Rose v South Australian Housing Trust

[2016] SASCFC 132

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Application)

ROSE v SOUTH AUSTRALIAN HOUSING TRUST

[2016] SASCFC 132

Reasons for Decision of The Full Court (ex tempore)

(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Justice Stanley)

5 December 2016

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS - GENERAL PRINCIPLES

PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL

Application to set aside judgment of the Full Court pursuant to r 242 of the Supreme Court Civil Rules 2006 (SA) on the ground of bias.  Where applicant applied for permission to appeal to the Full Court against decision of South Australian Civil and Administrative Tribunal.  Where Full Court, including the Chief Justice, dismissed that application in private.  Where Chief Justice represented the applicant in 1989.

Held per the Court (dismissing the application): there could be no reasonable apprehension of bias in the circumstances.

Supreme Court Civil Rules 2006 (SA) r 242, referred to.
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Re Polites, Ex Parte Hoyts Corp Pty Ltd (1991) 173 CLR 78, considered.

ROSE v SOUTH AUSTRALIAN HOUSING TRUST
[2016] SASCFC 132

Full Court:   Vanstone, Kelly and Stanley JJ

1. THE COURT:      Mr Rose applies to set aside a decision of the Full Court, made on 30 September 2016.  The background to the application is as follows.

2. On 19 July 2016, a member of the South Australian Civil and Administrative Tribunal ordered that the tenancy agreement between the applicant and the respondent be terminated.  The applicant applied for an internal review of that decision but, on 24 August 2016, the President of the Tribunal upheld the decision.  The applicant applied to the Full Court for permission to appeal against that decision.  Pursuant to Supreme Court Civil Rules 2006 (SA) that application was considered in private, by the Full Court comprising Kourakis CJ, Nicholson and Doyle JJ.  On 30 September 2016, the Court refused permission to appeal.  It is very unlikely that the applicant would have known of the identity of the Justices making up the Full Court until the published reasons were sent to him. 

3. The applicant now applies pursuant to r 242 to set aside the decision of the Full Court on the ground of ‘bias’, claiming that a ‘conflict of interest’ existed because the Chief Justice ‘represented the appellant as a lawyer at Magill Youth Training Centre in approximately 1989’.

4. Where a question arises as to the independence or impartiality of a judge, the governing principle is that 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 questions the judge is required to decide:  Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. That a judge has previously appeared as counsel either for or against a party to proceedings in earlier, unrelated proceedings, will not usually amount to apprehended bias: Re Polites, Ex Parte Hoyts Corp Pty Ltd (1991) 173 CLR 78.

5. The applicant asserts from the bar table that in about 1989, the Chief Justice, then a young practitioner, represented him in the Children’s Court in relation to unspecified charges and obtained a grant of bail for him.  The applicant asserts that the Chief Justice then appeared for him on a couple of additional occasions in relation to the same charges, before the applicant absconded.  That brought an end to the contact between the applicant and the Chief Justice.

6. In our view, there could be no reasonable apprehension of bias in the circumstances outlined by the applicant.  Even if the Chief Justice recalled acting for Mr Rose in 1989, nothing about the facts set out informally by Mr Rose would have justified his Honour recusing himself.

7. Mr Rose also seeks a continuation of a stay of the orders made by the Tribunal.  It is not necessary to further consider that application.  Last Friday, 2 December 2016, the tenancy agreement ran its course.  There is now no contractual agreement between Mr Rose and the South Australian Housing Trust. Therefore, any further order staying the orders previously made would have no utility.

8. In those circumstances, the Court makes these orders:

   1.The application FDN12 to set aside the judgment of the Full Court is dismissed.

   2.The stay of paragraph 3 of Parker J’s orders of 24 August 2016 granting vacant possession to the respondent on 2 September 2016 is discharged.