Montenegro v Nguyen
[2025] TASSC 34
•23 June 2025
[2025] TASSC 34
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Montenegro v Nguyen [2025] TASSC 34 |
| PARTIES: | MONTENEGRO, Cesar |
| v | |
| NGUYEN, Nga Thi To | |
| MONTENEGRO, Luis | |
| FILE NO: | 2333/2024 |
| DELIVERED ON: | 23 June 2025 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 10 June 2025 |
| JUDGMENT OF: | Shanahan CJ |
| CATCHWORDS: |
Courts and judges – Judges – Disqualification for interest or bias – Particular grounds – Bias by association or prior relationship – Appeal against Associate Judge’s refusal to recuse himself on basis of alleged apprehended bias where appellant contended a personal relationship between Associate Judge and respondent – Appellant’s allegation supported only by representations made by respondent in recorded phone call – Lack of evidentiary foundation supporting any apprehension of bias – Existence of relationship denied by Associate Judge – Appeal dismissed.
Aust Dig Courts and Judges [45]
Charisteas v Charisteas [2021] HCA 29, 273 CLR 289; Re JRL; Ex parte CJL (1986) 161 CLR 342; Laws v
Australian Broadcasting Tribunal (1990) 170 CLR 70, applied.
Appeal and new trial – Interference with discretion of court below – Particular cases – Control over proceedings – Other cases – Appeal against Associate Judge’s refusal to recuse himself on basis of purported failure by Associate Judge to afford appellant an opportunity to make submissions on recusal application – Associate Judge gave appellant every opportunity to be heard on question of recusal – Appeal dismissed.
Aust Dig Appeal and New Trial [59]
REPRESENTATION:
Counsel:
Appellant: In person Respondents: In person
| Judgment Number: | [2025] TASSC 34 |
| Number of paragraphs: | 81 |
Serial No 34/2025 File No 2333/2024
CESAR MONTENEGRO v NGA THI TO NGUYEN and LUIS MONTENEGRO
| REASONS FOR JUDGMENT | SHANAHAN CJ |
23 June 2025
1 The appellant, Cesar Montenegro, by notice of appeal dated 11 April 2025 appeals from the orders of his Honour Associate Justice Daly made on 2 April 2025. The respondents are Nga Thi To Nguyen and Luis Montenegro, Cesar Montenegro's father. None of the parties are legally represented, albeit the appellant indicated in the course of submissions that he was legally trained and was currently seeking re-admission.
2 This is an appeal from the associate judge in respect of an interlocutory judgment. Section 191B of the Supreme Court Civil Procedure Act 1932 (Tas) ("Act") provides:
"191B Effect of, and appeal from, orders of the Associate Judge
(1) Subject to the Rules of Court, any order or decision made or given by the Associate Judge sitting in chambers or in court in the exercise of a power conferred on him or her by this Act is as valid and binding on, and is enforceable in the same manner against, all parties concerned as an order or decision made or given by a judge sitting in chambers or in court. (2) A party affected by an order or decision of the Associate Judge may, within such time as is prescribed by the Rules of Court and subject to any conditions so prescribed, appeal —
(a) from an interlocutory order or decision, to a judge sitting in chambers or in court; or (b) from any other judgment, order or decision, to the Full Court. (3) The Associate Judge constitutes the Court for the purpose of the exercise of his or her powers and an appeal from a decision or order of the Associate Judge, whether given in court or in chambers, is to be an appeal by way of rehearing. (4) On the hearing of an appeal from a decision or order of the Associate Judge, whether given in court or in chambers, a judge sitting alone, whether in court or in chambers, has the same jurisdiction and powers as the Full Court has in hearing an appeal against a decision or order of a judge."
3 Such an appeal is dealt with at r 680A(2) of the Supreme Court Rules 2000 ("Rules"). The appellant seeks to appeal interlocutory rulings made by the associate judge on 2 April 2025 (rr 680A(4)– (15) apply, see r 680A(3A)). In addition to s 191B(4) of the Act set out above, r 693(1) provides that "a judge hearing an appeal has all the powers conferred on the Full Court by rule 672".
Background
4 The background to these proceedings are set out in paragraph 1 of a document endorsed on the writ filed by the appellant (plaintiff) on 5 August 2024 (said to be by way of a statement of claim) which describes, inter alia, defamation proceedings in this Court, litigation said to have been settled on or about 12 May 2023. The appellant's substantive claim in this Court is brought against the first and second respondents in respect of that settlement and is said to sound in the tort of intimidation, unlawful purpose conspiracy, collateral abuse of process, malicious prosecution and fraud. The associate judge's
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decision is an interlocutory judgment as described at r 680A(1) in that it was not a "final judgment" as
defined in that rule.5 The writ is not in proper form but rather a jumbled combination of allegations, evidence and submissions, and details a plethora of litigation between the parties to this appeal and family members. The papers filed by the parties in this matter are redolent with misapprehensions as to the purpose of the documents they have filed and thus submissions appear in the document endorsed on the writ and in the various affidavits filed in the proceedings.
6 To understand the nature and substance of this appeal, some introduction to the myriad of proceedings between the parties referenced in the writ is required. The appellant's contentions in the writ included allegations of malicious prosecution and abuse of process in respect of proceedings initiated by the respondents in the Magistrates Court of Tasmania before the then Deputy Chief Magistrate (as the associate judge then was) for an Apprehended Violence Order against the appellant, however for reasons discussed below (see pars 51–53 below) it is likely that the proceedings were in fact for a restraint order under Part XA of the Justices Act 1959 (Tas).
7 In the course of the proceedings in this Court the appellant filed an interlocutory application on 7 February 2025 which sought, amongst other matters, that the associate judge who heard the interlocutory application recuse himself ("Appellant's Application"). That application sought the following orders:
"1 His Honour Judge Daly … [the Associate Judge] … is recused. 2 Declaration that the first defendant Nga Nguyen … [and the first respondent in this appeal] … is a vexatious litigant pursuant to the Vexatious Proceedings Act 2011 (TAS), Section 5(f); 6. 3 Declaration that the second defendant Luis Omar Montenegro … [and the second respondent in this appeal] …is a vexatious litigant pursuant to the Vexatious Proceedings Act 2011 (TAS), Section 5(f); 6."
8 In support of the Appellant's Application the appellant filed and relied upon his affidavit affirmed at Paramatta on 6 February 2025 ("Appellant's Affidavit"). In paragraph 1 of the Appellant's Affidavit the appellant stated:
"Respectfully, I can no longer permit Your Honour continue adjudicating these proceedings. Your Honour is under a direct conflict of interest actively assisting the defendants whilst denigrating and destroying the plaintiff's claim with repeated characterisations of 'abuse of process' and 'vexatious' without evidence as no evidence has yet been filed by the plaintiff".
The recording
9 The basis for the allegation against his Honour was put at paragraph 2 of the Appellant's
Affidavit:
"According to Nga Nguyen … [the first respondent] … Your Honour is friends with Nga Nguyen and you have been actively assisting Nga Nguyen in her fraudulent AVO no. 90872/2022 and helped her with her papers and wanted her to extend the AVO and urged her to extend it: Exhibit CM1 at 12-13 and ASV Evidence below."
10 Exhibit "CM1" was a red USB containing a series of nine audio recordings. An extract from what is described as the "plaintiff's ASV evidence recorded at 2023_11_26-22-42-59mp3 at 23 mins" ("USB") was set out verbatim at paragraph 19 of the Appellant's Affidavit.
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11 The allegations in the Appellant's Affidavit in this regard are hearsay in that they rely upon what the appellant says that Ms Nguyen, the first respondent, said to him (and which was secretly recorded by the appellant). Hearsay evidence is admissible on an interlocutory application (r 502(1) of the Rules as long as the deponent adduces evidence as to its source), and the effect of s 64 of the Evidence Act 2001 is noted (ie an exception to the hearsay rule in civil proceedings where the person who made the representation has been or is to be called to give evidence).
12 The Appellant's Affidavit (D11) was taken as read with the exception of the USB (Transcript 2 April 2025, "T" 3). The USB contained nine audio recordings which had been recorded by the appellant of exchanges with the first respondent without her knowledge (Transcript, "T" 4–5, each page of the transcript also has a hand written page number in the Appeal Book, "AB" and the corresponding page numbers are AB 17-18).
13 The appellant has used the Appellant's Affidavit both as a means of seeking to adduce evidence but also as a platform for making submissions, and whilst it is entirely inappropriate that an affidavit be used for the purpose of making submissions, I note that the appellant whilst legally trained is unrepresented.
14 The appellant's submissions in the Appellant's Affidavit included assertions about how the associate judge had dealt with the proceedings which culminated in the submission at paragraph 18 of that affidavit that:
"It will be submitted to this Court that Your Honour has exhibited actual and/or apprehended bias in favour of the defendants … [the respondents to this appeal] … to the prejudice of the plaintiff … [the appellant]. Your Honour does not bring an impartial mind to the proceedings and therefore can no longer act in these proceedings. It is readily apparent your partisanship towards the defendants."
15 In the end, the notice of appeal at ground one only raises the question of apprehended rather than actual bias. Whilst the appellant during the hearing of the appeal made references to actual bias, he accepted that the appeal is brought solely in respect of, and engages the test for, apprehended bias. The matters relied upon by the appellant in that regard focus upon the representations set out at paragraph 19 of the Appellant's Affidavit:
"On 26 November 2023 at on or about 23:28, Nga Nguyen alleges Your Honour had illegal ex parte communications with her, whilst the AVO was active in matter no.90872/2022, telling her to extend the AVO that was finishing – the very AVO the subject of these proceedings. Extracted below from the plaintiff's ASV Evidence … [the Appellant's Affidavit then sets out verbatim a transcript of portions of the audio recording or recordings]".
16 The heart of the appellant's case on recusal before the Associate Judge was then developed at paragraphs 20–23 of the Appellant's Affidavit (underlining omitted):
"20
That is outrageous and judicial misconduct if it is true and is a matter for the Judicial Commission to interrogate. A Deputy Magistrate interfering with an active AVO talking to a witness and complainant in the case ex parte without the respondents' (sic) presence and urging her to extend the AVO and offering to do the papers. And then that Deputy Magistrate becomes a Supreme Court judge on 4 April 2024 and is now currently assisting his friend Nga Nguyen and … Luis …."
21
It will be submitted to this Court that the veracity of Nga's comments are irrelevant. We do not know if it is true because Nga Nguyen lies … It will be submitted that applying the High Court authority in Ebner the reasonable lay observer would conclude in these circumstances that Your Honour does not
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bring an impartial mind to these proceedings. Therefore, the mere appearance
or apprehension of bias is sufficient for this application to succeed.22 Your Honour was required to disclose to all parties if any personal relationship existed between him and Nga Nguyen. I am deeply troubled with these circumstances and will refer them to the Judicial Commission for proper interrogation.
23 Accordingly, Your Honour can no longer take any substantive part in these proceedings and must step down."
17 Turning then to the conduct of the interlocutory hearing on 2 April 2025.
18 There was some doubt below as to whether the Court had received the USB and it does not appear to have been before the associate judge, who had not listened to the audio recordings and who caused to have inquiries to be made whether it was received by the Court (T 5, AB 18). No notice had been given to the associate judge that the appellant intended to rely upon provisions at s 5(3)(b)(i) of the Listening Devices Act 1991 (Tas) and/or s 7(3)(b)(i) of the Surveillance Devices Act 2007 (NSW) for the admission of the USB into evidence where there was no evidence before the Court as to the circumstances in which the audio recordings were made.
19 In this instance, the appellant stated that he was "a New South Wales resident" (T 5, AB 18) raising doubt as to where the audio recordings had been made and in what context, thus putting the applicability of the Tasmanian legislation in issue. In any event there was no evidence as to where, how or why any of the nine audio recordings on the USB had been made other than the appellant's assertion from the bar table that those recordings were "legal according to those provisions that I have just stated in the Surveillance Devices Act and the Listening Devices Act" (T 7, AB 20).
20 The onus was on the appellant to establish the admissibility of the USB. It is not for the court to choose between legislation drawn from different States, nor can a court act on the exceptions to s 5(1) of the Listening Devices Act in the absence of evidence going on the basis for its admission when a party seeks to rely upon s 5(3)(b)(i).
21 Section 5(1)(b) of the Listening Devices Act prohibits the use of a listening device to record a private conversation to which the person recording the conversation is a party:
"(1) A person shall not use, or cause or permit to be used, a listening device –
(a) to record or listen to a private conversation to which the person is not a party; or (b) to record a private conversation to which the person is a party."
22 There are a number of exceptions to the prohibition, including at subsection 5(3)(b)(i):
"…
(3) Subsection 1(b) does not apply to the use of a listening device by a party to a
private conversation if –…
(b)
a principal party to the conversation consents to the listening device being so used and –
(i)
the recording of the conversation is reasonably necessary for the protection of the lawful interests of that principal party …"
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23 It is immediately clear that a court when faced with an application to rely upon such a provision to admit an audio recording that had been recorded without the knowledge of a party to the private conversation would need to have evidence before the court including: (i) that the audio recording in question was a recording to which the Tasmanian legislation applied, and (ii) as to the factual foundation for the legality of the recording addressing the integers legislated for at s 5(3)(b)(i).
24 The first respondent in the course of the interlocutory hearing informed the associate judge that she was unaware of being recorded when the nine audio recordings were made (T 11, AB 24) and confirmed that by submission in the course of the hearing of the appeal.
25 The appellant specifically accepted that the circumstances in which the audio recordings were made were not addressed in the Appellant's Affidavit (T 6, AB 19), the only affidavit material filed in support of the Appellant's application. That matter was raised by the associate judge on several occasions and the appellant was invited to make submissions, which he did. None of those submissions addressed the absence of evidence as to the circumstances in which the recordings were made.
26 It was only after the hearing on 2 April 2025, and prior to the hearing of this appeal, that the appellant has filed a further affidavit which seeks to establish the factual foundation for the admissibility of the USB (see the appellant's further affidavit sworn 29 May 2025, ("Appellant's Further Affidavit")). For the Appellant's Further Affidavit to be admissible it would have to be admitted on this appeal as further evidence, an issue I return to below.
27 The appellant also relied in the alternative upon s 7(3)(b)(i) of the Surveillance Devices Act 2007 (NSW). Section 7(1) of that Act creates an offence prohibiting the use of listening devices in New Soth Wales, and in different terms to the prohibition at s 5(1)(b) of the Listening Devices Act:
"7 Prohibition on installation, use and maintenance of listening devices
(1) A person must not knowingly install, use or cause to be used or maintain a
listening device--
(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or (b) to record a private conversation to which the person is a party. Maximum penalty--500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case)."
28 Section 7(3)(b)(i) provides for an exception:
(3) Subsection (1)(b) does not apply to the use of a listening device by a party to a
private conversation if …
(b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation--
(i) is reasonably necessary for the protection of the lawful interests of that principal party …".
29 Whilst s 7(3)(b)(i) of the New Soth Wales Act is in very similar terms to s 5(3)(b)(i) of the Tasmanian Act reliance on that provision by the appellant suffers from all the same deficits as have been set out above in respect of the Tasmanian legislation, albeit in the context of the provisions of the New South Wales legislation.
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30 The associate judge then put to the appellant that if the Court took the view that the USB should not be admitted (in the absence of evidence going to the circumstances in which the audio recordings were made), would the appellant accept that there was a full account of the conversations upon which he relied set out in his affidavit (T 7, AB 20). The appellant then specifically accepted that proposition, ie that there was a full account of the conversations that he relied upon set out in the Appellant's Affidavit whatever the disposition of the application to admit the USB (T 7, AB 20).
31 The effect of that concession by the appellant was that, despite the Court's refusal to admit the USB, all of the alleged representations by the first respondent relied upon by him were before the Court. A copy of the exchanges between the appellant and first respondent said to be recorded on the USB and relied upon by the appellant, have been extracted from the Appellant's Affidavit at paragraph 19 and appear as Annexure A to these reasons. In those circumstances the reception into evidence of the USB would have made no difference as the associate judge had the representations relied upon by the appellant before him, in the form of hearsay adduced by the appellant by affidavit as to the representations said to have been made by the first respondent to him.
32 It was only after offering the appellant an opportunity to be heard, that the associate judge ruled on the appellant's application to adduce evidence by the USB in the following terms (T 11, AB 24):
"… I'll make a ruling now. Firstly, I don't have any evidence, either at all or certainly not of a sufficient nature to enable the Court to conclude that this recording was reasonably necessary for anyone's protection, I'm assuming that the New South Wales Act is cognate with the Tasmanian Listening Devices Act s 5(3)(b), even if it's not per se illegal, somebody secretly recording a telephone conversation even if it was not illegal, which it would be in Tasmania if it was recorded here, probably is in New South Wales if its recorded there, but its evidence which should bot be admitted unless there is a good evidentiary basis for the reception of it and in this case there isn't.
What I propose to do, though given the significance of the issue that the evidence is tendered in support of, and noting Mr Montenegro's assertion that the things said in the conversations themselves are fully set out in his affidavit, the – it's the content of those communications that are important to the application for the Court to disqualify itself. I think it would be going too far to prevent him from putting his case to the Court that the Court should disqualify itself but I don't propose to admit the recording itself."
33 The important matter is that the associate judge entertained the significance of all of the representations relied upon by the appellant for the purposes the Appellant's Application in deciding whether he should recuse himself.
Nature of the appeal
34 This type of appeal is by way of rehearing (see s 191B(4) set out at [2] above), in which the appeal court re-determines the issues raised upon the hearing of the appeal as at the date of the rehearing, relying on the material that was before the court appealed from, subject to the exercise of any power to receive additional evidence: Fernando v Medical Complaints Tribunal (No 2) [2003] TASSC 139, 12 Tas R 337 per Blow J. Appellate error is not demonstrated by putting before an appellate court additional evidence which shows that a primary decision-maker made a decision in ignorance of relevant evidence which was not before that decision-maker: Cleaver v Powell [1979] Tas R 134; Green v Fletcher [1988] Tas R 59; Martin v Medical Complaints Tribunal [2006] TASSC 73, 15 Tas R 413.
35 The admission of further evidence on appeal requires leave of the Court, usually that leave is sought by application with supporting affidavit material. I have the Appellant's Further Affidavit which seeks to establish the factual basis for admitting the USB by addressing the conditioning requirements
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of the Tasmanian and New South Wales' Acts which allow such covertly recorded material by
exception.36 Fresh evidence is evidence which is discovered after the decision appealed against and that could not reasonably have been available at the hearing, whereas new evidence is evidence which was available to the accused, or which the accused could reasonably have been expected to produce at the hearing. The further evidence proffered by the appellant in the Appellant's Further Affidavit is new evidence which could have been produced at the hearing before the associate judge but was not.
37 The Full Court, with which the Court's powers in this appeal are contiguous, is able to receive further evidence on appeal, as distinct from fresh evidence, under s 48 of the Act. To admit such evidence the Full Court must be satisfied that the material exists; that it is relevant to the issues to be determined; and that it is likely to make a difference to the outcome of the appeal: Howlin v Clarence City Council [2013] TASFC 7 per Tennant J, with whom Blow CJ and Porter J agreed, at [16].
Grounds of appeal
38 It is convenient to now set out the grounds of appeal before me. There are four unparticularised
grounds:
"1 The primary judge correctly identified the common law test for apprehended
bias, and proceeded to incorrectly apply same.2
The primary judge erred in its (sic) application of section 7 of the Surveillance Devices Act 2007 (NSW) or section 5 of the Listening Devices Act 1991 (Tas), whichever is applicable, in not admitting the appellant's USB Audio evidence and associated materials embodied therein.
3
The primary judge miscarried in its (sic) discretion in not admitting the appellant's USB Audio Surveillance Evidence and the associated materials embodied therein.
4
The primary judge did not grant the respondent the opportunity to be heard with regards the appellant's application of 7 February 2025 itself, or with regard to the primary judge's strong denials of the first respondent's claims that the primary judge actively assisted her ex-parte in her restraint application no 90872/2022 in the Magistrates Court of Tasmania where the primary judge was the Deputy Chief Magistrate at the time, and thereby breached the respondent's right to procedural fairness."
Grounds 2 and 3
39 In this instance the admission of any further evidence as to the foundation of the representations relied upon by the appellant would have made no difference as all the relevant representations were, on the appellant's own admission, before the associate judge. There is no basis for the reception of the Appellant's Further Affidavit on appeal. The appellant indicated he accepted that conclusion during the course of the hearing of the appeal. It was on that basis that he indicated that grounds 2 and 3 of the grounds of appeal were not pressed.
40 Grounds 2 and 3 deal with the Associate Judge's refusal to admit the USB and for the reasons set out above, and the appellant's position adopted during the hearing of the appeal, I dismiss grounds 2 and 3.
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Ground 1
41 Turning then to ground 1. The attack on the primary judge's decision to refuse to recuse himself is brought on the basis of apprehended not actual bias. There are no particulars of this ground but the nature of the application is captured in the Appellant's Affidavit at paragraphs 20–23 set out above at paragraph 16. The appellant contends that a reasonable apprehension of bias in the associate judge emerges from the representations made to the appellant by Ms Nguyen, the first respondent, which he recorded and the associate judge's "post hearing conduct". He relies on written submissions titled "Appellant – Facts Contentions Submission" filed 30 May 2025 ("Appellant's Submissions" or "AS").
42 It is accepted by the appellant that the primary judge identified the correct legal principles that apply upon an application to a judicial officer to recuse him or herself, these principles are well established and have recently been affirmed and re-stated by the High Court of Australia in Charisteas v Charisteas [2021] HCA 29, 273 CLR 289. As their Honours observed at [11]:
"The apprehension of bias principle is that 'a judge is disqualified if a fair minded lay observer might not bring an impartial mind to the resolution of the question the judge is required to decide."
43 Application of the test requires two steps. First, "it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits". Second, there must be articulated a "logical connection" between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed. Implicit in these steps is that the factual basis for raising the matter complained of (identified in the first step), can be established. This is a threshold consideration.
44 The nature of what it is said by the appellant that might lead the associate judge to decide the case other than on its legal and factual merits was the nature of his alleged relationship with the first respondent as suggested by the representations set out at Annexure A to these reasons, and how that was reflected in what is described as the associate judge's "post-hearing conduct". Unlike Charisteas, in which case there was unchallenged evidence before the court as to the nature and ambit of impeached communications between the judge and counsel, no evidence of any alleged relationship between the associate judge and the first respondent, Ms Nguyen, was adduced other than evidence of the covertly recorded representations (said to have been made by the first respondent to the appellant in a private conversation) regarding her asserted relationship with the associate judge.
45 The logical connection relied upon by the appellant to establish grounds for recusal being that the relationship described by her in those representations may cause the primary judge to depart from deciding the matter on its merits. The question then arises what evidential basis for such an allegation must be established in order to ground a recusal?
46 The allegation has to be more than a mere assertion. There must be "strong grounds" for such an apprehension: Re JRL; Ex parte CJL (1986) 161 CLR 342 per Wilson J at 359-360. Were mere assertion enough to secure a recusal, then a judicial officer may be forced to recuse him or herself by untested representations by a party, and that would allow parties to "judge shop" by eliminating any non-preferred judicial officer by that device. That observation is particularly important when unrepresented litigants are seeking to navigate the process of litigation. In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 per Gaudron and McHugh JJ at 100 (emphasis added):
"When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that
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he or she will not alter that conclusion irrespective of the evidence or arguments
presented to him or her".
47 The onus for establishing such a ground lay upon the appellant in this matter. The associate judge found (T 18–19, AB 31-32) (emphasis added):
"The submissions then go on to assert a very significant amount of facts which are not in evidence and so to the extent that I am faced with material in a submission that's not properly before the court by way of evidence, I ignore it. The safer way to proceed is on the affidavit material that Mr Montenegro himself has put before the Court in support of his application. The – a central paragraph of Mr Montenegro's affidavit states that according to Nga Nguyen, I am friends with her and I have been actively assisting her in her fraudulent AVO complaint or in matter number 90872 of 2022 and helped her with her papers and wanted her to extend the AVO and urged her to extend it. If any of that were true, of course, it would obviously be grounds for recusal. I don't know Ms Nguyen. I've never met her. She has appeared as a litigant in this Court. She has appeared as a litigant in the Magistrate's Court. I have done nothing more than perform my duty as a judicial officer hearing and determining matters properly before me. I've never – if the word 'helped' her is some sort of pejorative sense of going beyond the bounds of judicial function, then it's not articulated how I've done that. The central proposition in paragraph 3 that I'm friends with or am even acquainted with or even associated with or have met the first defendant is rejected."
48 The appellant himself doubts the credibility of Ms Nguyen at paragraph 21 of the Appellant's Affidavit where he states "the veracity of Nga's comments are irrelevant. We do not know if it is true because Nga Nguyen lies like she breathes – effortlessly and relentlessly". Of course, it is the fair minded lay observer that provides the relevant standard here not the subjective views of the appellant.
49 Would a fair minded lay observer reasonably apprehend that a judge might not bring an impartial mind to the resolution of a question the judge is required to decide solely on the basis of untested allegations made by a party to the litigation? Would such an observer accept the comprehensive reassurance by a judge that he or she had no relationship with such a litigant and that any such representations were simply not true?
50 The appellant relies upon the Appellant's Submissions, and his submissions concerning ground 1 are found at AS paragraphs 10–31. The appellant submits that:
"11 The facts giving rise to apprehended bias include:
(a) The judge was the presiding judicial officer in the Magistrates Court AVO matter forming the factual foundation of the tort claim; (b) The judge's prior involvement was not disclosed to the appellant for approximately six months after filing, depriving the appellant of the opportunity to object at the outset. (c) The first respondent made recorded statements (see below) implying personal familiarity with the judge and suggesting assistance from him in the AVO matter."
51 Turning to paragraphs 11(a) and 11(b). There was some reference to the restraint orders being sought in proceedings in the Magistrates Court (No 90872/2022). The associate judge found that (T 18 from line 25):
"It's alleged that the restraint – I assume that reference to restraint actually means restraint order that I think I had something to do with when I was a magistrate - - returning to Mr Montenegro's submissions though – the restraint order was not made on the merits by way of a hearing before – it says Daly AsJ, it would have been me as
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a magistrate – and it said it was made without admission. I don't know what that means. Hence the judge does not know what the merits – does not know the merits and yet – and he goes on to talk about extending it, thereby demonstrating unwavering support and endorsement of the first defendant."
52 This account of the proceedings in the Magistrates Court is somewhat opaque. There is no such thing as "Apprehended Violence Orders" or AVOs in Tasmania, but a restraint order can be obtained under Part XA of the Justices Act. Hence the disconnect between the appellant's submissions regarding AVOs and the nature of the proceedings to which the associate judge refers in his reasons (perhaps because AVOs can be obtained in New South Wales under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) where the appellant resides).
53 Restraint orders may be obtained ex parte, on an interim basis where there is a need, or pursuant to a hearing inter partes. There are occasions where such orders may be made either by consent or with no admission, in these cases a magistrate would not have to make any determinations of credit.
54 It was for the appellant to establish and prove the basis for recusal. Few details of the proceedings relied upon in this regard were given. Were the proceedings in the Magistrate's Court ex parte? Were there any questions of credit that had to be resolved by the associate judge (then the Deputy Chief Magistrate) in the Magistrates' Court as between the parties to this appeal? It is not possible to discern categoric answers to these questions from the material before his Honour. Whilst litigation is often an unforgettable landmark in the life of a citizen, especially a self-representing litigant, that is not so for judicial officers who deal with many matters. It is for the applicant for recusal, in this instance the appellant, to draw relevant matters to the Court's attention.
55 The fact that the appellant says that he was initially unaware of the role of the associate judge as a magistrate in any proceedings under the Justices Act (see paragraph 11(b) of the Appellant's Submissions above at [50]) implies either that he had either forgotten those proceedings took place, or that the proceedings were ex parte or uncontested. It suggests that the associate judge as a magistrate made no credit findings against the appellant, which one imagines the appellant would be unlikely to forget. In the end it is not possible to say how those Magistrates Court proceedings may have impacted, if at all, on the outcome below. It is not for an appeal court to speculate and without identifiable error reliance on paragraphs 11(a) and 11(b) of the Appellant's Submissions takes the matter no further.
56 Reliance at the hearing before the associate judge as the basis for the asserted grounds of recusal was primarily focussed on the matter at 11(c). The gravamen of the Appellant's Submissions is that even were the representations made by Ms Nguyen to the appellant regarding her relationship with the associate judge untrue, they still (emphasis added) "raise a reasonable apprehension that one party may perceive preferential access to or treatment by the judge" (AS paragraph 13). This poses the question whether it is reasonable that a fair minded lay observer be apprehensive as to a judge's impartiality in the face of representations that are demonstrably false? Were a party to apprehend a lack of impartiality in the face of representations that were false, then such an apprehension is not reasonable because the basis for the apprehension falls away.
57 Indeed, one might expect that a judge's rejection of false representations to be forthright and comprehensive, as they were in this case. The care that a judicial officer takes to put the minds of the parties at ease in such a regard cannot then be a separate ground for recusal, that would be circular. However, that is the premise upon which the submissions at AS 16–23 are based. The submission is that it is the very strength of the associate judge's rejection of the representations as false that would cause a "reasonable lay observer, properly informed of these circumstances" to be "left with a sense of unease".
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58 Were such a submission accepted, then a judicial officer would have to attempt a "Goldilocks' approach" in which he or she sought to ensure not too much of a rejection of such representations and not too little. Whilst judges are required to apply the law they do not have to walk such a "tightrope". The associate judge was entitled to be clear, emphatic and seek to leave no room for doubt, indeed that was his obligation especially where parties are unrepresented. It is to be noted that on occasion repetition can be pedagogical, and that may be the case for unrepresented litigants with entrenched positions such as in this case. Whilst the appellant may consider such attempts to reassure litigants in person as "long winded and elaborate" (AS 22) they may be necessary to dispel misapprehension and explain a judge's refusal to recuse him or herself.
59 The appellant sought to link the refusal to admit the USB to this aspect of ground 1 at AS 23, "While a judicial officer may properly reject unfounded allegations; the tone, frequency and strength of these denials – delivered before hearing any submission from the respondents or admitting the contested audio evidence - suggest an impermissible pre-judgement". First, the appellant accepted that absent the USB, the representations upon which he relied were before the Court. Second, the associate judge emphatically rejected the veracity of those representations in giving judgment against recusal. The appellant does not say how the associate judge's position was to be tested. The judicial officer cannot be cross-examined, and if there is additional evidence it should be put before the Court.
60 Beyond an attempt to lay the foundation for the admissibility of the USB (refer to the Appellant's Further Affidavit), no additional evidence was sought to be adduced on appeal.
61 Some care has to be taken with the appellant's submissions titled "The Primary Judge's Perspective Error" AS 24–27. Essentially, the appellant contends that the associate judge decided the question of apprehended bias and recusal from his own perspective rather than that of the fair-minded lay observer. There is some substance to the observation that his Honour approached the issue by considering the truth, or otherwise, of the representations at Annexure A and having concluded they were entirely false, that there was no basis for recusal as there could be no reasonable apprehension. That should be understood as a finding going to the factual basis for the application for recusal, that is answering the question what is the evidential basis for the application, ie are the factual matters relied upon enough to establish a reasonable apprehension? His Honour began his decision in respect of recusal by stating the test in Charisteas (T 17 line 20, T 18 line 10). That test specifically refers to the reasonable apprehension of the fair minded lay observer. The associate judge stated (T 18 line 10, AB 31) that:
"Mr Montenegro's submissions properly set out the legal principles which were referred to in the case of Charisteas v Charisteas which I referred to earlier. I apply the law that he has submitted …"
62 The associate judge accepted that if the representations made by Ms Nguyen (at Annexure A) true then "it would obviously be grounds for recusal" (T 19 line 5, AB 32).
63 His Honour also stated his view that he had no jurisdiction to make any orders of the kind sought by the appellant under the Vexatious Proceedings Act 2011 (T 19 lines 20–45, AB 32), refer to [7] above.
64 Ultimately his Honour considered each of the representations relied upon by the appellant for
recusal before concluding:
"Well all of that is simply rejected. There have been no ex parte communications with this litigant. There have been no discussions with her outside a court room. With the proper court recordings recording everything that's been said and done. And I repeat that, I've never had a single word by way of conversation or otherwise directly or
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indirectly with the second defendant. Or indeed the plaintiff. Nor would I do so. I don't know what was in the mind of the first defendant when she said these things. People could interpret them differently. Not really accepting that they can be characterised as Mr Montenegro does in paragraph 20. But even if they could be characterised that way, they are false, they're simply false. The truth is, that every single communication with any of the litigants to these proceedings has been conducted in a courtroom and recordings are available for every single exchange with every single witness. Such exchanges having been conducted within properly constituted proceedings. Mr Montenegro is correct that I was required to disclose to all parties of (sic) any personal relationship existing between me and any of them, but there aren't any. There never have been and I feel confident in saying there never will be."
65 The appellant sets out the nature of the error he contends occurred below at paragraph 28 of the Appellant's Submissions:
"The legal error is crystallised at the summing up at … [T 19, AB 37 paragraph 2] … as the primary judge betrays an understanding of the common law test. This reasoning erroneously focusses on the judge's own subjective belief in his impartiality and the falsity of the appellant's allegations. However, as the High Court in Ebner makes clear the question is not whether the judge is actually biased or believes himself to be fair, but whether the …[fair minded] … lay observer might reasonably apprehend that the judge might not bring an impartial mind and so forth. As a corollary, the judge's failure to address this objective standard is plain legal error."
66 The reason why this account of appealable error must be rejected is that no reasonable apprehension could be held by a fair minded lay observer based on a demonstrably false premise.
67 The appellant's submission misunderstands the primary judge's concern with the antecedent issue of the veracity of the first respondent's representations with a failure to apply the test in Charisteas when, if those representations were false, there was nothing upon which the test could work, ie there was no basis for a reasonable apprehension by anyone whether a fair minded lay observer or the appellant.
68 The appellant then describes "post- hearing ex parte communications with the respondents" at AS paragraphs 29-31. These submissions focus on the transcript at T 27-30, AB 40-43. This was the part of the hearing below where the appellant had voluntarily withdrawn.
69 Immediately prior to that portion of the transcript, the associate judge dealt with a range of interlocutory applications by the appellant and dismissed his application for the orders sought at paragraphs 2 and 3 of the Appellant's Application (which the associate judge referred to as the "third application") under the Vexatious Proceedings Act, refer [7] above (T 26 lines 15-25, AB 39).
70 The associate judge then turns to the interlocutory applications made by the first and second respondents (numbered D15 and D19 on the Court file). This is where the primary judge expressed his view that he did not have power to make orders under the Vexatious Proceedings Act, and indicated to the respondents that they should seek their own advice and talk to the Registry (T 28 lines 5–10, AB 41). The associate judge did nothing more than seek to assist the unrepresented respondents to bring the applications using the correct process, a situation which commonly arises with self-represented litigants.
71 The contentions put by the appellant in this regard should be rejected, for example the suggestion AS paragraph 30 that "The primary judge demonstrates unrelenting support for the respondents and their vexatious litigant application, continually repeating that it must be done, thereby solidifying in the minds of the respondents that they are taking the correct course".
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72 Both the appellants and the respondents have filed applications to have the other party or parties declared vexatious litigants. No doubt had the appellant not withdrawn from the hearing, the associate judge would have dealt with his applications in similar terms. The role of a judicial officer in such circumstances is to be very careful not to trespass on the merits of the parties' positions whilst assisting them to bring any application in the correct form in an attempt to save Court time and resources. Those objects are properly the object of case management and the associate judge's jurisdiction below.
Ground 4
73 Finally, turning to ground 4. The appellant contends that
"4 The primary judge did not grant the respondent the opportunity to be heard with regards the appellant's application of 7 February 2025 itself, or with regard to the primary judge's strong denials of the first respondent's claims that the primary judge actively assisted her ex-parte in her restraint application no 90872/2022 in the Magistrates Court of Tasmania where the primary judge was the Deputy Chief Magistrate at the time, and thereby breached the respondent's right to procedural fairness."
74 The associate judge gave the appellant every opportunity to be heard on the question of his recusal. This is reflected in the transcript. The associate judge (T 14 lines 25-30, AB 27) having ruled on the admissibility of the USB said (emphasis added):
"What I was about to say was, if that is the evidence in support of your application for the Court to disqualify itself and if your relying on the submissions in your document that you refer (sic) me to earlier, I can then simply adjourn for a few minutes and give you a ruling in relation to the application but if you want to make some more oral submissions, I'd invite you to make those now."
75 There then followed an exchange in which the appellant sought to re-open the question of the admissibility of the USB and some indication in the transcript that the appellant continued to seek to talk over the associate judge. The associate judge ultimately indicated that he would proceed on the basis that the representations relied upon by the appellant were set out in the Appellant's Affidavit, he said (T 15 lines 35-45, AB 28):
"… I am going to proceed on the basis that, as you confirmed, the material in your affidavit provides an accurate account of the things that you say were said. But if that's everything, I'll adjourn for a few minutes and – rule in relation to your application for me to recuse myself in a few minutes. Thank you."
76 It was then that the appellant sought to make what he described as "just one more point". However, having proffered authority, ie Concrete Pty Ltd v Paramatta Design [2006] 229 CLR 577, the appellant having abandoned reliance on that authority then stated (T 16 lines 10–15, AB 29):
"I'm happy for you to adjourn to rule. Thank you."
77 It was only after the appellant had indicated that he was content for the associate judge to rule that the matter was adjourned for the associate judge to rule on the application that he recuse himself. There was no limit placed on the appellant's right to be heard, and it was the appellant's own indication that he was content for the associate judge to adjourn to consider his ruling that precipitated that part of the decision-making process.
78 Whilst the associate judge dealt with the absence of any relationship between himself and the first respondent and his rejection of the veracity of her recorded representations to the appellant in his reasons for refusing to recuse himself, these were matters specifically within the knowledge of the
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Associate Judge and were not matters about which the associate judge could be cross-examined by the appellant. If the appellant had additional evidence upon which he sought to rely, he could have sought to adduce it on appeal. It is noted that the only additional evidence sought to be adduced on appeal went to the foundation for admitting the USB dealt with above.
79 It is unclear how the appellant sought to establish any factual basis for challenging the associate judge's account of the falsity of the first respondent's recorded representations. The appellant, having heard the associate judge's ruling, then sought to raise an objection without stating what that objection was, and then withdrew and absented himself from the proceedings (that were heard on-line) before returning briefly at the urging of the associate judge.
80 The matter of recusal was only the first of three elements in the interlocutory application of 7 February 2025 (see [7] above). The second and third matters related to applications by the appellant under the Vexatious Proceedings Act for the first and second respondents respectively to be declared vexatious litigants. Those matters were dealt with on the basis that they had been wrongly commenced by way of interlocutory application and the appellant had withdrawn from the hearing by the time the associate judge dealt with those matters. It appears that the appellant may have misunderstood the associate judge's ruling regarding the need to have such applications under that legislation dealt with as separate matters not interlocutory applications as a refusal to hear him on those applications. If so, that was a clear misapprehension. Ground 4 must also be dismissed.
81 The appellant's appeal in this matter is dismissed.
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