Hanna v Flinders University - [2025] SASC 81

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Civil)
HANNA v FLINDERS UNIVERSITY
[2025] SASC 81
Judgment of the Honourable Justice B Doyle
29 May 2025
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FOR BIAS IN JUDICIAL PROCEEDINGS
COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS
The appellant brought a claim in the Magistrates Court seeking relief of various kinds against the respondent. In March 2024, the appellant requested that the magistrate with the conduct of the matter recuse herself. In reasons published on 22 April 2024, the magistrate declined to accede to the appellant’s request. The appellant appealed against that decision to this Court. The appeal was dismissed.
In August 2024, the appellant made a further request that the magistrate recuse herself. For reasons dated 11 December 2024, the magistrate again declined to recuse herself. The appellant now appeals against that decision.
The appellant relied on numerous grounds of appeal which can be grouped into two categories:
1.complaints about the magistrate’s conduct in the course of hearings between late 2023 and mid-2024;
2.complaints concerning the second recusal application including the magistrate’s characterisation of her past association with the law firm representing the respondent in the proceeding.

Held, refusing an extension of time to institute the appeal and refusing leave to appeal:
1.it is not necessary to resolve whether it remains open to the appellant to raise complaints arising from the earlier hearings because it is not reasonably arguable that they disclose any matter which a fair-minded lay observer might reasonably apprehend might lead the magistrate to decide any procedural or substantive issue other than by reference to its merits;
2.neither the magistrate’s characterisation of her past association with the respondent’s solicitors nor her conduct of the second recusal application gives rise to a reasonably arguable basis upon which actual or apprehended bias might require recusal.

Magistrates Court Act 1991 (SA) ss 8(1), 19(2), referred to.
Hanna v Flinders University [2025] SASC 6, applied.
Hanna v Flinders University [2024] SASCA 127; Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; Stone v Moore (2015) 122 SASR 54, discussed.

HANNA v FLINDERS UNIVERSITY
[2025] SASC 81
Magistrates Appeal—Civil

B DOYLE J: The appellant, Dr Hanna, is the applicant in a proceeding against Flinders University in the Magistrates Court. In March 2024, Dr Hanna requested that the magistrate with the conduct of the proceeding recuse herself. On 22 April 2024, the magistrate gave reasons for declining to do so. Dr Hanna appealed against that decision to this Court. The appeal was heard in August 2024 and ultimately dismissed on 29 January 2025.[1] Before the dismissal of the appeal, but after it had been argued, Dr Hanna made a further request that the magistrate recuse herself.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] SASC 81
Decision Date: 29 May 2025

CaseChat Overview and Summary

In Hanna v Flinders University, the appellant, Dr Hanna, appealed against the decision of the Magistrates Court of South Australia to refuse her application for the recusal of the magistrate. The case concerns a dispute regarding Dr Hanna’s entitlement to a scholarship while completing a doctorate of philosophy at Flinders University. The appellant alleged bias on the part of the magistrate, claiming that the magistrate was consistently ruling in favor of the respondent, indicating a pattern of favoritism. She also alleged that the magistrate had a prior professional relationship with counsel for the respondent, which she claimed was not disclosed.

The central legal issues before the court were whether the magistrate's conduct gave rise to a reasonable apprehension of bias and whether the court should admit new evidence that was submitted after the judgment was reserved. The court needed to determine if the magistrate’s actions, including the handling of interlocutory applications and rulings, could be perceived as biased. Additionally, the court had to assess the relevance and impact of the new evidence that Dr Hanna sought to introduce after the reservation of judgment.

The court found that the magistrate's conduct did not give rise to a reasonable apprehension of bias. It concluded that the magistrate's decisions were based on the merits of the case, and the appellant's disagreement with those decisions did not constitute a basis for recusal. The court also ruled that the new evidence submitted by Dr Hanna, which concerned the magistrate's past professional relationship with counsel for the respondent, was irrelevant and would not affect the disposition of the appeal. Consequently, the court refused to admit this evidence.

The appeal was dismissed, and leave to appeal was not granted. The court found that it was not reasonably arguable that the appeal would succeed and that granting leave would be futile.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, if and to the extent that the appeal is competent, it requires an extension of time and leave. I would not grant leave to appeal, for reasons including that it is not reasonably arguable that the appeal would succeed. It would be futile to grant the extension. Background Much of the relevant background is set out in the reasons of Hughes J for dismissing the earlier appeal to this Court.[2] By the proceeding she commenced in late 2021, Dr Hanna seeks a monetary award and other relief against the University. The dispute concerns Dr Hanna’s entitlement to a scholarship whilst completing a doctorate of philosophy.[2] Hanna v Flinders University [2025] SASC 6 at [3]-[26]. There have been various interlocutory applications made in the Magistrates Court. A question about discovery was the subject of an appeal to this Court,[3] and a subsequent application for leave to appeal to the Court of Appeal.[4] [3] CIV-24-002046 (Kourakis CJ).[4] Hanna v Flinders University [2024] SASCA 127 (Livesey P and Bleby JA). The first recusal application, made in March 2024, was advanced on the basis that Dr Hanna was in the process of appealing an earlier decision of the magistrate. It was also contended that in various ways the magistrate had mishandled or erred in dealing with discovery applications made by Dr Hanna. In the course of declining the application for recusal, the magistrate observed that the fact that Dr Hanna disagreed with decisions did not give rise to a basis for recusal and that, in the ordinary course, that would remain the case even if an appeal court held that she had erred in respect of an interlocutory decision. In relation to alleged procedural deficiencies, including a contention that Dr Hanna had not been given a sufficient opportunity to make submissions, the magistrate made reference to the lengthy written submissions and the time afforded by her to Dr Hanna for oral submissions. The magistrate did not accept that she had engaged in conduct that might found a reasonable apprehension of bias. The magistrate also rejected a contention that she should recuse herself because the claim was too complex or technical for her to understand. On appeal to this Court, the grounds upon which complaint was made expanded upon the matters raised before the magistrate. Among other things they extended to complaints about the magistrate’s response to Dr Hanna’s request to transfer the proceedings, complaints about the magistrate’s response to the appellant’s request for ‘specific performance’, complaints that the magistrate did not treat her application for specific performance as urgent and complaints that the magistrate was consistently ruling in favour of the respondent. This was said to demonstrate a pattern of favouritism suggesting a protective stance towards the respondent.[5][5] Hanna v Flinders University [2025] SASC 6 at [23] – [24] (Hughes J). A further contention advanced by Dr Hanna before this Court was the magistrate’s asserted connection with the law firm acting for the respondent in the proceeding. This was a matter about which Dr Hanna only became aware subsequent to the bringing of the appeal, and after the first recusal application was refused by the magistrate.[6] In the intervening period, Dr Hanna had undertaken some research on the internet and learned that the magistrate had worked as a solicitor at the firm of solicitors representing the respondent, HWL Ebsworth. She sought to tender material from ‘LinkedIn’ which indicated that the magistrate worked at that firm between January 2015 and September 2016.[6] Hanna v Flinders University [2025] SASC 6 at [25] (Hughes J).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I conclude that the conduct of the magistrate in relation to the second recusal application did not give rise to a reasonable apprehension of bias.Interlocutory application after reservation of judgment After judgment was reserved in this matter, the appellant filed an interlocutory application by which she sought to rely upon additional evidence which was characterised as evidence of repeated misconduct between the magistrate, HWL Ebsworth, and counsel for Flinders University in this matter. The application was supported by an affidavit sworn by Dr Hanna. In her affidavit, Dr Hanna recounts an exchange in the course of the appeal hearing before me and states that this prompted her to do ‘further research’. Dr Hanna explains that she undertook a Google search using the magistrate’s maiden name and the name of counsel in this matter and that it produced two results. These results suggest that in two (somewhat related) matters in 2007 and 2010, counsel was briefed by the magistrate in her then capacity as an instructing solicitor acting for Dr Colin Manock, a forensic pathologist. The first of those matters appears to have commenced in 2005. Dr Hanna states in her affidavit that this confirms that the magistrate was supervised or mentored by counsel for a long time, and she attaches significance to the non-disclosure of this circumstance. That evidence, or submission, misunderstands the role of counsel in litigation. Whilst it is not uncommon for solicitors to learn from barristers retained to act for their clients, it is also not uncommon for barristers to learn from working with solicitors. In either case, this is simply a happy by-product of the main focus of the barrister’s engagement, which is to represent a client in a litigious controversy. A barrister would not ordinarily understand their role to be to supervise or mentor a particular instructing solicitor working at the firm by which he or she is briefed. Even if there were a mentoring relationship, it is far from obvious that, fifteen or so years after the event, this is a matter that ought to be disclosed, much less result in disqualification. But since all that the evidence reveals is that the magistrate’s firm briefed counsel presently retained for the respondent, that is not a matter the non-disclosure of which should cause Dr Hanna any undue concern. More relevantly, it is not a matter which a fair-minded lay observer might reasonably conclude might lead the magistrate to decide the case other than on its merits. Dr Hanna was given an opportunity on 27 May 2025 to make further submissions on this particular topic. They did not materially add to the affidavit she filed in support of the application. I conclude that if I were to admit the evidence on the appeal, it would not affect the disposition of the appeal. In all the circumstances, that is sufficient for me to conclude that it is not in the interests of justice to receive the evidence.[20] Had I admitted evidence of the non-contentious fact that the respondent’s counsel acted about 15 years ago in a matter or matters on instructions from a firm at which the magistrate worked, I would still have reached the same decision in this appeal.[20] See r 217.10 of the Uniform Civil Rules 2020 (SA), Wang v Gelnar [2023] SASC 43 at [15] (Stanley J).

Ratio Decidendi

Legal Principle Established

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