HB v His Honour Judge T Sharp
[2016] WASC 317
•3 OCTOBER 2016
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 that the applicant could pursue a recusal application.
The application for recusal was listed before Judge Sharp on 29 September 2016.
During that hearing, it became apparent that the applicant, by her counsel, was anticipating a challenge to Judge Sharp's decision to hear the recusal application. In essence, it was put that Judge Sharp ought to recuse himself from hearing the recusal application. Judge Sharp raised the question as to whether that meant an application was to be made to the Supreme Court, and after seeking instructions, counsel said that he did intend to seek relief from the Supreme Court.
Judge Sharp then adjourned the hearing of the recusal application to 2.00 pm this afternoon. The substantive hearing remains listed for 6 and 7 October 2016.
Grounds - writ of prohibition
The grounds set out in the application for a writ of prohibition are:
1.His Honour would be acting in excess of jurisdiction by not recusing himself from deciding the applicant's earlier recusal application, as a result of a reasonable apprehension of bias arising from pre‑judgment.
2.The reasonable apprehension of bias (arising from pre‑judgment) comes from an email sent by the Judge's Associate on 29 August 2016 at 3.56 pm.
The body of the relevant email is set out in full below, but in summary, it indicates a tentative view on the part of Judge Sharp that he would not recuse himself.
Principles as to tentative views and apprehended bias
As the applicant rightly contended, the expression of tentative views during the course of argument does not manifest partiality or bias.
The Court of Appeal recently summarised the principles with respect to enunciation of preliminary views and apprehension of bias in Ninan v Valuer General (WA)[No 2] [2016] WASCA 170 [20] - [22]:
The written reasons for our decision of 4 July 2016 made it clear that our view of the appellant's case was a preliminary view based on the written material filed to that date by the appellant. The appellant was provided with a further opportunity to address the court orally to persuade us otherwise. It is entirely proper for a court to express preliminary views so that the litigant can address the issues and problems thereby identified: Vakauta v Kelly (1989) 167 CLR 568, 571. We had not formed any final view on the matter and there is nothing in the reasons for our decision of 4 July 2016 or otherwise that might reasonably suggest we had.
….
While it is not clear that the appellant sought to rely upon a reasonable apprehension of bias, for completeness it is appropriate to deal with it. 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: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11]. That requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that a judge might not bring an impartial mind to bear upon the issues that are to be decided: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [67]. The onus of establishing the facts upon which an allegation of a reasonable apprehension of bias is made lies on the party making it.
Judges often form tentative or preliminary opinions, and counsel are usually assisted by hearing those opinions and being given an opportunity to deal with them: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 493.
The rule against bias is directed to prejudgment incapable of being altered, rather than predisposition capable of being swayed by evidence or argument: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, 531 ‑ 532 [71] ‑ [72] (Gleeson CJ & Gummow J).
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 communications in issue
26 August 2016 directions hearing before Judge Sharp
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).
The emails of 28 and 29 August 2016
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 Jones
1.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;
By email of 3.56 pm on 29 August 2016, the Associate replied as follows:
The Tribunal has prepared an unofficial transcript of the directions hearing on Friday based on the audio recording of that hearing and generated by a SAT Officer. His Honour considered that this unofficial transcript may be of some assistance to you as the official copy cannot be made available by tomorrow. A copy of the unofficial transcript is attached.
His Honour does not at this stage, having reviewed the 'transcript', consider that he should recuse himself.
His Honour has indicated that you may make any application contemplated in your letter in the presence of all other parties at the commencement of the hearing tomorrow.
The sentence 'His Honour does not at this stage, having reviewed the "transcript", consider that he should recuse himself', is the source of the alleged apprehended bias. The applicant does not rely on anything said at the hearing of 26 August 2016, a matter confirmed before me.
In my view, it cannot reasonably be said that by that sentence, Judge Sharp evinced a pre‑determination of the issue or evinced any indication that he would not bring an impartial mind to the question of the recusal application. All that is expressed is a tentative view.
The sentence must be read in the context of the communication exchange. The Tribunal assisted with the provision of an 'unofficial' transcript (and I note that the official transcript has subsequently been produced and no issue is taken as to the accuracy of the unofficial transcript). The Judge, by his Honour's Associate, answered the question asked of him by informing the applicant's solicitors that he would not, at that time, recuse himself. It was always clear that there would be an application and oral submissions would be made. In fact, the substantive hearing was adjourned for that purpose. Nothing in the email suggests his Honour would not carefully listen to and take into account any oral submissions to be made on behalf of the applicant.
I note that the applicant's counsel was clearly aggrieved by the fact that the communication about his Honour's tentative view was made by email. Much was made of it in the written submissions. I do not consider anything rests on the fact that course was undertaken in this case. The solicitors and the Associate had been communicating by email and, as I have already said, it was clear that an oral hearing was to ensue.
Outcome
The applicant suggested there might be some interim relief, although the grounds were not enunciated with any particular clarity.
I do not consider that the sentence complained of (or indeed anything in the emails from the Associate of 29 August 2016), could cause a fair‑minded observer to reasonably apprehend that the respondent might not bring an impartial and unprejudiced mind to the recusal application.
In the circumstances, I do not consider the application has any reasonable prospect of success and I dismiss the application.
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