Chan v Perry [2009] NSWSC 1278 | Case summary

JUDGMENT 1 HER HONOUR: On 16 November 2009 I refused an application by the plaintiff, Mr Yau Hang Chan, for me to disqualify myself on the grounds of actual or apprehended bias. These are my reasons for refusing that application. 2 The proceedings are brought by Mr Chan against Ms Barbara Perry arising out of a letter sent by her to Mr Chan (alleged also to have been published to persons other than Mr Chan). The statement of claim was filed on 9 December 2008. It was amended on 5 January 2009 and again on 15 May 2009. 3 On 22 May 2009 the defendant filed a notice of motion seeking to have the proceedings dismissed pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 and, alternatively, to have the three pleadings struck out pursuant to rule 14.28 of the UCPR. The motion was made returnable on 13 July 2009 to be heard in the Defamation List that week. 4 When the proceedings came before the Court on 13 July 2009, the hearing of the motion was adjourned due to Mr Chan's unavailability. Mr Chan did not appear on that occasion. However, material on the Court file discloses that he wrote to the defendant's solicitor on the morning of the hearing to say that he had been assaulted earlier in the day and was unable to attend Court. The proceedings were stood over to 10 August 2009 for hearing in the Defamation List that week. 5 On 10 August 2009, the hearing of the motion was again adjourned. On that occasion, Mr Chan applied for a referral to a barrister or solicitor on the pro bono panel for legal assistance, as provided for under rule 7.36 of the UCPR (the judgment on that issue states that the application was brought pursuant to Part 66A of the Supreme Court Rules but that Part has been repealed). Mr Chan had, after the last occasion on which the proceedings were before the Court, applied for Legal Aid but that application had been refused. Nicholas J made the referral sought and adjourned the hearing of the defendant's motion to the Defamation List of the week commencing 16 November 2009. 6 When the proceedings were called for hearing before me on 16 November 2009, Mr Chan applied for an adjournment on the basis that no legal assistance had been forthcoming pursuant to the referral made by Nicholas J. Mr Chan informed me that he had recently approached a barrister, not under the pro bono scheme, and that that barrister had offered to assist him. Mr Chan told me, however, that the barrister was not available that day. 7 I refused to adjourn the hearing, for the reason that it was the third occasion on which the matter had been listed for hearing and, further, that it seemed unlikely that any assistance would be forthcoming pursuant to the referral to the pro bono panel, since none had been offered within the period of three months following the referral. Referral under rule 7.36 does not guarantee the provision of legal assistance. The registrar has no authority to refer a litigant to a barrister or solicitor on the panel in the absence of his or her agreement to accept the referral: rule 7.36(5). 8 Following my refusal to adjourn the hearing, Mr Chan asked me to disqualify myself from hearing the matter on the grounds of both actual and apprehended bias. I also refused that application, reserving my reasons. However, during the course of argument in respect of the bias issue, Mr Chan stated that he was not feeling well (on Monday) and reiterated his desire to be represented by the barrister he approached two weeks ago, Mr Peter King. Since the Court sits in the Defamation List for the whole week, I asked Mr Chan whether he would prefer to have the matter heard later in the week in case Mr King was available then. At Mr Chan's request, I stood the defendant's notice of motion over for hearing today on that basis. I also indicated that, if Mr King is available tomorrow (Friday), the matter could alternatively be heard then. 9 Mr Chan put forward two grounds for the bias application. First, he noted that, on 13 August 2009, I gave a judgment in which I determined two applications by holding against Mr Chan: see Chan v Reynolds; Chan v Department of Housing & Anor [2009] NSWSC 792. Mr Chan had commenced two separate sets of proceedings, against the Department of Housing and, separately, against one of its employees. Each of the defendants filed a notice of motion seeking to have the proceedings dismissed pursuant to Rule 13.4(1) of the UCPR. In each case, I found in favour of the defendant and dismissed the proceedings. 10 Mr Chan submitted that my decision in those matters indicates that I am predisposed to certain views and certain rulings. He submitted, on that basis, that it is therefore meaningless for him to put any legal argument in the present case. Mr Chan also stated that he wants to appeal against my decision and that the appeal will entail his being critical of my judgment. 11 The second ground for the bias application was the fact that I had refused Mr Chan's application for an adjournment. Mr Chan submitted that the effect of my refusing his application was that he has been deprived of the benefit of the referral made by Nicholas J on 10 August 2009, rendering it a hollow order. 12 Separately, Mr Chan submitted that I am predisposed to refusing applications for adjournments in these kinds of cases, having also refused Mr Chan's application for an adjournment at the outset of the hearing of the two motions in the matters of Chan v Department of Housing and Chan v Reynolds (reasons given dated 27 July 2009). 13 Mr Chan asked me, on that basis, to refrain from sitting on his cases for a period of three years. 14 In support of his contentions, Mr Chan submitted that it is reasonable to assume the existence of a conspiracy between the listing Judge and the defendant to have the proceedings listed before me to hear the defendant's motion. The defendant is a Minister in the New South Wales Government. Mr Chan stated that she is a powerful political figure who enjoys the support of the Labor government. He submitted that, since the appointment of Judges to this Court and their promotion "to the Court of Appeal and beyond" is dependant on the Government, it may be inferred that the proceedings were listed before me pursuant to a corrupt arrangement because the defendant thought I would be "a safe bet" that I would determine the application in her favour. I do not think that is a sensible inference. 15 Mr Chan submitted that, if the Court required evidence of those matters, an order should be made compelling the defendant to produce her records as to the circumstances surrounding the listing of the proceedings before me to hear the present application. I declined to make such an order. The Defamation List has been allocated to me this week for the simple reason that the Defamation List Judge, Nicholas J, is presently hearing a defamation trial with a jury. 16 Finally, Mr Chan invited me, in the event that I was not satisfied as to a proper basis for disqualifying myself on the grounds of bias, nonetheless to refrain voluntarily from sitting on any of his cases for a period of three years. Mr Chan submitted that there would be no prejudice to the defendant if the case were adjourned again. 17 The principles applicable to the determination of the issues raised by Mr Chan are well known. As to the allegation of actual bias, I accept that I would be disqualified from hearing a proceeding or part of a proceeding to which Mr Chan was a party if I was in fact biased against him. However, that is not the position. I have not prejudged the issues raised by the defendant's motion and am open to persuasion by either party. 18 As to whether bias on my part may reasonably be apprehended, the governing principle was stated by the High Court in Ebner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337 at [6]: "A judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial." (Citations omitted) 19 In Ebner it was noted in the joint judgment (Gleeson CJ, McHugh, Gummow and Hayne JJ) at [8] that the application of the apprehension of bias principle requires two steps. First, it is necessary to identify what it is said might lead the Judge to decide the case other than on its legal and factual merits. The second step is that there must be "an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits". 20 The matter which it is said might lead me to decide the present case other than on its legal and factual merits is the fact that I have previously upheld two applications against Mr Chan to have proceedings brought by him dismissed, with the prospect of criticism of that decision on appeal by Mr Chan. Mr Lynch, who appeared for the defendant in the present application, submitted that those matters provided no legitimate basis for a reasonable person informed of the relevant circumstances to form the view that I might not bring an impartial mind to the issues raised for my determination. Mr Lynch noted that my earlier judgment entailed no credit findings but was, rather, a "clinical" application of the relevant principles. Mr Lynch submitted further that, if applications based on apprehended bias were too readily granted, the system of justice would "fall apart". 21 I do not think that there is any aspect of my decision in the earlier matters that would prompt a fair-minded observer to apprehend that I might not bring an impartial mind to the resolution of the issues raised by the defendant's motion in the present case. It was, as Mr Lynch submitted, no more than an analysis of the two pleadings by reference to the application of ordinary principles. 22 Further, I do not think that the prospect of being criticised by Mr Chan in the Court of Appeal might be thought to lead me to decide the present case other than on its legal and factual merits. A judge must expect that his or her decisions may be overturned on appeal from time to time. That is no threat to the independence and impartiality of the judge. Indeed, the prospect of correction by an appellate court may be thought to enhance those qualities. 23 It may be noted that it is not uncommon for a proceeding to be remitted to a judge following a successful appeal against a final judgment. Further, that is a course plainly contemplated in some statutes where a right of appeal against an interlocutory judgment is conferred: see for example s 5F of the Criminal Appeal Act 1912. There is implicit acknowledgement in those principles that a judge can remain impartial notwithstanding the identification and correction of error on his or her part, which sometimes follows the most strident criticism by the successful party. 24 For those reasons, I was not satisfied that I am disqualified from hearing the defendant's motion on the grounds advanced by Mr Chan. Further, having been allocated the judicial duty to hear matters for argument in the Defamation List this week, I did not think that it would be appropriate to me to accede to Mr Chan's invitation that I voluntarily refrain from hearing any matters in which he is a party. Accordingly, I refused the application. 25 Since preparing these reasons, I have read written submissions filed in the Registry on 18 November 2009 by Mr Chan in which he has sought to supplement the oral submissions put on Monday in support of his bias application. No leave was granted for further submissions to be put on, the application having been already refused. However, in the interests of determining the real issues in the proceedings in a manner that is just, quick and cheap, I considered it appropriate to consider the contents of those submissions. 26 Mr Chan has identified what he considers to be further grounds on which it may be concluded that I will be unable to ensure a fair hearing for him, even with the best intentions. He submits, in particular, that it will be impossible for me not to decide the present application against him because to do otherwise would require me to admit error in my earlier decisions in Chan v Reynolds and Chan v Department of Housing. Mr Chan submits that, since I am a relatively junior judge among the judges of this Court, I can therefore be said to be a "weak" judge and that I know and perceive myself to be so. He submits that it will be difficult for me, for that reason, to protect his right to a fair hearing against so powerful a defendant as a Minister of the Government. I disagree. 27 Separately, Mr Chan submits that I will not acknowledge error in my earlier judgment, because to do so would be to "self-destruct" and, in effect, to declare myself unfit to remain a member of the Court. 28 Since I have not yet heard argument on the defendant's motion, I do not know what error Mr Chan alleges in respect of my earlier decision that is relevant to the present application. Each decision entails the application of rule 13.4 in respect of a cause pleaded by Mr Chan. I remain open-minded as to whether there is any error of principle in the application of that rule in my earlier judgment that is relevant to the determination of the issues in the present case. For the reasons already stated, the identification of legal error on the part of a judge does not threaten his or her impartiality, nor his or her fitness for judicial office. **********

Chan v Perry

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