Donaldson v Nolan [No 2]
[2015] WASC 158
•5 MAY 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: DONALDSON -v- NOLAN [No 2] [2015] WASC 158
CORAM: BEECH J
HEARD: ON THE PAPERS
DELIVERED : 5 MAY 2015
FILE NO/S: CIV 2867 of 2013
BETWEEN: JOHN RAWSON DONALDSON
Plaintiff
AND
JEFFREY RAYMOND NOLAN as Executor of the Estate of JOHN WAYNE DONALDSON
First DefendantJEMMA LOUISE DONALDSON
Second DefendantTHOMAS DEREK DONALDSON
Third DefendantROSANNE DONALDSON
Fourth DefendantGREGORY BRENT DONALDSON
Fifth DefendantVANESSA DONALDSON
Sixth DefendantJACQUELINE DONALDSON
Seventh DefendantVALERIE DOREEN DONALDSON
Eighth DefendantMAITLAND GERALD DONALDSON
Ninth DefendantDAVID TAYLOR
Tenth DefendantSILVER CHAIN NURSING ASSOCIATION INC
Eleventh DefendantROBIN BRAZIL DONALDSON
Twelfth DefendantJENNIFER LOUISE BROWNING
Thirteenth Defendant
FILE NO/S :CIV 2865 of 2013
BETWEEN :JOHN RAWSON DONALDSON
Plaintiff
AND
JEFFREY RAYMOND NOLAN as Executor of the Estate of JOHN WAYNE DONALDSON
First DefendantJEMMA LOUISE DONALDSON
Second DefendantTHOMAS DEREK DONALDSON
Third DefendantROSANNE DONALDSON
Fourth DefendantGREGORY BRENT DONALDSON
Fifth DefendantVANESSA DONALDSON
Sixth DefendantJACQUELINE DONALDSON
Seventh DefendantVALERIE DOREEN ROBERTS
Eighth DefendantMAITLAND GERALD DONALDSON
Ninth DefendantDAVID TAYLOR
Tenth DefendantSILVER CHAIN NURSING ASSOCIATION INC
Eleventh DefendantROBIN BRAZIL DONALDSON
Twelfth DefendantJENNIFER LOUISE BROWNING
Thirteenth Defendant
FILE NO/S :CIV 1461 of 2015
BETWEEN :JOHN RAWSON DONALDSON
Plaintiff
AND
SUFFOLK INVESTMENTS PTY LTD
Defendant
Catchwords:
Courts and judges - Recusal application - Whether reasonable apprehension of bias - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
CIV 2867 of 2013
Counsel:
Plaintiff: No appearance
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Tenth Defendant : No appearance
Eleventh Defendant : No appearance
Twelfth Defendant : No appearance
Thirteenth Defendant : No appearance
Solicitors:
Plaintiff: In person
First Defendant : Taylor Smart Lawyers & Notaries
Second Defendant : Kershaw Legal
Third Defendant : Kershaw Legal
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Tenth Defendant : No appearance
Eleventh Defendant : No appearance
Twelfth Defendant : Kershaw Legal
Thirteenth Defendant : Kershaw Legal
CIV 2865 of 2013
Counsel:
Plaintiff: No appearance
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Tenth Defendant : No appearance
Eleventh Defendant : No appearance
Twelfth Defendant : No appearance
Thirteenth Defendant : No appearance
Solicitors:
Plaintiff: In person
First Defendant : Kershaw Legal
Second Defendant : Kershaw Legal
Third Defendant : Kershaw Legal
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Tenth Defendant : No appearance
Eleventh Defendant : No appearance
Twelfth Defendant : Kershaw Legal
Thirteenth Defendant : Kershaw Legal
CIV 1461 of 2015
Counsel:
Plaintiff: No appearance
Defendant: No appearance
Solicitors:
Plaintiff: In person
Defendant: Tottle Partners
Case(s) referred to in judgment(s):
British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283
De Alwis v The State of Western Australia [No 2] [2015] WASCA 42
De Alwis v The State of Western Australia [No 4] [2015] WASCA 43
Donaldson v Nolan [2015] WASC 47
Ebner v Official Trustee in Bankruptcy [2000] HCA 69; (2000) 205 CLR 337
Frigger v Kitay [No 8] [2015] WASC 104
Galea v Galea (1990) 19 NSWLR 263
Michael v The State of Western Australia [2007] WASCA 100
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
MTI v SUL [No 2] [2012] WASCA 87
Re JRL Ex parte; CJL [1986] HCA 39; (1986) 161 CLR 342
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
BEECH J:
Introduction
On 30 April 2015, these three proceedings were before me for directions.
On 1 May 2015 the plaintiff in each action, Mr Donaldson, sent an email to my associate demanding that I recuse myself on grounds of 'a perception of bias, illegal activities, fraud and concealing crimes as public servant'.
For the reasons that follow, I decline to recuse myself.
The directions hearing on 30 April 2015
Three proceedings were before the court at the directions hearing on 30 April 2015.
In CIV 2867 of 2013, Mr Donaldson seeks an order revoking probate of his father's will. The background and general nature of the action was outlined by Master Sanderson in Donaldson v Nolan.[1]
[1] Donaldson v Nolan [2015] WASC 47.
On 4 March 2015, Mr Donaldson applied in this action (the Revocation of Probate Action) for various orders, including an order that the first defendant be committed for contempt. That application necessitated a hearing by a judge.
By email of 21 April 2015, my associate gave notice to the parties, including Mr Donaldson, that there would be a directions hearing in relation to the Revocation of Probate Action on 30 April 2015.
By originating summons dated and filed 30 March 2015, Mr Donaldson commenced action CIV 1461 of 2015 (the Pre‑action Discovery Application) against Suffolk Investments Pty Ltd. By the email already referred to, my associate notified the parties, including Mr Donaldson, that on 30 April 2015 there would be a directions hearing in relation to the Pre‑action Discovery Application.
By email dated 28 April 2015, Mr Donaldson requested that the court file for a third proceeding be before the court on 30 April 2015. That proceeding is action CIV 2865 of 2013 (the Family Provision Action). In the Family Provision Action, Mr Donaldson seeks an order that further and adequate provision be made for him from his father's estate and that he be paid $15,000 in the interim.
The purpose of the directions hearing was to determine what steps would next be taken in the Revocation of Probate Action, including Mr Donaldson's application of 4 March 2015, and in the Pre‑Action Discovery Application, and to set any relevant hearing date for those applications.[2]
[2] ts 45.
At the directions hearing on 30 April 2015, I made the following orders:
(1)in the Revocation of Probate Action:
(a)by 7 May 2015 the first defendant file and serve any affidavit in response to the plaintiff's application dated 4 March 2015;
(b)by 14 May 2015 the parties file any submissions in relation to the plaintiff's application dated 4 March 2015;
(c)that application be listed for hearing at 10 am on 22 May 2015;
(d)the costs of today be in the cause; and
(e)the matter be admitted to the CMC list with Beech J as Case Manager;
(2)in the Pre‑action Discovery Application:
(a)by 6 May 2015 the respondent's solicitors write to the applicant setting out any objections to the applicant's affidavit and any objections to the width of the orders sought;
(b)the applicant file and serve any further affidavit and any amended application by 18 May 2015;
(c)the application be listed for directions at 2.15 pm on 22 May 2015; and
(d)the matter be admitted to the CMC list with Beech J as Case Manager;
(3)in the Family Provision Action, that the proceedings be adjourned sine die.
The recusal application
By email of 1 May 2015, Mr Donaldson demanded or requested that I recuse myself. I take that request to involve my recusal from hearing the applications listed on 22 May 2015, and from the ongoing management of the actions. His email includes, relevantly, the following:
(1)the court's conduct of the directions hearing was unethical, biased, illegal and corrupt;
(2)the court's comments that it 'saw nothing in' the Pre‑action Discovery Application shows that the court is 'concealing probate, ATO, rules of supreme court fraud';
(3)the court was asked to recuse itself on 'a perception of bias, illegal activities, fraud and concealing crimes as public servant';
(4)the court wrongly declined to make orders, requested by Mr Donaldson, that his father's estate pay some income to him, pay his legal fees, and make further disclosure to him;
(5)I should stand aside to allow the matter to be heard by a judge who does not 'cause deliberate delays to boost the pockets of corrupt lawyers'; and
(6)the other parties to the proceedings did not object to the Family Provision Action being run together with the Revocation of Probate Action, yet the court ordered that the Family Provision Action be adjourned sine die.
Apprehension of bias - legal principles
The test to be applied in determining whether a judge is disqualified by reason of the appearance of 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 determine.[3]
[3] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ); De Alwis v The State of Western Australia [No 2] [2015] WASCA 42 [67] (McLure P, Buss & Mazza JJA agreeing).
Application of that test involves two steps. First, it requires the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits. Secondly, there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.[4]
[4] Ebner v Official Trustee in Bankruptcy [2000] HCA 69; (2000) 205 CLR 337 [8] (Gleeson CJ, McHugh, Gummow & Hayne JJ); Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [63] (Gummow A‑CJ, Hayne, Crennan & Bell JJ); De Alwis v The State of Western Australia [No 2] [68].
The bare assertion that a judge is or appeared to be biased goes nowhere without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making.[5]
[5] Michael Wilson & Partners Ltd v Nicholls [67].
The fair minded lay observer is taken to be reasonable, and must bear in mind that the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial'.[6]
[6] Johnson v Johnson [12]; De Alwis v The State of Western Australia [No 4] [2015] WASCA 43 [5] (Mazza JA).
While it is important that justice must be seen to be done, it is also 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'.[7] A judge should not disqualify himself or herself on the basis of bias or a reasonable apprehension of bias unless substantial grounds are established.[8]
[7] Re JRL Ex parte; CJL [1986] HCA 39; (1986) 161 CLR 342, 352 (Mason J).
[8] Re JRL Ex parte; CJL, 352; MTI v SUL [No 2] [2012] WASCA 87 [13] (Newnes & Murphy JJA).
In judging whether there is a reasonable apprehension of bias, it should be assumed that the lay observer would base his or her opinion on a fair assessment of the judge's conduct in the context of the hearing as a whole.[9]
[9] Galea v Galea (1990) 19 NSWLR 263, 279 (KirbyA‑CJ, Meagher JA agreeing); De Alwis v The State of Western Australia [No 2] [70].
It will often be necessary with a self‑represented litigant for a judge to intervene in order to stop irrelevant matters being raised and to prevent unnecessary delays or disruptions.[10]
[10] Michael v The State of Western Australia [2007] WASCA 100 [65] (Steytler P, McLure JA and Miller AJA agreeing); De Alwis v The State of Western Australia [No 2] [71].
The lay observer must be taken to have an understanding that modern judges, responding to the need for active case management, are likely to intervene in the conduct of the proceedings and in so doing may well express tentative opinions on matters in issue.[11]
[11] British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283 [132] (Heydon, Kiefel and Bell JJ).
Merely because a court has decided matters against a party and that party feels aggrieved does not provide a basis for a claim of reasonable apprehension of bias.[12] The making of error, including appellable error, does not demonstrate prejudgment.[13]
[12] MTI v SUL [No 2] [14]; De Alwis v The State of Western Australia [No 4] [8].
[13] Michael Wilson & Partners Ltd v Nicholls [67].
I adopt Allanson J's summary of the law relating to actual bias,[14] drawn from the decision of the New South Wales Court of Appeal in Reid v Commercial Club (Albury) Ltd:[15]
1A finding of actual bias is a grave matter. An allegation of actual bias must be distinctly made and clearly proved. Such a finding should not be made lightly, and cogent evidence is required.
2If there is an allegation of prejudgment, the party making that claim must establish that the judge is 'so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented'.
3There are distinct elements underlying an assertion of prejudgment: that the judge has an opinion on a relevant aspect of the matter in issue in the particular case; will apply that opinion to the matter in issue; and will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case.
4The test requires an assessment of the state of mind of the judge in question, although it is not confined to an intentional state of mind. Bias may be subconscious.
[14] Frigger v Kitay [No 8] [2015] WASC 104 [3].
[15] Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 [68] ‑ [74] (Gleeson JA, Emmett & Tobias JA agreeing).
The disposition of the application
Many of the complaints made by Mr Donaldson amount to nothing more than a generalised assertion. In that category are the complaints of illegal activities, fraud and concealing crimes. There is no evidence to support these assertions; they are untrue. There is nothing in these complaints, and I decline to disqualify myself on these grounds.
Mr Donaldson asserts that the court made comments that it saw nothing in his Pre‑action Discovery Application. That assertion reveals a misunderstanding of the observations I made. Review of the transcript of 30 April 2015 demonstrates that the court did not make any observation about the Pre‑action Discovery Application to the effect alleged by Mr Donaldson.
Mr Donaldson says that the court's decision to adjourn the Family Provision Action notwithstanding that the other parties to it did not object to his request that the proceedings be run with the Revocation of Probate Action gives rise to an apprehension of bias. I reject that contention. Apart from anything, it is based on a false factual premise. There is, and was, an objection by other parties to the Family Provision Action to that action being heard or managed together with the revocation of probate action. Both at the hearing before me on 30 April 2015, and at the hearing before the master on 12 March 2015, counsel for the defendants stated that their respective clients' position was that the Family Provision Application should not be dealt with concurrently with the Revocation of Probate Action.[16]
[16] ts 62; ts 12 March 2015, 37.
Mr Donaldson also complains that I failed to make an order for payment by the estate of some income to him, and of his legal fees.[17] The rejection by the court of an application by a party about which the party is aggrieved does not give rise to a reasonable apprehension of bias.
[17] See ts 60.
Having reviewed the transcript of the hearing on 30 April 2015 I am satisfied that nothing in the court's conduct of that hearing is capable of giving rise to any reasonable apprehension of bias.
For these reasons, I decline to recuse myself.
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