[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.]
[2]
Judgment
HER HONOUR: Christopher Bezer seeks leave to appeal against the decision of a judge of the District Court to continue to hear evidence in proceedings in that Court from today despite reserving her decision on an application for her to disqualify herself on the grounds of apprehended bias. The determination to continue to hear evidence was made on 24 August 2017. The applicant brought an urgent application to stay that course on 25 August 2017. The application came before me acting as an additional judge of appeal pursuant to a determination of the Chief Justice dated 25 August 2017. I determined that the proceedings in the court below should be stayed pending determination of the appeal (or publication of the reserved decision, in which event the appeal will be moot). These are my reasons for reaching that conclusion.
The proceedings in the District Court are for damages for personal injury. The hearing of the proceedings commenced on 10 July 2017 and continued for a period of two weeks, at which point the proceedings had to be adjourned part- heard, having exceeded the original estimate for hearing.
Bezer v Bassan [2017] NSWCA 214 | Case summary | Zoe
During that two-week period a Dr Harrison was called to give evidence in the plaintiff's case. He gave his evidence on 19 July 2017. On 21 July 2017, Dr Harrison lodged a complaint with the Judicial Commission asserting that the judge had bullied him. The doctor expressed concern that the bullying was such that he "might have ended up perjuring [himself]" as he "just wanted to get out of the witness box".
The judge received notice of the complaint on 26 July 2017 and immediately relisted the matter for 28 July 2017 to inform the parties of the doctor's complaint.
On 10 August 2017, the plaintiff filed a notice of motion requesting the judge to recuse herself from hearing the matter. The notice of motion was made returnable on 21 August 2017. In the meantime, the plaintiff sought to obtain access to the audio recording of the proceedings for the day on which Dr Harrison gave evidence. That request required the authority of the trial judge which, so I was informed, initially was not forthcoming. The request was renewed at the return of the notice of motion on 21 August 2017. At that time, the judge granted her authority to the court reporting service to give access to the audio recording to the parties. At the same time, dates were scheduled for the resumption of the part-heard proceedings.
The recusal motion was heard on 24 August 2017. At the conclusion of argument, the judge said:
I think that probably leaves us, in part, in a very unsatisfactory position, because I'll need to think about it and I'll need to reserve. But I think what we should do is bat on, because we're where we are in the interim.
Her Honour proceeded to discuss the fixing of a timetable for the remaining evidence.
Senior counsel for the plaintiff submitted that her Honour should first determine the recusal application, indicating that, if the plaintiff failed in the application, he anticipated receiving instructions to seek leave to appeal. He submitted that, in that circumstance, the trial ought stop and, on that basis, submitted that the parties needed a decision before the resumption of evidence. The proceedings were stood down until 2.00pm at which point her Honour determined to resume the hearing the following Monday, 28 August 2017 (today), over the plaintiff's objection.
As already noted, the applicant filed his summons seeking leave to appeal against that determination on 25 August 2017 and the proceedings were listed before me to hear an urgent application for a stay.
Mr Del Monte, who appears for the applicant, indicated that the application was prompted by a consideration of the principles stated in the decision of the High Court in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48. In that case, the Court noted (at [76] per Gummow A-CJ, Hayne, Crennan and Bell JJ) that it is well established that a party to civil proceedings may waive an objection to a judge who would otherwise be disqualified on the ground of actual bias or reasonable apprehension of bias. The Court said:
If a party to civil proceedings, or the legal representative of that party, knows of the circumstances that give rise to the disqualification but acquiesces in the proceedings by not taking objection, it will likely be held that the party has waived the objection.
The judgment holds that, whereas in general any interlocutory order which affects the final result can be challenged in an appeal against final judgment, a judge's refusal of an application that the judge not continue to try a case on the grounds of apprehended bias may be in a different position. The Court said at [79]:
In most cases, a judge's refusal of an application that the judge not try, or continue to try, a case on account of reasonable apprehension of bias will constitute a final determination by the judge that the facts and circumstances relied on by the applicant do not establish the relevant apprehension. In such a case, it may be that an applicant who does not seek to challenge the refusal by seeking leave to appeal should be held to have given up the point.
In this case, if the respondents were right in asserting that there was a reasonable apprehension of bias, the whole of the trial with its attendant expense and use of court time would be wasted. Of course it must be recognised that the respondents in this case had no right to appeal against the refusal of Einstein J to recuse himself. But the respondents did have a right to seek leave to appeal.
The applicant apprehended that, if he did not bring the present application, he may be taken to have waived his objection to the trial judge proceeding to hear the matter.
Mr Nesbeth, who appears for the respondent, submitted that the decision in Michael Wilson & Partners is distinguishable since in that case the recusal application had been refused whereas in the present case her Honour has not yet determined the application. In substance, however, her Honour is proceeding as if the application either had not been made or is to be refused. As explained by the High Court in Michael Wilson & Partners, it must be accepted that, if the applicant is right in asserting the existence of a reasonable apprehension of bias (which has not yet been determined), the whole of the expense and use of Court time expended in hearing the matter will have been wasted.
More fundamentally, where there exists a basis on which a judicial officer should recuse himself or herself, that judicial officer lacks authority to hear the case. I accept that issue has not yet been determined in the present case, but the fact of the application having been made and heard has opened a question as to the judge's authority to determine the plaintiff's cause. It is clear from the judge's remarks when she reserved her decision (set out above) and other parts of the transcript that her Honour did not consider the application to be flippant; if that were the case, her Honour would presumably have dismissed it immediately rather than reserving her decision. That is not to pre-empt the determination of the application but only to observe that her Honour was not minded to dismiss it out of hand.
The Court would ordinarily be reluctant to stay proceedings to allow an application for leave to appeal against an interlocutory order to be heard where the effect of the stay would be to delay the hearing of the proceedings below. But in the case of an objection to a judicial officer's authority to hear the proceedings, the position is different.
In my respectful opinion, there is a powerful basis in the circumstances placed before me for contending that the evidence should not proceed until the application has been determined.
For those reasons, I was persuaded that the hearing of the proceedings should be stayed pending determination of the appeal (or else determination of the application on which her Honour is reserved). I am mindful of the fact that this determination has the effect of granting the substantive relief sought in the application for leave to appeal. I was persuaded that the application for leave to appeal has sufficient strength to warrant taking that course.
[3]
Amendments
05 September 2017 - Typographical error on coversheet
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Decision last updated: 05 September 2017