Gillies v State of New South Wales (No 3)

[2024] NSWSC 1058

Supreme Court

New South Wales

Medium Neutral Citation:

Gillies v State of New South Wales (No 3) [2024] NSWSC 1058

Hearing dates:

20 August 2024, 21 August 2024

Date of orders:

21 August 2024

Decision date:

23 August 2024

Jurisdiction:

Common Law

Before:

Garling J

Decision:

1. Dismiss the application made by plaintiff that I recuse myself from hearing the Notices of Motions presently listed before me.

2. Order the plaintiff to pay the costs of each defendant of the application.

Catchwords:

COURTS AND JUDGES – Bias – Application for recusal – Actual bias – Apprehended bias – Application for recusal on the basis that the Judge had previously made findings adverse to the plaintiff – Whether the two previous judgments were grounds for establishing actual bias or a reasonable apprehension of bias – Recusal application refused as no actual bias or reasonable apprehension of bias was established.

Legislation Cited:

Bankruptcy Act 1966 (Cth)

Crimes Act 1900

Crimes (Appeal and Review) Act 2001

Limitation Act 1969

Uniform Civil Procedure Rules 2005

Cases Cited:

Dey v Victorian Railways Commissioner [1948] HCA1; (1948) 78 CLR 62

Fancourt v Mercantile Credit Ltd [1983] HCA 25; (1983) 154 CLR 87

Gillies v Director of Public Prosecutions (NSW) [2008] NSWCCA 339

Gillies v State of New South Wales & Ors [2022] NSWSC 640

Gillies v State of New South Wales & Ors (No 2) [2022] NSWSC 968

Gillies v The Queen [2022] HCA SL 138

GILLIES, Max Perry – Application under Part 7 Crimes (Appeal and Review) Act 2001 [2021] NSWSC 1392

Michael Wilson & Partners Ltd v Nicholls & Ors [2011] HCA 48; (2011) 244 CLR 427

Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98

Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118

Texts Cited:

Not Applicable

Category:

Procedural rulings

Parties:

Max Perry Gillies (P)
State of New South Wales (D1)
Commonwealth of Australia (D2)

Representation:

Counsel:
Self Represented (P)
T Buterin (D1)
M Sherman (D2)

Solicitors:
NSW Crown Solicitors Office (D1)
Ashurst Australia (D2)

File Number(s):

2021/321823

Publication restriction:

Not Applicable

JUDGMENT

1. These proceedings were commenced by the plaintiff when he filed a Statement of Claim on 10 November 2021.

2. The plaintiff sought a number of orders which, in brief summar,y were:

1. an order for damages in the amount of $70 million for malicious prosecution, malicious procedure, and misfeasance in public office;

2. an order for damages generally, including aggravated and exemplary damages; and

3. an order pursuant to s 55 of the Limitation Act 1969 for the extension of time within which to commence proceedings – relying upon “fraud – deceit – concealment”.

3. In significant part, the causes of action said to give rise to the claim for damages of $70 million arose from the conduct of a criminal trial in August 2006, which was presided over by the late Judge Ronald Solomon in the District Court of New South Wales, and from a variety of other circumstances related to the 2006 trial.

4. The plaintiff was found guilty by the jury of one of the counts on the Indictment. He was found not guilty of other counts, and the jury was unable to agree on the balance. It will be convenient to refer to this as the “2006 trial”.

2006 Trial - Chronology

5. As a result of his conviction, which was for one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 with respect to a female victim, KO, the plaintiff was sentenced to a term of imprisonment comprising a non-parole period of 5 years commencing in 17 July 2006 with an additional term of 1 year and 8 months.

6. The plaintiff sought leave to appeal against his conviction from the 2006 trial. After a hearing which took place over three separate days in August, September, and October 2008, on 23 December 2008, the Court of Criminal Appeal granted leave to the plaintiff to appeal against conviction and sentence and ordered that the appeal in respect of both conviction and sentence be dismissed.

7. The judgment of the Court of Criminal Appeal is to be found at Gillies v Director of Public Prosecutions (NSW) [2008] NSWCCA 339.

8. In 2022, the High Court of Australia dismissed the plaintiff’s application for an extension of time within which to seek special leave to appeal from the judgment of the Court of Criminal Appeal. The High Court said that there had not been identified any question of principle of general importance sufficient to warrant a grant of special leave to appeal and, further, there was no arguable ground of appeal against the Court of Criminal Appeal’s decision. The High Court said that an appeal to it would enjoy no prospect of success and, accordingly, there ought be no grant of extension of time: see Gillies v The Queen [2022] HCA SL138.

9. On 11 December 2020, the plaintiff lodged an application under Part 7 of the Crimes (Appeal and Review) Act 2001 with this Court seeking an enquiry into his convictions for two sexual offences, one entered in 1990 and the other entered in 2006. The 2006 conviction was that which was entered at the conclusion of the 2006 trial which I have referred to at [3]-[5] above.

10. On 29 October 2021, the then Chief Judge of the Common Law Division, Justice Beech-Jones, published his reasons for dismissing the plaintiff’s application under Part 7: see GILLIES, Max Perry – Application under Part 7 Crimes (Appeal and Review) Act 2001 [2021] NSWSC 1392.

11. Another Part 7 Application for a review of his conviction from the 2006 trial was made by the plaintiff to the Governor of New South Wales in October 2019 and, as yet, has not been finalised.

Hearing before Justice Bellew of these Proceedings

12. In March and April 2022, on two separate days, Bellew J, sitting in this Division, heard a number of Motions in these proceedings. The plaintiff proceeded on a Motion which he had filed on 23 February 2022 – seeking orders with respect to the filing of a subpoena and alternative relief. The first, second, third, fifth, sixth and seventh defendants proceeded on a Notice of Motion filed on 8 February 2022, seeking orders for summary dismissal of the proceedings pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (the “UCPR”). Alternatively, those defendants sought that the Statement of Claim be struck out pursuant to r 14.28 of the UCPR. The fourth defendant filed a Motion on 14 February 2022, in identical terms.

13. On 30 May 2022, Bellew J made these substantive orders:

“1.   Proceedings are dismissed;

2.   The Notice of Motion filed by the plaintiff on 23 February 2022 is dismissed.”

14. His Honour published his reasons: Gillies v State of New South Wales & Ors [2022] NSWSC 640. Subsequently, on 19 July 2022, Bellew J ordered that the plaintiff was to pay the defendant’s costs of the proceedings. He expressed his reasons in Gillies v State of New South Wales & Ors (No 2) [2022] NSWSC 968.

Leave to Appeal – Court of Appeal

15. Mr Gillies sought leave to appeal the two judgments of Bellew J to the Court of Appeal. His application for leave to appeal was heard on 29 November 2022 by the Court of Appeal constituted by Macfarlan and Brereton JJA. The Court pronounced two orders:

“1.   Grant leave to appeal.

2.   Order that the costs of the application be costs in the appeal.”

16. The transcript of the proceedings records that the Court gave short reasons for the grant of leave to appeal.

17. The Court of Appeal granted leave on the basis that they were of the view that the plaintiff, who was the applicant for leave, had an arguable case that summary judgment should not have been granted and, secondly, that he had an arguable case that the primary Judge did not properly consider whether, if the Statement of Claim was struck out, the appropriate relief was to permit the applicant leave to re-plead the Statement of Claim.

18. On 15 May 2023, consent orders were made at the request of the parties by the Registrar of the Court of Appeal, by which the appeal against the judgments of Bellew J was allowed and the orders which he had made on 30 May 2022 and 19 July 2022 were set aside.

19. The consent orders also provided that the Statement of Claim filed on 10 November 2021 was struck out, and the plaintiff was given leave to file and serve a new Statement of Claim by 12 July 2023.

20. Other consequential orders were made to which it is unnecessary to refer.

Second Statement of Claim

21. On 11 July 2023, the plaintiff filed a new Statement of Claim (“the second Statement of Claim”). It named His Honour Judge Ronald Solomon as the first defendant, the State of New South Wales as the second defendant and the Commonwealth of Australia as the third defendant.

22. By the time the current Motions were heard, the named first defendant had died. Orders were made on 21 August 2024 to regularise the proceedings by removing him as a party, with the consequence that the State of New South Wales is now described as the first defendant and the Commonwealth as the second defendant. The State accepts that it will be responsible for the payment of any judgment which may be entered on the basis of the conduct of Judge Solomon

23. The second Statement of Claim sought the following relief in substance:

1. An order for damages in amount of $190 million for the plaintiff.

2. Damages generally including aggravated and exemplary damages.

3. An order for the extension of the statutory six year time limitation pursuant to s 55 of the Limitation Act 1969.

24. On 27 September 2023, the first and second defendants filed a Notice of Motion seeking summary dismissal of the proceedings pursuant to r 13.4 of the UCPR and, in the alternative, an order pursuant to r 14.28 of the UCPR striking out the second Statement of Claim.

25. Also on that day, the Commonwealth filed a Notice of Motion seeking similar relief. However, it sought only to strike out identified paragraphs of the second Statement of Claim, being those which referred directly to it.

26. These two Notices of Motion came before me on Tuesday 20 August 2024 for hearing. Also listed for hearing on that day were three outstanding Notices of Motion filed by the plaintiff. One was filed on 12 July 2023 and the second on 6 October 2023, which sought summary judgment for the plaintiff against the defendants on the second Statement of Claim. As well, the plaintiff’s Notice of Motion filed on 23 February 2022, and which had been considered by Bellew J and dismissed but was subject to the consent orders dealing with the appeal to which reference has been made, stood for determination.

An Application for Recusal

27. When the proceedings were called on for hearing, Mr Gillies (who appeared for himself) made an oral application that I recuse myself from hearing any of the five Notices of Motion which were listed for hearing. It will be convenient to refer to all of these five Notices of Motion as “the current Motions”.

28. On 21 August 2024, the day following the conclusion of argument on the application, I informed the parties that I refused the plaintiff’s application that I recuse myself from the hearing of the Motions. I indicated that I would provide written reasons for that decision promptly. These are the reasons for that decision.

29. Mr Gillies made his application in these terms:

“An application that you recuse yourself on the grounds of actual criminal bias concerning serious indictable offences.”

30. It became apparent towards the conclusion of Mr Gillies’ submissions on the application, that in addition to alleging actual bias, he also sought to rely on the doctrine of apprehended bias as a basis for my recusal from the hearing of the current Motions.

31. In outlining the application, Mr Gillies drew attention to two earlier judgments of mine:

1. Gillies v Eastlake [2014] NSWSC 611 (“the Eastlake judgment”); and

2. Gillies v Moir [2014] NSWSC 1481 (“the Moir judgment”).

32. He then drew attention to the contents of sub-paragraphs (a) and (b) of paragraph 155 of the second Statement of Claim. That paragraph and those two sub-paragraphs are in the following form:

“155   As alleged by the plaintiff, the 2 transcripts for 1 August 2006 from the 2006 trial concerning [KO]’s evidence about her owning a vibrator, was unlawfully changed because:

(a)   the plaintiffs defence evidence had been shared with the DPP by the plaintiff’s previous acting solicitor Mr Moir and that evidence was used by the Crown Prosecutor Shead in the presence of the jury at trial on behalf of the State; because

(b)   the plaintiff had commenced legal proceedings against Mr Moir for holding onto $53,000.00 that the plaintiff had paid into Moir’s Law Firm for Mr Moir to pay the account of Dr Tibbitts for her expert report as to the authenticity of the State’s videotape evidence “Exhibit A”.

33. The plaintiff then drew attention to [37] of the Eastlake judgment in which I recorded that Ms Eastlake had affirmed an affidavit which was not the subject of cross-examination and which I accepted.

34. The plaintiff submitted that my acceptance of Ms Eastlake’s evidence was erroneous because the contents of the affidavit of Ms Eastlake was demonstrably untrue. He submitted that I had ignored evidence which was before me during those proceedings, and which clearly demonstrated to the contrary of that which Ms Eastlake had deposed in her affidavit.

35. As I glean the substance of this particular submission, it was that my acceptance of Ms Eastlake’s affidavit, erroneous as it was said to be, meant that I had pre-judged the issue of her credibility, including the accuracy of the underlying facts to which she deposed, which were relevant to the issues falling for determination with respect to the current Motions.

36. The plaintiff further submitted that by making orders in favour of Mr Moir, as set out in the Moir judgment, I had pre-judged the matters of fact set out in [155] of the second Statement of Claim, to which I have earlier referred.

37. In support of his application, the plaintiff tendered a significant number of documents which he relied upon to demonstrate that the findings I had made in my two earlier judgments were, by reference to the Exhibits on this application, erroneous. He submitted that this demonstrated actual bias on my part in respect of the matters set out in the second Statement of Claim, and as well, going to the truth of the matters in the second Statement of Claim.

38. It is necessary to say something about the two earlier judgments by reference to what is recorded in those judgments.

The Eastlake Judgment

39. The Eastlake judgment made reference to the fact that on 3 November 2006, Mr Gillies became bankrupt as a consequence of presenting his own Debtors Petition. It also noted the Mr Gillies had been discharged from his bankruptcy on 4 November 2009 as a consequence of the operation of law.

40. From [71]-[80] the Eastlake judgment referred to the relevant provisions of the Bankruptcy Act 1966 (Cth) and discussed their effect in the context of the claims being made against Ms Eastlake and others.

41. In coming to a conclusion that the proceedings should be summarily dismissed, I did so with respect to two of the three causes of action, namely a claim for legal costs pursuant to a District Court order and a claim for damages arising from caveats lodged by Ms Eastlake, or on her behalf, with respect to two properties at Warners Bay which were claimed to be “illegal”, by concluding that the effect of the plaintiff’s bankruptcy, in the absence of proof of any assignment by the Official Trustee in Bankruptcy of those causes of action back to the plaintiff, meant that he had no standing to bring the claims which had vested in the Official Trustee by reason of the plaintiff’s bankruptcy. This conclusion is recorded at [83] and at [91].

42. I also found that, with respect to the costs order, that in the absence of any agreement on the amount of costs, or else a Costs Assessment Certificate, it was not open to the plaintiff to commence proceedings as he had done: see [83].

43. With respect to the caveat damages claim, I also found at [88]-[89] that the claim was also barred by the effluxion of the limitation period.

44. The Eastlake judgment also dealt with a third cause of action, contained in the pleadings filed by the plaintiff, which was one for malicious prosecution. At [103], I found that this cause of action was out of time and that there was no extension of the limitation period lawfully available. I also noted that there was no evidence or suggestion that the plaintiff was under any disability of a kind which could be relied upon for any extension of that expired limitation period.

45. It is to be observed that this dispositive reasoning involved decisions being made by reference to matters of law based upon incontestable facts.

46. No appeal, or application for leave to appeal, was lodged by the plaintiff against the Eastlake judgment.

The Moir Judgment

47. In [15]-[17] of the Moir judgment, I set out a broad description of the nature of the claims brought in the proceedings by the plaintiff against Mr Moir and other defendants.

48. At [21] I noted that the plaintiff pleaded that on 31 August 2005, he had entered into an arrangement under Part 10 of the Bankruptcy Act by which Jirsch Sutherland, which I understand to be a firm of accountants, were appointed “… as controlling trustee over his assets as a result of the caveats …”. The plaintiff pleaded that this arrangement had been abandoned on 12 October 2005.

49. I note that this pleaded Part 10 arrangement occurred a little over 12 months before the presentation of his Debtors Petition, the detail of which was referred to in the Eastlake judgment. As well, in this judgment, at [41]-[46], the 2006 bankruptcy was referred to in some detail.

50. At [2] and [83], the Moir judgment notes that although the plaintiff was served with the relevant Notices of Motion which were being heard on that day, he did not appear in Court, nor did he file any submissions in opposition to the relief sought.

51. At [86], my dispositive reasoning was that by reason of the plaintiff’s presentation of his own Debtors Petition in 2006 in accordance with the Bankruptcy Act and the legal consequences of that, he had no standing to bring the pleaded causes of action and that his claim therefore must be dismissed.

52. I also said at [89] that the causes of action were statute barred by reason of the effluxion of the limitation period fixed by statute, well prior to the commencement of the litigation involving Mr Moir and other defendants.

53. I note that there was no appeal or application for leave to appeal from the Moir judgment.

Legal Principles – Actual Bias

54. In Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98, Gleeson JA (with whom Emmett JA and Tobias AJA agreed) set out the applicable principles by which an allegation of actual bias of a Judge upon the basis of pre-judgment is to be considered: see [68]-[74].

55. Without in any way limiting the expression of those principles to the totality of which I have regard and apply, I note the following:

1. a finding of actual bias should not be made lightly and requires cogent evidence;

2. the applicant must establish that the trial Judge was “… so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented …”;

3. the question is not whether a Judge’s mind is blank, it is whether it is open to persuasion; and

4. this last point may be expressed differently by saying that, amongst other things, it must be established by an applicant that a Judge will apply a previously formed opinion on a relevant aspect of the current matter in which the disqualification is sought, without giving the matter fresh consideration in light of whatever may be the facts and arguments previously relevant.

Legal Principles – Apprehended Bias

56. As I have earlier noted, towards the end of his application, the plaintiff submitted that I should also consider my recusal on the basis of a reasonable apprehension of bias.

57. The test for apprehended bias is clear and well established. It is an objective one, which differently from the test for actual bias, does not require the assessment of the state of mind of the Judge concerned.

56. The principle of apprehended bias is that a Judge should not sit to determine a case if a fair-minded observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question to be determined: Michael Wilson & Partners Ltd v Nicholls & Ors [2011] HCA 48; (2011) 244 CLR 427 at 437 [31].

57. Such an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the reasonable apprehension, and the asserted conclusion that the Judge might not bring an impartial mind to bear upon the issues that are to be decided: Michael Wilson at 446 [67].

Discernment

60. In considering the submission with respect to actual bias, I note that to the extent that a finding was made in the Eastlake judgment about the acceptance of the evidence given by affidavit by Ms Eastlake, the finding was limited to a finding that the evidence contained in the affidavit relied upon in those proceedings was accepted. It did not constitute any finding about the reliability or credibility of Ms Eastlake generally.

61. That limited finding related to the circumstances surrounding how Ms Eastlake came to be interviewed by police in August 2004, in relation to an alleged sexual assault upon her by the plaintiff. The allegation of assault led to a trial which took place in 2005, at the conclusion of which the plaintiff was acquitted by the jury on all charges.

62. The subject matter of that 2005 trial, that is, an alleged sexual assault on Ms Eastlake, which had concluded favourably to the plaintiff, at a time well before the 2006 trial which gives rise to the causes of action in the second Statement of Claim, is not directly related to any part of the second Statement of Claim which is the subject of the current Motions.

63. Ms Eastlake is not mentioned by name in the second Statement of Claim. The circumstances deposed to by Ms Eastlake with respect to her complaint to police are not mentioned or referred to in the second Statement of Claim nor is the fact of, or outcome of, the 2005 trial referred to, either directly or indirectly. Mr Moir was not Ms Eastlake’s solicitor in the proceedings giving rise to the Eastlake judgment.

64. Proof of the causes of action in the second Statement of Claim does not include proof of any of the facts contained in the affidavit of Ms Eastlake which was considered by me in the Eastlake judgment.

65. Specific parts of the second Statement of Claim to which the plaintiff referred in his submissions were paragraphs 155(a) and 155(b), which are set out at [32] above. The sub-paragraphs plead reasons why the two transcripts produced for the day of 1 August 2006, which was during the 2006 trial, were unlawfully changed. The first reason pleaded is that Mr Moir, a solicitor who at one time was acting for the plaintiff, provided evidence to the DPP which was used against the plaintiff in the 2006 trial. No connection was pleaded between Ms Eastlake, her conduct or her credibility and the conduct in which it is said that Mr Moir engaged.

66. The second pleaded reason relates to the first and provides a motive why Mr Moir behaved as it is pleaded that he did, namely because the plaintiff had commenced proceedings against him with respect to monies paid to him by the plaintiff for the retention of an expert witness for the 2006 trial.

67. On their face, those sub-paragraphs do not point to any connection with any matter raised in the Eastlake judgment.

68. Assuming, for the purpose of this discernment, as contended by the plaintiff, that the acceptance of Ms Eastlake’s affidavit evidence in the Eastlake judgment was erroneous, it was not a finding which was part of the reasons for the disposition of those proceedings. The dispositive reasoning in the Eastlake judgment is described above at [41]-[44]. This stands against the plaintiff’s submissions that the proper conclusion which should be reached is that I have a closed mind to the issues which are to be determined on the current Motions.

69. Even if I had not accepted the content of Ms Eastlake’s affidavit, there was no reason for the dispositive reasoning to change. That reasoning depended upon factors entirely separate and apart from the acceptance of Ms Eastlake’s affidavit. For that reason, I do not accept that such finding, assuming it to be erroneous, demonstrates that I have a mind which is so committed to that conclusion as to be incapable of alteration on the hearing and determination of the current Motions.

70. The plaintiff submits that the Moir judgment has a connection with the second Statement of Claim. However, upon examination that argument cannot be sustained as a basis for actual bias with respect to any issue in the current Motions.

71. The claims made against Mr Moir, which were outlined in the Moir judgment, arose out of the relationship of solicitor and client between Mr Moir and the plaintiff which, it was pleaded, concluded on 15 August 2005 when the plaintiff took delivery of some of his files which were provided to him by Mr Moir’s office.

72. The evidence which was put before the Court on the hearing in 2014 which resulted in the Moir judgment, consisted of affidavits of the solicitors acting for the defendants. There was no evidence given by Mr Moir, and no occasion arose to consider the status of Mr Moir as a witness nor, in any respect, his credibility, reliability or truthfulness as a person.

73. Nor did any occasion arise in the course of the Moir judgment to consider or make any findings about the truthfulness or accuracy of the factual allegations made by the plaintiff against Mr Moir. There was no finding about the credibility, accuracy or reliability of the plaintiff who did not file any evidence in the proceedings which resulted in the Moir judgment.

74. As earlier noted in this judgment at [51]-[52], the dispositive reasoning in the Moir judgment was concerned with the effects of the Bankruptcy Act and the standing of Mr Gillies in law to bring the causes of action. I dismissed the proceedings summarily because I had formed that he had no legal standing to bring the causes of action.

75. I also concluded, as noted above, that the causes of action were statute barred.

76. There is no conclusion of fact or predetermination of any issue in the Moir judgment which relates to, or impacts upon, the contents of the second Statement of Claim, or any issue which is likely to arise on the hearing of the current Motions.

77. Before me, the plaintiff submitted that his bankruptcy in 2006 which was relevant to the disposition of each of the Eastlake judgment and the Moir judgment, was improperly and illegally caused. To the extent that this is a relevant fact in issue in the current Motions, nothing in the Eastlake judgment and the Moir judgment indicates that such an issue was raised for determination in the proceedings leading to those judgments, nor was it a matter to which I ever gave any consideration, let alone formed any conclusions about it.

78. There is no basis to accept that any such concern or contention about the reason for the plaintiff presenting his own Debtor’s Petition, thereby engaging the bankruptcy laws, could be the subject of any pre-judgment giving rise to a conclusion of actual bias.

79. In considering the question of actual bias, I have kept in mind the nature of the exercise of the powers which I am called upon to deal with by the plaintiff’s Notice of Motion seeking summary judgment against the defendants on the causes of action in the second Statement of Claim and, as well, the defendants seeking summary dismissal of the causes of action on the Statement of Claim.

80. The exercise of the power under r 13.1 of the UCPR to order judgment to be entered summarily in favour of a plaintiff, requires that the Court be satisfied, amongst other things, that the causes of action are established in circumstances where there is no dispute of fact or substantial dispute of fact, and that the defendants to the proceedings have no viable defences to the causes of action pleaded.

81. Summary judgment will not ordinarily be granted where there is any serious conflict as to a matter of fact, or if any question of the credit of a witness is centrally relevant. The power to order summary judgment is to be exercised carefully and only when it is clear that there is no real question to be tried: Fancourt v Mercantile Credit Ltd [1983] HCA 25; (1983) 154 CLR 87 at 99.

82. As to the question of summary dismissal as sought by the defendants, the exercise by the Court of the power under r 13.4 of the UCPR requires that the Court be satisfied, at least, that the proceedings are frivolous or vexatious, or that no reasonable cause of action is disclosed, or that the proceedings are an abuse of process. Evidence may be led by either party on each of these applications. The Court examines the evidence not for the purposes of making findings of contested fact, but only to determine if a triable issue is disclosed: Dey v Victorian Railways Commissioner [1948] HCA1; (1948) 78 CLR 62; Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [54]. .

83. There is nothing about the contents of either the Eastlake judgment or the Moir judgment which would enable a conclusion to be reached on cogent evidence that I do not have a mind open to persuasion with respect to the issues posed for decision on the current Motions. Nor is there any material which would enable a conclusion that I have a closed mind with respect to the issues posed for decision on the Motions, namely one which is not open to a balanced consideration of the evidence and arguments presented. Actual bias has not been established.

84. I have reached a similar conclusion with respect to the submissions about reasonable apprehension of bias. For the reasons expressed above, there is no commonality of the decided issues in the two earlier judgments and the issues to be decided in these proceedings. As well, for the reasons expressed, I do not accept that I am actually biased.

85. I also note that the Eastlake judgment was delivered a little over 10 years ago, and the Moir judgment was delivered a few months less than 10 years ago. The “reasonable observer” would take that passing of time into account, in considering any apprehension of bias.

86. No particular ground was articulated in the plaintiff’s oral submissions about the apprehension of bias. Rather, he seemed to rely upon all of the submissions which he made on actual bias and submitted that if actual bias was not demonstrated, then the same submissions would persuade the Court that there was a reasonable apprehension of bias.

87. In addition to the matters which I have previously considered, I should consider whether the fact that I have delivered two judgments, the outcome of which was adverse to the plaintiff, may be such as to give rise to a reasonable apprehension of bias on my part against the plaintiff. I am satisfied that the existence of those two judgments, which were published around 10 years ago, which were not the subject of any challenge on appeal or application for leave to appeal, which related to different subject matters to the current Motions, and which involved no actual findings involving the truthfulness, credibility or accuracy of the plaintiff either as a witness or more generally, could not sustain an argument that the test for apprehended bias has been satisfied.

88. For those reasons I rejected the submissions that I ought recuse myself from the hearing of these Motions on the grounds of apprehended bias.

Costs

89. The ordinary rule pursuant to r 42.1 of the Uniform Civil Procedure Rules 2005 is that costs should follow the event.

90. The plaintiff brought this application without notice to the defendants, and the application took the entire day upon which the substantive Motions were listed for hearing. The plaintiff was entirely unsuccessful in his application.

91. There is no reason why costs should not follow the event.

92. Accordingly, I order the plaintiff to pay the costs of each defendant of the application.

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Decision last updated: 26 August 2024