Bridge Bar v Dog at the Bridge Pty Ltd
[2016] VSC 224
•10 May 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
S CI 2014 04877
| BRIDGE BAR INVESTMENTS PTY LTD (ACN 154 906 377) | First Plaintiff |
| v | |
| BRYN MCMURRAY | Second Plaintiff |
| and | |
| DOG AT THE BRIDGE PTY LTD (ACN 161 759 959) & ORS | Defendants |
---
JUDGE: | ALMOND J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 April 2016 |
DATE OF JUDGMENT: | 10 May 2016 |
CASE MAY BE CITED AS: | Bridge Bar & Anor v Dog at the Bridge Pty Ltd & Ors |
MEDIUM NEUTRAL CITATION: | [2016] VSC 224 |
---
COURTS AND JUDGES — Apprehended bias — Principles – AJH Lawyers Pty Ltd v Careri – Fair-minded lay observer – Cumulative approach – Judicial conduct – Multiple hearing dates – Exchanges between bench and counsel – Regularisation of affidavit – Application dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr A Herskope | JBT Lawyers |
| For the First Defendant | Mr A Meagher | Blue Rock Partners |
| For the Fourth and Fifth Defendants | Mr P J Hayes with Mr M D Tehan | Cornwall Stodart |
HIS HONOUR:
Since the entry of this proceeding into the Commercial Court in November 2014 I have managed the interlocutory steps at numerous hearings. The plaintiffs make application by summons that I recuse myself from further managing the proceeding and that I not preside at the trial. There was no affidavit material filed in support of the summons. Instead, the plaintiffs rely on the transcript of directions hearings, reasons delivered in a Ruling and affidavits previously filed in the proceeding.
The application is based on the contention that my conduct during the management of the interlocutory stages of the proceeding is such that 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.[1]
[1]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344 [6] (‘Ebner’).
In essence, the plaintiffs submit that there has been an imbalance in the treatment of the parties (particularly the treatment of evidence and the level and number of criticisms directed to the plaintiffs) which gives rise to an apprehension of bias in favour of the defendants (and/or their advisers) or against the plaintiffs (and/or their advisers).[2]
[2]Plaintiffs’ outline of submissions dated 20 April 2016 [13] (‘Plaintiffs’ outline’).
The plaintiffs contend that the apprehension of bias arises by reason of the cumulative effect of a number of factors or matters not from any individual factor or matter.
Relevant principles
There was common ground on the relevant legal principles which inform the proper determination of a recusal application based on apprehended bias.[3]
[3]See AJH Lawyers Pty Ltd v Careri (2011) VR 236, 241 [17]–[25] (Warren CJ, Hansen JA and Almond AJA) (‘AJH Lawyers’).
The test to be applied in determining whether a judge is disqualified by reason of apprehended bias 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.[4] In Ebner the High Court observed that the question is ‘one of possibility (real and not remote), not probability’.[5]
[4]Johnson v Johnson (2000) 201 CLR 488, 492 [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ); Ebner (2000) 205 CLR 337, 344 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Michael Wilson & Partners v Nichols (2011) 244 CLR 427, 437 [31] (Gummow ACJ, Hayne, Crennan and Bell JJ).
[5](2000) 205 CLR 337, 345 [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
The test is objective based on the view of a hypothetical, reasonable observer of the judge’s conduct.[6]
[6]Johnson v Johnson (2000) 201 CLR 488, 493 [12] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ); Michael Wilson & Partners v Nichols (2011) 244 CLR 427, [32]–[33] (Gummow ACJ, Hayne, Crennan and Bell JJ).
Apprehended bias may exist when the conduct, viewed cumulatively, gives rise to such a conclusion. In AJH Lawyers, for instance, the Court of Appeal had regard to the judicial officer’s conduct over a number of hearing days.[7]
[7](2011) VR 236.
The Full Court of the Federal Court also used a cumulative approach in Parramatta Design & Developments Pty Ltd v Concrete Pty Ltd:
After anxious consideration we have reluctantly formed the view that the ground of appeal which alleges that the trial miscarried on the ground of apprehended bias succeeds. We do not think it necessary to canvass in detail every complaint upon which reliance was made; what is important is the cumulative weight of the material that the appellants rely upon. [8]
[8](2005) 144 FCR 264, 277 [41] (Branson, Kiefel and Finkelstein JJ) (‘Parramatta Design’). While Parramatta Design was reversed in Concrete Pty Limited v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577, the High Court affirmed the approach of the Full Court of the Federal Court in Parramatta Design in relation to the cumulative effect of judicial conduct in an apprehended bias application: Concrete Pty Limited v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577, 610–11 (Kirby and Crennan JJ), 636 (Callinan J).
The two-step approach specified in Ebner requires an application for recusal based on judicial conduct to:
(i) identify the judicial conduct said to give rise to an apprehension of bias; and
(ii) articulate the logical connection between the conduct and the feared deviation from the course of deciding the case on its merits.[9]
[9](2000) 205 CLR 337, 345 [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
Judges have a duty to exercise judicial functions and should not too readily grant a recusal application.[10] That said, the principle is not a ‘blanket that smothers the effect of disqualification where it has already arisen’.[11]
[10]See Antoun v R (2006) 224 ALR 51, 60 [34] (Kirby J) (‘Antoun’); Ebner (2000) 205 CLR 337, 348 [19] (Gleeson CJ, McHugh, Gummow and Hayne JJ); AJH Lawyers Pty Ltd (2011) VR 236, 242 [19] (Warren CJ, Hansen JA and Almond AJA).
[11]Antoun (2006) 224 ALR 51, 60 [35] (Kirby J).
The fictional lay observer will not be as informed as a litigation lawyer yet is ‘taken to understand the dynamics of modern judicial practice’[12] in that judges are not expected to ‘sit mute while evidence is advanced and arguments are presented’.[13]
[12]AJH Lawyers (2011) VR 236, 243 [23] (Warren CJ, Hansen JA and Almond AJA).
[13]AJH Lawyers (2011) VR 236, 243 [23] (Warren CJ, Hansen JA and Almond AJA); Johnson v Johnson (2000) 201 CLR 488, 493 [13] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
When a party makes an application, the judge must normally give the party a reasonable opportunity to make submissions in support of the application. If a judge refuses an application before receiving any submissions, the impression created by that conduct is not erased if the judge, after having pronounced his or her decision, agrees to listen to the party’s submissions under sufferance.[14]
[14]Antoun (2006) 224 ALR 51, 52 [2] (Gleeson CJ), [36] (Kirby J) and [87] (Callinan J); AJH Lawyers (2011) VR 236, 243 [25] (Warren CJ, Hansen JA and Almond AJA).
The plaintiffs rely on the following asserted factors or matters.
(i)Refusing to hear submissions from the plaintiffs in relation to a costs application then receiving submissions under sufferance[15]
[15]The factors or matters are fully set out in the Plaintiffs’ outline [11].
This complaint arises from a directions hearing on 9 October 2015. One of the matters raised at this directions hearing was an extant summons which had been issued on behalf of the fourth and fifth defendants seeking security for costs against Bridge Bar Investments Pty Ltd (the first plaintiff) and Mr McMurray (the second plaintiff). Counsel for the plaintiffs, Mr Herskope, addressed the Court as to the reasons why the summons should be dismissed inter alia against Mr McMurray. A fundamental reason for the application to dismiss the summons against Mr McMurray arose from the fact that the solicitors for the fourth and fifth defendants had advised the plaintiffs by letter that they no longer proposed to seek security for costs against him. At the conclusion of his submissions, Mr Herskope was asked whether there was anything more that he wished to say.[16] Mr Herskope replied:
At the very least we should have an order dismissing it against the first plaintiff, with an order for costs; that flows from the letter. Beyond that there’s nothing more I wish to say…[17]
[16]T 16.21-23 (9 October 2015).
[17]T 16.24-28 (9 October 2015).
Counsel for the fourth and fifth defendants, Mr Hayes, was then invited to make submissions. After hearing submissions from Mr Hayes, I said as follows:
HIS HONOUR: What I will do is dismiss it against the second plaintiff, the individual, and I will order that the first (sic) and fifth defendant pay the second plaintiff’s costs of and incidental to the security for costs application against the second plaintiff.[18]
[18]T 22.22-26 (9 October 2015).
After this order was formulated, Mr Herskope rose to argue that the order should be qualified to require costs to be paid immediately. Initially I refused, and indicated that the costs order had already been made. Despite this, I asked counsel for the plaintiffs why he wanted such an order and heard submissions from both counsel on that question. At the conclusion of their submissions, I asked whether anybody else wanted to say anything further before I made orders.
Viewed overall and in context, the submissions were not received ‘under sufferance’. I permitted counsel for the plaintiffs to change his previously expressed position (that he had nothing more to say) and allowed full argument from both sides. Every party with an interest in the issues being discussed had a fair opportunity to make submissions about costs.
In my view, a fair-minded lay observer would not be troubled by the engagement between the judge and counsel on this occasion.
(ii)Commending the fourth and fifth defendants for ‘stepping back’ from their application for security for costs in circumstances where it was the plaintiffs’ position that the application ought never have been made and was bound to fail
Counsel for the plaintiffs submitted that his clients were denied the opportunity to argue that the application for security for costs and the underlying basis for it was misconceived. In my view, this submission is without merit.
The fourth and fifth defendants had advised the plaintiffs by letter prior to the directions hearing that they did not wish to prosecute the summons seeking security for costs against one of the plaintiffs.[19] The plaintiffs were not denied the opportunity to be heard. The application for security for costs was not listed before the Court for adjudication at the directions hearing. No substantive argument was made, called for or sought by any party at that time. The withdrawal of the security for costs application against the second plaintiff narrowed the scope of the application which would (ultimately) minimise expense, inconvenience and the use of Court time. In the circumstances, the commendation was not inappropriate.
[19]Though the letter erroneously referred to the first plaintiff (the corporation) when the author intended to refer to the second plaintiff (the individual).
As a consequence of the withdrawal of the summons against the second plaintiff the fourth and fifth defendants were ordered to pay the second plaintiff’s costs of and incidental to the security for costs application against the second plaintiff. There is no basis for deriving an apprehension of bias from these circumstances.
(iii)Unfair criticism of the plaintiffs regarding late service of an affidavit, exhibiting correspondence without setting out in the body of the affidavit the substance of the correspondence, and not paginating exhibits to an affidavit
This complaint arises from a directions hearing on 29 May 2015. During the evening prior to this directions hearing, the plaintiffs late served an affidavit and exhibits, which together exceeded 100 pages. The criticism about late service was summarised as follows:
HIS HONOUR: I am just saying to you, Mr Bowers-Taylor, that late serving affidavits the night before, after the close of business, gives no opportunity for either your opponents or for the judge to properly absorb the material that your client wants to rely upon.[20]
[20]T 6.2-6 (29 May 2015). See also T 4.19-5.17 (29 May 2015).
In my view, such criticism was justified and proportionate.
The plaintiffs’ complaint that the fourth and fifth defendants late served an affidavit on that day (29 May 2015) without criticism is also without merit. The fourth and fifth defendants’ affidavit was prepared in response to the late served affidavit received from the plaintiffs’ solicitors and was unavoidably late served. Criticism of the fourth and defendants or their legal advisers for a late served response was therefore unwarranted.
In addition, counsel for the plaintiffs submits that the plaintiffs were unfairly criticised for not paginating exhibits to an affidavit. There is no merit in this submission. This criticism must be considered in its context. Exhibits to the plaintiffs’ late served affidavit included a 53-page unpaginated bundle of emails and a 10-page unpaginated bundle of emails.[21] The affidavit contained minimal reference to the content of the extensive email correspondence and it was difficult to access and therefore absorb the material in the context of the limited time available at a directions hearing. The matter was stood down to enable the solicitor for the plaintiffs to paginate the exhibits. After a short adjournment, the matter continued with reference to the (now paginated) exhibits. This made it possible to efficiently follow the argument put by the plaintiffs, expedited the hearing and ensured that the transcript would be intelligible.
[21]Exhibits CJ3 and CJ5 to the affidavit of Clare Jordan sworn 28 May 2015 respectively.
Counsel for the plaintiffs submitted that when I adjourned the Court to allow the exhibits to be paginated I left the bench in an ‘absolute huff’.[22]
[22]T 16.18 (21 April 2016).
If by the use of the word ‘huff’ the plaintiffs seek to imply that I left the bench in a fit of pique, I reject the implication. A short adjournment was required in order to enable the solicitor for the plaintiffs to present the plaintiffs’ material in a satisfactory fashion.
In footnoted references in the plaintiffs’ submissions relating to purported unfair criticisms, the plaintiffs refer to other affidavits of other parties having been late served, in similar form or with unpaginated exhibits without criticism. This submission by reference to a footnote was not sufficiently developed to enable meaningful comparisons. The context in which such affidavits were made, the extent to which they were relied upon and the nature of the relevant exhibits was not addressed.
(iv)Permitting the first defendant’s solicitor to give oral evidence to regularise an otherwise inadmissible affidavit without comment or criticism and allowing the affidavit to be relied upon
The complaint arises from a directions hearing on 10 December 2015. Although it is correct to say that the first defendant’s solicitor was permitted to give oral evidence to regularise an affidavit, it is not correct to say that this occurred without comment or criticism. The following remarks were directed to counsel for the first defendant, who sought to rely on the affidavit:
HIS HONOUR: Mr Herskope has got a good point hasn’t he. He doesn’t need to hold your client’s hand. He’s given you the rule which sets out quite clearly as you know on an interlocutory application that an affidavit may contain a statement based on information and belief if the grounds are set out.[23]
[23]T 10.30-T 11.1-4 (10 December 2015).
The plaintiffs submitted correctly that the first defendant’s affidavit failed to comply with the rules requiring the deponent of an affidavit to state facts of the deponent’s own knowledge or, where statements of fact are based on information and belief, to set out the grounds.
In order to address the plaintiffs’ concern, I asked the deponent, who was present in Court, to step into the witness box and to disclose the nature and the source of the information giving rise to his belief. Oral evidence was given to that end and counsel for the plaintiffs were given an opportunity to cross-examine the witness.
The following exchange then took place:
HIS HONOUR: Mr Herskope, that rectifies the former problem with the material.
MR HERSKOPE: It does.
HIS HONOUR: I think there is no point in me making – the witness swear another affidavit, given that evidence. Essentially you attain the remedy that you sought against the first defendant.
MR HERSKOPE: Yes, Your Honour. Thank you. Subject to arrangements being made for production of those documents and inspection, it doesn’t seem that we need to press that any further and I’m indebted to Your Honour’s assistance for creating the sort of efficiency that we try to achieve…[24]
[24]T 5.10-22 (10 December 2015). See also T 10.6-8 (10 December 2015).
Having endorsed the course taken by the Court in management of this issue, the complaint rings hollow. A fair-minded lay observer in court at the time would have concluded that the plaintiffs were satisfied with the course taken.
(v)Relieving the first defendant of the costs of the day when its attendance was necessary by reason of the inadmissibility of the affidavit
This complaint also arises from the directions hearing on 10 December 2015.
By consent orders made on 13 November 2015, the matter was listed for directions on 10 December 2015. Counsel informed the Court on 10 December 2015 that there had been no discussions about further directions. This is contrary to the usual practice between legal practitioners: to communicate with each other about appropriate directions in advance of directions hearings so that consent orders can be made ‘on the papers’ if appropriate. Such communication did not occur in this instance. For this reason alone, it was necessary for counsel for the first defendant to attend the directions hearing.
The plaintiffs’ application by summons for particular discovery (insofar as it related to the first defendant) resulted in the provision of an affidavit of particular discovery of Mr Holdsworth of 7 December 2015 for and on behalf of the first defendant which responded to the matters raised in the plaintiffs’ summons dated 20 November 2015. In that sense, the plaintiffs attained the remedy they sought in the summons. The first defendant was ordered to pay the plaintiffs’ costs of and incidental to the plaintiffs’ summons (save for the costs of the day).[25] Considered overall, a fair-minded lay observer would not have any concerns about this costs order.
(vi)Accepting evidence from the bar table from counsel for the fourth and fifth defendants
[25]Insofar as those costs relate to the summons as against the first defendant.
There are several complaints in this category. Each arises from the directions hearing on 10 December 2015.
The first transcript reference follows a passage of transcript where counsel for the fourth and fifth defendants informed the Court that the solicitor for the plaintiffs had attended to inspect documents and had taken copies or requested copies of documents. Counsel was plainly conveying his instructions. It was obvious that the instructions were not proffered as evidence. Indeed, counsel for the fourth and fifth defendants spoke of a reluctance on the part of the fourth and fifth defendants ‘to go into evidence’[26] on the issue. No objection was made by counsel for the plaintiffs at the time. No findings were made on these submissions and it is not apparent from the transcript passages relied on that the submissions were accepted as evidence.
[26]T 16.28-17.9 (10 December 2015).
The second transcript reference[27] must be considered in the light of the preceding paragraph where there is an exchange about the plaintiffs’ evidence to the effect that certain documents had not been produced for inspection.[28] Counsel for the fourth and fifth defendants was asked whether there was any dispute that the relevant documents should be produced for inspection.[29] The following exchange occurred:
MR HAYES: We say they have been, Your Honour, and we haven’t gone into evidence on that point, but I can put Ms Kanhai in the box right now and in 30 seconds I can swear up to that.
HIS HONOUR: I don’t think that’s fair to your opponent to be putting on material without notice of substance. It is a bit different to formalising an affidavit.[30]
[27]T 19.1-4 (10 December 2015).
[28]T 18.26-30 (10 December 2015).
[29]T 18.30-31 (10 December 2015).
[30]T 19.1-7 (10 December 2015).
It is not apparent from this exchange that the Court has accepted, or was inclined to accept, counsel’s submissions as evidence. The indication is to the contrary.
The following exchange then took place with counsel for the fourth and fifth defendants:
MR HAYES:Your Honour, we say this: I am instructed that they have never – the plaintiffs’ solicitors have never – until the summons was filed, the plaintiffs’ solicitors have never specifically asked for those documents and that’s as far as I can take it, Your Honour.
HIS HONOUR :So you would say there should have been a letter requesting production of those documents and there wasn’t.
MR HAYES: Yes, there wasn’t.[31]
[31]T 19.22-29 (10 December 2015).
Here it is clear that counsel for the fourth and fifth defendants was conveying his instructions to the Court. This is a typical, if mundane, example of exchanges which take place at directions hearings. The fact that a judge has listened attentively to a submission and has engaged with counsel in order to better understand those submissions does not mean that such remarks have been accepted as evidence. No findings were made on this point.
The final complaint in this category also needs to be read in context. Counsel for the plaintiffs was, in effect, asked whether all of the discovery issues had been dealt with. The following exchange took place:
HIS HONOUR: That is it then, isn’t it, Mr Herskope?
MR HERSKOPE: Save for clarification of the stick, Your Honour.
HIS HONOUR: Yes. The USB stick. What’s the position with the USB stick?
MR HAYES:Your Honour, at the moment - - -
HIS HONOUR: I say the USB stick conveniently that it’s the information that hasn’t been reviewed.
MR HAYES:There is an enormous amount – I am instructed there’s an enormous amount of information and they won’t fit on a USB that’s available. They require a large storage device and they cost a couple of hundred dollars. But the – - -
HIS HONOUR: What’s the best way of handling it?[32]
[32]T 80.23-81.4 (10 December 2015).
It is plain from the transcript that it was counsel for the plaintiffs who requested clarification in relation to this discovery issue. This resulted in an exchange between the Court and counsel for the fourth and fifth defendants on the subject. In response, counsel for the fourth and fifth defendants conveyed his instructions to the Court.
A fair-minded lay observer would not have considered as untoward any of these interactions, which are customary in directions hearings in the Commercial Court.
(vii)Permitting the first defendant to substitute for an exhibit which contained a privileged email an exhibit which did not contain the privileged email without comment or criticism of the first defendant
For this complaint, the plaintiffs relied on assertions in their written submissions. There were no transcript references provided in the written submissions or referred to orally. The relevant directions hearing was not specified. The context was not elaborated upon. In the circumstances, I am unable to evaluate this complaint without speculating.
(viii)The plaintiffs complain that an indemnity costs order was not made in relation to the plaintiffs’ application for particular discovery, which was opposed by the first, fourth and fifth defendants
This complaint arises from a directions hearing on 6 February 2015.
Counsel for the plaintiffs had submitted that some critical documents were provided by the fourth and fifth defendants without attachments and there were documents missing or unexplained and that this had all been set out in correspondence. I informed counsel for the fourth and fifth defendants that if critical documents had been supplied in part it would be expected that the rest of the documents would be supplied unless for good reason. I suggested that the parties should sort out their problems practically, that if attachments to documents had not been provided then they should be, that as an overarching position commercially sensitive documents should have a confidentiality regime.
The transcript reveals that all parties were put on notice that they should try to sort out their problems practically and, if the parties came back with petty discovery complaints, there would be costs consequences.
This interaction between counsel and bench reflects both encouragement and an expectation of parties through their counsel to cooperate to resolve issues about discovery, to promote pragmatism and avoid petty disputes. The remarks were directed at all concerned (‘…you will be treated exactly the same as Mr Hayes’ clients…so I am putting everyone on notice’).[33]
[33]T 25.26-29 (6 February 2015).
The plaintiffs’ complaint – that the subsequent opposed application for particular discovery did not result in an indemnity costs order in favour of the plaintiffs, despite the fact that the plaintiffs were successful on that application, and that there is therefore some unfairness – is untenable. A fair-minded lay observer would not have any concerns with this outcome. The plaintiffs only partly succeeded in their application. The parties did not engage in petty behaviour in relation to particular discovery. Each had legitimate arguments to address. In the result, the plaintiffs’ costs were reduced to 75 per cent and a standard costs order was made.
(ix)Referring to the plaintiffs’ conduct as ‘obstruction’ in a revised ruling delivered on 11 March 2016 and ordering that the plaintiffs pay indemnity costs
This complaint arises out of rulings delivered on 11 March 2016. In the primary ruling, paragraphs of the plaintiffs’ further amended statement of claim were struck out and the plaintiffs were ordered to provide further particulars. In the costs ruling, the plaintiffs were ordered to pay indemnity costs. The plaintiffs have not sought leave to appeal with respect to either ruling.
The plaintiffs complain about the use of the word ‘obstruction’ in the costs ruling with reference to the plaintiffs’ conduct.
The evidence from an affidavit filed on behalf of the first defendant reveals the following.
On 6 July 2015, the first defendant emailed a request for further and better particulars to the plaintiffs (‘first request’).[34] On 5 August 2015, 17 September 2015, 24 September 2015 and 5 November 2015, the first defendant requested by email that the plaintiffs provide a response to the first request.[35]
[34]Paragraph 5 of the affidavit of Daniel Holdsworth dated 18 December 2015.
[35]Paragraph 7 of the affidavit of Daniel Holdsworth dated 18 December 2015.
On 5 November 2015 under the subject heading ‘Requests for further and better particulars’, the first defendant emailed the plaintiffs with a further request for further and better particulars dated 5 November 2015 (‘second request’) and referred to the first request noting that the plaintiffs had not provided any response, despite requests.[36]
[36]Paragraph 6 of the affidavit of Daniel Holdsworth dated 18 December 2015.
The solicitor for the plaintiffs responded by email later that day under the subject heading ‘Requests for further and better particulars’ as follows:
Dan
Why don’t you conspire with the other defendants again (…).
Regards,
Jonathan Bowers-Taylor[37]
[37]Tab 3 page 19 of Exhibit DH1 to the affidavit of Daniel Holdsworth dated 18 December 2015. Some additional words in the sentence were redacted.
On 25, 26 and 27 November, and on 2 December and 4 December 2015,[38] the first defendant requested the plaintiffs provide a response to the second request.
[38]Paragraph 9 of the affidavit of Daniel Holdsworth dated 18 December 2015.
In the letter from the first defendant to the plaintiffs dated 2 December 2015, the solicitor for the first defendant wrote:
Lastly, we again note that despite our repeated requests you have still not responded to our client’s further request for further and better particulars dated 4 November 2015. Please provide a response by 4pm on Thursday 3 December 2015.
Take notice that if you do not, our client may without further notice bring an application seeking orders for further and better particulars in the terms sought in the further request.[39]
[39]Paragraphs 24 and 25 of the affidavit of Daniel Holdsworth dated 18 December 2015.
Ultimately, on 4 December 2015, the plaintiffs served further and better particulars in response to the first defendant’s requests dated 6 July 2015 and 5 November 2015.[40]
[40]Paragraph 22 of the affidavit of Daniel Holdsworth dated 18 December 2015.
No argument was advanced to the effect that the use of the word obstruction was unjustified. No reference was made to the extensive correspondence exhibited to the affidavit of Daniel Holdsworth dated 18 December 2015. After reviewing the correspondence relating to the requests for further and better particulars, including the intemperate response of Mr Bowers-Taylor in the 5 November email, the detailed explanation given to the plaintiffs of the first defendant’s objections to the further amended statement of claim (which included a warning to the plaintiffs that the first defendant would seek indemnity costs), I am satisfied that a fair-minded lay observer would not consider the reference to obstruction by the plaintiffs or the fact that indemnity costs were ordered against the plaintiffs was unreasonable.
The fact that no equivalent comment was made in relation to the first, fourth and fifth defendants in respect of the application for particular discovery, and that indemnity costs were not ordered in relation to that application, is of no moment. Each application involved different considerations. Each application required consideration of its merits. Had it been appropriate to order indemnity costs against one or other of the defendants to the plaintiffs’ application that would have occurred.
(x)Stating that ‘I do recall your client made a big effort at the front end to disclose critical documents’ which was directed to counsel for the fourth and fifth defendants, is an unfair characterisation of what had occurred
This complaint arises from a directions hearing on 10 December 2015. Again, it is necessary to consider this observation in context and to consider the full exchange which took place in relation to discovery of critical documents:
HIS HONOUR: The financial statements and the bank statements and things like that are going to be material to - - -
MR HAYES: Well, they are, yes.
HIS HONOUR: Because it will show the revenue or not.
MR HAYES: They are, yes.
HIS HONOUR: And that is highly relevant whichever way – whether one does a taking of account or a claim for damages.
…
MR HAYES:Of course, at first blush, yes. But that proposition, Your Honour, is worth drilling down a little deeper and we say that in this instance, Your Honour, an enormous amount of material has been already provided and in many respects - - -
HIS HONOUR: In dribs and drabs over, you know, a year, and I know there was some more in September and there’s some more in November.
MR HAYES: Your Honour, we say with respect that would be an unfair criticism of my clients that were made, because - - -
HIS HONOUR: It is not a criticism, it is a statement of fact from the correspondence.
MR HAYES: Your Honour, taken at its highest on the plaintiffs’ view, yes. But from the fourth and fifth defendants’ position, Your Honour, over the course of a year there has been the critical documents’ phase of which – critical documents is not discovery.
HIS HONOUR: Yes, well, it is , it is discovery of critical documents, but it’s not conventionally discovery.
MR HAYES: Precisely, Your Honour.
HIS HONOUR: Yes, and I do recall your client made a big effort at the front end to disclose critical documents.
MR HAYES: Precisely. And they have continued to do so, Your Honour, because their obligation as to discovery is a continuing one...[41]
[41]T 21.16-T 22.18 (10 December 2015).
It is apparent from this extract from the transcript that counsel for the fourth and fifth defendants was at pains to persuade the Court that a considerable amount of material had already been provided in meeting the obligation to disclose critical documents pursuant to s 26 of the Civil Procedure Act 2010. The statement made on 10 December 2015 to the effect that the fourth and fifth defendants had made a ‘big effort at the front end’ relates back to a directions hearing on 6 February 2015, during which it emerged that the fourth and fifth defendants had provided a seven-page list which identified 51 critical documents.[42]
[42]T 25.15-18 (6 February 2015).
I am not persuaded that a fair-minded lay observer would think that the statement is an unfair characterisation.
(xi)Criticising the plaintiffs for the tone and content of correspondence despite the context of the correspondence
As this point was not elaborated upon in submissions, I do not propose to speculate upon the way the argument could be put save to note that I have re-read the correspondence.
In particular, I note an exchange of correspondence in December 2014 between the solicitors for the plaintiffs and the solicitor for the fourth and fifth defendants.[43] By letter dated 11 December 2014, the solicitor for the plaintiffs wrote to the solicitor for the fourth and fifth defendants setting out a list of purported deficiencies with respect to various items in the fourth and fifth defendants’ list of critical documents. The solicitor for the fourth and fifth defendants responded by emailed letter dated 15 December 2014 (sent at 2.49 pm) dealing with each item raised.
[43]Exhibit CJ1 to the affidavit of Clare Jordan sworn 24 November 2015.
Approximately 45 minutes later (at 3.35 pm), the solicitor for the plaintiffs responded by email as follows:
Dear Radhika,
I have known you for 15 years.
You have now achieved status as the most obstructive lawyer I’ve ever had (the misfortune to deal with).
Blind freddy could tell you that if you thought the email attaching was critical, that the attachments to it might be also.
Regards,
Jonathan Bowers-Taylor
This response was unprovoked. The letter of the fourth and fifth defendants’ solicitor had been courteous and responsive to the solicitor for the plaintiffs’ letter of 11 December 2014. I do not wish to alter anything I had to say with regard to the tone and content of some of the correspondence from the solicitor for the plaintiffs.[44]
[44]T 29.11-25 (1 May 2015).
Disposition
Whilst it has been necessary to individually address each asserted factor or matter in paragraphs [i] to [xi] above, as noted at the outset, the plaintiffs contend that an apprehension of bias arises by reason of the cumulative effect of those factors or matters not by reason of any individual factor or matter.
It is necessary to consider whether a fair-minded lay observer, present at each of the interlocutory hearings and therefore in a position to consider the factors or matters cumulatively, might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions the judge is required to decide at further interlocutory hearings or at trial.
The fair-minded lay observer (though not as informed as a litigation lawyer) has a broad knowledge of the material objective facts[45] which, in this case, include the steps taken by the respective parties, the interaction between the Court and counsel during the interlocutory hearings, the submissions and Rulings delivered.
[45]Webb v The Queen (1994) 181 CLR 41, 73 (Deane J).
I am satisfied that a fair-minded lay observer with that level of knowledge, considering the factors or matters together to ascertain their cumulative effect, would not have any concerns. The individual complaints, properly considered, lack merit. In this case, the position is not improved by considering the complaints cumulatively. The outcome is simply an accumulation of unmeritorious complaints.
In the circumstances, I am not satisfied that the cumulative effect of the factors or matters could lead a fair-minded lay observer to reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the questions I am required to decide in relation to this proceeding either at interlocutory hearings or at trial.
Accordingly, I refuse the plaintiffs’ application that I recuse myself from further managing this proceeding or hearing the trial. The summons will be dismissed.
2
6
0