Federal Court of Australia
Victorian Legal Services Board v Kuksal (Recusal Application) [2025] FCA 828
File number(s): | VID 222 of 2025 VID 642 of 2025 |
Judgment of: | DOWNES J |
Date of judgment: | 21 July 2025 |
Catchwords: | PRACTICE AND PROCEDURE – application for recusal on grounds of actual and apprehended bias – allegation of obstruction of rights for the improper purpose of either pursuing a policy or ideological objective or pursuing a personal interest or benefit – allegation that conduct of proceedings has been arbitrary and unreasonable – application refused |
Legislation: | Federal Court Rules 2011 (Cth) rr 8.12, 42.12 Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 2.11(1)(c) |
Cases cited: | Australia and New Zealand Banking Group Limited v James [2021] FCA 768 Dunstan v Orr [2022] FCA 1006 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Victorian Legal Services Board v Kuksal (Interlocutory Matters) [2025] FCA 801 Victorian Legal Services Board v Kuksal (No 2) [2025] FCA 646 Victorian Legal Services Board v Kuksal [2025] FCA 558 |
Division: | General Division |
Registry: | Victoria |
National Practice Area: | Commercial and Corporations |
Sub-area: | General and Personal Insolvency |
Number of paragraphs: | 139 |
Date of hearing: | 17 July 2025 |
Counsel for the Applicant: | Mr S Mukerjea |
Solicitor for the Applicant: | Corrs Chambers Westgarth |
Counsel for the Respondents: | The Respondents appeared in person |
ORDERS
VID 222 of 2025 | ||
| ||
BETWEEN: | VICTORIAN LEGAL SERVICES BOARD Applicant | |
AND: | SHIVESH KUKSAL First Respondent PETER ANSELL Second Respondent LULU XU Third Respondent | |
JOBWATCH, INC Supporting creditor |
order made by: | DOWNES J |
DATE OF ORDER: | 21 JULY 2025 |
THE COURT ORDERS THAT:
1. The application for orders in terms of prayer 1 of the respondents’ interlocutory application filed in this proceeding on 23 June 2025 is refused.
2. Costs reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DOWNES J:
Synopsis
1 Mr Shivesh Kuksal, Mr Peter Ansell and Ms Lulu Xu are respondents in proceedings commenced in this Court by the Victorian Legal Services Board (Board) and others (the applicants).
2 The first of those proceedings, VID222 of 2025, was commenced by the applicants following the filing of a creditor’s petition (bankruptcy proceeding). In the bankruptcy proceeding, there are nine supporting creditors who are represented by the first supporting creditor, Jobwatch, Inc.
3 The second proceeding, VID642 of 2025, is a collateral proceeding commenced by the Board which seeks (inter alia) injunctions restraining the respondents from engaging in certain conduct and other orders.
4 By prayer 1 of their interlocutory application dated 23 June 2025, the respondents apply for an order that I recuse myself from hearing the creditor’s petition and the collateral proceeding. The hearing of the creditor’s petition is set down on 27 and 28 June 2025 and so there is some urgency in deciding this application.
5 By prayer 2 of that application, the respondents seek an order that “any further hearings” in the bankruptcy proceeding be postponed until two weeks after the determination of the recusal application. For reasons which will become apparent, that application will be the subject of a separate judgment.
6 For the reasons that follow, I have determined that I should not recuse myself from either the creditor’s petition or the collateral proceeding.
Background
7 The background to the filing of the creditor’s petition and the collateral proceeding has been set out in the following judgments, namely Victorian Legal Services Board v Kuksal [2025] FCA 558 at [4]–[8] (Meagher J), Victorian Legal Services Board v Kuksal (No 2) [2025] FCA 646 at [1]–[4] (Downes J) (Kuksal No 2) and Victorian Legal Services Board v Kuksal (Interlocutory Matters) [2025] FCA 801 at [3]–[11] (Lee J).
8 The bankruptcy proceeding was re-allocated twice prior to being allocated to my docket on 11 June 2025. This is referred to in Kuksal No 2 at [2]–[3]. The first occasion was following a recusal application brought by the respondents after the proceeding was allocated to Bennett J. As to the second occasion, Moshinsky J wrote in a statement which was read out to the parties and dated 4 June 2025 that:
On 28 May 2025, my chambers wrote to the parties stating that proceeding VID222/2025 had been re-allocated to my docket and that proceeding VID642/2025 had been allocated to my docket, and that my chambers would be in touch with the parties in due course regarding future listing arrangements.
Subsequently, my chambers received a number of emails from Mr Peter Ansell regarding a potential conflict in my hearing these matters. Mr Ansell is one of the respondents to the proceedings.
In one of these emails, Mr Ansell drew to my attention a previous proceeding in this Court, namely Maria Di Gregorio v Lumi Finance Pty Ltd (VID 104 of 2022). …
Having reviewed that proceeding, I consider that there is a conflict in my hearing the present proceedings.
9 As I accepted during the hearing, no recusal application was made by the respondents in relation to Moshinsky J. However, Kuksal No 2 does not state that such an application was made.
10 As the respondents make numerous allegations about the conduct of these proceedings since I became the docket judge, it is necessary to set out some of the relevant facts in detail.
Correspondence prior to the first case management hearing
Correspondence in relation to the bankruptcy proceeding
11 On 12 June 2025 at 11.46 am, being the day after the re-allocation, my chambers sent the following email to the parties in relation to listing the bankruptcy proceeding for a case management hearing on 17 June 2025 at 9.30 am:
Dear parties
Please be advised that this matter has been reallocated to the docket of Justice Downes. Please direct all future correspondence in this matter to the chambers of Justice Downes.
This matter has been listed for a case management hearing on Tuesday, 17 June 2025 at 9.30 am in Brisbane.
The parties are permitted to appear by Microsoft Teams, or a courtroom in the Melbourne registry may be used with videoconferencing software. Would the parties please indicate which option would be suitable?
The parties are requested to provide draft orders, whether competing or by consent, as well as details of appearances and any affidavit material not yet filed by 2.00 pm on Monday, 16 June 2025.
Kind regards
(Original emphasis removed; emphasis added.)
12 On 16 June 2025 at 1.32 pm, Mr Kuksal responded to this email on behalf of the respondents. Mr Kuksal apologised that the respondents would not be able to meet the deadline to provide their proposed orders, and sought leave to provide those orders by 8.00 pm that day. By that email, Mr Kuksal also referred to:
… the email sent by Ms Xu (with input from Mr Ansell and me) concerning the related proceeding VID 642/2025 and advise the Court that we are currently finalising the filing of an interlocutory application (seeking that the Court find the Applicants and their solicitors to have committed contempt of Court and other declaratory relief concerning their misconduct as well as leave to issue subpoenas and orders that the Court first rule on separate questions identified in the application with the aim of disposing the proceeding or significantly narrowing the controversies) and a constitutional notice (a part of which is described in the correspondence sent by Ms Xu) which will inform the orders that we seek regarding the management of the proceeding.
The Respondents are unlikely to finalise this process before 4:30 pm. However, we will provide Downes J’s chambers and the Applicants with copies of the documents we file, as soon as possible, this evening.
…
13 On 16 June 2025 at 2.05 pm, the applicants provided appearance details of counsel who would be appearing on 17 June and attached proposed orders, which identified dates in June and July that the applicants’ counsel was not available for the hearing of the creditor’s petition.
14 Following this email, the respondents transmitted emails to my chambers and to the applicants as follows.
15 On 16 June 2025 at 2.29 pm, Mr Kuksal sent an email to my chambers which responded to the applicants’ notification of their appearance for the 17 June 2025 case management hearing. Mr Kuksal’s email made various allegations about the counsel for the applicants, including that “many … have lasted no more than a single directions hearing before quitting after being implicated in the commission of misconduct, in the various matters we’re litigating against the LSB”. Mr Kuksal’s email also contained an embedded link to a YouTube video which purported to record “the recent incident that claimed the appointment” of counsel.
16 On 16 June 2025 at about 3.20 pm, Ms Xu sent an email to my chambers. That email contained three links to YouTube videos. It also attached an affidavit of Ms Xu dated 31 October 2023 which was 282 pages in length and appears on its face to have been filed in the Supreme Court of Victoria, along with another document entitled “24-25.08.22 – MH and MO – Contact Howard Bowles to Gain Access to SK’s Privileged Case Files”.
17 No email was received from the respondents which attached proposed orders or any affidavit material to be relied upon by the respondents in the bankruptcy proceeding.
18 At 9.11 am on 17 June 2025 and when I was about to commence hearing a case management hearing in a different proceeding at 9.15 am, Ms Xu sent an email to my associates which attached an interlocutory application by the respondents in relation to the creditor’s petition and a Notice of a Constitutional Matter (constitutional notice), both dated 17 June 2025. Ms Xu sent a further email at 9.27 am attaching an amended version of the interlocutory application.
19 It became apparent during the case management hearing that the applicants had received these documents at the same time as they had been sent to my chambers.
Correspondence sent in the collateral proceeding
20 A separate email was also sent on 12 June 2025 by my chambers to the parties in the collateral proceeding. That email requested the parties to advise their availability for a hearing of the interlocutory applications on either 30 June 2025 or 1 July 2025, and requested an estimate of time for the hearing of the applications.
21 Ms Xu responded to that email on 16 June 2025 at 1.00 pm. That email contained a number of attachments, being:
(1) a document entitled “05.06.25 – SK to FCA – Listing of Urgent Hearing in VID 642_2025”;
(2) a document entitled “28.05-02.06.25 – SK and TF – VID642_2025 Orders – Meagher J”;
(3) a zip folder entitled “VLSB Corruption Evidence”; and
(4) a zip folder entitled “Foley Evidence”.
22 The body of Ms Xu’s email stated:
Dear Associate,
I write on behalf of the Respondents in the proceeding and refer to the attached email sent by Mr Kuksal to the registry on June 5, 2025, and the accompanying documents (also attached to this email).
Based on the registry’s response to the correspondence, it was clear to the Respondents that following our complaints regarding the Applicant’s improper coordination with some local registry officials to prejudice our right to due process in court proceedings, the Court had appropriately decided to entrust officers from other registries to avoid scandalisation of the court’s affairs. Therefore, the Respondents decided to wait until the proceedings were allocated to a judge before taking the next steps.
In the meantime, we were engaged in preparing the documents necessary for the appeal of the decisions that purportedly gave rise to the bankruptcy notices.
The Respondents press the content of Mr Kuksal’s correspondence to the registry and add:
1. Following further consideration, the Respondents have decided to include the issues referred to in Section A of Mr Kuksal’s letter (dated June 4, 2025) in the Constitutional Notice we had planned to file in the related proceeding VID 222/2025.
2. The Respondents intend to lodge a more comprehensive application (than previously foreshadowed) for an urgent listing of the next hearing in the proceeding before the end of this week. In addition to previously foreshadowed issues, the application will now also seek to rely on the Applicant’s tendency to engage in the perversion of the course of justice to prevent its opponents from having their matters determined by the Court in accordance with the law.
3. The Respondents emphasise that the maintenance of the unjustifiable orders (which the Respondents submit were made in jurisdictional error) has the effect of inflicting oppression upon us and unlawfully abrogating our rights to unimpeded access to the Court, equal treatment in accordance with the law and due process.
4. Without comprehensively stipulating all the grounds in support of the assertion made through subparagraph 5.1 of Mr Kuksal’s letter, the Respondents note that Justice Meagher’s orders in the proceeding purportedly affect the conduct of the related proceeding VID 222/2025, notwithstanding that:
5. Her Honour has never presided over the related proceeding;
6. The orders in the related proceeding were made in response to an application in the (current) proceeding, in the absence of a hearing in the related proceeding and without any parties to that proceeding (including the Respondents - who had not been heard that day and had only requested an adjournment of a few hours to ensure that the documents they had filed were made available to Justice Meagher) being given an opportunity to address the Court; and
7. Justice Meagher has failed to identify the source of the authority Her Honour exercised in making the orders, either in the document containing the orders or in Her Honour’s reasons (the Respondents note that not only do the orders lack utility, given that no suppression orders have been applied for, let alone made in the related proceeding (A Lawyer (a pseudonym) v Director of Public Prosecutions (NSW) [2020] NSWSC 1713, Herald & Weekly Times Ltd v Magistrates’ Court of Victoria [2000] VSCA 242, John Fairfax And Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465, Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47, John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, Hogan v Hinch [2011] HCA 4, Harman v Home Department State Secretary [1983] 1 AC 280 and R v Hoser [2001] VSC 443, among others, clarify the absence of a legitimate basis to seek such orders in either the (current) or the related proceeding).
Justice Meagher’s reasons are conspicuously devoid of any reference to the open courts principle or the implied freedom of political speech or Her Honour’s awareness of the high threshold that must be satisfied before the rights arising from those aspects of the law are lawfully abrogated. Most notably, Her Honour failed to provide any indication that she had understood the legal criteria that the Applicants must satisfy (demonstrate beyond reasonable doubt that he Respondents have the intention and means to commit acts that would be in contempt of court, proved beyond reasonable doubt (News Digital Media Pty Ltd v Mokbel [2010] VSCA 51 and Y & Z v W [2007] NSWCA 329) (it’s important to note that the Applicant’s are seeking injunctive relief to pre-emptively restrain publication that may affect the conduct of a separate proceeding and not suppression orders within the same proceeding!) and the orders sought by the Applicant are the only means of preventing it (Attorney-General for New South Wales v John Fairfax & Sons Ltd and Bacon (1985) 6 NSWLR 695, General Television Corp Pty Ltd v Director of Public Prosecutions (DPP) [2008] VSCA 49 and John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324) to succeed in their application.
Based on the Applicant’s case, it is a legal fact that it is incapable of satisfying the criteria (see TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83 at [31], R v Metal Trades & Employers Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 209, R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100, De Gioia v Darling Island Stevedoring & Lighterage Co (1942) 42 SR (NSW) 1 and Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 140).
In light of the matters raised above and those contained in the attached correspondence, the Respondents request Justice Downes to consider listing the matter for a one-and-a-half day listing (given that the Respondents wish to cross-examine Mr Heath and adduce additional evidence) next week.
As mentioned above, the Respondents intend to lodge a comprehensive application for an urgent listing of the matter, which will also seek other relief before the end of this week. Please advise if the Downes J has the capacity to accommodate the hearing of the matter next week, as well as the time to consider the already considerable material lodged by the Respondents in the proceeding (with more to be lodged imminently) in the days before the hearing.
We appreciate your assistance.
Sincerely,
Lulu Xu
(Emphasis original.)
23 The first attachment to Ms Xu’s email was a five page letter from Mr Kuksal to the Victorian registry and others dated 4 June 2025 which referred to an interlocutory application which the respondents were currently preparing to file in the proceeding along with a constitutional notice. It stated that the respondents intended to file the constitutional notice, affidavits and submissions on 6 June 2025. This letter was consistent with Ms Xu’s covering email—that is, it conveyed an intention by the respondents to file an interlocutory application in the collateral proceeding.
Case management hearing on 17 June 2025
24 At the case management hearing in the bankruptcy proceeding on 17 June 2025, Mr Kuksal referred to some of the email correspondence that had been sent by the respondents to my chambers. The following exchange then occurred:
HER HONOUR: Well, I don’t read emails to my associate. And I don’t like documents being sent to my associate. So if you want to file something in the court, you’ve got to file it through the registry. All right. And if you want to communicate with my associate, then, you will need to get the consent of the other side before you do that. All right. So - - -
MR KUKSAL: But, your Honour, the availability of the applicants was also conveyed via email to your Honour’s associate, I understand.
HER HONOUR: Availability, yes. But not new documents and other things.
25 At this hearing, at which all of the respondents appeared, Mr Kuksal also said in relation to the constitutional notice and interlocutory application:
MR KUKSAL: I think Ms Xu has initiated the filing of the documents in the registry, but it was also emailed to your Honour’s associate - - -
26 Mr Kuksal later stated that the interlocutory application had been filed with the registry “this morning” but had not “been processed yet”. As it transpired, the interlocutory application had not been lodged with the registry, although I accept that Mr Kuksal might have been under the misunderstanding that it had been lodged.
27 In any event, for the reasons given in Kuksal No 2, it was inappropriate to hear argument on the matters raised in the interlocutory application at the case management hearing, as the interlocutory application was not appearing on the electronic court file and, as it had only been served in the minutes prior to the commencement of the hearing, the applicants had not had time to consider it. Furthermore, as indicated to the parties, the hearing was for case management only, being the listing of the hearing dates of the creditor’s petition and the making of directions about filing submissions. It was not a substantive hearing, and time had been allocated accordingly.
28 The respondents sought that the interlocutory application be heard and determined before the creditor’s petition, which course appeared to be resisted by the applicants’ counsel. I marked the amended interlocutory application which had been emailed by the respondents as “MFI-I”. I also made orders directing the parties to file and serve written submissions on the issue of whether it was necessary for the Court to hear and determine the respondents’ interlocutory application before the hearing of the creditor’s petition. I also made an order listing the creditor’s petition for hearing at 9.30 am on 28 and 29 July 2025, rather than on an earlier date, so as to allow for the hearing of the respondents’ interlocutory application prior to the hearing of the creditor’s petition, if appropriate. This timing also took into account my other court commitments.
29 Following the case management hearing, at 10.46 am, my chambers sent an email to the applicants and the respondents which stated:
…
The parties are reminded of three matters:
(1) Justice Downes does not read emails that are sent to this email address. If the parties wish to adduce evidence or make submissions, then that should not occur by email.
(2) Documents which are sent to this email address are not filed in the Court. Any documents have been sent before today to this email address which a party seeks to rely upon should be filed and served.
(3) …
Correspondence following the case management hearing on 17 June 2025
30 On 17 June 2025 at 11.33 am, Mr Kuksal sent an email to my chambers that stated the following (inter alia):
…
For clarification, the Respondents did not imply that emailing documents to a judge’s chambers constitutes a method of filing. The Respondents express no opinion in that respect other than acknowledging Downes J’s directions (without waiving any rights in respect of Her Honour giving them).
That assertion was made in relation to emails sent to the registry (i.e. through the email address vid2222025@fedcourt.gov.au), which relevantly constitutes their lodgment according to rules 2.23-2.26 of the Federal Court Rules 2011.
…
As we had previously emphasised, the Respondents have not introduced new evidence through emails to Downes J’s chambers. All the documents relied upon in matters raised via email correspondence have been lodged with the Court as exhibits to affidavits and the respective affidavits have been sealed and served several weeks ago. This includes the links to YouTube playlists which have been included in the body of the affidavits previously filed with the Court.
Given that Downes J has directed the parties to seek leave before raising a legal matter, the Respondents:
1. Seek directions to raise the grounds in support of our application seeking Her Honour's recusal from both VID 222/2025 and VID 642/2025. The directions are sought on two bases:
a. Not seeking them at this stage and simply complying with the orders may constitute a waiver of our right to raise the application later (Vakauta v Kelly [1989] HCA 44 and Johnson v Johnson (2000) 201 CLR 488).
b. Raising the matter on paper beforehand will make the hearing of the application in the proceeding VID 642/2025 more efficient by ensuring Her Honour has had an opportunity in advance to consider the grounds.
2. Request Her Honour to give reasons for her decisions. In particular, the Respondents note the relevance (to the issues of abuse of process, contempt of court and professional misconduct that we are raising in VID 642/2025 and VID 222/2025) of Her Honour’s decision to prevent me from making accusations (on evidence) against Ms Aprile this morning (with the view of seeking to discourage the persistent abuse of the court process by the Applicants, as the Respondents allege through their extensive evidence) in addition to the matters already raised or identified during the hearing.
To clarify, the Respondents will make the recusal application in open court at the next hearing before Downes J, as is required by law.
The purpose of the email is to primarily seek Her Honour’s reasons, which will relevantly inform the grounds of the recusal application and to seek directions for the filing of material in support of the application that will be made in open court.
…
(Emphasis original.)
31 Later that same day, I published reasons for making the orders at the case management hearing as contained in Kuksal No 2.
The applicants’ interlocutory applications
32 By email dated 19 June 2025, the applicants requested that the interlocutory applications filed in the collateral proceeding be listed for 1 July 2025 or (if that could not be accommodated) 18 or 21 July 2025. That email was a response to the email sent by my chambers.
33 By that email, the applicants also indicated that they were agreeable to the respondents’ interlocutory application in the bankruptcy proceeding being heard at the same time on the basis that there appeared to be “significant overlap” between the applications as “common questions of fact and law are likely to arise in each application”.
34 Such a course rendered the need for the parties to file submissions on this question otiose, and would give the respondents what they wanted (that is, a hearing of their interlocutory application). As set out above, 1 July 2025 had been indicated by my chambers as a suitable date for hearing the interlocutory applications in the collateral proceeding, which communication occurred prior to the creditor’s petition being set down for 28 and 29 July 2025.
35 However, by 20 June 2025, the respondents’ interlocutory application had not been lodged for filing by the respondents in the bankruptcy proceeding. I also formed the view that the respondents might not be aware of the requirements under the Federal Court Rules 2011 (Cth) relating to their constitutional notice, and I did not want any non-compliance with these rules to derail the hearing of their interlocutory application. I also considered that, as the constitutional notice needed to be served in accordance with r 8.12 of the Federal Court Rules, a hearing date of 1 July 2025 was too soon.
36 Accordingly, I made the following orders on 20 June 2025 in the bankruptcy proceeding:
1. Order 1 of the Order dated 17 June 2025 is vacated. [This was the order requiring the parties to provide submissions].
2. The respondents file and serve their interlocutory application, being in the form attached to this Order and marked “A” by 4pm on 23 June 2025. [This gave the respondents three days to lodge the application which they had prepared and which was “MFI-1”].
3. Pursuant to rule 8.12(2)(d) of the Federal Court Rules, the respondents are directed to serve the amended Notice of a Constitutional Matter dated 17 June 2025 on each person as required by section 78B of the Judiciary Act 1903 (Cth) by 27 June 2025.
4. If the respondents comply with orders 2 and 3, then:
(a) the interlocutory application will be listed for hearing at 9.30am on 18 July 2025;
(b) the parties file and serve any written submissions in relation to that application by 4pm on 14 July 2025.
37 These orders were transmitted to the parties by email from my associate at 8.55 am on 20 June 2025. The covering email stated as follows:
Dear parties
The respondents have not filed the interlocutory application which is MFI-1 and are directed to do so by 4pm 23 June 2025. This is reflected in the attached order in VID222/2025.
The attention of the respondents is also drawn to rules 8.11 and 8.12 of the Federal Court Rules 2011 (Cth).
By the attached order in VID222/2025 and pursuant to rule 8.12(2)(d), the respondents are directed to serve the amended Notice of a Constitutional Matter dated 17 June 2025 on each person as required by section 78B of the Judiciary Act 1903 (Cth) by 27 June 2025.
The respondents are also required to file an affidavit of service as soon as practicable after serving the notice: see rule 8.12(1)(b). The respondents’ attention is also drawn to rule 8.12(1)(c).
The interlocutory applications in VID642/2025 will be listed for hearing at 9.30am on 18 July 2025. Please see attached order in VID642/2025.
If the respondents comply with orders 2 and 3 of the attached order in VID222/2025, their interlocutory application will also be listed for hearing on 18 July 2025. The hearing of all applications will be listed for one day.
As the applicants have agreed to the interlocutory application in VID222/2025 being heard before the hearing of the creditor’s petition, order 1 of the Order dated 17 June 2025 has been vacated. The respondents are no longer required to file any submissions as referred to in that Order.
If the respondents fail to comply with orders 2 and 3 of the attached order in VID222/2025, then this will likely have the consequence that their interlocutory application will not be able to be heard prior to the creditor’s petition.
By the attached orders, the parties are required to file and serve any written submissions in relation to the applications by 14 July 2025.
…
(Emphasis original.)
38 At 3.18 pm on 20 June 2025, Mr Kuksal responded to my chambers on behalf of the respondents. Mr Kuksal’s email stated:
Dear Associate,
I write on behalf of the Respondents.
We request Downes J to provide reasons for Her Honour’s decisions delivered via the attached email received today. We further request that Downes J provide them at her earliest convenience.
Whilst we consider it inappropriate for Downes J to make any decisions in the matters before hearing us regarding Her Honour's disqualification from the proceeding, we note the oppressive effect of the orders, and the imminent threat posed by the self-executing order Her Honour has made in paragraph 2 of her orders, without giving us an opportunity to be heard. The order was relevantly made without an application, let alone any evidence justifying its necessity. It sets an unjustifiably short deadline in circumstances where no benefit arises from such stringency. It is self-evident that the purpose underpinning the orders is to create an arbitrarily strict qualification to the exercise of rights and privileges that are available without restriction (except that they may not be abused to create oppression for others) to litigants in hearings conducted by competent, independent and impartial judges.
Moreover, the orders and the reasons have the implicit effect of determining that the Respondents may not call any witnesses or seek any other orders in the proceeding. The appropriateness or necessity of such measures ought to have been raised with the parties when Downes J first considered them.
Many of the matters decided by Downes J involve the exercise of an evaluative judgment. Not only does the process usually involve a fair and public hearing so affected parties may address the Court, which we were denied, in this case, we have not been heard at all.
We plan to amend the interlocutory application we had lodged (which was improperly rejected by the registry on 17 June 2025) to additionally seek an urgent hearing for our application seeking Her Honour’s recusal and orders concerning other pressing matters, including those that have arisen following the hearing on 17 June 2025.
To clarify, we do not imply that it is necessary or preferable to file an application seeking a judge’s recusal (see QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15, Gordon J at [88]). We simply intend to seek the urgent separate listing of the recusal application through the interlocutory application. We had intended the same through the directions sought by my email on 17 June 2025, contrary to Her Honour's interpretation in Victorian Legal Services Board v Kuksal (No 2) [2025] FCA 646 at [11].
We request Her Honour to reserve half a day (4 hours) on 30 June 2025 (Downes J had previously advised that she was available to hear the parties on that date) for the hearing of our application seeking Her Honour's recusal. To avoid ambiguity, we note that we require the stipulated time to make the application. The time doesn’t account for the participation of other parties. Although, in our experience, the Applicants take no position in respect of our recusal applications; at least not legitimately at the time they are heard (though they often find illegitimate ways of criticising them for their unjust enrichment after the fact).
For the reasons referred to above, though we do not believe it was appropriate for Downes J to make further orders in the proceedings before hearing our recusal application after we had indicated that we believe Her Honour is disqualified from presiding over the proceedings, to avert the imminent threat presented by one of Downes J’s oppressive and unjust orders, we request Downes J to set aside the order specified in paragraph 2 of her orders and amend the order in paragraph 4 of her orders to remove any reference to order 2.
We commit to lodging the interlocutory application by no later than 5:00 pm on Wednesday, 25 June 2025 and lodging an affidavit setting out the grounds for the urgent listing of the recusal application on 30 June 2025 as per the same deadline, given Downes J provides the reasons requested through this email by 5:00 pm on 23 June 2025 (or within 48 hours of the publication of the reasons, otherwise). This assurance is meant to relieve against any concern regarding the timeliness of the lodgment of the interlocutory application.
For clarification, we do not imply that the other orders made by Downes J in either proceeding are just, reasonable or error-free. We intend to raise our grievances in relation to them in the grounds for Her Honour's recusal. We have not asked for their amendment because it is inappropriate for Her Honour to make further orders in the proceeding before hearing our application. Moreover, as we have expressed above, orders of the sort made by Downes J today, ought not be made without a hearing of the relevant issues.
We will also file a Constitutional Notice in VID 642/2025, which will raise issues underpinning the orders made by Meagher and Downes JJ in the proceeding, in addition to paragraphs 5-7 of the attached (amended) Constitutional Notice next week.
We thank Downes J for her urgent consideration of the matters raised in this correspondence. Please acknowledge its receipt as soon as possible.
Sincerely,
Shivesh Kuksal
(Emphasis original.)
39 My chambers responded at 4.18 pm to Mr Kuksal’s email stating that the covering email which attached the orders constituted the reasons for the orders.
40 Although Mr Kuksal’s email stated that the respondents’ interlocutory application was “improperly rejected by the registry on 17 June 2025”, that application was not lodged for filing on that date. Rather, Ms Xu emailed the registry on 17 June 2025 at 1.49 pm in relation to an interlocutory application that the respondents were “intending to file” and seeking that the filing fee be waived in accordance with regulation 2.11(1)(c) of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth). The registry advised Ms Xu that:
Dear Ms Xu
I refer to your enquiry below regarding the attached interlocutory application you intend to file, and your request to have the filing fees waived on the basis that a contempt proceeding is a criminal matter.
I note the Federal Court has a Federal Crime & Related Proceedings National Practice Area. Contempt proceedings fall under the latter ‘Related Proceedings’ umbrella and are a civil matter.
For more information, please see the following link: Federal Crime and Related Proceedings National Practice Area (NPA) - Home page
As you will note, the Federal Court has jurisdiction to hear and determine ‘various crime-related civil proceedings including … applications seeking a declaration and punishment for contempt.’
I refer you to the Full Court decision in relation to a contempt proceeding of Mensink v Registrar of the Federal Court of Australia [2024] FCAFC 124 where Justices Abraham, Hespe and Neskovcin, at paragraph [29], confirmed "It is important to recall that these are civil proceedings, albeit of a criminal nature. This is not a criminal proceeding."
Thus, the filing fees for the filing of an interlocutory application for contempt cannot be waived under r 2.11(1)(c) of the Federal Court and Federal Circuit and Family Court Regulations 2022. Such filing does not fall within the scope of this provision.
Payment for the interlocutory application may be made during lodgement via the usual means on the eLodgment service. Alternatively, if you are eligible for an exemption due to Financial Hardship or meeting other criteria, you may provide the relevant application alongside your interlocutory application for consideration.
…
41 Further, although Mr Kuksal’s email referred to a constitutional notice being filed by the respondents in the collateral proceeding, one was never filed.
42 The respondents lodged an interlocutory application for filing in the bankruptcy proceeding on 23 June 2025 at 4.25 pm. The interlocutory application dated 23 June 2025 included, as Annexure A, the (unfiled) interlocutory application dated 17 June 2025.
Listing the recusal application for 1 July 2025
43 Prayer 1 of the respondents’ interlocutory application dated 23 June 2025 sought that:
The Court schedule an urgent hearing of the Respondents’ application seeking the recusal of Justice Downes from the current proceeding and the related proceeding VID 642/2025 on 30 June 2025 or the earliest date thereafter.
(Emphasis added.)
44 The recusal application was listed for hearing on 1 July 2025 at 10.00 am, being a date on which I understood that the parties were available. Further, the applicants had indicated that 30 June 2025 was not suitable for their counsel.
45 This listing was notified to the parties by email from my chambers on 24 June 2025 at 8.09 am.
46 On 24 June 2025 at 6.29 pm, Mr Kuksal transmitted an email which stated (inter alia):
… We wish to also advise the Court that we are unavailable for a hearing on July 1, 2025 (we note that we weren’t asked if we were unavailable before the Court scheduled the hearing on July 1, 2025 and we had requested that the hearing be listed on June 30, 2025). If the Court requires, we will file additional evidence in this respect…
(Emphasis original.)
47 On 25 June 2025 at 8.30 am, my chambers responded to this email advising that the listing on 1 July 2025 was “the earliest date” after 30 June 2025, being the hearing date sought in prayer 1 of the respondents’ interlocutory application dated 23 June 2025. The respondents were advised that “[u]nless there is a good reason provided as to why [the application] cannot proceed on 1 July, the hearing will proceed at 10am on 1 July 2025”.
48 On 26 June 2025 at 11.46 am, Ms Xu sent an email on behalf of the respondents which included the following statement:
We emphasise that we are unable to attend the hearing on 1 July 2025 and note that we consider Her Honour’s interpretation that, in requesting the hearing to be listed on 30 June 2025 or the earliest date thereafter, we somehow waived our legitimate expectation to be consulted about our availability before the Court finalised the listing of the matter, to be manifestly unreasonable.
49 No reasons were provided in Ms Xu’s email as to why any of the respondents (who are three individuals each representing themselves) were “unable to attend the hearing on 1 July 2025”.
50 On 30 June 2025 at 2.22 pm, Ms Xu sent an email to my chambers which stated:
… If Her Honour requires the Respondents to make the application orally during the hearing, Mr Kuksal will rely on the contents of the attached affidavit and its annexures in making the application. As set out in the affidavit, I am unable to attend the hearing tomorrow.
…
(Emphasis original.)
51 That email also purported to attach an affidavit affirmed by Ms Xu “today (1 July 2025)” and “lodged with the registry earlier today” (although the email was sent on 30 June 2025). This affidavit was rejected for filing by a Judicial Register of this Court as set out below.
52 No reasons were provided by Mr Kuksal or Mr Ansell as to why they were “unable to attend the hearing on 1 July 2025”.
Request that correspondence is directed to my chambers through the registry
53 On 25 June 2025, the parties were requested to send all future correspondence in the proceedings to the Queensland registry, marked to the attention of my chambers. This request was made due to the number, length and content of unsolicited emails which had been sent by the respondents to my chambers since I became the docket judge in the proceedings.
54 Mr Kuksal sought to clarify this request by email on 25 June 2025 at 12.43 pm sent to my associates’ email address. This email stated:
Dear Associate,
We will reply to the substance of the correspondence shortly. However, to ensure that we act according to Downes J’s directions, could you please confirm whether Her Honour wishes the parties to address emails only about the interlocutory application to the Queensland registry or for all matters concerning the proceedings?
Furthermore, for the matters in respect of which the parties are directed to address the Queensland registry, does Her Honour still wish for us to include her chambers in the correspondence?
Thanks for your assistance.
…
55 The registry responded to Mr Kuksal at 2.21 pm on 25 June 2025 as follows:
Dear Mr Kuksal
Re Proceedings VID222/2025
We have been asked to respond to your email below.
Her Honour has asked that all future correspondence in respect to these proceedings be directed to the Qld Registry by this email address only and not copied to Her Honour’s Associates.
Kind regards
(Emphasis original.)
56 Notwithstanding this email, Mr Kuksal and Ms Xu (on behalf of the respondents) sent emails to my associates’ email address. The first of these emails was sent by Ms Xu on 26 June 2025 at 11.46 am.
57 Following receipt of Ms Xu’s email, an automated email response was set up to respond to any emails sent by the respondents to the email address of my associates. That response stated:
Dear parties
As previously advised, please direct all correspondence in this matter to the Queensland Registry email, marked for the attention of the chambers of Justice Downes.
Please do not directly email this email address.
Kind regards
58 Upon continuing to email my chambers directly, the respondents received this automated email response five times. The automated email response replied to correspondence sent by the respondents on 30 June 2025 at 2.23 pm, 2.31 pm, 2.54 pm, 3.29 pm and 3.39 pm.
59 Upon continuing to receive the automated response, Mr Kuksal then sent emails to my associates’ email address using a different email address. Seven emails were received from Mr Kuksal’s alternative email address on 30 June 2025 at 4.14 pm and 4.25 pm, 1 July 2025 at 9.26 am, 3.05 pm and 4.25 pm, and 2 July 2025 at 1.05 pm and 2.38 pm. The email sent on 1 July 2025 at 3.05 pm raised a complaint about my request that the parties correspond with the registry.
60 Mr Kuksal’s alternative email address was then included in the automated email response. The automated email response replied to correspondence from Mr Kuksal’s alternative email address on 2 June 2025 at 2.38 pm.
61 After my request on 25 June 2025 that all parties should address correspondence in the proceedings to the Queensland registry marked for the attention of my chambers, the applicants have complied with that request.
Rejection of material by a Judicial Registrar prior to the 1 July 2025 hearing
Rejected 23 June 2025 affidavit
62 The email sent by Ms Xu to my chambers at 5.15 pm on 23 June 2025 attached an affidavit by Mr Kuksal affirmed on 23 June 2025. The affidavit of Mr Kuksal was lodged for filing on 23 June 2025. It was rejected for filing by a Judicial Registrar of this Court. On 24 June 2025, correspondence to this effect was transmitted to the respondents setting out the reasons that the Judicial Registrar had rejected the affidavit of Mr Kuksal for filing.
Rejected 30 June 2025 documents
63 As set out above, on 30 June 2025, the respondents lodged an affidavit of Ms Xu and a further constitutional notice in the bankruptcy proceeding. These documents were also directly emailed to my chambers (and to the applicants). A Judicial Registrar of this Court rejected the filing of both documents. A letter setting out the Registrar’s reasons for rejecting those documents was sent to Mr Kuksal and Ms Xu on 30 June 2025 at 4.12 pm.
First hearing of recusal application on 1 July 2025
64 The hearing on 1 July 2025 proceeded before me. Both Mr Kuksal and Mr Ansell appeared at the hearing on 1 July 2025 by videoconference, as did counsel for the applicants. Although Ms Xu had foreshadowed that she was unable to appear at the hearing on 1 July 2025, she joined the hearing by telephone. I was informed by the other respondents that Ms Xu was unable to attend the hearing due to work commitments, but that Ms Xu was able to listen to the hearing.
65 Mr Kuksal commenced the hearing by seeking an adjournment on the basis that the respondents were unprepared to make the recusal application. Mr Kuksal cited two reasons for this: first, that Ms Xu was not participating in the hearing, and secondly, that the registry had improperly rejected a number of documents filed by the respondents that they sought to rely upon in relation to the application, which caused prejudice to the respondents. Mr Kuksal also submitted that it would be inappropriate if I was to determine the issues regarding the rejection of the documents.
66 After a somewhat lengthy hearing at which Mr Kuksal spoke for the respondents, the result was that I adjourned the hearing of the recusal application to a date to be fixed. I also indicated that I would attempt to arrange for the issues raised by the respondents in respect of their rejected lodgements to be heard by another judge prior to the hearing of the recusal application. My attempts proved to be successful.
Hearing on 8 July 2025 before Justice Lee
67 The complaints raised by the respondents on 1 July 2025 regarding the registry’s rejection of their affidavits were heard by Lee J on 8 July 2025. Lee J also heard the interlocutory applications filed in the collateral proceeding and the respondent’s interlocutory application in the bankruptcy proceeding (other than paragraphs 1 and 2).
68 His Honour delivered ex tempore reasons on 8 July 2025, which were published in a form revised from the transcript on 14 July 2025: see Kuksal (Interlocutory Matters). The application by the respondents for judicial review of the decision of the Judicial Registrar to reject certain documents was dismissed.
69 On 9 July 2025, Lee J also dismissed the respondents’ interlocutory application dated 23 June 2025 insofar as that application sought:
(1) the relief sought in prayers 5 and 6 of the application;
(2) the relief sought in Annexure A to that application (being all of the relief sought in the interlocutory application which was emailed on 17 June 2025).
The recusal application then listed for 17 July 2025
70 On 4 July 2025, an email was transmitted to the parties by the Queensland registry on behalf of my chambers, advising the parties that the recusal application was listed for half a day on Thursday, 17 July 2025 at 10.00 am, being a date that both the applicants and the respondents had indicated that they were available. That email also provided:
The respondents are requested to file a statement of the grounds relied upon in support of the recusal application, as well as any written submissions or further affidavit material that they wish to rely upon, by 2.00 pm on Wednesday, 16 July 2025.
(Emphasis original.)
71 The respondents did not file a statement of the grounds relied upon in support of the recusal application and nor did any of the respondents file written submissions or further affidavit material as requested.
Second hearing of the recusal application on 17 July 2025
72 The recusal application was listed for half a day, commencing at 10am, with another matter being listed for 2pm. When the hearing commenced at 10.00 am by Microsoft Teams, none of the respondents had joined online. A few minutes after the matter had been called for hearing, and steps were taken to check if any of the respondents were online, I made an order dismissing the recusal application as the respondents had failed to appear and had not provided any written submissions in support of their application.
73 Shortly after the order was made, Mr Kuksal and Ms Xu joined the hearing by videoconference (Ms Xu was, according to Mr Kuksal, in the same room as him). It also appeared that Mr Ansell had joined the hearing by telephone call. As a result, I vacated the order that dismissed the respondents’ recusal application and invited the respondents to make any oral submissions that they had in support of the recusal application.
74 Mr Kuksal submitted that he and Mr Ansell sought my recusal on the basis of actual bias, whereas Ms Xu relied on a reasonable apprehension of bias. It was stated that Ms Xu would rely upon the same grounds as Mr Kuksal and Mr Ansell. The material relied upon by the respondents was all transcripts of hearings in the bankruptcy proceeding, all email correspondence between all judicial officers and the parties in the bankruptcy proceeding and certain articles which had been published by “Lawyers Weekly”, and which were provided by Ms Xu by email to the registry during the hearing.
75 When he commenced his oral submissions, Mr Kuksal stated that he would “endeavour to cover all the matters that [the respondents] collectively thought were relevant to the application”. However, Mr Kuksal indicated that Mr Ansell and Ms Xu “may or may not wish to address the court separately”. I stated that some time would need to be left to hear from them as well.
76 At about 11.30 am, the following exchange occurred:
HER HONOUR: Just before you go on – just before you go on, Mr Kuksal. We’ve only got until 12.45. So I know you’ve got five things you want to talk about. I’m just letting you know that.
MR KUKSAL: Yes, it will go - - -
HER HONOUR: And if it’s the case that Mr Ansell and Ms Xu want to say anything, then you probably only have one more hour. So it’s a matter for you which ones you want to focus on, but you don’t have to repeat yourself. So, I’m going to be reading the transcript - - -
MR KUKSAL: I’m not repeating.
HER HONOUR: No, but I’m just saying you don’t have to emphasise things or go over things again. I will read the transcript from today carefully. And so, provided you cover your five points, that would be helpful to me.
MR KUKSAL: Okay. Okay. Thank you for that indication. So, I’m not going to read from the transcript then. I will simply point out what I was – what I would like your Honour to consider in the transcript, if that’s okay.
HER HONOUR: Yes, please.
77 At about 12.08 pm, this exchange occurred:
HER HONOUR: Sorry, Mr Kuksal, why is this relevant to the recusal application?
MR KUKSAL: Because - - -
HER HONOUR: Are you going to rehearse what you said in front of Lee J? No.
MR KUKSAL: I don’t know whether I said that before - - -
HER HONOUR: No. What I’m trying – I’m just conscious that you’ve got about 22 minutes left, so I want to make sure I understand all the arguments. That’s all.
78 Later in the hearing, I indicated to Mr Kuksal that the hearing was supposed to end by 12.45 pm, but that I would continue until 1 pm. At no time during the hearing did either Mr Ansell or Ms Xu make any oral submissions or indicate to me that they wished to interrupt Mr Kuksal. As Ms Xu was in the same room as Mr Kuksal, she could have stepped forward and asked to be heard but she did not.
79 By email received on 21 July 2025, Ms Xu (but not Mr Ansell) asserts that Mr Ansell’s microphone was muted during the hearing. However, even if that is so, Mr Ansell could have sent a message to Ms Xu at any time, and asked for her to request that he be permitted to speak.
80 Importantly, Ms Xu and Mr Ansell had ample opportunity to provide written submissions prior to the hearing but elected not to do so.
81 After 1.00 pm and when I was about to adjourn, Mr Kuksal said that Ms Xu “wanted to say something”. However, I indicated that it was too late for Ms Xu to make oral submissions and adjourned the proceeding.
Directions made about further material
82 During the hearing, Mr Kuksal indicated that the respondents wished to file further material which was “captured in the correspondence to Bennett J’s chambers on 16 May”, and which related to prayer 2 of the interlocutory application. Mr Kuksal submitted that this material and a list of authorities could be sent “in the next hour or so”. He also said it would be sent “imminently”. He also referred to an amended notice of objection which “we will file today”. He later repeated that, “We can file the amended notice of objection today, yes”.
83 Mr Kuksal also referred to an affidavit of himself which had been affirmed that morning and which he believed Ms Xu “has already sent”. Mr Kuksal submitted that the affidavit “summarises the evidentiary basis upon which we are particularising the grounds in the notice of objection”.
84 Based on these submissions, it appeared that the respondents’ further material would be provided that day (that is, 17 July). Mr Kuksal accepted that, and said “that’s what our plan is”.
85 The applicants indicated that they would like to provide submissions about the proposed adjournment of the creditor’s petition, and they could do it by close of business on 18 July 2025.
86 Mr Kuksal then submitted that the “contempt application” has to be decided, and that the respondents would “launch the statement of charge also latest by tomorrow”. There was also reference to an affidavit of Mr Flitner which would be relied upon.
87 Following this further exchange, I then made an order that any further material which the respondents wished to rely upon to seek the order in prayer 2 of the interlocutory application be filed and served by 4.00 pm on 17 July 2025. At Mr Kuksal’s request, this was then changed to 4.00 pm on 18 July 2025.
88 I then attempted, without success, to hear from the applicants as to whether they wished to respond to that material, and by when. I am uncertain as to whether the applicants’ counsel could not hear me, as the hearing was conducted remotely, but I did not receive a response to my inquiries. After the hearing had concluded, the applicants requested by email to the registry to have until 1.00 pm on 21 July 2025 to respond. Although this was opposed by the respondents, I made an order in those terms in chambers as it was appropriate that the applicants be given an opportunity to be heard on the issue of whether the hearing of the creditor’s petition should be adjourned.
89 Since the orders were made on 17 July 2025, the respondents have sought an extension of time to file and serve their material, being until 10.00 am on 22 July 2025. I have made that order in chambers and also extended the time for the applicants to file any submissions in response to 9.00 am on 23 July 2025.
Recusal application
Applicable principles to recusal applications
90 The principles relating to recusal applications on the basis of actual and apprehended bias were helpfully summarised by Wigney J in Dunstan v Orr [2022] FCA 1006 at [62]–[77] as follows:
Actual bias
Actual bias “exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant”: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 134E (North J, citing Wannakuwattewa v Minister for Immigration and Ethnic Affairs (unreported, Federal Court, North J, No VG451/1994, 24 June 1996)) and Singh v Minister for Immigration and Ethnic Affairs (unreported, Federal Court, Lockhart J, No 902/96, 18 October 1996). The question is not whether a decision-maker’s mind is blank, or whether there is an “absence of any predisposition or inclination for or against an argument or conclusion”; rather, the “state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [71]-[72] (Gleeson CJ and Gummow J); see also Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 at 576 (Dawson J).
Actual bias is usually difficult to prove: Sun at 134F-134G. It is also an allegation that “is not to be made lightly”: Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 424; [2001] FCA 565 at [79] (Stone J). It requires a subjective assessment of the state of mind of the judge in question: Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [33]. A “finding of bias is a grave matter, different in kind from a finding of mere error, or even wrong-headedness, whether in law, logic, or approach”: Sun at 127C (Burchett J). Courts have rarely found actual bias to exist, principally because “a reasonable apprehension of bias suffices to disqualify a judicial officer” and where “actual bias exists, reasonable apprehension of bias will also exist and, consequently, courts concerned with supervising the application of the requirements of natural justice have not had to go so far as to find actual bias”: Sun at 134F (North J).
Apprehended bias
In Rush v Nationwide News Pty Limited (No 8) [2019] FCA 1382 at [16]-[29], I summarised and discussed the applicable principles where a litigant applies for a judge to disqualify himself or herself on the grounds of apprehended bias. What follows is an adaptation of what was said in that judgment.
The relevant principles in relation to apprehended bias are well-settled. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, Gleeson CJ, McHugh, Gummow and Hayne JJ conveniently summarised the principles in the following terms (at [6]-[8]):
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
(Footnotes omitted.)
The two-step test in Ebner requires the identification of what might affect the judge’s impartiality and its logical connection with the possibility of departure from impartial decision-making in the case at hand.
The fair-minded lay observer is “postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues”: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [12]. While the fictional or hypothetical observer is not a lawyer and is not assumed to have a detailed knowledge of the law, they are taken to be reasonable and to not be “wholly uninformed and uninstructed about the law in general or the issue to be decided”: Johnson at [53] (Kirby J, citing R v George (1987) 9 NSWLR 527 at 536 (Street CJ)). It is necessary to attribute to the fair-minded lay observer knowledge of all of the circumstances of the case: CUR24 v Director of Public Prosecutions (2012) 83 NSWLR 385; [2012] NSWCA 65 at [39].
The “reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice”: Johnson at [13]. That includes “the exigencies of modern litigation” and modern case management practices: Johnson at [13]. The plurality in Johnson noted the following in that regard (at [13]):
… At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. …
Similarly, in British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283; [2011] HCA 2, Heydon, Kiefel and Bell JJ referred to the active role a modern judge is likely to play in case management and said (at [140]) that “[t]rial judges are frequently required to make rulings excluding irrelevant and prejudicial material from evidence [and] [r]outine rulings of this nature are unlikely to disqualify the judge from further hearing the proceeding”.
In Doggett v Commonwealth Bank of Australia [2019] FCAFC 19, the Full Court (Kerr, Davies and Thawley JJ) said as follows in relation to claims of apprehended bias based on rulings in interlocutory proceedings or judgments (at [11]):
Claims of apprehended bias arise not infrequently, as they have in this appeal, in respect of interlocutory proceedings. The usual position in relation to interlocutory proceedings is that an apprehension of bias is not per se manifested by an unfavourable finding. That is because often there will be instances prior to a final decision where a judge will require steps to be taken or not taken which disappoint one side or another in a proceeding. It is inherent in the interlocutory process that such preliminary decisions are made. Unfavourable findings, in such circumstances, are not to be taken by a fair-minded person as an expression that the judge has other than an impartial and unprejudiced mind in relation to the substantive proceeding. …
I should add in this context that in AJH Lawyers Pty Ltd v Careri (2011) 34 VR 236; [2011] VSCA 425, the Court of Appeal of the Supreme Court of Victoria, noted, amongst other things, that while judges should normally give an applicant reasonable opportunity to make submissions, “[j]udges do not have to devote unlimited time to listening to unmeritorious arguments … [s]ometimes, a brief hearing will suffice” (at [25], citing Gleeson CJ in Antoun v R (2006) 224 ALR 51; [2006] HCA 2 at [22]).
In Re J.R.L.; Ex parte C.J.L (1986) 161 CLR 342; [1986] HCA 39, Mason J said the following in relation to allegations of apprehended bias based on the conduct of a judge during the litigation, which would include statements and findings made in interlocutory judgments (at 352):
It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
(Footnotes omitted.)
In the same case, Wilson J said (at 359-360):
A court of review must be careful not to exaggerate the significance of actions or statements made by a judge in the course of a proceeding. There must be “strong grounds” (Reg. v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd.) for inferring the existence of a reasonable suspicion.
(Footnote omitted.)
The requirement that an apprehension of bias, based on judicial conduct, be “firmly established” was also emphasised in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31 at 100 (Gaudron and McHugh JJ) and British American Tobacco at [45], where French CJ said it “gives content to the requirement that an apprehension of bias, in that class of case, be reasonable” (see also [71] (Gummow J)). French CJ and Gummow J were in dissent in British American Tobacco, though the dissent mainly turned on the application of the facts to the relevant principles.
Apprehended bias will not generally be established by “pointing to adverse findings” in the judgment, even where the findings involve strong adverse credit findings: Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 at [234] (Ward JA, Basten JA and Emmett AJA agreeing). Similarly, the fact that “a judge has not accepted submissions, or has taken a view of evidence in a way that one of the litigants disagrees with or asserts is wrong in principle, is not enough to establish a reasonable apprehension of bias”: Knaggs v Director of Public Prosecutions (NSW) (2007) 170 A Crim R 366; [2007] NSWCA 83 at [95]; see also SZCOS v Minister for Immigration & Citizenship [2008] FCA 570 at [36]; Spalla v St George Wholesale Finance Pty Ltd [2006] FCA 416 at [14]; DOQ17 v Australian Financial Security Authority (No 2) (2018) 363 ALR 681; [2018] FCA 1270 at [33]. In Hamod v State of New South Wales (No 11) [2008] NSWSC 967, Harrison J said (at [20]) that unfavourable decisions against a party “are not, and can never be, without more sufficient to support or establish the existence or manifestation of an objective apprehension of bias”.
Where “numerous separate aspects are relied upon to suggest a reasonable apprehension of bias, it will usually be necessary to assess the individual elements separately and then cumulatively”: Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240 at [176] (Basten JA, with Allsop P and Macfarlan JA agreeing); see also Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [114]; IOOF Australia Trustees Ltd v SEAS Sapfor Forests Pty Ltd (1999) 78 SASR 151; [1999] SASC 249 at 192; Tarrant J, Disqualification for Bias (Federation Press, 2012), 301.
(Emphasis original.)
91 In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Gleeson CJ, McHugh, Gummow and Hayne JJ), the plurality observed at [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.
Consideration
Grounds advanced by the respondents at the recusal hearing
92 The respondents identified five grounds for my recusal, being:
(1) there is a reasonable inference that I sought to obstruct the respondents’ enforcement of their rights for the improper purpose of either pursuing a policy or ideological objective or pursuing a personal interest or benefit. This was stated to include the “mitigation of embarrassment or distress to government bodies as a derivative … [as] reciprocal consideration”;
(2) I have conducted the proceeding in a manner that is arbitrary and is unreasonable, because there are contradictory and inconsistent directions that have been made which are not innocent but are actuated by the policy objective or to gain an improper benefit;
(3) I have failed to conduct the proceedings in a way that complies with my obligations at law, including to maintain public confidence in the administration of justice;
(4) I have acted as an advocate for the applicants and made decisions to penalise the respondents; and
(5) the manner that the proceedings have been conducted has caused material prejudice to the respondents in the proceedings and has caused damage to the reputation of the respondents.
93 Mr Kuksal outlined specific conduct that the respondents relied upon in support of these grounds, which is addressed below. As Mr Kuksal spoke for about three hours and no written submissions were filed by the respondents, I have divided the impugned conduct into categories.
94 I observe that, as to grounds 1 and 2, the “policy or ideological objective” and “personal interest or benefit” were not identified by the respondents.
Description in Kuksal No 2 about communications between respondents and my chambers
95 The respondents referred to Kuksal No 2 and submitted that “the wording that your Honour used [in the judgment] was that we sent multiple emails to your Honour’s chambers that exhibited voluminous documents”.
96 The relevant paragraphs of Kuksal No 2 state at [4] and [5]:
… The parties were requested to provide draft orders and any affidavit material not yet filed by 2.00 pm on 16 June 2025.
In response to that request, the applicants provided available dates for the hearing of the creditor’s petition which were included in their draft order. The respondents did not respond to that request with either a draft order or any further affidavit material. Instead, the respondents sent numerous emails to my chambers which included various attachments and embedded links…
(Emphasis added.)
97 No reference is made in these reasons to “voluminous documents”. Rather, the reasons refer to “various” attachments.
98 The respondents submitted that, rather than “numerous emails”, they “sent one email in response to [the] request [from my chambers]” which had no attachments and no embedded links. However, as the above chronology of email exchanges with my chambers shows, the factual statements in Kuksal No 2 about the respondents’ emails to my chambers, when read as a whole, are accurate.
99 The respondents then referred to the remaining part of [5] which stated:
As is my usual practice, I did not have regard to these ex parte communications. I also directed my chambers staff not to open the embedded links in those emails or print out any of the attachments which came with those emails.
100 The respondents submitted that the assertion that I was unaware of the contents of the emails was “demonstrably false” because the “assertions” that I made during the hearing on 17 June 2025 “contradict that assertion”. They also submitted that it “is a gross mischaracterisation which we say is also dishonest”. However, the allegation of dishonesty is baseless, and is rejected. While I accept that the reference to “ex parte” was an error (see below), the statement in the reasons, read in context, was a statement that I did not have regard to the numerous emails to my chambers which included various attachments and links, and which were not responsive to the invitation sent by my chambers. As to this, I said something similar during the case management hearing on 17 June 2025 for the purpose of discouraging such communications.
101 The respondents described the statement in [5] of Kuksal No 2 as “perpetuating a slanderous allegation that has previously been made against us about improperly sending voluminous documents or relying on voluminous documents that may be relevant [to what] Gorton J has improperly sought to perpetuate”. I am not sure what to make of this submission as I do not know what previous allegation has been made against the respondents, or how this is relevant to the recusal application. In any event, I did not refer to “voluminous” documents in the reasons.
102 The respondents submitted that their communications were not “ex parte” as they did copy the applicants to their emails. They also submitted that, although the supporting creditors were not copied to their emails, this course had been acquiesced to by Bennett J and the supporting creditors had not otherwise been copied to date in correspondence with the Court. By this submission, the respondents appear to assume that I was privy to, and had read, all email communications in these proceedings between them and other judges, and that I had also read transcripts of all hearings conducted before other judges, prior to delivering Kuksal No 2. If so, that assumption is mistaken. Both proceedings were allocated to my docket on 11 June 2025 which was less than a week before the case management hearing on 17 June 2025, and the delivery of Kuksal No 2 later that day. As I explained to the respondents, not all communications between parties and other judges in the proceedings have been uploaded to the electronic court file. Finally, even if a previous judge adopted a particular practice when sending communications to parties, I am under no obligation to adopt a similar practice especially when I am unaware of it and the parties do not bring it to my attention.
103 Although the supporting creditors were not copied to the respondents’ emails, I accept that characterising the communications as “ex parte” in Kuksal No 2 was an error.
104 Contrary to the respondents’ submissions, however, this error was not made “in a manner that is recklessly indifferent to the prejudice that it causes” to the respondents “in pursuit of a purpose that is contrary or irrelevant to the performance of [my] duties”. As stated above, no purpose was identified by the respondents, and the circumstances do not demonstrate that the error was made in the manner described.
105 In any event, the respondents do not take issue with the fact of the error but rather contend that my characterisation of their communication as “ex parte” reveals actual bias as: (a) it was an unreasonable basis for refusing to consider matters raised by the respondents; (b) it revealed a disparity in how I treated the applicants and the respondents, as I did not refuse to consider the email sent by the applicants by characterising it as “ex parte”; and (c) it was a deliberate misrepresentation to justify why I did not go through the respondents’ correspondence.
106 In respect of (a) and (c), I did not (and do not) need to provide any explanation or justification for not reading emails sent to my chambers staff. Rather, the statement was made with the intention of discouraging future emails of this kind, and the reference to “usual practice” explains that the practice is a general one, rather than one adopted in this particular case. The reference to “ex parte” was not a deliberate misrepresentation; rather, it was a mistake. What it should have stated was “unsolicited” because that is what was intended.
107 In respect of (b), although the applicants also sent an email to my chambers prior to the 17 June 2025 case management hearing, this email was solicited by my chambers. There was therefore no disparity of treatment between the applicants and respondents, and my conduct was neither arbitrary nor unreasonable.
Description in Kuksal No 2 about the conduct of the proceedings
108 The respondents submitted that the manner in which I had described the history of the proceeding in Kuksal No 2 was “misleading”, “factually incorrect” and “colours the way in which [I have] presented or introduced the respondents”. As to this last submission, I am uncertain as to what this means or to whom I am “introducing” the respondents. In circumstances where the creditor’s petition was filed in late February 2025 and was only being set down for hearing in July 2025, I considered it to be necessary to explain the background facts. The recitation of these facts in Kuksal No 2 was neither misleading nor factually incorrect.
109 The respondents also submitted that describing the adjournment of the hearing of the respondents’ interlocutory application on 17 June 2025 on the basis that it was only provided shortly prior to the hearing in Kuksal No 2 is to “basically vilify us” for the “purpose of denying us our statutory right”. This was submitted on the basis that part of the relief sought was a subpoena, which can be raised orally without advanced notice, and because the contempt application against the applicants had been foreshadowed before a previous judge, such that the respondents did not “ambush” the other side.
110 As best as I can understand this submission, it takes a correct statement of factual events in Kuksal No 2 and asserts that they were stated in the reasons for a wrongful purpose. However, this submission is rejected: it is plain from my judgment that the purpose of identifying the events which occurred prior to and at the case management hearing in Kuksal No 2 is that they provided part of my reasons for making the orders which were made that day.
111 The hearing of the creditor’s petition was set down for hearing far enough away to allow the respondents’ interlocutory application to be heard, if appropriate and after hearing from the parties. There was nothing unfair, arbitrary or unreasonable about the manner in which the creditor’s petition was listed for hearing. No rights were being denied. To the contrary, the respondents’ desire to have the interlocutory application dealt with before the hearing of the creditor’s petition was facilitated by the orders which I made, rather than hindered.
112 Further, by the orders made on 17 June 2025, I gave the respondents what they sought: an opportunity to provide 10 pages of submissions (and not 5 pages, as proposed by the applicants) about why the interlocutory application should be heard and determined prior to the creditor’s petition. I did not shut out the respondents from raising the issues that they sought to ventilate.
113 The orders were also made in circumstances where submissions were made by the applicants seeking that the creditor’s petition be brought on for hearing expeditiously. As to this, there is substantial authority to support that approach: see, for example, Australia and New Zealand Banking Group Limited v James [2021] FCA 768 at [48]–[49] (Cheeseman J), and the cases cited therein. Lee J also supported such an approach: Kuksal (Interlocutory Matters) at [19] and [25]. Of course, setting matters down for hearing by a judge involves consideration of other matters on a judge’s docket.
114 Relatedly, the respondents complained that I cited Australia and New Zealand Banking Group Limited v James in Kuksal No 2 and submitted that the conduct of the respondents in that case was not like this case. However, I cited specific paragraphs of that decision, being paragraphs in which Cheeseman J cites relevant authority for the proposition which I state at [13] of Kuksal No 2. I drew no parallel between the facts in James and this case. This complaint is also misconceived.
Failure to deal with interlocutory application on 17 June 2025
115 The respondents also submitted that what occurred on 17 June 2025 was a “constructive dismissal” of their application for a subpoena to be issued by refusing to make the order, and I did not give reasons for this decision in Kuksal No 2. However, there was no such refusal to make this order on 17 June 2025; rather, the reasons for not dealing with the (unfiled) interlocutory application as a whole (of which the application for the issue of a subpoena was only one of several orders sought) are explained in Kuksal No 2. Not dealing with the interlocutory application at the case management hearing was a case management decision taken in the circumstances described in Kuksal No 2.
116 The respondents also submitted that, “if your Honour had actually heard the subpoena matter in accordance with our right, and indicated one way or the other, whether the court was open to issuing the subpoena, or whether the court wanted us to particularise the matters in the notice of objection, then that matter would have been dealt with on 17 June itself”.
117 This adds nothing to the previous submission concerning “constructive dismissal” and is not accepted for the same reason.
Preventing criticisms of the applicant’s counsel at hearing on 17 June 2025
118 During the case management hearing on 17 June 2025, which was conducted by Microsoft Teams, Mr Kuksal described the submissions by the applicants’ counsel as “misleading” and sought to make complaints about her conduct, including that they were in breach of the Barristers Conduct Rules. He and I spoke over each other a number of times during this part of the hearing, with the applicants’ counsel also trying to interject. It was chaotic, to say the least, and I brought it to an end, for that reason and because I did not regard the complaints being made about the counsel to be relevant to the issues at hand.
119 The respondents rely on my shutting this issue down at the case management hearing as being an “overreaction” which (as I understand the submission) demonstrates that I had read the respondents’ emails sent to my chambers and that this motivated me to stop complaints being made by the respondents about the applicants’ counsel “deliberately misleading the court”. However, it demonstrates no such thing; rather, it was a decision taken as part of keeping control of the court proceedings.
Inconsistency between emails of 12 and 17 June 2025
120 The respondents submitted that my chambers invited the parties to email unfiled affidavit material by an email on 12 June 2025 but then contradicted that statement on 17 June 2025 by stating that “if the parties wish to adduce evidence or make submissions, then that should not occur by email”. The respondents say that this shows that I did not wish to hear from the respondents or to read their emails, which demonstrates that I was acting as an advocate for the applicants.
121 However, this alleged inconsistency has arisen from the respondents misunderstanding the wording of the email dated 12 June 2025. The email did not invite the parties to email unfiled affidavit material without the need to file and serve that material in the ordinary course. It merely requests the parties to provide “any affidavit material not yet filed by 2.00 pm on Monday, 16 June 2025”. Further, the emails of 12 June 2025 and 17 June 2025 did not distinguish between the parties such that there was no disparity of treatment.
122 The statement in the 17 June email is also consistent with what I said during the hearing—namely, matters could be raised with me by filing an affidavit or written submissions, and making submissions in a hearing. It is therefore incorrect to say that my conduct shows that I do not wish to hear from the respondents at all.
Orders made on 20 June 2025
123 The respondents complain that I made the orders on 20 June 2025 because “on 16 June, we had provided your Honour’s chambers with the proposed orders that we had sought” and that I gave the applicants everything they wanted.
124 However, no proposed orders were provided by the respondents in either proceeding on 16 June 2025.
125 Further, as best I can understand the submission, this appears to be a reference to the email from Ms Xu which was sent in the collateral proceeding and dated 16 June 2025. However, although that email referred to the respondents’ intention to “lodge a more comprehensive application” for an urgent hearing (as did the attached letter from Mr Kuksal) and requested a hearing time of 1.5 days in that proceeding, no interlocutory application was ever filed in the collateral proceeding by the respondents.
126 Indeed, by the time that the orders were made on 20 June 2025, no application had been filed by the respondents in either proceeding.
127 As at 20 June, the only interlocutory application which the respondents appeared to wish to bring was the one in the bankruptcy proceeding which had not been lodged for filing, and which referred (inter alia) to the constitutional notice which needed to be, but had not been, served in accordance with r 8.12 of the Federal Court Rules, and which sought orders for contempt of court but which did not comply with r 42.12 of the Federal Court Rules. If it is that application to which the respondents are referring, then it could not have been heard urgently for these reasons alone.
128 For these reasons, there was no disparity of treatment between the parties.
129 Relatedly, the respondents also submitted that I prioritised the bankruptcy proceeding over the collateral proceeding when I had a “constitutional obligation” to decide the latter proceeding first. They submitted that it was “evident” that the collateral proceeding was completely hopeless and that I should have taken steps to set the collateral proceeding down for hearing earlier than I did.
130 However, as already noted, the respondents (by Ms Xu and Mr Kuksal) referred to an intention to file an interlocutory application in the collateral proceeding, which, as at 20 June, had not been filed.
131 Further, on 17 June 2025, after the case management hearing, the respondents notified an intention to seek my recusal from hearing both proceedings. Thus, although they notified an intention to apply for my recusal, the respondents now complain that I did not take steps to set down the collateral proceeding for hearing before me at an earlier time.
132 In any event, by the 20 June orders, I set down the interlocutory applications in the collateral proceeding for hearing ahead of the hearing dates of the creditor’s petition, and later requested that those applications be allocated to another judge in circumstances where the recusal application had not been heard and determined following its adjournment on 1 July 2025.
133 For these reasons, the respondents’ complaints are misplaced.
Hearing before Lee J
134 As matters transpired, the respondents’ desire to have their interlocutory application and the collateral proceeding dealt with was facilitated by the Court when they were allocated to Lee J for hearing, after the respondents requested that a different judge hear and determine the issues relating to the rejection of their affidavits by a Judicial Registrar. The hearing before Lee J occurred on 8 July 2025.
135 The respondents submitted to the effect that the reasons given in Kuksal No 2 prejudiced Lee J against them. Whether that is so is impossible for me to say based on the respondents’ submissions, and (in any event) it is not apparent how this is relevant to demonstrating actual or apprehended bias. I also note that, when Kuksal No 2 was delivered, it was not contemplated that a different judge would hear any aspect of these proceedings.
Conclusion
136 For these reasons, my case management of these proceedings to date, including the reasons that have been provided for case management decisions in those proceedings, provide no basis either individually or collectively for a finding of actual bias.
137 Even if any aspect of my case management could be said to be different to that which would have been taken by another judge in the same circumstances, or was erroneous, that is insufficient to amount to actual bias. Similarly, any error in the reasons given in Kuksal No 2 is insufficient to amount to actual bias. Further, for the reasons given above, any suggestion that I have acted in a manner which favours the applicants over the respondents, or that I have treated the parties differently, or that I have been unreasonable or have acted “arbitrarily” or as an advocate for the applicants, is without foundation when the facts are examined. Nothing that I have said or done in the course of the proceedings to date provides any basis for the claim by Mr Kuksal and Mr Ansell that I have prejudged their case or have any predisposition against them.
138 For the same reasons, none of the conduct articulated in the respondents’ submissions could be said to be capable of possibly causing a fair-minded lay observer to reasonably apprehend that I might not bring an impartial mind to the resolution of any question that might arise in this proceeding.
139 It follows that the relief sought in prayer 1 of the respondents’ interlocutory application dated 23 June 2023 will be refused. I will reserve the question of costs.
I certify that the preceding one hundred and thirty-nine (139) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Downes. |
Associate:
Dated: 21 July 2025