The hearing on 27 April 2018
33 At the hearing on the first return date on 12 March 2018, the primary judge advised the appellant that, whilst she bore the onus to establish her claim in due course, on the foreshadowed application for summary dismissal the respondent bore the onus of establishing that it was an appropriate case for the summary dismissal of her claim.
34 As we have said, the respondent filed written submissions of just over seven pages before the hearing. The appellant appears not to have filed any submissions before the hearing.
35 Each member of the Court has read the transcript of the hearing a number of times and has listened to the audio recording of the hearing. We have formed the view that a fair-minded lay observer might reasonably apprehend that the primary judge might not have brought an impartial and unprejudiced mind to the resolution of the question he was required to decide. We have reached that conclusion broadly on the basis of the primary judge's approach to the hearing and the tone and volume of certain statements his Honour made to the appellant. We hasten to add that we are alive to the fact that the issue before us is one of apprehended bias, not what we might consider preferable judicial behaviour, that there are many different approaches to the judicial function, that the demands of a busy court are many and varied, that some self-represented litigants can be demanding and at times frustrating, and that it is plain beyond argument that a judge has the power and, indeed, the obligation to control the proceedings in his or her courtroom. All of these matters need to be borne in mind.
36 In terms of the primary judge's approach, even though the application his Honour was dealing with was made by the respondent, he directed his initial questions to the appellant. That in itself may not have given rise to difficulty, particularly as his Honour had written submissions from the respondent. His Honour sought to understand the appellant's substantive claim and he was entitled to question her about that. The problem was that his Honour never stopped questioning or arguing with the appellant until minutes from the end of the submissions when she spoke uninterrupted for a few minutes. References to the number of lines in the transcript can often be misleading, but even so, save for the final few minutes, we cannot find in 25 pages of transcript any passage of submissions or answers from the appellant beyond seven to ten lines. After an introductory section in which the primary judge quite understandably asks the appellant to identify the sections she is relying on, the balance of the hearing consists almost entirely of argument between the primary judge and the appellant, with the appellant, whatever one might think of the merits of her arguments, remaining for the most part, respectful and straightforward, while the primary judge, with respect to his Honour, is argumentative and overbearing, interrupts the appellant when after a certain point, he would have been well advised to let her finish her submissions and he is too ready to express his exasperation, to belittle the appellant's arguments and (on a number of occasions) to raise his voice. The appellant was told on a number of occasions that she had to prove a matter (p 17, line 3; p 18, line 33; p 19, line 34). The point was reached at various stages in the submissions when the primary judge and the appellant were talking over each other.
37 The audio recording is important in the conclusion which we have reached because the tone and volume of the primary judge's voice at various stages is important. This recording indicates that the primary judge raised his voice and spoke in an aggressive and sometimes intimidating tone of voice on a number of occasions when there was no apparent need to do so (p 13, line 19; p 15, line 30; p 16, line 39; p 17, line 17; p 18, line 18; p 18, line 27; p 19, line 25; p 20, line 18; p 20, line 45; p 23, line 36). On one occasion, he adopts a different voice to state what answer he anticipates the appellant will give to a statement he (the primary judge) has made (p 20, line 22).
38 One of the most significant events at the hearing occurs when the primary judge adopts an enraged and intimidating tone of voice in the course of shouting at the appellant for the purpose of admonishing her for talking over him (p 22, line 6).
39 The following extracts from the transcript are examples of the above, so far as they can be conveyed by the written word.
40 Early in the hearing, the following exchange took place (p 3, line 34 to p 4, line 7):
HIS HONOUR: No, hold it. Hold it. Hold it. Hold it. Okay.
MS DENNIS: All right. Well, the section 1 - - -
HIS HONOUR: You've got to - don't talk over me.
MS DENNIS: I'm sorry-I didn't - - -
HIS HONOUR: Do not ever - - -
MS DENNIS: I didn't.
HIS HONOUR: - - - ever do that.
MS DENNIS: I thought you had - - -
HIS HONOUR: No, no, no. Listen. Listen to what's going on. I'm going to be very patient with you but, as I told you on the first occasion that you were before me, don't ever interrupt me. Now, you see, section 47 tells you something. But, you see, where is there a - where is there a penalty here for in any way breaching this and how is it a - - -
41 At p 5, line 21 to p 6, line 8, the following exchange occurred:
HIS HONOUR: - - - the only people who - the only entity that can apply for civil penalties is ASIC.
MS DENNIS: Well, I don't believe that's correct, your Honour.
HIS HONOUR: So I'm wrong?
MS DENNIS: Well, my entire life has been destroyed.
HIS HONOUR: No, no. I'm wrong, am I?
MS DENNIS: I believe in that case yes, because - - -
HIS HONOUR: Okay.
MS DENNIS: - - - people have to be able to - - -
HIS HONOUR: No. No. Okay. Well, you show me in the Act that - where it is that you, as a person, can apply for - - -
MS DENNIS: I can't do that on the spot, your Honour.
HIS HONOUR: Well, you see, this is the whole point - is that you need to have a cause of action. See, you are coming with me - before me as if, you know, you can just make a submission that its - that it's Mabo; it's the Constitution; it's the vibe. It doesn't work like this. It may work in movies but it doesn't work here. You need to be able to show me exactly what it is that allows you to come to the court. Now, section 166 specifically says:
Within six years of a person contravening a civil penalty provision, ASIC may apply to the court for a declaration the person has contravened the provision.
So when you're looking at 130 and 131, which are civil penalty provisions, how is it that you can come to the court when section 166 specifically says it's ASIC?
42 At p 9, lines 36 to 46 and then at p 10, lines 36 to 41, the following exchange took place:
HIS HONOUR: Well, that's - and that's what you say. But, you see, this is - I've got to make sure - when you start then talking about they've breached what they have to do about your loans, I'm trying to work out - you see, you can't just sort of make things up as you go along. The point is here that you have to have a cause of action and that cause of action has to be well and truly made out in your originating application. Now, at the moment, your originating application is very difficult to work out what it is that you're talking about because of a number of things. Now, you've - you know, there's - in the actual application, that's how we figure out what it is that you've put before the court; okay? The final orders you've put in there - your grounds are (1) that the bank breached its responsible lending applications by declining a temporary loan.
…
HIS HONOUR: No, no, no. You've got to - you - you know, the problem - and this is why people who represent themselves have a real problem: because you can't see the forest for the trees. Now, I'm trying to get to a point where - I'm not going to go through, up hill and down dale, everything that you say. I want to summarise. I want to get to the point that gives me what the grounds of your application are. And the whole point is that they declined to give you a loan. That's it, isn't it?
43 At p 11, lines 21 to 45, the following exchange occurred:
HIS HONOUR: Ms - look, Ms Dennis - listen to me. You go on about, "They haven't done this, they didn't take this into account. Oh, they didn't take this into account. Oh, they didn't take this into account. Oh, they gave me this., Oh, they gave me that." If they had given you a loan, you wouldn't have cared anything about that, would you?
MS DENNIS: No, because I would still be in employment.
HIS HONOUR: Yes, but that's the whole - - -
MS DENNIS: I would be managing my debt.
HIS HONOUR: That's the whole - - -
MS DENNIS: I would have a career.
HIS HONOUR: That's the whole point.
MS DENNIS: My home wouldn't be at stake. My valuable property that's worth about a million - none of that. I wouldn't have been living in poverty for the last two and a half years. No, none - I wouldn't have been through any of that.
HIS HONOUR: That's right.
MS DENNIS: Yes.
44 At p 13, lines 6 to 42 there is a long, unedifying and argumentative exchange where the primary judge and perhaps the appellant appear not to be listening to each other.
HIS HONOUR: It may be, but I don't care what's coming out of the Royal Commission because it makes absolutely no difference to what the evidence is here.
MS DENNIS: Your Honour, it supports the - - -
HIS HONOUR: No, it doesn't.
MS DENNIS: The - the - - -
HIS HONOUR: No, it doesn't. It is not before - - -
MS DENNIS: The basis for case - - -
HIS HONOUR: - - - this court. I deal with what the evidence is before this court.
MS DENNIS: Well, your Honour, I believe that I have provided - like item 37 in my affidavit dated 5 April demonstrates facts which support my case. So you say that I'm making it up as I go along. Well - - -
HIS HONOUR: Well, you have because you haven't - - -
MS DENNIS: - - - that's a - that's a piece of evidence - an email from the Commonwealth Bank which demonstrates facts. That's not making things up as I go along. Maybe I might have - I've explained why I included the FOS determination, and I'm one of - - -
HIS HONOUR: The - the - okay. I will just say that when I said - - -
MS DENNIS: And I've probably made - - -
HIS HONOUR: When I said you've made it up as you go along - is not a claim by me that you're fabricating matters. It's that you're trying to get to a particular point without actually sitting down and looking at what is your cause of action, what are the legislative areas that you have to satisfy, and how is it that you're going to prove them. You haven't done that at all, and you're - - -
MS DENNIS: Well, your Honour, I - - -
45 There are then statements by the primary judge at pp 16 and 17 that one of the appellant's submissions is "rubbish" and that she kept going off on "different tangents" before he again raises his voice.
46 The following exchange occurred at p 18, line 44 to p 19, line 46:
MS DENNIS: - - - I suppose the reality is they didn't take it into consideration because, if they had of taken it into consideration, they would have given me the loan.
HIS HONOUR: Rubbish. That's rubbish. How on earth - you see, your point is, as far as you're concerned, anything that you gave to the bank they must - because you've done it - why do they even need to consider it? If you've said, "I want a loan", they should just give it to you.
MS DENNIS: I'm not saying that at all, your Honour. I'm - - -
HIS HONOUR: Well, that's what it is that you're saying - - -
MS DENNIS: I'm expecting the bank - - -
HIS HONOUR: - - - because you've given them the information and they've just refused it.
MS DENNIS: I'm expecting the bank to honour their legal lending obligations.
HIS HONOUR: What is their legal lending right then?
MS DENNIS: Well, sections - - -
HIS HONOUR: What is it?
MS DENNIS: - - - 130 and 131.
HIS HONOUR: And that's what - that's what you've got to show me. What is it that they've breached here? Go to section 130. What have they breached?
MS DENNIS: I haven't brought section 130 with me, but in the - - -
HIS HONOUR: You're kidding me.
MS DENNIS: With - - -
HIS HONOUR: You're kidding me. You know exactly what today was about where you had to show that you had a case, and you haven't got section 130 of the National Consumer Credit Protection Act, the one section that you say - - -
MS DENNIS: I've got an extract of it - - -
HIS HONOUR: - - - basis - is the basis for your application, and you don't have it.
MS DENNIS: I've got an extract here, your Honour, and, because I'm a self-represented litigant, I thought that my response - you were - - -
HIS HONOUR: And I told you - I told you that, the first time you came here - - -
MS DENNIS: I didn't know what I was supposed to do today.
47 The appellant was on occasions not given an opportunity to answer. To appreciate the point, it is necessary to read the transcript and listen to the audio recording. An example is at p 21, line 26 to p 22 line 20:
HIS HONOUR: That's right.
MS DENNIS: It is.
HIS HONOUR: Because the consumer, on far too many occasions, get in over their head because unscrupulous lenders just keep giving people money when they cannot and could never make the sorts of repayments, and that has caused them all sorts of problems. Your situation is exactly the opposite because what the Commonwealth Bank has done has made a decision that they won't give you more money because, on their view of all the information, you would be in over your head.
MS DENNIS: Well, that was incorrect, your Honour.
HIS HONOUR: That may be incorrect - - -
MS DENNIS: And it breached their -
HIS HONOUR: - - - that - no.
MS DENNIS: - - - their - - -
HIS HONOUR: But how does it breach? How does it breach there, because they've made all the reasonable inquiries and they've come to a view.
MS DENNIS: The Commonwealth Bank of Australia is one of the worst, unscrupulous banks in this country.
HIS HONOUR: You go on. That has got nothing to with it. How have they breached - - -
MS DENNIS: Well, it has everything to do with it.
HIS HONOUR: Do not talk over me again. You understand - understand?
MS DENNIS: I understand, your Honour.
HIS HONOUR: Then don't do it. You go on about all sorts of other things. Stick to the point.
MS DENNIS: This - - -
HIS HONOUR: Section 130 - how have they breached that?
MS DENNIS: All of this - the National Consumer Credit Protection Act being established to protect consumers, it's supposed to be an industry-wide responsible lending conduct requirement for the Commonwealth Bank. It directly affects me and my case. You know, I'm not going off on tangents, your Honour.
48 The statement by the primary judge in the above passage that the appellant should not talk over him again, is delivered in an enraged and intimidating tone of voice and involves the primary judge shouting at the appellant.
49 We have reached the clear view that a fair-minded lay observer might reasonably apprehend that the primary judge might not have brought an impartial and unprejudiced mind to the resolution of the respondent's application for summary dismissal. Having regard to all the circumstances, and we stress, all the circumstances, we conclude that a case of apprehended bias has been established. In the circumstances, it is not appropriate to consider the other grounds of appeal.