Rowe v Bishop (NO. 1)

[2022] SADC 58

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

ROWE v BISHOP (NO. 1)

[2022] SADC 58

Reasons for Decision of his Honour Judge Slattery  

3 March 2022

COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS

The applicants in the proceedings and on this application seek orders that the trial judge should recuse himself for actual and apprehended bias.

Whether there is any basis upon which an application for recusal of the trial judge for actual bias may be made.

Whether there is any basis upon which an application for recusal of the trial judge for apprehended bias may be made.

Held:

1. Each application is dismissed.

2. The applicants shall pay to the respondents their costs of the argument for recusal.

Building Work Contractors Act 1995 (SA) s 28; Judicial Review of Administrative Action and Government Liability, (Lawbook Co, Thomson Reuters, 7th ed, 2022, referred to.

Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71; Michael Wilson and Partners Limited v Nicholls (2011) 244 CLR 427 ; R v Rich [2009] VSC 32 ; R v Magistrates Court at Lilydale; Ex Parte Ciconne Australasian Institute of Judicial Administration Inc, Guide to Judicial Conduct, 3rd ed (2017) at 19-20 [4.3]; Franklin v Minister of Town and Country Planning [1948] AC 87; [1947] 2 All ER 289; Ranger v Great Western Railway Co (1854) 5 HL Cas 72, discussed.

Minister for Immigration v Jia Le Geng (2001) 205 CLR 507 ; Charisteas v Charisteas [2021] HCA 29; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 ; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 ; Smits v Roach (2006) 227 CLR 423; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 ; Isbester v Knox City Council (2015) 255 CLR 135 ; CNY17 (2019) 268 CLR 76; Johnson v Johnson (2000) 201 CLR 488 ; R v Magistrates' Court at Lilydale; Ex parte Ciccone [1973] VR 122 ; S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 ; R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256; R v Molesworth (1898) 23 VLR 582 ; Re Rener (1898) 4 ALR 65; Board of Education v Rice [1911] AC 179; Errington v Minister of Health [1935] 1 KB 249; [1934] All ER Rep 154; R v Birmingham Justice [1970] 3 All ER 945; [1970] 1 WLR 1428; Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475; R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; Mohareb v Kelso (No 2) [2018] NSWCA 246 , considered.

ROWE v BISHOP (NO. 1)
[2022] SADC 58

1. Application by the first and second applicants, Tony Rowe and Skippy Rowe on the third day of trial for the following orders:

   1.That the presiding judge recuse himself from the trial;

   2.That the judge orders a mistrial;

   3.The respondent's pay the applicant's costs;

2. The first and second applicants have decided to appear on their own behalf and do not have representation.  I have kept that fact in mind in reaching my decision on this application.

3. In support of the application, the applicants read an affidavit of Mrs Skippy Rowe, affirmed 2 March 2022.  I will proceed through the grounds of the affidavit and deal with them and announce my decision about them.  The affidavit contains the substantive grounds of the application.  There were limited submissions made in support.

4. Before proceeding to discuss the factual allegations made, it is appropriate first to identify that the applicants have made allegations of actual bias and apprehended bias on my part, in the conduct of these proceedings in this Court.  It is necessary to first identify the applicable principles, to consider the facts and then announce my decision.

5. The principles in relation to proof of actual bias are reasonably well settled: what is required is an assessment of the state of mind of the decision maker.  In Sun v Minister for Immigration and Ethnic Affairs,[1] North J said as follows:

   Actual bias exists where the decision maker has prejudged the case against the applicant or acted with such partisanship or hostility as to show that the decision maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant.

   [1] (1997) 81 FCR 71 at 134.

6. Similar comments were made by the High Court in Michael Wilson and Partners Limited v Nicholls.[2]

   [2] (2011) 244 CLR 427 at [31] per Gummow A-CJ, Hayne, Crennan and Bell JJ.

7. An allegation of actual bias is a very serious allegation to make.  There are particular rules in relation to the proof of an allegation of actual bias.  They are set out by Lasry J in R v Rich,[3] where his Honour said:

   A party asserting actual bias on the part of a decision maker carries a heavy onus; the allegation must be “distinctly made and clearly proved”. It has been said, and I agree, that a finding of bias is a “grave matter” and cannot be made lightly. Apart from corruption, it is hard to think of a more serious allegation that can be made against a judge.

   [3] [2009] VSC 32 at [7]; see also Minister for Immigration v Jia Le Geng (2001) 205 CLR 507 at 531, [69] per Gleeson CJ and Gummow J.

8. The learned authors of Judicial Review of Administrative Action and Government Liability, (Lawbook Co, Thomson Reuters, 7^th ed, 2022) at [10.40] summarised the position as follows:

   [10.40] Claims of actual and apprehended bias require differing standards of evidence. A claim of actual bias requires cogent evidence that the decision-maker was in fact biased.[4] Actual bias will not be made out of suspicions, possibilities or other equivocal evidence. Disagreement with the reasoning or decision of an official cannot provide a basis for actual bias.[5] In the absence of an admission of guilt from the decision-maker, or, more likely, a clear and public statement of bias, this requirement is difficult to satisfy.[6]

   [4]    See R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116 where Dixon CJ, Williams, Webb and Fullagar JJ spoke of a “high probability”.

   [5]    Mohareb v Kelso (No 2) [2018] NSWCA 246 at [15].

   [6]    See, for example, Sun v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 at 551-552; Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 424 at 442-443; South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97]; and Porter v Magill [2002] 2 AC 357 at 489.

9. The applicants have not alleged any basis to ground an assertion that I have in any way prejudged this case against the applicants.  The applicants have not alleged that I have acted with such partisanship or hostility as to show I have made up my mind against them and that I was not open to persuasion in their favour.  In my view, they have not discharged the heavy onus to make an allegation of actual bias distinctly nor have they clearly proved the allegation.  I would dismiss this part of their application of actual bias.

10. I turn then to what appears to be the second basis of an allegation of apprehended bias.

11. In the recent decision of Charisteas v Charisteas,[7] the High Court considered an appeal from the Full Court of the Family Court concerning the conduct of a judge of that court.

    [7] [2021] HCA 29.

12. The court described the facts of the matter and then turned to the question of apprehended bias.

13. At [11]-[12], the High Court held as follows:

    Apprehended bias

    [11] Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established,[8] and they were not in dispute. The apprehension of bias 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 question the judge is required to decide".[9] The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal.[10] Its application requires two steps: first, "it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits";[11] and, second, there must be articulated a "logical connection" between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.[12]

    [12] As five judges of this Court said in Johnson v Johnson,[13] while the fair-minded lay observer "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".

    [8]   Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345 [6]-[8]; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 581-582 [3], 609 [110]; Smits v Roach (2006) 227 CLR 423 at 443-444 [53]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at 437 [31]; Isbester v Knox City Council (2015) 255 CLR 135 at 146 [21]; CNY17 (2019) 268 CLR 76 at 88 [21], 98-99 [57].

    [9]    Ebner (2000) 205 CLR 337 at 344 [6]; Concrete (2006) 229 CLR 577 at 609 [110].

    [10] Ebner (2000) 205 CLR 337 at 343 [3], 344-345 [6]-[7], 348 [22]-[23], 362 [79]; Concrete (2006) 229 CLR 577 at 609-610 [110]-[111].

    [11] Ebner (2000) 205 CLR 337 at 345 [8]; see also 350 [30].

    [12] Ebner (2000) 205 CLR 337 at 345 [8], 350 [30]; Concrete (2006) 229 CLR 577 at 609-610 [110]-[111]; CNY17 (2019) 268 CLR 76 at 88 [21], 98-99 [57].

    [13] (2000) 201 CLR 488 at 493 [13] (footnote omitted), quoted in Concrete (2006) 229 CLR 577 at 609-610 [111]. See also S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at 378-381.

14. On the topic of ordinary judicial practice, the court said at [13] as follows:

    [13] Ordinary judicial practice, or what might be described in this context as the most basic of judicial practice, was relevantly and clearly stated by Gibbs CJ and Mason J in Re JRL; Ex parte CJL9 in 1986 by adopting what was said by McInerney J in R v Magistrates' Court at Lilydale; Ex parte Ciccone in 1972:[14]

    "The sound instinct of the legal profession – judges and practitioners alike – has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined."

    [14] [1973] VR 122 at 127. Now reflected in Australasian Institute of Judicial Administration Inc, Guide to Judicial Conduct, 3rd ed (2017) at 19-20 [4.3].

15. The decision of McInerney J in R v Magistrates Court at Lilydale; Ex Parte Ciconne[15] is also instructive on other aspects of this application.  McInerney J further held as follows:

    In Franklin v Minister of Town and Country Planning, [1948] AC 87; [1947] 2 All ER 289, Lord Thankerton (AC), at p. 103, referred to "the standard of even-handed justice which the law requires from those who occupy judicial office". He added: "The reason for this clearly is that, having to adjudicate between two or more parties, he must come to his adjudication with an even mind, without any inclination or bias towards one side or the other in the dispute. As Lord Cranworth, LC, says in Ranger v Great Western Railway Co (1854) 5 HL Cas 72, at p. 89; [1843-60] All ER Rep 321: 'A judge ought to be, and is supposed to be, indifferent between the parties. He has, or is supposed to have, no bias inducing him to lean to the one side rather than the other. In ordinary cases it is a just ground of exception to a judge that he is not indifferent...'."

    In the present context, therefore, as Lord Thankerton pointed out and in Franklin's Case, supra, the proper significance of bias is to denote a departure from the standard of even-handed justice. A judge must be vigilant to see that he does not depart from the standard of even-handed justice. It is important also that he does not present the appearance of departing from that standard. For even if justice is in fact and in law done, the moral authority of the judgment is impaired if the judgment was given in circumstances which might reasonably give rise, in the minds of reasonable men, to suspicions that justice was not in fact done. If such suspicions arise, public confidence in the administration of justice is shaken. Consequently it has always been regarded as "not merely of some importance, but of fundamental importance, that justice should not only be done but also be manifestly seen to be done"--to quote the well-known words of Lord Hewart, LCJ, in R v Sussex Justices; Ex parte McCarthy, [1924] 1 KB 256, at p. 258; [1923] All ER Rep 233, at p. 234. And to quote another statement of Lord Hewart from the same case: "Nothing is to be done which creates even a suspicion [and I interpolate--'among reasonable people'] that there has been an improper interference with the course of justice."

    Long ago Madden, CJ, pointed out in R v Molesworth (1898) 23 VLR 582 (reported sub. nom. Re Rener (1898) 4 ALR 65, at pp. 66-7), that it is not possible to protect any tribunal from the suspicion of those "people and not by any means a few, who from impetuosity, a weak sense of justice, recklessness or want of technical understanding, attribute every legal decision which they do not like to the bias or personal proclivities of the judge or jury". Such persons may be, as Madden, CJ, recognized, "respectable and fair after their capacity, but not necessarily reasonable persons". What the law therefore is concerned to ensure is that there should not be grounds for a reasonable suspicion that a proper hearing and a proper determination has not been accorded to the parties.

    Certain rules of conduct for judicial officers have, therefore, been evolved over the centuries to ensure firstly that they "act in good faith and listen fairly to both sides" (Board ofEducation v Rice, [1911] AC 179, at p. 182; [1911-13] All ER Rep 36, at p. 38), and secondly that they do not appear to act unfairly, as, for instance, by taking evidence or representations from or hearing the submissions of one party behind the back of the other: see Errington v Minister of Health, [1935] 1 KB 249; [1934] All ER Rep 154; R v Birmingham Justice, [1970] 3 All ER 945; [1970] 1 WLR 1428, at p. 1433G (per Lord Parker, CJ) and at p. 1434 (per James, J). And of course no judicial officer should so act as to give any ground for suspicion that there has been any secret dealing or arrangement between himself and one of the parties.

    The instances I have given are not to be taken as exhaustive. It is impossible to formulate any set number of tests which will be applicable in the infinite variety of circumstances that may exist: see Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, at pp. 503-4; [1964] ALR 517, in the judgment of Kitto J.

    [15] Ibid at pp 126-127.

16. In my conduct of this trial and in my determination of this application, I have observed all of these requirements.

17. Paragraph 3 of Mrs Rowe’s affidavit seeks that I recuse myself from further conduct of the trial and declare a mistrial.  The grounds appear to be set out in the following paragraphs.

18. Paragraph 4 of the affidavit asks me to recuse myself on the basis of expressions of bias and/or apprehended bias.  The first ground is that during the trial, when I was reading through the trial book, I informed the parties that a builder who had been consulted by the applicants and was mentioned by name, was a director of a building company which was building my home.  I needed to reveal that information in the event that the parties had any particular objection or aspect that they wanted to raise with me.  No objection was raised.  In paragraph 5(b) of her affidavit, Mrs Rowe avers that, given that information, she had and continues to have no objection to me continuing to hear this matter, nor does she make any objection to me continuing to hear this action.  As far as I can tell, paragraph 5 provides no basis for the application.

19. Paragraph 6 of her affidavit refers to a document FDN 71.  It is said that FDN 71 was relevant to the case of the applicants because it was marked with the date of 7 February 2022 and contained a detailed outline of the evidence of the first respondent.  FDN 71 is the witness statement of the first respondent, Mr Matthew Bishop (Mr Bishop).  Exhibit R5 is a copy of an amended witness statement of Mr Bishop which is initialled by him. 

20. Paragraph 17 of the original statement averred that in relation to a handwritten sketch which Mr Bishop says was provided to him in November 2012: “I no longer have a copy of that document.”  In Exhibit R5, that sentence has been deleted and it now reads “A copy of that document is at p.002.”  Page 002 is a page within the proposed tender book, Exhibit MFI A1.[16]  It has been referred to by a number of witnesses in evidence and Mrs Rowe has given evidence that she prepared, or she and the co-applicant, her husband, prepared this hand drawn plan.  That factual position also reflects the pleaded case of the applicants.  This document formed the basis of an initial building cost indication given by Mr Bishop to the applicants.  I have used these expressions deliberately because an issue for my determination is whether this building cost indication formed the basis of a fixed price contract between the parties.

    [16] This proposed tender book has become Exhibit A1 and page 002 is to be found in volume 1 of that Exhibit.

21. The change to the witness statement of Mr Bishop is a correction of a minor fact because Exhibit R5 now avers the facts which are obvious on their face.  Mr Bishop must have had a copy of that document to give the initial cost indication and it has been discovered by the applicants; a copy of it is to be found in a tender book prepared by Mr Bishop’s solicitors.

22. Paragraph 23 of Mr Bishop’s original statement avers: 'I then engaged Richard Atkinson Consulting Engineer Services.”[17]  In Exhibit R5, the words 'I then engaged' have been deleted and the words 'Tony Wilson then engaged Richard Atkinson Consulting Engineer Services' have been inserted.  That change is consistent with the other evidence before the court, that Mr Tony Wilson, who was the architectural drafter doing the drawing work for the parties separately engaged the consulting engineer.  These facts are not in contention and they are obviously correct from the documents tendered in evidence before the court.  There is no evidence that, for example, Mr Bishop engaged Mr Atkinson and paid his preliminary accounts.

    [17] FDN 71.

23. These are the only three amendments to the document, FDN 71.  That amended document was admitted to evidence as Exhibit R5 over the objection of the applicants who informed me that they had not had an opportunity to consider the amendments.  Implicit in what the applicants then said, was that they wished to raise some issue about those amendments to FDN 71.  I again reviewed the amendments in light of the applicants’ submissions.

1. No issue of any evidentiary weight or other significance arises as a result of those amendments because none of the amendments affect any particular aspect of the matters for determination by me.  When consideration is given to the content of those amendments, they are not a basis for a civil trial to be adjourned so that further consideration could be given to them.  They are minor, innocuous and are congruent with the otherwise unchallenged oral evidence before me.

2. The applicants then contend in the same affidavit that they placed significant reliance upon the content of the original FDN 71 as part of future cross examination.  However, no indication was given as to why, in particular, any of those amendments forestalled any aspect of that cross-examination.  No particular topic of cross‑examination was identified.

3. It was then submitted that in denying the applicants the opportunity to have their adjournment and be allowed the opportunity to examine these changes, there was a breach of natural justice, and this was inconsistent with proper practice and procedure.  It is also said to be a denial of judicial fairness which I have assumed means that I have not been impartial or that they have been denied procedural fairness.

4. I reject each of those grounds.

5. The amendments were minor.  They were a matter of common sense and were consistent and congruent with the evidence that had been given by all parties in the proceedings.  They did not affect or change any aspect of the issues for my determination in the proceedings.  It was consistent with proper practice and procedure that I allow the matter to proceed and there was no denial of procedural fairness or natural justice as a result.  This submission overlooks the fact that having embarked upon hearing a trial, it is my common law obligation to complete that hearing and then to determine this matter.

6. It is then averred that I accepted into evidence the new FDN 71 and I gave it a new exhibit number 'R5'.  I did so.  It is then said that to give that document a new exhibit number is a miscarriage of justice, but no basis is set out.  I reject these assertions as they are baseless.

7. It is then averred in paragraph 7 of the affidavit that, with respect to the interposition of the new FDN 71, I did not allow the applicants to refer to the old FDN 71 to cross-examine the witness, which is said to be an unlawful interference with rights to cross-examine a witness in any robust manner.

8. The view that I formed was that there was no utility in there being any cross-examination about any aspect to do with the amendments of the documents because, plainly enough, those amendments were consistent with and congruent with the pleadings and the evidence that I had already heard in the trial from the applicants.  I reject any suggestion that a fetter was placed upon the breadth of their right to cross examine Mr Bishop; that is not the case even though there was no utility in so doing on their own case.

9. It is then averred in paragraph 8 that for me to allow the introduction of Exhibit R5, midway through the trial, without any notice and without any prior filing of the new FDN 71, was a gross miscarriage of justice.  For the reasons that I have already discussed, that assertion has no weight and no basis and need not be considered further by me. Exhibit R5 is the amended and corrected form of FDN 71.

10. It is then averred in paragraph 9 that my insistence that I only refer to the new version of FDN 71 and not use the old version was a further miscarriage of justice.  It was alleged that on some unstated basis this evidenced some form of a distinct and unhealthy bias in favour of the respondent's case.  No basis was put forward for that assertion.  As I have said, the amendments to FDN 71 were so minor as to be inconsequential.  Those amendments were also consistent with the pleadings and the evidence in the matter.  The use of Exhibit R5 cannot, on that basis, or on any basis, disclose any form of bias.

11. A second ground is then raised.  It relates to questions being asked by counsel for the respondents about the existence of a written form of a building contract.  This was a general question which was not directed to any particular form of writing.  The applicants plead and contend that there was no written contract; the respondents contend in their pleadings that the form of a written contract is to be found in the combination of a number of pieces of written material.  I considered that, in light of the evidence, if this question was asked and was to be answered in the negative, there was a real prospect of self-incrimination.  Mr Bishop needed to be informed that he may claim a privilege against self-incrimination.

12. Section 28 of the Building Work Contractors Act requires that a domestic building work contract must be in writing. It must set out in full all the contractual terms and it must comply with any requirements of the regulations and other requirements, all of which are set out in s 28(1)(a) to (g) of that Act. Subsection 28(2) provides as follows:

    (2) If any of the requirements of sub-s.(1) is not complied with, the building work contractor is guilty of an offence.  Maximum penalty $5,000.

13. It follows, therefore, that in light of all of the evidence before the court, the question put in relation to whether or not there was a written building contract for s 28 of the Act and any answer thereto, potentially, gave rise to the possibility of an admission that an offence had been committed by the respondents. If Mr Bishop answered the question by saying that there was not a contract in writing, then he, potentially, exposed himself to prosecution.

14. My duty, as a judicial officer, is to ensure that, as with any witness faced with that situation, he understood his rights to claim the privilege against self-incrimination.  I informed Mr Bishop of his rights and he answered by informing me that he did not wish to answer the question on the grounds that it may incriminate him.  That was his right.

15. I therefore first informed counsel that if Mr Bishop would, by answer to that question, incriminate himself, I needed to give a warning.  I informed the witness that an answer to that question may incriminate him and he may refuse to answer the question on that ground.  In the end, the question was withdrawn.  The issue arose again later in the evidence and Mr Bishop refused to answer another question on the grounds that it may incriminate him.

16. In paragraph 16 of her affidavit, Mrs Rowe avers that this amounted to unlawful coaching of counsel.  That is both incorrect and it is a misunderstanding of the role of a judicial officer in that situation.  I was informing the witness of his right to refuse to answer a question on the grounds that it may incriminate him; that is part of my function as a judicial officer.

17. In paragraph 17 of her affidavit, Mrs Rowe avers that a crucial matter before the court was whether or not there had been a contract between the applicants and the respondents.  That is a matter before the court; it is a matter upon which I am required to make a decision.  However, that is not a reason to contend that I would not properly administer justice in this Court.  It is my duty to ensure that a person who may incriminate himself by an answer is informed that he had the right to refuse to answer that question on the ground that it may incriminate him.  It is not an interference with a witness; it is the exercise of my judicial function.

18. It is then averred in paragraph 18 of the affidavit that what I had done in exercising my judicial function was to announce a bias, on my part, and a miscarriage of justice and I ought to recuse myself.  No basis is put forward.  The assertion is wrong.  There has been no miscarriage of justice and there has been no basis upon which I should recuse myself.

19. A third aspect is then raised.  It refers to a drawing which is the document at p.002 of Exhibit MFI A1.  It is the drawing of a proposed extension to the house of the applicants.  It is not in contest that this drawing was given by the applicants to Mr Bishop at a preliminary meeting and following which certain things were done.  No proposition has ever been put that it was drawn by Mr Matthew Bishop.  Mrs Rowe gave evidence that she or she and the co-applicant prepared the drawing.  The drawing was produced by the applicants on their evidence, and they say that they gave it to Mr Bishop and certain things followed.

20. The proposition was then put to Mr Bishop that he was the person who produced the drawing.  That is inconsistent with the pleadings of the applicants and the evidence of Mrs Rowe who said that she produced the drawing.  She said she gave it to the respondent Mr Bishop and whether or not he knew who produced the drawing is therefore not to the point.  The issue that is relevant to the factual and legal dispute between the parties is that the drawing was given by the applicants to the respondent.  I disallowed questions on that topic that involved putting propositions to Mr Bishop that were inconsistent with the applicants’ own case as well as their pleaded case.

21. Mrs Rowe suggested that I informed her that she had produced the drawing, herself.  Her evidence is that she produced the drawing to Mr Bishop.[18]  It is not suggested in her evidence, or in the evidence of Mr Tony Rowe, that Mr Matthew Bishop created the drawing or produced it to them.  The drawing was done and it was given to Mr Matthew Bishop and certain things followed.  Therefore, the identity of who produced the drawing is a matter entirely within the knowledge of the applicants and not within the knowledge of Mr Bishop.

    [18] T.31.5-T.31.22

22. Mr Bishop has also given unchallenged evidence that there are two or three hand‑written entries on the drawing; one disclosing a six metre eave and the other disclosing a four metre eave and that he did not write the figures ‘4 m’ and ‘6 m’ on the document.  There is another entry on the document, it reads: “114 m².”  He said in his evidence that this was his handwriting.  These matters were all explored in examination‑in‑chief and cross‑examination.  Therefore, there has been no disallowance of any opportunity to ask any questions about the hand drawing and I reject this ground on that basis.

23. There is then a fourth argument.  In paragraph 23 of her affidavit, Mrs Rowe avers that, at the end of the day, it became very much clearer to her, that Mr Bullock had previously been my associate.  Mr Bullock has never been my judge's associate.  I did not need to disclose that as it is not true.  For a short period of time Mr Bullock was a member of my chambers.  I left those chambers 10 years ago following my appointment to this Court.  These facts are not a basis for me to recuse myself.  Mrs Rowe then avers that this now explains how and why I am being so protective and accommodating of Mr Bullock in some obvious (but unstated) areas in the trial.  She does not provide any basis for making this assertion and I am not required to canvas hypotheticals.

24. The affidavit of Mrs Rowe did not aver any basis upon which I should declare a mistrial; I would refuse so to do.

25. I find that there is no basis for the applications made by Mr and Mrs Rowe.  I dismiss the application. The applicants shall pay to the respondents their costs of the argument for recusal.