Rayney v The State of Western Australia - [2020] WASCA 206

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   RAYNEY -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 206
CORAM:   BUSS P
HEARD:   7 SEPTEMBER 2020
DELIVERED          :   9 DECEMBER 2020
FILE NO/S:   CACV 15 of 2018
BETWEEN:   LLOYD PATRICK RAYNEY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   CHANEY J
File Number            :   CIV 2177 of 2008

Catchwords:

Courts and judicial system - Judges - Application for disqualification of judge on ground of apprehended bias - Presumed knowledge or awareness of hypothetical fair-minded lay observer - Whether reasonable apprehension of bias

Legislation:

Nil

Result:

Refusal of disqualification

Category: B

Representation:

Counsel:

Appellant	:	Mr M L Bennett
Respondent	:	Ms R Young

Solicitors:

Appellant	:	Bennett + Co
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225
British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283
CSR Readymix (Australia) Pty Ltd v Payne [1998] 2 VR 505
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70
Legal Profession Complaints Committee and Rayney [2016] WASAT 142
Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5
Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 (S)
Legal Profession Complaints Committee v Rayney [2017] WASCA 78
Legal Profession Complaints Committee v Rayney [2020] WASC 131
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Lloyd v Faraone [1989] WAR 154
Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Rayney v Legal Profession Complaints Committee [2018] WASCA 75
Rayney v Legal Profession Complaints Committee [2019] WASCA 104
Rayney v The State of Western Australia [No 9] [2017] WASC 367
Re JRL; ex parte CJL [1986] HCA 39; (1986) 161 CLR 342
Re Polites; ex parte The Hoyts Corporation Pty Ltd [1991] HCA 31; (1991) 173 CLR 78
The State of Western Australia v Rayney [2013] WASCA 219; (2013) 46 WAR 1
The State of Western Australia v Rayney [No 3] [2012] WASC 404
Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41

BUSS P:

The appellant (Mr Rayney) has appealed to this court from a judgment of Chaney J delivered after the trial of an action for damages brought by Mr Rayney against the respondent.
On the night of 7 August 2007 or in the early morning of 8 August 2007, Mr Rayney's wife (Mrs Rayney) was murdered.
When Mrs Rayney was murdered, and for a significant period after her murder, Mr Rayney practised in Western Australia as a barrister.
On 20 September 2007, Detective Senior Sergeant Jack Lee, a police officer involved in the investigation of Mrs Rayney's murder, said during a media conference that, relevantly, Mr Rayney was the prime and only suspect in the investigation into the murder.
After 20 September 2007, Mr Rayney's work as a barrister diminished substantially.
Mr Rayney began proceedings against the respondent alleging that the words uttered by Detective Senior Sergeant Lee at the media conference had defamed him.
On numerous dates in March, April, May and July 2017, Mr Rayney's defamation action against the respondent was tried before Chaney J.
On 15 December 2017, his Honour delivered judgment.
In his reasons for judgment, Chaney J found that the words uttered by Detective Senior Sergeant Lee at the media conference bore the imputation that Mr Rayney had murdered Mrs Rayney. His Honour ordered that the respondent pay to Mr Rayney $846,180.82 in damages for non‑economic loss (including interest) and $1,777,235 in damages for economic loss (including interest). See Rayney v The State of Western Australia [No 9].[1]
[1] Rayney v The State of Western Australia [No 9] [2017] WASC 367.
Mr Rayney's principal contention in the appeal is that Chaney J erred in confining the award of damages for economic loss to the period from 20 September 2007 to 8 December 2010 while finding that general damages continued up until trial.
Mr Rayney alleges on appeal that Chaney J should have awarded damages for economic loss for some or all of the period from 9 December 2010 to 22 November 2012 and for some or all of the period from 10 February 2016 to 24 January 2018.
Mr Rayney does not allege on appeal that he is entitled to any damages for economic loss beyond 24 January 2018.
By an application in the pending defamation appeal dated 3 September 2020, Mr Rayney contended, in effect, that Murphy JA, Corboy J and I should disqualify ourselves from hearing the pending defamation appeal. I am satisfied, for the following reasons, that I should not disqualify myself.

The organisation of the balance of these reasons

It is convenient, first, to recount details of numerous criminal, civil and professional disciplinary proceedings to which Mr Rayney has been a party since 20 September 2007. I will then turn to the submissions of the parties on Mr Rayney's application in the appeal dated 3 September 2020, and the merits of the application, in relation to me.

This court's decision in AW v Rayney [2010] WASCA 161

On 22 August 2007 and 20 September 2007, the Western Australian police (WA police) executed search warrants under s 42 of the Criminal Investigation Act 2006 (WA) (the CIA) at 6 Monash Avenue, Como, being Mr Rayney's residential address, and at Francis Burt Chambers, 77 St Georges Terrace, Perth, being Mr Rayney's business address.
During the execution of the search warrants, the WA police seized numerous items including non‑electronic and electronic records. The electronic records comprised computers and other electronic media.
Mr Rayney notified the WA police that he claimed legal professional privilege over all of the records seized from Francis Burt Chambers and, amongst other things, all of the information contained on the computers and other electronic media seized under the search warrants.
On 24 August 2007 and 24 September 2007, in accordance with s 151 of the CIA, AW, who was a member of the WA police, made two applications to the Magistrates Court at Perth to determine the claims of legal professional privilege (Applications 3 and 6 of 2007).
AW was a delegate of the police officer in charge of the investigation into Mrs Rayney's murder.
Magistrate Flynn, who determined the applications, appointed a computer forensic expert to assist him in identifying relevant records contained in the electronic records. The expert located various audio recordings within the electronic records.
The audio recordings were included in 81 items. Some of these items were: copies of recordings of conversations between Mr Rayney and Mrs Rayney contained on a compact disc; copies of recordings of conversations between Mr Rayney and a person or persons whose name or names had been redacted, contained on a compact disc; and copies of these recordings contained on computers and associated metadata.
Pursuant to orders made by the magistrate, Mr Rayney notified the Magistrates Court and AW of the withdrawal of his claim of privilege over item 35 and over parts of the computer forensic analysis associated with this item. He maintained his claim of privilege over all or part of the other items (being items 1 ‑ 34 and 36 ‑ 81), which were referred to by the magistrate and the parties as the 'Tranche 1 Files'.
The magistrate categorised the items in the Tranche 1 Files as follows:
(a)Category 1 Files: copies of audio recordings of conversations between Mr Rayney and Mrs Rayney;
(b)Category 2 Files: copies of recordings of telephone conversations between Mr Rayney and third parties made without the knowledge or consent of those third parties; and
(c)Category 3 Files: items containing information about the computer files in Category 1 and Category 2.
On 19 March 2009, the WA police executed a search warrant under s 42 of the CIA at the offices of Carr & Co, solicitors. Mr Rayney had retained the firm to provide legal services.
During the execution of the search warrant, the WA police seized one lever arch file containing documents, three white manila folders and one DVD copied from a computer hard drive. These items were located by William Carr, a partner of the firm.
Mr Carr notified the WA police that he claimed legal professional privilege over the documents and the DVD.
On 2 April 2009, in accordance with s 151 of the CIA, a police officer made an application to the Magistrates Court at Perth to determine the claim of legal professional privilege (Application 10 of 2009).
On 26 June 2009, the WA police executed another search warrant under s 42 of the CIA at the offices of Carr & Co. Records were seized. Mr Carr notified the WA police that he claimed legal professional privilege over the records. Once again, in accordance with s 151 of the CIA, a police officer made an application to the Magistrates Court at Perth to determine the claim (Application 16 of 2009).
On 18 and 19 November 2009, there was a hearing before Magistrate Flynn to determine Mr Rayney's claim of legal professional privilege over the Tranche 1 Files and a file note dated 6 August 2007 made by Mr Carr during a conference with Mr Rayney on that date. The file note was seized by the police on 19 March 2009 and was one of the documents the subject of Application 10 of 2009.
On 17 December 2009, the magistrate delivered his decision on the matters heard on 18 and 19 November 2009, and published written reasons. Each of AW and Mr Rayney was successful in part and unsuccessful in part.
Each of AW and Mr Rayney appealed against the orders made by the magistrate. The appeal was heard by this court.
In my reasons in AW v Rayney, I recounted the magistrate's findings and reasons in relation to the original recordings, of which the Category 2 Files were copies, including his Honour's findings and reasoning on the 'crime/fraud exception' to legal professional privilege. In particular, I said [165] ‑ [166], [168] ‑ [169]:
The magistrate noted in his reasons that the Category 2 Files, ID 10 ‑ 29, ID 52 ‑ 73 and ID 75 ‑ 81, were said by Mr Rayney to be copies of recordings of telephone conversations between himself and third parties. Mr Rayney said that he made the recordings in August/September 2007 for the purpose of defending himself in anticipated criminal proceedings and for the purpose of receiving legal advice about such proceedings. The recordings were made without the knowledge or consent of the third parties [7].
The magistrate held:
Mr Rayney has discharged the onus of proving that all of these conversations were recorded for the dominant purpose of receiving legal advice or in reasonable anticipation of litigation. The contents of the recordings reveal to me a likelihood of the subject matter of the conversations being canvassed in hearings of any criminal charges. Except for the recording of conversations per ID 12-13 (and copies), I am satisfied that recordings fall within the 'reasonably necessary for protection of lawful interests' protection of the law and no issue arises as to the application of the crime/fraud exception [7].
Later in his reasons, he elaborated upon these conclusions.
…
The magistrate found that Mr Rayney made recordings on a handheld digital dictaphone, and copied the recordings onto a disc on his computer. As a result, there were identical recordings on the disc and on either or both Mr Rayney's computer at his chambers and his computer at home [51].
Mr Rayney's claim of legal professional privilege was in relation to the copies on the disc and his computer. The original recordings were 'lost' as a result of Mr Rayney having 'thrown out' the dictaphone.
On appeal to this court, Mr Rayney did not challenge any of the findings in the last two paragraphs of that passage.
I observed in my reasons that the magistrate found that the Category 1 Files were not a complete record of the original recordings of conversations between Mr Rayney and Mrs Rayney. The only evidence that the Category 2 Files were a complete copy of the original recordings of conversations between Mr Rayney and third parties came from Mr Rayney [202].
In my reasons in AW v Rayney, I also noted that the magistrate held that the original recordings of the conversations between Mr Rayney and Mrs Rayney, copies of which comprised the Category 1 Files, were obtained in contravention of s 5(1)(b) of the Surveillance Devices Act 1998 (WA). The magistrate's findings of fact were as follows:
(a)the magistrate did not accept Mr Rayney's evidence that Mrs Rayney expressly or impliedly consented to the recording of their conversations in person or their telephone discussions;
(b)there was an inexplicable inconsistency in Mr Rayney's stated purpose in recording the conversations for use in family law litigation in circumstances where Mrs Rayney's alleged consent to the original recordings was not recorded;
(c)it was inherently unlikely that Mrs Rayney would omit to mention (as she did) the existence of consensual audio recordings to her family lawyer, Gillian Anderson;
(d)it was inherently unlikely that Mr Rayney would seek the consent of Mrs Rayney to the recording of the conversations in the Category 1 Files and, thereafter, make arrangements (as he did), in July 2007, for the installation, without Mrs Rayney's knowledge, of a telephone recording device in their home; and
(e)the magistrate concluded that Mrs Rayney did not consent to the making of the original recordings.
On appeal to this court, Mr Rayney did not challenge any of those findings [281].
This court (McLure P, Newnes JA and I) unanimously allowed AW's appeal and ordered that the magistrate's decision concerning various items be set aside and that Mr Rayney's claim of legal professional privilege in respect of those items be dismissed. This court unanimously dismissed Mr Rayney's appeal.
In my reasons in AW v Rayney, I held, relevantly:
(a)The magistrate had breached the rules of procedural fairness in the course of determining Mr Rayney's claim of legal professional privilege. The breach occasioned material prejudice to AW and resulted in a miscarriage of justice [152] ‑ [154], [158], [159].
(b)A number of facts and circumstances indicated, objectively, that Mr Rayney's dominant purpose in participating in conversations with third parties and recording those conversations was not to put them before a lawyer with the object of obtaining legal advice or for preparation or use in the defence of anticipated criminal proceedings against him. Rather, the objective probabilities were that Mr Rayney's dominant purpose was to assess later whether anything said by any party might be useful or advantageous to him, as matters developed in the course of the police investigation into Mrs Rayney's death [197], [199].
(c)On the facts as found by the magistrate and the facts that were not seriously in contest, the objective probabilities required the ultimate finding or conclusion that Mr Rayney made copies of the communications with third parties with the intention of destroying the originals by throwing away the dictaphone, so that the recordings would not be available to anyone for any purpose. The contents of the Category 2 Files did not reveal any statements or any discussion in respect of which Mr Rayney could reasonably have sought legal advice and were created without any discrimination as to the significance or relevance of the content of each conversation [220] ‑ [221].
(d)The original recordings with the third parties were made with a listening device in circumstances that were not within s 5(3)(d) of the Surveillance Devices Act as there was no objective basis for any belief by Mr Rayney that any of the other parties to the conversations would or may have been:
(i)untruthful as to their recollection of the matters discussed;
(ii)likely to have asserted that Mr Rayney was being dishonest in his recollection of the matters discussed;
(iii)unwilling to provide a witness statement, including a statement as to the content of the conversations;
(iv)uncooperative with the police if the police had sought to interview them; or
(v)likely to have asserted that Mr Rayney had fabricated his account of the conversations [253] ‑ [260].
(e)Mr Rayney was at the material time a very experienced barrister with extensive experience in the practice of criminal law, and there was no reason or justification (beyond mere convenience) as to why he could not have made adequate notes of the material substance of the conversations [261].
(f)The objective probabilities were that Mr Rayney, a very experienced criminal lawyer, would have been familiar with the statutory provisions which had been enacted to overcome the problem of admissions by a suspect to the police and the perceived problem of the police 'verbal' pursuant to s 570D of Criminal Code (WA) (repealed) and pt 11 of the CIA [262].
(g)As to Mr Rayney's ground of appeal that the magistrate's findings in respect of the Category 1 Files were not reasonably necessary for the protection of the lawful interest of Mr Rayney, Mr Rayney's proposed case on appeal to this court was materially inconsistent with the case which he ran on that issue before the magistrate and represented an attempt to establish a new argument as a result of having lost on the issue in contest at the original hearing [315].
(h)It was not reasonably open, on the magistrate's findings of fact and on the evidence that was not seriously in contest, to conclude that Mr Rayney recorded the conversations in order to protect his reputation. Mr Rayney did not give any evidence to that effect, but rather said in evidence that his purpose in recording the conversations was to show his family lawyer what was being discussed between him and Mrs Rayney on topics he told her he wanted to discuss [323].
(i)It was not reasonably open, on the magistrate's findings of fact and on the evidence that was not seriously in contest, to conclude that the use of the dictaphone was 'reasonably necessary' for the protection of any lawful interest Mr Rayney may have had as:
(i)the recorded conversations were mundane in character and content, and occurred in the context of day‑to‑day living in a domestic relationship;
(ii)Mr Rayney did not identify in evidence any lawful interest that he wanted to protect;
(iii)the recording of a conversation, by a party to the conversation, merely to ensure there was an irrefutable record of it, did not, of itself, bring the recording within s 5(3)(d) of the Surveillance Devices Act;
(iv)there was no evidence that Mr Rayney had a reasonable belief that any lawful interest he may have had would be endangered if he did not record the conversations;
(v)Mr Rayney was a very experienced criminal lawyer and there was no reason or justification (beyond mere convenience) as to why he could not have made adequate notes of the material substance of the conversations;
(vi)Mr Rayney was directing the topics of the conversations and given that only mundane matters were discussed, it was not reasonably open to conclude that Mr Rayney had a reasonable belief that it was necessary to record the conversations to protect any lawful interest he may have had [324] ‑ [331].

Mr Rayney is arrested and charged with Mrs Rayney's wilful murder

On 8 December 2010, Mr Rayney was arrested and charged with Mrs Rayney's wilful murder or, in the alternative, with her manslaughter.
Upon being charged, Mr Rayney notified the Legal Practice Board.

Events in 2010 and 2011 involving Mr Rayney and the Legal Practice Board

On 23 December 2010, Mr Rayney was granted bail.
On 11 February 2011, the Legal Practice Board imposed conditions on Mr Rayney's practising certificate, including a condition restraining Mr Rayney from appearing before any court or tribunal in Australia.
On 18 March 2011, Mr Rayney agreed to the imposition of a condition on his practising certificate to the effect that he would not appear as counsel in any jury trial in the District Court of Western Australia or the Supreme Court of Western Australia until the wilful murder charge had been determined.

Mr Rayney's trial and acquittal on the charge of wilful murder

On numerous dates in July, August, September and October 2012, Mr Rayney was tried before Martin AJ alone without a jury on the wilful murder charge.
On 1 November 2012, Martin AJ found that Mr Rayney was not guilty of wilful murder or manslaughter. His Honour entered a judgment of acquittal.
In his reasons for judgment, Martin AJ said:[2]
[Mr Rayney] has engaged in discreditable conduct including knowingly arranging for illegal telephone interception, making a false declaration and deliberately giving false evidence to a court while on oath. The evidence raises suspicion; in some instances quite strong suspicion. But discreditable conduct does not prove guilt, and suspicion, even strong suspicion, falls well short of proof beyond reasonable doubt.
[2] The State of Western Australia v Rayney [No 3] [2012] WASC 404 [1594].

Events in 2012 involving Mr Rayney and the Legal Practice Board

On 16 November 2012, the Legal Practice Board notified Mr Rayney of its intention to cancel his practising certificate because of the various adverse findings made against him by Martin AJ in his reasons for judgment.
By letter dated 23 November 2012, Mr Rayney offered to give a voluntary undertaking to the Legal Practice Board not to practice until he had made a detailed submission to the Board. By letter dated 27 November 2012, the Board accepted the voluntary undertaking.
On 10 December 2012, Mr Rayney made a detailed submission to the Legal Practice Board.
On 13 December 2012, the Legal Practice Board requested Mr Rayney to give a written undertaking that he had ceased to engage in legal practice and would not recommence practice without first giving the Board 42 days' written notice.
On 17 December 2012, Mr Rayney gave the written undertaking requested by the Legal Practice Board.
Pursuant to the undertaking, Mr Rayney did not recommence practice until after 10 February 2016.

This court's decision on the State's appeal against Mr Rayney's acquittal on the charge of wilful murder

On 22 November 2012, the State filed an appeal notice in respect of Martin AJ's decision that Mr Rayney was not guilty of wilful murder and the consequent judgment of acquittal.
On 23 September 2013, this court (Weinberg, Whealy and Buddin AJJA) dismissed the State's appeal. See The State of Western Australia v Rayney.[3]

Mr Rayney's trial and acquittal on charges under the Telecommunications (Interception and Access) Act 1979 (Cth)

[3] The State of Western Australia v Rayney [2013] WASCA 219; (2013) 46 WAR 1.

On numerous dates in April and May 2015, Mr Rayney was tried in the District Court before a judge and jury on two counts which alleged that Mr Rayney had committed offences under the Telecommunications (Interception and Access) Act 1979 (Cth).
On 5 May 2015, Mr Rayney was acquitted on one charge and on 7 May 2015 he was acquitted on the other charge.

Events in 2015 and 2016 involving the Legal Practice Board

On 18 May 2015, Mr Rayney informed the Legal Practice Board of his intention to resume legal practice.
On 2 June 2015, the Legal Practice Board notified Mr Rayney of its intention to cancel his practising certificate.
On 17 July 2015, the Legal Practice Board cancelled Mr Rayney's practising certificate with effect from 21 July 2015.
On 20, 21 and 22 October 2015, the State Administrative Tribunal (SAT) heard an application by Mr Rayney to set aside the Legal Practice Board's decision to cancel his practising certificate.
On 10 February 2016, SAT granted Mr Rayney's application to set aside the Legal Practice Board's decision to cancel his practising certificate. SAT ordered the Board to issue Mr Rayney with a practising certificate. The effect of SAT's order included the release of Mr Rayney from the undertaking to cease practice which he gave to the Board on 17 December 2012.

Events in 2013, 2015, 2016, 2017 and 2018 involving Mr Rayney and the Legal Profession Complaints Committee

On 16 December 2013, the Legal Profession Complaints Committee (the LPCC) issued a notice to Mr Rayney under s 421 of the Legal Profession Act 2008 (WA) (the LP Act).
On 9 October 2015, the LPCC filed an application with SAT, pursuant to s 438 of the LP Act, which alleged that Mr Rayney had engaged in professional misconduct.
On 11 August 2016, SAT heard an application by Mr Rayney for the summary dismissal of the professional misconduct proceedings commenced by the LPCC.
On 19 December 2016, SAT granted Mr Rayney's application and summarily dismissed the professional misconduct proceedings. See Legal Profession Complaints Committee and Rayney.[4]
[4] Legal Profession Complaints Committee and Rayney [2016] WASAT 142.
On 13 January 2017, the LPCC filed an appeal notice in respect of SAT's decision summarily to dismiss the professional conduct proceedings.
On 26 April 2017, this court (Martin CJ, Murphy JA and Corboy J) allowed the LPCC's appeal against SAT's decision summarily to dismiss the professional conduct proceedings, and remitted the matter for a hearing before a differently constituted tribunal. See Legal Profession Complaints Committee v Rayney.[5]
[5] Legal Profession Complaints Committee v Rayney [2017] WASCA 78.
On 5, 6, 7 and 13 December 2017, SAT (differently constituted) heard the professional misconduct proceedings.
On 25 January 2018, SAT found, in effect, that Mr Rayney had engaged in professional misconduct by:
(a)recording private conversations, from about April 2007 to a date unknown in 2007, between himself and Mrs Rayney on a dictaphone, contrary to s 5(1) of the Surveillance Devices Act, when Mr Rayney knew that he was acting unlawfully;
(b)swearing an affidavit on 2 February 2009 in which Mr Rayney gave knowingly false evidence on oath, with the intention of misleading the Magistrates Court; and
(c)giving evidence on oath in the Magistrates Court on 19 November 2009, when Mr Rayney knew that the evidence was false, with the intention of misleading the Magistrates Court.
See Legal Profession Complaints Committee and Rayney [No 2].[6]
[6] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5.
SAT made these findings in relation to the private conversations between Mr Rayney and Mrs Rayney which Mr Rayney recorded on the dictaphone [298]:
The Tribunal is satisfied that Mrs Rayney did not consent, expressly or impliedly, to the recording of their conversations. The Tribunal rejects Mr Rayney's evidence that he had a conversation with Mrs Rayney in which he told her that he was going to record their conversations. The Tribunal also rejects Mr Rayney's evidence that before each of the telephone conversations which he recorded he told Mrs Rayney that there would be a record of the conversations.
On 18 April 2018, SAT delivered its reasons for decision on penalty in relation to the professional misconduct proceedings. SAT found that not only had Mr Rayney knowingly given false evidence (twice) in the Magistrates Court in 2009 in relation to his claim for legal professional privilege, but that he had also knowingly given false evidence about those matters:
(a)in 2015, in the proceedings before SAT in which Mr Rayney sought to set aside the Legal Practice Board's decision to cancel his practising certificate;
(b)in 2017, in his evidence in the trial of the defamation action before Chaney J; and
(c)in 2017, in the professional misconduct proceedings before SAT.
In its reasons for decision on penalty, SAT said:[7]
By his conduct in giving evidence that he knew to be false with the intention of misleading the court in his affidavit of 2 February 2009 and in the Magistrates Court on 19 November 2009 Mr Rayney demonstrated that he lacked the honesty and integrity that are essential prerequisites to the right to practice law. Mr Rayney has demonstrated no remorse or insight into his professional misconduct in giving that false evidence. It cannot be said that the professional misconduct was isolated. Mr Rayney has knowingly given false evidence about the recording of his conversations with Mrs Rayney in 2015 in the proceedings in the Tribunal to review the [Legal Practice Board's] decision to cancel his practising certificate, in 2017 in his Supreme Court defamation action and in 2017 in the hearing before us.
Mr Rayney has suffered the many distressing, traumatic and stressful events that we have referred to in the Reasons and in these reasons. He was restricted in his ability to practice or unable to practice for almost five years. His poor financial position will be made worse if he is unable to practice and he will be deprived of the great personal satisfaction he derives from practice. The matters personal to Mr Rayney cannot override our fundamental obligation to provide appropriate protection of the public interest in the honesty and integrity of legal practitioners and the maintenance of proper standards of legal practice. It is our view that Mr Rayney lacks the honesty and candour that are essential attributes for a legal practitioner.
Having regard to the need to protect the public by marking the seriousness of knowingly giving false evidence, imposing a penalty that provides personal deterrence and general deterrence we have concluded that the only appropriate penalty is to recommend to the Supreme Court (full bench) that Mr Rayney's name be removed from the roll of practitioners.
As we have decided that Mr Rayney lacks the honesty and candour that are essential attributes for a legal practitioner it is our view that we should suspend Mr Rayney's local practising certificate pending the determination of the Supreme Court.
[7] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 (S) [126] ‑ [129].
SAT made and transmitted a report to the Supreme Court (Full Bench) on SAT's findings that Mr Rayney had engaged in professional misconduct with a recommendation that Mr Rayney's name be removed from the roll of persons admitted to the legal profession.

Mr Rayney's appeals to this court against SAT's decision that Mr Rayney had engaged in professional misconduct and against SAT's decision to make and transmit a report to the Supreme Court (Full Bench)

Mr Rayney appealed to this court against SAT's decision that Mr Rayney had engaged in professional misconduct and against SAT's decision to make and transmit a report to the Supreme Court (Full Bench) with a recommendation that Mr Rayney's name be removed from the roll of practitioners.
After Mr Rayney filed his appeal notices in this court in relation to those decisions, the appeals were consolidated. Mr Rayney made an application in the consolidated appeal for, in effect, an order continuing a stay on the suspension of his practising certificate and an order continuing the suppression of the publication of the reasons, findings and orders of SAT.
The application was heard by Martin CJ and Murphy JA. The application was dismissed.[8]
[8] Rayney v Legal Profession Complaints Committee [2018] WASCA 75.
Martin CJ (Murphy JA agreeing) held that:
(a)given that SAT had made findings of severity against Mr Rayney, the protection of the public interest and the maintenance of the reputation and standards of the legal profession were significant considerations which counted against the grant of any continuation of a stay upon the suspension of Mr Rayney's practising certificate or the suppression of publication of the reasons, findings and orders of SAT [17]; and
(b)the orders sought by Mr Rayney would expose the public and the courts to the risks found by SAT and diminish the reputation and standards of the legal profession [17].
On 2 August 2019, this court (Murphy JA, Corboy J and Smith J) dismissed Mr Rayney's consolidated appeal. See Rayney v Legal Profession Complaints Committee.[9]
[9] Rayney v Legal Profession Complaints Committee [2019] WASCA 104.
Murphy JA, Corboy J and Smith J held:
(a)Mr Rayney at all material times knew that he had disposed of the dictaphone used to record Mrs Rayney and that he could not recall the make and model of the dictaphone that he had used [480].
(b)As to whether Mr Rayney's evidence of consent was knowingly false, Mr Rayney was not merely mistaken, and he appreciated that his evidence about those matters was not the truth: the dictaphone recordings made of Mrs Rayney were, on Mr Rayney's evidence, carefully considered and executed [593].
(c)Mr Rayney's right to silence would not have been impaired by swearing a truthful affidavit in support of the claim for privilege which he was making; Mr Rayney had omitted to mention any oral insinuation by Mrs Rayney to him in Mr Rayney's affidavit of 2 February 2009 because none had been made; and Mr Rayney's account of events was implausible [612].
(d)Mr Rayney's explanations to the effect that he did not record Mrs Rayney's consent at the start of each conversation because he wanted a 'free-flowing' discussion, and did not want her to treat it as a 'formal event', or to be 'guarded' as a result, were implausible. When Mr Rayney decided to engage Mr Pearson to install a recording device in order to get a better quality recording of his anticipated telephone conversations with Mrs Rayney when she was away in Melbourne, Mr Rayney did not tell Mrs Rayney that he had arranged for a recording device to be placed in the house, and did not tell her that he intended to have a record of their telephone conversations using such a device. Mr Rayney's conduct was more broadly consistent with a lack of transparency in his approach to recording conversations with Mrs Rayney in 2007. It was difficult to conceive that Mrs Rayney acquiesced, expressly or impliedly, to the making of the recordings, in the latter case through watching Mr Rayney recording her as she was speaking, having regard to the accusatory and bitter nature of the dealings and communications [627].
(e)As to why the opinions expressed about Mr Rayney by Dr Chapman (a psychiatrist) and Professor Foster (a neuropsychologist) in reports sought to be admitted in evidence on Mr Rayney's consolidated appeal were not tendered at the disciplinary hearing in SAT, prior to the delivery of the misconduct decision, a deliberate forensic decision was made not to tender opinion evidence to that effect, consistent with Mr Rayney's case that, apart from matters of detail, his evidence before the magistrate was substantively true when he said that he had made the recordings as a result of insinuation, and that Mrs Rayney had consented to the recordings [656] ‑ [657].

The Supreme Court (Full Bench) orders that Mr Rayney's name be removed from the roll of practitioners

On 21 April 2020, the Supreme Court (Full Bench) (Kenneth Martin J, Corboy J and Smith J) ordered, on the application of the LPCC, that Mr Rayney's name be removed from the roll of practitioners. Mr Rayney did not oppose the LPCC's application to strike his name from the roll. See Legal Profession Complaints Committee v Rayney.[10]
[10] Legal Profession Complaints Committee v Rayney [2020] WASC 131.
Kenneth Martin J, Corboy J and Smith J held:
(a)Mr Rayney had committed a criminal offence by contravening the Surveillance Devices Act, which conduct warranted suspension from practice in itself, and concerned deceptive conduct, as the recording of the conversations was carried out without the knowledge or consent of Mrs Rayney, by concealing a dictaphone (upon which the conversations were recorded) [37].
(b)As to intentionally misleading the Magistrates Court in 2009, this involved dishonest conduct that was not isolated to 2009: Mr Rayney knowingly repeated the false evidence about the recording of his conversations with Mrs Rayney on three further occasions [38].
(c)Mr Rayney was not a fit and proper person to remain a legal practitioner essentially because of his fundamental failure to adhere to his duties to the court to act honestly [44] ‑ [46].
(d)Mr Rayney demonstrated willingness to engage in dishonest behaviour, and his persistent failure to appreciate the import and consequences of that behaviour, and the consequent negative impact that had rendered against the level of trust that should otherwise be reposed in him, by the court, his colleagues and clients, was so serious that the only appropriate order for the court to make was an order to remove Mr Rayney's name from the roll of practitioners [47].

Mr Rayney's pending defamation appeal: Mr Rayney's grounds of appeal and orders wanted

In the pending defamation appeal, Mr Rayney relies upon three grounds of appeal.
The grounds of appeal allege, relevantly:
1.Having found:
1.1correctly at [841] that as a matter of law the appellant 'need only show that the relevant defamatory statement was a cause of his loss, rather than the cause' of his loss; and
1.2at [893] that as a matter of fact 'the effect of the defamatory imputation on [the appellant's] reputation is more likely than not to have continued to be an operative factor in the assessment by members of the public of [the appellant's] character';
the Honourable trial judge erred in law in:
1.3failing to give reasons; alternatively
1.4failing to give adequate reasons
for his finding of fact at [938] that the defamatory publication was not a cause of the appellant's economic loss after 10 February 2016; alternatively
1.5finding against the evidence that the defamatory publication was not a cause of the appellant's economic loss after 10 February 2016;
2.The Honourable trial judge:
2.1erred in fact in finding at [942] that the murder charge on 8 December 2010 and restrictive condition placed on the appellant's practising certificate relevantly broke the chain of causation between the defamatory publication and the reduction in the appellant's capacity to earn income as a barrister;
2.2erred in law by failing to provide any reasons for (implicitly) rejecting or failing to have regard to the evidence of Paul Meyer (exhibit 19 at [33] ‑ [35]) and Henri Yi-Jin Chew (exhibit 17 at [13] ‑ [15]), neither of whom were cross‑examined, which was to the effect that the defamation caused them as solicitors [to] not brief the appellant after 8 December 2010; and
2.3erred in law by failing to provide reasons for (implicitly) rejecting or failing to have regard to the evidence of the appellant, which was to the effect that he was unable to earn his previous level of income as a barrister despite the reinstatement of the appellant's practising certificate on 10 February 2016.
3.Having found that the appellant suffered economic loss which was sustained over a period of time as follows:
3.1at [941], $70,000 (excluding GST) in respect of clients of the appellant withdrawing instructions and forcing the appellant to write-off fees that had been rendered and thereby suffering loss (such write-off occurring on or by 22 November 2007); and
3.2at [944] ‑ [968] based on the expert evidence of Mr Dennis Barton and Mr Martin Langridge (which identified the appellant's economic loss for individual financial years), (the precise calculation to be the subject of further conferral);
and on 20 December 2017 finding, based on such further conferral between the experts, that the appellant's total economic loss (post-tax) was $1,249,549 …
the Honourable trial judge erred in law in
3.3failing to give any reasons; alternatively
3.4failing to give adequate reasons,
for the exercise of his discretion to award interest pursuant to s 32 of the Supreme Court Act 1935 (WA) only for the period 8 December 2010 to the date of judgment (rather than from the various dates the loss accrued).

In his amended orders wanted in the appeal, Mr Rayney claims orders, relevantly, as follows:
(a)the appeal be allowed;
(b)the respondent pay Mr Rayney damages on account of economic loss suffered by him from 9 December 2010 to 22 November 2012 and from 10 February 2016 to 24 January 2018, calculated on an after-tax basis using the assumptions specified in proposed order 2 and after making adjustments in accordance with proposed order 2A;
(c)the adjustments referred to in proposed order 2A be determined by a registrar unless otherwise agreed by the parties;
(d)Mr Rayney be awarded interest on damages for economic loss at the rate of 6% per annum calculated in the manner specified in proposed order 3; and
(e)the respondent pay Mr Rayney's costs of the appeal, to be assessed if not agreed.

Mr Rayney's pending defamation appeal: the respondent's notice of contention

In the pending defamation appeal, the respondent relies upon a notice of contention.
The notice of contention alleges:
The learned trial judge's finding that the appellant had not suffered any economic loss as a result of [Detective Senior Sergeant] Lee's comments at the press conference in 2007 after 8 December 2010 can be upheld on grounds other than those relied upon by his Honour and, in particular:
(a)on 25 January 2018, the State Administrative Tribunal (SAT) found that the appellant engaged in professional misconduct within the meaning of the Legal Profession Act 2008 (WA) by:
(i)knowingly engaged in unlawful conduct between about April 2007 and on or after June 2007;
(ii)by knowingly giving false evidence with the intention of misleading the Magistrates Court in an affidavit sworn on 2 February 2009; and
(iii)by knowingly giving false evidence with the intention of misleading the Magistrates Court on 19 November 2009;
(b)on 18 April 2018, SAT found that the appellant lacks the honesty and candour that are essential attributes for a legal practitioner and made orders that report be transmitted to the Supreme Court (Full Bench) regarding the appellant's professional misconduct and recommending that he appellant's name be removed from the roll of persons admitted to the legal profession;
(c)the conduct upon which, on SAT's findings, the appellant is not a fit and proper person to practice as a lawyer had all occurred prior to the period of 8 December 2010; and
(d)in circumstances where the only reason that the appellant would (in the absence of the comments at the press conference in 2007) have been able to earn income as a lawyer after 8 December 2010 was that his own conduct rendering him unfit to do so had not yet been identified and dealt with by the relevant authorities, his loss of any earning capacity ought not fairly be regarded as a consequence of the press conference.

Mr Rayney's pending defamation appeal: the respondent's applications in the appeal dated 22 June 2018 and 20 August 2020 for leave to adduce additional evidence

The respondent has filed two applications in the pending defamation appeal, one dated 22 June 2018 and the other dated 20 August 2020, for leave to adduce additional evidence in the appeal.
The application dated 22 June 2018 seeks leave to adduce into evidence:
(a)the orders of the State Administrative Tribunal (SAT) made 25 January 2018 in Legal Profession Complaints Committee and Rayney (VR 173/2015);
(b)SAT's reasons for decision in Legal Profession Complaints Committee and Rayney;[11]
(c)the orders of SAT made 18 April 2018 in Legal Profession Complaints Committee and Rayney (VR 173/2015); and
(d)SAT's reasons for decision in Legal Profession Complaints Committee and Rayney.[12]
[11] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5.
[12] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 (S).
The application dated 20 August 2020 seeks leave to adduce into evidence:
(a)this court's reasons for judgment in Rayney v Legal Profession Complaints Committee;[13]
(b)the Supreme Court's (Full Bench's) reasons for judgment in Legal Profession Complaints Committee v Rayney.[14]

Mr Rayney's pending defamation appeal: relevant aspects of the respondent's written submissions on the notice of contention and on the disposition of the appeal

[13] Rayney v Legal Profession Complaints Committee [2019] WASCA 104.

[14] Legal Profession Complaints Committee v Rayney [2020] WASC 131.

The respondent asserts in its written submissions on the notice of contention and on the disposition of the appeal, relevantly:
(a)The misconduct upon which SAT based its recommendation that Mr Rayney be removed from the roll of practitioners was that, in 2009, he twice gave false evidence in the Magistrates Court with the intention of misleading the court (the first date being 2 February 2009 and the second being 19 November 2009) [97].
(b)The conduct upon which, on SAT's findings, Mr Rayney was not a fit and proper person to practice as a lawyer occurred before the period during which, on appeal, Mr Rayney claims damages [97].
(c)In that scenario, Mr Rayney is claiming damages for the inability to practice law for a period during which, on SAT's findings, he was not a fit and proper person to practice [98].
(d)Given that the assessment of special damage caused by the defamation necessarily proceeds upon the basis of an assessment of a scenario that is hypothetical (that is, what would have occurred in the absence of the defamation) it is appropriate that the hypothetical assessment be made on the basis that Mr Rayney was practising in circumstances in which he was not a fit and proper person to practice [98].
(e)In that regard, the normative considerations relevant to a finding of causation both at common law and under the Civil Liability Act 2002 (WA), take on particular significance [99].
(f)In other words, according to the respondent, where the reason that Mr Rayney would (in the absence of the defamation) have been able to earn income as a lawyer was that his own conduct rendering him unfit to practice had not yet been identified and dealt with by the relevant authorities, his loss of that earning capacity ought not fairly be regarded as a consequence of the defamation [99].
(g)Those normative considerations relevant to a finding of causation require the identification of the legal policy as to why responsibility for particular loss should be imposed on the tortfeasor [100].
(h)In circumstances where professional misconduct, if identified and dealt with earlier, would have resulted in an earlier determination that a person was not fit to earn particular income, that legal policy should prevent such loss of income being attributed to the tortious conduct [100].
(i)The normative considerations relied upon by the respondent had particular force in relation to the period after 10 February 2016. At all times after that date, there were pending proceedings in relation to Mr Rayney's misconduct. In 2015, as SAT found, Mr Rayney repeated his false evidence. Given that Chaney J found that the alleged conduct 'raised questions' as to Mr Rayney's fitness to practice adversely affecting his earning capacity, the resolution of those questions, adverse to Mr Rayney, provided additional grounds for upholding Chaney J's decision [101].
(j)If, contrary to the respondent's submissions, this court were to conclude that Chaney J should have awarded damages for loss of earning capacity for some or all of the periods claimed by Mr Rayney on appeal (that is, from 9 December 2010 to 22 November 2012 and from 16 February 2016 to 24 January 2018), the finding of misconduct upon which SAT based its recommendation that Mr Rayney's name be removed from the roll would nevertheless be relevant to an assessment of the quantum of his loss of earning capacity during those periods [102].
(k)As Chaney J found that Mr Rayney had not suffered loss of earning capacity as a consequence of the defamation after Mr Rayney was charged with wilful murder, it was unnecessary for his Honour to make any assessment of the extent of Mr Rayney's earning capacity during the periods in question on the appeal [103].
(l)It would be necessary, in making any assessment of the extent of Mr Rayney's earning capacity during the periods in question, to make findings of fact in relation to various specified matters. None of the matters in question were addressed by Chaney J in assessing Mr Rayney's earning capacity after 8 December 2010. There was no evidence at the trial as to some of the matters (for example, the time devoted by Mr Rayney in preparation for his wilful murder trial) as a consequence of the manner in which the trial was run. None of these issues are addressed in Mr Rayney's amended orders wanted. Indeed, the orders sought by Mr Rayney seek a hybrid between an assessment by this court and a retrial [104] ‑ [108].
(m)Given the further facts that would need to be found, it would be necessary for this court to receive further evidence, some of which may be contentious. If the appeal were to be allowed, the parties would need to address this court as to the appropriate orders, including whether a retrial in relation to discrete issues was necessary [109].

Mr Rayney's pending defamation appeal: Mr Rayney's application in the appeal dated 25 August 2020 for leave to adduce additional evidence

Mr Rayney has filed an application in the pending defamation appeal dated 25 August 2020 for leave to adduce additional evidence in the appeal.
The application dated 25 August 2020 seeks leave to adduce into evidence:
(a)Mr Rayney's affidavit sworn 17 August 2020;
(b)redacted bank statements for an account in Mr Rayney's name for the period from 1 April 2017 to 30 September 2017 and for the period from 1 October 2017 to 31 March 2018;
(c)a table which summarises the transactions shown in the bank statements; and
(d)an expert report of Dennis Barton, an actuary, which calculates Mr Rayney's damages including an account of Mr Rayney's earnings during the period from 10 February 2016 to 24 January 2018.
Mr Rayney's affidavit sworn 17 August 2020 annexes copies of the bank statements and the table referred to at [90] above [7] ‑ [8]. Mr Rayney deposes that the bank statements evidenced his earnings during the period from 1 April 2017 to 31 March 2018 [7]. Mr Rayney also explains two of the transactions shown in the bank statements [9] ‑ [10].
In addition, Mr Rayney deposes in his affidavit, relevantly, as follows:
(a)During the period from 8 December 2010 to 23 December 2010 Mr Rayney was in custody and accordingly was unable to work during that period [12].
(b)The restrictive conditions placed upon his practising certificate limited the type of work Mr Rayney was able to do. However:
(i)between 11 February 2011 and 17 March 2011 Mr Rayney was able to provide opinions and advice; and
(ii)from 18 March 2011 until he gave an undertaking not to practice, Mr Rayney was only restricted from appearing as counsel in any jury trials (that is, District Court and Supreme Court criminal matters) and Mr Rayney was not restricted from appearing in those courts in civil matters, nor from appearing as counsel in any other court or tribunal, nor from providing opinions and advice relating to any jurisdiction [13].
(c)The amount of time Mr Rayney spent preparing for the wilful murder trial is difficult to quantify: on some days he spent several hours, and on other days he did not spend any time preparing [14].
(d)Mr Rayney did not have to spend most of his time in preparation because he was not a self-represented litigant. He was represented at the trial by senior counsel, junior counsel and a solicitor. The solicitor was assisted by numerous law student volunteers [15].
(e)Martin AJ did not sit every day from the commencement to the conclusion of Mr Rayney's wilful murder trial [16].
(f)Martin AJ sat on specified dates [17].
(g)Mr Rayney accepts that for the period the trial was listed he would not have been able to appear in court [18].
(h)Mr Rayney would have been able to provide opinions and advice, take briefs for future matters (noting that serious criminal matters may be listed a year in advance) and prepare in respect of those briefs outside of court sitting hours and on dates when the wilful murder trial was not in court [19].
(i)If he had the work, Mr Rayney would have carried it out. The wilful murder trial exhausted all of his savings and assets. He needed an income and he would have accepted work [20].
(j)Mr Rayney would have welcomed the distraction from the trial and the opportunity to concentrate on briefs [21].

Mr Rayney's pending defamation appeal: relevant aspect of Mr Rayney's written submissions in support of his application in the appeal dated 25 August 2020 for leave to adduce additional evidence in the appeal

Mr Rayney asserts in his written submissions in support of his application in the pending defamation appeal dated 25 August 2020 for leave to adduce additional evidence in the appeal, relevantly and on the assumption that grounds 1 and 2 of the appeal have been made out, as follows:
(a)Mr Rayney seeks to adduce the evidence in his affidavit sworn 17 August 2020 in respect of his earning capacity between 9 December 2010 and 22 November 2012 in response to a number of issues raised by the respondent in its written submissions on the notice of contention and on the disposition of the appeal. However, Mr Rayney maintains that evidence in respect of all of those issues was adduced at the trial. Mr Rayney seeks to supplement on appeal the evidence given at the trial in case this court accepts the respondent's assertion that there was no evidence at the trial on some material points [27].
(b)The evidence in Mr Rayney's affidavit which 'appears to be uncontentious' is at pars 12, 13 and 16 ‑ 21 [28] ‑ [33].
(c)The evidence in Mr Rayney's affidavit which 'appears to be contentious' is at pars 14 and 15 of the affidavit where Mr Rayney gives evidence as to the time he spent preparing for the wilful murder trial. It was noted that even though Mr Rayney did not in fact have 'paid legal work to do', Mr Rayney's time was not 'fully consumed with trial preparation'. At first instance, Mr Rayney's expert was not instructed to assume any reduction of Mr Rayney's earning capacity by reason of his preparation for the wilful murder trial. By contrast, the respondent's expert was instructed to assume that Mr Rayney's earning capacity for the period from 1 January 2012 to 15 July 2012 would have been limited to 10% by reason of his preparation for the wilful murder trial. Chaney J made no findings in respect of whether any discount should be applied in calculating Mr Rayney's earning capacity during that period, other than that after 18 March 2011 'Mr Rayney undertook a small amount of work as a solicitor prior to the condition ceasing to apply upon his acquittal in November 2012' [928]. It was submitted on behalf of Mr Rayney that the evidence that Mr Rayney seeks to adduce at pars 14 and 15 of his affidavit is evidence 'that could have been elicited had the respondent cross‑examined [Mr Rayney] on this issue at trial and confirms that the assumptions [that] the respondent's expert [were] instructed to make were without foundation'. The calculation of the respondent's expert, made on the basis of that assumption, should not be accepted if 'the calculation of [Mr Rayney's] loss and damage is revisited on appeal' [34] ‑ [39].
(d)It is not unusual for an appeal court to substitute an award of damages with its own calculation. If this court were to accept the evidence in Mr Rayney's affidavit sworn 17 August 2020, this court would be able to substitute an award of damages with its own calculation without the need for a retrial in respect of the issues raised by the respondent at [104] ‑ [106] of the respondent's written submissions (see [88] above) on the notice of contention and on the disposition of the appeal [41].
(e)Alternatively, if this court was minded to refer the calculation of deductions to a registrar, master or referee, Mr Rayney's affidavit sworn 17 August 2020 should be admitted into evidence in that process [42].

Mr Rayney's pending defamation appeal: the listing of the appeal for hearing

The pending defamation appeal was listed to be heard on 7 September 2020 before Murphy JA, Corboy J and me.

Mr Rayney's defamation appeal: Mr Rayney's application in the appeal dated 3 September 2020 contending, in effect, that Murphy JA, Corboy J and I should disqualify ourselves from hearing the appeal

On 3 September 2020, Mr Rayney filed an application in the pending defamation appeal dated 3 September 2020 contending, in effect, that Murphy JA, Corboy J and I should disqualify ourselves from hearing the appeal.
On 3 September 2020, orders were made, relevantly, that Mr Rayney's application in the appeal be heard on 7 September 2020 and that the hearing of the appeal listed for 7 September 2020 be vacated.
On 7 September 2020, each of Murphy JA, Corboy J and I heard Mr Rayney's application in the appeal dated 3 September 2020. At the conclusion of the hearing, I reserved judgment on the application to the extent it related to me. Each of Murphy JA and Corboy J did likewise.

Mr Rayney's application that I disqualify myself from hearing Mr Rayney's pending defamation appeal: Mr Rayney's submissions

Counsel for Mr Rayney submitted that I should disqualify myself from hearing the pending defamation appeal on the basis that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions that I am required to decide in the appeal.
It was submitted that the reasonable apprehension of bias arises in consequence of my reasoning and conclusions in AW v Rayney.
In his written submissions in support of his application, Mr Rayney contended:
(a)the respondent asserts, in its notice of contention, that Mr Rayney did not suffer any economic loss after 8 December 2010 and seeks to rely upon, amongst other things, the orders and reasons of SAT (which the respondent has applied to have admitted as fresh evidence) made or delivered on 25 January 2018 and 18 April 2018 [13];
(b)the respondent asserts that the defamation should not be considered to be a cause of Mr Rayney's economic loss because Mr Rayney's own conduct (which had not, at the time, been dealt with by the relevant authorities) rendered him unfit to practice law [14];
(c)the respondent asserts, in its notice of contention, that this court should have regard to policy considerations (not raised at first instance) as to whether 'the harm ought fairly be regarded as a consequence of the tortious conduct' [15];
(d)a fair-minded lay observer might reasonably apprehend that a judge hearing the appeal might not bring an impartial mind to the resolution of the questions the judge is required to decide in the appeal if the judge had previously made serious findings of misconduct against Mr Rayney [17];
(e)the respondent seeks to rely upon my reasoning and conclusions in AW v Rayney at [214] ‑ [217], [220] and [259] ‑ [265] in support of Chaney J's finding of fact that the defamation was not a cause of Mr Rayney's economic loss after 10 February 2016 [19];
(f)in AW v Rayney I made 'adverse findings against [Mr Rayney]' and 'expressed clear views about a question of fact which constitutes a live and significant issue in this appeal or about the credit of [Mr Rayney], whose evidence is of significance on such a question of fact' [23];
(g)significantly, 'these adverse findings are relied upon by the respondent as evidence in support of its argument that the appeal should be dismissed' [24] (original emphasis).

Mr Rayney's application that I disqualify myself from hearing Mr Rayney's pending defamation appeal: the respondent's submissions

Counsel for the respondent filed and served written submissions which identified the principles relevant to Mr Rayney's application that I disqualify myself from hearing the pending defamation appeal and addressed the issue of whether any of my reasoning and conclusions in AW v Rayney relate to 'live and significant' issues in the pending defamation appeal.
During her oral submissions, counsel said (appeal ts 26 ‑ 30):
(a)The respondent neither consented to nor opposed Mr Rayney's application.
(b)The normative considerations relied upon by the respondent in its notice of contention raise questions as to the relevance or significance of previous findings made by judicial officers in criminal, civil and professional disciplinary proceedings involving Mr Rayney.
(c)The previous findings will not give rise to a 'live and significant' issue in the pending defamation appeal if there is merely a debate as to the relevance or the significance of those previous findings in the determination of the pending defamation appeal.
(d)The normative considerations relied upon by the respondent in its notice of contention do not give rise to a 'live and significant' issue in the pending defamation appeal because those findings are merely relied upon by the respondent for their relevance or significance.
(e)Chaney J did not reject Mr Rayney's claim for damages for economic loss for some or all of the period from 9 December 2010 to 22 November 2012 or for some or all of the period from 16 February 2016 to 24 January 2018 because of an adverse finding as to the credibility of Mr Rayney or his evidence.
(f)Chaney J was of the view that a person in Mr Rayney's position would be unlikely to have earned any income as a barrister after having been charged with murder.
(g)Mr Rayney's credibility is not in issue in the pending defamation appeal.
(h)If Mr Rayney's appeal is allowed, the respondent's position is that the matter should be remitted to a judge of the General Division for determination of the economic loss issues raised in the appeal.
(i)If Mr Rayney's appeal is allowed, and this court were to decide that the economic loss issues should be determined by this court, including by taking into account Mr Rayney's affidavit sworn 17 August 2020, Mr Rayney's credibility would not be in issue in that determination. The respondent's position would be that this court should determine whether it was likely that a barrister on trial for the murder of his wife would be likely to be briefed to act or advise in connection with unrelated matters. The respondent would not suggest that this court should determine the economic loss issues by rejecting or not accepting the evidence in Mr Rayney's affidavit on the basis of an adverse finding as to his credibility. Mr Rayney's credibility would not arise.
(j)If Mr Rayney's appeal is allowed, and this court were to decide that the economic loss issues should be remitted to and determined by a judge of the General Division, counsel could not say with certainty whether the respondent would seek to cross‑examine Mr Rayney on his affidavit sworn 17 August 2020. However, there would be matters in contest before the judge of the General Division. Those matters would include not only Mr Rayney's affidavit, but also the expert report of the actuary, Mr Barton, which is part of Mr Rayney's application in the appeal dated 25 August 2020 for leave to adduce additional evidence. The respondent would advance its case on the matters in contest either by cross-examination or by submissions or both.

Mr Rayney's application that I disqualify myself from hearing Mr Rayney's pending defamation appeal: the relevant legal principles

The test for the disqualification of a judge on the ground of apprehended bias is whether or not 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. See Webb v The Queen;[15] Ebner v Official Trustee in Bankruptcy;[16] Johnson v Johnson;[17] Michael Wilson & Partners Limited v Nicholls.[18]
[15] Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 67 ‑ 68 (Deane J).
[16] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6] (Gleeson CJ, McHugh, Gummow & Hayne JJ).
[17] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).
[18] Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [31] (Gummow A‑CJ, Hayne, Crennan & Bell JJ).
The application of the test does not involve a prediction about how the judge will in fact approach the resolution of the question. The issue is one of possibility (real and not remote), not probability. See Ebner [7].
However, a judge should not disqualify himself or herself on the basis of a reasonable apprehension of bias unless substantial grounds are established. See Bienstein v Bienstein.[19] As Mason J observed in Re JRL; ex parte CJL:[20]
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.
See also British American Tobacco Australia Services Limited v Laurie.[21]
[19] Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 [36] (McHugh, Kirby & Callinan JJ).
[20] Re JRL; ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352.
[21] British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283 [45] (French CJ), [71] (Gummow J).
Apprehended bias is concerned with whether there is a reasonable apprehension that the judge might not decide the case impartially or without prejudice and not with whether the judge might decide the case adversely to one party. See Re JRL; ex parte CJL (352); Re Polites; ex parte The Hoyts Corporation Pty Ltd.[22]
[22] Re Polites; ex parte The Hoyts Corporation Pty Ltd [1991] HCA 31; (1991) 173 CLR 78, 86 (Brennan, Gaudron & McHugh JJ).
The test for apprehended bias is objective. This is founded in the need for public confidence in the judiciary and gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. The neutrality of a judge is fundamental to the administration of justice. See Johnson [12]; British American Tobacco [139] (Heydon, Kiefel and Bell JJ); Michael Wilson & Partners [32]; Isbester v Knox City Council.[23]
[23] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 [23] (Kiefel, Bell, Keane & Nettle JJ).
The determination of whether a fair‑minded lay observer might reasonably apprehend that the judge might not act impartially and without prejudice raises largely a factual issue, but one which must be considered in the legal, statutory and factual contexts in which the judge is required to make the decision. See Isbester [20].
Although the hypothetical fair‑minded lay observer is not to be taken to have a detailed knowledge of the law, the observer is presumed:
(a)to be reasonable;
(b)not to make snap judgments;
(c)to know that the judge is required, by his or her training, tradition and oath or affirmation, to discard the irrelevant, the immaterial and the prejudicial; and
(d)to be aware of the nature of the decision which the judge is required to make, what is involved in making the decision and all the objective circumstances of the case.
See Livesey v The New South Wales Bar Association;[24] Laws v Australian Broadcasting Tribunal;[25] Re JRL (368) (Brennan J), (371 ‑ 372) (Dawson J); Webb (67 ‑ 68); Johnson [12] ‑ [14]; Isbester [23].
[24] Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, 293 ‑ 294 (Mason, Murphy, Brennan, Deane & Dawson JJ).
[25] Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, 87 ‑ 88 (Mason CJ and Brennan J), 95 (Deane J).
In Ebner [8], Gleeson CJ, McHugh, Gummow and Hayne JJ said that the application of the test for apprehended bias requires two steps. First, the identification of what allegedly might lead a judge to decide a case other than on its legal and factual merits. Secondly, the articulation of the logical connection between the matter complained of and any deviation from the course of deciding the case on its merits. The reasonableness of the asserted apprehension of bias can only be assessed after the two steps have been performed. See also Isbester [21].
In Minister for Immigration and Multicultural Affairs v Jia Legeng,[26] Hayne J observed that an assertion that a decision-maker has prejudged or will prejudge an issue, and an assertion that there is a real likelihood that a fair-minded lay observer might reasonably apprehend that the decision-maker might not act impartially and without prejudice, in effect makes a statement which has several distinct elements at its foundation. His Honour elaborated:
First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.
[26] Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 [185].
In Livesey, proceedings were commenced in the Court of Appeal of New South Wales to strike the name of a barrister from the roll of counsel on the ground of his unprofessional conduct. It was necessary for the Court of Appeal to determine certain matters of fact and to hear evidence from a witness in relation to them. In previous proceedings in which the barrister had not been a party or a witness, two members of the Court had expressed the view that the barrister had actively and knowingly participated in a corrupt agreement or a conspiratorial arrangement to secure the release of his client on bail by the use of the client's own money. It was common ground that such an agreement or arrangement would constitute a criminal conspiracy. In the Court of Appeal, objection was taken on behalf of the barrister to the two members of the Court sitting upon the case. The judges refused to withdraw. The Court of Appeal found that the charges of impropriety were sustained and ordered that the barrister be struck off. The High Court allowed the barrister's appeal. Mason, Murphy, Brennan, Deane and Dawson JJ held (300):
It is … apparent that, in a case such as the present … a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact. The consideration that the relevant question of fact may be conceded or that the relevant person may not be called as a witness if the particular judge sits would not, of course, avoid the appearance of bias. To the contrary, it would underline the need for the judge to refrain from sitting. (emphasis added)
The facts and the reasoning which underpinned the High Court's decision to allow the barrister's appeal were as follows (300):
A central issue in the main charge against the appellant was whether the money which Ms. Bacon lodged as bail was her own money. Two of the three members of the Court of Appeal, which was hearing the proceedings as a court of first instance, had already held in a previous case that it plainly was not. Another central issue in the main charge was whether, if the money lodged were not Ms. Bacon's, the appellant knew that that was so. Again, two members of the Court had held in the previous case that he clearly did. Ms. Bacon was a possible and critical witness on the appellant's behalf and was in fact called to give evidence. Two members of the Court had, in the previous case, expressed the strong view that she was a witness without credit whose evidence on the matters relevant to the proceedings against the appellant should be rejected. The question which arises is whether, in these circumstances, either the appellant or a fair-minded observer might have entertained a reasonable apprehension that the views which the two members of the Court of Appeal had formed and expressed in the Bacon Case might result in the proceedings against the appellant being affected by bias by reason of prejudgment. With due respect to the members of the Court of Appeal who saw the matter differently, it follows from what we have said that we consider that that question must be answered in the affirmative.
In British American Tobacco [139], Heydon, Kiefel and Bell JJ observed that it was recognised in Livesey that a fair-minded lay observer might reasonably apprehend that 'a judge who has found a state of affairs to exist, or has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case'. Their Honours added that the recognition in Livesey was 'a recognition of human nature' [139].

Mr Rayney's application that I disqualify myself from hearing Mr Rayney's pending defamation appeal: the merits of the application

Counsel for Mr Rayney asserted that the passages from my reasons in AW v Rayney set out at [36] above might lead me to decide the pending defamation appeal other than on its legal and factual merits.
The logical connection between the reasoning and conclusions in the passages from my reasons in AW v Rayney set out at [36] above, on the one hand, and any deviation by me from the course of deciding the pending defamation appeal on its merits, on the other, is alleged to be:
(a)a question of fact which constitutes a live and significant issue in the pending defamation appeal is whether the defamation should not be considered to be a cause of Mr Rayney's alleged economic loss because Mr Rayney's own conduct (which had not, at the time, been dealt with by the relevant authorities) rendered him unfit to practice law;
(b)the respondent seeks to rely upon the reasoning and conclusions in the passages from my reasons in AW v Rayney set out at [36] above in support of Chaney J's finding of fact that the defamation was not a cause of Mr Rayney's alleged economic loss after 10 February 2016;
(c)the making by me in AW v Rayney of 'adverse findings against [Mr Rayney]' and the expression by me of 'clear views about a question of fact which constitutes a live and significant issue in this appeal or about the credit of [Mr Rayney], whose evidence is of significance on such a question of fact'; and
(d)the 'adverse findings' I made against Mr Rayney in AW v Rayney are relied upon by the respondent 'as evidence in support of its argument that the appeal should be dismissed' (original emphasis).
In my opinion, the hypothetical fair-minded lay observer should be presumed to know or be aware of all the objective circumstances of the case, including the following:
(a)In AW v Rayney, I sat as a member of the Court of Appeal and, with the other members of the court, allowed AW's appeal. Mr Rayney did not give evidence before this court in that case. Mr Rayney did not challenge in this court any of the magistrate's findings of fact referred to at [31] and [33] above. In my reasons for judgment, I engaged in the reasoning and arrived at the conclusions summarised at [36] above.
(b)I was not a member of the court which heard the State's appeal against the judgment of acquittal entered by Martin AJ after Mr Rayney's trial on the charge that he had wilfully murdered Mrs Rayney.
(c)I was not a member of the court which heard the appeal in Legal Profession Complaints Committee v Rayney [2017] WASCA 78 or a member of the Supreme Court (Full Bench) which decided Legal Profession Complaints Committee v Rayney [2020] WASC 131.
(d)I was not involved in any of the litigation between Mr Rayney and the Legal Practice Board or the LPCC in SAT.
(e)Neither Mr Rayney nor his expert, Mr Barton, has given oral evidence in any proceeding in which I have sat as a judge.
(f)The background facts relating to Mr Rayney's defamation action against the respondent and the outcome of those proceedings as set out at [1] ‑ [12] above.
(g)The issues to be decided by this court in Mr Rayney's pending defamation appeal are defined by the grounds of appeal in the appellant's case (that is, Mr Rayney's case); Mr Rayney's application in the appeal dated 25 August 2020 for leave to adduce additional evidence; the grounds in the respondent's notice of contention; the respondent's applications in the appeal dated 22 June 2018 and 20 August 2020 for leave to adduce additional evidence; and Mr Rayney's amended orders wanted in the appeal.
(h)Ground of appeal 1 in the appellant's case (that is, Mr Rayney's case) alleges, in essence, that Chaney J made an error of law in failing to give reasons, alternatively in failing to give adequate reasons, for finding that the defamation was not a cause of Mr Rayney's economic loss after 10 February 2016; alternatively, his Honour erred in law in finding against the evidence that the defamation was not a cause of Mr Rayney's economic loss after 10 February 2016. Ground of appeal 2 alleges, in essence, that Chaney J made various errors in finding that the murder charge laid on 8 December 2010 and the restrictive condition imposed upon Mr Rayney's practising certificate relevantly broke the chain of causation between the defamation and the reduction in Mr Rayney's capacity to earn income as a barrister. Ground of appeal 3 alleges, in essence, that, having found that Mr Rayney suffered economic loss over a period of time, Chaney J erred in law in failing to give any reasons, alternatively in failing to give adequate reasons, for the exercise of his discretion to award interest only for the period from 8 December 2010 to the date of judgment (rather than from the various dates on which the loss accrued).
(i)The grounds in the respondent's notice of contention allege, in essence, that Chaney J's finding that Mr Rayney did not suffer any economic loss as a result of the defamation can be upheld on additional grounds, namely SAT's finding on 25 January 2018 that Mr Rayney had engaged in professional misconduct; SAT's finding on 18 April 2018 that Mr Rayney lacks the honesty and candour that are essential aspects for a legal practitioner; the conduct which, on SAT's findings, makes Mr Rayney not a fit and proper person to practice as a lawyer all occurred before 8 December 2010; and, in circumstances where the only reason that Mr Rayney would (absent the defamation) have been able to earn income as a lawyer after 8 December 2010 was that his own conduct rendering him unfit to practice as a lawyer had not yet been identified and dealt with by the relevant authorities, Mr Rayney's loss of any earning capacity ought not fairly be regarded as a consequence of the defamation.
(j)The nature of the additional evidence sought to be adduced by Mr Rayney in the appeal, as summarised at [89] ‑ [92] above, and the nature of the evidence sought to be adduced by the respondent in the appeal, as set out at [85] ‑ [87] above.
(k)The nature of the amended orders wanted sought by Mr Rayney in the appeal as described at [82] above.

I am satisfied that there is no proper basis upon which a fair‑minded lay observer, who knows or is aware of all the objective circumstances of the case, including the matters set out at [117] above, might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the questions I would be required to decide if I sat as a member of the court hearing the pending defamation appeal.
My reasons for that opinion are as follows.
As to the passage from my reasons in AW v Rayney set out at [36(a)] above, I concluded that the magistrate had breached the rules of procedural fairness by failing to provide AW with an unredacted copy of Mr Rayney's affidavit. That conclusion is not relied upon by the respondent in its notice of contention. The conclusion did not involve a finding that is either live or significant in the pending defamation appeal.
As to the passages from my reasons in AW v Rayney set out at [36(b) and (c)] above, I concluded that Mr Rayney did not have a dominant purpose in recording the communications with third parties that would attract legal professional privilege. Those conclusions are not relied upon by the respondent in its notice of contention. The conclusions did not involve findings that are either live or significant in the pending defamation appeal.
As to the passages from my reasons in AW v Rayney set out at [36(d), (e), (f) and (i)] above, I concluded that Mr Rayney had breached the Surveillance Devices Act, including because the recordings made by Mr Rayney were not reasonably necessary for the protection of his lawful interests. Those conclusions were consistent with later findings by SAT which underpinned its decision that Mr Rayney had engaged in professional misconduct. See Legal Profession Complaints Committee v Rayney [2018] WASAT 5 [329] ‑ [332]. SAT's findings are relied upon by the respondent in its notice of contention. However, those findings are not challenged (and they could not be challenged) in the pending defamation appeal. My conclusion in AW v Rayney that Mr Rayney breached the Surveillance Devices Act, including because the recordings made by Mr Rayney were not reasonably necessary for the protection of his lawful interests, did not involve findings that are live in the pending defamation appeal.
As to the passages from my reasons in AW v Rayney set out at [36(g) and (h)] above, I concluded that Mr Rayney had not contended before the magistrate that the recordings made by Mr Rayney were reasonably necessary for the protection of his lawful interests. That conclusion is not relied upon by the respondent in its notice of contention. The conclusion did not involve findings that are either live or significant in the pending defamation appeal.
Further, grounds of appeal 1 and 2 in the appellant's case (that is, Mr Rayney's case) require this court to determine whether Chaney J erred as alleged in finding that Mr Rayney had not established causation in respect of the period after 8 December 2010. I have not previously decided or expressed a view in relation to that issue.
Further, ground of appeal 3 in the appellant's case (that is, Mr Rayney's case) requires this court to determine whether Chaney J erred as alleged in the exercise of his discretion to award interest. I have not previously decided or expressed a view in relation to that issue.
Further, I have not previously decided or expressed a view in relation to the issues raised in Mr Rayney's application dated 25 August 2020 for leave to adduce additional evidence in the appeal or the issues raised in the respondent's applications dated 22 June 2018 and 20 August 2020 for leave to adduce additional evidence in the appeal.
Further, if this court grants the respondent leave to adduce the additional evidence referred to in the respondent's applications in the appeal dated 22 June 2018 and 20 August 2020, the grounds in the respondent's notice of contention require this court to determine whether, having regard to the normative or policy considerations relied upon by the respondent, Mr Rayney's loss of any earning capacity in respect of the period after 8 December 2010 ought fairly be regarded as a consequence of the defamation. I have not previously decided or expressed a view in relation to that issue.
Further, no issue arises in this appeal as to whether Mr Rayney in fact engaged in professional misconduct as found by SAT, upheld on appeal to this court, and acted upon by the Supreme Court (Full Bench).
As I have mentioned:
(a)on 25 January 2018, SAT found, in effect, that Mr Rayney had engaged in professional misconduct;
(b)subsequently, SAT made and transmitted a report to the Supreme Court (Full Bench) on SAT's findings that Mr Rayney had engaged in professional misconduct with a recommendation that Mr Rayney's name be removed from the roll of persons admitted to the legal profession;
(c)on 2 August 2019, this court (Murphy JA, Corboy J and Smith J) dismissed Mr Rayney's appeal against SAT's decision that Mr Rayney had engaged in professional misconduct and SAT's decision to make and transmit a report to the Supreme Court (Full Bench); and
(d)on 21 April 2020, the Supreme Court (Full Bench) (Kenneth Martin J, Corboy J and Smith J) ordered, on the application of the LPCC and without any opposition from Mr Rayney, that Mr Rayney's name be removed from the roll of practitioners.
Further, Mr Rayney's credibility is not in issue in the pending defamation appeal.
If Mr Rayney's appeal is allowed, the usual order that this court would make, in the circumstances, would be to remit the economic loss issues to a judge of the General Division for further hearing and determination. See Lloyd v Faraone;[27] CSR Readymix (Australia) Pty Ltd v Payne.[28]
[27] Lloyd v Faraone [1989] WAR 154, 167 ‑ 168 (Kennedy J; Brinsden J agreeing).
[28] CSR Readymix (Australia) Pty Ltd v Payne [1998] 2 VR 505, 516 (Winneke P; Hayne and Batt JJA agreeing).
If Mr Rayney's appeal is allowed, and this court were to decide, contrary to the usual order, that the economic loss issues should be determined by this court (with or without the involvement of a registrar), including by having regard to Mr Rayney's affidavit sworn 17 August 2020, no issues as to Mr Rayney's credibility would arise.
The matters deposed to by Mr Rayney, and the annexures referred to, in pars 1 to 13 and 16 to 18 of his affidavit are concerned with matters of objective fact and do not depend upon Mr Rayney's credibility.
Mr Rayney deposes in pars 19, 20 and 21 of his affidavit, relevantly, that he would have been able to provide opinions and advice, take briefs for future matters and prepare in respect of those briefs outside of the court's sitting hours during his wilful murder trial, including on dates when the trial judge was not sitting; if he had the work he would have carried it out; and he would have welcomed the distraction from the trial and the opportunity to concentrate on briefs. The respondent's case in relation to those matters (as explained by counsel for the respondent in her submissions: see [102(i)] above) is that this court should determine whether and, if so, to what extent it was likely that a barrister on trial for the wilful murder of his wife would be likely to be briefed to act or advise in connection with unrelated matters. The court's determination of that issue involves an objective assessment as to the likelihood of Mr Rayney being briefed. This would necessarily be a hypothetical question and require an evaluation of circumstances which did not in fact happen. The likelihood of Mr Rayney having been briefed would be inferred by reference to the objective facts and probabilities.
Mr Rayney's hourly and daily rates, at the material time, for his services as a barrister and his skill and ability, at the material time, to carry out satisfactorily any work he might have received are not in dispute. Similarly, Mr Rayney's expenses in connection with his work as a barrister are not in dispute.
Any required determination of Mr Rayney's earning capacity at any material time will involve an objective assessment by reference to the objective facts and probabilities.
Further, I have not previously made a decision or expressed a view in relation to the merits of the expert reports relied upon by Mr Rayney and the respondent at the trial before Chaney J or the expert report of Mr Barton sought to be relied upon by Mr Rayney in the pending defamation appeal. Also, I have not previously made a decision or expressed a view as to the competence or reliability of any of the experts including Mr Barton.
In any event, even if an issue were to arise in the pending defamation appeal as to Mr Rayney's credibility in relation to any of the matters to which he has deposed in his affidavit sworn 17 August 2020, there is no proper basis for any reasonable apprehension that, as a consequence of my reasoning and conclusions in AW v Rayney, I might have prejudged Mr Rayney's credibility generally or in connection with those matters or I might fail to assess his credibility impartially and without prejudice generally or in connection with those matters.
The passages from my reasons in AW v Rayney set out at [36] above:
(a)involved questions of law; or
(b)were based upon the facts as found by the magistrate, the facts that were not seriously in contest and the objective probabilities.
For example, the adverse findings of fact in relation to Mr Rayney which I have summarised at [33] above were made by the magistrate, having regard to Mr Rayney's evidence before his Honour, and Mr Rayney did not challenge any of those findings on appeal to this court.
There is no logical connection between the passages from my reasons in AW v Rayney set out at [36] above and any deviation from the course of deciding the pending defamation appeal on its merits. There is no reasonable basis for the asserted apprehension of bias.
I am therefore satisfied that I should not disqualify myself.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KS
Associate to the Honourable Justice Buss
9 DECEMBER 2020