This is the Court's third judgment in these proceedings. The Court's first judgment dealt with a Motion by the plaintiff, the City of Sydney Council ("the Council"), for payment of its costs out of certain funds it had paid into Court and another Motion brought by other claimants to the funds in Court ("the Chadhope parties"): An Application by the Council of the City of Sydney [2021] NSWSC 979 ("the first judgment").
The Court's second judgment dealt with an application by the Chadhope parties for me to disqualify myself from continuing to hear the proceedings, based upon the apprehension of bias principle. The application was made orally in the course of a directions hearing on the morning of 18 October 2021 and was refused. The Chadhope parties requested reasons for the refusal and they were published the following day, 19 October: An Application by the Council of the City of Sydney (No. 2) [2021] NSWSC 1330 ("the second judgment").
The present judgment should be read with the Court's first two judgments. Events, matters and persons are referred to in both judgments in the same way.
The present judgment deals with another application based upon the apprehension of bias principle the Chadhope parties made today, 4 November 2021, that I disqualify myself from continuing to hear these proceedings. The application was made when these proceedings resumed for the hearing listed this afternoon at 2pm. The hearing was to involve cross-examination of the Council's witnesses that was expected to take about 45 minutes. It was expected that the proceedings would conclude shortly thereafter.
At 1.26pm my Associate received submissions by email from the Chadhope parties making another recusal application in written submissions entitled "Second Recusal Application by the Chadhope Parties".
Due to my dealing with other matters as the Equity Duty Judge over the luncheon adjournment, the application and submissions came to my attention about 1.45pm today. The Court reconvened at 2.10pm and invited the Chadhope parties to make their application for me to disqualify myself. Mr de Robillard commenced to speak to his submissions at that time and I heard those submissions and considered and determined the application, then giving these reasons for the decision of that application.
The applicable law is not in doubt, it was set out in my second judgment, which referred to the principles as stated by the High Court in Ebner v Official Trustee (2000) 205 CLR 337; (2000); 75 ALJR 277; (2000) 17 ALR 644; [2000] HCA 63 ("Ebner"). These were recently restated and reaffirmed by the High Court in Charisteas v Charisteas (2021) 393 ALR 389; [2021] HCA 29 ("Charisteas").
The Chadhope parties' application, as Mr de Robillard summarised it, comprises three themes. The first theme is that the Court appeared to have so pre-determined the facts and the legal principles in the case adversely to the Chadhope parties that the apprehension of bias principle was engaged by particular things that were said and done on 18 October 2021, the day the Court gave the second judgment.
The second theme is that by the Court's conduct on 18 October 2021, the apprehension of bias was engaged because the Court demonstrated on that day that its mind was not reasonably open to persuasion. This lack of openness to persuasion was said to have been demonstrated by the Court's expressed attitude to various issues and in a "combative style" towards the Chadhope parties.
The third theme relates to matters of procedural unfairness. The Chadhope parties submit that all three general themes engage the apprehension of bias principle and lead to the conclusion that I should disqualify myself.
But before going to the specifics, it is important to distinguish what conduct of the Court can be considered in these reasons and what conduct is not open to present consideration. The Chadhope parties made their first application for me to disqualify myself from further hearing this case at the opening of proceedings on 18 October. I dealt with the application immediately and gave reasons the following day. To the extent that the Chadhope parties' present application criticises my reasons for decision on the first application, that is not a subject matter that I can go into in this application. If my reasons for decision are wrong in respect of the first application, that is not a matter I can correct now. It is reviewable, and if necessary correctable, by the Court of Appeal.
Similarly, the submissions and conduct of the Court leading up to the making of the first decision are all matters which are reviewable in the Court of Appeal. I gave my reasons for decision after argument on that day and I am not able to re-engage in that argument and reach a different conclusion. But I can consider matters put to me now relating to things that occurred after I gave my 18 October determination to refuse the application (see page 7 of the transcript of 18 October). This puts some of the points that the Chadhope parties make in proper context.
I return now to the theme of procedural fairness. The Chadhope parties submit that the proceedings were listed before me for mention on 18 October and that instead of dealing with it as a mention and adjourning the recusal application made by the Chadhope parties to allow them to prepare their application, the Court proceeded with the application. It seems to me that this now really is a matter for the Court of Appeal rather than for me. If while dealing with, and giving reasons for refusing an application, I denied a party procedural fairness, then that is a matter for the Court of Appeal to review, if an application for leave to appeal is made.
The only observation I would make about that contention of denial of procedural fairness is that the general principle is that applications for Courts to disqualify themselves should be dealt with expeditiously. The only evidence which has been filed in support of the first recusal application, since that application was determined is an affidavit of Ms McAndrew of 1 November 2021. But I already had that before me on 18 October as an unsworn affidavit (dated 17 October 2021) on which the Chadhope parties indicated they wished to rely and the exhibit to that affidavit became Exhibit CM-1 in the proceedings on that day. Whether it was sworn or not, it was before me when I gave my first decision. Also on 18 October Mr de Robillard was asked by the Court at the conclusion of argument whether he had any more points and he said "I don't think that I can assist any more, your Honour", and then I gave my decision. Other than making those observations I do not think that I am able to go into that matter, and re-examine my decision on procedural fairness grounds, for the reasons given.
The balance of the Chadhope parties' submissions deal with what occurred on 18 October after I made the decision (see page 7 of the transcript), which resulted in the second judgment. I will now briefly deal with those matters.
The Chadhope parties' submissions raised a theme that I did not treat them even-handedly on 18 October and dealt with them in a manner which demonstrated bias, or that would create an apprehension of bias, against them. A prominent part of this submission was what was said to be the contrasting treatment of each side in the manner the proceedings were conducted in respect of two identified issues: (1) the production of the costs agreement between the Council and Mr Lucas's firm, Maddocks Lawyers; and (2), whether the costs agreement was made between the Council and the entity which has charged the fees in these proceedings.
As to the first issue, the Chadhope parties submitted that the Court was demanding in respect of documents to be produced by the Chadhope parties on 18 October but was not sufficiently demanding in respect of documents required to be produced from the Council. And more importantly, it is submitted by the Chadhope parties that Mr Lucas misled the Court in one respect and that the Court was not hard enough on Mr Lucas on that issue.
The question on which it is said that Mr Lucas misled the Court relates to the production of a costs agreement in respect of which the Court asked (at page 8 of the transcript of 18 October): "Mr Lucas, have you provided the fee agreement or not?" The Council had been required to produce this costs agreement to the Court in the Court's previous orders. The transcript records that Mr Lucas replied: "I have provided a document that constitutes the agreement between the plaintiff and my law firm which sets out the agreed rates at which our firm can charge fees, so yes, it has been provided".
What Mr Lucas did not say to the Court on 18 October is that large parts of the costs agreement had indeed been redacted before the Council gave them to the Chadhope parties. That omission from production was pointed out by Mr de Robillard and the true facts emerged. Mr Lucas claimed that the redactions had occurred for reasons of the Council maintaining confidentiality. The Court pointed out to Mr Lucas that that was not a basis for him to decide for himself not to produce the whole agreement to the Chadhope parties and the Court said that his claims for confidentiality were subject to the Court's overriding power to order production:
"HIS HONOUR: Sure, but this is the Supreme Court of New South Wales, and I can cut through any confidentiality agreement. Now, why shouldn't it all be produced? The price of coming to Court and using the Court to make final determinations about money and various things like that, is that the council submits itself to the jurisdiction of the Court and you can't claim confidentiality before the Court.
LUCAS: I'll provide a full copy."
The Court then indicated that the Chadhope parties could be given the costs agreement on the basis that it was only to be used for the purposes of the proceedings. The Chadhope parties now submit on this application that the Court should have said to Mr Lucas at that point on 18 October that his conduct was not satisfactory, and that he had misled the Court. The Chadhope parties also submit that the Court had the duty to pursue the matter then and there with Mr Lucas, because the Court has a duty to protect the public from lawyers' misconduct.
No reasonable apprehension of bias arises out of what occurred here that is enough for me to disqualify myself. This is so, for several reasons.
It is clear from what the Court said that Mr Lucas's claim for confidentiality was rejected. The Court did not indicate to Mr Lucas at that time that his conduct was unsatisfactory, but it was proposed and directed on 18 October that Mr Lucas be cross-examined today. The Court left the issue on the basis that Mr de Robillard, on behalf of the Chadhope parties, was free to cross-examine him about this issue today and to put submissions to me about what findings I should make about Mr Lucas. It would have been premature for me to have drawn conclusions about Mr Lucas's conduct on 18 October, as is now being suggested. And had I done so it would not have been appropriate. And it does not show an apprehension of bias that I did not reach conclusions about Mr Lucas's conduct before permitting him to be cross-examined.
The second issue, on which it is said that I did not criticise Mr Lucas is the failure of Mr Lucas to identify the precise entity that is associated with his firm that signed the costs agreement with the Council. But this too is a matter in issue now raised by Mr de Robillard, which I will be considering in the evidence if the matter proceeds. I am yet to decide what is the right entity representing Maddocks Lawyers to have contracted with the Council. Whether a costs agreement between the Council and the correct entity has been produced and whether it can be relied upon is a matter which is still open to question. It is not obvious that my failure to criticise or discipline Mr Lucas already in respect of that subject matter is evidence of something which would engage the apprehension of bias principle.
The next theme which is raised by the Chadhope parties is that the Court showed not just a lack of even handedness but that I also showed personal involvement in the proceedings in a way which was not consistent with the objectivity that would be expected of a judge in such proceedings. And it was contended, for example, on behalf of the Chadhope parties that the Court demonstrated a "combative style" towards them. A principal example of this conduct is said to have been that several times the Court is recorded in the transcript as saying, "I'm not biased".
These words do not engage the apprehension of bias principle. It is important to look at the context in which those statements were made. They almost all occur in the context in which the Chadhope parties are criticising findings and conclusions in the first judgment. And the point that I was making on those various occasions, as is accurately recorded in the transcript, was simply this: that merely because the Court made findings and drew conclusions in the first judgment that Mr de Robillard submits are erroneous and subject to appeal, means just that, that they are subject to appeal and are not evidence of bias. The context was the Court was saying that alleged legal error does not show that "I am biased". And the transcript reads that way.
The final related area of criticism is that the Court generally demonstrated a "combative style" and made "threats" to the Chadhope parties. Nothing in the Court's recollection of events (from page 7 of the transcript) on 18 October demonstrates a combative style or conduct amounting to threats. To the extent that the Chadhope parties say that there was such conduct, the Chadhope parties' submissions summarise the transcript in ways that, upon examination are not borne out by the text.
It is important for this application to be dealt with today, so I have given oral judgment immediately. Before giving judgment, I called upon Ms Hulmes, counsel for the Council, to see if she wanted to make any submissions. But she indicated she did not wish to put any submissions on the matter, a not uncommon position for a respondent in an application of this nature.
Having considered the Chadhope parties' application today that I disqualify myself from further hearing these proceedings, I reject the application. I will deal with any consequent costs application, if there is one, later.
[2]
Conclusions and Orders
There is now insufficient time for the hearing listed for today to be completed. So, it will be adjourned to next Tuesday, 9 November 2021. For the reasons given here and as a result of the trial management submissions of the parties, the Court makes the following orders, notations and directions:
1. Note that the application by the Chadhope parties made orally today for me to disqualify myself is dismissed.
2. Note that the Chadhope parties read the affidavit of Celia McAndrew dated 1 November 2021 on the application listed for today.
3. The Court further notes that the Council reads the affidavits of Mr Norman Lucas dated 18 May 2021, 17 June 2021, 7 July 2021, 11 August 2021, 20 August 2021, and 22 October 2021 on the application listed for today.
4. The Court further notes that on the application listed for today the Council does not read the affidavit of Lauren Lowe filed 6 May 2021.
5. The parties are directed to each serve upon the other by 5pm tomorrow, 5 November 2021, a list of objections upon which they seek to rely to the evidence being read by the other side on the application listed for today.
6. Further extend time to 5pm tomorrow, 5 November 2021 for the Chadhope parties to comply with Order 10 of the orders made on 18 October 2021.
7. Direct the parties by 5pm on Monday, 8 November 2021 to put on any further written submissions on which they seek to rely.
8. Direct the Council by 5pm tomorrow, 5 November 2021 to provide any updated costs affidavit to the Court and to the other side.
9. The application listed for today is adjourned and is listed for Hearing at 10am on Tuesday, 9 November 2021.
[3]
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Decision last updated: 08 November 2021