2.3 Consideration
21 The applicants base their application on principles of apprehended bias as set out in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 and Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289 and which may be summarised by reference to the decision in Charisteas at [11]:
…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, second, 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.
(Footnotes omitted)
22 The applicants contend that a fair-minded lay observer would reasonably apprehend that the judge in the present case might not bring an impartial mind to the resolution of the questions that her Honour was required to decide because they perceived that there was a secret meeting between the judge and counsel for the Minister, emphasising Charisteas at [13] - [14].
23 The interlocutory application was filed after judgment had been delivered in Tukala 1 and Tukala 3. For the reasons explained in Kitoko FFC that course was not considered to be an abuse of process by reason of the operation of FCR r 39.04, which provides:
39.04 Varying or setting aside a judgment or order before it has been entered
The Court may vary or set aside a judgment or order before it has been entered.
24 As the Full Court noted at [27], the FCR r 39.04 provides a general power to vary or set aside orders before they have been "entered", 'entry' being part of a process of finalising orders made that involves settling, authentication and then entry as set out in FCR rr 39.33, 39.35 and 39.32 respectively.
25 FCR r 39.32(3) was, by amendment to the FCR commencing on 13 January 2023, introduced to provide the parties a short time (14 days) to consider the orders made, and any reasons given, before orders are entered in order to facilitate drawing matters to the Court's attention if necessary or the making of a considered and appropriate application. The effect of providing the parties with a short time is that there is a narrow window of time before entry of the orders during which the court's jurisdiction can be invoked, to put to put right a plain mistake on the part of the Court; to draw the Court's attention to a fact or point of law that was plainly relevant but was omitted or overlooked; where new facts were discovered after judgment which could not have been uncovered before; or where a party did not have a fair opportunity to consider a matter when it was raised for the first time during proceedings or in the reasons for judgment; Kitoko FFC at [36].
26 The Full Court concluded that Mr Kitoko sought to re-open the matter to raise an allegation of apprehended bias and breach of procedural fairness based on what he perceived to have occurred after the hearing and after the judge had reserved judgment. This not being a matter that he could have addressed in the hearing itself, and making allowances for the fact that Mr Kitoko was self-represented, if he had been permitted to come before the judge, it would have been an available exercise of power to permit Mr Kitoko to re-open the matter and it would have been possible to vary or set aside the orders made on 9 February under r 39.04 if some appropriate basis for relief had been established; Kitoko FFC at [47].
27 In the present case there is no dispute that such a power can be exercised where a judgment is attended by an apprehension of bias or a denial of procedural fairness.
28 It has been noted that the power conferred by FCR 39.04 should be exercised sparingly. As the Full Court noted in Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6; (2012) 200 FCR 296 (Finn, Stone, Perram JJ) at [772], the procedure contemplated by that provision must not be permitted to become an avenue whereby disappointed litigants or their advisors are permitted, in effect, a second chance before the Court. This is soundly based on principles of finality of litigation, efficient use of resources and also the recognition that any second chance must, in the case of a litigant, come in the form of an appeal.
29 In my view the facts do not support the conclusion that the circumstances that arose at the conclusion of the hearing would give rise to a reasonable apprehension of bias.
30 The allegation is that the judge adjourned the Court, requested the applicants to leave the video conference and then conducted the "secret meeting". However, whilst it is apparent (from the audio recording) that the judge requested the applicants leave the video conference after the hearing was adjourned, no evidence supports the allegation of any "secret meeting". Rather, the audio recording in the court room ran continuously from before the hearing until many hours after it was adjourned. I find that the audio recording captured any conversation that was reasonably audible due to the sensitivity of the microphones used. During that time, there was no communication recorded between the judge and Mr Johnson. The mechanical evidence of the recording (which I have heard in part) is supported by the affidavit of Ms Giannopoulos affirmed 19 April 2024, whose transcript demonstrates the same. I infer, having regard to the evident sensitivity of the microphones and the fact that the microphones remained active for a number of hours before and after the adjournment of the hearing, that had there been any such conference, the microphone would have detected it. That conclusion is also independently supported by the affidavit of Mr Gao, who accompanied Mr Johnson at all material times and saw no such "secret meeting". Mr Gao did not give evidence as to when the video connection between the court room and Mr Johnson was disconnected. No doubt that is because Mr Johnson performed that task. However, I accept as truthful his evidence that he and Mr Johnson had a conversation after the conclusion of the hearing. The fact that it was not picked up on the microphone leads to the inference, which I make, that by the time of that conversation, the video connection had been severed. That may well explain why Mr Gao could not recall the judge asking the applicants to leave the video conference, although it is not necessary for me to decide this point. I accept the evidence of Mr Gao that no conference was conducted between Mr Johnson and the judge.
31 On the basis of these materials, I do not consider that the applicants have established that there was any meeting between the judge and Mr Johnson following the adjournment of the hearing on 24 November 2022.
32 Nor do I consider that a basis has been established for a fair-minded observer to reasonably apprehend that the judge might not have brought an impartial mind to the resolution of the proceeding on the basis of the events relied upon by the applicants. I accept that the transcript created by Ms Giannopoulos is an accurate account of what happened, and that the applicants were asked by the judge to sever their video connection with the court room. However, nowhere in Ms Giannopoulos' transcript is there evidence to support the inference that there was the appearance of a conference conducted between the judge and Mr Johnson. The hearing was adjourned, and the judge left the court room. Her Honour returned shortly after. Upon noticing that the applicants had not severed the video connection, she reminded them of the adjournment (which had occurred some 40 seconds earlier) and asked them to leave by pressing the red button on the top right-hand side of their screen. The applicants, seeing that Mr Johnson was still on the screen, assumed that a conference or "secret meeting" was to take place. However, that assumption was simply speculation. In my view a lay observer would likely conclude that the video connection was to be terminated with all parties. I note, from my review of the transcript of the hearing, that Mr Kitoko had had technical difficulties joining the video link at the commencement of the hearing. The judge, noticing that he had not left the meeting, provided assistance by reminding him how to do so. Mr Johnson, as counsel experienced in video hearings, was not likely to have needed such assistance. Nothing that was said or done prior to their departure from the meeting supports the view that the judge's return was for any purpose connected to the hearing. Indeed, no issue was raised by the applicants about these matters until after a decision was published that was adverse to their interests. In this regard, any allowance for the fact that the applicants are self-represented is balanced against their history of repeated applications to the Court and, to my observation, Mr Kitoko's obvious familiarity with and understanding of court processes.
33 Having regard to these matters, I do not consider that a fair-minded lay observer of these events might reasonably have apprehended that the judge might not bring an impartial mind to the resolution of the matters before the Court.
34 Finally, I note that Mr Kitoko submitted that an inference should be drawn on the basis of the principles in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 to the effect that in the absence of evidence from Mr Johnson, his evidence would not support the case advanced by the Minister. The rule in Jones v Dunkel provides that an unexplained failure by a party to, inter alia, call witnesses may in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted that party's case; JD Heydon and R Cross, Cross on Evidence, 7 ed, LexisNexis Butterworths, NSW, 2004 at [1215]; Fabre v Arenales (1992) 27 NSWLR 437. The rule cannot be employed to fill gaps in the evidence or to convert conjecture and suspicion into inference; Cross on Evidence at [1215]; Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2009] FCA 1495; (2009) 84 IPR 22 at [250]-[259]. In the present case, the evidence to which I have referred above positively persuades me that the alleged secret meeting did not take place. No inference under Jones v Dunkel can displace that finding.
35 Accordingly, I reject the argument advanced by the applicants on the basis of apprehended bias.