Supreme Court New South Wales Medium Neutral Citation: Sporting Shooters Association of Australia v Judge (No 2) [2013] NSWSC 1821 Hearing dates: 2 December 2013 Decision date: 03 December 2013 Before: McCallum J Decision: Plaintiffs' application for McCallum J to recuse herself refused Catchwords: DEFAMATION - proceedings in defamation list - application by plaintiffs for List Judge recuse herself - where defendant unrepresented - whether reasonable bystander would apprehend bias Legislation Cited: Civil Procedure Act 2005 Cases Cited: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Sporting Shooters Association v Judge [2013] NSWSC 1783 Category: Interlocutory applications Parties: Sporting Shooters Association of Australia (NSW) Inc (plaintiff) Sporting Shooters Association of Australia (NSW) (Armidale branch) (second plaintiff) Sporting Shooters Association of Australia (NSW) (Coffs Harbour branch) (third plaintiff) Keith Judge (defendant) Representation: Counsel: J Knackdstredt (plaintiff) S Chrysanthou (defendant) Solicitors: Schweizer Kobras (plaintiffs) Kalantzis Lawyers (defendant) File Number(s): 2012/334394 Judgment 1HER HONOUR: These are proceedings for defamation commenced by the New South Wales branch of the Sporting Shooters Association of Australia and two of its member branches, the Armidale branch and the Coffs Harbour branch, against Mr Keith Judge, who is a member of the Tamworth branch of the Association. 2The proceedings have come before me in the defamation list on a number of occasions, most recently on 11 October 2013. On that date, on the application of the plaintiffs, I struck out the defence, directed the defendant to file a further defence to the amended statement of claim within two months and ordered him to pay the plaintiffs' costs. I also made an order referring Mr Judge to the registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance in settling a defence. I stood the proceedings over to the defamation list this week for further directions. 3When the proceedings came before me yesterday the plaintiffs made an application that I recuse myself from any further involvement in the proceedings. A threshold question is whether any jurisdiction or power or authority to do so existed or was enlivened in circumstances where there was yesterday no matter before me for my determination. 4Since the last occasion when the proceedings were in the defamation last, the defendant has foreshadowed filing a notice of motion seeking security for costs from the plaintiffs but that motion has not yet in fact been filed and I was told yesterday that it was not ready to proceed in this week's list. Accordingly, there being no matter before the Court for the Court's determination, I raised with counsel for the plaintiffs the question whether an application for recusal could properly be determined. 5I have been unable (in the short time I have had to look) to find any authority on that question. Uninformed by authority, I would incline to the view that the application was premature. However, since the application was fully argued in the list yesterday and against the risk that I am wrong, I propose to proceed to indicate my views as to the matters raised and to state the ruling I would have made had I taken the view that the application was properly brought at that time. 6The grounds of the application are set out in a letter dated 29 November 2013 from Schweizer Kobras, the solicitors for the plaintiffs, to the Court. Four matters are raised in that letter, the first of which requires some explanation. The letter states: 2.1 on 8 October 2013 and 11 October 2013, her Honour took a point from the defendant in relation to the plaintiff's alleged lack of authority to commence the proceedings, but refused to allow the plaintiff's representative to make fulsome submissions in relation to the validity of that point [T08 at 5 and T11 at 1-2]; 2.2 on 8 October 2013, her Honour invited the defendant to call for minutes of internal meetings of the plaintiffs, in circumstances where: 2.2.1 the defendant had not provided any prior indication that he wished to obtain those documents; and 2.2.2 the documents have no relevance to the plaintiffs' or the defendant's case in circumstances where it has not been established that there is a statutory or constitutional requirement for formal resolutions to be passed by the plaintiffs in order for them to retain solicitors or commence proceedings. 7The import of the contention that I "took a point" from the defendant in relation to the plaintiffs' alleged lack of authority to commence the proceedings is not entirely clear to me. 8It should be explained that, on the occasions referred to, the proceedings were before me in a busy practice list to hear the plaintiffs' application to have the defence struck out. The defendant, who was then unrepresented, is a man who is at times verbose and at times difficult to understand, both by reason simply of his manner of speaking and on account of the dense content of what he says. 9I apprehended from a point sought to be made by the defendant that he was seeking to investigate an issue as to the plaintiffs' authority to commence the proceedings. That is, he appeared to be contending that resolutions had not been passed by each of the incorporated association plaintiffs authorising the relevant association to retain a solicitor and to commence legal proceedings against the defendant. In that context, I informed the defendant that he could call for the relevant minutes. 10My treatment of that issue falls to be considered in the context of my obligation under section 56 of the Civil Procedure Act 2005 to seek to give effect to the overriding purpose of the Act of facilitating the just, quick and cheap resolution of the real issues in the proceedings. 11I should confess that I proceeded on my understanding of the law that, if it was in fact the case that none of the plaintiff incorporated associations had passed a resolution authorising the retaining of solicitors and the commencement of proceedings for defamation against the defendant, that that would be a factor relevant to the authority of the plaintiffs' solicitor to act in these proceedings. I understood Mr Knackstredt, who appears for the plaintiffs, to be submitting yesterday that I am wrong in that understanding but that submission was not fully developed. It may well be so. That is, it may be that I was wrong in my understanding of the law on that issue, but in any event I was not purporting to determine any matter raised by the defendant on that basis. I was simply attempting, as I have said in the context of a busy practice list, to expedite the process of an unrepresented litigant obtaining access to the documents he evidently wished to see for the purpose of investigating that issue. 12An aspect of the complaint is that I did not allow the plaintiffs' legal representative an opportunity to make "fulsome" (I think he meant full) submissions in relation to the validity of that point. My recollection when submissions were put on that issue was that I did not purport to determine any point. My review of the transcript overnight has reinforced my recollection. As I have indicated, it was simply an attempt to expedite the process of the defendant having access to documents he wished to see which, on my understanding of the law, were at least potentially relevant to a legal issue he wished to raise as to the plaintiffs' solicitors authority to act. 13I would add that the submissions yesterday suggested that the principal objection to producing that material was one of confidentiality. That is an issue as to which I heard Mr Lee at the time the call was made and as to which I indicated to him that material other than the individual resolutions, if produced, could be redacted so that no confidential business of the relevant board or committee was disclosed to the defendant. 14I would also note that the plaintiffs' solicitor, Mr Lee, informed me at the time the issue was first raised by the defendant that he (Mr Lee) had in fact personally satisfied himself as to the plaintiffs' authority to commence the proceedings. It was in that context, accepting his having said so, that I considered it appropriate to expedite the process of giving the defendant access to documents which would satisfy him of that fact. 15The second issue raised by the plaintiffs relates to a comment I made on 8 October, as follows: On 8 October 2013, her Honour made the following comments in which she expressed surprise at the nature of the proceedings and the claim, with the implication that it was inappropriate for the plaintiffs to bring the claim and commence the proceedings [T08 at 6]: HER HONOUR: It does seem, I have to say, surprising that it would be within the charter of a sporting association to spend their money suing people for defamation, but if you have looked at that issue, I suppose that is the end of the matter. The whole action is very surprising. I find the claim surprising and the course it has taken has, of course, been very difficult for various reasons. 16It was submitted yesterday that those comments implicitly recorded or reflected my view of some moral impropriety on the part of the plaintiffs in commencing these proceedings. It is enough to say that that is not the case. It is not how the comments were intended to be understood and I do not think it is the way in which any reasonable observer would have understood those remarks. 17The third complaint is at paragraph 2.4 of the letter, as follows: On 11 October 2013, in the course of delivering judgment, of which we regrettably have no been able to obtain either the transcript or the finalised judgment, her Honour stated that the Amended Statement of Claim "cries out" for a defence of qualified privilege. 18The plaintiffs quite reasonably observe that in drawing attention to that particular remark they have not had an opportunity to consider the finalised judgment delivered by me ex tempore on 11 October 2013. That is regrettable and it is my fault. It was a question of my having been involved in a criminal matter between that date and this and not having had an opportunity to correct the transcript of the judgment. I have attended to that overnight and have this morning made available to Mr Knackstredt a copy of the corrected ex tempore judgment: see Sporting Shooters Association v Judge [2013] NSWSC 1783. In that judgment, I said, at [19]: Further, as already noted, the nature of the publication cries out for the possibility of a defence of qualified privilege and, according to what Mr Judge has told the Court, there may also be available defences of honest opinion and substantial truth. 19A reading of the judgment as a whole would indicates that the issue to which that remark was directed was the question whether, after I had struck out the defendant's defence, I should accede to the plaintiffs' submission that he should have no further opportunity to file a further defence. I considered the fact that, if no further defence could be filed, the plaintiffs could proceed to obtain default judgment against an unrepresented individual. In that context I considered whether, if he had been properly advised, there may have been matters properly raised by way of defence. 20The view I intended to express was that this is a matter in which any lawyer advising the defendant would plainly have to turn his or her mind to the availability of the defence of qualified privilege. It may be that the language in which I expressed that view was infelicitous. Nonetheless I remain of the view I expressed in the judgment that it would be in the interests of the administration of justice to allow Mr Judge an opportunity, with the benefit of a referral to a pro bono solicitor, to consider such defences as he may be able to plead including the defence of qualified privilege. 21Finally, the plaintiffs complain at paragraph 2.5 of the letter that: On 11 October 2013, her Honour recommended specific solicitors, namely Salvos Legal, t the Defendant for legal representation, and indicated that she would personally intercede to ensure that the matter was referred to them for pro bono assistance [T11 at 3-4]. 22The contention that I indicated that I would "personally intercede" to ensure that the matter was referred to specific solicitors for pro bono assistance is simply wrong. A reading of the transcript together with an understanding of the way in which the pro bono scheme operates makes it clear that what I was doing was explaining to Mr Judge his entitlement to apply for a referral under the pro bono scheme and explaining how that scheme works. In particular, I was endeavouring to ensure that he understood that a referral does not guarantee the provision of legal advice. 23Referral to the pro bono panel is not just a matter for the benefit of an unrepresented litigant. The court is almost always better assisted by a party who has legal representation, as indeed is a represented opponent of an unrepresented party. 24At page 2 of the transcript of 11 October 2013 I said: There is no guarantee that you will receive assistance but if I refer the matter and if I do so together with a copy of the judgment I have just given and if I help the registrar send it to the kind of people I think might consider it, it may be and as I say there is no guarantee but it may be that a barrister will come forward and volunteer to come forward just to give you some assistance just in pleading a defence. Do you understand? 25I apprehend that the plaintiffs' concern derives from my remark that I would "help the registrar send it to the kind of people" who I thought might consider it. Again, perhaps that remark entailed some infelicity of expression. However, any person with any familiarity with the way in which the pro bono panel is operated within the court would understand that there is a need for the registrar to know the kind of matter that is being referred. I was referring only to the fact that I would draw to the registrar's attention the fact that any person without specialised defamation experience would be unlikely to accept the referral and I was proposing simply to identify those people on the pro bono panel who have defamation experience. 26As it happened, in fact I had no communications whatsoever with the registrar because, as the transcript reveals, shortly after I made those remarks Ms Chrysanthou, an experienced defamation barrister, accepted what would in the old days have been referred to as a dock brief, volunteering to advise Mr Judge with the assistance of a solicitor who regularly briefs her, Mr Kalantzis. Unbeknownst to me until yesterday morning, in the context I have explained of my having been fully absorbed in a criminal matter in the meantime, Mr Kalantzis had in fact filed a notice of appearance for defendant before I came on to the bench yesterday. Those remarks are by-the-by, for reasons I hope are clear from what I have said already. 27The principles relating to an application to a judge to recuse him or herself are well known and there was no controversy as to those principles when the matter was argued yesterday. 28Mr Knackstredt submitted that the relevant principles could conveniently be drawn from the decision of the High Court in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 particularly the principles stated at [10] to [14]. As there observed, the measure of the judge's conduct is the reaction of the hypothetical fair-minded lay observer. That test has been articulated to emphasise that it is an objective one founded in the need for public confidence in the judiciary. It has also been observed, however, in Johnson v Johnson and elsewhere, that the fictional observer is taken to have some understanding of ordinary judicial practice and to take heed of the ways in which such practice changes over time. 29In certainly the last decade, I think it has been accepted that the hypothetical reasonable observer understands the obligation of a judge, particularly in a busy practice list, to take a proactive approach in case management. For the reasons I have given, I do not think any reasonable, well-informed observer, with some knowledge of the nature of the busy practice list that the defamation list is, would apprehend bias on my part on the grounds of the matters raised by the plaintiffs. 30I would note in that context, as observed by Ms Chrysanthou yesterday, that the hypothetical observer would have had regard to the outcome of the plaintiffs' application in which they were successful in having the defence struck out and in obtaining an order for their cost, their only want of success on the application being my refusal to accede to the application that the plaintiff have no leave to re-plead so that they would be able to proceed to obtain default judgment against him. 31For those reasons, the application that I recuse myself, if it was properly constituted, should, in my view, be rejected. 32By consent, I vacate order 2 made on 11 October 2013 that the defendant file a defence to the amended statement of claim within two months of that date. I make orders 1 and 2 in the short minutes of order handed up this morning and grant the liberty in paragraph 3. ********** Amendments 09 December 2013 - Amended paragraphs: Paragraph 22 incomplete. Judgment has been reimported. 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: 09 December 2013