Karen Howard Mentink v John Henry Olsen

[2020] NSWSC 107

Supreme Court

New South Wales

Medium Neutral Citation:	Karen Howard Mentink v John Henry Olsen [2020] NSWSC 107
Hearing dates:	11 February 2020
Decision date:	11 February 2020
Jurisdiction:	Equity - Expedition List
Before:	Sackar J
Decision:	Ex tempore reasons given in court
Category:	Procedural and other rulings
Parties:	Karen Howard Mentink (plaintiff) John Henry Olsen (defendant)
Representation:	Counsel: D Wilson SC, (plaintiff) M McCulloch SC (defendant)   Solicitors: Bedson Legal (plaintiff) Oxley Law, (defendant)
File Number(s):	2020/23472

Judgment – ex tempore

1. HIS HONOUR: This is an application that I disqualify myself from any activity at all associated with some new proceedings brought by Ms Karen Mentink against Mr John Olsen. The statement of claim in the proceedings alleges an agreement between the current plaintiff’s now deceased mother and her then husband, the defendant in these proceedings, to the effect that mutual wills would be made and maintained as I best understand it, and the allegation which the plaintiff makes is that the defendant has, indeed, taken steps, the effect of which is to breach that arrangement.

2. The basis for the application is based upon apprehended bias, as I understand it, not actual bias, and it is said that because of my judgment in an earlier matter in which the plaintiff in the current proceedings was a defendant, and in which I made certain findings, those findings preclude me from entertaining any aspect of the proceedings that she now brings. The most immediate aspect of the proceedings which needs to be dealt with is an application by the defendant in these proceedings for expedition. I have not embarked upon that application nor have I yet heard the respective parties’ positions.

3. The question of apprehended bias can be stated as being a general principle that subject to qualifications relating to waiver or necessity a judge is disqualified if 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. The decision whether a judicial officer might not bring an impartial mind to the resolution of an issue does not involve a prediction. The question is one of possibility albeit real, not remote, and not probability.

4. Where a matter has already been decided the test requires no conclusion about what factors actually influence the outcome. However, it is important that judicial officers discharge their duty to sit and do not by acceding too readily to suggestions of appearance of bias encourage a belief that a party can, by making a disqualification application, obtain a hearing before another judge who might be more favourably disposed to his or her case.

5. Before a judge is to be disqualified there has to be a substantial basis for the conclusion of apprehended bias and the apprehension must be firmly established. The issue is not whether it would be better for another judge to hear the case, but whether the judge appointed to hear the matter might not bring an impartial and unprejudiced mind to its resolution.

6. The authorities make it abundantly plain that in considering whether a reasonable apprehension of bias has been established, it is necessary, first, to identify the facts, matters and circumstances by which it is said the judge might decide a case other than on its merits; and, secondly, to articulate the logical connection between those facts, matters and circumstances and the apprehended deviation from the course of deciding the case on its merits.

7. The hypothetical fair‑minded observer is a layperson informed as to the relevant facts of the case and sufficiently knowledgeable to bring a rational and a reasonable assessment to bear on the question of whether the judge might be biased and having a basic knowledge of the nature of the practice of the Bar, including matters concerning relationships between cases and judges and barristers and their clients.

8. It is important, therefore, to identify precisely what it is that currently is said to lead me to disqualify myself. True it is I have given a previous judgment which reflects, on one view, adversely on the plaintiff in the current proceedings, but what is before the Court at the moment is no more and no less than an interlocutory application for the determination first as to whether these proceedings should be expedited or not; and, secondly, as would follow in this Court and in this list, matters of case management.

9. I can readily understand that if I were sitting today to fix the matter for hearing on the merits, an argument may well substantially succeed as to why I should not hear and determine the ultimate matter. That will turn upon the nature of the issues to be decided and whether or not the proposed plaintiff in this case’s credit is going to be challenged. At this stage, according to Mr Wilson who appears for the plaintiff, her credit may well be under challenge because of conversations she alleges took place between herself and the defendant. That may well be the case and if there are such challenges and if credit issues are in issue, cases such as Spedley, would likely suggest that I should not hear the ultimate matter in dispute between the parties.

10. On interlocutory matters it is, in my view, presently inconceivable that a layperson could regard any judge sitting in such matters as biased in the relevant sense such that an application for expedition, which is not based on a consideration of the merits of the case, and other decisions concerning case management, would likely fall under the rubric of apprehended bias. Brereton J took this view in the matter of British American Tobacco v Peter Gordon and Ors reported on 22 February 2007.

11. His Honour was asked to disqualify himself in that case by reason of his previous association with one of the litigants when he was counsel. This is a different set of circumstances entirely, but nonetheless his Honour in a lengthy and as usual erudite decision considered the distinction, which arises in many cases, if not most, between the hearing of a case on the merits and an interlocutory application as here. It is by no means clear to me, nor has it been exposed by Mr Wilson in argument, as to why the hearing of an interlocutory application as to whether this case should or should not be expedited; and, secondly, what, if any, case management decisions should be made could possibly fall under the heading of apprehended bias.

12. I understand entirely what may follow in due course in terms of the hearing of the merits and at least tentatively, perhaps not needing any further argument - the moment it becomes clear that the plaintiff’s credit is in issue Spedley alone would highly likely disentitle me from hearing the case, however, the current application is dismissed.

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Decision last updated: 20 February 2020