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[2020] FCA 844
Federal Court of Australia
2020-06-17
Collier J
Original judgment source is linked above.
Division: General Division
National Practice Area: Other Federal Jurisdiction
Counsel for the First Respondent: The First Respondent did not appear.
Counsel for the Second Respondent: Mr M O'Meara SC
Solicitor for the Second Respondent: Webb Henderson
BETWEEN: DISPUTE RESOLUTION ASSOCIATES PTY LTD ABN 50 090 594 451 First Applicant
MEDIATION & ARBITRATION CENTRE PTY LTD ACN 608 133 768 Second Applicant
AND: PHILIP SELTH IN A REPRESENTATIVE CAPACITY FOR THE MEMBERS OF THE AUSTRALIAN BAR ASSOCIATION First Respondent
ABA AUSTRALIAN BAR ASSOCIATION LTD ACN 605 949 148 Second Respondent
JUDGE: COLLIER J DATE OF ORDER: 17 June 2020
COLLIER J: 1 Before the Court is an application for extension of time and leave to appeal from the decision of Minus v Selth (No 2) [2017] FCA 1233 of 18 October 2017 (Extension Application), filed on 9 August 2018. Should the applicants be granted an extension of time, they seek leave to appeal from the interlocutory decision of the primary Judge to dismiss an application for an extension of time in which the applicants could object to a costs estimate issued pursuant to r 40.20 of the Federal Court Rules 2011 (Cth) (the Rules). The costs estimate related to the dismissal of another application by the applicants to extend the time in which they could appeal from the decision in Selth v Australasian Barrister Chambers Pty Limited (2015) 243 FCR 423; [2015] FCA 1494.
background 2 On 8 December 2015, the respondents in Federal Court proceeding NSD 975 of 2014, being Australasian Barrister Chambers Pty Ltd, Mr Derek Minus, Dispute Resolution Associates Pty Ltd (which is the first applicant in this proceeding) and AUSTBAR Pty Ltd (which I understand from the identical ACN number is the current second applicant) (Minus parties) filed an application seeking orders for standard discovery against the current respondents in this proceeding (current respondents). 3 On 22 December 2015, Greenwood J delivered judgment in Selth v Australasian Barrister Chambers Pty Limited (2015) 243 FCR 423; [2015] FCA 1494, dismissing the application for standard discovery filed 8 December 2015. 4 On 27 June 2016, the Minus parties filed an application for an extension of time and leave to appeal from, amongst other things, the decision of Greenwood J in Selth v Australasian Barrister Chambers Pty Limited (2015) 243 FCR 423; [2015] FCA 1494. Kenny J heard that application on 21 July 2016 (Appeal Proceeding). On 22 July 2016, Kenny J delivered judgment in Minus v Selth [2016] FCA 834 and made the following orders: 1. The application dated 27 June 2016 be dismissed. 2. Unless a party notifies in writing the Court by 4:00pm on Monday 25 July 2016, indicating opposition to this order as to costs, the first, second and third applicants pay the respondents costs of the application, such costs to be taxed in default of agreement. 5 So far as I can ascertain, the Minus parties did not notify the Court in writing indicating opposition to the costs order of Kenny J pursuant to Order 2 of 22 July 2016. 6 On 31 August 2016, the current respondents filed a bill of costs in the Appeal Proceeding (Bill of Costs) in accordance with r 40.18 of the Rules. That rule provides: Contents of bill A bill, other than a short form bill, must be in accordance with Form 127 and must: (a) contain particulars of: (i) the work done by the lawyer, their staff and agents; and (ii) the costs claimed for the work; and (iii) disbursements incurred; and (b) have attached to it, or be accompanied by, a copy of the receipt for each disbursement or, if not paid, a copy of the relevant accounts. Note When a bill is filed, the Registrar will fix a time and date for the taxing officer to make an estimate of the bill under rule 40.20 and endorse those details on the bill. 7 In a letter dated 23 January 2017, Deputy District Registrar Ng wrote to the parties pursuant to rule 40.20(3) of the Rules, notifying them that the respondents' costs in the Appeal Proceedings were estimated to be $28,308.31 (Costs Estimate). 8 Rule 40.20 of the Rules provides: Estimate of costs (1) Before a bill is taxed, a taxing officer is to make an estimate of the approximate total for which, if the bill were taxed, the certificate of taxation would be likely to issue. (2) The estimate in subrule (1) is to be made in the absence of the parties and without making any determination on the individual items in the bill. (3) The taxing officer will give notice, in writing, to each party interested in the bill, of the estimate made under subrule (1) (the notice of estimate ). (4) Unless a party interested in the bill objects to the estimate in accordance with rule 40.21, the amount of the estimate is the amount for which the certificate of taxation will be issued. Note Certificate of taxation is defined in the Dictionary. See also rule 40.32. 9 I understand that the solicitors for the respondents, Webb Henderson, received the Costs Estimate on 23 January 2017. 10 I further understand that: Mr Minus maintained chambers at Suite 602, 67 Castlereagh Street, Sydney; Mr Minus' chambers were the specified address for service for the Minus parties; a corporate entity owned the offices at which Mr Minus' chambers were located; and on 6 December 2016, a Mr Sampson of BPS Recovery was appointed as receiver to property of that corporate entity by order of the Supreme Court of New South Wales. 11 Mr Minus deposed before the primary Judge that he received the Costs Estimate by express mail from the receiver on 15 February 2017. 12 Rule 40.21 of the Rules provides: Objection to estimate (1) A party interested in the bill who wants to object to the estimate must, within 21 days after the issue of the notice of estimate: (a) file a notice of objection, in accordance with Form 128; and (b) pay into the Litigants' Fund an amount of $2 000 as security for the costs of any taxation of the bill. (2) On receipt of the notice of objection and the payment in paragraph (1)(b), the Registrar may direct: (a) the parties to attend before a designated Registrar for a confidential conference to: (i) identify the real issues in dispute; and (ii) reach a resolution of the dispute; or (b) a provisional taxation; or (c) that the taxation of the bill proceed. 13 The period of 21 days by which the Minus parties were allowed to object to the Costs Estimate expired on 13 February 2017. The Minus parties did not make an objection to the Costs Estimate by that date. The Costs Estimate was then certified pursuant to r 40.20 of the Rules as stated in a certificate of taxation dated 15 February 2020 (Certificate of Taxation). 14 On 22 February 2017 at 8.30 am, Mr Minus emailed Deputy District Registrar Ng relevantly as follows: I only received your letter dated 23 January 2017 advising actions required in relation to this matter, late last week and immediately notified the court. I do wish to file a Notice of Objection and have the Bill taxed. Can you please advise how I request the time to do this. I was told I should file an affidavit explaining that I have not had access to my chambers since 7 December 2017. I would appreciate your advice as to what actions I should now take in relation to this matter. 15 On 22 February 2017 at 11.33 am, the solicitors for the respondents sent correspondence by email to Mr Minus, which relevantly stated: Minus & Ors v Selth & Anor - Federal Court of Australia Proceedings No. NSD 1023 of 2016 We refer to the above proceedings and the orders made by Justice Kenny on 22 July 2016 (Orders). The Orders require the first, second and third applicants to pay the respondents' costs of the application. We enclose by way of serve a sealed Certificate of Taxation which certifies that our clients' costs in accordance with the Orders are deemed to be $28,308.31 (Appeal Costs). Our clients require you to pay the full amount of the Appeal Costs by no later than 1 March 2017. (Emphasis in original.) 16 On 23 February 2017 at 3.52 pm, a legal case manager in the Federal Court emailed Mr Minus in the following terms: Registrar Ng has since considered your letter. If you are unable to obtain the consent of the Respondents to file your Notice of Objection out of time, the Registrar will make the following Orders in chambers: 1. Dispense with the requirement for the Applicant to file an Interlocutory Application. 2. On or before 1 March 2017 by 4 pm, the Applicant to file an Affidavit outlining the basis why the Notice of Objection should be allowed to be filed out of time; 3. On or before 15 March 2017 by 4 pm, the Respondents to file any Affidavit and/or written submissions in reply if there is any opposition to what is sought by the Applicant in Order 2. The Registrar will then consider the documents in chambers and make a decision on the papers. 17 On 1 March 2017, Mr Minus swore an affidavit (1 March Affidavit). On the same day, Mr Minus emailed this affidavit to the legal case manager, stating in the email as follows: I am responding to orders made by Registrar Ng. I have noted the Respondents objection and stated position. I have therefore provided an affidavit as requested by the Registrar for his consideration. 18 On 15 March 2017, the respondents emailed submissions to the legal case manager. 19 On 6 June 2017, Mr Minus emailed the legal case manager as follows: I have heard nothing further since this email to which I sent my submissions as to what was the decision of the Registrar. Can you please advise as I have had no written communication. 20 On 20 June 2017, the legal case manager responded as follows: I refer to this matter where Mr Minus has filed an Affidavit seeking leave to extend the time to object to the Estimate considered by Registrar Ng, and where a Certificate of Taxation has since issued. The Respondents object to this course. In circumstances where a Certificate of Taxation has issued, the matter will be referred to a Judge to consider. The parties will be notified in due course. 21 Notwithstanding the statement of the legal case manager concerning the "filing" of the 1 March Affidavit, that affidavit was not actually filed until 27 June 2017. The submissions of the respondents provided to the Registry on 15 March 2017 were filed on 14 June 2017, at the request of the legal case manager. 22 On 8 August 2017, the legal case manager sent the following email to the parties: Please be advised that the matter is now listed for hearing via VCF (to Brisbane and Sydney) of the interlocutory application at NB 11am on Thursday 10 August 2017. His Honour does not require a formal application and is content for any application to be made on the day. However, Justice Logan have [sic] made the following orders and [sic] will be available on the Commonwealth Courts Portal shortly: 1. Each party is to file and serve a written outline of submissions of not more than ten pages by close of business no later than Tuesday, 8 August 2017. 2. If either party is of the view that a document already filed and served in the proceeding sufficiently states that party's submissions, it will be sufficient compliance with Order 1 if a document stating this is filed in accordance with the Order. 23 On 10 August 2017, the parties appeared before the primary Judge. The hearing of that date was adjourned by the primary Judge to 18 August 2017 on the oral application of Mr Minus, for the reason that the Minus parties did not have sufficient time to prepare for the hearing. 24 When the proceedings resumed before the primary Judge on 18 August 2017, Mr Minus sought a further adjournment of the hearing. That adjournment was granted on the basis that the matter would be dealt with upon written submissions by the parties, which the primary Judge directed the parties to file. 25 The Minus parties filed their written submissions on 11 September 2017. The respondents filed their written submissions on 22 September 2017. On 18 October 2017, the primary Judge dismissed the proceedings, for reasons to which I will turn shortly. 26 Following the decision of the primary Judge the following occurred: On 28 November 2017, the Official Receiver issued bankruptcy notice no. 218612 to Mr Minus in respect of the Certificate of Taxation and interest, which amounted to $29,907.92 (the Debt). On 14 February 2018, the respondents filed a creditors' petition in the Federal Circuit Court of Australia in proceeding SYG 382 of 2018 in relation to the Debt. On 22 March 2018, prior to the hearing of the creditors' petition, Mr Minus informed the respondents that he had made full payment of the Debt. The hearing of the respondents' creditors' petition was adjourned to 26 March 2018. On 26 March 2018, District Registrar Wall dismissed the creditors' petition, later ordering costs in favour of the respondents. Mr Minus made an application for review of those costs on 12 June 2018, which was determined on 18 October 2018 by Judge Cameron. 27 I note these background facts, as Mr Minus refers to them as relevant to the delay in seeking leave to appeal from his Honour's decision.
the proceedings before the primary judge 28 The Minus parties remained the applicants before the primary Judge.
10 August 2017 hearing 29 The hearing of 10 August 2017 was by video conference. At that hearing, Mr Minus submitted that the parties had only received notification of the hearing before the primary Judge on 8 August 2017, and had been required to file submissions that same day. Accordingly, Mr Minus sought an adjournment of the hearing on behalf of the Minus parties, noting that, although he was a legal practitioner, he was acting in a self-represented capacity and was not employed to devote his full time to the matter. The respondents opposed the adjournment on the grounds that material was prepared in March 2017 and the matter was a simple application of practice and procedure. 30 The primary Judge noted that no formal application or notice of motion seeking an extension of time in which to object to the Costs Estimate had been filed by the Minus parties. Relevantly, the following exchange then took place: HIS HONOUR: All right. Well, I better hear from the respondent about whether it's opposed. MR MINUS: Thank you, your Honour. MR O'MEARA: Your Honour, the application for adjournment is opposed. This matter has not, with respect to the applicant, emerged merely in the last 48 hours. It commenced on 1 March this year with an affidavit by Mr Minus, in which he sought an opportunity to indicate his objection to a certificate of taxation of costs. That was followed up with some submissions by my instructing solicitors of 15 March 2017. The application does have, therefore, a considerable history. It is, as your Honour observed, a simple application, a matter of practice and procedure which, in my submission, could be competently dealt with within the --- HIS HONOUR: It was originally filed in March this year, the application --- MR O'MEARA: The affidavit. Yes. HIS HONOUR: --- or at least there's an affidavit filed then. The --- MR O'MEARA: I'm so sorry. The affidavit I'm looking at is dated or sworn 1 March 2017. HIS HONOUR: Yes. MR O'MEARA: It was filed with the court on 26 June 2017. I can't explain to your Honour the discrepancy of the dates there, but --- HIS HONOUR: All right. So it's filed on 27 June. MR O'MEARA: But it certainly was sworn on 1 March 2017, which is the critical matter in terms of how long this application has been around. So my friend has been - Mr Minus has been formulating this application for some little time, and he should been [sic] able to deal with it today, and, in my submission, it should be dealt with today. HIS HONOUR: Is there any application at all by the applicant in writing? MR O'MEARA: There's no formal process in writing, as far as I'm aware, your Honour. What there is, is an affidavit by the applicant requesting an opportunity to indicate his objection to a --- HIS HONOUR: Yes. MR O'MEARA: --- certificate of taxation. HIS HONOUR: What I was calling 27 June was the - that looks to be the application that came before Kenny J last year and then --- MR O'MEARA: Yes. Yes. And then it was dealt with by her Honour --- on the - it came before her Honour on 21 June 2016 and was dealt with by her Honour in a judgment on 22 June 2016. Her Honour made a costs order. It was that costs order which was subsequently the subject of a certificate of taxation, and it is that costs order and that certificate of taxation which the applicant seeks to object to --- HIS HONOUR: Yes. MR O'MEARA: --- out of time, and that's the subject of his affidavit of 26 June twenty - sorry. The affidavit is sworn 1 March 2017, but it appears to have been filed with the court on 26 June 2017. HIS HONOUR: What I'm curious about is, in terms of filed documents, I can see the certificate of taxation, which was issued by the registrar on 15 February this year --- MR O'MEARA: Yes HIS HONOUR: --- and I can see an affidavit from Mr Minus which was filed in June, although it is dated 1 March. MR O'MEARA: Yes. That's the one I was referring to. HIS HONOUR: What I can't see is any originating application or any notice of motion from Mr Minus at all. MR O'MEARA: No. There is none, as far as I'm aware, your Honour. The matter has been raised by Mr Minus, I'm instructed, by emails to the registrar of the court, and it was pursuant to that which his affidavit of 1 March 2017 was provided. HIS HONOUR: Yes. It's tempting - let's just see how long it has been listed. There's a point which is raised - I'm just looking at - there's a letter - I don't know if it has gone from the registry and been copied to your solicitors, Mr O'Meara - of 27 June this - no, not this year. That was the one that came before Kenny J --- MR O'MEARA: Yes. HIS HONOUR: --- and excited, by the look of it, the point about disqualification for anyone who had ever been a member of a bar association. MR O'MEARA: Yes. I think that was the application which was dealt with by [Justice Kenny] on 21 July last year. HIS HONOUR: If I deal with this now, all that is going to happen, in addition to assuming … letter, Mr Minus - and I don't know whether I will do that yet. But if I were to do that, all that would happen is, in addition to any substantive ground of appeal, there would be an asserted denial of procedural fairness. It has just got that spelt all over it. It reeks of it. So there's a couple of choices. One is just go head and deal with it, including dealing with the adjournment application. The other is to knock any merit in the adjournment application on the head by granting it, reserving the costs and, if I form the view after hearing the application on a later date, ie, next week that there was never any substance in it in terms of forensic difficulty, well, then I will just be amenable to awarding costs of today, as well as the costs of the adjourned date in the event that the application is dismissed. It may not be, of course, in which case I will have to consider the reverse proposition. So it's one of those - some might call it an old bull, young bull dilemma. How are you placed next week? (Transcript pp 5-7.) 31 Relevantly, the following exchange then took place: MR MINUS: Your Honour --- HIS HONOUR: I think I've got some time in Brisbane I can offer. MR MINUS: Your Honour, might I assist the court before you proceed further? HIS HONOUR: Eventually, you can, yes, but not right at the moment, Mr Minus. MR O'MEARA: I think I would have availability on my - my personal availability on late Thursday or Friday next week, your Honour, or Wednesday as well, So I'm just thinking on my feet. And would your Honour be content to do it by video link, or would your Honour require an attendance in Brisbane? HIS HONOUR: Friday? MR O'MEARA: Friday. HIS HONOUR: 18th? MR O'MEARA: Yes, that's suitable for me. Would your Honour be content by video link or --- HIS HONOUR: Sorry? MR O'MEARA: Would your Honour be content do to it by video link so my appearance could be via video link, or would your Honour require a --- HIS HONOUR: I can't hear you. MR O'MEARA: I'm so sorry. Would your Honour require an attendance in Brisbane, or would your Honour be content to do it by video link? HIS HONOUR: I would be content, or at least resigned to it. MR O'MEARA: Your Honour pleases. 18th is suitable for us. HIS HONOUR: All right. Well there we are Mr Minus. 18 August. (Transcript p 7.) 32 Mr Minus then submitted that he sought to assist the primary Judge with some of the questions his Honour had asked, because the matter was not filed, much less ready (transcript p 7-8). The following exchange then occurred: MR MINUS: …Your Honour, I missed the opportunity of making an application for the matter to be taxed by two days. It was hardly a long delay. I immediately contacted the registrar and spoke to Registrar Ng, I believe, and I was asked to file an affidavit, which I did on 1 March. That is why the affidavit is dated 1 March. From that period of time, nothing happened. Nothing until 6 June. HIS HONOUR: Well, the application --- MR MINUS: I - it --- HIS HONOUR: The respondent is not taking any point, Mr Minus, about --- MR MINUS: I think --- HIS HONOUR: --- the absence of a written application, and you can rest assured that I'm quite prepared, particularly given that stance, to deem there to be an oral application. It looks from the respondent's written submissions as if the respondent is under no illusion as to the nature of your application. So in the words of a former premier in Queensland, "Don't you worry about that". MR MINUS: As your Honour mentioned quite rightly, he was a former premier and I think that slogan of his was part of the reason that he was cast out. Your Honour, I do need to alert your Honour to the fact that some of the information that my learned friends provided may not be entirely accurate and I would like to correct the record in that respect. I mentioned to you that this matter was last dealt with when I provided a - last dealt with by me, or first dealt with by me when I provided an affidavit by email to the registrar, as requested by the associate to the registrar. Nothing happened with it until I, on 6 June, wrote to the registrar - or the associate for the registrar - and said, "I've heard nothing further since I sent my submissions on this matter. Can you please advise what has happened." HIS HONOUR: Yes. MR MINUS: That was followed three days later --- HIS HONOUR: Mr Minus, that's fascinating as a matter of history. MR MINUS: Yes. HIS HONOUR: Just fascinating. And there are many reasons why nothing may have happened, at least one of which is you didn't file a notice of motion. But, truly, life is too short to get excited about that history, however fascinating it may be. Suffice to say, there is at least what I'm prepared to deem to be an application in light of the respondent's position and I'm going to hear it on 18 August now. MR MINUS: Thank you, your Honour. I am unable to attend on 18 August because on that day I am the lecturer at the Sydney University Law School where I'm teaching a class of some 28 law students --- HIS HONOUR: Well, I suggest you --- MR MINUS: --- for the day. HIS HONOUR: I suggest you find some cover for that date. MR MINUS: Your Honour, I am unable --- HIS HONOUR: It's the --- MR MINUS: I am unable to do so. I am employed to lecture. I have a class of international and Australian students. I am not able to find cover. I am the only lecturer in that subject at the law school. I am teaching a 10 week semester. I teach every Friday and I began that teaching last week. HIS HONOUR: Mr Minus --- MR MINUS: Tomorrow is my second lecture. HIS HONOUR: --- do you teach all day? MR MINUS: My lecture runs from 10am to 2pm every Friday. HIS HONOUR: From when? MR MINUS: 10 - 10am in the morning to 2 pm in the afternoon. HIS HONOUR: Right. It's on at 3 pm. MR MINUS: Your Honour, I will need more than one hour to get from the university campus to this law building. HIS HONOUR: How long do you need? MR MINUS: I would need more time than that. By the time I leave the lecture and come down here and get into this building would be at least an hour and a half, and I would request two to 4 o'clock. HIS HONOUR: Is this the University of Technology Sydney? MR MINUS: It's the University of Sydney on the Camperdown campus. HIS HONOUR: Not the main campus? MR MINUS: The main campus, not the law school building across the road - the main campus of the Sydney University, the new law school building. HIS HONOUR: An hour to get to the law courts? MR MINUS: Yes, your Honour, it's true because the traffic coming down that highway is very congested. The New South Wales Council - City Council is digging up the roadways and all the buses get diverted. So it can take a considerable amount of time to get here. I do not want to set a time that I will be embarrassed to not attend. So I want to alert your Honour to the problem now. But, your Honour, I can't even --- HIS HONOUR: 3.30, Mr Minus. Be there MR MINUS: My - no, no, your Honour. I wish to --- HIS HONOUR: Mr Minus, 3.30. Be there or be spare. That's the date and time of the hearing. MR MINUS: Your Honour, I need further time to deal with this matter. Your Honour --- HIS HONOUR: No, you're not getting it. MR MINUS: You're Honour --- HIS HONOUR: It's 3.30. MR MINUS: You're Honour --- HIS HONOUR: The other directions I make today - don't talk over me, mister, or you will have a trip to the cells. The other direction I make is that the applicant file and serve such submissions in writing, if any, no more than 10 pages not later than Wednesday, 16 August . The hearing of the application is adjourned to Friday, 18 August at 3.30 pm, video link appearances permitted. MR MINUS: Your Honour, I want to make my final --- HIS HONOUR: Adjourn now, please. MR MINUS --- application that I'm unable to deal with it at that time. HIS HONOUR: Adjourn now, please. (Transcript pp 8-10.) 33 After the hearing of 10 August 2017, Mr Minus wrote to the Chambers of his Honour. I note that this letter was subsequently marked for identification at the hearing of 18 August 2017, and an extract of the letter was subsequently marked as an Exhibit. In that letter, Mr Minus, in summary: Referred to the hiatus of "a period of over 5 months" since he had sent the Federal Court Registry his 1 March Affidavit; Referred to the ordered resumption of the hearing on 18 August 2017; Stated that there were no urgent considerations infecting the matter; Noted that he appeared as a litigant in person; Stated that the time frame set for his submissions, "without hearing me on the matter", penalised him and denied him the opportunity to fairly make his case; Set out in detail his plans to participate in a wilderness hike in Kosciusko National Park from 11 August 2017 until 16 August 2017; and Indicated his intention of making an application for adjournment when Court resumed on 18 August 2017. 34 The letter concluded: I apologise for sending this material to Your Honour now and in this manner but I was unsure of my ability to communicate it from the "cells" that Your Honour threatened to send me to, if I persisted with my application today.
18 August 2017 hearing 35 When the matter resumed on 18 August 2017 by video conference, his Honour noted that the Minus parties had not filed any written submissions. His Honour then asked whether there were any particular submissions Mr Minus wanted to make to the Court orally. 36 Mr Minus submitted that he wished to make an oral application for an adjournment for three weeks on behalf of the Minus parties to allow him to properly prepare for the matter. His Honour asked Mr Minus to identify the material upon which he was relying, and Mr Minus referred to his 10 August 2017 letter, sent to both the associate to the primary Judge and the solicitors for the respondents. Mr Minus continued: MR MINUS: Your Honour, I would ask that the letter simply be an indication of the evidence that I would give to you as the basis for an adjournment of three weeks to allow me to properly prepare this matter. (Transcript p 2 ll 38-40.) 37 The primary Judge observed that it was the practice of the Federal Court to require affidavits to be filed in such matters. However, Mr Minus submitted that he sought to give oral evidence under oath referable to his application for adjournment. 38 The respondents opposed the application for adjournment, but did not oppose the prospect of Mr Minus giving oral evidence in support of the adjournment application. The primary Judge observed: HIS HONOUR: All right. Well, Mr Minus, in light of that, the best course then - and its difficult for litigants in person but you, at least, have the advantage of legal training and a professional admission. The course then is for you to leave where you presently are - I think there's a court officer in the room down there. COURT OFFICER: Yes, your Honour. HIS HONOUR: All right. That's gratefully heard. And it's for you, then, Mr Minus, to make oath or affirmation according to your conscience and give your evidence-in-chief from the witness box and then to remain there pending such cross-examination, if any, as may be undertaken on behalf of the respondent and then before you go from the witness box, I will give you an opportunity to give evidence in reply. (Transcript p 3.) 39 Mr Minus then gave oral evidence in support of his oral application for an adjournment, in summary, as follows: Until the email of 8 August 2017, there was no notification that the matter would be called on or that any preparation was required; Mr Minus had tried to indicate on 10 August 2017 that he would have difficulty in preparing the matter for 18 August 2017; From 8 pm on Friday, 11 August 2017, Mr Minus travelled to the Kosciuszko National Park as part of a New Zealand Alpine Club event, involving ice climbing activities above Blue Lake; Mr Minus did not arrive back until late, approximately 11 pm, Tuesday, 15 August 2017; The trip had been organised months previously; and There were no particular issues that called for the matter to be dealt with urgently. 40 Mr O'Meara for the respondents then cross-examined Mr Minus. During that cross-examination, Mr Minus gave evidence to the effect that: He had been a practising barrister for 25 years, though he had not actively practiced for many years. Most of his practice in the previous 15 years had been as an arbitrator and a mediator; He had experience in the preparation and presentation of interlocutory applications; Mr Minus had commenced the application to challenge the Certificate of Taxation by the 1 March Affidavit. His attendance at the New Zealand Alpine Club event in Kosciuszko National Park was essential because he was carrying out a role which involved taking in equipment "which could have meant the difference between life and death at that time in that region" (transcript p 7 ll 26-27). After his return from Kosciuszko National Park, he was required to prepare for submissions in respect of another matter in the Supreme Court of New South Wales: (a) in which he was a litigant in person in defamation proceedings; (b) but in respect of which a show cause application had been filed by the respondent to that application; and (c) which was heard by the Supreme Court of New South Wales on 17 August 2017. 41 Materially during the cross-examination of Mr Minus, the following exchange took place between Counsel for the respondents and Mr Minus: Well, this is not a matter of importance, Mr Minus ..... ?---They are both matters of importance, Mr O'Meara. As you've noted, I've been - I submitted a - an affidavit on 1 March in relation to this matter. But in - in submitting that application - well, I withdraw that. There has never really been a formal application in this matter. As you're aware, I contacted the registrar - that's in my affidavit. The registrar suggested I put in an affidavit explaining the situation. The matter was in abeyance for a number of weeks or months. The registrar was supposed to deal with it in chambers. Then it was advised that the registrar couldn't deal with it in chambers, I think, possibly on the basis of objections by the - the respondents. And then there was some indication that it was going to go to a judge and after that there was no indication whatsoever. I think you've strayed somewhat from my question, Mr Minus, but let me put this proposition to you: there has been ample opportunity for you, even in the time when you returned from your walk, to prepare this application and that - that time would have been ample for any barrister of modest competence. What do you say to that?---Mr O'Meara, I had to provide submissions to the Supreme Court which I did yesterday and attend a hearing at 2 pm yesterday. I have not had time to prepare this matter. I disagree with your suggestion and I also disagree that this matter should be dealt with with this sort of an urgency. There is no basis - this is not a matter that has been hanging over my head, as it were, for months. This is a matter that was called on a week ago with a day's notice. It's totally unreasonable, I believe, that this matter should be dealt with in this fashion, or that the respondents should be even objecting to it. There's simply no basis. Mr Minus, let me put this proposition to you: these are mere time wasting tactics in an attempt to frustrate the enforcement of a costs order against you. That's true, isn't it?---Absolutely incorrect. I've asked for three weeks to properly deal with this matter. The matter has been in the court, in the registry for five months. It was I who made the request to the registry, not the respondents. I made the request to the registry about what was happening with it, and it was as a result of my request that the matter was brought on. But it has never been brought on in a - in a proper fashion where I've been given notice, and, with great respect to his Honour, to provide one day's notice to provide detailed submissions is simply inadequate. Now, you're resourced to do it. The respondents are resourced to do it. I'm not. And there's no reason why I shouldn't be allowed a period of a few weeks. It's not a matter of delay. (Transcript p 9.) 42 Following this, the following exchange took place between his Honour and Mr Minus: HIS HONOUR: Any evidence in reply arising from matters of fact in cross- examination, Mr Minus?---Thank you, your Honour. Your Honour, it has been put to me that this is a mere matter of delay and that I'm trying to prevent an order. As the affidavit I put in evidence to the court on 1 March states, I was unaware and could not have been aware at the time. I immediately tried to deal with the matter. I filed an - I sent an affidavit to the registrar as requested. In that intervening period, there has been no further requests of me to do anything in particular about it until your Honour called the matter on on 8 August. I attended the court. I tried to put before your Honour at the last hearing my circumstances in having to be away this weekend. I try to alert your Honour and the respondents at the earliest opportunity so that the court's resources weren't wasted. I am only seeking a short period of time. I believe I should be allowed that period of time. In relation to Mr O'Meara's suggestions that I am simply trying to avoid the imposition of these orders, well, yes, I am, but I'm trying to do it in a proper manner. The issue at stake is should I be allowed to have these orders - that were made by default, as it were, because I did not have the opportunity to contest them within the period - for taxation to be allowed. It's a very simple matter. There seems to be no point in the - the time and the money that's being wasted in this. MR O'MEARA: Your Honour, Mr Minus has strayed well beyond --- HIS HONOUR: I think that's --- MR O'MEARA: --- anything that might be evidence and fact in reply. HIS HONOUR: - - - the end of the evidence in reply; is that right?---Well, I will just say this last thing, your Honour, if I may. It has been suggested to me that there was no need for me to go on a trip. My evidence is that this was a trip that was organised by a group of people way in advance of this matter being brought on, that the organisation of that trip of a large number of people who had various levels of experience became more significant because of the events of snowfalls in that area. I provided, as an attachment to that letter, information about the high avalanche danger which most people in this country who have any experience of the snow would find surprising in this country. We were moving into an area of high snowfall and therefore high avalanche danger. I believed it was a matter of importance for me to attend. I tried to alert the court and the respondents to that, and that information is correct. Well, you've made reference in that response to - quote - "that letter" - unquote. What's to become of that letter in light of that? Are you seeking to verify it under oath and, for that purpose, have it marked as an exhibit?---Yes, I would seek that, your Honour, to the extent that it's a letter that was made - that was written prior to my appearance here today and therefore where there's a variation between what I - in that letter about the date I would return, I said it would be sometime on Wednesday, and the evidence I've given today, which was sometime late on Tuesday - the evidence I've given today being - - - All right?--- - - - after the writing the letter should be - - - All right?--- - - - accepted as the accurate day. I will deal with the procedural formalities of marking it as an exhibit after you've left the witness box. Anything else in reply?---No. Thank you, your Honour. All right. Well, you can leave the witness box, then. Take - - -?---Thank you. - - - that electronic diary record with you, and back to the bar table. (Transcript pp 10-11.) 43 It is useful to set out the exchange that followed Mr Minus' evidence: HIS HONOUR: Now --- MR MINUS: Your Honour, may I also --- HIS HONOUR: The long and the short --- MR MINUS: Your Honour, may I --- HIS HONOUR: Yes. The long and short --- MR MINUS: Sorry. HIS HONOUR: --- of it, Mr Minus, is a submission by you that there were particular intervening circumstances which, while they did not oblige you as a matter of law to be elsewhere in a way that intruded on your preparation time, there was an element of practical necessity which did intrude and which ought to sound in why some further adjournment should be allowed. MR MINUS: That's correct, your Honour. May I just ask your Honour in terms of marking the exhibits, that you also include the attachment which was the main range recent observations of 9 August regarding snow stability. HIS HONOUR: I'm just going to put this proposition to you, and that is to - first to you and then to Mr O'Meara, and it's, in effect, to cut to the chase based on pragmatic grounds, even if there is an element of indulgence in this. It's unlikely, because of commitments interstate and overseas and then leave, that I could come now to preparing a judgment at the earliest before October. That foreknowledge was a great motivator in wanting to deal with this earlier. Pardon me. But in the events that have transpired, the thought that occurs to me is a pragmatic one. Even if there is an element of indulgence, if I allowed you three weeks, I just have a feeling it's not going to make any different to when either party gets their judgment. That being so, pragmatism as well as an abundance of caution is telling me grant Mr Minus an adjournment and reserve the costs. But the adjournment would be on this basis: that it's otherwise to be dealt with by written submissions - this case - and allowing you three weeks to put those in, Mr Minus, and then allowing the respondents a particular time - and I'm open to submissions about that - to put in a written submission in reply with judgment then being reserved and dealt with then by me on the basis of the written submissions and subject to some particular propositions I want to raise with each of you to alert you as a matter of procedural fairness, with judgment being reserved and then handed down on a date to be fixed. Anything you want to put about that, Mr Minus? MR MINUS: Your Honour, that sounds acceptable to me, subject to the timeframes that your Honour would allow. HIS HONOUR: All right. Now, however vexing that might appear at first blush for the respondents, anything you want to put about that? MR O'MEARA: I don't think, regrettably, there is, your Honour. I think that is the unfortunate pragmatic path forward, if your Honour pleases. HIS HONOUR: Yes. Now, this is what particularly I wanted to make sure. It's particularly for your benefit, Mr Minus, and it arises from the affidavit which you filed initially. So it's the affidavit which was filed on 26 June 2017 but made by you on 1 March 2017. And in paragraph 12, the statement is made - an explanatory statement: The Federal Court has not provided any alternate means of notification such as email such that I could be properly alerted to the need to provide a response within the required timeframe. Quote, unquote. I would be assisted in written submissions by the particularising of which provision, if any, in the Federal Court Rules oblige the court to provide an alternate means of notification. In that regard, I would also be assisted by a submission as to whether, in respect of this particular court proceeding - in other words, NSD1023 of 2016 - the address for service of the applicants ever varied from that set out in the application for extension of time and leave to appeal, namely the address for service set out against that title in the footer on page 1 of the application for extension of time and leave to appeal, that address being Mediation & Arbitration Chambers, 6th floor, 67 Castlereagh Street, Sydney, New South Wales, 2000. So it would also be of assistance to me to have my attention drawn to whether there is any filed document which changes that as the address for service prior to the registrar sending the certificate, a challenge to which is of present moment. There are also references, I think, in the respondents' existing written submission to past instances of a need for indulgence or seeking extension of time on your part, Mr Minus, and it's of use to me that any submission in writing you make engage with that and then there look to be, apart from what one might term the issues going to whether the registrar sent the certificate to the address for service of the applicants, a separate question about whether that certificate, in the events which have transpired, stands as a judgment of the court such that - which has been entered such that it can only be the subject of challenge on the grounds asserted by the respondents. I don't mean that to be an exhaustive statement, but I did want to alert you, Mr Minus, in particular, just to issues which seemed to emerge to me from looking, firstly, at the respondents' written submission and then, secondly, at the affidavit which you made on 1 March. And, truly, I don't wish to be prescriptive or, for that matter, in respect of a practitioner, condescending - just to highlight - - - MR MINUS: Your Honour, I do thank you for those observations. HIS HONOUR: So I'm not particularly minded to set - to leave unlimited the page length, so I had in mind no more than 10 pages both for the written submissions of the applicants and the reply submission for the respondents. Anything you want to put about that, Mr Minus? MR MINUS: No, your Honour. HIS HONOUR: All right. What about you, Mr O'Meara. MR O'MEARA: No, your Honour. I think the outstanding question was the period of time for our response, and, in that connection, I don't think we would need more than two weeks. 44 After hearing the evidence and submissions, the primary Judge made the following Orders: 1. The Applicants are to file and serve their written submissions of not more than ten (10) pages, no later than 8 September 2017. 2. The Respondents are to file and serve any submissions in reply of not more than ten (10) pages on or before Friday 22 September 2017. 3. To the extent that these Directions are at variance with the Directions earlier given, these Directions vary those earlier directions and take precedence. 4. Upon the filing of the Respondents submissions in reply or a signification by the Respondents to the Registrar and Applicants in writing that no such submissions are to be filed, judgment shall stand reserved to a date to be fixed in respect of the extension of time application. 5. Liberty to apply. 6. Costs reserved.
The primary decision 45 On 18 October 2017, the primary Judge dismissed the Minus parties' application for an extension of time in which to object to the Certificate of Taxation, delivering reasons in Minus v Selth (No 2) [2017] FCA 1233. 46 His Honour noted at [17] that "there seems to have been something of a conundrum emerge within the Registry as to how to deal with Mr Minus' application" to extend the time to object to the Costs Estimate. His Honour continued: 17. … it was decided that the judge concerned ought not to be one assigned to the Court's New South Wales Registry. That decision was made out of an abundance of caution, given Mr Selth's hitherto longstanding other role as the Chief Executive of the New South Wales Bar Association and because Mr Minus was a member of the New South Wales Bar. So it was that the application came to be assigned to me for determination. 47 Hs Honour went on: 18. Given the hiatus, I considered that the hearing of the application for an extension of time within which to file a notice of objection ought to be expedited. It is fair to say that the degree of expedition initially nonplussed Mr Minus but it proved possible to ameliorate that by an adjournment and provision for the making of supplementary written submissions to be filed and served during a looming period of duty in Papua New Guinea and subsequent leave. 48 In relation to the delay of the Minus parties in objecting to the Costs Estimate, the primary Judge made the following relevant factual findings: The address of the Minus' chambers, being suite 602, 67 Castlereagh Street, Sydney NSW 2000, was the address for service for the Minus parties as at 6 December 2016 and 23 January 2017 (at [22], [25] and [28]); Mr David Henry Sampson of BPS Recovery was appointed as receiver to the property of the corporate entity that owned the offices where Mr Minus maintained his chambers (at [22]); Mr Sampson changed the locks of those offices on 7 December 2016, preventing Mr Minus from accessing his chambers (at [22]); Mr Minus did not explain why, as and from 6 December 2016, he was unaware of the appointment of receiver to the building where his chambers were maintained, or unaware he could no longer access his chambers. In particular, his Honour observed: 45. The address for service which the applicants had specified was, as noted, Mr Minus' chambers address. The receiver was appointed prior to the Summer Law Vacation. In the ordinary course, one might expect that a barrister would, in the ordinary course, attend his or her chambers with some regularity prior to the Summer Law Vacation. Mr Minus' affidavit is noteworthy for his absence of explanation as to how it was, on and from 6 December 2016, he was unaware, if not of the appointment of a receiver who had consequentially taken possession, at least that he could no longer access his chambers. It seems to me that his affidavit manifests an absence of candour. It is the responsibility of a party to maintain an up to date address for service (at [30]); It is not the Registrar' responsibility to provide a party an alternate address for service (at [30]); Whilst an email address was specified at the foot of the application dated 27 June 2016, it was permissible for the Registrar to send the Costs Estimate only to the party's specified address for service (at [30]); The letter of the Registrar providing the Costs Estimate was addressed to each party interested in the bill as required by r 40.20(3) of the Rules by the collective salutation "Dear Parties" and the subject title of the letter referring to the matter number and the parties in the proceeding (at [33]); The Minus parties confused the issues of when a notice was given or received in terms of r 40.20(3) of the Rules, with when a notice is issued in terms of r 40.21(1) of the Rules (at [34]); The Rules focus on the date of issue, rather than when the notice is given (at [35]); Mr Minus was a litigant in person, but was also the representative of the corporate Minus parties and a barrister of 25 years' standing (at [40]); and Mr Minus' explanation for why the notice of objection was not given in time by the Minus parties was hardly an acceptable one (at [43]). 49 His Honour, observed: 44. As the note to r 40.20 indicates would happen, after the Bill of Costs was filed on 31 August 2016, the Registrar fixed a time and date for the taxing officer to make an estimate of the Bill and endorsed those details on the Bill. The date for the taxation estimate endorsed on this Bill is "week commencing September 19th". The endorsed date then serves as a reference point as to by when the Bill of Costs must, as r 40.19 of the Federal Court Rules requires, be served on each party interested in the Bill. Given the way in which the Registrar has chosen to endorse the Bill, it had to be served at least 7 days before 19 September 2016. This aspect of costs practice was not explored either in evidence or submissions. In the absence of compliance being made controversial, I shall presume regularity. As it happened, the estimate did not issue until 23 January 2017 but the applicants must have known from about mid-September that it could issue at any time thereafter. When it did not issue in the week commencing 19 September 2016, it became all the more important for them to make sure that their hitherto specified address for service either continued to be current or was changed accordingly. 45. The address for service which the applicants had specified was, as noted, Mr Minus' chambers address. The receiver was appointed prior to the Summer Law Vacation. In the ordinary course, one might expect that a barrister would, in the ordinary course, attend his or her chambers with some regularity prior to the Summer Law Vacation. Mr Minus' affidavit is noteworthy for his absence of explanation as to how it was, on and from 6 December 2016, he was unaware, if not of the appointment of a receiver who had consequentially taken possession, at least that he could no longer access his chambers. It seems to me that his affidavit manifests an absence of candour. 46. Mr Minus made much in the submissions which he made on his own behalf and that of the corporate applicants about a need to be afforded procedural fairness in relation to the fixing of the amount of the costs liability. But the Rules provide, via the procedure for the giving of a notice of objection, for an interested party to be afforded an opportunity to be heard prior to the fixing of the amount of a costs liability. The existence of an opportunity to be heard is one thing, a failure by unacceptably explained inadvertence to put oneself in a position of taking up an opportunity is quite another. 47. Even allowing for this, an extension might nonetheless be warranted if it could be seen that there was an arguable case that, on any view, the amount of the estimate was manifestly unreasonable or that there was some other basis upon which it was arguable that the amount of the estimate would likely be reduced by other than a trifling sum following objection… 50 The primary Judge then turned to the question Minus parties had made out an arguable case, and relevantly found: 48. In formulating the amount of the estimate relative to the amount specified in the Bill of Costs, the taxing officer necessarily formed a view that the latter significantly overstated an amount reasonably to allow on a party and party basis. The applicants have completely failed to detail why it is that it is arguable that the amount of the estimate would further be reduced upon objection. The step which would next follow after the giving of a notice of objection would be the convening by the Registrar of a confidential conference of interested parties at which an endeavour would be made to identify the real issues in dispute in relation to the Bill and to reach a resolution of that dispute: r 40.21(2)(a). The applicants have chosen to give not a hint as to what, from their perspective, those "real issues" might be. 51 His Honour concluded at [49]: The delay here is a short one. By 1 March 2017 at the latest, the respondents were well aware that the applicants wished to object to the Bill of Costs. Even so, in my view the explanation for the delay is not acceptable and it has not been shown by the applicants that there is any point, in the form of an arguable case for the granting of an extension. This is sufficient reason to dismiss the applicants' application.
extension of time and leave to appeal application 52 The applicants before me are, in essence, the Minus parties, without Australasian Barrister Chambers Pty Ltd (which was in liquidation at least at the time of the primary decision). 53 The primary decision was delivered on 18 October 2017. Approximately ten months later, on 9 August 2018, the applicants filed the Extension Application, seeking an extension of time and leave to appeal from "the judgment of [the primary Judge] of the Federal Court given on 22 December 2015 at Sydney". The decision delivered on 22 December 2015 was actually the decision of Greenwood J in Selth v Australasian Barrister Chambers Pty Limited (2015) 243 FCR 423; [2015] FCA 1494, not the decision of the primary Judge. However, the decision attached to the Extension Application, and the submissions before me, referred to the decision of the primary Judge of 18 October 2017. It appears the reference to 22 December 2015 was an error. 54 The judgment the subject of the Extension Application is clearly the decision of the primary Judge in [2017] FCA 1233. 55 The Extension Application stated that the grounds of the application "are set out in the accompanying affidavit". However, the Extension Application actually sets out 14 grounds on which the applicants rely, which substantially replicates the material in the supporting affidavit. In my view, for the purpose of determining whether extension of time and leave to appeal ought be granted, it is appropriate to focus on the grounds set out in the Extension Application, which are as follows: 1. The applicant was denied natural justice in not being allowed to object to the respondent's Bill of Costs pursuant to r 40.21 when he was only 2 days late in notifying his objection, due to valid reasons. audi alteram partem (listen to the other side) 2. The applicant was denied a fair trial due to administrative failures by the Court's administrative processes: a. Registry staff advised that the extension of time could be dealt with in chambers by a registrar and then took no action for six months; b. On prodding by the applicant the Registry advised the matter would be dealt with by a judge. 3. [The primary Judge], as the judge appointed, failed to deal with the matter as an interlocutory application requiring the filing of affidavit evidence relevant to the issues that were then live and proceeded on a single affidavit which had been filed for purely administrative purposes of the Registry more than six months earlier. 4. [The primary Judge] conducted the proceedings in a way that denied the applicant the opportunity to be properly heard: a. In demanding a "tight timeframe" for the filing of submissions "of up to 10 pages" to be filed the same day he announced he was hearing the matter, without warning or explanation; b. Setting the matter down for trial in two days, without hearing from the parties; c. Acted in a bullying and harassing manner in failing to hear the applicant (a barrister) in contravention of the principal of judicial fairness; d. Threatening in court to gaol the applicant to prevent him from properly making submissions as to the course that [the primary Judge] was adopting and in seeking time to deal with the issues fairly. nemo iudex in causa sua (no-one should be a judge in his own cause) 5. [The primary Judge] was aware of the procedural fairness issue identified by the Registry that Mr Selth, the barristers' "representative" was a former longstanding Chief Executive of the New South Wales Bar Association, which is a constituent member of the first responded and a financial member of the second respondent. 6. [The primary Judge] failed to disclose prior to conducting the proceedings, his former, present and continuing associations with the respondents: a. That he was a former barrister and QC and former financial member of the first respondent and the Queensland Bar, a constituent member of the first respondent and a financial member of the second respondent, for 23 years b. His continuing engagement with the Queensland Bar in conducting joint training sessions in Papua New Guinea, each September, which he had done for a number of years and for which he was apparently the instigator or leader; c. His desire to get the matter on for hearing quickly in mid-August for his own apparent reasons, of a "looming period of duty in Papua New Guinea and subsequent leave" ahead of the September training sessions to be held by the Queensland Bar in Papua New Guinea, again in 2017; d. That the respondents, who were collectively objecting to allowing a two day grace period due to reasonable circumstances to have their costs examined and taxed, were likely to obtain a financial gain from [the primary Judge's] decision to refuse to grant an extension. 7. [The primary Judge] failed to recuse himself from hearing the matter in circumstances where his awareness of his present association with the respondents required him to do so. 8. A fair-minded lay observer could reasonably consider that [the primary Judge's] failure to deal with the matter as an interlocutory application and require the filing of affidavit evidence relevant to the issues was due to his personal reasons for wanting to expedite the matter so not to interfere with his annual period of duty in Papua New Guinea rather than any judicial requirement of procedural fairness. 9. A fair-minded lay observer would reasonably have apprehended that [the primary Judge] would not bring an impartial mind to the case due to his behaviour and the way he conducted himself and conducted the proceedings. 10. A fair-minded lay observer would reasonably have considered that [the primary Judge] was actually biased in continuing to deal with the matter in the way he did, despite objection, by failing to disclose his associations with the two respondent organisations though his continuing involvement with the Queensland Bar which stood to gain a direct financial benefit from his decision. ratio decidendi (the rationale for the decision) 11. [The primary Judge] found that the Court had the power, given by s 37P(3)(f) of the Federal Court of Australia Act, "to waive or vary any provision of the Rules of Court in their application to the proceeding" for the granting of an extension of time but failed to exercise that power in the interests of justice. 12. [The primary Judge] noted that the respondents did not seek to cross-examine the applicant in respect of the explanatory statements he made in his affidavit and which he accepted as true. 13. [The primary Judge's] ultimate finding that the applicant had failed to offer a "credible explanation" for the delay of 2 days was not due to finding any contradiction in respect to the applicant's evidence but rather to the incompleteness of explanation. 14. The inability of the applicant to provide a fulsome explanation for the failure to collect his mail in time, was a direct result of the failure of administrative process and failure of judicial practice that led to the denial of natural justice. 56 In Mr Minus' affidavit sworn 12 June 2018 (and filed 9 August 2018), filed in support of the Extension Application, Mr Minus also gives evidence of reasons why the application for leave to appeal from the decision of the primary Judge was not filed within the time prescribed by the Rules. 57 The applicants sought the following ( under the heading "other applications"): 1. The Applicants do not wish for the matter to be heard without an oral hearing. 2. The Applicants apply for an order dispensing with compliance with rule 35.13. 3. The Applicants request that the matter of this appeal be dealt with by the Chief Justice or a judicial officer of the Federal Court who has not previously been a member of the respondent organisations or had a relationship with or support from either the Australian Bar Association and/or the New South Wales Bar Association. 4. The Applicants apply for a stay of the primary proceedings and execution of any orders made in those proceedings by [the primary Judge], until the determination of this leave to appeal. 58 I note that no draft notice of appeal complying with rr 36.01(1) and 36.01(2) of the Rules accompanied the Extension Application, as required by r 35.14 of the Rules. 59 On 27 February 2019 the respondents filed a Notice of Objection to the competency of the appeal. This Notice of Objection came before me on 14 March 2019. During that hearing Mr Minus gave the following evidence (in summary) from the Bar Table: after the filing of the Extension Application, he had become a bankrupt; as a bankrupt, he could no longer administer the affairs of the corporate applicants of which he was the sole director; his trustee in bankruptcy was unwilling to pursue the matter on his behalf; and he was attempting to obtain leave to manage the corporate applicants under s 206G of the Corporations Act 2001 (Cth). 60 In the circumstances, I determined that the following orders were appropriate: 1. To the extent that Derek Michael Minus is an applicant to this application for extension of time and leave to appeal, the application is incompetent and is dismissed. 2. The application for extension of time and leave to appeal otherwise is dismissed. 3. The Second Applicant and Third Applicant have liberty to apply to reinstate the proceedings, in the event that Derek Michael Minus is granted leave to manage the Second Applicant and Third Applicant under s 206G(1) of the Corporations Act 2001 (Cth) by 13 September 2019. 4. The Second Applicant and Third Applicant pay the costs of the Respondent incidental to the application for extension of time and leave to appeal. 5. Order 4 of these Orders be stayed until 13 September 2019. 61 On 5 September 2019, Jagot J made an order granting Mr Minus leave pursuant to s 206G of the Corporations Act 2001 (Cth) to manage the corporate applicants in these proceedings. 62 On 12 September 2019, the applicants filed an interlocutory application (Reinstatement Application) seeking the following orders: 1. That these proceedings be reinstated to the list to be heard by Justice Collier of the Federal Court. 63 On 18 October 2019, I ordered that the Reinstatement Application be listed for hearing on 17 March 2020, together with the Extension Application if the matter was reinstated. 64 That hearing of 17 March 2020 was vacated due to the COVID-19 pandemic. 65 On 13 March 2020, I ordered that the Reinstatement Application be listed for hearing on 4 June 2020, together with the Extension Application if the matter was reinstated. 66 On or about 3 May 2020, the first respondent in this proceeding, Mr Philip Selth, passed away. 67 On 23 May 2020, the respondents filed an application seeking to have the first respondent, Mr Selth, removed, and Mr Gregory Tolhurst substituted. That application was heard by me on 29 May 2020. 68 On 2 June 2020, I dismissed the application for removal and substitution of the first respondent in Dispute Resolution Associates Pty Ltd v Selth [2020] FCA 753. 69 At the hearing of the Reinstatement Application and the Extension Application on 4 June 2020, Mr Minus confirmed that he was appearing as Counsel for the applicants. There was no appearance for the first respondent. Mr O'Meara SC appeared for the second respondent. I noted at that hearing that no application had been made by the first respondent seeking to adjourn the hearing to allow the first respondent to seek representation. 70 I determined that, in the circumstances, the absence of an appearance for the first respondent should not prevent the resolution of the Reinstatement Application or the Extension Application. 71 In relation to the Reinstatement Application, I noted that Mr Minus has been appointed to manage the applicants under s 206G of the Corporations Act 2001 (Cth) by the Orders of Jagot J on 5 September 2019. The respondents opposed the Reinstatement Application on the basis that the Extension Application had no prospects of success, such that to reinstate it would be futile. 72 In circumstances where Mr Minus had been granted leave to manage the applicants, I considered that it would be an efficient and cost-effective way forward to grant the Reinstatement Application and hear the substantive arguments of both parties in relation to the Extension Application. I ordered reinstatement accordingly. 73 I now turn to the Extension Application.
submissions of the parties 74 In summary, the applicants made the following submissions: The applicants were never required to explain why, and were never afforded an opportunity to file evidence as to why, the Costs Estimate would further be reduced upon application; The inability of Mr Minus to provide a full explanation for the delay was a direct result of the failure of administrative processes in the Registry and failure of judicial practice that led to the denial of natural justice; The primary Judge expedited the matter because his Honour had planned a trip to Papua New Guinea in September 2017 for a workshop, which did not involve his duties as a Commonwealth Justice, but was a private trip undertaken as part of his annual leave and for which he was privately compensated; A fair-minded observer could reasonably consider that the primary Judge's failure to deal with the matter as an interlocutory application, and failure to require the filing of affidavit evidence relevant to the issues, were due to his personal reasons of wanting to expedite the matter so as not to interfere with his holiday period in Papua New Guinea and to prevent the applicants from receiving a fair determination of the relevant facts; The primary Judge failed to disclose his former, then-existing and continuing associations with the respondents in circumstances where he was acutely aware of the procedural fairness issues identified; The primary Judge received a direct benefit from the Queensland Bar Association by being thanked in the Queensland Bar Association President's annual report, attending complimentary dinners for his role as Chairman of a Queensland Bar Association organising committee, and by receiving invitations to Queensland Bar Association functions; It is reasonable to consider that the primary Judge could, upon retiring, or at some earlier time, expect to receive favour from any future relationship with the association from which he would benefit; A fair-minded lay observer would reasonably apprehend that the primary Judge "who regularly organised activities where he partied and favoured various former associates, might not bring an impartial mind to the resolution of the case if the outcome of the case could affect the value of that relationship and the financial results of the respondent Bar Association litigation"; The primary Judge failed to recuse himself from hearing the matter in circumstances where his connection with the Queensland Bar Association required him to do so; In both his demeanour and actions, the primary Judge favoured the respondents from the outset and demonstrated an unwillingness to even allow Mr Minus to speak, much less make submissions; A fair-minded observer would, by reason of the behaviour and conduct of the primary Judge, reasonably apprehend bias on the part of the primary Judge; The primary Judge was actually biased; The applicants were not in an immediate position to lodge an appeal within time "as they had only an inkling of what had transpired as the primary judge had only revealed in passing his motivations and made no disclosure"; and The denial of procedural fairness was of such significance that the delay of the applicants in acquiring the information to properly bring the claim should be overcome. 75 In summary, the respondents made the following submissions in relation to the Extension Application: The applicants have afforded no satisfactory explanation for a delay of approximately ten months, which was also four months subsequent to Mr Minus paying the amount outstanding in the Certificate of Taxation; The applicants' contention in ground 1, namely that the applicants were not allowed to object to the Costs Estimate, is false, as the applicants' alleged inability to do so within time was because Mr Minus was prevented from accessing the address for service, which was a matter for which the applicants bore responsibility; The applicants' ground 2, concerning the Court's administrative processes, fails to demonstrate any appellable error on the part of the primary Judge; The applicants were not denied the right to be heard before the primary Judge as they claimed in grounds 3 and 4, as the 10 August 2017 hearing and the 18 August 2017 hearing were both adjourned at the request of the applicants and they were given ample opportunity to make submissions and adduce any evidence before the primary Judge; Mr Minus has previously raised allegations of ostensible bias on the basis of a judge's prior membership of, or connection with, a State bar association, and those claims have been determined to be without merit; There was no logical connection between, on the one hand, the primary Judge's position as a former barrister and member of the Queensland Bar Association and any continuing engagement with the Queensland Bar Association by participating in training sessions, and, on the other hand, the issues in the proceedings which might reasonably have led a reasonable observer to think the primary Judge might not determine the matter impartially; His Honour's attendance in Papua New Guinea ultimately resulted in the applicants receiving a further indulgence of time to file written submissions; The manner in which the primary Judge conducted the proceedings reveals nothing which might lead a fair-minded observer to conclude that the primary Judge might not determine the matter before him on its legal and factual merits; There is nothing which could conceivably support an allegation of actual bias on the part of the primary Judge; and The applicants' grounds 11 to 14 are without merit as the applicants provided their explanation for the delay and the primary Judge found that explanation to be inadequate, not incomplete.
consideration 76 The Court has power under r 35.14 of the Rules to grant an extension of time in which to seek leave to appeal upon application. Leave to appeal is required in the circumstances because the decision of the primary Judge was interlocutory in nature. 77 As the majority of the Full Court observed in BVG17 v BVH17 (2019) 268 FCR 448; [2019] FCAFC 17: 30. In the circumstances it [sic] appropriate for the Court to briefly consider principles relevant to extension of time and leave to appeal: see for example discussion of the Full Court in SZVCP v Minister for Immigration and Border Protection [2016] FCAFC 24; (2016) 238 FCR 15 at [13]-[16] … 34. In considering whether to order an extension of time in which to file a notice of appeal, the Court is required to determine whether an order in such terms is in the interests of justice. This ordinarily requires consideration of issues including the length and explanation for the delay, the nature of the litigation, the prejudice to other parties of a grant or refusal of an extension of time, and the prospects of success of the appeal if it proceeded: see AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193; (2015) FCAFC 193 at [10]-[12]. … 45. The principles governing the grant or refusal of leave to appeal from an interlocutory judgment were explained in Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCAFC 844; (1991) 33 FCR 397 at 398-399 and recently reiterated in Nationwide News Pty Limited v Rush [2018] FCAFC 70 at [3]. The first question is whether, in all the circumstances, the interlocutory judgment is attended with sufficient doubt to warrant it being reconsidered on appeal. The second question is whether substantial injustice would result if leave were refused, supposing the interlocutory judgment to be wrong. 78 In the present proceedings, the applicants have sought an extension of time and leave to appeal in the same application, and rely on the same grounds for an extension of time and leave to appeal. There are no separate grounds on which the applicants rely for leave to appeal, to which I can have regard in considering whether an extension of time should be granted. In the absence of a draft notice of appeal accompanying the Extension Application in these proceedings, I will have regard to the grounds set out in the Extension Application. This is consistent with the reasoning of Reeves J in Smits v Loel (No 3) [2015] FCA 77 at [9] where his Honour observed: 9. The application for extension of time to file an application for leave to appeal requires consideration of the prospects of success in the application for leave to appeal, which application, in turn, requires consideration of the prospects of success in the appeal. Given this, it follows that, in practical terms, both applications engage the former question; specifically, whether the primary judge's decision is attended with sufficient doubt to warrant its being reconsidered by an appellate court: see Sharman License Holdings at [20] per Lindgren J. 79 Based upon the grounds of the Extension Application, and the submissions of the parties, the following issues require determination: (1) Whether the applicants have provided an adequate explanation for the delay in seeking leave to appeal the decision of the primary Judge. (2) Whether the decision of the primary Judge is attended with sufficient doubt to warrant it being reconsidered. In particular, whether there is merit in the claims of the applicants that: (a) They were denied procedural fairness by reason of the administration processes of the Court (ground 2). (b) They were denied procedural fairness by the conduct of the primary Judge in the proceedings (ground 3). (c) They were denied the opportunity to be heard (ground 4). (d) A fair-minded lay observer would have reasonably apprehended that the primary Judge would not bring an impartial mind to the case, or that the primary Judge was actually biased, by reason of the associations of the primary Judge with the respondents or the conduct of the proceedings (grounds 5 to 10). (e) They were unjustly denied the ability to object to the Costs Estimate out of time (grounds 1, 12, 13 and 14). (f) They were unjustly refused an order by the primary Judge pursuant to s 37P(3)(f) of the Federal Court Act (ground 11).
Issue 1: Whether the applicants have provided an adequate explanation for the delay in seeking leave to appeal the decision of the primary Judge 80 The applicants advance the following reasons to explain the delay in seeking leave to appeal the decision of the primary Judge: The primary Judge provided two days' notice of the date judgment would be delivered. Mr Minus was unable to attend Court for judgment delivery on that date, and therefore could not make an immediate oral application for leave to appeal as allowed by r 35.11(b) of the Rules. The primary Judge's associate informed Mr Minus that he would need to make a formal application when Mr Minus indicated he would seek to make an oral application in Chambers, in circumstances where Mr Minus was denied the opportunity to make an oral application for leave to appeal at judgment delivery. On 26 October 2017, Mr Minus wrote to the Principal Registrar of the Federal Court of Australia requesting his advice as to the mechanism by which this matter needed to be reviewed given the poor administrative processes (including the hiatus in the Registry and subsequent referral to a Judge), which compounded with poor judicial management to deny the applicants justice. On 26 October 2017, Mr Minus wrote to the Chief Justice to complain that the primary Judge had bullied Mr Minus and threatened to jail Mr Minus when he attempted to make submissions. As at October 2017, the applicants had no understanding of why the primary Judge was in such a hurry to deal with the matter and did not have sufficient information about the activities of the primary Judge. The Chief Justice's response on 4 December 2017, dismissing the complaint, was sent to the wrong address. On 3 December 2017, Mr Minus travelled to Nepal for a hiking expedition and did not return until 2 or 3 January 2018. Upon his return to Australia, Mr Minus was busy with work as a mediation advisor to the Federal Government. In March 2018, the respondents sought to bankrupt Mr Minus in relation to the Certificate of Taxation, and Mr Minus needed to deal with that issue promptly. The respondents made the following submissions in relation to the applicants' explanation for the delay: The letters of request for action to the Principal Registrar and the Chief Justice could not substitute an application for leave to appeal, and accordingly do not explain any delay; That Mr Minus was provided with two days' notice of judgment being handed down, and that he was working in New South Wales between 24 and 26 October 2017 are not reasons for the delay; The explanation for the delay beyond October 2017, being the bankruptcy application filed against Mr Minus and his trekking holiday to Nepal, was also inadequate; In his letter to the Principal Registrar dated 26 October 2017, Mr Minus referred to the primary Judge's "continuing close association with the Queensland Bar….teaching commercial litigation workshops in Papua New Guinea", such that it was clear his discovery of the activities of the primary Judge was not delayed (as Mr Minus claimed); and The applicants have a history of procedural non-compliance in both this and related proceedings. 81 The delay of the applicants in seeking leave to appeal was lengthy, being in the order of ten months. I am not satisfied that an adequate explanation has been provided by the applicants for this delay in seeking leave to appeal from the primary judgment. I have formed this view for the following reasons. 82 First, while the applicants have given reasons for their failure to take action prior to and during March 2018, no reasonable explanation has been provided for the delay by them to seek leave to appeal the decision of the primary Judge after March 2018. A delay of over four months, between March 2018 and the filing of the Extension Application in August 2018, is substantially unexplained. 83 Second, any complaints by the applicants to the Chief Justice and the Principal Registrar in respect of the conduct of these proceedings, either by the Registry or the primary Judge, do not constitute a satisfactory explanation for the applicants' delay in taking action within the time required by the Rules to seek leave to appeal. 84 Third, Mr Minus submitted that the delay of the applicants in seeking leave to appeal was at least partially attributable to his lack of knowledge of the primary Judge's involvement with Queensland Bar Association activities. However, this submission is somewhat inconsistent with the contents of his letter to the Principal Registrar of 26 October 2017, wherein Mr Minus stated: 4. Given what I have now discovered to be [the primary Judge's] continuing close association with the Queensland Bar, which is a constituent member of the Respondent in this action, through what I understand are annual joint adventures reaching commercial litigation workshops in Papua New Guinea, [the primary Judge] should have been minded on any fair basis to recuse himself from participation. (Emphasis added.) 85 Fourth, the fact that Mr Minus took a trekking holiday to Nepal from early December 2017 to early January 2018 is not, of itself, a satisfactory explanation for the applicants' delay in seeking leave to appeal during that period. 86 The absence of a satisfactory explanation for the delay in seeking leave to appeal is grounds for refusal of the Extension Application. However, in the interests of justice, I will now turn to the grounds on which the applicants rely for extension of time and leave to appeal.
Issue 2: Whether the decision of the primary Judge is attended with sufficient doubt to warrant it being reconsidered 87 In considering this question, it is not appropriate for me to have regard to the applicants' proposed grounds as though this were a final hearing of his appeal on the merits: Mentink v Minister for Home Affairs [2013] FCAFC 113 at [51]. At this stage, the merits should be assessed at a reasonably impressionistic level and should not transgress into a fuller consideration of the arguments for and against each ground: MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478; [2016] FCAFC 110 at [38]. 88 The appeal grounds must be plainly hopeless on their face to fail the threshold of merit required: MZABP at [21].
Issue 2(a) (ground 2): Whether the applicants were denied procedural fairness by reason of the administration processes of the Court 89 The applicants claim by ground 2 to have been denied a fair trial by his Honour, partly due to alleged administrative failures of the Court in: advising that the extension of time would be dealt with in Chambers by a Registrar and then taking no action for six months; and indicating the matter would be dealt with by a Judge when the applicants enquired as to the progress of the matter. 90 The Orders of Registrar Ng on or about 23 February 2017 required the applicant to file an affidavit by 1 March 2017 and the respondent to file any affidavit or submissions in reply. As the primary Judge noted in the 10 August 2017 hearing, "there are many reasons why nothing may have happened, at least one of which is you didn't file a notice of motion" (transcript p 8 ll 41-42). 91 Mr Minus deposed during the course of the 18 August 2017 hearing: … The last thing I would like to say is, there hasn't been any - despite the objection to allowing further time or any time, there's no basis on which that application is made. There's no commercial urgency. There is no particular issues that call for this matter to be dealt with urgently. The matter has been, as I said, in the registry for some five months and the delay of three weeks to allow me to properly prepare should not be a consideration for the respondents or, indeed, for the court. That's my evidence, your Honour. (Transcript, p 5 ll 14-20.) 92 It is unclear in this case whether the Orders of Registrar Ng were formally made. There is no evidence on the Court file that they were. However, the applicants took no issue with this, and were plainly aware of steps they were requested to take by Registrar Ng to progress the matter. This is clear from the email of 1 March 2017 to the legal case manager (in Exhibit 2(A)), attaching the 1 March Affidavit. In that email, Mr Minus stated that he was "responding to orders made by Registrar Ng". Similarly, the solicitor for the respondents, Mr Tom Bridges, exhibited relevant emails of the legal case manager. I am satisfied that Registrar Ng made the relevant orders on or about 23 February 2017. 93 The primary Judge recognised at [17] and [18] that there was a "hiatus" in the Registry in respect of this matter. The parties were informed on 20 June 2017, by an email from the legal case manager, that the matter would be referred to a Judge. Further, it is entirely unclear to me how the hiatus in the Registry could be seen to be a denial of procedural fairness to the applicants by the primary Judge in circumstances where: the actions of the Registry were not attributable to his Honour; and the applicants contended before his Honour at the hearing of 18 August 2017 that there was "no commercial urgency" attendant on the matter. 94 Indeed, this aspect of the applicants' case is inconsistent with their complaint that the primary Judge expedited the hearing. Rather, an obvious inference for me to draw in this case is that the primary Judge was desirous of ensuring that the matter was listed promptly and the applicants received their day in Court in respect of these proceedings, after they had complained of the matter languishing in the Registry. 95 In my view ground 2 is plainly hopeless.
Issue 2(b) (ground 3): Whether the applicants were denied procedural fairness by the conduct of the primary Judge in the proceedings. 96 The applicants claim, in summary, that: The primary Judge failed to deal with the matter as an interlocutory application; The primary Judge failed to require the filing of affidavit evidence relevant to issues which were then "live"; and The primary Judge relied only on the 1 March Affidavit, which had been filed for purely administrative purposes of the Registry more than six months earlier. 97 On 18 October 2017, the primary Judge ordered that: the requirement that the applicants file an interlocutory application for extension of time within which to file a notice of objection, be dispensed with; the requirement that the applicants make a payment into the Litigants' Fund be dispensed with; and the 1 March Affidavit be deemed to be the interlocutory application. 98 It is difficult to interpret these Orders as being other than entirely for the benefit of the applicants. 99 At the hearing before me, Mr Minus submitted that he was denied the opportunity by the primary Judge to file an interlocutory application. This claim is not supported by any material before me. There is simply nothing to substantiate any contention that the applicants ever sought to file an interlocutory application, or raised any prejudice they might suffer in the proceedings because of the absence of a formal interlocutory application, or that the primary Judge refused them the opportunity to file an interlocutory application. 100 As I have earlier noted, the Orders of Registrar Ng of on or about 23 February 2017, with which the parties substantially complied, were as follows: 1. Dispense with the requirement for the Applicant to file an Interlocutory Application. 2. On or before 1 March 2017 by 4 pm, the Applicant to file an Affidavit outlining the basis why the Notice of Objection should be allowed to be filed out of time; 3. On or before 15 March 2017 by 4 pm, the Respondents to file any Affidavit and/or written submissions in reply if there is any opposition to what is sought by the Applicant in order 2. The Registrar will then consider the documents in chambers and make a decision on the papers. (Emphasis added.) 101 There is no material before me to suggest that the applicants took issue with the Orders of the Registrar. 102 It is apparent on the face of these Orders that the Registrar intended to determine the matter on the basis of the 1 March Affidavit. It is difficult to see how the applicants could not have understood that. Indeed, in his email of 6 June 2017 to the legal case manager of the Federal Court, Mr Minus wrote: I have heard nothing further since this email to which I sent my submissions as to what was the decision of the Registrar. Can you please advise as I have had no written communication. 103 The 1 March Affidavit was clearly not for "purely administrative purposes" as claimed by the applicants. 104 Nor do I consider there to be any basis on which the applicants could argue that the primary Judge determined the matter only upon the 1 March Affidavit. The primary Judge proposed, and made, directions on 18 August 2017 for the filing of submissions, and the parties were asked for their views in relation to those proposed directions. There is absolutely nothing in the material before the Court supporting any contention that the applicants requested the opportunity to file further affidavit evidence. However, the applicants filed submissions in accordance with his Honour's orders on 11 September 2017, and the respondents filed submissions on 22 September 2017. 105 The primary Judge proceeded on the material the parties chose to put before his Honour, including the 1 March Affidavit. 106 The claim of the applicants that they were denied procedural fairness by his Honour in respect of the conduct of the proceedings is without foundation. Ground 3 is plainly hopeless and bound to fail.
Issue 2(c) (ground 4): Whether the applicants were denied the opportunity to be heard 107 The applicants claim by ground 4 that they were denied the opportunity to be heard for the following reasons: The provision of only two days' notice of the 10 August 2017 hearing; The order of the primary Judge that the parties file submissions by 8 August 2017, which was the same day the parties were advised of that requirement by the Registry; The primary Judge wished to expedite the matter so as not to interfere with his "looming tour of duty in Papua New Guinea"; The primary Judge acted in a "bullying" and "harassing" manner in failing to hear the applicants; and The primary Judge "never allowed [Mr Minus] to do anything in [the 10 August 2017] hearing, and when [Mr Minus] attempted to he threatened to send [Mr Minus] to the cells" (transcript p 13 ll 7-8). 108 In my view these claims have no basis. I have so concluded for the following reasons. 109 First, the primary Judge explained at [18] that the hiatus of the matter in the Registry was the reason his Honour initially expedited the matter. As I have already noted, it is entirely reasonable to infer that this was the reason for his Honour's expedition of the proceedings. In circumstances where, on the prior Orders of Registrar Ng, the matter appeared to be ready for determination, it was not unreasonable for the primary Judge to take that approach. His Honour was clearly concerned that a decision not be delayed further. However, the 10 August 2017 and 18 August 2017 hearings were adjourned, at the request of the applicants and over the opposition of the respondents, to provide the applicants further time to prepare. Ultimately, the actual determination of the matter did not proceed on expedited terms. 110 Second, it is apparent that, at the 10 August 2017 hearing, his Honour was concerned that "if I deal with this now… in addition to any substantive ground of appeal, there would be an asserted denial of procedural fairness. It has just got that spelt all over it. It reeks of it." It was against the background of this concern that his Honour ordered the hearing adjourned on 10 August 2017. 111 Further, to the extent that the applicants made successful oral applications for adjournment at both the 10 August 2017 and 18 August 2017 hearings, it could not be said that they were denied a fair hearing by the primary Judge, who granted their applications notwithstanding the vocal opposition of the respondents. 112 Third, to the extent that the applicants claimed that the decision of the primary Judge warranted reconsideration because his Honour acted in a bullying or harassing manner at the hearings, perusal of the transcripts of those hearings indicates that such claims are baseless. For example, whilst Mr Minus was interrupted twice by the primary Judge during the 10 August 2017 hearing, those interruptions were to address concerns being raised by Mr Minus, in particular: to point out to Mr Minus that the respondents were not taking any issue with the fact that no application had been filed, and it was therefore unnecessary for him to provide any explanation for the delay in filing the 1 March Affidavit (which explanation was clearly otiose) (transcript p 8 ll 8-20); and to explain to Mr Minus that it was unnecessary for him to detail the history of the hiatus of the matter, as the Court was prepared to grant the adjournment sought by the applicants (transcript p 8 ll 22-45). 113 Indeed, the interruptions by the primary Judge were to reassure Mr Minus and the applicants that the Court had heard and understood their case, not to bully or harass them. 114 Fourth, whilst the primary Judge was perhaps sharp in saying to Mr Minus, "don't talk over me, mister, or you will have a trip to the cells" (transcript p 10 ll 31-32), the statement in context fails to evidence bullying or harassment by the primary Judge. As examination of the transcript clearly shows, this statement by his Honour was made in the context of Mr Minus persisting in making submissions concerning the timing of the adjourned hearing. This was after his Honour had already considered Mr Minus' submissions concerning his need to commute from Camperdown to the Court, and after his Honour had already ruled on the time and date of the adjourned hearing. I also note that Mr Minus is not an inexperienced litigant in person, but rather an experienced legal practitioner, and ought properly have understood appropriate Court etiquette (including that parties and Counsel in Court should not speak over the Judge). 115 Fifth, Mr Minus claimed that the primary Judge presented the date of 18 August 2017 for the adjourned hearing to the applicants as a fait accompli, without hearing Mr Minus, but after ascertaining the availability of Mr O'Meara for the respondents. However: The hearing was by video conference, which presents practical challenges to the Judge and the parties for making and hearing submissions. The exchange between the primary Judge and Mr O'Meara on 10 August 2017, where his Honour ascertained the availability of Mr O'Meara, was in the context where his Honour was hearing the respondents' opposition to the applicants' adjournment application, and where his Honour was ruling against the respondents in this regard. Examination of the transcript indicates that his Honour did not fail to engage with Mr Minus in relation to his availability on 18 August 2017. After hearing Mr O'Meara, his Honour put to Mr Minus the date of 18 August 2017 as the date for resumption of the hearing. It was open to Mr Minus to respond to his Honour's statement, with a preference for another date if 18 August 2017 was, for valid reasons, unsuitable to the applicants. He did not. Rather, the issue taken by Mr Minus in respect of the adjournment was the timing of the hearing on 18 August 2017, and the amount of time Mr Minus would require to commute from Camperdown to the Court to meet the hearing time. 116 In any event, in my view this aspect of the applicants' claim goes nowhere in circumstances where, on 18 August 2017, the primary Judge ultimately granted a further adjournment of the proceedings to the applicants. 117 In my view ground 4 is plainly hopeless and bound to fail.
Issue 2(d) (grounds 5 to 10): A fair-minded lay observer would have reasonably apprehended that the primary Judge would not bring an impartial mind to the case, or that the primary Judge was actually biased, by reason of the associations of the primary Judge with the respondents or the conduct of the proceedings 118 By grounds 5 to 10 the applicants claim: The primary Judge was aware of a procedural fairness issue concerning his Honour's background as a former barrister and the role of the respondents as entities representing barristers, but failed to disclose his former, then-existing and continuing associations with the respondents; The primary Judge's behaviour during the proceedings favoured the respondents; A fair-minded lay observer would reasonably have apprehended that the primary Judge would not bring an impartial mind; The primary Judge was actually biased, due to his associations with the respondents and his conduct of the proceedings; and The primary Judge failed to recuse himself where, in the circumstances, he was required to do so. 119 Further, during the hearing before me Mr Minus submitted: The primary Judge recognised that the circumstances of the case "reeked" of issues of procedural fairness; and The conduct of the primary Judge could be contrasted with that of another Judge in related proceedings who had contacted the parties to inform them of his association with the Queensland Bar Association. 120 An allegation of bias, either apprehended or actual, is very serious. The onus of establishing facts upon which an allegation of apprehended bias is made lies on the party making it, and the standard of proof is high: AZAEY v Minister for Immigration and Border Protection (2015) 238 FCR 341; [2015] FCAFC 193 at [23]; Bala v Minister for Immigration and Border Protection [2019] FCA 600 at [21]; Blenkinsop v Wilson [2019] WASC 77 at [335]. Similarly, the onus of demonstrating actual bias lies upon the claimant, and it is a heavy onus: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [37] and [228]. 121 In respect of principles of apprehended bias, the majority observed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63: 7. The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror. 8. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application 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. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed. 122 Similarly, in Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20, the majority observed: 20. The question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely a factual one, albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made. 21. The principle governing cases of possible bias was said in Ebner to require two steps to be taken in its application. The first requires the identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits. Where it is said that a decision-maker has an "interest" in litigation, the nature of that interest must be spelled out. The second requires the articulation of the logical connection between that interest and the feared deviation from the course of deciding the case on its merits. As Hayne J observed in Jia Legeng, essentially the fear that is expressed in an assertion of apprehended bias, whatever its source, is of a deviation from the true course of decision-making. 22. It was observed in Ebner that the governing principle has been applied not only to the judicial system but also, by extension, to many other kinds of decision-making and decision-makers. It was accepted that the application of the principle to decision-makers other than judges must necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making. The analogy with the curial process is less apposite the further divergence there is from the judicial paradigm. The content of the test for the decision in question may be different. 23. How the principle respecting apprehension of bias is applied may be said generally to depend upon the nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision-maker. The principle is an aspect of wider principles of natural justice, which have been regarded as having a flexible quality, differing according to the circumstances in which a power is exercised. The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision. (Footnotes omitted.) 123 In relation to actual bias, Gleeson CJ and Gummow J in Jia Legeng at [35] cited with approval French J at first instance in those proceedings, where his Honour observed that actual bias: …must be a pre-existing state of mind which disables the decision-maker from undertaking or renders him unwilling to undertake any or any proper evaluation of the materials before him or her which are relevant to the decision to be made. 124 Their Honours also at [36] cited with approval comments of French J that actual bias existed where: the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant. 125 The distinction between an inquiry into apprehended bias and actual bias was examined by the High Court in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48, where the majority relevantly observed: 33. Because the test [for apprehended bias] is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias. The respondents did not submit in this Court or in the courts below that the trial judge had in fact prejudged any issue. (Emphasis in original.) 126 I have perused the relevant transcripts, the submissions of the applicants and the material on which they rely, and the judgment of his Honour. I am satisfied that there is no basis on which bias could be attributed to the primary Judge in this case, either apprehended or actual. Grounds 5-10 are plainly hopeless and bound to fail. I have formed this view for the following reasons. 127 First, the applicants point to the fact that the Queensland Bar Association at all relevant times has been a constituent body of the Australian Bar Association. The applicants place heavy reliance on the connections, both pre-existing and then present, between his Honour and the Queensland Bar Association, including: That prior to his appointment to the Federal Court of Australia in 2007, his Honour was for 23 years a barrister, a Queen's Counsel, and a financial member of the first respondent association; That prior to his appointment to the Federal Court of Australia in 2007, his Honour was a financial member of the Queensland Bar Association, which was a constituent member of the first respondent and became a financial member of the second respondent; That his Honour engaged with the Queensland Bar Association in conducting joint training sessions with it for advocates in Papua New Guinea, for the Legal Training Institute of Papua New Guinea, in each September from at least 2013; His Honour was in a "special member category" of the Queensland Bar Association open to members of the judiciary at all relevant times, at least in 2015; and His Honour was Chair of the Queensland Bar Association's Conference Committee, at least in 2015, but also potentially in 2016 and 2017. 128 However, I note that in related proceedings, judges of this Court have already determined that prior membership of a State bar association, or a possible future association upon retirement from the Bench, would not lead a fair-minded and appropriately informed lay observer to apprehend that the Court might not bring a fair, impartial and independent mind to determining the matter before it: Selth v Australasian Barrister Chambers Pty Ltd (No 5) [2019] FCA 362 at [15]-[16]; Minus v Selth [2016] FCA 834 at [7]-[11]; Selth v Australasian Barrister Chambers Pty Ltd (2015) 243 FCR 423; [2015] FCA 1494 at [105]-[116]. 129 To that extent, the contentions of the applicants referable to prior or future membership of State bar associations, have previously been determined to lack merit. 130 Of particular relevance in this regard are the following comments of Muir JA in Markan v Bar Association of Queensland [2014] 2 Qd R 273; [2014] QCA 34: 11. At first instance, the appellant questioned the primary judge on his involvement with the respondent. The primary judge stated and/or accepted that: he had taught leading evidence for many years in the Bar Practice Course; he had participated in a teaching session at a recent Bar Association Annual Conference, at which his overnight accommodation had been provided by the respondent; and that his son was "most likely" a member of the Bar Association. In answer to a question by the appellant, the primary judge said, in effect, that he had not otherwise participated in Bar Association programs or monetary schemes within the last three years and that he had no membership in the respondent, honorary or otherwise. 12. Although there was no evidence on the point, the Bar Practice Course, until the end of last year and thus for almost all of the primary judge's involvement in it, was conducted by the Bar Practice Centre, a joint venture between Queensland University of Technology and the respondent. However, even if the Bar Practice Course had been conducted by the respondent itself, there would have been no grounds warranting the recusal of the primary judge. 13. I am not persuaded that: "a fair-minded lay observer might reasonably [have] apprehend[ed] that [the primary judge] might not bring an impartial mind to the resolution of the question [he was] required to decide". 14. Such a person is taken to be reasonable. The reasonableness of any suggested apprehension of bias must be considered in the context of ordinary judicial practice and "take account of the exigencies of modern litigation". 15. The fair-minded lay observer would be taken to know or understand "the strong professional pressures on [judges] (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality" and would not be "unduly sensitive or suspicious". 16. The connection between the primary judge's role of instructor in Bar Practice Centre courses and his attending and speaking at a Bar Association conference on the one hand and a fear of his being influenced in determining the case on the other is singularly slight. No possibility of financial gain or loss is involved apart from the paltry benefit, if it be that, obtained from meals and accommodation on one occasion when the primary judge provided his services gratuitously. 17. It is necessary also to bear in mind the nature of the judiciary and its traditional links with the Bar. Since well before federation the overwhelming majority of Supreme Court judges have been appointed from the ranks of the Bar, normally the senior Bar. Typically, such appointees have been members of the Bar associations of their respective states; often past Presidents, Vice Presidents or committee members. Friendships with colleagues at the Bar are not extinguished by appointment to the bench although diminution in social and workplace contact as well as constraints on intercourse between judges and barristers, where matters in which both are involved are being heard or remain undecided, impinge on such relationships. 18. The existence of a competent Bar on whose integrity the judiciary can depend is integral to the Court's ability to hear and determine matters efficiently and justly. Speaking on his retirement as Chief Justice of Australia, Sir John Latham spoke of "the essential and intimate connection between the courts and a strong and independent legal profession". 19. In his speech at his swearing in as Chief Justice of Australia, Sir Owen Dixon expressed the opinion that: "Counsel, who brings his learning, ability, character and firmness of mind to the conduct of causes and maintains the very high tradition of honour and independence of English advocacy, in my opinion makes a greater contribution to justice than the judge himself." 20. The foregoing considerations make it inevitable that there will be links between barristers and their association on the one hand and judges on the other. It has never been considered, however, that such links, including friendships, stand in the way of the impartial determination by judges. 21. The high ethical traditions of the Bar and the judiciary are relevant also. Barristers and their association would not desire or contemplate that they or their association would receive any favours from a judge hearing a case in which the association was a party. Any judge seen to exhibit a lack of impartiality in such circumstances would incur condemnation rather than approbation. The links between a judge and a barrister's association are thus singularly unlikely to cause a judge to fail to act impartially. In this case the links are tenuous. There is no substance in this ground of appeal. (Citations omitted.) 131 One potential distinction between the current circumstances and those in Markan appears to be that, unlike the judge in Markan, the primary Judge in this case was in a "special member category" of the Queensland Bar Association, at least in 2015. Such members do not participate in the governance of the association, but do take an active role in professional development activities. However, the fact that his Honour was prepared to take an active role in professional development activities for lawyers in Queensland is scarcely suggestive that his Honour would be unable to bring an unbiased mind to the proceedings before him. 132 The relationship between his Honour and the Queensland Bar Association can, for example, be contrasted with that of a judge who was an unpaid director and chairman of Amnesty International Charity Ltd at a time when Amnesty International was a party to proceedings seeking the extradition of a former President of Chile from the United Kingdom to Spain on charges of human rights crimes: see R v Bow Street Metropolitan Stipendiary Magistrate; ex parte Pinochet Ugarte (No 2) [2000] 1 AC 119. 133 In relation to his Honour's ongoing judicial membership of the Queensland Bar Association, there is authority that mere membership of a professional organisation such as the Queensland Bar Association does not justify disqualification in accordance with the principle that a judge may not sit in any case in which he has an interest: Meerabux v Attorney General of Belize [2005] 2 AC 513. Similarly, engagement by a Judge, who was formerly a barrister, in professional activities in which a Bar Association is engaged, and retaining judicial membership of the Queensland Bar Association, which is not an active membership, does not give rise to a apprehension of bias: Day v Humphrey [2019] QSC 38 at [39]. 134 Mr Minus referred in submissions before me to the statement by the primary Judge that he would be visiting Papua New Guinea. Mr Minus referred to this visit as a "holiday" (transcript p 33 l 4) on the part of his Honour. However, the material before the Court suggests that the visits by his Honour were part of the engagement by the primary Judge with members of the Queensland Bar Association, in presentation of an advocacy course held by the Papua New Guinea Legal Training Institute for emerging legal practitioners in that country. 135 Engagement by members of the judiciary with the legal profession, students and other members of the public has historically been considered to be a meritorious activity. In the context of procedural fairness concerns, such conduct is unremarkable. There is no suggestion in any material before the Court that the primary Judge was rewarded, financially or otherwise, for his participation in the Legal Training Institute course. In relation to legal teaching by members of the Judiciary, as is explained in Guide to Judicial Conduct (3rd ed, Australian Institute of Judicial Administration Incorporated, 2017): 5.9 Legal teaching It is common for judges to lecture at law schools after they are appointed and to take part in Bar and Law Society professional development programs, whether for remuneration or not. As long as this does not interfere with judicial duties, there is an advantage in having a judge give lectures to students. On matters on which there may be differences of views, discretion will have to be exercised - particularly when the lecturer may later have to decide the question as a judge. 136 Similarly, in relation to giving papers at law conferences: 5.12 Taking part in conferences Judges may, and frequently do, deliver papers without a fee at legal conferences, organised by not for profit organisations. Participation in, or the giving of papers, without a fee at non-legal conferences, organised by not for profit organisations, is not objectionable. It is advisable to avoid speaking or writing on controversial or politically sensitive topics. A judge who is asked to speak at a non-legal conference should make sure that there is no risk of the judge appearing to be associated with the organisers or others who share the platform with the judge, if such association is likely to be controversial. It may be inappropriate for a judge to give a paper at a conference organised by commercial organisations, as opposed to a not for profit organisation. 137 In particular, in relation to engagement with the Papua New Guinea Legal Training Institute: 6.5 Engagement in public and community organisations Prior to their appointment, many judges have been actively engaged in community organisations, particularly but not exclusively educational, charitable and religious organisations. Such engagement as a judge is to be encouraged and carries a broad based public benefit, provided it does not compromise judicial independence or put at risk the status or integrity of judicial office. It is the proviso that helps to define the limits, namely: • Such activities should not be too numerous or time consuming; • The judicial role should not involve active business management; • The extent to which the organisation is subject to government control or intervention must be weighed. The governing bodies of universities, public or large private hospital boards or other public institutions invite special attention. Although the management and funding structures of such organisations are complex, and are often the subject of public debate and political controversy, many judges, present and past, hold or have held high office in such organisations without embarrassment by regulating the nature or extent of personal involvement in contentious situations. The following matters may warrant consideration when considering a proposed appointment: • The risk of the organisation becoming involved in disputes, particularly disputes with a political aspect, with the Executive Government. • The risk of the organisation failing to comply with legislation binding it. • The risk of the organisation getting into financial difficulty. The role of many such public institutions is, moreover, changing. They are often encouraged to be more entrepreneurial. Commercial activities and industrial issues or disputes are likely to appear on their agendas. The more that the business of their governing bodies comes to resemble that of the board of directors of a public company, the less appropriate judicial participation may be. There is, however, no embargo on such an activity. It is for the individual judge to weigh the "pros and cons" by reference to the suggested guidelines. 138 I also note comments of Chief Justice Allsop of the Federal Court, speaking extra-curially in 2018, to the following effect: The maintenance of the skill and scholarship of the Bar is a constant challenge. The sheer volume of law graduates and the proliferation of law schools presents a challenge for legal education and legal practice. It is a challenge not restricted to the Bar; but it is a challenge that extends to the Bar. The Bar's courses for entry and practice must be of the highest standard, not as a barrier to entry for the sake of keeping numbers low, but as a driver of expected skill and scholarship. In this the courts have a role, which I think has not been fully recognised in the past. It should be. The Bench should be viewed as a partner with the Bar in the education not only of readers but of the Bar more generally, and vice versa. Judges often assist, but I do not perceive (perhaps I am wrong) that this is viewed as a standing partnership of responsibility. It should be. Judges cannot complain about perceived shortcomings in the profession's practice if they are not prepared to engage with the Bar to help advocates deliver what judges want to see. (Emphasis added.) (Chief Justice Allsop, "Future of the independent Bar in Australia", ABA/NSW Bar Association Biennial Conference, 17 November 2018) 139 I am not persuaded that his Honour acted inappropriately by not disclosing his voluntary educational activities and unremarkable professional connections to the Queensland Bar in these proceedings, or by not recusing himself from hearing the proceedings. In my view, no unfavourable comparison can be drawn between the conduct of his Honour, and the actions of another Judge to which Mr Minus referred in submissions. 140 Second, I am not persuaded that the primary Judge favoured the respondents during the hearings. As I have already noted, the respondents opposed the adjournments sought by the applicants, both on 10 August 2017 and 18 August 2017, but his Honour found in favour of the applicants on both occasions. For the reasons I gave earlier in this judgment, I also do not accept the allegation that the applicants were denied an opportunity to be heard. 141 Finally, as I have already noted, his Honour spoke somewhat sharply to Mr Minus at the conclusion of the hearing (in particular, transcript p 10 ll 31-32). However, as I have already observed: The hearing was by video, requiring disciplined delivery of submissions; Mr Minus is, of his own admission, an experienced legal practitioner; It is inappropriate for parties to speak over, or repeatedly interrupt, the Judge when the Judge is addressing them; and It is inappropriate for parties to seek to continue to argue points which have been determined by the Judge. 142 In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, the majority said: 19. Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case. 20. This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable. 143 In my view there is nothing in the conduct of this matter by his Honour which could support a claim of either apprehended or actual bias on the part of his Honour. In my view, grounds 5 to 10 are plainly hopeless.
Issue 2(e) (grounds 1 and 12, 13 and 14): Whether the applicants were unjustly denied the ability to object to the Costs Estimate out of time 144 Ground 1 claims a denial of natural justice - presumably on the part of the primary Judge - in denying the applicants the opportunity to object to the Costs Estimate "2 days late", when that lateness was due to "valid reasons". 145 Ground 1 is further referable to grounds 12, 13 and 14, which take issue with the primary Judge's finding that the explanation for delay in objecting to the Costs Estimate was inadequate on the basis that: The finding was not due to his Honour rejecting the applicants' evidence, but rather related to the incompleteness of the explanation; and The applicant was unable to provide a "fulsome explanation" due to the failure of the administrative process and judicial practice that led to the denial of justice. 146 It appears that these grounds relate in particular to the following paragraphs in the primary judgment: 21. What then of the explanation, to be regarded as made on his own behalf and of the corporate applicants, offered by Mr Minus in his affidavit of 1 March 2017? The respondents did not seek to cross-examine him in respect of the explanatory statements he made in that affidavit. I have no reason to doubt the correctness of those statements. The account in the following paragraphs is based on my finding that the events occurred as Mr Minus relates in his affidavit. … 43. Mr Minus does offer an explanation for why a notice of objection was not given in time by the applicants. But it is hardly an acceptable one. 44. As the note to r 40.20 indicates would happen, after the Bill of Costs was filed on 31 August 2016, the Registrar fixed a time and date for the taxing officer to make an estimate of the Bill and endorsed those details on the Bill. The date for the taxation estimate endorsed on this Bill is "week commencing September 19th". The endorsed date then serves as a reference point as to by when the Bill of Costs must, as r 40.19 of the Federal Court Rules requires, be served on each party interested in the Bill. Given the way in which the Registrar has chosen to endorse the Bill, it had to be served at least 7 days before 19 September 2016. This aspect of costs practice was not explored either in evidence or submissions. In the absence of compliance being made controversial, I shall presume regularity. As it happened, the estimate did not issue until 23 January 2017 but the applicants must have known from about mid-September that it could issue at any time thereafter. When it did not issue in the week commencing 19 September 2016, it became all the more important for them to make sure that their hitherto specified address for service either continued to be current or was changed accordingly. 45. The address for service which the applicants had specified was, as noted, Mr Minus' chambers address. The receiver was appointed prior to the Summer Law Vacation. In the ordinary course, one might expect that a barrister would, in the ordinary course, attend his or her chambers with some regularity prior to the Summer Law Vacation. Mr Minus' affidavit is noteworthy for his absence of explanation as to how it was, on and from 6 December 2016, he was unaware, if not of the appointment of a receiver who had consequentially taken possession, at least that he could no longer access his chambers. It seems to me that his affidavit manifests an absence of candour. 46. Mr Minus made much in the submissions which he made on his own behalf and that of the corporate applicants about a need to be afforded procedural fairness in relation to the fixing of the amount of the costs liability. But the Rules provide, via the procedure for the giving of a notice of objection, for an interested party to be afforded an opportunity to be heard prior to the fixing of the amount of a costs liability. The existence of an opportunity to be heard is one thing, a failure by unacceptably explained inadvertence to put oneself in a position of taking up an opportunity is quite another. … 48. In formulating the amount of the estimate relative to the amount specified in the Bill of Costs, the taxing officer necessarily formed a view that the latter significantly overstated an amount reasonably to allow on a party and party basis. The applicants have completely failed to detail why it is that it is arguable that the amount of the estimate would further be reduced upon objection. The step which would next follow after the giving of a notice of objection would be the convening by the Registrar of a confidential conference of interested parties at which an endeavour would be made to identify the real issues in dispute in relation to the Bill and to reach a resolution of that dispute: r 40.21(2)(a). The applicants have chosen to give not a hint as to what, from their perspective, those "real issues" might be. 49. The delay here is a short one. By 1 March 2017 at the latest, the respondents were well aware that the applicants wished to object to the Bill of Costs. Even so, in my view the explanation for the delay is not acceptable and it has not been shown by the applicants that there is any point, in the form of an arguable case for the granting of an extension. This is sufficient reason to dismiss the applicants' application. 147 In relation to grounds 1, 12, 13 and 14, I make the following observations. 148 First, ground 1 relies on grounds 12, 13 and 14 evincing valid reasons for the applicants' late objection to the Costs Estimate. I am not persuaded that grounds 12, 13 and 14 identified valid reasons for the lateness of that objection. 149 Second, insofar as I can ascertain, ground 12 is in the nature of a pleading of fact, rather than a ground for either an extension of time in which to appeal, or leave to appeal. Ground 12 in its current form does not support a finding of error on the part of the primary Judge. 150 Third, and contrary to ground 13, his Honour did not find the delay in filing the application for leave to appeal was two days. The primary Judge made an order deeming the applicants to have filed and served an application for an extension of time within which to object to the Costs Estimate on 1 March 2017, when Mr Minus' affidavit was sworn. This was more than two weeks after the Registrar issued the Certificate of Taxation certifying the respondents' costs. 151 Fourth, ground 13 is an assertion that his Honour found the applicants' explanation for the delay in filing the application lacked credibility because of the incompleteness of explanation. This assertion appears to misrepresent the findings of the primary Judge. What his Honour actually found was that there had been a failure on the part of the applicants to adequately explain their alleged inadvertence in complying with the Rules (at [46]), not that the explanation was "incomplete". His Honour set out, in detail, why he reached that view. In particular, his Honour noted that there was no explanation advanced by the applicants as to how Mr Minus was unaware of the appointment of a receiver, or his inability to access his chambers, as and from 6 December 2016. His Honour considered this absence of detail on the part of Mr Minus to manifest an absence of candour. On the material before me, I am unable to see how the findings of the primary Judge were not open on the evidence before his Honour. 152 In this respect, I also note that no application was made by the applicants to his Honour to file further material, which could have cast further light on their reasons for delay. 153 Finally, ground 14 is illogical in attempting to draw a link between the applicants' "inability… to provide a fulsome explanation for the failure to collect his mail in time", and the "failure of administrative process and failure of judicial practice". Again, no application was made by the applicants to file further material, such that there could be a demonstrable failure of either administrative or judicial practice as alleged by the applicants. 154 Grounds 1, 12, 13 and 14 are plainly hopeless and bound to fail.
Issue 2(f) (ground 11): Whether the applicants were unjustly refused an order by the primary Judge pursuant to s 37P(3)(f) of the Federal Court Act 155 Ground 11 claims that the primary Judge failed, in the interests of justice, to exercise the power granted by s 37P(3)(f) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) to waive or vary any provision of the Rules of Court in their application to the proceeding for the granting of an extension of time. 156 Relevantly, s 37P provides: Power of the Court to give directions about practice and procedure in a civil proceeding (1) This section applies in relation to a civil proceeding before the Court. (2) The Court or a Judge may give directions about the practice and procedure to be followed in relation to the proceeding, or any part of the proceeding. (3) Without limiting the generality of subsection (2), a direction may: (a) … (b) … (c) … (d) … (e) … (f) waive or vary any provision of the Rules of Court in their application to the proceeding; or (g) … … 157 At [50]-[51] the primary Judge said: 50. The respondents advanced a further reason why the application ought to be dismissed. They submitted that it was futile. That was because the certificate of taxation which issued on 15 February 2017 was, by r 40.32(2) of the Federal Court Rules, deemed to be an order of the Court. That being so, they submitted that none of the bases specified in r 39.05, upon which the Court may vary or set aside a judgment or order after it has been entered was present in the circumstances of this case. The evidence does not establish that the certificate of taxation was issued in the absence of a party (notice of the estimate was given), does not reflect the intention of the Court, contains a clerical mistake, or contains an error from an accidental slip or omission. 51. In Finch v The Heat Group Pty Ltd (No 3) [2016] FCA 102 at [33(a)], with reference to the power found in r 1.35 to dispense with compliance with the Rules, Murphy J opined, by reference to prior authority that, "while ... the Court must always be guided by the interests of justice, the overarching principle of finality of litigation means that the Court should be cautious before varying or setting aside an order which has been entered". So much may be accepted. But the Court also is given power, by s 37P(3)(f) of the Federal Court of Australia Act, "to waive or vary any provision of the Rules of Court in their application to the proceeding". If the case truly were one for the granting of an extension of time within which to object and pay into the Litigants' Fund, this statutory power might be used to vary what would otherwise have been the effect of r 40.32(2) in respect of the certificate of taxation and to order that the provision in r 40.20(4) for the amount of the estimate to be the amount for which the certificate of taxation is to issue be dispensed with. The plenary power otherwise found in s 37P would permit the Court to make such further or other orders as were necessary so as not to render in a worthy case the granting of an extension of time futile. I therefore do not rest my dismissal of the applicants' application on any inability to engage one or more of the bases found in r 39.05 for varying or setting aside what is otherwise taken to be an order which has been entered. 158 In summary, his Honour found that the case before him was not one which engaged s 37P of the Federal Court Act. 159 The applicants do not appear to cavil with the findings of his Honour at [50]-[51]. In ground 11 they appear to contend that his Honour's failure to apply s 37P(3)(f) of the Federal Court Act was contrary to the interests of justice. However, no basis substantiating this claim has been advanced. Further, as the applicants have not established that the primary proceedings were attenuated by procedural unfairness, or that the decision of the primary Judge was wrong in some respect, this ground must fail.
Conclusion 160 The proper order is that the Extension Application be dismissed. 161 I will hear the parties in respect of costs
I certify that the preceding one hundred and sixty one (161) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.
Dispute Resolution Associates Pty Ltd
Selth
[2019] WASC 77
[2019] QSC 38
[1991] FCAFC 844
[2014] QCA 34
(2019) 268 FCR 448
(1991) 33 FCR 397
(2000) 205 CLR 337
(2015) 255 CLR 135
(2011) 244 CLR 427
(2001) 205 CLR 507
(2015) 243 FCR 423
(2016) 238 FCR 15
(2015) 238 FCR 341