Gacic v John Fairfax Publications Pty Ltd

Judgment 1HIS HONOUR: Following the disposition of these proceedings by the Court of Appeal, the matter has returned to me for consideration of the question of the plaintiffs' damages: see Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362. 2In advance of my consideration of the referred issues, the plaintiffs have moved the Court for an order that I recuse myself on the basis of apprehended bias. The plaintiffs rely in this respect upon Australian National Industries Ltd v Spedley Securities Ltd (1992) 26 NSWLR 411 at 422-3, 426, 430, 442 and 447 and British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283. In the latter case the High Court said this at [145]: "[145] Whenever a judge is asked to try an issue which he or she has previously determined, whether in the same proceedings or in different proceedings, and whether between the same parties or different parties, the judge will be aware that different evidence may be led at the later trial. Judge Curtis's express acknowledgment of that circumstance does not remove the impression created by reading the judgment that the clear views there stated might influence his determination of the same issue in the Laurie proceedings. Allsop P's conclusion was correct. In addition to the possibility of the evidentiary position changing, a reasonable observer would note that the trial judge's finding of fraud was otherwise expressed without qualification or doubt, that it was based on actual persuasion of the correctness of that conclusion, that while the judge did not use violent language, he did express himself in terms indicating extreme scepticism about BATAS's denials and strong doubt about the possibility of different materials explaining the difficulties experienced by the judge, and that the nature of the fraud about which the judge had been persuaded was extremely serious. In the circumstances of this unusual case, a reasonable observer might possibly apprehend that at the trial the court might not move its mind from the position reached on one set of materials even if different materials were presented at the trial - that is, bring an impartial mind to the issues relating to the fraud finding..." 3In summary, the plaintiffs contend that my findings on damages following the trial before me might create an impression of partiality or prejudice in the mind of a disinterested observer. That is the test as stated in Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-4 as follows: "... That principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it..." [Emphasis added] 4The Court of Appeal published its reasons for judgment on 26 September 2011. It remitted the matter "to the Common Law Division for assessment of damages". On that question, McColl JA said this at [110] - [115]: "Damages [110] The appellants' written and oral submissions said little more on this ground of appeal than that the primary judge's assessment of damages was grossly inadequate. In oral reply, Mr Evatt added that his Honour erred in overlooking their claim for aggravated damages. They urged this Court to re-assess damages. [111] The respondents emphasised appellate restraint in interfering with an assessment of general damages: Moran v McMahon (1985) 3 NSWLR 700. They submitted that if this Court did form the view that their defences had failed in respect of some but not all imputations, or some but not all appellants and that the damages were inadequate, the matter should be remitted for a further hearing on that issue. [112] The primary judge overlooked what could be a significant factor on the assessment of damages in the appellants' claims for aggravated and exemplary damages. Matters of aggravation may push an award of damages towards the higher end of the scale: Cassell & Co Ltd v Broome [1972] AC 1027 (at 1085), per Lord Reid; see also Andrews v John Fairfax & Sons Ltd (1980) 2 NSWLR 225 (at 240, 249). Moreover, although the appellants did not expressly refer to it, I assume their claim for exemplary damages has not been abandoned. [113] Aggravated damages are awarded for hurt to feelings. They necessarily depend upon observation of the claimant and his or her reaction to the matters particularised by way of aggravation. It is not possible for this Court to have the benefit of seeing the appellants give their evidence in this respect. [114] Further, exemplary damages are awarded "as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself": Wilkes v Wood [1763] EngR 103; (1763) Lofft 1 (at 19) (98 ER 489, at 498-499) per Pratt LCJ cited with approval in the joint judgment in Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 (at 8). While "it may be doubted whether a single formula adequately describes the boundaries of the field in which they may properly be awarded, ... the phrase... of 'conscious wrongdoing in contumelious disregard of another's rights' describes at least the greater part of the relevant field": Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1 (at [14]) per Gleeson CJ, McHugh, Gummow and Hayne JJ. The question whether the respondents engaged in conduct warranting an award of exemplary damages is also a matter which should be considered at first instance. [115] The issue of damages should be remitted for further consideration." 5The defendants oppose the plaintiffs' application. They say that I have already had the advantage of seeing and hearing the witnesses and that it would occasion unnecessary expense and delay if a different judge were to hear what remains of the damages case. 6With respect to the defendants, those submissions are to a large extent beside the point. Indeed, it is at the heart of the plaintiffs' objection to my further involvement in the proceedings that, having seen and heard the witnesses and presumably formed a view about them, I decided an issue, or at least a considerable part of an issue, that has now been remitted to this Division for further consideration. According to the plaintiffs, those circumstances lead to the conclusion, consistently with the authorities upon which they rely, that I should take no further role in the adjudication of any matters remaining in the proceedings. 7It was contended by the plaintiffs in the Court of Appeal that my assessment of damages was "grossly inadequate". That may have been a concern that I had failed to deal with any head of damages other than general or compensatory damages, so that the plaintiffs' complaints about gross inadequacy were in fact limited to my failure to consider their claims for damages under other heads. However, I suspect that the plaintiffs' complaint was not so limited. Indeed, I rather anticipate that the plaintiffs will wish (at some stage) to contend that my conditional assessment of damages should itself be revisited or reviewed. 8In the way of things, the Court of Appeal did not set aside orders that I made with respect to damages for the obvious reason that I made none. My assessment of damages, with which the plaintiffs have taken issue, was preliminary or conditional only. There is some considerable prospect in this case that the plaintiffs will wish to assert that my "grossly inadequate" conditional assessment of damages should not automatically become unconditional upon remitter of the proceedings. If that is so, or even if there remains only the slightest prospect that it is so, it would not in my opinion be appropriate for me to resume any adjudicative role in the case of any sort. 9It may be technically accurate to say that the only remaining matter for determination is the question of the assessment of aggravated damages. (McColl JA made reference to the question of exemplary damages but in the hearing before me on this application the parties expressed some difficulty with that reference). Be that as it may, it does seem to me that an objective, disinterested observer might have some difficulty with the proposition that a judge who has already expressed a particular view about one aspect of the plaintiffs' damages would apparently be able to free himself or herself from all, or indeed any, predisposition when dealing with some other aspect of the plaintiffs' damages. 10If the principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he or she might not bring an impartial and unprejudiced mind to the resolution of the question involved in it, it seems to me that the public might be likely to entertain that very apprehension in the circumstances of this case. No question of cost or delay that may be associated with or which may accompany any decision by me to recuse myself can have any prevailing importance once the prospect of that reasonable apprehension exists. 11I consider that the remaining questions of damages in this case should not be heard by me but should be referred to another judge of the Common Law Division for consideration. I consider that the costs of this application should be the costs in the proceedings.