Federal Court of Australia

Scott v Scott (Recusal Application) [2026] FCA 1022

ORDERS

THE COURT ORDERS THAT:

1.    Order 1 of the Appellant’s interlocutory application dated 28 June 2026 (recusal

application) be dismissed.

2.    Order 2 of the recusal application be listed for hearing on 27 August 2026 in Adelaide at 10:15am ACST.

3.    Order 3 of the recusal application be dismissed.

4.    Costs of the recusal application hearing be reserved.

5.    Subject to the outcome of order 2 of the recusal application, the substantive appeal be listed for hearing on 27 and 28 August 2026 in Adelaide at 10:15am ACST.

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

REASONS FOR JUDGMENT

Delivered ex tempore, revised from transcript

NEEDHAM J:

1    This is a matter brought by interlocutory application by the appellant, Dr Susan Jane Scott, seeking that I be disqualified from case management of this appeal on the apprehension of bias, prejudice and prejudgment (recusal application).

2    The appellant has set out in a written submission her reasons for that application. While she has a number of complaints about how the Registry, both in South Australia and elsewhere, has dealt with her attempts to file documents, the only conduct which is attributed to me to support her application is a direction to the Registrar under r 2.27(e) of the Federal Court Rules 2011 (Cth) that documents not be accepted for filing. Dr Scott’s submission was that she is subject to an order of 10 November 2025 by McDonald J, which is in the following terms:

4. The parties not file further documents in these proceedings without the leave of the Court.

3    On 8 May 2026, one of the Registrars refused leave to file documents seeking a further stay, and I note parenthetically that the decision of McDonald J in which the above order was made was in the context of his refusing a stay of the primary decision of Bampton J of the South Australian Supreme Court of 29 July 2025. Those documents were refused for filing and I made a direction that the submissions sought to be filed on 1 and 4 June 2026 not be filed.

4    I was allocated the case management of this matter pursuant to s 25(2B) of the Federal Court of Australia Act 1975 (Cth). That section empowers me to make various decisions including case management matters and to make interlocutory orders, vary or set aside orders, and give directions about the conduct of an appeal.

5    As submitted by Dr Scott, she has, she says, no confidence in my decisions given my previous direction that documents not be accepted for filing without leave. The respondents contended that there were no substantive matters currently which needed to be determined in the case management hearing and that they saw no reason why the direction gave rise to an apprehension of bias in a fair-minded observer. The principles relating to actual and apprehended bias are well established and the appellant would be well aware of these as O’Sullivan J summarised them in his decision, Scott v Nimlaw Pty Ltd (No 1) [2024] FCA 1123. Those authorities include Charisteas v Charisteas [2021] HCA 29; (2001) 273 CLR 289 at [11] and Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337.

6    In Rindeklev v Commonwealth of Australia (Recusal Request) [2025] FCA 354, Colvin J said at [17] that:

In order to establish actual bias on the basis of prejudgment it must be demonstrated that the judge is ‘so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented’

(see Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507). His Honour continued that prejudgment of that kind must be firmly established: Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 100.

7    Regarding whether a fair-minded observer might have drawn the conclusion that I might not bring an impartial mind to the case management of these proceedings, Dr Scott relied on “Chapter III judicial powers” and the fact that the direction was an administrative one. She set out some authorities including the decision in Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348.

8    Taking all of what Dr Scott said into account, and acknowledging her disappointment about the refusal to file, I am not convinced that any fair-minded lay observer might draw the conclusion that I might not bring an impartial mind to the case management of these proceedings. More would be needed than merely a direction which is in accordance with order 4 of McDonald J of 10 November 2025, which order stands, given that there has already been an application to set it aside which was unsuccessful and that the draft notice of appeal annexed to Dr Scott’s affidavit of 19 January 2026 (accepted for filing on 16 March 2026), in which she sought to appeal from the whole of the judgment of McDonald J of 25 November 2025, upon which she relied in this application, has not been filed.

9    I dismiss order 1 of the recusal application.

10    I stand over order 2 of that application (that I be disqualified from hearing the appeal to the Full Court on 27 August 2026) to 27 August 2026. The matter will be determined then, first by me and then, secondly, if unsuccessful, by the Full Court (see QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 279 CLR 148 at [66] and [94] (Gordon J), [108] (Edelman J), [193] (Steward J agreeing with Gordon J); see also Jagot J at [311]-[314]).

11    I see no reason to deal with order 3, which seeks that r 3.04 of the Rules be applied to the refusal to file of 18 June 2026. That was the matter which was the subject of my direction and the proper way to deal with that would be not to file an interlocutory application in this appeal but by seeking review of that decision separately. I dismiss order 3.

12    As the recusal application is not finally determined, costs should be reserved to the hearing of the Full Court.

Associate:

Dated:    21 July 2026