HIS HONOUR: This is an application that I "recuse" myself. The use of such terminology is deplorable. The Latin root is the verb, recuso, recusare, recusavi, recusatum. That is a technical term in Roman law. It is used by certain jurists meaning, to make an objection or to demur. It is so used by Cicero, Celsus, Quintilian and Julian. It gives a noun form, recusatio, recusationis, which means either a counter plea or a demurrer. However, the verb could also be used generally, meaning to make an objection or to protest. It is so used by Cicero, by Ovid, by Seneca, by Livy and by Caesar. It can also mean, not to accept or consent, or to decline, to reject, or to oppose. It is not used reflexively and is not used in Latin to mean to disqualify oneself.
According to the second edition of the Oxford English Dictionary published in 1989, the word, recuse, is rare and means, to refuse or to make an objection. There is a form of the word, recusal, but that means an objection to a judge as being prejudiced, but not the action of the judge in disqualifying himself. However, the primary meaning assigned to one form of the word, recuse, was that of being a "recusant" and the associated status of recusancy. A recusant was a person who refused to attend the services of the Church of England as established by Parliament. It applied to all who refused to attend the services of the Church of England but, in particular, members of the Catholic faith. The second edition of the Oxford English Dictionary does not admit the use of the verb "recuse" to mean, the action of a judge in disqualifying himself.
The 5th ed of the Shorter Oxford English Dictionary published in 2002, does give the verb, recuse, a fourth meaning, when used reflexively, of a judge withdrawing from a hearing of a case because of a possible conflict of interest or lack of impartiality. However, it is clear, from the other entries in the Shorter Oxford English Dictionary that that use is United States usage. It does not admit to the usage being either British, Australian, Canadian, New Zealander or South African.
However, the verb, recuse, in English has the same meanings as it does in Latin, to refuse a thing offered, to reject or renounce a person or his authority or to object or to refuse to do something. The use of the word "recuse" being a request of a judge to disqualify himself from the hearing of a case is not consistent with its Latin etymology, is inconsistent with English usage and, although it may be used in the United States of America, it is not part of the Queen's English and its use is to be eschewed.
I take the application to be one that I disqualify myself. I accede to that application. The short reasons for that are these. I heard and determined an application made by the plaintiff on 15 April 2015. The hearing had commenced on 21 October 2014: Learmont v Commissioner of Police [2015] NSWDC 136. At the commencement of the judgment, I said this:
"1. The plaintiff is a former senior constable of police. He was attested as a probationary constable of police on 26 June 1987, and thereby became a contributor to the Police Superannuation Fund, established under the Police Regulation (Superannuation) Act 1906 "the Act". The plaintiff voluntarily resigned his office as a senior constable of police on 12 August 1999. The plaintiff rejoined the NSW Police on 3 April 2005, but by that time, the Police Superannuation Fund had closed, the date of closure being 31 March 1988. The plaintiff's second period of service in the NSW Police is irrelevant to the current proceedings.
2. The plaintiff was ultimately discharged from the NSW Police on 15 April 2012. At the time of his discharge he was paid $295,169.81 on account of post-traumatic stress disorder. The plaintiff, on 27 April 2010, made a claim to the SASTC for the payment of a benefit under s 12D of the Act."
What I dealt with in that judgment was the plaintiff's claim for a gratuity under s 12D of the Police Regulation (Superannuation) Act 1906. The plaintiff was unsuccessful. The plaintiff appealed, unsuccessfully, to the Court of Appeal: Learmont v Commissioner of Police [2016] NSWCA 137. Relevant to the current application is [38] of the judgment of Ward JA with whom Beazley P (as her Excellency then was) and Sackville AJA concurred. Her Honour said this:
"The primary judge recounted the relevant history of Mr Learmont's back condition and its impact on his work and life by reference to reports made by Mr Learmont to various doctors and incidents that had occurred after the date of the relevant domestic violence incident. In the course of so doing, his Honour noted various matters that he considered cast doubt on the reliability of Mr Learmont's evidence. His Honour ultimately concluded that there was little truth in any of the history given by Mr Learmont to Dr Patrick (or to other medical practitioners) or contained in Mr Learmont's application for s 12D benefits; and that the challenge made by the Commissioner to Mr Learmont's accuracy, reliability and honesty had been largely successful. No challenge is made to that finding."
Her Honour's summation is accurate. I certainly made adverse comments on the plaintiff's accuracy, reliability and honesty.
The current proceedings were commenced by a statement of claim that passed under the seal of this Court on 18 January 2019. However, the Court had received the statement of claim on the preceding day. If the statement of claim had passed under the seal of the Court on the day it was received, 17 January 2019, the application made by the statement of claim was filed in time. However, with a filing date of 18 January 2019, the plaintiff's application was out of time. The plaintiff moved the Court to amend the date of filing to 17 January 2019 pursuant to UCPR 4.10. On 11 March 2019, I acceded to the plaintiff's application.
The matter was before me on a further seven occasions, the last being on 24 February 2020 when I set it down for hearing on 7 September next, with an estimate of ten days. The parties knew at the time that I was to be the trial judge. However, last Friday afternoon, as we were motoring back from circuit in Newcastle to Sydney, my Associate received an urgent application from the plaintiff's solicitors that I list the matter for directions. I have listed the matter for directions today, when I am theoretically on annual leave. The application is that which I announced at the commencement of these reasons.
I must accede to the application despite the fact that it is made so tardily, when it ought to have been known to the plaintiff's lawyers, that I had heard and determined the plaintiff's first case and made adverse findings against him. After all, those currently appearing for the plaintiff appeared for him in the Court of Appeal in March 2016 and were the recipients of the judgment delivered by the Court of Appeal on 22 June 2016.
No satisfactory explanation has been given to me for the delay in making this belated application but it appears that it was overlooked by the plaintiff's solicitor until recently he commenced to prepare the matter for hearing. However, I can understand that because my involvement with Mr Learmont, in 2015, escaped my attention when the matter came before me on 11 March 2019 and subsequently. It was only after I reread my judgment of the 15 April 2015 that I saw the difficulty which is now being discussed.
The plaintiff's current application is for an order certifying that the plaintiff was incapable from an infirmity of mind, namely a depressive illness, of discharging the duties of his office at the date of his resignation in August 1999 or, in the alternative, on or about 15 March 2012. It necessarily involves questions of credit, in particular, when one realises that the 14th plea raised by the defendant's amended defence, filed on 29 March 2019, is this:
"The defendant says that the plaintiff waived his rights or is estopped by his conduct in pursuing his claim from 3 April 2005.
Particulars of Estoppel:
(a) Making representation to the NSW Police Force, in a letter dated 23 November 2000, that he was fit, both mentally and physically to rejoin and since recovering from his father's death and the leaving of his de facto partner, he had not had any further bouts of depression.
(b) Rejoining the NSW Police Force on 3 April 2005 and delaying his s 10B(2) application in circumstances where, but for his delay, the defendant could have relied upon s 16 of the Act.
(c) By resigning from the NSW Police Force on 13 August 1999 and choosing not to claim a hurt on duty medical discharge pursuant to s 10B(1) and not seeing a certification pursuant to s 10B(2) between 13 August 1999 and 3 April 2005, the plaintiff has waived his rights to claim a hurt on duty pension pursuant to s 10 of the Act."
Clearly, questions of credit will loom large and I have already made certain findings in that regard. I must, in the circumstances, disqualify myself.
Having said that, it now appears that, in essence, the plaintiff is not ready. The plaintiff is currently investigating an allegation that he may have some form of traumatic brain damage resulting from various events that occurred to him whilst he was in the NSW Police and that that may have some bearing on his psychiatric state. The plaintiff has currently had or is shortly to undergo MRI scanning of his brain and reports are being awaited from a psychiatrist. If the plaintiff obtains medical evidence to suggest that he has organic brain damage, it is likely that such will be added to the current application and the defendant will require neuropsychological testing and further medical examinations and that would inevitably delay the proceedings for at least six months. In any event, I am told that no judge is available to deal with a ten day matter until 15 July 2021.
In those circumstances, I disqualify myself from the hearing of the current proceedings. I vacate the hearing dates fixed, commencing on 7 September 2020. I place the matter in the police call over on 7 September 2020 for further directions. The defendant is not liable for the costs of today or for any costs thrown away by the adjournment in any event.
[2]
Amendments
08 October 2020 - Amend labeling error in coversheet.
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Decision last updated: 08 October 2020