Abraham as Tutor for Abraham v St Marks Orthodox Coptic College

CATCHWORDS : COURTS AND JUDGES - bias - disqualification - apprehended bias - positive finding of credit in liability hearing - did not disqualify judge on assessment

Abraham bht Abraham v St Mark's Orthodox Coptic College and Ors [2006] NSWSC 1107 ANI v Spedley (1992) 26 NSWLR 411 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 CASES CITED : R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 Raybos Australia Pty Ltd v Tectran Corporation [No 4] (1986) 6 NSWLR 674 Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 Re Polites; Ex Parte Hoyts Corporation Pty Ltd [1991] HCA 25; (1991) 173 CLR 78 S & M Motor Repairs v Caltex Oil (1988) 12 NSWLR 358 Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568

Nareem Abraham as Tutor for Christopher Abraham (Plaintiff) PARTIES : St Marks Orthodox Coptic College (First Defendant) Coptic Orthodox Church (NSW) Property Trust (Second Defendant)

COUNSEL : J P Gormly SC (Plaintiff) S G Campbell SC / P R Stockley (Defendants)

SOLICITORS : Walker Kissane & Plummer Solicitors (Plaintiff) Curwoods Lawyers (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20186/2002 Nermeen Abraham as Tutor for Christopher Abraham v St Marks Orthodox Coptic College & Anor (No 4)

JUDGMENT 1 HIS HONOUR: The defendants apply for me to disqualify myself from the hearing of this matter, in so far as it involves the assessment of damage, on the basis of apprehended bias. That apprehension is said to arise from a finding of credit in the liability proceedings. Background 2 On 24 October 2006, the Court, as presently constituted, determined liability in this matter: Abraham bht Abraham v St Mark's Orthodox Coptic College and Ors [2006] NSWSC 1107 ("the liability judgment") and, as previously agreed between the parties, stood over the assessment of damage. 3 The proceedings were split between liability and damage because of the circumstances of the plaintiff, Christopher Abraham ("Christopher"). The accident that gave rise to damage occurred when Christopher fell from a balustrade at St Mark's Orthodox Coptic College ("the College"). He was 9 years of age at the time. 4 It is unusual to separate liability and damage, because it is usually inefficient and there is a possibility, albeit remote, of findings on subsidiary fact that are inconsistent as between the two sets of proceedings. The Court sanctioned the process in this matter because it allowed the determination of the circumstances of the accident while they were relatively fresh in the minds of the relevant witnesses and delayed the assessment of damages to a time when the injuries and their effect were better known. 5 Christopher turns 18 years of age in 2009. Because his injuries from the accident apparently included significant brain injury, he has not fully stabilised. He is currently completing a technical course, which will be completed on 17 November 2008. 6 On the application of the College, I vacated the damages hearing which was originally listed for hearing commencing 30 June 2008. The Court vacated the dates at a hearing on 6 June 2008 and at that hearing also dealt with the College's application that I recuse myself from the further hearing of the matter (or any part of the matter that involves the credit of Christopher's father, Mr Abraham) on the basis of earlier findings. Application for Apprehended Bias 7 In the liability judgment, there was an issue of fact. The former Deputy Principal of the College gave evidence that the pedestrian gate to the College was (or should have been) closed. The basis of that evidence was the system that was supposed to be in place, namely, that the Deputy Principal was to open the gate. 8 Mr Abraham gave evidence that when he dropped Christopher, the gate was open and Christopher walked through it into the College. Other witnesses gave evidence that the pedestrian gates were usually or often open well prior to 8.20am when the Deputy Principal said he would open them. 9 Further, all witnesses, except the Deputy Principal, attested to students playing ball games on the grassed area of the College. I did not make any finding of "credit" against the Deputy Principal. In the view that I took in the liability judgment, I expressly did not suggest that the Deputy Principal was seeking to mislead or give inaccurate evidence. Rather, it seemed to me that his view "was coloured by what he anticipated was happening and that which should have happened in light of the instructions that had been given to students or teachers, or to both." (See [47] of the liability judgment.) 10 As earlier stated in this judgment, the "major" factual differences were whether the pedestrian gates were open and, to a lesser extent, whether the College had knowledge of the attendance of children between 8.00am and 8.30am and their practice of playing away from a designated seating area. 11 Necessarily, and quite properly, counsel for the College put the submission that, on the issue of whether the gates were open, I should not believe Mr Abraham. The basis of that submission was essentially the interest of Mr Abraham in the outcome of the proceedings. On the issue of the credit of Mr Abraham, the Court noted: "The most significant witness in the proceedings, and the cross-defendant, is the father, Mr Boshra Abraham. His manner and demeanour displayed a remarkable integrity. He gave the impression that great effort was taken to ensure as accurate an answer as possible. It also became clear that he was a person with an extraordinary regard for authority and the importance of complying strictly with the law and directions. He also expected others to behave in like manner. I accept his evidence without qualification." (See [47] of the liability judgment.) 12 The College relies on the above passage to suggest that, on any issue involving the credit of Mr Abraham, a fair-minded onlooker, properly informed, would reasonably apprehend that I could not (or would not) bring an unbiased approach to the question. The Principles 13 A judicial officer (or member of a tribunal required to act impartially) must, as part of the oath of office, bring an impartial mind to the issues to be decided. The purpose of the rules on bias and apprehended bias is to ensure impartiality and independent assessment, both in fact and in appearance: ANI v Spedley (1992) 26 NSWLR 411 at 418 and following, per Kirby P. 14 The general principle is that a judge should not hear a case if, in all the circumstances, the parties, or the public if properly informed of the procedure and circumstances, might entertain a reasonable apprehension that the judge might not bring an impartial or unprejudiced mind to the resolution of the issues to be heard and determined: Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-294; R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 258-263. 15 The principle is easily and often reiterated and relatively easily understood. Its application is at times difficult. 16 In ANI v Spedley, Kirby P expressed the difficulty in applying the principles to particular cases and said: "It is no disrespect to the judges who have ventured their opinions upon the resolution of problems such as this to identify a certain ambivalence in the expression of the tests which are to be applied. One decision upholds the asserted apprehension of bias. The next dismisses it. One decision asserts the duty of the judicial officer to sit and not disqualify himself or herself. The next reverses a decision of a judge to sit on the ground of apprehended bias. As in this case, different judges considering the same facts reach different conclusions. To say this merely acknowledges the unique features of each case; the differing composition of the courts and tribunals concerned; the inescapably different predilection and sensitivities of judges seeking to interpret the response of the hypothetical reasonable or fair-minded observer; and the ebb and flow of judicial opinion over time.

There is no final or ultimate formula which can be easily applied to dispose of cases such as the present. In each case, the judicial officers concerned, whether at first instance or on appeal, must apply the well-worn words. But in the end, the response which each gives may be more instinctive and less deductive than the reasoning of the courts has tended to suggest.

That words can be found in the authorities, even in recent times, to encourage a judge said by reason of pre-judgment to be disqualified for apprehended bias, to stay with the case cannot be doubted. The following is a representative sample of the injunctions that are typically called to the judge's attention:

(a) Judges by their training and experience are able to bring a detached mind to the task in hand: see Re The Queen and His Honour Judge Leckie; Ex parte Felman (1977) 52 ALJR 155 at 160; 18 ALR 93 at 102-103;

(b) Judges should not too readily accede to applications for disqualification, otherwise litigants may succeed in effectively influencing the choice of the judge in their own cause: see Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272 at 276; Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45 at 49;

(c) Judges should resist being driven from their courts by the conduct or assertion of parties, including assertions of actual or imputed bias: see Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 4] (1986) 6 NSWLR 674 at 689;

(d) Judges in the course of litigation, in exchanges with parties and their representatives or in interlocutory decisions may express their preliminary views with vigour but this should not necessitate their disqualification: see Galea v Galea (1990) 19 NSWLR 263 at 278f; Fitzgerald (at 49); Re Keely; Ex parte Ansett Transport Industries (Operations) Pty Ltd (1990) 64 ALJR 495; 94 ALR 1; and

(e) Judges should perform the duties of their office which, of their nature, will often be painful and unrewarding. They should do so with courage and decisiveness avoiding the relinquishment of their duties which will then necessarily fall to another judicial officer for whom the task may be no more congenial. Such relinquishment will also involve costs delay and inconvenience to parties who are otherwise entitled to have the decision of the judicial officer appointed to their case: see Re JRL; Ex parte CJL (at 352); Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78" ( Spedley at 417-418 per Kirby P). 17 The importance of adherence to the principle of impartiality is fundamental to the administration of justice. So too is the appearance of impartiality; not only to the parties, but to the public. If the public were to have the impression that partiality infected the decisions of courts, then the courts could not function in the manner that they do. In a democracy such as ours, the exercise of power (including judicial power) depends on the legitimacy of the institution exercising it. 18 The importance of impartiality, and its appearance, also requires that, in the absence of apprehended bias, judges should continue to hear and determine proceedings. Thus, judges must not accede to such an application unless the tests for bias (or apprehended bias) are satisfied. Otherwise, such applications may be seen by the public to be "judge shopping" and also undermine the legitimacy of the process: Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352; Re Polites; Ex Parte Hoyts Corporation Pty Ltd [1991] HCA 25; (1991) 173 CLR 78; Raybos Australia Pty Ltd v Tectran Corporation [No 4] (1986) 6 NSWLR 674 at 689. 19 In Hoyts, supra, the High Court of Australia issued writs to require a particular member of an industrial tribunal to continue to hear and determine proceedings in circumstances where the member had disqualified himself. The member disqualified himself because he had, prior to his appointment, advised a party on the employment structure implemented by it, which structure was the subject of the proceedings before him. 20 The reaction, often referred to as "the easy option", that, if there be an application to disqualify, it is better not to sit, is not an available or appropriate reasoning process. Whatever be the inclination of the judicial officer, it is necessary to determine whether there is a reasonable apprehension that an impartial mind cannot be brought to the determination of the issues before the court. 21 In order for there to be a reasonable apprehension of the relevant kind, it is necessary that a fair-minded observer, properly informed, might reasonably apprehend that I might not bring an impartial mind to the resolution of the issues in the proceedings: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at 344. In that case, the High Court said: "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." (see Ebner at 345 [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ.) 22 I agree, with respect, with the view expressed by Kirby J that one ought not attribute to the lay observer too great a sophistication in her/his assumed knowledge. To do so is to impute the knowledge of a reasonable judge (or legal practitioner): see Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 509 [54], citing with approval S & M Motor Repairs v Caltex Oil (1988) 12 NSWLR 358 at 376; see also Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568. Conclusion and Application of Principles 23 This is not a situation where a party suggests that, because of some involvement by a judge with another party or witness, or some corporation or movement, there exists a fear or apprehension of partiality. Rather, it is a circumstance where, as a result of a judgment in these proceedings, it is alleged that there is an apprehension of pre-judgment of an issue that may arise. Strictly, this is more like actual than apprehended bias. 24 In other words, there is no suggestion, as I understand it, of any apprehension of bias (partiality) that gave rise to the statement in the liability judgment. There is an apprehension that, to the extent that the credit of Mr Abraham is an issue in the assessment of damage, I would, to be consistent with my earlier statement (or to find consistently with my earlier view), consider Mr Abraham to be truthful. 25 For obvious reasons, counsel for the College draws an analogy with the reasoning and circumstances in ANI v Spedley, supra. To answer that analogy, counsel for the plaintiff refers to the limitation in ANI v Spedley that an earlier judgment must concern "the same issues and the credit of the same witnesses". The principle is not so limited. 26 The judgment in ANI v Spedley involved a series of cases in which identical issues arose and in which, in the first such case, the judgment depended on adverse findings on the credit of witnesses involved in the corporation. The finding was central to the judgment and all other proceedings depended on the same evidence from the same witnesses called by the corporation. 27 In Livesey, supra, adverse findings of credit were again made by judges sitting in a later case. The person against whom such findings were made was a central witness in the later case and it was necessary for the judges to believe that witness in order for the party to succeed. Both Livesey and ANI v Spedley are cases involving adverse findings in previous cases. Even so, Mahoney JA in ANI v Spedley applied the pre-judgment principle to findings of "fact or credibility": ANI v Spedley, supra, at 442.D. 28 The issue upon which credit was relevant in the liability judgment was whether the pedestrian gate was open. The only direct evidence was from Mr Abraham. Some other independent evidence supported the proposition. As stated, the Court was required to deal with a submission that, because of his (direct and indirect) interest in the proceedings, Mr Abraham should not be believed. The Court rejected that submission. I rejected it because there was no reason to accept it and Mr Abraham's attitude to instructions as disclosed in the evidence (and the manner and precision of his answers) displayed an attitude of obedience to the law and to authority. 29 The proceedings are half finished. While the liability judgment is, except as to the cross-claim, technically interlocutory, the findings on liability are not preliminary: cf ANI v Spedley, per Kirby P at 418.B. Nevertheless, slightly different emphasis needs to be applied when findings are made in the course of one proceeding for the purpose of allowing the remainder of the proceeding to continue; assuming, in that latter statement, that the finding is based on the evidence in the proceedings. 30 More particularly, there is a significant difference between adverse and positive findings of credit. Evidence may be preferred for a variety of reasons. Witnesses may be unreliable in some areas, but truthful (or at least not "untruthful"). Adverse findings on credit generally go well beyond "unreliability". Otherwise all witnesses start from the proposition that they are being truthful, i.e. telling the truth as they understand it. A positive finding of credit merely confirms that starting point, which, in different circumstances, may be destroyed. 31 The evidence, if any, that is likely to be adduced from Mr Abraham on damages, is his perception of the capacity of Christopher to perform tasks and make judgments. It is alleged that Christopher has insufficient insight into his disabilities. This is not unusual in some types of brain injury. 32 The central issue in the damages claim is the medical assessment, including occupational therapist assessment. The assessment by one or more parents, or other layperson, while informative, is necessarily less objective and is not a professional opinion. Further, there is a vast difference between evidence of fact (i.e. whether a gate is open) and evidence of perception. The latter lay opinion depends far less on truthfulness than on objectivity, perspicacity and expectation. 33 To repeat part of the citation from ANI v Spedley (per Kirby P at 417.F): "There is no final or ultimate formula which can be easily applied to dispose of cases such as the present. In each case, the judicial officers concerned, whether at first instance or on appeal, must apply the well-worn words. But in the end, the response which each gives may be more instinctive and less deductive than the reasoning of the courts has tended to suggest ." [Emphasis added.] 34 There is no "necessity" or "extraordinary or special circumstances" that require that I sit. Nevertheless, both instinctively and by application of the principles, the evidence of Mr Abraham, if it is adduced in the future:

(a) is unlikely to be a central or determining issue; and

(b) any challenge to it will concern the objectivity and reliability of his opinion and perception, not the truth or falsity of the existence of provable facts. 35 Further, the positive finding on credit (made impartially on evidence then before the Court), part way through the proceeding, would not seem, to a fair-minded observer, to give rise to the possibility that further evidence in the rest of the proceedings, by that same witness, would not also be judged impartially. 36 For the foregoing reasons, the application for disqualification is rejected.

13/10/2008 - [18] - "Thus, judgments must not . . ." altered to "Thus, judges must not . . ."; [23] - "fear or apprehension of impartiality" altered to "fear or apprehension of partiality". - Paragraph(s) [18], [23]

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