Young v King [2017] NSWLEC 150 | Case summary

The Principles

The principles to be applied to applications for recusal on the grounds of apprehended bias are well established, and have been often confirmed by the High Court and the Court of Appeal.
The test was stated by the plurality in Ebner v The Official Trustee in Bankruptcy ("Ebner") (2000) 205 CLR 337; [2000] HCA 63, at [6], in these terms (emphasis added): ... 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
Not surprisingly, this principle has come to be known as the "double might" test.
The High Court went on to say, in Ebner (at [8]): The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
Significantly, their Honours added (at [19] and [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.
Kirby J said in Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17 (at [114]) that the test "is a stringent one ... designed to uphold very high standards of manifest impartiality on the part of those who exercise public power", and (at [135]) "bias must still be 'firmly established' ... It is not enough that the reasonable bystander has a vague sense of unease or disquiet".
In British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283; [2011] HCA 2, French CJ said (at [33]): In judging whether the appearance of impartiality has been lost difficulties of principle and application can arise. Courts must make their judgments upon criteria referable to a legally constructed, fair-minded lay observer. That means, in effect, that their judgments are made on a subset of the available information. That is because the reasonable apprehension of bias goes to confidence in the courts on the part of litigants and the public, who will not have access to details of the substantive law and all relevant aspects of the practice and procedure of the courts. In determining whether an apprehension of bias has a reasonable basis, the courts are asked to see themselves as others, not judges or lawyers, would see them. As Laws LJ put it in Sengupta v Holmes [[2002] EWCA Civ 1104, at [11]]: "it is not enough to show that those in the know would not apprehend any bias." A standard for apparent bias dependent upon how the matter appeared to judges and lawyers would be difficult to distinguish, in practical effect, from a standard of actual bias.
Later in 2011, the High Court reiterated the Ebner test in Michael Wilson & Partners Ltd v Nicholls ("Michael Wilson") (2011) 244 CLR 427; [2011] HCA 48, the plurality affirming (at [31]): ... that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (in this case, in the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. ...
Their Honours went on to add ([32] and [33]): 32 As the plurality in Johnson v Johnson ... explained, "[t]he hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues." 33 Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias. ... (See also paragraph [63] of Michael Wilson; the Court of Appeal's judgments in Spencer v Bamber [2012] NSWCA 274; Crossman v Sheahan [2016] NSWCA 200; Golden v V'landys [2016] NSWCA 300; and the High Court's decision in Isbester v Knox City Council (2015) 255 CLR 135).
The test I must apply in the present case is, therefore: Would a fair-minded lay observer, acquainted with the relevant facts, reasonably apprehend that it was possible that I would not bring an independent mind to the determination of the Kings' application for personal costs orders against Young's lawyers?
The observer would be aware that judgment No 11 dealt with the conduct of the lawyers in wide-ranging costs proceedings brought by Young, after she had lost her substantive case (in judgment No 6), and a costs order in favour of the Kings had been made (Order (3) in par [237] of judgment No 6).
What the Kings are now seeking is personal costs orders against Young's lawyers in respect of their conduct of those substantive proceedings, i.e. up to and including at least judgment No 6.
It would be plain to the hypothetical observer that that is a completely different question from those dealt with in judgment No 11.

Consideration

Wright said (T05.10.17, p17, L39 - p18, L7): Your Honour is properly the judicial officer that should deal with questions of costs. They are a discretionary consequence of the determination of the principal issues in the proceedings. Logically it must follow that there has been some finding, and in this case whether it's adverse or not isn't to the point, in order to ground the costs application and, importantly, in order to inform the principal exercise of judicial discretion in determining costs. That applies equally to the primary applications involving Mrs Young as it does now to the applications made under ss 98 and 99 of the Civil Procedure Act against Mr Newell and Mr Muriniti. Were it otherwise, then the consequence of any adverse finding which might support an application being made under these sections because it must involve an allegation supporting the grounds in those sections that the Court, which was constitute[d] in the original proceedings, could not deal with the costs applications lest it were seen by a fair minded lay observer as giving rise to an apprehension of bias. It is logically problematic and that's why there must be a clear, logical connection between the allegation and the apprehension, and here, in my submission, what is relied upon simply does not come close to satisfying the test.
He also submitted (par 50): The cost to both parties and the prejudice to the Kings in particular of having to pursue their undetermined applications before a judge unfamiliar with the lengthy and complex history of the proceedings, weighs strongly against the matter being dealt with by a different judge.
Newell, however, argues (T05.10.17, p10, LL2 - 30) that, in judgment No 6 (at [227]ff), I reached a conclusion that there was no evidence probative of Young's allegations, but did not analyse the "plethora of evidence" to give reasons indicating why it was not "probative of particular propositions or elements of the cause of action. In the ordinary course of events, the analysis reflected by the reasons would exhibit reasoning as to whether the evidence did or did not support a representation contended for".
Subsequent to judgment No 6, it is submitted by Newell (Tp11, LL19 - 22), that, especially in judgment No 11 (Tp11, LL22 - 23), I have made "a large number of adverse findings ... effectively prejudging questions that would go to any costs application against Mr Muriniti and [him]self".
In judgment No 11, which dealt with applications for personal costs orders in favour of many people in addition to the Kings, but in respect of costs issues, and not the substantive proceedings, I said, at [210]: I find that Young's lawyers behaved incompetently, unprofessionally, inappropriately, and against the true interests of their client, who was entitled to expect competent and reasonable representation.
The particular, limited context in which paragraph [210] was written - occurring as it does, in the "Conclusion" section of a judgment on costs - was not acknowledged by Newell, who submitted (Tp11, LL29 - 38) that it was: ... a statement, leaving aside the question of whether one agrees with it or does not, that is extremely damaging about those lawyers. It also has something to say about Mrs Young, but that's not the concern here, and that is a very, very serious judgment that has been made there and has already been made. On the basis of that alone, it might be submitted that your Honour should recuse himself from hearing the costs application that has followed upon number 11, but that's not this application. This application pre dates number 11 but your Honour should recuse himself prospectively from dealing with costs applications arising out of the cumulative set of matters leading up to number 11. and, then (Tp11, L50 - p12, L16): ... the conclusion at 210 in number 11 is the cumulative effect of a large number of adverse findings that seem to owe their root of title to the findings in number 6, to which I have taken your Honour at 227 and 230 of number 6. The difficulty, we say, there is that, if all of this hinges, and this ultimately extremely negative finding hinges, on number 6, it can be fairly said that the nominal justification for these statements - and they may be justified or they may not - is, that Mr Newell and Mr Muriniti conducted on behalf of Mrs Young, a case that had no prospects of success by reason variously of an abuse of process or an entire lack of factual foundation for the case. The difficulty then becomes that, while that may or may not be correct, is (sic) has not been substantiated. The root of title is itself a matter not substantiated by the delivery of reasons in number 6 and, therefore, the submission is that it is not simply a case of an adverse or detrimental finding. It's the case of adverse or detrimental finding which arises and grows in significance and grows in increasing pejorative statements but which was never the subject of a substantiation in number 6, the only time evidence was ever considered.
Newell accepts (Tp12, LL18 - 21) that, in order to secure my recusal, he has to satisfy the "fair minded lay observer" test, and he submits (L22 - 23) that such a "relevantly informed and reasonably minded lay observer" would, in this case, be concerned "that matters have been arrived at ... by reference to a bias that he apprehends about that conspiracy allegation or fraud allegation as an example", and "would reasonably apprehend that the matter was approached with a preconception that the fraud allegation did not or could not have a proper foundation".
Newell relied on the Court of Appeal's decision in Mistral International Pty Ltd (Formerly known as Ringgrip Pty Ltd) v Polstead Pty Ltd [2002] NSWCA 321. He took me to only some passages at the very end of the judgment delivered by Sheller JA, with whom Meagher and Beazley JJA agreed.
Sheller JA was very critical of the judgment at first instance in the District Court, and it was alleged that the trial judge had taken a prejudicial view about experts who gave evidence.
The last substantive section of Sheller JA's judgment ([106] - [119]) is headed "Bias". His Honour noted (in [107]): The trial Judge observed that on several occasions during the hearing he had intervened to disclose "my tentative views". He said that he remained open to persuasion. He was intent to focus counsels' attention on the matters which were provisionally of concern to him.
He then quoted the "double might" test, as it was framed by the High Court in Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 (at [11]), and referred to other comments made in that case. The five judges in the majority in Johnson v Johnson said (at [12] and [13]): 12 ... The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial" ... . 13 Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge ..., the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly [("Vakauta") (1989) 167 CLR 568; [1989] HCA 44] ... Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case" ... Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
Sheller JA noted ([107]) that the trial judge found that the reasonable bystander would not have "a perception that he might not bring an impartial or unprejudiced mind to the resolution of the case or any aspect of it". The appellant appealed against that order, and argued it by reference to the trial transcript. The allegedly offending remarks made by the Judge were the subject of the application made before his Honour gave his reserved judgment, but they were carried forward into that judgment (c.f. Vakauta, at 573).
Sheller JA noted ([118]) that the trial Judge "gave no meaningful reasons for preferring" a particular witness's evidence, and concluded ([119]) that " ... the matters to which I have referred were such as might lead a fair minded lay observer reasonably to apprehend that the judgment itself was affected by bias against Ringgrip".
Newell argued (Tp13, LL10 - 29): It is correct to say that that matter has to be articulated but there are contexts in which the matter is self-explanatory. As I have pointed out to your Honour, if a bias has been formed about the, say, fraud allegation and that has informed adverse findings about the lawyers then it is plain that there is a logical connection between those findings and the apprehension that a fair mind cannot be brought to bear on the question of whether the lawyers, in fact, did conduct themselves on the basis that there was no proper foundation for the fraud case. That's my articulation of the logical connection. I don't consider, in this context, it's particularly problematic. The Court of Appeal says it's a useful thing to compel people to do because there have been cases where they try to assert apprehended bias and the logical connection is not there, but it's demonstrably in place in this case, your Honour and, for all of those reasons, but principally relying on the fact that adverse findings have their root of title in a nominal conclusion that a case was brought without evidence or without a proper factual foundation, and that was not substantiated, it is my submission that a fair minded lay observer would reasonably apprehend that a biased mind was brought to bear upon the weighing and evaluation of the evidence in relation to that allegation and that that has subsequently infected a number of other decisions. ...
In reply to those submissions, Wright relied upon Basten JA's judgment in the appeal which Young took to the Court of Appeal from my judgments Nos 6 and 9 ([2016] NSWCA 282), on grounds which included "apprehended bias" on my part. His Honour said at [20] - [23]: 20. The formulation of ground 10, relating to apprehended bias, led the respondents to believe that the ground was restricted to providing support for an order that, should the matter be remitted to the Land and Environment Court, it should be remitted to a judge other than the former trial judge. However, in the course of oral submissions, counsel for Ms Young put the matter on a broader basis. Whilst conceding there had been no recusal application, counsel explained that the apprehension of "a prejudgment" only arose because in handing down judgment in Young v King (No 9), "he indicated a prejudgment by being dismissive of the applicant's claim and indicated by the terms of his judgment that he'd already decided the matter and he wasn't going to consider the evidence, but there was more evidence that might have been considered if he had allowed it in on the question of costs applications against the third parties, and there were very detailed submissions, none of which were considered." [CA transcript 21/6/16 p 82]. Further, reliance was placed on a decision known as Young v King (No 10) handed down a few weeks before the hearing of the appeal, in terms which were described as "even more dismissive". [ibid] 21. As explained in [Michael Wilson] an apprehension of bias is forward looking and asks "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide" ([31]). That test is objective and therefore distinct from any inquiry about actual bias, which would require "an assessment of the state of mind of the judge in question" ([33]). As the reasoning continued, an inquiry based on the content of the judgment delivered may be a mechanism for identifying actual bias, but not for judging a reasonable apprehension of bias. 22. Even assuming that the applicant sought to establish actual bias, the material relied on was self-evidently inadequate for the purpose. Furthermore, such an allegation should not be used to conceal the weakness of a more precise analysis of a specific failing of procedure or error in the judgment. Thus, the submission noted above suggested "prejudgment" in failing to allow evidence to be called. That approach is likely to divert attention from an analysis of the evidence which was tendered, the basis on which it was tendered and the reason for its rejection. 23. Further, the submission revealed an example of that against which Mason CJ warned in Re JRL; Ex parte CJL, [(1986) 161 CLR 342, at 352] namely that "[i]t needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party." There is nothing necessarily indicative of prejudgment in giving reasons which appear to the reader to be "dismissive". A court is entitled to give reasons which are brief, even dismissive, in rejecting an argument which is untenable or carries no weight.
Wright also relied upon paragraph [33] of Michael Wilson (Tp15, LL26 - 33, and see [34] above). It is not sufficient for the applicants for recusal in the present matter to "simply assert, by reference to a series of paragraphs taken out of their context, that that gives rise on the proper test for apprehended bias that the fair minded lay observer might apprehend, that is, conflating the test of actual bias".
Wright also took the Court to Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, especially the following remarks of Gaudron and McHugh JJ (at pages 99 to 100, many citations omitted): At least six members of the Tribunal did not participate in the decision of 24 November 1987, and at least two of them were appointed after the defences to the defamation action were filed. Even if four of those six members were parties to the filing of the defences, the rules of natural justice would only require their disqualification if a reasonable bystander would entertain a reasonable fear that they were incapable of bringing fair and unprejudiced minds to the inquiry ... 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 ... Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [(1969) 122 CLR 546, at pp. 554, 555] ... 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. Thus, in Ex parte Angliss Group, the mere fact that the statement of reasons for a previous decision gave rise to the conclusion that members of the Conciliation and Arbitration Commission tended to favour the adoption of a principle of equal pay for both sexes as soon as it was economically and industrially practicable to do so was not a ground for disqualifying them from sitting on an application for an equalisation of rates of pay for male and female employees brought in reliance upon their reasons. This Court rejected the notion that a fair and unprejudiced mind was "necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it". In Re Shaw; [Ex parte Shaw (1980) 55 ALJR 12, at pp14, 15; 32 ALR 47, at pp50-51, 53]; the transcript showed that a judge of the Family Court of Australia had expressed opinions adverse to the case for the husband before his counsel had opened his case. Nevertheless, Gibbs A.C.J., with whose judgment Stephen J. and Wilson J. agreed, said [p 51] that the evidence did not justify "a conclusion that the views which the learned judge expressed, although strong, were other than provisional, or that it could reasonably be suspected that at the end of the case she would not decide with a fair and unprejudiced mind".
In my judgment No 11 (at [143] - [151]), I referred to a decision by Bromwich J in the Federal Court in Young v Hughes Trueman Pty Ltd [2016] FCA 1176.
His Honour was critical of the conduct by Muriniti and Newell of Young's litigation (especially at [93] - [94], quoted by me at [151]).
Since that decision, there has been further relevant activity in the Federal Court, and Wright informed this Court (Tp17, LL30 - 37) that "special costs" and recusal applications were dealt with by Bromwich J:Young v Hughes Trueman Pty Ltd (No 5) [2017] FCA 690.
Relevantly, Bromwich J said (at [14]) and [24]): 14. Merely reaching an adverse view of the merits of a case, even if firmly expressed, does not necessarily, or even ordinarily, preclude a judge determining the next stage of the same proceedings. Damages hearings routinely follow determination of liability; in the criminal jurisdiction sentences follow determinations of guilt (including in cases by way of trial by judge alone). In any court where costs may be awarded, including in particular indemnity costs, the way in which a case was run will fall to be assessed against the backdrop of an unfavourable prior decision which may go to the heart of the decision to be made. It simply cannot be the case that in such situations a new judicial officer is required as a matter of course for that last stage. The focus must be on a proper basis for recusal. … 24. The recusal application as brought and argued does not identify any proper basis for asserting that an impartial mind cannot or would not be brought to the task at hand. It rises no higher than objecting to adverse findings being made in the September judgment, and the way in which they were expressed. Ultimately, the recusal submissions on behalf of the solicitors appeared to be an alternative frontier for attempting to request the special costs application, following the unsuccessful attempts at a stay and adjournment of hearing of that application. Given the absence of any coherent basis for recusal being advanced, it follows that the recusal application as brought should fail. ...
His Honour decided, on his own initiative, to recuse himself, and noted (in [26]): 26. The Solicitors' submissions on the special costs application and recusal application are the first made when they are acting for themselves (having ceased to retain counsel and solicitors previously acting on their behalf) and not on instructions for Ms Young. They are the first submissions which can therefore be seen to reflect their own views, and not merely those of their client. They were put before me not just as filed submissions, but also as evidence annexed to an affidavit of one of the Solicitors. Prior to those submissions, the Solicitors may have advanced arguments as to why they ran the case as they did and how they gave proper consideration to running such a case, without necessarily impinging on communications with Ms Young that were protected by legal professional privilege. Until those submissions were to hand, there was some limited room for me to conclude that: (1) [the test in Levick v [Deputy] Commissioner of Taxation (2000) 102 FCR 155] was not met when the proper distinction was drawn between the argument that did not succeed (largely being the conspiracy allegation) and an argument that justifies a special costs order; and (2) the Solicitors, however unwisely, may simply have been acting on strident instructions from their client. However, that means of retaining an open mind has been lost from my personal perspective by the form and content of the Solicitors' submissions on the special costs application.
His Honour pointed out (in [27]) that those submissions made "repeated references to [his] failure and the failure of the respondents (and now special costs applicants) to analyze the "evidence" of the conspiracy. It was impossible for [him] to retain an open mind in the face of such absurd and inaccurate submissions".
He then noted (at [28]) that: 28. The problem is that there was simply no evidence of a conspiracy for me to analyse or for the respondents to address. It may readily be observed that I am not the first judicial officer to have formed that conclusion. The conspiracy alleged before me was based on nothing more than reverse engineering of how consent orders made in the NSWLEC came to be made in 2004. The alleged conspiracy rose no higher than an assertion that nothing else can explain how Ms Young was misled as to what the settlement undertaking of her neighbours entailed by way of remedial drainage work. The lawyers still seem to think that this was a viable case to run and that they should have succeeded on behalf of their client, not just in this Court but in other courts in which in excess of 20 decisions have been made adversely to their client and with costs orders made against her
The special costs application was then heard by Lee J, on 27 April 2017, prior to the publication of Bromwich J's reasons, on 19 June 2017.
Wright also suggested (subs pars 46 - 51, and Tp18, L40 - p19, L48)) that the lawyers may have waived their right to seek my recusal, having declined an invitation to do so in 2012, and not having done so till now, despite the numerous hearings and judgments since.
The waiver submission was not strongly pressed, other than as a back-up to the arguments about the merits of the recusal application, but, if I were not to decide the recusal on its merits, I would rely on my discussion of the waiver principles, and their application, in my recent judgment in Alexandria Landfill Pty Ltd and Boiling Pty Ltd v Roads and Maritime Services [2017] NSWLEC 148, at [17] to [27].

Young v King

At a glance

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Judgment (13 paragraphs)

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Cases Cited (31)

Cited By (4)