Brookfield v Real Estate Now Pty Ltd & Anor [2023] QCA 259

SUPREME COURT OF QUEENSLAND

CITATION: Brookfield v Real Estate Now Pty Ltd & Anor [2023] QCA 259

PARTIES: IAN WALTER BROOKFIELD / (appellant) / v / REAL ESTATE NOW PTY LTD / ACN 153 307 432 / (first respondent) / MARK WILLIAM MERGARD / (second respondent)

FILE NO/S: Appeal No 6907 of 2023

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: District Court at Brisbane – [2023] QDC 86 (Burnett DCJ)

DELIVERED ON: 15 December 2023

DELIVERED AT: Brisbane

HEARING DATE: 22 September 2023

JUDGES: Flanagan JA and Buss AJA and Kelly J

ORDER: The appeal be dismissed.

CATCHWORDS: ESTOPPEL – ESTOPPEL BY JUDGMENT – ISSUE ESTOPPEL – APPLICATION OF ISSUE ESTOPPEL TO WHAT MATTERS – MATTERS NOT DIRECTLY ADJUDICATED ON – where the appellant claimed damages for breach of contract against the respondents for non-payment of moneys due under a rent roll sale agreement – where the learned trial judge dismissed the appellant’s claim – where the rent roll sale was found to have been effected by a different agreement – where there was a history of disputation between the parties – where the appellant submits that an issue estoppel in relation to the indebtedness of the respondents arose from determinations made by various judicial officers in earlier proceedings – where the issue of the respondent’s indebtedness has not been finally determined on the merits by a judicial tribunal – whether an issue estoppel arose / COURTS AND JUDGES – JUDGES – DISQUALIFICATION FOR INTEREST OR BIAS – GENERALLY – where the appellant alleges both apprehended and actual bias on the part of the trial judge – where the allegation of apprehended bias concerns the manner in which the trial judge conducted the trial and dealt with the appellant – where the allegation of actual bias involves a complaint of pre-judgment in relation to the trial judge’s alleged failure to adhere to the doctrine of issue estoppel – whether a fair-minded lay observer could reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of the questions arising in the trial – whether the trial judge was so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented / Uniform Civil Procedure Rules 1999 (Qld), r 142, r 281 / Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353; [1973] HCA 59, considered / Blair v Curran (1939) 62 CLR 464; [1939] HCA 23, considered / Brookfield v Real Estate Now Pty Ltd & Anor [2023] QDC 86, related / Brookfield v RealEstate Now Pty Ltd and Another [2021] QDC 95, considered / Brookfield v Real Estate Now Pty Ltd (2019) 137 ACSR 641; [2019] FCA 993, considered / Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853, cited / Chandrasekaran v Western Sydney Local Health District (t/as Westmead Hospital) [2023] NSWCA 288, considered / Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29, cited / CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50, cited / Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55, cited / Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, cited / Jackson v Goldsmith (1950) 81 CLR 446; [1950] HCA 22, cited / Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34, cited / Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48, cited / Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17, cited / Real Estate Now Pty Ltd v Brookfield [2018] FCCA 3072, considered / Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98, cited / Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28, cited / QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419; [2023] HCA 15, considered

COUNSEL: The appellant appeared on his own behalf / The second respondent appeared on his own behalf and for the first respondent

SOLICITORS: The appellant appeared on his own behalf / The second respondent appeared on his own behalf and for the first respondent

1. FLANAGAN JA: The appellant, Mr Brookfield, appeals from an order made by the learned trial judge dismissing his claim against the respondents, Real Estate Now Pty Ltd and Mr Mergard.¹ By his claim, Mr Brookfield sought damages for breach of contract and misleading or deceptive conduct.

2. The matter has a long and unfortunate history. It has produced a number of judgments and has been accurately described as involving “a significant amount of enmity and animosity” between Mr Brookfield on the one hand and Mr Mergard, the sole director of Real Estate Now, on the other.² Most, if not all, of the disputation between the parties has derived in one way or another from the alleged debt which is the subject of these proceedings.

3. By an amended statement of claim filed 3 December 2021, Mr Brookfield alleged that:on 6 July 2015, Real Estate Now, while the subject of a deed of company arrangement, entered into an agreement to purchase a “rent roll” from Blueprop Pty Ltd (since deregistered) for the sum of $100,650.00 (“the Brookfield Agreement”).Real Estate Now did not disclose to Blueprop at the time of the Brookfield Agreement or thereafter that it was the subject of a deed of company arrangement.the Brookfield Agreement was performed to the extent that the rent roll was transferred to Real Estate Now, but neither the purchase price, nor any of the profits derived from the rent roll pending completion of the sale, was ever paid to Blueprop.Blueprop subsequently, but prior to its deregistration, assigned its interest in the debt alleged to have arisen under the Brookfield Agreement to Mr Brookfield under a deed of assignment dated 31 October 2016.

4. On its face, the Brookfield Agreement is between Blueprop, Real Estate Now and Mr Mergard. The parties are described as the vendor, the purchaser and the warrantor, respectively. It is signed by Mr Mergard (on behalf of Real Estate Now) and a Ms Nightingale (on behalf of Blueprop). Mr Mergard does not appear to have signed as warrantor, despite being described as such in the body of the agreement. Ms Nightingale had been a director of Blueprop, but subsequently resigned. Both signatures appear to have been witnessed by Mr Brookfield.

5. Mr Brookfield appeared for himself at trial. The claim for damages for breach of contract was premised on the non-payment by Real Estate Now of the moneys due to Blueprop pursuant to the Brookfield Agreement. The misleading or deceptive conduct claim contended that Mr Mergard’s failure to disclose that Real Estate Now was the subject of a deed of company arrangement misled Blueprop as to the company’s solvency, thereby inducing it to enter the Brookfield Agreement.

“In the circumstances I prefer the evidence of Mergard concerning the creation of the Brookfield Agreement…. In this proceeding I am satisfied on the balance of probabilities that the agreement governing arrangements between [Real Estate Now] and Blueprop concerning the sale and purchase of Blueprop’s rent roll was the Mergard Agreement. The parties were bound by the Mergard Agreement.”

This appeal

9. The parties to this appeal are self-represented. Mr Mergard appeared both for himself and Real Estate Now.

10. The notice of appeal identifies some 36 grounds which, when read together with Mr Brookfield’s amended outline of submissions, appear to raise in substance two primary issues.

11. First, Mr Brookfield submits that an issue estoppel in relation to the alleged indebtedness of the respondents under the Brookfield Agreement arose from determinations made by various judicial officers in earlier proceedings. That is, contrary to the trial judge’s finding that the sale was governed by the Mergard Agreement, Mr Brookfield contends that the question of the respondent’s indebtedness under the Brookfield Agreement was foreclosed in these proceedings. Mr Brookfield refers, in particular, to the decisions of Judge Jarrett of the Federal Circuit Court,⁶ Derrington J of the Federal Court,⁷ and Porter KC DCJ of the District Court of Queensland.⁸ He also refers to observations made by the trial judge during a directions hearing on 5 September 2022 and an investigation report prepared by the Queensland Police Service (“QPS”).

12. Secondly, Mr Brookfield alleges both apprehended and actual bias on the part of the trial judge. The allegation of apprehended bias concerns the manner in which his Honour conducted the trial and dealt with Mr Brookfield. By reference to the transcript of the trial, Mr Brookfield relies on a number of statements made by his Honour which are said to be either (i) inappropriate because they are “abrupt and terse” without justification, or (ii) unnecessarily critical of Ms Nightingale’s absence as a witness. The allegation of actual bias involves a complaint of pre-judgment in relation to his Honour’s alleged failure to adhere to “the doctrine of precedent”. The reference to “the doctrine of precedent” in the notice of appeal, when read together with Mr Brookfield’s amended outline of submissions, is better understood as a reference to the doctrine of issue estoppel. Essentially, Mr Brookfield’s complaint of actual bias relies on the trial judge’s refusal to consider, or permit reference to, particular documents including the findings of the QPS and the decisions of Judge Jarrett, Derrington J and Porter KC DCJ.

13. Ordinarily, questions of bias should be addressed first because the necessary result, if bias is established, is a retrial. This was explained by the High Court in Concrete Pty Limited v Parramatta Design & Developments Pty Ltd.⁹ However, in this case, it is convenient to deal first with the question of issue estoppel as it provides some necessary context to the complaints made by Mr Brookfield.

Further background

15. In order to properly consider the issues raised by Mr Brookfield, it is necessary to outline some relevant aspects of the earlier litigation concerning the parties.

16. As already observed, Blueprop purportedly assigned the debt to Mr Brookfield on 31 October 2016. Real Estate Now apparently received notice of that assignment but refused to pay him any money. This led to both a number of unsuccessful attempts by Mr Brookfield to wind up Real Estate Now based on various statutory demands as well as numerous collateral disputes, including Mr Mergard (or his solicitors) reporting Mr Brookfield to the QPS on several occasions.

Investigation by the QPS

17. Mr Mergard first complained to the QPS about Mr Brookfield on or around 30 October 2017. Among other things, the complaint alleged stalking by Mr Brookfield. It appears however, that on or around 8 November 2017, the QPS closed their investigation into this complaint on the basis that the issues raised were civil in nature.

18. On or around 25 October 2018, further correspondence was sent to the QPS by Mr Mergard’s solicitors, Mills Oakley. The correspondence was accompanied by additional documents said to evidence wrongdoing by Mr Brookfield. Relevantly, it was alleged that Mr Brookfield had forged Mr Mergard’s signature on the Brookfield Agreement.

19. The QPS subsequently prepared a report detailing the outcome of their investigation into the complaints made against Mr Brookfield. Relevantly, in respect of the forgery allegation, the report records that a review of the documents supplied revealed “[n]o evidence to support the allegation of criminality”.¹⁰ The other allegations were rejected on similar grounds.

20. In or around 2019, for reasons that are not immediately clear, the QPS subsequently sought to charge Mr Brookfield with various offences relating to misuse of a carriage service and stalking. The relevant authorities ultimately did not proceed with those charges.

Decision of Judge Jarrett

21. In the course of the earlier proceedings, Real Estate Now accrued a number of costs orders against Mr Brookfield. They were assessed and became the subject of a bankruptcy notice which was served on Mr Brookfield. Mr Brookfield did not comply with that notice and, on 7 June 2018, Real Estate Now presented a creditor’s petition for the sequestration of his estate.

22. On 5 October 2018, the application by Real Estate Now for a sequestration order was dismissed by Judge Jarrett of the Federal Circuit Court.¹¹ The reasons for that dismissal are important in the context of this appeal. His Honour identified that the primary ground on which Mr Brookfield opposed the creditor’s petition was that Real Estate Now was and remained indebted to Mr Brookfield in the amount of $285,000.¹² Several other grounds were raised but ultimately rejected. Judge Jarrett described the contractual basis on which Mr Brookfield asserted the debt by reference to both the Brookfield Agreement, including the failure by Real Estate Now to pay amounts due under that agreement, and Blueprop’s subsequent assignment of the debt to Mr Brookfield.¹³ His Honour then made the following finding:¹⁴

“… None of [Mr Brookfield’s] evidence is answered in these proceedings. I was taken to no evidence that would suggest that the contract of sale [that is, the Brookfield Agreement] is not a contract of sale which is otherwise enforceable as between the parties to it or that the assignment from [Blueprop] to [Mr Brookfield] in this case was not a good and effective assignment, notice of which has been given to the petitioning creditor.

In those circumstances, and notwithstanding that there is perhaps no legal proceedings to enforce those legal transactions in the way in which I have described them, it is tolerably clear and I am satisfied that the respondent establishes that he has a debt owed to him by the petitioning creditor which arises in the way in which I have explained. It is a matter which is the subject of specific grounds of opposition in his notice of grounds of opposition filed on 27 July, 2018.”

23. Without making any specific finding as to the amount owing, his Honour concluded as follows:¹⁵

“I am satisfied that there is a debt owed by the petitioning creditor which far exceeds the debt owed by [Mr Brookfield] to the petitioning creditor and in those circumstances it is sufficient, in my view, to displace the petitioning creditor’s prima facie entitlement to a sequestration order.”

24. There was no appeal from his Honour’s decision.

Decision of Derrington J

25. On 31 October 2018, Mr Brookfield issued a statutory demand on Real Estate Now. He relied on the alleged debt purportedly assigned to him by Blueprop.

26. While there was evidence that Real Estate Now filed an application in the Supreme Court of Queensland to set aside the statutory demand, the application was unable to be served on Mr Brookfield within the prescribed period due to apparent administrative difficulties in the Registry. No application was made to extend time.

27. The matter proceeded in the Federal Court to a hearing before Derrington J for the winding up of the company on 5 June 2019. Real Estate Now was represented by counsel and solicitors, and opposed the winding up application primarily on the basis that the alleged debt was disputed. In his affidavit, Mr Mergard disputed the alleged debt on the same basis as he did before the trial judge in the current proceedings. He asserted that the Brookfield Agreement was the product of fraud and that the sale of the rent roll was in fact effected by the Mergard Agreement.

28. Derrington J considered that although all the procedural steps had been complied with, there remained two issues: first, whether Mr Brookfield was in fact a creditor of Real Estate Now and to what extent; and, secondly, whether Real Estate Now was solvent.¹⁶ His Honour considered it necessary to determine, as a preliminary matter, whether the earlier decision of Judge Jarrett created an issue estoppel in relation to the question raised by the first issue.

29. In dismissing the winding up application, Derrington J relevantly held:No issue estoppel in relation to the alleged debt or liability of the respondents to Mr Brookfield arose from the findings and judgment of Judge Jarrett because his Honour was not called upon to finally determine as an issue between the parties whether Real Estate Now was indebted to Mr Brookfield in the amount he claimed. No issue estoppel arose from the dismissal of the sequestration order.¹⁷On the hearing of Mr Brookfield’s application for its winding up, Real Estate Now was therefore entitled to contest that it was not indebted to Mr Brookfield despite the existence of the reasons and judgment of Judge Jarrett.¹⁸While the failure of Real Estate Now to take steps to set aside the statutory demand revealed some delinquency on its part, there was a serious question as to whether Real Estate Now was truly indebted to Mr Brookfield. There were real grounds on which the alleged debt was disputed. That being so, Real Estate Now was granted leave to oppose Mr Brookfield’s application for its winding up on the grounds that Real Estate Now was solvent, including that the alleged debt claimed by Mr Brookfield was not owing.Absent the debt (which was disputed on substantial grounds), Real Estate Now was or was likely to be solvent.

“Neither party sought to cross-examine the other in relation to the evidence given in the affidavits. It follows that it is not possible to resolve the conflict of evidence in the material about the identity of the relevant sale contract. All that the Court has are contradictory affidavits about the identity of the contract of sale and nothing on which it can act to determine which is likely to be correct. It would, therefore, appear that debt on which the applicant relied for the statutory demand and on which he relies for the purposes of standing is disputed and it is not possible to resolve that dispute on the evidence before the Court. Mr Brookfield carries the onus of establishing all matters relevant to the winding up and, necessarily, a conclusion that the debt on which he relies is genuinely disputed necessarily undermines his claimed status as a creditor.”

31. There was no appeal from his Honour’s decision.

Decision of Porter KC DCJ

32. On 20 May 2021, Mr Brookfield filed an application in these proceedings seeking default judgment on his claim and statement of claim on the basis that Mr Mergard had failed to “serve” a defence.

33. On 27 May 2021, the application was dismissed by Porter KC DCJ on the basis that, pursuant to r 281 of the Uniform Civil Procedure Rules 1999 (Qld) (“the Rules”), the entitlement to default judgment on a claim and statement of claim only arises if a defence has not been filed.²³ Mr Mergard had in fact filed a defence but had apparently failed to serve it on Mr Brookfield. This amounted to no more than a failure to comply with the Rules: r 142.

34. Although it was not sought by either party, his Honour also made an order staying the proceedings until the resolution of the committal process relating to Mr Brookfield’s stalking charges.²⁴

35. Having made those orders, his Honour proceeded to make some observations about the inadequacy of the pleadings in terms of both form and content. His Honour was particularly critical of Mr Mergard’s defence and counterclaim, observing that they were apt to be struck out and ought to be amended once the proceeding was reinstated. Relevantly, as to the defence, his Honour observed:²⁵

“The defence in its current form is not a proper defence under the Rules. I was minded before I heard about the difficulties of the criminal proceedings to strike it out today. I am not going to do that only because I do not want to put in place directions that need to be complied with reasonably promptly in respect of a matter that I have stayed. However, I want to make it crystal clear to the defendants that in my respectful opinion the defence is apt to be struck out. It would be struck out by any Judge of this court without a moment’s thought. And the defendants should now, because this case will go ahead eventually, turn their minds to a proper pleading by way of defence to the statement of claim in accordance with the Rules.”

36. It is evident that his Honour’s comments in this regard were directed to ensuring proper compliance with the Rules so that when the stay was eventually lifted, the matter could proceed quickly and efficiently. His Honour did not consider, let alone determine, any of the issues in dispute between the parties. Nor would it have been appropriate for his Honour to do so in the context of an application for default judgment.

Directions hearing before the trial judge

37. On 5 September 2022, the present matter came before the trial judge for a directions hearing. The apparent purpose of the hearing was to set a tentative date for trial. Mr Brookfield appeared for himself. Mr Mergard was not present.

38. In the course of the hearing, Mr Brookfield expressed his view that the only “live issue” between the parties was the amount of the debt said to be owing. According to him, an issue estoppel in relation to the alleged indebtedness of the respondents under the Brookfield Agreement had arisen from the decisions of Judge Jarrett and Porter KC DCJ, as well as the findings of the QPS investigation.²⁶ Without expressing any view as to whether this was so, his Honour indicated to Mr Brookfield that it was a matter which ought to be pleaded.²⁷

39. It is readily apparent from the following exchange with Mr Brookfield that his Honour had not formed any concluded view on the question of issue estoppel:²⁸

“HIS HONOUR: … [I]mportantly, it all starts with the pleadings, and you gentlemen still seem to not be able to get the pleadings together. So if you can put a reply in that addresses all of this - - -

PLAINTIFF: Yes.

HIS HONOUR: - - - it will make it a lot easier for me to understand what the issues are, and it might well be that I can say on day 1, ‘Look I’ve read the pleadings and this defence is made – is not made out. It can’t be made out because another judge has already ruled on this point.’ And that’s the end of it.

PLAINTIFF: Yes.

HIS HONOUR: I won’t hear any evidence on that point. I’ll only hear issues in relation to the issues that are alive between you, that is, the evidentiary issues where I need to make findings of fact. So it’s … in your interests as well to file a pleading that identifies the judgments and the passages in the judgment you say support your contention that the defence has no merit, because if that’s the case, I’m not going to revisit what another judge has already determined.

PLAINTIFF: Yes.

HIS HONOUR: I’m not going to hear any evidence about those matters. I’m going to act upon the determination of another judge, and it doesn’t matter whether it’s in this court or some other court; provided it’s a determination on a point that is alive in this trial, I will act upon that determination, because there’s a very strong principle of law that requires me to act upon the determination of other judges, particularly if they haven’t been appealed. So I don’t know if that’s made it clear to you?

PLAINTIFF: Yes it has, your Honour. Crystal, yes.

HIS HONOUR: You need to file a document called a reply which puts all this in it, so that it makes it easy for me to know what it is I’ve got to determine, otherwise we’ll sit here and I’ll just hear your evidence and I’ll try and work out, as I say, … the best I can, from the way in which you present your cases, what the true position is.”

No issue estoppel arose

40. In his reply filed on 19 October 2022, Mr Brookfield relevantly pleaded:²⁹

“The [judgment] of Judge Jarrett dated 5 October 2018 supports the debt owed to Mr Brookfield and relied upon the signed sales and purchase agreement [that is, the Brookfield Agreement] to make such [a] finding.”

41. It is apparent from the trial judge’s reasons, which did not expressly consider the question of issue estoppel, that his Honour took the view that no issue estoppel arose. His Honour considered that the alleged indebtedness of the respondents under the Brookfield Agreement was a live issue between the parties. So much is evident from the finding set out at [8] above.

42. Mr Brookfield, by his reply, sought to raise at trial the question of issue estoppel, albeit limited to the decision of Judge Jarrett. The issue estoppel now sought to be raised goes further than that which was pleaded. As he was self-represented both at trial and on appeal, it is not inappropriate for this Court to consider the question of issue estoppel in each of the contexts now relied upon by Mr Brookfield. Mr Brookfield relies not only on the decision of Judge Jarrett, but also the decisions of Derrington J and Porter KC DCJ. He also refers to the findings of the QPS investigation and the statements made by the trial judge in the course of the directions hearing.

43. The doctrine of issue estoppel operates to preclude the raising of an ultimate issue of fact or law in a subsequent proceeding which was necessarily resolved as a step in reaching the determination made in an earlier proceeding.³⁰ In Blair v Curran,³¹ Dixon J stated in an often-cited passage:

“A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.

Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established.”

44. It is well-established that an issue estoppel may only be created by a decision pronounced by a “judicial tribunal”.³² As Dixon J noted, an issue estoppel is limited to a “state of fact or law … the existence of which is a matter necessarily decided by the prior judgment, decree or order” (emphasis added). In Administration of Papua and New Guinea v Daera Guba,³³ Gibbs J observed:

“The use of the phrase ‘judicial tribunal’ in this context is convenient as indicating that an estoppel of this kind does not result from a mere administrative decision, but the question whether such an estoppel is raised is not answered by inquiring to what extent the tribunal exercises judicial functions, or whether its status is judicial or administrative … The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of parties…”

45. In this respect, Mr Brookfield faces a fundamental difficulty in contending that the finding made by the QPS in respect of the forgery allegation – that there was “[n]o evidence to support the allegation of criminality” – created an issue estoppel. It must be accepted that in no sense can the finding by the QPS be understood as a decision made by a “judicial tribunal” which has jurisdiction to finally decide a question arising between the parties. Further, any outcome from an investigation by the QPS could only be based on the untested evidence uncovered by the investigating officers.

46. It must also be accepted that the comments made by the trial judge in the course of the directions hearing did not, and could not, amount to a judicial determination directly involving an issue of fact or of law. As has already been observed, his Honour did not form any concluded view about, let alone determine, the issues raised.

47. The question whether the decision of Judge Jarrett created an issue estoppel in relation to the indebtedness of the respondents under the Brookfield Agreement was considered in the subsequent decision of Derrington J. Derrington J answered that question in the negative on the basis that a judge in bankruptcy is not required to determine rights inter partes but instead must satisfy himself or herself that the discretion ought to be exercised to make a sequestration order. In circumstances where neither party sought to challenge the reasons of his Honour, it is unnecessary to reconsider the question in the context of this appeal. It is sufficient for present purposes to adopt the following passage from his Honour’s reasons (bold emphasis added):³⁴

“Although, prima facie, it appears that the issue of the indebtedness between the parties was one determined by the Federal Circuit Court and, therefore, within the scope of the issue estoppel principle … it would appear that the decision not to make the sequestration order did not have that effect. The question before the Federal Circuit Court on the application for a sequestration order was whether it was satisfied as at that time a sufficient debt was owing and whether, in the exercise of the Court’s discretion, the sequestration order should be made. This was explained by Beaumont J in Gye v McIntyre (unreported, FCA, Beaumont J, 26 May 1992, BC9203507; sometimes cited as [1992] FCA 235). In that case a judge had previously refused to make a sequestration order on the basis that he was not satisfied that a sufficient debt was then due and owing. In subsequent proceedings by the petitioning creditor, the debtor alleged an issue estoppel existed as to the question of indebtedness. His Honour held that no issue estoppel arose because the only question before the first judge was whether there existed a relevant debt at the time of the application and, as that had not been established, the discretion was exercised to refuse to make the sequestration order. …

The observations of Beaumont J have been referred to and relied upon subsequently: Makhoul v Barnes (1995) 60 FCR 572 at 581–2; where it was identified that the rationale for this principle was that, when called upon to make a sequestration order, the judge in bankruptcy is not required to determine the rights as between the parties but to determine whether they are satisfied that the discretion ought to be exercised to make the order sought: Re Vitoria [1894] 2 QB 387; R v Henderson [1898] AC 720. …

… Nevertheless, it follows that because Judge Jarrett was not called upon to “determine as an issue between the parties the ultimate question whether the judgment debtor is indebted to the judgment creditor in the amount claimed”: Makhoul v Barnes at 581; no issue estoppel arises from the dismissal of the sequestration order. It can be observed that the above authorities concerned the question of whether the existence of the petitioning creditor’s debt was finally determined. Here, of course, the debt in question was that claimed by Mr Brookfield which he set up against the petitioning creditor. Nevertheless, the principle referred to applies with equal force to that issue.

The above is sufficient for the purposes of establishing, on the hearing of the winding up application, that the company was entitled to contest that it was not indebted to Mr Brookfield despite the existence of the reasons and judgment of Judge Jarrett.”

48. As to whether the decision of Derrington J itself created an issue estoppel, it suffices to reiterate that his Honour did not, and was not required to, determine whether the alleged debt was in fact owing. As his Honour observed, the substantive dispute about the alleged debt was not one that could be “finally determined” on the evidence before him.³⁵ Absent any such final determination of the issue, no issue estoppel could possibly arise.

49. Finally, in relation the decision of Porter KC DCJ, it is not entirely clear from Mr Brookfield’s submissions how the decision is said to create an issue estoppel. Mr Brookfield appears to submit that his Honour’s comments about the inadequacy of Mr Mergard’s pleadings, including that they were “apt to be struck out”, somehow bound the trial judge. They did not; nor could they. In the absence of an order striking out the pleadings, any question about formal compliance with the Rules was a matter for the trial judge. In any event, Porter KC DCJ made no findings which are relevant to this appeal.

50. It follows that no issue estoppel in relation to the indebtedness of the respondents under the Brookfield Agreement arises in this case. This ground of appeal fails.

No apprehended or actual bias

51. The relevant tests to be applied in determining allegations of either apprehended or actual bias are not in dispute.

52. As Kiefel CJ and Gageler J recently stated in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“QYFM”) (original footnotes):³⁶

“The criterion for the determination of an apprehension of bias on the part of a judge was definitively stated in Ebner by reference to previous authority³⁷ and has often been repeated³⁸. The criterion is whether ‘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’³⁹. The ‘double might’⁴⁰ serves to emphasise that the criterion is concerned with ‘possibility (real and not remote), not probability’⁴¹.

Application of the criterion was identified in Ebner⁴², and has been reiterated⁴³, logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.”

53. By contrast, actual bias requires an assessment of the state of mind and actual views of the decision-maker.⁴⁴ Such an assessment is undertaken, at least for the most part, by reference to what the decision-maker has said or done.⁴⁵ Recently, in Chandrasekaran v Western Sydney Local Health District (t/as Westmead Hospital) (“Chandrasekaran”),⁴⁶ Gleeson JA (with whom Leeming and Adamson JJA agreed) helpfully summarised the relevant principles:

“Allegations of actual bias against a judicial officer are serious and should not lightly be made. Nor are they readily made out. An allegation of actual bias must be distinctly made and clearly proved: see the discussion in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]-[74]. An allegation of actual bias in the form of pre-judgment requires that the appellant establish that the trial judge was ‘so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented’: Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [72] (Gleeson CJ and Gummow J; Hayne J agreeing at [176]). As Gleeson CJ and Gummow J observed at [71], ‘the question is not whether a decisionmaker’s mind is blank; it is whether it is open to persuasion’.

Mr Brookfield’s complaints

54. In both his oral and written submissions, Mr Brookfield referred to a great number of passages in the transcript of the trial which, he submitted, evidenced either apprehended or actual bias on the part of the trial judge. It is unnecessary to identify each of these passages. For present purposes, it is sufficient to summarise Mr Brookfield’s complaints in the following way.

55. As already observed, Mr Brookfield’s allegation of apprehended bias relies on a number of statements made by the trial judge which are said to be either (i) inappropriate because they are “abrupt and terse” without justification, or (ii) unnecessarily critical of Ms Nightingale’s absence as a witness. As to (i), the relevant passages from the transcript reveal that on more than one occasion, the trial judge interrupted Mr Brookfield while he was responding to questions. His Honour made comments such as “I’m not interested in your verbiage”,⁴⁷ and “Look, Mr Brookfield, you’re not selling anything to me. Okay? … I’m not the purchaser of some prospective products, so put your sales talk aside. Just answer [my questions]”.⁴⁸ Mr Brookfield sought to compare this “abrupt and terse” tone with the relatively civil manner in which his Honour was said to have treated Mr Mergard. As to (ii), the trial judge described Ms Nightingale’s medical exemption as “an extraordinary coincidence”⁴⁹ and “very convenient”.⁵⁰

56. Mr Brookfield’s allegation of actual bias relies on the trial judge’s repeated refusal to consider, or permit reference to, particular documents including the findings of the QPS and the decisions of Judge Jarrett, Derrington J and Porter KC DCJ. Mr Brookfield sought to characterise such refusals as evidence of pre-judgment by his Honour on the question of issue estoppel. Mr Brookfield referred in particular to the following exchange which occurred at the conclusion of the trial:⁵¹

“PLAINTIFF: Your Honour, I - and I - I say this respectfully. On the - the last occasion that we appeared before you last year - and I stand corrected on this if I have this understanding wrong - you made a specific statement to both parties that you could not go behind the judgments of Jarrett and Derrington.

HIS HONOUR: That’s correct.

PLAINTIFF: You’ve said – you’ve said repeatedly that in - from our trial that you’re not interested in what they found because you’re making your own findings, which I, you know, respectfully accept. There’s not an issue with that. But a lot of your comments to date have contradicted the findings of Jarrett and Derrington, which were reported decisions which remain. They were never appealed.

HIS HONOUR: Their Honours have not tested the facts. Their Honours have simply proceeded on the papers. This is a trial.

PLAINTIFF: Yes.

HIS HONOUR: I’m determining the facts based upon my assessment of the evidence.

PLAINTIFF: Yes, your Honour.

HIS HONOUR: It’s an entirely different situation. I’m not bound by any of their rulings. Their rulings in fact - it’s plainly implicit - because each of the applications was dismissed, it’s plainly implicit that their Honours found that there were triable issues. This is a trial to determine what the actual position is.”

57. In addition, Mr Brookfield relies on his Honour’s reasons for judgment, which are said to reveal a preference for the evidence of Mr Mergard. Although this complaint is expressed as alleging both actual and apprehended bias, it is better understood as only an allegation of actual bias for the reasons expressed by the High Court in Michael Wilson & Partners Ltd v Nicholls.⁵² In particular, Mr Brookfield referred to the following passage from his Honour’s reasons:⁵³

“Ultimately, I have reservations concerning any of the oral testimony of either Mergard or Brookfield as evidence of the full truth of matters and I will not act upon their evidence in the absence of objective evidence supporting a contested assertion by either, except to a limited extent. For reasons which follow, I have concluded that on most material matters the objective evidence supports Mergard’s case. Accordingly, where there is a contest between Mergard and Brookfield I have generally preferred the evidence of Mergard and will act upon it unless otherwise stated. Additionally, in my view, his case also accords with human experience and is generally consistent.”

Apprehended bias

58. The difficulty with Mr Brookfield’s assertion of apprehended bias is that he has failed to articulate any logical connection between the trial judge’s conduct and the possibility that his Honour might depart from impartially determining the disputed issues on their merits.

59. As to the “abrupt and terse” tone of the trial judge, his Honour’s interruptions generally occurred in the context of Mr Brookfield avoiding or plainly refusing to answer questions that had been put to him. It can also be observed that his Honour was at times equally “abrupt and terse” with Mr Mergard.⁵⁴ Properly understood, the interruptions constituted nothing more than his Honour ensuring that irrelevant answers were not given and irrelevant issues were not pursued at trial. As already observed, this was in the context of both parties being self-represented and particularly antagonistic towards one another. So much would have been apparent to a fair-minded observer.

60. In addition, none of the comments about Ms Nightingale’s absence as a witness could lead a fair‐minded observer to reasonably apprehend that the trial judge might not bring an impartial and unprejudiced mind to the resolution of the questions before the court. Convenient as the medical exemption might have been, there is nothing in the transcript which could lead a fair‐minded observer to reasonably apprehend that his Honour did not accept it as a valid explanation. Although the reasons for judgment are not determinative for the purpose of deciding whether there is a reasonable apprehension of bias,⁵⁵ they reveal that the trial judge did in fact accept the explanation for Ms Nightingale’s absence and that his Honour expressly declined to make a Jones v Dunkel inference.⁵⁶

Actual bias

61. Contrary to Mr Brookfield’s submission, the fact that the trial judge refused to consider the findings of the QPS or the decisions of Judge Jarrett, Derrington J and Porter KC DCJ is not evidence that his Honour was not open to persuasion in respect of issues to be decided at the trial. It is clear enough from the passage extracted at [56] above that his Honour had formed a reasoned view that no issue estoppel had arisen. As has been established, his Honour was correct in that view. There is therefore no substance to Mr Brookfield’s allegation that his Honour demonstrated actual bias by refusing to further consider the question of issue estoppel. Such refusal by his Honour was for the evident purpose of ensuring the trial proceeded efficiently and according to law.

62. Further, as observed by Gleeson JA in Chandrasekaran, “[t]he circumstances in which actual bias can be demonstrated solely from the published reasons for decision are considered to be rare and exceptional”.⁵⁷ It is sufficient to observe that there is nothing exceptional about the trial judge preferring the evidence of Mr Mergard for the reasons given in the passage extracted at [57] above. His Honour’s evidentiary finding does not support a conclusion that the trial judge was not open to persuasion on any issue to be decided at the trial.

63. This ground of appeal fails.

Disposition

64. The appeal should be dismissed.

65. BUSS AJA: I agree with Flanagan JA.

66. KELLY J: I agree with the reasons of Flanagan JA and with the order proposed by his Honour.

Footnotes

1. Brookfield v Real Estate Now Pty Ltd & Anor [2023] QDC 86 (“Reasons”). ↩

2. Brookfield v Real Estate Now Pty Ltd (2019) 137 ACSR 641, [1] per Derrington J. ↩

3. While not relevant to the present appeal, Mr Mergard also counterclaimed against Mr Brookfield in respect of his “lies and forged documents”. ↩

4. Reasons, [10]. ↩

5. Reasons, [49]. ↩

6. Real Estate Now Pty Ltd v Brookfield [2018] FCCA 3072. ↩

7. Brookfield v Real Estate Now Pty Ltd (2019) 137 ACSR 641. ↩

8. Brookfield v RealEstate Now Pty Ltd and Another [2021] QDC 95. ↩

9. (2006) 229 CLR 577, [2]–[3] per Gummow ACJ, [117] per Kirby J. ↩

10. AB 115. ↩

11. Real Estate Now Pty Ltd v Brookfield [2018] FCCA 3072. ↩

12. Real Estate Now Pty Ltd v Brookfield [2018] FCCA 3072, [2]. ↩