeal book was served.

9    On Monday, 22 March 2021 at 3.59 pm, my associate sent an email to Mr Williams and the Minister’s solicitors advising that this matter had been allocated to my docket and requesting that the parties confirm the dates in June 2021 that they were mutually available for a hearing and the estimated length of the hearing. The parties were asked to respond by 4 pm on Thursday, 25 March 2021 (exhibit COV18-2).

10    On Friday, 26 March 2021 at 1.23 pm, Ms Saunders, sent an email to my associate and Mr Williams in which she apologised for the delay in her response and said that she had made attempts to contact Mr Williams in order to provide mutually available dates but that she had not received any response from Mr Williams. She confirmed that the Minister’s unavailable dates were 21-24 June 2021 and the estimated length of the hearing was half a day. On the same day, at 2.01 pm, Mr Williams sent an email to Ms Saunders and my associate as follows:

Dear Associate.

My unavailable dates are 7; 14; 21; 28 June.

My apologies Ms Saunders for not coming back sooner.

That correspondence is not annexed to the appellant’s affidavit.

11    On Monday, 30 March 2021 at 4.16 pm, my associate sent an email to Mr Williams and Ms Saunders (exhibit COV18-3) as follows (emphasis in the original):

Dear practitioners,

This matter has been listed for hearing at 2.15 pm on Wednesday, 16 June 2021.

Pursuant to the orders made by Registrar McCormick on 20 October 2020, please note the following due dates for hearing materials.

I note there is no order requiring the parties to provide a list of authorities. However, Justice Farrell would appreciate if the parties would each file a list of their respective authorities by 10 June 2021, being three business days before the hearing.

Further details will be provided closer to the date.

12    No submissions were filed by the appellant on or before Tuesday, 18 May 2021. No correspondence was received by chambers from the appellant acknowledging or explaining the failure to comply with Registrar McCormick’s direction, nor was any request made for an extension of time in which to comply or to convene a case management hearing with respect to the timetable for preparation for the hearing.

13    In the appellant’s affidavit, the appellant deposed as follows:

10.    On 18 May 2021, my barrister requested that I come into his office to sign court documents. Regrettably, due to work and study commitments, I was unable to meet with my barrister until 25 May 2021. I apologise to the Court for any inconvenience.

11.    On 24 May 2021, Charlotte Saunders (solicitor for the Minister) sent my barrister an email noting my submissions were due to be filed on 24 May 2021 [sic] and requested that I confirm when my submissions would be filed.

12.    On 24 May 2021, my barrister sent the solicitor an email advising that I was in the process of preparing an affidavit and the submissions and affidavit would be filed later that day.

13.    Exhibited and attached as “COV18-4” is a copy of the email exchange between by my barrister to the solicitor to the Minister, dated 24 May 2021.

14.    On 25 May 2021, I came into the chambers of my barrister and signed the court documents. I had to arrange payment of the filing fee which was made on 26 May 2021. My barrister was called to an urgent hearing in Ballina, NSW on 27 May 2021.

14    Ms Saunders sent an email to Mr Williams on Monday, 24 May 2021 at 9.19 am (exhibit COV18-4). It was not copied to my associate. Ms Saunders’ email said:

Dear Mr Williams

I refer to the above matter in which the appellant’s submissions were due to be filed on Wednesday 19 May 2021 [sic].

I note that no submissions have been filed to date and I would be grateful if you could confirm when you intend to file submissions in this matter.

Mr Williams’ reply is not in evidence, notwithstanding what was said in the appellant’s affidavit at [12] and [13].

15    The next correspondence occurred on Wednesday, 26 May 2021 at 4.54 pm, when my associate sent an email to Ms Saunders and Mr Williams (exhibit COV18-5) as follows (emphasis in the original):

Dear practitioners,

This matter is listed for hearing before Justice Farrell at 2.15 pm on Wednesday, 16 June 2021.

Justice Farrell notes that, pursuant to the orders made by Registrar McCormick on 20 October 2020, the appellant’s written outline of submissions was due to be filed and served on 18 May 2021. The parties should promptly advise how they intend to progress in light of this delay in filing.

16    On Thursday, 27 May 2021:

(a)    At 9.08 am, Mr Williams sent an email to my associate copied to Ms Saunders. That email is not exhibited to the appellant’s affidavit. The email was as follows:

Good morning Associate.

The appellant is in the process of filing an interlocutory application to rely on a proposed amended notice of appeal, given the reasons for judgment were not available at the time of filing.

The appellant can also indicate to the court that he will be seeking discovery of documents regarding the appellants entry into Australia and new grounds based on this information.

I anticipate that the amending documents will be filed tomorrow, all things being equal.

I am also unavailable on 16 June 2021.

If I can be of any further assistance, please do not hesitate to contact me.

(b)    At 12.46 pm, my associate sent an email to Mr Williams and Ms Saunders (exhibits COV18-7 and COV18-8) to which was attached a copy of the directions made by Registrar McCormick on 20 October 2020. The email was as follows (emphasis in the original):

Dear practitioners,

Having regard to the appellant’s substantive failure to comply with timetabling orders (attached), Justice Farrell requires the parties’ attendance at a case management hearing. Her Honour notes that the published reasons for judgment delivered by Judge Street in proceedings SYG1398/2018 were provided to the appellant on 14 October 2020.

Justice Farrell is minded to list the case management hearing at either 9.30 am or 2.15 pm on Wednesday, 2 June 2021. The parties should confirm their mutual availability promptly.

17    On Friday, 28 May 2021 at 12.43 pm, Ms Saunders advised by email to my associate which was copied to Mr Williams that either time on 2 June 2021 was suitable to the Minister. That email appears in exhibit COV18-7 although it is crossed through.

18    On Monday, 31 May 2021:

(a)    At 9.05 am, my associate sent an email to Mr Williams and Ms Saunders (exhibit COV18-8). It said (emphasis in the original):

Dear practitioners,

Should chambers not receive a response from Mr Williams by 2 pm today this matter will be listed for a case management hearing at 2.15 pm on Wednesday, 2 June 2021.

(b)    Mr Williams replied to my associate and Ms Saunders at 9.34 am (exhibit COV18-8) as follows:

Dear Associate -

I’m in court this morning as I was last week.

I am waiting to hear from other matters re availability - I will confirm when I’m back in chambers and by the latest close.

If I can be any further assistances, please do not hesitate to contact me.

(c)    The Court’s e-lodgement portal discloses that the following documents were lodged with the Court for filing at 3.31 pm AEST:

(i)    An interlocutory application dated 25 May 2021. Under the heading “Interlocutory orders sought” it said:

Exhibited and attached as “[the second exhibit]” to the affidavit by the appellant is the proposed amended notice of appeal, dated 24 May 2021.

(ii)    An affidavit in support sworn by the appellant on 25 May 2021 with exhibits including the second exhibit, as to which see [19] below.

(iii)    An undated subpoena to produce documents directed to the Minister; and

(iv)    A signed notice of a constitutional matter dated 21 May 2021.

(d)    Mr Williams sent a further email to my associate and Ms Saunders at 3.34 pm advising that he was available at 2.15 pm on Wednesday, 2 June 2021. That email is not attached to the appellant’s affidavit.

(e)    At 5.04 pm, my associate sent an email to Mr Williams and Ms Saunders (exhibit COV18-10). The email relevantly provided as follows (emphasis in the original):

Dear practitioners,

This matter is listed for a case management hearing before Justice Farrell at 2.15 pm on Wednesday, 2 June 2021.

Provision of documents

By 2 pm on Tuesday, 1 June 2021, the parties should provide to chambers via email:

•    Proposed consent or competing orders (in Word format);

•    Any other documents upon which the parties seek to rely at the hearing; and

•    Details of who will be appearing at the hearing.

Physical documents are not required and should not be provided.

Microsoft Teams details

This hearing will proceed via Microsoft Teams video conference, which can be accessed using the following details. The link can also be forwarded to others who wish to observe or participate.

19    It is useful to note that:

(a)    The first exhibit to the appellant’s affidavit in support is a copy of the FCCA Judge’s reasons. The appellant relied on the fact that those reasons had not been available when the notice of appeal was filed.

(b)    The second exhibit is the proposed amended notice of appeal. It first contained an “interlocutory application” seeking an order for the production of communications, documents and information said to have been sought in a subpoena to produce “filed 4 March 2021”. The relief claimed included a declaration that the “applicant” is not a “Unauthorised Maritime Arrival” or a “Fast Track Review” applicant as defined in ss 5, 5AA or 189 of the Migration Act 1958 (Cth), relief in the nature of writs of habeas corpus (requiring the Commonwealth to release the “applicant” from community detention and cease restrictions placed on her liberty), prohibition (restraining the Minister and others from acting upon or giving effect to the decision to detain the “applicant” in or around September 2012 and the decision of the Immigration Assessment Authority “made on 1 September 2016”) and mandamus (directing the Minister to re-determine the decision to delay the exercise of his power under s 46A(2) of the Migration Act until after Royal Assent had been obtained to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) and grant the “applicant” a permanent protection visa). On the basis of the materials in the appeal book and the Court’s file, the detail of this application does not relate to the appellant.

(c)    The proposed amended notice of appeal set out twelve grounds of appeal, with eight new grounds. The new grounds are:

(i)    “The decision by the Minister and/or officers of the Commonwealth to detain the applicant in or around 17 January 2013 was beyond power”;

(ii)    “The detention of the applicant in Indonesian waters was contrary to law”;

(iii)    “The rescue vessel belonged to the Commonwealth of Australia, was registered to Canberra, which was not an excised offshore”;

(iv)    “The notice of detention was invalid and/or beyond power”;

(v)    “The appointment of the Port of Christmas Island was invalid”;

(vi)    “The appointment of the Port of Ashmore Reef was invalid”;

(vii)    “The ‘No Advantage Principle’ and the ‘No-Resettlement in Australia’ regimes were unlawful”;

(viii)    “The decision by the Minister for Home Affairs to delay exercising his power pursuant to section 46A(2) of the Migration Act 1958 (Cth) causing the applicant to become ineligible for permanent protection visa was beyond power”.

(d)    Grounds nine and ten are what had been the first and second grounds of the notice of appeal. There are new subparagraphs added to the grounds (which are marked) and there are unmarked deletions from the material that was in the second ground to the notice of appeal. Grounds 11 and 12, which were grounds three and four of the notice of appeal, have been amended to seek leave to rely on them as grounds not raised before the primary judge.

(e)    At [4]-[5] and [7] of the affidavit in support, the appellant said (as written):

I am seeking leave to rely on the amended notice of appeal and to file fresh evidence and rely on new grounds which was not before the primary judge nor were they before the IAA. The reason why they were not articulated apriori, is because I only recently became of the new grounds, because the Minister did not include in the Court Book, the Suspected Illegal Entry Vessel Report which showed when, where and how I came into Australia, in denial of procedural fairness.

The following documents are the evidence I intend to rely on in support of grounds (1) to (8) the amended notice of appeal.

…

The subpoena to produce

I am applying to the Court for an order that the Minister produce documents regarding my entry into Australia and detention on or around 4 March 2013.

20    On Tuesday, 1 June 2021:

(a)    At 9.05 am, a staff member of the Court’s Registry sent an email to my associates providing a link to the Court’s e-lodgement portal in relation to the documents lodged for filing by Mr Williams on the previous day seeking “review” of those documents. Registry enquired as to:

(i)    When the interlocutory application lodged the previous day should be set down for hearing (noting that a case management hearing was set down for the next day and the hearing of the appeal was set down for 16 June 2021); and

(ii)    Whether leave would be granted to issue the subpoena and before whom it should be returnable, as there did not appear to be a request for leave or for abridgement of time for service on the file.

(b)    At 11.35 am, the appellant’s submissions were filed. Without leave, they comprised 13 pages and the type was single spaced, contrary to Registrar McCormick’s directions. They addressed the grounds set out in the proposed amended notice of appeal.

(c)    At 2.11 pm, Ms Saunders sent an email to my associate which was copied to Mr Williams (exhibit COV18-10). The email said the following:

Dear Associate

Please see attached proposed consent short minutes. I understand that the appellant consents to these short minutes but a signed version has not been received. I would be grateful if you could advise whether her Honour is amenable to making the attached orders.

I also confirm that Ms Katherine Hooper of counsel will be appearing for the first respondent in this matter.

I would be grateful if you could advise whether the parties will still be required to appear tomorrow should the attached orders be made.

The proposed consent orders said:

By consent, the court orders that:

  1.    Order 6 of the orders made on 20 October 2020 be vacated.

2.     Order 8 of the orders made on 20 October 2020 be varied to read “Outlines of submission not to exceed 12 pages in length, including any annexures and be easily legible using a font size of least 12 points and one and a half line spacing throughout”

3.    On or before 2 June 2021, the appellant file and serve a written outline of submissions.

4.    On or before 9 June 2021, the respondent file and serve a written outline of submissions.

(d)    At 2.21 pm, my associate sent the following email to Mr Williams and Ms Saunders (exhibit COV18-12):

Dear practitioners,

Justice Farrell enquires whether there is any reason for the case management hearing listed at 2.15 pm tomorrow not to be held in person. Parties should respond by 3.30 pm today.

Her Honour notes that the appellant attempted to file the following documents yesterday:

•    Interlocutory application;

•    Affidavit;

•    Subpoena to produce documents; and

•    Notice of a Constitutional matter.

If copies of the above have not been provided to the Minister, it would be helpful if they are promptly provided.

(e)    At 2.34 pm, Ms Saunders sent the following email to my associate, copied to Mr Williams (exhibit COV18-12):

Dear Associate

Thank you for your email. I confirm the first respondent is able to attend in person tomorrow.

I further confirm that I had not been made aware of the documents the appellant attempted to file yesterday and I do not currently have copies.

(f)    At 2.53 pm, my associate sent an email to Ms Saunders, copied to Mr Williams (exhibit COV18-12) (emphasis in the original):

Dear Ms Saunders,

In light of the proposed orders provided, please see attached copies of the documents which were presented for filing yesterday.

Justice Farrell is minded to proceed with the case management hearing at 2.15 pm tomorrow. I will advise whether it will be held in person once a response from Mr Williams is received.

(g)    At 3.05 pm, Mr Williams sent the following email to my associate, copied to Ms Saunders (exhibit COV18-12):

Dear Associate,

The appellant is of the view that the case management hearing is now redundant and should be vacated, with all procedural and substantive issues to be argued at the final hearing.

(h)    At 3.42 pm, my associate sent an email to Mr Williams and Ms Saunders as follows (emphasis in the original) (exhibit COV18-12):

Dear practitioners,

The case management hearing listed at 2.15 pm tomorrow in the above matter will proceed and counsel are expected to appear in person.

(i)    At 3.44 pm, Mr Williams sent an email to my associate copied to Ms Saunders saying “Noted with thanks Associate”.

21    On 2 June 2021:

(a)    At 11.20 am, Mr Williams sent an email to Ms Saunders (exhibit COV18-14) as follows (as written):

Good morning Charlotte.

The appellant seeks the view of the Minister as to whether he is willing to enter into proposed consent orders for the progession of the matter, thereby vacated today’s gearing and saving the Court and parties further costs.

The appellant seeks the following orders

a) The Minister is directed to produce the documents as per the subpoena or failing this an notice objection within fourteen (14) days.

b) Assuming the Minister's complies, the appellant shall file and serve an (a) amended notice of appeal; (b) statement of claim;

(c) any further evidence and (d) a section 78B Notice of a Constitutional Matter, within eight (8) weeks of these orders.

c)The Minister shall file and serve an amended response, a statement of defence and any further evidence, within eight (16) weeks of these orders.

d) The appellant shall file and serve an affidavit of responses regarding the section 78B Notice of a Constitutional Matter, within (20) weeks of these orders

e) The matter is listed for further directions on a date to be fixed administratively.

d) Costs reserved.

If agreeable, could you please draw the appropriate orders or if not, please indicate your client's position by 1 pm today.

(b)    At 12.15 pm, Liam Dennis, a senior associate at Minter Ellison responded to Mr Williams as follows (exhibit COV18-15) (as written):

Jay

Thank you for your email.

Charlotte is unavailable today and I will be appearing at the case management hearing.

The Minister does not agree to your proposed orders. As you would have seen, by email dated 1 June 2021, the Court said that the case management hearing ‘will proceed and counsel are expected to appear in person’.

I those circumstances, the Minister intends to appear at the case management hearing as listed.

(c)    At 1.25 pm, Mr Williams sent an email to my associate copied to Ms Saunders and Mr Dennis attaching an unsealed copy of the appellant’s affidavit.

22    As at the time the case management hearing commenced, I had not given approval to acceptance for filing of the documents presented by Mr Williams on Monday, 31 May 2021 referred to at [18(c)] above and they continued to be marked “pending”.

APPELLANT’S SUBMISSIONS

23    Mr Williams submitted that:

(1)    Where a legal representative objects to the conduct of a judge or contends actual or appended bias on the part of the judge, there is an obligation to endeavour to have those objections and contentions noted and recorded;

(2)    Generally, an application should be made as soon as reasonably practicable after the party seeking disqualification becomes aware of the relevant facts;

(3)    Where there are matters that might properly arise for consideration which are known to the judge, it is desirable that they be drawn to the attention of the parties;

(4)    Circumstances that may lead to a reasonable apprehension of bias include where a matter has been prejudged or where the party has not had an opportunity to be heard on the matter in open court, as in this case. Mr Williams relied on Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11] where the High Court (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said (footnotes omitted):

… It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) 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.

which was affirmed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ);

(5)    There are a number of cases concerning conduct of the trial judge that involve adverse observation in relation to one party’s case or adverse findings made against a party without proper substantiation: see, for example, Mistral International Pty Ltd (Formerly known as Ringgrip Pty Ltd) v Polstead Pty Ltd [2002] NSWCA 321;

(6)    Present authority supports the propositions that: an application for disqualification can be made without filing any formal motion (see Barton v Walker [1979] 2 NSWLR 740); it should be determined by the judge whose disqualification is sought; it should not involve a contest of facts; and a denial by a judge alleged to have made a relevant statement cannot settle the question which depends on the view of a “fair-minded observer”. Although Mr Williams did not provide pinpoint references, the passages of CUR24 v Director of Public Prosecutions [2012] NSWCA 65; (2012) 83 NSWLR 385 on which counsel relied appear to be statements of Meagher JA at [50] and [52] and Basten JA at [22] addressing how contested evidence of out of court statements said to have been made by a judge asked to disqualify her/himslef should be assessed by reference to the fair-minded lay observer;

(7)    A refusal by a judge to accede to an application for disqualification can be relied upon as a ground of appeal in relation to the substantive argument; and

(8)    An indication by a party that it wishes the judge to disqualify himself or herself is not itself a proper ground for a judge to do so. Judges are required to discharge their professional duties unless disqualified by law. They should not accede too readily to an application for disqualification, otherwise litigants may succeed, effectively, in influencing the choice of judge in their own cause. Mr Williams submitted that that was not the case on this application.

24    In support of the recusal application, the appellant relied on the use of the phrase “substantive failure to comply with timetabling orders” in my associate’s email sent to the parties on 27 May 2021 set out at [16(b)] above and the following matters.

25    Mr Williams submitted that a fair-minded lay observer might reasonably apprehend bias because:

(a)    The use of that phrase was indicative of prejudgement of whether there had been a substantial failure to comply with the Registrar’s direction because there had been a conclusion reached and a finding made by email, rather unfairly, because it was made without giving the appellant an opportunity to explain the delay in filing submissions or the troubles and difficulties she faced. While a hearing concerning breach of orders might be significant in terms of costs, it should not be conducted by email and without the appellant being given an opportunity to put on evidence and be heard in open court in support of her reasons as to why there was a dispute as to non-compliance.

(b)    The appellant had only been told on 26 May 2021 that the matter had been set down for hearing on 16 June 2021. That was in circumstances where the appellant had not been given an opportunity to amend the notice of appeal, because there was no direction for that made by the Registrar on 20 October 2020, and the FCCA Judge’s reasons for judgment were not available at the time the notice of appeal was filed. Then, on 27 May 2021, the Minister and my chambers were put on notice of the appellant’s intention to file an interlocutory application seeking leave to file an amended notice of appeal and obtain discovery from the Minister by the email set out at [16(a)] above.

26    Mr Williams submitted that the “tone” I used in an exchange towards the beginning of the hearing and “personal attacks” on him were further matters in aide of his application.

27    The exchange in which my “tone” was relied on occurred in the following context: As noted at [21(c)] above, at 1.25 pm on 2 June 2021, Mr Williams sent an email to my associate, copied to Ms Saunders and Mr Dennis, to which was attached an unsealed copy of the appellant’s affidavit. In her affidavit, the appellant deposed as follows:

6.    On 22 March 2021, the parties were asked to confirm availability for a hearing in June 2021.

7.    Exhibited and attached as “COV18-2” is a copy of the email by the Associate to Farrell J., made on 22 March 2021.

8.    On 30 March 2021, the parties were notified that submissions were due 18 May 2021 and 1 June 2021, respectively. No date was set down for final hearing.

9.    Exhibited and attached as “COV18-3” is a copy of the email by the Associate to Farrell J., made on 30 March 2021.

…

15.    On 26 May 2021, the matter was set down for final hearing on 16 June 2021. Given this, I could not comply with the orders by the Registrar made on 20 October 2021. In particular, I could not comply with order (4) for the filing of the Appeal Book, on or before (20) days prior to the hearing, as the date has passed.

16    Exhibited and attached as “COV18-5” is a copy of the email by the Associate to Farrell J, made on 26 May 2021.

28    Shortly after appearances were made Mr Williams made the oral application that I disqualify myself on the basis of the email sent by my associate to Mr Williams and Ms Saunders on 27 May 2021 (see [16(b)] above) and he read the appellant’s affidavit. The Minister’ counsel indicated that she did not have a copy of the affidavit and asked Mr Williams to provide one. The following exchanges then occurred:

MR WILLIAMS: Well, your instructing solicitor has one.

MR L. DENNIS: It might have been in the email.

MR WILLIAMS: It is in the email. It’s on your email. I will allow them a moment to have an opportunity - - -

HER HONOUR: I will ask one of my associates to please - - -

MS HOOPER: Thank you, your Honour.

HER HONOUR: - - - go and print a copy of the 2 June email.

MR WILLIAMS: Perhaps it might be appropriate for the matter to be stood over for 10 minutes while my friend has an opportunity to - - -

HER HONOUR: Well, unless he also has access to the exhibit and the course of the emails – he should have access to the course of the emails. But, Mr – I will stand this over for five minutes, but, Mr - - -

MR WILLIAMS: Thank you, your Honour.

HER HONOUR: - - - Williams, I invite you to have a look again at the emails that were sent to you on 22 March 2021, to which my associate received no reply, and the express terms of the email sent to you on 30 March which contained the listed hearing date not mentioned in this affidavit.

MR WILLIAMS: Your Honour, I also note the tone of the bench as part of my recusal application. The emails in my affidavit, if your Honour has had an opportunity to read them, have gone through each and every single one of those correspondence - - -

HER HONOUR: Yes.

MR WILLIAMS: - - - and forms the basis of - - -

HER HONOUR: But, Mr Williams - - -

MR WILLIAMS: - - - the recusal application.

HER HONOUR: Okay. Mr Williams - - -

MR WILLIAMS: Thank you, your Honour.

HER HONOUR: - - - you say or your client says at paragraph 7 – sorry – at paragraph 6:

On 22 March 2021 the parties were asked to confirm availability for a hearing in June 2021.

MR WILLIAMS: Your Honour, I think my friend should have an opportunity to read it so that we’re on the same page.

HER HONOUR: Yes. No, but I want you to have an opportunity to address what I’m saying to you.

MR WILLIAMS: My apology. Did I not address that previously by saying that I’m well aware of all the email communications ..... was there and read them.

HER HONOUR: Okay. But what I’m pointing out to you is that this affidavit doesn’t reference the fact that you failed to respond - - -

MR WILLIAMS: Your Honour, it does.

HER HONOUR: - - - to the email dated - - -

MR WILLIAMS: It states clearly that I was in hearings at that point in time, and there was an email from me to your associate saying I was in those meetings. But I would rather address that in the context once my friend has had an opportunity to look at that.

HER HONOUR: Okay. Well, I also draw to your attention, though, you say that in relation to the email dated 30 March 2021:

…the parties were notified that submissions were due on 18 May and 1 June, respectively. No date was set for the final hearing.

MR WILLIAMS: Well, that might be – I will just need to - - -

HER HONOUR: That is contrary to the terms of the email.

MR WILLIAMS: No. But I might – I just need to have a look at what that was. But on 18 May the submissions were due and then the Minister’s submissions were due, but in the listing that we received there was no listing date for the hearing. We only received that later.

HER HONOUR: Have a look at the terms of the email, Mr Williams.

29    By way of background to an allegation made by Mr Williams that I made a personal attack on him, Mr Williams submitted that: There had been “some procedural irregularities” in this case, “in large part not due to the appellant”. The appellant’s written submissions filed on 1 June 2021 state that the Minister has had a Suspected Illegal Entry Vessel Report (SIEV report) in his possession since 2013 and discovery of that report is sought. The SIEV report goes directly to whether or not the appellant was an unauthorised maritime arrival or fast track applicant. The Minister has resisted production of the SIEV report in other matters for over a year and half. The SIEV report had been effectively hidden from the appellant and she only became aware of that report through legal advice in other matters. Counsel then said:

And the SIEV report which we are seeking from the Minister in other matters is directly relevant to whether the appellant is an authorised maritime arrival or – and, indeed, whether she’s an IAA fast-track review candidate. Your Honour, in other matters that I have been briefed in we have produced the SIEV report and it shows that at the time of the relevant entry there was the Australian Government’s policy to turn back boats or to exercise a policy of interdiction, which is effectively to do nothing if a boat was stranded in Indonesian waters.

In other matters, your Honour, tragically there have been the loss of life where the boat has been turned back, illegally under international law, and then, in Indonesian waters, has come into distress and sunk. I am instructed in this matter that the boat was in distress, but there was no loss of life and it didn’t sink, but the appellant is unable to recall the – naturally, the exact location of where she was detained at sea. Now, the Minister has this knowledge and has had this knowledge for nearly a decade; it’s not in the court book; it’s not in the – it wasn’t in the bundle of documents; it wasn’t before the IAA.

30    Following those submissions, the exchange complained of ensued as follows:

HER HONOUR: Has [the SIEV report] been requested in this matter?

MR WILLIAMS: In the documents it has been – the documents filed has a subpoena to produce.

HER HONOUR: No, I understand that. But prior to the filing of that document, has there been any correspondence in this matter asking for the material?

MR WILLIAMS: Well, I’ve spoke[n] to my friend this morning. She confirms that it will be resisted, but I’m not sure she can - - -

MS HOOPER: Your Honour, the answer is no, there hasn’t been that correspondence.

MR WILLIAMS: Well, there has been. On 27 May the documents were filed and the - - -

HER HONOUR: But there was no correspondence - - -

MR WILLIAMS: Well - - -

HER HONOUR: - - - before the filing. That was my question, Mr Williams.

MR WILLIAMS: Well, your Honour, I don’t need to – the appellant does not need to seek the permission of the Minister to file an interlocutory application for documents that have been resisted.

HER HONOUR: I wasn’t suggesting - - -

MR WILLIAMS: But the - - -

HER HONOUR: I wasn’t suggesting - - -

MR WILLIAMS: Well, the answer to it is – is that the Minister was put on notice once those documents were filed.

HER HONOUR: Okay. But there was no prior request.

MR WILLIAMS: Well, it’s irrelevant, your Honour. And in my respectful submission - - -

HER HONOUR: Yes.

MR WILLIAMS: - - - it’s irrelevant.

HER HONOUR: There may be different views about that, Mr Williams.

MR WILLIAMS: Well, your Honour, you’re asking to go behind the formal documents before the court, and I’m not willing to do - - -

HER HONOUR: Well, I’m entitled to ask that question, Mr Williams.

MR WILLIAMS: Well, your Honour, I’m sorry. The relevant question is why has the Minister not included these documents before the IAA or put on a certificate, public-interest immunity or a non-disclosure certificate? Now, our grounds we seek to amend to raise that there has been a formal denial of procedural fairness – that the IAA has mistrialled, in effect, because it did not have these documents before it when it’s quite apparent they are relevant to whether the IAA has jurisdiction.

So the question really isn’t why the appellant notified the Minister on 27 May. The question is why didn’t the Minister produce these documents 10 years ago or at least at the time when the IAA was hearing the matter? Your Honour, we say that constitutes a ground of procedural unfairness. So with regard to the affidavit, your Honour, I will just say that is - way of background, that on paragraph 2, your Honour will note that the appellant commenced proceedings by filing a notice of appeal on 7 October 2020 before the primary judge of the Federal Circuit Court.

That matter was dismissed extemporaneously on 9 September 2020. At the time of filing the notice of appeal to remain in time, the affidavit that I read of that time - I think it was 7 October – formally states that - the reason why the appeal is incomplete and we would be seeking time to amend to take in light the reasons for judgment – that they weren’t available. So that explains some of the delay. Your Honour - - -

HER HONOUR: In filing submissions?

MR WILLIAMS: No, your Honour, filing an amended notice of appeal.

HER HONOUR: Okay. So have you moved on from the recusal application?

MR WILLIAMS: No, I haven’t.

HER HONOUR: Okay. So - - -

MR WILLIAMS: No, I have not finished.

HER HONOUR: Well - - -

MR WILLIAMS: So - - -

HER HONOUR: Okay. Keep going.

MR WILLIAMS: I would appreciate an opportunity to be heard on the recusal application.

HER HONOUR: You have every opportunity to be heard on it - - -

MR WILLIAMS: Thank you.

HER HONOUR: My question was, though, that issue seems to go to the leave application, not to the failure to provide submissions on time.

MR WILLIAMS: But, your Honour, it seems that your Honour is focused on the submissions, and I will come to that. [S]o the submissions could not be finalised – this is the – again, I note the personalised attack on counsel – the submission – and your Honour is focused on the question of submissions as a breach of orders. The submissions could not be completed without an amended notice of appeal.

HER HONOUR: Yes, and?

MR WILLIAMS: And it could not be completed with[out] an interlocutory application to amend the notice of appeal, and it could not be completed without the subpoena to produce the SIEV report. So that would be a just basis for the submissions not comply with the 18 May direction – March – 18 May direction. …

31    After a number of exchanges, Mr Williams conceded that the email sent by my associate to Ms Saunders and Mr Williams on 30 March 2021 did advise that the appeal had been set down for hearing on 16 June 2021, he apologised for that error and said that he took responsibility. The following exchange then occurred:

HER HONOUR: Well, what effect does that have on your recusal application, Mr Williams?

MR WILLIAMS: Well, I’m simply building up to say that this was the procedural history prior to your Honour making a determination that there had been substantial non-compliance without the appellant now explaining the reasons for it.

HER HONOUR: Well, don’t you think that there’s some reason for concern when a matter has been listed since March for June - - -

MR WILLIAMS: Yes.

HER HONOUR: - - - and we were entering June - concerning the respondent’s capacity to respond to anything that you might have to say without prejudice to the date of 16 June?

MR WILLIAMS: Your Honour, I think that the more important question is not to be targeted at me or the appellant, but ask the Minister why he has not produced this document in the last 10 years.

HER HONOUR: I’m sorry, that isn’t a timetabling issue.

MR WILLIAMS: No, it is a timetabling issue, because there’s no way that the - the appellant was relying on an amended document that the Minister has and has had in his possession. I mean, your Honour, we’re losing focus a little bit here. We’ve got the appellant escaping Iran on the grounds that she faces the death sentence for apostasy and wearing the hijab and we were - unfortunately discovered new documents and sought leave to amend those documents. So I think, putting it in perspective, the criticism coming to the appellant is rather unfair. In terms of the - on 27 May the associate and the Minister were notified of the appellant’s intention to file.

Now, there’s no rule, your Honour, that says that the appellant can’t file an interlocutory application at some point. There’s no bar on the appellant making an interlocutory application. The amended notice of appeal had to be dealt with and, perhaps in terms of case management, instead of placing everything at the hands of the appellant, I mean, really the matter should have been perhaps case managed prior to this. Now, there has been, regrettably, emails that have come from chambers and to - sometimes addressed only to the solicitor for the Minister, but in correspondence - - -

HER HONOUR: I’m sorry, you’re going to have to make good that submission.

MR WILLIAMS: I will make good that. Yes, I will, and this is a part of the recusal application. So 27 May chambers and the Minister had notice that there was - well, they’ve had notice since at least 18 May [sic] when the Minister was notified that there would be further materials. Then 27 May the telling email was at - from chambers stating “having regard to the appellant’s substantial failure to comply with the timetabling orders”. Now, for the reasons that I outlined at the beginning that was the constituted prejudgment, because there was no opportunity for the appellant to provide any explanation for what had happened.

32    From these exchanges and exchanges that followed I understand Mr Williams to have raised the following issues:

(a)    Criticism of the appellant in the email sent by my associate to Ms Saunders and Mr Williams on 27 May 2021 (see [16(b)] above) by use of the term “substantive failure to comply with timetabling orders” was unfair when notice of an intention to file an interlocutory application seeking leave to file an amended notice of appeal had been provided on that day to the knowledge of my associate and the Minister and the Minister had not provided the appellant with the SIEV report in the past 10 years;

(b)    Instead of making a finding of “substantive failure to comply with timetabling orders” in my associate’s email dated 27 May 2021 without affording the appellant an opportunity to explain, the parties should have been invited to attend a case management hearing. Mr Williams submitted that a case management hearing after such a finding is futile;

(c)    Mr Williams submitted that the words “Should chambers not receive a response from Mr Williams by 2 pm today this matter will be listed for case management” in the email sent on 31 May 2021 (see [18(a)] above) were quite demanding and should have been framed as a request that he respond to chambers or as an enquiry as to whether he was available to respond. He says he advised chambers that he was in Court and would respond later in the day and did so (see [18(b) and (d)] above);

(d)    The fact that the documents which Mr Williams lodged for filing on 31 May 2021 (see [18(c)] above) had not been approved by me for acceptance for filing but were still marked “pending” indicated that they had been refused, consistent with a finding that there had been substantial non-compliance with timetabling; and

(e)    My associate’s email sent on 1 June 2021 (see [20(f)] above):

(i)    Was addressed to Ms Saunders personally. Notwithstanding that the email was copied to Mr Williams, he submitted that Ms Saunders engaged in communications with the Court without prior agreement with him;

(ii)    Was sent in circumstances where the documents which Mr Williams lodged on 31 May 2021 were not accepted for filing so that the appellant could not obtain sealed copies of them to serve on the Minister. My associate in effect served those document on the Minister (see [20(c)-(f)] above). That is in circumstances where the appellant was being criticised for failing to file and serve documents on time.

33    Mr Williams made further submissions that I made personal attacks on him at the hearing which arose after Mr Williams accepted that a hearing of the appeal could not now proceed on 16 June 2021. Mr Williams referred to the fact that he had sent proposed consent orders to the Minister on 2 June 2021 as follows:

MR WILLIAMS: I sent the email to the Minister with the proposed orders again, saving much time and court resources today, with those proposed consent orders. There is no other reasonable way to move forward, given the Minister has hidden documents from the appellant, given the failure of the – well, given the lateness of the reasons for judgment. I only became aware on 18 May that they had been made available on AustLII. The late timetabling, the failure of the appellant, due to her work commitments, to come in and sign documents, these have all been accumulative effects.

HER HONOUR: May I ask: what do you say to the fact that those reasons were published in October 2020?

MR WILLIAMS: 14 October, yes.

HER HONOUR: They presumably were available on AustLII reasonably promptly after that. Did you look before then or - - -

MR WILLIAMS: Well, no, I didn’t, because the appellant was represented by another solicitor.

HER HONOUR: Right.

MR WILLIAMS: All right. So - - -

HER HONOUR: At that point?

MR WILLIAMS: Yes. So - - -

HER HONOUR: Okay.

MR WILLIAMS: At that point, yes. And, as I understand, she asked - he requested a request for judgment, but the appellant never got them.

HER HONOUR: Right.

MR WILLIAMS: So in that regard my submissions were due, after being notified on 18 May - so the personal attack again, your Honour, which I have to take exception to.

HER HONOUR: What personal attack?

MR WILLIAMS: Well, you asked me if I had looked for the reasons for judgment before the submission. Yes, so in terms of my - - -

HER HONOUR: Well, what I was attempting to do is draw to your attention the fact they had likely been available - - -

MR WILLIAMS: It’s a personalised attack, yes. No, I had looked at that and I’ve just answered that.

HER HONOUR: And you also filed the notice of appeal, didn’t you?

MR WILLIAMS: Sorry, yes, but, your Honour - - -

HER HONOUR: Well, that’s why I asked you the question.

MR WILLIAMS: Well, may I - - -

HER HONOUR: It appears that you were acting - - -

MR WILLIAMS: Look, your Honour, the submissions were due on 18 May.

HER HONOUR: Yes.

MR WILLIAMS: Yes. So when I - I have a very busy practice. So when I came to review the file prior to 18 May that’s when I discovered that they were there. That’s when I regularised the proceedings and, unfortunately, the appellant didn’t come in.

So, I mean, again I’m just wanting to hold up my own integrity because your Honour seems to like to have a go at me - - -

HER HONOUR: I’m asking you for issues - to address issues.

MR WILLIAMS: No, no, but they’re not relevant.

HER HONOUR: Well, it is relevant that in - - -

MR WILLIAMS: No, no, it’s a reasonable apprehension of bias every time I appear before your Honour.

HER HONOUR: Mr Williams - - -

MR WILLIAMS: Well, it is.

HER HONOUR: - - - in March you were advised by email that submissions were due on 18 May.

MR WILLIAMS: Your Honour - - -

HER HONOUR: What I'm asking you to explain, I’m giving you a fair opportunity to explain, is why between March - - -

MR WILLIAMS: And 18 May.

HER HONOUR: - - - and the due date for the submissions - - -

MR WILLIAMS: Yes, they were. I did.

HER HONOUR: And you - - -

MR WILLIAMS: The short answer is that I did. When I came to prepare the submissions and the documents for 18 May that’s when I discovered that it was on AustLII. Prior to that there was no obligation for me to do anything. Unfortunately on 18 May the appellant wasn’t able to meet with me, but again it’s this reflection from the bench to try and go into my own personal culpability for which there is no basis to do so, and I have faced this every time I walk into this honourable court, personalised attacks directed at counsel which are unfair and inaccurate. And the bottom line is, your Honour, that really I should be asked to sit down and say nothing further and the Minister should be explaining why has this document not been produced to the appellant before or the IAA prior.

It is how she came into the country. If she was picked up in Indonesian waters it was illegal. She’s not a UMA. She’s not an IAA. There is a denial of procedural fairness because the Minister has been hiding these documents for 10 years. But what happened then, your Honour, was that the appellant was then detained in high seas at gunpoint, and handcuffed and put into the bottom of a ship, and taken into Australia and then locked up on Christmas Island for over a year or so, where she was then told that she would be deported to Nauru or PNG for five or more years where she would have no opportunity to have her claims heard and processed.

And then she was told that she would be under the no resettlement program where she would not be resettled in Australia even if she had claims. And then we have an - then she, by sheer luck, is allowed to be given a bridging visa to stay in Australia, not shipped to the third world nations who can’t feed their own people, not housed in torturous, inhumane, degrading treatment, in gross violation of international law which has been adopted and incorporated into Australian law through the Criminal Code. She is then given a BVE without work rights, without education rights, without health rights, without housing rights. Basically held in destitution for seven or more years. And then there’s a direction from the then Minister for Immigration, now Prime Minister, to go slow on the processing - and there’s a document in the affidavit that we’re relying on – to go slow on the processing so that the applicant would not – appellant would not be eligible for permanent protection, but would be only eligible for temporary protection.

And to go slow on the processing meant that this thing meant that she was detained at gunpoint at sea; illegally in Indonesian waters; kidnapped; taken into Australia; told she’s going to be sent for five – won’t be processed for five or more years under the no-resettlement deal – won’t be resettled in Australia; given a bridging visa; facing restrictions on her freedom that no other person faces in Australia; has her life utterly destroyed; and then is told that she can go home anytime she likes and that they will give her money to go home anytime she likes, and would happily go home except that she faces the death sentence for apostasy and for wearing – not wanting to hijab.

HER HONOUR: Mr Williams - - -

MR WILLIAMS: So we - - -

HER HONOUR: - - - I don’t want to interrupt, but aren’t these submissions that go to any substantive application - that it actually has to be heard – sometime[..]?

MR WILLIAMS: Well, these submissions are actually going to the focus of this court, okay - - -

HER HONOUR: On?

MR WILLIAMS: - - - on a failure that there has been non-compliance; on the focus of this court not to allow the filing of these documents so that this could be properly articulated; that we’ve provided proposed consent orders for the orderly conduct of it. I sincerely apologise, your Honour, for any tardiness or anything beyond my power to make sure that the orders and the – were complied with; I’ve done my very best. I work 10/15-hour days to try and do so. It’s out of my control.

But these are some of the most important and significant issues – arbitrary indefinite detention, illegal arrest at sea, people smuggling back into Australia, seven years without processing, directions to go slow while the legacy caseload legislation is passed – and my client has faced an arbitrary illegal detention – false imprisonment for over seven years . She wasn’t a UMA. The illegality of going into Indonesia destroys everything afterwards. It’s like a, you know – police going into a search and arrest into a house without a warrant.

HER HONOUR: Mr Williams, I can’t do anything about that right now. So can we deal with the case management issues that are before us at the moment.

MR WILLIAMS: Well, yes, your Honour. We propose – we press the recusal on those grounds, and we seek the orders – if not, we seek the orders as proposed. If there’s anything further - - -

HER HONOUR: Thank you. Ms Hooper.

34    Ms Hooper indicated that the Minister did not consent to the application but otherwise did not wish to be heard on it, on the basis that it was for Mr Williams to satisfy me of the basis for the application.

RELEVANT PRINCIPLES

35    Mr Williams’ submissions as to the principles to be applied in relation to an application for a judge to disqualify themselves from a proceeding on the basis of apprehended bias were not disputed by the Minister. Rather, the Minister relied on the recent statement of relevant principles in GetSwift Limited v Webb [2021] FCAFC 26 at [27]-[45].

36    In general, I accept the submissions as to the principles to be applied submitted by Mr Williams as summarised at [23] above and find it convenient to set out the principles most recently summarised by the Full Court in GetSwift Limited v Webb at [27]-[37] as being relevant to this application:

27    The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question he or she is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (‘Ebner’) at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ), applied in CNY17 v Minister for Immigration [2019] HCA 50; (2019) 375 ALR 47 (‘CNY17’) at [17]-[18] (Kiefel CJ and Gageler J); [50] (Nettle and Gordon JJ); and [132] (Edelman J). The bias rule is concerned as much to preserve the public appearance of independence and impartiality as it is to preserve the actuality: CNY17 at [18] (Kiefel CJ and Gageler J). It also reflects a precautionary approach: “In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view”: Ebner at [20]. The application of the rule involves two steps: first, identification of the factor which it is said might lead the judge to decide the case otherwise than on its legal and factual merits; and, second, an articulation of the logical connection between that factor and the feared deviation from the course of deciding the case impartially on the merits: Ebner at [8]; CNY17 at [21]; cf Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 (‘Isbester’) at [59] (Gageler J) where three steps are articulated. The connection must be assessed objectively: see Michael Wilson & Partners v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [67] (Gummow ACJ, Hayne, Crennan and Bell JJ). The conclusion of apprehended bias is “largely a factual one”: CNY17 at [93] (Nettle and Gordon JJ).

28    Whilst a precautionary approach is to be observed, the cases emphasise that an allegation of apprehension of bias must be “firmly established”: see, eg, Reece v Webber [2011] FCAFC 33; (2011) 192 FCR 254 at [45] (Jacobson, Flick and Reeves JJ) citing Re JRL; Ex parte CJL (1986) 161 CLR 342 (‘Re JRL’) at 352 (Mason J). The reference to “firmly established” originated in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553 (Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ). A conclusion of apprehended bias “is not to be reached lightly”: see CNY17 at 61 [56] (Nettle and Gordon JJ) citing Re JRL at 371 (Dawson J).

29    There is a variety of ways in which the impartiality of a court may be or may appear to be compromised. In Webb v The Queen (1994) 181 CLR 41 at 74, Deane J, who was not dissenting on this point, identified four of them as “distinct, though sometimes overlapping, main categories of case”. They were:

(1)    interest – where the judge has an interest in the proceedings, whether pecuniary or otherwise, giving rise to a reasonable apprehension of prejudice, partiality or prejudgment;

(2)    conduct – where the judge has engaged in conduct in the course of, or outside, the proceedings, giving rise to such an apprehension of bias (including prejudgment);

(3)    association – where the judge has a direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings; and

(4)    extraneous information – where the judge has knowledge of some prejudicial but inadmissible fact or circumstance giving rise to the apprehension of bias.

…

31    It is convenient to make some observations on the extent of the knowledge attributable to the hypothetical observer for the purpose of determining whether that observer would reasonably apprehend bias. That knowledge does not extend to a knowledge of the law or any detailed knowledge of the evidence relied upon or to be relied upon by the fact-finding judge.

32    The question was discussed in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 (‘Johnson v Johnson’), where the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said at [13]:

Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. 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.

(Footnote omitted.)

Justice Kirby also discussed the attributes of the fictitious bystander at [53]:

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.

(Footnotes omitted.)

And further at [53]: “a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.” (Footnote omitted.)

33    It is probably fair to conclude that the hypothetical observer today is more aware of the court processes than, say, a few decades ago. Knowledge about courts has become more accessible through the media, and the courts are more accountable in the conduct of judicial functions. It is also appropriate to conclude that the hypothetical observer would, before forming a view about the existence of a reasonable apprehension of bias, take the trouble to inform himself or herself to the extent necessary to make a fair judgment of what might occur in the process confronting a fact-finding judge.

34    The hypothetical observer is to be attributed with knowledge of the nature of the decision, the context in which it is made, and the circumstances leading to it: Isbester at [23] (Kiefel, Bell, Keane and Nettle JJ). Nevertheless, it is always to be kept in mind that the observer is a layperson and not a lawyer.

35    The hypothetical observer is taken to understand how a judge is capable of putting irrelevant and immaterial matters to one side as part of the assumed abilities of a judge. In this regard a number of observations have been made by the courts:

(a)    a judge as a professional decision-maker can ordinarily be expected to be capable of discarding “the irrelevant, the immaterial and the prejudicial”: see CNY17 at [28] (Kiefel CJ and Gageler J) citing Johnson v Johnson at [12] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) quoting Vakauta v Kelly (1988) 13 NSWLR 502 at 527;

(b)    a judge is “equipped by training, experience and their oath or affirmation to decide factual contests solely on the material that is in evidence”: British American Tobacco Australia Services Ltd v Laurie & Ors [2011] HCA 2; (2011) 242 CLR 283 (‘BAT v Laurie’) at [140] (Heydon, Kiefel and Bell JJ)); and furthermore is aware of “the possibility of the evidentiary position changing”: BAT v Laurie at [145] (Heydon, Kiefel and Bell JJ); Centro (No 2) at [20] (Middleton J); GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Limited [2013] FCAFC 150 at [38] (Allsop CJ, Middleton and Katzmann JJ);

(c)    “[a] judge will be assumed to have a capacity to put from his or her mind evidence of a prejudicial kind which has been heard or seen but is not relevant to the determination of the question before the Court”: see R v Burrell [2007] NSWCCA 79; (2007) 175 A Crim R 21 at [7] (McClellan CJ at CL, Sully and James JJ agreeing). See also State of Victoria v Australian Building Construction Employees and Builders Labourers Federation (1982) 152 CLR 25 at 58 (Gibbs CJ), 76 (Stephen J); and

(d)    judges are capable of impartially reconsidering matters which have previously been considered or which may even have been pronounced upon by that particular judge – subject always to the nature of the findings: see, eg, R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 554 (Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ); Reece v Webber [2011] FCAFC 33; (2011) 192 FCR 254 at 272 [52] (Jacobson, Flick and Reeves JJ); and Centro (No 2) at [57] and [60] (Middleton J).

36    We agree that there is a degree of artificiality about this attribution, and indeed some scepticism has been expressed about its intellectual coherence: see Commonwealth Bank of Australia v Jackson McDonald (a firm) [2014] WASC 301 at [24] (Martin CJ). The primary judge himself has made similar remarks including that the test may obscure “normative standards of behaviour determined by the Court itself”: McKenzie v Cash Converters International Ltd (No 3) [2019] FCA 10 at [28]. See also J [30]; Webb v GetSwift Ltd (No 5) [2019] FCA 1533 at [27].

37    The test for apprehended bias is the same wherever it arises, although the context in which it falls to be applied will clearly affect how the test is applied: Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 (Kenny, Tracey and Middleton JJ) at [25].

CONSIDERATION

37    Having regard to the submissions made by Mr Williams at the case management hearing, I understand that the matters to be addressed on the application for disqualification for apprehended bias are as follows:

(a)    Whether the use of the phrase “substantive failure to comply with timetabling orders” in my associate’s email sent to Mr Williams and Ms Saunders on 27 May 2021 at 12.46 pm (see [16(b)] above) satisfied the test of apprehended bias because, as submitted by Mr Williams:

(i)    That was a finding that constituted prejudgment on the issue of whether the appellant had failed to comply with timetabling orders in circumstances where the appellant had not been given an opportunity to make submissions on the issue and my chambers had been informed of Mr Williams’ intention to file the interlocutory application seeking leave to rely on an amended notice of appeal and to issue the subpoena to the Minister (see [18(c)] and [19] above), the product of which would found the amended notice of appeal; or

(ii)    That finding was a basis on which the test is satisfied in relation to decisions I will be called on to make, such as whether or not to grant leave to rely on an amended notice of appeal or the appeal;

(b)    Whether, together with the use of the phrase “substantive failure to comply with timetabling orders” in my associate’s 27 May 2021 email, one or all of the following in combination would satisfy the test for apprehended bias:

(i)    The tone used in the interchange set out at [28] above;

(ii)    What Mr Williams describes as the “demanding” nature of the language used in my associate’s email sent to the parties at 9.05 am on 31 May 2021 (see [18(a)] above), rather than a request that he respond to chambers or advise his availability;

(iii)    The fact that, as at the time of the case management hearing, I had not approved for filing the interlocutory application, affidavit in support, subpoena and notice of a constitutional matter presented for filing on 31 May 2021 (see [18(c)] above) (the lodged documents) and they were still marked “pending”, leading to the inference that I had refused them for filing, consistent with a finding that there had been substantial non-compliance with the timetabling orders;

(iv)    The fact that my associate corresponded with Ms Saunders on 1 June 2021 and provided to her the lodged documents and addressed the email set out at [20(f)] above “Dear Ms Saunders” at a time when the appellant was being criticised for not filing documents on time; and/or

(v)    Identified alleged “personal attacks” referred to above.

Associate’s email sent at 12.46 pm on 27 May 2021

38    In my view, the fair-minded lay observer would reasonably form her or his view having regard to the following matters.

39    First, a notice of appeal had been filed on 7 October 2020. The notice of appeal was prepared by the appellant’s counsel, Mr Williams, acting on a direct access brief as demonstrated by the footer to the notice of appeal. Accordingly, the fair-minded lay observer would understand that the appellant has been represented throughout the appeal to date.

40    Second, the notice of appeal stated that the FCCA Judge’s written reasons for judgment were not available to the appellant. The notice of appeal stated four grounds which alleged jurisdictional error by the Immigration Assessment Authority and that “the appellant intends to amend the notice of appeal once the reasons for judgment are available”.

41    Third, the FCCA Judge’s reasons for judgment were published on 14 October 2020.

42    Fourth, on 20 October 2020, Registrar McCormick made timetabling directions for preparation of this matter for hearing, at a time when the date for hearing and the judge who would hear the appeal were not known. However, the directions provide for the time for filing of an appeal book, submissions and copies of relevant legislation to be calculated by reference to a number of business days prior to a date set for hearing. For instance, the appeal book was to be filed 20 business days before the hearing. The Registrar’s directions did not address the filing of an amended notice of appeal by either granting leave to file such an amended notice or by precluding an application to make such a filing.

43    Fifth, although the fair-minded lay observer is not a lawyer and is not expected to have a detailed understanding of the law, that observer may be taken to have some understanding of the Court’s processes in the modern day: see GetSwift Limited v Webb at [31]-[34]. The observer may be taken to know, on the basis that it is common knowledge, that courts generally have heavy caseloads in migration matters and a finite number of judges. The observer would expect that the preparation of appeals will be managed so that they may be heard in a reasonable timeframe and timetabling directions for preparation of the appeal will be made to achieve that outcome.

44    That observer would understand that unexplained failure to comply with a timetabling direction for a lengthy period is likely not only to affect timely and just resolution of that proceeding but that it may also have an effect on the Court’s capacity to deal with the disputes of other litigants in an efficient, cost effective and just way.

45    That observer would therefore expect, again in a general way, that the Court’s governing legislation would contain provisions addressing the management of the Court’s caseload and, in that context, individual cases. They would be unsurprised to learn that:

(a)    The overarching purpose of the Court’s civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible and that includes the efficient use of judicial and administrative resources and the efficient disposal of the Court’s overall caseload: s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act);

(b)    The parties to the proceeding are under a duty to conduct the proceeding in a way which is consistent with the overarching purpose and the party’s lawyer must take that party’s duty into account and assist the party to comply with it in conducting the proceeding: s 37N of the FCA Act; and

(c)    The Court or a Judge may give directions about practice and procedure to be followed in the proceeding or any part of it and a direction may require things to be done, set time limits for doing anything or the completion of a part of the proceeding, provide for submissions to be made in writing, limit the length of submissions (whether written or oral), waive or vary any provision of the Rules of Court in their application to the proceeding and revoke or vary an earlier direction. If a party fails to comply with a direction, the Court or a Judge may (among other things) dismiss the proceeding in whole or part, disallow or reject evidence and award costs against a party including on an indemnity basis: s 37P of the FCA Act.

46    Sixth that observer may therefore be taken to understand in a general way that the need to vacate listed dates for hearing due to:

    unexplained or significant delay in complying with timetabling directions for the preparation of appeals for hearing; and/or

    the failure to file an application to amend a notice of appeal in a timely way, especially where the likely necessity for the amendment was foreshadowed at the time the notice of appeal was filed and where proposed new grounds do not rely on the judgment appealed from,

would be a cause for concern and taken seriously by the presiding judge and opposing parties.

47    Seventh, neither Mr Williams nor Ms Saunders responded to the associate’s email sent on Monday, 22 March 2021, requesting the parties to provide dates on which they would be available for a hearing in June 2021, within the 72 hour timeframe specified in the email (see [9] above). In the afternoon of Friday, 26 March 2021, Mr Williams advised dates on which he would not be available for a hearing in June 2021 by email sent to Ms Saunders and copied to the associate (see [10] above). Mr Williams did not identify 16 June 2021 as a date he would not be available to appear at the hearing of the appeal.

48    Eighth, on 30 March 2021, the associate advised Mr Williams and Ms Saunders by email, in unambiguous terms, that the appeal had been set down for hearing on 16 June 2021 (see [11] above). By reference to the timeframes set out in direction 6 of Registrar McCormick’s directions made on 20 October 2020, the email clearly stated that the due date for the appellant’s submissions was 18 May 2021 and the due date for the Minister’s submissions was 1 June 2021.

49    Ninth, the appellant did not file submissions by close of business on 18 May 2021 and accordingly, as a factual matter, the appellant did not comply with direction 6 made by Registrar McCormick on 20 October 2020 as notified in the associate’s email dated 30 March 2021.

50    Tenth, on Monday, 24 May 2021, the Minister’s solicitor sent an email to Mr Williams seeking to know by when submissions would be filed (see [14] above). That communication was not copied to the associate.

51    Eleventh, by 4.55 pm on Wednesday, 26 May 2021:

(a)    Six business days had passed since the appellant was required to file submissions and four business days remained for the Minister to file submissions in accordance with the timetable set by Registrar McCormick’s directions reflected in the email to the parties dated 30 March 2021. The fair-minded lay observer would understand that the respondent’s submissions will generally address matters raised in the appellant’s submissions in chief because that is the case to which the respondent must respond;

(b)    No correspondence had been received from the parties regarding this appeal since 26 March 2021;

(c)    The appellant had not requested an extension of time to file submissions, had not given any explanation to chambers for the failure to file submissions by 18 May 2021, and had not given any indication of the time by when submissions might be available;

(d)    No amended notice of appeal or interlocutory application seeking leave to amend such a notice had been filed by the appellant as envisioned by the notice of appeal; and

(e)    Neither party had requested a case management hearing to address timetabling issues.

52    Twelfth, the associate sent the email dated 26 May 2021 to Mr Williams and Ms Saunders at 4.54 pm (see [15] above). The email enquired how the parties intended to advance the matter having regard to the listed hearing date of 16 June 2021 and in light of the delay in filing the appellant’s submissions.

53    Thirteenth, Mr Williams sent a response to the associate which was copied to Ms Saunders at 9.08 am on Thursday, 27 May 2021 (see [16(a)] above) setting out the appellant’s proposed way forward and indicating that he would not be available for a hearing on 16 June 2021. The fair-minded lay observer would note that:

(a)    The first paragraph of the email implied that the basis for the need for the interlocutory application in relation to an amended notice of appeal was that “the reasons for judgment were not available at the time of filing” the notice of appeal;

(b)    27 May 2021 was more than seven months after the FCCA Judge’s reasons for judgement were published and almost two months after the appeal had been listed for hearing on 16 June 2021;

(c)    The email did not suggest that there had been anything to prevent the filing of any of the documents discussed in the proposed way forward since the FCCA Judge’s reasons were published;

(d)    The proposed way forward envisaged grounds of appeal which did not rely on any error by the FCCA Judge; they were said to be “new grounds”.

54    Accordingly, the relevance of the timing of the publication of the FCCA Judge’s reasons to the appellant’s ability to file an amended notice of appeal on or before 18 May 2021 would not have been apparent to the fair-minded lay observer and it would not have been apparent why the steps contemplated in the email could not have occurred before the end of 2020 or soon after 30 March 2021, when the parties were advised that a hearing had been listed for 16 June 2021.

55    That observer would also note that:

(a)    The email said that the “amending documents” would be filed “tomorrow, all things being equal”, but that appeared to be inconsistent with the immediately preceding paragraph which suggested that the new grounds would only be formulated after a discovery process had been undertaken. That would indicate that any interlocutory application to amend the notice of appeal filed the next day would not address all of the amendments which the appellant might propose;

(b)    The email did not indicate that the appellant or her counsel had undertaken any consultation with the solicitors for the Minister regarding the impact that the proposed way forward might have on the feasibility of a hearing on 16 June 2021; and

(c)    Despite complexities arising from the elements of the appellant’s proposed way forward, the email did not suggest that it might be convenient to convene a case management hearing for establishing an appropriate timetable for the progress of the appeal.

56    Fourteenth, by the associate’s email sent at 12.46 pm on Thursday, 27 May 2021 (see [16(b)] above), the parties were advised that, having regard to the “appellant’s substantive failure to comply with timetabling orders” their attendance at a case management hearing was required. The email also noted the date of publication of the FCCA Judge’s reasons for judgment. The email enquired as to the availability of the parties for a case management hearing to be held on Tuesday, 2 June 2021 at either 9.30 am or 2.15 pm, advising that they “should confirm their mutual availability promptly”.

57    In the circumstances set out above, in my view, the fair-minded lay observer would conclude that the use of the term “substantive failure” in the associate’s email dated 27 May 2021 was designed to underline the need for the parties to take prompt action to address the preparation of the appeal at a case management hearing at which counsel appeared. The fair-minded lay observer would not have understood that phrase to be a pre-emptive finding in the absence of giving the appellant an opportunity to explain any circumstance which might mitigate the consequence of the objective fact that submissions had not been filed by 18 May 2021 in accordance with the Registrar’s directions. The fair-minded lay observer would have concluded that:

(a)    The presiding judge had no reason for confidence that the listed date for hearing on 16 June 2021 could be achieved or that a satisfactory determination of an appropriate timetable for the preparation of the appeal could be reached by correspondence with the parties. The observer would note the parties’ failure to respond promptly to the associate’s 22 March 2021 email which requested advice as to the mutual availability of the parties’ counsel, the lack of correspondence with the presiding judge’s chambers from either party since 26 March 2021 until prompted by the associate’s email sent on 26 May 2021, the lack of explanation by the appellant for failing to file submissions by the due date, the appellant’s counsel’s advice that he was not available on 16 June 2021 (a date set on 30 March 2021 after consultation with the parties) without explanation, and the scope of the steps which the appellant’s counsel foreshadowed in the email sent on the morning of 27 May 2021;

(b)    The presiding judge had reason for concern about the manner in which the appeal was being prosecuted in light of the fact that it appeared that the first steps to advance the appeal since 7 October 2020 would be taken around 28 May 2021;

(c)    At that case management hearing, the appellant would be given an opportunity to explain the circumstances giving rise to the failure to comply with the timetabling orders and to explain why an interlocutory application seeking leave to file an amended notice of appeal could not have been filed before 28 May 2021; and

(d)    In light of those explanations, the presiding judge would consult with the parties’ representatives concerning the future conduct of the appeal for hearing, including whether it was necessary to vacate the listing of the hearing of the appeal on 16 June 2021 and make new timetabling orders.

58    Accordingly, I do not accept that a fair-minded lay observer might apprehend from the language of my associate’s 27 May 2021 email that I might not bring an impartial mind to the determination of the issues which arose in relation to the consequences which might flow from the objective fact that the appellant had failed to comply with timetabling orders for the filing of submissions on 18 May 2021 or in relation to issues that might arise in case management of the appeal, the determination of any interlocutory application or the appeal.

Other issues raised

59    I also do not accept that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to any of the issues to be addressed having regard to any of the issues identified in the appellant’s oral submissions as summarised at [37(b)] above alone or cumulatively.

60    First, as to the issue of “tone” identified from [26] above, the appellant’s assertion that the appellant was first told of the listed date for hearing of 16 June 2021 on 26 May 2021 and six business days after the appellant’s submissions were due to be filed on 18 May 2021 might have borne some weight on a disqualification application had that been true. However, the fair-minded lay observer would note that:

(a)    That issue was first raised in the appellant’s affidavit which was provided to the associate and the Minister’s solicitors at 1.25 pm on 2 June 2021, before the hearing scheduled to commence at 2.15 pm (see [27] above) and the appellant’s counsel first raised the disqualification application at the commencement of the hearing; and

(b)    As demonstrated by the Background set out above, the appellant and Mr Williams were clearly acting under a misapprehension that the first time the appellant was advised that the hearing of the appeal was listed for 16 June 2021 was on 26 May 2021. In fact, the appellant’s counsel was advised that the appeal had been listed for hearing on 16 June 2021 on 30 March 2021 by email sent by the associate to him and Ms Saunders.

61    The fair-minded lay observer would conclude that the presiding judge was attempting to draw to Mr William’s attention (for consideration during a brief but necessary adjournment during which the Minister’s advisors would be given time to read the appellant’s affidavit) that an important factual assertion on which the appellant relied on the disqualification application was not correct by reference to two emails (dated 22 and 30 March 2021) which were relied on in the appellant’s affidavit but the email dated 30 March 2021 was not accurately reflected in the appellant’s affidavit (see [27] above).

62    Second, in relation to the use of “demanding” language in the associate’s email sent to the parties at 9.05 am on 31 May 2021 (see [18(a)] above), the fair-minded lay observer would note that:

(a)    The associate’s email sent to Ms Saunders and Mr Williams on Thursday, 27 May 2021 at 12.46 pm requested that they respond “promptly” with respect to availability for a case management hearing on Tuesday, 2 June 2021 at 9.30 am or 2.15 pm;

(b)    Although the Minister’s solicitor had responded at 12.43 pm on Friday, 28 May 2021, the appellant’s counsel had not yet responded as at the morning of Monday, 31 May 2021; and

(c)    The appellant had not filed any documents on 28 May 2021 as foreshadowed in Mr Williams’ email sent to the associate and Ms Saunders on 27 May 2021 at 9.08 am.

63    The fair-minded lay observer would note that the language in the associate’s emails became firmer with time and the accumulation of issues. In those circumstances, having regard to:

    the state of preparation of the matter for a hearing listed to take place on 16 June 2021;

    the foreshadowed scope of the next steps proposed by the appellant in Mr Williams’ email dated 27 May 2021;

    the appellant’s counsel’s advice that he would not be available on 16 June 2021 without explanation;

    the appellant’s counsel’s failure to respond promptly as requested in the associate’s email dated 27 May 2021; and

    the language of the associate’s email, which was not uncivil;

the fair-minded lay observer would conclude that the language of the associate’s email derived from the presiding judge’s concern that the case management hearing be convened promptly with all parties being represented by counsel.

64    In my view, there would be no basis arising from my associate’s email dated 31 May 2021, alone or together with the matters on which the appellant relied to that date, on which the fair-minded lay observer might conclude that I might not being an impartial mind to the matters falling for determination.

65    Third, the next issue relates to the fact that I did not, before the case management hearing, approve for filing the lodged documents with the consequence that the appellant could not serve sealed copies of the lodged documents on the Minister before the case management hearing. It also arises because the associate sent a copy of the lodged documents to Ms Saunders on 1 June 2021 under cover of an email sent to Ms Saunders and copied to Mr Williams containing the salutation “Dear Ms Saunders”.

66    I do not accept that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to issues to be addressed in the appeal, including whether to approve an amended notice of appeal for filing having regard to those circumstances, because the fair-minded lay observer (properly informed) would also know that:

(a)    In the afternoon of Monday, 31 May 2021, Mr Williams advised that he was available for a case management hearing on Wednesday, 2 June 2021 and the parties were advised of the listing: see [18(d)-(e)] above;

(b)    The presentation of the lodged documents for filing was drawn to the presiding judge’s chambers’ attention at 9.05 am on Tuesday, 1 June 2021 by an email from Registry to the associate: see [20(a)] above;

(c)    At 11.34 am on Tuesday, 1 June 2021, the appellant filed written submissions addressing the grounds set out in the proposed amended notice of appeal annexed to the affidavit in support. It might also be observed that the submissions did not comply with the Registrar’s directions concerning page length and presentation of content and the appellant had not requested leave to file submissions inconsistent with the Registrar’s directions made on 20 October 2020;

(d)    The correspondence set out at [20(c)-(i)] above occurred on 1 June 2021, in respect of which the fair-minded lay observer would note that:

(i)    It occurred in the afternoon before the case management hearing on Tuesday 2 June 2021;

(ii)    The associate’s emails, which were sent to both Ms Saunders and Mr Williams, appear to have been prompted by Ms Saunders’ email sent at 2.11 pm on 1 June 2021 proposing that the presiding judge make consent orders that related only to the filing of submissions ahead of a hearing on 16 June 2021. The observer would have considered the email open to the interpretation that the Minister did not know of the lodged documents and that was confirmed upon inquiry by the associate;

(iii)    After Ms Saunders confirmed that the Minister did not know of the lodged documents, the associate’s correspondence initially raised the prospect of the appellant providing unsealed copies of the lodged documents to the Minister (at 2.21 pm) and nothing prevented the appellant from doing that. In view of the fact that the appellant’s counsel had generally not responded promptly to the associate’s correspondence, the fair-minded lay observer would accept that there was reason for concern that the appellant might not provide the lodged documents to the Minister promptly; and

(iv)    The associate’s email sent to Ms Saunders and the Minister at 2.53 pm noted that copies of the lodged documents were provided to the Minister “[i]n light of the proposed [consent] orders provided”.

67    Seized of those matters, the fair-minded lay observer would:

    not apprehend that documents marked “pending” had been refused for filing;

    infer that, among the range of issues to be discussed at the case management hearing, was the impact that the course disclosed in the lodged documents might have on the preparation of the appeal for hearing and the viability the listed date of 16 June 2021; and

    infer that copies of the lodged documents were sent to Minister’s solicitors to ensure that they were properly informed of matters relevant for discussion at the case management hearing.

68    Having regard to the nature of the correspondence, the proximity to the case management hearing and the fact that both Ms Saunders and Mr Williams were copied in all correspondence, the fair-minded lay observer would not apprehend any want of conduct by Ms Saunders (as submitted by Mr Williams) or infer from the associate’s use of the salutation “Dear Ms Saunders” and the provision of copies of the lodged documents to the Minister’s solicitors that the presiding judge might not bring an impartial mind to the resolution of the matters to be determined at the case management hearing in relation to the matters arising out of the lodged documents or on the appeal.

69    Last, Mr Williams said that the claimed “personal attacks” on him were part of the disqualification application. The claimed “personal attacks” were as follows:

(a)    By my question as to whether the appellant had communicated with the Minister seeking documents referred to in the subpoena prior to 31 May 2021 and my focus on the failure to file submissions by the due date without explanation: see [29]–[30] above;

(b)    When I enquired when it was that Mr Williams became aware that the FCCA Judge’s reasons had been published in the context of the timing of filing of submissions having regard to the Registrar’s directions and the presentation of the lodged documents for filing on 31 May 2021: see [33] above.

70    I do not accept that a fair-minded lay observer might reasonably apprehend that questions of the kind that I raised with Mr Williams were “personal attacks” on him or that, as a result of those questions, alone or in combination with the other matters raised in submissions, that observer might reasonably apprehend that I might not bring an impartial mind to the resolution of issues arising from the lodged documents or in the appeal.

71    The fair-minded lay observer would observe that:

(a)    The appellant had been represented by counsel since the notice of appeal was filed on 7 October 2020;

(b)    Timetabling directions had been made on 20 October 2020, after the FCCA Judge had published reasons for orders which were the subject of the notice of appeal filed on 7 October 2020;

(c)    Timetabling directions of the kind made by Registrar McCormick are Court orders;

(d)    Judges expect to be offered an explanation by counsel where there appears to have been a failure to prosecute an appeal in a timely way, including by failing to comply with timetabling directions. If no explanation has been offered, parties and counsel would expect that the Judge will seek explanations for those matters and to test the validity of the explanation by questions directed to counsel;

(e)    It was, at all times since 7 October 2020, a known issue that there may be a need for the appellant to file an amended notice of appeal having regard to the FCCA Judge’s reasons and the FCCA Judge’s reasons were published on 14 October 2020;

(f)    On 30 March 2021, the appellant and the Minister were advised by email sent to Mr Williams and Ms Saunders that 16 June 2021 was the date set down for hearing of the appeal and, by reference to Registrar McCormick’s directions, that 18 May 2021 was the date on which the appellant was due to file submissions;

(g)    At no time before 27 May 2021 was chambers advised that 16 June 2021 would not be an appropriate date for hearing the appeal (because counsel for the appellant was not available on that day) nor, before the appellant’s affidavit was provided to chambers and the Minister’s solicitors at 1.25 pm on 2 June 2021, was any explanation offered for the failure to file submissions in accordance with the timetabling directions;

(h)    The fact that the FCCA Judge’s reasons had not been available on 7 October 2020 does not explain why the appellant could not have sought to file an amended notice of appeal containing the grounds proposed at any time after 14 October 2020 or after 30 March 2021 and before 31 May 2021. The fact that the Registrar’s directions did not address filing of an amended notice of appeal was of no relevance. As submitted by Mr Williams on a number of occasions, there was no impediment to the appellant filing an interlocutory application seeking leave to file an amended notice of appeal at any time;

(i)    The amended notice of appeal attached to the affidavit in support lodged with the Court on 31 May 2021 sought to raise eight new grounds which did not rely on the FCCA Judge’s reasons and which had not been raised in the notice of appeal. Mr Williams’ correspondence with my associate and Ms Saunders sent on 27 May 2021 indicated that the appellant’s “new grounds” would derive from documents discovered from the Minister in a process which had not yet been commenced. The presiding judge’s questions concerning whether there had been correspondence with the Minister prior to the attempted filing (without leave) of the subpoena should be understood to be directed at that issue, which was directly relevant to any timetable for further preparation of the appeal for hearing;

(j)    The fact that the case that the appellant wished to prosecute in the submissions filed on 1 June 2021 relied on the amended notice of appeal and documents to be obtained under a subpoena is not an explanation for why all of that could not have been done before 18 May 2021 when submissions were due to be filed; and

(k)    Those matters called for explanation and were relevant to the further management of the appeal to hearing.

72    In my view, the fair-minded lay observer would conclude that:

(a)    The effect of the appellant’s counsel’s submissions at the case management hearing was that the virtue of the appellant’s cause made compliance with timetabling orders and usual principles of case management irrelevant and neither he nor his client should be answerable for failure to observe timetabling orders and to prosecute the appeal in a timely way;

(b)    Mr Williams submitted that the busyness of his practice was a reasonable excuse for the failure to take steps to progress the appeal in a timely way and the fact that the appellant had work and study commitments on 18 May 2021 was a reasonable excuse for the failure to comply with applicable timetabling orders;

(c)    It is likely that most litigants consider that their cause has virtue, most barristers who appear regularly in the Federal Court of Australia are busy and appellants may have work and study commitments which need to be taken into account in taking steps to comply with timetabling directions;

(d)    Having regard to applicable case management principles designed to achieve the just resolution of all disputes in a timely and cost effective manner, most Judges would enquire as to the reasons for the failure to prosecute the appeal in a timely way or to comply with timetabling orders;

(e)    It is to be expected that most Judges would not accept that the virtue of the appellant’s cause or her barrister’s busyness were reasonable excuses for failure to prosecute the appeal in a timely way or to comply with timetabling orders of which the appellant’s counsel had notice at least six weeks before the time for compliance fell due in light of a listed date for hearing to which no objection had been raised nor would Judges generally accept that a litigant’s work and study commitments are a reasonable excuse for the failure to comply with such timetabling orders; and

(f)    The presiding judge’s questions of Mr Williams were relevant to the further case management of the appeal, legitimate in the context and unsurprising so that they are not properly characterised as “personal attacks”.

CONCLUSION

73    Mr Williams correctly submitted that an indication by a party that it wishes a judge to disqualify himself or herself is not itself a proper ground for a judge to do so. Judges are required to discharge their professional duties unless disqualified by law. They should not accede too readily to an application for disqualification. Accordingly, I dismissed the application made on 2 June 2021.

Associate:

Dated:    21 June 2021