Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd

My conclusions 16 In my opinion, the briefly and succinctly framed submissions of senior counsel for the applicant are correct. To the extent that I have been able to comprehend the import or significance of the submissions of counsel for the respondents, I have been unable to distil any viable basis for my disqualifying myself from further presiding in these proceedings. Obviously if both parties sought my removal, I would readily stand down forthwith from any further hearing of the proceedings, but so long as the applicant opposes any such course with apparent justification, it is clearly my duty as a judicial officer to continue to preside at the present hearing of the proceedings. As I read the authorities on the subject, what has stood in the way of many judges not disqualifying themselves in contentious circumstances has been their concern that an opposing party may thereby suffer some measure of prejudice or disadvantage unfairly in the context of the litigation for the time being prevailing.

Further authorities arising for consideration 17 Some further references to authorities, in chronological sequence of reporting, is in my opinion apposite, being authorities that tend to address circumstances beyond which the principles already cited may fall for consideration. The first dictum to which I would additionally refer is to be found in re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 at 352, where Mason J (as he then was) 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 a 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 showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be 'firmly established': Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 553-554; Watson (1976) 136 CLR, at p 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12, at p 14; 32 ALR 47, at pp 50-51). 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 thought to be more likely to decide the case in their favour.' 18 Further as to Vakauta, Dawson J said at 575 as follows: 'Preconceptions do not necessarily mean bias on the part of the judge who holds them. As was said by Charles J in R v London County Council; Ex parte Empire Theatre (1894) 71 LT 638 at 639, 'preconceived opinions - though it is unfortunate that a judge should have any - do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded'. And in this Court in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 161 CLR 342 at 372, a majority was of the opinion that when bias arising from preconceptions is in question, as distinguished from bias through interest, there must be strong grounds for finding its existence. A judge 'must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons.' In Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 at 372, I expressed the view that suspicion of bias may well be ineradicable where the bias is thought to result from preconceptions existing independently of the case. That is so, but it is not to say that bias is inevitably displayed merely because a judge holds preconceptions or reveals that he does. Unfortunate or not, it is virtually unavoidable that a judge, sitting in a jurisdiction such as that in which the trial judge was sitting, should form some view concerning a party appearing in case after case and of the expert witnesses habitually called by that party. But, as was pointed out in Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 554, a fair and unprejudiced mind 'is not necessarily a mind which has not given thought' to relevant matters or one which, having thought about them, 'has not formed any views or inclination of mind upon or with respect' to them.' Although Dawson J was in the minority in Vakauta, I observe, as did Heerey J in Reid v Hubbard (No 2) [2004] FCA 180 at [16], that his Honour's general statements reflect correct restatement of applicable principles. They are principles to which the respondents' submissions appear to reflect little or no recognition in the particular circumstances with which I am presently confronted. 19 Recently in this Court in Versace v Monte [2003] FCA 126 at [2], after observing that the relevant principles in relation to apprehended bias are well settled, Tamberlin J continued as follows in terms of the application of those principles: 'The material to establish apprehended bias must be assessed in the light of an assumption that judicial officers act with honesty and discretion: see Davids Distribution Pty Limited v National Union of Workers (1999) 91 FCR 463 at 510. There must be a reasonable and objective basis for an apprehension or perception that the case may not be decided impartially and without prejudice: see Lynch v Zurich Australian Insurance Limited (unreported, New South Wales Court of Appeal, 10 November 1998). Where it is alleged that there is pre-judgment it must be shown that there is a commitment to a conclusion already formed irrespective of the evidence or arguments to be presented: see Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100.' I do not think that I have been provided with a sufficiently reasonable or objective basis for apprehension or perception that the case may not be decided impartially and without prejudice on my part. That is not to say that I have been mystified, if not troubled, as to the relevance of at least the basis for the majority of the respondents' present submissions. However there is still some distance to travel in this litigation, including the cross-examination of the applicant's witnesses, before I think I will gain more insight into the merits of the respective cases of the parties. 20 I should further add that the use of the words 'in all the circumstances' in Livesey at 293-294 (Mason, Murphy, Brennan, Deane and Dawson JJ) implicitly requires that the existence of apprehended bias must be viewed as a whole and in the context in which the judicial officer's conduct complained of has occurred. That principle has been recently reaffirmed by the High Court in Bienstein v Bienstein (2003) 195 ALR 225 at 231-232, where the High Court discussed a refusal by Hayne J to disqualify himself for apprehended bias. Also in Livesey, I should add for completeness, it was said at 299-300 that it is impossible to lay down an inflexible rule, and that each case must be determined by reference to its own circumstances; in particular at 300, the following appears: 'It is, however, apparent that, in a case such as the present … a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness…'. 21 I am satisfied that the present application for disqualification has not adequately addressed the principles restated in these latter authorities in particular, in the light of the present state of the pleadings, and that it would be wrong for me to stand aside upon the basis of the present application made on behalf of the respondents, being a course which is of course opposed by the applicant. I have not consciously formed any concluded views on the merits of either party's case or on the credibility of any of the testimonies I have thus far read and heard. The application should be dismissed and, as already observed, the question of costs is to be reserved for the time being. 22 I should add that immediately prior to publishing these reasons, there was delivered to my Chambers fifteen pages of written submissions, with many pages of annexures, together with a covering letter of Mr Brian Donovan QC dated 21 April 2004 reading as follows: 'Myself and Mr Hall have been instructed to put material before your Honour in relation to the disqualification. We are both aware that your Honour has ruled on this and put forward the enclosed material with no disrespect whatever to your Honour. The material is put forward as a supplement of that of 8th April 2004, for your Honour to consider and if appropriate grant leave to reopen the Application. No further oral submissions will be sought to be made in relation to the material and if leave were granted the only material and submissions would be the enclosed. Again no oral submission would be made.' 23 I think that it would be inappropriate and without sufficient justification for me to grant the leave to re-open sought by the respondents, and thereby cause further delay in the ultimate resolution of the proceedings. If the respondents seek to pursue my disqualification, the appropriate course is for the respondents to seek the leave of a Full Court to this Court to appeal my present interlocutory decision not to disqualify myself from the further hearing of the proceedings.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Counsel for the Applicant: B W Rayment QC and D T Kell

Solicitor for the Respondent: Proctor & Associates