Scott v Nimlaw Pty Ltd

Federal Court of Australia|2024-09-18|Before: Mr J, Charlesworth J, O'Bryan J, McElwaine J, O'Sullivan J

THE COURT ORDERS THAT:

By on or before 23 October 2024, the appellant is to file and serve any written submissions in which she intends to rely, limited to 10 pages including any annexures, in 12 point font and 1.5 line spacing.
By on or before 6 November 2024, the respondent is to file and serve any written submissions in which it intends to rely, limited to 10 pages including any annexures, in 12 point font and 1.5 line spacing.
The matter is listed for hearing at 10.00am (AEDT) on Thursday 14 November 2024 with 2 hours set aside.
The appellants' interlocutory application filed 13 September 2024 that Justice O'Sullivan recuse himself is refused.
Costs reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT O'SULLIVAN J:
By interlocutory application filed 13 September 2024, the appellant applies for an order that I recuse myself from hearing this matter on the basis of apprehended bias. The application is supported by an affidavit of the appellant sworn 13 September 2024.
The substantive proceeding is an appeal from a judgment of the Federal Circuit and Family Court of Australia given on 4 July 2024 at Sydney, Nimlaw Pty Ltd v Scott, in the matter of Scott [2024] FedCFamC2G 647, in which the primary judge dismissed an application for review of a decision of a Registrar of the Court made 13 March 2024 to make a sequestration order against the estate of the appellant.
The history of the matter was succinctly set out by the primary judge at paragraphs 2 and 3 in the following terms:
On 15 November 2023, Charlesworth J dismissed Dr Scott's application to set aside the Bankruptcy Notice. Scott v Nimlaw Pty Ltd [2023] FCA 1420. On 19 November 2023, Dr Scott filed an interlocutory application in the same proceeding seeking leave to appeal Charlesworth J's decision as well as a stay of execution or operation of any proceedings on the Bankruptcy Notice pending the outcome of the appeal. The application for a stay was referred to O'Bryan J as Commercial and Corporations Duty Judge and was refused ... Scott v Nimlaw Pty Ltd (No 2) [2023] FCA 1472. On 19 November 2023, Dr Scott lodged a notice of appeal against Charlesworth J's dismissal of her application. That is proceeding SAD160/2023. Scott v Nimlaw Pty Ltd [2024] FCA 26 at paragraph 4. According to a Federal Court order dated 16 February 2024, the appeal was dismissed by McElwaine J on that day.

Principles

The principle in relation to apprehended bias is that: Charisteas v Charisteas [2021] HCA 29; 95 ALJR 824: 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.
The application of the principle requires two steps:
First, identification of what it is said might lead to a judge ... to decide a case other than on its legal and factual merits; and
Second, an articulated 'logical connection' between that matter and the feared departure from the judge deciding the case on its merits.
Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed: Charisteas at paragraphs 11 to 13. See also Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6] and [19] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
In Ebner, their Honours observed at paragraph 19: 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.
Turning to the two steps. First, as to what might lead a judge to decide the appellant's case, other than on its legal and factual merits, to the extent, I can understand the appellant's submissions, they are as previously described. None of those matters are matters which might lead a judge to decide the appellant's case other than on its legal and factual merits.
That being the case, there is no articulated logical connection between that and any feared departure from me deciding the case on its merits (second step).
Having considered the matters raised by the applicant in her affidavit and in oral submissions today, there is no basis to support a contention that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the question I am required to decide. It is for these reasons that I decline to recuse myself in this matter.
I make the following orders:
The appellant is to file and serve any written submissions limited to 10 pages including annexures in 12 point font with 1.5 line spacing by on or before 23 October 2024.
The respondent is to file and serve any written submissions limited to 10 pages including any annexures in 12 point font with 1.5 line spacing by on or before 6 November 2024.
I list the appeal for hearing on Thursday 14 November 2024 at 10 am, two hours set aside.
The applicant's interlocutory application filed 13 September 2024 seek an order that I recuse myself is refused.
Costs reserved. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan.

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