HB v His Honour Judge T Sharp - [2016] WASC 317

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: HB -v- HIS HONOUR JUDGE T SHARP [2016] WASC 317

CORAM: BANKS-SMITH J

HEARD: 3 OCTOBER 2016

DELIVERED : 3 OCTOBER 2016

FILE NO/S: CIV 2709 of 2016

BETWEEN: HB
Applicant
AND
HIS HONOUR JUDGE T SHARP
Respondent

Catchwords:

Administrative law - Writ of prohibition - State Administrative Tribunal - Guardianship and administration - Whether apprehended bias - Whether proper for judge to rule on own recusal

Legislation:

Guardianship and Administration Act 1990 (WA), s 17A
Rules of the Supreme Court 1971 (WA), O 56
State Administrative Tribunal Act 2004 (WA), s 32

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant:     Mr R V Graham
Respondent:     No appearance
Amicus Curiae                   :    Mr G T W Tannin SC

Solicitors:

Applicant:     Vogt Graham Lawyers
Respondent:     No appearance
Amicus Curiae                   :    State Solicitor for Western Australia

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

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Makucha v Sydney Water Corporation (No 2) [2011] NSWCA 249
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Ninan v Valuer General (WA) [No 2] [2016] WASCA 170
BANKS-SMITH J:
(This judgment was delivered extemporaneously on 3 October 2016 and has been edited from the transcript.)

Background

This is an application for judicial review brought under O 56 of the Rules of the Supreme Court 1971 (WA), seeking a writ of prohibition against the respondent, His Honour Judge T Sharp. The application was filed on Friday afternoon, 30 September 2106. For reasons set out below, the applicant contended a determination is required before 2.00 pm today.
The Attorney General was not served with the papers formally but sought leave to appear by counsel as amicus curiae, and I granted that leave. The applicant did not oppose that course.
There are currently proceedings in the State Administrative Tribunal (Tribunal) under the Guardianship and Administration Act 1990 (WA) with respect to (relevantly) medical decisions to be made on the part of a woman, who for privacy reasons I will refer to as BB. The applicant is her daughter, HB. At the commencement of the hearing, I made a suppression order, directing that there shall be no reference to the applicant or her mother other than by the initials HB and BB respectively.
Relevantly, the proceedings comprise a review under s 17A of the Guardianship and Administration Act 1990 that is currently listed for hearing before the Tribunal constituted by three members, including Judge Sharp, for two days on 6 and 7 October 2016.
The s 17A review was originally listed for hearing on Friday, 30 August 2016. A directions hearing was convened on 26 August 2016 ahead of that hearing. The issue of recusal arose following the directions hearing and was raised by the applicant's solicitors by email to the Associate to Judge Sharp on Sunday, 28 August 2016.
An application to adjourn the hearing scheduled for 30 August 2016 was granted, so…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] WASC 317
Decision Date: 3 OCTOBER 2016

CaseChat Overview and Summary

HB brought proceedings against Judge T Sharp in the Supreme Court of Western Australia seeking a writ of prohibition, contending that Judge Sharp should have recused himself from presiding over a guardianship and administration matter in the State Administrative Tribunal. The dispute arose from an allegation of apprehended bias against the judge. The court was tasked with determining whether there was apprehended bias on the part of Judge Sharp and, if so, whether it was appropriate for him to rule on his own recusal.

The court examined the circumstances surrounding the allegation of apprehended bias, which stemmed from comments made by Judge Sharp during a directions hearing. The applicant argued that the judge's comments evidenced pre-judgment, leading to an apprehension of bias. The court scrutinised the content and context of the judge's remarks, including his open-mindedness about the possibility of needing additional time for the review and his indication that if he considered recusal necessary upon reviewing the audio recording, the President of the Tribunal would preside instead. The court also considered the procedural fairness and the expectation that recusal decisions are typically made by the judge himself.

In assessing the apprehended bias, the court found that Judge Sharp's comments did not display any actual bias or a real likelihood of bias. The judge's remarks were part of a routine discussion regarding the conduct of the proceedings and did not suggest a closed mind on the merits of the case. The court further observed that it is standard practice for judges to make recusal decisions themselves, as noted in Makucha v Sydney Water Corporation (No 2). Given these findings, the court concluded that there was no apprehended bias, and Judge Sharp was entitled to rule on his own recusal.

As a result, the court dismissed HB's application for a writ of prohibition, affirming that Judge Sharp did not display any apprehended bias and was justified in continuing to preside over the matter. The court found no grounds for prohibiting Judge Sharp from hearing the case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

I also note that it is the usual practice that recusal decisions are made by judges themselves: see discussion in Makucha v Sydney Water Corporation (No 2) [2011] NSWCA 249 [8] ‑ [10]. The official transcript of the Tribunal's hearing of 26 August 2016 was before the court. It is apparent from the transcript that matters discussed included timetabling, use of court time, how medical and other evidence should be treated and whether there would be cross examination of witnesses. It is clear that Judge Sharp was hoping to have the review dealt with in one day if that were possible, but his Honour left open the question of an application for further time if it were required. There was nothing unorthodox about such a discussion and those are the types of matters anticipated by s 32 of the State Administrative Tribunal Act 2004 (WA). Following the 26 August 2016 directions hearing, the solicitor for the applicant sent an email to the Associate to Judge Sharp which read (relevantly) as follows:Dear Associate Jones1.My client has instructed me to make a recusal application.2.My client is concerned that His Honour, Judge Tim Sharp, showed ostensible bias by pre‑judgment during the directions hearing on Friday, 26 August 2016 held at 3PM.3.I have engaged Christopher Shanahan SC to act in relation to the recusal application.4.After Counsel has considered the transcript there may be other grounds relied upon in support of the recusal application.5.I will be briefing Mr Shanahan on Tuesday, 30 August 2016.6.I will be applying to the Tribunal tomorrow for the transcript to be made urgently available.7.In the circumstances, [HB] seeks an adjournment of the final hearing listed for Tuesday, 30 August 2016 until the recusal application has been heard and determined.8.After the transcript has been made available, I will be lodging detailed written submissions by reference to the transcript and the precise orders the Applicant seeks. By email of 9.02 am on 29 August 2016, the Associate replied:His Honour advises that the final hearing listed tomorrow is to proceed as planned at this stage. You may address his Honour as to any recusal application you wish to make at the commencement of the hearing. If in the meantime, His Honour, upon reviewing the audio recording of the proceedings later today, considers it appropriate to recuse himself, then the President of the Tribunal, Justice Curthoys, will preside over the hearing. We will inform you if that is to occur.In relation to your request for a transcript of the directions hearing, it is unlikely that our transcript provider will be able to prepare a copy until at the earliest close of business tomorrow.However, I will ensure that an audio recording of the proceedings is available to be collected from the Tribunal's offices by early afternoon today. By letter sent by email to the Associate at 3.23 pm on 29 August 2016, the applicant's solicitors referred to the above email and said (relevantly):1)My client has instructed me to brief Mr Chris Shanahan SC in relation to the applicant's recusal application ... ...4)If his Honour considers it appropriate to recuse himself then my client would appreciate your very earliest advice to that end;5)Proceeding on the basis that his Honour will continue to hear the matter, I am instructed to file an urgent application for a copy of the relevant transcript for the purpose of briefing Senior Counsel, and otherwise in support of the recusal application;