McCardle v Johnson

DOWNES J: 1 This matter was commenced by the applicant on 1 April 2021 in the Federal Court. 2 On 19 July 2021, the applicant filed her first statement of claim in this proceeding. 3 In that statement of claim, the applicant pleaded that she is and was at all relevant times a lawyer since May 2006, whether or not working as a solicitor. 4 The statement of claim then made various allegations including about proceedings in other courts, and I do not intend to set them all out here, but to highlight certain allegations. 5 On page 6 of the original statement of claim, one of the facts pleaded by the applicant was that a particular magistrate was "quite hostile to the applicant" and that she was "never granted procedural fairness". 6 Another allegation pleaded in the original statement of claim (on page 7) was in these terms: It was noted by the applicant that, shortly after the decision in the Magistrates Court in South Australia, the Magistrate was appointed to the District Court, despite other magistrates being more senior and experienced with far many more years on the bench. 7 On page 11 of the statement of claim, it was pleaded that: The Inspector-General has failed in a duty of care, the trustee has failed in his fiduciary duties and duty of care, also foreseeability of harm, damage and loss to the Applicant, her super fund and estate, he even refused to approve a cost-free AFCA investigation of insurance and bank conduct regarding loans and policies, so is attempting to cover up his manipulative dealings, there is/has mean malice, abuse of power, manipulation, greed, conduct contrary to that permitted, intended and approved by Parliament in its passing of the relevant legislation, so at all times he is/has been unreasonable, vexatious and frivolous and has significantly contributed to the extreme stress and ill-health suffered by the Applicant throughout the now five and a half year (5 ½) bankruptcy period, just to date, and it is still ongoing, along with its negative impact. 8 On page 12, the statement of claim pleaded in relation to another proceeding: this matter went on appeal, was not upheld, in fact the judicial officer did not appear to have read any of the materials, was hostile to the lawyer and much later on when the Applicant sought alternative advice, this time in Victoria, she was advised to return to the magistrates court to set aside the original decision on the basis of a misleading of the court, by the senior barrister, but the magistrate refused to listen to any submissions whatsoever, so this then went on appeal again, and the appeal judge acknowledged in March 2017 that there was no likely res judicata after perusal of all transcripts in all courts but still said there was an abuse of process, so refused to overturn the original decision, which was unjust and yet another miscarriage of justice. … 9 On page 13 of the statement of claim, it is alleged that: The Applicant's former husband also had the same senior barrister misleading the family law courts from 2012 onwards, where the applicant was informed of significant non-disclosure issues by the former husband during the earlier property settlement proceedings, so enforcement proceedings were issued because he was also being obstructive to the consent orders to cause delay of transfers (with still some issues to this day), along with a section 79A application due to fraud. … 10 The statement of claim also stated at page 13 that: the federal magistrate was ignoring the Applicant's repeated requests for inspect and copy orders of the subpoena material, then issued a decision stating the Applicant had not provided sufficient evidence of a fraud by the former husband, then stated costs would be $20,000 (without viewing any costs agreement or consideration of the scale of the costs in 2012), so that went on appeal for procedural unfairness (and later it was discovered the non-disclosures were significantly more than expected). 11 It was also pleaded that on page 13 of the statement of claim that the applicant had lodged complaints against the federal magistrate and appeal judge for incompetence and/or misbehaviour with the Attorney-General. 12 On page 14 of the statement of claim, it was pleaded that Two requests by the Applicant to have the federal police investigate this perverting of the administration of justice has been unsuccessful… 13 It was pleaded on page 14 of the statement of claim that: The family law matters have been procedurally unfair since 2012, perhaps even earlier, but especially since 2012… 14 One aspect which was identified in the pleading as being unfair was the refusal of an adjournment in around 2015 due to illness and a medical certificate being provided. 15 Another occasion of unfairness is identified in these terms: where in raising the legitimacy of the appeal judge's cost orders (at every opportunity throughout the reinstatement for years without actually reinstating the appeal) [the judge] yet again refused to recuse himself to hear the appeal on the legitimacy of his costs orders in these circumstances… 16 On 12 August 2021, Markovic J gave leave to the first respondent to file any application seeking orders striking out the statement of claim filed on 22 July 2021, (excerpts of which are set out above) and/or for summary judgment, together with any affidavits in support, on or before 26 August 2021. 17 The first respondent's interlocutory application and supporting affidavit material were filed on 26 August 2021 and the applicant filed submissions on 7 September 2021 in response to that application. 18 The application first came on for hearing before me on 8 September 2021. 19 At that hearing, the parties appeared by Microsoft Teams or, in the case of the applicant, by telephone. The applicant did not seek an adjournment of the hearing or require that she appear in person at the hearing or require that any documents be either exchanged or tendered to the Court. Rather, the applicant was content to proceed with the interlocutory application on that day. 20 However, due to a miscommunication by the Brisbane registry of the Court to the first respondent, the first respondent understood that the hearing on 8 September 2021 was only a case management hearing and not the hearing of his application. 21 On 8 September 2021, it was ordered that, amongst other things, Ms McCardle, the applicant in the proceeding, have leave to amend the originating application (which had commenced the proceeding) as well as her statement of claim which had been filed on 22 July 2021. The applicant was required to file and serve these amended documents by 22 September 2021. 22 The Order of 8 September 2021 also gave the applicant an opportunity to file and serve any affidavits and any supplementary outline of submissions in connection with the interlocutory application by 22 September 2021. 23 By that Order, the respondents were required to file any submissions and any further affidavits by 6 October 2021 and the applicant, Ms McCardle, was given the opportunity to reply to those submissions and affidavits by 15 October 2021. 24 By that Order, the interlocutory application was listed for hearing on 25 October 2021 (although this date was later changed). 25 I note that by this stage, that is 8 September 2021, the applicant (Ms McCardle) had already filed written submissions opposing the orders sought in the interlocutory application. These submissions were filed on 7 September 2021. 26 Pursuant to the grant of leave, the applicant filed an amended originating application and an amended statement of claim on 22 September 2021. The applicant also filed further submissions on 22 September 2021, an affidavit on 20 October 2021, a further set of submissions on 20 October 2021 and a further affidavit on 27 October 2021. 27 At the hearing on 28 October 2021, Ms McCardle applied for an adjournment of that hearing on the basis of ill-health. It is that hearing which is the subject of the application by the applicant for a recusal today. That hearing was conducted by Microsoft Teams or by telephone (in the case of the applicant). 28 At that hearing, the applicant submitted to the effect that she wished to appear in person at the hearing and tender documents, and it appeared that she wished to do so in order to prove the case pleaded in her statement of claim. 29 In an attempt to assist the applicant in preparing to meet what is a summary judgment / strikeout / security for costs application, I indicated to her, in order to assist her, that I would not be determining the substantive merits of her claims in the proceeding. I will return to this issue shortly. 30 The interlocutory application was (ultimately) set down for hearing on 29 November 2021. That is, it came on for hearing again more than a month after the second attempted hearing of the application of the interlocutory application on 28 October 2021. 31 In the Order dated 28 October 2021, the applicant was given a further opportunity to file and serve any further affidavit material, which needed to be done by 26 November 2021. No further affidavit material was filed and served by her in connection with the orders sought by the first respondent in his interlocutory application. However, what the applicant did do was serve upon each of the respondents a lengthy notice to admit, and those notices to admit are found in annexure "RM2" to the affidavit of Ms McCardle affirmed on 24 November 2021. 32 It is noteworthy that the applicant's position is that she is too unwell to be able to represent herself at the hearing of the interlocutory application, and that she requires an adjournment, but she took the opportunity after the adjournment of the last hearing date to serve upon the first respondent a detailed 10-page notice to admit and upon the second respondent a detailed four-and-a-half-page notice to admit. 33 Ms McCardle was also able to prepare an interim application and an affidavit in support of her application for the adjournment and the recusal. 34 Further, the applicant was able to prepare a four-page email and send that through at approximately 1.30 am on 29 November, which sets out her submissions in relation to her interim application and other matters as set out in that email. 35 When one has regard to the affidavit of the applicant about why the adjournment is required, it can be seen that there is, in fact, no independent medical evidence which indicates that she was unable to provide further written submissions in response to the interlocutory application (if necessary) or otherwise represent herself at the hearing of the interlocutory application. 36 Further, it is relevant to the decision as to whether an adjournment should be granted that the applicant has already filed multiple sets of written submissions and affidavits in relation to the interlocutory application which is before the Court. For that reason, I am satisfied that the applicant has had ample opportunity to be heard on the first respondent's application. 37 The proposition that the applicant needs to be in court in person to make her submissions orally is not, in my view, necessary. Having regard to the last hearing where the applicant made a lengthy oral speech about the version of events as contained in her pleaded case, it is likely that a similar recitation of the facts contained in and the events sitting behind her pleading would be made, should she attend court in person. 38 In addition, attending court in person in order to tender documents from the bar table in order to show that there is evidence to establish her pleaded facts will not assist the applicant in demonstrating that, for example, this Court has jurisdiction to hear her pleaded case or that, for example, the statement of claim ought not be struck out. 39 It is also relevant that the applicant was prepared to proceed remotely and without tendering documents on the first occasion that the interlocutory application came before the Court. 40 To support the adjournment application, the applicant proffers a certificate from the "Branyan Clinic", which looks like a document issued by a general practitioner, although that is not certain. The document is dated 17 November 2021, and it states that: This is to certify that the above patient had Moderna COVID vaccine 6 weeks ago at Blooms Pharmacy. She had an adverse reaction to it and is still currently symptomatic. I therefore recommend her to wait until the symptoms completely resolve before having Pfizer vaccine. 41 As observed earlier, that evidence does not indicate that the applicant is unable to attend court, let alone represent herself on these applications by telephone. It only indicates that the applicant should wait before she gets a second vaccination. 42 In any case, it is necessary for the Court to take into account not just the interests of the applicant, but also the interests of the respondents. 43 The first respondent's interlocutory application was filed in August 2021. The first respondent is funding his own defence of this case. I have extracted parts of the original statement of claim above. It appears that many aspects of the claims made in the statement of claim, many of which are in similar terms in the current statement of claim, are misconceived. 44 For example, it appears that the applicant wishes me to investigate and decide upon facts such as whether senior barristers made misleading submissions to other courts in other states, whether other judges ought to have recused themselves, whether particular orders ought to have been made because of these things and whether there was fraud by the applicant's ex-husband. 45 Looking at the applicant's most recent submissions sent through at approximately 1.30 am, she states that she is seeking, due to illness, additional time to file and serve her affidavit of evidence of misconduct and frauds evidencing that the debts attributed to her and causing a bankruptcy: …due to the bullying actions of the Sheriff's Office in SA (this year found to be endemic in that office by the SA Equal Opportunity Commission's report requested by the Attorney-General, and equally revealing is the extent of misconduct by the legal profession including its hierarchy in that State) are debts that are actually false and without any integrity basis. 46 As I have indicated to the applicant previously, I will not be having a trial of whether or not the facts pleaded in the statement of claim are true. 47 For the following reasons, the adjournment application should be refused. 48 First, while the applicant deposes to experiencing certain symptoms: (1) The applicant's affidavit and the material relied upon by her does not explain whether and why any medical condition she says she is suffering prevents her from effectively participating at any hearing (for example, by way of telephone or video link); (2) The applicant's affidavit and material relied on by her does not explain what (if anything) the applicant has been prevented from doing in relation to the application that she would otherwise have done and why she has been so prevented; (3) The applicant's affidavit is to the effect that she has been unable to move this matter forward, but there is nothing for the applicant to move forward. She has been ready to proceed for some time; and (4) There is no material before the Court that positively establishes that the applicant could not attend a hearing by technological means or that she has been denied a proper opportunity to respond to the first respondent's application. 49 The second reason for refusing the adjournment is that, notwithstanding the applicant contends she has been debilitated for the preceding few weeks: (1) Ms McCardle was quite capable of preparing two notices to admit facts, one of which was particularly lengthy, each of which is detailed, thorough and replete with submissions and commentary; (2) the applicant was able to prepare the interlocutory application for the adjournment and recusal and supporting affidavit, and (3) the applicant was able to provide submissions overnight. 50 The third reason for refusing the application, as I have already indicated, is that Ms McCardle has, in response to the application, filed written submissions and affidavit material. In other words, she has responded to the application and been given ample opportunity to make submissions to deal with it. 51 A fourth reason is that the application can be determined on the papers without any oral hearing. That is especially in this case where I do not regard it as necessary to have any party appear in person or tender documents from the bar table. Each of the parties to this application have filed comprehensive written submissions and affidavit material. 52 A fifth reason is that it is not in the interests of justice that the matter be further delayed for an indefinite period to enable oral submissions to be made. And it cannot be said that a refusal to adjourn the first respondent's application would seriously prejudice the applicant or that there has been any denial of procedural fairness. 53 A sixth reason for refusing the adjournment is that the proceedings were instituted on 1 April 2021. Because of the alleged deficiencies in the statement of claim, this matter has not proceeded. No defences have been filed and it is now nearly the end of November 2021. The applicant who brings the proceeding seeks an adjournment of the interlocutory application to a date not before February 2022, but the real likelihood is that, at another hearing in February 2022, she would seek a further adjournment of the application. As the application is able to be heard on the papers, there is no need for an oral hearing and it can therefore be determined prior to February 2022. 54 A seventh reason for refusing the adjournment is there are no funds in the applicant's bankrupt estate. Ms McCardle herself is an undischarged bankrupt. The first respondent is self-funding his defence. He is out of pocket to the tune of $100,000. Any further delay unnecessarily increases his costs, which are likely irrecoverable. That is a substantial prejudice; so too is the strain of litigation and inconvenience. 55 For these reasons, I refuse paragraph 1 of the interim application, which is to adjourn the first respondent's application to a date not before February 2022. 56 The second part of Ms McCardle's application is that I should recuse myself, because of one statement made by me at the previous hearing and one statement which I did not make but which Ms McCardle thought I was going to make. 57 The first basis for the recusal application is that I allegedly said words to the effect, "Well, you should not have," and then stopped speaking. 58 Ms McCardle deposes that she believes that I was going to say that she should not have had the COVID-19 vaccination. 59 The second thing that I allegedly said at the hearing was that I would not be hearing or deciding any questions of fraud in relation to the issues on the applicant's bankrupt estate. 60 The principles governing apprehended bias are well established. The relevant test is whether a fair-minded lay observer might reasonably apprehend that a judge might not bring an impartial mind to the resolution of a question or questions that he or she is required to decide. 61 It is a two-stage process and the applicant must positively identify both: (1) the cause of an appearance of bias - that is, what might lead me to consider the application other than in accordance with law; and (2) the logical connection between that cause and the appearance of partiality. 62 In assessing whether there is any logical connection, it is important to bear in mind the characteristics of modern litigation, including the need for more active case management and judicial intervention. 63 The subjective views of Ms McCardle are not relevant. Equally, it is not sufficient that there is a reasonable apprehension that I will decide the matter or issues in the case adversely to Ms McCardle. 64 What is required for justice to be seen to be done is that, to the fair-minded lay observer, I will bring to the resolution of the issues an impartial and unprejudiced mind and will decide the issues according to their factual and legal merits. 65 The hypothetical fair-minded lay observer: (1) has attributed to him or her awareness of and a fair understanding of the nature of the decision or decisions, their context and the circumstances leading up to them; (2) has attributed to him or her knowledge that I am a professional lawyer whose training, tradition and oath require me to discard the irrelevant, immaterial and prejudicial; and (3) while not having a detailed knowledge of the law, understands the judicial process and issues to be determined and that judges are under strong professional pressures to act with integrity and impartiality. 66 A proposition of apprehended bias must be firmly established. A judge should only disqualify himself or herself with good cause. The corollary of the obligation of a judge to disqualify himself or herself for apprehended bias is the judge's obligation to hear all cases in which he or she is not disqualified. A judge must not disqualify himself or herself too readily or allow a party to dictate whether the judge may hear a case. In this regard, I note that this is not the first occasion on which Ms McCardle has asked a judge to recuse themselves. 67 Against those principles, the applicant's contentions do not meet the requisite standard. The veracity of each of the applicant's complaints can be verified by reference to the relevant transcript, but the applicant has not put that into evidence. It is certainly my recollection and that of the first respondent - and I do not understand Ms Curnow to be saying otherwise - that during the directions hearing on 28 October 2021, I made no suggestion, whether express or implied, that the applicant should not have had a COVID-19 vaccination and I said words to the effect that, at the hearing of the first respondent's application, being one of summary dismissal or strikeout and security for costs, I would not be deciding whether the alleged facts pleaded by the applicant were true or not. And, as I have noted, one of the allegations made in the proceedings by the applicant relates to fraud. 68 Thus with respect to the applicant's first contention, any complaint of apprehended bias has not been substantiated. 69 The applicant's own subjective belief is not relevant, but, in any event, there is no logical connection advanced by the applicant between the statement or the statements that I am alleged to have made and an appearance of partiality with respect to the resolution of the first respondent's interlocutory application other than in accordance with law. 70 As I have noted earlier, I am conscious that Ms McCardle is self-represented and I indicated to her that I would not be deciding the factual issues that she had pleaded in her statement of claim. That I would not be deciding whether the alleged facts pleaded by the applicant were true or not is a correct statement of law according to the submission of the first respondent. I agree. 71 The relevant, fair-minded observer would be aware of that and would not reasonably apprehend bias because of any statement to that effect. 72 Moreover, I did not express any clear view as to any question of fact in the case, including those alleged by Ms McCardle. There is no logical connection between any statement and the appearance of any prejudgment. 73 For those reasons, the application by Ms McCardle that I recuse myself from hearing the first respondent's application or from hearing any further part of this proceeding is dismissed. 74 Further, the applicant, Ms McCardle, will be ordered to pay the first respondent's costs of and incidental to the interim application dated 24 November 2021. 75 I will also make an order in accordance with paragraph 27.1 of the second respondent's submissions and I will make an order in terms of paragraph 27.2, changed so that it refers to the requirement on the first respondent and second respondent, and I will also identify that the notices to admit are annexure "RM2" to the affidavit of Roxanne Marie McCardle affirmed on 24 November 2021. 76 Otherwise I will reserve the costs, being costs other than in relation to the interim application. I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Downes.