Rayney v The State of Western Australia [No 3]
[2020] WASCA 209
•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 3] [2020] WASCA 209
CORAM: CORBOY J
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:
Practice and procedure - Application to disqualify - Whether reasonable apprehension of bias as a result of hearing previous proceedings involving the appellant - Turns on its own facts
Legislation:
Nil
Result:
Application to disqualify dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr M L Bennett |
| Respondent | : | Ms R Young |
Solicitors:
| Appellant | : | Bennett + Co |
| Respondent | : | The State Solicitors Office (WA) |
Case(s) referred to in decision(s):
British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Legal Profession Complaints Committee and Rayney [2016] WASAT 142
Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5
Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 (S)
Legal Profession Complaints Committee v Rayney [2020] WASC 131
Michael Wilson & Partners v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Rayney v Legal Profession Complaints Committee [2019] WASCA 104
Rayney v The State of Western Australia [2019] WASCA 23
Rayney v The State of Western Australia [No 9] [2017] WASC 367
The State of Western Australia v Rayney [No 3] [2012] WASC 404
CORBOY J:
The application
The appellant (Mr Rayney) applies for an order that I recuse myself from hearing this appeal. I am satisfied I should not disqualify myself for the following reasons.
The background to the application
The Defamation Action
Mr Rayney was admitted to practice in the Supreme Court of Western Australia in 1986. He commenced practising solely as a barrister in June 2005. His name was removed from the roll of practitioners by order of the Supreme Court (full bench) made on 21 April 2020.[1]
[1] Legal Profession Complaints Committee v Rayney [2020] WASC 131.
Mr Rayney's wife was killed some time during the night of 7 ‑ 8 August 2007. Mr Rayney was charged with the wilful murder of Mrs Rayney on 8 December 2010. On 1 November 2012, Mr Rayney was found not guilty of the charge of wilful murder and the alternative crime of manslaughter.[2]
[2] The State of Western Australia v Rayney [No 3] [2012] WASC 404.
As at September 2007, Detective Senior Sergeant Jack Lee was the officer in charge of the investigation into the killing of Mrs Rayney. On 20 September 2007, DSS Lee participated in a media conference in which he was asked whether Mr Rayney was the prime suspect for the murder of Mrs Rayney. He replied, 'he's our only suspect at this time' and 'he is the primary person of interest, or the suspect'.
Mr Rayney commenced proceedings against the respondent (the State) alleging that the words spoken by DSS Lee at the media conference contained an untrue imputation that Mr Rayney had murdered his wife, alternatively that he had conducted himself so as to give rise to a reasonable suspicion that he had murdered his wife (the Defamation Action). Mr Rayney claimed:
(a)damages for economic loss/lost income caused by the effect the defamatory statements had on his practice as a barrister;
(b)general and aggravated damages - to compensate for lost personal and business reputation, personal hurt and distress and to vindicate his reputation.
On 20 December 2017, Chaney J entered judgment for Mr Rayney in the Defamation Action.[3] His Honour ordered the State pay Mr Rayney:
(a)$846,180.82 in damages for non‑economic loss (including interest) - his Honour found that general damages should be assessed from the date of the defamatory statements until the trial;
(b)$1,777,235 in damages for economic loss (including interest) - damages for economic loss were assessed for the period 20 September 2007 to 8 December 2010.
The appeal
[3] Rayney v The State of Western Australia [No 9] [2017] WASC 367.
Chaney J found that Mr Rayney's loss of income after 8 December 2010 was not caused by the words spoken by DSS Lee. Rather, Mr Rayney's capacity to generate income from his practice as a barrister was affected by a combination of events that occurred after he was charged on 8 December 2010:
The operative cause of [Mr Rayney's] reduced work after December 2010 was the fact he was charged with murder and shortly afterwards subjected to a very restrictive condition on his practice certificate. That event broke the chain of causation between the defamatory statements and the reduction in Mr Rayney's capacity to earn income as a barrister.[4]
[4] Rayney v The State of Western Australia [No 9] [942].
In the appeal, Mr Rayney contends that Chaney J erred in making that finding. Mr Rayney alleges that his Honour ought to have awarded damages for economic loss for some or all of the period 9 December 2010 to 22 November 2012[5] and for some or all of the period 16 February 2016 to 24 January 2018.[6]
[5] On 16 November 2012, the Legal Practice Board advised Mr Rayney that it intended to cancel his practising certificate. On 22 November 2012, the State lodged an appeal against the decision of Brian Martin AJ to acquit Mr Rayney of the charge of wilful murder and the alternative offence of manslaughter. Mr Rayney voluntarily undertook not to practice until such time as he had made a submission to the Legal Practice Board and on 17 December 2012, Mr Rayney provided a written undertaking that he would cease engaging in legal practice and not recommence without first giving the Legal Practice Board 42 days' notice: Rayney v The State of Western Australia [No 9] [929] ‑ [931].
[6] On 16 July 2015, the Legal Practice Board cancelled Mr Rayney's practising certificate. That decision was set aside by the State Administrative Tribunal on 10 February 2016, with the Tribunal ordering that the Legal Practice Board issue Mr Rayney with a practising certificate. Mr Rayney again commenced practising as a barrister: Rayney v The State of Western Australia [No 9] [932] ‑ [934].
Mr Rayney's grounds of appeal are reproduced in the reasons of the President. The orders sought by Mr Rayney, as amended, are also stated in the President's reasons.[7]
The State's notice of contention
[7] At [81] and [82].
The State has filed a notice of contention in the appeal. The notice is also reproduced in the President's reasons.[8] In summary, the State contends that the findings made by Chaney J on the causes of Mr Rayney's economic loss after 8 December 2010 can be upheld on the further grounds that:
(a)On 25 January 2018, the State Administrative Tribunal (SAT) found that Mr Rayney had engaged in professional misconduct within the meaning and for the purpose of the Legal Profession Act 2008 (WA) (LP Act) (the Misconduct Decision).[9]
(b)On 18 April 2018, SAT found that Mr Rayney lacked the honesty and candour required of a legal practitioner and transmitted a report on Mr Rayney's professional misconduct to the Supreme Court (full bench). The report recommended Mr Rayney's name be removed from the roll of practitioners (the Penalty Decision).[10]
(c)The findings by SAT concerned conduct that had occurred prior to 8 December 2010. Consequently, any loss of earning capacity suffered by Mr Rayney after 8 December 2010 'ought not fairly be regarded as a consequence' of the words spoken by DSS Lee in circumstances where his conduct rendered him unfit to earn income after that date from his practice as a barrister.[11]
The State's submissions on the notice of contention
[8] At [84].
[9] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5.
[10] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 (S).
[11] Respondent's notice of contention dated 22 June 2018; WB 75 - 76.
The State submits in the appeal that:
(a)At the time of judgment in the Defamation Action, SAT had heard but not determined the complaint made by the Legal Profession Complaints Committee (LPCC) that was the subject of the Misconduct Decision and the Penalty Decision. However, Chaney J took into account the fact that disciplinary proceedings had been commenced in deciding that DSS Lee's defamatory words did not cause Mr Rayney loss after February 2016 as the proceedings 'raised questions as to [Mr Rayney's] fitness to practice'.[12]
[12] Respondent's submissions, par 89; WB 68.
(b)Since the judgment in the Defamation Action, 'those "questions" as to [Mr Rayney's] fitness to practice have now been answered, adversely to [Mr Rayney]'. SAT found that Mr Rayney lacked the honesty and candour that are essential attributes of a legal practitioner and had transmitted a report to the Supreme Court that Mr Rayney be removed from the roll of practitioners.[13]
[13] Respondent's submissions, par 90 ‑ 91; WB 69.
(c)The findings and orders of SAT made in the proceedings prosecuted by the LPCC ought to be admitted as evidence in the appeal as:
(i)they confirm, and provide a further basis for upholding, the findings made by Chaney J in relation to Mr Rayney's claimed economic loss and provide an additional basis for dismissing the appeal in accordance with the State's notice of contention;
(ii)they are relevant to the assessment of Mr Rayney's loss in the event that the appeal is allowed.[14]
[14] Respondent's submissions, par 94; WB 69 ‑ 70.
(d)SAT found in the Misconduct Decision that Mr Rayney had twice provided false evidence to the Magistrates Court in 2009. The Tribunal further found in the Penalty Decision that Mr Rayney was not a fit and proper person to engage in legal practice.[15]
[15] Respondent's submissions, par 97; WB 70.
(e)SAT's findings were in respect of conduct that occurred prior to 8 December 2018 so that:
Given that the assessment of special damage caused by the defamation necessarily proceeds upon the basis of an assessment of a scenario that is hypothetical (ie. what would have occurred in the absence of the defamation) it is appropriate that that hypothetical assessment be made on the basis that the appellant was practising in circumstances in which he was not a fit and proper person to do so.[16]
[16] Respondent's submissions, par 98; WB 70.
(f)Further, the 'normative considerations' relevant to a finding of causation at common law and under the Civil Liability Act 2002 (WA) 'take on particular significance' - that is,
… where the only reason that the appellant 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.[17]
(g)The normative considerations relevant to a finding of causation require the legal policy for why responsibility for a particular loss should be imposed on a tortfeasor to be identified. In this case, policy considerations preclude Mr Rayney recovering, as damages, lost income in circumstances where his professional misconduct, if it had been identified and dealt with earlier, would have resulted in a determination that he was not fit to earn that income from practising as a barrister.[18]
(h)A number of matters are relevant to any assessment of damages for some or all of the periods 9 December 2010 to 22 November 2012 and 16 February 2016 to 24 January. There was no evidence led in the trial about some of those matters (for example, evidence as to the time which Mr Rayney devoted to preparing for the trial of the wilful murder charge). Further, it would be necessary in an assessment to allow for contingencies, including that 'the SAT proceedings that had now been determined adversely to [Mr Rayney]'.[19]
(i)The amended orders sought by Mr Rayney make no allowance for a number of the matters relevant to assessing the lost income claimed in the appeal. Consequently, it will be necessary for the court to receive further evidence should the appeal be allowed. The parties would then need to address the court on the appropriate orders for assessing Mr Rayney's damages, including whether a retrial in relation to discrete issues was necessary. The State anticipates that a retrial of some issues would be required to do justice between the parties.[20]
The Disciplinary Appeal Decision and the Strike-off Decision
[17] Respondent's submissions, par 99; WB 71.
[18] Respondent's submissions, par 100.
[19] Respondent's submissions, pars 104 ‑ 106.
[20] Respondent's submissions, pars 108 ‑ 110.
Mr Rayney appealed from the Misconduct Decision and the Penalty Decision. The appeal was dismissed (the Disciplinary Appeal Decision).[21] I sat on the appeal with Murphy JA and Smith J.
[21] Rayney v Legal Profession Complaints Committee [2019] WASCA 104.
The Supreme Court (full bench) considered the report transmitted by SAT after the Disciplinary Appeal Decision had been made. On 21 April 2020, the court accepted SAT's recommendation and ordered that Mr Rayney's name be removed from the roll of practitioners (the Strike‑off Decision).[22] I sat as a member of the court with Kenneth Martin J and Smith J.
The State's application to adduce additional evidence
[22] Legal Profession Complaints Committee v Rayney [2020] WASC 131.
The State seeks leave to adduce additional evidence in the appeal - evidence of the Misconduct Decision, the Penalty Decision, the Tribunal's orders in relation to those decisions, the Disciplinary Appeal Decision and the Strike‑off Decision.[23] The State submits that the decisions are relevant to the issues raised by its notice of contention.[24] The State's submissions on the issues raised by its notice are summarised above.
Mr Rayney's application to adduce additional evidence
[23] Respondent's application in an appeal dated 22 June 2018 and respondent's application in an appeal dated 20 August 2020. The applications are supported by the affidavit of Michelle Lindley made on 22 June 2018 and the affidavit of Fiona Beverly Seaward made on 21 August 2020.
[24] Respondent's submissions, pars 95 ‑ 101; WB 70 ‑ 71 and affidavit of Michelle Lindley made on 22 June 2018 (YB1, 3 ‑ 150) and affidavit of Fiona Beverly Seaward made on 21 August 2020 (YB1, 151 ‑ 438).
Mr Rayney also seeks leave to adduce additional evidence in the appeal:
(a)an affidavit he made on 17 August 2020;
(b)redacted bank statements for an account styled in Mr Rayney's name for the period 1 April 2017 to 31 March 2018 and a table summarising transactions made on the account in that period;
(c)an expert report from an actuary, Mr Dennis Barton, calculating Mr Rayney's claimed loss of income for the period 10 February 2016 to 24 January 2018.[25]
[25] Application in an appeal dated 25 August 2020; YB2, 439 ‑ 440.
Mr Rayney's affidavit deals with two topics:
(a)Mr Rayney's earnings in the period 17 July 2017 to 24 January 2018. The purpose of the evidence is to bring to account Mr Rayney's actual earnings to enable damages to be assessed should it be found that Chaney J was in error in not awarding compensation for the period 10 February 2016 to 24 January 2018. Bank statements and the table summarising the transactions recorded in the statements are attached to the affidavit.
(b)Mr Rayney's earning capacity for the period 9 December 2010 to 22 November 2012. Mr Rayney provides evidence of the effect that events in that period had on his capacity to generate income as a barrister, and also on his ability and willingness to accept instructions during the time that he was preparing for his criminal trial.
In support of his application for leave to adduce evidence in the appeal, Mr Rayney submits that:[26]
(a)The State asserts he did not provide evidence in the trial of the Defamation Action on various matters relevant to his claimed loss of income for the periods 9 December 2010 to 22 November 2012 and 16 February 2016 to 24 January 2018. Mr Rayney maintains that evidence about those matters was presented in the trial but the material attached to his affidavit of 17 August 2020 is intended to provide the information the State submits was not provided.
(b)Only parts of the affidavit of 17 August 2020 were likely to be contentious. The balance of the statements made in the affidavit were unlikely to be controversial.
(c)The likely contentious parts of his affidavit only concern the extent to which Mr Rayney could have earned income during the time he was engaged in preparing for his criminal trial.
(d)The evidence sought to be adduced in the appeal could have been elicited in the trial of the Defamation Action had the State cross-examined Mr Rayney on his capacity to generate income while preparing for his criminal trial. The evidence 'confirms that the assumptions that the [State's] expert was instructed to make were without foundation' (the reference to the State's expert is to Mr Martin Langridge, a forensic accountant). Further, 'Mr Langridge's calculation made on the basis of that assumption[s] ought not to be accepted if the calculation of [Mr Rayney's] loss and damage is revisited on appeal'.[27]
The reasons why Mr Rayney seeks my disqualification
[26] Applicant's submissions in support of application to adduce further evidence 25 August 2020; YB2, 483 ‑ 495.
[27] Applicant's submissions in support of an application to adduce further evidence, par 39; YB2, 494.
Mr Rayney submits that:
(a)By its notice of contention and written submissions in the appeal, the State contends that its tortious conduct should not be considered the cause of any economic loss suffered by Mr Rayney after 8 December 2010 as his conduct rendered him unfit to practice law. The State relies, among other things, on the orders and reasons of SAT in the Misconduct Decision and the Penalty Decision to make that assertion.
(b)The State invites the court to have regard to policy considerations in respect of whether 'the harm ought fairly be regarded as a consequence of the tortious conduct'.
(c)The State further contends that the Misconduct Decision and the Penalty Decision, which were upheld in the Disciplinary Appeal Decision and which resulted in Mr Rayney being removed from the roll pursuant to the Strike‑off Decision:
(i)'confirm and provide a further basis for upholding the findings made by Chaney J on the cause of Mr Rayney's economic loss and provide an additional basis for dismissing the appeal';
(ii)would, in any event, be relevant to the assessment of Mr Rayney's loss in the event that the appeal was allowed.[28]
(d)I made adverse findings against Mr Rayney in the Disciplinary Action Decision and the Strike‑off Decision and expressed clear views either about a question of fact that is a live and significant issue in the appeal or about the credit of Mr Rayney (whose evidence is significant to the determination of a question of fact in the appeal).
(e)The adverse findings I made, as a member of this court or the full bench of the Supreme Court, are relied on by the State as evidence in support of its arguments that the appeal should be dismissed.
(f)It would be inappropriate, and give rise to a reasonable apprehension of bias in a lay observer, if a judge hearing the appeal had made serious findings of misconduct against Mr Rayney.
[28] Applicant's submissions in support of application in an appeal dated 3 September 2020, pars 13 ‑ 16.
Participation in previous matters
The Disciplinary Appeal Decision
In summary, SAT found in the Misconduct Decision that Mr Rayney had engaged in professional misconduct within the meaning and for the purpose of the LP Act by:
(a)recording private conversations with Mrs Rayney on a dictaphone in knowing contravention of s 5(1) of the Surveillance Devices Act 1998 (WA);
(b)knowingly giving false evidence about those matters in the Magistrates Court in 2009.
The Tribunal found in the Penalty Decision that:
(a)Mr Rayney knew he was acting unlawfully in recording conversations with Mrs Rayney without her consent in contravention of s 5(1) of the Surveillance Devices Act 1998. Further, Mr Rayney's acts 'consisted of premeditated and sustained breaking of the law demonstrating Mr Rayney's disregard for the law'. His conduct was professional misconduct.[29]
(b)The appropriate penalty for that professional misconduct would have been suspension from practice for one year. However, the appropriate penalty was a reprimand after taking into account the periods in which Mr Rayney had been restricted in his ability to practice or had been unable to practice.[30]
(c)By his conduct in giving evidence that he knew to be false with the intention of misleading the Magistrates Court, Mr Rayney had demonstrated he lacked the honesty and integrity that are essential pre-requisites to the right to practice law. Further, he had not demonstrated remorse or insight into his professional misconduct. Moreover, Mr Rayney's professional misconduct was not isolated - he had given false evidence about the recording of his conversations with Mrs Rayney in 2015 (in proceedings in SAT to review the Legal Practice Board's decision to cancel his practising certificate); in 2017 (in the Defamation Action); and in 2017 (in appearing before SAT).[31]
(d)The penalty for Mr Rayney's professional misconduct in giving false evidence was a recommendation that his name be removed from the roll of practitioners. That was the only appropriate penalty having regard to the need to protect the public by marking the seriousness of knowingly giving false evidence and the requirement that the penalty act as a general and personal deterrent.[32]
[29] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 (S) [117].
[30] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 (S) [118] - [122].
[31] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 (S) [126].
[32] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 (S) [128].
Mr Rayney appealed to this court from the Misconduct Decision and the Penalty Decision. There were six grounds of appeal and an application was made in the appeal to adduce additional evidence. The appeals were dismissed and the application to adduce additional evidence was also dismissed. The judgment dismissing the appeals and the application was a judgment of the court.[33]
[33] Rayney v Legal Profession Complaints Committee [2019] WASCA 104.
As noted above, Mr Rayney submits that in the Disciplinary Appeal Decision I made findings that were adverse to him and expressed clear views about either a question of fact that constitutes a live and significant issue in the appeal or about his credit. The 'findings'[34] identified by Mr Rayney are:
[34] As will become apparent, in my view, I and the other members of the court did not make 'findings' about Mr Rayney's professional conduct and credit in the Disciplinary Action Decision. Rather, the court reviewed findings made by SAT in the Misconduct Decision and the Penalty Decision according to the principles relevant to the exercise of this court's appellate function.
(a)At [480] of the judgment, the court stated that 'Mr Rayney at all material times knew that he had disposed of the dictaphone used to record Mrs Rayney and that he could not recall the make and model of the dictaphone that he had used'.
(b)At [593], the court concluded that '[t]he Tribunal's reasons referred to in [586] … 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'. Mr Rayney submits that I made the following finding in that passage:
In relation to whether [Mr Rayney's] evidence of consent was knowingly false, [Mr Rayney] was not merely mistaken, 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.[35]
[35] Applicant's submissions in support of application in an appeal dated 3 September 2020, par 33.1.
(c)At [611] ‑ [612], the court stated:
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:
…
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] … do not establish error. They tend to confirm the Tribunal's findings that Mr Rayney's account of events was implausible.
Mr Rayney submits I found in those passages that:
33.2.1[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;
33.2.2[Mr Rayney] had omitted to mention any oral insinuation in his affidavit of 2 February 2009 because none had been made;
33.2.3[Mr Rayney's] account of events was implausible.[36]
(d)At [656] ‑ [658], the court concluded that a deliberate forensic decision had been made not to tender the opinions expressed by Dr Chapman and Professor Foster - opinions to the effect that Mr Rayney might have given evidence before the Magistrates Court in 2009 that was unreliable (but honest) due to a medical condition.
[36] Applicant's submissions in support of application in an appeal dated 3 September 2020, par 33.2.
Mr Rayney also submits that I made adverse findings and expressed views about his credit at [627] of the court's judgment. In that paragraph, the court provided reasons why ground 4 of Mr Rayney's appeal from the Misconduct Decision should be dismissed. Ground 4 challenged the finding made by SAT that the dictaphone used to record conversations with Mrs Rayney was not visible to her at the time the recordings were made. The ground alleged that SAT's findings were 'glaringly improbable, or contrary to compelling inferences, or were flawed by reference to uncontested testimony'.
At [627] of the judgment, the court stated:
Thirdly, Mr Rayney's submissions (including with respect to matters in [a schedule of evidence filed in the appeal on behalf of Mr Rayney]) 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] …, including as to the implausibility of Mr Rayney's evidence. Similarly, it was open to the Tribunal to find (see [385.2] …) 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. …
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] …
In relation to the conclusions expressed at [627], Mr Rayney submits that I found:
33.3.1[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;
33.3.2When [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 her 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;
33.3.3It was difficult to conceive that Mrs Rayney acquiesced, expressly or impliedly, to the making of the recordings, in the latter case through watching [Mr Rayney] recording her as she was speaking, having regard to the accusatory and bitter nature of the dealings and communication.[37]
The Strike‑off Decision
[37] Applicant's submissions in support of an application in the appeal dated 3 September 2020, par 33.
SAT's report to the full bench of the Supreme Court comprised its reasons for the Misconduct Decision and the Penalty Decision, the orders which it made to give effect to the Misconduct Decision and the transcript and exhibits lists for the hearings that were held in the Tribunal.
The findings made by SAT in the Misconduct Decision and Penalty Decision fell into two broad categories:
(a)Findings about Mr Rayney's actual conduct: did he engage in the conduct alleged by the LPCC and if so, in what circumstances?
(b)Findings about the nature - the characterisation - of Mr Rayney's conduct: had he acted dishonestly; was he guilty of professional misconduct; was he a fit and proper person to engage in legal practice; and should a recommendation be made that his name be removed from the roll of practitioners having regard to his conduct and the need to protect the public?
Section 444 of the LP Act provides:
(1)If the State Administrative Tribunal under s 438(2)(a) makes and transmits a report in respect of an Australian legal practitioner to the Supreme Court (Full Bench), the report is to be taken to be conclusive as to all facts and findings mentioned or contained in the report.
(2)The Supreme Court (Full Bench) may, upon motion and upon reading the report, and without any further evidence do either or both of the following -
(a)make any order that the State Administrative Tribunal may make under s 439, 440 and 441;
(b)order the removal from the roll of the name of an Australian legal practitioner who is a local lawyer.
Accordingly, on receipt of SAT's report and recommendation, the full bench of the Supreme Court was required to decide what orders should be made given the powers conferred by s 439 to s 441 and s 444 of the LP Act. SAT's findings on Mr Rayney's actual conduct and the characterisation of that conduct, as reported to the Supreme Court, were conclusive findings for that purpose.
The full bench did not receive evidence in addition to SAT's report. Consequently, the appropriate penalty for Mr Rayney's conduct was determined on the reported and conclusive findings of SAT (that is, on the findings made in the Misconduct Decision and the Penalty Decision). The court accepted and gave effect to SAT's recommendation having regard to those findings. As already noted, Mr Rayney consented to an order being made by the court that his name be removed from the roll of practitioners.
In holding that Mr Rayney's name should be removed from the roll, the full bench observed in the Strike‑off Decision that:
(a)The first finding of professional misconduct by SAT was a finding 'in effect that Mr Rayney had committed a criminal offence by contravening the Surveillance Devices Act, which conduct warranted suspension from practice in itself, and concerned deceptive conduct, as the recording of the conversations were carried out without the knowledge or consent of Mrs Rayney, by concealing a dictaphone (upon which the conversations were recorded) from Mrs Rayney'.[38]
(b)Two other findings of professional misconduct made by SAT - intentionally misleading the Magistrates Court in 2009 - involved dishonest conduct. Further, 'as the Tribunal found, this dishonest conduct was not isolated to 2009. Mr Rayney knowingly repeated the false evidence about the recording of his conversations with Mrs Rayney on three further occasions'.[39]
(c)Findings by SAT that a medical condition from which Mr Rayney suffered did not explain or excuse his conduct were 'plainly apposite'.[40]
(d)By his professional misconduct, Mr Rayney had demonstrated a persistent propensity to engage in dishonest behaviour and 'by that sustained professional misconduct Mr Rayney has demonstrably failed to conduct himself with the honesty and candour required of every legal practitioner'.[41]
(e)There was nothing before the court that might sufficiently mitigate, explain or excuse Mr Rayney's professional misconduct and nothing that demonstrated he accepted he had acted unprofessionally or was remorseful for his professional misconduct. That was despite the fact that he did not oppose the recommendation that he be removed from the roll of practitioners.[42]
[38] Legal Profession Complaints Committee v Rayney [2020] WASC 131 [37].
[39] Legal Profession Complaints Committee v Rayney [2020] WASC 131 [38].
[40] Legal Profession Complaints Committee v Rayney [2020] WASC 131 [39] ‑ [40].
[41] Legal Profession Complaints Committee v Rayney [2020] WASC 131 [44].
[42] Legal Profession Complaints Committee v Rayney [2020] WASC 131 [46].
Mr Rayney submits that the 'findings' referred to in paragraphs (a), (b) and (d) above were findings that were adverse to him and that:
(a)the effect of the 'findings' I made, as a member of the full bench, was that Mr Rayney was not a fit and proper person to remain a legal practitioner 'essentially because of his fundamental failure to adhere to his duties to the court to act honestly';
(b)the effect of the 'finding' referred to in paragraph (e) above was a finding that:
[Mr Rayney] demonstrated willingness to engage in dishonest behaviour, and his persistent failure to appreciate the import and consequences of that behaviour, and the consequent negative impact that had rendered against the level of trust that should otherwise be reposed in him, by the court, his colleagues and clients, was so serious that the only appropriate order for the court to make was an order to remove [Mr Rayney's] name from the Roll.[43]
Other matters
[43] Applicant's submissions in support of application dated 3 September 2020, pars 37 and 38.
Mr Rayney's application refers only to my participation in the Disciplinary Appeal Decision and the Strike‑off Decision. However, I note that:
(a)I sat with Martin CJ and Murphy JA in Legal Profession Complaints Committee v Rayney,[44] an appeal from the decision of SAT[45] dismissing the proceedings commenced by the LPCC that were ultimately determined by the Misconduct Decision and the Penalty Decision;
(b)I sat with Murphy JA in Rayney v The State of Western Australia,[46] in which a stay of this appeal was temporarily granted pending the determination of the separate appeal by Mr Rayney from the Misconduct Decision and the Penalty Decision.
[44] Legal Profession Complaints Committee v Rayney [2017] WASCA 78.
[45] Legal Profession Complaints Committee and Rayney [2016] WASAT 142.
[46] Rayney v The State of Western Australia [2019] WASCA 23.
As to those matters:
(a)The appeal in Legal Profession Complaints Committee v Rayney turned on questions of law: the relationship between the LPCC and the Legal Practice Board; the legal principles relevant to privity, estoppel and abuse of process; whether the LPCC had been denied procedural fairness in a hearing before SAT; whether it was oppressive for the LPCC to maintain its complaints in SAT; and whether the prosecution of the complaints should be permanently stayed. No question concerning whether Mr Rayney had engaged in professional misconduct, as alleged by the LPCC, was raised in the appeal nor was Mr Rayney's credit in issue. I agreed with the reasons given by Martin CJ for allowing the appeal.
(b)In Rayney v The State of Western Australia, Murphy JA and I allowed an application by the State for a stay of this appeal until Mr Rayney's appeal from the Misconduct Decision and the Penalty Decision had been determined. The application was granted having regard to the issues sought to be raised by the State in its notice of contention and to avoid multiple proceedings.
I have not heard any matter at first instance in which Mr Rayney was a party nor has he given evidence before me in any matter in which I was the primary decision maker.
The State's position
It was not appropriate for the State to either consent to or oppose Mr Rayney's application. However, the State was given leave to make submissions on the legal principles to be applied in determining the application and on whether any prior 'finding' by the President, Murphy JA or myself concerned a live and significant issue in the appeal.
The State submitted in relation to the Disciplinary Appeal Decision that:
(a)the finding by SAT, upheld on appeal in the Disciplinary Appeal Decision, that Mr Rayney lied under oath about Mrs Rayney's consent is not (and could not be) challenged in the appeal and accordingly, is not a 'live' issue;
(b)findings by SAT, upheld in the Disciplinary Appeal Decision, about Mr Rayney's use and disposal of the dictaphone that was employed to record conversations with Mrs Rayney are not relied on by the State in support of its notice of contention and it is not necessary to reconsider those findings in the appeal;
(c)the conclusion that Mr Rayney made a forensic decision not to adduce expert evidence from Dr Chapman and Professor Foster is not relied upon by the State in support of its notice of contention and does not need to be reconsidered in the appeal.
In relation to the Strike‑off Decision, the State submitted:
(a)The full bench of the Supreme Court did not make any findings in determining the appropriate penalty for Mr Rayney's professional misconduct. Rather, the court acted on findings made by SAT, upheld in the Disciplinary Appeal Decision, that Mr Rayney had breached the Surveillance Devices Act and had lied about that matter under oath. Further, any findings that might have been made by the court are not challenged, and could not be challenged, in the appeal.
(b)Mr Rayney did not oppose his name being removed from the roll of practitioners and the fact that he was struck off could not be challenged in the appeal.
(c)Accordingly, the Supreme Court did not make 'findings' that relate to a live and significant issue in the appeal.
The test for disqualification
The test for determining whether a judicial officer is disqualified by reason of the appearance of bias is whether 'a fair, open‑minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question that the officer is required to decide'.[47] The test is objective and is founded on the need for public confidence in the judiciary.[48]
[47] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [12] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).
[48] Johnson v Johnson [12]; Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427.
The hypothetical fair‑minded lay observer is taken to be a reasonable person who will appreciate that the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to disregard the irrelevant, the immaterial and the prejudicial'.[49]
[49] Johnson v Johnson [12].
The application of the test involves two steps. First, it requires an identification of what might lead the judicial officer to decide a case other than on its legal and factual merits. Second, there must be a logical connection established between that matter and the 'feared deviation from the course of deciding the case on its merits'.[50]
[50] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [8] (Gleeson CJ, McHugh, Gummow & Hayne JJ).
Mr Rayney's submissions on each of those steps have been summarised above:
(a)it is submitted that the findings I made in the Disciplinary Appeal Decision and in the Strike‑off Decision might lead me to decide the appeal other than on its legal and factual merits;
(b)the logical connection between that matter and the 'feared deviation from the course of deciding the [appeal] on its merits' is said to lie in the State's reliance for its notice of contention on the findings made by SAT in the Misconduct Decision and the Penalty Decision, findings that were the subject of the Disciplinary Appeal Decision and the Strike-off Decision.
Matters the hypothetical lay observer is assumed to know
The hypothetical lay observer assessing possible bias is taken to be aware of the nature of the decision to be made, the context in which it is to be made and the circumstances leading to the decision.[51] Although the question of whether a hypothetical lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely a factual one, the question is to be determined in the legal, statutory and factual contexts in which the decision falls to be made.[52]
[51] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 [23] (Kiefel, Bell, Keane & Nettle JJ).
[52] Isbester v Knox City Council [20] (Kiefel, Bell, Keane & Nettle JJ).
The hypothetical lay observer is not assumed to have a detailed knowledge of the law but the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.[53] In Johnson v Johnson, Kirby J described the qualities of the hypothetical lay observer in the following terms:[54]
… Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair‑minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances.
However, his Honour also warned against attributing to the hypothetical lay observer an excessive 'sophistication and knowledge about the law and its ways' that was 'atypical of the general community'.[55]
[53] Johnson v Johnson [13] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).
[54] Johnson v Johnson [53].
[55] Johnson v Johnson [54].
In British American Tobacco Australia Services Ltd v Laurie,[56] French CJ observed that the knowledge attributed to the hypothetical lay observer did not extend to a knowledge of the law that ordinary experience shows not to be the case. However, his Honour also agreed with Kirby J that the hypothetical lay observer would, before forming a view about the existence of a reasonable apprehension of bias, take the trouble to inform himself or herself to the extent necessary to make a fair judgment.[57] In Isbester v Knox City Council, Gageler J noted that the hypothetical lay observer was assumed to possess knowledge of any relevant statutory framework and the factual context within which a decision is to be made.[58]
[56] British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283.
[57] British American Tobacco Australia Services Ltd v Laurie [46] ‑ [47].
[58] Isbester v Knox City Council [57].
I consider that the hypothetical lay observer would know the following matters after taking the trouble to inform himself or herself to the extent necessary to make a fair judgment on the question of whether bias might reasonably be apprehended if I sat as a member of the court hearing and determining the appeal:
(a)the factual context to the Defamation Action and the appeal - that is, the circumstances in which DSS Lee spoke the words at the media conference in September 2007 and why those words were found to contain an untrue imputation against Mr Rayney;
(b)the grounds of appeal and the State's contention and the issues raised by the appeal notice and notice of contention;
(c)the nature of the evidence that Mr Rayney and the State seek to adduce in the appeal;
(d)that disciplinary proceedings were prosecuted by the LPCC against Mr Rayney and that findings were made by SAT in the Misconduct Decision and the Penalty Decision about Mr Rayney's honesty and professional misconduct and about the appropriate penalties to be imposed;
(e)that Mr Rayney appealed from the Misconduct Decision and the Penalty Decision alleging that SAT had made certain errors, as identified in his grounds of appeal, and that the appeal, and each ground of appeal, was dismissed for the reasons stated in the Disciplinary Appeal Decision;
(f)that a report was provided by SAT to the Supreme Court (full bench) recommending that Mr Rayney's name be removed from the roll of practitioners; that the report substantially comprised the Misconduct Decision and the Penalty Decision; that Mr Rayney did not oppose an order being made for his name to be removed from the roll; and that the full bench of the Supreme Court acted on SAT's recommendation for the reasons given in the Strike‑off Decision;
(g)that I was a member of the court that made the Disciplinary Appeal Decision and the Strike‑off Decision and that I had heard and determined other matters involving Mr Rayney as a member of this court but I had not sat at first instance in any matter in which Mr Rayney was a party nor had I made any finding about Mr Rayney's credit in any matter in which I was the primary decision maker;
(h)that I have not previously considered any expert report or evidence given by Mr Barton.
I also consider that the hypothetical lay observer would inform himself or herself to the extent of knowing that:
(a)the role of the court in determining the appeal from the Misconduct Decision and the Penalty Decision was to consider whether SAT had made any error of fact or law as identified in Mr Rayney's grounds of appeal;
(b)the statutory context in which the Strike‑off Decision was made included that the findings of SAT, as stated in its report to the Supreme Court (full bench), were conclusive.
I consider that the hypothetical lay observer would inform themselves about those matters to fairly judge the question of whether bias might reasonably be apprehended if I sat as a member of the court hearing and determining the appeal having regard to the circumstances of Mr Rayney's application that I disqualify myself; the issues raised in the appeal, including by the State's notice of contention; and the nature of the matters on which Mr Rayney and the State seek to adduce additional evidence.
Disposition
I am satisfied that there is no proper basis upon which a hypothetical lay observer who knows or is aware of the objective circumstances of the appeal, including the matters to which I have referred immediately above, could reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the questions to be decided in the appeal. I am satisfied about that matter for the following reasons.
Mr Rayney's submissions, in effect, misconceive the function of this court in determining the appeal from the Misconduct Decision and the Penalty Decision and the role and powers of the full bench of the Supreme Court in considering the report and recommendation transmitted by SAT. The submissions elide the distinction between reasons and findings and in doing so, mischaracterise the effect of what is stated in the Disciplinary Appeal Decision and the Strike‑off Decision.
The court did not make findings about Mr Rayney's conduct or credit in the Disciplinary Appeal Decision. Rather, the court determined whether SAT had made an error of fact or law in its findings about Mr Rayney's conduct. That is, the court considered the findings made by SAT, as stated in the Misconduct Decision and the Penalty Decision and as challenged by Mr Rayney in his appeal notice, according to the principles that govern appellate review of a decision by SAT.
That is evident from the court's judgment read as a whole. As for the particular 'findings' identified by Mr Rayney as adverse findings that I made in the Disciplinary Appeal Decision:
(a)The judgment at [480] recites a finding made by SAT. The paragraph forms part of the reasons given by the court for why ground 3 of the appeal was dismissed. Ground 3 alleged that SAT's decision not to accept the tender of a particular dictaphone and evidence about its operation, at the hearing of the LPCC's complaint, was unreasonable or plainly unjust.
(b)The judgment at [593] expresses a conclusion about whether SAT erred by inferring that Mr Rayney was not merely mistaken in his evidence about Mrs Rayney's consent but that he appreciated his evidence was not the truth. The finding that Mr Rayney was not merely mistaken but knew his evidence was untrue is a finding of fact made by SAT. The court's conclusion at [593] is a finding about whether SAT was in error in making that finding.
(c)The judgment [611] ‑ [612] expresses the court's conclusion on whether SAT had made credit‑based findings that were susceptible to challenge in the appeal according to the principles that apply to appellate review of such findings. The passages of the judgment to which Mr Rayney refers are part of the court's reasons for finding that SAT had not made credit‑based findings that could, and should, be reversed on appeal.
(d)The judgment at [656] ‑ [658] identifies an inference that was drawn by the court from the way in which Mr Rayney conducted his defence of the complaint prosecuted by the LPCC. The inference can be characterised as a finding by the court but it is not a finding about Mr Rayney's conduct or credit. Rather, the inference merely reflects the obvious forensic difficulty in adducing the expert evidence to explain why Mr Rayney might have been mistaken in his evidence given that he positively asserted that Mrs Rayney had consented to the recordings and was aware that he was using a dictaphone for that purpose. I do not consider the court's finding on this aspect would provide a proper basis for a hypothetical lay observer to conclude that there was a reasonable apprehension of bias if I heard and determined Mr Rayney's appeal.
(e)The judgment at [627] is concerned with the question of whether SAT made an error of fact in finding that the dictaphone used by Mr Rayney was not visible to Mrs Rayney when their conversations were recorded. The numbered sub‑paragraphs in [627] contain the court's reasons for concluding that SAT had not made an error. The matters of fact stated in the sub‑paragraphs reflect findings that were made by the Tribunal.
Similarly, the full bench of the Supreme Court acted on and gave effect to SAT's conclusive findings in accepting the recommendation that Mr Rayney's name be removed from the roll of practitioners. The 'findings' identified in Mr Rayney's submissions are findings reported to the full bench by SAT. They are referred to in the Strike‑off Decision to explain SAT's recommendation and why the recommendation was accepted by the full bench.
The full bench did not make independent findings about Mr Rayney's conduct, the characterisation of his conduct or his honesty. Rather, the full bench considered the report and recommendation by SAT in order to determine whether the appropriate penalty for the conduct conclusively found by SAT was to remove Mr Rayney's name from the roll of practitioners.
Further, the following matters are not challenged, and could not be challenged, in the appeal and accordingly, are not live and significant issues:
(a)the findings made by SAT in the Misconduct Decision and the Penalty Decision;
(b)that an appeal from those decisions was dismissed by the court in the Disciplinary Appeal Decision;
(c)that SAT transmitted a report to the Supreme Court (full bench) substantially comprising the Misconduct Decision and the Penalty Decision;
(d)that SAT recommended that Mr Rayney's name be removed from the roll of practitioners;
(e)that the findings made by SAT, as reported to the full bench of the Supreme Court, were conclusive findings;
(f)that the full bench ordered that Mr Rayney's name be removed from the roll of practitioners.
Mr Rayney's appeal raises questions of fact and law. However, they are not questions I have previously considered nor are they questions about which I have expressed a view. Further, the State's notice of contention raises a question of law. Again, I have not previously considered or expressed any view about that question. Although I have considered the Misconduct Decision and the Penalty Decision and was a member of the courts that made the Disciplinary Appeal Decision and the Strike‑off Decision, the facts underpinning the question of law raised by the State's notice of contention have been found by SAT (and not me) and the parties are bound by those findings.
The question of whether the State and/or Mr Rayney should be permitted to adduce evidence in the appeal is a procedural question to be determined according to well established principles governing the admission of evidence in an appeal. I have not previously considered or expressed any view on whether the State or Mr Rayney should be granted leave to adduce evidence in the appeal or on any issue relevant to deciding the applications for leave.
Further, I have not previously considered or expressed a view about Mr Rayney's financial circumstances or about his capacity to earn income as a barrister in the periods relevant to the appeal (or at all) or about any other matter stated in Mr Rayney's affidavit made on 17 August 2020.
I have not made any finding about Mr Rayney's credit. I have reviewed, on appeal, findings made by SAT about Mr Rayney's professional conduct and honesty in the Disciplinary Appeal Decision and I have acted on and given effect to those findings in the Strike‑off Decision. However, I have not acted as the trier of fact in either of those matters nor have I acted as the trier of fact in any proceeding involving Mr Rayney.
Further, I do not consider I will be required to make an assessment of Mr Rayney's credit on any issue arising or likely to arise in the appeal. It will be necessary to assess Mr Rayney's entitlement to compensation for lost income if the appeal is allowed. Ordinarily, the matter would be remitted back to a judge sitting in the General Division to undertake that assessment.
However, Mr Rayney's credit would not be in issue if the court decided to assess Mr Rayney's claim for compensation as part of the appeal:
(a)Annexures LRP‑1 and LRP‑2 to Mr Rayney's affidavit of 17 August 2020 are copies of statements issued by Mr Rayney's bank.
(b)Mr Rayney relied on information provided by his solicitors to make statements in his affidavit about the evidence discovered in the Defamation Action.
(c)I do not consider that it is necessary to make an assessment of Mr Rayney's credit to make findings about the matters stated in paragraphs 6, 9 to 13 and 16 to 18 of Mr Rayney's affidavit of 17 August 2020.
(d)Paragraphs 14, 15 and 19 to 21 of Mr Rayney's affidavit contain evidence about the extent to which Mr Rayney was able and willing to accept instructions while preparing for his criminal trial. The State's position is that this evidence raises an issue about the likelihood of solicitors briefing Mr Rayney at a time when he stood charged with the wilful murder of Mrs Rayney.[59] That is a matter to be determined according to objective facts and circumstances and not by reference to Mr Rayney's subjective opinions and evidence.
(e)Further, the State's foreshadowed position indicates that a number of matters relevant to assessing Mr Rayney's claim for compensation are not in issue. Moreover, it is to be expected that Mr Rayney's business records would provide the primary source of evidence about the circumstances of his professional practice at the relevant time.
[59] ts 27 ‑ 28, 7 September 2020.
I also consider that, in any event, the hypothetical lay observer would not conclude there was a reasonable apprehension of bias if I was required to assess the credibility of some of the statements made by Mr Rayney in his affidavit of 17 August 2020. In my view, the hypothetical lay observer would conclude that there was no proper basis for any reasonable apprehension of bias after he or she had considered:
(a)the content of the statements made by Mr Rayney in his affidavit;
(b)the issues raised by Mr Rayney in his affidavit and the State's position on those issues;
(c)the issues to be determined in an assessment of Mr Rayney's entitlement to compensation if the appeal is allowed;
(d)what I decided, as a member of this court and the full bench of the Supreme Court, in the Disciplinary Appeal Decision and the Strike‑off Decision.
I have not previously considered any expert report or evidence given by Mr Barton concerning Mr Rayney's financial circumstances or on any loss caused, or alleged to have been caused, by DSS Lee's defamatory words. I have not previously made any decision about or expressed any view on an opinion or expert evidence provided by Mr Barton in any proceeding.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
Associate to the Honourable Justice Corboy
9 DECEMBER 2020
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