Dunstan v Orr

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BURLEY J: 1 On 5 September 2022, the applicant, Colin Dustan, filed an application for leave to appeal from a decision given on 29 August 2022 whereby the primary judge declined to recuse himself on the grounds of apprehended or actual bias; Dunstan v Orr [2022] FCA 1006 (recusal judgment). 2 On 7 September 2022 I made directions that the parties file written submissions in relation to the application, and, on the request of the applicant, that the application be determined on the papers. The parties duly filed submissions. On 16 September 2022 I determined that the application for leave be refused with costs. These are my reasons for doing so. 3 The proceedings are brought by the applicant against the Commonwealth of Australia and three former officers of the Australian Taxation Office (ATO), Ms Robyn Orr, Mr John Higham and Mr John Growder (collectively, the respondents). The applicant alleges, in summary, that the respondents and another former officer of the ATO, Dr John Molineux, gave false evidence in proceedings in this Court that the applicant commenced in October 1997. Those earlier proceedings, which were heard by Besanko J in July 2007, were dismissed with costs in January 2008: Dunstan v Orr [2008] FCA 31; 217 FCR 559 (the 2007 proceedings). The relief sought by the applicant in the current proceeding includes an order setting aside the judgment in the 2007 proceedings on the basis that it was procured by fraud, as well as damages for negligence on the part of the Commonwealth. 4 The primary judge was responsible for case managing matters filed in the Australian Capital Territory registry of this Court. At the time of the judgment the proceedings were at an early stage. Two case management hearings had been conducted and procedural directions made. Three interlocutory applications had been filed. In the first, the respondents sought summary disposal of the application or an order striking out the pleading (summary judgment application). In the second, the applicant sought production and inspection of a document from the respondents (production application). In the third, the applicant (relevantly) sought orders that the primary judge recuse himself from hearing the proceedings, including all other interlocutory applications, on the basis of apprehended and actual bias (recusal application). 5 It is the primary judge's refusal of the recusal application that is the subject of the present application, which came before me as duty judge. A need for urgency was said to have arisen from the fact that the summary judgement and the production applications were listed before the primary judge on 20 and 21 September 2022. It was contended that the question of leave should be determined before that date. 6 The applicant sought orders, in addition to the grant of leave to appeal, staying the continuation of the proceedings and staying an order for the applicant to pay the respondents' costs of the recusal application, pending determination of the appeal and also directions pursuant to Federal Court Rules 2011 (Cth) r 36.11(2)(f) to the effect that: (a) the primary judge does not hear and determine the interlocutory applications; (b) the respondents provide information as to the custody of the documents sought in the production application; and (c) that any interlocutory application be heard by a judge other than the primary judge. 7 The grounds of the application are as follows: 1. That the decision of Wigney J to decline to recuse himself on the grounds of actual bias and apprehended bias is manifestly unreasonable: a. His Honour has led the applicant to believe he has no right to access additional evidence to resist an application for summary judgment when there is a relevant authority to the contrary. b. His Honour has set matters for consecutive hearing on 20 and 21 September 2022 and led the applicant to believe the right to appeal a decision on the first matter - his application to access evidence to resist an application for summary judgment - will be extinguished by His Honour's stated intention to immediately hear the summary judgment application after any ex-tempore decision to refuse the applicant's application. c. His Honour has revealed and used inaccurate ex parte communication prejudicial to the applicant at [49] in the reasons for his decision given on 29 August 2022. 2. That the applicant was denied natural justice by Wigney J in his decision on 29 August 2022 that the applicant pay the respondents' cost of a hearing on 2 August 2022 - that hearing being on a date agreed between His Honour and the respondents, when: a. His Honour requested the applicant's view, and then ignored the applicant's proposal to allow more time to prepare. b. The respondents agreed to the suggested date only to need and receive exceptional Court assistance to have their List of Authorities - for a 1,500-page book of authorities - stamped as filed electronically at or about 6:30 pm on the night before the hearing. c. The applicant was prejudiced by the respondents' belated preparation for the hearing on the date they and His Honour had agreed between themselves, having ignored the applicant's cautionary suggestion to allow more time to prepare. 3. That the applicant was denied natural justice by His Honour in his decision on 29 August 2022 to fail to make an order the applicant requested - to require the respondents to comply with a request His Honour had made that they supply information to the applicant about custody of evidence the applicant has applied to access to resist the respondents' summary judgment application. 4. That the making of the order at Ground 2 and the failure to make the order requested at Ground 3 emanated from actual bias by Wigney J and that a reasonable observer would view as apprehended bias favouring the respondents. 8 The applicant relied on an affidavit that he affirmed on 5 September 2022 in support of his application. The affidavit is lengthy and discursive. It addresses the applicant's reasons for seeking that the primary judge recuse himself, addressing an alleged denial of procedural fairness, concerns about access to further evidence, selected quotations from the transcript of a case management hearing on 1 March 2022 that the applicant identified as founding his concerns of actual and apprehended bias and mixed submissions and extracts from correspondence between the parties and with the Court. The affidavit also addresses aspects of the judgment below and a chronology of documents annexed. 9 While there are no express constraints on the discretion to grant leave to appeal, in general leave to appeal will only be granted if the impugned decision is attended by sufficient doubt to warrant it being reconsidered on appeal and, on the supposition that the decision is wrong, substantial injustice will result if leave were refused: Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 (Sheppard, Burchett and Heerey JJ) at 398-400; Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; 217 FCR 238 (Dowsett, Foster and Yates JJ) at [26]; GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Limited [2013] FCAFC 150 (Allsop CJ, Middleton and Katzmann JJ) at [30]. 10 In the present case, in my view the decision of the primary judge is not attended by sufficient doubt as to the correctness of that decision to justify a grant of leave. 11 The grounds set out in the application that I have quoted above substantively set out the bases upon which the applicant contends would constitute the appeal, if leave were to be granted. 12 In this regard, ground 1 is that the refusal on the part of the primary judge to recuse himself for actual and apprehended bias is "manifestly unreasonable", which I shall take to mean involved error of law or alternatively an error in the exercise of discretion. 13 In the recusal judgment, the primary judge identified that the applicant's allegation of apprehended bias was based on three grounds. The first was that he is a person of "public notoriety" and that "an assumption of apprehended bias is warranted for this reason alone". The primary judge noted that there was no evidence of any such notoriety and that, even were it to be so, it is no basis for the disqualification of any judge from determining any case in which the applicant is involved. He found that the hypothetical fair-minded lay observer would understand and appreciate that the justice system operates on the premise that judges, by virtue of their training, experience and disposition are able to deal with such persons objectively and without fear or favour. The second was that in the course of a speech given by the primary judge when he was sworn in as a judge he referred to "famous victories against self-represented litigants in the Wallsend Local Court" as becoming the "stuff of third floor folklore". The primary judge rejected the applicant's submission that he had expressed an "attitude of bravado towards legal victories over self-represented litigants" on the basis that the hypothetical fair-minded lay observer would be likely to understand the swearing speech as amounting to little more than a light-hearted, somewhat self-deprecating reflection concerning his career at the bar. The third was apparently also based on the primary judge's swearing-in speech where he referred to Ian Temby AO QC as a mentor. The applicant adduced evidence of Mr Temby's wife, Diana Temby, having at one point some 25 years ago reported suspicions concerning the applicant to the Australian Federal Police. The primary judge rejected as fanciful the prospect that the hypothetical fair-minded lay observer may apprehend that he would not be able to bring an impartial mind to the resolution of the present proceedings. 14 In my view the reasoning of the primary judge is unimpeachable. No error can be discerned either in his summary of the relevant law concerning apprehended bias, or in its application to the facts of the present case. The relevant legal principle, which was set out in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 by Gleeson CJ, McHugh, Gummow and Hayne JJ at [6], is that a judge: … is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. … 15 In relation to the allegations of apprehended bias, the primary judge summarises seven allegations made by the applicant. The first is that the primary judge refused him leave to issue a subpoena to the Commissioner of Taxation in a manner such that the primary judge's identity was concealed and the reason for the decision was not disclosed. The second is that, at the first case management hearing, the primary judge failed to admonish the respondents' solicitors for failing to disclose documents in their possession, which, the primary judge inferred, was those covered by the proposed subpoena. The third is that the primary judge "excused" the respondents from complying with the Federal Court Rules insofar as they did not file a defence. The fourth is that the primary judge refused to enter default judgment against the respondent because they did not file a defence within the prescribed time. The fifth is that at the second case management hearing the primary judge consented verbally to the respondents being excused from filing a defence if they filed a summary dismissal application. The sixth is that in setting down the applicant's recusal application for hearing on 2 August 2022, as opposed to dates proposed by him, the primary judge treated him with "contempt". The seventh is that in refusing to vacate the hearing on 2 August 2022, the primary judge ignored what the applicant had to say, and paid no regard to any disadvantage that he would suffer. Finally, the primary judge records that the applicant expanded his complaints to almost every aspect of his management of the proceedings to date, operating on the working hypothesis that the primary judge was "unduly influenced" by the Commissioner of Taxation. 16 In addressing these criticisms, the primary judge correctly noted that the authorities require, to establish actual bias, that the applicant must establish that he has prejudiced his case and is not open to persuasion - that he has reached a conclusion in respect of his case which is incapable of alteration, whatever evidence or arguments may subsequently be presented: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 134E (at [79]) (North J). The High Court has noted that the state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [72] (Gleeson CJ and Gummow J). 17 The primary judge proceeded to summarise the case management steps that he took in response to the applicant's urging and arguments. He notes that the refusal for leave to issue in subpoenas was done in chambers, in accordance with the normal practice in this Court in accordance with Subpoenas and Notices to Produce Practice Note (GPN-SUBP) at [3.1]. The primary judge notes that the applicant was informed that it was open to him to address the decision of refusal of leave at the next case management hearing. In this regard, the applicant was treated no differently to any other litigant in this Court. Nor were the respondents obliged in accordance with the practice note to voluntarily disclose documents the subject of the subpoena. As the primary judge noted, the question of production was the subject of a separate aspect of an interlocutory application brought by the applicant which had been stood over for hearing. Nor did the primary judge consider that the failure on the part of the respondents to file any defence was unusual. The primary judge observed at [84] that it was explained to the applicant that it would be unusual and unreasonable to require the respondents to file a defence in circumstances where they sought summary judgment or the striking out of the statement of claim. Similarly, in such circumstances it would be unusual to accede to a request that default judgment be entered against the respondents for failure to file a defence. 18 The primary judge addressed the allegation advanced that he had unfairly or unreasonably listed the recusal application for hearing on 2 August 2022. He records that in correspondence from the Court, the parties were asked to indicate their availability to attend a hearing on that date. The applicant proposed the following week, but did not say that he was unavailable on 2 August 2022. The date was convenient for the respondents, and the matter was listed for hearing. On 27 July 2022 the applicant sent an email indicating that he had been feeling "unwell yesterday". He said that he was "not available for a hearing" on 2 August 2022. No medical report or certificate accompanied his email. He was informed by email that the date was not vacated. When the matter was called in Court, counsel was briefed to appear for the applicant for the limited purpose of seeking an adjournment. The application was opposed, and the primary judge refused it. Counsel for the applicant advised the primary judge that his client had been diagnosed with COVID-19 and had been required to isolate. After reviewing the two documents tendered in support of the application, the primary judge formed the view that the documents, which did not constitute a medical certificate or report from a doctor concerning the applicant's state of health or symptoms, were insufficient to warrant the grant of an adjournment. The recusal application came at a time after the primary judge had set the summary judgment application and the production application down for hearing on 20 September 2022. The primary judge notes that if he were to recuse himself, it would be necessary for that application to be heard before that date. The primary judge records that the Court had limited availability prior to 20 September 2022. If the application did not proceed on 2 August 2022, then it would be necessary also to vacate the September date, which the primary judge was reluctant to do. 19 Having made these points, the primary judge did not dismiss the applicant's application for recusal on the basis that the applicant had not appeared, or proceed to hear it in his absence. Rather, he determined that the preferable course was partly to adjourn the recusal application. He decided that the recusal application would proceed without an oral hearing. He gave the applicant an opportunity to file written submissions in reply to the respondents' written submissions. The applicant subsequently filed a further 15 pages of submissions and an additional affidavit, to supplement his submissions in chief. 20 The primary judge concluded he did not consider that anything that he had done in the management of the proceedings would establish that he is not open to persuasion or that he has reached a conclusion in respect of his case which is incapable of alteration, whatever evidence or arguments may subsequently be presented. 21 In my view the approach of the primary judge to the management of the proceedings does not remotely serve to indicate an indication of actual bias. It represented what might be considered the normal process of managing a case at its early stages, including making necessary discretionary decisions as to the conduct of the case in the light of competing submissions advanced by the parties. 22 In his affidavit, the applicant advances a contention that the primary judge had pre-judged a question relevant to the strike out application and the production applications which were listed to be heard in September 2022. In particular, he submits that at the case management hearing on 1 March 2022 he had requested the production of certain documents prior to finalising his statement of claim (which was subsequently filed on 28 March 2022 and amended on 20 September 2022) and that the possibility of the respondents being required to produce such documents before a hearing of any summary dismissal application had been prematurely ruled out by the primary judge. However, the affidavit of the applicant recites a passage of transcript of the case management hearing on 28 June 2022, at which the primary judge made clear that he would hear the applicant's production application separately and before the summary judgment application advanced by the respondents. The primary judge said that if he upholds the request for production of documents, then the documents can be produced before proceeding with the summary dismissal application. That passage finds expression in [46] of the primary judge's decision. Contrary to the contention advanced by the applicant, it cannot be said to be at all apparent that the primary judge had prejudged the production application or that he had somehow led the applicant to believe that he had no potential right to access further documents, or use those in addressing the strike out application. To the contrary, the approach of the primary judge made apparent that he had an open mind as to whether the production of documents might take place in advance of the hearing of the recusal application. 23 In ground 2 of the application, the applicant contends that he was denied natural justice by the primary judge in reaching the conclusion that he must pay the respondents' costs of the hearing on 2 August 2022. I have summarised the events leading to the decision of the primary judge to refuse the adjournment application. That decision was a question of practice and procedure which involved the exercise of discretion by the primary judge. No error in the exercise of that discretion of the type required by House v The King [1936] HCA 40; 55 CLR 499, either in refusing the adjournment or in the order of costs, has been demonstrated. Nor is possible to discern a failure on the part of the primary judge to afford the applicant procedural fairness in reaching his decision as to costs. The applicant was represented by counsel at the adjournment application which failed. Costs followed the event. The applicant had ample opportunity to present his case for the adjournment. 24 In ground 3 of the application the applicant contends that he was denied natural justice in the recusal judgment because the primary judge failed to order that the respondents supply information about the custody of evidence. No particulars are provided of the alleged failure. The complaint advanced would appear to be that the applicant did not succeed in his request that the primary judge make an order to compel the respondents to disclose whether they were in possession of the documents in respect of which he sought production. No denial of procedural fairness is apparent. 25 In ground 4 the applicant adds no further basis upon which a finding of actual or apprehended bias save to contend that in making the costs order identified in ground 2 and in failing to make the information identified in ground 3, the primary judge further demonstrated actual or apprehended bias. This ground too has no prospect of success. 26 Accordingly, the application was dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley.

SCHEDULE OF PARTIES ACD 45 of 2022 Respondents Fourth Respondent: COMMONWEALTH OF AUSTRALIA