Federal Court of Australia Raghubir v Nicolopoulos [2022] FCA 311 File number: NSD 1021 of 2021 Judgment of: LEE J Date of judgment: 22 March 2022 Date of publication of reasons: 30 March 2022 Catchwords: PRACTICE AND PROCEDURE – application for disqualification of a Judge on the ground of actual bias – allegation of '"Deceptive" conduct by giving Legal Advice to the Respondent to file an Interlocutory Application / Security for Cost"' – allegation of "lies, cheating, dishonesty, fraud and corruption" – where Judge sought to apprise both applicants in person of matters that they may wish to consider at the first case management hearing – application dismissed PRACTICE AND PROCEDURE – application for security for costs – where the appellant is apparently impecunious – where any order for security would inevitably be the subject of collateral disputation – where matter listed for hearing before Full Court – whether in the interests of justice – application dismissed Cases cited: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 15 Date of hearing: 22 March 2022 Counsel for the Appellants: The Appellants appeared in person Counsel for the First Respondent: Ms K Conte-Mills Solicitor for the First Respondent: Harb Lawyers ORDERS NSD 1021 of 2021 BETWEEN: MS RENUKA RAGHUBIR First Appellant MR VIRENDRA SINGH Second Appellant AND: CHRISTINE NICOLOPOULOS First Respondent STRATA MANAGER SP7526 Second Respondent STRATA TREASURER SP7526 (and others named in the Schedule) Third Respondent order made by: LEE J DATE OF ORDER: 22 March 2022 THE COURT ORDERS THAT: 1. The interlocutory application filed by the appellants on 14 March 2022 be dismissed. 2. The interlocutory application filed by the first respondent on 10 February 2022 be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Delivered ex tempore, revised from the transcript) LEE J: 1 Before the Court are two interlocutory applications. The first application, filed by the first respondent, Ms Christine Nicolopoulos, on 10 February 2022, seeks security for costs in relation to an appeal that has been listed to be heard by the Full Court on 17 May 2022. The second application, filed by Ms Renuka Raghubir and Mr Virendra Singh on 14 March 2022, is in an irregular form, but its essential flavour can be ascertained by setting out prayer 1, which is as follows: We are Seeking an Order that Justice Michael Lee to be replaced by another "Honest" Judge / Judicial Officer because Justice Michael Lee has committed dishonesty, Corrupt Conduct, was biased, "gave legal advice to the Respondent to apply for Interlocutory Application / Security for Costs", breached his Code of Conduct Legislation, did "Deceptive" conduct by giving Legal Advice to the Respondent to file an Interlocutory Application / Security for Cost", pursuant to "The Judicial Officer's Code of Conduct / Legislations". And that's what the Respondent has done, filed an Interlocutory Application / Security for Cost, when the Respondent did not know what it was. Please refer to the Court Case of Friday 28 January 2022. The manner in which Justice Michael Lee is Case Managing this Court Case is dishonest, we don't trust him, he gave Legal Advice to the Respondent to apply for "Security for Costs", and talked about the "Costs" from the Sutherland Local Court. When we first lodged an Interlocutory Application on the 23 February 2022, it did not get accepted BUT we believe that Judge Michael Lee quickly contacted the defendant, Claude Harb and Karen Conte-Mills to lodge their Interlocutory Application which is accepted by the Federal Court of Australia, BUT the dates don't match. This is lies, cheating, dishonesty, fraud and corruption going on with Justice Michael Lee. The dates seems backdated because Justice Michael Lee stated "within 7 days' and as soon as we lodged our Interlocutory Application, he contacted them which was out of time. We asked Justice Michael Lee where is Wayne Condon, do you have the "Costs", Justice Michael Lee cut us off and changed the topic. We believe he has financial interest in this case with the Respondent, Respondents Lawyer and Barrister behind the scene; he is fraud and corrupt Justice. That's how we perceive him. We don't trust Justice Michael Lee to Case Manage this Court Case. Justice Michael Lee is biased, dishonest and unfair. 2 As I indicated to the parties when the matter was called on today, given the second application is one based upon allegations of actual bias, dishonesty and corruption, it is appropriate that the application for disqualification be dealt with prior to any other step being taken in the proceeding. Ms Raghubir did not beat around the bush. She was not going to "tippy-toe" around. She made plain that this was not a mere allegation of apprehended bias; but rather one of actual bias. It needs to be dealt with immediately for the obvious reason that the Court needs to be properly constituted in order to exercise judicial power, and if the presiding judicial officer is infected by actual bias, then the Court would not be so constituted. 3 The New South Wales Court of Appeal observed in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 (at [68]–[70] per Emmett, Gleeson, and Tobias JJA) that: (a) finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) (Sun v Minister) 81 FCR 71 at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited. Where the issue is actual bias in the form of prejudgment, the appellant had to establish that the primary judge was "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented": Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [72] per Gleeson CJ and Gummow J (Hayne J agreeing at [176]). See also Kirby J at [127]. As Gleeson CJ and Gummow J observed in that case at [71]: "The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion." (Original emphasis). 4 Doing the best that one can to synthesise the somewhat disorganised and repetitive submissions made in support of the disqualification application, it appears there are two bases for the interlocutory application, both of which are reflected in prayer 1 as outlined above. 5 The first is that, in effect, I demonstrated my actual bias and dishonesty by entering the arena to give legal advice to the first respondent. The transcript does not bear out this characterisation. The matter first came before me for a first case management hearing on 28 January 2022. Both parties were unrepresented. At the beginning of the case management hearing, it became apparent to me that, following the dismissal by Rares J of the proceeding below by reason of a want of jurisdiction, proceedings seeking the same relief had been commenced in the Supreme Court of New South Wales. In this regard, I had an exchange with Ms Raghubir along the following lines (T5.33–7.45): HIS HONOUR: Look, what I need to do today is just focus on what's happening in relation to this appeal. Now, the proceedings were dismissed because, as you know, the [C]ourt found there was a lack of jurisdictions, and you've now gone away and commenced proceedings where you're seeking the same substantive relief in the Supreme Court. The first issue I want to clarify this morning is does that mean that you wish to pursue the appeal against Rares J's orders, or are you just content now to proceed along with the Supreme Court proceedings? MS RAGHUBIR: Actually, both now. HIS HONOUR: Both, did you say? MS RAGHUBIR: We're appealing both the decision Rares J has made. HIS HONOUR: Say – I'm finding it a little bit difficult to hear from you. MS RAGHUBIR: Because - - - HIS HONOUR: I'm sure that's not your fault. I'm sure that's the nature of the connection, but, as I understand it, what you said is that you want to pursue both the Supreme Court proceedings and you also wish to pursue the appeal. Is that right? MS RAGHUBIR: Yes, your Honour. HIS HONOUR: Okay. MS RAGHUBIR: The proceedings he dismissed for want of jurisdiction. We also appealed that one because the defendant has defamed us so badly, and due to her the RG Property ..... in Sydney – they blacklisted us on the national database, and national database is throughout Australia. Not only in New South Wales, but it's also in Northern Territory, ACT, Melbourne, South Australia, everywhere. It's nationally. Throughout Australia. We have been blacklisted. HIS HONOUR: Yes. No. No. No. I understand that. I understand that. Can I just say to you – and I'm not here obviously enough to give you any legal advice, but an order of superior court of record such as the Supreme Court of New South Wales would take effect throughout the entire Commonwealth of Australia. So, you need not commence proceedings in the Federal Court for that reason alone, but, in any event, you challenge his Honour's findings in relation to jurisdiction and you bring your application. Now, what the [C]ourt would propose to do is to try to have this matter, if it's going to be pursued, heard in the May sittings. If it is going to continue, the [C]ourt will propose to deal with it in May. *** HIS HONOUR: … there are two options open to Ms Raghubir. One is to, as it were, discontinue the Federal Court proceedings and just concentrate her attention on the Supreme Court proceedings. Now, I don't know what effect that has in relation to limitations issues and the like, but that is one course that's open to her, subject to her obtaining legal advice. The other course is to appeal or seek to appeal in this court, because she actually has to seek leave to appeal, and if she was successful she can pursue those proceedings in the Federal Court. If she's unsuccessful, then, presumably, what she will be doing is pursuing the Supreme Court proceedings. Now, I can't, as it were, get into the arena of advising her which of those courses she needs to take. She needs to take her own legal advice concerning that, but that's the situation I'm confronted with. What does appear clear is that if there is an attempt to challenge Rares J's judgment in this court and that is going to be maintained, then that ought be dealt with as quickly as possible, and hopefully with at least cost as possible, hence my desire if it is being pursued to put it into the May list. Now – so, as I understand it, your intention is to continue with the appeal, Ms Raghubir. I'm sorry. I hope I'm pronouncing that correctly. MS RAGHUBIR: Your Honour, Raghubir. HIS HONOUR: Yes. In which case what I'm going to do, I think – I will make some directions readying this matter for an appeal to go into the May list, and in due course you will be notified of a date in May when the matter will be determined. All right? 6 Having ascertained that it was necessary for the matter to be dealt with by the Full Court, the following exchange occurred with Ms Nicolopoulos (T8.3–10.31): MS NICOLOPOULOS: Just to let you know that I've also got an outstanding matter with Mrs Raghubir in the District Court. She has appealed the decision to annul the decision to dismiss the APVO in 2020. So, there's $60,000 later in legal costs for me. The reason Mrs Raghubir has questioned whether Wayne Condon is around or not is I cannot afford him anymore. I'm at my last dollar basically in trying to protect myself against the constant harassment through the court system by this woman. That is what I have to say. HIS HONOUR: Well, can I ask you this question. [Justice] Rares made a costs order in your favour. MS NICOLOPOULOS: Yes. Yes. Because - - - HIS HONOUR: What is the other position relating to costs? MS NICOLOPOULOS: The other position relating to costs was regarding the APVO matter, which my lawyer appeared to every court appearance over the course of two years, which would probably be about 10 or 15 appearances, and which Mrs Raghubir did not attend for various reasons, and COVID and all that sort of stuff. HIS HONOUR: Now, did you get – were there costs orders made in your favour in those proceedings? MS NICOLOPOULOS: I – the magistrate asked me if I would like to ask for a costs order, and I said, "Look, to be honest, I just wanted this to be over". If I ask for a costs order then Mrs Raghubir would be challenging me again and it would go on for another two or three years, and I'm absolutely at my wits end and am totally stressed and I'm very emotional. HIS HONOUR: No. I understand and I don't want - - - MS NICOLOPOULOS: I have not seen – your Honour, I have not seen this woman since February 2020. HIS HONOUR: Yes. MS NICOLOPOULOS: And she's still pursuing the matter for an AVO against me, which is absolutely ridiculous. I do not know where she is and I do not want to know where she is. HIS HONOUR: Well, can I - - - MS NICOLOPOULOS: I want her to leave me alone basically. HIS HONOUR: I understand there's - - - MS NICOLOPOULOS: Sorry. I'm sorry for being emotional, but I'm - - - HIS HONOUR: Like a lot of defamation proceedings, I understand that there's a lot of history in relation to this, history from both sides, and I'm cognisant of that. Can I just – you mentioned that you may be getting legal advice, Ms Nicolopoulos. Is that correct? MS NICOLOPOULOS: Yes. Yes. Yes. Yes. It is. HIS HONOUR: Well, one of the issues - - - MS NICOLOPOULOS: I'm hoping he will appear for – yes. No. Sorry. Go ahead. HIS HONOUR: One of the things that I'm doing is case managing this appeal. MS NICOLOPOULOS: Yes. HIS HONOUR: That means that any interlocutory application – that means that any sort of application that is made in relation to the appeal before May that I would dealt with. It's a matter for you, but one of the things that advice may be obtained in relation to is whether or not some sort of application should be made for security for costs in relation to the appeal, but I will leave that between you and your lawyers, and, of course, I've got no view one way or the other whether such an order would be appropriate. MS NICOLOPOULOS: Yes. HIS HONOUR: And I would hear from both of you in relation to that. MS NICOLOPOULOS: Yes. What - - - HIS HONOUR: But if such an application is to - - - MS NICOLOPOULOS: So, what does that – yes. So, what does that mean, security for costs? HIS HONOUR: Well, what it would mean that if you have an outstanding costs order below and the [C]ourt can order in its discretion that an amount be required to be put up to cover your legal costs in relation to the proceeding in advance of the hearing, and if that amount of money is not put up, then the proceeding be stayed. MS NICOLOPOULOS: Okay. Okay. HIS HONOUR: And I express no view one way or the other whether it be appropriate to make such an order. MS NICOLOPOULOS: Okay. I will definitely bring that up. HIS HONOUR: But it does occur to me that that is a matter which may be something which legal advice should be obtained in relation to, and if that's the case then I would bring it back at a date convenient to both of you to determine any issue of security for costs. MS NICOLOPOULOS: Yes. Okay. HIS HONOUR: And I would do that on very short notice. MS NICOLOPOULOS: Okay. So, as soon as I speak to my lawyer and I will bring that – and he just needs to contact ... yes. HIS HONOUR: You speak to your solicitor. You make a determination of whether or not there's any application you make in these proceedings. MS NICOLOPOULOS: Yes. HIS HONOUR: I'm not going to make any orders today. MS NICOLOPOULOS: Yes. Okay. HIS HONOUR: Other than tentatively to indicate to the parties that my intention is to fix it in the May Full Courts. MS NICOLOPOULOS: Yes. HIS HONOUR: If you do wish to bring an application on those lines, then your solicitor should notify my associate and I will fix a time probably within the course of a few days to hear and determine the security for costs application. 7 Where there is an allegation of actual bias in the form of prejudgment (which, by parsing the somewhat florid language in the interlocutory application, seems to be the case here), as the above extract from Reid v Commercial Club (Albury) Ltd explains, the issue is whether it is established that the judge is so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented. I do not believe that such a contention can be made, let alone be reasonably made. It seemed to me, in circumstances where the respondent was likely to obtain legal advice, and interlocutory applications could be brought, including an application for security for costs, arrangements would need to be made for any such application to be dealt with. I was careful to make it clear I was not prejudging any such application. 8 The prospect of such an application was raised with a litigant appearing in person (in much the same way as I raised the issue with Ms Raghubir concerning whether or not it was appropriate to continue with any appeal, notwithstanding the commencement of the Supreme Court proceeding). As the transcript demonstrates, my attempt, during the course of the first case management hearing, was to apprise both parties of matters that they may wish to consider. Far from that demonstrating actual bias, that appears to me to be an appropriate way to deal with people who are unrepresented. 9 Although the matter has not been put on the basis of apprehended bias, I would reach the same conclusion that any such assertion (if it was made) would be without foundation. This is because, even if I was to look at the question of disqualification through the prism of whether there had been an appearance of bias, and my focus was on the perception of the hypothetical observer, I do not believe that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of any question relating to security for costs, or as to case management of the appeal generally: see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (at [6] 344–345 per Gleeson CJ, McHugh, Gummow, and Hayne JJ). 10 In reaching this conclusion, I am conscious of the fact that the decision about whether I might not bring an impartial mind to the resolution of an issue does not involve prediction: the question is one of possibility (albeit one that is real and not remote), not probability. 11 Needless to say, for completeness, I should note that the second basis is the vague suggestion (apparently made seriously) that I have a financial interest in the outcome of the case and have in some way betrayed my judicial oath. These contentions are not only risible as a matter of fact, but I also consider they would be rejected by any reasonable observer as a matter of perception. 12 The application for disqualification was not soundly based. 13 Turning to the question of security for costs, I have decided that it would not be appropriate to make an award of security. Whatever else may be unclear, there are two things evident from the materials filed by the appellant in this case. The first is the likelihood that any award of security for costs would not be paid (because the appellant is apparently impecunious); and the second is that any order for security would almost inevitably be the subject of collateral disputation, involving further Court time and the possibility of an application for leave to appeal elsewhere. 14 I do not think that any collateral disputation is in either party's interest, nor is it in the interests of the Court or the administration of justice generally. Further, such disputation would not serve to facilitate the overarching purpose, being the inexpensive and expeditious resolution of the Full Court proceeding. In circumstances where a date before a Full Court can be obtained in May this year, it seems to me that the best course, as a matter of discretion, is for no security to be ordered, and for the matter to be resolved as between the parties at the final hearing before the Full Court in May. In the end, counsel for the respondent did not actively oppose this course. 15 Accordingly, I decline to make the orders for security. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee. Associate: Dated: 30 March 2022 SCHEDULE OF PARTIES NSD 1021 of 2021 Respondents Fourth Respondent: STRATA COMMITTEE SP7526 Fifth Respondent: CHAIRPERSON SP7526 Sixth Respondent: SECRETARY SP7526 Seventh Respondent: OWNERS CORPORATION OF STRATA PLAN 7526