Gas and Fuel Corporation Superannuation Fund, A T Cocks and Partners Pty Ltd and Terry Cocks v Hartley Moses Saunders and Eva Saunders

Gas and Fuel Corporation Superannuation Fund, A T Cocks and Partners Pty Ltd and Terry Cocks v Hartley Moses Saunders and Eva Saunders - [1994] FCA 1237 - FCA 1994 case summary — Zoe

[64]

"I am firmly persuaded of the correctness of my finding that

the affidavits did not come into my possession until after

those conclusions had been stated. I hope that lawyers

practising in this State would have no difficulty in

accepting that finding. But I think it likely that a layman

in Mr. Saunders' position would reasonably think such a

finding wrong. Such a layman would be expected to be

acutely conscious of what he would see as the interest each

of Messieurs Sheehan and Wilson and Miss Voon had in a

refusal of the motion that I disqualify myself, and

conscious of the starkly contrasting disinterestedness of

Mr. Westgate and Miss Bendall. Such a person would find it

difficult to repress the thought that the judge who made the

finding and the three witnesses whose evidence he had

accepted were all members of the legal profession working in

the same city. In Livesey v. New South Wales Bar

Association [1983] HCA 17; (1983) 151 CLR 288 at 299 the High Court

pointed out:

'The reasonable observer is to be presumed to

approach the matter on the basis that ordinarily

a judge will so act as to ensure both the

appearance and the substance of fairness and

impartiality. But the reasonable observer is

not presumed to reject the possibility of

prejudgment or bias; nor is the reasonable

observer presumed to have any personal knowledge

of the character or ability of the members of

the relevant court (see Hannam v. Bradford

Corporation (1970) 1 WLR 937, at p 949;

(1970) 2 All ER 690, at p 700; Reg. v.

Liverpool City Justices; Ex parte Topping (1983)

1 WLR 119, at p 123; (1983) 1 All ER 490,

at p 494.)'

If it were reasonable of a person in Mr. Saunders position

to think my finding the product of bias and wrong, the

question arises as to whether that person might reasonably

think that I had looked at the affidavits before stating my

conclusions, and that I had been thereby biased against Mr.

and Mrs. Saunders in reaching those conclusions.

Mr Ritter submitted that the transcript of what I said in

court on 10 March could be taken as indicating that I had

not then reached a conclusion as to the result of the trial.

In fact I had reached such a conclusion and had commenced to

write reasons for judgment. But, on reading the transcript

in the light of Mr. Ritter's submission, I think there is

force in the submission. I used the words, 'if I were in a

position to give judgment', which might be taken to indicate

that I would attain that position in the future.

While it might seem improbable to a lawyer experienced in

litigation that a judge who had stated his intention of

announcing his conclusions about proceedings tried over a

period of 6 days would be susceptible to influence by the

contents of an affidavit which he read during the half hour

preceding the announcement, a layman might reasonably think

that he would be so influenced.

I return to the question whether a person in Mr. Saunders'

position might reasonably suspect that I had in fact read

any of the documents before stating my conclusions. There

is authority that where the means of communicating to the

judicial officer information or opinion likely to excite

bias is a person, the oath of the judicial officer that no

such a communication had occurred, or acceptance by counsel

for the party claiming disqualification that no such a

communication had occurred, does not preclude a finding that

an interested person might reasonably have suspected that

the communication was made: R. v. Sussex Justices; ex parte

McCarthy (1924) 1 KB 256; R. v. Magistrates Court at

Lilydale; ex parte Ciccone [1973] VicRp 10; (1973) VR 122 at 128. Is the

position the same where the means of communication

is a document in the judicial officer's possession? In the

particular circumstances of this case a suspicion that I had

read the documents before stating my conclusions would

entail the suspicion, not only that I had falsely stated the

contrary, but a suspicion that I had falsely found that the

documents were filed at 11 a.m., well knowing that they had

been filed before 9.45 a.m. There seems no good reason to

accord less weight to the oath of a Sussex justice of the

peace than to the unsworn statements of a judge. That

circumstance affords an example of the dangers, to which

Mahoney J.A drew attention in Bainton v Rajski (1992) 29

NSWLR 539, inherent in determination of disputed facts

by a judge who is asked to disqualify himself. Counsel for

all the parties invited me to take that course, but it may

now perhaps be seen to have been an unwise course. If that

course had not been taken, a person in Mr Saunders'

position, having been informed by his solicitors of what Mr.

Westgate had told them, might reasonably have suspected that

I had read the documents, notwithstanding my statement that

I had not, and might reasonably have suspected that I had

been biased against him by what I read before reaching the

conclusions I stated on 10 March.

There remains the question whether either of the affidavits

or any of the exhibits does indicate a discreditable

intention or action on the part of Mr. Saunders. I have

stated that I have not read the documents because counsel

for all the parties desired that I should not. In the

circumstances I think that I should infer that in the

documents there is matter that a person in Mr. Saunders'

position would reasonably think likely to create a bias in

my mind against Mr. Saunders' credit as a witness.

My conclusion is that a person in Mr Saunders' position, or

an interested person concerned to understand these

proceedings, might reasonably have apprehended, after

hearing the evidence of Mr. Westgate and Miss Bendall, that

I might have been biased against Mr Saunders when I reached

my conclusions because of what I had read in the affidavits

and exhibits, and that that apprehension was not dispelled

by what happened after those two persons had given evidence.

In all the circumstances I consider that I should not

proceed to give effect by orders to the conclusions stated

on 15 March, but should order a new trial by another judge

of the court."

[83]

"... prima facie when a judge decides not to hear a matter,

what he does is not a 'judgment or order' or otherwise such

a determination as is subject to appeal or formal judicial

review as such. This is the effect of Barton v Walker

(1979) 2 NSWLR 740. This does not mean that what he has

done may not be called into question. If he sits when he

should have retired for, for example, apprehended bias, that

may be relied on as a matter showing that the trial has

miscarried and his judgment may be set aside. This has been

amply demonstrated in recent times: see Vakauta v Kelly

(1989) 167 CLR 578.

An order made in consequence of his having decided that he

should not hear a proceeding may be appealable as such:

thus, if a judge decides that he has no jurisdiction to hear

a matter and, in consequence, determines not to sit but to

dismiss the proceeding, the order for dismissal will be a

judicial act which will attract review in formal procedures.

The position may be different where statutory provisions

operate to impose a legal obligation on a judge to hear, or

continue to hear, a particular proceedings: see, eg, the

provisions of the Industrial Relations Act 1988 (Cth), Pt 2,

Div 2, s 34 and s 36; the Australian Constitution, s 75(v)

and Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 65

AIJR 445; [1991] HCA 31; 100 ALR 634. And if a judge enters upon the

hearing of a proceeding, it may be that, in particular

circumstances, he will become subject of an obligation to

continue to hear it or, at least, not to cease to hear it

without appropriate cause.

It is not necessary in this case to consider the powers

which may, in a particular court, be exercisable by the

Chief Justice, the Chief Judge, or the Chief Judge of a

Division. It has not been suggested in this case that such

matters are relevant.

The fact that a judge, in determining not to hear a case,

does so for a reason that is wrong, in fact or in law, does

not in my opinion alter the position. If a judge concluded

that he would not sit because of other court commitments,

his decision could not be called into question on judicial

review because in fact he was wrong. And, in my opinion, if

he decides that there is a risk of a reasonable apprehension

of bias such that he should not sit, formal proceedings are

not available to prove that he was wrong." (Emphasis

added.)

[86]

"In Barton v Walker (1979) 2 NSWLR 740, this Court

considered how the question of whether a judge should

refrain from deciding a case for reasons of this kind can be

raised. The Court decided that the question is one to be

decided by the judge himself; it is not an issue to be

decided, as a matter of fact or otherwise, upon motion for

the purpose and after (if necessary) a contest of fact. It

was, in this sense, described as a non-judiciable issue.

That decision has been applied by this Court on a number of

occasions. It has not been in contest in the present

appeal.

It is not necessary that I reiterate the reasons given by

Samuels JA for the decision of the Court in that case. In

general, I am in respectful agreement with what his Honour

said. There are obvious reasons why the issue of, for

example, whether a particular judge is in fact biased or

there is an appearance of bias should not be the subject of

factual context, by evidence and counter-evidence, before

the judge. A fortiori, the issue of whether one judge

should for such reasons not hear a case cannot be brought

before another judge to decide the former's bias,

pre-judgment, or the like, or the effect of them. The principle

adopted and followed has been that (special cases apart) the

matter is to be determined by the judge himself and, if he

be wrong, his error is to be corrected on appeal.

In my opinion, such an approach is correct. Ordinarily

matters of bias or pre-judgment are not susceptible of proof

in the ordinary way, by allegation and counter-allegation;

whether a judge is affected in such fashion is ordinarily a

matter known essentially by him. And I think, if such a

matter were brought to contest in such a way, by evidence

against evidence, the position of the judge and his

impartiality would be - or ordinarily would be - destroyed.

On the other hand, there is obvious convenience in there

being available a method for determining an issue of this

kind before the judge enters upon the hearing of a case,

particularly a long case: cf Rajski v Wood (1989) 18 NSWLR

512. On some occasions, the judge concerned has entertained

an application that the proceeding be not listed before him

or that a date fixed for the hearing of it be vacated. Upon

such an application the parties have canvassed before him

whether he should sit.

Both parties have accepted that the Court should, by means

of the procedure adopted in this case, decide the issue.

Cole J made an order that properly is the subject of appeal

within s 101 of the Supreme Court Act 1970. (Apparently an

order "dismissing the appellants' motions": see 26 NSWLR at

423.) He has, by his judgment, invited the decision of this

Court on the matter. No argument has, I think, been

directed to the contrary.

As I have said, it has not been argued that Barton v Walker

was wrongly decided. I do not think it was. But an appeal

is now properly before this Court. In the circumstances, it

is in my opinion proper to accept that the matter is before

this court for consideration of the judge's orders and the

reasons he has given for them." (Emphasis added.)

[89]

"The party having taken the point, if the judge refused to

disqualify himself or herself, the proper course was for the

proceeding to continue. Samuels JA put it (in Barton) (at

in these terms:

'... The Supreme Court has - as any court at the

apex of a judicial structure ought to have -

unlimited jurisdiction or authority; and its

judges are, therefore, not amenable to

prohibition, or to remedies of equivalent

purpose. Accordingly, a party must take

suspicion of bias as a ground of appeal after

judgment. He cannot summarily disqualify the

judge; he must fight the case through.'

To the extent that these last-mentioned remarks suggest that

the objection to a refusal of a judge to disqualify himself

or herself cannot ever be taken until the very end of the

trial, I respectfully differ. Such a conclusion was not

necessary to the decision in Barton. I do not consider it

to be part of the holding of the Court in that case. It

could involve great inconvenience in a particular case for

the reasons already referred to above. And it is

inconsistent with the essential reason that lies behind the

holding in Barton. This is that no appeal lies to this

Court from the decision of the judge on this issue precisely

because no order or other determination is made which is

susceptible to appeal. If an order is later made which (as

of right or by leave) is susceptible to appeal, the Court

may, in my opinion, consider in conjunction with any such

appeal (or summons for leave to appeal) an attack on the

order based upon arguments as to its invalidity grounded in

the actual or apprehended bias of the judge who made it. A

similar opinion was expressed by Priestley JA in Raybos

Australia Pty Ltd v Tectran Corporation Pty Ltd and by his

Honour. That is the correct way by which, at a relatively

early stage in these proceedings, the opponent might bring

to the Court, in a proper fashion, the objection which he

now wishes to agitate in the present impermissible

proceedings.

There is little doubt that, at a relatively early stage, (if

not already done) an interlocutory order made by

Badgery-Parker J in the principal proceedings would provide a

vehicle to ground a summons on the part of the opponent for

leave to appeal by which he could raise the issue which he

now seeks to argue. Instead of taking that course, he

issued the present summons. The second prayer for relief

flies in the face of Barton. The attempts to distinguish

the holding in that case from the circumstances here are

entirely unpersuasive. That holding requires that the

second declaration sought be rejected. In respect of it,

the claimants are therefore entitled to the summary relief

they seek by their motion." (Emphasis added.)

At a glance

Court

Decision date

Before

Source

Judgment (117 paragraphs)

Gas and Fuel Corporation Superannuation Fund, A T Cocks and Partners Pty Ltd and Terry Cocks v Hartley Moses Saunders and Eva Saunders (As Trustees of the H and E Saunders Family Trust) [1994] FCA 1237 (1 August 1994)

Parties

Legislation Cited (2)

Cases Cited (12)