Bowers v Judicial Commission of New South Wales

[2022] NSWCA 69

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Bowers v Judicial Commission of New South Wales [2022] NSWCA 69

Hearing dates:

02 May 2022

Decision date:

02 May 2022

Before:

White JA

Decision:

1. Purported notice of appeal of 22 March 2022 dismissed as incompetent.

2. The respondent to the notice of motion of 7 April 2022, Mr James Bowers, pay the costs of the Judicial Commission of the notice of motion and the appeal.

Catchwords:

APPEAL – Competency – Appeal brought purportedly as of right from refusal to vary orders – Appeal dismissed as incompetent

Legislation Cited:

Supreme Court Act 1970 (NSW), s 101

Succession Act 2006 (NSW)

Cases Cited:

Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333

Charisteas v Charisteas [2021] HCA 29

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Eliezer v Yang [2021] NSWCA 220

James Bowers v Judicial Commission of New South Wales [2021] NSWSC 1570

Category:

Principal judgment

Parties:

James Bowers (Appellant/Respondent to Notice of Motion)
Judicial Commission of New South Wales (Respondent/Applicant)

Representation:

Counsel:
Appellant self represented
P Herzfeld with D Farinha (Respondent/Applicant)

Solicitors:
Appellant self represented
Crown Solicitor of NSW (Respondent/Applicant)

File Number(s):

2022/82151

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2022] NSWSC 179

Date of Decision:

1 March 2022

Before:

Wright J

File Number(s):

2021/174248

Judgment – EX TEMPORE

1. HIS HONOUR: This is an application to dismiss an appeal as incompetent. The applicant is the Judicial Commission of NSW.

2. On 3 December 2021, Wright J sitting in the Common Law Division, gave judgment in favour of Mr Bowers on his application for judicial review of a decision of the Judicial Commission conveyed to him on 11 May 2021 in relation to a complaint he had made concerning a judge of the Court. That complaint was summarily dismissed by the Judicial Commission. By order of 3 December 2021, the decision of the Judicial Commission was set aside and Mr Bowers’ complaint was remitted to it, to be dealt with according to law. The Judicial Commission was ordered to pay Mr Bowers’ costs of the proceedings (James Bowers v Judicial Commission of New South Wales [2021] NSWSC 1570).

3. On 17 December 2021 Mr Bowers filed a notice of motion in which he sought that those orders be varied. He sought an order that the Judicial Commission pay “indemnity costs”. He sought an order that it be required to perform its statutory duty “forthwith”, and he sought an order that “anonymity be lifted”. On 1 March 2022 Wright J dismissed that notice of motion with costs (James Bowers v Judicial Commission of New South Wales (No 2) [2022] NSWSC 179).

4. On 22 March 2022 Mr Bowers filed a notice of appeal. It stated that it was not filed pursuant to leave to appeal. He purportedly appealed from the whole of the decision of Wright J of 1 March 2022. The grounds of appeal were “his Honour erred in law on anonymity, indemnity costs and forthwith”.

5. Under s 101(2) of the Supreme Court Act 1970 (NSW) an appeal does not lie to the Court of Appeal except by leave of the Court of Appeal from an interlocutory judgment or order in proceedings in the Court, or a final judgment or order in proceedings of the Court, other than an appeal that involves a matter at issue amounting to or of the value of $100,000 or more or involves, directly or indirectly, any claim respecting any civil right amounting to or of that value (s 101(2)(e) and (r)).

6. By notice of motion filed on 7 April 2022 the Judicial Commission seeks an order that the purported notice of appeal filed 22 March 2022 be dismissed as incompetent. The Judicial Commission seeks an order for costs of the notice of motion and the appeal.

7. Mr Bowers appeared, for a time, on the application for himself. He represented himself in the proceedings below. At the outset he submitted that I should recuse myself from hearing the application. As I apprehended his submissions, I and every other judge of the court would be obliged to recuse himself or herself by reason of association with the judge of the court about whom his complaint to the Judicial Commission related. I refused the application that I should recuse myself. I did not consider that a reasonable bystander might apprehend that I might not bring an impartial mind to the matters in issue on this application. Those matters do not raise any question about the subject matter or merit of the complaint made to the Judicial Commission (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8]; Charisteas v Charisteas [2021] HCA 29 at [11]). Nor does it raise any question as to the correctness of Wright J’s decisions. Rather, they raise the question as to whether s 101(2)(e) and (r) are engaged so as to require that Mr Bowers obtain leave if he is to appeal from the orders of Wright J of 1 March 2021.

8. After I refused Mr Bowers’ application that I recuse myself, he withdrew from further hearing of the Judicial Commission’s application. He did however provide an email, dated today, which I have marked for identification, and to which I have had regard in considering the Judicial Commission’s application. In that email he raises matters upon which he would seek to rely as to why the notice of appeal should not be dismissed as incompetent.

9. The notice of motion before Wright J raised three issues.

10. The first is whether the costs order previously made should be varied to provide for costs to be payable on the indemnity basis. As the Judicial Commission submits, an application to vary a costs order is interlocutory and not final (Eliezer v Yang [2021] NSWCA 220 at [9]). But even if that application were considered to be final, it is clear that it does not raise an amount in issue of at least $100,000. Mr Bowers represented himself before the primary judge. I am told the Mr Bowers was a solicitor and may still be a solicitor. Even if he is a solicitor, he would not be entitled to remuneration for his own time (Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333 at [57], [63], [99]. He would be entitled to recover disbursements but there is no reason to think that the disbursements he could recover would be any different whether they were assessed on the ordinary or the indemnity basis. In any event, any difference could not conceivably amount to $100,000.

11. The second matter dealt with by the primary judge’s orders was whether the Judicial Commission ought to have been directed to deal with his complaint “forthwith” rather than “according to law”. As the Judicial Commission submits, that issue does not finally dispose of the party’s rights and should properly be characterised as interlocutory. Again, it does not raise any issue or claim to a civil right of the value of $100,000 or more.

12. The third matter in issue concerned his Honour’s decision not to name the judicial officers who are referred to in Wright J’s reasons of 3 December 2021. Again, that determination does not finally determine the rights or liabilities of any of the parties and does not raise any matter to the value of $100,000 or more.

13. Mr Bowers submitted that there had been a breach of the protocol for reserved judgments which may have prejudiced his claim for a legacy under s 66 (see also ss 59 and 65) of the Succession Act 2006 (NSW) to an extent of $100,000 or more and, in any event, that he would have a cause of action against the judicial officer against whom the complaint was made for misfeasance in public office, which would have a value of more than $100,000. Whether that is so or not is not a matter in issue on his purported appeal from the orders of Wright J of 1 March 2022.

14. For these reasons, I order that the purported notice of appeal filed on 22 March 2022 be dismissed as incompetent, and I order that the respondent to the notice of motion, Mr James Bowers, pay the costs of the Judicial Commission of NSW of the notice of motion and the appeal.

15. In his email of today’s date, Mr Bowers submitted that “the matter continue with my filing a summons for leave to appeal and whit (sic) folder to be taken as filed nucn (sic) pro tunc”. Mr Bowers did not remain in court to make any such application. I am not sure what is taken to be intended by it. I have not been provided with a summons for leave to appeal and understand that no summons for leave to appeal or white folder has yet been filed or served. If a summons for leave to appeal is filed, then an application for an extension of time for the filing and service of the summons can be sought in that summons.

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Decision last updated: 05 May 2022