Federal Court of Australia

Dunstan v Orr [2022] FCA 1006

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application that Wigney J recuse himself from hearing this matter on the grounds of apprehended bias or actual bias, being prayer 1 in the applicant’s interlocutory application filed on 20 July 2022 (the recusal application), be dismissed.

2.    The applicant pay the respondents’ costs of and associated with the recusal application, including the costs of their legal advisers preparing for and appearing at the hearing on 2 August 2022.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    Mr Colin Dunstan is the applicant in a proceeding commenced in this Court against the Commonwealth of Australia and three former officers of the Australian Taxation Office (ATO), Ms Robyn Orr, Mr John Higham and Mr John Growder (collectively, the respondents). Mr Dunstan alleges, in short summary, that Ms Orr, Mr Higham, Mr Growder and another former officer of the ATO, Dr John Molineux, gave false evidence in proceedings in this Court that Mr Dunstan commenced in October 1997. Those earlier proceedings, which were eventually heard by Besanko J in July 2007, were dismissed with costs in January 2008: Dunstan v Orr (2008) 217 FCR 559; [2008] FCA 31 (the 2007 proceedings). The relief sought by Mr Dunstan in the current proceeding includes an order setting aside the judgment in the 2007 proceedings on the basis that it was procured by fraud, as well as damages for negligence on the part of the Commonwealth.

2    The current proceeding is at an early stage. There have been two case management hearings at which procedural orders were made for the further conduct of the proceeding. More will be said later about those case management hearings and procedural orders. It suffices at this point to note that the respondents have filed an interlocutory application in which they seek either the summary dismissal of Mr Dunstan’s application, or an order striking out his pleading (the summary judgment application). For his part, Mr Dunstan has filed two interlocutory applications. In the first of those interlocutory applications, Mr Dunstan seeks orders relating to the production and inspection of an unredacted version of a document that is said to contain handwritten notes made by Dr Molineux (the production application). The respondents’ summary judgment application and Mr Dunstan’s production application are currently set down for hearing on 20 and 21 September 2022. In Mr Dunstan’s second interlocutory application, he seeks various orders, including that I recuse myself from hearing this matter on the grounds of apprehended and actual bias, that the respondents’ summary judgment application be summarily dismissed and that either default judgment or summary judgment be given in his favour in respect of the principal proceeding (the recusal application).

3    For reasons that will be explained shortly, this judgment deals only with Mr Dunstan’s recusal application.

A procedural issue

4    It is first necessary to deal with a procedural issue that arose in respect of the hearing of Mr Dunstan’s recusal application.

5    After the recusal application was filed, a client services officer in the Court’s registry wrote to the parties and advised that I was minded to hear the recusal application on 2 August 2022. The parties were asked to indicate their position in relation to that proposal. In Mr Dunstan’s reply, he proposed that the application be heard in the week following 2 August 2022. He did not, however, state that he was unavailable on 2 August 2022. The respondents’ solicitors advised that they were able to appear at a hearing on 2 August 2022. The application was subsequently listed for hearing on 2 August 2022. As will be seen, Mr Dunstan has added the listing of the hearing of the recusal application on 2 August 2022 to his litany of complaints that form the basis of the claim of actual bias.

6    On 27 July 2022, Mr Dunstan sent an email to the registry in which he stated that he was “feeling very unwell yesterday” and that he was “sick today, with bad flu”. After noting that he had been unable to complete his written submissions in respect of the production application by the stipulated date, Mr Dunstan said that, with “uncertainty” about his health, he was “not available for a hearing” on 2 August 2022 and that he requested that the hearing on 2 August 2022 be vacated. At risk of stating the obvious, it should be noted that Mr Dunstan’s email request to vacate the hearing of his recusal application was not supported by a medical report or certificate, let alone an affidavit. On 28 July 2022, a client services officer in the registry advised Mr Dunstan by email that the matter remained fixed for hearing on 2 August 2022 and that the grounds outlined for the vacation of the hearing were not considered sufficient to justify his request to vacate the hearing. Mr Dunstan did not reply to the client services officer’s email.

7    When the recusal application was called for hearing on 2 August 2022, counsel appeared for Mr Dunstan “in a limited role”. That role was to apply for an adjournment of the recusal application on Mr Dunstan’s behalf. It soon became apparent that counsel also had very limited instructions in respect of the basis of the adjournment application. The adjournment application was opposed by the respondents.

8    The respondents were given no advance notice of the adjournment application. Nor was the Court. As just noted, Mr Dunstan did not reply to the email the client services officer sent to him on 28 July 2022.

9    Counsel for Mr Dunstan advised that the basis of the adjournment application was that Mr Dunstan had been diagnosed with COVID-19 and had been required to isolate by ACT Health. Counsel tendered two documents in support of the adjournment application.

10    The first document was headed “Case Investigation Interview”. It included a message, apparently addressed to Mr Dunstan, which included the following:

If you need urgent medical assistance call 000 and tell them that you have tested positive for COVID-19. We need you to tell other members of your household to get tested and isolate immediately.

If you need assistance to complete this form, phone [number not included in this extract]

You must self-isolate for at least 7 days until you are cleared by ACT Health.

Because you have tested positive for COVID-19, ACT Health is asking the following questions to help us support you and keep us all safe

11    The document then contained a note which suggested that Mr Dunstan had responded electronically to ACT Health’s questions on 30 July 2022, though the response itself did not appear in the document. The document also stated: “[t]hese are the details that we have received with your positive COVID-19 result”. The details were simply Mr Dunstan’s name and date of birth.

12    Counsel who appeared for Mr Dunstan on the adjournment application was unable to provide any meaningful details concerning the precise nature and provenance of this document. While the document tended to suggest that Mr Dunstan had tested positive for COVID-19, it was unclear who administered the test, what type of test was administered, or when the test was administered, or when the result was received. The fact that Mr Dunstan had responded to ACT Health’s questions on 30 July 2022 tended to suggest that the test result must have been received on or before that date.

13    The second document that was tendered was a prescription for a drug, “Molnupiravir 200mg Capsule”, which had been issued to Mr Dunstan by a doctor on 31 July 2022. Counsel for Mr Dunstan indicated from the bar table that he understood that the drug referred to in the prescription was “the antiviral prescribed for COVID-19”. Counsel was unable to provide any further information concerning the provenance of this document.

14    It was open to infer from the prescription that Mr Dunstan had consulted a doctor on 31 July 2022. It would seem, however, that Mr Dunstan did not obtain any medical certificate or report from the doctor concerning his state of health, or the symptoms, if any, that he was suffering as a result of his apparent contraction of COVID-19. If he did obtain a medical certificate or report, he did not provide it to his counsel. Counsel for Mr Dunstan was unable to assist further in relation to Mr Dunstan’s condition or state of health. That is not intended to be a criticism of counsel. The point is that counsel appears to have been given very limited instructions in respect of the adjournment application.

15    As noted earlier, the respondents opposed the adjournment application. The respondents submitted, amongst other things, that it was entirely unacceptable that Mr Dunstan had failed to give them or the Court notice of the adjournment application, particularly as his engagement with ACT Health had occurred some days prior to the hearing. More significantly, the respondents pointed to the deficiencies in the evidence adduced in support of the application, in particular the fact that there was no evidence of any sort from the doctor that Mr Dunstan had apparently consulted about his illness. The respondents also noted that Mr Dunstan’s counsel had apparently not been provided with any meaningful instructions concerning Mr Dunstan’s state of health.

16    The evidence relied on in support of the adjournment application was plainly deficient. As already noted, the nature and provenance of the document that was said to record that Mr Dunstan had contracted COVID-19 was, at best, unclear and uncertain. The key deficiency, however, was the absence of any medical certificate or report from the doctor that Mr Dunstan had consulted. No explanation for that deficiency was forthcoming. The critical point is that, even if the documentary evidence was capable of establishing that Mr Dunstan had contracted COVID-19 and was required to self-isolate, there was no evidence that his state of health was such that he was unable or incapable of appearing at the hearing via an audio-visual link. The two case management hearings that had previously been conducted were both conducted via an audio-visual link.

17    There was also no indication of when Mr Dunstan would be able to appear at a hearing of the recusal application if it was to be adjourned. This was a critical consideration. The Court had very limited availability between 2 August 2022 and 20 September 2022, the latter date being when the respondents’ summary judgment application and Mr Dunstan’s production application were listed for hearing. It followed that, if the hearing of Mr Dunstan’s recusal application was adjourned to a date to be fixed, the almost inevitable result would have been that the listing for 20 September 2022 would have had to be vacated.

18    It would, in all the circumstances, have been open to the Court to dismiss Mr Dunstan’s adjournment application and either dismiss the recusal application given his non-appearance (counsel for Mr Dunstan having indicated that he was instructed to withdraw if the adjournment application was refused), or hear the recusal application in Mr Dunstan’s absence. I decided, however, that the preferable course was to partly adjourn the recusal application. As noted earlier, in addition to seeking that I recuse myself, the recusal application sought additional orders, including that the respondents’ summary judgment application be summarily dismissed and that default or summary judgment in the principal proceeding be entered in Mr Dunstan’s favour. Those aspects of Mr Dunstan’s recusal application were related to, and readily able to be heard at, the hearing on 20 September 2022, either before or in conjunction with the respondents’ summary judgment application. Those aspects of the recusal application were accordingly adjourned to be heard on 20 September 2022.

19    As for Mr Dunstan’s recusal application itself, I considered that it was appropriate in all the circumstances to determine that application without an oral hearing and on the basis of the lengthy and detailed written material that had already been filed. Mr Dunstan was, however, given an opportunity to file written submissions in reply to the respondents’ submissions in respect of the recusal application. Mr Dunstan was also given the opportunity to file any evidence he wished to rely on in opposition to the respondents’ application for costs, assessed on an indemnity basis, thrown away as a result of the adjournment application.

20    Mr Dunstan subsequently filed further written submissions. Those further written submissions were lengthy (15 pages) and travelled beyond replying to the respondents’ written submissions. Mr Dunstan also filed a lengthy further affidavit. That affidavit was not limited to addressing the respondents’ application for indemnity costs. The further submissions and further affidavit have nevertheless been considered in their entirety and along with Mr Dunstan’s other affidavit evidence and submissions in respect of the recusal application.

A SHORT HISTORY OF THE PROCEEDING

21    Mr Dunstan commenced the present proceeding on 10 November 2021 by the filing of an originating application and concise statement. The proceeding was listed for a first case management hearing on 1 March 2022. The matter was allocated to my provisional docket as the judge responsible for case managing matters filed in the Australian Capital Territory registry of this Court.

22    It would perhaps not be unfair to say that it was (and in certain respects still is) somewhat difficult to glean the precise factual and legal basis of Mr Dunstan’s claim from the originating application and concise statement. That is not to be critical of Mr Dunstan, who is not legally qualified or represented. Rather, it serves to explain what followed in terms of case management.

23    Shortly after commencing the proceeding, and well before the first case management hearing, Mr Dunstan filed a request for leave to issue a subpoena. As will be seen, Mr Dunstan’s bias claims depend in part on the manner in which that subpoena request was dealt with.

24    The proposed subpoena was to the Commissioner of Taxation. If issued, it would have required production of the following documents:

1.    Any documents or things that are evidence that an undated “final report” repeating the content of a draft report dated 11 July 1997 by John Higham of the Australian Taxation Office was created in September or October 1997, and

2.    Two complete unredacted copies of notes made by John Molineux of the Australian Taxation Office during 1997 mostly or entirely concerning actions in connection with the employment of Colin George Dunstan:

(a)    Those copies the Australian Taxation Office sent by facsimile transmission to the Australian Government Solicitor in December 1998, some of which were supplied in response to an AAT summons in 2009, and

(b)    Those copies the Australian Taxation Office provided in response to an ACT Supreme Court subpoena in 2013.

25    The following brief points may be made in respect of the request for leave to issue the subpoena to the Commissioner of Taxation.

26    First, it is somewhat unusual and by no means in accordance with usual practice to seek leave to issue a subpoena at such an early stage of the proceeding, in particular before even the first case management hearing. That is all the more so when the proposed subpoena is addressed to the opposing party. Production from the opposing party is typically sought by an order for discovery, usually at a later stage of the proceeding, or even a notice to produce.

27    Second, as the Court’s practice note in respect of subpoenas makes tolerably clear, written requests for leave to issue subpoenas (as opposed to requests made orally at a case management hearing) are referred to the chambers of the judge responsible for case managing the relevant proceeding: Subpoenas and Notices to Produce Practice Note (GPN-SUBP) at [3.1]. The request filed by Mr Dunstan was accordingly referred to my chambers, as Mr Dunstan’s case was provisionally in my docket because it was filed in the Court’s registry in the Australian Capital Territory.

28    Third, the apparent or adjectival relevance of the categories of documents the subject of the subpoena was, at best, unclear and uncertain given the relative opacity of the originating application and concise statement.

29    Fourth, I refused leave to issue the subpoena essentially on the basis that the apparent or adjectival relevance of the documents sought by the subpoena was unclear. The proceeding was also at a very early stage.

30    Fifth, a refusal to grant leave to issue a subpoena is plainly an interlocutory, not final, order. It is open to a party to seek to re-agitate the question of leave. In particular, it is open to a party to re-agitate the question of leave at a case management hearing. When I refused leave, I envisaged that Mr Dunstan could, and most likely would, raise the issue concerning the proposed subpoena at the first case management hearing.

31    Sixth, decisions in respect of written requests for leave to issue subpoenas are typically made in chambers. Written reasons are not necessarily or ordinarily given where leave is refused, particularly in the absence of a request for reasons. The expectation is that, if a party who has been refused leave wishes to press for the grant of leave, the party will make submissions in respect of that issue in open court at the next case management hearing. As noted earlier, that is what I envisaged would occur in the case of Mr Dunstan’s request for leave to issue the subpoena.

32    Seventh, a client services officer in the Court’s registry promptly advised Mr Dunstan that his request for leave to issue the subpoena to the Commissioner of Taxation was refused. More significantly, Mr Dunstan was advised at the outset, and repeatedly, that any further requests in respect of the proposed subpoena could be addressed at a case management hearing before the docket judge.

33    Eighth, in all the circumstances, it must, or should have been, readily apparent to Mr Dunstan that leave to issue the subpoena had been refused by the docket judge and that he could request reasons, or press for the issue of the subpoena, at the first case management hearing. As events transpired, Mr Dunstan did continue to press for the production of documents at the subsequent case management hearings.

34    At the first case management hearing on 1 March 2022, I raised with Mr Dunstan the fact that his concise statement did not clearly identify the nature of his claim and asked him to provide a short summary of the nature of his case. Mr Dunstan’s summary of his case indicated that his factual allegations extended back as far as 1997 and had been the subject of previous proceedings. The central allegation in his case, however, appeared to be that Ms Orr, Mr Higham, Mr Grower and Dr Molineux gave false evidence in the 2007 proceedings. Mr Dunstan also asserted that his factual allegations gave rise to causes of action in fraud and negligence against the Commonwealth. I indicated to Mr Dunstan that, given the apparent complexity of his case and the seriousness of his allegations, it would be appropriate for his case to proceed on pleadings. He did not demur. Mr Dunstan was accordingly ordered to file a statement of claim on or before 29 March 2022.

35    The main issue ventilated at the first case management hearing in relation to the appropriate procedural orders was the appropriate time for the filing of a defence by the respondents once Mr Dunstan had filed a statement of claim. That issue was complicated by the fact that counsel for the respondents indicated that the respondents were contemplating filing a summary judgment or strike-out application. Having heard submissions from both Mr Dunstan and the respondents’ counsel in relation to that issue, I ordered that the respondents file any application for summary judgment or the strike-out of the pleading by 10 May 2022 and that the matter be listed for a further case management hearing on 18 May 2022. It was indicated that if no such application was filed, orders would most likely be made for the filing of a defence at the next case management hearing. I explained to Mr Dunstan that my reasons for not requiring the respondents to file a defence prior to the next case management hearing included that his factual allegations were serious, complex and extended back many years and that in all the circumstances the respondents were entitled to a proper opportunity to consider their position in the light of his forthcoming pleading.

36    Mr Dunstan also submitted that the Court should make procedural orders relating to subpoenas and discovery. I indicated to Mr Dunstan that I did not propose to make any such orders at such an early stage of the proceeding and that it was inappropriate to allow him to utilise the compulsory processes of the Court before he had clearly pleaded his case. Mr Dunstan was given every opportunity to advance submissions in respect of this issue.

37    Mr Dunstan filed a statement of claim on 28 March 2022 in accordance with the orders made on 1 March 2022. It is unnecessary, for present purposes, to discuss Mr Dunstan’s pleading in any great detail. It suffices to note that the pleading contains detailed and serious allegations against Ms Orr, Mr Higham and Mr Growder. Mr Dunstan alleges that each of them, as well as Dr Molineux, gave false evidence, either knowingly or recklessly, and concealed contradicting evidence in the course of the 2007 proceedings. The judgment in those proceedings is alleged to have been procured by the fraud perpetrated by Ms Orr, Mr Higham and Mr Growder. It would appear that the 2007 proceedings were proceedings in which Mr Dunstan sought judicial review of certain decisions that were said to have been made by Ms Orr, Mr Higham and Mr Growder which culminated in Mr Dunstan being charged with misconduct under the Public Service Act 1922 (Cth).

38    Mr Dunstan also alleges that the Commissioner of Taxation for the Commonwealth owed him a duty of care, though the precise nature of the duty of care is somewhat unclear. In any event, Mr Dunstan alleges that the Commonwealth breached its duty of care in various ways, including: “by its officers and former officers giving false evidence”, and by its legal representative failing to comply with its obligations under the Legal Profession Act 2006 (ACT), and the rules made thereunder, by failing to inform both this Court and the Supreme Court of the Australian Capital Territory that Ms Orr, Mr Higham and Mr Growder had “lied and suppressed material” in the 2007 proceedings and the proceedings that Mr Dunstan had pursued in the Supreme Court. The proceedings that Mr Dunstan commenced in the Supreme Court, which were also against Ms Orr, Mr Higham and Mr Growder, appeared to overlap with and involve many of the same allegations as those that Mr Dunstan has pursued in the 2007 proceedings. The proceedings in the Supreme Court were dismissed with costs in 2014.

39    On 6 May 2022, the Court made consent orders the effect of which was to extend the time for the respondents’ compliance with the previous orders to 16 May 2022 and to move the case management hearing to 28 June 2022.

40    It would appear that, prior to the next case management hearing on 28 June 2022, a war of words broke out between Mr Dunstan and the respondents’ solicitors about whether, despite what had transpired at the first case management hearing, and despite the fact that the respondents had filed an interlocutory application in accordance with the orders made on 1 and 6 March 2022, the respondents were nonetheless required to file a defence to Mr Dunstan’s statement of claim within the time prescribed in the Federal Court Rules 2011 (Cth). It was, or should have been, readily apparent to Mr Dunstan from what transpired at the first case management hearing that the ordinary rule in relation to the filing of a defence had been supplanted by the orders that had been made and that I would, at the next case management hearing, consider making an order requiring the respondents to file a defence if no application for summary judgment or the striking-out of Mr Dunstan’s pleading had been filed.

41    The dispute between Mr Dunstan and the respondents concerning the filing of a defence culminated in Mr Dunstan sending an email to the Court on 9 May 2022 which, in effect, requested the Court to enter default judgment against the respondents. On 10 May 2022, a client services officer in the Court’s registry advised Mr Dunstan that I was not minded to make the orders sought by him, and that the dispute between him and the respondents concerning the filing of a defence would be resolved at the next case management hearing.

42    That communication apparently did not quell the burgeoning procedural disputes between the parties or deter them from communicating with the Court about those disputes. The parties sent competing draft orders to the Court and were in due course advised by a client services officer that I was not minded to address the issues that had arisen between them prior to the next case management hearing. It is, as a general proposition, unsatisfactory and inappropriate for the parties to proceedings to bombard the Court with correspondence and expect the Court to resolve significant procedural and interlocutory disputes between them via email, other than in fairly exceptional circumstances.

43    On 8 June 2022, Mr Dunstan filed the production application which, as discussed earlier, sought, amongst other things, production of unredacted versions of Dr Molineux’s notes. On 24 June 2022, the respondents’ solicitors sent my associate draft orders for consideration at the case management hearing. It was indicated that Mr Dunstan did not agree with the proposed orders. The orders proposed by the respondents provided a timetable for the filing of evidence and submissions in respect of both the respondents’ summary judgment application and Mr Dunstan’s production application.

44    On 27 June 2022, the day before the second case management hearing, Mr Dunstan filed lengthy and detailed written submissions concerning his interlocutory application, despite not having been ordered or granted leave to do so.

45    The case management hearing on 28 June 2022 was fairly lengthy. Mr Dunstan made lengthy and detailed submissions in opposition to the orders sought by the respondents and in support of the proposition that the Court should order the Commonwealth or the Commissioner of Taxation to produce for inspection an unredacted copy of the notes of Dr Molineux and various associated documents prior to the hearing of the respondents’ summary judgment application. Counsel for the respondents also made lengthy submissions as to why the Court should not order the documents sought by Mr Dunstan to be produced prior to the hearing of the summary judgment application and, if it comes to it, the close of pleadings and the joinder of issue in the proceeding.

46    It was readily apparent that there was a considerable overlap between the issues that arose in respect of the parties’ competing interlocutory applications. It was also readily apparent that the issues were complex and not able to be properly considered and dealt with at very short notice in the context of a case management hearing. Having heard the competing submissions of the parties, I made orders the general effect of which was to list the two interlocutory applications for hearing on 20 September 2022 and to provide for the filing of evidence and submissions in respect of those applications. It was made abundantly clear that I would hear Mr Dunstan’s production application first. If I decided to make orders requiring production of the relevant documents, I would then give Mr Dunstan time to inspect the documents and consider his position in relation to the hearing of the respondents’ summary judgment application, including whether he wanted to apply for an adjournment of the hearing of the interlocutory application so as to give him more time to consider his position.

47    On 27 July 2022, Mr Dunstan filed the recusal application. The circumstances surrounding the listing of the hearing of the recusal application were discussed earlier. For the reasons given earlier, Mr Dunstan’s application for me to recuse myself has been determined on the papers.

A SHORT SUMMARY OF THE BIAS ALLEGATIONS

48    Mr Dunstan has identified three grounds in support of his allegation of apprehended bias.

49    The first ground is that he is a “person of public notoriety” and that “an assumption of apprehended bias is warranted for this reason alone”. It is not entirely clear why Mr Dunstan says that he is a person of public notoriety, though it may be because in December 1998 he was charged with, and in April 2000 convicted of, offences involving the sending of explosive devices through the post to several people, including Mr Higham and Mr Growder. Mr Dunstan was sentenced to a total term of imprisonment of 11 years with a non-parole period of five years. There is, however, no real evidence of any current public notoriety attaching to Mr Dunstan as a result of his conviction for those offences.

50    The second ground of Mr Dunstan’s allegation of apprehended bias is based on the fact that, in the course of a speech I made when sworn in as a judge of this Court, I said, referring to my former chambers, Third Floor St James’ Hall Chambers, that: “[f]amous victories against self-represented litigants in the Wallsend Local Court became the stuff of third floor folklore”. Mr Dunstan alleges that, in making that statement, I “expressed an attitude of bravado towards legal victories over self-represented litigants”. Mr Dunstan is self-represented in this proceeding.

51    The third ground, again apparently based on my swearing-in speech, is that I have a “long-standing relationship with Ian Temby”, having referred in my speech to Mr Temby having been “about as close to being my mentor as anyone”. Mr Ian Temby AO QC was the chairman of Third Floor St James’ Hall Chambers during much of my time in those chambers. He is married to Ms Diana Temby, who was formerly the Director of the Human Rights and Equal Opportunity Commission (HREOC).

52    Mr Dunstan adduced documentary evidence which indicated that, in 1998, Ms Temby contacted the Australian Federal Police and “nominated [Mr Dunstan] as being a suspect for device” and as being someone who had “technical knowledge to make such a device”. That contact was presumably made in the context of the police investigation into the explosive devices that ultimately led to Mr Dunstan’s conviction. One of the devices that had been detected at this point had been addressed to HREOC. Ms Temby also told a police officer at the time that HREOC had been dealing with complaints that Mr Dunstan had made in relation to his treatment by the ATO, that in her dealings with Mr Dunstan he was “highly emotionally unstable”, that Mr Dunstan had made threats to various members of HREOC, and that he was “highly intelligent” and “technically capable of constructing an improvised explosive device”.

53    Mr Dunstan’s allegations concerning actual bias are based entirely on my case management of the proceeding to date. His main allegations appear to be as follows.

54    First, I refused him leave to issue the subpoena to the Commissioner of Taxation “in a manner so that both [my] identity as the decision-maker was concealed and the reason for [my] decision was never disclosed”.

55    Second, at the first case management hearing I failed to “admonish” the respondents’ solicitors for failing to comply with the Central Practice Note of this Court. The alleged failure to comply with the practice note on the part of the respondents’ solicitors appears to have been their failure to disclose documents in their possession – presumably those covered by the proposed subpoena – which may have assisted in reducing the time and cost of the litigation.

56    Third, I “excused” the respondents from complying with the Rules. The alleged non-compliance would appear to relate to the fact that the respondents did not file a defence to Mr Dunstan’s statement of claim within the time prescribed in the Rules.

57    Fourth, I refused to enter default judgment against the respondents, as requested by Mr Dunstan, consequent on them not having filed a defence within the prescribed time.

58    Fifth, I gave the respondents “verbal consent that [I] would excuse [them] from the requirement to file a defence if they chose to file a summary dismissal application”. It would appear that this “verbal consent” was given at the second case management hearing.

59    Sixth, in setting Mr Dunstan’s recusal application down for hearing on 2 August 2022, as opposed to the dates proposed by him, I treated him with contempt and “put [him] in his place”.

60    Seventh, in refusing to vacate the hearing on 2 August 2022, I wilfully ignored what he had to say and had no regard to any disadvantage that that would cause him to suffer.

61    In his reply submissions, Mr Dunstan appeared to expand his complaints to encompass virtually every aspect of my management of the proceeding to date. In those submissions, Mr Dunstan commences with a “working hypothesis” that I am “unduly influenced” by the Commissioner of Taxation and proceeds to analyse all that has occurred in the matter to date through that lens. His submission culminates in the contention that my conduct of the proceeding to date provides “compelling evidence of actual bias”, apparently because it reveals that I have been favouring the respondents and “bending to their wishes”.

RELEVANT PRINCIPLES

62    As has already been noted, Mr Dunstan alleges both actual and apprehended bias.

Actual bias

63    Actual bias “exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant”: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 134E (North J, citing Wannakuwattewa v Minister for Immigration and Ethnic Affairs (unreported, Federal Court, North J, No VG451/1994, 24 June 1996)) and Singh v Minister for Immigration and Ethnic Affairs (unreported, Federal Court, Lockhart J, No 902/96, 18 October 1996). The question is not whether a decision-maker’s mind is blank, or whether there is an “absence of any predisposition or inclination for or against an argument or conclusion”; rather, the “state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [71]-[72] (Gleeson CJ and Gummow J); see also Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 at 576 (Dawson J).

64    Actual bias is usually difficult to prove: Sun at 134F-134G. It is also an allegation that “is not to be made lightly”: Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 424; [2001] FCA 565 at [79] (Stone J). It requires a subjective assessment of the state of mind of the judge in question: Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [33]. A “finding of bias is a grave matter, different in kind from a finding of mere error, or even wrong-headedness, whether in law, logic, or approach”: Sun at 127C (Burchett J). Courts have rarely found actual bias to exist, principally because “a reasonable apprehension of bias suffices to disqualify a judicial officer” and where “actual bias exists, reasonable apprehension of bias will also exist and, consequently, courts concerned with supervising the application of the requirements of natural justice have not had to go so far as to find actual bias”: Sun at 134F (North J).

Apprehended bias

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

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

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

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

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

(Footnotes omitted.)

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

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

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

… At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. …

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

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

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

72    I should add in this context that in AJH Lawyers Pty Ltd v Careri (2011) 34 VR 236; [2011] VSCA 425, the Court of Appeal of the Supreme Court of Victoria, noted, amongst other things, that while judges should normally give an applicant reasonable opportunity to make submissions, “[j]udges do not have to devote unlimited time to listening to unmeritorious arguments … [s]ometimes, a brief hearing will suffice” (at [25], citing Gleeson CJ in Antoun v R (2006) 224 ALR 51; [2006] HCA 2 at [22]).

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

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

(Footnotes omitted.)

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

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

(Footnote omitted.)

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

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

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

CONSIDERATION AND DETERMINATION

78    It is appropriate to first consider Mr Dunstan’s allegation of actual bias. I will also consider whether the grounds relied on by Mr Dunstan in support of his allegation of actual bias are capable of demonstrating apprehended bias.

Actual bias not established

79    As the authorities discussed earlier indicate, to establish actual bias on my part, Mr Dunstan must prove that I have prejudged his case and am not open to persuasion – that I have reached a conclusion in respect of his case which is incapable of alteration, whatever evidence or arguments may subsequently be presented. The only evidence he relied on to support that serious and grave allegation is the evidence of what has occurred in respect of the case management of the proceeding to date. The suggestion appeared to be that I had so conducted myself in relation to the management of Mr Dunstan’s case that it disclosed that I had a predisposition against him or had a closed mind in respect of his case.

80    The evidence concerning the case management of this proceeding to date provides no basis whatsoever for Mr Dunstan’s allegation of actual bias. That is so for a number of reasons.

81    First, Mr Dunstan’s affidavits and written submissions substantially mischaracterise and misrepresent what has occurred in the case management of the proceeding to date.

82    As for the subpoena, it is true that I refused Mr Dunstan’s application for leave to issue a subpoena in chambers and did so without providing reasons. As explained earlier in these reasons, however, that was in accordance with the Court’s practice and procedure in respect of such applications. It is incorrect to assert that I refused that application in a manner which was designed to conceal that I was the decision-maker and designed to conceal the reasons for refusal. Mr Dunstan was advised by the Court’s registry that it was open to Mr Dunstan to address the decision to refuse leave to issue the subpoena at the next case management hearing before me.

83    It is equally incorrect to assert that the respondents failed to comply with the Central Practice Note in any material way and that I was obliged to “admonish” them for doing so. It is somewhat unclear how the respondents are said to have failed to comply with the Central Practice Note. If the alleged failure is said to be that the respondents failed to disclose the documents that were the subject of Mr Dunstan’s proposed subpoena, it is by no means apparent that the respondents were necessarily obliged by the Central Practice Note to voluntarily disclose those documents. There remains a material issue in respect of the production of the documents sought by Mr Dunstan. That issue is to be considered at the hearing of the interlocutory applications in September 2022.

84    The fact that I have not at this point in the proceeding ordered the respondents to file a defence cannot accurately be characterised as unfairly excusing the respondents from complying with the Rules. As has already been explained, and as was clearly explained to Mr Dunstan at the case management hearings, it would be unusual and unreasonable to require the respondents to file a defence in circumstances where they have sought summary judgment or the striking-out of the statement of claim. If the respondents’ application for summary judgment or the striking-out of the pleading is unsuccessful, they will almost certainly be ordered to file a defence in due course.

85    The same can be said in respect of Mr Dunstan’s complaint that I did not accede to his request that default judgment be entered against the respondents. It was far from unreasonable or unfair not to accede to Mr Dunstan’s email request for default judgment having regard to what had transpired at the case management hearings and the orders that had been made. Mr Dunstan’s interlocutory application that default or summary judgment be entered for him is listed for hearing on 20 September 2022.

86    There was also nothing unfair or unreasonable about the manner in which the recusal application was listed for hearing on 2 August 2022, and nothing unfair or unreasonable about the refusal of Mr Dunstan’s application that the hearing on 2 August 2022 be vacated.

87    Finally, Mr Dunstan’s bald assertion that there has been any form of “judicial deception” in relation to any of the decisions that have been made, or the conduct of the case management hearings generally, is both incoherent and baseless. Likewise, Mr Dunstan’s claims that I have treated him with contempt, wilfully ignored what he has said, and favoured the respondents by “bending to their wishes” have no foundation. It may be the case that Mr Dunstan has not got everything that he has wanted or demanded in relation to the conduct of the proceeding to date, but any fair reading of the transcripts of the case management hearings and the correspondence between the Court and the parties reveals that Mr Dunstan has been dealt with fairly and courteously.

88    Second, Mr Dunstan’s complaints concerning the conduct of the matter relate to interlocutory decisions of a discretionary nature in respect of matters of practice and procedure. Mr Dunstan has failed to articulate any sound basis upon which it could be said that any of the discretionary decisions involved an error of principle of the sort addressed in House v The King (1936) 55 CLR 499; [1936] HCA 40. While reasonable minds could perhaps differ as to the approach that has been taken to the case management of the proceeding to date, it could not be said that any of the decisions were legally erroneous or unreasonable in the circumstances. It perhaps should also be noted in this context that if Mr Dunstan considered that any of the case management decisions that have been made were wrong, it would be open to him to seek leave to appeal those decisions. He has not done so.

89    Third, even if Mr Dunstan had been able to demonstrate that any of the case management decisions that have been made were wrong, that would still fall a long way short of demonstrating actual bias. Even if the case management decisions could somehow be said to be wrong, that would not even come close to demonstrating that I had prejudged Mr Dunstan’s case and am not open to persuasion. None of the case management decisions finally determine the rights of the parties and none of them relate to or concern in any way the merits of Mr Dunstan’s substantive case. Moreover, the evidence clearly reveals that at each of the case management hearings I have given Mr Dunstan every opportunity to make submissions, that I engaged with Mr Dunstan’s submissions, and that I explained the course that I proposed to take. It could not seriously be suggested that I have at any point displayed any partisanship or hostility towards Mr Dunstan or his cause.

90    Fourth, at the end of the day, Mr Dunstan’s complaints appear to rise no higher than that he has not been able to obtain everything that he has wanted or demanded in respect of the case management of the proceeding to date. That could hardly be said to be sufficient to establish the serious allegation of actual bias.

91    In all the circumstances, none of the aspects of my case management of the proceeding that Mr Dunstan has identified are capable, either individually or collectively, of establishing actual bias on my part. Nothing that I have said or done in the course of the proceeding to date provides any basis whatsoever for Mr Dunstan’s claim that I have prejudged his case or have any predisposition against him.

Apprehended bias not established

92    I should first address whether any of the aspects of my case management that formed part of Mr Dunstan’s allegation of actual bias are capable of demonstrating apprehended bias. The question is whether any of the decisions that I have made in the course of the case management of the proceeding to date, or indeed any aspect of the case management of the proceeding to date, are such that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of any question which might arise in the proceeding.

93    The short answer to that question is that nothing that has occurred in the case management or conduct of the proceeding could be said to be capable of possibly causing a fair-minded lay observer to reasonably apprehend that I might not bring an impartial mind to the resolution of any question that might arise in this proceeding.

94    As has already been observed, while some of the rulings and orders that I have made in the case management of the proceeding thus far might be said to be adverse to Mr Dunstan, they could all be characterised as fairly routine and unexceptional interlocutory rulings and orders of a discretionary nature concerning matters of practice and procedure. Mr Dunstan has not demonstrated that any of those rulings were erroneous, let alone unreasonable or unfair to him. None of the rulings touch on the merits or otherwise of Mr Dunstan’s substantive case. A fair reading of the transcripts of the case management hearings reveals that I have given Mr Dunstan every opportunity to make submissions in relation to the issues that have arisen during the course of the case management of the proceeding and that I have not acted with any partisanship or hostility towards him. Nothing that I have said or done could fairly be said to be capable of causing a fair-minded person who had a fair appreciation of the nature of the proceeding to reasonably apprehend that I might have prejudged the case in any respect, or that, whatever might happen, I would decide the issues that may arise in the case adversely to Mr Dunstan.

95    As the authorities discussed earlier make clear, where the alleged apprehension of bias is said to arise from case management or interlocutory decisions, there must be strong grounds for inferring the existence of a reasonable suspicion and a reasonable apprehension of bias must be firmly established. Mr Dunstan has neither identified strong grounds for that inference, nor firmly established any reasonable apprehension of bias arising from the case management of the proceeding to date. The mere fact that I have not always done what Mr Dunstan has advocated, or that I have not always accepted his submissions, or that the orders I have made may not be to Mr Dunstan’s liking, is plainly not enough to establish a reasonable apprehension of bias.

96    It remains to consider the three other grounds which Mr Dunstan says give rise to an apprehension of bias.

97    The first of those grounds is Mr Dunstan’s bare assertion that he is a person of public notoriety such that there is “only a remote possibility that any member of the judiciary can bring an unbiased mind to any proceeding in which [he] is a party”. That contention may be dealt with shortly. It is somewhat doubtful that Mr Dunstan has the public notoriety that he appears to assume or believe that he has. But even if he does have any degree of public notoriety, that is plainly no basis for disqualifying any judge from determining any case in which Mr Dunstan is involved. Judges regularly deal with cases involving people of far greater public notoriety than Mr Dunstan, including people who have been convicted of far more heinous crimes, or been involved in far more disreputable conduct, than Mr Dunstan may have been. The hypothetical fair-minded lay observer would understand and appreciate that the justice system operates on the premise that judges, by virtue of their training, experience and disposition, are able to deal with such persons objectively and without fear or favour.

98    The second ground is Mr Dunstan’s assertion that I have “expressed an attitude of bravado towards legal victories over self-represented litigants”. That assertion is based on a single line in the speech I gave at my swearing-in as a judge of this Court. The hypothetical fair-minded lay observer, however, would be likely to consider that line of the speech in context and having regard to the entire tone and nature of the speech. Having done so, the fair-minded lay observer would almost certainly not see or interpret that line of the speech as Mr Dunstan apparently has. Rather, they would see that part of the speech as amounting to little more than a light-hearted and self-deprecating reflection concerning my former chambers and (improbable as this may seem for a floor of barristers) the general absence of any arrogance, hubris or pomposity amongst its members. In short, it was a joke, or at least an attempt at humour. In referring to victories against self-represented litigants in the Wallsend Local Court, I was poking fun at one of the floor members who I refer to fondly later in the speech. I never appeared in the Wallsend Local Court.

99    It follows that there is simply no basis for Mr Dunstan’s assertion that I have expressed an attitude of bravado towards legal victories over self-represented litigants. Nor is there any basis for the apparent assertion that a fair-minded lay observer might apprehend from anything that I said in my swearing-in speech, or anything else that I have said or done, that I might not bring an impartial mind to the resolution of any case involving a self-represented litigant.

100    The third and final ground, which Mr Dunstan also appears to have extracted from my swearing-in speech, concerns my past professional association with Mr Temby. Mr Dunstan appears to assert that a fair-minded lay observer might apprehend that I might not bring an impartial mind to the resolution of this proceeding because I had a prior professional association with Mr Temby. It may be accepted, for present purposes, that Mr Temby is married to Ms Temby and that many years ago Ms Temby reported her suspicions concerning Mr Dunstan to the Australian Federal Police in the context of their investigation into offences of which Mr Dunstan was subsequently convicted.

101    With the greatest respect to Mr Dunstan, it is fanciful to suggest that my past professional association with Mr Temby might give rise to an apprehension that I might not bring an impartial mind to the resolution of this proceeding. Mr Temby has nothing whatsoever to do with this proceeding. Nor does Ms Temby. The fact that, almost 25 years ago, Ms Temby spoke to the police about Mr Dunstan, or had a view about Mr Dunstan’s character or disposition, is in all the circumstances entirely irrelevant and could not possibly give rise to any apprehension that I might not bring an impartial mind to the resolution of this proceeding. I might add that there is no evidence to suggest that I have any ongoing professional relationship with Mr Temby, or that I have any relationship with Ms Temby, or that I have ever spoken to either of them about Mr Dunstan, or that, prior to him raising it, I knew anything about the highly tenuous connections upon which Mr Dunstan apparently relies in asserting apprehended bias on this ground.

102    In his reply submissions, Mr Dunstan sought to liken the circumstances of this case to those that were considered in Eastman v The Queen (2015) 295 FLR 426; [2015] ACTCA 24. The circumstances in Eastman were, however, entirely different. In Eastman, the judge in question had a past professional relationship with a person who was likely to be a critical witness in the case that the judge was to hear. In contrast, Mr Temby and Ms Temby have nothing whatsoever to do with this case. Mr Dunstan’s bare assertion that Ms Temby and the Commissioner of Taxation “share a common concern of what may emerge of their roles in all proceedings in which [Mr Dunstan] is a party” is, to the extent that it is able to be comprehended, entirely without foundation.

103    None of the facts, circumstances, or assertions upon which Mr Dunstan relies in support of his claims of actual or apprehended bias, whether considered individually or cumulatively, are capable of supporting his contention that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of any question which might arise in the proceeding.

CONCLUSION AND DISPOSITION

104    There is no basis whatsoever for Mr Dunstan’s contention that I am actually biased. Nor is there any basis for his contention of apprehended bias. It follows that Mr Dunstan’s application that I recuse myself on those grounds must be dismissed.

105    Mr Dunstan should also be ordered to pay the respondents’ costs in respect of the recusal application, including their costs of and associated with preparing for and appearing at the hearing on 2 August 2022. Mr Dunstan opposed the making of a costs order in respect of the hearing on 2 August 2022. He submitted that the respondents were not entitled to their costs because they served their list of authorities on the eve of the hearing. He also argued that he should not be ordered to pay costs because the recusal application was fixed for hearing on 2 August 2022 against his wishes and because he was ill on 2 August 2022.

106    None of those matters militate against making a costs order in the respondents’ favour. The fact that the respondents served a list of authorities on the eve of the hearing was ultimately of no significance given that Mr Dunstan did not appear on 2 August 2022 in any event. Mr Dunstan was given the opportunity to reply in writing to the respondents’ submissions and authorities. The circumstances in which the recusal application was listed for hearing on 2 August 2022 were discussed at length earlier. The listing of the application for hearing on that day was not unreasonable or unfair to Mr Dunstan in all the circumstances. As for Mr Dunstan’s claims that he was ill on 2 August 2022, the paucity of the evidence relied on by him in that regard was discussed earlier. It might also be added that, despite being given the opportunity to file further evidence after the refusal of his adjournment application, Mr Dunstan did not take the opportunity to provide a medical report or certificate, or any further documentary evidence, concerning his state of health on 2 August 2022. In his affidavit dated 8 August 2022, Mr Dunstan simply asserts that he tested positive to COVID-19. In any event, Mr Dunstan’s application, which was determined on the papers, was unsuccessful and the fact that he may have been ill on 2 August 2022 provides no reason for not awarding costs against him.

107    The respondents applied for an order that their costs thrown away as a result of Mr Dunstan’s application to adjourn the hearing of his recusal application on 2 August 2022 be assessed on an indemnity basis. It may be accepted that Mr Dunstan acted unreasonably in failing to give the respondents any advance notice of his adjournment application. It may also be accepted that the evidence upon which Mr Dunstan relied in support of the application was deficient, as were the instructions he provided to his barrister. I am nonetheless not satisfied that an order for indemnity costs is warranted in all the circumstances.

Associate:

Dated:    29 August 2022

SCHEDULE OF PARTIES