Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Simmons v New South Wales Trustee and Guardian [2014] NSWCA 144 Hearing dates: 29 April 2014 Decision date: 29 April 2014 Before: Barrett JA Decision: I decline to disqualify myself from participation in the hearing of the application for leave to appeal now before the Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - courts and judges - recusal - no matter of principle Legislation Cited: Real Property Act 1900 (NSW), s 42 Cases Cited: Michael Wilson & Partners v Nicholls [2011] HCA 48; 244 CLR 427 Simmons v Henwood [2013] NSWCA 184 Category: Interlocutory applications Parties: Paul Ernest Simmons (Applicant) New South Wales Trustee and Guardian (First Respondent) Raymond John Henwood (Second Respondent) Dorothy Frances Simmons (Third Respondent) Representation: Counsel: P E King (Applicant) Submitting Appearance (First Respondent) J M Ireland (Second Respondent) S F Hughes (Third Respondent) Solicitors: The People's Solicitors Pty Ltd (Applicant) I V Knight, Crown Solicitor (First Respondent) Denniston & Day (Second Respondent) Boyd House & Partners (Third Respondent) File Number(s): 2031/356521 Decision under appeal Citation: [2013] NSWSC 1688 Date of Decision: 2013-11-18 00:00:00 Before: Hammerschlag J File Number(s): 2011/79920 Judgment 1BARRETT JA: Counsel for the applicant on this application for leave to appeal has asked that I disqualify myself from participation. He does so because I was one of the three judges who heard and determined an interlocutory appeal involving the same parties in the same litigation, which appeal was decided in June 2013: Simmons v Henwood [2013] NSWCA 184 (Emmett and Gleeson JJA; Barrett JA dissenting). 2A central issue on the present application is the adequacy or otherwise of the revised pleading propounded by the plaintiff in the Equity Division after determination of the earlier appeal. One of the main questions now is the same, in essence, as it was on the previous occasion, that is, whether fraud such as to defeat s 42 of the Real Property Act 1900 (NSW) and the indefeasibility it creates is adequately pleaded in the revised statement of claim. 3It is put that my involvement in the earlier case and my reaching of a conclusion adverse to the plaintiff on that occasion creates an appearance of potential prejudgment adverse to him. The test, of course, is that stated in Michael Wilson & Partners v Nicholls [2011] HCA 48; 244 CLR 427 at [31]: "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". 4All three judges who sat on the earlier appeal were of the opinion that fraud in the s 42 sense had not been adequately pleaded. The difference of opinion was as to whether the plaintiff should be given another opportunity to replead. 5It is submitted that my holding on the earlier occasion indicated support for or endorsement of the primary judge's finding in his judgment which was under review in the earlier appeal that the proceedings are an abuse of process. That is simply not so when one reads [15] of my earlier judgment in which I described the primary judge's conclusion of abuse of process as erroneous. That being so, the only tangible factor of present relevance is that, on the earlier occasion concerning a different pleading and in relation to the exercise of a discretion, I reached a decision adverse to the present applicant (that is the plaintiff). 6That, to my mind, says nothing about how I will approach and decide - or, equally importantly, how it may be perceived by a fair-minded lay observer that I will approach and decide - the questions arising on this leave application. They are questions that go wholly to a new and revised pleading on which the judge below made a decision after the earlier appeal involving a different pleading had been determined. 7I decline to disqualify myself from participation in the hearing of the application for leave to appeal now before the Court. ********** 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: 07 May 2014