Lowe v Pascoe (No 3)
[2012] NSWSC 907
•08 August 2012
Supreme Court
New South Wales
Medium Neutral Citation: Lowe v Pascoe (No 3) [2012] NSWSC 907 Hearing dates: 8 August 2012 Decision date: 08 August 2012 Jurisdiction: Equity Division Before: Gzell J Decision: Application dismissed.
Catchwords: PROCEDURE - Courts and judges generally - application that judge recuse himself - whether statement in judgment gave rise to reasonable apprehension of bias - whether fair-minded observer would so conclude Cases Cited: Lowe v Pascoe (No 2) [2012] NSWSC 885
ASIC v Rich [2004] NSWSC 970
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411
Kwan v Kang [2003] NSWCA 336
British American Tobacco Australia Services v Laurie [2009] NSWCA 414
British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283Category: Interlocutory applications Parties: Geoffrey Alan Lowe (First Plaintiff)
Mary Lowe (Second Plaintiff)
Scott Pascoe (First Defendant)
Margaret Sze Tu (Second Defendant)
Helen Sze Tu (Third Defendant)
Janet McNamara (Fourth Defendant)
Shiu Shing (Sunly) Sze Tu (Fifth Defendant)
Shie How (Gordon) Sze Tu (Sixth Defendant)Representation: Counsel:
C R C Newlinds SC with C H Withers (Plaintiffs)
J Stoljar SC (First defendant)
D Williams SC with J D Little (Fifth and sixth defendants)
Solicitors:
Holding Redlich (Plaintiffs)
Argyle Lawyers (First defendant)
CLS Legal (Fifth and sixth defendants)
File Number(s): SC 2005/262284
Judgment
Mr and Mrs Lowe, the plaintiffs, have asked me to recuse myself because of a statement made in my reasons for judgment in Lowe v Pascoe (No 2) [2012] NSWSC 885.
In that matter I concluded that five cash payments journals and a report of Jason J Murray of 18 January 2011 should be admitted into evidence in the fresh hearing, and I so directed.
In the course of my reasons, I recited the fact that Shiu Shing (Sunly) Sze Tu, the fifth defendant, found at least some of the journals in 2007 but made a deliberate decision not to produce them, having spoken with Margaret Sze Tu (Margaret), the second defendant, and Helen Sze Tu (Helen), the third defendant. He said that one or other of them said he should not produce the documents.
Sunly looked at the journals again in the course of the litigation before Smart AJ but decided not to produce them. He said he was advised by his then counsel that it was too late.
It was only when he changed solicitors that a third supplementary list of documents discovering the journals was served.
I said that those matters might have been determinative of an application to re-open. But while still significant, they were not so telling when a fresh trial had been ordered. I then said at [32]:
"And there are countervailing circumstances. The cash payments journals are predominately in the handwriting of Mrs Lowe who obviously knew of their existence yet she never mentioned them in giving discovery."
It was submitted that I had by such emphatic language pre-judged an essential matter in dispute that necessarily told against the credit of a key witness in the proceedings. It was submitted that this is what a fair-minded observer would conclude.
Just as I made no credit finding with respect to Sunly's non-disclosure of the journals, so I made no finding as to Mrs Lowe's credit. I stated a fact that I thought was not in dispute, that the journal entries were predominately in Mrs Lowe's handwriting. I drew an inference that she must have known of their existence and I stated another fact that she never mentioned them.
Mrs Lowe gave no evidence about whether she made any entries in the journals and she said that she was never involved in the day to day operations of Yee Sing Butchery (YS Butchery) but worked on the financial matters of Wing Yuen Tai Grocery (WYT Grocery). Three of the journals related to the YS Butchery business and two related to the WYT Grocery business.
It was submitted that no comparative samples of Mrs Lowe's handwriting were introduced into evidence. But the exhibits included books recording receipts of cheques and cash, some of the entries in which were identified by Mrs Lowe as in her handwriting.
And Margaret identified entries in the journals as in Mrs Lowe's handwriting. They are sisters.
Furthermore, in submissions to Smart AJ the statement was made and repeated on a number of occasions that the journals were predominantly in the handwriting of Mrs Lowe to which there was no challenge.
The first challenge came yesterday when senior counsel for Mr and Mrs Lowe suggested that they might need to retain a handwriting expert.
As Austin J pointed out in ASIC v Rich [2004] NSWSC 970 at [31], the plurality of the High Court in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 494 [15] insisted that the judge's remarks had to be considered in the context in which they were made. So, too, in this case where no concluded view on credit was expressed.
With respect to the fair-minded lay observer test, reference was made to the following authorities.
In Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 442, Mahoney JA, with whom Meagher JA agreed, said:
"[I]t is, in my opinion, proper to approach a question of this kind upon the basis that, where decisions of fact or credibility have been made, the pre-judgment principle will apply unless it appears that there is a 'necessity' for the judge to sit or that the case is 'an extraordinary case' or one which involves 'special circumstances'."
In Kwan v Kang [2003] NSWCA 336 the Court of Appeal said:
"86 It is not unknown for judges to make findings on an interlocutory issue and to express those findings in a way that indicates that they have come to a final conclusion. If that conclusion is as to a significant issue on which the ultimate result of the trial depends, and further evidence is still to be led and final addresses are still to be made, the likely consequence is that the judge concerned will have to disqualify himself or herself.
87 The reason for this is that a finding expressed in terms of finality, when made at an interlocutory stage, will usually give the impression that the judge's mind is made up. If the judge's mind is made up before evidence and final addresses are complete, it will mean that a conclusion has been unfairly arrived at. There is then likely to be an apprehension that, when the time comes to give final judgment, the judge might not be impartial or might be prejudiced against the party who was unsuccessful in the interlocutory judgment. It will then not merely be an apprehension that the judge will decide the case adversely against that party."
That is not the case here. The statement was made with respect to a matter not then in issue and there was no final conclusion with respect to credibility.
Reference was made to an observation of Allsop P in British American Tobacco Australia Services v Laurie [2009] NSWCA 414.
Allsop P dissented in that case but the majority of the High Court in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 upheld his judgment. The President had said at [11]:
"A trial judge persuaded in his or her mind of the fraud and dishonesty of a litigant and who, properly discharging the curial task before him or her, announces to the parties and to the world his or her conclusion as to that grave fact does more than merely find a relevant fact. The grave quality of such a finding by a trial judge and the necessity for the trial judge to be persuaded in his or her mind as to its truth informs my view that a fair-minded lay observer might reasonably think that a judge, who has been so persuaded, might not be able to a bring a mind free of the effect of the prior conclusion, so solemnly reached, to bear in dealing with the same issue in respect of the same party on a later occasion."
This case is distinguishable from the authorities relied upon by counsel for Mr and Mrs Lowe. There was no statement with respect to an essential matter in issue. The predominant handwriting in the journals was said to be that of Mrs Lowe without challenge until yesterday. There was no finding as to credit. An inference was drawn from the then non-contentious statement.
An essential issue and a concluded view found the basis for the fair-minded lay observer principle. Neither element is present in this case.
In my view, a fair-minded lay observer would not conclude that a reasonable apprehension that I might not be able to bring a free mind to bear on the evidence to be adduced and the submissions to be made in the fresh trial existed as a result of my statement at [32] of Lowe v Pascoe (No 2).
The application is dismissed.
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Decision last updated: 09 August 2012
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