James Bowers v Judicial Commission of New South Wales (No 2)

[2021] NSWSC 917

Supreme Court

New South Wales

Medium Neutral Citation:

James Bowers v Judicial Commission of New South Wales (No 2) [2021] NSWSC 917

Hearing dates:

16 July 2021

Date of orders:

30 July 2021

Decision date:

30 July 2021

Jurisdiction:

Common Law

Before:

N Adams J

Decision:

(1) The plaintiff’s summons is dismissed pursuant to r 13.4(1)(b), Uniform Civil Procedure Rules 2005 (NSW).

(2) The plaintiff is to pay the defendant’s costs of the motion and the proceedings.

Catchwords:

PRACTICE AND PROCEDURE — summons – summary dismissal – whether no reasonable cause of action disclosed – where plaintiff seeking judicial review of decision of Judicial Commission to summarily dismiss complaint made by him – where plaintiff alleged excessive judicial intervention, denial of access to the court file, error in judgment and unknown changes to the judgment – where access to court file eventually granted and error in judgment corrected – where plaintiff had right of appeal in respect of alleged excessive intervention – Commission dismissed complaint due to available right of appeal – where Commission obliged to dismiss complaint if incapable of disclosing misconduct or conduct warranting removal – held, no reasonable cause of action disclosed – summons dismissed

Legislation Cited:

Interpretation Act 1987 (NSW), s 9(2)

Supreme Court Act 1970 (NSW), s 69

Civil Procedure Act2005 (NSW)

Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 59.4

Judicial Officers Act 1986 (NSW), ss 5, 15, 20, 21

Cases Cited:

Aon Risk Services Australia Ltd v The Australian National University (2009) 239 CLR 175; [2009] HCA 27

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Bowers v Bowers [2020] NSWSC 109

Bowers v Judicial Commissionof New South Wales (No 1) [2021] NSWSC 916

Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA1

Galea v Galea (1990) 19 NSWLR 263

General Steel Industries Inc v Commissioner for Railways(NSW) (1964) 112 CLR 125; [1964] HCA 69

Minister for Immigration and Citizenship v Li (2013) 249 CLR 323; [2013] HCA 18

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16

Taveli v Minister for Immigration, Local Government & Ethnic Affairs (1989) 86 ALR 435

Ugur v Attorney General for New South Wales [2019] NSWCA 86

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

Texts Cited:

Matthew Groves, ‘Excessive judicial intervention’ (2021) 50 Australian Bar Review 139

Category:

Principal judgment

Parties:

James Richard Bowers (Plaintiff)
Judicial Commission of NSW (Defendant)

Representation:

Counsel:
Daniel Farinha (Defendant)

Solicitors:
Self-represented (Plaintiff)
Crown Solicitor’s Office (NSW) (Defendant)

File Number(s):

2021/88757

Publication restriction:

Nil.

Judgment

1. By further amended summons filed on 22 April 2021 the plaintiff, James Richard Bowers, seeks judicial review of a decision of the Judicial Commission of New South Wales (“the Commission”) to summarily dismiss a complaint made by him about Hallen J. The complaint arose from family provision proceedings in the Equity Division of this Court. Mr Bowers seeks orders in the nature of certiorari and mandamus in relation to the decision of the Commission of 13 April 2021 on the basis of “perversity”.

2. By notice of motion filed on 4 May 2021 and amended on 18 May 2021, the Commission seeks summary dismissal of these proceedings pursuant to r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) and an order that Mr Bowers pay its costs.

The hearing

3. The hearing of the notice of motion came before me for hearing on 16 July 2021. Mr Farinha of counsel appeared for the Commission. He relied upon an affidavit of Sophie Maltabarow, affirmed on 4 May 2021 and the exhibit thereto. He also provided written submissions.

4. Mr Bowers declined to provide any written submissions prior to the hearing. He did not object to the affidavit of Ms Maltabarow, nor to the 1058-page exhibit to her affidavit. He too relied on that material which contained, inter alia, copies of Hallen J’s judgment as at 20 February and 5 March 2020 and transcript extracts said to reveal excessive judicial intervention by Hallen J during cross-examination and in exchanges with Mr Bowers’ counsel.

5. This notice of motion was listed to be heard at the same time as another notice of motion filed by the Commission seeking summary dismissal of separate proceedings brought by Mr Bowers against the Commission. Mr Bowers objected to that course and the two matters were then heard separately and are the subject of separate judgments: see Bowers v Judicial Commissionof New South Wales (No 1) [2021] NSWSC 916.

Factual background

6. Mr Bowers is the youngest of seven children. He is a qualified solicitor. In 2018 his mother passed away. She left him a one-sixth share of her estate, to be held on trust and distributed at the executors’ discretion.

7. By summons filed on 18 October 2018 Mr Bowers brought a claim under the Succession Act 2006 (NSW) for a family provision order from the estate of his mother. He claimed that he was entitled to the entirety of his late mother’s estate.

8. Justice Hallen heard the matter on 20, 21 and 27 November 2019. Judgment was delivered on 20 February 2020: Bowers v Bowers [2020] NSWSC 109. Mr Bowers was successful to the extent that instead of a trust of one sixth of the estate, he received a lump sum payment of $750,000 from his mother’s estate. Relevantly to Mr Bowers’ complaint, the judgment of 20 February 2020 contained the following at [160]-[161]:

“[160] The most recent report about James' medical conditions is a report dated 10 September 2018, from Dr Julian Short, a consultant psychiatrist. James has consulted Dr short twice, once in January 2005, and then on 7 August 2018. Dr Short reported that ‘[O]ver the course of time, Mr Bowers' diagnosis has changed and it has emerged that he suffers a severe Schizophrenic illness’ (emphasis removed from original). The report goes on:

‘while I do not believe there is any problem with self-care or independent living, Mr Bowers suffers severe limitations in his social activities, owing to the damage to his personality secondary to his illness. The changes he has suffered have and will continue to have a profound effect upon his interpersonal relationships and are such that he could not possibly work in the practice of law for which he is qualified. while Mr Bowers' intellect remains unimpaired, the requirements of collaborative work and interpersonal sensitivity would be quite beyond his capacity. His ability to appreciate the needs and respond to the subtleties of every day interactions of colleagues or clients will remain grossly impaired.

ln any interpersonal situation, there would be such a glaringly obvious abnormality in his behaviour and conversation that he would be immediately labelled as different and peculiar. Such as the degree of his disability that I do not believe he would be able to function in any workplace.

It would be more than reasonable to question my ability to make such statements on the basis of but two meetings, especially as our consultations have been many years apart. Normally I would not be willing to write definitively about an individual with so little contact, however the severity of Mr Bowers' illness is very evident and my more than forty years experience as a psychiatrist leave me with little hope that my assessment of his disability will be proven wrong.

ln summary, despite Mr Bowers' high level of intellectual competence, he would be quite unable to attend work or to participate in education or retraining. The prognosis for his illness and his future function in life remains bleak in the extreme.’

[161] lt seems likely that the picture of James' ability to maintain employment is not as bleak as Dr Short suggested. It does not appear that, since the report was prepared, and at a time closer to the hearing, Dr Short was informed that James had been in employment since 10 July 2019 or that he was in employment at the date of the hearing: Tcpt, 20 November 2019, p 71(45) - p 72(05), as no subsequent report by Dr Short was in evidence.”

9. After judgment was delivered, Mr Bowers wrote to Hallen J’s associate stating that the reference to him suffering from schizophrenia was incorrect and requesting that it be amended. His Honour acceded to this application and amended [160] and [161] of the judgment published on 5 March 2020 as follows (amendments in italics):

“[160] …

…

ln summary, despite Mr Bowers' high level of intellectual competence, he would be quite unable to attend work or to participate in education or retraining. The prognosis for his illness and his future function in life remains bleak in the extreme.’

In a subsequent report dated 4 December 2018 from Dr Short, he opines:

‘I have struggled with a diagnosis for Mr Bowers, initially seeing him as having an affective illness. Unfortunately the clinical picture was complicated by development of a delusional belief system and this, combined with a quite extraordinary lack of affect, had led me to diagnose a schizophrenic illness. On reviewing him today, this was obviously not correct and although is affect is limited and somewhat odd, it is clear that he has a chronic depressive state, which fortunately has been helped by the addition of a small dose of lithium carbonate to a combination of antidepressants.’

[161] … Tcpt, 20 November 2019, p 71(45) - p 72(05). (No subsequent report by Dr Short was in evidence dealing with James’ employment.)”

10. The above change is reflected by an annotation on Caselaw which notes that changes were made to [160]-[161] of the judgment on 5 March 2020. A screenshot confirming this was annexed to the affidavit of Ms Maltabarow. Mr Bowers could not identify any other amendments made to that judgment.

11. No appeal was ever brought in relation to the decision of Hallen J.

12. On 28 January 2021, Mr Bowers filed a declaration making a complaint against Hallen J to the Commission. The complaint was in the following terms:

“1. That the Judge excessively intervened in the trial in terms of questioning the plaintiff and making pejorative comments and bullying the plaintiff’s Counsel in breach of Tousek v Bernat 1959 61SR NSW 203 at 209 per Owen J, Gatea v Gatea 1990 19 NSWLR 263 and GIO (NSW) v Glassock 1991 13MVR S21.

See schedules A and B respectively annexed.

2. Made an obvious error in his judgment stating that the plaintiff was a schizophrenic. See paragraph 160 of Judgment dated 20 February 2020 by the Associate.

3. Refused the plaintiffs application for acces [sic] to the Court file on 24 November 2019 – volume 1 pages 528, 529, 530, 531, 532

4. Made unknown changes to the versions of the Judgment signed by the Associate on 20 February 2020 and 5 March 2020.”

13. The complaint was accompanied by a folder of documents totalling 1058 pages. In addition to the documents I have already described, the documents included a copy of the court file in the matter before Hallen J (without exhibits and subpoenaed material) and a copy of the full transcript of that hearing.

14. On 30 March 2021, before he had received any response from the Commission, Mr Bowers filed a summons in this Court seeking orders in the nature of certiorari and mandamus for the Commission’s “constructive refusal” of his complaint.

15. On 13 April 2021, Mr Bowers was informed by the Commission, by letter, that his complaint had been dismissed pursuant to subs 20(1)(e) and (h) of the Judicial Officers Act 1986 (NSW). That letter noted that the Commission was obliged to determine whether the judicial officer had behaved in a way amounting to judicial misconduct and stated that the Commission had carefully considered the judgment, transcripts, and submissions of the plaintiff. The Commission found as follows:

“… the Commission is satisfied there was no misconduct on the part of Justice Hallen which would amount to judicial misconduct within the meaning of the Judicial Officers Act.

The Commission has found that whilst, from time to time, his Honour did ask questions in his exchanges with you, in the Commission’s opinion, they were to clarify for his Honour, answers provided by you in cross examination or to elicit further information. The Commission has also noted that although his Honour appeared at times impatient with your counsel, it was in the context of case management, which is his important responsibility. His Honour was entitled to take issue with matters he considered not relevant or were unnecessarily prolonging the proceedings.

In the Commission’s opinion his Honour dealt with the matter in a fair and judicial manner. His Honour’s rulings on evidence were open to him and do not raise a question of misconduct under the Judicial Officers Act. When his Honour noticed errors with the judgment that was given on 20 February 2020, he made amendments and identified those corrections in the 5 March 2020 judgment. In relation to your request for access to court file, the Commission has noted that his Honour dealt with the matter in a proper way by advising you to make the application in a manner so that it may be dealt with in court.

The Commission’s legislation requires it to dismiss a complaint that relates to the exercise of a judicial function that was subject to adequate appeal or review rights. The correctness or otherwise of his Honour’s understanding of fact or his interpretation of law are matters that could have been tested on appeal.

Having regard to these findings, the Commission is required to dismiss your complaint under sections 20(1)(e) and 20(1)(h) of the Judicial Officers Act.”

16. On 14 April 2021, Mr Bowers filed an amended summons seeking review of that decision due to “constructive refusal” and “unreasonable delay” but without identifying any grounds of review as required by r 59.4(c) of the UCPR which provides that the summons must state with specificity the grounds on which the relief is sought.

17. On 22 April 2021, a further amended summons was filed which in its entirety was in these terms:

“Relief Claimed

(1) An order in the nature of certiorari pursuant to s69 of the Supreme Court Act 1970 (NSW) setting aside the decision of the Defendant dated 13 April 2020, on the ground set out in the Plaintiff's email dated 21 April 2021, to the Defendant ie perversity.

(2) An order in the nature of mandamus pursuant to s69 of the Supreme Court Act 1970 (NSW) directing the Defendant to perform its duty pursuant to the Judicial Officers Act (NSW) 1986.

(3) Costs.”

18. In her affidavit of 4 May 2021, Ms Maltabarow stated that on 21 April 2021 Mr Bowers emailed her stating that he would be “proceeding with both summonses on the ground of perversity: Taveli v Minister for Immigration (1989) 86 ALR 435 at 453; affirmed (1990) 23 FCR 162”.

Judicial Officers Act

19. The Commission is constituted as a corporation and exercises the functions conferred or imposed on it under the Judicial Officers Act: s 5(1)-(2). The principal functions of the Commission relate to complaints against judicial officers.

20. Under s 15(1) of the Judicial Officers Act any person may complain to the Commission about a matter that concerns or may concern the ability or behaviour of a judicial officer. Section 15(2) deals with the circumstances in which a complaint shall be dealt with other than by summary dismissal:

15 Complaints

…

(2) The Commission shall not deal with a complaint (otherwise than to summarily dismiss it under section 20) unless it appears to the Commission that—

(a) the matter, if substantiated, could justify parliamentary consideration of the removal of the judicial officer from office, or

(b) although the matter, if substantiated, might not justify parliamentary consideration of the removal of the judicial officer from office, the matter warrants further examination on the ground that the matter may affect or may have affected the performance of judicial or official duties by the officer.

21. Section 20 deals with the circumstances in which a complaint will be summarily dismissed:

20 Summary dismissal of complaints

(1) The Commission shall summarily dismiss the complaint if it is of the opinion that, whether or not it appears to be substantiated—

(a) the complaint is one that it is required not to deal with,

(b) the complaint is frivolous, vexatious or not in good faith,

(c) the subject-matter of the complaint is trivial,

(d) the matter complained about occurred at too remote a time to justify further consideration,

(e) in relation to the matter complained about, there is or was available a satisfactory means of redress or of dealing with the complaint or the subject-matter of the complaint,

(f) without limiting paragraph (e), the complaint relates to the exercise of a judicial or other function that is or was subject to adequate appeal or review rights,

(g) the person complained about is no longer a judicial officer, or

(h) having regard to all the circumstances of the case, further consideration of the complaint would be or is unnecessary or unjustifiable.

(2) In deciding whether or not to summarily dismiss a complaint, the Commission may have regard to such matters as it thinks fit.

22. Section 21 provides that if a complaint is not summarily dismissed it must be referred to the Conduct Division or to the relevant head of jurisdiction.

Plaintiff’s submissions

23. Mr Bowers relied on his email of 21 April 2021 and his oral submissions. In his email of 21 April 2021, he relied on the ground of “perversity” and the decision of Wilcox J in Taveli v Minister for Immigration, Local Government & Ethnic Affairs (1989) 86 ALR 435 where his Honour observed at 453:

“In numerous cases the comment has been made that unreasonableness, in this sense, is a difficult ground to establish. Probably the ground has its most frequent application in cases in which the challenger can demonstrate an illogicality in, or misapplication of, the reasoning adopted by the decision-maker; so that the factual result is perverse, by the decision-maker's own criteria. Parramatta City Council v Pestell (1972) 128 CLR 305 and Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; 65 ALR 549 constitute examples of this type of case. There may be cases — although I think that they are likely to be rare — in which all of the factors germane to a particular decision point in one direction. If such a case arose, it would seem proper to brand as unreasonable a decision to the contrary effect. But ordinarily there will be factors pointing in each direction. Where that is the situation, the weight of those factors is a matter for evaluation by the decision-maker.”

24. Mr Bowers addressed each of his four complaints against Hallen J in turn.

25. The first ground alleged that Hallen J “excessively intervened” by questioning Mr Bowers during cross-examination and that his Honour made “pejorative comments” and bullied Mr Bowers’ counsel. In support of this ground Mr Bowers relied on Schedules A and B to his complaint to the Commission, said to reveal “pejorative comments, interruptions and denigrating comments”. Those schedules were extracts from the transcript of exchanges between Hallen J and either Mr Bowers’ counsel or Mr Bowers when he was in the witness box. Mr Bowers stated in his oral submissions that he relied on the whole of the transcript of the proceedings before Hallen J as context for those allegations.

26. Mr Bowers relied on Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 and compared the judicial conduct in that matter with the present matter. In that matter a trial judge in the course of a hearing referred to certain expert medical witnesses for the Government Insurance Office as the “unholy trinity” of “doctors who think you can do a full week’s work without any arms or legs”. Those comments, combined with observations in his Honour’s judgment to similar effect, were held to constitute apprehended bias (at 573-4 per Brennan, Deane and Gaudron JJ). Mr Bowers submitted that the test to be applied for judicial misconduct should be the same test as for apprehended bias, that the comments of Hallen J were comparable to those of the trial judge in Vakauta v Kelly, and that those comments would constitute judicial misconduct.

24. Mr Bowers also referred to Galea v Galea (1990) 19 NSWLR 263 in which the appellant alleged apprehended bias on the part of the trial judge due to questions posed to witnesses in cross-examination.

25. When asked during oral submissions what error was relied upon in the decision of the Judicial Commission, Mr Bowers submitted that the Commission erred in finding that there “is or was available a satisfactory means of redress or of dealing with the complaint” such as an appeal due to apprehended bias (s 20(1)(e) of the Judicial Officers Act). He submitted that “any person [could] bring an action for both bias and separately for judicial misconduct”.

26. Mr Bowers submitted that “shall” in s 20(1) did not mean “must” and that the Commission was not obliged to dismiss a complaint where there was another satisfactory means of redress. He did not rely on any authorities in support of that proposition. He submitted that “getting redress against misbehaviour by a judicial officer has nothing to do with winning a bias case. They are completely and utterly separate.”

27. Mr Bowers’ second complaint alleged “obvious error” in his Honour’s judgment, stating that he was a schizophrenic (at [160]). The relevant paragraph, and the subsequent amendment of 5 March 2020 are extracted above at [8]-[9]. When it was suggested to Mr Bowers that the judgment now correctly recorded Dr Short’s initial diagnosis and his subsequent retraction of that diagnosis Mr Bowers submitted that:

“PLAINTIFF: There are so many judgments floating around. I don't know which is which. But the first one I saw he quoted from a medical report which said schizophrenic and he didn't retract from it in his judgment. I then applied to him to get that corrected.

HER HONOUR: Yes.

PLAINTIFF: He took it out.

HER HONOUR: Sorry, are you saying that is no longer in the judgment?

PLAINTIFF: The first judgment I saw there was some extracts from medical reports and one of those extracts said I was schizophrenic. And there was nothing in the rest the judgment or any other extracts of medical reports that said I wasn't schizophrenic. So anyone reading the judgment would assume or find that I was schizophrenic. And there was absolutely no evidence of that whatsoever”.

31. When I suggested to Mr Bowers that any error had been corrected and the original judgment was no longer published online, he submitted that it had been published to the lawyers and other parties in the case. He further submitted that his Honour had intentionally recorded that he was schizophrenic and only removed it when corrected by Mr Bowers.

32. In relation to the third ground of complaint, being refused access to the court file, Mr Bowers submitted that:

“… He literally refused me access to the court file. It is an extremely serious matter involving access to justice. People died centuries ago fighting for the right of open justice when the king was still in charge. And a part of that open justice was having access to the Court file.

…

That is serious stuff. That how the system is kept honest, by people being allowed to have a copy of the file.”

33. When asked whether he had eventually been granted access to the court file, for the purposes of including it in his complaint to the Judicial Commission, Mr Bowers conceded that it had eventually been provided but submitted that this had taken “some months”.

34. Mr Bowers’ fourth ground of complaint alleged that Hallen J made “unknown changes” to the judgment between the versions of 20 February 2020 and 5 March 2020. In oral submissions Mr Bowers clarified that he only relied on the abovementioned change in relation to schizophrenia at [160]-[161] of that judgment.

Defendant’s submissions

35. In both written and oral submissions, counsel for the Commission outlined the statutory role of the Commission to establish why the further amended summons should be summarily dismissed. I have adopted some of those submissions in my consideration below.

Consideration

36. The principles in relation to summary dismissal are well established. Before a court would dismiss proceedings summarily, it must be satisfied that the proceedings are so obviously untenable that they cannot possibly succeed, manifestly groundless, or so manifestly faulty, such as not to admit of argument: General Steel Industries Inc v Commissioner for Railways(NSW) (1964) 112 CLR 125; [1964] HCA 69 at 128-129. In Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1 at 91, Dixon J observed that before summary intervention can be justified the case must be a very clear one and there must be no real question of fact or law to be determined.

37. The Commission seeks that these proceedings be summarily dismissed under r 13.4(1)(b) of the UCPR. That rule is headed “Frivolous and vexatious proceedings” and relevantly provides that:

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

38. As White JA (Meagher and Brereton JJA agreeing) observed in Ugur v Attorney General for New South Wales [2019] NSWCA 86 at [70], the purposes of r 13.4 include saving a defendant from the cost and delay of defending clearly untenable proceedings and protecting the interests of the public in “not having scarce judicial resources wasted in dealing with frivolous applications”.

39. These are proceedings for judicial review. Mr Bowers invokes this Court’s supervisory jurisdiction, regulated by s 69 of the Supreme Court Act 1970 (NSW), in relation to the Commission’s decision to summarily dismiss his complaint. The question for this Court is whether Mr Bowers’ claim is so untenable that it cannot succeed.

40. The only jurisdictional error articulated by Mr Bowers was “perversity”. The hearing proceeded on the basis that the jurisdictional error relied upon by Mr Bowers was legal unreasonableness given that he cited the passage in Taveli v Minister for Immigration, Local Government & Ethnic Affairs I have extracted above at [23]. More recently in Minister for Immigration and Citizenship v Li (2013) 249 CLR 323; [2013] HCA 18 Hayne, Kiefel and Bell JJ cited with approval judicial descriptions of legal unreasonableness including the following at [71]:

“In Secretary of State for Education and Science v Tameside Metropolitan Borough Council, Lord Diplock opined that unreasonableness would be shown where ‘no sensible authority acting with due appreciation of its responsibilities’ would have so decided.” (footnote omitted)

41. Their Honours went on to state at [76]:

“As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion ‘if upon the facts [the result] is unreasonable or plainly unjust’. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.” (footnote omitted, emphasis added)

42. The complaint could also be understood as being a claim of irrationality given that both ss 15 and 20 of the Judicial Officers Act require the Commission to be satisfied of certain matters before a complaint is summarily dismissed. A statutory requirement for a decision-maker to be "satisfied" about a matter before the decision-making power arises is a jurisdictional fact. Section 15(2) provides that the Commission shall not deal with a complaint other than by summary dismissal “unless it appears to the Commission” that subs (a) or (b) are satisfied. Similarly, s 20(1) provides that the Commission shall summarily dismiss the complaint “if it is of the opinion that” one or more of subs (a) to (h) exist.

43. In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 the High Court held that an administrative decision could be reviewed on the basis that no rational or logical decision-maker could have arrived at the same decision on the same evidence. As Crennan and Bell JJ observed at [130]:

“In the context of the Tribunal's decision here, ‘illogicality’ or ‘irrationality’ sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is ‘clearly unjust’ or ‘arbitrary’ or ‘capricious’ or ‘unreasonable’ in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.” (emphasis added)

44. Mr Bowers would need to establish that no rational or logical decision-maker could have arrived at the decision on the same evidence. Even having regard to the high level of certainty required in summary dismissal proceedings, I am satisfied that Mr Bowers’ claim is so obviously untenable that it cannot succeed for the following reasons.

45. The Commission is required by statute to summarily dismiss complaints that fall within any of the subs of s 20(1) of the Act. In the present case the Commission made the decision under the following two subsections:

(e) in relation to the matter complained about, there is or was available a satisfactory means of redress or of dealing with the complaint or the subject-matter of the complaint,

…

(h) having regard to all the circumstances of the case, further consideration of the complaint would be or is unnecessary or unjustifiable.

46. In addition, s 15 of the Judicial Officers Act precludes consideration of complaints other than by summary dismissal unless the complaint, if substantiated, could justify either parliamentary consideration of the removal of the judicial officer from office, or warrant further examination on the ground that it may affect or may have affected the performance of judicial or official duties by the officer.

47. Both ss 15 and 20 use the word “shall” which imposes a mandatory obligation on the Commission once the relevant opinion is formed: s 9(2), Interpretation Act 1987 (NSW). This statutory context means that even if there was a basis for Mr Bowers’ complaint, the Commission could not proceed with it unless it could justify parliamentary consideration of the removal of the judicial officer or warrant further examination on the grounds that it could affect his Honour’s performance of his duties, whether judicial or official. I am satisfied that the nature of Mr Bowers’ complaint required the Commission to summarily dismiss the complaint as it was incapable of satisfying either statutory criteria.

48. The Commission addressed each of Mr Bowers separate complaints in its letter. In relation to the claim of excessive intervention, “pejorative comments and bullying”, the Commission noted that it had read the relevant transcript. It was satisfied that the questions and exchanges relied upon by Mr Bowers were to clarify answers and elicit further information. It was accepted that at times his Honour appeared to be impatient with Mr Bowers’ counsel, but that was in the context of case management and his Honour was entitled to do so in the circumstances. Further, the Commission stated that in relation to the request for the file, it was appropriate for his Honour to advise Mr Bowers to make the application in a manner so that it may be dealt with in court. The Commission further noted that Mr Bowers’ request for an amendment to the judgment was made and acted upon.

49. In this Court Mr Bowers relied upon the decisions in Vakuata v Kelly and Galea v Galea. The former is far removed from the present case and in the latter case Kirby A-CJ (Priestley and Meagher JJA agreeing) held that the questioning was not sufficient to constitute apprehended bias and observed at 279:

“In judging the suggestion of a supervening apprehension of bias, it is reasonable to assume that the hypothetical lay observer would base the opinion on a fair assessment of the judge's conduct in the context of the whole of the trial. A judgment of the loss of impartiality and neutrality would not be made from a short and emotional exchange taken out of context and then weighed in isolation. … Whilst patience is a judicial virtue, so also is a concern about justice, the efficient conduct of proceedings, and the avoidance of unnecessary delay, including to other litigants awaiting their hearing.”

50. During his submissions in this Court Mr Bowers asserted that judges are not permitted to interrupt or speak over counsel or litigants. That submission was not confined to the transcript before Hallen J but extended to my attempts to get Mr Bowers to focus on certain matters. Any assertion that judges are not permitted to interrupt counsel or litigants to invite them to focus on relevant matters or to better understand their submissions is incorrect and misapprehends the Court’s obligations in relation to case management. In NSW those obligations are imposed under the Civil Procedure Act2005 (NSW) and the principles derived from decisions such as Aon Risk Services Australia Ltd v The Australian National University (2009) 239 CLR 175; [2009] HCA 27. In order to comply with these obligations it may often be necessary for judicial officers to stop counsel or litigants from making irrelevant submissions that do not assist the Court. As discussed by Matthew Groves, ‘Excessive judicial intervention’ (2021) 50 Australian Bar Review 139:

“Most judges would probably bristle if described as ‘proactive’ but most of them are, and with a number of good reasons. One is case management. It is now widely accepted that the public interest in ensuring the efficient use of court resources is a proper consideration, albeit one that cannot overwhelm the ultimate goal of attaining justice between the parties.” (footnotes omitted)

51. As for the Commission’s summary dismissal of Mr Bowers’ complaint under s 20(1)(e), it is to be noted that the words “is or was” (in relation to available means of redress) provide that the availability of alternate redress includes that which has lapsed by the effluxion of time or has been waived by Mr Bowers.

52. The evidence discloses that Mr Bowers emailed an unfiled notice of motion to Hallen J’s chambers on 18 February 2020 seeking his recusal on the basis of apprehended bias, after the hearing had concluded. On 20 February 2020, Hallen J delivered an ex tempore judgment dealing with that belated application. His Honour stated that by that time Mr Bowers had “waived any right to make, and to press, any such application”. His Honour concluded that it was not necessary to deal with the unfiled notice of motion. Furthermore, any alleged excessive intervention could have been a basis for seeking appellate relief. All of the authorities referred to by Mr Bowers concerned appeals on that basis. No appeal was ever lodged by Mr Bowers.

53. As to the claim that Hallen J had misstated the expert psychiatric evidence in his judgment, Mr Bowers had already availed himself of an appropriate means of redress in relation to that complaint in that the amendment has already been made.

54. Finally, in relation to the complaint concerning access to the court file, the evidence discloses that Mr Bowers’ counsel withdrew the first application for access to the court file. This is apparent on the transcript. Again, Mr Bowers chose not to pursue an available satisfactory means of redress. In any event, by the time of his complaint to the Commission he had been provided with the file which he was then able to provide to the Commission in support of his complaint.

55. Although a fourth complaint was made to the Commission alleging “unknown changes” to the judgment, as I have already stated above, the annotation in Caselaw refers only to changes made to [160]-[161] on 5 March 2020 and Mr Bowers did not ultimately rely on anything beyond that complaint.

56. I am satisfied that Mr Bowers’ claim that the Commission’s decision to summarily dismiss his complaint under s 20(1)(e) of the Judicial Officers Act was unreasonable is so untenable that it cannot possibly succeed.

57. As for summary dismissal of the complaint under 20(1)(h) of the Judicial Officers Act, I do not accept Mr Bowers’ submission that the Commission was required to identify “all the circumstances” relevant to that finding. That subsection is directed towards circumstances where the conduct is incapable under any circumstances of constituting judicial misconduct or affecting the performance of a judge’s duties. Given that I have already stated that the present complaint, even if proven, could not satisfy that statutory test, I am also satisfied that Mr Bowers’ claim that the Commission’s decision to summarily dismiss his complaint under s 20(1)(h) of the Judicial Officers Act was unreasonable is so untenable that it cannot possibly succeed.

ORDERS

58. I make the following orders:

1. The plaintiff’s summons is dismissed pursuant to r 13.4(1)(b), Uniform Civil Procedure Rules 2005 (NSW).

2. The plaintiff is to pay the defendant’s costs of the motion and the proceedings.

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Decision last updated: 30 July 2021