Eastman v The Hon Justice Anthony James Basanko and The Attorney-General for the Australian Capital Territory [2010] ACTSC 16

3. The grounds on which Mr Eastman based his assertion of actual bias against me related mainly to my handling of an interlocutory application made by him two days before the date set down for the appeal to begin (the adjournment application). He also claimed that bias was demonstrated by my approach to the custodial arrangements decision.

4. Mr Eastman's claims of actual bias, at their most general, amount to a submission that actual bias is shown by my failure to agree with any of his submissions or to grant any of his applications.

5. More particularly, Mr Eastman says that, in the hearing of the adjournment application:

(a) I refused to believe his submissions about factual matters, and made comments about those factual matters, while knowing that his submissions were true and that my comments were false;

(b) I denigrated him (he made this accusation by describing my reaction to his submissions in highly emotive language); and

(c) my reluctance to be criticised again by the High Court, as had happened in the case of Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (Aon), led me to refuse his adjournment application even though I knew the claim was "at least very arguable and well based" and, in order to justify refusing his application, I had "put the blame" on him for the events that he said justified an adjournment.

6. To make sense of Mr Eastman's claims about the adjournment application it is necessary to outline the grounds of that application.

7. In May 2009, Mr Eastman's appeal was listed for 22 and 23 October 2009. The appeal had been difficult to schedule, because of the need to include two additional Judges (Federal Court Judges sitting as Judges of the ACT Supreme Court) in the three-member Court of Appeal.

8. On 2 June 2009, Mr Eastman's solicitors had briefed counsel. On 8 October 2009, Mr Eastman said, he was advised by his solicitors that counsel had indicated that he had not yet prepared a summary of argument and wanted higher fees. The solicitors advised Mr Eastman to agree to them briefing Dr James Renwick of the Sydney Bar. This was duly done, on the basis that Dr Renwick would have a draft summary of argument ready by 12 October 2009.

9. Dr Renwick did not provide his outline by the promised date. The outline was in fact delivered to Mr Eastman on 19 October 2009. Mr Eastman said that it was only at this point that he realised he would need an adjournment.

10. It seems that Mr Eastman makes a practice of supervising his legal representatives closely. In this case Mr Eastman had wished to settle or approve counsel's summary of argument, and claimed that he had told his solicitors that "at the very outset"; however, if this message had been clear to the solicitors, they and counsel had overlooked it as the hearing date approached. This meant that Mr Eastman did not get the draft outline early enough to enable him to provide the detailed input he had intended.

11. Secondly, and perhaps more unfortunately, Mr Eastman preferred to back his own legal expertise over that of counsel, and so he was concerned when he received Dr Renwick's draft summary on 19 October and realised that it included novel arguments not already approved by Mr Eastman, and did not include an argument he had repeatedly raised unsuccessfully but wished to raise again.

12. Accordingly, on 19 October 2009, Mr Eastman applied, unrepresented, for the appeal hearing to be adjourned because, Mr Eastman said, his counsel would not be properly prepared. That application came before me on 20 October 2009. In the meantime, Dr Renwick, by written advice dated 19 October 2009 from his instructing solicitors, Jackson Lalic Lawyers, had advised the court that he believed he would be adequately prepared to conduct the appeal on the scheduled date.

13. I rejected the adjournment application. If Mr Eastman's arguments about preparation time were well-founded, it should have been obvious at the time Dr Renwick was engaged, or possibly some days or even weeks before that, that the failure of the first barrister to prepare for the hearing might have deprived Mr Eastman of his chance to have a properly prepared barrister appear on his behalf on the scheduled date for the hearing. However, no adjournment application was made at that point.

14. Instead, the adjournment application was made only a couple of days before the hearing, at a point when Dr Renwick considered that he would in fact be properly prepared for the hearing.

15. In effect, Mr Eastman's application was based not on counsel's difficulties in preparing adequately for the hearing, but on Mr Eastman's assessment that, in the time available, counsel could not have prepared properly for the hearing; this in turn appeared to have more to do with Mr Eastman's wish to supervise his counsel closely than with any problems recognised by counsel, who had advised his instructing solicitors that he was ready to proceed. That is, I was being asked to grant an adjournment on the basis of a presumed lack of preparation by counsel, despite the written advice from Mr Eastman's solicitors that they "will be in a position to proceed with the hearing on 22 and 23 October 2009".

16. I refused the adjournment on the following basis:

(a) first, if the shortage of preparation time provided a ground for adjournment at all, an adjournment application should have been made at the time when the shortage of preparation time first became apparent (that is, no later than the day on which Dr Renwick was first engaged and probably some time earlier);

(b) secondly, whether or not a shortage of preparation time could have been established at an earlier stage, by the time the adjournment application was in fact made the Court had advice from counsel's instructing solicitors to the effect that the short preparation time did not appear to have caused counsel any difficulties and that an adjournment was not required.

Particulars of actual bias - adjournment application

Refusal to accept Mr Eastman's submissions knowing they were true

17. As mentioned above, Mr Eastman said that actual bias was shown by my refusal to believe or accept his submissions about factual matters, while knowing that his submissions were true and that my comments about them were false.

18. Mr Eastman submitted that the accuracy of his submissions made in the adjournment application about the inadequate time for preparation had been demonstrated by events during the appeal hearing which, in his view, revealed Dr Renwick as inadequately prepared for the hearing. Those events, the culmination of which was that Mr Eastman terminated Dr Renwick's retainer while Dr Renwick was in the middle of his submissions, were as follows:

(a) Dr Renwick had indicated that he was not familiar with the Legislation Act 2001 (ACT).

(b) Mr Eastman's solicitors had filed an amended notice of appeal, without Dr Renwick's knowledge and without Mr Eastman's knowledge or consent.

(c) There had been a failure, by persons unspecified, but presumably some part of Mr Eastman's legal team, to identify "the evidentiary basis for a claim of non-disclosure by the Crown".

19. It is unnecessary to consider whether any of these matters in fact indicated inadequate preparation on Dr Renwick's part, or a generally inadequate opportunity to prepare for the hearing. However, in view of the allegations made by Mr Eastman about Dr Renwick, it is appropriate to indicate my agreement with the view expressed by Dowsett J in court (by interpolation during Mr Eastman's application to me to disqualify myself) that until his retainer was terminated by Mr Eastman during the hearing, Dr Renwick had been doing a very good job under very difficult circumstances.

20. Even if it had in fact become apparent during the appeal hearing that Mr Eastman's legal team was inadequately prepared, that would not have established that inadequate preparation was an inevitable outcome of circumstances as they existed when Mr Eastman made the adjournment application, and therefore could not have established that when I refused the adjournment application I knew that inadequate preparation of the case was inevitable.

21. Presumably as separate evidence of actual bias, Mr Eastman repeatedly accused me of denigrating him during the adjournment application, by describing my reaction to his submissions in highly emotive language. For instance, he said that I "poured scorn and ridicule" on his assertions, that I suggested that he had "lied to the court" and "made applications on a fraudulent basis", that I said that his claim of inadequate preparation was "a false claim", that I "persisted in making accusations" against him, and that I "blamed [him]" for the lateness of the application.

22. It is difficult to deal with claims of this sort without setting out the entire transcript of the hearing of the adjournment application. However, having read the transcript carefully, I am satisfied that at all times I was appropriately polite to Mr Eastman, and that if anything I probably gave him too much latitude in how he presented his submissions.

23. It is, of course, possible to denigrate someone without using particular words, or colourful language in general. However, I note that in the course of a hearing that generated 56 pages of transcript:

(a) Neither the word "fraud" nor any other form such as "fraudulent" was used by anyone;

(b) Mr Eastman used "lies" or "lying" 6 times, and counsel for the respondent used "lying" once (not in relation to Mr Eastman);

(c) Mr Eastman used "fault" (usually in the context of things not being his fault) 14 times, and I used the word once (not in relation to Mr Eastman);

(d) Mr Eastman used "false" twice, and no-one else used the word.

24. I do not consider that there is any substance to Mr Eastman's claims that I denigrated him in any way during the course of the adjournment hearing, nor that my treatment of him as an applicant in that hearing demonstrated any actual bias.

25. Mr Eastman also claimed that following the High Court's decision in Aon, I was reluctant to be criticised again by the High Court, that I had therefore refused his adjournment application even though I knew his claim was "at least very arguable and well based", and that in order to justify refusing his application I had "put the blame" on him. I infer, although it was not clearly stated, that he believed I was biased in the sense that I decided against him for a reason other than the merits of his argument, specifically a concern about the views of the High Court.

26. Mr Eastman particularly took exception to my failure to mention that I had been one of the judges whose decision was overturned by the High Court. He is correct in saying that I had not expressly pointed this out; on the other hand, when I first mentioned the Aon decision at the hearing of the adjournment application, I had asked whether Mr Eastman had a copy of the decision (which names the ACT Supreme Court judges involved in earlier hearings of the matter) and he had confirmed that he did.

27. It is hard to make sense of Mr Eastman's argument about the Aon decision. If one starts from the premise that a judge would only be criticised by the High Court for making an incorrect decision, then a fear of criticism could only lead a judge towards what the judge believed the High Court would find to be a correct decision. It would be entirely misconceived for a judge to deliberately make what she believed to be an incorrect decision so as to avoid criticism from the High Court.

28. I cannot see that an attempt to reach the correct legal result (defined as a result that under challenge would be upheld by the High Court) could ever of itself be indicative of bias. Whether such an attempt were made from the craven motive alleged by Mr Eastman in this case, namely to avoid personal criticism, or the presumably more honourable motive of upholding the law as laid down by the High Court, it is hard to see how a judge's attempt to find an answer that would be approved by the High Court could be indicative of bias.

29. Accordingly, I am satisfied that there was no actual bias on my part demonstrated by:

(a) my decision on the adjournment application;

(b) my treatment of Mr Eastman personally in the adjournment application; or

(c) what Mr Eastman asserted to be my reluctance to make decisions that the High Court would criticise.

30. Although Mr Eastman's application was expressed to be based on actual bias, he also submitted, in the context of his claims about the Aon case, that "the test of bias is what the reasonably well informed lay bystander would deduce". This appears to be a paraphrase of the test for apprehended bias, as described by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, who said at [6]:

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.

31. Their Honours went on to explain (at [8]) that the application of the apprehension of bias principle:

... requires two steps. First, it requires the identification of what it is said might lead a judge ... 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 a judge ... 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_._

32. In relation to Mr Eastman's claims about the significance of the Aon case in my approach to his adjournment application, he sought to identify what he said might lead me to decide his case other than on its merits, that being a reluctance to be criticised again by the High Court. However, as follows from my comments at [27] and [28] above, the task of articulating the logical connection between a fear of criticism by the High Court, and the "feared deviation" (being, apparently, a temptation on the part of a judge to decide a case other than correctly, including on its merits), only needs to be described for its difficulty to be apparent. The logical connection was not successfully articulated by Mr Eastman.

Bias in relation to the custodial arrangements decision

33. Finally, Mr Eastman claimed that bias was demonstrated by my approach to the order relating to his custodial arrangements that had been made on 7 October 2009 by the Chief Justice.

34. The order was expressed to operate until 22 October 2009, being the first day scheduled for the appeal hearing; it was accepted that the order would expire at midnight on that day. At the end of that day's hearing, Mr Eastman sought to have the order extended until the end of the appeal hearing on the following day. That application was rejected by the Court of Appeal unanimously. Dowsett and Graham JJ gave individual judgments, and I agreed with the reasons of Dowsett J.

35. The bias on my part that Mr Eastman identified in that context was said to be demonstrated by my acceptance (as one of the participants in the Court of Appeal's decision) of "worthless assurances" offered by "people who had a track record of breaking just those sorts of assurances". In fact no assurances had been offered; rather, Dowsett J's reason for declining to make the order relied on what he described as:

an indication given to us by the Chief Executive of the relevant service, that there is no present intention to displace the arrangements which have been made pursuant to the Chief Justice's order.

36. As mentioned, I did not provide separate reasons for rejecting Mr Eastman's application, but agreed with Dowsett J's reasons. Apart from his factually inaccurate reference to accepting "worthless assurances", Mr Eastman made no case at all for his claim that agreeing with Dowsett J, or anything in the content of Dowsett J's reasons, demonstrated bias, whether actual or apprehended, on my part. Accordingly I reject that claim, and I also reject the implicit claim that having rejected his application for an extension of Higgins CJ's order about his prison conditions, I would therefore be biased against Mr Eastman in the continuation of his substantive appeal.

37. For these reasons, I rejected both the claim of bias and the claim of apprehended bias, and declined to disqualify myself from the hearing of Mr Eastman's appeal.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Penfold.

Counsel for the Appellant: JG Renwick until approximately 4:04pm on 22 October 2009

Solicitor for the Appellant: Jackson Lalic Lawyers until approximately 4:04pm on 22 October 2009

The Appellant appeared in person from about 4:04pm on 22 October 2009.

Counsel for the Respondent: JD Harris SC and DJC Mossop

Solicitor for the Respondent: ACT Government Solicitor