5.1 The reasoning of the primary judge
44 The primary judge records in her reasons that no particulars accompanied the application, but an affidavit of Mr Grunert, accompanied by an exhibit totalling some 2,700 pages was filed, though the affidavit did not identify any grounds of apprehended bias or direct attention to any particular evidence. The primary judge required that Mr Skelin file particulars of the grounds upon which the recusal application was based, which were subsequently provided in two documents.
45 In argument in this Court Mr Skelin summarises the case that he put to the primary judge in relation to apprehended bias. He submits that on 17 and 18 December 2019 the primary judge heard argument in relation to an application for freezing orders against him. During those hearings he submits that the primary judge made a number of statements which disclose that the primary judge was actively persuaded that the serious allegations against Mr Skelin being the mastermind of a fraudulent scheme involving the manufacture of counterfeit products was made out. That persuasion was manifested, he submits, in both the language used by the primary judge and in the scope of the freezing order made, which extended beyond Mr Skelin's property to include the house that his wife had owned for 17 years, in circumstances where she was not a party and in the absence of any evidence justifying an order. The primary judge delivered no reasons in relation to the freezing order, and so it is necessary, he submits, to consider the transcript and the orders. Mr Skelin submits that in concluding that the freezing orders were appropriate, the primary judge accepted Self Care's submissions that Mr Skelin had conducted himself as Self Care alleged.
46 The primary judge summarised these submissions in the recusal judgment at [26] and then set out the procedural context leading up to Mr Skelin's application. This involved prior ex parte orders made on 25 October 2019 against the first to sixth respondents, including Mr Skelin, restraining them from dealing in freezeframe products the subject of the proceedings until further order. The matter was then returned for case management on 31 October 2019 when counsel appeared for the fourth respondent and also Mr Skelin. Counsel agreed to certain orders that included the requirement that Mr Skelin deliver up certain records. Counsel and solicitors representing Mr Skelin subsequently made various applications and attended court on his behalf including on several separate occasions in November and early December 2019.
47 On 17 December 2019 three applications in a case filed by Self Care were returnable: one for contempt by three respondents (not including Mr Skelin), another for freezing orders against five respondents, including Mr Skelin, and a final one concerning a trade mark and domain name applications. Mr Skelin was represented by solicitors and counsel. On the evening of 17 December 2019 the primary judge made the freezing orders and the matter was returned for further hearing on 18 December 2019. The primary judge notes that no application to vary or discharge the freezing orders was then or has since been made by Mr Skelin.
48 In her reasons the primary judge summarises the principles relevant to consideration of the application that she recuse herself from the proceedings on the basis of apprehended bias. Mr Skelin makes no submission that the principles so cited are inaccurate. The primary judge considered the identity of the hypothetical observer. She noted that in Johnson v Johnson [2000] HCA 48; 201 CLR 488, the plurality (Gleeson CJ, Gaudron, McHugh, Gummow, and Hayne JJ) said at [13]:
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…
49 The primary judge noted, citing GetSwift Limited v Webb [2021] FCAFC 26; (2021) 388 ALR 75 (Middleton, McKerracher and Jagot JJ) at [34]-[35] that the hypothetical lay observer would, before forming a view about the existence of a reasonable apprehension of bias, be informed of the nature of the decision, the context in which it is made and the circumstances leading up to it and setting aside irrelevant and immaterial matters. She also noted that in GetSwift the Full Court said at [65] that there is a need on the part of an applicant for recusal to firmly establish a reasonable basis for thinking that the decision maker "might be so committed to a conclusion as to be incapable of persuasion to a different view". After extensively reviewing particular illustrative case examples relied upon by Mr Skelin in submissions, the primary judge turned to the grounds advanced.
50 In support of ground 1, which was to the effect that in making the freezing orders the primary judge accepted Self Care's submissions that Mr Skelin had conducted himself as Self Care had alleged, the primary judge referred to specific passages in the transcript relied upon by Mr Skelin, which are set out in annexure 3 to the primary judge's reasons. The primary judge noted that Mr Skelin relies on comments made within 16 pages out of the 179 pages of transcript taken on 17 and 18 December 2019 and that he characterises certain observations made by the primary judge in that transcript as "findings", which the primary judge then set out at [71]. The primary judge noted that a number of these were not the subject of the particulars provided, but that all transcript passages, together with surrounding transcript are set out in annexure 4 to the primary judges' reasons. That is a document of some 25 pages in length.
51 The primary judge scrutinised the passages relied upon by Mr Skelin in support of his recusal application in some detail over paragraphs [79]-[106] of her reasons.
52 The primary judge then noted that Self Care had submitted that the application should be dismissed because Mr Skelin had waived his right to seek recusal in circumstances where he had appeared before the court after the freezing order was made, he made no application to vary those orders or appeal from them, he had participated in the proceedings since then and there was no explanation from Mr Skelin as to why he had not sought to raise the question of apprehended bias until 18 months after the events complained of, citing Wilson at [72]-[85].
53 The primary judge declined to determine the application on the basis of waiver, but looked to the substance of the allegations of apprehended bias. She recorded at [119] that she had read the transcript of the hearing of the freezing order application and the passages emphasised in Mr Skelin's submissions "with knowledge of the circumstances leading to the hearing and the making of the [f]reezing [o]rders".
54 The primary judge then said (original emphasis):
[120] I consider that the hypothetical observer would be aware that the 25 October 2019 orders were interlocutory in nature. The hypothetical observer would be taken to know that Mr Skelin had told the Court (on 31 October 2019) he did not intend to argue against them during the interlocutory course of the proceeding, but that that did not mean he would not defend the matter and argue the matter fully at final hearing, with the benefit of evidence about his case. The hypothetical observer would know that judges - such as myself - are capable of impartially reconsidering matters which have previously been considered, including in this proceeding the evidence put before me in the 25 October 2019 hearing, and the interlocutory hearings in the seven weeks before 17 December 2019.
[121] The hypothetical observer would be aware that the 17 December 2019 hearing took place in the context that the applicants had obtained and looked at documents produced by Mr Skelin, but that the proceeding was still at a preliminary stage. The hypothetical observer would know that the applicants had yet to put on a statement of claim, and that Mr Skelin had yet to say what his response was, and put on his defence. The hypothetical observer would assume that these steps would occur. They would note that Mr Skelin said he intended to defend the proceeding, and that I accepted that expressed intention.
[122] The hypothetical observer would be aware that the judge was told before embarking on the detail of the hearing that the orders the applicants sought on 17 December 2019 were interim, and that the judge had made it plain that anything she did was to tide the proceeding over the Christmas break and that she was available on and from 10 January 2020 - when everyone had an opportunity to consider the matter and put on evidence and she could consider the application with the benefit of all the parties' evidence and full argument. The hypothetical observer would reasonably apprehend that what followed in the course of the hearing was to be viewed through that lens - that orders were sought to preserve the assets position over the Christmas break. The Court approached the application as interlocutory, interim and open to review. As observed in Johnson by Kirby J at [53], the hypothetical observer must be taken to have some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings to appropriate limits and to ensure that time is not wasted.
55 The primary judge rejected the contention that the hypothetical observer would reasonably consider that she had formed a clear or concluded view that Mr Skelin was dealing in counterfeit product, noting that it was not necessary for her to so find for the purposes of the application and that she made no findings of fact or with respect to credit. The primary judge concluded that the transcript shows that at most she was satisfied that Self Care had demonstrated a sufficient case for the purpose of making interlocutory freezing orders, noting also that the hypothetical observer would also observe that the primary judge had acknowledged that Mr Skelin intended to defend the proceeding, and that he would file a substantial affidavit (as proffered by his counsel) and that he was intending to fully participate in the proceedings.
56 The primary judge noted that ground 2 of Mr Skelin's application as advanced before her was that her conduct in the management of the proceedings over the course of 18 months since the making of the freezing orders "reinforced" the apprehension of bias which arose from the conduct in ground 1. Having concluded that ground 1 was not made out, the primary judge did not consider it necessary to address ground 2, but nevertheless did so in [137]-[158] of her reasons. She concluded that ground 2 was also not made out.