Application has been made this morning by Supriya Eliezer ("the plaintiff") to me to disqualify myself from hearing the Notice of Motion filed by the plaintiff on 18 August 2020. That Motion was listed for hearing today before the Duty Judge of the Common Law Division. As it happens, I am the Duty Judge for this week.
The Notice of Motion seeks orders in the following terms:
"1. Pursuant to the grounds in UCPR 36.15(1) that the order for costs in motions decided on 5 March 2017, 9 May 2017 and on 15 June 2017 be varied such that the order for costs does not apply in favour of the second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth and eleventh defendants.
2. Any application by the said defendants for costs assessments based on the above costs order be stayed.
3. Any other orders as the Court sees fit."
The orders sought to be varied were those made on 5 March 2017 by N Adams J, on 9 May 2017 by Johnson J and on 15 June 2017 by me. Each of the three judges, including myself, delivered reasons for judgment at the time the orders were made.
The plaintiff made an application for leave to appeal to the Court of Appeal against the judgments of N Adams J and myself. That application was dismissed: Eliezer v The Owners - Strata Plan No 51682 [2017] NSWCA 325. The identified respondents in the appeal proceedings are also the defendants in this matter.
In the course of making submissions to the Court this morning on the substantive Motion, it became apparent that the plaintiff was seeking to make a submission that it was inappropriate that I hear and determine the Motion filed on 18 August 2020. At that point, I interrupted the plaintiff's submissions to ensure that the intention of the plaintiff was clear, namely that an application was being made for me not to hear the Motion. The plaintiff identified that such an application was being made and that it was based upon the principle which might conveniently and shortly be called "apprehended bias".
This principle is one where, to put it in summary terms, the Court is asked to determine whether a fair-minded lay observer, acting reasonably, might apprehend that a judge may not bring an impartial mind to the decision on the substantive application: see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (200) 205 CLR 337.
[2]
Hearing of 15 June 2017
The principal support for the disqualification application relied upon by the plaintiff was derived from the transcript of proceedings on 15 June 2017 conducted before me.
In the course of that hearing, at T4.48, counsel for the first defendant in those proceedings, being the Owners of Strata Plan No. 51682 (to which I will refer as the "Owners Corporation"), made an application orally to amend the relief which it was seeking so as to rely on r 13.4 Uniform Civil Procedure Rules 2005 ("UCPR") rather than r 13.1 of the UCPR.
That application was treated as being made on behalf of the other defendants as well. Mr Joseph Eliezer, who was then appearing for the plaintiff with her authority, was asked whether he opposed that application. In the course of the discussion it became apparent that written submissions had been served on the plaintiff by the Owners Corporation prior to the commencement of the hearing, which identified r 13.4 as being the sub-rule being relied upon to support the application then being made. After that was identified, the following exchange took place at T6:
"HIS HONOUR: Mr Eliezer, what more do you wish to say with respect to whether I should grant leave to the defendants to amend their notice of motion to replace the reference to the rule from 13.1 to 13.4?
JOSEPH ELIEZER: I have no objection to the leave been granted but I do have objection to the motion then being heard today.
HIS HONOUR: I can deal with that by giving you leave to put in any further written submissions if you wish at the end of today. If you are prejudiced because you say you have not put all of your submissions, then I can cure that prejudice by giving you the opportunity to do so before the motion is determined.
JOSEPH ELIEZER: What timetable are we looking at?
HIS HONOUR: It is not a matter of negotiation Mr Eliezer, I will ask you in due course after you've heard all of the submissions and you've put all the submissions you wish to put whether you wish to put any further submissions and what time period you need. I will allow you a reasonable time period.
JOSEPH ELIEZER: That's okay."
On the basis of what had been put in submissions, I granted leave to the defendants to amend the Notice of Motion as they sought and the hearing of the matter proceeded. Each of the defendants then made submissions.
At T19 ff, at the conclusion of the defendants' submissions, I asked Mr Eliezer whether he was in a position to proceed and in doing so I drew his attention to what I understood to be the substance of the submissions being made by the defendants in support of their Motion.
Mr Eliezer, by making submissions which then continued for some time, proceeded to deal with the arguments of the defendants. Mr Eliezer's submissions, including exchanges with me, continued from T20 through to T32 when an adjournment was taken. Just prior to that adjournment I said,
"Now, you said earlier that you may not be in a position to complete all your submissions today. What I think I will do is just adjourn now until 2 o'clock, give you a chance to reflect on the things that I have said and so that I can be helped by you when you return as to how it is that the claim for damages in this Court is a properly based cause of action. Lawyers would say a viable cause of action. That is, how it can legitimately, within the constraints of the existing law, be brought and continued."
The Court then adjourned for lunch.
Upon resumption, I asked Mr Eliezer what more he wished to say. He made a further series of submissions. Those submissions commenced at T33 and continued through to T45. Mr Joseph Eliezer completed his submissions by saying,
"My role here is simply to put the plaintiff's position before your Honour. If such a finding were made then the vexatious and frivolous assertion, allegation of vexation would fall away, and the second assertion was that no reasonable cause of action. Then the Court's interpretation of s 80 statute, that section can proceed and also whether the Local Court action can be stayed. Your Honour, that is basically a conclusion of what the plaintiff is asking the Court to find. Any further clarification that your Honour would seek on any of those issues?"
I responded,
"No thank you. I am grateful for your submissions."
Mr Eliezer said, "Thank you, your Honour".
Some short submissions in reply were taken from the other defendants. It appeared that with respect to those submissions, when they were finished, Mr Eliezer took the opportunity to submit to the Court that he was not sure what the relevance was of the particular submission which had been made. I responded that I was not sure either, and I was not sure to what issue it was relevant.
Mr Eliezer then said, at T48:
"I will leave it at that. Your Honour could I add one last thing. I sincerely apologise if any offence was created to your Honour in maybe the way I said some things about the legal community."
I responded,
"Don't trouble yourself about that. I didn't take offence."
Mr Eliezer then said,
"As your Honour can see my plaintiff and [I] are very stressed and duress, and has been like that for a very long time. Thank you your Honour."
I then said "Does anybody else wish to say anything more, last chance?"
At that point no one indicated that they wished to make any further submissions. Mr Eliezer did not ask for any further opportunity to put in any submissions in writing. No orders were made providing for any further submissions.
[3]
Legal Principles - Reasonable Apprehension of Bias
The High Court of Australia in Ebner dealt with the question of the circumstances and legal principles surrounding a judge disqualifying himself or herself on the grounds of reasonable apprehension of bias. At [6] in the joint judgment of Gleeson CJ and McHugh, Gummow and Hayne JJ, their Honours said,
"Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge…the governing principle is that, subject to qualifications relating to waiver…or necessity…a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge may 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)
The substance of the basis for the application being made today is that a decision which I made on 15 June 2017, namely to permit an amendment to the rule being relied upon in the course of hearing a motion, was fundamentally unfair to the plaintiff because of the way in which it was made and without allowing further submissions to be made in writing after the conclusion of oral submissions. It seems to be submitted that because the decision itself was fundamentally unfair, then the requisite reasonable apprehension of the lay observer arises and that I should not hear the present matter.
[4]
Discernment
I have reached the conclusion that I should reject this application and that I should continue to hear this motion. I do so for the following reasons.
Having regard to the course of the hearing as recorded in the transcript, it is not readily apparent that the decision to permit the amendment itself was unfair, nor that it was perceived to be unfair by Mr Joseph Eliezer. At that time, the decision itself was clearly a procedural one. It involved determining whether one or another of the Uniform Civil Procedure Rules was a basis for an application which the defendants were making.
It was apparent from submissions that were made that the plaintiff had notice, from the written submissions, that the defendants intended to argue for the success of their Motion based upon the identified rules. When that became apparent, Mr Joseph Eliezer no longer pressed his opposition to the amendment. But he identified a circumstance of a possible prejudice, namely, whether he was able to put all of the submissions that he may wish with respect to it. The decision encompassed a provision which enabled any such prejudice to be accommodated, if it were necessary.
The course of the proceedings thereafter and the extensive submissions which were made about the facts, matters and circumstances supporting the causes of action which the plaintiff sought to rely upon, were not in any way constrained or adversely affected by the change in the specification of the rule. The submissions made by Mr Joseph Eliezer went on for some hours, they occupied many pages of transcript and, as is apparent from those parts to which I have earlier referred, Mr Eliezer had the opportunity to, and did, put all the submissions that he wished to put in opposition to the motion of the defendants. His submissions were not, in any way, adversely affected by the amendment which was granted.
Indeed, even after submissions were completed I specifically enquired of all of the parties whether there were any further submissions that any party wished to make. I am satisfied that Mr Joseph Eliezer had a full and complete opportunity, if he needed it, to ask for an order for leave to submit further submissions in writing, which I had earlier indicated I would grant if asked. He did not seek such an order.
I am satisfied that he did not seek that order because he felt he had had an adequate opportunity to deal with the case being presented by the defendants.
My conclusion in that respect is reinforced by the fact that, from reading the transcript of proceedings on 7 December 2017 before the Court of Appeal and the decision of their Honours which was subsequently published, no complaint was made to the Court of Appeal about any unfairness in the way in which the hearing before me in June 2017 was conducted. It was not said in the application for leave to appeal to the Court of Appeal that there had been any denial of procedural fairness, nor was it said that the decision which I made granting leave to the defendants to amend their motion to change the number of the rule that they were relying upon was in any way erroneous.
In those circumstances I am not satisfied that there is any substantial ground for contending that a "reasonable lay observer", as that phrase is used in the relevant authorities, would entertain any apprehension at all that I might not bring a fair mind to the determination of the present substantive motion.
Accordingly the application of the plaintiff that I disqualify myself from hearing these proceedings is refused.
[5]
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Decision last updated: 18 November 2020