[2025] SASCA 116

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE B DOYLE) CIV-25-002750 Applicant: NATALE LAURO Other: MR E LAURO (AS LITIGATION GUARDIAN) Respondent: MINTER ELLISON (A FIRM) Counsel: MR R HARMS - Solicitor: MINTER ELLISON Hearing Date/s: On the papers File No/s: CIV-25-010976 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. LAURO v MINTER ELLISON (A FIRM) [2025] SASCA 116 Judgment of the Court of Appeal (The Honourable President Livesey and the Honourable Justice Bleby) 9 October 2025 APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - LEAVE TO APPEAL This is an application for leave to appeal concerning, amongst other matters, an objection to a judge sitting on a taxation on the grounds of ostensible bias, as well as an objection to a single judge of the General Division sitting on an appeal against that and other decisions of the taxing judge on the grounds of ostensible bias. The applicant, Mr Lauro, had made three applications for the recusal or disqualification of the appeal judge. Mr Lauro objected to Livesey P and Bleby JA hearing the present application on the grounds of ostensible bias. The objections appeared to be a combination of pre-judgment (in the case of Bleby JA) and association (in the case of Livesey P and Bleby JA). Held (the Court), dismissing the applications to disqualify and refusing leave to appeal: 1. The requisite apprehension of ostensible bias does not arise. There is nothing about the prior decisions or the prior associations mentioned which suggest that the questions arising for decision will be dealt with other than on their legal and factual merits. 2. There is no merit in the complaints that the appeal judge erred in fact or law or failed to properly apply the relevant legal principles. The contentions made about the weight given, or not given, to various matters are without merit. 3. The applicant has not identified any reason to doubt or reconsider the decisions made by the appeal judge. He has not identified any contested issue of principle or issue of general importance, nor has it been demonstrated that allowing these decisions to stand would work any substantial injustice to the applicant. -- 1 of 10 -- Anderson v National Australia Bank [2007] VSCA 172; Budd v Kambah Tea Tree Plantations Pty Ltd [2001] NSWCA 180; Charisteas v Charisteas (2021) 273 CLR 289; Commonwealth Bank of Australia v Barker (2014) 253 CLR 169; Commonwealth v Saadat (2019) 134 SASR 184; Contract Mining Services Pty Ltd v Adelaide Brighton Cement Ltd [2020] SASC 69; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Hanna v Flinders University [2025] SASC 81; Hanna v Flinders University [2025] SASCA 81; Harradine v The State of South Australia [2024] SASCA 123; Harradine v The State of South Australia [2025] HCADisp 16; House v The King (1936) 55 CLR 499; IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd (1999) 78 SASR 151; Karbowiak v Mitolo [2024] SASCA 31; Lauro v Minter Ellison [2020] SASC 137; Lauro v Minter Ellison [2021] SASCA 97; Lauro v Minter Ellison (No 2) [2022] SASCA 68; Lauro v Minter Ellison (A Firm) [2024] SASC 48; Lauro v Minter Ellison (A Firm) [2025] SASC 77; Lauro v Minter Ellison (A Firm) (No 2) [2025] SASC 90; Lauro v Minter Ellison (A Firm) (No 3) [2025] SASC 135; McDonald v Attorney-General for South Australia [2022] SASCA 43; McVicars v South Australian Housing Trust (No 3) [2025] SASCA 75; Peters v Commissioner of Police [2025] SASCA 95; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; Re JRL; Ex parte CJL (1986) 161 CLR 342; Rowe & Anor v National Australia Bank [2025] SASCA 86, considered. -- 2 of 10 -- LAURO v MINTER ELLISON (A FIRM) [2025] SASCA 116 Court of Appeal – Civil: Livesey P and Bleby JA THE COURT: Introduction 1 Some time ago, the law firm, Minter Ellison, represented Mr Natale Lauro in various litigation. Minter Ellison claims to be owed legal fees. Mr Lauro has sought a taxation of those fees on a solicitor and client basis. That taxation has not progressed very far. Mr Lauro has made a number of complaints. These include objections to various judicial officers sitting on the grounds of ostensible bias.1 2 Mr Lauro’s litigation guardian is his son, Mr E Lauro. Without objection from Minter Ellison, he has usually represented his father.2 3 This is an application for leave to appeal concerning, amongst other matters, an objection to a judge sitting on the taxation on the grounds of ostensible bias, as well as an objection to a single judge of the General Division sitting on an appeal against that and other decisions of the taxing judge on the grounds of ostensible bias. Mr Lauro had made three applications for the recusal or disqualification of the appeal judge.3 4 The appeal judge refused Mr Lauro leave to appeal, and he dismissed those aspects of the appeal which had been the subject of a grant of leave to appeal by the taxing judge. Mr Lauro’s proposed appeal appears to be concerned principally with the orders made at the time of the last of the appeal judge’s decisions. 5 For the following reasons, leave to appeal should be refused. Preliminary applications 6 Earlier this week, Mr E Lauro complained about being confined to a 3-page limit for his written submissions. He sought more time to make further written submissions by way of reply. The written submissions of Minter Ellison introduced no new, substantive issues requiring reply. Having considered the proposed appeal grounds, the submissions and the materials relied on, which 1 See, for example, the objection to Associate Justice Dart sitting, Lauro v Minter Ellison (A Firm) [2024] SASC 48 (McDonald J). 2 Whether that is appropriate need not be considered in circumstances where there is no objection, see McVicars v South Australian Housing Trust (No 3) [2025] SASCA 75, [6]-[9] (Livesey ACJ), and the case there cited. The potential issues include the absence of evidence as to whether Mr Lauro is capable of attending court, his absence from the court room, and his views about the matters agitated. These issues may be left to one side, along with whether Mr E Lauro should be permitted to continue to act as litigation guardian and whether it is appropriate that he present submissions rather than simply instruct, or assist as a “McKenzie friend”. 3 Lauro v Minter Ellison (A Firm) [2025] SASC 77; Lauro v Minter Ellison (A Firm) (No 2) [2025] SASC 90; Lauro v Minter Ellison (A Firm) (No 3) [2025] SASC 135, in each case decided by B Doyle J (the appeal judge). -- 3 of 10 -- [2025] SASCA 116 The Court 2 included 5 additional pages of attachments, we are satisfied that no further time should be given. 7 Yesterday, Mr E Lauro then applied for an adjournment, advising the Court by email: Yesterday, Mr Eric Lauro required urgent medical attention and was admitted in the Emergency Department of the Royal Adelaide Hospital, where he currently remains. In the circumstances, it is respectfully asked that tomorrow’s hearing regarding objections to the [H]onourable President Livesey and Justice Bleby sitting in this appeal and the question of leave to appeal, be vacated and adjourned to a new date, within 7 days of Mr Eric Lauro’s discharge and end of his convalescence period. 8 Leaving aside the obvious points that no medical certificate was produced concerning Mr E Lauro, and that there was no detail given about whether there was a diagnosis or prognosis, or the likely period of convalescence, the parties have had a reasonable opportunity to make their written submissions. 9 In the case of Mr Lauro, those written submissions supplemented very detailed grounds of appeal as well as grounds setting out the case for leave to appeal. 10 This Court may, in its discretion, deal with applications for leave to appeal “on the papers”.4 The taxation in this matter has been delayed for a considerable period. It is desirable that it proceed. In the circumstances outlined, particularly given the material before the Court, it is appropriate to determine leave to appeal on the papers without further delay. 11 This is not the first time Mr Lauro has been before the Court of Appeal. Some time ago, there was litigation over a default judgment entered against Mr Lauro in the District Court,5 as well as over a default judgment entered in the Magistrates Court.6 Bleby JA decided one of those cases in 2020.7 12 When this matter was set down, it was disclosed to the parties that, when in practice, Livesey P had been retained as a barrister by Minter Ellison in connection with various matters on behalf of various clients of Minter Ellison. In addition, it was disclosed to the parties that his wife had been, but was no longer, employed 4 Hanna v Flinders University [2025] SASCA 81, [4]-[6] (Livesey ACJ and Stanley JA). 5 Lauro v Minter Ellison [2020] SASC 137 (Bleby J), refusing the application for an extension of time to appeal against an order of a District Court judge entering default judgment, and dismissing the appeal against an order of another District Court judge refusing to set aside the default judgment; Lauro v Minter Ellison [2021] SASCA 150 (Lovell JA, Parker and David AJJA) concerning the refusal of leave to appeal; Lauro v Minter Ellison (No 2) [2022] SASCA 68 (Lovell JA, Parker and David AJJA) concerning the respondent’s costs application. 6 Lauro v Minter Ellison [2021] SASCA 97 (Kourakis CJ), concerning the refusal to grant leave to appeal to the Court of Appeal against the decision of a single judge on appeal from a decision of a magistrate dismissing an application to have default judgment set aside. 7 Lauro v Minter Ellison [2020] SASC 137 (Bleby J). -- 4 of 10 -- [2025] SASCA 116 The Court 3 as a solicitor by Minter Ellison. It was disclosed to the parties that there had been no involvement by Livesey P or his wife in any Lauro litigation. 13 Mr Lauro objected to Livesey P and Bleby JA hearing the present application on the grounds of ostensible bias. 14 The objections appeared to be a combination of pre-judgment (in the case of Bleby JA) and association (in the case of Livesey P and Bleby JA). A large number of the matters raised by Mr E Lauro were irrelevant, especially where they concerned the decisions made on disqualification by other judges in other contexts, or old complaints. The same may be said about decisions made on disqualification by the present coram in unrelated litigation.8 15 An apprehension of ostensible bias will arise where the “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question[s] the judge is required to decide”.9 It is necessary for an applicant seeking disqualification to:10 1. identify the factor that might lead the judge to resolve the questions arising for decision other than on their legal and factual merits; 2. articulate the logical connection between that factor and the apprehended deviation from deciding those questions on their merits; and 3. assess the reasonableness of that apprehension from the perspective of a fair-minded lay observer. 16 It is normally the duty of any judge hearing cases allocated to that judge to hear them, and to not too readily accede to applications to recuse or disqualify on the grounds of apprehended bias.11 17 An applicant must do more than point to earlier adverse decisions not involving the same issues which do not involve any pre-judgment of the issues arising in connection with the matters presently before the Court. It cannot be suggested that the issues decided by Bleby JA in 2020 represent the pre-judgment of any questions likely to arise on this application, still less that they reveal any adverse credit finding or ill-will toward Mr Lauro or, for that matter, his son. 8 For example, in the case of Harradine v The State of South Australia [2024] SASCA 123 (Livesey P and Bleby JA), special leave refused on 6 March 2025, Harradine v The State of South Australia [2025] HCADisp 16. 9 QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148 (QYFM v Minister), [37] (Kiefel CJ and Gageler J), citing Charisteas v Charisteas (2021) 273 CLR 289, [11] (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ). 10 QYFM v Minister (2023) 279 CLR 148, [38] (Kiefel CJ and Gageler J), citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ). 11 Re JRL; Ex parte CJL (1986) 161 CLR 342, 352 (Mason J), cited with approval in QYFM v Minister, [277]-[278] (Jagot J). -- 5 of 10 -- [2025] SASCA 116 The Court 4 18 As for the retainers involving Livesey P and Bleby JA when they practised as barristers more than five years ago, the fair-minded lay observer may be taken to know that barristers will advise and represent a number of clients when acting on instructions from a range of solicitors in the course of legal practice. An example is the retainer of Bleby JA by Minter Ellison in Commonwealth Bank v Barker when practising as a barrister, more than ten years ago.12 The fact of these old retainers does not provide any reason to think that, in the event of appointment as a judge, that kind of former association with a solicitors’ firm some years earlier will, without more, give rise to the requisite apprehension when the firm is a litigant in a costs taxation.13 19 Likewise, it is difficult to see how the familial association of Livesey P can support a complaint of ostensible bias where his wife was formerly employed by the law firm and neither had, nor has, any involvement or financial interest or reputational interest at stake in a costs taxation involving her former employer and its former client. 20 The applications to disqualify Livesey P and Bleby JA have been considered individually, as well as collectively. There is nothing about the prior decisions or the prior associations mentioned which suggest that the questions arising for decision on this application will be dealt with other than on their legal and factual merits. 21 The requisite apprehension does not arise. These applications should be dismissed. The decisions made by the appeal judge 22 Apart from the applications to disqualify the appeal judge from sitting, the present application for leave to appeal concerns his refusal to grant leave to appeal against a range of decisions made by an Auxiliary Associate Justice in connection with her management of the taxation hearing. When determining the question of leave to appeal, the appeal judge explained:14 In determining whether to grant leave, the Court acts in the interests of justice, and by reference to three inter-related questions, namely: whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal; whether the decision raises an issue of principle or general importance; and whether allowing the decision to stand would work a substantial injustice to the applicant.15 When considering whether the decision in question is attended with sufficient doubt to warrant reconsideration on appeal, it has to be 12 Commonwealth Bank v Barker (2014) 253 CLR 169. 13 Contract Mining Services Pty Ltd v Adelaide Brighton Cement Ltd [2020] SASC 69, [66] (Livesey J), and the cases there cited. 14 Lauro v Minter Ellison (A Firm) (No 3) [2025] SASC 135, [61]-[62] (B Doyle J). His Honour also relied on Commonwealth v Saadat (2019) 134 SASR 184, [49]-[52] (Kourakis CJ, with whom Peek and Nicholson JJ agreed). 15 McDonald v Attorney-General for South Australia [2022] SASCA 43, [21] (Livesey P and Bleby JA). -- 6 of 10 -- [2025] SASCA 116 The Court 5 borne in mind that discretionary decisions will only be disturbed on appeal where a relevant error of principle or material misapprehension of fact is shown.16 Where the discretionary decision concerns a matter of practice and procedure, the appeal court may show even greater deference to the decision of the primary judge and will exercise appropriate caution before granting leave and intervening on appeal.17 (Citations in original.) 23 The proposed appeal also concerns the dismissal of the appeal against (amongst other matters) the decision by the taxing judge to dismiss Mr Lauro’s application that she be recused or disqualified from sitting on the taxation on the grounds of her suggested ostensible bias. 24 The appeal judge gave very careful consideration to each of the matters agitated before him, including that when Mr E Lauro suggested to the Auxiliary Associate Justice the possibility of another appeal, and she asked him whether that was a “threat”, that showed that she should decline to sit on the grounds of ostensible bias. The appeal judge rejected the complaints made, explaining:18 In a busy court, robust exchanges may occur. There may be an element of tension between bench and bar. Judges should strive to avoid truculence and discourtesy but occasional displays of sarcasm, anger or frustration do not necessarily give rise to an appearance of bias. Moreover, there is no prohibition against a judge conveying their initial (negative) reaction to something that is said, or expressing dissatisfaction with the performance of an advocate or party.19 A fair minded lay observer is neither complacent nor unduly suspicious.20 Indeed, a fair minded observer may be taken to understand that, on occasion, both judge and counsel will express themselves in a manner that is to be regretted.21 It is only where the conduct demonstrates such hostility or rigidity that a fair minded observer might doubt the judge’s preparedness to properly consider competing arguments that the conduct gives rise to apprehended bias.22 (Citations in original.) 25 It is not obvious that the appeal judge has made any error of fact or law, or overlooked any relevant and material consideration. The effect of his decision is that the solicitor and client taxation will proceed before the Auxiliary Associate Justice, who is yet to rule on it. 16 House v The King (1936) 55 CLR 499. 17 Karbowiak v Mitolo [2024] SASCA 31, [6] (Livesey P, Doyle and Bleby JJA). 18 Lauro v Minter Ellison (A Firm) (No 3) [2025] SASC 135, [93]-[94] (B Doyle J). 19 See Anderson v National Australia Bank [2007] VSCA 172, [92]-[95] (Nettle JA), referring, inter alia, to Budd v Kambah Tea Tree Plantations Pty Ltd [2001] NSWCA 180, [102]-[103] (Heydon JA). 20 QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148, [47] (Kiefel CJ and Gageler J). 21 IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd (1999) 78 SASR 151, [194] (Doyle CJ, Prior and Mullighan JJ agreeing). 22 See, eg, the discussion in IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd (1999) 78 SASR 151, [173]-[174] (Doyle CJ, Prior and Mullighan JJ agreeing). -- 7 of 10 -- [2025] SASCA 116 The Court 6 Mr Lauro’s proposed appeal to the Court of Appeal 26 Mr Lauro’s very extensive grounds of appeal criticise the approach taken to the question of disqualification of the taxing judge as well as the question of disqualification of the appeal judge, and other matters, including his costs order: 1. The learned Judge erred in finding that a fair-minded lay observer would not reasonably apprehend that Auxiliary Associate Justice Flourentzou might not bring an impartial and unprejudiced mind to the determination of the issues in case no. CIV-22-005455. 2. Error of law and apprehended bias—Auxiliary Associate Justice Flourentzou (“her Honour”): 2.1 The learned Judge erred by dismissing the appeal from her Honour’s refusal to recuse herself and by failing to address her Honour’s conduct, errors in fact and/or law or in the exercise of her discretion, which resulted in procedural unfairness that prejudiced the Appellant and occasioned a miscarriage of justice, including but not limited to her Honour: 2.1.1 failing to consider relevant matters 2.1.2 considering and giving weight to irrelevant matters; 2.1.3 conflating the threshold issue of the Respondent’s standing with and before any discretionary consideration of time extension, notwithstanding the Respondent’s disclosure of corporate restructure and changes in its partnership composition; 2.1.4 prejudging matters that were not argued including the Respondent’s standing; 2.1.5 failing to take action with respect to Respondent’s obligation to serve a Notice of Acting, as raised by the Appellant’s Litigation Guardian at the hearing on 4 March 2025; 2.1.6 failing to adequately address or explain the rationale for procedural decisions that gave rise to reasonable apprehension of bias and procedural unfairness, including procedural orders made in the absence of the Appellant or his Litigation Guardian, and thereafter failing to afford the Appellant a genuine opportunity to vary the timetabling and programming of her Honour’s procedural orders. 2.2 The learned Judge failed to give adequate weight to the legal principles in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and to the Australasian Guide to Judicial Conduct, including the requirement that justice must not only be done but be seen to be done. 2.3 The learned Judge failed to find, but ought to have found, that the above issues, whether individually or cumulatively, were sufficient for a fair-minded lay observer reasonably to apprehend that her Honour might not bring an impartial and unprejudiced mind to the resolution of relevant issues. 3. Error of law and apprehended bias re: the learned Judge: -- 8 of 10 -- [2025] SASCA 116 The Court 7 3.1 The learned Judge erred in finding that a fair-minded lay observer would not reasonably apprehend that his Honour might not bring an impartial and unprejudiced mind to the determination of the appeal against Auxiliary Associate Justice Flourentzou. 3.2 The learned Judge erred in refusing to recuse himself, where circumstances, individually or cumulatively, gave rise to a reasonable apprehension of bias, thereby prejudicing the Appellant and occasioning a miscarriage of justice, by reason of the learned Judge’s: 3.2.1 Case management of the appeal. 3.2.2 Professional and personal associations with, or involving, the Respondent. 3.2.3 Professional association with another law firm that had previously acted against the Appellant, including associations involving the learned Judge’s father and brother. 3.2.4 Familial relationships with other members of the judiciary, all of whom (including the learned Judge) are the subject of disciplinary complaints. 3.3 The learned Judge failed to give adequate weight to the legal principles in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and the Australasian Guide to Judicial Conduct, including the requirement that justice must not only be done but be seen to be done. 3.4 The learned Judge failed to find, but ought to have found, that the above circumstances, whether individually or cumulatively, were sufficient for a fair-minded lay observer reasonably to apprehend that his Honour might not bring an impartial and unprejudiced mind to the resolution of the appeal. 3.5 The learned Judge erred in refusing to grant an extension of time and leave to appeal against the procedural orders made by Auxiliary Associate Justice Flourentzou on 27 June 2024 and 10 July 2024. 3.6 The learned Judge erred in fact and/or law or in the exercise of his discretion by treating the appeal as confined to questions of apprehended bias, and failing adequately (or at all) to address the conduct including errors in fact and/or law or in the exercise of her discretion and procedural unfairness of Auxiliary Associate Justice Flourentzou, which prejudiced the Appellant and occasioned a miscarriage of justice 4. Costs order infected by error: 4.1 The learned Judge erred in ordering the Appellant to pay 90% of the Respondent’s costs of and incidental to the appeal on a standard basis, and ought instead to have ordered that each party bear their own costs having regard to, among other things: 4.1.1 the public interest dimension in the determination of bias; 4.1.2 that the Respondent ought not to have taken an active role or not triggered factual contests (including those relating to the learned -- 9 of 10 -- [2025] SASCA 116 The Court 8 Judge’s fitness to preside over the appeal), but should have abided the event; 4.1.3 the applicable cost principles under the UCR, and the fact that the Respondent occasioned unnecessary, avoidable, and/or unreasonable costs by relying on irrelevant facts and authority and engaging in conduct involving procedural irregularities. 27 As has been observed by this Court, where an applicant wishes to pursue a second opportunity to appeal, the applicant must be astute to clearly identify real doubt about the decision under appeal.23 28 It is necessary to give particular deference to the decisions made insofar as they comprised the review of rulings made on matters of practice and procedure by the Auxiliary Associate Justice as taxing judge or, for that matter, by the appeal judge. 29 We have carefully reviewed the reasons of the appeal judge in light of the grounds of appeal. The reasons are clear and detailed to the point of being painstaking. There is no merit in the complaints that the appeal judge erred in fact or law or failed to properly apply the relevant legal principles. The contentions made about the weight given, or not given, to various matters are without merit. 30 Mr Lauro has not identified any reason to doubt or reconsider the decisions made by the appeal judge. He has not identified any contested issue of principle or issue of general importance, nor has it been demonstrated that allowing these decisions to stand would work any substantial injustice to Mr Lauro. 31 As the appeal judge did, we have considered the complaints individually as well as collectively. The proposed appeal is without merit. We agree with the approach and decisions of the appeal judge. The hearings before the taxation judge and the appeal judge were procedurally fair. 32 In our view, insofar as leave to pursue a second appeal is concerned, it should be refused. Insofar as leave to appeal any ostensible bias ruling made by the appeal judge is concerned, it should be refused.24 The same should be said about his costs ruling. Conclusions 33 The applications for more time, for an adjournment and for disqualification should be dismissed. 34 Leave to appeal should be refused. 23 Peters v Commissioner of Police [2025] SASCA 95, [21] (Livesey P and Stanley JA); Rowe & Anor v National Australia Bank [2025] SASCA 86, [32]-[33] (Livesey P and Stanley JA), and the cases there cited. 24 As did the appeal judge, we leave to one side whether decisions on disqualification alone are capable of being appealed, Hanna v Flinders University [2025] SASC 81, [77]-[81] (B Doyle J). -- 10 of 10 --