The first bias application
11The first disqualification application was made on the basis of apprehended bias. Before explaining the reasons why this application has been rejected, it is necessary to observe that the hearing has proceeded with certain difficulties. While not accepting the Attorney General's submission that only one of the defendants should be permitted to make submissions, given their joint interests, I did require that they not merely repeat submissions which the other had made, which they supported, but that they restrict themselves to dealing with matters which had not already been dealt with by the other. With some difficulty, the defendants have attempted to abide by that request, but they have not always been successful. It has been necessary to direct that they not repeat what has already been dealt with by the other defendant and that they not repeat themselves, or elaborate on subject matters which have already been dealt with, after I have directed them to move on.
12There have been other difficulties which will not be readily apparent from the transcript. While one of the defendants is on his feet, the other provides an almost running, loud commentary, conducted in another language, in which he appears to be making suggestions about what is to be put by the other, who is on his feet. Occasionally this leads to long delays and on some occasions, this leads to disagreements between the defendants, some of them vehement.
13This situation has plainly sometimes made it difficult for the defendants to follow what other parties are putting, or what I am trying to raise with the defendant who is addressing the Court. Questions or observations directed to the defendants frequently result in lengthy consultation between them, before any response is given. In some instances there is no response, but their discussion appears to divert them from the question posed and they then seek to move to other matters, without first responding. It is thus necessary to ask the defendants to return to the question asked. On occasions they interject and speak over each other, or me if I seek to ask a question, or bring repetitive submissions to a close. The defendants sometimes interrupt each other when they disagree, or seek to move on to deal with other matters which have occurred to them, before the particular matter in hand has been dealt with.
14Given the draconian nature of the relief here sought by the Attorney General, that the circumstances in which the defendants find themselves are very difficult for them to deal with, may readily be understood. They have said something about that and have explained their intent to resist the Attorney General's application, exercising all of their legal rights. The result is that the defendants have been granted latitudes which parties who are legally represented would not be given. Nevertheless, of necessity the difficulties which have arisen have had to be managed, given the obligations imposed by the Act.
15That Act requires that when exercising any power given by the Act, the court must 'facilitate the just, quick and cheap resolution of the real issues in the dispute or proceeding' (s 56). Section 57(1) requires that the proceedings be managed having regard to the following objects:
"(a) the just determination of the proceedings,
(b) the efficient disposal of the business of the court,
(c) the efficient use of available judicial and administrative resources,
(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties."
16Section 58 requires that in making orders and directions the court 'must seek to act in accordance with the dictates of justice, having regard to various specified matters'. Section 59 requires the court to seek to eliminate delay. Sections 61 to 63 gives the court wide powers to give litigants directions as to the conduct of the proceedings, directions which must be adhered to. Section 56(3) imposes the relevant duty upon parties:
"3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court"
17Against this statutory background, in practical terms what this has meant is that steps have repeatedly needed to be taken, in order to ask the defendants to take certain steps, or to insist that they refrain from pursuing others. This has led to certain frustrations on the defendants' part, particularly when I have rejected applications which they have made, in some cases repeatedly.
18In considering the disqualification application, I had regard to the fact that it was over the Attorney General's objection that I determined first to hear the defendant's application for summary dismissal of the proceedings and gave them certain leave to cross-examine Ms Kavanagh. I also did not accede to other submissions urged for the Attorney General as to the course which I should pursue, in relation to a number of other matters which had arisen, which it is unnecessary to outline.
19Conversely, I also took steps which I considered necessary, so far as the defendants were concerned, as I have explained, to ensure that the hearing proceeded in an orderly fashion. While they are unrepresented, it seems on their evidence and submissions that the defendants are very experienced in the conduct of legal proceedings and the practices of this Court, in relation to a variety of matters. In my assessment, the directions and rulings which I gave were necessary in the circumstances which had arisen and could not in these circumstances give rise to any apprehension of bias in the mind of a fair-minded lay observer of these proceedings.
20The first application was put on a number of broad bases. They included that a fair minded observer would form the view that I was biased and would in future be biased; that not only I, but any Supreme Court judge would not be able to distance himself from this case and would not be able to bring an impartial mind to the proceedings; and that if in proceedings before the Court in 2000 brought by Mr Dragan Markisic, evidence led by the State and the Commonwealth had not been accepted by this Court, these proceedings would not have been brought. There had then been an inclination towards Government by this Court, rather than an enquiry which should have been undertaken by the Court, into earlier proceedings before the Family Court.
21The bias was said on this occasion to be revealed by refusal of applications such as one that Mr Emmett, the Attorney General's counsel, be called to give evidence and my failure to allow the defendants to make submissions which they wanted to advance about various matters. It was also complained that I had not accepted an argument that legal professional privilege claimed by the Attorney General in respect of the preparation of an affidavit Ms Kavanagh had sworn, in circumstances where the privilege had been waived, because the defendants alleged that there had been fraud committed in relation to a judgment purportedly given in these proceedings by Rothman J on 7 November (see Attorney-General in the State of New South Wales v Markisic [2011] NSWSC 1333). Adequate reasons had not been given for any ruling. The approach adopted had the result that the defendants had been denied the opportunity to put all relevant evidence before the Court, as to that fraud. They ought to have been given the opportunity to finalise their investigations into their suspicions, as they wished to do.
22In the circumstances the defendants suggested that it was necessary for the Court to make arrangements to have a judge from some other country appointed to preside in the proceedings. This was because I, like many other judges of this Court who had accepted false evidence in other proceedings, was not impartial or fair minded, with the result that the defendants had suffered great injustice over many years. Given allegations of criminal conduct which they had advanced against a former High Court judge, it was also not appropriate for any member of the High Court to preside over these proceedings and so it was necessary for a judge to be brought from some other Commonwealth country.
23I was satisfied that none of these submissions could be accepted. It is not in question 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 or she might not bring an impartial and unprejudiced mind to the resolution of the questions involved in the matter (see Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568). The test for disqualification for apprehended bias is well settled and has been repeatedly discussed. For example, the High Court observed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337:
"6 Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), 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 (R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v NSW Bar Association (1983) 151 CLR 288; Re JRL; Ex parte CJL (1986) 161 CLR 342; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41; Johnson v Johnson (2000) 201 CLR 488.). That principle gives effect to the requirement that justice should both be done and be seen to be done (R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259, per Lord Hewart CJ.), a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
7 The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror."
24The High Court went on to say:
"19 Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
20 This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
21 It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.
22 The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal."
25It is also settled that what the fair-minded observer can have attributed to him or her is "knowledge of the actual circumstances of the case" (see: Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 87 per Mason CJ and Brennan J (with whom Gaudron and McHugh JJ agreed). That a fair-minded observer could come to the view, in the circumstances that had arisen, that neither I nor any other member of this Court could bring an independent or impartial mind to the determination of the issues arising in these proceedings, cannot be accepted. Broad, unsupported assertions as to errors in previous proceedings and judgments, is not a basis upon which such a claim could be established. Nor is the fact that the defendants have wide ranging complaints about the conduct of the Crown Solicitor, Mr Ian Knight, and against various other people, a basis upon which such a claim could be accepted.
26The complaint in relation to the cross-examination of Ms Kavanagh requires some comment. Cross-examination was permitted in relation to two paragraphs of her second affidavit, where she recounted that Rothman J had given two judgments in these proceedings, on 28 October and 7 November. The authenticity of the 7 November judgment was put in issue. The cross-examination explored how Ms Kavanagh had come to receive an email and a document purporting to be the judgment, which were annexed to her affidavit; what she had done with the documents; and how her affidavit had been prepared. That latter cross-examination reached a point where a claim for legal professional privilege was raised and accepted.
27It was common ground that the defendants had asked Rothman J to hear them in open court, as to two applications which they wished to advance in relation to his Honour's 28 October judgment: one for certain corrections to be made under the slip rule, the other that his Honour reconsider his judgment in identified respects. There has been no further hearing in open court before his Honour and any judgment given on 7 November, was not given in open court.
28In the circumstances it became apparent that a determination of what had transpired in relation to the 7 November judgment was unnecessary, in order for the defendants' application for summary dismissal of the Attorney General's application to be dealt with. That view was later confirmed, when the defendants urged the view that whatever had happened in relation to any judgment given on 7 November, it was not relevant to anything which had to be determined in connection with the summary dismissal application.
29In the ordinary course, if a judgment is given, the Judges' Associate takes the necessary administrative steps to advise the parties; to allocate a medium neutral citation to the judgment; to publish it on the Court's website; and to place a certified copy of the judgment on the file. Communication with parties is frequently undertaken by email. In this instance there was no certified copy of a 7 November judgment given by Rothman J on the file, but such a judgment does appear on the Court's website and a document purporting to be such a judgment was sent to the parties by email, or at least to all parties, other than Mr Dragan Markisic.
30This has led the defendants to hold various opinions, including that his Honour would not have given judgment, without acceding to their request to be heard in open court; that his Honour gave no judgment on 7 November; that the document annexed to Ms Kavanagh's affidavit has been fabricated; that his Honour's Associate did not send anyone a copy of any judgment his Honour had given; even if his Honour had purported to give judgment, he had not done so, because there had been a failure to comply with the applicable Court Rules; even if judgment had been given, his Honour had erred.
31The defendants have a view that there has been a fraud committed by someone in the Attorney General's employ, while the file was not with a judge of this Court. That was a view which they sought to explore through the cross-examination of Ms Kavanagh. There was an objection to questions going to the preparation of the affidavit, legal professional privilege being claimed. The defendants' argued that it did not exist, in the event of fraud. I did not accept the submission, taking the view that more than the mere assertion of fraud was required, before such privilege was waived.
32That the file had been physically in places other than a judges' chambers at certain times was apparent. The matter has been before the Registrar and has been dealt with by the list judge, before it was allocated to me for hearing. All of this did not, in my view, point to a fraud.
33His Honour had advised the parties during the course of the hearing that he would be on leave after 4 November. Obviously that did not prevent his Honour from dealing with the defendants' 4 November application, if he determined it ought to receive his attention. It was a matter for his Honour to determine how he would deal with the application (see s 90(1) of the Civil Procedure Act ). If his Honour determined to give judgment, he was entitled to do so in the absence of the public (see r 36.3 and Palmer v Clarke (1989) 19 NSWLR 158 per Kirby P and McClymont v The Owners-Strata Plan No 12139 [2009] NSWSC 276; (2009) 74 NSWLR 404 per McCallum J).
34His Honour's Associate later allocating the judgment a medium neutral citation; publishing it on the Court's website and advising the parties of the judgment by email, is not out of the ordinary course. That there is not a certified copy of that judgment on the file, is not usual. That does not, however, of itself, suggest any fraud. It is entirely possible that there is an innocent explanation, for example, that there has been an oversight, or because the document has gone astray.
35An enquiry made of his Honour after his return from leave, will readily ensure that any oversight, if that is what has occurred, is remedied. In the unlikely event that there has been a fraud, that will also be revealed by such an enquiry, in which event any appropriate application can then be made.
36The complaint that I had not permitted the defendants to finish their submissions without interruption, had to be considered in the light of the obligations imposed on the Court by the Civil Procedure Act . In that respect, matters of the kind discussed by the Court of Appeal in Galea v Galea (1990) 19 NSWLR 263 at 279 had to be considered:
"It is true that Jacobs J in R v Watson (at 294) expressed the opinion that judicial silence was "a counsel, of perfection". But in Vakauta (at 611; 635; 68, 939) Brennan, Deane and Gaudron JJ said:
"... We respectfully disagree with the application of that observation to a trial judge sitting without a jury. It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown, until they emerged as final conclusions in his or her judgment would not represent a model to be emulated."
In the United States it has been suggested that such silence may even represent a denial of natural justice: cf David L Shapiro, "In Defense of Judicial Candor" (1987) 100 Harvard L Rev 731 at 737; cf also Stead v StateGovernment Insurance Commission (1986) 161 CLR 141 at 145[PDF]; Gordon M Jenkins & Associates Pty Ltd v Coleman (1989) 87 ALR 477 at 484(1989)ATPR 40-974 at 50, 653 and Cavanett v Chambers [1968] SASR 97at 101. It is argued that it may represent a failure of the judicial decision-maker to expose to the party who may be adversely affected (and that party's representatives) preconceptions, opinions and formulating conclusions so that the party has an opportunity, before judgment, to be heard to correct and to persuade. I take considerations of this kind to lie behind Powell J's repeated warnings to the appellant (and through him to his counsel) concerning the inferences he was inclined to draw from the answers given to questions during cross-examination. His Honour was doing no more than to give the appellant (as he earlier did the respondent) the opportunity to know the progress of his thinking and to correct an unfavourable impression if this was the product of passing inattention or inexperience in the giving of evidence.
In judging the suggestion of a supervening apprehension of bias, it is reasonable to assume that the hypothetical lay observer would base the opinion on a fair assessment of the judge's conduct in the context of the whole of the trial. A judgment of the loss of impartiality and neutrality would not be made from a short and emotional exchange taken out of context and then weighed in isolation. Judges, like witnesses, are human. Despite their professional training they are, in varying degrees, likely to show the range of emotions to which humanity is heir. Whilst patience is a judicial virtue, so also is a concern about justice, the efficient conduct of proceedings, and the avoidance of unnecessary delay, including to other litigants awaiting their hearing. Judges should understand the variety of skills in communication that exist in the community. Some people are pedantic, even without wishing to be so. I get the impression that the appellant liked to take fine points of language which might delight a seminarian but which could cause irritation to a busy judge who thereby formed the opinion that he was temporising and evading questions which were embarrassing to him. Some of the expressions of Powell J, combed over in a detailed appellate examination of the transcript, are such that, with hindsight, they could doubtless have been improved. On the other hand, the right, and perhaps the duty, of the judge to expose the development of his thinking to the appellant, and explain and justify what he said, can be viewed as a whole and seen in the context. This is especially so when it is considered that the hypothetical lay observer would most likely also have been irritated by some of the appellant's prevarications and would have been aware that, soon afterwards, the emotional storm had passed and the trial resumed its steady progress on calmer seas. The judgment at great length reviewed the facts and with unusual attention to detail explained, fully and unassailably, the rational bases of the conclusion to which his Honour felt driven."
37As observed in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [13]:
"Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx." (footnote omitted)
38I was satisfied that the defendants' dissatisfaction with the directions and rulings which I had made, was not a basis upon which the discretion to disqualify could properly be exercised. They could not give rise to an apprehension of bias in the mind of a fair minded lay observer.