PRACTICE AND PROCEDURE – applicant’s application for recusal on the grounds of actual and apprehended bias – recusal application proceeded on the papers due to applicant seeking adjournment of the hearing without prior notice – actual bias claim based on various case management decisions in the conduct of the proceeding – apprehended bias claim made on similar basis, including reference to past professional associations – applicant claims to be a person of public notoriety – has extensive involvement in past legal proceedings –consideration of legal principles concerning actual and apprehended bias – no sound basis for either allegation of bias established – application dismissed – costs awarded
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Dunstan v Orr [2022] FCA 1006
Case
[2022] FCA 1006
Decision Date
CaseChat Overview and Summary
In Dunstan v Orr, the applicant, Mr Dunstan, filed an interlocutory application seeking the recusal of the judge, Wigney J, on the grounds of both actual and apprehended bias. The application arose in the context of an ongoing proceeding between the parties, with various other interlocutory applications also pending. The court was required to determine whether the allegations of bias were substantiated and, if not, to dismiss the recusal application and award costs. The court found that Mr Dunstan's claims of actual bias were unfounded, as the case management decisions did not demonstrate any prejudgment or closed-mindedness on the part of Wigney J. Similarly, the apprehension of bias was not supported by evidence of past professional associations or any other relevant factors. The court concluded that there was no sound basis for the allegations of bias and dismissed the recusal application, ordering Mr Dunstan to pay the respondents' costs associated with the application.
Orders
Orders of the court
1. The applicant’s application that Wigney J recuse himself from hearing this matter on the grounds of apprehended bias or actual bias, being prayer 1 in the applicant’s interlocutory application filed on 20 July 2022 (the recusal application), be dismissed.
2. The applicant pay the respondents’ costs of and associated with the recusal application, including the costs of their legal advisers preparing for and appearing at the hearing on 2 August 2022.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
The current proceeding is at an early stage. There have been two case management hearings at which procedural orders were made for the further conduct of the proceeding. More will be said later about those case management hearings and procedural orders. It suffices at this point to note that the respondents have filed an interlocutory application in which they seek either the summary dismissal of Mr Dunstan’s application, or an order striking out his pleading (the summary judgment application). For his part, Mr Dunstan has filed two interlocutory applications. In the first of those interlocutory applications, Mr Dunstan seeks orders relating to the production and inspection of an unredacted version of a document that is said to contain handwritten notes made by Dr Molineux (the production application). The respondents’ summary judgment application and Mr Dunstan’s production application are currently set down for hearing on 20 and 21 September 2022. In Mr Dunstan’s second interlocutory application, he seeks various orders, including that I recuse myself from hearing this matter on the grounds of apprehended and actual bias, that the respondents’ summary judgment application be summarily dismissed and that either default judgment or summary judgment be given in his favour in respect of the principal proceeding (the recusal application). For reasons that will be explained shortly, this judgment deals only with Mr Dunstan’s recusal application. A PROCEDURAL ISSUE It is first necessary to deal with a procedural issue that arose in respect of the hearing of Mr Dunstan’s recusal application. After the recusal application was filed, a client services officer in the Court’s registry wrote to the parties and advised that I was minded to hear the recusal application on 2 August 2022. The parties were asked to indicate their position in relation to that proposal. In Mr Dunstan’s reply, he proposed that the application be heard in the week following 2 August 2022. He did not, however, state that he was unavailable on 2 August 2022. The respondents’ solicitors advised that they were able to appear at a hearing on 2 August 2022. The application was subsequently listed for hearing on 2 August 2022. As will be seen, Mr Dunstan has added the listing of the hearing of the recusal application on 2 August 2022 to his litany of complaints that form the basis of the claim of actual bias. On 27 July 2022, Mr Dunstan sent an email to the registry in which he stated that he was “feeling very unwell yesterday” and that he was “sick today, with bad flu”. After noting that he had been unable to complete his written submissions in respect of the production application by the stipulated date, Mr Dunstan said that, with “uncertainty” about his health, he was “not available for a hearing” on 2 August 2022 and that he requested that the hearing on 2 August 2022 be vacated. At risk of stating the obvious, it should be noted that Mr Dunstan’s email request to vacate the hearing of his recusal application was not supported by a medical report or certificate, let alone an affidavit. On 28 July 2022, a client services officer in the registry advised Mr Dunstan by email that the matter remained fixed for hearing on 2 August 2022 and that the grounds outlined for the vacation of the hearing were not considered sufficient to justify his request to vacate the hearing. Mr Dunstan did not reply to the client services officer’s email.
Ratio Decidendi
Legal Principle Established
Where “numerous separate aspects are relied upon to suggest a reasonable apprehension of bias, it will usually be necessary to assess the individual elements separately and then cumulatively”: Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240 at [176] (Basten JA, with Allsop P and Macfarlan JA agreeing); see also Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [114]; IOOF Australia Trustees Ltd v SEAS Sapfor Forests Pty Ltd (1999) 78 SASR 151; [1999] SASC 249 at 192; Tarrant J, Disqualification for Bias (Federation Press, 2012), 301.CONSIDERATION AND DETERMINATION It is appropriate to first consider Mr Dunstan’s allegation of actual bias. I will also consider whether the grounds relied on by Mr Dunstan in support of his allegation of actual bias are capable of demonstrating apprehended bias.Actual bias not established As the authorities discussed earlier indicate, to establish actual bias on my part, Mr Dunstan must prove that I have prejudged his case and am not open to persuasion – that I have reached a conclusion in respect of his case which is incapable of alteration, whatever evidence or arguments may subsequently be presented. The only evidence he relied on to support that serious and grave allegation is the evidence of what has occurred in respect of the case management of the proceeding to date. The suggestion appeared to be that I had so conducted myself in relation to the management of Mr Dunstan’s case that it disclosed that I had a predisposition against him or had a closed mind in respect of his case. The evidence concerning the case management of this proceeding to date provides no basis whatsoever for Mr Dunstan’s allegation of actual bias. That is so for a number of reasons. First, Mr Dunstan’s affidavits and written submissions substantially mischaracterise and misrepresent what has occurred in the case management of the proceeding to date. As for the subpoena, it is true that I refused Mr Dunstan’s application for leave to issue a subpoena in chambers and did so without providing reasons. As explained earlier in these reasons, however, that was in accordance with the Court’s practice and procedure in respect of such applications. It is incorrect to assert that I refused that application in a manner which was designed to conceal that I was the decision-maker and designed to conceal the reasons for refusal. Mr Dunstan was advised by the Court’s registry that it was open to Mr Dunstan to address the decision to refuse leave to issue the subpoena at the next case management hearing before me. It is equally incorrect to assert that the respondents failed to comply with the Central Practice Note in any material way and that I was obliged to “admonish” them for doing so. It is somewhat unclear how the respondents are said to have failed to comply with the Central Practice Note. If the alleged failure is said to be that the respondents failed to disclose the documents that were the subject of Mr Dunstan’s proposed subpoena, it is by no means apparent that the respondents were necessarily obliged by the Central Practice Note to voluntarily disclose those documents. There remains a material issue in respect of the production of the documents sought by Mr Dunstan. That issue is to be considered at the hearing of the interlocutory applications in September 2022.