Chen v Monash University

1. The interlocutory application dated 1 March 2016 be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT 1 On 15 December 2015, I heard and dismissed an application by Dr Chen for the stay of execution of an indemnity costs order made against her on 5 June 2015 in proceeding VID 857 of 2013. In February 2016, I sat as one of the three judges hearing an application by Dr Chen to reinstate her appeal against the dismissal of her application in the proceeding in which the indemnity costs order was made. Judgment on that application has been reserved. Dr Chen has since made application that I recuse myself from determining the application to reinstate her appeal on the ground of actual bias. 2 Actual bias exists where the decision maker has prejudged the case against the applicant, or has acted with such partisanship or hostility as to show that the decision maker has made up his or her mind against the applicant and is not open to persuasion in favour of the applicant whatever evidence or arguments may be presented: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [72]; Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 424; [2001] FCA 565 at [82]. 3 Dr Chen relies on various matters in support of her application for recusal. 4 First it is alleged that: At [the] hearing on 15 Dec 2015, Davies J explicitly stated the principle of "an appropriate case" but stopped me demonstrating the merit of my appeal case. Subsequently, her Honour made alterations in her written ruling and the Court transcript reporter deleted her oral judgement and made materials (sic) omissions and alterations about my oral submissions, which effectively masked the above biased conducts. 5 The complaint is that I did not permit Dr Chen at the hearing of her stay application to demonstrate the merits of her proposed appeal, although I "was fully aware" that the relevant principle for the grant of a stay "is whether an appropriate appeal case has been demonstrated" as I had stated in the oral reasons delivered on 15 December 2015 that: Whilst I accept that Dr Chen firmly believes that she has an arguable case on her application for reinstatement and appeal if leave to reinstate is granted, it is necessary for her to demonstrate a reason or an appropriate case to warrant the exercise of discretion in her favour. 6 Dr Chen's submissions indicate that she understood "an appropriate case" to mean that I "should grant a stay if … there are reasonable prospects of success". The contention was that the revision of the wording in the published reasons to "it is necessary to demonstrate that the circumstances warrant the grant of a stay and such circumstances have not been made out" was "an attempt to set aside" the "relevant" principle. The contention is not supported by the reasons. It appears that Dr Chen has not appreciated that I accepted for the purposes of the application for a stay that Dr Chen has reasonable prospects of success in her proposed appeal. The reasons record: I have taken into account the argument by Dr Chen that she has reasonable prospects of success and assumed for present purposes (but without deciding) that she does have reasonable prospects. However, for the reasons I have given, even assuming that there are reasonable prospects of success, Dr Chen has not made out a case that it is appropriate for the stay to be granted. Dr Chen did not succeed on her application for a stay because I was not satisfied that she had made out an "appropriate case" for the grant of a stay. Dr Chen may disagree with my conclusion that she had not made out a case for the grant of a stay but her disagreement with the decision does not mean that I am affected by bias against her. 7 The allegation also proceeds on the assumption that the transcripts of oral judgments are usually supplied as part of the transcript of the hearing. Auscript (the transcript provider) does not supply the transcript of an oral judgment and this appears on the Federal Court website: transcript/party-access (see Annexure A). The reason why the transcripts of oral judgments are not supplied as part of the transcripts of the hearing is that oral reasons for judgment are not in final form for publication as they may be revised by the judge after delivery. Once in final form, the Court publishes the reasons. 8 Dr Chen has also alleged that Auscript "made materials omissions and alterations about [her] oral submissions". In particular, she contends that parts of her oral submissions were "dropped" or "mis-transcribed" in the official court transcript of the 15 December hearing. It appears that Dr Chen may think that I had some involvement in the official court transcript that was produced. The production of the transcript was Auscript's responsibility and I did not have any involvement in the process. 9 Therefore, I reject the allegation that I engaged in conduct in relation to the 15 December 2015 hearing that shows actual bias against Dr Chen. 10 It is then alleged against me that: At [the] hearing on 9 and 10 Feb 2016, Davies J initiated an opportunity that assisted the Respondents to submit plainly false remarks which the Respondents hided (sic) and did not make in their either written or oral submissions. The false remarks were then protected by a court's decision from my rebuttal. The above factually undeniable bias is amounted to actual bias, it is irrelevant whether the bias was intent (sic) or not. 11 The allegation is that I "played a critical, responsible role in creating" the circumstances that the Respondents were able to make "plainly false, dishonest and court-misleading remarks in their Table of Factual Grounds". It was submitted that I "initiated that opportunity" for the Respondents, referring to the following exchange at transcript page 77 lines 26-31: DAVIES J: I would be assisted by you [counsel for the Respondents] telling us what paragraphs of the judgment of Tracey J you find the relevant parts. MS NELSON: Of each - in relation - I can do that orally if that's of assistance to you. Your Honour, I can hand up an amended table in the morning which refers to the paragraphs of the judgment. Dr Chen stated that subsequently the Respondents submitted their Table of Factual Grounds "which indeed refers to the paragraphs of the judgment, but making plainly false and seriously court-misleading points". 12 Dr Chen appears to have misunderstood my request of counsel for the Respondents. The table produced by the respondents had not cross referenced the paragraphs of the judgment below and, as the transcript records, the only request that I made of the Respondents' counsel was to identify the relevant parts of the judgment below, which the presiding judge also considered would be helpful (T77, lines 33-37). The Respondents were not asked to do anything more than insert the paragraph numbers of the judgment below into the table that had been provided to the Court. 13 Dr Chen states that the "false remarks were then protected by a court's decision from my rebuttal". I understand this to raise a grievance that she was not permitted to provide further written submissions after the hearing in response to the updated table. Dr Chen's disagreement with the Court's ruling does not mean that I am affected by bias against her. 14 Dr Chen also alleges that as one of three judges on the Full Court Bench hearing her application for leave to reinstate her appeal, I would not allow her to rely on additional documents directed at challenging the decision of Tracey J to refuse leave to Dr Chen to issue a subpoena, although that was one of her grounds of appeal and the Respondents were permitted to tender documents to show that Tracey J properly refused leave. Dr Chen further alleges that after she challenged that decision, the presiding Judge "decided on his own" to allow her to tender part of her additional documents. Dr Chen appears to be of the view that I was responsible for the ruling that was given. However, as the transcript records at page 43 line 32, the ruling was the decision of the three members of the Court, not just my decision. It may be that Dr Chen gained the impression that I made the ruling because the presiding judge conferred with me. The presiding judge did so in the usual way that a presiding judge will confer with the other members of the Court before giving the Court's ruling. Later, some of the documents did go into evidence after counsel for the Respondents advised that there was no objection to Dr Chen tendering those particular documents. As the transcript records at page 58 lines 21-24, it was "in those circumstances" that the presiding judge allowed the tender of Dr Chen's documents. 15 Accordingly, I reject the application that I should recuse myself for actual bias. None of the matters raised by Dr Chen lead to the conclusion or show that I have a closed mind against Dr Chen and will not determine her application for leave to reinstate her appeal objectively, impartially and without prejudgment. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.