Missing the crucial second step on the apprehended bias test … Recusal application dismissed … Brief thought judge was looking after the other side … The judge found no such thing … Janek Drevikovsky reports
It’s a case that only just came to our attention and we thought it would be instructive if it didn’t pass without further ado.
Pearce appeared for William Robert Wilson, the plaintiff by counterclaim, who was upset that he had signed away his holdings in a resources trust. Pearce argued his client had been misled into the agreement, and that the defendant trustees had breached their fiduciary duties.
Then, on the eleventh and second last day of evidence, Pearce sought to have presiding judge Clyde Croft recuse himself for apprehended bias.
Good old Ebner v Official Trustee in Bankruptcy was trotted out to suggest that the reasonable and disinterested person lounging around at the back of the court would pick up that the judge was biased.
Crofter set to work on dismantling Pearce’s list, saying:
“A superabundance of examples were adduced to substantiate the application. But a successful submission would have demonstrated how, given those examples, it could be reasonably apprehended that I would not decide the case impartially or without prejudice.”
It was suggested Pearce had missed the crucial second step of the Ebner test, namely, “articulat[ing] the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”.
Croft thought his conduct would reasonably be seen as a necessary response to confused evidence and irregular cross-examination by the plaintiff. He dealt with Pearce’s examples in sequence.
To the charge that he had made hostile interjections into Wilson’s evidence:
“Wilson’s evidence was characterised by a propensity not to answer the questions that were put to him and to make speeches or submissions in support of his case.”
It was within the duties and responsibilities of a judge, Croft said, to ask a witness to “focus on the questions asked and confine his answers to them”.
To the suggestion he had made inconsistent rulings, the judge thought that Pearce had missed the “nuances” that differentiated similar scenarios.
In one of his examples, Pearce complained that while considering an objection to a plaintiff witness’s testimony, Croft had said:
“It is fairly clear the witness hasn’t got much recollection of these accounts, so I don’t know what weight a lot of the answers will bear.”
In his reasons, HH pointed out that he had gone on to rule against the objection. “It is unclear why a ruling on objection in favour of Wilson would be later complained of.”
Next came Pearce’s suggestion that the judge had smoothed the defendant’s way through cross-examination. But as His Honour explained, a lot of it came down to Pearce’s own cross-examination technique:
“It was highly repetitive, the same topic was gone over on a number of occasions, and at times I asked senior counsel for Wilson to get on with his questions.”
Justice Croft admitted his patience had, at times, begun to wear thin.
“[I]t might be fair to say that my tone might have indicated a degree of exasperation.”
This exchange evidenced a degree of frustration:
At one point the plaintiff alleged that one of the defendants had physically threatened him – improbable, counsel said, because the defendant was “half [the plaintiff’s] size”.
But this wasn’t grounds for concluding apprehended bias, Justice Croft said. Rather, it was “rightly characterised as a moment of levity”.
Ultimately, the application for recusal was dismissed.
“It is incorrect to say that any of these exchanges, either individually or cumulatively, might give rise to a reasonable apprehension in the mind of a reasonable lay observer that I might decide the case other than on its legal and factual merits.”
He found against the plaintiff on the substantive issues at trial.