Jorgensen v Shorten

[2016] NSWSC 1631

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Jorgensen v Shorten [2016] NSWSC 1631
Hearing dates:	17 November 2016
Decision date:	17 November 2016
Jurisdiction:	Equity
Before:	Stevenson J
Decision:	Application for recusal refused
Catchwords:	COURTS AND JUDGES – apprehended bias – where judge had acted for one of the parties when at the bar – where relative of judge currently employed by that party – whether fair minded observer might think judge might not bring impartial mind to resolution of issues between the parties
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Attorney General of New South Wales v Lucy Klewer [2003] NSWCA 295 Australian National Industries Ltd v Spedley Industries Ltd (In Liq) (1992) 26 NSWLR 411 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; HCA 63 Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45 Johnson v Johnson (2000) 201 CLR 488; HCA 48 Re JRL; Ex parte CJL (1986) 161 CLR 342 Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78; HCA 31
Category:	Procedural and other rulings
Parties:	Alan Bradley Jorgensen (First Plaintiff) (In Person) Teksid Pty Ltd (Second Plaintiff) Jim’s Water Tanks Pty Ltd (Third Plaintiff) William Shorten (First Defendant) Kelvin Thomson (Second Defendant) Australian Securities and Investments Commission (Third Defendant) Glen Cook (Fourth Defendant) Graham Ashworth (Fifth Defendant)
Representation:	Counsel: J Clarke SC (Third, Fourth and Fifth Defendants)   Solicitors: Arnold Bloch Leibler (First and Second Defendants) Ashurst Lawyers (Third, Fourth and Fifth Defendants)
File Number(s):	SC 2016/198965

EX TEMPORE Judgment (Revised)

1. The plaintiffs, Mr Jorgensen and two companies with which he is associated, commenced these proceedings by a statement of claim filed on 30 June 2016.

2. Mr Jorgensen is acting for himself and has today sought and been granted leave to appear for the two companies.

3. There are five defendants. The first is Mr William Shorten (who is evidently sued in his capacity as a former officer of the Australian Workers Union). The second is Mr Kelvin Thomson (a former member of the Australian Parliament). The third is the Australian Securities and Investments Commission. The fourth and fifth defendants are two individuals (Mr Glen Cook and Mr Graham Ashworth), who were, it is alleged, investigating officers employed by ASIC at the relevant time.

4. The statement of claim describes the "essence of the claim" as being to recover "damages from a group of people who conspired against [Mr Jorgensen] to stop him completing a friendly takeover of a large die casting company called Castalloy Ltd in 1999".

5. By separate notices of motion, Mr Shorten and Mr Thomson on the one hand, and what I will describe as the ASIC defendants on the other, move to have the proceedings dismissed pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 13.4 or struck out pursuant to UCPR r 14.28.

6. Those motions are fixed for hearing before me next Thursday 24 November 2016.

7. Mr Jorgensen has known since at least 25 October 2016 that I will be the judge to hear the defendants' applications.

8. On 14 November 2016, Mr Jorgensen sent an email to the Registrar stating that he had noticed that at my swearing in (which was on 1 February 2012, almost five years ago), it had been mentioned that when I was at the Bar I "frequently worked with regulators such as [ASIC]".

9. In his email Mr Jorgensen said:

“I think it is grossly unfair for the Plaintiffs to be continually worrying about the fact that Justice Stevenson was retained by ASIC for many years, to lead its legal team on many occasions, and likely where ASIC have paid him millions of dollars in counsel fees. Importantly, this is in addition to him, getting to know the ASIC hierarchy personally...

In the end, it is obvious to all, that no party should have to worry about just how well the judge knows the other side and how disciplined he is at shutting out of his mind, past relationships.”

10. Accordingly, Mr Jorgensen requested that the Registrar "simply allocate another judge" to hear the motions.

11. The Registrar replied on the same day stating:

“If you felt that the Judge might be biased you would need to make an application to the Judge to recuse himself."

12. The next day, 15 November 2016, Mr Jorgensen replied in effect repeating his request that another judge be allocated to hear the case.

13. I took those emails to be an application by Mr Jorgensen that I recuse myself from hearing the defendants' motions and listed the matter for argument today.

14. It is true that, when at the Bar, I appeared for ASIC on a number of occasions, although to the best of my recollection, not in my last few years at the Bar.

15. I also appeared against ASIC in at least one (very substantial) matter when I first took silk in 2003.

16. I would imagine that many, if not most, judges of this Division are in the same position.

17. That is the nature of the Bar; barristers are independent professional sole practitioners whose first duty is to the Court and the administration of justice. A barrister's duty is to provide professional services unaffected by his or her personal interests. Barristers must not refuse briefs except on proper professional grounds. My involvement with ASIC was purely in that capacity, namely, as a professional retained to appear in particular cases.

18. I left the Bar at the end of 2011, almost five years ago, and, as I have mentioned, I was sworn in as a judge of the Court on 1 February 2012.

19. I have had no connection or contact with ASIC since then and, so far as I can recall, I have not heard any cases involving ASIC since being at the Court.

20. I have also disclosed to the parties that my stepbrother works at ASIC. I do not know precisely what role he currently plays at ASIC. I have no reason to think he has any involvement in this case.

21. As emerges from Mr Jorgensen's emails, and his submissions before me, his concern is that, in these circumstances, and particularly because, as he sees it, I have "closely worked with, and been paid lots of money by ASIC, over a number of years" I might feel some "loyalty" to ASIC or feel "aligned" with ASIC and thereby not bring an impartial mind to bear on the forthcoming applications.

22. In fact, I feel no such loyalty and am confident that I will bring the same impartial mind to bear on this case, as in the hundreds of other cases I have heard since coming to the Court.

23. Of course, the test is not what I think; nor is the test what Mr Jorgensen thinks.

24. The test of determining whether a judge should disqualify himself or herself by reason of apprehended 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 decide”: Johnson v Johnson (2000) 201 CLR 488; HCA 48 at [11]; affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; HCA 63.

25. An indication by a party that he, she or it wishes a judge to disqualify himself or herself is not in itself a proper ground for the judge to recuse: Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45.

26. Judges are required to discharge their professional duties unless disqualified by law. The cases show that judges should not accede too readily to applications for disqualification, as otherwise litigants may succeed in effectively influencing the choice of a judge in their own cause (although I do not suggest that that is Mr Jorgensen's motivation here): see Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; Attorney General of New South Wales v Lucy Klewer [2003] NSWCA 295; Ebner v Official Trustee at [19] – [23].

27. The fact that a judge has acted in a professional capacity in another matter or matters for a party will not normally provide a ground for disqualification: Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78; HCA 31 and Australian National Industries Ltd v Spedley Securities Ltd(In Liq) (1992) 26 NSWLR 411.

28. I have given the matter careful consideration, but do not see how a fair minded observer could, let alone might, apprehend the fact that I appeared for ASIC during my time at the Bar might cause me to approach these forthcoming applications otherwise than impartially. The connection with ASIC was only ever in a professional capacity and is now many years ago.

29. As I have said, my stepbrother is employed by ASIC. I appreciate that this adds a further element to the equation and that this is a matter that, subjectively, might be a matter of concern to Mr Jorgensen. However, I have concluded that, far from a fair minded observer possibly concluding ("might possibly apprehend") that I thereby might not bring an impartial mind to bear in this matter, any fair minded lay observer would confidently conclude that this fact would not cause me to act otherwise than impartially.

30. I decline to recuse myself from hearing the applications.

31. I will reserve the costs of today.

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Amendments

23 November 2016 - Coversheet, [3] and [5] - second defendant's name corrected

Decision last updated: 23 November 2016