HER v DIS (No.2)[2025] QMC 7

MAGISTRATES COURTS OF QUEENSLAND

What is this Application about?

1. [1]
   After the Court refused the Respondent’s fourth application for summary dismissal at the domestic violence callover on 5 February 2025, he immediately sought to apply for my recusal and without any prior notice to the Aggrieved.

2. [2]
   In doing so, the Respondent submitted that a Magistrate and Barrister had advised him that I could not make directions for him to file his foreshadowed application. Despite this submission and to ensure procedural fairness, I directed the Respondent to file his foreshadowed application and gave both parties the opportunity to file written submissions.^[1]

3. [3]
   The Respondent did not file an application and written submissions by 12 February 2025 as directed. Instead, he emailed the Registry on 13 February 2025 saying he had been too sick to submit the paperwork and “should be able to submit by cob Friday 14^th February 2025”.^[2]

4. [4]
   It is trite law that parties must comply with Directions of the Court. Parties should not presume an email to the Court seeking dispensation of the Directions after non-compliance will suffice:

3. Orders made by the Court, whether by consent or otherwise, must be complied with.

3. Any party who apprehends an inability to so comply should approach the Court in advance (and in accordance with the terms of any specific liberty to apply) proffering an explanation for the foreshadowed inability to comply. It should be a rare state of affairs indeed in which the Court is approached for dispensation after orders have been breached. In such a circumstance, an explanation is not only warranted, but essential, to explain to the Court why the orders have been breached and to seek any further indulgence. The aforementioned explanations will most appropriately be proffered by Affidavit.

3. …

3. Correspondence to Chambers which will necessarily be read by the Judge is a communication before the Court. As such, an email sent to Chambers becomes a communication with the Court itself.

3. …

3. Lest there be any doubt, parties and practitioners should not interpret the use by Courts of a medium which can also be used for meetings and entertainment, as somehow informalising the solemnity of Court proceedings.

3. Similarly, it would be a serious mistake to confuse the ease of use provided by email as giving rise to a correlative reduction in propriety, professionalism and formality.^[3]

5. [5]
   The Respondent attempted to bring his application without notice to the Aggrieved at the callover on 5 February 2025. He then resisted allowing time for a written application and submissions. He then did not comply with the Court’s Directions for the application brought at his own behest. It is within that context the Respondent seeks the Court’s indulgence.

6. [6]
   The Court’s Directions are to be taken seriously. As a party to the proceeding the Respondent undertakes to the Court to proceed expeditiously.^[4] A party who makes ongoing interlocutory applications with the potential to impede the just and expeditious resolution of relevant issues and contribute to undue delay, expense and technicality^[5] cannot expect special treatment in the disposition of those applications. The Court’s resources for the resolution of disputes - particularly in the high-volume and highly sensitive domestic violence jurisdiction - are in high demand and serve the public, not merely the parties to the proceedings.^[6]

7. [7]
   Parties must comply with Directions - in time, substance and form. The Respondent did not file a formal Application for recusal by the due date. The Respondent did not formally apply for an extension before the due date. The Respondent did not file an Affidavit or medical evidence supporting his request for an extension.

8. [8]
   Despite this insouciance, I note the Respondent is not legally represented. Because of this and in the absence of prejudice to the Aggrieved, I will grant him an extension to file his application until 16 February 2025 and deem his written submission emailed to the Registry on 16 February 2025 an application.^[7] However, the Respondent is now on notice about his ongoing obligations in this proceeding.

Do the Respondent’s submissions show any actual or apprehended bias?

9. [9]
   The Respondent submitted actual or apprehended bias on these grounds:

3. (a)
   The Court’s response to his use of the term “Kangaroo Court” at a previous callover;

3. (b)
   Requiring him to comply with directions;

3. (c)
   Making what the Respondent says are “serious mistakes of law” at a previous mention;

3. (d)
   Continuing to “press toward a hearing”; and

3. (e)
   The allegations are now eight years past and “natural law” has a limitation of six years.

10. [10]
    Actual bias can be inferred from statements or conduct and need not be deliberate, conscious or malicious.^[8] Actual bias requires proof to a ‘high probability’ that the decision-maker brought a closed mind to the issues to be decided or had prejudged them.^[9]

11. [11]
    The test for apprehended bias is whether a fair-minded and well-informed lay observer might reasonably apprehend that the Court might not bring an impartial and unprejudiced mind to the determination of the matter on its merits.^[10] Importantly, the test is objective and a party’s suspicion does not suffice.

12. [12]
    The grounds submitted by the Respondent all relate to case-management and conduct in Court. The exercise of the judicial function includes regulating the Court’s own procedure to ensure fairness, prevent an abuse of its processes and enable it to act effectively within its jurisdiction.^[11] This readily includes managing disruptions in Court,^[12] case management including Directions to progress matters to a hearing^[13] and application of the law to the evidence.

13. [13]
    The recording of each Court attendance in these proceedings speaks for itself. A fair-minded and well-informed lay observer would be aware of the content of those recordings.

14. [14]
    I do not consider a fair-minded and well-informed lay observer might reasonably apprehend I might not bring an impartial mind to the resolution of the issues I am required to decide. That observer would be aware that the Respondent’s then legal representative attended by phone at multiple callovers. That observer would be privy to the recordings of the Respondent’s in-court behaviour and his “Kangaroo Court” comment. That observer would not be satisfied the Court’s response was to suggest the Court had taken sides to prejudge the final issues to be determined.^[14]

15. [15]
    That observer would have understood that contrary to the Respondent’s assertion, his “Kangaroo Court” comment did not attract privilege, even if he now submits that he made it to a “Christian official support person at court”.^[15] The Respondent made the comment as he left the Courtroom. It was heard from the Bench. Others were present. It was insulting to the Court’s integrity and disruptive to the Court’s process. A fair-minded and well-informed lay  observer would be aware that at the next callover, the Respondent’s then legal representative acquiesced to the Court’s addressing of the Respondent’s “Kangaroo Court” comment. That observer would be aware that the Respondent was not charged with, convicted of, or punished for, contempt.

16. [16]
    That observer would be aware that Directions apply to both parties. That observer would be aware that the Respondent’s legal representative did not object to the Court’s Directions when present. That observer would be aware that the Court accommodated the Respondent by giving the Respondent the time that he himself requested to comply with Directions on 4 December 2024. That observer would have read and understood the Respondent’s precedents^[16] as not advancing his application for recusal.

17. [17]
    Directions are a matter of record, a necessary part of case management and subject to appeal. Mistakes of law are a matter for appeal and not a basis for recusal. “Natural law” is a theory of legal philosophy: I have expressed no views of that philosophy. Statute and case law will decide this case.

18. [18]
    Nothing in the recordings, Directions or case management shows any subjective attitudes, views or state of mind showing prejudgment of the issues to be decided: whether a relationship existed, whether the Respondent committed acts of domestic violence and whether it is necessary or desirable to make an order.^[17]

19. [19]
    Public policy dictates that courts should not acquiesce too readily to applications for recusal as it can cause hardship to parties and encourage tactical objections and - particularly in the domestic violence jurisdiction - systemic abuse. The Respondent’s disagreement with the proper discharge of the judicial function is not sufficient to meet the test for actual or apprehended bias.

20. [20]
    The application for recusal is dismissed.