D B Mahaffy and Associates v Mahaffy

[2015] NSWSC 1223

Supreme Court

New South Wales

Medium Neutral Citation:	D B Mahaffy & Associates v Mahaffy [2015] NSWSC 1223
Hearing dates:	25 August 2015
Date of orders:	25 August 2015
Decision date:	25 August 2015
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Application not granted.
Catchwords:	PROCEDURE – contempt of court – disqualification application – apprehension of bias – application not granted
Cases Cited:	Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 R v Simpson; Ex Parte Morrison [1984] HCA 25; (1984) 154 CLR 101
Category:	Procedural and other rulings
Parties:	D B Mahaffy & Associates (Plaintiff) Jeffrey Mahaffy (Defendant)
Representation:	Mr D Mahaffy, unrepresented (Plaintiff) Mr J Mahaffy, unrepresented (Defendant)
File Number(s):	2010/119143
Publication restriction:	None

EX TEMPORE Judgment

1. I will treat what Mr David Mahaffy has just said as amounting to an application that I disqualify myself on the basis of bias. The circumstances in which Mr David Mahaffy’s disqualification application was made are these.

2. The matter was listed today for further directions, the sentencing hearing earlier before the Court on 13 and 14 August 2015 having been adjourned in circumstances where neither party was ready to proceed.

3. This morning Mr Jeffrey Mahaffy confirmed that he had made an error when serving his outline of submissions, which had come to his attention with the result that today, he had served by email on Mr David Mahaffy the final version of his outline. From what Mr David Mahaffy said this morning, it was apparent he had received that document.

4. In those circumstances, Mr David Mahaffy sought an opportunity to file his outline by 9 September. That was not opposed and accordingly, I directed that the time for the filing of his outline be extended to 9 September 2015.

5. When I turned to deal with the question of the listing of the matter for hearing as to sentence, Mr David Mahaffy became agitated. In correspondence which he sent to my Associate earlier in the week, he had foreshadowed that he would wish to file a notice of motion in the proceedings alleging contempt on the part of Mr Jeffrey Mahaffy. He referred to that intention this morning and foreshadowed an application that that motion be heard at the same time as the matter that came before the Court for the hearing as to his sentence.

6. I attempted to indicate to Mr David Mahaffy that if, and when, he made such an application to the Court, it would be dealt with, but it was not possible to deal with the foreshadowed application, at this stage. Mr David Mahaffy was not prepared to listen. He interrupted and spoke over me, and then indicated that he was not prepared any longer to participate in the directions hearing, despite having made this application that I disqualify myself on the basis of bias. He then terminated his telephone participation in the hearing.

7. I am satisfied in the circumstances which have arisen that the application cannot be acceded to. The circumstances are not such that the relevant tests, which I will refer to in the reasons which I will publish in due course, could be satisfied in the circumstances which have arisen in the matter.

8. Those tests are that for a judge to accede to an application that rests on bias, the moving party has to establish that there exists a reasonable apprehension that the judge might not bring an impartial or unprejudiced mind to the resolution of the matters which arise for determination in the proceedings.

9. Such an application requires consideration of what “a fair mind lay observer might reasonably apprehend” (see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] - [7]). In Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, it was explained at 87 that in assessing what the hypothetical reaction of a fair-minded observer would be, knowledge of the actual circumstances of the case must be attributed to that person.

10. In Ebner it was explained at [19] - [20] that:

“[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.”

11. In R v Simpson; Ex Parte Morrison [1984] HCA 25; (1984) 154 CLR 101, it was explained at 104:

“It is quite clear that when there is a suggestion of bias, the court should not proceed either if there is actual bias or if there is a reasonable suspicion of bias. That is not to say, however, that the court must desist from hearing proceedings when somebody wrongly and irrationally suspects bias.”

12. What has to be attributed to the fair-minded observer thus includes the serious nature of the proceedings brought against Mr David Mahaffy, the course which the proceedings have taken, how he has conducted himself in the proceedings, how he has been dealt with during the course of the hearing and how applications he has made have been determined.

13. These are matters which I attempted to inform Mr David Mahaffy of without success. My approach this morning could not, I am satisfied, have given rise to a reasonable apprehension of bias in the mind of any reasonable bystander, so far as Mr David Mahaffy is concerned.

14. In those circumstances, the application cannot be acceded to and what I propose to do is list the matter for hearing on 10 and 11 December 2015. Given the difficulty with which these proceedings go forward whenever Mr David Mahaffy participates, I am not confident that the matter, if he appears, can be dealt with in a day, so, it is necessary that I list it for two days.

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Decision last updated: 27 August 2015