Supreme Court New South Wales Medium Neutral Citation: Capilano Honey Ltd v Dowling [2018] NSWSC 876 Hearing dates: 23 March 2018 Decision date: 04 April 2018 Jurisdiction: Common Law Before: McCallum J Decision: I decline to recuse myself Catchwords: COURTS AND JUDGES – apprehended bias – where defendant's request for recusal in other proceedings acceded to – question raised by plaintiffs as to whether I should recuse myself in these proceedings Cases Cited: Antoun v R (2006) 224 ALR 51; [2006] HCA 2 Capilano Honey Ltd v Mulvany (No 2) [2017] NSWSC 1237 Dow v Dowling [2017] NSWSC 1793 Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Gaudie v Local Court of New South Wales (2013) 235 A Crim R 98; [2013] NSWSC 1425 Lee v Cha [2008] NSWCA 13 Seven Network v Dowling [2017] NSWSC 1803 Vakauta v Kelly (1989) 167 CLR 568 Category: Procedural and other rulings Parties: Capilano Honey Ltd (first plaintiff) Ben McKee (second plaintiff) Shane Dowling (defendant) Representation: Counsel: ATS Dawson SC, M Cowden (plaintiffs) Defendant self-represented Solicitors: Addisons (plaintiffs) File Number(s): 2016/299522 Publication restriction: Suppression orders have been made in these proceedings but those orders do not apply to this judgment Judgment 1. HER HONOUR: The plaintiffs in these proceedings have raised a question as to whether I should recuse myself. I am not persuaded that I should. Although no application for recusal was made, in the unusual circumstances in which the question was raised, it is appropriate to publish my reasons for reaching that conclusion. Circumstances in which the question was raised 1. Mr Shane Dowling conducts a website titled "Kangaroo Court" which he describes as a "judicial corruption website". Mr Dowling boasts having criticised more judges than he can remember. His publications also criticise others and have given rise to several proceedings in this Court brought by individuals or companies seeking to have material suppressed. 2. The present proceedings were commenced on 7 October 2016. On that date, Hall J made an order pursuant to s 10 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), supressing publication of the hearing of the proceedings. That order was subsequently continued by Davies J. 3. The conduct of the proceedings has been complicated by the informality with which interlocutory applications have been approached. It is not unusual in proceedings in the Defamation List for the Court to dispense with the formal requirements of the rules in aid of the overriding purpose stated in s 56 of the Civil Procedure Act 2005 (NSW) to facilitate the just, quick and cheap resolution of the real issues in the proceedings but, in the present case, that approach has proved difficult. At some point last year, Mr Dowling foreshadowed an application to have the proceedings struck out for want of prosecution. The application was due to be heard in open court on 16 June 2017 but neither party was ready or able to proceed on that date. The parties proposed, by email, that the application should be dealt with on written submissions, subject to the Court's need to hear from the parties. Written submissions closed in August 2017. 4. In separate proceedings, four plaintiffs referred to by the pseudonym "Doe" sue Mr Dowling. On 19 December 2017, I published a judgment in those proceedings: Doe v Dowling [2017] NSWSC 1793. 5. It is appropriate to set out the exchange that occurred following publication of the judgment in full: "HER HONOUR: Mr Dowling, I think the next step is for you to file a defence to the amended statement of claim. DEFENDANT: There's two things, one is file a notice of motion for you to stand down for perceived bias. We don't need to get to the real bias. Irrespective of anything. HER HONOUR: Can I stop you there Mr Dowling. I've previously indicated that I didn't want to hear your matter. You indicated that - just listen to me. You indicated that you had no objection. If you object I'm more than happy not to hear your matter. DEFENDANT: Number 2 [although the transcript does not record this, I infer that Mr Dowling here foreshadowed his intention to appeal the decision just published]. HER HONOUR: Why don't I stand the matter over before - it's probably best if I stand it into the registrar's list say in early March and that will give you time to file your notice of appeal. DEFENDANT: And number 3 is your judgment in 7 versus the publisher X which is now Channel 7 or 7 Network, but Shane Dowling. In relation to the computer issue, subpoena of the computer, you've never published a judgment. You were meant to and I've never received one. HER HONOUR: I think I have. That can be sent. If you give my associate an email address I think that can be sent to you today but judgment was published. DEFENDANT: I asked time and again and never was and I was gaoled for four months. HER HONOUR: I'll look into but if you can give us an email address. I think Mr Keegan is nodding. There was a judgment published, wasn't there? SMARK: Yes. We'll email it to Mr Dowling forthwith. DEFENDANT: I think the judge's associate can do it. HER HONOUR: Mr Dowling, Mr Smark is offering to email it to you. There's no difficulty with that. DEFENDANT: So that's in relation to the computer, that judgment and no problem. Stand down. HER HONOUR: Sorry? DOWLING: Well it's not a problem. Stand down to a date in March like you said. HER HONOUR: Can you give me a Monday in March Mr Smark? SMARK: Certainly your Honour. 5 or 12 March 2018. HER HONOUR: I stand the proceedings over into the registrar's list. Do you have a listing date before Wilson J before then? DEFENDANT: 7 February. HER HONOUR: Would it be preferable to stand it into that list so it's before her Honour? It's just unusual for a matter to have two future dates. Is that in these proceedings? DEFENDANT: No. HER HONOUR: I will stand these proceedings over to 5 March 2018 before the registrar and I note that I had previously indicated my preparedness to recuse myself in these proceedings by reason of publications Mr Dowling has published about me. Mr Dowling subsequently stated that he had no objection to my hearing the matter so I did. He now objects to my hearing any further applications in these proceedings and in accordance with my earlier indication I recuse myself. ADJOURNED TO MONDAY 5 MARCH 2018" 1. Mr Dowling's request for the judgment that had previously been published in the proceedings brought against him by Chanel Seven prompted a review of correspondence sent to chambers as a result of which was discovered an oversight in respect of the further listing of his application to have these proceedings dismissed for want of prosecution. Upon discovery of that oversight, the proceedings were relisted for the purpose of hearing oral submissions. Mr Dowling responded to the re-listing by foreshadowing a recusal application in these proceedings. 2. The proceedings were relisted on 16 February 2018. On that occasion, Mr Dowling did not appear. As a recusal application had been foreshadowed by him, I refused to make any order in the proceedings other than to stand them over to enable Mr Dowling to appear and make his recusal application. 3. The proceedings came before me again on 2 March 2018. On that occasion, Mr Dowling confirmed his contention that I should recuse myself but, at the same time, sought other orders, including the determination of his application to have the proceedings dismissed for want of prosecution and transfer of the proceedings to the Federal Court. I explained that, the issue of recusal having been raised, that would have to be determined first, before any other step could be taken in the proceedings. Mr Dowling then sought an opportunity to take legal advice, submitting that the conduct of these proceedings could have implications for criminal proceedings brought against him in the Local Court. I granted a short adjournment to allow Mr Dowling to take advice and directed him to inform the Court and the plaintiffs in advance of the adjourned date whether he proposed to pursue the foreshadowed recusal application in these proceedings. 4. On 22 March 2018, Mr Dowling informed the Court and the plaintiffs by email that he did not propose to make a recusal application. The proceedings came back before me the following day. On that occasion, the plaintiffs submitted that, notwithstanding Mr Dowling's position, I should consider recusing myself on the basis of my recusal in the Doe proceedings. The plaintiffs expressly did not make their own application but sought only to assist the Court. Applicable principles 1. The principles to be applied in determining whether a judge is disqualified from hearing a matter on the grounds of apprehended bias are stated in the decision of the High Court in Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6] to [8] as follows: "6 Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), 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(41). That principle gives effect to the requirement that justice should both be done and be seen to be done (42), 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 The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. 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 of 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. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed." Plaintiffs' basis for raising the question 1. The plaintiffs provided written submissions which contended at [7] that I should recuse myself from hearing these proceedings "for three reasons: 1. it is necessary for the due administration of justice, and/or the appearance thereof; and 2. it is necessary to prevent an abuse of the Court's processes." 1. The submissions did not address those reasons under separate headings and involved a measure of overlap. The premise of the submissions was that the exchange between the Court and Mr Dowling on 19 December 2017 amounted to a determination that a fair-minded observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions I would be required to decide. The plaintiffs submitted that the recusal that date entailed a finding that there is an apprehension of bias and raised a question as to whether that apprehension is "ineradicable", citing the decision of the High Court in Vakauta v Kelly (1989) 167 CLR 568 at 587 per Toohey J. 2. It is relevant to consider the context in which his Honour adopted that term. The whole of the relevant passage is as follows: "There is no reason why, in authority or in principle, a litigant who is fully aware of the circumstances from which ostensible bias might be inferred, should not be capable of waiving the right later to object to the judge continuing to hear and dispose of the case. That is not to say that the litigant in such a position must expressly call upon the judge to withdraw from the case. It may be enough that counsel make clear that objection is taken to what the judge has said, by reason of the way in which the remarks will be viewed. It will then be for the judge to determine what course to adopt, in particular whether to stand down from the case. For counsel to invite the judge to withdraw from the case may be quite premature, particularly if the judge acknowledges the apparent bias in what has been said and thereafter takes steps to dispel that apprehension. But, as Dawson J noted in Re J.R.L.; Ex parte C.J.L. (54), suspicion of bias based on preconceptions existing independently of the case "may well be ineradicable". In that situation there will be no option but to ask the judge to disqualify himself. In any event objection must be taken: see Re McCrory; Ex parte Rivett, (55). It was not taken in the present case." 1. Those remarks reveal that the passage in question was a discussion of bias based on preconceptions existing independently of the case. There has been no suggestion of prejudgment or preconception of the issues in the proceedings on my part in the present case. The question properly raised by the plaintiffs is whether the exchange that occurred on 19 December 2017, which concluded in my agreeing to recuse myself, creates an ineradicable apprehension of bias and, separately, whether there is independently such an apprehension based on the issue raised by me that day (the fact that Mr Dowling has criticised me on his website). Joe's point 1. Mr Dowling was granted leave at the hearing on 23 March 2018 to have Mr Joe Zidar sit with him at the bar table as a Mackenzie friend. During his oral submissions, Mr Dowling said that his "learned friend", Joe, had raised an issue as to what would be known to a fair-minded observer when everything in these proceedings is suppressed. As submitted by Mr Dawson SC, who appears with Ms Cowden for the plaintiffs, the answer is that a hypothetical bystander is nonetheless assumed to exist. The reference to the bystander is no more than the personification of an objective test: Gaudie v Local Court of New South Wales (2013) 235 A Crim R 98; [2013] NSWSC 1425 at [94], citing Lee v Cha [2008] NSWCA 13 at [43]. The bystander is taken to have knowledge of all the material and objective facts and is assumed to have sufficient knowledge to put the remarks of the judge in their proper context: Gaudie at [97]. 2. In their written submissions, the plaintiffs identified the following as matters the fair-minded observer would "know": 1. that my recusal in the Doe proceedings resulted from "the serious and personal attacks" made on me by Mr Dowling in various publications (I note there was no evidence as to what those publications are and I doubt whether I am aware of them all; I believe I have seen only two); 2. that Mr Dowling requested me to recuse myself in the Doe proceedings before I heard the application determined in my judgment published on 19 December 2017 but subsequently withdrew that objection and that he then renewed the application upon publication of the judgment; 3. that, since the Doe proceedings, there has been no change to the publications made by Mr Dowling attacking me (again, I note there was no evidence on that issue and it is not a matter of which I am aware); 4. the plaintiffs assert that, in these proceedings, Mr Dowling has repeatedly requested me to recuse myself, only withdrawing that application after I made it apparent that I would not transfer the proceedings or make any other order if I acceded to the recusal application. 1. I would not characterise the last matter in quite those terms. As explained above, Mr Dowling initially made applications which the law regards to be irreconcilable, asking me at the same time both to recuse myself and to determine his application to have the proceedings dismissed. Upon my explaining why I could not take that course, he sought an opportunity to obtain legal advice and subsequently indicated that he would not make the recusal application. 2. In any event, there are additional matters which would be taken to be known to the fair-minded observer. As noted in Gaudie at [98], the fair-minded observer is taken to have some knowledge of a judge's training and the content of the judicial oath (although, as submitted by Mr Hamill SC (as his Honour then was) in that case, the fact of the judicial oath cannot be taken to prevent a finding of apprehended bias: see Gaudie at [105]). 3. Separately, in addition to the matters listed by the plaintiff, the following further matters are relevant to the objective test in the present case. First, Mr Dowling has now criticised many judges. As already noted, the publications were not in evidence on the application but it was common ground. The plaintiffs relied on the fact that Mr Dowling has asserted in an email (which I have never seen) that numerous judicial officers are paedophiles or suspected paedophiles and has also raised allegations of judicial bribery. Mr Dowling has stated in a subsequent email that I was named in that previous email as a suspected paedophile. In my assessment, the volume and vehemence of such publications would tend to dilute the impact of anything Mr Dowling has previously said about me; I have become one of a large mob. 4. Separately, it would be relevant in the application of the objective test of the fair-minded observer to have regard to other judgments I have published in related proceedings, including a judgment in which I found in favour of Mr Dowling on a subpoena argument: Seven Network v Dowling [2017] NSWSC 1803; and a judgment in which I found against the present plaintiffs in favour of another person sued by them: Capilano Honey Ltd v Mulvany (No 2) [2017] NSWSC 1237 (the relationship between those proceedings and these is that Mr Dowling is accused of republishing material published by Mr Mulvany). 5. Thirdly, the fair-minded observer would have regard to the circumstances of the exchange in the Doe proceedings which resulted in my recusing myself. The matters raised by Mr Dowling were raised unexpectedly after I had published a judgment after the conclusion of the law term and less than a week before Christmas. There was no formal application made by Mr Dowling who, as already noted, represents himself in the proceedings. The plaintiffs were not called on and no reference was made to the basis for the application or any matters of principle. I published no reasons and made no finding in terms of the test stated in Ebner set out above. 6. In Ebner at [8], the Court accepted that the apprehension of bias principle "admits of the possibility of human frailty" and that "its application is as diverse as human frailty". In my view, an objective assessment would be that I acceded to Mr Dowling's demand both wearily and precipitously. I do not think I would be understood, by an informed observer of that exchange, to have made a considered assessment as to whether there was an apprehension of bias in the proceedings. Election/Waiver 1. The plaintiffs relied on the principles stated in Vakauta at 588 to the effect that, once a party has declined to seek recusal, he is held to his election on the basis that the situation is one in which "the law prevents a party to litigation from taking up two inconsistent positions". The plaintiffs submitted that "the converse ought logically also be true". I do not think that is necessarily the case. The submission overlooks the institutional integrity of the Court. The Court has a duty to discharge the judicial function, subject to any disqualifying conduct on the part of the judge: see Antoun v R (2006) 224 ALR 51; [2006] HCA 2 at [34] to [35]. 2. As I understood the plaintiffs' submissions on this issue, the concern was put in two ways. First, it was submitted, in effect, that the fact of my earlier recusal is determinative on the issue of apprehension of bias and cannot be revisited. In my view, that is wrong as a matter of law. Upon reflection, I have come to the conclusion that I recused myself too readily in the Doe proceedings on 19 December 2017. I do not think I am bound by what happened on that date to recuse myself in all matters involving Mr Dowling; in fact, I have concluded that it would be wrong to do so, my overriding duty being to discharge my judicial function. 3. It might separately have been intended to suggest that the circumstances of the earlier recusal were enough to give rise to an apprehension of bias in these proceedings. If that was the submission, I disagree. As explained above, the fair-minded observer would have regard not only to the matters raise by the plaintiffs but to the whole of the circumstances. Abuse of process 1. Finally, the plaintiffs submitted that I should recuse myself to prevent the defendant from "judge shopping", or at least to preclude the apprehension that he is being permitted to do so. I do not think there is any basis for apprehending that is what Mr Dowling is doing. On the contrary, as he submitted, if every judge he has criticised were to recuse himself or herself, there would be few judges left, at least in the Common Law Division, to hear cases in which he is a party. In my assessment, the greater risk is the threat to the integrity of the Court if judges too readily disqualify themselves on demand by Mr Dowling. If that approach is taken, Mr Dowling would be seen to be in control of the process of the Court, a perception which would indeed undermine its integrity. 2. For those reasons, I was not persuaded by the plaintiffs' submissions that it is either necessary or appropriate for me to recuse myself in these proceedings. ********** Amendments 07 September 2018 - Error of initial of counsel on covershet 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 September 2018