British American Tobacco Australia Ltd v Peter Gordon & Anor - [2007] NSWSC 109 - NSWSC 2006 case summary — Zoe

NSWNSWSC

British American Tobacco Australia Ltd v Peter Gordon & Anor

[2007] NSWSC 109

Supreme Court of NSW|2006-12-14|Before: Brereton J, Merkel J

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Source facts

Court

Supreme Court of NSW

Decision date

2006-12-14

Before

Brereton J, Merkel J

Source

Original judgment source is linked above.

Judgment (136 paragraphs)

[1]

CITATION : British American Tobacco Australia Ltd v Peter Gordon & Anor [2007] NSWSC 109 This decision has been amended. Please see the end of the judgment for a list of the amendments.

[2]

DECISION : Indication that judge would not sit on hearing in which there might be issue as to alleged iniquity. Decline to disqualify from hearing of transfer application. Held that not disqualified by apprehended bias from hearing and determining interlocutory proceedings on 29 November 2006, and further that orders made on 29 November 2006 should not be set aside for non-disclosure.

[3]

CATCHWORDS : COURTS AND JUDGES - Disqualification - Bias - Judge in own cause - Procedure - whether notice of motion for disqualification cognisable - whether notice of motion necessary - held, unnecessary - Apprehended bias - whether prior professional relationship between lawyer and client will disqualify lawyer, on becoming a judge, from sitting in proceedings to which former client is a party - whether reasonable apprehension of prejudgment of an issue - whether reasonable apprehension that judge may be predisposed to a view of the issue because of "interest" in propriety of past involvement - whether reasonable apprehension that judge may decide issue influenced by extraneous material previously briefed and subject to legal professional privilege of former client - whether reasonable apprehension of bias on an issue in case disqualifies judge from hearing interlocutory applications in which that issue will not arise - held, it does not.

[5]

A1 v King QC (FCA, Merkel J, 31 May 1996, BC 9602233) Application of Cannar; Re Eubanks [2003] NSWSC 802 Ashburton v Pape [1913] 2 Ch 469 Aussie Airlines Pty Limited v Australian Airlines Pty Limited & Qantas Airlines Limited (1996) 65 FCR 215 Bainton v Rajski (1992) 29 NSWLR 539 Barton v Walker [1979] 2 NSWLR 740 British American Tobacco Australia Services Limited v Cowell [2003] VSCA 43 (23 April 2003) British American Tobacco Australia Services Limited v John Fairfax Publications & Anor [2006] NSWSC 1175 British American Tobacco Australia Services Limited v John Fairfax Publications & Anor [2006] NSWSC 1197 British American Tobacco Australia Services Limited v John Fairfax Publications & Anor [2006] NSWSC 1328 British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197 Calcraft v Guest [1898] 1 QB 759 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Gascor t/as Gas & Fuel v Ellicott, Esso Australia Resource Ltd & BHP Petroleum (NW Shelf) Pty Ltd [1997] 1 VR 332 Goddard v Nationwide Building Society [1987] QB 670 J Aron Corp v Newmont Yandal Operations Pty Ltd [2006] NSWSC 720 Johnson v Johnson (2000) 201 CLR 488 Kartinyeri v Commonwealth of Australia [1998] HCA 52 CASES CITED : Livesey v NSW Bar Association (1983) 151 CLR 288 Locabail (UK) Ltd v Bayfield Properties Limited [2000] 2 WLR 870, 883 (CA) McCabe v British American Tobacco Australia Services Ltd [2002] VSC 73 McCabe v British American Tobacco Australia Services Ltd [2002] VSC 150 McCabe v British American Tobacco Australia Services Ltd; sub nom [2002] VSC 172 McCabe v British American Tobacco Australia Services Ltd; sub nom [2002] VSC 112 Precision Fabrication Pty Ltd v Roadcon Pty Ltd (1991) 104 FLR 260 R v Commonwealth Conciliation & Arbitration Commisison; Ex parte Angliss Group (1969) 122 CLR 546 R v Garrett (1988) 50 SASR 392 R v Judge Russell; Ex parte Reid (1984) 35 SASR 417 R v Moss; Ex parte Mancini (1982) 29 SASR 385 Raybos Australia Ltd v Tectran Pty Ltd (1986) 6 NSWLR 272 Re JRL; Ex parte CJL (1986) 161 CLR 342 Re Polites; Ex parte The Hoyts Corporation Pty Ltd (1991) 173 CLR 78 S&M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1998) 12 NSWLR 358 S&R Investments Pty Ltd v Minister for Planning [2001] WASC 255 Smits v Roach (2006) 228 ALR 262 Taylor v Lawrence [2003] QB 528 Thellusson v Lord Rendlesham (1859) 7 HLC 429, 11 ER 172 Vakauta v Kelly (1989) 167 CLR 568 Western Australia v Watson [1990] WAR 248

[12]

· Whether I should disqualify myself from hearing "the matter"; · Whether or not I should discharge the orders made on 29 November 2006 based upon the facts said to require my disqualification; and · Whether the orders of 29 November 2006 should be discharged in any event for serious material non-disclosure of relevant matters on and prior to 29 November 2006. 3 The application requires some understanding of four sets of litigation: the McCabe proceedings; the Cannar proceedings (which is where my involvement as counsel arose); the Fairfax proceedings; and the current proceedings. The McCabe Proceedings 4 Rolah McCabe, for whom Slater & Gordon acted, sued BATAS in the Supreme Court of Victoria for damages for personal injury claimed to have been occasioned by her smoking cigarettes manufactured by BATAS over many years. On 22 March 2002, Eames J published reasons for orders (which his Honour made on 25 March 2002) striking out the defence and directing that the trial proceed as an assessment of damages only, on the ground that BATAS had, before the proceedings had been commenced, engaged in a policy of document destruction in order to put beyond the reach of potential plaintiffs evidence which might otherwise be obtained on discovery and used to the detriment of BATAS [McCabe v British American Tobacco Australia Services Ltd [2002] VSC 73]. Damages were assessed, and judgment given for Mrs McCabe on 11 April 2002. On 9 December 2002 the Victorian Court of Appeal allowed BATAS' appeal and ordered a new trial [British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524; [2002] VSCA 197]. Mrs McCabe had died after the appeal was argued but before judgment was given, on 26 October 2002. 5 In the course of the application before Eames J to strike out the defence, many documents were produced on compulsory process and admitted into evidence, claims for legal professional privilege having been overruled on the basis of waiver. Amongst the material that came into evidence in that way was advice given on 2 April 1990 to Mr Cannar, a senior lawyer formerly employed by BATAS, recorded in a note by Mr Oxland (a solicitor of Clayton Utz), which related to BATAS document management policy. On 6 February 2002, Eames J held that privilege in it had been waived, and that the documents which recorded the advice should be produced by BATAS [McCabe v British American Tobacco Australia Services Ltd [2002] VSC 112]. 6 On 24 April 2002, Mrs McCabe commenced separate proceedings in the Supreme Court of Victoria, claiming a declaration to the effect that use of such documents was not constrained by any implied undertaking to use them only for the purpose of the proceedings, and Byrne J acceded to that application on 7 May 2002 [McCabe v British American Tobacco Australia Services Ltd [2002] VSC 150]. This occurred in the context of Slater & Gordon having received a request from the US Department of Justice to provide copies of those documents in connection with a claim by the US Department against various cigarette companies (not including BATAS) alleging violation of the Racketeer Influenced & Corrupt Organization Statute 1961 (USA). The Department was apparently interested in the document management policies of the cigarette companies. On 15 May 2002, Byrne J dissolved an interim injunction obtained by BATAS to protect its claimed confidentiality pending appeal [McCabe v British American Tobacco Australia Services Ltd [2002] VSC 172].

[16]

11 As senior counsel, I received a brief from Corrs Chambers Westgarth, the solicitors who then and now acted for BATAS, in connection with the Cannar proceedings, in or about late December 2002 or early January 2003. On 13 January 2003 I held a conference. On 14 January 2003 I held another conference. I conferred with Mr Westgarth, Mr Whitaker and Mr Micallef (of Corrs) on 29 January 2003 for 1 hour. I conferred with Mr Leeming (then of junior counsel), Mr Westgarth, Mr Micallef and others on 5 February 2003 for 1 hour. On or about 6 February 2003 I gave some telephone advice. On 15 February 2003 I held a conference and settled BATAS' motion. A brief comprising some 827 pages was delivered on or about 5 March 2003. I conferred with Mr Westgarth and Mr Micallef on 11 March 2003 for ½ hour. I conferred with Mr Micallef on 2 April 2003 for ½ hour. On 15 April 2003 I settled BATAS' written submissions, which appear to have been drafted by junior counsel. I probably read a notice to admit served in the proceeding before it was served. There were further conferences (the persons present are not recorded in my records) on 22 April 2003 for 1 hour, and on 29 April 2003 for 1 hour. In addition, there was some reading and preparation undertaken for these conferences. I returned the brief on 13 May 2003, the motion having been set down for hearing on dates for which I was not available. The total fees rendered by me were $5,500 inclusive of GST; they were paid during 2003. 12 The issues addressed in the written submissions that I settled and signed were: · The basis on which it was contended that BATAS should be joined, namely that the proposed subject matter of Mr Cannar's examination were such that BATAS had a direct legal interest in the conduct of the examination, so as to preserve its entitlements to confidentiality and privilege; · The grounds on which it was said the orders for examination should be set aside, namely (1) that they were beyond power, (2) that the application was an abuse of process, and (3) that the judge making the order failed properly to exercise his discretion. The first and third are not relevant for present purposes, but the abuse of process argument contended that when the letter of request was issued and the application made to James J it was manifestly based on material which was and continued to be privileged, it being unclear to what extent the decision of the Victorian Court of Appeal, holding that the documents remained privileged, had been disclosed to the United States District Court in connection with the issue of the letter of request, or to James J on the ex parte application. · The basis on which the US Department's use of privileged material should be restrained, it being said that as a result of the decisions of Eames J and Byrne J, which had been held to be erroneous, it had come into possession of material which it ought never have had, and ought now be restrained from using and compelled to deliver up. 13 Neither those submissions, nor the judgment of Bell J, suggest that the question of "iniquity" as a defence to a claim of confidentiality arose or was addressed.

[40]

34 Mr Smith SC, for BATAL, broadly adopted the same position as BATAS. Fairfax indicated that it would not oppose appropriate orders being made on a final basis in the proceedings brought against it by BATAL, but sought to be heard separately on the question of costs. After the issues had been outlined in that way, I indicated that BATAS v Fairfax would stand down for the time being as requested; I would deal first with the various applications in the Slater & Gordon proceedings; and I would then return to BATAL v Fairfax. 35 The short minutes proposed by Slater & Gordon in BATAS v Slater & Gordon were expressed as follows: By consent and without prejudice, the court orders: 1. On the plaintiff's usual undertaking as to damages, the defendant by itself and its servants or agents be restrained until such time as the court may order, from publishing, disseminating nor using the information contained in those parts of the documents that are identified in annexures A and B to the summons filed on 23 November 2006, save that the defendant is not precluded by this order from using the said information for the purpose of defending or prosecuting a cross claim against the plaintiff in these proceedings and in New South Wales Supreme Court proceeding number 5898 of 2006. 2. That the defendant file and serve any affidavits in support of its motion that the proceedings be transferred to the Supreme Court of Victoria under section 5(2)(iii) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW) (motion) filed by 5 pm on 5 December 2006; 3. That the plaintiff file and serve any affidavits in reply by 5 pm on 12 December 2006; 4. That the defendant file and serve any affidavits in reply to the plaintiff's affidavits by 5 pm on 19 December 2006; 5. That the defendant file and serve its outline of submissions by 5 pm on the day ten business days before the date listed for hearing of the motion; 6. That the plaintiff file and serve its outline of submissions by 5 pm on the day five business days before the date listed for hearing of the motion; 7. That the parties file and serve any submissions in reply by 5 pm two business days before the date listed for hearing of the motion; 8. That the defendant's motion be listed for hearing at 10 am on a date to be fixed by the court; 9. That the notice to produce issued to the defendant dated 24 November 2006 be stood over until …………; 10. Liberty to apply on two day's notice; 11. Such further or other orders as the court deems fit; 12. Costs. 36 It will be observed that para 1 proposed an interlocutory injunction restraining use of the relevant information, save for a limited purpose (which did not include reopening the McCabe proceedings). The corresponding directions proposed by BATAS ("BATAS short minutes of directions for pleading and cross-vesting application") were as follows: By consent, the court directs: 1. The defendant to file and serve any affidavits in support of the motion that the proceedings be transferred to the Supreme Court of Victoria under section 5(2)(iii) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW) ("the motion") by 5 pm on 5 December 2006. 2. The plaintiff file and serve its statement of claim and any affidavits in reply by 5 pm on 12 December 2006. 3. The defendant file and serve its defence and any affidavits in reply to the plaintiff's affidavits by 5 pm on 19 December 2006. 4. The defendant file and serve its outline of submissions by 5 pm ten business days before the date listed for the hearing of the motion. 5. The plaintiff file and serve its outline of submissions by 5 pm on the day five business days before the date listed for the hearing of the motion. 6. The parties to file and serve any submissions in reply by 5 pm on the day two business days before the date listed for the hearing of the motion. 7. The defendant's motion be listed for hearing at 10 am on a date to be fixed by the court. 8. Liberty to apply on two day's notice. 37 BATAS also proposed separate directions in connection with the notice to produce issued by it to Slater & Gordon, providing for its adjournment, and in connection with the interlocutory the short minutes proposed by BATAS were as follows: By consent but without admission, the court orders: 1. The injunctive orders made in these proceedings on 23 November 2006 be vacated; 2. Upon the plaintiff by its counsel giving the usual undertaking as to damages, and subject to order 3, the defendant by itself its servants or agents be restrained until …….. from publishing, disseminating or using the information described in annexures A and B to the summons filed on 23 November 2006 ("the information"). 3. Nothing in order 2 shall preclude the defendant from publishing or disseminating the information to the lawyers it has retained to act for it in these proceedings for the purpose of defending these proceedings . The court notes that the lawyers retained to act for the defendant in these proceedings undertake to keep the information confidential. 38 Thus BATAS also proposed an interlocutory injunction restraining use of the relevant information, save for a limited purpose (which was narrower than that proposed by Slater & Gordon). The italicised portion of paragraph 3 was added in the course of argument, as it became apparent that the use which the defendant's solicitors could make of the relevant information - in particular, whether it would be limited to defence of the instant proceedings or extended to defence of the BATAL proceedings and bringing a cross-claim - was the critical distinction between the positions of the parties. I granted leave to Slater & Gordon to file their transfer motion in each proceeding in which they were a party, made it returnable instanter and dispensed with further service. Slater & Gordon did not oppose the direction sought by BATAS for pleadings but sought a lengthier period in which to file a defence, until approximately mid-January. I acceded to that request, and made directions in accordance with the BATAS short minutes of directions for pleading and cross-vesting application, but substituting 15 January 2007 for 19 December 2006 in paragraph 3. I stood over to 26 February 2007 the hearing of the transfer motions. 39 Thus on the issue of injunctive relief, it was common ground that there should be an interlocutory injunction, and substantial agreement as to its terms, the essential difference between the positions of the parties being whether there should be excepted from the restraint on use of the information its use to prosecute a cross-claim against BATAS, and against BATAL in the other proceeding. Slater & Gordon were unable to articulate what cross-claim they might bring in either proceeding. BATAS contended that to permit information to be used for the purpose of the other albeit related proceeding would potentially destroy the privilege which the proceedings were intended to preserve, referring in particular to Calcraft v Guest [1898] 1 QB 759 and Ashburton v Pape [1913] 2 Ch 469. Reference was made to the possibility that Slater & Gordon might require separate representation in each proceeding to deal with the problem. After discussion, I indicated that I was inclined to allow the more limited exception at that stage, and to consider further the implications of the wider exception, about which the parties might wish to make further submission. I foreshadowed making an interim order and reserving liberty to apply, which might be exercised to seek leave to use the information the subject of the injunction in one proceeding for the purpose of bringing a cross-claim in that proceeding, or to defend or bring a cross-claim in the other proceeding. Accordingly, I made the following orders in BATAS v Slater & Gordon: (1) Discharge, with effect from today, the injunctive orders made on 23 November 2006.

[108]

Apprehended bias 62 Slater & Gordon eschewed any suggestion of actual bias, and founded their application on apprehended bias. The general principle relating to apprehended bias 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 [Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344, [6]]. 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 it real and not remote), not probability. Where the matter has already been decided, the test requires no conclusion about what factors actually influenced the outcome [Ebner, 345 [7]]. However, it is important that judicial officers discharge their duty to sit, and do not by acceding too readily to suggestions of appearance of bias encourage the belief that a party can, by making a disqualification application, obtain a hearing before a judge thought to be more likely to be favourable [Re JRL; Ex parte CJL (1986) 161 CLR 342, 352]. In Raybos Australia Ltd v Tectran Pty Ltd (1986) 6 NSWLR 272, the Court of Appeal emphasised that the duty of a judge to disqualify for proper reason was matched by an equal duty not to disqualify save for a proper reason. Thus, for a judge to be disqualified, there must be a "substantial basis" for the conclusion of apprehended bias [Ebner, 348 [19]]; the apprehension must be "firmly established" [JRL, 352; R v Commonwealth Conciliation & Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, 553-4]. The issue is not whether it would be better for another judge to hear the case, but whether the judge appointed to hear the matter might not bring an impartial and unprejudiced mind to its resolution [Aussie Airlines Pty Limited v Australian Airlines Pty Limited & Qantas Airlines Limited (1996) 65 FCR 215, 230G]. 63 In considering whether a reasonable apprehension of bias has been established, it is necessary first to identify the facts, matters and circumstances by reason of which it is said that a judge might decide a case other than on its merits, and secondly to articulate the logical connection between those facts, matters and circumstances, and the apprehended deviation from the course of deciding the case on the merits [Ebner, 345, [8]; Smits v Roach (2006) 228 ALR 262, [53]-[54], [56]]. 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 of the nature of practice at the Bar - including that a barrister does not become identified with the client and is bound by rules of professional ethics, and that a judge is a professional who by training, tradition and oath is required to discard irrelevant, immaterial and prejudicial material and can be ordinarily assumed to comply with the judicial oath [Vakauta v Kelly (1989) 167 CLR 568, 584-5; Precision Fabrication Pty Ltd v Roadcon Pty Ltd (1991) 104 FLR 260, 264]; Aussie Airlines, 224; Taylor v Lawrence [2003] QB 528, 548 [61], 553F [69]; Johnson v Johnson (2000) 201 CLR 488, 493 [12]-[13]].

[109]

64 The facts, matters and circumstances which it was said might lead me to decide matters other than on their legal and factual merits may be summarised as follows: · I acted for BATAS in the Cannar proceedings as set out above. I was briefed with a substantial amount of information amounting to some 800 pages in connection with that matter, the identity of which cannot be known because of legal professional privilege. · The document management policy was at the heart of the Cannar proceedings, and the intervention of BATAS in that proceeding was to ensure that the document management policy would remain concealed. In substance, though not in terms, my brief was to achieve that result, by preserving the confidentiality and privilege of information that included information the subject of the present proceeding. · BATAS' document management policy was also a central issue in the McCabe proceedings, resulting in the judgment of Eames J striking out the defence because that policy had the effect of denying the plaintiff a fair trial. · The Victorian Court of Appeal set aside the judgment of Eames J on the basis of facts which (so it is said) the information the subject of the present proceedings shows not only to have been incorrect, but to have involved a fraud on the court or a perversion of the course of justice. Slater & Gordon on behalf of the McCabe estate wish to reopen the McCabe litigation for that reason, using the relevant information for that purpose. · In the present proceedings, the purpose of BATAS and BATAL is to continue the concealment of the document management policy, and the ultimate issue will be whether communications and documents that were prima facie privileged were disentitled to privilege by reason of being made in pursuance of an iniquity, namely the document management policy and its concealment in order to suppress relevant evidence for the purpose of perpetuating a miscarriage of justice. 65 As to the logical connection between those facts, matters and circumstances and the feared deviation from the course of deciding the case on its merits, the argument, as I understand it, proceeds as follows:

[113]

67 The starting point is Thellusson v Lord Rendlesham (1859) 7 HLC 429, in which the House of Lords accepted that counsel in a cause, upon being appointed to the bench, was not thereby precluded from taking part in the hearing and discussion of that case, but might properly decline to do so unless it would entail great inconvenience or expense. Lord St Leonards had been counsel is various branches of the case not in dispute in the House of Lords, but did not conceive that this absolved him from doing his duty in participating in the hearing. Lord Chelmsford LC said there was no doubt about the propriety of that course, but that he had himself been counsel in the very case the decision which was now under appeal (and had settled the Notice of Appeal) and should therefore take no part in the judgment, merely sitting but delivering no opinion. Lord Brougham said that it should not be assumed that having been counsel in a cause operated as a disqualification to prevent the same person upon appointment to the bench taking part in the decision of that cause, as such a rule might in some circumstances produce delay and expense and even an absolute denial of justice. Lord Chelmsford LC rejoined that he did not suggest that he laboured under any disqualification, which would put the matter much too strongly, and had he been the only judge available would have heard the case, but as there were others available abstained from participation, as a matter of personal feeling rather than on account of any disqualification. The case therefore suggests that even having been counsel in the very case in suit is not disqualifying, though discretion might suggest that the judge would not sit. However, as has been pointed out by Wells J in R v Moss; Ex parte Mancini (1982) 29 SASR 385 (at 428), "the standards of reason and right conduct in public affairs have undergone a substantial - sometimes even a dramatic - metamorphosis" since then; see also per Mildren J in Precision Fabrication v Roadcon, 264. 68 In R v Judge Russell; Ex parte Reid (1984) 35 SASR 417, the Full Court of the Supreme Court of South Australia (King CJ, Waters and Mohr JJ) held that no fair-minded person would have reasonable grounds for apprehending that, because a judge had in the course of his professional duties as a barrister acted as counsel for the particular employer, he would on appointment to judicial office in the Industrial Court be unable to bring a fair and unprejudiced mind to the decision of matters involving that employer. There was no suggestion that the judge had as counsel advised on or advocated any issue which arose in the instant proceedings. 69 In R v Garrett (1988) 50 SASR 392, the appellant had previously been convicted on charges of abduction, rape and assault from which he had appealed to the Court of Criminal Appeal and sought special leave to appeal to the High Court. On the appeal of the application for special leave, the Crown was represented by counsel who was the trial judge at the present trial. The Full Court held that there being no suggestion of actual bias, and in view of the fact that the trial judge had appeared only at the appellate level and there being nothing to suggest that he had formed any personal view of the case, the reasonable observer would not have apprehended that he might not bring an impartial and unprejudiced mind to the case. 70 The potential differences in this area are set out in the competing judgments in S&M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358, and in the competing positions of the citizens in the Socratic dialogue contained in the joint judgment of the majority (Priestley and Clarke JJA). In S&M, although there had been a long professional association between the judge and Caltex, it was not suggested that the judge had been required to advise on or advocate issues that would arise in the instant case. The majority, as expressed through their "second citizen" in the Socratic dialogue, accepted that the relevant fair-minded observer is one who has some knowledge of the way in which solicitors and barristers work, including that working for "a big business dealing in petrol and oil" might provide information making the judge critical of rather than favourable to the oil company, and that the fact that one has been paid by a litigant for professional services in the past does not mean that after the relationship is severed the judge should be beholden to the former client. Their Honours stressed that all the circumstances of the case must be considered, but that on the facts the judge's extensive professional relationship with Caltex over a decade was not disqualifying. Kirby P, on the other hand, thought that the proximity of the connection, its duration, intensity, nature and likely incidents, together with the fact that it was not disclosed although in the trial judge's mind at the outset, were such as to raise a reasonable apprehension of bias. His Honour also thought that Priestley and Clarke JJA's "second citizen" had imputed a sophistication and knowledge about the law and its ways quite atypical of the general community.

[115]

72 In Western Australia v Watson [1990] WAR 248, the Full Court of the Supreme Court of Western Australia rejected the submission that a judge should ordinarily disqualify himself or herself if there had been a professional association between the judge and one of the parties to litigation and the other party objected (at 263). Their Honours observed that the duty of a judge to disqualify for proper reasons was matched by an equally significant duty to hear any case in which there is no proper reason to disqualify. Their Honours adopted the following passage in the judgment of Kirby P in S&M: 3. Necessarily, where what is alleged is a reasonable apprehension of bias, the fact situations will greatly vary. Thus the apprehension of bias may be grounded in prior judicial activity (as it was in Livesey ) or in family, financial or professional relationships with one of the parties. The determination of whether there is, by the stated test, a reasonable apprehension of bias depends upon a full understanding of the facts from which it is suggested that such apprehension arises. In so far as such bias is said to arise from a relationship between the parties, it is clearly relevant to know the duration of that relationship, its intensity and nature and the time that has elapsed between its last renewal and the performance of judicial functions said to be affected by it. 73 Their Honours added: In our view, however, it is important that the court should understand the concerns which may be felt by litigants or members of the public, whilst bearing in mind that the administration of justice is a practical business which relies to a very great extent upon the ability of Judges to put aside whatever personal or professional associations they may have had and to do justice as they are sworn to do: R v Russell; Ex parte Reid (1984) 35 SASR 417 at 423. 74 In Precision Fabrication Pty Ltd v Roadcon, Mildren J in the Supreme Court of the Northern Territory said (at 264): 6. It is common practice for a judge to disqualify himself where a former client of his, whilst at the Bar, becomes a litigant in a matter to come before him: Lyle v Christian Ivanoff Pty Ltd (1977) 16 SASR 476 at 484, per Bright J. Likewise, a judge should not, in my opinion, hear a matter if he had previously been briefed as counsel in that matter: Thellusson v Lord Rendlesham (1859) 7 HLC 429; 11ER 172, where Lord Chelmsford LC disqualified himself from taking part (although from sitting) in the House of Lords on an appeal in which he had previously been briefed as counsel. However, merely being involved as counsel in peripheral litigation may not require a judge to disqualify himself: Thellusson (supra), where Lord St Leonards who had previously been briefed as counsel "in various branches of this cause on different occasions" did not disqualify himself, although, as Wells J observed in R v Moss; Ex parte Mancini (1982) 29 SASR 385 at 428, "the standards of reason and right conduct in public affairs have undergone a substantial - sometimes even a dramatic - metamorphosis" since then. There does not appear to be any rule of practice that a judge who has previously appeared as counsel against a party who has become a litigant in a matter to come before him should disqualify himself merely on that account. 75 In Re Polites; Ex parte The Hoyts Corporation Pty Ltd (1991) 173 CLR 78, the High Court held (at 87-88) that a prior professional relationship between a lawyer and client does not generally disqualify the lawyer, on becoming a judge, from sitting in proceedings to which the former client is a party, even if as lawyer the judge had given advice on an issue which will arise in the litigation, though it may do so if the correctness or appropriateness of the advice is in issue, and a fortiori if the advice has gone beyond an exposition of the law to advise adoption of a course of conduct to advance the client's interests and it will be necessary to decide whether the course of conduct taken was legally effective, wise, reasonable or appropriate; much depending on the nature of the relationship, the ambit of the advice given and the issues for determination. 76 In Aussie Airlines, the judge explained that in cases of association between judge and litigant the question is not whether the mere existence of the association in question is disqualifying, but whether its nature and extent in the circumstances of the particular case has the result that a reasonable bystander could say that the judge might not bring an impartial and unprejudiced mind to the resolution of the case, and for that purpose there must be something in the nature or extent of the association that leads the bystander to conclude - whether for friendship, love, money, fear, favour, or otherwise - that the judge might be influenced by it. This emphasises the importance of identifying the "logical connection" between the alleged disqualifying circumstances and the apprehension of bias, and that prior association is not enough. His Honour continued (at 222): Prior professional relationships between adjudicator and litigant have been considered on a number of occasions. The very system of judicial appointment from the senior ranks of the profession means that such prior associations are inevitable. The courts have tended to be somewhat robust in their approach to them. 77 After reviewing the authorities, his Honour concluded that the informed observer could be assumed to have the general knowledge that when barristers act for a client they do so in a professional capacity and could as easily have been briefed to fulfil the same task for the opposite side, that in accepting a brief the barrister does not become part of or identified with the client and has no financial interest in the outcome, and that the barrister acts as a member of an independent Bar bound by a professional code of ethics. 78 Gascor t/as Gas & Fuel v Ellicott, Esso Australia Resource Ltd & BHP Petroleum (NW Shelf) Pty Ltd [1997] 1 VR 332, involved an arbitration between the sellers and a buyer of offshore natural gas, which required the determination of complex technical issues concerning the cost of production, the value of the gas produced, the place of production and the methods applicable to determine the tax. One of the buyer's complaints about the arbitrator was that he had previously acted as leading counsel for the producers in another complex arbitration ("the AGL Arbitration") concerning the price of onshore natural gas, and had cross-examined at length expert witnesses who would be called to give evidence for the buyer on issues similar to those arising in the present arbitration and had criticised them in his submissions. The Victorian Court of Appeal dismissed an appeal from a judge's decision refusing to order the arbitrator's removal, holding that the relevant observer was to be fastened with sufficient knowledge of the facts giving rise to the case and the basis on which the bias is alleged to enable a rational and reasonable - not just a perfunctory or superficial - view to be formed, and there was no evidence that the arbitrator, in cross-examining expert witnesses as counsel and making submissions on their evidence, had gone beyond the proper role of counsel representing his client to the utmost of his ability. Ormiston JA said (at 352-3): Notwithstanding that criticisms are expressed on behalf of his client of the witnesses' evidence which may well have been reflected in those cross-examinations, I would not, having examined those submissions with care, reach the conclusion that Mr. Ellicott went beyond the role of counsel in cross-examination or did other in the course of those submissions than give strong expression to submissions which he felt entitled and professionally obliged to make based on the evidence given in that arbitration. 79 This bespeaks recognition that in making submissions, counsel is not to be taken as doing more than properly advancing the case of the client, and that forthright but proper advocacy of a position by counsel does not give rise to a reasonable apprehension that upon appointment to the bench that counsel will not be able impartially to determine the same issue.

[116]

80 In Kartinyeri v Commonwealth of Australia (1998) 156 ALR 300, Callinan J followed Re Polites in concluding that he should not disqualify himself from hearing a case concerning the constitutional validity of an Act on the validity of which he had previously provided an opinion to the Senate Legal & Constitutional Affairs Committee. 81 Mr Merkel QC referred me to the decision of Hasluck J in S&R Investments Pty Ltd v Minister for Planning [2001] WASC 255, in which the judge acceded to an application that he disqualify himself from hearing a land acquisition compensation claim, where the settlement of an earlier claim in which the judge had been counsel was an important comparable transaction, and in which evidence from witnesses associated with that earlier claim would be adduced to draw attention to various factors distinguishing it from the instant claim. His Honour did so on the basis, not that he had had sufficient connection with an affected landowner to result in the possibility that he might not bring an impartial and unprejudiced mind to the question of valuation of land owned by another affected landowner, but because he may have been privy to independently acquired information relevant to the issues to be determined between the parties to the action. His Honour said: [53] Counsel for the defendant was unable to identify any specific indication in the evidentiary materials before the Court that special or extraneous information might have been conveyed to me as a legal adviser to Burundi. If anything, the indications are to the contrary in that, as I have already observed, it seems that the arrangements between the parties were very close to a final agreement when the matter was brought to my attention, save for an outstanding issue concerning the size of the solatium. There are no indications that as a legal adviser to Burundi I contended for any proposition of law that proved to be decisive and might be thought to have a continuing influence upon my attitude to compensation claims of the kind presently before the Court. [54] It was for this reason, it seems, that counsel for the defendant emphasised the principle underlined by the High Court in Johnson's case that justice must not only be done, but be seen to be done. Rules of professional privilege would preclude disclosure of any special or extraneous information that might have come to the attention of the trial Judge in his former role as legal adviser. This means that a fair-minded lay observer might continue to harbour a doubt as to whether the trial Judge's decision was based simply upon the evidence brought before him in open court. [55] I found it somewhat unsatisfactory that counsel for the defendant was unable to single out any hint of extraneous information in the evidentiary materials before me or to present persuasive examples of the kind of information that might lead a fair-minded observer to conclude that the impartiality of the Judge might be affected by his previous knowledge. Nonetheless, speaking hypothetically, one can certainly envisage circumstances in which a settlement was arrived at as a consequence of various commercial considerations which were not necessarily related to the legal advice given. This would mean, in the hypothetical case I have posited, that a fair-minded observer might conclude that the trial Judge regarded the transaction relied upon as a comparable sale with a sceptical eye. [56] Accordingly, I have come to the conclusion that I should disqualify myself upon this ground. In doing so, I am conscious, having regard to the precepts reflected in the decided cases, that a trial Judge should not too readily accede to an application for disqualification. However, in the circumstances of this case, I consider that the need for public confidence in the administration of justice is better served if arrangements are made for the trial to be conducted by a Judge without any prior connection to a transaction that may prove to be decisive in determining what value should be attributed to the subject land. 82 His Honour continued that his decision was reinforced by the circumstance that a fair-minded lay observer might conclude that where various witnesses associated with Burundi and its claim were likely to be called, the judge might give weight to the views expressed by those witnesses because he was associated with them previously and might be inclined to support the fairness and appropriateness of the settlement previously arrived at. 83 A1 v King QC (FCA, Merkel J, 31 May 1996, BC 9602233) illustrates the importance, when considering an allegation of apprehended prejudgment, of precise identification of the issue said to have been prejudged, and the lay observer's assumed knowledge of a judge's ability to consider an issue afresh, aided by evidence and argument. The judge was asked to disqualify himself from hearing a case on the ground that he had given advice to one of the parties on a question which arose in the instant proceeding. The application was put on the basis that as the judge had given advice on a question of law to one of the parties, he ought not hear and determine a proceeding involving that party in which the same question of law was to be considered. Having identified the test as whether it had been "firmly established" that by reason of the advice previously given the parties or the public might entertain a reasonable apprehension that he would not bring an impartial and unprejudiced mind to resolution of the questions involved in the present proceeding, his Honour concluded that, although there was a common feature to the matter in which his advice was sought and the instant matter, that did not necessarily transform the question of law to be determined into the same or a common question of law, as there had been potentially relevant amendments to the relevant legislation, and further decided cases, since the advice had been given. His Honour said: Accordingly, the question of law in the present case is not the same as the question of law considered in the Advice. As was stated in the Advice the issue related to whether the notices of referral the subject of the advice complied with s 13(2) and s 14(2) of the NCA Act . The issue in the present case is whether the quite different notices served on the applicants complied with s 13(2) and s 14(2). The Advice given proffers legal views on the operation of the NCA Act and s 13(2) and s 14(2) on the state of law and the Act as at 1990. The question of law in the present case concerns the operation of the NCA Act and s 13(2) and s 14(2) on the state of the law and the Act as at 1995 or 1996. … First, as the legal issue the subject of the Advice is not the same issue arising for determination in this proceeding the issue of prejudgment as such does not arise. No advice was given on the validity of the notices the subject of the present proceeding or on notices in the same or substantially the same form. Advice was given in respect of a different form of notice but which has the common omission I referred to above. Changes to the NCA Act , recent decisions, the evidence to be adduced and the fact of opposing and detailed submissions by the parties, both in writing and orally, provide a quite different context and setting for the consideration of the questions arising for determination in the present proceeding. 84 His Honour continued that even if a question of law arising for determination was the same question as that the subject of the advice, a reasonable observer would apprehend that the legal question considered in 1990 would be fairly and impartially considered afresh in the light of the submissions and the evidence in the proceeding. The advice given in 1990 was not an issue in the present proceeding, but totally irrelevant, it not being suggested that his Honour had any personal or other interest in maintaining the correctness or otherwise of the advice.

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86 As to the submission that a reasonable bystander might think that I had prejudged the iniquity issue, in Cannar the issue was not whether or not the documents in question were deprived of privilege or confidentiality by iniquity, but whether the use that had been made of documents which had been held (by the Victorian Court of Appeal) to be privileged rendered the proceedings an abuse of process. That is a different issue from whether or not the documents were disentitled to privilege or confidentiality by reason of iniquity. BATAS' case in Cannar, as stated in the submissions that I settled, commenced from the proposition that the Victorian Court of Appeal had held that the documents were privileged, and had made orders to endeavour to remedy the consequences of what it held to be the erroneous first instance decision that there had been a waiver, and which upheld the claim for privilege. There is nothing in the submissions that I settled, nor in the judgment of Bell J, to suggest that the iniquity issue was raised in the Cannar proceedings, or that I was called upon to consider, advise on, or advocate a position in respect of it. Just because iniquity may be a reason for overriding a claim of privilege or confidentiality does not mean that it is necessarily considered or addressed when such a claim is advanced, particularly when a Court of Appeal had already upheld the claim for privilege. I do not accept that the iniquity issue was a live one in Cannar. 87 Iniquity does not appear to have been raised in McCabe: Eames J's first instance decision to admit the documents despite the claim for privilege was founded not on iniquity but on waiver, and the Victorian Court of Appeal's decision was that his Honour had erred in finding waiver. 88 In the present proceedings, the iniquity issue would arise in a different evidentiary context, illuminated by arguments that were not raised or addressed in Cannar. Accordingly, I do not accept that there is a substantial overlap between the issue in respect of which I was engaged in Cannar and what will be apparently the main issue in these proceedings, namely, iniquity - or, as was submitted for Slater & Gordon, that "there is simply no difference in the substantive privilege issues arising in this proceeding and the substantive privilege issues arising in Cannar and the substantive issues that arose in McCabe". In McCabe, the privilege issue was one of waiver, not iniquity. In Cannar, there was no substantive privilege issue; the issue being whether BATAS' apparently already established claims for privilege and confidentiality were a ground on which it might be permitted to intervene, and whether the use made of BATAS' documents in respect of which that privilege and confidence was asserted, to procure the issue of the letter of request and the order for examination, rendered the proceedings an abuse of process. There was just no live issue about whether the documents were entitled to privilege or not, that issue having apparently been resolved by the Victorian Court of Appeal. 89 It follows that I do not accept that there could be a reasonable apprehension that I might have prejudged the iniquity issue. In my judgment, the case is similar to but a fortiori the decision in A1 v King, since in that case there was a common defect in the notice the subject of the advice and the notice the subject of the proceedings, whereas in this case iniquity just did not arise in Cannar. The pre-disposition point 90 The submission that a reasonable bystander might think that, having advocated for BATAS the cause which I would now be called upon to judge, I might be predisposed to find for BATAS, particularly when it would be argued that BATAS' cause (and thus the cause that I advocated) was an improper one, on account of a natural disinclination to find that a cause in which one had been engaged involved iniquity, involves two elements. 91 Insofar as it was put that I was engaged as counsel to achieve the very same purpose now sought to be achieved in these proceedings before me now, no longer as counsel but as judge, that is no more than a submission that having once advocated a cause, counsel on becoming a judge is disqualified from deciding it. Such a proposition would assume that having made submissions on an issue as counsel, a judge, after hearing evidence and argument, would be unable to determine impartially the issue that those submissions addressed. Thellusson v Lord Rendlesham, Gascor and A1 v King show that proposition to be incorrect; although the last of those cases concerned advice and not advocacy, as I have explained there is even less reason to apprehend prejudgment in the case of advocacy as distinct from advice, because adoption of a personal position by counsel is implicit in advice but not in advocacy, and the lay observer is to be taken to understand that. 92 Nonetheless, there is force in the submission that the reasonable bystander might think that, having advocated BATAS' cause in that case through the written submissions, I was (even if unwittingly) involved in what Slater & Gordon propose to contend was an iniquitous course of conduct involving the suppression of relevant evidence for the purpose of perpetuating a miscarriage of justice, and I might be naturally predisposed on that account against finding iniquity, since it might be embarrassing to conclude that the cause which one was advocating was, knowingly or not, an iniquitous one. In that sense, it could be said that I have an interest in the determination of the iniquity issue. 93 Although this does not fall precisely within the circumstances in which it was said in Polites that a judge should not sit - namely that a former legal advisor should not sit as a judge in a case if the advice went beyond an exposition of law and advised an adoption of a course of conduct to advance the client's interests, the efficacy, wisdom reasonableness or appropriateness of which would be in issue - because I am far from satisfied that what happened in Cannar will be a relevant issue in the present proceedings - nonetheless some might reasonably think that I had been sufficiently connected with an endeavour to preserve the confidentiality of the document management policy that it would be difficult for me - or at least, more difficult for me than it might be for others who had been not so involved - to conclude that the document management policy, or maintenance of confidentiality in respect of it, involved iniquity. 94 It is to be borne in mind that the test is a relatively undemanding "double might" one, requiring only that the reasonable lay observer might think that the judge might not bring an impartial mind to the matter and decide the case other than on its legal and factual merits (although this requires a real and not remote danger that the judge would do so [Locabail (UK) Ltd v Bayfield Properties Limited [2000] 2 WLR 870, 883 (CA)]. I have come to the conclusion that in this case a reasonable bystander might think that there was a real danger that I might be influenced, even unintentionally, by a natural inclination to avoid a conclusion that a cause with which I had been professionally associated, however briefly, was an iniquitous one, and that I should therefore not sit on a proceeding which would require me to consider the iniquity issue. The extraneous material point 95 I am reinforced in that conclusion by the circumstance that, despite my assertions that I have no recollection of what comprised the 800 or so odd pages in my brief from Corrs, a lay observer might reasonably wonder whether I had been privy to special or extraneous material, which because it is protected by legal professional privilege cannot be known to the other parties, by which attitudes to the document management policy might consciously or subconsciously have been shaped or influenced, even if I did not now recall the detail. Although the observer is to be taken to know that judges are frequently expected to ignore inadmissible material of which they may gain knowledge, nonetheless a fair-minded lay observer might entertain a doubt as to whether my approach to and decision on the iniquity issue would be based only upon the evidence in open court, where I had apparently had access to a substantial amount of material in respect of which a claim for privilege was maintained, the detail of which could be known only to BATAS and not to Slater & Gordon, which circumstance might be perceived to advantage BATAS. Does apprehended bias disqualify from interlocutory applications? 96 Accordingly, I have concluded that, objection having been taken, I should not sit on a proceeding in this matter in which the iniquity issue would require consideration. However, that does not mean that I am disqualified from all interlocutory aspects of the case. 97 As Mr Smith SC submitted, the question of apprehended bias must be considered in the context of the issues that the court has to decide. Thus, for example, in Livesey v NSW Bar Association (1983) 151 CLR 288, the test derived from the authorities was said to be that a judge should not 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 or unprejudiced mind to the resolution of the question involved in it [Re JRL, 349 (Gibbs CJ), 351 (Mason J)]. And in Aussie Airlines, where what was involved was the hearing of two preliminary questions, the judge identified the issue on the disqualification application as being whether the parties or the public might entertain a reasonable apprehension that as the trial judge he might not bring an impartial and unprejudiced mind to the resolution of the questions before him in the present case. These cases show that the question of apprehension of bias is inextricably interwoven with identification of the issues that the judge is called upon to decide. Accordingly, attention needs to be focussed separately on (1) the issues that may arise on the final hearing of the matter; (2) the issues that arose in the proceedings on 29 November 2006; and (3) the issues on the transfer application set down for hearing before me on 26 February 2007.

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The final hearing 98 At present, although the pleadings have not yet been completed so as to distil the issues, it seems likely that the iniquity issue will be the major issue on the final hearing. As the final hearing has not been set down before me, insofar as it relates to the final hearing, the application for my disqualification from it is premature, and it is unnecessary and inappropriate that I formally disqualify myself at this stage from a hearing that has not yet been and probably never will be allocated to me. But I will indicate that, assuming that the iniquity issue will be raised, I would not sit on the final hearing. The proceedings on 29 November 2006 99 However, as I have explained, it does not follow that I am disqualified from hearing every interlocutory aspect of the case, because the question of apprehension of bias is irretrievably linked to the issues for decision. While I do not suggest that the general principle is any different when it comes to interlocutory applications, it is necessary to identify what issues arise for resolution on an interlocutory application before deciding whether there is a reasonable apprehension that the judge will not decide those issues on their merits so as to be disqualified from determining that application. In this case, I have found that there is such an apprehension so far as the "iniquity issue" is concerned. I am prepared to accept that it would be inappropriate for me to hear a contested interlocutory application in which it was necessary to make findings, even on an interlocutory basis, about the "iniquity issue". However, in the Slater & Gordon proceedings, no occasion for me to do so has yet arisen. 100 As Mr Merkel QC made clear, the focus and purpose of the present application is ultimately to obtain the discharge of the injunction made on 29 November. It is therefore necessary to understand just what was in issue on that date. Both parties came to court with competing sets of short minutes. It will be remembered that on 23 November, when Slater & Gordon were first before the court, Mr Rush QC on their behalf offered to submit to the injunctive relief sought in the summons until Wednesday 29 November; I was not required to decide any issue in that respect. On 29 November, the parties presented competing short minutes, and on the question of the interim injunctive regime, it was common ground that there should be an injunction until further order restraining Slater & Gordon from publishing, disseminating or using the relevant information, except for the purpose of defending the proceedings; the only dispute was whether there should be an additional exception to permit use of the relevant information the subject of one proceeding for the defence of the other proceeding, and/or to bring a cross claim. That issue fell for decision in the context that it was common ground that there would be an interlocutory injunction. Its resolution depended on the effect of cases such as Calcraft v Guest, and the legal consequences of documents for which privilege or confidence was claimed being used in other proceedings. The issue for decision was a narrow one, as to the scope of the "carve out"; it involved no aspect of the iniquity issue. 101 The present application, having as its fundamental purpose the discharge of the interlocutory injunction of 29 November, rather overlooks that the injunction was originally offered on behalf of Slater & Gordon by Mr Rush QC on 23 November pending an adjournment, and that the dispute on 29 November was not as to whether there should be an injunction, but a very limited dispute as to the scope of the "carve out". Attempts were made to marginalise the significance of the position adopted on behalf of Slater & Gordon on 23 and 29 November. But I am unable to accept that - as it was put - Slater & Gordon had not "the faintest idea that they were being heard on any substantive issue on 29 November". On 23 November they were represented by Mr Rush QC, who as I have said has a lengthy history in the proceedings, and consented to an injunction until 29 November; on 29 November, having determined to make a transfer application, they proposed short minutes consenting to an interlocutory injunction, and debated only the extent of the "carve out" from the prohibition on use of the information. The injunctions pronounced on 29 November 2006, which Slater & Gordon submit should never have been granted, were, with the exception of the extent of the "carve out", granted in accordance with the proposals of all parties, including Slater & Gordon. It cannot be overlooked that the short minutes proposed by Slater & Gordon proposed such an injunction.

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104 Once the reference on 23 November to "a whole lot" of previous disclosures about relationships with various parties had been made, if Slater & Gordon thought that any relationship I might have had with any party was potentially material for the purposes of the applications then before the Court, the time to seek further information was then. It seems to me that the absence of further inquiry at that point illustrates that the issues with which I was then dealing were of a such limited scope that, whatever might be the position on the major ultimate issues in the case, any past associations with any party were not seen as potentially material for then present interlocutory purposes. I do not suggest that this involved a waiver forever of any objection on the basis of those past associations, but it confirms my view that neither the parties nor the public would have apprehended that any past association I might have had with any party might influence my decision on the limited issues then before the Court. The transfer application 105 There remains for consideration the one matter that is set down for hearing before me, namely the transfer motion on 26 February 2007. 106 On the transfer motion, the essential issue is which court - the Supreme Court of Victoria or the Supreme Court of New South Wales - is the more appropriate forum for hearing the present proceedings. The hearing of the transfer motion will not require resolution on an interlocutory basis or otherwise of the iniquity issue. Assuming, as I have explained, that some might not unreasonably think that I would prefer the iniquity issue to be resolved one way rather than the other, the only "logical" theory that could be advanced for a view that I might not decide the transfer application on its merits is that I might think that the iniquity issue would more likely be resolved favourably to BATAS in New South Wales than in Victoria. There is simply no basis for any such supposition, all the moreso as I have absolutely no way of knowing what judge or judges in New South Wales and Victoria might ultimately be called on to decide that issue. Such a suggestion would be fanciful, not reasonable; and I hasten to add that it was not one advanced by Mr Merkel QC. 107 Accordingly, any apprehension that I might not decide which was the more appropriate or convenient forum on the merits, because of my previous brief from BATAS, would be fanciful, not reasonable, and I do not consider that I am disqualified by apprehended bias from hearing the transfer application, if it is to proceed, on 26 February 2007. The allegation of material non-disclosure 108 Slater & Gordon also contended that the orders of 29 November should be set aside on the further basis that there had been material non-disclosures, at least by BATAS, of my prior involvement. They submitted that it was incumbent on BATAS to make a full disclosure of my prior involvement, and pointed in particular to Corrs' response to a request for details of the disclosure I had made about Mr Clarke of Clayton Utz, in which response Corrs referred only to what I had said about Mr Clarke, and not to my disclosure of having previously acted for BATAS. 109 On 23 November, having mentioned that I had made a number of disclosures of relationships with parties in the proceedings, I referred to my connection with a Slater & Gordon partner, who was then instructing, and mentioned my earlier disclosure about a Clayton Utz partner. On 1 December, Mr Stoljar raised the disclosure I had made about my connection with the Clayton Utz partner, and said that Slater & Gordon reserved their rights in that respect. By a facsimile sent on 1 December at 6:25 pm, Arnold Bloch Leibler sought from the solicitors for BATAS and the solicitors for BATAL details of my disclosure about the Clayton Utz partner, and requested a copy of the transcripts in the Fairfax proceedings in which I had made the disclosure; the request did not refer to my other disclosures. On Monday morning 4 December at 8:29 am, Corrs on behalf of BATAS responded to the request, and provided the transcript that had been requested. When the disqualification application was before the court on 7 December, Corrs produced the written submissions from Cannar, in response to a notice to produce which had been served only on or about 6 December, and provided at the earliest reasonable opportunity additional information to supplement the disclosure that I had made in writing.