Attorney General of New South Wales v Bar-Mordecai [2009] NSWSC 117 | Case summary

EX TEMPORE JUDGMENT 1 HIS HONOUR: The substance of this proceeding is or relates to leave being sought by Mr Bar-Mordecai for the institution of separate proceedings, inter alia, against the Health Care Complaints Commission and other defendants. Leave is required in order for Mr Bar-Mordecai to institute those proposed proceedings, and the Attorney General is a party, because of the provisions relating to vexatious litigants. 2 When the matter came on for hearing the defendant, Mr Bar-Mordecai, raised with the Court the issue of bias or apprehended bias. Mr Bar-Mordecai may not have put it that quite that way, but Mr Bar-Mordecai is self represented and it is on those principles that he relies. This is also the understanding of the representative of the Attorney General. 3 The principles of apprehended bias are well understood and known. Before dealing with them, I should make some comment as to procedure. The matter was listed before me, notice of which listing would have been given to the parties some time earlier than today. The listing in the newspaper, and on the website of the Supreme Court of New South Wales, would have described that the matter was listed before me this morning at least as early as shortly after 3pm yesterday afternoon. 4 One cannot expect a self-represented person to appreciate the process by which apprehended bias is properly raised, but counsel should and, unless the Court sets out the practice, unrepresented litigants will never find out. 5 The Court of Appeal has previously described the orthodox method of raising with a judicial officer the question of apprehended bias. The relevant passage is cited, without criticism as to practice, by the High Court of Australia in Livesey v the New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 292. In Livesey there was an application made by counsel relating to apprehended bias in which counsel, together with counsel to whom they were opposed, approached the judges in chambers to notify them of the application to be made and its basis. That is the usual practice, when legal practitioners are involved in an application of that kind and non-compliance with it ought to be criticised. 6 In the case of a person, who is not represented by a legal practitioner such person may not have either the capacity or the knowledge associated with the means by which she or he might, together with her or his opponent, approach a judicial officer and deal with the matter in chambers, prior to the Court being convened. It is, for such a person, at least, incumbent upon the person, once they are aware, or ought to be aware, of the judicial officer who is sitting, for the person to notify the judicial officer through the judicial officer's associate of the intention to make application for the judicial officer to disqualify himself or herself and the basis of that application. This is a courtesy, but it is not simply a matter of courtesy. 7 Such notice aids in the administration the justice. It allows the other party, to the extent necessary, to be represented by a different counsel, if the application were to relate to a relationship between the judge and counsel, for example, and it allows the judicial officer to understand the nature of the application and to be prepared for it, prior to it being agitated in Court. That aids the administration of justice. 8 There may be some circumstances, for example, different from the current circumstances, that would be embarrassing to a judicial officer for it to be made public or for a relationship to be made public, such as the ownership of a substantial shareholding, for example, or a personal relationship of some kind. 9 An earlier notification of the application allows a court or tribunal to re-allocate the matter, possibly with the necessity of re-allocating two matters, and, therefore, not occasioning delay. I make the foregoing comments, because the first time this matter was raised with the Court, as presently constituted, was when the matter convened. 10 Further, where counsel, or a legal practitioner, is aware than an application of such kind is to be made, it is appropriate that this practice be brought to the applicant's attention. 11 I then deal with the principles relating to apprehended bias. The general principle is that a judge, or judicial officer, or member of a tribunal, should not hear a case, if, in all of the circumstances, the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions involved in it: Livesey, supra, at pages 293 to 294, R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248. 12 It is inappropriate for a judicial officer to take the "easy option" and accede to such an application without coming to the conclusion that it is necessary. Judicial officers, and most members of most tribunals, are under a duty to hear and determine matters allocated to them: see Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, Re Polites; Ex Parte Hoyts Corporation Pty Ltd [1991] HCA 25; (1991) 100 ALR 634.

13 Thus, it is necessary for me to determine, whatever may be may be my inclination, whether there is a reasonable apprehension that I could not bring an impartial mind to the determination of the issues between the parties in these proceedings. 14 In order for there to be a reasonable apprehension of the relevant kind, it is necessary that a fair minded lay observer, properly informed, reasonably apprehend that I might not bring an impartial mind to the resolution of the issues in the proceedings: see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344 in which it was 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 , supra, at 344, per Gleeson CJ, McHugh, Gummow and Hayne JJ.) 15 His Honour Justice Kirby, President of the Court of Appeal, referred to the term of "properly informed fair minded lay observer" in somewhat "tongue in cheek" terms as "the ordinary reasonable citizen on the Emu Plains Omnibus." That was a passage in S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358, later adopted by Justice Kirby in the High Court in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488. 16 As his Honour the President there noted, there is a problem with bringing too great a sophistication to the assumed knowledge of the hypothetical bystander and translating it into a test that relates to the reasonable apprehension of an onlooker judge or legal practitioner. 17 In the end it is a matter of both probity and appearance. Mr Bar-Mordecai asserts that advice was given in conference by me in 2000. Frankly, I have little recollection of the details of such an advice. I do have a recollection of being approached, in relation to an appeal to the High Court, in a matter involving, as best as my recollection goes, probate and the distribution of assets of an estate. Mr Bar-Mordecai asserts, from the bar table, that the advice and the issue is connected with the application. I accept that assertion, but, as I do not recall the details, cannot confirm it. 18 In the circumstances, I am confident that, while I would bring a fair and impartial mind to the question at issue, I also believe that the appearance, in those circumstances, is one which might bring a fair minded onlooker to the view that there was an apprehension of the relevant kind, knowledge I have that is not public, and, therefore, there is an appearance of unfairness or partiality. 19 I hasten to add that I think it is inappropriate for a judge, faced with an application to excuse himself (or herself) for apprehended bias, to descend into factual contests with the party who makes that application. Of itself, that would tend to give rise to an appearance of bias. For those reasons, I grant the application and I excuse myself from the hearing of this matter.

Attorney General of New South Wales v Bar-Mordecai

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