Storry v Business Licensing Authority

Federal Court of Australia|2022-11-04|Before: Re J, Thomas J

The interlocutory application filed 2 August 2022 is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THOMAS J: 1 In this matter, the applicant seeks interlocutory orders as follows: 1. The recusal of Judge Thomas 2. Or pursuant to Federal Court rule 39.05 (b) (c) The court set aside the judgment (errors in original) 2 Those orders are sought in the alternative, although each appears to relate to a different proceeding. 3 At a hearing on 28 July 2022, orders were made in relation to filing, evidence and submissions and that the matter be heard on the papers. 4 There is no current judgment in relation to these proceedings. A judgment was handed down on 7 July 2022 in a proceeding involving the applicant (QUD103/2022 - Venetia Louise Storry v Jonathan David Weir). The applicant has separately sought an order in proceeding QUD103/2022 that the judgment be set aside pursuant to r 39.05 of the Federal Court Rules 2011 (Cth). 5 In the body of the "interlocutory application-recusal" filed 2 August 2022, reference is made to Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner) and the following is quoted: '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 majority then stated that the apprehension of bias principle requires two steps for its application; 1. 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. 2. 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. (errors in original)

SUBMISSIONS 6 The applicant filed submissions which were dated 2 August 2022. Some of the applicant's submissions related to errors which, the applicant submitted, are evident in the judgment which was handed down in the bankruptcy proceeding QUD103/2022. 7 As to the question of recusal, the applicant submitted: The concern for the applicant is that Judge Thomas's associate was Nicholas Collier who is related to Judge Collier and this has caused apprehended bias. The Applicant holds that Judge Collier's interlocutory judgment has caused bias in Judge Thomas's judgment of the sequestration order and that he should have been aware of the history of the dates changing for QUD343/21 that would have impacted adversely on the applicant. Major Concern Nicholas Collier would have access to the file correspondence. Minor Concern There is also a professional history of Judge Collier in relation to Hilary Collier and her friend causing issues for the unit being relet to another tenant in favour of Hilary Collier's friend. Major Concern For QUD103/2022 Judge Thomas erred in not considering the key QPRIME document unserved until day 1 of the civil magistrate's hearing- mentioned to Judge Egan and centre at the hearing and material before Judge Collier showing the applicants witness of stopping and swerving. Major Concern For QUD343/21. The applicant is concerned that the key evidence of the Office of Fair Trading Exhibit 1: "It is the chief executive's submission that the 13 July 2021 directions hearing be vacated" "The respondent has filed an appeal APL 149-21 against a decision in OCR-19 and directions have been issued in that matter". Could also be overlooked with adverse findings against her. (emphasis and errors in original) 8 Three paragraphs of submissions followed the above text. 9 In [1] of the submissions, the applicant again outlined the alternative relief sought, namely "that Judge Thomas either recuse himself from hearing QUD343/2021 or pursuant to the Federal Court rule 39.05 (b) (c) set aside the judgment on the strength of errors in the bankruptcy hearing QUD103/2022" (errors in original). In [2], the applicant referred to concerns "about the connections between the hearing schedules of QUD343/2021 and QUD103/22". Paragraph [3] consisted of subparagraphs A to O, which detailed the various steps which took place in the QUD103/2022 proceedings and the subsequent judgment. 10 The applicant concluded by saying: "The applicant prefers that his Honour revises his judgment and order of QUD103/2022 if he was not aware of the procedural unfairness that was on foot before he took hold of the matter". 11 The applicant then referred to the case of Ebner and "r 39.05 (b) (c)" of the Federal Court Rules 2011 (Cth). 12 The applicant filed two affidavits in support of her application, one affirmed on 1 August 2022 and the second affirmed on 4 August 2022. The 4 August 2022 affidavit set out what was said in the 1 August 2022 affidavit and added some additional detail as to filing in the High Court of Australia. 13 In the 1 August 2022 affidavit, reference is made to: (a) the current application "on appeal of a mutual recognition application from a decision of the AAT on the 5th of October 2021"; (b) the Federal Court Registrar having early knowledge of the contents of the bankruptcy proceedings and the applicant seeking an urgent hearing. The decision was referred to as causing the applicant's agency to suffer significantly from a "bad faith decision" of the Office of Fair Trading (OFT) after a cyber-attack and death of the principal agent; (c) a car accident and a pending hearing in the High Court; (d) the case management hearing of the "mutual recognition proceeding" and the filing of the bankruptcy proceedings; (e) various steps in the bankruptcy proceedings; and (f) as to links with Collier J, the fact of Collier J having been a guarantor for a lease for Hilary Collier, Hilary Collier having broken her lease, a friend having made application to take over Hilary Collier's lease, which was refused by the applicant's agency, and the friend then taking up residence in an adjoining unit and "ma[king] life difficult for the successful tenant".

RECUSAL 14 A judge must approach the exercise of their jurisdiction in a manner that is, and must be seen to be, independent and impartial (Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 95 ALJR 128; [2021] HCA 2 per Edelman J at [80]). 15 Reference has been made by the applicant to the decision in Ebner. In that case, Gleeson CJ, McHugh and Gummow JJ said: 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. 20 … In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable. 16 The question was recently discussed by the High Court in Charisteas v Charisteas (2021) 393 ALR 389; [2021] HCA 29 (Charisteas) (at 393 [11]): Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute. The apprehension of bias principle is 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". The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial - that it is conducted by an independent and impartial tribunal. (footnotes omitted) 17 Judicial officers have a duty to discharge their duty to sit and, in exercising their jurisdiction, must do so in a manner that is, and is seen to be, independent and impartial. It follows that a judicial officer should not adopt the approach that the officer should automatically disqualify herself or himself whenever requested by one of the parties to do so and should not disqualify herself or himself on the basis of reasonable apprehension of bias unless substantial grounds are demonstrated. 18 In Livesey v The New South Wales Bar Association (1983) 151 CLR 288, the High Court concluded (at 294): [I]t would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do … 19 In Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 at 352, Mason J observed: It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established" … Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. (citation omitted) 20 In Bienstein v Bienstein (2003) 195 ALR 225; [2003] HCA 7 at 233 [36], McHugh, Kirby & Callinan JJ said that "[a] judge should not disqualify himself or herself on the basis of bias or a reasonable apprehension of bias unless substantial grounds are established". 21 In the context of previous involvement with a party giving rise to claims of apprehended bias in legal proceedings, the High Court in Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [67] (per Gummow A-CJ, Hayne, Crennan and Bell JJ), when considering the objective assessment of the facts and circumstances to be undertaken, concluded that it was improper to firstly assume the existence of a reasonable apprehension of bias then look for confirmation in the reasons of the decision-maker as such inquiry "moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment" (italics in original). 22 Disappointment with a decision made by a judge does not give rise to a conclusion that it was arrived at as a result of bias. The question is whether any fact has been raised by the applicant which could lead a fair-minded lay observer to consider that any actual or apprehended bias could create a real possibility that the mind of the judge would be closed or prejudiced against the applicant. 23 Consideration of the question of bias, first, requires the identification of what it is said by the applicant might lead a judge to decide the case other than on its factual and legal merits and, secondly, 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" (Ebner at 345 [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ) and Charisteas at 393 [11]).

The proceedings in respect of which the recusal is sought 24 The applicant applied to the Business Licensing Authority (BLA) for an estate agent's licence in Victoria through the Mutual Recognition Act 1992 (Cth) (the Act). 25 The application was refused pursuant to s 23(1)(a) of the Act on the basis that the applicant had provided a materially false or misleading statement with respect to her request for the grant of registration in Victoria. 26 The applicant applied to the Administrative Appeals Tribunal (Tribunal) for a review of the decision of the BLA. 27 On 5 October 2021, the Tribunal dismissed the application for review. 28 The applicant appealed from the decision of the Tribunal to this Court (the Mutual Recognition Proceedings). 29 Pursuant to r 26.01(1)(a) of the Federal Court Rules 2011 (Cth), the respondent sought an order that judgment be given against the applicant because the applicant had no reasonable prospect of successfully prosecuting the proceeding. 30 Submissions were filed and the hearing took place, but was interrupted by the sequestration order. 31 This is the proceeding as to which the applicant seeks the order relating to recusal.

IDENTIFICATION OF WHAT IT IS SAID MIGHT LEAD A JUDGE TO DECIDE THE CASE OTHER THAN ON ITS FACTUAL AND LEGAL MERITS 32 In the submissions, the applicant referred to the following: "Judge Thomas's associate was Nicholas Collier who is related to Judge Collier and this has caused apprehended bias" "Judge Collier's interlocutory judgment has caused bias in Judge Thomas's judgment of the sequestration order and that he should have been aware of the history of the dates changing for QUD343/21 that would have impacted adversely on the applicant" "Nicholas Collier would have access to the file correspondence" "a professional history of Judge Collier in relation to Hilary Collier and her friend causing issues for the unit being relet to another tenant in favour of Hilary Collier's friend" "Judge Thomas erred in not considering the key QPRIME document … mentioned to Judge Egan and centre at the hearing and material before Judge Collier showing the applicants witness of stopping and swerving" (errors in original) "key evidence of the [OFT] … [c]ould also be overlooked with adverse findings against her" concerned "about the connections between the hearing schedules of QUD343/2021 and QUD 103/22" "the Federal Court registrar having early knowledge of the contents of the bankruptcy proceedings and the applicant seeking an urgent hearing".

ARTICULATION OF THE LOGICAL CONNECTION BETWEEN THE MATTER AND THE FEARED DEVIATION FROM THE COURSE OF DECIDING THE CASE ON ITS MERITS 33 There is no discernible logical connection between the matters raised by the applicant and a feared deviation from the course of deciding the Mutual Recognition Proceedings on its merits. 34 A decision was made by Judge Egan on 18 March 2022, which was that "[a] sequestration order is made against the estate of Venetia Louise Storry" (Weir v Storry [2022] FedCFamC2G 183). An application was made by the applicant for an order staying the operation of the sequestration order made by Judge Egan. As duty judge, Collier J heard the matter and published reasons on 7 April 2022 refusing to grant an order staying the operation of the sequestration order (Storry v Weir [2022] FCA 362). Subsequently, on 20 June 2022, I heard an appeal by the applicant from the order of Judge Egan and, on 7 July 2022, published reasons refusing the appeal (Storry v Weir [2022] FCA 794). There is no basis advanced, nor any basis, to conclude, that the interlocutory judgment of Collier J in the bankruptcy proceedings (or indeed my order in the bankruptcy proceeding) will cause me to decide the Mutual Recognition proceedings other than on its merits. 35 The submission concerning Mr Collier was based on the fact that Mr Collier is related to Collier J (who refused the interlocutory application in the bankruptcy proceedings) and thus is said to have "caused apprehended bias". Nothing has been identified by the applicant which articulates a logical connection between the issue raised regarding Mr Collier and a feared deviation from the course of deciding the Mutual Recognition Proceedings on its merits. In any event, Mr Collier was not, in fact, an associate at the time of the bankruptcy hearing (20 June 2022) or the final judgment being handed down (7 July 2022). He is not currently an associate at this Court. 36 No logical connection is articulated between the letting of the unit to Ms Collier and the feared deviation by me from the course of deciding the Mutual Recognition Proceedings on its merits. The fact that the applicant came across Ms Collier in relation to the letting of a unit has no bearing on whether I will decide the Mutual Recognition Proceedings on its merits. 37 Issues are raised regarding asserted errors in the bankruptcy appeal. Those errors relate to a motor vehicle accident about which there were proceedings which led to the bankruptcy proceedings. To deal with alleged errors in proceedings a party has to right to appeal. Again, there is no articulation of (nor is there) any logical connection between these matters and the feared deviation by me from the course of deciding the Mutual Recognition Proceedings on its merits. 38 Reference is also made to a concern regarding connections between the hearing schedules in the bankruptcy proceedings and the Mutual Recognition Proceedings. Again, there is no articulation of (nor is there) any logical connection between the hearing schedules and the feared deviation by me from the course of deciding the Mutual Recognition Proceedings on its merits. 39 The applicant also referred to the Federal Court Registrar having early knowledge of the contents of bankruptcy proceedings and the applicant seeking an urgent hearing. Again, there is no articulation of (nor is there) any logical connection between the knowledge of the Registrar in relation to the bankruptcy proceedings and the feared deviation by me from the course of deciding the Mutual Recognition Proceedings on its merits. 40 I cannot see any substance in the application for my recusal from the hearing of the Mutual Recognition Proceedings. 41 As to the order sought relating to the judgment in QUD103/2022, any such application should be made in the relevant proceedings. 42 The interlocutory application will be dismissed. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thomas.

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