Fulton v Chief of the Defence Force & Ors
[2025] HCATrans 39
[2025] HCATrans 039
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Canberra No C17 of 2024
B e t w e e n -
HEATH MAXWELL RYAN FULTON
Plaintiff
and
CHIEF OF THE DEFENCE FORCE
First Defendant
JUDGE OF THE FEDERAL COURT OF AUSTRALIA
Second Defendant
JUDGES OF THE FULL FEDERAL COURT OF AUSTRALIA
Third Defendant
STEWARD J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA AND BY VIDEO CONNECTION
ON TUESDAY, 27 MAY 2025, AT 9.33 AM
Copyright in the High Court of Australia
HIS HONOUR: In accordance with the protocol for remote hearings, I will announce the appearances for the parties.
MR D.D. KEANE, KC appears with MR Y. ARAKI for the plaintiff. (instructed by Operational Legal Australia)
MS Z.C. HEGER, SC appears with MS C.M.R. ERNST for the first defendant. (instructed by Australian Government Solicitor)
HIS HONOUR: There are submitting appearances for the second and third defendants. There are at least three short housekeeping matters. Firstly, Mr Keane, you have an application to amend your application?
MR KEANE: We do, your Honour.
HIS HONOUR: Is that objected to?
MS HEGER: No, it is not, your Honour.
HIS HONOUR: You have leave.
MR KEANE: Thank you, your Honour.
HIS HONOUR: Secondly, there are a series of affidavits. The first one I have is of Mr Fulton, dated 17 December 2024, then there is one of Ms MacDonald, 14 February 2025. There is one of Mr James of 25 February 2025. Another one of Ms MacDonald of 29 April 2025. Finally, is another one of Mr James, 30 April 2025. Mr Keane, do you object to any of the ones sworn or affirmed by Ms MacDonald?
MR KEANE: No, your Honour.
HIS HONOUR: All right. Ms Heger, do you object to any of the affidavits of Mr Fulton or of Mr James?
MS HEGER: No, your Honour.
HIS HONOUR: All right. They are all taken as read, so that is that. Finally, I have your agreed chronology, so thank you for that. I have also read all of the relevant papers. Mr Keane, is there an agreement between you and Ms Heger as to timing?
MR KEANE: We have not discussed it, your Honour.
HIS HONOUR: Would an hour each be sufficient? That is what we have allocated for this. All right, then. Well then, I will not keep you any further, Mr Keane.
MR KEANE: In addition to the material, your Honour, we read our reply submissions, which were filed on 25 February, and our supplementary submissions, filed 30 April.
HIS HONOUR: You can take them as read, and I have read them.
MR KEANE: Thank you, your Honour. Our submission is that there has been a jurisdictional error, where in the circumstances of the present case a fair‑minded lay observer would have a reasonable apprehension bias. Judicial impartiality is a necessary incident of the judicial function, and an essential ingredient in the maintenance of judicial legitimacy. Its importance is such that it not only need be done but it must unequivocally be seen to be done.
The importance of judicial independence is reflected in the protection of judicial conditions of the Constitution for Chapter III courts. This protection of conditions ensures that judicial offices are seen to be independent of threats. However, the present case raises concerns not of threats to conditions but an erosion of judicial independence through potential inducements of promotion.
It was already the case that the primary judge had an association to the first defendant, the CDF, in her role as a reserve member. However, what was not known to the plaintiff was that during the course of his judicial review – and in particular, prior to the hearing of the application, including an unsuccessful application to amend and obtain further discovery by the trial – the trial judge had applied for and was under consideration for appointment as the Deputy Judge Advocate General, the DJAG.
The Chief of the Defence Force, who was the respondent to the application, was required to and did approve her appointment. The process had commenced in December 2021, resulting in an application by Justice Perry for appointment as DJAG on 11 February 2022. While both Justice Perry and the first defendant were aware of this application, the fact of it was not disclosed to the plaintiff. The process played out during the hearing. Indeed, the report to the CDF recommending Justice Perry’s appointment was dated 12 September 2022, the day before the trial was the commence and three days after Justice Perry had refused the application to amend and seek further discovery.
The decision of Justice Perry was then reserved until 21 December 2022, when Justice Perry dismissed the plaintiff’s application and gave reasons for her discretionary decision to refuse the amendment of the discovery application. On 10 February 2023, Justice Perry was appointed as DJAG. No issue was raised by the plaintiff during the hearing, as he had not been informed of the application for appointment.
The promotion was not simply to the position of DJAG but also the prestige of being promoted from squadron leader to air commodore, which is the equivalent of a one‑star chief rank. It effectively skipped the ranks of wing commander and group captain. Not only was Justice Perry’s dependent on the approval of the CDF, following her appointment as DJAG, she was to come under the command of the CDF in the hierarchical Australian Defence Force.
A fair‑minded lay observer may have readily concluded that Justice Perry may have unconsciously decided in favour of the CDF to ensure that she did not harm her prospects of appointment and promotion. Courts have long ‑ ‑ ‑
HIS HONOUR: Mr Keane, can I ask you a question? I am sorry to interrupt you. Do you accept the submission of the first defendant, that her promotion did not involve an increase in pay?
MR KEANE: Yes, your Honour.
HIS HONOUR: Thank you.
MR KEANE: We accept, upon provision of the Remuneration Tribunal’s report, that there was no immediate pay increase. We accept, given that we understand that the age of retirement for reserve force members, I think, is 65 and the compulsory age for retirement is judges is 70, that it is probably unlikely that it will ever result in increased remuneration for Justice Perry.
HIS HONOUR: Thank you.
MR KEANE: Similar concerns about association have been long‑recognised. In the case of Peppin v R Grayson & Co Ltd [1910] St R Qd 383 at 385, where one of the two stipendiary magistrates was employed by the same firm as the complainant. It was held that there was a concern of bias; even though it may not be actual bias, the rule is to guard against unconscious bias.
Similar considerations were reflected in Fingleton v Christian Ivanoff (1976) 14 SASR 530, in particular at 533, 536 and 540, where a magistrate who was appointed to determine cases was effectively under the control of the complainant, who was the department head. The suggestion is not a suggestion of conscious bias, but that is what needs to be guarded against. What is of concern is the potential for unconscious bias, and a manifest appearance that justice is being done.
Your Honour, I do not propose to take you through the particular evidence in relation to the CDF’s approval of the appointment, given what your Honour has said about having read the materials. A matter of concern was that while this appointment process was entrained, continuing and undetermined at the time, which it could have been disclosed to the plaintiff, it was not. That may have been because it was confidential. If it were confidential and capable of being disclosed, then that itself is a matter which a fair‑minded lay observer would apprehend as raising concerns for the trial judge bringing an impartial mind. We accept what ‑ ‑ ‑
HIS HONOUR: Mr Keane – I am sorry, can I ask another question? When did your client first discover the fact of the appointment having been made? It does not appear in the chronology. If you want to have a think about that, that is fine.
MR KEANE: I will find the affidavit reference for your Honour.
HIS HONOUR: Thank you very much.
MR KEANE: I am told that it is May 2023.
HIS HONOUR: Thank you for that.
MR KEANE: I will find the affidavit reference, but I am told it is May 2023.
HIS HONOUR: That will do for the moment.
MR KEANE: It was, of course, after the hearing, and the decision was delivered. There is some contention raised in the respondent’s material and in their submissions that the latest that this apprehension should have been raised was 7 July 2023. That was after the hearing of the Full Court appeal before their decision was delivered.
The absence of disclosure is relevant to that issue. What we were going to say is that we accept the position stated in Aussie Airlines and approved in Ebner, that the duty of disclosure is an “imperfect obligation”, and that:
A failure to disclose is relevant (if at all) only because it may be said to cast some evidentiary light on the ultimate question of reasonable apprehension of bias.
And, of course, the position at 71 that:
The practice of making disclosure as . . . right or duty may distract attention from the fundamental question to be answered which is whether the reasonable apprehension bias test is established.
And:
Inquiring whether the moving party was denied some opportunity to make submissions on the question of disqualification to the judge in question is irrelevant. The question of disqualification can and will be litigated fully in the appeal or application for prerogative or like relief and no separate question of denial of procedural fairness could arise.
So, it is relevant to – the absence of disclosure, if it were a matter arising from the confidentiality of the process – which has not been explained, which might be inferred – is a matter which would weigh against the conduct of the trial by Justice Perry, considering the ability to disclose it would lead a fair‑minded lay observer to have concerns about judicial impartiality.
It is also relevant to these questions of waiver that arise slightly later, and in particular in relation to the asserted Anshun estoppel. At paragraph 41 of their primary submissions and paragraph 12 of their reply submissions, the first defendant says that a reasonable lay observer would not be concerned about the CDF acting vindictively against the plaintiff due to Justice Perry’s decision in the matter. Further, that Justice Perry would allow – it was fanciful to suggest that Justice Perry would allow the concern for the appointment to intrude on her decision‑making.
However, as we say, the concern is not an actual bias but a reasonable apprehension of bias, and concerns about unconscious bias are not liable. Further, the fair‑minded lay observer, as discussed by Chief Justice Kiefel and Justice Gageler in QYFM is not taken to be unduly complacent:
the observer is cognisant of “human frailty” –
And:
understands . . . attitudes] –
can be:
consciously or conscientiously discarded might still sometimes have a subconscious effect on even the most professional decision‑making”.
Applications for promotion themselves – and advancement – are notoriously stressful, and the standard is fickle. It would be a rare person who managed to completely the exclude the considerations consciously, let alone the insidious unconscious effect.
HIS HONOUR: What do you say, Mr Keane, about the relevance, if any, of the fact that the appointment to which her Honour was seeking was, in effect, one within the military justice system. In other words, she was being – as I understand it – appointed to a position which only a sitting or retired judge can fulfil as part of the system for military justice.
MR KEANE: Yes, your Honour. That is relevant because it is part of the system of military justice, and the CDF is the head of the military. It operates under that, and it is meant to operate independently. The fact that it is meant to operate independently and that the application is pending is a matter where a fair‑minded lay observer may have concerns that a person seeking such appointment may unconsciously prefer – departed the CDF as a way of showing that when they are exercising their independent function to which they are to be appointed, they will not unduly critical of the body to which they are appointed.
There are cases – well, there is a series of cases involving the same plaintiff – the matter of Luck – where she complained about Justice Tracey, who was the then DJAG, but they were distinguishable from the present case as they were Centrelink decisions rather than decisions involving the decisions of the CDF.
HIS HONOUR: All right, thank you.
MR KEANE: So, your Honour, there is no direct evidence from Mr Fulton as to when he discovered the employment of Justice Perry as the Deputy Judge Advocate General – the DJAG – but it is apparent from the affidavit of Ms MacDonald dated 30 April, of JCM‑2, that the FOI inquiry was made on 9 June 2023.
HIS HONOUR: As a working assumption, we will say it is some point prior to that date.
MR KEANE: Yes, and my instructions are that it was May.
HIS HONOUR: And after the hearing of the Full Court. Is that what I should assume?
MR KEANE: After the hearing, yes, your Honour.
HIS HONOUR: All right, thank you.
MR KEANE: We say the fair‑minded lay observer is certainly not so dispassionate that they would have no concern about a judicial officer presiding over a case where one party was in the process of deciding whether that judicial officer would receive a promotion, with the effect that they would then be stationed under ‑ ‑ ‑
HIS HONOUR: But the point about her being a Deputy Judge Advocate General was that, for the purposes of fulfilling her duties in that role, she is not subject to the control of the Chief of the Defence Force. She cannot be ordered ‑ ‑ ‑
MR KEANE: She is to be independent was the point.
HIS HONOUR: She is to be independent, yes.
MR KEANE: And the insidious effect there, your Honour, is that she is to be independent once appointed, and so the unconscious concern of a person being ‑ ‑ ‑
HIS HONOUR: I understand.
MR KEANE: The other aspect here is a concern about association. In making the application, Justice Perry communicated indirectly with the CDF by seeking her employment by making the application. It cannot be said to be a disinterested communication in circumstances where it sought appointment and with its . . . . . promotion in the ranks.
HIS HONOUR: All right.
MR KEANE: Now, our position is: on that basis, your Honour will be satisfied that there is a jurisdictional error arising from an apprehension of bias. Then, from that point, your Honour, the question for the Court is to consider the discretionary factors that have been raised by the respondent. They appear to be, effectively, as follows: Anshun estoppel, waiver, the exercise of the right to appeal and delay.
At the outset, we submit that there is no allegation of any particular prejudice arising from the first defendant. There is no submission that any delay has been reductive of prejudice to the conduct of any rehearing of the matter in accordance the law or that, in the period of a delay, a necessary witness has become unavailable. The point in relation to Anshun and waiver proceeds from the point that upon receipt of the communication from Cassandra, which is at JCM‑4 of the affidavit of Jessica MacDonald ‑ ‑ ‑
HIS HONOUR: I have that.
MR KEANE: Thank you, your Honour. It is at page 14. At that point, following the hearing of the Full Court, the plaintiff should have applied to reopen, and having failed to apply to reopen on receipt of that material, the plaintiff has acted unreasonably in the matter considered by Anshun, or has otherwise waived their rights.
The difficulty with that submission is that it proceeds upon the basis that the information provided was sufficient to compel the plaintiff to make that request. A couple of matters arise. Firstly, an examination shows that none of the documents identified give a reference to the date. Secondly, the email does not in terms suggest that these documents exist. Only that the FOI request should be amended to include them in the scope. To the extent that it would infer that these documents exist, they could only be said to be a hearsay assertion, from Cassandra, of the documents’ existence.
What is proposed was an application to reopen and adduce fresh evidence on the reopening. The email itself manifestly does not meet the requirement of reopening, that the material be highly probative and highly creditable. That cannot be said to the case until the documents are provided under the FOI request, and that is after the delivery of the decision of the Full Court. Certainly, given the seriousness of the allegations, it was appropriate for the plaintiff to review the documents prior to seeking to reopen.
In the event, the decision of the Full Court was delivered prior to the receipt of the documents, and so in this regard, the criticism of the plaintiff is misguided. Having not received the documents, it cannot be said that he acted unreasonably in not bringing a ground of appeal that had not been disclosed to him, where he is in the course of making further inquiries. Once the plaintiff was in receipt of the documents, the Full Court had discharged its function, and the course of reopening or seeking a prerogative writ were both open.
This is not a case where there has been a forensic decision not to advance the jurisdictional challenge in the appeal, as the information was not liable. There is no provision for an estoppel. Likewise, the relevant knowledge which is the precondition to waiver is not made out. The plaintiff did not take any judicial action which was inconsistent with his right to challenge the jurisdiction once he became aware of it, and it has long been held that we made the reference to Serjeant v Dale (1887) 2 QBD 558 at 568, that a party is not able to acquiesce to a partial hearing where they were unaware of the conflict arising.
We also submit that the cases relied on by the first defendant in relation to this were decided prior to the honourable Court’s decision in QYFM, where, at paragraph 57, it makes it clear that there is no way once jurisdictional error is established, and the decision is to be discharged and it can have no effect. It is to be remembered, in that case, the Federal Court was comprised of three members, only one of whom was . . . . . but that was sufficient to amount to jurisdictional error to discharge the case. Likewise, the submissions about the appeal curing the jurisdictional error – one, it was decided prior to QYFM, and so, we say, unhelpful to the Court, but we say, further, that the position that we highlight in our reply submissions at 21 to 22 and our supplementary submissions, where a party is entitled to a fair trial on the appeal but also a fair trial at first instance, should apply in the present case.
That is particularly so in circumstances where – one of the matters was a discretionary decision, which is implicitly one which is given . . . . . and the structure of the appeal in the Federal Court under sections 23P to 30 of the Federal Court of Australia Act provide for a rehearing rather than a de novo trial. In those circumstances, we say that the limits that are placed on an appeal court arising from decisions like Fox v Percy would weight against a finding that you should proceed on the basis that any failure to accord jurisdictional fairness at an impartial hearing are attuned by the relevant appeal.
Now, the next point your Honour is delay, and we accept that the application was filed out of time, but in circumstances where no steps inconsistent with our client’s assertion of his right to an impartial hearing have been made, the delay does not weigh heavily. The key consideration for the Court is the merits of the decision and the strength of the particular case, and that is particularly so in circumstances where the power arises from section 75(v) of the Constitution, which is not limited by time, and we address that in our reply submissions in paragraphs 5 to 16, and in particular a passage from S157 at paragraph 14.
In this case, certainly, the asymmetric nature of the information should bolster this view, given the lengths that we were required to attain to obtain this information. The importance of the strength of the plaintiff’s claim in deciding whether to grant the writ were considered recently in Plaintiff M114/2024v Minister for Immigration, Citizenship and Multicultural Affairs [2025] HCASJ 15, which was a decision by her Honour Justice Gleeson. In particular, we refer to paragraphs 12 and 13.
Your Honour, unless you have an questions you would like us to address, those are our submissions.
HIS HONOUR: Thank you, Mr Keane. Ms Heger.
MS HEGER: Your Honour, I propose to deal with five issues in turn. First, that the failure to raise this issue of apprehended bias before the Full Federal Court gives rise to a waiver or Anshun estoppel. Secondly, that if your Honour reaches this question, there was in fact no reasonable apprehension of bias.
Third, that even if there was such an apprehension, the Court should decline to grant relief, because the appeal to the Full Federal Court provided an effective remedy for any jurisdictional error at first instance. Fourth, I will briefly deal with the lay, and then fifth, briefly deal with the orders sought, including what is sought in respect of the costs below at first instance and on appeal.
Turning then to the first point that the failure to raise the issue of apprehended bias before the Full Federal Court gives rise to a waiver or Anshun estoppel. In respect of waiver, the cases are summarised in the article which we have referred to at footnote 1 of the response to the application for a constitutional writ, but they include cases your Honour will be familiar with. For example, Vakauta v Kelly 167 CLR 568 at 572, and the Michael Wilson Case 244 CLR 427 at paragraph 76.
Insofar as Anshun estoppel is concerned, there is a helpful summary of the principles in the Navazi decision – which we have provided to the Court – which I will go to briefly, because it was in some respects a similar set of circumstances to what we have here. Navazi [2015] NSWCA 308. So, this was a case where the applicant had pursued an appeal from the Consumer Tenancy Tribunal to the District Court; it was an appeal on a question of law.
That appeal was dismissed, and then the applicant subsequently brought judicial review proceedings in respect of both the first instance tribunal decision and the appellate decision of the District Court. From paragraph 101, his Honour considered Anshun estoppel, citing the familiar principles at 101 and 102, and particularly at 102, that:
The test is whether it was unreasonable for the claimant in the second proceedings not to have raised the contention in the first proceedings.
Then, at paragraph 103 in the last sentence:
The fact that the issue was apparently overlooked by the applicant’s legal representative is not a sufficient basis for concluding that it was not unreasonable –
At 105, his Honour observes the argument there:
was clearly available and supported by authority at the time –
of the appeal:
in the District Court –
At 106, it said:
This is no mere technicality. Whatever the position where a District Court appeal and judicial review proceedings are run concurrently, a party who has not brought his or her whole case forward on the appeal should not be permitted, in the absence of a satisfactory explanation for the omission, to rerun the appeal in the form of an application for judicial review of the original decision.
And refers to the:
principle of finality of litigation –
That it is important:
to get it right the first time”.
Of course, in that case, it was found that Anshun estoppel did apply, and we say it should apply here. The arguments we make are, for present purposes, identical to the arguments we would make in support of a waiver arising. The first point is that, in our submission, the plaintiff was aware of the essential facts which would give rise to a claim for an apprehension of bias prior to the Full Federal Court delivering judgment on 18 August 2023.
Can I take your Honour to the second affidavit of Ms MacDonald of 29 April 2025, starting at page 6. There you will see extracted the terms of the plaintiff’s FOI request, which refers expressly to the appointment of Dr Perry, and we now have an admission by the plaintiff’s counsel that the plaintiff was aware of the appointment of Dr Perry prior to this application being made. There is also a reference in the third dot point, about halfway down page 6 ‑ ‑ ‑
HIS HONOUR: Ms Heger, just before you go on, I take it that it is accepted that the person identified as the recipient of this email is one and the same as the plaintiff.
MS HEGER: I understand it is agreed that that is an alias the plaintiff ‑ ‑ ‑
HIS HONOUR: I see.
MS HEGER: ‑ ‑ ‑ used in agitating this FOI application.
MR KEANE: We do accept that, your Honour.
HIS HONOUR: All right, thank you.
MS HEGER: About halfway down the page, in the third bullet point, you will see a reference to:
Expressions of Interests received –
This, we say, is the plaintiff indicating that he believed or was proceeding on the basis that this was the sort of process where someone lodges an expression of interest, which is not surprising. People are not just plucked out of thin air for appointments of this kind. In the fifth bullet point there:
any declared or known conflicts of interest of the successful candidate –
So, that is suggesting that the plaintiff was contemplating at this point that there might have been some conflict of interest on the part of the successful candidate being her Honour Justice Perry. So, terms of the FOI application in and of themselves suggests that this is something the plaintiff was contemplating, that Justice Perry might have had a conflict of interest in determining his judicial review application by virtue of a possible expression of interest made by her for this position.
Turning then to page 14, to which your Honour has already been taken, you have an officer of the Department of Defence saying that the scope should be revised to include:
1.A copy of the Report to the Chief of the Refence Force: Recommendations for appointment of the Deputy Judge Advocate General – Air Force;
2.A copy of the Decision Brief for CDF: Recommendations for appointment of the Deputy Judge Advocate – Air Force –
and it goes on. So, what this makes crystal clear, we say, is that there was a report provided to the Chief of the Defence Force, that that report concerned recommendations for appointment to this position, and that the CDF was expected to make a decision in that regard, because he has been provided with what is called a decision brief.
Now, my learned friend submitted today that this is all hearsay evidence and who knows whether these documents existed or not. Of course, we say they would be business records. There is no indication that they were prepared in contemplation of any litigation, and so that exception would apply. Further to that, here you have an officer of the Department of Defence referring in very specific terms to what appear to be documents that one can infer exist. My learned friend suggested, well, we had no way of knowing whether these documents existed or not. There is no basis for thinking an officer in the Department of Defence would be inventing or suggesting that these documents existed if they did not otherwise exist.
HIS HONOUR: Ms Heger, do you rely at all on the reference in JCM‑3, which is an email from the plaintiff to FOI case management? At the end of the first paragraph, the plaintiff writes:
I could only guess the authorising members to be the senior JAG and/or Defence Secretary/Defence Force Chief.
MS HEGER: Yes, thank you for reminding me of that reference. We do rely on that, because it suggests that at this point the plaintiff had in his mind that one real possibility was that the Chief of the Defence Force was involved.
HIS HONOUR: Do I take it that your case is not so much that it was sufficient at this stage for an application to be made in full to the Full Court, rather that the Full Court should have been told not to hand out its judgment because there was a potentially serious issue which we are investigating about whether the Chief of the Defence Force was involved in the appointment of Justice Perry to Deputy JAG whilst the trial was pending and then reserved and then handed down. Is that how it is put?
MS HEGER: Well, we would put it both ways in the alternative. So, certainly there was enough to inform the Full Federal Court that there was a serious issue that was being investigated, but we say, having regard to the principles of reopening, that there was sufficient material at this time to make an application to reopen the hearing of the Full Federal Court appeal.
Having regard to the principles on reopening, which most recently and famously have been outlined by the Full Federal Court in the Ben Roberts‑Smith Case, considerations include whether there is an arguable case for the new point to be made and the prospects of it, whether there is prejudice to the other party and whether there is a reasonable explanation for the point not having been taken in the original hearing. We say there was certainly enough for the plaintiff to make a good argument on all of those ground.
Hard to see what the prejudice would have been to the Chief of the Defence Force for a reopening of the Full Federal Court appeal at this time, given that the hearing had only been conducted on 22 May. Indeed, the parties were still providing written submissions up until 30 June because there had been a request for additional submissions on certain topics. So, it was only a week prior to this email being received that the last set of submissions had been lodged, so that delay needs to be viewed in that context. It was not long after that that this information was discovered.
For that reason, certainly a reasonable explanation for not having raised the point at the initial Full Federal Court hearing. So, we would put it in both ways in the alternative. Following on from that email at page 14 of the bundle, the plaintiff then, at page 20, agreed to amend his application in those terms, but adding – as you will see at page 20 – particularly, point 6:
Any record which identifies all the conflict/s of interest for Melissa Perry in being appointed to the Deputy JAG position.
Again, still clear that the plaintiff was contemplating that there was an issue in that regard in her dealing with his case. So, summarising what flows from all of this: by 7 July, the plaintiff knew Justice Perry had been appointed to the role, and likely knew this had occurred some months earlier, because it is publicly available information when these appointments are made; should have inferred that she had expressed interest in that role, having regard to the terms of his own FOI request and having regard to the fact that the plaintiff has experience in the Defence Force and should infer that these sort of appointments do not get made out of thin air, that an expression of interest process is likely to have taken place and that she was likely to have put in an expression of interest at some point; and should have inferred that that likely occurred several months before her appointment, because these things take time, and so that it was likely or it was possible that that application was outstanding prior to Justice Perry’s judgment being delivered on 22 December and clearly where, by this time, that the CDF had been involved in reviewing recommendations for appointment to this position.
So, we say all of that was certainly sufficient at least to write to the Federal Court and say this matter was being investigated, if not to make the application for a reopening and then, if necessary, issue any notices to produce, or the like, to defence for any further information that was required. It was unreasonable not to have raised that in the context of the Full Federal Court appeal for the reasons I have already outlined. Clearly, it would have been central to the disposition of the appeal, because, as your Honour knows, that is really a threshold question for the Full Federal Court to determine, as we have seen from the authorities cited in our response at paragraph 13, and particularly the Concrete 229 CLR 577 decision, where it was said the Full Court should have dealt with apprehended bias as a threshold issue by some members of that court, because if allowed it would have resulted in a retrial.
HIS HONOUR: Ms Heger, we know there was an FOI request, and we know it was in the context of the plaintiff wanting to know more about how Justice Perry was appointed. Was there any attempt made to simply contact the lawyers for the Chief of Defence Force just to ask them: did your client have any role to play in the appointment of Justice Perry?
MS HEGER: Not as far as I am aware, but I will ‑ ‑ ‑
HIS HONOUR: Being modal litigants, presumably he would have answered honestly.
MS HEGER: You could expect that as a modal litigant. I am not aware of any request being made; I will just ask my instructors to confirm the position.
MR KEANE: I can confirm no request was made.
HIS HONOUR: All right. Thank you, Mr Keane.
MS HEGER: As I have said, it was unreasonable not to have raised that, having regard to the prospects of a reopening application that I have already dealt with, and in circumstances where submissions were still being made up until 30 June. My learned friend made a submission this morning that the Court’s decision in QYFM, at paragraph 57, establishes that waiver cannot arise if there has been jurisdictional error.
In my submission, paragraph 57 does not stand for that. The Court was not dealing with the question of waiver, there. In that paragraph of the reasons, which was part of Chief Justice Kiefel and Justice Gageler’s reasons, they were simply saying that apprehended bias on the part of one judge would taint the court’s jurisdiction as a whole.
HIS HONOUR: In a sense, Ms Heger, whilst the matters you raise, on one view, give rise to issues of Anshun estoppel, waiver and so on, but at the end of the day – at least in relation to the writ of certiorari – there is an application for an extension of time. These issues do go to the question, potentially, of how the power enlarge time should be exercised.
There is a decision of Chief Justice Gageler in a matter called Vella v Minister for Immigration and Border Protection 90 ALJR 89, where his Honour makes that point very clear that that was again an application for extension of time by someone who had exhausted their appeal rights elsewhere and had suddenly discovered a new point that they wanted to raise in the original jurisdiction of this Court. So, the issues you raise may go to that issue, as well.
MS HEGER: They would certainly go to the question of discretion, as well. I have not reread Vella recently. The difference with that case might be that it was truly a new point that the applicant was not alive to during the appellate process. Of course, the difference here is that we say the plaintiff was alive during the appellate process.
HIS HONOUR: No, I understand that. All right.
MS HEGER: Certainly, in the Navazi Case, Anshun estoppel was treated as an answer to the application such that the applicant was no permitted to raise the point at all, but certainly could be taken into account in the exercise as well, as your Honour has outlined. Can I move then to the second point, which is that on the merits there was no reasonable apprehension of bias here.
Of course, the test is uncontroversial, and we have extracted three elements to it in paragraph 11 of our supplementary submissions. What we had emphasised, particularly for present purposes, is the third element, an assessment of reasonableness, that it needs to be a reasonable apprehension held by the fair‑minded lay observer. Ultimately, our submission is that even if it could be postulated that a fair‑minded lay observer might think this, it would not be a reasonable apprehension for the reasons that I am about to elaborate.
The plaintiff’s argument must be this. They are submitting that Justice Perry effectively had an interest in the outcome of the judicial review proceedings because her Honour might have thought a judgment adverse to the CDF would harm her prospects – or might harm her prospects – of appointment to the position of Deputy Judge Advocate General. In other words, the lay observer might reasonably apprehended, it must be said by the plaintiff, that her Honour would be so concerned that a finding against the CDF would prejudice her application, that she might be more inclined to decide this judicial review application in the CDF’s favour.
Of course, an essential of that submission is that Justice Perry was aware of the CDF’s involvement in this process, noting that the ultimate decision under the statute was one to be made by the Governor‑General, and we have conceded, at paragraph 18 of our response, that her Honour was aware that the CDF was involved in the process to the extent of reviewing recommendations for appointment. Now, there is no evidence before your Honour of that awareness on the part of her Honour, but as a model litigant, we have accepted that to be the case.
Otherwise, for the abundance of clarity, there was no evidence that her Honour was aware of any of the other factual matters that are outlined at part IV, points 8, 12 and 13 of the plaintiff’s application. So, there was no evidence that her Honour was aware of when the panel met to consider her application or when the Chief of the Defence Force was provided with this decision brief or made the decision. Now, I do not say that anything in particular turns on that, but just for clarity, we do not accept that her Honour was aware of all of those steps in the process.
As I have foreshadowed, our submission is that here – it is not simply that a lay observer might consider the CDF would be or might be so unhappy with an adverse outcome in the judicial review proceedings that in the course of reviewing recommendations he might intervene against Justice Perry’s appointment, it is also that the lay observer might think that Justice Perry thought the CDF was capable of acting in such an improper and, on one view, vindictive way.
We submit it is plainly fanciful that the CDF would act so improperly, and it would highly improper for the CDF to recommend against her appointment simply because she had found that a delegate of his – not him, but a delegate of his – had failed to act with accordance with the law, and highly improper in circumstances where, as your Honour has noted, it is to be expected that someone appointed to the role of Deputy Judge Advocate General exercises that role independently. Independence in judicial decision‑making is an asset to that role, not a negative.
HIS HONOUR: My understanding, and maybe this can be checked, but I think the oath of office of a Judge Advocate General is exactly the same, materially, as that of a justice of the Federal Court.
MS HEGER: I do not know the answer to that, but I suspect that is right and I can have that checked, as well, by my instructors in the course of my submissions.
HIS HONOUR: Thank you.
MS HEGER: As your Honour noted, in that role, not subject to the direction of the Chief of the Defence Force. So, independence in that role is paramount. I should just note, I think your Honour indicated that to be appointed Deputy Judge Advocate General, one must be a judicial officer. I think that is right in the case ‑ ‑ ‑
HIS HONOUR: Or a retired judge.
MS HEGER: Or retired. I think that is right in the case of the Judge Advocate General, but in the case of a deputy, under section 180 of the DefenceForce Discipline Act, one can also be a lawyer – a legal practitioner of five years standing.
HIS HONOUR: Thank you for that.
MS HEGER: I do not think anything turns on that, necessarily, but I thought I should correct that for an abundance of caution.
HIS HONOUR: Thank you.
MS HEGER: So, we say it is fanciful that a lay observer might apprehend or, certainly, reasonably apprehend that the CDF could act so improperly, but also that it is unreasonable to think Justice Perry, who can be taken to understand something about the decision‑making responsibilities of the CDF, would be genuinely concerned about the possibility that the CDF might act in such an improper and arguably vindictive way.
Now, the plaintiff’s argument might be stronger if this was a case where her Honour was being asked to determine the validity of a decision made by the CDF personally, on the grounds that he himself had not adopted proper processes or the like, but we are not even in that territory. As I said, this was a decision of the delegate, not the CDF himself, and it is even more unlikely that the CDF would act in such an improper and vindictive way, merely because of her Honour finding that a delegate of his had not acted in accordance with the law.
My learned friend added to the factual matrix that her Honour failed to disclose her application and that that should bear upon the lay observer’s reasonable apprehension. Of course, there is no evidence one way or the other as to the reasons why her Honour did not disclose whether her Honour realised she had a pending application but did not because it was confidential or whether her Honour simply forgot that the application was pending by the time that she got to the hearing.
There is just no evidence one way or the other, and we say, if your Honour accepts the other submissions that I have made, the fact that Justice Perry did not disclose the pending application is not something that could transform an unreasonable apprehension into a reasonable one. It does not weigh heavily in the decision your Honour has to make here. We say that the approach that I have outlined is consistent with the approach taken in Ebner itself, which was, of course, another interest case, but in that situation, an even more direct interest in that, in one of the cases determined in Ebner, the judge held shares in one of the parties to the proceedings.
The Court approached the issue by asking: was there a realistic possibility that the judgment in that case would affect the value of that shareholding? And they considered there was no such real possibility and concluded the judge should not have been disqualified. We would say here, likewise, there is no realistic possibility that an outcome adverse to the CDF in this judicial review proceeding would adversely affect her Honour’s appointment to the position of Deputy Judge Advocate General. That is all I wish to say about the second point, whether there was a reasonable apprehension.
HIS HONOUR: All right. Thank you.
MS HEGER: My third argument is that the Full Federal Court hearing provided an adequate remedy for any apprehension of bias at first instance, and your Honour should decline relief on that basis. The way we put the submission is to say that the availability of that appeal has provided a sufficient remedy.
We do not say that such an appeal – any sort of appeal in any context provides a sufficient remedy, but we do say that where you have an appeal which is by way of rehearing, and as of right, on any issue of fact or law with the ability to receive further evidence, as the Full Federal Court does, and in circumstances where the Full Federal Court was at no particular disadvantage, as compared to Justice Perry, in dealing with the question of whether the decision had been invalidly made, as there was no issue of credit or alike at first instance – in all of those circumstances, the appeal to the Full Federal Court provided an adequate remedy.
For that, we rely primarily on the Court of Appeal’s decision in Hill v Green, which was provided to your Honour. That was a case about procedural fairness – a denial of procedural fairness, not apprehended bias, but we would say the principles can be applied in the context of apprehended bias, as well. So, Hill v Green was a case dealing with whether an administrative decision‑maker had denied the applicant procedural fairness. The applicant sought judicial review of that decision in circumstances where there was a statutory right of appeal available to a tribunal, and that application for judicial review was dismissed in an appeal to the Court of Appeal.
The leading judgment was written by his Honour Justice Fitzgerald, with whom the Chief Justice and Justice Beazley agreed. Can I take your Honour to paragraph 151. There, it is said:
A decision which is subject to appeal and an appeal from the decision are usually treated . . . as parts of a single “decision‑making process”, and an adequate right of appeal, which provides the appellant with a fair procedure for the determination of all matters in dispute, factual and legal, usually provides an answer to a complaint that procedural fairness was denied –
Then his Honour goes through the different ways that principle has been articulated in different authorities. At 156, his Honour refers to some decisions which refer to the appeal curing:
a failure by an original decision‑maker –
But his Honour says that he does not find that way of putting it particularly persuasive. What his Honour does adopt is at 157, and which he says:
which has received the most assent is that an adequate right of appeal ordinarily provides the appropriate remedy for a denial of procedural fairness at the stage of an initial determination –
He goes on to discuss the Twist decision, which was a de novo hearing, and so we accept that type of hearing is different to what we have here, in that you have a full do‑over on the facts of the law. Importantly, none of the decisions have limited – expressly limited – this principle to a de novo hearing.
In fact, as his Honour goes on to say, by reference to the Marks decision, which he discusses at paragraph 161, and the appeal in that case is closer to the sort of appeal we have here to Full Federal Court. What he then says at paragraph 164 is that:
In the absence of “plain words of necessary intendment”, an initial decision‑maker is required to provide procedural fairness . . . However, the relief available in respect of such an error is ordinarily confined to any statutory right of appeal –
And then he goes on:
A full appeal on facts and law will ordinarily be adequate for that purpose, even if the appeal involves routine forensic disadvantages compared to a “first instance” re‑determination.
And at 165 concludes that the appeal to the tribunal in that case was not sufficient to deny relief, but that was because of the reversal of onus that occurred in the context of that appeal, which is not what we have here. His Honour the Chief Justice, at paragraph 55, likewise favours adequate remedy analysis.
HIS HONOUR: Can I ask you, Ms Heger, it is fairly well‑known from Twist that procedural fairness can be cured. Have you been able to find any cases involving the curing of apprehended bias?
MS HEGER: No.
HIS HONOUR: What might be put against you is that there may be a difference between to two categories of case, with apprehended bias being something which goes so fundamentally to the persons entitled to a fair trial, that once it is present, it sort of infects everything fundamentally, where, for example, you only need to show that it is material as an error. In any event, that is something I will have to think about.
MS HEGER: Yes. There is this difference, in that a denial of procedural fairness is about whether a fair hearing was in fact given, whether there was in fact an opportunity to present the case that the applicant wished to present, which of course falls away once they have a second opportunity to do that in an appeal. An apprehension of bias is a little different, in that that is about public confidence and maintaining public confidence in judicial decision‑making, which can be harmed by an apprehension of bias.
We would say that, in the same way, once you get to the stage of three impartial judges on a full hearing on fact and more, admittedly where error needs to be demonstrated, but on a full hearing of fact and law with the ability to receive further evidence, and where in this case in fact a lot of the same arguments were run on appeal – well, most of the same arguments were run on appeal that were run at first instance – that a hearing of that kind by the Full Federal Court can alleviate the concerns about public confidence, because you have an impartial court looking at the issue again and concluding that there was no error made. So, I accept that there are differences, but we say that the principles can be extended to this sort of situation, as well.
HIS HONOUR: All right.
MS HEGER: On one view, there might be some tension about that submission and what was some of the observations about some members of the Court in the Concrete 229 CLR 577 decision, to which I have referred earlier. Particularly, the point that was made by their Honours Justices Kirby and Crennan, that:
Even if a judge is found to be correct, this does not assuage the impression that there was an apprehension of bias.
At first instance, and if left uncorrected, that adversely affects public confidence in the administration of justice. For those observations ‑ ‑ ‑
HIS HONOUR: What paragraph was that, sorry?
MS HEGER: That was paragraph 117 of Concrete ‑ ‑ ‑
HIS HONOUR: Thank you.
MS HEGER: ‑ ‑ ‑ with which Acting‑Chief Justice Gummow agreed. So, on one view, that is in tension with the submission I have just made, but we would say that, in that case, the point about an appeal being an adequate remedy was not agitated. That was not the issue that the Court was determining in that case. Rather, there were just two grounds of appeal. One was about apprehended bias; one was about the existence of the implied licence.
Both were agitated, and no one suggested that because of a Full Hearing in the Full Federal Court on the substance, the question of apprehended bias just did not matter. It seems no one made that submission, so that is why we say the observations, which on one view are in tension with our submission, do not foreclose this argument, because that was just simply not the issue that was before their Honours.
In fact, Justice Callinan’s observations at paragraph 172 are consistent with our submissions, because his Honour said it was unclear why the Full Court, having dealt with the substance – the implied licence issue – even found it necessary to deal with apprehended bias. So, his Honour seems to have thought that the appeal could have been disposed on the implied licence point without having to worry about whether there was apprehended bias at first instance. So, that is consistent with the position that I am putting now.
Then I wish to say something briefly about my fourth and fifth points, which is delay and then the orders sought by the plaintiff. Delay can be relevant to your Honour in two ways. One is a matter of discretion which would ordinarily be available in any application for certiorari, but of course, also because of the time limit imposed by the High Court Rules, which your Honour has a discretion to extend, of course, under rule 4.02.
We say that, in circumstances where this issue could have been raised before the Full Federal Court for the reasons I have already outlined, the delay should be measured from July 2023, but in any event, even on the plaintiff’s own case, the delay has to be measured from when the special leave application was refused, which was 8 February 2024, and no explanation has been provided for why the plaintiff delayed 10 months, until 18 December 2024, to commence these proceedings. No explanation whatsoever, in circumstances where they accept they had these documents back in August 2023.
Now, we do not say any prejudice arises, but to permit an application to be brought in those circumstances, where there is simply no explanation for that 10‑month delay, that does significantly undermine the principle of finality to which I referred earlier. Finally, on the question of the orders sought, in the amended application, your Honour will see that the plaintiff now seeks a writ of prohibition in respect of the costs orders made at first instance and on appeal. So, if your Honour looks at, in part I, paragraph 1(c), a writ of prohibition ‑ ‑ ‑
HIS HONOUR: Yes, I have that.
MS HEGER: ‑ ‑ ‑ issued to the first defendant, prohibiting them from enforcing order 2 of 18 August. So, that is the Full Federal Court’s costs order requiring the plaintiff to pay our costs, and order 1 of 27 February, and that is Justice Perry’s order requiring the plaintiff to pay our costs.
We say, insofar as that applies to the orders of the Full Court, that the writ of prohibition is redundant, because the plaintiff already seeks certiorari in respect of that costs order, and there is no suggestion that if your Honour were to set aside the costs order that my client would nevertheless proceed to attempt to enforce it. So, a writ of prohibition is simply unnecessary. Insofar as one seeks a writ of prohibition ‑ ‑ ‑
HIS HONOUR: Can I ask you this. Is it technically available for proceedings that have come to an end? Can you get prohibition in those circumstances?
MS HEGER: As a matter of principal ‑ ‑ ‑
HIS HONOUR: Classically, prohibition is about a proceeding that is about to start or has started, and it is infected with various things they wish to stop.
MS HEGER: Yes. Certainly, that is one situation in which prohibition can be sought. As I understand it, prohibition ‑ ‑ ‑
HIS HONOUR: And then when you have a proceeding that is ex temp, it is effective, but they would only use certiorari to quash.
MS HEGER: Ordinarily, you would use certiorari, although I think, strictly, it is possible to seek prohibition if there is some concern that despite the order having been set aside, someone is proposing to act upon it. I suppose that is logically a possibility, although highly unusual, and I am not aware of an order being made in those circumstances, and we say it certainly would be ‑ ‑ ‑
HIS HONOUR: Is the first defendant relevantly acting in a capacity whereby he or she is affecting . . . . . at law when they are enforcing an order of the Court in their favour for costs. I mean, you could not get this against an ordinary litigant, could you? Rather than it being the Chief of the Defence Force, it was just BHP or someone like that, you could not get prohibition.
MS HEGER: No. I think that is right.
HIS HONOUR: All right. I interrupted you, I apologise.
MS HEGER: For all of those reasons, that is why your Honour should not order a writ of prohibition in this respect. Insofar as Justice Perry’s costs order is concerned, the plaintiff has not sought certiorari in respect of Justice Perry’s costs order. If they do wish to challenge Justice Perry’s costs order, one would have thought certiorari was the appropriate relief to be sought, rather than prohibition.
In any event, we would say it would not follow from the plaintiff’s success in these proceedings that he should not pay the costs at first instance and on appeal, because, of course, my client was successful on both counts on all the arguments that were then run. So, it does not follow that, if apprehended bias is established, my client should have to pay the plaintiff’s costs. I am not sure that that is an issue your Honour would want to determine.
We say the costs orders could be left in place, and if the plaintiff wants to agitate that some different result should follow, then that can be done in another forum. Even if your Honour did consider it appropriate to set aside the costs orders, again, that could be dealt with in another forum and there would have to be arguments about what exercise of discretion is appropriate in circumstances where my client was successful on all the issues then run.
I should say – and this is my final point – that there was a reference today by my learned friend to my client being aware of Justice Perry’s
application all along, throughout the trial and prior to Justice Perry delivering judgment. Now, there is no evidence one way or the other about this, but, of course, we need to be careful when one is dealing with an organisation like the Department of Defence in circumstances where one part of the department is instructing in judicial review proceedings and another part of the department is dealing with applications for appointment to Deputy Judge Advocate General.
There is no evidence that those who were instructing in the judicial review proceedings were aware of Justice Perry’s application. Now, I do not think anything turns on that for the purposes of your Honour’s decision, but to the extent that submission has been put, I did not want it to go undisputed, that those who were instructed judicial review proceedings were aware of all the facts and simply sat silent without drawing it to her Honour’s attention.
Those are all the submissions I – sorry, bear with me. If you will bear with me, your Honour, one moment, while I confirm with my instructors whether there is anything else to add. Yes, your Honour is correct: the oaths of office of a Deputy Judge Advocate General and a Federal Court judge are almost identical, and they are found in – as your Honour knows – the Federal Court Act, the Schedule, and the Defence Force Discipline Act, Schedule 4.
HIS HONOUR: Thank you for that, Ms Heger.
MS HEGER: Unless your Honour has any further questions, those are my submissions.
HIS HONOUR: Thank you. Mr Keane.
MR KEANE: Yes, your Honour. In reply, to deal with the amending order dealt with by my learned friend, the submission in relation to the material provided on . . . . . by my learned friend. It was not that there is no evidence now that these documents exist, it was that, for the purposes of the plaintiff here, a hearsay representation for that existed.
To bring an application to reopen, and on fresh evidence, he requires that – the requirement is that the evidence be credible, highly‑probative and not previously obtainable by reasonable diligence. Now, it cannot be said for the plaintiff that he was in a position, upon receipt of that email, of satisfying the first two requirements. Further, the ‑ ‑ ‑
HIS HONOUR: But that assumes that reasonably would have been the end of the matter at that point. As I raised with Ms Heger, the simplest matter was to write to the other side and say: we understand that Justice Perry has applied for this position and was successful, what involvement did your client have with it? And you would have got an answer.
MR KEANE: I cannot say anything about that, your Honour. The reality is that we did not, and the reality is that, upon receipt of that email, what is to be noted is that there are no relevant dates provided. There is nothing in the email which inherently provides that this process occurred during the pendency of the judicial review application for the decision, because there is a gap in time between the decision being delivered and the appointment in February.
So, until the documents are provided – and that is not until afterwards – there is no basis for my client to apply to reopen. It may well be that the documents would have been provided if requested, but, with respect, it is speculation.
HIS HONOUR: It is not so much that you are getting documents, you would have got admissions from a model litigant.
MR KEANE: Potentially, your Honour, but it is speculation as to what we would have received had we written.
HIS HONOUR: All right.
MR KEANE: In relation to the reasonable apprehension bias – sorry, your Honour, and the point there arises that until the documents are provided, we do not have the knowledge now necessary to bring the submission that there is a reasonable apprehension of bias. It was said that we relied on QYFM to say that there can be no waiver. That, again, slightly misstates the reliance we wanted to place on QYFM.
I will come back to that, but in relation to waiver, the position that has been accepted in Vakauta v Kelly and . . . . . is that the waiver can only occur if a litigant is aware of the circumstances constituting the ground for the objection. The circumstances are not simply that Justice Perry applied for and was promoted to DJAG, it was the timing of it. In relation to the ‑ ‑ ‑
HIS HONOUR: Well, you did know when she was appointed, though.
MR KEANE: We knew when she was appointed?
HIS HONOUR: You just did not know the process behind that.
MR KEANE: And when she applied and when that process played out. Those are all essential ingredients to reading an application for . . . . . Even though it is an application of apprehended bias, it is still a serious application to bring and should not be brought separately. In relation to the relevant knowledge within the CDF of the application, there is no evidence as to who was aware of the matter within the team running the judicial review application, but if your Honour goes to page 1545 of the affidavit of Mr Fulton ‑ ‑ ‑
HIS HONOUR: Which affidavit is that?
MR KEANE: This is the – you will see it is the information pack for the selection advisory panel, and one of the panel members is ‑ ‑ ‑
HIS HONOUR: Could you just give me that page number again. Sorry, Mr Keane.
MR KEANE: Page 1545, your Honour.
HIS HONOUR: Page 1545. Just bear with me two seconds while I bring it up on my screen. We did not print all the exhibits off.
MR KEANE: No, and it is – I have them here, and I am very pleased I did not have bring them to Canberra.
HIS HONOUR: Just bear with me. Okay, page 1545, I have that.
MR KEANE: Yes, it is the information pack, and it contains the panel members. Relevantly, one of the panel members is the Chief Counsel for the Defence Force, Mr D’Amico, and it would be inferred that, as Chief Counsel for the Defence Force, he would have some knowledge of what matters were being conducted against the CDF. We cannot say what involvement he had, but you would expect them to have some knowledge of matters that are before the court.
In relation to reasonable apprehension bias, one thing to be remembered is that it is – the reasonable lay observer, while being aware of the general matters, is not expected to have a particular knowledge of the people involved, but in circumstances where there is a competitive tender – so, the process was not one where there was only Justice Perry in consideration, there were other people in consideration, there were five others that were all qualified candidates – it is not the suggestion, and the suggestion need not be made, that Justice Perry had a conscious decision to decide in favour of the CDF to ensure a lack of vindictive retribution, but more the insidious desire and unconscious desire to please the prospective decision‑maker by making soft decisions in their favour.
That is something that a reasonable and fair‑minded lay observer would accept, and certainly it is one where the lay observer is cognisant of human frailty; these things happen unconsciously, even in the most conscientious of people. In relation to the third point in relation to the matter being – I am trying to remember how my learned friend put it, because I note she disclaimed it being cured – curing the defect in the appeal, but effectively, I think the position is that sufficient natural is afforded by the appeal ‑ ‑ ‑
HIS HONOUR: I think the phrase was it was “an adequate remedy”.
MR KEANE: It was an adequate remedy. Firstly, we endorse the point your Honour said, that there is a distinction here in relation to reasonable apprehension of bias, and particularly in circumstances where materiality is not required. That is where – that was the point to which we directed to QYFM. Also, the relevance here is in circumstances where the breach of a entitlement to have an impartial decision‑maker, and one would be an impartial, but one that was relevantly not capable of being raised at the appeal, because the information necessary to bring was found at afterwards.
So, in the facts of this case, the appeal could not have given rise to the necessary circumstances, and I do not think it is any answers to say, speculatively, that we could written to the defendant and said we have this application for an FOI, provide us with all of the details and the information of when Justice Perry applied for the appointment as DJAG, and that would have been provided while the decision was reserved and that we should have taken steps, in the absence of the material, to either ask the Full Court to stay its decision or to apply to reopen until we obtained that material.
The fact of the case is that we did not obtain the material until after the decision was made. In those circumstances, nothing turns on the delay, and nothing turns on any questions of waiver, because the decision was already made. At that point, the appropriate course was to seek a prerogative writ. Very quickly, in relation to prohibition, it is right to say that prohibition could not have bene sought against BHP as much as anything because they are not amendable under section 75(v) of the Constitution.
We accept what my learned friend says in relation to the inherent unlikelihood of the CDF seeking to enforce the costs orders if this decision has been crossed by certiorari. We disagree that the costs orders can stand absent the decision, because the costs orders are made on the basis that costs followed the event. The event having been effectively excised, the costs order has nothing to hang on to say that costs follow the events so that they should also be quashed. Thank you, your Honour.
HIS HONOUR: Thank you. All right. I thank senior and junior counsel for their assistance in this matter. I will reserve this matter, if the Court Officer could now adjourn the Court.
AT 11.02 AM THE MATTER WAS ADJOURNED
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