Hillier v Martin (No 2)

Case [2021] FCA 509

FEDERAL COURT OF AUSTRALIA

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

File number: SAD 113 of 2020
Judgment of: CHARLESWORTH J
Date of judgment: 12 May 2021
Catchwords: PRACTICE AND PROCEDURE – application for disqualification on grounds of apprehended bias – presiding judge having access to extraneous materials – extraneous materials subject to a claim of legal professional privilege of a non-party – extraneous materials said to be directly relevant to facts to be determined in the proceedings and otherwise affecting the assessment of the credibility of a critical witness – whether a fair-minded observer might reasonably apprehend that the presiding judge might not bring an impartial mind to the determination of the issues – consideration of the knowledge to be attributed to the fair-minded observer in the application of the test for apprehended bias – relevance of delay in bringing the disqualification application – whether facts relied upon in support of the application were known to the respondent – whether the respondent’s right to bring the application has been waived by virtue of the delay
Legislation:

Fair Work Act 2009 (Cth)

Trustee Act 1936 (SA)

Cases cited:

AAL19 v Minister for Home Affairs (2020) 277 FCR 393

ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30

Attorney-General (NT) v Kearney (1985) 158 CLR 500

Burgess v Minister for Immigration and Border Protection (2018) 259 FCR 197

Ebner v Offıcial Trustee in Bankruptcy (2000) 205 CLR 337

Forbes v Petbarn [2018] FCA 256

Hillier v Martin [2021] FCA 269

Home Office v Harman [1983] 1 AC 280

Isbester v Knox City Council (2015) 255 CLR 135

Johnson v Johnson (2000) 201 CLR 488

Livesey v New South Wales Bar Association (1983) 151 CLR 288

Martin v Norton Rose Fulbright Australia (No 2) [2019] FCA 96

Martin v Norton Rose Fulbright Australia (No 2) [2020] FCAFA 42

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 [2021] FCAFC 24

Vakauta v Kelly (1989) 167 CLR 568

Division: General Division
Registry: South Australia
National Practice Area: Commercial and Corporations
Sub-area: Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs: 72
Date of hearing: 30 March and 11 May 2021
Counsel for the Applicant: Mr D O’Leary
Solicitor for the Applicant: Sykes Bidstrup
Counsel for the Respondent: Mr R Cameron
Solicitor for the Respondent: Norman Waterhouse

ORDERS

SAD 113 of 2020
BETWEEN:

JAMES HILLIER

Applicant
AND:

VICTORIA MARTIN

Respondent

ORDER MADE BY:

CHARLESWORTH J

DATE OF ORDER:

12 MAY 2021

THE COURT ORDERS THAT:

1.The respondent’s application for an order in terms of paragraph 3 of the interlocutory application dated 26 March 2021 is dismissed.

2.There be a further case management hearing on a date to be fixed not earlier than 17 May 2021.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

CHARLESWORTH J

  1. The applicant and respondent in these proceedings are brother and sister respectively.  The suit relates to the ownership and conduct of a…

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AGLC
Hillier v Martin (No 2) [2021] FCA 509
Case
[2021] FCA 509
Decision Date

CaseChat Overview and Summary

In Hillier v Martin (No 2), the applicant sought the disqualification of a judge on grounds of apprehended bias. The matter was before the court on an application for interlocutory relief. The applicant argued that the judge had access to extraneous materials that were subject to a claim of legal professional privilege by a non-party and were directly relevant to the facts to be determined in the proceedings, and therefore affected the assessment of a critical witness’s credibility. The applicant contended that a fair-minded observer might reasonably apprehend that the judge might not bring an impartial mind to the determination of the issues.

The court was required to determine whether there was a logical connection between the circumstances identified and the feared deviation from the course of deciding the case on its merits. The court also had to consider the knowledge to be attributed to the fair-minded observer in the application of the test for apprehended bias. Additionally, the court needed to determine whether the facts relied upon in support of the application were known to the respondent and whether the respondent’s right to bring the application had been waived by virtue of the delay.

The court dismissed the application for disqualification. In doing so, the court found that the applicant had not established that there was a logical connection between the circumstances and the feared deviation from the course of deciding the case on its merits. The court also found that the fair-minded observer must be taken to know the issues that arise in the respective proceedings and knowledge of the fact that in determining a previous application the judge had access to documents over which a claim for legal professional privilege was made. The court further found that the delay in bringing the disqualification application and the respondent’s knowledge of the facts relied upon in support of the application did not waive the respondent’s right to bring the application.

The court ordered that the respondent’s application for an order in terms of paragraph 3 of the interlocutory application dated 26 March 2021 was dismissed and that there be a further case management hearing on a date to be fixed not earlier than 17 May 2021.

Orders

Orders of the court

1. The respondent’s application for an order in terms of paragraph 3 of the interlocutory application dated 26 March 2021 is dismissed.

2. There be a further case management hearing on a date to be fixed not earlier than 17 May 2021.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

There must be a “logical connection” between the identified circumstance and the “feared deviation from the course of deciding the case on its merits”: Ebner at [8]; Isbester at [21].SUBMISSIONS AND EVIDENCE The respondent relies upon an affidavit affirmed by Mr Martin on 30 March 2021. The affidavit deposes to facts relating to the proceedings between him and NRFA. It also contains material in the nature of submissions in connection with the recusal application and has been read for both purposes. Counsel for the respondent’s submissions on the application were interrupted by an application made without notice by Mr Martin himself. Mr Martin asserted that he had “standing” to be heard on the recusal application and to make submissions on the merits of the application on his own behalf. Mr Martin submitted that he had interests in the outcome of the proceedings as the beneficiary and appointer of a trust which is said to hold the assets of the Nordburger business. He submitted that he had “standing” in the proceedings by virtue of a number of provisions of the Trustee Act, without going to far as to say that he ought properly to be joined as a party. I did not consider it convenient to determine whether Mr Martin was entitled to make an application for recusal in a proceeding, to which he is not a party. Rather, in my discretion, I granted Mr Martin an audience in respect of matters relevant to the respondent’s application provided that the submissions were not repetitive of that which had already been said in his affidavit and that which had already been advanced by the respondent’s counsel. My references in these reasons to the respondent’s submissions may be taken to subsume what was said by Mr Martin. I have otherwise drawn no conclusion as to whether Mr Martin has a general right of audience in these proceedings for all purposes.ASSERTED BASES FOR RECUSAL Broadly summarised, there are two asserted bases for recusal. First, it is submitted that there is a commonality of issues as between these proceedings and the proceedings involving NRFA, with the result that I have read documents that are directly relevant to the determination of issues in this action to which the parties to these proceedings have no access. I will refer to that as the commonality issue. Second, it is submitted that the documents I have inspected contain statements that are relevant to my assessment of Mr Martin’s credit as a witness. I will refer to that as the credibility issue.FACTUAL CIRCUMSTANCES KNOWN TO THE LAY OBSERVER The present case is not founded upon impugned conduct on the part of a presiding judge, but rather upon the asserted possession of knowledge by the judge to which neither party can have access. The circumstances give rise to a question as to what knowledge the fair-minded observer must be taken to have about the extraneous information that has been accessed and retained by the presiding judge. The fair-minded observer must of course be taken to know the issues that arise in the respective proceedings and knowledge of the fact that in determining the NRFA application I had access to documents over which a claim for legal professional privilege was made and to which the parties in this action do not have access. The list of those documents (including brief descriptions of them) is in evidence before me on this application. The fair-minded observer may be taken to know the document descriptions.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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