Soulis v R & a Henry Auto Repairs (No 1)

[2022] NSWSC 966

Supreme Court

New South Wales

Medium Neutral Citation:

Soulis v R & A Henry Auto Repairs & Ors (No 1) [2022] NSWSC 966

Hearing dates:

31 May 2022

Date of orders:

31 May 2022

Decision date:

31 May 2022

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

(1)   I fix the hearing of the plaintiff's notice of motion of 27 April 2022, and the first, second and third defendants' motion of 26 May 2022, before me on 30 June 2022.

(2)   I direct the first, second and third defendants to file all evidence in support of their notice of motion by 7 June 2022.

(3)   I direct the plaintiff to serve all evidence in response to the defendants' notice of motion by 21 June 2022.

(4)   I direct the parties to provide a joint court book to my Associate containing all evidence, pleadings and submissions by 4pm on 29 June 2022.

Catchwords:

PRACTICE AND PROCEDURE – Recusal application – No point of principle

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Legal Aid Commission Act 1979 (NSW)

Cases Cited:

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Category:

Principal judgment

Parties:

Andrew Soulis – Applicant
R & A Henry Auto Repairs Pty Ltd – First Respondent
Mark Gary Henry t/as R & A Henry Auto Repairs Pty Ltd – Second Defendant
Brett Alan Henry t/as R & A Henry Auto Repairs Pty Ltd – Third respondent

Representation:

Counsel:
Self-represented – Plaintiff/Applicant
J Burke – Defendants/Respondents

Solicitors:
Self-represented – Plaintiff/Applicant
J Burke Law – Defendants/Respondents

File Number(s):

2021/365912

Publication restriction:

Nil

Judgment – EX tempore (REVISED)

1. By a summons filed on 24 November 2021, the plaintiff commenced proceedings pursuant to s 83(1) of the Civil and Administrative Tribunal Act2013 (NSW). The matter has previously come before me for directions and was adjourned until today pending the outcome of an application by the plaintiff, who is self-represented, for a grant of legal aid. The Legal Aid Commission (the Commission) had previously refused that application and the plaintiff brought an appeal against that decision. That appeal engaged the provisions of s 57 of the Legal Aid Commission Act1979 (NSW) and required the proceedings to be further adjourned until such time as that appeal was determined. In the intervening period, I have been informed that the plaintiff's appeal against the Commission's determination has been dismissed.

2. As foreshadowed on the last occasion, the defendants have now filed a notice of motion seeking an order for summary dismissal of the proceedings. In addition to that motion, there is a motion previously filed by the plaintiff seeking a review of orders made by a Registrar in the proceedings on 11 April 2022.

3. On 30 May 2022, my Associate received correspondence from the plaintiff which attached an application that I recuse myself from the proceedings on the basis of what was said to be actual and apprehended bias. That application was accompanied by a plethora of material which was said to support it.

4. Amongst the allegations made by the plaintiff are that I "chastised" him by making comments as to the fact that it was not the role of the Court to give legal advice to an unrepresented litigant. It is said that I also instructed a third party to "breach strict New South Wales privacy laws without first obtaining the plaintiff's consent in order to obtain confidential evidence held by a New South Wales government agency". As far as I am able to ascertain, that seems to be a reference to the fact that I exhorted the parties on the last occasion to enquire of the Commission as to the status of the plaintiff's appeal so that the matter could proceed. It is also suggested that I made a number of determinations of the plaintiff's notice of motion seeking a review of the Registrar's orders without addressing or canvassing any of the evidence which was filed in support of that motion. At this point, I have made no determination of any aspect of the plaintiff’s motion at all. It is also suggested that I provided legal advice to the defendants as to how they should go about obtaining evidence from a government agency. That, it is said, was "in complete violation not only of the rules of court, but of (my) judicial oath, as well as being a violation of the strict privacy laws surrounding the release of confidential information held by New South Wales government agencies". No such advice has ever been provided.

5. Having reviewed the entirety of the material, including the transcript of what was said on the last occasion, none of the assertions made by the plaintiff in support of the application can possibly be made out. The suggestion that I have demonstrated, in anything I have said or done, any degree of actual bias is one that I firmly reject. As far as any suggestion of apprehended bias is concerned, the test is an objective one, namely 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 issues that the judge is required to decide. [1] Nothing said or done by me at any time meets that test. For those reasons, I decline to recuse myself from the further hearing of the proceedings.

   1. Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63.

6. As I have already indicated, there are two notices of motion which will require determination. The transcript of today's proceedings will indicate that when given the opportunity, the plaintiff informed me that he had no further evidence to file in support of his notice of motion and did not object to a hearing date being allocated. As a matter of fairness, it will be necessary for the Court to give the plaintiff the opportunity to file any evidence in response to the motion filed on behalf of the defendants and I propose to incorporate that in the orders that I will make in a moment. It will also be necessary for the Court to be provided with a joint court book prior to the hearing of the notices of motion containing all pleadings, evidence and submissions.

7. For those reasons, I make the following orders:

1. I fix the hearing of the plaintiff's notice of motion of 27 April 2022, and the first, second and third defendants' motion of 26 May 2022, before me on 30 June 2022.

2. I direct the first, second and third defendants to file all evidence in support of their notice of motion by 7 June 2022.

3. I direct the plaintiff to serve all evidence in response to the defendants' notice of motion by 21 June 2022.

4. I direct the parties to provide a joint court book to my Associate containing all evidence, pleadings and submissions by 4pm on 29 June 2022.

Endnote