DOVADE PTY LIMITED v WESTPAC BANKING CORPORATION [1998] NSWCA 70

When this matter first surfaced during the time when the appeal was pending, there was evidence put on on behalf of the appellants in the form of an affidavit sworn by their solicitor to the effect that certain matters were notdisclosed, and asserting that had they been disclosed, then an application for his Honour to disqualify himself on that ground would have been made. Alternatively, as I understand it, it is put that the mere non-disclosure of those matters represented a ground of appearance of bias which would provide cause for correction in an appropriate way on appeal.

Earlier this year directions were given for the precise grounds to be formulated and for written submissions addressing the non-disclosure issue as well as the other issues to be put on. This was in a context where there was a late application for adjournment of an earlier hearing date. I am not suggesting any allocation of fault in that regard.

I think it will be obvious to any fair minded observer, that the question of the issue of subpoenas to explore the personal financial dealings of a judge as a basis for challenging his or her sitting in a case or challenging a decision made by that judge raises significant issues. The Court must maintain control of its process, holding a balance between the legitimate rights of a litigant to have his or her case dealt with in a way that that does not leave any bad taste based upon a reasonable - and I emphasise reasonable - apprehension of unfairness; but balancing on the other side the legitimate personal interests of a member of the judiciary and the legitimate interests of the administration of justice as a whole. By the latter I mean there is a very real risk that certain litigants could resort to blanket subpoenas in aid of an improper attempt to avoid a matter being heard by a judge not of theirchoosing. I emphasise this statement is not directed at any of the present parties in the appeal.

The case as framed in the written submissions that have been filed focuses primarily upon the non-disclosure by the judge of a shareholding interest said to be held by his wife at the relevant time. The appellants have suggested that the judge himself may have had shares at some time, but my understanding of the

present position and certainly of the evidence and what I have been told in earlier directions" hearings, is that it is not now suggested that his Honour held shares in Westpac in his own right at any relevant time.

To the extent that the foreshadowed amended notice of appeal does not address the case based upon the non-disclosure of Mrs Rolfe's shares, then the appellants ought to consider that matter. I give no indication as to whether or not an appropriate amendment would be favourably received, but it is clear that this issue has been on the table for considerable time, and as I say, written submissions have been filed about it. But, this being a matter which ought to be dealt with strictly according to the book, then the notice of appeal ought to be put in order. It will be a matter for the Court hearing the appeal whether it will permit any amendment, including any amendment to the presently foreshadowed amendment.

There have been discussions from time to time based upon the asserted fact that the judge himself was a customer of the bank at the relevant time.

Alternatively, it has been suggested, latterly, that certain companies in which the judge had an interest were customers of the bank, perhaps at the relevant time. The subpoena for which leave to issue is presently sought addresses that customer relationship. That issue is not raised in the notice of appeal or the foreshadowed amended notice of appeal. As I read the document, it is confined to non-disclosure of an interest in Westpac. Nor is there any suggestion in the evidence that disclosure of this matter might have led to an application that the judge recuse himself.

In my view it would not be proper to lend the aid of the Court to what would be a fishing expedition in aid of a matter that is not addressed in the written submissions or the foreshadowed amended notice of appeal. I am comforted in that view by a firm conviction that the mere fact that a judicial officer has a customer relationship with a litigant party could not in itself be a basis for any reasonable apprehension of bias. It was pointed out in argument that the proposition in its baldest form would extend to the judge who bought petrol at a particular place or goods at a particular shop.

Given the present state of the submissions, the foreshadowed notice of appeal and the evidence which would be necessary to be relied upon if this wider case were to be made, and given the firm though necessarily provisional view I have just expressed, I am not prepared to allow the process of the Court to go for this additional issue of the customer-banker relationship to be explored. I refuse leave to issue the subpoena. I reservethe costs of this application and of the earlier directions" hearings.