Kirkham v Monash University

ANN NICHOLSON (and others named in the Schedule)

1. Judgment be reserved.
2. The matter be adjourned to a date to be fixed for delivery of Judgment.

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. Yesterday, I embarked upon the hearing of an application in a proceeding brought by the respondents, wherein they asked, inter alia, for the Court to make a ruling upon the question of whether the amended statement of claim that was filed on 14 February 2025 should be struck out in its entirety, or alternatively, in other various aspects of it.
2. The question, then, for the Court was a very narrow question; that is, whether the 173-page document was a document that was made according to the Rules and, secondly, whether the document did, in fact, disclose an identifiable cause of action. The submissions made by the respondents were that such document did not comply with the Rules in the way it was set out, but even more importantly, that there was no identifiable cause of action, which meant that there was no ability for them to successfully be able to even compose a defence to the statement of claim.
3. Those submissions having been made, it was then the turn of Dr Kirkham to respond. The submissions needed to be focused upon those areas as to whether the document, as it stands, should remain, and any submissions to show that there was an identifiable cause of action on the face of the document. During the course of submissions yesterday, there were many times where it was that Dr Kirkham strayed from that task. I had warned him before the proceedings that he needed to stick to the issues and not go off on tangents.
4. On quite a number of occasions, he went off on tangents and I admonished him.
5. At one point yesterday, he made remarks of the following nature: that "it's obvious that you don't like the way in which I am doing things. It may be best that we get someone else to do it and start again," to which I responded to him, "Your outline of submissions is critical of the respondents for Judge-shopping, and here you are now wanting someone else to deal with it when it is that you perceive that there are criticisms of your approach in the statement of claim."
6. Nevertheless, the matter proceeded but did not quite conclude. We adjourned overnight.
7. This morning, when I came into Court, the first thing that Dr Kirkham said that he had been thinking overnight that it was something that he did not want to do but he felt compelled to ask this Court to stop hearing the matter and just quietly transfer the hearing of this application to another Judge.
8. Dr Kirkham, the applicant, said to me words to the effect that if this was a matter that he took on appeal, it was obvious to him that he would show the transcript to the Appeal Court, and they would be very critical of the things that I said to him, and that it would be very embarrassing to me on a personal nature, so why don't we skip that process and just simply adjourn the matter to another Judge and nothing more needed to be said.
9. I rejected that suggestion, and that is because the applicant is well and truly saying to this Court now, that he is, at the very least, apprehensive that the Court is no longer looking at the merits of his arguments to say that the statement of claim should not be struck out but has already made up its mind as to what should happen, and it does not matter what arguments or other material could be put before the Court; its mind was already made up.
10. The legal test for bias and apprehended bias is that which was set out in Ebner v the Official Trustee in Bankruptcy [2000] HCA 63; [2000] 205 CLR 337. The High Court said there:

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.

1. It has been said that this test has a high threshold, and that substantial grounds must exist before a Court would find any form of bias. The role of the fair-minded lay observer is pivotal. The fair-minded lay observer does not make snap judgments. He or she is taken to be reasonable, and he or she knows commonplace things and is neither complacent nor unduly sensitive or suspicious.
2. Knowledge of all the circumstances of the case must be attributed to the fair-minded observer, and the fair-minded observer is an informed observer. A fair-minded observer will have regard to the fact that a judicial officer's training, tradition and both have equipped that officer with the ability to discard the irrelevant, the immaterial and the prejudicial.
3. In Helow v the Home Secretary [2008] UKHL 62; [2008] 1 WLR 2416, Lord Hope of Craighead said:

The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious. Her approach must not be confused with that of the person who has brought the complaint. The "real possibility" test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses.

Then there is the attribute that the observer is "informed". It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.

1. The rule against bias, either actual or apprehended, is directed to pre-judgment, incapable of being altered by evidence or argument. It is not directed to predisposition capable of being swayed by evidence or argument. In the Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] 205 CLR 507, the Court said:

Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion.

Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.

1. In a Canadian case, R. v. S. (R.D.) at 3 SCR 484, the Court said:

It has been observed that the duty to be impartial does not mean that a judge does not, or cannot bring to the bench many existing sympathies, antipathies or attitudes. There is no human being who is not the product of every social experience, every process of education, and every human contact with those with whom we share the planet. Indeed, even if it were possible, a judge free of this heritage of past experience would probably lack the very qualities of humanity required of a judge.

True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind.

1. In Isbester v Knox City Council [2015] HCA 20, Gageler J, as he then was, seemed to formulate a three-step process for bias. That is, the first step is to identify the factor which is said might cause a question to be resolved otherwise than as a result of neutral evaluation of the merits. The second step is to articulate how that identified factor might cause that deviation from a neutral evaluation of the merits, and the third step is to consider the reasonableness of the apprehension of that deviation being caused by that factor in that way.
2. In undertaking this task, the first step is to identify a factor which might cause the question to be resolved otherwise than as a result of a neutral evaluation of the merits. The evaluation that I have to undertake is whether the statement of claim should be struck out or not.
3. The factor that is said by Dr Kirkham to be a factor which might cause the question to be resolved otherwise than that is that somehow, because he, Dr Kirkham, has ignored what it is that I have asked him to do, and that is to stick to the point and to stay relevant, that I may have used that to override the legal and factual merits of his submissions that this statement of claim should not be struck out.
4. Alternatively, he argues, that because of an inference that has been made by statements from Dr Kirkham, the applicant, that the requirements of the Court are requirements that just do not work for self-represented litigants, and that, as he said yesterday:

I am not doing things the way that you guys think that things should be done.

1. That these sentiments are easily ones that lead to an inference that Dr Kirkham is of the view that the lawyers have a very cosy arrangement; that by putting in steps and procedures that he feels are impossible for self-represented litigants to navigate, that they are, in effect, shutting self-represented litigants out of the courts and keeping these matters, as it were, in house between lawyers, so that it can be that rulings are made and decisions are discussed by only a very select few in society, and that the normal everyday person is shut out of it.
2. I have told Dr Kirkham that if that is his attitude, it is a wrong attitude, and the criticisms he makes in so many instances seem to stem from that attitude which I have told him is not correct and that matters are decided on the merits. As I said to him, having had hundreds, if not thousands of self-represented litigants appear before me in the last 10 years in this jurisdiction, in the migration jurisdiction and in the family law jurisdiction, there has never been criticisms of that nature before.
3. So that while these procedures may be difficult for Dr Kirkham to navigate personally, he has elevated that difficulty to that of every self-represented litigant, as if his troubles must, therefore, be the troubles that every self-represented litigant has experienced.
4. The inference then is that Dr Kirkham is saying that my attitude (that such an inference that the court has inferred is held by Dr Kirkham) is, therefore, a factor that might cause a question of whether this factor has been taken into account in deciding whether the application to strike out be granted or not, is such that it overrides the merits of the actual submissions of Dr Kirkham.
5. This is the second step, in that those matters that have been identified are said that they were such that a deviation from the neutral evaluation of the merits may arise.
6. The third step is to consider the reasonableness of that apprehension from the point of view of the fair-minded lay observer.
7. In my view, the fair-minded lay observer would have realised that any interjections by the Court were, firstly, to dispel the correctness of any belief or inference that Dr Kirkham has as to the way in which the rules were meant to be applied; and, secondly, to dispel any thoughts that they were far too difficult for any self-represented litigant to ever successfully navigate.
8. The fair-minded lay observer would appreciate that the interjections were meant to have Dr Kirkham focus on what was relevant for this particular application's merits to be questioned and for the Court to make a decision.
9. Having decided that the fair-minded lay observer see those things in their proper context, then the fair-minded lay observer would not have any apprehension that the Court's mind was made up as to whether this statement of claim ought be struck out.
10. Therefore, the application for recusal on the grounds of apprehended bias is rejected and dismissed, and the proceeding will continue.

I certify that the preceding twenty‑nine (29) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Vasta.