Supreme Court New South Wales Medium Neutral Citation: Gillett v Robinson [2012] NSWSC 990 Hearing dates: 9 and 22 August 2012 Decision date: 29 August 2012 Jurisdiction: Common Law Before: Harrison J Decision: I do not propose to recuse myself in the circumstances of this case. Catchwords: PROCEDURE - courts and judges generally - disqualification - bias - apprehended bias Legislation Cited: Civil Procedure Act 2005 Legal Profession Act 2004 Cases Cited: Attorney-General (NSW) v Lucy Klewer [2003] NSWCA 295 Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Gacic v John Fairfax Publications Pty Ltd [2012] NSWSC 793 Gillett v Robinson [2011] NSWSC 1143 Goldspink v Moodie (Unreported, 28 August 1989, Federal Court of Australia) Hillston v Bar-Mordecai [2002] NSWSC 477 Michael Wilson & Partners Limited v Nicholls and Others [2011] HCA 48; (2011) 244 CLR 427 Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 Wentworth v Rogers (No 13) (Unreported, 13 March 1987, Court of Appeal) Category: Procedural and other rulings Parties: Halina Jain Gillett (Plaintiff) Professor Jeffrey Robinson (Defendant) Representation: N Broadbent (Plaintiff) J K Kirk SC and H Pintos-Lopez (Defendant) P Bambagiotti (Nicholas Coren) P Carr (LawCover) Thomas Mitchell Solicitors (Plaintiff) Blake Dawson (Defendant) Mason Lawyers (Nicholas Coren) LawCover (LawCover) File Number(s): 2006/267258 Judgment 1HARRISON J: I delivered reasons for judgment in the principal proceedings on 26 September 2011: see Gillett v Robinson [2011] NSWSC 1143. I indicated that I would deal with the question of costs at a time suitable to the parties, in anticipation of any application by either party for a special costs order: see [60]. 2The matter came before me for directions on 9 August 2012. As a preliminary matter I raised the question of whether or not I could or should continue to hear any further issue in the proceedings. I placed on the record the fact that Mr Coren had lodged a complaint against me with the Judicial Commission. Even though Mr Coren was no longer the plaintiff's solicitor, it seemed to me that she may nevertheless have some concern that Mr Coren's complaint might have an effect or influence upon me that was adverse to her interests in any decision that I might come to on the outstanding question of costs. 3There was a further complicating factor. Mr Kirk of senior counsel who, with Mr Pintos-Lopez of counsel, appeared for the defendant indicated that he was instructed to seek special costs orders in terms of the defendant's notice of motion dated 30 September 2011. That motion sought a series of costs orders, which in summary were that the plaintiff pay the defendant's costs on an indemnity basis and that Mr Coren indemnify her in relation to such costs pursuant to s 348 of the Legal Profession Act 2004 and/or s 99(1)(b) and (2)(b)(ii) of the Civil Procedure Act 2005. 4The plaintiff was represented by Mr Broadbent of counsel. Mr Bambagiotti of counsel appeared for Mr Coren. Mr Carr of counsel sought leave to appear in the interests of LawCover, which had previously retained solicitors to represent Mr Coren but has since filed a Notice of Ceasing to Act. They all in effect asked that the matter be adjourned for a short time in order for them to obtain instructions on the question of my continuing to hear the matter. There was no opposition to that course. In the circumstances I stood the matter over for mention before me on 22 August 2012 with a direction that any interested party that wished to make an application with respect to my continuing to hear any aspect of the matter remaining to be determined should do so by notice to any other party within seven days. 5The matter returned before me on 22 August 2012. Before that occurred Mr Ross Mason, Mr Coren's solicitor, wrote to my Associate by letter dated 16 August 2012. The terms of that letter should be noted as follows: "We have today received instructions to act on behalf of Mr Nicholas Coren in relation to the above matter. We will attend to the filing and service of a Notice of Appearance as soon as possible. We are instructed: 1. Mr Coren appeared as the solicitor and advocate in the proceedings before his Honour. 2. An application has been made by the defendant for a costs order personally against Mr Coren. 3. His Honour has enquired as to whether there is any objection to his Honour hearing the application. We confirm that Mr Coren does object to his Honour hearing the application, on the following grounds: 1. Mr Coren has lodged a complaint with the Judicial Commission of NSW in respect of his Honour's conduct in the proceedings. 2. In the judgment in the proceedings, his Honour made a number of adverse comments about Mr Coren's conduct in the proceedings. 3. In all the circumstances, the parties or the public might entertain a reasonable apprehension that his Honour might not bring an impartial unprejudiced mind to the resolution of the application. We look forward to hearing from the Court in due course." 6Notwithstanding the terms of that letter, Mr Bambagiotti advised me, when he appeared for Mr Coren on 22 August 2012, that his instructions were that Mr Coren no longer took objection to me hearing the defendant's motion and was now content that I continue in my capacity as the trial judge. Neither Mr Broadbent nor Mr Carr indicated that they had any other or different instructions. 7Despite the fact that none of the interested parties expressed concern about my continued role in the proceedings, I raised my own concern with them directly upon the question of whether or not an objective and disinterested bystander might not consider that there was a reasonable apprehension that I may not in the circumstances be able to bring an impartial and unbiased mind to the matter. I was concerned to make it plain that even the parties' consent to me continuing did not necessarily, and ought not as a matter of principle, foreclose upon any view about the issue that I might otherwise form after proper and careful consideration. Consideration 8With the exception of the defendant, no party made any submissions on the issue that I raised. The defendant's submissions were to the following effect. 9The test in relation to apprehended bias is "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": Michael Wilson & Partners Limited v Nicholls and Others [2011] HCA 48; (2011) 244 CLR 427 at [31]; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6]. "Might" requires a possibility that is real and not remote: Ebner at [7]. The test applies regardless of whether the apprehension is said to arise from an "interest, conduct, association, extraneous information or some other circumstance": Ebner at [33]. 10Proof of actual bias requires proof as to the mind of the decision-maker, based on conduct and statements, rather than assessing what a reasonable person might apprehend: Michael Wilson at [33]. It is an error to conflate the different inquiries required in relation to actual and apprehended bias: Michael Wilson at [33] and [67]. 11The application of the test for apprehended bias requires two steps: first, "the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits"; and, secondly, "an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits". A bare assertion of apprehended bias is "of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making": Michael Wilson at [63]. 12The defendant suggested that the present case is not a conflict of interest case. No relevant interest or association is identified that would preclude me from hearing the application impartially. Rather, it is seemingly a type of prejudgment case, apparently based on a presumption of animus on my part. 13Mr Kirk's submissions addressed each of Mr Coren's points that were raised in Mr Mason's letter. He submitted that the mere fact that a complaint has been made against a judge is not sufficient to give rise to a reasonable apprehension of bias: Attorney-General (NSW) v Lucy Klewer [2003] NSWCA 295 at [14]; Hillston v Bar-Mordecai [2002] NSWSC 477 at [7]-[9]; Wentworth v Rogers (No 13) (Court of Appeal, Kirby P, 13 March 1987, unreported). A judge "charged with the duty of acting judicially both can and should put such considerations out of mind": Goldspink v Moodie (Federal Court of Australia, Foster J, 28 August 1989, unreported). 14Mr Kirk contended that judicial officers should not accede too readily to applications to disqualify themselves from hearing a matter: Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352; Klewer at [13]-[15]. In Klewer, the Court of Appeal endorsed at [14] a statement by Levine J that: "Without doubt no litigant whether represented or otherwise should consider that the making of a complaint to an investigatory body such as ICAC or the Judicial Commission about a Judge hearing that litigant's case will automatically involve that Judge self-disqualifying. The reasons are obvious. It would be a mechanism of much mischief in the administration of justice if that course could be taken with such facility." 15In relation to Mr Coren's concern that I made adverse comments about him, Mr Kirk submitted that judgments must ultimately rest on conclusions adverse to one party or the other. Costs arguments invariably occur after judgment on the issues in dispute. It is a fallacy to reason that, because one side lost the litigation, the judge was biased: Michael Wilson at [67]. Similarly, the mere fact that adverse comments have been made will not give rise to a reasonable apprehension of bias. 16Mr Kirk submitted that it was "absurd" to suggest that a judge cannot determine a costs application simply because he or she has made comments about the conduct of the case. To do so would also be contrary to the statutory scheme. Section 348 of the Legal Profession Act 2004 permits a court to make a personal costs order of its own motion. It is implicit in the statutory scheme that the court conducting the proceedings will be well placed to determine the issue: see generally Practice Note SC Gen 5. In light of the statute, there can be no apprehension of bias merely because a judge has determined that such an order is appropriate. A fortiori, judicial comments suggesting that an application could or should be made cannot, without more, give rise to apprehended bias. 17Finally, Mr Kirk contended that Mr Coren's third point was no more than a restatement of the test for apprehended bias. As is clear from the cases, a bare assertion is not sufficient. Disposition 18I recently had cause to consider a similar issue in Gacic v John Fairfax Publications Pty Ltd [2012] NSWSC 793. I said this at [2]-[3]: "[2] In advance of my consideration of the referred issues, the plaintiffs have moved the Court for an order that I recuse myself on the basis of apprehended bias. The plaintiffs rely in this respect upon Australian National Industries Ltd v Spedley Securities Ltd (1992) 26 NSWLR 411 at 422-3, 426, 430, 442 and 447 and British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283. In the latter case the High Court said this at [145]: "[145] Whenever a judge is asked to try an issue which he or she has previously determined, whether in the same proceedings or in different proceedings, and whether between the same parties or different parties, the judge will be aware that different evidence may be led at the later trial. Judge Curtis's express acknowledgment of that circumstance does not remove the impression created by reading the judgment that the clear views there stated might influence his determination of the same issue in the Laurie proceedings. Allsop P's conclusion was correct. In addition to the possibility of the evidentiary position changing, a reasonable observer would note that the trial judge's finding of fraud was otherwise expressed without qualification or doubt, that it was based on actual persuasion of the correctness of that conclusion, that while the judge did not use violent language, he did express himself in terms indicating extreme scepticism about BATAS's denials and strong doubt about the possibility of different materials explaining the difficulties experienced by the judge, and that the nature of the fraud about which the judge had been persuaded was extremely serious. In the circumstances of this unusual case, a reasonable observer might possibly apprehend that at the trial the court might not move its mind from the position reached on one set of materials even if different materials were presented at the trial - that is, bring an impartial mind to the issues relating to the fraud finding..." [3] In summary, the plaintiffs contend that my findings on damages following the trial before me might create an impression of partiality or prejudice in the mind of a disinterested observer. That is the test as stated in Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-4 as follows: "... That principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it..." [Emphasis added] 19In Re JRL; Ex parte CJL, Mason J stated the principle as follows at 351: "The problem is governed by the principle that a judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the issues (Reg. v. Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, at pp 258-263; Livesey v. New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, at pp 293-294). This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free from bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done. It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established" (Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546, at pp 553-554; Watson, at p 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12, at p 14; 32 ALR 47, at pp 50-51). Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour." 20In Klewer, Davies AJA said this at [20]: "[20] In my view, the last paragraph of his Worship's reasons raised no apprehension of bias on his part. He had already made it clear that his handling of the proceedings in which Mrs Klewer had been involved did not, in his view, raise any reasonable apprehension of bias. In this circumstance, his Worship's remarks did not suggest that, in his view, there was any reasonable apprehension of bias. His Worship simply referred to what he regarded as "good policy". His Worship was incorrect in that view for it is not good policy and certainly not appropriate that a judicial officer should disqualify himself just because one of the parties before him has lodged a complaint with the Independent Commission Against Corruption. A judicial officer should disqualify himself only if there are facts which raise a reasonable apprehension of bias on his or her part. Nevertheless, the reference to "good policy" did not suggest that Magistrate Rheinberger would fail to be impartial and unprejudiced in his handling of Mrs Klewer's case. Indeed, the reference to what he regarded as good policy showed that the Magistrate kept in the forefront of his mind the need to be and to be seen to be without bias." 21I have reviewed my reasons for judgment in the principal proceedings as well as the whole of the transcript. Much of what passed between Mr Coren and me during the trial is actually included in my judgment. Doing the best I can, it does not seem to me that any comments that I made during the course of the proceedings fell outside what might generally be considered to be the ordinary interplay between counsel and the bench. If others were in due course to form a different view, the authorities to which I have been referred do not in my opinion excite a conclusion that I should recuse myself for apprehended bias before that occurs. 22I am also comforted in this view by the fact that I did not, nor did either party, make any reference to costs throughout the proceedings, either in a way that was intended to cast the other party in a poor light, or was capable of characterising the conduct of anyone appearing in the case in a particular way. This is important in the sense that the proceedings were not conducted in an atmosphere generated by any expectation that a particular costs order was inevitable or even likely. Even if it were, the principles adverted to in Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at [178]-[180] would appear presently to be more than apposite: "[178] In cross-examination of Mr Barrak, his Honour raised some points which the witness himself said were important and significant. It was certainly not wrong for his Honour to point out to the witness that written material to which the witness was referring was not in evidence. After a number of exchanges his Honour made it clear that he was telling the parties what he provisionally had in mind but emphasising that he was keeping an open mind, and was anxious neither to foreclose his decision, nor to cause any person to think that he might have done so. At one point, his Honour said to counsel for the respondents that he hoped that he had some better submissions than the one that he had just made. Almost every counsel of any experience has, on occasion, been the subject of a judicial observation of that kind. [179] The respondents were correct in submitting, and the Full Court in holding, that it was right in determining this issue to look not only at the course of the trial, but also at the reasons for judgment, and to read them together to see whether the cumulative effect was one of apparent bias. As I have already indicated, the judicial interventions during the trial itself would not give rise to an apprehension of bias. Nor would the reasons for judgment, of themselves standing alone. It was not unreasonable for the trial judge to observe in his judgment that time and expense had been wasted on issues of no sufficient bearing upon the critical ones. Furthermore, it was not an expression of any apparently biased viewpoint, for his Honour to state that the nett income of Parramatta did not reflect a thriving or substantial architectural practice. There had been a real issue related to this matter, of Parramatta's entitlement to design and construct a building based on the plans for a substantial reward. Parramatta's experience and the extent of its architectural and building practice, were highly relevant to the likelihood or otherwise of an agreement by the joint venturers to engage Parramatta for these purposes. [180] Taken cumulatively, his Honour's interventions and reasons for judgment do not give rise to an apprehension of bias. Critical, strong and candid they may have been, but excessively so they were not. To some extent they may be taken to be expressions of exasperation, unfortunately so perhaps, but as a matter of degree, still falling short of apparent bias. This Court is in the same position as the Full Court in deciding the ground of appeal on the issue of bias. Both courts have to do so on the basis of the written record. The view that I take of that is, as I have already foreshadowed, that the appellant has established an absence of apparent bias." Conclusion 23I consider that I should not recuse myself in the circumstances outlined above. I will hear the parties on the question of costs at some date convenient to them and to the Court, to be arranged in consultation with my Associate. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision 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 or Tribunal in which it was generated. Decision last updated: 30 August 2012