Federal Court of Australia AZO24 v Registrar, Registry of New South Wales, Federal Court of Australia (No 4) [2024] FCA 1212 File number(s): NSD 942 of 2024 Judgment of: NEEDHAM J Date of judgment: 16 October 2024 Date of publication of reasons 18 October 2024 Catchwords: PRACTICE AND PROCEDURE – application for suppression and non-publication orders made in originating application – interim order made – whether interim order should be continued or made permanent – application refused – order to take effect in one week's time from date of order HIGH COURT AND FEDERAL COURT – application for disqualification of judge on basis of actual or apprehended bias – previous decisions made to dismiss proceedings and interlocutory applications not, without more, a ground for disqualification HIGH COURT AND FEDERAL COURT – application for disqualification of judge on basis of apprehended bias – where judge's appointment to Federal Court of Australia by Governor-General on recommendation of current federal government – where judge recently appointed – reasonableness of apprehension of bias – application refused Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AE, 37AF, 37 AG, 37AI Federal Court Rules 2011 (Cth) r 39.04 Cases cited: AZO24 v Commonwealth [2024] FCA 218 AZO24 v Commonwealth of Australia [2024] FCA 555 AZO24 v Commonwealth (Summary Dismissal) [2024] FCA 1053 AZO24 v Registrar, Registry of New South Wales, Federal Court of Australia [2024] FCA 976 AZO24 v Registrar, Registry of New South Wales, Federal Court of Australia [2024] FCA 1004 AZO24 v Registrar, Registry of New South Wales, Federal Court of Australia [2024] FCA 1151 AZO24 v Registrar, Registry of New South Wales, Federal Court of Australia [2024] FCA 1191 Ogawa (formerly Ms PD) v President of Australian Human Rights Commission (Pseudonym) (2022) 294 FCR 221; (2022) 406 ALR 346 QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 115; (2023) 409 ALR 65 Yau Hang Chan v Harris (No 2) [2011] FCA 143 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 23 Date of hearing: 16 October 2024 Place: Sydney Counsel for the Applicant: No appearance (applicant litigant in person) Counsel for the First Respondent: No appearance (service dispensed with) Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS NSD 942 of 2024 BETWEEN: AZO24 Applicant AND: REGISTRAR, REGISTRY OF NEW SOUTH WALES, FEDERAL COURT OF AUSTRALIA First Respondent THOMAS STEWART, NATIONAL REGISTRAR, FEDERAL COURT OF AUSTRALIA Second Respondent order made by: NEEDHAM J DATE OF ORDER: 16 OCTOBER 2024 THE COURT ORDERS THAT: 1. Interlocutory orders 1, 2, and 4 of the Interlocutory Application filed on 4 October 2024 be dismissed. 2. Interlocutory orders 1, 2, 3, and 5 of the Interlocutory Application filed on 15 October 2024 be dismissed. 3. In relation to interlocutory order 4 of the Interlocutory Application filed on 15 October 2024:- (a) Dismiss application for an order pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth); and (b) The operation of order 1 of Needham J of 28 August 2024 pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth) be vacated as and from 23 October 2024. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT NEEDHAM J 1 The applicant seeks, by way of two Interlocutory Applications, to reagitate a number of matters which have been determined, either by myself in one of the decisions I have given in these proceedings being AZO24 v Registrar, Registry of New South Wales, Federal Court of Australia [2024] FCA 976 (AZO24 (No 1)), AZO24 v Registrar, Registry of New South Wales, Federal Court of Australia [2024] FCA 1004 (AZO24 (No 2)), and AZO24 v Registrar, Registry of New South Wales, Federal Court of Australia [2024] FCA 1191 (AZO24 (No 3)), or by Nicholas J in AZO24 v Registrar, Registry of New South Wales, Federal Court of Australia [2024] FCA 1151 (AZO24 Nicholas J), as well as to seek a final or an extended interlocutory order as to non-publication and/or suppression. I made orders on 16 October 2024 on those two Interlocutory Applications but was unable to give reasons for those orders on that day. These reasons explain the basis of my making the orders of 16 October 2024. 2 The first Interlocutory Application was filed on 4 October 2024 (4 October IA) and seeks four interlocutory orders, the third of which sought that I "no longer preside on any matters in the proceedings pending the determination of the appeal NSD1252/2024" which is the appeal brought from my decision in AZO24 (No 2). I dismissed order 3 on 11 October 2024 and published my reasons on 14 October 2024 (see AZO24 (No 3)). The remaining three orders are as follows: (a) Order 1 seeks the vacation of orders 1 and 2 made on 26 September 2024. The 26 September orders set a timetable for a continuation of non-publication/suppression orders pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth) (FC Act) and have, since, been vacated as the applicant sought that I no longer preside on her matters, and it was appropriate that that issue be determined before I considered the question of ongoing non-publication or suppression. This order was dismissed on 16 October 2024. (b) Order 2 seeks a "stay of execution of proceedings" pending the determination of the appeal from these proceedings. The applicant sought this order before Nicholas J, who dismissed the application (see AZO24 Nicholas J at [8]). The orders sought in the originating process were for review of a decision of the second respondent not to accept a document for filing. Given that the proceedings were dismissed, there is no operative order of which to stay execution. Accordingly, and as no additional grounds apart from allegations of bias or a lack of procedural fairness (as to which, see AZO24 (No 3) and below) have been raised, this order was dismissed on 16 October 2024. (c) Order 4 seeks for service to be dispensed with. This order was unnecessary given that I have already waived any requirement to serve the originating application and any accompanying document on the first respondent in orders made on 31 July 2024, and the second respondent has filed a submitting notice. This order was also dismissed on 16 October 2024. 3 The second Interlocutory Application was filed on 15 October 2024 (15 October IA) and sought that I set aside the orders made on 11 October 2024 (order 1), and disqualify myself (order 2), both orders being expressed to be on the basis of apprehended bias and procedural unfairness. The first order is sought also "so as not to cause prejudice to the proper administration of justice". Order 3 seeks as an alternative that order 2 of the orders made on 11 October 2024 be set aside pursuant to r 39.04 of the Federal Court Rules 2011 (Cth) (the power to vary or set aside a judgment or order before it has been entered). A number of grounds are set out in sub-paragraphs 3(a)-(e) of the 15 October IA. 4 The basis for dismissal of these orders was elucidated upon in the submissions filed by the applicant on 15 October 2024. In those submissions a number of contentions are made that I acted "in bias", "in prejudice toward the applicant throughout the proceedings" and that I had not acted "in the interests of the applicant and therefore in the interests of justice". While the two IAs alleged apprehended bias, the grounds given appear to be allegations of actual bias. As pointed out in AZO24 (No 3), disqualification of a judicial officer needs more than merely an allegation that I have acted less than impartially, and certainly more than merely having determined questions against her in the past. See QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 115; (2023) 409 ALR 65 at [37]-[38] per Kiefel CJ and Gageler J (cited at paragraph [10] of AZO24 (No 3)); Yau Hang Chan v Harris (No 2) [2011] FCA 143 at [27] per Katzmann J where her Honour said "a bare assertion is not enough". 5 Further, it is alleged that as I was appointed "recently on recommendation by the current Government, which are the First respondent in my primary proceedings", there is an apprehension of bias when a "new judge freshly minted by those respondents" is allocated to hear her matter. It is further contended in her submissions that I am under instruction of the current Prime Minister and the current Attorney-General. In support of those submissions, it is contended that I am acting "in the same manner as J Kennett has been" (presumably, in dismissing her applications) and that this factor is demonstrative of unwarranted bias. 6 The fact that I have been recently appointed by this Government is not a ground for my disqualification. It should be noted that the Commonwealth of Australia is not a party to these proceedings. The applicant sought Kennett J's disqualification for similar reasons, which his Honour determined in AZO24 v Commonwealth [2024] FCA 218, in which the Commonwealth of Australia was a respondent. Applying the steps identified in QYFM, Kennett J at [14] was "not persuaded that a fair-minded and appropriately informed lay observer might reasonably apprehend that I might not bring a fair, impartial and independent mind to the determination of this matter on its merits." In coming to this conclusion, his Honour stated at [11]-[13]: First, "the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits" is that, in the case of any judge of this Court appointed since 2017, the judge was appointed to their judicial office on the advice of individual Ministers against whom serious allegations are made. Secondly, as I understand it, "the logical connection between that factor and the apprehended deviation from deciding that question on its merits" is that the judge may be reticent about making findings of serious impropriety against a Minister or former Minister, when one of that Minister's decisions was the decision to advise the Governor-General to appoint the judge. Thirdly, as to the reasonableness of an apprehension that the judge might therefore decide the case otherwise than on its merits, the following points need to be noted. (a) The hypothetical observer is appropriately informed. They must therefore be taken to know that judicial appointments are not made by individual Ministers, but by the Governor-General with the advice of the Executive Council, usually (at least) following a decision by the Cabinet. (b) The hypothetical observer must also be taken to understand that judges of this Court have security of tenure up to the age of 70 years, subject only to removal on an address by both Houses of Parliament for proved misbehaviour or incapacity (Constitution, s 72(ii)), but cannot hold office after turning 70. Leaving aside specific personal issues (none of which were suggested here), a judge therefore has no incentive to try to protect the interests of Ministers involved in their appointment. (c) Further, appointment of a judge on the advice of a particular Minister does not create any ongoing connection between the judge and the Minister that might lead to awkwardness or discomfort in making findings against the Minister (in contrast to, for example, a friendship or familial relationship). (d) The judge may hold a private view that the decision to recommend their appointment demonstrated wisdom and perspicacity, and may therefore be slow to accept that the makers of that decision have been involved in misconduct. However, this possibility falls into the category of preliminary views on an issue rather than something pointing to a potential inability to decide the issue on its merits. (e) What is left is the possibility that, as a result of good will or gratitude towards those responsible for their appointment, the judge may find it hard to make serious findings against those persons. To the extent that this goes beyond a preliminary view, and suggests the possibility of an improper fetter on the judge's capacity to decide the case on its merits, my view is that the hypothetical observer would not regard it as a realistic possibility. Of course, the case might take on a quite different appearance if the judge had some specific personal connection or affinity with the Minister concerned. However, it has not been suggested that that is the case here. 7 I agree with his Honour's reasoning. 8 A number of the complaints set out in the submissions relate to timetabling and other changes to the procedural listings of the matter, and ascribing to those changes some ulterior motives; for example: Suddenly wishing to revisit the order made on 28 August 2024 (interim order) of the interim suppression and non-publication of identity on account of it being brought to her attention on 25 September 2024 following J Kennett's refusal to accept the applicant's application to maintain the interim order in the primary proceedings pending appeal; and The order on 14 October 2024 for hearing on 16 October 2024, which is to hear the new interlocutory application to set aside the 11 October 2024 orders, noted in the email that the decision will be reserved. This appears to be another tactical play because of the appeal hearing scheduled the next day of 17 October 2024 in NSD1252/2024, in avoidance of any judgement made on 16 October 2024 by J Needham being able to be suspended by the appeal judge on 17 October 2024. By intending to "reserve" her judgement provides the applicant with a lack of clarity on the short minutes of order I may wish to submit prior to the appeal hearing of 17 October 2024 or request orally on the day of the hearing, which may include orders to suspend any adverse action by J Needham on 16 October 2024. Further, J Needham has not vacated the order number 2 or 3 of 11 October 2024 orders, therefore could dismiss the application made by the applicant dated 12 October 2024 and proceed to make a determination from her 11 October 2024 orders, which again would be a deceptive action by her Honour. 9 Each of these (which are only two examples of some 19 allegations of "bias and prejudice") are said to be "contrary to the interests of the applicant" and "obstructive and frustrating to the applicant". However, it is not the case that timetabling changes are "intentional delays" – instead, the applicant has continued to file Interlocutory Applications which have required me to determine which aspect of her case need to be considered in which order. For example, the first matter complained of in paragraph [8] above was a listing of the matter to determine the s 37AI interim non-publication and suppression order, once the proceedings before Kennett J had finalised and the s 37AI order made by his Honour had ceased to have effect on 23 July 2024. The frustration caused by timetabling changes or delays cannot ground an assertion that I have acted in "actual bias". 10 The applicant's two affidavits (dated 27 September 2024 and 3 October 2024) were considered by me in AZO24 (No 3). No further evidence has been proffered apart from the list of complaints in the submissions. Accordingly, I decline to disqualify myself or to vacate the orders made on 11 October 2024 for reasons of actual or apprehended bias, procedural unfairness, or by way of prejudicing the proper administration of justice. 11 Order 5 of the 15 October IA sought dispensation with service and is misconceived for the same reasons I set out in relation to order 4 of the 4 October IA above. 12 Accordingly, I dismissed orders 1, 2, 3 and 5 of the 15 October IA on 16 October 2024. 13 Order 4 of the 15 October IA seeks, in effect, an order under s 37AF of the FC Act or to continue the orders made under s 37AI which is linked to the determination of the application for leave to appeal from the orders of Kennett J in AZO24 v Commonwealth (Summary Dismissal) [2024] FCA 1053 (AZO24 Kennett J). The ground upon which she relies to support the making of an order under s 37AF appears to be s 37AG(1)(a) – "the order is necessary to prevent prejudice to the proper administration of justice". 14 Sections 37AF and 37AI provide: 37AF Power to make orders (1) The Court may, by making a suppression order or non‑publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of: (a) information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or (b) information that relates to a proceeding before the Court and is: (i) information that comprises evidence or information about evidence; or (ii) information obtained by the process of discovery; or (iii) information produced under a subpoena; or (iv) information lodged with or filed in the Court. (2) The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1). 37AI Interim orders (1) If an application is made to the Court for a suppression order or non‑publication order, the Court may, without determining the merits of the application, make the order as an interim order to have effect, subject to revocation by the Court, until the application is determined. (2) If an order is made as an interim order, the Court must determine the application as a matter of urgency. 15 The orders I made on 28 August 2024 provided as follows: 1. Pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth), until further order: a. the identity of the applicant not be published or otherwise disclosed other than to court staff, any legal advisers retained by the applicant, the respondents and their lawyers. b. the applicant be referred to by a pseudonym in any public notifications and disclosures of information in relation to the proceeding. 16 In relation to order 4 of the 15 October IA – the question of whether I should make an order under s 37AF or to extend my previous order of 28 August 2024 pursuant to s 37AI of the FC Act – on 16 October 2024 I ordered: 3. In relation to interlocutory order 4 of the Interlocutory Application filed on 15 October 2024: (a) Dismiss application for an order pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth); and (b) The operation of order 1 of Needham J of 28 August 2024 pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth) be vacated as and from 23 October 2024. 17 As I noted in AZO24 (No 3) at [16]: … all that remains [in this matter] is to make orders for the applicant to file any application she may wish to make under s 37AF(1) and any evidence upon which she seeks to rely in support of that order. Given the fact that she has been on notice for some time that this matter will be heard and that I was considering whether the interim order for anonymisation should be continued, I order that any such application, including evidence in support, be filed by 4.00 pm, Monday, 14 October 2024. If the applicant wishes to be heard on this matter, I list it for 10.15 am on Wednesday, 16 October 2024. If there is no appearance on that occasion, I will reserve my decision at 10.15 am. 18 The applicant did not appear before me on 16 October 2024. I requested that the matter be called outside the Court, which again yielded no appearance. She has not filed any further evidence except for the two affidavits already considered and relied upon by her. She has filed submissions, but those submissions do no more than say, once more, that she has medical reasons for seeking an extension of the interim order under s 37AI, or a permanent order under s 37AF, and that she had concerns about an "optical device" which it is submitted is evidence of unlawful surveillance. 19 In relation to her medical concerns, she has said in submissions that she is unable to see her doctor until 30 October 2024 for "a new medical letter". As noted in AZO24 (No 3) the current "medical letter" is not relevant to that aspect of the matter and only sets out that she suffers from an illness. In deciding to make a suppression or non-publication order, I am also required by statute to "take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice" pursuant to s 37AE of the FC Act. The mere fact of an illness is not a sufficient reason to abrogate the principles of open justice (see Ogawa (formerly Ms PD) v President of Australian Human Rights Commission (Pseudonym) (2022) 294 FCR 221; (2022) 406 ALR 346 at [28]-[29] per Rares, Perry and Hespe JJ). Additionally, the applicant has had two applications for special leave refused by the High Court in proceedings where her name has been published. This tends to undermine her view that anonymisation is a vital part of her ongoing litigation requirements. 20 I dealt with the applicant's concerns as to the "optical device" in AZO24 (No 3) at [12]. Her security concerns were comprehensively dealt with in AZO24 Kennett J, and at [23] the applicant was found to have no realistic prospects of being able to establish the factual allegations upon which her claim rests, for the reasons given by his Honour at [24]. I have reviewed the evidence as to the "optical device" and can see no connection between it and any need for the applicant to remain under a pseudonym, even if I were to disregard the reasons expressed by Kennett J as to the applicant's likelihood of success in AZO24 Kennett J. 21 In her submissions, the applicant contends that I should have regard to her primary proceedings, given that "those proceedings should be the main repository for the application and evidence to be considered". I have made very specific orders that any evidence upon which the applicant seeks to rely should be filed in these proceedings, and she has in fact filed and relied on two affidavits. It is insufficient merely to refer to the existence of evidence in other proceedings before the Court, without specifying what that evidence is nor its relevance to the orders sought in these proceedings, and without seeking to tender it on the relevant Interlocutory Application. 22 In the absence of any reasons, supported by evidence, that the non-publication/suppression order should be extended on an interim basis (which would go against the requirement of s 37AI(2) that the application be determined as a matter of urgency) or that a permanent order should be made, I was minded to vacate the order of 28 August 2024. At [14] and [16] of her submissions, the applicant contends that anonymisation should follow the primary proceedings – i.e., it should reflect orders in NSD 1036/2023 and any appeals therefrom. Two additional factors were raised by the applicant. The first is that she has a case management hearing before Halley J on 17 October 2024 in the appeal from my decision in AZO24 (No 2) in which, as noted above, she seeks an interim non-publication/suppression order. The second is that Wigney J, as Duty Judge, made an order on 14 October 2024 in NSD 1036/2023 (the original proceedings which were determined by in AZO24 Kennett J, and from which leave to appeal was refused by Abraham J in AZO24 v Commonwealth of Australia [2024] FCA 555) in which Wigney J set down a timetable for provision of evidence and submissions for an interlocutory application seeking a pseudonym order. 23 Given that the applicant has not one, but two, opportunities to raise the question of ongoing non-publication and/or suppression, in her primary proceedings (or its appeal) and in the appeal from my dismissal of this matter, it seems to me that where no evidence supporting a continuance of the interim s 37AI order has been provided, it would be appropriate to provide some time for the applicant to manage her other proceedings. As a result, I ordered that the s 37AI order cease to have any operation after one week from the making of the order, i.e., from 23 October 2024. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Needham. Associate: Dated: 18 October 2024