Court of Appeal (Vic)|2025-11-20|Before: Garde J, Beach JA, Walker JA, Kenny JA

For the reasons give above, the applicant's proposed appeal does not have any real prospect of success. Accordingly, the application for leave to appeal must be refused.[63]

[1] For convenience, in describing the background to this proceeding, we will refer to the parties by their names. Later in the reasons, we will refer to Mr Susman as the applicant, and Ms Allen as the respondent.

[2] Allen v Susman (unreported, Supreme Court of Victoria, Garde J, 8 July 2025) ('Recusal Reasons').

[3] A second proposed ground of appeal, which asserted that the judge erred in taking irrelevant considerations into account, was abandoned by the applicant during the hearing in this Court.

[5] Fraser v Susman (unreported, Supreme Court of Victoria, Garde J, 28 June 2021).

[7] Then, the Supreme Court (General Civil Procedure) Rules 2015 ('Rules').

[8] Fraser v Susman (unreported, Supreme Court of Victoria, Garde J, 4 November 2021).

[12] Fraser v Susman (unreported, Supreme Court of Victoria, Garde J, 25 May 2022).

[13] Fraser v Susman (unreported, Supreme Court of Victoria, Garde J, 29 July 2022).

[14] The orders made on 20 October 2022 appear to reflect decisions made by the judge during the course of the hearing on 13 October 2022.

[15] Fraser v Susman (unreported, Supreme Court of Victoria, Garde J, 10 March 2023).

[16] Harman v Secretary of State for the Home Department [1983] 1 AC 280 ('Harman').

[17] While it appears from the material that this notice of objection was served on or about 2 June 2023, it does not appear that it was filed by Mr Susman until 26 July 2023.

[18] Fraser v Susman (unreported, Supreme Court of Victoria, Garde J, 16 June 2023).

[19] His Honour noted that, since 19 March 2021, he had made 'no fewer than 22 interlocutory orders', while three associate judges had also made one or more orders.

[20] Fraser v Susman (unreported, Supreme Court of Victoria, Garde J, 4 August 2023).

[22] Oakley Thompson & Co Pty Ltd v Victor Susman (No L12324112).

[23] Emphasis in applicant's supplementary submissions.

[26] Recusal Reasons, [3] (citation omitted).

[27] Ibid [5]. See also, Recusal Reasons, [46].

[48] Ebner [2000] HCA 63; (2000) 205 CLR 337, 344 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ). See also CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76, 87 [17]-[18] (Kiefel CJ and Gageler J); 96-7 [50] (Nettle and Gordon JJ); 118 [132] (Edelman J) ('CNY17').

[49] Ebner [2000] HCA 63; (2000) 205 CLR 337, 345 [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[50] Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352 (Mason J), 371 (Dawson J); R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546, 553 (Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ); CNY17 [2019] HCA 50; (2019) 268 CLR 76, 98 [56] (Nettle and Gordon JJ).

[51] CNY17 [2019] HCA 50; (2019) 268 CLR 76, 107 [93] (Nettle and Gordon JJ).

[52] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 279 CLR 148, 166 [50] (Kiefel CJ and Gageler J) ('QYFM').

[53] See, for example, QYFM [2023] HCA 15; (2023) 279 CLR 148, 165-6 [45]-[49] (Kiefel CJ and Gageler J); 172-3 [72] (Gordon J); 204-5 [170]-[172] (Edelman J); 212-3 [197]-[200] (Steward J in dissent); 230-232 [249]-[256] (Gleeson J in dissent); 237-8 [273], [275] (Jagot J). See also, GetSwift Ltd v Webb [2021] FCAFC 26; (2021) 283 FCR 328, 337-8 [31]-[36] (Middleton, McKerracher and Jagot JJ) ('GetSwift').

[54] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 493 [13] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) ('Johnson'); QYFM [2023] HCA 15; (2023) 279 CLR 148, 165-6 [48] (Kiefel CJ and Gageler J).

[55] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135, 146-7 [23] (Kiefel, Bell, Keane and Nettle JJ).

[56] Johnson [2000] HCA 48; (2000) 201 CLR 488, 509 [53] (Kirby J); QYFM [2023] HCA 15; (2023) 279 CLR 148, 165 [47] (Kiefel CJ and Gageler J).

[57] QYFM [2023] HCA 15; (2023) 279 CLR 148, 165 [47] (Kiefel CJ and Gageler J).

[58] QYFM [2023] HCA 15; (2023) 279 CLR 148, 165-6 [48] (Kiefel CJ and Gageler J); see also GetSwift [2021] FCAFC 26; (2021) 283 FCR 328, 338 [35] (Middleton, McKerracher and Jagot JJ).

[59] QYFM [2023] HCA 15; (2023) 279 CLR 148, 165 [47] (Kiefel CJ and Gageler J).

[62] And, in particular, at Recusal Reasons [51], [55], [58], [61], [64], [66], [68], [71], [72] and [73].

Court (General Civil Procedure) Rules 2015

Safety Intervention Orders Act 2010

Debt Recovery Act 1984

Susman v Allen [2025] VSCA 276 (20 November 2025)

CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 279 CLR 148, applied.

Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488; R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, referred to.

Ground 1 - The learned trial judge erred in law in failing to recuse himself despite circumstances giving rise to a reasonable apprehension of bias, contrary to the principles established in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner) and applied in British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283.

Particulars

The learned judge should have found that the fair-minded lay observer might not reasonably apprehend that he might bring an impartial mind to the resolution of the questions he is asked to decide having collective regard to the following:

(a) The fact that his dealing with the hearing ex parte on 6 February 2020 without questioning the proper basis of Mr Fraser's allegations and His Honour's granting of the freezing order of 6 February 2020 in circumstances where Mr Fraser's reliance on the Lebish audit which was a sham, amounts to a fraud on the Court which will be relevant to hearing of the trial.

(b) On 28 June 2021 the striking out the entire Appellant's 17 May 2021 Points of Claim [POC] which included six of the pleadings included in the current Counterclaim.

(c) On 28 June 2021 his making access to the Appellant's affidavits confidential, which included detailed evidence in the Appellant's 11 March 2021 affidavit that the Lebish audit which was a sham;

(d) On 4 November 2021, and notwithstanding that the Appellant was not thereby precluded from filing and serving, or seeking leave to file and serve a further proposed Counterclaim, striking out the Appellant's entire 10 September 2021 Counterclaim (which pleaded six of the pleadings included in the current Counterclaim and the Lebish audit which was a sham and references to the contradictory evidence of the company accountant) and making a costs order against the Appellant, that was payable immediately, backdated to March 2021.

(e) His Honour's statement at the hearing on 4 November 2021:

Susman v Allen [2025] VSCA 276

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Susman v Allen [2025] VSCA 276 (20 November 2025)