The appeal
32 Five grounds of appeal are pleaded. They read (without alteration):
1. The trial judge erred in finding that it is not possible to conclude that the Judicial Review Proceedings and, if successful, the applications that will or may follow, will lead to a setting aside or variation of the Costs Judgment such that Bankruptcy Notice No.248915 issued on 19 March 2020 should be set aside.
2. The trial judge erred in failing to extend the time for compliance with Bankruptcy Notice No. 248915 issued on 19 March 2020 in circumstances where the Appellant has commenced proceedings to set aside the judgment in respect of which Bankruptcy Notice No. 248915 issued on 19 March 2020 was issued.
3. That the trial judge erred in finding that the issuing of Bankruptcy Notice No. 248915 issued on 19 March 2020 is not an abuse of process on the basis that it was issued for an ulterior purpose in that the Respondent failed to take proper steps to have the Costs Judgment paid or to have the Appellant enter into an arrangement to pay the debt prior to its issue.
4. That the trial judge erred in failing to draw an inference, or in failing to find, that the Respondent failed to take reasonable steps to enforce the Costs Judgment such that by failing to take reasonable steps to enforce the Costs Judgment, the Respondent's issuance of Bankruptcy Notice No. 248915 issued on 19 March 2020 was an abuse of process.
5. The trial judge erred in failing to find that Bankruptcy Notice No. 248915 issued on 19 March 2020 was issued for an improper purpose or ulterior motive such that it is an abuse of process.
33 When this matter first came before the Court, Kells sought leave to adduce further evidence on the appeal concerning the fate of the Local Court and Judicial Review Proceedings. The application was not opposed. Kells filed an affidavit from Mr Quintiliani sworn on 2 June 2021.
34 Leave is granted to adduce the further evidence.
35 Mr Alhalek's submissions did not directly address any of the grounds of appeal.
36 He asked that the orders of the primary judge be set aside "on the basis of [j]udicial favouritism and impartiality (presumably partiality)". Both his original submissions and his submissions in reply are largely in the nature of abuse. They are replete with personal invective, mostly directed at Mr Quintiliani. Mr Alhalek effectively conceded that the respondents' actions "may well [have] been legal". In reply he described his submissions as "precarious" from a legal standpoint. Nevertheless, he argued that the respondents were "morally and ethically repugnant" and called upon the Court "to ensure that the fabric of law and society are correctly guided and such acts are discouraged".
37 Mr Alhalek complained that the primary judge put excessive weight "on the scant means by which Kells sought to enforce the debt, particularly in relations to the liquidation of MLG's". He claimed that he was "a mere contractor" and there was no evidence to show that he was a company officer or shareholder or, indeed, that he had anything to do with the company's operations. Nor, he wrote, was there any evidence that Kells had sent any of "the purported documents".
38 Finally, Mr Alhalek complained that, contrary to the primary judge's findings, his Judicial Review Proceeding was "both meritorious and well formulated" and she was not entitled to "pass judgment" on them.
39 Mr Alhalek argued that "collateral matters were … allowed to cloud the decision of this judgement, to the benefit of the respondent[s]" and rewarded their "repugnant" conduct. He exhorted the Court to set aside the judgment "for the betterment of the law, to reinforce the ethics and code[s] of conduct amongst its practitioners, and to encourage honourable conduct within society". The "collateral matters" were not identified.
40 There is no merit in any of Mr Alhalek's complaints or arguments. We are not satisfied that the primary judge erred in any of the findings challenged in the notice of appeal.
41 The allegation of "judicial favouritism" or "partiality [scil.]" is outside the scope of the notice of appeal. In any case, it is baseless. We take the allegation to be an accusation that her Honour was biased in favour of Kells. In Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [183] Hayne J explained that:
"Bias" is used to indicate some preponderating disposition or tendency, a "propensity; predisposition towards; predilection; prejudice". It may be occasioned by interest in the outcome, by affection or enmity, or, as was said to be the case here, by prejudgment. Whatever its cause, the result that is asserted or feared is a deviation from the true course of decision-making, for bias is "anything which turns a man to a particular course, or gives the direction to his measures".
42 An allegation of actual bias must be "distinctly made and clearly proved": Jia at [69] (Gleeson CJ and Gummow J). Mr Alhalek has done neither of these things. Apprehended or imputed bias only requires proof that in all the circumstances a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions in dispute: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ). To establish apprehended bias, however, a litigant must first identify what might have led the judge to decide the case otherwise than on its merits and then articulate "the logical connection between that matter and the feared deviation from the course of deciding the case on its merits": Ebner at [8]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [63]. It is impermissible to reason backwards from what was decided at trial and the manner in which it was decided to the conclusion that it might reasonably be apprehended that the judge might not have brought an impartial mind to the resolution of the issues: Michael Wilson & Partners at [73]. Yet that is all Mr Alhalek sought to do.
43 The other allegations should also be dismissed.
44 First, the appeal is not the appropriate vehicle to ventilate complaints of professional misconduct or unsatisfactory professional conduct. An appeal is for the correction of error on the part of the primary judge. Unless an appellant can satisfy the appeals court that the opinions and conclusions of the primary judge were wrong or affected by error, the appeal must be dismissed: see, for example, Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [30] (Allsop J, Drummond and Mansfield JJ agreeing).
45 Second, the evidence did not establish that there was an abuse of process.
46 In Young v Cooke [2017] FCA 26 Gleeson J observed:
104 If it is apparent to the Court that the purpose of a bankruptcy notice is to put pressure on a debtor to pay a debt, rather than to invoke the Court's insolvency jurisdiction, the issuing of the bankruptcy notice will be an abuse of process. However, it is not an abuse of process if a creditor genuinely intends to pursue the matter if there is default in complying with the notice and there is no evidence of collateral purpose or undue pressure: Maxwell-Smith v S & E Hall Pty Limited, in the matter of Maxwell-Smith [2006] FCA 825 at [43] and [44].
105 In Slack v Bottoms English Solicitors [2002] FCA 1445, at [15]-[20], Spender J rejected as unarguable that it is an abuse of process to issue a bankruptcy notice as a means to secure payment of a debt and, in the event of default, to proceed by way of petition for sequestration. Spencer J noted that an express object of a bankruptcy notice is to persuade the debtor to pay the debt the subject of the notice.
47 The correctness of these observations was recently affirmed by a Full Court in Nobarani v Mariconte [2021] FCAFC 96 [42]-[46] (Allsop CJ, Farrell and Derrington JJ). In that case the Court emphasised (at [43]) that it was not a precondition to the issue of a bankruptcy notice that other means of recovering the debtor are exhausted. In a case such as this, the Court said, obtaining a judgment is almost invariably sufficient to put the debtor on notice. At [32], the Full Court endorsed the summary of the relevant principles given by the primary judge in the present case, principles her Honour went on to apply.
48 Third, Mr Quintiliani's affidavit discloses that on 18 August 2020, before he primary judge delivered judgment, the Local Court Proceeding has been dismissed by consent and the parties entered into a deed of release. It also disclosed that on 10 March 2021, after the appeal was lodged, the Judicial Review Proceeding was dismissed with costs on the ground that no arguable grounds of review had been demonstrated which would warrant an extension of time: Alhalek v Kells the Lawyers [2021] NSWSC 205 (Harrison AsJ).
49 In these circumstances, the foundations for the other arguments advanced below have been removed.
50 For all these reasons the appeal must be dismissed.
51 The respondents consented to an order extending the time for compliance with the bankruptcy notice by two business days "as a matter of grace and favour" and we will make that order.
52 Costs should follow the event. At the hearing Mr Parsons of counsel, who appeared for the respondents, foreshadowed an application for indemnity costs in the event that the appeal were successful and sought an opportunity to make submissions about the extent of the costs that might be payable more generally having regard to the fact that the respondents are the solicitors on the record (see Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; 93 ALJR 1007; 372 ALR 555). He should have that opportunity. Mr Alhalek will have an opportunity to respond and, if he chooses to do so, the respondents will be permitted to reply. The matters raised will be decided on the papers.
53 There will be orders accordingly
.I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Katzmann, Derrington and Anastassiou.