Thomson v Australia and New Zealand Banking Group Limited - [2024] QCA 73

SUPREME COURT OF QUEENSLAND

CITATION:

Thomson v Australia and New Zealand Banking Group Limited [2024] QCA 73

PARTIES:

CAROLYN MARY THOMSON
(appellant)
v
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
ACN 005 357 522
(respondent)

FILE NO/S:

Appeal No 3513 of 2022
Appeal No 4341 of 2022
SC No 8958 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeals

ORIGINATING COURT:

Supreme Court at Brisbane – [2022] QSC 18 (Williams J); Unreported, 18 March 2022 (Williams J)

DELIVERED ON:

7 May 2024

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Mullins P and Morrison and Bond JJA

ORDERS:

1.   Leave granted to amend the notice of appeal except in respect of proposed grounds 2m, 2n, 2s(a)-(d), 2v, 2y and 2z.

2.   Applications to adduce evidence refused.

3.   The appeal in CA3513 of 2022 is dismissed with costs.

4.   The appeal in CA4341 of 2022 is dismissed with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – OTHER MATTERS – OTHER CASES – where the appellant served a statutory demand on the respondent for an alleged debt of $2,832,378 on 1 August 2019 – where the primary judge set aside the primary demand, pursuant to s 459H of the Corporations Act 2001 (Cth), on the basis that there was a genuine dispute – where the primary judge also made an order as to costs – where an application was made by the ANZ under r 371(2) and r 389(2) of the Uniform Civil Procedure Rules 1999 – where the appellant challenges both decisions of the primary judge – where the appeals had multiple grounds of appeal including that the primary judge should be disqualified due to apprehended bias, that the primary judge erred in her Honour’s findings and that the appellant was denied natural justice – whether the appeals should be allowed

Corporations Act 2001 (Cth), s 459G, s 459H, s 459J(1)(b)
Uniform Civil Procedure Rules 1999 (Qld), r 5, r 30, r 371(2), r 389(1), r 389(2)

Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2013] 2 Qd R 202; [2012] QCA 272, considered
Australian Communication Exchange Ltd v Pilot Partners P/L [2017] QSC 176, considered
Chambers v Brice [2013] QSC 232, considered
Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29, considered
Ligon 158 Pty Ltd v Huber (2016) 117 ACSR 495; [2016] NSWCA 330, considered
MNWA Pty Ltd v Deputy Commissioner of Taxation (2016) 250 FCR 381; [2016] FCAFC 154, considered
Nine Network Australia Pty Ltd v Wagner (2020) 6 QR 64; [2020] QCA 221, considered
Re Syncordia Group Operations Pty Ltd [2021] VSC 732, applied
SGR Pastoral Pty Ltd v Christensen [2019] QSC 229, considered
Superior IP International Pty Ltd v Ahearn Fox Patent and Trademark Attorneys [2012] FCA 282, considered

COUNSEL:

The appellant appeared on her own behalf
E J Goodwin KC for the respondent

SOLICITORS:

The appellant appeared on her own behalf
Herbert Smith Freehills for the respondent

THE COURT: On 1 August 2019 the appellant served a statutory demand on the respondent (the ANZ) for a debt alleged to be $2,832,378. The demand set out that:
(a)on 22 March 2018 the ANZ agreed to pay the following companies on behalf of the appellant:
(i)Tremco Pty Ltd (Tremco) - $972,000;
(ii)PWA Financial Group Pty Ltd (PWA) - $50,000; and
(iii)Thomson Lawyers - $30,000;
(b)on 12 October 2018 the ANZ agreed to pay the appellant a cash payment of $1,780,378.
On 24 February 2022 the learned primary judge set aside the statutory demand pursuant to s 459H of the Corporations Act 2001 (Cth), on the basis that there existed a genuine dispute as between the appellant and the ANZ as to the debts[1].
[1]Australia and New Zealand Banking Group Limited v Thomson [2022] QSC 18.
The appellant has brought two appeals. The first is from the order setting aside the statutory demand. The second is from the learned primary judge’s orders as to costs, and an application by the ANZ under r 371(2) and r 389(2) of the Uniform Civil Procedure Rules 1999 (UCPR).
Though the appeals appear complex in terms of the formulation of the grounds, the following issues can be distilled:
(a)Issue 1 – was the learned primary judge disqualified by reason of apprehended bias, due to an alleged failure to disclose;
(b)Issue 2 – did the learned primary judge err in finding that the evidence supported the existence of a genuine dispute;[2]
(c)Issue 3 – was the appellant denied natural justice by the absence of an oral hearing on the apprehended bias issue;
(d)Issue 4 – if the alleged denial of natural justice occurred, can this court be satisfied that the opportunity of an oral hearing could have made no difference to the learned primary judge’s order on the apprehended bias issue;
(e)Issue 5 – was the learned primary judge able to hear the ANZ’s r 371 application on 18 March 2022, before the orders pronounced on 24 February 2022 were set aside on appeal;
(f)Issue 6 – was the learned primary judge’s exercise of discretion on the r 371 application affected by a relevant error of the type identified in House v The King[3]; and
(g)Issue 7 – was the learned primary judge’s exercise of discretion to refuse the appellant’s two requests for an adjournment, affected by error of the type identified in House v The King and, if so, did it impact on the final outcome.
[2]This issue only arises if the appellant is granted leave to amend her notice of appeal.
[3](1936) 55 CLR 499.
For the reasons which follow the appeals must be dismissed. As will become apparent, not all of the issues above need be resolved.
Background
The following facts do not appear to be in contention on the material before this Court.
In 2008 the appellant and her husband took out a home loan with the ANZ, secured by a registered mortgage over a residential property at Pelican Waters in Queensland.
In 2009, the ANZ provided a business loan to Kadoe Pty Ltd in its own capacity, and as trustee for the For Three Trusts. The appellant’s husband was the sole director of Kadoe.
PWA[4] had been engaged by the appellant’s husband to establish the Trust. By no later than early 2016 the appellant had begun to complain to the ANZ about various issues, including that the Trust had not been established by PWA.
[4]Later known as Bentleys (Sunshine Coast) Pty Ltd.
The appellant’s complaints ultimately led to a meeting in March 2018 and one in October 2018.
On 5 or 6 August 2019, the statutory demand was served on the ANZ.
On about 18 August 2019, the appellant filed a complaint with the Australian Financial Complaints Authority (AFCA) against the ANZ, which overlapped with the issues raised by the statutory demand. AFCA is a financial industry ombudsmen created pursuant to Commonwealth legislation.
The appellant refused to withdraw the statutory demand. On 22 August 2019, the ANZ filed and served an originating application to set aside the statutory demand, together with affidavits by Mr Smith and Ms Kindermann.
The ANZ’s originating application was the subject of twelve consent adjournments in total, pending AFCA’s determination of the complaint. Those adjournments were, in a general sense, in accordance with AFCA requirements.
On 10 September 2019, the appellant filed a notice of appearance as required by schedule 1A, r 2.9 of the UCPR. On 17 September 2019, the appellant filed an affidavit by Mr Thomson, her husband.
On 21 September 2021, AFCA issued its determination of the appellant’s complaint regarding, amongst other matters, the issues the subject of the statutory demand.
On 29 August 2021, the appellant emailed the ANZ’s solicitors seeking to have the originating application (then set down to be heard on 29 September 2021) adjourned to February 2022. This was requested due to AFCA’s determination having not been released, and for various reasons personal to the appellant. The ANZ agreed.
On 15 September 2021, Jackson J adjourned the originating application to a date to be fixed in the week commencing 7 February 2022. That order was made by consent.
The adjournment resulted in the hearing before the learned primary judge on 7 February 2022.[5]
[5]Jackson J also made an order by consent that there be no order as to the costs of the previous eleven adjournments.
On 24 January 2022, the ANZ filed an application to set aside subpoenas which had been issued in respect of Mr Elliott, Mr Gonski, Ms Jablko and Ms McKinstray.
On 31 January 2022, the solicitors for the ANZ sent an email to the appellant, attaching the ANZ’s submissions to set aside the subpoenas.
On 2 February 2022, the ANZ’s solicitors sent an email to the appellant, attaching the ANZ’s submissions on the originating application, plus two affidavits.
On 3 February 2022, the appellant sent an email to the ANZ’s solicitors, attaching a copy of her submissions, inter alia, in response to the ANZ’s application to set aside the subpoenas.
On 4 February 2022, Boddice J[6] heard the ANZ’s application to set aside the subpoenas. The subpoenas addressed to Ms Jablko and Ms McKinstray were set aside by consent. The subpoena to Mr Gonski was set aside after hearing argument. The application in respect to the subpoena to Mr Elliott was adjourned to 7 February 2022.
[6]As his Honour then was.
On 6 February 2022, the appellant emailed her submissions on the originating application to the ANZ.
On 6 February 2022, the ANZ’s solicitors sent an email to the appellant, attaching the ANZ’s submissions in response to arguments she had raised about the form of certain affidavits.
On 7 February 2022, the learned primary judge heard the ANZ’s originating application and the application to set aside Mr Elliott’s subpoena. That hearing took the substantial part of the day.
On 14 February 2022, the appellant sent an email to the learned primary judge’s associate, making an “informal application” in these terms:
“I would like Her Honour to recuse herself. As I am self represented this should be done by Her Honour instead of requiring me to make a formal application and argue that Her Honour should be disqualified from these proceedings. An informal application for Her Honour to recuse herself is acceptable and this is my application. My application for recusal is based on apprehended bias and/or actual bias as follows ….”
There was no oral hearing of the appellant’s informal application for recusal. No party applied for leave to proceed under r 389 UCPR either prior to or at the hearing on 7 February 2022.
On 25 February 2022, the ANZ’s solicitors sent an email to the appellant, attaching the ANZ’s submissions on the question of costs.
On 11 March 2022, the ANZ’s solicitors emailed the appellant, foreshadowing that the ANZ would, to the extent necessary, seek an order under r 371(2) and r 389(2) UCPR.
On 15 March 2022, ANZ’s solicitors sent an email to the appellant attaching the ANZ’s submissions for the r 371 application, the authorities referred to in those submissions, and an affidavit of Mr Joubert, sworn 15 March 2022.
On 17 March 2022, the appellant emailed the ANZ’s solicitors, attaching her submissions dealing with the r 389(2) application.
On 18 March 2022, ANZ’s solicitors emailed the appellant, attaching the r 371 and r 389(2) application.
On 18 March 2022, the learned primary judge heard the arguments about costs and the ANZ’s applications. The r 389(2) application was filed in court that day. The appellant appeared by video and the hearing lasted approximately three and a-half hours.
Legal principles not in dispute
It seems to be accepted that the learned primary judge identified the correct legal principles for determining two issues, namely:
(a)whether there existed a genuine dispute about a statutory demand; and
(b)whether a judge should be disqualified for apprehended bias, or actual bias.
Legal principles – setting aside a statutory demand
In SGR Pastoral Pty Ltd v Christensen,[7] Bowskill J[8] referred to the test applicable on an application under s 459 of the Corporations Act:[9]
“[51] The relevant principles concerning whether there is a genuine dispute under s 459H were summarised by McKerracher J in Citation Resources Ltd v IBT Holdings Pty Ltd (2016) 116 ACSR 274 at [17]. The threshold is not high or demanding; a genuine dispute means there must be a plausible contention requiring investigation; and it is only if the applicant’s contentions are so devoid of substance that no further investigation is warranted that the applicant will fail. The court is not called on to determine the merits of, or to resolve, the dispute.”
[7][2019] QSC 229.
[8]As her Honour then was.
[9]SGR Pastoral at [51].
There is authority to the effect that an application to set aside a statutory demand is not to be conducted as a mini trial but to be dealt with in a summary way. In Superior IP International Pty Ltd v Ahearn Fox Patent and Trademark Attorneys[10] this was said by Reeves J:
[10][2012] FCA 282 at [20].
“[20] There have been numerous expositions as to what amounts to a ‘genuine dispute’ for the purposes of s 459H of the Act, and the predecessors to that section. One of the more comprehensive and useful (with respect) s that of McLelland CJ in Equity in Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 (Eyota) at 787-8 as follows:
‘It is, however, necessary to consider the meaning of the expression ‘genuine dispute’ where it occurs in s 450H. In my opinion that expression connotes a plausible contention requiring investigation, and raises much the same sort of considerations as the ‘serious question to be tried’ criterion which arises on an application for an interlocutory injunction or for the extension or removal of a caveat. This does not mean that the court must accept uncritically as giving rise to a genuine dispute, every statement in an affidavit ‘however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself, it may be’ not having ‘sufficient prima facie plausibility to merit further investigation as to [its] truth’ … or ‘a patently feeble legal argument or an assertion of facts unsupported by evidence’ …
But it does mean that, except in such an extreme case, a court required to determine whether there is a genuine dispute should not embark upon an inquiry as to the credit of a witness or a deponent whose evidence is relied on as giving rise to the dispute. There is a clear difference between, on the one hand, determining whether there is a genuine dispute and, on the other hand, determining the merits of, or resolving, such a despite. In Mibor Investments (at 366-7) Hayne J said, after referring to the state of the law prior to the enactment of Div 3 of Pt 5.4 of the Corporations Law, and to the terms of Div 3:
These matters, taken in combination, suggest that at least in most cases, it is not expected that the court will embark upon any extended inquiry in order to determine whether there is a genuine dispute between the parties and certainly will not attempt to weigh the merits of that dispute. All that the legislation requires is that the court conclude that there is a dispute and that it is a genuine dispute.
In Re Morris Catering (Aust) Pty Ltd (1993) 11 ACSR 601 at 605 Thomas J said:
There is little doubt that Div 3 … prescribes a formula that requires the court to assess the position between the parties, and preserve demands where it can be seen that there is no genuine dispute and no sufficient genuine offsetting claim.
That is not to say that the court will examine the merits or settle the dispute. The specified limits of the court’s examination are the ascertainment of whether there is a ‘genuine dispute’ and whether there is a ‘genuine claim’.’
It is often possible to discern the spurious, and to identify mere bluster or assertion. But beyond a perception of genuineness (or the lack of it), the court has no function. It is not helpful to perceive that one party is more likely than the other to succeed, or that the eventual state of the account between the parties is more likely to be one result than another.
The essential task is relatively simple – to identify the genuine level of a claim (not the likely result of it) and to identify the genuine level of an offsetting claim (not the likely result of it).”
In Australian Communication Exchange Ltd v Pilot Partners P/L,[11] Jackson J said:
[11][2017] QSC 176. Footnotes omitted.
“[18] Nevertheless, the requirement that any dispute must be genuine entails that the court must examine the facts alleged to see whether the threshold of a genuine dispute is crossed. Beyond that the court does not go. First, that is what follows from the ordinary meaning of the words ‘genuine dispute… about the existence or amount’ of a debt in s 459H(1)(a) of the CA. Second, s 459H(3) provides that, on the hearing of an application to set aside a statutory demand brought under s 459G, if the ‘substantiated amount’ is less than the statutory minimum the court ‘must, by order, set aside the demand’. The calculation of the substantiated amount requires that any ‘offsetting total’ be subtracted from the ‘admitted total’, but there will not be any ‘admitted total’ unless there is first an ‘admitted amount’ and there is no ‘admitted amount’ if the court ‘is satisfied that there is a genuine dispute between the company and the [alleged creditor] about the existence of the debt’.
[19]An applicant bears the onus of establishing the existence of a genuine dispute on the balance of probabilities. Courts have sought to articulate the nature of the inquiry involved. A recent example in the Court of Appeal of Victoria in Bendigo and Adelaide Bank Ltd v Pekell Delaire Holdings Pty Ltd is as follows:
‘In determining an application under s 459G, the Court’s function is to identify whether a genuine dispute or offsetting claim exists, not to determine any such dispute or claim. This means that the applicant under s 459G is required only to establish a ‘plausible contention requiring investigation’ of the existence of a genuine dispute or claim. The application will fail only if the contended dispute or claim is ‘so devoid of substance that no further investigation is warranted’. The resolution of the application should generally not involve the deciding of disputed questions of fact, but might require determination of short points of law.’
[20]Courts have also sought to articulate what is required by way of evidence to satisfy the court that there is a genuine dispute. A recent example in the Court of Appeal of NSW, Ligon 158 Pty Ltd v Huber, says ‘about the forensic approach to be adopted in s 459G proceedings:
(1)While there must be evidence showing a serious question to be tried or an issue deserving of a hearing that evidence cannot and need not conclusively prove the claim or otherwise be incontrovertible or substantially non-contestable.
(2)The short time allowed by s 459G(2) for the preparation of the affidavit supporting the claim for an order setting aside the demand militates against the presentation of the fullest and best evidence in some cases.
(3)In determining whether there is evidence of a genuine dispute regarding the debt, the court is generally not concerned to engage in an enquiry as to the credit of the deponent of the supporting affidavit. At the same time, it is not required to accept uncritically every statement in the affidavit that is inconsistent with undisputed contemporary documents, is inherently improbable, does not have sufficient prima facie plausibility to merit further investigation or is an assertion of facts unsupported by evidence.
(4)Inconsistent contemporaneous documents are not necessarily sufficient to defeat the company’s challenge even though they might pose difficulties for the ultimate proof of the case that it would advance if the dispute were litigated’.”

By reference to established authority, the principles applicable to whether there is a genuine dispute for the purpose of s 459H of the Act have been summarised as follows:[12]
(a)for a dispute to be “genuine” it must be “bona fide and truly exist in fact”;[13]
(b)“the grounds for alleging the existence of a dispute … [must be] real and not spurious, hypothetical, illusory or misconceived”;[14]
(c)the dispute must have a “sufficient objective existence and prima facie plausibility to distinguish it from a merely spurious claim, bluster or assertion, and sufficient factual particularity to exclude the merely fanciful or futile . … Something ‘between mere assertion and the proof that would be necessary in a court of law’ may suffice”;[15]
(d)a genuine dispute may involve a “plausible contention requiring investigation” and raise the same sort of considerations as the “serious question to be tried” test that applies in the case of interlocutory injunctions;[16]
(e)the Court should not uncritically accept statements about an alleged genuine dispute which are “equivocal, lacking in precision, inconsistent with undisputed contemporary documents … or inherently improbable …”;[17]
(f)if the dispute appears to be something “merely created or constructed in response to the pressure represented by the service of the statutory demand”, then it is not advanced in good faith and will not be regarded as genuine;[18] and
(g)whilst the underlying nature of the dispute about the existence of a debt “must be exposed”, the Court will not deal with the merits and nothing of substance will be decided.[19]
[12]Re Syncordia Group Operations Pty Ltd [2021] VSC 732.
[13]Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (l997) 76 FCR 452, 464; Malec Holdings Pty Ltd v Scotts Agencies Pty Ltd (in liq) [2015] VSCA 330 [49].
[14]Spencer Constructions 464.
[15]TR Administration Pty Ltd v Frank Marchetti & Sons Pty Ltd (2008) 66 ACSR 67, 79 [71]; Malec [49].
[16]Britten-Norman Pty Ltd v Analysis & Technology Australia Pty Ltd (20l3) 85 NSWLR 601, 608 [31]; Malec [48].
[17]Eyota Ply Ltd v Hanave Pty Ltd (1994) 12 ACSR 785, 787; TR Administration 78 [64].
[18]Creata (Aust) Pty Ltd v Faull (2017) 125 ACSR 212, 224 [47].
[19]Quadrant Constructions Pty Ltd v HSBC Bank Australia Ltd [2004] FCA 111 [4]; Malec [48].
As was summarised by Reeves J in Superior IP:[20]
“[22] … it can be seen from these decisions that, in determining whether or not there is a genuine dispute about the debt claimed in a statutory demand, the Court does not conduct a mini trial, or extended inquiry, in relation to the claims and counter-claims being made by the parties, nor does it, except in an extreme case, determine questions of credit. As well, the Court does not determine the merits of the dispute. Instead what the Court is required to do is to look to the material before it to ascertain whether there is a bona fide dispute that truly exists in fact and the grounds for alleging it are not ‘spurious, hypothetical, illusory or misconceived’.”
[20]Superior IP at [22].
The r 389(2) UCPR issue
This issue arose before the learned primary judge because of a submission made by the appellant. Some short revision of the facts is required to illuminate the point.
On 22 August 2019, the ANZ filed its application to set aside the statutory demand, together with affidavits in support.
Four days prior to that the appellant had lodged a complaint with AFCA. Those complaints overlapped with the issues raised by the statutory demand.
The ANZ’s originating application was the subject of 12 consent adjournments in total, pending AFCA’s determination of the appellant’s complaint. Adjournment of the originating application was in accordance with AFCA requirements, in particular rule A7.1 of its rules.
In each case the adjournment:
(a)was by consent;
(b)was effected in accordance with r 30, UCPR which provides that “If all the parties to an application consent to an adjournment of a hearing of the application, they may adjourn the application by … filing a consent in the approved form”;
(c)the consent adjournment was filed in accordance with the relevant Practice Direction;
(d)the effect of the adjournment was to postpone the hearing date for the originating application to a particular set date;[21]
(e)the adjournments were primarily to take into account the complaint to AFCA, and AFCA’s requirement that the proceedings before the court be adjourned so that AFCA could continue with a consideration of the complaint;
(f)some of the adjournments were made at the appellant’s request, for personal or health reasons; and
(g)the adjournments were effected by a formal act in the court registry, that is to say, the filing of a consent adjournment of application form (form 11).
[21]With the exception of one adjournment where the court calendar had not been set and on 15 September 2021 Justice Jackson amended the proposed order to ensure the application would be heard in the week commencing 7 February 2022.
Of the 12 orders, the only exception to the consent order setting a specified date was on 15 September 2021. On that occasion the court calendar had not been set and for that and other reasons the Registry referred the matter to Jackson J. His Honour amended the proposed order to a date to be fixed in the week commencing 7 February 2022. His Honour also made an order as to the costs of each side.[22] That ensured the application would be heard in the week commencing 7 February 2022.
[22]AB1954.
There is another significance in respect of the order made by Jackson J on 15 September 2021. The order was to adjourn the originating application to a date to be fixed in the week commencing 7 February 2022 and an order was made concerning costs of each side. That his Honour was dealing with a consent adjournment form signed by the parties did not deprive his Honour of the ability to make appropriate amendments if the target date for hearing was compromised in some way. That is what his Honour did. The making of that order, particularly as to costs, was plainly a step in the proceedings.
The effect of r 30 UCPR must be seen in the context of r 5 UCPR which sets out the philosophy and overriding obligations of parties and the court. It provides:
“5 Philosophy – overriding obligations of parties and court
(1)The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.
(2)Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.
(3)In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.
(4)The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.”
It is apparent that the UCPR adopted the procedure in r 30 as a means by which the parties could comply with their obligations under r 5, and thereby satisfy the philosophy under the UCPR of just and expeditious resolution of the issues in the proceeding.
Further, it is evident from the terms of r 30 that the consent that is being given and recorded by the filing of the approved form is a consent “to an adjournment of a hearing”. When an application is filed it is given a date for hearing, or at least a process is set in place to give a date for a hearing. So much is consistent with r 5 UCPR.
Consequently, when parties utilise the process in r 30 UCPR, they are engaging with the court to alter one factor in the application, namely the date when the court is engaged to hear the application. Because the form is an approved form under the UCPR, and filed in the registry, the step taken between the parties is a step also taken with the court.
In Artahs Pty Ltd v Gall Standfield & Smith (A Firm)[23] this Court referred to the issue of what a “step” was for the purposes of the UCPR.[24]
“[3] The expression ‘step’ is not defined in the UCPR. Its ordinary meaning in this context is: ‘A move or proceedings, as towards some end or in the general course of action; the first step towards peace’. Whether a step has been taken in a particular proceeding will turn on the pertinent circumstances in that case. It is clear from the authorities discussed by Peter Lyons J that, to be a step under r 389 it must, consistent with that word’s ordinary meaning, progress the action towards a conclusion. I agree with Peter Lyons J that it is not necessary the step be something required by the UCPR. For example, the filing and service of a reply or a subsequent pleading would usually amount to a step in the action.”
[23][2013] 2 Qd R 202; [2012] QCA 272.
[24]Artahs at [3]. Footnotes omitted.
In our view, the filing of a consent adjournment of the hearing of an application, under r 30 UCPR, is plainly a step in the proceeding. The filing of the approved form to register that consent is something which is required by r 30 in order to give effect to the consent between the parties. The consent of the parties is to adjourn the “hearing of the application”, and thus it is a step which effects the due process of the court itself. But for that fact, the hearing date for the application would remain and the court would ordinarily deal with the application on that date.
Further, the filing of a consent adjournment under r 30 UCPR signifies that both parties are committing to a step “taken with a view to continuing the litigation between the parties”.[25] The parties are to be taken, with the court’s agreement, to be setting a new date for the hearing of the application. That is hardly something that could be described as not continuing the litigation.
[25]Citicorp Australia Limited v Metropolitan Public Abattoir Board [1992] 1 Qd R 592 at 594.
It is, in our view, significant that the process of filing the 12 consent orders was one taken with the consent of the appellant. In other words, the appellant herself sought to postpone the hearing date of the originating application, for reasons which were of benefit to her either because of AFCA proceedings or because of her own health and wellbeing. In such circumstances, it hardly lies in the mouth of the appellant to complain that the consent adjournments were not a step in the proceeding.
In our view, each of the appellant and the ANZ, by their consent orders, took action to ensure that the matter was progressing and a hearing date was set. On each occasion, by a court sanctioned process, they were acting in an expeditious way under r 5(3) UCPR, and within the scope of the facilitating the just and expeditious resolution of the issues, within r 5(1) UCPR.
It was therefore unnecessary to make an application under r 389(2) UCPR. The learned primary judge’s conclusion to that effect was, respectfully, correct.
Much attention was given before the learned primary judge, and in various grounds of appeal, to the r 389(2) issue. It originated because the appellant emailed the court in March 2022, contending that the ANZ needed leave under r 389(2). That has proved misplaced. So too was the appellant’s reliance upon a decision in ANZ Banking Group v Lawson.[26] In that decision the parties were brought before the court because the judge sought to know why the proceeding should not be stayed for want of prosecution. That was the basis of the exercise of discretion. Nothing was said, beyond a comment by way of obiter dicta, as to the correct application of r 389 UCPR.
[26][2002] QDC 41.
The conclusion above means it is unnecessary to consider whether, if r 389(2) applied, leave to proceed should have been given nunc pro tunc. If it were necessary to express a view, we would have concluded that the learned primary judge was correct that such leave should be granted in the circumstances.
These conclusions deal with grounds 2(o)-(r), (x) and (bb) in the amended notice of appeal in CA 3513/22. Those conclusions also deal with grounds 2(a)-(k) of the notice of appeal in CA 4341/22.
Appeal against Costs – 18 March 2018
The appellant challenges the orders made on 18 March 2018 in appeal CA 4341/22. The substantive part of her contentions relate to the r 389 issue, to which we will come. However, she also raises:
(a)illegality in the conduct of the ANZ prior to the statutory demand being served;[27] and
(b)that the litigation is in the public interest because it concerns the ANZ’s conduct, contraventions in the past, and insolvency.
[27]Grounds 2l-2q.
The orders made on 24 February 2022 were, relevantly:[28]
“3.Pursuant to r 436(2) of the Uniform Civil Procedure Rules 1999 (Qld), the applicant is granted leave to rely on the Smith affidavit in evidence in support of the application.
4.Pursuant to s 459H of the Corporations Act 2001 (Cth), the statutory demand dated 1 August 2019 served on the applicant by the respondent be set aside.
5.The parties will be heard in respect of costs.”
[28]AB 152.
The orders made on 18 March 2022 were as follows:[29]
[29]AB 153.
“1.Pursuant to rules 371(2) and 389(2) of the Uniform Civil Procedure Rules 1999 (Qld) to the extent necessary:
(a)declare the steps taken by the parties in the proceeding from 15 September 2021 up to and including 7 February 2022 are effectual; and
(b)the parties have leave nunc pro tunc to take further steps in the proceeding.
2.The respondent pay the applicant’s costs on the standard basis of the originating application filed 22 August 2019 to set aside the respondent’s statutory demand dated 1 August 2019.
3.The respondent pay the applicant’s costs on the standard basis of the application filed 24 January 2022 to set aside the subpoenas but limited to the subpoenas to give evidence issued to David Gonski and Shayne Elliott.
4.There be no order as to costs in respect of the application to set aside the two subpoenas to give evidence issued to Michelle Jablko and Jo McKinstray.
5.Subject to further order, the costs order not be assessed until after the determination of any appeals from the orders of this Court made on 4, 7 and 24 February 2022 and today’s orders in this proceeding.”
The appellant’s written submissions made no submission as to the costs orders themselves, that is, beyond those referred to in paragraph [62] above. On one view, it may be taken that if the appellant fails in respect of other issues concerning the 18 March 2022 orders, there is no basis otherwise to interfere with the costs orders.
As will become apparent, in our view, the learned primary judge made no relevant error in her reasons for the orders made on 24 February 2022, nor on 18 March 2022. In particular, in the present context, the appellant failed in her challenge to whether any step had been taken in the proceedings in the previous two years. Thus, leave to proceed was not required under r 389, nor order under r 371 UCPR.
As to the costs ordered on 18 March 2022, the learned primary judge reasoned:[30]
(a)the costs before Boddice J had been reserved, but two of three subpoenas had been set aside by consent, and the third was set aside after argument;
(b)the application to set aside the fourth subpoena was set for hearing on 7 February 2022; it was set aside;
(c)the appellant had raised that the proceedings were a public policy matter and therefore no order as to costs should be made; however, the litigation was, in truth, an adjudication of private rights between the parties;
(d)issues as to the recusal application were separate from the main issue as to the statutory demand;
(e)whilst her Honour was not satisfied that there has been an abuse of process in serving the statutory demand, her Honour had found that the ANZ was solvent on the balance of probabilities; however, that did not warrant a special costs order departing from the usual order that costs follow the event; and
(f)as a matter of the exercise of her Honour’s discretion, costs should follow the event, in which the ANZ was successful.
[30]AB 146-147.
In our view, nothing raised by the appellant reveals any error in that reasoning. The statutory demand was set aside, the subpoenas were all set aside, and the appellant failed in her challenge to the proceedings being stayed. There is no good reason why costs should not follow the event.
Further, the litigation is not a matter that attracts any relevant public interest or public policy. It is private litigation adjudicating on private rights arising out of the service of a statutory demand.
In so far as the appeals challenge the costs orders, the appeals fail.
Application for recusal
On 14 February 2022 the appellant sent an email to the learned primary judge’s Associate.[31] It sought the primary judge’s recusal for apprehended and actual bias. The email was 12 pages long and contained at least 80 separate paragraphs which addressed many issues of fact and law. It was copied to the ANZ’s solicitors.[32]
[31]AB 160.
[32]Mr David, Mr Goh and Mr Joubert of Herbert Smith Freehills.
Relevant parts of the email were as follows:[33]
[33]Emphasis added.
“This email is written with absolute fear and terror that I will be deprived of further natural justice as I was on Monday 7 February 2022, because I am asking a Supreme Court Judge to recuse herself and where I feel that this request may affect the outcome of the decision that has still not been handed down if Her Honour refuses. It is a difficult thing to raise this, but I do so respectfully. I do so as it is a right I have at law.
This is an application for Her Honour to recuse herself, and not force me as a self-represented litigant to make an application for Her Honour to be disqualified from handing down her decision in this matter. It is based on apprehended bias and actual bias. In both cases Her Honour will make the decision about recusal and/or disqualification. It is putting the parties to additional cost should Her Honour decide that this should proceed to an application for disqualification. Her Honour in her decision not to grant me an adjournment raised r 5 of the Uniform Civil Procedure Rules 1999 (Qld) about time and cost of legal proceedings. To force me to make an application for disqualification would not be in keeping with this rule.
…
My application for Recusal[34]
I would like Her Honour to recuse herself. As I am self represented this should be done by Her Honour instead of requiring me to make a formal application and argue that Her Honour should be disqualified from these proceedings. An informal application for Her Honour to recuse herself is acceptable and this is my application. My application for recusal is based on apprehended bias and/or actual bias as follows:-
…
2.The orders I request Her Honour make are :-
a.That Her Honour be recused from further involvement in these proceedings; and
b.That Her Honour is precluded from handing down any further decision in these proceedings until either this recusal application and/or an application for disqualification of Her Honour is determined; …”
[34]AB 161.
Then followed sections dealing with the “Relevant law”,[35] and submissions of fact and law under the headings:
(a)“No disclosure prior to commencement of hearing”,[36]
(b)“Issues of Apprehended bias and/or actual bias”,[37]
(c)“The Applicant’s solvency”,[38]
(d)“Subpoena set aside for Shayne Elliott”,[39]
(e)“Her Honour did not give the required assistance and or consideration to a self-represented litigant”,[40]
(f)“I tried to take other avenues through the Courts …”;[41] and
(g)“Background to the settlement and why ANZ settled”.[42]
[35]AB 161.
[36]AB 164.
[37]AB 164.
[38]AB 167.
[39]AB 169.
[40]AB 170.
[41]AB 171.
[42]AB 172.

The email ended:[43]
“I respectfully ask that Her Honour give serious consideration to this application for her to recuse herself and not make me make an application to have her disqualified as a self-represented litigant.”
[43]AB 172. Emphasis added.
The learned primary judge dealt with this application on the papers. In other words, there was no hearing at which oral submissions or further written submissions were made.
The appellant’s grounds for appeal include many which complain about this application and the process by which it was heard. They include the following:
(a)judgment on the main issue of setting aside the statutory demand should not have been handed down where there had been no hearing on the merits on the recusal application;[44]
(b)the parties were not told that her Honour had accepted the application for decision or that it would not have a hearing on the merits;[45]
(c)that dealing with the application without a hearing on the merits was unreasonable and unjust;[46]
(d)in dealing with the application her Honour wrongly had regard to “extraneous evidence” or “extraneous material”;[47] and
(e)her Honour erred in not making disclosure about her relationship with the ANZ, ANZ’s barristers and previous legal firms prior to a hearing on the merits.[48]
[44]CA3513/22, grounds 2(a) and (k).
[45]CA3513/22, grounds 2(b)-(f).
[46]CA3513/22, ground 2(h).
[47]CA3513/22, grounds 2(b), (c) and (l).
[48]CA3513/22, grounds 2(i) and (j).
Finally, in the proposed second amended notice of appeal in CA3513/22,[49] ground 2(cc) contends there was an error in failing to make a particular disclosure about Herbert Smith Freehills without openly ventilating that at a hearing on the merits.
[49]Attached to the application to adduce evidence filed 26 July 2022.
Some matters should be noted before further consideration is given to this issue. The appellant is self-represented but, unlike many other such litigants, is an experienced litigant and advocate. She defended herself in a nine-day trial regarding insolvent trading[50] and appeared in at least two appeals in this Court.[51]
[50]Tremco Pty Ltd v Thomson [2018] QDC 109, and [2018] QDC 101.
[51]Thomson v Tremco Pty Ltd [2019] QCA 18, and Bentleys (Sunshine Coast) Pty Ltd & Ors v Thomson [2018] QCA 358 and [2019] QCA 104.
In our view, the appellant’s email of 14 February 2022 made it plain that she was seeking to have her application for recusal heard on the papers. Her request for recusal, at the same time urging that her Honour “not force me as a self-represented litigant to make an application”, and urging that it would put the parties “to additional costs should Her Honour decide that this should proceed to an application for disqualification”, leave little doubt as to what was being requested. The appellant was quite explicit in the email, asking for recusal and explaining that as she was “self-represented this should be done by Her Honour instead of requiring me to make a formal application”. Further, the appellant had a section dealing with the orders she requested that her Honour make.
In addition to the express request that the application for recusal be dealt with without proceeding to a formal application, the email itself contained lengthy and detailed submissions on the facts and law that the appellant wished to raise on the application. The email was by no means a bare application, nor a skeleton of an argument. It was a comprehensive set of submissions on an application which was sought to be heard on the papers.
In the circumstances, there is no validity in her complaint that there was no hearing on the merits or that further matters should have been dealt with before such a hearing.
The requirements of natural justice (which includes procedural fairness) vary according to the circumstances of each case.[52] In circumstances where the appellant seeks that an application be heard on the papers to avoid unnecessary costs to herself and other parties, there can be no denial of an opportunity to be heard when the judge does as the appellant requests.
[52]Kioa v West (1985) 159 CLR 550, at 585-586.
Further, because the ANZ led no evidence and made no submissions on the issue, the appellant was not deprived of any opportunity to contradict a contrary argument.
There is no merit in these grounds.
Any basis for apprehended bias
Regardless of the way in which the grounds were formulated in the notices of appeal, the appellant’s outline seems to distil the points she wishes to raise. In this respect the appellant has identified the question whether a hypothetical fair-minded lay observer would fear that the learned primary judge might not decide the case on its merits as a consequence of:[53]
(a)her Honour’s experience in various matters as a consequence of being a professional lawyer, when there was no evidence of that before the court;
(b)potential to pre-judge the ANZ’s solvency when the ANZ did not have the full set of financial statements in evidence, though they were said to be publicly available; and
(c)not granting the appellant an adjournment after late service of written submissions, thus denying the appellant an opportunity to present the best case she could.
[53]Appellant’s submissions filed 18 September 2022, paragraph 7.
To that may be added what the appellant explained as the basis for recusal, namely:[54]
(a)the failure to make any disclosure as to whether her Honour or her family had any relationship or association with the ANZ, or close relationships or ex-business partners that still worked for legal firms that retained the ANZ;
(b)comments made by her Honour in relation to the process that is applicable in obtaining a credit report, when that was not referred to in evidence;
(c)the lack of evidence concerning an additional document attached to the credit report, namely a company search; the ANZ’s submissions stated that the search came with the credit report;
(d)that a fair-minded lay observer would apprehend her Honour’s inability to bring an impartial and unprejudiced mind to the question of ANZ’s insolvency because there was not a full set of financial statements in evidence;
(e)her Honour’s confusion between the ANZ’s Model Litigant Policy in evidence and the Model Litigant Principles of the court; there was no evidence before the court about the court’s Model Litigant Principles, but there was evidence of the ANZ’s Model Litigant Principles; and
(f)apprehension that her Honour might not bring an impartial and unprejudiced mind to the resolution of whether Mr Elliott should give evidence under subpoena.
[54]Appellant’s submissions filed 18 September 2022, paragraph 32.
In supplementary submissions filed on 6 October 2023, the appellant also raised the issue of whether the learned primary judge’s conduct at the hearing on 18 March 2022 proved apprehended bias.[55] These contentions concern an event where the learned primary judge attended at the offices of Herbert Smith Freehills, as a panellist in an event conducted by the University of Queensland, and under the organisation called Women in Law. We shall return to this topic later.
[55]Supplementary submissions filed 6 October 2023, paragraphs 71-82.
The learned primary judge distilled eight matters as having been raised in the informal application for recusal. No criticism has been levelled at her Honour’s analysis in this respect. The categories were:[56]
(a)the public were not admitted to a public hearing;
(b)no disclosure was made prior to the application being heard;
(c)comments regarding an exhibit to an affidavit of Mr Smith;
(d)the ANZ’s solvency;
(e)setting aside the subpoena addressed to Mr Elliott;
(f)failure to give required assistance or consideration in respect of a self-represented litigant;
(g)comments in respect of “other avenues” to pursue a claimed debt; and
(h)other background matters.
[56]Reasons below at 37.
There is no contention made by the appellant that the learned primary judge misapprehended the applicable legal principles, either in respect of apprehended bias or in respect of actual bias.
At least several of the matters listed above do not appear to be pursued upon this appeal. They are: (a) the public were not admitted to a public hearing, (g) comments in respect of “other avenues” to pursue a claimed debt, and (h) other background matters. No further comment on them need be made.
We deal with the other points sequentially.
No disclosure prior to the hearing

As the learned primary judge recognised, the appellant raised two categories of alleged non-disclosure. The first was whether her Honour needed to disclose whether she held any bank accounts, mortgages or shares in the ANZ. The second was in relation to potential relationships that her Honour had with firms of solicitors and their clients, and counsel retained by those firms. Her Honour noted that the appellant had raised concerns as to the ANZ being a client of Clayton Utz, King & Wood Mallesons and Corrs Chambers Westgarth.[57]
[57]Reasons below at [56]-[57].
As to the first category (bank accounts, mortgages and shares) her Honour considered that no disclosure was required.[58] In reaching that determination her Honour had regard to the “Guide to Judicial Conduct”.[59] Part of the guidelines was that a judge should disclose the fact of shareholding in open court, thus giving the parties an opportunity to make submissions in relation to disqualification or otherwise. Given that fact, when her Honour said no disclosure was required, plainly that was based on the fact that her Honour held no shares in the ANZ, or at least none which could realistically be affected by the outcome of the litigation.[60]
[58]Reasons below at [56].
[59]“Guide to Judicial Conduct”, 3^rd Ed., Australian Institute of Judicial Administration Incorporated.
[60]Ebner v The Official Trustee in Bankruptcy (2005) CLR 337, [2000] HCA 63, at [37].
As to the balance (bank accounts and mortgages) her Honour’s response must be seen in the light of her application of the classic test for apprehended bias as laid down in Ebner v Official Trustee in Bankruptcy.[61] The test 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 in issue. The fair-minded lay observer has attributed to them: (i) an awareness of, and a fair understanding of, the nature of the decision, (ii) the context in which it was made and the circumstances leading up to the decision, (iii) that the judge is a professional lawyer whose training, tradition and oath require him or her to discard the irrelevant, the immaterial and the prejudicial, but not (iv) a detailed knowledge of the law.
[61](2000) 205 CLR 337. See also Livesey v New South Wales Bar Association (1983) 151 CLR 288 and Parbery v QNI Mentals Pty Ltd [2018] QSC 213.
An application of the test based on the attribution to the fair-minded observer does not include an approach predicated on a fishing expedition about what the judge might have by way bank accounts or mortgages, nor any such thing held by members of the judge’s family. To take that approach is to turn the fair-minded lay observer into a suspicious busybody, fishing for the unknown. That approach is unwarranted. No basis has been shown on the appeal as to why her Honour’s approach in this respect was not correct.
As to the second category, potential relationships with solicitors, clients and counsel, the learned primary judge revealed her history in the law and in particular her employment as an articled clerk and employed solicitor at Clayton Utz for two years or so, her employment as an employed solicitor at Mallesons Stephen Jaques[62] for a number of years ending in 2006, and her employment as a solicitor and then partner at Corrs Chambers Westgarth between 2006 and 2020.[63] As her Honour pointed out, she left the last firm in 2020, and therefore considered that there were no relevant issues arising in relation to current clients of Corrs Chambers Westgarth.
[62]The predecessor firm to King & Wood Mallesons.
[63]Reasons below at paragraphs [58] – [59].
Once again nothing has been raised on the appeal that would suggest her Honour’s approach was in error. No substantive issue has been raised that would cause a fair-minded lay observer to be concerned about her Honour’s past association with the various firms. Nothing has been suggested to the effect that her Honour had, within those professional contexts, obligations to the ANZ as a client which would in some way impact upon her performance of her duties as a judge.
This is another example of suspicions being elevated and improperly attributed to the fair-minded lay observer. There is no basis to think that her Honour’s conclusion was affected by error.
Finally, there is no merit in the appellant’s complaint that her Honour had regard to the AIJA’s “Guide to Judicial Conduct”. It is a long-standing published text and plainly relevant.
This ground lacks merit.
Extraneous material

In her written submissions[64] the appellant identified one of the issues concerning her recusal application and the way it was dealt with, as being that “extraneous material” was taken into account.[65] It is difficult to understand precisely what the appellant’s complaint is in this respect. An analysis of the outline suggests it includes the following:
(a)an additional exhibit to the affidavit of Mr Smith was not referred to in that affidavit or the index of exhibits and ANZ did not lead any evidence about the process that it used to obtain it;[66] the appellant complains about comments made by the learned primary judge as to that document and in respect of the ANZ’s position that it came with a company search; and
(b)the learned primary judge took into account the court’s Model Litigant Principles but there was no evidence before the court about them; there was evidence of the ANZ’s Model Litigant Principles.[67]
[64]Filed 18 September 2023.
[65]Appellant’s outline, paragraphs 2, 7(a), 32(c) – 32(f), 36, 44 and 49.
[66]Outline paragraphs 32(c)– 32(f).
[67]Appellant’s outline paragraphs 32(i) – 32(j).
Exhibit to the affidavit of Mr Smith

As to the additional exhibit to the affidavit of Mr Smith, the learned primary judge dealt with this in detail.[68] Central to the objection raised by the appellant below, and before this court, were comments made by the learned primary judge in respect of that document. The central submission made on this point before this court is in paragraph 32f. of the appellant’s outline:
“The fair-minded lay observer with his attributes of knowledge that the Judge was a professional lawyer before her appointment as a judge, would reasonably apprehend that Her Honour might not bring an impartial and unprejudiced mind to the resolution of whether this report is a defect that should have been resolved within the 21 day statutory compliance period to comply with a statutory demand. Especially, where there is no evidence before the Court as to the procedure ANZ Bank used to obtain the company search, or that it had been included in the affidavit by mistake and where Her Honour states the procedure to get both the company search and the credit report was by taking an extra step and selecting a tick box to get the additional credit report comes from Her Honour’s prejudgment from her experience of ordering these reports as a lawyer and not the evidence before Her Honour. Her Honour’s mind was not open to persuasion about this report.”
[68]Reasons below at [64] – [69].
As is apparent from that passage, the appellant was urging that it was a matter of apprehended bias as well as actual bias. However, nothing has been advanced to support a case of actual bias.
The facts concerning this document are set out in some detail in the decision by the learned primary judge. This synopsis will suffice for present purposes:
(a)the appellant questioned whether the “additional exhibit” was of such a character that it meant there was no jurisdiction to deal with the application to set aside the statutory demand; because of that, counsel for the ANZ made submissions in respect of the exhibit;[69]
[69]Reasons below at [64].
(b)the transcript recording the exchange which is the subject of the appellant’s complaints both below and before this court, is set out in paragraph 66 of the reason below; the essential steps outlined by counsel for the ANZ were that:
(i)commercial providers were available to provide a person with an ASIC report, one of them being InfoTrack;
(ii)the rules required that an applicant to set aside a statutory demand put a company search of itself into evidence;
(iii)the ASIC search was exhibited to the affidavit;
(iv)in addition, a credit report was included; by reason of markings and stamping on the document itself, particularly at pages 612-613, her Honour could infer that when a request for the search was put in with InfoTrack, the total document is what they got back;
(v)the actual ASIC report stated at page 612, the words “end of document”; however, as counsel put it, “but it’s all gone in”;
(vi)at that point her Honour observed that the result was that “this is actually a more complete report than if you’d gone for one that didn’t have this included”;
(vii)because the appellant had complained about its inclusion, counsel for the ANZ had indicated that the ANZ would not read that part of the document; however, the appellant still complained that it should not be in the exhibit; and
(viii)at that point her Honour responded saying that it was difficult to see that “this point actually goes anywhere when that is an entire document”, and the “entire document should be put in unless there’s a reason not to”.
The affidavit of Mr Smith deposed that he caused a search to be carried out on the records maintained by ASIC in respect of the ANZ, and that “A copy of the results from that search commences at page 21 of the Bundle”.[70] The InfoTrack search commences at page 21 of the exhibit to his affidavit,[71] and the company search itself continues for a considerable number of pages. It is apparent from the first page of the company search,[72] that there were two linking tabs that might be utilised, one to get “Full ASIC Results”, and the other to obtain the “Full Credit Report”. It is then apparent from the next page that the first part of the document is the “ASIC Current Organisation Extract”.[73] That document ended at page 632 of the exhibit, which is the page referred to as 612 in the extracts of the transcript.[74] The document immediately following, commencing at page 633 of the exhibit, was headed “Credit Report”. What is apparent from the explanation given by counsel for the ANZ, and reflected in the documents themselves, is that the credit report was part of the total document which contained the ASIC extracts followed by the credit report. So much is apparent, as counsel for the ANZ pointed out to the learned primary judge, from the page numbering at the bottom of the exhibit, where the ASIC report ended at a page 612 (page 632 of the exhibit) and the credit report commenced at page 613 (page 633 of the exhibit).
[70]AB 328, paragraph 6.
[71]AB 351.
[72]AB 351.
[73]AB 352.
[74]AB 360.
On the face of that evidence, the inferences that might be drawn from the document itself are those which were expressed by counsel for the ANZ, and adopted by the learned primary judge in explaining how the complete report contained the two component parts. The appellant’s submission to this court that there was no evidence in relation to the credit report should be rejected. Sufficient information was contained in the document itself to draw the inference that the link at the start of the document had been utilised to obtain not only the ASIC extract but also the credit report. The pagination supported those inferences.

That is sufficient to reject the appellant’s complaint to this court, concerning comments made by the learned primary judge about ticking boxes to get reports. Moreover, it is significant that counsel for the ANZ took the position that the ANZ would not rely upon the credit report, that being a response to the appellant’s complaints. However, the learned primary judge observed that the complete document (being both the ASIC extract and the credit report) should be tendered as one complete document rather than leave part of it to one side. We respectfully agree with her Honour’s observation. That conclusion by her Honour was appropriate given that Mr Smith deposed that the document he exhibited was the result of the search he caused to be made.
In our view, there is no prospect whatsoever that a fair-mined lay observer would apprehend that the exchange about that document meant that her Honour might not bring an impartial and unprejudiced mind to the resolution of the issues. Further, there is no basis whatever to conclude that anything said by her Honour in respect of that exhibit signified that her Honour had prejudged any matter of relevance, or that her Honour’s mind was not open to persuasion about the report. Even that assumes that the report mattered, which it did not.
This part of the appeal lacks merit.
The ANZ’s solvency

One of the matters raised in the appellant’s informal recusal application, concerned the impact of a decision adverse to the ANZ on the application to set aside the statutory demand. This is a point that is maintained before this Court.[75] The way it was put is as follows:
“32.…
(h)The fair-minded lay observer with his attributes would apprehend if Her Honour did decide regarding ANZ’s solvency that it was not done on the merits of the evidence before the Court and had not brought an impartial and unprejudiced mind to the resolution of the question she needed to answer around insolvency. That any decision she makes is not open to persuasion as there was not a full set of financial statements of ANZ Bank in evidence. The piecemealed evidence was incomplete and five months old at the date that it was filed with the court and any decision on insolvency would be by prejudgement that ANZ is solvent as it is not possible on the evidence for Her Honour to do this.
…
47.A decision adverse to ANZ Bank in the primary proceedings and now the appeal leaves ANZ Bank presumed insolvent for 3 months. This is adverse to Thomson’s prospects of success. A Court will not want to be placed in a position to make a decision of that magnitude even if that decision is open to it, because ANZ Bank has inflicted this injury on themselves and the clumsiness of trying to stanch their wounds has made it worse.”
[75]Appellant’s outline paragraph 32(g)-(h) and 47.
One again, the appellant frames her case both on the basis of apprehended bias and actual bias. However, nothing has been put forward which would suggest that her Honour had a closed mind or prejudged any issue. Any issue of actual bias can be put aside.
The foundation for the appellant’s attack on this point, both below and before this Court, related to comments made by the learned primary judge in the course of the hearing regarding the question of solvency of the ANZ, including inquiring whether the appellant was relying on evidence that the ANZ was not able to pay its debts as and when they fell due.[76] The relevance of the point is in relation to paragraph 2 of the ANZ’s application to set aside the statutory demand. The first order sought was an order under s 459H of the Corporations Act, setting aside the statutory demand. Paragraph 2 sought an order in addition or in the alternative, under s 459J(1)(b) of the Corporations Act, that the statutory demand be set aside. Section 459J relevantly provides:
“Setting aside demand on other grounds
(1)On an application under section 459G, the Court may by order set aside the demand if it is satisfied that:
(a)because of a defect in the demand, substantial injustice will be caused unless the demand is set aside; or
(b)there is some other reason why the demand should be set aside. …”
[76]Reasons below at [70], and appellant’s outline, paragraph 32(g).
The “other reason” relied upon by the ANZ was that the ANZ was, at all relevant times, solvent and the appellant was aware of that. In the circumstances, it was contended, the serving of the statutory demand was an abuse of process or the subversion of the statutory regime under the Corporations Act.
The learned primary judge set out the appellant’s complaint made at first instance:[77]
“[72] The complaint made by the respondent in this regard is stated in the email as follows:
‘32.In the hearing of an application to set aside a creditors statutory demand made against ANZ, one of Australia’s big four banks, it would be difficult for any Judge to approach the hearing without a prejudgment that the Bank is solvent. But this prejudgment would be based on information obtained prior to entering the Court room through media, holding bank accounts with ANZ, loans being entered into between ANZ and the Judge, possible share ownership in ANZ and experience as a solicitor working for legal firms where ANZ is a client.
33.The only way that this prejudgment could not exist is for the Judge to come to the hearing with an open mind to base the decision solely and only on the evidence before the Court, and not take into account experience and knowledge that Her Honour gained through the media, being associated in some way with ANZ through a bank account, loan or shareholder and as a solicitor and the law’.”
[77]Reasons below at [72].
Having observed that the ANZ had filed and served evidence on which it relied to establish the ANZ solvency for the purpose of raising the ground under s 459J(1)(b), the learned primary judge noted the conclusion advanced by the appellant below:[78]
“[75] Further, the respondent concludes:
‘47.The fair-minded lay observer with his attributes would apprehend if Her Honour did make a decision in regard to ANZ’s solvency that it was not done on the merits of the evidence before the Court and had not brought an impartial and unprejudiced mind to the resolution of the question she needed to answer around insolvency. That any decision she makes is not on the incomplete set of financial records but on a prejudgement that ANZ is solvent. It is not possible on the evidence for Her Honour to do this’.”
[78]Reasons below at [75].
As will be apparent, the point advanced before this Court is essentially identical to the point advanced below. In our view, the point lacks merit for a number of reasons.
First, what is plain from the submission made below as well as the submission made before this Court, is that there is no factual basis for what is advanced. It amounts to mere assertion that any judge would find it difficult to approach the hearing of an application to set aside a statutory demand made against a bank, or to consider the issue under s 459J(1)(b), without some form of prejudgement. It is rank speculation without foundation. So much is evident from the suggestion that the prejudgement would be based on media reports, the holding of bank accounts, having loans from the bank and possible share ownership. There is not the slightest suggestion that the learned primary judge fitted into any of those categories.
Then, the appellant also includes “experience as a solicitor working for legal firms where ANZ is a client”. That falls well short of any rational basis that a fair-minded lay observer might have for concern over the judge’s approach to the issues. The fact that a solicitor worked in a legal firm which acted for a bank does not mean that the particular solicitor acted for the bank, and even if it did, that the solicitor who then later became a judge was unable to bring an impartial mind to the issues.
Secondly, the suggestion that the fair-minded lay observer would apprehend a decision on the ANZ’s solvency would not be on the merits of the evidence because the financial records in evidence were incomplete, is nonsensical. If the evidence was truly incomplete, all the fair-minded lay observer would apprehend is that the judge would make a decision based upon the evidence adduced in court. If it was incomplete in a material way, that might impact upon the ability to reach a conclusion. But the fair-minded lay observer would think no more than that. In our view, it is not the case that the fair-minded lay observer would go further to apprehend that the judge would disobey the duty to decide the matter appropriately on the evidence adduced.
Thirdly, the fact that the learned primary judge inquired, relevant to the issue under s 459J(1)(b), whether the appellant was relying on evidence that the ANZ was not able to pay its debts as and when they fell due, does not raise any question that would trouble the mind of a fair-minded lay observer. Given that the ANZ was advancing a contention that the appellant was aware of the bank’s solvency, with the consequence that her service of a statutory demand was an abuse of process, that would obviously prompt any judge to ask a person in the appellant’s position whether they were relying on evidence of an inability to pay debts as and when they fell due, the classical definition of insolvency. The question does not give rise to any apprehension that a judge cannot bring an impartial and unprejudiced mind to the issues in question.
The learned primary judge was, in our respectful view, right to dismiss this attack as meretricious.
Failure to give assistance and consideration to a self-represented litigant

This was an issued raised before the learned primary judge, and again before this Court. In framing the issue before this Court, the appellant submits:[79]
“Whether Williams J erred in not providing [the appellant] as a self represented person adequate time to respond to submissions and applications served on her at short notice and on the morning of hearings.”
[79]Outline, paragraph 15.
The appellant’s contentions relate to the hearing on 18 March 2022. Her concerns relate to service that morning of an application under r 389(2) and r 371 UCPR, to regularise steps taken without leave. As it was put in the appellant’s outline:[80]
“41.On the morning of 18 March 2022 ANZ Bank served [the appellant] with an application under r 389(2) and r 371 of the UCPR to regularise the steps taken without leave approx. one hour prior to the commencement of the costs hearing. ANZ Bank filed it with the Court at the commencement of the hearing and asked Williams J to make a timetable for the hearing of this application if she so was of the mind to. [The appellant] made submissions that the late service prevented her as a self-represented person from making submissions without adequate time to do so. Williams J raised herself that ANZ Bank could make this application without notice under the UCPR and proceeded to hear this application and made orders requested by ANZ Bank without the orders she made on 24 February 2022 being set aside.”
[80]Appellant’s outline, paragraph 41.
The learned primary judge dealt with the issues raised on this point on the basis of an analysis of what occurred at the hearing on 18 March.[81] Her Honour’s findings about the sequence of events and what was said are not the subject of any challenge on appeal. Significant aspects include the following:
(a)the hearing commenced at 10.00 am and proceeded until about 12.30 pm, when it was adjourned until 2.30 pm; it then resumed and concluded at 5.20 pm; as her Honour observed,[82] the hearing occupied five and a-half hours, well in excess of the usual length of matters in the application list;
(b)the appellant was given the opportunity to make submissions and take the court to material to which she wished to refer;[83]
(c)the appellant’s concerns about being able to deal with submissions by the ANZ was the reason the matter was adjourned at 12.30 and resumed at 2.30;[84] at that point the appellant made an application for the matter to be adjourned, which was refused; and
(d)one of the concerns raised by the appellant below, but not before this Court, concerned reference to a case by counsel for the ANZ; that led to a submission concerning apprehended bias; her Honour dismissed that submission.[85]
[81]Reasons below at [90]-[99].
[82]Reasons below at [91].
[83]Reasons below at [92].
[84]Reasons below at [93].
[85]Reasons below at [94]-[98].
Before this Court the appellant refined her contentions to matters relating to the ANZ’s application under r 389(2) and r 371 UCPR.[86]
[86]Appellant’s outline, paragraph 41.
In order to evaluate this issue, some background facts need to be established. These relate to when the appellant was aware of an issue concerning r 389(2) UCPR and whether it might be concluded that she was in a position to deal with the argument on 18 March 2022.
On 15 March 2022 the appellant sent an email to the associate of Boddice J, entitled “URGENT Breach of r 389(2) UCPR”.[87] The relevant points made in the email are as follows:
[87]AB 1993.
(a)on 6 March 2022 the appellant became aware “that ANZ bank were required pursuant to r 389(2) of the Queensland UCPR to apply for an order to take a step in the proceedings because it had not taken one for more than two years before it made its application to set aside the subpoenas”;
(b)the ANZ neither applied for such an order, nor made the appellant aware that it was required to do so;
(c)the appellant referred to the decision in ANZ Bank v Lawson;[88] she set out the essential facts, observing that they are “identical” to the facts of her matter;
(d)she referred to the 12 consent adjournments, and the fact that they were made because of AFCA’s requirements;
(e)she observed that: “The only steps that were taken in these proceedings during that two year and four month period was consent to adjournments filed”; she argued “They did not progress the matter because AFCA rules do not permit any step being taken in the proceedings whilst the complaint is before AFCA”;
(f)she noted that the decisions made by Boddice J and Williams J in February 2022 “should not have been heard until an application pursuant to r 389(2) of the UCPR had been made”, and no such application had been made;
(g)she had written to the learned primary judge and “advised her that the costs hearing this Friday could not proceed as she has no jurisdiction to hear any arguments because no application was made pursuant to r 389(2)”;
(h)she observed that she had, that day, been served with an affidavit and submissions in regard to r 389(2) by the solicitors for the ANZ;
(i)citing Ghosh v NBN Limited,[89] the appellant contended that no arguments could be advanced in regard to any new application if an application had not been made under r 389(2);
(j)further, by reference to Way v Primo Rossi Pty Ltd,[90] that no step could be taken after two years without an order of the court, and there was no exception to that; and
(k)she urged Boddice J to assist her by assisting Williams J in relation to the law in respect of r 389(2).
[88]The appellant wrongly gave it the citation [2022] QCA 41, whereas it is in fact [2022] QDC 41.
[89][2014] QCA 53.
[90][2018] QCA 203, at [7].
That email was copied to the solicitors for ANZ.
On 7 March 2022, the appellant sent an email to the associate of Boddice J, copied to the solicitors acting for the ANZ.[91] In that email the appellant indicated that she had become aware in the previous 24 hours that the ANZ were required to apply for leave to take a step in the proceedings, and referred to ANZ Banking Group Limited v Lawson.[92] She explained that it was Lawson that had alerted her to what the ANZ was supposed to do. She foreshadowed an application to the Court of Appeal “for all decisions made on 4 February 2022, 7 February 2022 and 24 February 2022 to be set aside”.
[91]AB 1992.
[92][2022] QDC 41.
On 15 March 2022, the solicitors for the ANZ emailed the appellant advising that they declined to agree to an adjournment of the hearing listed on 18 March 2022, and attached submissions and a supporting affidavit “that our client intends to rely on at the hearing on 18 March 2022”.[93]
[93]AB 1991.
The sealed copy of the affidavit was emailed later on 15 March 2022.[94] Under an order made by the learned primary judge on 2 March 2022, the appellant’s submissions for the hearing on 18 March 2022 were to be filed and served by 17 March 2022.[95] On 16 March 2022 the appellant sought an extension, but that was refused. The learned primary judge also declined a request for information which had been made on 16 March 2022, by the appellant in these terms:[96]
“Could Her Honour please provide me with the law that she believes permits Her Honour to proceed on Friday when no application pursuant to r 389(2) was made to the Court prior to the substantive judgment being handed down on 24 February 2022 and to the other judgments made on 4 February 2022 and 7 February 2022.”
[94]AB 1991.
[95]AB 1989.
[96]AB 1988.
It is in that context that the matter came before the learned primary judge on 18 March 2022. That sequence of correspondence provides an important context in which the various events on 18 March must be seen.
In our view, the suggestion that, in the circumstances, the learned primary judge did not provide the appellant adequate time to respond to submissions and applications on the morning of 18 March 2022, must be rejected. There are several reasons for that conclusion.
First, the appellant became aware of the issue concerning r 389(2) on 6 March 2022, twelve days prior to the hearing of the application. By 7 March the appellant was able to articulate the requirement for leave and seek support from Lawson. In fact, the appellant said it was that decision which had alerted her to the need to apply to leave.[97] By 15 March the appellant was able to develop an argument concerning the application of rule 389(2), supported by case law, that contended the consent adjournments were not steps in the proceeding. By 16 March (a Wednesday) the appellant was able to email the learned primary judge’s associate alerting to the issue that no application under r 389(2) had been made.
[97]AB 1992.
Plainly, the appellant was in a position before 18 March 2022 to respond to the application made by the ANZ, which she received on 15 March 2022.
Secondly, what was advanced on 18 March 2022 by counsel for the ANZ was the application and submissions which she had already received several days before. Thus, the proposition that the consent adjournments qualified as steps in the proceedings was not new to her on 18 March 2022, nor was the prospect of an application under r 371. The learned primary judge was also conscious of the fact that the issues had first been raised by the appellant.[98]
[98]AB 55, lines 30-32.
Thirdly, the appellant was in a position to advance written submissions on 18 March 2022, they being dated the previous day.[99] That included detailed submissions about the impact of not having leave pursuant to r 389(2), and by reference to authority.
[99]AB 250.
Fourthly, on 18 March 2022 the learned primary judge held that the 12 consent adjournments, but in particular the final adjournment subject to the order by Jackson J, were steps within the meaning of r 389(1), with the result that r 389(2) did not apply.[100] Thus, the question of whether leave should be granted nunc pro tunc did not arise, nor did the question of the application of r 371. The application that invoked both of those sections was resolved on a basis that had been foreshadowed days prior to that hearing, with the appellant contending that leave was required, and the ANZ contending it was not because the consent adjournments were steps in the proceedings.
[100]AB 145, lines 20-23.

In that respect, the resolution of this issue is of doubtful utility. At best it can only affect the order that steps in the proceedings between 15 September 2021 and 7 February 2022 were effectual, and the orders for costs. It can have no impact upon the fact that the statutory demand has been, by order of the court, set aside.
Further, for the reasons which we have developed earlier, as a matter of law the learned primary judge’s conclusion that the consent adjournments were a step in the proceedings was correct. Given that the decision in that respect was legally correct, we doubt that any question of apprehended bias could result in that order being set aside.
Nonetheless, the appellant is a self-represented litigant and has raised the issue specifically, and we will therefore deal with it.
The essential facts
The essential facts concerning the event at which the learned primary judge was invitee, appear from the affidavits of Ms Pacey and Ms Bryce.[155]
[155]Addendum record book, pages 22 and 78.
Ms Pacey only commenced as a partner of Herbert Smith Freehills (HSF) on 7 February 2022. Thus, she only joined HSF on the day on which the main hearing occurred before the learned primary judge. Ms Pacey practises in environment and planning law.
The UQ Women in Law is an annual event organised by the UQ Law School. The aim is to provide guidance to women who aspire to senior roles in the legal profession. From 2016 to 2021 the event had been held at the offices of Clayton Utz. It was held on 4 May 2022 at the office of HSF.
Ms Pacey’s involvement with the event commenced in 2017 and thereafter she had the role of master of ceremonies.
Contact between the University of Queensland in relation to the event, with Ms Pacey, occurred soon after she became a partner on 7 February 2022. The work making arrangements was carried out by a client services team at HSF, that being a non-legal team.
On 14 March 2022 Ms Pacey received an email from the UQ organiser, in which he indicated that he had received a recommendation to reach out to “Justice Williams to represent the judiciary”. Ms Pacey deposed that that was the first time she was made aware that Justice Williams might be on the panel. She did not make that recommendation and had no involvement in it.
As at 14 March 2022, Ms Pacey was unaware whether Justice Williams had been invited to attend.
On 15 March 2022, Ms Pacey emailed the female partners at HSF, seeking a volunteer to join the panel for the event. Ms Bryce agreed to do so.
Ms Bryce was the only person that Ms Pacey arranged to sit on the panel. The remainder of the panellists were invited by the UQ organiser. Ms Pacey did not invite any of the other panellists.
On 12 April 2022, Ms Pacey received an email from the UQ organiser, confirming that one of the panellist was Justice Williams. That was the first time that Ms Pacey was aware that her Honour had been confirmed as a panellist.
At the event on 4 May 2022, other than hosting the panel discussion, Ms Pacey spoke with her Honour briefly before the commencement of the panel discussion, regarding the discussion topics, and subsequently to thank her Honour for her involvement. Ms Pacey did not discuss any HSF matters with her Honour.
Prior to 17 June 2022, Ms Pacey was not aware that HSF was acting for the ANZ or that the learned presiding judge had presided over any proceedings to which the ANZ was a party, or in which HSF was involved. Prior to 17 June 2022 Ms Pacey had never heard of the appellant.
Ms Bryce deposed that she was employed by HSF in 2001 and became a partner in 2014. She practises in corporate and commercial law.
On 4 May 2022 she attended the UQ Women in Law event as a panellist. On 15 March 2022 she had received an email seeking a volunteer to join the panel and noting that one of the potential panellist was Justice Williams.
On 12 April 2022, after she agreed to join the panel, she received an email from the UQ organiser noting that Justice Williams was a panellist. That was the first time she had become aware that her Honour had been confirmed as a panel member.
Ms Bryce’s role as a panel member included speaking about her career in the legal profession and answering questions from Ms Pacey.
Prior to 4 May 2022, Ms Bryce had never met Justice Williams, or worked at the same firm at the same time as her Honour.
At the event on 4 May 2022, Ms Bryce spoke with her Honour briefly, including general small talk and about the topic to be discussed by the panel. She did not discuss any HSF matters, including any matters that may have been before the courts or before her Honour in particular.
Prior to 17 June 2022 Ms Bryce was not aware that HSF was acting for the ANZ in any proceedings, or that Justice Williams had presided over any proceedings to which the ANZ was a party, or in which HSF was involved. Prior to 17 June 2022, Ms Bryce had never heard of the appellant.
Some additional facts appear from the promotional page for the event. They are that the learned primary judge, while a solicitor, never worked at HSF. Further, Ms Pacey was a partner working in the environment, planning and communities’ team, specialising in approvals and delivery for major infrastructure projects, environment incident management and other environmental issues.[156] Ms Bryce was a partner working in corporate and merges and acquisitions, with particular expertise in healthcare, aged care and advisory and transactional work for government clients.[157]
[156]Addendum record book page 52.
[157]Addendum record book page 54.
Consideration
In our view, it is nonsensical to suggest that those circumstances surrounding the UQ Women in Law event would meet the test for apprehended bias. The following matters are pertinent to that conclusion:
(a)neither of the HSF partners involved in organising the event (one as master of ceremonies and the other as a panellist) was aware of the appellant’s litigation or that her Honour was involved in it;
(b)neither of the HSF partners worked in areas of the firm which had any connection to the litigation; Ms Pacey worked in environment and planning law, and Ms Bryce in corporate and mergers and acquisitions;
(c)the selection of her Honour as a panellist was not made by anyone as HSF, but rather the organiser from UQ;
(d)the other panellists included a practising QC and an associate professor from the UQ School of Law;
(e)none of the topics at the event involved discussion of litigation either generally or in particular, but rather reflections on each persons’ career as a woman in law;
(f)the event was plainly attended by a substantial number of other people, as it was a public forum; the areas being considered for the event were capable of holding up to 100 people;
(g)drinks and canapes were provided for everyone, not as some special gift to her Honour; and
(h)whilst the client services team were prepared to organise matters with respect to car parking for her Honour, given that the event was held from 5.00 pm on a Wednesday, and given that HSF has their office in the city, we would infer that her Honour walked to the event.
Given the public nature of the event, its size, the fact that her Honour was one of a number of panellists, and none of the HSF partners involved had any connection with the litigation, the prospect that a fair-minded lay observer would have apprehension about her Honour’s capacity to bring an impartial and unprejudiced mind to the issues, is more a romancing one then one grounded in reality.
The appellant contends that the High Court decision in Charisteas v Charisteas[158] is on point with this matter. That proposition is easily dispelled. In Charisteas the contact was between the judge hearing a matter and a barrister appearing in that matter. Whilst the decision was reserved, the judge and the barrister met for a drink or coffee on four occasions, spoke together on five occasions by telephone, and exchanged numerous text messages. None of that contact was in the public domain. None of that conduct was known to anyone but the judge and the barrister. Charisteas could not be more remote from the facts in the present case.
[158][2021] HCA 29; (2021) 273 CLR 289.
In Charisteas the High Court did not depart from the well-established applicable principles. The court summarised in this way:[159]
“11Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute. The apprehension of bias principle is that ‘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 principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, ‘it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits’; and, secondly, there must be articulated a ‘logical connection’ between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.”
[159]Charisteas at [11]. Footnotes omitted.
The present case fails at both steps. One struggles to understand how the circumstances surrounding the UQ Women in Law event contains anything that can be identified as leading the judge to decide a case otherwise than on its merits. The judge was asked to speak at a public event, as part of a multi-person panel, on issues completely unrelated to the litigation. The judge received no private accommodation that was not available to others. Secondly, there is no “logical connection” between what occurred and any feared departure from her Honour deciding the case on its merits.
This aspect of the appellant’s case lacks merit.
New issues on the appeal

In the appellant’s written outline filed 18 September 2023, the appellant has raised a number of matters in paragraphs 11-14, which are raised for the first time. In essence they are:
(a)whether the learned primary judge erred in the application of public policy where, on the evidence the ANZ was involved in illegality;
(b)whether the learned primary judge erred in not providing the appellant protection against that illegality;
(c)whether there was an error in making orders in the ANZ’s favour where the cause of action is based on a statutory prohibition and against public policy; and
(d)whether the evidence is capable of establishing that public policy does apply.
The ANZ contend that those arguments should not be permitted for two reasons. The first is that the arguments are irrelevant to the narrow statutory question of whether there exists a genuine dispute about the debt underlying the statutory demand.[160] The second is that had the arguments been raised below, the ANZ could have provided responsive evidence.[161]
[160]In this regard reliance is place on Ligon 158 Pty Ltd v Huber (2016) 117 ACSR 495; [2016] NSWCA 330 at [12]-[13].
[161]In this regard reliance was placed on Nine Network Australia Pty Ltd v Wagner (2020) 6 QR 64 at [72]-[73].
The matters raised in paragraphs 11 to 14 of the outline are reflected in proposed amended grounds, in the proposed second amended notice of appeal, namely grounds 2(a)-(d), (y) and (z).[162]
[162]The proposed second amended notice of appeal is attached to the application dated 26 July 2022, to adduce evidence.
In our respectful view, the application to amend and to raise those points should be refused. There are two reasons for that.
First, as is evident from submissions made by the appellant below and in some of her affidavit material, she contends that the ANZ was obliged to remediate any loss or damage caused to her, and that their failure to do so is contrary to law. However, the statutory demand is based upon something completely different. It contends that there were two specific agreements made on specific dates, for the payment of specific amounts. The foundation of the statutory demand has nothing to do with any suggested illegality or public policy. Agitation of those questions is a matter for a trial and is irrelevant to the issue as to whether there is a genuine dispute about the debt which is the subject of a statutory demand.
Secondly, it is probable that the ANZ could provide responsive evidence when the allegations are that acts carried out by it were contrary to law or public policy. That the ANZ did not do so for the purposes of the hearing before the learned primary judge is entirely consistent with the fact that the issues concerning the statutory demand were narrow, as we have explained.
Leave to amend to raise those grounds should be refused.
Calculation of the $1,780,378

In the appellant’s amended reply, filed 4 December 2023, submissions are made by the appellant in support of an application to adduce new evidence. The evidence is contained in an affidavit sworn by the appellant on 30 November 2023. Relevantly the appellant exhibits an email dated 13 May 2019 that was sent to the ANZ. In various ways the appellant seeks to make the point that counsel for the ANZ was wrong to say to the learned primary judge that they could not work out how the $1,780,378 figure in the statutory demand had been calculated. In addition, the appellant contends that the figure in the email has some relevance in the event that this court is of a mind to vary the statutory demand.
There are considerable difficulties confronting the acceptance of the evidence in the email of 13 May 2019, and with accepting the proposition advanced by the appellant in her amended reply, i.e. that the email explains how the figure in the statutory demand was calculated.
First, self-evidently the email postdates the agreement alleged in the statutory demand, which was said to have been made on 12 October 2018. It is true to say that conduct subsequent to an alleged agreement can be relevant to ascertaining whether an agreement was made or not. However, the email is principally concerned with the appellant’s “counteroffer”. The mere mention of that, and the articulation of the counteroffer later in the email, strongly suggests that there had been no previous agreement reached.
Secondly, the email makes plain that there has been no settlement between the ANZ and Tremco. True it is that the email states “since February 2018 ANZ have agreed to pay Tremco”, but reading further makes it plain that no settlement had been reached, as the amount had not been agreed.
Thirdly, referring to the ANZ’s offer, the email states that “the current offer on the table does not provide a settlement that we are able to accept”. It goes on to state that “… negotiations for a settlement have been ongoing since December 2017 and each time we believe that an agreement has been reached ANZ never settle on those terms”. Those statements point plainly to a conclusion that there has been no agreement.
Fourthly, the email sets out what is describe as “History of settlement negotiations to date”. The starting point was the “compensation that was submitted to ANZ in December 2017”, in the amount of $6,500,487. Then the email says that at a meeting on or about 22 March 2018, the ANZ “asked us to consider submitting a counteroffer for a reduced amount”. In addition, it asserts that it was agreed at 22 March 2018 that the ANZ would pay Tremco, PWA and Thomsons Lawyers, but that “we should proceed on the basis that these would be negotiated settlements”. Those statements tend to the conclusion that there was no figure agreed on 22 March 2018, as the statutory demand suggests.
Fifthly, the email then says that a counteroffer was made in March 2018, at a reduced figure of 35 per cent of the actual loss and damage. The email then relates that the counteroffer was rejected by ANZ. It goes on to state that the ANZ had advised that “it believes that Tremco and ANZ can reach a commercial settlement”, and that “ANZ needs to settle with both Tremco and PWA”. Those statements are inconsistent with any agreed sum having been reached. It states that “the current offer on the table excludes any compensation for us”.[163] It also states that “ANZ are now refusing to negotiate a settlement with PWA and Thomsons Lawyers going back on their agreement in early 2018 that they would negotiate a settlement with them”. Those statements also point plainly to the absence of any concluded agreement on 22 March 2018, let alone in the figure stipulated in the statutory demand.
[163]“Us” is a reference to the appellant and her husband.
Sixthly, the email then proposes a counteroffer made expressly on the basis that no agreement has yet been reached with Tremco, PWA or Thomsons Lawyers.[164] The email then states:
[164]Paragraph (e) on page 5.
“e.The amount we have allowed for this is:-
i.Tremco   $600,000 (including the appeal
and judgment);
ii.PWA  $50,000;
iii.Thomsons Lawyers      $15,000;
iv.Total to pay these three credits is $665,000.”
The email makes the point that the ANZ may be able to negotiate with Tremco, PWA and Thomsons Lawyers to achieve a lower sum. The email then, in paragraphs (g), (h) and (i) on page 5 states:
“g.As a starting point to determine a fair and reasonable amount of settlement, that is mutually beneficially to both ANZ and us, and commercial and pragmatic, we have used the reduced amount of compensation in our letter dated 22 March 2018 as the starting point namely $4,225, 756.00.
h.We have made allowance for ANZ paying the three creditors in the sum of $665,000, and deducted $665,000 from the sum of $4,225,756.00. The total amount of compensation after deducting this is $3,560,756.
i.We believe that a fair and equitable commercial and pragmatic settlement would be for this to be split 50/50 between ANZ and us. This would mean that the compensation/cash payment to us would be $1,780,378. From this amount $890,189 would be payable to Wayne and $890,189 would be payable to Carolyn.”
There are several points that then become evident from the consideration of the counteroffer as framed in the email of 13 May 2019. They are:
(a)the counteroffer is being made because no final agreement has been made with any of Tremco, PWA, Thomsons Lawyers or the appellant;
(b)the figures for Tremco, PWA and Thomsons Lawyers, totalling $665,000, is what the appellant allowed for, for the purposes of the counteroffer; there is no suggestion that those figures have been agreed;
(c)that is then deducted from the amount of $4,225,756, which was a figure used in a counteroffer in March 2018, and itself a reduction by 35 per cent of what had previously been claimed;
(d)it is only by splitting the result of that deduction, namely $3,560,756, on a 50/50 basis that the figure of $1,780,378 is reached; and
(e)in the absence of any document recording figure $1,780,378 prior to that time, the inference might be drawn that the occasion of the email of 13 May 2019 was the first time it had been thus calculated; that is potentially evidence destructive of the proposition that the figure had been agreed on 12 October 2018, as the statutory demand says.
Seventhly, that the ANZ knew how the figure was calculated for the purposes of an offer in May 2019, does not shed any light on how it is said that the same figure was calculated as at October 2018. What counsel for the ANZ said in the hearing was with reference to the figure stated in the statutory demand, namely that figure agreed as at 12 October 2018.

Eighthly, on page 13 of the email, in paragraphs 41 and 42, the appellant recites what occurred on 12 October 2018:
“41.On 12 October 2018 at a meeting in Parliament House in Canberra Shayne Elliott said no compensation would be paid but he could arrange a cash payment to Wayne and I. …
42.At that meeting it was agreed that a consultant would be engaged at ANZ’s costs to bring all parties to the settlement table to negotiate a final settlement. … This included all parties to the Tremco proceedings and that Shayne would be able to organise a cash payment for Wayne and I as part of this settlement. …”
That account, if true, is potentially destructive of a conclusion that there was an agreement reached on 12 October 2018 in the sum of $1,783,78 which, according to the statutory demand, was to be paid only to the appellant, and not the appellant and her husband.
The appellant and ANZ both had copies of that email in their possession at the time of the hearing before the learned primary judge. It could have been produced in evidence, but as it concerned the counteroffer made in May 2019, one can understand why it was not. It adds nothing substantive to the issues to be determined on an application to set aside the statutory demand. It is simply more evidence that raises a genuine doubt as to the basis of the debts alleged in the statutory demand. In that sense, it adds nothing. Further, it does not reveal how the figure claimed in the statutory demand was calculated at that time, nor does it prove the falsity of anything said by counsel for the ANZ.
We would refuse leave to adduce the evidence.
Application to adduce further material
By email dated 28 January 2024, to the Registry, the appellant seeks to put fresh evidence before the court in relation to the two appeals. The email raises the following matters:
(a)Allegations of impropriety in relation to Tremco’s involvement in the sale of property under a write of execution; the essence of the argument is that the improprieties effect the amount recovered and the amount paid to the ANZ;
(b)an alleged misstatement of fact made by Morrison JA in the decision Thomson v Tremco Pty Ltd;[165] and
(c)that the Tremco issue was put before the Court of Appeal in November 2022 and that court “accepted that this was in the past and they would give equal weight to my evidence in the current appeals”.
[165][2019] QCA 18 at [90].
As to the first matter, questions relating to the sale of land by Tremco under a writ of execution have nothing whatsoever to do with the issue in the present appeals, which relates to whether there was genuine doubt about the debts alleged in a statutory demand, sufficient to warrant it being set aside. As dealt with earlier in these reasons, the statutory demand alleges a particular agreement on a particular date, a component of which was a specific amount to be paid to Tremco. Relevant to the appeals is the evidence relating to the alleged agreement on that day and the specific amount to Tremco. Actions concerning the sale of land under other processes are irrelevant.
The second matter alleges that there was an error of fact in the judgment of Morrison JA in Thomson v Tremco. There was no mistake of fact. In paragraph [90] of that decision, the impugned passage was not a finding a fact, but merely a recitation of the appellant’s own submissions in that appeal. The footnote to paragraph [90] directed attention to paragraph 19(f) of the appellant’s submissions in that appeal.
The third matter concerns something attributed to this court when it was hearing the appeal which resulted in the decision in Thomson v Australia and New Zealand Banking Group.[166] What the appellant says is that arguments derived from the supposed mistake of fact in paragraph [90] of the decision of Morrison JA “was put before the Court of Appeal in November 2022 … where the Court of Appeal accepted that this was in the past and they would give equal weight to my evidence in the current appeals”.[167] She urges that because of the mistake of fact she has lost property, and that:[168]
“44.If the Court of Appeal are serious that my evidence is now to be given equal weight then is needs to determine what amounts are the correct amounts to be varied for Tremco (if any under the confidential settlement agreement) and the consequences of Morrison J’s (sic) error of fact …”.
[166][2022] QCA 226.
[167]Paragraph 41 of the appellant’s email.
[168]Appellant’s email, paragraph 44.
As pointed out above that was no error of fact and the evidence creates genuine doubt about the amount said to be part of the debt for Tremco in the statutory demand. Consequentially, even if this court had said what is attributed to it, it would make no difference.
We have read the reasons given by the court in Thomson v Australia and New Zealand Banking Group[169] and the transcript of the hearing when that application was argued. Nothing in the reasons or the transcript supports the proposition articulated in paragraph 41 of the email namely:
“This was put before the Court of Appeal in November 2022 in my application for the appointment of a Contradictor, where the Court of Appeal accepted that this was in the past and they would give equal weight to my evidence in the current appeals.”
[169][2022] QCA 226.
It is true to say that in the course of the hearing the difficulties a self-represented litigant were the subject of comment, and it is equally true to say that the appellant expressed her dissatisfaction, based on her own experience, that arguments by self-represented litigants did not seem to be given the same weight as represented litigants.[170] But nothing said by this Court warrants the assertion in paragraph 41. What the Court did comment upon was their understanding and acceptance of the fact that self-represented litigants can find the tasks of advocating their case to be difficult, more so than legally represented litigants. What the Court emphasised was that appeals were decided upon the evidence before the primary judge, the Court was well aware of the difficulties confronted by self-represented litigants, the rules relating to the making of fraud allegations applied equally to self-represented litigants as to anyone else, and the courts ensure that self-represented litigants get a fair hearing. But nothing said takes it as far as the appellant would have it.
[170]Transcript 15 November 2022, T1-7 lines 29-41, T1-17 lines 1-5, T1-22 line 10, T1-23 lines 15-25 and T1-23 lines 45-47.
The extra points raised by the appellant do not advance her case.
Conclusion

As we have explained in the reasons above, the appellant’s challenge to the decisions of the learned primary judge has failed. The appeals should be dismissed, with costs.
The orders are:
1.Leave granted to amend the notice of appeal except in respect of proposed grounds 2m, 2n, 2s(a)-(d), 2v, 2y and 2z.
2.Applications to adduce evidence refused.
3.The appeal in CA3513 of 2022 is dismissed with costs.
4.The appeal in CA4341 of 2022 is dismissed with costs.

CITATION:	Thomson v Australia and New Zealand Banking Group Limited [2024] QCA 73
PARTIES:	CAROLYN MARY THOMSON (appellant) v AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522 (respondent)
FILE NO/S:	Appeal No 3513 of 2022 Appeal No 4341 of 2022 SC No 8958 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeals
ORIGINATING COURT:	Supreme Court at Brisbane – [2022] QSC 18 (Williams J); Unreported, 18 March 2022 (Williams J)
DELIVERED ON:	7 May 2024
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Mullins P and Morrison and Bond JJA
ORDERS:	1. Leave granted to amend the notice of appeal except in respect of proposed grounds 2m, 2n, 2s(a)-(d), 2v, 2y and 2z. 2. Applications to adduce evidence refused. 3. The appeal in CA3513 of 2022 is dismissed with costs. 4. The appeal in CA4341 of 2022 is dismissed with costs.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – OTHER MATTERS – OTHER CASES – where the appellant served a statutory demand on the respondent for an alleged debt of $2,832,378 on 1 August 2019 – where the primary judge set aside the primary demand, pursuant to s 459H of the Corporations Act 2001 (Cth), on the basis that there was a genuine dispute – where the primary judge also made an order as to costs – where an application was made by the ANZ under r 371(2) and r 389(2) of the Uniform Civil Procedure Rules 1999 – where the appellant challenges both decisions of the primary judge – where the appeals had multiple grounds of appeal including that the primary judge should be disqualified due to apprehended bias, that the primary judge erred in her Honour’s findings and that the appellant was denied natural justice – whether the appeals should be allowed Corporations Act 2001 (Cth), s 459G, s 459H, s 459J(1)(b) Uniform Civil Procedure Rules 1999 (Qld), r 5, r 30, r 371(2), r 389(1), r 389(2) Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2013] 2 Qd R 202; [2012] QCA 272, considered Australian Communication Exchange Ltd v Pilot Partners P/L [2017] QSC 176, considered Chambers v Brice [2013] QSC 232, considered Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29, considered Ligon 158 Pty Ltd v Huber (2016) 117 ACSR 495; [2016] NSWCA 330, considered MNWA Pty Ltd v Deputy Commissioner of Taxation (2016) 250 FCR 381; [2016] FCAFC 154, considered Nine Network Australia Pty Ltd v Wagner (2020) 6 QR 64; [2020] QCA 221, considered Re Syncordia Group Operations Pty Ltd [2021] VSC 732, applied SGR Pastoral Pty Ltd v Christensen [2019] QSC 229, considered Superior IP International Pty Ltd v Ahearn Fox Patent and Trademark Attorneys [2012] FCA 282, considered
COUNSEL:	The appellant appeared on her own behalf E J Goodwin KC for the respondent
SOLICITORS:	The appellant appeared on her own behalf Herbert Smith Freehills for the respondent