Brown v Wade [No 2]
[2012] WASC 159
•4 MAY 2012
BROWN -v- WADE [No 2] [2012] WASC 159
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 159 | |
| Case No: | CIV:1967/2006 | 4 MAY 2012 | |
| Coram: | SIMMONDS J | 4/05/12 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Recusal request acceded to | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL BROWN As Executor of the Will of WILLIAM JAMES WADE KATHLEEN IVY WADE As Executor of the Will of WILLIAM JAMES WADE KATHLEEN IVY WADE |
Catchwords: | Practice and procedure Application for costs orders following decision after trial Request trial judge recuse himself on ground of reasonable apprehension of bias Issue of correctness of finding at trial raised by nonparties against whom costs orders sought |
Legislation: | Rules of the Supreme Court 1971 (WA), O 18 r 14, O 73 r 5 |
Case References: | Bahai v Rashidian [1985] 1 WLR 1337 Brown v Wade [2010] WASC 367 Clarence City Council v Howlin [2010] TASFC 2 Flinn v Flinn [1999] VSCA 134 In the Estate of Langton (1964) P163 Johnson v Johnson (2000) 201 CLR 488 Osborne v Smith (1960) 105 CLR 153 Parramatta Design and Developments Pty Ltd v Concrete Pty Ltd (2005) 144 FCR 264 Symphony Group PLC v Hodgson [1994] QB 179 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
KATHLEEN IVY WADE As Executor of the Will of WILLIAM JAMES WADE
First Defendant
KATHLEEN IVY WADE
Second Defendant
Catchwords:
Practice and procedure - Application for costs orders following decision after trial - Request trial judge recuse himself on ground of reasonable apprehension of bias - Issue of correctness of finding at trial raised by nonparties against whom costs orders sought
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Legislation:
Rules of the Supreme Court 1971 (WA), O 18 r 14, O 73 r 5
Result:
Recusal request acceded to
Category: B
Representation:
Counsel:
Plaintiff : Dr J J Hockley
First Defendant : Mr S V Forbes
Second Defendant : Mr S V Forbes
Non-parties : Mr J D Maclaurin & Mr P B Dobson
Solicitors:
Plaintiff : Dwyer Durack
First Defendant : Mr S V Forbes
Second Defendant : Mr S V Forbes
Non-parties : Hotchkin Hanly
Case(s) referred to in judgment(s):
Bahai v Rashidian [1985] 1 WLR 1337
Brown v Wade [2010] WASC 367
Clarence City Council v Howlin [2010] TASFC 2
Flinn v Flinn [1999] VSCA 134
In the Estate of Langton (1964) P163
Johnson v Johnson (2000) 201 CLR 488
Osborne v Smith (1960) 105 CLR 153
Parramatta Design and Developments Pty Ltd v Concrete Pty Ltd (2005) 144 FCR 264
Symphony Group PLC v Hodgson [1994] QB 179
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- SIMMONDS J:
(This judgment was delivered extemporaneously on 4 May 2012 and has been edited from the transcript.)
1 This is my decision on the request by persons not parties to the present proceedings - I call them 'the non-parties' and I identify them in more detail in a moment - that I recuse myself from hearing the application by the plaintiff for orders as to the costs of the present proceedings. I should indicate that there were substantial written submissions directed to me for the plaintiff and for the non-parties. The hearing of the request occupied a full one day, with extensive reference to authorities. The defendants took no part in the hearing, having concluded that they had no direct interest with respect to it.
2 I should indicate at the outset that my conclusion is, after reviewing all of the matters that I will get to, that I should indeed recuse myself. However, matters arise concerning what orders of a directions kind, if any, might follow from that conclusion, let alone any other orders that should be made.
3 I turn then to the background to the recusal request.
4 The present proceedings were for probate of a will of William James Wade (Mr Wade), dated 21 February 2006. I call that, as I do in the judgment in the case, 'the Will of 21 February 2006'. The first defendant, the widow of Mr Wade, was the executor of a later will executed by Mr Wade on 6 June 2006 - I call that, as I do in the judgment, 'the purported Will of 6 June 2006' - and, as the second defendant, was a beneficiary under both the Will of 21 February 2006 and the purported Will of 6 June 2006. However, her beneficial interest in the estate of Mr Wade was substantially greater under the later will than under the earlier one.
5 The present proceedings were brought by the plaintiff as executor of the Will of 21 February 2006. On 9 December 2010, following a trial over some 10 days on various dates between 2 November and 27 November 2009, I delivered the reasons for judgment that probate should be granted of the Will of 21 February 2006 and should not be granted in respect of the purported Will of 6 June 2006; see Brown v Wade [2010] WASC 367.
6 The non-parties are Helen Elaine Lewis (Mrs Lewis), and Raymond Phillip Lewis (Mr Lewis). Mrs Lewis is the wife of Mr Lewis. She is
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- also a daughter of Mrs Wade and stepdaughter of Mr Wade. Neither Mrs Lewis nor Mr Lewis gave evidence at trial and I accept for the purposes of these reasons that neither was in any sense a party represented at the trial.
7 It was not in contest that the Will of 21 February 2006 was, when made, a valid will, either for the purposes of the decision in Brown v Wade or for any other purpose in the present proceedings.
8 The plaintiff's case at trial was that Mr Wade did not know and approve of the contents of the purported Will of 6 June 2006 and lacked testamentary capacity at the time to execute it; even if he had such knowledge, gave such approval and had such capacity, the purported Will of 6 June 2006 should not be admitted to probate because Mrs Lewis and Mr Lewis had procured its execution by their undue influence; and further, and in any event, on 13 June 2006 Mr Wade had revoked the purported Will of 6 June 2006 and revived the Will of 21 February 2006.
9 In Brown v Wade I describe my findings on the law and evidence there reviewed on the basis of which I concluded:
(1) Mrs Wade had the onus of showing Mr Wade had testamentary capacity and she had not discharged that onus: see [318], read with [91] - [317].
(2) Mrs Wade had the onus of showing Mr Wade had knowledge and had approved the contents of the purported Will of 6 June 2006 and she had not discharged that onus: see [326], read with [321] - [325] and [327] - [328].
(3) The plaintiff had the onus of showing testamentary undue influence in respect of the purported Will of 6 June 2006 and he had discharged that onus: see [342], read with [330] - [341].
(4) The plaintiff had the onus of proving Mr Wade had capacity to revoke the purported Will of 6 June 2006; however, that burden of proof had not been discharged: see [357] and [381], read with [356] and [358] - [380].
10 The plaintiff has applied for orders as to costs against the non-parties on an indemnity basis, or in the alternative on a solicitor and client basis, or in the further alternative on the basis of certain special costs orders. The costs orders the plaintiff seeks are the ones primarily sought. However, in the alternative to all of these orders, the plaintiff's application
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- is that whoever made the decision to run the case against probate of the Will of 21 February 2006 should pay the costs of the proceedings.
11 I turn now to the recusal request. The recusal request was brought on the basis, which is common ground, that the plaintiff will found his case for the non-parties to pay costs, including on an indemnity basis, in substantial part, if not in whole, on the contention that the non-parties caused the present proceedings to be brought by procuring the purported Will of 6 June 2006 by the exercise of undue influence. To make out that part of his case the plaintiff will seek to rely, at least in significant part, on findings in Brown v Wade and evidence relied on there as the basis for those findings. The plaintiff will also rely on other evidence, including other evidence which he asserts has the effect that such findings are appropriate. Reliance on the findings in Brown v Wade will be in the form that the non-parties are bound by those findings.
12 The non-parties for their part will contend that the plaintiff cannot so rely on those findings and that they did not procure the execution of the purported Will of 6 June 2006 by the exercise of undue influence. The basis for recusal is apprehended, not actual, bias. The non-parties put principal reliance on the authority Clarence City Council v Howlin [2010] TASFC 2 and that authority's emphasis on apprehended bias as a basis for recusal, which the Full Court determined ought to have been granted by the trial judge in relation to the costs application against the non-party in that case.
13 There appears to be no contest as to the principles for recusal on apprehended bias, generally or in the particular context of costs applications. See Clarence City Council [78] - [80] and [107] - [109]:
Where, in the absence of any suggestion of actual bias, a question arises as to the impartiality of a judge, as it did here, the governing principle is that, subject to qualifications relating to waiver or necessity, which did not arise here, 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 questions the judge is required to decide. It is convenient to refer to that principle as the apprehension of bias principle. Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345.
The question whether a judge who is confident of his or her own ability to determine the case fairly and impartially on the evidence, should refrain from sitting because of a suggestion that the view which he or she has expressed in a judgment in some previous case may result in an appearance of pre-judgment can be a difficult one involving matters of degree, and particular circumstances may strike different minds in
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- different ways. Livesey v New South Wales Bar Assn (1983) 151 CLR 288 at 294.
Nevertheless, where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair minded observer might entertain a reasonable apprehension of bias by reason of pre-judgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case, or about the credit of a witness whose evidence is of significance on such a question of fact. Livesey at 300.
...
I refer first to a number of principles that apply. The governing principle is that when considering the question of apprehended bias, the learned judge should have disqualified himself if a fair minded lay observer might reasonably have apprehended that his Honour might not bring an impartial mind to the resolution of the questions he was required to decide. R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 262 and 263; Ebner v Official Trustee in Bankruptcy (above) at 344-345; Johnson v Johnson [(2000) 201 CLR 488] at para [11]; Livesey v New South Wales Bar Assn (above) at 293–294.
It was made clear in Johnson v Johnson at para [12] that the test is different to the one applied in the United Kingdom. It gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. If fair minded people reasonably apprehend or suspect that the tribunal has pre-judged the case, they cannot have confidence in the decision. The test is objective and is founded on the need for public confidence in the judiciary.
Two things in particular need to be remembered. The observer is taken to be reasonable, and the person being observed is a professional judge of whom training, tradition and oath require the discarding of the irrelevant, the immaterial, and the prejudicial. While a fictional observer is not to be assumed to have a detailed knowledge of the law, or of the character or ability of the particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. Johnson v Johnson at paras [12] and [13].
14 An application for payment of costs should 'normally' or 'ordinarily' be determined by the trial judge: see Symphony Group PLC v Hodgson [1994] QB 179, 193 (Balcombe LJ; Staughton & Waite LJJ agreeing), using the first adverb, and Clarence City Council [114], using the second adverb.
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15 Further, I should note the following from Flinn v Flinn [1999] VSCA 134 [6] - [7] (Brooking, Charles & Batt JJA):
The statement of principle by Balcombe LJ [in Symphony Group PLC v Hodgson (193)] was also endorsed by Batt J in C.E. Heath Underwriting & Insurance (Aust) Pty Ltd v Daraway Constructions Pty Ltd (unreported, 1 September 1995). The decisions cited by Balcombe LJ on applications to have costs visited on a solicitor are Brendon v Spiro and Bahai v Rashidian. In the former, Scott LJ said ([1938] 1 K.B. 176 at 192):
'[T]he case must go back to [the trial judge] to be dealt with in such a manner, and according to such procedure as he thinks proper, providing, of course, that the two solicitors know what the case against them is, and have a sufficient opportunity of meeting it. Whether the learned judge should order affidavits, whether he should direct oral evidence, how far he can properly refresh his mind from his notes of the hearing of the case, and dispense with additional or new evidence to prove facts which were already established in the course of the proceedings, will all be matters for him to consider.'
In the second of those cases, Bahai v Rashidian, Parker LJ, having cited this passage from Brendon v Spiro continued ([1985] 1 WLR 1337 at 1344):
'There is, here, recognition of the fact that, although it may be possible to dispense with new evidence in respect of matters established at the trial, it may also be necessary to have such matters dealt with afresh. If the issue of Mr Harris's liability is tried by the trial judge, he will certainly have to consider whether, in view of the gravity of the charges and Mr Harris's inability to cross-examine, some of the evidence will, in justice to Mr Harris, have to be given afresh. This, and no doubt many other matters, will have to be considered. Provided that (a) the procedure adopted by the judge gives to Mr Harris a full and fair opportunity to meet the charges and (b) to someone with knowledge of the strictures previously made by the judge a hearing by that judge would not appear to be marred by bias, the trial judge must be the right person to hear the application.'
In the same case Balcombe LJ, at 1345, observed:
'The exercise of this summary compensatory jurisdiction is now regulated by the provision of RSC, O62, r8. R8(2) requires the solicitor to be given a reasonable opportunity to appear before the court and show cause why the order should not be made, but otherwise the procedure to be followed is left to the judge who hears the application: see Brendon v Spiro [1938] 1 KB 176. In particular he will have to consider whether he should direct oral
- evidence and how far he can properly refresh his mind from his notes of the hearing of the case, and dispense with additional or new evidence to prove facts which were already established in the course of the proceedings: per Scott LJ in Brendon v Spiro [1938] 1 KB 176, 192.'
- In relation to the last saving in the passage in Flinn v Flinn [7] from Bahai v Rashidian [1985] 1 WLR 1337, 1344 as to 'bias', in this country the saving is not limited to actual bias but extends to apprehended bias: Clarence City Council [114], read with Johnson v Johnson (2000) 201 CLR 488 [11] - [13] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).
16 I turn now to apply those principles. As I have indicated, the non-parties rely heavily on Clarence City Council [114], where the court said this:
Notwithstanding the undoubted merit in the respondents' submission that an application for costs against a non-party should ordinarily be decided by the trial judge, I find this to be an exceptional case because of the extent to which his Honour was to be faced with having to judge the correctness of so much of what he had judged before. The hearing was not to be a mere adjunct to the trial of the action. To a substantial extent a rehearing of issues was required, and a fair minded lay observer would have had sound bases for a reasonable apprehension that the learned judge might not bring an impartial mind to the resolution of the questions he was required to decide. The issues of fact and value judgments together with issues of law that had to be reconsidered were considerable, in substance and number, and required the attention of a judicial officer who was unfettered by the findings and determinations he had made before.
17 In my view, that paragraph does indeed offer substantial support for a decision that I should recuse myself in this case. However, the plaintiff's response was, as I understood his counsel, that Clarence City Council is distinguishable on three bases.
18 One basis was that unlike the non-party in Clarence City Council, the non-parties here were bound by the findings in Brown v Wade. This meant there was no question of rehearing of the issues in Brown v Wade that could result in different findings.
19 Second, there was no question in the costs application in this case of the judicial officer concerned having to judge the correctness of so much of what had been judged before as to engage, if that judicial officer was the trial judge, the concern as to apprehended bias on which the non-parties rely.
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20 The third was that, unlike in Clarence City Council, in the present case there were no communications by any party with the non-parties which indicated that they should not participate in the case. To the contrary, the solicitors for Mrs Wade had served a citation (see Rules of Supreme Court 1971 (WA) O 73 r 5), on Mrs Lewis in connection with the present proceedings.
21 The plaintiff's solicitors had written to the solicitors for the non-parties before trial stating that costs would be claimed from the non-parties. I insert at this point that the letter relied upon in the written submissions for the plaintiff appears to notify the solicitors of a possible claim only against Mr Lewis: see Annexure A to the statement of agreed facts filed 7 October 2011.
22 Mr Lewis attended both mediations in the present proceedings and, finally, the non-parties were present at trial for some, if not all, of its days, either together or individually.
23 I turn to consider these responses. First, were the non-parties bound by the findings at trial?
24 The plaintiff says the non-parties are bound by the findings at trial on the basis as to one of them - Mrs Lewis - that she was the subject of a citation under O 73 r 5 or, in any event, as to both of them that they were cognisant of the proceedings (the probate basis); and as to both, on the basis that their connection to the litigation was so close as not to make it unjust that they should be so bound (the general basis).
25 On the probate basis, I would refer to Osborne v Smith (1960) 105 CLR 153, 158 - 159 (Kitto J; Menzies & Windeyer JJ agreeing), and In the Estate of Langton (1964) P163, 175 (Danckwerts LJ), 178 - 179 (Diplock LJ).
26 In Osborne v Smith (158 - 159) the following appears:
It was both proper and necessary in the second suit to treat as binding upon the appellant the findings as to knowledge and approval which had been made in the first suit. She, it is true, was not a party to the first suit; but there is a well-established principle of probate practice, which grew up in the ecclesiastical courts, that any person having an interest may have himself made a party by intervening, and that if he, knowing what was passing, does not intervene, but is 'content to stand by and let his battle be fought by somebody else in the same interest', he is bound by the result, and is not to be allowed to re-open the case: Wytcherley v. Andrews
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- [(1871) LR 2 P & D 327]; Nana Ofori Atta II v. Nana Abu Bonsra II [(1958) AC 95].
27 In Langton (175) the following appears:
A probate action is, in a sense, an action in rem, and it appears to be well settled by decisions which, if not binding on this court, have stood for some time and, in my view, were properly decided, that any person who had cognisance of the probate proceedings, and had an interest which would have entitled him to intervene, is bound by the decision in the Probate Court, and cannot start a fresh action. It matters not that he now wishes to claim in a different capacity.
28 In Langton (178 - 179) the following appears:
In exercising its jurisdiction in probate matters the High Court is acting as successor to the Prerogative Court of Canterbury, and, in so far as the matter is not regulated by Act of Parliament or Rules of Court, it applies the law and practice of that court. A judgment in a probate action pronouncing in favour of a will and granting probate thereof in solemn form is not comparable with a common law judgment in personam. It transfers, nunc pro tune, to the personal representatives the legal property in the estate of the deceased and, so long as the grant is not revoked, it creates enforceable rights in beneficiaries under the will pronounced for and admitted to probate irrespective of whether or not the beneficiaries were parties to the action. Because such a judgment can affect the rights of persons who are not parties to the action, it was the practice of the Prerogative Court to permit any person claiming an interest in the estate of the deceased, whose rights could be affected by the grant applied for, to intervene in the action at any stage. This right of intervention is today preserved by R.S.C., Ord. 76, r. 4. As a corollary to this right of intervention, the Prerogative Court applied the rule that a person interested in the estate of the deceased who was in fact cognisant of a suit with respect to the validity of a will by which his interest was to his knowledge affected and who stood by and took no part in the suit was nevertheless bound by the decree pronouncing in favour of the will. This was so whether or not a citation had been actually served upon him: Newell v. Weeks [2 Phillim 224]; Ratcliffe v. Barnes [2 Sw & Tr 486]. This rule differs from the common law rule of estoppel per rem judicatam. It is peculiar to the probate jurisdiction of the court and is a rule of substantive law which, in my view, was not affected by the transfer of the jurisdiction of the Prerogative Court first to the Court of Appeal in 1857 and later to the High Court in 1873.
29 On the general basis I note Symphony Group PLC v Hodgson (193) (Balcombe LJ):
The procedure for the determination of costs is a summary procedure, not necessarily subject to all the rules that would apply in an action. Thus,
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- subject to any relevant statutory exceptions, judicial findings are inadmissible as evidence of the facts upon which they were based in proceedings between one of the parties to the original proceedings and a stranger: see Hollington v FHewthorn & Co Ltd [1943] K.B. 587; Cross on Evidence, 7th ed (1990), pp 100-101. Yet in the summary procedure for the determination of the liability of a solicitor to pay the costs of an action to which he was not a party, the judge's findings of fact may be admissible: see Brendon v Spiro [1938] 1 K.B. 176, 192, cited with approval by this court in Bahai v. Rashidian [1985] 1 W.L.R. 1337 1343D, 1345H. This departure from basic principles can only be justified if the connection of the non-party with the original proceedings was so close that he will not suffer any injustice by allowing this exception to the general rule.
- See also Symphony Group PLC v Hodgson (196) (Staughton LJ), (197) (Waite LJ).
30 On the plaintiff's response, as the non-parties are bound, no issue as to the correctness of the findings in the trial judgment arises which might give rise to a concern of apprehended bias.
31 I note at this point that both the plaintiff and the non-parties sought from me determinations, both as to whether or not the non-parties were bound by the findings in Brown v Wade as well as to whether I should recuse myself or not.
32 It seems to me that, at least if I can determine whether the non-parties are bound without regard to the undue influence point, it would be appropriate and indeed, on the plaintiff's response, necessary to do so.
33 Whether if the non-parties are bound, recusal could still be argued for is not altogether clear on the non-parties' submissions; but it was not in contest that if the non-parties are not bound, the scope for the recusal argument is much more substantial.
34 I consider that it is not shown to me that the non-parties are bound by the findings in Brown v Wade absent the question of the undue influence point.
35 The strongest case, it seems to me, that they or one of them is bound is in respect of Mrs Lewis as a beneficiary under the Will of 21 February 2006 but not under the purported Will of 6 June 2006.
36 I note that in respect of the purported Will of 6 June 2006 that that position of Mrs Lewis is as a result of Mrs Wade surviving her husband:
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- see Brown v Wade [73], [79] - [80]; but see also [324] on evidence of an interest of the non-parties dependent on Mrs Wade taking under the purported Will of 6 June 2006.
37 It seems to me that Mrs Lewis is bound by the judgment in Brown v Wade, in any event; see Rules of the Supreme Court O 18 r 14. But it seems to me that this only relates to judgments in the context of proceedings to challenge the Will of 21 February 2006, not the judgment and findings essential for that judgment outside such a context. In any event, none of this has application to Mr Lewis who was not a beneficiary under either will.
38 It may well be that the probate basis allows for a party to be bound or a person to be bound in the same way that issue estoppel might apply: see Osborne v Smith (158). However, I consider, as I have indicated, this is only in the context of probate proceedings or other proceedings to challenge the validity of the Will of 21 February 2006.
39 I acknowledge there is no authority directly on point. However, I note that the probate basis appears to derive from the effect of a judgment in probate that, unless revoked, the grant of probate creates enforceable rights in the beneficiaries under the will, irrespective of whether the beneficiaries are parties to the action: see Langton (179) (Diplock LJ).
40 This does not compel a conclusion that the beneficiaries not parties to the action are bound by findings in the action in other proceedings except as I have indicated, nor in my view does it bind such beneficiaries even in costs applications in the probate action concerned. That is because the determination of such an application has no bearing, it seems to me, on the enforceable rights of the beneficiaries under the will admitted to probate other than in an economic sense.
41 There is of course no limitation of the general basis by type of proceeding; indeed it may ground a determination that findings from the trial bind in costs determinations: see Symphony Group PLC v Hodgson (193). However, it was common ground that such a determination involved the exercise of a discretion and I consider this is clearly established by authority: see Flinn v Flinn [7].
42 The principal, if not only (see Symphony Group PLC v Hodgson (196) (Staughton LJ)), factor relevant to the exercise of discretion is whether or not the non-party concerns were so closely connected to the proceedings that it would not be unjust for the evidence in those proceedings to which they were not a party to be admissible against them.
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43 As the authorities I have already cited indicate, finding such admissibility would represent an exception to the general principle that, subject to any relevant statutory exception, judicial findings are inadmissible as evidence of facts upon which they were based in proceedings between one of the parties to the original proceedings and a stranger.
44 However, for the determination in question in this case the plaintiff acknowledged that he relied, at least in significant part, if not entirely, or as a necessary as opposed to a sufficient condition, on the contention that the non-parties caused the litigation by procuring the purported Will of 6 June 2006 by undue influence by them. The non-parties' position, to repeat, was of course that they contested that they had so procured that will.
45 This returns me to the basis for the non-parties' request that I should recuse myself. I do not need to consider the non-parties' further point that such causation here is not a connection to proceedings of the relevant kind. That kind, they said, went to the management of the proceedings themselves. Only if I do not recuse myself should I determine such a matter as an aspect of whether to exercise the discretion.
46 I turn then to the question of whether I would be involved in determining so much of the correctness of findings in Brown v Wade so as to engage the apprehended bias concern. I accept for the purpose of the analysis that follows that there is no question here of challenge to the correctness of the ultimate finding that the Will of 21 February 2006 should be admitted to probate; contrast the Clarence City Council case.
47 Undue influence was indeed not the principal basis, I accept, for the ultimate finding, as the number of paragraphs involved cited above would indicate. However, there is no doubting that the undue influence point was an alternative basis for the ultimate finding. Further, the matter of arriving at a determination that the purported Will of 6 June 2006 was procured by the undue influence of the non-parties is a matter of considerable, indeed central significance in the plaintiff's application for the costs orders, including on an indemnity basis, that it seeks against the non-parties: cf Flinn v Flinn [11] in both respects. This, it seems to me, is sufficient to meet the plaintiff's response.
48 I turn then to the question of whether Clarence City Council is distinguishable on the basis that the non-parties were not discouraged from participating in the proceedings. I begin by noting that this matter
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- was not a matter emphasised in relation to the recusal decision in Clarence City Council [114], itself; nor is it evident why this matter would relieve against any concern on apprehended bias grounds other than as evidence of waiver of any challenge to the ultimate finding in Brown v Wade.
49 It does not seem to me that waiver of challenge to the findings for the purpose of a costs application is established by the matters relied upon in the plaintiff's response. At most, it seems to me those matters go to a challenge to the correctness of the ultimate finding that the Will of 21 February 2006 was the will of Mr Wade that should be admitted to probate. I note the reference to the right to intervene, see Langton (179), as justification for the bindingness of the findings on the probate basis. I do not consider that the matter of not discouraging the non-parties from participating or their awareness of the proceedings would make the findings binding on them beyond the scope of the probate basis.
50 It may, however, be relevant to exercising the discretion on the general basis: see Symphony Group PLC v Hodgson (196). I do not need to go further into that matter.
51 This takes me to the question of whether I should recuse myself. In my view, as I have already indicated, there is a substantial basis from Clarence City Council for a view that a concern as to apprehended bias would be engaged by me determining the costs application of the plaintiff. That basis, to repeat, is the significance to both the plaintiff and the non-parties in the plaintiff's costs application for orders against the non-parties, including on an indemnity basis, of a contested matter on which I had made in Brown v Wade a clear finding upon which, as an alternative, I had rested the ultimate finding made in that case.
52 However, the plaintiff put to me that in view of the delay in putting a recusal request to me, I should not recuse myself. It is common ground that delay in putting a request to recuse may cause the court to dismiss the request. The matter is explained in Parramatta Design and Developments Pty Ltd v Concrete Pty Ltd (2005) 144 FCR 264 [38] (French J), as follows:
For the above reasons it was inappropriate for the primary judge to treat the decision taken by him on 8 April 2004 (ie on the third day of what became an eight-day hearing) as foreclosing, subject to appeal, the issue of whether he should disqualify himself from continuing with the hearing on the ground of apprehended bias. A party who invites a judge to disqualify himself or herself should, of course, alert the judge at that time to the
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- entirety of the material on which the party relies. However, if additional or fresh material comes to the party’s attention which, either alone or seen together with material earlier identified, gives rise to a serious question as to whether the judge should withdraw, objection must be taken promptly to the judge continuing to sit. Failure to make a timely objection based on that additional or fresh material may result in the party being considered to have waived any objection based upon that material (Vakauta v Kelly (1989) 167 CLR 568 per Brennan, Deane and Gaudron JJ at 572; Re Alley; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1985) 60 ALJR 181).
53 However, I note the basis for dismissal in waiver. The delay pointed to by the plaintiff here was the putting of the recusal request to the court for the first time on or about 13 April 2012. The plaintiff referred in that context to the earliest time at which he informed the non-parties of the possibility of reliance on the findings in Brown v Wade as to undue influence and the relevance of such findings, 7 October 2011: see the letter of that date, Annexure PBD1 to the affidavit of Phillip Bruce Dobson sworn 30 March 2012. However, I note the ensuing correspondence between the solicitors for the plaintiff and the solicitors for the non-parties, in which the non-parties sought clarification of what the plaintiff would be relying upon as the basis for his cost application against them; see the Dobson affidavit, Annexures PBD3, PBD2, PBD4, PBD5, PBD6 and PBD7.
54 In light of that correspondence, I am unable to conclude the non-parties should be seen as having waived making the request for recusal by not making it until the date the plaintiff points to. Indeed, I note that the plaintiff did not finally indicate what evidence he would be relying upon for what purpose until his written submissions of 24 April 2012. Thus, I am unable to conclude that the non-parties are precluded by the time they took to make the request for recusal from making that request.
55 I consider, in sum, that in view of the significance to both the plaintiff and the non-parties in a costs application of the plaintiff of the contested matters, which is one on which I made the clear finding referred to, that this is a case of an exceptional character, in which I should recuse myself from deciding that costs application. This is notwithstanding the normal or ordinary position, which is a matter, it seems to me, of the effective deployment of judicial resources, that the trial judge should determine the application for costs arising out of that judgment.
56 I will hear now from the plaintiff, the non-parties and, to the extent they consider it appropriate, the solicitors for the defendants as to what
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- orders for directions I should make, if any, to facilitate the early hearing of the plaintiff's costs application by another judicial officer, in addition to any other orders I should make as a consequence of these reasons.
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