Kostov v Director of Public Prosecutions (NSW) (No 2)

[2020] NSWCA 94

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Kostov v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 94

Hearing dates:

On the papers

Date of orders:

18 May 2020

Decision date:

18 May 2020

Before:

Bell P

Decision:

1.   Application for recusal refused.

 

2.   Leave granted to the Attorney General for New South Wales to be joined as third respondent to the proceedings.

3. Declare that the Summons seeking judicial review filed on 6 March 2020 and the proceedings stand dismissed pursuant to the Vexatious Proceedings Act 2008 (NSW) s 13(3).

Catchwords:

PROCEDURE – bias – application for disqualification for apprehended bias – where judge formerly retained by a particular law firm on behalf of a particular client – where client and law firm alleged to be involved in procurement of vexatious proceedings order – where no basis for allegation made out – consideration of principles concerning apparent bias in circumstances where judge formerly acted for a particular client or was retained by a particular law firm.

 

PROCEDURE – Vexatious Proceedings Act 2008 (NSW) – whether leave required prior to commencement of proceedings for judicial review – consequence of failing to obtain leave.

  VEXATIOUS PROCEEDINGS – party subject to earlier vexatious proceedings order commencing judicial review proceedings in Court of Appeal – where leave to bring proceedings had not first been obtained – consequences of failure to obtain leave – proceedings taken to have been dismissed.

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW) s 11A(1)
Crimes Act 1900 (NSW) s 254(b)(ii)
Supreme Court Act 1970 (NSW) s 69
Vexatious Proceedings Act 2008 (NSW) ss 8(7), 13(1), (2) and (3)

Cases Cited:

Aussie Airlines Pty Limited v Australian Airlines Pty Limited & Qantas Airlines Limited (1996) 65 FCR 215; (1996) 135 ALR 753
Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411
Bakarich v Commonwealth Bank of Australia [2010] NSWCA 314
British American Tobacco Australia Ltd v Peter Gordon [2007] NSWSC 109
Collier v State of New South Wales [2014] NSWSC 1073
De Varda v Austin [2018] NSWCA 263
Duke Group (in liq) v Pilmer [2001] SASC 215
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Farkas v Thomason [2020] WASC 67
GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Limited [2013] FCAFC 150
Hamod v State of New South Wales (No 11) [2008] NSWSC 967
John Fairfax Publications Pty Ltd v Maurice Kriss [2007] NSWCA 79
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Klewer v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 69
Kostov v Director of Public Prosecutions (NSW) [2020] NSWCA 73
Kostov v State of New South Wales (No 2) [2019] NSWCA 66
Kostov v State of New South Wales (Vexatious Proceedings) [2018] NSWSC 1794
Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17
Lunn v The Commissioner for Public Employment [2009] NSWSC 19
Markan v Bar Association of Queensland (No 1) [2013] QSC 108
Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Potier v State of New South Wales [2014] NSWCA 359
Quigley (A Practitioner) v The Legal Practitioners Complaints Committee [2003] WASCA 228
Raybos Australia Ltd v Tectran Pty Ltd (1986) 6 NSWLR 272
Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39
Re Polites; Ex parte The Hoyts Corporation Pty Ltd (1991) 173 CLR 78; [1991] HCA 25
S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358; (1998) 91 FLR 175
Western Australia v Watson [1990] WAR 248

Category:

Consequential orders (other than Costs)

Parties:

Adriana Kostov (Applicant)
Director of Public Prosecutions (NSW)
(First Respondent)
District Court of New South Wales
(Second Respondent)
Attorney General for New South Wales
(Third Respondent)

Representation:

Counsel:
C O Gleeson (First Respondent)
J Emmett (Third Respondent)

  Solicitors:
Adriana Kostov (Self-represented)
H Langley, Office of the Director of Public Prosecutions (First Respondent)
A Sapienza, Crown Solicitor’s Office
(Submitting appearance) (Second Respondent)
Crown Solicitor’s Office (Third Respondent)

File Number(s):

2020/00073409

Publication restriction:

N/A

HEADNOTE

[This headnote is not to be read as part of the judgment]

In November 2018, Ms Adriana Kostov (Ms Kostov) was made the subject of a vexatious proceedings order: Kostov v State of New South Wales (Vexatious Proceedings) [2018] NSWSC 1794.

On 13 August 2019, Ms Kostov was convicted in the Local Court of New South Wales of two offences of using a false document to obtain a financial advantage, contrary to s 254(b)(ii) of the Crimes Act 1900 (NSW). An application filed in the Local Court for the annulment of her convictions was dismissed, with Ms Kostov lodging an appeal in the District Court of New South Wales appealing from the dismissal of the annulment application. On 11 December 2019, Hunt DCJ struck out the appeal from the annulment decision of the Local Court under s 11A(1) of the Crimes (Appeal and Review) Act 2001 (NSW), on the basis that the Court had no jurisdiction to hear it (the District Court decision).

On 6 March 2020, Ms Kostov filed a Summons seeking judicial review of the District Court decision, pursuant to s 69 of the Supreme Court Act 1970 (NSW).

The Summons for judicial review of the District Court decision was listed for directions before Bell P. His Honour made directions that both parties were to file and exchange written submissions on the question of whether or not Ms Kostov required leave prior to commencing judicial review proceedings, and what consequences, if any, flowed from Ms Kostov’s failure to obtain such leave.

A day after these directions were made, however, Ms Kostov sent an email to the Registrar of the Supreme Court and to Bell P’s Associate, requesting that Bell P recuse himself from all matters concerning Ms Kostov. Ms Kostov refused to make any submissions in relation to the directions made by Bell P until her request for his Honour’s recusal was considered.

The basis of Ms Kostov’s informal request for recusal was that up until September 2018, Fagan J (who had made the 2018 vexatious proceedings order) had a tipstaff or associate who subsequently commenced work with a particular law firm (the law firm), and that in July 2018, a client of the law firm (the client) had allegedly indicated an intention to apply to have Ms Kostov found a vexatious litigant. Prior to Bell P’s appointment, Bell P been retained by the law firm to act for the client, although not in relation to Ms Kostov.

The issues before the Court were:

1. Whether Ms Kostov’s request for Bell P to recuse himself for apprehended bias should be granted.

2. Whether Ms Kostov, being the subject of a vexatious proceedings order, was required to obtain leave to commence judicial review proceedings.

3. What were the consequences, if any, of Ms Kostov failing to seek leave prior to commencing judicial review proceedings.

The Court held:

1. No basis was made out for any recusal.

2. The fact that a judge may have formerly been retained from time to time by a particular law firm and for a particular client is not, in and of itself, a basis for recusal: [41]-[48].

Western Australia v Watson [1990] WAR 248; Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39; Re Polites; Ex parte The Hoyts Corporation Pty Ltd (1991) 173 CLR 78; [1991] HCA 25; S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd(1988) 12 NSWLR 358; British American Tobacco Australia Ltd v Peter Gordon [2007] NSWSC 109; Bakarich v Commonwealth Bank of Australia [2010] NSWCA 314, considered.

3. Ms Kostov was required to obtain leave to bring judicial review proceedings in this Court by reason of the fact that she was and remains the subject of a vexatious proceedings order: [67]-[68].

Klewer v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 69, applied.

4. By reason of her failure to obtain leave and by operation of s 13(3) of the Vexatious Proceedings Act 2008 (NSW), Ms Kostov’s judicial review proceedings were taken to have been dismissed: [69], [71].

De Varda v Austin [2018] NSWCA 263, applied.

Judgment

1. BELL P: On 13 August 2019, Ms Adriana Kostov (Ms Kostov) was convicted in the Local Court of New South Wales by Milledge LCM in relation to two offences of using a false document to obtain a financial advantage, contrary to s 254(b)(ii) of the Crimes Act 1900 (NSW).

2. On 30 October 2019, Ms Kostov filed an application in the Local Court for the annulment of her convictions. That application was dismissed on 1 November 2019.

3. On 5 December 2019, Ms Kostov lodged an appeal in the District Court of New South Wales appealing from the dismissal of the annulment application.

4. On 11 December 2019, Hunt DCJ struck out the appeal from the annulment decision of the Local Court under s 11A(1) of the Crimes (Appeal and Review) Act 2001 (NSW) on the basis that the Court had no jurisdiction to hear it (the District Court decision).

5. On 6 March 2020, Ms Kostov filed a Summons seeking judicial review of the District Court decision pursuant to s 69 of the Supreme Court Act 1970 (NSW).

6. Pausing there, it is necessary to note that, on 19 November 2018, in Kostov v State of New South Wales (Vexatious Proceedings) [2018] NSWSC 1794, Fagan J made the following orders (the vexatious proceedings order) pursuant to s 8(7) of the Vexatious Proceedings Act 2008 (NSW):

“(1)   Adriana Kostov is prohibited from instituting proceedings in New South Wales. 

(2)   The Registry of the Supreme Court is not to accept for filing, either online or in person, any document from Adriana Kostov in any proceeding which has already been commenced by her in any Division of the Supreme Court as at the date of these orders. 

(3) Any application pursuant to s 9 of the Vexatious Proceedings Act to vary these orders, to permit Adriana Kostov to file a document in a proceeding which has been commenced prior to this date, is to be made by notice of motion in the affected proceeding, supported by evidence and/or argument in writing. Any such application with respect to Common Law Division proceedings is to be referred to the Common Law Division Civil List Judge.

(4) Any application by Adriana Kostov pursuant to s 14 of the Vexatious Proceedings Act 2008 for leave to institute fresh proceedings in the Common Law Division of this Court is upon filing to be referred to the Common Law Division Civil List Judge, and any application for leave to institute fresh proceedings in the Equity Division is to be referred to the Chief Judge in Equity”.

7. Ms Kostov sought and successfully obtained a grant of leave to appeal from the vexatious proceedings order on 27 March 2019. This was notwithstanding the fact that she had sought to adjourn the application: see Kostov v State of New South Wales (No 2) [2019] NSWCA 66. Notwithstanding the grant of leave to appeal, Ms Kostov discontinued her appeal. She therefore remains subject to the vexatious proceedings order, and the consequences that flow from such an order under the Vexatious Proceedings Act.

8. Ms Kostov’s summons for judicial review of the District Court decision was listed for directions before me on 20 April 2020. I made directions on that day and, on 21 April 2020, I published a short judgment setting out the reasons for those directions: Kostov v Director of Public Prosecutions (NSW) [2020] NSWCA 73.

9. The directions made on 20 April 2020 were relevantly as follows:

“… [B]oth parties to file and exchange by 4.00pm on Monday 27 April 2020, written submissions on the question of:

(i) whether or not leave pursuant to the Vexatious Proceedings Act 2008 (NSW) was required to commence judicial review proceedings; and

(ii)   what consequence, if any, flows from the failure to obtain such leave.

… [A]ny submissions in reply to be filed and served in reply by 4.00pm on Monday 4 May 2020.”

10. The background to those directions was the fact that, as recorded in my reasons of 21 April 2020 and as noted at [6] above, on 19 November 2018, Ms Kostov was (and remains) the subject of the vexatious proceedings order made by Fagan J.

11. As also recorded in my reasons of 21 April 2020, on 20 April 2020 I raised with the parties and Ms Kostov, in particular, the issue of whether or not, as a result of the vexatious proceedings order, she was required to have obtained leave under the Vexatious Proceedings Act, prior to the institution of the current judicial review proceedings in this Court, it being common ground that she had neither sought nor attained such leave. I drew attention in this regard to s 13 of that Act, with subsections (1)-(3) providing as follows:

“(1)   If an authorised court makes a vexatious proceedings order prohibiting a person from instituting proceedings:

(a)   the person may not institute proceedings of the kind to which the order relates without the leave of an appropriate authorised court under section 16, and

(b)   another person may not, acting in concert with the person, institute proceedings without the leave of an appropriate authorised court under section 16.

(2)   If proceedings are instituted in contravention of subsection (1), the proceedings are stayed until they are dismissed (or taken to be dismissed) under this section.

(3)   Any proceedings that are stayed by subsection (2) are taken to be dismissed by the court or tribunal in which they were instituted on the expiry of the period of 28 days after the proceedings were first instituted, unless the proceedings are sooner dismissed under subsection (4).”

12. Given the terms of s 13 of the Vexatious Proceedings Act, it seemed to me necessary, as an essential first step, prior to making any other directions for the hearing of the summons for judicial review, that the parties be given an opportunity to make submissions by reference to s 13 of the Vexatious Proceedings Act as to whether or not Ms Kostov required leave pursuant to that Act prior to the institution of the judicial review proceedings and what the consequences, if any, of her failure to obtain that leave might be.

13. There would be no basis to make directions in relation to the judicial review proceedings if those proceedings were taken to have been dismissed by virtue of s 13 of the Vexatious Proceedings Act.

14. Ms Kostov participated by telephone in the directions hearing on 20 April 2020 and, although she dropped out of the hearing at one point, she was on line at the time when I explained the directions and the reasons for the directions I had made. She did not object to the timetable I proposed. Indeed, she indicated that she would only need a couple of days in order to make her submissions. Notwithstanding that, I afforded her 7 days in which to make submissions and 7 days in which to reply to any submissions made on behalf of the Director of Public Prosecutions (NSW).

15. On the morning of 21 April 2020, the day after these directions were made, Ms Kostov sent an email to the Registrar of the Supreme Court and to my Associate requesting me to recuse myself from all matters concerning Ms Kostov. She had not raised any such objection during the directions hearing on 20 April 2020.

16. The basis from Ms Kostov’s request that I recuse myself, as best I could discern it from her email, was as follows:

(i)   up until September 2018, Fagan J had a tipstaff or associate who subsequently commenced work with a particular law firm (the law firm);

(ii)   in July 2018, a client of the law firm (the client) had allegedly indicated an intention to apply shortly to have Ms Kostov found a vexatious litigant (Ms Kostov supplied in her email a purported extract of an email but this did not indicate to where or to whom it was sent or directed, but the inference was that it was to the law firm);

(iii)   the vexatious proceedings order was made in November 2018; and

(iv)   prior to my appointment, I had been retained by the law firm to act for the client (although not in relation to Ms Kostov or any application for a vexatious proceedings order).

17. Ms Kostov completed this email with the following statement:

“I am therefore obliged to ask His Honour, to recuse himself from this matter.

Can you please advise if such will be listed.

Please note, that until the issue of President Bell recusing himself is dealt with, it is not proper for myself to make any further Submissions on this matter.

Thankyou”.

18. Later on 21 April 2020, after a copy of my reasons for the directions made the previous day had been sent to the parties, Ms Kostov sent a further email to my Associate relevantly acknowledging receipt of the reasons. Her email response included the following:

“Thank you for this.

Please note however, I cannot proceed to make any further submissions on this matter, in line with orders made, until my request that His Honour recuse himself, for reasons given in email this morning, is considered.

I am of the view, rightly or wrongly, that His Honour is too highly conflicted, through this personal relationship to [the law firm], to determine this matter.

I was not aware, of His Honour's relationship with [the law firm], at the time my Leave matter was heard in March 2019.

I trust His Honour understands and respects why I have asked him to recuse in these circumstances.

Should His Honour decide not to recuse, I would ask this Court to refer this matter to the High Court for determination, which may in fact, be appropriate in all the circumstances.

I will await the Court's direction on this issue.”

19. On the morning of 23 April 2020, I instructed my Associate to reply to Ms Kostov’s correspondence, with a copy to the Solicitor for Public Prosecutions (who appeared for the Director of Public Prosecutions (NSW) as respondent in the judicial review proceedings) in the following terms:

“Dear Ms Kostov,

I refer to your recent email communications sent to these chambers. The President has asked me to respond on his behalf as follows.

On 20 April 2020, the Court made orders with which it expects compliance.

His Honour does not currently see any basis on which he should recuse himself from hearing this matter but if you wish to pursue a recusal application, you are directed to file any submissions in support of that application by Monday 27 April 2020 together with the submissions the subject of the directions of 20 April 2020. The Director of Public Prosecutions will be entitled but is not obliged to file any submissions in response to your recusal submissions by 4 May 2020.

His Honour will consider any submissions in support of recusal and if he considers a case for recusal is made out, he will refer the question of whether or not you required leave to commence the judicial review proceedings and the consequences of not obtaining leave, if it was required, to another judge of appeal.

If, however, he does not consider it necessary to recuse himself, he will publish the reasons for that conclusion together with his judgment in relation to the leave question after the receipt of all submissions.

Finally, the Court reminds you, as you have been reminded on numerous occasions before, that it is not appropriate to send substantive correspondence directly to chambers unless given leave to do so by the Judge. Applications are to be filed in the regular way with the Registry.”

20. Regrettably, Ms Kostov persisted with her stance and responded to my Associate on 23 April 2020, repeating her request for me to recuse myself on the basis of my prior professional relationship with the law firm and stating that:

“… Until this issue, is fairly and impartially dealt with, these underlying proceedings, cannot continue, in a conflicted court.”

Ms Kostov went on to say that:

“I confirm that I have read the Klewer matter to which Bell J referred in Directions on Monday, however no submissions on that issue, will be made, until the issue of recusal, is appropriately dealt with ...”.

21. The reference to the “Klewer matter” was a reference to this Court’s decision in Klewer v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 69 (Klewer) which was handed down on 20 April 2020 prior to the directions hearing in this matter and to which I drew the parties’ attention both orally and in my reasons of 21 April 2020. It will be necessary to refer to the judgment in Klewer later in these reasons.

22. On 27 April 2020, in an email, copied to my Associate but addressed to counsel for the Attorney General for New South Wales (the Attorney General) who, by separate notice of motion, had sought leave to be joined as third respondent (see further at [49]-[52] below), Ms Kostov reiterated her previous position, stating:

“… I will not be making any submissions on this matter, including the Attorney's Motion, until the Court of Appeal addresses the issue, of whether President Bell should recuse himself, and I ask such, be determined by 2 independent Court of Appeal judges.

Please advise His Honour of the above.”

23. Notwithstanding the informality of the manner in which Ms Kostov’s recusal application was made, namely by email to my chambers on the day following the directions, I will, as indicated in my Associate’s email of 23 April 2020 (see [19] above), deal with the application insofar as I understand it.

24. It is first desirable and necessary to set out the principles and refer to the authorities relevant to allegations of apprehended bias.

The principle of apprehended bias

25. The principle of apprehended bias gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the court or tribunal be independent and impartial: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6] (Ebner). In John Fairfax Publications Pty Ltd v Maurice Kriss [2007] NSWCA 79, the Court of Appeal held that the principle “exists not only to protect litigants from actual bias and injustice, but to maintain public confidence in the courts by ensuring that justice appears to be done”.

26. Where a question arises as to the independence or impartiality of a judge or other judicial officer, the governing principle, as outlined by the High Court in Ebner at [6], is that:

“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”.

See also Johnson v Johnson (2000) 201 CLR 488 at 492; [2000] HCA 48 at [11]; Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31]; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294; [1983] HCA 17; Collier v State of New South Wales [2014] NSWSC 1073 at [3]; Hamod v State of New South Wales (No 11) [2008] NSWSC 967 at [2]-[5]; Aussie Airlines Pty Limited v Australian Airlines Pty Limited & Qantas Airlines Limited (1996) 65 FCR 215 at 230; (1996) 135 ALR 753 (Aussie Airlines).

27. It is well established that the judge in respect of whom apprehended bias is alleged may rule on such an application.  The plurality in Ebner (at [74]) described this as “both the ordinary, and the correct, practice”: see also Quigley (A Practitioner) v The Legal Practitioners Complaints Committee [2003] WASCA 228 at [99]-[101]; GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Limited [2013] FCAFC 150 at [33]; Markan v Bar Association of Queensland (No 1) [2013] QSC 108; Lunn v The Commissioner for Public Employment [2009] NSWSC 19 at [23]; Duke Group Ltd (in liq) v Pilmer [2001] SASC 215 at [71]. This is for sound reasons. If it were otherwise, the mere making of an allegation, however misconceived, would have real potential to disrupt the orderly conduct of court proceedings if invariably required to be referred to another judge to await his or her determination. Furthermore, as Mahoney JA observed in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 436:

“… The principle adopted and followed has been that (special cases apart) the matter is to be determined by the judge himself and, if he be wrong, his error is to be corrected on appeal.

In my opinion, such an approach is correct. Ordinarily matters of bias or pre-judgment are not susceptible of proof in the ordinary way, by allegation and counter-allegation; whether a judge is affected in such fashion is ordinarily a matter known essentially by him…”.

28. The High Court in Ebner (at [8]) identified the two steps required in relation to the application of the apprehension of bias principle, as follows:

“First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.”

29. In Aussie Airlines at 222, Merkel J noted that “[p]rior professional relationships between adjudicator and litigant have been considered on a number of occasions. The very system of judicial appointment from the senior ranks of the profession means that such prior associations are inevitable”. Similarly, the High Court in Ebner recognised that the “potential forms of association between a judge and a litigant are manifold” (at [29]), but went on to stress that the important question is:

“how it is said that the existence of the ‘association’ or ‘interest’ might be thought (by the reasonable observer) possibly to divert the judge from deciding the case on its merits. As has been pointed out earlier, unless that connection is articulated, it cannot be seen whether the apprehension of bias principle applies. Similarly, the bare identification of an ‘association’ will not suffice to answer the relevant question. Having a mortgage with a bank, or knowing a party's lawyer, may (and in many cases will) have no logical connection with the disposition of the case on its merits.”

30. The importance of “identifying” and “articulating” the nature of the apprehended bias was recently considered by the Supreme Court of Western Australia in Farkas v Thomason [2020] WASC 67 at [74], where Smith J noted that:

“[a]pprehended bias must be firmly established. The suspicions of the ultra-sensitive, paranoid or cynical must not be allowed to determine the legal standard of impartiality. A vague sense of unease or disquiet is not enough” (footnotes omitted).

See also S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd(1988) 12 NSWLR 358 at 374; (1998) 91 FLR 175 (S & M Motor Repairs).

Cases where judicial officer has had prior professional relationship with a party to, or law firm engaged in, litigation

31. A number of decisions have raised for consideration the specific issue of whether a prior professional relationship between a lawyer and a client will disqualify the lawyer, on becoming a judge, from sitting in proceedings to which the former client is a party.

32. In Western Australia v Watson [1990] WAR 248, the Full Court of the Supreme Court of Western Australia rejected the submissions that a judge should ordinarily disqualify himself or herself if there had been a professional association between the judge and one of the parties to litigation, and where the other party has objected (at 263). The Full Court observed that the duty of a judge to disqualify for proper reasons was matched by an equally significant duty to hear any case in which there was no proper reason to disqualify (see also Raybos Australia Ltd v Tectran Pty Ltd (1986) 6 NSWLR 272).

33. This is the same point that Sir Anthony Mason made in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; [1986] HCA 39 where his Honour observed:

“Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

34. In Re Polites; Ex parte The Hoyts Corporation Pty Ltd (1991) 173 CLR 78 at 87-88; [1991] HCA 25, the High Court held that a prior professional relationship between a lawyer and client does not generally disqualify the lawyer, on becoming a judge, from sitting in proceedings to which the former client is a party, even if as lawyer the judge had given advice on an issue which will arise in the litigation. However, the judge may choose not to sit if the correctness or appropriateness of the advice is in issue, and a fortiori if the advice has gone beyond an exposition of the law to advise adoption of a course of conduct to advance the client’s interests and it will be necessary to decide whether the course of conduct taken was legally effective, wise, reasonable or appropriate. This inevitably will depend on the nature of the relationship, the ambit of the advice given and the issues for determination.

35. In S & M Motor Repairs, the issue before this Court was whether the primary judge should be disqualified because he had previously, on a number of occasions, appeared as counsel for the defendant, Caltex Oil. The majority of the Court held that the trial judge had nor erred in failing to disqualify himself, and that a professional relationship with Caltex Oil for 10 years, in which the trial judge had acted as their barrister, did not give rise to the requisite apprehension. The majority of the Court formulated the relevant question (at 378-379) as:

“Would it be reasonable for an observer, of average intelligence and having, let it be supposed, little knowledge of the legal system, on hearing what the judge said about having often worked for Caltex when he was a barrister, to say at once that he apprehended the judge might therefore favour Caltex in the litigation, consciously or unconsciously?”

The majority of the Court held (at 380-381) that:

“For the apprehension of the parties or the public to be reasonable, we think it must arise upon an understanding of the actual circumstances in which the claim of possible bias is made. In the present case, a reasonable person knowing nothing of the way in which barristers do their work might, on first thought, in fact apprehend possible bias. We do not think such a judgment would be reasonable, because founded on insufficient knowledge for arriving at such a judgment. The reasonable observer would, in our opinion, need to inform himself of the circumstances in which the judge had done legal work for Caltex, before being able to form a reasonable judgment on the question of possible bias. Once he understood, in general outline, the way in which barristers carry out the work they do, upon the instructions of solicitors, for clients, and upon understanding, again in a general way, the difference between a large business organisation and the people who work for it, it seems to us that it would no longer be reasonable to apprehend possible bias on the judge's part.

…

The circumstances of the present case do not seem to us to raise any such problems. The basis of the criticism of Bryson J was his connection with Caltex. When that it looked at in concrete rather than abstract terms we do not think the appeal should succeed on the ground of reasonably apprehended possibility of bias”.

36. That the “reasonable observer” would have a reasonable understanding of the way in which barristers carry out their work was reiterated by Brereton J in British American Tobacco Australia Ltd v Peter Gordon [2007] NSWSC 109 (BATA), where his Honour noted (at [63]) that:

“[t]he hypothetical fair-minded observer is a lay person informed as to the relevant facts of the case, sufficiently knowledgeable to bring a rational and reasonable assessment to bear on the question of whether the judge might be biased, and having a basic knowledge of the nature of practice at the Bar - including that a barrister does not become identified with the client and is bound by rules of professional ethics, and that a judge is a professional who by training, tradition and oath is required to discard irrelevant, immaterial and prejudicial material and can be ordinarily assumed to comply with the judicial oath [Vakauta v Kelly (1989) 167 CLR 568, 584-5; Precision Fabrication Pty Ltd v Roadcon Pty Ltd (1991) 104 FLR 260, 264]; Aussie Airlines, 224; Taylor v Lawrence [2003] QB 528, 548 [61], 553F [69]; Johnson v Johnson (2000) 201 CLR 488, 493 [12]-[13]].”

37. Similarly, in Aussie Airlines at 230, Merkel J noted that the “informed” observer could be presumed to have the “general knowledge” that when barristers act for a client they do so in a professional capacity, and could as easily have been briefed to fulfil the same task for the opposite side, that in accepting a brief the barrister does not become part of or identified with the client and has no financial interest in the outcome, and that the barrister acts as a member of an independent Bar, bound by a professional code of ethics.

38. In BATA, the defendant applied to Brereton J to disqualify himself on the ground of apprehended bias said to arise from the circumstance that for over a period of about four months in 2003, when at the Bar, his Honour had acted for BATA in other proceedings, which the defendant contended involved substantially the same issue as that which would have arisen in the proceedings in question. At [85], Brereton J highlighted the following propositions in relation to apprehended bias and prior professional relationships between a judicial officer and a litigant:

“•   A prior professional relationship between a lawyer and client – even a long and proximate one - does not generally justify a reasonable apprehension that the lawyer, on becoming a judge, will not determine proceedings to which the former client is a party impartially on their legal and factual merits, because the relevant fair-minded observer understands that counsel is not beholden to the client after the relationship is severed [Polites; Aussie Airlines; S&M].

•   Even having given advice to the former client, present litigant on an issue that arises in the matter before the court does not generally give rise to such an apprehension, because a judge can be expected to approach afresh with an open mind from the bench issues on which he or she has previously advised, illuminated by evidence and argument [Polites; Kartinyeri; A1 v King].

•   Nor does having advocated forensically a position on such an issue generally give rise to such an apprehension [Gascor]; indeed the position is a fortiori having given advice, because whereas giving advice involves counsel in reaching and expressing his or her own opinion on the issue, proper advocacy involves no more than presenting a tenable argument, which does not necessarily reflect counsel’s own opinion on the issue; advice therefore involves far greater potential for prejudgment than advocacy.

•   However, if the judge may be considered to have an interest in the outcome – for example, if the appropriateness of the advice is in issue, or if it will be necessary to decide whether a course of conduct advised by the judge as counsel was legally effective or appropriate - a reasonable apprehension of bias will arise [Polites; A1 v King].

•   Moreover, if the judge as counsel may reasonably be supposed to have gained special knowledge of the facts through prior involvement – including through privileged material in a brief – that may found a reasonable apprehension that as judge he or she may have in mind extraneous material not known to at least one party [S&R Investments], because a lay observer may reasonably think that a judge might not be able to put such information out of his or her mind.”

39. In BATA, Brereton J did choose to recuse himself from the interlocutory proceedings in question, only because those proceedings raised the “iniquity issue” with which his Honour had previously been briefed by BATA when working at the Bar. At [113], his Honour concluded that a:

“reasonable bystander might think that there was a real danger that I might be influenced, even unintentionally, by a natural inclination to avoid a conclusion that a cause with which I had been professionally associated, however briefly, was an iniquitous one, and that I should therefore not sit on a proceeding which would require me to consider the iniquity issue”.

However, his Honour noted (at [114]) that “that does not mean that I am disqualified from all interlocutory aspects of the case. The question of apprehended bias must be considered in the context of the issues that the court has to decide”.

40. In Bakarich v Commonwealth Bank of Australia [2010] NSWCA 314, the principal issue before this Court was the alleged apprehended bias of the primary judge, based on his previous professional relationships with both Senior and Junior Counsel for the defendant Bank, and the Bank itself. Prior to his appointment to the Supreme Court in early 2003, the primary judge had represented the Bank in a number of cases while he was a barrister. The Court held (at [59]-[60]):

“In our opinion, the circumstance that the primary judge represented the Bank on a number of occasions while he was a barrister was not a circumstance such that the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the issues. The evidence does not suggest that the primary judge’s representation of the Bank indicated a relationship that was of the order of that considered in S & M Motor Repairs Pty Limited v Caltex Oil (Australia) Pty Limited (1988) 12 NSWLR 358; and the majority of the Court of Appeal in that case held that the trial judge did not err in not disclosing his relationship with Caltex and in not disqualifying himself. Kirby P in dissent held that the trial judge in that case should have done so, but did so on the basis of the duration and intensity of the judge’s connection with Caltex (at 375). The evidence does not suggest a connection of that kind in this case.

Accordingly, in our opinion, it was not necessary for the primary judge in this case to have disclosed that he had, when a barrister, acted for the Bank on a number of occasions between 1995 and 1998: cf Re Polites (1991) 173 CLR 71.”

Consideration

41. No basis has been made out for me to recuse myself in the hearing of the preliminary point in this matter, namely whether or not the proceedings should be taken to have been dismissed by reason of the operation of s 13(3) of the Vexatious Proceedings Act and Ms Kostov’s failure to obtain leave prior to their institution. That is so for several reasons.

42. First, I had no involvement whatsoever with any application made by any person or by any law firm, let alone “the client” and “the law firm”, to have Ms Kostov declared a vexatious litigant in 2018 or at any other time. Indeed, I had never heard of Ms Kostov until well after I took up my appointment to this Court on 28 February 2019.

43. Second, whilst it is correct that from time to time throughout my career at the Bar, I was retained by “the law firm” to which Ms Kostov referred in her email of 21 April 2020, extracted at [18] above, including in one matter to represent “the client” to whom Ms Kostov also referred, so far as I am aware from the decision of Fagan J in which Ms Kostov was declared to be a vexatious litigant (see [6] above), neither “the law firm” which formerly retained me, nor “the client” referred to by Ms Kostov, played any role in the proceedings before Fagan J. The parties to those proceedings were Ms Kostov and the State of New South Wales, represented by the Crown Solicitor’s Office.

41. Third, the fact that a judge may have formerly been retained from time to time by a particular law firm for a particular client is not in and of itself a basis for recusal (as the authorities referred to at [33]-[40] above make abundantly clear).

42. Fourth, to the extent that Ms Kostov has pointed out in her email correspondence that the tipstaff or associate to Fagan J was employed by “the law firm” in question after he or she left the position with Fagan J is wholly irrelevant, both generally and in the context of her application for me to recuse myself from the hearing and determination of the preliminary issue in this matter. As I have explained, this matter is concerned with what is essentially a purely legal question viz. what are the consequences, if any, of a failure by a person the subject of a vexatious proceedings order in not obtaining leave prior to commencing judicial review proceedings.

43. Fifth, Ms Kostov’s submission, if I have understood it correctly, involved a serious and wholly unfounded implicit assertion that, in making the vexatious proceedings order, Fagan J was in some way influenced to do so by a former tipstaff or associate doing the bidding of a law firm at which he or she had just commenced employment, and which was not, in any event, retained by either party in the proceedings before Fagan J.

44. On any number of levels, this contention is not only flawed but scandalous. I reject it in its entirety.

45. Accordingly, the application that I recuse myself is refused.

Joinder application

49. Before turning to a consideration of the substantive question for determination, namely whether Ms Kostov required leave to commence these proceedings, it is necessary to deal with a notice of motion filed in these proceedings by the Attorney General on 27 April 2020. That notice of motion sought leave for the Attorney General to be joined as third respondent to the summons filed by Ms Kostov on 6 March 2020 in order to make submissions on the questions contained in my directions of 20 April 2020. The notice of motion was supported by an affidavit of Ms Amanda Rose Sapienza (Ms Sapienza) which relevantly stated that the Attorney General sought leave to be joined on the basis that the questions which were the subject of my directions of 20 April 2020 concerned the operation of the Vexatious Proceedings Act and had implications beyond this particular case. The affidavit pointed out that the Attorney General is the Minister with responsibility for the Vexatious Proceedings Act.

50. This motion was listed for hearing on 4 May 2020 and Ms Kostov was informed of that listing. She indicated, however, by email of 1 May 2020 to my Associate, that:

“Please note the below for His Honour, there will be no appearance by me on this Motion or other matters, until the issue of President Bell’s recusal as outlined to you in prior correspondence, is addressed by two Independent Court of Appeal Judges.

There will therefore be no appearance by me on Monday, for this reason.

Thankyou”.

51. Following this indication, I withdrew the listing of the motion with a view to dealing with it in the course of this judgment, in light of Ms Kostov’s unilateral refusal to participate in the proceedings, notwithstanding the fact that they had been commenced by her.

52. For the reasons stated by Ms Sapienza as outlined at [49] above, it is appropriate that the Attorney General be joined to the proceedings and I will grant leave to do so.

Leave to bring judicial review proceedings

53. That then leaves for consideration the two questions in respect of which I made directions on 20 April 2020, namely, whether or not Ms Kostov required leave pursuant to the Vexatious Proceedings Act to commence the judicial review proceedings and what the consequences were, if any, of her failure to obtain such leave.

54. Submissions were filed on these questions by both Ms Gleeson of counsel on behalf of the Director of Public Prosecutions (NSW), and by Mr Emmett of counsel on behalf of the Attorney General in anticipation of being joined as a respondent to the proceedings.

Ms Kostov’s refusal to file submissions

55. As will be apparent from these reasons so far, Ms Kostov unilaterally refused to make submissions on either of the questions the subject of the 20 April 2020 directions, unless and until the informal recusal application was dealt with (see [17], [18], [20] and [22] above). That refusal extended to not taking up the provision made in the directions to file submissions in reply.

56. It is not for a litigant to dictate how a Court is to proceed, nor unilaterally to refuse to comply with directions made by the Court.  In this regard, I note that no application was made by Ms Kostov during the directions hearing of 20 April 2020 for me to recuse myself, and no suggestion was made by her on that occasion that it was inappropriate for me to deal with the matter, or that Ms Kostov would not be making submissions.

57. The course I adopted, as set out in my Associate’s email to Ms Kostov of 23 April 2020 extracted at [19] above, was designed to deal with her application fairly and efficiently. Ms Kostov’s ability to comply with the Court’s directions in relation to the leave question arising under s 13 of the Vexatious Proceedings Act did not depend in any way on whether or not I recused myself. As explained in my Associate’s email of 23 April 2020, had I considered that a case for recusal was made out, I would have referred the leave question to another judge of appeal.

58. Ms Kostov was squarely on notice of the Court’s directions and that the Court expected those directions to be complied with. Her misguided and unilateral decision not to file any submissions on the leave question was entirely of her own making.  I say nothing further about the peremptory tone of her communications. She has had ample opportunity to make submissions and has not taken up that opportunity.

Submissions by the Director of Public Prosecutions (NSW) and Attorney General

59. The submission on behalf of the Director of Public Prosecutions (NSW), in summary form, was that:

“a. Leave is required to commence judicial review proceedings in respect of an appeal pursuant to s 11A(1) of the CARA;

b. The proceedings were instituted in contravention of s 13(1)(a) of the VPA with the consequence that:

i. The proceedings are stayed until they are dismissed pursuant to s 13(2) of the VPA; and

ii. 28 days having elapsed since the proceedings were instituted, they are taken to have been dismissed pursuant to s 13(3);

c. The effect of s 13 of VPA precludes any grant of leave nunc pro tunc.    In any event, the Court would not grant leave in the present case   because the proceedings are vexatious and there is no prima facie    ground for them, for the reasons articulated in the Dismissal    Submissions, so that they are liable to be dismissed pursuant to s 15    of the VPA.”

60. The Director of Public Prosecutions (NSW) referred to Klewer (discussed further at [64]-[67] below) and then submitted:

“The effect of subsections 13(1)-(3) is that, where proceedings within the scope of an order under the VPA are commenced without leave, they are stayed and then dismissed 28 days after the proceedings are initiated: De Varda v Austin [2018] NSWCA 263 at [34]. The application for leave must be made before the commencement of proceedings, its object being to ‘avoid the consequences of s 13’: Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; NSWCA 129 (Potier) at [72] (Leeming JA).”

61. In Potierv State of New South Wales [2014] NSWCA 359 at [9], Leeming JA described s 13 of the Vexatious Proceedings Act as containing provisions which “operate of their own force.”

62. In written submissions filed on behalf of the Attorney General, it was submitted that the decision in Klewer required Ms Kostov to have obtained leave. It was then submitted that, notwithstanding the terms of s 13(2) of the Vexatious Proceedings Act (extracted at [11] above), it may be open to this Court to grant leave nunc pro tunc but that, if this power existed, it should be exercised sparingly. The Attorney General submitted that:

“The Court's power to antedate an order, whether pursuant to UCPR 36.4(3) or the Court's inherent jurisdiction, cannot be exercised in contravention of a statute or in a manner inconsistent with the statute conferring power on the Court: see, eg, Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2009] WASCA 97 at [58]-[59]; Director of Public Prosecutions (WA) v Brown [2012] WASCA 102 at [57].

The matter must always turn on the particular statutory context before the Court. In Esso Australia v Australian Workers' Union (2018) 263 CLR 551 at [49], Kiefel CJ, Keane, Nettle and Edelman JJ were dealing with an express statutory power to make orders retrospectively in section 603 of the Fair Work Act 2009 (Cth). Their Honours said that, ‘although it has been said that courts should eschew the exercise of inherent power to vary an order nunc pro tunc where the variation would have the effect of altering the substantive rights of the parties, the statutory power accorded by s 603 is different’.”

63. The submission that leave could be granted retrospectively nunc pro tunc is far from self-evident in my view and, as Ms Kostov elected not to participate in this aspect of the case and therefore did not seek leave nunc pro tunc, it is not necessary to decide the question.

Significance of Klewer

64. In Klewer, this Court decided that a person the subject of a vexatious proceedings order who is convicted of a criminal offence does not require leave under the Vexatious Proceedings Act to appeal from such a decision: see Klewer at [25]-[26], [35], [70]-[71] and [104].

65. By majority (Simpson AJA and myself), the Court also held that where a person the subject of a vexatious proceedings order seeks judicial review of a decision to dismiss an appeal from a criminal conviction, leave pursuant to the Vexatious Proceedings Act is required to bring such proceedings: [38]-[42], [107] and [112].

66. At [109]-[111], Simpson AJA explained:

“Appeals against conviction or sentence could properly be characterised as ‘criminal proceedings … taken … in connection with or incidental to criminal proceedings …’. As the President has observed, they involve the exercise of criminal jurisdiction; in this case, the criminal jurisdiction of the District Court. In other words, the legislature intended to protect the appellate rights of persons subject to criminal proceedings against them by excluding the prohibition imposed by vexatious proceedings orders, so long as the exercise of those rights involved the invocation of criminal jurisdiction. By contrast, while applications under s 69 of the Supreme Court Act in respect to criminal conviction and sentence may reasonably be characterised as ‘proceedings … taken … in connection with or incidental to criminal proceedings …’, they would not, in ordinary language, reasonably be characterised as criminal proceedings … taken … in connection or incidental to criminal proceedings …’ . Applications under s 69 do not involve the exercise of criminal jurisdiction. The legislature did not intend the subs (9) exclusion to extend to collateral rights, in the civil jurisdiction of the courts, to call in question the criminal process.

Also not to be overlooked in this context, are the important provisions of s 69C of the Supreme Court Act. Section 69C applies to proceedings in the Supreme Court for judicial review of determinations made by the District Court in appeal proceedings relating to conviction or orders made by the Local Court, or sentences imposed by the Local Court – that is, appeals under Part 3 Div 1 of the Appeal and Review Act. By subss (2) and (4) of s 69C execution of such a sentence, or any order (other than an apprehended violence order under the Crimes (Domestic and Personal Violence) Act 2007 (NSW)) is stayed until final determination of the judicial review proceedings. In the light of s 69C it is unlikely that the legislature intended to exclude proceedings under s 69 from the requirement that, where a vexatious proceedings order is in force, leave be obtained before the commencement of the proposed proceedings. It would be anomalous if a person whose previous history of habitual, persistent and groundless institution of proceedings (to borrow the language of s 84) had been found to justify the restrictions of a vexatious proceedings order could, nevertheless, have unfettered access to the court through proceedings that would, on their commencement and by force of statute, operate to stay orders made in the criminal justice process. The mere commencement of a proceeding under s 69, no matter how baseless, would put the criminal process into abeyance.

I appreciate, as alluded to in the judgment of Basten JA (which I have also had the advantage of reading in draft) the importance of the supervisory jurisdiction this Court in relation to access to justice. But a vexatious proceedings order does not deny such access: it merely interposes a leave requirement in the case of an individual who has been shown to have repeatedly misused that access.”

67. In Klewer, Ms Klewer had sought the requisite leave in her summons for judicial review and such leave was, in the particular circumstances, granted.

Consideration and conclusion

68. As was submitted by both the Director of Public Prosecutions (NSW) and the Attorney General, Ms Kostov was required to obtain leave to bring judicial review proceedings in this Court by reason of the fact that she was and remains the subject of a vexatious proceedings order. This follows both from an application of the principles enunciated in Klewer, and the terms of s 13 of the Vexatious Proceedings Act.

69. As Beazley P explained in De Varda v Austin [2018] NSWCA 263 at [29] (De Varda):

“Once an order has been made under the Vexatious Proceedings Act, the person against whom the order has been made ‘may not institute proceedings of the kind to which the order relates without the leave of an appropriate authorised court under section 16’: s 13(1)(a). An ‘authorised court’ is defined in s 3 to include the Supreme Court. An ‘appropriate authorised court’ is defined in s 12 to mean, relevantly, the authorised court that made the order. In this case, as the order was made in the Supreme Court it was necessary for the applicants to seek the leave of the Supreme Court before instituting any proceedings that were constrained by the terms of the Vexatious Proceedings order.” (emphasis in original).

70. No such leave was secured in the present case.

71. The consequences of Ms Kostov not seeking leave prior to commencing proceedings are dictated by s 13(3) of the Vexatious Proceedings Act, extracted at [11] above, namely that the proceedings are taken to have been dismissed.

72. It is not necessary to consider the Director of Public Prosecutions (NSW)’s fall back position that leave should not be granted, even if it could now be sought from this Court and granted nunc pro tunc.

73. Consistent with this Court’s decision in Klewer and De Varda, in my opinion, Ms Kostov’s failure to have first obtained leave to commence the judicial review proceedings has contravened s 13(1) of the Vexatious Proceedings Act. As no leave was sought or granted within 28 days of the institution of those proceedings, they are, by reason of s 13(3) of the Vexatious Proceedings Act, taken to have been dismissed.  Consistent with the order made in De Varda, a declaration that the proceedings stand dismissed will be made.

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