Court of Appeal (ACT)|2016-05-12|Before: Refshauge J

Brisciani v Piscioneri (No 2) [2016] ACTCA 24 (10 August 2016)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

APPEALS - JURISDICTION, PRACTICE AND PROCEDURE - Application for the disqualification of a judge - allegation of bias - form of bias not identified - judicial case management - statement of fact not pre-judgment - no actual bias - judge hearing case involving same party - no reasonable apprehension of bias

Anderton v Auckland City Council [1978] 1 NZLR 657

Duke Group Ltd (in liq) v Pilmer (No 3) [2001] SASC 215

Eastman v Director of Public Prosecutions of the Australian Capital Territory (2003) 214 CLR 318

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Erris Promotions Ltd v Commissioner of Inland Revenue [2003] NZCA 163; (2003) 16 PRNZ 1014

Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1

Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378

Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70

Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288

Piscioneri v Brisciani [2015] ACTSC 106

Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272

Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342

Re Morley; Ex parte Australasian Meat Industry Employees Union (1985) 60 ALJR 402

Re The Governor, Goulburn Correctional Centre & Anor; Ex parte Eastman (1999) 200 CLR 322

Singh v Minister for Immigration & Ethnic Affairs [1996] FCA 902

Sun v Minister for Immigration and Ethnic Affairs [1997] FCA 1488; (1997) 81 FCR 71

Wentworth v Rogers [2004] NSWCA 401

Wentworth v Rogers [2004] NSWCA 430

Western Australia v Watson [1990] WAR 248

J Tarrant, Disqualification for Bias (Federation Press, 2012)

T K Tobin and M G Sexton, Australian Defamation Law and Practice (LexisNexis Butterworths, 2003), looseleaf service 66

G Blank and H Selby, Appellate Practice (The Federation Press, 2008)

1. On 6 May 2015, the applicant, Gabriella Piscioneri, was successful in defamation proceedings she took against the respondent, Anthony Brisciani: Piscioneri v Brisciani [2015] ACTSC 106. Ms Piscioneri was awarded damages of $82,000. Mr Brisciani, however, has appealed against that decision. The Bench assembled for the appeal comprised Murrell CJ, Jagot J and myself.

2. By Application in Proceedings dated 9 May 2016, Ms Piscioneri applied for an order that I (and Murrell CJ) "are disqualified from hearing ACTCA 26 of 2015 [namely the appeal by Mr Brisciani from the judgment of Burns J"]. Ms Piscioneri has also applied by separate Application in Proceedings, for an order that Jagot J disqualify herself.

3. After hearing the application for me to disqualify myself, I dismissed it and proceeded to participate with the other judges in hearing the appeal. I said I would publish my reasons for the dismissal of the application. These are my reasons.

4. The orthodox view, with which I agree, is that the judge whose disqualification is sought should hear and determine the application: Erris Promotions Ltd v Commissioner of Inland Revenue [2003] NZCA 163; (2003) 16 PRNZ 1014 at 1019. In Duke Group Ltd (in liq) v Pilmer (No 3) [2001] SASC 215 at [71], Doyle CJ, who had been asked to disqualify himself said, "the challenge to me continuing to sit should be determined by me, and not by the Court as a whole".

5. Some different practices have been adopted in other jurisdictions and the cases are set out in Professor John Tarrant, Disqualification for Bias (Federation Press, 2012) at pp 311-3. Those practices have not been adopted in this jurisdiction where the orthodox approach prevails.

6. The Application in Proceedings set out one ground as follows:

Justice Refshauge is a judge on the Court of appeal [sic] in a related action in which the parties are the appellant and the respondent. A decision has not been made in relation to costs in that action. Central to the issue of costs in that action is whether a variation to a table in the Court Procedures Rules 2006 enabled a court to award costs in the action before the court and an earlier action. The relevant variation to the Rules was as a result of the Rules Committee's scant deliberations. Justice Refshauge was a member of the Committee that varied the Rules with the result that the appellant could get his costs if successful which he could not before the variation.

7. Rather curiously, it then referred to "Questions of law to be raised" which did not seem to have any relationship to the ground of the application. They were as follows:

Whether the proposed judge (Refshauge, J [sic]) can hear an action involving the same parties when a decision is pending in another action involving the same parties.
Whether the proposed judge (Refshauge, J [sic]) can bring an independent mind to an action when he has previously commented on the judgment on appeal in another judgment and described the award of damages as 'substantial' which imports a view by Refshauge J, that the award was ample. Whether he will bring an independent mind to the cross-appeal for an increase in damages when he has formed the view that the award of damages in SC 859 of 2010 was ample.

8. The Application in Proceedings was supported by an affidavit which purports to set out facts on which Ms Piscioneri bases her application that I disqualify myself. Those facts were relevant to the grounds and to the so-called "questions of law".

9. The first matter to which she refers in the affidavit is a comment that she claims I made in certain other proceedings in which Ms Piscioneri was involved. She deposes that I said, [redacted for legal reasons].

10. In fact, these were not my words. They appear in the reasons for decision by Walmsley AJ in [redacted for legal reasons]. They were his Honour's words and not mine. I did publish a concurring judgment in which I did express my agreement with his Honour's reasons and so may be taken to have adopted them.

11. Ms Piscioneri also deposes that, in the proceedings in which that decision was made, the court sought submissions as to costs and, those submissions having been made, the decision on costs is reserved. That is correct and that decision is pending.

12. Ms Piscioneri then deposes that, in those proceedings, I ordered her to prepare appeal books. That is not quite correct. I did require additional appeal books to be prepared. Of course, appeal books are necessary for every appeal. Indeed, it is a requirement of r 5435 of the Court Procedures Rules 2006 (ACT).

13. Ms Piscioneri explained, in oral submissions, that she had prepared the number of appeal books that she had been told to prepare by the Deputy Registrar but which would have provided only one appeal book to be shared between the three judges hearing the appeal.

14. I required her to prepare two more books so that each judge could have one. This is especially necessary when, as in that case, two of the judges were from interstate and so could not conveniently share with me, even were that reasonable for judges all from the one jurisdiction. In fact, sharing is not reasonable. As experienced Registrar Jennifer Hedge wrote in "Appeal Papers" in G Blank and H Selby, Appellate Practice (The Federation Press, 2008) at 85

Appeal Courts are superior courts of record and in principle this means that a copy of major documents such as appeal books need to be available as part of the court record. Each judge requires a copy of the appeal books and at least some courts require at least one original copy of the book for the court file.

I do not consider that unreasonable and am of the view that it is necessary for each judge on the Court of Appeal to have an appeal book for the appeal.

15. While I appreciate that this may have involved some cost for Ms Piscioneri, that is an inevitable consequence of participation in appeals. There was a rational basis for the decision I made which cannot found a claim of bias.

16. Ms Piscioneri also deposes that I was involved in making certain rules of court which, when the rules were ultimately made, resulted in her inability to obtain costs in an action and caused her extra burden, and that this showed bias. This is a submission she has previously raised and which has previously been dismissed. See [redacted for legal reasons]. I concluded at [37]:

17. Ms Piscioneri did not attempt to challenge or suggest any error in the reasons and made no better explanation of this claim than she did on the previous occasion. In the light of these reasons there is no need to address this ground further.

18. It also became clear in her oral submissions, that Ms Piscioneri had not explored, to any reasonable degree the facts said to support the claims she made. For example, she was not aware of the range of damages awarded in defamation cases so as to be able to assess whether, as a matter of fact, the award was rightly to be described as substantial.

19. Similarly, in relation to the requirement to prepare two additional appeal books, I explained to her the need for such copies as I have done above (at [14]), an explanation given at the time I gave the direction and which Ms Piscioneri said she had forgotten. She appears to have made no attempt to revive her memory from the transcript or otherwise to ensure that she had a proper understanding of the reasons for the decisions which I made.

20. It seems to me that it is incumbent upon an applicant, who applies to a judge to disqualify himself or herself, to ensure that the material on which they rely is of such substance that there is a real basis for the application and not merely a speculative basis that, in effect, requires the judge, the subject of the application, to conduct searches and make inquiries to determine whether vague and general allegations could contain some issue which would justify disqualification.

21. As Mahoney JA said in Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 at 396:

[To] infer bias or otherwise such conduct as would require that proceedings be set aside is a matter of some gravity, and, in my opinion, a court will not draw such an inference, unless the material from which it is to be inferred has the appropriate degree of cogency.

22. Ms Piscioneri did not identify in her application whether she alleges that I am actually biased or that a reasonable fair-minded person might apprehend that I was biased, though the way she put the matter appeared to allege actual bias, namely that I "will not bring an open mind to the determination of the appeal". Indeed, in oral submissions she said that she was alleging actual bias.

23. To show bias, a party must show that the judicial officer has a pre-judgment or antagonism to the litigant which prevents a fair hearing of that litigant's case. As North J said in Sun v Minister for Immigration and Ethnic Affairs [1997] FCA 1488; (1997) 81 FCR 71 at 134, though in the context of an administrative decision-maker, actual bias exists

where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant.

(citations omitted)

24. As Mahon J said in Anderton v Auckland City Council [1978] 1 NZLR 657 at 687, actual bias entails "as a necessary ingredient, the operation of unlawful motive or intent in reaching the decision". Lockhart J said in Singh v Minister for Immigration & Ethnic Affairs [1996] FCA 902 at p 6, that evidence to establish actual bias

may consist of actual statements made by the person said to be biased, and of objective facts and circumstances from which an inference of bias may properly be drawn.

25. In the material supporting this application, there was no allegation of any prejudgment or hostility so as to show I had made up my mind against Ms Piscioneri, nor to show any motive or intent of the kind necessary. I bear no ill-will to Ms Piscioneri and have no pre-conceived views about her or the subject matter of the appeal. There was no evidence of objective facts or circumstances from which an inference of bias could properly be drawn.

26. Nevertheless, I should briefly consider each of the matters said to show bias.

27. The first was a statement on which she relied, namely the comment about the quantum of damages. There seem to me to be two complete answers to this.

28. The first is that the comment was, as I have explained above (at [10]), not made by me but by another judge in extensive reasons on the appeal. Although I agreed with the reasons of his Honour, the words were not mine.

29. In any event, Ms Piscioneri has, in my view, mistaken the comment. It referred to "substantial" damages in contrast to "nominal" or "insubstantial" damages. In that context, it was a statement of fact. There is no suggestion in the comment as to whether the amount was appropriate to the actual defamation or not.

30. In my view, the statement was simply factual. To test that, I have considered the table of damages awarded in defamation proceedings published in the standard practice book, T K Tobin and M G Sexton, Australian Defamation Law and Practice (LexisNexis Butterworths, 2003), looseleaf service 66, 13,061-7. Of the thirty-six cases there extracted, twenty-two showed awards of amounts less and, in some cases, considerably less, than the amount awarded to Ms Piscioneri in this case, showing that, even comparatively, the amount awarded to her was fairly described as substantial. Indeed, eight of the decisions resulted in awards of less than $25,000.

31. In my view, it could not be held that the comment suggested that the amount was inappropriate having regard to the defamation found by the trial judge. There is no pre-judgment. The statement is simply one of fact. Indeed, Ms Piscioneri effectively conceded this in oral argument.

32. In my view, that description of the damages, insofar as I could be said to have adopted it, could not show a prejudgment of any issue on the appeal nor any hostility to her or motive or intent to prefer her opponent.

33. So far as the question of the appeal books is concerned, I explained the need for an appeal book for each judge. Whether that was inconsistent with any direction of a Deputy Registrar seems to me to be beside the point. The court requires the necessary material to be able to properly discharge the hearing obligation on each appellate judge to hear and determine cases such as an appeal do so.

34. Again, in oral argument, Ms Piscioneri effectively conceded that this explanation justified the order even, though it obliged her to spend further money in getting the appeal books prepared.

35. It seems to me that there is no basis for me to disqualify myself on the grounds of actual bias.

36. So far as her claim is then made on the basis of a reasonable apprehension of bias, I will briefly address that issue as well.

37. I set out the test in [redacted for legal reasons], as follows:

The test to be applied has been authoritatively determined by the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 345; [8] as follows:

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.

38. The characteristics of the person from whose perspective the apprehension of bias under this test must be assessed has been variously described: "fair-minded informed lay observer" (Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 92), "reasonable or fair-minded observer" (Vakuata v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 585) and in many other ways. I will use the formulation of the reasonable, fair-minded and informed member of the public, which seems to me to sum up the relevant characteristics.

39. None of the matters raised above could give rise to a reasonable apprehension of bias as so explained. I have set out the basis on which I have rejected them as claims of actual bias and, in each case, that is adequate to show that a reasonable, fair-minded and informed member of the public would not apprehend that I would be biased against Ms Piscioneri.

40. Thus, the only other question, in this regard, was whether I could "hear an action involving the same parties when a decision is pending in another action involving the same parties".

41. I am not aware of any principle of law that prevents a judge hearing an action when that party is already a party in another action and none was cited. Indeed, the situation described is a common occurrence. For example, I regularly hear actions in which the Commonwealth or the Territory is a party and, from time to time, those actions are heard when other proceedings are pending, indeed, when the decision may be reserved.

42. That situation may be somewhat different in that it involves a party who is not an individual, but there are many examples of proceedings where courts have heard a number of cases involving the same parties, including individuals. The various proceedings in the High Court involving David Harold Eastman (Re The Governor, Goulburn Correctional Centre & Anor; Ex parte Eastman (1999) 200 CLR 322, Eastman v The Queen (2000) 203 CLR 1 and Eastman v Director of Public Prosecutions of the Australian Capital Territory (2003) 214 CLR 318) are examples of where the same, or substantially the same, bench of judges heard appeals involving the same or substantially the same parties.

43. Because the High Court is the final court of appeal, it may also be relevant to look at an intermediate court of appeal. In 2004 to 2006, the New South Wales Court of Appeal dealt with three matters involving the same parties. Two judges appeared in all three matters (Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474; Wentworth v Rogers [2004] NSWCA 430; Wentworth v Rogers [2004] NSWCA 401).

44. Certainly, so far as practice is concerned, the hearing of an appeal does not disqualify a judge from hearing a subsequent appeal involving the same party or parties.

45. So far as principle is concerned, there are three situations from which the relevant approach may be discerned.

46. In the first place, there may be an apprehension of bias from views expressed in other cases. An example is in Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, where one of the appeal judges in the NSW Court of Criminal Appeal had, in an earlier, unrelated case, expressed such a view about the appellant and his prosecution that the High Court held the judge should have disqualified himself, because, as Dawson J said at 21, his Honour's remarks in the earlier decision showed "an element of pre-judgment in emphatic, if not coloured terms".

47. In this case, however, no such statement was identified by Ms Piscioneri that could found a justified apprehension of bias.

48. In the second place, there is an analogy, perhaps, with the situation where cases are being case-managed or involve a number of interlocutory steps. Here, a party who has been unsuccessful in some earlier application made or opposed by the party may consider that such a finding discloses an attitude towards him or her that justifies disqualification.

49. That such adverse decisions are made, without more, does not justify disqualification. In Re Morley; Ex parte Australasian Meat Industry Employees Union (1985) 60 ALJR 402, Dawson J held that making a permanent injunction in proceedings did not disqualify a judge from then considering further applications in the proceedings, including a claim for damages, even though the trial judge had expressed views on the reliability of witnesses. Justice Dawson, in dismissing an application for prohibition to the trial judge, said, at 404, that the making of decisions at different stages in the proceedings

does not carry with it the implication that the judge, in reaching a conclusion upon one issue must subsequently approach another issue with a closed mind, unable to give proper weight to any further material which might be put before him.

50. Finally, findings on the credibility of a party may, in appropriate circumstances, be a basis for disqualification. An important example of this, though in the case of a critical witness associated with a party rather than a party, was the well-known High Court decision in Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, where the court held that this justified disqualification for apprehended bias.

51. In an appeal, however, it is rare for the credibility of a party to be in issue. This is clear from the judicial restraint required of appellate judges, as expressed in decisions such as Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 126-7.

52. In the matter in respect of which the costs order has been reserved, there were no questions of or findings about the credibility of Ms Piscioneri. [redacted for legal reasons]. The matter was one of law, principally as to whether the decision of Penfold J was correct, where her Honour dismissed an appeal from a Magistrate on the ground that it was incompetent. That was entirely a matter of law.

53. The other decision challenged in the appeal was whether Penfold J should have disqualified herself from the hearing. Again, there were no issues of the credibility of Ms Piscioneri for consideration, only a determination of what had occurred, none of which was controverted, and whether her Honour had applied the correct approach to these facts.

54. Thus, I have not had to make any findings as to the credibility of Ms Piscioneri such as may raise a reasonable apprehension of bias.

55. As none of the grounds would justify a reasonable, fair-minded and informed member of the public apprehending that I would be biased against Ms Piscioneri and as the ground suggesting that I am actually biased and would not bring an independent and impartial mind to the issues to be decided on the appeal has not been made out, I did not need to disqualify myself from hearing the appeal because of bias or apprehended bias.

56. Indeed, there is a duty on a judge, a duty relating back to at least the late 19th Century set out in Sharp v Carey [1897] ArgusLawRp 121; (1897) 23 VLR 248 at 255, to sit on a case to which he or she has been assigned if there is no valid bias for disqualification. As the Court of Appeal in Western Australia said in Western Australia v Watson [1990] WAR 248 at 264:

... the duty of the judge to disqualify himself [or herself] for proper reasons is matched by the equally significant duty to hear any case in which there is no proper reason to disqualify himself [or herself].

57. See also Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 and Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 348; [19].

58. Indeed, as the High Court commented in Ebner v Official Trustee in Bankruptcy at 348; [20], it would be intolerable "if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case".

59. For these reasons, I dismissed the application.

60. Since I have referred to other proceedings which involved Ms Piscioneri but in which her name was anonymised, two versions of these reasons have been produced. One is the full version with cross-reference to those other proceedings. This version is for distribution only to the parties. Further publication may breach statutory prohibitions. The version published more widely will have those cross-references redacted.

I certify that the preceding sixty [60] numbered paragraphs are a true copy of the Reasons for Judgment of Justice Refshauge.

Procedures Rules 2006

Brisciani v Piscioneri

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Judgment (102 paragraphs)

Brisciani v Piscioneri (No 2) [2016] ACTCA 24 (10 August 2016)

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