Yule v Irwin

Case [2016] SASC 30

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

YULE v IRWIN & ORS

[2016] SASC 30

Reasons for Decision of The Honourable Justice Nicholson

3 March 2016

PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - REASONABLE SUSPICION OF BIAS

Application for Judge to recuse himself from further involvement in the proceedings on the basis of apprehended bias.

Held: application dismissed.

Administration and Probate Act 1919 (SA) s 69; Supreme Court Act 1935 (SA), referred to.
Irwin v Yule [2013] SASC 132; Johnson v Johnson [2000] HCA 48, (2000) 201 CLR 488; Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337; British Australian Tobacco Australia Services v Laurie [2011] HCA 2, (2011) 242 CLR 283; IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd [1999] SASC 249, (1999) 78 SASR 151, considered.

YULE v IRWIN & ORS
[2016] SASC 30

Civil

NICHOLSON J.        

Introduction

  1. Ms Yule, the plaintiff, commenced proceedings in 2010, by way of summons, seeking advice and directions pursuant to section 69 of the Administration and Probate Act 1919 (SA) in relation to the estate of the late James Campbell Irwin. She is an executor of the deceased’s estate as are the deceased’s three adult sons: James Alexander Irwin, the first defendant; Angus William Irwin, the second defendant; and Campbell Creaghe Irwin, the third defendant. It is convenient in these reasons to refer to the three sons by their given names, without thereby intending any undue familiarity. A succinct summary of the background events leading to the present proceedings was provided by White J in Irwin v Yule.[1]  It is not necessary to repeat that summary.

    [1] [2013] SASC 132 at [11]-[47].

  2. The Court gave advice and directions to the executors in 2010 and 2012 concerning taxation issues and the winding up of Bonshaw Pty Ltd (“Bonshaw”).  The deceased’s shareholding in Bonshaw was a significant asset in the deceased’s estate.[2]

    [2]    As at the date of death Bonshaw held a very valuable portfolio of public company shares.

  3. On 17 November 2014, Ms Yule filed an application for certain legal fees to be paid out of the estate assets (FDN 27).  On 26 February 2015, James filed an application seeking advice and directions from the Court which was amended by application filed on 3 September 2015 (FDN 40).  These two applications, particularly the latter, have given rise to a number of factual and quite complex legal issues.  They are currently part heard before me (“the part heard applications”).  Oral submissions with respect to both of the part heard applications were made on 27 August 2015.  Campbell resides overseas and is self-represented.  He did not attend this hearing and was given the opportunity to provide written submissions before the hearing and written submissions in reply to the submissions made by the other parties at the hearing upon being provided with a copy of the transcript and…

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Yule v Irwin [2016] SASC 30
Case
[2016] SASC 30
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CaseChat Overview and Summary

In Yule v Irwin, the dispute before the Supreme Court of South Australia involved complex issues related to the administration of a will and the rights of beneficiaries. The primary legal issues before the court were whether the Judge had exhibited any form of bias or prejudgment in the proceedings, which could affect the fairness of the trial. The court had to determine if the actions and statements made by the Judge during the hearings warranted a finding of apprehended bias, particularly in light of communications and interactions with parties and counsel.

The court meticulously examined the grounds for the recusal application, focusing on whether the Judge's conduct had created a reasonable apprehension of bias. It was established that the Judge's interactions with counsel, including asking questions and exploring hypothetical scenarios, were part of a standard judicial practice aimed at gaining a clearer understanding of the case. The court held that these exchanges did not demonstrate any bias, but rather a commitment to ensuring that all aspects of the case were thoroughly examined. Furthermore, the court found that the complaints about the Judge's statements and actions were more reflective of disagreements on the merits of the case rather than any actual bias.

Ultimately, the court rejected the application for recusal, determining that the Judge had not acted in a manner that would give rise to a reasonable apprehension of bias. The court emphasised that the concerns raised by the applicant were centred on the merits of the case rather than the impartiality of the Judge. Therefore, the Judge was not disqualified from proceeding with the case, and the trial continued without further interruption.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J
The fact that my chambers received a copy of the Piper Alderman email that had not been copied by that non-party to Campbell and did not immediately forward a copy to Campbell provides no basis for the recusal application. Prejudgment - exchanges with counsel during submissions on 27 August 2015 hearing Campbell is self-represented and resides overseas. It has been the practice to email him a copy of the transcript of any hearing whether or not he attends, at no charge, and a copy of the orders made at any hearing. Following the 27 August 2015 hearing and after he had been provided with the transcript, Campbell took issue with statements made by counsel and myself. A substantial number of Campbell’s assertions of apprehended bias are based on exchanges I had with Ms Yule, Mr Edmonds-Wilson as counsel for James, and Mr Ower as counsel for Angus, at the hearing on 27 August 2015. In Campbell’s affidavit affirmed on 25 October 2015 he has raised and complained about a number of statements made by counsel. However, and leaving aside the issue that these complaints concern counsel’s statements and not mine, much of that with which Campbell has taken issue relates to the merits of the part heard applications. In essence, Campbell has sought to re-agitate on the recusal application substantive issues arising with respect to the part heard applications. These are not relevant to the question of whether my conduct has given rise to an apprehension of bias. In this respect, Campbell has failed to articulate any logical connection between the various impugned counsel statements and the fear that I would deviate from deciding the issues on anything other than their merits. In addition to complaining about submissions made by counsel at the 27 August 2015 hearing, Campbell has taken issue with a number of observations I made during exchanges with counsel. At the hearing of the recusal application on 18 December 2015, Mr Edmonds-Wilson submitted that Campbell had failed to apprehend the nature of the dialogue that typically takes place between counsel and the bench. I accept that submission. As a means of seeking further information and understanding, it is common practice for a Judge to ask counsel questions, to explore the potential ramifications of counsel’s submissions should they be accepted and to explore hypothetical scenarios in order to better understand a submission. By way of an example, Campbell has taken issue with the following statement I made at the hearing: “I wouldn’t get that undertaking from Campbell, I dare say?” He asserted in his affidavit of 25 October 2015, that this was the main reason for his application on the ground of prejudgment. He submitted that I was unable and not entitled to assume what he will or will not do. The statement needs to be seen in its full context. The exchange with Mr Edmonds-Wilson was as follows.[19][19] Transcript of Proceedings, Yule v Irwin (Supreme Court of South Australia, SCCIV-10-1300, Nicholson J, 27 August 2015) at 95.His Honour: The transfer [of the Glenelg unit] to the beneficiaries would have to be made subject to [Ann Irwin’s] licence [to occupy], or would it automatically be subject to that licence?Mr Edmonds-Wilson: That would come around to the same question as to whether the licence is an interest of land that is capable of being protected by way of caveat if Ms Ann Irwin chooses to do so – traditionally licences haven’t been regarded as giving rise to – His Honour: No, I understand that. So just granting a licence in their capacities as executors would not necessarily achieve the purpose? Mr Edmonds-Wilson: No, that would have to be on condition that they as beneficiaries, also submitted to the same licence. His Honour: That’s right. I have capacities in certain circumstances to direct executors to do things, but not to do direct beneficiaries to do things. Mr Edmonds-Wilson: That would be right. Your Honour though could extract an undertaking offered to the court by at least the two executors/beneficiaries that are before the court – and obviously I would need to take instructions, but I imagine that such undertakings to the court to give such a licence in their capacities as beneficiaries would be forthcoming from – I don’t wish to speak for Mr Ower’s client, but he would no doubt correct me if I’m wrong – His Honour: I wouldn’t get that undertaking from Campbell, I dare say?Mr Edmonds-Wilson: No, you couldn’t.His Honour: Could I direct as a condition of this procedure, direct the executors, in this case the two executors who would comply, to not confer a licence, but confer a lease?

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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