Reynolds v Rayney

Case [2023] WASCA 144


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

In Reynolds v Rayney, the appellant, Dr. Reynolds, challenged the decision of the primary judge, Rayney, arguing that the judge had an inherent bias due to her prior professional relationship with the respondent’s counsel, Mr. Bennett. The dispute revolved around the impartiality of the primary judge in a legal case where she had previously worked with the opposing counsel. The matter was heard in the Supreme Court of Western Australia.

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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Decision

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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.