DR AMELIE HANNA In Person v FLINDERS UNIVERSITY [2025] SASC 81

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE JACKSON) CIV- 21-012199 Appellant: DR AMELIE HANNA In Person Respondent: FLINDERS UNIVERSITY Counsel: MR N SWAN - Solicitor: HWL EBSWORTH LAWYERS Hearing Date/s: 12/05/2025, 27/05/2025 File No/s: CIV-25-001631 B SUPREME COURT OF SOUTH AUSTRALIA (Magistrates 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. HANNA v FLINDERS UNIVERSITY [2025] SASC 81 Judgment of the Honourable Justice B Doyle 29 May 2025 MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FOR BIAS IN JUDICIAL PROCEEDINGS COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS The appellant brought a claim in the Magistrates Court seeking relief of various kinds against the respondent. In March 2024, the appellant requested that the magistrate with the conduct of the matter recuse herself. In reasons published on 22 April 2024, the magistrate declined to accede to the appellant’s request. The appellant appealed against that decision to this Court. The appeal was dismissed. In August 2024, the appellant made a further request that the magistrate recuse herself. For reasons dated 11 December 2024, the magistrate again declined to recuse herself. The appellant now appeals against that decision. The appellant relied on numerous grounds of appeal which can be grouped into two categories: 1. complaints about the magistrate’s conduct in the course of hearings between late 2023 and mid-2024; 2. complaints concerning the second recusal application including the magistrate’s characterisation of her past association with the law firm representing the respondent in the proceeding. -- 1 of 19 -- Held, refusing an extension of time to institute the appeal and refusing leave to appeal: 1. it is not necessary to resolve whether it remains open to the appellant to raise complaints arising from the earlier hearings because it is not reasonably arguable that they disclose any matter which a fair-minded lay observer might reasonably apprehend might lead the magistrate to decide any procedural or substantive issue other than by reference to its merits; 2. neither the magistrate’s characterisation of her past association with the respondent’s solicitors nor her conduct of the second recusal application gives rise to a reasonably arguable basis upon which actual or apprehended bias might require recusal. Magistrates Court Act 1991 (SA) ss 8(1), 19(2), referred to. Hanna v Flinders University [2025] SASC 6, applied. Hanna v Flinders University [2024] SASCA 127; Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; Stone v Moore (2015) 122 SASR 54, discussed. -- 2 of 19 -- HANNA v FLINDERS UNIVERSITY [2025] SASC 81 Magistrates Appeal—Civil 1 B DOYLE J: The appellant, Dr Hanna, is the applicant in a proceeding against Flinders University in the Magistrates Court. In March 2024, Dr Hanna requested that the magistrate with the conduct of the proceeding recuse herself. On 22 April 2024, the magistrate gave reasons for declining to do so. Dr Hanna appealed against that decision to this Court. The appeal was heard in August 2024 and ultimately dismissed on 29 January 2025.1 Before the dismissal of the appeal, but after it had been argued, Dr Hanna made a further request that the magistrate recuse herself. For reasons dated 11 December 2024, the magistrate again declined to recuse herself. By this appeal, Dr Hanna seeks to challenge that decision. 2 For the reasons that follow, if and to the extent that the appeal is competent, it requires an extension of time and leave. I would not grant leave to appeal, for reasons including that it is not reasonably arguable that the appeal would succeed. It would be futile to grant the extension. Background 3 Much of the relevant background is set out in the reasons of Hughes J for dismissing the earlier appeal to this Court.2 By the proceeding she commenced in late 2021, Dr Hanna seeks a monetary award and other relief against the University. The dispute concerns Dr Hanna’s entitlement to a scholarship whilst completing a doctorate of philosophy. 4 There have been various interlocutory applications made in the Magistrates Court. A question about discovery was the subject of an appeal to this Court,3 and a subsequent application for leave to appeal to the Court of Appeal.4 5 The first recusal application, made in March 2024, was advanced on the basis that Dr Hanna was in the process of appealing an earlier decision of the magistrate. It was also contended that in various ways the magistrate had mishandled or erred in dealing with discovery applications made by Dr Hanna. 6 In the course of declining the application for recusal, the magistrate observed that the fact that Dr Hanna disagreed with decisions did not give rise to a basis for recusal and that, in the ordinary course, that would remain the case even if an appeal court held that she had erred in respect of an interlocutory decision. 7 In relation to alleged procedural deficiencies, including a contention that Dr Hanna had not been given a sufficient opportunity to make submissions, the 1 Hanna v Flinders University [2025] SASC 6. 2 Hanna v Flinders University [2025] SASC 6 at [3]-[26]. 3 CIV-24-002046 (Kourakis CJ). 4 Hanna v Flinders University [2024] SASCA 127 (Livesey P and Bleby JA). -- 3 of 19 -- [2025] SASC 81 B Doyle J 2 magistrate made reference to the lengthy written submissions and the time afforded by her to Dr Hanna for oral submissions. The magistrate did not accept that she had engaged in conduct that might found a reasonable apprehension of bias. 8 The magistrate also rejected a contention that she should recuse herself because the claim was too complex or technical for her to understand. 9 On appeal to this Court, the grounds upon which complaint was made expanded upon the matters raised before the magistrate. Among other things they extended to complaints about the magistrate’s response to Dr Hanna’s request to transfer the proceedings, complaints about the magistrate’s response to the appellant’s request for ‘specific performance’, complaints that the magistrate did not treat her application for specific performance as urgent and complaints that the magistrate was consistently ruling in favour of the respondent. This was said to demonstrate a pattern of favouritism suggesting a protective stance towards the respondent.5 10 A further contention advanced by Dr Hanna before this Court was the magistrate’s asserted connection with the law firm acting for the respondent in the proceeding. This was a matter about which Dr Hanna only became aware subsequent to the bringing of the appeal, and after the first recusal application was refused by the magistrate.6 In the intervening period, Dr Hanna had undertaken some research on the internet and learned that the magistrate had worked as a solicitor at the firm of solicitors representing the respondent, HWL Ebsworth. She sought to tender material from ‘LinkedIn’ which indicated that the magistrate worked at that firm between January 2015 and September 2016. 11 Hughes J entertained an application to re-open the appeal to consider this ground for recusal. It was not opposed by the respondent, who indicated that the Court could proceed on the basis that it was an accepted fact that the magistrate was associated with HWL Ebsworth for the period indicated. Hughes J granted Dr Hanna the opportunity to make further submissions based on the accepted fact, but declined to admit the affidavit into evidence.7 12 Dr Hanna made submissions relying not only on the magistrate’s connection with the firm in question but on her failure to have disclosed it.8 Dr Hanna went so far as to suggest that the magistrate may be continuing to maintain a relationship with the firm.9 5 Hanna v Flinders University [2025] SASC 6 at [23] – [24] (Hughes J). 6 Hanna v Flinders University [2025] SASC 6 at [25] (Hughes J). 7 Hanna v Flinders University [2025] SASC 6 at [64]-[66] (Hughes J). 8 Hanna v Flinders University [2025] SASC 6 at [67] (Hughes J). 9 Hanna v Flinders University [2025] SASC 6 at [69] (Hughes J). -- 4 of 19 -- [2025] SASC 81 B Doyle J 3 13 Hughes J observed:10 The fact that a judicial officer was formerly employed by a firm of solicitors, or was a barrister in Chambers, creates the possibility of a relationship between individuals that may give rise to a reasonable apprehension of bias. However, I am unaware of any authority that supports the proposition that such a relationship automatically creates such an apprehension. In fact, the authorities support the proposition that a mere association through a former employment association is unlikely, without more, to give rise to a reasonable apprehension of bias. 14 After referring further to the authorities, her Honour continued:11 Setting aside the allegation as to ongoing communication between the Magistrate and the firm in these proceedings, there is no logical connection between the mere fact of the Magistrate’s former employment with a firm of solicitors, and the fact that the solicitors act for a party who is engaged to represent a party in proceedings before the Magistrate. The proceedings commenced after the Magistrate had left the employment of the firm. Appointment to judicial office is premised on an undertaking to decide cases on their merits. The Magistrate was not obliged to disclose it to the parties. 15 Hughes J then explained why the appellant’s additional argument that there was reason to apprehend that the magistrate had engaged in out of court discussions with persons associated with HWL Ebsworth was not substantiated. Her Honour then concluded that:12 … the appellant has not established that apprehended bias should be inferred from the Magistrate’s failure to advise the appellant that she was a former employee of the solicitors for the respondent, or that the Magistrate’s former association with the firm gave rise to an automatic apprehension of bias. 16 Earlier in Hughes J’s reasons, she traversed the authorities concerning whether a bare refusal to recuse oneself gives rise to a judgment or order against which an appeal lies to this Court.13 Her conclusion was that the appellant had prematurely appealed the recusal decision, rather than awaiting and appealing against a particular order or decision that was said to be contaminated by apprehended bias.14 17 Notwithstanding her view that the appeal was therefore incompetent, Hughes J considered the grounds of recusal on their merits. In the course of doing so, she examined complaints about the magistrate’s approach to discovery issues (both procedurally and substantively), complaints about the magistrate’s conduct during a hearing on 5 April 2024 and complaints to the effect that the magistrate was generally dismissive of Dr Hanna.15 10 Hanna v Flinders University [2025] SASC 6 at [73] (Hughes J). 11 Hanna v Flinders University [2025] SASC 6 at [76] (Hughes J). 12 Hanna v Flinders University [2025] SASC 6 at [80] (Hughes J). 13 Hanna v Flinders University [2025] SASC 6 at [27]-[44] (Hughes J). 14 Hanna v Flinders University [2025] SASC 6 at [43] (Hughes J). 15 Hanna v Flinders University [2025] SASC 6 at [47]-[63] (Hughes J). -- 5 of 19 -- [2025] SASC 81 B Doyle J 4 18 Concluding that Dr Hanna did not have reasonably arguable prospects of succeeding on those grounds, Hughes J said that if the appeal was competent, she would not have granted leave to appeal.16 19 Before the decision of Hughes J was delivered, Dr Hanna renewed her application to the magistrate that the magistrate recuse herself. The magistrate distilled the submissions of Dr Hanna into four categories: (1) bias due to association, (2) conduct outside the courtroom, (3) conduct inside the courtroom, and (4) pre-judgment. 20 In respect of association, the magistrate accepted that as a matter of prudence and professional practice judges should disclose interests or associations if there is a serious possibility that they are potentially disqualifying. Having referred to relevant authority, the magistrate said: Here, the applicant has raised two aspects, namely a failure to disclose the association and the nature of the association itself. The Court is to view the potential for apprehension of bias through the eyes of the hypothetical reasonable and fair-minded and informed observer. The reasonable observer is presumed to approach the matter on the basis that ordinarily a judge would act to ensure both the appearance and the substance of fairness and impartiality. But the reasonable observer is not presumed to reject the possibility of pre-judgment or bias, nor is the reasonable observer presumed to have any personal knowledge of the character or ability of the members of the relevant Court. In this case, the association raised by the applicant is historical. It may be that I should have disclosed my previous employment at HWL Ebsworth, although the brevity of my employment there and the time since that employment meant, quite simply, that it did not even cross my mind. Even now it has been raised, I am not convinced that it warrants any disclosure. As the applicant has pointed out, this is publicly available information. The respondent submitted that the suggestion of a connection between my prior association with the respondent’s law firm and the current client of the firm is illogical. The applicant has not articulated any link based on the association alone which might give rise to a reasonable apprehension of bias. In all of the circumstances, I find that this was not a case where the parties or the public might entertain a reasonable apprehension that I, sitting as the interlocutory or trial magistrate, might not bring an impartial, unprejudiced mind to the resolution of the matters in dispute before me based on the fact of the association and the disclosure issue alone. 21 The magistrate then addressed a contention that there were or might be communications outside the courtroom between herself and the firm acting for the respondent. She rejected this contention as lacking in an evidentiary foundation. 16 Hanna v Flinders University [2025] SASC 6 at [83] (Hughes J). -- 6 of 19 -- [2025] SASC 81 B Doyle J 5 22 The magistrate turned to consider a complaint regarding her conduct in the courtroom. She stated as follows: The third ground is conduct inside the courtroom. The applicant has identified several instances in this category, namely: 1. The applicant was not given a proper opportunity to articulate her arguments during hearings; 2. I have been unwilling to hear the applicant’s submissions; 3. I have acted to protect the interests of the respondent; and 4. I am taking instructions/direction from the respondent. The respondent submitted that the comments made by me in Court, as identified by the applicant, demonstrate nothing more than an understanding of the litigation and an expectation of what the respondent might say. The respondent submitted that the applicant has always been heard on how the matter will proceed, especially in regard to the outstanding applications. The submission that the applicant is not given a proper opportunity to articulate her agreement during hearings is largely a repetition of earlier complaints, which are the subject of review in the Supreme Court. During a hearing, it is appropriate for the judicial officer to ascertain whether the orders proposed by one party are in accordance with what the party is seeking and whether they are by consent, if that is what is intended. The examples given by the applicant are those kinds of questions and statements. The applicant has been afforded substantial amounts of time to articulate her positions at the appropriate times, but the resources of the Court and the parties are finite. The opportunities for oral submissions and discussion must be constrained by the practicalities of both the time slots available, and the usefulness and proportionality of what is being articulated. I do not accept that the applicant’s submissions are an accurate reflection of what occurred during some of the Court hearings. I acknowledge that at times I have stopped the applicant from repeating submissions already made or embarking on argumentative or unhelpful pathways of discussion or argument. That is my role as a judicial officer, having regard to the parties and especially so in light Dr Hanna’s self-represented status. I will not address the submissions in relation to the earlier discovery application as this aspect of the matter has been dealt with by the Supreme Court and the Court of Appeal. For the avoidance of any doubt, given some of the comments made today, I confirm that both the application to amend the Claim and the application to transfer the proceedings to the Supreme Court are still on foot. They have not been determined and will be dealt with once the recusal applications have been finalised. 23 Finally, the magistrate dealt with the contention of pre-judgment arising from having expressed preliminary views about matters such as the Court’s power with respect to the transfer of proceedings, and from the preparation and then delivery of ex tempore decisions. She rejected a contention of pre-judgment arising from -- 7 of 19 -- [2025] SASC 81 B Doyle J 6 the expression of preliminary views in the course of directions hearings. The magistrate said, in this context: It is appropriate that, as a reasonably experienced judicial officer, I understand some of my basic powers. For example, I know that I can transfer some Magistrate Court actions to the District Court, as I do it frequently. My general understanding was that my power was limited in relation to a transfer to the Supreme Court, but I have made it very clear that I will hear argument in that regard. I am being as fair as I can to the applicant as a self- represented litigant. Again, I view it as my role to assist and give notice of any issues in that regard. 24 The magistrate refused the application that she recuse herself. On 11 December 2024, following the delivery by the magistrate of her ex tempore remarks, orders were made dismissing Dr Hanna’s interlocutory application for recusal, awarding costs of the application in the respondent’s favour, and listing the matter for directions. 25 In the unusual circumstances of this case, some matters considered by the magistrate in this second recusal decision were also canvassed by Hughes J in disposing of an appeal against the first recusal decision. The result is that some of the matters relied upon before me in the appeal against the second recusal decision have been addressed in the course of Hughes J’s dismissal of the appeal against the first recusal decision. Grounds of appeal and issues raised by the appeal 26 In her notice of appeal, Dr Hanna appeals against the orders made on 11 December 2024 and relies upon the following grounds. A. Misconduct by Undisclosed Partnership with HWL Ebsworth (Respondent's Law Firm) B. Prejudicial Remarks in Direction Hearings C. Communications Outside the Courtroom D. Dismissing, Ignoring, and Unbelieving the Appellant’s Words E. Meeting the Two-Step Test of Bias in Document Omissions, Cost Orders, and Protecting the Respondent F. Unpreparedness for Listening nor Understanding G. Premade Recusal Decisions of Refusing Recusal H. Conduct and Unfairness in the Last Hearing on 11 December 2024 I. Deception, Procedural Unfairness, and Misconduct in the Decision on 11 December 2024 27 The notice of appeal goes on to make lengthy submissions about each of these matters as well as to pose a number of ‘questions of law’ which in substance -- 8 of 19 -- [2025] SASC 81 B Doyle J 7 comprise the appellant’s ultimate submissions on the question of recusal framed as rhetorical questions. 28 Apart from the merit or otherwise of the matters raised by Dr Hanna’s grounds and in oral submissions before me, a number of procedural issues arise in connection with Dr Hanna’s appeal. (1) First, because the challenged decision was made on 11 December 2024, and the notice of appeal was accepted for filing on 12 February 2025, an extension of time is required. (2) Secondly, for the reasons canvassed by Hughes J in her decision, a question arises as to the competence of the appeal. (3) Thirdly, if the appeal is competent, leave to appeal is required. (4) Fourthly, relevant both to leave and, if it were to be granted, the ultimate disposition of the appeal, there is a question about the extent to which the grounds of appeal invite reconsideration of matters that either were raised before Hughes J or that could have been, such that it is an abuse of process to raise them by way of a second appeal. 29 In order to consider the extent to which the grounds involved a re-agitation of matters that were raised before Hughes J, it is appropriate to summarise the contentions and the way in which they were articulated and, in some cases expanded upon, in the hearing before me. 30 It is convenient to group Dr Hanna’s contentions into two categories, the first concerning complaints about the magistrate’s conduct in the course of earlier hearings, and the second concerning the second recusal application. The main focus of that application was the magistrate’s past association with HWL Ebsworth; however, Dr Hanna also raises concerns about the magistrate’s conduct in relation to that application and her reasons for dismissing it. Conduct at earlier hearings 31 Dr Hanna complained about the magistrate’s conduct at hearings held on 20 December 2023, 5 April 2024, 22 April 2024 and 12 June 2024. 32 Each of these hearings predated the hearing of the appeal before Hughes J. To a significant extent, Dr Hanna’s contentions about the magistrate’s conduct at earlier hearings formed part of her argument before Hughes J. Dr Hanna contended, however, that her complaints on this appeal extended to conduct in hearings that were not specifically canvassed in the reasons of Hughes J. 33 To the extent that Dr Hanna contends that she did raise matters before Hughes J, but that her Honour failed to deal with each of them in her reasons, that is not a matter that is properly raised before me. Dr Hanna said that she was taking the opportunity before me to ‘object to [Hughes J’s] decision altogether’. It is not -- 9 of 19 -- [2025] SASC 81 B Doyle J 8 appropriate to circumvent the leave and expedition requirements that would apply in the event of an appeal against her Honour’s decision by inviting me to reconsider arguments raised before her Honour. Dr Hanna’s objection to the decision is without legal consequence. Dr Hanna stated that she still proposes to appeal against Hughes J’s decision. Nearly four months have passed; she has not done so. 34 To the extent that Dr Hanna relies upon complaints about the magistrate’s conduct in earlier hearings that she might have raised, but did not in fact raise, before Hughes J, the difficulty is a different (but still substantial) one. Parties to litigation are not generally permitted to advance arguments directed to the same result or relief in a piecemeal fashion. 35 Notwithstanding these reservations about reliance upon these matters in this appeal, I have nevertheless considered whether it is reasonably arguable that they reveal conduct on the part of the magistrate that might cause a fair-minded lay observer reasonably to apprehend that she might make procedural or substantive decisions in the future conduct or hearing of the case other than by reference to the merits. My conclusion is that it is not. 36 In oral submissions, Dr Hanna submitted that: • in the hearing on 20 December 2023, the magistrate interrupted or asked Dr Hanna to stop speaking, and also made fun of Dr Hanna during the hearing on 20 December 2023; • in the hearing on 5 April 2024, the magistrate stated that she did not have power to transfer the case to the Supreme Court or to grant specific performance. The magistrate also engaged in a ‘deception’ by stating that she knew the respondent disputed Dr Hanna’s claim of urgency by virtue of an email sent to the court by the respondent, because the email related to rescheduling the hearing and not ‘urgent specific performance’; • in the hearing on 22 April 2024, the magistrate said that she did not have power to transfer the case to the District Court, whereas in her reasons for refusing the second recusal application she observed that she had that power, with the result that the magistrate ‘lied’; • in the course of a hearing on 12 June 2024, the magistrate foreshadowed that she might not accept a revised claim and was seeking to appease the respondent. 37 Dr Hanna included within the appeal book transcripts of parts of these hearings which she evidently prepared herself. Accepting them as accurate for present purposes, I do not consider that they make good any criticism of the magistrate’s conduct, much less one which might lead a fair-minded observer to -- 10 of 19 -- [2025] SASC 81 B Doyle J 9 think that the magistrate might be prone to diverting from the merits in resolving in any future procedural or substantive matter. 38 In relation to the hearing on 20 December 2023, the occasions on which the magistrate interrupted Dr Hanna appear to me simply to reflect a judicial officer exercising control over the proceeding as they perceive to be appropriate in order to ensure the orderly and efficient progress of a matter. The passage which Dr Hanna characterised as the magistrate making fun of her involved the magistrate posing a number of short questions in succession. These conveyed that the magistrate was having trouble understanding the context and relevance of the submission being made. They perhaps reflect a degree of frustration, but in the context of litigation, occasional frustration is unremarkable, and usually transient. 39 In relation to the hearing on 5 April 2024, the magistrate expressed reservations, on a preliminary basis, about the jurisdiction of the Court to grant specific performance or injunctive relief of the kind claimed,17 and also indicated that the Court did not have power to transfer the matter to the Supreme Court. The latter observation was, in my respectful view, correct. It cannot be productive of a reasonable apprehension of bias. In respect of the former, the magistrate indicated that Dr Hanna might be able to persuade her otherwise. There was nothing problematic about expressing the reservation. It was designed to give Dr Hanna notice that the question of whether the claimed relief could be granted was one which required her careful consideration. 40 The hearing on 5 April 2024 was listed because Dr Hanna had filed an urgent interlocutory application. At the outset, the magistrate expressed a reservation about her power to make some of the orders sought. She indicated that she did not necessarily accept that the application was urgent, adding ‘I know that the respondent has taken issue with that’. There had been email correspondence between the parties and the Court in which the respondent’s solicitor had stated that ‘it is the Respondent’s position that [Dr Hanna] has not demonstrated any urgency’. Whether or not that related to the listing of the hearing, the claimed relief, or both, and whether or not the magistrate misapprehended what was intended, the magistrate’s brief comment about that matter provides no basis for a fair-minded lay observer to form a concern about the magistrate’s neutrality. 41 Like Hughes J, who considered the entirety of the hearing held on 5 April 2024,18 I see no arguable basis for concluding that the magistrate’s conduct during the hearing gave rise to a reasonable apprehension of bias. 42 In relation to the hearing on 22 April 2024, Dr Hanna points to the following comment made by the magistrate: In the ordinary course, when there’s an application made by an applicant to transfer a matter from this court to the District Court on account of jurisdictional limit, on account of the 17 Magistrates Court Act 1991 (SA), s 8(1). 18 Hanna v Flinders University [2025] SASC 6 at [59]-[63]. -- 11 of 19 -- [2025] SASC 81 B Doyle J 10 $100,000, in the ordinary course that’s not opposed by the respondent and the court just makes the order usually on an oral application. This one might be a bit trickier but as I’ve said I’m I don’t have a fixed view but I’m not convinced that I have the power to do it. 43 The respondent submits, with some contextual justification, that when the magistrate referred to ‘this one’ being possibly ‘trickier’, she was referring to Dr Hanna’s application or request for direct transfer to the Supreme Court. However, even if it was in reference to transfer to the District Court, the magistrate did not express any fixed view about the issue. The power to transfer a proceeding to the District Court is discretionary.19 The nature and quantum of a claim is relevant to the exercise of discretion whether to order a transfer. The magistrate was not asked to decide the question of transfer on that occasion. The magistrate made reference in her reasons for not acceding to the second refusal application that she considered she had power to transfer some actions to the District Court, as she had done so frequently. That observation was not inconsistent with the comments she made in the course of the hearing on 22 April 2024, however they are interpreted. The observation certainly does not amount to a ‘lie’, nor could it render the earlier comment a ‘lie’. 44 In relation to the hearing on 12 June 2024, the short point is that Dr Hanna prepared an amended claim that included new parties, and that leave has not yet been granted for the claim to be amended including to join additional parties. Some difficulties with the proposed pleading have been identified, but there has been no contested hearing about the claim. At the end of the hearing on 12 June 2024, the magistrate said: What I might do, so Mr Swan, from your client’s perspective, if I make a statement in the remarks that the three applications are yet to be determined, no leave has been granted for the applicant to join any additional parties to the claim at this and then adjourn the matter until a time after the appeal has been determined, does that suit your client? 45 The context appears to be that the respondent had received queries from concerned employees of the respondent who had purportedly been named as parties to the claim. The magistrate’s remark does not indicate that she was disposed simply to accede to any request made by the respondent. It is the kind of exchange that routinely occurs in procedural hearings before a judicial officer pronounces any orders and concludes the hearing. 46 Based on my review of the orders made by the magistrate and the excerpts from hearings relied upon by Dr Hanna, I reject Dr Hanna’s submissions that the interactions between the respondent’s counsel and the magistrate could be seen by a fair-minded lay observer as akin to those that might occur between a teacher and student. 47 I have considered these matters separately and cumulatively and find no basis to conclude that a fair-minded lay observer might reasonably apprehend that the 19 Magistrates Court Act 1991 (SA), s 19(2). -- 12 of 19 -- [2025] SASC 81 B Doyle J 11 magistrate might deal with the proceeding other than by reference to her assessment of its merits. The second recusal application and the past association with HWL Ebsworth 48 Although Dr Hanna relied upon a number of matters and their cumulative effect, she submitted that the core issue in the appeal related to the magistrate’s treatment of her previous association with HWL Ebsworth in the context of the second recusal application. 49 As has been observed, the question whether the magistrate’s previous association with HWL Ebsworth founded a reasonable apprehension of bias, including the circumstance that the magistrate did not herself disclose the matter, was considered by Hughes J. 50 Whether or not it is even open to re-agitate the general issue in the unusual circumstances of this case, I agree with Hughes J’s conclusion that neither the past association nor the non-disclosure of it provides a basis for recusal. 51 On the appeal before me, however, Dr Hanna emphasised, as a separate and distinct basis for recusal, the way in which the magistrate dealt with the issue in connection with the second recusal application. 52 I would accept that, potentially, the way in which a judicial officer receives and disposes of a submission could amount to conduct which amounts to an independent basis for recusal. It is therefore appropriate to consider the nature of Dr Hanna’s complaints. They included: • that on 10 December 2024, the magistrate directed that an interlocutory application and affidavit seeking the issue of a subpoena to HWL Ebsworth be rejected on the basis it is scandalous and an abuse of process of the Court; • that during the hearing on 11 December 2024, the magistrate declined to answer questions posed of her by Dr Hanna, including whether her partnership was ‘still continuing or not’; • that in response to a suggestion of private communication between the magistrate and HWL Ebsworth (said to arise by inference from a statement made by the magistrate on 5 April 2024), the magistrate caused to be printed an email (between all parties) which was the foundation for the statement she had made at that hearing; • that the magistrate interrupted Dr Hanna ‘during her speech’ but did not do the same to the respondent’s counsel; • that the magistrate delivered her reasons on the second recusal application after adjourning for ‘about 15 minutes’, suggesting that the outcome was pre- determined; -- 13 of 19 -- [2025] SASC 81 B Doyle J 12 • that the magistrate could not have read the authorities referred to by Dr Hanna and only referred to them as having been ‘properly cited’; • that the magistrate’s reasons for refusing the second recusal contained ‘lies’ and ‘deceptions’, in that she mischaracterised her association with HWL Ebsworth as a brief period of employment; and • that in saying that she did not disclose her association with HWL Ebsworth because it did not even cross her mind, the magistrate engaged in ‘another lie’. 53 In oral submissions, Dr Hanna sought to characterise the magistrate’s reference to the brevity of her employment with HWL Ebsworth as a lie or deception on the basis that the magistrate was in fact a partner rather than employee of the firm and that it was not for a short period. The evidence does not reveal whether the magistrate was a salaried or equity partner of the firm; indeed it is not entirely clear that the magistrate was a partner of HWL Ebsworth, but assuming that to be the case, it remains that her association with HWL Ebsworth was in fact relatively brief (approximately two years) and had ceased many years prior to the magistrate becoming involved in the proceeding. 54 Dr Hanna submitted that because the magistrate had previously been a partner of a firm from which, in 2014, a number of partners joined HWL Ebsworth, the relevant association was much longer. I cannot see that that association materially adds to any apprehension that a fair-minded observer would have in this case. Irrespective, the magistrate’s statement was in reference to her time at HWL Ebsworth only. 55 Further, whether the magistrate was a senior employee or a partner with an ownership interest in the business, the distinction is of little consequence in the present context once the proposition that the magistrate ‘retained’ her interest or association with that firm notwithstanding her appointment as a magistrate is rejected. 56 Not only is the notion of a magistrate remaining in any kind of legal relationship with a firm at which they previously worked an utterly unrealistic one, but the evidence relied upon by Dr Hanna disclosed that the magistrate worked at a different law firm after leaving HWL Ebsworth and before being appointed a judicial officer. 57 Because the suggestion that the magistrate retained some commercial interest in HWL Ebsworth was so preposterous, and because there was no objective basis to entertain a suspicion that the magistrate had been involved in any relevant private communications with members of that firm, it was proper to characterise a subpoena directed to that question as scandalous and abusive. For that and other reasons there can be no suggestion that the magistrate’s rejection of the subpoena involved conduct suggestive of any bias. The complaint that the magistrate -- 14 of 19 -- [2025] SASC 81 B Doyle J 13 declined to answer questions from Dr Hanna directed to the existence of any ongoing association is also misconceived, for the same reason. 58 Dr Hanna’s complaint is that the magistrate’s characterisation of her past association was not only wrong but dishonest, and so as to manifest ongoing bias. Even if, which is not clear, the reference to ‘employment’ was inapt, I do not consider a fair-minded observer might apprehend that the reference to a brief period of employment involved dishonesty, or that it was otherwise suggestive of bias. There is no sufficient basis to infer that the magistrate was being other than honest when she stated that it did not initially cross her mind to disclose her prior association with HWL Ebsworth. It had ceased some years before the proceeding, and there was no suggestion the firm had acted for the respondent during the period that the magistrate worked there. 59 The complaint that the magistrate interrupted Dr Hanna’s ‘speech’ is ill- founded. A party makes submissions, not speeches, and those submissions are frequently interrupted by a judicial officer when necessary or appropriate to clarify a matter, reject a submission, or direct attention to a matter of importance. 60 The complaint about the magistrate making reference to the email which had formed the basis for her statement at the hearing on 5 April 2024 that she anticipated that the respondent disputed a particular matter is also ill-founded. 61 The complaint regarding the delivery of reasons shortly after the submissions concluded is without merit. Even if it is appropriate to infer that a draft of the reasons had been substantially prepared before the hearing (and that is not a necessary inference given that there was an interval between the argument and the delivery of the reasons), that is a common and proper practice. It usually reflects diligent preparation rather than partiality or inappropriate pre-judgment. 62 The complaint to the effect that the magistrate did not read the authorities cited to her by Dr Hanna is without merit. Neither is there reason to think that the magistrate was not generally conversant with these authorities, nor was there a need for her to have been familiar with the ins and outs of every case cited to her by the parties. 63 I conclude that the conduct of the magistrate in relation to the second recusal application did not give rise to a reasonable apprehension of bias. Interlocutory application after reservation of judgment 64 After judgment was reserved in this matter, the appellant filed an interlocutory application by which she sought to rely upon additional evidence which was characterised as evidence of repeated misconduct between the magistrate, HWL Ebsworth, and counsel for Flinders University in this matter. 65 The application was supported by an affidavit sworn by Dr Hanna. In her affidavit, Dr Hanna recounts an exchange in the course of the appeal hearing before -- 15 of 19 -- [2025] SASC 81 B Doyle J 14 me and states that this prompted her to do ‘further research’. Dr Hanna explains that she undertook a Google search using the magistrate’s maiden name and the name of counsel in this matter and that it produced two results. These results suggest that in two (somewhat related) matters in 2007 and 2010, counsel was briefed by the magistrate in her then capacity as an instructing solicitor acting for Dr Colin Manock, a forensic pathologist. The first of those matters appears to have commenced in 2005. 66 Dr Hanna states in her affidavit that this confirms that the magistrate was supervised or mentored by counsel for a long time, and she attaches significance to the non-disclosure of this circumstance. 67 That evidence, or submission, misunderstands the role of counsel in litigation. Whilst it is not uncommon for solicitors to learn from barristers retained to act for their clients, it is also not uncommon for barristers to learn from working with solicitors. In either case, this is simply a happy by-product of the main focus of the barrister’s engagement, which is to represent a client in a litigious controversy. A barrister would not ordinarily understand their role to be to supervise or mentor a particular instructing solicitor working at the firm by which he or she is briefed. Even if there were a mentoring relationship, it is far from obvious that, fifteen or so years after the event, this is a matter that ought to be disclosed, much less result in disqualification. But since all that the evidence reveals is that the magistrate’s firm briefed counsel presently retained for the respondent, that is not a matter the non-disclosure of which should cause Dr Hanna any undue concern. More relevantly, it is not a matter which a fair-minded lay observer might reasonably conclude might lead the magistrate to decide the case other than on its merits. 68 Dr Hanna was given an opportunity on 27 May 2025 to make further submissions on this particular topic. They did not materially add to the affidavit she filed in support of the application. 69 I conclude that if I were to admit the evidence on the appeal, it would not affect the disposition of the appeal. In all the circumstances, that is sufficient for me to conclude that it is not in the interests of justice to receive the evidence.20 Had I admitted evidence of the non-contentious fact that the respondent’s counsel acted about 15 years ago in a matter or matters on instructions from a firm at which the magistrate worked, I would still have reached the same decision in this appeal. 70 For completeness, I briefly address the exchange that, on Dr Hanna’s evidence, prompted the further research described above. 71 During the first hearing before me, Dr Hanna submitted that in the course of a hearing before Hughes J, counsel had stated to the Court that he did not know that the magistrate had worked at HWL Ebsworth. Dr Hanna then stated: 20 See r 217.10 of the Uniform Civil Rules 2020 (SA), Wang v Gelnar [2023] SASC 43 at [15] (Stanley J). -- 16 of 19 -- [2025] SASC 81 B Doyle J 15 I now would like him to answer this question: didn’t you know that [the magistrate] was working in HWL Ebsworth? 72 Shortly prior to this, I had requested that Dr Hanna not direct questions to other persons in the courtroom. At all events, counsel responded by stating that he had never said that in any court. Dr Hanna continued: No, you did. And there is a recording. I would like you to go back to the recording and please I would like this to be written in the remark. His response need to be written in the remark because you can go back to the recording and he did say, when I submitted the evidence to the first hearing of Hughes, he [stood] up and say – and confirmed it actually, not say, confirmed that he didn’t know that [the magistrate] was – he didn’t know that [the magistrate] was a partner in HWL Ebsworth. So please record this. 73 Later, in the course of his submissions, the respondent’s counsel said that what he might have said, because it remains the case, was that he did not know whether the magistrate was a partner of that particular firm at a particular time. 74 In her affidavit in support of her interlocutory application, Dr Hanna characterises this as playing with words. 75 On my review of the transcripts of the hearings before Hughes J, it does not appear that counsel in fact made any statement about his own knowledge. However, even allowing for the possibility of incomplete transcription, I see no basis to conclude that counsel misrepresented his own knowledge, much less that if he had done so, this relevantly impugns the magistrate’s neutrality. 76 There is also nothing in the submission that counsel has been ‘defending’ the magistrate, rather than his client Flinders University. That mischaracterises the role that counsel has played in the appeal hearings. Undoubtedly on instructions from Flinders University, he has made relatively brief written and oral submissions answering the arguments that have been advanced in favour of recusal. Whilst it is sometimes said that recusal applications are dissimilar to more conventional inter partes interlocutory issues, there is nothing unusual or wrong about another party making submissions relevant to the question that the judicial officer has to decide. Disposition 77 As indicated, an issue arises as to the competence of the appeal and, if it is competent, whether an extension of time and leave to appeal should be granted. 78 As to the question of competency, Dr Hanna submitted that the decision of Hughes J in relation to that question was ‘totally an error of law’, that Hughes J had ‘no right to say’ that the magistrate’s decision was not amenable to appeal, and that her Honour must have said so to protect the magistrate. These are not arguments of substance. 79 That said, in the present case, when making the second recusal decision, the magistrate went on to award costs in the respondent’s favour. On one view of the -- 17 of 19 -- [2025] SASC 81 B Doyle J 16 authorities, such an order might amount to a decision amenable to appeal on grounds including that it should not have been made by reason of bias on the part of the judicial officer. Dr Hanna’s notice of appeal explicitly challenges the costs order. I did not receive submissions from the respondent directed to this aspect of the question of competency. 80 As observed by Hughes J in her decision,21 the question of competency was not addressed by the parties in the course of that appeal. Her Honour’s judgment draws upon the analysis of Nicholson J in Stone v Moore22 and, in particular, the significance to be attributed to obiter observations made in Michael Wilson & Partners v Nicholls.23 However, the question of whether a decision by a judge not to recuse themself is amenable to appeal has been more recently mentioned in passing by several members of the Court in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs24 (‘QYFM’). 81 Because, for reasons expressed below, I have concluded that I would not grant leave to appeal, nor an extension of time within which to institute the appeal, it is not necessary that I decide the question whether there was a judgment amenable to appeal. It is preferable not to decide that question without the benefit of submissions addressing, inter alia, the significance of the observations made in QYFM. 82 In relation to the question of an extension of time, Dr Hanna submitted that although the challenged decision was made on 11 December 2024, she did not receive a copy of the reasons until 9 January 2025. She further stated that she had sought to appeal earlier than 12 February 2025, but had not been permitted to do so without filing grounds, which she was unable to do until she received a copy of the reasons. She also referred to health issues affecting her from 1 February 2025. These were not detailed, and there was no evidence about them. 83 Whilst I find the explanation for the delay less than satisfactory, on the other hand, relatively limited prejudice, if any, will have been suffered as a result of the delay. In the particular circumstances of this case, the real question is whether leave to appeal should be granted. If it should not, there is no utility in granting the extension of time. 84 For the reasons I have given, Dr Hanna’s contentions relating to any actual or apprehended bias on the part of the magistrate are not reasonably arguable. The fact that at least some of the matters relied upon either were or could have been raised in the context of the previous appeal to this Court (assuming for these 21 [2025] SASC 6 at [28]. 22 (2015) 122 SASR 54. 23 (2011) 244 CLR 427 at [79]-[86] (Gummow ACJ, Hayne, Crennan and Bell JJ). 24 (2023) 279 CLR 148 at [28] (Kiefel CJ and Gageler J), at [123] and [130] (Edelman J) and at [316] (Jagot J). -- 18 of 19 -- [2025] SASC 81 B Doyle J 17 purposes the competency of the appeals) is a further consideration that weighs against a grant of leave to appeal. 85 In my view, the interests of justice are against a grant of leave to appeal, and it would be futile to grant an extension of time within which to institute the appeal. 86 I accept that Dr Hanna has a genuinely held belief as to the merits of her underlying claim. Her concerns about the process are also undoubtedly genuinely held. However, in my view, they are misplaced. There is no reason to doubt that her claim will be resolved on its merits, and it is desirable that it be promptly progressed to a trial, whether that be in the Magistrates Court or elsewhere. -- 19 of 19 --