ATTORNEY GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES V MARKISIC [2011] NSWSC 1436

Supreme CourtNew South Wales

Medium Neutral Citation

Attorney General in and for the State of New South Wales v Markisic [2011] NSWSC 1436

Hearing Dates

15 November 2011, 16 November 2011

Decision Date

28/11/2011

Jurisdiction

Common Law

Before

Schmidt J

Decision

Applications for disqualification are refused.

Catchwords

PROCEDURE - courts and judges generally - disqualification - apprehended bias - actual bias - four applications refused - reasons

Legislation Cited

Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005 
Vexatious Proceedings Act 2008

Cases Cited

Attorney-General in the State of New South Wales v Markisic [2011] NSWSC 1304
Attorney-General in the State of New South Wales v Markisic [2011] NSWSC 1333
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Galea v Galea (1990) 19 NSWLR 263
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70
McClymont v The Owners-Strata Plan No 12139 [2009] NSWSC 276; (2009) 74 NSWLR 404
McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504
Palmer v Clarke (1989) 19 NSWLR 158
Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342
The Queen v Simpson; Ex Parte Morrison [1984] HCA 25; (1984) 154 CLR 101
Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568

Category

Procedural and other rulings

Parties

Attorney General in and for the State of New South Wales - Plaintiff/First Cross-Defendant
Dragan Markisic - First Defendant/First Cross-Claimant
Oliver Markisic - Second Defendant/Second Cross-Claimant
The Commonwealth of Australia - Second Cross-Defendant

Representation

Solicitors:
IV Knight, Crown Solicitor (Plaintiff)
Oliver Markisic (In Person)
Dragan Markisic (In Person)
Australian Government Solicitor (Second Cross-Defendant)

Counsel:
Mr JS Emmett (Plaintiff)
Mr DP Robinson SC (Second-Cross Defendant)

File Number(s)

2011/76594

Publication Restriction

None

JUDGMENT

1During the course of the hearing of the defendants' application for summary dismissal of the proceedings, they made, and I rejected, four applications that I disqualify myself from further hearing the matter. One on the basis of apprehended bias and the others on the basis of actual and/or apprehended bias. I also refused to permit warrants for the production of certain computers to be issued and leave to issue certain subpoenas. I indicated that I would later give reasons for those conclusions. These are the reasons.

2The first disqualification application was made by Mr Oliver Markisic, the second defendant, and was supported by the first defendant, Mr Dragan Markisic. The second was made by Mr Dragan Markisic and supported by Mr Oliver Markisic. The other parties did not support either application. The defendants objected to the other parties' views being considered, but in my view the enquiries made were necessary. The applications not only potentially affected the other parties, but if they were applications which they supported, that was an obvious matter which would have to have been taken into account.

3There were then two further disqualification applications, one made by Mr Oliver Markisic, and the other by Mr Dragan Markisic, which I also refused.

4In order to explain my reasons for the conclusions reached, it is necessary to say something about these proceedings and the course which they have taken. They were brought by the Attorney General in March 2011, seeking orders under s 8(7) of the Vexatious Proceedings Act 2008 ('the Act'), prohibiting the defendants from instituting proceedings in New South Wales, without leave of the Court.

5The defendants are brothers who appeared unrepresented. While English is not their first language, they are very articulate and on their own account, very experienced in litigation. On their evidence they are both pensioners. Mr Dragan Markisic has a Bachelor of Economics and was by profession an accountant, senior system analyst/programmer, software developer and computer systems integrator. Mr Oliver Markisic has a Master of Cognitive Science and was by profession an electrical engineer, software developer and computer systems integrator.

6From their submissions it became apparent that amongst other things, the defendants have serious concerns about matters such as the requirements of the Court's Rules; the way in which they are administered by the Court's Registry; the way in which these proceedings have been case managed; various orders made by Registrars; and the way in which the litigation has been conducted by the Attorney General. Like many litigants, they are particularly dissatisfied with the operation of the motion system provided under the Rules and the time, difficulty and expense that it involves.

7The defendants have filed various pleadings and applications in the proceedings, including:

- a first cross-summons filed on 3 June 2011, seeking amongst other things, directions for proper case management; interrogatories; a hearing by jury; numerous declarations in relation to the conduct of various proceedings in State and Federal Courts; that the State of New South Wales and the Attorney General of the Commonwealth be declared vexatious litigants under the Act; advancing certain tortious claims and claiming damages. The defendants named were the Attorney General for the State of New South Wales and the Commonwealth of Australia.

- a requisition for trial by jury, filed on 26 October 2009.

- a motion filed on 26 September 2011, seeking amongst other things, orders for proper case management; leave to issue subpoenas to give evidence to 52 named people; trial by jury; summary judgment in respect of certain notices to admit facts; the dismissal of the summons initiating the proceedings; summary judgment in tort; an assessment of damages by jury; and costs.

- a motion filed on 20 October 2011, seeking amongst other things that the 26 September motion be dealt with; that orders made by the Registrar be set aside; that leave be granted to issue subpoenas to 54 named persons, including the former Prime Minister John Howard and named former and sitting judges of various courts; and that there be a trial by jury.

- a motion filed on 7 November 2011, seeking amongst other things, orders for proper case management; for the Registrar's orders fixing a 3 day hearing to commence on 14 November be set aside; and for the proceedings to be stayed pending hearing of an appeal from a judgment given by Rothman J on 28 October 2011 (see Attorney-General in the State of New South Wales v Markisic [2011] NSWSC 1304).

8At the commencement of the hearing the defendants pressed to have their application for summary dismissal of the proceedings heard and determined, before the parties' other applications were dealt with. I acquiesced to that course, over the Attorney General's objection. While it was anticipated that the dismissal application could be shortly heard, that proved not to be the case. During the course of the hearing the defendants also pursued a number of other oral applications, including the repeated applications that I disqualify myself from hearing the matter. Other applications which were sought to be put orally, I declined to hear, requiring that they be made by motion, which would be considered at the appropriate time, taking the view that they could not be permitted to interrupt the hearing of the dismissal application.

9Documentary evidence has been led by the defendants and the Attorney General. The defendants were not required for cross-examination on their affidavits, but Ms Kavanagh, the solicitor with carriage of the matter from the Crown Solicitor's office, was required for cross-examination in relation to two matters dealt with in one of her affidavits. They dealt with the two judgments which she understood had been given by Rothman J in these proceedings, in relation to the defendants' October motion. Mr Dragan Markisic also later gave some oral evidence about an approach he made to his Honour's Associate after the 28 October judgment was given.

10The defendant's repeated disqualification applications revealed that they do not have a complete understanding of the obligations imposed on the Court by the Civil Procedure Act 2005 ('the Act'), or the law which binds judges called upon to determine a disqualification application. Their approach gave rise to the need to bear in mind Mason J's warning in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352, that judicial officers should not too readily submit to an application that they should disqualify themselves from sitting:

"... Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."

The first bias application

11The first disqualification application was made on the basis of apprehended bias. Before explaining the reasons why this application has been rejected, it is necessary to observe that the hearing has proceeded with certain difficulties. While not accepting the Attorney General's submission that only one of the defendants should be permitted to make submissions, given their joint interests, I did require that they not merely repeat submissions which the other had made, which they supported, but that they restrict themselves to dealing with matters which had not already been dealt with by the other. With some difficulty, the defendants have attempted to abide by that request, but they have not always been successful. It has been necessary to direct that they not repeat what has already been dealt with by the other defendant and that they not repeat themselves, or elaborate on subject matters which have already been dealt with, after I have directed them to move on.

12There have been other difficulties which will not be readily apparent from the transcript. While one of the defendants is on his feet, the other provides an almost running, loud commentary, conducted in another language, in which he appears to be making suggestions about what is to be put by the other, who is on his feet. Occasionally this leads to long delays and on some occasions, this leads to disagreements between the defendants, some of them vehement.

13This situation has plainly sometimes made it difficult for the defendants to follow what other parties are putting, or what I am trying to raise with the defendant who is addressing the Court. Questions or observations directed to the defendants frequently result in lengthy consultation between them, before any response is given. In some instances there is no response, but their discussion appears to divert them from the question posed and they then seek to move to other matters, without first responding. It is thus necessary to ask the defendants to return to the question asked. On occasions they interject and speak over each other, or me if I seek to ask a question, or bring repetitive submissions to a close. The defendants sometimes interrupt each other when they disagree, or seek to move on to deal with other matters which have occurred to them, before the particular matter in hand has been dealt with.

14Given the draconian nature of the relief here sought by the Attorney General, that the circumstances in which the defendants find themselves are very difficult for them to deal with, may readily be understood. They have said something about that and have explained their intent to resist the Attorney General's application, exercising all of their legal rights. The result is that the defendants have been granted latitudes which parties who are legally represented would not be given. Nevertheless, of necessity the difficulties which have arisen have had to be managed, given the obligations imposed by the Act.

15That Act requires that when exercising any power given by the Act, the court must 'facilitate the just, quick and cheap resolution of the real issues in the dispute or proceeding' (s 56). Section 57(1) requires that the proceedings be managed having regard to the following objects:

"(a) the just determination of the proceedings,

(b) the efficient disposal of the business of the court,

(c) the efficient use of available judicial and administrative resources,

(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties."

16Section 58 requires that in making orders and directions the court 'must seek to act in accordance with the dictates of justice, having regard to various specified matters'. Section 59 requires the court to seek to eliminate delay. Sections 61 to 63 gives the court wide powers to give litigants directions as to the conduct of the proceedings, directions which must be adhered to. Section 56(3) imposes the relevant duty upon parties:

"3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court"

17Against this statutory background, in practical terms what this has meant is that steps have repeatedly needed to be taken, in order to ask the defendants to take certain steps, or to insist that they refrain from pursuing others. This has led to certain frustrations on the defendants' part, particularly when I have rejected applications which they have made, in some cases repeatedly.

18In considering the disqualification application, I had regard to the fact that it was over the Attorney General's objection that I determined first to hear the defendant's application for summary dismissal of the proceedings and gave them certain leave to cross-examine Ms Kavanagh. I also did not accede to other submissions urged for the Attorney General as to the course which I should pursue, in relation to a number of other matters which had arisen, which it is unnecessary to outline.

19Conversely, I also took steps which I considered necessary, so far as the defendants were concerned, as I have explained, to ensure that the hearing proceeded in an orderly fashion. While they are unrepresented, it seems on their evidence and submissions that the defendants are very experienced in the conduct of legal proceedings and the practices of this Court, in relation to a variety of matters. In my assessment, the directions and rulings which I gave were necessary in the circumstances which had arisen and could not in these circumstances give rise to any apprehension of bias in the mind of a fair-minded lay observer of these proceedings.

20The first application was put on a number of broad bases. They included that a fair minded observer would form the view that I was biased and would in future be biased; that not only I, but any Supreme Court judge would not be able to distance himself from this case and would not be able to bring an impartial mind to the proceedings; and that if in proceedings before the Court in 2000 brought by Mr Dragan Markisic, evidence led by the State and the Commonwealth had not been accepted by this Court, these proceedings would not have been brought. There had then been an inclination towards Government by this Court, rather than an enquiry which should have been undertaken by the Court, into earlier proceedings before the Family Court.

21The bias was said on this occasion to be revealed by refusal of applications such as one that Mr Emmett, the Attorney General's counsel, be called to give evidence and my failure to allow the defendants to make submissions which they wanted to advance about various matters. It was also complained that I had not accepted an argument that legal professional privilege claimed by the Attorney General in respect of the preparation of an affidavit Ms Kavanagh had sworn, in circumstances where the privilege had been waived, because the defendants alleged that there had been fraud committed in relation to a judgment purportedly given in these proceedings by Rothman J on 7 November (see Attorney-General in the State of New South Wales v Markisic [2011] NSWSC 1333). Adequate reasons had not been given for any ruling. The approach adopted had the result that the defendants had been denied the opportunity to put all relevant evidence before the Court, as to that fraud. They ought to have been given the opportunity to finalise their investigations into their suspicions, as they wished to do.

22In the circumstances the defendants suggested that it was necessary for the Court to make arrangements to have a judge from some other country appointed to preside in the proceedings. This was because I, like many other judges of this Court who had accepted false evidence in other proceedings, was not impartial or fair minded, with the result that the defendants had suffered great injustice over many years. Given allegations of criminal conduct which they had advanced against a former High Court judge, it was also not appropriate for any member of the High Court to preside over these proceedings and so it was necessary for a judge to be brought from some other Commonwealth country.

23I was satisfied that none of these submissions could be accepted. It is not in question that a judge should not sit to hear a case if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that he or she might not bring an impartial and unprejudiced mind to the resolution of the questions involved in the matter (see Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568). The test for disqualification for apprehended bias is well settled and has been repeatedly discussed. For example, the High Court observed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337:

"6 Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), 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 (R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v NSW Bar Association (1983) 151 CLR 288; Re JRL; Ex parte CJL (1986) 161 CLR 342; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41; Johnson v Johnson (2000) 201 CLR 488.). That principle gives effect to the requirement that justice should both be done and be seen to be done (R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259, per Lord Hewart CJ.), a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

7 The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror."

24The High Court went on to say:

"19 Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.

20 This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.

21 It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.

22 The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal."

25It is also settled that what the fair-minded observer can have attributed to him or her is "knowledge of the actual circumstances of the case" (see: Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 87 per Mason CJ and Brennan J (with whom Gaudron and McHugh JJ agreed). That a fair-minded observer could come to the view, in the circumstances that had arisen, that neither I nor any other member of this Court could bring an independent or impartial mind to the determination of the issues arising in these proceedings, cannot be accepted. Broad, unsupported assertions as to errors in previous proceedings and judgments, is not a basis upon which such a claim could be established. Nor is the fact that the defendants have wide ranging complaints about the conduct of the Crown Solicitor, Mr Ian Knight, and against various other people, a basis upon which such a claim could be accepted.

26The complaint in relation to the cross-examination of Ms Kavanagh requires some comment. Cross-examination was permitted in relation to two paragraphs of her second affidavit, where she recounted that Rothman J had given two judgments in these proceedings, on 28 October and 7 November. The authenticity of the 7 November judgment was put in issue. The cross-examination explored how Ms Kavanagh had come to receive an email and a document purporting to be the judgment, which were annexed to her affidavit; what she had done with the documents; and how her affidavit had been prepared. That latter cross-examination reached a point where a claim for legal professional privilege was raised and accepted.

27It was common ground that the defendants had asked Rothman J to hear them in open court, as to two applications which they wished to advance in relation to his Honour's 28 October judgment: one for certain corrections to be made under the slip rule, the other that his Honour reconsider his judgment in identified respects. There has been no further hearing in open court before his Honour and any judgment given on 7 November, was not given in open court.

28In the circumstances it became apparent that a determination of what had transpired in relation to the 7 November judgment was unnecessary, in order for the defendants' application for summary dismissal of the Attorney General's application to be dealt with. That view was later confirmed, when the defendants urged the view that whatever had happened in relation to any judgment given on 7 November, it was not relevant to anything which had to be determined in connection with the summary dismissal application.

29In the ordinary course, if a judgment is given, the Judges' Associate takes the necessary administrative steps to advise the parties; to allocate a medium neutral citation to the judgment; to publish it on the Court's website; and to place a certified copy of the judgment on the file. Communication with parties is frequently undertaken by email. In this instance there was no certified copy of a 7 November judgment given by Rothman J on the file, but such a judgment does appear on the Court's website and a document purporting to be such a judgment was sent to the parties by email, or at least to all parties, other than Mr Dragan Markisic.

30This has led the defendants to hold various opinions, including that his Honour would not have given judgment, without acceding to their request to be heard in open court; that his Honour gave no judgment on 7 November; that the document annexed to Ms Kavanagh's affidavit has been fabricated; that his Honour's Associate did not send anyone a copy of any judgment his Honour had given; even if his Honour had purported to give judgment, he had not done so, because there had been a failure to comply with the applicable Court Rules; even if judgment had been given, his Honour had erred.

31The defendants have a view that there has been a fraud committed by someone in the Attorney General's employ, while the file was not with a judge of this Court. That was a view which they sought to explore through the cross-examination of Ms Kavanagh. There was an objection to questions going to the preparation of the affidavit, legal professional privilege being claimed. The defendants' argued that it did not exist, in the event of fraud. I did not accept the submission, taking the view that more than the mere assertion of fraud was required, before such privilege was waived.

32That the file had been physically in places other than a judges' chambers at certain times was apparent. The matter has been before the Registrar and has been dealt with by the list judge, before it was allocated to me for hearing. All of this did not, in my view, point to a fraud.

33His Honour had advised the parties during the course of the hearing that he would be on leave after 4 November. Obviously that did not prevent his Honour from dealing with the defendants' 4 November application, if he determined it ought to receive his attention. It was a matter for his Honour to determine how he would deal with the application (see s 90(1) of the Civil Procedure Act ). If his Honour determined to give judgment, he was entitled to do so in the absence of the public (see r 36.3 and Palmer v Clarke (1989) 19 NSWLR 158 per Kirby P and McClymont v The Owners-Strata Plan No 12139 [2009] NSWSC 276; (2009) 74 NSWLR 404 per McCallum J).

34His Honour's Associate later allocating the judgment a medium neutral citation; publishing it on the Court's website and advising the parties of the judgment by email, is not out of the ordinary course. That there is not a certified copy of that judgment on the file, is not usual. That does not, however, of itself, suggest any fraud. It is entirely possible that there is an innocent explanation, for example, that there has been an oversight, or because the document has gone astray.

35An enquiry made of his Honour after his return from leave, will readily ensure that any oversight, if that is what has occurred, is remedied. In the unlikely event that there has been a fraud, that will also be revealed by such an enquiry, in which event any appropriate application can then be made.

36The complaint that I had not permitted the defendants to finish their submissions without interruption, had to be considered in the light of the obligations imposed on the Court by the Civil Procedure Act . In that respect, matters of the kind discussed by the Court of Appeal in Galea v Galea (1990) 19 NSWLR 263 at 279 had to be considered:

"It is true that Jacobs J in R v Watson (at 294) expressed the opinion that judicial silence was "a counsel, of perfection". But in Vakauta (at 611; 635; 68, 939) Brennan, Deane and Gaudron JJ said:

"... We respectfully disagree with the application of that observation to a trial judge sitting without a jury. It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown, until they emerged as final conclusions in his or her judgment would not represent a model to be emulated."

In the United States it has been suggested that such silence may even represent a denial of natural justice: cf David L Shapiro, "In Defense of Judicial Candor" (1987) 100 Harvard L Rev 731 at 737; cf also Stead v StateGovernment Insurance Commission (1986) 161 CLR 141 at 145[PDF]; Gordon M Jenkins & Associates Pty Ltd v Coleman (1989) 87 ALR 477 at 484(1989)ATPR 40-974 at 50, 653 and Cavanett v Chambers [1968] SASR 97at 101. It is argued that it may represent a failure of the judicial decision-maker to expose to the party who may be adversely affected (and that party's representatives) preconceptions, opinions and formulating conclusions so that the party has an opportunity, before judgment, to be heard to correct and to persuade. I take considerations of this kind to lie behind Powell J's repeated warnings to the appellant (and through him to his counsel) concerning the inferences he was inclined to draw from the answers given to questions during cross-examination. His Honour was doing no more than to give the appellant (as he earlier did the respondent) the opportunity to know the progress of his thinking and to correct an unfavourable impression if this was the product of passing inattention or inexperience in the giving of evidence.

In judging the suggestion of a supervening apprehension of bias, it is reasonable to assume that the hypothetical lay observer would base the opinion on a fair assessment of the judge's conduct in the context of the whole of the trial. A judgment of the loss of impartiality and neutrality would not be made from a short and emotional exchange taken out of context and then weighed in isolation. Judges, like witnesses, are human. Despite their professional training they are, in varying degrees, likely to show the range of emotions to which humanity is heir. Whilst patience is a judicial virtue, so also is a concern about justice, the efficient conduct of proceedings, and the avoidance of unnecessary delay, including to other litigants awaiting their hearing. Judges should understand the variety of skills in communication that exist in the community. Some people are pedantic, even without wishing to be so. I get the impression that the appellant liked to take fine points of language which might delight a seminarian but which could cause irritation to a busy judge who thereby formed the opinion that he was temporising and evading questions which were embarrassing to him. Some of the expressions of Powell J, combed over in a detailed appellate examination of the transcript, are such that, with hindsight, they could doubtless have been improved. On the other hand, the right, and perhaps the duty, of the judge to expose the development of his thinking to the appellant, and explain and justify what he said, can be viewed as a whole and seen in the context. This is especially so when it is considered that the hypothetical lay observer would most likely also have been irritated by some of the appellant's prevarications and would have been aware that, soon afterwards, the emotional storm had passed and the trial resumed its steady progress on calmer seas. The judgment at great length reviewed the facts and with unusual attention to detail explained, fully and unassailably, the rational bases of the conclusion to which his Honour felt driven."

37As observed in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [13]:

"Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx." (footnote omitted)

38I was satisfied that the defendants' dissatisfaction with the directions and rulings which I had made, was not a basis upon which the discretion to disqualify could properly be exercised. They could not give rise to an apprehension of bias in the mind of a fair minded lay observer.

The second bias application

39The second bias application was made on the basis of actual bias, inconsistency and incompetence. Whether there is any actual bias is a matter of fact which must be determined in light of the matters which the defendants urged revealed the existence of that bias. If those facts had disclosed that such bias exists, the disqualification application had to be acceded to. In my assessment, however, none of the matters relied on evidenced any bias towards the defendants, actual or apprehended. The test for actual bias is that discussed in McGovern v Ku-ring-gai Council [2008] NSWCA 209 (2009) 72 NSWLR 504:

"73 The test of actual bias is stringent: it is unlikely to arise in most cases, so long as the test of reasonable apprehension of bias assumes an informed fair-minded observer: see Laws v Australian Broadcasting Tribunal [1990] HCA 31; 170 CLR 70 at 87 (Mason CJ and Brennan J). That is because the test of apparent bias is set at a lower level: see also Livesey v New South Wales Bar Association [1983] HCA 17; 151 CLR 288 at 293 and The Queen v Watson; Ex parte Armstrong [1976] HCA 39; 136 CLR 248 at 258-263 (Barwick CJ, Gibbs, Stephen and Mason JJ)."

40The defendants submitted that actual bias was revealed by a refusal to allow Mr Dragan Markisic to call on a notice to produce issued and answered in June, a step taken deliberately to damage the defendants' case, and his opportunity to lead available evidence. The result was that I had 'stepped into the arena'.

41It was argued that the way in which that oral application had been dealt with on differing occasions, was contradictory and inconsistent and that the defendants had been denied an opportunity to pursue that matter, which it had been said that they would later be given. That was the result, it was submitted, of my reconsideration overnight and then the adoption of a different course, designed to advantage the Attorney General. This evidenced actual bias. The way in which the matter had been dealt with also revealed incompetence, given the applicable Court Rules and Mr Dragan Markisic's 12 years of experience of the practices of this Court. This also gave rise to an apprehension of bias.

42The position was that on the previous day, while objecting to the tender of an affidavit sworn by Ms Kavanagh, Mr Dragan Markisic relied on a notice to produce documents issued in June, which he complained had been ignored by the Attorney General. It was marked MFI 1. The Attorney General disputed that it had been ignored, its response was produced and marked MFI 2. This was a response which the defendants then accepted had been received, but which they complained was not a proper response. It was suggested by the defendants that an available course to deal with part of the production sought, was for the Court to direct that a Court of Appeal file be produced.

43I noted that there had been no prior request made by the defendants for production of either the Court of Appeal file, or for the Court's assistance in resolving any dispute about the response to the notice to produce. Further submissions revealed that there had been a misunderstanding about a reference to a file made in the answer to the notice. The reference was not to a Court of Appeal file. I concluded the matters raised were not a basis for objection to Ms Kavanagh's affidavit. Further submissions were then developed by the defendants as to the reasons why her affidavit would not be received and the matter moved on.

44The following day Mr Dragan Markisic raised the question of a number of notices to produce, served on the Attorney General and on the Commonwealth. As it transpired, for its part, the Commonwealth had filed a motion seeking orders to set aside the first notice to produce served on it and had also advised the defendants that it would seek to amend that motion, in order to refer to the second notice to produce served upon it. By their September motion, the defendants sought orders to set aside the Commonwealth's motion, but they had sought no orders in relation to the notices served on the Attorney General, or the responses received to those notices.

45I determined that if there was some dissatisfaction with the responses which had been received from the Attorney General, I would not deal with them by way of an oral application. The difficulty had to be dealt with in the usual way, by the defendants putting on a motion, so that all issues lying between the parties in relation to the notices to produce could be dealt with together, at the appropriate time. I also concluded that it was not appropriate to defer hearing the submissions in relation to the defendants' summary dismissal application, which were then partially advanced, by a consideration of any oral applications in relation to the notices to produce. A contrary course was urged by the defendants, given their special position as impecunious unrepresented litigants and the attitude they claimed which the Court's Registry adopted to the motion system, the applicable fee waiver mechanisms and the delay which would result, if the course I had determined was pursued. This was submitted to be unfair and would cause prejudice.

46I refused to depart from the conclusion I had reached. In my assessment, given the very many matters which had already been advanced by the defendants in their motions, and the time and subject matter in respect of which they were then seeking to be heard orally, their application could not be granted. Justice must not only be done to the defendants, but also to the other parties in the proceedings and the hearing had to follow some orderly course. The matter was left in a position where, if the defendants wished to pursue any other orders in relation to the Attorney General's allegedly inadequate response to the notices to produce in question, they would have to be pursued by motion.

47The end result was that I continued hearing the parties' submissions on the dismissal application. A motion was later filed by the defendants and directions were given for written submissions to be provided in relation to all issues lying between the parties about the production sought in the defendants' four notices to produce.

48In my assessment, the rulings which I gave were not inconsistent or contrary to the Rules. They were necessary to be made in the circumstances which had arisen and could not give rise to any apprehension of bias in the mind of a fair-minded lay observer of these proceedings, let alone evidence any actual bias.

The refusal to issue warrants and grant leave to issue subpoenas and the third bias application

49The third bias application was based on various matters, including my refusal to permit the issue of warrants requiring the production of three computers used to send and receive an email from Rothman J's Associate and a copy of the 7 November judgment document and leave to issue a subpoena to Rothman J's Associate, perhaps to his Honour and to the instructing solicitor in the Commonwealth's case, Ms Wikramanayake. It also rested on my alleged reluctance to deal adversely with the Crown Solicitor, Mr Ian Knight, who it was asserted was a powerful person who had intimidated other judicial officers in the past and who had also exercised his power to 'swap' judgments which they have given, for judgments he had produced; Mr Ian Knight's alleged power to conduct himself similarly in future, even in relation to any judgment given in the defendants' favour in these proceedings; that the Attorney General was not in truth behind the proceedings and had not authorised that they be commenced; and that there were deficiencies in the Attorney General's summons, which had been addressed in earlier submissions.

50The defendants' submission was advanced in various ways, including that I was 'too nice' to deal with this problem and that there would be pressure exerted on me to influence an unfavourable outcome. This was advanced in various ways, including by an analogy. It was put that even Mother Theresa could not deal with this problem, it required a judge with a different character to mine, namely that of Churchill, when Prime Minister of the United Kingdom, while resisting World War II.

51The refusal to issue warrants and subpoenas arose in connection with the defendants' wish to investigate their suspicions that there had been a fraud committed in relation to Rothman J's judgment of 7 November. I refused that application, having in mind, not only the considerations earlier mentioned, but also the requirements of s 56 of the Civil Procedure Act . I remained of the view that at the stage which the proceedings had reached, an investigation into what may have occurred in relation to the defendants' request for a review of the 28 October judgment was not required, that not being relevant to a determination of the application that the Attorney General's summons be dismissed.

52I did not accept the submission that the interests of justice required that the defendants be permitted to conduct the investigation which they wished to pursue, for reasons which I have already explained. Nor did I accept that the evidence which Ms Kavanagh had given and that given by Mr Dragan Markisic, that he had delivered the defendants' request to Rothman J's Associate on 4 November and that the Associate had then informed him that his Honour would thereafter be on leave, was contradictory. Nor did I accept that it was necessary to investigate what was claimed to amount to a dispute, by the conduct of an examination of the computers and people in question.

53As I have observed, as it eventually transpired, the defendants themselves later submitted that the 7 November judgment, if given, was irrelevant to what arose to be determined in these proceedings at that point.

54None of these conclusions or rulings in my assessment showed either actual bias, or a basis upon which it could be concluded that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions which arise for decision in these proceedings.

The fourth bias application

55This bias application was pressed because I did not accept the view, variously pressed by the defendants, that the submissions which were being advanced for the Attorney General, as to the matters which would be sought to be established at the hearing of the summons, through judgments on which reliance would be placed, if the dismissal application failed, were not available to be put, because they amounted to giving evidence from the bar table.

56The defendants repeatedly objected, in various ways, at differing points of the submissions Mr Emmett sought to advance. The objections included that material facts could not be stated from the bar table; that false facts were being advanced; that there was no evidence for the submissions advanced; that submissions could not be transferred into evidence; that the Attorney General's counsel should be restrained from putting material facts from the bar table through submissions, to their prejudice; that there had been perjury; that the defendants were entitled to be protected from crimes; that the Attorney General should be required to advance facts through affidavit evidence; a request that the Attorney General himself be called to give evidence; a request that Mr Emmett repeat the 'material facts' advanced in his submissions in the witness box; and by allegations of abuse of process.

57The defendants also explained their concern that the Attorney General would later seek to rely on submissions made in respect of the strike out application as evidence, if the summons is not dismissed. They also insisted that their evidence could not be used to prove the plaintiff's case. They did not accept that the parties' competing positions in relation to their strike out application had to be resolved by the Court in the light of all of the evidence which had been received. They argued that the approach adopted had the result that I was assisting the Attorney General to mislead the Court and that it had the result that I was not being either impartial or independent. The Court had no jurisdiction to receive unsworn evidence.

58On the defendants' case the only way any matter dealt with in the documents in issue could be proven, even if they were judgments, was for witnesses to be called to give evidence about those facts. That being so, the Attorney General could not advance submissions which were based on, or referred to the documents in issue.

59Mr Dragan Markisic also explained that his view was that it was 'my right to make this application whenever I feel the judge is doing some prejudice to me'. The difficulty with that explanation is apparent. That is not a basis on which an apprehended or actual bias application can rest. The rejection of a submission or application that lacks merit does not evidence bias. Any alleged error in the conclusion reached cannot be pursued by a disqualification application. It must be pursued by an appeal, if one is available in the circumstances.

60The defendants' approach brought to mind the High Court's observation in The Queen v Simpson; Ex Parte Morrison [1984] HCA 25; (1984) 154 CLR 101 at 104 that:

"It is quite clear that when there is a suggestion of bias, the court should not proceed either if there is actual bias or if there is a reasonable suspicion of bias. That is not to say, however, that the court must desist from hearing proceedings when somebody wrongly and irrationally suspects bias."

61In my view the defendants' approach to the Attorney General's right to advance submissions in order to resist their application for summary dismissal was plainly wrong, with the result that their repeated objections, variously put as I have explained, could not be accepted, nor could this disqualification application.

62The Attorney General was entitled to advance submissions and to explain why the high onus falling on the defendants had not been met, by reference to the documents on which reliance would be sought to be placed, if the summons was not struck out. Thus submissions were advanced, both by reference to the reasons why the documents in issue could be received in evidence and if they were, what they would establish. The objections which the defendants pressed rested on arguments which they had also advanced in support of their application to have the summons summarily dismissed. The Attorney General was entitled to be heard as to why such an order would not be made. The time for determination of the question of whether or not the documents which the Attorney General sought to rely on were admissible, and if they were, what they could prove, was not during the course of the Attorney General's submissions on the defendants' application.

63In this instance, too, it was apparent that my rejection of the various objections which the defendants had raised to the receipt of the Attorney General's submissions, was not a basis upon which it could be concluded either that actual bias existed, or that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions which have arisen for decision in these proceedings.

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