AZO24 v Registrar, Registry of New South Wales, Federal Court of Australia (No 3)
[2024] FCA 1191
•11 October 2024
FEDERAL COURT OF AUSTRALIA
AZO24 v Registrar, Registry of New South Wales, Federal Court of Australia (No 3) [2024] FCA 1191
File number(s): NSD 942 of 2024 Judgment of: NEEDHAM J Date of judgment: 11 October 2024 Date of publication of reasons: 14 October 2024 Catchwords: PRACTICE AND PROCEDURE – interlocutory application that judge not preside on any matters in the proceeding pending determination of the appeal for the proper administration of justice – reasoning that judge made decision against her not sufficient – order 3 of interlocutory application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AI Cases cited: AZO24 v Registrar, Registry of New South Wales, Federal Court of Australia (No 2) [2024] FCA 1004
AZO24 v Registrar, Registry of New South Wales, Federal Court of Australia [2024] FCA 1151
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2023] HCA 15; (2023) 409 ALR 65
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 16 Date of hearing: 11 October 2024 Counsel for the Applicant: Applicant was self-represented Counsel for the First Respondent: No appearance (service dispensed with) Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
NSD 942 of 2024 BETWEEN: AZO24
Applicant
AND: REGISTRAR, REGISTRY OF NEW SOUTH WALES, FEDERAL COURT OF AUSTRALIA
First Respondent
THOMAS STEWART, NATIONAL REGISTRAR, FEDERAL COURT OF AUSTRALIA
Second Respondent
ORDER MADE BY:
NEEDHAM J
DATE OF ORDER:
11 OCTOBER 2024
THE COURT ORDERS THAT:
1.Order 3 of the Interlocutory Application dated 27 September 2024 be dismissed.
2.Any application, including evidence in support, with respect to making a suppression order or a non-publication order under s 37AF of the Federal Court of Australia Act 1976 (Cth), be filed by 4pm on 14 October 2024.
3.The balance of the Interlocutory Application, and any application filed pursuant to order 2, be listed for hearing at 10:15am on 16 October 2024 for no more than 2 hours.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
EX TEMPORE REASONS FOR JUDGMENT
Revised from transcriptNEEDHAM J:
On 28 August 2024, I ordered pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth), until further order:
a.the identity of the applicant not be published or otherwise disclosed other than to court staff, any legal advisers retained by the applicant, the respondents and their lawyers.
b.the applicant be referred to by a pseudonym in any public notifications and disclosures of information in relation to the proceeding.
(the s 37AI order)
On 2 September 2024, I made orders in relation to the applicant’s application for judicial review filed on 18 July 2024. In that application, she sought that the registry accept an interlocutory application and supporting affidavit for filing. That application for judicial review was dismissed (see AZO24 v Registrar, Registry of New South Wales, Federal Court of Australia (No 2) [2024] FCA 1004).
Since then, the applicant has sought to appeal from that decision. On 1 October 2024, she sought orders from Nicholas J as Duty Judge that these proceedings be stayed until after her appeal is heard and determined, and that the s 37AI order, effectively, continue until after the appeal is heard and determined. Nicholas J dismissed the interlocutory application (see AZO24 v Registrar, Registry of New South Wales, Federal Court of Australia [2024] FCA 1151).
Section 37AI provides:
37AI Interim orders
(1)If an application is made to the Court for a suppression order or non‑publication order, the Court may, without determining the merits of the application, make the order as an interim order to have effect, subject to revocation by the Court, until the application is determined.
(2)If an order is made as an interim order, the Court must determine the application as a matter of urgency.
Accordingly, what remains in these proceedings is for me to determine any application under s 37AF “as a matter of urgency” (s 37AI(2)). The s 37AI order was made without any evidence being provided, but on the basis of a similar order having been made by Kennett J in proceedings NSD1036/2023.
Between 26 September 2024 and 3 October 2024, the Registry corresponded with the applicant and set down the question of the s 37AI order to be heard today, 11 October 2024. On 4 October 2024, a further interlocutory application was filed seeking the following orders:
1.An order to vacate or set aside orders number 1 and 2 made on 26 September 2024 pursuant to r. 30.11(f), 36.08(2) and (3) and 39.04 of the Federal Court Rules 2011 until after the appeal NSD1252/2024 is heard and determined, and also until after the appeal of related proceedings NSD1036/2023 in which a leave to appeal has been lodged (pending filing), so as not to cause prejudice to the proper administration of justice.
2.An order for a stay of execution of proceedings pursuant to r. 36.08(2) and (3) and 30.11(f) of the Federal Court Rules 2011 after the appeal NSD 1252/2024 is heard and determined, and because of the appeal of related proceedings NSD1036/2023 in which a leave to appeal has been lodged (pending filing), so as not to cause prejudice to the proper administration of justice.
3.An order that J Needham is to no longer preside on any matters in the proceeding pending the determination of the appeal NSD1252/2024 because of an order seeking prohibition of her presiding in the proceedings pending in the appeal, for the proper administration of justice.
4.An order that service is dispensed with for this application.
The respondents, Registrar, Registry of New South Wales, Federal Court of Australia as first respondent, and Thomas Stewart, National Registrar, Federal Court of Australia, the second respondent, have not appeared. I waived any requirements of service on the first respondent, not being a proper party, and the second respondent has filed a submitting notice. Given that order 3 of the interlocutory application sought that I no longer preside on any matters in the proceeding pending the determination of the appeal NSD1252/2024, it seemed to me appropriate to deal with this matter first, and so I vacated the order that the question of the s 37AI order be heard today and substituted a hearing on order 3. When the matter was called, the applicant appeared and submitted that it was not, as it appeared on its face, an application that I disqualify myself, but rather she sought a stay of the issue of the interlocutory suppression order made on 28 August 2024.
The applicant was asking that, effectively, I do nothing in these proceedings pending the outcome of the appeal from my decision, but also, it appears, until the outcome of any appeals from the decision of Kennett J to dismiss her application.
The applicant left the courtroom during preliminary discussion as to the scope of the hearing. As a result, she did not formally read the two affidavits in these proceedings; they being an affidavit of 27 September 2024 and an affidavit of 3 October 2024. The first affidavit goes through some of the procedural matters which have been traversed in these proceedings. The applicant deposes (by way of submission) that if I continue to preside on any matters in these proceedings where there is an appeal pending, it is not in the proper administration of justice that I do so. This submission appears to arise out of my listing of the s 37AI order after delivery of Kennett J’s decision in relation to the same matter in his proceedings. The applicant says that the “reason for J Needham suddenly wishing to revisit the orders made on 28 August 2024” is in “bad faith” (at [15] of the affidavit of 27 September 2024). The applicant further points to the fact I have made a decision against her as a reason for my not presiding on any further issues in these proceedings. That, of course, is not sufficient to remove myself from further hearing of other matters in relation to her.
While the applicant says that this is not an application to disqualify myself, for the avoidance of doubt I note that the test for an apprehension of bias requiring disqualification of a judicial officer was outlined in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2023] HCA 15; (2023) 409 ALR 65 at [37]-[38] (per Kiefel CJ and Gageler J):
The criterion for the determination of an apprehension of bias on the part of a judge was definitively stated in Ebner by reference to previous authority and has often been repeated. The criterion is whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The “double might” serves to emphasise that the criterion is concerned with “possibility (real and not remote), not probability”.
Application of the criterion was identified in Ebner, and has been reiterated, logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.
(References removed.)
There was no articulation by the applicant of any logical connection between the fact that I have made a decision against her, and an apprehended deviation from deciding the question of the s 37AI order on its merits.
In her affidavit of 3 October 2024, the applicant points to a letter from her GP, which was written on 5 June 2023, relating to what appears to be legal proceedings for perhaps personal injury, given that the letter refers to “an extension of the limitation period”. It does not relate to these proceedings, and it does not give any indication of her current medical situation. The applicant also provided a description and photographs of what is referred to as an optical device which she says I should take into account on the question of whether or not there has been surveillance at her property. This is something which relates to the initial proceedings before Kennett J, and not to the question of the review of the Registrar’s decision which was before me.
The applicant, as I have said, appeared before me today. She made an application that I do not continue to hear the matter but, as I have said, did not rely on any evidence. I have had regard to the evidence which was provided in support of the interlocutory application despite her not having stayed in the court to read it formally. Even if I were to take account of what is in those affidavits, there is nothing which would indicate that it would be appropriate for me to disqualify myself or to stay the proceedings pending the appeal.
I dismiss order 3 in the interlocutory application.
That leaves the balance of the interlocutory application, orders 1 and 2. As I have said, Nicholas J has already dismissed an application for a stay of execution in similar terms to order 2, and he has dismissed the application seeking that I not proceed to hear the s 37AI application. I will hear the applicant on those orders if she wishes to make any further submissions.
Otherwise, all that remains then is to make orders for the applicant to file any application she may wish to make under s 37AF(1) and any evidence upon which she seeks to rely in support of that order. Given the fact that she has been on notice for some time that this matter will be heard and that I was considering whether the interim order for anonymisation should be continued, I order that any such application, including evidence in support, be filed by 4.00 pm, Monday, 14 October 2024. If the applicant wishes to be heard on this matter, I list it for 10.15 am on Wednesday, 16 October 2024. If there is no appearance on that occasion, I will reserve my decision at 10.15 am.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Needham. Associate:
Dated: 14 October 2024
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