Edwards v Nine Network Australia Pty Limited

1. It is necessary to first identify the grounds upon which Ms Edwards contends that I should recuse myself on the basis of apprehended bias. I will then briefly consider the applicable principles and apply those principles to the facts of this case and Ms Edwards' contentions.

Ms Edwards' grounds for alleging apprehended bias

1. Ms Edwards has essentially identified three grounds in support of her allegation of apprehended bias.
2. The first ground is that in shortly after I delivered the costs judgment I had lunch with senior counsel who represented Nine Network in the defamation proceeding.
3. The second ground is that Ms Edwards alleges that I made several disrespectful and discourteous remarks towards her during case management or interlocutory hearings in January, February and August 2025. Ms Edwards characterised herself as being a "vulnerable litigant" in that context.
4. The third ground was that there was said to be an unreasonable delay in handing down the liability judgment and that in a "series of adverse credibility findings and comments regarding [Ms Edwards'] evidence in the liability judgment.

1. In Rush v Nationwide News Pty Limited (No 8) [2019] FCA 1382 at [16]- [29], I summarised and discussed the applicable principles where a litigant applies for a judge to disqualify himself or herself on the grounds of apprehended bias. What follows is an adaptation of what was said in that judgment.
2. The relevant principles in relation to apprehended bias are well-settled. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, Gleeson CJ, McHugh, Gummow and Hayne JJ conveniently summarised the principles in the following terms (at [6]-[8]):

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), 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. It is convenient to refer to it as the apprehension of bias principle.

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.

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.

(Footnotes omitted.)

1. The two-step test in Ebner requires the identification of what might affect the judge's impartiality and its logical connection with the possibility of departure from impartial decision-making in the case at hand.
2. The fair-minded lay observer is "postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues": Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [12]. While the fictional or hypothetical observer is not a lawyer and is not assumed to have a detailed knowledge of the law, they are taken to be reasonable and to not be "wholly uninformed and uninstructed about the law in general or the issue to be decided": Johnson at [53] (Kirby J, citing R v George (1987) 9 NSWLR 527 at 536 (Street CJ)). It is necessary to attribute to the fair-minded lay observer knowledge of all the circumstances of the case: CUR24 v Director of Public Prosecutions (2012) 83 NSWLR 385; [2012] NSWCA 65 at [39].
3. The "reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice": Johnson at [13]. That includes "the exigencies of modern litigation" and modern case management practices: Johnson at [13] . The plurality in Johnson noted the following in that regard (at [13]):

... At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. ...

1. Similarly, in British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283; [2011] HCA 2, Heydon, Kiefel and Bell JJ referred to the active role a modern judge is likely to play in case management and said (at [140]) that "[t]rial judges are frequently required to make rulings excluding irrelevant and prejudicial material from evidence [and] [r]outine rulings of this nature are unlikely to disqualify the judge from further hearing the proceeding".
2. In Doggett v Commonwealth Bank of Australia [2019] FCAFC 19, the Full Court (Kerr, Davies and Thawley JJ) said as follows in relation to claims of apprehended bias based on rulings in interlocutory proceedings or judgments (at [11]):

Claims of apprehended bias arise not infrequently, as they have in this appeal, in respect of interlocutory proceedings. The usual position in relation to interlocutory proceedings is that an apprehension of bias is not per se manifested by an unfavourable finding. That is because often there will be instances prior to a final decision where a judge will require steps to be taken or not taken which disappoint one side or another in a proceeding. It is inherent in the interlocutory process that such preliminary decisions are made. Unfavourable findings, in such circumstances, are not to be taken by a fair-minded person as an expression that the judge has other than an impartial and unprejudiced mind in relation to the substantive proceeding. ...

1. In Re J.R.L.; Ex parte C.J.L (1986) 161 CLR 342; [1986] HCA 39, Mason J said the following in relation to allegations of apprehended bias based on the conduct of a judge during the litigation, which would include statements and findings made in interlocutory judgments (at 352):

It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established": Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

(Footnotes omitted.)

A court of review must be careful not to exaggerate the significance of actions or statements made by a judge in the course of a proceeding. There must be "strong grounds" (Reg. v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd.) for inferring the existence of a reasonable suspicion.

(Footnote omitted.)

1. The requirement that an apprehension of bias, based on judicial conduct, be "firmly established" was also emphasised in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31 at 100 (Gaudron and McHugh JJ) and British American Tobacco at [45], where French CJ said it "gives content to the requirement that an apprehension of bias, in that class of case, be reasonable" (see also [71] (Gummow J)). French CJ and Gummow J were in dissent in British American Tobacco, though the dissent mainly turned on the application of the facts to the relevant principles.
2. Apprehended bias will not generally be established by "pointing to adverse findings" in the judgment, even where the findings involve strong adverse credit findings: Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 at [234] (Ward JA, Basten JA and Emmett AJA agreeing). Similarly, the fact that "a judge has not accepted submissions, or has taken a view of evidence in a way that one of the litigants disagrees with or asserts is wrong in principle, is not enough to establish a reasonable apprehension of bias": Knaggs v Director of Public Prosecutions (NSW) (2007) 170 A Crim R 366; [2007] NSWCA 83 at [95]; see also SZCOS v Minister for Immigration & Citizenship [2008] FCA 570 at [36]; Spalla v St George Wholesale Finance Pty Ltd [2006] FCA 416 at [14]; DOQ17 v Australian Financial Security Authority (No 2) (2018) 363 ALR 681; [2018] FCA 1270 at [33]. In Hamod v State of New South Wales (No 11) [2008] NSWSC 967, Harrison J said (at [20]) that unfavourable decisions against a party "are not, and can never be, without more sufficient to support or establish the existence or manifestation of an objective apprehension of bias".
3. Where "numerous separate aspects are relied upon to suggest a reasonable apprehension of bias, it will usually be necessary to assess the individual elements separately and then cumulatively": Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240 at [176] (Basten JA, with Allsop P and Macfarlan JA agreeing); see also Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [114]; IOOF Australia Trustees Ltd v SEAS Sapfor Forests Pty Ltd (1999) 78 SASR 151; [1999] SASC 249 at 192; Tarrant J, Disqualification for Bias (Federation Press, 2012), 301.
4. I should add an additional observation, particularly in light of one of the statements made by me which Ms Edwards contended demonstrated apprehended bias. That statement was that, after Ms Edwards raised with me the fact that I had lunched with senior counsel for Nine Network after the costs judgment, but indicated that she did not intend to apply to have me recuse myself, I said (obviously flippantly) that "I would be delighted to disqualify myself" and that "would be my happiest day". More will be said of that exchange later. The observation that I would make in this context, however, is that a judge should not too readily recuse himself or herself because that would in some respects amount to an abrogation of the judge's duty to determine matters that come before him or her. As Lee J observed in Westpac Banking Corporation v Forum Finance Pty Limited (Apprehended Bias Application) [2022] FCA 981 at [16], a judge has a "duty to sit, which has been described as equally strong as the duty not to sit where disqualified".

1. I am not persuaded that any of Ms Edwards' grounds and submissions demonstrates apprehended bias. I am not persuaded that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the remaining question or matter that I am required to decide for any of the reasons advanced by Ms Edwards.

1. As for the lunch with senior counsel, I have no recollection of the lunch, or having received an email invitation from counsel to have lunch, though I do not doubt that both events occurred. The lunch, however, must be considered in context. I have known senior counsel who appeared for Nine Network for many years as we were colleagues at the Bar. The lunch occurred many months after I handed down the liability judgement which, as indicated earlier, was in Ms Edwards' favour. The lunch also occurred after I handed down the costs judgment, which was also to a large respect in Ms Edwards' favour. The only remaining outstanding issue that could arise in the proceedings concerned the adoption of the referee's report in respect of the lump sum costs order. It would appear that both senior counsel and I did not imagine or envisage that there would be any issue in respect of the adoption of the referee's report. We were both sadly mistaken in that regard.
2. It is indeed regrettable in the circumstances that I lunched with senior counsel after the costs judgment. Not because it was an unpleasant or disagreeable lunch. I doubt that it was, though (without wishing to offend the said senior counsel) I have no recollection of it. The lunch is regrettable because, as events transpired, the matter had not been finalised at that point. But for the factors or considerations to which I am about to turn, I would accept that the lunch may have provided a basis for me to disqualify myself from further hearing this matter.
3. The difficulty for Ms Edwards' contentions based on the lunch, however, are twofold.
4. First, Ms Edwards first raised the issue concerning my lunch with senior counsel at a case management hearing on 30 January 20025 when Nine Network was still an active party to the proceeding because it was challenging aspects of the referee's report in respect of the lump sum costs order, as was Ms Edwards. At that point, however, Ms Edwards made a conscious and deliberate decision not to ask me to recuse myself. She has accordingly waived her right or opportunity to make such an application at this later point in time: see Smits v Roach (2006) 227 CLR 423; [2006] HCA 36 at [43]- [48].
5. Second, Nine Network is no longer an active party to this proceeding as it and Ms Edwards ultimately settled the issue in respect of the referees' report and the lump sum costs order. Nine Network has been excused from appearing any further in the matter. Senior counsel for Nine Network has no ongoing role in the proceeding. It is, in those circumstances, impossible to see how the fact that I had lunch with senior counsel for Nine Network many months ago could provide a basis for a finding of apprehended bias.

1. Two of the remarks identified by Ms Edwards as providing the basis for a finding of apprehended bias have already been referred to, those being the remarks about recusing myself. The first point to note is that those remarks were not made to Ms Edwards. They were in fact made to senior counsel in the context of asking him if he wanted to say anything about Ms Edwards' mention of the lunch and the fact that she was not seeking to recuse myself. Senior counsel indicated that his instructing solicitors had disclosed the lunch to Ms Edwards. Other than that, senior counsel had nothing to add in light of the fact that Ms Edwards was not seeking to have me recuse myself.
2. In my view, the obviously flippant remarks, while perhaps regrettable, do not provide the basis for a finding of apprehended bias.
3. The only other remarks identified by Ms Edwards as providing a basis for apprehended bias was a statement by me that Ms Edwards was trying my patience, and two remarks made by me which were to the effect that Ms Edwards should refrain from telling me what advice she had received about her application and should instead advance submissions. When considered in the context of the exchanges that occurred during the case management hearings in question, none of those remarks are capable of making out a case of apprehended bias. There were some exchanges between me and Ms Edwards that some might consider to be robust, however the exchanges I had with senior counsel in the January and February case management hearings were undoubtedly far more robust and borne of frustration about the attitude of the parties and the conduct of the proceeding more generally.
4. I should also add in this context that I reject Ms Edwards' characterisation of herself as a vulnerable litigant. True it is that she is now representing herself. She is, however, a practicing barrister of some years standing. She is, or should be, well-equipped to represent herself. She did not advise the Court prior to any of the relevant case management or interlocutory hearings that she had been diagnosed with post-traumatic stress syndrome, as she contends, or that she was impeded in any way in the conduct of the proceeding by that diagnosis.

1. It may be accepted that there was a delay between the delivery of final submissions and the handing down of the liability judgment. As is readily apparent from the liability judgment itself, however, the proceeding involved a degree of difficulty and complexity.
2. Putting that issue to one side, the fundamental problem for Ms Edwards is that she has failed to articulate any logical connection between the delay in handing down the liability judgment and the alleged apprehended deviation from my deciding the remaining issue on its merits. Ms Edwards contends that the delay caused her substantial professional and personal harm. Putting aside the fact that Ms Edwards assertion in that regard is unsupported by any evidence, there is no logical connection between that factor and any apprehended deviation from my determining the remaining issue on the merits. I should also observe in this context that Ms Edwards succeeded in the liability judgment and mostly succeeded in the costs judgment.
3. As for Ms Edwards' contention that adverse credibility findings were made against her in the liability judgment, that contention is not borne out by the pinpoint references given by Ms Edwards to paragraphs in the liability judgment that are said to be adverse credibility findings. I did observe in one paragraph of the liability judgment (at [163]) that Ms Edwards was not an impressive witness, but that finding, considered in context, is far from an adverse credibility finding. Indeed, the finding turned mostly on Ms Edwards' demeanour as a witness, not the credibility or the reliability of her evidence. Moreover, there is no real indication that it will be necessary for Ms Edwards to give evidence in opposition to the Intervener's claim to be entitled to a lien, or that if Ms Edwards does give evidence that her evidence will be subject to any challenge, or that any challenge to her evidence will include any challenge to her credibility or the reliability of her evidence.
4. In any event, I am not persuaded that the modest and moderate finding in the liability judgment in relation to Ms Edwards' demeanour provides any basis for a finding of apprehended bias. I am not satisfied that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the remaining question or matter that I am required to decide by reason of that finding.
5. It follows that Ms Edwards' application for me to recuse myself must be dismissed.

1. Ms Edwards' cross-vesting application is said to be made pursuant to s 5(2)(b)(ii) of the Cross-vesting Act. That subsection concerns the transfer of proceedings from a Supreme Court to a Supreme Court of another State or Territory. Given this, I have assumed that the reference to that provision was in error and that Ms Edwards in fact relies on s 5(4) of the Cross-vesting Act which is in the following terms:

(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Federal Court or the Federal Circuit and Family Court of Australia (Division 1) (in this subsection referred to as the first court); and

(b) it appears to the first court that:

(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of a State or Territory and it is more appropriate that the relevant proceeding be determined by that Supreme Court;

(ii) having regard to:

(A) whether, in the opinion of the first court, the relevant proceeding or a substantial part of it would have been incapable of being instituted in that court, apart from this Act and any law of the Australian Capital Territory or the Northern Territory relating to cross‑vesting of jurisdiction; and

(B) whether, in the opinion of the first court, the relevant proceeding or a substantial part of it would have been capable of being instituted in the Supreme Court of a State or Territory, apart from this Act and any law of a State or Territory relating to cross‑vesting of jurisdiction; and

(C) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub‑subparagraph (B) and not within the jurisdiction of the first court apart from this Act and any law of the Australian Capital Territory or the Northern Territory relating to cross‑vesting of jurisdiction; and

it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of a State or Territory;

the first court shall transfer the relevant proceeding to that Supreme Court.

1. The principles that apply in determining a cross-vesting application of the sort currently under consideration are well settled. They were conveniently summarised in the following terms by Bromwich J in Edwards v Hyundai Motor Company Australia Pty Ltd; Sims v Kia Australia Pty Ltd [2023] FCA 1134 at [11]- [14]:

The main question to be determined on a transfer application under s 5(4) of the Act is where the balance lies in properly serving the interests of justice, and with there being no presumption favouring any party of no onus to be discharged: Amalia Investments Ltd v Virgtel Global Networks NV (No 2) [2011] FCA 1270; 198 FCR 248 at [34] and [40] and Civil & Civic Corporation Pty Ltd v Nova Builders Pty Ltd [2022] FCA 1515 at [12]. It is therefore sufficient that it be demonstrated that the SCV be the more appropriate or natural forum in all the circumstances: BHP Billiton Ltd v Schultz [2004] HCA 61; 221 CLR 400 at [14] (reproduced in Gleeson at [15]); Valceski v Valceski [2007] NSWSC 440; 70 NSWLR 36 at [69] (reproduced in Gleeson at [20]).

A threshold issue in s 5(4)(b)(i) of the Act is whether there is some causal element, such as commonality of facts or parties, so as to render the proceedings in the different courts able to be characterised as associated, connected or related. That may or may not be sufficient: Commissioner of Taxation v Residence Riverside Proprietary Limited as Trustee for the D&J Discretionary Trust and as Trustee for the D&J Investment Trust [2013] FCA 720 at [13]- [14]. In Residence Riverside at [17], it was observed that it will be generally relevant to the question of the interests of justice to consider such things as the stage of the proceedings in each court, the nature of the proceedings, any commonality or diversity of parties, the risk of conflicting outcomes if the transfer does not take place, any available cost-benefit analysis, the potential risk of an unnecessary drain on public resources (including judicial) and whether either court has any advantage in terms of expertise.

The power of transfer must be exercised whenever it appears that it is in the interests of justice that it be exercised, and it is not necessary that the existing court be clearly inappropriate: Schultz at [10]. If one court is shown to be more appropriate than the other, however so slightly, transfer to the more appropriate court is mandatory: Valceski at [70]. The court which was the initial choice does not need to justify not exercising jurisdiction: Schultz at [25].

This Court is also bound to observe the mandate in s 37M of the Federal Court of Australia Act 1976 (Cth) that the just resolution of disputes should be facilitated as quickly, inexpensively and efficiently as possible: Civil & Civic at [20]. Where the transfer will reduce the costs of litigation, this may be a significant factor in favour of a transfer to a State court, as noted by a number of judges in this Court: see Diakovasili v The Order of AHEPA NSW Incorporated [2022] FCA 1465 at [3] and [10]; Shields v Williams [2019] FCA 413 at [6]- [8]; Prasad v Google LLC [2020] FCA 67 at [30]. The other side's consent to the proposed transfer is a significant consideration: Shields v Williams at [6].

1. I am satisfied that the remaining issue in this proceeding concerning the existence of a lien is related to another proceeding pending in the Supreme Court. As noted earlier, Ms Edwards has commenced proceedings against the Intervener in the Supreme Court in which she alleges, among other things, that any costs agreement between her and the Intervener is void by reasons of circumstances that bring into play ss 178, 182 and 185 of the Legal Profession Uniform Law 2019 (NSW), that the Intervener made misleading and deceptive representations and engaged in misleading and deceptive conduct while retained by Ms Edwards and was negligent in providing advice to her. That proceeding is related to this proceeding because the issue concerning the existence of the lien arises out of the solicitor and client relationship that existed between Ms Edwards and the Intervener and Ms Edwards' opposition to the lien is based in part on what she alleges was disentitling conduct on the part of the Intervener. Much of that allegedly disentitling conduct is the subject of the Supreme Court proceeding.
2. I am also satisfied that it is more appropriate for the discreet issue that remains for determination in this proceeding would more appropriately be determined in the Supreme Court in the context of the proceeding currently pending in that court. That is so for a number of reasons. The disentitling conduct alleged by Ms Edwards involves, among other things, alleged breaches or contraventions of State legislation, the Legal Profession Uniform Law 2014 (NSW). That issue is more appropriately dealt with in the Supreme Court which routinely deals with disputes involving that legislation, as well as disputes involving disputes between solicitors and clients concerning fees and liens. The Supreme Court also regularly considers and determines cases involving alleged professional negligence by solicitors. This Court does not. It would in my view plainly be preferable for the fairly discreet issue that remains in this Court to be dealt with in the context of the broader dispute between Ms Edwards and the Intervener arising from their relationship of solicitor and client.
3. It may be accepted that the proceeding that Ms Edwards commenced in the Supreme Court could also have been commenced in this Court given that Ms Edwards' allegations include contravention of s 18 of the Australian Consumer Law (ACL) (contained in schedule 2 to the Competition and Consumer Act 2010 (Cth). That, however, would appear to be only one relatively small aspect of the Supreme Court proceedings. It is also clearly the case, as the Intervener accepts, that the Supreme Court has jurisdiction to entertain Ms Edwards' claims under the ACL. There is also no dispute that the Supreme Court has jurisdiction to hear and determine the Intervener's claim in respect of the existence of a lien.
4. The Intervener submitted that this Court is already apprised of the issues raised by Ms Edwards in opposition to the Intervener's claims in respect of a lien. It may be accepted that Ms Edwards ventilated many of her claims of disentitling conduct in her submissions in opposition to the Intervener's interlocutory application seeking the payment into Court of the costs order monies. That, however, is the limited extent to which this Court could be said to have been apprised of the issues. No evidence has been adduced in respect of those claims and the Court was not required to give any detailed consideration to them when determining the Intervener's interlocutory application. I accept that the proceedings in the Supreme Court are at an early stage. It appears to me, however, that the issue in respect of the existence of a lien could be dealt with as an interlocutory or preliminary issue in those proceedings. That, however, would plainly be a matter for the Supreme Court.
5. I am, in all the circumstances, satisfied that it is in the interests of justice for the remaining issue in this proceeding to be determined by the Supreme Court, which is the more appropriate and natural forum for the resolution of that issue.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney.