Judgment

HIS HONOUR: What follows are my reasons for refusing the plaintiff’s application that I disqualify myself from hearing the proceedings because of an apprehension of bias. Bernard Gaynor and Garry Burns have been combatants opposed to each other in contentious and acrimonious litigation for a number of years. Their disputes have reached the NSW Civil and Administrative Tribunal (Burns v Gaynor [2015] NSWCATAD 211), the Court of Appeal (Burns v Corbett; Gaynor v Burns (2017) 96 NSWLR 247; [2017] NSWCA 3) and even the High Court of Australia (Burns v Corbett; Burns v Gaynor (2018) 92 ALJR 423; [2018] HCA 15). These proceedings are but a further manifestation of this litigious cavalcade. Mr Gaynor lives in Queensland. He earns a living as what he describes as an independent conservative blogger focusing on issues regarding national security, politics and the defence of the traditional family unit and western Christian civilisation and values. Mr Burns is a self-described gay rights activist who has uploaded material to his own website for public dissemination. It is fair to say that the views of Mr Gaynor and Mr Burns on several issues of public interest do not closely correspond and are effectively diametrically opposed. By his amended summons filed on 10 August 2018, Mr Gaynor seeks a series of orders, including but not limited to a declaration that all proceedings commenced by Mr Burns against him in the Local Court are void and of no effect because no lawful application or appeal has been made by Mr Burns under s 34B(2)(a) of the Civil and Administrative Tribunal Act 2013 or because the Local Court lacks jurisdiction under s 34 of the Local Court Act 2007 or s 49ZS and s 49ZT of the Anti-Discrimination Act 1977. This dispute was listed for hearing to commence before me on 2 May 2019. In the events that occurred, I proceeded to hear the matter and to reserve my decision. However, before that happened and even before the hearing proper commenced, Mr P E King of counsel for Mr Gaynor made an oral application without notice that I should disqualify myself upon the basis of apprehended bias. The application was efficiently argued in appropriate detail and can only presently be understood by reference to the several matters deposed to by Mr Gaynor in his affidavit sworn 2 May 2019 that was read without objection in support of the application.

Bernard Gaynor’s affidavit of 2 May 2019

Mr Gaynor swore that on 30 April 2019, my tipstaff sent an email to Mr Burns in the following relevant terms:

“Could you please confirm whether you will rely upon written submissions, and if so have them delivered to his Honour’s chambers on level 9 on the Law Courts Building.”

Although the affidavit does not say so, all parties were copied into that email. Mr Gaynor also said that Mr Burns has filed a submitting appearance in this matter. Although the affidavit does not say so, that information was unknown to anyone in my chambers until advised by the Crown Solicitor’s Office and Mr Burns later that day. My tipstaff also sent an email to Mr King. Again although the affidavit does not say so, all parties were copied into the email, on the same day in the following relevant terms:

“Could you please confirm whether these are the written submissions you rely upon, or whether you will rely upon new written submissions.”

Mr Gaynor had filed written submissions and submissions in reply in this matter in compliance with court orders. Also on 30 April 2019, my tipstaff sent an email to Mr Jeremy Southwood who appears for the New South Wales Attorney General. All parties were copied into the email. That email was relevantly as follows:

“The court file given to Harrison J does not have a copy of the Attorney-General’s submissions. Could you please either organise for a hard copy of the submissions to be delivered to his Honour’s chambers on level 9 of the Law Courts Building, or send a copy via email. Similarly, could you please confirm whether a court book will be provided and organise for delivery of the first, second, and third defendants’ submissions.”

Mr Gaynor thereafter proceeded to annex a copy of a post on the Facebook page of my tipstaff. The post refers to a production at the University of Sydney called “Peter Pansexual”. Mr Gaynor also annexed a copy of a review of Peter Pansexual written by Ms Georgia Kriz on 20 September 2013. This review states:

“Directors Tom Murphy and Bro Reveleigh brought together a loud, proud, fabulous and unashamedly crude hour and a half worth of consistently laugh-out-loud funny skits. Highlights included the ongoing storyline starring Captain Cock and her dildo hands, the beautiful Fran Gianpanni’s rendition of ‘I’d Gaffa Tape My Balls’ (sung to ABBA’s ‘The Winner Takes It All’), and a Julius Caesar/Romeo and Juliet/Mean Girls mashup sketch.

Head Writer, Blythe Worthy, stole the show with her consistently excellent performances and lovely voice. One of the show’s real strengths was its diverse, nuanced portrayal of the many shades of sexuality. While there were, of course, the requisite gags starring dildos and twinks, the show roamed far beyond stereotypes and sequin jokes and even came perilously close to salient social commentary in parts.”

Mr Gaynor then annexed a copy of the Facebook “Friends” of my tipstaff. The second page of this list shows that Fagan J’s tipstaff is a Facebook Friend of my tipstaff. Mr Gaynor said:

“[Fagan J’s tipstaff] is visible in the right hand column, fifth from the bottom.”

Fagan J’s tipstaff’s Facebook profile states that he is a tipstaff at the Supreme Court of New South Wales. Mr Gaynor then annexed a copy of a Facebook post made by Fagan J’s tipstaff on 31 October 2018. This post states:

“Thankfully my school didn’t sign this ridiculous, backward letter. But many did.

It argues that faith-based schools should be exempt from anti-discrimination law so that they may have the discretion to ‘employ [or not] staff who support the ethos of the school.’ Niiiiiice and subjective.”

Mr Gaynor then annexed a copy of a letter attached to the Facebook post made by Fagan J’s tipstaff on 31 October 2018 written by the Anglican Diocese of Sydney, dated 25 October 2018. This letter states:

“By and large across faith-based schools, the issue at hand is the right to employ staff who support the ethos of the school. Some schools require evidence of an active faith that is consistent with the philosophy and ethos of the school. In other schools, there is a preference for employment of active adherents of the faithful, but other staff, who may not personally identify with the faith, are still expected to support the overarching mission and ethos of the school. This is not inconsistent with the practice of most employers and their corporate goals, let alone political parties. It is overly simplistic to state that a teacher merely delivers academic content in the classroom. This ignores the powerful mentor and exemplar role all teachers play, and are expected to play, in the education of young people. Therefore, it is essential that a teacher supports the values, ethos and mission of the school as much as he or she can. It is not appropriate, for example, for a teacher to undermine or denigrate the beliefs and teachings of an employing school. This is a reasonable expectation not only of the employing school but also of many parents and families who have chosen the school for their children’s education.”

Mr Gaynor then annexed a copy of a Facebook post from the page “This is Oz” dated 22 August 2014 showing my tipstaff participating in “Wear it Purple Day”. A copy of the “About” section for the Facebook page, “This is Oz”, is also annexed. Under the heading “Company Overview” it states: “This Is Oz is an initiative of ACON”. The front page and page 24 of “Queer Honi” published on 3 October 2012 is thereafter annexed to Mr Gaynor’s affidavit. Mr Gaynor said that this was an edition of Honi Soit, which is the weekly student newspaper of the University of Sydney. Page 24 contains an article written by my tipstaff This article states:

“There are currently more than 5000 professional soccer players in Britain. Not a single one is openly gay. In Australia the same story applies, and out players in any of our football codes are few and far between. To paraphrase one British commentator, there is more chance of the next Pope being black than a footballer publicly coming out. Clearly something is wrong.”

Mr Gaynor then deposed to the fact that my tipstaff published an article in the Alternative Law Journal on 18 January 2019. The article is titled “Criminalising infection: Questioning the assumption that transmitting HIV constitutes grievous bodily harm”. He annexed part of the abstract of that article to his affidavit which is in these terms:

“This article considers whether, in light of medical advances in the treatment of human immunodeficiency virus, the intentional or reckless transmission of human immunodeficiency virus should constitute grievous bodily harm in New South Wales law. The author argues that as a result of the major medical advances in the treatment of human immunodeficiency virus, it should no longer be simply assumed that human immunodeficiency virus is grievous.”

Mr Gaynor then annexed a copy of the front cover of the ACON 2012/13 Annual Report and page 74 of that report. Page 74 lists my tipstaff as a staff or volunteer of the Aids Council of NSW (ACON). Mr Gaynor then annexed a copy of page 2 of the week 2, semester 1, 2013 edition of Honi Soit. This page contains a letter written by my tipstaff entitled, “In defence of Mardi Gras”. This letter states:

“Recently, I had the honour or marching with countless queer high schoolers as part of the ‘Wear It Purple’ Mardi Gras float. With the march fresh in my mind I feel it necessary to counter the pervasive belief that the Mardi Gras is no longer ‘radical’.”

Mr Gaynor then proceeded to annex a copy of a webpage authored by Mr Ehran Edwards dated 1 November 2012 and entitled, “Wear It Purple Documentary – Giving Rainbow People A Voice”. Page 3 of this webpage states that my tipstaff featured in the documentary promoting Wear it Purple. Mr Gaynor’s affidavit then annexes a copy of the “Careers” section of the Supreme Court of New South Wales webpage, detailing information about Tipstaves. This webpage states:

“Applying for a Tipstaff position at the Supreme Court

The Supreme Court offers a number of tipstaff positions each year. Tipstaves are employed as part of the personal chambers staff of a particular judge. They provide legal research, in-court duties and other support for that judge.

Tipstaff positions are generally not advertised and the selection of tipstaves is conducted directly by the judge(s).”

A copy of the front page and page 24 of the Anti-Discrimination Board of NSW 2012/13 Annual Report is then annexed to Mr Gaynor’s affidavit. Page 24 states that the Anti-Discrimination Board of NSW consulted with the Aids Council of NSW (ACON) during the reporting period. The President of the Anti-Discrimination Board of NSW is the third defendant. Mr Gaynor deposed to the fact that my tipstaff was a staff member or volunteer of ACON during this period. A copy of a post on the webpage of the Anti-Discrimination Board of NSW dated 31 August 2018 and titled, “Wear It Purple Day” is also annexed to Mr Gaynor’s affidavit. The President of the Anti-Discrimination Board of NSW is the third defendant. Mr Gaynor said that my tipstaff “has appeared in promotional material for the organisation Wear it Purple”. At paragraphs 42 to 50 of his affidavit, Mr Gaynor said this:

“42. I believe that [Harrison J’s tipstaff] has actively campaigned for ideas that are diametrically opposed to the ideas that I support as a practising Catholic.

43. I believe that the evidence shows that [Harrison J’s tipstaff] was selected as a tipstaff in a process conducted directly by his Honour Justice Harrison.

44. I believe that [Harrison J’s tipstaff] is linked to the third defendant through his participation with the Aids Council of NSW (ACON) and Wear it Purple and the third defendant’s leadership of an organisation that consults with the Aids Council of NSW (ACON) and promotes Wear it Purple.

45. The fourth defendant’s complaints include complaints about my views on homosexual activism, homosexual activist organisations, health impacts of homosexual activities and the Sydney Gay and Lesbian Mardi Gras.

46. I believe that the evidence shows that [Harrison J’s tipstaff] has participated in homosexual activism and been a member of homosexual activist organisations and also attended and supported the Sydney Gay and Lesbian Mardi Gras.

47. I believe that the evidence shows that [Harrison J’s tipstaff] sought to downplay the health risks of homosexual activity and to argue that laws criminalising the knowing transmission of HIV should be repealed.

48. I believe that the evidence shows that [Harrison J’s tipstaff] invited the fourth respondent to file submissions shortly before this hearing, despite the fact that the fourth respondent has filed a submitting appearance.

49. I believe that [Harrison J’s tipstaff’s] background and activities raises the prospect of actual and/or perceived bias in relation to his duties as Tipstaff to his Honour, Justice Harrison in this matter.

50. I believe that [Harrison J’s tipstaff’s] position as Tipstaff to his Honour, raises perceived bias in relation to his Honour’s ability to preside over this hearing.”

Mr Gaynor did not rely on any further evidence in support of his application. I note for completeness that Mr Gaynor was not cross-examined upon anything contained in his affidavit. Having regard to the fact that Mr Gaynor’s only active opponent is the Attorney General of New South Wales intervening, that fact is unexceptionable. I have therefore in the circumstances accepted Mr Gaynor’s evidence at its highest for the purposes of the present application. My uncritical summary of what Mr Gaynor has said, including his characterisation of the events he describes and the opinions he expresses, must be understood in that context.

Consideration

Mr King contended that this material would satisfy the well-known test for the identification of apprehended bias so clearly set forth in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 as follows:

“[7] 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.

[8] The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application 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.”

A case of some interest, to which Mr King did not refer me, is Hurley v McDonald’s Australia Ltd [2000] FCA 961. In that case, the offer of employment to a judge’s associate by a firm of solicitors that represented a party in large commercial litigation before the judge was found not to lead to a conclusion that there may have been a reasonable perception that the applicant had been deprived of her entitlement to a fair trial. As said by Dowsett J:

“[87] I doubt very much whether any reasonable person would expect that the former associate had significant confidential information relevant to this case or would be likely to communicate it if he did. Nonetheless, the risk of an unreasonable suspicion may have justified some attempt to protect the integrity of such a long trial…A fair assessment of all of the circumstances… would, in my view, lead inevitably to the conclusion that there was no basis to suspect that there had been any unfairness, let alone a miscarriage of justice.”

The transcript will reveal that when Mr King made his application, and after I had had an opportunity to read Mr Gaynor’s affidavit, I asked Mr King, in terms, what any of this had to do with me. Mr King’s response was as follows:

“We have a situation where a member of your Honour’s personal staff, a gay rights activist, has sent unsolicited emails, apparently on behalf of the Court, in a way which is not normal. One would have thought that such issues would have been done [sic] by direction. They are unnecessary because it was clear that Justice Bellew had made clear and certain directions, including making an order for costs against the defendant, about the following submissions, which in ours were clearly complete. So there is an impression of ‘Is this all you’ve got’.”

I was not by my remark intending to depreciate the debate or the understandable importance to Mr Gaynor of his desire for, and his entitlement to, a fair trial. I was, on the contrary, genuinely confused about the possibility of there being any discernible or suspected connection between the evidence relied upon on the one hand and the existence of a perception of apprehended bias on my part on the other. Although Mr King’s concerns were ultimately explained, they appeared also to be based upon the suggestion that the inquiry was improper because the parties concerned had entered submitting appearances. That fact had not been communicated to me before the inquiry was made. I am in any event unable to understand the relationship, if any, between the request made by my tipstaff with my authority in those terms and any apprehension of bias. It was in that context that I said this to Mr King at the time:

“I don’t mean to interrupt you but could I do so by saying I have only been in this job for 12 or so years but it has become quite a regular occurrence when matters are listed for hearing and as the hearing approaches before [sic, for] the Court, either through an associate or a tipstaff, to enquire of parties whether or not they propose to make submissions or whether they want to update their submissions. We sometimes have to come to Court and have to deal with matters of which we have not been given any notice. On one view the present application is an example of that.”

The personal views of my tipstaves are largely unknown to me, except to the extent that they are revealed in the context of the relationship I have with them as my assistant in chambers. My current tipstaff’s employment was neither influenced by nor dependent upon his social or political views. It was, in contrast, significantly informed by his outstanding academic and employment credentials. However, even assuming it were otherwise, and I was intimately acquainted with his views and opinions on everything, I fail to understand what is said by Mr King to be the connection between any of my tipstaff’s views and the perception that I might not bring an independent and unbiased mind to the resolution of the dispute in this case. In my limited experience, cases are decided by judges, not their staff. The fact that a judge may engage his or her tipstaff in a vigorous and lively debate about issues that arise in cases heard by the judge is a circumstance far removed from instances where that discussion is influenced by a tangible connection with, or potential interest that the tipstaff might have in, the outcome of the proceedings. The difficulty with Mr King’s submissions is that they fail to identify, except perhaps by innuendo, how an independent observer might construe the evidence in Mr Gaynor’s affidavit in a way that would cause him or her to feel that I was possibly unable, or that there was even an appearance that I was possibly unable, to bring an impartial mind to the resolution of the dispute. As it was put in Antoun v R (2006) 224 ALR 51; [2006] HCA 2:

“[83] It should be noted that the test as stated [in Ebner] emphasises that a possibility, that is relevantly to say, the appearance of a possibility of an absence of an impartial mind on the part of the judge, may lead to disqualification. Their Honours also make it clear that the test does not involve, or require an inquiry into the facts or matters which brought the apprehended state of mind of the judge to one of apparent bias. It follows that the fact that the case may not only at the time, but also in retrospect, seem to be a strong one, indeed a very strong one, does not absolve the judge from giving it a fair hearing, and attending carefully and open-mindedly to the submissions of the parties made at appropriate times.”

It seems to be uncontroversial as a factual matter that Mr Gaynor and Mr Burns have strongly held and strongly expressed views on issues of gay rights, and associated issues such as same sex marriage. It is important as well to observe that these proceedings are not concerned, if indeed any similarly constituted proceedings could ever be concerned, with an assessment of the “correctness” or “appropriateness” of these competing views or with the expression by me of a preference for either the views of Mr Gaynor or Mr Burns. The only relevance of their respective positions on such matters is that they have been the catalyst for Mr Burns’ complaints about Mr Gaynor that have found their way to the Local Court of New South Wales in the fashion earlier described. Put another way, there is no necessary connection between the subject matter of Mr Burns’ complaints to which Mr Gaynor takes exception on the one hand and the resolution of the jurisdictional and constitutional issues that they have generated on the other hand. The jurisdictional and constitutional issues could just as easily have been generated by a dispute between a resident of Queensland and a resident of New South Wales over water licences and allocations in the Murray Darling Basin. An alarming and troubling aspect of the present application is the insidious way in which the personal interests and activities of a member of my court staff have become thrust, without any forewarning, knowledge or permission, into the public arena of these proceedings in the guise of what is alleged to be a concern that there is or may be a reasonable apprehension that I may not be impartial. Some members of the community might struggle to make that connection. I count myself among people in that hypothetical group. The significance of anything revealed by the evidence in this case to any issue I have to determine is about as high as it would be if I were deciding a case dealing with the water allocation example I gave earlier and one of the parties discovered that my tipstaff had done work experience on a cotton farm in the basin or was an enthusiastic supporter of downstream wetlands integrity. Annexure “BG G” to Mr Gaynor’s affidavit is described by him as a “copy of a post on the Facebook Page of [my tipstaff]. This Facebook post refers to a production at the University of Sydney called ‘Peter Pansexual’.” That annexure contains an image of a flyer for Peter Pansexual adjacent to my tipstaff’s Facebook profile and, taken at its highest, appears merely to establish that approximately seven years ago my tipstaff posted a copy of a flyer for Peter Pansexual on his Facebook profile. Precisely how that annexure could establish that my tipstaff “has participated in homosexual activism”, to use Mr Gaynor’s language, is difficult to see. At best, the annexure provides support for the view that my tipstaff may have an interest in theatre. Similarly, the relevance of a positive review of Peter Pansexual (annexure “BG E” in Mr Gaynor’s affidavit), which makes no reference to my tipstaff, is equally difficult to determine. Annexure “BG G” is described by Mr Gaynor as “a copy of a Facebook post made by [Fagan J’s tipstaff] on 31 October 2018”. Mr Gaynor did not depose to any evidence that my tipstaff “liked”, commented upon, or endorsed that post in any way. I am unable to understand the relevance of a Facebook post made by another judge’s tipstaff to the application that I recuse myself because of my tipstaff’s alleged political views. Finally, Mr Gaynor deposed to the abstract of my tipstaff’s article published in 2019 in the Alternative Law Journal entitled “Criminalising Infection: Questioning the assumption that transmitting HIV constitutes grievous bodily harm”. The abstract, attached as annexure “BG L” to Mr Gaynor’s affidavit, states:

“This article considers whether, in light of medical advances in the treatment of human immunodeficiency virus, the intentional or reckless transmission of human immunodeficiency virus should constitute grievous bodily harm in New South Wales law. The author argues that as a result of the major medical advances in the treatment of human immunodeficiency virus, it should no longer be simply assumed that human immunodeficiency virus is grievous. The article also considers a related question of statutory interpretation, namely how should the word ‘disease’ in s 4(1)(c) of the Crimes Act 1900 (NSW), which provides that grievous bodily harm includes ‘a grievous bodily disease’, be interpreted”.

Mr Gaynor relies upon the article as evidence for the proposition that my tipstaff has argued “that laws criminalising the knowing transmission of HIV should be repealed”. My tipstaff’s article argues no such thing. On the contrary, as the abstract reveals, the article argues that “as a result of the major medical advances in the treatment of HIV, it should no longer be simply assumed that HIV is grievous”. The article also considers a question of statutory construction. I am unable to see how an article about the criminal law of assault and HIV has any relevance to establishing my tipstaff’s political views or in turn how those alleged political views about HIV have anything to do with an apprehension of bias. The authorities make it clear that the wisdom that informs this area of discourse is derived from an understandable and commendable insistence upon judicial impartiality and independence. Except in cases where actual bias is alleged, the appearance of the possibility of the absence of an impartial mind is enough because it may lead to a perception that the result might not be fair, not that it is actually unfair. In the present case, without feigned ingenuousness, I am unable to see how anything upon which Mr Gaynor wishes to rely in this application could raise or support the reasonable perception of an appearance that I could not or might not bring an independent or impartial mind to the task of deciding this case. In the circumstances I considered that the application that I recuse myself should be dismissed.

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Amendments

09 May 2019 - Paragraph 8 - Typographical error amended

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