FKP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Course of the hearing on 15 June 2018 7 The Reasons contain a detailed discussion of the course of the proceedings on 15 June 2018. 8 The FCCA Judge notes at [4] that Mr Silva sought to read an affidavit made by FKW17 on 4 January 2018 (FKW17's affidavit). That affidavit referred to certain advice said to have been given (or not given) by the applicants' former lawyers as a reason for why the applicants had not filed an application for judicial review within the time provided for by s 477(1) of the Migration Act.

First phase 9 The Reasons indicate that, in what the FCCA Judge described as the "first phase" of the hearing, the following occurred. 10 First, Mr Swan objected to FKW17's affidavit being read on the basis that (having regard to communications the day before the hearing) the applicants sought to maintain their claim to client legal privilege in the former lawyers' advice. Mr Swan relied on s 135 of the Evidence Act 1995 (Cth) to seek to exclude FKW17's affidavit from evidence on the basis that the Minister was not in a position to test that advice. Mr Swan confirmed that the Minister had not sought to obtain documents relating to the legal advice referred to in FKW17's affidavit by way of subpoena or a notice to produce, but Mr Swan sought to lay a foundation for reliance on s 135 having regard to email communications the day before with Mr Silva [5]-[7]. 11 Second, there followed an interchange between Mr Silva and the FCCA Judge set out at [7] in relation to whether privilege had been waived as follows: HIS HONOUR: --- do you accept that you waive[d] privilege or not? MR SILVA: No, your Honour, because I had set out - I refer your Honour to an authority and I will also take your Honour to section - that deals with this disclosure, 122 of the Evidence Act, 122(3). The disclosure under 122(3) says: The client or party knowingly and voluntarily disclosed the substance of the evidence to another person. The court says - the authorities of the Court of Appeal says another person is not court so once the information disclosed to court it is not a disclosure and I want to take your Honour to an authority on that. So our version is it does not be disclosed and I have a copy for HIS HONOUR: Well, it's not a question of disclosure; it's a question of whether you've acted inconsistently with asserting your privilege. MR SILVA: Beg your pardon, your Honour? HIS HONOUR: It's a question of whether you've acted inconsistently with asserting the privilege. That's the question, isn't it? MR SILVA: Beg your pardon? HIS HONOUR: Section 122(2) says: This division does not prevent … MR SILVA: Yes, that's clear, your Honour, sorry, on subsection (3), (3)(a). HIS HONOUR: Yes. MR SILVA: The words HIS HONOUR: Yes, but before you get there you must look at subsection (2) which is - expressly said: …without limiting subsection (2) … MR SILVA: Yes. Yes. HIS HONOUR: And subsection (2) says: …does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence … MR SILVA: Correct. HIS HONOUR: Well, if you - do you accept that in this affidavit, your clients purport to give evidence about what passed between them and their lawyer? MR SILVA: Yes. Yes. That's the point. That's the point. It was not disclosed to another person; it's to the court. HIS HONOUR: No, no. Do you accept in this affidavit that your clients are deposing to communications that pass between - and they're publishing that? MR SILVA: Yes. Yes. For the purpose of the court. HIS HONOUR: Well, you publish it to the world now because I've read the affidavit. MR SILVA: Well, the information is being disclosed to the court about the court proceedings and HIS HONOUR: It has been - you can't have a greater disclosure than tendering evidence in the court because now it's in the public domain. The Sydney Morning Herald can report on what's in this affidavit if it wanted to. MR SILVA: Yes. Yes. HIS HONOUR: So you can't get a greater disclosure than that, can you? MR SILVA: Your Honour, the - I want you - take your Honour to the authority because HIS HONOUR: No, no. I'm looking at the statute first and then you can take me to the authority. MR SILVA: Yes. Yes. Well, subsection HIS HONOUR: You don't accept at the moment that there has been a disclosure of communications. MR SILVA: Yes. Correct. Correct. HIS HONOUR: Well, how can you - how can you say that when it's in an affidavit? MR SILVA: Your Honour, it's in an affidavit to the court. HIS HONOUR: What do you mean by that? MR SILVA: Well, it has been disclosed to the court. It is not disclosed to another person. HIS HONOUR: Well, do you accept that it can be - that if the Sydney Morning Herald wanted to report on this proceeding, it could report on what's in this affidavit? MR SILVA: Correct. That's - that's HIS HONOUR: So why is - so why do you say it has been disclosed to the court? MR SILVA: Well, your Honour we are looking at that stage now where has it been disclosed to another person? No, it has just been disclosed to court at the moment. Maybe the next stage after it has been accepted, that's a different matter, but for now it has only been disclosed to the court. HIS HONOUR: What do you mean by "accepted"? MR SILVA: Well, it's - this affidavit is before the court and we are in the process of dealing with whether there has been a waiver or not. So this information only before the court at the moment. HIS HONOUR: Sorry. Sorry. I don't - I've asked you what you mean by that. MR SILVA: Yes. HIS HONOUR: You've said you've read - you want me to read the affidavit. MR SILVA: Correct. HIS HONOUR: I've read it. It's in evidence now before the court. MR SILVA: Yes. Once read. Once read. HIS HONOUR: I've read it. MR SILVA: Correct. HIS HONOUR: So do you accept it's - now having been read, that your client is disclosing to the world the contents of what would otherwise have been confidential communications between them and their lawyer. MR SILVA: Yes. Yes. Not at the moment, once it's accepted. HIS HONOUR: Not at the moment? MR SILVA: Since it has been read. If it is read, then that's fine, but before it has been read HIS HONOUR: I've read it. MR SILVA: Well, now it's disclosed. But before that HIS HONOUR: So what has that got - well - well MR SILVA: Before that it was not disclosed because the authorities say when something is disclosed to the court, it's not disclosed to another person. Therefore, there's no disclosure. HIS HONOUR: But you gave this affidavit to the Minister. MR SILVA: Well, once you serve something to the court, we have to by law give a copy to the Minister. HIS HONOUR: Right. So what happens now? Now it's waived? MR SILVA: Correct. HIS HONOUR: And Mr Swan can make a call for all documents? MR SILVA: Correct. Yes. HIS HONOUR: Okay. If a call were made now MR SILVA: Yes. HIS HONOUR: Mr Swan, can you formulate a call of documents that you would require? MR SILVA: Your Honour, one other important matter is that the affidavit was filed on 4 January and it's only last evening there has been a request about this matter and Mr Swan makes a big issue of the communication yesterday, but it has been there for six months and nothing has been done. HIS HONOUR: Yes. Something was attempted to be done yesterday MR SILVA: Correct. HIS HONOUR: and you said they couldn't communicate with the lawyer. You wouldn't waive privilege. That's what has been said against you. MR SILVA: Yes, I - we didn't - we didn't waive the privilege and until now only once it's accepted it's a different matter, but before that it wasn't read. HIS HONOUR: And had a subpoena been issued for these documents, you would have made MR SILVA: Yes. Yes. HIS HONOUR: and there was a hearing about privilege you would have made then the submission you're making to me now. Is that right? MR SILVA: Beg your pardon, your Honour? HIS HONOUR: Had the Minister issued a subpoena to the lawyer or issued a notice to produce to your clients calling for communications between your clients and the lawyer you would have - and there was a dispute about that and I had a hearing before today would you have been making the same submission to me then as you are now, that is to say, well, privilege has not been waived and it will not be waived until the affidavit is read? MR SILVA: Yes. Yes. Correct, your Honour. HIS HONOUR: All right. So even if the Minister had done anything about it you would have still made the submission that you're making to me now and if you were correct, we will be in the position that we are in now. Is that right? MR SILVA: Yes. Yes. Yes, your Honour. HIS HONOUR: All right. So why do you say that - what's the relevance according to your view of how this section operates MR SILVA: Yes. HIS HONOUR: of the Minister not having anything since it received the affidavit? MR SILVA: Well, the point that I was trying to make, your Honour, was that there was ample opportunity for six months. Nothing has been done. And last evening, a request is being made and my friend made a big issue of the fact that we haven't responded to that. So all I'm saying is that we - our version is it has not been waived and therefore we came to the court with the view that it has not been waived, but as your Honour said, once it's admitted, it's a different matter. So that's all. HIS HONOUR: Well, that's not what I've said. That's what you're submitting. I haven't accepted that. MR SILVA: Well, that's what I'm saying here. 12 The "authority" to which Mr Silva referred was not tendered during the hearing on 15 June 2018. 13 The FCCA Judge said the following of the exchange recorded at [11] above: 8. It should be apparent from this exchange that I initially had some difficulty understanding the grounds on which Mr Silva was submitting that privilege over the communications between the applicants and their former lawyer deposed to in [FKW17's] affidavit had not been waived, given the applicants had disclosed those communications in an affidavit which they filed, and which they served on the Minister, and which Mr Silva said he proposed to have read in the hearing before me. In the course of the exchange, and in particular, when Mr Silva said that "once you serve something to the court, we have to by law give a copy to the Minister", I understood Mr Silva was in effect submitting that even though the applicants had filed and served an affidavit disclosing communications between themselves and their former lawyer, the affidavit was privileged at the time it was created because it was created for the substantial purpose of this proceeding, and that the affidavit maintained its privileged status even though the applicants filed and served it. In other words, Mr Silva appeared to me to have been relying on the proposition, for which there is authority [citing Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3, [15]], that "statements or affidavits filed and served in proceedings, but not read in open court, remain … subject to legal professional privilege". It also became clear to me, however, that Mr Silva submitted, or at least accepted, that once the affidavit was "accepted by the court", privilege over the communications deposed to in [FKW17's] affidavit was waived; and by "accepted by the court" I understood Mr Silva to mean "read" in the sense of the matters deposed in the affidavit becoming evidence in the proceeding. 9. This part of the hearing ended with what I understood was Mr Silva's accepting that [FKW17's affidavit] had been read, that its contents had therefore been "disclosed", that privilege in relation to the communications deposed to in the affidavit has been waived, and that Mr Swan could make a call for documents relevant to the communications deposed to in the affidavit. Having arrived to that point, it was unnecessary for me to make any ruling, and therefore hear any further submissions about, whether privilege had been waived earlier. In effect, I proceeded on the assumption, but without making any ruling, that Mr Silva was correct in his contention that by filing and serving the affidavit that disclosed confidential communications between the applicants and their former lawyers the applicants had not waived privilege, and that the affidavit maintained its privileged status until such time as it was read. Phase 1 of the hearing, therefore, ended on what I understood had been accepted by Mr Silva, namely, that [FKW17's] affidavit had been read into evidence, and that the privilege that existed in relation to the communications deposed to in the affidavit had been waived. I understood Mr Silva accepted this was his position. As I will discuss later, Mr Silva resiled from this position at the recusal hearing on 21 June 2018, claiming that he had accepted at the hearing of 15 June 2018 that the affidavit had been read because of what, for the first time, the applicants claimed was my having "bullied" Mr Silva.

Second phase 14 The "second phase" dealt with two matters: [10]. The first was making arrangements for production of the documents relevant to the matters dealt with in FKW17's affidavit. The FCCA Judge says that one source was the applicants themselves, and he permitted time for Mr Swan to formulate a call for the production of documents. The other source was the applicants' former lawyers. His Honour records that: Shortly before 11:28 am Mr Swan made a call, as revealed by the following extract of the transcript: HIS HONOUR: All right. Now, do you wish to make a call now? MR SWAN: Yes, your Honour, we call for production of all documents containing or referring to advice received by the applicants from Christopher Levingston and Associates in relation to the applicant's attendance at the tribunal hearing and the steps the applicant may take to challenge the tribunal's decision or otherwise seek ministerial intervention. HIS HONOUR: All right. So that's the call. You might give a copy of what you've read out to Mr Silva. MR SILVA: Yes, I'm happy HIS HONOUR: And my direction will be that MR SILVA: No, I don't oppose that. HIS HONOUR: the - and my - the - that call will be made again at 2.15. MR SWAN: Quite. HIS HONOUR: Very well. The court - we will adjourn the matter till 2.15. 15 The FCCA Judge then notes that the matter resumed at 12.04 pm because he had been told that Ms Anang, an employee of the former lawyers, had indicated that she would not do anything without a Court order. His Honour then formulated an order requiring production of electronic files maintained by the former lawyers in relation to the applicants: [11]. 16 The second matter dealt with in the "second phase" was a suggestion made by the FCCA Judge that the hearing be conducted on the assumption that the matters deposed to in the applicants' affidavit are true. If the application was dismissed, there would be no need for a hearing on whether the affidavits deposed to were true, but if the applicants succeeded, there would then be a hearing. His Honour noted that "I could not and did not attempt to impose [this proposal] on the parties" and it "did not appeal to Mr Silva": [12].

Third phase 17 The "third phase" of the hearing commenced at 2.20 pm. His Honour noted (at [13]) that his associate had not received any communication from Ms Anang. Mr Swan renewed his call for the documents. It became apparent that Mr Silva had not requested the applicants to search for documents the subject of the call. Mr Silva initially said that he did not "understand this to be a call" and he responded "no" to a question from the FCCA Judge concerning whether he had experience in court of an opponent calling for the production of documents. His Honour sets out transcript of his interchange with Mr Silva as follows: HIS HONOUR: But you know, don't you, that Mr Swan is interested to know if your client has documents? MR SILVA: Yes. HIS HONOUR: Do you know that? MR SILVA: Yes. My understanding was that, your Honour HIS HONOUR: Well, just wait a minute. MR SILVA: Yes. HIS HONOUR: And I'm going to ask you, since it became apparent to you that Mr Swan wants those documents MR SILVA: Yes. Yes. HIS HONOUR: have your clients made inquiries today to obtain those documents? MR SILVA: No, your Honour, because HIS HONOUR: Why not? MR SILVA: Because it was not - we didn't understand that it was being asked from us. That was an honest thing, your Honour, otherwise we were - because we were expecting all the documents from Christopher Levingston and HIS HONOUR: Look, your client has put on an affidavit about advice that they received and haven't received. MR SILVA: Yes. HIS HONOUR: They put on an affidavit. MR SILVA: Yes. HIS HONOUR: Your client has chosen not to annex those documents in the affidavit. MR SILVA: That's correct, your Honour. HIS HONOUR: Right. And it's clear to me that Mr Swan wants to see if your client has any of those documents. MR SILVA: Yes. No, it's HIS HONOUR: And you're trying to tell me that you did not understand that your clients would be required to undertake inquiries to produce any of those documents. MR SILVA: Correct, your Honour. That's - that's an honest statement because we were all expecting all documents to come from Ms Anang. HIS HONOUR: Why, when you had documents, you say? MR SILVA: No, because your Honour has made orders that - here - that those documents produced. HIS HONOUR: Yes. There is your clients who may hold documents. MR SILVA: Yes. Yes. HIS HONOUR: And there's a separate individual who may hold documents. MR SILVA: Yes, your Honour. HIS HONOUR: And you're telling me that you understood that all this discussion today was about getting documents from the lawyer, not from your clients? MR SILVA: Correct, your Honour, that's HIS HONOUR: Look, I'm going to adjourn for five minutes just so that I can compose myself MR SILVA: Yes, your Honour. HIS HONOUR: having heard what you've just said to me and I will come on the bench and I will hear what you want me to do. MR SILVA: Yes, your Honour.

Fourth phase 18 At [14], the FCCA Judge records that the hearing resumed eight minutes later, at 2.33 pm. The FCCA Judge commenced by saying "what I have in mind is to adjourn the hearing" but shortly after said that he took it that Mr Swan would be applying for an adjournment, which Mr Swan confirmed. When the FCCA Judge asked Mr Silva for his attitude to an adjournment, he responded that the applicants had filed affidavits on 1-4 January 2018 and it was only the previous evening that there was any attempt to ask for documents or have the applicants available for cross-examination, saying that he "hoped your Honour will take that into consideration". His Honour then records an interchange with Mr Silva from the transcript of the proceedings as follows: HIS HONOUR: All right. Well, I hear that - I'm going to take that to be - I'm going to take that into account but what I understand is your position today was that privilege had not been waived until the affidavit was read. MR SILVA: Correct, your Honour. Yes. HIS HONOUR: And can I then therefore take it MR SILVA: Your Honour, sorry, may I clarify that? HIS HONOUR: Yes. MR SILVA: As far as our communication with Ms Anang was that really we said you can give evidence as long as you don't disclose things about the applicants' case but about the matters like extension and about tribunal, you can. HIS HONOUR: Okay. You said - you said that to MR SILVA: Yes, because we said - because we don't want you damage our case the things that you discussed. That's what we told them. We didn't completely say you can't speak - we said, yes, you can deal with the information, yes. And that will be evident from the emails you will see. HIS HONOUR: All right. All right. Do I take it you oppose the application for an adjournment? MR SILVA: No, your Honour. No. HIS HONOUR: You don't? All right. MR SILVA: No, I think it's right that we should have the information. HIS HONOUR: All right. All right. MR SILVA: And we are not afraid because we think it will be helpful to us so - yes, no problem. HIS HONOUR: Well, I think it's important for all the documents to be in front of the court and that's why I'm going to adjourn or propose to adjourn. MR SILVA: Yes, your Honour. I understand that. HIS HONOUR: But before I do that, can I at least give you an opportunity now to see whether there are any documents that are available to - that are accessible by your client on any mobile device they hold in court. MR SILVA: Yes. Yes. Yes, your Honour. Yes. HIS HONOUR: Whether they have those documents now. MR SILVA: Yes, whatever they have they can send it to some email, your Honour, to the associate, your associates or HIS HONOUR: Well, what I'm going to do is I'm going to give you an opportunity to obtain those instructions. MR SILVA: Yes. Yes. HIS HONOUR: And I'm only dealing with instructions - I'm only dealing with documents that answer the call. By "call" I mean any documents that fall within the description given by Mr Swan. I want you to - I'm going to ask you to obtain instructions from your client whether they can access on their mobile devices any documents that answer the description of the documents in the call. MR SILVA: Yes. Yes. Sure. Sure. Yes, your Honour. HIS HONOUR: And even if it's only a partial call, what I'm going to suggest is that they be produced today and I will deal with the questions of access and what have you. MR SILVA: Yes. Yes. HIS HONOUR: So I will go off the bench for a few minutes to give you an opportunity to obtain those instructions. 19 At [15], the FCCA Judge noted that there were further discussions about Mr Silva obtaining instructions about whether his clients would be able to produce any documents on that day and, if the applicants do have such documents, the mechanism by which they might be produced to the Court. It was envisaged that any documents would be sent to his Honour's associate's email address, and the documents would then be printed and provided to Mr Silva. This part of the hearing concluded with the following exchange: HIS HONOUR: They will be printed out. I will come back on [sic] court. I will give you the documents and then you can say: I produce them. MR SILVA: Yes. Yes. HIS HONOUR: If you have any persisting claim of privilege, you can - and we will deal with the normal things one deals with when documents are produced. MR SILVA: Sure. Yes, your Honour. HIS HONOUR: And then I will make - what I propose to do is just simply adjourn the hearing, appoint a directions hearing which is convenient to counsel and MR SILVA: Your Honour, would half an hour be appropriate? Just have some idea of time so that HIS HONOUR: Well, it's really up to you. I can't imagine it will take you half an hour but if you say it's - look, it's whatever inquiries you need to make of your clients whether MR SILVA: Yes, your Honour. That's from the mobile, yes. HIS HONOUR: From the - I assume they have no other device in here by which they can access documents. MR SILVA: No. No. Yes, I talk to them. HIS HONOUR: All right. So I will adjourn and I will wait until you tell me - tell my associates that you've exhausted your instructions.

Fifth phase 20 At [16], the FCCA Judge recorded that the hearing resumed at 3.31 pm, at which time his Honour noted that his associate had received a telephone call from the former lawyers indicating that Ms Anang would be in a position to comply with the Court's order made earlier in the afternoon by 6 pm and his Honour's associate had been provided with four documents obtained from the applicants' email devices. They were printed and three copies given to Mr Silva; what happened to the documents was a matter between Mr Silva and Mr Swan. The documents were produced and given to Mr Swan, without his Honour having viewed them, which would only occur when tendered at the appropriate time. After his Honour noted that he intended to list the matter for directions on 21 June 2018, the following exchange occurred: MR SILVA: Yes. For this - sorry, I really apologise for this call for production. I didn't - by HIS HONOUR: Mr Silva, I don't think - I manifested anger but I don't think I raised my voice and I don't think MR SILVA: No, your Honour didn't. HIS HONOUR: And I went off to compose myself but I accept you did not understand MR SILVA: No. Yes. HIS HONOUR: incredible as it seemed to me, but I accept that. MR SILVA: Yes. HIS HONOUR: So there's MR SILVA: My office is so far away, your Honour, so I didn't think that HIS HONOUR: No, no. No, I'm just saying that so that you're not leaving here thinking I've got any thoughts that you've done something untoward. MR SILVA: No, your Honour. I understand. HIS HONOUR: Now I may not understand why you didn't understand it, but that's a different issue. MR SILVA: Sure. Sure. HIS HONOUR: All right. MR SILVA: Sure. Sure. No, I didn't actually know by the timeframe so there was something so I'm really sorry about that, yes. 21 The hearing was then adjourned part-heard to 21 June 2018 for directions. The FCCA Judge ordered that the balance of the answer to the call for production of documents made by Mr Swan be adjourned to that hearing. After that, the FCCA Judge decided to "say something about costs", because, after it became apparent that Mr Silva had misunderstood the nature of the call for production, Mr Swan indicated that the Minister would be applying for costs. His Honour went on (at [18]) to record what he said as follows: HIS HONOUR: Now just one other thing. In terms of costs, I'm not going to - I mean it's impliedly reserved, but before people start taking effort about thinking about costs, I urge people to take care about that because on one view, these documents should have been sought before the hearing. That's something the Minister should bear in mind before they make any application for costs about today. Well, in fact that - and although the evidence about what occurred yesterday is not clear, that is a matter that might be countered against your side of the bar table. So all I'm saying is on my view of today, there may be fault on both, and I urge you to consider that before thinking about making orders for costs that have been thrown away by reason of today. The hearing then concluded.

Principles 22 The FCCA Judge noted that the circumstances in which judges should recuse themselves on the ground of apprehension of bias are not in doubt. The correctness of the principles, as set out at [20]-[36], is not disputed.

The course of the application for recusal 23 At [37]-[43], the FCCA Judge summarised the content of a document sent to his chambers on 19 June 2018 (Initiating Document). The basis of the recusal application was (1) a display of partisan behaviour; (2) humiliating Mr Silva "due to misdirected anger". His Honour notes that the Initiating Document is divided into 10 sections and: (1) The first section is headed "Information before the Court on 15/06/8[sic] at the beginning", there are seven matters listed which "would have been self-evident to your Honour", including the Minister not having filed any document "for six months and 11 days until 15/06/18 to challenge the 4/01/18 affidavit". (2) Under the heading "We were model litigants" it is said that the applicants came into the court room on 15 June 2018 "having done everything that needed to be done up until that time like model litigants" noting that the applicants "were quite confident all necessary things have been done since we have seen Mr. Silva being meticulous with his work". The applicants then referred to a conference they had with Mr Silva at 6.00 pm the afternoon before the hearing at which they were informed that the Minister's lawyers had requested that the applicants appear for cross-examination and that "because there was a disclosure [Mr Silva] had to speak to Christopher Livingstone [sic] and Associates to waive the privilege". The FCCA Judge noted that: The applicants stated that they had already advised by letter dated 18 April 2018 that "we claim only a limited privilege over the documents/evidence and the reasons why"; that this was reinforced by letter dated 21 May 2018; and that "we had not claimed privilege blindly over the whole information". They state that "Ms. Anang could have given evidence if she wanted to or had been legally required to be present to give evidence and privilege issue could have been raised at the Court before her evidence". (3) Under the heading "Lawyers for model litigants (The Commonwealth - The Minister for Home Affairs) failed in their duty to their clients, the applicants and the court", the applicants assert that the Minister's lawyers failed to behave like model litigants first, by failing to use available court processes in the months before the proceedings to require the former lawyers or the applicants to disclose documents to them or to the Court, and second, "blaming us the applicants is even worse than that". (4) Under the heading "On the hearing day", the following matters were raised: (a) Mr Swan engaged "in a serious of [sic] sustained attack on us, sometimes referring to verbal communications and it went on and on and [the FCCA Judge] did nothing to stop him and Mr Silva got up and objected twice and [the FCCA Judge] told Mr Silva you will get your chance to speak or something like that". (b) After Mr Swan finished "[the FCCA Judge] did not give Mr Silva any opportunity to address the prejudicial submissions on several matters made by Mr Swan". It is said that the FCCA Judge "should have stopped Mr Swan and given Mr Silva to [sic] respond when each allegation was made rather than letting him go for a while referring to several matters almost inciting [the FCCA Judge] against us". (c) The FCCA Judge asked Mr Silva about disclosure but after Mr Silva said there had been legally no disclosure and he wanted to refer to a "case decision" the FCCA Judge "did not allow him to refer to that case and engaged in agitated discussion… about disclosure", and that the FCCA Judge "did not give him the opportunity to put the case decision to [his Honour]", that case being Macedonian Orthodox Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand (2006) 66 NSWLR 112; [2006] NSWCA 160. (d) At one point the FCCA Judge "even accused the applicants … for not putting the emails in evidence". (e) The FCCA Judge "did not accuse the First Respondents [sic] the same way [his Honour] accused Mr. Silva because they were the one who are supposed to put the evidence to challenge our affidavit". (5) The Initiating Document did not say whether the applicants' complaints were based on actual or apprehended bias. At [42], the FCCA Judge said: The absence from the document of any reference to the fair-minded lay observer could reasonably be taken to have suggested that the complaint made in the Initiating Document was that of actual bias. This impression is reinforced by the absence of any attempt in the Initiating Document to define with any particularity the matters which the applicants claim might lead me to decide their application for an extension of time under s.477(2) of the Act and, if granted, the substantive claims they make in their application for judicial review, other than on their legal and factual merits; or to articulate the logical connection between such factors and the possibility of my deviating from my obligation to consider those claims with impartiality. 24 At [44], the FCCA Judge notes that at the hearing of the recusal application on 21 June 2018, a further ground was stated and the FCCA Judge set out the relevant part of the transcript as follows: HIS HONOUR: . . . I take it that you are still holding to your submission that privilege was not waived until such time as the affidavits were read last Friday. MR SILVA: Your Honour HIS HONOUR: Do you maintain that position? MR SILVA: No. This is my position. Privilege has never waived until now and it was agreed to your Honour's submission that it was waived because I was bullied. HIS HONOUR: By me? MR SILVA: Correct, your Honour, and forgive me for that - for saying that word. And I really say that - I must put that on. 25 At [45], the FCCA Judge noted that Mr Silva later described the conduct by which he was "bullied" as follows: MR SILVA: No, your Honour, with respect. I - because I had - because your Honour - your Honour, when we came to this, your privilege, you were so agitated I got - I said, "What's going on here? I can't go with this because I can't fight with this judge because he's so irritated, agitated, I'll just go ahead and look out on my client's interest because I put to your Honour several times it has to be read and that your Honour said, "I read it" and that - and your Honour also, in some sense - please forgive me - you ..... saying ..... the whole world." And then - and from that I was really uncomfortable. I said, "No. No. There seems to be some kind of agitation here and I don't want to - I don't want to fight. I just want to get on." And then your Honour repeated twice you're ..... by the world ..... 26 At [46], the FCCA states that when he asked Mr Silva whether the allegation was included in the Initiating Document, the following exchange ensued, which "resulted in Mr Silva making an affidavit on which the applicants relied at the hearing on 17 July 2018": HIS HONOUR: All right. Well, just before we adjourn you tell me whether in that document [the Initiating Document] there's any allegation of bullying by me. MR SILVA: Your Honour, if you would forgive me, I - please give me time because this is a very important matter and I can't do it now. HIS HONOUR: Look, you have made a fairly serious allegation MR SILVA: Yes. HIS HONOUR: of gross judicial misconduct directed at me MR SILVA: Yes. HIS HONOUR: which is fine. MR SILVA: Yes. HIS HONOUR: If I've done that, I wear the consequences. MR SILVA: Yes. HIS HONOUR: But I want to know MR SILVA: Yes. HIS HONOUR: having regard to the serious charge that you've made MR SILVA: Yes. HIS HONOUR: whether you've recorded that charge in the document that you filed. MR SILVA: Your Honour, I need to HIS HONOUR: And, if it's not there, I'm going to require some very good explanation from you why it wasn't in there and why you now choose MR SILVA: Yes. HIS HONOUR: to make what's a very very serious allegation against me. MR SILVA: Your Honour, no problem with me giving any explanations but I need really to read through the documents. HIS HONOUR: Well, did you not read it before it came here? MR SILVA: Your Honour, these are serious matters. I really have to read every line. I can't just say things now. HIS HONOUR: Well, you would imagine that if you put in a document a serious allegation of bullying by a judge you would remember that but you don't know. MR SILVA: Well, your Honour, I need time. I can't - I can't give anything now. HIS HONOUR: All right. But you don't know. MR SILVA: Well, I need to look at it. HIS HONOUR: But you don't know. MR SILVA: Not really, your Honour. One has to be sure HIS HONOUR: All right. That's all I wanted to know. MR SILVA: Your Honour, I need to be sure because I don't want to say things without being absolutely sure. 27 At [47], the FCCA Judge notes that he indicated to Mr Silva that, although it was a matter for him whether he provided an affidavit, the FCCA Judge expected that, if an allegation of bullying was not made in the Initiating Document, he would provide an affidavit about why it was not made in that document. His Honour also said that he would like Mr Silva to send a document to his associate which "makes and particularises the allegation of bullying". Mr Silva filed both an affidavit and a document titled "An outline of the Submissions of the Applicants In Relation to the Recusal Application" (AWS). 28 The FCCA Judge noted that the AWS made it clear that the recusal application was based on "apprehension of bias" and it relied on authorities relevant to that ground. However, his Honour said that it did not purport to assess the matters complained of as giving rise to an apprehension of bias by reference to how a fair-minded objective lay observer would assess them. Rather, the matters complained of were assessed on the basis of the perceptions of the applicants and Mr Silva. His Honour noted that, at the hearing on 17 July 2018, Mr Silva said that the applicants' position was that their perceptions and those of Mr Silva are the perceptions that a fair-minded lay observer would have: [49]. 29 At [50], the FCCA Judge finds that the Initiating Document and the AWS do not attempt to articulate any logical connection between the matters complained of and the possibility of his Honour deviating from his obligation to consider the claims (being an application for extension of time under s 477(2) of the Migration Act (extension of time application) and, if granted, the determination of the substantive grounds of the application for judicial review (judicial review application)) he was due to hear on 15 June 2018 according to their legal and factual merit.

"Model litigants" claim 30 In relation to the submission that the applicants were "model litigants", the FCCA Judge acknowledged that it could be accepted that they complied with their obligations with respect to their conduct of the proceedings. His Honour then said that "[t]hat, by itself, however, cannot suggest that the Judge acted in a manner that would give rise to a reasonable apprehension of bias. At most the applicants' being "model litigants", in the sense submitted by the applicants, is a contextual matter that may or may not be relevant to assessing the matters complained of": [52].

Harsh treatment - not affording opportunity to counter prejudicial statements claim 31 In relation to the claim that the FCCA Judge treated the applicants harshly, the FCCA Judge noted that the claim was based on more specific claims: [53]. Those specific claims are addressed at [54]-[81] 32 In relation to the claim that the FCCA Judge did not allow the applicants to object to Mr Swan "attacking us", but instead allowed Mr Swan "to continue with no opportunity to respond to these prejudicial statements", at [55], the FCCA Judge noted the complaint relates to that part of the hearing referred to at [5]-[7] (see [10] above) and that the AWS states that: Mr Swan then engaged in a serious [sic] of sustained attack on us, sometimes referring to verbal communications and it went on and on and your Honour did nothing to stop him and Mr. Silva got up and objected twice and your Honour told Mr. Silva you will get your chance to speak or something like that. Mr Swan continued his attack and during which he also submitted a court decision. (P4L21-P9L42) & (P6L20-27). Once it was finished your Honour did not give Mr Silva any opportunity to address the prejudicial submissions on several matters made by Mr. Swan. It would have been impossible to respond to the statements made by Mr. Swan because there were a number of matters. Your Honour should have stopped Mr. Swan and given Mr Silva to [sic] respond when each allegation was made rather than letting him go on for a while referring to several matters inciting your Honour against us. 33 At [56], the FCCA Judge said that the passages of the transcript referred to in this complaint refer to only to one occasion in which Mr Silva sought to interrupt Mr Swan, and that it was as follows: MR SILVA: Your Honour, there are several issues being canvassed HIS HONOUR: Well, just wait a minute. Mr Swan hasn't finished his submissions. MR SILVA: Yes. There are several issues being canvassed HIS HONOUR: Yes. You will have an opportunity to respond to what Mr Swan says. MR SILVA: Yes. 34 At [57], the FCCA Judge found that this complaint reflects the subjective reactions of the applicants at the time of the hearing on 15 June 2018 and perhaps after it, having reflected on what happened at the hearing. His Honour said that the question, however, is how a fair-minded lay observer would have perceived that part of the hearing having regard to what happened as a whole. At [58], his Honour said that such an observer would have perceived these matters: (1) Mr Swan asserted matters of fact relating to what had occurred before the hearing which he said were relevant to the Minister's objection based on s 135 of the Evidence Act to the reading of FKW17's affidavit. (2) Mr Silva interrupted Mr Swan. (3) When that happened, the FCCA Judge informed Mr Silva he would have an opportunity to respond to Mr Swan. (4) Mr Silva responded to what Mr Swan said on two occasions, the first as set out in [7] (see [11] above) beginning with Mr Silva stating "Your Honour, one other important matter is that the affidavit was filed on 4 January". The second was said to be at [14] (see [18] above) was when the FCCA Judge discussed with Mr Silva his attitude to adjourning the hearing on 15 June 2018 and Mr Silva said that the applications had filed their affidavits on 14 [scil 1-4] January 2018 and it was only in the previous evening that there had been any attempt to ask for documents or require the applicants for cross-examination. (5) By the time that Mr Silva accepted that FKW17's affidavit had been read, and for that reason, privilege over communications referred to in the affidavit had been waived - which occurred early in the course of the hearing - the FCCA Judge, Mr Swan and Mr Silva proceeded on the assumption that what Mr Swan asserted to have occurred before the hearing, so far as that was said to be relevant to privilege, did not raise any issue the FCCA Judge was required to determine. 35 The FCCA Judge said (at [59]) that in assessing this part of the applicants' claims for recusal, it may relevant to note that, at the hearing on 15 June 2018, Mr Silva did not submit that what Mr Swan said from the bar table constituted a "sustained attack on us" or that the FCCA Judge should stop Mr Swan from continuing for that reason or that the only way Mr Silva could respond, having regard to the nature of what Mr Swan was asserting, was to permit Mr Silva to respond serially to each assertion. His Honour then made findings as to the perceptions of a "fair-minded lay observer" at [59]-[60] as follows: 59. … It is reasonable to impute to the fair-minded lay observer an understanding that it is the role of counsel for a party to put to a judge matters that counsel considers to be relevant to the advancement or protection of the interests of the party counsel represents, and for counsel to conduct the case on behalf of the party counsel represents in a manner that, in counsel's judgment, advances or protects the party's interests. Thus, the fair-minded lay observer would have perceived that Mr Silva, as counsel for the applicants, put to the Judge all that he considered to be relevant to the protection or advancement of the applicants' interests in so far as those interests could be or could have been affected by the assertions Mr Swan made; and that Mr Silva otherwise conducted the case on behalf of the applicants in a manner he considered protected or advanced the interests of the applicants. 60. In these circumstances a fair-minded lay observer would not have perceived the Judge as having prevented Mr Silva, acting as counsel for the applicants, from making submissions in response to assertions made by Mr Swan about what had occurred before the hearing. This part of the applicants' claim for recusal, therefore, affords no basis on which a fair-minded lay observer might reasonably apprehend that I might decide the applicants' application for an order under s.477(2) of the Act, and if such order is made, the substantive grounds contained in the application for judicial review, other than on their legal and factual merits.

Claim that applicants were treated harshly based on the FCCA Judge "not allowing the applicants to present the authority on privilege Disclosure and intimidatory language and manner" 36 At [61], the FCCA Judge noted that these complaints were directed to two matters: (1) Mr Silva's attempted reliance on the authority; and (2) Mr Silva having accepted that FKW17's affidavit had been read and that the consequence of its having been read is that the privilege in relation to communications deposed to in the affidavit had been waived. The FCCA Judge stated that "It is not entirely clear, however, on what conduct of the Judge the applicants rely as giving rise to an apprehension of bias, and how such conduct is said to give rise to an apprehension of bias". 37 At [62], the FCCA Judge identified various claims made in the AWS that were relevant: (1) The FCCA Judge "contradicted himself because disclosure and privilege is directly linked"; if "there is no disclosure then how can there be inconsistency in asserting the privilege". (2) There was no disclosure because the affidavit was filed in Court. (3) As follows (emphasis in the original): Firstly, Mr Silva was not allowed in spite of two attempts (it is not fair to ask him to rely for the third time) to refer to the authority that would have sorted the legal issue but because it was prevented in a language which was inflated as to cause concern that his Honour was upset he was pressure [sic] into agreeing that there had been a disclosure. Disclosure to the world (combined with the voice used by His Honour) and use of language: "you can't have a greater disclosure than tendering evidence in the court because it's in the public domain" cause concern that the Judge is no [sic] open is of a very strong view, although legally wrong, Mr Silva had to figure out whether it was worth getting into hostile argument with he [sic] bench. In relation to this claim, at [63], the FCCA Judge said that it was necessary to "untangle" one aspect, noting that the applicants claim here that the FCCA Judge pressured Mr Silva into agreement "that there had been disclosure" but at the hearing on 17 July 2018, Mr Silva confirmed that the matter the FCCA Judge pressured Mr Silva about was agreeing that FKW17's affidavit had been read into evidence. His Honour stated that he did not understand Mr Silva to have submitted that privilege attached to communications deposed to in FKW17's affidavit after the affidavit was read. 38 At [64], the FCCA Judge summarised the conduct which he was alleged to have engaged in concerning these two matters was: a) The Judge proceeding on what is asserted to be an erroneous understanding of the law or [scil of or on] privilege. b) The Judge not allowing Mr Silva to refer to the Macedonian Orthodox Church case. c) The Judge using extreme language and a particular tone or tones of voice to pressure Mr Silva into agreeing with a proposition Mr Silva believed to be wrong, namely, that [FKW17's affidavit] had been read into evidence. 39 At [65], the FCCA Judge noted that, in assessing these claims he had listened to the recording of the hearing and in particular the exchange set out at [7] (see [11] above). The FCCA Judge found that a fair-minded lay observer would have perceived that the Judge manifested a degree of impatience with some of Mr Silva's responses to questions the Judge asked and that impatience was manifested in the tone in which some of the questions were asked. His Honour found that, by itself, it would "not necessarily" lead to the conclusion that a fair-minded lay observer would conclude that the Judge would decide the extension of time application and the judicial review application otherwise than on their legal and factual merits. 40 In relation to Mr Silva's attempt to put the authority before the FCCA Judge and Mr Silva's agreement that FKW17's affidavit had been read, the FCCA Judge found (at [66]) that the fair-minded lay observer would have perceived the following (footnote 62 included at (c)): a) There was an exchange between the Judge and Mr Silva about whether by filing and serving [FKW17's] affidavit the applicants had waived privilege in relation to the communications deposed to in the affidavit. Much of the exchange was devoted to the Judge attempting to understand the basis on which Mr Silva was asserting that privilege continued to attach to the communications deposed to in [FKW17's] affidavit, even though the applicants served the affidavit on the Minister, and even though Mr Silva proposed to rely on that affidavit. b) In the course of the exchange the Judge manifested some impatience with some of the answers Mr Silva gave; but Mr Silva did what a fair-minded lay observer would expect counsel for the applicants would have done in these circumstances, namely, maintain the position for which he was advocating, being that privilege in relation to the communications deposed to in [FKW17's] affidavit was preserved and would be preserved until such time as the affidavit is read. c) The point was reached where the Judge indicated to Mr Silva that he had read [FKW17's] affidavit; and that the affidavit, therefore, was "in evidence now before the court". After further exchanges, Mr Silva accepted that [FKW17's] affidavit had been read, and that, as a consequence, privilege in relation to the communications deposed to in that affidavit had been waived. ([62] I should here record that at the hearing of 21 June 2018 I assumed that [FKW17's] affidavit had not been formally read at the hearing of 15 June 2018. Having read the transcript of 15 June 2018 I am under no doubt that I did formally read [FKW17's] affidavit.) d) From the time Mr Silva accepted that [FKW17's] affidavit had been read, the hearing proceeded on the common assumption that Mr Swan would then be able to call for the production of documents that constituted or which related to the communications deposed to in the [FKW17's] affidavit. That resulted in Mr Swan making a call for documents, and, later in the day, the applicants producing documents that partially answered that call. e) Before the point had been reached where Mr Silva accepted that the reading of [FKW17's] affidavit waived the privilege that attached to the communications deposed to in that affidavit, Mr Silva informed the Judge that he wanted to take the Judge to an authority, and that the Judge said he was looking at the statute first and then Mr Silva could take the Judge to the authority. Mr Silva did not, however, later take the Judge to the authority, and the Judge did not ask that he be taken to the authority, because from the point at which Mr Silva accepted the affidavit had been read and that the affidavit, therefore, was "in evidence now before the court", Mr Swan, Mr Silva, and the Judge proceeded on the assumption that whether or not privilege attached to the communications deposed to in [FKW17's] affidavit before the affidavit was read was not an issue the Judge had to determine. f) As I have already observed, it is reasonable to impute to the fair-minded lay observer an understanding that it is the role of counsel for a party to put to a judge matters that counsel considers to be relevant to the advancement or protection of the interests of the party counsel represents, and for counsel to conduct the case on behalf of the party counsel represents in a manner that, in counsel's judgment, advances or protects the party's interests. 41 The FCCA Judge found (at [67]) that, in the circumstances, a fair-minded lay observer would not have concluded that the FCCA Judge prevented Mr Silva from putting any case or submission he wanted to put to the Judge or that the Judge pressured Mr Silva into agreeing to a proposition with which Mr Silva disagreed. Such an observer would have perceived that, to the extent Mr Silva agreed with any proposition the Judge put to him, he would have done so because, in Mr Silva's judgement, that agreement advanced or at least did not harm the applicants' interests. 42 At [69], to the extent the question is relevant, the FCCA Judge discussed whether he had proceeded on an incorrect understanding of the law in relation to whether privilege attached to communications referred to in FKW17's affidavit. 43 At [70], the FCCA Judge concluded that this part of the claim for refusal afforded no basis on which a fair-minded lay observer might reasonably apprehend the FCCA Judge might decide the extension of time application or the judicial review application other than on their legal or factual merits.

Claim based on allegation that the FCCA Judge accused the applicants for not annexing privileged communications to FKW17's affidavit and engaging in inconsistent behaviour 44 At [71]-[72], the FCCA Judge noted that this claim relates to a statement made by the Judge to Mr Silva that "your client has not chosen to annex those documents in the affidavit". The statement was made in the context is the "third phase" of the hearing discussed at [13] (see [17] above). The FCCA Judge says that he was "seeking to understand from Mr Silva why he failed to understand that the call for production of documents that Mr Swan made at around 11.28 am required Mr Silva to make inquiries of the applicants about whether they held or could access documents that answered the call". His Honour finds that a fair-minded lay observer would not, in that context, have regarded the Judge making that statement as a criticism of the applicants. 45 At [73], the FCCA Judge said that the only basis on which the applicants claim that he accused them of engaging in inconsistent behaviour "appears to be his putting to Mr Silva that the relevant question to address when considering whether privilege has been waived is whether the applicants have acted inconsistently with their claiming privilege". His Honour concludes that a fair-minded lay observer would not have considered that he accused the applicants of acting inconsistently with asserting the privilege but rather that the FCCA Judge was informing Mr Silva of what the Judge considered was the question that had to be addressed in determining whether the applicants had waived privilege over the communications deposed to in FKW17's affidavit.

Harsh treatment claim based on the "call for documents" incident 46 As noted by the FCCA Judge at [74], this part of the claim relates to the Judge adjourning the hearing on 15 June 2018 for a short time to "compose [him]self" after Mr Silva informed him that he did not understand that he was required to make inquiries of the applicants about whether they held documents that answered the call. His Honour notes that, in this part of the claim, the applicants rely on how that "incident" appeared to "the observer", although the observer is not said to be a fair-minded lay observer. The relevant part of the transcript is reproduced at [13] (see [17] above). 47 The FCCA Judge(at [76]-[78]) summarises this part of the AWS as follows: (1) The AWS attempts to explain why Mr Silva did not understand that the call for production of documents required him to make enquiries of the applicants. The FCCA Judge said he was not required to set out the explanation because Mr Silva did not offer that explanation at the hearing and it is apparent from the transcript that the Judge accepted that Mr Silva had genuinely misunderstood what he was required to do in answer to the call. (2) The AWS states that there was "some justification for his Honour to be upset" but (as his Honour read the AWS), the upset the Judge manifested must be seen in the context that "at worst Mr Silva's inability to understand the "call" would have lost the Court a maximum of half an hour" and there was no suggestion that Mr Silva had deliberately defied the call. (3) The AWS submitted as follows: For a judge to adjourn the hearing for a short time to calm himself because he was so upset with the Counsel is an extremely serious thing from the point of view of "the observer". It was intimidating to Mr. Silva for he would have been justified in expecting that there is going to be some sanctions against him and that he had done something horrible in the eyes of the judge. "The Observer" could rightfully have expected that the Judge will take some action against Mr. Silva. The observer would be puzzled because although the judge was justified in getting upset with Mr. Silva there was much more than that in the Judge's anger. There must have been some other reason as well. So the question for the observer would have been what was the real reason for that anger. One possible thing would have been that the judge is holding Mr. Silva responsible for all the mishap about information not being available to the Court. (4) At the hearing on 17 July 2018, Mr Silva suggested that the "observer" would perceive the real reason for the FCCA Judge's anger as being that Ms Anang had not produced documents by 2.15 pm. 48 The FCCA Judge expressed the opinion (at [79] and [80]), that the fair-minded lay observer would have perceived the following: a) Mr Silva informed the Judge he had not made any inquiries of the applicants in relation to the documents that were the subject of Mr Swan's call for documents. b) The Judge asked Mr Silva questions that were directed to understanding why Mr Silva had not made inquiries about the documents. c) The Judge became angry; and he became angry because he was of the view that Mr Silva was at fault in not having made inquiries about documents in answer to Mr Swan's call for production of documents. d) The Judge dealt with his anger by adjourning the matter for a little while to compose himself, and to resume the hearing for the purpose of determining what the next steps should be. e) On resuming the hearing the Judge discussed with Mr Swan and Mr Silva the further steps that should be taken in the proceeding, which included adjourning the proceeding and initiating steps and putting in place procedures for the production of documents. f) Towards the end of the hearing Mr Silva said he apologised "for this call for production". The Judge told Mr Silva that he accepted Mr Silva did not understand that Mr Swan's making the call for the production of documents required Mr Silva to make inquiries of the applicants, and the Judge told Mr Silva he did not want Mr Silva to leave the hearing thinking the Judge had thoughts that Mr Silva had done anything untoward. In his Honour's view, it followed that the manner in which he dealt with Mr Silva not having made inquiries of the applicants in response to the call for production, and in particular the anger his Honour manifested by adjourning the hearing for a short time, affords no basis for the fair-minded lay observer to reasonably apprehend that the FCCA Judge might decide the extension of time application or the judicial review application otherwise than on their legal merits.

Lenient treatment of the party at fault 49 At [82], the FCCA Judge summarised this part of the AWS as follows: a) The Judge "did not accuse" the Minister "the same way" the Judge "accused Mr Silva because they were the one who are supposed to put the evidence to challenge our affidavits". The AWS particularly relies on the Judge stating to Mr Swan "nothing I'm saying is even a preliminary to a criticism" in the course of the Judge noting that the Minister's not having sought to obtain by subpoena or notice to produce documents evidencing communications between the applicants and their former lawyers might prevent the laying of a foundation for an objection based on s.135 of the Evidence Act. b) The Judge "supported the First respondent by asking the hypothetical question, that even Counsel for the First respondent didn't dare put forward". That is a reference to that part of the transcript I have reproduced in paragraph 7 of these reasons commencing with the words: "Had the Minister issued a subpoena to the lawyer or issued a notice". The AWS asks why the Judge would talk about the hypothetical situation. c) The Judge did not ask about "the reasonableness of contacting the applicants the day before to speak to Christopher Livingstone [sic] and Associates". 50 At [83]-[85], the FCCA Judge stated that these claims must be assessed by what in fact occurred. His Honour said that a fair-minded lay observer: (1) Would have understood that Mr Silva had raised a complaint about the Minister having not done anything concerning FKW17's affidavit until the Minister attempted to make contact with the applicants' former lawyers the day before the hearing on 15 June 2018. (2) Would have understood that the FCCA Judge put a hypothetical question to Mr Silva, with which he agreed, the effect of which was even if the Minister had done anything earlier, on the view of privilege Mr Silva was advancing, the parties would be in no different position that that in which they found themselves at the hearing, and in those circumstances, the Judge asked Mr Silva what the relevance was of the Minister's failure to do anything since 4 January 2018. The FCCA Judge noted Mr Silva's response: Well, the point that I was trying to make, your Honour, was that there was ample opportunity for six months. Nothing has been done. And last evening, a request is being made and my friend made a big issue of the fact that we haven't responded to that. So all I'm saying is that we - our version is it has not been waived and therefore we came to the court with the view that it has not been waived, but as your Honour said, once it's admitted, it's a different matter. So that's all (3) Would, in those circumstances, have perceived that the relevance Mr Silva attached to the Minister not having done anything since 4 January 2018 was that the applicants had not waived privilege over the communications deposed to in FKW17's affidavit, they were entitled to maintain that they had not waived privilege and they had come to the hearing with that view. (4) Would not have understood Mr Silva as having invited the Judge to make some order against, or otherwise to criticise, the Minister for what occurred or did not occur before the hearing. (5) Would not, in those circumstances, have expected the Judge to make any order against the Minister or criticise the Minister; and would not, therefore, have regarded the Judge's not making any such order or criticism as manifesting a display of any leniency or support by the Judge for the Minister 51 The FCCA Judge concluded, at [85], that it follows that his asking Mr Silva a hypothetical question and failing to criticise or make some adverse order against, the Minister afforded no basis on which a fair-minded lay observer would reasonably apprehend that his Honour might decide the extension of time application or the judicial review application other than on their legal and factual merits.

Costs - fault on both sides claim 52 The FCCA Judge understood this complaint to be aimed at the passage of the transcript reproduced at [18] (see [21] above). His Honour noted that, in the AWS, it was submitted that "saying both parties are to blame was unfair" and the FCCA Judge should have asked Mr Swan a number of questions about the Minister's lawyer's inaction and actions before the hearing: [86]. 53 In concluding (at [88]) the complained of passage afforded no basis on which a fair-minded lay observer might reasonably apprehend that the FCCA Judge would decide the extension of time and judicial review applications other than on their legal and factual merits, the FCCA Judge found (at [87]), that such an observer: (1) Would not have considered what the FCCA Judge said about costs as a statement to the effect that both parties are to blame. (2) Would have read that passage as the FCCA Judge counselling the parties to carefully consider whether they should apply for costs. (3) Would not have expected the FCCA Judge to ask the questions the AWS contends the Judge should have asked about the Minister's lawyers' inaction and actions before the hearing. Rather, the fair-minded lay observer would have expected that if there were criticisms to be levelled at the Minister's lawyers' inaction and actions, they would have been levelled by counsel for the applicants making submissions to the Judge.

Mr Silva's affidavit 54 The FCCA Judge noted that Mr Silva made and filed an affidavit responding to his Honour's invitation to explain, in an affidavit, why the claim of bullying was not made in the Initiating Document, and was, instead, made for the first time at the hearing on 21 July 2018. At [89]-[91], the FCCA Judge explained that: 89. … At the time I informed Mr Silva that I expected an affidavit from him, I was of the view that the applicants' having made a claim of bullying in the circumstances they did could be taken to suggest that the claim of bullying was not made bona fide, but was instead made for the purpose of the applicants' resiling from Mr Silva's having accepted at the hearing of 15 June 2018 that the [FKW17's]affidavit had been read; that the affidavit, therefore, was evidence before the Court; and that privilege over the communications deposed to in the affidavit has been waived. 90. I have taken the view, however, that whether or not the claim of bullying was or was not made bona fide is not an issue I need to consider. That is so because the only basis on which the applicants seek that I be recused is reasonable apprehension of bias. That means that the only matters with which I need to concern myself are the identification of the matters on which the applicants rely as giving rise to a reasonable apprehension of bias, and my determining whether those matters, considered individually and cumulatively, might lead a fair minded lay observer to conclude that I might decide the applicants' application for an order under s.477(2) of the Act, and if such order is made, the substantive grounds contained in the application for judicial review, other than on their legal and factual merits. These are the matters with which I have concerned myself in these reasons for judgment. 91. This, then, leaves the question of what I should do about Mr Silva's affidavit. As I noted earlier in these reasons, the applicants rely on it. Counsel for the Minister objected to my reading Mr Silva's affidavit on the grounds of relevance. In my opinion the affidavit is irrelevant because it goes no further than asserting matters that purport to reflect Mr Silva's subjective beliefs and perceptions about what occurred at the hearing on 15 June 2018. A short recitation of assertions Mr Silva makes in his affidavit bears this out. Mr Silva asserts the Judge was "provoked and incited to such a level that he was quite agitated and that we were being targeted by the Court"; the Judge "was not in the mood to let" Mr Silva put "the authority on privilege, that clearly stated the principle"; the Judge adopted the "kind of attitude" that "[f]ault is yours, so you explain"; that "[i]n spite of the fact that the whole issue is about privilege, to his Honour it was about our fault, that is inconsistent behaviour with asserting privilege"; that "[i]t was just that his Honour was intending to find fault with us"; and that "His Honour, while not knowing the correct law on privilege, refused to look at the correct authority and then engaged in exaggerated propositions on privilege". These assertions are incapable of constituting evidence of how a fair-minded person would have perceived the events the assertions purport to represent.

Conclusion and disposition 55 The FCCA Judge concluded, at [92], that considered alone and cumulatively, the matters complained of did not afford a basis on which a fair-minded lay observer might reasonably apprehend that his Honour might decide the extension of time application or the judicial review application other than on their legal and factual merits. Accordingly, at [93], the FCCA Judge dismissed the recusal application and reserved costs.

PRINCIPLES APPLICABLE TO APPLICATIONS FOR LEAVE TO APPEAL 56 There is no dispute as to the general principles to be applied on an application for leave to appeal having regard to the decision in Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9: the Court should have regard to: (1) whether the FCCA Judge's decision is attended by sufficient doubt to warrant its consideration on appeal; and (2) whether substantial injustice would be suffered by the applicants if leave were refused, assuming the FCCA Judge's decision to be wrong. 57 In his oral submissions, Mr Silva submitted further that the threshold for granting leave is low because: (1) In Johnson Tiles Pty Ltd v Esso Australia Limited (2000) 104 FCR 564 (Johnson Tiles) at [42], the Full Court found that there is a difference in the Court's approach dependent upon whether the decision from which leave to appeal is sought dealt with a matter of practice and procedure (where the Court must exercise caution in granting leave) or a "substantial matter" where leave should more readily be granted. Mr Silva submitted that this difference was not always strictly construed, but said this was a "substantial matter" because parties are entitled to an impartial court. (2) In United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 (United States Tobacco), leave was granted on the basis that an issue of importance was raised which should be determined by a Full Court and the issue in this case, the apprehension of judicial bias, warrants the grant of leave because the appearance of judicial impartiality is so fundamental; and (3) Last, relying on Johnson Tiles at [43], where the decision is open to doubt, leave will usually be granted. 58 The Court does not accept Mr Silva's submissions in the terms that he made them. The Court notes that the distinction addressed in Johnson Tiles at [42]-[43] is between decisions which relate to matters of practice and procedure and decisions which, practically, determine substantive rights of parties. It is generally accepted that the balance weighs in favour of granting leave to appeal in the latter case where there is doubt about the impugned decision. The Court will generally not intervene in matters of practice and procedure where no question of general importance is at stake. Greater scrutiny should be given to those interlocutory decisions which go to the ability of a party to advance its case for resolution: United States Tobacco at 532. 59 Where leave is sought to appeal a recusal application there are two competing interests of justice in play. The first is the interest that judicial decisions are, and are objectively seen to be, unbiased so that the public at large as well as the parties to the proceedings may have confidence in the integrity of judicial decision-making. The second interest is in ensuring that the due despatch of the workload of the courts is not bogged down by unwarranted claims of apprehension of bias arising out of unfavourable rulings on matters of practice or procedure or hurt feelings following robust exchanges. Interested parties are not always in the best position to determine whether, objectively, an interlocutory decision was impartially made. 60 Although neither of the parties raised the relevance of s 476A of the Migration Act which provides that, despite s 24 of the Federal Court of Australia Act 1976 (Cth), an appeal may not be brought to the Federal Court from a judgment of the FCCA that makes an order or refuses to make an order under s 477(2) of the Migration Act, the Court accepts that this factor would weigh in favour of the grant of leave to appeal to a greater extent than might otherwise be the case on consideration of an application for leave to appeal from a decision of a FCCA Judge to refuse to recuse himself or herself from hearing such an application.

DO THE GROUNDS ESTABLISH SUFFICIENT DOUBT AS TO THE CORRECTNESS OF THE FCCA JUDGE'S DECISION TO WARRANT CONSIDERATION ON APPEAL? 61 As noted, there are nine grounds set out in the draft notice of appeal.

(1) His Honour erred in failing to consider whether the "fair minded lay observer" would apprehend bias based on matters considered cumulatively 62 The particulars to this ground are that, although at [92], the FCCA Judge referred to matters being considered cumulatively, his Honour did not engage in that exercise explicitly - as the applicants say his Honour was required to do. Rather, his Honour "only dealt with the issues each individually". That is so, even though his Honour referred, at [26] and [57], to the principles that require the observer to look at the whole proceeding. The applicants say that this was a "mere statement of law" not put into practice. They say, look, for instance at [65], where his Honour said "that by itself would not necessarily lead to the conclusion …". 63 In his oral submissions, Mr Silva submitted that, to demonstrate a cumulative assessment of the apprehended bias application, the FCCA Judge should have identified each of the elements of the claims: how submissions were dealt with, the inconsistent behaviour accusation, failure to admit the authority, the use of inflated language, the accusation that the applicants did not put on evidence, the hypothetical question, the call for documents, costs, his Honour's agreement that the applicants were model litigants and the total failure on the part of the Minister, which was not defended. The FCCA Judge should then have put the elements together, linked them in a cumulative manner. These things built up over the course of the hearing, including the FCCA Judge's need to take a break. Together they are the background to the hearing, but the FCCA Judge compartmentalised each claim, dismissing them one by one, rather than looking at the hearing as a whole.

Consideration 64 Contrary to the applicants' submissions, it is apparent from the Reasons that the FCCA Judge bore in mind the need for cumulative and contextual assessment of the applicants' apprehended bias claims: (1) The FCCA Judge set out comprehensively the principles for determination of a claim of apprehended bias at [20]-[35]. (2) At [26], the FCCA Judge quoted a passage from the judgment of Kirby JA in Galea v Galea (1990) 19 NSWLR 263 at 279 as follows (emphasis added): In judging the suggestion of a supervening apprehension of bias, it is reasonable to assume that the hypothetical lay observer would base the opinion on a fair assessment of the judge's conduct in the context of the whole of the trial. A judgment of the loss of impartiality and neutrality would not be made from a short and emotional exchange taken out of context and then weighed in isolation. Judges, like witnesses, are human. Despite their professional training they are, in varying degrees, likely to show the range of emotions to which humanity is heir. Whilst patience is a judicial virtue, so also is a concern about justice, the efficient conduct of proceedings, and the avoidance of unnecessary delay, including to other litigants awaiting their hearing. Judges should understand the variety of skills in communication that exist in the community. Some people are pedantic, even without wishing to be so. I get the impression that the appellant liked to take fine points of language which might delight a seminarian but which could cause irritation to a busy judge who thereby formed the opinion that he was temporising and evading questions which were embarrassing to him. Some of the expressions of Powell J, combed over in a detailed appellate examination of the transcript, are such that, with hindsight, they could doubtless have been improved. On the other hand, the right, and perhaps the duty, of the judge to expose the development of his thinking to the appellant, and explain and justify what he said, can be viewed as a whole and seen in the context. (3) At [31], his Honour said (emphasis added): Where it is claimed that two or more factors might give rise to an apprehension of bias, the capacity of each factor to give rise to apprehension of bias must be considered separately and cumulatively. (4) At [36], immediately after the summary of applicable principles, the FCCA Judge summarised his task by reference to those principles as follows (emphasis added): The tasks I attempt to perform in these reasons for judgment is to place myself in the shoes of a fair-minded lay observer who stands apart from the proceeding, and consider as best I can whether any of the grounds on which the applicants rely, considered alone and cumulatively, might lead a fair-minded lay observer reasonably to apprehend that I might not bring an impartial mind to the resolution of the questions I am required to decide in this proceeding, namely, whether an order should be made under s.477(2) of the Act extending the 35 day limit provided by s.477(1) of the Act for making an application for a remedy under s.476 of the Act in a relation to a decision made by the Tribunal and, if such order is made, whether the Tribunal made a jurisdictional error on any one or more of the grounds set out in the application for judicial review. (5) At [52], the FCCA Judge finds (correctly in this Court's view) that the fact that his Honour accepted that the applicants had complied with their obligations in their conduct of the proceedings could not "by itself" found a reasonable apprehension of bias, it would only be a contextual matter. (6) Paragraph [57] forms part of the FCCA Judge's consideration of the complaint that his Honour treated the applicants harshly by not affording Mr Silva an opportunity counter prejudicial statements made by Mr Swan. His Honour said (emphasis added). The complaint the applicants make about this part of the hearing purportedly reflects the subjective reactions of the applicants at the time of the hearing of 15 June 2018 and, perhaps, after the hearing, having reflected on what had occurred at the hearing. The question, however, is how a fair-minded lay observer would have perceived this part of the hearing, having regard to what occurred at the hearing as a whole. (7) At [65], the FCCA Judge finds that "a degree of impatience with some of the responses that Mr Silva gave to the questions the Judge asked, and that impatience would have been manifested by the tone in which the Judge asked some of the questions" perceived by a fair-minded lay observer would not, "by itself" found a reasonable apprehension of bias. (8) At [90], his Honour said (emphasis added): I have taken the view, however, that whether or not the claim of bullying was or was not made bona fide is not an issue I need to consider. That is so because the only basis on which the applicants seek that I be recused is reasonable apprehension of bias. That means that the only matters with which I need to concern myself are the identification of the matters on which the applicants rely as giving rise to a reasonable apprehension of bias, and my determining whether those matters, considered individually and cumulatively, might lead a fair minded lay observer to conclude that I might decide the applicants' application for an order under s.477(2) of the Act, and if such order is made, the substantive grounds contained in the application for judicial review, other than on their legal and factual merits. These are the matters with which I have concerned myself in these reasons for judgment. (9) The inference to be drawn from [92] is that the FCCA Judge thought that he had considered the claims cumulatively as well as individually. It is as follows (emphasis added): The matters complained of, whether considered alone or cumulatively, afford no basis on which a fair-minded lay observer might reasonably apprehend that I might decide the applicants' application for an order under s.477(2) of the Act, and if such order is made, the substantive grounds contained in the application for judicial review, other than on their legal and factual merits. 65 The usage of "by itself" at [52] and [65] is consistent with the FCCA Judge's recognition that claims require both individual and cumulative assessment in the sense that an established incident might not "by itself" require a conclusion that there is a reasonable apprehension of bias, but taken together, more than one such incident may lead to a reasonable apprehension of bias by a fair-minded lay observer. 66 Where, as here, the Reasons demonstrate an ongoing awareness by the Judge of relevant legal principle and the tasks required to apply those principles and the Reasons contain statements such as those at [90] and [92], where the Judge says that he has performed a task required by those principles (that is, cumulative assessment), it requires clear evidence to establish that the Judge did not, in fact, apply that principle and perform those tasks. 67 Apart from accepting that the FCCA Judge demonstrated impatience, the FCCA Judge did not accept the individual claims made by the applicants which were said to found a reasonable apprehension of bias. Mr Silva's argument that it was necessary for the FCCA Judge to identify each of the claims by listing them and state an "appreciation" of them cumulatively in order to establish that a cumulative assessment was made has insufficient merit to warrant consideration on appeal in circumstances where: (1) The FCCA Judge did not accept that the claims (other than that his Honour demonstrated impatience) on which such an "appreciation" must be based; and, (2) For reasons which follow, the Court does not accept that the applicants' other grounds which seek to establish that the FCCA Judge erred in his findings on the other claims have sufficient merit to warrant reconsideration on appeal. 68 The Court finds that this ground is attended by insufficient merit to warrant consideration on appeal.

(2) His Honour erred by his finding at [59] and [60] that the fair-minded lay observer would not perceive the Judge as having prevented Mr Silva from responding to Mr Swan's criticism 69 In the particulars to this ground, the applicants assert that: (1) The observer would have known or realised that until 15 June 2018: (a) The Minister did not put on any evidence to challenge FKW17's affidavit as to the fact that she was not advised about judicial review; (b) The Minister did not put on any evidence to challenge an affidavit affirmed on 23 March 2018 by FKW17 as to the fact that she was advised not to go for the Tribunal hearing; (c) The Minister did not indicate in his final submissions that he intended to challenge the affidavits or to cross-examine FKW17 at the hearing; (d) The Minister did not indicate to the Court in any other way that he intended to challenge the affidavit. (2) The observer would be aware that on 15 January 2018, the FCCA Judge made orders for the applicants to file evidence they rely on by 26 March 2018 and the Minister to file evidence he relies on by 9 April 2018. While the applicants filed evidence, the Minister did not. (3) Mr Swan was repeatedly trying to blame the applicants for the Court not having the evidence before the Court because the very last evening before the hearing, the applicants did not tell Ms Anang that the privilege was waived, as the Minister wanted him to. (4) Mr Swan was talking about many matters adverse to the applicants and that when Mr Silva tried to intervene twice the Judge did not allow him to do that. (5) The observer would have felt that it should have been obvious to the Judge that Mr Swan was without an affidavit referring to verbal communications between several persons and that that was a one-sided view of the matters and Mr Silva may have a different view. (6) That Mr Silva did not have an opportunity to respond to what Mr Swan said on many matters taking considerable time. (7) That it would have been impossible to respond to several matters Mr Swan spoke about, without them being broken down into different parts. (8) That the way the Judge overruled Mr Silva's two objections would not make it possible for him to complain yet again about Mr Swan's attacks without causing a confrontation with the Judge (contrary to what is said at [59]). (9) It would have been obvious to the observer that the Judge should not have allowed Mr Swan to continue to say things prejudicial to the applicants, even after Mr Silva's objections and that the attitude of the Judge did not seem to be balanced. (10) That the way the Judge responded to Mr Silva's interruptions and his Honour's question to Mr Silva straight after that without giving him an opportunity as he promised before attacking the applicants' inconsistent behaviour and not allowing him to refer to the authority appears to show partisanship and escalates the concern about the neutrality of the Judge. (11) That the Judge having a wide discretion to refuse extension of time appears to be against the applicants at that point in time and most likely refuse time. 70 These particulars were re-iterated in the applicants' written submissions to this Court. In particular, the written submissions at [14]-[18] covered the material addressed in subparagraphs (4)-(8) immediately above. 71 In his oral submissions, Mr Silva cavilled with the Minister's characterisation (in his written submissions) of Mr Silva's actions as "interruptions" during the Minister's submissions concerning his objection to FKW17's affidavit. Mr Silva sought to characterise his action as "intervention" or "objection" and asked rhetorically what can someone do but object when the other side is making prejudicial submissions and seeks to discuss communications with a number of people that are not the subject of affidavit evidence. Mr Silva submitted that even the FCCA Judge characterised his actions as "interruptions" when they were "objections". 72 Mr Silva referred to a list of 29 matters on which he relied set out in item 56 of the AWS under the heading "Issues raised by Mr. Swan at the beginning of the hearing" which appear at page 32 of Mr Silva's affidavit affirmed on 22 August 2018 (Affidavit No 3). While Mr Silva admitted that "maybe [he] went overboard" in listing 29 matters, the AWS says that 14 matters were raised before Mr Silva sought to intervene and 15 after. 73 Mr Silva submitted that when one side gives evidence from the bar table, as Mr Swan did concerning the events of the evening before the hearing on 15 June 2018, "the mindset of the judge is locked in to that evidence, you can't undo that". He says that, on matters of practice and procedure, where it is put that someone has not done what they should the prejudice that comes about cannot be undone. Mr Silva submitted that multifaceted submissions such as Mr Swan's, which include detailed evidence as to events, are difficult to respond to after they have all been made, even where the Judge invites submissions. He says the proper course would have been to give Mr Silva an opportunity to respond to them as matters progressed. Further, he says he was not given an opportunity to respond to Mr Swan's submissions because the FCCA Judge "launched into an issue that was more like accusing my clients of inconsistent behaviour", and after that "everything went out". 74 Rather than setting them out in detail here, the Court will address, as necessary, the Minister's submissions into the consideration of the applicants' submissions.

Consideration 75 It is necessary to examine the transcript of the first phase of the proceedings on 15 June 2018, in considering these submissions. 76 Mr Silva read FKW17's affidavit (at T4.19). Mr Swan (at T4.22) objected to it on the basis of s 135 of the Evidence Act, saying that the affidavit was unfairly prejudicial. Then (at T4.30-6.28): (1) Mr Swan submitted that FKW17's affidavit made express reference to the substance of legal advice concerning whether to seek judicial review of approach the Minister under s 417 of the Migration Act such that privilege in that advice had been waived, noting the concept of issue waiver. Mr Swan noted that there was no other evidence going to that matter. (2) Mr Swan made submissions that "this week and also in April" his instructing solicitor had sought to contact Ms Anang and on each occasion Ms Anang indicated that she could not speak because of legal professional privilege. No evidence was adduced as to those communications. (3) Mr Swan submitted that he had taken the matter up with Mr Silva the evening before and in the morning of 15 June 2018 about whether the applicants still claimed that privilege, and a request was made that Christopher Levingston & Associates be informed that the privilege was either not claimed or it was waived. Mr Swan noted his instructions that Ms Anang said that, if that occurred, she would be able to provide emails dealing with the advice given. (4) In response to a question from the FCCA Judge, Mr Swan advised that documents had not been sought from the applicants directly. Mr Swan submitted that the position was that "the applicant is still asserting a claim for privilege which, with respect, has clearly been waived". (5) His Honour asked whether it was the case that the "applicant is asserting privilege". Mr Swan responded "Yes" and went on to say that the consequence was that "we are unable to test in any way the evidence that has been put forward by the second applicant". (6) His Honour sought confirmation from Mr Swan that the Minister had not sought documents from the applicants themselves, and queried whether that was relevant under s 135. Mr Swan responded that it may be relevant and accepted that the Minister did not subpoena Christopher Levingston & Associates or issue a notice to produce. (7) Mr Swan then went on to say that the "situation" was that "yesterday" a request was made and that "the submissions have only been put on recently which clearly state the subject matter and substance of the advice". (8) Mr Swan went on to submit that if emails (which the Court takes to be the emails referred to by Ms Anang as submitted by Mr Swan) had been provided the night before, they may have confirmed what the applicant says "and that would be the end of it", but they may contradict the applicant, which the Minister wanted to put to the applicant in cross-examination. 77 Pausing here, as found by the FCCA Judge at [58], the fair-minded lay observer would see that Mr Swan was pursuing a normal course of explaining the factual and legal basis for his submission that FKW17's affidavit should be excluded at an early stage of the hearing. It would be apparent to a fair-minded lay observer that the Minister's counsel was putting forward matters relevant to his client's case, and they included that the communications attempted with Ms Anang and made with Mr Silva did not result in an agreement that privilege was waived. It is Mr Silva's characterisation that this involves an attempt to "blame" his clients but that is an inappropriately emotive characterisation. Those submissions were being made from Mr Swan's client's perspective on factual matters that he thought relevant to the claim Mr Swan made under s 135 of the Evidence Act, as would be apparent to a fair-minded lay observer. If those matters remained relevant (which they did not once Mr Silva conceded that upon being read, privilege in communications referred to in FKW17's affidavit was waived), it would be expected that Mr Silva would be given an opportunity to respond to them. 78 While submissions as to factual matters were being raised and, as Mr Silva notes, there was no affidavit evidence dealing with them filed by the Minister, it is apparent from later in the transcript that Mr Swan proposed to tender an email concerning communications between his instructing solicitor and Mr Swan and Mr Silva did not dispute that those communications occurred. That issue, too, became irrelevant once Mr Silva accepted that FKW17's affidavit had been read and privilege waived. 79 Taking up the course of the hearing again, the interchange between Mr Silva and the FCCA Judge at T6.20-29 recorded at [56] then occurred. It is this exchange which the Court understands to be where Mr Silva says that the FCCA Judge twice prevented him from "intervening". Although the exchange is set out at [33] above, it is useful to set it out again. MR SILVA: Your Honour, there are several issues being canvassed HIS HONOUR: Well, just wait a minute. Mr Swan hasn't finished his submissions. MR SILVA: Yes. There are several issues being canvassed HIS HONOUR: Yes. You will have an opportunity to respond to what Mr Swan says. MR SILVA: Yes. 80 While Mr Silva characterises his intervention as an objection made on "two occasions", it would be apparent to a fair-minded lay observer that Mr Swan had not completed his submissions at that point, Mr Silva did not raise two objections but rather made the same point twice and the FCCA Judge did what might reasonably have been expected at that point in the proceedings: his Honour told Mr Silva that he should wait until Mr Swan had finished his submissions and he would then be given an opportunity to respond. Properly informed, the fair-minded lay observer would find this unremarkable in the adversarial processes adopted in Courts. 81 With respect to Mr Silva (and Mr Swan), the arguments that the weight of Mr Swan's submissions to that point in the hearing was such that it would have been apparent to a fair-minded lay observer that they need to be responded to serially or that Mr Swan's submissions were so prejudicial that an experienced Judge would be so "locked" into them as not to be able to evaluate them when Mr Silva later addressed them in response lack merit. They reflect the fears of interested parties, not what might be apparent to a fair-minded lay observer. 82 It is relevant to note, as the FCCA Judge did at [59], that Mr Silva did not submit to the FCCA Judge at the hearing on 15 June 2018 that what Mr Swan stated from the bar table constituted a "sustained attack on us", or that the Judge should stop Mr Swan from continuing because Mr Swan was undertaking such a sustained attack, or that the nature of what Mr Swan was asserting was such that the only way Mr Silva could respond was by the Judge permitting Mr Silva to respond serially to each assertion Mr Swan made or proposed to make. It is reasonable to impute to the fair-minded lay observer an understanding that it is the role of counsel for a party to put to a judge matters that counsel considers to be relevant to the advancement or protection of the interests of the party counsel represents, and for counsel to conduct the case on behalf of the party counsel represents in a manner that, in counsel's judgment, advances or protects the party's interests. In those circumstances, the argument that a fair-minded lay observer would perceive that the way that the FCCA Judge reacted to Mr Silva's twice stated statement that "[t]here are several issues being canvassed" was unbalanced or that it would make it impossible for Mr Silva to "complain" (in the sense of raising these matters) has no merit . The risk of invoking a similar response from the FCCA Judge is one that a fair-minded lay observer might expect an experienced barrister to run. 83 From T6.31, Mr Swan resumed his submissions concerning s 135 of the Evidence Act. (1) Mr Swan was interrupted by the FCCA Judge. His Honour noted that "nothing I'm saying is even a preliminary to a criticism so just bear that in mind" and went on to note that, the Minister had notice of FKW17's affidavit and when you have an affidavit "like that" and you think there are documents about it, it would be normal to serve a notice to produce and that had not been done. The FCCA Judge queried whether there was a foundation for the exercise of discretion under s 135 of the Evidence Act. (2) Mr Swan addressed that query by reference to the events of the day before, indicating that an email could be handed up indicating that a request had then been made to the applicants' representative. (3) In relation to that email, his Honour then said (at T7.23-25): Well, you can tell me at the moment what the effect of it all is and then I will deal with it in a more - in a more formal manner once I work out what the issues are. (4) Mr Swan responded and the FCCA Judge summarised his understanding of what was being put as follows: But is the effect of this email communication to say: please waive privilege so that we can talk to the lawyer". Is that the effect of it? And you say that the response was: we've not waived privilege. which Mr Swan confirmed. (5) Mr Swan then reiterated the position that he said Ms Anang put (see [76(3)] above) the night before the hearing. (6) There was then an exchange between Mr Swan and the FCCA Judge concerning the interpretation of s 135 by reference to a legal text book. Mr Swan noted the seriousness of the allegation made in relation to advice asserted to have been given by Christopher Levingston & Associates. The FCCA Judge queried the nature of a document handed up, being an email from Mr Swan's instructing solicitor sent the night before to Mr Silva. Mr Swan's submissions concluded at T9.40. 84 His Honour then turned to Mr Silva (commencing at T9.41) and queried whether or not he accepted that privilege had been waived. (1) Mr Silva said "No", saying that "I refer your Honour to an authority" and that he would take his Honour to a section "that deals with this disclosure", s 122(3) of the Evidence Act, and submitting that the authorities of the Court of Appeal indicate that: …another person is not court so once the information disclosed to court it is not a disclosure and I want to take your Honour to that authority so that. So our version is it does not be disclosed and I have a copy for … (2) His Honour responded to Mr Silva as follows: Well, it's not a question of disclosure; it's a question of whether you've acted inconsistently with asserting your privilege. There is an exchange between Mr Silva and the FCCA Judge at T10.16-45 in which Mr Silva first indicates that he seeks clarification of what the FCCA Judge means by that, saying "Beg your pardon, your Honour?" on two occasions. The exchange then evolved into a discussion of the interaction of ss 122(2) and 122(3) of the Evidence Act. (3) There is then an exchange between Mr Silva and the FCCA Judge (at TT11-12) concerning whether the statements deposed to in FKW17's affidavit constituted disclosure to the court or more broadly, including where Mr Silva sought to take his Honour to "the authority" and his Honour said "No, no, I'm looking at the statute first and then you can take me to the authority". The exchange involved a discussion of whether or not FKW17's affidavit had been read, concluding at T13 with Mr Silva not conceding that serving FKW17's affidavit on the Minister constituted disclosure, but Mr Silva did concede (at T13.34-37) that, the affidavit having been read, there was a waiver of privilege. (4) When the FCCA Judge commenced a discussion about the formulation of a call for documents, Mr Silva intervened to say (at T13.46) that there was "one other important matter", being the Minister's failure to make a request for documents from 4 January 2018, when FKW17's affidavit was filed, until the night before the hearing. His Honour acknowledged that something was attempted the day before, Mr Silva could not communicate with the former lawyer and Mr Silva would not waive privilege concluding (at T14.9) "[t]hat's what has been said against you". (5) Mr Silva responded (at T14.11-12) that "we didn't waive privilege until now only once it's accepted it's a different matter, before that it wasn't read". (6) At T14.14-37, there is an exchange commenced by the FCCA Judge with Mr Silva in which the FCCA Judge asked Mr Silva what position he would have taken had the Minister issued a subpoena or notice to produce, and there had been a dispute about that and there had been a hearing before 15 June 2018. Mr Silva confirmed that in his view, privilege would not have been waived until FKW17's affidavit was read so that he agreed that he would have been making the same submissions as he was making to the FCCA Judge. (7) The following exchange then occurred between Mr Silva and the FCCA Judge: HIS HONOUR: All right. So why do you say that - what's the relevance according to your view of how this section operates MR SILVA: Yes. HIS HONOUR: of the Minister not having anything since it received the affidavit? MR SILVA: Well, the point that I was trying to make, your Honour, was that there was ample opportunity for six months. Nothing has been done. And last evening, a request is being made and my friend made a big issue of the fact that we haven't responded to that. So all I'm saying is that we - our version is it has not been waived and therefore we came to the court with the view that it has not been waived, but as your Honour said, once it's admitted, it's a different matter. So that's all. HIS HONOUR: Well, that's not what I've said. That's what you're submitting. I haven't accepted that. MR SILVA: Well, that's what I'm saying here. (8) The FCCA Judge then turned to address whether a call could be formulated and whether it was possible to proceed with the hearing on an assumption that the matters deposed to in FKW17's affidavit could be assumed to be true. (9) In the fourth phase of the hearing, after the hearing resumed at 2.33 pm, in response to the FCCA Judge's proposal to adjourn the hearing (at T36.15) Mr Silva said that the applicants had filed their affidavits on 1-4 January 2018 and it was only on the evening previous to the hearing on 15 June 2018 that there was any attempt to try to ask for the documents or have the applicants available for cross-examination and he "hoped your Honour would take that into consideration". When asked directly whether he opposed an adjournment (at T37.35), Mr Silva indicated that he did not, that he thought it right that "we should have the information" and "we are not afraid because we think it will be helpful to us, so - yes, no problem", to which the FCCA Judge responded: "Well, I think it's important that all documents be in front of the court and that's why I'm going to adjourn or propose to adjourn" to see what documents were available to be produced. 85 A fair reading of this part of the transcript indicates that it would have been apparent to a fair-minded lay observer that the FCCA Judge took an active approach to establishing what the issues were which required determination in relation to whether privilege attached to FKW17's affidavit, interrogating counsel on both sides about the positions they were taking and what his Honour saw as the strengths and weaknesses of their positions. For instance, in response to questions from the FCCA Judge, Mr Swan acknowledged that no notice to produce or subpoena had been issued or request made to the applicants to produce legal advice on which FKW17's affidavit relied. The FCCA Judge then raised with Mr Swan issues testing whether s 135 of the Evidence Act would apply in those factual circumstances, noting that where the Minister was aware of FKW17's affidavit, it would be normal to issue a notice to produce or seek documents under subpoena, and raising the difficulty that no approach had been made to the applicants. 86 The FCCA Judge then established that Mr Silva did not accept that privilege attached to communications referred to in FKW17's affidavit had been waived. It appears that the FCCA Judge adopted the same interrogative approach with Mr Silva as he had with Mr Swan, albeit that the FCCA Judge and Mr Silva appear from the transcript to have some difficulty understanding propositions each put to the other. It is likely that a fair-minded lay observer would regard the efforts of each to understand the other as sincere. 87 It is true that the FCCA Judge sought to have Mr Silva explain why he thought that privilege had not been waived rather than inviting him to respond to Mr Swan's "criticisms" (to use Mr Silva's word) directly. In addressing the FCCA Judge's question, Mr Silva based his argument on s 122(3) of the Evidence Act and "an authority". In argument concerning the proper interpretation of s 122(3), the FCCA Judge indicated that he wished to pursue that issue before considering the "authority" on which Mr Silva sought to rely and then called to Mr Silva's attention that that provision was subject to s 122(2). Adopting the perspective of a fair-minded lay observer, that would be unexceptional. 88 It is in that context that his Honour put to Mr Silva that the relevant issue was not one of disclosure, but rather "it's a question of whether you've acted inconsistently with asserting your privilege". The reference to acting inconsistently with asserting privilege accurately reflects the language of s 122(2). The force of Mr Silva's arguments to the FCCA Judge on the recusal application and on the application for leave to appeal is that this was an assertion that the applicants "acted inconsistently" in the proceedings in some blameworthy way, since Mr Silva characterised this as "attacking the applicants' inconsistent behaviour" and a show of partisanship. That argument has no merit. Similarly, the suggestion that the FCCA Judge acted in a partisan way by "refusing" to hear argument on the "authority" lacks merit, since it is clear from the transcript that the FCCA Judge wished to hear argument on the proper interpretation of s 122 before hearing argument addressing the authority. 89 Although it is true that Mr Silva was told by the FCCA Judge that he would be able to respond to Mr Swan's submissions after he had made them and that he would be able to address the authority after argument on s 122 of the Evidence Act the fact that the FCCA Judge did not invite submissions would not give a fair-minded lay observer cause to doubt the FCCA Judge's impartiality. It is clear from the transcript that those issues were overtaken and became irrelevant as a result of Mr Silva's concession that FKW17's affidavit had been read and, on his own argument, that meant the privilege had been waived. Notwithstanding that, Mr Silva had and took the opportunity to make the submissions directed to the Minister's conduct in failing to issue a notice to produce or subpoena in the period of about six months between the filing of FKW17's affidavit and the night before the hearing on 15 June 2018. This is on two occasions: following his concession that privilege was waived as a result of the affidavit being read and later, in the context of discussing the issue of adjournment. 90 This ground has insufficient merit to warrant its consideration on appeal.

(3) His Honour erred at [70] by finding that the way his Honour handled the privilege issue affords no basis for reasonable apprehension of the fair-minded lay observer 91 The applicants' written and oral submissions reflected the particulars of this ground which were (as written): (a) At [61], his Honour stated that that was not clear what conduct caused apprehension of bias. That conduct is stated below: (i) As soon as Mr. Swan finished his submissions which in the opinion of the observer already would have caused grief to the applicants his Honour without asking whether Mr Silva want to say anything in relation to what Mr. Swan said asked Mr. Silva about privilege and when Mr Silva said that according to the authority there was no disclosure, his Honour contradicted Mr. Silva and said it is not about disclosure but about "whether you acted inconsistently with asserting your privilege". Disclosure and privilege are intertwined and it is the same issue and there was no need to knock back Mr Silva and accuse him of inconsistent behaviour; (ii) While preventing him from referring to the authority he wants to rely on, when he attempted two times, accusing him of inconsistent behaviour, which prevented Mr Silva from relying on the authority as a response to his Honour; (iii) Mr. Silva several times point to his Honour that until the affidavit was not read the privilege was not waived and his Honour kept on equating the Judge reading the affidavit with affidavit being read into evidence. The affidavit was never read into evidence because there was the objection; (iv) His Honour was also using inflated language (like the whole world knows about it) and this adds to the behaviours complained of before so it builds on top of the grievances existing before; (v) The observer would see that the behaviour of the judge would be intimidating because it was building up one on top of the other. (b) In relation to [66] of his Honour's reasons the observer would think: (i) Contrary to what is stated in [66(a)] the observer would think that Mr. Silva was not given an opportunity to deal with the privilege. That he was not able to explain first and foremost what was the privilege issue between the applicants and Ms. Anang really was. That the judge had taken an antagonistic view against the applicants. His Honour was not trying to understand but trying to impose Judge's views on Mr Silva. (ii) As accepted at [66(b)] by his Honour of his display of impatience would not be seen in isolation but with the earlier behaviour and the observer would not se any justification for the impatience. The observer would be more focussed on the attitude of the Judge towards Mr. Silva because that is what was causing the apprehension; and (iii) Contrary to what is stated in [66(e)] before Mr. Silva agreed with the judge that the affidavit was read, the observer would see twice he was not allowed to take the Court to the authority and that the Judge was not agreeing to what Mr. Silva said about reading the affidavit, but could not refer to the authority to support his position; and (iv) Contrary to what is stated at [67], the observer would see the helplessness of Mr. Silva in that he was asked questions in an impatient manner but not allowed to answer using the authority and the judge was referring to him reading it as different from Mr. Silva and the inflated language used by his Honour and would use that Mr Silva was not in the mood to fight with the judge.

Consideration 92 This ground addresses two issues considered by the FCCA Judge at [61]-[70], his Honour's alleged failure to allow Mr Silva to rely on the authority, being the Macedonian Orthodox Church case, and the impatience displayed by his Honour using "inflated language" in addressing the issue of disclosure, said to have pressured Mr Silva into accepting that FKW17's affidavit had been read into evidence when he did not believe that it had. 93 The particulars listed under paragraph (a) have been largely dealt with in relation to ground two, however, it is appropriate to make the following comments. 94 The proposition that Mr Swan's factual submissions in support of his objection to FKW17's affidavit "caused grief" to the applicants (because they did not agree with the factual matters which Mr Swan raised concerning communications on 14 June 2018) gave rise to a reasonable apprehension of bias because Mr Silva was not asked or allowed to respond to those factual matters immediately cannot be sustained. A fair-minded lay observer would not have apprehended bias in the FCCA Judge seeking first to clarify that the applicants did not waive privilege and then (flowing from that) seeking to address, in order, two matters raised by Mr Silva, being the application of s 122 of the Evidence Act and the authority. Having regard to Mr Silva's concession that FKW17's affidavit had been read, the occasion for Mr Silvia to address the factual assertions made by Mr Swan concerning communications on the evening of 14 June 2018 did not arise. 95 Insofar as Mr Silva appears to apprehend that Mr Swan's submissions concerning those factual matters may have prejudiced the FCCA Judge against the applicants (the Court infers, the source of the applicants' "grief"), that is a fear of the applicants but there is nothing in the transcript which would support that proposition. In any event, the FCCA Judge asked Mr Silva to address the relevance of the Minister having failed to seek documents before the request to speak to Ms Anang was made on 14 June 2018, the evening before the hearing and he did so (at T14.40-15.11) and Mr Silva again raised that issue (at T36) in the context of the question of adjournment to allow documents to be produced when he asked the FCCA Judge to take into consideration the fact that FKW17's affidavit had been filed in early January 2018 and the Minister's failure to seek documents before 14 June 2018. Mr Silva took the later opportunity to clarify the position with respect to Ms Anang and submit that she had been authorised to discuss matters such as the extension of time and the Tribunal; Mr Silva embraced the opportunity to put material before the Court because he thought that it would support his case (at T36.8-37.45). 96 Further, while it is true that, at T10.13-14, the FCCA Judge said "It's not a question of disclosure, it's a question of whether you've acted inconsistently with asserting your disclosure", it is clear that his Honour was not criticising either Mr Silva or the applicants for "inconsistent behaviour". A fair-minded lay observer would understand that, Mr Silva having raised s 122(3) and the authority as the basis for his assertion that privilege had not been waived, in making the statement at T10.13-14, the FCCA Judge was attempting to have Mr Silva engage in an exercise of statutory interpretation, not criticising either Mr Silva or the applicants. Such an observer would not have apprehended bias by the FCCA Judge seeking first to deal with statutory interpretation and then addressing any authority on which Mr Silva sought to rely nor would the observer have understood his Honour to be "preventing" Mr Silva from relying on the authority. 97 There is some force Mr Silva's proposition that FKW17's affidavit was never, in fact, read into evidence, despite the FCCA Judge's opinion expressed in footnote 62 of the judgment that, having read the transcript, his Honour was "under no doubt that [he] did formally read" that affidavit. While Mr Silva sought to read the affidavit, Mr Swan objected and what followed was dealing with that objection. No ruling was ever made admitting the affidavit into evidence. Having said that, on an apprehended bias application, nothing turns on such an error by the FCCA Judge since, of itself, it is difficult to see how such an error would lead a fair-minded lay observer to apprehend bias on the Judge's part. Appellable error on a matter of law is a separate claim to a claim of apprehended bias. 98 While the FCCA Judge used exaggerated language at T11 ("you can't have greater disclosure than tendering evidence in court because it's in the public domain. The Sydney Morning Herald can report on what is in the affidavit if it wants to", the argument that a fair-minded lay observer would see it as adding to grievances existing before (even though it appears that the applicants and Mr Silva felt aggrieved subjectively) lacks merit, since such an observer would not have perceived error or bias in the FCCA Judge's direction that Mr Swan be allowed to finish his submissions before Mr Silva made his. That is particularly so in circumstances where the FCCA Judge had actively engaged with both counsel in relation to the positions they were taking on s 135 and 122 of the Evidence Act, respectively. In a context of adversarial litigation, the argument that it would be apparent to a fair-minded lay observer that Mr Silva was intimidated lacks merit. He maintained his position that, as a matter of law, privilege was maintained until an affidavit was "accepted". On the basis that it had been "accepted", each of Mr Silva and the FCCA Judge then proceeded on the basis that the affidavit was in evidence and privilege was waived; Mr Swan had always maintained the position that privilege had been waived. It then became unnecessary for the FCCA Judge to receive submissions on the authority or factual matters which had been raised in Mr Swan's submissions opposing the admission of the affidavit into evidence and Mr Silva did not again press for the FCCA Judge to consider it nor did he make any submission to the FCCA Judge on 15 June 2018 that his Honour was preventing him from doing so. 99 In relation to the particulars in paragraph (b): (1) In relation to [66(a)], as previously said, a fair reading of the transcript is that the FCCA Judge struggled to understand the submissions Mr Silva was making on privilege; equally Mr Silva struggled to understand the position as to the interpretation of s 122 which the FCCA Judge put to him. As noted above at T36-37, Mr Silva in fact clarified the position with respect to Ms Anang. (2) In relation to [66(b)], the FCCA Judge's position is that, by itself, his display of impatience would not, of itself, lead a fair-minded lay observer to apprehend that he was bias. Such a position is supported by Kirby JA's observations in Galea v Galea . This particular refers to unspecified "earlier behaviour", but if that is a reference to the FCCA Judge allowing Mr Swan to continue with his submissions despite Mr Silva's intervention, as that course reflects the normal situation, it is difficult to see how that conduct taken with the impatience would lead a fair-minded lay observer to apprehend bias. (3) The submission in relation to [66(e)] lacks merit; it is not true that Mr Silva was "not allowed" to take the FCCA Judge to the authority, he was told that he would be allowed to after the issues of interpretation of s 122 of the Evidence Act were addressed, but it became unnecessary once it was accepted that FKW17's affidavit was in evidence and, on Mr Silva's argument, privilege was then waived. (4) The particular relating to [67] lacks merit for the reasons set out at [98] above. 100 Accordingly, this ground lacks sufficient merit to warrant its consideration on appeal.

(4) His Honour erred at [71]-[73] in that his Honour failed to understand the context in which the applicants claimed that the Judge accused them of two matters. 101 Again, the applicants' written submissions replicated the particulars which are as follows (as written): (a) The observer would have considered the different standards of treatment meted out to the applicants and the Respondents. The applicants were accused of some inadequacies, which were really not and they were deliberate choices. (b) The applicant had no onus to attach the documents. There was no inconsistent behaviour; and. (c) Where the serious and multifaceted failures of the Respondents were either defended by the Judge or passed without comment, the observer would see why there was a need for a language (only directed at the applicants) that appears to accuse the applicants of certain behaviour.

Consideration 102 In his oral submissions, Mr Silva confirmed that one of the matters of which the FCCA Judge "accused" the applicants was inconsistent behaviour. It appears that this is a reference to T10 and the discussion between the FCCA Judge and Mr Silva in which the FCCA Judge put to Mr Silva that the operation of s 122(2) of the Evidence Act (contrary to Mr Silva's submission relying on s 122(3)) is "not a question of disclosure; it's a question of whether you've acted inconsistently with asserting your privilege". Mr Silva submitted to this Court that disclosure and privilege are two sides of the same coin. He said that what the FCCA Judge said was unnecessary and created tension and hostility. 103 The Court perceives no error in the FCCA Judge's finding at [73] that a fair-minded lay observer would not have apprehended that he accused the applicants of acting inconsistently with the assertion of privilege, but rather, the FCCA Judge was informing Mr Silva that that was a question he would have to address. Arguably, it was the FCCA Judge's duty to do so. As previously mentioned, the AWS and submissions to this Court appear to proceed on the basis that the FCCA Judge was casting a slur on the integrity of the applicants and Mr Silva in doing so; that is a misreading of what was occurring as revealed by the transcript. 104 Mr Silva explained in his oral submissions that the second basis for this ground is that the FCCA Judge said (at T32.30) "Your client has chosen not to annex those documents in the affidavit", when the applicants had no obligation to do so. While that is true, it is also true that it is necessary to look at the context in which the statement was made. The context is the call for documents made by Mr Swan and Mr Silva's failure to understand that, as a result, it would be necessary to see if the applicants held any documents that would respond to the call. The transcript is as follows: MR SILVA: Because it was not - we didn't understand that it was being asked from us. That was an honest thing, your Honour, otherwise we were - because we were expecting all the documents from Christopher Levingston and - - - HIS HONOUR: Look, your client has put on an affidavit about advice that they received and haven't received. · MR SILVA: Yes. HIS HONOUR: They put on an affidavit. MR SILVA: Yes. HIS HONOUR: Your client has chosen not to annex those documents in the affidavit. MR SILVA: That's correct, your Honour. HIS HONOUR: Right. And it's clear to me that Mr Swan wants to see if your client has any of those documents. MR SILVA: Yes. No, it's- - - HIS HONOUR: And you're trying to tell me that you did not understand that your clients would be required to undertake inquiries to produce any of those documents. MR SILVA: Correct, your Honour. That's - that's an honest statement because we were all expecting all documents to come from Ms Anang. 105 It would be clear to a fair-minded lay observer that the impugned statement by the FCCA Judge was made as a step in reasoning, not as a criticism of the applicants' failure to attach documents to FKW17's affidavit. 106 This ground lacks sufficient merit to warrant is reconsideration on appeal.

(5) His Honour erred in the way he assessed the potential apprehension of the observer in relation to the call for documents incident 107 In written submissions, the applicants submit that this ground relates to the Reasons at [74]-[81]. Otherwise, the submissions reflect the particulars which are as follows (as written): (a) The failure of his Honour was the inability to put things in the context of overall matters of grievance as to what happened before the incident; (b) There is simply no reason why the judge would get upset for such a failure on the part of Mr Silva and there must have bene other reasons; (c) The judge didn't get angry at the Respondents for their significant failures at any time during the hearing and he was absolutely courteous to them; and (d) It was one thing, just adjourning the hearing for a short time and it is another to tell the Court that the he wants to compose himself, implying that Mr Silva had done something so horrible that the judge had to compose himself. 108 In his oral submissions, Mr Silva submitted that it was not explicable how the FCCA Judge could be so upset as to leave the bench and come back in circumstances where there was no clarification that the call was directed at the applicants and all of the discussion had been about getting documents from the former lawyers and Mr Silva apologised for the misunderstanding concerning the call. Mr Silva submitted that "everybody" knows that for the FCCA Judge to have done that counsel "must have done something terribly wrong". In dialogue with the bench, Mr Silva submitted that the fault lay with the Minister for having failed to do anything since FKW17's affidavit was filed in January 2018.

Consideration 109 The continuing theme of Mr Silva's submissions on the application for leave as a whole is that the applicants are "model litigants" and blameless while the Minister did not meet that standard because he did not issue a notice to produce or subpoena documents relevant to FKW17's affidavit. Many of the submissions made in the AWS and the written submissions on this and other grounds refer to "grievance" and "grief". As submitted by the Minister, this is not a clear expression but the Court takes it to refer to the matters raised in Mr Swan's submissions opposing admission of FKW17's affidavit into evidence. Mr Silva's submissions are sometimes redolent of offence and (as said in the AWS) humiliation at the FCCA Judge saying that he needed to leave the bench to compose himself. The propensity for parties and their counsel to take offence at adverse rulings and to be overly invested in the outcome of procedural matters is why the standard for apprehended bias is not their perceptions but the more objective perceptions of a fair-minded lay observer. 110 In the Court's view, the perceptions ascribed to a fair-minded lay observer in relation to the incident the subject of this ground by the FCCA Judge at [79] are accurate and this ground has no merit. 111 While it is regrettable that judges sometimes display irritation at events that unfold in a Courtroom, it is appropriate to bear in mind the passage from Kirby JA's judgment in Galea v Galea at 279 recognising that judges sometimes display human frailty but that is not, by itself, indicative of actual or apprehended bias. 112 In this case, it appears that, though having practised since 1999, Mr Silva had not experienced a call for documents, something which occurs in most court rooms regularly. On a fair reading of the transcript, his Honour was attempting to deal with the issue of privilege efficiently and with minimal impact on the hearing and so that the Court was appropriately informed on issues which went to the basis of the applicants claims. In that context, it appears from the transcript that the FCCA Judge experienced some frustration at Mr Silva's genuine failure to understand all of the implications of a call being made. 113 The speculation in the particulars to this ground that there must be some other reason is not supported by any evidence. The suggestion that, to avoid an apprehension of bias, it was necessary for the FCCA Judge to have demonstrated anger at the Minister's failure to take steps to get documents relevant to FKW17's affidavit entirely lacks merit. The failure of Mr Silva to understand the implications of a call is a proximate event not consistent with the efficient conduct of business in a busy court; such conduct is often frustrating in the moment but it is hardly a requirement of impartiality that judges demonstrate anger at all failures by parties to conduct their litigation efficiently lest they be perceived to be biased. No one knows how the FCCA Judge might have ruled on the Minister's objection based on s 135 of the Evidence Act in light of the failure of the Minister to take timely steps to call for documents and his Honour made clear that that failure was a factor relevant to the exercise of discretion under that section. 114 Further, the steps taken by the FCCA Judge, to leave the bench and give himself a small amount of time to compose himself were wise, if he felt frustrated. It was in the interest of the fair conduct of the hearing. While it might have been better if the FCCA Judge had offered no explanation, in the Court's view the fact that his Honour said he needed to compose himself has no impact on the merit of this ground. 115 This ground has insufficient merit to warrant its consideration on appeal.

(6) His Honour erred in dealing with the allegation of lenient treatment of the party at fault 116 The applicants' written submissions reflect the particulars to this ground which are as follows: (a) The observer would see the matter in [82(a)] as a reluctance to say anything to upset the First Respondent which is contrary to how he was dealing with the applicants; (b) The observer would see that the judge was trying to find reason to support the First Respondent by asking hypothetical question from the applicants which had no purpose; and (c) The observer would see that the Judge had no concern contrary to principles of civil litigation that First Respondent only did something the evening before the hearing and would be questioning the attitude and impartiality of the Judge.

Consideration 117 These grounds appear to relate to three matters identified by the FCCA Judge at [82] where it was said: 82. The AWS claims the Minister was at fault, and the Judge treated the Minister leniently for his fault. The AWS makes three claims: a) The Judge "did not accuse" the Minister "the same way" the Judge "accused Mr Silva because they were the one who are supposed to put the evidence to challenge our affidavits". The AWS particularly relies on the Judge stating to Mr Swan "nothing I'm saying is even a preliminary to a criticism" in the course of the Judge noting that the Minister's not having sought to obtain by subpoena or notice to produce documents evidencing communications between the applicants and their former lawyers might prevent the laying of a foundation for an objection based on s.135 of the Evidence Act. b) The Judge "supported the First respondent by asking the hypothetical question, that even Counsel for the First respondent didn't dare put forward". That is a reference to that part of the transcript I have reproduced in paragraph 7 of these reasons commencing with the words: "Had the Minister issued a subpoena to the lawyer or issued a notice". The AWS asks why the Judge would talk about the hypothetical situation. c) The Judge did not ask about "the reasonableness of contacting the applicants the day before to speak to Christopher Livingstone [sic] and Associates". 118 In relation to particular (a) and [82(a)], Mr Swan submitted that this appears to allege that a fair-minded lay observer would conclude from the FCCA Judge's statement to Mr Swan that "nothing I'm saying is even a preliminary to a criticism" that the FCCA Judge was reluctant to criticise or upset the Minister. However, this remark must be considered in its context. The remark occurred early in the hearing (at T6.42-43) while Mr Swan was explaining the Minister's objection to FKW17's affidavit. The fair-minded lay observer would have appreciated that the FCCA Judge was attempting to understand the factual circumstances relevant to the objection. 119 The Court notes that immediately after the FCCA Judge's quoted remark, his Honour goes on to put to Mr Swan the issues that might arise in the exercise of discretion under s 135 of the Evidence Act arising from the fact that the Minister did not seek production of documents under subpoena or notice produce gave rise to. 120 Given that the remark was made as a preliminary to raising issues arising out of the Minister's inaction, it would be difficult to persuade a Court that a fair-minded lay observer would perceive unwillingness to upset or criticise the Minister. This ground lacks merit 121 In relation to particular (b), the use of a hypothetical question by Judges is common, and in this case, a fair-minded lay observer would have appreciated that it was a tool in his Honour's effort to explore the applicants' position on the issue of privilege and waiver in a context where Mr Silva raised the "important matter" of the Minister's failure to do anything to obtain documents relevant to FKW17's affidavit for six months until the night before the hearing. Such a fair-minded lay observer would not have apprehended bias by reason that the FCCA Judge explored the practical consequences of that "important matter". As previously noted, the FCCA Judge actively interrogated both counsel concerning the submissions they put forward. In that context, there appears to be no merit to the claim that such an observer would reasonably apprehend that the FCCA Judge was trying to find reasons to support the Minister by asking that question. 122 As to particular (c), there is no basis established for the ground that the fair-minded lay observer would see that the FCCA Judge had "no concern" for the fact that the Minister only did something on the night before the hearing, contrary to the principles of civil litigation. As said above, the transcript demonstrates that the FCCA Judge actively interrogated Mr Swan concerning the impact of the failure to seek production of documents relevant to FKW17's affidavit earlier than he did in the context of the discretion to be exercised under s 135 of the Evidence Act. 123 This ground has insufficient merit to warrant its consideration on appeal.

(7) His Honour erred the way the costs issue was handled 124 Again, the written submissions mirror the particulars in the draft notice of appeal as follows: (a) The observer would understand that the privilege issue had nothing to do with costs on that day because documents should have been obtained through a Notice to Produce or Subpoena (b) That it was clearly the First respondent to blame for the proceedings not going forward; (c) That they should have paid the costs; and (d) That it was one party and bot both parties to blame.

Consideration 125 This ground plainly lacks merit. The FCCA Judge dealt with the issue of costs at [86]-[87]. The remarks set out in the Reasons at [18] would lead a fair-minded lay observer to conclude that the FCCA Judge was reacting to Mr Swan's indication that the Minister would seek cost after Mr Silva admitted that he had not fully understood what was meant by a call. It is to be inferred that the FCCA Judge was seeking to deter such an application for costs. Costs remain reserved: see [21] above. Mr Swan noted that no costs application was in fact made by either party. There appears no error in the FCCA Judge's finding at [87] of his Reasons; a fair-minded lay observer would note that the process for determination of costs was an issue which can only arise when an application for costs is made and the language used by the FCCA Judge is not such that a fair-minded lay observer would infer that the FCCA Judge had formed a view as to "blame". 126 This ground lacks all merit and consideration on appeal is not warranted.

(8) His Honour erred by failing to consider the affidavit of Counsel which was put forward at this Honour's request 127 The particulars of this ground are as follows: At [91], his Honour treated as irrelevant the affidavit of the Counsel that put forward his view of the apprehension. Although the view of the complainer is not to be confused with that attributable to the observer, if it can be justified objectively it becomes relevant. See [24]. So there is utility in considering that and it should not have been considered irrelevant.

Consideration 128 The affidavits referred to in this and the next ground are in evidence. It is not clear to what the reference to [24] in these grounds relates. 129 Mr Silva submitted that he did not accept that the individual parties' views are not relevant on an application relating to apprehended bias; he says that it was open to the Court to take into account any objective material. Mr Silva made no attempt to identify what that material might be. 130 As observed by the FCCA Judge at [91], Mr Silva's affidavit affirmed on 12 July 2018, contains, almost exclusively, a recitation of Mr Silva's subjective views, feelings and beliefs and contained nothing relevant to the central issue of whether a fair-minded lay observer might reasonably apprehend that FCCA Judge might not determine the extension of time application and the judicial review application according to their merits. The transcript of the hearing on 15 June 2018 was otherwise in evidence. 131 This ground lacks sufficient merit to warrant consideration on appeal.

(9) His Honour erred by failing to consider the affidavit of the second applicant which put forward her views about the apprehension of bias 132 The particulars of this ground are as follows: At [91], his Honour treated as irrelevant the affidavit of the Second Applicant that put forward her view of the apprehension. Although the view of the complainer is not to be confused with that attributable to the observer, if it can be justified objectively it becomes relevant. See [24]. So there is utility in considering that and it should not have been considered irrelevant.

Consideration 133 FKW17's affidavit affirmed on 11 July 2018 was also not admitted into evidence on the recusal application on the basis that it lacked relevance. As pointed out by the Minister, that affidavit contains material related to matters before the hearing on 15 June 2018 which are plainly not relevant and a range of other observations concerning her reactions and those of Mr Silva to events which occurred on the evening of 14 June 2018 and at the hearing the next day. The views are subjectively and sometimes emotively expressed and do not assist in making the objective determination required on apprehended bias applications. 134 This ground lacks sufficient merit to warrant consideration on appeal.

WOULD SUBSTANTIAL INJUSTICE BE SUFFERED BY THE APPLICANTS IF LEAVE WERE REFUSED, ASSUMING THE FCCA JUDGE'S DECISION TO BE WRONG 135 As noted previously, no appeal lies from a decision of a FCCA Judge whether to extend time to make a judicial review application: s 476A(1) of the Migration Act. If leave to appeal is refused, then the FCCA Judge about whom the applicants have claimed apprehended bias will determine that application, which is a discretionary decision. Those factors weigh heavily in favour of the grant of leave where there is doubt about the decision the subject of the application of leave to appeal. However, the Court is not satisfied that there is doubt about the FCCA Judge's decision or that substantial injustice will result from refusing leave. I certify that the preceding one hundred and thirty-five (135) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.