Commonwealth of Australia v Davis Samuel Pty Ltd & Ors [2008] ACTSC 59

3. My attention was also drawn to the decision of Foster AJ in Australian Securities and Investment Commission v Forge [2002] NSWSC 760, where I note that Mr Allan Endresz appeared for a number of the defendants who were, in some cases, identical to the defendants in these proceedings, although I do not have access to his Honour's reasons for making that order. Of course, Mr Endresz does not need leave to appear for himself, which he also does.

4. During the last two days Mr M Slattery QC who appears with Mr J Hogan-Doran for the plaintiff, has opened for the plaintiff in detailed submissions based on volumes of written submissions which clearly set out the case which the plaintiff seeks to make on the evidence it will later seek to adduce. As I have had occasion to observe, such submissions are not evidence and, unless the evidence supports the submissions and proves them to the requisite standard, namely on the balance of probabilities, they are mere allegations on which I could not base a decision to order that any verdict in the proceedings could be made.

5. Mr Endresz and Mr Peter Cain, who appears for himself, and who appears for certain incorporated defendants, raised with me during the course of Mr Slattery's submissions that some of the allegations amounted to an allegation that Mr Endresz and Mr Cain had committed criminal acts.

6. They pointed to the fact that proceedings against them for criminal conduct brought by the Commonwealth Director of Public Prosecutions had been dismissed by Higgins CJ on 11 September 2003 in proceedings number SCC 16 and 17 of 2002. As I pointed out at the time, these are civil proceedings and there is no bar to them arising from his Honour's dismissal of those proceedings.

7. The parties are different and the standard of proof is different. The evidence led in the criminal proceedings may also have been quite different; indeed Mr Slattery QC suggested that he was relying on different, additional evidence in this case. Although I have been provided with a transcript of the criminal proceedings, I have not had the opportunity to analyse them fully. I am satisfied, however, that the dismissal of the criminal proceedings is no bar to the proceedings against Messrs Endresz and Cain unless something to which my attention has not yet been drawn is relied upon by them.

8. Later yesterday Mr Endresz made an application on behalf of his mother and father and himself that I should disqualify myself from continuing to hear these proceedings. Mr Allan Endresz prefaced the application by seeking information from me about the relationship between the Commonwealth Director of Public Prosecutions and the ACT Director of Public Prosecutions, the latter a position I held for nearly 10 years prior to my appointment to this Bench.

9. Although, perhaps, it is unusual for a judge to respond to questions of this kind I note that Mr Endresz is not qualified as a legal practitioner and is, in effect, a litigant in person, despite the leave I have given him to appear on behalf of certain other persons.

10. I explained that, although there was a formal agreement between the Commonwealth Director on the one hand and state and territory Directors on the other hand whereby the Commonwealth could prosecute state or territory offences when appropriately ancillary to Commonwealth offences over which the Commonwealth Director had statutory authority to prosecute and, vice versa, the state or territory directors could prosecute Commonwealth offences when ancillary to state offences they were prosecuting, there was no formal relationship between the Directors. Indeed, they each had statutory independence which was jealously guarded. I did point out, however, that the Directors in Australia met once or twice each year to discuss matters of common interest, which related principally to systemic issues and were not generally directed to specific cases.

11. I confirmed that, to the best of my knowledge, the prosecution of Mr David Muir had never been discussed with me and the ACT Office of the Director of Public Prosecutions while I occupied the Directorship and I had never been involved in the prosecution. To the best of my recollection, I was never aware that either Mr Endresz or Mr Cain had been prosecuted and again to the best of my knowledge and recollection, the ACT Office had never been involved in those proceedings.

12. Nevertheless, Mr Endresz indicated that he was concerned that, as a former prosecutor, I may be influenced by the consideration of the criminal offences relied upon the plaintiff (although, of course, there could be no conviction for such offences in these proceedings) and that might give rise to a reasonable apprehension of bias having regard to my previous role. Mr Slattery QC opposed the application.

13. It is, of course, a fundamental rule of justice that proceedings be conducted before an impartial tribunal. In this Territory, this has added force by virtue of s 21 of the Human Rights Act 2004, which states in subs (1): "Everyone has the right to have criminal charges and rights and obligations recognised by law, decided by a competent independent and impartial court or tribunal after a fair and public hearing".

14. This has been interpreted to apply to civil trials also: see Capital Property Projects ACT Pty Ltd v Australian Capital Territory Planning and Land Authority [2008] ACTCA 9 at [38].

15. Applications for bias such as this need not be based on an allegation that the judge is actually biased. The court need only be satisfied that:

A fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of a question the judge is required to decide: Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 ("Ebner") at 344 per Gleeson CJ, McHugh J, Gummow and Hayne JJ_._

16. The Ebner test reflects the importance of maintaining public confidence in the administration of justice and its capacity to ensure that cases are decided impartially. As Barwick CJ and Gibbs, Stephen and Mason JJ explained in the earlier case of R v Watson, Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 264:

It is of fundamental importance that the public should have confidence in the administration of justice. If fair minded people reasonably apprehend or suspect that the tribunal has prejudged the case they cannot have confidence in the decision. To repeat the words of Lord Denning, MR ... "Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: `the judge was biased'".

17. In Ebner, their Honours went on to say at 345:

The apprehension of bias principle admits the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that the 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.

18. It perhaps needs to be said that, although most recently I occupied the position of Director of Public Prosecutions for nearly 10 years, before that I was in private practice and had a reasonably large criminal practice acting for defendants as well as a substantial civil litigation practice for over 23 years.

19. It is important to note also that the High Court in Ebner also pointed out that the question, while one of possibility as to bias, must show a "real and not remote" possibility.

20. The precise nature of the allegation by Mr Endresz is not quite clear. I assume, for example, that he makes no suggestion of a pecuniary interest that I have in these proceedings, similarly there is no allegation of, for example, improper communications or that I have been involved in the process of investigating, charging and prosecuting in this case.

21. The best that can apparently be said is that I may have made a pre-judgment or perhaps an improper relationship. As to the latter, that could only arise from any suggestion that I had, while ACT Director of Public Prosecutions, a relationship with the Commonwealth Director of Public Prosecutions that was improper in this case. That has not been precisely articulated and it is, therefore, difficult to respond to it.

22. The first thing to be said, however, is that the Commonwealth Director of Public Prosecutions has no part to play in these proceedings and, as I have noted above, I have never to the best of my recollection (and I have obviously taken the time overnight to search my memory as best I can) discussed the matter of Mr Endresz and Mr Cain with any of the three Commonwealth Directors of Public Prosecutions who were in that office during the time I occupied the ACT Directorship. Indeed I do not recollect ever having seen Mr Endresz' nor indeed Mr Cain's or Mr Forge's names prior to my involvement in these proceedings.

23. Applying the test set out by the High Court, it is difficult to see what might be said to lead me to decide this case other than on its legal and factual merits arising from that relationship. Indeed, in my view, a fair-minded lay observer would not consider that this relationship would interfere with ability fairly and impartially to decide this matter on its factual and legal merits.

24. In this context, I pause to observe that the test of the fair minded lay observer was described in Webb v R [1994] HCA 30; (1994) 181 CLR 41 by Mason CJ and McHugh J at 51-2 in the following way:

References to the reasonable apprehension of the "lay observer", the "fair-minded observer", the "fair-minded, informed lay observer", "fair-minded people", the "reasonable or fair-minded observer", the "parties or the public" and the "reasonable person" bound in the decisions of this Court and other courts in this country. They indicate that it is the court's view of the public's view, not the court's own view, which is determinative. If public confidence in the administration of justice is to be maintained the approach that is to be taken by fair-minded and informed members of the public cannot be ignored. Indeed, as Toohey J pointed out in Vakauta in considering whether an allegation of bias on the part of a judge has been made out; the public perception of the judiciary is not advanced by attributing to a fair-minded member of the public a knowledge of the law and the judicial process which ordinary experience suggests is not the case. That does not mean that the trial judge's opinions and findings are irrelevant. The fair-minded and informed observer would place great weight on the judge's view of the facts. Indeed, in many cases the fair minded observer would be bound to evaluate the incident in terms of the judge's findings. (Footnotes omitted).

25. I note that, in Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 87, the court was at pains to point out that the fair-minded lay observer knows all the relevant objective facts and circumstances, for example, a relationship which exists between the decision maker and a party or which was present during the decision maker's deliberations. I infer from this that the relationship between the Commonwealth Director and the ACT Director would be something that the fair-minded lay observer would also know.

26. In my view, a fair-minded lay observer in these circumstances would not consider that the relationship that applies between the Commonwealth Director of Public Prosecutions and the ACT Director would interfere with my ability fairly and impartially to decide this matter on its factual and legal merits.

27. The only other issue is prejudgment. In approaching this, I note what was said my Mason J, as his Honour then was, in Re JRL, Ex parte CJL, [1986] HCA 39; (1986) 161 CLR 342 at 35_2_. His Honour said:

It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of the judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind disqualification is only made out by saying that there is a reasonable apprehension of bias by reason of pre-judgment and this must be "firmly established".

28. His Honour then made some references to earlier High Court decisions and I do not quote them. His Honour then continued:

Although it is important that justice must be seen to be done it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge they will have their case tried by someone who ought to be more likely to decide their case in their favour.

29. I have no reason to believe that Mr Endresz is seeking to "judge shop" but nevertheless I must balance any perception by Mr Endresz that my prior experience will disadvantage him with the obligation to discharge my duty to deal with this case. In my view, Mr Endresz has not shown how my prior position of ACT Director of Public Prosecutions is logically connected with the requirement for me to decide the case on its legal and factual merits.

30. Indeed, one of the major tasks of prosecutors is to assess evidence and to ensure the prosecutions which are supported by insufficient evidence, notwithstanding that they may be promoted by police and other investigators, are not conducted where the evidence does not point to a reasonable likelihood of a conviction. As Director I discontinued a very large number of cases which fell into that category.

31. Accordingly, I do not consider that the test of the view of the fair-minded lay observer, the test required by the High Court and which I do apply to this application, has been met and accordingly the application is dismissed.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Counsel for the plaintiff: Mr M Slattery QC and Mr J Hogan-Doran

Solicitor for the plaintiff: Australian Government Solicitor

Counsel for the 27th Defendant Mr N Hutley QC and Mr J Giles

Solicitors for the 27th Defendant Snedden Hall & Gallop