Onakoya v The Sydney Children’s Hospitals Network (No 2)

Representation: Counsel:
D Sibtain SC (Defendant)
Solicitors:
Hicksons Lawyers (Defendant)

File Number(s): 2023/347867

Publication restriction: N/A

JUDGMENT

1. HIS HONOUR: In this matter, the plaintiff, Matthew Onakoya, sues the Sydney Children’s Hospitals Network. Without being too precise, the cause of action is in defamation, and at least at one stage, was or seemed to be relating to negligence. Mr Onakoya is self-represented. The Court is here dealing with an application made by the plaintiff that I disqualify myself from hearing the matter or hearing the matter in any substantive manner.

2. On 29 August 2025, the plaintiff sent a letter addressed to the judge, by email, to the Enquiries Desk of the Court. I make it clear that no complaint is made about the manner of sending the letter nor its content. The letter is written extremely respectfully, if not overly so. The matter has been dealt with by me as a consequence of my responsibility for the Defamation List of the Court.

3. When the matter first came into the Defamation List on 29 November 2024, I knew nothing about the case, except that there had been a further amended statement of claim filed but no defence. [1] The matter, because of its reference to negligence initially, was the subject of a preliminary application before another judge.

4. The matter was stood down in the list to suit the convenience of the parties and to permit the Court to familiarise itself with the proceedings.

5. Ultimately, the Court gave directions for the filing of written submissions relating to a strike-out motion by the defendant. The Court referred the plaintiff, pursuant to the Uniform Civil Procedure Rules (UCPR) r 7.36, to the Registrar for referral to the pro bono panel for legal assistance. The timetable set for the written submissions concluded on 13 December 2024, when the matter was relisted.

6. Ultimately, by consent, the listing of 13 December 2024 was vacated, and leave was granted to file a further pleading. The matter returned to the Court on 25 March 2025, following the filing of the proposed pleading.

7. When the matter returned to the Defamation List on 25 March 2025, I informed the parties of a situation which I described as, in my view, not being a problem. The transcript reads:

“HH: Can I just tell everybody, I don’t think it’s a problem but, I have a daughter who works for the Sydney Children’s Hospital. But at Randwick. Not at Westmead. Does that affect anybody? Does anyone want to make any – I just thought I would let you know.

Rasmussen [then counsel for the plaintiff]: I’m grateful. It doesn’t affect us.

HH: No.

Rasmussen: This is just a pleading argument.

HH: I understand.” [2]

8. Further directions have been held, which included a refusal of the leave to file the Proposed Further Amended Statement of Claim and the grant of leave to file a Second Proposed Amended Statement of Claim by 4 July 2025. Eventually, the matter came before the Court on 19 September 2025 at which time the issue of the disqualification application in the correspondence of 29 August 2025 was discussed.

9. The Court reserved judgment on the disqualification application and otherwise made directions for the hearing of the defendant’s motion to strike out and a hearing of the plaintiff’s motion for default judgment. Directions were made for the filing of material, and the matter is listed for the hearing of those two motions on 14 November 2025.

Principles on disqualification

10. The general principle is that a judge, or tribunal member, should not hear a case if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial or unprejudiced mind to the resolution of the questions involved in it. [3]

11. The principle applies in such a way that a judicial officer is not entitled to disqualify herself or himself just because application has been made and it is a more convenient course. Judicial officers are under a duty to hear and determine matters allocated to them and are required to sit and hear such matters unless there is good reason, such as apprehended bias, not to do so. [4]

12. In Polites, supra, the High Court issued mandamus requiring a member of a tribunal to sit and hear a matter after the tribunal member had determined that there was a reasonable apprehension of bias and disqualified himself on the basis that he had previously advised one of the parties before the tribunal on an issue relevant to the proceedings. Thus, whatever be the most convenient course for me personally, it is necessary for me to determine whether there is a reasonable apprehension of bias.

13. Actual bias is not suggested. The reasonable apprehension must be to the effect that I could not bring an impartial mind to the determination of the issues between the parties in the proceedings.

14. In order for there to be a reasonable apprehension of the relevant kind, it is necessary for a fair-minded lay observer, properly informed, reasonably to apprehend that I might not bring an impartial mind to the resolution of the issues in the proceedings. [5]

15. In Ebner, supra, the High Court said:

“The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.” [6]

16. One of the difficulties that has been discussed in the cases is that which is to be presumed is the knowledge of “properly informed fair-minded lay observer”. It has been described [7] as the knowledge of the “ordinary reasonable citizens on the Emu Plains Omnibus”. [8]

17. There is much to be said that in testing the question of apprehended bias, placing too great a sophistication in the assumed knowledge of the hypothetical bystander translates the test to one that does not relate to the properly informed fair-minded lay observer but to the reasonable apprehension of an on-looker judge or legal practitioner. However, it must be remembered, particularly in the current circumstances, that it is the conduct of the judge or the relationship of the judge that is scrutinised for prejudice and/or a lack of impartiality. The bias or apprehension of it must be “real”. As the High Court said, albeit in circumstances where the test for bias was slightly different:

“Bias must be ‘real’. The officer must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons.” [9]

18. In the Melbourne Stevedoring Company case, the test applied was “high probability” which is no longer the situation, but that change in test does not affect the proposition that the bias must be real.

Consideration

19. Properly understood, the rule on apprehended bias is a rule that seeks to enhance the integrity of the Court. Courts exercise their authority on the basis of their accepted integrity, independence and fairness. When independence, fairness, impartiality and integrity are absent, or perceived to be absent, the Court’s authority, and the administration of justice, is undermined.

20. The defendant, the Sydney Children’s Hospitals Network, is a single legal entity, according to the letter from Mr Onakoya, which I accept. It conducts two hospitals: one at Westmead, the conduct at which is the subject of these proceedings; and one at Randwick. There may be others of which the Court is unaware.

21. The stated relationship that is said to give rise to an apprehension of bias is that, as the Court notified the parties, the judge’s daughter is an employee of the defendant, working at a different hospital to the one which concerns these proceedings. No evidence or suggestion has been made that any finding that might be made by the Court, however constituted, in these proceedings would affect that employment or would affect the operation of the hospital at Westmead, let alone Randwick.

22. It is impermissible, in my view, for a judge who is the subject of a claim of apprehended bias to descend into any factual contest that may be thought to exist. In this case, there is no factual contest. It is the judge who disclosed the relationship with an employee of the defendant. There is no evidence as to the seniority of the employee. There is no evidence of the role of the employee and its connection with anything that occurs at Westmead. Moreover, the claim for bias was put, orally, in a manner that must inform the result of the application. The plaintiff said:

“… okay, because at the moment if your Honour make [sic] a decision in favour of the plaintiff, it may look like, well, his Honour doesn’t want the situation where people would think because his daughter work [sic] for the defendant, so … (not transcribable) … be on the side of the defendant. And, again, if your Honour make a decision in favour of the defendant, it will be, what do you expect, you know … (not transcribable) … that I offer them [sic]. So they’re put in a situation where, you know, the best option is for, to consider … (not transcribable) … from the, and let a different judge look at the case entirely.”

23. I understood the suggestion that there may be a perception that, were I to decide the question in favour of the plaintiff, I may have done so in order not to seem biased, and, were I to decide the case in favour of the defendant, I would be doing so for the purpose of not harming my daughter’s employment. On one view, such a fear is not an apprehension of bias.

24. It is not an apprehension that the judicial officer will deal with it otherwise than on the merits of the case presented. Rather, it is a fear that people who are made aware of the judgment may apprehend bias. Nevertheless, I consider that the issue is the same and I will deal with it in that way.

25. Before dealing with that application, it is necessary to deal with that which fell from the defendant on this issue. First, the defendant neither supports nor opposes the application. The defendant takes the view that the application is a matter for the Court. In the circumstances of these proceedings, that is a proper and most appropriate course.

26. Secondly, the defendant has put some submissions for the assistance of the Court. The defendant draws attention to the passage, extracted above, in the transcript of 25 March 2025 and informs the Court that it must determine whether the plaintiff was there waiving any objection to the Court, as presently constituted, hearing and determining the proceedings.

27. There is much authority for the proposition that an objection on the basis of perceived bias or actual bias must be taken at the first opportunity. It is unnecessary to reiterate the authority.

28. However, I understand the passage and the comments of counsel, then appearing for the plaintiff, to be a statement that the information raised by the Court did not affect the plaintiff at that time, in part, because it was “just a pleading argument”. As made clear by the Court, the application for disqualification relates to any substantive matter which, in my view, would include the hearing of a motion to strike out the proceedings (as distinct from some pleading issue). [10]

29. I do not consider that the application for disqualification or any argument as to perceived bias had been waived at the time by counsel appearing for the plaintiff, other than for the limited purpose of the pleading argument then before the Court, and I do not consider that there has been any inappropriate delay in making the application. The application is open to the plaintiff.

30. However, I do not consider that the circumstance that I have a daughter who happens to be an employee of the defendant is, in and of itself, sufficient to satisfy the test of perceived bias. It has not been suggested and there is no evidence that would require a finding to the effect that my daughter goes by the same surname, her employment would in any way be affected by any finding the Court might ultimately make either on any motion or in the substantive hearing, or that my daughter was involved in any aspect of the issues between the parties in these proceedings, either directly or indirectly. Further, there is no suggestion that my daughter would be affected by any determination of any issue between the parties in these proceedings.

31. It is then another step for the plaintiff to satisfy the Court that, if my daughter were shown to be affected, it would affect the judgment of the Court and give rise to perceived bias. Such a circumstance would be very different from the current circumstance and the nature of the evidence before the Court.

32. Foregoing comments should not be taken, in any way, to be a criticism of the plaintiff. The application for disqualification has been made most properly and appropriately. More importantly, one of the aspects of defamation proceedings is that a plaintiff seeks vindication of their reputation and redress at their damage. If it were reasonably perceived that the determination by a judge of the Court of the merits of the application suffered from bias, in that the merits were not the determining factor for the result, then the vindication otherwise provided to the plaintiff by a successful hearing would be undermined.

33. It is neither inappropriate nor improper for an application to be made of that kind on the basis that it was made. Nevertheless, the application is unsuccessful.

34. The Court makes the following orders:

35. Application for disqualification refused.

36. Costs will be costs in the cause.

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Endnotes

Tcpt, 29/11/24, ln 25.

Tcpt, 25/03/25, p 3, lnn 18-27.

Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294; [1983] HCA 17 at [7] (Mason, Murphy, Brennan, Deane and Dawson JJ); R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 258-263.

Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; Re Polites; Ex parte Hoyts (1991) 173 CLR 78.

Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 at 344; [2000] HCA 63.

Ibid at CLR 345, [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

S&M Motor Repairs v Caltex Oil (1988) 12 NSWLR 358 at 376 (Kirby P).

A phrase adopted by Kirby J (as he became) in Johnson v Johnson (2000) 201 CLR 488 at 509, [54].

R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116, cited with approval by Kirby J in Johnson, supra, at 498.

Tcpt, 19/09/25, p 11, lnn 31-33.

Amendments

17 June 2026

Coversheet - changed (No 2) to (No 3) in case name.