FEDERAL COURT OF AUSTRALIA

Martin v Hillier [2025] FCA 567

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application accepted for filing on 7 March 2025 (Amended Reopening Application) be dismissed.

2.    The interlocutory application filed by the applicant on 30 July 2024 be dismissed.

3.    The amended interlocutory application filed by the applicant on 25 March 2024 (Amended Leave Application) be dismissed.

4.    The applicant is to pay the first respondent’s costs of the Amended Reopening Application and the Amended Leave Application.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This proceeding was commenced by way of the filing by Victoria Martin of an application for leave to appeal from orders made in the primary proceeding (to which I refer at [5] below) on 8 March 2024 (March Orders) (described at [2(1)] below). I will refer to the proceeding before me as the leave proceeding. There are now three applications before the Court for resolution in the leave proceeding, each of which has been filed by Ms Martin.

2    In the order of their filing the applications are:

(1)    an amended application filed on 25 March 2024 seeking leave to appeal (Amended Leave Application) from the March Orders by which the Court ordered that:

(a)    certain documents identified in Lists of Documents prepared by the fourth, fifth and sixth respondents in the primary proceeding (who are also the fourth, fifth and sixth respondents in the leave proceeding), respectively Stephen Bradley Williams, Norman Waterhouse (A Firm) and Norman Waterhouse Lawyers Pty Ltd, (collectively the NW Parties) and which were subject to a claim for legal professional privilege in favour of the first respondent in the primary proceeding, Ms Martin, (and an entity described as Nordburger) were not the subject of legal professional privilege;

(b)    the NW Parties were to produce those documents for inspection by the applicant in the primary proceeding, James Hillier;

(c)    the NW Parties were to pay Mr Hillier’s costs; and

(d)    Ms Martin’s application for recusal of the primary judge be dismissed,

see Hillier v Martin (No 19) [2024] FCA 210;

(2)    an interlocutory application filed on 30 July 2024 seeking an order that I recuse myself “from further presiding over … proceeding, SAD 40 of 2024”, which is the leave proceeding (Recusal Application); and

(3)    an interlocutory application filed on 5 September 2024 seeking an order that the Recusal Application be reopened to permit the Court to hear further argument and receive the fresh evidence in Ms Martin’s affidavit dated 29 August 2024 (Martin August Affidavit) and that the Martin August Affidavit be received by the Court as evidence in the Recusal Application and the Amended Leave Application (Reopening Application). On 4 February 2025 an order was made in proceeding SAD223 of 2024 that a further amended interlocutory application lodged by Ms Martin on 4 October 2024 in the leave proceeding be accepted for filing (Amended Reopening Application). In the Amended Reopening Application, in addition to the orders sought in the Reopening Application, Ms Martin seeks orders that:

(i)    she be permitted to have “support and assistance in the hearing of this proceeding from her husband Thomas Martin as McKenzie friend”;

(ii)    Mr Whitington KC, Ms Doyle and Sykes Bidstrup be restrained from further representing Mr Hillier in the leave proceeding;

(iii)    the hearing and determination of the preceding prayer for relief (i.e. as to restraint of Mr Hillier’s legal representatives from further appearing) be referred to a Full Court or, in the alternative, another judge of the Court; and

(iv)    Ms Martin be given leave to further amend the Amended Leave Application in accordance with the “amended application for leave to appeal” annexed to the Amended Reopening Application.

3    The respondents to each of the applications described above are Mr Hillier as first respondent, Nordburger Operations Pty Ltd as second respondent, Erik Vari Pty Ltd as third respondent, and the NW Parties as fourth, fifth and sixth respondents respectively. Mr Hillier took an active role in the hearing of the Amended Leave Application, the Reopening Application and the additional prayers for relief sought in the Amended Reopening Application, Operations and Erik Vari did not appear, and the NW Parties filed a submitting notice in the leave proceeding wishing only to be heard on the question of costs. Despite that, the NW Parties appeared on each occasion that the proceeding was before the Court but made no substantive submissions other than providing a short written submission on one aspect of the Recusal Application.

BACKGROUND

4    Before turning to consider each of the applications, it is convenient to set out some relevant background by reference to the primary proceeding and the conduct of the applications before me.

The primary proceeding

5    The primary proceeding was commenced on 11 August 2020. Mr Hillier is the applicant in that proceeding, Ms Martin is the first respondent, Operations is the second respondent, Erik Vari is the third respondent and the NW Parties are the fourth, fifth and sixth respondents respectively.

6    Mr Hillier and Ms Martin are brother and sister. The NW Parties acted for Ms Martin and Operations at various times in respect of dealings with Mr Hillier prior to the dispute the subject of the primary proceeding and in connection with that proceeding until their joinder. The primary proceeding concerns a dispute in relation to the ownership of a hamburger business trading as “Nordburger” and, among other things, the terms of a trust pursuant to which shares in and assets of the Nordburger business are held by Operations.

7    In Mr Hillier’s submissions filed in the leave proceeding, he provides a summary of the dispute and the allegations he makes in the primary proceeding. To assist in an understanding of the applications which led to the March Orders and for background purposes only it is convenient to set out some of that summary:

(1)    Mr Hillier says that he devised and established the Nordburger restaurant chain. He contends that the Nordburger business was to be owned and operated by a joint venture of three parties - him, Ms Martin, and a company owned by Robert Craig, the father of the then Nordburger accountant, Mr Andrew Craig;

(2)    Mr Hillier transferred to Ms Martin her share in two tranches. When Mr Craig established the structure, he created a company to own the business and the shares in that company were vested solely in Ms Martin as trustee for a discretionary trust of which Mr Hillier and Ms Martin were beneficiaries. Mr Hillier contends that the formal structure did not reflect the true nature of the joint venture structure and for a number of years the parties proceeded compatibly in their dealings on the basis of the existence of a tripartite joint venture;

(3)    Mr Hillier claims that Ms Martin has effectively expropriated the assets of the business under her sole control in four steps:

(a)    Mr Martin, and Ms Martin’s solicitor, Mr Williams of Norman Waterhouse, prepared an extensive document, referred to as the William Buck brief, which made serious allegations of fraud and criminality against Mr Craig. It is alleged that the William Buck brief was used to confront Mr Hillier at a meeting attended by Ms Martin, Mr Martin, Mr Williams and another lawyer in April 2016 and to require him to cede effective control of the Nordburger business and assets to Ms Martin if he did not want to be pursued in respect of the same allegations of fraud and criminality advanced against Mr Craig. Mr Hillier executed a deed poll substantially ceding that control and handed over his email password to Ms Martin and Mr Martin, without taking legal advice. Mr Hillier was not to have any contact with Mr Craig or the Craig family joint venture and was effectively shut out of the business (this first stage is referred to as the Plan);

(b)    in 2019 Mr Hillier was excluded from any share in the financial returns of the business based on a claim, which he denies, that another business he had set up would be a rival and that in setting it up he had appropriated information or intellectual property belonging to Nordburger;

(c)    a restructure of the trust and business arrangements referred to at (2) above; and

(d)    frustrating Mr Hillier in the conduct of the primary proceeding by defaults and delays so that, amongst other things, he was denied access to the financial records of the Nordburger business;

(4)    by order made on 22 August 2023 the NW Parties were joined to the primary proceeding on the basis that they were participants in the Plan; and

(5)    Mr Hillier contends that Ms Martin, Mr Martin and Mr Williams wrongfully and by unlawful means conspired to create and execute the Plan (referred to as the Conspiracy) and that the NW parties have engaged in further conduct in connection with the primary proceeding in furtherance of the Plan and the Conspiracy.

8    In describing the nature of the dispute between the parties the primary judge observed at
[40]-[41] and [45] of Hillier (No 19) that:

40    The primary dispute, as between Mr Hillier, Ms Martin and Operations concerns the ownership of a hamburger restaurant business trading as Nordburger (the Nordburger business). It is common ground that the Nordburger business is presently conducted, and its assets are otherwise held, by a number of companies that together may be referred to as the Nordburger group. Within that structure, revenue from the hamburger restaurants is or has been derived by various trading entities each of which conducts the business of a hamburger restaurant. Certain expenses of the trading entities (including wages) are borne by a non-trading entity, Nordburger Pty Ltd. Ms Martin is a Director of the trading entities and Nordburger and is described in business records as having the title “Managing Director”.

41    As identified below, on any party’s case, Operations holds the shares pursuant to a trust known as the Nordburger Holdings Trust (NH Trust) and not for its own benefit or the benefit of its shareholder(s).

…

45    It is common ground that the primary beneficiaries of the NH Trust (if it be valid) are Ms Martin and Mr Hillier. The secondary beneficiaries also include Mr Martin, who is now the sole director of Operations as trustee. Distributions under the terms of the NH Trust (if it be valid) are at the discretion of Operations as trustee and so effectively within the control of Mr Martin.

9    The primary judge summarised Mr Hillier’s case as pleaded in the fifth amended statement of claim (5ASOC) at [42] of Hillier (No 19). It is not necessary to set out that summary.

10    For completeness I note defences have been filed in the primary proceeding but were not before me. Ms Martin has given evidence of limited aspects of her defence from which I understand that, in short, she denies the allegations made against her. The NW Parties have not provided any summary of their defences.

11    The procedural history giving rise to the March Orders is set out in Hillier (No 19) at [10]-[36] and conveniently summarised in Mr Hillier’s submissions. Relevantly:

(1)    on 15 August 2023 Mr Hillier filed an interlocutory application seeking access to the Norman Waterhouse file on the basis that their client’s (Ms Martin) conduct was iniquitous and no legal professional privilege would attach to communications and records of conduct relating to the iniquitous conduct (Iniquity Application) and an affidavit made by Mr Hillier on the same day (Hillier Affidavit);

(2)    the Iniquity Application involved Ms Martin, Operations and the NW Parties. However, as Ms Martin chose not to participate, it fell to the NW Parties to have carriage of the opposition to the Iniquity Application in the interests of their former clients;

(3)    the primary judge observed that Ms Martin was unrepresented and that she had not attended or been represented at any hearing since the proceeding had been allocated to his Honour’s docket on 1 September 2022. His Honour also noted that Operations was unrepresented, had not appeared at any case management hearing since November 2022, Mr Martin is Operations’ sole director and prior applications made by Mr Martin, who is legally qualified and a potential witness, to represent Operations had been refused: see Hillier (No 19) at [9];

(4)    prior to the filing of the Iniquity Application, Mr Hillier sought production by way of a “Kadlunga” list, a term used in South Australian practice for a list of documents subject to a claim for legal professional privilege which requires the identification of the basis of the claim with sufficient precision to enable it to be tested but without disclosing the privileged contents: see Kadlunga Proprietors v Electricity Trust of South Australia (1985) 39 SASR 310 at 415;

(5)    the NW Parties provided a Kadlunga list which, according to Mr Hillier, contained formulaic descriptions and did not properly conform to the requirements of such a list;

(6)    the Iniquity Application was listed for hearing on 6 September 2023 before a Registrar of the Court. Ms Martin filed no evidence or submissions in relation to it but shortly before its scheduled hearing sought, pursuant to s 35A(7)(b) of the Federal Court of Australia Act 1976 (Cth), to have the Iniquity Application determined by a judge; and

(7)    accordingly, the Iniquity Application was listed for hearing before the primary judge on 18 October 2023. The hearing was adjourned part heard to 25 October 2023 and concluded on 26 October 2023.

12    On 24 November 2023, after the conclusion of the hearing of the Iniquity Application, Ms Martin filed an interlocutory application seeking an order, among others, that the primary judge recuse himself (Primary Judge Recusal Application). By the Primary Judge Recusal Application Ms Martin alleged both actual and apprehended bias on the part of the primary judge.

13    As set out by the primary judge in Hillier (No 19), the basis for the Primary Judge Recusal Application is an interlocutory decision delivered by his Honour on 14 November 2018 when sitting as a Judge of the District Court of South Australia (District Court proceeding): see Craig & Ors v Hillier & Ors [2018] SADC 114. The parties to the District Court proceeding included Mr Hillier as first defendant. Ms Martin was named as a non-party and was represented in the argument on the interlocutory application by counsel instructed by Norman Waterhouse: see Hillier (No 19) at [62].

14    The Primary Judge Recusal Application was listed for case management hearing on 8 December 2023. Ms Martin did not appear. It was then listed for case management hearing on 7 February 2024. Again, Ms Martin did not appear. At that case management hearing the primary judge dismissed the Primary Judge Recusal Application. His Honour gave reasons for doing so in Hillier (No 19).

The primary judge’s reasons

Primary Judge Recusal Application

15    As set out above, the Primary Judge Recusal Application was based on the primary judge having heard an interlocutory application filed in the District Court proceeding: see Craig v Hillier. The parties to the District Court proceeding were Robert and Judith Craig and a corporate entity as plaintiffs, Mr Hillier as first defendant, a corporate entity as second defendant and Mr Craig and William Buck SA Pty Limited, the firm of accountants in which Mr Craig worked, as third parties.

16    The plaintiffs alleged that Mr Hillier and the second defendant had obtained loans from them through Mr Craig, a member of William Buck, as an intermediary. The primary judge did not otherwise preside over the hearing of the action in the District Court which the primary judge noted had settled: Hillier (No 19) at [61]-[64].

17    Based on Craig v Hillier, the primary judge observed that there were three interlocutory applications in the District Court proceeding, the first of which was a challenge by the plaintiffs to the defendants’ claim for common interest privilege over the documents in the William Buck brief. Following the hearing, at which no witnesses gave oral evidence or were cross-examined, the primary judge prepared written reasons upholding the claims made by Mr Hillier and Ms Martin over the William Buck brief. In doing so, his Honour did not inspect the documents the subject of the William Buck brief: Hillier (No 19) at [65]-[70], [73].

18    Ms Martin filed written submissions on 15 and 22 December 2023 in support of the Primary Judge Recusal Application and it appears that the application itself referred to Ms Martin’s affidavits affirmed on 17 and 25 October 2023 and 22 November 2023 and to her submissions dated 18 October 2023.

19    The primary judge referred to each of Ms Martin’s affidavits.

20    In relation to Ms Martin’s affidavit affirmed on 17 October 2023, the primary judge noted that Ms Martin deposed at [17] of that affidavit that:

It is a perverse feature of this application that lawyers for my brother appeared, together with my lawyers, before the same judge in 2018, in the District Court, in relation to the same issue of legal professional privilege. On that occasion, my brother was seeking to uphold the very same rights of privilege which he now attacks. The judge’s decision upheld legal professional privilege to a substantial effect on that occasion. I do not think it is appropriate for the applicant to now argue for the opposite outcome, or for this judge to hear this application, having already heard and determined the same issues.

21    The primary judge accepted Mr Hillier’s submission that the Iniquity Application concerned a different issue to that which was considered in the District Court proceeding and that Mr Hillier’s challenge to privilege was based upon an entirely different basis or events which had occurred after the District Court proceeding. The issue of whether there was an iniquity did not arise in the District Court proceeding because at the time there was no dispute between Ms Martin and Mr Hillier. Accordingly, the primary judge declined to recuse himself at the hearing on 18 October 2023: Hillier (No 19) at [82]-[87].

22    The primary judge then referred to Ms Martin’s affidavit affirmed on 25 October 2023 at [6] where she deposed that:

To the extent that James [Hillier] asserts that my allegations of misconduct by Andrew Craig were unjustified, or advanced for an ulterior purpose, I deny that entirely, and say further that James himself made allegations of very serious misconduct about Andrew Craig in court proceedings from 2017 to 2019, including before the Honourable Justice O’Sullivan in the District Court of South Australia. These allegations include undue influence, misleading and deceptive conduct, negligence, and fraud, in relation to events and circumstances with which the William Buck Brief is concerned.

23    The primary judge found that the fact that Mr Hillier alleged “very serious misconduct” on the part of Mr Craig, including in the argument his Honour heard in the District Court proceeding, is of no moment and any allegations of misconduct on the part of Mr Craig were not the subject of any finding by his Honour: Hillier (No 19) at [88]-[90].

24    The primary judge next considered Ms Martin’s affidavit affirmed on 22 November 2023 in which Ms Martin expressed an opinion that there is an overlap in the subject matter of the primary proceeding and the District Court proceeding and referred to three additional proceedings filed in the District Court. His Honour considered each of those proceedings finding that he either was not involved in them or, in one case, that his involvement was limited to conducting directions hearings and an application to set aside default judgment, but he did not hear any oral evidence or make any findings: Hillier (No 19) at [91]-[98].

25    The primary judge turned to consider Ms Martin’s written submissions. In that regard the primary judge:

(1)    did not accept a submission that he presided over proceedings in the District Court “directly related to the primary proceeding involving substantially the same parties and subject matter”. His Honour noted that the application that was the subject of Craig v Hillier was determined in favour of Mr Hillier and Ms Martin, Mr Hillier was a party to only one of the proceedings with which he was involved in the District Court and at no time in the District Court proceeding or in undertaking case management in the District Court did his Honour hear oral evidence or make any credibility findings: Hillier (No 19) at [102]-[107] ;

(2)    did not accept the matters identified by Ms Martin as common subject matter between the District Court proceeding and the primary proceeding: Hillier (No 19) at
[108]-[111];

(3)    found that Ms Martin’s contention that the factual findings for which Mr Hillier now contends in relation to the meeting which took place on 29 April 2016 or the consequences of the deed poll contradict the facts upon which he relied in the District Court proceeding was of no moment insofar as his Honour hearing the matter was concerned as he made no factual findings in relation to either of those matters. His Honour was of the same view in relation to Ms Martin’s submission that Mr Hillier “performed an ‘about face’” in relation to factual matters which underpin the substance of his claim: Hillier (No 19) at [112]-[115];

(4)    did not accept Ms Martin’s submission to the effect that the District Court proceeding was brought to his Honour’s attention on a number of occasions and that there was “a lack of any attempt to recognise or reconcile the obvious discrepancy between [the primary judge’s] previous factual findings and those for which [Mr Hillier] now contends which may be due to wilful blindness with respect to the disqualifying features”. The primary judge noted that with one exception on no occasion was an application made that the primary judge recuse himself and that there were no previous factual findings as the decision in Craig v Hillier was not based on factual findings but on untested affidavit evidence: Hillier (No 19) at [116]-[121];

(5)    did not accept that he had personal knowledge through his “own physical observation of the very events … that are the ... matters in question in [the primary proceeding]”: Hillier (No 19) at [122]-[123]; and

(6)    noted that at the time of the decision in Craig v Hillier there was no dispute between Ms Martin and Mr Hillier. His Honour observed that the allegation in the primary proceeding is not the manner in which the District Court proceeding was conducted but the fact that it was conducted such that Ms Martin’s suggestion that he may be a witness is untenable: Hillier (No 19) at [124]-[128].

26    Ms Martin submitted that the primary judge possessed extraneous information which would lead to his disqualification but did not identify the particular information arising from the District Court proceeding which was said to be prejudicial or inadmissible and which might give rise to a relevant apprehension of bias. The same was the case with the other proceedings identified by Ms Martin, referred to as the Cherry Hospitality and Ace Up The Sleeve proceedings. The primary judge concluded that Ms Martin did not identify any knowledge of prejudicial but inadmissible facts or circumstances sufficient to give rise to an apprehension of bias: Hillier (No 19) at [129]-[133].

27    In relation to the two stage test identified in Charisteas v Charisteas (2021) 273 CLR 289 the primary judge found that the material identified by Ms Martin did not satisfy the first stage of the test of apprehended bias, namely material that might lead a judge to decide the case other than on its legal and factual merits. That being so, there was no basis to consider the second stage and the logical connection between that matter and the feared departure from the judge deciding the case on its merits: Hillier (No 19) at [134].

28    As for the suggestion of actual bias the primary judge found that there was no evidence that he had pre-judged the action such that he had a “closed mind to the issues raised” and was “not open to persuasion” or that he had acted with “such partisanship or hostility as to show that [he] had his mind made up against” the respondents and “was not open to persuasion in favour of” them: Hillier (No 19) at [136].

29    The primary judge therefore dismissed the Primary Judge Recusal Application.

Iniquity Application

30    The Iniquity Application concerned the documents in the lists of documents filed in the primary proceeding on 2 June 2023 that were the subject of a claim for legal professional privilege in favour of Ms Martin. By the Iniquity Application Mr Hillier contended that, by reason of iniquity, the privilege claimed in favour of Ms Martin over the documents had either been displaced or had never attached.

31    The primary judge reviewed the applicable principles relating to a claim for legal professional privilege, including when it is displaced, and the parties’ submissions before determining the Iniquity Application in favour of Mr Hillier. The primary judge adopted as a starting point the principle that a document will be subject to legal professional privilege if it is created with the “dominant purpose” of providing legal advice and, after considering the evidence, concluded that there was prima facie evidence of iniquity such as to displace the legal professional privilege claimed on the part of Ms Martin in the documents in question. Although mindful of the seriousness of doing so, his Honour was prepared in all the circumstances to order that the documents in the lists of documents filed on 2 June 2023 subject to a claim of legal professional privilege in favour of Ms Martin or any entity described as Nordburger be produced by the NW Parties for inspection.

Amended Leave Application

32    Ms Martin filed the Amended Leave Application on 25 March 2024 together with an affidavit affirmed by her on 25 March 2024, having first commenced the leave proceeding by filing an application for leave to appeal on 22 March 2024 together with an affidavit she affirmed on 22 March 2024.

33    The Amended Leave Application was first made returnable for case management hearing before me on 1 May 2024 at 9.30 am.

34    At 12.45 pm on 30 April 2024, Ms Martin contacted NSW Registry by email to request an adjournment of that case management hearing until she obtained an ex tempore judgment given by the primary judge on 18 October 2023. In her email, Ms Martin explained that she did not want to disturb the listing unless it was necessary in order for her to procure a copy of the ex tempore judgment. As the ex tempore judgment was not the subject of the Amended Leave Application, the case management hearing was not adjourned.

35    At 4.53 pm on 30 April 2024, Ms Martin again contacted NSW Registry, this time to advise that she was unable to attend the first case management hearing because of her caregiving responsibilities for her young children. Relying on her affidavit affirmed on 25 March 2024, Ms Martin indicated that she had limited availability: from 10.30 am to 11.45 am on Wednesdays; and from 10.30 am to 2.00 pm on Tuesdays and Thursdays. She gave no explanation for why she only communicated her availability to the Court the evening before the scheduled case management hearing.

36    The proceeding remained listed for case management hearing on 1 May 2024. Ms Martin did not appear. I made timetabling orders for the conduct of the leave proceeding including orders that Ms Martin file and serve her written submissions by 15 May 2024, listing the Amended Leave Application for hearing on 29 May 2024 and for Mr Hillier to provide a copy of the Orders to Ms Martin at her last known email address.

37    By email sent on 6 May 2024 Ms Martin indicated that the hearing date of 29 May 2024 was not convenient to her. The proceeding was listed for further case management on 15 May 2024 at which time both Ms Martin and counsel for Mr Hillier appeared before me. I made further timetabling orders (15 May 2024 Orders) which took account of Ms Martin’s availability including that:

2.    By on or before 27 May 2024, the applicant is to:

(a)    file and serve written submissions in support of her amended application for leave to appeal filed on 25 March 2024, such submissions to be filed strictly in compliance with r 35.19 of the Federal Court Rules 2011 (Cth) and, in particular, to be no longer than 10 pages in length;

(b)    file and serve any affidavit in reply to the affidavit filed by the first respondent on 9 April 2024; and

(c)    provide the first respondent’s solicitors an index of the material which she proposes to include in the application book for the hearing of her amended application.

…

4.    By 14 June 2024 the applicant is to file any application to be represented at the hearing of her amended application by her husband together with any affidavit in support and her submissions, not exceeding five pages in length.

5.    If the applicant files an application in accordance with Order 4 above the first respondent is to file and serve any affidavits in response and his submissions, not exceeding five pages in length, by 21 June 2024.

6.    Any application made by the applicant to be represented at the hearing of her amended application by her husband will be dealt with on the papers.

7.    By 4 July 2024 the applicant is to file and serve the application book to be prepared in accordance with the index agreed between the parties pursuant to the procedure set out in Orders 2(c) and 3(b) above. The application book is to be prepared in accordance with Format 1 of the Court’s eBooks Practice Note.

8    the amended application be listed for hearing with an estimate of 2 hours on 11 July 2024 at 10.30 am ACST, such hearing to be held in person in the Court’s Adelaide registry.

…

38    On 28 May 2024 at 4.29 pm Ms Martin emailed NSW Registry acknowledging that she had not filed her submissions in accordance with Order 2 of the 15 May 2024 Orders because of her caregiving responsibilities. On 30 May 2024 I made orders in chambers varying the 15 May 2024 Orders such that Ms Martin was to file and serve written submissions in support of the Amended Leave Application by 31 May 2024 (30 May 2024 Orders). The 30 May 2024 Orders included a notation that if Ms Martin intended to seek any further variation of the 15 May 2024 Orders or of the 30 May 2024 Orders, she was to apply to relist the leave proceeding.

39    On 31 May 2024 at 11.37 am Ms Martin emailed the NSW Registry indicating that she “fully expect[ed] to file the affidavit and submissions and to provide the draft index to the first respondent today” but that her submissions would not “attach relevant transcript pages” due to her financial inability to access the requisite transcripts. Ms Martin did not file and serve her submissions by 31 May 2024.

40    On 3 June 2024 Ms Martin emailed the NSW Registry in the following terms (as written omitting formalities):

In accordance with order 4 of the orders of Markovic J, dated 30 May 202 in the above matter, I seek to exercise liberty to apply to have the proceeding relisted for the purpose of further variation of the orders in SAD 40/2024.

I will file a formal application and affidavit giving notice of the proposed variation by close of business today.

At the time, no explanation was given by Ms Martin for her non-compliance with the 30 May 2024 Orders.

41    On 4 June 2024 Ms Martin emailed the NSW Registry seeking directions under r 1.21 of the Federal Court Rules 2011 (Cth) in relation to “an issue of procedural uncertainty”. The NSW Registry sought clarification from Ms Martin as to which of the 30 May 2024 Orders she sought to vary and on 6 June 2025 Ms Martin indicated (among other things) that she considered that “all of the orders may require variation”.

42    On Ms Martin’s application the leave proceeding was listed for case management hearing on 11 June 2024. At that case management hearing Ms Martin applied to adjourn or, in the alternative, stay the Amended Leave Application. I refused that application and ordered that Ms Martin pay Mr Hillier’s costs of her application.

43    On 14 June 2024, Mr Hillier filed his written submissions on the Amended Leave Application.

44    The leave proceeding was listed for case management hearing on 11 July 2024 for Ms Martin to explain why she remained in default of the 30 May 2024 Orders. At the time I made orders extending the time for Ms Martin to file and serve her written submissions to 5.00 pm on 18 July 2024. The Amended Leave Application remained listed for hearing on 11 July 2024 at 10.30 am ACST.

45    Ms Martin did not file her submissions or any affidavits between 11 June 2024 and 11 July 2024 nor did she file and serve an application book as required by the 15 May 2024 Orders.

46    At 9.45 am on 11 July 2024, 45 minutes before the scheduled commencement of the hearing of the Amended Leave Application, Ms Martin contacted the Court’s South Australia Registry to request an adjournment of the commencement of the hearing to 11.00 am because she was running late. The adjournment was granted.

47    At the commencement of the hearing of the Amended Leave Application Mr Martin sought leave to appear as an intervenor in the proceeding on the basis that he was affected by the decision the subject of the Amended Leave Application. In making that application Mr Martin submitted, among other things, that he was really seeking to assist Ms Martin and that “in circumstances where [Ms Martin] does not have that assistance, then it’s likely that she will not be effectively heard in the proceeding. No aspersion on your Honour there, but she will not be in a position to advance her best case and …it’s in the interests of justice that she have that opportunity and I am able to provide it by intervening”. Mr Martin’s application was refused.

48    On 11 July 2024 at 11.03 am Ms Martin sent her submissions to the Court. Despite the fact that they had not been filed in accordance with the Court’s earlier orders, I granted Ms Martin leave to rely on those submissions. At the conclusion of the hearing of the Amended Leave Application, Ms Martin sought leave to file written submissions in reply. I made orders granting her leave to do so by 5.00 pm on 18 July 2024. If she failed to do so, she was to be precluded from filing further submissions.

Subsequent applications

49    On 11 July 2024 at the conclusion of the hearing, I reserved my decision on the Amended Leave Application.

50    On 30 July 2024 Ms Martin filed the Recusal Application together with a lengthy supporting affidavit.

51    On 2 August 2024 Ms Martin filed a “Notice of a Constitutional matter under section 78B of the Judiciary Act 1903” (s 78B Notice) in which she described the nature of the constitutional matter as follows:

Are statutory provisions for making a judicial misconduct complaint under s.15(1AA)(c) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), incompatible with preserving the institutional integrity of the Federal Court of Australia (Court), as a Commonwealth Court established under Chapter III of the Constitution?

52    On 14 August 2024:

(1)    the leave proceeding was listed for case management hearing. At that time, I made orders for Ms Martin and Mr Hillier to file and serve their respective submissions on the Recusal Application and for the Recusal Application to be determined on the papers; and

(2)    Ms Martin filed an affidavit of service of the s 78B Notice. I am satisfied that since service of the s 78B Notice a reasonable time has elapsed for consideration by the Attorneys-General of the Commonwealth and of the States and Territories of the question of intervention in the leave proceeding or removal of the matters set out in the s 78B Notice to the High Court. Despite this, no Attorney-General has sought to intervene in the leave proceeding nor has Ms Martin since filing the s 78B Notice sought to substantively agitate the contentions raised in the s 78B Notice.

53    On 23 August 2024 Ms Martin filed her submissions in support of the Recusal Application. Mr Hillier has not filed any submissions on the Recusal Application.

54    On 5 September 2024 Ms Martin filed the Reopening Application and on 25 September 2024 she sought to file an amended interlocutory application seeking the same orders as in the Reopening Application and the following additional prayers for relief (Draft Amended Reopening Application):

3    The Applicant be permitted to have support and assistance in the hearing of this proceeding from her husband Thomas Martin as McKenzie friend.

4    Mr R I Whitington KC, Ms Hannah Doyle and the firm Sykes Bidstrup be restrained from further representing the first respondent in the proceedings.

5    The hearing and determination of Order 4 be referred to the Full Court, or in the alternative, another Judge of the Court.

55    The leave proceeding was listed for case management hearing on 26 September 2024 at which time I refused Ms Martin leave to file the Draft Amended Reopening Application and made orders for the filing of submissions in relation to the Reopening Application and for the Reopening Application to be determined on the papers.

56    On 4 October 2024 Ms Martin again attempted to file an amended interlocutory application seeking orders for the reopening of the Amended Leave Application together with a further amended application for leave to appeal and a further amended draft notice of appeal (ie the Amended Reopening Application). The Amended Reopening Application is identical to the Draft Amended Reopening Application save for the inclusion of the following additional prayer for relief:

6.    The Applicant be given leave to further amend the Amended Application for Leave to Appeal dated 25 March 2024, in accordance with the documents annexed to this application.

57    The Duty Registrar refused Ms Martin leave to file the Amended Reopening Application pursuant to r 2.26 of the Federal Court Rules on the basis that it constituted an abuse of process and was frivolous or vexatious. On 23 October 2024 Ms Martin filed an application for judicial review of that decision.

58    On 8 and 9 October 2024 Ms Martin filed submissions in support of the Reopening Application, the latter being an amended version of the former.

59    On 4 February 2025, Ms Martin’s application for judicial review of the Duty Registrar’s decision was determined in her favour and she was granted leave to file the Amended Reopening Application, which was accepted for filing on 7 March 2025.

60    On 7 March 2025 the South Australian Registry emailed the parties noting that the Amended Reopening Application had been accepted for filing and that, unless any party indicated otherwise, the Court intended to determine the Amended Reopening Application on the papers.

61    In response, Ms Martin indicated that she sought an oral hearing in relation to the additional prayers for relief in the Amended Reopening Application. Accordingly, on 19 March 2025 I made the following orders (19 March 2025 Orders):

1.    The applicant is to file and serve any further evidence and her submissions in support of the additional orders sought in her further amended interlocutory application filed on 7 March 2025 (Further Amended IA), such submissions not exceeding five pages in length, by 5.00 pm on 7 April 2025.

2.    Any respondent that wishes to be heard in relation to the Further Amended IA is to file and serve any evidence and/or submissions in reply, such submissions not exceeding five pages in length in each case, by 5.00 pm on 28 April 2025.

3.    List the Further Amended IA for hearing on 21 May 2025 at 11.00 am ACST with an estimate of two hours.

62    On 3 April 2025, Ms Martin emailed the NSW Registry seeking an extension of the timetable in the 19 March 2025 Orders. Mr Hillier neither consented to nor opposed the extension provided that he was afforded a commensurate extension and any such variation to the timetable did not prejudice the hearing date of 21 May 2025. The NW Parties did not take a position in relation to the proposed orders.

63    On 4 April 2025 I made the following orders:

1.    The time for compliance with Order 1 made on 19 March 2025 (the applicant is to file and serve any further evidence and her submissions in support of the additional orders sought in her further amended interlocutory application filed on 7 March 2025 (Further Amended IA), such submissions not exceeding five pages in length) be extended to 5.00 pm on 28 April 2025.

2.    The time for compliance with Order 2 made on 19 March 2025 (any respondent that wishes to be heard in relation to the Further Amended IA is to file and serve any evidence and/or submissions in reply, such submissions not exceeding five pages in length in each case) be extended to 5.00 pm on 19 May 2025.

64    In accordance with the orders made on 4 April 2025, Mr Hillier filed submissions on 19 May 2025.

65    At 4.40 pm on 20 May 2025, the day before the hearing, Ms Martin email to the Court’s South Australian Registry her submissions in support of prayers 3 to 6 in the Amended Reopening Application. I granted leave to Ms Martin to rely on those submissions at the hearing of the additional orders sought in the Amended Reopening Application.

CONSIDERATION

66    As set out above, there are three applications before me for determination. Ordinarily I would first determine the Recusal Application. However, given that by prayers 1 and 2 of the Amended Reopening Application Ms Martin seeks to reopen to rely on additional evidence both on the Recusal Application and the Amended Leave Application I will consider those prayers for relief first, followed by the Recusal Application, the balance of the Amended Reopening Application and finally the Amended Leave Application.

Amended Reopening Application – Prayers 1 and 2

67    By prayers 1 and 2 of the Amended Reopening Application Ms Martin seeks the following relief:

1.    The interlocutory application filed by the applicant on 30 July 2024 (Recusal Application) be reopened for the Court to hear further argument and to receive the fresh evidence in the applicant’s affidavit dated 29 August 202 (29 August 2024 Affidavit).

2.    The 29 August 2024 Affidavit be received by the Court as evidence in relation to the Recusal Application and the applicant’s amended application for leave to appeal filed on 27 March 2024.

(Underlining omitted.)

68    As set out above, on 26 September 2024 I made an order that the Reopening Application be resolved on the papers. By the 19 March 2025 Orders I listed for oral hearing the additional prayers for relief sought in the Amended Reopening Application, being prayers 3 to 6. Prayers 1 and 2 of the Amended Reopening Application remain to be resolved on the papers.

69    Mr Hillier opposes prayers 1 and 2 of the Amended Reopening Application. The NW Parties take a neutral position but, given the serious allegations made about the conduct of their solicitors, provided a short submission about the context in which the inspection of documents about which Ms Martin now complains took place. They reject any misconduct on the part of their solicitors.

70    By prayers 1 and 2 of the Amended Reopening Application Ms Martin seeks to reopen the Amended Leave Application and the Recusal Application to rely on fresh evidence, namely the Martin August Affidavit. Ms Martin submits that she first obtained the additional evidence in that affidavit on 28 August 2024 and that she could not reasonably have obtained it any sooner as it consists of correspondence between the parties from which she says she was secretly excluded.

71    Ms Martin’s primary contention is that the additional evidence independently corroborates the basis for her complaints about having been deliberately excluded by the other parties to the primary proceeding from relevant communications and prevented from inspecting a substantial additional number of directly relevant documents at the offices of Mr Hillier’s solicitor from August 2023. She contends that her exclusion from this process was materially prejudicial to her in the primary proceeding, including in conducting the Iniquity Application.

72    Ms Martin submits that the additional documents were inspected by the NW Parties on 8 August 2023 and 14 August 2023 but that she was not informed that those documents were available for inspection. She contends that the concealment of the fact that further documents had been made available for inspection meant that she was denied the opportunity to consider incorporating any of the further disclosure into her amended court documents.

73    Ms Martin says that she learned of the inspection of the additional documents by the NW Parties on 1 September 2023 following service of an affidavit affirmed by Fiona Errington on 31 August 2023, which was a fortnight after they were made available to them.

74    Much of Ms Martin’s submissions restate issues relevant to the primary proceeding and an alleged default in discovery by Mr Hillier. In addition to her primary contention set out above, Ms Martin more generally submits that:

(1)    Mr Hillier has not complied with an order to discover and produce a settlement deed;

(2)    Mr Hillier was and is obliged to discover the open parts of the Randle & Taylor files in a formal list of documents in the primary proceeding;

(3)    the summons and statement of claim filed in related District Court proceedings on 13 March 2019 should have been discovered in the primary proceeding and the failure to do so has resulted in Mr Hillier obtaining “draconian orders by fraud”;

(4)    numerous documents are missing and have been removed from the Randle & Taylor files, for example Mr Hillier’s evidence as to the circumstances in which he executed the deed poll put to him at the meeting on 29 April 2016;

(5)    the reason why Mr Hillier has not been challenged by the Court in relation to his “obvious default” in discovery is because his counsel “has been willing to make false and misleading submissions to the Court to trivialise and demean [Ms Martin’s] complaints”;

(6)    Ms Martin only became aware of the extent to which counsel for Mr Hillier had misled the Court at the hearing before the primary judge when she read the transcript and the ex tempore judgment of 18 October 2023, well after she had filed her application for leave to appeal. She raised the issue in the leave proceeding at the first opportunity on 4 June 2024;

(7)    I refused to entertain the issue of default of discovery in the primary proceeding on the basis that it was not feasible to address that issue in the course of the Amended Leave Application which Ms Martin says is contrary to the decision in Clifton (Liquidator) v Kerry J Investment Pty Ltd trading as Clenergy [2020] FCAFC 5; and

(8)    in order to fairly deal with her contentions as to default in providing discovery I would have to start by accepting the possibility that I had been deceived by counsel for Mr Hillier but I have shown no curiosity or interest in this question despite mounting evidence that this is the case, giving rise to a reasonable apprehension of bias.

75    Section 27 of the Federal Court Act provides that the Court may receive further evidence in an appeal. That said the Amended Leave Application is not strictly, and the Recusal Application is not, an appeal.

76    In Briggs on behalf of the Boonwurrung People v State of Victoria [2024] FCA 288 Murphy J considered an application to reopen to tender fresh evidence in a proceeding after his Honour had reserved his decision, as has occurred in this case. Ms Martin first made her application to reopen and tender fresh evidence after I had reserved in the Amended Leave Application, an order had been made that the Recusal Application would be determined on the papers and Ms Martin had filed her submissions in support of that latter application.

77    In Briggs, commencing at [20], Murphy J conveniently set out the principles to be applied in an application to reopen a matter after judgment is reserved. His Honour observed (at [20]) that the Court has an inherent power to reopen a matter for hearing up until the time of entry of judgment and that “the power is discretionary, but exceptional, and is to be exercised having regard to the public interest in maintaining the finality of litigation” referring to Smith v New South Wales Bar Association (1992) 176 CLR 256 at 265. His Honour relevantly continued as follows at [22]-[28]:

22    The overriding principle to be applied by the court in determining whether or not to grant leave to re-open a case for the admittance of further evidence, is that it must be in the interest of justice in the proceeding: see Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24] (Kenny J); Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd [2017] FCAFC 75; 251 FCR 404 at [171] (Rares, Murphy and Davies JJ); The Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust (ACN 083 629 225) v Lenard’s Pty Ltd (No.2) [2004] FCA 1310 at [22] and [25] (Mansfield J).

23    As the State submitted, the authorities show that there are four recognised categories of cases which, subject to the interests of the administration of justice, may justify the granting of leave to re-open, although the categories are not necessarily closed: Bradshaw at [24]; Spotlight at [25]-[26]. Broadly, the categories are:

(a)    fresh evidence. This brings into consideration whether the evidence is “new” in the sense that the applicant was unaware of it at the time of the original hearing, and also that it is evidence the applicant could not have obtained with reasonable diligence: Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3 at [74] (North, Barker and Katzmann JJ);

(b)    inadvertent error. This may occur, for example, where counsel inadvertently overlooked an issue that arises on the pleadings or during a proceeding: Urban Transport Authority (NSW) v Nweiser (1992) 28 NSWLR 471 at 474–5 (Clarke JA);

(c)    mistaken apprehension of the facts. Similarly, this may occur where counsel has misapprehended the nature or significance of facts proven or agreed: Nweiser at 474–5; and

(d)    mistaken apprehension of the law:

24    In contrast, the discretion to re-open should not ordinarily be exercised where counsel has made a tactical or forensic decision not to lead evidence on an issue: Nweiser at 474-5, 478. …

25    Any prejudice to the party resisting the application that is likely to be suffered will be relevant: Nweiser at 478. As will the public interest in the timely conclusion of litigation: Australian Securities and Investments Commission v Rich [2006] NSWSC 826; (2006) 235 ALR 587 at [18].

26    The probability that the additional evidence will affect the result is also relevant: Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1436; (2008) 171 FCR 174 at [209] (Lindgren J). If success in re-opening is not likely to make any difference to the outcome of the trial, that would weigh against putting the parties and the court to the delay, trouble and expenditure of resources involved in reopening.

27    The requisite degree of probability has been stated in different ways. In Re Australasian Meat Industry Employees’ Union (WA Branch); Ex parte Ferguson (1986) 67 ALR 491 at 493–94 Toohey J said that the evidence should only be admitted “when it is so material that the interests of justice require it” or where the evidence “would most probably affect the result”. In Daniel v Western Australia (2004) 138 FCR 254 at 269 RD Nicholson J said that it must be shown that the new evidence, if accepted, would “most certainly affect the result”. A party should not, however, be permitted to re-open a case merely because, in retrospect, it can be seen that better evidence about an issue in dispute might have changed the result. Were it otherwise, there would be no end to litigation: Davis v Insolvency and Trustee Service Australia (No 2) [2011] FCAFC 9; 190 FCR 437 at [9] (Keane CJ, Besanko and Perram JJ).

28    The concerns raised on an application to adduce further evidence after the close of the case involve consideration not only of the interests and prejudice of the parties, and the public interest in the finality of litigation, but also the availability of public resources. In Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [93] (Gummow, Hayne, Crennan, Kiefel and Bell JJ) the High Court observed that “the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding.” That finds reflection in the “overarching purpose” stated in s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act) to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible, including objectives of:

(a)    the just determination of all proceedings before the Court;

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)     the efficient disposal of the Court’s overall caseload;

(d)    the disposal of all proceedings in a timely manner; and

(e)    the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

78    The relevant category as identified at [23] of Briggs for the purpose of prayers 1 and 2 of the Amended Reopening Application is “fresh evidence”. That in turn calls into question whether the evidence in the Martin August Affidavit is “new” in the sense that Ms Martin was unaware of it at the time of the original hearing and whether it is evidence that Ms Martin could not have obtained with reasonable diligence.

79    As to the first question, there are two categories of material annexed to the Martin August Affidavit. The first is a bundle of correspondence dated between 3 August 2023 and 14 August 2023 which was provided to Ms Martin by Ms Errington of Gilchrist Connell, the solicitors for the NW Parties, on 28 August 2024. Based on the material before me, it is not apparent what prompted Ms Martin to seek out the correspondence from Gilchrist Connell which she now says I should receive as fresh evidence. The second is the transcript of the case management hearing in the leave proceeding which took place on 11 June 2024. I am not satisfied that either category of material is “new”, in the sense that Ms Martin was unaware of it, or that Ms Martin could not have otherwise obtained the evidence with reasonable diligence prior to the hearing of the Amended Leave Application.

80    The NW Parties explain that the exchange of correspondence between their solicitors and Mr Hillier’s solicitors occurred in the context of resolution of the NW Parties’ application in the primary proceeding for further and better discovery from Mr Hillier, an application in which Ms Martin did not join. Ms Martin was not copied into the exchanges between the NW Parties and Mr Hillier which seemed to lead to the resolution of the NW Parties’ application. However, in the Martin August Affidavit Ms Martin accepts that she was copied into a draft communication to the Court about the ultimate resolution of that application. Thus, as at August 2023 Ms Martin was aware of the NW Parties’ application for further and better discovery, that it had resolved and that, in resolving it, the settlement deed for the District Court proceeding was to be discovered and produced.

81    In their submissions the NW Parties also explain that the circumstances in which inspection of files held by Mr Hillier’s solicitors took place were addressed by Ms Errington in her ninth affidavit dated 31 August 2023 filed in the primary proceeding. That affidavit was served in the primary proceeding, and after its receipt, Ms Martin requested, and was provided with, a copy of the documents obtained by the NW Parties from Mr Hillier. Thus, it is clear that by late August 2023, Ms Martin was not only aware that the NW Parties’ application for further and better discovery had resolved but that they had inspected material held by Mr Hillier and she had been given copies of the very documents which the NW Parties had obtained as a result of that process.

82    Given this level of knowledge, in my view the first category of evidence is not new. Ms Martin was aware that the NW Parties had inspected documents in Mr Hillier’s possession.

83    Turning to the second question, even if the evidence was new, it was open to Ms Martin to request copies of the correspondence that passed between the NW Parties and Mr Hillier by which the inspection for further and better particulars of the further documents was facilitated and the NW Parties’ application resolved from mid-August 2023 when she first became aware of the resolution.

84    The second category of evidence is the transcript of the 11 June 2024 case management hearing before me. That transcript has been available since 11 June 2024. It is not new evidence and self-evidently Ms Martin could have obtained it on and from 11 June 2024.

85    Nor am I satisfied that the evidence in the Martin August Affidavit is so material that it would most probably affect the outcome of the Amended Leave Application or the Recusal Application. There is nothing in the Martin August Affidavit or Ms Martin’s submissions which would lead me to that conclusion. The first category of additional evidence principally goes to a complaint about alleged deficiencies in discovery in the primary proceeding, which is not in issue before me on the Amended Leave Application. Relatedly, at the hearing of the Amended Leave Application, Ms Martin accepted that she had possession of electronic copies of the relevant documents from early September 2023 such that evidence about the exchanges between the NW Parties and Mr Hillier which led to Mr Hillier giving further discovery and, in turn, led to Ms Martin receiving copies of the documents, cannot have any bearing on my determination of the Amended Leave Application or the Recusal Application.

86    Ms Martin makes no submissions about the second category of evidence, the 11 June 2024 transcript, and how she intends to deploy it on either the Amended Leave Application or the Recusal Application. I am unable to discern how it could make a difference to either application.

87    Ms Martin has not established that it is in the interests of justice for me to depart from the usual rule that parties must present their case prior to judgment being reserved. In the circumstances I reject prayers 1 and 2 of the Amended Reopening Application. Ms Martin should not be permitted to reopen the Amended Leave Application or the Recusal Application to enable her to rely on the Martin August Affidavit.

Recusal Application

88    I turn next to the Recusal Application.

89    In support of the Recusal Application Ms Martin relies on her affidavit affirmed on 30 July 2024 (Martin July Affidavit) and her submissions filed on 23 August 2024. She alleges both actual and apprehended bias on my part. Neither Mr Hillier nor the NW Parties have filed submissions in relation to the Recusal Application.

90    The Martin July Affidavit is detailed, comprising over 180 pages in length including annexures. It includes matters which amount to submissions, rather than evidence, and matters which are not relevant to the application. I do not propose to set out the content of the Martin July Affidavit in any detail. In summary it addresses the following topics: a historical professional association between me and another judge of this Court who was for a time the docket judge in proceedings (NRF Proceeding) between Mr Martin and the law firm of which he was formerly a partner, Norton Rose Fulbright Australia (NRF); an asserted overlap between the NRF Proceeding and the primary proceeding; complaints made by Mr Martin in relation to the judge who was for a time a docket judge in the NRF Proceeding; inferences about my knowledge of the complaints made by Mr Martin about that judge and the effect that would have on me; and my conduct in the course of the case management and hearing of the Amended Leave Application.

91    In her submissions Ms Martin first refers to a summary of the authorities before setting out the central factual assertions (which she refers to as the Primary Factual Matters) to which she says the first limb of the “double might” test identified in the authorities concerning apprehended bias is to be applied in her case. In summary, Ms Martin contends that:

(1)    Mr Martin, an admitted lawyer and a former partner of NRF was a party to proceedings in this Court in the course of which he made allegations of criminal misconduct against a judge of the Court (Allegations);

(2)    in response to Mr Martin raising the Allegations in an appeal from orders made in the NRF Proceeding, a Full Court of this Court “severely criticised him for doing so, and made other findings which called into question his rationality and character”;

(3)    the Full Court did not undertake any analysis of the evidence in support of the Allegations which Mr Martin sought to tender on the appeal, and declined to accept the material into evidence;

(4)    Mr Martin also made a judicial misconduct complaint (Complaint) about that judge to the (former) Chief Justice pursuant to s 15(1)(c) of the Federal Court Act. That complaint was dismissed, according to Ms Martin, without undertaking any independent analysis of it;

(5)    Mr Martin requested an internal review of the handling of the Complaint, which was dismissed by the (former) Chief Justice; and

(6)    I have a long-standing personal historical association with and, have been a judicial colleague for many years in the Sydney Registry of the Court with that judge.

92    Ms Martin makes the following complaints in relation to my conduct in this proceeding:

12    … The question of false accusations has also become an issue in relation to the conduct of Markovic J in presiding over the Leave Application, in that the applicant has alleged in open Court, supported by affidavit evidence, that senior counsel for the first respondent has made materially misleading submissions to the Court on numerous occasions. Markovic J refused to countenance such allegations, but willingly accepted the bald assertions made from the bar table by senior counsel for the respondent to refute the allegations. Ultimately her Honour dismissed the applicant’s motion, with costs. Markovic J has since sought to downplay and marginalise concerns about a serious default of discovery obligations. There also appears to have been co-ordination between the chambers of McIlwaine J and Markovic J and Registry about the listing of an application in the primary proceedings to have various interlocutory orders set aside as having been procured by fraud. ...

13    The apparent reluctance of Markovic J to stay or adjourn the Leave Application in order to allow the applicant to first apply to have various interlocutory orders set aside in the primary proceedings, including the freezing order which has deprived the applicant of representation for almost two years, appears to result from an inability or unwillingness to take seriously the applicant’s allegations of fraud and malpractice.

93    Ms Martin submits that from the perspective of the putative well informed, fair minded lay observer (who Ms Martin refers to as the putative lay observer), the Primary Factual Matters provide reliable grounds for reasonable inferences as to the probability that: I have a relationship of mutual positive affection, familiarity and loyalty with the other judge (and his wife), I have been made aware, at a point in time prior to the allocation of the leave proceeding to my docket, that Mr Martin had alleged misconduct against that judge and submitted the Complaint; and that I participated in, or witnessed, discussion amongst judicial and/or other officers of the Court in relation to the Complaint.

94    Ms Martin submits that the facts known to the putative lay observer include that during the case management hearing for the Recusal Application I did not offer any comment on factual matters peculiarly within my personal knowledge. She contends that the putative lay observer would reasonably presume that I had read the Martin July Affidavit and the s 78B Notice prior to the case management hearing and that I would have been at pains to clarify or correct at the first available opportunity, any factual assertion in the Martin July Affidavit which was not true or correct, particularly in relation to any inferences about matters peculiarly within my own knowledge.

95    Ms Martin submits that the putative lay observer would likely regard it as plausible that the reason why I did not comment on the asserted facts at the case management hearing was because the relevant factual assertions in the Martin July Affidavit are substantially true and correct. She says that the putative lay observer’s conclusions in that regard would probably gain force because I subsequently declined an invitation from Ms Martin (made by email dated 21 August 2024 directed to the Court’s Registry) to make a positive disclosure of factual matters relevant to the Recusal Application.

96    Ms Martin submits that it would not be unreasonable to attribute to the putative lay observer an opinion that the reason why I declined to make any positive declaration, when invited to do so, is that it would be embarrassing for me to do so because either the relationship between me and the other judge or the degree of conferral between judges and officers of the Court concerning the Allegations and the Complaint, or both, is somewhat more extensive or significant than has been asserted in the Martin July Affidavit. As to the latter Ms Martin submits that it would not be unreasonable for the putative lay observer to form the view that judicial colleagues in the Court’s Sydney registry, particularly those with a long standing personal association, would be likely to engage in discussion from time to time about the fact that a litigant had raised serious allegations of misconduct against them and, in this context, it would be reasonable for the putative lay observer to infer, insofar as Mr Martin happened to be discussed, that it would certainly not have been in a positive light.

97    In the Martin July Affidavit Ms Martin refers to a document she calls the Barristers Protocol which is a document titled “Amended Protocol for the Bar Associations of Australia to raise any concern about the conduct of Commonwealth Judges” dated August 2020. Ms Martin submits that the Barristers Protocol demonstrates a logical connection between status as a complainant, or associate, and the risk of being subjected to prejudicial treatment by the Court. She says that its purpose is to protect barrister complainants from the risk of retaliatory treatment by the judiciary, it seems because, unlike other complainants, barristers can make a complaint anonymously.

98    Ms Martin contends that any malice or resentment towards Mr Martin is likely to extend to her because, although Mr Martin is not named as a party in the primary proceeding, he is nonetheless centrally involved in the subject matter of the litigation. She says that there is an unavoidable forensic reason not to differentiate between her and Mr Martin as both are alleged on the pleadings to be jointly liable for participation in a civil conspiracy. Ms Martin says that she has also sought the advice and support of Mr Martin as a McKenzie friend at each hearing before me.

Actual bias

99    As is apparent from the summary set out above, Ms Martin’s written submissions do not address the question of actual bias. However, Ms Martin says the Martin July Affidavit is in support of her application seeking that I recuse myself from further hearing or determining the Amended Leave Application on the grounds of apprehension of bias and actual bias (my emphasis).

100    A determination of actual bias requires cogent evidence that 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 Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 134; cited with approval by the High Court in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. In Sun Zhan Qui, North J said (at 135) that proof of actual bias by inference from the facts and circumstances of the case will usually involve an assessment of a series of actions by the decision-maker which, when taken together, form a whole picture leading to the conclusion of pre-judgment.

101    In the Martin July Affidavit Ms Martin says that “other aspects of [my] conduct’” in the course of the leave proceeding “provide a further objective basis for concern about whether [my] decision-making has been inordinately affected by a sense of personal loyalty” to the judge the subject of the Allegations, such as to cause a well-informed lay person and reasonable bystander to doubt whether I am capable of impartially performing my judicial function. Ms Martin then sets out that conduct. In summary it includes that:

(1)    I discouraged her from pressing the Amended Leave Application;

(2)    I interrupted her submissions to ask questions;

(3)    I have not permitted Mr Martin to appear as a McKenzie friend;

(4)    I appeared distracted when Mr Martin was speaking on her behalf;

(5)    I permitted counsel for Mr Hillier to speak for longer than she was permitted to speak;

(6)    I refused her application to stay or adjourn the Amended Leave Application and ordered costs against her on that application; and

(7)    I have repeatedly asked her to summarise her position, among other things.

102    Although she does not say so expressly, I infer that Ms Martin contends that this conduct demonstrates actual bias on my part and that I have prejudged the Amended Leave Application or shown that I have my mind made up against Ms Martin and am not open to persuasion. However, I am not satisfied that Ms Martin has demonstrated, by reference to cogent evidence, that I have prejudged the Amended Leave Application or that I have a mind closed to persuasion. She has not established actual bias on my part. My reasons follow.

103    First, that Ms Martin disagrees with the manner in which I have case managed the leave proceeding, including by asking her questions and that she summarise her position on issues that arose, does not establish that I am not open to persuasion in favour of her or acted with hostility towards her. As the procedural history of the Amended Leave Application set out above shows, the Court has made efforts to accommodate Ms Martin’s availability and provide her with further time to comply with timetabling orders where she was in default of those orders. She has had the opportunity to ventilate her position in relation to the Amended Leave Application and the Amended Reopening Application, in each case both through oral and written submissions, and through written submissions on the Recusal Application.

104    Secondly, it is not the case that I have refused her the ability to have Mr Martin appear as a McKenzie friend. The nature of the assistance that can be given by a McKenzie friend is described at [119] below. Mr Martin sat with Ms Martin and gave her assistance on a number of occasions including at the hearing of the Amended Leave Application.

105    Thirdly, Ms Martin takes issue with my decision on 11 June 2024 to dismiss her application for a stay or adjournment of the Amended Leave Application and submits that it evinces “an inability or unwillingness to take seriously [her] allegations of fraud and malpractice”. That decision was made after hearing from the parties, including Ms Martin. That it was not a decision in Ms Martin’s favour is not sufficient to establish evidence of actual bias.

Apprehended bias

106    Ms Martin’s primary contention, as set out in her submissions, is that I should not be further involved in the leave proceeding because of an apprehension of bias on my part.

107    In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419 Kiefel CJ and Gageler J (as his Honour then was), by reference to the well established test for apprehended bias in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, said at [37]-[39]:

37    The criterion for the determination of an apprehension of bias on the part of a judge was definitively stated in Ebner by reference to previous authority and has often been repeated. The criterion 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”. The “double might” serves to emphasise that the criterion is concerned with “possibility (real and not remote), not probability”.

38    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.

39    Ebner specifically rejected the notion that there exists a 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 such an analysis in order to determine that the criterion is satisfied. The submission by the appellant that this Court should now recognise “incompatibility” between the judicial role and another role previously performed by a judge as a category of “interest” in respect of which an apprehension of bias will be presumed is irreconcilable with Ebner and must be rejected.

(Footnotes omitted.)

108    In Martin v Norton Rose Fulbright Australia (No 2) [2020] FCAFC 42 at [21] a Full Court of this Court (Besanko, Flick and Abraham JJ) observed that the lay observer, among other things, is “(1) taken to be reasonable; (2) does not make snap judgments; (3) knows commonplace things and is neither complacent or unduly sensitive or suspicious; (4) has knowledge of all the circumstances of the case; and (5) is an informed one who will have regard to the fact that a judicial officer’s training, tradition and oath or affirmation, equip the officer with the ability to discard the irrelevant, the immaterial and the prejudicial”.

109    Ms Martin’s central contention is that a reasonable apprehension of bias arises because the judge the subject of the Allegations and the Complaint and I are both currently judges in the Sydney Registry of the Court, we previously worked together as barrister and solicitor respectively and Mr Martin has made the Allegations and the Complaint. The “double might” test established in Ebner requires a logical connection between those factors and the apprehended deviation from deciding the Amended Leave Application on its merits. There is no such logical connection.

110    Ms Martin’s contention ignores the reality that judges, even though they may work in the same registry of the same court, routinely overturn decisions made by their judicial colleagues. The same can be said in relation to the reality that many judges enjoyed past professional association with their colleagues sitting in the same court or in the hierarchy of courts. There is no incompatibility between my role as a judge allocated to determine the Amended Leave Application and the fact that I am located in the same registry of the Court as the judge the subject of the Allegations and the Complaint.

111    Ms Martin deposes at [51] of the Martin July Affidavit that she is “surprised that the Court would consider it appropriate to allocate the hearing of the [Amended Leave Application] … to [me] or any other judge who works alongside” the other judge in the Sydney Registry. This amounts to a submission that no judge in the Sydney Registry of the Court could hear any application or proceeding brought by Ms Martin. To that end, the plurality of the High Court in Ebner (Gleeson CJ, McHugh, Gummow and Hayne JJ) cautioned against the risk of allowing parties effectively to select their own judges by the use of recusal applications based on insubstantial objection, saying at [19]-[20]:

19    Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, 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.

20    This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.

112    Ms Martin has not established a logical connection between the Allegations and the Complaint and an apprehension of bias. It does not follow that merely because of a relationship between judges, either because of historical association or because judges are colleagues in the same registry, that they are aware of issues raised by litigants in particular proceedings including complaints.

113    Finally, as for the Complaint, assuming in Ms Martin’s favour that I was aware of it, it is irrelevant to the questions that arise for resolution on the Amended Leave Application. There is no logical connection between it and an apprehension that I might decide the Amended Leave Application other than on its merits.

114    Ms Martin has not established a basis for apprehending I might decide her Amended Leave Application on any basis other than on its legal and factual merits. She has not articulated a logical connection between the Primary Factual Matters and an apprehended departure from my deciding her Amended Leave Application on its merits. Accordingly, the need to assess the reasonableness of the apprehension from the perspective of a fair-minded lay observer does not arise.

Conclusion

115    Given the conclusions I have reached, the Recusal Application should be dismissed. As neither Mr Hillier nor the NW Parties sought to be heard on that application, I will make no order as to costs in relation to it.

Amended Reopening Application – Prayers 3 – 6

116    By prayers 3-6 of the Amended Reopening Application, Ms Martin seeks the following relief:

3.    The Applicant be permitted to have support and assistance in the hearing of this proceeding from her husband Thomas Martin as McKenzie friend.

4.    Mr R I Whitington KC, Ms Hannah Doyle and the firm Sykes Bidstrup be restrained from further representing the first respondent in the proceedings.

5.    The hearing and determination of Order 4 be referred to the Full Court, or in the alternative, another Judge of the Court.

6.    The Applicant be given leave to further amend the Amended Application for Leave to Appeal dated 25 March 2024. in accordance with the documents annexed to this application.

117    By prayer 3 of the Amended Reopening Application Ms Martin seeks an order that she be permitted to have support and assistance in the “hearing of this proceeding from her husband [Mr Martin] as McKenzie friend”. Mr Hillier neither consents to nor opposes this prayer for relief.

118    There may be a situation where an unrepresented litigant might obtain late representation and then seek to reopen their case, for example, to tender fresh evidence or make further submissions. That is not what Ms Martin seeks to do by prayer 3. She simply wishes to reopen her case so that she can have Mr Martin’s assistance generally in the leave proceeding without setting out what form that would take and how it would assist the resolution of the proceeding in circumstances where the hearing of the Amended Leave Application took place on 11 July 2024 and I am reserved on that application and the Recusal Application.

119    A person in the role of a McKenzie friend does not have a right to appear on behalf of an unrepresented litigant but may sit quietly and take notes and make suggestions to the litigant appearing in person: see McKenzie v McKenzie [1970] 3 All ER 1034.

120    Mr Martin has not been prevented from assisting Ms Martin in the capacity of a “McKenzie” or next friend and does not require the Court’s leave to do so. On most occasions that the Amended Leave Application was before the Court Mr Martin was by Ms Martin’s side providing her with support and assistance, including at the hearing of the Amended Leave Application. In other words, Mr Martin was fulfilling the role of McKenzie friend for Ms Martin. Indeed, that occurred on the hearing of prayers 3 to 6 of the Amended Reopening Application.

121    It is not in the interests of justice to permit the reopening of the Amended Leave Application (or the Recusal Application) to allow Ms Martin to have Mr Martin’s assistance. Ms Martin has not demonstrated how that might change the approach she has taken in or the outcome of those applications and, in any event, there would be no utility in the order she seeks given that practically she has had Mr Martin’s assistance in the leave proceeding.

122    By prayers 4 and 5 of the Amended Reopening Application Ms Martin respectively seeks orders that counsel and solicitors briefed for Mr Hillier be restrained from further representing him in the proceedings and that the hearing and determination of that prayer for relief be referred to a Full Court or another Judge of this Court.

123    In her written submissions Ms Martin refers to her attempts to ventilate her assertion that there had been a default in discovery in the primary proceeding and, more particularly, her contention that Mr Hillier’s legal representatives made false and misleading submissions to the Court on the hearing of the Amended Leave Application.

124    Ms Martin submits that the alleged misconduct of Mr Hillier and his legal representatives about which she makes complaint “goes directly to the veracity and legality of” the proceedings in which she has been involved. She says that the alleged misconduct is yet to be considered or scrutinised on a proper basis, that Mr Hillier has not yet filed any evidence in response to her substantiated allegations and the Court has not yet made any inquiry in relation to the allegations.

125    Ms Martin submits that she does not consider it appropriate for me to continue to preside over this proceeding and that it is improper for Mr Hillier’s legal representatives to continue to act or appear for him, in light of the allegations she has made. She says that “[i]t does not seem appropriate to [her] for these issues to be the subject of hearing before Markovic J or, in all the circumstances, otherwise in the Federal Court and so” she intends to apply to the High Court for Constitutional writs as soon as possible.

126    The question of the alleged conduct of Mr Hillier’s legal representatives is raised by Ms Martin in her amended application for leave to appeal annexed to the amended leave application at [25] and [32] and the further amended draft notice of appeal at [25] (see [132] below).

127    A number of observations can be made about the relief sought in prayers 4 and 5 of the Amended Reopening Application and the related amendments in the amended application for leave to appeal and further amended draft notice of appeal.

128    First, the proposed application is of little or no utility given that the hearing of the Amended Leave Application took place on 11 July 2024 and the Recusal Application, in relation to which Mr Hillier takes no position, is to be determined on the papers without the need for an oral hearing.

129    Secondly, the alleged misstatements were, it seems, made both in the leave proceeding and in the primary proceeding on 18 October 2023. That Mr Hillier has not responded to the allegations in the form they have been raised is not surprising. They are not relevant to the leave proceeding which is an application for leave to appeal from the March Orders by which the primary judge dismissed the Primary Judge Recusal Application and allowed the Iniquity Application. As set out below, the Court must consider whether the decision in Hillier (No 19) is attended by sufficient doubt to warrant its reconsideration by a Full Court of this Court and whether substantial justice would result supposing the decision to be wrong. It is difficult to see how alleged misstatements made by Mr Hillier’s legal representatives in the primary proceeding on 18 October 2023 (as referred to in the amended application for leave to appeal and further amended draft notice of appeal) could have a bearing on those questions.

130    Thirdly, should Ms Martin make such allegations in a different forum then Mr Hillier can determine the steps he will take in relation to them.

131    Fourthly, and in any event, Ms Martin submits that her allegations of misconduct will not be properly addressed by this Court and she intends to pursue the matter elsewhere. In those circumstances it would not be a proper use of judicial resources or in accordance with s 37M and s 37N of the Federal Court Act to delay the final determination of the leave proceeding and other extant applications by allowing Ms Martin to proceed with her prayers for relief in 4 and 5 of the Amended Reopening Application.

132    By prayer 6 Ms Martin seeks leave to reopen to file a further amended application for leave to appeal in the form annexed to the Amended Reopening Application which includes the following additional grounds:

22.    The learned judge erred by failing to consider, adequately or at all, the first respondent’s:

(a)    deliberate concealment from the appellant and the Court of his other District Court proceedings Hillier v Craig and William Buck (Nordburger Proceedings) despite this issue being brought to the learned judge’s attention in Annexure FME-3 to Fiona Errington’s Ninth Affidavit as a matter of direct relevance to the material issues in dispute in the current proceedings;

(b)    failure to discover as a directly relevant document, the Summons and Statement of Claim in those Nordburger Proceedings filed 13 March 2019 (Summons and Statement of Claim), in either his List of Documents of 28 February 2021, or his Supplementary List of Documents dated 6 April 2023;

(c)    contravention of the order for standard discovery made by Charlesworth J on 10 December 2020 as a result of 22(b) above: and

(d)    ongoing breach of the Rules of Court by not filing a Further Supplementary List of Documents to discover the client files of the first respondent’s former lawyers Randle Taylor, advance any privilege claim, or produce documents from those files.

23.    The learned judge failed to consider, adequately or at all, the adverse impact upon the credibility of the first respondent’s affirmed affidavit evidence read in support of the charge of iniquity, as a result of the first respondent’s admissions against interest in his Summons and Statement of Claim, being a court document which:

(a)    is contradictory of the first respondent’s claim;

(b)    is wholly corroborative of the appellant’s pleaded defence, and

(c)    does not mention or refer to any so-called ‘Nordburger Joint Venture’ or ‘Nordburger Joint Venture Trust’ despite the relevant proceedings having been brought against Mr Andrew John Craig. in the context of concurrent litigation against the so called ‘Craig Interests’.

24.    The learned judge failed to consider, adequately or at all, the adverse impact upon the credibility of the first respondent’s affirmed affidavit evidence read in support of the charge of iniquity, of the first respondent’s concealment of the Nordburger Proceedings by making false declarations in his affidavits verifying the adequacy of discovery in his List of Documents of 28 February 2021, and his Supplementary List of Documents dated 6 April 2023.

25.    The learned judge erred in accepting the false and misleading submissions of senior counsel Mr Whitington KC at the hearing on 18 October 2023 on the subject of the Nordburger Proceedings, the Summons and Statement of Claim, and the first respondent’s default of discovery obligations, which submissions were unsupported by evidence of any kind, logically incoherent, and demonstrably false.

Substantial injustice would result if leave to appeal were refused, supposing the decision to be wrong, because:

…

32.    The applicant has been unfairly prejudiced in her defence of the iniquity application by the learned judge accepting the false and misleading submissions of the first respondent’s senior counsel, Mr Whitington KC.

    (underlining omitted.)

133    Proposed grounds [22]-[25] set out in the preceding paragraph are repeated in the amended draft notice of appeal annexed to the further amended application.

134    These proposed amended grounds of appeal go to the question of the adequacy of, and alleged default in, discovery by Mr Hillier in the primary proceeding. In her submissions, Ms Martin sets out evidence filed by the NW Parties on the Iniquity Application and makes a number of submissions about alleged defects in Mr Hillier’s discovery in the primary proceeding. Ms Martin then refers to the hearing before the primary judge on 18 October 2023, which she did not attend, at which she alleges Mr Hillier’s legal representatives made false and misleading submissions which were accepted by the primary judge. She did not become aware of what occurred on 18 October 2023 until she read the transcript of that hearing in April 2024. The ex tempore reasons for judgment given on 18 October 2023 were made available in May 2024: see Hillier v Martin (No 20) [2023] FCA 1686.

135    I do not propose to permit the filing of the further amended application. My reasons follow.

136    Ms Martin has not explained, either in evidence or submissions, why it is that these additional grounds could not have been raised in her Amended Leave Application. It is not apparent to me why they could not have been raised earlier, particularly as they rely on historical matters including alleged contravention of orders in the primary proceeding and earlier proceedings in the District Court.

137    The proposed amendments concern the adequacy of discovery in the primary proceeding and the orders made in the primary proceeding on 18 October 2023 which were as follows:

THE COURT NOTES:

A.    The first respondent has lodged an affidavit at 8.19am this day which was accepted for filing at 8.26am this day in which she:

a.    Requested today’s hearing be vacated; and

b.    Contended I should recuse myself.

B.    The first respondent has not appeared today.

THE COURT ORDERS THAT:

1.    The first respondent’s request that today’s hearing be vacated is refused.

2.    The first respondent’s contention that I should recuse myself is declined.

3.    The hearing of the interlocutory application dated 15 August 2023 is adjourned part-heard to 10.30am (ACDT) on Wednesday 25 October 2023.

138    In Hillier (No 20) the primary judge said at [16]-[17] and [22]-[26]:

16    The first respondent deposes in her affidavit as to her inability to attend today due to her need to attend to her caring responsibilities for her two young sons, the oldest of whom attends school in the city. Whereas I am acutely aware of family obligations that may be imposed upon a party, including any health issues those children may have, this matter was listed for hearing today by orders made on 12 September 2023, some five weeks ago. Notwithstanding any family obligations, that was more than sufficient time for alternative arrangements to be made.

17    A further reason given by the first respondent is cited as being her lack of skill and experience in both the law generally and courtroom advocacy. That may be so, but the first respondent is in no different position to many of the litigants that appear before this Court.

…

22    During the course of today’s hearing the first respondent emailed submissions to the Court.

23    That is contrary to the Court’s orders dated 12 September 2023 giving the first and second respondents until 2 October 2023 to file and serve an outline of submissions and any affidavits in reply. Nothing was received. The first respondent is in clear breach of the Court’s orders and I decline to consider the submissions.

24    The non-appearance at today’s hearing of the first respondent in circumstances where an application was made by the first respondent for the interlocutory application to be heard by a judge of the Court demonstrates not only gross discourtesy to the Court, but on the face of it what can only be described as a clear breach of the first respondent’s obligations under s 37N of the Act.

25    I note that the first respondent’s conduct may well have cost implications depending on the outcome of this interlocutory application, not only in relation to this interlocutory application, but any costs thrown away as a result of the need to adjourn the trial.

26    I of course have no fixed view on those issues at this point in time and I merely note it.

139    Ms Martin has not sought leave to appeal from the orders made on 18 October 2023. The leave proceeding does not concern them, it is concerned with the March Orders and the reasons of the Court in Hillier (No 19).

140    Relatedly, there must be finality in litigation. In Hawthorn Glen Pty Ltd v Aconex Pty Ltd (No 1) [2007] FCA 2010 Goldberg J said at [48]:

“… The interests of justice require that commercial litigation of the type in this proceeding should be conducted expeditiously and that parties should only be able, after judgment has been reserved, to re-visit tactical decisions they have made in exceptional circumstances where injustice might otherwise result. No such exceptional circumstances exist in the present case. There needs to be a finality to the process of litigation …”

141    Ms Martin has had ample opportunity to set out the grounds on which she seeks leave to appeal and her draft grounds of appeal prior to the hearing of the Amended Leave Application. It is not in accordance with s 37M of the Federal Court Act and the resolution of disputes as quickly, inexpensively and efficiently as possible to permit a litigant to amend their application or pleading after a case has been heard and judgment has been reserved, particularly in circumstances where no good reason or explanation is given to do so. As Perry J observed in Fisk v Chief of the Defence Force [2017] FCA 1489 at [48], “it is generally not conformable with [s 37M of the Federal Court Act] principles to grant leave to reopen after judgment has been reserved to raise an issue that clearly could have been raised at trial” where no adequate reason has been given for the failure to do so.

142    It follows from my conclusion in relation to prayers 1 and 2 of the Amended Reopening Application and the matters set out above that the Amended Reopening Application should be dismissed. Ms Martin should pay Mr Hillier’s costs of that application.

Amended Leave Application

143    That then brings me to the Amended Leave Application.

144    The Amended Leave Application is in two parts. First, it sets out those grounds on which Ms Martin relies to establish that the primary judge’s decision in Hillier (No 19) is “attended by sufficient doubt” as follows:

1.    The learned judge erred in failing to recuse himself from presiding further in the proceedings, at paragraph [138] of the Judgment.

2.    The learned judge erred in finding that the applicant did not satisfy the first stage of the test for apprehended bias, because the learned judge’s personal knowledge and observations of matters in dispute in the proceedings, constitute “material which might lead the judge to decide the case other than on its legal and factual merits”.

3.    The learned judge erred in failing to consider the appellant’s affidavit filed 27 November 2023, and the numerous annexures of documents from the District Court proceedings, and in so doing, failed to take account of the overlapping subject matter with the current substantive proceedings, in determining whether to recuse himself from presiding further in the matter.

4.    The learned judge failed to faithfully address, and take proper account of, the appellant’s submission that, by virtue of presiding over the District Court proceedings, his Honour has personal knowledge of matters in dispute in the current substantive proceedings, by erroneously:

(a)    mischaracterising the submission at paragraph [123];

(b)    understating the extent of his Honour’s involvement in the District Court proceedings at paragraphs [62] and [66]; and

(c)    downplaying the relevance of the District Court proceedings to the current Federal Court proceedings, at paragraph [124] to [127].

5.    The learned judge erred in rejecting, at paragraph [114], the appellant’s submission that the “District Court proceedings are germane to the current claim”, by failing to consider that facts directly arising from the District Court proceedings are expressly alleged in the pleaded case of the appellant and first respondent in the substantive proceedings: see Fifth Amended Statement of Claim (5ASOC) at paragraphs [45F.2] – [45F.9], [72Q] and [72M], and Defence to Third Amended Statement of Claim at paragraphs [3.3], [33], [34.8] and [91] at Annexure B: and are also expressly alleged in the affidavit evidence upon which the first respondent relied in support of his interlocutory application of 15 August 2023, see affidavit of James Hillier dated 15 August 2023 at paragraphs [38] to [51]; and affidavit of James Hiller dated 11 November 2021 at paragraphs [507] to [521] and [542] to [550].

6.    The learned judge erred in his characterisation of the events and circumstances which occurred in his Honour’s presence in the District Court proceedings as only having limited relevance to the current proceedings, and erred in finding that:

(a)    the “allegation in these proceedings is not the manner in which the litigation was conducted but the fact it was conducted” and “there is no criticism in the pleadings of how the District Court proceedings were defended”, at paragraph [127]; and

(b)    the only issue for determination in the current proceedings is whether “unnecessary legal expenses” were incurred, at paragraph [124];

whereas the first respondent pleads at paragraphs [45F.4] and [45F.9] of the 5ASOC that the manner in which the litigation was conducted was part of the “Plan”, and pleads at paragraph [72M] and [72Q] of the 5ASOC that the “Craig Litigation Conduct”, being the matters pleaded in paragraphs [45F.2] to [45F.7] constitutes part of the “Conspiracy”.

7.    The learned judge erred by mis-stating the facts pertinent to his involvement as presiding judge in the District Court proceedings on the question of recusal, in that:

(a)    The learned judge described the recusal application at paragraph [62] as being based solely on an interlocutory decision be delivered in the District Court proceedings, whereas his Honour was the allocated trial judge and presided at a directions hearing on 20 September 2018, hearing for argument on 29 October 2018, hearing for argument on costs on 20 November 2018, hearing for argument on 4 December 2018, a directions hearing on 25 March 2019, and a directions hearing on 2 April 2019.

(b)    The learned judge stated at paragraph [66] that “the second interlocutory application was stood over. I do not know if it was ever argued but if it was, it was not before me” and stated at paragraph [110] that the “only contested hearing I considered was the single interlocutory argument the subject of the decision”, whereas, in fact, it was the learned judge who heard and determined the “second interlocutory application” as is evident from the court record which was in evidence before his Honour: Annexure VMMX-1. Victoria Martin Affidavit of 22 November 2023, p 30.

(c)    The learned judge stated at paragraph [114] of the Judgment that he “made no factual findings”, whereas at paragraph [48] of his Honour’s reasons for decision in Craig & Ors v Hillier & Ors [2018] SADC 114, his Honour states “I find the litigation was reasonably anticipated at the time the William Buck brief was prepared”, which finding of fact directly contradicts his Honour’s finding at iniquity at paragraph [203] of the Judgment;

8.    The learned judge erred by omitting material facts relating to the District Court proceedings from his reasoning on the question of recusal:

(a)    The learned judge states at paragraph [66] that the “second of the interlocutory applications sought leave to file an amended pleading against a third party”, whereas the third party in question was Mr Andrew Craig, and his Honour approved the amendments to allow the first respondent to allege misleading and deceptive conduct against Craig;

(b)    The learned judge states at paragraph [90] that “any allegations of misconduct on the part of Andrew Craig were not the subject of findings by me” whereas his Honour struck out several paragraphs of the plaintiffs’ statement of claim in the District Court proceedings based on the first respondent’s allegation of misconduct by Mr Craig;

(c)    The learned judge failed to refer to the affidavit evidence of the first respondent having been read at the voir dire hearing before him, as referred to in his reasons for decision in Craig & Ors v Hiller & Ors [2018] SADC 114 on p2 at 6;

(d)    The learned judge stated that his judgment in the District Court proceedings did not require findings of fact, did not involve findings as to the truth or otherwise of the affidavit evidence, and did not involve cross-examination of witnesses, but omitted to state that this was because the affidavit evidence of the first respondent and of his solicitor Mr Borecki, and the submissions advanced by the first respondent’s counsel Ms Walker, concurred with and did not challenge the affidavit evidence of Mr Williams about the 29 April 2016 meeting, the Deed Poll and the William Buck brief.

9.    The learned judge erred in his determination of evidentiary issues by placing inordinate weight on the possibility that considering particular issues might necessitate his recusal as trial judge:

(a)    The learned judge declined to inspect the documents, in part because of the “risk to a trial judge in doing so”: [180]-[182]

(b)    The learned judge, without reasons, gave the allegations of blackmail “no weight for the purposes of the application” despite the issue taking up much of the hearing.

(c)    The learned judge did not consider any evidence countervailing the charge of iniquity where it would require an assessment of the first respondent’s credibility.

(d)    The learned judge omitted the “Craig Litigation Conduct” from his Honour’s identification of the topics raised by the first respondent’s application, at paragraph [185];

10.    The learned judge erred in finding that the applicant had provided “no evidence of any type” to support an allegation of actual bias, because the learned judge being “anxious to sit” as a trial judge in the proceedings, and “taking pains to arrange that he … [will do so” is a circumstance from which “questions of actual bias may arise”: QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 (17 May 2023), per Jagot J at [323], citing Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 348 [21].

11.    The learned judge erred at paragraphs [42]-[44] in mischaracterising, and failing to take proper account of, the basis for the appellant’s defence of the substantive proceedings by summarising the first respondent’s case in great detail over 42 numbered paragraphs whilst only superficially summarising the appellant’s case in 1 paragraph and omitting important details, notably including the Hillier PIAH trust.

12.    The learned judge erred in finding “colour to the charge” of any iniquity alleged, including at paragraphs [201], [203], [210], [219], [222] and [225].

13.    The learned judge failed to correctly apply the relevant test, and misdirected himself, in assessing whether there is “colour to the charge” of iniquity, by failing to evaluate “whether there is sufficient probability of its truth to make it right to disallow the privilege of professional communications” (per Gibbs CJ in Attorney-General (NT) v Kearney (1985) 158 CLR 500 at 516), by considering the credibility of the charge in the light of any contradictory evidence: Judgment paragraphs [186], [194], [201], and [210]. Cf. [229].

14.    The learned judge erred in proceeding with analysis of the first respondent’s case at paragraph [188] on the erroneous basis that “inception and establishment of the Joint Venture” occurred during October and November 2014, whereas the first respondent’s case is that the ‘joint venture’ was formed in December 2012.

15.    The learned judge erred at paragraphs [191] in finding that “there is at least a prima facie case that there existed between the three parties a joint venture”, and in finding that the appellant’s denial of the joint venture “has no greater force than the contention by Mr Hillier that there was a joint venture” by failing to consider the relative probability of their contentions by reference to:

(a)    corroboration of the appellant’s position by contemporaneous business records;

(b)    the paucity of evidence for the undocumented joint venture, including the lack of any corroborating testimony from Mr Andrew Craig; and

(c)    the admissions of the first respondent in his District Court proceedings Hillier v Craig and William Buck: Annexure FME-3 to Fiona Errington’s Ninth Affidavit.

16.    The learned judge erred in declining at [181]-[182] to inspect the documents sought for production in order to differentiate between those privileged communications which might reasonably be connected to some alleged iniquity, and those which are not so connected.

17.    The learned judge erred in finding at paragraphs [220]-[225] that there was ‘“colour to the charge of iniquity’ in relation to the first respondent’s allegations concerning remuneration, at paragraph [222], and loans at paragraph [225], in the absence of any evidence that the conduct in question was ever the subject of any communication between the appellant and her lawyers.

18.    The learned judge erred at paragraphs [220]-[225] by relying, and placing undue weight, on the findings of Charlesworth J in earlier interlocutory judgments concerning separate issues.

19.    The learned judge erred at paragraph [211] in mis-stating the effect of the Deed Poll document by proceeding on the assumption that the first respondent “at least initially” had a “majority interest” in the Nordburger business.

20.    The learned judge erred in excluding, or having insufficient regard to, affidavit evidence filed by the applicant on 17 October 2023, 25 October 2023, and written submissions provided by the applicant on 18 October 2023, in circumstances where the applicant had been significantly prejudiced by the lack of representation due to the freezing order dated 22 August 2022.

21.    The learned judge erred by failing to make orders on 3 August 2023 that would have facilitated the applicant being legally represented, due to his Honour’s reliance on erroneous submissions of the first respondent’s solicitor Mr Sykes Bidstrup, without ever seeking any response from the applicant.

145    Secondly, the Amended Leave Application sets out the following matters on which Ms Martin relies to establish that “[s]ubstantial justice would result if leave to appeal were refused, supposing the decision to be wrong”:

22.    The learned judge continuing to preside over the substantive proceedings, despite reasonable apprehension of bias, breaches the rules of natural justice, and constitutes jurisdictional error.

23.    The learned judge’s errors include errors of legal principle and are not confined to issues of fact or discretionary aspects of practice and procedure.

24.    The applicant’s substantive common law right of legal professional privilege over her communications with her lawyers will be destroyed, without the applicant having had the opportunity to challenge that outcome on appeal.

25.    The applicant’s defence at trial will be unreasonably impaired by disclosure of sensitive information relating to the applicant’s intended strategy at trial, because the 7000 documents subject to production include communications with her lawyers, both:

a.    prior to the commencement of proceedings SAD113/2020, relating to the events which are the primary subject of those proceedings; and

b.    subsequent to the commencement of the proceedings SAD113/2020, relating to the applicant’s defence of those proceedings, including communications with counsel.

26.    The production of 7000 privileged documents to the first respondent will unnecessarily further protract and complicate proceedings which have been before the Court since 11 August 2020, which are already listed for a five week trial in September/October this year, and which have had the trial dates vacated several times already.

27.    The applicant has been unfairly prejudiced in her defence of the proceedings generally and the iniquity application in particular, as a result of having been deprived of legal representation, due to the operation of the freezing order made on 22 August 2022.

146    The Amended Leave Application annexes an amended draft notice of appeal which repeats as grounds of appeal [1]-[21] of the Amended Leave Application.

147    Ms Martin relies on her affidavits affirmed on 22 March 2024, 25 March 2024, 4 June 2024, 11 June 2024 and 11 July 2024 in support of the Amended Leave Application. Ms Martin also seeks to rely on her affidavits affirmed on 18 October 2023, 25 October 2023, 22 November 2023, 27 November 2023, 8 December 2023, 7 February 2024 and 9 July 2024 filed in the primary proceeding. However, as Ms Martin did not appear at the hearing of the Iniquity Application and the Primary Judge Recusal Application, her affidavits affirmed on 18 October 2023 and 25 October 2023 were not read in support of those applications. Ms Martin raised as a ground on which she seeks leave to appeal the primary judge’s failure to receive those affidavits into evidence despite her non-attendance. I address that ground below.

148    Ms Martin did not file written submissions in support of the Amended Leave Application in accordance with the Court’s orders. However, she was granted leave to rely on her submissions set out in her email sent to the Court on the morning of the hearing and on submissions in reply filed after the hearing.

149    Mr Hillier relied on his ninth affidavit sworn on 15 August 2023, his submissions relied on before the primary judge filed on 25 August 2023, 5 September 2023 and 20 December 2023, the 5ASOC and a statement of particulars relating to it, the affidavit of Gene Sykes Bidstrup sworn on 9 April 2024 and submissions dated 14 June 2024 both filed in the leave proceeding.

150    The principles which apply to the consideration of an application for leave to appeal are well established. The Court will grant leave to appeal where a decision is attended by sufficient doubt to warrant it being reconsidered by a Full Court and substantial injustice would result to the applicant if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. The onus is on the applicant to satisfy the Court that leave to appeal should be granted: see GPV18 v Minister for Home Affairs [2020] FCA 393 at [32].

151    I turn to consider the grounds relied on by Ms Martin in the Amended Leave Application.

The Primary Judge Recusal Application

152    Grounds 1 to 10 of the Amended Leave Application concern the Primary Judge Recusal Application. In summary by those grounds Ms Martin contends that the primary judge erred in declining to recuse himself and variously failed to consider, mischaracterised or downplayed relevant matters and submissions made by Ms Martin.

Ms Martin’s submissions

153    Ms Martin submits that the relevant context that gives rise to a reasonable apprehension of bias is that the primary judge presided as a judge of the District Court of South Australia in proceedings which ran from 2017 until 2020 which are now the subject matter of the primary proceeding in which his Honour was docket judge and in which he made his decision which is now the subject of the Amended Leave Application.

154    Ms Martin submits that the primary proceeding alleges a civil conspiracy to injure by unlawful means in accordance with an agreement between Ms Martin, Mr Martin and her former solicitor who had been acting as her solicitor on the record in the primary proceeding until being joined as a party in September 2022.

155    Ms Martin contends that the critical matter about the primary proceeding, which removes the ability of O’Sullivan J to preside without reasonable apprehension of bias, is that the 5ASOC pleads that the District Court proceeding, over which the primary judge presided before his appointment to this Court, is alleged to form part of the civil conspiracy. By way of explanation Ms Martin says that the events that transpired in the District Court while the primary judge was presiding as a judge in that court are the subject of matters in dispute in the primary proceeding.

156    Ms Martin submits that Mr Hillier was a party to the District Court proceeding while she was a non-party who was invited to participate in that proceeding. The fourth respondent in the primary proceeding, Mr Williams, was the lawyer acting for Ms Martin in the District Court proceeding. Mr Martin interacted with Ms Martin, Mr Hillier and Mr Williams in relation to that proceeding and both Mr Hillier and Ms Martin were represented by solicitors and counsel.

157    Ms Martin says that what actually occurred in the District Court proceeding is, in a sense, not relevant to the bias which she contends now arises for the primary judge as a consequence of having witnessed what occurred.

158    Ms Martin submits that the subject matter of the District Court proceeding is germane to the primary proceeding. She notes that Mr Hillier swore an affidavit which was read in the District Court proceeding in which he described the meeting which took place on 29 April 2016 which, he now claims in the primary proceeding, to have been the commencement of the civil conspiracy to injure him by unlawful means. She contends that Mr Williams also swore an affidavit in the District Court proceeding in which he gave a detailed account of what occurred at that meeting and exhibited to his affidavit the deed poll with which Mr Hillier has joined issue and on which he relies as another aspect of the civil conspiracy he alleges in the primary proceeding. Ms Martin submits that in the District Court proceeding Mr Hillier did not dispute or protest about the version of events the subject of Mr Williams’ evidence and Mr Hillier’s counsel, in making submissions on behalf of Mr Hillier, relied upon the deed poll. Ms Martin says that the primary judge presided at the hearing at which the affidavits described above were read and at which Mr Hillier made his argument in reliance upon the deed poll.

159    Ms Martin submits that there are numerous other matters in the District Court proceeding which cut across the primary proceeding which are identified in the draft grounds of appeal and for which evidence in support is found in her affidavit affirmed on 27 November 2023. Ms Martin submits that the difficulty for the primary judge appears to have been an unwillingness to allow his memory of what occurred to be revived by having regard to the material put before him which she says demonstrates that his involvement in the District Court proceeding was far more extensive and intensive than set out in Hillier (No 19).

160    Ms Martin contends that the reluctance to consider the relevant evidence of what occurred in the District Court proceeding extends to her affidavit of 27 November 2023 which was filed in support of the Primary Judge Recusal Application but which the primary judge failed to mention in his Honour’s reasons or to have any regard to in deciding the application.

161    Ms Martin submits that in the primary proceeding Mr Hillier has put in issue the manner in which his legal representatives conducted the case on his behalf and has also put in issue his state of mind in relation to what occurred in the proceeding which must include what happened before the primary judge and Ms Martin’s conduct and state of mind and that of her husband, solicitor and barrister who all played a part in what occurred in the District Court in the presence of the primary judge. Ms Martin submits that Mr Hillier’s pleading required findings of fact to be made by the primary judge in relation to events and circumstances and matters which he personally observed at the time they were occurring.

162    Ms Martin says, put simply, by virtue of having observed what occurred in the District Court proceeding first hand, the primary judge is a witness in relation to matters which are in dispute in the primary proceeding. Ms Martin submits that a judge who has been an eye witness to an alleged crime or an alleged tort could not later preside over the proceeding relating to those very events. She says that personal knowledge of, or involvement with, the subject matter of a legal proceeding is an automatically disqualifying factor for the exercise of judicial power because it is impossible for a judge with personal knowledge of the events which are the subject of proceedings to be considered to be impartial. Ms Martin submits that unlike any other grounds of apprehended bias, this characteristic of personal knowledge or involvement in the subject matter of the dispute does not admit of discretion or matters of degree. Ms Martin says this is because of the fundamental requirement that the Court must reach its decision based only on the evidence that has been received by it in the course of the proceeding.

163    Ms Martin submits that the fact that it was this issue in play with respect to the primary judge’s apprehended partiality also has the result that it is not relevant whether his Honour had any independent recollection of what occurred in the District Court proceeding. Ms Martin says that the question of independent recollection might very well be relevant in another type of reasonable apprehension of bias where the question is the judge’s ability to bring an impartial mind but that this question is removed from the case at hand. She contends that in this case it was apparent that, as he heard more, the primary judge remembered more about the District Court proceeding, a state which could be expected to continue.

164    Ms Martin submits that difficulties in finding another judge who could hear this longstanding proceeding appeared to have weighed upon the primary judge’s mind who she says attempted to avoid engaging with aspects of the case that would lead to recusal. Ms Martin contends that resulted in the primary judge declining to evaluate to any extent the credibility of Mr Hillier’s allegation of iniquity which was comprehensively and persuasively contradicted by the evidence presented by the NW Parties.

Should leave to appeal be granted?

165    Ground 1 of the Amended Leave Application is a general unparticularised assertion that the primary judge erred in failing to recuse himself. No particular error is alleged or exposed.

166    By ground 2 Ms Martin again makes an unparticularised assertion of error on the part of the primary judge. There is no explanation of how the primary judge is said to have erred in his finding that Ms Martin did not satisfy the first stage of the test for apprehended bias. Framed as it, this ground cannot succeed in exposing any error on the part of the primary judge.

167    Ground 3 alleges that the primary judge erred in not considering Ms Martin’s affidavit affirmed on 27 November 2023 in determining the Primary Judge Recusal Application and that, in doing so, his Honour failed to take into account the overlapping subject matter of the District Court proceeding and the primary proceeding. At [80] of Hillier (No 19) his Honour set out the affidavits which Ms Martin referred to in the Primary Judge Recusal Application. They were Ms Martin’s affidavits affirmed on 17 October 2023, 25 October 2023 and 22 November 2023. The primary judge summarised the content of those affidavits at [81]-[98] of Hillier (No 19). It is apparent that Ms Martin’s 27 November 2023 affidavit was not before the primary judge on the Primary Judge Recusal Application. That is hardly surprising. That affidavit was not referred to in the Primary Judge Recusal Application and, as Ms Martin did not appear at the hearing of the Primary Judge Recusal Application, it was not read into evidence. In those circumstances there can be no error in the primary judge having failed to have regard to Ms Martin’s 27 November 2023 affidavit.

168    Grounds 4, 7 and 8 of the Amended Leave Application seem to take issue with the primary judge’s findings about his involvement in the District Court proceeding. On reviewing the primary judge’s reasons, I do not accept that the primary judge mischaracterised, misunderstood or downplayed the submissions made by Ms Martin about, nor the importance or relevance of, the District Court proceeding and any purported effect they may have had on his Honour’s impartiality as alleged.

169    By ground 7 Ms Martin also contends that the primary judge erred by misstating the facts relevant to his involvement in the District Court proceeding. This ground seems to amount to a contention that the primary judge either underplayed his role in the District Court proceeding or was wrong in his recollection. However, as Mr Hillier submits, Ms Martin is eliding two different proceedings: the District Court proceeding and a second proceeding commenced by Mr Hillier in the District Court against Mr Craig as defendant. The latter proceeding was commenced on the eve of a mediation scheduled in the District Court proceeding. It was resolved at that mediation together with the District Court proceeding and never came before the primary judge when a judge of that court.

170    By grounds 5 and 6 of the Amended Leave Application Ms Martin contends that the primary judge erred in rejecting her submission that the District Court proceeding was “germane to the current claim” and by characterising the events and circumstances which took place in his presence during the District Court proceeding as only having “limited relevance” to the primary proceeding. These grounds refer in particular to Hillier (No 19) at [114] and [127] where the primary judge said:

[114]    Next, Ms Martin submits that Mr Hillier has performed an “about-face” in relation to the factual matters upon which the substance of his claim is underpinned. Again, that may be or may not be the case but as I made no factual findings it is of no moment. Further, contrary to Ms Martin’s submissions, I do not accept that the District Court proceedings are germane to the current claim. One only has to consider the nature of the claim brought by Mr Hillier against Ms Martin, Operations and the NW Parties in this matter to understand that it is far removed from the loan recovery proceedings brought by Mr Craig’s parents.

And:

[127]    I do not accept that submission. The allegation in these proceedings is not the manner in which the litigation was conducted but the fact it was conducted and whether that was as a result of the events of the 29 April 2016 meeting and the Deed Poll. In particular, there is no criticism in the pleadings of how the District Court proceedings were defended but rather the fact that Mr Hillier considered he had no option but to defend them because of the Deed Poll.

171    Grounds 5 and 6 of the Amended Leave Application focus only on certain aspects of the primary judge’s findings. The primary judge summarised the 5ASOC at [40]-[42] of Hillier (No 19) in some detail, including with specific reference to the District Court proceeding at [42(25)]-[42(27)], as follows:

40    The primary dispute, as between Mr Hillier, Ms Martin and Operations concerns the ownership of a hamburger restaurant business trading as Nordburger (the Nordburger business). It is common ground that the Nordburger business is presently conducted, and its assets are otherwise held, by a number of companies that together may be referred to as the Nordburger group. Within that structure, revenue from the hamburger restaurants is or has been derived by various trading entities each of which conducts the business of a hamburger restaurant. Certain expenses of the trading entities (including wages) are borne by a non-trading entity, Nordburger Pty Ltd. Ms Martin is a Director of the trading entities and Nordburger and is described in business records as having the title “Managing Director”.

41    As identified below, on any party’s case, Operations holds the shares pursuant to a trust known as the Nordburger Holdings Trust (NH Trust) and not for its own benefit or the benefit of its shareholder(s).

42    Mr Hillier pleads that:

…

(25)    Robert Craig instituted District Court of South Australia proceedings (Action Number 423 of 2017) (District Court proceedings) naming Mr Hillier and other entities (not Ms Martin) as defendants in relation to the repayment of monies invested in The Store to Mr Craig’s parents and an associated company: 5ASOC, [45F.3].

(26)    Mr Hillier defended the District Court proceedings on the basis of instructions, advice and material supplied by Mr Martin and Mr Williams, including the William Buck Brief: 5ASOC, [45F.4].

(27)    The District Court proceedings were resolved at a mediation but at unnecessary legal expense totalling approximately $420,789 (Craig litigation conduct): 5ASOC, [45F.6]-45F.9].

172    At [114] of Hillier (No 19) his Honour put the District Court proceeding in context vis-à-vis the primary proceeding, noting that the latter was far removed from the former or, as Mr Hillier submits, having regard to the case he pleads in the 5ASOC, the District Court proceeding plays a minor role. There is no discernible error in the primary judge’s rejection of Ms Martin’s submissions concerning the importance or centrality of the District Court proceeding to the primary proceeding.

173    Grounds 4 to 8 of Ms Martin’s Amended Leave Application do not identify any arguable error in the primary judge’s reasons.

174    Similarly ground 9 of the Amended Leave Application does not identify any error, let alone cast sufficient doubt on his Honour’s reasons to merit their reconsideration by a Full Court.

175    More particularly, ground 9 contends that the primary judge “erred in his determination of evidentiary issues” because to do so may have necessitated his recusal. Ms Martin contends that this was manifested in four ways by the primary judge in that his Honour:

(1)    declined to inspect the documents at least in part because there was a “risk to a trial judge in doing so”. That ground misapprehends what in fact occurred before the primary judge in the primary proceeding. It was not the case that the primary judge declined to inspect the documents. Rather, as the challenge to the claim for legal professional privilege was based on a question of principle i.e. iniquity, the active parties in that application (Mr Hillier and the NW Parties) did not contend that it was necessary for the primary judge to inspect them: Hillier (No 19) at [11];

(2)    gave the allegation of blackmail no weight for the purposes of the Iniquity Application. As Mr Hillier submits, it was not necessary to make any findings in relation to his contention that he was subject to blackmail in order to establish “colour to the charge” of iniquity;

(3)    did not consider any evidence countervailing the charge of iniquity where it would require an assessment of Mr Hillier’s credibility. However, neither Ms Martin nor the NW Parties relied on any evidence in response to Mr Hillier’s application. Thus there was no need to make any such findings; and

(4)    omitted the Craig Litigation conduct (as referred to in the 5ASOC) from identification of the topics raised by Mr Hillier in the Iniquity Application as set out at [185] of Hillier (No 19). However, at [185] of Hillier (No 19) the primary judge was simply reciting the topics raised by Mr Hillier, I infer in his submissions, and doing no more.

176    By ground 10 of the Amended Leave Application Ms Martin contends that the primary judge erred in his finding that there was no evidence of actual bias because his Honour was “anxious to sit” as trial judge in the primary proceeding. Ms Martin does not point to anything to support this ground. On my review of the reasons in Hillier (No 19) it is not apparent that the primary judge refused to recuse himself because he was anxious to sit and to continue to hear the Iniquity Application or otherwise continue to hear the primary proceeding. There is nothing to suggest that the primary judge had any particular interest in continuing to sit. I do not accept that his Honour did anything more than decline to recuse himself in circumstances where the allegation of actual bias was not made out.

177    It is convenient to also address grounds 20 and 21 of the Amended Leave Application. They are general in nature and arguably relate to both aspects of the Amended Leave Application.

178    By ground 20 Ms Martin contends that the primary judge erred in excluding or having insufficient regard to Ms Martin’s evidence filed on 17 and 25 October 2023 and her submissions filed on 18 October 2023 in circumstances where she lacked legal representation because of a freezing order made in the primary proceeding on 22 August 2022. However an affidavit is not adduced in evidence simply by its filing. It must be read: see Provide Nominees Pty Ltd v Australian Securities and Investments Commission [2024] FCAFC 25 at [40]-[42]. In any event, despite Ms Martin failing to appear and thus to read her affidavits, the primary judge referred to them insofar as they were referred to in the Primary Judge Recusal Application and provided a short summary of them. His Honour also referred to and summarised Ms Martin’s submissions filed on 18 October 2023 notwithstanding that those submissions were not formally relied on before his Honour: Hillier (No 19) at [99]-[101].

179    By ground 21 Ms Martin contends that the primary judge should have made orders on 3 August 2023 to facilitate her being legally represented but does not explain what form those orders should have taken. In Hillier (No 19) at [10]-[12] the primary judge refers to the case management hearing before him on 3 August 2023, at which Ms Martin did not appear, and to orders made on that occasion. If Ms Martin wished to make any application in relation to the orders made or to seek alternate orders it was open to her to attempt to do so by relisting the primary proceeding and/or, to the extent that Ms Martin is referring to the freezing orders made earlier in the primary proceeding, to bring an application to vary those orders. She did not do so.

180    Relevantly, in her affidavit affirmed on 25 March 2024 Ms Martin says, in support of grounds 20 and 21, that the primary judge’s reasons convey “a degree of moral fault” for her non-attendance at each of the case management hearings and hearings in the primary proceeding which is a consequence of her being a self-represented layperson without financial means to obtain representation. A fair reading of Hillier (No 19) does not convey any fault, moral or otherwise on Ms Martin’s part. By way of background the primary judge recited the procedural history of the application before him. As a matter of fact Ms Martin did not appear on the occasions mentioned, including the relevant hearing dates.

181    Grounds 20 and 21 do not disclose any arguable error in the primary judge’s reasons including in his Honour’s consideration of the Primary Judge Recusal Application.

182    It follows from the above that Ms Martin has failed to show that the primary judge’s reasons insofar as they concern the Primary Judge Recusal Application are attended by sufficient doubt to warrant their reconsideration by a Full Court of this Court. That being so it is not necessary for me to consider the question of substantial injustice.

Iniquity Application

183    By grounds 11 to 19 of the Amended Leave Application Ms Martin contends that the primary judge made errors in determining the Iniquity Application.

Ms Martin’s submissions

184    Both Ms Martin’s written and oral submissions relied on for the purposes of the hearing of the Amended Leave Application focused principally on the Primary Judge Recusal Application. In her written submission in reply Ms Martin addresses the Iniquity Application. Insofar as she does, she submits that the primary judge had a duty to ensure that an intrusion into her fundamental common law right of legal professional privilege was limited to those communications which were actually found to be in furtherance of an unlawful purpose. Ms Martin observes that the common law right of legal professional privilege is fundamental to the adversarial process and is not merely a substantive procedural right, referring to Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at [11].

185    After referring to several authorities Ms Martin submits that there were several aspects of the Iniquity Application which clearly required the primary judge to have regard, in exercising his discretion, to the surrounding circumstances and to consider whether the allegation of iniquity was made “honestly and with sufficient probability of its truth”. She contends that the submissions against interest in the “Nordburger Proceeding” (which is the second proceeding commenced by Mr Hillier in the District Court – see [169] above) and its apparent concealment by Mr Hillier is obviously one of those issues. Ms Martin repeats her submissions made in connection with the Primary Judge Recusal Application to the effect that the primary judge refrained from considering the countervailing evidence on the basis that it was not necessary to consider issues of credit or to arrive at any concluded position and observes that, while that may be so, it does not follow that a judge may refrain from considering whether allegations are credible or sufficiently probable where contradictory evidence is before the Court.

Should leave to appeal be granted?

186    I turn to consider the grounds of the Amended Leave Application on which Ms Martin relies in relation to the Iniquity Application.

187    By ground 11 Ms Martin contends that the primary judge erred at [42] to [44] of Hillier (No 19) by mischaracterising and failing to take proper account of the basis for her defence of the primary proceeding. She says that the primary judge summarised the 5ASOC in detail over 42 paragraphs whilst only superficially summarising her defence. I do not accept that the primary judge mischaracterised or failed to take proper account of the basis of Ms Martin’s defence of the primary proceeding. While much shorter than the summary of the 5ASOC the primary judge summarised the nature of Ms Martin’s defence in a way which allows an understanding of the matters in dispute in the proceeding.

188    By grounds 12 to 15 Ms Martin challenges the primary judge’s finding that there was “colour to the charge” of iniquity.

189    Ground 12 is a bare assertion that there was error in the primary judge’s ultimate finding on that question. It is unparticularised and does not assist Ms Martin in showing any error in the primary judge’s reasons. Ground 13 is a contention that the primary judge failed to apply the correct test and misdirected himself by failing to consider the credibility of the charge in light of any contradictory evidence. However, Ms Martin does not identify the contradictory evidence that the primary judge ought to have considered. There was no contradictory evidence before the primary judge on the Iniquity Application.

190    Ground 14 contends that the primary judge erred in proceeding on an erroneous basis at [188] of Hillier (No 19) in saying that the joint venture was established in October and November 2014 when Mr Hillier’s case is that it was established in December 2012. His Honour did not proceed on an erroneous basis as alleged:

(1)    at [42] of Hillier (No 19) the primary judge summarised the 5ASOC including at [42(1)] that “[f]rom 2012, there existed a joint venture agreement (Nordburger Joint Venture Agreement) between Mr Hillier, Ms Martin and Mr Andrew Craig on behalf of the third respondent, Erik Vari Pty Ltd, an entity controlled by Mr Craig’s father, Mr Robert Craig (Craig Interests) pursuant to which the Nordburger business traded (Joint Venture)”;

(2)    at [188] of Hillier (No 19) the primary judge referred to and summarised Mr Hillier’s description included in his trial affidavit of events concerning the Joint Venture as defined. That is his Honour was summarising Mr Hillier’s evidence on that topic, it seems, commencing in 2014 which is the time at which Mr Hillier alleges in the 5ASOC the parties agreed to a variation of their interests in the Joint Venture (see [42(4)] of Hillier (No 19)); and

(3)    the description at [188] of Hillier (No 19) is not inconsistent with his Honour’s summary of the pleaded case. It forms part of the background to his Honour’s rejection of the NW Parties’ submission that Mr Hillier’s evidence about the Joint Venture is scant and to his ultimate finding on the Iniquity Application.

191    By ground 15 Ms Martin contends that the primary judge erred at [191] of Hillier (No 19) in finding that “there is at least a prima facie case that there existed between the three parties a Joint Venture” and in finding that Ms Martin’s denial of the Joint Venture “has no greater force than the contention by Mr Hillier that there was a Joint Venture” by failing to consider: the relative probabilities of their contentions by reference to corroboration of Ms Martin’s position by contemporaneous business records; the paucity of evidence for the undocumented joint venture; and Mr Hillier’s admission in the District Court proceeding between him as plaintiff and Mr Craig and William Buck as defendants.

192    On the Iniquity Application the primary judge had before him an affidavit sworn by Mr Hillier on 15 August 2023. Among other things Mr Hillier’s affidavit referred to and had annexed to it:

(1)    a document titled “Heads of Agreement for Owners Agreement” which was signed by three people, Robert Craig, Mr Hillier and Ms Martin, and which among other things:

(a)    summarised “the principal terms of the Owners Agreement for the ‘Nordburger Group’” and “is a broadly agreed basis to be used for drafting of the owners agreement”; and

(b)    recorded the “Owners” as Mr Hillier “&/or related entities” as 40%, Ms Martin “/or related entities” as 35% and Robert Craig “(via Eik Vari Pty Ltd)” as 25%;

(2)    an email sent on 23 August 2015 by Ms Martin to Mr Craig and Mr Hillier, copied to Mr Martin, in which Ms Martin suggested a meeting “to have a follow up chat to our last chat and to finalise on paper”, among other things, “what additional documents” were needed “to reflect the current arrangements” and “what is the best structure for the business going forward”; and

(3)    a memorandum from JL Lawyers, who Mr Hillier described as the lawyers instructed by Mr Martin to formally document the Nordburger joint venture, dated 14 October 2015 concerning “Nordburger Restructure” which included:

In our meeting of 29 September 2015, it was broadly agreed that the Nordburger group should undergo a corporate restructure with the objective being to implement a structure by which:-

•    all Nordburger businesses are operated by one company (Operating Co);

•    the shareholdings in Operating Co reflect the agreed underlying economic interests in the Nordburger group - being 40 (James):35 (Victoria):25(Andrew) - via their chosen shareholding entities

…

Given the role already played in the group by Nordburger Pty Ltd, it was agreed that this entity would be a logical entity to become Operating Co. Currently, Nordburger Pty Ltd is owned as to 100% by the Hillier PIAH Family Trust of which Victoria is the trustee (Victoria’s Trust). Victoria is also the sole director of this company.

Issue of new shares in Nordburger Pty Ltd

A simple means of establishing the desired economic ownership in Nordburger Pty Ltd would be to issue additional shares in the company for nominal consideration in such number so as to give effect to the 40:35:25 split. This step is likely however to give rise to consequences under the direct value shifting regime (Division 725 of the Income Tax Assessment Act 1997 (Cth)).

193    This evidence comfortably allowed the primary judge to draw the conclusion that there was a prima facie case that there was a Joint Venture. There was no error in his Honour’s observation about the lack of force in Ms Martin’s denial of the existence of the Joint Venture. In the absence of evidence, Ms Martin’s denial could have no force.

194    Ground 16 contends that the primary judge erred in declining to inspect the documents subject to the claim for privilege to differentiate between those which might and might not reasonably be connected to the alleged iniquity. As set out above, the primary judge did not “decline” to inspect those documents. Rather, Mr Hillier and the NW Parties made submissions to the effect that the primary judge was not required to inspect them which the primary judge accepted. His Honour explained at [168] of Hillier (No 19) that the question to be resolved was not the existence of privilege over the relevant documents per se, but whether “the documents and information over which the NW Parties claim privilege on behalf of Ms Martin either never attracted privilege, or if they did, that privilege has been displaced”. The resolution of that question did not require inspection of the documents in issue.

195    Grounds 17 and 18 concern the primary judge’s findings at [220]-[225] of Hillier (No 19) where his Honour relevantly said:

220    Mr Hillier refers to the findings of Charlesworth J in Hillier v Martin (No 12) [2022] FCA 952 that there was a lack of evidence to support the remuneration paid to Ms Martin and Mr Martin, as well as a related entity, VTPD, by Nordburger. Mr Hillier refers to her Honour’s observations that in the case of Mr Martin: at [82]:

The various affidavits relied upon by Mr Martin and the respondents do not contain information as to the services performed by Mr Martin in consideration for that payment. No contract for services is in evidence. The hours worked by Mr Martin in the performance of the services are not stated. There is insufficient evidence to support a conclusion that any services in fact provided to any entity in the Nordburger group are either indispensable, or that they are services that only Mr Martin could provide, or that they are provided in the performance of a contract for services presently on foot.

221    In the case of Ms Martin, her Honour found: at [96], that there was no evidence before her Honour:

… as to the particular tasks performed by Mrs Martin in the course of her asserted employment, nor as to the terms of the asserted employment contract.

222    It may well be that in any trial of this matter, evidence is produced to address the information which was lacking before her Honour but without more at this stage, there is a prima facie case that both Ms Martin and Mr Martin were drawing remuneration from Nordburger for which there was no basis.

223    It is in that context that Mr Hillier refers to Charlesworth J’s judgment in Hillier v Martin (No 11) [2022) FCA 407, [35]-[38] in which her Honour records that Ms Martin, Mr Martin and an entity named VTPD had received loan advances which as at 21 March 2022 exceeded $600,000 and during the period 2020, 2021 and year-to-date March 2022 had drawn sums in excess of $500,000.

224    Once again, it may well be that these loans and drawings are able to be explained at trial and I make no findings about those matters. However, there was sufficient material before Charlesworth J which, in the absence of evidence to the contrary, her Honour considered that at an interlocutory stage: at [36] it, “… may be comfortably inferred that the debtors under the loans were either Mr and Mrs Martin personally, or the controllers of trusts or other structures representing the personal interests”.

225    I draw no inference but I am satisfied that there is an issue which has been raised on the material upon which Mr Hillier relies such as to give colour to the charge of iniquity.

196    By ground 17 Ms Martin contends that the primary judge erred in finding that there was colour to the charge of iniquity in relation to Mr Hillier’s allegations concerning remuneration and loans in the absence of any evidence that the conduct was ever the subject of any communication between Ms Martin and her lawyers. However, after referring to Mr Hillier’s submissions and those parts of earlier decisions in the primary proceeding relied on by Mr Hillier, his Honour made it plain (at [224]-[225]) that he was making no findings and drawing no inference about the loans and drawings made by Ms and Mr Martin, noting they are matters for which explanation may be given at trial.

197    By ground 18 Ms Martin contends that the primary judge erred by relying, and placing undue weight, on earlier judgments given in the primary proceeding. There is no error in the primary judge referring to and relying, to the extent he did, on those earlier judgments. As Mr Hillier submits they were considered findings made in relation to disputed facts in applications in which Ms Martin and Operations were heard.

198    Ground 19 contends that the primary judge erred at [211] of Hillier (No 19) in misstating the effect of the deed poll and proceeding on the assumption that Mr Hillier “at least initially” had a majority interest in the Nordburger business. This ground misunderstands [211] of Hillier (No 19). There the primary judge referred to the deed poll to conclude that it contained a restriction on Mr Hillier’s involvement in the business. In characterising the business as one in which Mr Hillier at least initially held a majority share his Honour was not referring to the effect or terms of the deed poll but rather other evidence relied on before him (see for example the evidence referred to at [192] above).

199    It follows from the matters set out above that in my view Ms Martin has not established that the primary judge’s decision insofar as it concerns the Iniquity Application is attended by sufficient doubt to warrant its reconsideration by a Full Court. The grounds she relies on are without merit.

200    Given that conclusion it is not necessary for me to consider whether Ms Martin would suffer substantial injustice from a refusal to grant leave to appeal, supposing the primary judgment to be incorrect.

Conclusion

201    The Amended Leave Application should be dismissed. As Ms Martin has been unsuccessful, she should pay Mr Hillier’s costs of that application.

DISPOSITION

202    I will make orders dismissing the Recusal Application, the Amended Reopening Application and the Amended Leave Application and for Ms Martin to pay Mr Hillier’s costs of the latter two applications, that is the Amended Reopening Application and the Amended Leave Application.

Associate:

Dated:    2 June 2025

SCHEDULE OF PARTIES