Picos v Council of the Law Society of New South Wales

1. The appellant's application for recusal is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RANGIAH J: 1 The appellant has applied for my recusal on the basis of apprehended bias. The application was made in the context of my case management of appellate proceedings brought by the appellant. 2 The appellant asserts: Essentially, with respect, the Applicant says that Justice Rangiah appears to favour the Respondents because: a. the Respondents, being The Law Society of NSW and its Council, were permitted to make an application to object to the competency of the appeal out of time via email in the first instance (the "Respondents' application to object out of time"); b. the unacceptable reason given by the Respondents for their delay is "an oversight on the part of" Minter Ellison lawyers (see paragraph [10] of Affidavit of Sarah Krust dated 3 August 2022); c. on 23 August 2022, at the first case management hearing, His Honour of his own motion, seemingly in good faith but incorrectly, indicated that the first issue is whether leave to appeal is required (against the Applicant); and d. his Honour's Orders of 23 August 2022 assume and provide for the success of the Respondents' application to object out of time, which means that the Appeal, which is of great importance, has not been listed for final hearing in the ordinary course to the great prejudice of the Applicant. 3 In oral submissions, the appellant submitted that apprehended bias is also demonstrated by the fact that an affidavit of Ms Krust, a solicitor acting for the respondents, was accepted for filing in circumstances where r 36.57 of the Federal Court Rules 2011 (Cth) required her to seek leave to rely upon that affidavit. The appellant also submitted that her application for leave to appeal is unable to be determined because the Appeal Books have not been finalised, and that to proceed with the hearing of that application would demonstrate apprehended bias. 4 The principles concerning disqualification for apprehended bias are well-known. In Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337, the High Court held at [6] that apprehended bias is established: … 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. (See also Charisteas v Charisteas [2021] HCA 29; (2021) 95 ALJR 824 at [11]). 5 On 12 July 2022, the appellant filed a Notice of Appeal purporting to appeal from the judgment of Thomas J in Picos v Council of the Law Society of New South Wales [2022] FCA 755. His Honour dismissed an application seeking, relevantly, the following relief: Until one of the events specified in ss 46PG or 46PF(1)(b) or 46PH of the Australian Human Rights Commission Act 1986 (Cth) occurs, or until earlier order of the Court, the respondents and each of them will not, whether by themselves, their employees, agents or otherwise, terminate the licence to practice law held by the Applicant, including but not limited to by refusing to renew it beyond 30 June 2022. 6 On 3 August 2022, the respondents filed the affidavit of Ms Krust, which annexed a draft Notice of Objection to Competency, and stated that the affidavit was filed in support of an application to file that Notice out of time. The draft Notice asserted that the judgment of Thomas J was interlocutory and that leave to appeal was required, but had not been sought. No application for leave to file the Notice out of time had in fact been filed at that stage. 7 On 8 August 2022, Ms Krust wrote to my Associate asking for a return date for the application to file the Notice of Objection to Competency out of time. The application had still not been filed by that time. On the same date, the appellant wrote to the Registry objecting to Ms Krust's communication with the Court without the appellant's consent. 8 On 11 August 2022, the Registry, at my direction, notified the parties that the respondents' application for leave to file the Notice of Objection to Competency out of time would be listed for mention at the first case management hearing of the appeal. That email was sent on the basis that it seemed apparent that the respondents intended to file such an application or to make an oral application. 9 At the case management hearing on 23 August 2022, I indicated my preliminary view that the respondents' contention that leave to appeal was required may have merit. I encouraged the appellant to consider whether she should seek leave to appeal. That encouragement was given for the appellant's benefit, as she otherwise risked having her Notice of Appeal dismissed without having in place the alternative of an application for an extension of time to seek leave to appeal. 10 In order to facilitate a hearing of all potential issues, I made orders at the case management hearing which included the following: 1. The appellant have leave to file and serve an application for an extension of time to seek leave to appeal pursuant to r 35.14 of the Federal Court Rules 2011 (Cth) by 4.30 pm on 6 September 2022. 2. The following applications be listed for hearing on a date to be fixed: (a) the first and second respondents' interlocutory application filed on 16 August 2022 for leave to file a notice of objection to competency out of time; (b) in the event leave to file a notice of objection to competency out of time is granted, the question of competency of the appeal; (c) any application for an extension of time to seek leave to appeal; and (d) any application for leave to appeal. 3. The appellant file and serve any affidavits upon which she intends to rely by 4.30 pm on 6 September 2022. 4. The first and second respondents file and serve any affidavits upon which they intend to rely by 4.30 pm on 20 September 2022. 5. The appellant file and serve any affidavits in reply by 4.30 pm on 27 September 2022. … 11 On 24 August 2022, the appellant filed her interlocutory application seeking that I recuse myself. 12 On 6 September 2022, the appellant filed an affidavit annexing a proposed Application for an Extension of Time to Seek Leave to Appeal. 13 I will consider each of the appellant's contentions as to why I have exhibited apprehended bias in turn. 14 The appellant contends that I allowed the respondents to make an application for an extension of time to file the Notice of Objection to Competency out of time by email, and that this may indicate that I favour the respondents. I did not allow the respondents to make any such application. They were entitled to make such an application as of right. I merely anticipated, based on Ms Krust's affidavit and correspondence, that an application would be made, and indicated that the application would be mentioned at the case management hearing. 15 The appellant complains of an unacceptable reason given by the respondents for failing to file a Notice of Objection to Competency within time. This does not raise any allegation relevant to apprehended bias. 16 The appellant complains that, at the first case management hearing, I indicated that the first issue was whether leave to appeal was required. It was an important issue, and it was necessary for me to raise it at an early stage. It was raised, as I have said, for the benefit of the appellant. She, in fact, eventually considered it appropriate and in her own interests to file such an application. 17 The appellant asserts that my orders of 23 August 2022 (the Orders) assume and provide for the success of the respondents' application for an extension of time to file a Notice of Objection to Competency. However, the Orders make no assumption that the respondents' application for an extension of time will succeed. 18 The appellant asserts that the affidavit of Ms Krust ought not to have been accepted for filing. I was not involved in any decision to accept that affidavit for filing, and that assertion cannot give rise to any issue of apprehended bias. 19 The appellant asserts that any application for leave to appeal cannot be properly considered because the Appeal Book is incomplete. The Orders provided for the parties to file such affidavits as they wished to rely upon. The appellant has had the opportunity to place before the Court any material which she considers would assist her case. 20 I cannot see that any of the matters raised by the appellant, whether considered individually or cumulatively, might cause a fair-minded lay observer to reasonably apprehend that I might not bring an impartial mind to the resolution of the matters I am required to decide. 21 The application for my recusal will be dismissed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.