Harradine v Chief Executive of the Department for Education - [2021] SASCA 139

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
HARRADINE v CHIEF EXECUTIVE OF THE DEPARTMENT FOR EDUCATION
[2021] SASCA 139
Judgment of the Honourable President Livesey (ex tempore)
18 November 2021
COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - DISPENSING WITH RULE AGAINST BIAS - GENERALLY
COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - REASONABLE APPREHENSION OF BIAS GENERALLY
By interlocutory application dated 16 November 2021, the applicant sought an order that a Judge of the Court of Appeal disqualify himself from hearing his application for permission to appeal against a decision of the Full Bench of the South Australian Employment Tribunal.
The applicant contended that a hypothetical observer would share his apprehension that the Judge would not bring an impartial and unprejudiced mind to his application for permission because: before the Judge’s appointment to this Court, he was briefed separately to represent two parties in matters involving the applicant; following the Judge’s appointment to this Court, he dismissed an application made by the applicant for Judicial Review, and is alleged to have been unduly dismissive of the applicant’s concerns about the Judge’s prior involvement.
Held (per Livesey P), dismissing the application:
1.Whether individually or collectively, none of the matters raised by the applicant gives rise to the requisite apprehension that the fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of his application for permission to appeal.

2. The applicant is to pay the respondent’s costs fixed in the amount of $350.
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; Contract Mining Services Pty Ltd v Adelaide Brighton Cement Limited [2020] SASC 69; Ebner v Official Trustee in Bankruptcy (2020) 205 CLR 337; Harradine v Chief Executive of the Department for Education and Child Protection (Supreme Court of South Australia, Kourakis CJ, Doyle and Livesey JJ, 11 March 2021); Harradine v Chief Executive of the Department of Education [2021] SAET 197; Harradine v The Magistrates Court of South Australia & Ors [2020] SASC 210; Harradine v The Magistrates Court of South Australia [2021] SASCA 16; Re JRL; Ex parte CJL (1986) 161 CLR 342; Vakauta v Kelly (1989) 167 CLR 568; Wilkinson v Downton [1897] 2 QB 57, considered.

HARRADINE v CHIEF EXECUTIVE OF THE DEPARTMENT FOR EDUCATION
[2021] SASCA 139
Court of Appeal – Civil
LIVESEY P:

By an application dated 16 November 2021, Mr Harradine applies for an order that I disqualify myself from sitting on his application for permission to appeal against a decision of the Full Bench of the South Australian Employment Tribunal (the Tribunal).[1]
[1] Harradine v Chief Executive of the Department of Education (No 3) [2021] SAET 197.
Paradoxically, Mr Harradine's Notice of Appeal dated 25 October 2021 raises questions about the rejection of his application that President Dolphin should have been disqualified from hearing his matter in the Tribunal.
By his affidavit dated 16 November 2021, Mr Harradine raises four matters:
1.First, he relies on the fact that I was briefed to represent a barrister in defamation proceedings brought by him against the barrister in 2019. He believes she may have been a close friend of mine.
2.Secondly, he relies on the fact that I was briefed by the Australian Government Solicitor to represent the Child Support Agency in the Full Court during 2019, on an appeal against a judgment he obtained in the District Court. He believes I closely considered the District Court judgment in preparation for the appeal.
3.Thirdly, during 2020 I heard and dismissed his application for Judicial Review concerning a claim made in the Magistrates Court involving his former wife. He was dismayed, he says, when I delivered an ex tempore judgment shortly after the end of argument. The Court of Appeal later allowed Mr Harradine's appeal against my judgment.[2]
4.Fourthly, Mr Harradine believes that during the Judicial Review directions hearing and the recent Court of Appeal callover, when he raised concerns about my prior involvement in matters concerning him, I was unduly dismissive of concerns that were worthy of serious consideration.
[2] Harradine v The Magistrates Court of South Australia [2021] SASCA 16.
The test to be applied on an application for disqualification is not in doubt, nor are the relevant considerations.[3] First, the starting point is that it is the duty of a Judge to sit and hear a case allocated to that Judge.[4] Judges do not select their cases, and parties cannot select their Judges. Judges “are not at liberty to decline to hear cases without good cause” and an objection must be based “upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case”.[5] In Re JRL; Ex parte CJL Mason J explained:[6]
It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or an account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. … In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”… 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.
(footnotes and citation omitted).
[3]     See Contract Mining Services Pty Ltd v Adelaide Brighton Cement Ltd [2020] SASC 69 citing Ebner v Official Trustee in Bankruptcy (2020) 205 CLR 337.
[4]     Contract Mining Services Pty Ltd v Adelaide Brighton Cement Ltd [2020] SASC 69, [7] (Livesey J) citing Ebner v Official Trustee in Bankruptcy (2020) 205 CLR 337, [19] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[5]     Contract Mining Services Pty Ltd v Adelaide Brighton Cement Ltd [2020] SASC 69, [7] (Livesey J) citing Ebner v Official Trustee in Bankruptcy (2020) 205 CLR 337, [19] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[6]     Re JRL; Ex parte CJL (1986) 161 CLR 342, 352 (Mason J).
Secondly, the requisite test is whether the fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the case.[7] This might be referred to as “the requisite apprehension”.
[7] Contract Mining Services Pty Ltd v Adelaide Brighton Cement Ltd [2020] SASC 69, [8] (Livesey J).
Thirdly, it is necessary to identify the precise conduct or matter, whether in the course of, or outside, the proceedings which it is said gives rise to the requisite apprehension of bias.[8]
[8] Contract Mining Services Pty Ltd v Adelaide Brighton Cement Ltd [2020] SASC 69, [9] (Livesey J) citing Ebner v Official Trustee in Bankruptcy (2020) 205 CLR 337, [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
Fourthly, it is necessary to articulate the “logical connection” between the matter the subject of complaint and “the feared deviation from the course of deciding the case on its merits”.[9]
[9] Contract Mining Services Pty Ltd v Adelaide Brighton Cement Ltd [2020] SASC 69, [11] (Livesey J) citing Ebner v Official Trustee in Bankruptcy (2020) 205 CLR 337, [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
Here, Mr Harradine's concern appears to be a combination of concerns about prior association and prejudgment.
In response to Mr Harradine's concerns, I should formally indicate:
1.In 2019 I was asked to represent a barrister in defamation proceedings and I agreed. I did not know the detail of the case and I have never been a friend of the barrister. I was not required to appear.
2.In 2019 I accepted a brief to represent the Child Support Agency in the Full Court of the Supreme Court of South Australia and to provide advice regarding Wilkinson v Downton liability,[10] as well as the potential for a duty of care arising under the child support legislation. Ultimately, I was not required to appear.
3.In 2020 I dismissed Mr Harradine's application for Judicial Review. I gave judgment immediately after the argument but, as the reasons show, I had undertaken considerable preparation.[11] My decision was overturned because the Court of Appeal took a different view of the Magistrate's conduct of a directions hearing in a small claim matter.
4.Whether in the directions hearing of the application for Judicial Review, or the recent callover, I have never been dismissive of Mr Harradine's concerns, as the transcripts clearly show. I have always reassured Mr Harradine that it is his right to make whatever application he sees fit to make and I am not in fact concerned, personally or otherwise, whether he does so.
[10] Wilkinson v Downton [1897] 2 QB 57.
[11] Harradine v The Magistrates Court of South Australia & Ors [2020] SASC 210.
Whilst it might be said that the first two matters were effectively waived by Mr Harradine when he did not make an application that I disqualify myself in 2020,[12] I prefer to deal with the application by considering the matters raised both individually and collectively when considering whether they give rise to the requisite apprehension.
[12] Vakauta v Kelly (1989) 167 CLR 568.
It appears from the material put before me today that Mr Harradine first raised questions of bias concerning me in his special leave submissions dated 12 April 2021, at paragraph 2.3 of part 3. In those submissions he submitted that I ought not to have heard the application for permission to appeal the decision in that case.[13]
[13] Harradine v Chief Executive of the Department for Education and Child Protection (Supreme Court of South Australia, Kourakis CJ, Doyle and Livesey JJ, 11 March 2021).
In Contract Mining Services Pty Ltd v Adelaide Brighton Cement Ltd I endeavoured to address,[14] in some detail, the considerations relevant to prior representation, from paragraph 54. In my view, my prior briefs do not give rise to the requisite apprehension. That I decided a case adversely to Mr Harradine on the merits, without making any adverse findings about him or his credit, is another well-recognised category of case which does not give rise to the requisite apprehension.
[14] Contract Mining Services Pty Ltd v Adelaide Brighton Cement Ltd [2020] SASC 69.
As for Mr Harradine's concern about my attitude to his application, he may rest assured that, though I am personally unconcerned, I take the issue raised by his application seriously and I have addressed it objectively and on its merits.
In my opinion, whether individually or collectively, none of the matters raised by Mr Harradine requires the conclusion that the fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of his application for permission to appeal. That is so regardless of human frailty and the potential for unconscious bias.[15]
[15] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ); CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76, [51] (Nettle and Gordon JJ), [132] (Edelman J).
In the circumstances, I dismiss the application dated 16 November 2021.
I will make an order for costs in favour of the respondent fixed in the amount of $350.