Plaintiff v Defendant

PRACTICE AND PROCEDURE - Subpoenas for production - Procedure only available to secure production of a document 'for evidence' - Evidence not admissible on recusal application - Extensive affidavit evidence - Not demonstrated the documents sought will materially assist - Documents sought not potentially relevant - Subpoena set aside - Civil Procedure Act 2010 (Vic) ss 9, 19, 24 - Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 42A.01 - Warwryk v Mercedes-Benz Australia/Pacific Pty Ltd (subpoena ruling) [2024] VSC 120 - Volunteer Fire Brigade Victoria Inc v Country Fire Authority [2016] VSC 573 - Cargill Australia Ltd v Viterra Malt Pty Ltd (No 19) [2018] VSC 798, applied - Webb v Wheatley [2015] VSC 153, cited.

1 This dispute involves an objection by the plaintiff and the recipient to two subpoenas issued by the defendant. What is unusual is that both subpoenas have been issued by the defendant in support of its application that the judge managing the proceeding should disqualify himself for apparent bias.

2 The proceeding is a class action in which the lead plaintiff alleges that by reason of the defendant's conduct he and group members suffered loss or damage by acquiring shares in the defendant at a price higher than the shares would otherwise have traded on the market.

3 The plaintiff alleges that between 17 August 2016 and 23 October 2017 the defendant made representations about the performance and financial position of its buildings and interiors business and failed to disclose information concerning its true financial position, thereby inflating the value of its shares. It is alleged that in doing so the defendant engaged in conduct in contravention of the Corporations Act 2001 (Cth) ('Corporations Act'), Australian Securities and Investments Commission Act 2001 (Cth), the Australian Consumer Law being Schedule 2 to the Competition and Consumer Act 2010 (Cth), Financial Conduct Act 2013 (NZ) and the Fair Trading Act 1986 (NZ).

4 The proceeding was commenced on 2 September 2022 and was allocated to the Commercial Court Group Proceedings List. Until June 2024 the proceeding was case managed by Nichols J, the judge in charge of that list. On 4 June 2024 the proceeding was reallocated to Watson J, a judge with extensive experience in class action litigation. The proceeding was listed for a case management conference before his Honour on 30 October 2024.

5 Pleadings have been completed. On 5 June 2024 Orders were made by consent requiring the defendant to give discovery to be completed by 25 September 2024.

6 On 8 July 2024 the defendant filed a summons seeking security for costs. That summons was initially returnable on 30 October 2024 before Watson J.

7 The Funding Information Summary Statement explaining to group members how the proceeding is funded states that the lead plaintiff, Mr Fuller, has entered into agreements with his solicitor, Mayweathers Pty Ltd ('Mayweathers'), and a commercial litigation funder, CASL Funder Pty Ltd (ACN 645 229 643) ('Funder'). The Funder has appointed CASL Management Pty Ltd ('Manager') to assist the Funder with services in respect of the management of the litigation funding of the proceeding. Agreements between the lead plaintiff, the Funder and the Manager provide that:

(a) The Funder has agreed to fund 75% of the reasonable fees of Mayweathers in running the proceeding ('Lawyer's Funded Fees') and 100% of Mayweathers' disbursement costs ('Lawyer's Disbursements');

(b) The other or remaining 25% of lawyer's fees are conditional upon a successful outcome ('Lawyer's Remaining Fees'). If the proceeding achieves a successful outcome, Mayweathers is entitled to its Lawyer's Remaining Fees and an additional 25% of its Lawyer's Remaining Fees for the risk Mayweathers has agreed to assume in prosecuting the proceeding; and

(c) The Funder will provide any security for costs that might be ordered by the Court, and pay any costs order made against the lead plaintiff and in favour of any defendant.

8 The Funding Information Summary Statement informs group members that if the class action is successful, such that the claims covered by the class action are resolved by way of a settlement or determined by a judgment which results in compensation being payable to the plaintiffs and group members ('Claim Proceeds'):

(a) The Funder will seek approval from the Court to deduct from Claim Proceeds all fees and costs it has paid, such as the Lawyer's Funded Fees, Lawyer's Disbursements, and any adverse costs order expenses; and

(b) The Funder and Manager will each seek the Court's approval to deduct an additional fee from Claim Proceeds to remunerate them for their respective roles in the proceeding.

9 On 5 September 2024 the defendant issued a summons seeking an order that Watson J recuse himself from the case management and hearing of the proceeding on the ground of apprehended bias or alternatively, for an order in the nature of prohibition. The recusal application was originally returnable on 30 October 2024 but is now listed to be heard by Watson J on 28 January 2025.

10 In submissions filed in relation to the subpoena dispute the defendant gave notice that at the hearing of the substantive application it will submit that a reasonable apprehension of bias arises for reasons that 'include' the judge's previous professional association when a partner of Maurice Blackburn Pty Ltd with Mr John Walker and entities related to him, including the Funder (referred to in the subpoena as the 'Walker Entities').

11 Both subpoenas are directed to Maurice Blackburn. Both rely on r 42A of the Supreme Court (General Civil Procedure) Rules 2015 ('the Rules') and require the production of documents to the Prothonotary.

12 In support of the subpoenas the defendant relies on a 45 page affidavit by its solicitor, Jason Betts, dated 3 September 2024 with a single exhibit of 2204 pages ('the Betts affidavit'). The defendant also proposes to rely on the Betts affidavit in support of its substantive recusal application.

13 The Betts affidavit expressly states that no part of the defendants' application is based on any assertion of actual bias.

14 The first subpoena was issued on 5 September 2024 ('first subpoena'). It required the production of the documents specified by 13 September 2024.

15 Rules 42A.07 and 42A.08(1) of the Rules provide that an addressee or a party who has any objection to producing a document identified in the subpoena or to its being inspected shall notify the Prothonotary of that objection and state the grounds of that objection before the day specified in the subpoena.

16 Rule 42A.09(1) provides that upon receiving notice under r 42A.07 or r 42A.08, the Prothonotary shall refer the subpoena to a Judge or an Associate Judge for the hearing and determination of the objection.

17 On 12 September 2024 the plaintiff gave notice pursuant to r 42A.08(1) that it objected to the inspection of the documents to be produced in response to the first subpoena on the ground the documents are not relevant. He asserted that the subpoena lacks a legitimate forensic purpose and that the documents will not materially assist the defendant in respect of the issues arising for determination.

18 On 13 September 2024 the solicitors for Maurice Blackburn gave notice that their client objected to the production of documents in accordance with r 42A.07. The objection asserted that the first subpoena is an abuse of process and is oppressive.

19 On 30 September 2024 the defendant issued the second subpoena ('second subpoena'). Both the plaintiff and Maurice Blackburn objected to the second subpoena.

20 The objections to the first and second subpoenas were referred to me for determination as the Commercial Court Duty Judge.

21 I have determined the objections should be upheld in relation to both the first and second subpoenas. The subpoenas should be set aside. The defendant should pay the costs of the plaintiff and of Maurice Blackburn relating to the subpoenas and the dispute concerning them.

22 The parties filed evidence and submissions and tendered correspondence upon which they rely:

(a) The affidavit of Jason Betts dated 3 September 2024;

(b) The affidavits of Jonathan Milner dated 26 September 2024 ('Milner affidavit') and 1 October 2024;

(c) The affidavits of Tracy Emma Tran dated 30 September 2024 and 9 October 2024;

(d) The affidavit of Bianca Kraljevic dated 1 October 2024;

(e) The plaintiff's submissions dated 30 September 2024 and 17 October 2024;

(f) The defendant's submissions dated 30 September 2024 and 21 October 2024;

(g) Maurice Blackburn Pty Ltd's submissions dated 30 September 2024;

(h) Subpoena objection letter from Arnold Bloch Leibler dated 13 September 2024;

(i) Subpoena objection letters from Mayweathers dated 12 and 16 September 2024;

(j) Subpoena objection letter in response from Herbert Smith Freehills dated 25 September 2024;

(k) Bundle of correspondence passing between Herbert Smith Freehills and Arnold Bloch Leibler dated 4 October 2024 - 9 October 2024; and

(l) An agreed bundle of documents consisting of communications between the solicitors for the defendant and the Chambers of Watson J and the transcript of the mention before his Honour on 2 August 2024.

23 When determining whether to set aside a subpoena issued pursuant to r 42A of the Rules it is necessary to consider the requirements of the rule itself, the general requirements applicable to subpoenas for the production of documents and the overarching purpose in the Civil Procedure Act (2010) Vic ('CPA').

(1) This Order applies where a party who has a solicitor in the proceeding seeks to require a person not a party to produce any document for evidence before -

(a) the hearing of an interlocutory or other application in the proceeding; or

25 As appears from its terms, the r 42A procedure enables a party to serve a subpoena to compel a person who is not a party to produce any document 'for evidence'. As recently confirmed by Steffensen AsJ in Warwryk v Mercedes-Benz Australia/Pacific Pty Ltd (subpoena ruling), the phrase 'for evidence' means that a document sought under subpoena may potentially be required for evidence, either in-chief or in cross-examination.[1]

26 In Volunteer Fire Brigade Victoria Inc v Country Fire Authority, Forrest J made the following observations concerning the r 42A procedure:[2]

The distinction between a subpoena issued under O 42A and discovery is important ... The obligation on the party subject to a subpoena has been considered in a number of decisions ... The leading decision is that of the NSW Court of Appeal in National Employers' Mutual General Association Ltd v Waind and Hill:

...

There is also a point to be noted about subpoenas issued under O 42A, which was made by Kaye J in Newnham v Davies:

Subparagraph (1) of that rule specifically provides that the rule applies where a party seeks to require a person, not a party, to produce any document "for evidence" before the hearing of an interlocutory or other application in the proceeding, or before the trial of the proceeding. Thus, by its express terms the rule only authorises the issue of such a subpoena where the document, the subject of the subpoena, may potentially be admissible as evidence in the proceeding. Obviously, in order to be admissible, the document, of which production is sought, must have at least some potential relevance to the issues defined in the proceedings.

The words 'may potentially be admissible' are important. In coming to his conclusion, Kaye J cited Kennedy Taylor (Vic) Pty Ltd v Grocon Pty Ltd, in which Gillard J emphasised this qualification:

On a plain and literal interpretation of r42.10, aided by the definition and the forms, it is inescapable that the procedure under s42.10 is only available where the document is potentially required for evidence at the trial of a proceeding.

That is not to say that the procedure is not available if in the end result the document is not adduced into evidence but it is available to enable a party to inspect a document in order to make a decision whether or not to adduce it in evidence.

The purpose for the rule was also considered by Beach J in Belsart Pty Ltd v Man Po Holdings (Australia) Ltd. His Honour held that the rule was introduced to remove the inconvenience and injustice that could result from possible evidence produced on subpoena only being produced at trial. As the above authorities indicate, the real question is not 'admissibility' at large - which is determined at trial - but rather relevance.

It follows then that in determining whether documents are to be produced under subpoena pursuant to O 42A, a court must be satisfied that the documents sought to be produced are potentially relevant (in the sense of s 55 of the Evidence Act 2008 (Vic): 'the evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding'). But this Court on an interlocutory application should go no further.

27 Concerning the specific requirements of r 42A, I proceed on the basis of the decisions in Warwryk v Mercedes-Benz,[3] Volunteer Fire Brigade and the authorities there referred to by Forrest J.

28 Concerning the general requirements of an application to set aside a subpoena for the production of documents, I proceed on the basis of the following principles set out by Derham AsJ in Webb v Wheatley:[4]

(a) It is necessary for the party at whose request the subpoena was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought

(b) Except in cases where the subpoena is plainly too broad and merits the description of a fishing expedition, the judge should normally inspect the documents for the purpose of making a final decision as to whether a legitimate forensic purpose exists;

(c) However, the Court will not require production of subpoenaed documents, and will not permit access to subpoenaed documents, if the subpoena is expressed so broadly that the applicant cannot demonstrate, having identified a forensic purpose, that it is 'on the cards' (Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404, 414) or that there is a 'reasonable possibility' (DPP v Selway (Ruling No 2) [2007] VSC 244; (2007) 16 VR 508, [10]) that the documents will materially assist the case of the party;

(d) A 'fishing expedition' is not a legitimate forensic purpose and will not be permitted ;

(e) The relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose. There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her case;

(f) A mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not enough - the criteria set out in (c) must be satisfied; and

(g) Where a party fails to demonstrate a legitimate forensic purpose, the court should refuse access to the documents and set aside the subpoena.

...it has been held in several cases that it is the duty of the court, where the issue is raised, to require the party calling on a subpoena to produce documents to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought and to refuse access unless such an identification is made.

29 In Cargill Australia Ltd v Viterra Malt Pty Ltd (No 19), Elliott J said, and the parties to this dispute agree, there is an obligation on the party seeking production to demonstrate that it is 'on the cards' or that there is a 'reasonable possibility' the documents sought will materially assist the case of the party issuing the subpoena.[5] That is because as Elliott J observed, 'a legitimate forensic purpose will exist where based on the circumstances of the case, the documentation sought to be produced is not only relevant to the proceeding, but will materially assist in resolving an issue in dispute'.[6]

30 When considering whether to set aside a subpoena the Court must have regard to the obligation imposed upon it by s 9 of the CPA to further the overarching purpose for which the CPA provides, namely 'to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute'.[7] The overarching obligations in the CPA, which bind parties, legal practitioners and the providers of funding or financial support including litigation funders,[8] are also relevant. Those obligations include:

1. Overarching obligation to only take steps to resolve or determine dispute

For the purpose of avoiding undue delay and expense, a person to whom the overarching obligations apply must not take any step in connection with any claim or response to any claim in a civil proceeding unless the person reasonably believes that the step is necessary to facilitate the resolution or determination of the proceeding.

...

1. Overarching obligation to ensure costs are reasonable and proportionate

A person to whom the overarching obligations apply must use reasonable endeavours to ensure that legal costs and other costs incurred in connection with the civil proceeding are reasonable and proportionate to -

(a) the complexity or importance of the issues in dispute; and

(b) the amount in dispute.

31 The first subpoena requires the production of the following:

a. costs agreements;

1. funding, co-funding and/or litigation management agreements;

2. law firm relationship agreements; and/or

3. legal retainer agreements

in relation to the Relevant Actions.

1. Documents containing tenders or proposals, or requests for tenders or proposals, in respect of the funding or management of the Relevant Actions.

2. Documents recording and/or summarising the total yearly or monthly time billed or recorded by Mr Andrew John Watson in relation to the Relevant Actions.

3. Documents recording and/or summarising billed or recorded time entries made by Mr Andrew John Watson in any of the Relevant Actions insofar as those time entries refer to Mr John Walker and/or CASL.

4. Documents comprising communications between Mr Andrew John Watson and Mr John Walker and/or CASL and/or ICP in the period between 1 January 2020 and 12 November 2023 making reference to:

a. the group known as "Keep Corporations Honest";

1. the class action proceeding Lidgett v Downer EDI Limited S ECI 2923 01835;
2. any other Relevant Action; and/or
3. the terms of any commercial or other relationship between Maurice Blackburn and Mr John Walker and/or CASL and/or ICP.

32 The final category, category 6(d), is no longer pressed.

33 The first subpoena contains the following definitions:

'CASL' means any of CASL Group Pty Ltd ACN 645 222 546, CASL Funder Pty Ltd ACN 645 229 643 and CASL Management Pty Ltd ACN 645 229 116.

'Documents' has the same meaning under the Evidence Act 2008 (Vic) including but is not limited to the following:

(a) written records (including letters, memorandums, notes);

(b) electronic records (including emails, text messages, instant messaging chats and social media communications);

(c) digital files (including Word documents, PDFs, spreadsheets, presentations and databases);

(d) legal documents (including contracts and agreements);

(e) financial records (including invoices, receipts, ledgers, balance sheets); and/or

(f) business records (including meeting minutes, notes, plans).

'ICP' means any of Investor Claim Partner Pty Ltd ACN 611 462 027, ICP Funding Pty Ltd ACN 626 526 458, and ICP Capital Pty Ltd (deregistered) ACN 616 534 911.

'IMF' means Omni Bridgeway Limited ACN 067 298 088 formerly known as IMF Bentham Limited ACN 067 298 088, Bentham IMF Limited ACN 067 298 088 and IMF (Australia) Ltd ACN 067 298 088.

'Maurice Blackburn' means Maurice Blackburn Pty Ltd ACN 105 657 949 t/as Maurice Blackburn Lawyers.

'Relevant Actions' means the Relevant Commenced Actions and the Relevant Potential Actions.

'Relevant Commenced Actions' means all commenced proceedings in which Maurice Blackburn acted that were funded and/or managed by Mr John Walker and/or Walker Entities in the period between 1 November 2005 and 12 November 2023.

'Relevant Potential Actions' means potential or investigated (but not commenced) actions:

(a) proposed by Mr Andrew John Watson and/or Maurice Blackburn to Mr John Walker and/or Walker Entities; or

(b) proposed by Mr John Walker and/or Walker Entities to Mr Andrew John Watson and/or Maurice Blackburn

in the period between 1 November 2005 and 12 November 2023.

'Walker Entities' means:

(a) IMF, for the period between 1 November 2005 and 17 June 2015;

(b) ICP, for the period between 22 March 2016 and 12 November 2023; and/or

(c) CASL, for the period between 19 October 2020 and 12 November 2023.

Maurice Blackburn invoices in relation to the Relevant Actions which contain time entries of Mr Andrew John Watson.

35 The second subpoena contains the same definitions as the first subpoena.

36 In order to determine what is relevant for the purposes of rule 42A.01, what might be required 'for evidence' and what might materially assist the defendant's case, it is necessary to identify both the principles to be applied on an application for apprehended bias and to identify the grounds to be relied on by the defendant in its substantive application.

37 In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Kiefel CJ and Gageler J referred to the well known 'double might' test for apprehended bias in Ebner v Official Trustee in Bankruptcy[9]:[10]

...the criterion for the determination of an apprehension of bias on the part of a judge was definitively stated in Ebner by reference to previous authority and has often been repeated. The criterion is whether "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". The "double might" serves to emphasise that the criterion is concerned with "possibility (real and not remote), not probability".

38 In Ebner Gleeson CJ_,_ McHugh, Gummow and Hayne JJ said:[11]

[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.

39 In QYFM Kiefel CJ and Gageler J referred to the Ebner test as involving a distinct third step:[12]

Application of the criterion was identified in Ebner, and has been reiterated, logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.

40 As Kiefel, Bell, Keane and Nettle JJ explained in Isbester v Knox City Council:[13]

The question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely a factual one, albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made.

41 In QYFM, Gordon J identified four critical aspects of the Ebner test:[14]

First, it is an objective test: it does not require a conclusion about the judge's actual state of mind or an assertion of actual bias. The principle gives effect to the requirement that justice should both be done and be seen to be done.

Second, it is a test of possibility, not probability - whether the fair-minded lay observer might reasonably think that the judge might be biased. It has even been said that the fair-minded lay observer is generally taken to be mistaken because decision-makers will rarely be biased in the ways attributed to them, as the observer might have appreciated if fully apprised of the operation of a particular decision‑maker. That said, a finding of apprehended bias is "not to be reached lightly". In determining whether an apprehension of bias arises, relevant considerations include "the legal, statutory and factual contexts in which the decision is made" and "the nature of the decision ..., what is involved in making the decision and the identity of the decision‑maker".

Third, the test is not prescriptive about the ways in which a reasonable apprehension might arise. "The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty". Indeed, the apprehension may not even be of a consciously impartial mind. The test encompasses apprehension of unconscious bias: "the hypothetical observer would recognise that judges are human, not a 'passionless thinking machine' or robot just assessing information".

Fourth, the adjective "lay" in relation to the fair-minded observer is critical - "[i]t would defy logic and render nugatory the principle to imbue the hypothetical observer" with the knowledge and professional self-appreciation of a lawyer, let alone that of an experienced judge. The fair-minded lay observer is a member of the public because the principle is concerned with maintenance of public confidence in the justice system. "[I]t is the court's view of the public's view, not the court's own view, which is determinative".

42 As was common ground in this case, as stated by the High Court in Livesey v The New South Wales Bar Association:[15]

[The] principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.

43 While not to understate the importance of the principle of apprehended bias, a judge has a duty to decide cases allocated to him or her. A judge should not disqualify himself or herself on the ground of bias or reasonable apprehension of bias unless 'substantial grounds' are established.[16] As Steward J said in QYFM:[17]

Whilst a judge must exercise prudence in deciding whether or not to sit in a given case, he or she also has a duty to decide cases allocated to him or her. That duty should not be displaced without good cause; it cannot be set aside because of merely superficial appearances. As Gleeson CJ, McHugh, Gummow and Hayne JJ observed in Ebner:

Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.

44 In QYFM, Jagot J made observations to similar effect:[18]

A judge who is subject to a reasonable apprehension of bias in respect of a matter is disqualified from deciding that matter. But a judge who is not so disqualified generally has a duty to hear and decide the matters assigned to that judge (referred to as the "duty to sit"). A further part of the judicial oath or affirmation is that the judge must "well and truly serve" the current sovereign, and their heirs and successors. Such service is performed by discharging the functions of judicial office. If, from a judge's too ready acceptance of spurious or ill‑considered applications for disqualification for apprehended bias, a party could influence the constitution of the court, another source of apprehended bias would arise - a prospect which has been described as "intolerable". Accordingly, judges are mindful that "[d]isqualification on trivial grounds creates an unnecessary burden on colleagues, parties and their legal advisers" and that they must "be careful to avoid giving encouragement to attempts by a party to use procedures for disqualification illegitimately, such as in an attempt to influence the composition of the bench or to cause delay".

In applying the test for apprehended bias, with its "double might" components, a judge must be faithful to their judicial duty to discharge the functions of their judicial office. This duty to sit underlies such statements as that: (a) it "would be an abdication of judicial function" for a judge to adopt the approach that the judge will not sit if a party requests the judge not to do so on the ground of apprehended bias; (b) "[a]lthough it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit"; and (c) a conclusion of apprehended bias "must be firmly established and should not be reached lightly".

45 The observations by Jagot J about the unnecessary burden that can be imposed on the court, parties and their legal advisers as a result of disqualification when there is not a proper basis for that to occur align with objects stated in ss 9(1)(c) and (d) of the CPA. That is, to ensure the efficient conduct of the business of the court and the efficient use of judicial and administrative resources while recognising the object stated in s 9(1)(a), the just determination of the civil proceeding.

46 In Webb v The Queen, Deane J identified the four main categories of case where a judge might disqualify him or herself based on a reasonable apprehension of bias:[19]

The area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories of case. The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first (e.g., a case where a dependent spouse or child has a direct pecuniary interest in the proceedings) and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third (e.g., a case where a judge is disqualified by reason of having heard some earlier case... and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.

47 In this case, the primary ground relied on by the defendant is the third category in Webb v The Queen, disqualification by association. In addition, as clarified during the course of the hearing, the defendant intends to rely on the second category, disqualification by conduct, including by published statements and upon the fourth category, disqualification by extraneous information.

48 The defendant contends that the association between two individuals, the judge, Watson J, when he was a solicitor at Maurice Blackburn, and the person described by the defendant as the funder of the present proceeding, Mr Walker, provides the primary basis why Watson J should recuse himself. It submits:

the point is that what this kind of regime creates is a form of business relationship... where the lawyer, the funder and the manager are collectively investigating, instructing, prosecuting a case for their mutual financial return, and where that return is dependent upon the success of the action.

49 The Australian Institute of Judicial Administration's Guide to Judicial Conduct[20] suggests that while current business associations may be grounds for disqualification, past professional association with counsel or arms-length relationships are unlikely to provide a compelling reason for disqualification.[21] While that may be so, as stated in Isbester, it is necessary in each case to consider the factual context.

It is not only association with a party to litigation that may be incompatible with the appearance of impartiality. There may be a disqualifying association with a party's lawyer, or a witness, or some other person concerned with the case. In each case, however, the question must be how it is said that the existence of the "association" or "interest" might be thought (by the reasonable observer) possibly to divert the judge from deciding the case on its merits. As has been pointed out earlier, unless that connection is articulated, it cannot be seen whether the apprehension of bias principle applies. Similarly, the bare identification of an "association" will not suffice to answer the relevant question. Having a mortgage with a bank, or knowing a party's lawyer, may (and in many cases will) have no logical connection with the disposition of the case on its merits.

51 In this case the association between the judge and Mr Walker is alleged to comprise a long-standing professional and business relationship of at least 18 years' duration. The evidence of association in the Betts affidavit proposed to be relied on by the defendant focuses on three time periods: prior to 17 June 2015 when Mr Walker resigned from IMF ('the first period'), March 2016 - October 2020 (the second period') and 19 October 2020 - 31 October 2023 ('the third period').

52 The defendant alleges the relationship is one between a class action lawyer (via the law firm Maurice Blackburn) and class action funder/manager (via the Walker Entities). It submits the judge has conducted, participated in and overseen a commercial business relationship or venture with Mr Walker and the entities he has been a director of for their mutual financial benefit in the form of the receipt of significant legal fees, by way of 'uplift' and 'contingent' fees, as well as significant funder commissions or other entitlements.

53 The Walker Entities as defined in the subpoenas include the Funder and the Manager of the claims in this proceeding. The defendant submits that those entities together with Mr Walker have a significant economic interest in the decisions to be made in the proceeding. It submits that at each stage throughout the proceeding, the interests of the Funder and the Manager are directly and substantively tied to the decision of the Court. The defendant's interests are juxtaposed as against those of the Funder at the security for costs stage, in the case of any adverse costs order, the outcome of the trial, the approval of any settlement, the entitlement to and amount of a deduction from Claim Proceeds and the making of a remuneration order, whether a Common Fund Order pursuant to s 33ZDA of the Supreme Court Act 1986 (Vic) or some other kind of order.

54 While the defendant submitted that through CASL Group Pty Ltd ('CASL') Mr Walker and his wife have an interest in over half the Claim Proceeds that might be recovered by the Funder and the Manager and in over half of the liabilities that may be ordered by the Court whether as security for costs or as a consequence of adverse costs orders, the defendant accepts that it is only Mr Walker's interest in the CASL entities that is relevant and that the interest of Mr Walker's wife can be put to one side.

55 Senior counsel for the defendant identified six matters to be relied on in support of the ground of disqualification based on association. It is convenient to consider each of those matters.

56 The first matter concerns the plaintiffs' pleaded claim. Senior counsel referred to what he described as a pleaded allegation of dishonesty concerning alleged contraventions of s 1041E of the Corporations Act.

57 I do not accept that as an accurate characterisation of the pleaded case.

58 The amended statement of claim alleges the defendant contravened s 1041E(c)(ii) of the Corporations Act by making representations that were false in circumstances where the defendant ought reasonably to have known that the statement was false in a material particular or was materially misleading.

59 The pleading does not allege the defendant actually knew the representation was false or otherwise acted in a dishonest manner. The pleaded allegation is quite a different allegation to one which alleges a defendant knew the statement was false or, picking up the language of s 1041E(1)(c)(i), did not care whether the statement or information was true or false. No such allegation is made here.

60 The second matter relied on by the defendant is that the proceeding involves the Funder, the Manager and the lawyers' fees being conditional upon a successful outcome with a 25% uplift on those fees contingent on the success of the litigation. The Funder has assumed the burden of providing certain funding for the legal work and meeting adverse costs orders and is the person who receives regular detailed reports about the legal costs. The Funder and the Manager give the day-to-day instructions for the conduct of the proceeding.

61 The first two matters referred to are established by reference to publicly disclosed information set out in the Group Proceeding Summary Statement and the Funding Information Summary Statement. The third matter appears from the Law Firm Relationship Agreement a redacted copy of which is exhibited to the Betts affidavit. The fourth matter, that day-to-day instructions are provided by the Manager as agent for the client, including any decisions necessary and incidental to commencing progressing resolving or settling the claims, appears from the Litigation Management and Funding Agreement ('LMF Agreement') between the Funder, the Manager and Mr Fuller dated September 2022, a redacted copy of which is exhibited to the Betts affidavit.

62 The third matter relied on in support of recusal based on association is that the Funder is responsible for providing security for costs. This appears from the redacted copy of the LMF Agreement exhibited to the Betts affidavit.

63 The fourth matter relied on is that the Court may be the arbiter of the security for costs obligation. While that is correct, the usual practice is that a contested security for costs application is heard by an Associate Justice of the Court rather than by the judge managing, or anticipated to hear the trial of the proceeding.

64 The fifth matter relied on in support of recusal is that if the class action is unsuccessful the Funder and the Manager have no entitlement to recover their costs or remuneration. Unless there is success, there is no return. The interests of the Funder and the Manager are also subject to determination by the Court concerning the amount of any award of damages which, if not sufficient or a poor result, may mean that one or other or both of the Funder and the plaintiffs' solicitors would need to take a reduction in their fees. It is the Funder and the Manager who stand to gain the most from the litigation, at least as individuals, 18-33% of the Claim Proceeds according to the Funding Information Summary Statement. The exact percentage the Funder and the Manager will receive is subject to decision by the Court. The economic interests of the Manager and the Funder are tied both to the outcome of the litigation and to the Court as to ultimate remuneration.

65 Each of these propositions is correct. The contingent entitlement of the Funder and the Manager and the percentage range specified and the remuneration arrangements concerning Mayweathers is publicly available information. If there is an application for a Group Costs Order pursuant to s 33ZDA(1) of the Supreme Court Act 1986 (Vic) or an application to vary such an order pursuant to s 33ZDA(3) a judge other than the judge anticipated to be the trial judge will most likely hear such an application. That is because the judge hearing such an application may be provided with confidential information rendering it inappropriate for him or her to later hear the trial.

66 The sixth matter relied on by the defendant is that the Funder will need to seek approval from the Court for the deduction of an additional fee and remuneration for its role in the proceeding.

67 That statement is also correct. If a settlement is reached in the proceeding, particularly if settlement is reached proximate to trial, the usual practice is that a judge other than the anticipated trial judge will be the person to consider settlement approval. The settlement approval process will involve the judge hearing the application being provided with confidential information which would disqualify that judge from hearing the trial if he or she were to determine that approval should not be granted.

68 The second ground to be relied on in support of the substantive recusal application is disqualification by conduct. In introductory remarks in its 2021 report titled 'Without Fear or Favour: Judicial Impartiality and the Law on Bias' the Australian Law Reform Commission ('ALRC') made the following observations concerning this category of apparent bias:[23]

This category can be broadly broken down into two subcategories:

• where the apprehension of bias arises from something the judge has previously done, or a decision the judge has previously made, that is said to give rise to an unacceptable risk of prejudgment, even if subconsciously; and
• where the judge does or says something during the course of proceedings that might indicate prejudice, partiality, or prejudgment, seen in the context of ordinary judicial practice.

69 In this case the defendant relies on the first subcategory, although not in isolation from the association ground.

70 In Locabail (UK) Ltd v Bayfield Properties Ltd,[24] the Court of Appeal observed that claims of apparent bias will not 'ordinarily' succeed if based upon 'extra-curricular utterances (whether in textbooks, lectures, speeches, articles, interviews, reports or responses to consultation papers)'.[25]

71 The defendant submits one way the Court may deal with the recusal application is that even if the association between the individuals, the judge and Mr Walker, is not itself sufficient to engage the recusal principles, when looked at together with the statements considered cumulatively,[26] the reasonable, fair-minded observer might conclude that the judge might not decide the case on the merits.

72 It submits that in pursuit of the financial and commercial aims of their business relationship, the judge and Mr Walker separately and jointly advocated for their commercial interests and against measures or persons or organisations whose viewpoints or proposals might threaten or affect the viability of that model. In aid of the business relationship, targeted at the collective financial well-being of their organisations and indirectly themselves, the two men engaged in a form of public discourse directed to advancing their shared commercial aims. The depth of the association, the collective pursuit of class action success together on instructions from managers and funders and the strength of the rhetoric directed to those aims leads to the real and not remote possibility that in a class action involving litigation funding where potentially 18-33% of any recovery flows directly to the Funder, that Watson J may not decide security for costs, the case itself, Common Fund Orders, adverse costs and all other matters affecting the interests of his long-term business associate on their merits.

73 The defendant submitted that the clearest example of advocacy by the judge was his involvement in the Keep Corporations Honest industry group referred to in the Betts affidavit. That industry group was an association directed to advancing the interests of litigation funders and plaintiff class action law firms in which the judge and Mr Walker were involved.

74 The defendant drew attention to some of the public statements referred to in the Betts affidavit made by the judge prior to his appointment to the Court, statements including: 'class actions happen because companies break the law and cause significant losses for thousands of everyday Australians', and 'corporations use their power and size to hurt people'. It was submitted that the nature and content of the statements made by the judge before he was appointed is such that the reasonable fair-minded lay observer might think that he might not bring an independent mind to the issues in this case.

75 Section K of the Betts affidavit deals at length with statements and other matters proposed to be relied on to support these aspects of defendant's recusal application. The first subsection is titled 'joint views [with Mr Walker] or References in Publications', the second subsection is titled 'the 2020 Keep Corporations Honest Campaign', the third subsection is titled 'Publications in 2022' and the fourth is titled 'Other comments made by his Honour'. A large number of publicly available documents are extracted and discussed under these headings and various documents proposed to be relied on by the defendant in support of this ground for recusal are included in the voluminous exhibit to the affidavit.

76 The fourth category in Webb v The Queen upon which the defendant proposes to rely consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the relevant apprehension.

77 The defendant submits that by reason of his long association with Mr Walker, the judge understands CASL and Mr Walker's preferences as to security for costs and through the judge's dealings with CASL, its financial position. It submits that inside knowledge of the CASL business model, of the Funder and the Manager, and matters critical to their structuring of security for costs amounts to 'extraneous information' which might affect the disposition of an application for security for costs and which the judge could not put out of his mind in the sense described in Spincode Pty Ltd v Look Software Pty Ltd & Ors.[27]

78 In support of this proposed ground the defendant intends to rely on the fact that when a solicitor at Maurice Blackburn in 2023, the judge made affidavits in the Downer EDI litigation in relation to a multiplicity/carriage dispute in those proceedings. In those affidavits, three of which are exhibited to the Betts affidavit, his Honour referred to his understanding of the financial resources of funders.

79 The facts concerning the Downer EDI litigation include that the law firm who joined Maurice Blackburn in the carriage of the consolidated class action was funded by CASL who continued as a joint funder of the consolidated proceedings.[28]

80 The defendant submits that through the judge's dealings with CASL when a solicitor in relation to the Downer EDI litigation, there would have been a process of negotiation and engagement about the provision of security for costs, adverse costs orders and the fees of the litigation that required some insight and understanding of CASL's financial position.

81 The defendant submits that inside knowledge concerning the Walker Entities and CASL might be thought by the reasonable lay observer to give rise to a reasonable apprehension of bias.

(a) the subpoena process may (theoretically) be available to an applicant in a recusal application, but whether such a subpoena can withstand an objection to it, or an application to set it aside, is another matter;

(b) whether a subpoena can withstand an objection, or application to set it aside, will turn on the alleged factual and legal basis for the recusal application, the terms of the subpoena, and the circumstances of the case (and must take into account the CPA);

(c) admissibility will turn on the Evidence Act 2008 (Vic), and be governed by relevance together with the discretionary exclusion under s 135;

(d) in this case the subpoenas lack a legitimate forensic purpose. They do not add to the Betts affidavit and it is unnecessary and irrelevant to explore the details underlying the nature of the alleged association;

(e) permitting the subpoenas to stand would result in production of inadmissible documents, or (at best) documents of such peripheral probative value that their tender would be excluded; and

(f) the subpoenas amount to a pre-trial process which is inconsistent with the overarching purpose under the CPA.

83 The plaintiff submits the fair-minded lay observer does not have 'inside knowledge' of the specific relationship between the judge and the Walker Entities. There is no need to prove the hypothetical observer's knowledge of the matter beyond knowledge of the relationship which subsists. That is because the fair-minded lay observer is concerned with appearance rather than reality.[29]

84 The plaintiff submits the defendant is wrong to suggest that the fair-minded lay observer test requires the Court to examine 'the nature of the association, the frequency of contact, and the nature of the interest of the person associated, with the decision maker' by reference to material that is not known to the party asserting apprehended bias at the time it applies for recusal.

85 The plaintiff further submits it was wrong of the defendant to suggest that the fair-minded lay observer test requires the Court to 'examine his Honour's personal involvement in the Relevant Actions' and to 'determine his Honour's closeness, involvement, and direct association with those matters that were funded, managed or the subject of instructions by Mr Walker or the Walker Entities'. The plaintiff submits those are matters that go to an allegation of actual bias, not apprehended bias.

86 The plaintiff and Maurice Blackburn rely on Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd[30] and Clenae Pty Ltd v Australia & New Zealand Banking Group Ltd.[31] In Raybos, Kirby P made the following observations: [32]

Reasonable citizens are not lawyers. Nor are they taken to be entirely ignorant of the legal system or unwilling to make at least a few superficial enquiries about the particular case. They will have neither the time nor the inclination to explore the facts at length. Their approach will involve the wielding of a broad brush. Sadly, in current social circumstances in Australia, the reasonable lay observer may even be a little cynical about our institutions, however undeserved that may be, for the judiciary faithfully performing its duties day by busy day. Therefore, when, in the present case, the critical decision must be made, it seems to me that it is to be made by reference to an impressionistic, and to some extent superficial, opinion based upon a consideration of the broad features of the allegation made. It is not made upon a detailed exploration of and lengthy rumination about the legal or other merits of it.

87 In Clenae, a case which predates Ebner, Winneke P warned about the effects of 'judge shopping' on public confidence in the administration of justice:[33]

If the disqualifying interest rule is to apply in the stringent form for which the appellants here contend, it is not difficult to foresee that its application in that form will give rise to undesirable practices which are just as subversive of the public's confidence in the administration of justice as are the consequences which the appellants contend will flow from the broader formulation of the rule which I prefer. If a judge is bound to stand aside, upon objection, on account of holding a share interest in a party which could not possibly be affected by the outcome of the cause, then not only will inconvenience, cost and delay be occasioned to the parties but it will inevitably provide opportunities to parties to seek to avoid a hearing before judges whom they regard as possibly unfavourable to their cause. Furthermore, on this view, if the judge neglects, or fails for whatever reason, to disclose such an interest, his judgment will be liable to be set aside...

88 Concerning the primary ground relied on for recusal Maurice Blackburn submits, and the defendant accepts, that apprehended bias will not be present unless it is possible to identify the critical nexus addressed by the High Court in Ebner, namely:[34]

...the question must be how it is said that the existence of the "association" or "interest" might be thought (by the reasonable observer) possibly to divert the judge from deciding the case on its merits.

Maurice Blackburn submits that the required nexus is unable to be satisfied in this case.

89 In support of the subpoenas the defendant placed particular reliance on the observations by McHugh J in Hot Holdings Pty Ltd v Creasy that:[35]

...no conclusion of apprehended bias by association can be drawn until the court examines the nature of the association, the frequency of contact, and the nature of the interest of the person associated, with the decision-maker... Each case must turn on its own facts and circumstances.

90 The defendant submits that the dates and extent of time entries (i.e. contact with Walker Entities) is relevant to the test of apprehended bias by association. The time entry records will materially assist the Court to examine the frequency of the personal contact between the judge and Mr Walker and his associated entities.[36] As observed by McHugh J, frequency of contact is a necessary consideration in the analysis of apprehended bias by association.

91 While the defendant expects that the narrations in the time entry records may be subject to claims for legal professional privilege, it submits the dates and extent of the time entries will materially assist in further clarifying the frequency of contact and the extent of the relationship. It submits it would be antithetical to the interests of justice if the reasonable lay observer was confined in evaluating the association by reference only to publicly available information.

92 The obiter dicta observations by McHugh J in Hot Holdings have been picked up in later decisions[37] including in Austin BMI Pty Ltd v Deputy Premier where Freeburn J said:[38]

In invoking the device of the hypothetical fair‐minded observer, it is important not to jump to a characterisation of the process as "tainted". A reasonable observer who knows some of the facts, but not others, might be suspicious about what had gone on.

...

And so, all the circumstances, including the nature of the association, the frequency of contact, the nature of the interest of the associated person, needs to be examined...

93 In support of the subpoenas the defendant referred to Polsen v Harrison where the New South Wales Court of Appeal identified a number of relevant propositions including concerning the fair-minded lay observer:[39]

(vii) the fair-minded lay observer is presumed to approach the matter on the basis that ordinarily the judge will act so as to ensure both the appearance and the substance of impartiality, such that

(viii) the rebuttal of this presumption requires a "realistic possibility" of the apprehension of bias which is no "fanciful or extravagant" but is based on "the established facts" of the matter;

(x) the inquiry as to whether a judge might reasonably be apprehended to deviate from bringing an impartial mind to the resolution of a particular issue "requires no prediction about how the judge ... will in fact approach the matter" and "admits of the possibility of human frailty";

(xiv) there is to be attributed to the fair-minded observer a broad knowledge of the material objective facts as ascertained by the appellate court and the "actual circumstances of the case" as though the observer was sitting in the court;

(xvi) the context which must be considered includes the legal, statutory and factual context in which the decision is made, and "the totality of the circumstances", although the fair minded lay observer will not be taken to have a detailed knowledge of the law or legal principles;

(xvii) the knowledge that the fair minded observer is taken to have is not limited to those facts and matters that were known at the time of an application for recusal and includes published statements made by the judge (whether prior, contemporaneous, or subsequent to the recusal application);

(xxii) the fair-minded lay observer will have regard to the cumulative effect of comments made by a judge and not to particular individual statements removed from their context;

94 The plaintiff submits the defendant is wrong to suggest, that the observations by McHugh J in Hot Holdings mean the defendant either has an onus or a right to prove the terms of, and frequency of contact arising within the asserted business relationship. When considered in context the statement by McHugh J does no more than confirm that a Court cannot find apprehended bias on the basis of one material objective fact known and relied upon by the party asserting apparent bias, while ignoring another material objective fact.

95 The plaintiff submits the enquiry is focused on the nature of the interest and not on its particular character, for example a shareholder in a company or parent/child. Once that interest is established, applying Ebner, there is no warrant to go fishing out other inside knowledge or facts. The apprehension arises from the nature of the relationship. The question is not whether the tribunal will in fact be biased, but 'whether a reasonable man with no inside knowledge might well think that it might be biased'. [40]

96 Senior counsel for the defendant clarified during the hearing that as part of its recusal application the defendant relies on the 'special knowledge' ground.

97 Maurice Blackburn referred to 'special knowledge' in the apprehended bias context as being present where the judge may have gained knowledge about the facts of the case, including through privileged material in a brief as counsel, that may found a reasonable apprehension that as a judge he may have in mind extraneous material relevant to the case which is not known to one party.[41]

The fair-minded and reasonably informed observer

98 When considering whether a subpoena for the production of documents should be permitted on an application such as the present, and, if so, when considering whether the documents sought to be produced are both relevant and likely to materially assist it is critical to proceed by reference to the characteristics of the fair-minded and reasonably informed lay observer.

99 As all parties to the dispute accept, following the decision in Webb v The Queen, an application that a judge disqualify themselves for apparent bias is to be determined by reference to the conclusions that a fair-minded and reasonably informed observer might reach.[42] The plaintiff submitted, and the defendant accepted, that the test is:

whether a fair-minded lay observer with knowledge of the material objective facts might reasonably apprehend that the judge might not bring an impartial mind to one or more of the issues the judge is required to decide.

[emphasis in submissions]

100 As Deane J observed in Webb v The Queen:[43]

While the question is not settled by any decision of the Court, it appears to me that the knowledge to be attributed to him or her is a broad knowledge of the material objective facts as ascertained by the appellate court as distinct from a detailed knowledge of the law or knowledge of the character or ability of the members of the relevant court. The material objective facts include, of course, any published statement, whether prior, contemporaneous or subsequent, of the person concerned. If, in the particular case, the proper conclusion is that a fair-minded lay observer with a broad knowledge of those facts would not entertain a reasonable apprehension of bias, that is the end of the issue of disqualification by reason of an appearance of bias. [emphasis added]

101 In Raybos, Kirby P said the fair-minded observer is not a lawyer.[44] As earlier quoted, in QYFM Gordon J said:[45]

...the adjective "lay" in relation to the fair-minded observer is critical - "[i]t would defy logic and render nugatory the principle to imbue the hypothetical observer" with the knowledge and professional self-appreciation of a lawyer, let alone that of an experienced judge.

102 In Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd, Callinan J said:[46]

It is axiomatic that the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer. But the notional lay person should not be taken to be completely unaware of the way in which cases are brought to trial and tried.

103 While not a lawyer, the observer 'is taken to understand the dynamics of modern judicial practice'[47] and will have knowledge of the docket system employed by many courts.[48]

104 As Kirby P said in Raybos, the lay observer 'will have neither the time nor the inclination to explore the facts at length'.[49] The observer's approach 'will involve the wielding of a broad brush'.[50]

105 In Victoria v Psaila Ormiston J said the test 'requires the observer to be informed, not with the knowledge of Queen's Counsel, but at least with sufficient knowledge to make an informed appreciation of questions such as impartiality and the want of prejudice'.[51]

106 In Thomson v ANZ Banking Group Ltd, faced with an application relying on multiple grounds including that she had failed to disclose any relationship with ANZ and certain legal firms, the primary judge refused to recuse herself. On appeal, concluding that the ground relating to the ANZ did not have merit, the Queensland Court of Appeal commented:[52]

An application of the test based on the attribution to the fair-minded observer does not include an approach predicated on a fishing expedition about what the judge might have by way bank accounts or mortgages, nor any such thing held by members of the judge's family. To take that approach is to turn the fair-minded lay observer into a suspicious busybody, fishing for the unknown. That approach is unwarranted. No basis has been shown on the appeal as to why her Honour's approach in this respect was not correct.

107 In British American Tobacco Australia Services Ltd v Laurie, French CJ referred to the earlier decision of the High Court in Johnson v Johnson,[53] where the plurality said:[54]

Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx.

108 French CJ also referred to the observations made by Kirby J in Johnson v Johnson when discussing the attributes of the fictitious bystander his Honour said:[55]

Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances.

A reasonable member of the public is neither complacent nor unduly sensitive or suspicious.

I agree with the observation of Kirby J that a fair-minded lay observer would, before forming a view about the existence of a reasonable apprehension of bias, take the trouble to inform himself or herself to the extent necessary to make a fair judgment.

The judge the subject of the application is to determine the application

110 While it is the Court's view of the public's view, that of the fair-minded lay observer, not the Court's own view that is determinative,[57] it is for the judge asked to recuse him or herself to determine the public's view.

111 In Ebner, Callinan J expressed his preference that a decision on a recusal application be made by another judge.[58] Gleeson CJ, McHugh, Gummow and Hayne JJ did not agree.[59] Their Honours said that the trial judge who had dealt with the application himself:[60]

adopted what was both the ordinary, and the correct, practice in deciding the matter himself.

112 The ordinary and correct practice to which their Honours referred has not changed in the 24 years since Ebner.[61] It remains that it is for judges at first instance to hear and determine allegations of bias raised against themselves. As Kiefel CJ and Gageler J explained in QYFM, that is because at first instance, the judge who is the target of the objection constitutes the court.[62]

113 The 'ordinary and correct' practice extends to cases in intermediate appellate courts where there is an application to disqualify one of the members of the court for apparent bias.[63]

114 In QYFM, in what Edelman J described as 'seriously considered obiter dicta'[64] a majority of the High Court, consisting of Gordon, Edelman, Steward and Jagot JJ, expressed the view that in the case of a judge sitting as part of a multi-member court, prior to consideration by the court as a whole, consistent with their ethical duties, the judge asked to excuse themselves should have the first opportunity to determine whether or not to do so.[65]

The fundamental reason is the ethical dimension of bias. Issues of bias are not merely concerned with a dimension concerning the jurisdiction of the court or questions of whether justice will be seen to be done. Issues of bias also involve a dimension of ethics concerning whether justice will actually be done. From this perspective, the single judge is the only person who can scrutinise their own knowledge and beliefs: "it is the fundamental ethical duty of every judge to police [their] own disqualification status". That is a question of "conscience".

Another important reason for the practice of having the judge hearing the substantive dispute also decide the issues of bias is that that judge is usually in the best position to determine the relevant circumstances and to assess prudential and pragmatic reasons for recusal.

The practice and procedure for raising apprehended bias and determining objections has historically been informal.

118 A judge may disqualify themselves without an application being made on the ground of some past or present connection with a party or a witness in a proceeding. This may occur through the allocation of cases within the Court without notice to the parties and may result in another judge sitting to hear and determine the matter.

As a matter of prudence and professional practice, judges should disclose interests and associations if there is a serious possibility that they are potentially disqualifying. It is common, and proper, practice for a judge who owns shares in a company which is involved in a case in which the judge is sitting to inform the parties of that fact and to give them an opportunity to raise an objection should they wish to be heard. In most cases, the outcome is that no objection is raised and, by reason of waiver, any potential problem disappears. One reason for the practice is that it gives the parties an opportunity to bring to the attention of the judge some aspect of the case, or of its possible consequences, not known to, or fully appreciated by, the judge.

120 While judges should disclose interests and associations if there is a serious possibility they are potentially disqualifying, as Lord Woolf CJ said handing down the judgment of the Court of Appeal in Laurence v Thomas:[70]

Judges should be circumspect about declaring the existence of a relationship where there is no real possibility of it being regarded by a fair - minded and informed observer as raising a possibility of bias. If such a relationship is disclosed, it unnecessarily raises an implication that it could affect the judgement and approach of the judge. If this is not the position, no purpose is served by mentioning the relationship.

121 In Limbo v Little Martin J, with whom Rice and Kearney JJ agreed, held that:[71]

it is for the judge to decide for himself whether a disclosure should be made, not for a litigant to venture upon a "fishing expedition" with a view to ascertaining whether there is something personal to the judge, and not known to him, which could found an application that the judge disqualify himself. Judges are capable of putting aside personal predilections arising from life's experiences. We all, I suspect, have views, opinions and attitudes moulded by a variety of factors. Rigorous training in the discipline of the law and in particular the requirement of objectivity, together with the public insistence upon judicial integrity, mean that unless some material matter is raised by a litigant, or voluntarily disclosed by the judge, it is accepted that there can be no suggestion of reasonable apprehension of bias. Edmund Burke spoke of "the cold neutrality of an impartial judge". That is what is expected. If impartiality is lacking, or could be fairly thought to be lacking, it may well become evident sooner or later, but it is not for the litigant to pry into the judge's background.

122 As reported in 2021 in the ALRC Report, a party may decide to make an interlocutory application for the disqualification of the challenged judge.[72] Where a formal application is made it should be dealt with expeditiously.[73]

123 In Attorney-General of New South Wales v Bar-Mordecai, Rothman J said:[74]

... I should make some comment as to procedure ...

One cannot expect a self-represented person to appreciate the process by which apprehended bias is properly raised, but counsel should and, unless the Court sets out the practice, unrepresented litigants will never find out.

The Court of Appeal has previously described the orthodox method of raising with a judicial officer the question of apprehended bias. The relevant passage is cited, without criticism as to practice, by the High Court of Australia in Livesey v The New South Wales Bar Association. In Livesey there was an application made by counsel relating to apprehended bias in which counsel, together with counsel to whom they were opposed, approached the judges in chambers to notify them of the application to be made and its basis. That is the usual practice, when legal practitioners are involved in an application of that kind and non-compliance with it ought to be criticised.

In the case of a person, who is not represented by a legal practitioner such person may not have either the capacity or the knowledge associated with the means by which she or he might, together with her or his opponent, approach a judicial officer and deal with the matter in chambers, prior to the Court being convened. It is, for such a person, at least, incumbent upon the person, once they are aware, or ought to be aware, of the judicial officer who is sitting, for the person to notify the judicial officer through the judicial officer's associate of the intention to make application for the judicial officer to disqualify himself or herself and the basis of that application. This is a courtesy, but it is not simply a matter of courtesy.

Such notice aids in the administration the justice. It allows the other party, to the extent necessary, to be represented by a different counsel, if the application were to relate to a relationship between the judge and counsel, for example, and it allows the judicial officer to understand the nature of the application and to be prepared for it, prior to it being agitated in Court. That aids the administration of justice.

124 More recently in McKenzie v Cash Converters Int Ltd (No 3) Lee J quoted the procedure described by Rothman J with approval.[75] That procedure both reflects existing practice and is important to facilitate the efficient, timely and effective administration of justice for which the CPA provides.

125 Adherence to the procedure discussed by Rothman J by both counsel and self-represented litigants is particularly important in an environment where recusal applications appear to be growing in frequency. In his 2012 book Disqualification for Bias, John Tarrant wrote:[76]

The rate of recusal applications has arguably grown even further since the 1980s. Some litigants make numerous applications. This may in part be related to an increase in litigants in person. In Johnson v Johnson Kirby J said that, in part, "the increase in the number of litigants in person has undoubtedly produced a sizable proportion of the applications for disqualification for pre-judgement and resulted in many of the recent Australian decisions on the subject".

126 The December 2021 ALRC Report identified 745 judgments of the Commonwealth courts alone dealing with recusal applications in the period 1 January 2015 to 31 August 2021.[77]

127 In Slaveski v Rotstein & Associates Pty Ltd, Maxwell P, with whom Warren CJ agreed, noted that unrepresented parties 'very often' raised claims of apprehended bias that these were 'almost always groundless'.[78]

On what basis is a recusal application to be determined?

128 It is clear from the recent judgment in QYFM both that applications for recusal for apparent bias are to be determined based on information disclosed by the judge in respect of whom the application is made and that the disclosure made by the judge is not evidence.

129 In Ebner, Callinan J observed that when a claim of apprehended bias is made:[79]

...the basic facts should almost always be uncontroversial in the sense that, between them, the parties and the judge under challenge, should have laid out all of the relevant matters and facts that he or she can recall, for the decision whether they establish the relevant apprehension.

130 In QYFM, Kiefel CJ and Gageler J said it is for the judge to put forward the matters upon which the recusal application is to be determined:[80]

If, upon objection being taken, a procedure is followed according to which the judge in question places his or her knowledge of all relevant facts on the record at the outset, there is no reason why the requisite evaluative judgment ought not be formed by each judge of a multi-member court on the totality of the evidentiary material before that court. The judge's state of mind itself being a question of fact, there is also no reason why the same procedure should not be adopted in the unusual (and ordinarily unnecessary and inappropriate) event of an objection being made on the ground of actual bias.

The judge in question should state the facts and circumstances in open court. If a party makes an objection to a judge sitting, the parties should be given an opportunity to make submissions before the Court as constituted.

Where the issue of apprehended bias is genuinely arguable, its resolution, as discussed, almost always involves questions of degree which the judge with personal knowledge of the circumstances (fallible as the judge's recollection might be) is best placed to weigh.

... The conventional practice enables the judge best placed to know the relevant information to disclose it to the parties with the least formality and potential embarrassment to all involved, including, possibly, third parties. It also enables the judge, with the benefit of having heard the parties, to examine their own conscience to ensure that the duty to sit and adherence to the judicial oath or affirmation are not in tension (in which event, if the tension cannot be resolved, the latter must prevail). A mere change in preference as to judicial practice is not a sufficient basis for the articulation of any new principle of general application.

133 It is inappropriate for a judge to be asked to answer questions relating to disclosure made or not made on such an application.[83] In Makucha v Sydney Water Corporation Basten JA rejected a bias claim based on the trial judge's refusal to answer questions on whether he was Jewish or a Mason.[84] In Helow v The Secretary of State for the Home Department (Scotland) Lord Mance explained that evidence on appeal concerning a bias application:[85]

may include a statement from the judge as to what he or she knew at the time, although the court is not necessarily bound to accept any such statement at face value, there can be no question of cross examining the judge on it.

134 In QYFM, Jagot J expressly noted that the disclosure by the judge is not evidence. Her Honour said:[86]

... the existing convention [that the judge the subject of the application is to determine the application] does not create any difficulty with disclosure of the relevant circumstances as known by the judge the subject of the issue. The relevant judge alone is subject to the duty of disclosure and, under the existing convention, may make the disclosure as that judge sees fit. The disclosure is not evidence and is not required to be taken at face value. It does not expose the judge to cross‑examination. The parties are free to make submissions about the relevance and materiality of that disclosed information to the fair‑minded lay observer. [emphasis added]

As to the determination of the relevant circumstances, it is very common for a judge to disclose to the parties and to the court matters relevant to any issue of bias without a full recollection of the detail of those matters or a full description of all of the circumstances..... During a subsequent oral hearing concerning recusal the judge might recall and enunciate further facts or circumstances. And reasons given by the judge on the application might provide even further facts and circumstances. Indeed, the judge might recall further relevant facts or circumstances at any time before the substantive matter is determined. Memory is imperfect and elastic. It cannot be objectified and recorded for the application of apparently mechanical justice. The ethical duty of the subject judge to recuse themself where they consider bias (actual or apprehended) to be present continues throughout the hearing and applies to their developed memory.

... The subject judge's enunciation of their memory is not required to be treated as eidetic and a perfect documentary record. ...

...

Although the other members of the court remain capable - even duty-bound in some circumstances - to make that assessment, they are not required to make it prior to the subject judge first making the determination. Indeed, on issues of actual bias, even if the subject judge were to commit their assessment of their state of mind to some form of "record", and even if that record could somehow be treated as a counsel of perfection guiding everything that happens thereafter, it would be absurd to suggest that the other members of the court are in the same position to assess the state of mind of the subject judge based upon that "record". As Lester has observed, "[t]hat material cannot really be said to be 'evidence'", with the effect, as he concludes, that another "objection to Sir Anthony Mason's view turns on the difficulty that arises where members of the panel take a different view of the 'evidence' and what has been established".

Is evidence admissible on a recusal application?

136 The ALRC reported that one of the areas of uncertainty in relation to the procedure for making a disqualification application is whether or not affidavit evidence is required, or admissible, in support of a disqualification application.[88] The comprehensive ALRC Report, including the review of judgments referred to above makes no mention of the actual or prospective use of subpoenaed material on an application such as the present.

137 If evidence is never admissible on a recusal application, the r 42A procedure relied on in this case, which in terms requires the production of a document 'for evidence', is unavailable in support of an application such as the present.

138 There are good reasons why evidence in support of an application for disqualification of apprehended bias should be discouraged. As Kirby J observed in Ebner:[89]

There is now a much greater willingness to mount arguments of disqualification against judges. .... Whilst it is essential that such objections be decided dispassionately and in a principled manner, it is equally desirable that litigants should not be able to control which judge or judges will decide their cases; that the applicable rule should take into account the realities of litigation; and that the rule should avoid imposing unnecessary disqualifications on judges, having little or nothing to do with the merits of the judge's involvement in the case.

139 The cases reveal a willingness to accept evidence on appeal but where consideration has been given to whether evidence should be received at first instance, statements to the effect that evidence should not be permitted.

140 In Australian National Industries Ltd v Spedley Securities Ltd (in liq), Mahoney JA, with whom Meagher JA agreed discussed the reasons why in the opinion of his Honour evidence is not permitted or admissible at trial on a recusal application:[90]

There are obvious reasons why the issue of, for example, whether a particular judge is in fact biased or there is an appearance of bias should not be the subject of factual contest, by evidence and counter-evidence, before the judge...

Ordinarily matters of bias or pre-judgment are not susceptible of proof in the ordinary way, by allegation and counter-allegation; whether a judge is affected in such fashion is ordinarily a matter known essentially by him. And, I think, if such a matter were brought to contest in such a way, by evidence against evidence, the position of the judge and his impartiality would be - or ordinarily would be - destroyed.

141 In Barton v Walker an affidavit was filed seeking that the judge disqualify himself.[91] The next day, in open court, without hearing argument the judge gave short reasons why the application would be rejected. His Honour directed the affidavit be removed from the Court file.[92] An application to appeal from the recusal decision was refused.[93] On appeal Samuels JA asked rhetorically:[94]

How does the judge deal with assertions of fact which he knows to be incorrect? They might not be challenged by the party not moving. How can the judge himself introduce evidence, upon which he might have to rule, if its admissibility is challenged, and which he might ultimately have to evaluate?

142 More recently in DOQ17 v Australian Financial Security Authority (No 2) Perry J made orders that no affidavit be filed in relation to an application seeking her disqualification for actual or apparent bias except with leave of the Court.[95] Her Honour considered:[96]

the giving of sworn evidence in support of allegations of alleged or apprehended bias carries with it certain dangers which should be taken into account by the Court in deciding whether such evidence is appropriate. These dangers potentially include that:

(1) the process of proving the facts by affidavit itself may give rise to an apprehension of bias such that the decision maker must in any event disqualify herself or himself;

(2) statements may be made that are regarded as constituting a contempt of court;

(3) inaccurate or dishonest statements may be made; and

(4) the decision maker may know that assertions of fact by the moving party are incorrect but those assertions may not be challenged by the other parties and they cannot, of course, be refuted by evidence from the decision maker.

143 In Wentworth v Rogers the Court refused to accept evidence on affidavit concerning purported private conversations involving the judge.[97] In Wentworth v Rogers Handley JA referred to Zanatta v Cleary where the Court declined to receive affidavit evidence from a legal practitioner who deposed to a conversation with a trial Judge after he had given judgment, which was said to show that the judge acted on grounds which had not been proved in evidence before him.[98] The Court held the evidence was inadmissible principally for reasons of public policy.

a Judge of a Court of Record cannot be compelled to testify to the considerations which led him to his decision, or to the manner in which he has exercised his judicial powers.

... if, as I think, the Judge of a Court of Record is not compellable to testify to the considerations which led him to his decision, and if, indeed, his own evidence is not to be received upon such matters ... I cannot see that they can be proved by evidence of his statements out of Court. It is ... the subject matter of the evidence which is objectionable rather than the mode of proof ... such evidence is not admissible, if its purpose is to show the process of reasoning or the factors taken into account in coming to the decision.

145 The views expressed by Mahoney JA in Australian National Industries and by Samuels JA in Barton v Walker do not appear to have been considered by other judges who at first instance have both permitted and acted on the basis of affidavit evidence when called upon to determine a recusal application.

146 In Lawrie v Lawler Southwood J was asked to disqualify himself for apprehended bias from hearing Mr Lawler's application for costs.[100] The recusal application was based on an email sent by the wife of the judge to Mr Lawler's solicitor and a further email sent by the solicitor to the judge's wife.[101] The wife of the judge was a public servant employed by the Attorney-General's Department of the Northern Territory. While not a solicitor, part of her work involved acting as a point of communication between the agency requesting legal services, the lawyer in private practice and the director of the relevant division within the Solicitor for the Northern Territory.[102] The judge determined the recusal application on the basis of facts established by the affidavits of Mr Lawler's solicitor, the transcript of early hearings and documents.[103] His Honour proceeded on the basis of the affidavit evidence without discussing whether it was appropriate or otherwise to do so. His Honour determined not to disqualify himself from hearing the costs application.[104]

147 Southwood J's decision was upheld on appeal.[105] On appeal, the Court proceeded on the basis of the evidence below, including the affidavit evidence, without passing comment on the appropriateness or otherwise of the procedure adopted. It did however deal with a submission, also made below, that the judge's wife should have been called to explain her involvement in the grant of legal representation. Concerning that issue, Doyle and Duggan JJ said:[106]

If she had been called, her involvement in the grant of legal representation could have been explored by way of cross examination and in that event the Judge would have been embarrassed by having to decide whether or not to accept her evidence. Moreover, it was said her employment might be at risk if she had made a mistake. The short answer to this is that she was not called. The Judge did not have to consider her evidence. The failure to call her was something for the Judge to take into account in deciding the issue before him. But we mention that by way of precaution. In our opinion there was no need for the Judge's wife to be called and there is nothing to be made of the fact that she was not called. We fail to see how one can argue that if she had been called there would have been a problem, bearing in mind that she was not called.

148 In Environment Protection Authority v Maules Creek Coal Pty Ltd Pritchard J determined an application that she recuse herself for apparent bias based on affidavit evidence.[107] Her Honour did so without consideration of whether such evidence is appropriate or otherwise as the basis for an application. While there was an appeal from her Honour's decision and the Court of Appeal referred to the reliance on affidavit evidence below, the Court did not make any observations about the appropriateness or otherwise of the receipt of such evidence.[108]

149 In each of the decisions where the admissibility of and reliance on affidavit evidence at first instance in support of an apparent bias application has been considered, the courts have either rejected or expressed concern about the admissibility of such evidence. By reference to those decisions, and consistent with the concerns expressed in them, I consider the better view is that evidence is not admissible in a recusal application for apparent bias at first instance.

150 In those circumstances it is unsurprising that when I enquired whether counsel were aware of any decisions of an Australian court in which a subpoena had been issued to obtain documents in support of a recusal application for apprehended bias that no cases were identified.

151 Preliminary researches by my associates during the hearing did not disclose any decision of Courts in the United Kingdom dealing with a subpoena in such circumstances. Further submissions from the parties following the hearing also failed to identify any decisions in which a subpoena had been issued in support of a recusal application at first instance.

152 Subsequently one decision of the Victorian Court of Appeal was located. In R v Badenoch the Court of Appeal upheld the decision of the trial judge in a criminal trial not to allow evidence from a witness upon whom a subpoena had been served to support a recusal application.[109] The ruling by the trial judge, an appendix to the reasons of the Court of Appeal discloses that the trial judge refused the application, reasoning that his Honour had had no professional or social contact with the witness for several years.[110] Neither the ruling nor the decision of the Court of Appeal include discussion of the availability or otherwise of a subpoena as a matter of principle in such circumstances.

153 In contrast to the position at first instance, there is strong support for the admission of evidence on appeal where allegations of actual or apprehended bias are involved.

154 In Rajski v Scitec Corp Pty Ltd found:[111]

It would be absurd, to adapt what was said in Watson, if, in considering whether such leave should be granted, the Court were to be confined to the evidence at first instance. Such evidence might not in any way disclose the background of facts which demonstrate the bias suggested on the part of the judge or the facts from which the Court was invited to infer that members of the public might have that reasonable apprehension of bias that would necessitate judicial disqualification and enliven appellate intervention. The very nature of the allegation is such that it may sometimes be necessary to test its viability by reference to extraneous circumstances, properly proved.

155 Although in Rajski Samuels JA rejected the material that the claimant wished to have admitted his Honour said 'evidence in support of the claim may well be admissible and the court dealing with it cannot necessarily confine itself to the evidentiary material tendered and admitted below'.[112]

156 In Royal Guardian Mortgage Management Pty Ltd v Nguyen interactions between the judge and senior counsel appearing for the respondent were relied on in support of a bias application.[113] It was asserted that the judge intended to engage that senior counsel in a proceeding in which the judge was personally a party.[114] On appeal, leave was sought to rely upon an affidavit of senior counsel for the appellant, and documentary evidence obtained via a subpoena issued to senior counsel for the respondent (which included email correspondence between the judge's associate and the senior counsel). The application to adduce the further evidence was not opposed and was granted by the NSW Court of Appeal.[115]

157 Dovade Pty Ltd v Westpac Banking Group involved an application to issue a subpoena on appeal in support of the ground of appeal relating to bias on the part of the trial judge.[116] The trial concerned claims for money lent. The trial judge found in favour of the respondents.[117] On appeal the appellants contended the trial judge, Rolfe J, had failed to fully disclose his relationships with Westpac Banking Group. The appellants relied on an affidavit of their solicitor, but also sought leave to issue a subpoena to Westpac for the production of records relating to customers including Rolfe J. The bias case focused on non-disclosure of a shareholding by Rolfe J's wife. Mason P refused to grant leave to issue the subpoena:[118]

I think it will be obvious to any fair minded observer, that the question of the issue of subpoenas to explore the personal financial dealings of a judge as a basis for challenging his or her sitting in a case or challenging a decision made by that judge raises significant issues. The Court must maintain control of its process, holding a balance between the legitimate rights of a litigant to have his or her case dealt with in a way that that does not leave any bad taste based upon a reasonable - and I emphasise reasonable - apprehension of unfairness; but balancing on the other side the legitimate personal interests of a member of the judiciary and the legitimate interests of the administration of justice as a whole. By the latter I mean there is a very real risk that certain litigants could resort to blanket subpoenas in aid of an improper attempt to avoid a matter being heard by a judge not of their choosing. I emphasise this statement is not directed at any of the present parties in the appeal.

.... In my view it would not be proper to lend the aid of the Court to what would be a fishing expedition in aid of a matter that is not addressed in the written submissions or the foreshadowed amended notice of appeal. I am comforted in that view by a firm conviction that the mere fact that a judicial officer has a customer relationship with a litigant party could not in itself be a basis for any reasonable apprehension of bias. It was pointed out in argument that the proposition in its baldest form would extend to the judge who bought petrol at a particular place or goods at a particular shop.

158 The subpoena in Dovade was reformulated and a renewed application for leave to issue the subpoena was made. On 26 November 1998, Mason P declined to resolve the issue and stood it over to the hearing of the appeal:[119]

My mind remains open on the point whether a judge should disclose a mere bank-customer relationship. But as presently advised, I do not think that it has sufficient prospect of success to merit the permitting the appellants at this stage of the proceedings, after failed or abandoned earlier attempts, to issue process invasive of the privacy of a banker customer relationship. I remain of the view expressed in my [earlier] judgment, recognising that the matter is yet to be fully argued.

159 In CUR24 v DPP the NSW Court of Appeal was faced with a factual dispute about prior comments said to have been made by a judge.[120] The appellant sought an order the judge be disqualified from sentencing him, and from hearing other criminal proceedings pending against him.[121] The assertion of reasonable apprehension of bias was based upon comments the judge was said to have made at a social function to the solicitor acting for the applicant amounting to or evidencing prejudgment.[122] The judge disputed making the comments in the terms alleged.[123] The application for recusal relied upon an affidavit of the appellant's solicitor.[124] The Attorney-General, who was given leave to appear, objected to the affidavit being read, sought to cross-examine the solicitor and to file an opposing affidavit from another witness.[125] The Court of Appeal admitted the affidavit of the solicitor, but refused cross-examination and the admission of the opposing affidavit.[126] In considering whether the Court should make findings as to disputed matters before applying the reasonable apprehension of bias test, Meagher JA with whom Whealy JA agreed said:[127]

Where there is a dispute as to the terms of an out of-court statement made by the judicial officer and plausible evidence as to the making of that statement, in my view the relevant principles do not require that the court first resolve that dispute by making findings of fact before applying the fair-minded bystander test. In a case such as the present, the objective assessment called for by that test should take account of the circumstance that there is a dispute concerning the conduct or statements relied upon. For that reason, evidence directed to enabling the court by a process of fact-finding to resolve that dispute was not relevant in this case.

The principal reason why in the present case the circumstances to which the reasonable bystander test is applied should include the fact of any dispute as to what was said is that the relevant principles are concerned with appearance, rather than reality, and from the perspective of a fictional observer chosen to secure the outcome that the public have confidence in the administration of justice...

...A finding on the balance of probabilities that something was not said would not exclude in the eye of the fictional observer (or the court) the real and not remote possibility that it was said. Depending upon what is alleged to have been said, that possibility may carry with it the further and real possibility that the judicial officer might not bring an impartial mind to the question in issue.

160 In its further submissions following the hearing the defendant referred to Christian v Société Des Produits Nestle SA (No 1), where the Full Court of the Federal Court admitted and considered affidavit evidence in support of allegations of apprehended bias,[128] and Cavar v Greengate Management Services Pty Ltd, where Bromwich J admitted affidavit evidence in support of allegations of apprehended bias made in respect of the primary judge.[129]

161 In Charisteas & Charisteas & Ors the majority of the Full Court of the Family Court held that an affidavit in which the husband gave evidence concerning contact between the primary judge and the wife's counsel was both relevant and admissible.[130] On appeal, the High Court did not criticise this approach.[131]

162 There have been a limited number of decisions concerning subpoenas on appeal where bias on the part of the trial judge has been in issue.

163 In Charisteas v Charisteas & Ors it was alleged that the trial judge was biased at some point between the trial and reasons being delivered.[132] The trial judge sought certification from the Attorney-General that he was incapable of continuing as a judge due to permanent disability or infirmity.[133] Strickland J set aside an application by the husband for leave to issue a subpoena directed to various Ministers of the State of Western Australia and of the Commonwealth seeking documents relating to the certification of the retirement of the trial judge as a judge of the Family Court of Western Australia due to permanent disability or infirmity.[134] Although the decision is a decision of a single judge in relation to a subpoena, the application related to the husband's appeal, a single judge having power under the Family Law Rules 2004 (Cth) and the Family Law Act 1975 (Cth) to determine applications of a procedural nature relating to an appeal.[135] Strickland J was not satisfied that the apparent relevance of the documents to the ground of appeal had been established and dismissed the application on that basis.[136]

164 In Quach v NSW Health Care Complaints Commission (No 6) recusal was sought on the ground that Sackville JA was invalidly appointed.[137] An attempt to subpoena the Attorney-General for information concerning the judge's appointment was rejected by Gleeson JA (Sackville JA agreeing). In Quach v New South Wales Health Care Complaints Commission, after the recusal hearing had occurred, a notice to produce was served on the Crown Solicitor's office regarding Sackville JA's appointment.[138] Leave to issue the notice to produce was refused. Gleeson JA reasoned that as the challenge to appointment had been rejected, no legitimate forensic purpose would be served by permitting service of the notice.

165 In Barton v Walker Samuels JA, with whom Reynolds and Glass JJA agreed observed:[139]

It is rare, however, for a party, through solicitor or counsel, to ask a judge not to sit, unless the judge has himself first disclosed the existence of some interest or association.

166 The first notice that the proceeding had been reallocated and would now be managed by Watson J was by email from the Commercial Court Registry to the solicitors for the parties on 4 June 2024.

167 On 17 June 2024 his Honour's chambers confirmed a case management conference had been listed before his Honour on 30 October 2024.

168 On 23 and 24 July 2024 an email exchange took place between the defendant's solicitors, Herbert Smith Freehills, and the plaintiff's solicitors concerning an email the defendant's solicitors proposed to send to his Honour's chambers foreshadowing a possible recusal application but which the plaintiff's solicitors did not agree should be sent. In those circumstances the defendant's solicitors asked that the matter be listed for mention which was arranged to occur on 2 August 2024.

169 At a mention before Watson J on 2 August 2024 senior counsel for the defendant handed up a copy of the draft email and the balance of the communications exchanged between the solicitors on 23 and 24 July 24. The draft email relevantly stated:

In the context of the re‐allocation, we write to directly bring to the Court's attention the fact that the proceedings are funded by CASL Funder Pty Ltd (CASL Funder). The Funding Information Summary Statement for this proceeding states that CASL Funder has appointed CASL Management Pty Limited (CASL Manager) to assist with the management of litigation funding. It also provides that in the event that the class action is successful, CASL Funder and CASL Manager will seek to recover an amount in the range of 18-33% of the claim proceeds.

Mr John Walker is a director of both CASL Funder and CASL Manager. He is also a director of the holding company of those entities, CASL Group Pty Ltd (CASL Group). Together with Ms Mary Walker, Mr Walker has a significant ownership stake (~ 57%) in the CASL Group through a corporate entity.

As a result, through CASL Group and its subsidiaries, Mr Walker has a clear economic interest in the outcome of the proceedings.

Previously, Mr Walker was also a director of, and had an ownership stake in, IMF Bentham Limited ‐ holding between 2.95 million and 7.42 million shares in IMF Bentham through entities controlled or substantially owned by him.

The defendant considers it is necessary to draw the above matters to the attention of the Court by reason of the long standing association between Mr Walker and His Honour, which arises, from amongst other things, the conduct and/or investigation by Maurice Blackburn of multiple group proceedings funded by IMF Bentham whilst Mr Walker was a director of, and economically interested in IMF Bentham, and His Honour was the Head of Class Actions at Maurice Blackburn and more recently the joint funding of the Downer EDI class action (Lidgett v Downer EDI Ltd) by Maurice Blackburn (whilst His Honour was the Head of Class Actions) and CASL Funder.

The Defendant's counsel with carriage of the matter are available to address the Court further on these matters, if his Honour would be assisted by this.

The solicitors for the Plaintiff have been provided prior notice of, and are copied into, this email.

170 In addition to providing a copy of the draft email senior counsel for the defendant handed up copies of the decisions in QYFM and Ebner, and a copy of the Guide to Judicial Conduct. Senior counsel referred to chapter 3 titled 'impartiality' and to section 3.3.4 'personal relationships', in particular:

(d). A current or recent business association with a party will usually mean that a judge should not sit on a case. For this purpose a business association usually does not include associations such as insurer and insured, banker and customer, rate payer and local government body, but it might do so, depending on the circumstances.

171 Senior counsel informed his Honour that the defendant wished to ensure that an aspect of the case that may not be known to or fully appreciated by his Honour was directly communicated. He said the defendant made no application at this juncture, the appropriate course was to raise the matters with his Honour in that manner. Senior counsel submitted it was a matter for an informed assessment by all involved and that he wished to provide an opportunity to communicate the matters identified in the draft email as a matter of courtesy.

172 After hearing from senior counsel for the plaintiff who said that if the defendant was to make an application it is a serious thing and should be made on the basis of proper materials his Honour responded as follows:

unless I've misapprehended the content of the communication, the matters with are averted to are matters of which I was aware. I was aware of the involvement of the funder and I was aware of.... the association of Mr Walker with the funder. And you can rest assured that I gave consideration to those matters before I took - accepted that the matter would be allocated to me. If your client wants to make any application on that basis they can do so. But you need not worry that those matters had not arisen. In my mind [as] things that I needed to consider.

174 There was no further communication with his Honour's chambers until 4 September 2024 when the defendant's solicitors sent an email to chambers attaching a copy of the proposed summons and the Betts affidavit (without exhibits) and requesting a return date for the summons.

175 On 5 September 2024 Chambers advised the return date for the summons would be 30 October 2024. Orders were made for the filing of any further affidavits and written submissions. The case management conference and the application for security for costs were adjourned to a date to be fixed.

176 The first subpoena was issued on 5 September 2024.

177 The existing evidence proposed to be relied on in the form of the Betts affidavit and its exhibit is extensive. The affidavit comprises a series of introductory paragraphs, a section describing the proceeding and communications prior to the 2 August 2024 mention followed by substantive sections:

(a) Section D setting out details of the arrangements for funding and management of the proceeding;

(b) Section E addressing the role of Mr Walker and his associated entities;

(c) Section F addressing the judge's tenure at Maurice Blackburn;

(d) Sections G and H addressing Maurice Blackburn class actions funded by Mr Walker's associated entities including the Downer EDI litigation;

(e) Section I addressing the provision of instructions or recommendations to Maurice Blackburn by the Manager;

(f) Section J addressing the pre-litigation investigation of claims by Maurice Blackburn and Mr Walker's associated entities; and

(g) Section K addressing other matters, including joint views or references in publications, the 2020 Keep Corporations Honest campaign, publications in 2022 and other comments made by the judge.

178 The nature and scope of the existing evidence is important because assuming an entitlement to issue a subpoena, unless the moving party is able to demonstrate that it is 'on the cards' that the documents sought to be produced will materially assist that party's case production will not be ordered.

180 A subpoena may only be issued pursuant to r 42A in order to secure the production of a document 'for evidence.' A recusal application at first instance is not heard and determined by reference to evidence. At first instance evidence is not admissible.[140] It follows the subpoena process for which the rule provides is not available in the present circumstances.

181 The 'ordinary and correct practice'[141] is that the judge who is the target of the objection both constitutes the court and determines the objection.[142] The judge does so based on his or her knowledge of all relevant and material facts and circumstances disclosed in open court.[143] The disclosure by the judge is not limited to publicly available information as appears to be assumed in submissions on behalf the defendant.[144]

182 It is the fundamental ethical duty of the judge to disclose all relevant material facts and circumstances and to police his or her own disqualification status.[145] As Martin J said in Limbo v Little, it is for the judge to decide whether disclosure should be made and not for a litigant to venture upon a 'fishing expedition'.[146] It is not for the litigant to pry into the judge's background as was sought to be done in some of the earlier cases previously discussed including Quach and Dovade.

183 The disclosure by the judge is not evidence.[147] The disclosure by the judge provides the foundation upon which parties are to be afforded an opportunity to make submissions.[148]

184 When determining the recusal application the judge does so based on his or her own disclosure, not based on or by reference to evidence. The judge does so standing in the shoes of the fair-minded lay observer.

185 Consistent with the judge determining a recusal application through the lens of the fair-minded lay observer based on disclosure, the ordinary and correct practice does not contemplate evidence, let alone evidence on subpoena. As noted by Gordon J in QYFM, the practice and procedure for raising and determining objections for apprehended bias has historically been informal.[149]

186 The judge cannot introduce evidence upon which he or she might be required to rule.[150] While not required to be taken at face value, disclosure by the judge does not expose the judge to cross-examination.[151]

187 Just as the judge cannot adduce evidence at first instance on a recusal application, it is not open to the parties to adduce evidence.[152]

188 If when making disclosure the judge does so without a full recollection of the detail or a full description of all of the relevant material circumstances and if later during an oral hearing, or before the application is determined the judge recalls further facts and circumstances, it is the duty of the judge to enunciate those facts or circumstances.[153]

189 When applying the 'double might' test in Ebner, the judge does so standing in the shoes of the fair-minded lay observer. The fair-minded lay observer will identify the material objective facts in order 'to inform himself or herself to the extent necessary to make a fair judgement'.[154]

190 The observer has a broad knowledge of the material objective facts, supplied by the judge. It is not the role of and therefore not material to the fair-minded lay observer to 'explore the facts at length'.[155] The observer has neither the time nor the inclination to do so.[156] The observer proceeds on the basis of the broad features of the allegation made and not upon a detailed exploration of and lengthy rumination about the legal or other merits of it'.[157]

191 The observer is not a lawyer and will not be as informed as the perception of a lawyer, particularly a litigation lawyer.[158] The observer does not have a detailed knowledge of the law or knowledge of the character or ability of the members of the relevant court. The observer will inform him or herself to the extent necessary to make a fair judgement about the existence of a reasonable apprehension of bias.[159]

192 When these attributes and what is needed in order to apply the test in Ebner are borne in mind, there is no room for evidence or subpoenaed material on the hearing and determination of a recusal application.

193 Further, to permit evidence to be adduced by a party to the recusal application at first instance would at the very least:

(a) create a situation of imbalance and inequality in the materials to be considered, the evidence of the issuing or other parties on the one hand and the judge's disclosure on the other hand - not evidence;

(b) give rise to the risk that the judge may know assertions of fact in evidence to be incorrect or untrue but be powerless to correct or to challenge those matters by evidence;[160]

(c) likely create a factual contest, upon which the judge, if required to rule, would be required to choose between evidence and his or her recollection and would as a result have his or her impartiality compromised.[161]

194 There is a real danger that if a subpoena were to be permitted in connection with such applications the result would be a proliferation of subpoenas issued without merit in support of groundless applications for disqualification on the basis of apprehended bias, including by unrepresented parties.

195 While in a case involving an allegation of apprehended bias by association the nature of the association, the frequency of contact and the nature of the interest of the person associated with the decision-maker may be relevant, consideration by the observer of those factors is by reference to the broad knowledge of the material objective facts with which the fair-minded lay observer is credited. That knowledge does not include the minutiae of the association. To proceed on the basis of the minutiae would be to turn the fair-minded lay observer into a 'suspicious busybody, fishing the unknown'.[162]

196 The observations by McHugh J in Hot Holdings cannot be used to displace the established approach of the fair-minded lay observer as the defendant seeks to do in this case.

197 In Christian v Société Des Produits Nestle SA[163] discussing whether evidence should be admitted on such applications, but with equal application to subpoenas, Bennett J identified the risk to the administration of justice and the overarching purpose of:

spunous invendo based upon evidence obtained by trawling through the internet to trace indirect and remote links between a judge and a practitioner cannot provide a basis for actual or apprehended bias.

198 The subpoena process for which r 42A provides was introduced to remove the inconvenience and injustice that could result from possible evidence produced on subpoena only being produced at trial.[164] The proposed use of the process in this case is far removed from that purpose.

199 The CPA requires the court to give effect to the overarching purpose in the exercise and in the interpretation of its powers including where those powers are derived from the procedural rules of the court.[165] It would be contrary to the overarching purpose to permit the r 42A procedure to be used in support of an application that a judge recuse him or herself from the case management or hearing of a proceeding or an application in a proceeding.

200 The 'ordinary and correct practice' to which Gleeson CJ, McHugh, Gummow and Hayne JJ referred in Ebner, one which involves disclosure and not evidence, is a practice which facilitates the efficient conduct of the business of the court, the efficient use of judicial and administrative resources and the just determination of the civil proceeding and the issues in that proceeding. It is also a practice which ensures that applications that a judge disqualify him or herself for bias are able to be dealt with expeditiously.[166]

201 Parties, legal practitioners, insurers and funders, including litigation funders, are bound by the overarching obligation in s 19 of the CPA to not take any step in connection with any claim in a civil proceeding unless the person reasonably believes that the step 'is necessary to facilitate the resolution or determination' of the proceeding. I interpret that obligation as applying also to the resolution or determination of an application such as the present.

202 In circumstances where it is for the judge to disclose the relevant facts and circumstances it is difficult to conceive of a situation where an issue of apparent bias having been raised with the judge in the manner described by Rothman J in Attorney-General of New South Wales v Bar - Mordecai, with the basis of the application being outlined to the judge in chambers,[167] that it would be 'necessary' for a party to take the step of issuing a subpoena pursuant to r 42A.

203 In this case the subpoena was issued after the 2 August 2024 mention without any further discussion in open court and without any discussion with the judge in his chambers. It was not until the hearing of this application that the three categories in Webb v The Queen proposed be relied on by the defendant in support of the substantive recusal application were articulated.

204 Both subpoenas were issued before any opportunity arose for the judge to make disclosure with knowledge both of an actual application and of the grounds proposed to be relied on. To issue a subpoena in those circumstances was premature. More importantly, to do so was inconsistent with the overarching obligations in ss 19 and 23 of the CPA.

205 The overarching obligations to facilitate the resolution or determination of disputes in s 19 and the overarching obligation to narrow the issues in dispute in s 23 requires parties and practitioners to inform the judge both of an application and also of the grounds to be relied on in respect of that application. As recently confirmed by Lee J in McKenzie v Cash Converters Int Ltd (No 3)[168] the correct manner for that to occur is in accordance with the practice and procedure described by Rothman J in Attorney-General of New South Wales v Bar - Mordecai.[169]

206 If the practice described by Rothman J in Attorney-General of New South Wales v Bar - Mordecai is adhered to, and a proposed application and the basis for it is foreshadowed to the judge, the disclosure by the judge that follows can reasonably be expected to obviate the need, and the justification, if it otherwise existed, for a subpoena to issue.

207 While in this case there has been a short mention hearing at which, without prior notice, a possible recusal application was foreshadowed but none was made, since the recusal application and the subpoenas were issued there has been no hearing before Watson J at which there has been an opportunity for his Honour to make the relevant disclosure.

208 The recusal application itself is yet to be heard and determined. The opportunity for the judge to make disclosure in accordance with conventional practice remains available.

209 If I am wrong and evidence is permitted, and the procedure in r 42A is available, then in any case, considering the subpoenas as a whole and by reference to their categories, both subpoenas must be set aside.

210 That is because the defendant has failed to demonstrate why the documents are relevant to the task to be performed by the judge through the eyes of the fair-minded reasonably informed lay observer. The defendant has failed to show that it is 'on the cards' that the documents will materially assist its case upon the application of the 'double might' test, whether based on association, conduct or extraneous information.

211 Before turning to the categories of documents of which production is sought it is appropriate to say something about the subpoenas as a whole.

212 Neither subpoena seeks the production of documents that are relevant to material objective facts to be taken into consideration by the fair-minded lay observer in relation to any of the three grounds proposed to be relied on. Neither subpoena seeks the production of documents that are potentially relevant in the sense of s 55 of the Evidence Act 2008 (Vic).

213 Rather than seeking the production of documents which it is 'on the cards' might constitute admissible evidence, both subpoenas are directed to the level of detail that a litigation lawyer, which the fair-minded lay observer is not, might 'want to see'. A desire by a litigation lawyer to see documents going to the detail of an association or of conduct in the form of public statements and the like does not make the documents relevant, or documents in respect of which there is a legitimate forensic purpose. Both subpoenas bear the hallmarks of a fishing expedition. A deep dive into the (sea)weeds.

214 Having regard to the grounds proposed to be relied on, association, conduct and extraneous information, and to the characteristics of and the matters taken into consideration by the fair-minded lay observer, both subpoenas lack a legitimate forensic purpose.

215 As held in Cargill, it is a requirement of r 42A that the documents sought to be produced 'will materially assist'.[170] Whether there is a reasonable possibility or whether it is 'on the cards' that any of the documents sought to be produced 'will materially assist' is to be viewed in light of the existing evidence in the Betts affidavit and exhibit. How is it that any of the categories of documents sought 'will materially assist' the observer beyond the matters already referred to in the Betts affidavit and exhibit?

216 The r 42A procedure is not a procedure to obtain discovery of documents. A 'fishing expedition' is not a legitimate forensic purpose of such a subpoena and will not be permitted. Where a party fails to demonstrate a legitimate forensic purpose, the court will refuse access to the documents and set aside the subpoena.

217 When in Austin BMI Pty Ltd v Deputy Premier Freeburn J said that 'all the circumstances, including the nature of the association, the frequency of contact, the nature of the interest of the associated person needs to be examined'[171] that statement needs to be read through the eyes of and by reference to what the non-lawyer, fair-minded lay observer would wish to 'examine'.

218 The association ground is based on an association between individuals, the judge and Mr Walker. Much of the subpoena is cast more broadly, directed to the law firm, Maurice Blackburn, and to the Walker Entities. The Betts affidavit describes Maurice Blackburn as a law practice with 33 permanent officers and approximately 1200 staff including 340 lawyers. The 'Walker Entities' as defined in the first period, 2005-2015, were ASX listed corporations.

219 Both subpoenas are directed to the production of documents in relation to 'the Relevant Actions'. The time period to which the 'Relevant Actions' definition has application spans 18 years, from 1 November 2005 until 12 November 2023.

220 'Relevant Actions' is defined to mean both actions actually commenced in which Maurice Blackburn acted that were funded and/or managed by Mr Walker and/or Walker Entities and 'Relevant Potential Actions' meaning actions proposed by Mr Watson or Maurice Blackburn to Mr Walker or the Walker Entities or the other way around.

221 The Betts affidavit refers to the judge joining the class action department of Maurice Blackburn in November 2004 and being appointed a principal of Maurice Blackburn in November 2005. In June 2011 the judge was appointed the head of class actions at Maurice Blackburn, a position he held until his appointment to the Supreme Court on 13 November 2023.

222 The 18 year period as defined by reference to three different Walker Entities comprises three time periods.

223 The first period is 1 November 2005 to 17 June 2015.

224 The Betts affidavit refers to Mr Walker having been an executive director of IMF, now called OMNI Bridgeway Limited, between 2001 and June 2015 and the managing director of IMF between December 2004 and June 2007. Although defined as the first of the 'Walker Entities' according to the Betts affidavit, between 2002 and 2015 Mr Walker held approximately 3-6% of the ordinary shares of IMF.

225 By reference to a table located within the exhibit to the Betts affidavit, the approximate percentage of share ownership by Mr Walker and his associated entities was 4.82% in 2005, peaked at 6.49% in 2007, was 5.80% in 2010 and reduced to 2.97% in 2015.

226 It is not immediately apparent from the shareholding table what part of the percentages specified might have been owned not by Mr Walker but by 'close family members' in respect of whom no 'association' with the judge is alleged. While the precise percentage is a level of detail too granular for the fair-minded lay observer, what the affidavit shows is that Mr Walker had a small shareholding in IMF when he was a director of that company, most recently, nine years ago.

227 The Betts affidavit includes a table described as listing 12 class actions run by Maurice Blackburn funded by IMF between 2005 and 2015. The table is derived from publicly available sources. While the duration of the cases listed in some instances extends beyond 2015 when Mr Walker ceased to be involved with IMF, the observer would know from the table that there were a large number of substantial class action cases run by Maurice Blackburn and funded by IMF during the first period.

228 The evidence in support of the subpoena objection filed by Maurice Blackburn refers to 22 rather than 12 IMF funded proceedings that fall within the definition of 'Relevant Commenced Actions' during the 10 year period to 2015.

229 From the Betts affidavit, the observer would know based on publicly available information that IMF was reported to have derived revenue of $160m from the 12 actions and Maurice Blackburn was reported to have derived fees of $111 million from the same 12 actions.

230 Leaving aside that the entities that derived the revenue were IMF and Maurice Blackburn and not the judge and Mr Walker, having regard to the number of cases and the amount of the reported revenues, I do not consider the observer would regard it as material whether during this period there were, in addition, another 10 actions (as referred to in the Milner Affidavit) or 'Relevant Potential Actions' no matter by whom within the definition in the subpoena those potential actions were proposed and no matter the extent of the investigation undertaken concerning such proposed actions.

231 Whether 12 or 22 actions the observer would consider the business association, not a personal business association between the judge and Mr Walker, but a business association during that 10 year period between IMF and Maurice Blackburn as a substantial one in relation to class action funding in respect of which substantial revenues were derived.

232 The category 2 documents sought in relation to the 2005-2015 period include what has been narrowed by the defendant to a single form of each of the costs agreements, funding, co-funding and/or litigation management agreements; law firm relationship agreements; and/or legal retainer agreements in relation to the Relevant Actions. These are not documents the terms of which are relevant to the application of the Ebner test by the fair-minded lay observer. The observer is not going to be concerned with the terms of such agreements. The terms of the agreements are not material and are not relevant.

233 The observer already knows from the Betts affidavit that IMF funded the 12 actions and assumed various costs risks in return for an anticipated percentage return. Taking a broadbrush view, agreements of the type referred to in the subpoena would be expected by the observer to have existed in relation to the various cases.

234 While the observer might be interested to know at a general level what involvement the judge had in various proceedings funded by IMF during this ten year period, the best person to provide that information is the judge himself. Documents relating to time billed or recorded by him in relation to actions funded by IMF is not the sort of detail that is relevant to or taken into account by the fair-minded lay observer. At its highest this information is 'litigation solicitor' type information - that is not the observer.

235 The Betts affidavit includes evidence that in 2008 IMF established a joint venture with interests associated with Maurice Blackburn in Ireland, Claims Funding International plc ('CFI'). In the 2007-2008 financial year CFI was yet to fund any matters. In the following year, IMF withdrew from the joint venture. The affidavit gives that evidence by reference to the 2008 and 2009 IMF annual reports.

236 The Betts affidavit refers to the role played by the judge in advising CFI, in 2023, by which time the business was owned by Maurice Blackburn. Based on the Betts affidavit the observer would proceed on the basis that if relevant to the individual association alleged, IMF had no ongoing involvement in CFI after 2009. If Watson J considers there is some materiality about business activities in or relating to Ireland those matters can be disclosed by his Honour.

237 The second period within the 'Walker Entities' definition is defined to mean Investor Claim Partner Pty Ltd ('ICP') between 22 March 2016 and 12 November 2023.

238 The Betts affidavit includes evidence that in 2016 Mr Walker established ICP of which he is currently the CEO and of which since 2016 he has been a director and secretary. 12,000 shares in ICP are held by Legal Precedents Pty Ltd in which Mr Walker and his wife each hold one share.

239 Mr Walker founded ICP to design, develop and manage shareholder claims. There are two other ICP companies referred to in the Betts affidavit, ICP Funding Pty Ltd and ICP Capital Pty Ltd (now deregistered).

240 From the Betts affidavit the fair-minded lay observer would know that since 2016, together with his wife, Mr Walker has been involved in ICP entities whose business involves funding and the provision of services relating to funding plaintiff class actions. The observer would know from the affidavit and exhibit that from 2016 ICP sought to identify shareholder claims and to work with plaintiff law firms in relation to such claims. The observer would know that ICP worked with various plaintiff law firms, including Maurice Blackburn in the seven-year period between 2016 and 2023.

241 From 2016 ICP Capital Pty Ltd funded one securities class action in which Maurice Blackburn acted for the lead plaintiff Basil v Bellamys Australia Ltd.[172] The Basil proceeding was the subject of a separate shareholder class action in which similar claims were made against it where Slater & Gordon acted for the lead plaintiff, referred to in the exhibit to the Betts affidavit as the McKay proceeding.

242 The McKay proceeding was funded by IMF Bentham Pty Ltd. Both the Basil and McKay proceeding were in the Federal Court of Australia. Settlement of both proceedings was approved by Beach J on 13 March 2020. On 8 April 2020 his Honour published his reasons for approval.[173] A copy of the approval reasons is included in the exhibit to the Betts affidavit.

243 The Betts affidavit includes an extract from an affidavit made 19 May 2017 by Mr Slade, at that time a principal of Maurice Blackburn in relation to the funding of the Basil proceeding by ICP. The Slade affidavit itself is included in the exhibit. The approval reasons refer to various affidavits by Mr Slade in support of approval.

244 The Betts affidavit does not assert any personal involvement of the judge in the Basil proceeding or any dealings between the judge and Mr Walker concerning that action. The Slade affidavit exhibited names of various persons at Maurice Blackburn involved in the conduct of the Basil proceeding. It does not refer to his Honour. Disclosure of any material matters concerning interaction between the judge and Mr Walker relating to the funding by ICP of the Basil proceeding can be attended to by his Honour in the usual way.

245 To seek to subpoena documents relating to 'Relevant Potential Actions' during the seven year period from 2016 involving ICP when there was only one action that got off the ground and that action was conducted by another principal of Maurice Blackburn, Mr Slade, is to go to the heart of the periphery. The fair-minded lay observer does not go there.

246 The fair-minded lay observer would not read, be or need to be aware of the contents of costs, funding, fee agreements, timesheets or other documents relating to the ICP funded Basil class action falling within the first subpoena. To permit a subpoena for the production of such documents or of documents relating to 'Other Relevant Potential Actions' during this period would be to permit the pursuit of an unwarranted fishing expedition of the type not allowed in Thomson v ANZ.

247 The third period, 19 October 2020 to 12 November 2023 concerns CASL. CASL is the Funder and the Manager of this proceeding. Matters concerning CASL are proposed to be relied on by the defendant at the substantive hearing in relation to the association and extraneous information grounds for recusal.

248 Since 19 October 2020 Mr Walker has been one of the two directors of CASL. Mr Walker is also a director of two subsidiary companies, being the Funder and the Manager. Company searches exhibited to the Betts affidavit show that through his shareholding in various entities Mr Walker holds approximately a 29% interest in CASL.

249 Taking a broad brush approach the fair-minded lay observer would regard CASL as approximately 30% owned by Mr Walker.

250 In May 2023 Maurice Blackburn commenced a shareholder class action on behalf of Mr and Mrs Lidgett against Downer EDI Limited (ACN 003 872 848) ('Downer EDI') in the Supreme Court of Victoria ('Lidgett proceeding'). At about the same time three separate proceedings were commenced in the Federal Court of Australia against Downer EDI. Pursuant to the 'Protocol for Communication and Cooperation between Supreme Court of Victoria and Federal Court of Australia in Class Action Proceedings',[174] the carriage dispute involving the four proceedings was jointly case managed by Halley J of the Federal Court and by me.

251 On 7 June 2023 we made orders directing that the representative plaintiffs/applicants exchange statements of position and confer with the aim of resolving the multiplicity/carriage dispute.

252 On 30 June 2023 three of the represented parties, including the Lidgetts, informed both Courts that an in principle agreement had been reached to consolidate those proceedings and that two of the three Federal Court proceedings would seek transfer to the Supreme Court to effect the consolidation. The remaining proceeding of which Kajula Pty Ltd was the lead plaintiff ('the Kajula proceeding'), did not agree to consolidation, but also sought transfer to the Supreme Court.

253 It was agreed that Maurice Blackburn would act as solicitor on the record in the consolidated proceeding. Prior to consolidation Maurice Blackburn funded the Lidgett proceeding. One of the other proceedings agreed to be consolidated was previously funded or agreed to be funded by CASL.

254 On 28 August 2023 I heard the multiplicity/carriage dispute between the Kajula proceeding and the consolidated proceeding, including the Lidgett proceeding. On 27 September 2023 I delivered my reasons.[175] That decision was later the subject of an appeal.[176]

255 Between 31 July 2023 and 25 August 2023, in his capacity as a principal of Maurice Blackburn, the judge made a series of affidavits in support of the consolidated parties' position in the carriage dispute. The judge made those affidavits as head of Maurice Blackburn's national class action practice. His affidavits described him as a director of Claims Funding Australia Pty Ltd, a litigation funder wholly owned by Maurice Blackburn which provides funding in matters in which lawyers other than Maurice Blackburn act for the funded litigants. The judge's affidavits described him as the person with 'senior oversight' of the Lidgett proceeding on behalf of the plaintiffs. Another principal of Maurice Blackburn, Mr Schimmel was described as the person having the day to day care and conduct of the Lidgett proceeding.

256 An extract from the judge's 25 August 2023 affidavit forms part of the Betts affidavit and copies of two further affidavits made by the judge are included in the exhibit to the Betts affidavit.

257 In his 31 July 2023 affidavit the judge gave evidence that between November 2004 and July 2023 he had conducted, assisted in or supervised approximately 75 representative (class action) proceedings on behalf of plaintiffs or applicants. He also said:

I am also closely familiar with, and regularly involved in, decision making and financial modelling in relation to MB's class action portfolio and CFA's litigation funding portfolio, including the range of commercial, financial, strategic and other considerations involved in selecting, prosecuting and settling group proceedings.

258 In his 21 August affidavit the judge gave evidence that it was proposed the conduct of the consolidated proceeding would be managed by Maurice Blackburn and CASL in accordance with various agreements. He said:

As to role of the funder CASL, John Walker has been involved in funding class actions in Australia for more than 20 years, including when he worked at the litigation funder now known as Omni Bridgeway. Mr Schimmel and I (and others at MB) have worked with him on a number of class actions over the past 20 years. I am confident that his experience in class actions, including consolidated proceedings, will mean that MB and CASL will have a good working relationship in this case.

259 In his 25 August 2023 affidavit, the judge gave evidence that agreement was reached to the joint funding of the consolidated proceeding including on the basis that CASL and Maurice Blackburn would each contribute to the funding of disbursements with CASL paying 65% and Maurice Blackburn paying 35%. In addition, Maurice Blackburn and CASL would each pay half the premium for a policy of insurance policy for adverse costs.

260 The affidavits made by the judge when he was a principal at Maurice Blackburn exhibited to the Betts affidavit do not refer to communications between the judge and Mr Walker or to any involvement by the judge with Mr Walker in negotiations concerning the consolidation or the funding arrangements for the conduct of the consolidated proceedings. There was no occasion for the affidavits to disclose or deal with such matters.

261 If disclosure is appropriate having regard to the authorities, including for example disclosure of whether there were direct communications between the judge and Mr Walker in connection with or concerning funding or consolidation of the Lidgett proceeding or the consolidated proceeding, those matters can be the subject of disclosure by the judge in accordance with the usual practice. Beyond those matters, I do not consider the observer would delve.

262 It is not relevant and nor is it material to the fair-minded lay observer to be aware of or to take into account various costs and funding agreements concerning the Downer EDI litigation. If it were relevant for the observer to do so, publicly available redacted copies of the agreements already form part of the exhibit to the Betts affidavit. To the extent the agreements are redacted those parts that are redacted are likely to remain commercially sensitive in light of the ongoing nature of the Downer EDI litigation.

263 The observer will not be interested in copies of documents redacted for commercial sensitivity. Nor will the observer be interested in documents redacted for legal professional privilege as would inevitably be the case if timesheet entries were required to be produced on subpoena .

264 The observer does not spend hours and days pouring over timesheets in order to apply the Ebner test. The observer is not aware of and does not take into account time entries of the judge when he was at Maurice Blackburn in relation to this third time period or the Downer EDI litigation when deciding whether the judge should disqualify himself for apparent bias on either of the two bases for which the Downer EDI litigation is said to be relevant.

265 To the extent documents or information may have come to the judge's attention when he was at Maurice Blackburn that would constitute 'special information' relating to CASL, and any such matters as his Honour considers relevant can be disclosed by his Honour.

266 The further category of documents sought by the first subpoena relates to the group known as 'Keep Corporations Honest'. Given the large volume of material exhibited and the matters dealt with in section K of the Betts affidavit, such other documents or communications as might exist in relation that group in the period between 1 January 2020 and 12 November 2023 could not be said to materially assist the defendant to establish its case for recusal based on conduct.

267 As a separate matter, the costs of compliance with the subpoenas need to be viewed in the context of the existing affidavit evidence. That is, to determine whether the costs are reasonable and proportionate to the recusal application.

268 Looking at the two subpoenas in light of the extensive evidence in the Betts affidavit and exhibit and the further factual matters concerning past actions in the Milner affidavit, what would be required to comply with the subpoenas as later narrowed by the defendant is not consistent with the overarching obligation in s 24 of the CPA. Namely, the obligation to keep costs reasonable and proportionate.

269 Section C of the Milner affidavit details work needed and difficulties confronting Maurice Blackburn in ensuring compliance with the subpoenas. Mr Milner and Mr Donelly of Maurice Blackburn estimate it would take at least 4-6 weeks to comply with the subpoenas at a cost in excess of $100,000. That is, to locate and review for legal professional privilege as needed, documents which in my assessment are not material. It is inconsistent with s 24 of the CPA and with the need to determine applications for recusal expeditiously that the subpoenas should be permitted to stand.

270 It remains to say a little about the particular document categories in the two subpoenas.

271 The defendant submits the 'agreements' and the 'request for tender' ('RFTs') and 'tenders' in category 3 will materially assist the Court to resolve the nature, duration and terms of the business relationship between the judge and Mr Walker. In particular, the agreements will enable the Court to examine the terms on which class actions were pursued as part of that business relationship, including terms as to the contingent upside remuneration or returns, and terms as to the sharing of downside financial risks.

272 The defendant submits that although an association between entities, the inference of association between persons can be made good by reference to potential actions investigated and commenced by those under the individuals and at their direction. As head of the class actions practice group at Maurice Blackburn, the judge was closely familiar with and regularly involved in decision-making and financial modelling in relation to the class actions portfolio. The documents in question could rationally affect the assessment or probability of a fact in issue. It was submitted the number of potential relevant actions considered, whether 5, 10, 30, 50 or 60, would be relevant to the nature of the association, the frequency of contact and the duration of the association.

273 Maurice Blackburn submit that as drafted category 3 is so wide as to capture tenders or proposals from funders other than those associated with Mr Walker. On no view could such documents be relevant. To the extent a tender or proposal progressed into a formal agreement to conduct a proceeding, those agreements would be caught by category 2.

274 I do not accept the submission that the RFTs and tenders in relation to potential actions not commenced will materially assist the Court to determine the nature of the relationship between the individuals, the judge and Mr Walker. To seek the production of such documents on subpoena is to do nothing more than to seek to embark on a fishing expedition.

275 The agreements and documents referred to are not agreements or documents relating to or evidencing a business relationship between the individuals in respect of whom the association is alleged. They are remote from the individuals. The terms of the most recent sharing of remuneration and returns with CASL in the Downer EDI litigation are known.

276 Following service of the Milner affidavit the defendant now seeks disclosure of the names of the nine actions commenced prior to June 2015 of which it was previously unaware. I do not agree the names of the actions are relevant. The defendant contends that it seeks these documents to enable the bystander and the Court to understand the fees generated through those actions, the revenues derived by the litigation funder and the duration of those actions. The observer is aware of the magnitude of the revenues derived from the 12 actions referred to in the Betts affidavit. Details of revenue derived from the additional actions is not material in addition to what is known.

277 The percentage remuneration typically required by litigation funders over the period covered by the first subpoena is publicly available information that has been the subject of a number of publications, including those by Professor Vince Morabito referenced in the Betts affidavit. The production of the particular agreements would not materially add to the information already contained in the affidavit evidence including the table at paragraph 74 of the Betts affidavit.

278 To the extent the category 3 documents pre-date agreements for the conduct of proceedings later entered into the documents are remote and not material to issues to be determined on the recusal application.

279 It is difficult to understand how preliminary interaction between Maurice Blackburn and the Walker Entities in relation to historic potential actions, not ultimately commenced, could be relevant to the reasonable observer considering whether the judge might be diverted from deciding this proceeding on its merits. It is to be remembered that the evidence in the Betts affidavit and exhibits establishes that the Walker Entities dealt with a variety of plaintiff law firms of which Maurice Blackburn was one. The fact there might have been interaction between Maurice Blackburn and one of those entities in relation to a proposed action is not of assistance when the fair-minded lay observer is called upon to evaluate the association between individuals relied on by the defendant in this case. It is not a legitimate use of a subpoena to have specified documents produced in a 'speculative attempt' to identify whether the documents might ultimately be of some evidential value.

280 I do not agree that the category 3 documents are relevant in the sense that it is 'on the cards' or that there is a reasonable possibility that if produced, the documents would constitute evidence that would materially assist the defendant's application for recusal. I am not satisfied that a legitimate forensic purpose would be served by the production of this category of documents.

281 The defendant now seeks production of a single form only of each of the category 2(a), 2(b) and 2(d) documents. It submitted there should not be many documents in category 2(c).

282 The precise terms of agreements and documents in category 2(a)-2(d) are not matters with which the fair-minded lay observer would be concerned. If provided on subpoena they would perhaps reveal details in addition to those already referred to in the Betts affidavit and exhibit. However to the extent they might provide information they would provide information at a level of detail beyond that considered by the fair-minded lay observer. The detail sought is not material to the proper identification of the nature of the association, the frequency of contact and the nature of the interest of the person associated with the decision-maker.

283 The defendant submits the production of the agreements and the RFTs and tenders will have the effect of comprehensively identifying the 'Relevant Actions', thereby, materially assisting the Court to resolve not only the commercial terms and nature of the business relationship, but also its duration, scope and scale. As submitted by Maurice Blackburn it is not apparent how there is a reasonable possibility that the contractual detail of all anterior proceedings which stretch back over nearly two decades would materially assist the defendant to establish how the association between the two individuals who it is not suggested contracted with one another personally, might divert Watson J from deciding this proceeding on the merits.

284 The observer will already be aware from the Betts and Milner affidavits of the business relationship between Maurice Blackburn of which the judge was a principal and various litigation funding organisations where Mr Walker held various roles and financial interests over many 18 years.

285 Responding to Maurice Blackburn's argument that it would be oppressive to require compliance with the subpoena, the defendant submits the time period set out in the definitions of 'Relevant Commenced Actions' and 'Relevant Potential Actions' is appropriate and directly reflects the duration of the business relationship upon which it relies. I do not agree. As highlighted by the Australian Institute of Judicial Administration, the more remote in time the association, the less likely the fair-minded lay observer will regard the association as one requiring recusal.[177]

286 The first period, 2005-2015, ended nine years ago. Compliance with the first subpoena will be time consuming and costly. When determining whether or not to require compliance with the subpoenas would be oppressive it is important to have regard to the Court's obligation in the CPA to further the overarching purpose and also the obligation on parties and practitioners to ensure costs are reasonable and proportionate. Taking those statutory imperatives into account together with the importance of the currency of the association when applying the Ebner test, it is not an answer to the subpoena being oppressive to say that the time period is a lengthy one.

Category 4 of the first subpoena (summaries of time billed)

287 The defendant submits that having regard to the evidence that Maurice Blackburn has not identified the existence of any documents or reports on its current time recording platform responsive to the terms of category 4; and, given that Maurice Blackburn has foreshadowed confidentiality claims in respect of cost consultant reports, it has sought to streamline and simplify the process of gathering the category 4 information by filing the second subpoena.

288 To the extent category 4 is still pressed I reject the defendant's submission that the number of hours worked by the judge on each of the relevant actions, say, two hours per day on 21 actions, 50,000 hours of time, is relevant to a proper understanding of the material objective facts concerning the frequency, duration, scale and nature of the interactions and the association between the judge and Mr Walker.

Category 5 of the first subpoena (time billing records)

289 The defendant narrowed category 5 documents to read: 'Documents recording and/or summarising billed or recorded time entries made by Mr Andrew John Watson in any of the Relevant Actions insofar as those time entries refer to Mr John Walker and/or CASL'.

290 The defendant submits the time entry records over approximately 20 years will materially assist the Court to examine the frequency and intensity of the personal contact between the judge and Mr Walker and the Walker Entities. While the defendant expects the narrations in the time entry records may be subject to claims for legal professional privilege, it submits the dates and extent of the time entries will nevertheless materially assist in further clarifying the frequency of contact and the extent of the relationship.

291 The defendant submits that records of unbilled time by Maurice Blackburn would reveal interaction in the conduct of a joint endeavour to investigate and prosecute actions determined worthy at a time when the judge and Mr Walker were at the apex of their organisations with oversight of such matters.

292 The plaintiff submits the fair-minded lay observer does not have 'inside knowledge' of the specific relationship between the judge and Walker Entities. It submits there is no need to prove the observer's 'knowledge of the matter beyond knowledge of the relationship which subsists' as 'the question is not whether the tribunal will in fact be biased, but whether a reasonable man with no inside knowledge might well think that it might be biased'.[178] This is because the fair-minded lay observer is concerned with appearance rather than reality.

293 Maurice Blackburn submit these categories are premised on the proposition the reasonable observer would, relevantly, have regard to the amount of time that the judge worked on cases that were funded by Walker Entities in determining whether his Honour might not be able to decide this case impartially. It submits that it is not apparent how the amount of time the judge spent on such matters, the vast majority of which date back over a decade, could rationally affect the Court's assessment of apprehended bias in this proceeding.

294 I do not agree with the defendant that this category of documents is relevant. The fair-minded lay observer will not be concerned to probe records of unbilled time, particularly when the observer is aware of very substantial billed time on actual matters underpinning significant revenues including those in the table at paragraph 74 of the Betts affidavit. Records of unbilled time are not material and would not be admissible in support of the defendant's recusal application. No legitimate forensic purpose is served by requiring the production of such documents on subpoena.

295 The detail of billed time, time entries concerning matters actually pursued is detail to which the observer would not descend. Time billing records the subject of category 5 are not relevant to the application by the judge of the test in Ebner standing in the shoes of the fair-minded lay observer.

296 Separately Maurice Blackburn submits the Milner Affidavit establishes that:

(a) the platform used for time recording analysis and reports - Qlik Sense - does not appear to have all time entries from before 2018;

(b) Maurice Blackburn has not identified any documents or reports on Qlik Sense which are responsive to category 4, which would mean that further searches for the 'Relevant Commenced Actions' would be necessary, including on the relevant iManage matter file;

(c) while it may be possible for Maurice Blackburn to export the judge's individual time records for the purpose of searching for entries caught by category 5, there are 52,000 time entries belonging to the judge that would require exporting and searching; and

(d) Maurice Blackburn would also need to undertake searches of iManage files for the purpose of responding to category 5, which may involve the consideration of privilege claims.

297 Having regard to these matters I also consider that it would be oppressive and contrary to s 24 of the CPA to require production of the time billing records.

Category 6 of the first subpoena (2020 - 2023 communications)

298 The defendant does not press sub-category 6(d). It continues to sub-categories 6(a)-(c). It submits the communications referred to in 6(a) will materially assist in resolving the judge and Mr Walker's association and involvement with the 'Keep Corporations Honest' campaign. It submits the communications referred to in sub-categories 6(b) and 6(c) will materially assist in clarifying contact that was not the subject of billed or recorded time entries and as such not captured by category 5 or the second subpoena.

299 The plaintiff submits this category seeks documents evidencing direct communications between the judge and Mr Walker; CASL; or 'ICP' (being three funding entities associated with Mr Walker), in connection with a lobbying group 'Keep Corporations Honest', any commenced or investigated proceeding funded or proposed to be funded by Walker Entities (including Lidgett v Downer EDI Limited, S ECI 2023 01835, which is currently on foot) and any unspecified 'commercial or other relationship' between Maurice Blackburn and Mr Walker, CASL or ICP. The plaintiff submits this is a fishing expedition and that the documents will not materially assist the Court in respect of any issue arising for determination.

300 Maurice Blackburn submits category 6 is akin to a discovery category:

(a) ...Given the nature of the communications it seeks, each responsive email would need to be reviewed for privilege. The burden of the category is substantial because it is not confined to communications between the judge and Mr Walker, but extends to communications between the judge and CASL and ICP, which involves communications with any representative of those entities in relation to the matters referred to at subparagraphs 6(a) to (d).

(b) The 'between' language is also apt to pick up emails sent by those representatives (or Mr Walker) which were not addressed to the judge but to which he was were copied.

(c) Against that background, the forensic purpose is to be weighed. The Betts affidavit already contains extensive evidence about the involvement of the judge and Mr Walker in the 'Keep Corporations Honest' group and the Downer EDI litigation. It is not apparent why it is relevant for the fair-minded observer to know anything about specific, private communications between The judge and Mr Walker, or between the judge and representatives of CASL and/or ICP, in order to assess whether the fact of a business relationship between the individuals, the judge and Mr Walker might possibly divert the judge from deciding this proceeding on the merits.

(d) It is plain that by category 6 the defendant is seeking to obtain documents to see whether they are relevant, which is impermissible.

301 The 'Keep the Corporations Honest' group is the subject of extensive evidence in section K of the Betts affidavit and the exhibit. The fair-minded lay observer is not engaged in an exhaustive search for detail. Given the existing evidence I do not consider it is 'on the cards' that documents in category 6(a) might materially assist the defendant to make out its recusal application.

302 Concerning category 6(b), documents relating to the Downer EDI litigation are likely to be privileged and/or commercially sensitive. The latter is relevant when it is the defendant who is seeking the production of such documents. There is one sub-category within the description in 6(b) that may be relevant and material, even if redacted. That is, documents comprising communications, or recording or evidencing communications between the judge and Mr Walker personally concerning the Downer EDI litigation. On the assumption (contrary to my earlier findings) that evidence is admissible and a subpoena is permissible on an application such as the present, such communications may be relevant and material to the observer, for example, if extensive communications took place in recent times between the individuals concerned. Otherwise, I do not consider a legitimate forensic purpose is made out concerning the documents in category 6(b).

303 Concerning category 6(c), there is no evidence there were any other 'Relevant Actions' in the period of 1 January 2020-12 November 2023, beyond the Downer EDI litigation. There is no basis to suppose documents in category 6(c) exist. If there were communications between the judge and Mr Walker relating to such Relevant Actions, if material to the application the judge will be in a position to make disclosure.

304 On its face, the second subpoena suffers from similar vices to those earlier identified concerning category 5 of the first subpoena. It calls for production of 'Maurice Blackburn invoices in relation to the Relevant Actions which contain time entries of Mr Andrew John Watson'.

305 The defendant submits the invoices will materially assist the Court to properly examine the judge's personal involvement in the Relevant Actions and to determine his closeness, involvement, and direct association with those matters that were funded, managed or the subject of instructions by Mr Walker or the Walker Entities. Although the defendant expects that the narrations in the invoices may be the subject of claims for legal professional privilege, it submits that other specified details in the invoices will materially assist in clarifying the judge's involvement in the Relevant Actions and thus establish the extent of the relationship.

306 The defendant's submission exposes the vice of the second subpoena. The application through the eyes of the fair-minded lay observer of the test in Ebner does not call for a Royal Commission. What the observer requires is knowledge of the material objective facts. Enough information to inform himself or herself to the extent necessary to make a fair judgement. How one might ask rhetorically might any of the information that might be gleaned on production pursuant to the second subpoena be likely to be material evidence on a recusal application.

307 The information contained in the documents sought to be produced whether before or after redaction for legal professional privilege is not information that falls within the broad knowledge of the facts taken into consideration by the observer.

308 For the reasons discussed, both subpoenas are set aside.

309 I will order the defendant pay the plaintiff and Maurice Blackburn's costs of the two subpoenas and the dispute concerning them including the costs of the hearing and submissions on a standard basis.

[1] [2024] VSC 120 [12] ('Warwryk v Mercedes-Benz'), citing Melbourne City Investments v Myer Holdings Ltd [2016] VSC 239 [44(d)] (Derham AsJ).

[2] [2016] VSC 573 ('Volunteer Fire Brigade') [57]-[61].

[3] Warwryk v Mercedes-Benz Australia/Pacific Pty Ltd (subpoena ruling) [2024] VSC 120.

[4] [2015] VSC 153 [55]-[56] (citations omitted) ('Webb v Wheatley').

[5] [2018] VSC 798 [27] ('Cargill').

[6] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 19) [2018] VSC 798 [28].

[7] Civil Procedure Act 2010 (Vic) s 7(1).

[8] Civil Procedure Act 2010 (Vic) s 10(1).

[9] [2000] HCA 63; (2000) 205 CLR 337 ('Ebner').

[10] [2023] HCA 15; (2023) 409 ALR 65, 77 [37] (citations omitted) ('QYFM').

[11] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 345 [8]. See also Polsen v Harrison [2021] NSWCA 23 [44].

[12] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65, 77 [38].

[13] [2015] HCA 20; (2015) 255 CLR 135, 146 [20] ('Isbester').

[14] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65, 83-84 [68]-[71] (citations omitted).

[15] [1983] HCA 17; (1983) 151 CLR 288, 293 [7] (Mason, Murphy, Brennan, Deane and Dawson JJ).

[16] Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225, 233 [36] (McHugh, Kirby and Callinan JJ), see also R v Watson; ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, 262 and British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283, 305 [45] (French CJ), 313-314 [71] (Gummow J).

[17] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65, 121 [216] (citations omitted).

[18] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65, 136 [277]-[278] (citations omitted).

[19] [1994] HCA 30; (1994) 181 CLR 41, 74 ('Webb v The Queen') (citations omitted).

[20] The Australasian Institute of Judicial Administration Inc, Guide to Judicial Conduct (3rd ed, December 2023) 9 ('Guide to Judicial Conduct').

[21] Australian Law Reform Commission, 'Without Fear or Favour: Judicial Impartiality and the Law on Bias' _ - ALRC Report 138_ (Report, 6 December 2021) 94-95 [3.38].

[22] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 350 [30].

[23] Australian Law Reform Commission, 'Without Fear or Favour: Judicial Impartiality and the Law on Bias' _ - ALRC Report 138_ (Report, 6 December 2021) ('ALRC Report') 96 [3.42].

[24] [1999] EWCA Civ 3004; [2000] QB 451, 480 [25].

[25] [1999] EWCA Civ 3004; [2000] 1 All ER 65, 78.

[26] Polsen v Harrison [2021] NSWCA 23 [46].

[27] [2001] VSCA 248; (2001) 4 VR 501.

[28] Kajula Pty Ltd v Downer EDI [2024] VSCA 236; Lidgett v Downer EDI Ltd [2023] VSC 574, [9]-[12], [85] ('Downer EDI litigation').

[29] CUR24 v Director of Public Prosecutions [2012] NSWCA 65; (2012) 83 NSWLR 385 [39], [42]-[45] (Meagher JA).

[30] (No 9) [1990] NSWSCA 154 ('Raybos').

[31] [1999] 2 VR 572 ('Clenae').

[32] (No 9) [1990] NSWSCA 154 [21].

[33] Clenae Pty Ltd v Australia & New Zealand Banking Group Ltd [1999] 2 VR 572 577 [9].

[34] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 350 [30].

[35] [2002] HCA 51; (2002) 210 CLR 438 ('Hot Holdings') [74].

[36] Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 [74].

[37] D_ik v Director of Professional Services Review_ [2024] FCA 370 (Raper J); Owners Corporation Plan No Rp 015268 v Yarra City Council (Appeal) [2023] VSC 778 (Gray J); HBMH v Commonwealth of Australia (No 2) [2024] FCA 8 (Feutrill J); Gabriel v Grech (No 4) [2020] NSWSC 726 (Adamson J); Greenwood v Winsor and Anor [2008] QSC 68 (Byrne SJA).

[39] [2021] NSWCA 23 [46] (citations omitted).

[40] Hannam v Bradford Corporation [1970] 1 WLR 937, 949 (Cross LJ) cited in Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288.

[41] British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109 [85] cited in Kostov v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 94 [38] (Bell P).

[42] Webb v the Queen [1994] HCA 30; (1994) 181 CLR 41, 51-52 (Mason CJ and McHugh J), 57 (Brennan J), 67-68 (Deane J), 87-88 (Toohey J).

[43] Webb v the Queen [1994] HCA 30; (1994) 181 CLR 41, 73-74 (Deane J) (citations omitted).

[44] Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 9] [1990] NSWCA 154 [21].

[45] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65, 84 [71] (Gordon J) (citations omitted), see also [197] (Steward J).

[46] [2006] HCA 55; (2006) 229 CLR 577, 635 [177].

[47] AJH Lawyers Pty Ltd v Careri [2011] VSCA 425; (2011) 34 VR 236 [23] (Warren CJ, Hanson JA and Armond AJA); see also Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 99, (2024) 304 FCR 370 [37] (Banks-Smith, Jackson and Feutrill JJ).

[48] Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577, 634-635 [173]-[175] (Callinan J).

[49] Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 9] [1990] NSWCA 154 [21].

[50] Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 9] [1990] NSWCA 154 [21].

[51] [1999] VSCA 193 [47].

[52] [2024] QCA 073 [95].

[53] [2000] HCA 48; (2000) 201 CLR 488 ('Johnson v Johnson').

[54] [2011] HCA 2; (2011) 242 CLR 283, 305-306 [46] ('British American Tobacco') (citations omitted).

[55] British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283, 306 [46] (citations omitted).

[56] British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283, 306 [46]-[47].

[57] Webb v the Queen [1994] HCA 30; (1994) 181 CLR 41, 52 (Mason CJ and McHugh J).

[58] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 691 [185].

[59] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 361 [74].

[60] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 361 [74].

[61] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65, 88-89 [88] (Gordon J).

[62] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65, 75-76 [30] (Kiefel CJ and Gageler J) citing Mason, 'Judicial Disqualification for Bias or Apprehended Bias and the Problem of Appellate Review' (1998) 1 Constitutional Law & Policy Review 21, 24.

[63] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65, 97 [123] (Edelman J) citing Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 361, [74] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[64] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65, 94 [110].

[65] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65, 93 [108], 97 [123].

[66] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65, 97 [124].

[67] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65, 98 [127].

[68] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65, 88 [88]; citing Barton v Walker [1979] 2 NSWLR 740, 749.

[69] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 360 [69] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[70] [2002] EWCA Civ 90; [2003] QB 528, 548 [64].

[71] [1989] NTCA 5; (1989) 65 NTR 19, 28. See also Eastman v Somes (No 2) (1992) 107 FLR 86; Day v Humphrey [2019] QSC 38; Makucha v Sydney Water Corporation [1022] NSWCA 234.

[72] Australian Law Reform Commission, 'Without Fear or Favour: Judicial Impartiality and the Law on Bias' _ - ALRC Report 138_ (Report, 6 December 2021) 214 [6.89].

[73] Re Council of the City of Sydney (No 3) [2021] NSWSC 1423 [14].

[74] [2009] NSWSC 117 [3]-[7].

[75] [2019] FCA 10 [6].

[76] John Tarrant, Disqualification for Bias (Federation Press, 2012), 68-69 and authorities cited within.

[77] Australian Law Reform Commission, 'Without Fear or Favour: Judicial Impartiality and the Law on Bias' _ - ALRC Report 138_ (Report, 6 December 2021) 176 [5.161]-[5.163].

[78] [2012] VSCA 291 [22].

[79] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 397 [185].

[80] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65, 76 [32].

[81] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65, 92 [104].

[82] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65, 147 [328], 150 [340].

[83] Day v Humphrey [2019] QSC 38.

[84] [2011] NSWCA 234, [7]-[9]. See also Locabail (UK) Ltd v Bayfield Properties Ltd [1999] EWCA Civ 3004; [2000] 1 All ER 65; [2000] QB 451, 76, [19].

[85] [2008] UKHL 62; [2008] 1 WLR 2416 [39].

[86] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65, 146 [321].

[87] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65, 98 [128], 99 [131], 101 [139].

[88] Australian Law Reform Commission, 'Without Fear or Favour: Judicial Impartiality and the Law on Bias' _ - ALRC Report 138_ (Report, 6 December 2021) 221 [6.114].

[89] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 380 [137].

[90] (1992) 26 NSWLR 411, 437 ('Australian National Industries').

[91] [1979] 2 NSWLR 740.

[92] [1979] 2 NSWLR 740, 742.

[93] [1979] 2 NSWLR 740, 759.

[94] [1979] 2 NSWLR 740, 750. Barton v Walker was not followed in Maules Creek Coal Pty Ltd v Environment Protection Authority [2023] NSW CCA 275 but not in relation to this issue or in respect of these observations. Referring to these observations at [52]-[55] the Court of Appeal said 'His Honour's concerns about how appeal benches are to deal with disqualification applications might be thought prescient, incidentally, in light of the different views expressed on that issue in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419; [2023] HCA 15.

[95] [2018] FCA 1270 [2].

[96] [2018] FCA 1270 [2].

[97] [2000] NSWCA 368.

[98] [1976] 1 NSWLR 230 ('Zanatta').

[99] Zanatta v Cleary [1976] 1 NSWLR 230, 239.

[100] Lawrie v Lawler [2015] NTSC 40.

[101] Lawrie v Lawler [2015] NTSC 40 [2].

[102] Lawrie v Lawler [2015] NTSC 40 [23].

[103] Lawrie v Lawler [2015] NTSC 40 [5].

[104] Lawrie v Lawler [2015] NTSC 40 [186]-[187].

[105] Lawrie v Lawler [2016] NTCA 03.

[106] Lawrie v Lawler [2016] NTCA 03 [97].

[107] [2023] NSWLEC 94 [30].

[108] [2023] NSWLEC 94.

[109] [2004] VSCA 95 [58], [77], [81] (Vincent JA).

[110] [2004] VSCA 95, appendix.

[111] [1986] NSWCA 1, 7.

[112] Rajski v Scitec Corp Pty Ltd [1986] NSWCA 1, 24-25.

[113] [2016] NSWCA 88; (2016) 332 ALR 128.

[114] Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128, 131 [8] (Basten JA).

[115] Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128, 157 [157] (Basten JA).

[116] Dovade Pty Ltd v Westpac Banking Corporation [1998] NSWCA 70 ('Dovade').

[117] Dovade Pty Ltd v Westpac Banking Corporation [1998] NSWCA 70 (Mason P).

[118] Dovade Pty Ltd v Westpac Banking Corporation [1998] NSWCA 70, 1 (Mason P).

[119] Dovade Pty Ltd & Ors v Westpac Banking Corporation & Anor [1998] NSWCA 71, 9.

[120] [2012] NSWCA 65; (2012) 83 NSWLR 385.

[121] CUR24 v Director of Public Prosecutions [2012] NSWCA 65; (2012) 83 NSWLR 385 [28] (Meagher JA).

[122] CUR24 v Director of Public Prosecutions [2012] NSWCA 65; (2012) 83 NSWLR 385 [54] (Meagher JA).

[123] CUR24 v Director of Public Prosecutions [2012] NSWCA 65; (2012) 83 NSWLR 385 [16] (Basten JA).

[124] CUR24 v Director of Public Prosecutions [2012] NSWCA 65; (2012) 83 NSWLR 385 [9] (Basten JA).

[125] CUR24 v Director of Public Prosecutions [2012] NSWCA 65; (2012) 83 NSWLR 385 [13] (Basten JA).

[126] CUR24 v Director of Public Prosecutions [2012] NSWCA 65; (2012) 83 NSWLR 385 [41] (Meagher JA).

[127] CUR24 v Director of Public Prosecutions [2012] NSWCA 65; (2012) 83 NSWLR 385 [41] (Meagher JA).

[128] [2015] FCAFC 152 [19].

[129] [2016] FCA 961 [19]-[21].

[130] [2020] FCAFC 162 [120].

[131] [2021] HCA 29; (2021) 273 CLR 289.

[132] [2019] FamCAFC 2.

[133] [2019] FamCAFC 2.

[134] [2019] FamCAFC 2 [11].

[135] [2019] FamCAFC 2 [38]-[39].

[136] [2019] FamCAFC 2 [46].

[137] [2017] NSWCA 183 [46], [50] ('Quach').

[138] [2017] NSWCA 267 [37], [43].

[139] (1979) 2 NSWLR 740 [749].

[140] Australian National Industries v Spedley Securities (1992) 26 NSWLR 411; Barton v Walker [1979] 2 NSWLR 740; see also DOQ17 v Australian Financial Security Authority (No 2) [2018] FCA 1270 [2].

[141] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [74] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[142] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [114] (Gageler J).

[143] Re Council of the City of Sydney (No 3) [2021] NSWSC 1423 [14].

[144] Polsen v Harrison [2021] NSWCA 23 [46].

[145] _QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affair_s [2023] HCA 15 (Edelman J) [124] citing Southwestern Bell Telephone Company v Federal Communications Commission [1998] USCA8 614; [1998] 153 F3d 520, 521.

[146] Limbo v Little [1989] NTCA 5; (1989) 65 NTR 19, 28.

[147] _QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affair_s [2023] HCA 15 [321] (Jagot J), see also Australian National Industries v Spedley Securities (1992) 26 NSWLR 411, 436 (Mahoney JA).

[148] _QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affair_s [2023] HCA 15 (Kiefel CJ and Gageler J) [32].

[149] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65, 75-76 [30] (Kiefel CJ and Gageler J) citing Sir Anthony Mason, 'Judicial Disqualification for Bias or Apprehended Bias and the Problem of Appellate Review' (1998) 1 Constitutional Law & Policy Review 21, 24.

[150] Barton v Walker [1979] 2 NSWLR 740 [749] (Samuels JA).

[151] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65, 146 [321] (Jagot J) citing Locabail (UK) Ltd v Bayfield Properties Ltd [1999] EWCA Civ 3004; [2000] 1 All ER 65; [2000] QB 451, 76 [19].

[152] Australian National Industries v Spedley Securities (1992) 26 NSWLR 411; Barton v Walker [1979] 2 NSWLR 740.

[153] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65, 99 [131] (Edelman J).

[154] British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283, 462 [126] (French CJ).

[155] Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 9] [1990] NSWCA 154 [21] (Kirby P).

[156] Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 9] [1990] NSWCA 154 [21] (Kirby P).

[157] Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 9] [1990] NSWCA 154 [21] (Kirby P).

[158] Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 [177].

[159] British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283 [47] (French CJ).

[160] DOQ17 v Australian Financial Security Authority (No 2) [2018] FCA 1270, 683; CUR24 v Director of Public Prosecutions [2012] NSWCA 65; (2012) 83 NSWLR 385

[161] Australian National Industries v Spedley Securities (1992) 26 NSWLR 411 [436] (Mahoney JA). See for example the facts in Lawrie v Lawler [2015] NTSC 40 and the observations on appeal by Doyle and Duggan JJ.

[162] Thomson v ANZ Banking Group Ltd [2024] QCA 073, 95.

[163] [2015] FCAFC 152 [41].

[164] Belsart Pty Ltd v Man Po Holdings (Australia) Ltd [1998] VSC 46.

[165] Civil Procedure Act 2010 (Vic) 8(1)(c).

[166] Re Council of the City of Sydney (No 3) [2021] NSWSC 1423 [14].

[167] [2009] NSWSC 117 [3]-[7].

[168] [2019] FCA 10 [6].

[169] [2009] NSWSC 117 [3]-[7].

[170] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 19) [2018] VSC 798 [28].

[171] Austin BMI Pty Ltd v Deputy Premier [2023] QSC 095 [163].

[172] McKay Super Solutions Pty Ltd v Bellamy's Australia Ltd (No 3) [2020] FCA 461 [8] ('Basil proceeding') (Beach J).

[173] McKay Super Solutions Pty Ltd (Trustee) v Bellamy's Australia Ltd (No 3) [2020] FCA 461.

[174] Federal Court of Australia, Supreme Court of Australia, 'Protocol for Communication and Cooperation between Supreme Court of Victoria and Federal Court of Australia in Class Action Proceedings' (Protocol, 5 June 2019) 1 .

[175] Lidgett v Downer EDI Ltd; Kajula Pty Ltd v Downer EDI Ltd; Jowene Pty Ltd v Downer EDI Ltd; Teoh v Downer EDI Ltd [2023] VSC 574 (Delany J).

[176] Kajula Pty Ltd v Downer EDI Ltd [2024] VSCA 236.

[177] The Australasian Institute of Judicial Administration Inc, Guide to Judicial Conduct (3rd ed, December 2023), 16(i).

[178] Hannam v Bradford Corporation [1970] 1 WLR 937, 949 (Cross LJ).