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[2014] NSWLEC 7
Land and Environment Court (NSW)
2014-02-04
Pepper J, Brian Preston J
Original judgment source is linked above.
Mrs Vorhauer Applies for the Judge to Recuse Herself on the Grounds of Bias 1At the commencement of civil enforcement proceedings in Armidale, the respondent in the proceedings, Mrs Florence Vorhauer, made an application that I recuse myself from hearing the proceedings on the grounds of bias, both actual and apprehended. No prior notice was given to the Court or the applicant, Armidale Dumaresq Council ("the council"), of the application. The application was opposed by the council. 2The application was dismissed upon the delivery of a brief ex tempore judgment due to the necessity of completing the hearing in Armidale within the allocated time of one day. At the conclusion of the delivery of my truncated reasons I indicated that I would publish a more fulsome decision setting out my reasons.
Bias Allegedly Occasioned By Reason of a Prior Association Between the Judge and Mrs Vorhauer 3The gravamen of what Mrs Vorhauer claims might lead me to decide the civil enforcement proceeding other than on its legal and factual merits is my appearance as counsel for the Attorney General of New South Wales, intervening in a matter in the New South Wales Court of Criminal Appeal in R v Vorhauer [2002] NSWCCA 483. The intervention was occasioned by Mrs Vorhauer raising various constitutional law arguments in her appeals from various interlocutory decisions or orders of the District Court. Ultimately the Court of Criminal Appeal rejected Mrs Vorhauer's submissions and refused to grant leave to appeal. The subject-matter of those proceedings is wholly unrelated to the subject-matter of the present proceedings. 4Mrs Vorhauer claims that her submissions in the Court of Criminal Appeal proceedings, mirror the arguments she seeks to put before the Court in defence of the civil enforcement proceedings brought by the council. A reading of that decision and Mrs Vorhauer's written submissions filed in the current case indicates that there is some, but not universal, overlap. Hence Mrs Vorhauer submits that my prior association with her in the earlier and unrelated matter gives rise to both actual and apprehended bias. 5Specifically, Mrs Vorhauer claims that I have, or I am likely to have, prejudged the constitutional issues that she will rely upon in the present proceedings. She submits that many of the issues raised by her in this matter were also raised by her in the hearing before the Court of Criminal Appeal and because I did not agree with or accept her constitutional arguments, as reflected in the submissions I made to the Court, it follows that I will be similarly opposed to any constitutional arguments proffered by her in these proceedings. 6Mrs Vorhauer relied on two letters in support of her application. First, a letter dated 29 January 2014 addressed to "Chief Justice, The Hon, T F Bathurst, Supreme Court of NSW", and second, a letter dated 30 January 2014 to "Chief Judge The Hon, Justice Brian Preston" at the Land and Environment Court of New South Wales. The letters were in similar terms with similar attachments. Essentially the letters and attached material complained about the unjust and treasonable nature of the present proceedings and the unlawful conduct of the council. In my view, none of the material is relevant to her claim of bias. They are completely separate issues. 7The council submitted that the application should be dismissed in its entirety because the constitutional issues raised by Mrs Vorhauer in these proceedings had already been determined to finality by Biscoe J in related proceedings (Armidale Dumaresq Council v Vorhauer [2012] NSWLEC 154, the orders of which are the subject-matter of the present proceedings), which could not be traversed again by Mrs Vorhauer. 8I do not agree. To the extent that Mrs Vorhauer seeks to raise the same constitutional issues as a defence to the orders the council now seeks in the present application, she is entitled to do so. The present proceedings raise allied but nevertheless different issues and, at this stage at least, that is to say, prior to having heard from the parties, it is possible that the constitutional arguments presented before Biscoe J in Armidale Dumaresq Council v Vorhauer have application to this case. Whether she is successful or not will ultimately be a determination for the Court after careful consideration of the factual and legal merits of the matter. It is this process of consideration that is at issue in the bias application. Any prior determination of the merits of the constitutional questions that Mrs Vorhauer seeks to presently reply upon has no bearing whatsoever on whether or not I will consider those questions with an impartial and unprejudiced mind.
Mrs Vorhauer Has Not Demonstrated Any Actual Bias 9The question for determination is whether there is bias in fact. In my opinion, there is not. First, Mrs Vorhauer's allegation of actual bias also misconceives the role and function of counsel, who acts on instructions. No correlation can be drawn between the submissions put to a Court by a barrister during the course of a hearing and the views personally held by that individual on those issues. 10Second, not only did I not recall any of the constitutional issues at issue in R v Vorhauer - which is unsurprising given the lengthy effluxion of time - I did not recall the Court's reasons for rejecting them. My only recollection was that Mrs Vorhauer had been unsuccessful, and moreover, that the genesis of her applications for leave to appeal in the Court of Criminal Appeal was the result of criminal charges brought against her occasioned by the execution by council officers and the police of an earlier order made by Sheahan J that Mrs Vorhauer remove an excessive number of chickens from a property owned by her in Tamworth. 11In these circumstances, I have not, nor could it be said that I have, predetermined the merit of the constitutional arguments that Mrs Vorhauer may seek to agitate in these proceedings.
Mrs Vorhauer Has Not Demonstrated Any Apprehended Bias 12The now well settled test for establishing an apprehension of bias is 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 that he or she is required to decide (Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] and applied in Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [31], Barakat v Goritsas (No 2) [2012] NSWCA 36 at [7] and Duncan v Ipp [2013] NSWCA 189 at [62]). 13In Ebner it was held that the test required the satisfaction of two steps. First, an identification of what it is said might lead a judge to decide a case other than on its legal and factual merits. And second, an articulation of the logical connection between the first matter and the feared deviation from the course of deciding the case on its merits (at [8]). 14Both the identification of the basis of the apprehended bias claim and the articulation of the requisite nexus between that basis and the feared impartiality are described above. 15Having regard to the facts forming the basis of the application for bias relied upon by Mrs Vorhauer, any suggestion of apprehended bias must be rejected. In addition to the considerable passage of time between the proceedings in 2002 and the present hearing, there is the fact that the two sets of proceedings are totally unrelated, and in addition, the fact that apart from the proceedings in 2002, I have never, other than for the purposes of this matter, had any dealings with Mrs Vorhauer. 16In Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272 Priestley JA set out Mason J's statement in Re JRL; Ex parte CJL [1986] HCA 36; (1986) 161 CLR 342 (at 352) (at 275 - 276, cited in Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43 at [18]): It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 258-263 and Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-294 has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be 'firmly established' ... Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. 17The observations are apposite to the present application. 18The fact that a judge has had an association with a litigant by reason of having acted for or against that litigant either as a solicitor or as counsel acting in their ordinary capacity as that individual's legal representative does not automatically give rise to an apprehension of bias. The fair minded observer may be assumed to understand the role of a barrister in the context of the Australian judicial system and understand that a trial judge's earlier appearance in an unrelated case as a legal representative either for or against a party, does not mean that the trial judge is later incapable of bringing an impartial and unprejudiced mind to the resolution of the issues in proceedings in which that party subsequently appears. Were it otherwise, there would be many judges of this and other courts, who by reason of their prior practice as a barrister, would find themselves somewhat idle. 19For these reasons I am not persuaded that my prior interaction with Mrs Vorhauer as a result of my involvement in R v Vorhauer might give rise in the mind of the fair minded lay observer a reasonable apprehension that I might not decide the present proceedings on its merits, legal or factual. 20The application must therefore be dismissed.
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: 06 February 2014
Armidale Dumaresq Council
Vorhauer
(2000) 205 CLR 337
(2000) 201 CLR 488
(2011) 244 CLR 427
(1986) 6 NSWLR 272
(1986) 161 CLR 342
(1976) 136 CLR 248
(1983) 151 CLR 288
[2011] HCA 48
[2000] HCA 63