Thomson v Australia and New Zealand Banking Group Limited [2024] QCA 73

SUPREME COURT OF QUEENSLAND

CITATION: Thomson v Australia and New Zealand Banking Group Limited [2024] QCA 73

PARTIES: CAROLYN MARY THOMSON / (appellant) / v / AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED / ACN 005 357 522 / (respondent)

FILE NO/S: Appeal No 3513 of 2022 / Appeal No 4341 of 2022 / SC No 8958 of 2019

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeals

ORIGINATING COURT: Supreme Court at Brisbane – [2022] QSC 18 (Williams J); Unreported, 18 March 2022 (Williams J)

DELIVERED ON: 7 May 2024

DELIVERED AT: Brisbane

HEARING DATE: Heard on the papers

JUDGES: Mullins P and Morrison and Bond JJA

ORDERS: Leave granted to amend the notice of appeal except in respect of proposed grounds 2m, 2n, 2s(a)-(d), 2v, 2y and 2z.Applications to adduce evidence refused.The appeal in CA3513 of 2022 is dismissed with costs.The appeal in CA4341 of 2022 is dismissed with costs.

CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – OTHER MATTERS – OTHER CASES – where the appellant served a statutory demand on the respondent for an alleged debt of $2,832,378 on 1 August 2019 – where the primary judge set aside the primary demand, pursuant to s 459H of the Corporations Act 2001 (Cth), on the basis that there was a genuine dispute – where the primary judge also made an order as to costs – where an application was made by the ANZ under r 371(2) and r 389(2) of the Uniform Civil Procedure Rules 1999 – where the appellant challenges both decisions of the primary judge – where the appeals had multiple grounds of appeal including that the primary judge should be disqualified due to apprehended bias, that the primary judge erred in her Honour’s findings and that the appellant was denied natural justice – whether the appeals should be allowed / Corporations Act 2001 (Cth), s 459G, s 459H, s 459J(1)(b) / Uniform Civil Procedure Rules 1999 (Qld), r 5, r 30, r 371(2), r 389(1), r 389(2) / Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2013] 2 Qd R 202; [2012] QCA 272, considered / Australian Communication Exchange Ltd v Pilot Partners P/L [2017] QSC 176, considered / Chambers v Brice [2013] QSC 232, considered / Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29, considered / Ligon 158 Pty Ltd v Huber (2016) 117 ACSR 495; [2016] NSWCA 330, considered / MNWA Pty Ltd v Deputy Commissioner of Taxation (2016) 250 FCR 381; [2016] FCAFC 154, considered / Nine Network Australia Pty Ltd v Wagner (2020) 6 QR 64; [2020] QCA 221, considered / Re Syncordia Group Operations Pty Ltd [2021] VSC 732, applied / SGR Pastoral Pty Ltd v Christensen [2019] QSC 229, considered / Superior IP International Pty Ltd v Ahearn Fox Patent and Trademark Attorneys [2012] FCA 282, considered

COUNSEL: The appellant appeared on her own behalf / E J Goodwin KC for the respondent

SOLICITORS: The appellant appeared on her own behalf / Herbert Smith Freehills for the respondent

1. THE COURT: On 1 August 2019 the appellant served a statutory demand on the respondent (the ANZ) for a debt alleged to be $2,832,378. The demand set out that:

(a)on 22 March 2018 the ANZ agreed to pay the following companies on behalf of the appellant:

(i)Tremco Pty Ltd (Tremco) - $972,000;

(ii)PWA Financial Group Pty Ltd (PWA) - $50,000; and

(iii)Thomson Lawyers - $30,000;

(b)on 12 October 2018 the ANZ agreed to pay the appellant a cash payment of $1,780,378.

2. On 24 February 2022 the learned primary judge set aside the statutory demand pursuant to s 459H of the Corporations Act 2001 (Cth), on the basis that there existed a genuine dispute as between the appellant and the ANZ as to the debts¹.

3. The appellant has brought two appeals. The first is from the order setting aside the statutory demand. The second is from the learned primary judge’s orders as to costs, and an application by the ANZ under r 371(2) and r 389(2) of the Uniform Civil Procedure Rules 1999 (UCPR).

4. Though the appeals appear complex in terms of the formulation of the grounds, the following issues can be distilled:Issue 1 – was the learned primary judge disqualified by reason of apprehended bias, due to an alleged failure to disclose;Issue 2 – did the learned primary judge err in finding that the evidence supported the existence of a genuine dispute;²Issue 3 – was the appellant denied natural justice by the absence of an oral hearing on the apprehended bias issue;Issue 4 – if the alleged denial of natural justice occurred, can this court be satisfied that the opportunity of an oral hearing could have made no difference to the learned primary judge’s order on the apprehended bias issue;Issue 5 – was the learned primary judge able to hear the ANZ’s r 371 application on 18 March 2022, before the orders pronounced on 24 February 2022 were set aside on appeal; Issue 6 – was the learned primary judge’s exercise of discretion on the r 371 application affected by a relevant error of the type identified in House v The King³; andIssue 7 – was the learned primary judge’s exercise of discretion to refuse the appellant’s two requests for an adjournment, affected by error of the type identified in House v The King and, if so, did it impact on the final outcome.

5. For the reasons which follow the appeals must be dismissed. As will become apparent, not all of the issues above need be resolved.

Background

6. The following facts do not appear to be in contention on the material before this Court.

7. In 2008 the appellant and her husband took out a home loan with the ANZ, secured by a registered mortgage over a residential property at Pelican Waters in Queensland.

8. In 2009, the ANZ provided a business loan to Kadoe Pty Ltd in its own capacity, and as trustee for the For Three Trusts. The appellant’s husband was the sole director of Kadoe.

9. PWA⁴ had been engaged by the appellant’s husband to establish the Trust. By no later than early 2016 the appellant had begun to complain to the ANZ about various issues, including that the Trust had not been established by PWA.

10. The appellant’s complaints ultimately led to a meeting in March 2018 and one in October 2018.

11. On 5 or 6 August 2019, the statutory demand was served on the ANZ.

12. On about 18 August 2019, the appellant filed a complaint with the Australian Financial Complaints Authority (AFCA) against the ANZ, which overlapped with the issues raised by the statutory demand. AFCA is a financial industry ombudsmen created pursuant to Commonwealth legislation.

13. The appellant refused to withdraw the statutory demand. On 22 August 2019, the ANZ filed and served an originating application to set aside the statutory demand, together with affidavits by Mr Smith and Ms Kindermann.

14. The ANZ’s originating application was the subject of twelve consent adjournments in total, pending AFCA’s determination of the complaint. Those adjournments were, in a general sense, in accordance with AFCA requirements.

15. On 10 September 2019, the appellant filed a notice of appearance as required by schedule 1A, r 2.9 of the UCPR. On 17 September 2019, the appellant filed an affidavit by Mr Thomson, her husband.

16. On 21 September 2021, AFCA issued its determination of the appellant’s complaint regarding, amongst other matters, the issues the subject of the statutory demand.

17. On 29 August 2021, the appellant emailed the ANZ’s solicitors seeking to have the originating application (then set down to be heard on 29 September 2021) adjourned to February 2022. This was requested due to AFCA’s determination having not been released, and for various reasons personal to the appellant. The ANZ agreed.

18. On 15 September 2021, Jackson J adjourned the originating application to a date to be fixed in the week commencing 7 February 2022. That order was made by consent.

19. The adjournment resulted in the hearing before the learned primary judge on 7 February 2022.

“I would like Her Honour to recuse herself. As I am self represented this should be done by Her Honour instead of requiring me to make a formal application and argue that Her Honour should be disqualified from these proceedings. An informal application for Her Honour to recuse herself is acceptable and this is my application. My application for recusal is based on apprehended bias and/or actual bias as follows ….”

29. There was no oral hearing of the appellant’s informal application for recusal. No party applied for leave to proceed under r 389 UCPR either prior to or at the hearing on 7 February 2022.

30. On 25 February 2022, the ANZ’s solicitors sent an email to the appellant, attaching the ANZ’s submissions on the question of costs.

31. On 11 March 2022, the ANZ’s solicitors emailed the appellant, foreshadowing that the ANZ would, to the extent necessary, seek an order under r 371(2) and r 389(2) UCPR.

32. On 15 March 2022, ANZ’s solicitors sent an email to the appellant attaching the ANZ’s submissions for the r 371 application, the authorities referred to in those submissions, and an affidavit of Mr Joubert, sworn 15 March 2022.

33. On 17 March 2022, the appellant emailed the ANZ’s solicitors, attaching her submissions dealing with the r 389(2) application.

34. On 18 March 2022, ANZ’s solicitors emailed the appellant, attaching the r 371 and r 389(2) application.

35. On 18 March 2022, the learned primary judge heard the arguments about costs and the ANZ’s applications. The r 389(2) application was filed in court that day. The appellant appeared by video and the hearing lasted approximately three and a-half hours.

Legal principles not in dispute

36. It seems to be accepted that the learned primary judge identified the correct legal principles for determining two issues, namely:whether there existed a genuine dispute about a statutory demand; andwhether a judge should be disqualified for apprehended bias, or actual bias.

Legal principles – setting aside a statutory demand

37. In SGR Pastoral Pty Ltd v Christensen,⁷ Bowskill J⁸ referred to the test applicable on an application under s 459 of the Corporations Act:⁹

“[51]The relevant principles concerning whether there is a genuine dispute under s 459H were summarised by McKerracher J in Citation Resources Ltd v IBT Holdings Pty Ltd (2016) 116 ACSR 274 at [17]. The threshold is not high or demanding; a genuine dispute means there must be a plausible contention requiring investigation; and it is only if the applicant’s contentions are so devoid of substance that no further investigation is warranted that the applicant will fail. The court is not called on to determine the merits of, or to resolve, the dispute.”

38. There is authority to the effect that an application to set aside a statutory demand is not to be conducted as a mini trial but to be dealt with in a summary way. In Superior IP International Pty Ltd v Ahearn Fox Patent and Trademark Attorneys¹⁰ this was said by Reeves J:

“[20]There have been numerous expositions as to what amounts to a ‘genuine dispute’ for the purposes of s 459H of the Act, and the predecessors to that section. One of the more comprehensive and useful (with respect) s that of McLelland CJ in Equity in Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 (Eyota) at 787-8 as follows:

‘It is, however, necessary to consider the meaning of the expression ‘genuine dispute’ where it occurs in s 450H. In my opinion that expression connotes a plausible contention requiring investigation, and raises much the same sort of considerations as the ‘serious question to be tried’ criterion which arises on an application for an interlocutory injunction or for the extension or removal of a caveat. This does not mean that the court must accept uncritically as giving rise to a genuine dispute, every statement in an affidavit ‘however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself, it may be’ not having ‘sufficient prima facie plausibility to merit further investigation as to [its] truth’ … or ‘a patently feeble legal argument or an assertion of facts unsupported by evidence’ …

But it does mean that, except in such an extreme case, a court required to determine whether there is a genuine dispute should not embark upon an inquiry as to the credit of a witness or a deponent whose evidence is relied on as giving rise to the dispute. There is a clear difference between, on the one hand, determining whether there is a genuine dispute and, on the other hand, determining the merits of, or resolving, such a despite. In Mibor Investments (at 366-7) Hayne J said, after referring to the state of the law prior to the enactment of Div 3 of Pt 5.4 of the Corporations Law, and to the terms of Div 3:

These matters, taken in combination, suggest that at least in most cases, it is not expected that the court will embark upon any extended inquiry in order to determine whether there is a genuine dispute between the parties and certainly will not attempt to weigh the merits of that dispute. All that the legislation requires is that the court conclude that there is a dispute and that it is a genuine dispute.

In Re Morris Catering (Aust) Pty Ltd (1993) 11 ACSR 601 at 605 Thomas J said:

There is little doubt that Div 3 … prescribes a formula that requires the court to assess the position between the parties, and preserve demands where it can be seen that there is no genuine dispute and no sufficient genuine offsetting claim.

That is not to say that the court will examine the merits or settle the dispute. The specified limits of the court’s examination are the ascertainment of whether there is a ‘genuine dispute’ and whether there is a ‘genuine claim’.’

It is often possible to discern the spurious, and to identify mere bluster or assertion. But beyond a perception of genuineness (or the lack of it), the court has no function. It is not helpful to perceive that one party is more likely than the other to succeed, or that the eventual state of the account between the parties is more likely to be one result than another.

The essential task is relatively simple – to identify the genuine level of a claim (not the likely result of it) and to identify the genuine level of an offsetting claim (not the likely result of it).”

39. In Australian Communication Exchange Ltd v Pilot Partners P/L,¹¹ Jackson J said:

“[18]Nevertheless, the requirement that any dispute must be genuine entails that the court must examine the facts alleged to see whether the threshold of a genuine dispute is crossed. Beyond that the court does not go. First, that is what follows from the ordinary meaning of the words ‘genuine dispute… about the existence or amount’ of a debt in s 459H(1)(a) of the CA. Second, s 459H(3) provides that, on the hearing of an application to set aside a statutory demand brought under s 459G, if the ‘substantiated amount’ is less than the statutory minimum the court ‘must, by order, set aside the demand’. The calculation of the substantiated amount requires that any ‘offsetting total’ be subtracted from the ‘admitted total’, but there will not be any ‘admitted total’ unless there is first an ‘admitted amount’ and there is no ‘admitted amount’ if the court ‘is satisfied that there is a genuine dispute between the company and the [alleged creditor] about the existence of the debt’.

[19]An applicant bears the onus of establishing the existence of a genuine dispute on the balance of probabilities. Courts have sought to articulate the nature of the inquiry involved. A recent example in the Court of Appeal of Victoria in Bendigo and Adelaide Bank Ltd v Pekell Delaire Holdings Pty Ltd is as follows:

‘In determining an application under s 459G, the Court’s function is to identify whether a genuine dispute or offsetting claim exists, not to determine any such dispute or claim. This means that the applicant under s 459G is required only to establish a ‘plausible contention requiring investigation’ of the existence of a genuine dispute or claim. The application will fail only if the contended dispute or claim is ‘so devoid of substance that no further investigation is warranted’. The resolution of the application should generally not involve the deciding of disputed questions of fact, but might require determination of short points of law.’

[20]Courts have also sought to articulate what is required by way of evidence to satisfy the court that there is a genuine dispute. A recent example in the Court of Appeal of NSW, Ligon 158 Pty Ltd v Huber, says ‘about the forensic approach to be adopted in s 459G proceedings:

(1)While there must be evidence showing a serious question to be tried or an issue deserving of a hearing that evidence cannot and need not conclusively prove the claim or otherwise be incontrovertible or substantially non-contestable.

(2)The short time allowed by s 459G(2) for the preparation of the affidavit supporting the claim for an order setting aside the demand militates against the presentation of the fullest and best evidence in some cases.

(3)In determining whether there is evidence of a genuine dispute regarding the debt, the court is generally not concerned to engage in an enquiry as to the credit of the deponent of the supporting affidavit. At the same time, it is not required to accept uncritically every statement in the affidavit that is inconsistent with undisputed contemporary documents, is inherently improbable, does not have sufficient prima facie plausibility to merit further investigation or is an assertion of facts unsupported by evidence.

(4)Inconsistent contemporaneous documents are not necessarily sufficient to defeat the company’s challenge even though they might pose difficulties for the ultimate proof of the case that it would advance if the dispute were litigated’.”

40. By reference to established authority, the principles applicable to whether there is a genuine dispute for the purpose of s 459H of the Act have been summarised as follows:¹²for a dispute to be “genuine” it must be “bona fide and truly exist in fact”;¹³“the grounds for alleging the existence of a dispute … [must be] real and not spurious, hypothetical, illusory or misconceived”;¹⁴the dispute must have a “sufficient objective existence and prima facie plausibility to distinguish it from a merely spurious claim, bluster or assertion, and sufficient factual particularity to exclude the merely fanciful or futile . … Something ‘between mere assertion and the proof that would be necessary in a court of law’ may suffice”;¹⁵a genuine dispute may involve a “plausible contention requiring investigation” and raise the same sort of considerations as the “serious question to be tried” test that applies in the case of interlocutory injunctions;¹⁶the Court should not uncritically accept statements about an alleged genuine dispute which are “equivocal, lacking in precision, inconsistent with undisputed contemporary documents … or inherently improbable …”;¹⁷if the dispute appears to be something “merely created or constructed in response to the pressure represented by the service of the statutory demand”, then it is not advanced in good faith and will not be regarded as genuine;¹⁸ andwhilst the underlying nature of the dispute about the existence of a debt “must be exposed”, the Court will not deal with the merits and nothing of substance will be decided.¹⁹

41. As was summarised by Reeves J in Superior IP:²⁰

“[22]… it can be seen from these decisions that, in determining whether or not there is a genuine dispute about the debt claimed in a statutory demand, the Court does not conduct a mini trial, or extended inquiry, in relation to the claims and counter-claims being made by the parties, nor does it, except in an extreme case, determine questions of credit. As well, the Court does not determine the merits of the dispute. Instead what the Court is required to do is to look to the material before it to ascertain whether there is a bona fide dispute that truly exists in fact and the grounds for alleging it are not ‘spurious, hypothetical, illusory or misconceived’.”

The r 389(2) UCPR issue

42. This issue arose before the learned primary judge because of a submission made by the appellant. Some short revision of the facts is required to illuminate the point.

43. On 22 August 2019, the ANZ filed its application to set aside the statutory demand, together with affidavits in support.

44. Four days prior to that the appellant had lodged a complaint with AFCA. Those complaints overlapped with the issues raised by the statutory demand.

45. The ANZ’s originating application was the subject of 12 consent adjournments in total, pending AFCA’s determination of the appellant’s complaint. Adjournment of the originating application was in accordance with AFCA requirements, in particular rule A7.1 of its rules.

46. In each case the adjournment: was by consent;was effected in accordance with r 30, UCPR which provides that “If all the parties to an application consent to an adjournment of a hearing of the application, they may adjourn the application by … filing a consent in the approved form”;the consent adjournment was filed in accordance with the relevant Practice Direction;the effect of the adjournment was to postpone the hearing date for the originating application to a particular set date;²¹the adjournments were primarily to take into account the complaint to AFCA, and AFCA’s requirement that the proceedings before the court be adjourned so that AFCA could continue with a consideration of the complaint;some of the adjournments were made at the appellant’s request, for personal or health reasons; andthe adjournments were effected by a formal act in the court registry, that is to say, the filing of a consent adjournment of application form (form 11).

47. Of the 12 orders, the only exception to the consent order setting a specified date was on 15 September 2021. On that occasion the court calendar had not been set and for that and other reasons the Registry referred the matter to Jackson J. His Honour amended the proposed order to a date to be fixed in the week commencing 7 February 2022. His Honour also made an order as to the costs of each side.²² That ensured the application would be heard in the week commencing 7 February 2022.

48. There is another significance in respect of the order made by Jackson J on 15 September 2021. The order was to adjourn the originating application to a date to be fixed in the week commencing 7 February 2022 and an order was made concerning costs of each side. That his Honour was dealing with a consent adjournment form signed by the parties did not deprive his Honour of the ability to make appropriate amendments if the target date for hearing was compromised in some way. That is what his Honour did. The making of that order, particularly as to costs, was plainly a step in the proceedings.

“5 Philosophy – overriding obligations of parties and court

The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.

Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.

In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.

The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.”

50. It is apparent that the UCPR adopted the procedure in r 30 as a means by which the parties could comply with their obligations under r 5, and thereby satisfy the philosophy under the UCPR of just and expeditious resolution of the issues in the proceeding.

51. Further, it is evident from the terms of r 30 that the consent that is being given and recorded by the filing of the approved form is a consent “to an adjournment of a hearing”. When an application is filed it is given a date for hearing, or at least a process is set in place to give a date for a hearing. So much is consistent with r 5 UCPR.

52. Consequently, when parties utilise the process in r 30 UCPR, they are engaging with the court to alter one factor in the application, namely the date when the court is engaged to hear the application. Because the form is an approved form under the UCPR, and filed in the registry, the step taken between the parties is a step also taken with the court.

53. In Artahs Pty Ltd v Gall Standfield & Smith (A Firm)²³ this Court referred to the issue of what a “step” was for the purposes of the UCPR.²⁴

“[3]The expression ‘step’ is not defined in the UCPR. Its ordinary meaning in this context is: ‘A move or proceedings, as towards some end or in the general course of action; the first step towards peace’. Whether a step has been taken in a particular proceeding will turn on the pertinent circumstances in that case. It is clear from the authorities discussed by Peter Lyons J that, to be a step under r 389 it must, consistent with that word’s ordinary meaning, progress the action towards a conclusion. I agree with Peter Lyons J that it is not necessary the step be something required by the UCPR. For example, the filing and service of a reply or a subsequent pleading would usually amount to a step in the action.”

54. In our view, the filing of a consent adjournment of the hearing of an application, under r 30 UCPR, is plainly a step in the proceeding. The filing of the approved form to register that consent is something which is required by r 30 in order to give effect to the consent between the parties. The consent of the parties is to adjourn the “hearing of the application”, and thus it is a step which effects the due process of the court itself. But for that fact, the hearing date for the application would remain and the court would ordinarily deal with the application on that date.

55. Further, the filing of a consent adjournment under r 30 UCPR signifies that both parties are committing to a step “taken with a view to continuing the litigation between the parties”.²⁵ The parties are to be taken, with the court’s agreement, to be setting a new date for the hearing of the application. That is hardly something that could be described as not continuing the litigation.

56. It is, in our view, significant that the process of filing the 12 consent orders was one taken with the consent of the appellant. In other words, the appellant herself sought to postpone the hearing date of the originating application, for reasons which were of benefit to her either because of AFCA proceedings or because of her own health and wellbeing. In such circumstances, it hardly lies in the mouth of the appellant to complain that the consent adjournments were not a step in the proceeding.

57. In our view, each of the appellant and the ANZ, by their consent orders, took action to ensure that the matter was progressing and a hearing date was set. On each occasion, by a court sanctioned process, they were acting in an expeditious way under r 5(3) UCPR, and within the scope of the facilitating the just and expeditious resolution of the issues, within r 5(1) UCPR.

58. It was therefore unnecessary to make an application under r 389(2) UCPR. The learned primary judge’s conclusion to that effect was, respectfully, correct.

59. Much attention was given before the learned primary judge, and in various grounds of appeal, to the r 389(2) issue. It originated because the appellant emailed the court in March 2022, contending that the ANZ needed leave under r 389(2). That has proved misplaced. So too was the appellant’s reliance upon a decision in ANZ Banking Group v Lawson.²⁶ In that decision the parties were brought before the court because the judge sought to know why the proceeding should not be stayed for want of prosecution. That was the basis of the exercise of discretion. Nothing was said, beyond a comment by way of obiter dicta, as to the correct application of r 389 UCPR.

Appeal against Costs – 18 March 2018

62. The appellant challenges the orders made on 18 March 2018 in appeal CA 4341/22. The substantive part of her contentions relate to the r 389 issue, to which we will come. However, she also raises:illegality in the conduct of the ANZ prior to the statutory demand being served;²⁷ andthat the litigation is in the public interest because it concerns the ANZ’s conduct, contraventions in the past, and insolvency.

63. The orders made on 24 February 2022 were, relevantly:²⁸

“3.Pursuant to r 436(2) of the Uniform Civil Procedure Rules 1999 (Qld), the applicant is granted leave to rely on the Smith affidavit in evidence in support of the application.

4.Pursuant to s 459H of the Corporations Act 2001 (Cth), the statutory demand dated 1 August 2019 served on the applicant by the respondent be set aside.

5.The parties will be heard in respect of costs.”

64. The orders made on 18 March 2022 were as follows:²⁹

“1.Pursuant to rules 371(2) and 389(2) of the Uniform Civil Procedure Rules 1999 (Qld) to the extent necessary:

(a)declare the steps taken by the parties in the proceeding from 15 September 2021 up to and including 7 February 2022 are effectual; and

(b)the parties have leave nunc pro tunc to take further steps in the proceeding.

2.The respondent pay the applicant’s costs on the standard basis of the originating application filed 22 August 2019 to set aside the respondent’s statutory demand dated 1 August 2019.

3.The respondent pay the applicant’s costs on the standard basis of the application filed 24 January 2022 to set aside the subpoenas but limited to the subpoenas to give evidence issued to David Gonski and Shayne Elliott.

4.There be no order as to costs in respect of the application to set aside the two subpoenas to give evidence issued to Michelle Jablko and Jo McKinstray.

5.Subject to further order, the costs order not be assessed until after the determination of any appeals from the orders of this Court made on 4, 7 and 24 February 2022 and today’s orders in this proceeding.”

65. The appellant’s written submissions made no submission as to the costs orders themselves, that is, beyond those referred to in paragraph [62] above. On one view, it may be taken that if the appellant fails in respect of other issues concerning the 18 March 2022 orders, there is no basis otherwise to interfere with the costs orders.

66. As will become apparent, in our view, the learned primary judge made no relevant error in her reasons for the orders made on 24 February 2022, nor on 18 March 2022. In particular, in the present context, the appellant failed in her challenge to whether any step had been taken in the proceedings in the previous two years. Thus, leave to proceed was not required under r 389, nor order under r 371 UCPR.

67. As to the costs ordered on 18 March 2022, the learned primary judge reasoned:³⁰the costs before Boddice J had been reserved, but two of three subpoenas had been set aside by consent, and the third was set aside after argument;the application to set aside the fourth subpoena was set for hearing on 7 February 2022; it was set aside;the appellant had raised that the proceedings were a public policy matter and therefore no order as to costs should be made; however, the litigation was, in truth, an adjudication of private rights between the parties;issues as to the recusal application were separate from the main issue as to the statutory demand;whilst her Honour was not satisfied that there has been an abuse of process in serving the statutory demand, her Honour had found that the ANZ was solvent on the balance of probabilities; however, that did not warrant a special costs order departing from the usual order that costs follow the event; andas a matter of the exercise of her Honour’s discretion, costs should follow the event, in which the ANZ was successful.

68. In our view, nothing raised by the appellant reveals any error in that reasoning. The statutory demand was set aside, the subpoenas were all set aside, and the appellant failed in her challenge to the proceedings being stayed. There is no good reason why costs should not follow the event.

69. Further, the litigation is not a matter that attracts any relevant public interest or public policy. It is private litigation adjudicating on private rights arising out of the service of a statutory demand.

70. In so far as the appeals challenge the costs orders, the appeals fail.

Application for recusal

71. On 14 February 2022 the appellant sent an email to the learned primary judge’s Associate.³¹ It sought the primary judge’s recusal for apprehended and actual bias. The email was 12 pages long and contained at least 80 separate paragraphs which addressed many issues of fact and law. It was copied to the ANZ’s solicitors.³²

72. Relevant parts of the email were as follows:³³

“This email is written with absolute fear and terror that I will be deprived of further natural justice as I was on Monday 7 February 2022, because I am asking a Supreme Court Judge to recuse herself and where I feel that this request may affect the outcome of the decision that has still not been handed down if Her Honour refuses. It is a difficult thing to raise this, but I do so respectfully. I do so as it is a right I have at law.

This is an application for Her Honour to recuse herself, and not force me as a self-represented litigant to make an application for Her Honour to be disqualified from handing down her decision in this matter. It is based on apprehended bias and actual bias. In both cases Her Honour will make the decision about recusal and/or disqualification. It is putting the parties to additional cost should Her Honour decide that this should proceed to an application for disqualification. Her Honour in her decision not to grant me an adjournment raised r 5 of the Uniform Civil Procedure Rules 1999 (Qld) about time and cost of legal proceedings. To force me to make an application for disqualification would not be in keeping with this rule.

…

My application for Recusal³⁴

I would like Her Honour to recuse herself. As I am self represented this should be done by Her Honour instead of requiring me to make a formal application and argue that Her Honour should be disqualified from these proceedings. An informal application for Her Honour to recuse herself is acceptable and this is my application. My application for recusal is based on apprehended bias and/or actual bias as follows:-

…

2.The orders I request Her Honour make are :-

a.That Her Honour be recused from further involvement in these proceedings; and

b.That Her Honour is precluded from handing down any further decision in these proceedings until either this recusal application and/or an application for disqualification of Her Honour is determined; …”

73. Then followed sections dealing with the “Relevant law”,³⁵ and submissions of fact and law under the headings: “No disclosure prior to commencement of hearing”,³⁶“Issues of Apprehended bias and/or actual bias”,³⁷“The Applicant’s solvency”,³⁸“Subpoena set aside for Shayne Elliott”,³⁹“Her Honour did not give the required assistance and or consideration to a self-represented litigant”,⁴⁰“I tried to take other avenues through the Courts …”;⁴¹ and“Background to the settlement and why ANZ settled”.⁴²

74. The email ended:⁴³

“I respectfully ask that Her Honour give serious consideration to this application for her to recuse herself and not make me make an application to have her disqualified as a self-represented litigant.”

75. The learned primary judge dealt with this application on the papers. In other words, there was no hearing at which oral submissions or further written submissions were made.

76. The appellant’s grounds for appeal include many which complain about this application and the process by which it was heard. They include the following:judgment on the main issue of setting aside the statutory demand should not have been handed down where there had been no hearing on the merits on the recusal application;⁴⁴the parties were not told that her Honour had accepted the application for decision or that it would not have a hearing on the merits;⁴⁵that dealing with the application without a hearing on the merits was unreasonable and unjust;⁴⁶in dealing with the application her Honour wrongly had regard to “extraneous evidence” or “extraneous material”;⁴⁷ andher Honour erred in not making disclosure about her relationship with the ANZ, ANZ’s barristers and previous legal firms prior to a hearing on the merits.⁴⁸

77. Finally, in the proposed second amended notice of appeal in CA3513/22,⁴⁹ ground 2(cc) contends there was an error in failing to make a particular disclosure about Herbert Smith Freehills without openly ventilating that at a hearing on the merits.

78. Some matters should be noted before further consideration is given to this issue. The appellant is self-represented but, unlike many other such litigants, is an experienced litigant and advocate. She defended herself in a nine-day trial regarding insolvent trading⁵⁰ and appeared in at least two appeals in this Court.⁵¹

79. In our view, the appellant’s email of 14 February 2022 made it plain that she was seeking to have her application for recusal heard on the papers. Her request for recusal, at the same time urging that her Honour “not force me as a self-represented litigant to make an application”, and urging that it would put the parties “to additional costs should Her Honour decide that this should proceed to an application for disqualification”, leave little doubt as to what was being requested. The appellant was quite explicit in the email, asking for recusal and explaining that as she was “self-represented this should be done by Her Honour instead of requiring me to make a formal application”. Further, the appellant had a section dealing with the orders she requested that her Honour make.

Any basis for apprehended bias

85. Regardless of the way in which the grounds were formulated in the notices of appeal, the appellant’s outline seems to distil the points she wishes to raise. In this respect the appellant has identified the question whether a hypothetical fair-minded lay observer would fear that the learned primary judge might not decide the case on its merits as a consequence of:⁵³her Honour’s experience in various matters as a consequence of being a professional lawyer, when there was no evidence of that before the court; potential to pre-judge the ANZ’s solvency when the ANZ did not have the full set of financial statements in evidence, though they were said to be publicly available; andnot granting the appellant an adjournment after late service of written submissions, thus denying the appellant an opportunity to present the best case she could.

86. To that may be added what the appellant explained as the basis for recusal, namely:⁵⁴the failure to make any disclosure as to whether her Honour or her family had any relationship or association with the ANZ, or close relationships or ex-business partners that still worked for legal firms that retained the ANZ;comments made by her Honour in relation to the process that is applicable in obtaining a credit report, when that was not referred to in evidence; the lack of evidence concerning an additional document attached to the credit report, namely a company search; the ANZ’s submissions stated that the search came with the credit report;that a fair-minded lay observer would apprehend her Honour’s inability to bring an impartial and unprejudiced mind to the question of ANZ’s insolvency because there was not a full set of financial statements in evidence;her Honour’s confusion between the ANZ’s Model Litigant Policy in evidence and the Model Litigant Principles of the court; there was no evidence before the court about the court’s Model Litigant Principles, but there was evidence of the ANZ’s Model Litigant Principles; andapprehension that her Honour might not bring an impartial and unprejudiced mind to the resolution of whether Mr Elliott should give evidence under subpoena.

87. In supplementary submissions filed on 6 October 2023, the appellant also raised the issue of whether the learned primary judge’s conduct at the hearing on 18 March 2022 proved apprehended bias.⁵⁵ These contentions concern an event where the learned primary judge attended at the offices of Herbert Smith Freehills, as a panellist in an event conducted by the University of Queensland, and under the organisation called Women in Law. We shall return to this topic later.

88. The learned primary judge distilled eight matters as having been raised in the informal application for recusal. No criticism has been levelled at her Honour’s analysis in this respect. The categories were:the public were not admitted to a public hearing;no disclosure was made prior to the application being heard;comments regarding an exhibit to an affidavit of Mr Smith;the ANZ’s solvency;setting aside the subpoena addressed to Mr Elliott;failure to give required assistance or consideration in respect of a self-represented litigant;comments in respect of “other avenues” to pursue a claimed debt; andother background matters.

No disclosure prior to the hearing

92. As the learned primary judge recognised, the appellant raised two categories of alleged non-disclosure. The first was whether her Honour needed to disclose whether she held any bank accounts, mortgages or shares in the ANZ. The second was in relation to potential relationships that her Honour had with firms of solicitors and their clients, and counsel retained by those firms. Her Honour noted that the appellant had raised concerns as to the ANZ being a client of Clayton Utz, King & Wood Mallesons and Corrs Chambers Westgarth.⁵⁷

93. As to the first category (bank accounts, mortgages and shares) her Honour considered that no disclosure was required.⁵⁸ In reaching that determination her Honour had regard to the “Guide to Judicial Conduct”.⁵⁹ Part of the guidelines was that a judge should disclose the fact of shareholding in open court, thus giving the parties an opportunity to make submissions in relation to disqualification or otherwise. Given that fact, when her Honour said no disclosure was required, plainly that was based on the fact that her Honour held no shares in the ANZ, or at least none which could realistically be affected by the outcome of the litigation.⁶⁰

94. As to the balance (bank accounts and mortgages) her Honour’s response must be seen in the light of her application of the classic test for apprehended bias as laid down in Ebner v Official Trustee in Bankruptcy.⁶¹ The test is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question in issue. The fair-minded lay observer has attributed to them: (i) an awareness of, and a fair understanding of, the nature of the decision, (ii) the context in which it was made and the circumstances leading up to the decision, (iii) that the judge is a professional lawyer whose training, tradition and oath require him or her to discard the irrelevant, the immaterial and the prejudicial, but not (iv) a detailed knowledge of the law.

95. An application of the test based on the attribution to the fair-minded observer does not include an approach predicated on a fishing expedition about what the judge might have by way bank accounts or mortgages, nor any such thing held by members of the judge’s family. To take that approach is to turn the fair-minded lay observer into a suspicious busybody, fishing for the unknown. That approach is unwarranted. No basis has been shown on the appeal as to why her Honour’s approach in this respect was not correct.

Extraneous material

101. In her written submissions⁶⁴ the appellant identified one of the issues concerning her recusal application and the way it was dealt with, as being that “extraneous material” was taken into account.⁶⁵ It is difficult to understand precisely what the appellant’s complaint is in this respect. An analysis of the outline suggests it includes the following:an additional exhibit to the affidavit of Mr Smith was not referred to in that affidavit or the index of exhibits and ANZ did not lead any evidence about the process that it used to obtain it;⁶⁶ the appellant complains about comments made by the learned primary judge as to that document and in respect of the ANZ’s position that it came with a company search; andthe learned primary judge took into account the court’s Model Litigant Principles but there was no evidence before the court about them; there was evidence of the ANZ’s Model Litigant Principles.⁶⁷

Exhibit to the affidavit of Mr Smith

102. As to the additional exhibit to the affidavit of Mr Smith, the learned primary judge dealt with this in detail.⁶⁸ Central to the objection raised by the appellant below, and before this court, were comments made by the learned primary judge in respect of that document. The central submission made on this point before this court is in paragraph 32f. of the appellant’s outline:

“The fair-minded lay observer with his attributes of knowledge that the Judge was a professional lawyer before her appointment as a judge, would reasonably apprehend that Her Honour might not bring an impartial and unprejudiced mind to the resolution of whether this report is a defect that should have been resolved within the 21 day statutory compliance period to comply with a statutory demand. Especially, where there is no evidence before the Court as to the procedure ANZ Bank used to obtain the company search, or that it had been included in the affidavit by mistake and where Her Honour states the procedure to get both the company search and the credit report was by taking an extra step and selecting a tick box to get the additional credit report comes from Her Honour’s prejudgment from her experience of ordering these reports as a lawyer and not the evidence before Her Honour. Her Honour’s mind was not open to persuasion about this report.”

103. As is apparent from that passage, the appellant was urging that it was a matter of apprehended bias as well as actual bias. However, nothing has been advanced to support a case of actual bias.

104. The facts concerning this document are set out in some detail in the decision by the learned primary judge. This synopsis will suffice for present purposes:

(a)the appellant questioned whether the “additional exhibit” was of such a character that it meant there was no jurisdiction to deal with the application to set aside the statutory demand; because of that, counsel for the ANZ made submissions in respect of the exhibit;⁶⁹

(b)the transcript recording the exchange which is the subject of the appellant’s complaints both below and before this court, is set out in paragraph 66 of the reason below; the essential steps outlined by counsel for the ANZ were that:

(i)commercial providers were available to provide a person with an ASIC report, one of them being InfoTrack;

(ii)the rules required that an applicant to set aside a statutory demand put a company search of itself into evidence;

(iii)the ASIC search was exhibited to the affidavit;

(iv)in addition, a credit report was included; by reason of markings and stamping on the document itself, particularly at pages 612-613, her Honour could infer that when a request for the search was put in with InfoTrack, the total document is what they got back;

(v)the actual ASIC report stated at page 612, the words “end of document”; however, as counsel put it, “but it’s all gone in”;

(vi)at that point her Honour observed that the result was that “this is actually a more complete report than if you’d gone for one that didn’t have this included”;

(vii)because the appellant had complained about its inclusion, counsel for the ANZ had indicated that the ANZ would not read that part of the document; however, the appellant still complained that it should not be in the exhibit; and

(viii)at that point her Honour responded saying that it was difficult to see that “this point actually goes anywhere when that is an entire document”, and the “entire document should be put in unless there’s a reason not to”.

105. The affidavit of Mr Smith deposed that he caused a search to be carried out on the records maintained by ASIC in respect of the ANZ, and that “A copy of the results from that search commences at page 21 of the Bundle”.⁷⁰ The InfoTrack search commences at page 21 of the exhibit to his affidavit,⁷¹ and the company search itself continues for a considerable number of pages. It is apparent from the first page of the company search,⁷² that there were two linking tabs that might be utilised, one to get “Full ASIC Results”, and the other to obtain the “Full Credit Report”. It is then apparent from the next page that the first part of the document is the “ASIC Current Organisation Extract”.⁷³ That document ended at page 632 of the exhibit, which is the page referred to as 612 in the extracts of the transcript.⁷⁴ The document immediately following, commencing at page 633 of the exhibit, was headed “Credit Report”. What is apparent from the explanation given by counsel for the ANZ, and reflected in the documents themselves, is that the credit report was part of the total document which contained the ASIC extracts followed by the credit report. So much is apparent, as counsel for the ANZ pointed out to the learned primary judge, from the page numbering at the bottom of the exhibit, where the ASIC report ended at a page 612 (page 632 of the exhibit) and the credit report commenced at page 613 (page 633 of the exhibit).

106. On the face of that evidence, the inferences that might be drawn from the document itself are those which were expressed by counsel for the ANZ, and adopted by the learned primary judge in explaining how the complete report contained the two component parts. The appellant’s submission to this court that there was no evidence in relation to the credit report should be rejected. Sufficient information was contained in the document itself to draw the inference that the link at the start of the document had been utilised to obtain not only the ASIC extract but also the credit report. The pagination supported those inferences.

107. That is sufficient to reject the appellant’s complaint to this court, concerning comments made by the learned primary judge about ticking boxes to get reports. Moreover, it is significant that counsel for the ANZ took the position that the ANZ would not rely upon the credit report, that being a response to the appellant’s complaints. However, the learned primary judge observed that the complete document (being both the ASIC extract and the credit report) should be tendered as one complete document rather than leave part of it to one side. We respectfully agree with her Honour’s observation. That conclusion by her Honour was appropriate given that Mr Smith deposed that the document he exhibited was the result of the search he caused to be made.

The ANZ’s solvency

110. One of the matters raised in the appellant’s informal recusal application, concerned the impact of a decision adverse to the ANZ on the application to set aside the statutory demand. This is a point that is maintained before this Court.⁷⁵ The way it was put is as follows:

“32.…

(h)The fair-minded lay observer with his attributes would apprehend if Her Honour did decide regarding ANZ’s solvency that it was not done on the merits of the evidence before the Court and had not brought an impartial and unprejudiced mind to the resolution of the question she needed to answer around insolvency. That any decision she makes is not open to persuasion as there was not a full set of financial statements of ANZ Bank in evidence. The piecemealed evidence was incomplete and five months old at the date that it was filed with the court and any decision on insolvency would be by prejudgement that ANZ is solvent as it is not possible on the evidence for Her Honour to do this.

…

47.A decision adverse to ANZ Bank in the primary proceedings and now the appeal leaves ANZ Bank presumed insolvent for 3 months. This is adverse to Thomson’s prospects of success. A Court will not want to be placed in a position to make a decision of that magnitude even if that decision is open to it, because ANZ Bank has inflicted this injury on themselves and the clumsiness of trying to stanch their wounds has made it worse.”

111. One again, the appellant frames her case both on the basis of apprehended bias and actual bias. However, nothing has been put forward which would suggest that her Honour had a closed mind or prejudged any issue. Any issue of actual bias can be put aside.

112. The foundation for the appellant’s attack on this point, both below and before this Court, related to comments made by the learned primary judge in the course of the hearing regarding the question of solvency of the ANZ, including inquiring whether the appellant was relying on evidence that the ANZ was not able to pay its debts as and when they fell due.⁷⁶ The relevance of the point is in relation to paragraph 2 of the ANZ’s application to set aside the statutory demand. The first order sought was an order under s 459H of the Corporations Act, setting aside the statutory demand. Paragraph 2 sought an order in addition or in the alternative, under s 459J(1)(b) of the Corporations Act, that the statutory demand be set aside. Section 459J relevantly provides:

“Setting aside demand on other grounds

(1)On an application under section 459G, the Court may by order set aside the demand if it is satisfied that:

(a)because of a defect in the demand, substantial injustice will be caused unless the demand is set aside; or

(b)there is some other reason why the demand should be set aside. …”

113. The “other reason” relied upon by the ANZ was that the ANZ was, at all relevant times, solvent and the appellant was aware of that. In the circumstances, it was contended, the serving of the statutory demand was an abuse of process or the subversion of the statutory regime under the Corporations Act.

114. The learned primary judge set out the appellant’s complaint made at first instance:⁷⁷

“[72]The complaint made by the respondent in this regard is stated in the email as follows:

‘32.In the hearing of an application to set aside a creditors statutory demand made against ANZ, one of Australia’s big four banks, it would be difficult for any Judge to approach the hearing without a prejudgment that the Bank is solvent. But this prejudgment would be based on information obtained prior to entering the Court room through media, holding bank accounts with ANZ, loans being entered into between ANZ and the Judge, possible share ownership in ANZ and experience as a solicitor working for legal firms where ANZ is a client.

33.The only way that this prejudgment could not exist is for the Judge to come to the hearing with an open mind to base the decision solely and only on the evidence before the Court, and not take into account experience and knowledge that Her Honour gained through the media, being associated in some way with ANZ through a bank account, loan or shareholder and as a solicitor and the law’.”

115. Having observed that the ANZ had filed and served evidence on which it relied to establish the ANZ solvency for the purpose of raising the ground under s 459J(1)(b), the learned primary judge noted the conclusion advanced by the appellant below:⁷⁸

“[75]Further, the respondent concludes:

‘47.The fair-minded lay observer with his attributes would apprehend if Her Honour did make a decision in regard to ANZ’s solvency that it was not done on the merits of the evidence before the Court and had not brought an impartial and unprejudiced mind to the resolution of the question she needed to answer around insolvency. That any decision she makes is not on the incomplete set of financial records but on a prejudgement that ANZ is solvent. It is not possible on the evidence for Her Honour to do this’.”

116. As will be apparent, the point advanced before this Court is essentially identical to the point advanced below. In our view, the point lacks merit for a number of reasons.

117. First, what is plain from the submission made below as well as the submission made before this Court, is that there is no factual basis for what is advanced. It amounts to mere assertion that any judge would find it difficult to approach the hearing of an application to set aside a statutory demand made against a bank, or to consider the issue under s 459J(1)(b), without some form of prejudgement. It is rank speculation without foundation. So much is evident from the suggestion that the prejudgement would be based on media reports, the holding of bank accounts, having loans from the bank and possible share ownership. There is not the slightest suggestion that the learned primary judge fitted into any of those categories.

118. Then, the appellant also includes “experience as a solicitor working for legal firms where ANZ is a client”. That falls well short of any rational basis that a fair-minded lay observer might have for concern over the judge’s approach to the issues. The fact that a solicitor worked in a legal firm which acted for a bank does not mean that the particular solicitor acted for the bank, and even if it did, that the solicitor who then later became a judge was unable to bring an impartial mind to the issues.

119. Secondly, the suggestion that the fair-minded lay observer would apprehend a decision on the ANZ’s solvency would not be on the merits of the evidence because the financial records in evidence were incomplete, is nonsensical. If the evidence was truly incomplete, all the fair-minded lay observer would apprehend is that the judge would make a decision based upon the evidence adduced in court. If it was incomplete in a material way, that might impact upon the ability to reach a conclusion. But the fair-minded lay observer would think no more than that. In our view, it is not the case that the fair-minded lay observer would go further to apprehend that the judge would disobey the duty to decide the matter appropriately on the evidence adduced.

120. Thirdly, the fact that the learned primary judge inquired, relevant to the issue under s 459J(1)(b), whether the appellant was relying on evidence that the ANZ was not able to pay its debts as and when they fell due, does not raise any question that would trouble the mind of a fair-minded lay observer. Given that the ANZ was advancing a contention that the appellant was aware of the bank’s solvency, with the consequence that her service of a statutory demand was an abuse of process, that would obviously prompt any judge to ask a person in the appellant’s position whether they were relying on evidence of an inability to pay debts as and when they fell due, the classical definition of insolvency. The question does not give rise to any apprehension that a judge cannot bring an impartial and unprejudiced mind to the issues in question.

Failure to give assistance and consideration to a self-represented litigant

122. This was an issued raised before the learned primary judge, and again before this Court. In framing the issue before this Court, the appellant submits:⁷⁹

“Whether Williams J erred in not providing [the appellant] as a self represented person adequate time to respond to submissions and applications served on her at short notice and on the morning of hearings.”

123. The appellant’s contentions relate to the hearing on 18 March 2022. Her concerns relate to service that morning of an application under r 389(2) and r 371 UCPR, to regularise steps taken without leave. As it was put in the appellant’s outline:⁸⁰

“41.On the morning of 18 March 2022 ANZ Bank served [the appellant] with an application under r 389(2) and r 371 of the UCPR to regularise the steps taken without leave approx. one hour prior to the commencement of the costs hearing. ANZ Bank filed it with the Court at the commencement of the hearing and asked Williams J to make a timetable for the hearing of this application if she so was of the mind to. [The appellant] made submissions that the late service prevented her as a self-represented person from making submissions without adequate time to do so. Williams J raised herself that ANZ Bank could make this application without notice under the UCPR and proceeded to hear this application and made orders requested by ANZ Bank without the orders she made on 24 February 2022 being set aside.”

124. The learned primary judge dealt with the issues raised on this point on the basis of an analysis of what occurred at the hearing on 18 March.⁸¹ Her Honour’s findings about the sequence of events and what was said are not the subject of any challenge on appeal. Significant aspects include the following:the hearing commenced at 10.00 am and proceeded until about 12.30 pm, when it was adjourned until 2.30 pm; it then resumed and concluded at 5.20 pm; as her Honour observed,⁸² the hearing occupied five and a-half hours, well in excess of the usual length of matters in the application list;the appellant was given the opportunity to make submissions and take the court to material to which she wished to refer;⁸³the appellant’s concerns about being able to deal with submissions by the ANZ was the reason the matter was adjourned at 12.30 and resumed at 2.30;⁸⁴ at that point the appellant made an application for the matter to be adjourned, which was refused; andone of the concerns raised by the appellant below, but not before this Court, concerned reference to a case by counsel for the ANZ; that led to a submission concerning apprehended bias; her Honour dismissed that submission.⁸⁵

125. Before this Court the appellant refined her contentions to matters relating to the ANZ’s application under r 389(2) and r 371 UCPR.⁸⁶

126. In order to evaluate this issue, some background facts need to be established. These relate to when the appellant was aware of an issue concerning r 389(2) UCPR and whether it might be concluded that she was in a position to deal with the argument on 18 March 2022.

127. On 15 March 2022 the appellant sent an email to the associate of Boddice J, entitled “URGENT Breach of r 389(2) UCPR”.⁸⁷ The relevant points made in the email are as follows: on 6 March 2022 the appellant became aware “that ANZ bank were required pursuant to r 389(2) of the Queensland UCPR to apply for an order to take a step in the proceedings because it had not taken one for more than two years before it made its application to set aside the subpoenas”;the ANZ neither applied for such an order, nor made the appellant aware that it was required to do so;the appellant referred to the decision in ; she set out the essential facts, observing that they are “identical” to the facts of her matter;she referred to the 12 consent adjournments, and the fact that they were made because of AFCA’s requirements;she observed that: “The only steps that were taken in these proceedings during that two year and four month period was consent to adjournments filed”; she argued “They did not progress the matter because AFCA rules do not permit any step being taken in the proceedings whilst the complaint is before AFCA”;she noted that the decisions made by Boddice J and Williams J in February 2022 “should not have been heard until an application pursuant to r 389(2) of the UCPR had been made”, and no such application had been made;she had written to the learned primary judge and “advised her that the costs hearing this Friday could not proceed as she has no jurisdiction to hear any arguments because no application was made pursuant to r 389(2)”;she observed that she had, that day, been served with an affidavit and submissions in regard to r 389(2) by the solicitors for the ANZ;citing , the appellant contended that no arguments could be advanced in regard to any new application if an application had not been made under r 389(2);further, by reference to , that no step could be taken after two years without an order of the court, and there was no exception to that; andshe urged Boddice J to assist her by assisting Williams J in relation to the law in respect of r 389(2).

“Could Her Honour please provide me with the law that she believes permits Her Honour to proceed on Friday when no application pursuant to r 389(2) was made to the Court prior to the substantive judgment being handed down on 24 February 2022 and to the other judgments made on 4 February 2022 and 7 February 2022.”

132. It is in that context that the matter came before the learned primary judge on 18 March 2022. That sequence of correspondence provides an important context in which the various events on 18 March must be seen.

133. In our view, the suggestion that, in the circumstances, the learned primary judge did not provide the appellant adequate time to respond to submissions and applications on the morning of 18 March 2022, must be rejected. There are several reasons for that conclusion.

134. First, the appellant became aware of the issue concerning r 389(2) on 6 March 2022, twelve days prior to the hearing of the application. By 7 March the appellant was able to articulate the requirement for leave and seek support from Lawson. In fact, the appellant said it was that decision which had alerted her to the need to apply to leave.⁹⁷ By 15 March the appellant was able to develop an argument concerning the application of rule 389(2), supported by case law, that contended the consent adjournments were not steps in the proceeding. By 16 March (a Wednesday) the appellant was able to email the learned primary judge’s associate alerting to the issue that no application under r 389(2) had been made.

135. Plainly, the appellant was in a position before 18 March 2022 to respond to the application made by the ANZ, which she received on 15 March 2022.

136. Secondly, what was advanced on 18 March 2022 by counsel for the ANZ was the application and submissions which she had already received several days before. Thus, the proposition that the consent adjournments qualified as steps in the proceedings was not new to her on 18 March 2022, nor was the prospect of an application under r 371. The learned primary judge was also conscious of the fact that the issues had first been raised by the appellant.⁹⁸

137. Thirdly, the appellant was in a position to advance written submissions on 18 March 2022, they being dated the previous day.⁹⁹ That included detailed submissions about the impact of not having leave pursuant to r 389(2), and by reference to authority.

138. Fourthly, on 18 March 2022 the learned primary judge held that the 12 consent adjournments, but in particular the final adjournment subject to the order by Jackson J, were steps within the meaning of r 389(1), with the result that r 389(2) did not apply.¹⁰⁰ Thus, the question of whether leave should be granted did not arise, nor did the question of the application of r 371. The application that invoked both of those sections was resolved on a basis that had been foreshadowed days prior to that hearing, with the appellant contending that leave was required, and the ANZ contending it was not because the consent adjournments were steps in the proceedings.

Exercise of discretion to refuse adjournments

141. Ground 2(u) in the amended notice of appeal contends that there was an error by the learned primary judge in not granting an adjournment to the appellant to have time to consider the ANZ’s written submissions, “provided to the Appellant with insufficient time for her to consider and respond to them at the hearing of the substantive application”.

142. This is identified as an issue within the scope of not providing a self-represented litigate adequate time to respond.¹⁰¹ This point is not developed further in the written submissions but is included in the supplementary submissions dated 6 October 2023.¹⁰²

143. The appellant’s complaint relates to the conduct of the hearing on 7 February 2022. The learned primary judge has set out the essential matters in the reasons below, in a way which is not the subject of challenge by the appellant:¹⁰³

“[91]The hearing commenced at approximately 10.00 am and proceeded until approximately 12.30 pm. It reconvened at 2.30 pm and concluded again at approximately 5.20 pm. As a result, the hearing occurred in a period of just under five and a half hours. This time is significantly in excess of the two hour provision for matters heard in the applications list.

[92]Given that an interlocutory application and the originating application were being dealt with and that there were numerous voluminous affidavits, some in multiple large parts, there was confusion at times as to what documents were being referred to. The applicant was given an opportunity to make submissions and take the Court to the material that she wanted to refer to and rely on in the affidavits over the course of the hearing.

[93]At the hearing the respondent indicated she was unable to immediately deal with the submissions by the applicant in response to the concerns she raised in respect of the affidavits. The matter was adjourned at approximately 12.30 pm to provide an opportunity for the respondent to consider the submissions and material that had been provided to her that morning, and to accommodate the hearing of another matter at 2.00 pm. Upon the resumption of the hearing at 2.30 pm, the respondent made an application for an adjournment. The application was refused and reasons given. My reasons have been included in the daily transcript received from Auscript and appear at Tl-53 line 24 to Tl-56 line 4.”

144. Her Honour’s reasons for refusing the adjournment appear in the transcript for 7 February 2022.¹⁰⁴ Her Honour made the following points: the application to set aside the statutory demand had been filed on 22 August 2019, together with two affidavits;at the end of the complaints process before AFCA, the appellant had filed a very substantive affidavit sworn on 13 January 2022; amongst the voluminous documents exhibited to the affidavit included correspondence dating back to December 2021 in which the appellant raised deficiencies in the affidavits that were filed in support of the originating application;the appellant’s complaints about the supporting affidavits were rehearsed in the hearing on 3 February 2022 before Boddice J;the hearing on 7 February 2022 was to deal with the substantive application to set aside the statutory demand; notwithstanding that, counsel for the ANZ provided further submissions addressing the complaints about the supporting affidavits, and they were addressed in oral submissions as well;at 12.30 on the day of the substantive hearing, the learned primary judge called upon the appellant to respond to the issues she had raised in respect of the affidavits; at that point the appellant indicated that she had not had an opportunity to review the written submissions, and having received them only that day, and having travelled to Brisbane to attend the court;consequently, the matter was adjourned until 2.30 pm to give the appellant the opportunity to review the material and submissions, which had been made in response to matters raised by her on 17 January 2022; andat 2.30 pm the appellant said she was not in a position to respond; she was asked if she was making an application to adjourn and she said she was; the ANZ opposed the adjournment, relying on submissions which it had made that day.

145. The learned primary judge then expressed her reasons for refusing the adjournment in these terms:¹⁰⁵

“Ms Thomson’s submissions seemed to accept that these matters that she has identified in respect of the affidavits are irregularities. Further, Ms Thomson acknowledges that the court rules include a provision which enable the court to grant leave in respect of any irregularity that is determined. It appears that the real distinction between the parties is whether the irregularity needed to be resolved by way of leave being granted or an application for leave prior to the expiration of the 21-day period. Ms Thomson’s submissions following these issues being raised have been limited; however, she has had the ability to be able to grapple with these – the subject matter of these submissions, both in her written outline and also before the court.

Whilst I appreciate that it is difficult for a litigant in person to be able to deal with all matters as they are raised as the court proceeding progresses, these issues were first raised by Ms Thomson and again raised in detail in her submissions on Friday. The material that has been put before the court today steps through the various court rules and regulations and provides the legal framework for the affidavits and the requirements for the affidavits. In the circumstances, I consider that there is no need for an adjournment of the proceedings as the matters are properly ventilated in the materials that have been filed before the court and Ms Thomson has already been given an opportunity today to be able to consider anything which was raised in addition to that which had previously been provided to her.

In the circumstances, I consider that it is not consistent with the obligation in rule 5 of the UCPR that the matter be dealt with in the most efficient and expeditious way. If the matter were to be adjourned, it is unlikely that there would be any significant difference in the material that is put before the court in respect of these issues given the detailed submissions that have already been prepared by Ms Thomson. In the circumstances, the application for an adjournment is refused.”

146. As can be seen the learned primary judge refused the adjournment for the following reasons:the appellant had had the ability to grapple with the issues both in written submissions and in oral submissions before the court;the issues were first raised by the appellant, and again in detail in her submissions;the material which had been put before the court on 7 February 2022 simply stepped through the various court rules and regulations, providing a legal framework for the affidavit;the matters had been properly ventilated in the material that had already been filed in the court, and the appellant had already been given an opportunity to consider anything which had been raised in addition to that which had been previously provided to her; andif the matter were to be adjourned it was unlikely there would be any significant difference in the material put to the court in respect of those issues, given the detailed submissions that had already been prepared by the appellant.

147. In our view, it cannot be demonstrated that the learned primary judge erred in refusing the adjournment, either on the basis that insufficient assistance was given to a self-represented litigant, or on the basis that an error of the type in House v The King¹⁰⁶ was made. The appellant had a fair opportunity to present her case and counter that of the ANZ, particularly bearing in mind that the hearing was not a trial. She had filed numerous affidavits between 10 September 2019 and 7 February 2022, and filed lengthy and detailed written submissions. No principle of law holds that a self-represented litigant is entitled to more than that.¹⁰⁷

148. What the learned primary judge encountered, and her reasons reflected, was what has occurred before this Court on the appeals, namely that the appellant has a prodigious ability to articulate and argue points, whether factual or legal.

149. Further, nothing has been identified by the appellant as being material that she would have advanced had time been given to her, that either was not advanced at the time, or before this Court.

150. The ground based on failure to grant the adjournment lacks merit.

Setting aside the subpoena addressed to Mr Elliott

151. This issue arises in relation to an application to set aside a subpoena addressed to a Mr Elliott. The learned primary judge made an order setting aside the subpoena. However, the appellant’s complaint at first instance and before this Court related to issues in relation to the ANZ’s “Model Litigant Principles”. This is evidently a reference to a document exhibited by the appellant to one of her affidavits, entitled “ANZ’s Dispute Resolution Principles and Model Litigant Guidelines”.¹⁰⁸

152. Before this Court the contention raised by the appellant is expressed as follows:¹⁰⁹

“32…

(i)[The appellant] raised ANZ Bank’s Model Litigant Polices contained in her evidence and Williams J confused these with the Model Litigant Principles of the Court and didn’t ensure ANZ Bank conducted themselves in accordance with them.

(j)The fair-minded lay observer would reasonably apprehend with his attributes of knowledge that the Judge is a professional lawyer, where there is no evidence before the Court about the Court’s Model Litigant Principles but there is evidence of ANZ’s Model Litigant Principles before the Court, would apprehend that Her Honour might not bring and impartial and unprejudiced mind to the resolution of whether Mr Elliott should give evidence under the Subpoena in accordance with ANZ’s model Litigant Principles it has agreed to be bound by.”

153. Paragraph 32(j) of the appellant’s outline is the same as the complaint made at first instance.¹¹⁰ Just as there was at first instance, there appears to be confusion on the appellant’s part as to how it is said that the ANZ was not complying with its Model Litigant Guidelines. The learned primary judge identified point 15 in the Guidelines, which provides:¹¹¹

“If litigation cannot be avoided, minimise the impact to the customer and ANZ by:

a.Taking steps to clarify and narrow the issues in dispute.

b.Not requiring the other party to prove a matter that ANZ knows to be true.

c.Not contesting liability if ANZ knows that the dispute is really about quantum.

d.Avoiding unnecessary delays.

e.Monitoring the progress of litigation and using appropriate methods to settle or resolve the matter.

f.Ensuring that any person negotiating a settlement on behalf of ANZ has authority to reach agreement.

g.Not undertaking or pursuing an appeal unless there are reasonable prospects of success.”

154. As the learned primary judge observed,¹¹² the objectives behind point 15 are similar in a number of respects with the objectives and purpose of rule 5 UCPR, namely the just and expeditious resolution of real issues at a minimum of expense. However, that still does not illuminate precisely what the appellant complains about.

155. The appellant contends that the learned primary judge confused ANZ’s Model Litigant Guidelines with the court’s “Model Litigant Principles”. Like the learned primary judge, we are unable to discern what that refers to, unless it is the principles and obligations under r 5 UCPR. The appellant makes the point that there was no evidence before the court about the court’s “Model Litigant Principles”, but that may well be because they do not exist except in the form of the UCPR.

156. We are unable to comprehend how it might be said that a fair-minded lay observer would reasonably apprehend that the learned primary judge might not be able to bring an impartial and unprejudiced mind to the issue of whether the subpoena to Mr Elliott should be set aside. How that issue arises by reference to the ANZ’s Model Litigant Guidelines is more than opaque.

157. Reference to the transcript of the hearing on 18 March 2022 does not bring any particular enlightenment. The appellant made reference to the Model Litigant Guidelines in arguing against an order for costs, saying that under the Model Litigant Guidelines the ANZ was not to pursue anybody for anything that they knew the person could not pay.¹¹³

158. Reference to the appellant’s written submissions advanced on 18 March 2022¹¹⁴ take the matter no further. No reference was made in them to the ANZ’s Model Litigant Guidelines, or, for that matter, the “court’s Model Litigant Principles”.

159. In the reasons below, the learned primary judge refers to the appellant’s email dated 14 February 2022, by which she made an informal application for recusal.¹¹⁵ That email contained several paragraphs which referred to the ANZ Model Litigant Guidelines,¹¹⁶ but these did not seem to advance the matter any further:¹¹⁷

“55.I also stated that ANZ agree to abide by their own Model Litigant Principles, where Her Honour then made comments about Model Litigant Principles of the Court that were unrelated to ANZ’s own Model Litigant Principles which are exhibited to my affidavit sworn 13 January 2022 at page 630. Her Honour was relying on her own knowledge and prejudgment of the Court’s Model Litigant Principles and not the ANZ’s own. Her Honour acted on her own prejudgement and set aside the subpoena and did not make Mr Elliott adhere to ANZ’s Model Litigant Principles.

56.By making her opinions about the Court’s Model Litigant Principles and without referring to ANZ’s model litigant principles and experience as a lawyer known Her Honour is more likely than not going to apply these instead of giving the matter fresh consideration on the actual evidence and arguments relevant to this particular case, because there is no evidence before Her Honour that supports the Model Litigant Principles that ANZ have agreed publicly to adhere to are their own and not the Court’s Model Litigant Principles.

57.The fair-minded lay observer would reasonably apprehend with his attributes of knowledge that the Judge is a professional lawyer, where there is no evidence before the Court about the Court’s Model Litigant Principles but there is evidence of ANZ’s Model Litigant Principles before the Court, would apprehend that Her Honour might not bring and impartial and unprejudiced mind to the resolution of whether Mr Elliott should give evidence under the Subpoena in accordance with ANZ’s model Litigant Principles it has agreed to be bound by.”

160. Nothing in those paragraphs could possibly give rise to an apprehension in the fair-minded lay observer that the learned primary judge could not bring an impartial and unprejudiced mind to the issues in question.

161. This point fails for lack of merit.

Consideration – genuine dispute about the debt?

162. In order to consider whether the learned primary judge was in error in setting aside the statutory demand some analysis of the relevant facts is necessary.

163. As noted above the statutory demand claimed $2,832,378 as being payable by the ANZ to the appellant pursuant to an alleged agreement. That agreement was said to comprise two components:on 22 March 2018, to pay the three creditors of the appellant, namely Tremco PWA and Thomson Lawyers the sum of $1,052,000; andon 12 October 2018, to pay the appellant a further $1,780,378 by way of a “cash payment” in respect of a longstanding dispute between the ANZ and the appellant.

164. The essential facts relied upon by the appellant to establish the debt are set out in the reasons below.¹¹⁸ They are summarised below, noting where they are disputed by the ANZ.

165. The Thomson Family Trust refinanced from National Australia Bank to the ANZ in 2008. The facilities it transferred to the ANZ was a loan over a commercial property, a business loan and an overdraft facility.

166. The Thomson Family Trust sold the commercial property in or about September 2009, with settlement in October 2009. Two days before settlement the ANZ advised that the Thomson Family Trust could not keep the $50,000 surplus funds from the sale after payment of the mortgage.

167. Negotiations led to the ANZ agreeing to place the $50,000 into a fixed deposit, whilst an assessment was undertaken of how the release would impact the Thomson Family Trust’s financial position with the ANZ.

168. Between 2009 and 2018 the appellant and the ANZ engaged in negotiations about the dispute between them.

169. On 22 March 2018, Mr Steinberg and Ms Ford of the ANZ met with the appellant.

170. On 22 March 2018, the appellant emailed Mr Gnaden of the ANZ and stated in a letter:

“ … Wayne and I refer to the meeting we had with Mr Ben Steinberg, head of commercial lending at ANZ and Lara Ford today. I have sent this to you as per our previous meeting for you to onforward to Ben. Time is of the essence as you are aware.

Ben has invited us to put forward a counteroffer, to the settlement offer that he made on behalf of ANZ to Wayne and I today.

26.The counteroffer we wish to make to ANZ at the invitation of Ben Steinberg is:

(a)ANZ will not enforce the personal guarantees that Wayne, Peradena Pty Ltd and I gave to ANZ for Kadoe Pty Ltd (in liquidation) in its own capacity and in its capacity as trustee of The For Three Trust and discharge the second mortgage on 26 Bellanboe Circuit, Pelican Waters; and

(b)ANZ forgive the balance on the Holden Commodore …

(c)ANZ reduce the balance of the mortgage on the property at 26 Bellanboe Circuit, Pelican Waters to $300,000.00; and

(d)ANZ pay to us the sum of $4,225,756.00 within 7 days from the date of acceptance of this offer by ANZ, in full and final settlement of the damages we have sustained arising from ANZ’s breaches of the AMLCTF Act and the compensation payable as a result of those breaches;

(e)That this settlement is subject to a suitably worded deed of release and indemnity;

Time is of the essence with the commencement of trial in the Tremco matter due to commence on 16 April 2018. We need to negotiate any settlement amount and have the ability to pay that from the compensation the subject of the settlement offer.

…

We look forward to receiving your acceptance of this offer by return. Please feel free to give me a call if you need clarification of anything in this letter or wish to discuss the terms of settlement further.”

171. On 26 March 2018, the appellant emailed Mr Elliott about the meeting on 22 March 2018 and attached a letter which relevantly stated:

“I have attached a copy of the counteroffer we have made for your information. The initial settlement offer we made was set out in detail as to how we had derived at the settlement amount …

… At ANZ’s request the amount of the settlement we require has been reduced down from where it should rightfully be, I respectfully ask that agreement to this remediation and acceptance of our counteroffer is accepted by no later than 4:00 pm on Wednesday 28 March 2018, so that myself and my family can go into Easter with peace of mind in regard to our future.”

172. On 27 March 2018, Mr Gnaden of the ANZ emailed the appellant, copied to Ms Ford, in response to the counteroffer as follows:

“… Regarding your counter offer in paragraph 26, ANZ rejects that offer. ANZ remains of the view that its acceptance of the Trust Deed did not cause you any loss.

As a final attempt to reach an amicable resolution, and taking into account your financial difficulty, ANZ is prepared to settle in terms set out in paragraphs (a), (b), (c) and (e) of your counteroffer. In relation to paragraph (d) of your counteroffer, ANZ is not prepared to pay any compensation to you.”

173. The ANZ contention below was that nowhere in this correspondence between the appellant and the ANZ is there a reference to an agreement having been reached on 22 March 2018, nor is there any identification of particular sums in the statutory demand, namely $972,000, $50,000 and $30,000. Further, the ANZ submitted that the usual effect of a counteroffer by one party is to reject a previous offer by the other.¹¹⁹

174. As the learned primary judge held, the email of 27 March 2018 expressly rejected the counteroffer made by the appellant on 22 March 2018: see paragraph [170] above.

175. Then, in October 2018 the parties continued their interaction.

176. On 12 October 2018 the appellant met with Mr Steinberg, Mr Elliott and Ms George of the ANZ.

177. On 15 October Mr Steinberg emailed the appellant stating:

“… During the meeting, Mr Elliott suggested that you and ANZ have a different view of the facts and issues regarding the Trust issues and that we are unlikely to reach an agreement on these issues. Mr Elliott also suggested that we therefore concentrate our efforts on a way forward and on possible resolution recognising we will not agree on the Trust issues.

I therefore wish to confirm the proposal we put which is as follows.

ANZ has suggested that you retain a suitably qualified advisor to advise you on your position with Tremco and ultimately to agree a compromise payment to them in full and final settlement of the judgment debt that they currently have against you which is circa $370,000 plus costs. Should you reach an agreement on a reasonable payment in full and final settlement the provided such payment is no more than $50,000, ANZ will agree to make this payment on an ex gratia basis ie we will not seek to recover it from you. …

ANZ’s offer in respect of it’s [sic] facilities remains open to you for acceptance. That is – ANZ offers to forgive the entire business debt owing (circa $500,000) and to reduce the amount owing on your home loan from its current balance in excess of $500,000 to $350,000 on the basis that you demonstrate capacity to service the $350,000. If you are unable to demonstrate capacity to serve the $350,000 then ANZ will consider reducing the home further to an amount that you demonstrate is serviceable (usual documentation will need to be provided to demonstrate service ability).

…

If you agree with this path forward, please can you arrange the appointment of your selected advisor and preparation of a scope letter.”

178. On 16 October 2018, the appellant responded by email to Mr Steinberg. The appellant summarised her understanding of the ANZ’s “proposal dated 15 October 2018” and also set out her five-page “counter proposal”, including:

“Your proposal dated 15 October 2018

… ln regard to your offer yesterday I state as follows:

a. Your offer made at the meeting on Friday included issues other than just negotiating a settlement for $50,000.00 with Tremco. The Tremco proceedings included third party proceedings involving the negligent accountant. You previously asked me try and organise a settlement conference to try and settle the third party proceedings. They refused.

b. You never made any representation on Friday that you would cap any settlement with Tremco at $50,000.00, and if more than that, you reserved the right to pursue me personally for any additional amount that you paid to Tremco. This was never discussed at the meeting last Friday.

…

e. After speaking with David Neve yesterday and Leon over the weekend, they both advised that you were made aware by them that there may be some legal issues that need to be determined before we can get to whether ANZ are required to pay compensation for loss and damage. This has been excluded from your offer yesterday.

Counter Proposal

i. That ANZ agree to use the existing independent report from Marilyn Barnes, that goes to the viability of the trust whilst it traded up until 30 June 2013. This would reduce the amount required to determine whether ANZ has any liability and if so what loss and damage arises from this liability.

…

v. Shayne made it very clear in the meeting last Friday that he does not wish to look backwards. He also made representations to the Economics Committee last Friday that he would take full responsibility for all customers he had done wrong by. The only way that Shayne can be informed as to whether he needs to take responsibility for our matter is for the full investigation to be undertaken as outlined above.”

179. Notably, that response does not refer to any agreement having been reached on 12 October 2018. Further, there is no mention of any specific sum of $1,780,378, that being the amount alleged to have been agreed on 12 October 2018, by way of a “cash payment”.

180. The ANZ contended below that if it had unconditionally agreed to pay the amount of $1,780,378 to the appellant, it is likely that the appellant would have mentioned this in her email. Further, the ANZ submitted below that it is not consistent with the language used in the email response that there was a concluded agreement.

181. On the hearing of the application to set aside, the ANZ contended that subsequent conduct is admissible to determine whether or not an agreement was, in fact, reached.¹²⁰ To that end it relied on the following exchanges between the parties in October 2018.

182. Later, on 20 October 2018 the appellant emailed another person, copying the email to the ANZ saying:¹²¹

“On 12 October 2018 l met with Shayne Elliott, CEO of ANZ, Alexis George, Deputy CEO of ANZ and Ben Steinberg. Agreement was reached on that day for an independent person to be appointed at ANZ’s expense to bring Tremco to the table for settlement negotiations, where ANZ have agreed they will pay that settlement. There has been a sticking point to this agreement now, as ANZ do not like the person I wish to have do this. … These negotiations as to this person has stalled here.

…

ANZ have asked me to approach you direct and negotiate a settlement that ANZ will pay on the basis if I am bankrupt Tremco will get nothing. Except I am not in a position to do that because a full and final settlement has not been negotiated between myself and ANZ and I will not have ANZ construe that by my conduct of approaching you that I have accepted an offer that I have rejected outright, except for ANZ reaching a settlement with Tremco.”

183. The ANZ responded by email on 21 October 2018, and informed the appellant as follows:¹²²

“I must make some points clear as you either misunderstand or misinterpret:

* ANZ suggested 4 Brisbane based advisors and gave you an option of selecting … Your note below inaccurately says that we want you to use PWC. That said - if you do not want to use PWC - that is fine with us. Choose one of the other 3 firms we suggested or David Neve. Our negotiations have not stalled on your selection of advisor. You are free to choose your own advisor and for the record ANZ will work with David Neve, if you select him as your advisor. My email dated 15 October says ‘The appointment of advisor is a matter solely for you’. So please do not misinterpret our messages to you, which are designed to resolve our issues constructively.

* Our offer was for your advisor to conduct negotiations with Tremco, not for ANZ to do this.

* Finally, the offer we put to you in my email dated 15 October 2018, then repeated very clearly in my email dated 18 October 2018 is offered on the basis of an all in settlement. It is not available to you to agree to the part where we offered to help by funding an agreed (compromised) payment to Tremco without accepting the balance of the proposal. It is a package. An opportunity to settle all those matters - not just one that you select. May I suggest that you ask someone else to read those offers so that you understand them with clarity and with the goodwill they are intended.”

184. The appellant responded to that email on 21 October 2018, including:¹²³

“In regard to Tremco, it makes no difference to me whether you pay Tremco out or not. Tremco have been provided with evidence last year that I have no money whatsoever to satisfy any judgment and/or adverse cost order. The outcome for me is still the same regardless of whether you meet the commitment that was given to me on 12 October 2018 that ANZ would negotiation a settlement with Tremco. The only party impacted by your decision is Tremco. You were going to pay them out and now you are not until I accept the settlement offer currently on the table. You were told in February 2018 that this settlement was not sufficient. It is still not sufficient and you are seeking to have me accept this by using the pressure of the appeal being heard on 23 October 2018. This is financial control being used by ANZ to have me comply with its wishes instead of ANZ honestly and integrally assessing my families [sic] situation and an appropriate amount of compensation paid to my family.

…

With the settlement offer that is on the table there is absolutely no reason for ANZ to put forward four substantial firms simply to negotiate a settlement with Tremco. This can be done by ANZ, with me included. It will not cost the amount that ANZ have put forward that it will cover for a consultant to negotiate this. This was not in the spirit of the negotiations that occurred on 12 October 2018.

You need to be clear that the blockage in moving forward is not Tremco’s settlement. Tremco have been put on notice, including a letter from ANZ Bank last year that I have no equity in my home. The blockage in moving forward is Shayne Elliot [sic] and your refusal to look at the root cause of the dispute with ANZ, have a consultant determine ANZ’s liability (if any) and calculate the loss and damage that ANZ need to remediate to me and my family.

Until ANZ agree to do what is necessary, and which Shayne Elliott told the Economics Committee he would take full responsibility for, and look at ANZ’s misconduct and wrongdoing, then this matter can not progress and has stalled perhaps to the point where it is not possible to progress forward.

…

My offer is still on the table for me to have David Neve and if necessary a solicitor of his choice to determine ANZ’s liability (if any) and the amount of loss and damage that my family has sustained both in financial terms and the loss of my personal and business reputation…”

185. On 22 March 2019, Mr Steinberg emailed the appellant and expressly informed her that “ANZ is not offering any cash payment to you”.

186. It was on the basis of this evidence that the ANZ contended below that the contemporaneous correspondence was inconsistent with the existence of the two agreements alleged by the appellant.

187. The points raised by the ANZ below, concerning whether there was a genuine dispute as to the alleged debt, were:¹²⁴the contemporaneous correspondence is inconsistent with the existence of the two agreements alleged by the appellant;there are other problems with the alleged agreements, including that the statutory demand specified that on 22 May 2018 that the ANZ agreed to pay, on behalf of the appellant, to Tremco the sum of $972,000, however there was no explanation for the calculation of this amount;the appellant’s affidavit filed on 17 January 2022 deposed that at the meeting on 22 March 2018, Tremco, PWA and Thomson Lawyers were not discussed, and it was to proceed on the basis that the ANZ “would not pay all the legal costs associated” with the Court proceedings;Ms Kindermann’s affidavit deposed, on information and belief, that Mr Steinberg denied that the ANZ reached the alleged agreements with the appellant; Mr Steinberg was at both meetings and was involved in the relevant contemporaneous correspondence; it is improbable that a settlement of the nature alleged by the appellant with the ANZ would not be recorded in a deed or arrangement; the ANZ pointed to contemporaneous correspondence which referred to the need for formal documentation, including in the appellant’s counteroffer contained in the letter dated 22 March 2018; andfor an agreement to be binding, its terms must be certain.

The statutory demand – evidence of a genuine dispute

188. There are a number of features about the correspondence out of which the two alleged agreements must arise, that may be noted.

189. First, the statutory demand identifies the first agreement as being on 22 March 2018, in which the ANZ agreed to pay specific sums to specific entities, namely $972,000 to Tremco, $50,000 to PWA, and $30,000 to Thompson Lawyers. The correspondence noted above, from 22 March through to 27 March, does not support that claim. On 22 March the appellant’s own email refers to a meeting that day, and the request by the ANZ that the appellant “put forward a counter-offer, to the settlement offer that he made … today”. The counter-offer is then set out and includes: (i) that the ANZ will not enforce certain personal guarantees, (ii) that the ANZ will discharge the second mortgage on a particular property, (iii) that it will reduce a mortgage on a particular property, and (iv) that it pay “the sum of $4,225,756.00 within 7 days from the date of acceptance of this offer by ANZ”.

190. How the sum of $4,225,756.00 is calculated is not evident, nor is there any identification of the particular sums set forth in the statutory demand.

191. Secondly, what was said by the appellant on 22 March 2018 was plainly a counteroffer to what had been proposed by ANZ. There is, in my view, an argument that the counteroffer rejected the ANZ’s offer. However, there is no correspondence that would support the conclusion that on 22 March 2018 the counteroffer was accepted.

192. Thirdly, by 26 March 2018, the appellant’s emails to the ANZ makes it arguably clear that there had been no acceptance of the counteroffer as at that later date. The email asks for “acceptance of our counteroffer … by no later than … 28 March 2018”. In our view, that is powerful evidence against the proposition that an agreement had been reached on 22 March 2018.

193. Fourthly, on 27 March 2018 the ANZ rejected the counter-offer that had been set out in the appellant’s email on 22 March 2018. The ANZ’s email goes on to express a preparedness to settle in terms of only four of the five components of the counteroffer, the one notable omission being payment of the sum of $4,225.756. In respect of that component, the ANZ’s email said it was “not prepared to pay any compensation to you”.

194. In our view, these are compelling matters which would tell against a conclusion that agreement was reached on 22 March 2018, or in the component parts reflected in the statutory demand. In that sense there, in our view, was a genuine dispute about that component of the statutory demand.

195. It may be that evidence from the participants at the meeting will range beyond what is said in the emails. It may well be that there are differing recollections of what was said. It is, of course, possible that the sort of evidence to be led at a trial might shed some light on the issue. But that is not the sort of exercise that a court embarks upon when entertaining an application to set aside a statutory demand. As the authorities referred to above show, the exercise is not one for a trial or even a mini trial, but more akin to establishing whether there is a serious question to be raised in respect of whether the debt is owed. The application to set aside a statutory demand is a summary procedure and one not designed to get a mired in the merits of the underlying dispute between the parties, nor to embark upon issues which depend upon creditability or differing recollections. They are matters more properly dealt with at a trial.

The appellant’s other contentions as to the debt

204. In her outline before this court, the appellant raised a number of contentions concerning the proposition that affidavits and contemporaneous documents in evidence showed that the ANZ did agree to pay PWA, Tremco and Thompson Lawyers, but “wanted to negotiate a compromise of the amounts to be paid to them”.¹²⁵

205. The appellant refers to the ANZ having made a “deliberate decision that it would not pay compensation”, and refers to the email of 27 March 2018 by Mr Gnaden. In her own affidavit,¹²⁶ the appellant refers to a meeting on 12 October 2018, the date in the statutory demand where it is alleged there was agreement to pay $1,780,378. But beyond asserting her own belief that an agreement had been made, nothing is deposed that would support the statutory demand. The appellant says the ANZ’s representatives made it clear that no compensation would be paid to which she responded, “if there is not compensation then Wayne and I will require a cash payment”.¹²⁷ She deposes that the response of Mr Elliott was to the effect of, “I can organise that”. That, however, is no evidence that an agreement was actually reached, but merely a preparedness to reach agreement. Further, it says nothing of the specific amount the subject of the statutory demand. In any event, resolution of the issues depending upon that sort of evidence is a matter for trial, rather than the summary procedure applicable to setting aside a statutory demand.

206. In support of the proposition that the ANZ “wanted to negotiate a compromise of the amounts to be paid”, the appellant then refers events on 22 February 2018, 27 February 2018, but not 22 March 2018.¹²⁸

207. In her affidavit,¹²⁹ the appellant deposed to the meeting on 22 March 2018. What the appellant said is as follows:

“[35]Mr Thomson and I attended a further meeting with Mr Steinberg and Ms Ford on 22 March 2018 at the Applicant’s Brisbane office and I state in regard to this meeting as follows:-

a. The purposes was to continue discussions to reach an amicable and fair compromise of our claim against the Applicant; and

b. We did not discuss Tremco, PWA and TL as the Applicant had already advised me by email dated 5 March 2018 … that I was to proceed on the basis that the Applicant would not pay all of the legal costs associated with the various court actions that I was involved in and I was proceeding on that basis; and

c. The meeting was about the amount of compensation that we were looking for the Applicant to pay; and

d. Mr Steinberg did say that the amount of compensation we were looking for was unreasonable, but not that we were not entitled to it; and

e. Mr Steinberg said words to the effect of ‘We would like you to have a think about how much you can reduce the compensation, what you are really prepared to accept. I invite you to make a counter-offer to us.’

f. Nothing further was agreed to at this meeting, just that we were invited to make a counter-offer in regard to the compensation we would accept.”

208. On any view, it is arguable that the appellant’s account of that meeting does not support the conclusion that an agreement was reached, let alone in the terms set out in the statutory demand.

209. As to the October period, where it is said in the statutory demand that on 12 October ANZ agreed to pay $1,780,378 to the appellant, the appellant’s outline refers to an email dated 22 October 2018.¹³⁰ The email is from a solicitor at Mills Oakley and concerns the offer of ANZ for a third party to “assist with negotiating a potential settlement between our client Tremco Pty Ltd, and her”.¹³¹ The email to which the appellant refers to in her outline is from the ANZ in response to the Mills Oakley email. The email does not indicate that an agreement has been reached, let alone on the terms the subject of the statutory demand. It commenced by saying that the offer that had been put to the appellant “involves an ‘all in’ global settlement of all our matters with her” and states that the ANZ needs confirmation that “she is accepting the other elements of our offer”.¹³² On any view, the email is inconsistent with the view that a concluded agreement had been reached, or for the sum claimed in the statutory demand.

210. The balance of the matters referred to in paragraph 29 of the appellant’s outline take the matter no further. The subsequent email correspondence indicated a willingness to settle, but not that there had been an agreement.

211. The appellant’s outline seems to proceed upon the basis of a concession that there was no agreement. For example:in paragraph 51, she contends that the ANZ “continued to hold Thomson out of her remediation”;in paragraph 52, she asserts that the contemporaneous documents showed that agreement was reached; they do not;in paragraph 55, she submits that “The only thing that is in issue is the amount of the payments because ANZ have always maintained that they wanted compromised amounts negotiated. ANZ Bank did not proceed to the settlement conference in February 2019 and these compromised accounts were never negotiated”; andin paragraph 56, she submits that the ANZ “failed to proceed with the settlement conference” and required mutual releases from future claims before they would conduct a negotiation with Tremco.

212. Notwithstanding those statements, the appellant also maintains that there was an agreement to pay the amounts in the statutory demand, evidenced by contemporaneous documents.¹³³ The contemporaneous documents provide no such support.

“[353] It is not the function of the Court on an application such as this to determine the merits, including whether there is an agreement and, if there is, its terms. The Court is required to look at the evidence to ascertain whether there are grounds for alleging the existence of a dispute. This may be whether there is a plausible contention requiring investigation.

[354] Here the contemporaneous correspondence shows there were ongoing negotiations between the applicant and the respondent. It shows counteroffers being made.

[355] From the contemporaneous correspondence in evidence and the submissions of the parties it emerges that further investigation is required in respect of two competing contentions:

(a)whether the component in the counteroffers were in effect ‘locked in’ with ongoing negotiations being only on what remained outstanding and the applicant waiving the right to agree the amounts payable by not continuing to negotiate:¹³⁶ or

(b)Whether the counteroffers were in effect ‘global offers’ where everything had to be agreed for an agreement to be reached and the counteroffers operating such that the previous offers were rejected.¹³⁷

[356] In the circumstances, there is a clear and genuine dispute between the parties as to whether there is a debt that is due and payable as claimed in the statutory demand.”

216. We respectfully agree with the conclusions expressed by the learned primary judge. There is plainly a genuine dispute about whether the two debts that are the subject of the statutory demand are due and payable.

Leave to amend – grounds 2(m), (n), (s) and (v)

217. In the amended notice of appeal filed 14 April 2022, the appellant has added grounds 2(m), (n), (s) and (v). The ANZ objects to leave being granted to raise those grounds.

218. Each of those proposed grounds attack the finding that there was genuine dispute in respect of the debt the subject of the statutory demand. Ground (m) seeks to contend that there was an error because the dispute was “not real, was hypothetical, illusory or misconceived and designed to avoid payment”.

219. Ground (n) seeks to contend that there was an error because the affidavit in support of the application “did not contain the elements required to prove the existence of a genuine dispute”.

220. Ground (s) seeks to contend that there was error in not considering the appellant’s evidence that the ANZ’s conduct was prohibited by statute, the orders sought by the ANZ were “obtained irregularly, illegally and against good faith by fraud”, and that there were deficiencies in the ANZ’s evidentiary proof.

221. Ground (v) seeks to contend that there was error “in placing too much reliance on the contemporaneous documents to the exclusion of the affidavits in support of the … application to set aside the statutory demand”.

222. For the reasons which we have already set out above, the state of the evidence before the learned primary judge was such as to meet the low bar on such an application. The application was not the occasion for a trial or mini trial and was simply to be resolved by determining whether there was, in a summary way, grounds to say there was a genuine dispute. None of the matters raised in the proposed grounds casted doubt upon the evidence before the learned primary judge, or the learned primary judge’s approach to resolving the issue. In particular, the matters sought to be raised in proposed ground (s) do not assist, as they relate to conduct earlier in time than the two contended agreements, one on 22 March 2018 and the other on 12 October 2018.

223. Because those grounds add nothing in terms of the relevant issues, we would refuse leave to amend to raise them.

Leave to adduce new evidence

224. The appellant seeks leave to adduce evidence that was not available at the hearing on 7 February 2022. That evidence appears in an affidavit by the appellant sworn 20 July 2022.¹³⁸

225. One of the major points made by the appellant in her affidavit sworn 20 July 2022,¹³⁹ is that there was a technical deficiency in an affidavit sworn on behalf of the ANZ, in which a clause stating, to the effect, that the contents of the affidavit were true and correct and acknowledging that a false affidavit may result in a charge of perjury, was missing.¹⁴⁰ Whilst it is true that such a clause was missing the omission amounted to an irregularity which was addressed at length in the hearing on 7 February 2022.¹⁴¹ For present purposes, the point taken by the appellant is immaterial to the outcome on this appeal. That is because even if the affidavit with the omitted clause was excluded, the learned primary judge had the evidence of all the email exchanges which either supported the existence of the two agreements the subject of the statutory demand or did not. As demonstrated above, the contemporaneous evidence does not support a conclusion excluding genuine doubt about the alleged debt. The bulk of the affidavit sworn 20 July 2022, in paragraphs following paragraph 14, focus on that point and others which are immaterial to the outcome.

226. In paragraph 13 of that affidavit the appellant sets out the new evidence which, she contends, was not available prior to the hearing. The first is a letter from Tremco’s solicitors to the appellant, dated 8 February 2022.¹⁴² It conveys a “without prejudice” offer based on amounts relating to the sale of the property at Pelican Waters.

227. The second is an email sent by the appellant to Tremco’s solicitors on 9 February 2022 in which the appellant sought a cost statement for outstanding legal costs.¹⁴³

228. The third is an email dated 21 February 2022 from the appellant to the ANZ.¹⁴⁴ That sent a copy of Tremco’s settlement offer to the ANZ.

229. The fourth is an email dated 21 February 2022, where the appellant responded to Tremco’s solicitors.

“ANZ’s position remains that it has not reached any agreement with you, and it has not agreed to pay any of your creditors any amounts. The settlement offer from Tremco is a matter between you and Tremco. ANZ has no involvement in that matter.”

231. The remaining documents in that part of the affidavit concern requests to AFCA for consent to proceed to a final hearing. They are immaterial to the present issue.

232. The further evidence does not advance the appellant’s case. The response from the ANZ on 21 February 2022 makes it plain that there is contest about whether any agreement was reached. That is a contest not resolvable in a summary way, but rather at a trial.

233. The balance of the exhibits to that affidavit consist of correspondence between the appellant and the solicitors for the ANZ debating points raised by the appellant. None of them shed light on anything that would resolve the issue of whether there is a genuine dispute as to the debt in the statutory demand. We would therefore refuse leave to adduce the evidence.

234. The learned primary judge set out the competing positions on both side in respect of the alleged deficiency in the affidavit.¹⁴⁷ Her Honour then dealt with the issue at some length, holding that the affidavit was a valid affidavit for the purposes of s 459G of the Corporations Act.¹⁴⁸ No ground of appeal attacks that finding. That is an additional reason to refuse leave to adduce the further evidence insofar as it concerns that point.

Appellant’s supplementary submissions – disability issue

235. In the appellant’s supplementary submissions, paragraphs 3-22 deal with an assertion that the appellant, as a self-represented litigant, did not receive sufficient assistance at the hearing below in light of the fact that she was a diabetic. In our view, these submissions should be rejected for several reasons.

236. First, no ground of appeal is based upon the appellant suffering a relevant disability, or diabetes. Nor does any ground alleged that there was error by failing to make adjustments for those reasons.

237. Secondly, that was no medical evidence before the learned primary judge at the hearing below, regarding the extent to which any disability, or diabetes, affected the appellant. Regard to the transcript reveals that after the adjournment the hearing continued and the appellant made detailed submissions orally.

238. Thirdly, when the hearing was adjourned to 7 February 2022, it was in response to matters raised by the appellant in an affidavit of 29 August 2021, directed to the ANZ’s solicitors.¹⁴⁹ In that email the appellant raised the fact that she has diabetes, and mentioned aspects of her treatment, but asked for the February hearing on the basis that that would suit her in light of her condition.

239. Fourthly, nothing has been identified by way of evidence or submissions that might have been placed before the court had the adjournment not been refused. Given the state of the evidence before the learned primary judge, which included not just the contemporaneous correspondence but also affidavit material from the appellant herself, and given the extraordinary volume of the material, it is difficult to conceive that there was another point that could have been made.

240. The balance of the supplementary submissions raise no point material to the outcome of this appeal.

Apprehended bias – UQ Law School event

241. The appellant contends that the orders made on 18 March 2022 should be set aside on an additional basis of apprehended bias. This concerns the participation by the learned primary judge at an event organised by the University of Queensland Law School, which took place at the offices of the solicitors for the ANZ.

242. We note at the outset that in the appellant’s supplementary submissions filed on 6 October 2023, what is sought is that the orders made on 18 March 2022 be set aside.¹⁵⁰ The orders made on 18 March 2022 related to resolution of the r 371(2) and r 389(2) UCPR issues, as well as costs.¹⁵¹ The orders by which the learned primary judge refused to recuse herself, granted leave to rely on Mr Smith’s affidavit and set aside the statutory demand, were all made on 24 February 2022.¹⁵² The ANZ’s supplementary submissions filed 2 November 2023 submit that the appellant appears to concede that the apprehended bias allegations regarding the UQ School of Law event, are not a basis for setting aside the orders made on 24 February 2022.¹⁵³ That submission refers to paragraph 82 of the appellant’s supplementary submissions, referred to above.

243. There is force in the ANZ’s point. Paragraph 81 of the appellant’s supplementary submissions filed 6 October 2023 reads as follows:¹⁵⁴

“81.The fair-minded lay observer with the knowledge that shortly before the hearing on 18 March 2022 two partners of the Respondent’s solicitors knew that the UQ Law School were intending to have Justice Williams attend an event in Freehills Offices, where Her Honour proceeded to hear the rule 389(2) application contrary to the submissions of the Appellant and the Respondent, in the Respondent’s favour that Her Honour might not bring an impartial and unprejudiced mind to the resolution of the r 389(2) application.”

244. As will appear, the invitation to the learned primary judge to attend the UQ Law School event did not come until after her Honour handed down her decision in the primary proceedings and made the orders which were made on 24 February 2022. In other words, whatever the outcome of the appellant’s complaint about apprehended bias on this particular issue, it is not directed at overturning orders 3 and 4 made on 24 February 2022, by which reliance on the affidavit of Mr Smith was granted, and the statutory demand was set aside.

245. In that respect, the resolution of this issue is of doubtful utility. At best it can only affect the order that steps in the proceedings between 15 September 2021 and 7 February 2022 were effectual, and the orders for costs. It can have no impact upon the fact that the statutory demand has been, by order of the court, set aside.

246. Further, for the reasons which we have developed earlier, as a matter of law the learned primary judge’s conclusion that the consent adjournments were a step in the proceedings was correct. Given that the decision in that respect was legally correct, we doubt that any question of apprehended bias could result in that order being set aside.

247. Nonetheless, the appellant is a self-represented litigant and has raised the issue specifically, and we will therefore deal with it.

The essential facts

248. The essential facts concerning the event at which the learned primary judge was invitee, appear from the affidavits of Ms Pacey and Ms Bryce.¹⁵⁵

249. Ms Pacey only commenced as a partner of Herbert Smith Freehills (HSF) on 7 February 2022. Thus, she only joined HSF on the day on which the main hearing occurred before the learned primary judge. Ms Pacey practises in environment and planning law.

250. The UQ Women in Law is an annual event organised by the UQ Law School. The aim is to provide guidance to women who aspire to senior roles in the legal profession. From 2016 to 2021 the event had been held at the offices of Clayton Utz. It was held on 4 May 2022 at the office of HSF.

251. Ms Pacey’s involvement with the event commenced in 2017 and thereafter she had the role of master of ceremonies.

252. Contact between the University of Queensland in relation to the event, with Ms Pacey, occurred soon after she became a partner on 7 February 2022. The work making arrangements was carried out by a client services team at HSF, that being a non-legal team.

253. On 14 March 2022 Ms Pacey received an email from the UQ organiser, in which he indicated that he had received a recommendation to reach out to “Justice Williams to represent the judiciary”. Ms Pacey deposed that that was the first time she was made aware that Justice Williams might be on the panel. She did not make that recommendation and had no involvement in it.

254. As at 14 March 2022, Ms Pacey was unaware whether Justice Williams had been invited to attend.

255. On 15 March 2022, Ms Pacey emailed the female partners at HSF, seeking a volunteer to join the panel for the event. Ms Bryce agreed to do so.

256. Ms Bryce was the only person that Ms Pacey arranged to sit on the panel. The remainder of the panellists were invited by the UQ organiser. Ms Pacey did not invite any of the other panellists.

257. On 12 April 2022, Ms Pacey received an email from the UQ organiser, confirming that one of the panellist was Justice Williams. That was the first time that Ms Pacey was aware that her Honour had been confirmed as a panellist.

258. At the event on 4 May 2022, other than hosting the panel discussion, Ms Pacey spoke with her Honour briefly before the commencement of the panel discussion, regarding the discussion topics, and subsequently to thank her Honour for her involvement. Ms Pacey did not discuss any HSF matters with her Honour.

259. Prior to 17 June 2022, Ms Pacey was not aware that HSF was acting for the ANZ or that the learned presiding judge had presided over any proceedings to which the ANZ was a party, or in which HSF was involved. Prior to 17 June 2022 Ms Pacey had never heard of the appellant.

Consideration

268. In our view, it is nonsensical to suggest that those circumstances surrounding the UQ Women in Law event would meet the test for apprehended bias. The following matters are pertinent to that conclusion: neither of the HSF partners involved in organising the event (one as master of ceremonies and the other as a panellist) was aware of the appellant’s litigation or that her Honour was involved in it;neither of the HSF partners worked in areas of the firm which had any connection to the litigation; Ms Pacey worked in environment and planning law, and Ms Bryce in corporate and mergers and acquisitions;the selection of her Honour as a panellist was not made by anyone as HSF, but rather the organiser from UQ;the other panellists included a practising QC and an associate professor from the UQ School of Law;none of the topics at the event involved discussion of litigation either generally or in particular, but rather reflections on each persons’ career as a woman in law;the event was plainly attended by a substantial number of other people, as it was a public forum; the areas being considered for the event were capable of holding up to 100 people;drinks and canapes were provided for everyone, not as some special gift to her Honour; andwhilst the client services team were prepared to organise matters with respect to car parking for her Honour, given that the event was held from 5.00 pm on a Wednesday, and given that HSF has their office in the city, we would infer that her Honour walked to the event.

269. Given the public nature of the event, its size, the fact that her Honour was one of a number of panellists, and none of the HSF partners involved had any connection with the litigation, the prospect that a fair-minded lay observer would have apprehension about her Honour’s capacity to bring an impartial and unprejudiced mind to the issues, is more a romancing one then one grounded in reality.

270. The appellant contends that the High Court decision in Charisteas v Charisteas¹⁵⁸ is on point with this matter. That proposition is easily dispelled. In Charisteas the contact was between the judge hearing a matter and a barrister appearing in that matter. Whilst the decision was reserved, the judge and the barrister met for a drink or coffee on four occasions, spoke together on five occasions by telephone, and exchanged numerous text messages. None of that contact was in the public domain. None of that conduct was known to anyone but the judge and the barrister. Charisteas could not be more remote from the facts in the present case.

271. In Charisteas the High Court did not depart from the well-established applicable principles. The court summarised in this way:¹⁵⁹

“11Where, 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. Its application requires two steps: first, ‘it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits’; and, secondly, there must be articulated a ‘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.”

272. The present case fails at both steps. One struggles to understand how the circumstances surrounding the UQ Women in Law event contains anything that can be identified as leading the judge to decide a case otherwise than on its merits. The judge was asked to speak at a public event, as part of a multi-person panel, on issues completely unrelated to the litigation. The judge received no private accommodation that was not available to others. Secondly, there is no “logical connection” between what occurred and any feared departure from her Honour deciding the case on its merits.

273. This aspect of the appellant’s case lacks merit.

New issues on the appeal

274. In the appellant’s written outline filed 18 September 2023, the appellant has raised a number of matters in paragraphs 11-14, which are raised for the first time. In essence they are:whether the learned primary judge erred in the application of public policy where, on the evidence the ANZ was involved in illegality;whether the learned primary judge erred in not providing the appellant protection against that illegality;whether there was an error in making orders in the ANZ’s favour where the cause of action is based on a statutory prohibition and against public policy; andwhether the evidence is capable of establishing that public policy does apply.

275. The ANZ contend that those arguments should not be permitted for two reasons. The first is that the arguments are irrelevant to the narrow statutory question of whether there exists a genuine dispute about the debt underlying the statutory demand.¹⁶⁰ The second is that had the arguments been raised below, the ANZ could have provided responsive evidence.¹⁶¹

276. The matters raised in paragraphs 11 to 14 of the outline are reflected in proposed amended grounds, in the proposed second amended notice of appeal, namely grounds 2(a)-(d), (y) and (z).¹⁶²

277. In our respectful view, the application to amend and to raise those points should be refused. There are two reasons for that.

278. First, as is evident from submissions made by the appellant below and in some of her affidavit material, she contends that the ANZ was obliged to remediate any loss or damage caused to her, and that their failure to do so is contrary to law. However, the statutory demand is based upon something completely different. It contends that there were two specific agreements made on specific dates, for the payment of specific amounts. The foundation of the statutory demand has nothing to do with any suggested illegality or public policy. Agitation of those questions is a matter for a trial and is irrelevant to the issue as to whether there is a genuine dispute about the debt which is the subject of a statutory demand.

279. Secondly, it is probable that the ANZ could provide responsive evidence when the allegations are that acts carried out by it were contrary to law or public policy. That the ANZ did not do so for the purposes of the hearing before the learned primary judge is entirely consistent with the fact that the issues concerning the statutory demand were narrow, as we have explained.

280. Leave to amend to raise those grounds should be refused.

Calculation of the $1,780,378

281. In the appellant’s amended reply, filed 4 December 2023, submissions are made by the appellant in support of an application to adduce new evidence. The evidence is contained in an affidavit sworn by the appellant on 30 November 2023. Relevantly the appellant exhibits an email dated 13 May 2019 that was sent to the ANZ. In various ways the appellant seeks to make the point that counsel for the ANZ was wrong to say to the learned primary judge that they could not work out how the $1,780,378 figure in the statutory demand had been calculated. In addition, the appellant contends that the figure in the email has some relevance in the event that this court is of a mind to vary the statutory demand.

282. There are considerable difficulties confronting the acceptance of the evidence in the email of 13 May 2019, and with accepting the proposition advanced by the appellant in her amended reply, i.e. that the email explains how the figure in the statutory demand was calculated.

283. First, self-evidently the email postdates the agreement alleged in the statutory demand, which was said to have been made on 12 October 2018. It is true to say that conduct subsequent to an alleged agreement can be relevant to ascertaining whether an agreement was made or not. However, the email is principally concerned with the appellant’s “counteroffer”. The mere mention of that, and the articulation of the counteroffer later in the email, strongly suggests that there had been no previous agreement reached.

284. Secondly, the email makes plain that there has been no settlement between the ANZ and Tremco. True it is that the email states “since February 2018 ANZ have agreed to pay Tremco”, but reading further makes it plain that no settlement had been reached, as the amount had not been agreed.

285. Thirdly, referring to the ANZ’s offer, the email states that “the current offer on the table does not provide a settlement that we are able to accept”. It goes on to state that “… negotiations for a settlement have been ongoing since December 2017 and each time we believe that an agreement has been reached ANZ never settle on those terms”. Those statements point plainly to a conclusion that there has been no agreement.

286. Fourthly, the email sets out what is describe as “History of settlement negotiations to date”. The starting point was the “compensation that was submitted to ANZ in December 2017”, in the amount of $6,500,487. Then the email says that at a meeting on or about 22 March 2018, the ANZ “asked us to consider submitting a counteroffer for a reduced amount”. In addition, it asserts that it was agreed at 22 March 2018 that the ANZ would pay Tremco, PWA and Thomsons Lawyers, but that “we should proceed on the basis that these would be negotiated settlements”. Those statements tend to the conclusion that there was no figure agreed on 22 March 2018, as the statutory demand suggests.

287. Fifthly, the email then says that a counteroffer was made in March 2018, at a reduced figure of 35 per cent of the actual loss and damage. The email then relates that the counteroffer was rejected by ANZ. It goes on to state that the ANZ had advised that “it believes that Tremco and ANZ can reach a commercial settlement”, and that “ANZ needs to settle with both Tremco and PWA”. Those statements are inconsistent with any agreed sum having been reached. It states that “the current offer on the table excludes any compensation for us”. It also states that “ANZ are now refusing to negotiate a settlement with PWA and Thomsons Lawyers going back on their agreement in early 2018 that they would negotiate a settlement with them”. Those statements also point plainly to the absence of any concluded agreement on 22 March 2018, let alone in the figure stipulated in the statutory demand.

“e.The amount we have allowed for this is:-

i. Tremco $600,000 (including the appeal and judgment);

ii. PWA $50,000;

iii. Thomsons Lawyers $15,000;

iv. Total to pay these three credits is $665,000.”

289. The email makes the point that the ANZ may be able to negotiate with Tremco, PWA and Thomsons Lawyers to achieve a lower sum. The email then, in paragraphs (g), (h) and (i) on page 5 states:

“g.As a starting point to determine a fair and reasonable amount of settlement, that is mutually beneficially to both ANZ and us, and commercial and pragmatic, we have used the reduced amount of compensation in our letter dated 22 March 2018 as the starting point namely $4,225,756.00.

h.We have made allowance for ANZ paying the three creditors in the sum of $665,000, and deducted $665,000 from the sum of $4,225,756.00. The total amount of compensation after deducting this is $3,560,756.

i.We believe that a fair and equitable commercial and pragmatic settlement would be for this to be split 50/50 between ANZ and us. This would mean that the compensation/cash payment to us would be $1,780,378. From this amount $890,189 would be payable to Wayne and $890,189 would be payable to Carolyn.”

290. There are several points that then become evident from the consideration of the counteroffer as framed in the email of 13 May 2019. They are:the counteroffer is being made because no final agreement has been made with any of Tremco, PWA, Thomsons Lawyers or the appellant;the figures for Tremco, PWA and Thomsons Lawyers, totalling $665,000, is what the appellant allowed for, for the purposes of the counteroffer; there is no suggestion that those figures have been agreed;that is then deducted from the amount of $4,225,756, which was a figure used in a counteroffer in March 2018, and itself a reduction by 35 per cent of what had previously been claimed;it is only by splitting the result of that deduction, namely $3,560,756, on a 50/50 basis that the figure of $1,780,378 is reached; andin the absence of any document recording figure $1,780,378 prior to that time, the inference might be drawn that the occasion of the email of 13 May 2019 was the first time it had been thus calculated; that is potentially evidence destructive of the proposition that the figure had been agreed on 12 October 2018, as the statutory demand says.

291. Seventhly, that the ANZ knew how the figure was calculated for the purposes of an offer in May 2019, does not shed any light on how it is said that the same figure was calculated as at October 2018. What counsel for the ANZ said in the hearing was with reference to the figure stated in the statutory demand, namely that figure agreed as at 12 October 2018.

292. Eighthly, on page 13 of the email, in paragraphs 41 and 42, the appellant recites what occurred on 12 October 2018:

“41.On 12 October 2018 at a meeting in Parliament House in Canberra Shayne Elliott said no compensation would be paid but he could arrange a cash payment to Wayne and I. …

42.At that meeting it was agreed that a consultant would be engaged at ANZ’s costs to bring all parties to the settlement table to negotiate a final settlement. … This included all parties to the Tremco proceedings and that Shayne would be able to organise a cash payment for Wayne and I as part of this settlement. …”

293. That account, if true, is potentially destructive of a conclusion that there was an agreement reached on 12 October 2018 in the sum of $1,783,78 which, according to the statutory demand, was to be paid only to the appellant, and not the appellant and her husband.

294. The appellant and ANZ both had copies of that email in their possession at the time of the hearing before the learned primary judge. It could have been produced in evidence, but as it concerned the counteroffer made in May 2019, one can understand why it was not. It adds nothing substantive to the issues to be determined on an application to set aside the statutory demand. It is simply more evidence that raises a genuine doubt as to the basis of the debts alleged in the statutory demand. In that sense, it adds nothing. Further, it does not reveal how the figure claimed in the statutory demand was calculated at that time, nor does it prove the falsity of anything said by counsel for the ANZ.

295. We would refuse leave to adduce the evidence.

Application to adduce further material

296. By email dated 28 January 2024, to the Registry, the appellant seeks to put fresh evidence before the court in relation to the two appeals. The email raises the following matters:Allegations of impropriety in relation to Tremco’s involvement in the sale of property under a write of execution; the essence of the argument is that the improprieties effect the amount recovered and the amount paid to the ANZ;an alleged misstatement of fact made by Morrison JA in the decision Thomson v Tremco Pty Ltd;¹⁶⁵ andthat the Tremco issue was put before the Court of Appeal in November 2022 and that court “accepted that this was in the past and they would give equal weight to my evidence in the current appeals”.

297. As to the first matter, questions relating to the sale of land by Tremco under a writ of execution have nothing whatsoever to do with the issue in the present appeals, which relates to whether there was genuine doubt about the debts alleged in a statutory demand, sufficient to warrant it being set aside. As dealt with earlier in these reasons, the statutory demand alleges a particular agreement on a particular date, a component of which was a specific amount to be paid to Tremco. Relevant to the appeals is the evidence relating to the alleged agreement on that day and the specific amount to Tremco. Actions concerning the sale of land under other processes are irrelevant.

298. The second matter alleges that there was an error of fact in the judgment of Morrison JA in Thomson v Tremco. There was no mistake of fact. In paragraph [90] of that decision, the impugned passage was not a finding a fact, but merely a recitation of the appellant’s own submissions in that appeal. The footnote to paragraph [90] directed attention to paragraph 19(f) of the appellant’s submissions in that appeal.

299. The third matter concerns something attributed to this court when it was hearing the appeal which resulted in the decision in Thomson v Australia and New Zealand Banking Group.¹⁶⁶ What the appellant says is that arguments derived from the supposed mistake of fact in paragraph [90] of the decision of Morrison JA “was put before the Court of Appeal in November 2022 … where the Court of Appeal accepted that this was in the past and they would give equal weight to my evidence in the current appeals”.¹⁶⁷ She urges that because of the mistake of fact she has lost property, and that:¹⁶⁸

“44.If the Court of Appeal are serious that my evidence is now to be given equal weight then is needs to determine what amounts are the correct amounts to be varied for Tremco (if any under the confidential settlement agreement) and the consequences of Morrison J’s (sic) error of fact …”.

300. As pointed out above that was no error of fact and the evidence creates genuine doubt about the amount said to be part of the debt for Tremco in the statutory demand. Consequentially, even if this court had said what is attributed to it, it would make no difference.

301. We have read the reasons given by the court in Thomson v Australia and New Zealand Banking Group¹⁶⁹ and the transcript of the hearing when that application was argued. Nothing in the reasons or the transcript supports the proposition articulated in paragraph 41 of the email namely:

“This was put before the Court of Appeal in November 2022 in my application for the appointment of a Contradictor, where the Court of Appeal accepted that this was in the past and they would give equal weight to my evidence in the current appeals.”

302. It is true to say that in the course of the hearing the difficulties a self-represented litigant were the subject of comment, and it is equally true to say that the appellant expressed her dissatisfaction, based on her own experience, that arguments by self-represented litigants did not seem to be given the same weight as represented litigants.¹⁷⁰ But nothing said by this Court warrants the assertion in paragraph 41. What the Court did comment upon was their understanding and acceptance of the fact that self-represented litigants can find the tasks of advocating their case to be difficult, more so than legally represented litigants. What the Court emphasised was that appeals were decided upon the evidence before the primary judge, the Court was well aware of the difficulties confronted by self-represented litigants, the rules relating to the making of fraud allegations applied equally to self-represented litigants as to anyone else, and the courts ensure that self-represented litigants get a fair hearing. But nothing said takes it as far as the appellant would have it.

303. The extra points raised by the appellant do not advance her case.

Conclusion

304. As we have explained in the reasons above, the appellant’s challenge to the decisions of the learned primary judge has failed. The appeals should be dismissed, with costs.

305. The orders are:

Leave granted to amend the notice of appeal except in respect of proposed grounds 2m, 2n, 2s(a)-(d), 2v, 2y and 2z.

Applications to adduce evidence refused.

The appeal in CA3513 of 2022 is dismissed with costs.

The appeal in CA4341 of 2022 is dismissed with costs.

Footnotes

1. Australia and New Zealand Banking Group Limited v Thomson [2022] QSC 18. ↩

2. This issue only arises if the appellant is granted leave to amend her notice of appeal. ↩

3. (1936) 55 CLR 499. ↩

4. Later known as Bentleys (Sunshine Coast) Pty Ltd. ↩

5. Jackson J also made an order by consent that there be no order as to the costs of the previous eleven adjournments. ↩

6. As his Honour then was. ↩

7. [2019] QSC 229. ↩

8. As her Honour then was. ↩

9. SGR Pastoral at [51]. ↩

10. [2012] FCA 282 at [20]. ↩

11. [2017] QSC 176. Footnotes omitted. ↩

12. Re Syncordia Group Operations Pty Ltd [2021] VSC 732. ↩

13. Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (l997) 76 FCR 452, 464; Malec Holdings Pty Ltd v Scotts Agencies Pty Ltd (in liq) [2015] VSCA 330 [49].