- Antoun v R

Supreme Court of NSW|2024-10-10|Before: Black J

Solicitors: Vobis Law (Plaintiffs) Teneo Commercial Lawyers (First and Second Defendants) SM Law (Third Defendant) File Number(s): 2023/353008

Judgment - ex tempore (Revised 11 October 2024) - Ruling on application for disqualification

An application is made by Mr Cheshire, who appears for Mr Birch, that I disqualify myself for apprehended bias from continuing with the proceedings. This issue arises on the sixth day of the hearing, in circumstances that there are likely two hearing days remaining. The application turns, in part, on matters which occurred in relation to another Defendant, Mr Seymour, and in part on an application on a matter which arose in respect of Mr Birch. I should note, for completeness, that Mr Walker who appears for Mr Seymour did not join in the application.

The applicable principles

I first turn to the applicable principles, which I should address by reference to some cases to which Mr Cheshire referred briefly, or did not refer, and others which he addressed. The question of apprehended bias turns on whether a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to the apprehension of bias, might reasonably apprehend that a judge might not bring an impartial and unprejudiced mind to the resolution of the question, or in this case many questions, that the judge is required to decide: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31]. The principle gives effect to the requirement that justice should both be done and be seen to be done: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [6]; 205 CLR 337, where (I should add to my oral judgment) the plurality observed that: "Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge … the governing principle is that, subject to qualifications relating to waiver … or necessity … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide."
Mr Cheshire also refers to the decision in Galea v Galea (1990) 19 NSWLR 263 ("Galea"), where Kirby ACJ at 280 referred to the distinction between the respective roles of the judge and counsel and dealt, in particular, with the position in respect of excessive intervention by a judge in the hearing of cases. Mr Cheshire also referred to an observation of Denning LJ in Jones v National Coal Board [1957] 2 QB 55 at 64, cited by Kirby ACJ in that case (at 280), as to the position where a judge "drops the mantle of a judge and assumes the role of an advocate". I will refer below to the particular matter(s) which are said to require me to disqualify myself from hearing the balance of the proceedings. I should pause to note, however, that more recent Australian cases have recognised that the time in which a judge sits silently, during the conduct of lengthy proceedings, so that the parties only first have any access to his or her preliminary thinking when a judgment is delivered, is long gone.
Mr Cheshire also refers to the observation in Galea (at 281) regarding the test whether there is "excessive judicial questioning" or "pejorative comments" and whether they have created a "real danger that the trial was unfair". Mr Cheshire here indicates that no concern is raised here as to excessive judicial questioning where, I interpolate, I asked only one relevant question of Mr Birch at the end of his cross-examination. Mr Cheshire identifies, instead a concern that a "pejorative comment", or possibly a "pejorative question", has created a real danger that the trial was unfair, or at least a potential appearance that the trial was unfair. I will return to that matter below, in respect of the questions that are in issue, and I will also make one clarification, which it seems to me is plainly called for, in respect of a question that I asked Mr Seymour rather than Mr Birch. Mr Cheshire also refers to the observation in that case that the question to be addressed is whether the "judge has closed his or her mind to further persuasion" or moved "into the perils of self-persuasion". I will address that question below, in respect of the particular matters which here arise.
Mr Cheshire also refers to the observations of the Court of Appeal in Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 8 where Ward JA (as the President then was) referred to Galea in respect of a complaint as to the judge's questioning of a party against which judgment was later give. Her Honour there addressed subsequent authorities in respect of that question.
Mr Cheshire also refers to Sweeney v He [2023] NSWCA 68, and there refers to observations of Ward P (at [153]), again considering Galea, and a subsequent decision of the Full Court of the Supreme Court of South Australia which had referred to it, which identified three basic grounds on which "excessive judicial intervention" would give rise to a miscarriage of a trial, including "where the questioning gives an appearance of bias" and "where the questioning is such an egregious departure from the role of a judge presiding over an adversarial trial that it unduly compromises the judge's advantage in objectively evaluating the evidence from a detached distance." The President also there referred to the ultimate question, namely "whether the intervention was unjustifiable and resulted in a miscarriage of justice."
I also bear in mind the observations of Brereton J in British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109 at [62]-[63] that, in matters of this kind: "The decision whether a judicial officer might not bring an impartial mind to the resolution of an issue does not involve prediction: The question is one of possibility (albeit real and not remote), not probability… For a judge to be disqualified, there must be a 'substantial basis' for the conclusion of apprehended bias; The apprehension must be 'firmly established'… The hypothetical fair-minded observer is a lay person informed as to the relevant facts of the case, sufficiently knowledgeable to bring a rational and reasonable assessment to bear on the question of whether the judge might be biased, and having a basic knowledge… that a judge is a professional who by training, tradition and oath is required to discard irrelevant, immaterial and prejudiced material and can be ordinarily assumed to comply with the judicial oath".
In Chamoun v District Court of New South Wales [2018] NSWCA 187 at [36]-[38], Gleeson JA (with whom Hulme J and Button J agreed) observed, by reference to the High Court authority, at [36]-[38]: "The test of apprehension a bias is objective. It does not require an assessment of the state of mind of the judge in question, as is necessary on an inquiry about actual bias… The application of the apprehension of bias principle requires two steps. The first is the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. The second is there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy [2000] 205 CLR 337; [2000] HCA 63 at [8]; Michael Wilson & Partners v Nicolls at [63]."
The High Court also observed, in Ebner, that only once those two steps have been completed can the reasonableness of the asserted apprehension of bias be assessed: Ebner at [8]. I have here gratefully drawn on the summary of the applicable principles by Rees J in Aquamore Fund 2 Pty Ltd v Church Point Apartments Pty Ltd (receivers and managers appointed) [2023] NSWSC 511 ("Aquamore") at [59]-[60].

Preliminary views

I should add to my oral ex tempore judgment that Mr Cheshire did not address the case law that establishes that the principle of apprehended bias is not engaged merely because a judge expresses preliminary views in the course of a hearing, unless the nature of the preliminary views, the manner in which they are expressed and the circumstances as a whole show that the judge is unwilling to depart from them irrespective of the evidence and the submissions of the parties: Antoun v R (2006) 224 ALR 51; [2006] HCA 2 at [27], [29], [33], [81], [87]; Russell v Eaton [2020] VSCA 249 at [59]. It is not apparent to me that any sensible distinction can be drawn between the expression of a preliminary view and a question allowing a witness an opportunity to address a preliminary view. I return to that matter below.
It is plain that, in the course of a hearing that lasts several days, there is a real possibility that a judge will form preliminary views. Those views will arise, in the continuing process of the assessment of evidence, the review of documents, and the exchange with Counsel which occurs by way of submissions. Those views, in the proper performance of a judge's functions, will be preliminary views. They will be open to change, as further evidence emerges, and they will be open to change in submissions, which cast additional light upon matters, or displace a preliminary view, or indicate that it is well founded. Preliminary views are no more, and likely less, dangerous to a party where they are disclosed, rather than undisclosed. A preliminary view which is undisclosed has the difficulty that a party will never have the opportunity to address it, but that does not mean it will not exist. A preliminary view which is disclosed has the advantage, for a party, that he or she is afforded procedural fairness by the opportunity to address it. In those circumstances, there is a potential difficulty with the proposition that the exposure of preliminary views gives rise to apprehended bias, because it is plainly in tension with the proposition that parties should be afforded procedural fairness, by having exposed to them matters which may be adverse to them, so that they have an opportunity to respond to those matters, with the result that justice is more rather than less likely to be done.

Another relevant matter

I should also bear in mind, in applying these principles, matters to which Rees J referred, where an application was made in the course of a trial to disqualify her from sitting in that trial, in Aquamore at [56]ff. Her Honour observed that, plainly enough, it would be easy, from a personal perspective, for a trial judge against whom an allegation of apprehended bias is raised to recuse his or herself without further ado, but that that would involve a failure to exercise the judicial function. Her Honour there referred to Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 294; [1983] HCA 17; and to Ebner at [19]-[21], where the plurality in the High Court observed that judges do not choose their cases, and litigants do not choose their judges, and that a judge has the obligation to hear the matters which are allocated to him or her, unless a reasonable apprehension of prejudgment or bias arises so that the judge should refrain from sitting.
I recognise that a judge may disqualify himself or herself, for prudence, where a suggestion of apprehended bias is made to avoid the risk that a judgment may ultimately be overturned on appeal. Here, however, that course has real disadvantages, where the parties are now six days into a hearing, and the costs of that hearing would be wasted, if I were to recuse myself. I should also note, shortly before Mr Birch made this application, it had emerged that the Plaintiffs' Counsel and solicitors were completing this hearing as a matter of their obligations to the Court, implicitly because the Plaintiffs could no longer afford to pay them. A potential failure of this trial has the obvious consequence that a new trial may never take place, if the Plaintiffs are then unable to fund their participation in it. I recognise that that would not be a basis on which I could or should continue to sit if apprehended bias, within the scope of the relevant case law, had arisen.

The matters here said to give rise to apprehended bias

With that background, I turn to the matters which are here said to give rise to apprehended bias, in respect of the case against Mr Birch, although not, as I noted above, in respect of the case against Mr Seymour, at least by those who represent Mr Seymour in the proceedings.
Mr Cheshire draws attention, first, but by way of context only, to a matter which arose at T282 of the transcript, in respect of the cross-examination of Mr Seymour. Mr DeBuse put a question to Mr Seymour that: "You are saying that you're with them [creditors] and you're not 1derful's man to creditors, but to Mr Bunbury you're saying "I'm on your team?" Emphasis on you."
At that point, I intervened to give a warning to Mr Seymour under s 132 of the Evidence Act 1995 (NSW) ("Evidence Act"). It seemed to me at that point plain that Mr DeBuse was putting a proposition to Mr Seymour that would lead in subsequent questions, or in closing submissions, to a contention that Mr Seymour had misled 1derful, or creditors, or both, by putting inconsistent positions to 1derful on the one hand and creditors on the other. It seems to me that that question is capable of no other possible construction.
Mr Cheshire in turn points to my observation (at T283) in explaining why I would give that warning to Mr Seymour that: "It seems to me that so far as the question which is directed and subsequent questions raised the possibility that Mr Seymour was not acting honestly or was not acting honestly and fairly, which are essential requirements for the provider of financial services or the provider of credit services, or is not a fit and proper person to provide financial services or credit services, then his answers to those questions may expose him to a penalty, that penalty being the possibility of a permanent or lengthy banning order".
Mr Cheshire submits that is not a matter raised by the Plaintiffs in the proceedings, and that is plainly the case, so far as the ability to make a banning order is conferred on the Australian Securities and Investments Commission ("ASIC") and the making of a banning order would be of no particular advantage to the Plaintiffs. The difficulty, however, is that Mr Seymour was plainly exposed to that risk. To put that differently, it does not matter whether the prejudice which was there identified was exposure to an unpleaded criminal offence or whether it was the exposure to a banning order. The exposure plainly existed as a result of the question and not as a result of any conduct on my part, and in those circumstances there was a need to give a warning under s 132 of the Evidence Act.
Mr Cheshire did not rely on my giving that warning, as the Evidence Act required me to do, as a matter that itself gave rise to an apprehension of bias, but instead as context for the matters to which he later refers in respect of apprehension of bias. I pause to note, however, that it does not seem to me that the fair-minded lay observer would reasonably apprehend that my compliance with the obligation that is imposed on me by s 132 of the Evidence Act, where a question raises a risk of self-incrimination or incrimination to a penalty, would contribute to a finding of apprehended bias on my part. I nonetheless treat the fact that I had given such a warning to Mr Seymour as context for the matters (at T333) on which Mr Cheshire primarily relies to find that three questions that I had raised with Mr Seymour, after the completion of cross-examination and prior to re-examination, gave rise to apprehended bias against Mr Birch.
Mr Cheshire draws attention to the fact that I had there drawn to Mr Seymour's attention to the fact that I "may find" that he sought to obtain a retainer with a second-ranking creditor, FIFO Capital, for a nominal payment, in order to obtain a "seat at the table" so as to advance his personal interests and possibly Mr Birch's personal interests, and I invited his comment in respect of that proposition. It seems to me that a fair-minded lay observer would recognise that it identified a possible finding, plainly expressed as preliminary only, and open to change by way of further evidence or further submissions. The language "may find" is tentative. The possibility, as a factual possibility, is one that plainly arose, but might be rebutted by other evidence, or not arise after submissions were made. Again, returning to a matter that I noted above, where a judge hearing this evidence might well form such a preliminary view, again subject to later evidence and submissions, Mr Seymour would not be better off, and would likely be worse off, if the possibility that preliminary view might be formed were not exposed to him, and he were not given the opportunity to answer it.
Second, Mr Cheshire drew attention to my raising with Mr Seymour that I "may find" that he had not acted honestly and in accordance with his moral obligations, so as to be a person who is a fit and proper person to provide services in the financial industry or the credit industry. Again, that observation was plainly made in tentative terms, as the language "may find" indicated. It seems to me that the fair-minded lay observer would again recognise that as the identification of a possibility, rather than an expression of any concluded view as to which I could not be dissuaded by the evidence as a whole or by the making of further submissions.
So far as I referred to acting honestly and in accordance with moral obligations, those are matters that were potentially raised by the case brought by the Plaintiffs, which alleges a breach of the prohibition on statutory unconscionability under ss 12CB-12CC of the Australian Securities and Investments Commission Act 2001 (Cth) ("ASIC Act"), and the corresponding provisions in the Australian Consumer Law were implicit in that allegation, and had been referred to previously in the course of exchanges in this hearing. The potential, and I emphasise potential, consequence that a finding to that effect would have an adverse effect upon Mr Seymour's capacity to provide services in the financial industry or the credit industry was no more than a recognition that, if such a finding was made, it would overlap with the statutory test for a banning order, which would be a matter for ASIC.
It seems to me that the fair-minded lay observer would again recognise that that possibility did not rise higher than the possibility that such an adverse finding would be made, and that allowing Mr Seymour the opportunity to respond to that matter was directed to affording him procedural fairness, and was not an expression of any adverse finding against him, as distinct from a recognition of a possibility that such a finding might ultimately be made. It also seems to me that the lay observer would also recognise that Mr Seymour would not be better off, but worse off, if that possibility were not exposed to him, in a preliminary way, so that he had the opportunity to address it.
Third, Mr Cheshire draws attention to a third question that I had asked of Mr Seymour, which I should quote in full, because I have recognised above that this is a matter that plainly requires clarification. I had asked that question as follows: "Mr Seymour, is there any reason why I should not refer this matter to the Australian Securities and Investments Commission for them to consider whether to make a banning order against you?"
Mr Walker had then rightly objected to that question, consistent with a previous discussion that recognised that Mr Seymour should have the benefit of a certificate under s 128 of the Evidence Act to these matters, and I made an order that had that consequence.
I should recognise that, with the benefit of hindsight, this question was badly phrased. Although Mr Seymour does not put any submission that it gives rise to apprehended bias on my part, I should make clear for the benefit of Mr Seymour, and also Mr Birch, that that question should have been longer, and more qualified, and, in particular, it should not have been framed in a way that could be understood to suggest one result was more likely than another. A better question would plainly have expressly recognised, as it seems to me a fair-minded lay observer would recognise is implicit in this question, that it was directed to a contingency. Both of the questions that preceded it had been expressed using the language "may find". It seems to me that a fair-minded lay observer would recognise that this further question could not rise beyond the contingent premises from which it followed: namely, if it were found that Mr Seymour had taken the FIFO Capital retainer so as to advance his personal interests and possibly Mr Birch's personal interests; and if it were found that Mr Birch had not acted honestly and in accordance with his moral obligations and, by extension, had contravened s 12CB of the ASIC Act or the corresponding provision in the Australian Consumer Law; then findings would potentially have been made which were coincident with the statutory requirements for a banning order.
In those circumstances, but only in those circumstances, a question of referral to ASIC might arise. I am conscious that, if there is any risk that Mr Seymour may not have understood that the question was asked on those contingent premises, I should make clear that it was in fact subject to those contingencies. I should also make clear that I have not, in fact, found, and plainly could not find in a case of this complexity at this stage, where I am faced with some nine or so lever arch folders of documents, and many pages of cross examination, that the position is such that the matters arising in this hearing in respect of Mr Seymour should in fact be referred to ASIC.
In some circumstances, a clarification of matters may be relevant to apprehended bias but, irrespective of that matter, I should make that clarification so as to ensure that Mr Seymour is not troubled by any misunderstanding that this was in fact an expression of a finding, rather than a recognition of a contingency, which was drawn to his attention to allow him the opportunity to address it.

The matter I raised with Mr Birch

The last matter raised by Mr Cheshire relates to a question asked of Mr Birch, again after a warning under s 132 of the Evidence Act and a consequential invocation of the statutory privilege under s 128 of the Evidence Act, which I had foreshadowed to Mr Cheshire would be in substantially the same terms as a question asked of Mr Seymour, which I had in turn identified. I asked that question after Mr Birch had been cross-examined at length in a manner that had attacked the propriety of his conduct.
I should add to my oral judgment that, before I asked that question, I had advised Mr Cheshire of matters that I considered I should raise with Mr Birch as follows (at T407): "There is a possibility that I will reach findings which are adverse to Mr Birch in one of two respects. First, that I will find that there has been non-disclosure of aspects of the relevant transactions, which has the consequence that the transactions became unconscionable, and that of course is a contravention of a civil penalty provision. Second, that I might find that aspects of Mr Birch's evidence are false, and the giving of false evidence would be inconsistent with the standard of honesty required by persons who are representatives of Australian Financial Services licences, particularly if it occurs in an attempt to conceal wrongdoing. In each of those circumstances, there is a possibility that I would refer Mr Birch to the Australian Securities and Investments Commission for it to consider whether to make a banning order so as to protect the public in respect of the provision of any future financial services by Mr Birch, whether permanently or for a period. In those circumstances, it seems to me as a matter of procedural fairness I should first give Mr Birch a warning and, second, give him the opportunity to make any comment as he wishes to make as to whether he considers there is any reason that he should not be referred to the Australian Securities and Investments Commission in that manner. You would of course have the opportunity to make submissions in that respect in closing submissions, but it is important that Mr Birch personally have an opportunity to say anything he wishes to say in that respect." [emphasis added]
It seems to me that the fair-minded lay observer would plainly recognise that those matters were possible findings, as the language I used made clear, and not views that I had then formed.
I then invited, and Mr Cheshire then made, submissions as to whether it should be asked. My ex tempore judgment as to that matter again made the preliminary and contingent character of the matter that I proposed to raise with Mr Birch clear, where I referred, inter alia, to the "risk" that the Court would reach a conclusion adverse to Mr Birch as to the matter; recognised that the extent of his involvement and the extent to which he had read communications was disputed and expressed no view as to how that dispute would be resolved in a final judgment; again noted a "possibility" (which I there observed existed in any proceeding) that Mr Birch could be disbelieved in aspects of his evidence, but also recognised the potential risk of such an adverse finding was greater for a participant in the financial services industry; and recognised the importance of allowing procedural fairness to Mr Birch, which would only be of relevance before rather than after a finding adverse to him was made. The fair-minded lay observer would, it seems to me, recognise that allowing Mr Birch procedural fairness as to whether a finding might be made that was adverse to him did not suggest that I had already made it and could not be dissuaded from it, but the reverse.
The question that I asked of Mr Birch, after affording him a certificate under s 128 of the Evidence Act, was as follows (T410): "I draw to your attention that I may find that you have not within the language of the case law acted honestly and in accordance with your moral obligations so as to be a person who is a fit and proper person to provide services in the financial industry. Is there any comment you wish to make in that respect?" [emphasis added]
That was, in substance, the same question that I had asked of Mr Seymour at T333.18-T333.23. That question was again, in terms, contingent, so far as it is identified that I "may" reach a finding that would be adverse to Mr Birch. Again, the first part of that question was directed to a case made by the Plaintiffs in respect of statutory unconscionability under s 12CB of the ASIC Act. The second part of it recognised a potential consequence of the first, which is of particular importance for Mr Birch so far as his evidence is that he is in fact operating within the financial services industry, within a company which holds a corporate authority issued by an Australian financial services licensee. It seems to me that the fair-minded lay observer, properly informed as to the relevant matters, would recognise the degree of contingency in that question; and would recognise that it was no more than the recognition of a finding that I might reach, which would be adverse to Mr Birch, which allowed him procedural fairness in respect of that finding. Again, as I noted above, it seems to me that the reasonable, fair-minded lay observer would also recognise that exposing that matter to Mr Birch was to his advantage, so far as it gave him the opportunity to answer it, as distinct from that matter remaining an undisclosed preliminary view of a judge, which might or might not ultimately be displaced by later evidence and further submissions.
As Mr Cheshire recognised, I did not ask the further question of Mr Birch that I have clarified above in respect of Mr Seymour. However, in case Mr Birch has any concern that a question which I did not ask of him would have given rise to an apprehension of bias, had I asked it, I should make clear that that question, if I had raised them with Mr Birch, would have had the same degree of contingency as it had when I raised it with Mr Seymour.
I should also add to my oral judgment, for completeness, that Mr Cheshire submits that I did not ask Mr Bunbury, who gave evidence for the Plaintiffs, the question that I have set out above in respect of Mr Birch. There is, however, no suggestion that Mr Bunbury holds or is required to hold an Australian financial services licence or a credit licence or a proper authority from such a licensee, so there is no apparent prospect (on the evidence to date) that the issues which may arise in respect of Mr Seymour and Mr Birch, depending on the findings in a judgment, could arise in respect of Mr Bunbury. I would have asked a similar, contingent, question of Mr Bunbury had it appeared he held or needed to hold such a licence or proper authority.

Conclusion

In these circumstances, it seems to me that a fair-minded lay observer, properly informed as to the nature of the proceedings, having identified the relevant questions, the qualifications contained in them and the circumstances in which they were asked, would not reasonably apprehend that an experienced judge, faced with a complex case, numerous documents and extensive cross-examination, had already decided the matter, before the evidence was complete, so that he could not then bring an impartial and unprejudiced mind to the resolution of the many questions that I am required to determine in this case.
Here, there would be no particular hardship to me in disqualifying myself from a hearing that has now run six days, and has left me with nine folders of documents and many pages of transcript to review, so that I ultimately did not need to deliver a judgment in it and the parties were left to commence the proceedings again before another judge. However, my obligation is to hear and determine the cases that are allocated to me, so far as no proper basis for disqualification arises, just as my obligation would be to disqualify myself if a proper basis for disqualification had arisen. It would not, in my view, be a proper exercise of discretion to put the parties to the wasted costs of this hearing, and to put the Plaintiffs to the risk that the proceedings will never be determined by reason of any inability on their part to fund new proceedings, because I wrongly disqualified myself from concluding this hearing.
For these reasons, I am not satisfied that a case for apprehended bias has been made out, or that the properly informed and fair-minded lay observer would consider that I have done anything other than to expose preliminary views in respect of, or a potential outcome of, a significant issue in the proceedings, which had potential consequences which may be adverse to Mr Seymour or Mr Birch, to them. In those circumstances, I decline to disqualify myself from continuing to hear the proceedings, because I am obliged to continue to hear them to their completion.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 October 2024

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