LEE J:
1 The dispute between the parties has a long history. Mr Ritson commenced proceedings in the Supreme Court of New South Wales against the respondent as long ago as October 2012. These proceedings were dismissed in September 2013, at which time an order was made that Mr Ritson pay the defendant's costs. Those costs were subsequently assessed under the Legal Profession Act 2004 (NSW) and judgment was entered in the Local Court of New South Wales, in respect of that assessment, in November 2016. The service of a bankruptcy notice followed and shortly thereafter Mr Ritson sought an order seeking to set aside the bankruptcy notice. On 20 April 2018, a judge of the Federal Circuit Court dismissed the application to set aside the bankruptcy notice, rejecting all six grounds advanced by Mr Ritson. It is unnecessary, for the purposes of the current judgment, to deal with the substance of the bases upon which the primary judge dismissed the application, save in one limited respect, to which I will come below.
2 Following the primary judge's dismissal of Mr Ritson's application, a notice of appeal was filed in this Court on 11 May 2018.
3 The notice of appeal contains eight grounds of appeal. The matter first came before me for the purposes of case management on 29 June 2018. At that stage Ms Gurumahan appeared, but only for the limited purpose of appearing on behalf of Mr Ritson at the case management hearing. Ms Gurumahan noted that Mr Ritson did not have a legal representative on the record and that her instructions were limited to handing up consent orders.
4 During the course of that first case management hearing, I indicated to Ms Gurumahan that this is not the way that case management hearings are supposed to work, and that Mr Ritson ought to be apprised of that reality. After that exchange, I indicated that if Ms Gurumahan did not have instructions to act for Mr Ritson to provide submissions to the Court to advance his interests, then the appropriate course was that she be excused. She then departed and I noted that I could not really progress the matter in the absence of the appellant, and adjourned the proceedings until 17 August 2018. At the same time, I extended the time for compliance with the bankruptcy notice to that date and made directions concerning a foreshadowed application for security for costs.
5 Prior to the date of that proposed listing, I adjourned the hearing. The matter was again adjourned on 6 September 2018 and 24 October 2018 (with the extension of the bankruptcy notice and directions made about the security for costs application). The rationale of those adjournments was that the parties were awaiting delivery of judgment in Supreme Court proceeding 2012/337024, which was a proceeding in which Mr Ritson, a little under five years after the costs order had been made, filed a notice of motion seeking orders that the costs order of September 2013 be set aside. The hearing of the notice of motion occurred on 31 August 2018 and judgment was delivered by Garling J on 21 December 2018, when his Honour dismissed Mr Ritson's application.
6 The matter next became before this Court on 8 February 2019. At that time I indicated to the parties that I proposed to list the appeal for hearing before me at 10.15am on 1 April 2019. I also made directions for the filing of submissions and the filing and service of an appeal book.
7 Shortly thereafter, an application was made by Mr Ritson that the appellate jurisdiction of the Court in relation to the appeal be exercised by a Full Court comprising three or more judges sitting together. I listed that interlocutory application for hearing before me in Brisbane at 2.15pm on 11 March 2019. Mr Ritson had not appeared at the first case management hearing and he had appeared by way of video conference from the Queensland registry when the matter was next set down. I understood from this that it was more convenient for Mr Ritson to appear in Brisbane. As it happened, I was required to be in Brisbane for another matter on 11 March, and I considered it was convenient for both the Court and Mr Ritson for the matter to be listed at that time and place.
8 What the evidence then reveals is that on 5 March 2019 a communication had been sent from the Chambers of his Honour Judge Vasta of the Federal Circuit Court of Australia to the parties in separate proceedings before that Court, including Mr Ritson. In that proceeding, the Australian Building and Construction Commissioner had filed an application for a lump sum order in relation to costs ordered against Mr Ritson. The communication from the Court indicated that the application would be listed before Judge Vasta at 2.15pm on 11 March 2019. This was, obviously enough, the same time as the listing of the interlocutory application before me.
9 What then occurred was that on the morning of 8 March 2019, that is, the Friday before the Monday listing, Mr Fleeton, who acts for the Australian Building and Construction Commissioner in the proceeding before the Federal Circuit Court, received a telephone call from the solicitor for the respondent in this proceeding, Ms Hegarty, who advised him as to the listings "clash".
10 Shortly after receiving this communication, Mr Fleeton contacted Judge Vasta's Chambers to alert the Associate to Judge Vasta as to the conflicting listings and set out possible options for consideration. On the same day, a response was received from his Honour's Associate, copied to Mr Ritson, indicating that the listing in the Federal Circuit Court matter would be vacated and re-listed if the application before this Court could not be adjourned.
11 Given the time sensitivity and the potential need to cancel interstate travel bookings which had already been made, including for counsel in the Federal Circuit Court matter, Mr Fleeton then contacted this Court at about 3.40pm and was put through to my executive assistant. Mr Fleeton then set out the conversation he has deposed to at paragraph 20 of his affidavit. This was deposed to by Mr Fleeton in the following terms:
I said:
"My name is Dominic Fleeton from K&L Gates. I act for the Australian Building and Construction Commissioner in a Federal Circuit Court proceeding which has been listed for hearing on Monday at the same time as a hearing listed by Justice Lee in proceeding NSD773/2018. The purpose of my call is to bring the clash to the attention of chambers and enquire as to whether Justice Lee would be minded to adjourn the interlocutory hearing listed in the proceeding before him".
She said:
"The Associate and Justice Lee will need to deal with the matter and as they are still in Court, send an email to chambers explaining the clash that has occurred, the response received from Judge Vasta's Associate and your request, so that the Associate and Justice Lee can consider it once they are out of Court".
12 Very shortly after this conversation, at 3.52pm, an email was sent to my Associate in the following terms:
Dear Associate
We act for the Australian Building and Construction Commissioner and the Commonwealth of Australia in a proceeding before Judge Vasta of the Federal Circuit Court.
Further to my conversation with [my EA] in his Honour's chambers, I have set out below my email to Judge Vasta's Associate of earlier today and the response received regarding a scheduling conflict between that matter and NSD773/2018.
The purpose of this email is to ascertain whether Lee J would be minded to adjourn the interlocutory hearing listed for Monday in NSD773/2018 to allow the hearing before Judge Vasta to proceed.
I would be grateful if you would let me know the position as soon as possible today.
Regards,
Dominic Fleeton
Special Counsel
K&L Gates
13 Conscious of the fact that I did not wish to inconvenience Mr Ritson, the respondent or the Federal Circuit Court, and alive to the possibility that my other matter listed at 9.30am that morning in Brisbane was likely to be finished prior to 12 noon, I instructed my Associate to respond as follows:
Dear Practitioners
I refer to your below email [being the email referred to above].
The listing before the Federal Court will be adjusted so that it commences at 12pm Brisbane time.
His Honour will ensure that the interlocutory hearing will not continue past 12.45pm, so that the listing, which we understand is before Judge Vasta at 2.15 pm, will be able to proceed in accordance with his Honour's listing.
Kind regards
14 A separate email in similar terms was then also sent by my Associate to the parties to the Federal Court proceedings at 4.15pm Sydney time. Somewhat remarkably in circumstances where this Court had gone to considerable efforts to accommodate an unforeseen scheduling difficulty, a communication was then received by my Chambers in the early morning of 11 March 2019, along the following lines:
Dear Associate
I refer to your email at 3.06 pm on Friday 8 March 2019.
Due to the lateness of the amendment to the listing (which was not subject to any prior consultation with me, and the fact that your email notifying me of same only came to my attention over the weekend) I am unable to attend the interlocutory hearing at the new listing time of 12:00 pm on Monday 12 March 2019.
I note that the listing was amended at the request of Mr Dominic Fleeton, who is not a party to this proceeding. Mr Fleeton communicated directly with his Honour's chambers without my knowledge or consent. In particular, Mr Fleeton apparently had a conversation with [my executive assistant] in his Honour's chambers (the full particulars of which have not been disclosed to me) and subsequently exchanged emails with you.
Mr Fleeton is a witness for the respondent in this proceeding. He swore an affidavit which was filed in this proceeding on 6 July 2018. Mr Fleeton has communicated directly with his Honour's chambers about a matter relating to his evidence in this proceeding, namely the hearing of the ABCC Commissioner's application to the Federal Circuit Court in case number BRG21/2016 for a lump sum costs order against me.
I note your email to me on 28 June 2018 explicitly stated that I should not communicate directly with chambers without leave. However, no issue appears to be taken with the respondent's witness making direct contact with his Honour's chambers, without my knowledge or consent, and apparently having a conversation with chambers staff about a matter relating to his evidence in this proceeding.
In the circumstances, I propose to file and serve an interlocutory application, together with supporting evidence and written submissions, seeking an order that his Honour disqualify himself from further involvement in this proceeding on the ground of apprehended bias.
I request that his Honour not determine my interlocutory application dated 14 February 2019 [relating to the constitution of the Court] and provide me with an opportunity to file and serve my proposed application, supporting evidence and written submissions.
Regards,
Brendan Ritson
15 The New South Wales District Registry responded in the following terms:
Dear Mr Ritson
I have referred your email of 11 March 2019 to his Honour's Chambers.
The interlocutory hearing was listed at 12 pm today on the basis that it was understood that a listing of an application involving you was listed at the same time in the Federal Circuit Court in front of Judge Vasta at 2pm. The re-listing was to accommodate the fact that his Honour did not wish to disturb an already existing listing before another judicial officer.
His Honour intends to call your interlocutory application regarding the constitution of the Full Court at 12noon today in Brisbane, and via video-link to Sydney. If there is no appearance on behalf of one or other party, then his Honour will determine the appropriate course to take in relation to your application relating to the constitution of the Full Court, and also your foreshadowed application that his Honour disqualify himself.
Given you are unrepresented, the appropriate course is that you continue to contact the district registry at this address.
Regards
16 The above email was sent at 8.46am (Brisbane time) in response to Mr Ritson's email that had been sent to the District Registry at 4.56am that morning. When the matter was called at 12.02pm, there was no appearance on behalf of Mr Ritson. In all the circumstances, I considered the best course was to adjourn the matter to today's date, which I knew was already convenient to Mr Ritson because it was the date of the original listing of the appeal. I also made an order that the question of costs of the day be reserved and any material relating to the issue of costs, including any affidavit explaining the non-attendance of Mr Ritson, be filed by 25 March 2019. No material was subsequently filed explaining Mr Ritson's non-attendance.
17 Rather, what occurred was that on 28 March 2019, a further interlocutory application was filed seeking an order that "the proceeding be adjourned pending the decision of the Legal Aid Review Committee pursuant to s 57 of the Legal Aid Commission Act 1979 (NSW)", and that the application for an adjournment be determined in Chambers prior to the listing on 1 April 2019.
18 I was not prepared to deal with the matter in Chambers (for reasons including that a listing was already set, applications likely to be opposed should be made in open Court, and there was an outstanding issue of apprehended bias that needed to be resolved) and I arranged for the interlocutory application for adjournment to be made returnable before me when the matter was already listed at 10.15am today.
19 When the matter was called at 10.15am this morning, there was again no appearance on behalf of Mr Ritson, notwithstanding that he had made an application by way of a "Videolink Request Form" dated 6 March 2019 to be granted leave to appear at the hearing on 1 April 2019 by way of video link. A further communication had been made to Mr Ritson today at 8.18am by the Registry, noting that there had been a need to change video court rooms in Brisbane and the matter would "be heard by video link from Court 6, Level 6 in Brisbane".
20 It occurred to me that notwithstanding the non-appearance, there may be some confusion as to the listing at 10.15am, given the current one-hour time difference between Sydney and Brisbane. Accordingly, after I adjourned the matter for a short period in order to allow the solicitor for the respondent to attempt to contact Mr Ritson (an attempt that miscarried by reason of the call going through to voicemail), I adjourned the matter until 11.15am to ascertain whether there would be an appearance by Mr Ritson. Again the matter was called outside of court three times in Brisbane and again there was no appearance on behalf of Mr Ritson. Two further attempts to contact Mr Ritson by way of telephone failed.
21 In these circumstances, I was not prepared to defer the matter without dealing with the interlocutory applications (which, of course, included an adjournment application). I was not prepared to further the already considerable inconvenience of those acting for the respondent and the Court.
22 Although there are three applications before the Court, it seems to me that logically the first application with which I should deal is the application that I disqualify myself. This is because this application goes to the legality of the constitution of the Court and ought to be determined before I proceed to exercise any judicial power other than determining whether the Court is properly constituted.
23 In relation to this application, no submissions have been filed by Mr Ritson that have been brought to my attention, although I have had regard to the affidavit he filed on 25 March 2018 in support of the interlocutory application.
24 The application that I disqualify myself is misconceived.
25 As is well-known, the usual starting point for considering the principled approach to disqualification applications is Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ), where it was held that a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. Recently, in McKenzie v Cash Converters International Ltd (No 3) [2019] FCA 10 at [18]-[21] I said as follows:
There is often arid debate in applications of this kind as to whether the Ebner test is undemanding or creates a "low hurdle". The shorthand of the "two might" test is frequently invoked. This case was no exception.
Irrespective as to whether one characterises the test as undemanding, balanced against it, of course, is the well-established proposition that a judge should not disqualify himself or herself on the ground of bias or reasonable apprehension of bias unless "substantial grounds" are established: Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at 233 [36] (McHugh, Kirby and Callinan JJ), see also R v Watson; ex parte Armstrong (1976) 136 CLR 248 at 262 and British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283 at 305 [45] (French CJ) and 313-314 [71] (Gummow J).
Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner at 345 [8] noted that the principled approach involves both the identification of what might lead a judge to decide a case other than on its legal and factual merits and then the articulation of the logical connexion between that factor and the feared deviation from the course of deciding a case on its merits. In applying this, Gageler J in Isbester at 155-156 [59] noted that there were, in effect, three steps involved:
Step one is identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as the result of a neutral evaluation of the merits. Step two is articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits. Step three is consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way.
In the present context it is also important to make reference to the fact that the rule is directed to prejudgment. As Gleeson CJ and Gummow J noted in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 531-2 [71]-[72]:
Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion…
... Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.
26 The fundamental difficulty with Mr Ritson's application is the failure to identify the factor which it is hypothesised might cause a question in the appeal proceeding to be resolved otherwise than as a result of a neutral evaluation of the merits. The mere fact that Mr Fleeton is a witness called by the respondents, and the fact that he communicated on an administrative matter with my Chambers, to draw a scheduling conflict to the attention of the Court and that the Court responded to alleviate the scheduling conflict, could not rationally be seen by a hypothetical observer as being a factor which might cause a deviation from a neutral evaluation of the merits.
27 I think I have already said enough to explain my conclusion that the notion that I could or might be diverted from neutral evaluation by the factor pointed to by Mr Ritson does not only fail to amount to a reasonable apprehension, but is one that a hypothetical observer, in my view, would dismiss out of hand as lacking any substance whatsoever. Accordingly, the application that I disqualify myself for apprehended bias is rejected.
28 Proceeding logically, the next issue is the adjournment application. Although the affidavit of 28 March 2019 purports to support the adjournment application and provides some detail as to the appeal from the decision of Legal Aid NSW, it is far from satisfactory. It provides no detailed relevant explanation as to why Mr Ritson has apparently only sought legal aid as late as 21 March 2019, and contains no detailed evidence as to his true financial position (although there is some material before the Court which suggests that Mr Ritson alleges that he has insufficient funds to obtain legal representation).
29 Mr Ritson deposes to his understanding that his application for legal aid was refused on the ground that legal aid is not available for bankruptcy matters, but the precise reasoning process has not been placed before the Court by way of any letter from Legal Aid. At the moment it does not appear that a record of all communications with Legal Aid are before this Court and it is somewhat unclear as to whether there was any other basis for the refusal. It appears that by the appeal Mr Ritson apparently seeks to dispute that legal aid should be refused on the basis that it is unavailable for bankruptcy matters.
30 Although it is not expressed as such in the affidavit, it is clear from prayer 1 of his interlocutory application, dated 28 March 2019, that Mr Ritson relies on s 57 of the Legal Aid Commission Act 1979 (NSW). That section provides as follows:
57 Adjournment of certain proceedings
Where it appears to a court or tribunal, on any information before it:
(a) that a party to any proceedings before the court or tribunal:
(i) has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or
(ii) intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent,
(b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and
(c) that there are no special circumstances that prevent it from doing so,
the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit.
(emphasis added)
31 Prior to 2003 there had been some debate as to whether s 57 applied to proceedings in the Federal Court. Obviously enough, if it did apply, this was because it was "picked up" by reason of s 79 of the Judiciary Act 1903 (Cth).
32 In Wilson v Alexander [2003] FCAFC 272; (2003) 135 FCR 273, the Full Court (Ryan, Heerey and Allsop JJ) held that s 57 applied as a federal law or a surrogate federal law picked up under s 79. The Full Court noted that s 79 applies not just to federal courts but, also, to state and territory courts when exercising federal jurisdiction, and it is in that context, "as part of the regulation of the exercise of the judicial power of the Commonwealth, that s 79 picks up applicable State law so as to apply it as federal law to the resolution of a controversy within the authority of the Commonwealth to quell" (at 279 [20]). Hence, properly considered, s 79 is not an attempt of state parliaments to control federal courts in the exercise of federal jurisdiction. The Full Court explained (at 279 [19]):
It is unnecessary and inappropriate to undertake a general discourse on s 79 and its operation; but, in the light of the comments of the Full Court in Woodlands v Permanent Trustee Company Ltd (1996) 68 FCR 213, 245 it is necessary to say a number of things. Section 57 applies in the Federal Court by force of s 79 of the Judiciary Act as long as it is "applicable" and as long as the Constitution or the laws of the Commonwealth do not otherwise provide. There is no reason to conclude that s 57 is not applicable. It deals with an aspect of procedure and the rights of a party to an adjournment. There is no law of the Commonwealth or provision of the Constitution which otherwise provides. So picked up, it applies as a federal law or a "surrogate" federal law: Pederson v Young (1964) 110 CLR 162, 165, ASIC v Edensor Nominees Pty Ltd (2001) 240 CLR 559, and Solomons v District Court (2002) 211 CLR 119, 134, [21]. The Court in Woodlands appeared to favour the view that s 79 picks up only "procedural laws". That is not correct: Commissioner of Stamp Duties v Owens (No 2) (1953) 88 CLR 168, 170, Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 135, Edensor, Bass v Permanent Trustee Group (1999) 198 CLR 34 and British American Tobacco v Western Australia (2003) 200 ALR 403, 420 [65]. This makes it unnecessary to decide whether s 57 is procedural or substantive for this purpose, a distinction which the High Court has said in this context is "not one that sheds any great light on this, or any other area of the law": Bass at 350.
33 It is unnecessary, for the purposes of this application, to enter upon a further excursus of s 79 of the Judiciary Act. Its operation was recently considered by the High Court in Rizeq v The State of Western Australia [2017] HCA 23; (2017) 262 CLR 1 (see especially, 26 [61]-[63]). Part of the reasoning of Bell, Gageler, Keane, Nettle and Gordon JJ in Rizeq was that a state parliament has no power to command a court as to the manner of exercise of federal jurisdiction conferred on or invested in that court. It follows that a state law "can determine neither the powers that a court has in the exercise of federal jurisdiction nor how or in what circumstances those powers are to be exercised" (at 41 [103]). Their Honours further held that s 79 "fills a gap" in the law governing the exercise of federal jurisdiction, which exists by reason of the absence of state legislative power to command a court as to the manner in which it exercises federal jurisdiction. It fills that gap by picking up the text of a state law governing the exercise of state jurisdiction and applying that text as a Commonwealth law to govern the manner of exercise of federal jurisdiction. In important respects, this reasoning is consistent with the approach that was taken earlier by the Full Court in Wilson.
34 For reasons that I will come to, however, it is unnecessary to decide whether or not Wilson is a correct statement as to the current position. The reason why there may be some doubt as to whether it remains an authoritative statement of the current position is because of legislative change to the Federal Court of Australia Act 1976 (Cth) (Act) subsequent to the Full Court's decision in Wilson, which inserted Pt VB into the Act with effect from January 2010.
35 As is well known, Part VB is central to the conduct of civil litigation in this Court. It provides for the overarching purpose of the civil practice and procedure provisions, being to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. As part of that legislative regime, s 37M(3) provides that:
The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(emphasis added)
36 The determination of any application for an adjournment, at least arguably, seems to me to amount to or involve the exercise of a power made under the Act, being a civil practice and procedure provision. It might be said (contrary to my tentative view) that the power to adjourn proceedings is part of the implied power of the Court to control its own processes and hence is not a "Civil Practice and Procedure Provision" as defined. However, even if this latter view is correct, any exercise of any implied power would necessarily involve consideration as to whether making an order would facilitate the overarching purpose as a relevant consideration.
37 Given that this matter has been raised late and the applicant is unrepresented, I have not had the benefit of any submissions in relation to this issue. It is unnecessary for me to reach a concluded view as to whether or not Wilson is applicable.
38 The reason why I need not decide the point in this case, is that I am firmly of the view that to grant an adjournment in the present circumstances would be wholly contrary to facilitating the overarching purpose, and that even if I were to assume that s 57 of the Legal Aid Commission Act 1979 (NSW) applied, the result would still be that I would refuse the adjournment.
39 In my view, there are clearly special circumstances that prevent the Court further adjourning the interlocutory conduct of the proceedings and declining to deal with the applications before me.
40 This matter has already had a long and lamentable history. Although a number of the adjournments were granted because I thought it would be appropriate to wait for judgment to be delivered by Garling J on the application to set aside the costs order, the matter, by its very nature, is one that should be determined with alacrity. The applicant says he is impecunious so he cannot afford representation and needs legal aid. What is at issue is whether the primary judge erred in his consideration as to whether the bankruptcy notice should have been set aside. Proceedings in bankruptcy have an important public dimension going beyond inter partes litigation. There is an obvious public interest in any litigation involving bankruptcy, or potential bankruptcy, being resolved with celerity. More directly, each appearance on behalf of the respondent causes further significant costs which seem unlikely to be able to be recovered against Mr Ritson in the event that his contentions as to lack of funds are correct.
41 Accordingly, even though I have some real doubt that s 57 does apply as surrogate federal law, irrespective of whether or not it does, it seems to me that there are special circumstances which require the Court to decline the adjournment. To act otherwise would not only fail to facilitate the overarching purpose, but would be to act contrary to it, inconsistently with the case management objectives of Part VB. Further, in reaching this conclusion on the current application of an adjournment of today's fixture, I also take into account the fact that the orders that I am making today are interlocutory in nature and are not determinative of the substantive merits of the appeal.
42 Accordingly, I dismiss the application for an adjournment of the proceedings.
43 This leaves me with the last of the three applications before me, which goes to the constitution of the Bench on the hearing of the appeal.
44 It appears, by reference to the affidavit of Mr Ritson sworn 14 February 2019, that the matter relied upon in support of this relief is ground 4 of the notice of appeal. In effect, this ground provides that the primary judge erred at [54] of the judgment below by finding that the decision of Ward J (as her Honour then was) in Kassem v Koutavas [2012] NSWSC 236 was wrongly decided and that the judgment of the Local Court of New South Wales was not irregular. It is said that this gives rise to an important point of principle in respect of which there are conflicts between judgments of single judges of the Supreme Court of New South Wales and the Federal Circuit Court.
45 The conflict between the two Supreme Court judgments is between Kassem and the decision of Garling J in Weber v Aquaqueen International Pty Ltd [2013] NSWSC 1181. I will not descend into the detail other than to note that Campbell AJA described the argument (about the costs of the costs assessment) as being based on a "technicality of the most arid kind" in Penson v Titan National Pty Limited (No 2) [2015] NSWCA 120 at [72].
46 The task of the Full Court in this case is to discern whether or not there has been appellable error on behalf of the primary judge. The principles that apply to the exercise of discretion pursuant to s 25(1AA) of the Act are as set out in Fair Work Ombudsman v Toyota Material Handling (NSW) Pty Limited [2012] FCA 347 at [9]-[10] (Katzmann J). They were also referred to by Perry J in Dahler v Australian Capital Territory [2015] FCA 1303.
47 The starting point for consideration of this issue is that the Parliament intended appeals of this kind to be heard by one judge (see Toyota at [8]-[9]). In exercising the discretion required to determine the application, consistently with the provision of the Act extracted above (s 37M(3)), the power must be exercised in a way that best promotes the overarching purpose. Given this requirement, and the fact that this dispute relates to a bankruptcy notice which has already been extended on a large number of occasions, it is appropriate that Mr Ritson's appeal be heard on its merits as soon as practicable.
48 In the event that the matter was referred to a Full Court comprising of three judges, it is highly unlikely that the matter would be able to be dealt with during the next sitting period of the Full Court, and there is reason to doubt that it might be able to be listed in the sittings immediately following, depending upon other matters required to be determined in that sitting period. On any view of it, the matter is going to be determined far more promptly in the event that it is determined by a single judge. If the appeal did clearly raise an issue of high importance I would have a different view, but although I have not reached a firm view concerning any of the grounds of appeal, on an impressionistic basis, I am not presently convinced that the issues raised on the appeal are such that in the proper administration of justice there is any real need for this matter to be heard by a Full Court comprising three or more judges.
49 Put more specifically, to the extent that there is a need for a single judge to express a view on whether Kassem or Aquaqueen is a preferable approach (a matter in respect of which I have not formed a view or had the assistance of submissions), there is no reason why a single judge hearing the appeal is not able to deal with this aspect of the appeal. In any event, even if it was thought it would possibly be better for three judges to deal with this argument (a notion I do not embrace), the downside of the further delay in resolving this bankruptcy matter militates decisively against a different constitution of the Court.
50 I should mention a further matter Mr Ritson raised immediately following this matter first being set down for hearing, that is, the outstanding status of an application filed on behalf of the respondent for security for costs. A communication was received by the District Registry on 8 February 2019 seeking confirmation as to whether or not the respondent's interlocutory application for security for costs had been "formally dismissed".
51 In an email from Mr Ritson to Ms Hegarty, dated 28 February 2019, confirmation was sought by Mr Ritson as to whether or not her client accepted that the interlocutory application seeking an order for security for costs was effectively dismissed. Two days earlier, Mr Ritson had noted that he had not received a response from the Court and asked Ms Hegarty whether or not the respondent agreed to a consent order formally dismissing the application with costs reserved. Mr Ritson had indicated that in the event that the respondent did not agree to the proposed consent order, he proposed to file and serve an interlocutory application formally seeking an order dismissing the application.
52 Ms Hegarty responded on 27 February, noting that the threats of an interlocutory application in relation to this matter were a "waste of both your resources and that of" the respondent. To this, it might have been added it would also be a waste of the resources of the Court. I should make it plain that the role of the District Registry and the Court is not to respond to requests such as that received by the District Registry on 8 February 2019. What occurred in relation to the application for security for costs is plain from a review of the transcript of the case management hearing. The respondent, sensibly and in accordance with the overarching purpose, did not press the application for security for costs at that time, notwithstanding it had been brought promptly, because I was able (I thought) to offer a very prompt hearing date. If there was any doubt about this, or the issue was sought to be agitated, it should have been done in open Court at the time of the case management hearing, or when the matter was next before the Court and without incurring further expense.
53 So there is clarity about this issue, the position of the respondent is not to move on the application for security for costs because I can still provide a hearing date with some speed. I pause to note that this is a further factor which militates in favour of this matter being dealt with by a single judge, so that the substantive appeal can be heard sooner rather than later and with minimum cost.
54 This leaves the costs of the three interlocutory applications with which I have dealt today. There is no reason why Mr Ritson should not pay the costs of all these interlocutory applications. There is no reason why the issue of the assessment of these costs should be delayed and not be payable on a lump sum basis.
55 As noted above, Mr Ritson has not attended and these orders are hence made in his absence. I do not know why he has not attended but it is unnecessary for present purposes to make a finding as to the reason for this and earlier non-attendance (which absences have had the practical effect of delaying the resolution of this matter and have caused real inconvenience to the Court, my staff and the legal representatives of the respondent). I will make an order arranging for the orders to be served on him. If he wishes to make any application in relation to them, he should proceed to do so in accordance with those orders.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.