McGinn v Cranbrook School

1. [1]

   LEEMING JA: Ms Sophia McGinn has purported to appeal, as of right, from orders made by a judge sitting in the Common Law Division of the Supreme Court, dismissing proceedings brought by her pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), on the basis that they did not disclose a reasonable cause of action and were an abuse of process of the court: McGinn v Cranbrook School (2 October 2015). It is not necessary to summarise the details of the allegations made in those proceedings for the limited purpose of determining the application which has come before me. However, I should note that the primary judge stated in a supplementary judgment, McGinn v Cranbrook School (No 2) [2015] NSWSC 1485, at [2]:

2. [2]

   Nothing that either party has written or said has called into question any aspect of that summary.

3. [3]

   After filing her notice of appeal on 13 October 2015, the lawyers acting for the respondent School advised Ms McGinn that s 101(2)(e) of the Supreme Court Act 1970 (NSW) applied to the interlocutory judgment in its favour from which she had purported to appeal. They referred her to this Court’s decision in Macatangay v New South Wales (No 2) [2009] NSWCA 272, which states, at [13], in respect of another order of a judge sitting in the Common Law Division pursuant to r 13.4, that “the order of Grove J was interlocutory, s 101(2)(e) of the Supreme Court Act 1970 (NSW) applies, and the plaintiff’s appeal as of right was incompetent”.

4. [4]

   That judgment binds me. The application made by the respondent School relying upon it does not, contrary to Ms McGinn's repeated submissions to me, require evidence. No evidence is required to determine the question of competency. The same issue arose in AB v State of New South Wales [2014] NSWCA 243, to which Ms McGinn has referred, where the authorities are discussed.

5. [5]

   I have power to dismiss an appeal for “want of prosecution or for other cause specified in the rules”: see Supreme Court Act 1970 (NSW), s 46(1)(b). The competency of an appeal is regulated by UCPR r 51.41, and the School has applied under that provision within the time stated. Despite Ms McGinn being advised by the solicitors acting for the School, and the Registrar of this Court, of the requirement to seek leave to appeal, she has declined to do so. She submits that the relevant inquiry is to determine whether the judgment substantively determined the rights she wished to agitate. It is true that it did determine those rights, and adversely to her. That, however, as the authorities I have referred to establish, is not the point.

6. [6]

   At the conclusion of her submissions, Ms McGinn made an application for me to recuse myself. She said that my conduct disclosed actual bias. She said, as I understood her, that I had reached a conclusion on the basis that no evidence was required by the School to sustain its motion. I do not agree with the submission. At the time the application was made I had not reached any conclusion on the fate of the motion. Irrespective of that, the question of actual bias, or apprehended bias if that, indeed, also is what underlies Ms McGinn's application, is whether a reasonable bystander might reasonably form the view that the judicial officer might bring other than an impartial mind to determine the application.

7. [7]

   I do not regard that anything that I have said or the way in which this application has been determined could give rise to the satisfaction of that admittedly low threshold. The test is stated in Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 244 CLR 427 and McGovern v Ku-ring-gai Council [2008] NSWCA 209; 72 NSWLR 504 and other decisions referred to in those cases. The simple fact of the matter is, as has been explained to Ms McGinn by the solicitors for the School and the Registrar of this Court, that decisions which bind me mean that her appeal is incompetent.

8. [8]

   I order that:

[Discussion regarding costs]

1. [9]

   The School applies for costs of the appeal on an indemnity basis. It refers to the fact that both its solicitors and the Registrar of this Court have advised Ms McGinn of the binding authority which stood in the way of her appeal as of right. When I raised with Ms McGinn the question why, in light of those authorities, she did not seek leave to appeal, I did not understand her to provide any clear answer. It remains unclear to me why the School's time and the Court's time has been troubled by Ms McGinn, who is plainly aware of the decisions binding me and has been advised by the Court's Registrar and the School that her appeal was incompetent, yet has proceeded in that course. In those circumstances, I am persuaded this is an appropriate case to accede to Mr May's application.

2. [10]

   I order that: