Hillier v Martin (No 9)

Case [2021] FCA 1319

FEDERAL COURT OF AUSTRALIA

Hillier v Martin (No 9) [2021] FCA 1319  

File number: SAD 113 of 2020
Judgment of: CHARLESWORTH J
Date of judgment: 19 October 2021
Date of publication of reasons: 27 October 2021
Catchwords: PRACTICE AND PROCEDURE – application for an order that the presiding Judge be recused on the grounds of apprehended bias – recusal applicant alleging professional connections between presiding Judge and Counsel for another party – recusal applicant alleging the presiding Judge and Counsel share a mutual close friend – recusal applicant alleging wrongdoing against Counsel – recusal applicant alleging apprehended bias based on the Court’s constraint in responding to the allegations of wrongdoing – consideration of the principles discussed in Charisteas v Charisteas [2021] HCA 29 – application dismissed
Cases cited:

Ambrose v Badcock [2021] FCA 881

Charisteas v Charisteas [2021] HCA 29

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

Hillier v Martin [2021] FCA 269

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

Hillier v Martin (No 3) [2021] FCA 709

Hillier v Martin (No 4) [2021] FCA 710

Hillier v Martin (No 5) [2021] FCA 949

Hillier v Martin (No 6) [2021] FCA 1009

Hillier v Martin (No 7) [2021] FCA 1221

Hillier v Martin (No 8) [2021] FCA 1272

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: 55
Date of hearing: 19 October 2021
Counsel for the Applicant: Mr D O’Leary
Solicitor for the Applicant: Sykes Bidstrup
Counsel for the First Respondent: Mr S Ower SC
Solicitor for the First Respondent: Norman Waterhouse
Counsel for the Second Respondent: Mr T Martin
Counsel for the Third Respondent: Ms L Crosby
Solicitor for the Third Respondent: Kain Lawyers

ORDERS

SAD 113 of 2020
BETWEEN:

JAMES HILLIER

Applicant
AND:

VICTORIA MARTIN

First Respondent

NORDBURGER OPERATIONS PTY LTD

Second Respondent

ERIK VARI PTY LTD

Third Respondent

ORDER MADE BY:

CHARLESWORTH J

DATE OF ORDER:

19 OCTOBER 2021

THE COURT ORDERS THAT:

1.The second respondent’s oral application for an order that the presiding Judge be disqualified is dismissed.

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


REASONS FOR JUDGMENT

CHARLESWORTH J

  1. On 19 October 2021 I made an order dismissing an oral application for an order that I recuse myself from further presiding in this proceeding (recusal application).  Reasons for dismissing the recusal application were delivered orally.  The parties were informed that the reasons were incomplete.  The parties were informed that written reasons would be prepared and published at the earliest opportunity and that the parties could expect the written reasons to be more expansive than those which had been delivered orally.  The time to make an application for leave to appeal from the order has been extended to accommodate the short delay in publishing these written reasons.

  2. These proceedings were commenced in August 2020.  From their commencement, the applicant has been…

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AGLC
Hillier v Martin (No 9) [2021] FCA 1319
Case
[2021] FCA 1319
Decision Date

CaseChat Overview and Summary

In the case of Hillier v Martin (No 9), Mr Martin sought an order for the presiding Judge to be recused from the proceedings on the grounds of apprehended bias. The basis for the application was the relationship between the presiding Judge and the applicant’s Senior Counsel, including their membership on the Adelaide University Law School Advisory Committee and their mutual close friend, a retired Judge. Mr Martin also alleged that the presiding Judge had ignored his previous submissions regarding the applicant’s Senior Counsel's conduct, suggesting an appearance of bias.

The central legal issues involved whether the disclosed professional and personal connections between the presiding Judge, the applicant’s Senior Counsel, and the retired Judge provided a proper basis for the applicant's concerns of bias. The Court had to consider whether these connections were such that they could reasonably lead to the apprehension of bias. This consideration involved applying the principles discussed in Charisteas v Charisteas, which outline the threshold for recusal based on apprehended bias.

The Court dismissed the application for recusal. The Court found that the professional and social interactions between the presiding Judge, the applicant’s Senior Counsel, and the retired Judge did not reach the level that could reasonably give rise to an apprehension of bias. The Court held that the connections were not so close or frequent as to suggest any bias. Additionally, the Court noted that the applicant had not provided any evidence of actual bias or any specific incident that would support the apprehension of bias. The Court concluded that the applicant's concerns were speculative and did not meet the threshold required to justify the recusal of the presiding Judge.

As a result, the Court dismissed the application for the presiding Judge to be disqualified from the proceedings.

Orders

Orders of the court

1. The second respondent’s oral application for an order that the presiding Judge be disqualified is dismissed.

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

Background

Background to the litigation

The second context arises in relation to the facts pleaded by the applicant in support of his claims in the substantive proceedings. Mr Martin’s position is that the allegations of fact pleaded by the applicant are known to be false by the applicant and by the applicant’s legal advisers (presumably including the applicant’s Senior Counsel). That allegation has been made at various times from the bar table, including at case management hearings. It was most recently made in a responsive written submission concerning the admissibility of evidence, and is discussed in Hillier No 8 at [109] – [111]. It is to the effect that all orders made to date in these proceedings should be vacated and the applicant and his advisers be called on to explain what Mr Martin alleges to be a fraud affecting the whole of the proceedings. The Court’s reasons in Hillier No 8 explain why the Court did not engage with the substance of the submission most recently made. As explained below, nothing in the matters raised by Mr Martin on 19 October 2021 provided a proper basis to defer delivery of that judgment.DISCLOSED FACTS At the commencement of the hearing, the Court read the whole of Mr Martin’s letter aloud. Mr Martin was then provided with information about the extent of professional and personal interaction between the presiding Judge, the applicant’s Senior Counsel and the retired Judge. Mr Martin was informed that it would not be necessary for him to adduce evidence to prove the disclosed information. The disclosed information was to the following effect:(1)The purpose of the University Committee is to enable the Adelaide University Law School to liaise with members of the legal profession and the judiciary to ensure that its curriculum and teaching methods meet the needs of the profession. The presiding Judge was appointed to the University Committee in August 2016.(2)The most recent meeting of the University Committee attended by the presiding Judge was held in November 2020. The applicant’s Senior Counsel was not in attendance at that meeting.(3)In the limited time between the receipt of Mr Martin’s letter and the commencement of the hearing, the presiding Judge had ascertained that there was a meeting of the University Committee in July 2017 at which both the presiding Judge and the applicant’s Senior Counsel attended.(4)The most recent social interaction between the presiding Judge and Senior Counsel occurred in 2016 at a social function at the Chambers of Senior Counsel on an invitation extended by all members of those Chambers.(5)Whilst a barrister at the independent bar, the presiding Judge had some professional dealings with Senior Counsel, characterised as professional relations between lawyers having mutual respect for each other.(6)The presiding Judge had not interacted socially at the level of a friendship with the applicant’s Senior Counsel.(7)The presiding Judge was formerly an Associate to the retired Judge.(8)The presiding Judge has had a number of social interactions with the retired Judge since 2016. The applicant’s Senior Counsel was not present at any of those occasions.(9)Prior to his appointment as a Justice of this Court in 1996, the retired Judge was a member of the same Chambers as the applicant’s Senior Counsel.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The most recent interlocutory judgment (Hillier No 8) concerned two issues affecting the defence of the proceedings by the second respondent, Nordburger Operations Pty Ltd. Judgment in respect of those matters had been set down for delivery on 19 October 2021. The matter was set down for a case management hearing on the same day. The dual purpose of the hearing was communicated to the parties by email from the Chambers of the presiding Judge transmitted on 15 October 2021. At 1:31pm on 19 October 2021, the lawyer for Operations, Mr Thomas Martin, sent a letter (by email) to the Chambers of the presiding Judge seeking that two urgent questions be brought to the Court’s attention. The letter asserted that both the presiding Judge and the applicant’s Senior Counsel had a “mutual close friend” in a person who is a former Justice of the Court (hereafter the retired Judge). The letter also asserted that the applicant’s Senior Counsel and the presiding Judge were each members of a Board of the Adelaide University known as the Adelaide University Law School Advisory Committee (the University Committee). The letter sought confirmation “of matters that go to the question of actual or apprehended bias” as follows:Firstly, what is the extent of the dealings her Honour has had with [Senior Counsel] in the course of their joint membership of the Adelaide University Law School Advisory Committee? Her Honour was appointed to that committee in February 2016 when [Senior Counsel] was already a member. [Senior Counsel’s] current published biographical information states that he is a member of the Committee.Secondly, what is the extent of any personal familiarity or social interaction between her Honour and [Senior Counsel], both generally but also in connection with their close association with the [retired Judge], formerly a senior member of this Court, who is their mutual close friend? The letter went on to assert that the presiding Judge had refrained to act on previous submissions Mr Martin had made with respect to the applicant’s Senior Counsel’s “unethical conduct in these proceedings” and that there was at least the appearance that “an undisclosed, pre-existing personal relationship between the bench and bar table may stand in the way of justice being served between the parties in this proceeding”. The letter asserted that the issue bore directly on the interlocutory applications set down for judgment that day, such that Mr Martin’s concern should be “addressed and resolved” before judgment was delivered.ISSUES IN THE PROCEEDING As his letter indicates, Mr Martin has previously made a submission to this Court to the effect that the applicant’s legal representatives have acted “unethically”. That has occurred in two contexts. The first context is an application for interlocutory relief made by the applicant on the face of the originating application at the time that the proceedings were commenced. The applicant sought orders requiring the first respondent to disclose financial records of the trust referred to in previous judgments as the Nordburger Holdings Trust (NH Trust). In his affidavit in support of that application, the applicant expressed a concern that the funds of the NH Trust had been misapplied to fund Mr Martin’s legal expenses in another proceeding in this Court. That concern was repeated in a letter to the South Australia District Registry by which the applicant’s solicitor sought an urgent hearing of the application for interlocutory relief. The applicant’s Senior Counsel appeared at the initial hearing and relied upon the applicant’s affidavit when asked to explain the urgency. Some months later, Mr Martin made an application in his personal capacity for an order suppressing from publication that part of the applicant’s affidavit in which the concerns of dissipation had been expressed. That application was dismissed: Hillier v Martin.Mr Martin appears to maintain that Senior Counsel’s reliance on the applicant’s affidavit constituted unethical conduct because the applicant’s concern about wrongful dissipation of trust money had no proper evidentiary foundation.