THE RECUSAL APPLICATION - COSTS
24 In dismissing the Leave Application I rejected in large part the explanation that had been advanced by Mr Budini for the delay in lodging a complaint with the Commission, as advanced in evidentiary material filed on the applicants' behalf and elaborated upon in some detail in submissions. In so concluding, I had regard to Mr Budini's conduct in the period during which he formally or informally assumed responsibility for Ms Budini's affairs: Budini at [61] - [80]. The temporal focus of that enquiry was the period leading up to the lodging of the complaint with the Commission in February 2018. The absence of a reasonable explanation for the delay was held to be a sufficient basis for refusing the grant of leave: Budini at [83].
25 Mr Budini's application that I should be disqualified from determining questions of costs was first made in March 2020 after the respondents belatedly confirmed that an order for costs would be sought on an indemnity basis.
26 Mr Budini submits that an apprehension of bias arises on the Indemnity Costs Application because of adverse findings he submits I have made about his behaviour and motivations in my reasons for judgment in Budini. He alleges that the findings were made "without warning" and that he was deprived of the opportunity to make submissions about the inferences that the Court might draw from the evidence. These submissions specifically relate to conclusions I have drawn about correspondence authored by Mr Budini in the period before the complaint was lodged with the Commission.
27 In determining the Leave Application, it was necessary to make substantive factual findings so as to determine whether Mr Budini's explanations for the delay should be accepted as true and adequate. As I said in Budini (at [54]), the asserted explanation for the delay was:
… considered in light of contemporaneous correspondence, particularly correspondence authored by Michael Budini himself. That task has not entailed the Court preferring the testimony of one deponent over another. Rather, it has involved the drawing of inferences from undisputed facts and the contemporaneous communications (the authenticity of which was not questioned).
28 In his affidavit material, Mr Budini positively advanced an explanation for not lodging the complaint within 12 months of his first becoming aware of the alleged contravening conduct. A substantial portion of the hearing was devoted to that question. Mr Budini's submissions were to the effect that the length of the delay was not unreasonable and that there was a reasonable explanation for the delay in any event. He gave evidence about the steps he had taken in the period prior to February 2018, and the knowledge he had at various times about the conduct complained of. Mr Budini did not claim to have been unaware of the timeframe specified in s 46PH(1)(b) of the Act, whether in his evidentiary materials or in the course of argument.
29 In considering the issue of delay, I had regard to contemporaneous correspondence that had been authored by Mr Budini and directed to Sunnyfield, threatening litigation and adverse media coverage in the period before the complaint was lodged. The fact, authenticity, timing and content of the correspondence was not in dispute. One of the letters authored by Mr Budini was sent to the New South Wales Civil and Administrative Tribunal. It is described in Budini at [66] as follows:
On 5 October 2016, Michael Budini sent a lengthy email to a representative of NCAT, copied to several workers at Sunnyfield. The email set out multiple detailed allegations toward Sunnyfield largely (but not entirely) encompassing the factual subject matter now sought to be agitated in this Court. The email is replete with capital letters, exclamation marks and rhetorical questions. It is immoderate in its tone. It refers to 'proposed litigation' including litigation founded in 'various breaches of anti-discrimination statutes' and asserts an entitlement to unquantified damages.
30 Mr Budini was an admitted legal practitioner at the time that the correspondence was sent.
31 In other correspondence, Mr Budini threatened that there would be television coverage causing reputational harm to Sunnyfield if it did not comply with his demand to participate in a private mediation of his asserted claim. He claimed that he had obtained counsel's opinion and litigation funding. He asserted that Ms Budini had claims against Sunnyfield sounding in $10 million in damages. The claim ultimately filed sought financial remedies in the amount of $3 million, including a component of $1 million said to represent losses suffered by the Trust. Some of my conclusions in relation to these topics were expressed as follows:
64. There are many complaints, some of which are multifaceted. On the whole, I am not satisfied that Michael Budini learned of the essential facts in sufficient detail to make the allegations of unlawful discrimination as recently as he claims. I find that his claims as to when he had knowledge of certain matters are either directly contradicted by, or otherwise cannot be reconciled with, his contemporaneous communications with Sunnyfield over a period spanning several years. My conclusions in this regard vary as between the many and varied alleged acts of unlawful discrimination and will be further explained in the course of considering the respondents' submission that the claims have no reasonable prospect of success.
65. In relation to all of the allegations, I find that from at least October 2016, Michael Budini embarked on a course of correspondence with or including Sunnyfield that was far from conciliatory. The correspondence reveals that Michael Budini was in possession of the material he needed to formulate the complaint for a significant period before the complaint was lodged. Rather than lodge the complaint, Michael Budini devoted personal time and resources to making claims for an extravagant settlement sum against Sunnyfield, including by making demands and threats of adverse publicity.
32 I went on to say this about the steps that had been taken by Mr Budini in the period before the complaint was lodged:
77. The current affairs program Today Tonight broadcast a story on or around 20 May 2017 in which Michael Budini made serious allegations against Sunnyfield and its treatment of Ms Budini. There was some suggestion in the course of the hearing that Michael Budini did not invite media attention to his complaints. Even if I were to accept that submission it does not address the circumstance that Michael Budini willingly participated in media coverage disclosing Ms Budini's personal circumstances. In light of his correspondence it is reasonable to infer that he did so for the purposes of inflicting reputational losses on Sunnyfield which he then suggested Sunnyfield might 'mitigate' by settling his claims.
…
80. I infer from the content and tenor of the communications that Michael Budini adopted a strategy by which he delayed lodging the complaint with the Commission for conciliation because he preferred to resolve the complaint by way of amplified threats of litigation coupled with demands made in his capacity as a legal practitioner. The threats were made with a view to having Sunnyfield participate in a private mediation to answer a claim said to be valued at $10 million under the pain of exposure to damaging media coverage and a withheld report to authorities of alleged fraud. In my view, Michael Budini utilised a considerable period of time in 2016 and 2017 drafting correspondence, the content and tone of which could only have served to elevate the dispute. I find that Michael Budini delayed lodging the complaint because he elected instead to attempt to obtain a settlement sum by his own efforts and methods rather than submit the very serious and damaging allegations to the Commission for prompt conciliation. In the circumstances, I reject the submission that the length of the delay was reasonable in all of the circumstances and I reject the contention that there was a reasonable explanation for it.
33 It is submitted that these passages contain findings as to Mr Budini's behaviour and motives, including as to the objectives and purposes underlying his pre-litigation dealings with the respondents "without any prior warning" and so without him being provided with an opportunity to adduce evidence or make submissions about them. It is submitted that the conclusions were drawn by the Court "without hearing or knowing of such alternative explanations". In written submissions, the argument was expressed as follows:
a. in drawing inferences, her Honour relied upon the fact that Michael Budini's correspondence to the respondents was 'replete with capital letters, explanation [sic] marks and rhetorical questions' and 'immoderate in its tone';
b. Michael Budini had no warning that the style and tenor of his correspondence would be relied upon in this manner, and therefore no opportunity to adduce evidence or to make any submissions in order to put forward an alternative explanation;'
c. had Michael Budini been afforded such an opportunity, then he would … have explained that such correspondence was symptomatic of his condition at the time, and it was respectfully therefore not open to the Court to draw any other conclusions or inferences from it.
34 Reliance is placed on an affidavit of Mr Budini's solicitor, Mr Jacob White. Mr White deposes to the evidence Mr Budini would have adduced to explain the content of his pre-complaint correspondence had he been forewarned. Mr White states that he has instructions to the effect that the following evidence could and would have been adduced:
(a) Despite holding a practising certificate, Mr Budini performed little by way of legal work, due to persistent mental health problems associated with anxiety and depression.
(b) His depression caused him to have suicidal ideations, and to self-medicate with alcohol.
(c) To the extent that he did work as a lawyer, his principal field of practice had been property and development law, not litigation.
(d) He had little by way of experience in briefing counsel.
(e) He knew broadly of the existence of anti-discrimination laws, but he had never worked in the area and, due to his anxiety and depression, he had no confidence in being able to research the relevant legal principles for himself.
(f) His 'design' in 2017 was not to 'inflict reputational losses on Sunnyfield' but was, rather, to conduct a mediation with Sunnyfield, as reflected by his repeated statements in written correspondence to the effect that:
i. he was not pursuing the media, but rather they were pursuing him; and
ii. he wished to mediate in preference to speaking with the media.
(g) When he eventually did speak with the media, his objective was not to 'inflict reputational losses on Sunnyfield' but, rather, to shine a light on what he perceived to be the abuses that were occurring in aged/disability care facilities, being an objective with which he feels vindicated having regard to the fact that Royal Commissions were subsequently established to enquire into those sectors.
(h) To the extent that his attempts at arranging a mediation were clumsy or unconventional, that was merely because of his lack of experience as a litigator and his general lack of confidence in life stemming from his anxiety and depression.
(i) To the extent that his correspondence was long-winded, 'replete with capital letters, explanation [sic] marks and rhetorical questions' and 'immoderate in its tone' (being the findings at [66] of the Decision), that reflected, in part Michael Budini's usual emotive writing style, but also the circumstances in which Michael Budini was experiencing symptoms of stress, anxiety and depression and was deeply frustrated about the conduct of the respondents. It therefore did not represent an element of any supposed strategy or design on his part.
(j) He did not know of any lawyers in Adelaide who were experienced in discrimination matters and, had he known of such a lawyer, he would have engaged that lawyer early in 2017.
(k) In mid-2017, his current counsel, Mr Hurren, suggested that he approach my firm.
(l) Michael Budini had wished, all along, to engage solicitors and to follow their advice, but he was initially unsure how he would be able to afford to do so. Having eventually found and having engaged my firm, he did in fact set about following our advice (rather than following or implementing any strategy or 'design' of his own).
(m) In referring to the steps that Michael Budini took to engage, and to follow the advice of, my firm, neither I nor Michael Budini intend to waive legal professional privilege. With that qualification, I say that, in June 2017, my firm expressly advised Michael Budini to:
i. renew his guardianship of Enrica Budini through NCAT;
ii. apply to NCAT for the necessary 'status' to take legal proceedings on behalf of Enrica Budini;
iii. speak further with potential witnesses to confirm whether they were willing to provide statements; and
iv. provide my firm with a raft of background documents.
(n) The time then taken for those events to occur reflected no more than a desire by Michael Budini to follow and to implement our advice, rather than a negotiating strategy or design on his behalf.
(o) Michael Budini had been unaware of a requirement to make a complaint to the Australian Human Rights Commission (AHRC) within 12 months.
(p) He did not 'design' a strategy that involved avoiding or delaying the making of such a complaint and, to the contrary, he would have tried to make a complaint sooner had he been aware of the relevant time constraint for doing so.
(q) He did not persist with any claim for $10million or even $6million and, instead, he instructed my firm to approach the solicitors for the respondent to indicate that he and Enrica Budini would settle for an amount well below $1million.
(r) In particular, on 21 March 2018 (some 7 months before these proceedings were instituted), Michael Harmer had a teleconference with Mr Clark, solicitor for the respondents, in which:
i. Michael Harmer proposed that the parties participate in a mediation;
ii. Mr Clark referred to the fact that Michael Budini had previously made a demand of $10 million;
iii. Mr Harmer said words to the effect of 'we are not talking about $10 million. We are not even talking about $1 million. It would settle for a sum well below $1 million';
iv. Mr Clark said words to the effect that he would get instructions in relation to the proposed mediation and revert to Michael Harmer.
(s) After the said telephone conference on 21 March 2018:
i. Stuart Clark did not revert back to Michael Harmer;
ii. the respondents informed the AHRC that they did not wish to participate in any mediation with the applicants (I refer to the email from Hyun Joo Lee, Conciliator, to me dated 20 June 2018, which is annexed and marked JW-10).
(original emphasis)
35 The applicants submit that recusal is warranted in this case for the same reasons identified by the English Court of Appeal in Mengiste v Endowment Fund for the Rehabilitation of Tigray and Ors [2013] 5 Costs LR 841. In that case, the Court of Appeal set aside the judgment of a primary judge refusing to recuse himself from determining a wasted costs application brought against the appellant's solicitors. In his reasons for judgment in the principal proceeding, the primary judge had expressed strident criticisms about the conduct of the solicitors. The criticisms and findings were not relevant to any substantive issue to be determined in the substantive cause. They were expressed in conclusive terms and they included findings of fact about the solicitors' conduct in respect of which they had not been afforded any opportunity to be heard. There was, in that case, an "inevitable collision" between the principle of wasted costs and the application for recusal because the wasted costs order could not be made unless there was some basis for criticising the solicitors' conduct.
36 Giving judgment for the Court of Appeal, Arden J "reached the clear conclusion that this was an exceptional case and that there was apparent bias stemming from the facts of the case" which required the recusal of the primary judge (at [59]). Her Honour gave three reasons for that conclusion. First, it was not necessary for the primary judge to make critical findings about the conduct of the solicitors in order to evaluate the evidence and determine the issues in the principal proceeding. There was no need, her Honour said, to make the criticisms without inserting an appropriate qualification that they were provisional views or views based on limited evidence "thus being seen to leave the door open to the possibility that there might be another explanation". Her Honour said that the fair minded observer would ask rhetorically why that had not been done. Second, the conclusive manner in which the criticisms were expressed, coupled with the failure to afford the solicitors an opportunity to be heard, conveyed an impression of bias because it suggested that no explanation would be considered. The impression of bias was "further confirmed by the making of findings of this nature when it can be foreseen that an application for a costs order, with serious consequences for the solicitors, may result". Third, the case was one in which there had been six occasions of criticism in the reasons for judgment. The primary judge had then made further criticisms of the solicitors for bringing the recusal application at the time that they did, describing the timing as "tactical". In their accumulative effect, the criticisms were "extreme" and "unbalanced": see Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451.
37 I do not consider there to be a proper basis to recuse myself from determining the question of costs in this case, whether on the basis identified in Mengiste or on any other basis.
38 The fair minded observer must be taken to be aware of all of the circumstances of the case, including the nature of the issues to be determined on the Leave Application and the manner in which the parties presented their respective cases. The fair minded observer must also be taken to be informed about the exchanges that occurred between the Court and Mr Budini's counsel in the course of the hearing, particularly in circumstances where it is alleged that no "prior warning" had been given of the inferences the Court ultimately drew on the evidentiary material before it.
39 Unlike the circumstances in Mengiste, Mr Budini's state of mind and conduct in the period leading up to February 2018 was a relevant issue to be determined in the substantive proceeding to which the present cost application relates. The subject was dealt with extensively in evidence and submissions. At issue was whether Mr Budini had a reasonable explanation for lodging the complaint at the belated time that he did. Mr Budini's pre-complaint correspondence was in evidence and all parties made submissions about the inferences that might be drawn from it.
40 It is convenient at this juncture to extract some portions of the transcripts of the hearing relating to the correspondence. References to Counsel in these extracts are references to Counsel appearing for Mr and Ms Budini. The extracts have been numbered for the purposes of the analysis that is to follow.
Extract 1
THE COURT: … one of the critical issues for me to decide is what was the reason for the application not being brought within 12 months, or the complaint not being lodged within 12 months. And Mr Budini has put on a good deal of evidence about that, much relating to what he knew in earlier times and what his role was in earlier times; what steps he was taking upon discovering matters that he says now support his claim. And so I will be making substantive findings of fact in relation to those topics and the parties might wish to press their objections to material that bears on that issue.
…
Extract 2
THE COURT: … And this all in the context of then making a demand for $10 million under threat of media publicity, I'm having great difficulty understanding what proper basis there could be for a $10 million assertion, unless it's just an ambit claim to get somebody to the table. This is from a legal practitioner. We now have claims for $1 million made for both Mr Budini and Ms Budini, and the affidavit evidence on Mr Budini's case is that there has been about $300,000 paid by the trust to Sunnyfield, as I understand his allegation.
COUNSEL: No, that's not the evidence, your Honour.
THE COURT: Now - - -
COUNSEL: Your Honour, I can address every point you've raised.
THE COURT: Yes.
COUNSEL: Your Honour obviously has a concern that $10 million was demanded under threat of media - - -
THE COURT: Yes. I suppose my concern is that there's a degree of immoderation in the language. There's a degree of immoderation and a lack of personal detachment in the way that Mr Budini has dealt with this matter in the period when he could and should have been lodging a complaint with the Commission.
COUNSEL: Yes.
THE COURT: And having regard to the detail in which he was making these assertions to Sunnyfield, rather than lodging a complaint promptly, I'm having some difficulty understanding what it is that he didn't know in the period between, say, 2015 through to 2017, when he was using his time to make threats in relation to a $10 million claim by reference to television coverage.
COUNSEL: But - - -
THE COURT: These things are concerning to me, and I'm simply raising them so that you can use your time to address them.
…
Extract 3
THE COURT: … The concern that I expressed was that the quantum of the claim, as stated in the originating application - quite specifically $1 million - - -
COUNSEL: Yes.
THE COURT: - - - didn't seem to me to have a proper foundation in the evidentiary material, and I'm looking at that in the context of an earlier assertion that it was a $10 million claim. Now, a tendency of a person in Mr Budini's position to exaggerate the quantum of a claim, I will take into account because it might give colour to the kind of proceedings that are to follow. That there will be allegations made without proper regard to the evidentiary basis for them.
COUNSEL: Yes. What I would like to do - yes.
THE COURT: Now, at the time of the drafting of the originating application, I'm concerned to know what was the evidentiary basis for the claim that $1 million had been lost as a result of the contraventions.
COUNSEL: Yes. … Now, when Mr Budini put forward a figure of $10 million it wasn't just the large amount that had gone missing year after year together with compounding interest that of itself would be in the millions, but it also expressly - it was stated in the correspondence - was put as an amount that would reflect a claim for punitive or exemplary damages. Your Honour is surprised that such a claim should have been put, but I want to take your Honour now - - -
THE COURT: It was some - the amount of the claim together with the immoderation in the language was of concern to me.
COUNSEL: But - and might I address both of those - - -
THE COURT: Yes.
COUNSEL: - - - now, your Honour, by - by the facts, because the - the - what I wish to put to your Honour now as to the - the extent, the nature and extent of the shocking things that occurred might aid your Honour in understanding, first, why it is claimed that this will be a case for exemplary damages, but secondly, your Honour, why Mr Budini might have used immoderate language. He was furious and he said as much in his second affidavit. He was beside himself with rage that his lifelong friend and relative had been treated in this way and the first example I want to take your Honour to is this: would your Honour please take up my written submissions?
… We say that Enrica's life was being imperilled on a routine basis and that it is an outrage and, your Honour, he was angry. He was absolutely furious. It didn't get any better when his concerns got short shrift and Sunnyfield engaged one of Australia's largest law firms to tell him to go away. So, your Honour, is it any wonder? These are matters of human concern. This is not a business matter. This is not a matter where Mr Budini is acting as a lawyer representing a client and needing to adhere to - strictly to his duties as a lawyer. This is Mr Budini writing as a very, very upset relative.
… So in a sense, your Honour, it almost negatives the delay completely. It almost renders the so-called delay irrelevant because one might rhetorically ask, 'What difference, really, did it make, Sunnyfield being given a long letter in March 2017 setting out all the allegations; big letter to Clayton Utz a couple of months later? What difference, really, is there between that and the issuing of this claim in February - sorry, the lodgement of the formal complaint in February the following year?"
41 On the basis of that material, I reject the contention that Mr Budini or his representatives could have laboured under the view that the Court would not proceed to make substantive findings about his conduct and motivations in the period leading up to the lodging of the complaint by reference to the content and tenor of his contemporaneous correspondence. To the extent that it was necessary to do so (which is doubtful) the Court made it plain that it would proceed to make findings about Mr Budini's reasons for not lodging the complaint at an earlier time and the steps he had taken in the pre-complaint period (Extract 1).
42 Counsel was also given express notice that the content and tenor of the correspondence was under the Court's consideration, including because of the threatened media coverage, the apparent exaggeration of the value of the threatened claim and the immoderate language Mr Budini had employed having particular regard to his status as an admitted lawyer (Extract 2). To the extent that it was necessary for the Court to disclose its thought processes prior to judgment, it was plainly foreshadowed that the correspondence might support an inference that Mr Budini had devoted his time to making improper threats rather than lodging the complaint with the Commission for conciliation (Extract 2). In response, Counsel expressly acknowledged that the Court appeared to have concerns about the apparently exaggerated worth of the claims and Mr Budini's dealings with the media in connection with them (Extract 2) and in relation to the manner in which the correspondence was expressed (Extract 3).
43 Counsel did in fact make substantive submissions on the subject matter of the Court's intimations (Extract 3). To the extent that it is now suggested that Mr Budini's contemporaneous correspondence did not fairly reflect his subjective motivations (whether because of mental illness, lack of confidence in life or otherwise), Mr Budini had every opportunity to provide instructions to his advisers in relation to it. Among other things, Counsel had the opportunity to submit, and did in fact submit, that Mr Budini had been pursued by the media (as recorded in Budini at [69] - [77]). Counsel submitted that the tenor of the correspondence reflected Mr Budini's usual emotive writing style (Extract 3). The immoderate tone of the correspondence was said to be explicable because Mr Budini was "absolutely furious" and "very, very upset" (Extract 3). It was open to Mr Budini to give an alternative explanation to that which was given.
44 As to the other evidence Mr White deposes might have been adduced, Mr Budini positively advanced evidence that he had suffered from a mental illness in the past, which explained a defined period of time in which he did not hold a practicing certificate. He had every opportunity to explain that he continued to suffer from a mental illness affecting his conduct following his readmission, such that any associated delay should be viewed sympathetically.
45 I reject the contention that Mr Budini lost an opportunity to submit that his manner of corresponding or the delay more generally were in some way attributable to his lack of knowledge, confidence or expertise in discrimination law. As to the time at which Mr Budini obtained legal advice from other practitioners, that topic was the subject of affidavit evidence, submissions and ultimately the subject of the following findings about which no discrete complaint is made:
78 On 30 May 2017, Michael Budini forwarded to Sunnyfield's solicitors an email from a litigation funder. The author of the email states that he has 'read through the material you have provided including counsel opinion, quantum of loss report and legal representation fee estimate'. The email goes on to express an interest in funding the proposed claim and proposes the terms of their arrangement. I infer that the email was forwarded to Sunnyfield to lend force to Michael Budini's threat of litigation, including by reinforcing that he had obtained counsel opinion and prepared a report of some kind quantifying alleged losses.
79 On the material before me I find that Michael Budini, himself a legal practitioner, had engaged independent counsel from as early as October 2016. Counsel participated in an interview with the 'informant' in November 2016 (over which a claim of legal professional privilege is now asserted). There is other material before the Court to confirm that Michael Budini was in communication with counsel in familiar terms in February 2017 when dealing with Sunnyfield about the return of Ms Budini's possessions.
46 Nor was Mr Budini deprived of the opportunity to give evidence to the effect that the delay was explained by his ignorance of the timeframe in which a complaint should be lodged with the Commission. Mr Budini was legally represented in this action and in his dealings with the Commission. His body of evidence proceeded from the footing that he was aware of the time statutory frame but delayed lodging the complaint for reasons including the various nature of the allegations and the time required to attend to the necessary legal and practical tasks to prepare and lodge the complaint. It would be an entirely different case to now suggest that the delay was explicable in any part by ignorance of the statutory time period, whether on his part or the part of his lawyers.
47 Finally in relation to the reliance on Mengiste, to the extent that there is criticism of Mr Budini's conduct expressed in the reasons for judgment in Budini, the criticism goes no further than was warranted for the disposition of the issues arising on the Leave Application. The reasons contain no criticism of Mr Budini in his later conduct of this litigation. To the extent that the reasons are disapproving of Mr Budini's conduct prior to the litigation the criticisms are not extreme, nor are they imbalanced.
48 It is true that the respondents have sought to rely on Mr Budini's pre-litigation conduct (among other things) as a basis for an application for an award of costs assessed on an indemnity basis. However, as Counsel for the applicants correctly submitted, the conduct of Mr Budini leading up to the lodging of the complaint in 2018 is not relevant to my assessment of whether an order for indemnity costs should be made. On an application for indemnity costs, the Court's focus is on acts or omissions warranting an award that would serve to indemnify the successful party for its costs in successfully defending the proceedings. The Court's focus on the Indemnity Costs Application is on Mr Budini's conduct as a litigant in this action, as and from (or perhaps immediately prior to) 22 October 2018. Unlike the legal context in Mengiste there is no inevitable collision between the issues decided on the Leave Application and the issues arising on the respondents' application for indemnity costs.
49 I have not overlooked the applicants' contention that the respondents should not have their costs because they have unreasonably refused to engage in alternative dispute resolution processes. I understand that submission to include a contention that Sunnyfield unreasonably refused to participate in the private mediation on the terms demanded in Mr Budini's correspondence of 2017. I do not consider there is a proper basis to recuse myself from hearing and deciding that question. Whether Sunnyfield has acted unreasonably will turn on how a reasonable person in Sunnyfield's position ought to have responded to the correspondence they received. It is not suggested that Sunnyfield was aware of any fact or circumstance that would require them to interpret Mr Budini's correspondence to mean something other than what it said. Whether Sunnyfield unreasonably rejected overtures to mediate is to be assessed on the objective facts as to how, when and on what terms the overtures were made. It does not turn upon any subjective issues explaining Mr Budini's choice of language.
50 Apart from the passages from Budini extracted above, the applicants have not drawn the Court's attention to any other part of the reasons for judgment that may properly form the basis for an order that I disqualify myself from deciding the Indemnity Costs Application.