Federal Court of Australia

Hillier v Martin (No 9) [2021] FCA 1319

ORDERS

THE COURT ORDERS THAT:

1.    The second respondent’s oral application for an order that the presiding Judge be disqualified is dismissed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1    On 19 October 2021 I made an order dismissing an oral application for an order that I recuse myself from further presiding in this proceeding (recusal application). Reasons for dismissing the recusal application were delivered orally. The parties were informed that the reasons were incomplete. The parties were informed that written reasons would be prepared and published at the earliest opportunity and that the parties could expect the written reasons to be more expansive than those which had been delivered orally. The time to make an application for leave to appeal from the order has been extended to accommodate the short delay in publishing these written reasons.

2    These proceedings were commenced in August 2020. From their commencement, the applicant has been represented by a solicitor and Counsel, including Senior Counsel. The proceedings are characterised by a considerable amount of interlocutory dispute:  see Hillier v Martin [2021] FCA 269, Hillier v Martin (No 2) [2021] FCA 509, Hillier v Martin (No 3) [2021] FCA 709, Hillier v Martin (No 4) [2021] FCA 710, Hillier v Martin (No 5) [2021] FCA 949, Hillier v Martin (No 6) [2021] FCA 1009, Hillier v Martin (No 7) [2021] FCA 1221 (Hillier No 7) and Hillier v Martin (No 8) [2021] FCA 1272 (Hillier No 8).

3    The most recent interlocutory judgment (Hillier No 8) concerned two issues affecting the defence of the proceedings by the second respondent, Nordburger Operations Pty Ltd. Judgment in respect of those matters had been set down for delivery on 19 October 2021. The matter was set down for a case management hearing on the same day. The dual purpose of the hearing was communicated to the parties by email from the Chambers of the presiding Judge transmitted on 15 October 2021.

4    At 1:31pm on 19 October 2021, the lawyer for Operations, Mr Thomas Martin, sent a letter (by email) to the Chambers of the presiding Judge seeking that two urgent questions be brought to the Court’s attention. The letter asserted that both the presiding Judge and the applicant’s Senior Counsel had a “mutual close friend” in a person who is a former Justice of the Court (hereafter the retired Judge). The letter also asserted that the applicant’s Senior Counsel and the presiding Judge were each members of a Board of the Adelaide University known as the Adelaide University Law School Advisory Committee (the University Committee).

5    The letter sought confirmation “of matters that go to the question of actual or apprehended bias” as follows:

Firstly, what is the extent of the dealings her Honour has had with [Senior Counsel] in the course of their joint membership of the Adelaide University Law School Advisory Committee? Her Honour was appointed to that committee in February 2016 when [Senior Counsel] was already a member. [Senior Counsel’s] current published biographical information states that he is a member of the Committee.

Secondly, what is the extent of any personal familiarity or social interaction between her Honour and [Senior Counsel], both generally but also in connection with their close association with the [retired Judge], formerly a senior member of this Court, who is their mutual close friend?

6    The letter went on to assert that the presiding Judge had refrained to act on previous submissions Mr Martin had made with respect to the applicant’s Senior Counsel’s “unethical conduct in these proceedings” and that there was at least the appearance that “an undisclosed, pre-existing personal relationship between the bench and bar table may stand in the way of justice being served between the parties in this proceeding”. The letter asserted that the issue bore directly on the interlocutory applications set down for judgment that day, such that Mr Martin’s concern should be “addressed and resolved” before judgment was delivered.

ISSUES IN THE PROCEEDING

7    As his letter indicates, Mr Martin has previously made a submission to this Court to the effect that the applicant’s legal representatives have acted “unethically”. That has occurred in two contexts.

8    The first context is an application for interlocutory relief made by the applicant on the face of the originating application at the time that the proceedings were commenced. The applicant sought orders requiring the first respondent to disclose financial records of the trust referred to in previous judgments as the Nordburger Holdings Trust (NH Trust). In his affidavit in support of that application, the applicant expressed a concern that the funds of the NH Trust had been misapplied to fund Mr Martin’s legal expenses in another proceeding in this Court. That concern was repeated in a letter to the South Australia District Registry by which the applicant’s solicitor sought an urgent hearing of the application for interlocutory relief. The applicant’s Senior Counsel appeared at the initial hearing and relied upon the applicant’s affidavit when asked to explain the urgency. Some months later, Mr Martin made an application in his personal capacity for an order suppressing from publication that part of the applicant’s affidavit in which the concerns of dissipation had been expressed. That application was dismissed:  Hillier v Martin. Mr Martin appears to maintain that Senior Counsel’s reliance on the applicant’s affidavit constituted unethical conduct because the applicant’s concern about wrongful dissipation of trust money had no proper evidentiary foundation.

9    By an interlocutory application dated 26 March 2021, the first respondent applied for an order that the applicant’s application for interlocutory relief be struck out as an abuse of process. On 20 May 2021, the Court ordered that argument on the applicant’s application for interlocutory relief (and all other arguments relating to that application) be deferred pending resolution of disputes as to pleadings and the adequacy of discovery. That order was made because an order for standard discovery had been made with the consent of the applicant and the (then) first respondent, their legal representatives both agreeing that deferral of the applicant’s interlocutory application would be sensible. Issues between the applicant and the first respondent in respect of discovery and production are not yet resolved.

10    The second context arises in relation to the facts pleaded by the applicant in support of his claims in the substantive proceedings. Mr Martin’s position is that the allegations of fact pleaded by the applicant are known to be false by the applicant and by the applicant’s legal advisers (presumably including the applicant’s Senior Counsel). That allegation has been made at various times from the bar table, including at case management hearings. It was most recently made in a responsive written submission concerning the admissibility of evidence, and is discussed in Hillier No 8 at [109] – [111]. It is to the effect that all orders made to date in these proceedings should be vacated and the applicant and his advisers be called on to explain what Mr Martin alleges to be a fraud affecting the whole of the proceedings. The Court’s reasons in Hillier No 8 explain why the Court did not engage with the substance of the submission most recently made. As explained below, nothing in the matters raised by Mr Martin on 19 October 2021 provided a proper basis to defer delivery of that judgment.

DISCLOSED FACTS

11    At the commencement of the hearing, the Court read the whole of Mr Martin’s letter aloud. Mr Martin was then provided with information about the extent of professional and personal interaction between the presiding Judge, the applicant’s Senior Counsel and the retired Judge. Mr Martin was informed that it would not be necessary for him to adduce evidence to prove the disclosed information. The disclosed information was to the following effect:

(1)    The purpose of the University Committee is to enable the Adelaide University Law School to liaise with members of the legal profession and the judiciary to ensure that its curriculum and teaching methods meet the needs of the profession. The presiding Judge was appointed to the University Committee in August 2016.

(2)    The most recent meeting of the University Committee attended by the presiding Judge was held in November 2020. The applicant’s Senior Counsel was not in attendance at that meeting.

(3)    In the limited time between the receipt of Mr Martin’s letter and the commencement of the hearing, the presiding Judge had ascertained that there was a meeting of the University Committee in July 2017 at which both the presiding Judge and the applicant’s Senior Counsel attended.

(4)    The most recent social interaction between the presiding Judge and Senior Counsel occurred in 2016 at a social function at the Chambers of Senior Counsel on an invitation extended by all members of those Chambers.

(5)    Whilst a barrister at the independent bar, the presiding Judge had some professional dealings with Senior Counsel, characterised as professional relations between lawyers having mutual respect for each other.

(6)    The presiding Judge had not interacted socially at the level of a friendship with the applicant’s Senior Counsel.

(7)    The presiding Judge was formerly an Associate to the retired Judge.

(8)    The presiding Judge has had a number of social interactions with the retired Judge since 2016. The applicant’s Senior Counsel was not present at any of those occasions.

(9)    Prior to his appointment as a Justice of this Court in 1996, the retired Judge was a member of the same Chambers as the applicant’s Senior Counsel.

12    Following the provision of that information, Mr Martin pressed an application for recusal on behalf of Operations. He confirmed that the application was founded in apprehended rather than actual bias. He informed the Court (not for the first time) that he was in the process of preparing an application for judicial review to be commenced in the original jurisdiction of the High Court of Australia alleging actual bias.

ADDITIONAL ASSERTED FACTS

13    As has been explained, the Court has not required Mr Martin to formally prove the facts referred to at [11] above. The Associateship referred to at [11(7)] occurred in 2002. The retired Judge was a member of this Court between 1996 and 2016.

14    In the course of submissions, Mr Martin made a number of additional factual assertions. It is necessary to explain which of them are established or otherwise accepted and which are not.

15    Mr Martin referred to the transcript of the ceremonial sitting for the retired Judge held on 1 July 2016. At that hearing, the retired Judge said that he held his former Associates in very high regard and expressed gratitude for the assistance they had provided to him. The fact that the retired Judge said those words may be accepted.

16    Mr Martin tendered a record from the Art Gallery of South Australia evidencing the donation of a painting. The donation was made jointly by the applicant’s Senior Counsel and the retired Judge, apparently through the Art Gallery of South Australia Foundation. It is unclear when the donation was made, although the document bears the year 2006. The document demonstrates (and I find) that the applicant’s Senior Counsel and the retired Judge have previously had interactions outside the profession of the law in that they share an interest in providing philanthropic support to the Art Gallery.

17    Mr Martin asserted that a second painting had been donated to the Art Gallery by a group that included the retired Judge and the applicant’s Senior Counsel. This assertion takes the matter no further than is stated in the above paragraph. As the additional donation was referred to at the ceremonial sitting of the retired Judge it must follow that the donation occurred prior to July 2016.

18    Mr Martin asserted that the retired Judge and the applicant’s Senior Counsel were both members of the board of a community organisation related to the Art Gallery but adduced no evidence as to the timing of that membership.

19    Mr Martin asserted (based on his “experience in the law”) that the retired Judge had a “substantial influence” on the appointment of the presiding Judge. It is unclear what factual finding is invited by that submission. I do not consider Mr Martin to be in possession of any knowledge on the topic, and it was not suggested that the presiding Judge has any such knowledge of her own.

20    Mr Martin’s submissions appeared to proceed from the assumption that the applicant’s Senior Counsel presently remains a member of the University Committee of which the presiding Judge remains a member. To the extent that fact was asserted, it was not proven, nor is it a fact known to the presiding Judge such that there is any appropriate disclosure to be made in respect of it. The Court has disclosed that the most recent meeting of the University Committee occurred in November 2020 (which the applicant’s Senior Counsel did not attend). It has not been established that there has been any meeting of the University Committee at any time since the commencement of these proceedings attended by both the presiding Judge and the applicant’s Senior Counsel. The Court has disclosed that there were none. Nor has it been established that there was any such meeting occurring in any reasonable proximity prior to the commencement of the proceedings. Whether (and if so when) the applicant’s Senior Counsel has resigned from the University Committee was not the subject of any evidence or disclosure.

21    Mr Martin’s submissions in support of the recusal application were founded in part on the fact that the Court had not responded to his repeated assertions that the applicant’s additional legal representatives have acted unethically and, in particular, it has not moved of its own motion to sanction or discipline them for the wrongdoing he has alleged. It may be accepted that the Court has not in fact taken any step to make any finding in respect of the allegations directed toward the legal representatives.

22    Mr Martin alleged that the Court has “encouraged [the applicant’s Senior Counsel] to seek from his instructing solicitors any other evidence that might exist that could substantiate the allegations that were made” concerning the use of trust property to fund Mr Martin’s legal proceedings. He submitted that circumstance supported his contention that the original allegation had no proper evidentiary foundation. The assertion of “encouragement” mischaracterises an exchange between the bench and the bar table and is not accepted. At a hearing on 4 August 2021, the Court made the following statement, directing to the applicant’s Senior Counsel:

… your client might wish to give consideration as to whether or not he should inform Mr Martin the extent to which [his] interlocutory application for interlocutory relief remains pressed on the basis, same factual basis, as it was originally pressed.

the test for apprehended bias

23    The well-established test for apprehended bias is that explained in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] – [8]. It was recently discussed and applied by the High Court in Charisteas v Charisteas [2021] HCA 29 (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ). The Court said (at [11]):

…  The apprehension of bias principle is that ‘a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide’. The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps:  first, ‘it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits’; and, second, there must be articulated a ‘logical connection’ between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.

(footnotes omitted)

24    The Court continued:

12    As five judges of this Court said in Johnson v Johnson, while the fair-minded lay observer ‘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’.

13    Ordinary judicial practice, or what might be described in this context as the most basic of judicial practice, was relevantly and clearly stated by Gibbs CJ and Mason J in Re JRL; Ex parte CJL in 1986 by adopting what was said by McInerney J in R v Magistrates’ Court at Lilydale; Ex parte Ciccone in 1972:

‘The sound instinct of the legal profession – judges and practitioners alike – has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined.’

(footnotes omitted)

SUBMISSIONS

25    Mr Martin submitted that the circumstances gave rise to an apprehension that the presiding Judge “may experience some internal constraint upon being seen to or perceived to reprimand or to sanction [the applicant’s Senior Counsel] in respect of his conduct in these proceedings”. He submitted that apprehension might arise because of a consciousness of the respect that the retired Judge has for the applicant’s Senior Counsel. He submitted the apprehension might also arise from the joint membership of the presiding Judge and the applicant’s Senior Counsel on the University Committee. Mr Martin said that it may be an “awkward exercise” for the presiding Judge to subject the applicant’s Senior Counsel to “some degree of professional discipline” including because of his prior involvement with the University of Adelaide. Mr Martin submitted that the concerns did not arise at a mere theoretical level. He went on to repeat allegations of wrongdoing against the applicant’s Senior Counsel. Mr Martin submitted that the Court had in fact refrained from taking “the necessary steps to supervise the legal practitioners” in the proceedings. He submitted that the Court was aware of the deficiency in the evidence concerning dissipation of funds from the trust. Mr Martin submitted that the fair-minded lay observer would expect a judge, when faced with a breach of an ethical rule, to take measures to rectify the issue.

26    Mr Martin referred to a written submission he had made in opposition to one of the applications dealt with in Hillier No 8 to the effect that the Court should seek explanations from the applicant’s legal representatives concerning an alleged divergence between the facts pleaded by the applicant and the evidence in Mr Martin’s possession that he submits proves the pleadings to be knowingly false. He submitted that the Court ought to act on that submission. He submitted that the reasonable lay observer “hypothetically would … be subject to the same concerns and doubts and queries” about whether the presiding Judge might be reluctant or “not be fully capable” of bringing an impartial mind to the proceedings.

27    Mr Martin then complained of the judgment in Hillier No 7 (in which the Court said that the first respondent had no prima facie entitlement to fund her defence from the property of the trust), and emphasised the impact the Court’s interlocutory decisions had and would continue to have on the respondents’ interests.

28    Mr Martin referred to Ambrose v Badcock [2021] FCA 881, a recusal order there being made by the presiding Judge in proceedings concerning a bankrupt respondent because of prior dealings she had with the bankrupt in prior employment which bore some factual relationship to the bankruptcy. Mr Martin submitted that the presiding Judge there took a liberal approach to the application of apprehended bias principles and that the same approach should be taken here.

CONSIDERATION

29    In Charisteas, the facts that were said to give rise to an apprehension of bias (applying the double-might test in Ebner) were readily identified. As disclosed by the barrister for one of the parties, it emerged that whilst proceedings were pending, the barrister had met with the judge for a drink or coffee on approximately four occasions, had spoken with the judge by telephone on a further five occasions, and had exchanged “numerous” text messages with the judge. The High Court concluded that a fair minded lay observer might reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of the questions the judge was required to decide.

30    The Court held that no issue as to the subjective motivation or understanding of the particular judge arose, and that the lack of disclosure in the case was “particularly troubling” (at [19]):

…  It is difficult to comprehend how the trial judge could have failed to appreciate the need to disclose the communications, particularly when he was dealing with the application to recuse himself on other grounds. It may give the hypothetical observer reason to doubt the correctness of the claim by the wife’s barrister that their communications did not concern ‘the substance’ of the case, if the ambiguity inherent in that statement is not itself of sufficient concern.

31    The majority of the Full Court of the Family Court had reasoned that the hypothetical observer would accept that the judge and the barrister would have adhered to professional restraint and accepted that a professional judge who had taken an oath of office would not discuss the case at hand. The High Court rejected that reasoning as erroneous. The hypothetical observer was not to be conceived of as a lawyer but as a member of the public served by the courts, and was not to be imbued with “professional self-appreciation” of that kind:  Charisteas at [21].

32    In the present case the presiding Judge has not acted in such a way as to expose herself to a reasonable suspicion of having had communications of any kind with any lawyer for any party without the previous knowledge or consent of any party in these proceedings. The presiding Judge has not been in the company of the applicant’s Senior Counsel (with or without the consent of any party) whilst these proceedings have been on foot (or at any time reasonably proximate to their commencement) so as to create a circumstance in which there is even a risk of any such communication occurring. I do not understand Mr Martin to have directly submitted otherwise.

33    Mr Martin’s contentions are based upon a process of factual reasoning or supposition that he to attributes to the fair-minded lay observer, namely:

(1)    The evidence concerning the Art Gallery donations some years ago and the circumstance that the retired Judge and the applicant’s Senior Counsel shared chambers until 1996 meant that they are presently in a “close knit” relationship of which the presiding Judge is aware; and

(2)    The circumstance that the retired Judge is a “close mutual friend” of both the presiding Judge and the applicant’s Senior Counsel might cause the presiding Judge to feel awkward or constrained in exercising the Court’s powers in the proceedings in a way that is seen to be adverse to the interests of the applicant’s Senior Counsel.

(3)    Alternatively, or additionally, the presiding Judge would feel so awkward and constrained because of her dealings with the applicant’s Senior Counsel as members of the University Committee; and

(4)    The perceived lack of impartiality is reinforced by the circumstance that the Court has not in fact responded to Mr Martin’s repeated allegations that the applicant’s Senior Counsel has engaged in unethical conduct in circumstances where the fair-minded lay observer would consider that the Court ought to have done so.

34    The first factual proposition is not established. The evidence and disclosures demonstrate that the applicant’s Senior Counsel and the retired Judge had professional connections by their shared barristers’ chambers until 1996 and that some time before 2016 (perhaps as early as 2006) they jointly made two donations to the Art Gallery. On the basis of that evidence, the fair-minded lay observer would not speculate that there existed a close friendship between the applicant’s Senior Counsel and the retired Judge. Nor would the fair-minded lay observer attribute to the presiding Judge knowledge of the existence and nature of the personal and professional connections between the retired Judge and other persons. The application fails for that reason alone.

35    Even if that conclusion be wrong, the remaining propositions are not established.

36    It is Mr Martin’s subjective belief that the Court ought to conduct an investigation into his assertions of unethical conduct against various persons involved in these proceedings. The nature of that investigation, the powers the Court is to exercise on it and the orders it is to make as a consequence of it have not been specified. The fair-minded lay observer must be taken to be aware of the history of the proceedings, including the circumstance that the Court has deferred consideration of the applicant’s original interlocutory application and all related applications for the reasons it has previously given to the parties. The submission that the fair-minded lay observer entertains some concern that the Court has not acted on Mr Martin’s allegations is rejected. In the absence of an allegation of actual bias affecting the Court’s prior decisions, the circumstance that the Court has not acted in the manner personally expected by Mr Martin is not a circumstance that justifies the recusal of the presiding Judge, whether considered alone or in conjunction with other facts and circumstances. In Hillier No 8, the Court explained why it would not on that occasion substantively entertain Mr Martin’s allegations of fraud and its asserted consequences. Nothing in the submissions made on the recusal application gave the Court reason to reconsider anything it has previously said on that topic.

37    The principles of apprehended bias do not prohibit the existence of professional or personal connections between the bench and the bar per se. The High Court in Charisteas emphasised that the obligation to refrain from communications whilst a proceeding is on foot (including to refrain from acting in a way that would give rise to a reasonable suspicion that there have been such communications) is one that persists until the time of judgment, after which communications may be restored. The obligation may also be said to arise in a period of reasonable proximity to the commencement of a proceeding. Whether an apprehension of bias may arise by reference to personal or professional connections pre-dating the commencement of proceedings (in the absence of any communications whilst the proceedings are on foot) must depend on the particular circumstances of the case.

38    Here, there can be no reasonable basis for conjecture that there exists a personal connection between the presiding Judge and the applicant’s Senior Counsel of such a kind that the fair-minded lay observer might reasonably apprehend that the presiding Judge might be unable to bring an impartial mind to bear on any disputed issue. A personal connection between the presiding Judge and the applicant’s Senior Counsel is not to be inferred by reference to the existence of a friend in common in the retired Judge.

39    The existence of the “mutual friend” appears to be the principal circumstance that, in Mr Martin’s submission, might lead the fair-minded lay observer to apprehend that the presiding Judge might not decide the issues arising in this case other than on their legal and factual merits. The factual allegation of a mutual friendship has not been established. But even if it were, there must then be articulated a “logical connection” between that subject matter and the feared departure from the requirement that the presiding Judge decide the matter impartially. The connection is expressed as one amounting to “awkwardness” or “constraint”. The Court understands those words to be synonyms for a concern that the presiding Judge might consciously or subconsciously wish to avoid offending a friend of a friend.

40    One would expect that the concerns of awkwardness or constraint attributed to a judge by reference to an indirect personal connection arising via a mutual friend would be one that would arise all the more in all cases in which a judge has had prior direct personal or professional connections with the lawyer for a party. If the reasoning advanced by Mr Martin were correct, there would be a sufficient basis for recusal arising in every case in which the judge had before him or her a lawyer with whom he or she previously shared chambers or sat on professional committees or shared common interests in the community. Here, the asserted connection is more remote than that.

41    The circumstance that the presiding Judge attended one or more meetings of the University Committee before these proceedings commenced is plainly insufficient to satisfy the test for recusal. The submissions on that topic are not made any more meritorious when considered in combination with the other matters relied upon.

42    The reliance on the reasons of the presiding Judge in Badcock takes the matter no further. The factual basis for recusal in that case is set forth in the judgment and need not be repeated here. Mr Martin submitted that there was a “symmetry” between that case and the present, given that his entitlement to act as a lawyer for Operations was the subject of the judgment to be delivered that day. There is no such symmetry. In Badcock the presiding Judge had disclosed direct prior dealings with a respondent party in relation to subject matter that bore some relation to the issues to be tried.

TIMING

43    The timing of the recusal application was also canvassed in the Court’s ex tempore reasons.

44    As explained below, in all of the circumstances, the timing was such that it was necessary that Mr Martin demonstrate that the various factual bases for the recusal application were not previously known to him, such as to justify the Court deferring judgment in Hillier No 8 to hear and adjudicate upon it. The Court nonetheless heard and determined the recusal application on its substantive merits, such that issues related to timing are to be understood as providing a separate and distinct basis for dismissing the application.

45    Timing issues arise because Mr Martin had foreshadowed over some weeks an application for recusal without informing the Court or the parties of the facts upon which the foreshadowed application might be based. The relevant history is as follows.

46    At a case management hearing on 9 September 2021, Mr Martin told the Court that Operations was considering filing a recusal application. The Court fixed a date by which any such application should be filed, namely 15 September 2021. It required that any such application be supported by an affidavit deposing to all of the facts relied upon. The Court explained that in the event that any such application was filed, Mr Martin would be at liberty to argue that it should be heard and determined before the other interlocutory applications pending before the Court. No such application was filed.

47    The interlocutory matters dealt with in Hillier No 8 included the applicant’s interlocutory application dated 8 September 2021 seeking an order that Mr Martin be restrained from acting as the legal representative for Operations. Mr Martin did not attend at a hearing on 28 September 2021, being the date upon which that interlocutory application had been set down for hearing. The hearing was adjourned to 29 September 2021. As explained in Hillier No 8, Mr Martin attended by telephone on that day. He asserted that he did not attend the hearing on 28 September 2021 because he had formed the view that the proceedings were affected by bias. He said that he was preparing an application to be commenced in the High Court for relief in that respect. He did not make any recusal application to this Court at that time. Mr Martin sought and was provided with an opportunity to file written submissions in opposition to the applicant’s application, but he did not avail himself of that opportunity. Judgment in Hillier No 8 was prepared and set down in light of those circumstances.

48    At a hearing on 11 October 2021, Mr Martin again informed the Court that he was in the process of preparing an application for judicial review to be filed in the High Court alleging that these proceedings are affected by actual and apprehended bias. He did not suggest that the hearing of the argument that occurred on that day should be deferred and he did not disclose the facts upon which the application to the High Court was to be based. No recusal application was filed at that time. The Court informed Mr Martin that if he was aware of facts that would support a recusal order, the facts should be brought to the Court’s attention, as it might otherwise be found that Operations had waived its right to later apply on those grounds:  see Vakauta v Kelly (1989) 167 CLR 568 at 587.

49    In the course of argument on the present application, the Court raised with Mr Martin the timing of his application and the circumstance that he had previously been ordered to file an application for recusal but had not done so. Mr Martin responded that he had “never waived the issue of apprehended bias or bias of any kind”. Despite the Court’s prompting submissions on the topic, he did not adduce any evidence to show when he first came into possession of the information upon which the recusal application was based. He asserted (as he had done in his letter) that he had only obtained evidence supporting the application that day.

50    On the evidentiary material before it, the Court was not able to make any finding as to when the information upon which the application was based had come into Mr Martin’s possession. It expressed the view that it could not be satisfied that Operations had not previously waived its right to object to the presiding Judge continuing to preside (as Mr Martin had submitted). In light of the history described above, that lack of satisfaction had the consequence that the recusal application brought at the eleventh hour immediately prior to the delivery of judgment was considered by the Court to constitute an abuse of its processes.

51    After the delivery of ex tempore reasons on the recusal application, Mr Martin complained that the Court had not foreshadowed its finding that there was no admissible evidence demonstrating the timing of his acquisition of knowledge of the facts upon which he had relied. He complained that if the Court had foreshadowed that it would not accept his assertions as to timing at face value, he would have adduced evidence going to the topic. He sought to adduce that evidence after the conclusion of judgment. The Court declined to reopen the issue, for two reasons.

52    First, Mr Martin’s primary submissions proceeded for nearly an hour, during which he adduced no evidence. In his submissions in reply, Mr Martin complained that he had been cut short in his submissions and so denied the opportunity to tender documents. He was then afforded an opportunity to adduce the evidence upon which he relied. He tendered the record from the Art Gallery referred to earlier in these reasons. No other documents were tendered.

53    Second, it ought to have been apparent to Mr Martin as an experienced lawyer that the Court in determining questions of fact must act on admissible evidence. The Court expressly raised the topic of the timing of the application with Mr Martin in the course of oral submissions, so as to alert him to the circumstance that the Court may have regard to that issue. Mr Martin indicated his comprehension of the significance of the topic by asserting that Operations had not waived its right to object.

54    In all of the circumstances, the Court determined not to reopen the question to receive the additional evidence, including because the evidence concerning timing would not alter the Court’s disposition of the application on the substantive merits in any event.

55    The Court proceeded to deliver judgment in Hillier No 8 and to conduct the case management hearing. The Court explained to the parties that it was not satisfied that the application made by Operations should delay the progress of the matter as between the applicant and the first respondent. The Court explained that it was not satisfied that Operations (as a trustee) has an identifiable interest affected by the outcome of the proceedings sufficient to warrant the deferral of judgment or the vacation of the case management hearing.

Associate:

Dated:    19 October 2021