Supreme Court New South Wales Medium Neutral Citation: Clarke, Dallas v State of New South Wales (No 2) [2014] NSWSC 578 Hearing dates: 22/04/2014 Decision date: 22 April 2014 Jurisdiction: Common Law Before: Harrison AsJ Decision: I decline to recuse myself. Catchwords: PRACTICE AND PROCEDURE - Application for recusal of presiding Judge on the grounds of apprehended bias Legislation Cited: Judicial Officers Act 1986 (NSW) Uniform Civil Procedure Rules 2005 (NSW), rr 6.29, 13.4, 14.28 Cases Cited: Clarke, Dallas v State of New South Wales [2013] NSWSC 1436 Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 Forrester v White (1988) 484 US 219 Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 Category: Interlocutory applications Parties: Dallas Clarke (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: R Lee (Defendant) Solicitors: D Clarke (Plaintiff in person) Crown Solicitors' Office (Defendant) File Number(s): 2013/111083 Publication restriction: Nil Ex tempore Judgment 1HER HONOUR: On 11 April 2013, the plaintiff filed three statements of claim in Dallas Clarke v State of New South Wales 2013/111083, 2013/111053, and 2013/111036. On 18 April 2013, the plaintiff filed a notice of motion, seeking that all three proceedings be heard together. On 11 July 2013, the defendant filed three notices of motion, seeking to have all three statements of claim struck out or dismissed. 2On 2 October 2013, I ordered that proceedings 2013/111053 and 2013/111036, be dismissed. I further ordered that the causes of action of malicious prosecution and wrongful arrest be pleaded in one amended statement of claim, in proceedings 2013/111083. 3In the interests of justice, I made an order that the plaintiff be referred to the Registrar for referral to a barrister or solicitor for legal assistance in redrafting his amended statement of claim. 4On 4 November 2013, by the due date, the plaintiff filed an amended statement of claim in proceedings 2013/111083. On 14 November 2013, the Deputy Registrar wrote to the plaintiff informing him that, after making calls for an expression of interest, no pro bono assistance was forthcoming and the referral was terminated. 5Today, the plaintiff has made an application that I recuse myself on the ground of apprehended bias. The ground upon which he says there is an apprehension of bias, is that he did not receive a fair hearing on the last occasion. As I understand it, he is saying that he came to court on the last occasion to meet the case that the claims were embarrassing. He also says that because there was a referral to an American decision, in relation to judicial immunity, he was not prepared to meet that case. 6Recently, the Court of Appeal in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98, usefully set out the test in relation to apprehended bias at [75] to [78], per Gleeson JA (with whom Emmett JA and Tobias AJA agreed): "Apprehended bias 75 A judge should not sit to determine a case if 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 to be determined: Michael Wilson & Partners Limited v Nicholls & Others at [31]. 76 The test of apprehension of bias is objective. It does not require an assessment of the state of mind of the judge, as is necessary on an inquiry about actual bias: Michael Wilson & Partners Limited v Nicholls & Others at [33]. Accordingly, this Court is not required or permitted to form a view as to whether the primary judge could be relied upon to determine the case impartially and on the evidence before her: Rouvinetis v Knoll [2013] NSWCA 24 at [24] per Basten JA (Ward and Barrett JJA agreeing). 77 An allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. The question is not whether the judge had in fact prejudged an issue: Michael Wilson & Partners Limited v Nicholls & Others at 446 [67]. 78 It is necessary to keep in mind that claims of apprehension of bias are to be considered in the context of ordinary judicial practice. Active case management, as part of modern litigation, often requires that trial judges intervene in the conduct of cases. Judges are not expected to wait until the end of the case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. Accordingly, the expression of tentative views, which reflect a certain tendency of mind of the judge, are not on that account alone to be taken to indicate prejudgment. Moreover, counsel are usually assisted by hearing the judges' tentative opinions on matters in issue and being given an opportunity to deal with them: Johnson v Johnson [2008] HCA 48; 201 CLR 488 at [13] (a case of alleged apprehension of bias) which referred to earlier comments in Vakauta v Kelly [1989] HCA 44; 167 CLR 568 at 571 (a case where actual bias was alleged)." [Original emphasis] 7The difficulty with the plaintiff's application is that he was in receipt of the notices of motion filed by the defendant, and also their written submissions, prior to the hearing. In all three cases, the defendant sought that the proceedings be struck out under r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). UCPR 14.28 reads: "14.28 Circumstances in which court may strike out pleadings (cf SCR Part 15, rule 26; DCR Part 9, rule 17; LCR Part 8, rule 3) (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court. (2) The court may receive evidence on the hearing of an application for an order under subrule (1)." 8UCPR 14.28 does not specifically refer to frivolous or vexatious proceedings. It encompasses wider considerations. Prior to the hearing, the plaintiff received the defendant's submissions that included the text of UCPR 14.28. 9The only part of the statement of claim that was struck out, when I last dealt with these proceedings, was the cause of action of conspiracy. One of the orders sought in the defendant's notice of motion was to strike out or dismiss the plaintiff's claim against the Magistrate on the basis she had judicial immunity pursuant to UCPR 13.4 or, alternatively UCPR 6.29. 10The law in relation to the immunity of judges, pursuant to the Judicial Officers Act 1986 (NSW), and the common law, was set out in the defendant's submissions at [73]. At [73D] of those submissions, reference was made to Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166. In my earlier decision of Clarke, Dallas v State of New South Wales [2013] NSWSC 1436, I acknowledge that I reproduced a different paragraph of the Fingleton decision, which I thought would be more helpful to the plaintiff in understanding the principle of judicial immunity. In the passage I cited from Fingleton, reference is made to the United States decision of Forrester v White (1988) 484 US 219. It is this part of the quote that the plaintiff claims he was not able to meet at the earlier hearing. 11Today I am dealing with two causes of action, malicious prosecution and wrongful arrest. I have not previously dealt with them. I do not think that a fair-minded lay observer in the circumstances might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the questions to be determined. In my view, the test set out in Reid is not satisfied. 12Hence, I decline to recuse myself. ********** 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: 21 May 2014