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D.M. Wright & Associates v Murrell[2021] QDC 93

D.M. Wright & Associates v Murrell[2021] QDC 93

DISTRICT COURT OF QUEENSLAND

CITATION:

D.M. Wright & Associates v Murrell [2021] QDC 93

PARTIES:

D.M. WRIGHT & ASSOCIATES

(Appellant)

v

MURRELL

(Respondent)

FILE NO/S:

BD 2586/2020

DIVISION:

Appeals

DELIVERED ON:

5 May 2021

DELIVERED AT:

Brisbane 

HEARING DATE:

29 March 2021

JUDGE:

Barlow QC DCJ

ORDERS:

The appeal be listed for further hearing on a date to be fixed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – TAXATION AND OTHER FORMS OF ASSESSMENT – APPEAL, REVIEW OR REFERENCE – RELEVANT PRINCIPLES – GENERALLY – application made for assessment of costs by costs assessor pursuant to Legal Profession Act – costs assessor completed assessment – appellant sought review of costs assessor’s decision on various grounds,including bias and reasonable apprehension of biased – whether assessor was biased whether assessor’s conduct gave rise to reasonable apprehension of bias.

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – BIAS – APPREHENSION OF BIAS – allegations of bias or an apprehension of bias made against costs assessor – basis of allegations include material published subsequent to the completion of assessor’s reasons – whether subsequent comments of costs assessor can be considered in determining questions of bias.

Legal Profession Act 2007, s 335

Uniform Civil Procedure Rules 1999, rr 720, 737, 738,765, 785

CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, considered

Concrete Pty Limited v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577, cited

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, applied

Gooliah v Minister of Citizenship and Immigration (1967) 63 DLR (2d) 224, cited

Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438, cited

Johnson v Johnson (2000) 201 CLR 488, cited

Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427

Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71, cited

Vakauta v Kelly (1989) 167 CLR 568, cited

Webb v The Queen (1994) 181 CLR 41, cited

 COUNSEL:  SK Hartwell for the appellant

IG Murrell, respondent, self-represented

 SOLICITORS:  D.M. Wright & Associates for the appellant

Introduction

  1. [1]
    This is an appeal from the decision of a magistrate.  The appellant (a solicitor practising under a firm name) at first instance applied for a review of the decision of a costs assessor pursuant to rule 742 of the Uniform Civil Procedure Rules 1999.  The assessment was of costs charged by the appellant to the respondent while he was the appellant’s client.  That application was dismissed.
  2. [2]
    The appeal is made on a number of grounds.  Grounds 4 to 9, which are the subjects of these reasons, concern whether the magistrate erred in failing to find there was actual bias, or a reasonable apprehension of bias, on the part of the assessor in carrying out the assessment.  As this is a serious allegation against the assessor, for which the appropriate remedy would be to order a new assessment, it is appropriate that this issue be dealt with first before, if necessary, dealing with any other substantive ground of appeal.[1]  That is how the parties and the court have treated the matter at the hearing of this appeal to date.
  3. [3]
    The appellant, in summary, contends that certain comments made by the costs assessor in his reasons and in other correspondence subsequent to the delivery of the assessment give rise to (at least) a reasonable apprehension of bias on his part. The respondent rejects this on the bases that the alleged acts indicating apprehended bias were ‘manufactured’ by the appellant and that the appellant has failed to demonstrate a connection between the acts and a conclusion of apprehended bias.

Background

  1. [4]
    For ease of reference, I shall refer to the parties by their roles in this appeal.  I am grateful to each of them for their assistance in condensing the overwhelming amount of material into a more manageable form.  This summary, by comparison, is very brief and is, I hope, relatively uncontroversial.
  2. [5]
    The appellant was engaged by the respondent in 2015 to provide legal services concerning the estates, respectively, of the respondent’s father, sister and mother.  By the end of that year, the respondent had terminated those engagements.  In early 2016, the appellant provided bills for costs (pursuant, in two cases, to a costs agreement). These were paid.[2] 
  3. [6]
    In February 2017, the respondent applied for an assessment of those costs pursuant to section 335 of the Legal Profession Act 2007.  An assessment was ordered on 24 February 2017.  The initial costs assessor appointed by that order was subsequently removed (on the appellant’s application, for apprehended bias) and replaced by a second costs assessor, a Mr Hallam, on 29 January 2018. 
  4. [7]
    Mr Hallam, the costs assessor whose decision was the subject of the magistrate’s decision that, in turn, is the subject of this appeal, filed a costs assessor’s certificate[3] on 30 October 2018, setting out the results of his assessment.  In short, he reduced the appellant’s costs by some $13,707 or approximately 30%.  The result was that the appellant was required to pay the respondent’s costs of the assessment and therefore to refund to the respondent the amount of $29,328.24.  The appellant was also required to pay the costs assessor’s fees of $13,950.  The certificate attached a schedule (called a ‘schedule of disallowances’) which particularised the deductions made against each account item and provided brief reasons for them.
  5. [8]
    Mr Hallam also provided a response to some written material that the appellant had provided to him in the course of the assessment.  He attached that response to the certificate.  This material and the response are discussed below.  The appellant, nonetheless, requested reasons pursuant to rule 738 on 28 November 2018.  Mr Hallam advised the parties that those reasons were ready on 10 December 2018.
  6. [9]
    Prior to Mr Hallam providing those reasons to the parties, there was a dispute about his fees and Mr Hallam refused to provide the reasons until he was paid.  Eventually he was ordered to do so by Magistrate Nunan on 15 April 2019.  Mr Hallam provided his reasons to the parties on 18 April 2019.
  7. [10]
    The appellant then filed an application for review of the assessment on 24 May 2019.[4]  Ground 1 of the application involved allegations of bias or a reasonable apprehension of bias against Mr Hallam, and it is this ground which corresponds to grounds 4 to 9 of this appeal.
  1. [11]
    The application for review was dismissed by Acting Magistrate Swan on 26 August 2020.  Her reasons were in two parts, dated 13 August and 26 August 2020 respectively.  This appeal is from that decision.

What material can be considered?

  1. [12]
    There is a preliminary question, raised by the respondent, about the material that should be before this court in determining this appeal. 
  2. [13]
    As was rightly put to the court by the appellant in his outline of argument, this is an appeal by way of rehearing.[5]  This means, in this case, that regard may be had only to the evidence that was before the learned magistrate, unless the court gives leave to rely on additional material.  No cross-appeal has been filed by the respondent that the magistrate was in error in referring to material which was potentially outside of what is permitted at law. 
  3. [14]
    However, given the respondent’s position as a self-represented litigant, it is beneficial to explain why his submission that certain material should not be considered must fail in any case.
  4. [15]
    The appellant relies substantially on statements in correspondence written by Mr Hallam, after the assessment was complete and the certificate was issued, as indicating that he was biased, or there is a reasonable apprehension that he was biased, when conducting the assessment.  The respondent submitted that ‘the appeal should be confined to the period April 2018[6] to 26 October 2018[7] and all correspondence after the latter date should be disregarded.’[8]  He quotes the following passage from the reasons of Edelman J in CNY17 v Minister for Immigration and Border Protection[9] in support of this proposition:

Apprehended bias must be assessed by reference to all the circumstances existing at the relevant time of enquiry.  If apprehended bias is assessed at the conclusion of a hearing, as the appeal in this case requires, then the reasons for decision might reveal matters relevant to the consideration of whether a reasonable apprehension exists.  It would be absurd if, on the one hand, remarks made by the decision maker during the course of a hearing could be considered as part of an assessment of the presence of reasonable apprehension of bias but, on the other hand, remarks at the conclusion of the proceeding could not. However, remarks at the conclusion of a proceeding or in reasons for decision are only one of the circumstances to take into account.  In Michael Wilson & Partners Ltd v Nicholls, a joint judgment of four members of this Court cautioned against the error of assuming a reasonable apprehension of a decision maker's bias and using comments in the reasons for judgment by the decision maker to "confirm, enhance or diminish the existence of a reasonable apprehension of bias."

  1. [16]
    The respondent’s submission misconstrues Edelman J’s reasoning.
  2. [17]
    Counsel for the appellant, Mr Hartwell, in reply also referred to the decision in CNY17.  Mr Hartwell referred to the joint judgment of Kiefel CJ and Gageler J, who were in dissent (though not on this point):[10]

The question whether conduct has resulted in a breach of the bias rule falls to be determined in light of the totality of the circumstances that exist at the time when that question arises.  Where the question arises for determination after [the decision-maker] has made a decision … the totality of the circumstances includes the decision and the reasons that [the decision-maker] has given for the decision.

  1. [18]
    Mr Hartwell submitted that the passage from Edelman J’s reasons stood for the opposite proposition to that contended by the respondent, that in fact the appellant was entitled to point to post-decision statements in providing evidence in support of a reasonable apprehension of bias.
  2. [19]
    Deane J, in Webb v The Queen,[11] relevantly said:

The fair-minded observer is a hypothetical figure.  While the question is not settled by any decision of the Court, it appears to me that the knowledge to be attributed to him or her is a broad knowledge of the material objective facts as ascertained by the appellate court, as distinct from a detailed knowledge of the law or knowledge of the character or ability of the members of the relevant court.  The material objective facts include, of course, any published statement, whether prior, contemporaneous or subsequent, of the person concerned.

  1. [20]
    The cautionary statement quoted by Edelman J in CNY17 stems from the reasons of the plurality in Michael Wilson & Partners Limited v Nicholls.[12]  The quoted passage is best understood in context:

An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue.  To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension).  Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgment” impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made.

  1. [21]
    In essence, the caution is to not conflate the tests for actual bias and apprehended bias.  If, as in this case, the relevance of the material is to demonstrate that a fair-minded lay observer may reasonably apprehend bias (given statements made within that material), then it is legitimate to consider a decision-maker’s reasons and any subsequent correspondence, in the same manner as any statement made by the decision-maker.  As the Full Court of the Federal Court opined in MZAEU v Minister for Immigration and Border Protection[13] in reference to the above passage:

We do not read the above as precluding reliance on reasons for decision in support of an argument of apprehended bias.  For example, the reasons for decision may record some aspect of the conduct of the hearing and be relied upon as evidence of that conduct.  Or they may disclose some fact not previously known to the parties which supports an allegation of apprehended bias.  However, as the above passage makes clear, one needs to be careful not to invert the proper order of inquiry by first assuming the existence of reasonable apprehension.

  1. [22]
    The same logic applies to subsequent statements by a decision-maker.  Accordingly, it is open for this court to consider the certificate, the assessor’s reasons and his subsequent correspondence in determining whether there was bias, either actual or apprehended, during the course of the assessment.

Statements alleged to give rise to inference of bias

  1. [23]
    The appellant broadly categorised the statements alleged to support a finding of bias, or at least of a reasonable apprehension of bias, into the following:
    1. (a)
      Mr Hallam’s comments, in his reasons for the certificate, on the reasonableness of the costs agreement and views on that topic expressed in an affidavit provided by the appellant;
    2. (b)
      Mr Hallam’s repeated comments on the identity of the person making submissions to him; and
    3. (c)
      Mr Hallam’s comments on (potential) offence he felt at submissions made to him on behalf of the appellant.
  2. [24]
    Much of this correspondence is contained in a large agreed bundle of documents which was marked as exhibit 1 in the court below.

Comments on the costs agreement and Tonkin affidavit

  1. [25]
    Mr Hartwell referred the court to a document produced by Mr Hallam on 7 February 2019 that was attached to his reasons for the assessment dated 18 April 2019.  The document was entitled ‘Reasons in relation to submissions of the respondent solicitors that the charges provided for in their cost agreement are reasonable and reliance on an affidavit of Therese Estelle Bernadette Tonkin sworn 19 May, 2017.’[14]
  2. [26]
    Mr Hartwell pointed to a number of passages in that document in which Mr Hallam was critical of the appellant’s costs agreements and the rates provided for in them, even after conceding that questions of fairness and reasonableness of those rates were irrelevant in the circumstances.
  3. [27]
    Specifically, Mr Hartwell referred to this statement from the assessor’s reasons:

I was taken aback by her statement that the costs are reasonable and would be allowed on a costs assessment.

  1. [28]
    To place that quote in context, it appears that the appellant had provided an affidavit from Ms Tonkin which set out her opinion as to whether the scale of fees set out in the costs agreement was within the normal range of legal fees for work of the nature provided.
  1. [29]
    Mr Hallam, correctly or incorrectly, questioned whether Ms Tonkin was in a position to provide such an opinion.  Continuing from the passage quoted above, he said:

I do not believe Ms Tonkin is in a position to make that statement.  Even if she was the appointed cost assessor that statement is made in circumstances where she has not taken into account objections, submissions and other matters raised during the assessment process.  That statement is usurping the cost assessor’s role and I have concerns as to how someone can swear to this statement.  I also note that that statement is beyond what she was instructed to do.

  1. [30]
    Mr Hallam then proceeded to go through particular views that Ms Tonkin had expressed in her affidavit and stated where he disagreed with the conclusions reached on whether the appellant’s scale of fees, and the fees charged for the work done, were reasonable.

Comments on Mr Hartwell

  1. [31]
    Mr Hartwell also referred to a number of occasions on which Mr Hallam referred to Mr Hartwell by name, despite receiving no submissions directly from him. First, in a letter from Mr Hallam dated 13 December 2018[15] regarding the appellant’s request for reasons pursuant to rule 738, he wrote:

Your counsel Mr. Hartwell cited many decisions in many of the matters on which you have requested reasons.

  1. [32]
    The request for reasons was contained in a letter from D.M. Wright & Associates dated 28 November 2018.[16]  The letter was not signed by Mr Hartwell, nor was there any reference to Mr Hartwell, directly or indirectly, in that letter. 
  2. [33]
    Mr Hallam then continued, in the same letter:

I note that there was hardly a decision I made that wasn’t met with lengthy correspondence from you raising arguments and issues and making allegations of lack of knowledge of legal costing principles, not affording natural justice and descending into the dust of conflict and apprehended bias.

  1. [34]
    The appellant, in a letter dated 21 December 2018, noted that Mr Hartwell had never provided submissions to Mr Hallam in this matter.[17]  Mr Hartwell responded to this in a letter dated 31 December 2018:[18]

I refer to paragraph 7 of your letter and note your reference to my statement as to the cases cited by Mr. Hartwell.  You state that you believe Mr. Hartwell has made no submissions to me in this matter.  I agree that I do not have any document which is titled “submissions” and which bears Mr. Hartwell’s signature, however I was always of the belief that he was the author of many matters raised in your letters containing submissions as to various matters.

  1. [35]
    Mr Hallam then noted that the appellant had referred to Mr Hartwell on at least three separate occasions in correspondence.  First, in a letter from the appellant to Mr Hallam dated 7 June 2018,[19] the appellant noted that Mr Hartwell would be assisting them in addressing issues raised by Mr Hallam.  Secondly, in a letter dated 2 July 2018,[20] the appellant referred to awaiting settled submissions ‘from Counsel.’  A letter from the appellant dated 8 August 2018[21] similarly referred to settlement ‘by Counsel.’
  2. [36]
    Mr Hallam said that these references to Counsel ‘clearly’ referred to Mr Hartwell in context.  It would be reasonable to think that Mr Hartwell was continuing to act as counsel in drafting the submissions in context, given the appellant’s 7 June letter.  Nonetheless, Mr Hallam accepted that he had received no formal submissions from Mr Hartwell and said that, despite not understanding the concern about his statements, he would be happy to withdraw them if it pleased the appellant.

Comments regarding offence

  1. [37]
    Mr Hallam made a further reference to Mr Hartwell in a letter dated 25 February 2019:[22]

The assessment has occupied approximately 2 years including the previous assessment that was terminated on your application.  It is my view that the assessment has been unnecessarily drawn out and you made many accusations against myself including apprehended bias and assertions that I did not understand the law of legal costing when I did not accept your submissions as to various issues.  Many of your submissions and accusations prepared either by yourself or Stephen Hartwell bordered on being offensive.  When I responded to these accusations I was met with a response that I was not entitled to defend or explain my actions.

  1. [38]
    Mr Hartwell submitted that the statements made in the 13 December, 31 December and 25 February letters demonstrate that Mr Hallam felt some sort of offence from statements made in correspondence to him, that may have affected his judgment in the assessment.

Decision at first instance

  1. [39]
    In reference to the reasons on the costs agreement, Acting Magistrate Swan held that no element of bias, actual or apparent, emanated from Mr Hallam’s comments regarding the reasonableness of the costs agreements and Ms Tonkin’s affidavit. 
  2. [40]
    Initially, it appears that Acting Magistrate Swan referred to a separate part of the appellant’s submissions, which were on the misapplication of section 341 of the Legal Profession Act 2007.  However, the reasons do indicate that her Honour did consider the questions of bias arising from Mr Hallam’s comments in the reasons on the costs agreement.
  3. [41]
    Her Honour wrote, at page 6 of her 13 August 2020 reasons:

The Solicitor submitted that the assessor’s views were unnecessarily provided by him.  Even had that been the case, it does not of itself in any way lean towards a conclusion of apprehended bias/bias against the assessor.

The Client also added that at no time during this course of alleged apprehended bias/bias on the assessor’s part, was there any formal attempt made by the Solicitor to challenge the assessor in the performance of his duties other than by a number of references in correspondence to the assessor.  The Client added that the first occasion upon which the Solicitor had claimed apprehended bias/bias against the assessor occurred on 10 July 2018.[23]

On either claim of apprehended bias, having read the pages in question, the only conclusion I can draw is that the assessor clearly disagreed with the Solicitor and was very clear that he had not conducted his duties in the manner so described by the Solicitor…

In my view, there is no element of apprehended bias/bias emanating from the assessor’s comments.

  1. [42]
    Similar comments were made by her Honour with regard to Mr Hallam’s views on Ms Tonkin’s affidavit.  It was held that Mr Hallam’s response was ‘fair and reasonable in the circumstances’[24] and that the relevant test for apprehended bias (‘discussed below’) was not satisfied here.
  2. [43]
    Regarding Mr Hallam’s comments about Mr Hartwell, her Honour found:[25]

The references to Mr Hartwell’s name do not suggest to me that the assessor was fixated on or had an irrelevant preoccupation with Mr Hartwell.  The references appeared to be sporatic [sic].  Considering the unusually large volume of documents involved, the references do not indicate a pattern that would suggest “fixation” or an “irrelevant preoccupation” by the assessor towards Mr Hartwell.  It is telling that when advised that Mr Hartwell had not made submissions to the assessor, the matter was quickly rectified by the assessor.

  1. [44]
    Regarding any potential offence Mr Hallam felt at the submissions and correspondence from the appellant, her Honour held that it was appropriate and reasonable to view this matter in the context of the comments made by the appellant to Mr Hallam, which included:
    1. (a)
      the appellant mentioning that the matter would go before the Court;
    2. (b)
      the appellant questioning Mr Hallam’s competence;
    3. (c)
      the appellant implying that Mr Hallam lacked the requisite knowledge of legal costing principles and misapplied them;
    4. (d)
      the appellant making allegations of bias (actual and apprehended), a denial of natural justice and claims of wasting costs; and
    5. (e)
      the use of the word ‘facile’ at some point in correspondence regarding Mr Hallam.
  2. [45]
    Her Honour held (at page 11):

While some of those comments attributed to the Solicitor are ordinary and unhelpful, there is nothing in the assessor’s responses/comments which would suggest that he was displaying signs of being “under attack or slighted” or displaying manifestations of “high personal indignation”[26] as a consequence.

The assessor commented that, being aware of the reason for the dismissal of the previous assessor on the grounds of apprehended bias/bias, he was very conscious of appropriately explaining in his reasons the rationale for his decisions.

The Solicitor also added that the assessor’s responses also showed a level of “high personal indignation”.  The noun “Indignation” is normally associated with emotions such as anger, rage and fury, for example.  There is no manifestation of those reactions evident in any of the Reasons for Decision that I have considered.

For the above reasons, I am unable to accept that a reasonable bystander would hold any thoughts of apprehended bias on the part of the assessor as referenced in CNY17.

  1. [46]
    Her Honour concluded that neither actual bias nor apprehended bias could be made out on the evidence.

Legal principles

Role of the costs assessor

  1. [47]
    The procedure for a costs assessment has some compulsory requirements which are set out in the UCPR at rule 720:

 720  Procedure on assessment

  1. (1)
    A costs assessor appointed to carry out a costs assessment is to decide the procedure to be followed on this assessment.
  2. (2)
    However, the procedure must be—
    1. appropriate to the scope and nature of the dispute and the amount in dispute; and
    2. consistent with the rules of natural justice; and
    3. fair and efficient.
  1. [48]
    It is trite to accept the proposition that, in order for a decision-making procedure to be consistent with the rules of natural justice, it must be free of any bias, actual or apprehended.

Actual bias

  1. [49]
    Actual bias is a serious allegation.  A claim of actual bias requires cogent evidence of a high probability of bias on the part of a decision-maker.[27]  In the absence of admissions of guilt or clear and public statements of bias, it is a difficult test to satisfy.
  2. [50]
    It need not be conscious bias and can be inferred from facts and circumstances.  However, it is a ‘grave matter’,[28] a finding which courts are often reluctant to make given the implications for the legal system as a whole and the rule against bias so often seen as a pillar of it.
  3. [51]
    One formulation of a test (where no express statement of bias is made) was given by North J in Sun v Minister for Immigration and Ethnic Affairs at 135, citing a Canadian case of Gooliah:[29]

Gooliah demonstrates that proof of actual bias by inference from the facts and circumstances of the case will usually involve an assessment of a series of actions by the decision-maker which, when taken together, form a whole picture leading to the conclusion of pre-judgment.  It is unlikely that one single action, as distinct from a pattern of conduct, will demonstrate actual bias.

  1. [52]
    Given that there is no ‘clear’ statement of bias, unless it can be ascertained from Mr Hallam’s various statements and conduct that he had actually pre-judged the matter when undertaking his assessment, then no finding of actual bias could be made.

Reasonable apprehension of bias

  1. [53]
    Comparatively, the test for a reasonable apprehension of bias is a lower bar.
  2. [54]
    The test for whether there is a reasonable apprehension of bias is colloquially referred to as the ‘double-might test’.  The seminal formulation of this test was provided by the High Court in Ebner v Official Trustee in Bankruptcy:[30]

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver … or necessity … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. 

  1. [55]
    The plurality continued to set out the steps required in attempting to apply the apprehension of bias principle:[31]

application [of the principle] requires two steps.  First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits.  The second step is no less important.  There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.  The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated.  Only then can the reasonableness of the asserted apprehension of bias be assessed.

  1. [56]
    The application of this test can vary depending on the identity of the actual decision maker.  In Hot Holdings Pty Ltd v Creasy McHugh J said:[31]

While the test for a reasonable apprehension of bias is the same for administrative and judicial-decision-makers, its content may often be different.  What is to be expected of a judge in judicial proceedings or a decision-maker in quasi-judicial proceedings will often be different from what is expected of a person making a purely administrative decision.

  1. [57]
    The ‘logical connection’ described in Ebner was further described by Carmody CJ in Amos v Wiltshire as a ‘causal nexus between the alleged bias and the vitiating effect’.[32] It must be clearly identified and logically explained.
  2. [58]
    The fair-minded lay observer was described by Kirby J in Johnson v Johnson:[33]

Such a person is not a lawyer.  Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided.  Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances.  The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers …  Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context.  Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.

  1. [59]
    This accords with the comments made by various members of the High Court in CNY17 outlined above.  The focus of the bias rule is as much ‘to preserve the public appearance of “independence and impartiality” … as it is to preserve the actuality.’[34]  ‘It is the court’s view of the public’s view, not the court’s own view, which is determinative.’[35]
  2. [60]
    It is accepted that, in some situations, comments and observations by decision-makers can ‘exceed what is a proper and reasonable expression of tentative views.’[36]  There is an ‘ill-defined line’ between comments which are helpful in narrowing and resolving the issues before a decision-maker and comments which demonstrate that a decision-maker had pre-conceived views that may be vindicated in the final decision in the matter.[37]  Such comments should be considered in the totality of the circumstances.

Application

  1. [61]
    The relevant question here is whether, on the material before the court, including giving due weight to the magistrate’s reasons, I am satisfied that Mr Hallam was actually biased, or that a fair-minded lay observer might reasonably apprehend that Mr Hallam might not have brought an impartial mind to the disposition of the costs assessment.
  2. [62]
    I have come to the same conclusion as her Honour on the first issue, namely that Mr Hallam was not actually biased.  The material on which the appellant relied, which I have described above, does not give rise to any inference that Mr Hallam was biased in his conduct of the assessment.  I discuss that material in more detail below.  There is nothing in the evidence to suggest, let alone to show clearly or to raise a clear inference, that Mr Hallam had in fact had some level of pre-judgment when undertaking his assessment.  The evidence does not indicate a ‘high probability of bias’ on Mr Hallam’s part.
  3. [63]
    Therefore, the remaining question is whether a fair-minded lay observer might reasonably apprehend that Mr Hallam might have been biased.
  4. [64]
    In answering the first limb of the test from Ebner, the appellant submitted the assessor’s comments about the costs agreement and the Tonkin affidavit, the comments about Mr Hartwell and the assessor’s view that some of the submissions made to him in the course of the assessment were ‘bordering on the offensive’, all demonstrated an attitude on his part that might lead the proverbial observer to consider that he might not have approached his assessment impartially.  
  5. [65]
    Relevantly to this submission, the appellant submitted that the magistrate misapprehended one of the grounds of review.  
  6. [66]
    With respect, I disagree.  The appellant alleged that the assessor was biased, in part, because his method of calculating costs was in alleged disregard or misapplication of ss 340 and 341 of the Legal Profession Act 2007.  In the relevant part of her reasons, her Honour was correctly dealing with that ground of review (forming part of the assertions of actual or apprehended bias).  She later dealt with section 341 separately, in considering the appellant’s separate ground of review concerning the assessor’s alleged misapplication of that section.
  7. [67]
    But, in any event, I also disagree with the appellant’s proposition described at [64] above.  In considering it, one must ask, is there a logical connection, or ‘causal nexus’ between those matters and a reasonable apprehension that Mr Hallam might have been prejudiced against the appellant, or have pre-judged the matter?  
  8. [68]
    With respect, I do not accept that a fair-minded lay observer, acting reasonably, would or might apprehend that Mr Hallam had been, or might have been, biased in reaching his decision.
  9. [69]
    Mr Hallam’s comments were made in the context of protracted back-and-forth discussions about the costs assessment he was undertaking or, in some cases, had already completed.  He is not a judge or a quasi-judicial officer and the expectations of him should be understood in that light. 
  10. [70]
    The appellant had submitted the Tonkin affidavit for consideration by Mr Hallam.  It is illogical for the appellant to submit such material for consideration, raising (or seeking to answer) an (irrelevant) question of the reasonableness of the method of calculation of the costs claimed, and then to turn around and suggest that it was inappropriate for Mr Hallam to comment on it and his doing so is an indication of possible bias and the consideration of irrelevant circumstances on his part.  Had he not addressed the affidavit, he could, perhaps rightly, have been accused of ignoring evidence on which the appellant had relied.
  11. [71]
    Mr Hallam’s comments about Mr Hartwell, similarly, would not raise a reasonable apprehension of bias.  The comments do not cast aspersions on Mr Hartwell, nor are they demonstrative of some sort of pre-occupation with, or dislike of, Mr Hartwell that might have led Mr Hallam to pre-judge the issues.  They simply identify who Mr Hallam believed was the author of the submissions, having been told by the appellant that he had engaged counsel to assist him with his submissions and, on occasions, to settle them.  That seems a reasonable conclusion to draw in the circumstances.  A fair-minded lay observer, aware of the totality of the circumstances and the nature of litigation and costs assessment, would likely reasonably believe or suspect that Mr Hartwell had been involved in the authorship of the submissions.  Furthermore, that lay observer would not see something untoward in such references.
  12. [72]
    The comments about potentially offensive submissions raise an interesting issue.  In Vakauta v Kelly, the plurality discussed the benefits of a ‘dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case.’[38]  It would be illogical if, in the course of submissions, a party to a proceeding could make a submission which is potentially offensive to a party or the court, and yet the other party or the court could not properly comment on the offensiveness of the remark (even without actually taking offence).  Furthermore, although some of the statements by Mr Hallam on which the appellant relies may be considered unjudicial (for example, referring to the appellant’s submissions in some places as making allegations, accusations and assertions and referring to having to defend himself), they are not surprising when considering the nature of some of the appellant’s submissions (including “accusing” Mr Hallam of bias, of incompetence and of not having the requisite knowledge of costing principles) and that Mr Hallam was a costs assessor, not a judicial or quasi-judicial officer.
  13. [73]
    A fair-minded lay observer, acting reasonably, would not reasonably apprehend that Mr Hallam, in using those terms and in commenting (some time after he had made his decision on the assessment) that some of the submissions ‘bordered on the offensive,’ demonstrated that he may have been biased against the appellant in making his decision.  Such an observer would, in the totality of the circumstances, accept such comments as being made in the context of what had been said by the appellants about Mr Hallam and Mr Hallam’s position, competence and alleged lack of knowledge as a costs assessor.  In the event, I am not satisfied that Mr Hallam was in fact offended, especially during the course of his assessment, nor that a reasonable lay observer might consider that he might have been offended or, if so, to such an extent that he might not approach his task impartially.
  1. [74]
    Taken together, the material suggests that Mr Hallam took a dim view of some of the material relied on and the submissions made in correspondence he had received from the appellant.  That material and the submissions were placed before him by the appellant for him to consider.  It is entirely consistent with the role of the costs assessor that he read such material and submissions and express his views on it.  If anything, it demonstrates that Mr Hallam had afforded the appellant natural justice in reading and considering his submissions and other material.  Indeed, there is nothing remotely improper in a decision maker, to whom inappropriate or offensive submissions have been made, noting the character of the submissions and, in effect, ‘dressing down’ the maker.  
  2. [75]
    In ground 9 of the notice of appeal, the appellant contends that the magistrate erred in concluding that there was no lack of procedural fairness.  The appellant did not deal with this ground in his submissions before this court.  In any event, the ground is difficult to understand.  It seems to be asserting that the magistrate did not understand that the assertion that there was a lack of procedural fairness (arising from a conversation between Mr Hallam and a barrister) was separate to that of bias, whereas the complaint of lack of procedural fairness to be addressed by her at this stage of her reasons arose from the complaint of bias.  In other words, if Mr Hallam was biased or there was a reasonable apprehension of bias, ipso facto there was a lack of procedural fairness.
  3. [76]
    As the appellant has not made any submission on this ground he has not demonstrated any error.  In any event, the complaint appears to relate to the fact that, after completing the assessment and signing the certificate, in response to a request by the appellant that he provide reasons for the amount of his fees as assessor, Mr Hallam told the appellant that he had consulted with other costs assessors and with a very experienced barrister in the field, all of whom agreed with his opinion that he was not required to give reasons for, or an explanation of, the amount of his own fees for the assessment.
  4. [77]
    This process does not amount to a lack of procedural fairness in conducting the assessment.  In speaking with those people, Mr Hallam was simply testing and confirming his own view that, having completed the assessment and stated the amount of his fees for doing so, he was under no obligation to give reasons for, or to explain, the amount of his own fees.  There is no evidence that Mr Hallam spoke with anyone else to obtain their views in the course of actually carrying out his assessment of the appellant’s costs.  Therefore, even if the appellant had persisted with this aspect of his appeal, it had no merit.

Conclusion

  1. [78]
    I do not think that Acting Magistrate Swan was in error in dismissing the application for review in relation to the grounds of appeal the subject of this decision.  Having reviewed the evidence myself, nothing demonstrates that Mr Hallam was in fact biased.  I do not consider that a fair-minded lay observer would (let alone might) reasonably apprehend that Mr Hallam might have been biased in undertaking the costs assessment.  Accordingly, I reject grounds 4 to 9 of the appeal.
  1. [79]
    After hearing from the parties, I shall set a date for the hearing of addresses on the remaining grounds of appeal.

Footnotes

[1] Concrete Pty Limited v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577, 611 (Kirby and Crennan JJ); Hills v Chalk [2009] 1 Qd R 409, 417-418 (Keane JA).

[2] Through indirect means, but the method by which the bills were satisfied is not relevantly in issue.

[3] Pursuant to Uniform Civil Procedure Rules 1999, r 737.

[4] There is no dispute that this was within the time allowed for the filing of the application for review by the order of Magistrate Nunan.

[5] Uniform Civil Procedure Rules 1999, rr 765(1), 785(1); Fox v Percy (2003) 214 CLR 118, 125; CSR Ltd v Della Maddalena (2006) 224 ALR 1, 7.

[6] No clear reason is given for why April 2018, and not 29 January 2018 (when Mr Hallam was appointed) is the relevant starting point for this enquiry.

[7] The date of what the respondent submits was the ‘last letter’ in relation to the certificate handed down on 30 October 2018: T36:18-20 (29 March 2021).

[8] Respondent’s outline of argument, p 12.

[9] (2019) 94 ALJR 140, [2019] HCA 50, [135] (footnotes omitted).

[10] CNY17, [20].

[11] (1994) 181 CLR 41, 73 (emphasis added).

[12] (2011) 244 CLR 427, 446 (emphasis in original).

[13] [2016] FCAFC 100, [45].

[14] Starting at page 400 of Part B of the Agreed Bundle of Documents.  Document marked “A”.  The affidavit in question was not put before the court.

[15] Page 594 of Part C of the Agreed Bundle of Documents.

[16] Page 564 of Part C of the Agreed Bundle of Documents.

[17] Page 600 of Part C of the Agreed Bundle of Documents.

[18] Page 607 of Part C of the Agreed Bundle of Documents.

[19] Page 221 of Part C of the Agreed Bundle of Documents.

[20] Page 282 of Part C of the Agreed Bundle of Documents.

[21] Page 360 of Part C of the Agreed Bundle of Documents.

[22] Page 645 of Part C of the Agreed Bundle of Documents.

[23] It appears that her Honour was referring here to a letter from the appellant to Mr Hallam dated 10 July 2018, which contained extensive submissions on various issues in the assessment.

[24] Reasons (13 August 2020), p 8.

[25] Reasons (13 August 2020), p 9.

[26] This is in reference to the appellant’s summary of argument at first instance, which cited Sackar J writing extra-judicially. See Singh v Minister for Immigration and Ethnic Affairs [1996] FCA 902.

[27] Aronson M, Groves M and Weeks G, “Judicial Review of Administrative Action and Government Liability” (Thomson Reuters Lawbook Co, 6th ed., 2017), 653, citing R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100, 116.

[28] Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71, 127 (Burchett J).

[29] Gooliah v Minister of Citizenship and Immigration (1967) 63 DLR (2d) 224.

[30] (2000) 205 CLR 337, 344 (emphasis added).  The test was applied in the case of a costs assessor by the Queensland Supreme Court in Davies v Noosa Cat (Australia) Pty Ltd [2014] QSC 153. 31                (2000) 205 CLR 337, 345.

[31] (2002) 210 CLR 438, 460.

[32] Amos v Wiltshire [2015] QCA 44, [35].

[33] (2000) 201 CLR 488, 509-510.

[34] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, [30].

[35] Webb v The Queen (1994) 181 CLR 41, 52 (Mason CJ and McHugh J).

[36] Concrete Pty Limited v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577, 610 (Kirby and Crennan JJ).

[37] Vakauta v Kelly (1989) 167 CLR 568, 572 (Brennan, Deane and Gaudron JJ).

[38] (1989) 167 CLR 568, 571.

Close

Editorial Notes

  • Published Case Name:

    D.M. Wright & Associates v Murrell

  • Shortened Case Name:

    D.M. Wright & Associates v Murrell

  • MNC:

    [2021] QDC 93

  • Court:

    QDC

  • Judge(s):

    Barlow QC DCJ

  • Date:

    05 May 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Amos v Wiltshire [2015] QCA 44
1 citation
Jump To
Cite 1 - [2015] QCA 44
CNY17 v Minister for Immigration and Border Protection [2019] HCA 50
4 citations
Jump To
Cite 1 - [2019] HCA 50
Cite 2 - [2019] HCA 50
Cite 3 - [2019] HCA 50
Cite 4 - [2019] HCA 50
CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140
1 citation
Jump To
Cite 1 - (2019) 94 ALJR 140
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577
3 citations
Jump To
Cite 1 - (2006) 229 CLR 577
Cite 2 - (2006) 229 CLR 577
Cite 3 - (2006) 229 CLR 577
CSR Limited v Della Maddalena (2006) 224 ALR 1
1 citation
Jump To
Cite 1 - (2006) 224 ALR 1
Davies v Noosa Cat (Australia) Pty Ltd [2014] QSC 153
1 citation
Jump To
Cite 1 - [2014] QSC 153
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
3 citations
Jump To
Cite 1 - (2000) 205 CLR 337
Cite 2 - (2000) 205 CLR 337
Cite 3 - (2000) 205 CLR 337
Fox v Percy (2003) 214 CLR 118
1 citation
Jump To
Cite 1 - (2003) 214 CLR 118
Gooliah v Minister of Citizenship and Immigration (1967) 63 DLR (2d) 224
2 citations
Jump To
Cite 1 - (1967) 63 DLR (2d) 224
Cite 2 - (1967) 63 DLR (2d) 224
Hills v Chalk[2009] 1 Qd R 409; [2008] QCA 159
1 citation
Jump To
Cite 1 - [2009] 1 Qd R 409
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438
2 citations
Jump To
Cite 1 - (2002) 210 CLR 438
Cite 2 - (2002) 210 CLR 438
Johnson v Johnson (2000) 201 CLR 488
2 citations
Jump To
Cite 1 - (2000) 201 CLR 488
Cite 2 - (2000) 201 CLR 488
Michael Wilson & Partners Pty Ltd v Nicholls (2011) 244 CLR 427
2 citations
Jump To
Cite 1 - (2011) 244 CLR 427
Cite 2 - (2011) 244 CLR 427
MZAEU v Minister for Immigration and Border Protection [2016] FCAFC 100
1 citation
Jump To
Cite 1 - [2016] FCAFC 100
R. v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd (1953) 88 CLR 100
1 citation
Jump To
Cite 1 - (1953) 88 CLR 100
Singh v Minister for Immigration and Ethnic Affairs [1996] FCA 902
1 citation
Jump To
Cite 1 - [1996] FCA 902
Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71
2 citations
Jump To
Cite 1 - (1997) 81 FCR 71
Cite 2 - (1997) 81 FCR 71
Vakuata v Kelly (1989) 167 CLR 568
3 citations
Jump To
Cite 1 - (1989) 167 CLR 568
Cite 2 - (1989) 167 CLR 568
Cite 3 - (1989) 167 CLR 568
Webb v The Queen (1994) 181 CLR 41
3 citations
Jump To
Cite 1 - (1994) 181 CLR 41
Cite 2 - (1994) 181 CLR 41
Cite 3 - (1994) 181 CLR 41

Cases Citing

Case NameFull CitationFrequency
D.M. Wright & Associates v Murrell (No 2) [2021] QDC 1412 citations
D.M. Wright & Associates v Murrell (No 3) [2021] QDC 1671 citation
1

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