Jorgensen v Cadman (No 2)
[2022] ACTSC 320
•18 November 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Jorgensen v Cadman (No 2) |
Citation: | [2022] ACTSC 320 |
Hearing Date: | 18 November 2022 |
DecisionDate: | 18 November 2022 |
Before: | McCallum CJ |
Decision: | Recusal application refused |
Catchwords: | COURTS AND JUDICIAL SYSTEM — JURISDICTION — Apprehended bias — Application for recusal — Conduct of hearing — Where judge made remarks to defendants’ counsel during hearing as to characterisation of grounds for relief sought and concerning form of plaintiffs’ pleading — Whether the fair-minded lay observer might reasonably have apprehended that the judge did not bring an impartial mind to the resolution of the question for determination |
Legislation Cited: | Australian Capital Territory (Self-Government) Act 1988 (Cth), s 48A Court Procedures Act 2004 (ACT), s 5A Supreme Court Act 1933 (ACT), s 20 |
Cases Cited: | Charisteas v Charisteas [2021] HCA 29; 393 ALR 389 Ebner v the Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 |
Texts Cited: | Australian Law Reform Commission, Without Fear or Favour: Judicial Impartiality and the Law on Bias, (December 2021, Report 138) |
Parties: | Alan Bradley Jorgensen as Trustee for Jorgensen Family Trust (First Plaintiff) Jesse James Jorgensen by his litigation guardian Alan Bradley Jorgensen (Second Plaintiff) Justin James Cadman (First Defendant) Miller Harris Lawyers (Second Defendant) Jeneve Frizzo (Third Defendant) Brian Jorgensen (Fourth Defendant) |
Representation: | Counsel Self-represented (Plaintiff) D Ager (Second and Fourth Defendant) |
| Solicitors Self-represented (Plaintiff) Baker Deane & Nutt (Second and Fourth Defendant) | |
File Number: | SC 445 of 2021 |
McCallum CJ:
In these proceedings Alan Jorgensen and his son, Jesse Jorgensen, sue four parties including Mr Jorgensen’s brother, Brian Jorgensen. The proceedings were listed today for the hearing of an application brought by the second and fourth defendants, Miller Harris Lawyers and Mr Brian Jorgensen respectively, to have the originating process set aside and, in the alternative, for summary judgment.
During the course of the hearing of the application, Mr Jorgensen has made an application that I recuse myself. I decline to do so for the following reasons.
The recusal application was based on remarks I made to counsel for the second and fourth defendants during his outline of the evidence and the issues raised by the substantive application. My remarks were directed to two matters.
In order to explain the remarks, it is necessary to give some context. The evidence relied upon by the second and fourth defendants in support of the application includes judgments in other proceedings brought by the first plaintiff, Alan Jorgensen (or entities associated with him) in other jurisdictions. In particular, the evidence includes a judgment in the Supreme Court of Queensland dated 1 April 2015 ordering the plaintiffs in those proceedings to pay $35,000 by way of security for costs; a separate judgment in the Supreme Court of Queensland dated 5 September 2016 in which a different judge of the Supreme Court of Queensland made an order under the vexatious litigants legislation in that jurisdiction; and thirdly, a judgment dated 11 March 2021 given by Logan J of the Federal Court also making a vexatious proceedings order under the legislation that applies in the federal jurisdiction
The present application, however, was presented as being confined to an argument that the originating process should be set aside because the plaintiffs’ claim has no connection with this jurisdiction. Having learned the basis on which the argument was put, I made an observation that the evidence relied upon to support it sounded more like an abuse of process argument than an argument based on the pure legal question of this Territory’s jurisdiction. That was the first remark that triggered the bias application. [Since giving this judgment ex tempore, I have received the transcript of the hearing. The first remark complained of by Mr Jorgenson is set out in part 1 of a schedule to this judgment].
Secondly, I made an observation based on my reading of the originating application in these proceedings that there might also have been an application to have that pleading struck out as embarrassing. [The second remark is set out in part 2 of the schedule].
During the course of his submissions in opposition to the relief sought (and before the recusal application was made), Mr Alan Jorgensen made repeated remarks to the effect that I ought not to have assisted the other side with those two observations.
Ultimately, I indicated to him that he should either make an application for me to recuse myself or else desist from making those accusations. Mr Alan Jorgensen, in response to that indication, made the application that I recuse myself.
The principles in relation to such an application are well known. The present application is based on my conduct of the proceedings. The question in such a case 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: see Ebner v the Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6]. That passage of the judgment in Ebner was recently endorsed in the decision of the High Court in Charisteas v Charisteas [2021] HCA 29; 393 ALR 389 at [11]. The fair-minded lay observer is taken to have an understanding of the factual and legal questions before the Court.
In the present case, the first remark I made concerning the nature of the defendant’s application as one sounding in the legal principle of abuse of process rather than the more narrow question of geographical jurisdiction was directed to the fact that the evidence outlined by counsel showed that Mr Alan Jorgensen has sought to agitate the issues in the present proceedings in other jurisdictions and in different ways has been prohibited from doing so: first, by his acknowledged failure to comply with an order to provide security for costs, and then by the two vexatious proceedings orders in the other jurisdictions. In my assessment, the hypothetical observer would understand the remarks to have been directed to a question of legal principle rather than to offering any assistance to the defendants in their application.
The second remark was unprompted by anything said on behalf of the defendants but was based on my own reading of the amended originating process. It may be seen at a glance that that document requires refinement and is, in the legal sense, embarrassing. Mr Jorgensen acknowledged that the previous judicial officer before whom these proceedings have come, McWilliam AsJ, had made the same observation to him and that, as I understood it, he had acknowledged that he would need to refine the relief sought and the basis for it.
In the circumstances, I do not think the reasonable observer would have apprehended either remark to be directed to providing assistance to the defendants. Rather, the remarks would be understood to fall within the category of exchanges between the judicial officer and those appearing in the proceedings to distil the issues to be determined. I should note that, after addressing me about the application, Mr Jorgensen contended that I should adjourn the matter so as to give him an opportunity to prepare and take legal advice to present the bias application more fully.
[At this point in the oral judgment Mr Jorgensen, who appeared by AVL from Bali, indicated that his internet had dropped out. It was accordingly necessary to attempt to repeat what I had said, as follows]
The second remark about the form of the pleading was not anything in response to what the defendants had put this morning but was based on my own reading before coming to Court of the amended originating process. It is plain on a consideration of that document that it is embarrassing, in the legal sense, in that it tends to obscure rather than distil the real issues in the proceedings.
I understood Mr Jorgensen to acknowledge that McWilliam AsJ, the judicial officer before whom these proceedings have come at an earlier point, to have made a similar remark and I understood Mr Jorgensen to have accepted that the relief sought needed to be distilled. In its present form the relief sought is more in the nature of a narrative of submissions than in the form of any distillation of a legal issue.
I do not think the hypothetical observer, being appropriately informed as to the legal and factual issues in dispute in the proceedings, would apprehend any bias in the remarks I made. For completeness I note that Mr Jorgensen, after addressing me about the bias application, submitted that I should adjourn the proceedings to afford him an opportunity to take advice and to prepare to run the bias application.
I do not think that is appropriate. The Court, while it must always be astute to afford a fair hearing to the parties, must also be astute not to permit applications of this kind to stymie the expeditious resolution of the proceedings. Mr Jorgensen had a full opportunity to address the matters that concerned him during the course of this morning’s proceeding. They were fresh in everyone’s minds and, in my view, the appropriate course was to determine the recusal application immediately.
Separately, I note that Mr Jorgensen submitted that it is not appropriate for a judicial officer to determine a bias application made against him or herself. That is a point that has been discussed in the report recently published by the Australian Law Reform Commission on judicial impartiality: see Australian Law Reform Commission, Without Fear or Favour: Judicial Impartiality and the Law on Bias, (December 2021, Report 138). Indeed, one of the recommendations of the report is that courts, in some instances, adopt a process whereby any bias application is ordinarily referred to another judicial officer for determination.
Conversely, however, the Court has a duty to determine proceedings in accordance with the main purpose of the civil procedure provisions stated in s 5A of the Court Procedures Act 2004 (ACT). In this instance I am not persuaded that it would have been appropriate to refer the application to any other judicial officer. Rather, I take the view that it is my duty to determine the application and not to allow it to delay these proceedings.
For those reasons the recusal application is refused.
| I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: |
SCHEDULE
First remark:
(after a reference by counsel to s 48A of the Australian Capital Territory (Self-Government) Act 1988 (Cth) and s 20 of the Supreme Court Act 1933 (ACT)):
MR AGER: Yes, they’re largely the same in terms. Mr Jorgensen’s application in respect of the declarations he’s seeking for the alleged breaches of fiduciary duties – two things, firstly, there’s no connection to the ACT. The allegations all pertain to conduct – or allegations of conduct in Queensland. So, the court doesn’t have jurisdiction on that basis.
But further to that it is also the subject of an application in Queensland, which has been stayed. It was stayed on the basis that an order for security of costs was made and not complied with.
HER HONOUR: That sounds more like an argument about abuse of process than a question of jurisdiction. Is that what you’re putting?
MR AGER: I’m putting that it is a matter which is being heard by a court in another jurisdiction or the appropriate jurisdiction.
HER HONOUR: Yes, but I think the proper juridical characterisation of a proceeding commenced in another jurisdiction in respect of the same subject matter as a stayed proceeding in the state of Queensland is not that the second court doesn’t have jurisdiction but that the second proceeding is an abuse of process. Do you - - -
MR AGER: I accept that, your Honour, thank you.]
Second remark:
HER HONOUR: All right. Well, I think your position is very clear, Mr Ager. I also would respectfully suggest that your application is quite modest because, as I say, I think you could also argue in the circumstances that the maintenance of these proceedings is an abuse of process. And it would also have been a respectable basis for seeking to have the pleadings struck out on the basis that it’s embarrassing because you can’t discern the cause of action from the way it is pleaded and it contains extraneous material.
But you confine your application to the matter of the Territory’s jurisdiction to determine a dispute that appears to be wholly based in Queensland. And the fact that these proceedings appear to be an attempt to circumvent those two vexatious proceedings audits.
MR AGER: Thank you, your Honour. That was the simplest way of putting the application.
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