Hillier v Martin

Adjournment Application 5 At the time that Mr Hillier's interlocutory application was filed, judgment was reserved on an application to join additional parties to the action and to file a Fourth Amended Statement of Claim. That application was heard by Justice O'Sullivan. 6 The then-proposed new parties were Mr Stephen Williams and Norman Waterhouse Lawyers Pty Ltd. Mr Williams is a partner of Norman Waterhouse Lawyers and has, until recently, been the principal solicitor on the file for the first respondent, Mrs Victoria Martin, and the second respondent Nordburger Operations Pty Ltd. Mr Martin is the husband of Mrs Martin and is presently the sole director of Operations. Between 13 August 2021 and 19 October 2021 Operations was represented in the proceedings by Mr Martin. For reasons explained in Hillier v Martin (No 8) [2021] FCA 1272 (Hillier No 8), the Court made orders on 19 October 2022 restraining Mr Martin from continuing to act as the legal representative of Operations in connection with these proceedings. 7 As a consequence of the joinder application and the nature of the allegations made against them, it became necessary for Mr Williams and Norman Waterhouse Lawyers to cease acting for the respondents. A notice of ceasing to act complying with the Federal Court Rules 2011 (Cth) was filed on 23 June 2022. Also as a consequence of the joinder application, Senior Counsel previously retained by Norman Waterhouse Lawyers on behalf of the respondents was unable to continue to appear in that capacity. 8 Including because of the disruptions to the respondents' legal representation, there were three case management hearings following the filing of Mr Hillier's interlocutory application. The purpose of those hearings was to fix a date for the hearing of the interlocutory application and to fix deadlines for the filing of evidentiary and other materials. 9 On 30 June 2022 the Court made an order fixing a date by which the respondents may, if so advised, file and serve any affidavits upon which they might rely in opposition to the interlocutory application. Mr Martin made an oral application to be heard at the case management hearing and that application was granted. The Court made orders progressing the interlocutory application to a hearing to be conducted on 25 July 2022, including orders for the filing of materials by the respondents and Mr Martin in advance of that date. More specifically, the Court granted Mr Martin leave, in his personal capacity, to transmit to the Court an affidavit by which he was to specify any order he may seek to facilitate any grant of audience to him, together with minutes of orders sought, and written submissions. The Court made a further order permitting any application to vary the timetable to be made orally at the next case management hearing, set down for 5 July 2022. 10 On 5 July 2022, the Court again granted the respondents and Mr Martin liberty to apply to vary the programming orders previously made on 30 June 2022, including to vacate orders for the filing of affidavits and the hearing date itself. It permitted that liberty to be exercised orally at a further case management hearing to be conducted on 12 July 2022, provided that notice was given to Mr Hillier's representatives by no later than 5.00pm on the previous day. The liberty was granted because of submissions advanced by the respondents' new solicitor concerning the difficulties he may encounter by virtue of having been recently retained. 11 At the case management hearing on 12 July 2022, neither the respondents nor Mr Martin exercised the liberty to vary or revoke any of the programming dates. When prompted by the Court on 12 July 2022, they confirmed that they sought no orders on that day. 12 In advance of the interlocutory hearing, three affidavits sworn by Mr Martin were filed. The first of them was filed by Boylans Lawyers on behalf of the respondents on 12 July 2022, and the other two by Mr Martin in his then-asserted capacity as an "interested non-party" on 21 July 2022. 13 At the commencement of the hearing on 25 July 2022 the respondents were represented by their solicitors and Mr Michael Manetta of Counsel. Mr Martin appeared in his personal capacity. 14 For the respondents, Mr Manetta submitted that he had only recently been briefed as Counsel. Mr Manetta said that his difficulties were compounded by the circumstance that documents remained in the possession of Norman Waterhouse Lawyers. In considering that submission I had regard to the circumstance that the application to join Norman Waterhouse Lawyers had been filed in May, some two months ago. I expressed the view that the circumstance that Mr Ower QC (Counsel previously briefed by Norman Waterhouse Lawyers on the respondents' behalf) could not continue to appear for the respondents ought to have been apparent to them for some time, however I accepted that the issue was one that required some consideration to be given by Mr Ower QC himself. I explained that the circumstances affecting the respondents' legal representation was the very reason why I had previously granted liberty to the respondents (and Mr Martin) to vary or revoke programming orders, including to vacate the hearing date. I observed that neither the respondents nor Mr Martin had exercised that liberty. I was not satisfied that the respondents had acted promptly in applying for the adjournment that they now sought at the commencement of the hearing. 15 I observed that it was open to the respondents' new solicitor to apply for an adjournment on the basis the matter was fit for Senior Counsel and that he had not been able to engage counsel within a reasonable time in advance of the hearing after making prudent and timely efforts to do so. However, the respondents had adduced no evidence as to the efforts that had in fact been made and when they were first undertaken. I observed that rather than exercising the liberty to apply to vary or revoke the hearing date, the respondents had confirmed on 12 July 2022 that they sought no such orders. I expressed the view that the reasons advanced by the respondents for seeking the adjournment were in large part either known to them, or reasonably able to have been anticipated by them at an earlier time. 16 Mr Manetta and Mr Martin each foreshadowed that the respondents may make an application to be released from an Undertaking they gave to the Court on 29 April 2022. That Undertaking forms a part of the background to the matters determined in Hillier No 12. They sought the adjournment to permit them to prepare and file that application. I accepted that it would be expedient and efficient to have any such application heard at the same time as that part of Mr Hillier's interlocutory application. However, I considered that the relief sought by Mr Hillier was an order restraining future transactions and conduct that he otherwise submitted amounted to the wasting of an already deteriorating asset, the control and ownership of which was in dispute in the proceedings. By its nature, Mr Hillier's application for relief was one that ought to be set down and heard promptly in the ordinary course. I also had regard to the circumstance that the respondents had not offered an undertaking that would assure Mr Hillier that transactions of the kind that were of concern to him would not occur. I observed that the respondents had prepared an answer to the factual case put up by Mr Hillier to the effect that the transactions he complained of were not irregular. I expressed the view that the respondents ought to be in a position to argue the merits of the interlocutory application, including to put forward their factual explanations for the transactions that gave rise to Mr Hillier's concerns. 17 The foreshadowed application for the respondents to be released from the Undertaking given on 29 April 2022 was based on an allegation that Mr Martin, as director of Operations, would not have caused that company to give the Undertaking had he been made aware that Mr Hillier had, on the day that the Undertaking was provided, filed proceedings in the Supreme Court of South Australia. No equivalent evidence was advanced by or on behalf of the first respondent Mrs Martin. 18 The reference in my oral reasons to the commencement of the Supreme Court proceedings on 29 April 2022 was later corrected to record their commencement on 28 April 2022. 19 As I understood the submission, the Supreme Court proceeding was one in which Mr Hillier alleged causes of action founded in conspiracy involving Norman Waterhouse Lawyers, being allegations of the same kind later sought to be made in this proceeding by way of the joinder application. Understandably, the allegation of conspiracy against Norman Waterhouse Lawyers is the reason why it became necessary for the firm (and the file principal Mr Williams) to cease acting for the respondents. As I understood the submissions made by the respondents and Mr Martin on the point, the Undertaking given on 29 April 2022 was offered on the basis that the respondents at that time intended to commence proceedings in the High Court of Australia for an order that I be disqualified from continuing to preside in the proceedings. That intention was made known to the Court itself at the time when the Undertaking was given. The Court asked the respondents to confirm that they accepted that the Undertaking was binding upon them and that any breach of it would sound in penal consequences as through an order had been made in the same terms. Mr Ower QC confirmed that both respondents accepted that to be the case. 20 As I understood the submission, Mr Martin (at least) intended to cause Operations to seek to be released from the Undertaking on the basis that had he known about Mr Hillier's intention to make the joinder application, he would have been made aware of the impending disruption to Operations' legal representation and he would not in those circumstances have instructed Counsel to give the Undertaking to the Court on Operations' behalf. 21 In my oral reasons, I observed that although there was no evidence directly on the point, it was reasonable to infer that the existence of the Supreme Court proceeding came to the respondents' attention, including to the attention of Mr Martin, "shortly after they were commenced". 22 I concluded that Mr Martin and the respondents had sufficient time to apply to have the Undertaking set aside or for the respondents to be released from it, including on the asserted basis that it been improperly procured. I expressed the view that the obvious time for them to foreshadow such an application was at any one of the several case management hearings concerning the setting down of Mr Hillier's interlocutory application for hearing. 23 The respondents and Mr Martin also submitted that there had been a fundamental change in Mr Hillier's case in the proceedings such that, they alleged, there was no longer a serious issue to be tried. It was submitted that Mr Hillier could not proceed on the same basis underpinning his application for injunctive relief in Hillier v Martin (No 11) [2022] FCA 407 (Hillier No 11). In rejecting that submission I observed that the interlocutory application was to be decided on the pleadings as they presently stood (namely, by reference to the Third Amended Statement of Claim) and not by reference to amendments in respect of which leave had not yet been granted. I emphasised that the application to amend the pleadings was one that had been known to the respondents and Mr Martin for some time. I expressed the view that should it transpire that the pleadings were amended in the future, that might present an occasion for any orders the Court might make on Mr Hillier's interlocutory application to be re-visited. 24 Mr Manetta further submitted that he was prejudiced by the late filing of written submissions by Mr Hillier's legal representatives. He ventured the opinion that the written submissions appeared to advance contentions that were factually or legally different from the foundation upon which the interlocutory application was originally based. As to that asserted disadvantage, I concluded that the prejudice could be avoided by the Court refusing Mr Hillier leave to rely on lengthy written submissions that had been provided to the respondents and Mr Martin only a short time before the hearing. As to the assertion that the submissions disclosed a change in position giving rise to prejudice, I observed that the interlocutory application had always been expressed in terms that sought to restrain the respondents from making any payments out of the fund's assets, entities, trust and businesses that trade or conduct business under the Nordburger brand to Mr or Mrs Martin for his or her benefit, whether in relation to management fees hitherto paid or otherwise. I said that it was plain on the face of the interlocutory application that the payment of fees to both Mr Martin and Mrs Martin was the subject matter of the application and that it raised a serious issue. 25 I rejected a submission advanced by Mr Martin to the effect that he had been disadvantaged by the deferral of the hearing of Mr Hillier's application for the relief sought in [5] to [7] of the interlocutory application. It is unnecessary to set out those claims for relief here. I was satisfied that Mr Martin had been well aware that the application for orders in terms of [2] to [4] had been set down to be heard, and he had been aware of that circumstance for some time. It was not apparent to the Court how the deferral of the hearing of [5] to [7] of the interlocutory application gave rise to any prejudice that might be suffered by the respondents (or Mr Martin personally) warranting an adjournment. I emphasised that the Court was not at that time hearing any application for any person to be referred to the Registrar by reference to any alleged contempt of Court referable to a breach of the respondents' Undertaking. Whether or not the respondents had breached the Undertaking was a matter that may or may not arise sometime in the future. I observed that the question presently before the Court was whether or not the Broader Restraint (as defined in Hillier No 12) should be ordered. I observed that the Broader Restraint was a broader form of injunctive relief that went further than the Undertaking that had previously been provided by the respondents. 26 I accepted that the factual matters upon which Mr Hillier sought to rely may involve questions as to whether or not fees were being paid to Mr and Mrs Martin in circumstances that would, if determined to a criminal standard, furnish sufficient proof that they were in contempt of prior orders or the respondents' Undertaking. In that respect, I accepted that the application for the Broader Restraint was related to the relief sought in the remainder of the interlocutory application. However, I was not satisfied that that relationship, in and of itself, warranted the deferral of the hearing. As to Mr Martin's submission that the landscape had fundamentally changed, Mr Martin did not take me to the written submissions upon which Mr Hillier sought to rely to identify precisely what that change was. 27 Mr Martin raised a further complaint to the effect that prior to filing the interlocutory application and prior to the case management hearing on 30 June 2022, Mr Hillier had not put the respondents on notice about the subject matter, particularly the stated concerns about the amounts and circumstances of payments described as "management fees". Mr Martin did not take the Court to the affidavit material to make that submission good. As observed in Hillier No 12, prior to the interlocutory application being filed, Mr Hillier had requested the respondents to reduce the amount of management fees, including the fees paid to Mrs Martin and Mr Martin, but the respondents had refused. It is also plain on the face of the affidavits that transactions attributable to Mrs Martin's cashing in of significant amounts of asserted accrued annual leave entitlements included transactions in significant amounts occurring after the interlocutory application was filed. Whilst it was true that further and more detailed questions had subsequently been put by Mr Hillier, I was satisfied that the respondents had been given a fair opportunity to respond and to put on any affidavits upon which they might rely (and indeed they had done so). I observed that the respondents had provided a lengthy response to Mr Hillier's enquiries by correspondence dated 11 July 2022. I observed that affidavits had been filed on behalf of the respondents and by Mr Martin personally. 28 Mr Martin complained that Mr Hillier might seek to take advantage of a perceived gap in the affidavit evidence filed by the respondents and by him personally, in that he anticipated that Mr Hillier might submit that Mr Martin's assertion that he provided services to entities in the Nordburger Group for a fee should not be accepted by the Court in the absence of meaningful detail. I did not accept that the complaint raised by Mr Martin warranted the deferral of the proceedings. I was satisfied that Mr Martin had been on notice that Mr Hillier challenged the regularity of management fees and fees paid to Mr Martin himself. So much was apparent from the way in which [3] of the interlocutory application was drafted. It was for Mr Martin and the respondents to decide the degree of detail they should provide in answer to the application for that order. Whether or not the evidence the respondents or Mr Martin had chosen to give in relation to that topic was sufficient to address the evidence prepared by Mr Hillier was a question for submissions. 29 I explained to the parties that the Court would not read the written submissions of Mr Hillier. I explained that if, in the course of argument, it became apparent that oral submissions sought to depart in any way from the issues that a party in the respondents' position ought reasonably to have anticipated, then I would hear submissions on any resulting prejudice on a topic by topic basis. It was not immediately apparent to me that the evidentiary material filed by Mr Hillier altered the factual landscape at all to the respondents' prejudice. 30 I observed in that respect that on his affidavit evidence, Mr Hillier had not been able to access payroll records, and that he had not been willing to accept explanations given by the respondents' solicitors at face value. I concluded that that was not an unreasonable position for Mr Hillier to have adopted from the outset. I observed that the amounts attributable to management fees that were the subject of his concern were significant. I expressed the view that an assertion by the respondents' solicitors in correspondence that the transactions were attributable to employee entitlements was somewhat uninformative and it was understandable that the explanation did not assuage Mr Hillier's concerns. I considered that whether or not better notice could have been given of the interlocutory application at an earlier time might inform the question of costs, but I was not satisfied that the issue gave rise to substantive unfairness so as to warrant the grant of an adjournment.

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).

Waiver 76 As mentioned at the outset of these reasons, I permitted Mr Martin to make the disqualification application notwithstanding that it was not an application that either of the respondents had made. I considered it desirable to hear the submissions and determine the issues on their substantive merits. If I am wrong it the conclusions expressed above, I consider there to be an independent basis for dismissing the application, by reference to principles of waiver. 77 As explained by Brennan, Deane and Gaudron JJ in Vakauta v Kelly (1989) 167 CLR 568, (at 572): Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her. … 78 To similar effect, Dawson J said (at 577-579): It cannot be the position that a party can wait to see whether the outcome of a case is favourable to him before raising an objection, the availability of which he was previously aware, on the ground of bias. See R. v. Sussex Justices; Ex parte McCarthy. … In Re Alley; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation, this Court said: 'The law has, in the past, taken a strict view of the consequences of the failure of a party to object to the participation in proceedings by a member of a tribunal who is said to be biased. In some cases it has been held that a party entitled to object to the participation of an adjudicator, disqualified by interest or likelihood of bias, will be deemed to have waived that entitlement if, being fully aware of the circumstances, he fails to object as soon as is reasonably practicable. In other cases it has been held that a party failing to take objection may be refused relief if he seeks a discretionary remedy. The question whether it is possible to waive a right of this kind raises interesting questions which it is not necessary to consider here.' The guarded manner in which the Court expressed itself in that case does not, I think, throw any doubt upon the possibility of waiver of the right to object on the ground of bias in a civil trial. Cf. Reg. v. Watson; Ex parte Armstrong. In my view, where a party in civil litigation, being aware of the circumstances giving rise to a right to object, allows the case to continue for a sufficient time to show that he does not presently intend to exercise that right, he may be held to have waived it. (footnotes omitted) 79 For the most part, Mr Martin's submissions were concerned with matters arising inter partes. The asserted injustices were said to have been suffered by the respondents. It is correct that issues affecting a critical witness (as Mr Martin is anticipated to be) may assume some importance in the application of the principles concerning apprehended bias, whether or not the witness is also a party. So much was acknowledged in Hillier No 2. 80 In these proceedings, the respondents have had the benefit of legal representation from the outset, with one short period of interruption in the case of Mrs Martin and two short periods of interruption in the case of Operations. 81 Whilst I have granted Mr Martin leave to raise the issues in his capacity as a non-party, in my view it is important not to lose sight of the circumstance that the principles of apprehended bias are concerned with the appearance that the Court brings an impartial mind to bear as between the parties to the proceeding in adjudicating the controversy between them. 82 The principle underpinning the law in relation to waiver assumes some importance in the present case. They are relevant because of the circumstance that Mr Martin's multiple past grievances were directed to demonstrating an apprehension of bias in the adjudication of the controversy as between the parties, and because it may be readily be inferred that the matters about which Mr Martin complains have been known to the parties (and to him as an active participant in the litigation) from the date that each event occurred. 83 Mr Martin was previously granted an audience on a prior disqualification application made by Mrs Martin, dismissed for reasons published in Hillier No 2. 84 On 29 September 2021, Mr Martin (then the legal representative for Operations) told the Court that his failure to attend at a hearing was explained by his intention to prepare and commence proceedings in the High Court of Australia for the quashing of orders in this action on the grounds of actual or apprehended bias. The anticipated High Court proceedings were again referred to by Mr Martin in two case management hearings in October 2021. As has been mentioned, a High Court proceeding founded on apprehended bias was foreshadowed by the respondents on 29 April 2022. I consider it reasonable to infer that Mr Martin has known of many of the past events that in his submission support a disqualification order for a considerable time. 85 Mr Martin is a non-party and does not have a general right of audience. He has, however, been the sole director of Operations for some time and a co-director (together with Mrs Martin) for some time before that. As a director, he has not at any time caused Operations to bring a disqualification application before me based on the long history of events upon which he now relies. Indeed, the present application was made without notice to Counsel for Operations. Moreover, the prior disqualification application brought by Mrs Martin (on which Mr Martin was personally granted an audience) was not made on the factual bases occurring before that time and about which Mr Martin now complains, but on a different premise altogether. 86 In considering Mr Martin's submission as to the principles of apprehended bias are to apply, the Court proceeds from the footing that the principles of waiver operates so as to preclude the respondents from now raising the complaints upon which Mr Martin relies in his personal capacity. I consider that circumstance to be relevant in determining whether and how the principles of apprehended bias should apply. The result is that the Court has before it a non-party agitating issues concerning the rights and interests of the respondents in circumstances where the respondents themselves would be precluded from raising the issue in accordance with the various statements in Vakauta v Kelly. In my view, principles of waiver operate to prevent Mr Martin from complaining that the prior judgments of the Court affecting rights as between the parties are affected by bias. 87 More directly, I consider the principles of waiver to apply to a non-party just as they do to a party. In my view, there is no reason why they should not apply to a self-represented non-party in Mr Martin's in circumstances where the non-party is an admitted legal practitioner, whether or not he holds a current practising certificate. 88 To the extent that Mr Martin's personal interests are said by him to have been affected by earlier orders of the Court (including the orders dismissing his suppression order application, the orders of 29 March 2022, the orders 6 April 2022, and the respondents' Undertaking), it was at all times available to him to make an application for an order that he be granted an audience and, in that instance, he might also seek to make submissions concerning apprehended bias, as he did at the hearing on 25 July 2022. To the extent that Mr Martin complains that his personal interests have been affected by earlier orders of the Court referred to in his submissions, I consider that the principles of waiver preclude him from now complaining that those orders were affected by apprehended bias by reference to facts and circumstances known to him at the time that the orders were made but not sought to be agitated at the time. I would arrive at that conclusion irrespective of whether the phrase "shortly after they were commenced" discloses an error. I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth.