Lauro v Minter Ellison (A Firm) (No 2)

[2025] SASC 77

SUPREME COURT OF SOUTH AUSTRALIA

(Appeal to a Single Judge)

LAURO v MINTER ELLISON (A FIRM)

[2025] SASC 77

Judgment of the Honourable Justice B Doyle  

27 May 2025

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FOR BIAS IN JUDICIAL PROCEEDINGS

COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS

The appellant has applied for a taxation of costs as between solicitor and client.  An Auxiliary Associate Justice with conduct of that matter declined to accede to the appellant’s request that she recuse herself.  The appellant appeals against that decision.  The appellant also made an interlocutory application in connection with the appeal.  After that application was listed, the appellant clarified that an objection that had been taken to a number of judicial officers being involved in the appeal included the judge before whom the application was listed.

Through his litigation guardian, the appellant requested that the judge recuse himself, having regard to matters including: his familial connection with the former Chief Justice and another Justice of the Court, about whose conduct the appellant has raised concerns; the circumstance that the judge’s spouse was previously employed (not as a lawyer) by the respondent; and the circumstance that the judge, whilst a barrister, appeared in matters on the instructions of the respondent law firm.

Held, declining to recuse himself:

1.considered individually and cumulatively, the matters raised by the appellant are not such as might cause a fair-minded lay observer reasonably to apprehend that the judge might not deal with the appellate proceeding by reference to its merits;

2.whilst in cases of real doubt, a judicial officer may adopt a prudent or cautious approach even though not positively persuaded that the test for disqualification is satisfied, the present case does not fall within that category.

Supreme Court Act 1935 (SA) s 50, referred to.
Attorney-General (NT) v Director of Public Prosecutions (2013) 166 NTR 1; CM v Secretary, Department of Communities and Justice [2021] NSWCA 244; Contract Mining Services Pty Ltd v Adelaide Brighton Cement Ltd [2020] SASC 69; Dixon v Cargill Meat Processors Pty Ltd [2009] NSWSC 101; Duke Group Ltd v Pilmer (No 3) [2001] SASC 215; Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; Federated Engine Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398; Hanna v Flinders University [2025] SASC 6; Lauro v Minter Ellison (A Firm) [2024] SASC 14; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; Re Nash (No 2) (2017) 263 CLR 443; S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358; Smits v Roach (2006) 227 CLR 423; Tropeano v Lauro [2010] SADC 113; Viscariello v Tamasauskas (No 2) [2019] SASC 40; Willoughby City Council v Transport Infrastructure Development Corporation [2008] NSWLEC 231, discussed.

LAURO v MINTER ELLISON (A FIRM)

[2025] SASC 77

Single Judge Appeal—Application

1. B DOYLE J:  By notice of appeal filed on 11 March 2025, the appellant appeals against a decision of an Auxiliary Associate Justice to decline to recuse herself.  In the underlying action, the appellant has applied for a taxation of costs as between solicitor and client.  I am asked to recuse myself from hearing and determining the appellate proceeding.

   Background

2. By an interlocutory application lodged shortly following the institution of the appeal, the appellant sought various orders including that the appeal not be listed before any ‘conflicted, recused or disqualified Judicial Officer’. 

3. Mr Eric Lauro is the appellant’s litigation guardian.  In an affidavit he made in support of that application, he affirmed that the judicial officers who he requested not be involved in the appeal were:

   1.in alphabetical order: Justices Bampton, Bleby, Doyle and Gray, Chief Justice Kourakis and Justices Livesey and Stanley of this Honourable Court;

   2.Judges Bochner and Dart, and Auxiliary Associate Justice Flourentzou of this honourable Court;

   3.any other permanent, temporary or auxiliary, past, present or retired Judicial Officer of this or any other honourable Courts or body who has been previously recused, disqualified or complained against, or has any past or present, direct or indirect conflict of interest with Minter Ellison and/or prior involvement in Lauro v Minter Ellison and related cases.

4. I initially assumed that the appellant’s objections to Justices Doyle and Gray were likely to relate to Justice S Doyle (or perhaps former Chief Justice John Doyle) and the former Justice T Gray.

5. The interlocutory application sought other relief that required the matter to be listed prior to the substantive hearing of any appeal.  As the judicial officer allocated responsibility for single justice appeals for the month in which the application was filed, the application was referred to me.

6. Because I was in the midst of hearing a trial, arrangements were made for the interlocutory application to be referred to the chambers of Justice Gray.

7. However, it was made clear that the appellant did object to (the current) Justice Gray hearing the matter.  I therefore informed the parties that I proposed to list the interlocutory application on 27 March 2025.  Mr Lauro then informed my chambers and the respondent that the appellant’s objection as set out above was intended to extend both to Justice S Doyle and me.

8. In the email in which Mr Lauro gave that clarification, he also indicated that he was unfit and unable to attend on 27 March 2025 or any time during that week.

9. The parties were advised that the interlocutory application would instead be listed on 11 April 2025, but that the question of recusal would be addressed prior to embarking on substantive consideration of the balance of the interlocutory application.  Due to further availability issues between the parties, the hearing was ultimately listed on 16 April 2025.

10. As it happened, in the course of the hearing on 16 April 2025, the other aspects of the interlocutory application (concerning Mr Lauro’s status as litigation guardian, the application for provision of recordings of the hearings before the Auxiliary Associate Justice and the application for a stay of the underlying proceeding pending the finalisation of the appeal) were able to be resolved consensually, leaving the question of recusal to be considered.

11. I indicated that I had no recollection of any involvement in a dispute between the appellant and the respondent, or any involvement with Mr Lauro, but invited the parties to inform me if that was not the case.  I indicated that having undertaken an search that morning I had identified a decision in a matter in which, as counsel, Justice S Doyle had appeared against the appellant.[1] I anticipated that this might be the foundation for Mr Lauro’s concern.  I indicated that beyond that, I was not aware of any particular matters that might bear on the appropriateness of my hearing the matter.  I invited the parties to raise any other matters of which they were aware that might be relevant.

    [1]     Tropeano v Lauro [2010] SADC 113.

12. Mr Lauro inquired whether the matter could be dealt with by administratively assigning the matter to another judicial officer.  I indicated that owing to the relatively small remaining pool of justices who were not objected to, and the practicalities associated with the Court’s rostering, there was no ready administrative solution.  I requested that Mr Lauro outline the basis for the recusal application.  Mr Lauro requested the opportunity to make written submissions, but indicated that broadly, the issue was personal relationships, professional relationships and employment.  He also indicated that he wished to obtain some advice on the matter.

13. Over the respondent’s opposition, I allowed Mr Lauro 14 days within which to file written submissions on recusal.  The parties consented to my deciding the question of recusal without convening a further oral hearing.

14. Subsequently to the hearing on 16 April 2025, the parties were informed that my wife was employed in the marketing and business development division of Minter Ellison between 2002 and 2018.  The parties were informed of the details of her employment since that time.  She has had no involvement in any matter involving the appellant or Mr Lauro.

15. On 30 April 2025, I made an order granting the appellant a further seven days within which to file his submissions on recusal.  The submissions were filed on 8 May 2025.  Minter Ellison provided responding submissions on 9 May 2025.  Mr Lauro’s submissions referred to the ‘strict timetable’ set by me and requested that the Court consider listing an oral hearing to afford him the opportunity to clarify any matters raised therein.

16. I acceded to that request.  The time originally proposed was not convenient to Mr Lauro.  I then listed the matter for hearing on 12 May 2025.  At that hearing, Mr Lauro handed up further written submissions, responding to the written submissions of Minter Ellison.  As I explain later, the written submissions obliquely referred to ‘complaints’ having been made in respect of my brother and my father.  Because I was concerned to understand the basis for that submission, I granted the appellant until 10 am on 19 May 2025 within which to file and serve affidavit evidence addressing that matter.  Mr Lauro filed an affidavit during the course of that day, to which I return below.  Minter Ellison provided a short written submission in response on 20 May 2025, and Mr Lauro filed responding submissions on 21 May 2025.

17. I now provide my reasons for declining to recuse myself.

    The grounds for the application

18. Mr Lauro’s detailed written submissions of 8 May 2025 identify a number of matters that are of concern to him and which I will consider in resolving this application.  Whilst I have considered his submissions as a whole and in their entirety, in broad terms, they may be summarised as follows:

    ·my conduct at the hearing on 16 April 2025;

    ·my familial relationship with former Chief Justice Doyle, who presided over a callover hearing in 2011 about which Mr Lauro expresses a concern;

    ·my familial relationship with Justice S Doyle, who whilst at the independent bar, acted in a matter against the appellant on the instructions of Kelly & Co, about whose conduct he expresses a concern;

    ·my former employment by Kelly & Co, and my involvement in matters in which the firm retained Justice S Doyle, when he was a barrister;

    ·my appearance, whilst at the independent bar, in matters with Justice S Doyle, when he was a barrister;

    ·my having been briefed in numerous matters by Minter Ellison, whilst a member of the independent bar.

19. I will address these concerns with a view to deciding whether, applying the ‘double might’ test recently confirmed in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2] (‘QYFM’), I should recuse myself.

    [2] (2023) 279 CLR 148.

20. In applying that test, it is necessary to identify the factor that might lead a judge to resolve a question other than on its legal and factual merits, to articulate the logical connection between that factor and the apprehended deviation from deciding that question on its merits, and to assess the reasonableness of that apprehension from the perspective of a fair-minded lay observer.[3]

    [3] (2023) 279 CLR 148 at [38] (Kiefel CJ and Gageler J).

    Conduct of hearing

21. In his written submissions, Mr Lauro expressed a concern that I presided at the hearing, despite by that time being on notice of the objection to my hearing the appeal.  The submissions state that during the hearing on 16 April 2025, Mr Lauro:

    … raised queries and concerns regarding:

    ·the purported limited jurisdiction his Honour claimed to have in this case;

    ·the ‘provisional’ hearing of the appeal on 30 May 2024;

    ·the judicial notice of Hanna v Flinders University [2024] SASCA 127, which was only given at the end of the hearing, after his Honour had set a strict timetable that appeased the Respondent, but did not account for the additional time required to also deal with this recent legal development.

22. As to my presiding at the hearing, it was not inappropriate that I deal with the recusal application in open court.  If a judicial officer comes to a clear view that they should not sit, they may act on that decision without the necessity of a hearing.  But there is no difficulty with a judicial officer presiding at a hearing for the purpose of dealing with a recusal application.  Sometimes that may be preferable, having regard to the importance of the principle of open justice.

23. Turning to the concerns expressed at the hearing, my recollection and review of the transcript suggests that Mr Lauro did not in fact articulate a concern that I was claiming or exercising a ‘purported limited jurisdiction’, nor did I express myself in those terms.  In any event, the question is not whether a concern was raised but whether my conduct was such as might give rise to a relevant apprehension of bias.

24. In the course of the hearing, I conveyed that I considered I was seized of the matter, that I should hear the application of recusal before deciding whether I should remain seized of the matter, but that with the parties’ agreement, I would progress any non-contentious procedural matters.  As has been mentioned, the other procedural matters were able to be resolved without controversy, so I considered it appropriate to deal with them.

25. With respect to the hearing date, I do not consider a fair-minded observer could conclude that I ‘appeased’ the respondent.  Having regard to the timing of the filing of the appeal, it would in the ordinary course have been listed to be heard in or before May.  No party submitted that the appeal is especially complex so as to warrant a deferred hearing on account of lengthy preparation being required.

26. I explained in the hearing that the judge rostered to hear appeals in June was a Justice to whom objection had been taken.  It also happens that, ordinarily, single judge appeals are not listed in July, and that the same judge to whom objection was taken is listed to hear appeals in August.  Subject to the question of recusal, therefore, the practical effect was that if I did not hear the matter in May, there might be a difficulty in the matter being heard prior to September.

27. Counsel for the respondent indicated he was away in July and part of August.  Whilst I had regard to counsel’s availability (in my view, properly, because there is a cost efficiency in avoiding the need to brief fresh counsel, and the minimisation of costs was a matter in all parties’ interests), that was not a decisive factor in my decision to list the matter in May.  I listed the appeal as late as was reasonably practicable in May, and only provisionally, recognising that if I recused myself, it would not proceed at that time.

28. In my view there is nothing in the way that I dealt with that question or otherwise conducted myself during the hearing that might cause a fair-minded lay observer to apprehend that I might not bring an impartial mind to the future conduct or substance of the matter.

29. As it happens, the resolution of the question of whether I should hear the appeal has taken some time.  I will hear the parties as to whether the appeal should be deferred and heard by me in June.

30. Towards the end of the hearing, I alerted the parties to a recent decision in an appeal concerning a refusal by a magistrate to recuse herself.  This was the decision of Hughes J in Hanna v Flinders University.[4]  It addressed, amongst other things, whether the decision by a magistrate in declining to accede to a recusal application was a judgment or order which was capable of being appealed.  I drew this to the parties’ attention because I considered that it was a matter that would inevitably arise on the hearing of the appeal.  That is because, as I explained at the hearing, a court, including a court exercising appellate jurisdiction, must satisfy itself of its own jurisdiction, whether or not raised by a party.[5] 

    [4] The reference I gave was to [2025] SASC 6 (not the earlier Court of Appeal decision: Hanna v Flinders University [2024] SASCA 127).

    [5]     The ‘first duty’ of any court is to be satisfied of its own jurisdiction: QYFM at [27] (Kiefel CJ and Gageler J), referring to Re Nash (No 2) (2017) 263 CLR 443 at [16] and Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 at 415.

31. With respect to Mr Lauro’s submission, it may not be correct to describe the decision as a ‘recent legal development’.  Justice Hughes’ decision draws upon a number of previous authorities.  I do not consider I was obliged to raise the authority in advance of the substantive hearing.  However, it being the most recent decision of which I was aware in this Court concerning that question, I did so to assist the parties.  I did not suggest or indicate that I had a preconceived view about its correctness or application.  Indeed, I noted that earlier in these proceedings McDonald J allowed an appeal in respect of a recusal application that had failed at first instance.[6]  Nor, in context, was my drawing the authority to the parties’ attention an indication that I had pre-determined that I would not recuse myself.  I made clear I was yet to decide that question.

    [6]     Lauro v Minter Ellison (A Firm) [2024] SASC 48.

32. To the extent that Mr Lauro has a concern about my raising the authority (at all, or after fixing a provisional date for the appeal), I do not consider that doing so might have caused a fair-minded lay observer to form the relevant apprehension.

33. In his written submissions, one further matter has been raised by Mr Lauro, in these terms:

    Intimation—purportedly based on the Court’s limited jurisdiction on appeal at first instance—that he would not entertain making Orders under the provisions of the Uniform Civil Rules 2020 (SA), which permit a party to require another party to be joined in the name of a partnership to disclose the name and address of each partner at the relevant time;

34. During the hearing, Mr Lauro mentioned that he might file a formal application to require Minter Ellison to disclose details of the partners of the firm at relevant times.  I was not asked to decide that application during the hearing, nor, if it was contentious, would I have done so prior to resolving whether I should recuse myself.  Whilst I expressed a doubt as to whether the foreshadowed application was an appropriate matter to be dealt with in the context of the appeal, as distinct from in the underlying proceeding, I immediately qualified that observation by indicating that I had not formed any concluded view about that.  In my view, the interaction was not one that might cause a fair-minded lay observer to entertain a reasonable apprehension that I might not bring an impartial mind to the appellate proceeding.  I add that an application has now been filed in relation to this issue.  It will be dealt with on its merits.

    Familial connection with former Chief Justice Doyle

35. Mr Lauro submits that:

    16.1at a Full Court callover hearing in 2011, owing to the reluctance and failures of his then legal representatives, the Appellant was forced to intervene and make his own submissions, complaining about the then Chief Justice’s inexplicable indulgence toward the party (‘AT’) against the Appellant;

    16.2AT was represented by the law firm of Kelly & Co and by Mr Sam Doyle of counsel, as he was then;

    16.3grievously, bolstered by the indulgence complained above, Kelly & Co then attempted to pursue frivolous and vexatious legal action for AT, which action had no merits and did not materialise, but caused the Appellant not insignificant additional legal costs.

1. I have no knowledge of the circumstances of the callover to which Mr Lauro refers and there is no evidence before me about these matters.  Even if I assume it to be correct that the then Chief Justice afforded an inexplicable indulgence to a party opposed to the appellant, I do not consider that whatever occurred in the course of what could only have been a procedural hearing might suggest that I might not bring an impartial mind to the resolution of an unrelated dispute, nearly fourteen years later. 

2. In order for there to be a logical connection between those events and my approach to the present matter, it would be necessary to apprehend that the then Chief Justice not only formed or held a view that was adverse to the appellant, but that this was communicated to or became known by me, that I in some way adopted that view, and that that view might colour my approach to the determination of the present matter.  I have no memory of ever having been aware of the events described by Mr Lauro. 

3. Even if I could not exclude the possibility that my memory is fallible in this respect, I regard the possibility that any awareness I ever had of the circumstances of the callover has led to me forming a view that might guide my resolution of the issues to be resolved in connection with this appeal as speculative. 

4. I will address separately the issue about a complaint or complaints about the conduct of the former Chief Justice Doyle.

   Familial connection with Justice S Doyle

5. As relates to my brother, Justice S Doyle, Mr Lauro contends that, in addition to the matters described above:

   17.1as noted above, in 2018, he was counsel for AT, and the vehement line of attack adopted in Court (including prejudicial challenges suggesting that the Appellant was not unfit) led to the Appellant suffering a heart attack and being declared a person under a ‘legal disability’ (a status that persists to this day).

6. Justice S Doyle was appointed to the Supreme Court on 18 December 2015.  The reference to 2018 is therefore in error.  Mr Lauro has subsequently clarified that he intended to refer to 2008.  There is no evidence before me about the events, but the reasons for judgment in the AT matter do refer to the trial being adjourned in consequence of further concerns as to the state of health of the appellant who had been admitted to the cardiology ward of the Royal Adelaide Hospital, and the subsequent appointment of Mr Lauro as litigation guardian.[7] 

   [7]     Tropeano v Lauro [2010] SADC 113 at [29] (Beazley DCJ).

7. However, if I assume that he engaged in a vigorous cross-examination or criticism of the appellant in the course of the trial, and even if I assume that it contributed to the appellant suffering a health condition, it remains to be considered whether this might, in the eyes of a fair-minded lay observer, cause them reasonably to apprehend that I might decide this appeal other than by reference to my assessment of its true merits.   

8. In order for an apprehension of a fair-minded observer to be reasonable, the fair-minded observer is to be attributed, at least to some extent, with an understanding of the basic elements of the judicial function and the legal system in which solicitors and barristers work.  In saying that, they are not assumed to have a detailed knowledge of the law or an awareness of the process that ordinary experience would suggest not to be the case.[8] 

   [8]     QYFM at [48] (Kiefel CJ and Gageler J).

9. It has been observed that a fair-minded observer should be assumed to understand, in general outline, the way in which barristers carry out the work that they do, upon the instructions of solicitors, for clients.[9] 

   [9]     S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at 379-380 (Priestley and Clarke JJA).

10. For that reason, vigorous participation in a matter in the pursuit of a client’s interests would not usually be taken to reflect or manifest any personal views of the client’s barrister.  In such cases, the fair-minded observer would not necessarily form a relevant apprehension about that counsel’s capacity for neutrality in a future matter involving one of the parties to that action.  As Livesey J observed in Contract Mining Services Pty Ltd v Adelaide Brighton Cement Ltd:[10]

    the fair-minded lay observer may be taken to know that barristers will advise and represent a number of clients and call a number of witnesses on instructions from solicitors in the course of practice. There is no reason to think that, in the event of appointment as a judge, that former association, without more, gives rise to the requisite apprehension.

    [10] [2020] SASC 69 at [66].

11. However, as illustrated by the decision in that matter, and indeed the majority view in QYFM, all factors need to be considered, including the nature and extent of any commonality between the two litigious controversies, the nature of the task likely to be carried out by the judicial officer in the second matter, and the recency of the involvement which is said to give rise to the possible apprehension. 

12. Although she was in dissent as to the outcome, the observations of Gleeson J in QYFM illustrate the fact-sensitivity of the required approach:[11]

    The fair-minded lay observer will appreciate that the mere fact that a judge, as a barrister, had some connection with parties who come before him or her does not necessarily attract such a reasonable apprehension as to require the judge to disqualify himself or herself. In considering whether a previous connection, with a party or between a judge's involvement in two proceedings, creates the requisite "logical connection" for the purposes of the Ebner framework, the observer will consider all features of the connection, including the nature, duration, intensity and proximity of the association between judge and party. Relevant factors include: (1) whether the correctness or appropriateness of a decision taken in earlier litigation by the judge, then counsel, is in issue in the case assigned to the judge, so that the judge is effectively being asked to evaluate their own prior conduct; (2) the commonality of facts, evidence and remedies between the earlier litigation and the case assigned to the judge; (3) the passage of time between the earlier litigation and the case assigned to the judge; and (4) any commonality between the parties to the earlier litigation and the case assigned to the judge.

    [11] (2023) 279 CLR 148 at [256] (Gleeson J).

13. Here, the logical connection is one step removed, involving, as it does, an objection not to the involvement of counsel in the earlier case but to the involvement of their sibling.  However, considering those factors: (1) whilst there may be an implicit criticism of Justice S Doyle’s conduct as counsel in the earlier case, there will be no occasion in dealing with this appeal to consider that question; (2) there is no commonality of facts, evidence or remedies between that litigation and this appeal; (3) there is a significant passage of time between those events and the current appeal; and (4) the commonality of parties does not extend beyond the involvement of the appellant. 

14. The nature of the task that the judge who hears this appeal will need to undertake is also relevant. Assuming for present purposes that the appeal is competent in the sense that the Auxiliary Associate Justice’s decision not to recuse herself was a ‘judgment’ (within the meaning of s 50 of the Supreme Court Act 1935 (SA)), the essential task of the court on appeal will be to determine whether her Honour erred in her application of the test for disqualification for bias. That is not a matter that is inherently likely to turn on any consideration of the credibility or character of the appellant or Mr Lauro. This is not a decisive consideration in the present context, but it is to be borne in mind in the ultimate application of the ‘double might’ test.

15. Mr Lauro informs me that in 2021, Justice S Doyle did not require a formal application and ‘effectively recused himself’ from a matter that otherwise might have been heard by him.  I will assume that is so, but it is a different question whether, in 2025, I should hear an appeal involving a relatively discrete question involving the appellant.

16. Of course, the familial connection can be described as a ‘first degree relationship’.[12]  The authorities recognise that a first degree relationship with a solicitor who is connected in some way to, but does not have the conduct of, the particular matter may not be sufficient to establish a reasonable apprehension of bias.[13]  The decision in Smits v Roach[14] is illustrative of the nuance that may be involved.  But the position is different where the first degree relationship is with a person who is not involved in the relevant proceeding, and whose only involvement was in a previous proceeding involving different parties.

    [12]   Guide to Judicial Conduct, published for the Council of Chief Justices of Australia and New Zealand by the Australian Institute of Judicial Administration Incorporated (2017, 3^rd ed) at [3.3.4].

    [13]   Viscariello v Tamasauskas (No 2) [2019] SASC 40 at [69], Lawrie v Lawler [2015] NTSC 40, Attorney-General (NT) v Director of Public Prosecutions (2013) 166 NTR 1 at [39], Dixon v Cargill Meat Processors Pty Ltd [2009] NSWSC 101, Willoughby City Council v Transport Infrastructure Development Corporation [2008] NSWLEC 231, Duke Group Ltd v Pilmer (No 3) [2001] SASC 215 at [65].

    [14] (2006) 227 CLR 423 at [44]-[49].

17. The logical connection, if there is one, would have to be that a fair-minded observer might apprehend that whilst acting as counsel in the earlier litigation, Justice S Doyle formed an unfavourable view of the character of the appellant or Mr Lauro which came to be adopted by me (in effect, on the grounds of familial loyalty) and, further, that the view was of a kind that might cause me consciously or subconsciously to favour their opponent in later and unrelated litigation over a decade later.   

18. Mr Lauro refers to the fact that prior to 2008, my brother was retained in a long-running matter in which I was also involved, as an employed solicitor, at Kelly & Co.  In a handful of other matters, first as a solicitor, and later as a barrister, I acted in matters in which my brother was retained.  In my view that professional association with him does not materially add to my obvious and clear familial connection.

19. If the question is whether there was an opportunity for any adverse view of the character of the appellant or Mr Lauro to have been communicated to me, it can be accepted that such an opportunity existed by virtue of our interactions as siblings, and apart from any interactions in a professional context.

20. I do not however recall any such view being conveyed to me, nor do I recall myself ever forming or adopting a view about the character of the appellant or Mr Lauro.  Given the passage of time, I cannot eliminate the possibility that I was at the time aware of the fact, or some aspect, of a trial in which my brother was participating as counsel.  It is, however, speculative that any personal view about the appellant’s character, or any aspect of the case (much less one which might not be learned by reading the reasons for judgment in the case), was conveyed to me and led to me forming a conscious or subconscious adverse view of the appellant or Mr Lauro that, in turn, might colour my approach to an appeal arising out of unrelated litigation fifteen or more years later.

21. Standing alone, my familial connection to Justice S Doyle, coupled with the contentions as to his previous involvement in a matter against the appellant, does not cause me to be satisfied of the ‘double might’ test.

22. I will address separately the issue concerning a complaint or complaints about the conduct of Justice S Doyle (as counsel).

    Professional association with Kelly & Co

23. I was employed by Kelly & Co as a solicitor between 2004 and 2008.  I was not a partner of the firm.  I had no involvement in any matter at Kelly & Co involving Mr Lauro or his family.  If the firm had any involvement in such a matter during that period, I have no knowledge of the circumstances.  The firm no longer exists. 

24. I was briefed by Kelly & Co in a number of matters after joining the independent bar, and prior to a number of the partners and solicitors of that firm becoming part of HWL Ebsworth (‘HWLE’) in 2014.  After 2014, I acted in matters in which I was instructed by HWLE and, in other instances, in matters where the other party was represented by HWLE.  I did not, however, form and I have no relevant association with that firm.

25. Mr Lauro contends that Kelly & Co ‘attempted to pursue frivolous and vexatious legal action for AT, which action had no merits and did not materialise, but caused the Appellant not insignificant additional legal costs’.  There is no direct evidence of these matters, but if I assume for the purposes of this application that they occurred as described, the mere fact that I worked at that firm before the relevant events occurred does not disclose a logical connection between any view that might be attributed to the practitioners employed by Kelly & Co in matters concerning the appellant and any views I might hold.

26. To the extent that Mr Lauro’s concern is that my association with Kelly & Co may have resulted in a member of that firm telling me some piece of prejudicial information about the appellant or Mr Lauro, that is speculative, and did not, to my knowledge or recollection, in fact occur.

27. During the time period in question (around 2011), my interactions with Kelly & Co would have been in relation to matters in which a solicitor of that firm briefed me.  Even if a solicitor briefing me was also involved in the matter involving the appellant, I do not consider that a fair-minded observer might reasonably apprehend that they would have had occasion to discuss the matter with me in any way that might cause me to form personal views of an enduringly prejudicial kind.

    Professional association with Minter Ellison

28. Based on searches, Mr Lauro has identified some nine decisions, mostly in the workers compensation jurisdiction, in which I appeared on instructions from Minter Ellison.

29. He correctly surmised that these are not the only matters in which I appeared on instructions from Minter Ellison.  As I subsequently disclosed during a hearing, whilst I have no readily available complete list, I would estimate that I have been involved in dozens of other matters on instructions from Minter Ellison during the period between 2008 and 2024, when I was a barrister at the independent bar.

30. Many of those were outside the realm of workers compensation, such as motor accident matters, liability insurance matters, and general commercial litigation.

31. Barristers accept briefs in accordance with the ‘cab rank’ rule.  They are retained by solicitors, but to act for clients.  A barrister does not act ‘for’ the law firm retaining him or her.  A barrister has no greater ability to choose their instructing solicitor than they do their client.  As a matter of fact, some barristers do undertake a high proportion of their work on the instructions of particular firms, and in some cases a close association may arise that may give rise to a relevant apprehension of bias.

32. However, barristers typically act in matters on the instructions of a number of firms.  That was so in my case.  Whilst I acted in many matters on the instructions of Minter Ellison, that firm was not the predominant (or even a significant proportion) source of my work.  I had no greater involvement in matters on instructions from Minter Ellison than I had with a number of Adelaide-based firms.  I relatively often acted in matters against clients who were represented by Minter Ellison.  I do not consider that the nature of my work on instructions of Minter Ellison was of a kind that a fair-minded observer might reasonably apprehend might cause me to favour, consciously or unconsciously, that firm as a litigant in a case before me.

33. I have separately considered whether my wife’s former employment by Minter Ellison might give rise to a perception that I might not bring an impartial mind to bear in a matter involving that firm.  I consider that it does not.  It can be accepted that lawyers who acted for Minter Ellison in relation to the matters concerning the appellant were employees or partners of that firm at the same time that my wife was an employee, but my wife never worked as a lawyer at the firm.  She was a salaried employee involved in marketing and business development.  She has no particular ongoing association with the firm.  As may be expected given the size of the firm and the passage of time, there has been a not insignificant change in the composition of the firm in the six or so years since her employment ended.

34. Neither through my wife’s past employment, nor by reason of my professional interactions as a barrister with Minter Ellison, have I formed any personal association or affiliation with the firm or its partners.

35. There is no factor concerning my past interactions with Minter Ellison that might lead me to decide the appeal other than by reference to my assessment of its merits, nor one which a fair-minded lay observer might reasonably apprehend might cause me to deviate from the merits.

36. That is particularly so in circumstances where, having regard to the nature of the issues I might have to consider in deciding the appeal, there is unlikely to be any occasion to examine the conduct of any employee or partner of Minter Ellison.

    Further matter: complaints

37. The written submissions handed up by Mr Lauro on 12 May 2025 included the following paragraphs:

    9.     Vindication and Perception of Bias

    9.1    Although his Honour has not previously adjudicated matters involving the Appellant, if he refuses recusal and subsequently dismisses the underlying appeal (which involves review of a master’s decision), the sequence could appear as self-vindication—particularly as his Honour would have made two decisions adverse to the Appellant.  This scenario is likely to lead to further appellate proceedings.

    9.2    Moreover, a fair-minded lay observer might reasonably perceive that his Honour is vindicating, even if only symbolically, his father and brother, both of whom had past interactions and complaints made against them by the Appellant.  This concern is not fanciful and reinforces the reasonable apprehension of bias.

38. In the course of the hearing at which the submission was handed up I indicated that I had not appreciated that the appellant was contending that there had been formal complaints made about the conduct of my brother or my father.  I sought confirmation as to the factual basis for the submission.

39. I indicated that in order to consider the relevant test through the prism of the fair-minded lay observer, there needed to be clarity about the events that would be imputed to that observer.  In response, Mr Lauro went on to say:

    Well, what is certain is that a complaint was raised, let’s say, there and then at the callover.  … So, the complaint started there and then, if I can put it this way, that’s in relation to the callover.  In relation to the other situation involving your Honour’s brother, as I’ve said, a complaint was raised by me, maybe in quite soft terms, about why his Honour was handling this case.  And as I said, there was a definite outcome of that.

40. I indicated to Mr Lauro that if it was being submitted that I should proceed on the basis that, in addition to any complaints voiced during the callover, or subsequently about the allocation of Justice S Doyle to a matter involving the appellant, there had had been a formal or external complaint about the conduct of the former Chief Justice or Justice S Doyle, it needed to be the subject of evidence. 

41. The respondent’s counsel submitted that if there were to be evidence about any such complaints, the evidence should come from the party who made and could actually speak to the existence, substance or outcome of the complaint(s).

1. Whilst I declined to direct the appellant as to the precise form of any evidence that might be filed, I explained to Mr Lauro that if I were to take a matter into account, I would need to be satisfied to an appropriate level of its accuracy, and that the appellant should bear in mind the respondent’s submission and address the matters as directly as possible, so as to provide an evidentially secure foundation for my consideration of any issue of actual or apprehended bias.

2. Mr Lauro affirmed an affidavit on 19 May 2025.  In paragraphs 2 and 3, he affirmed that:

   2.In addition to complaints directly made to the former Justice John Doyle and Justice Sam Doyle as set out in the Appellant’s submissions, at least another was made to the Chairman of the Courts Administration Authority-cum-current Chief Justice of the Supreme Court in or about early 2016.

   3.     The latter complaint deals with conduct and conflict of interest matters and also:

   3.1    listed the former Chief Justice as well as both his sons, now Justices Sam and Ben Doyle, by association with the relevant Respondent, MinterEllison;

   3.2    was submitted to the Legal Practitioners Conduct Commissioner (LPCC) and the Attorney-General’s Department, and then to the Ombudsman SA.

3. The affidavit does not identify the basis of Mr Lauro’s knowledge of these matters.  The words ‘at least’, in paragraph 2, suggest a degree of uncertainty.  In circumstances where, during the earlier hearing, he did not profess a personal knowledge (or at least, an unassisted recollection) of the detail of the complaints, I would not be inclined to read the affidavit as recounting his memory.  The affidavit does not adopt the form of reliance upon information provided by another person who the deponent believes.

4. Later in the affidavit, Mr Lauro affirmed that:

   9.In so far as the outcome of my father’s conduct complaints are concerned, it is my understanding that the LPCC suspended the complaints[15] in line with its practice of not doing so when proceedings between relevant parties remain afoot.  …

   10.It is also my understanding that relevant complaint issues were raised with the Independent Commission Against Corruption (ICAC) and the Office for Public Integrity (OPI) upon their establishment.

   11.Due to secrecy provisions under the legislation that governs the aforementioned authorities, I understand no details of matters raised with them can ordinarily be disclosed.

   [15]   These words were not contained in the affidavit, but Mr Lauro has explained by a subsequent email that he intended to include them.

5. The basis for the understanding referred to in paragraphs 9 and 10 is not set out.   In brief written submissions filed by the respondent, it was submitted that the affidavit material was inadmissible or inadequate to demonstrate a factual basis relating to any complaints.

6. In further submissions filed on 21 May 2025, Mr Lauro submitted, variously, that:

   ·‘the complaints’ were made by the appellant and Mr Lauro;

   ·the complaints made directly to Chief Justice Doyle were made orally by the appellant ‘at January 2001 callover’ (presumably this should have been a reference to January 2011);

   ·the complaints made directly to Justice S Doyle were made orally by the appellant (when Justice S Doyle was a barrister) and later by Mr Lauro at a listings hearing before Justice S Doyle on 14 May 2021;

   ·the March 2016 complaint was a ‘written and standing complaint’.  Mr Lauro has said that it operated ‘as an extension of prior oral ones’, deals with ‘conduct and conflict of interest matters’ and extended to me ‘by reason of [my] association with Minter Ellison’;

   ·Mr Lauro’s understanding as to the LPCC’s practice is ‘knowledge that any legal practitioner would necessarily possess’.

7. Apart from the difficulty in acting on submissions, as distinct from admissible evidence, the further submissions do not, in my view, materially assist in identifying further matters of significance that might cause a fair-minded observer to consider that I might deviate from a consideration of the merits of the appeal.

8. If an oral complaint was made to Chief Justice Doyle during the callover, it can only have reflected disquiet about the procedural order about which the appellant was evidently dissatisfied.  I have already concluded that even if the order could be criticised (and I have no evidence about that), a fair-minded lay observer would not hold a concern about my hearing an appeal between different parties over a decade later.

9. If there were complaints in 2016 that operated as ‘extensions’ of prior complaints, they presumably related to conduct of Chief Justice Doyle or Justice S Doyle (when he was a barrister) that I have otherwise considered (to the extent the evidence permits).

10. The fact that the underlying concern(s) of the appellant or Mr Lauro may have prompted a complaint to the current Chief Justice does not of itself establish a reason why I might be unable to bring an impartial mind to this appeal.

11. Indeed, even where there is no doubt that a complaint has been made against the very judicial officer who is considering self-recusal, it does not follow that the judicial officer should recuse themselves.  In CM v Secretary, Department of Communities and Justice,[16] Macfarlan, Brereton and McCallum JJA said:[17]

    Complaints by a litigant against a judge, which are unsubstantiated, and indeed unidentified as to their contents, cannot entitle the litigant to have the judge disqualified from hearing the litigant’s cases.  To hold otherwise would effectively entitle the litigant to veto judges at will.

    [16] [2021] NSWCA 244.

    [17] [2021] NSWCA 244 at [8].

12. In some cases, the conduct of the judicial officer after being informed of the fact of a complaint against them may cause a fair-minded observer to think that the judicial officer is aggrieved and no longer impartial (without the fair-minded observer having formed any view as to the substance of the underlying complaint).  But in the present case, even if the evidence were clearer about the fact or nature of the complaints, there is no suggestion that any person is aggrieved by the fact of the complaints described.

13. Moreover, there is, in my view, no sufficient reason for a fair-minded lay observer to consider that I might, out of a sense of familial loyalty, have become aggrieved, or that I might consciously or subconsciously wish to vindicate their positions.    

14. The suggestion that I was ‘listed’ in the March 2016 complaint does not, in my view, take the matter any further, even if I accept that to be the fact.  I have not been notified of any complaint about me by the appellant, who I have never met.  I have suffered no consequence or inconvenience as a result of being listed or referred to in any such complaint.

15. To the extent that there was some complaint made about my conduct prior to 2016, it would presumably have been raised before me on this recusal application.

16. If I was referred to in a complaint based upon an association with Minter Ellison, this cannot rise any higher than my consideration of whether any association I have or have had with Minter Ellison is a ground for recusal.  For reasons I have given earlier, there is no such relevant association.

17. To the extent that any complaint made to the current Chief Justice was also forwarded to the other external bodies mentioned, again, even if there were admissible evidence of this, there is no detail provided about the substance or status of the complaints that would permit a fair-minded lay observer to hold a concern about my participation in this appeal.

18. On its face, it seems somewhat improbable that any external body would remain seized of a complaint about Chief Justice Doyle’s conduct of a callover in 2011.  If and to the extent that the LPCC received a complaint about the conduct of Justice S Doyle whilst a barrister, it was not in relation to the litigation between the appellant and the respondent.  It is therefore not apparent why, even if it be the LPCC’s practice to suspend an investigation whilst the litigation in question is incomplete, a complaint made in 2016 would remain extant.

19. By making these observations I do not express any views about the merits of any matters of concern that the appellant raised in any complaint.  My purpose is simply to identify why, in the absence of direct and admissible evidence about the underlying facts and circumstances concerning complaints, it is not possible for me to attribute to a fair-minded lay observer relevant knowledge of these matters.

    Disposition

20. I do not consider that there is a logical basis or connection between the matters relied upon by the appellant and my involvement in the case such as might cause a fair-minded lay observer reasonably to apprehend that I might not bring an impartial mind to the appeal.

21. It is appropriate to consider all of the matters Mr Lauro has raised in combination.  I have done so, but I am not persuaded that together they give rise to or strengthen a logical connection that satisfies the ‘double-might’ test.

22. Mr Lauro urges me to have regard to instances where he states that other judges have declined to sit in matters involving the appellant without the need for the ‘traditional logical connection to exist’.  That may or may not be so, but I am bound to apply the law with respect to disqualification for bias.  I must form a view as to the view that a fair-minded lay observer might form.

23. For the same reason I am not assisted by Mr Lauro’s submission that, some time ago, and by reference to my personal association with Chief Justice Doyle and Justice S Doyle, the firm of Grope Hamilton Lawyers apparently advised the appellant against briefing me in an earlier aspect of this matter.  Even if the circumstances were the same as those now arising, I must form my own view, with reference to the reasonable apprehension of a fair-minded lay observer.

24. I have borne in mind that in cases of ‘real doubt’ a judicial officer may adopt a prudent or cautious approach even though not positively persuaded that the test for disqualification is satisfied, at least where the case can conveniently be re-allocated, and with a view to avoiding the inconvenience that might arise if an appellate case were to take a different view of the matter of disqualification.[18]

    [18]   QYFM (2023) 279 CLR 148 at [279] (Jagot J), referring to Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 at [20] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

25. However, I do not consider that this case is in that category.  I decline to recuse myself.  I will hear the parties as to the appellant’s recent interlocutory application and what I take to be Mr Lauro’s informal request that the hearing of the appeal, provisionally listed for 30 May 2025, be deferred.