Step 2 - the logical connection
53 Whilst John Holland made much about the identification of the matter, it said little to articulate the logical connection between the matter and the feared deviation. A number of decisions were relied upon by John Holland including R v Carlstrom (1977) VR 366; R v Wise [2000] 2 VR 287; R v Tait and Bartley (1979) 24 ALR 473; Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited & Ors (1985) 162 CLR 24; Teakale v WA (2007) 33 WAR 188 and Re JRL: Ex parte CJL (1986) 161 CLR 342. Those cases relate to the use by a judge, for sentencing purposes or for the determination of substantive issues at trial, of information received through a private communication and utilised, or capable of being utilised, to determine substantive matters at trial. The facts of those cases make out a logical connection between the matter and the feared deviation from the course of the judge deciding the substantive matters on their merits. On the facts of this case however, the logical connection between the matter and the feared deviation is not readily apparent.
54 Unlike all of the cases upon which John Holland relied, the content of the information communicated to the judge is not here identified. Rather, it is contended that something must have been said and that something must have been of substance. What issue or issues for determination at trial, the information is said to have related to is not suggested. It is, in those circumstances, difficult to identify any logical connection between the matter and the feared deviation.
55 In the letter of 14 February 2011 from John Holland's solicitors to the solicitors for Comcare, Mr Branagan was accused of apprising the Court of the applications his client sought to make at the directions hearing requested and the reasons for seeking to do so. It was alleged that for the Court to have agreed to the mention hearing, Mr Branagan, in his communication with my associate, must have done that. In his letter of response dated 15 February 2011, Mr Branagan specifically denied that allegation. He said:
I specifically did not disclose the purpose of the directions nor did I specify making any application, refer to any issues in dispute or the reason for listing other than to say that there were some outstanding issues that would require directions prior to the trial.
56 Despite John Holland declining to test that evidence, John Holland says that evidence would not be accepted by the reasonable observer because the reasonable observer would understand that the judge would not have listed the matter for a hearing unless a matter of substance had been raised. That, is said to follow from the fact that, some eight months earlier on 26 May 2010 in a scheduling conference convened by me with the parties and their representatives, the judge "had made it clear to the parties that he would only compel the parties to attend a further directions hearing if there was a real matter of substance to be dealt with". When what was actually said is examined, it is likely that the reasonable observer would regard John Holland's characterisation of what was said as taken out of context and somewhat overstated. At the end of the scheduling conference there was a discussion as to the directions to be made for the filing and exchange of material and other matters. A question arose as to whether a directions hearing should be convened between the final step contemplated and the trial. A fair reading of the transcript shows that I indicated my reluctance to automatically list a further directions hearing when that may not be required. In that context it was indicated that if there was a need for a directions hearing, and a need to deal with something of substance, my chambers could be approached.
57 In any event, even if something was said "of substance" sufficient to motivate me to convene a mention, it does not follow that anything was said which in any way advanced the interest of Comcare in whatever was to be dealt with at the mention, let alone advanced those interests in relation to the issues to be determined at trial in a manner which provides a logical connection to the feared deviation.
58 The reasonable observer would understand that it may take very little to convince a judge about to hear a 14 day trial to list a matter for mention. The bare suggestion of a difficulty between the parties in relation to a forthcoming 14 day trial is likely to cause a docket judge concerned with the orderly and efficient operation of the Court and an imminent trial to be desirous of hearing from the parties in order to understand and, if appropriate, resolve an actual or potential difficulty. Case management objectives and duties of the kind set out in ss 37M, 37N and 37P of the Federal Court of Australia Act 1976 (Cth) would be assumed by the reasonable observer to be matters which a docket judge would take seriously. The overarching purpose of those provisions as set out in s 37M(2) includes:
(a) the just determination of all proceedings before the Court;
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court's overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
59 Even if it were to be assumed that something seriously counter to the interests of John Holland was said to my associate and further assumed that it was conveyed to me, why would the reasonable observer consider that I might rely upon it in determining any substantive issue before me? As the High Court said in Johnson v Johnson at [12] two things must be remembered. Not only is the observer taken to be reasonable, but the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the relevant, the immaterial and the prejudicial'.
60 It was the failure of the primary judge to appreciate that the reasonable observer understands the capacity of a judge to disregard irrelevant or prejudicial material which led to the error identified by the Full Court in GFC Superannuation Fund at [65]-[66] (and see further Brooks v The Upjohn Company (1998) 85 FCR 469 at 479). I should add in this regard that judges are regularly provided with affidavits in support of motions which advocate the grounds in support of the relief sought. Often that material is seen by the judge prior to it being read in open court and prior even to it having been served. That occurs including for the purpose of determining when the application should be listed and whether it should be listed for directions or for hearing. It has never been suggested, to my knowledge that by reason those circumstances a judge might be perceived to have deviated from the judicial task required.
61 A conclusion that a reasonable observer would not apprehend bias is able to be reached even if it were accepted that the contacts made by Mr Branagan with my associate were to be regarded by the reasonable observer as inappropriate because of their ex parte nature. However, that allegation is not sustainable when the evidence and the case law are examined. On Mr Branagan's account, contact with my associate was made twice, on 11 and 14 February 2011. The communication of 11 February 2011 was made without the knowledge of John Holland's solicitors. By email of 12.36 pm on that day, John Holland's solicitors were advised that the associate had been contacted in relation to a listing for the following week. On the available evidence sourced from Mr Branagan's letter of 15 February 2011, Mr Branagan asked my associate to nominate available dates for a directions hearing in advance of the trial and was told to contact John Holland's solicitors as to a convenient date.
62 On the available evidence, the communications did "not include information or allegations which are material to the substantive issues in the litigation": R v Fisher at [39]. The communications occurred in the context of active case management in which private communications "about matters of a formal or procedural nature" might be expected: Gem at [31]. Maxwell P and Weinberg JA continued:
It would be absurd to infer apprehended bias simply on the basis that there had been a private communication between the associate (and therefore, the judge) and one party, without more.
(and see at [43]).
63 It may well have been preferable for the impugned communications to have occurred in writing copied to all parties. But the fact that they did not, would not, by reason of that alone, lead the reasonable observer to the conclusion that the conduct was inappropriate or at least sufficiently inappropriate to raise suspicions to the level upon which much of John Holland's contentions depend.
64 The reasonable observer would be fortified in that view by the lack of any initial complaint by John Holland of inappropriate conduct and the extent to which any later complaint was pursued. It is to be recalled that on the first conversation, the associate asked Mr Branagan to contact John Holland's solicitors and Mr Branagan did so by an email and letter forwarded at 12.36 pm on 11 February 2011 in which Mr Hartigan was told that Mr Branagan had spoken to my associate in relation to a hearing being convened. If that contact with the associate is to be characterised as a serious impropriety (as it is characterised in the submissions made to me), the reasonable observer might find it surprising that no immediate complaint about the conduct was made. A complaint was only first raised by John Holland's solicitors in their letter of 14 February 2011, which letter was attached to an email sent at 4.58 pm on that day indicating John Holland's counsel's availability for 23 February 2011. No complaint was made to the Court between 11 February 2011 and until this application was filed on 23 February 2011.
65 Those observations are relevant to what the reasonable observer would apprehend and in my view diminish the force of John Holland's contention that the reasonable observer would have regarded the conduct in question as seriously inappropriate.
66 I should add that I reject the contention made by John Holland that a number of other matters would have been regarded by the reasonable observer as raising suspicion that either I, or my associate, were particularly keen to bring on a mention because I had something in mind to pursue. John Holland pointed to Mr Branagan's correspondence of 16 February 2011 which itemised the matters that Comcare advised John Holland it proposed to seek directions from the Court about and the inclusion there of item numbered 6 "Any other matters the Court considers to be relevant". It is contended that the reasonable observer would apprehend from that comment that the judge had directions in mind which he sought to pursue and that Mr Branagan was so aware. The expression used in item 6 of Mr Branagan's letter is well familiar to court practice and is often used as a catch all phrase when a litigant identifies the orders or directions that it seeks from a court. There is no merit in this contention and no reasonable observer would come to the view for which John Holland contends.
67 All of the conclusions I have arrived at so far, have been made without resort to the Judge's Statement. I have not found it necessary to rely on the Judge's Statement to reach my ultimate decision to refuse to recuse myself. Although I consider that the reasonable observer would arrive at the same conclusion with or without reference to the Judge's Statement, I think that resort to it is appropriate. That Statement makes it clear that no communication capable of materially impacting on any substantive issue in the litigation was received by me. It also makes it clear that I was not aware of any communications made with my associate which occurred without the knowledge or consent of John Holland or its solicitors. Further, the statement identifies the facts that were before me when I determined that a mention should be convened, including that the issues for consideration at the mention were not identified to me and further that I was not aware of any opposition from John Holland for the matter to be listed for a mention. In having regard to those matters, I have paid careful attention to the observations earlier identified at [19] of Locabail. With those considerations in mind, I have accepted that there may be occasion for the reasonable observer to doubt the reliability of a judge's statement including by reference to "the nature of the fact of which ignorance is asserted, the source of the statement, the affect of any corroborative or contradictory statement, inherent probabilities and all the circumstances of the case in question".
68 John Holland contended that the Judge's Statement ought to be subjected to scepticism. No specific basis for that contention was given. Doing the best I can, I am unable to identify a basis for scepticism. The disclosure was made at the first available opportunity, that is, the first available opportunity once the allegation became known to me. As I have said, so far as the Statement deals with the facts and circumstances in which I was involved, there is no contradictory evidence before me and I see no reason as to why the reasonable observer would regard those facts and circumstances as inherently improbable in all the circumstances of the case.
69 Insofar as the Judge's Statement deals with matters in which my associate was involved, John Holland has referred to two matters of 'conflict' in which the accounts given by the associate and by Mr Branagan differ. The first is as to the date of the first conversation and whether it occurred on 10 or 11 February 2011. John Holland suggests that that adverts to the possibility of three not two conversations. However, both the accounts of my associate and Mr Branagan agree that there were only two conversations. In those circumstances I see no reason to suggest that the reasonable observer would infer three conversations rather than infer an error as to the date of the first conversation. However, if three conversations is the correct inference, John Holland did not say why or how the ultimate view of the reasonable observer would be affected and I can see nothing in such a distinction.
70 Further, Mr Branagan's account differs from that of the associate in that the associate says that Mr Branagan listed three matters by subject matter only as issues to be raised at the mention but Mr Branagan said no issues were identified. However, despite that difference, on neither account can it be said that information or allegations material to the substantive issues in the litigation were raised and in my view that is how the reasonable observer would perceive it.