Rayney v Reynolds [No 3] - [2022] WASC 324

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RAYNEY -v- REYNOLDS [No 3] [2022] WASC 324
CORAM:   HILL J
HEARD:   19 SEPTEMBER 2022
DELIVERED          :   21 SEPTEMBER 2022
FILE NO/S:   CIV 1827 of 2015
BETWEEN:   LLOYD PATRICK RAYNEY
Plaintiff

AND

MARK REYNOLDS
Defendant

Catchwords:

Courts and judges - Application for recusal - Application brought after trial heard and decision reserved - Whether reasonable apprehension of bias arising from historical working relationship between trial judge and counsel - Whether there is a duty to disclose prior association - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	N Ekanayake
Defendant	:	In person

Solicitors:

Plaintiff	:	Bennett
Defendant	:	In person

Cases referred to in decision:

Charisteas v Charisteas [2021] HCA 29
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
MTI v SUL [No 2] [2012] WASCA 87
R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256
Rayney v Legal Profession Complaints Committee [2018] WASCA 73
Re JRL Ex parte; CJL [1986] HCA 39; (1986) 161 CLR 342
Smits v Roach [2006] HCA 36; (2006) 227 CLR 423
Stanley v Layne Christensen Co [2006] WASCA 56
Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568
Webb v R [1994] HCA 30; (1994)181 CLR 41

HILL J:

On 21 and 22 July 2020, I heard the trial in these proceedings. At the conclusion of the trial, I reserved my decision.
On 29 June 2022, the solicitors for the plaintiff wrote to the Chief Justice of Western Australia to enquire as to the progress of the delivery of the outstanding judgment.[1] The Chief Justice responded providing an update as to when the decision would be handed down, namely that it was anticipated it would be delivered before the end of next month.[2]
[1] Affidavit of Mark Edward Reynolds filed 25 July 2022 Attachment 2.
[2] Defendant's submissions [14].
Following this exchange, on 18 July 2022, my chambers were copied into an email exchange between the defendant and the solicitors for the plaintiff.[3] By this email, the defendant gave notice that he expected to make an application for me to recuse myself from delivering judgment in this matter. The basis for the application was my previous employment and subsequent partnership at Bennett & Co between 1994 and 2005, a predecessor firm to the plaintiff's current solicitors.
[3] Affidavit of Mark Edward Reynolds filed 25 July 2022 Attachment 3.
On 1 August 2022, the defendant filed a formal summons. On 9 August 2022, programming orders were made for the filing of any further affidavits and submissions in relation to the application.
In support of his application, the defendant relied…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rayney v Reynolds [No 3]

Details

AGLC: Rayney v Reynolds [No 3] [2022] WASC 324
Case: [2022] WASC 324
Decision Date

CaseChat Overview and Summary

The plaintiff, Lloyd Patrick Rayney, has brought proceedings against the defendant, Mark Reynolds, in the Supreme Court of Western Australia. The case, Rayney v Reynolds [No 3], concerns an application for the trial judge, Hill J, to recuse themselves from delivering judgment in the matter. The application is predicated on the judge's prior working relationship with the plaintiff's counsel, which was not disclosed to the defendant. The legal issues the court had to decide included whether the prior working relationship between the judge and the plaintiff's counsel created a reasonable apprehension of bias and whether there is a duty to disclose such prior associations.

Hill J dismissed the application, concluding that the prior working relationship did not create a reasonable apprehension of bias. The court found that the relationship ended over 14 years before the commencement of the proceedings and did not result in any continuing professional or personal connection. The judge further held that the defendant had not articulated a logical connection between the prior relationship and any potential bias that might influence the decision-making process. The court emphasized that the fundamental question was whether the defendant had established a reasonable apprehension of bias, rather than whether any connection was disclosed. As the defendant had not established substantial grounds for recusal, the application was dismissed.

Orders