Hillier v Martin (No 19)

Case [2024] FCA 210

FEDERAL COURT OF AUSTRALIA

Hillier v Martin (No 19) [2024] FCA 210

File number(s): SAD 113 of 2020
Judgment of: O'SULLIVAN J
Date of judgment: 8 March 2024
Catchwords:

EVIDENCE – Legal Professional Privilege – where fourth to sixth respondents claimed various documents to be subject to legal professional privilege on behalf of the first respondent – whether by reason of an iniquity the documents have either had privilege displaced or never attracted the privilege in the first place – whether there is prima facie evidence of iniquity – order made for production of documents and inspection

PRACTICE AND PROCEDURE – application for an order that the presiding judge be recused on the grounds of both actual and apprehended bias – first respondent alleging bias on the basis that the presiding judge had previously heard and issued a decision on an interlocutory application involving the applicant in another Court – where no factual findings were made in that decision – no cogent (or any) evidence of actual bias – no material identified such that a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide – application dismissed
Legislation:

Competition and Consumer Act 2010 (Cth), Sch 2 Australian Consumer Law, ss 237, 243

Evidence Act 1995 (Cth), ss 55, 118, 119

Federal Court of Australia Act 1976 (Cth), ss 35A(7)(b), 37M(1), 37N(1), 37N(4), 51A

Federal Court Rules 2011 (Cth), r 20.17(2)(c)

Trustee Act 1936 (SA)
Cases cited:

AKS Investments Pty Ltd v Queensland Police Service [2018] QSC 4

Attorney-General (N T) v Maurice [1986] HCA 80; (1986) 161 CLR 475

Attorney-General for the Northern Territory of Australia v Kearney [1985] HCA 60; (1985) 158 CLR 500

AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382

Bullivant v Attorney-General (Vict) [1901] AC 196

Carter v Managing Partner, Northmore Hale Davy & Leake [1995] HCA 33; (1995) 183 CLR 121

Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289

Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501

Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd (2005) 225 ALR 266, 279

Craig & Ors v Hillier & Ors [2018] SADC 114

Crescent Farm (Sidcup) Sports Ltd. v. Sterling Offices Ltd. [1972] Ch. 553

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337

ESSO Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49

Grant v Downs [1976] HCA 63; (1976) 135 CLR 674

Hillier v Martin (No 2) [2021] FCA 509

Hillier v Martin (No 11) [2022) FCA 407

Hillier v Martin(No 12) [2022] FCA 952

Hillier v Martin (No 13) [2022] FCA 939

Hillier v Martin (No 15) [2022] FCA 996

KadlungaProprietors v Electricity Trust of South Australia (1985) 39 SASR 410

Martin v Hillier [2021] FCA 800

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AGLC
Hillier v Martin (No 19) [2024] FCA 210
Case
[2024] FCA 210
Decision Date

CaseChat Overview and Summary

In Hillier v Martin (No 19), the Federal Court of Australia addressed two main applications: one concerning the recusal of the presiding judge and another challenging the claim of legal professional privilege (LPP) over approximately 7,000 documents. The recusal application was based on an interlocutory decision made by the same judge in a previous case involving the applicant, while the LPP challenge was grounded on the notion of "iniquity". The court found no evidence of actual bias in the recusal application and dismissed it, noting that the previous decision did not involve factual findings pertinent to the current case. Regarding the LPP application, the court concluded that the claimed privilege over the documents was not valid due to the alleged iniquity, ordering their production for inspection.

The court's reasoning in the recusal application hinged on the lack of evidence suggesting actual bias or any prejudicial extraneous information that could reasonably lead to an apprehension of bias. The judge's previous decision in the interlocutory application was deemed unrelated to the current proceedings, thus not affecting the impartiality required for the trial. The court also highlighted procedural inefficiencies caused by the last-minute request to transfer the LPP application from a registrar to a judge, which delayed the hearing and necessitated the vacating of the trial date.

On the LPP challenge, the court focused on the doctrine of iniquity, which allows for the displacement of privilege if the circumstances surrounding the creation of the privileged documents are such that they should not be protected. The court found that the documents in question, which were part of a larger set known as the "William Buck Brief", were not protected by LPP due to the circumstances under which they were created. This decision allowed the documents to be produced for inspection by the applicant’s legal team before the trial.

Orders

Orders of the court

THE COURT ORDERS THAT:

Legal professional privilege application

1. The documents identified in the Lists of Documents served on the applicant by his solicitor by the fourth, fifth and sixth respondents on 2 June 2023 as being the subject of a claim to legal professional privilege in favour of the first respondent (and any entity or entities simply described therein as Nordburger) are not the subject of legal professional privilege.

2. The first, fourth, fifth and sixth respondents are to produce for inspection by the applicant, those documents asserted in the Lists of Documents referred in order 1 herein as being subject to a claim to legal professional privilege, forthwith.

3. Subject to order 4, the fourth, fifth and sixth respondents are to pay the costs of and incidental to the applicant’s application filed 18 August 2023, such costs to be agreed or taxed.

4. The fourth, fifth and sixth respondents have liberty to apply within seven days of the date of publication of these reasons for any variation to the order for costs made in order 3 herein.

Recusal application

5. The first respondent’s recusal application filed 24 November 2023 is dismissed.

Background

Background to the litigation

At a case management hearing on 7 February 2024, I delivered my decision on the Recusal application in which I dismissed the application and indicated I would publish reasons for doing so. These are those reasons.PROCEDURAL BACKGROUND Regrettably, it is necessary to set out the procedural history to these two applications. Ms Martin is unrepresented in this matter and has not attended, nor been represented, at any case management hearing or any other type of hearing since I was allocated this matter on 1 September 2022. The second respondent, Nordburger Operations Pty Ltd, is also unrepresented and has not appeared at any case management hearing since November 2022. Operations is a company which has as its sole director Thomas Patrick Martin (Mr Martin) who is the husband of Ms Martin. Prior applications made by Mr Martin, who is legally qualified and a potential witness, for him to represent Operations have been refused. Ms Martin is Mr Hillier’s sister. At a case management hearing held on 3 August 2023, Mr Hillier foreshadowed an interlocutory application challenging the claim by the NW Parties on behalf of Ms Martin to legal professional privilege in respect of approximately 7000 discovered documents. The challenge to the claim to legal professional privilege was indicated by Mr Hillier as being based on iniquity. Accordingly, it was never contended that it would be necessary for anyone to inspect the approximately 7000 documents. Since I had no availability to hear any interlocutory application prior to the commencement of the 5 week trial in this matter listed to commence on 23 October 2023, I referred any interlocutory application challenging the claim to legal professional privilege for hearing and determination by a Registrar of this Court. I also ordered that a copy of the transcript be made available to Ms Martin. That transcript recorded my unavailability to hear any interlocutory application prior to trial. On 15 August 2023, Mr Hillier filed the LPP application in which he challenged the claim to legal professional privilege on the grounds of iniquity. On 22 August 2023, the Registrar of this Court to whom the LPP interlocutory application had been assigned, held a case management hearing at which time Ms Martin did not attend. The Registrar listed the LPP application for hearing on 6 September 2023 at 2.15pm (AEST). Approximately 45 minutes before the hearing on 6 September 2023 was due to commence, Ms Martin applied by email, pursuant to s 35A(7)(b) of the Federal Court of Australia Act 1976 (Cth), for the LPP application to be heard by a judge of the Court. That being the case, the Registrar was unable to hear the interlocutory application. It is not apparent why Ms Martin waited until approximately 45 minutes prior to the hearing before the Registrar was due to commence before making her request that the matter be heard by a judge and no explanation has been proferred by her. In any event, the application by Ms Martin that a judge hear the LPP application had (at least) three consequences:(1)First, since no other judge of the Court was available to hear the LPP application it was not until I became available in the week commencing 16 October 2023 that the LPP application could be heard;(2)Second, if Mr Hillier was successful on the LPP application it would not be possible for his solicitor and counsel to inspect any of the approximately 7000 documents over which legal professional privilege has been claimed prior to trial; and(3)Third, the inevitable consequence was that the trial listed to commence on 23 October 2023 would have to be vacated.

Evidence

Evidence Before The Court

A further submission in the reply submissions is that it is reasonable to infer that my personal knowledge extends to matters concerning “relevant evidence” pursuant to s 55 of the Evidence Act 1995 (Cth). Section 55 of the Evidence Act provides:55 Relevant evidence(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.(2)In particular, evidence is not taken to be irrelevant only because it relates only to:(a)the credibility of a witness; or(b)the admissibility of other evidence; or(c)a failure to adduce evidence. It is apparent from s 55 that evidence is relevant, if accepted, if that evidence could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding. Ms Martin submits that the evidence includes “without limitation the appearance, submissions, demeanour and effectiveness of counsel and solicitors, the presence of various persons in the court room (sic) and the apparent source of instructions for the applicant’s lawyers” and that as a result I am a competent witness. I do not accept that submission. The allegation in these proceedings is not the manner in which the litigation was conducted but the fact it was conducted and whether that was as a result of the events of the 29 April 2016 meeting and the Deed Poll. In particular, there is no criticism in the pleadings of how the District Court proceedings were defended but rather the fact that Mr Hillier considered he had no option but to defend them because of the Deed Poll. It follows that the suggestion that I am a competent witness is untenable. In his submissions, Mr Hillier refers to the four categories grounding a recusal application cited by Deane J in Webb at p 74 and applied in Ebner at [24]. Mr Hillier submits that the only category identified in Webb relied upon by Ms Martin in her primary submissions is the fourth category, ie, extraneous information. In Webb, in the passage to which I have referred, Deane J describes this fourth category as:The fourth is disqualification by extraneous information. It will commonly overlap the third and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias. Mr Hillier submits that Ms Martin had not identified any particular information arising from or out of the conduct of the District Court proceedings which is said to be prejudicial or inadmissible which might give rise to a relevant apprehension of bias. So too, insofar as Ms Martin refers to the Cherry Hospitality and Ace Up The Sleeve proceedings, there is nothing identified by Ms Martin nor any particular information acquired by me in the course of my limited involvement in those proceedings that has any relevance to the within proceedings. Ms Martin identifies no knowledge of prejudicial but inadmissible facts or circumstances sufficient to give rise to the apprehension of bias.

Decision

Reasons for decision

The Recusal application is based on an interlocutory decision I delivered on 14 November 2018 when presiding as a Judge of the District Court of South Australia over an interlocutory application in the matter of Craig & Ors v Hillier & Ors [2018] SADC 114. The plaintiffs were Mr Craig’s parents, Robert and Judith Craig, together with a corporate third plaintiff. Mr Hillier was the first defendant. The second defendant was a corporate defendant. There were two named third parties, Mr Craig as the first third party and William Buck SA Pty Ltd, a firm of accountants as the second third party, notwithstanding it had not yet been joined as a third party to the proceedings. Ms Martin is named on the interlocutory decision as a non-party and was represented on the argument before me by counsel instructed by Norman Waterhouse. The proceedings were a loan recovery claim commenced on 31 March 2017. It was alleged by the plaintiffs that Mr Hillier and the second defendant had obtained loans from the plaintiffs through the intermediary of Mr Craig, a member of William Buck. I did not hear the trial of the action and I note from the pleadings in this matter that the matter settled. I have no independent recollection of the application but from reading the judgment, there were three interlocutory applications before the Court, the first by the plaintiffs which was a challenge to the defendants’ claim for common interest privilege. The remaining two interlocutory applications were brought by the defendants. The first of those two interlocutory applications were for dismissal of the proceedings as an abuse of process or in the alternative striking out the statement of claim as an abuse of process. The second of the two interlocutory applications sought leave to file an amended pleading against a third party as well as joinder of William Buck to the proceedings. The second interlocutory application was stood over. I do not know if it was ever argued but if it was, it was not before me. The documents over which the plaintiffs sought production, and thereby challenged the claim to legal professional privilege by the defendants comprised what is known in both the District Court proceedings and in these proceedings as the William Buck Brief. The William Buck Brief is not the subject of the LPP application in these proceedings. The argument proceeded on affidavits. No deponents gave oral evidence or were cross-examined. After hearing argument, I prepared written reasons for the decision in which I upheld the claims by Mr Hillier and Ms Martin for legal professional privilege over the William Buck Brief. Mr Williams swore what is referred to in the decision as the second Williams affidavit as to the preparation of the William Buck Brief on the instructions of Ms Martin. At [20]-[29] of the reasons, I set out the history of the preparation of the William Buck Brief as deposed to by Mr Williams in the second Williams affidavit and the provision of the William Buck Brief to the then managing partner of William Buck, Mr McKeough. Within this passage, I also set out what Mr Williams had deposed to in relation to what occurred at a meeting on 29 April 2016. That is the meeting the subject of pleadings in this case.

Ratio Decidendi

Legal Principle Established

Ms Martin is unrepresented in this matter and has not attended, nor been represented, at any case management hearing or any other type of hearing since I was allocated this matter on 1 September 2022. The second respondent, Nordburger Operations Pty Ltd, is also unrepresented and has not appeared at any case management hearing since November 2022. Operations is a company which has as its sole director Thomas Patrick Martin (Mr Martin) who is the husband of Ms Martin. Prior applications made by Mr Martin, who is legally qualified and a potential witness, for him to represent Operations have been refused. Ms Martin is Mr Hillier’s sister. At a case management hearing held on 3 August 2023, Mr Hillier foreshadowed an interlocutory application challenging the claim by the NW Parties on behalf of Ms Martin to legal professional privilege in respect of approximately 7000 discovered documents. The challenge to the claim to legal professional privilege was indicated by Mr Hillier as being based on iniquity. Accordingly, it was never contended that it would be necessary for anyone to inspect the approximately 7000 documents. Since I had no availability to hear any interlocutory application prior to the commencement of the 5 week trial in this matter listed to commence on 23 October 2023, I referred any interlocutory application challenging the claim to legal professional privilege for hearing and determination by a Registrar of this Court. I also ordered that a copy of the transcript be made available to Ms Martin. That transcript recorded my unavailability to hear any interlocutory application prior to trial. On 15 August 2023, Mr Hillier filed the LPP application in which he challenged the claim to legal professional privilege on the grounds of iniquity. On 22 August 2023, the Registrar of this Court to whom the LPP interlocutory application had been assigned, held a case management hearing at which time Ms Martin did not attend. The Registrar listed the LPP application for hearing on 6 September 2023 at 2.15pm (AEST). Approximately 45 minutes before the hearing on 6 September 2023 was due to commence, Ms Martin applied by email, pursuant to s 35A(7)(b) of the Federal Court of Australia Act 1976 (Cth), for the LPP application to be heard by a judge of the Court. That being the case, the Registrar was unable to hear the interlocutory application. It is not apparent why Ms Martin waited until approximately 45 minutes prior to the hearing before the Registrar was due to commence before making her request that the matter be heard by a judge and no explanation has been proferred by her. In any event, the application by Ms Martin that a judge hear the LPP application had (at least) three consequences:(1)First, since no other judge of the Court was available to hear the LPP application it was not until I became available in the week commencing 16 October 2023 that the LPP application could be heard;(2)Second, if Mr Hillier was successful on the LPP application it would not be possible for his solicitor and counsel to inspect any of the approximately 7000 documents over which legal professional privilege has been claimed prior to trial; and(3)Third, the inevitable consequence was that the trial listed to commence on 23 October 2023 would have to be vacated.