Prakash v Commonwealth Securities Ltd (No 2)

1. [1]

   I summarily dismissed these proceedings on 29 April 2026: Prakash v Commonwealth Securities Ltd [2026] NSWSC 432.

2. [2]

   By Notice of Motion filed on 30 April 2026 the Plaintiff, Mr Prakash, moves the Court for a suite of orders. There are two principal issues. First, Mr Prakash seeks that I disqualify myself from further determining these proceedings on the ground of apprehended bias. Secondly, he seeks that the orders made on 29 April 2026 be set aside pursuant to rr 36.16(3A) and (3B) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The balance of the motion has either fallen away or only arises if the Court sets aside the orders made.

3. [3]

   In support of his motion, Mr Prakash relies on written submissions filed on 1 May 2026 and an affidavit affirmed on 30 April 2026, both of which I have read. The just, quick and cheap resolution of this application is best achieved by my determining the matter on the papers.

Disqualification application

1. [4]

   Mr Prakash seeks my disqualification on the ground of apprehended bias. If his application is made out, I cannot determine the balance of his motion.

2. [5]

   The law is clear. A judge is disqualified from determining a matter “if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at 344 [6]. In Director of Public Prosecutions (Vic) v Smith [2024] HCA 32; 98 ALJR 1163 at 1183–1184 [92], the High Court confirmed that the test to establish a reasonable apprehension of bias requires an:

   1. (1)

      identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits;

   2. (2)

      articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and

   3. (3)

      assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.

3. [6]

   Mr Prakash’s submissions and evidence do not attempt to address any of these criteria. His application is in substance founded on the ground that I rejected his argument that the Court had no jurisdiction to make any orders. Mr Prakash argues that I therefore deprived him of the benefit of a judgment which he says he had obtained and thereby acted without jurisdiction.

4. [7]

   In Clark v Attorney General for New South Wales (No. 2) [2023] NSWCA 3, the applicant applied for the orders made against him by the Court of Appeal to be set aside pursuant to UCPR r 36.16(3A). He then sought the disqualification of the judges who had made the original orders from determining his motion. In refusing that application, the Court (Macfarlan, White and Mitchelmore JJA) observed at [11] that:

5. [8]

   Such is the case here. I reject Mr Prakash’s submission insofar as he contends that because I determined the issues in the proceedings adversely to him, this might lead a fair-minded lay observer reasonably to apprehend that I might not bring an impartial mind to the determination of the issues before the Court.

6. [9]

   Mr Prakash submits that a reasonable apprehension of bias is created because I delivered “a summary dismissal via email, without a hearing”. This mischaracterises what occurred. This matter was heard on 23 April 2026. Mr Prakash attended that hearing, having travelled from Queensland specifically for the occasion. He was given considerable time in Court to articulate his arguments. I delivered judgment on 29 April 2026 in open court. However, at the hearing on 23 April, I indicated to the parties that I did not require their attendance in person when I delivered my judgment in open court, and that the reasons would be emailed to them. I adopted this course to save the parties, and particularly Mr Prakash, the time and expense of having to travel to receive a judgment in person. This submission is untenable.

7. [10]

   Relatedly, Mr Prakash also contends that I denied him natural justice and a fair opportunity to respond to CommSec’s position. There is no substance in this submission. As stated, Mr Prakash was granted considerable latitude at the hearing before me on 23 April 2026. He was permitted to speak at length and without interruption. He was allowed to make grave accusations of criminal conduct, including against officers of the Court sitting next to him at the bar table, that a legal practitioner would never have been allowed to make. I repeatedly enquired of Mr Prakash whether he had anything further he wished to say and he availed himself of this invitation. It does not follow that because I dismissed the proceedings following the hearing that the hearing was, by that fact alone, unfair.

8. [11]

   I do not accept that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of these proceedings. Accordingly, I refuse to disqualify myself.

Set aside application

1. [12]

   Mr Prakash seeks that the orders made by the Court on 29 April 2026 be set aside pursuant to UCPR rr 36.16(3A) and (3B).

2. [13]

   Rule 36.16 relevantly provides as follows:

3. [14]

   In Majak v Rose (No 5) [2017] NSWCA 238 at [12], the Court of Appeal (Leeming and Simpson JJA and Emmett AJA) explained that the rule provides the Court with a facility to “permit readily identifiable, readily rectifiable, inadvertent errors to be corrected without the complication and expense of an appeal”. The power “does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them”.

4. [15]

   Yet that is precisely what Mr Prakash seeks to do. The thrust of his argument in support of this application is that the Court was functus officio when it dismissed the proceedings and acted without jurisdiction in relation to, inter alia, a motion he brought to secure a judgment. He made this argument at the hearing and I rejected it. He also brings a complaint about how I characterised the nature of the proceedings in the Supreme Court of Queensland in my reasons for judgment. In either case, if Mr Prakash considers that my judgment was in error, he can seek the leave of the Court of Appeal to appeal those orders. The present motion is misconceived and must be dismissed.

Conclusion

1. [16]

   I do not need to hear from the Defendant. Accordingly, I will make no order as to the costs of this motion: Woolf v Brandt (No 3) [2024] NSWCA 6 at [4] (Kirk and Adamson JJA). The Court therefore orders that:

   1. (1)

      The Plaintiff’s Notice of Motion filed on 30 April 2026 be dismissed.