Viva Energy Refining Pty Ltd v Sumervale Pty Ltd
[2022] VSC 773
•15 December 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S ECI 2022 01568
IN THE MATTER of an application under s 84(1)(c) of the Property Law Act 1958 (Vic) for the discharge, or in the alternative modification, of the covenants contained in Instruments of Transfer 1435176, 1503993, 1806300 and 1417550
BETWEEN:
| VIVA ENERGY REFINING PTY LTD (ACN 004 303 842) | Plaintiff |
| v | |
| SUMERVALE PTY LTD (ACN 161 202 697) | First Defendant |
| SUNYHILL PTY LTD (ACN 161 192 392) | Second Defendant |
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JUDGE: | Matthews AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 December 2022 |
DATE OF RULING: | 15 December 2022 |
CASE MAY BE CITED AS: | Viva Energy Refining Pty Ltd v Sumervale Pty Ltd & Anor |
MEDIUM NEUTRAL CITATION: | [2022] VSC 773 |
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COURTS AND JUDGES – Recusal – Reasonable apprehension of bias – Application that trial judge recuse herself – Trial judge was instructing solicitor in previous litigation against a company in same corporate group as the defendants – Whether that gives rise to reasonable apprehension of bias – Application that trial judge recuse herself refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Townsend of counsel | Davis Advisory |
| For the Defendants | Mr S R Horgan KC with Ms L O’Rorke of counsel | Slocombe Brand Lawyers |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Evidence............................................................................................................................................... 3
The McLean Affidavit................................................................................................................... 3
The First Brand Affidavit............................................................................................................. 5
The Second Brand Affidavit........................................................................................................ 6
The First Gerhardy Affidavit....................................................................................................... 6
The Second Gerhardy Affidavit.................................................................................................. 8
Submissions........................................................................................................................................ 9
The Defendants’ submissions...................................................................................................... 9
Plaintiff’s submissions................................................................................................................ 15
Defendants’ submissions in reply............................................................................................. 20
Consideration.................................................................................................................................... 23
The Impugned Assertions.......................................................................................................... 24
The required logical connection................................................................................................ 25
Conclusion......................................................................................................................................... 31
HER HONOUR:
Introduction
This proceeding concerns an application by Viva Energy Refining Pty Ltd (‘Plaintiff’) for the discharge or modification of four restrictive covenants burdening part of the land known as 90 Refinery Road, Corio, Victoria, more particularly described in certificate of title volume 8866 folio 943 (‘Land’).[1] The Plaintiff is the registered proprietor of the Land.
[1]The covenants are those contained in Instruments of Transfer 1435176, 1503993, 1806300 and 1417550 (‘Covenants’).
In accordance with the usual procedure for dealing with such applications, at the first return of the proceeding on 16 June 2022 the Court made orders that the registered proprietors of land with the benefit of the Covenants be given notice of the application. At the second return of the proceeding on 11 August 2022, two of the beneficiaries of the Covenants, Sumervale Pty Ltd and Sunyhill Pty Ltd (together, the ‘Defendants’), having notified the Plaintiff’s solicitor of their objection to the relief sought in the proceeding, were represented by counsel and were joined to the proceeding as the First and Second Defendants respectively. Orders were made on that day for the parties to attend a mediation on or before 3 October 2022.
At the third return of the proceeding on 20 October 2022, the Court fixed the proceeding for trial on an estimate of three days commencing 31 January 2023 before me. Pre-trial directions were also made on that day. Again, the Defendants were represented by counsel at that hearing.
I was the presiding judicial officer at each of the three hearings referred to above.
This decision concerns an application made by the Defendants by way of summons filed 9 November 2022 (‘Recusal Application’) seeking orders that:
(a) I recuse myself from hearing and determining the trial in this proceeding;
(b) the orders I made on 20 October 2022 be vacated;[2] and
(c) the proceeding be referred to another associate judge or judge and listed for a directions hearing before them as soon as the business of the Court allows.
[2]The summons refers to the orders I made on ’21 October 2022‘. I assume this as an error, as the orders were made on 20 October 2022 but authenticated on 21 October 2022.
In support of the Recusal Application, the Defendants rely on the affidavits of:
(a) Nicholas Adam Slocombe Brand sworn 4 November 2022 (‘First Brand Affidavit’);
(b) Andrew John McLean sworn 4 November 2022 (‘McLean Affidavit’); and
(c) Mr Brand sworn 2 December 2022 (‘Second Brand Affidavit’).
The Plaintiff opposes the Recusal Affidavit and relies on the affidavits of Mark Stephen Gerhardy sworn:
(a) 23 November 2022 (‘First Gerhardy Affidavit’); and
(b) 5 December 2022 (‘Second Gerhardy Affidavit’).
The parties have also filed written submissions, as follows:
(a) outline of submissions by the Defendants, dated 17 November 2022 (‘Defendants’ Outline’);
(b) outline of submissions by the Plaintiff, dated 24 November 2022 (‘Plaintiff’s Outline’); and
(c) submissions in reply by the Defendants, dated 29 November 2022 (‘Defendants’ Reply Outline’).
The Recusal Application was heard on 6 December 2022. In making this decision, I have taken all of the material referred to in the previous three paragraphs into account, along with the oral submissions made at the hearing.
The Defendants do not allege any actual bias. They allege apprehended bias, arising from my prior involvement as a solicitor in respect of another proceeding,[3] which will be explained below.
[3]Defendants’ Outline, [2].
For the reasons which follow, I will dismiss the Recusal Application.
Evidence
Below, I set out a brief summary of the evidence relied upon.
The McLean Affidavit
The below matters are all taken from Mr McLean’s affidavit.
Mr McLean is the General Counsel for United Petroleum Pty Ltd and its related entities (‘United Petroleum Group’) and has been so since about 2011.[4]
[4]McLean Affidavit, [1].
The Defendants are both part of the United Petroleum Group.[5]
[5]McLean Affidavit, [6].
It is common for the United Petroleum Group to utilise single venture companies to own or operate various of its more than 430 retail service station outlets in Australia.[6] One of those single venture companies was Ausbal Pty Ltd (‘Ausbal’).[7]
[6]McLean Affidavit, [8].
[7]McLean Affidavit, [9].
In September and October 2014, Mr McLean was providing instructions on behalf of Ausbal in proceedings commenced by it in this Court (‘2014 Proceeding’) against Grandsea Holdings Pty Ltd (‘Grandsea’). The 2014 Proceeding ran to a final hearing and determination before Ferguson J (as her Honour then was), with the reasons being published in December 2014.[8] Mr Horgan appeared for Ausbal at the final hearing.[9]
[8]Ausbal Pty Ltd v Grandsea Holdings Pty Ltd [2014] VSC 625 (‘2014 Proceeding Reasons’).
[9]McLean Affidavit, [12].
In the 2014 Proceeding, Mr Suresh Senathirajah appeared for Grandsea, instructed by King & Wood Mallesons (‘KWM’), with me as the instructing solicitor.[10]
[10]McLean Affidavit, [13].
Mr McLean describes the case as being ‘a property law matter concerning easements and rights of carriageway.’[11]
[11]McLean Affidavit, [13].
Mr McLean says that in his opening submissions for Grandsea at the trial, Mr Senathirajah asserted that Ausbal’s claim was a waste of the Court’s time, and that Ausbal was acting in breach of the Civil Procedure Act 2010 (Vic) (‘CPA’) by not acting reasonably and responsibly in conducting the litigation. Mr McLean says that these ‘were serious allegations and I took them seriously’.[12]
[12]McLean Affidavit, [15].
Mr McLean also says that he ‘was and am particularly aggrieved by the assertion’ because he signed the proper basis certification when the 2014 Proceeding was commenced.[13]
[13]McLean Affidavit, [16].
In addition, Mr McLean deposes as follows:
17.I understand that Mr Senathirajah must have been instructed by his client to make the assertion. I presume his instructing solicitor, Ms Matthews, was aware of and agreed with those instructions.
18.I interpreted Mr Senathirajah’s assertion as a serious allegation of misconduct against me as the corporate solicitor for Ausbal. I was and am still concerned that this assertion was made in circumstances where Ausbal, part of the United [Petroluem Group], was attempting to protect its proprietary rights.
19.The trial of the proceeding was in my view very heated and unpleasant. From the commencement of the trial to its conclusion the case was highly acrimonious.
20.Mr Senathirajah’s assertions were found to be without merit, as demonstrated by [the 2014 Proceeding Reasons].
Mr McLean also deposes that the corporate entities in the United Petroleum Group are privately owned, with their directors being either Avi Silver or Eddie Hirsh, or both. In this proceeding, Mr Silver is the sole director and shareholder of the First Defendant, and Mr Hirsh is the sole director and shareholder of the Second Defendant. At the time of the 2014 Proceeding, Mr Silver and Mr Hirsh were both directors of Ausbal.[14]
[14]McLean Affidavit, [21]-[23].
Mr McLean says that Mr Silver gave evidence in the 2014 Proceeding and may be called to give evidence in this proceeding.[15]
[15]McLean Affidavit, [24].
Mr McLean concludes his affidavit as follows:
In the circumstances set out above, I am concerned and consider that a fair-minded lay observer might reasonably apprehend that her Honour Associate Justice Matthews might not bring an impartial and unprejudiced mind to the resolution of the issues in dispute in this proceeding.
The First Brand Affidavit
Mr Brand is a principal lawyer and managing director of Slocombe Brand Lawyers, solicitors for the Defendants in this proceeding.[16]
[16]First Brand Affidavit, [1].
The purpose of the First Brand Affidavit appears to be one of placing evidence before the Court as to the communications between the parties or their representatives as to the Defendants seeking my recusal.
Mr Brand deposes that:
(a) on 28 October 2022 he was informed by Mr Horgan that he had contacted the Plaintiff’s counsel, Mr Townsend, and ‘raised the issue of [Matthews AsJ] hearing the trial in this proceeding in light of [her] involvement’ in the 2014 Proceeding, and that Mr Townsend had said he would respond;[17]
(b) on 2 November 2022, Mr Horgan sent Mr Townsend an email to follow up this issue;[18] and
(c) later on 2 November 2022, he received a letter from the Plaintiff’s solicitor referring to the communications between counsel and indicating that the Plaintiff would not consent to the Defendants seeking my ‘agreement not to hear the trial in this proceeding’.[19]
[17]First Brand Affidavit, [5].
[18]First Brand Affidavit, [6].
[19]First Brand Affidavit, [7].
Mr Brand exhibits the correspondence referred to.
The Second Brand Affidavit
In the Second Brand Affidavit, Mr Brand deposes to the steps taken by him to engage an economics expert to prepare a report for the Defendants for use at the trial of the proceeding. This report would be needed before then obtaining an expert valuation report. The expert economist estimates costs in the range of $80,000 to $100,000 (an increase from the initial estimate of $50,000 to $80,000).[20]
[20]Second Brand Affidavit, [4]-[8].
Mr Brand deposes that there was insufficient time to meet the Court ordered date of 2 December 2022 for the Defendants to file and serve their expert reports.[21]
[21]Second Brand Affidavit, [8].
Mr Brand also deposes that settlement negotiations between the parties were underway by the end of October 2022,[22] that they continued between 11 and 16 November 2022,[23] and that on 17 November 2022 given the progress of settlement negotiations and the estimated expert economist’s costs, ‘my client instructed me to inform the expert witness to place on hold further work on the report pending an outcome from the settlement negotiations’.[24] He says he did as instructed,[25] that settlement negotiations continued between 18 and 24 November 2022 and to the best of his knowledge they remain on foot.[26]
[22]Second Brand Affidavit, [5].
[23]Second Brand Affidavit, [9].
[24]Second Brand Affidavit, [10].
[25]Second Brand Affidavit, [10].
[26]Second Brand Affidavit, [11].
The First Gerhardy Affidavit
Mr Gerhardy is employed by the Plaintiff and has held the position of Geelong Energy Hub Projects Manager since 2019.[27]
[27]First Gerhardy Affidavit, [2].
Mr Gerhardy deposes that the Geelong Energy Hub Project (‘Project’) was announced in June 2020 and is part of a strategic vision to manage the shortfall of gas predicted for the mid-2020s on the east coast of Australia and Victoria.[28] He says that the Project vision includes a gas terminal, solar energy farm, projects to provide access to lower emission energy sources such as renewables and hydrogen, and the development of strategic storage to improve Australia’s fuel supply security.[29]
[28]First Gerhardy Affidavit, [8].
[29]First Gerhardy Affidavit, [11].
As part of the Project, the Plaintiff intends to develop the first public commercial hydrogen refuelling facility in Australia on the south-western edge of the Land (‘Hydrogen Service Station’).[30]
[30]First Gerhardy Affidavit, [12].
Mr Gerhardy says that if the Recusal Application is granted, he understands that another judge will be appointed to hear the trial and the current trial date of 31 January 2023 is likely to be moved to a later date in 2023.[31] He says that if the trial is postponed, there will necessarily be a delay to the determination of the proceeding, and that removal or modification of the Covenants affecting the Land is a precursor to the development of the Hydrogen Service Station.[32]
[31]First Gerhardy Affidavit, [18].
[32]First Gerhardy Affidavit, [19]. While the First Gerhardy Affidavit does not explain this, it is apparent from the originating motion that the restrictive Covenants prevent any building other than a dwelling house, church, school or hall being erected on the Land and prevent any trade or business being conducted on the Land.
Mr Gerhardy deposes that if the restrictive covenants application is not decided, then:
(a) the Plaintiff’s application for a planning permit to develop the Hydrogen Service Station from the City of Greater Geelong (‘Council’) cannot be decided, as the Council has informed him that it cannot determine the planning permit application or will otherwise have to refuse it, by reason of s 61(4) of the Planning and Environment Act 1987 (Vic) if the permit would authorise anything which would result in a breach of the restrictive Covenants that are on the title;[33]
[33]First Gerhardy Affidavit, [20]-[21].
(b) the Plaintiff is at risk of losing federal government funding which it has been allocated for the Hydrogen Service Station project if certain milestones are not met by specified dates, which are set out in the First Gerhardy Affidavit;[34]
[34]First Gerhardy Affidavit, [22]-[25].
(c) the Plaintiff is at risk of losing state government funding in a similar way;[35]
[35]First Gerhardy Affidavit, [26].
(d) the Plaintiff has ‘partnered’ with various private entities in respect of the acquisition of hydrogen vehicles and there is a risk that delay may mean funding for parts of this may not be available;[36]
(e) delay may cause a loss of market confidence in the hydrogen sector;[37] and
(f) warranties for new technologies and equipment in the new energies sector may be lost or adversely affected.[38]
[36]First Gerhardy Affidavit, [27]-[30].
[37]First Gerhardy Affidavit, [31]-[34].
[38]First Gerhardy Affidavit, [35].
The Second Gerhardy Affidavit
In his second affidavit, Mr Gerhardy addresses two submissions made in the Defendants’ Reply Outline.
He deposes that it is not the case that there is no evidence that the plans for the Hydrogen Service Station have been formalised and that the plans are in the formative stages only. He says that the plans are well advanced and that copies of the proposed plans were exhibited to his affidavit dated 8 June 2022 filed and served in this proceeding.[39]
[39]Second Gerhardy Affidavit, [9].
Mr Gerhardy also addresses the Defendants’ contention that there is no evidence of the Plaintiff being in a position to lodge a planning permit application now or in the course of 2023, or that it cannot begin preparing its application now pending the trial. Mr Gerhardy says that this is incorrect and that the planning permit application was lodged with the Council on 20 June 2022. He exhibits a copy of Council’s acknowledgement of the application to the Second Gerhardy Affidavit.[40]
[40]Second Gerhardy Affidavit, [12].
Submissions
The Defendants’ submissions
As noted above the Defendants do not allege any actual bias, but allege apprehended bias arising from my involvement as a solicitor with the 2014 Proceeding.
The Defendants’ submissions, taken from the Defendants’ Outline and their oral submissions, are summarised below.
The Defendants referred to Deane J’s judgment in Webb v The Queen to identify four main categories of case in terms of the appearance of bias:[41]
The area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories of case. The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third and consists of case where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.
[41]Webb v The Queen (1994) 181 CLR 41, 74 (citations omitted).
The Defendants submit that the well-established test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to one or more of the issues the judge is required to decide.[42]
[42]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6]-[8] (‘Ebner’); Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, [31]; Charisteas v Charisteas (2021) 393 ALR 389, [11] (‘Charisteas’).
The question is one of possibility, not probability.[43]
[43]Ebner, [7].
Whether a fair-minded lay observer might reasonably apprehend a lack of impartiality is largely a factual question, to be considered in the legal, statutory and factual context of the case at hand.[44]
[44]Isbester v Knox City Council (2015) 255 CLR 135, [20] (‘Isbester’), cited with approval in Elliott v Lindholm (2020) 62 VR 307, [73].
In order to establish apprehended bias, a two stage test applies and one must: (i) identify the particular relationship or circumstance said to give rise to the apprehended bias; and (ii) draw a logical connection between that circumstance or relationship and the feared deviation from impartial decision making.[45]
[45]See, for example, Ebner, [8]; Charisteas, [11].
The Defendants also submit that there is a convention that where there is a real possibility of an application for bias being made prior to the hearing of a proceeding, and a party raises the possibility of apprehended bias at an early stage, another judge should be found to hear the case and a Court should not be reluctant to do so.[46]
[46]See S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 91 FLR 175, 189 (‘Caltex’) and British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109, [71] (‘British American Tobacco’), cited with approval in QBH Commercial Enterprises Pty Ltd v Dalle Projects Pty Ltd (No 2), [10]-[11]. See also Wilsonv Waigani Pty Ltd [2018] VSC 302, [239].
They say that they have made the Recusal Application at the earliest possible opportunity (after communicating with the Plaintiff about this matter, and then communicating with my Associate about a suitable listing date), well in advance of the date listed for trial.
Apprehended bias has been alleged in a number of cases where a judge has had a prior professional relationship, as a lawyer (be it counsel or solicitor), with a client, and that relationship is said to give rise to a reasonable apprehension of bias in a current proceeding before the judge.[47]
[47]See, for example, the authorities referred to in British American Tobacco, [67]-[85].
The authorities referred to below indicate that apprehended bias is likely to be found where:
(a) the judge previously acted as counsel in a prior proceeding where they:
(i) made allegations of impropriety against a person connected with a party in a current proceeding before the judge;[48] or
[48]Amos v Wiltshire [2016] QCA 070, [15] (‘Amos’).
(ii) cross-examined a witness, and that person will also be a witness in a current proceeding before the judge, and the question of credit will necessarily arise as a result;[49] or
[49]Amos, [15]; Caltex, 193.
(b) the court in the prior proceeding made findings of credit against a witness connected with a party in the case before the judge;[50]
[50]Amos, [15]-[16].
(c) the judge acted as counsel in a prior proceeding which involved ‘hard fought litigation’;[51]
(d) the judge, as counsel, gained special knowledge of facts through their involvement in a prior proceeding, which a lay observer may reasonably think cannot be put out of the mind of the judge;[52] and
(e) the subject of the judge’s prior relationship is a person or a small continuing group of persons, rather than a large industrial corporation with a shifting body of directors and managers, which has been reconstituted and changed hands between the prior proceeding and the current proceeding before the judge.[53]
[51]Contract Mining Services Pty Ltd v Adelaide Brighton Cement Ltd [2020] SASC 69, [53] (‘Contract Mining Services’).
[52]British America Tobacco, [85], citing S&R Investments v Minister for Planning [2001] WSSC 255.
[53]Caltex, 182.
The Defendants submit that the 2014 Proceeding involved a dispute about whether certain development works proposed by Grandsea, for the purpose of extending a bulk billing medical clinic on Grandsea’s land, would substantially interfere with Ausbal’s easement rights, which rights benefited a United Petroleum petrol station operated on Ausbal’s land.[54]
[54]The Defendants cite the First McLean Affidavit, [13] as the evidence for this description: Mr McLean’s evidence is not as detailed as set out in the Defendants’ Outline. I do not think anything much turns on this, since these details are apparent when one reads the 2014 Proceeding Reasons.
The Defendants say that the subject matter of the 2014 Proceeding, and the central issue for determination, is similar to the subject matter of and central issue for determination in this proceeding. Namely, whether the discharge or modification of restrictive covenants will substantially injure the Defendants who own land upon which a United Petroleum petrol station operates, in circumstances where the Defendants oppose the discharge or modification in order to protect their property rights.
The Defendants’ submissions rely on the evidence set out in the First McLean Affidavit as to the 2014 Proceeding, me being instructing solicitor for Grandsea in that proceeding, and the assertions made by Mr Senathirajah on behalf of Grandsea in his opening submissions.
In particular, in oral submissions the Defendants relied on the following extracts of the transcript from the trial of the 2014 Proceeding:
(a) Mr Horgan began by referring to an extract from Mr Senathirajah’s opening which Mr Horgan submitted explains what follows after. In the opening at the trial of the 2014 Proceeding, Mr Senathirajah stated:[55]
[55]2014 Proceeding Trial Transcript, p. 29.18-31, contained in Exhibit AM-1, p.71 to the McLean Affidavit.
If Your Honour please, this matter should not be taking the court’s time because as has been notified to the plaintiff, the way in which the defendant now proposes to proceed with its construction of its medical centre, will not interfere with any of the easement rights of the plaintiff.
And I’ll explain exactly how the case is to be put on behalf of the defendant. But I want to make that clear to Your Honour that as far as Dr [Lim] is concerned, this is a waste of Your Honour’s time because he’s taken advice about the matters that have been raised. And intends to proceed with the redevelopment of his medical centre, in accordance with the easement rights of the plaintiff.
(b) Mr Horgan then referred to a section of Mr Senathirajah’s opening where her Honour was asking about what works were going to be done on the western end:[56]
[56]2014 Proceeding Trial Transcript, p. 39.11-31, contained in Exhibit AM-1, p.81 to the McLean Affidavit.
Her Honour: So whatever works were going to be done on the western end of your client’s property won’t proceed, is that what you’re saying?
Mr Senathirajah: Will not proceed unless …
Her Honour: … the council says you can have a two-way,
Mr Senathirajah: which my learned friend’s clients are compliant. This is why I started my opening by saying this is a waste of time. Because virtually everything the plaintiff wants it is getting, and it will get, or my client will not proceed. He will do his (indistinct) in a different way, which will not impact on the carriageway. And Your Honour, when you go to see the view, will see how this happens. Now, not only is that the way the defendant intends to conduct its defence and way forward.
But I’m instructed to make an offer in open court. That in addition to those two matters, it will adjust its actual building, its actual proposed building, so that at the eastern end of the carriageway where it joins Hallam Road, there will be even greater room.
(c) Mr Horgan then referred to the section of the opening where Mr Senathirajah made an open offer and went on to say:[57]
And I’ve taken some time Your Honour only to find the relevant chronological history, and that was for a particular purpose, because in 2014, litigants in this court, and in fact, litigants in any court of Victoria, are required to conduct themselves in accordance with the obligations of the Civil Procedure Act 2010.
And one of the central things of that Act is that litigants are required to act reasonably and responsibly in conducting litigation. To date, the plaintiff has not. The defendant, Dr [Lim], has at every turn, Your Honour, done his best to accommodate the concerns raised by the plaintiff, and this offer, this is the last time I say it, this offer is simply the last of his efforts in that regard. Now, can I say the plaintiff’s position is as stark as this.
[57]2014 Proceeding Trial Transcript, p. 42.2-17, contained in Exhibit AM-1, p.84 to the McLean Affidavit.
The comments made by Mr Senathirajah in his opening submission on behalf of Grandsea at the trial of the 2014 Proceeding which are relied upon here are that the 2014 Proceeding was a waste of the Court’s time; and that litigants are required to conduct themselves in accordance with the obligations of the CPA and Ausbal had not acted reasonably and responsibly in conducting litigation (‘Impugned Assertions’).
Relying on the Impugned Assertions, Mr Horgan submitted that:
(a) there can be significant repercussions for practitioners in breaching the CPA such as costs, which are not minor and can lead to financial ruin, and the disbarring of solicitors and counsel; and
(b) the Defendants presume that the sort of overarching obligations alleged to have been breached might include the paramount duty obligation, the requirement of a proper basis, the obligation to narrow the issues in dispute, and the obligation to use reasonable endeavours to resolve the dispute.
The Defendants submit that it is reasonable to presume that:
(a) the Impugned Assertions were made on the basis of instructions by Grandsea, and that I was aware of and agreed with those instructions;
(b) I gained special knowledge of facts concerning Mr Silver, Mr Hirsh or the United Petroleum Group, during my work for Grandsea in the 2014 Proceeding, which I cannot now put out of my mind; and
(c) I formed a negative view of any one or more of Mr McLean, Mr Silver, Mr Hirsh or the United Petroleum Group throughout the conduct of the 2014 Proceeding.
The Defendants submit that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind when:
(a) hearing evidence given by any lay witness called by the Defendants, including Mr Silver, and forming a view about the credibility of that witness;
(b) managing the conduct of the proceeding, in accordance with the provisions of the CPA; or
(c) determining whether the Defendants will be substantially injured by the discharge or modification of the restrictive covenants sought in this proceeding.
Plaintiff’s submissions
The Plaintiff’s submissions in respect of the principles applicable to an application that a judge recuse herself were similar to those of the Defendants. It did not appear to me that there were any material differences between them. Accordingly, I have only included the Plaintiff’s submissions in that regard where it is not duplicative of the Defendants’ submissions.
The Plaintiff submits that though a judge may recuse herself where she considers there is a real possibility of a reasonable apprehension of bias, she should not automatically disqualify herself at the request of a party, as that would be an abdication of judicial function. [58]
[58]Livesey v NSW Bar Association (1983) 151 CLR 288 at 293-4.
In this regard, the Plaintiff submits that there is a duty for a judge to hear a case in which there is no proper reason for disqualification.[59] It is said that the administration of justice depends upon the proposition that parties ought not be able to pick and choose the judges who sit on any particular case. [60] The Plaintiff submits that the United Petroleum Group and its related entities have an extensive history of litigation in Victoria, providing a list of a number of cases in this Court and VCAT. It says that in circumstances where a party is a frequent participant in the judicial system, it is particularly important that principled tests be applied, lest a party use its knowledge and experience with judicial officers to pick and choose its bench.
[59]Western Australia v Watson [1990] WAR 248, 263; Re JRL; Ex parte CJL (1986) 161 CLR 342, 352.
[60]Karadaghian v Big Beat (Australia) Pty Ltd (No 3) [2014] NSWSC 1691.
The Plaintiff submits that a prior professional relationship between a judge and a litigant does not generally give rise to an apprehension of bias unless:
(a) the judge is considered to have an interest in the outcome; or
(b) the judge has special knowledge of the facts through prior involvement.
The Plaintiff says that there is no evidence of either of these in the present case. There is no allegation that I have an interest in the outcome, which deals with the first of these. The second of these will be dealt with below. I will interpose here to say that the Defendants submitted in reply that there were four categories of cases, referring to their earlier submissions about Webb v The Queen. It suffices to say at this point that in considering the Recusal Application, I have not limited myself to the matters referred to in the preceding paragraph but have taken all of the matters relied on into account, in particular the other categories of cases referred to in Webb v The Queen.
The Plaintiff submits that the informed observer would understand that a judge is expected to approach afresh with an open mind from the bench, and that advocacy involves no more than presenting a tenable argument, which does not necessarily reflect counsel’s own opinions on the issue (much less, that of an instructing solicitor who did not present directly to the court). In this regard, the Plaintiff refers to British American Tobacco, where Brereton J stated:
[t]he hypothetical fair-minded observer is a lay person informed as to the relevant facts of the case, sufficiently knowledgeable to bring a rational and reasonable assessment to bear on the question of whether the judge might be biased, and having a basic knowledge of the nature of practice at the Bar - including that a barrister does not become identified with the client and is bound by rules of professional ethics, and that a judge is a professional who by training, tradition and oath is required to discard irrelevant, immaterial and prejudicial material and can be ordinarily assumed to comply with the judicial oath.[61]
[61]British American Tobacco, [63].
The Plaintiff submits that there is no logical connection between my involvement in the 2014 Proceeding and a feared deviation from impartial decision making for a number of reasons which are set out in paragraphs 67 to 71 below.
First, the Plaintiff says that the subject matter of the 2014 Proceeding was dissimilar to that in this proceeding, as:
(a) the land involved in the 2014 Proceeding was some 80 kilometres away from the Land;
(b) the 2014 Proceeding involved two contiguous parcels of land, whereas the Defendants’ land in this proceeding is over one kilometre away from the Land;
(c) there are considerable differences between easements and restrictive covenants;[62]
(d) the only relationship between the Defendants and Ausbal is that they share (or shared) common directors.
[62]Prowse v Johnstone & Or [2012] VSC 4.
Second, of the Impugned Assertions, the Plaintiff submits that:
(a) these were made in passing and were not the subject of a formal application, and Mr Horgan did not object to them at the time they were made;
(b) there is no basis for Mr McLean’s presumption that I agreed to them. Rather, the transcript suggests that the comment was made in passing, ostensibly at counsel’s frustration at not being able to settle the case;
(c) even if I had agreed with the submission or been involved in instructions to counsel that it be made, the conduct falls well short of proving that I may not bring an impartial and unprejudiced mind to the resolution of the issues in dispute;
(d) in any event, criticism of a lawyer or of the conduct of proceedings does not give rise to an apprehension of bias:
It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson; Ex parte Armstrong and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.[63]
(e) counsel’s submission containing the Impugned Assertions was objectively of no significance, because Ausbal was partly successful in the 2014 Proceeding.
[63]R v Rich [2009] VSC 32, [21] citing Re L; Ex parte L (1986) 161 CLR 342.
Third, the Plaintiff says that it is not clear why Mr Silver might be embarrassed in the current proceeding or that I may not bring an impartial mind when hearing evidence from him. The Plaintiff submits that the Defendants have not told the complete story so far as Mr Silver’s involvement in the 2014 Proceeding was concerned: his evidence was tendered in that proceeding without him being required for cross-examination; and his evidence was not referred to in the 2014 Proceeding Reasons.
Fourth, the Plaintiff submits that the Defendants’ submission that it is reasonable to presume I gained special knowledge of facts concerning Mr Hirsh, Mr Silver or the United Petroleum Group through the 2014 Proceeding which I cannot put out of my mind should be rejected. The Plaintiff observes that I acted against Ausbal, not for it, and there is no evidence that I gained special knowledge of facts concerning those persons or entities, and the Defendants do not even identify what that special knowledge might be.
Fifth, the Plaintiff says that Mr McLean’s evidence that he found the 2014 Proceeding upsetting or unpleasant is irrelevant to the objective test for recusal.
The Plaintiff submits that the objective observer may be less likely to apprehend bias where a party has failed to take a timely objection to a judge sitting on any given case.[64]
[64]Adrian Zuckerman, Stefanie Wilkins, and Jonathan Adamopoulos, Zuckerman on Australian Civil Procedure (LexisNexis Butterworths, 2018) 99-100 [3.45]; Comcare v John Holland Rail Pty Ltd (No 3) [2011] FCA 164, [64]-[65].
Further, the Plaintiff submits that concerns of bias or apprehended bias can be waived by a party, who is aware of the right to object, as there will be little danger of the appearance of injustice. [65]
[65]Vakauta v Kelly (1989) 167 CLR 568, [11].
In this instance, the Plaintiff disputes the Defendants’ contention that they made the Recusal Application as soon as practicable after becoming aware that the trial was fixed for hearing before me. The Plaintiff says that the Defendants:
(a) first received notice of this proceeding on or about 23 June 2022 (‘Notice’);
(b) acknowledged in their correspondence to the Plaintiff’s solicitors dated 13 July 2022 that the orders dated 16 June 2022 were made by me;
(c) could see from the orders attached to the Notice that the matter was returnable on 11 August 2022 before me;
(d) were represented at that hearing by counsel, and no objection was taken to my participation in the proceeding; and
(e) were again represented by counsel at the further return of the proceeding on 20 October 2022, and no objection was taken to my participation in the proceeding.
The Plaintiff says that it was not until 19 weeks after the Defendants knew that I was the presiding judicial officer that they made the Recusal Application.
In the Plaintiff’s Outline, they point to the Defendants’ Outline where it is said that I should not be managing the conduct of the Proceeding. In oral submissions, the Plaintiff observed that this included directions hearings.
The Plaintiff submits that the suggestion that the Defendants took prompt action upon the matter being listed for trial before me misses the point, as it would have been obvious to any reasonably experienced practitioner that such an outcome was possible if not likely.
It says that the point remains that counsel for the Defendants was not instructed to raise any objection to my involvement at the time the matter was set down for trial and that was some months after it was known that I was case managing the proceeding.
The Plaintiff submits that an objective observer would:
(a) be less likely to apprehend bias because the Defendants took 19 weeks to apply for my recusal; and
(b) consider that being aware of their right to object, the Defendants waived that right until after I had dealt with the proceeding twice.
The Plaintiff submits that if I recuse myself now, it will mean the recasting of the timetable for the proceeding and the trial being delayed by some months. In circumstances where the Plaintiff has on more than one occasion impressed upon the Court the need for the fast and efficient determination of the issues in dispute, such an outcome would, it is said, be manifestly unfair to the Plaintiff. Mr Gerhardy’s evidence is relied upon to support this.
In conclusion, the Plaintiff says that it follows that a fair-minded lay observer would not assume I would not or could not determine the matter with the impartiality expected from an independent judicial officer, and the Recusal Application should be refused.
Defendants’ submissions in reply
The Defendants’ submissions in reply are summarised below.
The Defendants say that the Plaintiff’s submissions do not refer to, or deal with, the principal ‘sting’ of the allegations made in the 2014 Proceeding which was the serious allegation of breaching the CPA. The Defendants say that these were express and targeted allegations of improper behaviour on the part of Ausbal in the 2014 Proceeding, effectively of the corporations in the United Petroleum Group.
The Defendants submit that a judge who, as counsel or solicitor, has prosecuted allegations of wrongdoing of this type should not subsequently hear proceedings concerning the same litigants. It could be fairly perceived that such a judge might have such an adverse view of the litigant (or its principals) that the judge could not bring an unprejudiced mind to the resolution of the proceeding.[66]
[66]Amos v Wiltshire [2016] QCA 70 at [8], [9].
The fact that the present proceeding is against the United Petroleum Group defending its proprietary rights is an important factor. In the 2014 Proceeding, the allegation was that in defending an easement right over an adjoining property, Ausbal was ‘wasting’ the court’s time and breaching its professional and statutory obligations.
The Defendants submit that it is unfortunate that the Plaintiff has taken such a partisan view of the Recusal Application. According to the Defendants, a number of important points should be made about the Plaintiff’s submissions:
(a) the question of recusal did not arise before the case was set down to be heard by me. Suggesting the appropriate date was when the defendants knew I had made directions in June 2022 is not an appropriate submission from a contradictor;
(b) it is irrelevant to the application that the United Petroleum Group has an ‘extensive history of litigation’;
(c) there is no evidence advanced by Mr Gerhardy that is relevant to the application of the apprehended bias test. It is not envisaged that there will be any substantial delay in the final hearing of this matter with another judicial officer;
(d) even if Mr Gerhardy’s evidence about alleged prejudice arising from any delayed trial date was relevant to the Recusal Application (which it is not), it ought not be accepted in circumstances where:
(iii) there is no evidence of the Plaintiff having formalised any plans for the Hydrogen Service Station referred to in Mr Gerhardy’s affidavit. The Plaintiff’s evidence is limited to evidence of the Plaintiff ‘exploring projects that will support the evolving energy needs of Victoria and south-east Australia’, including a possible ‘public commercial hydrogen refuelling facility’ on the Land;[67]
[67]First Mr Gerhardy Affidavit, [10]-[12].
(iv) there is no evidence of the Plaintiff being in a position to lodge a planning application for the Hydrogen Service Station now, or during the course of 2023, nor is there any evidence that the Plaintiff cannot begin preparing its application now pending the trial of this proceeding;[68] and
(v) the Plaintiff’s application in this proceeding is an application to discharge or modify restrictive covenants so as to permit the development and operation of any service station, together with ‘industry and associated uses’. This is indicative of the fact the Plaintiff’s plans for the Hydrogen Service Station are in the formative stages, and there is no special urgency which ought to be considered when determining the Recusal Application.
[68]First Mr Gerhardy Affidavit, [20]-[21].
As already above, the submissions set out in paragraph 86(d) above were made in the Defendants’ Reply Outline and are addressed in the Second Gerhardy Affidavit.
The Defendants’ disputed the Plaintiff’s submission that Ausbal was partly successful in the 2014 Proceding. True it is that Ausbal had also sought an injunction to prevent Grandsea’s interference with the easement, which was not granted, primarily because her Honour thought it was unnecessary. Ausbal succeeded in its claim that the proposed works would constitute a substantial interference with its rights in respect of the carriageway and obtained a declaration.
The Defendants also clarified what was meant by their submission set out at paragraph 59(b) above. They said that this referred to me managing the conduct of the trial, not the proceeding generally, and specifically did not mean directions hearings.
Consideration
The test for apprehended bias has been stated numerous times, and recently by the High Court in Charisteas:[69]
Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, 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”. 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. 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”; 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.
[69]Charisteas, [11].
Of the ‘convention’ referred to by the Defendants,[70] this proceeding was already fixed for trial before me prior to the Defendants making their application. At the time I fixed the trial before me, I was unaware that the Defendants were part of the United Petroleum Group (I only learned of that when I read the McLean Affidavit) and no issue was raised by the Defendants, so the option of administrative arrangements by the Court to allocate the trial to a different judge was not present.[71]
[70]See paragraph 48 above.
[71]In British American Tobaccco at [71], Brereton J observed that that option was not open to him there either.
As I understand the Defendants’ submissions and the application of the two stage test which the authorities require in cases of apprehended bias, they rely on:
(a) my alleged involvement in the Impugned Assertions as the event or conduct relied upon for what may lead me to decide this proceeding other than on its legal and factual merits; and
(b) the connection between this proceeding and the 2014 Proceeding in terms of Ausbal being a member of the United Petroleum Group, the involvement of Mr McLean in both proceedings, the common directors between Ausbal and the Defendants, and both cases being about protection of property rights, as the logical connection between what is described in (a) above and the feared departure from me deciding this case on its merits.
The Impugned Assertions
The Plaintiff is correct when it submits that there is no evidence that I instructed or was involved in instructing Mr Senathirajah as to the content of his opening submissions, in particular, as to making the Impugned Assertions.
However that is not to the point, nor is it relevant that I cannot recall whether I did so instruct or not, since it is not actual bias that is alleged here.
It is not in dispute that I was the instructing solicitor from KWM for Grandsea in the 2014 Proceeding, including the trial, and I have no difficulty in approaching the Recusal Application on the basis that it is likely I instructed counsel as to those submissions or acceded to them.
It is important to look at what was actually said by Mr Senathirajah as complained of by the Defendants in this case, and to distinguish that from some of the submissions made about it.
When carefully read, the extracts of transcript relied upon do not allege breaches of the paramount duty or the requirement for a proper basis. The Impugned Assertions are that the trial was a waste of time and that Ausbal had not acted reasonably and responsibly. It is apparent from the transcript referred to above that the Impugned Assertions were directed at where matters stood on the opening day of trial. There is nothing said or suggested that the 2014 Proceeding did not have a proper basis at the time it was filed.
At most, and read in context, the assertions go to whether Ausbal was acting reasonably and responsibly in rejecting the open offer made by Grandsea, which was said to mean that there would be no interference with Ausbal’s easement rights if Grandsea’s changes to the proposed development were accepted, which if Grandsea was correct would mean that the trial was a waste of time.
I accept the Plaintiff’s submission that these comments appeared to have been made in passing and note that there is no evidence of there being a formal application made by Grandsea in that regard. Indeed, it does not appear that any objection was taken to the submission at the time,[72] and there is no reference to it in the 2014 Proceeding Reasons. It is plain from a reading of the transcript of the 2014 Proceeding exhibited to the McLean Affidavit that the Plaintiff’s submission that Mr Senathirajah’s submission appears to have been driven by his frustration at not having been able to settle the 2014 Proceeding should be accepted.
[72]There was an objection made by Mr Horgan about the making of an open offer in court, but not as to the matters now relied upon in the Recusal Application.
The Impugned Assertions, of themselves and in context, even if made on my instructions, simply might not lead a fair-minded lay observer, properly informed of the facts and the background, to conclude that I might not bring an impartial mind to the resolution of the issues in dispute in this proceeding.
The required logical connection
The parties’ submissions did not really differentiate between the two stages required for applying the test for apprehended bias, and if they did, it was not always clear which submissions were relied on for which stage. In any event, both stages lead one to the test, which is whether ‘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 to decide.’
I do not accept that it is reasonable to presume, as the Defendants submitted, that I gained special knowledge of facts concerning Mr Silver, Mr Hirsch or the United Petroleum Group during my work for Grandsea in the 2014 Proceeding which I cannot now put out of my mind. First, as the Plaintiff submitted, I acted against Ausbal, not for it. The likelihood of me gaining special knowledge therefore has to be low. The Defendants have not pointed to any actual special knowledge I gained or may have gained, let alone how it is said that I cannot now put it out of my mind.
In the course of argument, I pressed Mr Horgan about this submission and how it was said that I may have special knowledge. He did not address this but said that the Defendants’ reliance on special knowledge was not the principal case and was a subsidiary point.
I do not consider it reasonable to presume that I obtained special knowledge through my work in the 2014 Proceeding that may affect the Defendants in this proceeding or my impartiality now, let alone that it is something that I cannot now put out of my mind. Further, there was nothing to suggest I had obtained ‘knowledge of some prejudicial but inadmissible fact’.[73]
[73]Webb v The Queen, 74.
Nor do I accept that it is reasonable to presume that I formed a negative view of any one or more of Mr McLean, Mr Silver, Mr Hirsh or the United Petroleum Group through the 2014 Proceeding.
True it is that Mr Silver gave evidence in the 2014 Proceeding, but his evidence was tendered without him being required by Grandsea for cross-examination. I do not see how this could lead a fair-minded lay observer to apprehend that I might not be impartial when hearing evidence from the Defendants’ lay witnesses, including Mr Silver. There was nothing specific submitted about me forming a negative view of Mr McLean, Mr Hirsh or the United Petroleum Group.
I do not accept that Mr McLean’s subjective impressions of the 2014 Proceeding, that to him it was heated, unpleasant and acrimonious, are relevant here. The standard to be applied is that of the fair-minded lay observer, and such a person would know that litigation can be all of those things. In any event, there is no evidence that the trial was as he described or that it would appear that way to the lay observer. While acting in a prior proceeding which involved hard fought litigation may be an instance where apprehended bias might be found,[74] other than Mr McLean’s subjective views and possibly the Impugned Assertions, there is nothing to suggest that the 2014 Proceeding was hard fought in the manner described in Contract Mining Services. In that case, it was the judge himself who described the litigation in those terms and he had acted for one of the parties for over two years, that coming to an end only the day before his appointment to the court.[75]
[74]As to this, see paragraph 51(c) above.
[75]Contract Mining Services, [53].
Nor is Mr McLean being aggrieved by the Impugned Assertions relevant, for the same reasons.
I do not accept the Plaintiff’s reliance on the land at the subject of the 2014 Proceeding being a long way from the Land here, or that the Defendants’ land does not adjoin the Land, as it did in the 2014 Proceeding, as relevant to whether the subject matter is similar. However, I do not accept the Defendants’ submission that the subject matter of the two proceedings is similar, or so similar as to give rise to a fear that I may not be impartial. I accept the Plaintiff’s submission that easements are considerably different from restrictive covenants. If one describes a proceeding at a sufficient level of abstraction, it can sound very similar, however it does not assist a proper analysis to say that both are about protecting property rights.
Fundamentally, the Defendants have not addressed how it can be said that I might not bring an impartial and unprejudiced mind to the hearing and determination of this proceeding. They have not attempted to address why it should be assumed that I would put aside my judicial training and my oath to decide cases without fear, favour, affection or ill-will. As stated by Brereton J in British American Tobacco,
a judge is a professional who by training, tradition and oath is required to discard irrelevant, immaterial and prejudicial material and can ordinarily be assumed to comply with the judicial oath.[76]
[76]British American Tobacco, [63].
The cases to which I was taken by Mr Horgan which dealt with a judge’s prior conduct, either as a judge or as counsel in a previous proceeding, were all quite different to the circumstances which are relied upon here. In any event, each case has to be approached on its own circumstances.
There is no evidence that my involvement in the 2014 Proceeding was connected to forming a view about or making submissions about the credit of any persons likely to be called as a witness in this case. Indeed, the only person who it is said might be a witness common to both cases was not even required for cross-examination in the trial of the 2014 Proceeding.
In their context, the Impugned Assertions are not likely to be seen by the fair-minded lay observer as allegations of impropriety which might reasonably give rise to an apprehension that I might not decide this case impartially and without prejudice.
The Defendants submitted that the connection here is that the fair-minded lay observer might reasonably apprehend that from the position taken in the 2014 Proceeding I might take that ‘same view or hold that same prejudice’ in this case.[77]
[77]Transcript, 6 December 2022, 23.2-7.
Mr Horgan submitted that the connection in this case is as clear as the connection was in Charisteas. I do not accept this submission. The facts in Charisteas were vastly different to those pertaining here. That case concerned numerous private interactions between a barrister retained in a case and the judge hearing it, including while the case was underway and judgment was reserved. The High Court found that ‘there is a logical and direct connection between the communications and the feared departure from the trial judge deciding the case on its merits.’[78] Here, the connection relied upon is my involvement, some eight years ago when I was still in private practice, in a trial concerning another entity in a large corporate group where the Impugned Assertions were made but which were not objected to at the time and which went nowhere. This is relied upon for the contention that I might not approach the trial of this proceeding impartially.
[78]Charisteas, [15].
I do not consider that there is a logical connection between the Impugned Assertions and the fear that I may now depart from the obligation to determine this case on its merits.
I do not accept the Plaintiff’s submission that the Defendants have waived their right to object to me hearing and determining this case. There was nothing put to me to say that there had been an express waiver by the Defendants. It is trite law to say that for there to be implied waiver, there must be unequivocal conduct relied upon. I do not regard the fact that the Defendants did not raise this at any of the directions hearings as constituting waiver.
I do consider, however, that the Defendants could have raised their concerns earlier. It must have been apparent by the directions hearing on 20 October 2022 that pre-trial directions would be made that day (indeed, the parties had sent in proposed consent orders for pre-trial directions the day before the hearing), that it was likely that the trial would be fixed that day, and that it was possible I would be the trial judge. The Defendants could have raised their concern at that time: I do not accept their submission that they could not raise it until after the trial had been fixed before me.
During the course of argument, I raised the fact that at paragraph two of their summons, the Defendants sought that the pre-trial directions made by me on 20 October 2022 be vacated and that the affidavits filed in support at that time referred only to recusal as the basis for that. There was nothing in the affidavits filed at that time to suggest that the Defendants sought the vacation of those pre-trial orders on any other basis. The Defendants submitted that by the time of filing the summons, they had become concerned about meeting the timetable, pointing to the Second Brand Affidavit in that regard, but as I said, there was nothing in the First Brand Affidavit or the McLean Affidavit about that at all.
In oral submissions, Mr Townsend submitted that the Recusal Application was a recent invention and a pretext for the Defendants avoiding the proceeding going to trial on 31 January 2023 and to have it heard later. Mr Horgan forcefully rejected this submission.
It seems clear to me that when read as a whole, the relief sought in the Defendants’ summons includes that the trial be held later than currently fixed. The evidence filed in support with the summons referred only to the possibility of my recusal as the basis for this. If I did recuse myself and there was another judge or associate judge available to hear the trial on 31 January 2023, there would be no need to vacate the pre-trial directions already made. It is not surprising, in those circumstances, that the Plaintiff saw this as a means by which the Defendants sought to delay the trial. However, it must be pointed out that by the time of the hearing, the Second Brand Affidavit had been filed and there was evidence of the Defendants’ concerns about maintaining the trial date independent of the Recusal Application.
I do not consider the delay in making the Recusal Application to be one which should be given any weight in making my decision about it. The Defendants could have raised it earlier but the delay was not significant and it has been raised well before trial.
Nor do I consider the prejudice which the Plaintiff says it will suffer if the trial date is vacated to be relevant to the question of whether I should recuse myself. If the test for apprehended bias had been met here, then that means that I should recuse myself. That the Plaintiff might be prejudiced as a consequence by the trial not proceeding on 31 January 2023 is not a proper reason to deny the Recusal Application. I was not taken to any authorities which might suggest otherwise.
Conclusion
For all of the reasons set out above, the Recusal Application will be refused. This is not a case where a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the hearing and determination of this proceeding.
I will hear from the parties as to the appropriate form of orders including as to costs.
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