Judge failed to disclose to a defamation defendant her working relationship with the plaintiff’s counsel … Non recusal upheld on appeal with help from the fair minded lay observer – who was not in possession of all the facts … Fair minds and bad looks … Sandy Groper reports
Dr Mark Reynolds, the forensic investigator who got up the wick of defrocked Perth barrister Lloyd Rayney, has been unsuccessful in challenging the home town decision of HH Jenni Hill, in which she refused to recuse herself from delivering judgment in the defamation case Rayney v Reynolds.
“There is no need for a cold case review, the offender was identified … None of this talk about ‘Hey someone else did it’.”
At a judge alone trial conducted by Brian Martin, Rayney was found not guilty of the murder – a decision that was upheld on appeal.
For his remarks at the seminar Justice Hill slapped Reynolds with $350,000 in aggravated damages and $88,400 in interest.
While waiting for the judgment to emerge, Reynolds discovered that Rayney’s counsel, Martin Bennett, has been a long standing professional colleague of the judge, both as a her employer at the Bennett law shop and as partners. A total of 11 years between 1994 and 2005.
Hill subsequently worked for other firms before arriving at the Supreme Court in June 2019. One year after her appointment to the court she sat on Rayney’s defamation case, where she failed to disclose to Reynolds her long association with Bennett.
Reynolds brought an application, prior to the judgment being delivered, that Hill recuse herself for apprehended bias. In an unprecedented blitz of speed, Hill turned out her reasons on September 21, 2022 – within two days of the hearing.
“I do not consider that the failure to disclose the prior working relationship deprived the defendant of any opportunity to advance arguments or submissions at trial. Accordingly, the failure to disclose the prior working relationship was of no legal consequence.”
Anyway, she added, all the information about her career is on the WA Supreme Court web site, if you look hard enough.
The WA court of appeal – Robert Mazza, John Vaughan and Debra Mullins (imported from Queensland) – upheld Hill’s decision not to recuse herself.
Curiously enough, only last month, Mazza and Vaughan, with Robert Mitchell, declared in the Goldsmith case:
“A litigant has no duty to investigate the present or past personal affairs of a judge determining their case and there are sound public policy reasons against the formulation of such a duty.”
In upholding Hill’s decision, the appeal bench engaged the services of the fair minded lay observer, with this result:
Strangely, other related considerations were not addressed.
Martin Bennett was mentioned eight times during her swearing-in on June 7, 2019, and Hill herself referred to him as “Martin”:
“I recognise the small and not so small gestures that Martin, in particular, made to support me in my career, from validating my opinions in front of clients, to providing me with opportunities to work on the most difficult and challenging cases.”
All this one year before she tried Rayney’s case, run by Bennett – not exactly the distant, forgotten connection the appeal court relied on.
In a 2013 interview for the Trailblazing Women and the Law oral history project for the National Library of Australia, she was glowing about Bennett and the assistance he gave her.
Maybe, Reynolds did not have these transcripts.
We asked the WA Supreme Court whether Bennett was a guest at Hill’s swearing in, but we have received no reply.
Here was an instance were the trial judge determined her own recusal application, which was upheld by colleagues on the court, with one foreign judge moored alongside.
The failure to disclose her association with Bennett has squeaked through the narrow eye of the apprehended bias needle – yet regardless it remains a bad look to non-judicial observers with fair minds.
It’s precisely the sort of thing the Australian Law Reform Commission was on about in its judicial bias report. Judges hearing and determining their own bias applications “is not conducive to public perceptions of procedural fairness”.
And here we have a discussion that, for whatever reason, did not consider Hill’s effusions about Bennett during speeches and interviews just shy of the trial date.
For a refresher on Justice Hill’s litany of delays, visit here and here.