DJB v MH - [2024] SADC 18

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
DJB v MH
[2024] SADC 18
Judgment of her Honour Judge Bochner
23 February 2024
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA
This appeal relates to a number of interlocutory orders made - the Appellant claims he was denied procedural fairness - reasonable apprehension of bias.
Held: Appeal dismissed.
Uniform Civil Rules 2020 (SA); Evidence Act 1929 (SA); Family Law Act 1975 (Cth); Intervention Orders (Prevention of Abuse) Act 2009 (SA), referred to.
MT v SE [2023] SADC 129; House v The King [1935] 55 CLR 499, considered.

DJB v MH
[2024] SADC 18
CIVIL

On 11 September 2023, I delivered a judgment in an appeal of various interlocutory orders made by a Master of the District Court.[1] When the matter came back on before the Master, after delivery of my judgment, further orders were made. The appellant appeals those orders.
[1] [2023] SADC 126.
I adopt the summary of the background to this action that I set out in my earlier decision.[2] I also adopt the description of the interlocutory processes leading to that decision.[3]
[2] Ibid, [2] – [3].
[3] Ibid, [4] – [9].
Developments since the delivery of my judgment on 11 September 2023
On 30 October 2023, a directions hearing was held before the Master. The Master commenced by noting the outcome of the appeal. She observed that interlocutory applications FDN 45 (the appellant’s application relating to questions of law) and FDN 47 (the respondent’s application for suppression orders) remained outstanding. She asked the parties if each application was being pressed.
The respondent’s lawyer, Mr Simpson, advised the Court that he had only just been retained and sought an adjournment for about a month to allow him to acquaint himself fully with the file. He indicated that he may be instructed to apply for summary dismissal of the appellant’s claim and he made reference to the case, MT v SE.[4]
[4] [2023] SADC 129.
The Master then said:
I was going to bring that decision to the parties’ attention this morning, in any event, because I think it will have impact on your case, [DJB], and also the position of the respondent.[5]
[5] T2.34-37.
The appellant submitted that an adjournment should not be granted because of the delay caused by the respondent’s instructing new lawyers. He also submitted that the delay and the “substance of the respondent’s case” amounted to an abuse of process.[6]
[6] T3.26-32.
The Master then advised that the earliest time that she had available to list FDNs 45 and 47 for hearing was on 6 February 2024, although later suggested that she could make time available on 1 February 2024 to hear the applications. She then said that the applications would be listed for hearing on 1 February 2024 and she would bring the matter back for a further directions hearing in few weeks’ time to check on the progress of the matter.
After some further discussion with the parties, the Master asked Mr Simpson if the respondent pressed for an interim suppression order until the hearing of the application. Mr Simpson said that he did not have instructions on that question but that he would press for an interim suppression order.
The Master then adjourned the matter for further directions to 4 December 2023. She listed FDN 45 and FDN 47 for hearing on 1 February 2024, on the basis that she would set a timetable for the filing of material for that argument at the directions hearing on 4 December 2023. The Master then said:
MASTER: In her reasons, Judge Bochner stated that there are circumstances where it is appropriate to make an interim order on the basis that the application is timetabled to a full hearing. Her concern was that the order was in place for an indeterminate period of time. I've heard from the parties today, and whilst I understand [DJB’s] concerns, I am also concerned that he not be exposed to any penalty if there are problems relating to s.121 of the Family Law Act and the Harman principle.
For that reason, I am prepared to make an interim suppression order, but it is only to be in place until the hearing and determination of FDN47. It will also be on the basis that the applicant can communicate with legal practices and legal advisors for the purpose of seeking legal assistance.[7]
[7] T10.14-29.
Relevant to this appeal, on 30 October 2023, the Master:
·Listed FDN 45 and FDN 47 for hearing on 1 February 2024;
·Put in place an interim suppression order pending the hearing and determination of FDN 47; and
·Listed the matter for a directions hearing on 4 December 2023.
The appellant has now appealed from the orders made by the learned Master on 30 October 2023. I set out in full the appellant’s grounds of appeal:
1.   Master Olsson, before making the suppression orders above, failed to afford the appellant any, or any reasonable opportunity to be heard in the circumstances which include:
1.1The matter was listed (after returning from appeal) for a directions hearing (not for argument) for Monday, 30 October 2023.
1.2 The representative for the respondent had advised the appellant by email at 1.01pm on Friday, 27 October 2023 that they had only that morning obtained instructions from the respondent and sought an adjournment by consent without the need for the attendance of the parties at Court on the Directions Hearing.
1.3 At no time did the respondent's representative refer to the issue of suppression order/s prior to the commencement of the Directions Hearing.
1.4 The appellant was unrepresented on the Directions Hearing.
1.5 That Master Olsson made the orders:
1.5.1 On her own motion.
1.5.2 Without prior notice to the parties that Her Honour intended to make such orders on the Directions Hearing.
1.5.3After the respondent had initially applied to Her Honour for an adjournment of "around about a month" (and had sought no other orders).
1.5.4 After the respondent's representative had informed Her Honour that the respondent had not given instructions concerning the issue of a suppression order.
1.5.5 After Her Honour, in affect, "coaxed" the respondent to make a verbal application for such orders, although the respondent did not, and had not, at any prior time sought an interim suppression order.
1.5.6 After Her Honour, Judge Bochner had published, unsuppressed, her reasons in the earlier appeal against orders of Master Olsson in this action (CIV-23- 003926) on 11 September 2023.
1.5.7 Against the weight of authority; that a Court ought not make suppression orders which mirror self executing legislative provisions.
1.5.8 After the respondent's representative had informed Her Honour that it was "retained on a very limited scope" and that "it may be premature to file such a notice" (of acting.) Form 181S
1.6     On the Directions Hearing, the appellant, as an unrepresented litigant taken by surprise, and dealing with a highly emotive issue, was particularly disadvantaged vis a vis the two lawyers for the respondent at the bar table.
1.7     The appellant, suffering disadvantage as he has been diagnosed with a psychiatric illness (including anxiety) caused by egregious allegations made by the respondent. (These matters being specifically pleaded in the appellant’s amended claim).
2. Master Olsson failed to afford the appellant procedural fairness as in all the circumstances, (including the matters in appeal ground 1 above and Master Olsson's earlier failures to afford the appellant procedural fairness as found on appeal by Bochner J) a fair minded lay observer might reasonably apprehend that Master Olsson might not have brought an impartial mind to the resolution of the interim suppression issue, and might not in the future, bring an impartial mind to the resolution of the two applications; FDN 45 (referral of questions of law) or FDN 47 (Suppression), or to the strike out application foreshadowed by the respondent, or to other questions to be decided in the appellant's claim.[8]
[8]    FDN 1, pp 63-64.
In essence, the appellant says that he was denied procedural fairness by the Master’s dealing with FDN 47 at the hearing. He says that she “coaxed” the respondent into seeking an interim suppression order. He says that he was taken by surprise in having the application dealt with and that he suffered from a special disadvantage, in that he was representing himself and he has a diagnosed psychiatric illness, which he says was caused by the actions of the respondent.
The appellant further says that the Master lacked impartiality and there was a reasonable basis to believe that she would not bring an impartial mind to the hearing of the interlocutory applications.
The appeal
At the hearing of the appeal, both parties represented themselves. The submissions were largely made by way of written submissions, with only brief oral submissions made by the parties.
The appellant’s submissions
The appellant’s submissions largely dealt with the question of apprehended bias. He also submitted she failed to afford him procedural fairness in that he was not afforded an opportunity to be heard.
With respect to apprehended bias, the appellant relies on decisions of the Master which led to the earlier appeal. He also seeks to rely on the fact that Mr Simpson had only recently been instructed and advised the Court that he had been retained on a limited scope.
The appellant says that he was taken by surprise by the Master’s raising the question of an interim suppression order; he submits that, in fact, it was she who pressed for the interim suppression order in circumstances where Mr Simpson indicated that he did not have instructions. He further submits that the Master had “pre-determined” that a recent case was applicable to his claim.
The appellant relies on the fact that my decision was not suppressed; he further submits that the principle of open justice is one that should not be readily overridden. He submits that the interim order did not comply with the s 69A(3) of the Evidence Act 1929 (SA), and that the period of three months, between the making of the order and the hearing of FDN 47 was unreasonable.
The appellant says that he has not waived the right to raise the question of apprehended bias on the part of the Master, even though he did not raise it at the hearing. His failure to raise it at the hearing was because he was unrepresented, taken by surprise and deprived of the opportunity to object as a result of the Master’s “coaxing” of the respondent to press for an interim suppression order. He was further taken by surprise by the Master’s reference to the case of MT v SE and her statement that it will have an impact on his case, in circumstances where he did not have the opportunity to consider the relevance of the case for himself.
The appellant submits that the Master failed to afford him a reasonable opportunity to be heard. The matter was listed for directions, not for argument, and the respondent had sought an adjournment. As a result, the appellant had attended to deal with the question of the adjournment and to seek orders for discovery and to have FDN 45 listed for hearing. He had no notice that the question of the suppression order was going to be raised.
The respondent’s submissions
The respondent says that, as the orders the subject of the appeal are of a procedural, interlocutory nature involving an exercise of the Court’s discretion, the appellant needs to establish an error of the type identified in House v The King.[9] She submits that the requirements of procedural fairness are flexible and adaptable to the circumstances of each case, so as to ensure that fair procedures are adopted.
[9] [1935] 55 CLR 499.
The respondent rejects the submission of apprehended bias on the part of the Master. She says that the orders were merely procedural in nature and remain in place only until FDN 47 has been determined; as such, they were made in accordance with the overarching principles of the Uniform Civil Rules 2020, to facilitate the “just, efficient, timely, cost-effective and proportionate resolution or determination of the issues in the proceedings”.[10] The respondent says that, in fact, in making the interim suppression orders, the Master was seeking to protect the appellant from inadvertent breaches of the Family Law Act 1975 (Cth) and the Intervention Orders (Prevention of Abuse) Act 2009 (SA).
[10] UCR 1.5.
The respondent further submits that, by lodging this appeal, the appellant has caused further delay, as the hearing of FDNs 45 and 47 have now been vacated.
The respondent makes further submissions on the need for a suppression order. While I have noted these submissions, I consider that these are matters to be raised at the hearing of FDN 47.
Consideration
The appeal must be dismissed in its entirety. I do not consider that the Master has exhibited any bias, nor do I consider that a fair minded lay observer would consider that there was a reasonable apprehension of bias.
The appellant should not have been taken by surprise when the Master asked the parties if FDN 45 and FDN 47 were being pressed. Given the outcome of the appeal, both of these applications remain on the Court file and have not been determined. It would have been more surprising if the Master had not asked the parties if they wished to press the applications.
No argument was heard at the directions hearing on 30 October 2023. I have read the transcript of that hearing with care, and it is clear to me that the Master sought to determine the attitudes of the parties to the applications and the other matters raised in the course of the hearing. FDN 47 was not argued on that day; most evidently, it was not, as it was listed for hearing on 1 February 2024. Neither the respondent nor the Court needed to put the appellant on notice that FDN 47 was to be a matter for discussion at the directions hearing; that should have been obvious from the outcome of the appeal. In any event, I do not consider that there was a denial of procedural fairness or any evidence of bias in the Master’s asking if the application was to be pressed and then listing it for hearing.
There was nothing inappropriate in the Master’s reference to the matter of MR v SE, particularly where reference to it was made first by the respondent. Once the case was referred to by the respondent, it was appropriate for the Master to bring it to the attention of the appellant. By doing so, she did not indicate in any way that she had prejudged the matter; rather, she was offering appropriate assistance to an unrepresented litigant.
To describe the Master’s conduct as “coaxing” the respondent is to mischaracterise completely her actions. It was appropriate to ask the respondent if an interim order was sought; this is a run of the mill question that a Master would ask almost routinely when faced with an application for a suppression order that was not being heard for some period of time. Given the history of this matter, the appellant should not have been surprised by this question.
I reject the appellant’s complaint that it was unreasonable of the Master to grant an interim suppression order in circumstances where the substantive application was not listed for a period of three months. The Master listed the application for hearing on her first available hearing date; as a result, it cannot be argued that there was undue delay in the listing of the application resulting in unreasonable prolongation of the interim order.
The fact I delivered my judgment on the last appeal on an unsuppressed basis is irrelevant to the question of whether it was reasonable for the Master to impose an interim suppressions order to the date of the hearing of FDN 47.
I consider that, having refused the respondent’s request for an adjournment, the appellant should have been in a position to deal with all of the matters outstanding on the file at that time, including FDNs 45 and 47. Once he refused to agree to an adjournment, he should have ensured that he was ready to deal with all of the matters likely to be raised. If he did not want, or was not in a position, to deal with those matters at the directions hearing on 30 October 2023, he should have consented to the adjournment sought by the respondent. He cannot, on the one hand, refuse to consent to the adjournment, and then, on the other, complain when the matter is progressed.
In summary, I find that there was no failure to afford the appellant procedural fairness. I find that there is no reasonable apprehension of bias on the part of the Master.
The appeal is dismissed.