Federal Court of Australia

Greensill Bank AG v Insurance Australia Limited [2025] FCA 95

ORDERS

THE COURT ORDERS THAT:

1.    The disqualification application dated 31 January 2025 be allowed.

2.    The Proceedings be referred to the National Operations Registrar for reallocation to another Judge.

3.    There be no order as to costs.

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

REASONS FOR JUDGMENT

MOORE J:

1    Greensill Bank AG (in administration) (GBAG) and Dr Michael Frege (as Insolvency Administrator for GBAG) (together, the GBAG Parties) have brought an application for me to disqualify myself from the further case management of, and hearing of, the ten Greensill proceedings that are being case managed and heard together (the Proceedings). The application is made on the ground of apprehended bias. The GBAG Parties have provided detailed and helpful written submissions in support of their application. For the reasons set out below, I have decided that I ought to recuse myself from any further case management or hearing of this matter.

2    The present application arises in the following circumstances. On 11 November 2024, prior to being appointed to this Court, I appeared as senior counsel for Marsh Limited and Marsh Pty Limited (the Marsh entities), with Mr P Meagher and Ms N Gollan, in an interlocutory application in the Proceedings. In that application, the GBAG Parties sought a declaration that the Marsh entities had breached their Harman obligation to the Court (more accurately described in Australia as a Hearne v Street obligation) not to use discovered documents and information for purposes other than for which they were given (Harman Application). The decision on the Harman Application is Credit Suisse Virtuoso SICAV-SIF v Insurance Australia Limited (No 2) [2024] FCA 1308 (Harman Judgment). My involvement in the Proceedings was limited to the Harman Application. I was briefed on that application because both senior counsel briefed for the Marsh entities in the Proceedings were unavailable on the date set down for the hearing of the Harman Application. I was not briefed in the matter generally.

3    On 18 December 2024, I was appointed to this Court. On 20 January 2025, the Proceedings were allocated to my docket. At the time of the allocation, I had occasion to consider whether my involvement in the Harman Application itself prevented me from being allocated the Proceedings. I did not at that stage have the benefit of the subsequent submissions from the GBAG Parties highlighting particular passages in the written and oral submissions of the Marsh entities on the Harman Application. For the reasons set out below, that distinction is significant.

4    The circumstances surrounding the Harman Application are set out in some detail in the Harman Judgment and I will not recite them all here. The Marsh entities had brought an ex parte (or “without notice”, being the relevant term used in England) application for an anti-suit injunction against the GBAG Parties in the High Court of Justice of England and Wales (the English Court). The Marsh entities relied upon an exclusive jurisdiction clause (clause 13) in Marsh’s standard Terms of Engagement. The Terms of Engagement were incorporated in Letters of Engagement executed by GBAG in respect of the period 2018 - 2019, and executed by another company, Greensill Capital (UK) Limited (GCUK), in respect of other periods. GCUK is a sister company of GBAG, in the sense that they are both owned by a common immediate parent entity.

5    The Terms of Engagement also contained a limitation of liability clause (clause 7), purporting to cap the liability of Marsh Limited and its “affiliates” (defined in an apparently broad way in clause 11 to include related bodies corporate) to the amount specified in the relevant Letter of Engagement or Statement of Work or, in the absence of such specification, to fixed monetary limits which are very much less than the amounts claimed in the Proceedings.

6    A key issue that arises between the GBAG Parties and the Marsh entities (and will inevitably be an issue in the Proceedings) is whether the GBAG Parties are bound by the Terms of Engagement incorporated in the Letters of Engagement executed by GCUK, and therefore whether the GBAG Parties are bound by the exclusive jurisdiction clause and the limitation of liability clause. Documents relating to that issue that were produced on discovery in the Proceedings were subsequently used in the ex parte application to the English Court for an anti-suit injunction. The GBAG Parties alleged that the use of those documents was a breach of the Harman obligation, and brought the Harman Application in this regard. As was pointed out by the GBAG Parties in the disqualification application, the question of whether GBAG is bound by the actions of GCUK or imputed with the knowledge of GCUK is a broader issue in the Proceedings generally.

7    The defence of the Marsh entities to the Harman Application was twofold: Harman Judgment at [80]. The second contention, of little relevance to the present application, was that the use of the relevant documents was required by law because of the content of the disclosure obligations in the English Court on an ex parte application. The first contention, of relevance to the present application, was that the dispute between the GBAG Parties and either of the Marsh entities necessarily involved the question of the proper forum for that dispute, and also whether the dispute was subject to a limitation of liability, and therefore necessarily involved the question of whether the GBAG Parties were bound by the Letters of Engagement executed by GCUK and thus by the Marsh standard Terms of Engagement, such that the use of discovered documents for that purpose was not use for a purpose extraneous or alien to the Proceedings.

8    The Harman Application was an interlocutory application collateral to the main proceedings, in the sense that whether the Marsh entities breached their Harman obligation is not an issue for determination in the substantive hearing on liability in the proceedings and nor does it have any direct bearing on the substantive hearing. For the reasons discussed below, the fact that a Judge hearing a case has appeared at an earlier stage in an interlocutory dispute in the same proceedings would not of itself necessarily give rise to a reasonable apprehension of bias. Further, the mere identification in the course of an interlocutory dispute of the existence of issues that, uncontroversially, would have to be resolved in the substantive proceedings might not give rise to any reasonable apprehension of bias as to how those issues might ultimately be determined. The relevant contention of the Marsh entities in the Harman Application, identified above, did not itself depend on the Court being persuaded as to how the dispute between the parties should be resolved – just that the dispute in the Proceedings involved an issue as to whether the GBAG Parties were bound by the relevant provisions of the Marsh Terms of Engagement, being the very issue for which the documents were used in the English Court for the anti-suit injunction.

9    Thus on the face of the matter, my prior involvement would not necessarily, or automatically, have required disqualification. However, the GBAG Parties contend that the submissions advanced by me on behalf of the Marsh entities went further than merely identifying uncontroversial issues in the Proceedings and suggested how those issues might be approached and resolved. The GBAG Parties refer in their written submissions to passages from the written and oral submissions in the Harman Application. Having considered the written and oral submissions from the Harman Application in some detail, I agree that certain passages went further and were suggestive of a particular outcome on issues that will require resolution in the substantive proceedings, and which might also be influential in relation to interlocutory issues in the proceedings (including potentially forthcoming issues as to joinder). In those circumstances, a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of those issues and I am satisfied that I ought to recuse myself from further involvement in the proceedings.

Relevant legal principles

10    The relevant test for disqualification for apprehended bias is whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (Ebner) at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

11    There is no category of case, involving some interest or association on the part of a judge, in respect of which an apprehension of bias will be presumed without needing to undertake the relevant analysis in order to determine whether the criterion is satisfied: QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419 (QYFM) at [39] per Kiefel CJ and Gageler J, at [295] per Jagot J.

12    As was observed by the plurality in Ebner at [19], judges have a duty to exercise their judicial functions. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. If one party to a case objects to a particular judge sitting, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case. Likewise, in Re J.R.L.; ex parte C.J.L (1986) 161 CLR 342 at 352, Mason J observed that it is important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of apprehended bias, encourage parties to believe that by seeking disqualification they will have their case tried by someone thought more likely to decide the case in their favour. However, this is subject to the qualification expressed in Ebner at [20] that in “a case of real doubt”, it will often be prudent for a judge not to sit in order to avoid the inconvenience which might arise if an appellate court took a different view.

13    In QYFM at [38], Kiefel CJ and Gageler J observed that:

Application of the criterion was identified in Ebner, and has been reiterated, logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.

(Footnotes omitted.)

14    Their Honours subsequently, at [47] – [49], summarised characteristics of the fair-minded lay observer which I will not repeat here but which I take into account.

15    That reasonable minds may differ about the application of the third step identified in QYFM is illustrated by the contrasting conclusions reached in the various judgments in CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76.

Analysis of factors relied upon by the GBAG Parties

16    The GBAG Parties relied upon three “factors”, in the sense identified in the authorities.

First factor – disqualification by association

17    The first factor relied upon is what is described by the GBAG Parties as “disqualification by association”, being that I recently acted for the Marsh entities in an interlocutory application in the proceedings. In their written submissions, the GBAG Parties say that:

the fact his Honour acted for a party to these proceedings and appeared as Senior Counsel to make written and oral submissions for that party, against another party, in a hearing of an application in these proceedings just three months ago would easily satisfy the “double might” test – even if taken alone.

18    I do not accept that submission put at that level of generality, and in that unqualified way. As was observed by Jagot J in QYFM at [295]:

Ibester v Knox City Council does not, implicitly or otherwise, limit the potential scope of disqualification for reasonable apprehension of bias to cases in which the judge has had a role in prosecuting a party in the same, related, or consequential proceedings. But nor does every case in which a judge has previously appeared or acted against a person or their interests, even in a criminal context, necessarily give rise to a reasonable apprehension of bias. Such a conclusion would be contrary to Ebner and must be rejected. In some cases, by reference to subject-matter, time, and role, the perceived connection between the judge’s previous involvement and the case to be decided may be manifestly tenuous. Context is all.

19    Pausing there, the inclusion by her Honour of the words “even in a criminal context” may give rise to different considerations, having regard to the observations in the same decision of Kiefel CJ and Gageler J at [50] and [54] and Gordon J at [83] (but cf. Edelman J at [171], and noting that Steward and Gleeson JJ concluded that there was no reasonable apprehension of bias in that case). Putting to one side (and not considering further) cases where the judge was a prosecutor, it is clear enough that in other contexts a conclusion that there is a reasonable apprehension of bias requires consideration of the particular circumstances. It is common enough for counsel to appear in proceedings in relation to some procedural dispute unrelated to the issues for final determination. For example, counsel might be briefed to appear on an application to set aside a Notice to Produce, or on a security for costs application, where (in that particular case) no consideration is required to be given to the substantive issues between the parties in the proceedings. There might not be the necessary logical connection between that activity and the apprehended deviation from deciding the substantive issues on their merits. As Jagot J observes, “Context is all”.

20    Nothing in the remarks of Jagot J quoted above is inconsistent with Ebner or with Isbester v Knox City Council (2015) 255 CLR 135 (Isbester). Isbester was a case where the person acting in the role akin to a prosecutor was later a member of the panel deciding the issue in question. Observations by Gageler J at [63], relied upon by the GBAG Parties, to the effect that a person who is an “adversary” in the same of related proceedings may develop a frame of mind inconsistent with neutral decision-making, were made in a context where the person in question was an adversary on the issues for decision. That is also consistent with the plurality (Kiefel, Bell, Keane and Nettle JJ) analysing, at [40] – [46], whether the decision-maker still had an “interest” (as prosecutor) in the particular matter under decision.

21    If acting against a party alone was the touchstone, then it is difficult to see a principled basis for distinguishing between acting against a party in the same proceedings (but on some unrelated issue) and acting against the party in a different proceeding. But there is nothing in Isbester to support the conclusion that acting against a party of itself is determinative. Plainly enough, a judge who has acted against a particular party (e.g. a particular company or regulator) in some earlier case is not, for that reason alone and without more, disqualified from sitting in a subsequent case involving the same party. If that were not so, it would be impossible for a judge with relevant expertise to hear cases in an area that generally involves a common party (e.g. taxation law, migration law, or competition law).

22    In oral submissions, senior counsel for GBAG, Ms Whittaker SC, put the submission in a more nuanced way, and submitted that there was disqualification by association because I had acted for the Marsh entities in a weighty dispute involving allegations and conclusions of serious misconduct by the Marsh entities. That submission might perhaps have required closer consideration if the allegations had been of serious misconduct by the GBAG Parties. As it is, it is difficult to see how the seriousness of the application for the Marsh entities would have the requisite logical connection that would lead to a reasonable apprehension of bias.

23    The first factor relied upon by the GBAG Parties is therefore not a sufficient basis for disqualification. It could potentially be considered in combination with some other factor or factors in the overall assessment or overall context, but given that it is swamped by the second factor, there is no need to consider this further.

Second factor – disqualification by prior conduct

24    The second factor focuses on the content of the submissions, both written and oral, which I made on the application.

25    As identified by Ms Whittaker in oral submissions, there are two broad aspects of the disqualification submissions of the GBAG Parties. The first aspect is a contention that the submissions on behalf of the Marsh entities in the Harman Application identified provisions in Marsh’s standard Terms of Engagement and defences that would be advanced by Marsh which had not hitherto been identified because the Marsh entities had not filed any defence making those pleas. The second aspect is a contention that the relevant submissions went further than merely identifying issues, and consisted of submissions about how those issues should be viewed and resolved.

26    In relation to the first aspect, there is something of an air of unreality about the contentions. The Terms of Engagement consists of a short document of some four pages. The clauses are not particularly complicated. They include an exclusive jurisdiction clause and a limitation of liability clause. They purport to give the benefit of the provisions to “affiliates” of Marsh Limited, and purport to bind “affiliates” of GCUK, and “affiliates” are in each case defined broadly. The relevant Letters of Engagement refer to the provision of “Services”, which is stated to apply “in respect of Greensill [i.e. GCUK] policies and also parallel policies arranged / placed in respect of Greensill Bank AG”. It is obvious that Marsh will seek to rely on these provisions and that a key issue in the proceedings will be whether the GBAG Parties are bound by them. The mere identification of these matters as issues cannot sensibly suggest any prejudgment.

27    However, the GBAG Parties are on much firmer ground in relation to the second aspect, relating to whether the submissions of the Marsh entities on the Harman Application went further than merely identifying issues that would need to be determined, and made submissions which might be seen to suggest that I might not bring an independent mind to the resolution of those issues. It is that to which I now turn.

28    In order to illustrate why the exclusive jurisdiction clause, and thus the question of whether the Terms of Engagement attached to the Letters of Engagement executed by GCUK bound the GBAG Parties, was central to the existing dispute in the Proceedings, the submissions of the Marsh entities on the Harman Application took the Court through certain features of the Letters of Engagement and Terms of Engagement.

29    In oral submissions, after identifying that clause 11 provides that GCUK accepted the engagement on its own behalf and on behalf of each of its affiliates, I made the following submission:

Now, although we understand that GBAG is now asserting that GCUK lacked authority to bind GBAG in this way, that then raises a question: by what contractual arrangements were [the] Marsh entities providing services if they weren’t retained by these letters of engagement? On what basis does GBAG says that they [i.e. the Marsh entities] are liable to GBAG? We don’t need to address this question further now, other than to note that GBAG’s pleadings, when they ultimately came along, do not illuminate the answer to this question.

30    This might be thought to be a significant passage for the purposes of the present application. An observer might understand this submission as expressing scepticism about GBAG’s contention that GCUK lacked authority, on the basis that GBAG was disavowing the Letter of Engagement executed by GCUK but had not identified any other basis for the relationship of broker/client that was central to the claims by the GBAG Parties against the Marsh entities.

31    I subsequently described the contention that GCUK had bound GBAG as “the prima facie position”, expanding on that by saying:

Here’s a contractual document. That was the document retaining Marsh. No one has pointed to any other document retaining the services of Marsh. So Marsh says, “Well, when were we retained? We were retained by this letter of engagement setting out when we were retained, who retained us, on behalf of which entities and what services we were to provide.” That’s the source of all that… No other document [is suggested] that defines the services that Marsh was providing as broker.

32    I subsequently observed:

But on any view, GCUK has ostensible authority to enter into this agreement because the – when Marsh is being retained, I mean, from Marsh’s perspective… what is the dealing that we have with the Greensill group? Well, someone signs a letter requesting our services. So from Marsh’s perspective, GCUK has ostensible authority to act for the person who is retaining Marsh to provide these services. No other request for services has been identified. No other letter, document. Nothing coming from GBAG directly to Marsh saying, “By the way, can you provide us with a set of services” that has been put before the court. This is, from our perspective, the source of the instruction, and in those circumstances, we do say that fairness dictates that we be able to, either in Australia or anywhere else, be able to refer to documents that relate to whether, in fact, GCUK, as it appears to, had authority to bind GBAG.

33    Again, this goes further (and arguably significantly further) than a neutral identification of the issue of whether GCUK had bound GBAG, and appears to amount to a positive contention that GCUK had ostensible authority to bind GBAG and had purported to do so.

34    Later I said:

Now, Marsh’s engagement with GBAG – GBAG, of course, was a German bank seeking broking services from an English broker. Unsurprisingly, it had a choice of law [and] exclusive jurisdiction clause in it. Unsurprisingly, that was not Australia. And we’ve been through the provisions of the letter agreements.

35    By that submission, I was suggesting that it was natural that a retainer by a German bank of an English broker might have an exclusive jurisdiction clause that pointed away from Australia. A lay observer might conclude that this was not a neutral way of expressing the issue, but rather suggested that Marsh’s position was meritorious.

36    Submissions were also made that characterised GBAG’s conduct in connection with the Harman Application itself. In the written submissions, the following appeared:

GBAG is contending, in effect, that: it can discover documents relating to the contractual basis of any relationship between GBAG and Marsh; it can bring a claim against Marsh relying upon Marsh’s retention as broker; but it can then rely upon the Harman undertaking to prevent Marsh from using documents going to the contractual basis of that relationship in defending that claim (including by seeking to stay that claim). That contention is, to say the least, unmeritorious.

37    Likewise, it was submitted that, if GBAG was in fact bound by an exclusive jurisdiction clause, then it would be a “striking result” if it was able to use the Harman obligation to preclude Marsh from addressing that issue in a proper way in the very proceedings in which documents were discovered.

38    Although these issues concerning the deployment of the Harman obligation have no direct bearing on the substantive issues for determination in the hearing, a lay observer might perceive that I might not bring an unbiased perspective to the position of each party in the litigation.

39    The submissions identified above provide a more than ample basis for concluding that the test for disqualification has been satisfied. The GBAG Parties identified other submissions in a similar vein. I do not need to multiply examples. I conclude that I should recuse myself from further involvement in the Proceedings.

Third factor – disqualification by possession of extraneous information

40    In the circumstances, it is not necessary to reach any conclusion in relation to the third factor relied upon by the GBAG Parties, being the contention that “[i]t may reasonably be supposed that as Senior Counsel for the Marsh entities, Mr Moore SC received confidential and privileged briefings, information and instructions from one or both Marsh entities and their solicitors, the content and ambit of which is unknown to any party to the Proceedings other than the Marsh entities and which his Honour cannot disclose without the consent of his former clients.” Nevertheless, because it was fully argued, I will make some observations on the question. The GBAG Parties relied upon observations of Brereton J in British American Tobacco Australia Limited v Gordon [2007] NSWSC 109 at [85].

41    In oral submissions, the third factor was sharpened somewhat. It was submitted that, in circumstances where the Marsh entities had not yet filed a defence to any claims against them by the GBAG Parties, the articulation of aspects of that defence by me in the course of submissions led to a reasonable inference that I was in receipt of confidential and privileged briefings and instructions about that defence.

42    This contention is, of its very nature, speculative. I could have made the submissions I made on the basis of material that was also available to the GBAG Parties, being pleadings, transcripts, evidence and submissions from the Australian and UK proceedings. For example, the Letters of Engagement and accompanying Terms of Engagement were present in the materials already filed in the proceedings, being an affidavit of the solicitor acting for the GBAG Parties. They consist of short and simple terms and conditions. The submissions I made could readily be made on the face of the documents, without the need for any other person to articulate any particular construction of those documents, or any particular line to take by way of defence. The factual inference sought to be relied upon – that I must have had privileged and confidential briefings, information and instructions – is not one that, in my view, is made out in the circumstances. The conclusion that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of relevant issues would appear to depend upon this factual inference.

Conclusion

43    I am comfortably persuaded that the test from Ebner is satisfied and that I should recuse myself from any further participation in the Proceedings. I make orders consistent with that conclusion.

Associate:

Dated:    20 February 2025

SCHEDULE OF PARTIES