Plaintiffs v Defendants/Applicants

ZOE MAY SLES (a minor, by her litigation guardian, Kerrie Louise Sles)

1 By summons filed 25 July 2017, the first to third defendants ('the applicants') seek that I recuse myself from hearing any further interlocutory applications and the trial of this proceeding on the ground of apprehended bias. The application was supported by an affidavit of Howard Roger Rapke sworn 25 July 2017.

2 The applicants rely on statements made by me on three occasions when I informed the parties that while in practice at the Bar I was retained on behalf of Douglas William Gardner, deceased, and that I said it would not be appropriate for me to hear the trial or any substantive applications in the proceeding. They say that these statements demonstrate that I 'should not preside over the trial of the proceeding and should not determine any substantive issue in the proceeding, any issue that requires consideration of evidence or any factual as opposed to legal issue'.

3 On 13 November 2015, the plaintiffs applied for a limited grant of administration ad colligendum bona in the estate of the deceased, with notice of the application given to the applicants. The applicants did not oppose or consent to the plaintiffs' application and did not attend at Court when the application was made. The relevant parts of the transcript on 13 November 2015 are set out:

HH: I should disclose also that in another life I did act for the deceased in relation to his mother's estate. I don't find any difficulty in making this order as a result of that and I'm actually struggling to remember what I did advise on, other than I know it was something to do with jewellery and it may have been something to do with the ownership of a property in - down at the beach but my memory is a bit lost on that ... but it's nothing to do with - it was to do with the mother's estate and the way things fell under her will.

...

I don't have any difficulty making interlocutory orders on the file but I don't think I should hear it ... Even though my memory is a bit vague as to what happened, having acted for one of the people, as it were ... I take the view that that would preclude me hearing but I can manage it up until trial ... Unless someone objects.

4 On 20 January 2016, the caveat lodged by the applicants objecting to a grant of probate of the deceased's will lapsed and, on 25 January 2016, probate of the deceased's will dated 6 May 2015 was granted to the plaintiffs.

5 On 28 January 2016, the applicants filed a summons, returnable on 19 February 2016, seeking revocation of the 'grant of representation made on 25 January 2016 in respect of the estate of the deceased'.

6 On 1 February 2016, the solicitors for the applicants sent an email to my chambers seeking a date earlier than 19 February for the hearing of their summons for revocation. The email referred to the hearing on 13 November 2015 and the solicitor asked whether my comments made at that time impacted on my ability to preside 'over our clients' application for revocation'.

7 By email the same day, my chambers responded as follows:

Her Honour does not have capacity to deal with the proceeding prior to its current listing on 19 February 2016. Please note that the summons for revocation has been listed for a directions hearing, not a substantive hearing of the application.

In line with her Honour's comments at the hearing of the application for a grant ad colligendum bona, her Honour would recuse herself from any substantive hearing relating to the estate of the deceased but does not consider it necessary to recuse herself from routine directions hearings.

8 On 17 February 2016, the applicants filed three affidavits in support of their application for revocation of the grant of probate. These affidavits are the subject of objections by the plaintiffs.

9 On 19 February 2016, leave was granted to the applicants to file an amended summons setting out the orders sought in the event that the grant of probate was revoked and the parties agreed that the issue of the applicants' standing to seek revocation of the grant be tried as a separate question.[1] The relevant parts of the transcript on that day are:

HH to counsel for first to third defendant: Are you happy for me to hear the standing issue?

Counsel: Yes, Your Honour and is there anything - any reason that your Honour could not hear the standing issue?

...

HH: When the application ... was made I indicated at that time that I had acted for the deceased in relation to an issue in his mother's estate to do with - going back in time, to do with either a boat or a jetty ... I just can't recall and your instructing solicitor at some stage wrote when the matter - the date for this was fixed on the 19th and your instructor wanted an earlier date and also asked whether ... indicated that she had read the transcript and was I going to hear any matters in relation to the estate. So that's why I raise it.

Counsel: I see. So has your Honour - your Honour has acted for the deceased?

HH: In relation to I think a jetty, like one piece of the (indistinct) I think. I've not met the deceased and it was not litigious material issues but I am - I have to say I'm struggling to remember what it was about, other than it was a boat, I think or a key to a boat. But otherwise, that was the limit of my involvement.

Counsel: And your Honour did not meet the deceased.

HH: No. I never met him but I - for my own part, I see the standing point as a legal point not an evidentiary point. ... So I only raise that because your instructing solicitor wrote this quite unusual email, I should say about that disclosure and so perhaps you could get some instructions.

...

HH: So I just want to be clear that there is no - from your side, having received that email, that this is not an issue that I hear it. ... Mr Rapke's in [court]

Counsel: It's not an issue.

HH: All right. As I say, I regard it as a legal issue because there is no evidentiary matter that need[s] to be looked at, apart from the wills.

10 Judgment was delivered on the separate question on 9 September 2016. The applicants successfully appealed the decision and the proceeding was referred back to the Trusts, Equity and Probate List. The next step in the proceeding requires the applicants to file their particulars of their grounds for revocation of the grant to satisfy the Court that there is a prima facie case. The applicants have also issued a number of subpoenas that may be the subject of objections depending on the particulars of the grounds of objection. A further issue to be considered is the alternative relief sought in the summons for revocation for removal of the executors.

11 The applicable principles in relation to a recusal application on the grounds of apprehended bias are well settled. In Ebner v Official Trustee in Bankruptcy, the plurality explained them as follows:

... 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.[2]

12 The test for apprehended bias set out in Ebner is a two stage test. First, the party making the claim must identify some matter or conduct that might lead the judge to decide the case other than on its merits. Secondly, the party must show a logical connection between that matter or conduct and the feared deviation from the course of deciding the case on its merits.[3]

13 A judge should not disqualify himself or herself on the basis of bias or a reasonable apprehension of bias unless substantial grounds are established.[4] In Ebner, the Court emphasised that judges have a duty to perform their judicial functions and to hear the cases allocated to them:

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.[5]

14 In relation to a lay observer's apprehension of prejudgment, in Laws v Australian Broadcasting Tribunal, Gaudron and McHugh JJ said:

A reasonable bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about an issue involved in the inquiry. When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.[6]

15 If a judge concludes apprehended bias has been demonstrated, the judge should recuse himself or herself from hearing the matter further. That being said, judges should not disqualify themselves too readily just because a party demands it.[7]

16 The recusal application is made some 15 months after the applicants filed their summons for revocation of the grant of probate. The statements relied upon by the applicants were made on 13 November 2015, 1 February 2016 and 19 February 2016. What is clear from the statements is that I said I would not hear the trial of the revocation proceeding or any substantive evidentiary matter and that I considered it unnecessary to recuse myself from routine directions hearings. Notwithstanding the statements, this application seeks that I recuse myself from hearing the trial of this proceeding and any further interlocutory applications on the ground of apprehended bias. Allegations of apprehended bias are serious allegations and a party making them is obliged to seek relief reflecting their seriousness. On this application, this has not occurred. In view of my clear statements, what remains to be determined is whether I am disqualified from hearing routine directions hearings and interlocutory applications other than with respect to substantive evidentiary matters.

17 There are few cases concerning applications for disqualification of a judge determining interlocutory applications and routine directions hearings on the grounds of apprehended bias. Any application is dependent on the facts of each case. Whether the application is recusal from determining a trial or recusal from hearing interlocutory applications or routine directions, the test for recusal on the grounds of apprehended bias remains the two stage test set out in Ebner.

18 At the hearing, senior counsel for the applicants stated that the application was about case management of the proceeding and whether the proceeding should remain in the Trusts, Equity and Probate List. It was submitted that case management issues, such as any pre-trial directions, should be managed by the trial judge. This is because the trial judge is the one who sets the timetable for the steps to be taken leading up to the trial and then hears the trial. Counsel submitted that if recusal is appropriate, then judges must disqualify themselves no matter what case management considerations arise in the efficient and effective determination of a proceeding, referring to a statement made by Middleton J in Kirby v Centro Properties Ltd (No 2).[8]

19 The statement made by his Honour in Kirby concerned very different circumstances to this application. In Kirby, the proceeding was allocated to Middleton J under the Federal Court docket system whereby proceedings are randomly allocated to a particular judge upon commencement. That judge oversees each proceeding, makes directions for all pre-trial processes, including interlocutory matters, and then hears the trial.[9] Middleton J was asked to disqualify himself from hearing the trial on the basis that he had made factual findings and rulings in two previous cases that were relevant to and disputed in the upcoming trial. In that context, his Honour recused himself and made the statement now relied upon by the applicants.

20 Unlike Middleton J in Kirby, I have not made any factual findings in any previous cases that might be relevant to and disputed in the trial of this proceeding and I have already stated that I will not be the trial judge. Furthermore, the case allocation system adopted by this Court differs markedly from the Federal Court's docket system. Cases are not randomly allocated to judges in this Court but are organised into specialist 'Lists' within the Court's Trial Division.[10] Each List has a 'Judge in Charge' who will manage proceedings in their List up to trial, including giving directions and determining interlocutory applications. Proceedings will then be allocated to a trial judge - who may or may not be the Judge in Charge of the relevant List - without the need for further directions or interlocutory hearings. For these reasons, the applicants' reliance on Kirby is misplaced.

21 Ordinary judicial practice nowadays includes case management and the close supervision of proceedings by courts. The case management principles relevant to this proceeding are embodied in the Civil Procedure Act 2010 ('the Act'). The overarching purpose of the Act and the related rules of court is 'to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute'.[11] In exercising any of its powers, the Court must have regard to the overarching purpose despite any law to the contrary.[12] In that respect, the Court must further the overarching purpose by having regard to the objects set out in s 9 of the Act, including such matters as the efficient conduct of the Court's business and the efficient use of judicial and administrative resources.

22 The organisation of the Trial Division into specialist Lists promotes the overarching purpose. The Judges in Charge of each List possess knowledge and expertise relevant to the proceedings within their List. They are able to develop practices and expectations common to all proceedings in the List, allowing practitioners to run and prepare their cases accordingly. Such practices may be set out in Practice Notes and other notices issued by the Court and will develop over time. List practices and expectations are directed towards defining the real issues in dispute and, in turn, facilitating the just, efficient, timely and cost-effective resolution of those issues.[13] They also ensure that like cases are treated alike, not just substantively but in point of procedure, by ensuring consistency in the management of proceedings within the List.

23 In the usual course, applications for revocation of a grant of probate and applications seeking removal of executors are listed in the Trusts, Equity and Probate List. As the Judge in Charge of that List, I make directions, hear interlocutory applications and manage proceedings up to trial. At times, interlocutory applications involving contests of substance will arise for determination in the List. At times, I hear such applications and, at other times, I refer them to an Associate Judge. As I have said, I will not hear substantive evidentiary applications in this proceeding; any contested substantive application would be referred to an Associate Judge. This removes any risk of an appearance of prejudgment and provides efficiency in managing the proceeding in the meantime. When the application for revocation of the grant is ready for trial, it will be referred to the Civil Trial List and given a date for trial. The judge who hears the trial of a particular proceeding will depend on the availability of the judges on the particular trial date.

24 As recognised by the High Court in Ebner, it is my duty to exercise my judicial functions where my jurisdiction is invoked in accordance with the Court's method of case allocation. This was emphasised in underscoring the importance of identifying substantial grounds for recusal on the basis of apprehended bias before acceding to such an application.[14] As described, this Court allocates cases into specialist Lists. For the reasons set out above, that method of allocation promotes case management practices that are consistent with the overarching purpose of the Act.

25 The applicants' contention that case management considerations require me to recuse myself from all further hearings in this proceeding does not accord with the practices adopted by this Court. In Johnson v Johnson, the High Court emphasised that the 'reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice,' which is not 'frozen in time'.[15] The ordinary practice of this Court is to organise cases into specialist Lists to be managed by the judge or judges within those Lists accordingly. To adopt an interpretation of the rule against apprehended bias that thwarts the efficacy of the Court's practices in case management would undermine the benefits of the specialist Lists and would not accord with the overarching purpose of the Act.[16]

26 In applying the two stage test for apprehended bias, the first step requires the identification of what might lead me to decide non-substantive interlocutory applications and routine directions hearings other than on their merits. The ground relied upon by the applicants in their written submissions is that while in practice as a barrister I was retained on behalf of the deceased. The second step requires the identification of the logical connection between that ground and the feared deviation from the course of deciding the relevant matters on their merits.

27 The applicants did not address the second step in their written submissions. In oral submissions, senior counsel said the issue was the hearing of any substantive interlocutory applications that would require me to express an opinion about the evidence and the parties' conduct. This submission fails to demonstrate any logical connection between my work for the deceased as counsel and the apprehension that I might manage the case otherwise than according to its merits. Further, it ignores my statements to the effect that I will not hear any interlocutory applications with respect to substantive evidentiary matters.

28 The applicants describe the next steps to be taken in the proceeding as 'potentially dispositive and clearly substantive'. They submit that the requirement of a prima facie case is clearly an evidentiary inquiry and the particulars provided to support a prima facie case provides the basis of the legitimate forensic interest in issuing subpoenas and the scope of discovery that, in turn, will have implications for the admissibility of evidence.

29 The purpose of filing a prima facie case is to provide a sufficient factual basis for the revocation of the grant of probate that will ultimately define the questions for determination at trial. This enables the parties responding to the application to understand the case put by the applicants. Particulars should not be imprecise, vague, ambiguous, obscure or inadequate and must have a proper basis. The provision by the applicants of their prima facie case does not require findings about conflicting facts or evidence. The steps that need to be addressed in the application would not appear to require the determination of conflicting evidence or the credibility of any witnesses. The issue of a prima facie case and any objections to the breadth of subpoenas will depend on the adequacy of the particulars of the grounds of revocation and would be determined in accordance with the principles established and applied in the probate jurisdiction.

30 The application that I recuse myself from hearing the trial of the proceeding is unnecessary given my statements made in November 2015 and February 2016 that I would not hear the trial of the proceeding or any interlocutory applications involving substantive evidentiary issues.

31 Insofar as the application is that I should recuse myself from hearing non-substantive interlocutory applications and routine directions hearings and that the revocation application should be taken out of the Trusts, Equity and Probate List for management by the trial judge, the application is not based on any relevant ground and is dismissed.

32 I will hear the parties as to the further directions to be made in the proceeding. Insofar as the costs of the application are concerned, if the parties are unable to agree, short written submissions are to be filed by 4 December 2017.

[1] Supreme Court (General Civil Procedure) Rules 2015, r 47.04(a).

[2] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 344-5 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ) (citations omitted) ('Ebner').

1. [3] Ibid 345 [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[4] Bienstein v Bienstein (2003) 195 ALR 225, 233 [36] (McHugh, Kirby and Callinan JJ).

[5] Ebner [2000] HCA 63; (2000) 205 CLR 337, 348 [19] (Gleeson CJ, McHugh, Gummow and Hayne JJ). See also Mandie v Memart Nominees Pty Ltd [2017] VSCA 177 (4 July 2017) [60] (Whelan and McLeish JJA and Cameron AJA).

[6] Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, 100 (citations omitted).

[7] AJH Lawyers Pty Ltd v Careri [2011] VSCA 425; (2011) 34 VR 236, 242 [19] (Warren CJ, Hansen JA and Almond AJA).

[8] Kirby v Centro Properties Ltd (No 2) (2011) 202 FCR 439, 441 [10] ('Kirby').

[9] Anna Olijnyk, 'Apprehended Bias and Interlocutory Judgments' [2013] SydLawRw 30; (2013) 35 Sydney Law Review 761, 765.

[10] Supreme Court of Victoria, Practice Note SC Gen 2 - Structure of the Trial Division, 30 January 2017.

[11] Civil Procedure Act 2010, s 7(1).

[12] Ibid s 8.

[13] Ibid s 7(1).

[14] Ebner [2000] HCA 63; (2000) 205 CLR 337, 348 [19] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[15] Johnson v Johnson (2000) 201 CLR 488, 493 [13] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).