Clarke v Herrick

Clarke v Herrick - [2021] NSWCA 102 - NSWCA 2021 case summary — Zoe

[3]

Judgment

MACFARLAN JA: This is an application by Ms Sharmain Clarke for leave to appeal to this Court against judgments of Curtis ADCJ given on 8 October 2020 in two sets of proceedings that were heard by his Honour together.
In the first proceedings Ms Clarke claimed damages in the sum of $35,000 plus filing fees from Ms Julie Herrick, for assault and battery by Ms Herrick of Ms Clarke. At the relevant time, in 2013, Ms Clarke was employed as a theatre nurse by the Royal Hospital for Women and Ms Herrick was Ms Clarke's Nurse Manager. The alleged assaults and batteries were of a minor nature, such as Ms Herrick pressing her index and middle fingers on Ms Clarke's cheekbone.
In the second proceedings, Ms Clarke claimed damages of $84,000 from Ms Susan Dale, one of Ms Clarke's co-workers at the hospital, in respect of a large number of minor assaults and batteries alleged to have been perpetrated by Ms Dale on Ms Clarke in 2013 and 2014.
His Honour heard the two proceedings in August and September 2020 over a period of seven days. Extensive oral evidence was given by Ms Clarke, Ms Herrick and Ms Dale. In resolving the questions of fact that were presented to him for determination his Honour had, for good reason, particular regard to the absence of any significant documentary support for Ms Clarke's allegations, notwithstanding that there were before his Honour a number of written statements and diaries containing substantially contemporaneous accounts by Ms Clarke of workplace grievances that she had. Ms Clarke was not able to identify any reason for this Court to conclude that his Honour misunderstood those documents. In these circumstances, and having referred to Ms Clarke's extensive cross-examination, his Honour effectively rejected her evidence and dismissed both of her claims. His Honour preferred the evidence of Ms Herrick and Ms Dale to that of Ms Clarke and, in dismissing the claim against Ms Dale said that he "was unpersuaded by Ms Clarke that any contact by Ms Dale was offensive, hostile or outside the accepted usages of daily life".
Prior to the hearing in this Court Ms Clarke filed lengthy written submissions, in closely spaced type on some 15 pages. They demonstrated Ms Clarke's dissatisfaction with the judgments but did not identify any arguable reason for concluding that she would have a prospect of success on appeal if leave to appeal were granted.
The same observation is relevant to Ms Clarke's oral submissions to this Court and to her supplementary written submissions dated 11 March 2021 that the Court granted her leave to file. With one qualification, it is unnecessary to deal with the detail of those submissions as they did not raise any arguable ground to found Ms Clarke's challenge to the judgments.
It is appropriate to mention one matter raised in Ms Clarke's supplementary written submissions, namely that she should have been permitted at first instance to rely upon a notice given under s 97(1) and s 98(1) (of the Evidence Act 1995 (NSW)) of her intent to adduce tendency and coincidence evidence. She described the evidence as follows: "The substance of the 'tendency' evidence which the Prosecution [Ms Clarke] intends to adduce [and apparently sought to adduce before Curtis ADCJ] is that the accused [apparently intended as a reference to each of Ms Herrick and Ms Dale] had a tendency to become stressed, aggressive, abusive of verbal and racist remarks inclusive of profanity, vile, inappropriate and lose her temper and control with the plaintiff [Ms Clarke] each time the accused entered the plaintiff's workspace, and then to action pushing, shoving, elbowing, shoulder charging, used her finger to 'dig' in the plaintiff's shoulder, pushed a cardex trolley into the plaintiff's foot injuring the plaintiff's right big toe nail, pulled on the bias binding neckline of a theatre top in the attempt to choke the plaintiff, repeated unconsented touching of the plaintiff's body parts, including shoulders was denied by the Lower Court Judge."
Whether or not there was any error in his Honour's rejection of the notice, which was first provided to Ms Herrick and Ms Dale's counsel only on the morning of the 6th day of the first instance hearing, it is apparent from the transcript that Ms Clarke suffered no prejudice as a result of any such error. In that regard, his Honour said when rejecting the notice that because Ms Clarke had not had legal representation, he had permitted her to lead the evidence that she suggested comprised "tendency evidence". Moreover, Ms Clarke did not demonstrate to this Court that any evidence of the nature referred to in [7] above that she attempted to adduce was excluded by his Honour. As a result, her complaint concerning the tendency and coincidence notice does not assist her application for leave to appeal.
The proceedings in the District Court were undoubtedly ones in which his Honour's factual findings were "likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence" (Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55]). For Ms Clarke to succeed, she would accordingly have had to establish that the primary judge's findings were "glaringly improbable" or "contrary to compelling inferences" (Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [29]). As she did not identify any arguable basis for concluding that the primary judge's findings fell into one or both of these categories, her application for leave to appeal should be dismissed with costs.
WHITE JA: At the commencement of the hearing of Ms Clarke's application for leave to appeal from the orders of the District Court dismissing her claims for damages against the respondents, Ms Clarke submitted that I should recuse myself from hearing her application. I declined to do so. These are my reasons.
The basis for Ms Clarke's application was that on 3 September 2018, I dismissed an application by Ms Clarke for pro bono representation in connection with a then pending application for leave to appeal from orders made by Adamson J striking out a statement of claim in other proceedings and dismissing that claim (Sharmain Daisy Clarke v South Eastern Sydney Local Health District [2018] NSWCA 202).
In my reasons for refusing Ms Clarke's application for pro bono legal assistance I doubted the merits of her application for leave to appeal from the orders of Adamson J and said that Ms Clarke had not sought to demonstrate that the reasons of Adamson J were incorrect for any specific reason ([8]). I also doubted that Ms Clarke would accept advice if a solicitor or barrister on the Pro Bono Panel advised her that she had no real prospects of success on the application for leave to appeal or advised that the primary judge was right for the reasons that she gave, notwithstanding her statement to the contrary ([7]-[8]). I noted that because Ms Clarke had been in receipt of pro bono assistance in the preceding three years the rules provided that the Court could not make a further referral unless satisfied that there were special reasons justifying such a referral (UCPR r 7.36(2A)). I was not satisfied that there was any special reason justifying a further referral of the applicant for pro bono assistance ([10]).
On her application that I should recuse myself from the present hearing, Ms Clarke referred to the fact that notwithstanding that I considered her application for leave to appeal from the orders of Adamson J lacked merit, in fact she had succeeded in that application without the benefit of legal assistance (Sharmain Daisy Clarke v South East Sydney Health District (No 2) [2018] NSWCA 226; and see also Clarke v South Eastern Sydney Local Health District [2020] NSWCA 8).
Ms Clarke did not contend that I was actually biased against her. As I understood her submission, she relied upon the ground of apprehended bias. The test for whether I should recuse myself for apprehended bias is whether a fair-minded, lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the issues arising on the application (Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294; [1983] HCA 17; Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]-[13]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31] (and numerous other cases to the same effect.))
In Ebner v Official Trustee, the plurality (Gleeson CJ, McHugh, Gummow and Hayne JJ) said at [8] that the application of the "apprehension of bias principle" requires two steps. The first is the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits. The second was an articulation of the "logical connection between the matter and the feared deviation from the course of deciding the case on its merits".
I understand this articulation to amount simply to this proposition: the applicant proposing that the judge recuse himself or herself must articulate why the hypothetical, fair-minded, lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues. I proceeded on the basis that the hypothetical fair-minded lay observer could consider that the possibility of my not bringing an unprejudiced and impartial mind to the resolution of the issues was by reason of subconscious prejudice. That is, the logical connection could encompass a reasonable fear that the judge might be subconsciously prejudiced.
In the context of administrative decision making Gageler J said in Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [59]: "… the test for the appearance of disqualifying bias in an administrative context is to be understood to mirror the test for apprehended bias in the curial context in two important respects. The first is that it is an "objective test of possibility, as distinct from probability". The second is that its application necessarily involves three analytical steps. Step one is identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as the result of a neutral evaluation of the merits. Step two is articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits. Step three is consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way."
The factor which Ms Clarke asserted might cause me not to approach the issues on the present application with an impartial and unprejudiced mind was my having rejected her application for pro bono assistance for the reasons I gave. When asked, Ms Clarke was not able to identify why my decision, and my reasons for it, might cause a reasonable bystander to apprehend that I might not bring an impartial mind to the resolution of the issues.
None of the issues before me in September 2018 arise on the present application. Although a question of Ms Clarke's credibility arose tangentially in the application of September 2018, no issue arises on the present application as to whether I should find her evidence to be credible. Rather, the issue on the present application is whether Ms Clarke can demonstrate a more than merely arguable claim that the primary judge erred in his assessment of her credibility.
In Livesey v New South Wales Bar Association, the High Court said at [300]: "…a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact."
This is not such a case. The mere fact that a judge has made a ruling adverse to a party in previous litigation, or in the same litigation, does not disqualify the judge from dealing with a subsequent application. The fair-minded lay observer is taken to understand that a judge by training, as well as by his or her judicial oath or affirmation, is bound to consider, and is accustomed to considering, different applications as they arise on their merits, irrespective of how previous applications involving the same party have been determined.
It is important that judges not be too ready to recuse themselves unless there are reasons which require them to do so. In Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39, Mason J said at 352: "Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."
For these reasons I declined to recuse myself from participating in the hearing of the present application.
On the substance of the application, I agree with the reasons of Macfarlan JA. Ms Clarke alleged that she had been assaulted by the respondents in the course of her employment. The primary judge, who heard the evidence over many days, accepted the evidence of the respondents to the effect that the alleged assaults did not occur. There is not even an arguable basis on which Ms Clarke could establish, if leave to appeal were granted, that the primary judge misused his advantage in seeing the witnesses in reaching that conclusion.
I agree with the orders proposed by Macfarlan JA.

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