Bowers v Judicial Commission of New South Wales

Factual background

1. Mr Bowers is a qualified solicitor. Upon the death of his mother in early 2018 he brought a claim under the Succession Act 2006 (NSW) for a family provision order from her estate. The defendant in those proceedings was his sister who was one of the two executors of that estate. Mr Bowers was legally represented in those proceedings until shortly before judgment was delivered, from which time he acted for himself.
2. The proceedings were heard before Hallen J on 20, 21 and 27 November 2019. Judgment was delivered on 20 February 2020: Bowers v Bowers [2020] NSWSC 109.
3. On 10 December 2020, Mr Bowers filed a summons commencing separate proceedings against his sister in her capacity as executor. He sought the following orders: "1. An order that Sara Louise Bowers, as executrix of the estate of the late Bethia Jocelyn Bowers (date of death 12 January 2018) indicate whether she intends to commemorate the life of the deceased, and if so, that she does so forthwith. 2. An order that Sara Louise Bowers deliver up to the Plaintiff the crests and the Easter Show artwork depicting the Plaintiff particularised in the witness statement of James Richard Bowers sworn in support of this Summons. 3. That this Summons be listed in the Expedition List for directions owing to the nature of the claim. 4. That the Defendant pay the Plaintiff's costs."
4. On 1 February 2021, the summons came on for directions before Sackar J in the expedited hearings list. Mr Bowers appeared by way of telephone and his sister appeared in court. Both parties were self-represented.
5. The five-page transcript before Sackar J that day records that Mr Bowers stated that he wanted a decision made "as [to] the commemoration of [his] mother's death." His Honour queried whether he would have any jurisdiction to make such orders given that the plaintiff's mother had died some years ago and her ashes had already been scattered.
6. Mr Bowers then stated that he sought the "delivery of the personal chattels" which his Honour confirmed were crests from Oxford University and a caricature of Mr Bowers drawn at the Easter Show "some years ago".
7. In response, Ms Bowers indicated that she had searched her late mother's house thoroughly over a number of months and had not been able to locate these items. She had written to Mr Bowers informing him of that. She explained that Mr Bowers was living in London at that time and she had arranged for other items from their mother's house to be hand-delivered to him at his home in London. She noted that Mr Bowers actually responded to one of those letters saying that he may have given the crests to his children. Ms Bowers went on to state that she had also spoken to Mr Bowers' ex-wife who advised her that the crests and charcoal drawings had been in their former matrimonial home in Middle Harbour (where she had lived with Mr Bowers prior to his move to London).
8. The transcript then records that Sackar J attempted to ask Mr Bowers to respond to the matters raised by his sister, but Mr Bowers spoke over and interrupted his Honour. After Mr Bowers stopped talking and listened to his Honour's question, he described the account given by his sister as "[a]bsolute rubbish" to which Sackar J responded as follows: "I see. All right. Well, now, Mr Bowers, the reality is that I've got grave reservations about any jurisdiction that I have in relation to commemoration point. And, forgive me for asking, there some - I should have seen it on your note, you're living presently at Lindfield, are you? PLAINTIFF: Yes."
9. His Honour then proceeded to set a date for the filing of affidavit evidence. The brief proceedings finished with the following exchange: "HIS HONOUR: All right. Mr Bowers, thank you very much for your attendance. Ms Bowers, thank you very much for yours. PLAINTIFF: As the Court pleases. HIS HONOUR: I'll now adjourn the proceedings. Thank you."
10. On 5 February 2021, Mr Bowers made an application that Sackar J recuse himself due to bias. On the same day he signed a complaint to the Commission about the conduct of Sackar J at the directions hearing. That complaint was stated in the following terms: "1. On 1 February, 2021, during a hearing, the judge [Justice Sackar] asked me to confirm my address. In support of these allegations I submit the attached Details of Complaint…"
11. Ms Maltabarow deposed that she had been informed by the Acting Chief Executive of the Judicial Commission that no "Details of Complaint" document was in fact attached to the complaint.
12. On 11 February 2021, Mr Bowers filed further written submissions seeking that Sackar J recuse himself due to bias. The submissions raised several issues including allegations that his Honour had pre-judged the case, that his Honour had constantly interrupted him and that he had refused to provide a CD with a recording of the proceedings on 1 February 2021. Mr Bowers made the following submission concerning Sackar J's question about his address: "I gave an address for service in the summons filed 14 December 2020. For no stated reason, your Honour asked me to confirm my address at the hearing on 1 February 2021, i.e. six (6) weeks after the filing of the summons. To me, that was out of left field - it had no relevance to the case. There is no point in me speculating why you asked that question, but there is definitely an innuendo there - you are implying that I move frequently, eg no fixed abode. Or you may have been fishing for personal information. I literally do not know. If my address for service had changed since the filing of the summons, I had a legal obligation to inform the Court under Rules 4.5 and 4.6 UCPR - form 76. I have been a solicitor since 1986, and I do not take too kindly to this gratuitous innuendo, or fishing, for my personal information. So, yes, I have been gratuitously denigrated and I do not want that judge hearing my case."
13. Sackar J heard Mr Bowers' application for recusal on 11 February 2021. No complaint is made about anything said on that date so the transcript was not before me. His Honour dismissed the application: James Bowers v Sara Bowers [2021] NSWSC 72. Despite this, his Honour stated the following at [12]: "However so that this matter is neither delayed nor unduly side tracked, and in the interests of both parties, the matter will still proceed on 1 March as directed but before another Judge of the Division."
14. The matter came before Stevenson J on 1 March 2021 and the proceedings were ultimately discontinued by Mr Bowers on 16 April 2021.
15. On 9 March 2021, the Commission informed Mr Bowers that his complaint about Sackar J had been dismissed pursuant to subs 20(1)(c) and (h) of the Judicial Officers Act 1986 (NSW). The Commission noted that it had reviewed the transcript of the proceedings and Mr Bowers' submissions. The Commission found that: "… the Commission is satisfied that there was no conduct on the part of his Honour which would amount to judicial misconduct. The Commission also noted that no mention was made by his Honour on the record of your street address, merely the suburb in which you resided. In the Commission's opinion his Honour's question as to the suburb where you were currently living was entirely inoffensive and without any underlying motive. Having regard to these findings, the Commission is required to dismiss your complaint under section 20(1)(c) and 20(1)(h) of the Judicial Officers Act."
16. On 25 March 2021, Mr Bowers emailed the Commission in relation to his complaint against Sackar J reiterating the complaint as follows: "I am going to give you another chance re Sackar J - I am only repeating myself here: 1 For no good reason at the hearing on 1 February 2021 Sackar J asked me to confirm my Lindfield address 6 weeks after I had filed a summons stating my address and in circumstances where I had a legal obligation under the UCPR to inform the court of any change of address. 2 This was a breach of my privacy for no good reason 3 There was an innuendo in his question that I was of no fixed abode - this was gratuitous denigration - see The High Court of Australia in Vakauta v Kelly 1989 167 CLR 568 where Hunt J had described witnesses as 'the unholy trinity'. The HCA held This was bias. 4 When I say no good reason I mean my place of abode had absolutely no relevance whatsoever to the case. 5. This was an obvious sleight [sic]. 5 For no good reason Sackar J put unreasonable conditions on me obtaining a copy of the sound recording CD of the hearing on 1 February 2021 and to this day I do not have a copy of the CD - so we have a superior court of record refusing to supply a CD or the record to a party to the litigation. In my book that is a straight point of appeal and I reserve all rights in that regard and have informed the court of that. 6 Sackar J continually interrupted me and fringed [sic] that I was interrupting him. 7 It definitely was offensive and it definitely was a breach of my privacy for no good reason. 8 I then applied to Sackar J to remove himself for bias for gratuitous denigration as per Vakauta v Kelly' and he stepped aside from hearing the case and Stevenson J is now going to hear the case."
17. When Mr Bowers filed his amended summons in this Court seeking judicial review of the Commission's decision, he relied on his "email dated 26 March 2021" in his amended summons seeking judicial review. I will proceed on the basis that this is a reference to the email of 25 March 2021 as no email of 26 March 2021 was ever provided.

The Judicial Officers Act

1. The Commission is constituted as a corporation and exercises the functions conferred or imposed on it under the Judicial Officers Act: s 5(1)-(2). The principal functions of the Commission relate to complaints against judicial officers. Under s 15(1) of the Judicial Officers Act any person may complain to the Commission about a matter that concerns or may concern the ability or behaviour of a judicial officer.
2. Section 15(2) of the Judicial Officers Act deals with the circumstances in which a complaint shall be dealt with other than by summary dismissal: 15 Complaints … (2) The Commission shall not deal with a complaint (otherwise than to summarily dismiss it under section 20) unless it appears to the Commission that - (a) the matter, if substantiated, could justify parliamentary consideration of the removal of the judicial officer from office, or (b) although the matter, if substantiated, might not justify parliamentary consideration of the removal of the judicial officer from office, the matter warrants further examination on the ground that the matter may affect or may have affected the performance of judicial or official duties by the officer.
3. Section 20 deals with the circumstances in which a complaint will be summarily dismissed as follows: 20 Summary dismissal of complaints (1) The Commission shall summarily dismiss the complaint if it is of the opinion that, whether or not it appears to be substantiated - … (c) the subject-matter of the complaint is trivial, [or] … (h) having regard to all the circumstances of the case, further consideration of the complaint would be or is unnecessary or unjustifiable. (2) In deciding whether or not to summarily dismiss a complaint, the Commission may have regard to such matters as it thinks fit.
4. Section 21 provides that if a complaint is not summarily dismissed it must be referred to the Conduct Division or to the relevant head of jurisdiction.

Plaintiff's submissions

1. Mr Bowers submitted that there was a "clear implication" in Sackar J's statement that Mr Bowers was of no fixed abode and that his Honour had "seriously defamed" him by this implication. Mr Bowers submitted that he had been asked to confirm his address as though he was "a criminal in a charge court". He also submitted that the question was a breach of privacy and amounted to serious denigration.
2. When asked by me how Sackar J's question implied that he was of no fixed abode, Mr Bowers responded as follows: "Look, I don't know when you were admitted. I was admitted in 1986 and I have been running around the civil courts ever since. I have never been asked by a judge whether I was living in a particular suburb at the same time as when I filed a claim - never."
3. Mr Bowers placed reliance on Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 in which a trial judge in the course of a hearing referred to certain expert medical witnesses for the Government Insurance Office as the "unholy trinity" of "doctors who think you can do a full week's work without any arms or legs". Those comments, combined with observations in his Honour's judgment to similar effect, were held to constitute apprehended bias (at 573-4 per Brennan, Deane and Gaudron JJ). Mr Bowers submitted that Sackar J's conduct was equivalent to the "gratuitous denigration" in Vakauta v Kelly.
4. Mr Bowers then read from an article in the Times newspaper of London on 22 April 2021 in which the Master of the Rolls stated that harassment or bullying by senior members of the judiciary was a serious matter.
5. Mr Bowers then read the following extract from the Hon James Thomas, Judicial Ethics in Australia (3rd ed, LexisNexis Butterworths) at 4.11-4.12: "Complaints of this kind are not as rare as we would like to think. The majority of complaints made to the New South Wales Judicial Commission are that judicial officers have unfairly prevented the losing party from properly putting his or her case, favouring the winning party, or displaying hostility and discourtesy towards the losing party. Reported instances of serious courtroom bullying in Australia are fairly rare, although the two New South Wales District Court cases mentioned in the previous section also reveal elements of bullying. …"
6. It is to be noted that although Mr Bowers stopped reading at that point, the full passage goes on to state the following: "But how do you deal with rude litigants? Some are quite obsessive and make outrageous allegations, often including that the judge who refuses to accept their claims is corrupt. One of my colleagues was accused of being a Nazi Jew. … 'the more extravagant the allegation, the more ludicrous they sound'. … There is also a growing expectation that judges should take a more interventionist role than was formerly the case. Judges now go to considerable lengths to ensure that time is not wasted and that the cost of litigation is minimised. This improves community access to justice, and the judicial role in case management is now accepted. So the conduct that is condemned in this discussion is not the ordinary cut and thrust of courtroom debate or even of occasional duelling when passions rise. Politeness is a necessary ingredient of the role, but censure should be reserved only for genuine bullying. That usually involves abuse of the judge's privileged position, the levelling of gratuitous insults, the gratification of an unhealthy personality that feeds upon the discomfort of others, or sometimes plain hooliganism."
7. Mr Bowers submitted that Sackar J had engaged in "genuine bullying" including levelling gratuitous insults at the plaintiff. He also submitted that Sackar J's treatment of him was akin to the sexual harassment of female staff by a former High Court judge and that the same level of censure was required for the present conduct.
8. In relation to subs (c) and the Commission's finding that the complaint was "trivial", Mr Bowers submitted that: "… triviality is in the eye of the beholder. It is alright for someone to tell me that Sackar J, calling me no fixed abode, is trivial. How would he feel if Sackar J said that to him?"
9. As to the Commission's finding under subs (h) that further consideration was unnecessary or unjustifiable in all the circumstances, Mr Bowers submitted that the Commission was not entitled to rely on that subsection without providing particulars of the relevant circumstances.

Defendant's submissions

1. The written and oral submissions on behalf of the Commission focussed on the statutory role of the Commission in order to establish why the amended summons should be summarily dismissed. I have adopted some of those submissions in my consideration below.

Consideration

1. The Commission seeks that these proceedings be summarily dismissed under r 13.4 of the UCPR. That rule is headed "Frivolous and vexatious proceedings" and relevantly provides that: (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings - (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1).
2. The Commission relied on subr (1)(b) in relation to Mr Bowers' summons but it seems to me that subr (a) is equally applicable.
3. The principles in relation to summary dismissal are well established. Before a court would dismiss proceedings summarily, it must be satisfied that the proceedings are so obviously untenable that they cannot possibly succeed, manifestly groundless, or so manifestly faulty, such as not to admit of argument: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at 128-129). In Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1 at 91, Dixon J observed that before summary intervention can be justified the case must be a very clear one and there must be no real question of fact or law to be determined.
4. In O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71, Macfarlan JA, with whom Beazley P agreed, observed at [3] that: "The High Court decision in Spencer v The Commonwealth [2010] HCA 28; 241 CLR 118 was concerned with s 31A(2) of the Federal Court Act 1976 (Cth) but the following principles stated in it are of general application: (a) On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded (at [23]). (b) The critical question can be expressed as whether there is more than a "fanciful" prospect of success (at [25]) per French CJ and Gummow J) or whether the outcome is so certain that it would be an abuse of the process of the Court to allow the action to go forward (at [54] in the judgment of the plurality). Demonstration of the outcome of the litigation is required, not an assessment of the prospect of its success (ibid). (c) Powers to summarily terminate proceedings must be exercised with exceptional caution (ibid at [55]; see also French CJ and Gummow J at [24])."
5. The purposes of r 13.4 include saving a defendant from the cost and delay of defending clearly untenable proceedings and protecting the interests of the public in "not having scarce judicial resources wasted in dealing with frivolous applications": Ugur v Attorney General for New South Wales [2019] NSWCA 86 at [70] per White JA, Meagher and Brereton JJA agreeing.
6. These are proceedings for judicial review. They are not a review of the merits of the decision of the Commission. The question for this Court is whether Mr Bowers' claim in this Court is so untenable that it cannot succeed.
7. The amended summons did not strictly comply with r 59.4(c) of the UCPR which provides that the summons must state with specificity the grounds on which the relief is sought. It did, however, describe the decision as "perverse" and the hearing proceeded on the basis that the alleged jurisdictional error was unreasonableness. Mr Bowers relied upon the following passage in Taveli v Minister for Immigration, Local Government & Ethnic Affairs (1989) 86 ALR 435 at 453 in which Wilcox J observed: "In numerous cases the comment has been made that unreasonableness, in this sense, is a difficult ground to establish. Probably the ground has its most frequent application in cases in which the challenger can demonstrate an illogicality in, or misapplication of, the reasoning adopted by the decision-maker; so that the factual result is perverse, by the decision-maker's own criteria. Parramatta City Council v Pestell (1972) 128 CLR 305 and Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; 65 ALR 549 constitute examples of this type of case. There may be cases - although I think that they are likely to be rare - in which all of the factors germane to a particular decision point in one direction. If such a case arose, it would seem proper to brand as unreasonable a decision to the contrary effect. But ordinarily there will be factors pointing in each direction. Where that is the situation, the weight of those factors is a matter for evaluation by the decision-maker."
8. As Hayne, Kiefel and Bell JJ observed more recently in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [76], unreasonableness may be demonstrated where a decision lacks an evident and intelligible justification. Their Honours earlier observed at [66] that a decision-maker has an area of free discretion within the bounds of legal reasonableness.
9. The complaint could also be understood as being a claim of irrationality given that both ss 15 and 20 of the Judicial Officers Act require the Commission to be satisfied of certain matters before a complaint is summarily dismissed. A statutory requirement for a decision-maker be "satisfied" about a matter before the decision-making power arises is a jurisdictional fact. Section 15(2) provides that the Commission shall not deal with a complaint, other than by summary dismissal, "unless it appears to the Commission" that subs (a) or (b) are satisfied. Similarly, s 20(1) provides that the Commission shall summarily dismiss the complaint "if it is of the opinion that" one or more of subs (a) to (h) exist.
10. In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 the High Court held that an administrative decision could be reviewed on the basis that no rational or logical decision-maker could have arrived at the decision on the same evidence. As Crennan and Bell JJ observed at [130]: "In the context of the Tribunal's decision here, 'illogicality' or 'irrationality' sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is 'clearly unjust' or 'arbitrary' or 'capricious' or 'unreasonable' in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case." (emphasis added)
11. Mr Bowers would need to establish that no rational or logical decision-maker could have arrived at the same decision on the same evidence. Even having regard to the high level of certainty required in summary dismissal proceedings, I am satisfied that Mr Bowers' claim is so obviously untenable that it cannot succeed for the following reasons.
12. The decision of the Commission falls to be considered in the context of the Commission's statutory role. Both ss 15 and 20 use the word "shall", which imposes a mandatory obligation on the Commission once the relevant opinion is formed: s 9(2), Interpretation Act 1987 (NSW). The relevant statutory context means that even if there was any basis for Mr Bowers' complaint, the Commission could not proceed with it unless it could justify parliamentary consideration of the removal of the judicial officer or warrant further examination on the grounds that it could affect his Honour's performance of his duties, whether judicial or official. I am satisfied that the nature of Mr Bowers' complaint required the Commission to summarily dismiss the complaint as it was incapable of satisfying either statutory criteria.
13. As for s 20(1)(c) of the Judicial Officers Act, I am well satisfied that the complaint is trivial. I have examined the transcript before Sackar J on 1 February 2021. His Honour was at all times polite to both parties. The only time that his Honour spoke firmly to Mr Bowers was when Mr Bowers talked over his Honour at length and his Honour requested that he stop doing so. That happened only once during the proceedings.
14. In his submissions Mr Bowers variously described Sackar J's request for confirmation as to where he lived as a "serious defamation", as being treated "like a criminal in a charge court", as a breach of privacy, as "serious" or "gratuitous" denigration, harassment, bullying and a "gratuitous insult". Mr Bowers did not rely upon anything other than the transcript of 1 February 2021 as the basis of these claims. Nor could he identify in the transcript any particular statement from which an "innuendo" that he was of no fixed abode could be inferred. It is to be noted that his Honour's request that Mr Bowers confirm his suburb of residence was prefaced by his Honour saying, "forgive me for asking…".
15. As for any breach of privacy now alleged by Mr Bowers, it is to be noted that his Honour did not ask Mr Bowers where he lived, as he already had that information. His Honour may have sought confirmation of Mr Bowers' address given that he had just been informed that Mr Bowers was living in London at the time he was provided with relevant correspondence. His Honour may have been simply confirming, given Mr Bowers was dialling into the courtroom by telephone, that he was in the jurisdiction. Whatever the reason for the question, there is simply no basis to impute the motive for it advanced by Mr Bowers.
16. I am satisfied that Mr Bowers' claim that the Commission's decision to summarily dismiss his complaint under s 20(1)(c) of the Judicial Officers Act was unreasonable is so untenable that it cannot possibly succeed.
17. As for summary dismissal of the complaint under 20(1)(h) of the Judicial Officers Act, I do not accept Mr Bowers' submission that the Commission was required to identify "all the circumstances" relevant to that finding. That subsection is directed towards circumstances where the conduct is incapable under any circumstances of constituting judicial misconduct or affecting the performance of a judge's duties. Given that I have already stated that the present complaint, even if proven, could not satisfy that statutory test, I am also satisfied that Mr Bowers' claim that the Commission's decision to summarily dismiss his complaint under s 20(1)(h) of the Judicial Officers Act was unreasonable is so untenable that it cannot possibly succeed.

ORDERS

1. I make the following orders: 1. The plaintiff's summons is dismissed pursuant to r 13.4(1)(b), Uniform Civil Procedure Rules 2005 (NSW). 2. The plaintiff is to pay the defendant's costs of the motion and the proceedings.

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: 30 July 2021