Kowalski v Mitsubishi Motors Australia Staff Superannuation Pty Ltd - [2017] SASCFC 175

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application)
KOWALSKI v MITSUBISHI MOTORS AUSTRALIA STAFF SUPERANNUATION PTY LTD & ANOR
[2017] SASCFC 175
Judgment of The Honourable Justice Nicholson
22 December 2017
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - REASONABLE SUSPICION OF BIAS
Application for Judge to recuse himself from further involvement in the Full Court appeal on the basis of apprehended bias or actual bias.
Held: Application dismissed.
Attorney-General v Kowalski (No 6) [2017] SASC 122; Attorney-General v Kowalski [2014] SASC 1; Johnson v Johnson [2000] HCA 48, (2000) 201 CLR 488; Ebner v Official Trustee and Bankruptcy [2000] HCA 63, (2000) 205 CLR 337; Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48, (2011) 244 CLR 427; Re JRL; ex parte CJL [1986] HCA 39, (1986) 161 CLR 342, considered.

KOWALSKI v MITSUBISHI MOTORS AUSTRALIA STAFF SUPERANNUATION PTY LTD & ANOR
[2017] SASCFC 175
Full Court: Kourakis CJ, Nicholson and Hinton JJ
NICHOLSON J.

I am a member of the Full Court which has heard but not determined an appeal from Mr Kowalski against a judgment delivered by the then Chief Judge of the District Court which allowed the respondents’ application for summary judgment against the appellant and dismissed the appellant’s claim for summary judgment against both respondents.
The two applications for summary judgment arose in proceedings brought by the appellant by way of statement of claim, filed in the District Court on 2 September 2015, by which he sought various orders and declarations including to the effect that the trustee of a superannuation fund, as presently constituted, be directed to consider the question of the appellant’s eligibility for a total and permanent disablement benefit according to law.
The Full Court heard submissions from the parties to the appeal over two days and reserved its decision.
Very recently and whilst the decision on appeal has remained reserved, the appellant has been reminded of an ex tempore judgment I delivered when sitting as a District Court Judge on 3 December 2008 in an unrelated matter to which the appellant was a party being the matter of Kowalski v Andrew Sim & Ors[1] (the 2008 ex tempore judgment). I dismissed the appellant’s appeal in that matter. However, as a result of the decision by Blue J, a judge of this Court, earlier this year in Attorney-General v Kowalski (No 6)[2] (the 2017 Blue J decision) together with certain observations made by Blue J in Attorney-General v Kowalski[3] (the 2014 Blue J observations) being observations which related to or reflected upon the 2008 ex tempore decision, the appellant now contends that my decision given in 2008 demonstrates bias against him. He has filed an application (FDN 14) in the current Full Court appeal proceedings that I recuse myself from any further involvement in that matter. The application is supported by two affidavits, together with exhibits, sworn by the appellant on 16 and 18 December 2017 (FDN 15 and 16 respectively).
[1] District Court No. 957 of 1996.
[2] [2017] SASC 122.
[3] [2014] SASC 1 at [1289]-[1291].
The 2014 Blue J observations were as follows:
On 5 September 2008, Mr Kowalski filed a notice of appeal against Master Norman's orders (R13). On 3 December 2008, Judge Nicholson dismissed the appeal.
In his ex tempore reasons for judgment, Judge Nicholson proceeded on the basis that an appeal from a Master in the District Court is by way of re-hearing and that he was required to consider the matter afresh based on the materials before the Master together with such further evidence or other materials as may be properly admitted on the appeal. Judge Nicholson referred to a volume of materials which were put forward by Mr Kowalski on the appeal as well as submissions made by Mr Kowalski extending over approximately one hour.
Judge Nicholson expressed the following conclusion by reference to those materials:
In my view, Mr Kowalski’s claim that he has a legal and factual basis to reopen the claim brought against the defendant in this matter is weak, if not untenable.
These observations need to be put in context. The appellant in 1996 had commenced a professional negligence claim in the District Court against his former solicitors. The matter went to trial before a Judge of the District Court who on 20 March 2002 delivered a judgment dismissing the appellant’s claim. The appellant lodged an appeal to the Supreme Court but that appeal was not pursued. It is unnecessary to canvas here the circumstances in which and the reasons why that appeal was not pursued. However, the appellant took out an interlocutory application on 14 April 2002 seeking to set aside the trial Judge’s decision pursuant to r 84.12 of the District Court and Supreme Court Rules 1987. That application was dismissed by the trial Judge on 3 May 2002.
On 27 May 2008, the appellant filed a further application in the District Court seeking to set aside the judgment. On 13 June 2008, a District Court Master directed the Registrar not to issue the application without the leave of the Court and, on 20 June 2008, the appellant filed an application seeking such leave. On 4 September 2008, the Master refused leave. On 5 September 2008, the appellant filed a notice of appeal against the Master’s orders which came before me and which resulted in the 2008 ex tempore judgment. There was no appeal from my decision.
In short, it can be seen that the 2008 ex tempore judgment brought to an end the appellant’s attempt to have the original trial judgment delivered in 2002 set aside and the proceedings reopened at first instance. In the 2008 ex tempore judgment, I intimated that, in my view, the appellant’s application to have a Judge of coordinate jurisdiction, another District Court Judge, order that a judgment after trial on the merits by a District Court Judge be set aside was, in the circumstances before me, unsound. I observed that the more appropriate manner by which to challenge the judgment was the ordinary appeal process. For this and a number of other reasons, as set out in the 2008 ex tempore judgment, I dismissed the appeal from the Master. I did observe, as the appellant has said, that his claim that he had a legal and factual basis to re-open the 2002 judgment was “weak, if not, untenable”.
By way of further context and in order to understand the appellant’s contention, the 2008 ex tempore judgment needs to be considered in light of the 2017 Blue J judgment.[4] His Honour there granted permission to the appellant to apply to reinstate his appeal from the 2002 District Court judgment on certain specified grounds.[5] In so ruling, his Honour found that it was reasonably arguable that the 2002 trial Judge had erred in a number of respects.
[4] Attorney-General v Kowalski (No 6) [2017] SASC 122.
[5] The appellant has been declared a vexatious litigant in Attorney-General v Kowalski [2014] SASC 1 and as a consequence, requires permission pursuant to section 39 of the Supreme Court Act 1935 before commencing proceedings in, inter alia, this Court.
It would appear that the appellant’s essential complaint is to the effect that Blue J, in making these findings has contradicted and demonstrated the falsity of my decision and reasoning in the 2008 ex tempore judgment. It is also contended to the effect that I have acted corruptly and am part of a conspiracy within the court system in South Australia to protect the applicant’s former solicitors and other persons. The appellant asserts apprehended and, as I understand the position, actual bias on my part.
The well established test for determining whether a Judge should disqualify himself or herself on the basis of an apprehension of bias is that of a fair minded, lay observer, as explained by the plurality in the High Court decision of Johnson v Johnson.[6]
[I]t has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) 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.
That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. "If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision". The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial".
[6] [2000] HCA 48; (2000) 201 CLR 488 at [11]-[12] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) (footnotes omitted).
The approach outlined in Johnson was again endorsed by the High Court in Ebner v Official Trustee and Bankruptcy.[7]
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), 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. That principle 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 tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
The test requires a two stage process. The first is an identification of something that might lead a Judge to decide a case other than on its legal and factual merits. The second is the identification of a logical connection between the something and the feared deviation from the course of deciding the case on its merits.[8] Any reasonable apprehension of bias must be firmly established before disqualification will follow.[9]
[7] [2000] HCA 63; (2000) 205 CLR 337 at [6]. (Gleeson CJ, McHugh, Gummow and Hayne JJ) (footnotes omitted).
[8] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [8].
[9] British Australian Tobacco Australia Services v Laurie [2011] HCA 2; (2011) 242 CLR 283 at [44]-[45].
As a general proposition, apprehended or actual bias is not to be inferred simply from the fact that a judge has made an adverse finding against the litigant. Where a claim of apprehended bias relies on a previous adverse decision, the test is whether what was done on a previous application might reasonably cause a fair minded lay observer to apprehend that the judge might not bring an impartial mind to the future resolution of an issue before the court.[10]
[10] Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427.
A judge has a duty not to withdraw from a case and to continue to hear a matter unless there are proper grounds which require recusal.[11]
[11] Re JRL; ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352.
The 2008 ex tempore judgment dealt with a matter and considerations materially different from the matter and considerations dealt with by Blue J. My task was to determine whether or not there was merit in the appellant’s application to re-open and have set aside a first instance District Court judgment following a trial on the merits whereas Justice Blue was called upon to decide whether or not proposed grounds of appeal from that judgment were reasonably arguable. In short, Blue J and I decided different legal questions on the basis of different factual and legal considerations. There is no necessary inconsistency between the respective determinations or reasoning underpinning each one. Even if there were an inconsistency, such would not demonstrate that I was incorrect in coming to the conclusion I reached in the 2008 ex tempore judgment.
In any event, judicial officers do from time to time err, regrettable as that may be, without an inference of male fides arising. Judicial officers are also free to disagree without an inference of male fides arising. An appeal process was available to the appellant to test the correctness of the 2008 ex tempore judgment but this was not availed of.
In these circumstances, it cannot be said that a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the completely unrelated Full Court matter of which I am presently, together with two other judges of this Court, seized. Neither of the steps in the two stage process for the test of apprehended bias, identified above, has been satisfied in the circumstances of this matter.
Given that the appellant has failed to demonstrate any apprehension of bias, any claim of actual bias, ordinarily, should fail as well. In any event, there is nothing about my 2008 ex tempore judgment that would suggest that I possess an actual bias against the appellant such that, as matter of fact, I would not bring an impartial mind to my consideration of the issues presently before the Full Court.
I decline to recuse myself and the appellant’s application in FDN 14 is dismissed.