Gott v Toogood
[2020] FCCA 3111
•16 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GOTT v TOOGOOD | [2020] FCCA 3111 |
| Catchwords: COURTS AND JUDGES – Judges – Disqualification for interest or bias – Particular grounds – apprehension of bias – actual bias. |
| Legislation: Bankruptcy Act 1966 (Cth), s..153B(1) Federal Circuit Court of Australia Act 1999 (Cth), ss.42, 44, 66, 67, 68, 69 |
| Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Mathews v MacDonnell [2011] FCA 825 |
| First Applicant: | JAMES PATRICK CECIL GOTT |
| Second Applicant: | CASSOWARY COAST REGIONAL COUNCIL |
| Third Applicant: | TRACEY TAYLOR |
| Fourth Applicant: | RICKY KENNETH TAYLOR |
| Fifth Applicant: | JOHN KREMASTOS |
| First Respondent: | STEVEN PAUL TOOGOOD |
| Second Respondent: | JULIANNE TOOGOOD |
| File Number: | BRG 337 of 2019 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 17 January 2020 |
| Date of Last Submission: | 17 January 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 16 November 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Raeburn |
| Solicitors for the Applicant: | Connolly Suthers |
| The Respondents appeared in person |
ORDERS
The application in a case filed on 18 December, 2019 is dismissed.
The question of costs is reserved for further argument.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 337 of 2019
| JAMES PATRICK CECIL GOTT |
First Applicant
| CASSOWARY COAST REGIONAL COUNCIL |
Second Applicant
| TRACEY TAYLOR |
Third Applicant
| RICKY KENNETH TAYLOR |
Fourth Applicant
| JOHN KREMASTOS |
Fifth Applicant
And
| STEVEN PAUL TOOGOOD |
First Respondent
| JULIANNE TOOGOOD |
Second Respondent
REASONS FOR JUDGMENT
At its core, this is an application by the first and second respondents to set aside a decision to make a sequestration order against their estates in bankruptcy because they were not present when that order was made.
There have, however, been considerable difficulties with that application because when the matter was first called before the Court the respondents did not appear to prosecute that application. That led to a subsequent application to set aside orders dismissing the second application. There is also, now, an application for me to disqualify myself from further hearing these proceedings. These reasons relate to the most recent application by Mr and Mrs Toogood – the application that I disqualify myself from further hearing these proceedings.
A chronology is essential. The petitioning creditors filed a creditor’s petition on 5 April, 2019. On 7 May, 2019 the respondents filed a notice stating grounds of opposition to the petition and a notice of appearance. The petition came before a registrar on 31 July, 2019 at which time the application was adjourned so that the respondents might file and serve further affidavit material upon which they intended to rely.
On 29 August, 2019 a registrar adjourned the application to 6 November, 2019 again with directions for the respondents to file and serve any further affidavits upon which they intended to rely by a particular date.
On 5 November, 2019 the respondents filed an application in a case seeking an order that the hearing of the petition be adjourned to a date to be fixed and not before the finalisation of certain criminal proceedings and other investigations said to be being undertaken by the Office of the Independent Assessor. Those investigations are into the alleged illegality of certain resolutions by the creditor Council. They also sought an adjournment of the petition pending the hearing of an appeal by the respondents against a judgment of 26 April, 2018 upon which the amount claimed in the creditor’s petition is based. The application also sought orders that certain of the petitioning creditors be available for cross examination “in person”. It sought orders as to disclosure.
On 6 November, 2019 the hearing of the petition was adjourned to a date to be fixed before a judge of the Federal Circuit Court of Australia. Although there was no order expressly referring the hearing of the respondents’ interlocutory application to a judge, the parties proceeded on the basis that that application was transferred along with the creditor’s petition more generally.
The creditor’s petition came before me for hearing on 21 November, 2019. On that day the petitioning creditors appeared by counsel. The respondents, the day before the hearing, sought leave to appear by telephone. The respondents request to appear by telephone did not indicate whether the petition creditors agreed to the request. At the commencement of the hearing at about 9:50am on 21 November, 2019 I enquired of the petitioning creditors’ counsel as to whether there was any objection to the respondents appearing by telephone. I was informed there was not.
Accordingly, I directed my associate to telephone the respondents. The number given by the respondents to the Court to contact them for the purposes of the telephone appearance, however, was disconnected. The record demonstrates that there was at least three occasions between 9:49am and 10:00am when the number provided by the respondents to the Court for the purposes of the telephone appearance was called. On each occasion the number was disconnected.
For reasons that I then delivered, I determined to proceed with the hearing of the creditor’s petition. After hearing submissions from counsel for the applicants and considering the written submissions filed by the applicants, I made a sequestration order against the estate of each of the respondents.
The next day, the respondents filed an application pursuant to rule 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) to have the orders made on 21 November, 2019 set aside. That application was listed for hearing on 2 December, 2019 at 9:30am.
The application was called on 2 December, 2019 at 9:42am. Counsel appeared for the petitioning creditors. There was no appearance by the respondents. There had been a request made by the respondents for leave to appear by telephone using the same number which had returned a disconnected signal on the previous hearing. The transcript records what then occurred:
HIS HONOUR: Didn’t we give leave to appear by telephone?
COURT OFFICER: We didn’t, your Honour.
HIS HONOUR: We didn’t?
COURT OFFICER: Because they didn’t provide us a number which wasn’t .....
HIS HONOUR: Right. Just try that number again. Just bear with us and we’ll see if we can get the – whoever they are on the telephone.
MR A.L. RAEBURN: Thank you, your Honour.
COURT OFFICER: Your Honour, when I rang through ..... there was a single tone and then there was silence.
HIS HONOUR: Can we do it in open court on the recording, do you think? Let’s have a crack at that. Hello? Hello? Thank you. Can you read into the record the number that you called?
COURT OFFICER: The number was 0429 930 980.
HIS HONOUR: Thank you. Yes.
MR RAEBURN: Your Honour, I understand there’s an application to set aside the sequestration order you made on the 21st.
HIS HONOUR: Yes.
MR RAEBURN: Your Honour, there’s no appearance. I seek the application be dismissed.
Thereafter I proceeded to give judgment on the application made by the respondents. I dismissed that application.
On 3 December, 2019 the respondents made a further application to set aside the orders made on 21 November, 2019 as well as the orders made on 2 December, 2019. Alternatively, they sought an order that pursuant to s.153B(1) of the Bankruptcy Act 1966 (Cth) the Court annul the bankruptcy and in the further alternative that the Court dismiss the creditors petition. In the event that the Court ordered the setting aside of the sequestration order but not the dismissal of the petition, or in the absence of setting aside the sequestration order did not order the annulment of the bankruptcy, the respondents sought substantially the same relief as they sought in their application in a case filed on 5 November, 2019.
That application came before me on 6 December, 2019. The respondents appeared personally by telephone. The petitioning creditors appeared by counsel. The male applicant, Mr Toogood, by and large conducted the matter on behalf of both respondents. I commenced to hear the respondents’ application. I invited them to identify the material upon which they relied and I invited the petitioning creditors’ counsel to do the same. During the course of counsel for the petitioning creditors identifying the material upon which his clients wished to rely, an issue arose about whether certain affidavits had been given to, or received by, the respondents. Counsel for the petitioning creditors asserted that the relevant documents had been sent by email to the respondents and both Mr and Mrs Toogood denied that they had been received. More than that, they denied that they had been sent to them at all. I asked to see a copy of the emails sending the documents to the respondents. That email was not immediately available and so the matter was stood from the list while a copy of that email was obtained. The application resumed about 90 minutes later. A copy of the relevant email was produced to me by counsel for the petitioning creditors. Counsel also confirmed that the email had been re-sent to the respondents whilst the application had been stood from the list.
The respondents informed me that they did not have the documents. The following exchange then occurred:
MR TOOGOOD: Your Honour, we do not have those.
MS TOOGOOD: We do not have .....
MR TOOGOOD: I
HIS HONOUR: No. There’s a difference between you did not get them and you do not have them.
MS TOOGOOD: ..... both, your Honour.
HIS HONOUR: The obligation on the other side is to send documents to you, to your address, for service, and an email address, if you’ve nominated one. Do you contend that they haven’t sent them to your email address?
MS TOOGOOD: We do, your Honour. We haven’t got them, and they haven’t sent them, and we have received other emails from them since 29 November. We emailed them on the 30th, asked for a copy of them. Then we emailed – we filed an affidavit on 3 December, which was acknowledged by them, and Mr Raeburn, I think, was even copied into that, putting in an affidavit that we hadn’t received them, so we were definitely – and we have separate email addresses, your Honour, so, well, I would very much
HIS HONOUR: Well, it has been sent to the separate email addresses. What is your email address, ma’am?
MS TOOGOOD: [email protected]
HIS HONOUR: Well, that’s the email address this purports to have been sent to.
MS TOOGOOD: ..... your Honour, I will put in an affidavit and swear anywhere that we did not receive those emails, and I was
HIS HONOUR: There seems to be all sorts of difficulties with contacting you.
MS TOOGOOD: Your Honour, that’s not our fault.
HIS HONOUR: You know, I had difficulty on the first occasion contacting you on the telephone number that you gave me. It was disconnected. The second time there were similar difficulties, and now there seems to be a difficulty just sending a simple email.
MS TOOGOOD: Your Honour, that is probably the intent of the other side in
HIS HONOUR: I see. All right.
Despite the assertion of counsel for the petitioning creditors that the documents in question had been sent again by email whilst the matter had been stood from the list, the respondents asserted that the email and relevant documents had not been received by them. The following exchange then occurred:
HIS HONOUR: I see. All right. Well, this is all pretty unsatisfactory, really
MS TOOGOOD: Well, it is for us, your Honour, because…
HIS HONOUR: and I’m coming to the conclusion that the only thing that I can do is to adjourn the application to some time when you can be here in Brisbane.
MS TOOGOOD: We would agree to that, your Honour. We would also request that the witnesses attend at the same time for cross-examination.
MR TOOGOOD: Which, then, your Honour, could be a final hearing, which will save the court all this time which is happening now.
HIS HONOUR: Well, that’s a …
MS TOOGOOD: Your Honour, I have eight – sorry – six children that I have given birth to myself. On my children’s lives, we have not received those emails.
HIS HONOUR: Yes. Well, Mr Raeburn, do you want to be heard on, well, how we’re going to deal with this?
MR RAEBURN: No, your Honour, other than to say that they’ve been sent, and we can’t proceed – I can – I accept what your Honour says, that the hearing can’t proceed. It’s unsatisfactory, but we’ve known about these proceedings since, I think, the court listed it on Wednesday.
After further discussion about whether the relevant emails had been sent and received and which party ought to be believed about that, I determined to fix the application then before me for hearing on 19 December, at 9:30am. I asked each of the parties if that suited them. Counsel for the applicants agreed that it was. The respondents did not dissent from that date. Rather, they suggested that the date could be used for a final hearing of the creditor’s petition and that the witnesses upon which the petitioning creditor relied in its petition should be available for cross examination on that day. I declined to order that the witnesses be available for cross examination because the hearing of the creditor’s petition was not before me but rather, it was an application by the respondents for various relief including, the setting aside of the sequestration order.
After some further discussion about whether cross examination of witnesses ought to be permitted, Mrs Toogood asked if a date could be set “past the 19th, please?” as she said she had a matter in Melbourne. I declined her request and confirmed that the matter would be heard on 19 December, 2019. The following exchange then occurred:
HIS HONOUR: Not for me, ma’am. I’ve – each time you’ve emailed my associates or the registry asking for urgent hearing dates, I have accommodated you. I’m not going to extend the accommodation any further. It is 19 December at half past 9. Is that
MR TOOGOOD: And do – the parties aren’t going to be ordered to attend for cross-examination?
HIS HONOUR: Sir, did you hear me say no before?
MR TOOGOOD: I just – your Honour, it’s – I mean, the amount of time the court is spending on this and the amount of time we are having to spend on this – this could be expedited by having the parties actually attend for cross-examination. The parties have been on notice since July this year, your Honour, that we required them for cross-examination. They’ve been refused by Mr Humphries to attend for cross-examination. They could have attended for cross-examination. They haven’t, and now we’ve got a debacle this morning, where there’s an affidavit and an outline which we did not receive, and they’ve been on notice for the last week and a half that we did not receive that. They have refused to send it to us.
HIS HONOUR: I see.
MS TOOGOOD: Your Honour, this judgment arose from conduct like that, where they said there were documents. There weren’t documents. This is not unusual for the other side, and we hope to demonstrate that to the court, despite them being officers of the court. This is how this judgment arose.
HIS HONOUR: Right. Do you have access to the Commonwealth Courts Portal?
MS TOOGOOD: Online, your Honour? Yes.
HIS HONOUR: Right. Are you not able to access the relevant documents there?
MR TOOGOOD: No, your Honour.
MS TOOGOOD: You can’t, your Honour.
MR TOOGOOD: You can’t get documents on there. I rang the court.
HIS HONOUR: I see. Thank you.
MR TOOGOOD: The only way to get those documents was if we pay $50, your Honour.
HIS HONOUR: Right. Well, 19 December at half past 9. The costs of today will be reserved.
MR RAEBURN: Thank you, your Honour.
MS TOOGOOD: Thank you, your Honour.
HIS HONOUR: Thank you.
MR RAEBURN: Your Honour, just to clarify, it is only the application to set aside that has been listed on that date.
HIS HONOUR: Yes.
On 19 December, 2019 the application came before me in Brisbane. The petitioning creditors appeared by counsel. There was no appearance by the respondents. Counsel for the petitioning creditors brought to my attention that on 18 December, 2019 the respondents filed an application for me to disqualify myself from further hearing the application then before the Court.
I then resolved to move the hearing of the application to Townsville so that there was a greater possibility that the respondents would appear personally at court when the application was heard. After discussing the matter with counsel for the petitioning creditors, 17 January, 2020 was fixed for hearing of the application in Townsville, not before 11:30am. It was the hearing of the interlocutory application then before me that was listed at that date and time in Townsville.
The application was called on for hearing on 17 January, 2020 at just after midday in Townsville. Counsel appeared for the petitioning creditors and each respondent appeared in person. I conducted the hearing by video link from Brisbane.
The respondents brought to my attention their application for me to disqualify myself from hearing their application any further. Counsel for the petitioning creditors pointed out that the disqualification application was not listed for hearing on that day. Nonetheless, I indicated that I would hear it that day.
The disqualification application
The respondents filed an application in a case on 18 December, 2019 seeking an order that I “recuse” myself from any further involvement in the proceedings. The application was said to be supported by an affidavit affirmed by the respondent Stephen Toogood dated 18 December, 2019. The respondents also filed an outline of argument in support of that application in which they identified the following additional material upon which they intended to rely:
a)affidavit of Stephen Paul Toogood 13 December 2019;
b)Transcript 21 November, 2019;
c)Transcript 19 December, 2019.
The respondents submit that there is not only an apprehension of bias but actual bias in the judgments already made, such that a reasonable person would conclude that I have not acted impartially. In particular, the respondents point to the following matters:
a)I refused to apply procedural fairness to any proceeding;
b)I made orders on 21 November, 2019 for a sequestration order against the respondents without allowing them the opportunity to be heard;
c)I refused to consider the extensive material the respondents had filed in this proceeding;
d)I arbitrarily refused to allow them to appear by telephone;
e)I did not state “to the court or the other party that the respondents had been refused permission to appear by telephone on 21 November, 2019”;
f)I attempted to call the respondents in open court after they had been “specifically refused” to appear by telephone;
g)I preferred the submissions of the petitioning creditors over their filed material;
h)I accepted and did not question the petitioning creditors as to “material facts”;
i)the orders made on 21 November, 2019 in open court were not the orders ultimately issued and it was only after the respondents made the application that the written orders reflected that the respondent may apply pursuant to r16.05(2)(a) to have the orders set aside;
j)the refusal to allow the respondents leave to appear by telephone on 2 December, 2019 for an interlocutory hearing;
k)the refusal to order the petitioning creditors to appear for cross examination;
l)I arbitrarily allowed the respondents to appear by telephone for the same proceeding on 6 December, 2019;
m)I “Blamed us for the solicitor’s failure to serve documents on us”;
n)I “Refused to allow us to make submissions on 6 December 2019 in relation to the telephone appearances”;
o)I “arbitrarily refused again on 19 December, 2019 to allow us to appear by telephone”;
p)I “Blamed us for the mishaps in telephone appearances”;
q)I “Discriminated against us for our financial status”;
r)I listed a matter as a directions hearing on the court file and in the orders made and then allowed the other party to state to the court that it was not a directions hearing;
s)I “made an order directly affecting our future without considering the fairness or unfairness of making that order”;
t)I “spoke harshly to us on 6 December 2019 when requesting a date that Judge Jarrett had already proposed and were made to feel that we had no right to ask for that date (23 December 2019)”;
u)I “Failed to apply natural justice to any proceeding”;
v)I “arbitrarily and unfairly denied our right to be heard in the proceeding”;
w)I “provided a date that was tailored for the Barrister for the applicant creditors”;
x)I “Discriminated against us on the basis we are self-represented”.
The respondents submit that this proceeding has been conducted in the manner “described in Webb v The Queen 1994 CLR 41 where Deane J described conduct engaged in by the judge in the course of the proceedings giving rise to such an apprehension of bias”.
“There is a variety of ways in which the impartiality of a court may be or may appear to be compromised including….:
Interest – where the judge has an interest in the proceedings, whether pecuniary or otherwise giving rise to a reasonable apprehension of prejudice, partiality or prejudgment.
Conduct – where the judge has engaged in conduct in the course of, or outside, the proceedings, giving rise to such an apprehension of bias.”
The relevant legal principles are stated in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 where the High Court observed that:
“…a judge is disqualified if a fair minded lay observer might reasonably apprehend that that judge might not bring an impartial mind to the resolution of the question the judge is required to decide.”
The party seeking the disqualification of the judicial officer seized of a particular case must establish:
a)a matter that it is said might lead the judge to not bring an impartial mind to the resolution of the issue; and
b)a logical connection between the identified matter and the possibility that the judge might depart from impartial decision-making.
The hypothetical observer is taken to be a rational person who is neither complacent nor unduly sensitive or suspicious and to be someone who is aware of the oath or affirmation taken by judges and their judicial obligations more generally: Royal Guardian Mortgage Management Pty Ltd v Nguyen & Anor (2016) 332 ALR 128.
Consideration
The legislated position is that parties to proceedings will appear either by a legal practitioner or in person whenever an application is before the Court: s.44 Federal Circuit Court of Australia Act1999 (Cth). That generally requires a party or their lawyer to be present at court when a proceedings is being dealt with by the Court. That general assumption is underscored by the provisions of Division 5 of Part 6 of the Federal Circuit Court Act which provides that the Court may permit testimony to be given by video or audio link (s.66), may permit a person to appear by video or audio link (s.67) and may permit parties to make submissions by video or audio link (s.68). Section 69 prescribes conditions for the exercise of the power to permit testimony, appearance or submission by video or audio links. Appearance by telephone is the exception rather than the rule: Mathews v MacDonnell [2011] FCA 825 at [4].
The Court has established measures to enable parties to seek the Court’s leave to appear by telephone to which the respondents referred in the course of their submissions. Those measures require a written document to be forwarded to the Court no later than five days before the proposed hearing. Whether or not the other parties to the proceedings consent to the application is relevant to a consideration of whether or not to grant leave.
The respondents made their application for leave to appear by telephone at the hearing of 21 November, 2019 by “uploading” a request for that leave at about 4:00pm on 20 November, 2019. The respondents sent an email to the Registrar at that time bringing the application for leave to appear by telephone to the Registrar’s attention. The evidence shows that the Registrar replied the following day, 21 November, 2019 at 9:27am in the following terms:
Good Afternoon
Chambers has advised that without the consent of all parties your request for leave to appear by telephone will not be granted.
Considering the lateness of your request Chambers would typically not give leave for a request to appear by telephone.
Kind regards
The respondents request to appear by telephone was, in truth, an application by them to the Court pursuant to s.68 of the Federal Circuit Court Act. It was an application for an indulgence and an application, about which, the petitioning creditors were entitled to be heard.
Applications for leave to appear by telephone are routinely made in this court. Consistent with the obligation upon this Court to proceed without undue formality (s.42 of the Federal Circuit Court Act) applications are regularly made simply in correspondence from an applicant for leave to appear by telephone. But whether or not the other parties to the proceedings consent to the electronic appearance is a matter which is relevant to:
a)determining whether there needs to be a more formal hearing in respect of the application for leave to appear electronically; and
b)determining whether the application ought be granted at all.
The respondents seem to have proceeded on the basis that their application would be granted without question. They seemed not to have countenanced the proposition that leave might not be granted. The proposition that parties can make such a late request and expect it to be answered in a timely enough way for the respondents to then make arrangements to appear in person at the hearing is hard to accept. That is especially so where the workload upon the associates and deputy associates to judges of this court is as heavy as it is. It is not the obligation of the Court, or the staff of judges’ Chambers, to make enquiries about the consent of the other parties to particular proceedings where one of the parties to those proceedings seeks leave to appear by telephone. To suggest otherwise would be to impose an even greater burden upon Chambers’ staff, whose workload is already intolerable.
Moreover, making such a late request tends to place the Court in a very difficult position in the sense that if the application is refused, it might be said that in so refusing the application, the Court has acted capriciously or arbitrarily. The petitioning creditors were entitled to be heard on the application for leave to appear by telephone. As it turned out, the applicants had no objection to that course, but there was nothing from the respondents to suggest that was so. That attitude was only made known to the Court when the matter was called. Upon being advised that there was no objection the Court attempted to raise the respondents on the telephone but was unable to do so.
The respondents were plainly aware that the matter was fixed for hearing on 21 November, 2019. In my view, there was no impediment to proceeding in the absence of the respondents in those circumstances. That was especially so given that the respondents had an entitlement to apply to have the orders set aside because they were made in their absence: FCCR 16.05(2)(a). Indeed, the order made on 21 November, 2019 and entered on that date carried a notation to that effect. Whilst that notation was not part of the operative order, it was designed to put the respondents on notice of the ability to make such an application. Notations to that effect are regularly placed upon orders made in the absence of a party in this Court. Rather than denying the respondents procedural fairness it achieved the opposite. There is no obligation upon the Court to point such things out to parties in proceedings before it.
The respondents complain that the Court did not take into account the material that they had filed prior to 21 November, 2019. However, in the absence of an appearance on 21 November, 2019 there was no obligation upon the Court to have any regard to that material. The petitioning creditors could quite properly have objected to the Court doing so. The system is adversarial, not inquisitorial.
An application to set aside the sequestration order was made on 22 November, 2019 and it was listed for hearing on 2 December, 2019. The respondents sought leave to appear by telephone on 2 December. The application was made some days before the hearing date. On 28 November, 2019 the application was refused. There seemed to be little point granting leave in respect of a contact number that was returning a disconnected message on 21 November, 2019.
The respondents did not accept that refusal and on 29 November, 2019 they forwarded further correspondence again seeking leave to appear by telephone. The reasons put forward in support of that application were:
1. We are located 1,571 kilometres from Brisbane.
2. The decision to file this proceeding in Brisbane was not our choice.
3. The previous refusal for leave to appear by phone was because there was not consent of all parties.
4. We have been granted leave to appear by phone every other occasion that we have requested it.
5. We have never experienced difficulty or been disadvantaged in appearing by phone.
6. The cost of the airfares and associated costs is prohibitive and we do not have the funds.
7. We would lose an entire days income in having to travel to Brisbane.
8. We have enquired about a town agent who charges $460 per hour plus GST (Boss Lawyers) which is a cost we cannot afford. {Research plus appearance fees).
9. We were informed that the issue to be decided is the cross examination of alleged creditors.
10. This would then require a separate hearing in order to cross examine alleged creditors which is a further expense.
11. We have filed an Appeal in matter QUD202/19 of Justice Greenwoods decision. Lodgement ID is 804613.
12. This matter (QUD202/19) was still open at the time of the hearing on 21 November 2019 of BRG337 which was not disclosed by the applicant creditors.
13. We refute that the entirety of the sum of the matter is owing.
14. We state that the creditors have filed false affidavits and are not paid any money nor are they owed any money.
15. The legality of the vote for the Council Resolution (7 December 2017) entitling the Council to charge the legal fees including of the judgment from which this creditors petition is based has been under investigation by the Crime and Corruption Commission who referred the matter to the Office of the Independent Assessor which escalated the matter to their legal team to consider prosecution including of alleged Creditors John Kremastos (Mayor) and Ricky Kenneth Taylor (Councillor who also filed affidavit on behalf of his wife, Tracey another alleged Creditor) and other Councillors. The resolution will be found to be ultra vires, and Council and the parties (alleged creditors) will be prohibited from enforcing the costs.
16. The legality of the vote for the Council Resolution (6 December 2018) to confirm and endorse the Vexatious Proceeding Application against us which was used to stop our appeal against the judgment and costs of which this creditors petition is based is at a similar stage of investigation/prosecution - the Resolution to bring the Application will be found to be ultra vires and the ongoing use of the VPA by the Council and the defamation Plaintiff in various proceedings can and will be appealed.
17. If the Councillor Conduct Tribunal substantiates the complaints in Paras 15 and 16, the costs the subject of this proceeding are unenforceable and this will create the basis for appeal against any prior orders in the proceedings including the validity of the bankruptcy notice.
18. The alleged Creditors have more knowledge than we do of the information in Paras 15 and 16 and have failed to provide that information to the court. This is one of the reasons they are required for cross examination as to the validity of the 'debt' and the legality of the enforcement.
19. This afternoon I will be seeking a further update from the Office of the Independent Assessor as to the prosecution of the 2 matters in Paras 13 and 14 of which I will file by affidavit as soon as that information is to hand.
At the conclusion of the letter appears the number 0429 930 380 – the number called on 21 November, 2019 but which was disconnected. A further email response from Chambers sent on 29 November, 2019 at 5:50pm pointed out that the number provided by the respondents was the same as the previous number that was apparently disconnected.
There was no appearance by the respondents on 2 December, 2019. The Court attempted to call the respondents on the number provided, but there was no response. The transcript records what happened. In light of the respondents’ failure to appear to prosecute their application I dismissed it. Having sought leave to appear by telephone and that being refused, it was bold of the respondents not to appear at the hearing of their application. Notwithstanding their failure to appear in person, there was an attempt made to contact the respondents in the event that they thought leave had been granted. It failed. In my view there was no failure to accord the respondents procedural fairness. Again, the order dismissing the application carried the notation that the orders were made in the absence of the respondents (called the applicant in the notation) and that the orders could be set aside pursuant to FCCR 16.05(2)(a).
The respondents filed a further application to set aside the dismissal order on 3 December, 2019. It was listed on 6 December, 2019. The respondents were given leave to appear on the telephone. On that occasion, the exchanges I have set out above occurred.
I do not accept that anything that has occurred in relation to the listing and hearing of the various applications with which I have dealt with so far demonstrates an apprehension of bias as the respondents argue. Rather, the matters set out above demonstrate that procedural fairness has been accorded to the respondents. Despite leave to appear on the telephone not being granted on 21 November and 2 December, 2019 the Court attempted to contact the respondents on the contact number provided by them. In my view no inference of bias arises from the fact that the Court proceeded in the absence of the respondents on 21 November and 2 December, 2019.
As set out in the extracts from 6 December, 2019 it became apparent that a hearing where the respondents appeared personally at Court was necessary. Mrs Toogood agreed with that proposition. Mr Toogood did not to move from the proposition when Mrs Toogood said that “we would agree with that”. And so the Court set about isolating a date for the matter to be heard in Brisbane. Although Mrs Toogood suggested that there was another matter she needed to attend to in Melbourne on 19 December, 2019 it was not suggested that the matter in Melbourne prevented attendance in Brisbane for a hearing on 19 December. Whilst it was true that 23 December was initially offered as well, the 19th was more suitable from the Court’s point of view and ultimately, it was insisted upon.
On 19 December, the respondents did not appear. Rather than again dismissing the application for want of appearance by the respondents, the transcript shows that the Court made arrangements for the further hearing of the application in Townsville where there would be a better chance of the respondents appearing in the proceedings. The date that was selected for that hearing in Townsville was selected in consultation with counsel for the petitioning creditor because they were before the Court. Organising a further hearing date to meet the convenience of the parties then before the Court is unremarkable.
As it turned out, that course did in fact result in the respondents appearing before the Court in Townsville. Rather than a denial of procedural fairness, the course adopted enhanced the respondents’ ability to appear before the Court and present their case.
As to the refusal to order the petitioning creditors to appear for cross examination, what was before me was, amongst other things, an application to set aside the orders of 21 November, 2019. Cross examination of the petitioning creditors for the purpose of that application was unnecessary. Whilst the respondents seemed to contend that there should be a “final hearing” of the creditors petition, whether there would be a final hearing of the creditors petition or not is dependent upon whether the orders of 21 November, 2019 was set aside. To order the appearance of the petitioning creditors for cross examination (leaving aside whether any particular petitioning creditor was to give evidence in chief in support of the petition) was, and remains, premature.
The respondents argue that I “arbitrarily allowed the respondents to appear by telephone for the same proceeding on 6 December, 2019”. But there was nothing arbitrary about it. The respondents had secured the petitioning creditors consent to them appearing by telephone and notified the Court of that consent appropriately. Further, they had given to the Court a contact number which was different to that number upon which the Court had on two occasions tried, but failed, to contact them.
The respondents argue that I “arbitrarily refused again on 19 December, 2019 to allow us to appear by telephone”. But as the transcript demonstrates, the respondents agreed that the matter should be dealt with in circumstances where they attended personally before the Court and 19 December, 2019 was fixed for that purpose. The clear understanding on 6 December, was that the matter was being adjourned so that the parties could all be personally present before the Court. In those circumstances, it is unsurprising that any request to appear by telephone was refused.
Moreover, in my view, it is an incorrect characterisation to suggest that the respondents were “blamed” for the failure, as they asserted, of the solicitors for the petitioning creditors to send to them the documents upon which they wish to rely on 6 December. I made no findings or determinations about what occurred other than to determine that it was necessary to have all parties present in the same place so that if necessary, documents could be exchanged in person and similar issues did not arise again.
Conclusion – disqualification application
In my view, a fair minded lay observer would not reasonably apprehend that I might not bring an impartial mind to the resolution of the question the judge is required to decide in the application presently before the Court. Indeed, in my view, a fair minded lay observer would conclude that in this particular case, the Court has observed the necessary requirements of procedural fairness towards the respondents and has, to the best of its ability, accommodated the respondents bearing in mind that they represent themselves and are not lawyers.
No logical connection between the matters identified by the respondents and the possibility that I might depart from impartial decision-making appears from the respondents arguments. Despite leave to appear by telephone being refused for the appearances of 21 November and 2 December, 2019, the Court attempted to telephone the respondents on the telephone number they provided. On 6 December, given the difficulties that arose on that occasion, all parties agreed that an in person hearing was appropriate and a date was fixed for that hearing. Despite their agreement to an in person hearing, the respondents failed to attend. Rather than dismiss the application at that point, the Court made arrangements to have the application heard in a different registry so as to accommodate the respondents and enhance the prospect that they might appear before the Court. That attempt to have the respondents before the Court was successful and the hearing was able to proceed.
The application that I disqualify myself from further involvement in the proceeding is dismissed. I will reserve the question of costs for further argument.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 16 November, 2020.
Associate:
Date: 16 November 2020
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