Supreme Court New South Wales Medium Neutral Citation: Zepinic v Chateau Constructions (Aust) Limited [2013] NSWSC 1802 Hearing dates: 15 November 2013 Decision date: 15 November 2013 Jurisdiction: Equity Division Before: Darke J Decision: The plaintiff's Notice of Motion filed on 8 November 2013 seeking disqualification is dismissed with costs. Catchwords: COURTS AND JUDGES - bias - apprehended bias - litigant intends to appeal against an earlier decision of judge - whether a fair-minded lay observer might apprehend bias Cases Cited: British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283 Chateau Constructions (Aust) Limited v Zepinic [2013] NSWSC 1326 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 Category: Procedural and other rulings Parties: Dr Vito Zepinic (In Person) (Plaintiff) Chateau Constructions (Aust) Limited (Defendant) Representation: Counsel: B Ilkovski (Defendant) Solicitors: Toomey Pegg Lawyers (Defendant) File Number(s): 2013/132492 Publication restriction: Nil Judgment - EX TEMPORE 1By Notice of motion filed on 8 November 2013 Dr Zepinic seeks an order in the following terms: To disqualify Darke J, Robb J and Nicholas J from hearing case number 2010/132492 on the ground of a reasonable apprehension of bias." 2It was explained by Dr Zepinic that his reference to the case number was in error and he intended to refer to case 2013/132492. Those proceedings are the proceedings commenced by Dr Zepinic in April of this year in which various notices of motion have been set down for hearing by me today. The references to Justices Robb and Nicholas in the order sought are not relevant and may be ignored. 3In the affidavit in support of the motion affirmed by Dr Zepinic on 5 November 2013, reference is made to a judgment given by me on 13 September 2013 in related proceedings between the same parties (see Chateau Constructions (Aust) Limited v Zepinic [2013] NSWSC 1326), and to the filing by Dr Zepinic of a Notice of Intention to Appeal in respect of that judgment. 4In his submissions in support of the motion, Dr Zepinic stated that the fact that he intended to appeal the case heard by me in September was the ground for the application that I be disqualified. No other ground was articulated. In particular, it was not suggested that I be disqualified on the ground of any perceived pre-judgment (compare Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 and British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283). 5The relevant principles to apply on an application for disqualification on the grounds of apprehended bias are conveniently set out in the joint judgment of the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] to [8]. It is there stated that: 6. ... the governing principle is that, subject to qualifications relating to waiver ... or necessity ... a judge is disqualified 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. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. 7. ... Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror. 8. The apprehension of bias principle admits the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. 6The notion of the fair-minded lay observer was considered by the High Court in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, particularly at [12] and [13] of the joint judgment. At [12] their Honours stated: ...the observer is taken to be reasonable; and the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial." 7At [13] their Honours continued: Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. 8Returning to the two steps which were identified by the High Court in Ebner (supra), Dr Zepinic identified that which might lead a judge, in this case me, to decide the matters currently before me other than on their legal or factual merits, as the fact that he has indicated his intention to appeal against my earlier judgment. However, in my view, Dr Zepinic was unable to articulate any logical connection between that fact and a feared deviation from the course of deciding the matters currently before me on their merits. 9In accordance with the statements made in Johnson v Johnson (supra) to which I have referred, a fair-minded lay observer must be taken to have a basic understanding of the judicial system which comprises a hierarchy of courts and which allows for appeals (including as of right). The observer would also be taken to know that appeals are an important aspect of the judicial system, are not uncommon, and that judges in courts from which appeals lie have to expect that appeals will be pursued in respect of their decisions on a regular basis. 10In all the circumstances, I do not that think that Dr Zepinic has demonstrated that a fair-minded lay observer might reasonably apprehend that I might, as a real not remote possibility, not bring an impartial mind to the resolution of the issues which are raised in the various notices of motion which are now before me, merely because Dr Zepinic has indicated that he intends to pursue an appeal in respect of an earlier decision of mine. Accordingly, Dr Zepinic's Notice of Motion seeking disqualification must be dismissed. The orders of the Court will be that the plaintiff's Notice of Motion filed on 8 November 2013 seeking disqualification is dismissed with costs. ********** 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: 05 December 2013