Federal Court of Australia

Reihana v Minister for Government Services [2022] FCA 1017

ORDERS

THE COURT ORDERS THAT:

1.    The application for adjournment made by Toni Colin Reihana on 30 August 2022 in respect of QUD 122/2022 and QUD123/2022, be refused.

2.    The interlocutory application for recusal made by Toni Colin Reihana in respect of QUD122/2022 and QUD123/2022, filed on 29 August 2022 in QUD 123/2022, be dismissed.

3.    Toni Colin Reihana pay the costs of the respondents in QUD 122/2022, and the costs of the respondents in QUD 123/2022, of and incidental to the applications referenced in Orders 1 and 2 of these Orders, such costs to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER J

1    Before the Court is an interlocutory application filed on 29 August 2022 (recusal application) by Mr Toni Reihana (applicant) in QUD123/2022. In that interlocutory application Mr Reihana also seeks relief in respect of another matter in which he is the applicant, namely QUD122/2022. For this reason both matters were listed together today.

2    Mr Reihana seeks the following interlocutory orders:

1.    Although it is not necessary for a formal motion to be made ( Bainton v Rajski), irrespective, and on the premise of "whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide" (Michael Wilson and Partners v Nicholls), the applicant Reihana seeks the following interlocutory orders:

a.)    That Justice Colier be disqualified from presiding any further upon this Originating Application for Judicial Review QUD 123 / 22, and upon the 8th July 2022 interlocutory injunction application made under the review QUD 123 / 22's coverage, and accordingly, disqualification from presiding over the "sister" review QUD 122 / 22 concerning Minister of Government Services Linda Reynolds;

b.)    That the hearing of the respondents interlocutory applications in matters QUD 123 / 22 and QUD122 / 22 set down for 14th September 2022 be adjourned off pending suitable Federal Court judge replacement, and the finalisation of matters currently before the High Court that have arisen since Collier J's dubious mishandling of the above interlocutory application in the review QUD 123 / 22, as traversed in the accompanying affidavit in support.

3    When the applicant filed this interlocutory application on 29 August 2022 I ordered that he file and serve submissions and any material in support thereof, by 9.00am on 31 August 2022. The interlocutory application was listed for hearing urgently at 2.15pm on 31 August 2022 in light of the applicant’s contention that the recusal application was required to be dealt with prior to 5 September 2022. That contention was set out in the supporting affidavit of the applicant similarly filed on 29 August 2022 at [12].

4    In correspondence dated 30 August 2022 the applicant sought the adjournment of the recusal application (adjournment application) on the basis that he could not provide submissions and material in support until such a time as:

…sworn affidavit evidence is given by Brisbane registry staff to prove fault over the diabolical misdealings, procedural unfairness, and Wilful Blindness elements that the applicant Reihana has endured with his interlocutory injunction application filed in Brisbane on 8th July 2022, that the High Court are now scrutinising. An adjournment until these affidavit evidences are procured and available is the only justiciable course and an adjournment therefore is sought

This latest 29th August 2022 filed interlocutory application (disqualification) cannot just be hurried through without finding out, by sworn affidavits from all concerned; who did or did not do certain things connected with Reihana's 8th July interlocutory injunction application, because the words of the Court on 27th July 2022 at the joint case management/ supposed interlocutory injunction appln hearing that ring loud and clear were "I don't have that application before me " . So the burning question is WHY, HOW and , are you sure !?

5    The applicant then went on to outline six detailed questions that he sought affidavit evidence from the Registry to answer. He then concluded his adjournment application as follows:

That is what the applicant Reihana requires to be able to make direct and meaningful submissions, and nothing less will suffice, because the applicant wants all the cards on the table, and through procedural fairness (that's been lacking to date), Reihana is fully entitled to receiving those affidavit evidences that he relies on.

6    In an email attaching the adjournment application, the applicant stated:

ATTENTION: Justice Collier

Tena koutou katoa

Greetings all

Attached is a Memo requesting an adjournment of the 31st August 2022, 2:15 pm hearing of the latest disqualification interlocutory application UNTIL affidavit evidence from the registry staff is obtained

Briefly, I cannot give the “submissions with supporting material “as ordered UNTIL I have received those clarifying affidavit evidences

And the to assist the High Court with its deliberations over my Application for Leave to file my Application for Constitutional or Other Writ, that highest Court has been sent the Brisbane registry's documentations confirming this comparably astonishing quickfire interlocutory application hearing, compared to my very recently "fobbed off" interlocutory injunction application.

Put another way, it is a waste of time me coming to court tomorrow afternoon for the interlocutory appln hearing without the availability of the affidavit evidences sought in the list in the attached memorandum.

Nga mihi ki a koutou

Toni Reihana

7    I note that the adjournment application of Mr Reihana of 30 August 2022 was not filed. However I am prepared to treat this application as an informal application for adjournment.

background

8    Today when the matter was called there was no appearance by the applicant. I was informed by the Court Registry however that Mr Reihana had had numerous communications with the Court today by email. Relevantly to today’s hearing, those communications were as follows:

    Email to, inter alia, the Court Registry and the respondents from the applicant at 9.25am in which he stated:

Atamarie koutou

Morning all

Attached are my brief submissions for todays proposed hearing

And I am coming to the Court-house to file a further interlocutory application for interrogatories to be answered by registry staff and affidavit, as are wholly necessary for the fair and proper determination of my current interlocutory application to disqualify Collier J from presiding over my reviews QUD 123 / 22, and QUD 122 / 22.

The disqualification interlocutory application cannot be prosecuted without said interrogatories, and I have referred in my brief submissions to the relevant Rules where the Court must entertain my thrust to obtain interrogatories for the fair and proper determination of my disqualification application

Nga mihi

Toni Reihana

(emphasis added)

    However, at 1.26pm today the applicant emailed, inter alia, the Court Registry and the respondents as follows:

Attached for filing, and by way of service the new interlocutory application seeking interrogatories for use in the earlier "disqualification" interlocutory application.

I had to file this new interlocutory (interrogatories) application, and supporting affidavit listing the interrogatories I want honestly sworn / answered

I had to make this new interloc appln because my Memo sent yesterday seeking the same similarly listed interrogatories was not taken seriously, and in fact no official written direction was made about that Memo, rather Jake Ellis sent a fact distorted correspondence relying on some 5th September 2022 vaccine roll out for our toddlers, that has nothing to do with Collier J's disqualification

And we have returned to that same juncture where due process (the consideration of the new interrogatories interloc appln), and procedural fairness elements breached earlier are now in play

I wouldnt expect another dose of Willful Blindness to this very latest interloc appln and affidavit, which would be more fuel for the High Court "FIRE" !

One last time then, an adjournment of the disqualification interlocutory hearing today must be given upon the eistence of, and official filing of this very latest interloc (interrogatories) appln

I could not say anything further in-person

It is futile coming to court just to be "ambushed" again - twice shy I told the High Court !

9    Annexed to the applicant’s email of 9.25am today were his submissions, as follows:

Written Submissions and Material in Support of Interlocutory Application filed 29th Aug.

Realistically, I cannot prosecute this interlocutory application to disqualify Collier J from presiding over QUO 123 / 22, or QUO 122 / 22, without the evidences of registry staff to confirm various matters that Collier J most probably had some influence upon.

To participate in todays hearing without those evidences and verifications would be tantamount to flying blind, and making submissions upon assumptions and guesswork.

Pursuant to Rule 1.31 the Court must make orders that " have regard to the nature and complexity of the proceeding", and where Rule 1.34 provides the dispensing of compliance with the Rules, and via Rule 1.32 the Court may make any order it considers appropriate in the interests of justice - so the need for a further interlocutory application to be made to seek interrogatories will be drafted today, and an accompanying affidavit sworn. Adjourn !!

10    It is useful to provide a brief summary of the background to proceedings QUD 122 of 2022 and QUD 123 of 2022 (relevant proceedings) prior to addressing the adjournment application and recusal application.

11    The relevant proceedings were both filed by the applicant on 3 March 2022 and sought an extension of time “under rule 31.02 to lodge an application for an order for review under the ADJR Act 1977”. After being allocated to my docket on 4 May 2022, QUD 122 of 2022 was listed for a first case management hearing at 9.15am on 11 May 2022. It quickly became apparent that the applicant had not served the respondents with his originating applications in the relevant proceedings. The applicant also complained that he had not been given sufficient notice to attend a first case management hearing, and that QUD 123 of 2022 should be listed concurrently for a first case management hearing. Consequently, the first case management hearing listed on 11 May 2022 was vacated.

12    From May to July of this year I was travelling internationally on court business. As such, the relevant proceedings were listed for a first case management hearing at 9.15am on 27 July 2022.

13    On 11 July 2022, the applicant filed an interlocutory application in QUD 123 of 2022 in which he sought:

1.    This judicial review that is based upon the free importation of lvermectin, banning of General Practitioners freely prescribing lvermectin as a Covid 19 preventative and treatment, and based upon the non-approval by Therapeutic Goods Administration of lvermectin as a Covid 19 preventative and treatment, and until this judicial review is finalised by the Federal Courts, that interlocutory injunctions be emplaced to prevent the respondents from:

a.    Giving provisional approval of all Covid 19 vaccines to individuals 6 months up to 5 five years old;

b.    Granting any application for provisional registration for extending the use of all Covid 19 vaccines to individuals 6 months up to 5 years old.

14    The applicant contended that this application was urgent and that it should go before the Duty Judge. No cogent explanation was provided as to its alleged urgency, and the application was not listed before the Duty Judge. It was communicated to the applicant that this application would be dealt with at the first case management hearing listed on 27 July 2022.

15    At that case management hearing, the respondents indicated that they were likely to make strike out applications referable to relevant proceedings, and as a result I made Orders timetabling those applications to hearing or, in the event they were not filed, contingency Orders timetabling the relevant proceedings to hearing. Objections to the competency of the relevant proceedings were filed by the respondents on 15 August 2022. These objections to competency were, in accordance with Orders of 27 July 2022, listed for hearing on 14 September 2022.

FILING OF ADJOURNMENT AND RECUSAL APPLICATIONS

16    On 29 August 2022, and following lengthy correspondence with a number of staff in the Registry, the applicant filed his recusal application. In that correspondence and application the applicant suggests that there had been a conspiracy on the part of the Registry, and as a result of my intervention, to delay the hearing of his interlocutory application filed on 8 July 2022.

17    I note that in my case management orders in each of the relevant proceedings made on 27 July 2022 I made the following identical order:

7.    No material other than that specified in these Orders be filed in this proceeding by any party prior to 14 September 2022.

18    Plainly, the adjournment application and the recusal application were not material specified in the case management Orders of 27 July 2022.

19    Nevertheless, given that issues of impartiality of the Judge go to the very heart of a proceeding, on 29 August 2022 I made orders facilitating the filing of submissions and material by the applicant in support of the recusal application, and listed it for hearing at 2.15pm today.

20    The interests of justice require that I also deal with the adjournment application expeditiously, notwithstanding the terms of Order 7.

21    This in no way however abrogates Order 7 of the case management orders of 27 July 2022 in general terms, including in respect of other material any party may seek to file.

adjournment application

22    As Burley J noted in Zetta Jet Proprietary Limited v The Ship “Dragon Pearl” [2018] FCA 878 at [38], citing AON Risk Services Australia Limited v Australian National University [2009] 239 CLR 175, 179:

37    As the High Court made clear in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (AON), the types of matters that should be considered in the context of an adjournment application include: (a) the explanation for the adjournment; (b) the detriment to other parties; (c) the detriment to the court and other litigants, and; (d) the choices made by the parties as to the claims to be made and how they are to be framed. That, of course, is not an exhaustive list.

38    In the current context it is also apposite to note that in the exercise of its discretion it is appropriate for the Court also to consider the position of other litigants and confidence in the judicial system generally: AON at [5] (French CJ) and [111] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). It is for the plaintiffs to persuade the Court, on sufficient material, that an adjournment is appropriate. As the plurality in AON said at [103], [106], [107], if an application that would result in an adjournment is sought and no, or no sufficient explanation is given then the application should be refused. French CJ said (at [4]) that where an application is made “late in the day”, without adequate explanation and necessitating the vacation of a trial date, the applicant bears a heavy burden to show that the exercise of the Court’s discretion should be in its favour.

(emphasis added)

23    In light of these considerations, I am not persuaded by the adjournment application for the following reasons.

24    First, the applicant cannot convincingly suggest he was surprised that the recusal application was listed for hearing on two days after it was filed, on 31 August 2022. The applicant’s own affidavit in support sought the urgent determination of the recusal application, at [12], by 5 September 2022. In his own words, this urgent resolution would require a degree “quickfire judicial action” on the part of the Court.

25    Second, the request for an adjournment until such a time as the applicant is able to obtain affidavit evidence from Registry staff, to support his contention that there has been a conspiracy against him, is wholly unpersuasive. Such evidence is, even if crucial to the applicant’s case as he asserts, entirely irrelevant to the relief sought in the recusal application. In that application he is seeking my recusal; a registry cannot recuse itself. To that extent, I am not satisfied that adjournment of the recusal application would assist the applicant in presenting his case.

26    Third, the refusal of the adjournment application is in accordance with the overarching purpose outlined in s 37M of the Federal Court Act 1976 (Cth), namely:

(1)    The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

(a) according to law; and

(b) as quickly, inexpensively and efficiently as possible.

27    The objections to competency filed by the respondents in the relevant proceedings are listed for hearing on 14 September 2022. It would be counter-productive, given the applicant’s assertion that the determination of the relevant proceedings and his various interlocutory applications in them are urgent, to delay the hearing in respect of the competency of the relevant proceedings. Such a delay would also be inefficient, and a waste of both the Court’s and the respondents’ time and resources.

28    Fourth, the questions that the applicant seeks answered by means of affidavit evidence of Registry staff seem to be, at the highest, a fishing expedition to obtain some proof of the frankly bold and unsupported claim there has been a conspiracy against him. As Rares J observed in Wingecarribee Shire Council v Lehman Brothers Australia Ltd (No 4) [2010] FCA 1128 to this point, albeit in the context of the forensic purpose of subpoenas, that:

…whether the Court is satisfied that it is “on the cards” (to use the expression of Gibbs J in Alister v The Queen (1984) 154 CLR 404 at 414) that the documents would materially assist the subpoenaing party in relation to the proceedings…

29    As Katzmann J noted in Munday v Commonwealth of Australia [2014] FCA 618 at [30] the reference to a ‘fishing expedition’ refers to:

…what was said by Jordan CJ in Commissioner for Railways v Small [1938] NSWStRp 29; (1938) 38 SR (NSW) 564 at 575:

[A] party is no more entitled to use a subpoena ... than he is a summons for interrogatories for the purpose of “fishing,” i.e., endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all ...

30    Even a cursory glance at the questions the applicant seeks answered by the Registry demonstrates that he hopes to discover that he has a case; they are not in support of a prima facie cause of action.

31    Resolution of the applicant’s claim for my recusal as a matter of urgency is in the interests of justice.

32    The adjournment application is refused.

recusal application

33    Turning now to the applicant’s recusal application, insofar as I understand it, it appears that he alleges apprehended bias on my part. I understand this to be the case from his reference to “reasonable man” at [5] of his affidavit filed on 29 August 2022, and his concern at [2] that I “cannot be relied on to bring an impartial mind to the review QUD 123/22 or its ‘sister’ review QUD 122/22”.

34    The concept of apprehended bias was explained by the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337. There Gleeson CJ and McHugh, Gummow and Hayne JJ observed:

6.    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.

7.    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.

8.    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)

35    For more recent affirmation of these principles see Charisteas v Charisteas [2021] HCA 29, Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2, and Kumar v Secretary, Department of Social Services [2022] FCAFC 95.

36    In the context of prior adverse findings in a proceeding forming the basis for recusal, specifically in the context of and application for special costs, Bromwich J noted in Young v Hughes Trueman Pty Ltd (No 5) [2017] FCA 690, at [14], that:

Merely reaching an adverse view of the merits of a case, even if firmly expressed, does not necessarily, or even ordinarily, preclude a judge determining the next stage of the same proceedings. Damages hearings routinely follow determination of liability; in the criminal jurisdiction sentences follow determinations of guilt (including in cases by way of trial by judge alone). In any court where costs may be awarded, including in particular indemnity costs, the way in which a case was run will fall to be assessed against the backdrop of an unfavourable prior decision which may go to the heart of the decision to be made. It simply cannot be the case that in such situations a new judicial officer is required as a matter of course for that last stage. The focus must be on a proper basis for recusal.

(emphasis added)

37    In his affidavit in support of the interlocutory application, the applicant stated as follows:

I, Toni Colin Reihana of 16 Turner Crescent, Ormeau Hills, Gold Coast, Queensland, Disability Pensioner, say on oath as follows:

1.    My grounds for seeking leave to file my Application for Constitutional or Other Writ are based upon the Federal Court's and Federal Court registry's provable miscarriage of justice antics of breaches of the Doctrine of Willful Blindness, procedural unfairness, failure to take account of relevant considerations, and failure to follow due process, in their combined dubious mishandling of my Interlocutory Injunction Application filed in the Brisbane registry on Friday 8th July 2022, and returned sealed for service on Monday 11th July, with a fixed date for the hearing of that interlocutory application set down for 9: 15 am on 27th July 2022, at the same time that the first case management hearing was set down for;

2.    The blow by blow account of what happened between myself and the Brisbane registry, and the Brisbane Court concerning this "fobbed off" interlocutory application hearing, together with a brief over-view of the underlying Originating Application for Judicial Review QUD 123 / 22, can be found in the High Court "Affidavit l" that I attempted to file with my above Application for Writ (of mandamus) and that affidavit is annexed hereto this affidavit as "TCR HC LV 1"

38    Unfortunately exhibit “TCR HC LV 1” to which the applicant refers in his affidavit of 29 August 2022, and which he states contained a “blow by blow account of what happened between myself and the Brisbane registry, and the Brisbane Court concerning this "fobbed off" interlocutory application hearing, together with a brief over-view of the underlying Originating Application for Judicial Review QUD 123/22”, was not annexed to his affidavit. It follows that I am required to have regard to the limited material before me, including Mr Reihana’s brief submissions filed earlier today, his affidavit filed on 29 August 2022, and the transcript of the case management hearing of 27 July 2022.

39    In that light, and turning to the two limbs identified in Ebner relevant to consideration of a claim of apprehended bias, I note as follows.

First limb

40    In relation to identifying that which the applicant alleges might lead me to decide his substantive originating application other than on its legal and factual merits, the basis of the applicant’s allegations in this case is unclear. From his affidavit, the only source of the applicant’s concern appears to be his contention that I had engaged in “dubious mishandling” of his 8 July 2022 interlocutory application during the case management hearing of 27 July 2022.

41    It is useful at this point to summarise the procedural history leading to the case management hearing of 27 July 2022.

42    As I have already noted, the applicant has two matters in the Federal Court.

43    In his substantive originating application filed in QUD 123/2022 on 4 March 2022, the applicant sought the following relief:

The applicant applies for an extension of time under rule 31.02 to lodge an application for an order for review under ADJR Act 1977.

44    In support of this originating application the applicant filed an affidavit on the same date in which, inter alia, he referred to an application for review against the respondents in connection with the banning of the anti-viral medication Invermectin and the consequences that the decision to ban had on him, and his explanation that he had inadvertently filed an application in the Supreme Court of Queensland rather than the Federal Court.

45    The substantive originating application was allocated to my docket. I listed the matter for first case management on 27 July 2022.

46    Subsequently on 8 July 2022 the applicant filed in QUD 123/2022 an interlocutory application seeking the following relief:

This judicial review that is based upon the free importation of lvermectin, banning of General Practitioners freely prescribing lvermectin as a Covid 19 preventative and treatment, and based upon the non-approval by Therapeutic Goods Administration of lvermectin as a Covid 19 preventative and treatment, and until this judicial review is finalised by the Federal Courts, that interlocutory injunctions be emplaced to prevent the respondents from:

a.) Giving provisional approval of all Covid 19 vaccines to individuals 6 months up to 5 five years old;

b.) Granting any application for provisional registration for extending the use of all Covid 19 vaccines to individuals 6 months up to 5 years old.

47    The return date for the interlocutory application was similarly 27 July 2022.

48    In support of this interlocutory application the applicant filed three affidavits. The first affidavit filed on 8 July 2022 anticipated subsequent affidavit material being filed. In the second affidavit, filed on 11 July 2022, the applicant annexed a list of documents he claimed relevant to his interlocutory application, namely:

    Annexure TCR B3 Poison Standard Amendment (Ivermectin)

    Annexure TCR B4 27th August 2021 TGA website – recent events record over September 2021

    Annexure TCR B5 23rd August 2021 TGA website extract.

49    In his third affidavit, also filed on 11 July 2022, the applicant deposed (inter alia):

If it is not abundantly obvious, where all of my Affidavit 4 evidence here amasses such irrefutable basis why the interlocutory injunction I seek ought to be granted, the end game is that the lvermectin ban I am trying to invalidate through my underlying judicial review, will ultimately result in our toddlers not having to be a part of the treasonous medical experiment that Covid vaccines are, when the antiviral Nobel Prize winning Ivermectin will work perfectly well - no side affects !. [sic]

50    Annexed to this affidavit were the following documents:

    TCR B16 Food Drug Administration court proceedings

    TCR B17 March to May 2022 FDA/Pfizer documents released

    TCR B18 Vaccine adverse affects on women 2nd Dec. 2021

    TCR B19 COVID Vaccine exemption form (IM 101)

    TCR B20 Baby still births in Scotland - 1st Dec. 2021 report

    TCR B21 COVID Vaccine Aids - various recent Reports

    TCR B22 COVID Vaccines cause sterilisation - reports

    TCR B23 Food Drug Admin - treachery/ treason

    TCR B24 COVID Vaccine ineffective on 5 to 11 year olds – report

    TCR B25 lvermectin proven in US military

    TCR B26 Different batches of Covid vaccines proven

    TCR B27 TGA covid vaccine approval of 12-17 years

51    On 3 March 2022 in QUD 122 of 2022 the applicant filed an application for extension of time, seeking the following relief:

The applicant applies for an extension of time under rule 31.02 to lodge an application for an order for review under ADJR Act 1977.

52    On the same date in support of that application the applicant filed an affidavit in which he deposed that his application was in connection with the termination of his employment for failing to obtain a Covid 19 vaccination in order to keep his employment, and that the delay in filing was because he had inadvertently filed an application for judicial review in the Supreme Court of Queensland.

53    QUD 122 of 2022 was similarly listed for case management on 27 July 2022.

54    Prior to the case management hearing the respondents in both QUD 122 of 2022 and QUD 123 of 2022 submitted draft case management orders for consideration by the Court, in which they noted that they proposed filing notices of objection to the competency of all of Mr Reihana’s applications in both matters, or alternatively seeking summary judgment in respect of all matters.

55    At the case management hearing after appearances were made I said as follows:

HER HONOUR: Good morning, Mr Reihana. All right. I want to thank the parties for providing some draft case management orders in all of these matters. It seems to me that, having looked at the draft case management orders that have been provided, and noting that in both QUD 122 and 123 that the respondents are seeking, or 20 contemplating at any rate, filing a notice of objection to competency and/or notice of summary judgment, that it might be appropriate to proceed on that basis. Now, Mr Reihana, I note that in QUD 123 you’ve filed not only an extension of time application, but also an interlocutory application.

MR REIHANA: Yes.

HER HONOUR: Right. But it’s my understanding that the objection to competency in QUD 123 – and I see you’re on your feet; thank you, Mr McMillan. The objection to competency and/or summary judgment, which the respondents in QUD 123 are seeking would apply to both of the interlocutory application and the application for extension of time.

MR McMILLAN: That’s so, your Honour.

HER HONOUR: Right. So, Mr Reihana, it does seem to me to be reasonable to at least allow the respondents to come forward and claim, or at least substantiate any claim they may wish to make that your applications are not competent, or that they should get summary judgment. Do you understand what I’m saying? They say you – that, well, at least, I understand they’re thinking of saying – they haven’t done it 40 yet.

MR REIHANA: Yes.

HER HONOUR: They are anticipating at this stage filing an objection to the competency of your applications. That means that they should – your applications should be struck out and/or that they should get summary judgment in both cases.

MR REIHANA: Yes, I am aware of their position.

HER HONOUR: Yes.

MR REIHANA: And my response to their position is that, effectively, it’s too little too late. I’ve already launched the injunction application, which is dependent upon 10 establishing prima facie that I have a strong review case in the matter QUD 123, the Ivermectin banning case, so - - -

HER HONOUR: Well, hang on, sorry, just stop. I don’t actually understand what you’re saying, but what I do want know is this. They are at this stage planning to say 15 – they haven’t done it yet.

MR REIHANA: Yes.

HER HONOUR: But my understanding is they would like the court to allow them 20 to file applications to say that your matters should just be dismissed, all of them. You understand that?

MR REIHANA: Based on the - - -

HER HONOUR: That’s what they’re saying.

MR REIHANA: Based on the competency thing, is it?

HER HONOUR: Well, you’ve seen the draft orders they’ve provided.

MR REIHANA: Yes.

HER HONOUR: Right. Draft order number 1 is they have leave to file an objection to competency. Draft order 2 is that they have leave to file and serve any application 35 for summary judgment. That also means that they get judgment and your matters are thrown out. You understand that?

MR REIHANA: Yes.

40

HER HONOUR: Without further ado, all of them. That’s what they’re saying. So I think they should be required – if that’s what they want to say, they should be required to substantiate that case.

MR REIHANA: Yes.

HER HONOUR: If they lose, costs – well, there may be an issue of costs, although you’re not represented and legal costs tend to be awarded when people are represented, as distinct from representing themselves. But, nonetheless, if they lose, well, we can talk about. If they win, then your matters are gone.

MR REIHANA: Yes, I think what I was alluding to is that myself and my part in the proceedings has advanced to a stage where chambers have decided not to give me an urgent hearing of my interlocutory injunction application.

HER HONOUR: I’m sorry, what are you talking about “chambers has decided”? 10 What are you talking about?

MR REIHANA: I’ve - - -

HER HONOUR: You have filed an interlocutory application.

MR REIHANA: Yes.

HER HONOUR: I understand that.

MR REIHANA: Yes.

HER HONOUR: The respondents are saying that that’s not – at least I – they haven’t done it yet, as I keep saying. But my understanding is that they are proposing to say it was never competent and that that should just be dismissed anyway. That’s my understanding.

MR REIHANA: Well, I will let them speak then and then I will continue what I’m saying now.

HER HONOUR: Well, hang on, wait a minute. So but I understand you are now saying that you want an urgent hearing and that time has passed. So are you still pressing your interlocutory application in QUD 123 or not?

MR REIHANA: I’ve had numerous - - -

HER HONOUR: Are you pressing it or not?

MR REIHANA: Sorry?

HER HONOUR: Are you pressing it or not?

MR REIHANA: What do you mean, sorry?

HER HONOUR: Do you still want the court to hear your interlocutory application? 45

MR REIHANA: Yes

HER HONOUR: Right.

MR REIHANA: Tomorrow, if necessary. I mean, it is urgent.

HER HONOUR: Well, is it?

MR REIHANA: Well, one of the aspects that I sought to stay or injunct has – in the 19 days that it sat in the registry, this injunction application, and within those 19 days it has partly gone against me. The delay by the registry in advancing me to an urgent interlocutory injunction application, in the meantime within those 19 days, the respondents have done what I was trying to stay or injunct them from doing, which was - - -

HER HONOUR: Well, doesn’t that sound – well, putting to either side – putting to one side for the moment the merit or otherwise of your statement, it sounds to me like there’s no point in you pressing that injunction because they’ve – you said they’ve already done what you didn’t want them to do. So what’s the point of you pressing that interlocutory application?

MR REIHANA: Well, I - - -

HER HONOUR: Wouldn’t you be seeking - - -

MR REIHANA: I believe - - -

HER HONOUR: Wouldn’t you – aren’t you now seeking – shouldn’t you be sort of chasing your relief?

MR REIHANA: No, because the same issue is still there.

HER HONOUR: All right. That’s fine then. Then you’re still pressing it. That’s all I need to know.

MR REIHANA: Yes.

HER HONOUR: Right. So but the respondents, I understand – and I will hear – perhaps, Mr McMillan can just confirm this for me. Mr McMillan, my understanding is in QUD 123 you are seeking leave to file a notice of objection to competency and application for summary judgment in relation to both applications filed by Mr Reihana; is that correct?

MR McMILLAN: Yes, your Honour.

HER HONOUR: Okay. That is the application filed on 3 March 2022, which is the application for an extension of time, and the interlocutory application filed on 8 July; is that correct?

MR McMILLAN: Yes, your Honour.

HER HONOUR: Right. Okay. Mr Reihana, it does seem to me to be reasonable to require the Commonwealth to put its money where its mouth is, if I can put it that way, and see if it can substantiate its claim that those matters should be dismissed. If they’re not, those matters are not dismissed, then we can proceed to hear your claims, your applications on the merits. That’s what I think is the appropriate way forward.

MR REIHANA: Very well.

HER HONOUR: Right. Ms Hoiberg, you have put forward similar orders.

MS HOIBERG: Yes, your Honour.

HER HONOUR: Okay. All right. So this is what I’m proposing to do. I’m proposing to have both matters heard together. I’m proposing to have any notice of objection to competency and/or application for summary judgment in both matters heard on 14 September 2022 at 10.15 am for – is half a day enough, or do you require a whole day?

56    The submissions of Mr Reihana at the case management hearing appeared in summary to be:

    He had filed substantive applications and an interlocutory application; and

    His interlocutory application required urgent hearing; and

    The interlocutory relief he had sought had in any event been overtaken by unspecified events (although this was never clarified).

57    Further, as I noted at the case management hearing, it appeared that, in circumstances where Mr Reihana sought interlocutory injunctive relief referable to restraining approval by the Therapeutic Goods Administration of medications for children aged 6 months to 5 years old, there was a serious issue of Mr Reihana’s standing to seek such relief, as well as the relevance of that interlocutory relief to the substantive relief sought in QUD 123/2022.

58    As matters stand, detailed timetabling orders have been made to take the objections to competency filed by both sets of respondents to hearing. The applicant is entitled pursuant to those timetabling orders to file his own material and submissions.

59    The applicant’s primary complaint appears to be that I did not actually hear and determine his interlocutory application on 27 July 2022. However no case management orders had been made to allow either party to file submissions or relevant material. The date was always intended to be a first case management hearing of both the substantive and interlocutory applications.

60    The applicant has not substantiated any ground to suggest that I might decide his substantive originating applications or his interlocutory application other than on their legal and factual merits. The first limb, as explained in Ebner, is not satisfied.

Second limb

61    Even if the basis of my alleged lack of impartiality in hearing Mr Reihana’s interlocutory application was that it had not been heard either prior to 27 July 2022, or on 27 July 2022, I am not persuaded that the applicant has articulated a logical connection between the matter and the feared deviation from the course of deciding the case on its merits.

62    To the extent that the applicant contends that either the Registry staff of the Court, or I, took no note of the alleged urgency of his interlocutory application filed on 8 July 2022 in QUD 123 of 2022, insofar as appears on the material before the Court no cogent explanation was provided by the applicant of the alleged urgency, other than his wish to have the interlocutory hearing expedited in some unspecified public interest. There is nothing to substantiate a finding that s 37M of the Federal Court of Australia Act 1976 (Cth) required an expedited hearing of Mr Reihana’s interlocutory application, either prior to 27 July 2022 or at the case management hearing of 27 July 2022.

63    Progressing litigation to trial requires case management orders which, to the extent possible, are fair to all parties. In circumstances where the respondents anticipated the filing of objections to the competency of Mr Reihana’s applications, and have subsequently filed those objections, it was in my view an efficient use of Court time, and more cost effective for the parties, for those objections to be addressed before the applicant’s applications were considered on their merits. As I explained to the applicant at the case management hearing, in the event that the objections to competency were unsuccessful his applications would be listed for hearing.

64    Finally, I note that, in his affidavit filed on 29 August 2022 in QUD 123/2022, Mr Reihana deposed as follows:

19.    As a reality check of sorts, I swear a final word to the Justice who seals with this leave application, that if your own children, grandchildren, nieces, nephews, aunts, uncles, wider family, friends, colleagues, and associates are dropping dead from these covid vaccines, or suffering permanent debilitating adverse effects then you will be looking at this application with the right eyes.

65    To the extent that the applicant appears to believe that a Judge of this Court can only approach his applications with an unbiased eye in the circumstances he describes, namely where all family, friends, and broader acquaintances of the Judge have expired due to the effects of Covid 19 vaccines, it appears unlikely that any Judge would be able to satisfy Mr Reihana’s criteria of impartiality.

66    In conclusion, I note again the importance of case management as an accepted aspect of the system of civil justice administered by Courts in Australia, including this Court: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, [2009] HCA 27, s 37M Federal Court of Australia Act 1976 (Cth). Case management orders were made by me on 27 July 2022 to address the competency of the applications filed by Mr Reihana. Those objections to competency await determination, following filing of material and submissions. I am not satisfied that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the determination of those objections to the competency of the applicant’s claims, or, if the objections to competency prove unsuccessful, the merits of his claims.

67    It follows that the recusal application is dismissed.

CONCLUSION

68    In conclusion, I am not persuaded that I ought recuse myself from hearing and determining QUD 122/2022 or QUD 123/2022. It is also important that the issues of competency of the substantive applications in both relevant proceedings be resolved as soon as possible. Given my earlier findings as set out in this judgment, I will proceed to hear those objections to competency on 14 September 2022.

69    Both interlocutory applications are dismissed.

Associate:

Dated:    31 August 2022

SCHEDULE OF PARTIES

No: QUD 122 of 2022

Federal Court of Australia

District Registry: Queensland

Division: General

Second Respondent        GREG HUNT AS MINISTER OF HEALTH

SCHEDULE OF PARTIES

No: QUD 123 of 2022

Federal Court of Australia

District Registry: Queensland

Division: General

Second Respondent        BRENDAN MURPHY AS SECRETARY OF HEALTH