Martin v Hillier

1. The application for leave to appeal be allocated to another judge of the Court. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BESANKO J: 1 The principles governing disqualification for apparent bias are set out in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner). Gleeson CJ, McHugh, Gummow and Hayne JJ identified the governing principle as follows (at 344): …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. Their Honours identified the two steps in the application of the principle as first, the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits, and secondly, an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits (at 345). 2 An application for leave to appeal by Victoria Martin in SAD 137 of 2021 (Victoria Martin v James Hillier) was allocated to me in the normal course. The application was for leave to appeal from orders made in a proceeding by another judge of this Court in relation to discovery and production of documents. Those orders were made on 25 June 2021 and are supported by reasons (Hillier v Martin (No 4) [2021] FCA 710). The orders with respect to which leave to appeal is sought relate to the scope of discovery and then production required of a party in a proceeding. The applicant for leave contends that there are issues in her proposed appeal as to whether "an entire data base" constitutes a single document and whether an order for production should be made in circumstances in which, as I understand it, part of the information which is the subject of the order is not directly relevant or would otherwise be considered to be commercial-in-confidence information. The applicant for leave also contends that a material consideration in whether an order for discovery and production should have been made is that the beneficiary of the order "has previously been a competitor of the applicant and has shown a willingness to compete with the applicant with full and complete access to all of the financial records of the business of which the applicant is the general manager". 3 It may be observed that the Draft Notice of appeal annexed to the solicitor's affidavit in support of the application for leave to appeal appears to raise matters which are not raised in the application for leave to appeal. That is a matter that the respondent to the application has already mentioned. 4 The application for leave to appeal was listed for mention or hearing on Monday, 12 July 2021. Shortly prior to the hearing, my associate wrote to the parties pointing out that I had been a member of the Full Court in Martin v Norton Rose Fulbright Australia [2019] FCAFC 234 (Martin v Norton Rose). Also, shortly prior to the hearing the respondent provided written submissions to the Court and referred to an affidavit of Mr Thomas Patrick Martin dated 25 June 2021. The respondent's written submissions refer to Mr Martin's affidavit as follows: 29. The assertion of confidentiality came in a belated and argumentative affidavit of Martin's husband 25 June 2021 and served at the hearing [referring to the hearing before the primary judge] (copy attached for convenience). That affidavit served as the basis for submissions in opposition to production. It provided no tenable basis at all and accordingly her Honour ordered production (which apparently is the basis of ground 3 of the application). 5 At the hearing, counsel for Victoria Martin said that at that stage he did not expect there to be any application as a result of my participation in the Full Court decision, but he went on to say that he had not had an opportunity "to fully take instructions from my client in relation to the matter". 6 At the hearing, I made the following orders, relevantly: 4. The applicant indicate by letter to chambers whether or not there will be any application for Besanko J to disqualify himself from hearing the applicant's Application for leave to appeal filed on 9 July 2021 (the Application) by 10:00 am (ACST) on Tuesday, 13 July 2021. 5. The applicant file and serve written submissions and any application book by 5:00 pm (ACST) on Wednesday, 14 July 2021. 6. The Application be listed for hearing at 9:00 am (ACST) on Friday, 16 July 2021. 7. The operation of order 5 of the orders made on 25 June 2021 be stayed until 5:00 pm on Friday, 16 July 2021. 7 In accordance with the order set out in paragraph 4, the applicant's solicitors wrote to my chambers on 13 July 2021. They indicated that they were instructed to request that the matter be reallocated to another judge and they pointed to the fact that the reasons of the Full Court contain "strong findings relating to Mr Thomas Martin, who is directly involved in various matters relating to the discovery application and the findings of Justice Charlesworth". 8 I reviewed the reasons for judgment of the Full Court in Martin v Norton Rose. Ordinarily, a Full Court would not be making findings based on assessments of credibility or reliability. Those are matters for the trial court in the usual course. However, the issues before the Full Court in Martin v Norton Rose included an application for an extension of time within which to file a Notice of appeal, an application to adduce further evidence on the appeal and an application to file an amended application. The Court made various observations about how Mr Martin had conducted the proceedings. In paragraph 10 of the Court's reasons, the Court observed that the explanation provided by Mr Martin for the delay in raising the issue did not satisfactorily address the facts that were plainly known to Mr Martin for some time. In paragraph 18 of the Court's reasons, the Court referred to the unfounded and misconceived assertions being advanced by Mr Martin as to serious misconduct on the part of the respondent's legal representatives. In paragraph 21 of the Court's reasons, the Court said that of relevance to the exercise of the discretion to extend time in the present proceeding was the clear failure on the part of Mr Martin to progress his claims with any degree of diligence and his failure to comply with orders or directions to ready his case for hearing. In paragraph 23 of the Court's reasons, the Court referred to the failure on the part of Mr Martin to progress his appeal in any diligent and timely manner (see also paragraph 25). In paragraph 45 of the Court's reasons, the Court referred to Mr Martin's inability to provide a convincing explanation as to how it was that the documents referred to in that paragraph were in some way relevant to the issue of "independence". Notably, in paragraph 48 of the Court's reasons, the Court said the following: Mr Martin has done little to either have his Application for leave to appeal or his Application for an extension of time in which to file a Notice of Appeal resolved quickly and expeditiously. Indeed his conduct is such as to be properly characterised as conduct more directed to delaying the resolution of interlocutory disputes and conduct directed to ensuring that the proposed final hearing in about March 2020 is delayed. 9 I have already set out paragraph 29 of the respondent's submissions on the application for leave to appeal (at [4]). 10 It seems to me that Mr Martin's conduct will or, at least, may be, an issue on the application for leave to appeal. I was a member of a Full Court which was critical of Mr Martin's conduct in that proceeding, including conduct on his part which involved delay. The respondent in this case characterises Mr Martin's assertion of confidentiality as coming forward in a "belated and argumentative" affidavit. 11 To my mind, the circumstances of this case are somewhat unusual. Ordinarily, and speaking at a very general level, participation in a Full Court hearing involving the spouse of a litigant would not be suggestive of a reasonable apprehension of bias in relation to subsequent litigation by that litigant; a fortiori in circumstances where that subsequent litigation is, as far as the judge is concerned, an application for leave to appeal. However, the circumstance that the Full Court was strongly critical of the spouse's conduct in the proceedings, the spouse has played a part in the existing litigation and that part appears to be, again, the subject of criticism, is sufficient for me to conclude that within the principles laid down in Ebner I should disqualify myself. 12 I will make an order that the application for leave to appeal be allocated to another judge of the Court. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko.