Collier v State of New South Wales

Judgment 1HIS HONOUR: Ms Collier moves by notice of motion for an order that I recuse myself upon the basis of real or apprehended bias. That contention would appear to have been generated by my decision concerning whether or not Ms Collier's statement of claim disclosed a cause of action known to the law or otherwise complied with the relevant rules: see Collier v State of New South Wales [2014] NSWSC 776. I made an order striking out the statement of claim filed on 28 April 2014, and granted leave to file and serve an amended statement of claim within 21 days. Ms Collier has not taken advantage of that leave, but has instead embarked upon the present application. 2Ms Collier's application is supported by an affidavit sworn by her on 4 June 2014. It was read without objection. Ms Collier indicated that she did not wish to file further evidence in support of the relief that she now seeks. Her application is opposed. The State of New South Wales has not offered any evidence of its own. 3I dealt with the applicable principles in Hamod v State of New South Wales (No 11) [2008] NSWSC 967 at [2] - [5]. It may be helpful to restate what I said at that time: "Principles generally [2] The authorities emphasise that any 'reasonable apprehension of bias' must be 'firmly established' before it is appropriate for a judge to disqualify himself or herself from participating in the proceedings. The question of the hypothetical observer's reasonable apprehension falls to be decided against the standards of ordinary judicial practice: see Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 493, 508; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344, 365. The 'reasonable apprehension' criterion means that neither an expectation about the way the judge is likely to decide the case, nor an express allegation of bias, is necessarily sufficient to generate a reasonable apprehension of partiality: Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352. [3] It is a fundamental rule that every judicial tribunal must be, and be seen to be, impartial: Johnson (supra) at 501. Even in the absence of direct personal interest, a judge ought not to hear a case if a fair minded lay observer might reasonably apprehend an impartial judicial mind might not be brought to bear on the resolution of the proceedings: see, for example, Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568. The reference to the fair minded observer has been described as in reality 'no more than a personification of an objective test': see Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 at par [43] per Basten JA. [4] In deciding the question of 'reasonable apprehension' it is important that judicial officers discharge their duty to sit, and do not accede too readily to suggestions of the appearance of bias. The issue in each case is whether the judge appointed to hear the matter might not bring an impartial and unprejudiced mind to its resolution: Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd [1996] FCA 1308; (1996) 65 FCR 215 at 230. A necessary corollary of this criterion is that a judge ought not to disqualify himself or herself except for proper reason: Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272. The criterion of 'reasonable apprehension' should not be subverted into a lesser enquiry as to whether it would be 'better' for another judge to hear the case. Applying such an imprecise and impressionistic criterion could encourage a belief that a party can, by making disqualification applications, obtain a hearing before a judge thought to be more favourable: see Re JRL (supra) at 352. [5] The limitation of reasonableness is particularly important in deciding whether a judge's interlocutory rulings, or preliminary views of the likely outcome, indicate bias - irrespective of whether they are expressed at an early or late stage of the proceedings. Such interlocutory rulings or expressions ought not to be regarded as giving rise to a reasonable apprehension of bias unless they indicate a significant level of prejudgment in relation to matters relevant to the final resolution of the proceedings: Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 100. Generally speaking, because of the nature of the issues and the limited factual investigation that interlocutory proceedings involve, rulings on interlocutory matters are unlikely to justify a reasonable apprehension of bias: Idoport Pty Ltd v National Australia Bank Ltd [2004] NSWSC 270. See also Sir Anthony Mason, 'Judicial disqualification for bias or apprehended bias and the problem of appellate review', Constitutional Law & Policy Review, Vol 1, #2 12 August 1998 at 21." 4I also made the following observation in Hamod at [8], which applies with equal force in the present circumstances: "[8] It goes without saying that I am not able to express a view about my own partiality or otherwise except by reference to the applicable objective test. There is an obvious artificiality in the procedure to the extent that the party challenging my suitability for continuing in the proceedings is subject to a decision from the very person whose independence and impartiality he seeks to impugn. Resort to the objective test may not wholly assuage the particular plaintiffs' sense of unfairness in these or similar circumstances." 5Ms Collier's application is completely misconceived. It is also unaccompanied by any evidence suggesting or supporting the existence or the perception of bias of any type. Bearing in mind the necessarily subjective position from which I am required to assess the application, there is nothing in Ms Collier's affidavit that approaches the identification of material that would lead a reasonable observer to conclude that I have either acted or appeared to act in a way that would attract a grant of the relief sought. It is obvious that Ms Collier is dissatisfied with my earlier decision, and that she persists with a collateral complaint that I incorrectly, and from her point of view improperly, declined to permit her to call upon a subpoena before her pleadings were put in proper form. An unfavourable decision cannot, on its own and without more, amount to a demonstration of bias. That is for the most obvious reasons that require no elucidation by me, beyond a final reference to what I said in Hamod at [9]: "[9] ... at the most fundamental level, in accordance with the authorities that I have briefly reviewed, an adverse decision is not of itself any support, viewed objectively, for the proposition that the decision maker has not brought an independent mind to the decision. Self evidently no decision could withstand the potential for successful attack as long as there were parties to the decision in contest over the outcome. In such cases the decision(s) will have to stand or fall on their merits..." 6The correctness of my decision with respect to Ms Collier's statement of claim or with respect to her subpoena are matters upon which it is both unnecessary and inutile for me to comment. Ms Collier can presumably take her own course concerning those matters if she chooses to do so. 7In the meantime, Ms Collier's statement of claim has been struck out and has not yet been replaced. It is not therefore currently possible, or at least not advisable, for me or any other judge to make any worthwhile procedural or substantive order in the proceedings until effectively either Ms Collier or the State of New South Wales moves the Court for some particular orders or relief. I have not been inclined to dismiss the proceedings for want of due despatch, or for any other available reason, absent a formal application for such an order supported by proper evidence. Nor am I inclined to grant any further extension of time to amend Ms Collier's pleadings in accordance with the leave earlier given in the absence of a request that I do so. 8It is perhaps trite to observe that I am at present neither part-heard in any contest between the parties to these proceedings to which Ms Collier's application could have any conceivable relevance beyond this one, nor am I scheduled to hear any such contest in the future. There is to that extent no immediately discernible present or anticipated relevance or significance in the outcome of this application. The prospect that Ms Collier may choose to revive her application in later and different circumstances is something about which it is currently unprofitable to speculate. 9In the circumstances I decline to recuse myself. I consider that the proceedings should be stood into the Registrar's list on a date suitable to the parties from where the matter can thereafter proceed in accordance with the Rules of Court or in response to any further or other applications that the Court is asked by either party to make. The costs of this application should be the defendant's costs in the proceedings.