JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: REYNOLDS -v- RAYNEY [2023] WASCA 144
CORAM: MAZZA JA
VAUGHAN JA
MULLINS AJA
HEARD: 13 SEPTEMBER 2023
DELIVERED : 6 OCTOBER 2023
FILE NO/S: CACV 99 of 2022
BETWEEN: MARK REYNOLDS
Appellant
AND
LLOYD PATRICK RAYNEY
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: HILL J
Citation: RAYNEY -v- REYNOLDS [No 3] [2022] WASC 324
File Number : CIV 1827 of 2015
Catchwords:
Courts and judicial system - Judges - Apprehended bias - Appeal against trial judge's dismissal of application for recusal on ground of apprehended bias - Judge was employee and subsequently partner at law firm of counsel appearing at trial - Whether fair‑minded lay observer might reasonably apprehend that trial judge might not bring an impartial mind to decision - Knowledge to be attributed to fair‑minded lay observer - Whether non‑disclosure of prior working relationship reinforces apprehension of bias - Turns on own facts
Legislation:
Nil
Result:
Application for extension of time to appeal granted
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | N Ekanayake |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Bennett |
Case(s) referred to in decision(s):
Antoun v The Queen [2006] HCA 2; (2006) 80 ALJR 497
Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 65 FCR 215
Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43
Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225
British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283
Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Emanuele v Emanuel Investments Pty Ltd (in liq) (1997) 139 FLR 36
Finch v Heat Group Pty Ltd [2022] FedCFamC2G 848
Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530
In the Marriage of Kennedy and Cahill (1995) 19 Fam LR 173
Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419
Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272
Rayney v Legal Profession Complaints Committee [2018] WASCA 73
Rayney v Reynolds [No 3] [2022] WASC 324
Rayney v Reynolds [No 4] [2022] WASC 360
Rayney v Reynolds [No 4] [2022] WASC 360 (S)
Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342
Re Polites; Ex parte The Hoyts Corporation Pty Ltd [1991] HCA 25; (1991) 173…
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- AGLC
- Reynolds v Rayney [2023] WASCA 144
- Case
- [2023] WASCA 144
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the prior professional relationship between the primary judge and Mr. Bennett constituted a ground for reasonable apprehension of bias. Dr. Reynolds argued that the nature and duration of the relationship created a bias that affected the fairness of the trial. The court had to determine if this relationship was such that it could lead a fair-minded lay observer to question the judge's impartiality.
The court considered the precedents that establish the standard for assessing bias in judicial officers. It held that while it is inevitable that judges may have personal or professional associations with counsel, this alone does not amount to bias. The fair-minded lay observer, aware of the legal system and judicial practice, would expect judges to set aside such associations. The court examined the specific circumstances of the relationship between the judge and Mr. Bennett, noting the significant duration and intensity of their professional interaction. Despite this, the court concluded that the prior relationship did not give rise to a reasonable apprehension of bias. The fair-minded observer would still expect the judge to remain impartial and objective in her judicial role.
The court found that the primary judge's prior relationship with Mr. Bennett did not constitute a reasonable apprehension of bias. The appeal was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Ratio Decidendi
Legal Principle Established
Judges will often know the counsel and solicitors who appear before them - a matter which the fair-minded lay observer is taken to be aware of given that judges are appointed from the senior ranks of the legal profession.[66] In that respect it has been regarded as inevitable that, within a court, some judges will have personal or professional associations with the counsel who appear in the court. That, without more, has not been regarded as sufficient to give rise to a reasonable apprehension of bias. A fair-minded lay observer with an appreciation of the legal system and ordinary judicial practice would recognise the ability to put aside such associations while discharging public responsibilities - this being a capacity generally expected of judges and counsel.[67][66] Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272, 276. See also Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (230).[67] Emanuele v Emanuel Investments Pty Ltd (in liq) (51) (while Williams J confined his observations to 'senior counsel' rather than counsel generally, we consider that the observations apply equally to counsel including, in a fused profession such as exists in Western Australia, counsel practising in the amalgam). See also: Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (230 - 232); Emanuele v Emanuel Investments Pty Ltd (in liq) (45 - 48). The decided cases examine the relationship between judge and counsel at a time when most judges were drawn from the independent bar. In today's context - particularly with a fused profession such as exists in Western Australia - there is greater diversity in judicial appointments. An increased proportion of judges are appointed from outside of the independent bar. This does not affect the continuing validity of what we have recorded in the preceding paragraph. A judge is a judge. All judges subscribe to the same judicial oath or affirmation. The fair-minded lay observer does not differentiate between judges based on their background in the legal profession. The fair-minded lay observer expects that all judges will disregard the irrelevant, the immaterial and the prejudicial. The alleged differentiating factor relied on by Dr Reynolds in the present appeal is the nature, duration and intensity of the previous working relationship between the primary judge and Mr Bennett. The primary judge was for a time employed by Mr Bennett (from 1994 to 2001). Her Honour was then in partnership with Mr Bennett (from 2001 to 2005). It may readily be inferred that, at this time, there was a significant personal and professional relationship between the primary judge and Mr Bennett. The relationship was for a significant duration. It self-evidently occurred at a formative stage of her Honour's legal career. We are prepared to accept without deciding, favourably to Dr Reynolds for the purpose of the appeal, that the relationship is likely to have been instructive in her Honour's legal training and development.