Scott v Nimlaw Pty Ltd (No 1)
[2024] FCA 1123
•18 September 2024
FEDERAL COURT OF AUSTRALIA
Scott v Nimlaw Pty Ltd (No 1) [2024] FCA 1123
File number(s): SAD 102 of 2024 Judgment of: O'SULLIVAN J Date of judgment: 18 September 2024 Date of publication of reasons: 24 September 2024 Catchwords: PRACTICE AND PROCEDURE — recusal application — reasonable apprehension of bias — whether fair-minded lay observer might reasonably apprehend that judge might not bring an impartial mind to the hearing of the proceeding — whether involvement in a previous matter would result in a reasonable apprehension of bias — whether the Court arranged for the District Court to dismiss an application to set aside a judgment against the applicant upon which a bankruptcy notice was founded — whether logical connection is established — recusal application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) Cases cited: Charisteas v Charisteas [2021] HCA 29; 95 ALJR 824
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
Nimlaw Pty Ltd v Scott, in the matter of Scott [2024] FedCFamC2G 647
Scott v Judicial Registrar Ditton [2023] FCA 947
Division: General Division Registry: South Australia National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Number of paragraphs: 22 Date of hearing: 18 September 2024 Counsel for the Appellant: The appellant appeared in person Solicitor for the Respondent: Mr J Stewart-Rattray appearing for Stewart-Rattray Lawyers ORDERS
SAD 102 of 2024 BETWEEN: SUSAN JANE SCOTT
Appellant
AND: NIMLAW PTY LTD
Respondent
ORDER MADE BY:
O'SULLIVAN J
DATE OF ORDER:
18 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.By on or before 23 October 2024, the appellant is to file and serve any written submissions in which she intends to rely, limited to 10 pages including any annexures, in 12 point font and 1.5 line spacing.
2.By on or before 6 November 2024, the respondent is to file and serve any written submissions in which it intends to rely, limited to 10 pages including any annexures, in 12 point font and 1.5 line spacing.
3.The matter is listed for hearing at 10.00am (AEDT) on Thursday 14 November 2024 with 2 hours set aside.
4.The appellants’ interlocutory application filed 13 September 2024 that Justice O’Sullivan recuse himself is refused.
5.Costs reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’SULLIVAN J:
By interlocutory application filed 13 September 2024, the appellant applies for an order that I recuse myself from hearing this matter on the basis of apprehended bias. The application is supported by an affidavit of the appellant sworn 13 September 2024.
The substantive proceeding is an appeal from a judgment of the Federal Circuit and Family Court of Australia given on 4 July 2024 at Sydney, Nimlaw Pty Ltd v Scott, in the matter of Scott [2024] FedCFamC2G 647, in which the primary judge dismissed an application for review of a decision of a Registrar of the Court made 13 March 2024 to make a sequestration order against the estate of the appellant.
The history of the matter was succinctly set out by the primary judge at paragraphs 2 and 3 in the following terms:
2.On 15 November 2023, Charlesworth J dismissed Dr Scott’s application to set aside the Bankruptcy Notice. Scott v Nimlaw Pty Ltd [2023] FCA 1420. On 19 November 2023, Dr Scott filed an interlocutory application in the same proceeding seeking leave to appeal Charlesworth J’s decision as well as a stay of execution or operation of any proceedings on the Bankruptcy Notice pending the outcome of the appeal. The application for a stay was referred to O’Bryan J as Commercial and Corporations Duty Judge and was refused ... Scott v Nimlaw Pty Ltd (No 2) [2023] FCA 1472. On 19 November 2023, Dr Scott lodged a notice of appeal against Charlesworth J’s dismissal of her application. That is proceeding SAD160/2023. Scott v Nimlaw Pty Ltd [2024] FCA 26 at paragraph 4. According to a Federal Court order dated 16 February 2024, the appeal was dismissed by McElwaine J on that day.
3.On 13 March 2024, a registrar ordered that Dr Scott’s estate be sequestrated, noting that the act of bankruptcy had occurred on 17 August 2023. In fact, the act of bankruptcy had occurred once the time for compliance with the Bankruptcy Notice expired in accordance with the orders of 15 November 2023 of Charlesworth J, namely:
2.The operation of the bankruptcy notice be stayed until 48 hours following the transmission to the applicant of the Court’s written reasons for judgment.
That date has not been identified to the Court.
Paragraph 2 of the appellant’s affidavit asserts that as the judge to whom this matter has been allocated, I have “some relationships, common interests or affinities in relation to the matters of [the appellant’s] action that would appear questionable in the lay observer’s mind”.
In paragraph 3 of her affidavit, the appellant deposes as to there being extensive documents relating to my involvement as from March 2023, which would give an apprehension of bias to the lay observer concerning my actions.
The appellant deposes that documents were submitted, filed and serviced – I think served, as part of the action that was heard but disregarded by Charlesworth J, O’Bryan J, McElwaine J, Registrar Colbran and the primary judge.
Paragraph 4 of the appellant’s affidavit refers to the appellant’s efforts that the South Australia Government Executive be held to account for damages for human rights violations, for murder, for bureaucratic murder as well as a claim for wrongful acts to cause death.
Paragraph 7 of the appellant’s affidavit contends that a lay observer would identify me as “committed to act judicially and extrajudicially to cause my claim of wrongful act to cause death by the South Australia Executive not to be heard, and to cause a question of fraud of Nimlaw Pty Ltd also not to be heard, such that I am denied the defence against the charge of bankruptcy”.
The basis of the application is lacking in detail, save for generalised references to documents. The balance of the affidavit adds little, if anything, to assist in understanding the basis of the application.
When the matter was called on today, I gave the appellant the opportunity to expand on the basis of her application.
The appellant submits by way of clarification, that my judicial and extra-judicial conduct has led to an apprehension of bias.
As to the judicial conduct, the appellant submits that by reason of my management of a previous matter in relation to the dismissal of a review brought by the appellant from a decision by a Registrar of the Court to refuse documents for filing, Scott v Judicial Registrar Ditton [2023] FCA 947.
As to extra-judicial conduct, that is an assertion that somebody from the Federal Court, it would seem me but that is not clear, has taken the matter to the District Court of South Australia and has informed Master Olsson of that Court not to set aside the judgment which was the basis of the Bankruptcy Notice issued against the appellant and in relation to which Registrar Colbran made a sequestration order on 13 March 2024.
The appellant provides no evidence to support that bare assertion, which is utterly without foundation.
Principles
The principle in relation to apprehended bias is that: Charisteas v Charisteas [2021] HCA 29; 95 ALJR 824:
A judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.
The application of the principle requires two steps:
(a)First, identification of what it is said might lead to a judge ... to decide a case other than on its legal and factual merits; and
(b)Second, an articulated ‘logical connection’ between that matter and the feared departure from the judge deciding the case on its merits.
Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed: Charisteas at paragraphs 11 to 13. See also Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6] and [19] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
In Ebner, their Honours observed at paragraph 19:
Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
Turning to the two steps. First, as to what might lead a judge to decide the appellant’s case, other than on its legal and factual merits, to the extent, I can understand the appellant’s submissions, they are as previously described. None of those matters are matters which might lead a judge to decide the appellant’s case other than on its legal and factual merits.
That being the case, there is no articulated logical connection between that and any feared departure from me deciding the case on its merits (second step).
Having considered the matters raised by the applicant in her affidavit and in oral submissions today, there is no basis to support a contention that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the question I am required to decide. It is for these reasons that I decline to recuse myself in this matter.
I make the following orders:
(1)The appellant is to file and serve any written submissions limited to 10 pages including annexures in 12 point font with 1.5 line spacing by on or before 23 October 2024.
(2)The respondent is to file and serve any written submissions limited to 10 pages including any annexures in 12 point font with 1.5 line spacing by on or before 6 November 2024.
(3)I list the appeal for hearing on Thursday 14 November 2024 at 10 am, two hours set aside.
(4)The applicant’s interlocutory application filed 13 September 2024 seek an order that I recuse myself is refused.
(5)Costs reserved.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan. Associate:
Dated: 24 September 2024
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