Luck v Nell (Ruling)

[2023] VCC 1622

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

APPEALS AND POST SENTENCE APPLICATIONS LIST

Case No. AP-21-0233

GAYE LUCK	Appellant
v
ANNA NELL	Respondent

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JUDGE:	HER HONOUR JUDGE ROBERTSON
WHERE HELD:	Melbourne
DATE OF HEARING:	4 August 2023
DATE OF RULING:	17 August 2023
CASE MAY BE CITED AS:	Luck v Nell (Ruling)
MEDIUM NEUTRAL CITATION:	[2023] VCC 1622

RULING
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Subject:Application for recusal

Catchwords:              Practice and procedure – application for recusal – apprehended bias – where judge declined to make orders sought – no reference in orders to non-appearance by respondent – inclusion in orders of alleged medical information 

Legislation Cited:      Personal Safety Intervention Orders Act 2010

Cases Cited:AAA v County Court of Victoria & Ors [2023] VSC 13; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; Isbester v Knox City Council (2015) 255 CLR 135 ; MZAOL v Minister for Immigration and Border Protection [2019] FCAFC 68; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65; Johnson v Johnson (2000) 201 CLR 488; Minister for Immigration and Multicultural Affairs, Re; Ex parte Epeabaka (2001) 206 CLR 128; Re JRL; Ex Parte CJL (1986) 161 CLR 342.

Ruling:  Appellant’s application for recusal dismissed

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APPEARANCES:	Counsel	Solicitors
For the Appellant	The appellant appeared in person (via Zoom)
For the Respondent	The respondent appeared in person (via Zoom)

HER HONOUR:

1By Notice of Appeal dated 3 March 2021, the appellant appealed against the decision of the Magistrates’ Court at Frankston made on 26 February 2021, refusing to grant a personal safety intervention order to her pursuant to the Personal Safety Intervention Orders Act 2010.

2Both the appellant and the respondent are self-represented.

3At a directions’ hearing at which both parties were present, held on 4 August 2023 via Zoom hearing for the purpose of case managing the proceeding, the appellant made application to me, as the judge hearing the directions hearing, to recuse myself for apprehended bias in relation to an earlier decision made by me not to amend an order made by the Court on 29 November 2022.

4The appellant filed a written submission on the morning of the directions hearing, identifying that her reason for seeking recusal was in relation to the order made by me on 29 November 2022. The written submission relevantly provided:

“1.    …

2. I wish to address the issue of my apprehension of your bias by your Honour in relation to the making of the order on 29 November 2022, whereby you referred only to my non-appearance and cited my personal medical information in the orders, for which I have sought by correspondence on 30 November 2022 and 5 and 6 December 2022 to the Principal Registrar and the Chief Executive Officer and copied to your Chambers of the County Court, to amend, by removal of those personal details from the orders and the inclusion of the fact that the respondent did not appear at the hearing on 29 November 2022 without notice to the Court.

3.    I make application for your Honour’s recusal from this matter.

4.    … .”

5For the following reasons, the appellant’s application that I recuse myself was refused.

Background

6The appellant’s appeal has had an extensive history.

7It has been case managed by various judges in this Court.

8The appeal was originally listed for hearing on 26 July 2021.  On 20 May 2021, her Honour Judge Hinchey vacated the hearing date and re-listed the appeal hearing to 5 August 2021.

9On 5 August 2021, the matter came on for hearing before his Honour Judge Lauritsen, who ordered that the matter be adjourned to 27 September 2021 for further appeal hearing.

10On 24 September 2021, the appellant communicated with the Court that she had lodged an application for removal of a cause with the High Court of Australia.  The appellant also made an application for a stay or adjournment of the appeal hearing.

11Following that correspondence, on 27 September 2021, his Honour Judge O’Neill adjourned the matter again for an administrative mention on 8 March 2022, pending determination of the appellant’s matter by the High Court of Australia.

12From 8 March 2022, pending the outcome of the litigation in the High Court of Australia, the matter was case managed by Judicial Registrar Bales.

13On 3 November 2022, the appellant informed the Court, in correspondence, that the matters that had been pending in the High Court of Australia had been determined and dismissed, and she wished to proceed with her appeal.  This was confirmed at a hearing before Judicial Registrar Bales on 10 November 2022.  On that day, Judicial Registrar Bales listed the proceeding for a directions’ hearing before me on 29 November 2022.

The 29 November 2022 hearing

14The directions’ hearing on 29 November 2022 was listed as both an in-person and a Zoom hearing.  A Zoom link was sent to the parties on 28 November 2022.

15Shortly before the hearing was to commence, the appellant sent an email to the Court, indicating she was unable to proceed with the hearing that day due to being unwell.  Her email attached a medical certificate, and she sought an adjournment of the hearing.

16Upon receiving the appellant’s correspondence, and based upon that correspondence, the Court determined it was appropriate to grant the adjournment application immediately, without proceeding to a hearing that day.  The parties were notified of this.  Orders were made “on the papers” adjourning the matter for further directions’ hearing on 7 December 2022, and providing that any further application was to be supported by affidavit filed by 4.00 pm on 5 December 2022.  A notation was made in the “Other Matters” section of the Order that the appellant failed to appear and provided a medical certificate from her medical practitioner.

Subsequent procedural orders

17After the Orders were distributed to the parties, the appellant requested amendment of the Orders.  She suggested the Orders made on 29 November 2022 needed to reflect that the respondent had not appeared at the hearing and that they also needed to delete reference to what she alleged was her personal medical information.

18The Court declined to amend the Orders.

19At the outset of the subsequent directions’ hearing on 7 December 2022, the appellant made application for me to recuse myself from the matter on the basis that the failure by me to amend the Orders constituted apprehended bias and/or discrimination on my part.  I explained to the parties that my immediate role was to case manage the proceeding.  I indicated that I proposed only to make timetabling orders, and that the final hearing of the appeal would proceed before a different judge.  Consequently, a fair-minded observer would not apprehend that I might not be impartial.  The appellant agreed that I could continue and make timetabling orders.

20Orders were then made timetabling interlocutory steps and listing the matter for final hearing.

21Following the decision of Dixon J in AAA v County Court of Victoria & Ors[1] on 31 January 2023, the Court determined that all appeal hearings of intervention order matters in the County Court were to be re-timetabled and re-listed.  Consequently, the hearing of the final appeal in this matter was once again adjourned.

[1] [2023] VSC 13 (“AAA”)

22Ultimately, the matter came on for further directions’ hearing before me on 4 August 2023.  On that occasion, the appellant made a second application that I recuse myself.

23I declined the appellant’s application.

Legal principles

24The principles governing an application for a judge to recuse him/herself are well known.  If a fair-minded lay observer might reasonably apprehend that a judge might not bring an impartial mind to the resolution of the question which must be decided by the judge, a judge should recuse him/herself.[2]

[2]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, paragraph [6] (per Gleeson CJ, McHugh, Gummow, Hayne JJ)

25To determine this issue, the High Court has identified what the application of the apprehension of bias principle requires:[3]

“… 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.”

[3](Ibid), at paragraph [8]; Isbester v Knox City Council (2015) 255 CLR 135 at [21] (per Kiefel, Bell, Keane and Nettle JJ); MZAOL v Minister for Immigration and Border Protection [2019] FCAFC 68 at paragraphs [82]–[83] (per Bromberg, Farrell and Davies JJ).

26In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[4] the High Court indicated that once those two steps have been undertaken, it is necessary to assess the reasonableness of that apprehension from the perspective of a fair-minded lay observer.

[4] (2023) 409 ALR 65

27The judge has a duty to discharge judicial functions subject to any valid reason justifying disqualification.  However, this does not warrant over-ready recusal, nor confer on a party an entitlement to choose among the judicial officers who will conduct a trial.[5]  As Mason J observed in Re JRL; Ex Parte CJL:[6]

“… It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party … In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be ‘firmly established’ (Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [(1969) 122 CLR 546 at 553–4]; Watson [at p 262]; Re Lusink; Ex parte Shaw [(1980) 55 ALJR 12 at 14; 32 ALR 47 at 50–1]). 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.”

[5]Johnson v Johnson (2000) 201 CLR 488 at 504 [45], 518 [80]; Ebner v Official Trustee in Bankruptcy (op cit) at 344 [6], 380 [137]; Minister for Immigration and Multicultural Affairs, Re; Ex parte Epeabaka (2001) 206 CLR 128 at 136 [21].

[6] (1986) 161 CLR 342 at 352

Appellant’s submission

28The appellant contends I should recuse myself because I refused to make the amendment orders sought by her.  Specifically, there were two alleged grounds for recusal which I consider below.

Lack of reference in Order made 29 November 2022 to Respondent’s non-appearance at directions hearing

29The first basis upon which the appellant contended I should recuse myself for apprehended bias was because I refused to accede to her request that I amend the order of 29 November 2022 to refer to the respondent’s non-appearance that day.  The appellant referred to the fact that I had noted the appellant’s, but not the respondent’s, non-attendance in the Order.

30There is no merit in the appellant’s first basis for the following reasons.

31First, a reasonable fair-minded lay observer would not reasonably apprehend bias in respect of the decision I made on 4 August 2023 not to recuse myself, based on the Orders made on 29 November 2022, in circumstances where those orders had been superseded by orders made following the decision in AAA.

32Second, the argument that a reasonable fair-minded lay observer would reasonably apprehend bias on 4 August 2023 lacked merit, in circumstances where the parties had already been informed on 7 December 2022 that I would not be the judge who would hear and determine the legal or factual merits of the appellant’s case at the final appeal hearing.

33Third, there is no basis to apprehend bias in the Orders made on 4 August 2023, based on a refusal to amend the Orders made on 29 November 2022.  The purpose of the hearing on 29 November 2022 was simply to case manage the proceeding and put in place orders timetabling the matter to the appeal hearing.  It was never intended that the hearing on 29 November 2022 would determine any legal or factual question between the parties.  Consequently, a refusal to amend such orders would likewise not determine any factual or legal issue.

34Fourthly, even if there was some question as to case management that I was to determine, the appellant’s submission is based on an incorrect factual assumption, namely, that the respondent did not appear on 29 November 2022.  In fact, because shortly prior to the hearing the appellant made an application for an adjournment and indicated she would not be able to attend, the directions hearing was adjourned, and the respondent was not required to attend.

35Fifthly, even if the respondent did not appear, and there was no reference made to that in the Order made on 29 November 2022, that would not justify recusal.  There is no logical connection between the omission of reference to the non-appearance of the respondent in the Order made on 29 November 2022 and an apprehension of bias by me in making the Orders on 4 August 2023.  The appellant did not articulate how she said it could have been apprehended, on 4 August 2023, by a reasonable fair-minded lay observer, that I would have acted contrary to the legal or factual merits of the dispute by reason of an earlier order referring to the non-appearance of the appellant and not of the respondent.  In those circumstances, there is no identified deviation from the duty of deciding the case on its merits.

36For each of the above reasons, even if the appellant subjectively considered there were grounds for an apprehension of bias, a reasonable fair-minded lay observer would not.

37The first ground for my recusal is dismissed.

Reference in Order made 29 November 2022 to alleged personal medical information of the Appellant

38The second alleged basis for my recusal was my refusal to amend the Orders made on 29 November 2022 to remove a particular aspect of the Orders which the appellant alleged was a reference to her personal medical information.

39The Order made on 29 November 2022 referred to the provision of a medical certificate, and previous medical certificates, and noted the name of the medical practitioner from whom they had been provided.  The Order did not refer to any specific medical information about the appellant.  There is, consequently, no foundation for the appellant’s contention that the Order should have been amended.  It is therefore not necessary to consider whether any failure to amend constituted grounds for my recusal.

40Even if it were to be necessary to consider whether my refusal to amend the Order constituted grounds for my recusal, refusing to amend the Order would not have been sufficient on its own to give rise to a reasonable apprehension of bias.  The appellant would still have been required to articulate how reference to personal medical information would have meant I would not have determined, impartially, the legal or factual merits of how best to case manage the hearing.  She did not do so.  Nor did she identify how it was said my refusal to amend the Order discriminated against her.

41The second basis for recusal is dismissed.

Conclusion

42For the above reasons, I dismissed the appellant’s application that I recuse myself.

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