Oknalux Pty Ltd v Wilczynski

principles 5 Paragraph 1 of the interlocutory application seeks an order that I recuse myself on the basis of bias. The application does not differentiate between actual or apprehended bias, although given the respondents are self-represented, that is not intended to be a criticism of them.

Actual bias 6 A claim of actual bias requires cogent evidence: R v Australian Stevedoring Industry Board; Ex Parte Melbourne Stevedoring Co-Pty Ltd [1953] HCA 22, (1953) 88 CLR 100, 116 (Dixon CJ, Williams, Webb and Fullagar JJ). 7 In Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1990) 81 FCR 71 (Wilcox, Burchett and North JJ), North J described actual bias in these terms: at p 134. Actual bias exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant. (Citations omitted) 8 In R v Rich (Ruling No. 21) [2009] VSC 32, [7] Lasry J said: A party asserting actual bias on the part of a decision-maker carries a heavy onus; the allegation must be "distinctly made and clearly proved". It has been said, and I agree, that a finding of bias is a "grave matter", and cannot be made lightly. Apart from corruption, it is hard to think of a more serious allegation that can be made against a judge. (Citations omitted) 9 In Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17, (2001) 205 CLR 507, 519 at [35]-[36], Gleeson CJ and Gummow J referred with approval to statements made by French J (as his Honour then was) at first instance in that matter in which his Honour had cited with approval judicial statements that actual bias involves a pre-judgement and an applicant must show that the decision maker "had a closed mind to the issues raised and was not open to persuasion by the applicant's case" and that actual bias exists where "the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant". 10 In Zaltni v Minister for Immigration and Multicultural Affairs [2000] FCA 399, the Full Court (Einfeld, Lindgren and Tamberlin JJ) said in relation to the evidentiary requirement for a finding of actual bias: at [59] A finding of actual bias should not be made lightly and cogent evidence is required; cf R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116 per Dixon CJ, Williams, Webb and Fullagar JJ; Sun (FC) at 123; Jia Le Geng [[1999] FCA 951] at [104] per Cooper J and cases there cited. On the other hand, too high an evidentiary requirement might make impossible the presentation and proof of a justifiable case. 11 As the authorities referred to above show, the respondents must demonstrate by reference to cogent evidence that I have pre-judged the action such that as noted by Gleeson CJ and Gummow J in Jia Legeng referred to at [9] above, I have "… a closed mind to the issues raised and am not open to persuasion by [the respondents] case"; or I have "… prejudged the case against [the respondents] or acted with such partisanship or hostility as to show that [I] had a mind made up against [the respondents] and was not open to persuasion in favour of [the respondents]" (brackets provided).

Principles - apprehended bias 12 The position is different with apprehended bias. In Charisteas v Charisteas [2021] HCA 29; (2021) 95 ALJR 824 the High Court said: at [11]-[13] 11. The apprehension of bias principle is that "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". The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial - that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, "it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits"; and, second, there must be articulated a "logical connection" between that matter and the feared departure from the judge deciding the case on its merit. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed. 12. As five judges of this Court said in Johnson v Johnson, while the fair-minded lay observer "is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice". 13. Ordinary judicial practice, or what might be described in this context as the most basic of judicial practice, was relevantly and clearly stated by Gibbs CJ and Mason J in Re JRL; Ex parte CJL in 1986 by adopting what was said by Mcinerney J in R v Magistrates' Court at Lilydale; Ex parte Ciccone in 1972: "The sound instinct of the legal profession - judges and practitioners alike - has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined." (Citations omitted) 13 In Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337, [6], (Gleeson CJ, McHugh Gummow and Hayne JJ) the Court said: Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), 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. 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. It is convenient to refer to it as the apprehension of bias principle. (Citations omitted). 14 Their Honours continued: at [19] Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.

The parties' submissions and consideration 15 In support of their application, the respondents read and rely upon: (a) The affidavit of Joseph Wilczynski sworn and filed on 21 March 2022 (first Wilczynski affidavit); and (b) The seventh affidavit of Joseph Wilczynski sworn and filed on 10 August 2022 (seventh Wilczynski affidavit). 16 When the seventh Wilczynski affidavit was filed, a concern was raised by a Registrar of the Court that the seventh Wilczynski affidavit may contain matters arising out of a mediation between the parties held in the Supreme Court of South Australia earlier this year. On that basis, when the seventh Wilczynski affidavit was filed, pursuant to s 37AG of the Federal Court of Australia Act 1976 (Cth), I ordered that the affidavit be placed in a sealed envelope and be suppressed on the grounds that it was necessary to prevent prejudice to the proper administration of justice. 17 When the matter returned to Court on a case management hearing on 30 August 2020, I was informed by the applicants that the seventh Wilczynski affidavit refers to offers made at the mediation. The applicants sought and were granted the opportunity to make written submissions as to whether the seventh Wilczynski affidavit should be read in full. 18 On 5 September 2022, the applicants provided a redacted copy of the seventh Wilczynski affidavit and advised my Chambers that they had no objection to the redacted version being read on this application. 19 The respondents objected to the redactions. In an email sent to my Chambers on 7 September 2022, Mr Wilczynski asserted he had not signed any confidentiality undertaking at the mediation. 20 Section 131(1) of the Evidence Act 1995 (Cth) provides that subject to the exception in s 131(2), none of which are presently relevant, evidence of settlement negotiations is not admissible. 21 Further, r 131.1(1) of the Uniform Civil Rules 2020 (SA), which applies to South Australian Supreme Court mediations, provides: (1) Subject to the following subrules, communications between the parties or between a party and a facilitator that are part of an alternative dispute resolution process must be treated as confidential and not disclosed to the Court. 22 Although the rule applies to State Courts, I have no hesitation in concluding that the import of the rule is to maintain confidentiality in general. That is because the whole basis of mediation is confidentiality, subject of course to specific exceptions. 23 I am not prepared to read the unredacted seventh Wilczynski affidavit when one party contends the affidavit contains confidential material arising out of the mediation and thus evidence of settlement negotiations, contrary to s 131 of the Evidence Act 1995 (Cth). 24 Accordingly, I have read only the first Wilczynski affidavit and the redacted seventh Wilczynski affidavit. 25 To the extent Mr Wilczynski wishes to raise any matter he says should not be confidential at the trial of this matter, I will consider any such application at the time. 26 A further matter raised at the case management hearing on 30 August 2022 was the respondents' non-compliance with orders 2 and 3 of the Court's orders made 30 March 2022 which required discovery of certain documents by 6 May 2022. As I have noted, the matter had been the subject of mediation in the Supreme Court and in the circumstances I was prepared to give the respondents further time to comply with those orders. I extended the time for compliance with orders 2 and 3 to 27 September 2022. Mr Wilczynski insisted that I determine the question of my recusal prior to extending the time to comply with orders 2 and 3. This matter is listed for trial on 6 March 2023 and there remain questions of expert reports and non-party discovery, both of which are contingent upon the respondents complying with orders 2 and 3. I indicated to Mr Wilczynski that if I decided to recuse myself from hearing this matter he would be able to raise the question of whether the respondents need to comply with orders 2 and 3 with the new judge.

The recusal application 27 At the case management hearing on 30 August 2022, I inquired of the respondents if they wished to make any oral submissions in support of their interlocutory application. Mr Wilczynski, who as I have noted, does not require a Polish interpreter, informed the Court that he did not wish to make oral submissions on the application and was content to rely on the application and the two affidavits he identified. 28 The applicants referred me to Ebner and submitted that there was no basis upon which I should recuse myself. 29 The parties were content for me to determine the application on the papers. On that basis, I indicated to the parties that I would reserve my decision. 30 When the various matters in paragraph 1 of the application are teased out, the respondents complain that: (a) I have ignored evidence of the respondents' innocence and arguments; (b) The respondents have been stripped of their right to defend themselves against false slander; (c) The respondents have been exposed to a lengthy process, stress and significant cost with "The court trial is conducted only on the basis of the suggestions and false statements of Ms Matejko (the second applicant), disregarding facts and independent evidence (including court and official evidence)."; and (d) I was a judge of the District Court of South Australia which may influence my decision in this case. 31 Prior to dealing with the matters raised in paragraph 1 of the application, it is important to keep in mind that the matter is still at the interlocutory stage. The matter is a defamation action and the trial has been listed to commence on 6 March 2023 for five days. 32 I have endeavoured to explain to the respondents on prior occasions that the question of whether or not they have any liability to the applicants will be determined at the trial. Evidence going to the merits of the matter is not presented at this stage of the proceedings. 33 Against that background, the reference by the applicants in paragraph 1 to ignoring evidence and being stripped of their right to defend themselves merely reflects the stage of the proceedings. It is not the case that evidence has been ignored nor have the respondents been stripped of the right to defend themselves. 34 The reference to being exposed to a lengthy process, stress and cost such that the "Court trial is conducted only on the basis of the suggestions and false statements of Ms Matejko" (the second applicant) misunderstands the stage of the proceedings. Again, I am not being critical of the respondents in making that statement, however as I have endeavoured to explain to them on a number of occasions, the case management hearings are not the trial of the matter. It is therefore fundamentally wrong to assert that the "trial is conducted only on the basis of the suggestions and false statements of Ms Matejko". 35 The reference to the District Court of South Australia is a reference to a number of paragraphs in the first Wilczynski affidavit, specifically [7.6]-[7.11], where Mr Wilczynski deposes as to matters before a judge of the District Court. Is not clear to me why that might influence me when I have had nothing to do with the proceedings in the District Court of South Australian.

Conclusion 36 On the issue of actual bias, there is no evidence, far less cogent evidence, that I have pre-judged the action such that I have a closed mind to the issues raised, that I am not open to persuasion by the respondents' case, that I have prejudged the case against the respondents or have acted with such partisanship or hostility as to show that I had made up my mind against them and am not open to persuasion in their favour: see Gleeson CJ and Gummow J in Jia Le Geng. 37 On the issue of apprehended bias, there is no basis to support a contention that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the question I am required to decide. 38 I decline to recuse myself from this matter.

Paragraph 2 - Orders made 30 March 2022 39 Paragraph 2 of the respondents' application refers to orders 2 and 3 made on 30 March 2022 which were made following argument that day. Those orders require the respondents to make discovery of certain documents relating to the publication of the book "Taraplessa" which is the subject of these proceedings. White J had made a similar order to order 3 against the respondents on 28 June 2021. The respondents have not complied with White J's order. 40 Paragraph 2 of the application appears to not accept the fact that I have made those orders but also appears to suggest that the making of the orders is a manifestation of actual or apprehended bias. 41 Two points arise: first, the respondents are required to comply with the Court's orders; second, it is for the reasons I have set out above that I do not consider either of the respondents' contentions as to actual or apprehended bias have been made out.

Conclusion 42 The respondents' application that I recuse myself from this matter is refused. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan.