Re Geelong Quarries Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

CORPORATIONS LIST

S ECI 2021 03781

IN THE MATTER OF GEELONG QUARRIES PTY LTD (ACN 129 611 025)

ANTHONY PETER HOARE & ANOR (according to the Schedule)	Plaintiff
v
MATHEW CHARLES HOARE & ORS (according to the Schedule)	Defendant

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2020 02806

ANTHONY PETER HOARE	Plaintiff
v
AMBERLOWE PTY LTD (ACN 007 056 742) & ORS (according to the Schedule)	Defendants

COMMERCIAL LIST

S ECI 2020 03342

ANTHONY PETER HOARE & ORS (according to the Schedule)	Plaintiffs
v
MATHEW CHARLES HOARE & ORS (according to the Schedule)	Defendants

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JUDGE:	Delany J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 March 2025
DATE OF RULING:	17 April 2025
CASE MAY BE CITED AS:	Re Geelong Quarries Pty Ltd
MEDIUM NEUTRAL CITATION:	[2025] VSC 205

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COURTS AND JUDGES – Application to disqualify for apparent bias – Disqualification by conduct – Asserted findings in reasons following an interlocutory hearing – Asserted failure to provide procedural fairness and a fair hearing – Application refused – Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337, applied – Webb v The Queen [1994] HCA 30; Fuller v Fletcher Building Ltd [2024] VSC 712, referred to.

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APPEARANCES:	Counsel	Solicitors
For Anthony Hoare and ET Investments Pty Ltd	Tim J North KC with Dr Eamonn Kelly and Jennifer Collins	Colin, Biggers & Paisley
For Mathew Hoare	Peter Bick KC with Peter Caillard	Bowman Knox
For Kim McDonald	Justin O’Bryan	Madgwicks Lawyers
For Kevin Roache	Tim Jeffrie	K&L Gates
For John Nagle	Scott Stuckey KC with Georgie Coleman	Barry Nilsson

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TABLE OF CONTENTS

The fair–minded and reasonably informed lay observer.......................................................... 8

The hearing on 29 January 2025..................................................................................................... 10

The first question: grounds for apprehended bias.................................................................... 13

The Change of Position Finding................................................................................................... 16

Anthony’s submissions.................................................................................................................. 16
Mathew’s submissions................................................................................................................... 19
Kim’s submissions......................................................................................................................... 19
Mr Nagle’s submissions................................................................................................................ 19
Consideration................................................................................................................................. 20

The Ulterior Purpose Finding........................................................................................................ 25

Anthony’s submissions.................................................................................................................. 25
Mathew’s Submissions.................................................................................................................. 26
Kim’s submissions......................................................................................................................... 26
Consideration................................................................................................................................. 26

The Concealment Finding.............................................................................................................. 27

Anthony’s submissions.................................................................................................................. 27
Mathew’s submissions................................................................................................................... 27
Kim’s submissions......................................................................................................................... 28
Consideration................................................................................................................................. 29

The failure to afford procedural fairness.................................................................................... 30

Anthony’s submissions.................................................................................................................. 30
Mathew’s submissions................................................................................................................... 35
Kim’s submissions......................................................................................................................... 37
Nagle’s submissions....................................................................................................................... 39

Consideration.................................................................................................................................... 40

The cumulative effect of the conduct relied upon in support of recusal application....... 46

The proposal by Mathew that paragraph 4(c) of the February Orders be vacated............. 46

Conclusion.................................................................................................................................... 47

HIS HONOUR:

These reasons deal with an application by the plaintiffs in three related proceedings that I recuse myself from the final hearing and determination of those proceedings.

The three proceedings are proceeding S ECI 2021 03781 (‘Oppression Proceeding’), proceeding S ECI 2020 02806 (‘Distribution Proceeding’) and proceeding S ECI 2020 03342 (‘Separation Proceeding’) (collectively, ‘Proceedings’).

Following a hearing on 29 January 2025, on 7 February 2025 I made various orders, including setting the Proceedings down for trial on 15 July 2025 on an estimated duration of 15 days. On 7 February 2025 I published my reasons.

The reasons first published on 7 February 2025 were revised on two occasions, the second revision being made on 17 February 2025. Where I refer in this ruling to my reasons, I refer to the reasons as published on 17 February 2025 following the second revision.[1] This ruling assumes and proceeds on the basis of a familiarity with my reasons, aspects of which form one of the two bases of the recusal application.
[1]In the Matter of Geelong Quarries Pty Ltd [2025] VSC 33 (Second Revision, 17 February 2025).

As is the case in the reasons, with no disrespect intended I refer to the members of the Hoare family involved in the litigation by their given names.

The hearing on 29 January 2025 and the reasons concerned the Proceedings and an additional proceeding, proceeding S ECI 2024 07059 (‘Judicial Advice Proceeding’).

The hearing involved two substantive issues: whether an injunction granted on 8 September 2022 in the Oppression Proceeding should be discharged and whether the application for judicial advice should be permitted to go forward with the Proceedings put on hold. In addition, the related question of whether the Proceedings should be listed for trial on the first available date after 28 April 2025.

I ordered the discharge of the injunction which prevented Mathew and Kim and their related entities from terminating the contractual arrangements between Hoare Bros. Pty Ltd (ACN 004 597 979) (‘Hoare Bros’) and Geelong Quarries Pty Ltd (‘Geelong Quarries’) prior to the determination of the Oppression Proceeding. The discharge occurred upon counsel for Mathew and Kim and their related entities advising the court that should the injunction be discharged, their clients would not terminate those arrangements prior to trial. That is, in return for orders being made that until the hearing and determination of the Oppression Proceeding Anthony would be required to keep extraction records from the Liberton quarry, and to make those records available to Mathew, orders for the provision of unfettered and unhindered access by Mathew and his advisers to Liberton and orders being made providing that Mathew is not to be hindered or obstructed when installing and maintaining surveillance equipment at Liberton. I made an order that the Judicial Advice Proceeding be dismissed.

On 6 March 2025 the plaintiffs in the Proceedings made application by a separate summons in each of the three proceedings listed for trial on 15 July 2025 for an order that I recuse myself from the final hearing and determination of those proceedings (‘recusal application’).

The recusal application is supported by an affidavit of Aleksandar Kuraica dated 6 March 2025 (‘Kuraica affidavit’) and by written submissions on behalf of the plaintiffs (for convenience collectively referred to as Anthony) dated 6 March 2025.

The recusal application is opposed by Anthony’s brother, Mathew, the first defendant in the Separation Proceeding and a defendant in the other two Proceedings. It is opposed by Anthony’s sister Kim McDonald, a defendant in the Distribution Proceeding and in the Oppression Proceeding. It is opposed by John Nagle, the fourth defendant in the Distribution Proceeding. Each of those parties filed written submissions in opposition to the recusal application in advance of the hearing.

The outline filed on behalf of Anthony states that the recusal application is made on the grounds of apprehended bias arising out of:

(a)findings made and recorded in the reasons;
(b)the failure to afford procedural fairness to Anthony in dismissing the Judicial Advice Proceeding and making a mandatory injunction against Anthony and entities associated with him without a fair hearing.

The Kuraica affidavit exhibits a copy of the reasons, a copy of the Orders made in the four proceedings on 7 February 2025 (‘February Orders’), an Order made on 10 February 2025 in the Oppression Proceeding, and a copy of the transcript of the hearing on 29 January 2025.

The parties are generally in the agreement about the materials that may be taken into account when determining the recusal application. The materials identified by the parties in the course of the hearing of the recusal application comprise:

(a) the Kuraica affidavit and exhibits;

(b) the materials before Button J on the hearing of the injunction application in 2022, her Honour’s reasons for decision and the reasons for decision of the Court of Appeal on the application for leave to appeal from her Honour’s decision;

(c) the affidavit of Mr Grant, solicitor for Anthony, dated 24 December 2024 filed in the Judicial Advice Proceeding and the exhibits to that affidavit including the proposed consolidated statement of claim for which leave was refused in July 2023;

(d) evidence relied on by the parties and submissions filed with the Court dated 22 January 2025 in advance of the 29 January 2025 hearing together with the draft order annexed to Mathew’s submissions;

(e) email correspondence from junior counsel for Mathew to Chambers dated 30 January 2025, copied to the other parties, attaching a revised form of order in markup;

(f) pleadings in the three proceedings listed for trial on 15 July 2025 current at the date of the 29 January 2025 hearing;

(g) the reasons for decision of Barrett AsJ in Re Geelong Quarries Pty Ltd (Subpoena ruling);[2]

(h) the Further Amended Statement of Claim in the Distribution Proceeding dated 25 February 2025 filed and served by Anthony pursuant to the 7 February 2025 Order (‘FASOC’).

[2]29 April 2024, Unreported, Supreme Court of Victoria (‘Subpoena Ruling’).

Anthony submitted that in addition to these materials, the fair minded lay observer (‘the observer’) to whom detailed reference is later made in these reasons, would have regard to the affidavit of Mr Grant dated 27 March 2025 and the exhibits to that affidavit. Some of the exhibits to that affidavit are documents to which no specific reference was made in submissions or during the course of the hearing on 29 January 2025. During oral submissions on the recusal application senior counsel for Anthony, Mr North KC took me to some of those documents.[3] Mr North KC also referred in oral submissions to evidence that was before Button J in 2022 on the hearing of the injunction application.
[3]For example, Transcript 25:16-31.

During the recusal hearing Mathew relied on Anthony’s affidavit dated 11 October 2021 and the exhibits to that affidavit. That affidavit is referred to in a footnote in Anthony’s submissions on the recusal application. A selection of the exhibits to that affidavit were referred to during the recusal application hearing by senior counsel for Mathew, Mr Bick KC. There was no specific reference to the documents to which Mr Bick KC took me on the hearing of the recusal application in submissions or during the course of the hearing on 29 January 2025.

The grounds relied on by Anthony in support of the recusal application refer to three paragraphs of the reasons and to what occurred during the course of the hearing on 29 January 2025. To the extent the further materials to which senior counsel for Anthony and Mathew referred to during the recusal hearing were not the subject of specific reference in the submissions filed on 22 January 2025 or during the hearing on 29 January 2025 and where those documents are not referred to in the reasons I do not consider that the observer, who is not a lawyer, much less a litigation lawyer, would have regard to those documents. That is the case even if such documents fall within the materials that the parties agree might be taken into account when determining the recusal application. In determining the recusal application I proceed on that basis.

It is common ground that the test to be applied in determining whether a judge is disqualified by reason of apprehended bias is the test articulated by the High Court in Ebner v Official Trustee in Bankruptcy,[4] the so-called ’double might’ test. That is, whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.[5]
[4][2000] HCA 63, (2000) 205 CLR 337 [6] (‘Ebner’).
[5]Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337.

Anthony accepts, as stated by the High Court in Ebner,[6] that the possibility of bias must be real, and not merely remote. As submitted by Mathew, an apprehension of bias must be ‘firmly established’.[7] It is not satisfied by a ‘vague assertion of suspicion’[8] or a ‘vague sense of unease or disquiet’.[9]
[6]Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337 [7].
[7]R v Commonwealth Conciliation and Arbitration Commission; Ex Parte The Angliss Group [1969] HCA 10, (1969) 122 CLR 546, 553 (‘Angliss’).
[8]McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504, 524-525 [104]–[106].
[9]QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15, (2023) 279 CLR 148 [214] (‘QYFM’).

As submitted by Anthony, there are two steps to the analysis:

(a)First, one must identify what it is that might lead a decision-maker to decide a case other than on its legal and factual merits.
(b)Second, a logical connection must be articulated between the identified thing and the feared deviation from deciding the case on its merits.

Only then can the reasonableness of the asserted apprehension of bias be assessed. This is sometimes referred to as the third step.

The assessment of the reasonableness of the apprehension is from the perspective of a fair–minded lay observer.[10]
[10]QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15, (2023) 279 CLR 148 [38].

Recently in Fuller v Fletcher Building Ltd,[11] in a different context, I had occasion to consider the characteristics of the observer. In the next section of these reasons I reproduce parts of my discussion of the authorities in Fuller dealing with that subject matter.
[11][2024] VSC 712, [98]-[109] (‘Fuller’).

Anthony submits the role of the observer is to test whether the adjudicator’s mind might be ‘incapable of alteration, whatever evidence or arguments may be presented’.[12] He submits that an observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case.
[12]Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 [71]–[72].

Anthony referred to observations by the NSW Court of Appeal in Kwan v Kang[13] on an application for recusal following findings in the course of an interlocutory determination:

It is not unknown for judges to make findings on an interlocutory issue and to express those findings in a way that indicates that they have come to a final conclusion. If that conclusion is as to a significant issue on which the ultimate result of the trial depends, and further evidence is still to be led and final addresses are still to be made, the likely consequence is that the judge concerned will have to disqualify himself or herself.
The reason for this is that a finding expressed in terms of finality, when made at an interlocutory stage, will usually give the impression that the judge’s mind is made up. If the judge’s mind is made up before evidence and final addresses are complete, it will mean that a conclusion has been unfairly arrived at. There is then likely to be an apprehension that, when the time comes to give final judgment, the judge might not be impartial or might be prejudiced against the party who was unsuccessful in the interlocutory judgment. It will then not merely be apprehension that the judge will decide the case adversely against that party.

[13][2003] NSWCA 336 [86]-[87] (‘Kwan v Kang’).

The passages to which Anthony drew attention in Kwan v Kang are preceded by the following passages:[14]
[14]Kwan v Kang [2003] NSWCA 336 [84]-[85].

84 In Re JRL; Ex Parte CJL Mason J said at 352:
“It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.”

85 In R v Masters (1992) 26 NSWLR 450 at 471 this Court, in a joint judgment, referred to Re Polites; Ex parte Hoyts Corporation Pty Limited (No 2) (1991) 173 CLR 78 at 85-87 and Re JRL; Ex Parte CJL and said:
“The effect of those unanimous pronouncements was clear. The fact that a judge has decided an issue in a particular way, and is likely to decide it in the same way when it arises again, does not amount to pre-judgment which may require him to disqualify himself in order to avoid an apprehension of bias. The reasonable apprehension which should lead to disqualification must be that the judge will not decide the case impartially or without prejudice, not simply that he or she will decide the case adversely to one party.”

Anthony drew attention to the decision in Mandie v Memart Nominees Pty Ltd[15] where the Court of Appeal affirmed the primary judge’s refusal to recuse herself based on an apprehension of bias when she had previously refused leave to amend a statement of claim and in her decision had adverted to the defendant’s submission that the plaintiffs’ amendment application was driven by a desire to justify wider discovery.
[15][2017] VSCA 177 [69]–[76] (‘Mandie v Memart Nominees’).

The decisions in Kwan v Kang and in Mandie v Memart Nominees are relevant to the first substantive ground relied on by Anthony in this recusal application.

Concerning the second substantive ground, Anthony submits that when a party makes an application, the judge must normally give the party some reasonable opportunity to make submissions in support of that application. This is so even if the judge’s preliminary view is that the application will be unmeritorious. Procedural fairness requires that each party be allowed a reasonable opportunity to present their case.[16]
[16]Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 [40].

Anthony accepts that a judge’s expression of tentative views during the course of argument as to matters on which the parties are permitted to address full argument does not manifest any partiality or bias or amount to a predetermination of the issues.[17] However, he submits, excessive interventions may give rise to an appearance of bias or constitute a denial of procedural fairness.[18] This extends to excessive interventions during oral submissions.[19]
[17]Ozmen v Culture Map Pty Ltd (No 1) [2020] FCA 1890 [47] (Rares J), citing Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225, 234 [34] (McHugh, Kirby and Callinan JJ) and Re Keely; Ex parte Ansett Transport Industries [1990] HCA 27; (1990) 94 ALR 1, 9 (Dawson J).
[18]Dennis v Commonwealth Bank of Australia [2019] FCAFC 231; (2019) 272 FCR 343 [23], [28]-[32].
[19]Gambaro v Mobycom Mobile Pty Ltd [2019] FCAFC 144; (2019) 271 FCR 530 [20]; Jorgensen v Fair Work Ombudsman [2019] FCAFC 113; (2019) 371 ALR 426 [99].

The fair–minded and reasonably informed lay observer

Following the decision in Webb v The Queen, an application that a judge disqualify him or herself for apparent bias is to be determined by reference to the conclusions that a fair–minded and reasonably informed observer might reach.[20]
[20]Webb v the Queen [1994] HCA 30; (1994) 181 CLR 41, 51–52 (Mason CJ and McHugh J), 57 (Brennan J), 67-68 (Deane J), 87-88 (Toohey J) (‘Webb’).

As Deane J observed in Webb:[21]

While the question is not settled by any decision of the Court, it appears to me that the knowledge to be attributed to him or her is a broad knowledge of the material objective facts as ascertained by the appellate court as distinct from a detailed knowledge of the law or knowledge of the character or ability of the members of the relevant court. The material objective facts include, of course, any published statement, whether prior, contemporaneous or subsequent, of the person concerned. If, in the particular case, the proper conclusion is that a fair–minded lay observer with a broad knowledge of those facts would not entertain a reasonable apprehension of bias, that is the end of the issue of disqualification by reason of an appearance of bias.

[21]Webb v the Queen [1994] HCA 30; (1994) 181 CLR 41, 73–74 (Deane J) (citations omitted).

In Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 9], Kirby P said the fair-minded observer is not a lawyer.[22] In QYFM Gordon J said:[23]

…the adjective “lay” in relation to the fair-minded observer is critical — “[i]t would defy logic and render nugatory the principle to imbue the hypothetical observer” with the knowledge and professional self-appreciation of a lawyer, let alone that of an experienced judge.

[22][1990] NSWCA 154 [21] (‘Raybos’).

[23][2023] HCA 15; (2023) 409 ALR 65, 84 [71] (Gordon J) (citations omitted), see also [197] (Steward J).

In Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd, Callinan J said:[24]

It is axiomatic that the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer. But the notional lay person should not be taken to be completely unaware of the way in which cases are brought to trial and tried.

[24](2006) 229 CLR 577, 635 [177].

While not a lawyer, the observer ‘is taken to understand the dynamics of modern judicial practice’[25] and will have knowledge of the docket system employed by many courts.[26] The observer will not be as informed as a lawyer, particularly a litigation lawyer.[27]
[25]AJH Lawyers Pty Ltd v Careri (2011) 34 VR 236 [23] (Warren CJ, Hanson JA and Armond AJA); see also Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 99, (2024) 304 FCR 370 [37] (Banks-Smith, Jackson and Feutrill JJ).
[26]Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577, 634–635 [173]–[175] (Callinan J).
[27]Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 [177].

The observer will identify the material objective facts in order ‘to inform himself or herself to the extent necessary to make a fair judgement’.[28] As Kirby P said in Raybos, the observer ‘will have neither the time nor the inclination to explore the facts at length’.[29] The observer’s approach ‘will involve the wielding of a broad brush’.[30] The observer proceeds ‘based on a consideration of the broad features of the allegation made and not upon a detailed exploration of and lengthy rumination about the legal or other merits of it’.[31]
[28]British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283, 462 [126] (French CJ).
[29]Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 9] [1990] NSWCA 154 [21].
[30]Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 9] [1990] NSWCA 154 [21].
[31]Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 9] [1990] NSWCA 154 [21].

In Victoria v Psaila, Ormiston J said the test ‘requires the observer to be informed, not with the knowledge of Queen’s Counsel, but at least with sufficient knowledge to make an informed appreciation of questions such as impartiality and the want of prejudice’.[32]
[32][1999] VSCA 193 [47].

In British American Tobacco Australia Services Ltd v Laurie, French CJ referred to the earlier decision of the High Court in Johnson v Johnson,[33] where the plurality said:[34]

Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx.

[33](2000) 201 CLR 488 (‘Johnson v Johnson’).

[34][2011] HCA 2; (2011) 242 CLR 283, 305–306 [46] (‘British American Tobacco’) (citations omitted).

French CJ also referred to the observations made by Kirby J in Johnson v Johnson discussing the attributes of the observer. His Honour said:[35]

Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances.

[35]British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283, 306 [46] (citations omitted).

French CJ continued:[36]

A reasonable member of the public is neither complacent nor unduly sensitive or suspicious.
I agree with the observation of Kirby J that a fair-minded lay observer would, before forming a view about the existence of a reasonable apprehension of bias, take the trouble to inform himself or herself to the extent necessary to make a fair judgment.
[36]British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283, 306 [46]–[47].

The hearing on 29 January 2025

As noted in the reasons (at paragraphs 47–60), the impetus for the 29 January 2025 hearing was an application by Mathew by summons dated 16 October 2024 to discharge the injunction previously granted by Button J in 2022 in favour of Anthony in the Oppression Proceeding.

On 22 December 2022 Anthony filed a summons in the Separation Proceeding seeking orders to consolidate his then existing proceedings (‘consolidation application’). On 21 July 2023 I dismissed the consolidation application. The consolidation application and the circumstances of its dismissal are discussed in the reasons at paragraphs 97 to 107. Steps taken in the proceedings since July 2023 are referred to in the reasons at paragraphs 37, 38 and 114 to 124.

On 24 December 2024 Anthony initiated the Judicial Advice Proceeding.

On 17 January 2025 an email was sent by my Chambers asking the parties to address certain topics when preparing written submissions in advance of the hearing. The email, which among other things raised the topic of whether the Separation Proceeding, the Distribution Proceeding and the Oppression Proceeding would be ready for trial by 28 April 2025, is reproduced at paragraph 27 of the reasons.

Written submissions were filed by the parties on 22 January 2025 including addressing to the topics raised in the 17 January 2025 email:

(a) Anthony and ET Investments (Vic) Pty Ltd (‘ET Investments’) (14 pages);

(b) Mathew (20 pages and annexures);

(c) Kim (5 pages);

(d) Kevin Roache (5 pages); and

(e) John Nagle (4 pages).

Mathew’s submissions annexed a draft order that he proposed to seek at the hearing in the Oppression Proceeding. The draft order included the following:

Discharge of Injunction
1. The injunction … be discharged.
2.The question of what damages if any should be paid by any and which persons under the undertaking as to damages … is adjourned for directions to a date to be fixed
3.The parties will provide all such primary source and other documents as may be required by Moore Australia and/or PWC in their respective possession, custody or control as soon as is reasonably possible…...

4.
(a)The first plaintiff and Hoare Bros Pty Ltd shall make and keep a full record of all extraction, production, removal from the site and sale of all quarry products at the property known as Liberton;
(b)the first defendant and his advisers are to be given unfettered and unhindered access to the land known as “Liberton”;
(c)the first defendant is to be given a copy of the following documents within 7 days of the date of these orders and at the end of every month thereafter - all documents relating to production and removal of quarry products at “Liberton” since 1 July 2020 and into the future including:
(i) extraction records;
(ii) crushing and production records;
(iii)sales records relating to the sale of product by the parties, including delivery dockets and weighbridge records and correspondence with customers irrespective of whether those documents are in the possession or control of the first defendant personally or Hoare Bros Pty Ltd.

(d)the first defendant is not to be hindered or obstructed in any way from installing and maintaining surveillance equipment at Liberton including at the points of entry/exit or on the weighbridge and the first plaintiff and Hoare Bros shall take all reasonable steps to ensure such equipment is safeguarded, preserved, and able to operate.

Trial Date
5.The proceeding is set down for trial on [date] on an estimated duration of 15 days.

In his 22 January 2025 written submissions Mathew advocated for an order the Judicial Advice Proceeding be dismissed with indemnity costs.

As requested by my chambers in the 17 January 2025 email, prior to the hearing Counsel provided an agreed allocation of time as follows:

1.        Peter Bick KC and Peter Caillard for Mathew Hoare - 1.5 hours
2.        Justin O’Bryan for Kim McDonald - 0.5hrs
3.        Tim North KC and Eamonn Kelly for Anthony Hoare - 1.5 hours
4.        Tim Jeffrie for Kevin Roache - 10 to 15 minutes
5.        Georgie Coleman for John Nagle - 10 to 15 minutes

The hearing on 29 January 2025 commenced at approximately 10:00 am. Shortly after the hearing commenced I informed counsel that my associates would give a five minute warning before that party’s time was due to expire.

The transcript records that Mr Bick KC, senior counsel on behalf of Mathew, addressed the Court first and that he concluded his submissions ’well within time’. The next party to address the Court was counsel for Kim. Following my suggestion that it might be fairer to Anthony if counsel for Mr Roache and Mr Nagle made their submissions before Anthony made his submissions, addresses proceeded in that order. Submissions on behalf of those parties were made before Mr North KC, senior counsel for Anthony commenced his substantive submissions.

The transcript records that submissions on behalf of Anthony commenced at page 61 and concluded at page 110 with the statement by Mr North KC ‘there’s nothing else, your Honour, I think that completes my time…’. Mr Bick KC made submissions in reply on behalf of Mathew followed by short submissions from counsel appearing on behalf of each of Mr Roache, Mr Nagle and Kim. The hearing concluded at approximately 3:15 pm at page 126 of the Transcript following which I reserved my decision.

The first question: grounds for apprehended bias

In his written submissions Anthony sets out the matters relied on as grounds of apprehended bias:

Anthony brings this application on the basis of a reasonable apprehension of prejudgment, based on:
(a)the Court’s findings that:
(i)the true reason for Anthony’s “change of position” was that Anthony did not want to pay taxes and duties on assets agreed to be distributed to him (Change of Position Finding);
(ii) Anthony was seeking to bring the Judicial Advice Proceeding for an ulterior purpose, namely, to gain a forensic advantage in mediation (Ulterior Purpose Finding);
(iii)there was validity in the submission that Anthony’s behaviour in resisting subpoenas was consistent with Anthony wanting to hide the migration of customers and the other steps that Hoare Bros has taken since 2022 to change the then status quo (Concealment Finding),

(together, Adverse Findings);
(b)failure to afford procedural fairness to Anthony in dismissing Anthony’s application for judicial advice and making a mandatory injunction against Anthony, ET Investments and Hoare Bros without a fair hearing.

In Webb,[37] Deane J identified the four main categories of case where a judge might disqualify him or herself based on a reasonable apprehension of bias:

The area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories of case. The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first (e.g., a case where a dependent spouse or child has a direct pecuniary interest in the proceedings) and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third (e.g., a case where a judge is disqualified by reason of having heard some earlier case… and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.

[37]Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 74 (citations omitted).

The grounds for recusal relied on by Anthony come within the second category in Webb, disqualification by conduct.

In its 2021 report ‘Without Fear or Favour: Judicial Impartiality and the Law on Bias’ the Australian Law Reform Commission (‘ALRC’) made the following observations concerning this category of apparent bias:

This category can be broadly broken down into two subcategories:
•where the apprehension of bias arises from something the judge has previously done, or a decision the judge has previously made, that is said to give rise to an unacceptable risk of prejudgment, even if subconsciously; and
•where the judge does or says something during the course of proceedings that might indicate prejudice, partiality, or prejudgment, seen in the context of ordinary judicial practice.

In Re JRL; Ex parte CJL Mason J relevantly said:[38]

It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.

[38][1986] HCA 39 (1986) 161 CLR 342, 352.

The recusal application involves allegations of pre-judgment arising out of a preliminary ruling. In Westpac Banking Corporation v Forum Finance Pty Limited (Apprehended Bias Application)[39] Lee J referred to what was said by the ALRC in relation to allegations of pre-judgment arising from interim rulings:[40]

10.72 The ALRC Case Review and comments to the ALRC Survey of Judges highlighted interim decisions against a party as the catalyst for a significant number of requests for disqualification. These objections are usually dismissed on the grounds that a judge deciding an issue against a party does not, without more, give rise to an apprehension of bias.
10.77 …
In this area, at least three key principles are well established and often repeated in the case law:
·     The fact that an order has been made against a party is not in itself a disqualifying ground …
·     The expression of a tentative view by a judicial officer in the course of a hearing, in particular, a directions hearing, does not necessarily indicate that the judge has closed their mind …
·     A previous decision of the same fact or expression of clear views about the credit of a relevant witness, whether in the same proceedings or different proceedings, will amount to a disqualifying ground …

[39][2022] FCA 981 [13].

[40]Australian Law Reform Commission: Without Fear or Favour: Judicial Impartiality and the Law on Bias (Report No 138, December 2021)At [10.72], [10.77] (citations omitted).

It is necessary to consider each of the grounds for recusal relied on by Anthony, first individually and then collectively, adopting for convenience the description of the grounds from Anthony’s submissions.

The Change of Position Finding
Anthony’s submissions

Anthony submits Mr Grant gave evidence that following investigations he formed the view that the transfers of assets were not authorised, and that the statement of claim filed on behalf of Anthony and ET Investments in the other extant proceedings may therefore not have properly represented the facts, because the underlying agreements purported to deal with non-estate assets.

Anthony submits that nowhere in his evidence does Mr Grant suggest that Anthony’s ‘change in position’ is a desire to avoid paying taxes. Rather, his affidavit clearly states the ‘change in position’ was driven by the discovery in 2022 and 2023 of critical facts, namely that assets which Mr Nagle and Mr Roache said formed part of the estate did not in fact form part of the estate.

During the recusal application hearing Anthony submitted there was ‘no dispute that the U-turn… on the… uncontested affidavit of Mr Grant was that he’d now got documents that demonstrated the fallacy of the way in which the executors maintained their position’.

The evidence in Mr Grant’s 24 December 2024 affidavit included:

18.When [the Distribution Proceeding] was commenced, various Trust and Company Assets, Bellada assets and Fourth Lendale assets had already been distributed to Mathew and Kim. The manner in which those transactions had been effected was not evident to Anthony or his legal team, however, it was assumed that any distributions to Anthony could be effected in a similar manner to the distributions to Mathew and Kim.
19.In response to the matters pleaded in Mathew’s Defence in [the Distribution Proceeding], as set out in paragraph 14 above, Anthony’s legal team proceeded to investigate if:
(a)the ‘Division of Assets Agreement’, insofar as it purported to distribute the Trust and Company Assets to Anthony, could be legally effected, by reference to the Will and the Trust documents of the trustee companies, either by Amberlowe or the Executors;
(b)the distributions to Mathew and Kim were lawful, by reference to the Will and the Trust documents of the trustee companies.

Anthony submits there was no challenge to Mr Grant’s evidence that he believed, based on documents, that the purported transfers of trust assets into the estate and then onwards to Mathew and Kim are unlawful. It was never put to Mr Grant that the true explanation for Anthony’s ‘change in position’ was Anthony’s desire to avoid paying taxes and duties.

Anthony submits that in contrast to the position considered in Mandie v Memart,[41] in this case there was an express finding that ‘the real reason for Anthony’s ”change in position” was not [emphasis from Anthony’s submissions] that deposed to by his solicitor on affidavit, but rather, his desire to avoid paying taxes on assets agreed to be distributed to him’. Unqualified factual findings were made on matters relevant to the issues to be determined at the trial. While leave was given to amend Anthony’s existing pleadings the leave did not permit Anthony to file any case that he wanted to bring. He was shut out of a claim based on the grant of derivative leave and Mr Nagle and Mr Roache were not required to file defences.
[41][2017] VSCA 177 [69]-[76].

It was submitted orally that unqualified and factual findings were made in the reasons on matters relevant and crucial to the determination of issues in the trial.

In oral submissions Anthony drew attention to the reference in the reasons at paragraph at 108 to $34 million as the value for probate. He submitted that reference was ‘clearly wrong’ and that none of the probate materials had reference to a valuation for probate purposes of $34 million. It was submitted the court-appointed experts have given their opinion that the value of the estate was not as described. It was submitted the reasons attributed a motive to Anthony, namely, that he wanted to avoid paying tax on his third.

The ’finding’ at paragraph 163 that the explanation given by Anthony’s solicitor for his change of position ’gives the game away’ as to Anthony’s desire to ‘avoid’ paying taxes and duties on assets agreed to be distributed to him should be considered in the context of Mr Grant’s evidence. Anthony submitted the observer would ask what is the ‘game’. The reference to the ‘game’ would lead the observer to believe the judge may not bring a fair and unbiased mind to bear on the issues at trial. Anthony was doing nothing other than seeking judicial assistance on his application for judicial advice. He was simply asking the Court on an Order 54 application what authority did the trustees and executors, including himself, have to deal with the assets?

During the recusal hearing Anthony submitted the reference, ‘perhaps a colloquialism’, to ’giving the game away’ as to Anthony’s reason for bringing the Judicial Advice Proceeding would lead the observer to conclude the finding was a finding of selfish motive, that he wished not to pay taxes and duties.

During the recusal application hearing it was submitted by Anthony that litigation always involves strategy but that paragraph 163 of the reasons would suggest to the observer that an improper strategic motive was behind the decision by Anthony to issue the Judicial Advice Proceeding.

Anthony referred to an exchange with his senior counsel at the 29 January 2025 hearing concerning his change of position. It was not suggested to his senior counsel in the course of that exchange that the explanation for the ’change in position’ given by Anthony’s solicitor was incorrect, or that the true explanation was that Anthony wished to avoid paying taxes on assets agreed to be distributed to him. Accordingly, Anthony did not have a fair opportunity to address the court on that issue at the hearing.

In the course of the recusal application hearing Anthony submitted that the observer would know from the consolidated statement of claim and the application to consolidate the three proceedings that the case he wanted to make had changed significantly from the case previously advanced by him.

Mathew’s submissions

Mathew submits there can be no complaint about a ’finding’ that there had been a change of position by Anthony. The reference in Anthony’s written submissions to ’avoid paying taxes and duties on assets’ incorrectly refers to the last sentence in the reasons at paragraph 163 which makes no reference to the avoidance of tax.

Mathew submits those parts of Mr Grant’s affidavit seeking to explain Anthony’s substantial change of position were not accepted as providing a ‘sufficient’ or ‘adequate’ explanation. At paragraph 163 of the reasons the observation is made that there was no explanation by Anthony on affidavit for his change of position.

Kim’s submissions

Kim submits the reasons do not say that the explanation given by Mr Grant was incorrect. This is not a finding adverse to Anthony such as would demonstrate a manifestation of apprehended bias against Anthony’s case.

Kim submits that so far as the reference to ‘gives the game away’ is concerned, it is no secret that Anthony does not want to pay taxes and duties on assets he says were agreed to be distributed to him. That is clear from the relief Anthony claims in the Distribution Proceeding. The finding that the true explanation for Anthony’s changed position is that Anthony did not want to pay taxes and duties, whether it is correct or not, does not go so far as to demonstrate the manifestation of apprehended bias.

Mr Nagle’s submissions

Mr Nagle submits that in the initial statement of claim the relief sought by Anthony against Mr Nagle and Mr Roache was limited to damages in the amount of any expenses, taxes and duties arising out of distribution of assets to him. In the FASOC Anthony maintains that claim for relief which requires the payment by others of any expenses taxes and duties arising out of the transfer of assets to him. It cannot be suggested that this is not an active motive of Anthony. By recognising that motive, the court has not unfairly criticised Anthony or unfairly summarised his motives.

Mr Nagle submitted that the requisite connection between the identified conduct and the fear the case might be determined otherwise than on its merits is lacking. In isolation or in combination, the grounds put forward do not give rise to the requisite apprehension of pre-judgment.

Consideration

The observer will approach this and other grounds relied on in support of the recusal application with knowledge of the material objective facts.

The observer will have at least sufficient knowledge to make an informed appreciation of questions such as impartiality and the want of prejudice. As discussed by Kirby J in Johnson v Johnson, the observer would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. As Kirby P said in Raybos,[42] ‘the observer proceeds based on a consideration of the broad features of the allegations made and not upon a detailed exploration of and lengthy rumination about the legal or other merits of it…’. As French CJ said in British American Tobacco, the observer will have taken ’the trouble to inform himself or herself to the extent necessary to make a fair judgment’.[43]
[42]Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 9] [1990] NSWCA 154 [21] .
[43]British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283, 306.

Bearing those statements in mind, the observer would be aware of the reasons, the pleadings and the relief claimed by Anthony in the Distribution Proceeding and in the other two proceedings current at the date of the 29 January 2025 hearing. The observer would know about the consolidation application in which Anthony and his interests were plaintiffs. The observer would know the consolidation application was dismissed in mid-2023 and that there had been no further application by Anthony to amend his pleadings.

The observer would be aware that paragraph 163 of the reasons to which the first recusal ground relates discusses the sixth reason why the originating motion in the Judicial Advice Proceeding was dismissed. The first five reasons are discussed at paragraphs 154 to 162 of the reasons.

The observer will have read the reasons as a whole, and will have concluded that even if the reasons for dismissing the Judicial Advice Proceeding are not to be afforded an order of precedence that reflects their numbering, putting the matter in its highest for Anthony, paragraph 163 of the reasons is but one of six reasons for the dismissal of the proceeding. The recusal complaint founded on paragraph 163 would be viewed accordingly.

The observer would note the cautionary observations by the High Court in Angliss that an apprehension of bias must be ‘firmly established’.[44] It must be real and not merely remote. In this case the possibility of bias identified as the first ground relies on the sixth reason for dismissing the Judicial Advice Proceeding.
[44]R v Commonwealth Conciliation and Arbitration Commission; Ex Parte The Angliss Group [1969] HCA 10 (1969) 122 CLR 546, 553.

In circumstances where Anthony was given leave to amend his existing pleadings and a trial date was fixed for those proceedings, the observer would not be satisfied that the statements in paragraph 163 of the reasons of which complaint is made by Anthony arguably give rise to anything more than a vague sense of unease or disquiet.

It is correct as submitted by Anthony that nowhere does Mr Grant suggest in his 24 December 2024 affidavit that Anthony’s ’change of position’ is a desire to ‘avoid’ paying taxes. However, at no point in the reasons is there reference to any such desire. Nor do the reasons carry any implication of tax avoidance.

Anthony has failed to establish that the observer, reading the reasons and being aware of the objective material facts, would form the view the reasons either suggest or show a desire by Anthony to ‘avoid’ taxes. The statement in paragraph 163 of the reasons that Anthony ‘does not wish to pay taxes and duties on assets agreed to be distributed to him’ reflects the relief claimed in Anthony’s pleaded case both before and after the 29 January 2025 hearing. The observer would be aware that is the case.

As recorded in the reasons at paragraph 68, and as the observer would know, in the Distribution Proceeding Anthony alleges that Mathew and Kim received distributions of their designated assets under the Distribution Agreement but that he did not. In his statement of claim current as at 29 January 2025, Anthony pleads that he ‘understands’ that the Hoare Family Trust (of which Amberlowe Pty Ltd (‘Amberlowe’) is trustee) paid all taxes and duties payable in respect of the transfers of property to Kim or to her interests, and to Mathew or his interests.

The observer would also know that at the time of the recusal application hearing the FASOC in the Distribution Proceeding dated 25 February 2025 continues to claim as the primary and secondary relief an order that the first defendant, Amberlowe, effect the transfer of property to Anthony and pay the expenses, taxes and duties arising out of transfers; alternatively that the second, third and fourth defendants pay the expenses, taxes and duties arising out of those transfers.

A desire that Anthony not be required to pay taxes and duties on property to be transferred to him and that other persons, the defendants, do so, particularly on the basis of Anthony’s plea that Amberlowe paid all the taxes and duties in respect of the transfers of property to Kim and Mathew, would likely be regarded by the observer as not only lawful, but also understandable. A desire to ‘avoid’ paying taxes and duties to which reference is made on multiple occasions in Anthony’s written submissions is quite a different matter but that is not what the reasons say. Such a motive is not referred to in the reasons and nor does it otherwise arise on a fair reading of the reasons, being the approach the observer is taken to adopt.

The observer would read paragraph 163 of the reasons and would understand that contrary to Anthony’s submissions, the paragraph does not even suggest that the affidavit of Mr Grant was incorrect. It is not that Mr Grant’s explanation was found to be incorrect. It was found to be inadequate. The two things are not the same. There being no adverse finding concerning Mr Grant’s evidence, contrary to Anthony’s submissions, there was no occasion for the Court to suggest to Anthony’s senior counsel that the explanation for ’Change in Position’ in Mr Grant’s affidavit was incorrect.

Mr Grant’s 24 December 2024 affidavit was found at paragraph 163 to not provide a sufficient or adequate explanation for what was found to be a very substantial change of position from Anthony’s currently pleaded case. That is, in circumstances where there was no affidavit from Anthony himself explaining his ‘change of position’.

The observer would read paragraph 163 of the reasons as a whole, in order to evaluate the ‘change of position finding’ of which Anthony complains:

The sixth reason, as the High Court made clear in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand, it is now too late for Anthony to seek judicial advice. For the Court to embark upon the provision of judicial advice now would undermine the basis on which the three existing cases have been brought forward and maintained for years by Anthony. There is no explanation by Anthony on affidavit for his change of position. I do not accept those parts of Mr Grant’s affidavit relied on provide a sufficient or adequate explanation for what is a very substantial change of position. The evidence that ‘it was assumed that any distributions could be effected in a similar manner to the distributions to Mathew and Kim’ ‘gives the game away’. It is because Anthony does not wish to pay taxes and duties on assets agreed to be distributed to him that he has decided to change his position and to undertake the ‘u-turn’ of which Mathew complains.

The observer would have read and noted the findings in paragraph 162 setting out the fifth reason for dismissing the Judicial Advice Proceeding including the reference in that paragraph to the pleadings in each of the Distribution Proceeding, the Separation Proceeding and the Oppression Proceeding in which Anthony:

contends for relief based on the proposition that agreements previously entered into upon which he relies and actions previously taken by him and others in part performance of those agreements were valid and binding on all concerned. That is being the opposite of the position for which he now wishes to contend in the judicial advice proceeding. (emphasis added)

The finding in the reasons at paragraph 163 that Mr Grant’s affidavit does not provide a sufficient or adequate explanation is followed by:

The evidence that ‘it was assumed that any distributions could be effected in a similar manner to the distributions of Mathew and Kim’ gives the game away. It is because Anthony does not wish to pay taxes on assets agreed to be distributed to him that he has decided to change his position ….

‘The evidence’ referred to at paragraph 163 of the reasons is the evidence in paragraph 18 of the 24 December 2024 affidavit of Mr Grant, reproduced at paragraph 62 above beginning ‘it was assumed’. Paragraph 18 appears immediately below Mr Grant’s heading ‘Change in Position’.

The observer would read the reference to ‘gives the game away’ as a reference to Mr Grant’s evidence at paragraph 18 of his 24 December 2024 affidavit, namely the mention revealing the reason for Anthony’s ‘Change of Position’, the pleaded objective of an outcome where property is transferred to Anthony but others assume the burden of taxes and duties on the transfer. The ‘similar manner’ referred to by Mr Grant at paragraph 18 would be read as a reference to a manner of transfer that, as alleged to be the case in relation to transfers to Mathew and Kim, did not involve the recipient of the properties paying the taxes and duties.

The observer might not read all of Anthony’s FASOC dated 25 February 2025 filed pursuant to the 7 February 2025 Order. That is because the observer is not a lawyer and the amended pleading is lengthy. However, the observer would know from reading the transcript of the hearing on 29 January 2025 and the reasons that although the Judicial Advice Proceeding was dismissed over Anthony’s objection, Anthony was permitted to amend his pleadings, including in the Distribution Proceeding, and to bring his amended case for trial based on amended pleadings that reflect his ’change in position’. The observer would appreciate that whatever the significance of the ‘finding’ in paragraph 163 of the reasons, Anthony has not been shut out from bringing the case he wants to bring.

The observer would know that the primary and secondary relief sought in the Distribution Proceeding after Anthony amended his claim on 25 February 2025 to reflect his ‘change in position’ is the same relief that he always sought. That is, relief consistent with the last sentence in paragraph 163 of the reasons but on a different basis.

For the reasons discussed the observer would not regard what was said at paragraph 163 of the reasons as statements or matters that might lead the same decision-maker to decide the case at trial other than on its legal or factual merits.

Even if the reasons did demonstrate some manifestation of apprehended bias for the purposes of the first limb in Ebner, given that the relief sought by Anthony by the FASOC in the Distribution Proceeding includes orders that others pay taxes and duties, it is hard to see how the second limb of the test in Ebner might be engaged. Anthony has not shown why a finding that he does not wish to pay taxes and duties on property transferred to him, the same position that he pleads has been adopted in relation to property transferred to Mathew and Kim, might lead the observer to think that a fair and unbiased mind might not be brought to bear on the issues to be determined at trial or that the adjudicator’s mind might be ‘incapable of alteration, whatever evidence or arguments may be presented’.[45]
[45]Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 [71]–[72].

No logical connection has been demonstrated between the ’change of position’ finding and the feared deviation from deciding the case at trial on the merits.

The Ulterior Purpose Finding
Anthony’s submissions

The second ground asserts the making of a finding that Anthony was seeking to bring the Judicial Advice Proceeding for an ulterior purpose, namely, to gain a forensic advantage in mediation.

In his 22 January 2025 submissions, Anthony contended the Judicial Advice Proceeding ’raises confined and readily answerable legal questions… the answers to which will have a profound impact upon the further mediation and potential resolution of all disputes between named and interested parties’. In the reasons this submission was found to suggest ’that Anthony seeks to gain some form of strategic advantage from the Judicial Advice Proceeding’, and that this was ’not a valid or proper reason for permitting [the Judicial Advice Proceeding] to go forward’.

Anthony submits this finding carried the implication that he was seeking to use the Judicial Advice Proceeding for an ulterior purpose and that he was doing something that was ‘not valid or proper’.

Mathew’s Submissions

Mathew submits there was no such ‘finding’. The reasons at paragraph 164 merely observe that the Judicial Advice Proceeding ‘suggests that’ Anthony was seeking to gain some form of strategic advantage. Even if such a ‘suggestion’ could be inferred, there is no logical connection between any such finding and the author of the reasons not deciding the case at trial on its merits for the purposes of the second limb of Ebner.

Kim’s submissions

Kim referred to an exchange with senior counsel for Anthony at the hearing on 29 January 2025, the effect of which was to say there are limits to what advice can be sought in an Order 54 proceeding and that it is not possible to go beyond those limits to assist a mediation process. In that context the comments in the ruling at paragraph 164 do not demonstrate a manifestation of apprehended bias.

Reference was made in an exchange during the 29 January 2025 hearing with Kim’s counsel concerning Anthony’s submission that the Judicial Advice Proceeding would assist with the mediation:

HIS HONOUR: Well, one of the things put forward in Mr North and Mr Kelly’s submissions in support of judicial advice is that it might assist with the mediation, but it does not seem to me that has got anything to do with the usual role of judicial advice.
MR O’BRYAN: No.
HIS HONOUR: And if it were to be that it would be more like: ‘Okay, I’m an executor, tell me what position I’m entitled to appropriately adopt in a mediation’. But that is not the way these questions are framed.

Kim submits that in the context of that exchange the reasons at paragraph 164 are simply stating there are limits to what advice can be sought in an Order 54 proceeding. It is not possible to go beyond those limits to assist a mediation process.

Consideration

I do not accept the observer would regard what was said at paragraph 164 regarding the ongoing mediation as a matter that might lead the same decision-maker at trial to decide the case other than on its legal and factual merits. The observer would be aware of the exchange with counsel for Kim during the hearing concerning whether assistance with mediation is a ‘usual’ role of judicial advice. The paragraph in the reasons does no more than respond to the submission advanced by Anthony in writing on 22 January 2025.

Even if the observer considered what appears at paragraph 164 satisfies the first limb of the test in Ebner, there is no logical connection between the suggestion that Anthony sought to gain some strategic advantage in mediation via the Judicial Advice Proceeding and the same decision-maker hearing and determining a trial of the three proceedings in July 2015 other than on their merits.

The Concealment Finding
Anthony’s submissions

Anthony notes that the Court found at paragraph 147 of the reasons there was ‘validity in the submission on behalf of Kim’ that Anthony’s behaviour in resisting subpoenas was ‘consistent with Anthony wanting to hide the migration of customers and the other steps that Hoare Bros has taken since 2022 to change the then status quo’.

Anthony submits the ‘Concealment Finding’ may indicate to a fair minded lay observer that the Court has reached a ‘dim view’ of Anthony’s credibility before the trial has even begun. This impression may be fortified by the fact that the Court also discharged the injunction made by Justice Button on 8 September 2022 ('September Injunction') and made the Order containing the ‘mandatory injunction’ on 7 February 2025 against Anthony, ET Investments and Hoare Bros without requiring any summons to be filed or any undertaking as to damages to be provided by Mathew.

During the recusal application hearing Anthony submitted the finding at paragraph 147 of the reasons went beyond findings which are not unusual in interlocutory decisions and attributed to Anthony a motive of wanting to hide material.[46]
[46]T/S 59–60.

Mathew’s submissions

Mathew submits that Anthony’s description of a ‘Concealment Finding’ is inaccurate and mischievous. Paragraph 147 of the reasons reads as follows:

There is validity in the submission on behalf of Kim that Anthony’s behaviours in resisting the subpoenas issued by Mathew on the grounds that subpoenas were fishing and an abuse of process and were not for a legitimate forensic purpose is consistent with Anthony wanting to hide the migration of customers and the other steps that Hoare Bros has taken since 2022 to change the then status quo.

While Anthony may not like the observation that opposition to the subpoenas was consistent with Hoare Bros and himself attempting to conceal the migration of customers away from Geelong Quarries it was a reasonable and proper observation to make.

There has been no finding in relation to Anthony’s credibility. Regardless, that is not the test for recusal and, in itself, explains why the application for recusal is misconceived.

Mathew submits that in his affidavit responding to the discharge of the injunction Anthony did not respond to many of the allegations based on documents obtained over his opposition by subpoena from third parties. In response to the allegation that customers of Geelong Quarries had surreptitiously been migrated to Hoare Bros, Anthony effectively conceded that to be the case, and simply asserted they were always customers of Hoare Bros, so there had not been any change in the status quo. The observations of the Court in those circumstances were unremarkable.

The observer would recognise that judges may have to make findings or observations in interlocutory applications that may be critical or not in the interests of a particular party. The observer would also recognise that judges are persons whose training, tradition and oath or affirmation require them to discard the irrelevant, the immaterial and the prejudicial. That does not change merely because a judge has made a finding or observation that could be considered critical of, or adverse to, the interests of a party.

Kim’s submissions

Kim submits the finding at paragraph 147 of the reasons was open based on the materials before the Court on 29 January 2025.

Those materials reveal that Mathew issued the subpoenas because of his concern that Anthony and Hoare Bros had diverted the customers and revenue of Geelong Quarries to Hoare Bros. Anthony resisted the subpoenas knowing that Mathew had those concerns and wanted the documents because of their relevance to the injunction in place. Anthony claimed the subpoenas constituted an abuse of process by Mathew. Having lost the subpoena fight and the subsequent inspection revealing that all Geelong Quarries customers had migrated to Hoare Bros, Anthony then agreed that had in fact happened.

In those circumstances it was reasonable to conclude that Anthony resisted the subpoenas because he wanted to hide the migration of customers and the other steps that Hoare Bros has taken since 2022 to change the then status quo.

Consideration

I do not consider the observer would regard what appears at paragraph 147 as a ‘finding’ of concealment. All that is said at that paragraph is that ‘there is validity’ in Kim’s submission. The reasons why there is found to be validity for the submissions are then stated.

This is not a case where there has been, as the ALRC referred, an ‘expression of clear views about the credit of the witness’. At its highest, paragraph 147 involves a ‘finding’ about the validity of a submission.

The observer would know about the Subpoena Ruling. The observer would know that Anthony resisted the subpoenas on the grounds referred to in paragraph 147 of the reasons and that when documents produced were relied on in opposition to the application to discharge the injunction, that Anthony contended that the customers identified were always customers of Hoare Bros.

The observer would not regard what is said at paragraph 147 as a statement that might mean that the same decision-maker might not bring an impartial mind to the issues to be decided at trial.

The failure to afford procedural fairness
Anthony’s submissions

It is Anthony’s submission firstly, that there was no fair hearing in relation to the Judicial Advice Proceeding, and secondly, that there was no fair hearing in relation to the ‘mandatory injunction’. To these grounds referred to in ground (b) of Anthony’s written submissions; at the recusal hearing Anthony added that the ‘adverse findings’ show there was no procedural fairness and that reasons were not provided for the ‘mandatory injunction’ orders when reasons should have been provided. Anthony submitted these matters demonstrated a lack of procedural fairness.

Turning to the first ground, Anthony submits the hearing on 29 January 2025 at which the Judicial Advice Proceeding was dismissed was a directions hearing. No party had made an application for summary dismissal of the Judicial Advice Proceeding and Hoare Bros was not a party to the Oppression Proceeding. Anthony submits that he expected a hearing as to the merits to take place at a later date, on 13 February 2025.

Anthony submits that procedural fairness requires that parties be given adequate notice of the case they have to meet and the basis on which a claim for relief is brought. It also requires that parties be given adequate notice of when a particular application against them will be heard so that they can prepare for it and file evidence and submissions in a timely way.

The 17 January 2025 email stated that the Judicial Advice Proceeding appeared to represent ‘a further change of position’ by Anthony ‘who previously has been content to proceed on the basis of his own view of the issues’. However, Anthony had sought to make an application for judicial advice in 2023 at the time of seeking leave to file a consolidated statement of claim.

During the recusal application hearing Anthony submitted that his application for judicial advice was made in circumstances where there was a proper factual basis for the court to declare transfers of property and actions taken in relation to the estate and trust assets to be void and of no effect, as the court found to be the case in Re Haliem.[47] However, on 29 January 2025 his counsel was not given a fair hearing or opportunity to develop such arguments.
[47][2024] VSC 400, [26]-[27].

Anthony submitted that at the 29 January 2025 hearing, his senior counsel had limited opportunity to address the substantive merits of the Judicial Advice Proceeding beyond the topic raised in the 17 January 2025 email.

He submitted that, as the transcript reveals, Anthony’s senior counsel faced multiple interruptions while making his submissions. On several occasions, he respectfully requested the opportunity to fully develop his arguments. However, it is not readily apparent from the transcript that such an opportunity was provided.

It was submitted that while Anthony was given leave to file amended pleadings he was not given leave to bring proceedings on behalf of the estate and that Mr Nagle and Mr Roache were not required to file defences to the amended pleadings.

As to the second ground, the September Injunction was discharged on the basis that there had been a material change of circumstances by reason of Anthony’s change of position, when in fact, there was no such change of position. Mathew’s contentions about Anthony lacking standing to bring the Oppression Proceeding had already been rejected by the Court of Appeal in refusing to grant Mathew leave to appeal from the September Injunction.

Anthony submitted the observer would note that the ‘mandatory injunction’ was granted:

(a) when no summons or supporting affidavit was filed seeking that order;

(b) in the absence of all affected parties (i.e. Hoare Bros);

(c) despite Mathew advancing no claim for final relief in the Oppression Proceeding to which the ‘mandatory injunction’ could be regarded as ancillary;

(d) despite Mathew not articulating any reason why the ‘mandatory injunction’ could or should be granted;

(e) despite Mathew not offering, and the Court not requiring, an undertaking as to damages;

(f) in terms that included what was, in effect, an extremely wide discovery order, without requiring Mathew to demonstrate any belief that such documents were likely to exist and were likely to be in the possession of Anthony;

(g) in terms which require documents to be produced irrespective of whether the documents exist or are in the possession of Mathew, Hoare Bros, or any other person;

(h) in terms which required Anthony and Hoare Bros to ‘take all reasonable steps’ to ensure surveillance cameras installed by Mathew were ‘safeguarded, preserved and able to be operated’, while also restraining Anthony and Hoare Bros from interfering with those cameras; and

(i) without reasons.

At the 29 January 2025 hearing Anthony’s senior counsel objected to the fact that Mathew had not filed a summons seeking to discharge the September Injunction. He submitted that Anthony would have addressed the orders sought by Mathew in affidavit evidence if an application had been filed.

Attachment 1 to Mathew’s 22 January 2025 submissions was a proposed order, which included, for the first time, a ‘mandatory injunction’ in the Oppression Proceeding. Mathew did not identify any claim by him in the Oppression Proceeding for final relief to which the February Orders could be regarded as ancillary.

At the recusal application hearing Anthony referred to Ragless v IPA Holdings Pty Ltd[48] where White J observed:

the jurisdiction to revoke or vary an interlocutory order of a substantive kind should not be exercised when the real basis for the application is that the original order was wrongly made. The recourse available to a litigant making that contention is by means of appeal.

[48][2012] SASC 203 13.

Anthony referred to observations to similar effect by Finkelstein J in BP Chemicals ANZ Pty Ltd v Manildra Starches Pty Ltd[49] and by Heerey J in Cole as liquidator of Ivas Holdings Pty Ltd (in liq) and Anor v Bosiljevac and Ors.[50] In BP Chemicals Finkelstein J said that notwithstanding the fact a Court retains the power of revocation or variation (of an interlocutory injunction) it has often been said that the power should be ‘exercised only sparingly’… .[51] The jurisdiction to revoke or vary an order should not be exercised when the real basis for the application is that the original order was wrongly made. Such an argument should be addressed to a Court of Appeal.
[49][1997] FCA 1189 (‘BP Chemicals’).
[50]Unreported, 22 March 1996, Federal Court of Australia.
[51]BP Chemicals ANZ Pty Ltd v Manildra Starches Pty Ltd [1997] FCA 1189, 5.

Mathew’s submissions described the orders made as being ‘orders which would permit Hoare Bros to continue to operate out of Geelong Quarries provided there is appropriate scrutiny and recording of what product is removed from the quarry’. Anthony submits that in reality the orders amounted to a mandatory injunction. The orders were made without the court requiring an undertaking as to damages from Mathew and Kim as should have been the case.

Concerning the third ground, Anthony submits the observer would note that the Court’s reasons for dismissing the Judicial Advice Proceeding and discharging the September Injunction relied, in part, on the ‘adverse findings’. The observer would note that those findings had been made without cross-examination and before the trial had even commenced. The observer may therefore apprehend that the findings had been made unfairly. As the NSW Court of Appeal observed in Kwan v Kang, ‘[t]here is then likely to be an apprehension that, when the time comes to give final judgment, the judge might not be impartial or might be prejudiced’ against Anthony.[52]
[52]Kwan v Kang [2003] NSWCA 336 [87].

This apprehension is likely to be heightened by the fact that the ‘adverse findings’ are relevant to the matters which the Court will be required to decide in determining the Proceedings. Anthony submitted that he has now amended his pleadings to seek substantive relief in respect of the subject matter of the questions included in the originating process in the Judicial Advice Proceeding in the Distribution Proceeding.

Anthony submitted there will be key issues for determination at trial as to:

(a) the extent of Anthony’s participation in, and consent to, the distribution of assets to Mathew and Kim (or entities associated with them);

(b) the extent to which there was an operative mistake vitiating steps taken since Peter’s death (about whether the relevant assets formed part of the estate, whether they could lawfully be distributed, and/or the fiscal implications of such a distribution);

(c) whether Mathew, Mr Roache and/or Mr Nagle misrepresented critical matters as alleged by Anthony;

(d) whether Mr Roache and/or Mr Nagle provided false or misleading advice as alleged by Anthony; and

(e) whether it is equitable for Anthony to be permitted to pursue claims against Mathew and Kim (and their respective entities) for breach of trust.

Anthony submits the ‘adverse findings’ are relevant to these issues. Accordingly, the observer might apprehend that the Court might not bring an impartial mind to the resolution of these issues.

The observer may reasonably apprehend that the Court had unfairly determined a number of proceedings and applications in a manner which adversely affected Anthony’s interests. This may give rise to a reasonable apprehension in the mind of the observer that the Court may not bring an impartial and unprejudiced mind to the final determination of the Proceedings at trial.

As to the fourth ground, Anthony submits the form of that part of the February Order referred to as the ‘mandatory injunction’ as made by the Court differed from the form attached to Mathew’s written submissions. The differences are material. The terms of the ‘mandatory injunction’ aspect of the February Orders are problematic. The Order reflects the revised undertaking provided under cover of the 30 January 2025 email by junior counsel for Mathew after the hearing had ended and the judge had reserved his decision.

The Order requires Anthony to ensure that Mathew is given various documents irrespective of whether those documents ‘currently exist or are otherwise in the possession of [Mathew], Hoare Bros or any other person’. It is notable that at the recusal hearing Mathew sought to vary the February Orders so as to delete reference to the words in paragraph 4(c).

Anthony submits he did not know there would be an email to the Court following the hearing after the judge reserved his decision. When a judge reserves his or her decision, except for the slip rule, there are to be no further submissions without leave, the parties’ rights to arguments and to be heard have been exhausted.[53]
[53]Bail v Mills (2011) 81 NSWCR [X].

Anthony submits that the 30 January 2025 email equates to a further submission. The reasons do not set out the basis for the orders that were made. There is an absence of reasons for the ‘mandatory injunction’.

Mathew’s submissions

Mathew submits that he and his related entitles as well as Kim and her related entities advised the Court that if the September Injunction was discharged, they would not terminate the contractual arrangements between Hoare Bros and Geelong Quarries provided certain safeguarding conditions were imposed. In that context, the parties discussed with the Court measures that could be taken to protect Mathew and Kim’s interests but permit Hoare Bros to continue providing quarrying services.

Mathew submits Anthony had ample opportunity to put his position as to the conditions on which Hoare Bros would continue to operate the quarry. Anthony could have refused continued operation of the quarry by Hoare Bros under any new conditions, in which case Hoare Bros would have been entitled to a reasonable period of notice to withdraw its services from the quarry. Through his senior counsel Anthony had ample opportunity to raise any matter he wished about the conditions under which the quarry was to be operated by Hoare Bros.

On 22 January 2025, a week before the 29 January 2025 hearing, Mathew distributed a proposed form of order he would be seeking at that hearing, that was very similar to those included in the February Orders. As recorded in Mathew’s written submissions, the order proposed was to provide appropriate scrutiny and recording of what product is removed from the quarry. At the same time, it was intended to give Anthony comfort that the informal agreement between Hoare Bros and Geelong Quarries would continue if the trial took place soon. The order was proposed as a practical solution to avoid an unnecessary interlocutory dispute.

At the hearing, senior counsel for Anthony actively engaged with the Court in relation to those proposed orders and sought amendments to the protections sought by Mathew. For example, Mr North KC advised the Court that the proposed orders should not extend to extraction, crushing and/or production records and that proposed orders 4(c) and (d) should be amended accordingly. Mr North requested ‘cross-undertakings’, to which senior counsel for Mathew responded that an appropriate note of the assurance given to the Court under ‘Other Matters’ should suffice.

This was an interlocutory application. Having received a copy of the proposed order sought by Mathew on 22 January 2025, which specifically foreshadowed that Mathew would be seeking the transparency/protections referred to above at the hearing on 29 January 2025; and having actively engaged and ‘negotiated’ with the Court in relation to those proposed orders and protections, the suggestion that Anthony was denied procedural fairness is misconceived.

Anthony did not seek further time to consider the conditions under which Hoare Bros would continue to operate the quarry. He had ample opportunity to put forward his own conditions. He did not seek an adjournment of the hearing.

The Orders now used as the foundation for the procedural fairness argument were interlocutory and thus susceptible of variation for any sound reason. It was open to Anthony to bring the matter back on to seek a clearer rewording or to make a case that one or more of the orders were unworkable. That is what Anthony should have done, had he wished to raise any such matters.

In his written submissions, Anthony made a purely technical complaint that there may not have been a summons seeking those orders as required by r 46.02(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). To the extent that the February Orders contained a mandatory injunction, it is inconceivable how Mathew’s failure to comply with the requirement to file a summons could result in an apprehension of bias. Insisting on a summons in circumstances where the parties were given advance notice of the orders to be sought and actively engaged with those orders at the hearing is inconsistent with the overarching principles in the Civil Procedure Act 2010 (Vic).

Rather than denying procedural fairness to Anthony and conducting the hearing in any way which might give rise to apprehended bias, the Court gave Anthony the opportunity in each of the Distribution Proceeding, Separation Proceeding and Oppression Proceeding to amend to run whatever case he wished to. Anthony has amended his claims in each of them and done the complete U-turn he sought. The amendments are based on the position he wished to put forward in the Judicial Advice Proceeding and the consolidation application.

Anthony was afforded procedural fairness and, in the circumstances, a fair-minded lay observer would not reasonably apprehend that the judge might not act impartially and without prejudice.

Kim’s submissions

Kim submits one of the issues raised by the 17 January 2025 email was whether in circumstances where there have already been four Supreme Court proceedings, it is appropriate for the Court to be asked to provide judicial advice (point 10 in the 17 January 2025 email).

On 22 January 2025 Anthony, Mathew and Kim each filed written submissions in which they addressed point 10 among other things.

Kim submits that, after reading the submissions, at the hearing on 29 January 2025 the judge repeatedly asked Anthony’s counsel why it was not the most efficient way forward for Anthony to plead the case he wants to make in the current proceedings. The judge pointed out that Order 54 was there for the court to provide advice and not to make decisions and that there were problems with the Judicial Advice Proceeding and the ancillary relief. No appropriate response to any of these matters was given on behalf of Anthony. The exchanges show that the judge was trying to make clear that he had doubts about the appropriateness of a further proceeding seeking judicial advice and the efficiency of taking that course and he was seeking a response from counsel. The questioning by the judge was appropriate.

A judge is entitled to engage with counsel and express what might be regarded as tentative views on the matter before them. Judges are not required to sit and in silence to avoid an apprehension of bias. This is especially so in a modern context of the docket system where a judge has been involved in the proceeding through the interlocutory phases and is familiar with the proceeding.

The question of whether interventions and observations from the bench go beyond what is a proper and reasonable expression of tentative views is a matter of judgment taking into account all of the circumstances of the case.[54] Critical strong and candid statements from the bench will not necessarily amount to the manifestation of apprehended bias.[55] The full context in which remarks are made by the judge needs to be considered rather than relying on selective quoting of words or phrases from the transcript or reasons.[56]
[54]Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [1997] FCA 1189, (2006) 229 CLR 577 [112].
[55]Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [1997] FCA 1189, (2006) 229 CLR 577180].
[56]Crackin’ Snack Pty Ltd v Gameking Australia Pty Ltd [2024] NSWCA 182 [85], [92].

Kim submits the judge gave Anthony’s counsel repeated opportunities to address the issues concerning the viability of the Judicial Advice Proceeding. While his questioning was direct, it was appropriate. In the circumstances there was no failure to afford a fair hearing on the issue of the continuance of the Judicial Advice Proceeding.

The February Order that Anthony refers to as a ‘mandatory injunction’ was made to ensure that Anthony and Hoare Bros were able to continue to operate the quarry. The effect of discharging the injunction was that Mathew and Kim could move to put the quarrying works out to tender. Mathew and Kim agreed not to do that and the measures in the Court’s orders were put in place to ensure that if Hoare Bros continued the quarrying operations at Liberton it would be done in a way that was transparent. The provision of documents and the installation of surveillance equipment was a way of giving effect to the object of ensuring that Hoare Bros remain as the quarrying contractor at least until further order.

The proposed orders were addressed by the parties including Anthony during the hearing on 29 January 2025. Anthony did not say these orders should not be made because they amount to a mandatory injunction. The discussion was confined to the terms of the proposed orders.

Anthony was given an opportunity to address the court on the question of whether the orders should be made. There was no failure to provide a fair hearing.

Nagle’s submissions

Counsel for Mr Nagle submits that the purported denial of procedural fairness complaints do not withstand scrutiny.

It is asserted that Anthony’s senior counsel faced multiple interruptions while making his submissions. However some of the ‘interruptions’ relied on were, in truth, Anthony’s senior counsel interrupting his Honour mid question. Others may appear on transcript to be ‘interruptions’ but were questions posed at a natural break in Mr North’s submissions.

The remaining complaints relate to matters such as the absence of a summons and matters being raised on the Court’s own motion rather than by reference to any formal application by a party, which ignore principles of modern-day case management and the overarching purpose of resolving disputes as quickly and efficiently as possible. Others focus on the issues identified in the 17 January 2025 email and complain that such questions occupied too much of Anthony’s senior counsel’s time for oral submissions.

However, the requirements of procedural fairness ‘are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered’ that the Judge may not bring to the resolution of questions arising before the tribunal fair and unprejudiced mind. As observed by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson:[57]

At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly, Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case." Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

[57](2000) 201 CLR 488 [13].

Mr Nagle submits the requisite connection between the identified conduct and the fear the case might be determined otherwise than on its merits is lacking.

Consideration

The observer would understand the need for Anthony to be given adequate notice of the case he has to meet and the basis on which claims for relief which are either against or concern him are brought. In that context the observer would consider separately, and also cumulatively, Anthony’s concerns as communicated in his written and oral submissions in the recusal application that he did not get a fair hearing. The reasons Anthony submits that to be the case include that:

(a)There was no application on summons for dismissal of the Judicial Advice Proceeding which was listed for a directions haring on 29 January 2025.
(b)Attachment 1 to Mathew’s 22 January 2025 submissions was a proposed form of order which included what Anthony described in his submissions as a ‘mandatory injunction’ in the Oppression Proceeding and yet Mathew filed no summons and no affidavit in support of a ‘mandatory injunction’.
(c)During the hearing on 29 January 2025 senior counsel for Anthony had limited opportunity to address the substantive merits of the Judicial Advice Proceeding beyond the topics raised in the 17 January 2025 email from the Court and faced multiple interruptions while making his submissions.
(d)The form of the February Orders, containing the ‘mandatory injunction’ differed materially from the form attached to Mathew’s 22 January 2025 submissions and reflect the terms of the email sent on 30 January 2025 by junior counsel for Mathew which equated to a further submission and occurred after the judge had reserved his decision.

Concerning the first matter, notice and the asserted absence of a fair hearing concerning the Judicial Advice Proceeding, the observer would be aware of point 10 in the 17 January 2025 email from the court. The observer would be aware of Mathew’s submissions dated 22 January 2025 seeking an order the Judicial Advice Proceeding be dismissed with indemnity costs.

The observer would appreciate that 7 days before the hearing Anthony was on notice of Mathew’s submission that the Judicial Advice Proceeding was ‘an entirely inappropriate application, made in an inappropriate form’, of Mr Roache’s submission that the Judicial Advice Proceeding should be dismissed and is an inappropriate proceeding to progress, of Kim’s submission that the Judicial Advice Proceeding is ‘largely incompetent’ and of Mr Nagle’s submission that the Order 54 procedure appears misconceived.

When considering procedural fairness in the context of Anthony’s first ground, the key consideration is whether Anthony had adequate notice of what might happen at the hearing. The fact the Judicial Advice Proceeding was listed for directions and there was no summons seeking an order that the Judicial Advice Proceeding be dismissed at the hearing would be weighed by the observer against notice given to Anthony in the submissions to which I referred in the previous paragraph. The observer would regard Anthony as being on notice of the issues that he would likely need to deal with at the hearing on 29 January. Those issues include issues arising for Mathew’s submission, supported by Mr Roache, that the Judicial Advice Proceeding should be dismissed without being permitted to progress.

The observer would be aware that Anthony made no application for an adjournment either of the Judicial Advice Proceeding or of the application to discharge the September Injunction.

Concerning the second ground, the ‘mandatory injunction’, the observer would know that the catalyst for the 29 January 2025 hearing was Mathew’s application to discharge the September Injunction restraining Mathew and Kim from taking steps to terminate the arrangements pursuant to which the Liberton quarry was being operated. The observer would know that the 17 January 2025 email from the Court foreshadowed an early trial date, in April 2025. It expressly asked Mathew to address why the September Injunction should be discharged if the trial was to occur on or shortly after 28 April 2025.

The observer would know that in light of the email from the Court, Mathew had on 22 January 2025 sent to Chambers a draft form of order which, whilst discharging the September Injunction, in effect provided for the status quo to continue until trial and provided for certain ‘safeguards’ which Mathew was seeking were put in place. The observer would appreciate that, such orders having been proposed by Mathew, they would likely be the subject of argument at the 29 January 2025 hearing, as in fact occurred.

The observer would not regard the February Orders as a ‘mandatory injunction’. The relevant aspect of the February Orders simply imposed requirements for the provision of information and scrutiny by or on behalf of Mathew and Kim while allowing the status quo at Liberton with Anthony in charge of quarrying operations to continue until trial.

The observer would have access to the transcript of the hearing on 29 January. The observer would know that there was debate including between me and senior counsel for Anthony about the proposed orders sought by Mathew, including the submission by Mr North KC that cross-undertakings should be provided as a condition of the orders sought by Mathew being made.

Concerning ‘multiple interruptions’ to Anthony’s counsel, during the hearing, the observer would be aware that prior to the hearing an agreed estimate of the time for argument had been provided to Chambers, agreed by all parties. The observer would know that senior counsel for Anthony was not required to address the Court for less time than provided for in the agreed time allocation and that he did not ask for further time. The observer would be aware that there was intervention by me proposing an alteration to the order in which addresses were to be delivered so as to ensure procedural fairness to Anthony and that Anthony’s counsel accepted that proposal. On reviewing the transcript the observer would not regard the interchange with senior counsel for Anthony as one fairly described as involving excessive interventions during oral submissions.

The observer would be aware that Anthony was represented by very experienced senior counsel and by experienced junior counsel at the 29 January 2025 hearing. The observer would note that there were questions asked of all counsel during the hearing and, as submitted by Kim, that included testing propositions put forward in submissions on behalf of Anthony in relation to the Judicial Advice Proceeding. As identified in Mr Nagle’s submissions, the observer would appreciate there were ‘interruptions’ both of and by senior counsel for Anthony.

The observer would see from the transcript that senior counsel for Anthony was asked why the Court should allow Anthony to resile from the position he previously adopted in the other Proceedings and on the basis of which the litigation had previously been conducted. Concerns with the Judicial Advice Proceeding were raised by the court with senior counsel for Anthony, as was the notion that instead of the Judicial Advice Proceeding going forward, it might be more efficient and appropriate for Anthony to be given leave to amend his pleadings in his existing proceedings.

The observer would be aware that the hearing was being conducted by the ‘docket judge’ for the Proceedings and for the Judicial Advice Proceeding. The observer would appreciate from the transcript that the proposed 28 April 2025 trial date was deferred until July to accommodate counsel’s commitments, including those of senior counsel for Anthony.

While the ‘adverse findings’ were identified by Anthony in oral submissions as a separate matter relied on to show a failure to provide procedural fairness, how or why there was said to be a connection between those findings and an asserted denial of procedural fairness was not articulated.

Concerning the fourth ground identified by Anthony, the observer would be aware that at the conclusion of the hearing the parties were asked to provide a form of order including dealing with the provision of material to Moore’s accountants and that senior counsel for Mathew said that a form of order would be provided. Given those references on the transcript, the observer would find it unremarkable that a form of order was provided in mark up by junior counsel for Mathew the day following the 29 January 2025 hearing, showing the changes to the form of order attached to the 22 January 2025 submissions.

This case and the present circumstances are very different to the circumstances dealt with by the NSW Court of Appeal in Bale v Mills to which Anthony referred in submissions. In that case the decision had been reserved and the parties’ rights to argue had passed. Here the order was provided in mark up as discussed during the 29 January 2025 hearing would occur. The marked up orders were copied to counsel and solicitors acting on behalf of Anthony and there was no response or protest by or on behalf of Anthony when this occurred. Having read the transcript and being aware of the interchange between the Court and counsel for the parties, including senior counsel for Anthony concerning the draft order proposed, the observer would not regard the absence of discussion of the ‘mandatory injunction’ order in the reasons as a matter associated with or evidencing a lack of procedural fairness.

While the observer would be aware that Anthony did not achieve the result he hoped for following the hearing on 29 January 2025, the observer would know, as was said n R v Masters referred to at paragraph 26 above, that ‘the fact a judge has decided an issue in a particular way, and is likely to decide it in the same way when it arises again does not amount to prejudgment’.[58]
[58]R v Masters (1992) 26 NSWLR 450, 471.

The observer would be aware that detailed reasons were provided for the decision to discharge the September Injunction, to put in place the February Orders and to dismiss the Judicial Advice Proceeding. The observer would know that while the Judicial Advice Proceeding was dismissed for the reasons stated, Anthony was given the opportunity to amend his pleadings in the existing Proceedings and that he has taken up that opportunity. Pursuant to the February Orders Anthony has filed amended pleadings and the trial of the three Proceedings based on Anthony’s amended pleadings is listed to commence on 15 July 2025.

Being aware of those matters, contrary to Anthony’s submissions, the observer would not consider there was a failure to afford procedural fairness to Anthony. The observer would not consider that what occurred at or in relation to the 29 January 2025 hearing, including the sending of the 30 January 2025 email (to which Anthony’s lawyers did not respond) gives rise to a reasonable apprehension that the same decision-maker who presided over the hearing might not bring an impartial and unprejudiced mind to the resolution of the questions required to be decided at trial of the Proceedings.

The cumulative effect of the conduct relied upon in support of recusal application

It is necessary to consider the three ‘adverse findings’ and the allegation of the failure to afford procedural fairness to Anthony on a cumulative basis and to consider whether on that basis the matters relied on mean that the observer might reasonably apprehend that the trial judge who presided over the interlocutory hearing and delivered the reasons might not bring an impartial mind to one or more of the issues required to be decided at the trial.

Particularly when looking at the grounds on a cumulative basis the observer will adopt a ‘broadbrush’ approach. Adopting such an approach it would be clear to the observer in this case that there is no substance to the allegation that by reason of the matters relied on, whether taken separately or cumulatively, the observer might reasonably apprehend that the same decision-maker might not bring an impartial mind to the issues required to be decided at trial. The result is no different if the observer looks in detail to each of the separate grounds relied on and then takes that level of detail into consideration cumulatively.

The proposal by Mathew that paragraph 4(c) of the February Orders be vacated

At the hearing of the recusal application Mathew proposed that paragraph 4(c) of the 7 February 2025 Order in the Oppression Proceeding be vacated.

There was no explanation on affidavit or in submissions prior to the hearing for the proposal by Mathew to vacate paragraph 4(c).

The proposal to vary the February Orders to remove paragraph 4(c) is opposed by Anthony. It is relevant to note that:

(a) at the time of the 29 January 2025 hearing there was a contempt application on foot initiated by Mathew relying on alleged contraventions of the February Order; and

(b) the February Orders were at the time of the hearing and I understand continue to be the subject of an application by Anthony for leave to appeal to the Court of Appeal.

At the time of the recusal application hearing neither the contempt application nor the application for leave to appeal had yet been heard. In all of the circumstances in the absence of any evidence in support of the application to vacate paragraph 4(c) of the February Order in the Oppression Proceeding it is not appropriate to do so at this time.

Conclusion

For the reasons discussed, the application by summons filed in each of the Separation Proceeding, the Distribution Proceeding and the Oppression Proceeding seeking an order that I recuse myself from the final hearing and determination of those proceedings is refused.

The appropriate order as to costs is that Anthony pays the costs on a standard basis of each of the parties who appeared at the recusal hearing who successfully opposed the recusal application. Although there was some discussion of the discharge of paragraph 4(c) of the February Orders in the course of the hearing, the amount of time devoted to that issue was minimal. In the circumstances it is appropriate to make one costs order only.

If any party contends for a different form of order as to costs they should let my Chambers know by email by no later than 4:00pm on 17 April 2025 and provide a short submission of no more than two pages in support of the position for which that party contends. Should there be such a submission, any party who opposes the costs order sought by that party or those parties should file and serve its or their submissions (of no more than 2 pages) by no later than 4:00pm on 24 April 2025 following which I will deal with any outstanding costs issues on the papers.

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SCHEDULE OF PARTIES (S ECI 2020 02806)

By Original Proceeding
HOARE, ANTHONY PETER	Plaintiff
-and-
AMBERLOWE PTY LTD (ACN 007 056 742)	First Defendant
MATHEW HOARE	Second Defendant
KEVIN ROACHE	Third Defendant
JOHN NAGLE	Fourth Defendant
By Counterclaim
MATHEW HOARE	First Plaintiff by Counterclaim
-and-
AMBERLOWE PTY LTD (ACN 007 056 742) (AS TRUSTEE FOR THE HOARE FAMILY SETTLEMENT TRUST)	Second Defendant by Counterclaim
CUSTOMLINE PTY LTD (ACN 055 931 952)	Third Defendant by Counterclaim
OZENKA PTY LTD (ACN 008 164 770)	Fourth Defendant by Counterclaim
ME HIRE PTY LTD (ACN 055 779 774)	Fifth Defendant by Counterclaim
GALAXIE INVESTMENTS PTY LTD (ACN 005 258 766)(AS TRUSTEE FOR THE PETER HOARE FAMILY TRUST)	Sixth Defendant by Counterclaim
KIM MCDONALD	Seventh Defendant by Counterclaim
BELLADA PTY LTD (ACN 007 446 399)	Eight Defendant by Counterclaim
MAUKAD PTY LTD (ACN 009 536 672)	Ninth Defendant by Counterclaim

SCHEDULE OF PARTIES (S ECI 2020 03342)

By Original Proceeding
ANTHONY PETER HOARE	First Plaintiff
CUSTOMLINE INVESTMENTS PTY LTD (ACN 055 931 952)	Second Plaintiff
- and -
MATHEW CHARLES HOARE	First Defendant
AMBERLOWE PTY LTD (ACN 007 056 742)	Second Defendant
SAMWORTH PTY LTD (ACN 061 358 067)	Third Defendant
WIBAHO PTY LTD (ACN 004 837 889)	Fourth Defendant
H4MC PTY LTD (ACN 139 370 826)	Fifth Defendant
By Counterclaim
MATHEW HOARE	First Plaintiff by Counterclaim
SAMWORTH PTY LTD (ACN 061 358 067)	Second Plaintiff by Counterclaim
- and -
ANTHONY HOARE	First Defendant by Counterclaim
CUSTOMLINE INVESTMENTS PTY LTD (ACN 055 931 952)	Second Defendant by Counterclaim
AMBERLOWE PTY LTD (ACN 007 056 742) AS TRUSTEE FOR THE HOARE FAMILY SETTLEMENT TRUST	Third Defendant by Counterclaim
AMH PROPERTIES PTY LTD (ACN 155 604 818) IN ITS OWN RIGHT AND AS TRUSTEE FOR THE AMH PROPERTY TRUST	Fourth Defendant by Counterclaim
DEAKIN ADMINISTRATION PTY LTD (ACN 065 314 623) IN ITS OWN RIGHT AND AS TRUSTEE FOR THE FEATHEROCK TRUST	Fifth Defendant by Counterclaim
GALAXIE INVESTMENTS PTY LTD (ACN 005 258 766) AS TRUSTEE FOR THE PETER HOARE FAMILY TRUST	Sixth Defendant by Counterclaim
MKA INVESTMENTS PTY LTD (ACN 004 883 372)	Seventh Defendant by Counterclaim
HOARE BROS PTY LTD (ACN 004 597 979)	Eighth Defendant by Counterclaim
GELLONG QUARRIES PTY LTD (ACN 129 611 025)	Ninth Defendant by Counterclaim

SCHEDULE OF PARTIES (S ECI 2021 03781)

HOARE, ANTHONY	First Plaintiff
ET INVESTMENTS (VIC) PTY LTD (ACN 673 546)	Second Plaintiff
- and -
MATHEW CHARLES HOARE	First Defendant
KIM MCDONALD	Second Defendant
H4MC PTY LTD	Third Defendant
MARKEE CUSTODIANS PTY LTD	Fourth Defendant
GEELONG QUARRIES PTY LTD (ACN 129 611 025)	Fifth Defendant

[2025] VSC 205

17 April 2025