Disqualification application
31 Mr Martin made the disqualification application orally immediately after the Court delivered ex tempore reasons for dismissing the adjournment application.
32 In dismissing the disqualification application I explained that my oral reasons would be brief, and that the Court would elaborate on those reasons in writing. I proceeded in that way because it was not expedient to further delay the progression of Mr Hillier's interlocutory application. Together, the adjournment application and the disqualification application had consumed the better part of the day and it was neither appropriate nor practicable to give detailed reasons for rejecting the multiple bases advanced by Mr Martin in support of the disqualification application now set out below. In those circumstances the written reasons that follow will be more comprehensive than those delivered orally. Whilst they add to the oral reasons, they should not be interpreted in a manner inconsistent with them.
33 The event said to justify my disqualification was my conclusion (expressed in the course of delivering ex tempore reasons on the adjournment application) that it was reasonable to infer that the existence of the Supreme Court proceeding had come to the respondents' attention (including the attention of Mr Martin) "shortly after they were commenced". Mr Martin submitted that the Court's conclusion was erroneous because, he asserted, the Supreme Court proceedings had been filed on 28 April 2022 but had not come to the respondents' attention until 23 May 2022 when the joinder application was served. From that starting point, Mr Martin's submissions raised multiple grievances concerning the history of the proceedings more generally. That history was summarised by Mr Martin from the bar table without reference to written materials. As explained below, the submissions in significant respects proceed from an inaccurate history of the proceedings and to that extent I did not accept the version of events upon which the application was based.
34 Mr Martin's journey through the history of the matter appears to have been undertaken for the purpose of demonstrating that the Court's erroneous evaluation of the time between the commencement of the Supreme Court proceeding and it becoming known to the respondents was "typical" of the Court's conduct of the proceedings from the outset. In that way the asserted error was the launch pad by which Mr Martin traversed a wide array of topics, whether or not they bore on the personal interests asserted by him on the interlocutory application.
35 The disqualification application was made by Mr Martin as a non-party. Mr Manetta told the Court that the application had been made without notice to him, and that he had not received instructions to join on the application on behalf of either of the respondents. It was plain that Mr Martin (as the sole director of Operations) had not instructed Mr Manetta to adopt his submissions, nor had he caused Operations to make its own application for an order that I be disqualified. No like application was made on Mrs Martin's behalf.
36 In the circumstances, an issue arose as to whether or not Mr Martin should be granted leave as a non-party to make a disqualification application in his personal capacity in circumstances where no party to the proceeding advanced the same submissions. I concluded that Mr Martin should be granted that leave, including because I considered that the orders sought on Mr Hillier's interlocutory application had the potential to affect his personal financial position and potentially his reputational interests.
37 The test for apprehended bias is well established. Sometimes described as the "double might" test, it is as explained by the majority judgment of the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (Gleeson CJ, McHugh, Gummow and Hayne JJ):
6 Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
…
8 The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
(footnotes omitted)
38 In dismissing the disqualification application, I did not accept that the description "shortly after they were commenced" was an error, or at least an error undermining the course of reasoning on the adjournment application. The description of the period between 29 April 2022 and 23 May 2022 as "short" is to be understood relative to the passage of time that had since passed through to the hearing date of the hearing of Mr Hillier's interlocutory application on 25 July 2022. Mr Hillier's interlocutory application was filed a month after the allegations of conspiracy were made known to the respondents and the hearing date for the interlocutory application occurred a further month hence. The relevant conclusion was that the circumstances ultimately culminating in the joinder application were made known to the respondents at a time (relative to the hearing date of the interlocutory application) such that it could not be said that they did not have sufficient time to bring an application to be released from the Undertaking by reference to any alleged improper conduct on Mr Hillier's behalf in failing to disclose his intentions. The respondents brought no such application notwithstanding that they were granted liberty to apply to vacate the hearing date. The disqualification application should be dismissed on the discrete ground that the "error" said to be "typical" of all other complaints was either not made or was immaterial.
39 Whether error of the kind complained of gives rise to an apprehension of bias must of course, depend on all of the surrounding circumstances. On the assumption that the expression "shortly after" was an erroneous description, I would conclude in that event that such an error in the course of judicial reasoning is insufficient to found an application for disqualification on the grounds of apprehended bias. I would reach the same conclusion having regard to the remainder of Mr Martin's submissions to the effect such an error was "typical".
40 Mr Martin submitted that the Court's choice of phrase was the latest in a series of events that, considered in combination, supported a conclusion that a fair-minded, informed, lay observer might reasonably apprehend that the Court might not bring an impartial mind to the resolution of the issues to be determined on Mr Hillier's interlocutory application and in the proceedings more generally. As I understood Mr Martin's submissions, a pattern emerged from the history of the proceedings whereby the Court had shown itself to be too ready to accede to Mr Hillier's various applications in the proceedings and to ignore evidence that (in Mr Martin's submission) demonstrated conduct on the part of Mr Hillier and his legal advisors that he variously described as egregious and unethical.
41 In my oral reasons I described the history of events asserted by Mr Martin as inaccurate and I will now elaborate on the several respects in which they bear that character. For the purposes of applying principles in relation to apprehended bias, the fair-minded observer may be taken to know the actual history of the proceedings.
42 Mr Martin's catch-all contention that the Court ought to have taken action of its own initiative to address certain events as they occurred is especially rejected. It has always been open to both of the legally represented respondents to file an application with a view to having the Court make such orders as might be justified by the proven facts and the relevant law by reference to the allegations of wrongdoing made against Mr Hillier by Mr Martin. In fact, when acting in the capacity of Operations' legal representative, Mr Martin foreshadowed a series of interlocutory applications, including an application for summary judgment, none of which were filed before the matter was set down for trial. Both respondents readied themselves for trial without bringing any interlocutory application directly founded on allegations of wrongdoing by Mr Hillier now relied upon, and bringing no further disqualification application (other than that mentioned below).
43 When the proceedings were first commenced on 11 August 2020, Mr Hillier sought urgent interlocutory relief in the following terms:
2 Pursuant to Rule 7.32, the Applicant also claims the following interlocutory relief.
2.1 The Respondent be restrained and an injunction be granted restraining the Respondent, whether by herself, her servants or agents or otherwise, until further order from making any payments out of the revenue, funds or assets, or otherwise dealing with the funds or assets, of the entities, trusts or businesses which trade under the Nordburger name or brand ("the Nordburger businesses") except in payment of the expenses of the Nordburger businesses in the ordinary course of business.
44 The factual foundation for that relief included material contained in an affidavit of Mr Hillier sworn on 11 August 2020 in which he said:
85. I am aware that Mr Martin has been involved in long running, hotly contested litigation in this Court and that there are a number of adverse costs orders against him in relation to those proceedings.
86. I hold grave concerns that the Nordburger joint venture funds and profits have been and will continue to be dissipated as a result of Mr Martin's litigation in this Court given that, to the best of my knowledge and belief, Mr Martin has not been gainfully employed since about July 2016 and, to the best of my knowledge and belief, Mr Martin's only source of income is through the Respondent.
45 The same allegation was extracted in correspondence from Mr Hillier's solicitor to a Registrar of the Court to support an assertion that an urgent hearing was necessary.
46 It is Mr Martin's position that the allegation of wrongdoing implicit in Mr Hillier's affidavit was made without any proper factual foundation.
47 As I understood Mr Martin's oral submissions, he asserted that I have previously concluded that there was no proper basis for the allegation made by Mr Hiller against Mr Martin. If that was the intent of his submission, it is not correct for reasons explained below. He also submitted that the allegation had been "conclusively disproven" by material that he relied upon at a hearing on 11 May 2021.
48 The issue before the Court on 11 May 2021 was whether an order that I be disqualified should be made on Mrs Martin's application. On that occasion I made no finding on the factual question of whether Mr Hillier had a proper basis to make the allegations against Mr Martin on 11 August 2020. The disposition of that application did not require the Court to resolve any such issue: see Hillier v Martin (No 2) [2021] FCA 509 (Hillier No 2).
49 Mr Martin submitted that he had also raised the matters before the Court on 16 March 2021 when he was granted leave in his personal capacity to apply for a suppression order. That is correct. In explaining why the suppression order should not be made, I observed that Mr Martin had deposed in an affidavit that he disputed the allegations and complained of the absence of a proper factual foundation for them: Hillier v Martin [2021] FCA 269 (Hillier No 1) at [34]. In addition, I said:
33 … I accept the submission that the factual bases for the allegations made against him were not only insufficient to justify an urgent hearing to proceed, but were weak and, I consider, fundamentally so. However, I do not consider the allegation against Mr Martin to have been the only premise upon which the application for interlocutory relief was made, even though it was a premise upon which significant emphasis was placed. The other premise for the application was the unsuccessful attempts that had been made by Mr Hillier to obtain financial information about the conduct of a business that counsel for Ms Martin acknowledged Mr Hillier had some interest in.
…
35 I do not propose to draw any final conclusion as to whether or not the filing of the affidavit of Mr Hillier or the making of submissions in relation to that affidavit constitute such a serious abuse of the Court's processes that the material should be removed from the Court record. The application made by Mr Martin at the commencement of this hearing was one for a suppression order under s 37AF of the Act.
…
37 To the extent that it is submitted that the administration of justice is brought into disrepute by the making of the allegations, again, I consider that Mr Martin is a participant in the proceedings in the sense that he has willingly given evidence in support of the respondent's case and in doing so has countered the allegations made against him and strenuously so.
…
39 As to the allegations of professional misconduct directed against legal practitioners representing the applicant in the proceedings, I do not consider that to be a matter that is appropriate to be tried on an oral application for a suppression order made without notice to the practitioners concerned.
50 Those passages contain no positive finding that Mr Martin had "conclusively proven" that the allegation made by Mr Hillier was baseless, nor that Mr Hillier's advisers had been guilty of professional misconduct.
51 What the passages demonstrate is that it has at all times since the commencement of the proceedings been open to the respondents (as and when they were joined) to make an application for relief by specific reference to the allegation. On such an application, an occasion might arise for the Court to conclusively determine the factual question as to whether Mr Hillier had a proper factual foundation for making the allegation. I declined to take the matter further in the context of the suppression order. My "failure" to do so is one of many factors relied upon as a basis for disqualification.
52 Mr Martin submitted that the Court had "studiously and carefully" ignored the "clear signs of lack of candour and lack of integrity" and a "predilection for sharp tactics" which amounted to "dishonestly obtaining an advantage" in the proceedings. In support of that submission it was alleged that the Court had facilitated Mr Hillier's access to the Xero database "on the assumption ... that there was something of merit or relevance within the database that might make good these scandalous allegations". That, too, is an incorrect statement bearing no relation to the historical facts.
53 The facts are that Mrs Martin, ably represented by Senior Counsel, consented to an order that the parties give standard discovery. Mrs Martin also acceded to an order that further agitation of Mr Hillier's original interlocutory application made on 11 August 2020 be deferred until discovery was complete. At a hearing on 12 December 2020 Senior Counsel for Mrs Martin correctly described that course as "a sensible one". Senior Counsel for Mr Hillier at that time expressly reserved the right to seek to have the hearing of the interlocutory application resumed at a later time. The Court made orders reflecting the parties' consensus, including to the effect that further consideration of Mr Hillier's application for interlocutory relief be deferred until discovery was complete.
54 There followed many months of interlocutory dispute about the content of Mrs Martin's obligations under the standard discovery order. Various arguments advanced by Mrs Martin on that topic were rejected and an application for leave to appeal was refused. There then followed various unsuccessful attempts by Mrs Martin and Operations (then joined as a respondent) to resist production of the material contained in the Xero database on bases including belated claims of privilege. All of that goes some way to explain why Mr Hillier did not obtain access to all of the Xero database until 22 March 2022, more than 15 months after the order for standard discovery was made. The suggestion that the Court made discovery or production orders to enable Mr Hillier to search for material that would make good the allegations against Mr Martin is disconnected from the real events in the case. The material contained in the Xero database formed the basis of the concerns sought to be addressed by Mr Hillier's prompt applications for restraints, including the applications culminating in Hillier No 11 and Hillier No 12. His use of the information for that purpose does not amount to misconduct nor is it a circumstance fulfilling the test for apprehended bias, whether considered alone or in conjunction with other events.
55 Mr Martin went on to submit that the Court had:
… exhibited a - in my respectful submission, a keenness to facilitate any opportunity sought by the applicant and his lawyers to uncover or find some evidence of misconduct, dishonesty, corruption, what have you, on my part in particular, and on the part of the first respondent. …
56 That submission preceded a series of complaints about an alleged lack of procedural fairness affecting orders made on 29 March 2022 and 6 April 2022. Some background to those orders is given in Hillier No 11 and Hillier No 12 at [18] to [26]. It is necessary to repeat some of it here.
57 Mr Martin submitted that a hearing on 29 March 2022 the Court had permitted Mr Hillier to pursue an application for a receiver to be appointed. The Court on that day had before it minutes of order sought by Mr Hillier, including orders for the appointment of a receiver. I concluded that an application for an order providing for the appointment of a receiver was one that should be made by way of an interlocutory application filed in the proceedings and I fixed a deadline by which Mr Hillier should file any such application should he be advised to do so. The setting down of a date for the filing of any interlocutory application within a fixed time frame is an orthodox instance of the exercise of the Court's case management powers. An application for the appointment of a receiver was later filed but not pursued.
58 Mr Martin then submitted that at the hearing on 29 March 2022:
.. your Honour made an order granting interim relief in the nature of the freezing order that had been kept open since the original allegations based on allegations against me, unfounded, lacking any evidence, of fraud or a variety of it. And your Honour did so - made that order without having heard from the first or second respondent in circumstances where your Honour had been informed by counsel for the first and second respondent that not only did he not have instructions, he had not had an opportunity to read the material. This is an extraordinary circumstance in which the court might grant the drastic relief - even on an interim basis - of a freezing order.
59 That submission does not properly reflect all that occurred at the hearing. The events were described in Hillier No 11 (at [7]) as follows:
The hearing on 29 March 2022 proceeded as follows:
(1) Counsel for Mr Hillier asserted urgency attending the application but confirmed that he was still in the course of obtaining instructions as to what relief Mr Hillier might seek arising out of the financial information contained in the Xero Database. In asserting the urgency, Counsel said that an expert report obtained by Mr Hillier had indicated that the Nordburger business was trading whilst insolvent.
(2) The Court asked Counsel for the respondents whether there was any willingness on their part to give an undertaking in terms of the proposed restraint, to persist for seven days. Counsel said that he did not have those instructions. Counsel confirmed that he had not had the opportunity to read evidentiary material recently filed by Mr Hillier in support of the orders sought in his minute (which at that time included a Chartered Accountant Report annexed to an affidavit of Mr Phil Camens affirmed on 28 March 2022 'Camens Report').
(3) Counsel for the respondents proposed that the case management hearing be adjourned for a short period to allow Mr Hillier to file an interlocutory application and any further affidavits relied upon. Counsel said that on his brief perusal of the Camens Report the opinions expressed in it did not support Mr Hillier's assertion of insolvency.
(4) The Court invited submissions as to whether interim relief should be granted in the meantime.
(5) Counsel for the respondents said that he did not know what an undertaking in terms of the original restraint would prevent his clients from doing 'so I don't necessarily see the prejudice in such an order being made for a short period of time'.
(6) The Court observed that the order would plainly restrain the respondents from granting loans, making distributions, whether trust distributions or otherwise, 'and the like'. Counsel repeated that he did not have instructions to give an undertaking in terms of the restraint.
(7) The Court proposed that an interim injunction be made in the terms sought by Mr Hillier for a short period pending the filing of an interlocutory application in relation to the appointment of a receiver or like relief, and that the respondents be granted liberty to apply to vary or discharge the restraint at short notice.
(8) Counsel stated 'for the record' that the respondents did not consider that grounds for such an injunction arose 'but I do accept that in the absence of any prejudice your Honour's course is appropriate'.
60 The order was to remain in force for a matter of days pending any application by Mr Hillier may make for it to continue. The respondents were granted liberty to apply to vary or revoke the interim order at short notice.
61 Mr Martin did not elaborate on the submission that the order made on 29 March 2022 had a "drastic effect". Such a submission was not advanced by Senior Counsel for the respondents at the time. To the contrary, Mr Ower QC acknowledged that he could point to no prejudice. Mr Ower QC adopted a sensible approach in the above exchange, having proper regard to the legal and commercial context. Mr Ower QC must be presumed to have acted on the instructions of Operations in adopting that sensible and pragmatic approach.
62 It may well be the case that Mr Martin subjectively perceives the circumstances to give rise to an injustice. But that is not the test for apprehended bias. I do not consider that the fair-minded lay observer might apprehend that the manner in which the short hearing of 29 March 2022 was conducted might cause the Court to be unable or unwilling to bring an impartial mind to the issues to be determined, whether considered in isolation or in conjunction with the remainder of Mr Martin's submissions.
63 Mr Martin's submission that there has been a keenness to facilitate what would amount to an abuse of the Court's own processes cannot be sustained in light of the facts just described.
64 Mr Martin then repeated submissions concerning the circumstances in which the respondents' Undertaking was given. Mr Martin is correct that I declined to grant an adjournment to enable the respondents to prepare an application for orders that they be released from the Undertaking by reference to the conduct of Mr Hillier about which he complains. However, the Court has not precluded any such application being made or expressed any view as to its prospects of success. The fact of the matter is that the respondents (being the parties bound by the Undertaking) did not go so far as to seek to be released from the Undertaking when the hearing commenced on 25 July 2022. Rather, an application of that kind was merely foreshadowed by Mr Manetta and an adjournment sought to facilitate its preparation. The question before the Court was whether the adjournment should be granted for that purpose. The reasons for refusing to grant the adjournment do not venture into the merits of the foreshadowed application. Rather, they explain why in all of the circumstances the foreshadowing of the respondents' application did not provide a sufficient reason to grant them an adjournment. I do not consider that the fair-minded observer might perceive bias in the sense explained in Ebner by reference to the reasons for refusing to grant the adjournment on that basis, irrespective of whether the adjective "shortly" discloses an error.
65 Mr Martin further submitted that the Court was wrongly proposing to proceed on the basis of an amended pleading that Mr Hillier had not been granted leave to introduce. That is incorrect for the reasons already explained. Mr Martin's submissions on this topic ignored the allegation presently made at [64] of the Third Amended Statement of Claim, introduced by an amendment made on 11 December 2020:
64. Further, the Respondent has:
64.1 paid or kept to herself the profits of the Nordburger Joint Venture in excess of her entitlement to a share of the profits; and
64.2 paid to herself a salary of $200,000 per annum without providing services to the Nordburger Joint Venture commensurate with and justifying such payments.
66 In later repeating submissions on this topic, Mr Martin submitted that the reasonable observer would apprehend bias (in the sense described in Ebner) because the Court was proposing to grant interlocutory relief in circumstances where that relief was not connected to any final relief Mr Hillier had been granted leave to pursue. He said that the apprehension arose by reason of the Court's "failure to dismiss this application upon having apprehending that, in fact, the relief that is sought is related to a final relief for which the applicant has not been given leave to pursue". At the time of the disqualification application I had not been invited to dismiss the interlocutory application (presumably summarily) on that basis.
67 At the time of the disqualification argument, the question of whether or not the interlocutory relief was disconnected from or precluded by the final relief presently sought in the proceeding was a matter in respect of which the parties were entitled to be heard. The Court was under no obligation to accept Mr Martin's answer to that important question without first conducting a hearing of the interlocutory application on its substantive merits. Mr Martin's submission on this topics is reflective of a belief on his part that the very act of setting down applications made by Mr Hillier for hearing, is revealing in some way of impartiality on the part of the Court. Mr Martin went so far as to say that by proceeding to hear the interlocutory application, the Court was "threatening" to impose a restraint. The Court was doing no such thing. The Court was undertaking its duty to adjudicate upon an interlocutory application and to conduct a hearing for that purpose.
68 Mr Martin then submitted that other justices of this Court had published reasons that had been critical of his conduct "fairly or unfairly". He described the judgments as exhibiting a "prejudicial attitude" toward him. He referred to members of a Full Court expressing their disapproval about his conduct in raising allegations to the effect that another justice of the Court had committed certain wrongs before being appointed. He submitted that one of the members of the Full Court had since disqualified himself from hearing any other matter involving Mr Martin because of critical remarks his Honour had previously published in determining that different proceeding. He submitted that in all the circumstances a reasonable observer might apprehend that the comments of the other justices had impacted on my judgment so resulting in my tolerating "egregious and prejudicial contraventions of professional standards" by others. Mr Martin submitted that the fair-minded lay observer would apprehend that the disapproving attitudes of the members of the Full Court would be shared by me (or at least must be imputed to me), such that I must be assumed to regard him differently from other persons appearing before the Court. He submitted that Mr Hillier had sought to tactically exploit that circumstance from the outset of the proceedings and that I had been "inclined to permit that to occur". He then submitted that the tainted attitude (being the attitude imputed to me by the fair-minded observer) had been reflected "time and again" in the way in which I had conducted this proceeding.
69 To the extent that it was submitted that any previously published judgment was unfairly prejudicial to Mr Martin, that submission has not been made good by reference to the judgments themselves. This Court was not taken to the judgments upon which Mr Martin relied. For the purposes of what follows I will presume that Mr Martin was indeed criticised, including for conduct somehow connected with his raising an allegation of wrongdoing about another justice of the Court. He did not demonstrate that the criticism was unwarranted or otherwise unfair and I make no comment on that question.
70 Mr Martin's submissions assume that the fair-minded observer may be taken to have read judgments previously published by other justices of the Court that are critical of his conduct as a litigant in other proceedings. Proceeding from that assumption, I do not accept that the fair-minded observer would reason down the path of Mr Martin's submissions. I am not satisfied that the circumstance that other judges of the Court had made findings critical of Mr Martin might lead a fair-minded observer to apprehend that a different judge might be unable or unwilling to bring an impartial mind to the issues to be determined in this proceeding.
71 The allegation that the imputed negative attitude has been reflected "time and again" in these proceedings may be taken to incorporate the various grievances specifically dealt with in Mr Martin's other submissions and I will say nothing more about them. I reject the submission that the fair-minded lay observer would speculate in the same fashion as Mr Martin himself about the infection of minds throughout this Court insofar as the imputed negative attitude was to be connected (at least in the mind of the relevant observer) to those past events.
72 The observer is accurately informed and fair-minded. To the extent that this Court has exercised its powers such as to allow applications brought by (or accept submissions on behalf of) Mr Hillier, the observer must be taken to have an awareness of all of the surrounding circumstances, including the facts and circumstances set out in the many interlocutory judgments published thus far in the proceedings. Lamentably, the proceedings are beset with interlocutory dispute: see Hillier No 1, Hillier No 2, Hillier v Martin (No 3) [2021] FCA 709, Hillier v Martin (No 4) [2021] FCA 710, Hillier v Martin (No 5) [2021] FCA 949, Hillier v Martin (No 6) [2021] FCA 1009, Hillier v Martin (No 7) [2021] FCA 1221, Hillier No 8, Hillier v Martin (No 9) [2021] FCA 1319. However, it is not enough to show that the weight of the decisions have fallen in Mr Hillier's favour or even to point to instances in which the Court might have erred. If there be multiple judgments adverse to the respondents, I am not satisfied that the fair-minded observer might apprehend that the Court might not have brought an impartial mind to bear in resolving the controversies on their substantive merits as the Court assessed them to be.
73 It might also be that Mr Martin intended to refer to instances where I have voiced my own disapproval his conduct in these proceedings, although that is not at all clear. Mr Martin did not identify any particular instance upon which he sought to rely so as to make good any implied assertion that the Court's criticism of his behaviour was unwarranted or otherwise explained by a state of mind giving rise to an apprehension of bias in the relevant sense. That is enough to justify the rejection of any such submission, if it were made at all.
74 I have on occasions rebuked Mr Martin for (for example) presumptively assuming a position at the bar table without the Court's leave (when neither a party nor an advocate) or raising his voice over the voice of the Court in an attempt to have his concerns aired in priority over the orderly disposition of other matters requiring attention at a hearing. The fair-minded lay observer must be understood to observe those occasions in light of all of the surrounding circumstances. As I have mentioned, there was no attempt by Mr Martin to point to any particular instances, nor to explain how it might be perceived by the relevant observer as having any connection at all with the circumstance that members of a Full Court have previously published reasons containing criticisms of Mr Martin in his capacity as a litigant in other proceedings for any reason.
75 If I am wrong in that regard, I do not consider that the principles concerning apprehended bias extend to prohibiting a Court from controlling its own proceedings and upholding standards of ordinary courtesy so that hearings may proceed without undue disruption through the interlocutory stages. It cannot be the case that the Court must hold its tongue so as to allow a person in Mr Martin's position (being a likely witness at the trial) to engage in conduct at the interlocutory stages without being subject to the ordinary measures of instruction and control necessary for the orderly conduct of the litigation. The relevant observer may be understood to have some appreciation of the judicial task, including the Court's responsibility for exercising its procedural powers in a way that best promotes their overarching purpose: see s 37M of the Federal Court of Australia Act 1976 (Cth).