Rayney v The State of Western Australia [No 2]
[2020] WASCA 207
•9 DECEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RAYNEY -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2020] WASCA 207
CORAM: MURPHY JA
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 of 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):
Calder v Boyne Smelters Ltd [1991] 1 Qd R 325
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
CSR Readymix (Australia) Pty Ltd v Payne [1998] 2 VR 505
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Ferguson v The State of South Australia [2018] SASC 90
Government Insurance Office (NSW) v Evans (1990) 21 NSWLR 564
Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56; (1999) 166 ALR 302
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Legal Profession Complaints Committee and Rayney [2016] WASAT 142
Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 (S)
Legal Profession Complaints Committee v Rayney [2020] WASC 131
Legal Professional Complaints Committee and Rayney [No 2] [2018] WASAT 5
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Lloyd v Faraone [1989] WAR 154
R v Masters (1992) 26 NSWLR 450
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 Polites; Ex parte Hoyts Corporation Pty Ltd) [1991] HCA 25; (1991) 173 CLR 78
Smith v Director‑General of Transport [2004] WASCA 64
The State of Western Australia v Rayney [2013] WASCA 219
The State of Western Australia v Rayney [No 3] [2012] WASC 404
Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375
MURPHY JA:
Introduction
The appellant (Mr Rayney) seeks that I recuse myself from hearing the appeal. I do not propose to do so for the reasons which follow.
The appeal is brought by Mr Rayney against the decision of Chaney J in Rayney v The State of Western Australia [No 9][1] (primary decision).
[1] Rayney v The State of Western Australia [No 9] [2017] WASC 367.
Mr Rayney was a barrister who was arrested and charged on 8 December 2010 with murdering his wife. The murder trial was by judge alone. On 1 November 2012, Mr Rayney was acquitted. On 20 September 2007, some three years prior to his arrest, a police officer involved in the murder investigation used words at a press conference which Mr Rayney alleged bore the imputation that he had murdered his wife.[2] Mr Rayney commenced proceedings against the State for defamation. It is those proceedings with which Chaney J dealt in the primary decision. Chaney J found the State liable to Mr Rayney for defamation for the statement at the press conference. Chaney J ordered the State to pay Mr Rayney the sum of $846,180.82 for damages for non‑economic loss (including interest) and $1,777,235 for damages for economic loss (including interest).
[2] Primary decision [1].
In relation to damages for economic loss, the judge ordered damages from the date of the defamation (20 September 2007) up to the date when Mr Rayney was arrested and charged with murder on 8 December 2010. His Honour held that the defamatory statement at the press conference on 20 September 2007 was not causative of economic loss after 8 December 2010. His Honour found, in effect, that insofar as Mr Rayney suffered loss of employment as a barrister after 8 December 2010, it was attributable solely to the murder charge and its sequelae (including restrictions on his practising certificate).
By this appeal, Mr Rayney seeks orders increasing his damages for economic loss. The principal complaint is that his Honour erred in finding that the defamatory statement at the press conference on 20 September 2007 was not a continuing cause of Mr Rayney's loss of employment as a barrister after 8 December 2010.[3]
[3] There is also an issue about his Honour's assessment of interest on the economic loss component of damage which was awarded.
At trial, Mr Rayney claimed damages for economic loss in respect of the period from 20 September 2007 (the date of the press conference) to 2029 (when he would have retired from practice aged 67). In this appeal, however, his claim is for additional damages up to the period ending 24 January 2018. That date has significance because of other events involving Mr Rayney which occurred during and following the conclusion of the defamation action, a number of which were referred to by Chaney J (insofar as they were then known) in the primary decision. In broad terms, those events were as follows.
Mr Rayney elected to, and had, a judge alone trial of the murder charge. Mr Rayney was acquitted,[4] and an appeal by the State was unsuccessful.[5] However, the trial judge, Martin AJ, made certain adverse findings about Mr Rayney in the course of his judgment, including that he had deliberately given false evidence on oath when claiming legal professional privilege over certain audio‑recordings that he had made of his late wife in a period prior to her disappearance and death.[6] On 16 November 2012, the Legal Practice Board issued a notice to Mr Rayney of its intention to cancel his practising certificate. Mr Rayney was told that the reason for this was because of the various adverse findings made against him by Martin AJ in the criminal matter.[7]
[4] The State of Western Australia v Rayney [No 3] [2012] WASC 404.
[5] The State of Western Australia v Rayney [2013] WASCA 219.
[6] The State of Western Australia v Rayney [No 3] [2012] WASC 404 [1594].
[7] Primary decision [929].
Further, in 2015, the Legal Profession Complaints Committee (LPCC) commenced disciplinary proceedings in the State Administrative Tribunal (Tribunal) against Mr Rayney alleging, in broad terms, that he was guilty of professional misconduct by (1) deliberately giving false evidence on oath to a magistrate when claiming legal professional privilege over recordings he had made of Mrs Rayney, and (2) knowingly contravening the Surveillance Devices Act 1998 (WA) in making the recordings. Mr Rayney applied to have those proceedings against him dismissed summarily as constituting an abuse of process. That application was successful in the Tribunal,[8] but the summary dismissal decision was overturned on appeal[9] and the matter remitted to the Tribunal (differently constituted) to determine the disciplinary proceedings on their merits.
[8] Legal Profession Complaints Committee and Rayney [2016] WASAT 142.
[9] Legal Profession Complaints Committee v Rayney [2017] WASCA 78.
By the time Chaney J made final orders in the defamation proceedings (on 20 December 2017), the disciplinary proceedings had been heard, but the Tribunal had not delivered its judgment.
On 25 January 2018, the Tribunal delivered its reasons for judgment in the disciplinary proceedings (Misconduct Decision). By the Misconduct Decision, the Tribunal essentially upheld the complaints of the LPCC and found that Mr Rayney was guilty of professional misconduct, in that:[10]
1.The making of the recordings involved a premeditated and sustained breaking of the law over a period of months, demonstrating his disregard for the law. The conduct would justify a finding that Mr Rayney is not a fit and proper person to engage in legal practice, and would reasonably be regarded as disgraceful or dishonourable by Mr Rayney's professional colleagues of good repute.
2.In the Magistrates Court, when seeking to sustain a claim for legal professional privilege over the recordings, Mr Rayney gave false evidence in an affidavit in February 2009, as well as when giving oral evidence in November 2009. The false evidence was knowingly false and given with the intention of misleading the court. The conduct would justify a finding that Mr Rayney is not a fit and proper person to engage in legal practice, and would reasonably be regarded as disgraceful or dishonourable by Mr Rayney's professional colleagues of good repute.
[10] Legal Professional Complaints Committee and Rayney [No 2] [2018] WASAT 5 [359] - [369].
After the Misconduct Decision, the Tribunal heard submissions on penalty, and on 18 April 2018, delivered its reasons on penalty in Legal Profession Complaints Committee v Rayney [No 2][11] (Penalty Decision). In the Penalty Decision, the Tribunal found that in addition to knowingly giving false evidence in the Magistrates Court in 2009 in relation to his claim for legal professional privilege, Mr Rayney had also knowingly given false evidence about such matters:[12]
1.In 2015, in proceedings before the Tribunal in which he sought to set aside the Legal Practice Board's decision to cancel his practising certificate.
2.In 2017, in his evidence in the defamation proceedings before Chaney J.
3.In 2017, in the hearing of the professional misconduct proceedings before the Tribunal.
[11] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 (S).
[12] Penalty Decision [126].
In its order, the Tribunal, amongst other things, made and transmitted a report to the Supreme Court (Full Bench) on the Tribunal'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. The Tribunal also made certain suspension orders suspending him from practice in the meantime on certain conditions.
Mr Rayney appealed the Misconduct Decision and the Penalty Decision. The appeal was dismissed: Rayney v Legal Profession Complaints Committee[13] (the Disciplinary Appeal Decision).
[13] Rayney v Legal Profession Complaints Committee [2019] WASCA 104.
On 21 April 2020, Mr Rayney was struck off the roll of practitioners by the Full Bench, pursuant to the Tribunal's report: Legal Profession Complaints Committee v Rayney[14] (the Strike‑Off Decision). Mr Rayney did not oppose the application to strike his name off the roll.
[14] Legal Profession Complaints Committee v Rayney [2020] WASC 131.
The issues in this appeal
The grounds of appeal
As noted earlier, Mr Rayney, relevantly and in substance, challenges the primary judge's finding that the defamatory statement on 20 September 2007 did not continue to be a cause of Mr Rayney's economic loss after 8 December 2010 (the date of his arrest for murder).
In his amended appellant's case, Mr Rayney's grounds of appeal are to the following effect.[15]
[15] WB 6 - 8.
Ground 1 alleges that the judge:
(a)erred in law by failing to give reasons, or adequate reasons, for his finding that the defamatory publication was not a cause of Mr Rayney's economic loss 'after 10 February 2016'; or
(b)alternatively, erred in fact in that the finding was against the evidence.
Ground 2 alleges that the judge:
(a)erred in fact in finding that the murder charge on 8 December 2010 and the restrictive condition placed on Mr Rayney's practising certificate relevantly broke the chain of causation in relation to his claim for economic loss in the period after 8 December 2010;
(b)erred in law by failing to provide reasons for rejecting, or failing to have regard to, the evidence of Mr Paul Meyer and Mr Henri Yi‑Jin Chew, 'to the effect that the defamation [of 20 September 2007] caused them as solicitors not [to] brief [Mr Rayney]' after 8 December 2010; and
(c)erred in law by failing to provide reasons for rejecting Mr Rayney's evidence to the effect that he was unable to earn his previous level of income as a barrister despite the reinstatement of his practising certificate on 10 February 2016.
Also as noted earlier, in this appeal, Mr Rayney does not seek orders for additional damages in that regard beyond 25 January 2018 (the date of the Misconduct Decision). His submissions on this topic include:[16]
26A[Mr Rayney] has limited his appeal to economic losses up to 24 January 2018.
26BAccordingly, to the extent that there were events after 24 January 2018 that affected [Mr Rayney's] earning capacity, further damaged his reputation or could be argued to constitute a break in the chain of causation, they are not relevant to this appeal.
The State's notice of contention and application to adduce additional evidence
[16] Appellant's amended submissions, pars 26A - 26B; WB 16.
On the other hand, the State, including by its notice of contention in the appeal, contends (inter alia) that the Misconduct Decision and the Penalty Decision are relevant to the proper disposition of Mr Rayney's appeal. The State has, in that regard, applied to adduce as additional evidence in the appeal the Misconduct Decision, the Penalty Decision, the Tribunal's orders in relation thereto, the Disciplinary Appeal Decision, and the Strike‑Off Decision.[17] In support of the State's application dated 22 June 2018, Ms Lindley, a solicitor, affirmed an affidavit on 22 June 2018 in which she referred to (1) the ground of appeal alleging that Chaney J erred in finding that the defamatory statement was not a cause of Mr Rayney's economic loss after 10 February 2016, and (2) the orders sought by Mr Rayney, including an order that the State pay damages on account of economic loss suffered from 10 February 2016 ‑ 24 January 2018.[18] Ms Lindley stated:[19]
I believe, based on the above evidence [as to the Tribunal's Misconduct Decision and Penalty Decision findings and orders], that, in the event that this court upholds that ground of appeal [concerning causation after 10 February 2016], a relevant consideration in determining the quantum of [Mr Rayney's] future economic loss is whether [Mr Rayney] had, and continues to have, the ability to earn income as a legal practitioner from 10 February 2016 to 24 February 2018 [sic - 24 January 2018].
I believe that the outcome of the [Tribunal] proceedings is also relevant to the determination of the issues raised by [the State] in its Notice of Contention.
[17] Respondent's applications filed 22 June 2018 and 20 August 2020; substituted YB 1, 151.
[18] Ms Lindley's affidavit, pars 19 - 20; substituted YB 6.
[19] Ms Lindley's affidavit, pars 21 - 22; substituted YB 6 - 7.
The State's submissions include:[20]
95.In an effort to avoid the effect of the [Tribunal's] findings, [Mr Rayney's] amended case limits the claim for economic loss up to 24 January 2018 …
96.In the [State's] submission, the relevance of the [Tribunal's] findings and orders cannot be so easily circumscribed.
97.Significantly, the misconduct upon which [the Tribunal] based its recommendation that [Mr Rayney] be removed from the roll of persons admitted to the legal profession was that, in 2009, he twice provided false evidence to the Magistrates Court with the intention of misleading the Court … The conduct, upon which, on [the Tribunal's] findings, [Mr Rayney] was not a fit and proper person to practice as a lawyer had all occurred prior to the period during which, on appeal, [Mr Rayney] now claims damages.
98.In that scenario, [Mr Rayney] is claiming damages for the inability to practice law, for a period during which, on [the Tribunal's] findings, he was not a fit and proper person to do so. Given that the assessment of special damage caused by the defamation necessarily proceeds on the basis of an assessment of a scenario that is hypothetical (ie what would have occurred in absence of the defamation) it is appropriate that that 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 do so.
99.In this regard, the normative considerations relevant to a finding of causation both at common law[21] and under the Civil Liability Act take on particular significance … [W]here the only reason that [Mr Rayney] would (in the absence of the tortious conduct) have been able to earn income as a lawyer 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 that earning capacity ought not fairly be regarded as a consequence of the tortious conduct.
100.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. In circumstances where professional misconduct, if earlier identified and dealt with, would have resulted in an early determination that a person was not fit to earn particular income … that legal policy should prevent such loss of income to be attributed to the tortious conduct.
101.This proposition has particular force … in relation to the period after 10 February 2016. At all material times after that date, there were proceedings on foot in relation to [Mr Rayney's] misconduct and, as [the Tribunal] also found, [Mr Rayney] had repeated his false evidence before [the Tribunal] in 2015 (as well as before [the Tribunal] and the Supreme Court in 2017). Given that [Chaney J] found that the alleged conduct 'raised questions' as to [Mr Rayney's] fitness to practice adversely effecting his earning capacity; fortiori the resolution of those questions, adverse to [Mr Rayney's] fitness to practise, provide additional grounds for upholding [Chaney J's] decision.
[20] Respondent's submissions, pars 95 - 101; WB 70 - 71.
[21] Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 [11].
In response to such submissions, Mr Rayney submits:[22]
[22] Appellant's amended submissions in response to respondent's answer and in reply to notice of contention, pars 37 - 38, 46 - 49; WB 135 - 138.
37.[Mr Rayney] does not concede [the State's] notice of contention as to the extent that any conduct of [Mr Rayney] 'had not yet been identified and dealt with by the relevant authorities', such conduct is irrelevant to the question of whether damages for economic loss ought to be awarded for that period.
38.The only relevant comparison to be made is [Mr Rayney's] earning capacity following the defamatory publication, versus [Mr Rayney's] earning capacity in the hypothetical scenario of there being no defamatory publication.
…
46.The only relevant 'hypothetical' scenario is one where the defamation had not occurred; the law does not allow [the Court] to overlay a further hypothetical factual scenario when determining liability or quantum of damages.
47.As noted in Gatley on Libel and Slander, …:
'"[F]actual causation" of damage is no doubt a necessary part of establishing a claim for substantial damages for libel and that involves a hypothetical question of what would have happened if the defendant had not published the defamatory words, but a claimant is not to be deprived of the substance of his remedy merely because the words might have been published by others or in circumstances in which there would have been a defence to a claim.'
48.Similarly, [Mr Rayney] submits that he should not be deprived of the substance of his remedy merely because the words might have been published in circumstances where (with the benefit of a subsequent finding) he was at the time not considered to be a fit and proper person to practise law.
49.Contrary to [the State's] submissions … it is not 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 do so'. [Mr Rayney] was entitled to practice, and did practice, during the period claimed. [The State] must take [Mr Rayney] as it finds him.
Orders wanted
Mr Rayney, in his 'amended orders wanted' in his appellant's case, does not seek orders that the matter be remitted to a trial judge for the determination of damages if he succeeds in the appeal. Rather, by this appeal, Mr Rayney seeks, in effect, orders that he recover damages for economic loss (Additional Damages) for the periods:[23]
1.9 December 2010 - 22 November 2012.
2.10 February 2016 - 24 January 2018.
[23] Amended orders wanted, par 2; WB 21. For other reasons which are unnecessary to go into, in relation to his claim for damages after 8 December 2010, Mr Rayney excludes the period 23 November 2012 - 9 February 2016.
Mr Rayney seeks orders to the effect that the Additional Damages:
1.be calculated on the following assumptions:[24]
[24] Amended orders wanted, par 2; WB 22.
(a)a charge out rate of $450 per hour during the financial year ending 30 June 2011, $475 per hour during the financial year ending 30 June 2012 and $500 per hour in respect of the remainder (ie, from 1 July 2012 onwards);
(b)Mr Rayney would have achieved 2,000 billable hours per year; and
(c)the applicable annual expenses of Mr Rayney were $104,000 per year.
2.be adjusted to take into account, by way of deduction, income that he actually earned and received during the period 9 December 2010 - 22 November 2012 and 10 February 2016 - 24 January 2018, 'such adjustment to be determined by a Registrar unless otherwise agreed by the parties'.[25]
Mr Rayney's application to adduce additional evidence in the appeal
Mr Rayney's application filed 25 August 2020
[25] Amended orders wanted, par 2A; WB 21 - 22.
By his application dated 25 August 2020,[26] Mr Rayney seeks an order that the following documents be adduced into evidence before the Court of Appeal, or upon any reference by the court to a registrar or other officer for calculation or determination of damages in the event that Mr Rayney succeeded in his appeal:
1.Redacted bank statements of Mr Rayney for the periods 1 April 2017 ‑ 30 September 2017 and 1 October 2017 ‑ 31 March 2018.
2.A summary table of the transactions shown in the bank statements prepared by his solicitors.
3.A further expert report of Mr Dennis Barton, calculating Mr Rayney's damages (accounting for his earnings during the period 10 February 2016 ‑ 24 January 2018).
4.Mr Rayney's affidavit of 17 August 2020.
Mr Barton's further expert evidence
[26] Substituted YB 439 - 440.
Ms Comley's affidavit in support of Mr Rayney's application, sworn on 25 August 2020, annexed a letter of instructions from Mr Rayney's solicitors to Mr Barton dated 17 August 2020 and a further report of Mr Barton dated 24 August 2020.[27]
[27] Substituted YB 456 - 482.
In relation to Mr Barton's further report, Mr Barton was asked to make the following assumptions:
1.Mr Rayney's charge‑out rate would have been (i) $450 per hour up to 30 June 2011, (ii) $475 per hour during the period 1 July 2011 to 30 June 2012 and (iii) $500 per hour after 1 July 2012.
2.Mr Rayney would have achieved 2,000 billable hours per annum (subject to reduction on the basis of points 6(a) and 6(b) below).
3.Mr Rayney's expenses were $104,000 per annum.
4.In the period 9 December 2010 - 22 November 2012:
(a)Mr Rayney's actual pre‑tax income for the financial year ended 30 June 2011 was $143,910 and his after‑tax income in the loss period for that financial year was $58,656;
(b)Mr Rayney's actual pre‑tax income for the financial year ended 30 June 2012 was $49,613 and his after‑tax income in that financial year was $41,150; and
(c)Mr Rayney had no actual pre‑tax income for the financial year ended 30 June 2013.
5.In the period 10 February 2016 ‑ 24 January 2018, Mr Rayney's actual income was as shown in Annexure C (Annexure C was not, however, annexed to Ms Comley's affidavit).
6.In the period 9 December 2010 ‑ 22 November 2012:
(a)Mr Rayney would not have worked whilst being held in custody in the period 9 December 2010 ‑ 23 December 2010; and
(b)Mr Rayney would not have worked between 10.00 am and 4.00 pm (alternatively, at all) on the dates that he was being tried in court for murder.
Mr Rayney's affidavit sworn 17 August 2020
In his affidavit sworn 17 August 2020, Mr Rayney has deposed to the following effect:
1.In the period 8 December 2010 - 23 December 2010, he was in custody and unable to earn legal fees.
2.In the period 11 February 2011 - 17 March 2011, the restrictions on his practising certificate did not preclude him from providing opinions and advice.
3.In the period 18 March 2011 (when he agreed to restrictions on his practising certificate precluding him from conducting jury trials in the District and Supreme Courts of Western Australia) to 23 November 2012 (when he gave a voluntary undertaking to the Legal Practice Board not to practise) he was not precluded from appearing in civil matters in the District and Supreme Courts, or in appearing in other courts or tribunals, or in providing opinions and advice.
4.He could not quantify the time he spent preparing for his own criminal trial - sometimes he spent several hours per day and on other days he did nothing.
5.He accepts that, on the days when his own criminal trial was being heard in court, he could not have appeared for other litigants as a barrister. He would, however, have been able to prepare for future matters outside of sitting hours on those days, and on other days when his criminal trial was not underway.
6.In relation to the time which he had available for accepting work, in the period in which he was 'preparing' for his criminal trial, Mr Rayney said:[28]
I did not have to spend most of my time in preparation because I was not a self‑represented litigant. Indeed, I had engaged a leading criminal silk … a very senior junior counsel … and an experienced solicitor … who I entrusted to do the preparatory work. Also, my solicitor had written to the UWA Blackstone Society and equivalent societies at Notre Dame University and Murdoch University seeking assistance with trial preparation. Consequently, there were approximately 150 to 200 student volunteers who at various times assisted with the preparation for my wilful murder trial.
7.If he had had the work, he would have welcomed it and undertaken it.
8.He believes, based on certain bank statements which he has located and annexed and on the basis of a table prepared by his solicitors, that in the period 25 July 2017 - 17 January 2018, he received net legal fees of $72,592.
Mr Rayney's submissions in support of his application to adduce additional evidence
[28] Mr Rayney's affidavit, par 15; substituted YB 445 - 446.
Mr Rayney submits that the additional evidence he seeks to adduce addresses two matters: first, his actual earnings from 18 July 2017 ‑ 24 January 2018, and second, his earning capacity for the period 9 December 2010 ‑ 22 November 2012.[29]
[29] Mr Rayney's submissions in support of his application to adduce further evidence filed 25 August 2020 (Mr Rayney's further evidence submissions), par 22; substituted YB 489 ‑ 490.
In relation to the first matter, being his actual earnings from 18 July 2017 ‑ 24 January 2018, Mr Rayney contends that the evidence is fresh evidence and 'simply provides a factual evidentiary foundation for any calculation of loss for the period in question, so that the Court of Appeal does not have to rely upon the experts' projections of expected actual income'.[30]
[30] Mr Rayney's further evidence submissions, pars 24 - 25; substituted YB 490 (emphasis added).
In relation to the second matter, being Mr Rayney's earning capacity for the period 9 December 2010 ‑ 22 November 2012, Mr Rayney's primary contention is that there was evidence at trial on this issue and so further evidence is not required. However, in the event that the court accepted the State's submissions that there was no evidence in respect of certain matters relating to the period 9 December 2010 ‑ 22 November 2012, Mr Rayney 'seeks to supplement the evidence at trial so that if necessary, the Court of Appeal is in a position to calculate its own damages award'.[31]
[31] Mr Rayney's further evidence submissions, par 27; substituted YB 491.
Mr Rayney submits:[32]
For the most part, the evidence [Mr Rayney] seeks to adduce is evidence of his actual earnings and expert evidence calculating his loss and damage with reference to those actual earnings, which will be relevant in the event his [a]ppeal is successful and which, if accepted, would avoid the need for a retrial or the Court of Appeal relying upon the experts' projections.
[32] Mr Rayney's further evidence submissions, par 3; substituted YB 484.
In relation to the evidence proposed to be tendered via Mr Rayney's affidavit sworn 17 August 2020, the effect of Mr Rayney's submissions is that, for the most part, Mr Rayney's evidence appears to be uncontentious.[33] In his written submissions, Mr Rayney accepts the judge's finding that he had no capacity to earn income from the practise of law while the trial was in progress 'while noting that the trial was not "in progress" everyday and that an assumption [that Mr Rayney] could not work from 16 July 2012 to 1 November 2012 in fact underestimates [Mr Rayney's] earning capacity'.[34]
[33] Mr Rayney's further evidence submissions, pars 3, 28 - 33; substituted YB 484, 491 - 492.
[34] Mr Rayney's further evidence submissions, par 33; substituted YB 492.
Mr Rayney submits that the evidence that appears to be contentious concerns the period that he spent preparing for the wilful murder trial. He submits that the State's expert at trial was instructed to assume that Mr Rayney's earning capacity for the period 1 January 2012 ‑ 15 July 2012 would be limited to 10% by reason of his preparation for the wilful murder trial. Mr Rayney submits that the judge made no findings in respect of any discount to be applied in that regard, other than that after 18 March 2012, Mr Rayney undertook a small amount of work as a solicitor.[35] Mr Rayney submits:[36]
The evidence that Mr Rayney now seeks to adduce [in that regard] is evidence that could have been elicited had [the State] cross‑examined him on this issue at trial and confirms that the assumptions [the State's] expert was instructed to make were without foundation. [The calculations made by the State's expert] on the basis of that assumption ought not be accepted if the calculation of [Mr Rayney's] loss and damage is revisited on appeal.
[35] Mr Rayney's further evidence submissions, pars 34 - 38; substituted YB 492 - 493.
[36] Mr Rayney's further evidence submissions, par 39; substituted YB 494.
The application for recusal
Overview
The application for recusal is put on the ground of apprehended bias and, more specifically, on the basis of apprehended prejudgment. That contention is, in turn, made on the asserted bases that:[37]
1.In a previous case, I have expressed clear views about a question of fact which constitutes a live and significant issue in the appeal.
2.In a previous case, I have expressed a clear view about the credit of Mr Rayney, whose evidence is of significance on a question of fact which constitutes a live and significant issue in the appeal.
[37] Mr Rayney's written submissions filed 3 September 2020, par 23.
Counsel for Mr Rayney submitted:[38]
Critically, [the State] in their Notice of Contention contends that [Mr Rayney] had not suffered any economic loss after 8 December 2010 and seeks to rely upon, amongst other things, the orders and reasons of the [Tribunal] … made 25 January 2018 and 18 April 2018 [in the Misconduct Decision and the Penalty Decision].
Central to [the State's] argument is the contention that its tortious conduct should not be considered the cause of [Mr Rayney's] economic loss because [Mr Rayney's] own conduct - which had not been at the time 'dealt with' by the relevant authorities - rendered him unfit to practise law [sic].
In this regard, [the State] by its Notice of Contention invites the Court to have regard to policy considerations (not raised at first instance) in respect of whether 'the harm ought fairly be regarded as a consequence of the tortious conduct'.
…
[I]t is inappropriate and would give rise to a reasonable apprehension of bias in a lay observer if a judge hearing this appeal had made serious findings of misconduct against [Mr Rayney]. (emphasis added)
[38] Mr Rayney's written submissions filed 3 September 2020, pars 13 - 15, 17 (emphasis added).
In oral submissions, counsel for Mr Rayney submitted:[39]
In simple terms, your Honours' participation, each of your Honours' participation over the period of time wouldn't effectively pass what in the vernacular would be described as the pub test.
Your Honours having sat in judgment upon Mr Rayney's professional conduct are now asked to consider the implication, the significance of that conduct in a normative, public policy consideration as to whether or not there was an error on the part of the learned trial judge in restricting the extent of economic loss. That, in our respectful submission, gives rise to a lay observer apprehending a potential for bias, a possibility for bias.
In those circumstances, the appropriate test, given that an observer might consider that your Honours might not bring an impartial mind to the hearing of the appeal, the proper course, we respectfully urge upon your Honours, is to recuse yourselves from hearing the appeal[.]
[39] ts 25 - 26.
Whilst not mentioned in Mr Rayney's detailed written submissions on the recusal application, counsel for Mr Rayney in oral submissions also said, albeit without developing an argument about it, that:[40]
In addition, your Honours will know that within the hearing of the appeal, substantively there are applications to adduce further evidence both by [the State] and [Mr Rayney], and we seek to rely upon the affidavit of Mr Rayney, sworn 7 August 2020, which gives retrospective calculation of loss in that regard.
[40] ts 25.
The State neither consented to nor opposed the recusal application. It was given leave to make submissions confined to the relevant principles and whether prior judicial findings relate to 'live and significant' issues in the appeal. The State referred to Smith v Director‑General of Transport[41] and submitted, in effect, that:
1.The trial judge, Chaney J, had not rejected Mr Rayney's claim for damages beyond 9 December 2010 on the basis of credit, and that credit is not an issue in the appeal.[42]
2.Insofar as the State, in Ms Lindley's affidavit, had referred to the Consolidation and Suppression Decision,[43] it only relied on that decision as the source of the State's knowledge that Mr Rayney had filed appeals against the Misconduct Decision and the Penalty Decision, and that the appeals had been consolidated.[44]
3.In relation to the Disciplinary Appeal Decision, the findings referred to by Mr Rayney in his application:
(a)in [62] below are neither live nor significant in the appeal - they are not in issue in the appeal or relied on by the State;
(b)in [67], [71] and [75] below are not live in the appeal - the Tribunal's findings that Mr Rayney had lied on oath about Mrs Rayney having consented to the recordings are not challenged in the appeal, nor could they be; and
(c)in [79] below are neither live nor significant in the appeal - the finding that Mr Rayney made a forensic decision in relation to the non‑tender of medical evidence in the Tribunal is not relied on by the State, and there could be no basis upon which this court could revisit that finding.
[41] Smith v Director‑General of Transport [2004] WASCA 64 [37].
[42] ts 27.
[43] As to which see [44] below.
[44] Respondent's written submissions dated 3 September 2020, par 29.
Insofar as Mr Rayney also relied on his application to adduce additional evidence, the State submitted, in effect, that:[45]
1.If the appeal were successful, the determination of any additional damages for economic loss should, as in the ordinary course, be remitted to a judge of the General Division, in which case the State would contest aspects of Mr Rayney's evidence and the further additional expert evidence sought to be adduced by Mr Rayney. In that regard, it may seek to cross‑examine Mr Rayney, although it could not be said for certain that he would be cross‑examined.
2.However, even if this court were to deal with the determination of damages in the event that Mr Rayney's appeal succeeded, 'credit is not really an issue that will arise'. Rather, the court would be invited to infer that, objectively, in the uncontested circumstances in which Mr Rayney found himself, he would not have been briefed to do the further work for which he claims damages. That would not 'require a submission [to], nor a finding by this court that … evidence be rejected on the basis of credit'.
[45] ts 27 - 28.
Counsel for Mr Rayney made no submissions in reply to the two points referred to in the preceding paragraph.
My participation in earlier appellate matters
I have not sat at first instance on any matter in which Mr Rayney was a party. But I have sat as part of the coram on the following matters in the Court of Appeal in which Mr Rayney was a party:
1.Legal Profession Complaints Committee v Rayney [2017] WASCA 78.
2.Rayney v Legal Profession Complaints Committee [2018] WASCA 75.
3.Rayney v The State of Western Australia [2019] WASCA 23.
4.Rayney v Legal Profession Complaints Committee [2019] WASCA 104.
The first matter referred to in the preceding paragraph was an appeal by the LPCC against the Tribunal's decision to dismiss summarily the disciplinary proceedings against Mr Rayney. As noted earlier, that appeal was allowed, and the matter was remitted to the Tribunal (differently constituted) to determine the disciplinary proceedings on their merits.
The second matter concerned an interlocutory application in Mr Rayney's appeal against the Misconduct Decision and the Penalty Decision. In this interlocutory application, Mr Rayney sought (1) a variation of the Tribunal's suspension orders, (2) an order suppressing publication of the Tribunal's reasons, and (3) consolidation of the appeals against the Misconduct Decision and the Penalty Decision. That interlocutory application was dismissed as to the first two matters, but allowed in respect of the third, ie, consolidation was ordered (Consolidation and Suppression Decision).[46]
[46] Rayney v Legal Profession Complaints Committee [2018] WASCA 75.
The third matter concerned an interlocutory application in this appeal by the State for orders to the effect that the appeal be stayed until the Supreme Court (Full Bench) had determined the matter regarding the Tribunal's report recommending that Mr Rayney's name be removed from the roll of practitioners. The stay application was granted.[47]
[47] Rayney v The State of Western Australia [2019] WASCA 23.
The fourth matter was the substantive appeal by Mr Rayney against the Misconduct Decision and the Penalty Decision. That appeal was dismissed (Disciplinary Appeal Decision).[48]
[48] Rayney v Legal Profession Complaints Committee [2019] WASCA 104.
Mr Rayney did not seek to recuse me from hearing any of those four matters at the time. In this application, Mr Rayney relies on my participation as an appellate judge in the second matter (the Consolidation and Suppression Decision) and in the fourth matter (Disciplinary Appeal Decision) as grounds for recusal.
It is convenient then to turn to those two decisions.
The Consolidation and Suppression Decision and the Disciplinary Appeal Decision
The Consolidation and Suppression Decision
In the Consolidation and Suppression Decision, I agreed with Martin CJ when his Honour said, with respect to Mr Rayney's application to suppress the publication of the Tribunal's reasons in relation to the Misconduct Decision and the Penalty Decision, and to vary the Tribunal's suspension orders:[49]
The jurisdiction of the court and the Tribunal with respect to the regulation of the legal profession is not to be exercised for punitive purposes, rather it is to be exercised for the protection of the public and the maintenance of the reputation and standards of the legal profession. Given that the Tribunal has made findings of this severity, the protection of the public interest and the maintenance of the reputation and standards of the legal profession are significant considerations which count 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 the Tribunal. The orders sought by Mr Rayney would expose the public and the courts to the risks found by the Tribunal and diminish the reputation and standards of the legal profession.
…
Of course, I do not overlook the fact that by these appeals, Mr Rayney challenges the findings of the Tribunal which I have set out. However, the seriousness of those findings is such that the potential risks which might attend a stay of the suspension of Mr Rayney's right to practise and the risk to the maintenance of the reputation and standards of the legal profession which might flow from a continuation of the suppression of the Tribunal's reasons and findings could only be justified if it was readily apparent that the appeal had very strong prospects of success. No submission to that effect has been made on behalf of Mr Rayney. (emphasis added)
[49] Rayney v Legal Profession Complaints Committee [2018] WASCA 75 [17], [19].
Mr Rayney relies on the italicised part of the above passage as grounds for recusal.
The Disciplinary Appeal Decision
In the disciplinary proceedings before the Tribunal, Mr Rayney's case was that (1) he denied that the recordings were made without Mrs Rayney's consent, (2) in any event, he contended that the recordings of Mrs Rayney were made to protect his lawful interests,[50] and (3) subject to certain limited areas of context and detail, his evidence in the Magistrates Court was not false.[51]
[50] A person contravenes s 5(1)(b) of the Surveillance Devices Act if that person uses a listening device to record a private conversation to which that person is a party. It is a defence to a charge of contravening s 5(1)(b) to prove that:
1.Each principal party to the conversation expressly or impliedly consented to the use of the listening device to record the conversation: s 5(3)(c); or
2.The use of the listening device to record the conversation was reasonably necessary for the protection of the lawful interests of a party who consented to the use of the listening device: s 5(3)(d).
[51] Disciplinary Appeal Decision [241] - [242].
As noted earlier, by the Misconduct Decision, the Tribunal found, in effect, that Mr Rayney (1) had made secret recordings of the late Mrs Rayney in knowing contravention of s 5(1) of the Surveillance Devices Act, and (2) had knowingly given false evidence in the Magistrates Court about those matters when he claimed legal professional privilege over the recordings.[52]
[52] Disciplinary Appeal Decision [4].
In his appeal against the Misconduct Decision, Mr Rayney did not dispute the following findings of primary fact by the Tribunal:[53]
1.Mr Rayney had made recordings of conversations with Mrs Rayney prior to her death by using a dictaphone he had purchased.
2.Mrs Rayney had not consented verbally to being recorded.
3.Mrs Rayney had not impliedly consented to being recorded.
4.Mr Rayney's evidence in the Magistrates Court proceedings was false insofar as he said that Mrs Rayney had consented to being recorded.
[53] Disciplinary Appeal Decision [414].
In his appeal against the Misconduct Decision and the Penalty Decision, Mr Rayney's grounds (in general terms) fell into two categories. First, it was alleged that he was denied procedural fairness by the Tribunal in that the Tribunal had failed to allow him to tender evidence of a dictaphone after the evidence (including the expert evidence) had been completed. Mr Rayney's counsel said that the dictaphone he wished to tender was directly relevant to the proper evaluation of the expert evidence and was necessary for the proper and just evaluation of Mr Rayney's evidence.[54] It was this ground, ground 3, which Mr Rayney's counsel contended on appeal would 'unravel' the Misconduct Decision. The second category of grounds alleged, in effect, that the Tribunal had made findings of fact which were glaringly improbable, contrary to compelling inferences or flawed by reference to uncontradicted evidence or otherwise unreasonable. On these bases, Mr Rayney challenged the following findings of fact:
1.The Tribunal's finding that Mr Rayney knowingly gave false evidence to the magistrate with an intention to mislead him (ground 1).
2.The Tribunal's finding that Mrs Rayney had not orally made an insinuation which (on Mr Rayney's case) had precipitated the recordings with Mrs Rayney (ground 2).
3.The Tribunal's finding that the dictaphone used by Mr Rayney to make the recordings was not visible to Mrs Rayney (ground 4.)
4.The Tribunal's finding that the recordings were not reasonably necessary for the protection of Mr Rayney's lawful interests (ground 5).
[54] Disciplinary Appeal Decision [415].
Mr Rayney's counsel also applied in that appeal to adduce additional medical expert evidence concerning Mr Rayney with a view to showing that he suffered from post‑traumatic stress disorder, and that this condition may have affected his recollections when giving evidence about the recordings, thereby potentially undermining the Tribunal's finding that Mr Rayney had knowingly given false evidence in the Magistrates Court.[55] Mr Rayney had not sought to adduce such medical evidence at the hearing of the disciplinary proceedings prior to the Misconduct Decision.
The procedural fairness ground
[55] Disciplinary Appeal Decision [650].
The procedural fairness ground (ground 3) arose in the following context:
1.Mr Rayney's evidence before the magistrate was to the effect that (1) he had made the recordings of his wife prior to her death in 2007 on a handheld dictaphone, (2) he had arranged for a copy of the recordings to be put onto a compact disc, (3) he had retained the compact disc and (4) he had disposed of the dictaphone on which he had made the recordings in 2007 by throwing it into a bin.[56]
[56] Disciplinary Appeal Decision [191.25], [199.5], [202], [208], [227], [229], [233], [291], [317], [321] ‑ [324].
2.As the dictaphone used to make the recordings had been disposed of in 2007, the extant evidence of the recordings was the compact disc created by Mr Rayney, over which he had claimed legal professional privilege in the Magistrates Court.
3.In the disciplinary proceedings, Mr Rayney and the LPCC each called 'audio' expert evidence as to the nature and content of the recordings and the sounds and noises heard on the compact disc.
4.The experts prepared a joint expert statement. They agreed that the noises on the compact disc included the voices of a male and a female, and agreed, in effect, that:[57]
[57] Disciplinary Appeal Decision [267].
(a)the recordings were made by the male using a dictaphone on or about his person (for the most part);
(b)the dictaphone was likely to have been covered by fabric, such as in a pocket;
(c)there was no evidence to indicate that the female was aware of the recordings; and
(d)when the dictaphone was carried on the body of the male in the presence of the female, it did not need to be, and was unlikely to have been, visible for producing the recordings.
5.When the expert witnesses gave evidence, there was no suggestion by either party that their evidence was unreliable because they had only examined the recordings on the compact disc, and had not examined the actual digital recorder, or a digital recorder of the same make and model as was used to make the recordings.[58]
6.Both experts agreed, in effect, that a dictaphone lying on the kitchen table recording the conversations would not have produced the extraneous sounds heard on the recordings on the compact disc.[59]
7.After the completion of the evidence before the Tribunal (including the expert evidence) and after the parties had in effect closed their cases, Mr Rayney's counsel sought to tender a 'JNC 350' dictaphone that he said his firm had recently purchased on 'Gumtree' and had received the preceding day. Counsel for Mr Rayney said that the dictaphone he sought to tender was a 'creamy colour' and referred to Mr Rayney's evidence that he had used a dictaphone of a 'creamy‑whitey' colour to record Mrs Rayney.[60] Counsel gave a demonstration of the dictaphone from the bar table, including putting it on a cushion and moving the cushion which he said demonstrated noises similar to those heard on the compact disc - the point evidently being that the recordings heard on the compact disc could have been made with the dictaphone placed on a cushion, rather than being secreted in a pocket as raised by the joint expert evidence. Counsel for Mr Rayney submitted that, had the experts been given this 'JNC 350' dictaphone, their evidence would have been significantly affected.[61] He did not apply for an adjournment to allow the experts to examine the dictaphone. The tender was opposed by the LPCC.
8.The Tribunal rejected the tender and said:[62]
The tribunal has considered the application by Mr Rayney through [his counsel] to reopen and tender the dictaphone that he had produced today and for it to be accepted by the tribunal and inspected pursuant to s 72 of the [SAT Act] and has decided to dismiss that application. The reasons are while the tribunal may, under s 72 of the [SAT Act] inspect any document or other material, in this case, the tribunal does not feel it is qualified to make any conclusions about an inspection of a dictaphone. A test was run by [counsel for Mr Rayney] - or two tests were run by … in the course of his submissions. The tribunal members have had discussed it while we were considering this issue.
To our untrained ears, the sounds produced seems to us to be completely different to the sounds on the recordings that are in evidence, but we express no view as to that, one way or the other, simply because of the main point that … the tribunal is making on this issue, that the tribunal is not qualified to draw any conclusions from an inspection and testing of a dictaphone and … will not do so. As far as accepting it into evidence is concerned, it's necessary to look at the chronology. This matter has been listed for some time. It was originally listed for three days last week.
As the result of two case management hearings … two further days were located [sic - allocated]. That hasn't been easy. It's not a simple matter for this tribunal to reconstitute to hear further evidence. And in that context, the tribunal takes the view that it would be procedurally unfair and could result in incorrect conclusions being drawn if the dictaphone were accepted without the issues that are raised by [counsel for Mr Rayney] being put to those witnesses who have given expert evidence, Mr Garde and Dr Murray. And the tribunal takes the view that there has been no adequate explanation for the delay.
… there have been two case management hearings [which] … took place this year. The report of … Mr Garde … is dated 19 October 2017. … the tribunal has been told that the dictaphone was located on 11 December [2017], but the tribunal is not told when it was first looked for. And in view of the lateness of the application, in view of the unexplained delay, in view of the unfairness of accepting the evidence without it having been put to the two experts, the tribunal takes the view that the application should be dismissed. (emphasis added)
[58] Disciplinary Appeal Decision [283].
[59] Disciplinary Appeal Decision [282].
[60] Disciplinary Appeal Decision [424].
[61] Disciplinary Appeal Decision [425] - [426].
[62] Disciplinary Appeal Decision [435].
In relation to this ground (ground 3) in the appeal in the Disciplinary Appeal Decision, counsel for Mr Rayney submitted (amongst other things) that the Tribunal's failure to accept the tender of the dictaphone and the evidence of its operation from the bar table, meant that Mr Rayney had had an unfair trial and that the Tribunal's decision imposed 'an unfair restriction on Mr Rayney's right to present his case'.[63] He also contended that insofar as the Tribunal had a discretion as to whether to allow a reopening and tender of the dictaphone, the Tribunal's decision was 'unreasonable or plainly unjust' and that a 'substantial wrong had occurred'.[64]
[63] Disciplinary Appeal Decision [444].
[64] Disciplinary Appeal Decision [448], with reference to House v The King [1936] HCA 40; (1936) 55 CLR 499.
In dealing with ground 3, the court referred to and accepted Mr Rayney's evidence as to the dictaphone that he had used in the recordings,[65] including evidence to the effect that:[66]
[65] Disciplinary Appeal Decision [455].
[66] Disciplinary Appeal Decision [455.4] ‑ [455.6].
4.(a) he had disposed of the dictaphone around 6 or 7 August 2007;
(b)he did not now recall the colour of the dictaphone, but if he had said in 2009 that it was a creamy white colour, then he accepted that;
(c)he did not know what type of recorder he had used in the recordings of Mrs Rayney; and
(d)he could not remember whether he had purchased the dictaphone from Dick Smith or some other similar electronics store such as Dick Smith, although he thought it was probably a Dick Smith store.
5.Also, whilst the dictaphone purchased on 6 June 2007 was a JNC 350 dictaphone, Mr Rayney's evidence was that he had not used that dictaphone to record Mrs Rayney, as that was a 'travel' work related dictaphone.
6.Mr Rayney did not say that the dictaphone he had purchased on 6 June 2007 was, or was likely to have been, the same type as that which he had purchased a few months earlier for recording Mrs Rayney.
The court also referred to the forensic context in which the parties' expert evidence was led:[67]
Prior to effectively closing his case on 7 December 2017, Mr Rayney had also called and relied on expert evidence from [Mr Rayney's expert]. In that regard:
1.Mr Rayney, through his solicitors, did not expressly ask [Mr Rayney's expert] to consider whether [the LPCC's expert's report] was unreliable because he had not inspected the actual dictaphone used to record Mrs Rayney, or a dictaphone of the same make and model.
2.Mr Rayney's solicitors did, however, ask [Mr Rayney's expert] to consider the assumptions, including the completeness of those assumptions, underlying [the LPCC's expert's] report and it was evident that [the LPCC's expert] had been asked to assume that the make and model of the dictaphone used to record Mrs Rayney was not known.
3.[Mr Rayney's expert] did not suggest that [the LPCC's expert's] report or evidence was unreliable because he had only examined the recordings on the Compact Disc, but had not examined the actual dictaphone, or a dictaphone of the same make and model, used to make the recordings.
4.It was not put to [the LPCC's expert] in cross examination by Mr Rayney's counsel, or indeed raised with [Mr Rayney's expert] in chief, that [the LPCC's expert's] report, or the Experts' Joint Statement, were not reliable because the experts had not examined either the dictaphone actually used to make the recordings, or one of the same make and model.
5.[Mr Rayney's expert] had expressly said that he had made all desirable and appropriate inquiries and that no matters of significance that he regarded as relevant had been withheld from the Tribunal.
[67] Disciplinary Appeal Decision [456].
In assessing the merits of ground 3, the court said:[68]
[68] Disciplinary Appeal Decision [450] ‑ [451].
In the disposition of proceedings, the Tribunal should have regard to the obligation to afford procedural fairness and the statutory objectives in s 9 of the SAT Act to:
1.make decisions fairly and according to the substantial merits of the case;
2.act as speedily as is practicable, and with as little formality and technicality as is practicable; and
3.act so as to minimise the costs to the parties.
In light of those objectives, in dealing with an application to reopen, the Tribunal would not treat the party's earlier closure of its case with the same formality which attends that step in a curial trial. Nor is the Tribunal bound, simply or exclusively, to apply the principles relevant to an application to reopen in curial proceedings. Nevertheless, the considerations which guide the exercise of discretion to grant an application to reopen in curial proceedings, insofar as they may bear upon the attainment of the objectives referred to above, are matters of which account might properly be taken by the Tribunal in determining an application to reopen in proceedings before the Tribunal. Each case will depend upon its own circumstances, to be determined in light of the statutory objectives referred to in [450] above. The (non‑exhaustive) factors which might properly be taken into account include:
1.The nature of the proceedings - in this case disciplinary proceedings brought against a legal practitioner. The practitioner, in a disciplinary context, is entitled to know the case which they have to meet, so that they may have an adequate opportunity to determine what questions they may wish to ask in cross‑examination, what evidence, if any, they may wish to call, and what objections, if any, they may wish to raise in response to the case against them.
2.Whether the occasion for calling further evidence ought reasonably to have been foreseen.
3.The extent to which the party seeking to reopen to adduce the additional evidence has embarked upon calling evidence on the issue in question in their case in‑chief, before closing.
4.The importance of the issue on which the further evidence is sought to be adduced to the issues in the case.
5.The degree of relevance and probative value of the further evidence sought to be adduced.
6.The prejudice or embarrassment to the other party, including any additional costs and delay that would be occasioned by the reopening.
7.The public interest in the timely conclusion of the proceedings.
8.What explanation is offered by the party seeking to adduce the additional evidence for not having called the evidence‑in‑chief before closing their case.
9.Particularly where the failure to adduce the additional evidence was the result of a deliberate decision made for tactical reasons, there would usually be a disinclination to grant the application to reopen. On the other hand, where the evidence has not been called because counsel made an inadvertent error or mistakenly apprehended the facts and/or law, the justice of the case may well point to the grant of the application.
The court rejected Mr Rayney's arguments to the effect that he was denied a fair trial or that the Tribunal's decision was unreasonable or plainly unjust. In addressing the particular matters enumerated as points 1 ‑ 9 in the preceding paragraph, the court said:[69]
[69] Disciplinary Appeal Decision [480].
1.The fact that the proceedings were disciplinary proceedings is of significance. The objectives referred to in [450] above were to be considered in that context. Having said that, in the particular circumstances here, there was no doubt that Mr Rayney was at all material times aware of the case that he had to meet.
2.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 dictaphone that he had used. He also knew that [the LPCC's expert's] evidence, and his own expert evidence, proceeded on the basis that the type and make of dictaphone was unknown. Any potential contest over the unreliability of the expert evidence in the absence of the actual dictaphone or one of the same make and model ought reasonably to have been contemplated, and prepared for, or at least flagged as an issue, prior to the close of evidence on 7 December 2017.
3.Mr Rayney obtained and tendered his own expert evidence on the basis that the recordings on the Compact Disc had been made using a Cenix dictaphone with an omni directional microphone and a frequency of 500 Hz to 1,000 Hz, and that the particular make and model would not materially affect the conclusions drawn from the evidence tendered. The effect of the application on 13 December 2017 was to seek to resile from that position.
4.The proposed additional evidence, if of probative value, was important insofar as it was capable of bearing upon Mr Rayney's evidence that the dictaphone was always visible to Mrs Rayney when he was recording their conversations.
5.However, the proposed additional evidence had no real probative value for the reasons given in [458] above.
6.The point of the tender had only been disclosed to the LPCC on the morning of 13 December 2017. The LPCC would not have been in a position to deal with the tender on its merits without an adjournment, occasioning additional delay and costs.
7.There was a public interest in having the proceedings completed. Both parties had conducted their respective cases on a particular basis (that no issue arose from the fact that the dictaphone used to record Mrs Rayney was not available, and that the particular make and model was unknown), all the evidence was otherwise in, the day had been set aside for closing submissions, and the proceedings had been on foot for over two years.
8.The explanation offered by Mr Rayney's counsel for not adducing the evidence earlier lacked cogency and involved assertions of fact for which there was no evidentiary support.
9.It had not been shown that the failure to adduce the JNC 350 dictaphone was because counsel for Mr Rayney had made an inadvertent error, or mistakenly apprehended the facts or the law. There was no apparent error of law involved in the decision not to tender a dictaphone such as the JNC 350 dictaphone earlier.
10.Even if it could be assumed, without evidence (which it could not) that Mr Rayney's solicitors had mistakenly assumed that a dictaphone such as the JNC 350 dictaphone was unavailable prior to 11 December 2017, it could not be inferred that such an erroneous belief caused Mr Rayney's solicitors not to make any enquiries in that regard. That is because (1) absent expert evidence, there was no sound basis for thinking that the identity of the particular dictaphone used to record Mrs Rayney would be relevant, and (2) on Mr Rayney's own evidence and his expert evidence, the absence of such a dictaphone was not relevant.
11.Nor does the submission that Mr Rayney was not at fault in the late tender of the dictaphone assist him. He was represented by experienced trial counsel, and was an experienced prosecutor himself. A consideration of the substantial merits of the case did not require, in these circumstances, the Tribunal to permit Mr Rayney to depart from the way that he had run his case before the Tribunal. (emphasis added)
Mr Rayney relies on the italicised part of point 2 in the preceding paragraph as grounds for recusal.
The grounds alleging that the Tribunal's findings of fact were not open on the evidence
Ground 1 - the Tribunal's finding that Mr Rayney's evidence was knowingly false
Ground 1 alleged, in effect, that it was not open to the Tribunal on the evidence to conclude that Mr Rayney had given the (admittedly) false evidence[70] knowingly and with an intention to mislead the Magistrates Court.
[70] See [53.4] above.
The Tribunal's findings in this respect were summarised at [586] of the Disciplinary Appeal Decision. The Tribunal in the Misconduct Decision said:[71]
Mr Rayney does not suggest that he was mistaken in deposing as to those matters, save as to the details of how and when the insinuation was first made and when the recordings were made.
The Tribunal has considered the impact upon Mr Rayney of the traumatic and distressing events that he had endured prior to the making of the affidavit and the stresses that he was under at the time he made it. The Tribunal has also considered the significance of a finding that a practitioner of Mr Rayney's experience and standing knowingly gave false evidence. The Tribunal has borne in mind the unlikelihood of a practitioner of Mr Rayney's standing and experience knowingly giving false evidence in the affidavit.
The Tribunal has also considered the evidence Mr Rayney gave to the Tribunal on these matters in the hearing before it. If Mr Rayney's evidence on these matters in the affidavit was given knowing that the evidence was false then Mr Rayney's evidence to this Tribunal on these matters was given knowing that it was false. The Tribunal has borne in mind the unlikelihood of a practitioner of Mr Rayney's standing and experience knowingly giving false evidence to it.
However, taking into consideration all of those matters, the Tribunal is satisfied that these matters are not matters about which Mr Rayney could have been mistaken when he made the affidavit.
The insinuation made in the email of 13 July 2007 was as to a very serious matter. Mr Rayney could not have mistakenly believed that he made the recordings to create a record of the falsity of an insinuation to the same effect, whether made orally or in writing. He must have known his own reasons for making the recording. Nor could Mr Rayney have been mistaken as to obtaining Mrs Rayney's consent to the making of the recordings or the placement of the dictaphone for the in person conversations.
The Tribunal is satisfied that Mr Rayney knew that those statements were false. The Tribunal finds that in his affidavit of 2 February 2009 Mr Rayney knowingly gave false evidence as to those matters.
[71] Disciplinary Appeal Decision [586].
Mr Rayney submitted in the appeal, in effect, that the Tribunal had made findings which it was not medically qualified to make.[72]
[72] Disciplinary Appeal Decision [543], [547].
Having considered the evidence and the parties' submissions in relation to it, the court said:[73]
The Tribunal did not make a finding which it was not medically qualified to make. There was no medical evidence to the effect that, and it was not suggested to the Tribunal by counsel for Mr Rayney that, Mr Rayney's evidence in the Magistrates Court was, or may have been, untrue or inaccurate on the key issues of consent and the reason for making the recordings because he was suffering from PTSD or another disorder at the time. Nor was Mr Rayney's evidence to that effect. Mr Rayney's case before the Tribunal (prior to the Misconduct [D]ecision being handed down) was, in effect, that whilst certain contextual errors had been made when giving evidence before the magistrate, the evidence in point of substance was true in relation to the question of consent and the underlying reason for making the recordings in the first place.
The inference that Mr Rayney knew that his evidence in the Magistrates Court was false in the material respects found by the Tribunal was open to the Tribunal. Absent an admission by direct evidence, a finding as to a person's state of mind will be a matter of inference. If Mr Rayney's false evidence to the magistrate was merely the product of innocent mistake, the mistake would have had to relate to two fundamental matters (1) the insinuation which (Mr Rayney said) provided both the occasion and the impetus for the making of the recordings in the first place, and (2) Mrs Rayney's consent to being recorded. The Tribunal considered whether Mr Rayney's (admittedly for this purpose) false evidence to the magistrate about the reason why he made the recordings and Mrs Rayney's consent to the recordings could have been merely mistaken.
The Tribunal's reasons referred to in [586] above are logical and provide a reasonable and proper basis for the inference that Mr Rayney was not merely mistaken, and that 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. The recordings made prior to 17 April 2017 were stored on the Compact Disc and the dictaphone itself disposed of around the date of Mrs Rayney's disappearance. Other arrangements were made (with Mr Pearson) to get a better quality of recording of their telephone conversations. Neither Dr Bowden's evidence on its own, nor read in the context of the other evidence of Mr Rayney, Caitlyn and Sarah (referred to in [548] - [549] above), provides any proper basis upon which this court could conclude that the inference drawn by the Tribunal was wrong on the facts established by the evidence. The Tribunal was required to, and did, evaluate the evidence as a whole, including the evidence of Dr Bowden and evidence of matters of the kind referred to by Caitlyn and Sarah. Appellable error is not established. (emphasis added)
[73] Disciplinary Appeal Decision [591] - [593].
Mr Rayney relies on the italicised part of that passage as grounds for recusal.
Ground 2 - the Tribunal's finding as to the alleged oral insinuation
Ground 2 alleged, in effect, that it was not open to the Tribunal to find that Mrs Rayney had not made an oral insinuation as contended by Mr Rayney. In this regard, the Tribunal had made findings to the effect that, had an oral insinuation been made, it is not something that Mr Rayney would have overlooked at the time of giving evidence to support his claim for privilege. Nor, said the Tribunal, was it something that he needed to have preserved in order to protect any defences he had available in relation to other criminal proceedings in which he was involved[74] concerning telephone interceptions.[75]
[74] Misconduct Decision [271] - [273].
[75] He was not convicted of those charges.
Ground 2 was summarised by the court at [599] of the Disciplinary Appeal Decision:[76]
Ground 2 alleges that the Tribunal erred in fact in finding, at [270] and [272] of the Misconduct [D]ecision, that the insinuation was not made orally by Mrs Rayney on the bases that (1) had the oral insinuation been made, Mr Rayney would have given evidence about it in the Magistrates Court in 2009, (2) it was not something that needed to be preserved to protect his defences, and (3) it was not something which he was likely to have overlooked. The Tribunal's findings, it is alleged, (1) failed to take proper account of the uncontested medical evidence of Dr Bowden, (2) were flawed in that they are glaringly improbable or contrary to compelling inferences, and (3) were flawed by reference to uncontradicted factual and medical evidence in that the Tribunal determined 'the likely effect of [Mr Rayney's] medical condition and circumstances on his memory or ability to recall traumatic events' when the Tribunal was not medically qualified to make such findings and the findings are contrary to the medical evidence.
[76] Disciplinary Appeal Decision [599].
Having considered the parties' submissions, the court said:[77]
[77] Disciplinary Appeal Decision [610] ‑ [612].
Ground 2 challenges the Tribunal's finding that the insinuation had not been made orally. The Tribunal's finding and the reasons in support of it are referred to in [390] - [392] above. The Tribunal's finding, contrary to Mr Rayney's evidence, that Mrs Rayney had not made the insinuation orally was, to a significant extent, based on its assessment of Mr Rayney's credibility.
Generally, credibility‑based findings of fact will not be reversed on appeal unless it is demonstrated that (1) those findings are flawed by reference to incontrovertible facts or uncontested testimony; or (2) the findings are glaringly improbable or contrary to compelling inferences; or (3) the Tribunal has failed to use, or has palpably misused, its advantage as the trier of fact.
As to the particular points relied on by Mr Rayney:
1.Insofar as the ground relies on contentions to the effect that the Tribunal failed to have proper regard to Dr Bowden's evidence, it fails for the reasons given in relation to ground 1.
2.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.
3.The Tribunal did not fail to consider whether Mr Rayney had merely 'overlooked' the oral insinuation when he gave evidence in his affidavit of 2 February 2009. Having regard to all the evidence, it positively concluded that Mr Rayney had omitted to mention any oral insinuation because none had been made.
4.Mr Rayney's submissions referred to in [604] - [605] above do not establish error. They tend to confirm the Tribunal's findings that Mr Rayney's account of events was implausible.
5.It was open to the Tribunal to infer that had an oral insinuation been made as alleged by Mr Rayney, he would have raised it with Mr Carr. The suggestion that it would have been open to infer that Mr Rayney did not raise it with Mr Carr for 'other reasons' is speculative absent any reference to evidence of Mr Rayney which might support the submission that there were 'other reasons'. (emphasis added)
Mr Rayney relies on the italicised parts of points 2 and 3 of the preceding paragraph as grounds for recusal.
Ground 4 - the Tribunal's finding that the dictaphone was not visible
Ground 4 of Mr Rayney's appeal against the Misconduct Decision and the Penalty Decision alleged that the Tribunal erred in fact in finding that the dictaphone was not visible to Mrs Rayney when Mr Rayney made the recordings. Mr Rayney alleged that the Tribunal's findings in this regard were glaringly improbable, or contrary to compelling inferences, or flawed by reference to uncontested testimony.[78]
[78] Disciplinary Appeal Decision [614].
The court observed that ground 4 went nowhere absent a challenge to the findings to the effect that Mrs Rayney did not consent expressly or impliedly to the recordings, and that ground 4 should be dismissed on that basis alone.[79]
[79] Disciplinary Appeal Decision [625].
Having considered the parties' arguments, the court also went onto say:[80]
[80] Disciplinary Appeal Decision [626] - [627].
[T]he submissions based on [Mr Rayney's expert's] oral evidence as to various 'possibilities' accounting for the extraneous sounds heard on the recordings made by Mr Rayney are misplaced. The Tribunal heard all the expert evidence, and was entitled to prefer [the LPCC's expert's] evidence in the respects that it did. Moreover, the Tribunal accepted [Mr Rayney's expert's] unretracted evidence in the Experts' Joint Statement that:
'•the extraneous sounds on the in person recordings include dictaphone handling noise and the noise of material/clothing moving in contact with the dictaphone;
•the recordings were produced by the male using the dictaphone on or about his person, except for a period in Audio Recording No 1 when he left the dictaphone for approximately one minute;
•when the male carried the dictaphone in the presence of the female it is likely that the dictaphone was covered with fabric;
•when the dictaphone was carried on the body of the male in the presence of the female it did not need to be, and was unlikely to be, visible for producing the recordings; and
•if the dictaphone were placed on a kitchen bench there would be little if any extraneous sounds of the kind that were heard on the recordings.'
Thirdly, Mr Rayney's submissions (including with respect to matters in the Schedule) that the Tribunal's finding was unreasonable, illogical or based on findings of fact unsupported by logical grounds, cannot be accepted in light of the matters referred to in the two preceding paragraphs and when regard is had, in particular, to the following matters:
1.There has been no error demonstrated in the Tribunal's findings referred to in [382] - [383] and [583] above, including as to the implausibility of Mr Rayney's evidence. Similarly, it was open to the Tribunal to find (see [385.2] above) that 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. It is difficult to conceive what additional formality could attach to their communications beyond (1) warning her that he would be recording their communications in the context of a marital dispute where they were both lawyers, (2) obtaining her consent to that course, and (3) then producing a dictaphone in full view so as to make it known that he was recording her from time to time. Also, on his evidence, the dictaphone always had to be at the ready, in the event that he formed the view that a conversation might veer into a discussion of the insinuation.
2.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, he 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. That conduct was more broadly consistent with a lack of transparency in his approach to recording conversations with Mrs Rayney in 2007.
3.It is 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 referred to in [49] - [120] above. (emphasis added)
Mr Rayney relies on the italicised passages in the preceding paragraph as grounds for recusal.
Mr Rayney's application to adduce additional medical evidence
In the appeal against the Misconduct Decision, Mr Rayney applied to adduce additional medical evidence in the appeal. The medical evidence comprised a report by a consultant specialist adult psychiatrist, Dr Chapman, dated 21 March 2018, and a report by a consultant neuropsychologist, Professor Foster, dated 18 March 2018. The court observed that each of these medical reports had been tendered by counsel for Mr Rayney at the penalty hearing, but had not been tendered in relation to the substantive hearing as to whether Mr Rayney had engaged in allegedly professional misconduct by, amongst other things, giving false evidence in the Magistrates Court.[81]
[81] Disciplinary Appeal Decision [649].
Mr Rayney's submissions on this topic were referred to by the court in the Disciplinary Appeal Decision. Mr Rayney submitted as follows:[82]
[82] Disciplinary Appeal Decision [654] - [655].
88.In circumstances where [Mr Rayney's] evidence as to his psychiatric state was unchallenged by the [LPCC] and accepted by the Tribunal, it had been unnecessary to obtain these reports for the purposes of the Final Hearing.
89.Accordingly, both [Dr Chapman's and Professor Foster's reports] (for the purpose of the Final Hearing) are fresh evidence.
…
108.In circumstances where [Mr Rayney] had been diagnosed with PSTD [sic - PTSD] of chronic duration which is recognised to result in memory impairment, which was confirmed by [Mr Rayney's] evidence and the evidence of his daughters, there is a significant possibility that [had] [Dr Chapman's and Professor Foster's] Reports been in existence and accepted at the Final Hearing, it would have lead [sic - led] the Tribunal to accept [Mr Rayney's] explanation as to Mrs Rayney having made the oral insinuation and the timing thereof.
109.It is of note that the Tribunal found at [269] of [the Misconduct [D]ecision] that it could accept that [Mr Rayney] could have been mistaken as [to] when the oral insinuation was made.
110.[Dr Chapman's and Professor Foster's] Reports provide a legitimate and uncontroverted explanation as to:
110.1the timing of when [Mr Rayney] gave evidence about the oral insinuation, that is, in a statutory declaration for the Legal Practice Board dated 29 September 2015; and
110.2what is said by the Tribunal to have been inconsistent descriptions of the oral insinuation in evidence.
…
111.In circumstances where grounds 2 and 3 of the LPCC's case against [Mr Rayney] alleged, amongst other things, either knowingly giving false evidence or being recklessly indifferent thereto, the proposed evidence goes relevantly to whether the LPCC have failed to make out their case on the balance of probabilities.
…
113.Further, had [Dr Chapman's and Professor Foster's] Reports been available and accepted at the Final Hearing, there is a significant possibility that the Tribunal would have made findings consistent with the evidence of [Mr Rayney] with respect to the existence and timing of the oral insinuation.
Although Mr Rayney's submissions referred to above are elliptical, the purport of them appears to be that:
1.Dr Chapman diagnosed Mr Rayney with PTSD, and as part of that disorder, Mr Rayney reported experiencing dissociative states, ie, flashbacks.
2.Professor Foster's report indicates that Mr Rayney presented in a truthful manner.
3.Dr Chapman's report arguably provides evidence of a retrospective diagnosis of PTSD.
4.PTSD can affect declarative memory and cognitive performance.
5.When Mr Rayney gave evidence in the Magistrates Court about the oral insinuation and Mrs Rayney's consent, it may be inferred that his memory of those matters was, or was possibly, affected by PTSD and unreliable.
6.Accordingly, the evidence, although false, was, or was possibly, the product of Mr Rayney's honest, but mistaken, recollection.
The court said:[83]
Mr Rayney did not contend that the opinions expressed in Dr Chapman's and Professor Foster's reports could not have been obtained for the trial of the issues of contravention, by the exercise of reasonable diligence. Nor is there any reason to suppose that they could not have been. They are not fresh evidence.
Nor is there any affidavit explaining why the opinions expressed in those reports were not tendered at the Disciplinary hearing prior to the delivery of the Misconduct decision. There is no evidence to support the implication sought to be conveyed by par 88 of Mr Rayney's submissions in [654] above, to the effect that a forensic decision had been made that it was merely thought to be 'unnecessary' to obtain these reports prior to the determination of the hearing into the misconduct allegations. In the circumstances, the inference is that a deliberate forensic decision was made not to tender opinion evidence to that effect, consistently 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 an insinuation, and that Mrs Rayney had consented to the recordings.
It would also be contrary to the interests of justice to allow this additional evidence to be adduced in the appeal insofar as its purpose was to allow Mr Rayney to argue that his false evidence was the result of a faulty recollection caused by PTSD. That was not a point advanced by Mr Rayney before the Tribunal, and had it been run before the Tribunal, it might have been met with additional evidence. Nor can it be said that the LPCC would suffer no prejudice if the new point was taken. Accordingly, it cannot be raised in the appeal. (emphasis added)
[83] Disciplinary Appeal Decision [656] - [658].
The italicised passage in the preceding paragraph was relied on by Mr Rayney as grounds for recusal.
The principles for recusal
In Ebner v Official Trustee in Bankruptcy,[84] Gleeson CJ, McHugh, Gummow and Hayne JJ said:[85]
Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
[84] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337.
[85] Ebner [19].
In Livesey v The New South Wales Bar Association,[86] the High Court said:[87]
If a judge at first instance considers that there is any real possibility that his participation in a case might lead to a reasonable apprehension of pre‑judgment or bias, he should, of course, refrain from sitting. On the other hand, it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre‑judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court.
[86] Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288.
[87] Livesey (294).
In Ebner, their Honours also said:[88]
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge …, the governing principle is that, subject to qualifications relating to waiver … or necessity …, a judge is disqualified if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.
[88] Ebner [6].
There must be an articulation of the logical connection between (1) the matter identified as the basis upon which it is said that the judge might decide the case other than on its merits, and (2) the feared deviation from the course of deciding the case on its merits.[89]
[89] Ebner [8].
In Livesey, the High Court also said, most relevantly for present purposes:[90]
It is … apparent that … 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.
[90] Livesey (300).
In Johnson v Johnson,[91] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said:[92]
The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial'.
Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. (emphasis added)
[91] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488.
[92] Johnson [12] - [13].
In Re Polites; Ex parte Hoyts Corporation Pty Ltd,[93] Brennan, Gaudron and McHugh JJ said (albeit with particular reference to the decision in Livesey):
In applying this test, it is necessary to bear in mind the caution expressed by Mason J in Re JRL; Ex parte CJL:
'It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.'
(emphasis added)
[93] Re Polites; Ex parte Hoyts Corporation Pty Ltd) [1991] HCA 25; (1991) 173 CLR 78, 86; see also Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56; (1999) 166 ALR 302 [11]; R v Masters (1992) 26 NSWLR 450, 471.
Disposition
It is convenient to return, at this point, to the bases upon which Mr Rayney seeks my recusal:
1.In a previous case, I have expressed clear views about a question of fact which constitutes a live and significant issue in the appeal.
2.In a previous case, I have expressed a clear view about the credit for Mr Rayney, whose evidence is of significance on a question of fact which constitutes a live and significant issue in the appeal.
In my view, no proper basis for my recusal has been shown in relation to the issues raised by the grounds of appeal and the notice of contention. That is so for the following related reasons:
1.The principal and overarching 'question the judge is required to decide'[94] in this appeal is whether Chaney J erred in finding that causation had not been established in respect of the period after 8 December 2010. The grounds of appeal in substance raise (1) alleged errors of law arising from alleged failures to give reasons or adequate reasons, and (2) an alleged error of fact in Chaney J's conclusion that the 20 September 2007 defamatory statement did not continue to be a cause of Mr Rayney's economic loss after 8 December 2010. These are not questions that I have ever had to consider before. Contrary to Mr Rayney's submissions, I have not, in a previous case, expressed clear views about a question of fact which constitutes a live and significant issue on the appeal. Nor have I expressed a clear (or indeed, any) view on Mr Rayney's credit on such a question (or on any other question).
[94] Ebner [6].
2.The State's notice of contention concerning the findings and orders made by the Tribunal with respect to Mr Rayney's conduct when he was a barrister is advanced on the basis that it provides further support for upholding the judge's finding, based on normative considerations, that causation had not been established after 8 December 2010. Again, that is not a question which I have ever had to consider before. If the State's application to adduce additional evidence succeeds, that evidence will be received for whatever it is worth on that question. There is nothing to suggest that I have expressed clear views about a question of fact which constitutes a live and significant issue arising from the notice of contention, or that I have expressed a clear (or indeed, any) view on Mr Rayney's credit on such a question (or on any other question).
3.The question raised by the notice of contention involves a consideration of the policy of the law. I am not persuaded that a fair‑minded lay observer might reasonably apprehend that, in discharging my role as an appellate judge in these circumstances, I might not bring an impartial mind to the resolution of an issue of law involving legal policy.
4.An appellate judge in this appeal is not being asked to decide whether Mr Rayney misconducted himself when he was a barrister. Those findings were made by the Tribunal (to which that particular statutory task was committed),[95] the appeal against them was dismissed, and Mr Rayney's name has since been struck off the roll of practitioners on the basis of those findings without his opposition.
5.I do not regard it as accurate to contend, as submitted by counsel for Mr Rayney, that I have (1) 'sat in judgment upon Mr Rayney's professional conduct', and (2) 'made serious findings of misconduct' against Mr Rayney. An appeal is concerned with the correction of error.[96] In the Disciplinary Appeal Decision, I 'sat in judgment' (adopting that expression) on the Tribunal which made findings concerning his conduct. In the Consolidation and Suppression Decision, I sat on an interlocutory application for certain procedural orders sought by Mr Rayney.
6.The Consolidation and Suppression Decision involved weighing the Tribunal's findings[97] against the nature of the dispensatory interlocutory relief claimed by Mr Rayney in a context in which Mr Rayney did not contend, on the application, that his appeal had very strong prospects of success.[98]
7.My participation in the Consolidation and Suppression Decision did not result in a recusal application in relation to the substantive appeal, ie, the appeal leading to the Disciplinary Appeal Decision.
8.In the Disciplinary Appeal Decision, the particular passages referred to by Mr Rayney in [62], [67], [71] and [75] above relate to questions as to whether the Tribunal's findings were open to it. The court resolved those questions having regard to the evidence before the Tribunal, including the evidence of Mr Rayney, on relevant topics. The court did not make findings of primary fact as to whether Mr Rayney had engaged in professional misconduct as found in the Misconduct Decision and the Penalty Decision, or at all. The passage referred to in [79] above refers to the drawing of an inference, from the circumstances before the Tribunal, that a deliberate forensic decision had been made not to adduce the medical evidence in the substantive hearing relevant to the Misconduct Decision. Again, the court was not making findings of primary fact as to whether Mr Rayney had misconducted himself as found in the Misconduct Decision or the Penalty Decision. Nor might the fair‑minded lay observer reasonably apprehend that the court's reference to a deliberate forensic decision having been made in those circumstances involved the court making its own independent finding of professional misconduct against Mr Rayney. Nor does the finding otherwise provide grounds upon which the fair‑minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions to be decided in the appeal.
9.My involvement in the Disciplinary Appeal Decision and the Consolidation and Suppression Decision adds no additional or different assessment (perceived or actual) from the Tribunal's assessment as to whether Mr Rayney had engaged in professional misconduct. Nor does the Disciplinary Appeal Decision, or the Consolidation and Suppression Decision, add any gravity to the Tribunal's findings. The Tribunal's findings have the gravity which they objectively bear, and there is no realistic prospect that a fair‑minded lay observer might conclude that I might, as an appellate judge on the hearing of this appeal, consider the findings any less or more serious than any other coram hearing the matter in which the issues in this appeal were ventilated.
10.This matter is distinguishable from the decision in Livesey to which Mr Rayney referred. In Livesey, there were disciplinary proceedings before the New South Wales Court of Appeal in which the court was required to make findings of primary fact concerning the conduct of the barrister, and to determine whether the barrister, Mr Livesey, had engaged in professional misconduct as alleged by the relevant professional body. Two members of the coram hearing Mr Livesey's disciplinary case had sat on an earlier case and had heard evidence on the same issues raised in Mr Livesey's case. Those judges had concluded, in the earlier case, that Mr Livesey had been involved in a 'corrupt agreement' or 'conspiratorial arrangement'.[99] The High Court said:[100]
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 [earlier 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 … it follows from what we have said that we consider that that question must be answered in the affirmative.
[95] Section 438 of the Legal Profession Act 2008 (WA).
[96] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [14].
[97] The findings were then undisturbed as the appeal itself had not yet been heard.
[98] Consolidation and Suppression Decision [19].
[99] Livesey (297).
[100] Livesey (300).
I will also address the topic of Mr Rayney's application to adduce additional evidence in the appeal, to which counsel for Mr Rayney referred, albeit without elaboration (see [38] and [41] above). I am also of the view that no proper basis for recusal has been shown in this regard.
On Mr Rayney's case, the application will only be relevant if (1) the court concludes that Mr Rayney has succeeded on the question of causation and on the assessment of damages, (2) the court does not remit the question of damages to a judge of the General Division, and (3) on an assessment of damages, Mr Rayney's primary contention that there was evidence at trial of his earning capacity in the relevant period is not accepted (see [31] above).
First, I do not consider that a fair‑minded lay observer might reasonably apprehend that, in light of the matters referred to by Mr Rayney in support of his recusal application, I might not bring an impartial mind to the question of whether additional evidence, particularly in the form of Mr Barton's further expert report and Mr Rayney's affidavit sworn 17 August 2020, ought be admitted on the appeal or upon any referral of the determination of damages to another officer of the court. That is not a question that I have had to decide before. Nor is it a question involving Mr Rayney's credit. Nor, in any event, have I expressed a clear (or any) view about Mr Rayney's credit.
The question of whether additional evidence should be allowed on an appeal is a procedural question involving the application of well‑known principles. It seems to me that there is no 'logical connection' between my involvement in the Disciplinary Appeal Decision or the Consolidation and Suppression Decision on the one hand, and the 'feared deviation' from the course of deciding such an interlocutory application on its merits on the other hand.[101]
[101] See Ebner [8].
Secondly, if leave were granted to Mr Rayney to adduce the additional evidence in the appeal, there would, in my view, again be 'no logical connection' between my participation in the Disciplinary Appeal Decision (or the Consolidation and Suppression Decision) on the one hand, and a feared deviation from an assessment of the expert and non‑expert evidence on its merits in relation to the assessment of damages on the other hand. I have not had to consider the question of Mr Rayney's earning capacity before, nor have I more generally considered the market for legal services in relation to someone in Mr Rayney's position in the circumstances relevant to this appeal. Nor have I expressed a clear, or indeed any, view on Mr Rayney's credit on such matters or otherwise before. Nor have I ever had to consider the evidence of Mr Barton, Mr Rayney's expert.
For these reasons, I do not consider that Mr Rayney's application to adduce additional evidence in the appeal is a proper basis upon which to recuse myself.
Further and in any event, I am not persuaded that there is a question of fact constituting a 'live' and 'significant' issue in relation to damages to which Mr Rayney's credit is relevant. In that regard:
1.There is no reason to suppose that documents purporting to be bank statements of Mr Rayney are not his bank statements.[102]
[102] See [25.1] above.
2.The summary table of the transactions in the bank statements, prepared by Mr Rayney's solicitors, will either be mathematically correct or not.[103]
[103] See [25.2] above.
3.In relation to Mr Barton's further report,[104] any judicial assessment of his expertise and expert conclusions would be undertaken without reference to Mr Rayney's credit.
[104] See [25.3] above.
4.As to the assumptions that Mr Barton has been asked to use:
(a)Mr Rayney's charge‑out rate will presumably be an assessment of the market rate for services capable of being commanded by somebody in Mr Rayney's position at the time.[105]
(b)The number of billable hours would also, prima facie, relate to the volume of work Mr Rayney would have attracted in the market at the time. There is presumably no issue that he had the physical or mental capacity to work 2,000 billable hours per annum had the work been available.[106] Indeed, the judge accepted that, in relation to past loss, he would have worked 2,000 hours per annum.[107]
(c)Mr Rayney's practice expenditure whilst at the bar and his after‑tax income are presumably derived, at least principally, from matters of documentary record.[108] Also, the judge noted that the experts had agreed $104,000 per annum as the applicable annual expenses for past loss.[109]
(d)The State no doubt accepts that Mr Rayney could not have worked whilst he was in custody.[110]
(e)In light of Mr Rayney's acknowledgements referred to in [33] above, as Mr Rayney has submitted, it is unlikely that his earning capacity in relation to the period in which his criminal trial was in progress would be contentious.
(f)On Mr Rayney's submissions, the likely area of contention in relation to his earning capacity concerns the period in which he was 'preparing' for his own criminal trial.[111] Mr Rayney's submissions focus in that regard on the period 1 January 2012 ‑ 15 July 2012 (the day before his criminal trial started). There is no reason so suppose that the underlying primary facts deposed to by Mr Rayney concerning his position in that period will be in dispute - that he engaged senior counsel, junior counsel, a competent instructing solicitor, and had the benefit of 150 ‑ 200 law students to assist in his preparation for the criminal trial.[112]
5.As Mr Rayney has submitted, for the most part, the evidence sought to be adduced is likely to be uncontroversial.
6.Objectively, the 'significant' and 'live' questions appear to be what inferences are to be drawn from the evidence as to Mr Rayney's circumstances in terms of his earning capacity at the time.
7.Further, if the court hearing the appeal were to conclude that there were critical facts bearing upon Mr Rayney's earning capacity which involved an assessment of Mr Rayney's credibility, ordinarily at least, the proper course (and this was not put in contest by counsel for Mr Rayney on this application) would be to order a new trial limited to an assessment of Mr Rayney's damages in relation to the outstanding issues.[113]
[105] See [27.1] above.
[106] See [27.2] above.
[107] Primary decision [952].
[108] See [27.3] - [27.5] above.
[109] Primary decision [946].
[110] See [27.6(a)] above.
[111] See [34] above.
[112] See [28.6] above.
[113] CSR Readymix (Australia) Pty Ltd v Payne [1998] 2 VR 505, 516; Lloyd v Faraone [1989] WAR 154, 164, 167 ‑ 168; Calder v Boyne Smelters Ltd [1991] 1 Qd R 325, 349; Government Insurance Office (NSW) v Evans (1990) 21 NSWLR 564, 577 ‑ 578.
For the reasons given in the preceding paragraph, I am not persuaded that there would arise for determination, in respect of the application to adduce additional evidence by Mr Rayney, 'live' and 'significant' questions in relation to damages to which Mr Rayney's credit is relevant.
The foregoing conclusion is confirmed by, but not dependent upon, the further matter that the State, in this application, has informed the court that if this court were to undertake an assessment of damages, (1) credit is not an issue that will arise, and (2) credit is not a finding that the court will be asked to make, or be required to make, in the determination of the assessment of damages. That statement may be accepted given the State's position as a model litigant.[114]
[114] cf Ferguson v The State of South Australia [2018] SASC 90 [26].
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NF
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza9 DECEMBER 2020
24
1