Kumaragamage v Rallis No.2

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2677/01 PRABHA RANJANEE KUMARAGAMAGE & 1 ORS v CHARLES SILVA RALLIS & 1 ORS

1 HIS HONOUR: On 6 June 2001 I published reasons for judgment on an interlocutory application by the plaintiffs, who sought to recover possession of a property and business at 180-182 Terminus Street, Liverpool, and some chattels there. I denied the relief sought by the plaintiffs (except in a minor respect), on the ground that there was no serious question to be tried with respect to their contentions that the defendants had wrongfully re-entered and terminated the leases of the premises. 2 I should say at once that the plaintiffs are litigants in person. The second plaintiff spoke for himself and his wife, the first plaintiff, although she was in court at all times and confirmed that he had her authority to speak on her behalf. The second plaintiff informed me that he is a law student. From the beginning, however, his conduct of the proceedings was very poor. He demonstrated some acquaintance with legal concepts and procedures, but no adequate understanding of the substance of the case or the procedures of this Court. 3 After observing his demeanour and responses to questions and his opponent's submissions over several days, I eventually concluded that the second plaintiff did not appreciate the limitations of his understanding of the matters in issue, and also that he had a determination, amounting to stubbornness, which made it difficult for him to realise his mistakes. One aspect of the dispute between the parties relates to the plaintiffs' failure to pay council rates with respect to the demised premises. On that issue, I said (at paragraph 51 of my reasons for judgment): 'The dispute between the parties as to payment of rates has, unfortunately, a long history. The history shows, in my view, a degree of stubbornness and unreasonableness on the part of the second plaintiff'.

A similar statement might have been made with respect to the second plaintiff's conduct of the proceedings before me. 4 The Court is well aware that some litigants are unable to afford to obtain counsel to assist them. The Court goes to great lengths to ensure that its procedures do not operate unfairly on an unrepresented litigant, while striving to avoid any hint of partiality and recognising that it is not the judge's role to provide legal assistance to a party. In such an environment, an unrepresented litigant can occasionally do credit to his or her case. Regrettably this is not such a case. This is a case where the second plaintiff's imperfect knowledge and understanding of the law has been a real impediment to the effective presentation of the plaintiffs' case. His partial knowledge of the law appears to be a disadvantage. I cannot over-emphasise the importance, in the plaintiffs' interests, of their being professionally represented at the final hearing. 5 On 6 June 2001 I made directions for the filing of affidavits with a view to preparing the case for final hearing, and I directed that the case be mentioned before me again on 3 August 2001. The case had initially come to me as Equity Duty Judge, but since I formed the view that the plaintiffs have real grounds for expedition of the final hearing, I brought it back to me on 3 August 2001 in my capacity as one of the two Equity Expedition Judges. 6 At the hearing on 3 August 2001 I was informed that the plaintiffs had filed a notice of motion, returnable before the Registrar on 10 August 2001, seeking orders of various kinds, some evidently going to the final resolution of the dispute, and others that would transfer the proceedings to the Common Law Division for a final hearing before a jury. I decided to allow that notice of motion to run its course before the Registrar, and to set down the proceedings for final hearing on an expedited basis. After the second plaintiff resisted some November dates on the ground that he had examinations at that time, I indicated that I would set the matter down for hearing from 3 to 6 December 2001 inclusive. The second plaintiff asked whether I would hear the case and I said that I would, as expedition judge. He then said: 'In that case your Honour I have another application, to disqualify yourself hearing this matter on the basis I had already made a formal complaint against your Honour's decision and also your Honour to the Judicial Commission.' 7 In answer to a question by me, the second plaintiff said that he had not made any application for leave to appeal against my judgment of 6 June 2001. He said: 'I did not try because it was interlocutory decision, interlocutory decisions are not appealable to my understanding, so on that basis I made a complaint to the Judicial Commission.'

Procedure for resolving a claim of bias 8 Some guidance on the procedure to be followed when application is made for a judge to disqualify himself or herself for bias was provided in the judgment of Mahoney JA in Bainton v Rajski (1992) 29 NSWLR 539, at 541ff. His Honour there warned against conducting a full formal hearing of every such application, having regard to difficulties that may involve contested facts, induced apprehensions and contempt of court. Having referred to relevant authorities, he said (at 543-4): 'Accordingly, if a procedure were adopted for dealing with disqualification which invited or was apt to produce allegations of this kind in court against the individual judge, serious and practical difficulties would be apt to arise. Damage would be apt to be done to the institution of the courts and so to the administration of justice. And it would be wrong for a party without reason to be put in jeopardy of being dealt with for contempt in that regard. It would, in my opinion, be wrong to do so in respect of parties appearing in person. Such parties may sometimes do what they do deliberately. But they may sometimes, for emotional or other reasons, not fully appreciate the consequences of what they are doing or be unable fully to control what they say. It is, I think, not appropriate that they be, in such cases, put unnecessarily in a position where, if honest but mistaken, they be in jeopardy of being dealt with for contempt. If they do what they do deliberately they may of course be dealt with. But it is, in the formulation of procedure in this regard, proper that regard be had to other possibilities.

'I have referred to the difficulties with which an accepted form of procedure must cope and which will be likely to arise if the procedure of a full hearing be adopted. But it is, on the other hand, necessary that the procedure adopted be such as to provide a remedy in cases where the judge should not sit. There is a felt injustice where a judge decides a case in circumstances of apprehension that he may not have been completely impartial. As I have said, the decision in the Livesey case requires the observance of high standards in this regard. The procedure which, as a matter of principle, a judge should follow must ensure that the standards are observed.

'There is, I think, no procedural solution which, in every case and without qualification in the application of it, will achieve both justice and the appearance of justice on the one hand and, on the other, the due administration of court business and unnecessary cost to the other party involved.' 9 Doing my best to design a fair procedure in light of these observations, I directed the plaintiffs to provide a written submission to my associate, copied to the defendants, setting out the grounds for the second plaintiff's application that I should disqualify myself from presiding at the final hearing of the proceedings. I directed the defendants to make a written submission in response to that application. 10 On 8 August 2001, after written submissions had been received from the second plaintiff and the defendants, my associate wrote to both parties conveying my provisional view, in light of Mahoney JA's observations to which she referred, that the best method of handling the application in procedural sense would be by the process of written submissions that had already occurred. She invited each party to contact her if they wished to have the case listed for further of argument in open court, but neither party did so. 11 I initially had in mind, in view of the urgency of the matter, that I might be able to decide whether to disqualify myself during the week ending 10 August 2001. However, when I received the submissions of both parties it became evident that I should take some time for reflection over the decision and in particular, that I should carefully review the transcript for each of the hearing days, to refresh my memory and to gain a sense of how the hearing may have appeared to a reasonable observer. The interlocutory application that had led to my judgment of 6 June 2001 had been heard on 21, 28 and 30 May and 1 June 2001, and in accordance with the usual practice where unrepresented litigants appear, a full transcript had been taken of each hearing. 12 Unfortunately, it has not been possible, up to today's date, for me to obtain a full transcript of every hearing date. I understand that the court reporter who took some of the transcript is on leave. However, it would be unfair to the parties, particularly the plaintiffs, for me to delay my decision any further in the hope that the transcript can be located and provided to me when the relevant reporter returns from leave. I have decided to proceed without the benefit of a full transcript, in interests of expedition.

Principles as to apprehended bias 13 It is unnecessary, for the purpose of deciding the present application, to analyse in depth the development of the modern law concerning apprehended bias. I recently had to consider the law in Brown v DML Resources Pty Ltd [2001] NSWSC 250. For present purposes, it is convenient to set out the summary of the legal principles that I gave in that case. I said (at paragraphs 15 to 17 of my reasons for judgment dated 29 March 2001): When a question is raised about apprehended bias, it is a natural tendency of the judge concerned to disqualify himself or herself so as to avoid any doubt about the judicial process and the validity of the decision which emerges from it. In a sense, disqualification is the easy way out of the difficulty raised by an allegation of apprehended bias. But in my view it is not in the interests of the administration of justice for the judge to allow his or her natural inclination to hold sway. It is very important that an issue, once it has been raised by a party, is resolved in accordance with the law and the proper application of principle. It is inappropriate to yield as soon as the question of apprehended bias is raised, because the practical effect of doing so is to give litigants a right of veto over the identity of the judge assigned to their case. That cannot be allowed to happen.

The principles governing the question before me have been enunciated and repeated in many recent cases. Where a judicial officer has been involved in pre-trial interlocutory proceedings which have involved a judgment on the credibility of witnesses or parties, it is generally accepted that a fair-minded observer might entertain an apprehension of bias by reason of the prejudgment of those issues of credibility: Livesey v The New South Wales Bar Association (1983) 151 CLR 288; Australian National Industries Ltd v Spedley Securities Limited (1992) 26 NSWLR 411. But that is not this case. The general test for disqualification for perceived bias was stated by the High Court in R v Watson ex parte Armstrong (1976) 136 CLR 248 at 258-263, and was restated in the Livesey case at 249: 'The judge should not sit to hear a case if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that he might not bring an impartial an unprejudiced mind to the resolution of the questions involved.'

In the Spedley Securities case, Samuels JA at 26 NSWLR 411, 427 referred to the Livesey test and the qualification made by their Honours by reference to Re JRL ex parte CJL (1986) 161 CLR 342 at 352, and drew attention to the use by Mason J in the latter case of the word 'will' rather than 'might', speculating that there may have been a shift away from the Livesey principle in later judgments. … The rule against apprehended bias is not transgressed if it can be seen that any views expressed by the judge are tentative and the judge retains an open mind on the relevant question: R v Commonwealth Conciliation & Arbitration Commission ex parte Angliss Group (1969) 122 CLR 546 at 553-4; Kartinyeri v The Commonwealth (No 2) (1998) 72 ALJR 1334; Johnson v Johnson (2000) 74 ALJR 1380. 14 It is germane to the present case to set out the relevant extract from the judgment of Mason J in Re JRL ex parte CJL in full. His Honour said (161 CLR at 352): 'It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey 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 on 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 party. 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 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 a reasonable apprehension of bias by reason of prejudgment and this must be firmly established. … 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.'

The complaint to the Judicial Commission of New South Wales 15 The second plaintiff's submission, submitted on 7 August 2001, relies essentially on two grounds. The first is that he has made a formal complaint against me to the Judicial Commission, and if the Judicial Commission decides to make a detailed inquiry into the matter, I will be the defendant while he will be the applicant or informant. The submission attaches the complaint document and a covering letter to the Judicial Commission dated 29 July 2001. In effect, the submission incorporates the contentions made in the complaint document. 16 To a large degree, the complaints to the Judicial Commission are submissions criticising my findings of fact, alleging that I failed to deal or deal adequately with the plaintiffs' submissions at the interlocutory hearing, and disagreeing with my conclusions of law. Criticisms of a judge along these lines are, of course, very common. They are the substance of appeals from judgments at first instance. In this country there can be no exception taken if the criticisms are made firmly and vigorously, provided that they do not display contempt for the Court or the judicial office. For the most part, the complaint document should be treated as a robust critique of my reasons for judgment of 6 June 2001. 17 Occasionally, however, the criticisms are expressed in what seems to me to be intemperate language. For example, on page 4 of the complaint document, the second plaintiff says, disagreeing with my findings on the evidence, that I 'concealed' that there was no sworn evidence from the addressee of certain rate notices, and that this was a 'naive mistake' made only 'for the purpose of making orders against the plaintiffs' interests'. He then contends that my rejection of one of the orders that the plaintiffs sought amounted to approving criminal activity. At page 5 he says that I created some evidence and that this was 'malicious perversion of course of justice'. At page 6 he says that I 'concealed' his most important legal argument, and then that I concealed some points listed in his written submission. At page 7, rather than limiting himself to robust disagreement with my reasoning, he says that my statement could contaminate the common law. At page 8 he says that I accepted 'idiotic evidence'. 18 Under the heading 'My Expectation' on the final page of the complaint document, the second plaintiff says: 'I understand that wrong judgments are not uncommon. A wrong judgment does not necessarily mean that the judge was malicious. They are still subject to human error.

'However, it is my submission that mistakes in this judgment were targeted. Tampering and casting evidence, concealing evidence and legal arguments should not be forgiven. People take their matter to equity court with hopes of justice, fairness and relief. If a plaintiff's application is dismissed, it must be in accordance with the law. Judgment in this case is not only a miscarriage of justice, but also a perversion of course of justice.

'Why the judge was against the plaintiffs is a question to be answered. It may be for the well-known anecdotal reason that judges do not want a layman to win against a barrister. If this is the case judicial commission has to re-establish the fundamental right for citizens to represent themselves.' 19 I do not set out the passages in the complaints document that go beyond robust criticism because I take exception to them. Rather, I do so in order to present the second plaintiff's case for disqualification at its highest. Robust criticism could not disqualify the judge from hearing the complainant's case, but it might be thought that intemperate, ad hominem criticism could do so. 20 In fact, my attitude to those passages corresponds with the approach by Mahoney JA quoted above, when his Honour referred to unrepresented litigants who may, for emotional or other reasons, not fully appreciate the consequences of what they are doing or can be unable fully to control what they say. I think these passages in the complaints document show bad judgment on the part of the second plaintiff, surprising in a law student, but I have no doubt that they would not interfere with my assessment of the merits of the cases of the parties at the final hearing. The fact that I may become a 'defendant' before the Judicial Commission is not a matter that would influence my determination of the plaintiffs' case. 21 More importantly, those passages would not, in my view, give rise to any reasonable apprehension that I will or might not bring an impartial or unprejudiced mind to the resolution of the questions involved in the final hearing of this case. The fact that intemperate arguments of this kind have been made cannot, of itself, be sufficient to require the judge to disqualify himself or herself from hearing the complainant's case, otherwise a litigant could disqualify a judge simply by making a complaint about that judge to the Judicial Commission. A judge is capable of putting such allegations out of his or her mind in the further determination of the case: see Australian National Industries Ltd v Spedley Securities Ltd (1992) 26 NSWLR 411, 449. Unlike the Spedley Securities case, this is not case where the judge has made determinations based upon questions of credit prior to the final hearing.

Alleged dislike of the second plaintiff 22 The second ground for the contention that I should disqualify myself is set out in the second plaintiff's submission as follows: 'Plaintiffs contend that his honour evinced strong dislike towards the second plaintiff. The reason for this contention is the following dialogue took place during the hearing. 'While the second plaintiff was arguing that the defendants' demand of $17,000 as council rates was wrong, and that the correct sum was around $14,000, His Honour asked 'if you owe someone one million dollars and he demands one million plus ten dollars, would you fuss about the extra ten dollars' . The second plaintiff then replied 'but an extra $3000 is a substantial percentage of the actual sum of $14,000, it cannot be compared to ten dollars and one million' . His Honour then replied 'the principle is the same' . 'On another occasion when the second plaintiff informed him that he was a law student with the University of Western Sydney, he said 'we do not provide tuition, this is not a tuition class' .' 23 I recollect that some such dialogues occurred during the interlocutory hearing, but unfortunately these passages do not appear in the transcripts that my associate has been able to recover from Court Reporting. Regrettably, therefore, I have not been able to check my recollection against the transcript record. 24 My recollection is that the point of the first exchange was that, if a debtor and a creditor disagree as to whether the debtor owes $1 million or $1,000,010, the disagreement as to $10 does not justify the debtor refusing to pay the $1 million that is agreed to be owing. I chose an extreme example in order to expose the principle, and I believed at the time that the second plaintiff understood the point. It appears that I was wrong, for an accusation that this exchange demonstrated that I dislike the second plaintiff must be based on a failure to grasp the point of principle. 25 The second exchange was not, as far as I can recollect, a response by me to a simple statement by the second plaintiff that he was a law student at the University of Western Sydney. My recollection is that on more than one occasion the second plaintiff sought to obtain the Court's assistance, and I eventually pointed out that it was not the function of the Court to provide tuition to a litigant. As the defendants said in their submission, that was doing no more than stating the obvious. 26 I reject the contention that either of these exchanges, or the two of them considered together, or anything else during the interlocutory hearings, provides any basis for the submission that I evinced a strong dislike towards the second plaintiff. That is not in fact the case. I have endeavoured to describe my attitude towards him. I believe his conduct of the interlocutory hearings indicated that he is determined to the point of stubbornness and that he does not adequately understand legal concepts or procedures, and therefore that he has made an error of judgment in seeking to present his own and his wife's case. Some of the allegations in the submission and complaint document also point to a lack of sound judgment. His correspondence with respect to payment of council rates showed, as I said in my reasons for judgment of 6 June 2001, a degree of stubbornness and unreasonableness. But if a reasonable apprehension of bias arose whenever a judge regarded a litigant, or the litigant's representative, as stubborn or unreasonable or lacking understanding or sound judgment, the administration of justice would become next to impossible. Fortunately, views of that kind about a litigant do not interfere with the judge's capacity to assess impartially the litigant's case, and do not create any reasonable apprehension of bias.

Conclusions 27 For these reasons, I have concluded that there is no ground in principle for my disqualifying myself from any further hearing of these proceedings. The defendants submitted that, this being so, I should not in fact disqualify myself and, indeed, that I have a duty not to do so. The latter proposition is supported by observations of high authority, including Mason J's statement, quoted above, in Re JRL; ex parte CJL . 28 It seems to me that Mason J's statement was directed to cases where the judge's decision to disqualify himself or herself will inevitably lead to delay and the risk of prejudice to the other party. In the present case there are the some practical considerations that I should take into account, which tend to point to another solution. While there is no basis for me to disqualify myself from presiding at the final hearing, I can take into account the fact that there are two Expedition Judges in the Equity Division and the work can be allocated between us on grounds of convenience. Specifically: · if the matter comes before an Equity Expedition Judge in the near future, there will still be time to set it down for a four-day hearing to be held before the end of this year; · there is no practical reason why this case could not be shifted from my Expedition List to the Expedition List of the other judge, Windeyer J; · it is at least as likely that the case will be heard this year if it is placed in Windeyer J's Expedition List, as it would be if it remains in mine; · there is no discernible risk of prejudice to the defendants, as far as I can see, in moving their case from one Expedition List to another; · in all the circumstances, the transfer of this case to the other Expedition List, will ensure not only that justice is done, but that it appears be done, without any tangible disadvantage to the Court or the parties; · if, for some reason, it becomes desirable to transfer the case back into my Expedition List, I shall not be disqualified from hearing it. 29 Therefore, weighing up these practical considerations, I have decided not to disqualify myself from hearing the case, but nevertheless to stand it over to the next Expedition List before Windeyer J. I shall make an order accordingly. I shall hear submissions as to whether I should make any order regarding the plaintiffs' notice of motion for transfer to the Common Law Division and jury trial, and as to costs of the present application. * * * * * * * * *

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