Disqualification application
41This application was pressed on the basis of actual bias, which Mr Chan submitted was evidenced by the reasons given for the refusal of his apprehended bias application which I dealt with in Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 6) [2014] NSWSC 153. There I said at [56] - [65]:
"56 In order to establish apprehended bias, Mr Chan must establish that 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 matters which arise for determination in the proceedings. That requires consideration of what "a fair mind lay observer might reasonably apprehend" (see Ebner v Official Trustee in Bankruptcy [2000] HCA 63 (2000) 205 CLR 337 at [6] - [7]). In Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, it was explained at [87] that in assessing what the hypothetical reaction of a fair-minded observer would be, knowledge of the actual circumstances of the case must be attributed to that person.
57 In Ebner it was also observed at [19] - [20]:
"[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.
[20] This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable."
58 In R v Simpson; Ex Parte Morrison [1984] HCA 25; (1984) 154 CLR 101, it was explained at 104:
"It is quite clear that when there is a suggestion of bias, the court should not proceed either if there is actual bias or if there is a reasonable suspicion of bias. That is not to say, however, that the court must desist from hearing proceedings when somebody wrongly and irrationally suspects bias."
59 In this case what has to be attributed to the fair-minded observer includes the serious nature of the proceedings brought against Mr Chan, the course which the proceedings have taken, how he has conducted himself in the proceedings, how he has been dealt with during the course of the hearing and how the applications he has made have been determined.
60 Mr Chan's submission that his various applications have all been refused was factually incorrect. A number of his applications have succeeded, for example the application which he made at the hearing in September 2013 for referral for pro bono legal assistance and an adjournment to pursue that application; another application for adjournment at the commencement of the resumed hearing in February, when he had not completed photocopying documents; and another adjournment on another day, in order that he could attend a Centrelink commitment.
61 Other applications were refused for reasons which have been published. They include adjournment applications which, it became apparent, were part of a series of deliberate steps pursued by Mr Chan to delay and disrupt the orderly conduct of the proceedings, which proceeded at the resumed hearing when he again appeared unrepresented, with the greatest difficulty.
62 Mr Chan is an experienced litigant. In these proceedings he has demonstrated a real capacity to advance his case by cogent submissions and proper cross-examination, when he wishes to do so. He has also demonstrated a capacity to delay and disrupt the proceedings by a course of deliberate conduct persisted in by various means, including repeatedly pressing applications, even when refused for reasons given. He has been argumentative and has refused to act in accordance with repeated requests made of him, such as that he take a seat, that he not interrupt me or the plaintiff's legal representatives and that he not constantly repeat evidence which he has already given or submissions he has already made.
63 Initially I thought that some of this behaviour, which suggested indecision and disorganisation, reflected that Mr Chan was unrepresented. Over time it became apparent that Mr Chan was quite organised and that his disruptive behaviour was both calculated and persistent, designed to ensure that applications which he was pressing succeeded, or that the hearing did not progress.
64 In the result, I have had to ask Mr Chan repeatedly to stop interrupting; to sit down when asked; at times to confine himself to giving evidence, rather than advancing submissions; to stop repeating himself; at other times to bring his evidence or submissions to a close; and at other times to warn him that if he did not ask a question, that I would bring his cross-examination to an end, or that if he did not tender a document, I would bring his evidentiary case to an end. The latter was necessary because at certain times Mr Chan spent many minutes either standing in silence, or reading documents, or in searching for documents which he explained he had not put in order, or had not yet decided whether he would tender. At other times he simply refused to respond to attempts to attract his attention.
65 That any fair-minded observer would conclude that how Mr Chan and his applications have been dealt with were the result of either bias or a denial of natural justice cannot be accepted. That was certainly not established by the aggrieved feelings which Mr Chan described in his submissions."
42Mr Chan submitted that these observations were factually incorrect, unfair and defamatory; revealed that matters on which his case rested, such as the existence of the conspiracy which he alleged, had been decided against him; revealed that I had wrongly applied the law; that I was actually biased; and that he could not receive a fair hearing. On his approach I ought not to have made any reference to his conduct in the proceedings in the published judgment and that there was nothing improper about the steps he had taken to delay and disrupt the proceedings, which were a normal part of litigation and the consequence of steps he had properly take in the litigation.
43The plaintiff opposed Mr Chan's application, submitting that Mr Chan had established no basis on which it could be granted and drawing attention to the warning given judges against too readily acceding to applications such as this. Mason J warned, for example in Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 at 352, that judicial officers should not too readily submit to an application that they should disqualify themselves from sitting:
"... Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."
44Trial judges may also not accede to disqualification applications such as this if a litigant "wrongly and irrationally suspects bias" (see The Queen v Simpson: Ex parte Morrison [1984] 154 CLR 101 at 104).
45In this case I concluded that the application could not be acceded to because no error of law was established, nor was any factual error or bias.
46Whether there is any actual bias is a question of fact which must be determined in light of the matters which Mr Chan urges disclosed that such bias existed, namely the conclusions reached in the judgment. This involves a higher test than that of apprehended bias (see McGovern v Ku-ring-gai Council [2008] NSWCA 209; 72 NSWLR 504 at [73]). As discussed by Ward J in Partington v Pacific Link Community Housing Ltd [2013] NSWCA 67 at [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]).)"
47Mr Chan established no such bias. Contrary to his submission that it was wrong and defamatory to refer to his conduct in the proceedings or to explain the conclusions I had reached about that conduct, in order to determine the apprehended bias application which he had pressed, consideration necessarily had to be given to his conduct during the proceedings and how I had dealt with it, which was as described.
48The conclusion that Mr Chan had pursued a series of deliberate steps designed to delay and disrupt the orderly conduct of the proceedings (at [61]) and that his behaviour was both calculated and persistent, designed to ensure that applications which he was pressing succeeded, and that the hearing did not progress (at [63]), were unavoidable in the circumstances. These conclusions rested on the matters described at [64].
49As discussed at [59] an understanding both of the proceedings and these matters must be ascribed to a fair minded observer when the test on which applications for apprehended bias must be resolved is applied (see Laws v Australian Broadcasting Tribunal [1990] HCA 31; 170 CLR 70 at 87). It must be assumed that such an observer would base their opinion on a fair assessment of the judges' conduct in the context of the whole trial (see Galea v Galea (1990) 19 NSWLR 263 at 279.).
50The conclusions which I reached as to Mr Chan's repeated attempts to delay or bring these proceedings to an end without final hearing or judgment, were unquestionably negative. That such conclusions have been arrived at does not, however, evidence either bias or establish that Mr Chan will not receive a fair hearing in relation to the contempt charge pursued against him. As discussed in Re F [2013] NSWCA 239:
"16 The mere fact that a submission is rejected cannot amount to bias; every judicial officer rejects one party's submissions every time a point is argued. And the mere fact that a submission is rejected in a way which seems to the loser to be curt, or demeaning, or belittling, once again, cannot of itself amount to bias. The reason that must be so is that regard must be had to the nature of the submission. Some submissions are, of their nature, readily rejected, because they are very weak or indeed hopeless."
51Trial judges are sometimes required to control and reach conclusions about how litigants conduct themselves in court. Of necessity, when applications such as that which Mr Chan made, conclusions have to be reached as to what the application rests on, in this case his conduct and how I have dealt with it.
52That a negative conclusion was reached in relation to his conduct does not establish that Mr Chan will not receive a fair hearing as what is in issue in this case, namely, whether he was in contempt of the Local Court, as alleged, when he refused to comply with an examination order. On Mr Chan's repeated submissions, there is no issue between the parties that he refused to comply with that order. What is in issue is whether that refusal involved any contempt.
53Mr Chan's conduct in these proceedings and the adverse conclusions which I reached in relation to it, are irrelevant to the resolution of that question and say nothing as to how I will approach or resolve it.
54In the result I took the view that the judgment relied on did not evidence the actual bias Mr Chan complained of and accordingly the disqualification application was refused.