Lambourne v Baker (No 7)

File Number(s): 2019/407870

JUDGMENT

1. This judgment deals with an application foreshadowed by Marc Lambourne that I recuse myself. The background to his application is as follows.

Mr Lambourne’s application for review of orders made by Price AJA

2. On 25 March 2025, the Court, constituted by Ball JA, Griffiths AJA and me, heard a notice of motion filed by Mr Lambourne on 20 December 2024 for review pursuant to s 46(4) of the Supreme Court Act 1970 (NSW) of orders made by Price AJA on 25 November 2024.

Preliminary matters

3. Previously, on 21 February 2025, when the matter came before the Registrar, directions were made for the filing and service of written submissions. The Registrar listed the matter for hearing on 25 March 2025 with an estimate of two hours. Mr Lambourne did not agree with this estimate but the estimate was noted as it reflected an assessment of the time which would reasonably be required to hear the motion, having regard to its nature and ambit.

4. Prior to the hearing of the notice of motion, the Court assembled the relevant materials for the notice of motion, which largely comprised previous judgments of this Court in the matter, the notice of motion which was to be heard on 25 March 2025 and the transcript of the hearing before Price AJA, whose decision was the subject of Mr Lambourne’s application for review. The materials also included copies of the parties’ detailed written submissions which had been filed following directions.

The hearing of the application for review

5. The hearing of Mr Lambourne’s motion commenced at 10.15am on 25 March 2025. Mr Lambourne appeared for himself and sought, and was granted, leave to appear for the other two applicants. Mr Cheshire SC appeared for the respondents to the motion. Mr Lambourne addressed the Court orally and also with reference to his written submissions. Mr Cheshire responded orally and also by reference to his written submissions. At about 11.45am, when Mr Cheshire had concluded his submissions, Mr Lambourne sought an adjournment to collect his thoughts for his reply submissions. The matter was stood down until midday to enable him to do that.

6. When the Court resumed at midday, Mr Lambourne sought leave to provide further written submissions. That leave was refused as all that remained was reply submissions and Mr Lambourne had proved himself, in the course of the morning, to be composed and capable of making oral submissions from the bar table. I invited Mr Lambourne to make oral submissions in reply and also in response to the respondents’ application for an order that costs be paid in a gross sum. Mr Lambourne indicated that he did not wish to avail himself of the opportunity to address either of these matters. Accordingly, the Court reserved its decision.

Mr Lambourne’s application for recusal on the grounds of apprehension of bias

The foreshadowing of the application by email

7. On 26 March 2025, the Court informed the parties that it would hand down the Court’s judgment at 10.15am on 27 March 2025. At 12.49pm on 26 March 2025, Mr Lambourne foreshadowed by email to Griffiths AJA’s chambers an application that I recuse myself on the grounds of apprehension of bias (a similar application was foreshadowed in respect of Griffiths AJA). In his email, Mr Lambourne said:

“I confirm receipt of your email advising that his Honour would be handing down the Court’s judgment tomorrow at 10.15 am.

I note:

1- This matter was set down for hearing late on Friday afternoon on 21 February 2025, less than than [sic] 20 business days before the date fixed for hearing, being 25 March 2025.

2- The matter was unilaterally set down for hearing Chambers by Registra[r] Onisforou who should not have been dealing with the matter [in] any event because he had been trying to eradicate these proceedings from the Court’s List from the first minute I appeared in front of him at a first Directions Hearing on 11 November 2024.

3- My submissions were filed early on 21 March 2025, only two (2) working days before the hearing set down for 25 March 2025.

4- I had made the point to the Principal Registrar and Registrar Onisforou (because he refused to recuse himself) that there was no basis for the Court to assume that this would be a case of less than two (2) hours because it involved consideration of the voluminous amount of documents before the President’s Court on 9 September 2024 as well as the several hearings before Price AJA in November 2024 which by themselves had taken more than two (2) hours.

5- Registrar Onisforou replied that the issue would be reconsidered once all submissions had been filed.

6- I therefore expected to be told that the case would need to be listed for a full day, but that advice w[a]s not received.

7- I was taken by surprise at the start of the hearing when her Honour the Presiding Judge that the Court would be relying on an “Index” which I had not been shown.

8- The Court did not ask whether there was any other document upon which I may wish to rely.

9- When I started to explain my case, His Honour Griffiths AJA put me off my train of thought by asking: *“*What evidence do you have that the ‘Headnote’ (which I had been criticising) was prepared by the Court?**”

It is only this morning that I realised that the Headnote was sent to me by email directly by the President’s Associate and it already contained the Headnote.

It would seem, with the greatest of respect, that his Honour’s question could have no legal possible bearing on the case; albeit it may establish that I am not good at thinking on my feet under pressure before a Court which seemed to be prepared to hear the case without relevant documents and further against Mr Cheshire of Senior Counsel who managed to satisfy the Court on 9 September 2024 that an order (namely order (3)) made on 24 September 2021 concerning costs actually meant that there had been “no order as to costs” as Mr Cheshire was suggesting.

I addressed this issue in my 21 March 2025 submissions but the Court did not address the issue.

10- The Court did not take the usual morning adjournment and was obviously focused on completing the hearing within the two hours.

11- The Court refused to allow me some time to gather my thoughts and provide written submissions in reply.

12- Her Honour, the Presiding Judge let slip that the Court was anxious to have these proceedings finalised but quickly tried to fix her misstatement by trying to clarify it.

I formally ask for access to a copy of any sound recording of the 25 March 2025 hearing, or at least that the recordings be kept for future reference.

Formal Application

I now formally ask the Court not to hand down its judgment until Friday 28 March 2025 so that I may have time to make a formal application for Justices Adamson JA and Griffiths AJA to recuse themselves from themselves from any further participation in the hearing, including the publication of the Reasons.”

8. These applications for recusal (in respect of Griffiths AJA and myself) were listed for hearing before the Court at 10.15am on 27 March 2025 (being the time and date on which the matter was listed for judgment). The Court refused Mr Lambourne’s application for an adjournment of his application for recusal, for the reasons set out in Lambourne v Baker (No 10) [2025] NSWCA *.

Consideration of the application that I recuse myself

9. Mr Lambourne indicated that he did not want to press the application for recusal in circumstances where there was, in his submission, a denial of procedural fairness in my not allowing him an adjournment to put on written submissions. However, he also raised further matters in addition to those identified in his email, including that I had told him that he was wasting time and also that I was concerned with finality. He submitted that I would only be concerned with finality if I had decided that the respondent ought win because, if the applicants were successful, there would be no finality.

10. Notwithstanding his indication that he did not press the application, I considered it to be appropriate, matters germane to apprehended bias having been raised, including in his email (extracted above), to treat the application as having been made.

11. After considering his application, I dismissed the application and indicated that I would provide reasons in due course. What follows are my reasons for dismissing the application in so far as it relates to myself.

12. The relevant governing principle where an allegation of apprehended bias is made, is, as stated by the High Court in Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner) at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ, Callinan J agreeing):

“… a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.”

(Footnote omitted.)

13. The application of this test requires the following two steps (Ebner at [8]):

14. an identification of what it is said might lead a judge to decide a case other than on its legal and factual merits; and

15. a logical connection between that matter and the feared deviation from the judge deciding the case on the merits.

16. The fair-minded lay observer is taken to be aware of the legal, statutory and factual context in which the decision is to be made: Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [23] (Kiefel, Bell, Keane and Nettle JJ).

17. The grounds raised by Mr Lambourne against me were that I, as presiding judge, did not take the mid-morning adjournment, refused his application to put on further written submissions and sought to enforce the time estimate of two hours. He also took exception to my having a folder of documents (the contents of which I identified to him) of which he had not been given a copy. Further, I also understood him to submit that I was anxious to finish the hearing, was concerned that he was wasting time and referred to the interests of finality. He submitted that these amounted to an indication that I had pre-judged his matter and was not prepared to listen to his submissions.

18. A fair-minded lay observer (as postulated in Ebner) would be taken to appreciate the following:

19. the Court of Appeal usually commences hearings at 10.15am and sits until 12.45pm and does not take a morning adjournment;

20. both Mr Lambourne and Mr Cheshire had filed detailed written submissions in which their arguments in support of (in the case of Mr Lambourne) and against (in the case of Mr Cheshire) the motion were set out;

21. the Registrar of this Court did not require Mr Lambourne to prepare a court book for his notice of motion, thereby casting the obligation on this Court to assemble the relevant documents, including previous judgments of the Court in the matter, the notice of motion, affidavits filed in respect of the notice of motion and the transcript of the hearing before Price AJA (each of which were on the Court file);

22. Mr Lambourne had either prepared (in the case of documents filed on behalf of the applicants), been served with (in the case of documents filed on behalf of the respondents) or been provided with (in the case of judgments of the Court) all of the documents to which the Court had recourse;

23. a headnote does not form part of the reasons of the Court and therefore cannot form the basis for a challenge to the orders made by the Court;

24. a judicial officer who informs a litigant that he may be wasting time by addressing matters not germane to the issue before the Court (such as a headnote in a judgment) may be endeavouring to ensure that the time of the Court and the parties is not wasted by irrelevant submissions;

25. Mr Lambourne had made detailed oral submissions in chief (for over an hour), to which Mr Cheshire had responded (in significantly less time), principally by reference to his written submissions;

26. the apparent reluctance of judges on a Court to accept arguments put without question does not equate to apprehended bias since judges are entitled to question matters put to them in order to elucidate or test a litigant’s submissions;

27. there is a public interest in matters being brought to finality and in hearings being completed within the time estimated; and

28. the longevity of the matter favoured its being brought to a conclusion, including in relation to costs.

Conclusion

17. In these circumstances, I was not persuaded that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the factual and legal merits of either Mr Lambourne’s motion for review or Mr Cheshire’s application for costs to be fixed in a gross sum. Nor was I persuaded that there was any logical connection between the matters raised by Mr Lambourne (which largely concerned use of Court time and the smooth running of the hearing) and the alleged apprehension. Accordingly, I dismissed the application for recusal.

Orders

18. The orders which were made on 27 March 2025, for which the reasons are given above, were as follows:

19. Dismiss the application that Adamson JA recuse herself.

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