NATALE LAURO (BY LITIGATION GUARDIAN MR E LAURO) In Person v MINTER ELLISON (A FIRM) [2024] SASC 48

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE DART) CIV-22- 005455 Appellant: NATALE LAURO (BY LITIGATION GUARDIAN MR E LAURO) In Person Respondent: MINTER ELLISON (A FIRM) Counsel: MR P DOECKE - Solicitor: MINTER ELLISON Hearing Date/s: 05/02/2024 File No/s: CIV-23-004459 B SUPREME COURT OF SOUTH AUSTRALIA (Appeal to a Single Judge) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. LAURO v MINTER ELLISON (A FIRM) [2024] SASC 48 Judgment of the Honourable Justice McDonald 4 April 2024 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - TAXATION AND OTHER FORMS OF ASSESSMENT - APPEAL, REVIEW OR REFERENCE - OTHER MATTERS COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - REASONABLE APPREHENSION OF BIAS GENERALLY This is an appeal concerning the dismissal of an application by a Supreme Court Master to recuse himself from the further hearing of a taxation of costs dispute, on the grounds of apprehended bias. On 17 June 2022, the appellant filed an originating application for the taxation of costs. The appellant made two applications for the Master to recuse himself. Each application was refused. Held: Allowing the appeal but dismissing the appellant’s application for costs: 1. The Master be recused from presiding over the application for taxation of costs. Re JRL; Ex parte CJL (1986) 161 CLR 342; Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411; Harradine v Chief Executive of the Department for Education [2021] SASCA 139; Contract Mining Services Pty Ltd v Adelaide Brighton Cement Ltd [2020] SASC 69; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419, applied. Lauro v Minter Ellison (A Firm) (Supreme Court of South Australia, Judge Bochner, 18 October 2022); Lauro v Minter Ellison (A Firm) (Supreme Court of South Australia, Judge Dart, 7 February 2023); Lauro v Minter Ellison (A Firm) (No 2) (Supreme Court of South Australia, Judge Dart, 30 March 2023); Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; Kumaragamage v Rallis (No 2) [2001] NSWSC 710; Girgis v Oueik [2018] NSWCA 314, discussed. -- 1 of 17 -- -- 2 of 17 -- LAURO v MINTER ELLISON (A FIRM) [2024] SASC 48 Appeal to a Single Judge McDONALD J. 1 On 17 June 2022, the appellant1 filed an originating application for the taxation of costs. The matter was initially listed before Judge Bochner who, on the application of the appellant, recused herself from dealing with the action on the basis of apprehended bias. The matter was then listed before Judge Dart. The appellant made two applications for Judge Dart to recuse himself. Each application was refused. Those are the decisions that the appellant challenges. The background to the application for recusal 2 Between about May 2011 and early 2013, Minter Ellison represented the appellant in a number of civil matters associated with, or arising from, disputes between the appellant and a number of third-parties over claims about faults in the construction of a domestic premises. One of the actions was against a company by the name of Marble House Pty Ltd. It related to a dispute about the building services provided to the appellant by Marble House. The action was litigated in the Magistrates Court. The claim was dismissed. The appellant instituted an appeal to this Court. The appeal was heard and dismissed by Blue J. There was an order for costs made against the appellant. 3 Marble House filed a short form bill of costs. There was no response by the appellant to that document and a default allocatur was issued by the Court. 4 The matter was listed before Judge Dart on 5 December 2014. On that occasion, Judge Dart recused himself from hearing the proceedings on the basis that, at that time, he was involved in commercial dealings with Marble House. 5 The current application for solicitor/client taxation first came before Judge Bochner on 15 July 2022. On that occasion the appellant foreshadowed an application for recusal. 6 The matter next came before Judge Bochner on 2 August 2022. By that time, the appellant had filed an application for her Honour to recuse herself. 7 The hearing was adjourned to permit time for the appellant to file written submissions on the application for recusal. Having received those submissions, Judge Bochner determined to recuse herself. Her Honour provided reasons for her 1 Mr Lauro has been appointed as his father’s litigation guardian. Mr Lauro senior is elderly and infirm and has been so for a number of years. Over that time, Mr Lauro has acted for his father in various proceedings. To avoid confusion, and for ease of reference, I will refer to Mr Lauro and his father collectively as “the appellant” unless it is necessary to differentiate between them. -- 3 of 17 -- [2024] SASC 48 McDonald J 2 decision.2 In those reasons, she identified that, in 2016, she had heard an appeal from a decision of a District Court Master in the appellant’s litigation with Marble House. The appellant claimed that, in the course of dealing with the appeal, Judge Bochner had made adverse findings against him. 8 Subsequently, the appellant instituted proceedings against the respondent. Judge Bochner also had some involvement in the interlocutory stages of that action. At that time, the appellant asked Judge Bochner to recuse herself as a result of her earlier involvement in the Marble House action. On that occasion, she declined to do so. 9 In her reasons, Judge Bochner set out the basis of the application to recuse herself:3 The applicant says that in the course of my previous dealings with litigation involving him, I expressed opinions that prejudged him. As a result, there is reasonable apprehension of bias in respect of any decision that I might make in this matter, particularly as the decisions I have previously made are relevant to the taxation of costs. 10 Applying the test as set out in Michael Wilson & Partners Ltd v Nicholls,4 Judge Bochner determined that, given that she had previously made decisions on two separate matters which bore on the taxation, “a fair-minded lay observer may well apprehend that I ‘might not bring an impartial and unprejudiced mind to the resolution’ of the dispute between the parties in this action”.5 11 The application for the taxation of costs was administratively reallocated to Judge Dart. Although it is not clear from the affidavits and submissions of Mr Lauro as to whether he raised a specific objection with the registry about the matter coming before Judge Dart, he contends that, given the history of Judge Dart’s involvement, the registry was on notice that Judge Dart had a conflict of interest in relation to any proceedings involving the appellant. It follows that it is the appellant’s submission that the matter should not have been allocated to Judge Dart in the first place. Proceedings before Judge Dart 12 The matter first came before Judge Dart for a directions hearing on 8 November 2022. Unfortunately, those proceedings were not recorded or transcribed. The only record of what occurred during the hearing is contained in the Record of Outcome,6 and in Mr Lauro’s affidavits. I set out the relevant portion of the Record of Outcome in full: 2 Lauro v Minter Ellison (A Firm) (Supreme Court of South Australia, Judge Bochner, 18 October 2022). 3 Lauro v Minter Ellison (A Firm) (Supreme Court of South Australia, Judge Bochner, 18 October 2022) at [4]. 4 (2011) 244 CLR 427 at [31]-[33] (Gummow ACJ, Hayne, Crennan and Bell JJ). 5 Lauro v Minter Ellison (A Firm) (Supreme Court of South Australia, Judge Bochner, 18 October 2022) at [6]. 6 FDN 17. -- 4 of 17 -- [2024] SASC 48 McDonald J 3 This matter relates to a taxation of costs. One of the litigious files involve a business called Marble House. At the time that matter was before the Court, I had commercial dealings with that business. I recused myself because of those dealings. There are five other matters in which the respondent acted for the applicant. I accept that, having recused myself in relation to the Marble House matter previously, that position should remain. I know nothing of the other five matters. The applicant requests that I recuse myself. Before considering that application I need to understand the factual basis on which the application is based. Separately, the respondent foreshadows adopting the position that this application for a taxation is out of time. The time limit provided for in the third schedule to the Legal Practitioners Act is six months. The Court has a discretion to extend time. There may be an issue about the applicability of the present form of the third schedule to this taxation. It appears that much of the work was carried out prior to the present provisions coming into operation. Order 1. Applicant is to file any affidavits in relation to whether I should recuse myself (other than Marble House) within six weeks. 2. The respondent is to file any affidavit in respect of the limitations of time within six weeks. 3. Costs reserved. (Emphasis Added) 13 It can be taken from these entries that, at that time, Judge Dart was, at least on the face of it, prepared to accept that as a consequence of his previous dealings with Marble House and earlier recusal, it was appropriate to recuse himself again in relation to those aspects of the application that related to litigation against Marble House. It appears that the remedy that he was proposing at that stage was to “carve out” those aspects and presumably have them dealt with separately by another judicial officer. 14 At the 8 November 2022 directions hearing, Judge Dart also identified that the respondent was foreshadowing a preliminary issue about whether the appellant was required to apply for an extension of time. The outcome of that issue was dependent upon a determination of the applicable legislation. Under Sch 3, Pt 7, s 37(4) of the current form of the Legal Practitioners Act (1981) (SA), an application for an adjudication for costs must be made within 6 months after: (a) the bill was given or the request was made to the client or third party payer; or, (b) the costs were paid if neither a bill was given nor a request was made. There is, however, a discretion to carry out the adjudication even if the application has been made out of time. Under previous versions of the Act, there had been no such limitation of time. Given that much of the work undertaken by the respondent was carried out prior to the introduction of the limitation of time, the issue had arisen as to whether the time limit was applicable. 15 The orders made by Judge Dart on 8 November 2022 reflect that this was the issue (along with the question of recusal) that he considered to be the most pressing at that point in time. -- 5 of 17 -- [2024] SASC 48 McDonald J 4 16 In his affidavits, Mr Lauro has raised a number of complaints about the manner in which this directions hearing unfolded. As I have said, it was his position that he should never have been put in the position of having to make the applications for recusal as the file should not have been allocated to Judge Dart, given his history with the appellant’s matters. Mr Lauro also made a number of complaints about what occurred subsequent to the directions hearing. To understand a number of these complaints, it is necessary to go back to the events of 5 December 2014, when Judge Dart recused himself from the proceedings involving Marble House. 17 Mr Lauro deposed that there had been an earlier hearing prior to 5 December 2014 over which Judge Dart presided. Mr Lauro was unable to provide me with a date or a detailed account of what occurred at that hearing. Subsequent enquiries have determined that there is no longer transcript available for that hearing (if there ever was). Mr Lauro said that, on that occasion, there had been no reference to any conflict of interest by Judge Dart and that his Honour only disclosed the potential conflict on a subsequent occasion, being 5 December 2014 after it had been raised by Mr Lauro’s father. It was said that it was in that context that Judge Dart recused himself on the basis of his commercial relationship with Marble House. Mr Lauro also deposed that on that occasion, his father had made some disparaging comments to Judge Dart which were likely to have caused offence. 18 During submissions, Mr Lauro advised the Court that, subsequent to this directions hearing, he and/or his father made a number of complaints about Judge Dart. I will come back to this topic of complaints in due course. 19 It is against this backdrop that Mr Lauro raised the issue of apprehended bias during the proceedings in 2022, although he said that his concerns were further heightened when, during the hearing on 8 November 2022, Judge Dart referred to one of the company directors of Marble House by his first name, Luigi. Mr Lauro said that this caused him to be concerned that the relationship between Judge Dart and Marble House might be something more than he had previously appreciated. 20 A further complaint made by Mr Lauro about the 8 November 2022 directions hearing was that Judge Dart had made orders relating to the determination of the question of an extension of time in circumstances in which Judge Dart should have first determined the issue of recusal. Mr Lauro submitted that Judge Dart should have adopted the approach of Judge Bochner in dealing with the question of apprehended bias as a discrete topic before embarking on hearing any of the submissions on the issues arising on the primary application. Mr Lauro submitted that the apprehension of bias created by adopting this course was compounded by a failure of Judge Dart to consider any of the preliminary points that he said he had raised in the same directions hearing, at least one of which he suggests should have been determined before the consideration of an -- 6 of 17 -- [2024] SASC 48 McDonald J 5 extension of time.7 There is no reference to any other preliminary arguments raised by Mr Lauro in the Record of Outcome. 21 Mr Lauro also relied upon the tone and demeanour of Judge Dart during this hearing, as well as a comment to the effect of “what are we doing here” as demonstrative of the fact that Judge Dart had a closed mind, or at least some preconceived ideas, about the litigation that has been instituted by the appellant. 22 An assessment of demeanour and tone is always, to a large extent, subjective and not open to review by someone who was not present on the day. Equally, absent a transcript of the proceedings, it is not possible to determine what comment, if any, was made by Judge Dart and the context in which it was made. 23 By the end of 8 November 2022 directions hearing, Mr Lauro understood that he was required to file written submissions on the application for recusal, but said that he believed that he would be given an opportunity to address the Court on the issue as that was what had occurred before Judge Bochner. 24 That did not occur. On 31 January 2023, the application came on for a further directions hearing before Judge Dart. Again, there is no transcript of these proceedings. The record of outcome is brief. It reads: This is a taxation of costs between solicitor and client in relation to a number of separate files. The applicant says that I have a conflict. The respondent does not wish to file any material on that topic. I will consider whether the application should be allowed. 25 Mr Lauro submitted that he has a limited recollection of what occurred at that hearing other than that it was a short hearing in a busy list and, to his mind, was certainly not an occasion for him to make submissions on the application for recusal. 26 On 7 February 2023, Judge Dart made an order from chambers that the application for recusal be dismissed and published reasons. 27 In his reasons, Judge Dart set out the basis upon which the application for recusal had been made. His Honour drew a point of distinction between the status of Marble House in the 2014 proceedings and their status in the application for the taxation of costs. He said:8 The application that I now recuse myself from the taxation is based on me having a conflict of interest because of my dealings with Marble House. In 2014 Marble House was pursuing its costs. It was an active litigant. 28 Judge Dart correctly identified that, in order for a successful application for disqualification an applicant must firmly establish the facts and circumstances 7 Namely, as raised at [6] of his affidavit of 29 July 2022, the identity of the Minter Ellison Group. See FDN 9. 8 Lauro v Minter Ellison (A Firm) (Supreme Court of South Australia, Judge Dart, 7 February 2023) at [8]. -- 7 of 17 -- [2024] SASC 48 McDonald J 6 which might give rise to an apprehension of bias. Importantly, his Honour recognised that a Judge has a duty to hear a matter and not simply recuse themselves unless the requisite logical connection is properly established. Judge Dart provided his reasons for dismissing the application for recusal.9 The matter is simply a taxation of costs. The applicant has not established any logical connection between his concern about my dealings with Marble House and this particular action. Marble House has no interest in the outcome of this taxation and is not in any way involved. No issue of conflict or bias in favour of Marble House can possibly arise. The dispute is solely between the applicant and his former solicitors. 29 It follows that this was a change in position from 8 November 2022 in that Judge Dart no longer appeared to have regarded it necessary to carve out the Marble House aspect of the taxation to be dealt with by another Judge. 30 On 2 March 2023, the appellant filed a fresh application for recusal and a further affidavit in support of that application. In that affidavit, Mr Lauro deposed that “fresh issues and concerns” had arisen, and followed from, the last hearing on 31 January 2023. Mr Lauro identified and relied upon the following matters: • The change in position of Judge Dart between 8 November 2022 and 7 February 2023 (i.e., that he no longer proposed to carve out the aspect of the application relating to Marble House). • The failure of Judge Dart to provide him with an opportunity to address the Court in support of the application for recusal. • That Judge Dart had failed to take into account the decisions of other Judges to recuse themselves.10 • The reference to “Luigi” during the directions hearing on 31 January 2023. • That Judge Dart had afforded the respondent with an opportunity to make submissions on the issue of an extension of time without affording Mr Lauro with a similar opportunity to raise preliminary issues. • That Judge Dart, through his tone, demeanour, and comments, demonstrated prejudgment or a predetermination of the taxation application in favour of the respondent. 31 The matter came back on before Judge Dart for a further directions hearing on 3 March 2023. On this occasion, the proceedings were transcribed. 32 At the outset of the hearing, Judge Dart observed that a further application had been filed for him to recuse himself. Judge Dart offered to grant Mr Lauro 9 Lauro v Minter Ellison (A Firm) (Supreme Court of South Australia, Judge Dart, 7 February 2023) at [15]. 10 Previously, Justice Stanley, Justice Bampton, and Master Blumberg had administratively recused themselves because of their involvement in Mr Lauro’s earlier litigation. -- 8 of 17 -- [2024] SASC 48 McDonald J 7 permission to appeal his earlier decision on the basis that it was an interlocutory decision for which Mr Lauro required permission to appeal. 33 Three topics were discussed during this hearing. These were: the need for Mr Lauro to file any material that he proposed to rely on in the argument about the extension of time; the application for recusal; and Mr Lauro’s status as litigation guardian for his father. The third matter is of no particular moment on this appeal. 34 During the hearing, after dealing with the issue of permission to appeal the first recusal decision, Judge Dart moved on to discuss the timetable for the filing of material on the extension of time argument. In the course of that discussion, Mr Lauro made the submission that the issue of apprehended bias and recusal should be dealt with prior to the determination of issues arising from the application for taxation. 35 Judge Dart did not accept that submission, on the basis that the orders that he was proposing to make were procedural in nature. He said: Okay. Whilst I’m considering the bias application there’s no reason to delay getting the material on the court file about which regime applies because whichever judge hears it is going to need to determine that issue. So we might as well file the material. 36 Mr Lauro attempted to make an argument that the length of time that he would require to file the evidentiary material was dependent upon who was to hear the matter. Judge Dart rejected that submission, on the basis that the issue would be the same regardless of which Judge was to hear it. 37 An exchange then followed that demonstrated that, whilst Judge Dart was content to deal with procedural matters, he was conscious of the need to make a determination on the apprehended basis argument before proceeding any further. I set out that exchange in full: HIS HONOUR: Okay. Then, Mr Doecke, there may be something in Mr Lauro[‘s] affidavit that you wish to respond to. So, what sort of time should I be allowing? MR DOECKE: I’d be happy with two weeks to respond. HIS HONOUR: Okay. MR DOECKE: Then we will have a chance to make oral submissions at the hearing of- HIS HONOUR: There will need to be oral submissions MR DOECKE: On both issues, obviously. HIS HONOUR: Written and oral submissions I expect because - MR DOECKE: So you’re not looking to list it for argument at this stage. -- 9 of 17 -- [2024] SASC 48 McDonald J 8 HIS HONOUR: No, I’ve got to decide whether I’m disqualified or not, but I think I’ll just, for the present purposes, list it for directions before me in say 10 weeks. If I’m still hearing, then I’ll list it for argument, if someone else is hearing it they’ll probably list it for argument. 38 On that occasion, the following orders were made: Order 1. I grant leave to the applicant to appeal my decision of 7/2/23 where I declined to recuse myself. 2. The applicant is to file any affidavits on the question of whether the third schedule applies to this taxation and if so why an extension of time should be granted within 6 weeks. 3. The respondent is to file any affidavits in answer to the applicant’s affidavit within 2 weeks of receipt. 4. Adjourned for directions on Wednesday 24/5/23 at 9:15am. 39 On 30 March 2023, Judge Dart made a further order from chambers, again declining to recuse himself. He also granted permission to the appellant to appeal the second recusal decision. His Honour provided brief reasons for his second decision to decline to recuse himself. The relevant passages are as follows:11 The affidavit relies on my reasons of 7 February 2023 as fresh grounds for recusal. That is not the correct approach. If the applicant is dissatisfied with the outcome and the reasons for that outcome, he should institute an appeal. Leave is required as the matter is interlocutory. On 3 March 2023 I granted the Appellant leave to appeal from my first decision. The further affidavit claims that additional grounds for recusal arose from the conduct of the directions hearings on 31 January 2023. There was a discussion about procedure and the issues that needed to be determined. The respondent asserts that this action was commenced out of time. There was no argument or determination of any issue. I do not regard the applicant’s characterisation of the discussion on that date as accurate. I am satisfied there is no proper basis on which I should recuse myself. I repeat the reasons given on 7 February 2023. I dismiss application FDN 23. Given the nature of the issue, I am prepared to grant leave to the applicant to appeal this decision as well. 40 There are two additional matters that have arisen since that time that the appellant relies upon in support of his application 41 The first is that, at some time prior to 6 April 2023, Mr Lauro wrote to the Court to advise that, given the likelihood of an appeal, the respondent consented to Mr Lauro being granted further time to file his materials on the extension of time argument until after the appeal was heard and determined. Despite the respondent consenting to that order, Judge Dart only granted an extension of 21 11 Lauro v Minter Ellison (A Firm) (No 2) (Supreme Court of South Australia, Judge Dart, 30 March 2023) at [5]-[7]. -- 10 of 17 -- [2024] SASC 48 McDonald J 9 days. Mr Lauro contended that, given the respondent’s position, to limit the extension of time to only 21 days demonstrated bias against him. Although Mr Lauro contends that this put him at risk of being required to file his materials prior to the appeal, that has not transpired. There have been further adjournments to extend the time in order to accommodate the length of time that it has taken for the appeal to be heard. 42 By way of example, on 24 May 2023, the following orders were made: Order 1. The time within which the affidavit ordered to be filed on 3/3/23 is to be filed is extended until 30/8/23. 2. Any application to appoint a litigation guardian is to be filed within 6 weeks. 3. Directions hearing adjourned to Wednesday 13/9/23 at 9.15am. 4. Liberty to apply. 43 At that time of making that order there was a belief that the appeal was likely to be heard in July. 44 Currently, the material on the application for the extension of time is to be filed by 24 May 2024. However, I have no doubt, given the history of the matter, that if necessary, that date will be further extended. 45 The second matter relied upon by Mr Lauro is that on 5 July 2023 he filed an interlocutory application to stay the proceedings before Judge Dart. He filed an application seeking, inter alia, a stay of orders 1 and 2 made on 24 May 2023 (orders for the filing of materials in relation to the application for an extension of time and in relation to the appointment of a litigation guardian). Mr Lauro sought the stay until such time as the appeal was determined. 46 During the course of submissions, Judge Dart put to Mr Lauro that such an order was unnecessary, on the basis, that whilst the appeal was yet to be determined, it had the effect of a “de facto stay of proceedings”. 47 Mr Lauro submitted that Judge Dart’s refusal to grant a stay is a further indication that there must, at least, be an apprehension that Judge Dart holds a bias against him. The Law 48 It is the duty of a judge to preside over cases allocated for that judge to hear and not too readily accede to applications for recusal on the basis of apprehended -- 11 of 17 -- [2024] SASC 48 McDonald J 10 bias.12 As Livesey P observed in Harradine v Chief Executive of the Department for Education:13 … Judges do not select their cases, and parties cannot select their Judges. Judges “are not at liberty to decline to hear cases without good cause” and an objection must be based “upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case”.14 (Footnote in original) 49 In Michael Wilson & Partners Ltd v Nicholls, the High Court set out the test for disqualification for apprehended bias in the following terms:15 It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (in this case, in the form of prejudgment) 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. No party to the present appeal sought in this Court, or in the courts below, to challenge that this was the test to be applied. As the plurality in Johnson v Johnson explained, “[t]he hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues”. Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias. The respondents did not submit in this Court or in the courts below that the trial judge had in fact prejudged any issue. (Citations omitted) 50 As the High Court explained in Ebner v Official Trustee in Bankruptcy:16 … That principle gives effect to the requirement that justice should both be done and seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. 12 See, eg, Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 (Mason J); Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 417-418 (Kirby P). 13 [2021] SASCA 139 at [4]. 14 Contract Mining Services Pty Ltd v Adelaide Brighton Cement Ltd [2020] SASC 69, [7] (Livesey J) citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [19] (Gleeson CJ, McHugh, Gummow and Hayne JJ). 15 (2011) 244 CLR 427 at [31]-[33]. 16 (2000) 205 CLR 337 at [6]-[7]. -- 12 of 17 -- [2024] SASC 48 McDonald J 11 The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror. 51 The application of the criterion was identified to involve a three step process that has been reiterated in the most recent High Court exposition of the principles applying to a consideration of the question of apprehended bias in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.17 It requires: … (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair minded lay observer. 52 In their joint judgment, Kiefel CJ and Gageler J emphasised the importance of the analysis being undertaken from the perspective of a lay person. They explained:18 In undertaking that assessment, “it is the court’s view of the public’s view, not the court’s own view which is determinative”. The hypothetical fair-minded lay observer is a deliberate and necessary construct which tethers the court’s analysis to the ultimate purpose of maintaining public confidence in the impartiality of the judicial system. The construct provides the “standard by which the courts address what may appear to the public served by the courts to be a departure from standards of impartiality and independence which are essential to the maintenance of public confidence in the judicial system”. Here, as the parties properly recognised in argument, much depends on the characteristics to be attributed to the hypothetical fair-minded lay observer in applying that standard. The observer is to be placed in a contemporary setting. Uncritical attitudes of the past cannot be assumed to be those of the present. Being fair-minded”, the observer “is neither complacent nor unduly sensitive or suspicious”. Yet the observer is cognisant of “human frailty” and is all too aware of the reality that the judge is human. The observer understands that "information [as well as attitudes] consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-making”. Being “lay”, the observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge”. Though the observer may be taken to understand that the judge, by reason of professional training and experience and fidelity to 17 (2023) 97 ALJR 419 at [38]. 18 Ibid at [45]-[49]. -- 13 of 17 -- [2024] SASC 48 McDonald J 12 the judicial oath or affirmation, will have a greater capacity than most to discard “the irrelevant, the immaterial and the prejudicial” and to discharge the judicial function uninfluenced by past professional relationships, “the public perception of the judiciary is not advanced by attributing to the … observer a knowledge of the law and an awareness of the judicial process that ordinary experience “suggests not to be the case”. This indicates that the observer will see the person who is currently a judge as the person who was formerly an advocate and may be less inclined to dissociate the advocate from the cause advocated than would someone steeped in the adversary process with a cultivated sense of the ethics of the legal profession and the profundity of the judicial oath. Nor is the observer so abstracted and dispassionate as to be insensitive to the impression that the circumstances in issue might reasonably create in the mind of the actual party who is asserting an apprehension of bias. (Citations Omitted) The factors relied upon by Mr Lauro that form the basis of the application 53 The factors identified and relied upon by Mr Lauro as forming the basis of the application for Judge Dart to recuse himself fall into three categories. The first is the relationship between Judge Dart and Marble House that was the basis of the 2014 recusal. The second category involves those matters raised by Mr Lauro that relate to the circumstances of that recusal, including complaints made about Judge Dart since that time. The third category are those matters that have arisen during the course of the application for taxation. 54 Although Mr Lauro relies on the combination or cumulation of those matters, it is useful to consider each category separately. 55 Dealing firstly with Judge Dart’s relationship with Marble House. It was this matter that was central to the reasoning of Judge Dart in each of his Honour’s rulings. 56 The only evidence before me about the extent of that relationship is that, in 2014, Judge Dart had a commercial relationship that was of such a nature that it was the basis of a decision to recuse himself from litigation in which Marble House was one of the parties. Mr Lauro also relied on his affidavit, in which he deposes that, at the hearing on 8 November 2022, Judge Dart referred to one of the company directors as Luigi. It was submitted that this suggests that there might be more to the relationship between Judge Dart and Marble House (and Luigi) than may have initially been appreciated. 57 The starting point for a consideration of recusal on this basis is the nature of the current proceedings before Judge Dart. It is an application for the taxation of solicitor/client costs. The interested parties are Mr Lauro and Minter Ellison. Marble House, and its directors, have no interest of any kind in the outcome of the proceedings. It follows that, even if Judge Dart did in fact have a close friendship with one of the company directors (which has not been established), that of itself would not create a conflict of interest in an application for a taxation of -- 14 of 17 -- [2024] SASC 48 McDonald J 13 solicitor/client costs. In my view, Judge Dart was correct in declining to recuse himself on the basis of his relationship with Marble House. 58 I move on to consider the second category of matters that relate to the circumstances of the 2014 recusal, including subsequent complaints made by Mr Lauro and/or his father. 59 At the time that this appeal came on for argument, there was very limited information before me about any complaints that had been made by Mr Lauro about Judge Dart. There was no reference to any previous complaints in any of the records of outcomes or the transcripts of the 2022 proceedings before Judge Dart. 60 In his affidavit of 2 March 2023, Mr Lauro deposed “Further, over time, Dart J has also been the subject of disciplinary complaints by reason of his conduct in matters involving my father”,19 but he provided no detail as to the number or nature of the complaints, to whom they were made, and whether Judge Dart had been made aware of them. I permitted Mr Lauro an opportunity to file further affidavit material setting out the details of these complaints. 61 On 18 March 2024, I received a further affidavit from Mr Lauro dealing specifically with the issue of “complaints” made by Mr Lauro and/or his father about Judge Dart. In the affidavit Mr Lauro deposed that he and his father have made a number of complaints about Judge Dart to “relevant entities” and/or the Civil Registry since 2014. Mr Lauro provided the following extract from an email sent to the Civil Registrar by way of an example: CONFLICT CHECK Could you please inform me of what conflict of interest procedures are in place in Court, to ensure that Court staff and/or Judicial Officers, do not act in matters where there may be a conflict of interest with parties to litigation. By way of example, I refer to the alarming and scandalous circumstances in: action no. DCCIV-06-1499 where there has been the unexplained involvement of an interpreter unduly assisting the Defendant because related to the Plaintiff; in action no. SCCIV-12- 992 where the presiding Master Dart failed to disclose his conflict of interest with the Respondents and ultimately disqualified himself, for acting Master Roder to then just replicate Master Dart’s wrongful and conflicted position in any event); […] It is asked that no person and specially Judicial Officers previously or currently conflicted or especially in involved, in any way, with Minter Ellison Lawyers, Fletcher Lawson Lawyers, Antonio Tropeano, Trop Nominees and/or related entities be involved in any Lauro matters, or that no Lauro matters be again listed before any such conflicted persons, in the interest of justice and to safeguard the public interest and confidence in the Courts, which has been severely tarnished to date.” (emphasis added) 19 FDN 24 at [7]. -- 15 of 17 -- [2024] SASC 48 McDonald J 14 62 In about March 2020, Mr Lauro and/or his father also made a complaint about Judge Dart to the Office for Public Integrity and another to the “Legal Professional Conduct Board/Commissioner”. 63 In his affidavit, Mr Lauro expressed the view that Judge Dart is aware of these complaints, if not through the relevant administrative process that was utilised, then as a consequence of submissions that Mr Lauro has made in support of Judge Dart recusing himself from hearing the current proceedings. 64 There is merit to this limb of Mr Lauro’s application. I accept that Mr Lauro and/or his father have made the various complaints deposed to in the March 2024 affidavit. It is a significant step to make a complaint against a judicial officer and, regardless of whether the complaint has any foundation or merit, it creates a contest between the litigant and the subject of the complaint. That contest sits above and beyond the legal proceedings that are to be presided over by the relevant judicial officer where such a conflict exists. 65 It also, however, cannot be the case that, simply as a consequence of making a complaint, a litigant can ensure that a judge is required to recuse themselves from hearing the relevant proceedings.20 If that were so, there would be a straightforward route for a litigant to determine their judge of choice. 66 It is ultimately necessary to consider the number and nature of the complaints, the circumstances in which they were made and whether there was a genuine belief in the veracity of the complaints on the part of the litigant. It will always be a matter of degree and circumstance. 67 In my view, given the unusual history of this matter and the nature and number of the complaints made by Mr Lauro and/or his father, it is appropriate that Judge Dart be recused from presiding over the application for taxation of costs. In all of the circumstances, a fair-minded lay observer might reasonably apprehend that Judge Dart may not bring an impartial mind to the resolution of the issues that he is required to determine. I make it plain that, in making this order, I do not in any way suggest that the complaints are meritorious. I am not in a position to come to a view one way or another. 68 Given the decision that I have arrived at based upon the complaints made by Mr Lauro and/or his father, it is not necessary for me to consider the third category of issues raised in support of the application for recusal. I, however, make an observation about the most recent events that have been the subject of criticism by Mr Lauro. 69 It seems to me that a number of the issues raised by Mr Lauro are part of the “rough and tumble” of litigation, during which it is inevitable that decisions will 20 See, eg, Kumaragamage v Rallis (No 2) [2001] NSWSC 710 at [21] (Austin J); Girgis v Oueik [2018] NSWCA 314 at [44]-[48] (McColl JA and Simpson AJA). -- 16 of 17 -- [2024] SASC 48 McDonald J 15 be made for or against a litigant. As Wheelan J observed in Kazal v Thunder Studios Inc (California):21 Ultimately, the judge has to give final judgment. Judicial decisions usually involve one party being successful, and the other party being unsuccessful. The fact that a party has been unsuccessful should not, without more, lead the fair-minded lay observer to think that the judge has done other than bring an impartial and unprejudiced mind to bear on the matters in issue. 70 It would be a rare case in which a litigant agreed with a decision that was made contrary to their interests. The difficultly is that, once there a perception of bias on the part of a litigant, that perception colours how any adverse decision is received from the point that the perception was created. There is no doubt that Mr Lauro feels aggrieved about the most recent hearings in front of Judge Dart. However, it is most likely that sense of grievance is at least exacerbated by the belief by Mr Lauro that Judge Dart holds a bias against him and his father. It does not follow however that a far minded lay observer might apprehend, based on the manner in which Judge Dart has conducted the proceedings to date, that he may not bring an impartial mind to bear on the issues. Costs 71 Although the appellant made no application for costs against the respondent (given their neutral stance on the issue of recusal), he submitted that he should at least be refunded the appeal fees of $2,808.00 plus “a nominal amount for out-of- pocket expenses – totalling, say, $3,500.00”. This was on the basis of Mr Lauro’s contention that Judge Dart never should have been allocated this matter. 72 I do not propose to make that order. The issue of whether a particular judicial officer should be recused from hearing a particular case is often complex and nuanced. The very fact that minds have differed over this application is illustrative of this. In the circumstances I do not propose to adopt the unusual course of ordering the refund of the fees paid by Mr Lauro. 21 [2023] FCAFC 174 at [260]. -- 17 of 17 --