A1 & Anor v Betty King QC & Ors [1996] FCA 436

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION BETWEEN: No. VG 75 of 1996 A1 First Applicant and A2 Second Applicant and BETTY KING Q.C. First Respondent and MINISTER FOR JUSTICE FOR THE COMMONWEALTH OF AUSTRALIA Second Respondent and MINISTER FOR POLICE AND EMERGENCY SERVICES FOR VICTORIA Third Respondent and INTER-GOVERNMENTAL COMMITTEE Fourth Respondent and NATIONAL CRIME AUTHORITY Fifth Respondent and JOHN BROOME Sixth Respondent MINUTES OF RULING The application made on behalf of the respondents that I disqualify myself from hearing this proceeding is refused.

MINUTES OF ORDER Order that the respondents pay the applicants' taxed costs of and incidental to the application. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION BETWEEN: No. VG 75 of 1996 A1 First Applicant and A2 Second Applicant and BETTY KING Q.C. First Respondent and MINISTER FOR JUSTICE FOR THE COMMONWEALTH OF AUSTRALIA Second Respondent and MINISTER FOR POLICE AND EMERGENCY SERVICES FOR VICTORIA Third Respondent and INTER-GOVERNMENTAL COMMITTEE Fourth Respondent and NATIONAL CRIME AUTHORITY Fifth Respondent and JOHN BROOME Sixth Respondent Coram: Merkel J. Place: Melbourne Date: 31 May 1996 REASONS FOR RULING Background facts The present matter, inter alia, relates to claims by the applicants challenging the validity of -

(a) certain notices, issued during 1995, referring a matter to the National Crime Authority ("the NCA") pursuant to ss.13 and 14 of the National Crime Authority Act 1984 ("the NCA Act"); (b) a summons to appear before the NCA and two notices to produce documents to the NCA issued pursuant to ss.28 and 29 of the NCA Act respectively. An issue in the proceeding is whether the notices of referral complied with ss.13(2) and 14(2) of the NCA Act. Under each of those sub-sections a notice referring a matter to the NCA for investigation: (a) shall describe the general nature of the circumstances or allegations constituting the relevant criminal activity; (b) shall state that the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the Commonwealth or a law of a Territory but need not specify the particular offence or offences; and (c) shall set out the purpose of the investigation. For the purposes of the present application, using the Commonwealth Notice to the NCA dated 9 November 1995 as the example, s.13(2) was purportedly complied with by the following statements being incorporated into the notice of referral as its Schedule. SCHEDULE MATTER BEING REFERRED

1. Whether a relevant offence has been, or is being, committed as alleged in clause 2, and, if so: (a) the identity of the person or persons involved; and (b) the nature of their involvement. GENERAL NATURE OF THE CIRCUMSTANCES OR ALLEGATIONS CONSTITUTING THE RELEVANT CRIMINAL ACTIVITIES (PARAGRAPH 13(2)(a) OF THE ACT)
2. The general nature of the allegations is that members of certain clubs, such clubs having been identified to me by the Authority on 9.11.1995, or persons associated with the members or clubs, may have been, or may be being, in concert with one another or other persons, engaged in one or more of the following activities: (a) illegal importation of narcotic goods, the possession of illegally imported narcotic goods or the conveyance of illegally imported narcotic goods; (b) bribery or corruption of officers of the Commonwealth or a Territory; (c) tax evasion; (d) armament dealings; (e) fraud on the Commonwealth; (f) violence; (g) theft; (h) forgery of Commonwealth documents; (i) currency violations; and (j) money laundering, within the meaning of section 81 of the Proceeds of Crime Act 1987 (Commonwealth), that the Authority suspects may have been, or may be, connected, directly or indirectly, with a course of activity involving the commission of one or more of the offences referred to in clause 3; STATEMENT OF RELEVANT OFFENCES AGAINST ONE OR MORE LAWS OF THE STATE OF COMMONWEALTH OR A TERRITORY (PARAGRAPH 13(2)(b) OF THE ACT)
3. For the activities described in paragraphs 2(a) to (i) (inclusive), the relevant offences are, or include, an offence or offences against one or more laws of the Commonwealth or a Territory, each being an offence: (a) involving 2 or more offenders and substantial planning and organisation; and (b) involving, or of a kind ordinarily involving, the use of sophisticated methods and techniques; and (c) committed, or of a kind ordinarily committed, in conjunction with other offences of a like kind; and (d) involving fraud, tax evasion, illegal drug dealings, bribery or corruption of an officer or officers of the Commonwealth or a Territory, armament dealings, currency violations, theft, violence or matters of the same general nature as one or more of those matters. PURPOSE OF THE INVESTIGATION (PARAGRAPH 13(2)(c) OF THE ACT)
4. The purpose of the investigation is:

(a) to collect and analyse criminal information and intelligence relating to the relevant criminal activities, and to disseminate that information and intelligence to: (i) law enforcement agencies; and (ii) a person authorised under subparagraph 11(1)(a)(ii) of the Act; and (b) to make appropriate recommendations to the Commonwealth Minister, or the appropriate Minister of the Crown of a participating State, being recommendations for reform of: (i) the law relating to relevant offences; and (ii) relevant administrative practices; and (iii) the administration of the courts in relation to trials of relevant offences; and (c) to investigate the matter in so far as: (i) a relevant offence (including an offence deemed to be a relevant offence under subsection 4(2) of the National Crime Authority Act 1984) is an offence against one or more laws of the Commonwealth or a Territory; or (ii) the relevant offences (including an offence deemed to be a relevant offence under subsection 4(2) of the National Crime Authority Act 1984) are, or include, an offence or offences against one or more laws of the Commonwealth or a Territory; and (d) to identify any offender or offenders; and (e) to assemble evidence that would be admissible in the prosecution of offenders; and (f) to give the evidence to: (i) the Attorney-General of the Commonwealth or the State, as the case requires; or (ii) the relevant law enforcement agency; or (iii) any person or authority (other than a law enforcement agency) that is authorised by or under a law of the Commonwealth, or of the State or Territory, to prosecute the offence. 5. Definition In this notice, unless the contrary intention appears, "person" means a natural person, a body corporate or a body politic. A similar form, with appropriate variations, was used in relation to the notices of referral under s.14(2). It is contended by the applicants, inter alia, that the generality of the matters stated in the Schedules is such that they do not comply with the mandatory requirements of ss.13(2) and 14(2). The proceeding was listed for hearing before me on 27 May 1996. Shortly prior to the matter coming on for hearing I informed counsel for the parties that I had given advice to the NCA approximately 6-7 years ago in relation to the validity of certain notices of referral issued under the NCA Act in an unrelated matter. I indicated that I could not recall the detail of the advice or of the notices but regarded the giving of the advice as a matter that ought to be disclosed to the parties. I was informed by senior counsel for the respondents that the respondents wished to make an application that I disqualify myself from hearing the case on the ground that I had given advice to the NCA on a question of law arising in the present proceeding. Initially, the respondents wished to make their application without disclosing the advice to the applicants, as they claimed the advice was the subject of legal professional privilege which they wished to maintain. In an endeavour to facilitate access to the advice, certain undertakings were proffered to the Court by senior and junior counsel on behalf of the applicants in order to protect legal professional privilege and confidentiality in relation to the advice. Senior counsel for the respondents then handed two copies of the advice to the court and with the agreement of the respondents, I directed that one copy of the advice be provided to counsel for the applicants. Senior counsel for the respondents continued with the application on his clients' behalf that I should not sit to hear and determine the proceeding on the ground that a reasonable apprehension of bias might arise by reason of the advice I had given to the NCA. Senior counsel for the applicants opposed the application and submitted that I was under a duty to sit and determine the proceeding. Counsel for the respondents made the application on the basis of the written Advice I had given and elected not to tender or call any other evidence in support of the application. As the actual notice of referral the subject of the Advice was not tendered any references to it in these reasons are based solely upon such descriptions as appear in the written Advice. The submissions of the Respondents Senior counsel for the respondents conceded that there was no direct or indirect factual overlap of any kind between the present matter and the matter the subject of the written advice. He also conceded that there was no overlap of any kind in relation to any of the individuals involved in the conduct of each matter. The application for disqualification was put solely on the basis that as I had given advice on a question of law to the NCA I ought not to hear and determine a proceeding involving the NCA in which that same question of law was to be considered by me. Senior counsel could not identify any case in which such a situation had been considered by the courts but relied upon a passage in Re Polites; Ex parte Hoyts Corporation Pty. Ltd. (1991) 173 CLR 78 at 87-8 per Brennan, Gaudron and McHugh JJ. A prior relationship of legal adviser and client does not generally disqualify the former adviser, on becoming a member of a tribunal (or of a court, for that matter), from sitting in proceedings before the tribunal (or court) to which the former client is a party. Of course, if the correctness of appropriateness of advice given to the client is a live issue for determination by the tribunal (or court), the erstwhile legal adviser should not sit. A fortiori, if the advice has gone beyond an exposition of the law and advises the adoption of a course of conduct to advance the client's interests, the erstwhile legal adviser should not sit in a proceeding in which it is necessary to decide whether the course of conduct taken by the client was legally effective or was wise, reasonable or appropriate. If the erstwhile legal adviser were to sit in a proceeding in which the quality of his or her advice is in issue, there would be reasonable grounds for apprehending that he or she might not bring an impartial and unprejudiced mind to the resolution of the issue. Much depends on the nature of his or her relationship with the client, the ambit of the advice given and the issues falling for determination. It should be pointed out that in Re Polites the Court was concerned with whether a member of a tribunal should sit to hear a matter in which he, prior to his appointment to the tribunal acting as solicitor for one of the parties, had given certain legal and tactical advice at an early stage. The court was not considering the issue arising in the present case which relates to previous advice on a question of law in an unrelated matter. Duty of Disclosure Recently in Aussie Airlines Pty. Ltd. v. Australian Airlines Pty. Ltd. (1996) 135 ALR 753 at 758-9 I discussed the reasons for a duty of disclosure by a judicial officer of facts that might found or warrant a bona fide application for disqualification.

In the past disqualification applications were unusual and exceptional. However they appear to have become more frequent as a result of the recent High Court decisions in Watson and Livesey: See Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J. It would be unfortunate, to say the least, if, as a result of a broad view being taken of the duty of disclosure, such applications were to follow, almost as of course, upon a disclosure being made. If that occurs many applicants may run the risk of being seen to be engaging in an endeavour to have the "case tried by someone thought to be more likely to decide the case in their favour": See Re JRL; at 352 per Mason J. It needs to be emphasised that disclosure is required, inter alia, to maintain public confidence in the integrity of the administration of justice by the tribunal or judicial officer concerned as well as to enable the parties to consider their position in the light of the disclosure. Disclosure should not be seen to be an invitation that a disqualification application ought to be made. The law on apprehended bias by prejudgment The category of apprehended bias raised by the respondents is that of a reasonable apprehension of prejudgment. The underlying principle: is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it [Livesey v. New South Wales Bar Association (1983) 151 CLR 288 at 293-4]. The apprehension referred to is that of the "reasonable observer" who is - presumed to approach the matter on the basis that ordinarily a judge will so act as to ensure both the appearance and the substance of fairness and impartiality. (Livesey at 299). In Re JRL at 352 Mason J (as he then was) said: It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in the case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established": Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. (Emphasis added). More recently it was again reiterated that the basis for disqualification is not merely that past decisions on questions of fact or law, might lead to a reasonable expectation that the tribunal will decide the case adversely to one of the parties: See Re Finance Sector Union; Ex parte Illaton Pty. Ltd. (1992) 107 ALR 581 at 583 per Deane, Toohey and Gaudron JJ. Although the example given by Mason J in Re JRL related to previous decisions of a judicial officer there is no doubt that the same principle applies to previously stated views whether as judicial officer, counsel or otherwise. The principle was held to apply to a statement to a newspaper reporter by a delegate of the Australian Stevedoring Board who was about to hold an inquiry on the same subject as his statement. In relation to that situation, in The Queen v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd. (1953) 88 CLR 100 at 116, Dixon CJ and Williams, Webb and Fullagar JJ said: It is not difficult to understand that the employer whose case he must judge should feel alarmed at a statement appearing in the press from which it might well be inferred that upon some of the contentions he wished to advance his case had been prejudged. But when bias of this kind is in question, as distinguished from a bias through interest, before it amounts to a disqualification it is necessary that there should be strong grounds for supposing that the judicial or quasi-judicial officer has so acted that he cannot be expected fairly to discharge his duties. Bias must be "real". The officer must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons. It has been said that "preconceived opinions - though it is unfortunate that a judge should have any - do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded:, per Charles J., Reg. v. London County Council; Ex parte Empire Theatre. In The Queen v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553-4 in a joint judgment, Barwick CJ and McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ said:

Those requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it. Apprehended bias by prejudgment is not based upon an apprehension, whether reasonable or otherwise, as to how a judge might decide the case or whether it is better for another judge to decide the matter. The test relates solely to the issue of whether there is a reasonable apprehension that a judge might not bring an impartial and unprejudiced mind to the resolution of the matter before him or her. Something more is required than the mere giving of a previous decision or an advice on the same question of law. For so long as judicial officers are appointed from the senior ranks of the legal profession, it will be a common occurrence for them, in their judicial capacity, to have to consider questions of law upon which they may have previously given advice. Where the advice was given in an unrelated matter, without more, it is difficult to see how a different situation arises or a different principle applies where the advice was to a client who happens to be a party in the proceeding in which that issue of law arises for determination. The issue before me is whether it has been "firmly established" that by reason of the Advice given on 27 June 1990 the parties or the public might entertain a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the resolution of the questions involved in the present proceeding. The facts - apprehended bias by prejudgment There are a number of relevant facts. By a joint Memorandum of Advice dated 27 June 1990 I, together with junior counsel, advised the NCA in relation to the validity of certain notices of referral under ss.13 and 14 of the NCA Act. The reference related to possible breaches of specified sections of the relevant Companies Code or Act and s.86 of the Crimes Act by persons stated as having been "identified" to the Minister in writing by the NCA on 19 December 1989 and "associated persons and companies". The advice related to whether "the notice in that form satisfied the requirement under the NCA Act that the notice shall describe the general nature of the circumstances or allegations constituting the relevant criminal activity and the purpose of the investigation." This issue required consideration of the legal consequences flowing from the fact that the notices did not name the persons who were the subject of the investigation or specifically identify the transactions suggesting the commission of the relevant criminal activity. At the date of the Advice the main decision relating to the issue the subject of the Advice was Mannah v. State Drug Crime Commission (1988) 13 NSWLR 43. Since the Advice there has been at least two further decisions by Courts which have been referred to in the written submission which touch upon issues raised in the proceeding in respect of the operation of ss.13(2) and 14(2). They are MFI 1 & Ors. v. National Crime Authority (1991) 33 FCR 449 and Gamin v. New South Wales Crime Commission (1993) 32 NSWLR 423. The NCA Act was amended by Act No. 209 of 1991 which enacted ss.29A and 29B. Those sections might also be relevant. Further, as the present matter arises out of a totally unconnected and very different matrix of facts, the notices of referral are necessarily and significantly different in their content. Their common feature is that they do not name any persons or specifically identify transactions. However this common omission does not necessarily transform the question of law to be determined into the same, or a common, question of law. Accordingly, the question of law in the present case is not the same as the question of law considered in the Advice. As was stated in the Advice the issue related to whether the notices of referral the subject of the advice complied with s.13(2) and 14(2) of the NCA Act. The issue in the present case is whether the quite different notices served on the applicants complied with ss.13(2) and 14(2). The Advice given proffers legal views on the operation of the NCA Act and ss.13(2) and 14(2) on the state of law and the Act as at 1990. The question of law in the present case concerns the operation of the NCA Act and ss.13(2) and 14(2) on the state of the law and the Act as at 1995 or 1996. It is in that context that it is said that there is a "common" question of law. Conclusion In my view the application for disqualification should be refused at two levels. First, as the legal issue the subject of the Advice is not the same issue arising for determination in this proceeding the issue of prejudgment as such does not arise. No advice was given on the validity of the notices the subject of the present proceeding or on notices in the same or substantially the same form. Advice was given in respect of a different form of notice but which has the common omission I referred to above. Changes to the NCA Act, recent decisions, the evidence to be adduced and the fact of opposing and detailed submissions by the parties, both in writing and orally, provide a quite different context and setting for the consideration of the questions arising for determination in the present proceeding. Second, even if a question of law arising for determination is the same question as that which is the subject of the Advice, in my view a reasonable observer would apprehend that the legal question considered in 1990 would be fairly and impartially considered by me afresh in the light of the submissions put and the evidence adduced by the parties in this proceeding. Put more accurately, in my view it has not been established, let alone firmly established, that the parties or the public might entertain a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the resolution of each of the issues to be resolved in the present case. The expression of a view of the law by counsel, without more, whether to a party later coming before that erstwhile counsel as a judicial officer or otherwise, does not afford a basis for concluding that he or she might not bring an impartial and unprejudiced mind to the resolution of that same question of law arising in a different factual context. The passage relied upon by senior counsel for the respondents from Re Polites does not assist him. Clearly, a judge ought not to sit if the correctness or appropriateness of advice given to the client is a "live issue" in the proceeding to be determined by the former legal adviser. The same situation can apply if the adviser has a personal "interest" in the correctness of the advice. Those situations are a far cry from the present case. The advice given by me is not an issue, let alone a live issue, in the present proceeding. Indeed it is totally irrelevant to the proceeding. It was not suggested that I have any personal or other interest in maintaining the correctness or otherwise of the Advice given in 1990. Accordingly, for those reasons, the application that I disqualify myself from hearing the proceeding is refused with costs.

I certify that this and the preceding 15 pages are a true copy of the Reasons for Ruling of the Honourable Justice Merkel Associate: Dated: Heard: 27 & 28 May 1996 Place: Melbourne Judgment: 31 May 1996 Appearances: Mr. P. Vickery Q.C. with Mr. D. Neal instructed by Simon Parsons & Co. appeared for the applicants. Mr. M. Gray Q.C. with Mr. B. Walters instructed by Australian Government Solicitor appeared for the respondents.