Styles v Knox

Supreme Court of NSW|2024-09-19|Before: Schmidt AJ, Griffiths AJ

JUDGMENT

Ms Styles, a retired solicitor, brought these proceedings under ss39 or 40 of the Local Court Act 2007 (NSW) seeking leave, if that is required, and appealing the refusal of Dick LCM to disqualify himself from hearing a summons in proceedings which she has brought in the Local Court against a solicitor, Mr Knox: Styles v Knox (Local Court, Dick LCM, 3 June 2024, unrep).
Mr Knox had earlier represented Ms Styles' neighbours, Ms Rowley and Mr Faulkner, in proceedings which she had pursued unsuccessfully against them in the Local Court: Styles v Rowley (Local Court, Dick LCM, 22 December 2022, unrep). Those proceedings concerned a dispute about a fencing application to which the Dividing Fences Act 1991 (NSW) applied. Ms Styles' case resting on the claimed encroachment of a fence onto her property, its height and the absence of any development consent for its erection.
Ms Styles was legally represented at the original Local Court hearing in December 2022. It had been listed as a special fixture, but the legal representatives had advised the Court before the hearing that no witnesses would be called.
At that hearing the parties advanced their cases on various unchallenged affidavits and documents. Ms Styles' affidavit annexing a surveyor's report and other documents on which she relied and the defendants relying on Mr Rowley's affidavit and a letter from a fencer. One of the matters they dealt with was the height of the fence.
After hearing both Ms Styles' solicitor and Mr Knox his Honour adjourned and later returned to give his short ex tempore decision, dismissing Ms Styles' application and making a costs order against her.

The proceedings against Mr Knox

In the meantime, Ms Styles had brought the Local Court proceedings against Mr Knox in which she made her recusal application, after she had obtained access to the Local Court file in the original fencing proceedings. There she found a case summary which had been filed for Ms Rowley and Mr Faulkner in December 2022, which she considered Dick LCM must have had regard to, in arriving at his December fencing decision. She believed that this summary had not been served on her, as the Local Court had earlier ordered. That was also in issue.
The relief Ms Styles now seeks to pursue in the Local Court has been amended. By her further amended summons of 3 September 2024 she seeks: "1. That this Honourable Court make a finding that the document identified under the heading Summary of the Case Prepared on Behalf of the Defendant Proceedings no. 00286216 of 2021 filed by Kennedy Cooke solicitor Mr Geoffrey Knox on 16 December 2022 at Batemans Bay Court was not served on the Plaintiff in accordance with the Local Court Standard Directions (the Directions) issued by Magistrate D. Dick on 4 April 2022 in a fencing dispute pursuant to s.12 of the Dividing Fences Act (NSW) 1991 (the Act). 2. That the Court make a finding that the Defendant solicitor did not comply with the Directions specifically at par 10 which states: (Par 10): "Failure to comply with the Court's directions may result in the statement of claim or cross claim being dismissed, or the defence being struct out, with costs." 3. If the Court is minded to find that the Defendant did not comply with the Directions, that the Court assess the quantum of costs in relation to par 10 of the Directions insofar as it relates to the Plaintiff's legal costs amounting to $3,850, noting that Magistrate Dick awarded costs against the Plaintiff on the papers with full regard to the Defendant's Summary identified in the transcript of proceedings. … 6. Any other Orders the Court sees fit to make. 7. Costs"
That Ms Styles is so entitled to revisit the orders made in the earlier proceedings is disputed.
Ms Styles brought a motion in June 2024 which was supported by an affidavit which she had sworn in May, by which she sought that Dick LCM recuse himself from hearing her proceedings against Mr Knox. That application was refused and it is this decision which is the subject of this appeal.

The relief sought

By further amended summons filed in this Court on 14 August 2024, the relief which Ms Styles seeks is leave to appeal from Dick LCM's decision of 3 June 2024, that the appeal be allowed and that each party pay their own costs of the appeal. Her grounds of appeal, should leave be granted, are that: "… i. the Summons is interconnected with the fencing dispute determined by LCM Dick on 22 December 2022; ii. the Magistrate's decision was biased and the facts unfairly dealt with on the weight of the evidence in the fencing matter, and; iii. the Plaintiff fears a biased determination of the Amended Summons (2024/131333) issued against solicitor Geoffrey Knox on the grounds of continued apprehended bias dealing with costs awarded against the Plaintiff by LCM Dick on the civil standard, and a document that was not served on the Plaintiff by the solicitor for the Respondents in breach of Local Court General Division Standard Directions (Pursuant to Practice Note Civ 1) issued to the parties by LCM Dick on 4 April 2022."
Ms Styles' appeal is supported by an affidavit she has sworn. She has led no evidence from the solicitor who represented her in the original Local Court proceedings. Mr Knox relies on an affidavit he has sworn.

Issues

On this appeal Ms Styles submitted that Dick LCM had dealt with the fencing dispute on the papers and without a hearing and that her appeal from his decision had been dismissed on jurisdictional issues.
Mr Knox disputed this and contended that: 1. in the original Local Court proceedings, the case summary Ms Styles relies on was not required to be served upon her; 2. his clients had complied with the directions the Court had made in those proceedings; 3. the matter was heard in open court and the decision was then given; and 4. Dick LCM was correct in later refusing the recusal application.
There was no issue about the test applicable to an application which raises apprehended bias. A judge being 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: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6] and Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [13].
In issue is thus whether: 1. the refusal of a recusal application in the Local Court can be appealed to this Court. That depends on the Local Court Act: Lee v Chae-Sang Cha [2008] NSWCA 13; and 2. Dick LCM erred in refusing that application.

What was decided on the appeal from the original fencing decision

There is no question that Ms Styles is bound by what was decided in Styles v Rowley, she having failed to convince Griffiths AJ that Dick LCM had erred in preferring the evidence on which her neighbours successfully advanced their case.
Judgments of the Local Court are final and conclusive: Local Court Act s38. The Act does not provide a party who is dissatisfied with a judgment or order of that Court or what has been decided on an appeal from such a decision, the right to pursue a second appeal, even on different grounds. Ms Styles not having appealed Griffiths AJ's judgment, she remains bound by what was there decided and is not entitled in either the Local Court or on this appeal, to challenge his Honour's decision.
Griffiths AJ noted that the original proceedings against Ms Rowley and Mr Faulkner had been brought under s45 of the Local Court Act on grounds which included a fencing notice which had been served under s11 of the Dividing Fences Act. A mediation having failed, the Local Court proceedings concerned a dispute about whether the fence had been lowered, which the fencer Mr Milliken and the defendants had claimed, Ms Styles relying on the surveyor's report to dispute this.
Griffiths AJ referred to the oral hearing, after which Dick LCM gave his short decision, which he quoted. Pertinently, he noted at [13] that his Honour's December 2022 decision included: "The evidence filed by both parties gives a very lengthy history of neighbour dispute. But I do need to reference them, even though the claims and counter claims are not relevant to my determination as to what is a sufficient fence. I do have to have regard to how the matter has grown into a defended hearing today. I note in that in the past complaints have been made, and I am not singling any person out here, to council and police. There has been allegations of harassment and intimidation, offensive language, personal trespass, property trespass, excessive noise, dog attacks and defamation. So the parties have attended more than one dispute resolution mediation. Quotes and counter quotes have been exchanged. The legislation does not help the Court when it comes to measuring a fence, but I can take some judicial notice that a stepped fence is not a raked fence. As the name implies a stepped fence looks like stairs steps when complete. The rails of the fence remain horizontal and the posts are extended to accommodate a variance in terrain. A raked fence on the other hand simply follows the ground level, and for the most part not always will have a reasonably consistent ground top height. Aesthetically a raked fence may appear more pleasing to the eye. But it may also be a matter of personal choice or topography that determines the final construction. Erecting a fence is not a precise exercise. On occasions terrain may impact on the height or position of a fence. I have the benefit of photos of the existing fence and I am not satisfied that the existing fence breaches the Fencing Code. While it is clearly not stepped, the measurements made of the fence refer to post height. On the information provided in the statements filed the existing fence to my mind is substantially compliant with planning policy. I am further satisfied that any deviation of the fence from the common boundary line separating the property is within allowable margins and that rectification works undertaken by the respondents have brought the fence within permissible limits."
After noting the various grounds of appeal pursued, Griffiths AJ explained relevant provisions of the Dividing Fences Act, which specifies in s4 the matters which the Court is to consider when determining the standard for a sufficient dividing fence.
Griffiths AJ then turned to consider whether the appeal raised questions of law, concluding that grounds 1 and 3 raised mix questions of fact and law in respect of which leave to appeal should not be given, such leave generally requiring the identification of an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable: at [56] applying Cheng v Motor Yacht Sales Australia Pty Ltd t/as the Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 at [15].
His Honour also concluded that Ms Styles' assertions had misrepresented the nature of the Local Court's task in determining what is a "sufficient dividing fence": at [64]. He noted the evidentiary dispute about the height of the fence, the evidence about which was unclear, despite the surveyor's report on which she had relied: at [66]. Noting that even if the evidence had been clear, that did not mean "that the Local Court was obliged to find that the fence was unlawful and therefore was not a 'sufficient dividing fence' for the purposes of the legislation": at [67].
Griffiths AJ explained at [68] that Dick LCM had to "engage in an evaluative judgment, involving the consideration and weighing of various matters which may not all point in the same direction". He concluded that this was what Dick LCM had done, that being reflected in his conclusion that he was satisfied that the fence was "substantially compliant" with planning policy. Griffiths AJ concluded at [68] that this finding was based on the Magistrate's: 1. view that erecting a fence is not a precise exercise; and 2. assessment of the photos, the measurements of the height of the posts and the information provided in the statements before the Court, presumably including Mr Millikin's statement.
Griffiths AJ also concluded that Ms Styles' other grounds did not raise questions of law. He observed as to the surveyor's report at [76]: "Ground 5 is also predicated on an acceptance of the plaintiff's argument that the Magistrate ought to have preferred and acted upon the surveyor's statement regarding the height of the posts. As noted above, however, that evidence was inconsistent with Mr Millikin's statement that he had lowered the height of the fence to below 1.8 metres. Neither the surveyor nor Mr Millikin was called as a witness. It was a matter for the Magistrate to determine which evidence should be preferred, taking into account other relevant evidence such as the photos. The Magistrate was not obliged to prefer the surveyor's evidence, particularly in circumstances where the land sloped and it was unclear whether the surveyor's measurements had been taken on the plaintiff's lower land or on the defendants' higher land. Ground 5 is rejected."
His Honour also rejected the claim that the reasons Dick LCM gave were inadequate: at [77]-[89].
Taking account of Dick LCM having read the file before the hearing and having had limited assistance from the parties' legal representatives about the question of which evidence about the height of the fence should be preferred, the parties not having called Mr Millikin or the surveyor, despite the significance of the dispute about the height of the fence, Griffiths AJ concluded that Dick LCM was entitled to prefer Mr Millikin's evidence as he did: at [89].
It follows that his Honour's reasons preclude the acceptance of Ms Styles' submission that her appeal failed for jurisdictional reasons. It was decided on the questions of law which she pursued and the mixed questions of fact and law for which she was not refused leave to appeal.
On this appeal Ms Styles cannot challenge these conclusions, nor can this Court make additional findings of fact: Rose v Tunstall [2018] NSWCA 241 at [26]-[30].

The reasons given for the rejection of the recusal application

The ex-tempore reasons which Dick LCM gave for rejecting the recusal application were shortly given and included: "…. In relation to a recusal application where a judicial officer is faced with a recusal application a judicial officer must apply the test of whether a fair-minded lay observer might reasonably apprehend that a person could be impartial. Now, in relation to that I am going to read out a few paragraphs of your notice of motion, because this is what the lay person needs to understand: 'At the mention on 14 February 2022 the plaintiff was required to remain outside the court. At the mid-morning adjournment the plaintiff saw Geffrey Knox leave the courtroom and admit himself into the inner sanctum of the court though the locked double glass doors. The plaintiff immediately perceived that he was joining Magistrate Dick for morning tea. There was no other reason for Mr Knox to be within the locked inner sanctum of the building during the adjournment without Magistrate Dicks invitation. As he fencing matter was being heard following the adjournment the plaintiff perceived that it was inappropriate for Mr Knox to be in communication with Magistrate Dick during proceedings which would cause a fair minded lay observer to reasonably apprehend that the magistrate might not bring an impartial mind to the matter. The fact that Geoffrey Knox was having morning tea with LCM Dick was a logical connection for the plaintiff to perceive prejudice to the plaintiff's case. Court staff would have acknowledged that Mr Knox had access to the door code, a privilege that suggested the solicitor had the magistrate's ear in relation to the fencing matter.' That is in your paragraphs 20, 21, 22 and 23. Those grounds simply are not true. The security doors do not have an access code, the security doors have a swipe card. The swipe card is allocated to an individual with authority. There is no keypad, there is no door access code and every action that is recorded by the swipe of a swipe card is recorded onto the security system, and that is maintained by the sheriff and it identifies the time, the place being the door and the ID of the person whose swipe card is used. … Mr Knox does not have a swipe card. … I did not have morning tea with Mr Knox, I have not had morning tea with Mr Knox and I did not invite Mr Knox to my chambers. In relation to this application I do not have to prove the truth or otherwise of my decisions or your suspicions. But what I have to do is have regard to a fair minded person. But when it is grounded on factual errors such as yours is, I have never met with Mr Knox, he never had access to the door, and I never had morning tea with him or met him for any other reason. Two things need to be remembered, that the observer is taken to be a reasonable person and a person being observed by a professional judge such as myself, you have to understand that we have training and tradition and oaths that require us to discard the irrelevant and the immaterial and prejudicial and deal with the matter on its facts, and I have been doing that for many, many years. So judicial officers are not required to sit in stony silence. Without exposing my views I would not be doing my job at times, and you make issue in relation to whether or not this is a civil case or a dividing fence case. It is a civil case in relation to the onus that has to be met, and that is why it is referred to as civil. It requires me to have a genuine engagement and a debate about the critical issues that are in dispute, and part of my job is to encourage repeatedly settlement. Judicial officers are required to discharge their professional duties. They should not accede too readily to applications for disqualification, otherwise litigants may succeed in effectively influence the choice of judicial officers in their own cases. … It is important that justice must be seen to be done, but it is equally important that judicial officers discharge their duty to sit. … And applications of apprehended bias are to be dealt with using considerable intellectual vigour. They cannot simply be granted because of a perception which is neither reasonable nor fair but may be honest. So that may be your honest perception, but it is in error. Disqualification is only made out by showing there is a reasonable apprehension of bias by reason of prejudgment. There is no prejudgment. I merely have an application before the Court, I has not been padded out yet. Judicial officers in running court, and you have seen it today and you have perhaps seen it on other occasions, make statements and give directions and sometimes warnings and case management and if case management directions are not complied with then the Court seeks explanations. If matters do not settle the Court cannot enquire as to why it did not settle, but merely that it did not settle and the Court moves on. But at times robust discussion in attempting to identify and narrow the issues is still required."
Dick LCM then refused the application, indicating that he was not satisfied that Ms Styles had established grounds which warranted him recusing himself. The Registrar later sent Ms Styles a "Notice of Orders Made", advising that the orders made were "Notice of Motion refused".

The parties' cases

In her affidavit Ms Styles explained that she had accessed the original Local Court file because of Dick LCM's "lack of impartiality in the fencing matter, together with bias exhibited for solicitor Geoffrey Knox's misrepresentation of facts". But she did not pursue claims about alleged bias in her appeal against his Honour's fencing decision, as she could have.
Ms Styles also explained the basis on which she pursued her recusal application, given the applicable law and the course which she claimed the original proceedings had taken. What she deposed to included: 1. her desire to have the matter transferred to the Nowra Local Court; 2. that her summons in the proceedings now on foot in the Local Court sought access to documents filed in the original proceedings, but she appears already to have had that access; 3. that the case summary filed for the defendants in the original proceedings had not been served on her; 4. that Dick LCM had considered that summary in arriving at his conclusions in those proceedings; 5. her understanding of the applicable test on a recusal application and the logical connection which she considers exists between the procedural course which the original proceedings had taken and the recusal application, including her belief that Mr Knox had joined Dick LCM for morning tea on 14 February 2022, after the original matter had been mentioned, at a time when it was inappropriate for Mr Knox to be in communication with his Honour; how she had then approached the Registrar with her concerns; Mr Knox's untrue representations in April 2022 that the height of the fence had been reduced, which his Honour had accepted over her objections, that all having justified her perception of bias; 6. that perception being confirmed in June, when mediation was being pursued; 7. that Ms Styles was unaware of the parties' solicitors having arranged in December 2022 that witnesses were not to be called and the matter was to be heard "on the papers"; 8. her concerns about the inexperience of her solicitor; 9. the way in which Dick LCM had conducted the December hearing, dealt with the parties' objections and accepted Mr Knox's misleading submissions; 10. his Honour's lack of impartiality throughout that hearing and the reasons he gave, with which Ms Styles still took issue in various ways that she explained, including in relation to the costs orders made, which she considered also evidenced his bias; and 11. the proceedings she had brought about the fence in NCAT in March 2024 which were pending.
Ms Styles relied on standard Local Court directions which Dick LCM had issued in the fencing proceedings, which she claims Mr Knox did not comply with, he having failed to serve her with the summary of the defence case which he had filed and which Dick LCM had considered.
Ms Styles contended that the result of the approach which his Honour had adopted at the original hearing had been to prefer a fencer's unsworn letter, issued to whom it may concern, in which he claimed that he had reduced the height of the fence, over a survey conducted by Rygate & West Surveyors, on which she had relied, which established that the fence exceeded the applicable regulation height.
Ms Styles' case was that his Honour's observed bias at the original hearing and favouritism towards Mr Knox in the decision he reached, which was against the weight of the evidence, further confirmed by his Honour's findings in the dispute over her examination, had led to her pursuit of the recusal application.
She contended that in the result, a fair-minded lay observer would reasonably apprehend that his Honour would not be impartial or bring an unprejudiced mind to the proceedings she pursued against Mr Knox, having already dealt as he had with the earlier fencing matter and the examination dispute, to her detriment.
The logical connection between the matter which might lead his Honour to decide her case other than on its legal and factual merits being identified to be "the apprehended bias, lack of objectivity and impartiality in his Honour's findings against the weight of the evidence and without regard to the relevant fencing legislation".
In her oral submissions Ms Styles explained that she had a fear that there could be a reprisal against her for having raised the subject of recusal before Dick LCM, given his previous bias in the fencing matter, which would be carried over to the matter she had brought against Mr Knox.
She also submitted that the bias she relied on was established by the three matters in which Dick LCM had presided, the outcome in each having been in favour of Mr Knox's submissions and negative and unsatisfactory for her.
In her oral submissions Ms Styles accepted that the case statement in the original proceedings on which she relied in the proceedings she had brought against Mr Knox reflected the case which his clients had advanced at the final hearing. Ms Styles contends that the statement was incorrect, but it appears to follow that even if not served and if read by Dick LCM before the hearing, she can have suffered no prejudice, because that was the case which was advanced and she met at the December 2022 hearing. Further, that the appeal from his Honour's acceptance of that case was dismissed.
Mr Knox contended that on this appeal against the refusal of her recusal application, Ms Styles could not seek to relitigate matters which had already been decided in her unsuccessful appeal against the decision made in the original fencing proceedings, to which res judicata principles applied. Nor was the decision that the Local Court had no power to order a stay of her examination, capable of establishing any bias.
The document on which Ms Styles relied was an outline or statement of facts, which had not been required to be served by Mr Knox's clients in the original proceedings and which Dick LCM had indicated did not form part of the case.
The position was that the orders which Ms Styles sought in the current Local Court proceedings were baseless. While no application had yet been made to strike the proceedings out, Dick LCM had been correct in refusing the recusal application, for which Ms Styles had not established the necessary basis.

Leave to appeal must be refused

I am satisfied that the leave to appeal sought must be refused and that even if it was given, Ms Styles' appeal would necessarily fail.
The Local Court Act gives a party to proceedings before the Local Court sitting in its General Division, who is dissatisfied with a judgment or order of that Court, the right to appeal to this Court on a question of law and with leave, on a ground that involves a question of mixed law and fact: ss39 and 40(1). In the case of an interlocutory judgment or order, however, leave of this Court is required: s40(2)(a).
On this appeal it is not a request made during the course of a trial, for a judge to recuse, which is refused without any resulting order being made, which arises to be considered.
Here, pretrial, Ms Styles pursued her recusal application by motion, about which the parties were heard. Her case rested on conclusions earlier reached in other proceedings in which Mr Knox had appeared as the legal representative of other parties. They had successfully resisted both her claims and her resulting appeal, with the result their later successful pursuit of her examination, she not having paid ordered costs, which she also unsuccessfully sought to have stayed.
The refusal of her recusal motion thus resulted in an interlocutory order from which no appeal can be brought without leave: Local Court Act s40. I am satisfied that such leave cannot justly be given, despite Ms Styles not having succeeded in any of the three matters Dick LCM had to decide. That reflecting that she had established no proper basis for the orders she had sought in any of them.
On this appeal the case which Ms Styles pursued directly contradicted findings and conclusions Griffiths AJ had arrived at on her earlier appeal, contrary to the submissions she advanced. She did not appeal his Honour's decision and so is not entitled to challenge it, as she sought to do, in order to advance this appeal.
His Honour's judgment established why many of the arguments she advanced again on this appeal cannot be accepted. The case she advanced can only have been based on a misunderstanding of why her first appeal was rejected. Dick LCM having arrived at conclusions about matters in issue between the parties in the original fencing proceedings, which Griffiths AJ found were open on the evidence and applicable law.
Those conclusions establish that the complaints which Ms Styles advances on this appeal about Dick LCM's decision evidencing bias, are incapable of establishing that he was biased against Ms Styles in the original fencing proceedings.
If bias were an available complaint, it ought to have been advanced on her first appeal. Given the conclusions which Griffiths AJ arrived at on the merits of the appeal which she did advance, complaints about bias would also then have failed.
The way in which the hearing of the fencing proceedings was conducted did not establish any bias. Contrary to Ms Styles' submissions, that hearing proceeded in open court, in the usual way, with the parties leading their evidence and making their submissions, responding to the cases which they respectively advanced. Witness evidence was given by affidavit, with none of them being required for cross examination.
There is nothing unusual about that. It reflects decisions not to challenge the affidavit evidence, over which Dick LCM had no control. He had to decide the cases which the parties chose to pursue at the hearing.
That Ms Styles is dissatisfied with decisions made about how the hearing was conducted, cannot establish the claimed bias. It rather reflects that she has a disagreement with her legal representative.
Ms Styles certainly remains dissatisfied with that representation, as well as with how Mr Knox then successfully represented his clients.
But the submission that Dick LCM decided the original matter "on the papers" was wrong. The matter was heard in open court when unchallenged affidavit and documentary evidence was led by the parties' respective legal representatives. They made oral submissions about what lay in issue between the parties. The forensic decision not to cross examine the deponents of the affidavits on which Mr Knox's clients relied is one by which Ms Styles is bound and cannot be relied on, as she sought to do, to advance either her recusal application, or this appeal.
Another relevant consideration on an appeal which requires leave is the restraint which should be exercised when the matter in dispute involves a small claim, where the costs involved are disproportionate to the amount actually at stake: Rose v Tunstall at [34].
This is such a case. Griffiths AJ having noted that Ms Styles' estimate of the cost of replacing the existing fence to be some $4,050: Styles v Rowley at [59]. That has to be considered together with her pursuit of other proceedings about the fence before NCAT.
Leave will not be given in such a case if it does not raise an issue of principle, question of general importance, or a reasonably clear injustice. I am satisfied that Ms Styles' appeal does not raise such matters and that she has not established either injustice or bias.
The recusal application involved Dick LCM's application of settled principles to the circumstances on which Ms Styles relied, which she dealt with in her evidence. What she advanced and Dick LCM did not accept does not establish that any question of general importance or reasonably clear injustice arises to be considered on this appeal.
In issue is whether the Local Court's standard directions required the service of the statement on which Ms Styles' case rested. On Mr Knox's case both parties filed such a statement and neither served it on the other. Ms Styles relies on r 10.1 of the Uniform Civil Procedure Rules 2005 (NSW) which requires documents filed in court to be served on other active parties. If the matter proceeds in the Local Court, what it required in relation to service of the statement and what occurred may be resolved.
But what Ms Styles advanced is incapable of establishing bias, or that Dick LCM erred in refusing to recuse himself. Such an application cannot lightly be acceded to by a judicial officer. It requires the applicant to establish an evidentiary basis on which the satisfaction which the principles require can be arrived at.
The evidence Ms Styles led was incapable of providing such an evidentiary basis, notwithstanding his Honour's use of the word "tangential" when he referred to Ms Styles' claims. What he said was "[t]he motion today is tangential to a dividing fences application. It was brought by Ms Styles against Mr Faulkner and Ms Rowley who were her neighbours".
As Ms Styles submitted, the word has various meanings. I do not accept that his Honour's use of the word showed that he was insinuating that she was "on tangent completely misguided", rather than that her application was connected with or arising out of the fencing matter. It plainly was.
Ms Styles also relied on his Honour's earlier observation on 3 June that he was functus. But that observation was correct. That is because while the orders she sought related to the earlier fencing proceedings, they having been concluded, the Local Court was functus in respect of those proceedings. By that time, Ms Styles' appeal had already failed.
The conclusion that Ms Styles cannot justly be granted leave to appeal is unavoidable, no matter how fervently she believes all of the matters to which she deposed, or the fears she explained she had.
The mere fact of having made a recusal application, even when challenged on appeal, cannot of itself establish apprehended bias. That alone cannot establish that his Honour might not bring an impartial mind to the resolution of the question he is required to decide in the proceedings which she has brought against Mr Knox.
Further, Ms Styles' unsuccessful appeal against Dick LCM's original decision, appears not to leave open the possibility that his Honour's decision was the result of impermissible bias, given the conclusions which Griffiths AJ reached on the cases which the parties then advanced.
Nor can the decision in relation to the stay of the examination, which turned on the Local Court's lack of power to make the orders Ms Styles then pursued, rather than on the merits of what she sought, establish bias. His Honour had no power to make any different order.
Nor can Ms Styles' failure on the three matters which she pursued before Dick LCM establish bias. That merely reflects that she advanced no evidence or submissions in any of them which could justly have resulted in the orders which she sought. That cannot establish the existence of a reasonable apprehension that his Honour is biased, with the result that she will also lose her fourth application, if it is his Honour who must decide it.
While Ms Styles urged Dick LCM's acceptance of the views of a fencer over those which her surveyor had expressed as establishing bias, given the conclusions which Griffiths AJ came to, that is impossible to accept. As is that his Honour has done anything other than to decide the matters over which the parties have joined issue before him in an orthodox way, applying the relevant law to the facts established on the evidence, as his reasons disclose.
Nothing Dick LCM decided in his earlier decisions supports the existence of the claimed bias Ms Styles seeks to pursue on this appeal, or any error in refusing her recusal application. Nor does the evidence establish a basis for the conclusion that his Honour might not bring an impartial mind to the resolution of the questions he is required to decide in the proceedings against Mr Knox.
His Honour's rejection of Ms Styles' case in the original fencing proceedings and the stay of her examination did not establish any bias. Further, his Honour's refusal of the recusal application appears not only to be open, but correct.
It follows that the leave Ms Styles requires must be refused. Even if it were granted, her appeal would have to be dismissed.

Costs

The usual costs order under the Rules is that costs follow the event. In this case that is an order that Ms Styles bear Mr Knox's costs of the proceedings.
Unless the parties approach to be heard within 7 days with short written submissions, the Court's costs order will be that Ms Styles bear Mr Knox's costs, as agreed or assessed.

Orders

For these reasons I order that: 1. Leave to appeal is refused. 2. Unless the parties approach to be heard within 7 days with short written submissions, Ms Styles is to bear Mr Knox's costs of this application for leave to appeal, as agreed or assessed.

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: 30 October 2024

(2022) 108 NSWLR 342

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