United Petroleum Australia Pty Ltd v Herbert Smith Freehills (No 3)
[2018] VSC 587
•1 OCTOBER 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
S ECI 2017 00202
| UNITED PETROLEUM AUSTRALIA PTY LTD & ORS | Plaintiffs |
| v | |
| HERBERT SMITH FREEHILLS (A FIRM) & ANOR | Defendants |
S CI 2017 00237
| HERBERT SMITH FREEHILLS (A FIRM) | Plaintiff |
| v | |
| UNITED PETROLEUM AUSTRALIA PTY LTD & ANOR | Defendants |
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JUDGE: | ELLIOTT J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 1 OCTOBER 2018 |
DATE OF RULING: | 1 OCTOBER 2018 |
DATE OF REASONS: | 8 OCTOBER 2018 |
CASE MAY BE CITED AS: | UNITED PETROLEUM AUSTRALIA PTY LTD V HERBERT SMITH FREEHILLS (No 3) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 587 |
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COURTS AND JUDGES – Application for disqualification for apprehended bias – Trial completed in 2 proceedings – Trial orders made – Completed applications for indemnity costs in both proceedings – Costs ruling given and orders made, except with respect to the costs of the indemnity costs applications – Application to disqualify made without notice immediately before the hearing on the costs of the indemnity costs applications – Whether findings in costs ruling give rise to a reasonable apprehension of bias – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| In proceeding S ECI 2017 00202 | ||
| For the Plaintiffs | Mr M Wyles QC | Gilbert + Tobin |
| For the 1st Defendant | Mr D Fahey | Clyde & Co |
| For the 2nd Defendant | Ms Hunt (Solicitor) | Wotton Kearney |
| In proceeding S CI 2017 00237 | ||
| For the Plaintiff | Mr D Fahey | Herbert Smith Freehills |
| For the Defendants | Mr M Wyles QC | Gilbert + Tobin |
HIS HONOUR:
A. Introduction
For the second time in this litigation, the United Parties[1] have applied to have a judge of the commercial court recuse himself on the grounds of apprehended bias. Last year, an application was made for the previous trial judge, Judd J, to disqualify himself. That application was withdrawn during the course of argument before Judd J.[2] The current recusal application has been made, somewhat unusually, on the cusp of the trial division becoming functus officio in the 2 proceedings in question.
[1]The United Parties have been defined elsewhere to refer to United Petroleum Australia Pty Ltd, United Petroleum Pty Ltd, United Petroleum Holdings Pty Ltd, Avi Silver, Eddie Hirsch, Kinlee Pty Ltd and Apson Pty Ltd.
[2]In awarding costs in favour of Freehills on that application, Judd J stated the recusal application “was misconceived and ultimately withdrawn”: United Petroleum Australia Pty Ltd v Herbert Smith Freehills (unreported, Supreme Court of Victoria, 1 November 2017, Judd J), [11]. For completeness, at the time of the first recusal application, Judd J had already adjourned the initial trial and the proceedings had been reallocated to my docket.
Upon hearing submissions, I stated that the recusal application would be dismissed and reasons would be published in due course. These are those reasons.
B. Background
On 26 June 2018, reasons were delivered (“the Principal Judgment”) in 2 proceedings:[3] a proceeding (“the Fees Proceeding”) commenced by Herbert Smith Freehills (“Freehills”) seeking to recover its outstanding fees; and a proceeding (“the United Proceeding”) commenced by United Petroleum Australia Pty Ltd and others,[4] by which the United Parties sought damages and other relief against the first defendant, Freehills, and the second defendant, Martin Hudson (“Hudson”), the former chairman and non-executive director of United Petroleum Holdings Pty Ltd.[5]
[3]United Petroleum Australia Pty Ltd v Herbert Smith Freehills (2018) 128 ACSR 324.
[4]Ultimately, all of the United Parties became the plaintiffs in the United Proceeding.
[5]The relief against Hudson was sought by United Petroleum Holdings Pty Ltd.
Upon delivery of the Principal Judgment, costs were awarded on the standard basis in favour of Freehills in the Fees Proceeding, and Freehills and Hudson in the United Proceeding. However, those orders were stayed for 14 days, and subject to liberty to apply in the event that any application was made for a special costs order. The orders for costs on the standard basis were made without hearing from the parties and without any adjudication beyond simply following the outcome of the proceedings. The orders were made on the basis any party could revisit the orders after considering the lengthy reasons of the Principal Judgment and any other matters relevant to the question of costs in light of those reasons.
Within the stipulated 14 days, applications for indemnity costs were made by Hudson in the United Proceeding and by Freehills in both proceedings.
On 25 September 2018, reasons were delivered with respect to the applications for indemnity costs made by Hudson and Freehills (“the Costs Ruling”).[6] Hudson was entirely successful with respect to his application for indemnity costs, whereas Freehills had partial success in obtaining the indemnity costs it sought in both the Fees Proceeding and the United Proceeding.
[6]United Petroleum Australia Pty Ltd v Herbert Smith Freehills (No 2) [2018] VSC 501.
On 25 September 2018, after the parties had had the opportunity to read the Costs Ruling,[7] the United Parties’ counsel agreed that it was appropriate that substantive orders be made on that day. However, an application was made to defer argument with respect to the costs of the indemnity costs applications because the United Parties’ senior counsel was not available at the time. In circumstances where notice of delivery of the Costs Ruling had only been given the day before, and there was no opposition to this course, the application to adjourn the hearing on the question of costs of the indemnity costs applications to 9.30 am on 1 October 2018 was acceded to.
[7]The Costs Ruling was delivered at 9.45 am. The hearing was adjourned to 4.30 pm for the purpose of finalising the orders arising from the Costs Ruling.
Accordingly, on 25 September 2018, orders were made in the Fees Proceeding as follows:
(1)Up until 11:00 am on 20 June 2017, the defendants[8] pay the plaintiff’s costs of and incidental to the proceeding, including reserved costs, to be taxed on the standard basis.
[8]The defendants to the Fees Proceeding were United Petroleum Australia Pty Ltd and United Petroleum Pty Ltd.
(2)From immediately after 11:00 am on 20 June 2017, the defendants pay the plaintiff’s costs of and incidental to the proceeding, including reserved costs, to be taxed on the indemnity basis (as that term is used in rule 63.30.1 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic)).
(3)The costs of preparing, swearing and filing the affidavit of Alan James Mitchell sworn on 9 July 2018 are not to be included in the taxable costs of the proceeding.
(4)Costs of the plaintiff’s application made by summons filed 9 July 2018 (“the Application”) are reserved.
(5)The hearing in respect of the costs of the Application is adjourned to 9:30 am on 1 October 2018.
And in the United Proceeding as follows:
(1)Subject to paragraph 2, the plaintiffs pay the first defendant’s costs of and incidental to the proceeding, including reserved costs, to be taxed on the indemnity basis (as that term is used in rule 63.30.1 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic)) (“the Indemnity Basis”).
(2)The costs payable to the first defendant include the costs incurred after 19 January 2018 for services provided by the first defendant itself, to be taxed on the Indemnity Basis, but only insofar as those costs are referable to the first defendant providing professional services that would otherwise have been required to have been provided by another solicitor if the services had not been performed by the first defendant.
(3)The plaintiffs pay the second defendant’s costs of and incidental to the proceeding, including reserved costs, and the second defendant’s costs of the application by the plaintiffs to join him as a second defendant, to be taxed on the Indemnity Basis.
(4)The costs of preparing, swearing and filing the affidavit of Alan James Mitchell sworn on 9 July 2018 and the affidavit of Darryl Stephen Smith sworn on 9 July 2018 are not to be included in the taxable costs of the proceeding.
(5)Costs of the first and second defendant’s applications made by summonses filed 9 July 2018 and 6 July 2018 respectively (“the Applications”) are reserved.
(6)The hearing in respect of the costs of the Applications is adjourned to 9:30 am on 1 October 2018.
C. The application
On 1 October 2018, before any argument with respect to the costs of the indemnity costs applications was heard, senior counsel for the United Parties informed the court that he had an application to make for me to recuse myself on the grounds of a reasonable apprehension of bias. It was submitted that a lay observer might reasonably apprehend that I might not bring an impartial mind to the task at hand. In essence, the United Parties invited me to refer the only remaining issue in the case, namely the question of costs of the indemnity costs applications, to another judge. No notice of this application had been given to the court, or to Freehills or Hudson.
D. General principles
In making the recusal application, the United Parties did not refer to any authority. It is sufficient for present purposes to refer to AJH Lawyers Pty Ltd v Careri, in which the following was said:[9]
[9](2011) 34 VR 236, 241-243 [17]-[25] (Warren CJ, Hansen JA and Almond AJA).
The relevant principles governing the issue of apprehended bias are well settled. Essentially, there are eight relevant principles.
…
Secondly, as noted in Antoun,[10] judges should not “too readily accept recusal because a party has demanded it”.[11] Further, as held in Ebner,[12] “[j]udges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. ... If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case”.[13] That being said, the principle that a judge should not disqualify him or herself too readily is not a “blanket that smothers the effect of disqualification where it has already arisen”.[14]
Thirdly, the test for a reasonable apprehension of bias was stated in Johnson[15] as being “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”.[16] The word “might” in the phrase “might not bring an impartial and unprejudiced mind” was clarified in Ebner as referring to “possibility (real and not remote), not probability”.[17] On the basis of Ebner, where, as in this case, “the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge”.[18]
Fourthly, the apprehension in question is apprehension that the judge will not decide the case impartially, not merely an apprehension that he or she “will decide the case adversely to one party”.[19]
Fifthly, the application of the test involves two steps. The first step is “the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits”.[20] The second step is the “articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”.[21] Contrary to AJH Lawyers’ submission,[22] the two-step approach is applicable to cases of apprehended bias on the ground of prejudgment.[23] In such a case, the matter to be identified in the first step is the conduct of the judge said to give rise to apprehension of bias. And the logical connection that needs to be articulated in the second step is the logical connection between the conduct of the judge and the feared prejudgment of a question the judge is required to decide.[24]
Sixthly, “the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer”.[25] The fictional 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”.[26] Yet the fictional observer is taken to understand the dynamics of modern judicial practice. Modern judges “are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them”.[27] “[T]he expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias”.[28]
Seventhly, “[a] line is drawn between forthright and robust indications of a trial judge's tentative views on a point of importance in a trial and an impermissible indication of prejudgment that has the effect of disqualifying the judge from further conduct of the proceedings”.[29] A key factor determining whether that line has been crossed is the extent to which the views expressed by the judge appear to be final rather than merely tentative.[30]
Finally, [“j]udges do not have to devote unlimited time to listening to unmeritorious arguments. Sometimes, a brief hearing will suffice”.[31] That having been said, when a party makes an application, the judge must normally give the party some reasonable opportunity to make submissions in support of that application.[32] This is so even if the judge’s preliminary view is that the application will be unmeritorious.[33] If the judge refuses an application before receiving any submissions, the impression created by that conduct is not erased if the judge, after having announced his or her decision, agrees to listen to the party’s submissions under sufferance.[34]
(Original footnotes; original emphasis in bold; my emphasis added in italics.)
[10]Antoun v R (2006) 224 ALR 51.
[11]Ibid, 60 [34] (Kirby J).
[12]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”).
[13]Ibid, 348 [19] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[14]Antoun (2006) 224 ALR 51, 60 [35] (Kirby J).
[15]Johnson v Johnson (2000) 201 CLR 488 (“Johnson”).
[16]Ibid, 492 [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). See also Ebner (2000) 205 CLR 337, 345 [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[17]Ebner (2000) 205 CLR 337, 345 [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[18]Ibid.
[19]Re JRL; Ex parte CJL (1986) 161 CLR 342, 352 (Mason J).
[20]Ebner (2000) 205 CLR 337, 345 [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[21]Ibid.
[22]Appellant’s (plaintiff’s) outline of submissions (30 November 2009), [12].
[23]Concrete (2006) 229 CLR 577, 609-610 [110]–[111] (Kirby and Crennan JJ).
[24]Ibid.
[25]Concrete (2006) 229 CLR 577, 635 [177] (Callinan J).
[26]Johnson (2000) 201 CLR 488, 493 [13] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[27]Ibid.
[28]Concrete (2006) 229 CLR 577, 610 [112] (Kirby and Crennan JJ).
[29]Antoun (2006) 224 ALR 51, 59 [29] (Kirby J).
[30]Antoun (2006) 224 ALR 51, 60 [33] (Kirby J); Concrete (2006) 229 CLR 577, 635-636 [177]–[178] (Callinan J).
[31]Antoun (2006) 224 ALR 51, 57 [22] (Gleeson CJ).
[32]Ibid, 52 [2], 57 [21]–[23] (Gleeson CJ), 58-59 [28], 59 [30], 63 [48] (Kirby J), 64 [53], 65 [56] (Hayne J), 77 [83], 77-78 [86]–[87] (Callinan J).
[33]Ibid.
[34]Ibid, 52 [2] (Gleeson CJ), 60 [36] (Kirby J), 78 [87] (Callinan J).
E. The parties’ contentions
The United Parties submitted that some of the findings made in the Costs Ruling were unfair and without a proper basis. It was submitted that the findings in the Costs Ruling gave rise to circumstances by which a fair-minded lay observer might reasonably apprehend that I would not bring an impartial mind to the resolution of the last question on costs left for determination.
As to the first step of the relevant test, the findings in the Costs Ruling relied upon by the United Parties to support the contention that they might lead to me deciding the remaining issue other than on its legal and factual merits, were as follows:
50It was plain from this, and other evidence before the court, that Silver did not take kindly to, and was most unaccepting of, anyone who crossed him with respect to the issues relating to these proceedings.[35]
[35]The reference to “this” was a reference to the Costs Ruling, [49], which, in turn, referred to the Principal Judgment, 406-407 [433], 407 [437]-[438]. Further, the reference to “other evidence” was a reference to evidence referred to in the Principal Judgment at 395 [379], 403 [418], 403 [420], 404 [426].
…
70Although that deals with the merits of the case generally, some matters should be referred to specifically:[36]
…
(6)Silver gave evidence about his consternation upon being shown an email, produced as part of the discovery process, containing a direction from Ziegelaar at around 6.00 pm on 22 October 2016.[37] Silver said he was enraged when he was told by his solicitors that, on the “afternoon” of 22 October 2016, Ziegelaar had directed Mackinnon to cease work. He also said that when he heard this, it was like a kick in the gut.[38] In fact, that was not what the email said,[39] nor was it the consequence of the email being sent.[40]
(7)The belated commencement of the United Proceeding resulted in the initial trial in 2017 being adjourned, substantially increasing the costs associated with the litigation overall.
(8)As referred to above,[41] Silver threatened a witness, Stockdale,[42] after it became apparent that Stockdale was likely to give evidence at trial. For the reasons discussed in the Principal Judgment,[43] it is not appropriate to say anything further on this issue beyond what is strictly necessary for the purpose of this application. Self-evidently, Silver’s conduct was unsatisfactory and gave rise to, amongst other things, unnecessary costs and distraction from the resolution of the real issues in dispute.[44]
(Emphasis added. With the exception of footnote 34, the footnotes in the quoted passages above are the original footnotes in the Costs Ruling.)
[36]This list does not purport to be exhaustive with respect to the matters that could properly be raised on this issue.
[37]Principal Judgment, 379 [302].
[38]Ibid, 379 [304].
[39]Ibid, 379 [302]-[303].
[40]Ibid, 388 [336]-[337].
[41]Costs Ruling, [49].
[42]“Stockdale” was a reference to Hayden Stockdale, a former chief financial officer of United Petroleum Holdings Pty Ltd: see Principal Judgment, 328 [19].
[43]Principal Judgment, 407 [434].
[44]Ibid.
As to the second step of articulating the logical connection between these passages of the Costs Ruling and the feared deviation from the course of deciding the remaining costs issue on its merits, it was submitted the fourth plaintiff in the United Proceeding, Avi Silver (“Silver”), was being “pursued … with a vigour which some might say was last seen in Saladin’s pursuit of the Christians”. There was no elaboration of this by the United Parties’ counsel to explain the required logical connection. In addition, it was contended that Silver had only made 1 mistake, namely to put his trust in Hudson and a partner at Freehills, Michael Ziegelaar, and when they “let him down[45] to bring his claims against them to this court”.
[45]This submission is contrary to the findings made in the Principal Judgment.
In response, after recording that no notice had been given of the recusal application, Freehills’ counsel indicated that he was willing to proceed to make submissions in opposition to the application. Freehills submitted that the findings in the Costs Ruling referred to by the United Parties were “well and truly” open, and there was no “real” reasonable apprehension of bias that could arise. Further, it was submitted that, in substance, there was no material difference between these particular findings in the Costs Ruling and those that had already been made in the Principal Judgment.
The solicitor appearing for Hudson adopted Freehills’ submissions.
The United Parties’ senior counsel was invited by the court to make any submissions in reply. Accepting that invitation, the United Parties submitted that the use of the words “crossed him” in the Costs Ruling[46] were not used in the Principal Judgment. Further, it was submitted that referring to Silver’s conduct in approaching a witness as “unsatisfactory”[47] was a view that had not been previously articulated in the Principal Judgment. Exception was also taken to the reference to “unnecessary costs and distraction” in the same sentence of the Costs Ruling.
[46]Costs Ruling, [50]: see par 12 above.
[47]Costs Ruling, [70(8)]: ibid.
F. Ruling
The context in which this recusal application is made includes findings in the Costs Ruling that were in favour of the United Parties, or at least some of them. In particular, in the Fees Proceeding, Freehills’ application for the following was unsuccessful:
(1)Indemnity costs from the commencement of the Fees Proceeding.
(2)Indemnity costs with respect to particular issues.[48]
(3)Indemnity costs above scale.
(4)An order for a gross sum amount, instead of a taxation.
And in the United Proceeding, Freehills’ application for the following was unsuccessful:
(1) Indemnity costs above scale.
(2)An order for costs in a gross sum amount, instead of a taxation.[49]
[48]See Costs Ruling, [56]-[61].
[49]For completeness, Freehills also sought to support their application for indemnity costs on the basis that it was the subject of adverse media coverage during the course of the case. In rejecting Freehills’ brief submissions on this point, I declined to take that factor into account for the reasons stated in the Costs Ruling: see fn 138.
Further, the relevant context in which the findings in the Costs Ruling were made was that both Freehills and Hudson made submissions criticising the conduct of the United Parties, and, in particular, of Silver. The evidence at trial was that Silver was principally responsible for the conduct of the United Parties’ case.[50]
[50]Principal Judgment, 327-328 [16]-[17].
Turning to the United Parties’ contentions, speaking generally, the mere fact that a particular finding was not made, or that a particular phrase was not used, in the Principal Judgment is no bar to a finding, or observation, being properly made on the ruling of the indemnity costs applications. As in this case, it is usual in an indemnity costs application after a trial for the court to be asked to consider and decide matters that were not raised for decision at trial. This is particularly so when evidence is put before the court on the costs application that was not led at trial.
Dealing with the specific paragraphs of the Costs Ruling in question, the observation in paragraph 50 was expressly confined to the issues relating to the proceedings and by specific reference to the relevant parts of the Principal Judgment relied upon. It could not sensibly be read as going beyond the matters the subject of the evidence in the proceedings.
Further, the observation was made in direct response to a submission by Hudson that the United Parties were acting with some ulterior motive by reason that Hudson was only sued after he had allowed a witness outline to be filed in support of Freehills’ case.
As to the use of the words “crossed him”, that was little more than an attempt to paraphrase the evidence at trial, as referred to in the Principal Judgment, and as cross-referenced in paragraph 50 of the Costs Ruling:
(1) Of Silver being on a “rampage about being blind-sided”.
(2)About Silver “screaming and yelling” at another non-executive director who had not acted in accordance with Silver’s wishes.
(3)About Silver wanting to explore whether someone had “ambushed” the Public Offering.
(4)Of Silver “yell[ing]” at Stockdale because of the contents of his witness outline.
As Freehills submitted, when that evidence is viewed collectively, the relevant finding in paragraph 50 was open on the evidence before the court.
Paragraph 70(6) of the Costs Ruling did no more than reflect what was contained in the Principal Judgment, with 1 minor exception. While the reference to Silver being “enraged” was not referred to in the Principal Judgment, it was the exact word put to Silver during cross-examination, and with which, to my observation, Silver did not appear to cavil. If my understanding of this particular piece of evidence is incorrect, it makes no difference to the underlying conclusion made in paragraph 70(6).
As to paragraph 70(7), the United Parties did not elaborate on how the contents of this subparagraph could found a proper basis for a recusal. Accordingly, beyond stating that it was uncontroversial that the adjournment of the initial trial resulted from the United Parties wanting to amend their case and that this gave rise to additional costs, I do not propose to address this matter any further.
As to paragraph 70(8), it is correct that there was no finding in the Principal Judgment as to the appropriateness or otherwise of Silver’s conduct in approaching Stockdale in the manner that he did. As I pointed out in the Principal Judgment, in circumstances where contempt proceedings had been threatened by Freehills, I considered it appropriate to refrain from making any finding on the issue unless it was strictly necessary.[51]
[51]Principal Judgment, 407 [434].
However, Freehills specifically relied upon Silver’s conduct in this regard in supporting its application for indemnity costs. In written submissions filed 2 days before the hearing of the indemnity costs applications, Freehills submitted that it was likely Silver had “committed a contempt of court by his intimidation of Freehills’ witness, Stockdale”. Further, it is well established that if a party has committed a contempt, it may be directly relevant to whether or not costs ought to be awarded on an indemnity basis.[52]
[52]Colgate Palmolive Co v Cussons (1993) 46 FCR 225, 234.1 (Sheppard J), referring to EMI Records Ltd v Ian Cameron Wallace Ltd [1983] Ch 59, 65D (Megarry VC).
In those circumstances, it would have been inappropriate for me not to address this relevant consideration in the Costs Ruling. In so doing, consistent with any approach in the Principal Judgment, I again refrained from addressing this matter beyond what I considered to be strictly necessary.
In summary, the use of the word “unsatisfactory” in paragraph 70(8) of the Costs Ruling did not provide a proper basis for the recusal application as it was a finding made in direct response to a submission, and was supported by evidence before the court.
For completeness on this point, some further observations should be made. First, no exception was taken by the United Parties on the recusal application to the description of Silver’s conduct as consisting of “serious and unwarranted threats”.[53] Secondly, in closing submissions at trial, lead senior counsel for the United Parties conceded that the conduct in question was “unwise”. This was not addressed on the recusal application. Thirdly, in seeking to understand the United Parties’ submissions on the recusal application, I inquired of the United Parties’ senior counsel whether it was being contended that the manner in which Silver dealt with Stockdale was satisfactory. Senior counsel declined to engage on that issue. Fourthly, in the United Parties’ submissions in opposition to the indemnity costs applications, no submission was put, in writing or orally, which addressed Freehills’ contention concerning the likelihood of a contempt having been committed.
[53]Costs Ruling, [49].
With respect to the finding of “unnecessary costs and distraction” in paragraph 70(8), the basis of that finding was footnoted to the relevant paragraph in the Principal Judgment.[54] That paragraph expressly referred to an interlocutory application that arose out of the conduct of Silver and the effect that it had on Stockdale. In short, the Costs Ruling in this regard did not go beyond what had already been stated in the Principal Judgment.
[54]Costs Ruling, fn 137, referring to the Principal Judgment, 407 [434].
Finally, something must be said about the timing of the recusal application. Generally speaking, it would be contrary to the due administration of justice for a judge to recuse herself or himself from making final orders merely because exception was taken by a party to some of the findings made in determining the issues before the court which were adverse to that party.[55]
[55]Cf Oakley Thompson & Co Pty Ltd v Maisano (No 3) [2015] VSC 350, [10]; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283, 303 [39] (French CJ, dissenting); Re JRL; Ex parte CJL (1986) 161 CLR 342, 352.4 (Mason J).
G. Conclusion
For the reasons stated, the application for me to recuse myself on the grounds of apprehended bias was dismissed.
H. Other matters
For completeness, after the application for recusal was dismissed, submissions were made with respect to the orders that were appropriate for the costs of the indemnity costs applications. In the Fees Proceeding it was ordered:
The defendants pay 80% of the plaintiff’s costs of and incidental to the plaintiff’s application made by summons filed 9 July 2018, including reserved costs.
And in the United Proceeding it was ordered:
(1)The plaintiffs pay 90% of the first defendant’s costs of and incidental to the first defendant’s application made by summons filed 9 July 2018, including reserved costs.
(2)The plaintiffs pay 100% of the second defendant’s costs of and incidental to the to the second defendant’s application made by summons filed 6 July 2018, including reserved costs.
In my view, without having undertaken a precise assessment, the proportions of 80% and 90% awarded in favour of Freehills respectively reflected, in substance, the level of success Freehills achieved in each proceeding (noting that adverse costs orders had already been made with respect to some of Freehills’ costs of the applications).[56] Finally, I note that the United Parties did not rely upon the court declining to deal with media coverage as a factor that ought to decrease any costs awarded in favour of Freehills.[57]
[56]See par 8 above, order 3 in the Fees Proceeding and order 4 in the United Proceeding.
[57]See fn 49 above.
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