Douglas v McLernon [No 2]

[2014] WASC 316

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   DOUGLAS -v- McLERNON [No 2] [2014] WASC 316

CORAM:   LE MIERE J

HEARD:   ON THE PAPERS

DELIVERED          :   10 SEPTEMBER 2014

FILE NO/S:   CIV 1930 of 2012

BETWEEN:   OLIVER GEORGE DOUGLAS

Plaintiff

AND

TERENCE JOHN McLERNON
Defendant

FILE NO/S              :CIV 2307 of 2012

BETWEEN              :ANTHONY BILLIS

Plaintiff

AND

TERENCE JOHN McLERNON
First Defendant

PURPOSE HOSTING
Second Defendant

REDBACK STUDIOS AUSTRALIA PTY LTD
Third Defendant

TONI FITZGERALD
Fourth Defendant

LAURANCE KERRY FITZGERALD
Fifth Defendant

FILE NO/S              :CIV 2308 of 2012

BETWEEN              :PAUL MATICH

Plaintiff

AND

TERENCE JOHN McLERNON
First Defendant

PURPOSE MARKETING GROUP PTY LTD
Second Defendant

REDBACK STUDIOS AUSTRALIA PTY LTD
Third Defendant

TONI FITZGERALD
Fourth Defendant

LAURANCE KERRY FITZGERALD
Fifth Defendant

Catchwords:

Application for judge to disqualify himself - Apprehended bias - Whether fair­minded and informed observer might conclude that the judge might not be impartial or approach issues with an open mind

Legislation:

Nil

Result:

Application granted

Category:    B

Representation:

CIV 1930 of 2012

Counsel:

Plaintiff:     No appearance

Defendant:     No appearance

Solicitors:

Plaintiff:     Hotchkin Hanly

Defendant:     In person

CIV 2307 of 2012

Counsel:

Plaintiff:     No appearance

First Defendant             :     No appearance

Second Defendant         :     No appearance

Third Defendant           :     No appearance

Fourth Defendant          :     No appearance

Fifth Defendant            :     No appearance

Solicitors:

Plaintiff:     Hotchkin Hanly

First Defendant             :     In person

Second Defendant         :     In person

Third Defendant           :     In person

Fourth Defendant          :     In person

Fifth Defendant            :     In person

CIV 2308 of 2012

Counsel:

Plaintiff:     No appearance

First Defendant             :     No appearance

Second Defendant         :     No appearance

Third Defendant           :     No appearance

Fourth Defendant          :     No appearance

Fifth Defendant            :     No appearance

Solicitors:

Plaintiff:     Hotchkin Hanly

First Defendant             :     In person

Second Defendant         :     In person

Third Defendant           :     In person

Fourth Defendant          :     In person

Fifth Defendant            :     In person

Case(s) referred to in judgment(s):

Ebner v Official Trustee (2000) 205 CLR 337

1. LE MIERE J:  The plaintiff sues Mr McLernon, who is the defendant or a defendant in each of these actions, for damages for defamation.  The plaintiff says that Mr McLernon has defamed him in multiple publications on a website maintained by the defendants or which the defendants have assisted in establishing or maintaining.  The imputations said to arise from the publications include allegations of fraud and criminal conduct.  Mr McLernon has pleaded truth.  Mr McLernon contends that I should disqualify myself from hearing these actions on the ground of bias.  It is not clear whether Mr McLernon's claim is of actual or apprehended bias.  It is sufficient that I consider the claim to be of apprehended bias.  I will start by outlining Mr McLernon's contentions and how he has communicated them to the court.

McLernon requests judge be disqualified

1. On 13 August Mr McLernon sent an email to my associate in relation to an email he had received from the plaintiffs' solicitors in which they requested a copy of the associates' record for all hearings that have taken place for these matters.  Mr McLernon should have, but did not, send a copy of his email to the plaintiffs' solicitors.  In his email, after making adverse comments about the plaintiffs' solicitors, Mr McLernon said that he would be applying for an adjournment for 90 days on the grounds that he needed time to apply to the Chief Judge to have me stood down from this matter because of a story in his several books about events long ago in which he refers to many people including me.  Mr McLernon said he was after an unbiased judge.  On my instructions my associate responded to Mr McLernon informing him that he should apply to me to disqualify myself from further hearing these matters and that he should do so by a separate application or at the next scheduled directions hearing.  Mr McLernon responded by a further email of 13 August in which he said:

   I prefer that the good judge agrees to disqualify himself rather than drag the Chief Judge and waste time and so on.

2. There were then further communications between my associate, at my instruction, and Mr McLernon in relation to the grounds on which he sought an adjournment of the next directions hearing.  In the course of emails of 16 August and 20 August 2014 to my associate Mr McLernon stated that the matters should not proceed further until I addressed whether I would disqualify myself.

3. There was a directions hearing in these matters on 21 August 2014.  At the outset I referred to Mr McLernon's communications to the court to the effect that I should disqualify myself from further hearing these matters, that that was a matter which should be dealt with in open court and invited Mr McLernon to state the reasons why I should disqualify myself from further hearing these matters.  There followed exchanges between Mr McLernon and myself in relation to the grounds on which Mr McLernon says I should disqualify myself.  Mr McLernon referred to the books that he had written.  Mr McLernon had earlier delivered one of those books to my associate and that book was produced to Mr McLernon.  I asked Mr McLernon to identify where there were references to me in his book.  Mr McLernon, in essence, said that the matters were in the book but did not identify any particular references in the book.  In the course of explaining to Mr McLernon why I was asking him to identify the references to me in his book I said:

   I have a duty to hear cases unless there is good reason for me to disqualify myself.  If a judge was to disqualify himself when a party asserted that he should, that would cast an intolerable burden on my colleagues and on the court, and would allow the possibility that a person can affect the composition of the bench by calling upon people to disqualify themselves.  So the grounds and evidence upon which it is based must be clearly identified, so I want you to identify what is the material that you rely upon.

   In response Mr McLernon said:

   It's copious and it will take me some time.

   In the course of further exchanges with Mr McLernon I informed him that when a judge is asked to disqualify himself on the grounds of impartiality his duty is to deal with the matter as soon as possible and if the matter continues to be heard, the party may be taken to have waived his objection to the judge hearing the matter.  In response Mr McLernon said that he was not waiving anything.

4. In the course of the hearing Mr McLernon referred to a page in one of his books which contained a reference to me.  Mr McLernon was unable or unwilling to identify the other material in the book which he claimed referred to me.  I directed that Mr McLernon should on or before 25 September 2014 file and serve an outline of submissions identifying the facts and grounds on which he contends that I should disqualify myself from further hearing the action together with any affidavit deposing to the facts he relied upon.

5. On 2 September 2014 Mr McLernon sent a further email to my associate.  Mr McLernon stated, amongst other things:

   I formally withdraw my request.  I do not wish to spend another three years arguing in court.  The Honourable judge has refused to read the information I have already forwarded by both book and disc three times over two years.  My claims are very well laid in that information.  I believed the Honourable judge has no intention of accepting my request and for him to state, 'I do not want to burden my Brother Judges with extra work' says it all.

   The plaintiffs opposed Mr McLernon's application but did not make any submissions in opposition.

Apprehended bias - legal principles

1. The circumstances in which a judge should decline to hear a matter were stated by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee (2000) 205 CLR 337:

   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.

   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.

   It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise [19] - [21].

2. The test to be applied is whether a fair‑minded and informed observer might conclude that the judge might not be impartial or approach the issues with an open mind.

Matters relied upon by defendant

1. Mr McLernon produced a book to the court.  He said that he had delivered discs containing his other books to the court but I have not located them.  The book is written by Mr McLernon and appears to be self‑published.  Mr McLernon invited me to read the book or alternatively four chapters which he says are relevant to the matter on which he relies.  I declined to do so.  It appears from the title of the book that its principal focus is a former police officer and politician.  It appears from the table of contents that it touches upon many people and events which may or may not be related to one another.  Mr McLernon drew my attention to page 8 which contains photographs or images of eight people, including me.  The broad outline of the story, insofar as it refers to me, can be discerned from that page of the book together with the things that Mr McLernon has said in court and in his emails to the court.  It is not appropriate that I detail these matters because the events and people referred to have nothing to do with the matters in issue in these actions.  In the book produced to the court Mr McLernon has written things which might be understood to make adverse allegations against me and a number of people who have held high office in Australia or Western Australia.

Decision

1. I find that a fair‑minded observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the issues in this case.  A fair‑minded observer might apprehend that I might hold some animosity towards Mr McLernon because of the things he has written which refer to me.  Furthermore, a fair‑minded observer might apprehend that my assessment of Mr McLernon's credibility or reliability might be influenced by my knowledge of the truth, falsity, accuracy, or inaccuracy of the things he has written which refer to me.

Conclusion

1. In an email of 2 September 2014 to my associate Mr McLernon stated that he formally withdrew his request that I should remove myself from hearing these actions.  However, the natural and ordinary meaning of Mr McLernon's email is that he continues his attack on my partiality.  In all the circumstances it is prudent that I not hear these actions further.  The first of these actions was commenced more than two years ago.  However, the actions have not even proceeded to the stage of the pleadings being determined.  That is at least in part due to successive defective pleadings produced by the plaintiffs.  In any event, the actions are still at a relatively early stage and no substantial disruption to the court or the parties will be caused by the matter being taken over by another judge.  It is not in the interests of the administration of justice that I should continue to manage this case in circumstances where the plaintiff has made, and not withdrawn, allegations of partiality and a fair‑minded and informed observer might conclude that I might not be impartial or approach the issues in the action with an open mind.