Di Fede v BSGM Hospitality Services (SA) Pty Ltd - [2025] SADC 112

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master)
DI FEDE v BSGM HOSPITALITY SERVICES (SA) PTY LTD & ANOR
[2025] SADC 112
Judgment of Her Honour Judge Mackenzie
4 September 2025
COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - REASONABLE APPREHENSION OF BIAS GENERALLY
Appeal from an Associate Judge’s dismissal of an application to recuse himself from any further care or conduct of the proceedings on the grounds of apprehended or actual bias.
The appellant had brought an application for summary judgment. Prior to hearing the application the Associate Judge arranged for an email to be sent to all parties to notify them that the Associate Judge had taken the view that the defence filed did not have the status of sworn evidence, which triggered the respondents to file three affidavits. At the hearing the Associate Judge adjourned full argument on the application to provide the appellant (applicant) with time to consider the material filed by the respondents and to potentially file a responsive affidavit. At that hearing there were also exchanges between the Associate Judge and the parties about the difficulties for the applicant obtaining summary judgment in the face of factual disputes, and the potential adverse costs implications for him if he were unsuccessful. The Associate Judge also remarked about deficiencies in the defences of the respondents, and the respondents have since sought leave to file amended defences.
The Associate Judge listed the argument on summary judgment for a half-day on 27 February 2025. Prior to that argument the appellant made an application for the Associate Judge to recuse himself. The hearing of argument on the application for summary judgment was vacated and the recusal application was heard in its place. The appellant’s argument was principally that the email the Associate Judge had arranged to be sent, and his remarks favourable to the respondents at the earlier hearing, demonstrated actual bias by way of prejudgment or an apprehension of bias directed to coaching and assisting the respondents and condemning his application for summary judgment. The Associate Judge refused to recuse himself.
On appeal, the appellant seeks orders precluding the Associate Judge from further care or conduct of the principal proceedings. The respondents were excused from attending the appeal hearing. The appellant contends the Associate Judge erred in refusing to recuse himself on the grounds of actual or apprehended bias.
Held: Appeal dismissed. The Associate Judge’s conduct was not such as to constitute actual bias by way of prejudgment or to create a reasonable apprehension of bias in a fair-minded lay observer.
District Court Act 1991 (SA); Uniform Civil Rules 2020 (SA); District Court Civil Rules 2006 (SA), referred to.
Mallios v Commissioner of Police [2024] SASC 131; C v M [2021] SADC 29; Rana v Hyatt Regency Hotel Ltd [2007] SASC 7; Mossop Group Pty Ltd v 1KW Adelaide Pty Ltd [2018] SASC 186; DT v Chief Executive of the Department for Child Protection [2021] SASC 138; Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98; R. (De Vesci) v Justices of Queen’s County (1908) 2 IR 285; Webb v R (1994) 181 CLR 41; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; Ibrahim Bilgin v Minister for Immigration and Multicultural Affairs [1997] FCA 1022; Fox v Percy (2003) 214 CLR 118; Attorney-General v Sillem [1864] EngR 352; (1864) 10 HLC 704; Warren v Coombes (1979) 142 CLR 531; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; McDonald v Attorney-General (SA) [2023] SASCA 132; Johnson v Johnson (2000) 201 CLR 488; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Antoun v R [2006] HCA 2; British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283; Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427; Spencer v Commonwealth of Australia (2010) 241 CLR 118; Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117; Collins v Djunaedi [2016] SASCFC 48; Jennings v Police [2019] SASCFC 93; Cosenza v Roy Morgan Interviewing Services Pty Ltd [2020] SASC 65; Illman v Sterrey & Ors [2023] SASC 50; State of New South Wales v Spearpoint [2009] NSWCA 233; Stone v Moore (2015) 122 SASR 54, considered.

DI FEDE v BSGM HOSPITALITY SERVICES (SA) PTY LTD & ANOR
[2025] SADC 112
Introduction

This is an appeal against an Associate Judge’s refusal to recuse himself from any further care or conduct of the proceedings on the grounds of apprehended or actual bias.[1] The nub of Mr di Fede’s complaint on appeal is that the Associate Judge had “coached” and “assisted” the respondents in relation to Mr di Fede’s application for summary judgment so as to destroy his prospects of success on that application and to improve their prospects in defending the substantive claims against them.
[1] Decision of Associate Judge Blumberg emailed to parties on 12 March 2025 (FDN 36 – CIV-24-004488) (Reasons).
The substantive proceedings relate to a physical scuffle on 20 May 2021, during the COVID-19 pandemic, at the shop known as ‘Stirling Cellars and Patisserie’. Mr di Fede, as the applicant, claims substantial damages for personal injury and consequential loss from the first respondent (Stirling Cellars) and second respondent (Mr Tarca) for their alleged assault, battery and trespass.[2] The substantive proceedings are still at an early stage and the application for recusal was made in contemplation of the Associate Judge hearing argument on Mr di Fede’s application for summary judgment. That argument on the application for summary judgment has not been heard and is pending the determination of this appeal.
[2] Claim (FDN 1).
The central issue on appeal is whether the Associate Judge was in error in refusing to recuse himself. For the reasons that follow, I have determined that he was not in error. It is therefore not inappropriate for the Associate Judge to continue with case management of this matter.
Procedural background
Central to this appeal is the Associate Judge’s conduct in the management of procedural aspects of the matter following Mr di Fede applying for summary judgment. It is therefore helpful to summarise those aspects of the proceedings.
Mr di Fede’s claim was filed on 9 May 2024. The respondents filed their defence on 21 June 2024, in which they broadly denied the allegations against them.[3] During September and October 2024 Mr di Fede filed two affidavits and a USB stick with alleged video footage of the events of 20 May 2021.[4] This material was taken into account by the Associate Judge in case management of the summary judgment application.
[3] Defence (FDN 4).
[4] FDNs 7, 10 and 11.
On 29 October 2024 Mr di Fede filed an application for summary judgment as to liability against the respondents.[5] At a directions hearing held on 5 November 2024, before an Auxiliary Associate Judge, counsel for the respondents indicated that they did not propose to file any affidavit material in opposition to the application for summary judgment. The respondents instead took the position that the issue was a factual one for trial.[6] The application for summary judgment was listed for argument on 13 December 2024.
[5] Interlocutory Application (FDN 12).
[6] Record of Outcome (FDN 14).
The Associate Judge’s clerk sent an email to all parties on 9 December 2024 to notify them, inter alia, that based on current information the Associate Judge had taken the view that the defence filed did not have the status of sworn evidence (9/12/2024 Email).[7] The Associate Judge’s reasons for sending the email via his clerk are described in his reasons for decision; he had formed the view that it was incumbent upon the court to raise the issue of the absence of evidence and the principles of law governing summary judgment having regard to the interests of justice and observing Uniform Civil Rules 2020 (SA) (UCR) UCR 1.5.[8] UCR 1.5 sets out the object of the Uniform Civil Rules, being to “facilitate the just, efficient, timely, cost-effective and proportionate resolution or determination of the issues in proceedings”.
[7] The full terms of the email are set out in the Reasons at [57].
[8] Reasons [68].
Following the 09/12/2024 Email, the respondents filed three affidavits, two of which were affidavits that had earlier been filed in the Magistrates Court in separate criminal proceedings against Mr di Fede.[9]
[9] FDN 15, 16 and 17.
At the hearing on 13 December 2024 the Associate Judge adjourned full argument on the application to provide Mr di Fede with time to consider the material filed by the respondents and to potentially file a responsive affidavit (13/12/2024 Hearing).[10] At that time there were also exchanges between the Associate Judge and the parties about the difficulties for Mr di Fede obtaining summary judgment in the face of factual disputes, and the potential adverse costs implications for Mr di Fede if he were unsuccessful. Key extracts from the transcript of that hearing are set out at paragraph 22 below. The Associate Judge then listed the argument on summary judgment for a half-day on 27 February 2025 and made other timetabling orders, including for a short directions hearing on 3 February 2025 to evaluate the utility of the scheduled argument “at an early time to avoid costs thrown away, should the argument not proceed”.
[10] Record of Outcome (FDN 18).
On 8 January 2025, Mr di Fede filed a further interlocutory application which relevantly sought orders that the Associate Judge “recuse himself from any further care or conduct of or with respect to these proceedings”.[11] In the supporting affidavit filed on the same day, Mr di Fede deposed to the reasons why he contended the Associate Judge was required to recuse himself, which were principally directed to the content of the 9/12/2024 Email and the remarks of the Associate Judge during the 13/12/2024 Hearing.[12]
[11] Interlocutory Application (paragraph 3) (FDN 19).
[12] Affidavit of Adrian Di Fede made 8 January 2025 (FDN 20).
On 3 February 2025 the Associate Judge set aside the orders he had made at the 13/12/2024 Hearing, relevant to the hearing of the application for summary judgment, and listed the recusal application for argument for a half-day on 27 February 2025.[13] Pursuant to timetabling orders, during February 2025 the parties filed further affidavits and their outlines of argument.
[13] Record of Outcome (FDN 25).
Primary decision: refusal to recuse
The recusal application was argued on 27 February 2025. The Associate Judge refused the application, with his written reasons given on 12 March 2025.[14] The Associate Judge found that Mr di Fede had failed to establish facts which demonstrated any apprehended or actual bias.
[14] Record of Outcome (FDN 35) and Reasons.
The Associate Judge adopted the standard test for recusal as it had been enunciated by Justice B Doyle in Mallios v Commissioner of Police[15]; which requires that the judicial officer consider whether a fair-minded lay observer might reasonably apprehend that he might not bring an impartial mind to the resolution of the question or questions that he will be required to decide. The relevant category for this recusal application was identified as falling within the ‘conduct’ category, where the question is whether conduct, in connection with the management of the proceeding, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment.
[15] Mallios v Commissioner of Police [2024] SASC 131 at [15] to [17].
The Associate Judge then made some observations about the context of the impugned conduct, which conduct needed to be considered in the prism of the hearing as a whole and having regard to the entire conduct of the Associate Judge. In so doing, the Associate Judge rejected the notion that considerations should focus on “snippets taken from the hearing”, emphasising that extensive parts of the 13/12/2024 Hearing, during which other comments he made were helpful to Mr di Fede’s position, had not been mentioned by Mr di Fede’s supporting affidavit. He also noted that, in any event, Mr di Fede had “cherry picked” statements from the hearing that were, on occasions, “misquoted, inaccurate, or distorted” (though ultimately nothing turned on those discrepancies).[16]
[16] Reasons [150]. In his reasons the Associate Judge addressed each passage upon which Mr di Fede relied: [147]-[186].
The Associate Judge summarised his role as an Associate Judge dedicated to the management of pre-trial matters, emphasising that he did not hear trials and had no jurisdiction to do so. From this I understood the Associate Judge to be stressing his limited power to affect the substantive rights of parties that would ultimately be the domain of the trial judge; being a matter to which an independent lay observer may have regard in assessing any perception of bias.
The Associate Judge also considered different judicial methods for the management of proceedings, comparing what has been described as “the sporting theory of justice” of judicial officers of the 20^th century, with the modern approach of “proleptic gate keeping”. He noted that the Uniform Civil Rules that came into force in 2020 also contain a clear object for the “just, efficient, cost-effective and proportionate resolution or determination of the issues in proceedings”. He emphasised that it is against this background that the court supervises litigation at the pre-trial stages by dedicated specialist judicial officers; who, in the District Court, are the Associate Judges (formerly known as Masters).
The Associate Judge addressed the key contentions of Mr di Fede with respect to the 9/12/2024 Email and the 13/12/2024 Hearing, noting that Mr di Fede’s complaint was underpinned by his presumption that, without the Associate Judge’s intervention to assist the respondents, his summary judgment application would have succeeded because the respondents had failed to file any evidence, and their defence strategy was minimalist without expressing any alternative version of the facts.[17] The difficulty with Mr di Fede’s prediction of certain success in the proceedings by way of summary judgment was also addressed by the Associate Judge,[18] with him debunking the prospect that it was a foregone conclusion that he would have succeeded prior to the Associate Judge’s so-called intervention.[19] The Associate Judge also noted that “the application for summary judgment remains alive and has not been determined”.
[17] Described by the Associate Judge as containing “bare denials” at [89] of his Reasons.
[18] Reasons [116]-[139].
[19] Reasons [121].
I pause at this stage to mention two matters related to Mr di Fede’s application for summary judgment, and the Associate Judge’s remarks about it.
First, significant to the events of the 13/12/2024 Hearing, Mr di Fede contends that the 9/12/2024 Email had prompted the respondents to file affidavits in response to his application for summary judgment, and without the email no affidavits would have been filed by the respondents and the application would have proceeded to argument on 13 December 2024; at which he maintains he would have been successful. Whilst the Associate Judge states that the 13/12/2024 Email did not have a “prescriptive quality”, I do not doubt that it triggered the filing of the further affidavits by the respondents provoking an adjournment of the hearing of the summary judgment application on 13 December 2024.[20] That said, I agree with the Associate Judge that it is also possible that an adjournment might have been sought at the hearing to remedy the “obvious defect” in the respondents’ position with associated delay and costs.[21] I accept that the intent of the Associate Judge’s 13/12/2024 Email was directed to management of the proceedings in the interests of justice and the object of UCR 1.5 (mentioned at paragraph 7 above).[22] At that early stage of the proceedings it was appropriate for the Associate Judge to raise such matters of concern.
[20] Reasons [73] and [74].
[21] Reasons [69].
[22] Reasons [68].
Secondly, the Associate Judge acknowledged that there were authorities to the effect that pleadings, of themselves, may well be “sufficient to thwart a summary judgment application”.[23] Though the Associate Judge thought those authorities had been misconstrued, he accepted that there was also an issue of law arising from UCR 67.3 - which requires pleadings to be certified by the responsible solicitor as instructed by their client, including there being a proper basis for each allegation of fact. The issue being that the pleadings may of themselves therefore constitute a basis for a defence to a summary judgment application, where further evidence would not be necessary.
[23] C v M [2021] SADC 29 at [14]; Rana v Hyatt Regency Hotel Ltd [2007] SASC 7 at [23]; and Mossop Group Pty Ltd v 1KW Adelaide Pty Ltd [2018] SASC 186 at [30].
In view of these matters, the Associate Judge considered that had the argument on the summary judgment proceeded on 13 December 2024, based on the pre-9 December 2024 position (with the lack of any affidavit material filed by the respondents), “it is by no means certain, after full argument, that [the respondents] would have failed in light of UCR 67.3 and the three authorities identified”.[24] I address the nature of the application for summary judgment in more detail later in these reasons.
[24] Reasons [121].
Mr di Fede had alleged that conduct of the Associate Judge at the 13/12/2024 Hearing, together with the earlier email, demonstrated bias.[25] A critical aspect of that allegation was the Associate Judge’s remarks in response to the respondents’ counsel’s submission that there was a factual dispute that could only be determined at trial. I consider those remarks to reflect an important element of Mr di Fede’s application, and to also be relevant to his case on appeal, and therefore repeat them below:[26]
HIS HONOUR: All right. Look, he’s unrepresented. Your affidavits have come in this week. Two points for your reflection: (1) you cannot - a summary judgment application, you cannot resist on the pleadings, that’s not the way summary judgment works. I think your side has twigged to that fact, so needs some evidence to make a controversy. You don’t make a controversy just by having a defence of bare denials.
That work that your side has done in the last seven days or even less, five days, is critical to this application. Furthermore, he’s seeking an adjournment to answer this. The more controversy there is, the less likely there is to be a judgment on the papers. But not only that, your pleadings: do purport to rely on the defence of necessity, or self-defence, or some - your defence doesn’t assert any of the defences to an assault, it just says a deny, like it didn’t happen.
So you don’t want to plead, you know, that you had some supervening authority because of, you know, a need to – the COVID regime where your people had to enforce that?
[25] FDN 32 Summary of Argument at [12] to [32].
[26] See page 3 of the Transcript (13/12/2024). An extract also appears in the Reasons at [84].
In his reasons, the Associate Judge’s response to this aspect of the 13/12/2024 Hearing was that it amounted to putting a proposition before the parties that “was an incontrovertible assessment of the reality as it stood on that day”.[27] The Associate Judge appears to have accepted that this proposition followed from the affidavits that had been recently filed by the respondents.[28] However, he also viewed that certain of those facts set out in the affidavits were already known to Mr di Fede on or before 9 September 2024 - as was evident from his list of documents filed at that time.[29] As I understood the Associate Judge, he was not persuaded that those facts would not have been forthcoming at some point, and once the affidavits were filed by the respondents he considered his dialogue with the respondents’ counsel was unremarkable.
[27] Reasons [86].
[28] Reasons [85].
[29] FDN 8.

In relation to the deficiencies in the respondents’ defence, also raised by the Associate Judge at the 13/12/2024 Hearing, the Associate Judge appeared to take the view that those amendments could be foreseen by reference to the CCTV footage on the USB stick that had been filed by Mr di Fede – because the footage revealed “a complex physical interaction in the context of a bottle shop during the period of COVID restrictions”.[30] The Associate Judge also placed emphasis on a letter that the respondents had sent to Mr di Fede on 30 October 2024 which alluded to the defences of “self-defence and defence of property” which did not appear in the filed defence at that time.[31] Therefore, the Associate Judge reasoned that the positive defences were extant well before the 13/12/2024 Hearing, though (for reasons unknown) had not been articulated in the pleading of the defence.[32] Mr di Fede complains that the respondents only sought leave to amend their defence to plead these matters because they were raised by the Associate Judge.
[30] Reasons [90]-[93].
[31] Reasons [103] and [104].
[32] Reasons [108].
Ultimately the Associate Judge reasoned that his remarks at the 13/12/2024 Hearing regarding the potential defences, which Mr di Fede had construed as favourable to the respondents, were directed to avoiding delay, costs and wasted resources – “to ensure that the parties have articulated their cases with clarity and in a way that facilitates the smooth progress to a trial i.e. a progress that will not be aborted or derailed”.[33] This is in contrast to what the Associate Judge described as Mr di Fede’s technical position (being analogous to “the sporting theory of justice”).[34] As already mentioned, I accept that an Associate Judge engaging in active case management will raise matters of concern early in the proceedings – this is particularly so where there were already indications before the court that such matters would eventually come to light.
[33] Reasons [109]-[111].
[34] Reasons [105].
The Associate Judge also had careful regard to matters that he addressed at the 13/12/2024 Hearing which he said were clearly favourable to Mr di Fede, including:
·facilitative remarks he made about the difficulties in obtaining a judgment on the papers, particularly for an assault case;[35]
·the prospect of an adverse costs order being made against Mr di Fede if he wished to pursue the summary judgment application;[36]
·the perversity of (or lack of utility in) Mr di Fede potentially having to bear the costs (which could be “thousands of dollars”) of the summary judgment application if he were to ultimately win the case at trial;[37]
·leaving open the prospect of Mr di Fede pursuing summary judgment beyond the 13/12/2024 Hearing;[38]
·the respondents not getting costs of the aborted hearing;[39] and
·the preparedness of Mr di Fede to prosecute his claim, including in relation to what he would need to establish for proof as to quantum.[40]
[35] Reasons [125] and [126].
[36] Reasons [129].
[37] Reasons [130] and [131].
[38] Reasons [133]-[137].
[39] Reasons [138].
[40] Reasons [140]-[146].
The Associate Judge was also critical of Mr di Fede having failed to adequately address matters relevant to the quantum of his claim, including gaps in his discovery of materials and the likely need for expert medical opinion as to the loss caused by his alleged injuries.
Having regard to all of these matters, the Associate Judge decided that actual or apprehended bias had not been established and refused the application to recuse himself.[41]
[41] Reasons [5].
The appeal
The right of appeal which is pursued in these proceedings arises pursuant to section 43 of the District Court Act 1991.
43—Right of appeal
(1) A party to an action may, in accordance with the rules of the appellate court, appeal against any judgment given in the action.
(2) The appeal lies—
…
in the case of a judgment given by an Associate Judge or the Court constituted of an Associate Judge —to the Court constituted of a Judge;
…
(3) The appeal lies as of right, or by permission, according to the rules of the appellate court but, in the case of an appeal against a final judgment of the Court in its Administrative and Disciplinary Division, permission is required to appeal on a question of fact.
The term “judgment” for this purpose is defined in section 3 as “a judgment, order or decision and includes an interlocutory judgment or order”.
The jurisdiction of the District Court to hear and determine an appeal is to be exercised by a Judge: UCR 212.7. Leave to appeal is required in respect of any appeal to a Judge of the District Court against a judgment, decision or order of an Associate Judge: UCR 213.1A. Such an application for leave to appeal may be made in the first instance to that Associate Judge: UCR 213.3(1). In this matter the Associate Judge granted Mr di Fede leave to appeal when making orders following his refusal of the application.[42]
[42] FDN 35 Record of Outcome (paragraph 4).
The notice of appeal must be in the prescribed form and set out the appeal grounds: UCR 214.2(1). Unless the court otherwise orders, an appellant may not rely on grounds that are not stated in the notice of appeal: UCR 214.2(5). However, pursuant to UCR 217.10(2) the court may, if it considers that it is in the interests of justice to do so, determine an appeal on the merits notwithstanding a failure of a party to raise or state properly a ground of appeal: UCR 217.10(2).
Appeal grounds
In his application Mr di Fede relied upon eight grounds of appeal:
1.   That [the Associate Judge] erred in fact and in law.
2.   That [the Associate Judge] erred in his findings of facts.
3.   That [the Associate Judge] erred in his application of erroneous factual findings and their application to the law or appropriate legal practice, protocols and procedures applicable.
4.   That [the Associate Judge] misdirected himself as to the appropriate applicable law and legal principles he was to follow and apply.
5.   That [the Associate Judge] applied legal practice, protocols and procedures that were not applicable.
6.   That [the Associate Judge] failed to apply the correct legal practice, protocols and procedures that are applicable.
7.   That [the Associate Judge] failed to apply the correct case law of legal principles that apply to the type and nature of the interlocutory application he determined.
8.   That [the Associate Judge’s] care and conduct of the matter before him has prejudiced the appellant’s case – and allowed the respondents to still be able to continue with the substantive matter, despite the egregious and ingenious behaviour of the Associate Judge.
The first seven grounds of appeal are in general terms and overlapping; grounds 1, 2, and 3 allege errors in the factual findings, without specifying those factual findings; and grounds 1, 3, 4, 5, 6 and 7 allege legal errors of different kinds, without identifying those errors by reference to any parts of the reasons for decision. Ground 8 is more helpfully directed to Mr di Fede’s grievance, though the description still lacks particularity.
In any event I am not required to take a technical approach to confining Mr di Fede to these grounds, noting that they are broad grounds. I also have regard to Mr di Fede being unrepresented.
Mr di Fede’s submissions
In his oral submissions, it became clear that Mr di Fede had two principal grounds for challenging the decision of the Associate Judge not to recuse himself.
Actual bias
First, Mr di Fede contended that the Associate Judge erred in not finding that he was biased in the sense of coming to the matter with a “predisposed state of mind” that caused him to “depart from impartiality”.[43] Mr di Fede said that the Associate Judge had “strong views and opinions” that influenced his conduct as a judicial officer in the sense of being wedded to not allowing the matter to proceed to judgment on the papers (which I understood to mean summary judgment).[44] Further, he alleged that, also directed to this purpose, the Associate Judge “coached, directed and educated the counsel for the respondents”.[45]
[43] T7.18-38-T8.1; T9.34-T13.1.
[44] Ibid.
[45] Ibid.
At the hearing of this appeal, I expressed some difficulty with this first contention as to “actual bias” being available to Mr di Fede on the facts before me. I am reminded of the high bar for Mr di Fede to overcome for me to reach a finding of “actual bias”;[46] such a finding is a grave matter.[47] Such an allegation must be distinctly made and clearly proved, and cogent evidence is required.[48] I am also cognisant that, given the broad and general application of the reasonable apprehension test, it may be unnecessary and inappropriate for me (in the role of the appellate court – see R. (De Vesci) v Justices of Queen’s County[49] to determine such a serious allegation at an interlocutory stage.[50] In any event, I informed Mr di Fede during the hearing that I would give further consideration to his claim of actual bias, and it is therefore appropriate for me to say something more on that topic.
[46] DT v Chief Executive of the Department for Child Protection [2021] SASC 138at [38].
[47] Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]-[73].
[48] Ibid.
[49] (1908) 2 IR 285 at 294.
[50] Webb v R (1994) 181 CLR 41 at [11].
The Associate Judge did not find any facts to support a finding of actual bias.[51] At the appeal hearing Mr di Fede did not point to any other facts that would potentially show actual bias. When I questioned Mr di Fede during the hearing about this, he contended that his essential point was that the Associate Judge was fixed in his views about the matter having to proceed to trial – and not being open to having the matter concluded on the papers.[52] This appears to be the same foundation for actual bias that had been considered (and dismissed) by the Associate Judge.[53]
[51] Reasons [194]-[198].
[52] T7.24-30.
[53] Reasons [197]-[198].
Where the issue is actual bias in the form of prejudgment, the appellant must establish that the primary judge was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.[54] The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion.[55] I accept that actual bias need not be confined to an intentional state of mind; it may be subconscious, provided it is real.[56] Ultimately, not only must it be established that the decision-maker held an opinion on a relevant aspect of the matter in issue, and that he will apply that opinion to the matter in issue – but it will also be necessary that the decision-maker will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case.[57]
[54] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72].
[55] Ibid at [71].
[56] Ibrahim Bilgin v Minister for Immigration and Multicultural Affairs [1997] FCA 1022.
[57] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [185].
Ultimately, I am not satisfied that Mr di Fede has established that the Associate Judge had a fixed mindset or opinion about the summary judgment application sufficient to constitute actual bias; importantly, Mr di Fede did not allege that mindset other than by reference to the conduct of the Associate Judge. The key facts alleged by Mr di Fede as to the Associate Judge’s conduct by the 09/12/2024 Email and the 13/12/2024 Hearing are not sufficient to enable me to draw any inference that he had a fixed mindset or opinion, or that he would do other than determine the summary judgment application on its merits. As such, Mr di Fede has been unable to satisfy me, based upon the conduct of the Associate Judge, that he is so fixated on an opinion about the summary judgment application that he would be prepared to disregard whatever submissions and evidence are made at a hearing of the application. In these circumstances, it is appropriate for me to determine this matter by consideration of whether the Associate Judge’s conduct was sufficient to amount to apprehended bias – being Mr di Fede’s second contention.
Apprehended bias
Mr di Fede contended before me that the Associate Judge ought to have found that his conduct of the matter in “coaching” the respondents’ counsel and “giving them ideas of what to put on the defence” was sufficient to create an apprehension of bias.[58] Mr di Fede said that “magically, these ideas are reflected in each of the 21 points of the new defence” and “they didn’t have this before”.[59] Further, he alleged that the respondents had “maintained their position until they were told what to do or what to write”, and “that is apprehension of bias as a minimum because that changed the course of the whole proceedings”.[60]
[58] T16.12-T17.9.
[59] T17.1-3.
[60] T17.5-9.
Later on, Mr di Fede also said that the Associate Judge’s conduct looked like he was “trying to keep the case alive here by going to the rescue of one of the parties”.[61]
[61] T22.3-7.
I note that similar matters were raised before the Associate Judge. He considered those kinds of contentions were not an accurate reflection of the 13/12/2024 Hearing and failed to take into account what the fair-minded lay observer would make of the “entire hearing”, and viewing of the 9/12/2024 Email.[62] Further, the Associate Judge acknowledged he held views about Mr di Fede’s application for summary judgment but these were not “personal opinion” and represented “a view about the law within recognised principles of civil procedure”.[63]
Orders sought on appeal
[62] Reasons [206].
[63] Reasons [211].
The consequent orders sought by Mr di Fede upon the appeal being allowed are:
[2]that [Associate Judge Blumberg] be removed from any case management or care and conduct of the matter, and
[3]that the determination of [Associate Judge Blumberg on 12 March 2025] be rescinded.
I had earlier directed that it was inappropriate and premature for the appeal hearing to deal with the further proposed orders sought by Mr di Fede at paragraphs 4, 5 and 6 of the Appeal Grounds (FDN 1), which dealt with matters relevant to the substantive proceedings and were beyond the scope of the appeal.[64] As mentioned above, the proposed order at paragraph 1 would also be unnecessary because it concerned leave to appeal which had already been granted by the orders already made on 12 March 2025.[65]
[64] FDN 6.
[65] FDN 35 - CIV-24-004488.
Nature of the appeal
The appeal is conducted by way of rehearing: UCR 217.10(a). This is a provision under which the appellate court is required to “give the judgment which in its opinion ought to have been given in the first instance”.[66] It is a procedure for the correction of error. It is necessary to identify the existence of an error, whether of fact or law.[67] The court may draw inferences from evidence adduced in the proceeding at first instance. The court also has a discretion as to whether to hear further evidence.
[66] Fox v Percy (2003) 214 CLR 118 at [23].
[67] Attorney-General v Sillem [1864] EngR 352; (1864) 10 HLC 704; 11 ER 1200.
I am required to undertake a real review of the decision and the reasons of the Associate Judge in order to determine whether the Associate Judge erred in fact or law. It necessitates my reviewing the evidence and findings below, and forming my own view as to the appropriate outcome.[68]
[68] Warren v Coombes (1979) 142 CLR 531 at 551.
For the appeal to succeed it is necessary for Mr di Fede to establish error on the part of the Associate Judge.
The decision of the Associate Judge not to recuse himself is not a discretionary one because the legal criterion applied (or purportedly applied) by the Associate Judge to reach the conclusion demanded a unique outcome.[69] Accordingly, the correctness standard applies to this appeal so that the binary question to be determined is whether or not the Associate Judge should have recused himself.[70] The decision of the Associate Judge involved the balancing of competing considerations applied to a legal standard.
[69] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [48]-[49].
[70] Ibid at [41]-[43].
I pause to note that leave to appeal had already been given to Mr di Fede by the Associate Judge. The Associate Judge determined that the “novelty of the application alone warrants a grant of leave to appeal should the practice and approach outlined in [his] reasons (and regularly undertaken) be found to be in error”. The protective force of the requirement for leave to appeal against interlocutory decisions exists to minimise delays and disruption to the substantive proceeding. Whether or not it is in the interests of justice to grant leave to appeal from an interlocutory decision will generally focus upon three inter-related questions: (i) whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal; (ii) whether the decision raises an issue of principle or general importance; and (iii) whether allowing the decision to stand would work a substantial injustice to the applicant.[71] In view of the protective nature of the requirement for leave to be granted, and given the subject matter of the interlocutory decision, to my mind it may have been preferable for the Associate Judge to have left this question for determination in the appellate jurisdiction of the court. As there was no contest to the grant of leave, I consider it inappropriate for me to now reopen this aspect on appeal.
[71] McDonald v Attorney-General (SA) [2023] SASCA 132 at [27].
I also note that at an earlier directions hearing I excused the respondents from attending the hearing of this appeal. They were not invested in the recusal application and also declined to make any written submissions. Though I may have been aided by their submissions, the additional costs and time justified excusing them from attending. Mr di Fede was not opposed to this course.
The test for apprehended bias and the merits of this appeal
Legal principles
Central to this appeal is the question of whether the Associate Judge engaged in conduct, in the management of the proceeding, which gave rise to a reasonable apprehension of prejudice, partiality or prejudgment.
The principles governing a recusal decision for bias or apprehended bias are well understood.
The well established test for determining whether a judge should disqualify himself on the basis of an apprehension of bias is that of the fair-minded lay observer, as explained by the plurality in the High Court decision of Johnson v Johnson:[72] (footnotes omitted)
[11]… It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
[12]That test has been adopted … for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. "If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision." The hypothetical reasonable observer of the judge's conduct 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. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial".
[72] Johnson v Johnson (2000) 201 CLR 488 at [11]-[12]. Also see: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6].

In considering this matter, I also have regard to the reasonableness of any suggested apprehension of bias having to be considered in the context of ordinary judicial practice, having regard to the exigencies of modern litigation.[73] In this regard, it was remarked in Johnson v Johnson that:[74]
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 the court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. … Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
[73] Johnson v Johnson at [13].
[74] Ibid.
I also have regard to the difficulties often encountered in determining the boundary between acceptable engagements with counsel and conduct that is indicative of prejudgment and bias.[75] This difficulty can be heightened in matters where the judicial officer is assessing allegations of their own bias, as is typically the case. However, it is also the case that the reasonable apprehension of bias must be “firmly established” before prohibition will issue. Sometimes the line of judgment is “ill-defined”.[76]
[75] Antoun v R (2006) 224 ALR 51;[2006] HCA 2 at [74].
[76] British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 at [44].
The process by which I am to determine whether there is a reasonable apprehension of bias has been referred to as a two-step test.[77] The first step is to identify what was said or done by the judicial officer which is alleged to have created a reasonable apprehension of bias – to have decided matters other than upon their legal and factual merits. The second step is to identify the logical connection between what was said or done and the “feared deviation from the course of deciding the case on its merits”.[78] A mere assertion of a judicial officer appearing to be biased will be of no assistance in the absence of an articulation of the connection between the events giving rise to the apprehension of bias and the possibility of departure from impartial decision-making.
Assessment on the merits
[77] Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [63].
[78] Ibid.
The crux of Mr di Fede’s complaint is that the Associate Judge behaved so as to cause an apprehension that he was set against having the matter resolved by way of summary judgment. More particularly, the allegation is that he coached and assisted the respondents such that: (i) they were then in a position to oppose his application for summary judgment, which he assumes would have otherwise been successful, and (ii) they were also able to substantially improve their case by amending their defence. To find apprehended bias these matters must be sufficient to create a reasonable apprehension of bias, and then must also be logically connected to a fear that the Associate Judge will not proceed on the merits of the matter before him.
Making such an assessment in this case is difficult; any logical connection between Mr di Fede’s complaints and the Associate Judge not conducting himself in accordance with the merits of the case management of the matter is necessarily tenuous and prospective because of the interlocutory nature of the impugned conduct. I note that the Associate Judge has not had to make any findings in respect of the substantive aspects of the case from which a logical connection to apprehended bias might otherwise be drawn.
Knowledge of the fair-minded lay observer
In considering Mr di Fede’s complaint, having regard to the principles set out above, I need to view the conduct of the Associate Judge through the eyes of the fair-minded lay observer who will not have a detailed knowledge of the law, or of the character or ability of a particular judge, but will have an understanding of ordinary judicial practice.
In my view, the knowledge that ought to be attributed to the fair-minded lay observer in this case includes:
(i)knowledge of the factual nature of the pleaded claim and the pleaded defence;
(ii)knowledge that the proceedings were still at a very early stage (without the trial having been listed or any substantive timetabling orders made for trial) when Mr di Fede’s application for summary judgment was filed;
(iii)knowledge that the footage on the USB stick filed by Mr di Fede was from the scene of the alleged assault;
(iv)knowledge of the documents filed by the parties, including their lists of documents - which for the respondents included the two earlier affidavits of Max Tarca that had been filed in the Magistrates Court proceedings in 2021;
(v)knowledge of open correspondence between the parties in relation to the proceedings copied to the Associate Judge’s chambers or the court registry;
(vi)knowledge that the alleged assault took place during the COVID-19 pandemic and related to the sign-in requirements for customers at retail venues;
(vii)knowledge that a judicial officer will be minded to proceed with caution in determining an application for summary judgment, particularly so in a matter concerning damages for personal injuries suffered from an alleged physical assault;
(viii)knowledge that modern judges legitimately play an active role in managing proceedings leading up to trial, including to ensure that all issues are adequately addressed by pleadings such that there will be no surprises at trial, and also to intimate as to matters that will be relevant to a party in order to avoid delays with the risk of late applications having to then be managed very close to trial; and
(ix)knowledge that judicial officers have promised by judicial oath or affirmation and are trained and experienced to come to an objective independent decision without bias or prejudgment.
The fact that Mr di Fede was unrepresented is also something of which I have had regard.[79] It may be that the lay observer would also be cognisant that one of the parties did not have the benefit of counsel or legal representatives to explain matters raised by the Associate Judge. In those circumstances a judicial officer may need to be more cautious about adopting a forthright approach to engagement with the parties. However, I do not think the Associate Judge acted to deny Mr di Fede fair procedure – particularly having regard to the matters favourable to Mr di Fede as set out at paragraph 26 above.
Summary judgment application
[79] Antoun v R (2006) 224 ALR 51; [2006] HCA 2 at [27].
As noted above, I have assumed the fair-minded lay observer would have some knowledge of the difficulties of an application for summary judgment in a matter such as this. I hesitate to embark on a comprehensive analysis of this issue because the application for summary judgment remains extant. However, it is necessary to say something about what is required in determining a summary judgment application because the fair-minded lay observer would be taken to have such knowledge – at least in a general sense. It is also important that I say something about applications for summary judgment as Mr di Fede considered, wrongly in my view, that the Associate Judge’s conduct – particularly the 9/12/2024 Email, deprived him of being successful on that application.
Mr di Fede’s application for summary judgment was made pursuant to UCR 144.2(1)(a), which provides:
(1)The Court may, on application by a party, give summary judgment in favour of an applicant –
(a) on a claim if there is no reasonable basis for defending the claim;
Relevantly, for Mr di Fede’s application to be successful the court must be satisfied that “there is no reasonable basis for defending the claim”. The High Court has said that in determining such an application a court “had to be cautious not to do a party injustice by summarily determining an action, particularly where there were disputed issues of fact or law or mixed fact and law, merely because the court considered that the [defence] was unlikely to succeed”.[80] This approach was adopted in Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd in relation to an application for summary dismissal and striking out of a claim, where Doyle J said:[81] (footnotes omitted)
[59]By way of summary of the approach articulated in Spencer v Commonwealth, it can be said that the power to determine a claim summarily should not be exercised lightly. Exercise of the power requires a practical assessment of whether the applicant has real, as opposed to merely fanciful, prospects of success. While the Court need not be satisfied that the claim is hopeless or bound to fail, nevertheless it must be cautious not to do a party injustice by summarily determining an action, particularly where there are disputed issues of fact or law or mixed fact and law, merely because the Court considers that the claim is unlikely to succeed. However, beyond these very general guidelines, the Court should focus upon the words used in the rules and avoid applying any judicial gloss.
[60]Related to the requirement that the Court undertake a “practical” assessment is the notion that the Court should not embark upon a ‘mini trial’ of the claim. Rather, the claim should be assessed in a summary manner, while being cognisant of the incomplete nature of the evidence upon which the Court’s decision must be based. Adversarial argument may assist, and indeed may result in the emergence of a sufficiently clear answer to a complex issue that summary judgment is appropriate. On the other hand, the need for prolonged argument may be indicative of a reasonable basis for the claim.
[80] Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [24]-[26].
[81] Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117 at [59]-[60].
In relation to the evidence to be relied upon in determining an application for summary dismissal, his Honour noted that there will “often be greater scope for reliance upon evidence so as to make good the proposition that the applicant’s case itself is deficient in some respect, or is otherwise frivolous, vexatious or an abuse of process”.[82] Significantly, he went on to say, “the nature of the exercise will nevertheless differ from that which is undertaken on a summary judgment application …[where] an application for summary judgment is typically addressed more to a particular defect in, or answer to, an otherwise properly articulated and disclosed case”. This is relevant to the “bare bones” defence of the respondents, which I understand to be of kind which puts Mr di Fede to proof - as opposed to pleading a positive defence (or answer) to his claims. This kind of defence was considered by Kourakis CJ in relation to a summary judgment application, in Collins v Djunaedi,[83] where he said: (emphasis added)
In the case of a summary judgment application, there is a reasonable basis for a claim, or a positively pleaded defence, when there is an evidential foundation for facts upon which arguable propositions of law would result in judgment for the plaintiff or the defendant as the case may be. In cases in which the defendant merely denies the claim, there must be reasonable grounds on which to contend that the plaintiff will not discharge its onus of proof or make good the propositions of law on which it relies. In the case of a SCR 232 application, the evidential basis or grounds must at least be pleaded.
[82] Ibid at [68].
[83] Collins v Djunaedi [2016] SASCFC 48 at [17].
Also relating to the precursor provision to rule 144.2,[84] in Jennings v Police,[85] the Chief Justice said:[86]
DCR 232 contemplates that there will be sufficient material before the Court to determine whether or not there is a reasonable basis for the claim or defence. Given the summary proceedings envisaged by the rule, that material will before the Court either by way of the affidavits of deponents, who are not required for cross-examination, or by agreed facts. If the critical facts are disputed then the matter should go to trial. Summary judgment given pursuant to DCR 232 is a final determination which supports res judicata.
[84] Rule 232 of the District Court Civil Rules 2006.
[85] Jennings v Police [2019] SASCFC 93.
[86] Ibid at [35].
In Cosenza v Roy Morgan Interviewing Services Pty Ltd,[87] in the context of defending an application for summary judgment under former DCR 232, Livesey J (as he then was) held that a respondent was not confined to the evidence adduced by it and which would be admissible at a trial, ruling that the respondent could rely upon the applicant’s own evidence which demonstrated the existence of disputed questions of fact and law.
[87] Cosenza v Roy Morgan Interviewing Services Pty Ltd [2020] SASC 65 at [24].
Relevantly, all cases note that caution is required in exercising the power to award summary judgment.[88] To this end I also note that claims which are by their nature “fact rich and fact intensive” may also be inappropriate for summary judgment because the question on the application is “a value judgment upon ascertained facts”.[89]
[88] Illman v Sterrey & Ors [2023] SASC 50 at [33].
[89] State of New South Wales v Spearpoint [2009] NSWCA 233 at [23].
In my opinion, in view of such matters, it was wrong for Mr di Fede to have presumed that his application would have succeeded but for the respondents filing affidavits following receipt of the 9/12/2024 Email. That said, I accept some of the Associate Judge’s remarks may have left him with that impression. In the end, I think that the fair-minded lay observer would be taken to know that summary judgment will not easily be granted, and that Mr di Fede would have faced a contest of some kind even if the respondents had not filed affidavits. That issue is necessarily now a hypothetical one and it would be inappropriate for me to postulate further as to any likely outcome.
In view of those matters, once the lay observer is taken to be imbued with knowledge that there was no certainty of outcome of Mr di Fede’s summary judgment application - even prior to affidavits being filed on 9 December 2024, the extent to which the 9/12/2024 Email would be viewed by the lay observer as causing any real prejudice to Mr di Fede is diminished. Further, it is not uncommon for parties to make applications for evidence to be filed at the commencement of, or during, a hearing for argument on an application for summary judgment or like. It is impossible, if not inappropriate for me, to predict the outcome of a hypothetical late application in a matter such as this, but it is relevant to note that the court will be guided by principles concerning the just resolution of civil disputes and promoting efficiencies and minimising costs.
Consideration
Ultimately the central question of fact here is one of judgment and degree. In view of the matters canvassed above, and for the reasons that follow, I am not satisfied that the Associate Judge’s conduct was of a nature such that a fair-minded lay observer might reasonably apprehend the Associate Judge had departed from impartial and unprejudiced case management of the matter, or that he might hear the summary judgment application other than on its merits.
I acknowledge that Mr di Fede does feel very aggrieved by the assistance the Associate Judge provided to the respondents, particularly through the sending of the 9/12/2024 Email and due to some of the remarks he made at the 13/12/2024 Hearing. For legal practitioners, such kinds of vigorous engagements between an Associate Judge and counsel are not uncommon – where claims and pleadings are tested with an eye to preparation for trial. It is understandable that Mr di Fede, unrepresented, may have formed a dim view of the process which appeared to assist his opponents (who had legal representation). However, it is important that those matters are viewed in the context of the Associate Judge’s overall conduct, including where he also gave helpful cues to Mr di Fede (see paragraph 26 above). The lay observer would consider all of the Associate Judge’s remarks, including those that were directed to help Mr di Fede and those made for the purpose of efficient, timely, cost-effective and proportionate resolution or determination of the proceedings.
The method and approach of judicial officers will vary and sometimes quite considerably. Some judicial officers may demonstrate, from time to time, a tendency for forthright engagement with parties and sometimes with impatience or a degree of aggression. It is not to be suggested that these types of judicial officers cannot be trusted to stay out of the arena and maintain objectivity. In my view, a fair-minded, lay observer would be fully cognisant of the fact that some judges may be more plain-spoken than others in expressing preliminary or provisional views or in arguendo.[90] Where a judicial officer is more forthright in his approach does not lead the lay observer to conclude he is favouring a party or will not be open to persuasion on the merits of any argument before him.
[90] Stone v Moore (2015) 122 SASR 54 at [71].
My reading of the transcript of the 13/12/2024 Hearing is that the Associate Judge was concerned about the underlying factual complexity of the matters likely to be in dispute between the parties at trial and he questioned the strategy adopted by the respondents in filing a defence replete with bare denials. It is also clear to me that he was mindful of Mr di Fede being unrepresented, and wished to inform him of the potential for adverse costs orders if he failed in his summary judgment application - which could ultimately prove to have been unnecessarily incurred if he were to ultimately succeed at trial. These are the kinds of matters regularly dealt with as part of modern case management and would not be viewed by the lay observer as bringing prejudice or partiality to his management of the proceedings.
The Associate Judge did indicate to the respondents’ counsel the kinds of defences that the respondents had not pleaded prior to the 13/12/2024 Hearing, which I accept were largely picked up in the proposed revised defence which the respondents now have sought leave to file.[91] This aspect of the Associate Judge’s remarks were no doubt galling for Mr di Fede who considered that without this assistance the respondents may simply have maintained their ‘defence-lite’ strategy. However, for reasons expressed by the Associate Judge (see paragraphs 24 and 25 above), I do not think the Associate Judge’s remarks were sufficient to cause the fair-minded lay observer to consider that he might not bring an impartial and unprejudiced mind to the matters before him in this proceeding. I acknowledge the difficulties in determining the boundary between acceptable engagements and those which are indicative of bias, but to my mind the testing of pleadings during early case management does not cross the line into bias – even where potential causes of action and defences are aired and tested by the judicial officer with the parties. There was no indication from the Associate Judge that the positive defences canvassed would be successful – or that they were even appropriate. I understood the Associate Judge’s remarks to be that if the respondents were intending to rely on any such positive defences they needed to plead them. It is within the role of the Associate Judge to point such matters out at an early stage.
[91] FDN 23 – CIV-24-004488 (filed on 31 January 2025).

It is also relevant to this appeal that the application for recusal is of an Associate Judge, who will not have conduct of the trial and will not finally determine the substantive case or any relief to be granted. Of course, given my decision, he may go on to hear the application for summary judgment which could finalise the question of liability. For the reasons already given, I do not consider there is any logical connection between the matters relied upon by Mr di Fede and the Associate Judge hearing the application for summary judgment, or continuing to case manage the principal proceedings, such as might cause a fair-minded lay observer reasonably to apprehend that he might not bring an impartial mind to the case. There was no indication in the remarks of the Associate Judge that if he were to hear the argument on application for summary judgment that he would not determine it on its merits – such as to be open to persuasion on any submissions and evidence before him. The Associate Judge’s flagging to the parties of the difficulties in bringing and defending a summary judgment application would be viewed by the lay observer, knowing the high bar for summary judgment, as within the scope of proper case management.
Further, it is important that Associate Judges, who are tasked by the District Court Act and UCR with taking a modern approach to active case management of civil proceedings, ensure that by the time a matter is ready for trial all of the key issues of dispute are identified such that there can be no ambush or surprise at trial. In view of this, the time to make his views known and to point out potential problems for each party’s case is during this early case management process for which the Associate Judge was responsible. I appreciate that some of the exchanges at the 13/12/2024 Hearing and the Associate Judge’s forthright style may have been unexpected and confronting to Mr di Fede. This is particularly so because he is unrepresented and inexperienced in the conduct of civil proceedings. However, in my view, a fair-minded lay observer with appropriate knowledge would have seen the Associate Judge’s conduct for what it was in the overall context of modern active case management.
Conclusion
The Associate Judge was correct not to recuse himself. I make the following orders.
1.The appeal is dismissed.
2.There be no orders as to costs of this appeal.