McDonald v State of South Australia; McDonald v The Minister for Education and Child Development - [2015] SASC 141

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
MCDONALD & ANOR v STATE OF SOUTH AUSTRALIA; MCDONALD & ORS v THE MINISTER FOR EDUCATION AND CHILD DEVELOPMENT & ORS
[2015] SASC 141
Reasons for Decision of The Honourable Justice Nicholson
23 September 2015
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 hearing of proceedings still being dealt with at an interlocutory level.
Held: Application refused.
Workers Rehabilitation and Compensation Act 1986 (SA); Supreme Court Civil Rules 2006 r 53, r 200; Constitution Act 1934 (SA) Part 4; Supreme Court Act 1935 (SA) Part 1, referred to.
Stone v Moore [2015] SASC 46, (2015) 122 SASR 54; McDonald v Workers Compensation Tribunal [2013] SASC 34; McDonald v Department of Education and Children's Services [2011] SAWCT 36; McDonald v State of South Australia [2013] SASC 36; McDonald & Anor v State of South Australia [2015] SASCFC 15; Johnson v Johnson [2000] HCA 48, (2000) 201 CLR 488; Ebner v Official Trustee and Bankruptcy [2000] HCA 63, (2000) 205 CLR 337; Re JRL; Ex parte CJL (1986) 161 CLR 342; British Australian Tobacco Australia Services v Laurie [2011] HCA 2, (2011) 242 CLR 283; IFF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd [1999] SASC 249, (1999) 78 SASR 151; Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48, (2011) 244 CLR 427; The Queen v Moss; Ex parte Mancini (1982) 29 SASR 385; O’Conner v South Australia (1976) 14 SASR 187, considered.

MCDONALD & ANOR v STATE OF SOUTH AUSTRALIA; MCDONALD & ORS v THE MINISTER FOR EDUCATION AND CHILD DEVELOPMENT & ORS
[2015] SASC 141
Civil
NICHOLSON J.
Introduction

Francis McDonald is the first named plaintiff in proceedings originally filed in the District Court but transferred to this Court in 2013 with the file reference SCCIV-13-1574. Mr McDonald’s son, Brennan McDonald, is also a named plaintiff in those proceedings. There is an extant application by the plaintiffs for Mr McDonald’s wife, Rhoda McDonald, to be joined as third plaintiff. That application has not yet been determined. The named defendant to proceedings 1574 of 2013 is the State of South Australia.
Francis McDonald, Brennan McDonald and Rhoda McDonald are also named plaintiffs in proceedings filed in this Court bearing the reference SCCIV-14-1564. Rhoda McDonald has been a plaintiff to these proceedings from their inception. The four named defendants to these proceedings, as recorded on the plaintiffs’ statement of claim, are the Minister for Education and Child Development, Peter Mitchell, Sue Hyde and Don Mackie.
Both sets of proceedings are still being dealt with at the interlocutory stage and it is fair to say that the Court has become mired in a series of interlocutory disputes.
In essence, the statement of claim in each matter raises identical complaints. The proceeding in 1574 of 2013 was originally commenced in the District Court in 2005 and this provides an indication of the extent of the interlocutory disputation that has taken place. The plaintiffs and, in particular, Francis McDonald, are understandably extremely frustrated at the delay in having what they apprehend to be a proper claim brought to trial.
On 13 July 2015, the matter came before me, having been referred by the Master who had been managing the matter in this Court, with a view to hearing argument on procedural applications to be brought by the defendants in both matters. It became apparent that a number of other procedural steps would need to be taken before any such applications could be heard. Whilst no order has been made formally assigning me as case manager in this matter, I have, at least for the present, assumed a responsibility to manage the two sets of proceedings with a view to: resolving outstanding interlocutory disputes; limiting, insofar as practicable, further interlocutory disputes; and moving the matters forward to a final resolution.
The first issue to be dealt with, and the subject of these reasons, concerns an interlocutory application brought by Francis McDonald, Rhoda McDonald and Brennan McDonald, that I recuse myself from any further participation in the hearing of both matters. Due to some difficulties of no practical consequence, the interlocutory application has been filed in No. 1564 of 2014 (FDN 26 filed on 19 August 2015) but the supporting affidavit, sworn by Francis McDonald on 19 August 2015 is filed in No. 1574 of 2013 (FDN 69). It would be convenient if respective copies could be placed on both files. In any event, I will treat the interlocutory application that I be disqualified from further involvement as an application brought in each matter by the relevant plaintiffs in each matter.
The orders sought are in the following terms.
1.Judicial Officer Nicholson is not assigned as case manager in case SCCIV 13-1574 for the reasons outlined in the Affidavit of 19 August 2015.
2.Judicial Officer Nicholson is not assigned as case manager in case SCCIV 14-1564 for the reasons outlined in the Affidavit of 19 August 2015.
3.Judicial Officer Nicholson is not assigned as Appeal judge against the Orders of Master Dart in case SCCIV 14-1564 for the reasons outlined in the Affidavit of 19 August 2015.
4.The Supreme Court of SA assigns an independent judicial officer to deal with case SCCIV 13-1574 who has had no previous dealings with the case or with case SCCIV 29 of 2005 or case SCCIV 418 of 2004.
5. The same independent judicial officer assigned case SCCIV 13-1574 is assigned as case manager of case SCCIV 14-1564.
6.An independent Appeal judge is assigned to deal with an Appeal which may arise from case SCCIV 13-1574 who has had no previous dealing with this case or any manifestation of this case when it was case SCCIV 29 of 2005 or case SCCIV 418 of 2004.
7.An independent Appeal judge is assigned to deal with Appeals which may arise from case SCCIV 14-1564 who has had no previous dealing with this case or any manifestation of this case when it was case SCCIV 13-1574 or case SCCIV 29 of 2005 or case SCCIV 418 of 2004.
An application for recusal or disqualification is made to and is to be determined by the judge concerned and is subject to any rights of appeal that may be available.[1] As far as proposed orders 4, 5, 6 and 7 are concerned, these are not matters upon which I can rule. These are matters to be dealt with in accordance with the ordinary listing practices of this Court, as supervised to the extent appropriate and necessary by the Chief Justice. In the event that I were to recuse myself, another judge of this Court would be assigned to the two matters. I turn then to consider the plaintiffs’ application that I recuse myself and, in particular, orders 1, 2 and 3 as sought.
[1] The question of when, if at all, an appeal will lie from a decision from a judicial officer not to recuse himself or herself has recently been considered by me in Stone v Moore [2015] SASC 46; (2015) 122 SASR 54.
The basis of the plaintiffs’ application
The plaintiffs rely on the affidavit, filed in support, sworn by Francis McDonald on 19 August 2015. The plaintiffs assert as the main ground[2] that I have a conflict of interest given that I was a member of the Full Court that refused leave to appeal from a judgment of Bampton J. They complain, in addition, that I have delivered previous adverse interlocutory judgments in these proceedings, that, sitting as a single judge of this Court, I refused permission for Francis McDonald to pursue judicial review proceedings seeking to challenge orders made in the Workers Compensation Tribunal, and that I have from time to time directed the Registrar of this Court, pursuant to the Supreme Court Civil Rules 2006, rule 53, to refuse the filing of certain documents on the basis that they would amount to an abuse of process.
[2] Mr McDonald’s affidavit at [3].
In essence, the plaintiffs complain that because of my previous involvements as a judicial officer in matters involving the plaintiffs, and in particular Francis McDonald, I have a “conflict of interest”. As I understand the complaint, it is one of apprehended bias, that is, that a fair-minded, lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the future resolution of matters involving the plaintiffs and the defendants.
My previous involvements with the plaintiffs in the two matters presently on foot and with Mr McDonald in connection with the Workers Compensation Tribunal can be summarised as follows.
(i)In McDonald & Anor v State of South Australia, a judgment published to the parties on 5 July 2010 when I was a Judge of the District Court (DCCIV-05-29), I considered an appeal from a decision of a Master of the District Court. The Master had ruled on the defendant’s application to strike out various paragraphs of and for an order that the plaintiffs provide further particulars with respect to the then latest version of the proposed statement of claim. These District Court proceedings were the ones that were transferred in 2013 to the Supreme Court and thereupon became Action No. 1574 of 2013. The appeal concerned a pleadings argument only and no issue concerning the merits of the plaintiffs’ claim was considered. The plaintiffs’ appeal was partially successful. I granted leave to appeal out of time, I allowed the appeal with respect to three impugned paragraphs of the proposed statement of claim but I otherwise dismissed the appeal.
(ii)In McDonald v Workers Compensation Tribunal,[3] I dismissed an appeal from Francis McDonald against a refusal by a Master to grant permission to proceed with judicial review proceedings pursuant to Supreme Court Civil Rules 2006, rule 200(1) in the form of that rule as it then stood. Again, the matter I dealt with was procedural and I did not enter upon the merits of any dispute between Mr McDonald and his employer that had been the subject of the Workers Compensation Tribunal proceedings. A Deputy President of the Workers Compensation Tribunal had held that Mr McDonald’s claim for compensation under the Workers Rehabilitation and Compensation Act 1986 should be struck out for want of prosecution.[4] A Master of this Court refused permission, as then required by rule 200(1), to continue with proceedings in this Court by way of judicial review of the Deputy President’s decision. I arrived at the following conclusion.[5]
[3] [2013] SASC 34.
[4] McDonald v Department of Education and Children's Services [2011] SAWCT 36.
[5] [2013] SASC 34 at [28].
However, and given that the appeal is by way of re-hearing, I have conducted my own examination of the reasons of Hannon DP in the context of Mr McDonald’s overarching complaints. The decision whether or not to strike out for want of prosecution is essentially a discretionary one. Mr McDonald has been given every reasonable opportunity to have his claim heard in the Tribunal. I can discern no reasonable basis for an argument that Hannon DP erred in the exercise of the discretion open to him. No potential failure to have observed the requirements of House v R[6] has been identified.In my view, Mr McDonald’s application for judicial review, were it to proceed, would have no prospects of success. He has not shown a reasonable basis on which he might establish a right to an order for judicial review.
[6] (1936) 55 CLR 499.
To the best of my understanding, Francis McDonald did not seek permission to appeal from my decision.
(iii)In McDonald v State of South Australia,[7] I dismissed an appeal by Francis McDonald against a decision of a District Court Judge who had dismissed an appeal against a Master’s refusal to allow Francis McDonald to file a proposed amended statement of claim. However, I allowed the appeal against the dismissal of the action itself and ruled that Francis McDonald was to be allowed a further opportunity to re-plead his claim subject to certain conditions. I remitted the matter to a District Court Master for directions as to its further conduct. This appeal concerned the proceedings, then in the District Court, that were subsequently transferred to this Court becoming proceedings 1574 of 2013. Again, the matter concerned one of the multiple attempts by Francis McDonald to file a pleading that conformed with the rules of pleading. This, at the time, latest iteration of Mr McDonald’s pleading was challenged and the Court was required to rule on whether or not the pleading should be struck out in part or in whole. This time, the defendant also sought the dismissal of the action and, in this respect, following the appeal as heard by me, was unsuccessful. Again, the matters considered were entirely procedural and at no time were the merits of Mr McDonald’s claim entered upon. There was no appeal from either party from this decision.
(iv)In McDonald & Anor v State of South Australia,[8] I was a member of the Full Court[9] that heard, in private in accordance with the rules of this Court, an application by Francis McDonald and Brennan McDonald to appeal against a decision of a single Judge of this Court. It was held that the appeal for which permission was sought would enjoy no prospect of success and permission to appeal was refused.[10] The two applicants sought special leave to appeal to the High Court of Australia which, on 13 August 2015, was refused. The nature of the matter and its history is summarised in the reasons provided by Bell and Gageler JJ for the refusal of special leave to appeal.[11]
This is an application for special leave to appeal from the order of the Full Court of the Supreme Court of South Australia (Gray, Sulan and Nicholson JJ) refusing the applicants permission to appeal from the order of the Supreme Court of South Australia (Bampton J) refusing to extend time within which to apply for permission to appeal from the order of the District Court of South Australia (Judge Tilmouth) dismissing an appeal from the decision of a Master of the District Court (Master Blumberg). The Master refused to substitute the Minister for Education as the defendant to the proceedings because there was no utility in making that order.
The applicants do not have legal representation and their application falls to be dealt with under r 41.10 of the High Court Rules 2004 (Cth).
The Full Court's refusal of permission to appeal on this question of practice and procedure was plainly correct. An appeal to this Court would have no prospect of success.
The application is dismissed.
Pursuant to r 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application.
[7] [2013] SASC 36.
[8] [2015] SASCFC 15.
[9] Gray, Sulan and Nicholson JJ.
[10] At [6].
[11] [2015] HCASL 118.
The test for apprehended bias and its application in the circumstances of this case
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.[12]
[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".
The approach outlined in Johnson was again endorsed by the High Court in Ebner v Official Trustee and Bankruptcy.[13]
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.
[12] [2000] HCA 48; (2000) 201 CLR 488 at [11]-[12] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) (footnotes omitted).
[13] [2000] HCA 63; (2000) 205 CLR 337 at [6]. (Gleeson CJ, McHugh, Gummow and Hayne JJ) (footnotes omitted).
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.[14] Any reasonable apprehension of bias must be firmly established before disqualification will follow.[15]
[14] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [8].
[15] British Australian Tobacco Australia Services v Laurie [2011] HCA 2; (2011) 242 CLR 283 at [44]-[45].
I do not understand the plaintiffs to be asserting actual bias on my part. In any event, usually, the issue of whether or not a Judge should recuse himself or herself can be determined on the reasonable apprehension test without considering actual bias.[16]
[16] IFF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd [1999] SASC 249; (1999) 78 SASR 151 at [211].
As a general proposition, actual or apprehended bias is not to be extrapolated simply from the fact that a judge has made adverse findings. Where a claim of apprehended bias relies on previous adverse decision making, the test is whether what was done on a previous application or applications 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.[17]
[17] 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 proceed to hear the matter unless there are proper grounds which require recusal. In Re JRL; Ex parte CJL,[18] Mason J said this.
It seems that the acceptance by this Court of the test of reasonable apprehension of bias... has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. 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. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach these issues in this way. 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”... 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 to 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.
In this matter, I have made a number of decisions involving these proceedings and other proceedings in which Francis McDonald is or was a party. They were all dealt with at the interlocutory level (or in the case of rule 53 directions, an administrative level) and did not involve any investigation into merits. On at least one occasion, Francis McDonald has pursued, ultimately unsuccessfully, permission to appeal but on other occasions he has not sought permission to appeal. On two occasions, my judgments have been, if only in part, favourable to the plaintiffs.
[18] (1986) 161 CLR 342 at 352 (citations omitted).

Mr McDonald also appears to assert that because I am an employee of the Crown there is an appearance of bias in this case, because a defendant is an emanation of the Crown and represented by the Crown Solicitor’s Office. I am not an employee of the Crown.[19] Any concern that a Supreme Court Justice, by virtue of that office, should be seen as amenable to direction or control by the Crown is unfounded.[20]
[19] The Queen v Moss; Ex parte Mancini (1982) 29 SASR 385 at 388-389 (King CJ); O’Conner v South Australia (1976) 14 SASR 187 at 188-189 (Bray CJ); Bradley Selway, The Constitution of South Australia (Federation Press, 1997) at [8.5.7] and [12.2].
[20] See Constitution Act 1934 (SA) (Pt 4); Supreme Court Act 1935 (SA) (Pt 1).
Having now been assigned, for the present, to deal with these two proceedings, and at this stage only with respect to further interlocutory issues, I have an obligation to discharge that judicial duty unless either actual or apprehended bias can be established. There is no evidence relied on by the plaintiffs that would support a claim of actual bias. As far as the question of apprehended bias is concerned, and bearing in mind that my only involvement to this point has been at the interlocutory level as already explained, I am not satisfied that a fair minded, lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the interlocutory questions likely to come before me in these matters. The mere fact that I have made decisions in the past adverse to the plaintiffs’ interests is not, of itself, sufficient to give rise to an apprehension of bias. The first of the two stages earlier referred to is not made out. The plaintiffs’ interlocutory application for me to recuse myself from further hearing of both matters is dismissed.