Carter v Region Group Pty Ltd

Representation: Counsel:
J Makowiak (Respondent)
Solicitors:
Barry Nilsson (Respondent)
Applicant (self-represented)

File Number(s): 2026/00209342

JUDGMENT

(This is an edited version of ex tempore reasons for judgment delivered on 2 July 2026).

Background

1. This is a defamation suit that was commenced by the plaintiff on 21 May 2026. It concerns two publications, both dated 12 March 2026: a newspaper article, and a Facebook post which attached a hyperlink to the newspaper article. The general subject matter of the article concerned the plaintiff’s litigation against the University of Wollongong which the plaintiff had commenced in the Supreme Court of New South Wales.

Procedural context

2. The first return date for the proceeding was scheduled to be in the Defamation List on 18 June 2026 before me, as the District Court’s Defamation List Judge.

3. However, on 17 June 2026, the plaintiff sent an email (at 1:52pm) to the Registrar, requesting a reallocation so that “a different judicial officer” could case manage this proceeding. A copy of the plaintiff’s email is MFI 1. As is patent on the face of that particular email, the plaintiff’s request appears influenced by the circumstance that earlier that day, I delivered judgment in another proceeding in which the plaintiff was a party, being Carter v University of Wollongong [2026] NSWDC 195 (the ‘Preliminary Discovery Judgment’). That judgment concerned the plaintiff’s applications for preliminary discovery against the University of Wollongong (the ‘University’).

4. In the email to the Civil Registry that is MFI 1, the plaintiff identified what he regarded as his grounds for appealing my Preliminary Discovery Judgment. He also indicated his concerns that:

(a) there is actual or potential overlap between the issues in the plaintiff’s action against the defendant in this proceeding and matters that I determined in the plaintiff’s proceeding against the University; and (b) but for my recusing myself, I would be case-managing his proceeding against the defendant in this proceeding, whilst an appeal by him was on foot from the Preliminary Discovery Judgment.

5. On 17 June 2026, the plaintiff filed a notice of intention to appeal, seeking leave to appeal to the New South Wales Court of Appeal from some of the orders made in the Preliminary Discovery Judgment.

6. On 18 June 2026, when the matter was before the Court for its first return date before me, sitting as the District Court’s Defamation List Judge, the plaintiff, confirmed that he wished to apply for my recusal in this proceeding for apprehended bias. In accordance with Practice Note 17 (paragraph 15), which regulates the Court’s Defamation List, it was unnecessary for him to formally file a notice of motion. MFI 1 effectively served the function of a notice of motion.

7. Nevertheless, the Court determined that it was appropriate that Mr Carter present his application with precision and care. To enable him to do that, on the first return date, the Court referred him to the decision of the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (‘Ebner’). With reference to what he wrote in MFI 1, Mr Carter was asked to address in his submissions the points for which he apprehends there would be “cross-over” between this proceeding, and the proceeding the subject of the Preliminary Discovery Judgment.

8. On 18 June 2026, the Court made directions for evidence and submissions on Mr Carter’s application, and for the defendant to serve any evidence and submissions it wanted to rely upon in response.

9. The applicant swore an affidavit of 18 June 2026, which annexed the Preliminary Discovery Judgment (SMC1), email correspondence between the applicant and my Associate dated 3 June 2026, sent on the eve of the hearing that gave rise to the Preliminary Discovery Judgment (SMC2), the transcript of the proceeding on 4 June 2026 (SMC3), and the Notice of Intention to Appeal and Summons dated 17 June 2026 in respect of the Preliminary Discovery Judgment (SMC4). The applicant’s affidavit was Exhibit A at the hearing. The applicant also prepared written submissions in support of his application (MFI 2).

10. The defendant neither consents nor opposes the recusal application.

11. To understand the plaintiff’s arguments, it is necessary to say more about the present proceeding and the proceeding in which I rendered judgment.

The University of Wollongong’s investigation into student misconduct

12. In early August 2025, multiple complaints were brought by students and staff of the University against the plaintiff. These were made to the Safe and Respectful Communities Team (SARC). Before August 2025, the plaintiff already had some negative interactions with SARC. He perceived that he had been disadvantaged by false or inaccurate reporting by University staff of his performance in examinations and, as a result, he made a number of complaints. He was granted a leave of absence from his studies for the second half of 2025.

13. On 7 August 2025, the University invoked a special procedure that significantly curtailed the plaintiff’s rights of access (in a variety of ways) to the University, pending an investigation into misconduct by the Primary Investigation Officer (PIO), Ms Edgington. The same day, the plaintiff complained to the SARC Co-ordinator about bullying and harassment. Over the following days, SARC indicated that it would not investigate his complaint whilst he was under investigation. The plaintiff took this to amount to a dismissal of his complaint and indicated his intention to appeal it. He raised a complaint of bias against the PIO.

14. An external investigator was appointed and on 27 January 2026, that investigator published a report determining that the plaintiff had been found guilty of two particulars of student misconduct. The plaintiff was notified of this on 29 January 2026. Limitations upon his access to the University continued. The plaintiff has appealed those findings.

15. On 23 February 2026, the plaintiff commenced a suit for declaratory and injunctive relief regarding those access limitations in the Supreme Court of New South Wales. On 24 February 2026, the Supreme Court granted declaratory and injunctive relief: Carter v University of Wollongong [2026] NSWSC 155.

The plaintiff’s case vs Region Group Pty Ltd

16. What follows is a brief summary of the plaintiff’s case against Region Group Pty Ltd (henceforth ‘the publisher’) distilled from the plaintiff’s statement of claim.

17. The defendant is an online newspaper publisher. At the time of the impugned publications, (12 March 2026) the plaintiff had commenced what might be described as an internal appeal (i.e. within the procedures adopted by the University), known as his ‘Primary Investigative Officer Appeal’, about findings that had been made about his misconduct as a student. That appeal had not yet been determined and the plaintiff continued to dispute the findings (and allegations) of his misconduct.

18. The background to the impugned publications also included that, two days after he obtained declaratory and injunctive relief in the Supreme Court, on 26 February 2026, the Executive Dean of SMAH, Senior Professor McLaughlin informed the plaintiff that the University had decided to discontinue the misconduct investigation. That meant that the University had not proceeded to any final misconduct determination.

19. Also, it is said that the publisher’s journalist, Ms Cartwright (the author of the first of the impugned publications), knew of the plaintiff’s contact details (email and mobile phone number) from February 2026.

The First Matter Complained of

20. This was an online article that Ms Cartwright authored with the title ‘Spat between UOW and med student lands in Supreme Court’. It was published on 12 March 2026 and subject to an amendment (recording that the University’s decision adverse to him was invalid and ineffective), apparently remains online.

21. In substance, Ms Cartwright reported on the proceeding in the Supreme Court in terms which the plaintiff alleges are defamatory.

The Second Matter Complained of

22. This was a Facebook post, also published on 12 March 2026, which the plaintiff characterises as ‘promoting’ the online article and providing a hyperlink to the article. Subsequently (on 18 March 2026), this publication was taken down.

Alleged imputations

23. The plaintiff alleges that overall, the publications conveyed that:

24. he had engaged in offensive, harassing and inappropriate conduct towards University staff and students;

25. he had made threatening communications to female students;

26. he had engaged in vexatious or improper conduct in his dealings with the University;

27. allegations of serious misconduct against him were established; and

28. he was a person whose conduct justified being banned from the University campus and IT systems.

Serious harm caused by the Publications

24. This essential element was particularised in paragraphs 27, 27A-27E of the Statement of Claim. Amongst other things, the plaintiff referred to: distress, embarrassment, and reputational harm; (social) avoidance by people known to him, reduced engagement from peers, and his own reduced engagement within his academic environment.

The Court’s decision concerning the plaintiff’s applications for preliminary discovery

25. This section of the reasons addresses: (a) the disputes between the plaintiff and the University that were the subject of the Preliminary Discovery Judgment; and (b) the matters that the Preliminary Discovery Judgment decided.

What were the disputes?

26. The disputes that were resolved fell broadly (and at the risk of some over-simplification) into three categories:

(a) The plaintiff’s application for preliminary discovery identifying students who published or republished what was referred to in the judgment as the April and June 2025 Publications. [1] (b) The plaintiff’s application for preliminary discovery indicating documents (including the actual complaints) made to Associate Professor Parker-Newlyn. [2] (c) A dispute about three categories of documents about which the plaintiff sought preliminary discovery from the University following his filing of a summons on 22 January 2026. That summons was heard before Wass SC DCJ on 9 April 2026 but was adjourned, eventually being heard with the dispute about categories (a) and (b) above. In a very general way, the plaintiff indicated that he was inclined to commence a proceeding against the University for defamation, breach of contract and negligence, for loss and damage occasioned to him by the processes leading up to August 2025, when the University invoked its ‘Urgency Provisions’, and continuing until late February 2026, when the University decided to discontinue the student misconduct investigation concerning him.

What did the Court determine?

27. By the Preliminary Discovery Judgment, the Court essentially determined that:

(a) It was not in the interests of justice for the plaintiff to obtain preliminary discovery as to the students who published or republished what was referred to in the judgment as the April 2025 Publications, as the Court was not satisfied that:

(i) the plaintiff had an objectively based desire to commence proceedings against the students who sent the email on 2 April 2025; and (ii) there was apparent weakness in such a case, for the reasons submitted by the University, including the generalised assertions of the serious harm. [3]

(b) It was not in the interests of justice for the plaintiff to obtain preliminary discovery as to the students who published or republished what was referred to in the judgment as the June 2025 Publications, as the Court was not satisfied that:

(i) the plaintiff had an objectively based desire to commence proceedings against the student(s) who provided the message to Associate Professor Parker-Newlyn; and (ii) there was apparent weakness in such a case, for the reasons submitted by the University, including the generalised assertions of the serious harm, doubt about the gravity of the imputations that had been alleged, and an arguable prospect of a defence of qualified privilege. [4]

In the case of both (a) and (b), the Court emphasised that the plaintiff appeared to have enough information to bring a suit (at least in contract) against the University. [5]

(c) As to the dispute about the categories of preliminary discovery that arose following the hearing before Wass SC DCJ, the Court determined to:

(i) follow, or at least purport to follow, her Honour’s course of permitting a ‘staged’ approach by which the applicant could review the documents that the University agreed to provide to him; and (ii) prefer the University’s proposed construction of categories 3 and 5, whilst granting the plaintiff the opportunity to apply to relist the proceeding should he wish to agitate for more documents (including the proposed new, or additional, category for discovery that he had advanced shortly before the hearing on 4 June). [6]

Relevant principles

28. As noted, at a directions hearing on 18 June 2026, the Court attempted to assist the applicant, who represents himself, by drawing to his attention the High Court’s seminal decision in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.

29. The applicant referred to that decision, and other decisions of the High Court, in his written submissions (MFI 2). These were identified in paragraphs 13-18 (incl) of his written submissions. From the authorities that the plaintiff referred to, the following principles can be distilled:

(a) The ultimate question 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 (Ebner at [6]). (b) Application of the apprehended bias principle requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. Only then can the reasonableness of the asserted apprehension of bias be assessed (Ebner at [8]). (c) The observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”: Johnson v Johnson (2000) 201 CLR 488 (‘Johnson’) at [12]. (d) One category of case where the impartiality of a Court may be, or appear to be, compromised, includes where the judge has engaged in conduct in the course of, or outside of the proceedings giving rise to such apprehension: Webb v The Queen (1994) 181 CLR 41 at 74; approved in Ebner at [24]. (e) The reasonable apprehension of bias that the judge will not decide a case impartially or without prejudice, but rather will decide the case adversely to one party, must be “firmly established” before prohibition will issue. A gratuitous observation adverse to a party, made in the course of proceedings or in extra-curial speech is one thing; a finding properly made by a judge in the course of an interlocutory ruling or in earlier proceedings is another. As to the latter situation, this is an area in which courts should be astute not to defer to that kind of apprehension that is engendered by the anticipation of an adverse outcome, rather than a legitimate concern about partiality. By way of example, the fact that a judge who has made a finding of fact adverse to a party on particular evidence is likely to make the same finding on the same evidence, is not of itself indicative of bias. It could be indicative of consistency, subject to the judge having an open mind when it came to argument about the effect of the evidence: British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 (‘British American Tobacco’) at [39], [44]-[45], [71]. On the facts in British American Tobacco (by 3-2 majority), the plurality held (at [145]) that:

“In addition to the possibility of the evidentiary position changing, a reasonable observer would note that the trial judge’s finding of fraud was otherwise expressed without qualification or doubt, that it was based on actual persuasion of the correctness of that conclusion, that while the judge did not use violent language, he did express himself in terms indicating extreme scepticism about BATAS’s denials and strong doubt about the possibility of different materials explaining the difficulties experienced by the judge, and that the nature of the fraud about which the judge had been persuaded was extremely serious. In the circumstances of this unusual case, a reasonable observer might possibly apprehend that at the trial the court might not move its mind from the position reached on one set of materials even if different materials were presented at the trial – that is, bring an impartial mind to the issues relating to the fraud finding.”

(f) If a judge at first instance considers that there is any real possibility that his participation in a case might lead to a reasonable apprehension of pre-judgment or bias, they should, of course, refrain from sitting. On the other hand, it would be an abdication of judicial function, and an encouragement of procedural abuse, for a judge to adopt the approach that they should automatically disqualify themselves whenever they were requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by them as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court: Livesey v New South Wales Bar Association (1983) 151 CLR 288 (‘Livesey’) at 294. Livesey was later recognised as an instance where the lay observer might reasonably apprehend that a judge, who had found a state of affairs to exist, or who had come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case: British American Tobacco at [139]. (g) The reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them: Johnson at [13]; British American Tobacco at [45].

30. In addition to the High Court authorities that the applicant referred to, the principles were collated in a unanimous decision of the New South Wales Court of Appeal in Polsen v Harrison [2021] NSWCA 23 at [46]. The propositions distilled by the Court in that case included, among others, the following:

31. the application of the apprehended bias rule depends on the circumstances of each case (proposition (i));

32. a finding of apprehended bias is not to be reached lightly (proposition (iv));

33. the duty of a judge to disqualify for proper reasons is matched by an equally significant duty to hear any case in which there is no proper reason to disqualify (proposition (vi));

34. interventionist comments or conduct by a judge will not unilaterally create an apprehension of bias in the mind of the reasonable lay observer, who is taken to understand that such interventions are often motivated by the judge’s desire to understand the evidence and to advance the trial process (proposition (xii));

35. there is to be attributed to the fair-minded observer a broad knowledge of the material objective facts as ascertained by the appellate court and the “actual circumstances of the case” as though the observer was sitting in the court (proposition (xiv));

36. the fair-minded lay observer is taken to know the nature of the decision, the circumstances which led to the decision and the context in which it was made (proposition (xv));

37. the context which must be considered includes the legal, statutory and factual context in which the decision is made, and “the totality of the circumstances”, although the fair-minded lay observer will not be taken to have a detailed knowledge of the law or legal principles (proposition (xvi)); and

38. the fair-minded lay observer will have regard to the cumulative effect of comments made by a judge and not to particular individual statements removed from their context (proposition (xxii)).

The plaintiff’s arguments for recusal

31. Certain matters should be emphasised about the applicant’s written submissions at the outset:

32. The applicant disclaimed reliance upon actual bias as a ground for recusal. That is, the applicant only relied upon apprehended bias.

33. Whilst citing a range of factors which he said pointed to the propriety of recusal, the applicant appeared to submit that no one factor, viewed in isolation, necessarily warranted recusal. His application was put on the basis that it was the cumulative effect of those factors which warranted recusal.

34. The factors that the applicant identified may be summarised as follows.

35. First, in the Preliminary Discovery Judgment, evaluative findings were made concerning his motives, reasons for commencing proceedings, and future litigation objectives; and weight was placed upon his decision not to commence proceedings against the University. These were substantially connected to issues yet to be determined.

36. Secondly, the applicant says that findings were made in the Preliminary Discovery Judgment which relate to prospective defamation proceedings. He says that findings were made in that judgment about his intended claim against the students regarding the April and June 2025 publications, including on serious harm, qualified privilege, his objective desire to sue (the students), and causation issues. These, he contends, are issues that are also likely to arise in the current proceeding against the publisher. Indeed, he contends that I would need to ‘revisit’ issues concerning publication, serious harm, reputational damage, illegal conduct, and litigation intentions and motives.

37. Thirdly, the applicant contends that there is a substantial overlap in the issues raised in this proceeding and those that were considered in the Preliminary Discovery Judgment. Issues of the plaintiff’s reputation, publication, dissemination, serious harm and related issues which arise in this proceeding are comparable to the issues addressed in the Preliminary Discovery Judgment, where findings were made as to whether the prospective defamation proceedings (against the students in connection with the April and June 2025 publications) possessed sufficient substance; whether publication had occurred; whether serious harm could be demonstrated and whether an issue of qualified privilege arose. Further, in this proceeding, as in the Preliminary Discovery Judgment application, views were expressed about the findings made by Dhanji J in the Supreme Court judgment.

38. Fourthly, the earlier proceeding manifested a pattern of judicial interventions during the hearing on 4 June 2026; all of which needed to be considered cumulatively. In his written submissions, the applicant pointed to:

39. a significant disparity (in number) between my interventions when the applicant presented argument and when Counsel for his opponent presented argument (paragraph 38-39); and

40. “repeated curtailment” of the applicant’s attempts to explain relevance, context, merits, settlement context, attempts to obtain information, and reply submissions (paragraph 40).

41. An associated point that the applicant raised involved the circumstances in which the earlier proceeding was transferred from Wass SC DCJ to me. The applicant appeared aggrieved that he was uncertain as to the extent to which I had considered the evidentiary material that was before Wass SC DCJ, the procedural history before her Honour, and context for the remaining disputed categories 3 and 5. The applicant relies upon these matters as part of the broader factual context for submitting that the current proceeding should now be determined by another judicial officer.

42. Fifthly, the circumstance that the applicant has now instituted appellate processes from the Preliminary Discovery Judgment forms part of the overall context. In particular, the lay observer would understand that I have recently expressed detailed views about him that are now under appellate challenge and that, but for my recusal, I would be asked to determine another proceeding concerning him with overlapping issues.

43. Overall, and emphasising again the cumulative weight to be accorded to these factors, the applicant appears to rely upon prejudgment and a prior disposition to decide issues against the applicant, influenced by views as to his litigation intentions, motives and reputational harm. It is said that the issues in the current proceeding substantially overlap with issues that I had previously determined, such that the lay observer would reasonably apprehend that conclusions reached in the Preliminary Discovery Judgment would consciously or unconsciously influence future determinations involving the same litigant and similar subject matter.

Consideration

40. Not losing sight of the applicant’s submission that all of the suggested factors needed to be considered cumulatively, analytically, it is unavoidable for me but to follow the applicant’s example and deal with each of the factors first.

General matters

41. But before I do, it is pertinent to emphasis some contextual matters relevant to the reasonable lay observer’s consideration.

42. On 4 June 2026, the Court was required to make a procedural decision. It is not uncommon in interlocutory disputes for a decision to be made about whether a party or a non-party must produce documents that an applicant claims an entitlement to. It happens regularly, of course, in disputes about subpoenas and (general) discovery. It is not uncommon in such disputes for a Court to consider whether an applicant has a legitimate forensic purpose for the use of court process (as opposed to engaging in ‘fishing’) and whether it is in the interests of justice, including those of the entity (whether it is a party or a non-party) resisting such a claim, having regard to a range of potential discretionary considerations, including the utility of the application. Preliminary discovery might be thought to have similar features; although there are specific court rules that need to be addressed, in addition to more discretionary matters.

43. It is a rare case where, in an interlocutory decision, a Court is required to engage in a full or final evaluation of the merits of any party’s case, a party’s subjective motivations or purposes in commencing or defending litigation, or the credibility or reliability of matters that they say or depose to in evidence relied upon in that interlocutory application. This is seen, for example, in applications for interim injunctive relief. Virtually by definition, the evidentiary record is incomplete, and it is generally acknowledged that a litigant who has commenced, or become subject to, litigation is entitled to use court processes to build that evidentiary case up to a final hearing.

44. Another matter that the reasonable lay observer should be taken to know is that in any procedural decision, the Court itself has certain obligations. The applicant acknowledges the legitimacy of ‘judicial interventions’ under the general law in Johnson. But they are also framed in a statutory context since, by s 58(1)(iii) of the Civil Procedure Act 2005 (NSW), the Court must seek to act in accordance with the dictates of justice. For the purposes of determining what the dictates of justice in a particular case are, s 58(2) of the Civil Procedure Act states, amongst other things, that the Court must have regard to the provisions of sections 56 and 57.

45. Section 56 relevantly provides:

(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

46. Section 57 provides:

(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects—

(a) the just determination of the proceedings,

(b) the efficient disposal of the business of the court,

(c) the efficient use of available judicial and administrative resources,

(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

(2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).

47. Section 57(1)(b) generally reflects the reality that, most often, judges have more than one matter on the go, as it were, for their consideration. Section 57(1)(c) reflects the circumstance that judicial resources are not infinite. That is, particularly apt when there is a special list for a certain class of lawsuit and a limited pool of judges who sit in defamation matters in this Court.

48. Further, where a party is self-represented, the reasonable lay observer is taken to understand the limits of a judge’s role. This was recently considered in Chalik v Chalik [2025] NSWCA 136, where, in a unanimous judgment, the New South Wales Court of Appeal observed:

“[69] The question of the extent, if any, of assistance which a trial judge or appellate court should afford to an unrepresented litigant in civil proceedings is nuanced and has been the subject of many intermediate appellate judgments of this Court since Rajski was decided almost 40 years ago. Those decisions have emphasised that an unrepresented litigant should be provided with sufficient information about the practice and procedure of the court to ensure a fair trial takes place: see, for example, Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 at [48]; Jeray v Blue Mountains City Council [2010] NSWCA 153 at [14]. Even then, care must be taken not to disturb the balance which the rules of practice and procedure are designed to afford both parties: Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [39], citing Barton v Wright Hassall LLP [2018] UKSC 12; [2018] 1 WLR 1119 at [18] per Lord Sumption.

[70] In Bauskis v Liew [2013] NSWCA 297 at [69], Gleeson JA (Beazley P and Barrett JA agreeing) noted that the duty of a trial judge to assist an unrepresented litigant ‘does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant’. In Cicek v Estate of late Solomon [2014] NSWCA 278 at [130], Ward JA (Meagher and Barrett JA agreeing) held that none of the cases her Honour had reviewed:

‘suggests that the primary judge in the present case had a duty to advise the appellants as to the inadequacies in their evidence having regard to the pleaded case or to adjourn the proceedings in order to permit them further time to re-plead their case in order for it to accord with the statement being made from the bar table as to the forgery complaints. A duty to provide information in order to attempt to overcome the procedural disadvantages faced by a self-represented litigant is not a duty to run the case for him or her.’

[71] Handley JA expressed similar views more than 20 years earlier in Rowett v Westpac Banking Corp [1993] NSWCA 240:

‘Nevertheless, the role of a judge in a civil case is not to actively assist one party against the other; to advise one party against the other; or in any way to act as the legal adviser or the legal representative for that party even if that party is unrepresented. The role of the judge in a civil case in our system is to act as the umpire and he or she has no active role such as may occur under our system in criminal proceedings where a citizen is facing the State as prosecutor, and the judge has a proper role in protecting the accused, especially an unrepresented accused. Civil cases involve citizen (corporate or otherwise) against citizen, and the judge’s role, as I have said, is that of an umpire.’

[72] See also Hamod v State of New South Wales and Anor [2011] NSWCA 375 at [315]-[316]; Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 at [51]; Stone v Braun [2015] WASCA 103 at [62]-[69] per Beech J, Buss and Mazza JJA agreeing; Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 at [74]-[75]. More recently, in Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [21] McCallum JA (Basten and Leeming JJA agreeing) observed that ‘the Court is not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point’.”

49. As was indicated in Lee v Huo [2026] NSWCA 15 at [72]-[73], the extent of assistance to be given to a self-represented litigant may be affected by some apparent characteristics of the self-represented litigant. The applicant, a postgraduate medical student, is intelligent, articulate and literate; and in the course of submissions in both the hearing that gave rise to the Preliminary Discovery Judgment and the present recusal application, he cited judicial decisions in support of propositions that he advanced. As is apparent on the face of the transcript of the hearing before Wass SC DCJ in April and the hearing before me on 4 June 2026, he regularly engaged in exchanges – inevitably involving at least some level of interruption – with the Bench and, it struck me that, for the most part during the hearing before me, he did so without any apparent concern or expressed complaint.

50. The recusal application is substantially made to preclude any involvement by myself in this proceeding, at a time when any hearing is quite likely to be some time away and the identity of the hearing judge is indeterminate. However, I work on the premise that if there be any apprehended bias, it would preclude my having any involvement in the case management of the matter up to the commencement of the hearing.

51. Finally, the reasonable lay observer would be aware that in the District Court, there is only one Defamation List Judge at any one time. Arrangements for all of the Court’s judges’ case commitments are premised upon the expectation that the Defamation List Judge will case-manage matters up to hearing and resolve interlocutory disputes as they arise.

Analysis of the factors raised by the applicant

52. The first and second factors referred to by the applicant can be considered together. I agree that, when considering whether the applicant was entitled to preliminary discovery of the categories of documents relating to the April and June 2025 publications involving students, weight was given to the circumstance that the applicant had not commenced a proceeding against the University. I disagree that evaluative findings were made about the applicant’s subjective state of mind. As it appears from my earlier description, the findings concerned his objective state of mind and amounted to acceptance of a submission raised by the University on the basis of the evidence. Such findings as were made were not gratuitous, but were made in response to the issues presented on the application for preliminary discovery. The findings said nothing adverse about the plaintiff as to his credibility or reliability. It is a long way away from what occurred in British American Tobacco, where a judicial finding of fraud was made about a witness after a final hearing. The findings said nothing in themselves of my capacity, if presented with factual issues about the applicant’s credibility or reliability based upon the entirety of the evidence the parties had marshalled for any final hearing in the proceeding, to bring an impartial state of mind to their resolution.

53. Even if there was some ‘evaluative’ finding about the applicant’s subjective motivations or intentions for litigation, it is difficult to see how they will be relevant in the current proceeding, otherwise than in the general sense of what they may indicate about his credibility. At a basic level, unlike the proceeding giving rise to the Preliminary Discovery Judgment, the applicant has already commenced a proceeding. There is no issue about his motivation to commence litigation; unless, perhaps, the defendant argues that the commencement of proceeding is an abuse of process; say, by reason of the plaintiff having an improper or collateral purpose. But already the parties have agreed to a timetable for directions (prior to this application), and there is currently no sign of the defendant suggesting that there is any abuse of process.

54. Secondly, I am not persuaded that the applicant has demonstrated any substantial “cross-over”, as he calls it, in the subject matter of this proceeding and the Preliminary Discovery Judgment. In particular, I am unable to discern any cross-over between the pleaded imputations in this proceeding, and the imputations that were apparent in the April and June 2025 student publications. The Court accepted the University’s submission that a reason to decline preliminary discovery in connection with that, or those, applications, was that it was apparent that the prospective actions had weaknesses or difficulties, including in relation to serious harm and the possibility of potential defences. But as the language clearly implied, they were impressionistic views about publications that are different in nature to the publication in the present proceeding: a report about litigation in the Supreme Court. The facts that may be necessary to sustain a qualified privilege defence about the student publications of April and June 2025 are likely to be very different to the facts that might give rise to the same defence of the publisher in this proceeding.

55. As to the remaining (third, fourth and fifth) points, all of them feature criticisms of, or complaints about, the Preliminary Discovery Judgment. The applicant has filed two separate court processes in the New South Wales Court of Appeal: a notice of intention to appeal and a summons seeking leave to appeal. But in relation to the latter, he has not placed before the Court on this application the ‘White Folder’ to support the summons, which would enable the Court, on this application, to understand his argument. Nor has he furnished the Court with any draft notice of grounds of appeal.

56. One thing, I think, is clear. A party with repeat litigation in this Court should not easily be able to have a judicial officer removed from case managing litigation merely on the basis that the judicial officer has previously rendered an ‘adverse’ procedural decision against that party and the party seeks to appeal it. If that was so, in the example of where, say, a judicial officer refuses an application brought by the State of New South Wales to set aside a subpoena and the State seeks to appeal that decision, the judicial officer could not then case manage other proceedings to which the State is a party.

57. Sometimes a situation arises where a judicial officer is called upon, in a preliminary way, to consider matters that are themselves likely to involve appellate scrutiny. One example of this is an application for a stay of a judgment; where the apparent reasonableness of grounds of appeal is relevant to the decision-maker.

58. In the circumstances, albeit with some circumspection, I consider the third and fourth factors raised by the applicant on his application.

59. As to the third of those, the judicial interventions on 4 June 2026, there are several points to be made. First, I do not consider that a mere comparison count of the number of interventions made while the applicant addressed the Court and while counsel for the University addressed the Court to be a useful indicator of apprehended bias. Such comparisons are a little like statistics in sentencing in the criminal sphere. So much depends upon the context for any particular intervention.

60. Secondly, at least in relation to the matters referred to in (a), (b) and (c) (identified as the “strongest examples”) in paragraph 40 of the applicant’s written submissions, it is not adverse to a litigant to be told by a judge that they need not try to persuade the judge of something (so long as the judge does not later go on to do precisely that). It is a typical means by which a judicial officer clears away false issues. What is significant is whether the applicant can demonstrate that the interventions prove partiality against a particular party. I am not persuaded that the applicant does so here.

61. As to the matter in (d) in paragraph 40, it is unusual for a judge to be asked by a litigant whether the judge want**s submissions on a particular matter. Such a question may involve a mild or subtle form of interrogation into the judicial mindset which, in a civil hearing, is incompatible with the judicial officer’s role to act as an umpire, and is, on that account, embarrassing.

62. At any rate, it was clear both on the eve of the hearing (see page 33 of the applicant’s affidavit, in SMC2) and at the outset of hearing on 4 June 2026 that the Court had indicated to the applicant that it was for him to decide what evidence he relied upon. The evidentiary material and arguments that the applicant relied upon at the hearing was set out in paragraph 65 of the Preliminary Discovery Judgment. It is not clear what apprehended bias arose from that indication.

63. As to the matter in (f) in paragraph 40, it is, I think, a matter of common knowledge and, at any rate, I consider that the reasonable lay observer would know, that a Court will be concerned where, without express disclosure or attribution, a party, whether represented or not, uses AI. At paragraph 9 of the ‘Guidelines for New South Wales Judges in Respect of Use of Generative AI’ issued on 21 November 2024, it is said that:

“Judges may require litigants (including litigants in person) and legal representatives including counsel to disclose any use of Gen AI in respect of written submissions or other documents placed before the Court, and may also require an assurance that any such documents have been verified for accuracy, including an identification of the process of verification followed including, where applicable, for the purpose of ensuring compliance with Practice Note SC Gen 23.” (Emphasis supplied.)

64. Although paragraph 9 refers to a Practice Note issued by the Supreme Court, the same guidelines apply to all courts in New South Wales (paragraph 1) and, at any rate, the Supreme Court Practice Note SC Gen 23 has been adopted in the District Court. [7] It followed an indication of the ‘limits, risks and shortcomings’ of large language model Gen AI. On their face, it is a relevant inquiry for a judicial officer to make. An earlier decision of the District Court concerning a self-represented litigant’s use of AI in the preparation of written submissions commented upon multiple inaccuracies and indicated that an appropriate response may be for the Court to ignore the self-represented litigant’s submissions. [8]

65. The Court’s raising of the issue of use of AI in submissions with the applicant did not evidence bias.

66. As to the applicant’s fourth point, this is similar to a point made previously. If the applicant was ‘uncertain’ as to the extent of the Court’s ‘familiarity’ on 4 June 2026 with the evidentiary record that had gone before, the Court cannot be responsible for that subjective state of mind. Before the hearing (on 3 June) and again at the hearing (on 4 June), as the passages referred to indicate, it was made clear to the applicant, an intelligent man, that he had the opportunity to place the material that he desired to rely upon before the Court.

67. At any rate, it is difficult to discern where the applicant’s point leads, since he was not finally deprived of anything. His expressed uncertainty as to the material that the Court relied upon was in connection with the application that had been heard by Wass SC DCJ on 9 April 2026. The end result of that particular application for preliminary discovery, when reference is made to the orders that were made (orders 1 and 2), was that the applicant obtained some benefit (although not as much as he would have liked), with the opportunity to apply for a relisting to advance any further case for preliminary discovery that he might wish to make. That the applicant is dissatisfied with that result (in order 1) and has chosen to seek leave to appeal does not suggest a closure of the judicial mind if presented with new disputes concerning the applicant.

68. Today in oral argument, the applicant referred to “material misstatements”. I understood this to be misstatements of things that were said by Dhanji J and Wass SC DCJ. If there be any error in such misstatements, it does not amount to apprehended bias.

69. It may be seen that I have not been persuaded by any of the individual factors identified by the applicant. Cumulatively, I am also not persuaded that the applicant has made out his case for recusal.

70. It follows that, applying Ebner, I am not satisfied that the first limb of the test, being conduct suggestive of an absence of impartiality, or antipathy to the applicant, in the reasoning process concerning the Preliminary Discovery Judgment, has been established. Nor am I persuaded that anything said in that reasoning would, consciously or subconsciously, influence future determinations, be they procedural or substantive, of the issues as they may become apparent in this proceeding. I am also not persuaded that the second stage in Ebner has been proven.

71. In the circumstances, it is unnecessary to consider whether the principle of necessity might provide an additional answer to the applicant’s application.

72. The applicant’s recusal application is dismissed.

73. Since the defendant took a neutral position on the recusal application, it should not have its costs of attending argument on the recusal application.

74. The proceeding is adjourned for directions in the Defamation List on 16 July 2026.

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Endnotes

The April 2025 publications are identified at paragraph [23] of the Preliminary Discovery Judgment. The June 2025 publications are identified at paragraph [26] of the Preliminary Discovery Judgment.

Categories (a) and (b) were crystallised by the plaintiff’s notice of motion filed in the earlier proceeding on 18 May 2026.

Paragraphs [102]-[103].

Paragraph [104].

Paragraph [105].

Paragraphs [86]-[88].

District Court General Practice Note 2 - Generative AI Practice Note. The Practice Note commenced on 3 February 2025.

Bottrill v Graham & Anor (No 2) [2025] NSWDC 221 at [75].