O'Shanassy v Turland

[2021] NSWDC 269

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

O’Shanassy v Turland [2021] NSWDC 269

Hearing dates:

18 June 2021

Date of orders:

22 June 2021

Decision date:

22 June 2021

Jurisdiction:

Civil

Before:

Scotting DCJ

Decision:

(1)   I disqualify myself from hearing the proceedings.

(2)   The hearing date of 2 August 2021 is confirmed.

(3)   The parties are to file a Joint Statement of Issues on or before 5pm on 12 July 2021.

(4)   The parties are to file and serve an index to their tender bundles on or before 5pm on 12 July 2021.

(5)   The parties are to file (2 copies) and serve their tender bundles on or before 5pm on 16 July 2021.

(6)   The plaintiff is to file and serve a chronology on or before 5pm on 23 July 2021.

(7)   The parties are to file and serve an outline of submissions on or before 5pm on 23 July 2021.

Catchwords:

COURTS AND JUDGES — Bias — Apprehended bias - Disqualification

Cases Cited:

Chamoun vDistrict Court of New South Wales [2018] NSWCA 187

Gair and Turland v Greenwood [2020] NSWDC 586

Category:

Procedural rulings

Parties:

Paul O’Shanassy (Plaintiff)
Gary Turland (Defendant)

Representation:

Counsel: R Rasmussen (Plaintiff)
T Senior (Defendant)

Solicitors: Agility Legal (Plaintiff)
RGSLAW (Defendant)

File Number(s):

2017/384953

Publication restriction:

None

Judgment

Introduction

1. On 1 October 2020 I made orders in favour of the defendant in proceedings brought by him for defamation and arising from his conduct as an elected councillor of Wingecarribee Shire Council, in Gair and Turland v Greenwood [2020] NSWDC 586 (Greenwood).

2. The plaintiff in these proceedings seeks an order that I disqualify myself on the basis of apprehended bias.

3. The matter is listed for hearing commencing on 2 August 2021 with a 5 day estimate.

Factual background

4. In Greenwood, Mr Turland was awarded damages for defamation over a series of defamatory publications suggesting that he was a corrupt councillor. The matter proceeded as an assessment of damages after the Defence was struck out for failure to comply with court orders. The assessment was undertaken by reference to Mr Turland’s affidavit evidence and he was not cross-examined.

5. The present proceedings are a claim for defamation by the plaintiff arising from the words published by Mr Turland at Council meetings that were later published in the local media.

Relevant law

6. The test for apprehension of bias is eloquently set out in Chamoun v District Court of New South Wales [2018] NSWCA 187 at [35]-[40], as follows:

35.   The test for determining whether a judge is disqualified by reason of the appearance of bias 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”: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]; Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31].

36.   The test of apprehension of bias is objective. It does not require an assessment of the state of mind of the judge in question, as is necessary on an inquiry about actual bias: Johnson v Johnson at [12]; Michael Wilson & Partners v Nicholls at [33].

37.   The application of the apprehension of bias principle requires two steps. The first is the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. The second is that there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [8]; Michael Wilson & Partners v Nicholls at [63].

38.   Accordingly, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. The question is not whether the judge had in fact prejudged an issue: Michael Wilson & Partners v Nicholls at [67].

39.   In Tarrant v R [2018] NSWCCA 21, the Court of Criminal Appeal (Basten JA, R A Hulme J and Hidden AJ) observed (at [9]) that the so-called “double might” test is by no means easy to apply, noting that its application requires attention to four discrete elements:

(1)   First, there is the postulate of the “fair-minded lay observer”. Use of that expression reflects the principle that it is public confidence in the administration of justice which is sought to be preserved and not, as explained in Johnson v Johnson, “the assessment by some judges of the capacity or performance of their colleagues.”

(2)   Secondly, the test has been described as “objective”, by which is meant a third party’s assessment of the judge’s conduct and capacity, and not, as with actual bias, an assessment of the judge’s own state of mind.

(3)   Thirdly, there is said to be a two-stage process required; it is necessary to articulate “the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision-making.”

(4)   Fourthly, use of the term “might” lowers the burden of proof below that of probabilities. Thus the court need not be satisfied that the fair-minded lay observer “would” have such an apprehension; nor need any apprehension in the mind of the observer itself involve a state of satisfaction on the probabilities. (Citations omitted)

40.   As recognised in Tarrant v R (at [12]), there is a level of unavoidable imprecision in the standard of what a person “might” apprehend. Nevertheless, a fanciful or speculative possibility must be put to one side and the reasonable fear of the observer must be “firmly established”: CUR24 v Director of Public Prosecutions (2012) 83 NSWLR 385; [2012] NSWCA 65 at [36] (Meagher JA).

Consideration

7. As a matter of law I was not required in Greenwood to make any credit findings relating to Mr Turland and I was not able to do so. However, that is not the test to be applied. I accepted that Mr Turland had suffered damage to his reputation as an elected politician and more broadly. I also accepted that Mr Turland and his wife had suffered considerable distress as a consequence of the defamatory publications.

8. Having regard to my decision in Greenwood, the fair minded reasonable observer might think that I accepted that:

1. Mr Turland conducts himself as a model elected politician;

2. He is a person of honesty and integrity;

3. He had a reputation for so acting;

4. He deserved the Court’s sympathy for the effects of the defendant’s conduct.

9. The present proceedings require the Court to consider if Mr Turland’s publications at the relevant Council meetings were defamatory. I am satisfied that the fair minded reasonable observer might think that I could not bring an impartial mind to bear on the relevant issues, because I have made favourable findings for Mr Turland in the Greenwood proceedings.

10. There is a judge available to hear the proceedings on the date that they are set down and on balance, it is appropriate for me to disqualify myself.

Orders

11. The orders I make are as follows:

1. I disqualify myself from hearing the proceedings.

2. The hearing date of 2 August 2021 is confirmed.

3. The parties are to file a Joint Statement of Issues on or before 5pm on 12 July 2021.

4. The parties are to file and serve an index to their tender bundles on or before 5pm on 12 July 2021.

5. The parties are to file (2 copies) and serve their tender bundles on or before 5pm on 16 July 2021.

6. The plaintiff is to file and serve a chronology on or before 5pm on 23 July 2021.

7. The parties are to file and serve an outline of submissions on or before 5pm on 23 July 2021.

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Amendments

22 June 2021 - Typographical error in plaintiff's surname

Decision last updated: 22 June 2021