Boland v SAS Trustee Corporation

Legal principles

1. The principles relating to disqualification have most recently been stated by Gleeson JA in Chandrasekaran v Western Sydney Local Health District (t/as Westmead Hospital) [2023] NSWCA 288, a decision given on 1 December 2023. His Honour's reasons were agreed to by Leeming and Adamson JJA. Commencing at [46], his Honour said this: "46. Questions of bias should be addressed first, as the High Court explained in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 (Concrete). That is because the necessary result, if bias is established, is a retrial: Concrete at [2]-[3] (Gummow ACJ), [117] (Kirby and Crennan JJ). 47. The notice of appeal contained complaints of prejudgment (pars 1.63, 1.68, 1.8.1). The appellant did not specifically address this ground in her written submissions. She was asked in this Court whether she was alleging actual or apprehended bias. She answered that she was alleging both. 48. Allegations of actual bias against a judicial officer are serious and should not lightly be made. Nor are they readily made out. An allegation of actual bias must be distinctly made and clearly proved: see the discussion in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]-[74]. An allegation of actual bias in the form of pre-judgment requires that the appellant establish that the trial judge was "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [72] (Gleeson CJ and Gummow J; Hayne J agreeing at [176]). As Gleeson CJ and Gummow J observed at [71], "the question is not whether a decisionmaker's mind is blank; it is whether it is open to persuasion". 49. The test for apprehended 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 the judge is required to decide: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 (Michael Wilson) at [31]. The plurality judgment in Michael Wilson observed at [63], it is necessary for the party asking a judge to disqualify him or herself, having identified the conduct said to give rise to the apprehension of bias through pre-judgment, to articulate the connection between the conduct and the possibility of departure from impartial decision-making with respect to the questions to be decided."
2. His Honour then turned attention to the complaints made by the appellant in the case then in question and continued thus, under the heading "Apprehended bias": "60. The focus of the claim of apprehended bias is not on whether the judge decided the case adversely to one party, but whether there is a reasonable apprehension the judge will not decide the case impartially or without prejudice: Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39, where Mason J explained at 352: 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". (Citations omitted.) 61. Further, as Wheelahan J said in Kazal v Thunder Studios Inc (California) [2023] FCAFC 174 at [260] (Wigney and Abraham JJ agreeing): The fact that a party has been unsuccessful should not, without more, lead the fair-minded lay observer to think that the judge has done other than bring an impartial and unprejudiced mind to bear on the matters in issue: Doggett v Commonwealth Bank of Australia [2019] FCAFC 19 at [11] (Kerr, Davies and Thawley JJ). 62. In this case there are two difficulties with the assertion of apprehended bias. First, the appellant's submissions did not identify what might have led the judge to decide the case other than on its legal or factual merits. Second, assuming that the appellant is alleging prejudgment, the appellant failed to articulate any logical connection between the primary judge's conduct in making rulings on evidence, procedural decisions in the course of the trial and the re-opening application after judgment had been reserved, and the possibility that the judge might depart from impartial decision-making in determining the issues to be decided in the proceedings: Michael Wilson at [67]."

Consideration

1. In the current matter, other than making listing arrangements for the matter, for the Defendant's motion that was entertained by Hatzistergos DCJ, I have not made any decision about this matter, other than to try to get it ready for trial. I have made no rulings on evidence. I have given no direction forestalling any avenue of evidence or argument. The current application is, to my mind, unseemly. Mr Gray relies on an affidavit affirmed by him on 2 December 2023, relating to two matters, this matter and the matter of Christopher Bell (proceedings number 2022/00154738).
2. On 4 December 2023, I disposed of the motion made by the Plaintiff in Christopher Bell's case in a matter that I trust was satisfactory to all parties. I have not been addressed at any length by the Defendant other than to say that the matter is within my hands. Unfortunately, the application relies upon the affidavit of Mr Gray, but he also presented the argument. Mr Gray was not cross-examined. This makes the matter somewhat unseemly.

The first allegations in Mr Gray's affidavit

1. However, there are a number of matters that arise from what is deposed to by Mr Gray in his affidavit. In [22] of his affidavit, Mr Gray said this: "I have found that his Honour's demeanour towards my clients, whilst in Court, has changed since on or about mid 2015 after I caused to be filed an appeal to the Court of Appeal in the matter of Learmont vs Commission of Police, and events that transpired thereafter."
2. Mr Gray's personal view of my approach towards his clients proves nothing; it is his own personal view. In Learmont v Commissioner of Police [2015] NSWDC 136, I rejected his client's claim, and Learmont's appeal to the Court of Appeal against my decision, Learmont v Commissioner of Police [2016] NSWCA 137, was unsuccessful. In [23] of his affidavit, Mr Gray said this: "To the best of my knowledge and belief, the 'Learmont' in relation to whom I filed the appeal in 2015 is the same Learmont referred to in the transcript in Ferguson [referring to the daily transcript of my decision in Ferguson v Commissioner of Police (unpublished, 2023)] by his Honour as 'one of the greatest liars I've ever come across.'" I may well have said that, because I formed a very unfavourable impression of Mr Learmont. Nevertheless, his appeal to the Court of Appeal was unsuccessful. Subsequently, in further proceedings brought by Mr Learmont, I did disqualify myself when Mr Gray drew to my attention the fact that I had found against him in his first case, which I believe was decided in about 2014: see Learmont v SAS Trustee Corporation [2020] NSWDC 595.
3. Mr Learmont's second set of proceedings were heard and determined by Kearns ADCJ on 18 July 2022: Learmont v SAS Trustee Corporation (unpublished, Kearns ADCJ, 18 July 2022). The Defendant successfully appealed: SAS Trustee Corporation v Learmont [2023] NSWCA 272. A number of matters should be observed from what was said in the Court of Appeal in that case. The first judgment was given by Mitchelmore JA. At [21] his Honour said this: "Mr Learmont gave evidence in the District Court, and was cross-examined. The primary judge stated that his approach to Mr Learmont's evidence was necessarily cautious: p 3. His Honour noted that Mr Learmont's case was that he had lied in the past about his psychological fitness and ability to carry out his duties as a police officer, including to the police (in applications to re-join the police force) and to doctors: p 3. Mr Learmont gave inconsistent evidence about why he resigned in 1999, and his evidence was inconsistent and unreliable on the subject of whether he considered that he was in fact psychologically fit and well and able to carry out his duties when he applied to re-join the Police Force: p 3-4. The primary judge did not accept Mr Learmont's evidence 'unless it is non-contentious or has objective or other credible support': p 4-5." Commencing at par [26], his Honour said this: "In mid-1997, Mr Learmont and his partner broke up, putting an end to his plans for a six-month holiday with her. In October 1997, he first saw a doctor, Dr Morice, a psychiatrist, for depressive illness with suicidal thoughts: p 6. Mr Learmont's history to Dr Morice was confined to the breakdown of his relationship with his partner, an earlier breakup, and the death of his father: p 7. Although Mr Learmont gave evidence in the court below that it was not the breakup that caused his depression, the primary judge did not accept that evidence. His Honour described it as 'hardly plausible' that if there were more significant causes of his depression than the breakup, Mr Learmont would not have reported those to Dr Morice: p 7." Later, his Honour said this at par [38]: "In the earlier section of his reasons on Mr Learmont's credibility, the primary judge had noted that Mr Learmont gave inconsistent accounts over time about the reasons for his resignation: p 4. In proceedings relating to a back injury that he sustained in the course of his work as a police officer, Mr Learmont gave evidence in 2014 that his resignation was a combination of his bad back and his conflict with Superintendent Bradshaw: p 14. In the present proceedings, he gave evidence that at the time he resigned in August 1999, he was suffering from symptoms of depression causing incapacity in carrying out his work: p 13. The primary judge did not accept his evidence." With the utmost respect, I clearly am not the only person to have not accepted the evidence of Mr Learmont.
4. In par [24] of his affidavit, Mr Gray said this: "My experience with his Honour post the appeal I caused to be filed in 2015 expressing animus of disbelief [sic] in relation to cases brought by my client's include: A. his exclaiming at the Counsel, whom I had briefed, during submissions in the matter of Miles v SASTC [2016] NSWLR 56 that Counsel's submissions were 'cuckoo land stuff'. The transcript of those comments is annexed and marked 'D' The issue in those proceedings was ultimately determined by the High Court in SAS Trustee Corporation vs Miles [2018] HCA 55."
5. I shall continue reading later the other parts of par [24] of Mr Gray's affidavit. Suffice it to say that I would never refer to "cuckoo land stuff" but to "cloud cuckoo land stuff." Generally, in submissions I adopt the Socratic method. It is a method which I find assists in getting to the heart of the issues in question. My remark may be mirrored in similar remarks, which I believe I made in the hearing of Miles v SAS Trustee Corporation [2016] NSWDC 56, namely that what was being submitted to me by learned counsel for the Plaintiff was "heresy". Of course, "heresy" is a word describing an unorthodox theological view. I use the word to also describe an unorthodox legal view. Having been involved with litigation under the Police Regulation (Superannuation) Act 1906, from shortly after I was called to the bar in 1983, I have some familiarity with the with that Act.
6. What was being put to me in Miles was what I considered to be an unorthodox view of the law, that in determining the quantum of a hurt on duty pension, one can take into account medical conditions which were not caused by a plaintiff's having been hurt on duty. The appeal from Miles to the NSW Court of Appeal in Miles v SAS Trustee Corporation [2017] NSWCA 86 was successful, but the Defendant then appealed to the High Court of Australia, which unanimously allowed the appeal, set aside the decision of the Court of Appeal, and restored the decision which I had originally made.
7. A judge having a view of what the law is can hardly be grounds for disqualification. Indeed, people are generally pointed to the Bench because they have some idea of what the law is. A judge who had no idea of what the law is would not be of much utility because, necessarily, things would proceed extremely slowly, not to mention the litany of incorrect judgments which would pervade the Court system and burden the appellate system.

The second allegations in Mr Gray's affidavit

1. I now return to the further sub paras of [24] of Mr Gray's affidavit: "B. recently referring to one of my administrative errors as 'one of the usual SNAFU's that happens in Mr Grey's [sic] office'. Annexed hereto, and marked 'E' is the transcript of those comments. Whilst I was unaware of what a SNAFU was prior to his Honour mentioning of it, I now understand it to mean 'situation normal, all fucked up'."
2. True it is, that I may have used the word "SNAFU". The word has been in use since the Second World War. I did not refer to one of Mr Gray's "SNAFU's", but a SNAFU that had occurred in his office. Sometimes, clerical errors are made by administrative staff. That happens even in Judges' chambers. I then drew to Mr Gray's attention as to whether the conduct of Mr Hammond, who mentioned the matter of Boland before me on 20 November 2023, could also be described as a "SNAFU", because Mr Gray said that Counsel had exceeded his instructions. Again, I have not heard from Mr Hammond as to whether that be the case or not, and clearly there has been no cross-examination. Again, when one runs a very busy list monthly, one uses shorthand, and sometimes the shorthand may be used in a jocular manner. This does not impute bias or a pre-judgment in respect of Boland.

The third allegations in Mr Gray's affidavit

1. The next sub-paragraph of [24] of Mr Gray's affidavit is this: "C. commenting to Counsel in the matter of Day v STC [sic] that Mr Rossetti, another client I represented, 'come second, or he was about to come second, and he withdrew his claim' in circumstances where, in Rossetti v STC [sic], which was heard by his Honour Judge Neilson, the Plaintiff had not completed giving his evidence, the Plaintiff's case had not closed, no expert evidence had been tendered, and Mr Rossetti withdrew his claim for reasons that are not known to his Honour. Annexed hereto and marked 'F' is an extract from the transcript in Day in which those comments appear."
2. In the trial of Day v SAS Trustee Corporation [2020] NSWDC 381 in which those comments appear, Mr Rossetti's case had been remitted to this Court by the Court of Appeal, and Mr Rossetti was represented by Senior and Junior Counsel, and the Defendant was represented by Mr Watson SC. I recall vividly Mr Watson SC cross-examining Mr Rossetti about surveillance of his activities and of his riding either a surfboard with an ankle strap, or a paddle board with an ankle strap, and the ankle in question being the ankle that was alleged to be the subject of ongoing incapacity by Mr Rossetti. The only rational inference to be drawn from what I saw was that the Plaintiff withdrew his case because the attack upon his credit went to the very heart of an issue before the Court, which was the incapacity allegedly due to his ankle problem.
3. Again, this has no bearing at all upon the current proceedings. Rather, Mr Gray has drawn together a large number of anecdotes which indicate to him that I might be prejudiced against his clients. He specifically disavowed that his application is directed toward actual bias, although when one reads the affidavit as a whole one has the distinct impression that he was alleging actual bias.
4. However, none of the matters referred to in his affidavit refer to any matter that could be referable to Mr Boland. Rather, they allude to Mr Gray's perception that his cases have been unsuccessful before me. Thus far, he has not successfully appealed any of my decisions.
5. There is currently before the Court of Appeal my decision in Wilson v SAS Trustee Corporation (No 4) [2023] NSWDC 224 which I am told may be heard early next year. In par [10] of his affidavit, and subsequently, Mr Gray criticises my dealing with an application for me to disqualify myself in that matter, saying that I applied the wrong test: see par [14] of Mr Gray's affidavit. Whether I did so or not is another question. However, I did not disbelieve his client. Indeed, if one reads my decision, one will see that I increased his pension allowance, albeit that I did not accept that at the time that he was medically discharged he was suffering from an infirmity of mind, namely Post-Traumatic Stress Disorder, because although he may have had symptoms, those symptoms did not amount to an infirmity.
6. I am left with a distinct view that the application currently before me was merely an attempt at forum shopping and that application cannot be acceded to.
7. At par [26] of Mr Gray's affidavit, he states: "I have provided the Plaintiff [Mr Boland] with advice regarding his Honour Judge Neilson's comments as outlined above. The Plaintiffs, Mr Bell and Mr Boland, have each expressed to me real concern that the final determination of their proceedings may not be undertaken fairly in the event that his Honour Judge Neilson were to hear their matters." In other words, it is only because they believe what their solicitor has said that Mr Boland and Mr Bell have formed the view which is deposed to by Mr Gray in his affidavit, and is not deposed to by either of his clients.
8. In respect of Mr Boland's case, there has been no pre-judgment. I have merely dealt with procedural matters in order for the matter to be ready for trial. I have not assessed, nor made any comment on, the merits of this case nor any claims made by the Plaintiff.

Order

1. For those reasons, the application currently before me is refused.
2. I confirm the hearing dates commencing on 4 March 2024. 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: 02 February 2024