Tower v Jayco Corporation Pty Ltd (No 2) (Ruling)
[2021] VCC 35
•5 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-19-06256
| EMMANUEL TOWER | Plaintiff |
| v | |
| JAYCO CORPORATION PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 November, 25 November, 9 December 2020 and 21 January 2021 | |
DATE OF RULING: | 5 February 2021 | |
CASE MAY BE CITED AS: | Tower v Jayco Corporation Pty Ltd (No 2) (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 35 | |
RULING
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Subject: APPLICATION FOR DISQUALIFICATION
Catchwords: Actual bias – apprehended bias
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Learmont v SAS Trustee Corporation [2020] NSWDC 595; Livesey v New South Wales Bar Association (1983) 151 CLR 288; Dickason v Edwards (1910) 10 CLR 243; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms L Burke with Mr M Mayek (20 and 25 November 2020 and 9 December 2020) | Mayek Legal |
| The Plaintiff appeared in person (21 January 2021) | ||
| For the Defendant | Mr R Kumar | Russell Kennedy |
HIS HONOUR:
1 This is a ruling in respect of the plaintiff’s application that I disqualify myself from further hearing this matter.[1] The plaintiff, Mr Tower, is now self-represented and brings this application on grounds which he first expressed in an email to the Court on 22 December 2020. That email reads, in part:
“Hello judge Arushan Pillay and associates I would like from your administration to change judge (Arushan Pillay) from managing my case for the following reasons . 1-The judge Arushan Pillay accused me of having mental incapacity in other word being (crazy) to represent my self base on what barrister (Lauren Burke ) told him. 2-I never met or spoken to the barrister Lauren Burke before untill 20/11/2020 where she asked 2 questions only and I answered her in 2 or 3 minutes. 4- on 9/12/2020 Judge Arushan Pillay has adjourned the direction hearing with unreasonable justification(misconduct) 5-I have asked judge Arushan Pillay about the compensation settlement money after I have told him settlement figure but he said he doesn't b know the compensation figure . 6- I have emailed barrister (Lauren Burke) about the her statement that she has given to judge (Arushan Pillay) but she said she have nothing to do with that but let me go and ask lawyer (Maker Mayek ). 7- I have given a certified latter from my practitioner Doctor (Alicia Utberg) to prove that iam feet mentally to proceed with the self representative . There for I would like to ask for another judge to manage my case.”
(sic)
[1]I use the term “disqualification” in preference to the term “recusal” which is often used. See Learmont v SAS Trustee Corporation [2020] NSWDC 595 per Neilson DCJ
2 Before dealing with the application, it is necessary to set out some of the background to the hearings which were conducted in November and December last year.
Background material
3 Mr Tower was born in Sudan on 3 January 1985. He came to Australia when he was nineteen years old. In about 2011, he began work with the defendant fitting out caravans. He alleged that he sustained injury throughout the course of his employment and particularly on 8 September 2014. That injury was said to be an injury to the lower back which occurred while lifting a refrigerator. Mr Tower then engaged solicitors Maurice Blackburn to assist him with a WorkCover claim. By application pursuant to subparagraphs (a) and (c), Mr Tower brought application for a serious injury certificate. That was made on 18 December 2017 for injuries to the lumbar spine for “pain syndrome, anxiety and depression”. Mr Tower’s serious injury application was rejected by the Victorian WorkCover Authority on 12 April 2018. An Originating Motion was filed on 1 May 2018. On 28 February 2019 the Court ordered that medical questions be referred to the Medical Panel for its opinion pursuant to subparagraph 274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). On 6 July 2019, the Medical Panel made its determination. The details of that are irrelevant for the purposes of this application. On 22 August 2019, the defendant offered a Serious Injury Certificate for pain and suffering damages only for the injury alleged to have been sustained during the course of Mr Tower’s employment with the defendant on 8 September 2014. That offer was accepted and on 5 September 2019 the Originating Motion proceeding was dismissed by consent with costs orders pursuant to the WorkCover (Litigated Claims) Legal Costs Order 2016. A subsection 12 conference was then held on 30 September 2019. What then transpired has given rise to the dispute before this Court. It is necessary to set out some of that detail. The defendant’s last offer to Mr Tower was $100,000 plus costs, plus keep. The plaintiff’s last offer was $160,000 plus costs, plus keep. To that point the parties were on similar grounds on the exchange of offers. Consequently, on 31 October 2019, the defendant made a statutory offer of $100,000 as a net amount after the reduction required by the Act. On 12 November 2019, Mr Tower made a statutory counteroffer of $400,000. However, on 12 November 2020, Mr Tower’s former solicitors made an offer to the defendant of $135,000 plus keep, plus costs.
4 On 18 December the defendant’s solicitors provided an offer in the following terms: “I am instructed to make an offer of $80,000 plus keep to resolve this matter”. On 19 December 2020, Mr Tower’s former solicitors, Maurice Blackburn, emailed the defendant’s solicitors in the following terms:
“I confirm that I have obtained my client’s instructions to accept the offer of $80,000. I would be grateful if you could please send me a release before 2.30pm today if possible.”
5 Within minutes, the defendant’s solicitor emailed Mr Tower’s former solicitor with a release. The very next day, Mr Tower’s former solicitor filed a Writ with the County Court and paid the filing fee. The reason for that became apparent when, on 6 January 2020, Mr Tower’s former solicitor emailed the defendant stating:
“I’ve just left you a voicemail about this matter. Mr Tower is refusing to sign the release provided. To protect his interests before the Christmas break, we issued a Writ. We are now ceasing to act for Mr Tower. If you have any questions please feel free to give me a call.”
6 Mr Tower’s former solicitor then filed a Solicitor Ceasing to Act form.
7 Notwithstanding that turn of events, the defendant’s solicitor considered the matter had resolved and on 31 January 2020 couriered a letter to Mr Tower with a cheque for the settlement amount, a release and a return envelope. The defendant’s solicitor then filed a Notice of Appearance.
8 Mr Tower drafted a Statement of Claim by himself and filed it with the Court on 10 May 2020. In response, the defendant filed its Defence on 1 July 2020. Particularly, at paragraph [10], the defendant pleaded that Mr Tower’s claim had been discharged by accord and satisfaction. They specifically noted at paragraph [10](b) that there had been acceptance by Mr Tower, through his former solicitors Maurice Blackburn, in the email sent on 19 December 2019 as set out above.
9 After the Defence was filed, Mr Tower obtained new representation through Mayek Legal, who then filed a reply on 18 September 2020. Specifically, the reply pleads that he denied paragraph 10 of the Defence and disputed that there had been agreement for accord and satisfaction to resolve the case by reason of the email of 19 December 2019.
10 It was agreed between the parties that the dispute over whether or not there had been agreement reached by reason of the email of 19 December 2019 should be heard as a preliminary matter. Both parties filed submissions as to whether there had been an agreement. The defendant’s Outline of Submissions is dated 31 July 2020 and Mr Tower’s submissions were filed on 9 September 2020.
11 This was the dispute that came on for hearing before me on 20 November 2020.
The Court hearings
20 November 2020
12 The matter was listed for a one day hearing. Ms Burke of Counsel appeared with Mr Mayek for Mr Tower. Mr Kumar of Counsel appeared with Mr Donohoe for the defendant. At the outset of the hearing, the parties indicated that they would like some time for discussions and in particular to discuss the potential for a judicial mediation. I granted such time. When the matter was called on again just after lunch, Ms Burke sought an adjournment. She said: “the reason for the adjournment is that I'm concerned about my client's ability to give instructions”.[2] Mr Kumar had only been given notice of the adjournment application and the basis for it minutes before it was made. He opposed the application and cited the fact that Mr Tower had recently sworn an affidavit indicating capacity and further that his legal representatives did not doubt that capacity (the affidavit did not go to capacity, the fact that it was made indicates such). I then made these comments in the course of granting the adjournment:
“Mr Kumar, I hear exactly what you say, and I don't have all the correspondence, but I'm faced with a situation where I have counsel who says to me that she's formed the view that there is a concern about the ability for the plaintiff to give instructions. Now, one, I have that representation of counsel. I have no real reason to look behind it. But, two, that person, the plaintiff, is going to be called to give evidence. So how could I allow it to proceed in circumstances where potentially we might have someone in the witness box giving evidence who is not capable?”[3]
[2]Transcript (“T”) 11, Line (“L”) 7-9
[3]T12, L20-30
13 Further, I stated:
“I feel that I'm only in one position, and that is the position that I'll have to grant the adjournment, because, having counsel indicate to me her concerns about capacity raises such significant doubts in my mind as to whether the matter could go on today with the plaintiff even giving limited evidence or not, but more importantly her ability to get instructions during the running of the matter, because there are a number of factual disputes that she would potentially need to seek advice about.”[4]
[4]T13, L30-T14, L7
14 I adjourned the matter for three weeks and noted that at the resumption of the case the parties would need to deal with the issue of whether Mr Tower had capacity to continue.[5]
[5]T16, L12-14
15 On 25 November 2020, the matter returned before me. This was a short directions hearing. At that time, Mr Tower’s lawyer, Mr Mayek, indicated that he was filing a Notice of Solicitor Ceasing to Act. No issue as to capacity was discussed and the matter was put off for two weeks for the filing of the appropriate material by Mr Tower’s solicitor. Mr Tower appeared at this directions hearing and spoke directly to me. At the twenty-two minute mark of this hearing, Mr Mayek confirmed that he was intending, if he had remained on the record, to obtain material from a doctor as to the plaintiff’s capacity. On 9 December 2020, the matter returned before me for a short directions hearing.
9 December 2020
16 At the outset of that hearing, I informed Mr Tower directly that as his counsel and lawyer had raised issues as to his capacity, that was an issue which had an impact on the future conduct of his case and was a matter which needed to be resolved. I informed him that one way this could be resolved was by a short report from his treating doctor or alternatively from a medico-legal specialist. To summarise, Mr Tower was adamant that he would not obtain any such reports and considered himself to be mentally capable of acting on his own behalf. The matter was then adjourned to 21 January 2021. Subsequently, however, Mr Tower produced a report from his treating doctor dated 15 December 2020. That report is from Dr Alycia Utberg. It states:
“This is to certify that I have been treating Emmanuel Tower as his GP since 2014. In that time he has required treatment for depression (partly due to the effects of chronic back pain).
Emmanuel’s depression is currently well controlled with appropriate medication. He has never shown any signs of thought disorder, or psychotic symptoms such as hallucinations, and his though processes are normal for someone with his educational background”.
17 Dr Utberg noted that Mr Tower had been on both Mirtazapine and Zoloft as at December 2020.
18 Being presented with that report, I ruled on 21 January 2021 that Mr Tower had capacity to act on his own behalf and participate in the proceedings normally.
21 January 2020
19 I confirmed with Mr Tower that he wished to press his application that his matter be heard by another judge and that I disqualify myself.
20 I have assumed this application is made on the widest possible basis, given that Mr Tower is self-represented. That is, that I should disqualify myself because of actual bias or that of apprehended bias. Alternatively, I also have considered whether both actual and apprehended bias could be made out.
Legal principles
Actual bias
21 The test for bias is broad. It means that I should not sit in this case if, in all the circumstances, one of the parties or the public might entertain a reasonable apprehension that I would not bring an impartial or unprejudiced mind to the resolution of the questions involved in it.[6] Actual bias occurs through interest, relationship, friendship or enmity, but has at its root an element of predetermination in the judging of the case.[7] In this case, I apprehend Mr Tower’s application to be that I have predetermined his case on one of two grounds. Firstly, that I considered him “crazy” and therefore hold enmity toward him or secondly that by my acceptance of the adjournment application, I consider him “crazy” and therefore have determined not to accept his evidence or submissions. This is particularly important where, as in this case, his evidence about whether there was an agreement reached on 19 December 2019, is critical.
[6]Livesey v New South Wales Bar Association (1983) 151 CLR 288 at [293]
[7]Isaacs J in Dickason v Edwards (1910) 10 CLR 243 at [260]
Apprehended Bias
22 The test of apprehended bias is whether a lay observer would reasonably apprehend that I would not bring an impartial or unprejudiced mind to the issues in dispute.[8] Here, I apprehend Mr Tower’s submission to be that I proceeded to grant the adjournment on the basis that I had found he was “crazy” and am unable to bring an impartial and unprejudiced mind when considering his evidence or submissions.
[8]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Application of principles
23 I would reject both grounds pressed by Mr Tower in the application. The first reason is that at no stage did I make the judgement that Mr Tower was incapable or had no proper capacity in this case, either as a witness or a self-represented party. As can be seen from the transcript references surrounding the appearance on 20 November 2020, once counsel had raised the issue of capacity, it was a matter that needed to be resolved. I did not decide it one way or another. In fact, though the defendant pointed to material indicating that there was capacity, I did not have that material and did not seek it in order to make a judgement. Similarly, I indicated to the plaintiff that there was not material before me on which I could make such a determination. It was an issue which I identified which needed to be dealt with in due course. At the time of the second hearing on 25 November 2020, the issue of capacity was not touched upon because Mr Tower’s lawyers were in the process of ceasing to act. At the third hearing on 9 December, I made it clear that the issue was not resolved at all and that one way of resolving it was to obtain a treating doctor’s report. Other options for dealing with the issue were also raised with Mr Tower and the defendant. All these matters indicate that there was no determination made by me as to Mr Tower’s capacity. There is no evidence, I find, on which to base the actual bias argument. Similarly, no fair-minded lay observer could consider that I had brought a partial and prejudiced mind to the issue given that I continued to express uncertainty about the capacity issue and raised that uncertainty with Mr Tower and the defendant on 9 December 2020. I then suggested a number of ways in which it could be resolved. A fair reading of the events of 9 December 2020 does not lead to a reasonable apprehension that I was not acting fairly. Rather, once the issue had been raised by counsel on 20 November 2020, that was an issue which needed to be resolved during the course of the litigation. I took steps to resolve that issue and only did so after the receipt of medical evidence from Dr Utberg.
24 Given the above, I find that there is no basis on which I can disqualify myself from the hearing of this matter. I will dismiss the plaintiff’s application. I also indicated to parties I would reserve on the issue of costs associated with the hearing on 20 November 2020 and 25 November 2020. The defendant’s costs of both those days were reserved for determination at a later time. During the hearing on 21 January 2021, Mr Tower indicated that he had issued proceedings against both Mr Mayek and Ms Burke. In those circumstances, it was his argument that they should pay any costs associated with the adjournment. Given the implication of these two parties in any potential dispute as to costs, I propose to reserve the defendant’s costs of 20 November and 25 November 2020 until the conclusion of the proceedings. This is to ensure the substantive proceeding proceeds in a timely fashion and to also not allow a splintering of proceedings if, for example, Mr Mayek and Ms Burke both sought legal representation and a separate and significant cost dispute then arose.
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