Yule v Irwin

[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 other relevant materials.  Campbell availed himself of this latter opportunity.

4. Following the receipt of Campbell’s written submissions but before I formally reserved my decision on the part heard applications, Campbell filed, on 27 October 2015, an application (FDN 42) and an affidavit in support (FDN 41). The application sought the following two orders:

   1.   The Third Interlocutory applications made by Mark Jappe be rejected on the grounds of misrepresentation to the Court. I am not represented by Campatta [sic] Lempens and have not been for many months. I am self represented.

   2.   That His Honour recuse himself on the grounds of apprehended bias.

5. On 18 December 2015, I heard submissions from the parties on Campbell’s application. All parties appeared either through counsel or (in the case of Ms Yule and Campbell) in person.  At the close of oral submissions, I dismissed the application and stated that I would publish reasons at a later date. These are my reasons.  Since the filing of the application for recusal Campbell has filed three more interlocutory applications which have not yet been determined.

   Misrepresentation to the Court

6. FDN 40, filed by James, includes the address for service for Campbell as “c/- of Camatta Lempens, Level 1, 345 King William Street Adelaide SA 5000”. Campbell was represented by Camatta Lempens in early 2015 but, on 12 May 2015, filed a notice of acting in person. Campbell seeks an order that James’ application be rejected on the ground that his recording of the incorrect address for service amounts to a misrepresentation to the Court. The complaint is trivial and has no bearing on the merits of James’ part heard application.  It was for this reason that I made an order dismissing order 1 as sought in Campbell’s application.

   The test for apprehended bias

7. Campbell’s application that I recuse myself from further participation in this matter is based on the ground of apprehended bias. The well-established test for determining whether a Judge should recuse himself or herself on the basis of apprehended bias was explained in the plurality’s judgment in the High Court in Johnson v Johnson.[3]

   It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.[4]

   That test has been adopted, in preference to a differently expressed test that has been applied in England,[5] for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done.[6] It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”.[7] The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.[8]

   [3]    Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11]-[12] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

   [4]    Eg, Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v NSW Bar Association (1983) 151 CLR 288; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41.

   [5]    Cf, Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451.

   [6]    Cf, R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259, per Lord Hewart CJ.

   [7]    R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263, per Barwick CJ, Gibbs, Stephen and Mason JJ.

   [8]    Vakuata v Kelly (1988) 13 NSWLR 502 at 527, per McHugh JA, adopted in Vakuata v Kelly (1989) 167 CLR 568 at 584-585 (Toohey J).

8. The approach outlined in Johnson was adopted and applied by the High Court in Ebner v Official Trustee in Bankruptcy.[9]

   Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), 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.[10] That principle gives effect to the requirement that justice should both be done and be seen to be done,[11] a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

   [9] [2000] HCA 63; (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

   [10]   R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v New South Wales Bar Association (1983) 151 CLR 288; Re JRL; Ex parte CJL (1986) 161 CLR 342; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41; Johnson v Johnson [2000] HCA 48, (2000) 74 ALJR 1380, 174 ALR 655.

   [11]   R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259 per Lord Hewart CJ.

9. The test to be applied, as articulated in Johnson and Ebner involves a two stage process.[12]  The first step requires the identification of something that might lead a Judge to decide a case other than on its legal and factual merits.  The second is the identification of a logical connection between that something and the feared deviation from the course of deciding the case on its merits.  Any reasonable apprehension of bias must be firmly established before disqualification will follow.[13]

   [12]   Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

   [13]   British Australian Tobacco Australia Services v Laurie [2011] HCA 2; (2011) 242 CLR 283 at [44]-[45].

10. Whilst Campbell’s application sought my recusal on the basis of apprehended bias, there were mentions or assertions during oral submissions and in correspondence with my chambers of actual bias.  Usually, the issue of whether or not a Judge should recuse himself or herself can be determined on the reasonable apprehension test without the need to consider actual bias.  In IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd, Doyle CJ (with whose reasons Prior and Mullighan JJ agreed) said this[14]

    Despite what [Deane J] said,[15] it may be that in exceptional circumstances it will be necessary or appropriate for a court to entertain a submission of actual bias on the part of a judicial officer and to make the appropriate finding.  However, I wholeheartedly agree with [Deane J’s] observation that the common law test for bias is of sufficient width to make it unnecessary for an allegation of actual bias to be made. If the reasonable apprehension test is satisfied, it will be unnecessary to consider an allegation of actual bias. If that test is not satisfied, I find it difficult to understand how an allegation of actual bias could succeed.

    [14] [1999] SASC 249; (1999) 78 SASR 151 at [211].

    [15]   In Webb v The Queen [1994] HCA 30 at [11]; (1994) 181 CLR 41 at 74, Deane J observed “I would, however, indicate that I consider that the reasonable apprehension test is of such broad and general application that it is unnecessary and inappropriate for an allegation of actual bias to be raised before or determined by an appellate court.”

    Has a proper basis for recusal been made out?

11. Campbell raised a number of assertions of apprehended bias in his oral submissions and his affidavit affirmed on 25 October 2015.  For the purpose of these reasons, I have categorised Campbell’s assertions into the following topics: the existence of a conflict of interest; whether Campbell has not been afforded due process; and prejudgment of the issues to be determined.

    Conflict of interest

12. Campbell asserts that members of the judiciary in South Australia have a conflict of interest in dealing with this matter because both current and former members of the Supreme Court of South Australia have dealt with this matter or other proceedings involving the same or similar parties. However, Campbell failed to identify how the participation of other members of the South Australian judiciary is, in any way, relevant to my participation.

13. Campbell’s submission that I have a conflict of interest is misconceived. I have yet to make any substantive determination in the matter.  To date, I have made interlocutory directions designed to bring the part heard applications and Campbell’s applications to hearing.  I have made interlocutory directions contrary to Campbell’s wishes.  However, nothing by way of evidence or submission put forward by Campbell can support a finding that, for this or any other reason, it might reasonably be apprehended that I might not bring an impartial mind to the determination of the part heard applications.

14. There is no logical connection between either the directions I have made to this point or the past participation of other members of the judiciary in matters involving any of the parties, including Campbell, and any feared deviation from the course of deciding the part heard applications on their merits.  Campbell has not identified any extra-curial relationship between me and any other party or their legal representative that might give rise to a perceived conflict of interest on my part.

15. Campbell submitted (insofar as I understand the submission) that I would be acting with a conflict of interest if I were to find in favour of the first defendant, James, on his part heard application.  For example, Campbell asserted that there would be a conflict of interest if I made a finding (that is, I infer, provided advice and directions to the executors) contrary to Campbell’s interest as beneficiary with respect to the method by which the executors might deal with certain real property owned by Bonshaw as part of their administration of the estate.  Any advice and directions I might give, even if contrary to Campbell’s interest or wishes, is to be based on the submissions and evidence provided by the parties.  If I were to err in fact or law, any party would be entitled to exercise such rights of appeal as may be available pursuant to the Supreme Court Act 1935 (SA) and the Rules of Court. Campbell’s concern in this regard does not give rise to an apprehension of bias.

    Due process – opportunity to reply

16. Another complaint of apprehended of bias is based on an assertion that Campbell has been disadvantaged in not being afforded a reasonable opportunity to reply to the submissions made by the other parties with respect to the part heard applications.

17. On 26 May 2015, I made various directions by way of a timetable for the filing of affidavit evidence and submissions relevant to the part heard applications. The first defendant, James, provided his submissions by email of 19 August 2005, 12 days late. As a result, Campbell and the other parties were left with less than a week until the hearing within which to respond rather than the two weeks provided for in the directions timetable.  Given the obvious complexities involved and the need for all parties to be offered a proper opportunity to present their case, I accepted James’ late written submissions.  Campbell did not provide a written submission before the hearing.  Having said that, it needs to be understood that Campbell had filed two very substantial affidavits.[16]  As is commonly experienced with self-represented litigants, the line between material that is truly evidentiary and material that can only be treated as submission was not observed.  The affidavit filed by Campbell prior to the hearing on 27 August 2015 contained much of Campbell’s argument in opposition to the orders sought by James.

    [16]   Second and third affidavits of Campbell Creaghe Irwin affirmed on 29 March 2015 and 21 May 2015 respectively.

18. I heard oral submissions from all parties except Campbell on 27 August 2015.  At the conclusion of the hearing I made the following directions.[17]

    1.    The plaintiff has liberty to file a further affidavit relating to the location of further documents concerning the plaintiff's appointment to Bonshaw Pty Ltd.

    2.    An amended third interlocutory application and consequential revised proposed minutes of order, taking into account of the matters indicated during argument as being abandoned, and also taking account of the concern raised by the Court with respect to the preservation of Ann Irwin's position concerning the licence over the half interest in the Glenelg property, which originates from Bonshaw Pty Ltd, are to be filed by the first defendant within seven days.

    3.    A supplementary submission dealing with the Ann Irwin licence issue is also to be filed by the first defendant within seven days.

    4.    The plaintiff and the second defendant are to indicate as soon as practicable after they receive the documents within Orders 2 and 3, whether they wish to be heard further on the issues.

    5.    A copy of the transcript of the hearing, a copy of these orders and a copy of the documents referred to in Orders 1, 2 and 3 above, if provided, are to be provided to the third defendant.

    6.    The third defendant will have 28 days from the date in which he receives the materials referred to in Order 5 to provide any further submissions by way of a reply to the parties' submissions.

    7.    Liberty to apply.

    [17]   Order 6 was made after the hearing.

19. On 2 September 2015, Campbell sent an email to my chambers attaching a document by way of submission titled “BACKGROUND TO IRWIN MATTER”.  On 7 September 2015, my Associate sent an email to Campbell.  The email attached the transcript of the hearing on 27 August 2015, the Record of Outcome containing the orders made by me following the hearing, and further documents filed by other parties after the hearing. Campbell was allowed 28 days from the date of that email (7 September 2015) within which to provide my chambers with any written submissions.  In the email, my Associate advised that once Campbell’s submissions had been received, I would formally reserve my decision on the part heard applications.

20. Campbell sent further emails to my chambers during the month of September 2015. He requested further clarification as to the date when his submission was due and sought confirmation of the communications my chambers had received from Campbell that contained material by way of submission. On 21 September 2015, my Associate sent an email to Campbell confirming that his submissions were due on 5 October 2015 but that he may be provided with a reasonable extension, if it was required. The list of Campbell’s communications containing material by way of submission and received by my chambers was provided to him by email dated 25 September 2015.  In this email, Campbell was asked to identify any additional documents he wished to rely on that were not on the list of received documents.  My Associate also informed Campbell that I had extended the time by which he was to provide his submissions to 23 October 2015.

21. Campbell provided his written submissions by email dated 23 October 2015. He also provided, by emails dated 23 October 2015 and 25 October 2015 further documents on which he wished to rely with respect to the part heard applications. 

22. Given that I had accepted James’ written submissions notwithstanding that they were filed late and that Campbell had not appeared at the hearing on 27 August 2015, it was necessary to provide Campbell with sufficient opportunity to respond to the submissions made by the parties on the part heard applications.  He was allowed more than six weeks to respond to the submissions made by the parties at the hearing and longer than that in order to respond James’ written submissions provided prior to the hearing. 

23. I reiterate that I am yet to determine the part heard applications.  Indeed, I have not yet reserved my decision.  Any concern as to whether Campbell or any other party may have been denied procedural fairness so as to give rise to a miscarriage of justice is premature.  Further, any such concern can be ventilated by way of appeal in due course. 

1. I am not satisfied on the evidence before me that a fair-minded lay observer might reasonably apprehend, on the basis of the procedural history to this point, that I might not bring an impartial mind to the determination of the part heard applications.  Nothing has been identified to suggest that I might ultimately decide issues involving Campbell other than on their legal and factual merits.  Nor is there any logical connection between my conduct of the procedural matters to this point and any feared deviation from deciding the issues on their merits.

   Due process - refusal of request for audio recording of 27 August 2015 hearing

2. Following receipt of the transcript by email from my chambers, Campbell requested a copy of the “taped version” of the hearing before me on 27 August 2015.  In correspondence with my chambers and during the recusal hearing, Campbell raised two concerns: first, he had experienced inaccuracies in transcripts in the past and wanted to check for any transcription inaccuracies on this occasion; and second, he wanted to assess the tone of voice used by me during my interactions with counsel.  I refused Campbell’s request to be provided with a copy of the recording(s) from which transcript was transcribed.

3. Nonetheless, as audio recordings are automatically destroyed four months after the hearing, I made an order on 29 September 2015 that the audio recording of the hearing of 27 August 2015 was to be preserved until further order.

4. I am not persuaded that my refusal to make a direction that Campbell be provided with the audio recording, in the circumstances (whether such refusal was or was not justifiable) satisfies either the first or the second limb of the apprehended bias test.  A fair-minded lay observer would not, for this reason, reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the part heard applications. 

   Due process – communication with my chambers

5. During his oral submissions, Campbell submitted that one of the grounds of his application was that he had not been made aware of an email communication that had been directed to my chambers by a non-party to the proceedings without the consent of all defendants.  Campbell was informed of the fact and content of this communication by the solicitor on file for Angus.  However, he maintained that the failure by my chambers to forward a copy of the communication to him gave rise to an apprehension of bias on my part. 

6. On 2 November 2015, my Associate received a telephone call from a solicitor at Piper Alderman acting on behalf of Ann Irwin, the mother of the three defendants and the wife of the deceased. The solicitor advised that he would be sending to my chambers, by email, a letter on behalf of Ann Irwin containing information relevant to the part heard applications.[18] The unsolicited email was received later that day (“the Piper Alderman email”). This email was copied by Piper Alderman to Ms Yule, the solicitor on file for James, and the solicitor on file for Angus, but not to Campbell.  However, the solicitor for Angus, as a matter of courtesy, forwarded the email to Campbell that same day (2 November 2015).

   [18]   During the hearing, the likely effect on Ann Irwin’s interests that actions foreshadowed to be taken by the executors pursuant to the advice and directions sought by James (and if given) was canvassed although no directions were made seeking submissions from Ann Irwin’s solicitors on this topic. 

7. Campbell asserted that an apprehension of bias arose because an email was sent to my chambers by a non-party that was not copied to him. He submitted that my chambers should have forwarded the email to him and sent a reminder to each party that all parties are to be included in any communications with my chambers. Campbell sent an email on 2 November 2015 to my chambers to which he attached a letter setting out his position concerning the Piper Alderman email.

8. My chambers responded to the parties by email the next day, 3 November 2015.  My Associate informed the parties that I would consider the contents of Campbell’s email and the email from Ann Irwin’s solicitor at a later stage.  Given that Campbell had by then filed his application for my recusal, it was appropriate that I do nothing of a substantive nature until that application could be determined one way or the other.  I have not yet formed a final view about the Piper Alderman email.  On 18 December 2015, after hearing submissions from all parties, including Campbell, I ordered that the Piper Alderman email was to be received on James’ part heard application.  I also allowed time for Campbell to respond to the matters raised in the Piper Alderman email which essentially outlined Anne Irwin’s attitude to the advice and directions sought by James with respect to the Glenelg home unit.  Campbell was given an opportunity to respond but can have cause no embarrassment or prejudice by this process.

9. 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

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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?

16. In this instance, my exchanges with counsel involved exploring the practical and legal ramifications were I to give advice to the executors with respect to certain proposed dealings with a home unit at Glenelg in circumstances where the deceased’s wife, not a party to the present proceedings, held a licence to occupy it.  The issue was quite peripheral to the matters to be decided on James’ part heard application.  Only if I were to give the executors advice and directions in the manner as sought concerning the unit at Glenelg, would the question arise of whether or not steps would be required to protect Ann Irwin’s interest.  The concern that her interest might unfairly or improperly be interfered with or could not properly be accommodated is, in truth, a consideration militating against the outcome sought by James and in favour of the outcome sought by Campbell.

17. Campbell failed to articulate any logical connection between my exchanges with counsel set out above and the fear that I would determine the part heard applications on anything other than their legal and factual merits. 

18. Campbell referred to a considerable number of other questions asked of and observations made by me to counsel during the argument on 27 August 2015.  In a number of cases the complaints are trivial.  In other cases, Campbell has misunderstood the purpose of the exchanges and the fact that they are simply examples of what occurs in the courts every day: the Court seeking further explanation from counsel and exploring the potential ramifications of the submissions being put.

19. A fair-minded lay observer acting reasonably is someone who would have some understanding of the purpose of counsel’s submissions and of a Judge’s exchanges with counsel.  A fair-minded lay observer would not, on the basis of the transcript of argument in question, reasonably believe that I might have prejudged the matters to be determined. 

    Abuse of process

20. At the hearing on 18 December 2015, counsel for Angus submitted that it was open for me to find that the application filed by Campbell was an abuse of process.  It was submitted that the application had been brought for an ulterior purpose; to allow Campbell to file further interlocutory applications in this matter and to delay my ruling on the part heard applications.  As a result of the filing of Campbell’s recusal application, I ceased to be in a position to reserve my decision notwithstanding that Campbell filed his submissions in reply on 23 October 2015 or to give substantive consideration to the part heard applications. Since the filing of the recusal application, Campbell has filed three further interlocutory applications.  As a result, I still have not reserved my decisions on the part heard applications.

21. Counsel submitted that, in light of the oral submissions made by Campbell at the hearing on 18 December 2015, Campbell was less concerned about any prejudgment of the issues raised by the part heard applications but, rather that I might, after reserving, go on to determine the matter against his interest and submissions.  As Campbell has been unsuccessful in his recusal application, it is unnecessary for me to determine whether or not the application was an abuse of process.

    Conclusion

22. Campbell failed to make out any tenable basis to support the conclusion that a fair-minded lay observer would apprehend bias on my part.  For this reason, I dismissed the recusal application.