IN THE ESTATE OF NASH

[2022] SASC 110

Supreme Court of South Australia

(Testamentary Causes Jurisdiction)

IN THE ESTATE OF NASH

[2022] SASC 110

Judgment of the Honourable Justice Stanley  

4 October 2022

COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - PARTICULAR GROUNDS - CONDUCT, INCLUDING PUBLISHED STATEMENTS

COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - PARTICULAR GROUNDS - PREJUDGMENT

Jade Cheree Bromilow has brought an application for the passing over of Peter Philip Nash as the executor of the estate of John David Nash.  This is an application by Peter Philip Nash for disqualification of the judge from hearing the passing over application on the ground of bias.   The foundation for this application concerns the refusal to grant stay orders in relation to an order for possession of property at 8 Tilley Court, Marion and a charging order over property at 455-463 South Road, Keswick.

Held:

1. The applicant has not established that the judge approached the task of deciding whether to make the stay orders with a closed mind or would approach the passing over application with a closed mind.

2. The applicant has not established that a fair-minded lay observer might reasonably apprehend that the judge will not decide the passing over application impartially and in accordance with the merits of the application.

3. The application for disqualification is dismissed.

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Mentink v Queensland Police Commissioner (No 2) (2020) 279 FCR 212; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; Nash v Corporation of the City of Marion [2022] SASCA 95; South Australia v Nash [2022] SASC 105; Sun v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71; Webb v The Queen (1994) 181 CLR 41, considered.

IN THE ESTATE OF NASH
[2022] SASC 110

STANLEY J:

Introduction

1. Peter Philip Nash (Mr Nash) is the sole executor of the estate of his late brother, John David Nash (the deceased).  The deceased died on 23 February 2016 leaving a will dated 15 February 2013 (the will).  Mr Nash has not yet filed an application for a grant of probate to be made to him. 

2. Jade Cheree Bromilow is the granddaughter of the deceased and the residuary legatee named in the will, although her interest in the estate is expressed to be conditional. 

3. Clause 8(a) of the will provides:

   I GIVE a 100% share unto my nephew [sic] Jade Bromilow upon obtaining the age of thirty, but in particular, not in the case, of her becoming either a drug addict, and or alcoholic, and or by gambler, verified by her complete medical records [a copy to be cited, in affidavit form]. 

4. It appears that the deceased’s estate included, at the time of his death, real estate at 8 Tilley Court, Marion.  On 23 September 2022 a warrant of sale was executed by the Sheriff over the property at 8 Tilley Court, Marion due to the non-payment of council rates in respect of the property. 

5. Ms Bromilow has brought an application for the passing over of Mr Nash as the executor of the deceased’s estate (the passing over application).  The primary basis of that application is an alleged failure on the part of Mr Nash to properly administer the estate.  The trial of that application is listed before me commencing on 5 October 2022. 

6. On 22 September 2022, Mr Nash made application for me to disqualify myself from hearing the passing over application on the ground of bias.  Mr Nash did not indicate whether he was alleging apprehended or actual bias. 

7. It appears that the foundation for this application concerns my refusal to grant stay orders sought by Mr Nash in relation to two previous orders of this Court.  First, an order for possession of the property at 8 Tilley Court, Marion for unpaid council rates which was the subject of an unsuccessful appeal to the Court of Appeal.[1]  Second, the making of a charging order over the property owned by Mr Nash at 455-463 South Road, Keswick, to secure a judgment debt in addition to the costs of that application.[2]

   [1]     Nash v Corporation of the City of Marion [2022] SASCA 95.

   [2]     South Australia v Nash [2022] SASC 105.

8. I refused the applications for stays of each order on 12 September 2022 and 21 September 2022.  In the case of the first order, on the basis that Mr Nash had not brought an application for special leave to appeal to the High Court from the judgment of the Court of Appeal, and that, in any event, any application for a stay should be brought before the Court of Appeal or the High Court.  In the case of the second order, on the basis that Mr Nash had failed to demonstrate any circumstances which would justify the Court exercising its discretion to grant a stay. 

9. It appears that Mr Nash alleges that I should disqualify myself from hearing the passing over application on the basis that by reason of my refusal to make the stay orders he sought, I have demonstrated that I am biased, cruel, and have pre-judged the passing over application.  Mr Nash submits that by the failure to grant the stay orders he sought, I have rendered him homeless.  He states that he could not receive a fair hearing or be successful unless I disqualify myself.  Mr Nash also alleges that I should disqualify myself on the basis of elder abuse and discrimination, and because I prevented him access to file information that confirms corrupt insider information. 

10. In circumstances where Mr Nash has not identified whether he is alleging actual or apprehended bias on my part, I will address the test in relation to each. 

    Actual Bias

11. In order to prove actual bias, Mr Nash would have to prove that I approached the task of deciding whether or not to make the stay orders or would approach the passing over application with a closed mind.  That is to say, I was unwilling to consider whether the stay orders should have been granted or would be unwilling to consider whether the passing over application should be dismissed. 

12. An allegation of actual bias requires an assessment of the state of mind of the judge rather than a conclusion as to what a reasonable, fair-minded, lay observer acquainted with the circumstances, might apprehend.[3]  Actual bias might be subconscious and proved as a matter of inference from other facts.[4]  The onus of proving actual bias falls on Mr Nash.  Though the standard of proof is on the balance of probabilities, it is nonetheless a conclusion that ought not be reached lightly.[5] 

    [3]     Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [33]; Mentink v Queensland Police Commissioner (No 2) (2020) 279 FCR 212 at [60].

    [4]     Mentink v Queensland Police Commissioner (No 2) (2020) 279 FCR 212 at [61].

    [5]     Sun v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71 at 123 and 127; Mentink v Queensland Police Commissioner (No 2) (2020) 279 FCR 212 at [61].

13. An inquiry about actual bias in the form of prejudgment would require, as I have indicated, an assessment of my state of mind.  That has to be done, at least for the most part, on the basis of what I have said and done.  The fact that a judge has previously decided a case against the person alleging bias does not necessarily evidence bias.   Any dispute which comes before a court for resolution and proceeds to judgment will almost invariably result in the judge deciding in favour of one party and against another.  The fact that the judge decided the case against one party does not necessarily prove, on the balance of probabilities, that the judge did not bring an open mind to deciding the matter in accordance with their judicial oath.  That proposition is equally valid in relation to proceedings yet to be heard.

14. There is nothing in what I said during the course of the hearing of the applications for stay or during the hearing of the application to disqualify myself which would give rise to an inference to the contrary.  Mr Nash does not identify anything other than the outcome of the stay applications and his ‘knowledge’ that I will decide the passing over application against him.  In this context, I note that Mr Nash has not as yet appealed from my decision not to make the stay orders. 

15. Nothing I have said or done would indicate that I have prejudged the passing over application.  Mr Nash has not pointed to anything that indicated prejudgement apart from the refusal to make the stay orders.  That does not prove actual bias or prejudgment.

    Apprehended Bias

16. The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.[6] 

    [6]     Ebner v Official Trusteein Bankruptcy (2000) 205 CLR 337 at [6].

17. In Ebner v Official Trustee in Bankruptcy, Gleeson CJ, McHugh, Gummow and Hayne JJ said in their joint reasons:[7]

    Deciding whether a judicial officer … might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge … will in fact approach the matter.  The question is one of possibility (real and not remote), not probability. 

    …

    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.

    [7] (2000) 205 CLR 337 at [7], [19]-[20].

18. An application for disqualification on the ground of apprehended bias is a two-step process.  The first step requires the identification of what it is said might lead a judge to decide the case other than on its legal and factual merits.  The second step requires an articulation of the logical connection between the matter and the feared deviation from the course of deciding a case on its merits. 

19. The authorities identify four distinct though overlapping, and not necessarily exhaustive, categories of case involving disqualification by reason of apprehended bias.  The four categories are interest, conduct, association and extraneous information.[8]  In this application, the only basis upon which I understand Mr Nash asserts that I am disqualified is conduct. 

    [8]     Webb v The Queen (1994) 181 CLR 41 at 74.

20. For the reasons I have already explained, I do not consider that a proper basis has been established by Mr Nash to justify me disqualifying myself for apprehended bias.  The only conduct identified by Mr Nash that forms the basis of his allegation of bias are my decisions declining to grant stay orders.  While one of those stay orders sought by Mr Nash concerned the real property which forms part of the deceased’s estate, I refused that application for procedural reasons concerned with the appropriate forum to hear and decide that application for a stay. 

21. I do not consider a properly informed fair-minded lay observer might apprehend that there is a real possibility that I will not decide the passing over application impartially and in accordance with the merits of the application.  There is no logical connection between my refusal to grant a stay of the order for possession of the property at 8 Tilley Court, Marion and Mr Nash’s fear that I will not decide the passing over application on its merits.  That proposition must be stronger in relation to the refusal to stay the order charging the property at 455-463 South Road, Keswick.  However, there is no connection between that property and the estate.  The mere fact that I have previously decided an application for stay orders in other proceedings is not a sufficient basis in the circumstances of this case for me to disqualify myself on the grounds of bias. 

    Other Allegations of Bias

22. It is unnecessary to address the allegation that I should disqualify myself on the grounds of cruelty, elder abuse and discrimination.  Cruelty and elder abuse are not recognised categories of cases requiring disqualification.  In relation to discrimination, Mr Nash did not particularise any basis upon which I had discriminated against him apart from declining to make the stay orders which he sought.

23. As to the allegation of pre-judgment, that is merely a different way of describing an allegation of actual bias.  Mr Nash must prove that I would approach the task of deciding the passing over application with a closed mind.  In effect, that I am unable to unwilling to do other than grant the application.[9]  Again, the only foundation for such an application is conduct.  The only relevant conduct are my decisions refusing Mr Nash’s applications for a stay.  For the reasons given above, that does not prove pre-judgment.

    [9]     Mentink v Queensland Police Commissioner (No 2) (2020) 279 FCR 212 at [60].

24. Mr Nash complained about me preventing him access to court file information that confirms corrupt insider information.  This appears to relate to a request by Mr Nash to inspect all documents on the probate file relating to the deceased’s estate including correspondence and notes.  In circumstances where Mr Nash already had access to the filed documents uploaded on the Court’s online portal and had been included in correspondence between the Court and the parties, the only documents to which he did not have access were internal correspondence between the registry and chambers.  Mr Nash did not provide any basis upon which he should be granted access to inspect the court’s internal correspondence and therefore, I refused the request.  Accordingly, this does not establish a basis for disqualification.

    Conclusion

25. I dismiss the application for disqualification.  I will hear the parties as to costs.