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
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…
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- Case
- [2024] FCA 1123
- Decision Date
CaseChat Overview and Summary
The legal issues before the court centred on whether the judge's prior involvement in a related matter created a reasonable apprehension that he might not approach the current proceedings with an impartial mind. The applicant argued that the judge's actions in a previous case, where he arranged for the dismissal of an application to set aside a judgment, established a logical connection to the current proceedings, thereby raising a reasonable apprehension of bias. The respondent, Nimlaw Pty Ltd, contended that there was no basis for such apprehension and that the judge's impartiality remained intact.
In dismissing the application, the court found that the judge's prior involvement in a related matter did not give rise to a reasonable apprehension of bias. The court held that a fair-minded lay observer, fully informed of the facts, would not reasonably apprehend that the judge might not bring an impartial mind to the hearing of the current proceeding. The court emphasised that the judge's actions in the previous matter were unrelated to the current case, and there was no logical connection that could establish a reasonable apprehension of bias.
The court reserved costs and set a timetable for the exchange of written submissions, with the matter listed for hearing on 14 November 2024. The application for the recusal of Justice O'Sullivan was refused, and the matter will proceed with the judge currently assigned.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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