Hanna v Flinders University

[2025] SASC 6

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeal: Civil)

HANNA v FLINDERS UNIVERSITY

[2025] SASC 6

Judgment of the Honourable Justice Hughes 

29 January 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 sought to appeal a decision by a Magistrate to not recuse herself.

The application for the Magistrate to recuse herself was brought in the context of proceedings involving the original claim brought by the appellant in the Magistrates Court which sought payment from Flinders University and a variety of other orders. Amongst other interlocutory applications, the appellant sought discovery from the respondent. The Magistrate did not grant access to all of the documents that were requested, and the appellant appealed this decision. The appellant was partially successful on appeal of the discovery orders.

After the refusal of the discovery application by the Magistrate, the appellant brought the application for the Magistrate to recuse herself. The Magistrate declined to do so and delivered ex tempore reasons.

The appellant submitted fifteen grounds of appeal and raised additional grounds during the appeal, summarised as:

1.      Complaints about the Magistrate’s response to the appellant’s discovery application;

2.      Complaints about the Magistrate’s response to the appellant’s request for transfer of the proceedings;

3.      Complaints about the Magistrate’s response to the appellant’s request for “specific performance”;

4.      Allegations regarding the Magistrate’s “consistent” rulings in favour of the respondent, her failure to understand the proceedings, and treatment of the recusal application.

5.      The Magistrate’s dismissive attitude to the appellant; and

6.      The Magistrate’s association with the firm of lawyers representing the respondent.

Held, refusing leave to appeal:

1.      The appeal, against a bare recusal, is not amenable to appeal.

2.      If the appeal is competent, leave is refused because the appellant did not demonstrate that:

a. there was a reasonable prospect of establishing error in the Magistrate’s reasons for declining to recuse herself;

b. the Magistrate’s conduct during the interlocutory stages of the action gave rise to a reasonable apprehension of bias, or supported a conclusion of actual bias;

c. there was an arguable case that the Magistrate should have disqualified herself in respect of the Magistrate’s past employment with the respondent’s solicitors. Mere association through former employment is unlikely, without more, to give rise to a reasonable apprehension of bias; or

d. the Magistrate had had dealings, outside of the court, with the respondent’s solicitors with respect to the proceedings.

Magistrates Court Act 1991 (SA) ss 3, 40, 42; District Court Act 1991 (SA) s 43, referred to.

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65; Flowers v Hicks [2024] SASCA 126, applied.

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Hanna v Flinders University [2024] SASCA 127; Harradine v Chief Executive of the Department for Education [2021] SASCA 139; Anderson v National Australia Bank [2007] VSCA 172; Siewertsz Van Reesema v Police [2009] SASC 8; Southern Equities Corporation Ltd (In liq) v Bond (2000) 78 SASR 339; Stone v Moore (2015) 122 SASR 54; Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; Barakat v Goritsas [2012] NSWCA 8; Mbuzi v Wordsworth [2024] FCA 977; Re Nash [No 2] (2017) 263 CLR 443; CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76, considered.

HANNA v FLINDERS UNIVERSITY
[2025] SASC 6

Magistrates Appeal: Civil

1. HUGHES J: The appellant has appealed a decision by a Magistrate declining to recuse herself. 

2. The following summarises the disposition of this appeal.

   1.The appeal is not competent because leave is not amenable from the Magistrate’s decision not to recuse herself.

   2.If the appeal is competent, leave is refused because the appellant did not demonstrate that:

   a.she had a reasonable prospect of establishing error in the Magistrate’s reasons for declining to recuse herself;

   b.the Magistrate’s conduct during the interlocutory stages of the action and in particular on 5 April 2024 gave rise to a reasonable apprehension of bias, or supported a conclusion of actual bias; or

   c.she had an arguable case that the Magistrate should have disqualified herself in respect of the Magistrate’s relationship with the respondent’s solicitors, or did not demonstrate that the Magistrate had dealings with the respondent’s solicitors with respect to the proceedings.

   Background

3. The appellant filed a claim (the Claim) in the Magistrates Court on 2 November 2021 (CIV-21-012199). The Claim sought payment from Flinders University in the sum of $95,336 and a variety of other orders. It is not easy to succinctly describe the basis of the Claim because it is not expressed by reference to the causes of action or remedies that the Court immediately recognises.

4. However, for the purposes of this appeal, which concerns the very narrow issue of a decision on a recusal application, it is sufficient to adopt (but only for this purpose) the respondent’s characterisation of the Claim as being for the payment to the appellant of an amount equivalent to a scholarship for three past years, and a declaration that the appellant has an entitlement to the scholarship until such time as the appellant completes her doctorate of philosophy.[1] The University denies that it is liable to make the payment or to provide such a commitment.

   [1]     The appellant had, at the time of the appeal, an active application to amend her claim in ways that are not relevant to the disposition of this appeal.

5. The appellant is self-represented but assisted by her brother. An interpreter has been made available to the appellant for the proceedings at her request but was minimally relied upon by the appellant.

6. The Claim has been the subject of interlocutory applications in the Magistrates Court, leading to various procedural orders being made by a Magistrate. In one such application,[2] the appellant sought discovery from the respondent, but by order made on 16 February 2024 the appellant was not granted access to all of the documents that she requested. The appellant appealed that decision, and on 5 June 2024, Kourakis CJ granted the appellant permission to appeal in respect of only one of the several categories of documents that had been declined by the Magistrate and ordered that the appellant pay 60% of the respondent’s costs.[3]  The appellant subsequently appealed that decision to the Court of Appeal and the appeal was dismissed.[4]

   [2]     CIV-21-012199 FDN 42.

   [3]     CIV-24 002046 (Kourakis CJ).

   [4]     Hanna v Flinders University [2024] SASCA 127 (Livesey P and Bleby JA).

   The impugned decision

7. In the meantime, the Claim has proceeded along its pre-hearing path. Central to these proceedings, on 22 April 2024, the Magistrate refused an application by the appellant (‘the Recusal Application’) dated 12 March 2024, which sought orders as follows:

   -The Court replace Magistrate Jackson from handling the proceeding; and

   -The Court assign another judicial officer to handle this civil proceeding on the ground that it was so complex and technical that it required a judge with expertise in the education sector.[5]

   [5]     FDN 50.

8. The grounds asserted in the Recusal Application were:

   1.That the appellant was in the process of appealing an earlier decision of the Magistrate in the proceedings;

   2.Bias and failure to apply legal principles [on the part of the Magistrate];

   3.Prejudice, being the denial of the appellant’s discovery requests;

   4.Abuse of the Magistrate’s discretion regarding discovery;

   5.Overly restrictive approach to discovery;

   6.Failure to adequately justify the discovery decisions;

   7.Procedural deficiencies in handling the discovery applications; and

   8.Misunderstanding and misinterpretation on the part of the Magistrate in relation to the discovery applications.

9. The Recusal Application was accompanied by an affidavit.[6] That document repeated the grounds on which the application was based and annexed the Notice of Appeal challenging the Magistrate’s orders in relation to discovery.

   [6]     FDN 52.

10. The Recusal Application was made within the proceedings, though the fact that the appellant requested that another Magistrate be assigned to the proceedings is consistent with the appellant believing that some other person was making the decision. 

11. The parties filed written submissions on the Recusal Application and it was set down for argument.[7]

    [7]     FDN 58 (respondent); FDN 61 (appellant).

12. The Magistrate approached the Recusal Application as if it should be understood as an application for the Magistrate to recuse herself. The Magistrate declined to do so, awarded costs against the appellant, and gave ex tempore reasons dated 22 April 2024.[8]

    [8]     Amelie Hanna v Flinders University CIV-21-012199, 22 April 2024.

13. In those reasons, the Magistrate relevantly said:

    I understand that the applicant is alleging apprehended bias rather than actual bias, as actual bias requires evidence to be put before the court where a judge has been influenced in reaching their decision and it is demonstrated that they are actually prejudiced in favour of or against a party.[9]

    [9]     Amelie Hanna v Flinders University CIV-21-012199, 22 April 2024, at [9].

14. The Magistrate then set out the legal basis for recusal and neither party has since taken issue with the principles as described.

15. The Magistrate considered that insofar as the appellant’s grounds for seeking recusal were directed at alleged errors by the Magistrate in refusing to grant orders for discovery, those issues would be considered by the Supreme Court and did not, in themselves, provide a basis for her recusal. This analysis dominated the first six grounds in the appellant’s application for recusal. In relation to the first ground, her Honour said:

    It is not enough that the applicant simply not agree with my decision. The fact that the earlier decision is under appeal does not provide any basis for the recusal application, without more. Even if the appeal is successful, in the ordinary course this would not provide a basis for recusal.[10]

    [10]   Amelie Hanna v Flinders University CIV-21-012199, 22 April 2024, at [13].

16. In relation to the second ground of application alleging bias and the Magistrate’s failure to apply legal principles in making the decision to decline to grant discovery, the Magistrate said:[11]

    The applicant submitted that more weight was given to the respondent’s submissions which give rises (sic) to the question of whether the applicant can achieve justice in this proceeding. Again, having regard to the submissions made, this is a collateral attack on the decision delivered on 12 February 2024.  The decision references the submissions made by both parties and any further analysis is for a higher court.

    [11]   Amelie Hanna v Flinders University CIV-21-012199, 22 April 2024 at [14].

17. In relation to the third and fourth grounds of application, the Magistrate found each to amount to a “collateral attack on the earlier decision which is otherwise on appeal.”[12]

    [12]   Amelie Hanna v Flinders University CIV-21-012199,  22 April 2024 at [15] – [16].

18. The Magistrate addressed the fifth and sixth grounds of application together.  Her Honour said:[13]

    The fifth and sixth bases were a restrictive approach to discovery and order deficiency by not ordering discovery. This is again a collateral attack on the decision of 12 February 2024. I also include in this category the applicant’s submission that I failed in my obligation as a judicial officer by not ordering broad disclosure for public welfare reasons.  In my view this was beyond the scope of the Discovery Application which was before me and a wide-ranging investigation beyond the pleaded cases is outside the proper scope of these proceedings.

    [13]   Amelie Hanna v Flinders University CIV-21-012199,  22 April 2024 at [17].

19. As to the adequacy of reasons, her Honour said:[14]

    A written judgement was delivered.  Any criticism about the adequacy of reasons therein can properly be brought in the appeal proceedings.

    [14]   Amelie Hanna v Flinders University CIV-21-012199,  22 April 2024 at [18].

20. In relation to the seventh ground of the application for recusal, concerning alleged procedural deficiencies, the Magistrate set out the considerations that informed the constraints she placed on the appellant in her presentation of the application. Her Honour observed that the appellant provided a 120-page application document to support her application for discovery, followed by two pages of written submissions, and was given greater time for oral submissions than the respondent (over one hour compared with 30 minutes).  Her Honour said:[15]

    I cannot consider that the respondent’s submissions were afforded greater time, length or weight in those circumstances.

    [15]   Amelie Hanna v Flinders University CIV-21-012199, 22 April 2024 at [19].

21. In relation to the eighth ground of application which concerned the Magistrate’s comprehension of the issues raised by the claim, the Magistrate said:[16]

    There appears to be a suggestion in the applicant’s submissions that I simply do not understand the claim because it is too complex or technical for me.  Judicial officers come from a variety of backgrounds, with a variety of strengths and intellect.  The suggestion that a judicial officer is not clever enough or competent enough to determine a matter is not appropriate.  The appropriate consideration is whether an error was made in fact or at law, and at present that is to be determined by a superior court.

    [16]   Amelie Hanna v Flinders University CIV-21-012199, 22 April 2024 at [20].

22. In summary, the Magistrate considered that the Recusal Application was primarily rooted in the appellant’s dissatisfaction with the outcomes of her discovery application. The Magistrate considered that this dissatisfaction was properly addressed through the mechanism of the appellant’s appeal against the orders made by the Magistrate in relation to that discovery application.

    The appeal against the recusal decision

23. The appellant’s appeal before me concerned the appellant’s challenge to the Magistrate’s decision not to recuse herself. The appellant listed fifteen grounds of appeal. These can be grouped as follows:

    1.Complaints about the Magistrate’s response to the appellant’s discovery application (grounds 4, 5, 7, 8, 9, 10, 11);

    2.Complaints about the Magistrate’s response to the appellant’s request for transfer of the proceedings (ground 1);

    3.Complaints about the Magistrate’s response to the appellant’s request for “specific performance” (grounds 3 and 6); and

    4.Complaints about the Magistrate’s “consistent” rulings in favour of the respondent, failure to understand the proceedings, and treatment of the recusal application (grounds 2, 12, 14, 15).

    5.A complaint as to the lack of reasons for the recusal (ground 13).

24. The appellant’s written submissions contained further exposition of her complaints in relation to the Magistrate’s decision under the following headings:

    1.Prejudice and procedural unfairness by asserting a lack of power to transfer the matter to the Supreme Court for hearing.

    2.Restrictive discovery and refusal to broaden discovery requests in the Magistrate’s decision of 16 February 2024.

    3.Prejudice about power to transfer the proceedings to the Supreme Court, ignoring the “evidence” of an email of a court registrar.

    4.Prejudice about urgent specific performance in that the Magistrate did not treat her application for specific performance as urgent.

    5.Bias in refusing to order discovery on 16 February 2024 of documents relevant to the appellant’s case.

    6.Bias in making an order for costs against the appellant where such an order was not sought in the respondent’s submissions.

    7.Failure in addressing “procedural deficiencies”, by limiting the appellant’s time to make submissions and limiting discovery.

    8.Bias in not allowing the appellant to amend her claim or seek broad discovery demonstrating a “consistent pattern of favouritism suggest[ing] a protective stance towards the respondent”.

    9.Bias in refusing to allow the appellant to amend her claim without explaining why the proposed amended claim needed to be the subject of an application to amend supported by an affidavit annexing the proposed amended claim.

    10.Failure on the part of the Magistrate to identify the criteria for bias as laid down in Ebner v Official Trustee in Bankruptcy[17] and to recognise that she met the criteria.

    [17] (2000) 205 CLR 337.

25. The appellant’s oral submissions on appeal were then advanced on a broader basis than either the recusal application or the Notice of Appeal, in that the alleged grounds for it to be appropriate for the Magistrate to recuse herself expanded into two areas not argued before the Magistrate:

    (1)The Magistrate’s attitude to the appellant on occasions other than the discovery application. In particular, the Magistrate’s treatment of the appellant at a directions hearing on an interlocutory application seeking several orders: that the Court transfer the proceedings to the Supreme Court, specific performance, and to permit the appellant to amend her claim to add new causes of action; and

    (2)The Magistrate’s connection with the firm of lawyers representing the respondent (of which the appellant became apprised subsequent to the bringing of the appeal).

26. On appeal, the appellant submitted that I should conduct an investigation to determine whether there is ongoing communication between the Magistrate and the respondent’s lawyers about the proceedings.

    Is the decision amenable to appeal?

27. Before examining the Magistrate’s decision by reference to the basis on which it was advanced in the notice of appeal, or the expanded grounds, it is necessary to consider whether the Magistrate’s decision is amenable to appeal at all.

28. It was not argued by the respondent that the Magistrate’s decision was not amenable to appeal. Nevertheless, jurisdiction is a matter about which the Court must satisfy itself.[18] 

    [18]   Re Nash [No 2] (2017) 263 CLR 443 at 450, quoting Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 at 415.

29. The appellant’s action invoked the civil jurisdiction of the Magistrates Court and was not a minor civil claim or a statutory action. Part 6 of the Magistrates Court Act 1991 describes the appellant’s rights of appeal. Section 40 states:

    40—Right of appeal

    (1)A party to a civil action (except a minor civil action) may, in accordance with the rules of the Supreme Court, appeal against any judgment given in the action.

    (2)If the rules of the Supreme Court provide that an appeal from a judgment of a particular class can only be brought with the permission of that Court, the right of appeal is limited accordingly, but in any other case an appeal lies as of right.

    (3)     The appeal lies to the Supreme Court constituted of a single Judge but the Judge may (if he or she thinks fit) refer the appeal for hearing and determination by the Court of Appeal.

    (4)If jurisdiction to try the civil action is created by statute and the terms of the statute are such as to indicate that Parliament did not intend that there should be an appeal from a decision made in the exercise of that jurisdiction, that intention prevails.

    (5)A right of appeal conferred by this section extends to a legal practitioner, witness or other person against whom an order under section 37 is made.

1. The right of appeal in s 40(1) is from “any judgement” of a magistrate. Relevantly, s 3(1) of the Act contains the following provisions:

   judgment means a judgment, order or decision and includes an interlocutory judgment;

   interlocutory judgment includes—

   (a)an interlocutory order; and

   (b)an order or ruling relating to the admissibility or giving of evidence;

2. There is no definition provided for the terms “order”, “decision” or “ruling”. The question for the Court is: did the Magistrate’s orders and accompanying reasons issued on 22 April 2024 amount to a “judgement” such as to enliven a right of appeal?

3. Notwithstanding that the phrases “judgement, order or decision”, “interlocutory order”, and “order or ruling relating to the admissibility or giving of evidence” suggest an intention to cover all types of judicial responses to parties’ applications, some pronouncements (to use a neutral term) are not judgments that are amenable to appeal. Some pronouncements made in the course of a proceeding by a Magistrate are amenable to appeal; others are not. There is a distinction between a decision to decline to recuse which is not accompanied by any determination of a party’s separate application for orders or other relief (a “bare recusal”), and one that is followed by a determination or orders which can be said to have been infected by the apprehended or actual bias of which the party complains.

4. The decision of Siewertsz Van Reesema v Police (‘Van Reesema’),[19] addressed s 42 of the Magistrates Court Act 1991 which confers the right of appeal for criminal proceedings but uses the same wording as is contained in s 40. Bleby J said at [18]-[20]:

   Not all decisions made by a magistrate will fall within the definition of “judgment” for the purposes of s 42. It is necessary to distinguish between, on the one hand, interlocutory orders or judgments and, on the other hand, rulings made in the course of a trial. Rulings made in the course of a trial are not judgments and, thus, no appeal lies under s 42 of the Magistrates Court Actagainst such a ruling, even with leave. If a litigant is dissatisfied with a ruling made in the course of a trial and is dissatisfied with the judgment at the conclusion of a trial, the only redress is to appeal against the judgment, alleging as a ground of appeal, the error in the ruling.

   The question of what constitutes a “judgment” or “order” was considered by the Full Court in Legal Practitioners Complaints Committee v A Practitioner. King CJ said:

   A judgment or order is a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings then before the court or judge. The question decided may be the substantive question or one of the substantive questions raised in the action; or it may be the question or one of the questions raised in interlocutory proceedings taken in the course of the progress of the action. Judgments and orders on the one hand are to be distinguished from incidental rulings given in the course of hearing and determining such questions. Examples of such incidental rulings are those which relate to adjournments, the time and place of hearing, admissibility of evidence and the exclusion or otherwise of witnesses from the hearing, as well as decisions upon submissions as to matters of fact, law or procedure made during the course of a hearing.

   Whether a decision is an incidental ruling or an order depends largely on the context in which the decision is made.  It is therefore necessary to consider each of the decisions appealed against to determine whether each is an incidental ruling or an interlocutory judgment.

   [19] [2009] SASC 8.

5. In that case, the Court was considering an appeal from a Magistrate who elected to disqualify himself without an application from the parties, but subsequently heard the matter due to a lack of available Magistrates. At no stage did the parties make an application. Bleby J said at [27]-[29]:[20]

   I therefore consider that there has been no decision at all from which it is possible to appeal. The appeal in relation to this issue is incompetent.

   In any event, even if there had been a formal decision of the Magistrate not to disqualify himself, that would not constitute an interlocutory judgment or order. It would be an incidental ruling given in the course of the hearing and could not be appealable at that stage. In R v Watson; ex parte Armstrong a majority of the High Court held that a judge who continues to sit after having been asked to disqualify himself does not make a “decree, judgment or order”, and therefore no appeal lies until after final judgment. That does not mean to say that, in an appropriate case, judicial review proceedings could not be brought at any time.

   The decision in Ebner v Official Trustee in Bankruptcy confirms that the failure of a judge to recuse on the ground of apprehended bias can properly be the subject of an appeal against the final judgment delivered by the judge.

   (Footnotes omitted)

   [20] Ibid.

6. In Southern Equities Corporation Ltd (In liq) v Bond,[21] each of the members of the Full Court, in separate judgments, considered that a bare recusal is incapable of appeal.[22] In allowing the appeal in this case, Bleby J said at [109]-[114]:

   A request, in whatever form, that a judge disqualify himself or herself could seldom be regarded as an inter partes application requiring resolution of an inter partes dispute by the judge. A decision to proceed with a hearing, or not to proceed, likewise would not generally be regarded as an order binding on parties and necessarily requiring them to do or to refrain from doing something, being orders of a type usually made by judges of this Court. For that reason, it is not surprising that four members of the High Court in their joint judgment in R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 266 said that a judge who simply continues to sit after it has been submitted that he is disqualified does not thereby make a "decree", and that no appeal would lie from such decision. In that case, "decree" was defined to mean a "decree, judgment or order". Likewise, subsequent decisions holding that appeals against such rulings are incompetent are also not surprising. I refer in particular to Barton v Walker [1979] 2 NSWLR 740, Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272 per Priestley JA at 273, Kapetanos v Selig (1984) 37 SASR 493 and R v Rogerson (1990) 45 A Crim R 253. In each of those cases, the applications made to the judge or magistrate concerned to disqualify himself were held not to be justiciable applications. They could not give rise to an interlocutory order from which an appeal could be brought. The reasoning in those cases was referred to but not passed upon in Nicholson v Griffiths (1988) 143 LSJS 204 at 210 and again by the present Chief Justice in IOOF Australia Trustees Ltd v SEAS Sapfor Forests Pty Ltd [1999] SASC 249.

   However, some of the reasoning has also been criticised by Kirby P in Rajski v Wood (1989) 18 NSWLR 512 at 518 and by the Full Court of the Federal Court of Australia in Brooks v The Upjohn Company (1998) 156 ALR 622.

   In Rajski there was an application to the Court of Criminal Appeal, apparently seeking to invoke original jurisdiction, for declarations that the trial judge should have disqualified himself and that the decision of the Chief Justice and/or listing judge to list the matter before the judge in question was invalid. The judges concerned were sued as parties. The application was dismissed as incompetent because it disclosed no reasonable cause of action (Priestley JA and Hope AJA) and because it was vexatious and an abuse of process (Kirby P). However, Kirby P considered that if an ancillary order had been made which was dependent upon the finding of the intended trial judge that he was not disqualified, an appeal, subject to the obtaining of leave, would lie.

   Brooks was an application made by formal notice of motion, resulting in a sealed order of the judge that the orders sought by the applicant be not made, and providing for costs of the unsuccessful disqualification application. Barton v Walker was distinguished on the basis that in the latter case no notice of motion had been filed nor any formal order made.

   No objection was taken by the respondents to an appeal against the refusal by the trial judge to disqualify himself in Australian National Industries Ltd v Spedley Securities Ltd (In Liquidation) (1992) 26 NSWLR 411. The majority appears to have distinguished Barton v Walker on the ground that in Spedley the trial judge formally refused a request to list before another judge the hearing of proceedings in which he had earlier made crucial findings as to credit in the course of interlocutory proceedings. In Gas and Fuel Corporation Superannuation Fund v Saunders [1994] FCA 1237; (1994) 123 ALR 323, Gummow and Heerey JJ at 332 - 337 distinguished Barton v Walker on similar grounds as did Kirby P in Rajski v Wood, namely that the attack was on a formal order of the Court made in direct consequence of the trial judge's ruling as to apprehended bias.

   In this case there was, perhaps fortuitously, an alternative application by one of the appellants for an order that the trial of the action be heard by a judge other than the intended trial judge. That application was formally dismissed by order of the trial judge, who also ordered the appellants to pay the respondents' costs of the application. Barton v Walker and like decisions can therefore be distinguished without passing judgment on the reasoning behind them. The actual order made by Debelle J is properly the subject of an appeal, by leave (which has been given), to this Court.

   [21] (2000) 78 SASR 339.

   [22] Ibid [3]-[4] (Olsson J), [97]-[100] (Williams J) and [107]-[118] (Bleby J).

7. In Stone v Moore,[23] Nicholson J considered whether a refusal to recuse constituted a “decision” such as to enliven the right to appeal. In those proceedings, exchanges between the trial judge and counsel for the appellant in the early stages of the hearing led to an application to the trial judge to recuse himself. The subject matter of the exchanges was the merit of various points of the appellant’s pleaded case. The appellant submitted that the exchanges disclosed a reasonable apprehension of pre-judgement on certain issues. The appellant filed affidavits in support of the application. The trial judge ruled on the application later in the day that it was made, refusing the application to recuse.

   [23] (2015) 122 SASR 54.

8. I respectfully adopt the careful exposition by Nicholson J of the recent history of consideration of the amenability of a bare recusal to appeal. It invites recitation in some detail. His Honour set out the right of appeal from a judgement of the District Court under s 43 of the District Court Act 1991 and the definition of “judgement” which is relevantly the same as that in s 40 of the Magistrates Court Act 1991. His Honour cited Bleby J’s reasoning in Van Reesema,[24] describing it as the “conventional or received position” on the issue.[25] His Honour proceeded to consider authorities from other jurisdictions and said:[26]

   [24] Ibid (n 19).

   [25] Ibid (n 23) 64 [27].

   [26] Ibid 65-66 [28].

   The judgments of Hodgson JA and Basten JA (with whose reasons Hodgson and Bell JJA agreed) in Lee v Cha  provide, with respect, a helpful explanation and summary of the conventional understanding. Hodgson JA said this:

   I agree that the weight of authority supports the view that, if all that happens is that, in the course of a trial, a judge is asked to disqualify himself or herself and declines to do so, there is no order from which an appeal can be brought. In the case of tribunals apart from superior courts, however, an application can be made for an order in the nature of prohibition.

   The grey area then is, what more is required for there to be an interlocutory order from which an appeal can be brought, subject to the grant of leave to appeal. Would it be enough, for example, that there be a document filed in court seeking orders that the judge disqualify himself or herself, that the hearing be terminated, and that there be an order that the trial commence de novo before another judge; and that the application be dismissed, with an order that the applicant pay the costs of the application. My tentative view is that there would then be an order from which leave to appeal could be sought. Would this still be the case if the application were dismissed with no order as to costs? Perhaps so; although then the situation becomes very difficult to distinguish from a case such as the present, where to seek disqualification must by implication also involve seeking orders that the hearing be terminated and that the trial commence de novo before another judge.

   Basten JA reviewed various authorities of the High Court and numerous intermediate courts of appeal before explaining as follows:

   The principle set out in the cases referred to above has been described as “well established”: see Sir Anthony Mason, “Judicial disqualification for bias or apprehended bias and the problem of appellate review” (1998) 1 CLPR 21 at 22 (col 3). Nevertheless, its foundations have not been uniformly respected. The crack in the foundations, which tends to undermine the structure, is that a complaint of bias or apprehended bias may be relied upon as a ground of challenge in respect of any final or, significantly, any interlocutory order which is susceptible to appeal whether by leave or as of right: see, eg, Raybos Australia,cited above at [18] (Priestley JA) approved in Rajski v Wood, cited above at [18], at 518D (Kirby P) and 523B-C (Priestley JA). Whether or not the bias or apprehended bias has affected the actual order, the challenge is allowed because it alleges that the court was not properly constituted for the purpose of making any order in the proceedings. Frequently consequential orders will be made which will engage a statutory provision conferring a right to appeal, usually by way of leave: see, eg, Gas & Fuel Corporation Superannuation Fund v Saunders [1994] FCA 1237; (1994) 52 FCR 48 at 64 (Gummow and Heerey JJ, Davies J agreeing). Whether such an informal request, if rejected, can properly give rise to a costs order need not be considered: but if a costs order were made it would affect the interests of a party so as to be an order which may be the subject of an appeal.

   His Honour, after considering some other decisions, continued:

   Some of these difficulties have been noted in other jurisdictions including in a careful judgment of the Full Court of the Supreme Court of South Australia in Southern Equities Corporation Ltd (In liq) v Bond [2000] SASC 450; (2000) 78 SASR 339 at [3]- [4] (Olsson J), [97]-[100] (Williams J) and [107]-[118] (Bleby J).

   If it were necessary to resolve in the present case whether an appeal was available, I would conclude that it was not. The weight of authority in this Court clearly favours that proposition.

   …

9. Nicholson J then referred to the observations of the plurality’s judgment in the High Court decision of Michael Wilson & Partners v Nicholls, where Gummow ACJ, Hayne, Crennan and Bell JJ said: [27]

   [27] Ibid 68-69 [30]-[31] discussing Michael Wilson & Partners v Nicholls (2011) 244 CLR 427 (‘Michael Wilson’), 450-451 [79]-[86].

   In most cases, a judge's refusal of an application that the judge not try, or continue to try, a case on account of reasonable apprehension of bias will constitute a final determination by the judge that the facts and circumstances relied on by the applicant do not establish the relevant apprehension. In such a case, it may be that an applicant who does not seek to challenge the refusal by seeking leave to appeal should be held to have given up the point.

   In this case, if the respondents were right in asserting that there was a reasonable apprehension of bias, the whole of the trial with its attendant expense and use of court time would be wasted. Of course it must be recognised that the respondents in this case had no right to appeal against the refusal of Einstein J to recuse himself. But the respondents did have a right to seek leave to appeal.

   As was explained in Gas & Fuel Corporation Superannuation Fund v Saunders, a later interlocutory order made by a judge who has refused an application that the judge not hear the matter on account of a reasonable apprehension of bias is an order against which leave to appeal can be sought on the ground that the judge who made the order should not have done so. Conversely, as Saunders itself illustrates, where a judge allows an application for disqualification and makes orders effecting that decision, leave to appeal can be sought against those orders on the ground that they should not have been made. Thus the order against which the respondents could have sought leave to appeal in this case was whatever order was made by Einstein J after he had refused to recuse himself. If, as the respondents asserted, Einstein J should not have continued to sit in the matter, whatever order was made (other than an order adjourning the case for the purpose of allowing another judge to deal with it) was an order which should not have been made by the judge who made it and would found an application for leave to appeal. And as it happened Einstein J made such an order on 4 June 2009 when he set dates for compliance with the general requirements for trial of proceedings in the Equity Division.

   In so far as Barton v Walker holds to the contrary, that decision should not be followed. The decision in Barton v Walker depended upon the proposition that whether a judge should continue to hear a case was a matter only for the judge concerned and that a motion that the judge disqualify himself or herself was "not cognizable"; the judge was held to make no order on the application for disqualification.

   The decisions about apprehension of bias that have been given by this Court since Barton v Walker show that a judge's decision to grant or refuse an application for disqualification is not a matter only for the particular judge. As was pointed out in the plurality reasons in Ebner, the apprehension of bias principle has its roots in principles fundamental to the common law system of adversarial trial.

   Whether failure to seek leave to appeal against refusal of an application that a judge not try the case on account of a reasonable apprehension of bias precluded maintenance of the complaint in an appeal against the final judgment would require consideration of whether the failure to seek that leave was reasonable. That would require examination of all relevant circumstances. Ordinarily those would include the stage the proceedings had reached when the disqualification application was made and refused and the consequences that would follow from leaving appellate determination of the issue of disqualification until after trial. In this case, trial was fixed to begin within a very short time after the refusal. How much time and money would be spent if the question were to be left over to an appeal against final judgment? The trial of this matter was expected to be very long. A lot of time and money would have been wasted if the judge who tried the proceedings should not have done so.

   If it was reasonable in the circumstances of the particular case not to seek leave, and there was no other basis upon which a choice not to persist with the allegation of apprehended bias can be identified as having been made (either then or at some later time), the point would remain open in an appeal against the final judgment. But if it was reasonable in the circumstances to seek leave, and leave was not sought, why should it not be concluded, absent countervailing considerations, that the party making the complaint did not maintain the objection? Simply saying to the opposite party that it is sought to preserve the point for consideration in an appeal against final judgment would not of itself be effective to achieve that result.

   As explained earlier these points need not be decided. It is, however, important to add, contrary to what was said in the Court of Appeal, that an application for leave to appeal against the rejection of an application that a judge not hear a matter due to apprehended bias may well be a case where the usual criteria would require leave to be granted, at least if a long and costly trial would be wasted if the judge's decision were incorrect.

   (Footnotes omitted)

1. Nicholson J proceeded to consider and endorse the observations of Basten JA as to the meaning and effect of the plurality’s obiter remarks, in Barakat v Goritsas.[28] Nicholson J cited with approval Basten JA’s rejection of the submission that the High Court’s obiter in Michael Wilson supported the proposition that a bare recusal is amenable to appeal,[29] where Basten JA said in that case:[30]

   This contention had, however, a second limb, namely that the subject matter of the proposed appeal could be the decision of the primary judge to reject the recusal application. The applicant submitted that the plurality in Michael Wilson & Partners had sanctioned such a course. That submission was based upon two passages in the judgment, each of which was, concededly, part of the obiter discussion in relation to waiver. Thus, at [84], their Honours referred to a "failure to seek leave to appeal against refusal of an application that a judge not try the case on account of a reasonable apprehension of bias". There was also reference to "an application for leave to appeal against the rejection of an application that a judge not hear a matter due to apprehended bias": at [86]. The applicants also referred to the reference in Brooks v The Upjohn Company (1998) 85 FCR 469 at 475, in the judgment of Beaumont, Carr and Branson JJ, to the "somewhat artificial device of fastening on" interlocutory orders, other than the refusal to recuse, to provide the subject-matter of an appeal.

   The step said to have been taken by the High Court in these passages is no doubt one which could be taken by that Court. However, the passages in which the statements quoted appear were directed to other issues and bear the hallmarks of concise, if elliptical references, to an application for leave to appeal based on the ground of the refusal to recuse. The express reference to both Gas & Fuel Corporation and to Brooks, in the same passage in the joint judgment, together with the affirmation set out at [13] above of the approach adopted in Gas & Fuel Corporation, is inconsistent with some implicit rejection of the need to identify an interlocutory order, other than the refusal to recuse, to form the basis of an application for leave to appeal. At best, the applicant's submission involves an uncertain inference: that is an insufficient basis for departing from an established line of authority in courts of appeal in this country, including not merely the two judgments just referred to, but also Rajski v Wood (1989) 18 NSWLR 512 at 518 (Kirby P), 527 (Hope AJA) (Priestley JA agree with both) and Witness v Marsden [2000] NSWCA 52; 49 NSWLR 429 at [96] (Heydon JA, Mason P agreeing). A single judge of this Court should continue to follow the overwhelming weight of appellate authority in the absence of any clear statement by the High Court to the contrary.

   (Footnotes omitted)

   [28] [2012] NSWCA 8.

   [29] Ibid (n 23) 70-71 [32]-[33].

   [30] Ibid, quoting Barakat v Goritsas [2012] NSWCA 8, [15]-[16].

2. Nicholson J endorsed this reasoning. His Honour said:[31]

   [31] Ibid (n 23) 71-72 [33]-[42].

   I agree with Basten JA. By way of supplementing the reasons his Honour has given for rejecting the contention that Michael Wilson stands for the proposition that a bare refusal to recuse is directly appellable, I add the following.

   In my view, the key to understanding the plurality's position is in the second and third paragraphs extracted above. In the third paragraph, the plurality states the conventional position that it was always open to the respondents to appeal against a subsequent interlocutory decision by the trial judge with apprehended bias as a ground. The plurality helpfully identifies such an order that would have been available on the facts of the case.

   My first observation is that it was unnecessary for the plurality to have engaged in this excursis, if the intention was simply to sweep away Barton v Walker and, in effect, the earlier High Court pronouncement in R v Watson; Ex parte Armstrong and to render a bare refusal to recuse appellable.

   A second observation is that this third paragraph excursis appears to come as an amplification of the relatively bald statements in the last two sentences of the immediately preceding (second) paragraph.

   “Of course it must be recognised that the respondents in this case had no right to appeal against the refusal of Einstein J to recuse himself.  But the respondents did have a right to seek leave to appeal.”

   (Emphasis added.)

   I do not read that last sentence as referring to a right to seek leave to appeal against the refusal to recuse.  I do not see how the fact that there might only be a right to seek leave to appeal against a refusal to recuse (rather than an absolute right of appeal) would be particularly important to the question of principle whether such an appeal, itself, is competent.

   These two sentences are to be read in the context of the plurality’s consideration of whether, on the facts of this case, there might have been a waiver.  The first sentence states, without express qualification, the conventional position – the respondents had no right to appeal against the refusal to recuse.  The second sentence also states, without express qualification, the conventional position – the respondents had (on the facts) a right to seek leave to appeal.  The third paragraph then explains why and how, on the facts, this right to seek leave to appeal against an interlocutory order arose, so as to provide opportunity for a collateral attack on the refusal to recuse.

   My third observation is that, ordinarily, one would expect an exploration of the principles underlying the conventional position that a bare refusal to recuse is not amenable to appeal. Indeed, and this is the fourth observation, no consideration is given to R v Watson; Ex parte Armstrong in this context. Rather, and of all of the many intermediate courts of appeal authorities that have adopted and sought to justify the conventional position, the plurality raised a concern only with Barton v Walker — “Insofar as Barton v Walker holds to the contrary, that decision should not be followed”.

   Context is important and this is my final point. The observation concerning Barton v Walker comes immediately after the third paragraph in which the plurality explains how a collateral attack was available on the facts of this case. When the plurality raised the concern that Barton v Walker might hold to the contrary, it arguably was concerned that Barton v Walker might be understood as challenging even the justiciability of the collateral attack. Samuels JA referred to a bare refusal to recuse as being a matter that is not “cognisable”. If Barton v Walker were seen to preclude even a collateral attack, it would go further than other leading authorities and be inconsistent with the accepted position that an interlocutory judgment or order can be challenged on the basis that the judge making it had lacked power to do so.

   By way of conclusion to this point, I agree with the respondent's submission that no appeal lies from the judge's dismissal of the appellant's application to recuse himself on the basis of apprehended bias. I am unable to find a clear indication by the plurality in Michael Wilson to the effect that a bare refusal of a recusal application can form the basis of an appeal. The weight of authority remains against that proposition. The appeal is incompetent to this extent.

   However, there remains the question of whether any further order was made by the Judge from which an appeal could be pursued.

   As already discussed, where a ruling on a recusal application is followed by an order or judgment affecting the rights of the parties to a proceeding, an appeal may be brought in relation to that subsequent order or judgment (subject to any permission requirement).  Such an appeal may raise any alleged inappropriate recusal or failure to recuse as a ground of appeal.

   (Footnotes omitted)

3. What emerges from this analysis is that a decision not to recuse, without more, is not a “decision” that is amenable to appeal because whilst it is capable of being wrongly decided, any such error does not engage with any action to which the prejudice of bias can attach. It is the operation, or potential operation, of bias on the applicant’s rights that is to be cured by recusal. The bias must engage with a particular outcome.

4. In the current proceedings, the appellant seeks to appeal a bare recusal.

5. In this appeal, the appellant has prematurely appealed the recusal rather than the effect of non-recusal on a particular order or decision that the appellant says is contaminated by apprehended bias. 

6. Accordingly, the appeal is not competent and should be dismissed.

   Is leave required?

7. If I am wrong in that assessment, and the determination of the application for recusal was a “decision” for the purposes of s 40 of the Magistrates Court Act 1991, then the Magistrate’s decision was clearly an interlocutory one in respect of which the applicant requires leave to proceed. It is convenient to consider that issue.

8. In determining whether leave to proceed should be granted, the Court acts in the interests of justice and considers:[32]

   a)whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal;

   b)whether the decision raises an issue of principle or general importance; and

   c)whether allowing the decision to stand would work a substantial injustice to the applicant.

   Assessment of the merits of the appeal for the purpose of determining whether leave should be granted

   [32]   Flowers v Hicks [2024] SASCA 126, [26].

9. As indicated earlier, the appellant’s arguments extended significantly beyond the basis on which the recusal was sought, and in particular sought to argue a new ground of apprehended bias that was discovered only after the recusal application had been decided, and add an allegation of actual bias.

10. The test for recusal was stated by the High Court in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[33] The test requires identification of the factor which it is said might lead a judge to resolve a question other than on its legal and factual merits, then requires an articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits, and an assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.[34]

    [33] (2023) 409 ALR 65.

    [34] Ibid 77 [38].

11. The principles associated with recusal for apprehended or actual bias relevant to the circumstances under consideration include:

    ·Judges do not select their cases, and parties cannot select their judges;[35]

    ·A judge has a duty to hear and determine an assigned case unless there is good reason not to;[36]

    ·When applying the test for recusal, the court must form a view of the public’s view, not the court’s own view, as to whether bias might be apprehended;[37]

    ·A fair-minded lay observer “is neither complacent nor unduly sensitive or suspicious;[38]

    ·The lay observer may be taken to understand, by reason of professional training and experience and fidelity to the judicial oath or affirmation, that the judge will have a greater capacity than most to discard irrelevant, immaterial and prejudicial information and to discharge the judicial function uninfluenced by past professional relationships.[39]

    [35]   Harradine v Chief Executive of the Department for Education [2021] SASCA 139, [4] (Livesey P).

    [36] Ibid.

    [37] Ibid (n 33) 78 [45], quoting CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76.

    [38] Ibid 79 [47].

    [39] Ibid [48].

    An excursion  – my own recusal?

12. At the commencement of the oral hearing of the appeal before me on 9 August 2024, the appellant asked whether I was Magistrate Jackson’s “friend” and the following exchange ensued:

    Appellant: Before I start I have a question please if you allow me. Is Magistrate Jackson is your friend?

    HH: I know who Magistrate Jackson is; she is a colleague, she is not a personal friend, no.

    Appellant: Yeah, because I find a photo in public gathering with you and Magistrate Jackson drinking a cup of wine.  So, is it –

    HH: Well, you tell me what occasion you’re talking about.

    Appellant: It was a gathering I think in Law Society, something like that.

    HH: Well, without more I can’t remember, it is quite possible that I have attended a function with a group of other judges, magistrates and possibly members of the legal profession at some time over my judicial career, that is quite possible.

    Appellant: Okay.  So, my question is to make sure that I receive a fair trial.

    HH. Yes.

    Appellant: Okay.

    HH: Well, in relation to that, Dr Hanna, do you seek further information than the information I have given you about that relationship with Magistrate Jackson?

    Appellant: What do you mean by ‘seek further information’?

    HH: Do you need further information so that you might ask –

    Appellant: I just need to make sure that I receive a fair trial, and that why I ask you.  If you said that she is not your friend, and you feel that you are able to handle this matter without any kind of bias, then okay.

    HH: Thank you.  I consider that I am not required to recuse myself because of the professional acquaintance I have with Magistrate Jackson.  It is very similar to the professional acquaintance I have with many other members of the judiciary and magistracy and no more. 

    Appellant: Okay.  All right. Can I start?

    HH: Yes, please.

    On appeal – listening to the audio of the hearing of 5 April 2024

13. At the hearing on 9 August 2024, the appellant sought to support the points that she wished to make by playing excerpts of the audio recording that she had obtained from the Magistrates Court. I declined to allow that for several reasons:

    1.The appellant had not foreshadowed to the respondent, who had also obtained a copy of the audio recording, which passages she wished to play;

    2.It was potentially unhelpful to the task at hand for the Court to listen only to selected parts of the audio recording; and

    3.There was a question raised by the respondent as to whether the appellant would be breaching the undertaking to the Magistrates Court as to the use to which she would put the recording.

14. I therefore required the appellant to make her complaints about the hearing without recourse to the audio. At the end of the hearing, without opposition, I advised the parties that I would obtain a copy of the audio of the hearing on 5 April 2024 before the Magistrate and listen to the whole of it prior to deciding the matter.  I have done so. I will make reference to the audio as required to address the appellant’s particular arguments.

    The original grounds – the Magistrate erred in her decision not to recuse herself because the determination of the document disclosure application was undertaken in a manner that may lead an observer to conclude that the Magistrate may not bring an impartial mind to the issue in dispute

15. As evidence of the Magistrate’s bias, the appellant described the fact that the Magistrate had wrongly said that she did not have power to transfer the proceedings to the Supreme Court; that she did not have the power to issue an injunction or order specific performance; that she characterised  the appellant’s urgent applications as non-urgent; and that the Magistrate said that that certain documents did not require disclosure. The appellant asserted that each of these was wrong as a matter of law, and the last assertion had been shown to be wrong by the appellant’s partially successful appeal against the Magistrate’s discovery orders.

16. On appeal to this Court, the appellant did not engage with the task of demonstrating error in the Magistrate’s view that any errors she may have made were matters to be argued on the appeal rather than a basis for recusal. Rather, the appellant’s approach was to repeat the submissions made at the recusal application and add further arguments and examples. The appellant approached the appeal as if it were a fresh application, albeit to this Court, for recusal.

17. The respondent submitted that there was no arguable point to be made by the appellant and that leave to proceed should be refused.

18. I have not identified any error of law or principle in the Magistrate’s reasoning. Her Honour’s characterisation of the majority of the appellant’s arguments as an attack on the Magistrate’s determination of the disclosure application, which was at that time on appeal, was plainly accurate. The Magistrate’s observation that the fact that a party might consider, even correctly as it may turn out, that a judicial officer has made an error in the disposition of the party’s interlocutory application is not a ground for the judicial officer to recuse, is unremarkable.  The contention that the Magistrate did not provide a justification for her decision is unsustainable.

19. Leave to appeal on the original grounds of appeal is refused.

    On appeal – alleged dismissive conduct by the Magistrate

20. The appellant submitted that the recusal decision was wrong because the Magistrate demonstrated a dismissive attitude to her arguments. Whilst it is difficult to separate this complaint from the contention that bias could be inferred from the Magistrate’s refusal of the applicant’s requests, there was a relatively clear complaint about the Magistrate’s demeanour separate from the complaints about her Honour’s decisions.

21. I have listened to the audio recording of the parties’ appearance at the directions hearing on 5 April 2024. The directions hearing was listed urgently to hear the appellant’s applications for transfer of the proceedings and to add new causes of action. It is evident that there were several matters at the forefront of the Magistrate’s approach:

    1.The appellant’s application was made notwithstanding an earlier decision by the Magistrate that the appellant’s recusal application should be dealt with before any other application, including the application to amend the primary claim;

    2.It being a directions hearing, the Magistrate sought to corral the appellant’s submissions such that they would provide the Magistrate a basis to determine whether to set down the application for argument, and if so, to issue directions scheduling the steps for such an argument to occur; and

    3.The Magistrate had doubts as to the utility of the argument on the basis that her preliminary view was that she lacked the power to make the transfer order, and considered that she had already determined that the question of amendment of the claim must await the outcome of the recusal application.

22. Against this background, the exchanges were, at times, testy. The appellant appeared not to appreciate the inconsistency between her earlier, unresolved application that the Magistrate recuse herself, and the subsequent urgent application that the Magistrate nevertheless proceed to make other interlocutory orders. The appellant did not accept the Magistrate’s suggestion that the Magistrate might lack the power to transfer the proceedings to the Supreme Court. The appellant did not accept that the Magistrate could not make orders on the occasion of the Directions Hearing directing the respondent to cease bullying her with immediate effect. Both the Magistrate and the appellant interrupted one another on mutual occasions. Towards the end of the hearing, it is evident that the Magistrate became concerned that the appellant was not responding to direct questions concerning the procedural timetabling but making submissions on other topics, and that this was unnecessarily lengthening the hearing. 

23. The respondent’s representative was asked for, and made, a minimal contribution throughout the hearing on that occasion. When exchanges did occur, they were formal and brief.

1. I accept that the appellant likely perceived that the Magistrate was abrupt and perhaps frustrated with her. Towards the end of the hearing, the Magistrate cut her off firmly and did not permit her to continue with a submission, describing it as unresponsive to the questions put to her. A judicial officer has an obligation to try to avoid truculence and discourtesy.[40] However, I do not consider that the appellant has an arguable point that a reasonable observer might conclude that the Magistrate might not approach the substantive issues – either the interlocutory applications themselves or the primary dispute in the proceedings - with impartiality.  Importantly, although the Magistrate’s tone was at times mildly impatient, it is evident that the Magistrate was urging the appellant to consider the legal basis for her application so that the appellant might assist the Magistrate to determine the application on its legal merits.

   [40]   Anderson v National Australia Bank [2007] VSCA 172, [95] (Nettle JA).

2. I do not consider that the appellant has an arguable point that the Magistrate’s demeanour in the hearing of 5 April 2024 gave rise to a reasonable apprehension of bias.

   On appeal – the new ground alleging bias arising from the Magistrate’s relationship with the respondent’s solicitors

3. After the appeal against the decision declining to recuse was filed, the appellant undertook some research on the internet and formed the view that the Magistrate had formerly worked as a solicitor at the firm of solicitors representing the respondent. The appellant raised this at the hearing of the appeal but because these assertions were not referred to in any appeal document, I declined to hear her submissions on that topic. The appellant then filed, after I had reserved my decision, an application seeking to “lead new evidence” regarding that connection.

4. In her supporting affidavit, the appellant deposed that she had discovered through the media platform “LinkedIn” that the Magistrate had, for the period between January 2015 and September 2016, worked at HWL Ebsworth, which firm now represents the respondent in these proceedings.

5. I heard the interlocutory application to re-open the appeal on 9 September 2024. The respondent did not oppose my consideration of this complaint on the appeal and indicated that I could proceed on the basis that it was an accepted fact that the Magistrate was associated with HWL Ebsworth for the period cited by the appellant. The respondent otherwise opposed the Court’s receipt of the appellant’s affidavit dated 3 September 2024 (FDN 10) on the grounds that it annexed a variety of documents, the relevance and provenance of which were not established. I accepted that submission and granted the appellant’s application to address me on the further argument that the Magistrate ought to have recused herself because of her association with HWL Ebsworth, but without reliance on the affidavit which was not accepted into evidence.

6. The appellant’s primary submission on this ground was that the Magistrate’s failure to disclose her prior association with the firm gave rise to a reasonable apprehension of bias. The appellant submitted that the passage of time did not diminish the obligation to disclose.  The appellant emphasised that the employment relationship concluded in 2016, which she described in any event as “recent”.

7. The appellant sought to rely on an authority which she said supported the proposition that a judge must recuse where there is a connection with a previous employer. However, the citation she provided did not align with a judgment from any Australian court searched by reference to the names of the parties or the subject of recusal. The appellant was unable to provide a copy of the judgement but said that she had a summary. Having conducted further enquiries, I am satisfied that the authority cited was generated by artificial intelligence and does not correlate with a decision of an Australian court. I do not consider that the appellant has misled the Court deliberately but has mistakenly assumed that her internet searches would yield accurate results. 

8. The appellant’s submissions as to bias extended to contending that there was evidence that the Magistrate was maintaining a relationship with the firm, including by discussing the matter with an employee or employees of the firm outside of the proceedings.

9. The appellant submitted that at the beginning of the directions hearing on an interlocutory application in the Magistrates Court on 5 April 2024, that Magistrate Jackson told the appellant that the Magistrate thought that the respondent “had issues” with the appellant’s interlocutory application. The appellant advised the Court that the Magistrate said this without having heard from the respondent’s lawyers. From this, the appellant concluded that it was necessary for me to investigate whether the Magistrate’s knowledge of the respondent’s view of the appellant’s interlocutory application was derived from private discussions between the Magistrate and the respondent’s lawyers. The appellant asked that I order the production of phone call logs between the firm and the Magistrate, and order that the Magistrate’s personal and professional emails be searched, to determine whether there had been communication between the Magistrate and the firm about the proceedings, from which the appellant had been excluded.

10. The appellant contended that the manner in which the Magistrate interacted with Mr Swan of counsel also suggested that the Magistrate has maintained a relationship with the firm. She said:

    “all the way through during the different hearing I as a lay observer I can see that she is so biased toward them and against, toward the respondent or toward HWL law firm, whatever they said they (sic) take it into consideration.  Whatever I said, it’s been dismissed, ignored, she did not believe it.”

11. The appellant accepted that this was an allegation of actual bias.

12. The fact that a judicial officer was formerly employed by a firm of solicitors, or was a barrister in Chambers, creates the possibility of a relationship between individuals that may give rise to a reasonable apprehension of bias. However, I am unaware of any authority that supports the proposition that such a relationship automatically creates such an apprehension. In fact, the authorities support the proposition that a mere association through a former employment association is unlikely, without more, to give rise to a reasonable apprehension of bias.

13. In QYFM v Minister for  Immigration , Citizenship, Migrant Services and Multicultural Affairs,[41] the High Court was required to consider a claim of apprehended bias based on relationship, or association, between the judicial officer and a person with an interest in the dispute. In a joint judgment, Kiefel CJ and Gageler J said at [39]:

    Ebner[v Official Trustee in Bankruptcy] -  specifically rejected the notion that there exists a category of case, involving some "interest" or "association" on the part of a judge, in respect of which an apprehension of bias will be presumed without needing to undertake such an analysis in order to determine that the criterion is satisfied. The submission by the appellant that this Court should now recognise "incompatibility" between the judicial role and another role previously performed by a judge as a category of "interest" in respect of which an apprehension of bias will be presumed is irreconcilable with Ebner and must be rejected.

    [41] Ibid (n 33).

14. In Mbuzi v Wordsworth,[42] a judge of the Federal Court considered an application for recusal on the basis that the Judge was previously employed by a firm of solicitors that had represented parties against whom the complainant had previously been involved in disputes. The complainant submitted that because he had been successful in his earlier disputes, it might be apprehended that the Judge would be motivated to avenge the firm’s defeat. The Judge declined to recuse herself and the complainant sought leave to appeal. In declining to grant leave, Moshinsky J determined that there was no logical connection between what was relied upon by the complainant and the matters that the Judge was required to decide.[43] 

    [42] [2024] FCA 977.

    [43] Ibid [31].

15. Setting aside the allegation as to ongoing communication between the Magistrate and the firm in these proceedings, there is no logical connection between the mere fact of the Magistrate’s former employment with a firm of solicitors, and the fact that the solicitors act for a party who is engaged to represent a party in proceedings before the Magistrate. The proceedings commenced after the Magistrate had left the employment of the firm. Appointment to judicial office is premised on an undertaking to decide cases on their merits.  The Magistrate was not obliged to disclose it to the parties.

16. The appellant’s submission that I should arrange an investigation into the communications between the Magistrate and firm misunderstands the scope and nature of the appeal and the powers of the Court. If credible evidence of misconduct on the part of a judicial officer is raised by a party, such issues are to be referred to those bodies with a statutory role and power to investigate such allegations. I hasten to add that there is no such credible evidence before this Court of any wrongdoing.

17. The appellant suggested that the Magistrate was aware of the respondent’s views as to the appellant’s application that was listed for directions on 5 April 2024, without having heard from the respondent. The appellant proffered this as a basis for concluding that the Magistrate may have been communicating with the respondent’s solicitors outside of the hearing room and in the absence of the appellant. I have listened to the audio recording and I find no basis for the appellant’s assertions. Approximately two thirds of the way through the hearing, the Magistrate indicated that she does not expect that the respondent would accede to the appellant’s proposals. That does not amount to support for the contention that the Magistrate had discussed those proposals with the respondent’s solicitors on some separate occasion. 

18. The test is not whether the appellant apprehends bias but whether the reasonable observer might apprehend that the Magistrate might be biased. In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[44] Gleeson J said at [249]-[256]:

    [44] Ibid (n 33).

    The fair-minded lay observer is a construct that is intended to maintain public confidence in the administration of justice and rejects any assumption that the public will accept the subjective opinion of a judge as to whether there is a reasonable apprehension of bias affecting that judge. This assumption is rejected because the public is not assumed to believe that a judge is necessarily the personification of a reasonable person.

    The construct of the fair-minded lay observer is aimed at precluding a judge from making a subjective or idiosyncratic assessment of a claim of apprehended bias, and in particular an assessment that is predicated upon an "unrealistic knowledge and understanding of the culture and traditions of the legal profession" or "insider's blindness". Public confidence in the judiciary is not advanced by attributing to the fair-minded lay observer knowledge that ordinary experience suggests would not be known by the lay observer.

    Accordingly, the fair-minded lay observer will not have a detailed understanding of precise ethical rules applying to judges, nor the ethical rules that applied to the relevant judge's prior conduct (such as while acting as counsel). Nor will the fair-minded lay observer know the personal characteristics, experience or expertise of the judge, except to the extent that those matters form part of the material objective facts upon which the claim of apprehended bias is to be decided. However, the fair-minded lay observer is attributed a knowledge of the actual circumstances of the case. Further:

    "[b]eing reasonable and fair-minded, the [fair-minded lay observer], before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances".

    From this description, it is apparent that it is difficult to decide the knowledge to be attributed to the fair-minded lay observer. Further difficulties concern the reasoning processes of the fair-minded lay observer. It has been suggested that the fair-minded lay observer (or at least the British equivalent) is "a paragon of balance, virtue and wisdom". Being fair-minded, the lay observer does not merely reflect public - , nor do they form an opinion based on matters of general impression.

    The fair-minded lay observer is expected to make a judgement "in the context of ordinary judicial practice" and is capable of taking into account "the exigencies of modern litigation"^.

    However, probably the most important assumption to be challenged by a judge in adopting the perspective of the fair-minded lay observer is that their experience as a "professional judge whose training, tradition and oath or affirmation require [them] to discard the irrelevant, the immaterial and the prejudicial” produces the result that they are "more able than others to resist the likelihood of bias". The fair-minded lay observer accepts that a judge has that experience, but will be aware that it should not be given undue weight. They will also "be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality".

    The construct of the fair-minded lay observer does not deny "the reality that it is the assessment of the court dealing with a claim of apparent bias that determines that claim". In any event, a critical disposition and a cognition of human frailty are points that the fair-minded lay observer and a judge will ordinarily have in common. Both can be expected to be sensitive to the position of the actual party who makes a claim of apprehended bias. Neither can reasonably be taken to think that deference to the judiciary is ingrained in the Australian community. Both can be expected to be cognisant of the possibility of unconscious bias in a judge: Australian judges are now educated on the topic. Both are generally expected to strike an "appropriate balance between on the one hand complacency and naivety and on the other cynicism and suspicion". In these ways, the fair-minded lay observer construct will not necessarily require the fair-minded judge to adopt a perspective very different from their own. The chief differences between them are that the fair-minded lay observer does not rely on matters that may be known or believed by a judge but not known or believed by a member of the public, and is assumed to avoid "the risk of having the insider's blindness to the faults that outsiders can so easily see".

    The fair-minded lay observer will appreciate that the mere fact that a judge, as a barrister, had some connection with parties who come before him or her does not necessarily attract such a reasonable apprehension as to require the judge to disqualify himself or herself. In considering whether a previous connection, with a party or between a judge's involvement in two proceedings, creates the requisite "logical connection" for the purposes of the Ebner framework, the observer will consider all features of the connection, including the nature, duration, intensity and proximity of the association between judge and party. Relevant factors include: (1) whether the correctness or appropriateness of a decision taken in earlier litigation by the judge, then counsel, is in issue in the case assigned to the judge, so that the judge is effectively being asked to evaluate their own prior conduct; (2) the commonality of facts, evidence and remedies between the earlier litigation and the case assigned to the judge; (3) the passage of time between the earlier litigation and the case assigned to the judge; and (4) any commonality between the parties to the earlier litigation and the case assigned to the judge.

19. Bearing those statements in mind, the appellant has not established that apprehended bias should be inferred from the Magistrate’s failure to advise the appellant that she was a former employee of the solicitors for the respondent, or that the Magistrate’s former association with the firm gave rise to an automatic apprehension of bias. 

20. This ground of appeal fails.

    Accordingly, the Court’s conclusions are that:

21. The appeal is not competent.

22. If the appeal is competent, leave is refused because:

    ·the appellant did not demonstrate she had reasonable prospect of establishing error in the Magistrate’s reasons for declining to recuse herself;

    ·the appellant did not demonstrate that the Magistrate’s conduct during the interlocutory stages of the action and in particular on 5 April 2024 gave rise to a reasonable apprehension of bias, or supported a conclusion of actual bias; and

    ·the appellant did not demonstrate that she had an arguable case that the Magistrate should have disqualified herself in respect of her relationship with the respondent’s solicitors, and did not demonstrate that the Magistrate had had dealings with the respondent’s solicitors with respect to the proceedings.

23. The appeal is dismissed.