Lauro v Minter Ellison (A Firm) (No 3) - [2025] SASC 135

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
LAURO v MINTER ELLISON (A FIRM) (No 3)
[2025] SASC 135
Judgment of the Honourable Justice B Doyle
26 August 2025
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - TAXATION AND OTHER FORMS OF ASSESSMENT - APPEAL, REVIEW OR REFERENCE - OTHER MATTERS
COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - REASONABLE APPREHENSION OF BIAS GENERALLY
On 17 June 2022 the appellant filed an originating application for a taxation of costs as between solicitor and client (‘the underlying action’). An Auxiliary Associate Justice with conduct of that matter declined to accede to the appellant’s request that she recuse herself. The appellant appeals against that decision.
In the course of the underlying action, the Auxiliary Associate Justice made procedural orders on 27 June 2024 and 10 July 2024 (‘the procedural orders’) concerning the listing of interlocutory applications lodged by both the appellant and the respondent. The appellant made an application during the hearing of the appeal for an extension of time within which to seek leave to appeal against those orders.
Held, dismissing the appeal and declining to grant an extension of time or leave to appeal in respect of the procedural orders:
1.considered individually and cumulatively, the matters raised by the appellant are not such as might cause a fair minded lay observer reasonably to apprehend that the Auxiliary Associate Justice might not deal with the underlying action by reference to its merits;
2.the various grounds upon which the appellant wishes to challenge the procedural orders lack material prospects of success and it is not in the interests of justice to grant leave to appeal against those orders.

At the outset of the hearing of the appeal, the appellant by his litigation guardian made a third application that the Supreme Court Justice hearing the appeal recuse himself. The application was refused with reasons to be given later. This judgment contains those reasons.
Legal Practitioners Act 1981 (SA) sch 3 cl 37; Supreme Court Act 1935 (SA) s 50(4)(b); Supreme Court Civil Rules 2006 (SA) r 288(1)(a)(i); Uniform Civil Rules 2020 (SA) rr 12.1(2)(c), 102.2, 214.1, referred to.
Commonwealth v Saadat (2019) 134 SASR 184, applied.
Anderson v National Australia Bank [2007] VSCA 172; Brooks v Brooks [2022] SASC 1; Budd v Kambah Tea Tree Plantations Pty Ltd [2001] NSWCA 180; Candetti Constructions Pty Ltd v M & I Samaras (No 1) Pty Ltd & Ors [2011] SASC 189; CM v Secretary, Department of Communities and Justice [2021] NSWCA; Glenauchen Pty Ltd v Circuit Finance Pty Ltd [2001] SASC 61; Hanna v Flinders University [2025] SASC 81; Harris Scarfe Ltd (Receivers and Managers Appointed) (In Liq) v Ernst & Young (No 2) [2005] SASC 168; House v The King (1936) 55 CLR 499; IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd (1999) 78 SASR 151; Karbowiak v Mitolo [2024] SASCA 31; Lauro v Minter Ellison (A Firm) [2024] SASC 48; Lauro v Minter Ellison (A Firm) [2025] SASC 77; Lauro v Minter Ellison (A Firm) (No 2) [2025] SASC 90; McDonald v Attorney-General for South Australia [2022] SASCA 43; Niemann v Electronic Industries Ltd [1978] VR 431; Provatidis v A McFarlane & Sons Pty Ltd [2021] SASC 142; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; Rouse v IOOF Australia Trustees Ltd (No 5) [1999] SASC 294; South Australian Government Financing Authority v Bank of New Zealand [2002] SASC 56; Waikerie Murray River Queen Pty Ltd v Loizides [2009] SASC 257, discussed.

LAURO v MINTER ELLISON (A FIRM) (No 3)
[2025] SASC 135
Single Judge Appeal – Civil

B DOYLE J: These are my reasons for declining the appellant’s third application that I recuse myself and for dismissing the appellate proceeding.
Background
By notice of appeal filed on 11 March 2025, the appellant appealed against a decision of Auxiliary Associate Justice Florentzou (‘the judge’) on 29 January 2025 to decline to recuse herself. In the underlying action, the appellant has applied for a taxation of costs as between solicitor and client.
The appellant made a formal application that I recuse myself from hearing the appellate proceeding. On 27 May 2025, I gave reasons for declining to do so.[1]
[1] Lauro v Minter Ellison (A Firm) [2025] SASC 77.
On 30 May 2025, I heard argument on an interlocutory application by which the appellant’s litigation guardian, Mr Eric Lauro (‘Mr Lauro’) sought disclosure by the respondent of the names and addresses of the partners of the partnerships ‘associated with these proceedings and the proceedings at first instance’ as at various dates. I reserved my decision on the interlocutory application and made orders deferring the hearing of the substantive appeal that had previously been provisionally set down for that day. I made further timetabling orders in order to progress the appeal to a hearing on 27 June 2025. Those orders included granting the appellant permission to amend his notice of appeal.
Towards the conclusion of the hearing, Mr Lauro made a further oral application that I recuse myself. I declined to do so.
On 3 June 2025, I delivered reasons refusing the appellant’s interlocutory application.[2]
[2] Lauro v Minter Ellison (A Firm) (No 2) [2025] SASC 90.
The appellant filed an amended notice of appeal on 20 June 2025. The notice of appeal included a challenge to orders made by the judge on 4 March 2025.
On 27 June 2025:
·Mr Lauro made, and I refused, a further application that I recuse myself on grounds of apprehended bias;[3]
·I heard argument on the grounds of appeal and submissions filed; and
·I granted the appellant permission to further amend his notice of appeal to include a request for an extension of time and leave to appeal against orders of the judge made on 27 June 2024 and 10 July 2024.
[3] In ruling on the application I indicated that I would provide reasons for my decision in my substantive judgment on the appeal.
The appellant filed a further revised notice of appeal and written submissions addressing the new grounds on 11 July 2025. The respondent filed responding written submissions. I granted the appellant permission to file submissions in reply.
In respect of the orders made on 29 January 2025 and 4 March 2025, essentially, the appellant contends that the judge ought to have acceded to the appellant’s applications that she recuse herself. In part, the grounds for recusal involve a consideration of the conduct and outcome of hearings on 27 June 2024 and 10 July 2024. The appellant now wishes to challenge the orders made on those earlier dates on their own terms.
In order to consider the various grounds of appeal it is necessary briefly to summarise the course of the proceeding before the judge.
The conduct of the proceeding before the judge
The relevant proceeding was commenced by Originating Application on 18 May 2022. That application sought a taxation of costs between solicitor and client pursuant to cl 37 of Schedule 3 of the Legal Practitioners Act 1981 (SA) (‘LPA’). The named respondent was Minter Ellison (A Firm) (ABN 77478593704) trading as Minter Ellison.
The relief sought included:
1.That, pursuant to section 42 of the Legal Practitioners Act as it stood at the time of entering into the relevant retainer agreements (or, in the alternative, to the extent necessary, clause 41 of Schedule 3 of the said Act as it now stands) this honourable Court tax and settle the of costs [sic] issued by the Respondent to the Applicant for legal professional services the Respondent provided in the following civil matters:
1.1     Battista – Magistrates’ and Supreme Courts;
1.2     Marciano – Supreme Court;
1.3     Lego Homes – District Court;
1.4     Natural Stone – Magistrates’ and District Courts;
1.5     Tropeano – District and Supreme Courts;
1.6     Marble House – Magistrates’ and Supreme Courts;
1.7     other matters to the extent that costs were billed.
2.That the Respondent be restrained from commencing, maintaining, continuing or otherwise taking any steps to recover or enforce the costs the subject of this application.
3.That the Respondent’s proceedings or any steps to recover or enforce the costs the subject of this application be stayed.
The application was supported by an affidavit sworn by Mr Natale Lauro. In it he referred to his aggravated health condition. His affidavit annexed an affidavit sworn by his son, Mr Lauro.
Amongst other things, Mr Lauro’s affidavit:
·annexed letters of engagement and retainer documentation provided to the appellant in 2011 in relation to legal engagements;
·stated that to the extent necessary an extension of time for a taxation was sought having regard to the time taken in relation to the respondent’s recovery action (DCCIV-13-1810), his father’s disability which set in from February 2015 (resulting in a stay of that action for a time), the advice and conduct of his father’s previous lawyers, and the need to await the outcome of, and exhaust, appellate proceedings (including to the Court of Appeal and by way of a special leave application); and
·exhibited a table listing the relevant bills to be taxed and copies of the bills.
It is not necessary to traverse the interlocutory history of the matter in detail prior to the judge assuming responsibility for the conduct of the proceeding.[4]
[4] Some of that history is detailed in Lauro v Minter Ellison (A Firm) [2024] SASC 48.
Hearing on 16 May 2024
The matter was first listed before the judge on 16 May 2024. At that hearing, Mr Lauro submitted that there were preliminary issues including ‘who is the true or the correct respondent in this’. In that context he submitted that there had been a retainer with the (national) Minter Ellison Group and not the ‘local partnership’. He submitted that he had consistently raised the issue and that it needed to be resolved first in order to ensure that ‘who is on the other side is the correct respondent’. When asked by the judge who he said was the correct respondent, he responded ‘the national body of Minter Ellison’.
The judge then asked the solicitor appearing for the respondent about his position. He responded:
I would suggest that my friend write about this issue to me within the next 14 days and we can provide a response. It’s not something that we’ve raised or it’s been formally raised with us, as far as I remember.
The solicitor went on to refer to amendments to the costs provisions of the LPA and relevant transitional provisions, and to indicate that from the respondent’s perspective, the first hurdle the applicant needed to get over was whether he was entitled to an extension of time pursuant to cl 37(5) of Schedule 3 of the LPA.
The judge directed that the respondent file an interlocutory application dealing with the time question and requested that Mr Lauro correspond with the respondent in relation to his concerns about whether the correct respondent was named. She indicated that if the matter could not be resolved by correspondence that she assumed that he could file an application to be dealt with at the same time as the respondent’s application regarding the timing of the proceeding.
Mr Lauro submitted that ‘we need to sort out the issue of the respondent first, such that we can rely on what they say’. Essentially, Mr Lauro’s contention appears to have been that if the two foreshadowed applications proceeded in parallel there was a prospect that the Court might, in connection with the timing issue, be receiving affidavits or submissions from an impostor, or a partnership without ‘standing’.
The following exchange then occurred:
HER HONOUR:   So, are you content to proceed on the basis that Mr Doecke has suggested that we adjourn today and provide you with an opportunity to correspond with Minter Ellison for a period of time and then we will list it again for directions and hopefully the issue of the respondent aspect can be resolved, and if that's resolved, then we can press on with the respondent's application in relation to the timing issue.
MR LAURO:      Yes, that's exactly -
HER HONOUR: All right, I'm more than happy to proceed on that basis, Mr Lauro.
MR LAURO:      Thank you, and just as a final point, I don't want it to come across that this is a brand-new issue. This issue has been raised for many, many years.
HER HONOUR:   Well, you can take it all as a brand-new issue for the moment, Mr Lauro, considering I'm new to the file.
MR LAURO:      Thank you.
HER HONOUR:   So, if it gives you comfort to deal with that - from my view, I was trying to keep things moving for you but if you are happy to take it stage by stage, I am happy to take it stage by stage.
MR LAURO:      I don't want to be in a situation where another appeal may be necessary. I'm just saying this a fundamental issue to us.
HER HONOUR:   Is that a threat, Mr Lauro?
MR LAURO:      No, it's not.
MR DOECKE:     My preference in the mass of time that's already elapsed since the issue of the invoices and the time limitation issues would be that the applicant could write to us within 7-14 days and we could respond within seven days, and then if necessary they could file an application within seven days thereafter and we could file our application at the same time within seven days thereafter just to keep the matter moving because I'm just worried that this issue will cause a further delay and we haven't taken issue with the named respondent that was named in the applicant's application to date. However, if your Honour prefers, I'm content with your alternative proposal of letting this matter be adjourned for a short period and the correspondence playing out.
HER HONOUR:   I can't stop you from filing an application that can be made returnable for the next occasion, but I can't I think list that because I don't have the application yet.
MR DOECKE:      Yes.
HER HONOUR: So, I think what we'll do is we'll adjourn it for a period of time to allow that communication to go through and hopefully you can resolve the respondent issue, but in the meantime if you file your application in relation to the extension of time then that will be mentioned on the next occasion and I would provide Mr Lauro with an opportunity to file any responding material and then list it for argument.
MR DOECKE:     Thank you.
HER HONOUR:   Mr Lauro has raised an issue in relation to the named respondent. Mr Doecke has indicated that this issue may be resolved by way of correspondence. If not, I have invited Mr Lauro to file any application that he may consider necessary for the correct respondent to be named to the proceedings.
Mr Doecke has raised the issue of the time of the taxation and whether an extension of time is required. It is foreshadowed that an application will be made before the next directions hearing. The matter will be adjourned in order to see whether the issue of the named respondent can be resolved between the parties.
1.   The applicant is to write to the respondent within 14 days in regard to his concern about the correct respondent being named to the proceedings.
MR LAURO:      It's not whether it's the correct respondent but it also goes to who is the respondent to the retainer. Thank you.
HER HONOUR: Mr Lauro has raised an issue in relation to the named respondent and an issue in regard to the - how would you like that worded, Mr Lauro, in regard to the -
MR LAURO:      Third parties, the parties to the 2011 retainer, thank, you.
HER HONOUR:
2.   The applicant is to write to the respondent within 14 days in regard to his concern about the correct respondent being named to the proceedings and the parties named in the retainer. Upon receipt of the letter required in order 1, the respondent is to reply in seven days.
HER HONOUR: Let's find a directions hearing date in four weeks time. Will parties be available on 13 June at 2.15?
MR LAURO:      Thank you.
MR DOECKE:      Yes, I am.
HER HONOUR:   Thank you. Mr Lauro was there anything else for the purposes of today?
MR LAURO:      No, thank you.
As will be seen, Mr Lauro has since expressed a concern about the judge having asked whether his submission was a threat.
Correspondence and applications filed by the parties
Following the hearing, on 30 May 2024, Mr Lauro wrote to Mr Doecke of the respondent in these terms.
Pursuant to Order 1 of the Orders made by the honourable Auxiliary Judge Flourentzou on 16 May 2024, I am writing to you concerning the preliminary issues of the correct Respondent being named in the subject proceedings and the parties named in the relevant retainer.
By way of background
A. When the law firm of Minter Ellison in Adelaide was first approached to provide legal services to my father (the Applicant), representations were made to him and me by Grant Mitchell (a purported partner of the said law firm), to the effect that Minter Ellison was the national law firm with relevant expertise to assist.
B. The correspondence that ensured (being exhibit EL1 to my Affidavit affirmed on 17 May 2022 (FDN 2)), referred: (i) in the cover letters dated 31 May 2011 to Minter Ellison Group and associated offices; (ii) in the 'Terms of engagement' dated January 2011 (which were attached to the letters referred to in subparagraph B(i) herein), the Minter Ellison Legal Group.
C. At no time was any partnership or licensed body referred to in the above documents.
D. At no time did my father engage or contract with any partnership or licensed body for the provision of legal services to him.
E. The legal costs, fees and disbursements the subject of taxation are all those that have been invoiced (or billed) since about June 2011. At all times, payments of the majority of invoices made up to about April 2012 were made subject to review and without prejudice to my father’s rights under Division 8 of the Legal Practitioners Act SA 1981 (SA) as it stood at that time. This was also the case in relation to the invoices issued after April 2012, which invoices were also expressly disputed and are the subject of taxation.
F. In or about February 2015, Grant Mitchell gave evidence that the unpaid invoices had been ‘written off’.
G. In or about June 2018, it was made public to the effect that the Minter Ellison Group and/or Minter Ellison Legal Group had taken over the South Australian partnership which, as mentioned above, was not the party which my father engaged to provide legal professional services.
Identification of the correct Respondent
Having regard to the above facts, I would be grateful if you could please disclose and produce to me the following class of documents for the purposes of confirming the correct Respondent in the subject proceedings:
1. All documents recording the business names and/or legal entities of the South Australian partnership and the Minter Ellison Legal Group and/or Minter Ellison Legal Group.
2. All documents in relation to and connection with the take over of the South Australian partnership by the Minter Ellison Group and/or Minter Ellison Legal Group.
3. all documents in relation to and connection with, and which evidence, the amounts of unpaid invoices having been ‘written off’ as mentioned in paragraph F. herein.
I look forward to receiving your reply including the documents requested above within 7 days of receipt of this email in accordance with Order 2 of the aforementioned Orders.

About one week later, Mr Doecke responded in these terms.
We refer to Mr Natale Lauro's application for taxation of legal costs filed against Minter Ellison in Supreme Court Action No SCCIV-22-5455.
We also refer to your email of 30 May 2024 in relation to your concern about the correct Respondent being named in the proceedings and the party named in the retainer, as required by Order 1 of the orders made by the Court on 16 May 2024.
The two retainer agreements entered into by Mr Natale Lauro were entered into with the partnership Minter Ellison (ABN: 77478593704) trading as Minter Ellison.
The partnership Minter Ellison (ABN: 77478593704) trading as Minter Ellison is the entity which has filed a notice of acting in relation to the application for taxation and also the entity which obtained judgment against Mr Natale Lauro in District Court of South Australia proceedings numbered DCCIV-13-1810 on 17 September 2018.
We enclose copies of the current and historical details of the Respondent stored on the Australian Government's Australian Business Register which confirm the Respondent's trading name as Minter Ellison since 7 July 2000.
Minter Ellison was at that time a member of the Minter Ellison Legal Group, which is why the Terms of Engagement included in the retainer agreements refer to other members of the 'Minter Ellison Legal Group' under the heading Privacy. There was no retainer with either Minter Ellison Legal Group or Minter Ellison Group as these terms are general descriptions of a group of entities not a reference to a legal entity.
Grant Mitchell was a partner of Minter Ellison at all material times and it is appropriate that he provide evidence in relation to this matter as he has already done so in FDN 19.
We otherwise do not agree to provide the information you have requested as we consider the above response is sufficient to confirm that the partnership Minter Ellison (ABN: 77478593704) trading as Minter Ellison is the correct Respondent and the party named in the retainer agreements.
Otherwise we refer you to the enclosed judgment of Judge Chivell at paragraph 3 in District Court of South Australia proceedings numbered DCCIV-13-1810 where he confirmed that Mr Grant Mitchell was 'a partner of the plaintiff firm'.
Furthermore the enclosed affidavit of Mr Natale Lauro sworn on 23 October 2019 confirms at paragraphs 212 to 226 that the two relevant retainer agreements were from Minter Ellison and on a letter from Minter Ellison dated 31 May 2011. Please feel free to contact me on the below number if you wish to discuss the matter further.
On 25 June 2024, the respondent filed an interlocutory application by which it sought a determination of whether the provisions of Schedule 3 of the LPA applied to the taxation and a determination of whether it had been brought within the time required by cl 37(4) of Schedule 3. It also sought a determination of whether it was just and fair for the Court to deal with the application for a taxation notwithstanding it was made out of time pursuant to cl 37(5) of Schedule 3. The application sought a determination of these matters prior to any adjudication of costs being set down for hearing.
On 26 June 2024, Mr Lauro caused to be filed an interlocutory application seeking disclosure of ‘relevant documents relating to the correct and determination of the Applicant’s preliminary issues prior to those raised by the current party responding for the Respondent’. The orders sought included:
2.That the issues raised by the Applicant at the hearing on 16 May 2024, the subject of this Application, be heard and determined as threshold preliminary issues prior to … any further steps being taken in this proceeding.
3. That the proper Respondent disclose and produce to the Applicant:
3.1.    All documents recording the business names and/or legal entities of the South Australian partnership of A.S BANNISTER & L.A DREW (ABN 77478593704) and the Minter Ellison Legal Group and/or the Minter Ellison Group;
3.2.    all documents in relation to and connection with the takeover of A.S BANNISTER & L.A DREW (ABN 77478593704) by the Minter Ellison Legal Group and/or the Minter Ellison Group;
3.3.    all documents in relation to and connection with, and which evidence, the amounts of unpaid invoices having been 'written off' including documents which record the following particulars:
3.3.1. the Tax Invoice number, the date and the amount of each relevant Tax Invoice;
3.3.2. when the relevant Tax Invoices were ‘written off’, by whom and on whose authority;
3.3.3. the treatment and recording of all of the relevant Tax Invoices in the books and records (including financial reports, Tax Returns and Tax Assessments) of A.S BANNISTER & L.A DREW (ABN 77478593704) and the Minter Ellison Legal Group and/or the Minter Ellison Group from 31 May 2011 to the present;
3.3.4. the treatment and recording of the relevant amounts which were ‘written off’ in the books and records (including the financial statements, Tax Returns and Tax Assessments) of A.S BANNISTER & L.A DREW (ABN: 77478593704) and the Minter Ellison Legal Group and/or the Minter Ellison Group from 31 May 2011 to the present.
Mr Lauro swore a brief affidavit in support of that application which exhibited the exchange of correspondence summarised above. He asserted that the respondent’s response to the issues by way of correspondence was inadequate. He expressed a belief that the application was ‘necessary to resolve the issue of establishing who is the correct respondent to be named in the proceedings and other issues arising in relation to and connection with the relevant Retainer Agreement at this time’.
Hearing on 27 June 2024
The transcript of the hearing on 27 June 2024 records the respondent’s counsel informing the judge that Mr Lauro was outside the courtroom. Counsel for the respondent explained that he understood, from a comment Mr Lauro had made, that Mr Lauro had a problem being in the courtroom whilst a particular person was present.
In Mr Lauro’s absence, the judge asked counsel for the respondent what was proposed. Counsel submitted that the application about whether the proceeding for a taxation was time-barred should be listed for hearing. He said that whilst he did not fully understand the object of Mr Lauro’s application, ‘if necessary that argument as to that application be set down for argument at the same time’. He expressed a preference for the determination of the respondent’s application first.
The judge was plainly mindful that Mr Lauro was not present but observed that if she were simply to make orders listing the applications she could not see how the proposal would cause him any prejudice if sufficient time was allowed for things to occur.
Mr Lauro briefly entered the courtroom and explained his concern but then said he did not feel safe and had to leave.
The record of outcome states that:
Remarks
Mr E Lauro briefly appeared in the courtroom before the proceedings commenced but refused to remain for the hearing. I am told that this is due to his concern in relation to a person sitting in the gallery of the courtroom. Mr Lauro entered the courtroom at 11.15am and sought an adjournment on the basis that he does not feel safe in the courtroom while the person remains in the gallery. I told Mr Lauro that I would be listing both applications for argument. He then left the courtroom at 11.17am.
The respondent has filed FDN 42 as indicated on the last occasion. Counsel seeks for the application to be timetabled and listed for argument. The applicant has also filed an application FDN 44. I will list both applications for argument.
Order
1. The applicant is to file any responding material in relation to FDN 42 by 25/07/24.
2. The respondent is to file any material in reply in relation to FDN 42 by 08/08/24.
3. The respondent is to file any responding material in relation to FDN 44 by 11/07/24.
4. The applicant is to file any material in reply in relation to FDN 44 by 08/08/24.
5. The parties are to file written submissions by 19/08/24.
6. FDN 42 and FDN 44 are listed for argument on Thursday 22/08/24 at 10.15am.
7. The applicant is to advise the court by close of business on Friday 05/07/24 if the above timetable is not suitable to him.
8. Costs in the cause.
9. Liberty to apply.
By his revised notice of appeal, the appellant now challenges order 6. Whilst the order is effectively spent, presumably the appellant seeks a ruling on appeal that the judge erred by listing the two applications on the same day.
Application to vary orders
By an interlocutory application dated 5 July 2024, the appellant did apply to vary those programming orders, as catered for by order 7. He sought further time and that his application be heard and determined ‘as threshold preliminary issues prior to any further steps being taken’ in the proceeding. He also sought to be provided with a copy of the transcript of the previous hearing ‘at no cost, as soon as possible’.
Mr Lauro’s affidavit in support attached an email he sent to the Registry at 11.10 am on 27 June 2024, which stated that upon arrival for the hearing at 11.00 am that morning he saw a legal practitioner (who had no direct involvement in the proceeding) ‘in my vicinity and obstructing my way into Court room 9’. The email went on to say that he would be making a complaint to the Legal Profession Conduct Commissioner about this and that he requested that the hearing be adjourned until such time as the practitioner left the courtroom or that a new date be fixed. He requested that the email be forwarded to the judge and her chambers.
Hearing on 10 July 2024
The application was listed before the judge on 10 July 2024. The judge invited Mr Lauro to address his concern with the orders he wanted varied. Mr Lauro made a lengthy submission as to why he wanted his application determined first so as to ‘establish who is the other entity so many years down the track’. He said that:
[i]t may very well be that, you know, if it is another entity, they might take a different view in relation to other procedural issues such as the time extension. It may be that it gets resolved. It may be many things. …
Mr Doecke, who appeared for the respondent, submitted that the applicant’s application was in fact for discovery and was not ‘a preliminary threshold issue’. He reiterated the respondent’s submission that the question of whether the matter was out of time (and if so whether a discretion to extend time should be exercised) was the appropriate application to be determined first. However, he submitted, as it is currently listed, ‘they’ll be heard concurrently’.
The judge said to Mr Lauro that she could not see a problem with hearing the two applications concurrently. There were then various exchanges and submissions from the parties. In the course of those submissions, Mr Doecke said that the respondent, for whom he appeared, was the South Australian partnership that had entered into the relevant retainers and which, whilst it no longer actively traded (because its business had been transferred to a national partnership), still existed and was competent to participate in the proceeding.
In the course of discussion, the judge said to Mr Lauro that she was happy to hear and determine the appellant’s application and then continue to hear and determine the respondent’s application in relation to timing. Mr Lauro continued to press for the two matters to be listed separately rather than concurrently. There were lengthy exchanges about the issue.
Ultimately, however, the judge was not persuaded that she should list the two applications on different dates. The Court record states:
Remarks
The Applicant seeks to have his application in relation to whether the respondent is the correct party to be heard and determined prior to the respondent's application contained within FDN 42. However, I am prepared to hear both applications at the same time. That is the most effective use of the Court's resources and the most efficient way for the matter to proceed. The Applicant also seeks a copy of the Court transcript from the last directions hearing on 27 June 2024. I am not prepared to make that order. The Applicant can proceed to request a copy of the transcript in the usual course and can apply for a fee exemption via the Civil Registry.
Order
1. I confirm orders 1-6 (inclusive) made by me on 27 June 2024.
2. Costs in the cause.
3. Liberty to apply.
The appellant now seeks an extension of time and permission to appeal against order 1. (Again, the order is in fact spent, because the orders made on 27 June 2024 contemplated a hearing on a date that has now passed).
Recusal application
On 26 July 2024, the appellant made an application that the judge recuse herself and seeking also that his application (FDN 44) be heard and determined before the respondent’s application (FDN 42). The application sought that the judge hear and determine the question of recusal and provide written reasons before taking any further step in the action.
The recusal application was ultimately not heard until 14 November 2024. Mr Lauro made submissions expressing concern about the judge’s reference to a ‘threat’ during the hearing on 16 May 2024, about the judge proceeding in Mr Lauro’s absence on 27 June 2024 (including a contention that the judge ‘hastily vacated the courtroom’ at the end of that hearing), and about the judge favouring the respondent in relation to the listing of the parties’ rival interlocutory applications.
Mr Lauro submitted that, unfortunately, based on ‘generic advice’ that he had received, it could be reasonably argued that there was a reasonable apprehension of bias and that there was a degree of antipathy towards the appellant, the appellant’s case, or him. He relied on the combined effect (or appearance) of a number of circumstances.
The judge’s reasons on recusal
For reasons published on 29 January 2025, the judge declined to recuse herself.
The judge briefly summarised the nature and background of the proceedings, the essential complaints of Mr Lauro and the relevant legal principles, before concluding as follows:
The proceedings were commenced on 18 May 2022, and is for the taxation of costs. It is in the interest of justice that the matter progress. I have not had any previous involvement with this action, or Mr Lauro’s previous actions. In addition, I do not have any known conflicts of interest.
The procedural management that I have adopted with this action has been in accordance with the usual practice of the Court, which requires balancing the needs of the parties against the resources of the Court.
The proposal to hear Mr Lauro’s application first followed by Minter Ellison’s application on the same day is the most cost effective and efficient approach and is not prejudicial to either party. Rather, this approach assists with ensuring that the action continues to progress in a timely fashion.
In relation to the orders that were made on 27 June 2024, the orders included an order that Mr Lauro be permitted to advise the Court if the timetabling orders were not suitable to the applicant. In any event, the orders that were ultimately made on that occasion were otherwise uncontroversial and were procedural in nature to again progress the matter.
The exchange that occurred on 16 May 2024 at pages 15-16 of the transcript, does not affect my ability to remain impartial when hearing and determining any application in the action or the taxation.
Therefore, I am not satisfied that Mr Lauro has demonstrated that a fair minded lay observer would reasonably apprehend that I am unable to bring an impartial and unprejudiced mind to any issue that that needs to be determined. Furthermore, Mr Lauro has not established a logical connection about my management of the action, which would influence the outcome of any application or the taxation.
Accordingly, I am not satisfied that Mr Lauro has provided a proper basis on which I should recuse myself and I dismiss FDN 52. I will hear the parties on the question of costs.
The judge made an order dismissing the interlocutory application for recusal. The appellant appeals against that order.
Further application for recusal of the judge
On 3 March 2025, the appellant made another ‘urgent’ application seeking, among other things, that the judge recuse herself or that, in the alternative, she provide written reasons for her decision not to recuse herself and grant permission to appeal such decision.
The brief supporting affidavit of Mr Lauro asserted that:
In light of [the judge’s reasons] additional and renewed apprehension of bias has arisen, including due to the fact that only procedural issues were (mis)considered, and conduct issues (warrantying [sic] a complaint to the Judicial Conduct Commissioner) were not addressed.
In the premises … I will again seek her Honour’s recusal …
At the hearing on 4 March 2025, the judge dismissed the application for recusal and granted leave for the appellant to appeal that decision and her decision on 29 January 2025.
Further application for recusal on appeal
At the outset of the hearing of the appeal, Mr Lauro made a further oral application that I recuse myself.
The grounds (together with some responses to them) may be summarised as follows.
·First, when I made timetabling orders for the appeal consequent upon the deferral of the date that I fixed at an earlier time on a preliminary basis, I did not make an order for the filing of written submissions by the appellant, nor did I make an order for submissions in reply by the appellant. It is correct that my directions on 30 May 2025 mistakenly only required the appellant to file the appeal book, list of authorities and chronology.   This (obvious) slip did not preclude the appellant from filing written submissions, and he did in fact file written submissions. As for my not making provision for reply submissions, Mr Lauro took no particular issue about that when I made the orders. Mr Lauro had the opportunity to make reply submissions during the hearing and subsequently to the hearing. These matters could not cause a fair minded lay observer to consider that I might not decide the issues raised by the appeal on their merits.
·Secondly, it was submitted that in the context of the earlier recusal application, I did not give sufficiently specific guidance to Mr Lauro about what he would need to include in an affidavit relating to complaints made about the conduct of family members of mine. I described the guidance that I gave and the procedural context in my earlier decision.[5] I do not accept that the guidance was deficient; it probably exceeded any obligation that I owed to the appellant. A fair minded lay observer could not form a concern about my independence as a consequence. In connection with this issue, I was told, without any detail, that a ‘fresh complaint’ had been made to ‘relevant authorities including the Judicial Conduct Commissioner’. For similar reasons to those to which I adverted in my earlier reasons, I am not able to attach any significance to that assertion.[6]
·Next, Mr Lauro referred to the fact that other judges had formally or informally recused themselves, sometimes without reasons. Reference was made to the Chief Justice recusing himself in relation to an appeal in another case. Mr Lauro also made what he characterised as a ‘constitutional point’, namely, that King Charles had decided to remove Prince Andrew from Crown affairs because he had ‘certain associations’, and the apprehension or perception of those associations were sufficient ‘for the monarch to do what he did’. Respectfully, referring to what others are said to have done in other contexts does not advance the application. The focus must be on any conduct or association of mine.
·Mr Lauro contended that my earlier judgment ‘brushed over’ and was ‘quite superficial’ in relation to my (asserted) ‘dealings and relationship with Minter Ellison by reference to the cab rank system’. It was said I did not go into specifics about my ‘relationship’ with the insurance practice of Minter Ellison. As I explained in my earlier reasons, I have no, and as a barrister had no ‘relationship’ with Minter Ellison save that over a number of years I accepted numerous briefs acting for and against clients of Minter Ellison.[7] I did not act on the instructions of Minter Ellison (or any partner of it, or practice within that firm) with such a frequency that I might be perceived to have had anything other than a professional relationship of a kind that is quite routine for barristers to maintain with a number of firms. In that context, there was no utility in me setting out, in greater detail, the particular matters that I was involved in with particular solicitors at Minter Ellison over numerous years.
·Next, Mr Lauro submitted that there seemed to have been a ‘failure in disclosing a further relationship … through the Helpmann Academy, which is an entity supported by Minter Ellison’. Mr Lauro submitted that he understood that I, along with my wife, have been or are a patron. Neither I nor my wife are ‘patrons’ of the Helpmann Academy. The fact that we may have previously donated to the same not-for-profit arts body as the respondent could not give rise to reasonable apprehension of bias.
·Mr Lauro made a further submission that he had seen a reference to my wife’s former position with Minter Ellison being as ‘a senior business development and strategy executive … [so] not just a mere employee’. As I explained in my earlier reasons, my wife was a salaried employee. That employment, which ceased six or so years ago, does not, for reasons I gave earlier, give rise to a reasonable apprehension of bias.
·Mr Lauro submitted that I had failed to distinguish between actual and apprehended bias and that I seem to have taken an approach that ‘yes, I’ve got associations left right and centre … but it’s all good, we can proceed’. Respectfully, that is simply a criticism of my earlier reasons, and not a basis for further or renewed application for recusal. It would serve no purpose for me to address the criticism.
·Next, Mr Lauro contended that the listing of the matter in late June had ‘been done tactically to minimise my preparation, to minimise my time, to facilitate the other side’. He referred to my ‘insistence to remain in this proceeding’. It was suggested that I had earlier adopted the position that the appeal had to be heard in May but then ‘lo and behold we magically find another month’. As I recounted in my earlier reasons, I initially provisionally listed the appeal for hearing in May, albeit as late in the month as practicable.[8] The first recusal application became protracted for reasons explained in my earlier reasons. I therefore vacated that provisional hearing and listed the matter as late as practicable in June. Respectfully, the suggestion that my listing of the appeal approximately three months after it was filed was ‘tactical’ or designed to advantage or disadvantage particular parties is without foundation. I respectfully reject the suggestion that I ‘insisted’ on remaining in the proceeding. If I had considered this was a case of ‘real doubt’, I might have recused myself, but in my view it was not.[9] As for the suggestion that a date ‘magically’ became available in June, the position is that although I was rostered to other judicial duties in that month, I accommodated what was a half day appeal hearing because I regarded that as appropriate instead of the matter being deferred until September.[10] I do not consider a fair minded lay observer might perceive that I have any personal desire or motivation to retain the carriage of this appeal.
[5]     Lauro v Minter Ellison (A Firm) [2025] SASC 77 at [72]-[77].
[6]     Lauro v Minter Ellison (A Firm) [2025] SASC 77 at [87]-[88].
[7]     Lauro v Minter Ellison (A Firm) [2025] SASC 77 at [63]-[67].
[8]     Lauro v Minter Ellison (A Firm) [2025] SASC 77 at [25]-[27].
[9]     Lauro v Minter Ellison (A Firm) [2025] SASC 77 at [100].
[10] The other judicial officers hearing single judge appeals in the intervening period have been the subject of objection by Mr Lauro.

Considered separately and cumulatively, the matters relied upon by Mr Lauro did not warrant or require my recusal. Accordingly, I dismissed that application.
The appeal
Mr Lauro’s written submissions on appeal asserted that the appeal did not solely concern the judge’s failure to recuse herself but also raised ‘additional and interrelated grounds relating to’ an error of law arising from the failure to determine a material threshold of standing; procedural unfairness; and the judge’s conduct.
In the respondent’s written submissions the point was made that to the extent that the appellant’s submissions sought to challenge the judge’s decision on 27 June 2024 to list the two interlocutory applications on the same date, neither the original direction, nor the direction on 10 July 2024 confirming that approach, had been appealed.
That prompted the application at the outset of the hearing, which I allowed over the respondent’s opposition, to amend the appellant’s notice of appeal. In written submissions that I permitted the appellant to file after the hearing, it was contended that he should be permitted to challenge the relevant orders made on 27 June 2024 and 10 July 2024. Mr Lauro contended that the recusal application partly arose from the making of those orders and that they were therefore ‘already under substantive challenge in the appeal’. In a loose sense that may be so, but the orders were not in fact under appeal. It therefore remains necessary to consider whether, given the passage of time, and the interlocutory nature of the orders challenged, the Court should now entertain an appeal in respect of these issues.
The grounds of appeal are reproduced for convenience in an annexure to these reasons.
The issues
The following issues arise on the appeal.
(1)Should an extension of time and leave to appeal be granted so that the appellant can challenge the identified orders made on 27 June 2024 and 10 July 2024?
(2)If so, should the appeal be allowed or dismissed in those respects?
(3)Is the appeal in respect of the judge’s decisions not to recuse herself competent and should the appeal be allowed or dismissed in those respects?
Subject to any statute or rule to the contrary, an appeal must be instituted within 21 days after the date of the judgment or order the subject of the appeal.[11] The Court has power to grant an extension of time.[12] In considering whether to exercise its discretion to grant an extension, the main factors of relevance are the length of the delay, the reasons for it, the hardship to the applicant if an extension is not granted and the prejudice to the respondent if it is.[13] The Court may also consider whether the appeal has any prospects of success.[14]
[11] Uniform Civil Rules 2020 (SA) (‘UCRs’), r 214.1(1).
[12] UCRs, rr 12.1(2)(c) and 214.1(3)-(5).
[13] See, eg, Provatidis v A McFarlane & Sons Pty Ltd [2021] SASC 142 at [36] (Hughes J).
[14] Brooks v Brooks [2022] SASC 1 at [23], [28]-[29] (Stein J).
In determining whether to grant leave, the Court acts in the interests of justice, and by reference to three inter-related questions, namely: whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal; whether the decision raises an issue of principle or general importance; and whether allowing the decision to stand would work a substantial injustice to the applicant.[15] When considering whether the decision in question is attended with sufficient doubt to warrant reconsideration on appeal, it has to be borne in mind that discretionary decisions will only be disturbed on appeal where a relevant error of principle or material misapprehension of fact is shown.[16]
[15] McDonald v Attorney-General for South Australia [2022] SASCA 43 at [21] (Livesey P and Bleby JA).
[16] House v The King (1936) 55 CLR 499.
Where the discretionary decision concerns a matter of practice and procedure, the appeal court may show even greater deference to the decision of the primary judge and will exercise appropriate caution before granting leave and intervening on appeal.[17]
[17] Karbowiak v Mitolo [2024] SASCA 31 at [6] (Livesey P, Doyle and Bleby JJA).
In Commonwealth v Saadat,[18] Kourakis CJ, with whom Peek and Nicholson JJ agreed, said that:[19]
[18] (2019) 134 SASR 184.
[19] (2019) 134 SASR 184 at [49]-[52].
The deference accorded to the exercise of a discretion at first instance reduces cost and delay. It enhances the administration of justice by precluding litigation over decisions on which judicial minds might reasonably differ unless a vitiating error of the kind described in House v The King[20] is demonstrated.
[20] (1936) 55 CLR 499.
Moreover, an appeal against an interlocutory case‑management decision of a judge can be brought only with the permission of the Court.[21] The practice of intermediate courts of appeal is to grant permission to appeal against interlocutory decisions only if a question of general principle arises, or when it is clear that the decision is likely to work a substantial injustice if it were allowed to stand.[22] The restrictive approach to granting permission to appeal against interlocutory case-management decisions is based on important considerations of legal policy. Appeals against case-management decisions may:
[21] Supreme Court Act 1935 (SA) s 50(4)(b) and Supreme Court Civil Rules 2006 (SA) r 288(1)(a)(i).
[22] Glenauchen Pty Ltd v Circuit Finance Pty Ltd [2001] SASC 61; South Australian Government Financing Authority v Bank of New Zealand [2002] SASC 56.
·unnecessarily delay the determination of the substantive issue;
·disproportionately increase the costs of litigation; and
·result in conflicting decisions at trial and on appeal, neither of which are clearly right or wrong, but simply reflect differences of weight and emphasis.
In Niemann v Electronic Industries Ltd, Murphy J explained that both error and a substantial injustice must be shown to attract a grant of permission to appeal against a case‑management decision: [23]
… If the order was correct then it follows that substantial injustice could not follow. If the order is seen to be clearly wrong, this is not alone sufficient. It must be shown, in addition, to effect a substantial injustice by its operation.
In Candetti Constructions Pty Ltd v M & I Samaras (No 1) Pty Ltd & Ors, Blue J identified the following relevant considerations:[24]
1.The question whether or not permission ought to be granted is discretionary.[25]
2.A factor to be considered is whether the issue raised is one of general importance, as opposed to simply depending upon the facts of the particular case.[26]
3.A factor to be considered is whether, viewed objectively, the issue raised is one upon which reasonable minds may differ or involves a difficult or complex question of law (going to whether the decision is attended by sufficient doubt).[27]
4.A factor to be considered is whether the order has the effect of determining or altering the substantive rights of the parties, as opposed to a matter of practice or procedure.[28]
[23] [1978] VR 431 at 441.
[24] [2011] SASC 189 at [6].
[25] Rouse v IOOF Australia Trustees Ltd (No 5) [1999] SASC 294 at [43] per Lander J; Waikerie Murray River Queen Pty Ltd v Loizides [2009] SASC 257 at [22] per Doyle CJ, Sulan and Kelly JJ.
[26] Niemann v Electronic Industries Ltd [1978] VR 431 at 441 per Murphy J; Harris Scarfe Ltd (Receivers and Managers Appointed) (In Liq) v Ernst & Young (No 2) [2005] SASC 168; (2005) 240 LSJS 17 at [12] and [17] per Bleby J.
[27] Niemann v Electronic Industries Ltd [1978] VR 431 at 441 per Murphy J; Harris Scarfe Ltd (Receivers and Managers Appointed) (In Liq) v Ernst & Young (No 2) (2005) 240 LSJS 17 at [12] and [16] per Bleby J.
[28] Niemann v Electronic Industries Ltd [1978] VR 431 at 441 per Murphy J; Rouse v IOOF Australia Trustees Ltd (No 5) [1999] SASC 294 at [44] per Lander J; Harris Scarfe Ltd (Receivers and Managers Appointed) (In Liq) v Ernst & Young (No 2) (2005) 240 LSJS 17 at [12] and [14] per Bleby J.
The challenge to the orders of 27 June 2024 and 10 July 2024
Essentially, the grounds upon which the appellant wishes to challenge the relevant orders are as follows:
·the judge failed to accord procedural fairness, and/or violated the ‘15 minute’ rule, by proceeding to hear submissions and make submissions in Mr Lauro’s absence on 27 June 2024;[29]
·the judge failed to accord procedural fairness by failing to address the concerns raised on 10 July 2024 about the orders made on 27 June 2024 in his absence;[30] and
·the judge erred by failing to first hear and determine, as a preliminary threshold issue, the argument on whether the correct respondent was properly named and was appearing or duly represented in the originating proceedings, and by failing to require the respondent to provide information consistent with the UCRs regarding the identity of the relevant legal entity or entities associated with the retainer.[31]
[29] Notice of Appeal (Revision 2), FDN 32, Grounds of appeal at [8] (‘Appeal grounds’).
[30] Appeal grounds [9].
[31] Appeal grounds [5].
For the reasons that follow, the appellant’s arguments lack material prospects of success.
Programming orders made in a party’s absence
In the absence of Mr Lauro, rather than immediately abandon the hearing, the judge enquired of the respondent’s counsel what the respondent proposed should occur. The respondent’s counsel canvassed possible procedural orders with the judge. The judge knew, from the previous hearing on 16 May 2024, that the appellant wanted his application determined, and also knew, from the respondent’s counsel’s submission, that the respondent wanted its application determined. The judge listed both applications for argument on the same day. That direction left open which submissions would be heard first and whether the judge would determine one application before proceeding to deal with the other. Further, the judge gave Mr Lauro the opportunity to seek to vary the timetable if it was not suitable to him.
The hearing before the judge was a directions hearing. The judge was not being asked finally to determine any substantive or even procedural rights. The orders made were programming orders. On occasion, considerations of efficiency may support, or even demand the Court attempting to make some progress in relation to programming orders in the absence of a party. A sensible way of balancing the potential prejudice to the absent party is to expressly build in, as the judge’s orders did, a facility for the absent party to apply to vary the orders made.
The good sense in such a course is obvious. It will often turn out that the absent party has no difficulty with the orders made. The matter will have been progressed towards a conclusion. If the absent party has a difficulty, they may be able to agree variations to the order by consent. If not, the matter can be called back on. Indeed, it is not unusual for interlocutory applications to be given a hearing date upon their filing by the Registrar, or for a Court to make directions as to the conduct of an application without hearing from the parties at all.[32] This is done with an awareness that should there be some material reason why the date fixed, or the timetable set down, is inappropriate, a party can approach the Court with a request that it be varied. Interlocutory orders are by their nature able to be revisited.
[32] UCRs, r 102.2.
The practical content of the Court’s overarching obligation to accord procedural fairness to the parties in any particular situation is informed by the extent to which rights or interests may be finally affected by the decision proposed to be made and the protections that are available to remedy any perceived disadvantage that may arise from adopting a particular course. That is because fairness is not an abstract concept but an essentially practical one.[33] In the present case, a consideration of the fact that all that was in issue was the programming of interlocutory applications, together with the express provision for Mr Lauro to revisit the orders, leads to the conclusion that there was no denial of procedural fairness.
[33] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1 at [37] (Gleeson CJ).
Contrary to Mr Lauro’s submissions, although it would ordinarily be appropriate to wait 15 minutes before proceeding, in a fashion adverse to the absent party, at a trial of a claim,[34] or before granting the substantive relief sought in an originating application,[35] there is no ‘15 minute rule’ applicable to the making of procedural orders at a directions hearing.
[34] UCRs, r 145.1.
[35] UCRs, r 145.2.
If a party making an interlocutory application fails to appear at a hearing of the application, the Court may dismiss it or make such other or further order as it thinks fit and, likewise, if the party against whom an interlocutory application is made fails to appear at a hearing of the application, the Court may make the order sought on the application or make such or further order as it thinks fit.[36] Plainly, at a directions hearing at which interlocutory applications are returnable for mention, the Court has a discretion to list the applications even though one of the parties is not in attendance. There is no requirement to wait 15 minutes before doing so.
[36] UCRs, r 102.4.
The contention that order 6 made on 27 June 2024 was vitiated by error by reason that it was made in the appellant’s absence lacks material prospects of success.
Subsequently declining to revisit the programming orders
The fact that the judge’s orders gave the appellant permission to advise if the timetable that had been set was not suitable to him did not mean that the Court had in some way bound itself to accede to whatever alternative course the appellant might propose. All that that permission entailed was to consider afresh the timetabling issues that had been dealt with in Mr Lauro’s absence. There was no reason why, having done so, it was not open to the Court to decide to adhere to the course previously embarked upon. To the extent that Mr Lauro contends otherwise, the contention lacks a material prospect of success.
Failure to determine threshold issue
I turn to the question whether, at either of the hearings, the judge’s procedural orders are vitiated by relevant error of law on the basis that there was a need to determine a threshold issue ahead of the listing of the respondent’s interlocutory application.
There are several reasons why an argument to that effect lacks material prospects of success.
First, although I need not decide it, it is not clear to me that the applicant’s interlocutory application actually properly crystallises an issue for the Court’s resolution.
As I explained in an earlier judgment, the appellant named as the respondent to the proceeding ‘Minter Ellison’, for which it gave a particular ABN.[37] If and to the extent that the appellant may contend that a differently constituted partnership is the only partnership by whom any legal fees are recoverable, and against whom it seeks a taxation, the appellant could have applied to join that partnership or sought that it be substituted as a party in lieu of the respondent. Alternatively, perhaps, the appellant might seek to contend that invoices sent to him by the respondent are not payable because there was no respondent with the retainer.[38] In the circumstances just described, an issue about the identity of the partnership (if any) with whom the appellant entered into a retainer might be ripe for preliminary determination. The appellant’s application, however, appears to pose for determination the question ‘who is the correct respondent’? On one view, framed in that way, it seeks an advisory opinion. Suffice to say, there is at least a question about the competence of the interlocutory application as it is presently framed. At all events, it is not clear that it raises a threshold issue that is ripe for determination. It may also be observed that paragraph 3 of Mr Lauro’s application, which calls upon the ‘proper respondent’ to do certain things, is problematic.
[37] Lauro v Minter Ellison (A Firm) (No 2) [2025] SASC 90 at [21]-[22].
[38] This, however, would be subject to considering whether, as the respondent contends, that issue is foreclosed by a binding judgment in its favour in proceedings DCCIV-13-1810 which, it submits, was in respect of many of the invoices the subject of the costs adjudication proceeding. I need not resolve that issue.
However, putting to one side these matters, and accepting that identifying the proper respondent to the application might be logically anterior to a consideration of whether an extension of time is necessary (and if so, should be granted), it remains difficult to see that there is any reason of principle why both applications could not be the subject of submissions on the same day.
If the judge were to find that it was necessary and appropriate to join or substitute a different party, in all likelihood, the judge would not in fact decide the timing question. In that circumstance, there is little reason to think that the appellant would be prejudiced by the Court having received submissions on the question on behalf of a partnership that is not a proper respondent to an application for a taxation. There is no reason to think that any submissions would be made of a kind or character that would be impossible later to ignore if that were the appropriate course to adopt.
Moreover, the decision whether to list and determine one application before another, or to list two applications but decide them in a particular sequence, is a matter of case management in the discretion of the judicial officer in question. Even if I were positively persuaded that it would have been preferable to list one application before the other (and I am not), it would not follow that the judge’s discretion to proceed as she did was vitiated by relevant error.
In my view, an argument that the judge erred by failing to appreciate that the appellant’s application had to be determined as a threshold issue, and before the respondent’s application was listed, lacks material prospects of success. In reaching this conclusion I have not found it necessary to embark on the merits of any question about the proper claimant for costs or the proper respondent to any taxation of costs.
Conclusion
The various grounds upon which the appellant wishes to challenge the procedural orders made on 27 June 2024 and 10 July 2024 lack material prospects of success with the result that the appeal proposed in respect of those orders has insufficient prospects of success to warrant their reconsideration on appeal. Further, the proposed appeal against those orders does not raise a question of general importance. Finally, there is no substantial injustice to the appellant if leave is refused. It is therefore not in the interests of justice to grant leave to appeal. The orders sought to be challenged were in any event overtaken by the appellant’s recusal application and are spent.
The fact that the application for leave is made nearly a year after the orders have been made would also be a powerful reason to decline to extend time. The only explanation that is given for the delay is that the appellant, as an unrepresented litigant, did not appreciate that the recusal application would not encompass within it a challenge to the earlier procedural orders. There is no suggestion that the delay in seeking distinctly to challenge the earlier orders involved a forensic decision. Because of the delay caused by dealing with the recusal application, if there were proper grounds now to revisit the earlier orders, doing so would not occasion much further delay in the progress of the action towards final resolution. Accordingly, notwithstanding the length of the delay, if the application for leave to appeal were otherwise meritorious, I might have been inclined to extend time.

However, because I am firmly of the view that leave to appeal against those orders should not be granted, it would be futile to grant the extension of time, and I decline to do so.
Had an extension of time and leave to appeal been granted in respect of these grounds, I would have dismissed the grounds.
The challenge to the judge’s decision not to recuse herself
Whilst it will be necessary to consider the matters relied upon by the appellant in combination, it is convenient to address the particular matters upon which Mr Lauro relied in contending that the judge conducted herself in a way that justifies a conclusion of apprehended bias.
Hearing on 16 May 2024
First, the appellant points to the judge having asked Mr Lauro during the hearing on 16 May 2024 whether his expression of a desire to avoid another appeal being necessary was a threat.[39] Mr Lauro contends that this exchange alone or in combination with other matters has led to the actuality or appearance of an irreparable ‘contest’ between the appellant and the judge.
[39] Appeal grounds [3].
In my view, that contention cannot be accepted. Mr Lauro responded to the judge’s question whether his submission was a threat in the negative and the hearing proceeded in an unremarkable fashion. It is difficult to see the basis upon which the posing of the question might lead a fair minded lay observer to conclude that the judge had formed or was forming some predisposition against Mr Lauro that might cause her to decide any contest between his father and the respondent other than by reference to the merits.
On the appeal the respondent submitted that the submission of Mr Lauro which prompted the judge’s question was an inappropriate in terrorem reference to an appeal. It was submitted the fair minded lay observer would form an adverse view not of the judge’s neutrality but of Mr Lauro’s conduct.
Mr Lauro’s explanation on appeal for what he was seeking to convey by the submission was:
The point was that as had happened before Judge Dart, the issue of standing was being overlooked. It was not being taken as being fundamental, as I said on that occasion, so, my reference to not wanting to be in a situation where another appeal may be necessary was exactly on the point of this issue as being in existence. It’s not a new issue and it needs to be addressed in some way, and basically, I didn’t want the judge to fall into error by overlooking that point, which might have resulted in another appeal.
As that submission suggests, the appellant had earlier appealed against a decision by Associate Justice Dart not to recuse himself in this matter.[40] Amongst the complaints advanced on appeal was that the judge had made timetabling orders in relation to the time question in parallel with his consideration of the application for recusal, but had not progressed a preliminary issue that Mr Lauro considered to be an important threshold issue, namely, the identity of the proper respondent.[41] Whilst McDonald J upheld the appeal, her reasons did not turn upon accepting that the judge’s failure to determine particular issues in a particular sequence might give rise to a perception of bias.
[40] Lauro v Minter Ellison (A Firm) [2024] SASC 48.
[41] Lauro v Minter Ellison (A Firm) [2024] SASC 48 at [20] (fn 7) (McDonald J).
To the extent that Mr Lauro’s submission to the judge implied that a failure to deal with the issue he wanted to raise about the identity of the proper respondent had resulted in an earlier appeal being allowed, it was therefore not justified. Even if it had been correct, on one view, a submission that a judicial officer should decide a matter in a particular way in order to avoid the need for an appeal may be seen as impertinent, or at least mildly disrespectful. Many judicial officers might, in the case of a self-represented litigant or lay representative, let the matter pass. Others might indicate their displeasure. The judge here asked a question. Mr Lauro answered it. The hearing continued. Even accepting that the question may have been asked in a tone that suggested a degree of irritation or disapproval, or even accepting that the question was rhetorical, standing alone, it could not cause a fair minded lay observer to entertain some abiding concern about the judge’s neutrality.
In a busy court, robust exchanges may occur. There may be an element of tension between bench and bar. Judges should strive to avoid truculence and discourtesy but occasional displays of sarcasm, anger or frustration do not necessarily give rise to an appearance of bias. Moreover, there is no prohibition against a judge conveying their initial (negative) reaction to something that is said, or expressing dissatisfaction with the performance of an advocate or party.[42]
[42] See Anderson v National Australia Bank [2007] VSCA 172 at [92]-[95] (Nettle JA), referring, inter alia, to Budd v Kambah Tea Tree Plantations Pty Ltd [2001] NSWCA 180 at [102]-[103] (Heydon JA).
A fair minded lay observer is neither complacent nor unduly suspicious.[43] Indeed, a fair minded observer may be taken to understand that, on occasion, both judge and counsel will express themselves in a manner that is to be regretted.[44] It is only where the conduct demonstrates such hostility or rigidity that a fair minded observer might doubt the judge’s preparedness to properly consider competing arguments that the conduct gives rise to apprehended bias.[45]
[43] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148 at [47] (Kiefel CJ and Gageler J).
[44] IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd (1999) 78 SASR 151 at [194] (Doyle CJ, Prior and Mullighan JJ agreeing).
[45] See, eg, the discussion in IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd (1999) 78 SASR 151 at [173]-[174] (Doyle CJ, Prior and Mullighan JJ agreeing).
In the present case, I am firmly of the view that there was nothing about the judge’s question, in context, which was reasonably indicative or suggestive of bias from the perspective of a fair minded lay observer.
In particular, I consider that the appellant’s submission to me that the judge’s remark meant he had been treated ‘almost as a terrorist by being asked ‘Is that a threat?’’ significantly overstates the intensity and pointedness of the remark.
To the extent that Mr Lauro submitted that this exchange marked a distinct change in the judge’s position about how the procedural or interlocutory issues should be dealt with, I do not accept the submission. I would not read the judge’s earlier reference to proceeding ‘stage by stage’ as foreclosing that issues might be listed for hearing together but determined in a particular sequence. However, even if there was a change in position, I see no reason to attribute this to any umbrage it might be supposed that the judge took from Mr Lauro’s submission.
Hearing on 27 June 2024
Next, insofar as Mr Lauro relies upon the judge’s preparedness to proceed in his absence at the next hearing,[46] I reject the contention that this might have caused a fair minded lay observer to consider that the judge might deviate from the merits of any substantive question for decision. The mere fact that the judge did not embark upon an inquiry into Mr Lauro’s reasons for not remaining in the courtroom, or simply stand the matter over to a later date, would not be interpreted as reflecting or manifesting any predisposition against Mr Lauro but rather as reflecting a desire to progress the matter rather than allow it to stagnate. The making of a direction that permitted Mr Lauro to revisit the orders if he was not content with them would assuage any concern that a fair minded lay observer might otherwise entertain.
[46] Appeal grounds [2.6].
Emails sent from judicial assistant to Associate Justice Dart
The appellant complained that ‘at least up to 8 July 2024’, the ‘Chambers of Dart J continue to remain involved’ in the action. That contention was apparently based on emails sent from a judicial assistant described as assisting Associate Justice Dart. There is nothing in the complaint. There is no basis to infer that the judicial assistant was corresponding on behalf of Associate Justice Dart. Judicial assistants frequently assist different judicial officers, including Auxiliary Associate Justices.
Hearing on 10 July 2024
Insofar as the appellant complains that the judge’s conduct of the hearing on 10 July 2024 or the orders made on that occasion are said to give rise to a perception of bias, I reject the submission.[47]
[47] Appeal grounds [11], [12], [18.2].
For reasons I have given, the judge had a broad discretion to exercise in relation to the programming of interlocutory applications. The course she adopted was not infected by any error of principle. In those circumstances, I fail to see how a fair minded lay observer might reasonably conclude that the judge might not be prepared to decide the applications, or the substantive issues in any taxation, other than by reference to her perception of the merits.
Mr Lauro’s complaint that, during the course of the hearing, the judge asked him to explain what he was hoping to achieve by the application, should be rejected. It was not productive of an apprehension of bias. Questions of that kind are routinely asked. If anything, fairness demands that a judge who does not fully understand what is being proposed asks the party to explain the position.
Insofar as the appellant complains that the judge accepted arguments made by the respondent relating to the identity of the ‘proper respondent’, so as to found a conclusion or concern about pre-judgment, I reject the argument. The judge’s remark, at one point, that the submission ‘makes sense’, was immediately followed by the statement ‘I think – I follow what [the respondent’s counsel] is saying’. Mr Lauro immediately stated that the proposition in question was wrong. The judge then said ‘Okay. So this is not an argument today. It’s only listed for directions and I think … we’re getting too far into the weeds of it’. The judge was clear that she was not purporting to hear, let alone resolve, the detail of any substantive argument.
Insofar as the appellant complains that the judge did not sufficiently engage with the appellant’s arguments about the sequence in which issues should be determined, and that that shortcoming might cause a fair minded lay observer to be concerned that the judge’s approach involved or would involve a deviation from the merits, I reject the complaint. Mr Lauro was given a sufficient opportunity to make arguments about the way in which the matter should proceed. There was no need for lengthy or detailed treatment of these issues by the judge. On the contrary, issues relating to the sequence and programming of applications call for concise and decisive treatment. Otherwise, as much time would be occupied in debating how and when issues should be resolved as it would be in resolving them. As it happens, the hearing lasted for in excess of half an hour.
Mr Lauro submitted that at the conclusion of the hearing on 10 July 2024, the judge ‘stormed out’ of the courtroom, and that this led his concerns to ‘mount up’. The evidence before me does not support the submission.[48]
[48] Mr Lauro’s affidavit affirmed on 25 July 2024 (FDN 53 in the original proceedings) simply stated that the judge ‘abruptly ended the hearing by exiting’ the courtroom.
Other concerns expressed by Mr Lauro
In his submissions on recusal, Mr Lauro also made submissions expressing a concern that the judge had an unfamiliarity with the legal principles or issues that would be required to be considered in the proceedings. These concerns, as well as the submissions in which they were articulated, were misplaced. They can and should be put to one side.
Contention that reasons on recusal suggest bias
Mr Lauro complained about a reference to the appellant in the first paragraph of the judge’s reasons of 29 January 2025 for declining to recuse herself.[49] That paragraph read as follows:
Between May 2011 and early 2013, Minter Ellison acted for Natale Lauro in relation to various civil proceedings arising from the construction of a residential property.[50] Mr Lauro is now elderly and infirm and his son Eric Lauro has since been appointed as Mr Lauro’s litigation guardian.[51]
[49] Appeal grounds [2.4].
[50] Lauro v Minter Ellison (A Firm) [2024] SASC 48 at [2].
[51] Lauro v Minter Ellison (A Firm) [2024] SASC 48, see fn 1.
Mr Lauro characterised this as a personal attack on his father by ‘inferring that he is infirm by reason of his age’. Quite obviously (from the footnote), the judge’s summary of the background was taken from the earlier decision on appeal of McDonald J, who also described the appellant as ‘infirm’. As well, the statement does not involve an inference of infirmity from age. It was said that the appellant was elderly and infirm. If and to the extent that that is not an entirely accurate description of the appellant’s condition, it can scarcely be described as a personal attack. It could not possibly cause a fair minded lay observer to form any concern about the judge’s impartiality.
In a chronology filed in support of the appeal, the appellant stated that:
29/01/2025 Pursuant to a Judgment delivered on this date, Auxiliary Associate Justice Florentzou makes Orders (FDN 63) refusing to recuse herself, and engages in ageism against the Appellant.
That is not appropriate content for a chronology, and taken as a submission, it is hyperbolic and unsustainable.
To the extent that the appellant’s notice of appeal raises other criticisms of the judge’s reasons of 29 January 2025,[52] there is little utility in addressing them in detail. I have reconsidered the various grounds for the contention of apprehended bias and found that the judge was correct not to accede to the application. A complaint of inadequate reasons would not of itself result in the appeal being allowed unless, in some way, the inadequacy was such as to itself suggest bias. In my view that is not the case.
[52] Appeal grounds [10.2].
Subsequent recusal application
On 3 March 2025, a further application for recusal was filed. Mr Lauro’s supporting affidavit stated that:
In light of the foregoing Reasons for Decision, additional and renewed apprehension of bias has arisen, including due to the fact that only procedural issues were (mis)considered, and conduct issues (warrantying [sic] a compliant to the Judicial Conduct Commissioner) were not addressed.
In the premises, at the hearing scheduled for tomorrow, 3 March, I will again seek her Honour’s recusal …
The contention that only procedural issues were addressed in the judge’s reasons is not correct. The judge addressed the exchange during the hearing on 16 May 2024 about which a complaint was raised in her reasons. To the extent that any other conduct issues were raised but not dealt with in the reasons, I have dealt with them in my reasons and found that they did not warrant recusal.
At the hearing on 4 March 2025 the judge expressed her view that the proper course if there was dissatisfaction with her ruling was to appeal. She dismissed the renewed application for recusal but granted the appellant leave to appeal against that decision and the earlier decision to decline to recuse herself.
In the particular circumstances of this case, in my view, the judge was not obliged to give more detailed consideration to the renewed bias application. Relevantly for present purposes, the summary approach that she took to the renewed application was not, in context, indicative of actual bias nor a foundation for a reasonable apprehension of bias.
Suggestions of a complaint in respect of the judge
In the course of oral submissions on the appeal, Mr Lauro stated that there is a ‘complaint against the judge’. The nature, detail and timing of any such complaint was not, so far as I am aware, revealed in any evidence, save the cryptic statement in Mr Lauro’s 3 March 2025 affidavit that the judge’s conduct was such as to warrant a complaint. There is no suggestion that the judge has been notified of a complaint much less reacted adversely to it. In those circumstances, for the reasons I gave in an earlier judgment,[53] I attach no weight to this contention.
[53] Lauro v Minter Ellison (A Firm) [2025] SASC 77 at [87]-[88].
If the basis for the complaint is simply the conduct which, by these reasons, I have found would not cause a fair minded observer to form any concern about the judge’s neutrality, to treat the making of the complaint as grounds for recusal (without more) would be to entitle a litigant to ‘veto judges at will’.[54]
[54] CM v Secretary, Department of Communities and Justice [2021] NSWCA 244 at [8] (Macfarlan, Brereton and McCallum JJA).
Consideration of matters in combination
In these reasons I have addressed the main matters relied upon in the notice of appeal, written submissions and oral submissions of the appellant.[55]
[55] To the extent that there are some aspects of the grounds of appeal I have not explicitly addressed, such as Appeal grounds [10.2], I indicate that I have considered and rejected the grounds as insubstantial and unconvincing.
It is important not to be dismissive of the possibility that the cumulative effect of a number of occasions would be to raise a reasonable apprehension of bias even though, considered in isolation, each matter would not justify that conclusion.
I do not consider that the various matters raised by Mr Lauro might, in combination, cause a fair minded observer reasonably to apprehend that the judge will deviate from her assessment of the merits in progressing the proceeding to a hearing or conclusion.
Disposition
There is a question about whether, notwithstanding that the judge granted Mr Lauro leave to appeal against her decisions on 29 January 2025 and 4 March 2025 not to recuse herself, those decisions are capable of appeal.[56] I need not resolve that question because I am satisfied that any appeal on those grounds is liable to be dismissed on its merits.
[56] Hanna v Flinders University [2025] SASC 81 at [77]-[81].
In respect of the other challenged orders, for the reasons I have earlier given, because the grounds upon which they are sought to be challenged lack sufficient merit to warrant a grant of leave to appeal, I would refuse leave and an extension of time within which to appeal against those orders.
The result is that the appellate proceeding will be dismissed.

ANNEXURE
Grounds of appeal in Notice of Appeal – Revision 2
IError in failing to recuse herself for apprehended bias
1. The learned Judicial Officer erred in finding that a fair-minded lay observer would not reasonably apprehend that she might not bring an impartial and unprejudiced mind to the determination of the issues in the originating proceedings.
2. The learned Judicial Officer failed to consider that the Appellant’s concerns about bias were exacerbated by the learned Judicial Officer’s judicial conduct in, and case management of, the originating proceedings including, but not limited to:
2.1    not considering relevant matters;
2.2    considering and giving weight to irrelevant matters;
2.3    prejudging matters that have not been argued;
2.4    inferring at [1] of her judgment delivered on 29 January 2025 that the Appellant is infirm by reason of his age, without basis;
2.5    failing to take action with respect to Respondent’s obligation and failure to serve filed documents, as raised by the Appellant’s Litigation Guardian at the hearing on 4 March 2025;
2.6    failing to adequately address or explain the rationale for procedural decisions that gave rise to reasonable apprehension of bias, including orders made without the presence or participation of the Appellant or his Litigation Guardian.
3.The learned Judicial Officer failed to give weight to the reasonable apprehension of bias arising from her remarks during hearings, including her indication that the Appellant’s reference to an appeal was a “threat,” which displayed a pre-judgment of the issues.
4.The learned Judicial Officer failed to:
4.1    properly apply the principles in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) by, among other things, not adequately identifying and addressing the logical connection between the impugned conduct and the apprehension of bias;
4.2    apply the cumulative approach to assessing apprehended bias, ignoring the totality of circumstances which would lead a fair-minded lay observer to apprehend bias.
II.Failure to determine the correct identity of the Respondent before proceeding
5.The learned Judicial Officer erred by failing to first hear and determine, as a preliminary threshold issue, the argument on whether the correct Respondent was properly named and was appearing or duly represented in the originating proceedings, and by failing to order that the Respondent provide information consistent with the Uniform Civil Rules 2020 (SA) regarding the identity of the relevant legal entity/ies associated with the retainer.
6.The learned Judicial Officer mischaracterised and prejudged the Appellant’s argument by agreeing with the Respondent that the retainer was with “Minter Ellison (South Australian Partnership)” when documentary evidence including the underlying retainer, indicated that the retainer was with the larger national entity.
7.The learned Judicial Officer failed to give proper weight to the Appellant’s affidavit evidence on this point, and her refusal to first hear and determine this preliminary threshold issue prejudiced the fairness of the proceedings.
III.     Denial of procedural fairness in Directions Hearings
8.At the hearing on 27 June 2024, the learned Judicial Officer erred, thereby denying the Appellant procedural fairness, by:
8.1    commencing the hearing in violation of the “15-minute” rule, which violation allowed the purported representative for the Respondent to make unopposed substantive submissions and/or to influence the learned Judicial Officer in the absence of any representative for the Appellant;
8.2    failing to duly acknowledge that the Appellant’s Litigation Guardian had vacated the Courtroom due to safety concerns and had requested an adjournment, thereby denying the Appellant’s Litigation Guardian the opportunity to present the case and respond to the proposed Orders, which were subsequently made adverse to the Applicant’s interests.
9.At the hearing on 10 July 2024, the learned Judicial Officer erred, thereby denying the Appellant procedural fairness, by failing to address the concerns raised by the Appellant’s Litigation Guardian regarding the Orders made on 27 June 2024, despite those Orders expressly providing for the opportunity to do so.
10.     At the hearing on 4 March 2025, the learned Judicial Officer:
10.1 erred, thereby denying the Appellant procedural fairness, by dismissing in its entirety the urgent Application filed by the Appellant’s Litigation Guardian (FDN 66) without hearing argument on all the Orders sought or giving reasons for refusing the renewed recusal request;
10.2 failed to provide adequate reasons for dismissal of the recusal application, or to order that voice recordings of the proceedings be provided at first instance, contrary to principles of transparency and procedural fairness and to mitigate the prejudice suffered by the Appellant’s Litigation Guardian.
IV.Prejudgment of the issues and failure to properly consider the Appellant’s submissions and evidence
11.At the hearing on 10 July 2024, the learned Judicial Officer erred in storming out of the Courtroom, thereby failing to address the Appellant’s submissions, including specific objections to references to the Minter Ellison (South Australian Partnership)’s challenged default judgment in other proceedings and concerns about the 27 June 2024 orders, notwithstanding that those Orders purported to provide an opportunity to vary them.
12.The learned Judicial Officer erred in pre-judging key issues, including the proper identity of the respondent and the basis for taxation of costs, without properly engaging with the Appellant’s submissions.
13.The learned Judicial Officer failed to properly consider the Appellant’s affidavit of facts, which raised concerns about the management of the proceedings, procedural fairness and irregularities arising therefrom.
V.Misapplication of the Law on recusal and apprehended bias
14.The learned Judicial Officer erred in failing to correctly apply the three-step test for apprehended bias in Ebner.
15.The learned Judicial Officer erred in failing to consider the cumulative effect of the procedural irregularities, judicial remarks and other conduct on a fair-minded lay observer’s perception of impartiality.
16.The learned Judicial Officer failed to properly consider the High Court’s guidance in Johnson v Johnson (2000) 201 CLR 488 regarding the appearance of justice being done.
17.The learned Judicial Officer erred in failing to apply the principle that procedural fairness requires a judicial officer to engage meaningfully with all submissions and Affidavit evidence before making case management decisions.
VI.Challenge to the Orders made on 27 June and 10 July 2024
18.The learned Judicial Officer erred in law and/or acted unreasonably in the exercise of her discretion by:
18.1 failing to first hear and determine the issue of the Respondent's standing as a threshold issue.
18.2 refusing, on 10 July 2024, to hear and determine the Appellant's request to vary the procedural timetable set on 27 June 2024, in circumstances where the learned Judicial Officer had permitted the Appellant to notify the Court by close of business on 5 July 2024 if the relevant timetable was unsuitable to the Appellant, and the Appellant duly did so.