Selth v Australasian Barrister Chambers Pty Ltd [2019] FCA 362 | Case summary

Background 1 On 28 July 2017, Greenwood J made orders in two proceedings that the unsuccessful respondents pay the applicants' costs: Selth v Australasian Barrister Chambers Pty Ltd (No 4) [2017] FCA 855. The proceedings and the parties were: proceeding NSD 975/2014: between Philip Selth in a representative capacity for the members of the Australian Bar Association (unincorporated) and ABA Australian Bar Association Ltd (as applicants); and Australasian Barrister Chambers Pty Ltd, Derek Michael Minus, Dispute Resolution Associates Pty Ltd and AUSTBAR Pty Ltd (as respondents) (the ABA proceeding); and proceeding NSD 1019/2014: between The New South Wales Bar Association (NSW Bar Association) (as applicant); and Mr Minus and Australasian Barrister Chambers (as respondents) (the NSWBA proceeding). 2 On 16 February 2018, a taxing officer issued a notice of estimate of costs under r 40.20(3) of the Federal Court Rules 2011 in each proceeding giving an estimate of what the taxed costs would be. No notice of objection to estimate of costs pursuant to r 40.21 of the Rules having been filed by 11 March 2018, the taxing officer subsequently issued a certificate of taxation in the amount of the estimate in each proceeding under r 40.20(4). 3 On 20 December 2018, the Federal Circuit Court sequestrated Mr Minus' estate and appointed the Official Trustee in Bankruptcy as Mr Minus' trustee. Mr Minus appears to be the sole director of each of Dispute Resolution and AUSTBAR. Mr Minus asserts that he is entitled to act for each of Dispute Resolution and AUSTBAR in the interlocutory applications. However, s 206B(3) of the Corporations Act 2001 (Cth) provides that Mr Minus is disqualified from being a director of a company by reason of his being an undischarged bankrupt. 4 On 14 January 2019, Mr Minus caused to be filed in each proceeding an identical interlocutory application intituled as the ABA proceeding, seeking an extension of time to file a notice of objection under r 40.21. However, on 24 January 2019, he filed a second interlocutory application, this time apparently intituled with the file number in the NSWBA proceeding that named himself and Dispute Resolution as applicants in the interlocutory application. However, Dispute Resolution was not a party to that proceeding on the record. I will refer to the applicants in the interlocutory applications as "the Minus parties". 5 On 24 January 2019, the Registry notified the parties that both interlocutory applications had been listed before me today for case management. On 25 January 2019, my associate informed the parties that I was a member of the NSW Bar Association but had no financial interest in it, as remains the case today. 6 On 12 February 2019, the Official Trustee made an election under s 60(3) of the Bankruptcy Act 1966 (Cth) not to continue or assign Mr Minus' claims in another proceeding (NSD 1409/2018) and said that the Official Trustee did not intend to involve itself in proceedings that Mr Minus commenced after the date of his bankruptcy. 7 On 19 February 2019, the Bar Associations' solicitors wrote to my associate and Mr Minus. The letter attached a copy of the Official Trustee's 12 February 2019 letter and referred to Cummings v Claremont Petroleum NL (1995) 185 CLR 124. The letter asserted that Mr Minus did not have standing, after becoming bankrupt, to file the interlocutory applications in his own name. The solicitors enquired whether the parties would still be required to appear on 22 February 2019. 8 Later on 19 February 2019, my associate emailed the parties pointing out that Mr Minus' two companies were applicants in one or both interlocutory applications and that the interlocutory applications remained in today's list for case management. 9 On 20 February 2019, Mr Minus sent an email to my associate and the Bar Associations' solicitors. He said that he would respond separately to their letter of 19 February 2019 (but did not do so in any communication that he sent to the Court or in evidence). He asserted that he was representing each of the companies in both interlocutory applications, but was: currently travelling in the USA on business on behalf of the corporations and not scheduled to return to my chambers until 11 March 2019. (original emphasis) He asked for an adjournment of the case management conference so that it could be held after his date of return, asserting that he had intermittent access to emails. 10 My associate responded to the parties by email later on 20 February 2019, noting that on 24 January 2019, the Registry had informed the parties that the interlocutory applications had been set down for case management today and that, in light of this, today's hearing would not be adjourned. 11 Mr Minus then responded on 21 February 2019 with a letter to the Principal Registrar, in which, for the first time in respect of my capacity to hear them, he said that he had continually requested that the present interlocutory applications not be allocated to present or previous members of the Bar Associations, but nonetheless they had been docketed to me. He noted what my associate had told him on 25 January 2019 (but did not refer to the date) and alleged that I must be "confused about the test for procedural fairness (Isbester v Knox City Council [2015] HCA 20 [255 CLR 135])". 12 The Registry responded by email later on 21 February 2019. The email confirmed the listing before me today and referred to the fact that the Official Trustee had abandoned Mr Minus' interest in proceeding NSD 1019/2014 and said that the two corporations were expected to appear. 13 At 9.12am this morning, Mr Minus sent another email to my associate and the solicitors for the Bar Associations, seeking that I recuse myself. The email sought to interrogate me about my associations past and present with each of the Bar Associations, and asked that the recusal application be set down for a hearing following 18 March 2019, after the disclosures he sought had been provided. He also wrote: Further in respect of the related corporations of which I was serving as a director I advise that I have given ASIC the requisite 3 weeks notice that I will be making an application to the Federal Court to be allowed to continue as a Director, on my return to Australia. 14 The Bar Associations asked that the interlocutory applications be dismissed, given that no one appeared today for any of the applicants in the interlocutory applications.

Consideration 15 In my opinion, there is no substance in Mr Minus' application that I recuse myself: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (see too Selth in a Representative Capacity for the Members of the Australian Bar Association v Australasian Barrister Chambers Pty Ltd [2015] FCA 1008 at [14] where Nicholas J rejected a similar application). In Ebner 205 CLR at 344-345 [6]-[8], Gleeson CJ, McHugh, Gummow and Hayne JJ discussed the principles and said (at [8]) (and see too Isbester 255 CLR at 146 [20]-[23], per Kiefel, Bell, Keane and Nettle JJ): 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. 16 Mr Minus, as a barrister, is well aware of the above test. He has made no attempt to articulate any reason why, having absolutely no financial interest in either Bar Association, the mere fact of my membership of the NSW Bar Association might cause a reasonable lay observer to think that I might not decide either interlocutory application on its legal and factual merits. 17 Upon his becoming bankrupt, Mr Minus ceased to have any interest in the judgment debts he owed for costs, or challenging the basis for their taxation, to support his subsequent filing of the interlocutory applications: Cummings 185 CLR at 139, per Brennan CJ, Gaudron and McHugh JJ (see too at 137-138). 18 Counsel for the Bar Associations has pointed out that in Mr Minus' affidavits sworn on 4 January 2019 in support of the interlocutory applications, he had said that both of his companies "had their Notice [being the notices of estimate of costs] addressed to their physical mailing address". Mr Minus did not state in his affidavits that he had been made bankrupt on 20 December 2018. While he gave some explanation in his affidavits as to why he, personally, may not have been served with the notices of estimate of costs, his admission that the two companies had been served properly tells against the merits of any challenge to them by his companies in their interlocutory applications for an extension of time. 19 Mr Minus has given no satisfactory explanation as to why he delayed between whenever the companies were served and when it was that he found an envelope addressed to him that enclosed the notices of estimate, an occasion that, again, does not appear in his affidavits, and 4 January 2019, when he swore the affidavits. All that he said on that topic was that he had not previously filed an application for an extension of time because he had been waiting for a similar appeal to progress through the Court in another proceeding, being one that the Official Trustee also abandoned on 12 February 2019.

Selth v Australasian Barrister Chambers Pty Ltd

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