Chel v Fairfax Media Publications Pty Limited (No 5)

1. [1]

   The plaintiff applies for an order that I disqualify myself on the grounds of reasonable apprehension of bias.

The plaintiff’s submissions

1. [2]

   Mr Rasmussen, who appears on her behalf, contended that the reasonable apprehension arises by reason of three separate matters. The first matter relied upon is said to arise from what occurred when the matter came before me last Thursday, 12 November 2015 for mention, I having adjourned the trial of the proceedings from 9 November 2015, when it was due to start, to 16 November 2015 to accommodate Mr Rasmussen's indisposition.

2. [3]

   The matter which is said to give rise to the reasonable apprehension is that I inquired of the parties who had requisitioned the jury and, when I was told by Mr Blackburn SC, who appeared with Ms Barnett on behalf of the defendants, that it was the defendants who had elected for a jury, I did not pursue the matter.

3. [4]

   Mr Boorman, the plaintiff's solicitor, has deposed to what occurred in court in an affidavit sworn on 16 November 2015. He said, in [6]:

4. [5]

   As I have the benefit of the transcript (but it seems that neither Mr Rasmussen, nor Mr Boorman had a copy of the transcript when the affidavit was sworn or the application was made), it is appropriate that I extract for the record what was actually said in the relevant exchange:

5. [6]

   The second matter on which Mr Rasmussen relies is that he alleges that I have mischaracterised the plaintiff's evidence given in support of the notice of motion filed in court on 16 November 2015 for orders, inter alia, that the plaintiff was entitled to have the proceedings tried by jury.

6. [7]

   The plaintiff was asked how she felt when she found out, last Friday or thereabouts, that the defendant no longer wanted a trial by jury. She answered: "That I was going to be denied natural justice". She explained she was very upset. I interjected a little later when the following exchange occurred:

7. [8]

   Later that matter came up in the course of submissions. The following exchange with Mr Rasmussen took place in the course of his submissions:

8. [9]

   The third matter on which Mr Rasmussen relies is that I have made several decisions against his client on his application: first, the relief sought by notice of motion yesterday morning; and secondly, I have refused, it now transpires, four adjournment applications which have been made on behalf of the plaintiff.

9. [10]

   For completeness, I propose to set out in the circumstances in which each of the adjournment applications was made.

10. [11]

    The first was made at 2pm yesterday following delivery of ex tempore reasons for dismissing the plaintiff’s notice of motion before the luncheon adjournment: Chel v Fairfax Media Publications Pty Limited [2015] NSWSC 1707. The purpose of the adjournment was so the plaintiff could apply to the Court of Appeal for leave to appeal against my orders. That was declined on the basis, which is apparent from my reasons, that I thought the trial should continue and that the plaintiff could file relevant documents for leave after 4pm.

11. [12]

    The second application for adjournment which was refused was made at 2.40pm on Monday afternoon when Mr Rasmussen informed me he had a note from the Associate to Macfarlan JA that his Honour was available to see the parties at 3pm. I indicated that I would allow the parties to leave my courtroom at 2.55pm to appear before Macfarlan JA and that I would wait in my chambers to hear when that application was over in order that I could determine the further conduct of the proceedings.

12. [13]

    When the parties came before me later in the afternoon (on Monday 16 November 2015), at 4.30pm, Mr Rasmussen made a further application for adjournment and said that the time could usefully be used by the parties between then and 3pm this afternoon when the matter comes back before Macfarlan JA to, as he put it, get the plaintiff's house in order. The application for adjournment was declined and the matter was adjourned to commence at 10am today: Chel v Fairfax Media Publications Pty Limited (No 3) [2015] NSWSC 1726.

13. [14]

    This morning, at about 10.15am, Mr Rasmussen made a further application for adjournment and relied on a communication from Macfarlan JA's Associate to the effect that his Honour was contemplating listing the matter for half a day before the Court of Appeal for the concurrent hearing of the plaintiff's leave application and the appeal itself this Friday, 20 November 2015.

14. [15]

    Mr Rasmussen submitted that the series of refusals of adjournment applications would give the hypothetical fair minded lay person at the back of the courtroom the impression that I was biased against the plaintiff and that she would not have a fair trial before me.

The defendants’ submissions

1. [16]

   Mr Blackburn submitted that the interchange last Thursday relating to the question of who requisitioned the jury was entirely unexceptional. He contended it was an appropriate inquiry to make in circumstances where there was at least the possibility that Mr Beazley, who is not experienced as an advocate in jury trials (although he is an experienced instructing solicitor at such trials), would be required to conduct the trial on behalf of the plaintiff, having regard to Mr Rasmussen's ill health. Mr Blackburn also submitted that the supposed mischaracterisation of the plaintiff's evidence was entirely nebulous and amounted to no more than a quibble about the substance of her evidence. He also submitted that nothing could be made of my decisions to refuse various adjournment applications and the notice of motion since, on each occasion, reasons were given for those decisions which were unexceptional and orthodox.

Reasons

1. [17]

   The relevant test for apprehended bias was as stated by the High Court in Re Refugee Tribunal ex parte H [2001] HCA 28; 75 ALJR 982 at [28]:

2. [18]

   The principle, as articulated in Ebner v Official Trustee [2000] HCA 63; 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ), is:

3. [19]

   This test has been abbreviated and is often referred to as the "two mights test".

4. [20]

   The hypothetical fair minded observer is to be assumed to be aware of the actual circumstances of the case: Hot Holdings Pty Ltd v Creasy [2002] HCA 51; 210 CLR 438 at [68] and [76].

5. [21]

   On the basis of Hot Holdings Pty Ltd v Creasy, a hypothetical fair minded observer would have been aware of the circumstances surrounding the proceedings generally as well as the circumstances surrounding the plaintiff's application for adjournment of the proceedings on the grounds of Mr Rasmussen's ill health.

6. [22]

   The hypothetical fair minded observer would also have been aware, from the context in which the notice of motion was brought, that it was the defendants who had elected for trial by jury, the plaintiff not having taken any steps to secure such a right for herself. In order to determine the view of the hypothetical fair minded lay observer, it is necessary to address Mr Rasmussen's submissions.

7. [23]

   As to the exchange before me last Thursday, 12 November 2015, I do not consider that there is anything in that exchange which would cause a hypothetical fair minded observer that there was any reason to apprehend bias against the plaintiff. I consider that such a hypothetical fair minded lay person would have considered that I was concerned to preserve the trial date and to ensure that the plaintiff was adequately represented, notwithstanding Mr Rasmussen's ill health, which had already resulted in the matter being adjourned for a week.

8. [24]

   The second matter concerned the plaintiff's evidence, which was, initially, that she thought she was going to be denied natural justice if the trial by jury was dispensed with. She later clarified her evidence and explained that she preferred to have a trial by her peers. The difficulty with that evidence is that the term "natural justice", as I apprehend the hypothetical fair minded lay person would appreciate, is a term which has a special legal meaning (procedural fairness) to lawyers but to lay members of the public, non-lawyers, it means something quite different and is often used as a synonym for justice itself.

9. [25]

   It would be apparent, in my view, to the hypothetical fair minded lay person that the plaintiff, Ms Chel, was using that expression in its lay meaning to mean justice or fair mindedness. As she explained, she thought she could obtain justice from a jury of her peers. When I referred to that evidence later, a hypothetical fair minded observer would have considered that I was recording my understanding of the plaintiff’s evidence: that she would much have preferred to have her case tried by a jury than by judge alone, because she preferred to be tried by her peers.

10. [26]

    As to the third matter, namely the number of occasions on which I have refused adjournment application, the hypothetical fair minded lay person would appreciate that the hearing of proceedings tend to be dynamic and may give rise to several interlocutory applications, each of which needs to be determined on their merits at the time each is made. Such a person would have appreciated that, on each occasion when the application was made, there were different circumstances which had arisen having regard, in part, to the plaintiff's desire to pursue her right to apply for leave to appeal from the Court of Appeal and the availability of a single judge of the Court of Appeal to consider the question of stay and the availability of more judges to consider the leave application and the appeal if granted.

11. [27]

    The hypothetical fair minded lay person would have noted the different circumstances on which Mr Rasmussen relied in respect of each such application and accordingly the different considerations which I took into account in my decision to refuse those applications. The decisions were made principally on the basis that I considered that the trial by judge alone should continue, unless and until stayed by the Court of Appeal or, unless and until, my order that the proceedings be tried by judge alone is overturned by the Court of Appeal.

Conclusion

1. [28]

   In those circumstances I do not consider that such a person might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions I am required to decide in the plaintiff's claim for damages in these proceedings she has brought against Fairfax Media Publications Pty Ltd and Vanda Carson, the journalist who wrote the relevant article.

2. [29]

   I refuse the application that I disqualify myself on the grounds of reasonable apprehension of bias.

Order

1. [30]

   I make the following order:

   1. (1)

      Refuse the application that I disqualify myself on the grounds of reasonable apprehension of bias.