Karpin v Karpin

SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

4857/98 RHODA ATHENE KARPIN -v- MARCUS BERNARD KARPIN & 2 ORS JUDGMENT

1 MASTER: Last Friday, 9 April 1999, this matter was referred to me as Duty Master by the Registrar. Since the estimated length of hearing was one hour and since I had other matters listed before me which were expected to, and in the event did, occupy the entire day, I specially fixed the hearing of this matter before me for tomorrow, 15 April 1999. 2 The proceedings are a claim by the plaintiff, Rhoda Athene Karpin, for relief pursuant to Division 6 of Part 4 of the Conveyancing Act 1919 and in particular for the appointment, pursuant to section 66G, of statutory trustees for sale of certain real property. When the matter was before me on 9 April, Mr Willmott of Counsel appeared for the plaintiff and Miss Merkel of Counsel appeared for the defendants Marcus Bernard Karpin, Alwin Jacob Karpin and Caroline Karpin. 3 In the course of my inquiry of Counsel concerning the nature of the dispute before I fixed a date for hearing, I was informed by Miss Merkel, as a result of a specific question addressed to her by me in this regard, that the defendants did not oppose the appointment of the statutory trustees for the sale of the land but they did oppose appointment of the statutory trustee sought by the plaintiff to be appointed. 4 Before I fixed a hearing date, I stated and had it recorded, that I was acquainted with one of the defendants, Alwin Jacob Karpin, and that I had had a professional relationship with him when I was in practice at the Bar and he was a solicitor. I enquired of each party whether that fact caused any problem for that party to my hearing the matter. There was no objection raised by either the plaintiff or the defendants. 5 This morning application is made by the first and second defendants Marcus Bernard Karpin and Alwin Jacob Karpin, that I should disqualify myself from the hearing of the matter. 6 Mr Hodgson of Counsel has appeared today for those two defendants. That application on behalf of those defendants has been opposed by Mr Willmott of Counsel for the plaintiff. 7 The basis upon which the present application that I should disqualify myself is made upon the ground of what is compendiously referred to in the authorities as perceived bias. It was stated by Mr Hodgson from the Bar table that, according to his instructions, the professional relationship between Mr Karpin and myself ended on less than good terms. No evidence has been placed before the Court in support of that statement of instructions. It would be quite improper for me to express in the course of the hearing of that application or in the course of my judgment, my own recollection of the terms upon which a professional relationship between myself as a barrister and an instructing solicitor may have terminated upward of thirty years ago. 8 There have been in recent times a considerable number of decisions by courts of high authority concerning the disqualification of a judicial officer from hearing a matter. In R v Grassby (1989) 168 CLR 1 at 20, Dawson J, in dealing with what has been sometimes described as a reasonable apprehension of bias, said: The test which is to be applied when bias is raised has been clearly laid down. It is whether in all the circumstances the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the matter before him: see Livesey v New South Wales Bar Association (1983) 151 CLR 288, Reg v Watson: Ex parte Armstrong (1976) 136 CLR 248. If so, then the judge ought not to proceed to hear the matter. Of course, as Gibbs CJ pointed out in Reg v Simpson: Ex parte Morrison (1948) 154 CLR 101 at 104, the mere expression of the apprehension of bias does not establish that it is reasonable held; that is a matter which must be determined objectively. 9 The principles relating to disqualification on the ground of reasonable apprehension of bias have also been referred to more recently in Vakauta v Kelly (1989) 63 ALJR 610 and Galea v Galea (1990) 19 NSWLR 263. 10 However, in approaching this question of disqualification on the ground of apprehended bias, it is important to bear in mind the judgment of Mason J (as he then was) Re JRL Ex Parte CJL (1986) 161 CLR 342 at 352. His Honour there said: It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Reg v Watson Ex parte Armstrong (1976) 136 CLR 248 and Livesy v New South Wales Bar Association (1983) 151 CLR 288 has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or an account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one part. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is reasonable apprehension of bias by reason or prejudgment and this be "firmly established": Reg v Commonwealth Conciliation and Arbitration Commission Ex parte Angliss Group (1969) 122 CLR 546 at 553 to 554; Reg v Watson; Ex parte New South Wales Bar Association (1976) 136 CLR 248; Re Lusink Ex parte Shaw (1980) 55 ALJR 12 at 14, 32 ALR 47 at 50-51. 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. 11 One of the most recent authoritative decisions in this area of the law and one which emphasises and applies the sentiments expressed by Mason J in the passage which I have just quoted from in Re JRL Ex Parte CJL, is the unreported decision of the Court of Appeal in Raybos Australia Pty Limited v Tectran Corporation Pty Limited (No9) (27 November 1990). 12 In the leading judgment, Kirby P, by then the President of the Court of Appeal, referred to applications of this nature and to an application which was made to the judge at first instance that he should disqualify himself and that another judge should hear the matter. His Honour said: One cannot but have sympathy for his Honour. It appears that he inherited the allocation of the proceedings only when another judge, originally allocated, took leave to fulfil an overseas commitment. The inheritance of litigation with such a long history of interlocutory challenges and appeals (and with the prospect of a trial of many months, possibly years ahead) must not have seemed immediately alluring. For many, the slightest legitimate excuse to avoid such a burden - and to let the cup pass - would have been accepted, perhaps with solemn disavowals of distress, but with relief nonetheless. 13 The President later continued: A party may not, by the vehemence of an assertion of grounds for disqualification, or the angry repetition of such grounds, drive a judge, otherwise assigned to hear a case and not disqualified from doing so, from the fulfilment of his or her duty. 14 His Honour later reviewed the various authorities to which I have already herein referred and pointed out that the relevant considerations usually tug at the mind in opposing directions. His Honour also referred to series of recent decisions where the High Court of Australia stressed the very high standards of manifest neutrality and impartiality established by that Court for observance by every judicial officer in the courts of Australia. His Honour made references to the various authorities and decisions in the High Court to which I have already referred. 15 It is appropriate also that I should refer to a more recent decision in the Court of Appeal, Bainton v Rajski (1992) 29 NSWLR 539. In that case Mahoney J said at 541: "it is clear that a judge..." A little later in his judgement his Honour quoted the passages which I have already set forth from the decision of Mason J in the High Court of Australia in Re JRL Ex parte CJL. 16 The present application on behalf of the first and second defendants is opposed by the plaintiff. The plaintiff has pointed to the fact that the Counsel who appeared last Friday was Counsel who had been in the matter for some time and that there was stated then, on behalf of all the defendants, that there was no objection to the substantive relief being sought but only to the identification of the proposed trustee and, further, that the objection was one which had for the first time been raised on that very day, 9 April. It was submitted on behalf of the plaintiff that today's application is only a further step in what Counsel described as a history of filibustering, and that in these proceedings there was not, and could not be, a reasonable apprehension of bias. 17 I would not personally have any problem in dealing with this matter, and especially since the only aspect of the matter which is in dispute now appears to be the identity of the proposed statutory trustee for sale of the subject property. However, the question which I must now decide is whether it could be reasonably inferred that I would not bring an impartial and unprejudiced mind to the resolution of the matter before me. 18 The second defendant perceives the professional relationship which obtained between himself as a solicitor and myself as a barrister upwards of thirty years ago as ending on less than good terms. If that fact be accurate and be substantiated and if that be the perception of the second defendant, then in those circumstances I consider it proper that I should disqualify myself from the hearing of the matter. 19 However, it seems to me that the plaintiff should not be prejudiced by further delay in this matter. In consideration of the fact that the present application was brought after Counsel appearing in the matter on 9 April had expressly stated on behalf of the present applicant/defendants that there was no objection by those, or indeed any, of the parties to my hearing the matter, I do not see why, if one of the defendants chooses to change his instructions after a hearing date has been fixed, the plaintiff should be prejudiced by that fact. 20 I propose to have enquiries made to see whether the hearing will be able to proceed tomorrow. If it cannot proceed tomorrow, then I will do everything possible to arrange for it to be heard at the earliest possible date. 21 I will vacate the hearing before myself fixed for tomorrow. The present application would have been unnecessary if Counsel for the defendants had on 9 April 1999, when I stated that I had had a professional relationship with the second defendant when I was in practice at the Bar, informed the Court that there was some objection to my hearing the matter. Instead of that, the Court was expressly informed that there was no problem for the defendants to my hearing the matter. The present application has been brought about solely because of the conduct of the defendants in allowing the matter to be fixed for hearing before myself, and the plaintiff has thereby been caused expense and inconvenience. 22 It is only proper in my view that in those circumstances the applicant/defendants should pay the cost of today's application. 23 I make the following orders: 1) I order that the hearing specially fixed before me for Thursday, 15 April be vacated.

2. I order that the cost of the plaintiff of today's application be paid by the first and second defendants.

3. I grant leave to the plaintiff to proceed forthwith to assessment of the foregoing costs.

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