Bodycorp Repairers Pty Ltd v Australian Associated Motor Insurers Ltd (No 2)

[2018] VSCA 175

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0076

BODYCORP REPAIRERS PTY LTD (ACN 068 589 408)	First Applicant
and
ANTONIO MURDACA	Second Applicant
v
AUSTRALIAN ASSOCIATED MOTOR INSURERS LTD (ACN 004 791 744) & ORS (No 2)	Respondents

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JUDGE:	WHELAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 May 2018
DATE OF JUDGMENT:	20 July 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 175

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PRACTICE AND PROCEDURE – Recusal application – Apprehended bias – Findings made in prior proceedings – Test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr J Levine	Maciel Pizzorno & Co
For the First, Second, Third and Fourth Respondents	Mr C Madder	Moray & Agnew
For the Fifth Respondent	Mr D Aghion	Clyde & Co
For the Sixth, Seventh and Eighth Respondents	Mr N De Young	Minter Ellison

WHELAN JA:

1. At the commencement of the hearing of this application for leave to appeal counsel on behalf of the applicants made an application that I recuse myself.  After hearing their submissions, I indicated that I did not consider that the applicants had established the matters that needed to be established in order for me to recuse myself and that I would give reasons subsequently.  These are those reasons.

1. The applicants’ counsel submitted that I ought to recuse myself because of matters relating to two earlier joint judgments of this Court concerning the applicants.  The first is a joint judgment of myself, Santamaria JA and T Forrest AJA in Bodycorp Repairers Pty Ltd v Holding Redlich[1] (‘the Holding Redlich matter’).  The second is a joint judgment of the Chief Justice, myself and McLeish JA in Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd[2] (‘the Oakley Thompson matter’).

   [1][2018] VSCA 17.

   [2][2018] VSCA 33.

1. In relation to the Holding Redlich matter, it was submitted that at the outset of that hearing I had indicated that all of the judges on that Court knew a member of senior counsel whose conduct was the subject of material relied upon on the application.  Counsel on behalf of the applicants made an application that we should recuse ourselves on that basis, and on a different basis which is not presently relevant.  We each determined not to recuse ourselves because it seemed to us that the proposed grounds of appeal which were relevant did not require us to form a view as to the particular senior counsel’s credit or his conduct.  We indicated that if that position changed during the hearing we would alert the parties.  The submission made by counsel for the applicants in relation to my recusal was that, notwithstanding the statement that we did not consider that any issue of that counsel’s credit or conduct was raised by the relevant proposed grounds, the joint judgment had nevertheless ‘vindicated’ him.  The passages relied upon in relation to that submission are at paragraphs 92 and 95 of the joint judgment. 

1. The second basis upon which it was said that I ought to recuse myself was the following finding made in the joint judgment in the Oakley Thompson matter:

The associate judge felt the need to include observations on the duties of counsel in his reasons.  Having read the transcript, in our view, those observations were warranted.  Certainly, they were not so unreasonable as to reveal the existence of apprehended bias.[3]

It was contended that there had been a failure to accord natural justice by the Court, of which I was a member, in reaching this conclusion.

[3]Ibid [65].

1. The application that I should recuse myself was not put on any express legal ground, but I proceeded on the basis that the application was founded upon apprehended bias.  Thus, the applicable test is that set out in Ebner v Official Trustee in Bankruptcy.[4]

   [4](2000) 205 CLR 337 (‘Ebner’).

1. In my opinion the matters relied upon did not warrant recusal applying the principles set out in Ebner.  The applicants did not establish that a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions I was required to decide in this application for leave to appeal.

1. In relation to the Holding Redlich matter, the paragraphs relied upon in the joint judgment are not a ‘vindication’ of the particular senior counsel.  The paragraphs deal with a submission by the applicants that the primary judge in that case had demonstrated apprehended bias.  The paragraphs relied upon address findings made by the primary judge which we found were open to him and which accordingly did not form a proper basis for a conclusion of apprehended bias.  There was no ‘vindication’ of the particular senior counsel by us.

1. In relation to the Oakley Thompson matter, in the joint judgment it was necessary to address a contention by the applicants that the associate judge whose decision was sought to be appealed had displayed apprehended bias by making reference to the duties of counsel in his reasons for judgment (among other things).  In order to deal with that submission it was necessary to determine whether what the associate judge had said was such as to indicate a relevant inability to bring an impartial mind to bear on the issues in dispute.  That issue was raised by the applicants and was the subject of submissions.  There was, in my view, no proper basis for the contention that there had been any denial of natural justice. 

1. For those reasons I determined that I ought not to recuse myself.