Hillier v Martin (No 20)
[2023] FCA 1686
•18 October 2023
FEDERAL COURT OF AUSTRALIA
Hillier v Martin (No 20) [2023] FCA 1686
File number(s): SAD 113 of 2020 Judgment of: O'SULLIVAN J Date of judgment: 18 October 2023 Date of publication of reasons: 3 May 2024 Catchwords: PRACTICE AND PROCEDURE – Request in affidavit filed by first respondent on 18 October 2023 to vacate hearing date — contention in the affidavit that judge should recuse himself — no appearance at the hearing by the first respondent — whether fair minded observer might reasonably apprehend that judge might not bring an impartial mind to the hearing of proceeding — whether logical connection is established — request to vacate hearing refused — contention judge should recuse himself declined Legislation: Federal Court of Australia Act 1976 (Cth), ss 35A(7)(b), 37N(1) Division: General Division Registry: South Australia National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 26 Dates of hearings: 18 October 2023 Counsel for the Applicant: Mr R Whitington KC with Ms H Doyle Solicitor for the Applicant: Sykes Bidstrup Counsel for the First and Second Respondents: No appearance Counsel for the Third Respondent: No appearance Counsel for the Fourth, Fifth and Sixth Respondents: Mr D Blight KC with Mr T Kentish Solicitor for the Fourth, Fifth and Sixth Respondents: Gilchrist Connell ORDERS
SAD 113 of 2020 BETWEEN: JAMES HILLIER
Applicant
AND: VICTORIA MARTIN
First Respondent
NORDBURGER OPERATIONS PTY LTD
Second Respondent
ERIK VARI PTY LTD (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
O'SULLIVAN J
DATE OF ORDER:
18 OCTOBER 2023
THE COURT NOTES:
A.The first respondent has lodged an affidavit at 8.19am this day which was accepted for filing at 8.26am this day in which she:
a.Requested today’s hearing be vacated; and
b.Contended I should recuse myself.
B.The first respondent has not appeared today.
THE COURT ORDERS THAT:
1.The first respondent’s request that today’s hearing be vacated is refused.
2.The first respondent’s contention that I should recuse myself is declined.
3.The hearing of the interlocutory application dated 15 August 2023 is adjourned part-heard to 10.30am (ACDT) on Wednesday 25 October 2023.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT (ex tempore)
O’SULLIVAN J:
The first respondent is unrepresented in this matter and has not appeared in any case management hearing for a considerable period of time. The second respondent has not appeared since mid-2022. At a case management hearing held on 3 August 2023, at which neither the first nor the second respondent appeared, the applicant foreshadowed an interlocutory application challenging claims of the first and second respondents to legal professional privilege in respect of discovered documents. I made orders on that occasion referring any interlocutory application challenging the first and second respondents’ claims to legal professional privilege for hearing and determination by a Registrar of the Court.
In addition, I ordered that a copy of the transcript be made available to the first and second respondents. That transcript recorded that I had no availability to hear any application such as that prior to the commencement of the trial, which at that stage was listed to commence on 23 October 2023.
On 15 August 2023, the applicant filed its interlocutory application.
On 22 August 2023, Registrar Ellis, to whom the applicant’s interlocutory application challenging the first and second respondents’ claims to legal professional privilege had been assigned, held a case management hearing at which time the first respondent did not attend. Registrar Ellis listed the interlocutory application for hearing on 6 September 2023 at 2.15pm (AEST).
Shortly before the hearing before Registrar Ellis on 6 September 2023, the first respondent applied, pursuant to s 35A(7)(b) of the Federal Court of Australia Act 1976 (Cth) (Act), for the interlocutory application to be heard by a judge of the Court. That being the case, the Registrar was unable to hear the interlocutory application.
The application by the first respondent had at least three consequences. First, the interlocutory application challenging the first and second respondents’ claims to legal professional privilege over documents could not be heard by me or another judge of the Court until the week commencing 16 October 2023. Second, if the applicant was successful in his interlocutory application, it would not be possible to inspect documents over which legal professional privilege had been claimed prior to trial, and third, the inevitable consequence was that the trial listed to commence on 23 October 2023 would have to be vacated.
So it was that it came to pass the trial listed to commence on 23 October 2023 was vacated. Against that background, on 12 September 2023 I listed the hearing of the interlocutory application before me for today, being 18 October 2023.
There was no appearance by the first or second respondents at this hearing today.
Section 37M of the Act provides, amongst other things, that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible. The overarching purpose includes a number of objectives including the efficient use of judicial time and administrative resources available for the purposes of the Court, the disposal of all proceedings in a timely manner, and the resolution of disputes at a cost which is proportionate to the importance and complexity of the matters in dispute.
Section 37N(1) of the Act imposes upon the parties to a civil proceeding before the Court an obligation to conduct the proceeding in a way that is consistent with the overarching purpose. It provides that in exercising the discretion to award costs in a civil proceeding, a Court or a judge must take account of any failure to comply with a duty imposed by subsection (1).
No explanation has been provided as to why it is that the first respondent required the interlocutory application to be heard and determined by a judge of the Court in circumstances where it was apparent from the transcript of the case management hearing held on 3 August 2023, which as I have noted was provided to both the first and second respondents, that at least I as the docket judge and trial judge would be unable to hear the interlocutory application in sufficient time to allow the trial to proceed.
Consistent with what might fairly be described as the first respondent’s “last-minute” approach in this matter, this morning the first respondent has filed an affidavit in which she seeks that the hearing today be vacated. I have considered that affidavit and heard submissions from counsel.
There is no formal interlocutory application before me to vacate today’s hearing, whether written or oral, and as I have noted there was no appearance by the first or second respondents at today’s hearing.
It is clear the affidavit has been prepared by someone with legal training. As I have noted, the first respondent is unrepresented, although her husband, Thomas Martin, is a legal practitioner with experience in litigation. Mr Martin is a Director of the second respondent and has previously applied for leave to represent the second respondent in this matter, which leave has been refused by me and other judges of the Court.
I am unaware as to whether Mr Martin currently holds a practicing certificate.
The first respondent deposes in her affidavit as to her inability to attend today due to her need to attend to her caring responsibilities for her two young sons, the oldest of whom attends school in the city. Whereas I am acutely aware of family obligations that may be imposed upon a party, including any health issues those children may have, this matter was listed for hearing today by orders made on 12 September 2023, some five weeks ago. Notwithstanding any family obligations, that was more than sufficient time for alternative arrangements to be made.
A further reason given by the first respondent is cited as being her lack of skill and experience in both the law generally and courtroom advocacy. That may be so, but the first respondent is in no different position to many of the litigants that appear before this Court.
In her affidavit, the first respondent also deposes that she did not consider it appropriate for me to hear the interlocutory application for the production of documents over which legal professional privilege is claimed in circumstances where I heard a similar application in 2018 whilst I was a judge of the District Court of South Australia.
As no basis is put forward as to why that might be the case, and I have little to no recollection of the argument, I see no basis why I should not hear this interlocutory application against the background of the pleadings in this matter.
There are other matters raised in the affidavit. Mr Whitington KC has addressed the matters and I accept those submissions. The first respondent’s request that today’s hearing be vacated is refused.
Insofar as an application is made that I recuse myself, I decline to do so.
During the course of today’s hearing the first respondent emailed submissions to the Court.
That is contrary to the Court’s orders dated 12 September 2023 giving the first and second respondents until 2 October 2023 to file and serve an outline of submissions and any affidavits in reply. Nothing was received. The first respondent is in clear breach of the Court’s orders and I decline to consider the submissions.
The non-appearance at today’s hearing of the first respondent in circumstances where an application was made by the first respondent for the interlocutory application to be heard by a judge of the Court demonstrates not only gross discourtesy to the Court, but on the face of it what can only be described as a clear breach of the first respondent’s obligations under s 37N of the Act.
I note that the first respondent’s conduct may well have cost implications depending on the outcome of this interlocutory application, not only in relation to this interlocutory application, but any costs thrown away as a result of the need to adjourn the trial.
I of course have no fixed view on those issues at this point in time and I merely note it.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan. Associate:
Dated: 18 October 2023
SCHEDULE OF PARTIES
SAD 113 of 2020 Respondents
Fourth Respondent:
STEPHEN BRADLEY WILLIAMS
Fifth Respondent:
NORMAN WATERHOUSE (A FIRM)
Sixth Respondent:
NORMAN WATERHOUSE LAWYERS PTY LTD
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