Partington v Pacific Link Community Housing Ltd

Judgment (ex tempore) 1HER HONOUR: Before me in the referrals list today are two applications in this matter. There is an application by the first respondent, Pacific Link Housing Limited, by amended notice of motion dated 4 March 2013 for orders falling within three main categories. The first is an order for security for costs pursuant to r 51.50 of the Uniform Civil Procedure Rules 2005 (NSW). The second set of orders relates to orders sought for the limitation of correspondence between Mr Partington (the appellant), and the first respondent or various representatives of the first respondent. And the third is for directions in relation to compliance with requirements set out in the Uniform Civil Procedure Rules in relation to the appeal/application for leave to appeal brought by Mr Partington. There is an application by Pacific Link under its amended notice of motion for costs in relation to the application. 2The second notice of motion (which during the course of submissions was addressed first) is the notice of motion brought by Mr Partington filed on 28 February 2013, in which, broadly speaking there are two sets of orders sought. The first relates to Mr Partington's application for relief by way of reinstatement into a property at North Gosford from which he was evicted (and he contends unlawfully evicted) and which is the subject of his appeal (including arrangements for the replacement of his property, the repayment of costs for storing his property, provision of keys and for the rent to be calculated at a particular level in accordance with a Residential Tenancy Agreement entered into with Pacific Link) pending a hearing in July this year of the appeal that Mr Partington has brought. 3The second category of orders in Mr Partington's notice of motion relates to the orders sought by Mr Partington that certain members of Pacific Link's staff not approach or have contact with him in any way other than through the first respondent's acting legal representative until the hearing of the appeal. 4Mr Partington also opposes the application in relation to security for costs that Pacific Link seeks and has made a general application for "all other remedies equitable and appropriate under the premises". 5The background to the present dispute involves a fair degree of contention between the respective parties and I propose to summarise it only relatively briefly. Mr Partington entered into a Residential Tenancy Agreement with the first respondent. A copy of that Residential Tenancy Agreement is attached to the materials on which Mr Partington relies. It was entered into with rent commencing every fortnight from 11 January 2008. It was for the term of three months beginning on 11 January 2008 and ending on 11 April 2008. It contained provision for the continuation of the rental agreement at the end of the term of the fixed term of the rental agreement in the following terms: "At the end of the term the tenant can stay in the residential premises at the same rent (or at an increased rent if the rent is increased in accordance with the Residential Tenancies Act 1987) but otherwise under the same terms unless or until the agreement is ended in accordance with the Residential Tenancies Act 1987." 6The fixed term of the rental agreement came to an end in accordance with its terms on 11 April 2008 and thereafter it continued as a continuing agreement in accordance with its terms. Mr Partington contends, and Pacific Link Housing disputes, that over the period of his tenancy for about five years that Mr Partington was not in breach of his rental obligations under the lease and that there were no complaints in relation to Mr Partington. It is not appropriate for me to comment or consider the merits of that factual dispute on this occasion. 7What then occurred, and what has precipitated the current proceedings, is that an application was made by Pacific Link to the Consumer, Trader and Tenancy Tribunal after disputes between Mr Partington and Pacific Link as to certain demands for increased rent had been made and not complied with by Mr Partington, who maintained that he was entitled to see the basis on which the rental increases had been made. 8The application by Pacific Link to the Consumer, Trader and Tenancy Tribunal was for an order for the termination of the Residential Tenancy Agreement in accordance with s 87 of the Residential Tenancies Act 2010 (NSW). That, I interpose to note, raises one of the issues that has been raised by Mr Partington in the proceedings in the District Court, and which he seeks to agitate on appeal, namely the validity of the Residential Tenancies Act 2010 and its enforceability. (Notice of a constitutional matter has been served by Mr Partington.) 9Suffice it to note for present purposes that the application that was made to the Tribunal led to an order made on 29 October 2012 for the termination of the lease in accordance with the 2010 legislation. The Tribunal's orders noted that the Tribunal was satisfied in accordance with s 89(5) of that Act that the tenant had frequently failed to pay rent owing for the residential premises. An order for termination and possession was made on 29 October 2012. Possession was to be given to the landlord on 9 November 2012. A daily occupation fee was ordered for the period from 30 October 2012 to the date possession was given. 10Mr Partington sought a stay in relation to the operation of the orders made by the Tribunal. That application for a stay was rejected. Mr Partington then brought an appeal to the District Court in relation to the matter. A stay of the Tribunal orders was granted by the District Court. That stay was extended through until 4pm on 13 December 2012. The matter came on for hearing before Judge Robison on 13 December 2012. Mr Partington appeared before Judge Robison later in the day when the hearing commenced. It was part heard and stood over to 14 December 2012. There was no appearance by Mr Partington on 14 December 2012. On that occasion an application was made, and granted by Judge Robison, for the dismissal of the District Court proceedings pursuant to r 13.4 of the Uniform Civil Procedure Rules. His Honour delivered an ex tempore judgment and dismissed the proceedings invoking each of rules 13.4(1)(a), (b) and (c): the power to dismiss proceedings that are frivolous or vexatious; the power to dismiss proceedings where the Court or Tribunal is satisfied that there is no reasonably arguable cause of action or defence; and the power to dismiss proceedings that are considered to be an abuse of process. 11Mr Partington applied for urgent injunctive relief in this Court and Hoeben JA on 14 December 2012 dismissed his application for a stay. Mr Partington was evicted (he says unlawfully) from the premises on 19 December 2012. There is evidence that he re-entered the premises on two occasions after his eviction and that Pacific Link had to re-take possession of the premises with the assistance of the police on the first occasion, and to secure the premises again after the second occasion. 12There is evidence on the application before me that since then (in January this year) the premises have been re-let to persons who are eligible for community housing in accordance with the social housing policy. (I should add that Mr Partington was a tenant of the premises pursuant to that same social housing policy and he relies on that fact, and Pacific Link's awareness of that fact and of the fact that he is on a disability pension with little or no income, as a basis on which to resist the application for security for costs.) 13Pacific Link refers to the fact that there has been no payment of any rent or other moneys in respect of the premises from mid-September 2012 until 19 December 2012. I understand that there has been an application before the Tribunal for orders in that regard that has recently been determined against Mr Partington. Mr Partington has informed me that he has lodged an appeal from that decision. 14Annexed to Mr Gavin's affidavit of 18 March 2013 is a copy of orders made by the Consumer, Trader and Tenancy Tribunal on 1 March 2013 in which orders were sought by Mr Partington under the Residential Tenancies Act 1987 in relation to rent increases and alleged harassment by the landlord. The Tribunal considered that it had no jurisdiction to determine those applications pursuant to the 1987 legislation. It also considered Mr Partington's claims to be without merit and the application without foundation and frivolous or vexatious. 15Pacific Link's evidence is that there may be an ability to relocate the current tenants from the premises to which Mr Partington seeks reinstatement by way of temporary accommodation until a permanent suitable alternative property can be found but that in such circumstances it would be obliged to pay the tenant's relocation costs. There is also a statement of opinion as to Mr Partington's ability to obtain other housing within the area, if he satisfies the eligibility test for social housing, but I place little weight on that opinion. 16The application for reinstatement to the premises (including the orders sought in relation to the provision of keys, payment of the storage costs and the like) is tantamount to a mandatory injunction to require Mr Partington's reinstatement. For such an injunction to be granted on an interlocutory basis Mr Partington is required to show that there is a serious question to be tried as to his entitlement to be reinstated to the premises, that damages would be an inadequate remedy and that the balance of convenience lies in favour of an order for his reinstatement. 17It is sufficient for the purposes of the present application to note that I am not satisfied that the balance of convenience lies in favour of reinstating Mr Partington to the premises on an interlocutory basis pending the appeal. I say that in circumstances where there are other tenants now in the premises and that if an order is made for reinstatement this would expose Pacific Link to costs (or damages for breach of contract) at least for the cost of relocation of the tenants. 18Counsel for Pacific Link relies on the delay by Mr Partington in seeking relief of this kind since the application for stay of the order in relation to his eviction was dismissed in December 2012. Mr Partington says in response that he informed Pacific Link that he would be intending to appeal; that Pacific Link was on notice of this; and, in essence, that it is all Pacific Link's fault that the matter has reached this stage because, had Pacific Link responded to requests made by him for evidence of the basis for the rental increases or had he been given notice of the Tribunal hearing on 29 October 2012 (that he says he did not receive) then "none of this" (i.e., the present application) would have been necessary. Mr Partington's attitude to the position of third parties who might be affected by the order was to the effect "Who cares?". 19The fact that orders of the kind now sought by way of mandatory injunction would have an impact and cause potential hardship on third parties is a matter to take into account in determining whether the balance of convenience lies in favour of reinstatement. I am of the view that the balance of convenience is firmly against reinstatement. It seems to me that damages would an adequate remedy in a case of this kind in any event since Mr Partington has already been evicted from the premises. 20I therefore dismiss Mr Partington's application for relief by way of reinstatement to the premises. 21I next turn to the applications made by both sides in relation to relief by way of a restraint on the making (or manner) of communications or correspondence or contact between one or other of the sides to the proceedings. 22I will turn first to Mr Partington's application, which was for orders that three named persons on the Pacific Link staff not approach him or come within 100 metres of the premises from which he was evicted until 19 July (which is the date Mr Partington has said the matter is listed for hearing before the Court of Appeal) and, secondly, that they not have any contact with him in any way except through their acting legal representative until that date. 23Mr Partington puts the basis for those orders on the fact that he does not "get on with" those persons, that he has a conflict with them and that he does not want to have anything with them. He said from the bar table in his submissions that he did get along with some of the staff at Pacific Link and that there were some members of the previous staff at Pacific Link with whom he would be able to communicate but he 'would not personally go out of his way' to meet with any of the three named individuals. Mr Partington informs me (and there is some material before me to this effect) that there is an existing apprehended violence order against Mr Partington in relation to one of those individuals (Mr Gavin). 24In one sense, the application for these orders may be academic in light of the application that Pacific Link has made for there to be limitations on the manner in which Mr Partington is to correspond with persons (other than Pacific Link's solicitors) in these proceedings. Nevertheless, Counsel for Pacific Link (Mr Hourigan) submitted that it was not appropriate for a superior court to make orders of the kind sought by Mr Partington against Ms Rossendell, Mr Gavin and Ms Walker in circumstances where there was no basis shown for the making of such an order. I accept that submission. I have been taken to no material to suggest that any of those persons has behaved in such a fashion as should lead to an order of this kind. I am not satisfied that Mr Partington has established a basis on which the orders sought in paras 6 and 7 of the notice of motion of 28 February 2013 should be made. 25The only other relief sought in Mr Partington's notice of motion relates to the claim for security for costs. I will deal with that in the context of the Pacific Link application. In view of the decision I have reached on the first two categories of orders sought in Mr Partington's notice of motion (being the substantive relief sought by him) that notice of motion should be dismissed. I will deal with costs in due course. 26In relation to Pacific Link's motion, the second set of orders was that effectively corresponding with those that I have just dealt with in Mr Partington's motion and it relates to correspondence between Mr Partington and Pacific Link. In effect, Pacific Link seeks orders to limit Mr Partington's correspondence with Pacific Link in relation to these proceedings to correspondence with Mr Chris Ryan of Chris Ryan Legal (he being the solicitor for Pacific Link) and that Mr Partington not make any correspondence in relation to the first respondent in these proceedings, directly or indirectly with any representative of the first respondent apart from Mr Ryan (the appointed legal representative referred to in order 8 of the orders sought) and by the permitted method in order 9 of the proposed orders (namely, in writing, including typewritten, correspondence, signed and dated by Mr Partington). 27I have been taken in support of that application to evidence of iPhone or iMessage text messages from Mr Partington to Mr Gavin and various email messages including an email message from Mr Partington to Ms Rossendell. I do not propose to set out the text of the various communications save to say that it is not unfair to Mr Partington to describe them as using obscene and vulgar language and, in the case of Mr Gavin, that there are intimidatory messages. 28Mr Partington did not ultimately oppose the making of the orders in relation to contact with Pacific Link staff. His attitude was that they were not necessary. 29I am satisfied that it is within the Court's jurisdiction, for the control and management of proceedings in this Court, to make orders of the kind sought in paras 8, 9 and 10 of Pacific Link's notice of motion and that I should make those orders and the further order in 11 that Mr Partington not make any correspondence in relation to the first respondent in these proceedings using obscene, vulgar or abusive content. 30I interpose to note that Mr Partington, during the hearing of the applications before me, told me that he had not received any of the material that Pacific Link was relying on in the applications before me today. That perhaps is most readily explicable by the fact that, as evidenced on material tendered by Pacific Link, Mr Partington has received email communications but has apparently chosen not to read any email messages that emanate from Mr Ryan (Pacific Link's solicitor) and that the express post delivery of material by way of service in relation to the amended notice of motion was returned to sender with the notation "not at this address" by Australia Post. Mr Partington (from the bar table) informed me that he had issued those (return to sender) instructions to Australia Post knowing that material would be served in relation to this matter and had directed them to return it. 31In those circumstances, the fact that Mr Partington had not seen the material until the matter was before the Court today was of his own making. I also note that Mr Partington was directed on the last occasion the matter was before this Court by Macfarlan JA to provide an address for service of documents in relation to the proceedings and that the documents that were forwarded by express post to Mr Partington in relation to the amended notice of motion were sent to the address that had been notified by Mr Partington as the address for service of documents in the proceedings. (I raise this because it goes also to the question of security for costs.) 32As a result of the above, the affidavit material relied upon by Pacific Link on this application was not read by Mr Partington before the application. A further copy was provided after the luncheon adjournment to Mr Partington. He had the opportunity to read through it as I was taken to various parts of it during the course of the application by Pacific Link. It seemed to me appropriate to proceed, notwithstanding that he did not have had advance notice of that material, in the circumstances referred to above. 33I turn then to the application by Pacific Link for security for its costs. Security is sought pursuant to r 51.50 of the Uniform Civil Procedure Rules. I commence by saying that the amended summons which commences these proceedings does not make clear precisely the nature of the appeal. It includes some statements in relation to the District Court proceedings and to the Consumer Trader and Tenancy Tribunal proceedings, making various assertions as to failures on the part of the respective judicial or tribunal officers, and then claims a variety of relief including an order that the Consumer Trader and Tenancy Tribunal orders of 29 October 2012 (those being orders for the termination of the residential tenancy agreement) be set aside and also for the District Court orders of 14 December 2012 to be set aside. 34The appeal to this Court, as I understand it, is an appeal from the dismissal by Judge Robison of Mr Partington's amended summons pursuant to r 13.4(1)(a), (b) and (c) of the Uniform Civil Procedure Rules. Mr Partington also, however, refers to a refusal of Judge Robison for a "further stay of orders for a week so that Mr Partington could prepare a proper response upon receiving 150 documents from the defendants three days prior". This refusal of a stay of orders is said to be a blatant denial of procedural fairness. (Pacific Link, I should add, disputes that any such application for adjournment was made.) 35Insofar as the decision by Judge Robison (and I do not have a record of the reasons of Judge Robison although I understand that that has been sought and should be available by the appeal) was an exercise of discretion on the part of the Court. What would be necessary for Mr Partington to establish is that that exercise of discretion miscarried and that it was plainly wrong (in the sense used in House v R (1936) 55 CLR 499 for the proceedings to be dismissed on that basis. 36It is not clear that what is being sought in the present appeal is judicial review of the conduct by members of the Tribunal in relation to the termination of the lease. I note that under the Consumer, Trader and Tenancy Tribunal Act referral of questions of law can be made to the Supreme Court in accordance with Supreme Court Rules by the Tribunal. Appeals on errors of law lie to the District Court. An application for a stay of a Tribunal order can be made by either to the District Court or the chairperson of the Tribunal. Section 65 of the Consumer, Trader and Tenancy Tribunal Act prevents prerogative writs review except in relation to an appeal on the basis of jurisdictional error or denial of procedural fairness. The potential significance of whether there is an application before this Court for judicial review is that the Uniform Civil Procedural Rules have recently been amended such that a plaintiff is not to be required to provide security for costs in respect of proceedings under s 65 and 69 of the Supreme Court Act for judicial review and proceedings in the supervisory jurisdiction of the Supreme Court, except in exceptional circumstances. Those rules commenced on the day of publication on the New South Wales legislation website, being 15 March 2013. They were announced on 11 March 2013. They do not apply to proceedings commenced before the commencement of Part 59. Therefore, those rules will not apply to these proceedings even if these proceedings include an application for judicial review of the conduct by the Tribunal. (They are in any event subject to the exception noted for exceptional circumstances.) 37Turning then to the basis on which security for costs may be ordered for proceedings in this Court, it must be established that there are special circumstances for an order for security for costs. In Preston v Harbour Pacific Underwriting Management Pty Limited [2007] NSWCA 247 (at [18]), Basten JA noted that the considerations engaged by the concept of special circumstances in relation to security for costs had been considered by this Court in Transglobal Capital Pty Limited v Yolarno Pty Limited [2004] NSWCA 136; [2004] 60 NSWLR 143 and Porter v Gordian Runoff Limited [2004] NSWCA 171. His Honour there said that consideration of what may constitute special circumstances should not be fettered by some general rule of practice. His Honour further noted that impecuniosity, without more, will usually be insufficient. 38It is readily conceded by Pacific Link that Mr Partington is likely to be in a position where his impecuniosity, or his financial position, is such that there is a real likelihood that if security for costs is ordered, this will stifle the appeal. I note that, in Preston, it was noted that where a bona fide and reasonably arguable appeal will be stifled by an order for security, such an order should usually not be made. 39In the present case, Mr Partington's complaint in essence lies as to the alleged denial of procedural fairness by the Tribunal in proceeding to determine the application for termination of his residential tenancy agreement on 29 October 2012 when he was not present and on his assertion that notices of rent increases were not received by him or issued by Pacific Link, the latter relating to factual questions that were not challenged by him or were not able to be challenged by him (due to his failure to appear at the Tribunal) on 29 October 2012 when the matter was before the Consumer Trader and Tenancy Tribunal. 40However, when it comes to the decision of Judge Robison that is now under appeal the issue is as to whether the District Court was acting in the dismissal of the proceedings in a manner that was plainly wrong or was erroneous in the House v R sense. Having regard to applicable legal principle and the material before the District Court, there must be doubt as to the prospects of success on appeal before this Court. The allegations that were there sought to be made were broad-ranging (including as to the invalidity of the legislation due to issues as to the identity of the delegate of the Governor who had proclaimed the residential tenancies legislation in 2010 in the first place). Mr Partington's complaint appears to be that he had a contract that was governed by the Residential Tenancies Act 1987 and that it was not open thereafter to any third party (including, I presume, on the basis of this submission, Parliament, by reference to legislation passed in relation to the repeal of the 1987 Act and its replacement by the 2010 Act) to affect that contract. (I add that such a submission ignores the potential retrospective effect of legislation.) 41Cases where special circumstances have been found to exist for security for costs of an appeal include where the appeal is manifestly groundless or where there is a risk that the appeal will involve unnecessary costs (Lall v 53-55 Hall Street Pty Ltd [1978] 1 NSWLR 310); where the appeal involves an apparent abuse of process (Weldon v Maples Teesdale & Co [1887] 20 QBD 331); and where there has been unexplained non-compliance with procedural directions, at least where the appeal prospects lack power and substance (Levy v Bablis [2011] NSWCA 411). 42Pacific Link points in this instance to the instances of non-compliance by Mr Partington with the requirements of the Rules in relation to service of material in relation to his appeal. It points to the difficulties in relation to service of Mr Partington and the fact that the address for service nominated by Mr Partington was one to which documents have not been able to be reliably served (because of Mr Partington's direction to Australia Post for those documents to be returned to sender) and to the manner in which communications from Mr Partington have been issued. 43Those matters are relied upon, coupled with the argument that the prospects of success of Mr Partington's appeal in relation to matters going to the validity and enforceability of the Residential Tenancies Act 2010 and the constitutional issues sought to be raised by Mr Partington are said (if not hopeless) to have only a relatively slim prospect of success, as special circumstances. 44My concern in relation to the application for security for costs is twofold. First, it is a concern that the appellant is self represented, is of sufficiently low income to have been entitled to community housing support for a number of years and asserts that this will have the effect of stultifying the appeal. Such an order may also be likely to lead to the incurral of further expenses on interlocutory applications prior to the hearing of the appeal which is listed in July in any event. Second, the evidence as to the manner in which those costs are quantified is limited to an estimate by the solicitor for Pacific Link as to estimated Counsels' fees and other disbursements likely to be incurred by it in the appeal. It is anticipated that the professional costs and disbursements will be of $10,000 to $15,000 with counsel's fees of a comparable amount. On that basis, the sum of $30,000 is sought by way of security for costs. (Mr Hourigan submitted that on a party/party basis an amount of around $20,000 would be likely to be recoverable.) 45But for the manner in which the appeal seems to have been pursued by Mr Partington (in terms of the abusive correspondence and the obstructiveness of Mr Partington in relation to the service of documents and the like, and non-compliance with the Rules in relation to appeals) I would have been inclined not to order security for costs. In the circumstances, however, I think that special circumstances have been shown and that there should be provision of security for costs of the appeal. However, I propose, where there has been no breakdown of the costs estimate, and where Mr Partington is in a difficult financial position or low income position, to limit the security for costs to be ordered on the appeal to $10,000. (I add that it seems likely that party/party costs in such an amount would be incurred on an appeal in this Court.) 46There remain two issues to be dealt with. The first is that directions need to be made for the compliance with the requirements set out in Part 51 of the Uniform Civil Procedure Rules in relation to Mr Partington's appeal. I also need to deal with the application by Mr Partington made midway through the course of these reasons for me to disqualify myself for bias. 47As to the requirements set out in Part 51 of the Uniform Civil Procedure Rules there is an issue as to whether or not r 51.12 applies on the basis that this is an appeal for which leave is needed or is an appeal as of right in which case r 51.25 will apply. There is authority for the proposition that orders striking out claims (on the ground that the claim discloses no reasonable cause of action), or staying or dismissing further proceedings are orders that are regarded as interlocutory and not final for the purposes of considering whether leave to appeal is necessary. I refer there to Hunt v Allied Bakeries Ltd [1956] 3 All ER 513, Tampion v Anderson [1973] 3 ALR 414, Little v Victoria [1998] 4 VR 596 and Re Luck [2003] HCA 70; [2003] 203 ALR 1. 48I attempted to ascertain from Mr Partington the basis on which the appeal/application for leave was brought. Mr Partington simply responded to the effect that if the Registrar accepted had the material, why was it necessary to raise the issue. In the circumstances probably little will turn on this. I think the better view is probably that leave is required for striking out of claims in pleadings (as opposed to entry of summary judgment - see King Investment Solutions Pty Ltd v Hussain [2009] NSWSC 1076) and that the appeal may not be competent as is. However, no issue has formally been taken as to this by Pacific Link. I will direct that Mr Partington comply with the requirements set out in pt 51 r 12 as if this were an application for leave to appeal and as if the hearing listed for July were a concurrent hearing for leave to appeal and for the appeal itself. 49The orders for security for costs that are sought seek an order that the proceedings be stayed until there is compliance with the provision of security, I therefore will need to set a date for the provision of security for costs. Mr Partington, now not being here (having left the Court after the dismissal of his reinstatement application), I cannot ask his views in relation to that. This being 25 March and the appeal being listed in mid July, I will allow four weeks for the provision of security for costs. 50I will direct that the appellant/applicant pay into the Registry of the Supreme Court of New South Wales the sum of $10,000 by way of security for costs pursuant to r 51.50 of the Uniform Civil Procedure Rules (2005) NSW by 22 April 2013 and that the proceedings be stayed until compliance with those orders. On the assumption that security is provided by that time, I will direct that Mr Partington comply with r 51.12 by serving the material referred to therein by 6 May 2013, which is two weeks from the date on which security is to be provided. As far as the other directions sought are concerned, I will list the matter in the Registrar's list on 13 May 2013. 51Finally, I add that during the course of these reasons (after I indicated I would dismiss Mr Partington's application for reinstatement to the premises) Mr Partington demanded that I disqualify myself for bias. I refused to do so. I ruled on this and indicated that in my written reasons I would include references to the relevant authorities that deal with the question of bias. As I understand it, the application that was made by Mr Partington alleged actual bias, not apprehended bias, and it was made on the basis of the finding that I made in relation to his application for reinstatement. As I apprehend it, Mr Partington considered that I did not refer to all of the material to which I should have referred when I gave my ex tempore reasons for that application and reached an erroneous conclusion. 52In my opinion, no reasonably informed lay observer would consider that, simply because I had found against Mr Partington on the reinstatement application (and may have given inadequate or incomplete, or in some instances, perhaps, erroneous reasons for that decision), that amounted to bias. No basis has been suggested, nor am I aware of any basis on which it could be suggested, that there was any actual bias against Mr Partington other than any shown by the finding made against him. I thus refused to disqualify myself (midstream in my oral reasons) from expressing my reasons for determination of the balance of the motions that were before me. 53(As I indicated in my oral reasons I would do, I add that the test for apprehended bias is set out in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [16]) as confirmed in Michael Wilson & Partners Ltd v Nicholls & Ors [2011] HCA 48; (2011) 282 ALR 685 at [31]). It requires identification of what it is said might lead a decision-maker to decide a question other than on its merits and articulation of the logical connection between that matter and the feared deviation from the course of deciding the question other than on its merits. In Wilson, the High Court noted the fallacy in arguing (as seems to have been the basis of Mr Partington's claim of bias) that because one side lost the litigation, the judge was biased, or that some appellable error demonstrated pre-judgment. Where actual bias is alleged, such an allegation can be made good only by proof that the decision maker is actually biased. Brereton J, in Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 540, said "the submission that a reasonable bystander would conclude that there was actual bias is misconceived, because actual bias depends not upon the impression of any reasonable bystander, but upon proof that the decision maker is actually biased" (at [45]).) 54Pacific Link has sought an order for costs on the ordinary basis. It seems to me that there is no reason that costs should not follow the event in accordance with the ordinary basis for costs. I will therefore order Mr Partington to pay the costs of Pacific Link's amended notice of motion and of Mr Partington's notice of motion of 28 February 2013.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 April 2013