Plaintiff v Defendant

3 I have had the judicial management of this proceeding for some time.

4 Ross issued a summons on 1 July 2022 seeking various orders, including that I recuse myself. It was appropriate to deal with that aspect of the application first.

5 Ross filed an affidavit he affirmed on 27 July 2022 and written submissions in support of his application that I step aside. The defendant opposed the application and relied on written submissions it filed when Ross raised similar issues in February 2020.

6 The principles applicable to bias applications are well-settled, and were summarised by the Court of Appeal in Davies v The Queen:[1]

• A judge must not sit on a case where he or she is biased (actual bias) or might reasonably be perceived to be biased (apprehended bias).[2]
• The test for apprehended bias is whether a hypothetical fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge is required to decide.[3]
• A judge will only be disqualified for actual bias if a party establishes that a judge is so committed to an outcome that he or she will not alter that outcome, regardless of the evidence and/or arguments presented.[4]

...

• A party making a recusal application must identify the cause of an appearance of bias and demonstrate the logical connection between the cause and the appearance of partiality. A bare assertion that a judge has an interest in the outcome of a case is not sufficient.[5]
• The apprehension of bias must be reasonable and not fanciful or unreasonable.[6]
• While a hypothetical lay observer does not have a detailed understanding of the law, he or she has basic knowledge of the judicial process and the issues to be determined.[7]
• The hypothetical lay observer does not know the personality of the judge, but knows that the person is a judge who has been trained to discount irrelevant, prejudicial or immaterial matters.[8]
• The hypothetical lay observer has a broad knowledge of the material facts of the case and the circumstances that led to the trial. The lay observer also knows that the judge does not rely on in accurate or incomplete information, or rely solely on the facts known to one of the parties.[9]
• A judge's bad temper or mere lack of niceties is not sufficient to establish apprehended bias.[10]
• A short and emotional exchange will not necessarily demonstrate that a judge is incapable of behaving impartially. However, prolonged or intense animosity towards a party, even if the animosity is notal ways apparent, may amount to actual or apprehended bias.[11]
• A judge may express a tentative view about an issue without creating an apprehension of bias.[12]

Evidence and submissions in support of application

7 Ross's affidavit and submissions contain gratuitous, offensive and irrelevant remarks. Those remarks will be redacted from the documents before they are formally accepted for filing and tender on this application.

8 Ross's affidavit and submissions begin as follows:

1. I hope that I lose this application 'on the papers'.

2. I have come to see that Judge Keogh is a good and fair man.

3. But I still seek to, at least, make this application due to events that largely occurred at the start of this proceeding.

Ross then made an apparent reference to complaints he has previously aired about the conduct of the Court Registry before and at the time this proceeding was issued, and continued:

6. But I think that you could have also acted differently in relation to this event and that you prejudiced me.

9 Ross described in the affidavit what appears to be a complaint about the conduct of a solicitor who previously represented the defendant in the proceeding, and the filing and service of documents by him. He then says:

2. Your attitude at the directions hearing of the interlocutory application that preceded [defendant's solicitor] filing these documents. Basically, you treated my application and me as a joke.

Ross did not identify the documents filed by the defendant or the directions hearing to which he was referring. I have read the transcript of the first directions hearing at which I presided in this matter on 24 November 2017. Ross did not identify, whether by reference to the transcript or otherwise, what was actually said or done by me at the directions hearing that would cause an appearance of bias or demonstrate a logical connection between that cause and the appearance of partiality. During the directions hearing, I discussed with Ross the difficulties he was experiencing obtaining legal representation, what he wished to do to secure representation, and what he would need to do to apply to the court for a relevant order. I also discussed with Ross the current state of the proceeding, and the implication of issues raised in the filed defence. I fixed a timetable of steps to be taken before the next directions hearing in June 2018 in anticipation of a preliminary hearing of some questions raised by the defence occurring in the second half of 2018. I discussed with Ross the issues he raised, and how he might take those issues forward. There is no basis for a complaint by Ross about my attitude towards him at that directions hearing.

2. And then ... well, What happened to the Amended Statement of Claim that I once submitted - submitted informally and 'not officially' however - I think this may have been because you thought it was better for the Government to not have anything on file ... on the record ... forever ...

Ross then referred to matters contained in the document he submitted, before concluding:

... but going back, I still don't know what really happened because it was just swatted away like how I swat away a fly.

Ross then referred to a list of questions relevant to a preliminary determination of certain defences pleaded by the defendant.

11 In August 2018, Ross applied for leave to file and serve an amended writ and statement of claim. He did not at that stage provide a proposed amendment, and indicated at a directions hearing on 24 August 2018 that he did not wish to proceed with that aspect of his application until he had exhausted all avenues for obtaining legal representation in the case. At that directions hearing, and on a number of subsequent occasions, I explained to Ross that when he wished to proceed with an application to amend his pleading, he should provide to the defendant and to the Court a proposed amended pleading. Over the years since, Ross has prepared various versions of a draft amended pleading. Ross has not been prevented from applying to amend the writ and statement of claim. However, he has not settled on a final version of a proposed amended pleading. Again, there is no identification by Ross in this application of the cause of an appearance of bias and the logical connection between that cause and the appearance of partiality.

12 Next Ross stated that he was significantly psychologically impaired from the start of the proceeding and provided evidence from his treating psychiatrist to that effect. I take Ross's complaint to be that I ignored or failed to act on this issue.

13 Documents filed by Ross shortly before a directions hearing on 24 February 2020, including a report from his treating psychiatrist, raised questions about his mental health and capacity. After lengthy discussion it was agreed that a report be obtained from an independent medico-legal psychiatrist addressing Ross's capacity. The opinion of the doctor who provided the report was consistent with Ross having capacity in accordance with r 15 of the Supreme Court (General Civil Procedure) Rules 2015. There is no basis for any complaint by Ross that the issue of his capacity was not recognised and addressed by me.

It is my belief and plead that these 2 associates never took me seriously or gave me any respect because at this time, at the start of Ross vs Commonwealth, Hon Judge Keogh didn't either. So, their actions were just a reflection of Hon Judge Keogh.

For similar reasons to those already given above, this non-specific assertion is not a basis for an apprehension of bias.

• So, I believe, Judge Keogh in the first directions hearing grossly misunderstood, and neglected to consider, and just brushed-it-off, my attempts to articulate the problems I faced going forward, at that point in time, due to issues I raised, and were raising, with the 2 members of the Registry office that had caused me to file my lawsuit 18 months later that I chose to.

• In short, you put me in an impossible position to proceed with this lawsuit at the start of this lawsuit.

For the same reasons these further assertions by Ross do not articulate a basis for apprehended bias. Further, the assertions are inconsistent with the transcript and my memory of the first directions hearing.

16 Ross also appears to complain that I gave no reasons for rejecting his application to issue subpoenas in the proceeding. In fact, Ross's application to issue 14 subpoenas was considered and dealt with by me in an unpublished ruling delivered on 1 October 2018.

17 Ross made a similar, though not identical, application for me to step aside by filing and serving a notice to that effect in February 2020. Ultimately he withdrew the application before it was required to be determined. Before he did so, the defendant filed submissions opposing the application. The defendant seeks to rely on those submissions in opposing the current application.

(a) There was no material before the court that supported an allegation of apprehended bias.

(b) In response to indications from Ross that he wished to amend the statement of claim, I explained he would need an application for leave to amend, and the material supporting the application should include a draft of the proposed amended pleading and material explaining the causes of action he now sought to agitate and how they related to the cause of action in the current proceeding.

20 The application for me to step aside has no merit and will be dismissed.

[1] [2019] VSCA 66, [523].

[2] Livesey v NSW Bar Association (1983) 131 CLR 288; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 ('Ebner'); Johnson v Johnson (2000) 201 CLR 488.

[4] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 ('Legeng').

[6] Guscor v Ellicott [1997] 1 VR 332.

[7] Roner v ANZ Banking Group [2000] VSCA 77; (2000) 2 VR 531.

[8] Honda Australia Motorcycle v Johnstone (2005) VSC 387.

[9] Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 ('Laws'); Victoria v Psaila [1999] VSCA 193 ('Psaila').

[10] Galea v Galea (1990) 19 NSWLR 263; Psaila (n 9).

[12] Laws (n 9); Legeng (n 4); R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546.