DJ Singh v DH Singh (No 2)

[2018] NSWCA 31

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	DJ Singh v DH Singh and Others (No 2) [2018] NSWCA 31
Hearing dates:	1 November 2017
Decision date:	01 March 2018
Before:	Gleeson JA
Decision:	Application for recusal declined
Catchwords:	BIAS – apprehended bias – application for disqualification of judge – application based on asserted misstatement of facts in earlier interlocutory judgment
Cases Cited:	Barakat v Goritsas (No 2) [2012] NSWCA 36 British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 62 DJ Singh v DH Singh and Others [2017] NSWCA 234 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2005] HCA 63 Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39
Category:	Principal judgment
Parties:	David John Singh (Applicant) Darran Harsewan Singh (First Respondent) Paul William Campbell (Second Respondent) Sharon Leigh Singh (Third Respondent) Gurpal Kaur Singh (Fourth Respondent)
Representation:	Counsel: Mr GJ Smith (Respondents)   Solicitors: David Singh (Applicant in person) Kym Chapman Law (Respondents)
File Number(s):	2015/3194322017/156218
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2015] NSWSC 1457 (2 October 2015) [2017] NSWSC 269 (20 March 2015) Date of Decision: 20 October 2015 20 March 2017 Before: Black J File Number(s): 2013/141437 2013/338156 2013/350277 2013/338196

Judgment

1. GLEESON JA: Mr David Singh is the appellant in two appeals from a judgment and orders of the Equity Division in four proceedings that were heard together concerning the estate of the late Douglas John Singh (the deceased).

2. The appeals were heard by this Court on 1 November 2017. The appellant was self-represented.

3. At the conclusion of his oral argument, the appellant sought a short adjournment to consider whether there were any further matters he wished to put orally. The Court adjourned at 11:50 am for ten minutes and the hearing resumed at 12 noon.

4. Upon resumption of the hearing, the appellant made an oral application that I recuse myself on the ground of apprehended bias, having regard to statements made by me in an interlocutory judgment dealing with a stay application. The claim was thus one of apprehended prejudgment. I declined to recuse myself. These are my reasons for declining that application.

5. The first appeal concerned orders made by the primary judge (Black J) on 2 October 2015 granting probate in solemn form in respect of the will made by the deceased on 17 August 2006 (the 2006 will), and rejecting the cross-claims made by the appellant, and by the deceased’s wife, Mrs Gurpal Kaur Singh.

6. On 15 September 2017 I delivered reasons for judgment, sitting as a single judge of appeal in the referrals list, rejecting the appellant’s application for a stay of the orders made by Black J on 2 October 2015 and other relief including against the executors of the 2006 will: DJ Singh v DH Singh and Others [2017] NSWCA 234 (the stay judgment).

7. The matters relied upon, as the basis for the recusal application, were that I had made errors in the stay judgment and accordingly, that there was a real possibility that I would not bring an impartial mind to the resolution of the present appeals.

8. The first matter identified was the description of Mrs Singh in the stay judgment (at [14]) as the “then wife” of the deceased, when referring to an earlier will dated 30 April 2004 (the 2004 will), and (at [9]-[10]) as the “former wife” of the deceased. The second matter identified was the reference in the stay judgment (at [13]) to the appellant’s claims for relief in the amended notice of appeal filed 18 August 2016, in the following terms:

The applicant filed an amended notice of appeal on 18 August 2016, which seeks to set aside the grant of probate in respect of the will dated 17 August 2006 (the 2006 will) and in its place seeks a grant of probate of an earlier will dated 30 April 2004 (the 2004 will), or alternatively, that the estate of the deceased be distributed on intestacy.

9. As to the first matter, the appellant emphasised that the deceased and Mrs Singh were never legally divorced, although they apparently separated and were parties to a financial property settlement approved by the Family Court of Australia on 24 March 2009. As to the second matter the appellant emphasised that his claims for relief in the amended notice of appeal (par 12) included an order that probate of the 2004 will be “invited”, rather than “granted”.

10. The test for recusal is whether a fair-minded lay person, with knowledge of the matters relied upon by the applicant, might reasonably consider that I might not carry out my judicial functions as a member of the Court with an impartial and unprejudiced mind. [1]

    1. Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]-[13]; Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]; Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31].

11. I am satisfied that such a person would not reach that conclusion based on the complaints made by the appellant concerning the reasons for my decision in the stay judgment. In reaching this view, I take into account the following principles.

12. The test for apprehension of bias is objective. It does not require an assessment of the state of mind of the judge in question, as is necessary on an inquiry about actual bias. [2]

    2. Michael Wilson & Partners at [33].

13. The application of the apprehension of bias principle involves two steps. The first is to identify what it is said might lead the judge to decide a case other than on its legal and factual merits. The second is to articulate the logical connection between the circumstances identified in that matter and the apprehension that the case might not be decided on its merits. [3]

    3. Ebner v Official Trustee in Bankruptcy at [8]; Michael Wilson & Partners at [32]-[33]; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 at [139] (Heydon, Kiefel and Bell JJ).

14. Accordingly, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. The question is not whether the judge had in fact prejudged an issue. [4]

    4. Michael Wilson & Partners at [67].

15. Applying those principles to the present case, the following observations can be made. First, it was not in issue on the hearing of the appeals that Mrs Singh and the accused were never legally divorced. Accordingly, the suggestion that I had misstated the facts in the stay judgment was overtaken by what was common ground on the appeals.

16. Second, the reference in the stay judgment to the terms of the relief sought in the amended notice of appeal could not reasonably be taken as suggesting that I had misunderstood the relief sought in the amended notice of appeal.

17. Third, as this Court said in Barakat v Goritsas (No 2) [2012] NSWCA 36[5] , what is to be assessed by the fair-minded lay observer is the capability of the judge to determine the matter according to law, on the basis of the evidence admitted at the relevant hearing and after hearing submissions from the parties, rather than the actual state of mind of the judge, either when the impugned conduct occurs or at a later time when the trial is listed. Here, when invited to do so, the appellant was unable to identify any logical connection between the asserted factual errors in the stay judgment and the issues that needed to be determined on the appeals, such that a fair-minded lay person might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of a question for decision on the appeals.

    5. Barakat v Goritas (No 2) [2012] NSWCA 36 at [8]; referring to Michael Wilson & Partners at [33].

18. Fourth, I am mindful that it is my duty to determine matters which come before me as a member of this Court and also that it is my duty not to withdraw unless there are reasons which require me to do so. As Mason J said in Re JRL; Ex parte CJL. [6]

Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

6. (1986) 161 CLR 342 at 352; [1986] HCA 39.

19. For the reasons given above, I declined the recusal application.

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Endnotes

Decision last updated: 01 March 2018