Woolley v Vok (No.4) - [2011] FMCA 1055

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WOOLLEY v VOK (No.4)

[2011] FMCA 1055

BANKRUPTCY – Whether apprehension of bias.

British American Tobacco Australia Services Limited v Laurie and Others (2011) 242 CLR 283; [2011] HCA 2
Dye v Commonwealth Securities Limited (No.4) [2010] FCA 910
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Johnson v Johnson (2001) 201 CLR 488; [2000] HCA 48
Livesey v The New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17
Makhoul v Barnes (1995) 60 FCR 572
Woolley v Vok (No.2) [2011] FMCA 1053

Applicant:

GREGORY WOOLLEY

Respondent:

PETER VOK

File Number:

SYG 658 of 2011

Judgment of:

Barnes FM

Hearing date:

7 December 2011

Delivered at:

Sydney

Delivered on:

7 December 2011

REPRESENTATION

Counsel for the Applicant:

Mr J Hynes

Solicitors for the Applicant:

Henry Davis York

Respondent:

In person

ORDERS

The application for an adjournment is refused.
The application that I recuse myself from hearing this matter be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 658 of 2011

GREGORY WOOLLEY

Applicant

And

PETER VOK

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application that I disqualify myself from further hearing a creditor’s petition on the grounds that I am biased. I take this to be an allegation of actual bias although, as Mr Vok is self represented, I have also given consideration to whether apprehended bias from the perspective of the reasonable, appropriately informed lay observer would be apparent (see Livesey v The New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17; Johnson v Johnson (2001) 201 CLR 488; [2000] HCA 48; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, Dye v Commonwealth Securities Limited (No 4) [2010] FCA 910 and British American Tobacco Australia Services Limited v Laurie and Others (2011) 242 CLR 283; [2011] HCA 2).
The matter is part-heard. However it appears that this application relies in essence on the fact that I did not grant an adjournment of the hearing of the creditor’s petition at the start of the hearing but proceeded with the hearing after dealing with the creditor’s application to set aside a subpoena issued by Mr Vok, and a subsequent oral application by Mr Vok to issue a subpoena to give evidence. Those decisions were made in circumstances where the matter was last before the court on 1 December 2011 when Mr Vok exercised liberty to apply in relation to the hearing date of 7 December 2011 for the hearing of creditor’s petition and the application in a case to set aside the subpoena. Mr Vok unsuccessfully sought an adjournment of the creditor’s petition.
I note as part of the background to this application that the creditor’s petition was presented on 7 April 2011. It was listed for hearing by me pursuant to directions made on 11 October 2011 (and 21 October 2011). On 1 December 2011 I considered and refused Mr Vok’s application for an adjournment of the hearing of the creditor’s petition, but ordered that Mr Vok have a further opportunity to file and serve affidavits in relation to the application in a case and in relation to the creditor’s petition if he wished to put on any further evidence in that respect, notwithstanding that his notice of opposition and supporting affidavits were filed in these proceedings in September 2011 and previous orders had been made for the filing of evidence.
I also confirmed that the application to set aside the subpoena would be heard at 10.15 am on 7 December 2011 and advised the parties that if the application to set aside the subpoena was successful then I would proceed with the hearing of the creditor’s petition on 7 December 2011. The application to set aside the subpoena was heard this morning. It was successful.
At that point Mr Vok sought a further adjournment on the basis that for the preceding few days his time had been taken up entirely with preparation for the application to set aside the subpoena and that he had not been able to prepare for the hearing of the creditor’s petition. I had regard to the fact that the creditor’s petition was presented on 7 April 2011 and the notice of opposition was filed on 26 September 2011 with supporting affidavits and to the opportunities that Mr Vok had had since that time to file further evidence. I was not persuaded that it was in the interests of the administration of justice or of the parties that there be a further adjournment (see Woolley v Vok (No.2) [2011] FMCA 1053).
Mr Vok then sought leave to issue a subpoena requiring Mr Henry (the person to whom the subpoena that had been set aside had been issued) to attend personally at the hearing. He was not granted such leave. I indicated that even if evidence from Mr Henry may be relevant if the court decided to go behind the judgment that formed the basis for the bankruptcy notice (in other than a fishing expedition), it seemed to me that in this case it was appropriate that the issue of whether to go behind the judgment be dealt with as a two-stage process and that the court would consider first whether it had been established that it was appropriate to go behind the judgment (Makhoul v Barnes (1995) 60 FCR 572).
The hearing of the creditor’s petition commenced over Mr Vok’s objection. He reiterated that he was not ready to proceed. I indicated to him that if fresh matters came up in the hearing, he would have the opportunity to deal with these in post-hearing submissions and that I would reserve my judgment.
A couple of issues did come up at the hearing, albeit these were not matters raised by Mr Vok, but by me. They related to the time of the act of bankruptcy and to service of the creditor’s petition. I again foreshadowed to Mr Vok that he would have the opportunity to file post-hearing submissions.
After the lunch adjournment Mr Vok renewed his application for an adjournment, without adding any fresh basis for the application which was again based on his lack of preparation. That application is refused for the same reasons given previously.
He has now asked me to disqualify myself on the basis that I am biased, presumably on the basis of conduct, in particular the rulings that I have made in this matter. The interlocutory matters ruled on in these proceedings, including the adjournment applications, did not involve judgment on issues to be determined on the hearing of the creditor’s petition. Mr Vok’s disagreement with the rulings in relation to adjournments and otherwise is not such as to satisfy me that this is a case in which I should recuse myself from hearing further this matter. I have borne in mind that the test for apprehended bias is objective, viewed from the perspective of the hypothetical reasonable observer having regard to the fact that the person observed is a judicial officer (see Dye v Commonwealth Securities Limited (No 4) at [15] – [16] and the cases cited therein).
The creditor’s petition in this case has been on foot for some considerable time. The respondent has had ample time to prepare for the hearing. I have not in any way predetermined the issues. Indeed, I have raised issues of some possible significance which I have indicated I intend to give the parties the opportunity to address after the hearing.
I am not persuaded that a reasonable, appropriately informed lay observer understanding the processes and procedures of the court and the nature of these proceedings would be of the view that the rulings in relation to adjournments or subpoenas or any other matters are such as to give rise to a reasonable apprehension of a lack of impartiality in relation to the resolution of this matter. As I indicated, the issue of going behind the judgment is to be dealt with as a two-stage process. Hence if I were to determine that it was appropriate to go behind the judgment, Mr Vok would have the opportunity on a later date to put on further evidence.
It must be said that it does appear that Mr Vok is endeavouring to achieve a postponement of the hearing. While I have reached the view that the hearing should not be adjourned, my reasons in that respect do not involve prejudgment of the substantive issues. Nor, considered from the perspective of the appropriately informed lay observer, are they in any way indicative of predetermination in relation to the substance of the creditor’s petition.
Insofar as Mr Vok suggests that he has been denied procedural fairness, I am conscious of the fact, that as he has reminded the court, he is self-represented. I am particularly conscious of the need to ensure that matters do not take him by surprise. As indicated, I had previously (before this application for disqualification was made) indicated to him that I would be reserving my judgment and that he would have the opportunity to make post-hearing written submissions.
In all the circumstances, I am not persuaded that there is anything in the material before the court or the conduct of the hearing to support an allegation of actual or apprehended bias. I do not propose to recuse myself from hearing this matter further.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date: 23 March 2012