Y v The Secretary, Department of Communities and Justice (No 5)

[2021] NSWDC 117

District Court

New South Wales

Medium Neutral Citation:

Y v The Secretary, Department of Communities and Justice (No 5) [2021] NSWDC 117

Hearing dates:

9 April 2021

Date of orders:

9 April 2021

Decision date:

09 April 2021

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

See paragraph [97] for orders.

Catchwords:

CHILD CARE APPEAL – dismissal of appellant’s interlocutory application seeking judicial recusal -asserting actual and apprehended bias – dismissal of appellant’s further applications seeking discharge of the direct legal representative for the child the subject of the appeal, change of venue, setting aside subpoenas, and other interim relief

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), s 9, s 88, s 105

Civil Procedure Act 2005 (NSW), s 58(2)

Uniform Civil Procedure Rules 2005 (NSW), Pt 33 rule 33.4 of the

Cases Cited:

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 at

Clark v Attorney General of New South Wales (No 2) [2020] NSWCA 135

Commissioner of Police v Hughes [2009] NSWCA 306

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Feldman v Nationwide News Pty Ltd [2020] NSWCA 260

Florida Kitchens Pty Ltd v Number One Cutting Service Pty ltd trading as Number One Marble and Granite

ICAP Australia Pty Ltd v BCG Partners (Australia) Pty Ltd [2009] NSWCA 307

Johnson v Johnson 201 CLR 488; [2000] HCA 48

Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Minister for Immigration & Multicultural Affairs v Jia Legeng 205 CLR 507; [2021] HCA 17

Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235

Olsen v Olsen & Ors [2019] NSWCA 278

Polsen v Harrison [2021] NSWCA 23

Quach v New South Wales Civil and Administrative Tribunal [2020] NSWCA 214

R v Saleam [1989] 16 NSWLR 14

Y v The Secretary, Department of Communities and Justice [2020] NSWDC 674

Y v The Secretary, Department of Communities and Justice (No 2) [2020] NSWDC 762

Y v The Secretary, Department of Communities and Justice (No 3) [2021] NSWDC 19

Y v The Secretary, Department of Communities and Justice (No 4) [2021] NSWDC 81

Category:

Procedural rulings

Parties:

Y (Appellant father)
The Secretary, Department of Communities & Justice (First respondent)
M (Second respondent mother)
Mrs D Clark, Solicitor (Direct Legal Representative of the child the subject of the appeal)

Representation:

Counsel:
Appellant in person
Mr C Christaki (First respondent)
No appearance for the second respondent mother M
Mrs D Clark (Direct Legal Representative of the child)

Solicitors:
The Crown Solicitor (First respondent)
Mrs D Clark (Direct Legal Representative)

File Number(s):

2020/30525

Publication restriction:

Non-publication order imposing restriction on publication of names and identifying details other than litigation pseudonyms: s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW)

Judgment

Table of Contents

Introduction – interlocutory application	[1] – [5]
Non-publication orders	[6] – [7]
Orders now sought by appellant	[8] – [9
Procedural context of the present application	[10] – [17]
Evidence	[18] – [19]
Central issue in the appeal	[20] – [22]
Sequence for consideration of claimed relief	[23] – [25]
General considerations for recusal	[26] – [29]
Relevant events	[30] – [33]
Application for judicial recusal	[34] – [42]
Actual bias	[43] – [52]
Apprehended bias	[53] – [67]
Conclusion on assertions of bias	[68] – [69]
Application for discharge of DLR	[70] – [76]
Application for change of venue	[77] – [84]
Subpoena issues	[85] – [89]
Contact, care and assessment arrangements	[90] – [95]
Disposition	[96]
Orders	[97]

Interlocutory application - Introduction

1. This interlocutory application, brought by an appellant father in an already complicated part-heard child care appeal, has become more complicated and protracted on account of his continued self-representation. The knock-on-effects of such complications have extended to his procedural conduct and aspects of his court room behaviour, which at times became disruptive, abusive, and threatening. The substantive proceedings are governed by the provisions of the Children and Young Persons (Care and Protection) Act 1998 (NSW), (“the Care Act”).

2. In the present application, formally filed on 31 March 2021, the appellant seeks 8 separately identified elements of interlocutory relief. Foremost amongst those elements is an application for judicial recusal grounded upon a claim of bias, his second such application in this Court. This application follows a similar and unsuccessful application in the Children’s Court.

3. The appellant’s first application seeking judicial recusal in this Court was dismissed by me in an ex tempore decision delivered at Newcastle on 2 November 2020, the fifth day of the hearing, applying the principles identified in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63. In an earlier decision in the proceedings, reference has been made to the dismissal of that earlier recusal application: Y v The Secretary, Department of Communities and Justice [2020] NSWDC 674, at [22]-[24].

4. In this second application for recusal the appellant asserts both actual and apprehended bias. The appellant is plainly aware of the difference between the concept that a fair-minded lay observer might conclude the existence of a reasonable apprehension of bias, as distinct from a positive assertion of a claim of actual bias, which in this case he describes as brazen bias.

5. In his present application, the appellant’s asserts the existence of both species of bias. Accordingly, that application must be heard and determined as a matter of priority before any consideration can be given to other issues or further case management orders aimed at facilitating a resumption of the part-heard substantive proceedings, which have become significantly delayed by the appellant’s conduct in the litigation.

Non-publication orders

6. Pursuant to s 105 of the Care Act, previous non-publication orders made in the substantive proceedings and in the subsequent series of interlocutory proceedings continue to apply:

1. Y v The Secretary, Department of Communities and Justice [2020] NSWDC 674;

2. Y v The Secretary, Department of Communities and Justice (No 2) [2020] NSWDC 762;

3. Y v The Secretary, Department of Communities and Justice (No 3) [2021] NSWDC 19;

4. Y v The Secretary, Department of Communities and Justice (No 4) [2021] NSWDC 81.

7. These reasons assume a familiarity with those decisions and the underlying hearings and transcripts which led to those decisions. I considering the appellants present application I have had regard to what has already transpired in the earlier listings of the matter, as recorded in a series of 18 transcripts of the proceedings before me. These reasons are being delivered as a matter of urgency after usual court sitting times, without the benefit of a transcript on the same day of the hearing of the application in question in an endeavour to avoid further delays which might otherwise occur, including delay during a period of pre-arranged leave commencing this afternoon.

Orders for relief now sought by appellant

8. The orders sought in the appellant’s notice of motion filed on 31 March 2021 are set out verbatim, as follows:

1. That first respondent's Subpoena's listed below be set aside pursuant to part 33 rule 33.4 of the UCPR 2005 on grounds that the subpoena is oppressive, too wide, lacks a legitimate forensic purpose, breaches professional relationship privilege and further names "child-subject of proceedings" as part of documents produced.

1. S-1 filed on CS - NSW to produce documents.

2. S-3 filed on Idameneo group pty ltd to produce documents.

3. S-7 filed on DCJ to produce documents.

4. S-9 filed on DCJ to produce documents.

5. S-6 filed on NSW Police force to produce documents.

2. General access granted to parties for subpoenas SI - S9 be revoked and documents produced so far by subpoena be destroyed.

3. That Judicial officer part heard be discharged for brazen bias in advancing respondent's case, making mockery of court process and general incompetence in conducting proceedings in a fair and reasonable manner.

4. That matter be listed and heard in Newcastle registry and all documents transferred.

5. That Direct legal representative be discharged for professional misconduct.

6. That DCJ immediately restore contact visits for Appellant with child on fortnightly basis.

7. An order for DCJ to assess kinship care, alternate care arrangements as nominated previously including family members, friends and relatives of natural parents.

8. An order seeking director of children's clinic to appoint appropriately qualified and culturally suitable child psychologist to seek child's views and prepare a report for court.

9. During argument, the appellant abandoned prayer (5) concerning criticisms of the role and conduct of the child’s direct legal representative, but in his subsequent comments he nevertheless reverted to making scandalous unsupported comments about the direct legal representative. This necessarily requires that something be said about this in my reasons.

Procedural and historical context of the present application

10. The matter has been the subject of successive court listings: 27, 28, 29, 30 October 2020; 2, 3, 4, 5 November 2020; 10, 15, 18 December 2020; 11 January 2021; 5, 9, 18 February 2021; 19, 24 and 31 March 2021.

11. On 24 March 2021, an interlocutory judgment was delivered in the proceedings which had the effect of setting aside a series of subpoenas issued at the behest of the appellant: Y v The Secretary, Department of Communities and Justice (No 4) [2021] NSWDC 81. Following delivery of those reasons, a case management hearing was appointed for 31 March 2021 with the aim of supervising the readiness for resumption of the part-heard appeal, and to make directions for the fixing an early date for that resumption.

12. At the 31 March 2021 directions hearing, the appellant indicated that he had attempted to file his present notice of motion on 30 March 2021, in which he is seeking my recusal, amongst other orders, as outlined at paragraph [8] above. The motion was formally filed on 31 March 2021. This has necessarily required deferring any resumption of the hearing of the appeal pending the determination of the present interlocutory application.

13. In view of the statutory imperative embedded within s 94 of the Care Act requiring expeditious disposition of the proceedings, on 31 March 2021, the appellant was ordered to file any affidavit evidence in support of the present notice of motion by the close of business on 7 April 2021. The hearing of the present application was listed for hearing today, 9 April 2021.

14. Apart from ensuring appropriate use of court time, one of the reasons the appellant was required to file an affidavit in support of his application (apart from the standard requirements for reasonable notice to be given to opposing parties as required by the Uniform Civil Procedure Rules 2005) is that in the past he has repeatedly made unsupported inflammatory statements from the Bar table. In the interest of ensuring clarity, and proper use of Court time, he was informed that any matters he wished to raise along the lines of his present application must be supported by affidavit evidence.

15. As has occurred in respect of a series of previous case management orders made in the proceedings, the appellant has failed to comply with that order.

16. Instead of providing the required affidavit evidence in support of his application on reasonable and timely notice, he emailed an affidavit to my Associate at 7.27am this morning. That affidavit was subsequently presented in court following his arrival this morning, some 40 minutes after the listing time.

17. Those circumstances have had the effect of disrupting other business of the court. In the circumstances, I have overlooked this procedural default in the same way as the record shows that I have previously overlooked other aspects of the appellant’s prior aberrant court room behaviours in the interests of dealing with the issues at hand in a timely manner.

Evidence

18. The only evidence the appellant sought to present in support of his present application is his affidavit sworn on 8 April 20201. It was read without objection. The only factual evidence contained in that affidavit concerned the appellant’s name, his belief as to his age, and his paternal relationship to the child the subject of the appeal. That affidavit did not provide any cogent evidence in support of his notice of motion. Instead, it comprised 36 paragraphs in the nature of submissions which I will refer to in the consideration of his specific claims for relief. The affidavit, at paragraphs 3 and 4, sought to amend the list of subpoenas which the appellant wished to have set aside. He also sought to raise new matters outside the scope of the application.

19. In view of the state and content of the appellant’s affidavit, he was asked to identify the evidence which he relied upon in support of his application. His answer identified the bundles of documents and transcript of the Children’s Court proceedings, the transcript of proceedings before another Judge on 14 August 2020, the transcripts of all the 18 occasions on which I heard the proceedings and the annexures to “all affidavits”. In his oral submissions, which were the subject of frequent digressions, he made scant reference to those materials, and made repeated reference to matters that had already been decided.

Central issue in the appeal

20. As was the case with earlier interlocutory applications in this appeal, it is convenient to again identify the central issue requiring determination in the proceedings: Y v The Secretary, Department of Communities and Justice (No 3) [2021] NSWDC 19 at [10], and Y v The Secretary, Department of Communities and Justice (No 4) [2021] NSWDC 19], at [14]:

1. The central issue in the appeal is whether there is a reasonable prospect of the child being restored into the care of her father. On that issue, the child, now aged 12, through her direct legal representative, Ms Clark, has made it abundantly clear that she does not want to be returned into the parental care of her father. Instead, she has expressed the wish to remain in her present placement, where she has indicated she is happy and content.”

   21. A relevant aspect of the consideration of that central issue is that the appellant has indicated to the Court that he does not wish for his daughter, the child who is the subject of the appeal, to be called as a witness to give oral evidence, and to be cross-examined by him to canvass the underlying factual matters which have led to her removal from his parental care.

   22. On that question, Mrs Clark, the direct legal representative of the child the subject of the proceedings, has on instructions from the appellant’s daughter, informed the court that, amongst other things, she does not want to give oral evidence in the proceedings. In that regard, the appellant has considered that statement and has indicated to the Court that he has accepted his daughter’s stated position. Nevertheless, in the appeal, he seeks to argue that it is in his daughter’s paramount best interests that she be restored into his parental care.

Sequence for consideration of claimed relief

23. The element of interlocutory relief that seeks judicial recusal must be considered and determined as the first question before dealing with any other matters or making any other orders, including case management orders. That is so because if the appellant’s present claim for recusal is upheld, I should, as a consequence, refrain making any further orders in the proceedings.

24. However, if after due consideration, the appellant’s application seeking judicial recusal is determined as requiring dismissal, then the convenient order for considering the remaining elements of interlocutory relief sought by the appellant seems to me to be the consideration of the application to dismiss the child’s direct legal representative, followed by the application to change the venue for the continued hearing of the appeal, the subpoena issues, and the contact and assessment issues raised by the appellant.

25. Before addressing the appellant’s claims of judicial bias, it is appropriate that I refer to some general background considerations for such applications, and then identify some particular events that have arisen in this case that appear to have some relevance to the consideration of the application for recusal.

General considerations concerning applications for recusal

26. In this instance, the starting point for considering an assertion of judicial bias, however formulated, is to recognise that, possibly due to the metaphoric pendulum swings that parties might perceive as having occurred at various points in the dynamic progress or lack of progress of litigation, the appellant has possibly formed the view that if the case he seeks to make continues on its present course, it may be at a greater risk of failure than he might earlier have otherwise appreciated. However, such are the general and well understood vicissitudes of litigation. That said, such considerations without more, are not proper grounds for a recusal application.

27. The authorities suggest that a finding of actual bias occurs rarely. The instigator of a claim of actual bias carries the onus of demonstrating that claim. If actual bias is satisfactorily demonstrated, recusal must inevitably follow. In that regard, as stated in the applicable authorities, my own opinion as to whether actual bias has been shown should not carry determinative weight as the record of the proceedings will speak for itself. My consideration of the claim of actual bias, which will shortly follow after I have identified some relevant events, must necessarily be largely limited to identifying factual matters.

28. In contrast to the position with regard to the claim of actual bias, I must determine the alternative argument on the question of whether the test for establishing the existence of apprehended bias has been satisfactorily met. This requires an understanding of what has occurred in the course of the proceedings when viewed as a whole.

29. A recent decision of the Court of Appeal has distilled the considerations involved in determining an application for recusal on the claimed ground of apprehended bias: Polsen v Harrison [2021] NSWCA 23, at [46]-[47], [51]-[61], citing Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63. In the decision in Polsen v Harrison, at [46], the Court of Appeal helpfully identified the consideration of apprehended bias that is required in a series of 23 propositions. I propose to draw upon those propositions in my consideration of the appellant’s claim of apprehended bias.

Relevant events

30. It must be recognised that a court has the overall obligation of ensuring the appropriate progress of the litigation before it, including the need to ensure appropriate procedural management of ad hoc events and circumstances that may arise from time to time in the course of contested litigation. In this case that obligation includes the need to ensure appropriate administration of the objects of the Care Act according to the circumstances of the case. It is therefore appropriate that I briefly identify some relevant recorded events for context.

31. From the outset of the hearing, and continuing, a series of ad hoc circumstances arose in this case where it became necessary to confine and at times rebuke the appellant for his disruptive and inflammatory behaviour, his untimely compliance and non-compliance with Court orders, his at times abusive, intemperate, provocative, aggressive, contemptuous and insulting behaviour in Court, and his occasional emotional outbursts where he inappropriately raised his voice. His behaviour also included aggressive gesticulations, defiant refusal to desist from gesticulating, and repeatedly, and despite rebuke, making scandalous, disrespectful and disparaging remarks about DoCJ staff, public figures, legal practitioners, and about me, as the presiding judge, as well as criticising the Court’s Registry staff. His statements in Court, and in his affidavit, he made claims of the existence of nefarious and dubious conduct, and incompetence. He has also levelled criticisms at another Judge of the Court who had dealt with case management issues in Newcastle earlier in 2020. In his final submissions in this application, his submissions contained threatening content.

30. I do not propose to refer to the details of those events with any further particularity. It is sufficient that I here record that the remarks and behaviours of the appellant concerning those matters are sufficiently recorded, including in the transcripts of the various listing occasions on which they arose, and they are readily identifiable and reviewable by a superior court in the event that such a need arises, should a party choose to take such a course. It is not appropriate that I seek to here justify my management of the case in the face of the appellant’s vehement complaints of bias.

31. I now turn to a consideration of the elements of relief sought by the appellant in this interlocutory application.

Application for judicial recusal

34. The assertions of actual bias and apprehended bias are not entirely mutually exclusive as they involve some overlapping considerations. For convenient analysis I will give those matters separate consideration.

35. In order to seek to ascertain the precise basis for the appellant’s assertion of bias, following the course adopted in Feldman v Nationwide News Pty Ltd [2020] NSWCA 260, as identified in that case at [31]-[32]. In this case, the appellant was specifically asked to succinctly identify the factual basis of the two limbs of bias he wished to argue, namely how his claim of actual bias arises, and alternatively, the basis upon which a fair-minded lay observer might apprehend that I may not bring an impartial mind to the resolution of the issues requiring determination in the proceedings. He persistently reverted to criticisms of others, seldom acknowledging fault on his part.

36. His affidavit evidence and his oral submissions were not well focussed in that regard.

37. In my view, the appellant’s oral arguments were largely unstructured and included many forays and diversions into side tracks that distracted him from the issues at hand. Attempts to bring him back to address the relevant points of contention were largely unsuccessful, and merely resulted in prolongation of his pursuit of discursive irrelevancies which repeated earlier expressed grievances.

38. At this point it is appropriate that I identify some guiding principles concerning the evaluation of applications for judicial recusal on grounds of bias.

39. It was noted in Feldman v Nationwide News Pty Ltd [2020] NSWCA 260, at [43], that rejection of a litigant’s case [here I interpolate to include the rejection of interlocutory components of that case] “does not and cannot demonstrate actual or apprehended bias.” In Mohareb v Booth [2020] NSWCA 49 at [37] it was stated that an allegation of actual bias must be clearly proved. In Mohareb v Kelso (No 2) [2018] NSWCA 246 at [15], it was stated that “[d]isagreement with the reasoning or the outcome, provided no basis for an assertion of actual bias.”

40. The factual basis for the contention of bias must be clearly articulated: Florida Kitchens Pty Ltd v Number One Cutting Service Pty ltd trading as Number One Marble and Granite, at [17]. Mere repetition of rejected arguments on issues that have already been determined, is not a sufficient basis: Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235, at [48].

41. In Clark v Attorney General of New South Wales (No 2) [2020] NSWCA 135, at [13], the concepts of apprehended bias and actual bias were identified as follows:

“13 The test of apprehension of bias identified in Ebner is objective and does not require or permit an assessment of the judge’s state of mind. Actual bias is addressed quite differently. As explained in Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability: [7]

“A claim of actual bias requires proof that a decision-maker approached the issues with a closed mind or had prejudged them and, for reasons of either partiality in favour of a party or some other form of prejudice affecting the decision, could not be swayed by the evidence in the case at hand. ... Actual bias requires an assessment of the state of mind and actual views of a decision-maker.”

[References omitted]

42. I now turn to the consideration of the two limbs of judicial bias that are claimed by the appellant.

The assertion of actual bias

43. The appellant confirmed that his use of the expression brazen bias in his notice of motion was intended to mean actual bias and outrageous bias.

44. Insofar as the appellant’s arguments relied upon the record of the proceedings to date and my earlier decisions in the case, it is not appropriate for me to seek to justify those earlier decisions. The record is capable of analysis on its face without further commentary from me as the decision maker whose decisions are being attacked.

45. One aspect of the appellant’s claim of actual bias invokes a claim of alleged procedural unfairness and another aspect invokes a claim that in making decisions in care matters I have favoured the Secretary, being the Secretary’s preferred Judge for such cases, here running the Secretary’s case for him. The latter proposition is plainly absurd, as a proper search of my childcare appeal decisions published on the Caselaw site will reveal. As to the former proposition, I reject that proposition and the suggestion of running the case for the Secretary without more being said as the record must speak for itself.

46. In the paragraphs that follow, some relevant statements from guiding authorities are identified with regard to claims of actual bias.

47. In Mohareb v Booth [2020] NSWCA 49, at [37], following Reid Commercial Club (Albury) Ltd [2014] NSWCA 98, at [68]-[74], it was observed that:

1. An allegation of actual bias must be clearly proved. Such a finding is not made lightly. Adverse findings, even adverse findings that are contrary to the evidence or unreasonable or hopelessly flawed, will not be sufficient. The circumstances in which actual bias is established will be rare and exceptional.

   48. In Olsen v Olsen & Ors [2019] NSWCA 278, at [35], the principles to be followed for a finding concerning a finding of actual bias were identified as follows:

2. It was common ground that the principles in relation to a finding of actual bias were correctly expounded by Gleeson JA in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]-[74] as follows:

   “68 A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 (Sun v Minister) at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds[2007] NSWCA 16 at [97] and the authorities there cited.

   69 Where the issue is actual bias in the form of prejudgment, the appellant had to establish that the primary judge was ‘so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented’: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [72] per Gleeson CJ and Gummow J (Hayne J agreeing at [176]). See also Kirby J at [127].

   70 As Gleeson CJ and Gummow J observed in that case at [71]:

   The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion.

   71 In the same case, Hayne J noted at [185] the several distinct elements underlying the assertion that a decision-maker has prejudged or will prejudge an issue, or the assertion that there is a real likelihood that a reasonable observer might reach that conclusion. The first is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. The second is the contention that the decision-maker will apply that opinion to the matter in issue. The third is the contention that a decision-maker will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case.

   72 His Honour observed at [186] that allegations of actual bias through prejudgment often fail at the third step he had identified. This was because notwithstanding whatever expression of preconceived opinions by the decision-maker, it does not follow that the evidence will be disregarded.

   73 The test of actual bias in the form of prejudgment requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 at 437 [33]. However, actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real: Bilgin v Minister for Immigration and Multicultural Affairs(1997) 149 ALR 281 at 289–290 per Finkelstein J; Sun v Minister at 127 per Burchett J and 135 per North J. As Finkelstein J said in Bilgin v Minister at 290:

   The wrong involved is the failure to decide a case impartially. Whether that failure was deliberate or not should be beside the point insofar as the validity of the decision is concerned.

   74 The circumstances in which actual bias can be demonstrated solely from the published reasons for decision must be considered to be rare and exceptional: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 668 at [38] per von Doussa J, who explained:

   … Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party‘s interests such as a hostile attitude throughout the hearing or ... an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias.”

[Citations omitted]

49. In light of those identified principles, in conformity with convention and authority, it would be inappropriate and invidious for me to determine the question of actual bias other than on an abstract level even though I do not accept the appellant’s assertion.

50. Such matters can only be authoritatively determined elsewhere by others as those are matters that are within the exclusive remit of either a judicial review or an appeal by leave of the Court of Appeal. The appellant is well aware of those avenues of potential remedy if he remains aggrieved. That said, it is appropriate that I make some reference to certain matters that have arisen in the proceedings. I have briefly done so already, as outlined at paragraph [31] above.

51. I should add that it is not appropriate for me to comment upon the correctness or otherwise of my earlier decisions in this case, or to defend my interventions and interruptions of the appellant’s court room statements and misbehaviours. The circumstances are sufficiently identified in the record of the proceedings comprising the transcripts, and in the descriptions within my earlier reasons for decision.

52. In the circumstances and in light of the authorities I have cited, it is sufficient for me to state that on my review of the appellant’s evidence and arguments, I decline to recuse myself on the claimed ground of actual bias, brazen or otherwise.

The assertion of apprehended bias

53. In Johnson v Johnson 201 CLR 488; [2000] HCA 48, at [13], in the context of apprehended bias, the judicial intervention in proceedings which led to a claim of apprehended bias in that case was discussed as follows:

1. Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly, Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case." Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. 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."

[References omitted]

54. In Olsen v Olsen & Ors [2019] NSWCA 278, at [35] the consideration of the question of apprehended bias was described as follows:

“The test of apprehended bias does not require a determination of the actual state of mind of the judge. Rather, the question is whether a fair-minded and informed, lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues in the case (Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [12]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]; Michael Wilson & Partners Ltd v Nicholls(2011) 244 CLR 427; [2011] HCA 48 at [31]; and Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [12], [57]). The question is whether the informed and fair-minded lay observer might apprehend that the primary judge might have predetermined the issue, such that he or she was not open to persuasion, rather than whether he or she did so.”

55. On the issue of apprehended bias, a logical connection must be established between the fact of dismissal of the appellant’s earlier applications and the remaining issues to be determined “such that a fair-minded lay person might reasonably apprehend that the members of the Court might not bring an impartial and unprejudiced mind to the resolution of the [remaining] questions for decision…” : Quach v New South Wales Civil and Administrative Tribunal [2020] NSWCA 214, at [6], following Ebner v Official Trustee in Bankruptcy at [8]; Michael Wilson at [32]-[33]; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 at [139].

56. Those and other relevant authorities on apprehended bias were helpfully considered and summarised by the Court of Appeal in Polsen v Harrison [2021] NSWCA 23, as has already referred to at paragraph [29] above.

57. I find that the appellant has not successfully engaged the beneficial applicability to him of any of the propositions identified in Polsen v Harrison, at paragraph [45] of that decision, to support a claim of apprehended bias.

58. A short history of the various hearings before me thus far has been the dismissal of the Secretary’s dismissal application because a hearing on the merits was required. The remainder of the listing time before me has been largely taken up with managing the appellant’s procedural defaults and behaviours, as well as considering and dismissing applications brought by him after they were determined to be meritless, for reasons stated and published at those times.

59. At this point it is relevant that I refer to, and adopt as correct, a point made at paragraph [16] of the written submissions provided by counsel for the Secretary which stated: “The Court has ‘bent over backwards’ to accommodate the issues raised by the plaintiff”.

60. The appellant’s apparent dissatisfaction with the various procedural events that have occurred in the proceedings has possibly influenced his various litigation misbehaviours and his conduct as described at paragraph [31] above.

61. It is clear that it is the appellant’s earnest desire that another Judge be allocated to hear his appeal. In invoking his own provocative distracting behaviour as the basis for an application for recusal, it seems to me that he has created for demolition by him, a straw man argument, which must be rejected. It has been his own behaviours and non-compliances that have resulted in a need for him to be reminded, not just once, to confine himself and his litigation efforts to the relevant issues. He has obviously taken offence to such rebukes.

62. It is not for the appellant to choose which judge will hear his case on the basis of his subjective perception as to which way he thinks the wind is blowing, either in the direction that he has set for his metaphoric sails, or against that direction, especially where his substantive appeal has barely commenced because of his distractive procedural behaviour.

63. Where bias is asserted, the essential question to be considered is whether the decision-maker’s mind is open to persuasion or is affected by pre-judgment: Minister for Immigration & Multicultural Affairs v Jia Legeng 205 CLR 507; [2021] HCA 17, at [71], [72], [127], [176].

64. Whilst observing the already identified caveat against defending my own decisions in this case, it must be said that it is difficult to see how, on a factual basis, pre-judgment could reasonably be asserted in this case when I have not yet been provided with the totality of the evidence, largely due to procedural defaults on the part of the appellant. In my view, the assertion of apprehended bias therefore fails at the third analytical step referred to in Olsen v Olsen, at [35], citing paragraphs [71]-[72] of the decision of the High Court in the Minister for Immigration and Multicultural Affairs v Jia Legeng, cited at [48] above.

65. I consider that a fair-minded independent lay observer, being aware of those matters, would not reach a conclusion that a state of judicial pre-judgment or apprehended bias has been reached where such an observer would be aware of the duties and responsibilities of a judge in the described circumstances: Polsen v Harrison, at paragraph [46], sub-paragraphs (iii), (iv), (viii), (xii), (xiv), (xv – xvi) and (xx – xxiii).

66. Shortly stated, the applicant for an order for judicial recusal must show, not lightly, that there is a “realistic possibility” that a fair-minded lay observer “might” apprehend, knowing the totality of the circumstances of the case, that there is an apprehension of bias which is not “fanciful or extravagant” but is instead based on the established facts of the matter, that is a “firmly established” apprehension of bias as distinct from a fanciful or a speculative possibility, where interventions by a judge, in isolation, will not necessarily create an apprehension of bias to displace the proposition that the judge will, duty bound, hear the case and consider the totality of the evidence, with impartiality.

67. On the objective facts, the appellant has not satisfied that test.

Conclusion concerning appellant’s assertions of bias

68. For the above reasons, on the evidence, I consider that the appellant’s respective claims of actual and apprehended bias have not been satisfactorily demonstrated and those claims should be rejected, noting that this decision is itself amenable to judicial review should a party choose to follow that course. I decline to recuse myself.

68. Having reached the conclusion that the claims of bias should be rejected, I now turn to a consideration of the remaining elements of the appellant’s application for interlocutory relief.

Application for discharge of the child’s direct legal representative

70. Although the appellant abandoned the application to remove Mrs Clark as the direct legal representative, he nevertheless persisted with his scandalous unsupported criticisms of her in that role. It is therefore appropriate that something be said about those issues.

71. Since the child the subject of the appeal has reached the significant statutory age of 12 years, and she is therefore presumed to be capable of giving instructions in the appeal, the Children’s Court, in its supervisory jurisdiction, has appointed Mrs Clark as the child’s direct legal representative: s 99 of the Care Act. That same section empowers the Children’s Court, or this Court sitting as the Children’s Court, to withdraw that appointment at any time if circumstances demonstrate or warrant such a course.

72. As the child’s appointed direct legal representative, Mrs Clark has the responsibility of ensuring that the child’s views on relevant issues that arise in the proceedings are placed before the court, and to also ensure that all relevant evidence is adduced, and if necessary, tested, in accordance with the child’s instructions: s 99D of the Care Act.

73. In that capacity, Mrs Clark has clearly conveyed the instructions of the child to the effect that the child does not want to give evidence in the appeal and wishes the appeal to fail in the hope that in the future, some kind of relationship with her father, the appellant, may be salvageable. The appellant is plainly disaffected with the position Mrs Clark has conveyed in accordance with her instructions. As a consequence, he sought Mrs Clark’s removal as the child’s direct legal representative.

74. In that regard, the appellant has, in the course of various listings, has proceeded to make unsupported and unsubstantiated allegations of unethical and unlawful conduct on the part of Mrs Clark. This is despite having been advised that if such inflammatory and scandalous allegations are to be relied upon by him, they must be supported by reliable evidence, having regard to the gravity of such assertions: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. No such evidence has been forthcoming from the appellant.

75. My review of the appellant’s oral statements made in court, and in his affidavit evidence, inexorably lead to the conclusion that he has not produced any evidence to support the allegations of misconduct he seeks to make in relation to Mrs Clark in her capacity as the child’s direct legal representative, or otherwise.

76. Accordingly, this unmeritorious element of the appellant’s application seeking Mrs Clark’s removal as the child’s direct legal representative amounts to nothing more than a baseless distraction which has resulted in further delay and cost. This element of the appellant’s claim for interlocutory relief must therefore be rejected.

Application for change of venue from Sydney to Newcastle

77. The relevant background to the application for a change of venue to Newcastle is as follows. The Children’s Court proceedings were concluded in Parramatta and Broadmeadow. The appellant’s summons commencing the appeal was filed at the Newcastle registry of the District Court. The appellant is domiciled in that area. He nominated that venue for the hearing of the appeal, as was his right, subject to the occurrence of supervening events, and subject to the case management and listing practices requirements of the Court having regard to relevant supervening circumstances.

78. The appeal was originally listed for a priority hearing in a running civil list on circuit in Newcastle commencing on 26 October 2020. On that day, whilst the list was called over and whilst short matters were dealt with, the participating parties to the appeal were ordered to attend a compulsory dispute resolution conference aimed at either resolving the appeal if possible, or at least narrowing the issues requiring determination: s 37 of the Care Act.

79. That dispute resolution conference proved unsuccessful, and the matter was then called on and the hearing of the appeal commenced on 27 October 2020. Since then, the manner in which the appeal has proceeded, or has not proceeded, is a matter of record, as appears from the content of the series of my published decisions in the matter. As a result, applying case management principles and having due regard to the Court’s rostering arrangements, an order was made for the remainder of the part-heard appeal to be brought back to Sydney for continuation and completion.

80. No doubt that decision was inconvenient to the appellant. Nevertheless, it is a matter over which the appellant can have little if any control, particularly since the practice of the court is for circuit matters that are estimated to take 5 days or more to be routinely transferred to be heard in Sydney.

81. The case management reasons for transferring the proceedings part-heard to Sydney took those matters into account, as well as taking into account the protracted nature of the appeal, and the need to ensure that the dictates of justice were appropriately served having regard to the interests of all parties, whilst also having due regard to the resources available to the court: s 58(2) of the Civil Procedure Act 2005 (NSW).

82. The appellant now seeks to have the venue for the hearing changed back to Newcastle. The appellant’s quest for a change of venue is misguided and misplaced. A change of venue became necessary on 5 November 2020 because the allocated circuit sittings in Newcastle came to an end. The expanded estimate of the time required for completion of the hearing of the appeal necessitated a change in the venue to Sydney, in accordance with the Court’s standard practice in such matters. This raised a question of court resources the allocation of which, is a matter the appellant can have very little if any say.

83. Whilst the change of venue has undoubtedly caused inconvenience and additional expense to the appellant, those consequences are not of themselves determinative. The overriding consideration in this case is the child’s paramount best interests which are best achieved by a timely finalisation of the appeal, a goal which unfortunately continues to remain elusive for so long as the appellant continues to distract himself, the Court, and the other parties, with his pursuit of issues that are extraneous to the previously identified central issue in the appeal, as identified at paragraph [21] above.

84. No compelling reason has been advanced by the appellant to justify a change of venue. Accordingly, this element of his claim for relief must be refused.

The subpoena issues

85. The appellant seeks to have an amended list of a series of subpoenas issued at the request of the Secretary of the Department of Communities and Justice set aside on various argued grounds, including claims of oppression, excessive width of scope, lack of legitimate forensic purpose, and breach of “professional relationship privilege”. He also seeks a revocation of earlier orders enabling access to those subpoenas. He also raised the additional ground that the child the subject of the appeal is named in the subpoenaed material. That latter ground is misconceived, particularly having regard to binding non-publication orders that have already made and confirmed at all relevant stages of these proceedings.

86. The subpoenas in question, which are listed and identified at sub-paragraphs (1) and (2) of paragraph [8] above, as amended, concern documents held by the Crown Solicitor, the Department, NSW Police, and certain medical records.

87. Having regard to the central issue for determination in this appeal, it is plain that those subpoenas issued on behalf of the Secretary are “on the cards” and without speculation, materially relevant to that central issue: Commissioner of Police v Hughes [2009] NSWCA 306, at [74]; ICAP Australia Pty Ltd v BCG Partners (Australia) Pty Ltd [2009] NSWCA 307, at [9]; R v Saleam [1989] 16 NSWLR 14, p 18, pp 20 – 21.

88. At this point I make the observation that the parties have already been granted general access to that subpoenaed material and it appears that inspection and copying has already occurred, at least to some degree. Therefore, it would be futile, to revoke the previous order for access.

89. Accordingly, the appellant’s request to have the described subpoenas set aside and to seek a revocation of the earlier orders permitting access to the documents produced in answer to those subpoenas, must be rejected.

Contact, care and assessment arrangements

90. The remainder of the categories of relief sought by the appellant in his interlocutory application involve a request to change the frequency of his permitted contact visits, a request to consider a different care placement with persons other than the presently allocated carers, and a request to obtain a professional opinion and report on the views of the child who is the subject of the appeal.

91. This aspect of the appellant’s application for interlocutory relief is in my opinion misconceived. The question of frequency of the appellant’s contact visits involves an assessment of the safety and wellbeing of the child the subject of the appeal. That is at present within the reasonable remit of the Secretary and his delegates based on the evidence available to those persons. At present, I do not have sufficient evidence before me at this stage to displace or overturn the terms of an existing and approved care plan. At this point, absent cogent evidence, it is premature to make an order for the preparation of an amended care plan to permit that which the appellant now seeks.

92. Similar considerations apply to the appellant’s quest for replacing the child’s existing carers.

93. On the question of whether the child’s views should be sought in the form of a report by a psychologist or someone otherwise suitably qualified, if the appellant is to displace the validity of the factual matters conveyed by Mrs Clark as the child’s direct legal representative, he must produce evidence or argument which satisfactorily demonstrates the need and justification for the course he seeks. He has done neither of those things and he carries the onus of proof in respect of those matters.

94. In that regard, as Mrs Clark correctly points out, any further assessment would depend upon the co-operation of the appellant’s daughter. This seems to be an unlikely prospect at this point.

95. I have therefore come to the view that on the present state of the evidence, these latter issues are not suitable or amenable to interlocutory determination. They must remain the subject of the substantive appeal.

Disposition

96. The appellant’s notice of motion filed on 31 March 2021 must be dismissed. In this case the Secretary has already signalled the intention to seek an order for costs on certain matters on account of a claim of exceptional circumstances. Given the terms of s 88 of the Care Act, that question must be reserved for later determination on due notice pending the outcome of the substantive appeal.

Orders

97. I make the following orders:

1. The appellant’s notice of motion filed on 31 March 2021 is dismissed.

2. I will hear the parties on the question of costs after the substantive appeal has been determined;

3. I will now make the case management order that facilitates the resumption of the hearing of the appeal to commence on 24 May 2021, noting this is a sufficient interval of time to enable the parties to direct their energies to achieve readiness for a hearing to completion of the appeal.

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Decision last updated: 09 April 2021