Simmons v New South Wales Trustee and Guardian

Judgment

1. [1]

   BARRETT JA: Counsel for the applicant on this application for leave to appeal has asked that I disqualify myself from participation. He does so because I was one of the three judges who heard and determined an interlocutory appeal involving the same parties in the same litigation, which appeal was decided in June 2013: Simmons v Henwood [2013] NSWCA 184 (Emmett and Gleeson JJA; Barrett JA dissenting).

2. [2]

   A central issue on the present application is the adequacy or otherwise of the revised pleading propounded by the plaintiff in the Equity Division after determination of the earlier appeal. One of the main questions now is the same, in essence, as it was on the previous occasion, that is, whether fraud such as to defeat s 42 of the Real Property Act 1900 (NSW) and the indefeasibility it creates is adequately pleaded in the revised statement of claim.

3. [3]

   It is put that my involvement in the earlier case and my reaching of a conclusion adverse to the plaintiff on that occasion creates an appearance of potential prejudgment adverse to him. The test, of course, is that stated in Michael Wilson & Partners v Nicholls [2011] HCA 48; 244 CLR 427 at [31]: "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. [4]

   All three judges who sat on the earlier appeal were of the opinion that fraud in the s 42 sense had not been adequately pleaded. The difference of opinion was as to whether the plaintiff should be given another opportunity to replead.

5. [5]

   It is submitted that my holding on the earlier occasion indicated support for or endorsement of the primary judge's finding in his judgment which was under review in the earlier appeal that the proceedings are an abuse of process. That is simply not so when one reads [15] of my earlier judgment in which I described the primary judge's conclusion of abuse of process as erroneous. That being so, the only tangible factor of present relevance is that, on the earlier occasion concerning a different pleading and in relation to the exercise of a discretion, I reached a decision adverse to the present applicant (that is the plaintiff).

6. [6]

   That, to my mind, says nothing about how I will approach and decide - or, equally importantly, how it may be perceived by a fair-minded lay observer that I will approach and decide - the questions arising on this leave application. They are questions that go wholly to a new and revised pleading on which the judge below made a decision after the earlier appeal involving a different pleading had been determined.

7. [7]

   I decline to disqualify myself from participation in the hearing of the application for leave to appeal now before the Court.