Walton v Walton [2015] NSWSC 385 (1 April 2015)

Last Updated: 8 April 2015

Supreme Court New South Wales

Case Name:	Walton v Walton
Medium Neutral Citation:	[2015] NSWSC 385
Hearing Date(s):	01 April 2015
Decision Date:	1 April 2015
Jurisdiction:	Equity Division
Before:	Stevenson J
Decision:	Recusal application dismissed
Catchwords:	PRACTICE AND PROCEDURE – apprehension of bias – whether by reason of terms of judgment dismissing plaintiff’s claim or of a remark made during subsequent submissions a fair minded lay observer might think the judge might not bring an impartial and unprejudiced mind to bear on the question of costs of the proceedings – whether judge should recuse himself
Cases Cited:	Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Walton v Walton [2005] NSWSC 218
Category:	Procedural and other rulings
Parties:	Lynda Joyce Walton (Plaintiff) Peter George Walton (First Defendant) Helen Walton (Second Defendant)
Representation:	Counsel: J Lo Schiavo (Plaintiff) S K Hill (Defendants) Solicitors: Neagle Lawyers (Plaintiff) Emil Ford Lawyers (Defendants)
File Number(s):	SC 2012/382828

EX TEMPORE JUDGMENT

1. I heard this matter on 2, 3 and 4 March 2015 and gave judgment on 16 March 2015 dismissing the plaintiff’s claim: Walton v Walton [2005] NSWSC 218.
2. On 16 March 2015 I ordered the plaintiff pay the defendants’ costs. However, on the application of the plaintiff's solicitor, I later revoked the order and directed that the parties exchange written submissions on the question of costs.
3. I originally indicated that I would deal with costs on the papers. However, last Friday, 27 March 2015, I informed the parties that, for a number of reasons, I proposed to hear oral argument on costs.
4. The matter now before me is an application by the plaintiff that I recuse myself "forthwith from any consideration of issues in this matter, including further hearing the costs application.”
5. The basis upon which the application is put is one of apprehended bias.
6. The test for determining whether a judge should disqualify himself or herself by reason of apprehend bias 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": Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11]; affirmed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337.
7. An apprehension of bias is said to arise in this case from the terms of my judgment of 16 March 2015 and from matters said to have been not referred to in that judgment, and from a remark I made on 18 March 2015 during submissions concerning the question of payment out of monies in Court.
8. Last night I received some 18 pages of written submissions on behalf of the plaintiff.
9. This morning Mr Lo Schiavo appeared for the plaintiff. Shortly before the hearing this morning he sent me further, more succinct, submissions.
10. The matters raised in respect of my judgment can be summarised as follows:
    • (a) that I took an unfairly critical approach to the evidence relating to the plaintiff compared to the evidence relating to the defendant;
    • (b) that I failed to have regard to material evidence and to assess the evidence of witnesses and their credibility;
    • (c) that I failed to give due weight to the documentary evidence when assessing credibility; and
    • (d) that I failed to draw adverse inferences (presumably against the defendants) on the evidence.
11. Mr Lo Schiavo emphasised the plaintiff's apprehension that by reason of these matters I might not bring an impartial mind to bear on the question of costs. It may very well be that this is the plaintiff's state of mind. That, however, is not the test. The test is whether a "fair minded lay observer” might reasonably apprehend I might not bring an impartial mind to bear. I do not accept that a fair minded lay observer would reach such a conclusion based upon the matters to which I have referred. Those matters may be relevant to a consideration of my judgment by the Court of Appeal (if an appeal is brought), but I do not see them as possibly giving rise to any reasonable apprehension that I might not bring an impartial mind to bear on the question of costs.
12. So far as concerns what I said on 18 March 2015 the transcript reads, relevantly:

“ANDERSON: All that I would say, your Honour, is that - and it probably goes without saying - the litigation was brought for the prospective benefit of not just [the plaintiff] but all siblings, and it is apparent from the way proceedings ran that it was done with the explicit support of at least two of them.

HIS HONOUR: I didn't get that impression.

ANDERSON: Well, there were two witnesses.

HIS HONOUR: Well, Beth said she was doing it for her mother and not for [the plaintiff] in her affidavit. It was not clear at all to me what the other siblings had to say about this, if that be relevant. ...”.

13. My comment that "Beth [the plaintiff’s sister, Ms Elizabeth Atkinson] said she was doing it for her mother” and not for the plaintiff was a reference to the affidavit Ms Atkinson swore on 9 May 2013 in which she said:

“I am providing this evidence herein in support of my mother and what I knew were her intentions. I have no desire to have contact with my sister [the plaintiff] due to irreconcilable differences between us."

14. My comment was directed to Mr Anderson's submission that the plaintiff was bringing these proceedings with the “explicit support of at least two” of her siblings.
15. Mr Lo Schiavo submitted that my observation might indicate that I might not bring an impartial mind to bear on the question of costs and in particular to the plaintiff’s foreshadowed submission that she should have her costs of the proceedings paid out of her late mother’s estate.
16. I do not think that a fair minded lay observer might reasonably apprehend, based upon what I said on 18 March 2015, that I might not bring an impartial and unprejudiced mind to bear upon this question.
17. For those reasons I refuse to recuse myself.
18. In the submissions delivered to chambers yesterday, the plaintiff sought an order that the defendants pay the costs of the plaintiff's application that I recuse myself.
19. The defendants have had to prepare to meet that claim and deal with the 18 pages of submissions delivered yesterday and the lengthy affidavit sworn by the plaintiff in support of the application.
20. For those reasons I think it is reasonable the defendants have their costs of the application.
21. I order that the plaintiff pay the defendants' costs of this application.

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Amendments

08 April 2015 - Date amended