Hamod v State of New South Wales

Anthony Hamod (First Plaintiff) PARTIES : Hamock Investments Pty Ltd (Second Plaintiff) State of New South Wales (First Defendant) UBS Australia Limited (Second Defendant)

COUNSEL : J E Maconachie QC with M T Hutchings (First Defendant) M R Speakman SC (Second Defendant)

In person (First Plaintiff) SOLICITORS : I V Knight, Crown Solicitor (First Defendant) Allens Arthur Robinson (Second Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20147/2003 Anthony Hamod and Hamock Investments Pty Ltd v State of New South Wales and UBS Australia Limited (No 11)

JUDGMENT 1 HIS HONOUR: This is an application by the plaintiffs for me to disqualify myself from the further hearing of this matter upon the basis of apprehended bias. By the time the application was made, the matter was into its eighteenth day. The application is made orally without notice or other formality. This is of no consequence as no formal procedure is required to support a bias disqualification application: see British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109; Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337. The very nature of the application may require some flexibility of procedure in informing a judge of the basis for the application. In any event, although the defendants oppose the application, no other specific ground of opposition based on form is raised. Principles generally 2 The authorities emphasise that any "reasonable apprehension of bias" must be "firmly established" before it is appropriate for a judge to disqualify himself or herself from participating in the proceedings. The question of the hypothetical observer's reasonable apprehension falls to be decided against the standards of ordinary judicial practice: see Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 493, 508; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344, 365. The "reasonable apprehension" criterion means that neither an expectation about the way the judge is likely to decide the case, nor an express allegation of bias, is necessarily sufficient to generate a reasonable apprehension of partiality: Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352. 3 It is a fundamental rule that every judicial tribunal must be, and be seen to be, impartial: Johnson (supra) at 501. Even in the absence of direct personal interest, a judge ought not to hear a case if a fair minded lay observer might reasonably apprehend an impartial judicial mind might not be brought to bear on the resolution of the proceedings: see, for example, Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568. The reference to the fair minded observer has been described as in reality "no more than a personification of an objective test": see Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 at par [43] per Basten JA. 4 In deciding the question of "reasonable apprehension" it is important that judicial officers discharge their duty to sit, and do not accede too readily to suggestions of the appearance of bias. The issue in each case is whether the judge appointed to hear the matter might not bring an impartial and unprejudiced mind to its resolution: Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd [1996] FCA 1308; (1996) 65 FCR 215 at 230. A necessary corollary of this criterion is that a judge ought not to disqualify himself or herself except for proper reason: Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272. The criterion of "reasonable apprehension" should not be subverted into a lesser enquiry as to whether it would be "better" for another judge to hear the case. Applying such an imprecise and impressionistic criterion could encourage a belief that a party can, by making disqualification applications, obtain a hearing before a judge thought to be more favourable: see Re JRL (supra) at 352. 5 The limitation of reasonableness is particularly important in deciding whether a judge's interlocutory rulings, or preliminary views of the likely outcome, indicate bias - irrespective of whether they are expressed at an early or late stage of the proceedings. Such interlocutory rulings or expressions ought not to be regarded as giving rise to a reasonable apprehension of bias unless they indicate a significant level of prejudgment in relation to matters relevant to the final resolution of the proceedings: Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 100. Generally speaking, because of the nature of the issues and the limited factual investigation that interlocutory proceedings involve, rulings on interlocutory matters are unlikely to justify a reasonable apprehension of bias: Idoport Pty Ltd v National Australia Bank Ltd [2004] NSWSC 270. See also Sir Anthony Mason, "Judicial disqualification for bias or apprehended bias and the problem of appellate review", Constitutional Law & Policy Review, Vol 1, #2 12 August 1998 at 21. The plaintiffs' submissions 6 Mr Hamod made submissions on behalf of the plaintiffs. These submissions were not at all times obviously or apparently directed to the subject matter of the application. Some generous allowance has therefore to be made in recalling them. 7 At the heart of much of what Mr Hamod relied upon was the fact that I have decided a number of interlocutory matters in these proceedings, both in the course of case management prior to the commencement of the hearing in June and also in the course of the hearing proper. These have included rulings on contested applications to amend the statement of claim ([2008] NSWSC 518), to vacate the hearing ([2007] NSWSC 1363), to strike out a notice to produce issued by the plaintiffs ([2008] NSWSC 125), to order the production for examination and inspection of the Platinum Certificate at the centre of the case ([2007] NSWSC 1366 and 1395), to extend the time by which discovery should be given ([2007] NSWSC 1394) and several others including rulings on evidence and admissibility (see, for example [2008] NSWSC 611). Mr Hamod has pointed to my judgments in which I have found against him as evidence supporting the proposition that an objective observer would apprehend that I brought less than an impartial mind to the determinations that I made. 8 It goes without saying that I am not able to express a view about my own partiality or otherwise except by reference to the applicable objective test. There is an obvious artificiality in the procedure to the extent that the party challenging my suitability for continuing in the proceedings is subject to a decision from the very person whose independence and impartiality he seeks to impugn. Resort to the objective test may not wholly assuage the particular plaintiffs' sense of unfairness in these or similar circumstances. 9 However, at the most fundamental level, in accordance with the authorities that I have briefly reviewed, an adverse decision is not of itself any support, viewed objectively, for the proposition that the decision maker has not brought an independent mind to the decision. Self evidently no decision could withstand the potential for successful attack as long as there were parties to the decision in contest over the outcome. In such cases the decision(s) will have to stand or fall on their merits. This is particularly so in cases where decisions have been made that were in accordance with concessions made by counsel appearing on behalf of the plaintiffs, such as [2007] NSWSC 1363, where a concession was made by counsel that an order vacating the hearing date could not be resisted if certain events did not occur. I understand that Mr Hamod brings forth my decision to vacate the hearing date at a later stage when the circumstances contemplated by the concession fell in as evidence of apprehended bias. 10 Perhaps the circumstance most significantly emphasised by the plaintiffs in this application is my decision not to grant the plaintiffs an order vacating the recommencement of hearing on 8 September 2008. That application was filed or foreshadowed on 13 August 2008 and heard on 20, 28 and 29 August 2008. The matter was adjourned for a period within that time frame in order to permit the plaintiffs to supplement their evidence on a particular matter. 11 The plaintiffs make at least two complaints about my decision on that application. First, and curiously, the plaintiffs contend that I indicated at an early stage of the proceedings that the application was "doomed to fail" and that I did them a considerable disservice by listening to the application and taking evidence over three days when I should instead have dismissed the application peremptorily and saved them the trouble. I note in passing that my review of the transcript of those days and of my reasons for judgment did not reveal any reference by me, or indeed by anyone at all, to the application being foredoomed. In any event, it seems to me that the hearing of the matter in the way that occurred would in all likelihood satisfy the concerns of the impartial lay observer. 12 Secondly, the plaintiffs complain that during the course of the cross-examination of the plaintiffs' former solicitor by Mr Hamod on behalf of the plaintiffs, I terminated that cross-examination unfairly and in a way that bespeaks or suggests that I had prejudged the matter of that I was otherwise unfair to or apparently biased against the plaintiffs. The transcript of that cross-examination is to be found at pages 41 to 51 inclusive on 28 August 2008. That passage of the evidence must necessarily for present purposes speak for itself. However it is timely to recall that the burden of the plaintiffs' argument in the application was that they had been deprived of the fruits of a costs assessment by the first defendant and that they were therefore without funds to finance the retention of legal advice and representation for the resumption of the hearing. I expressed the view to Mr Hamod at the time that I did not get the impression that his line of questioning was directed at the issue then under consideration. My question and Mr Hamod's reply should be noted: "HIS HONOUR: None of the questions struck me as going to any of the issues in this case and I don't have the impression that any more questions will be any more relevant.

PLAINTIFF: I wish to assure you the questions are leading to the fact that most defendants are disobeying the court orders leading to the fact Mr Diab has withdrawn - and he wouldn't admit negligence but he offered me assistance." 13 At that stage I then said to Mr Hamod, "I take the view none of the questions you have foreshadowed is likely to be relevant and accordingly I will bring the cross-examination to an end". An impartial observer would have had the benefit of listening to the whole of the application to vacate the hearing and would have appreciated the issues raised by the plaintiffs in aid of the proposition that they were entitled to an adjournment. That observer would to my mind have been confronted with Mr Hamod's questions to Mr Diab about his allegedly negligent failure to perform in accordance with the plaintiffs' instructions and other matters not intimately or obviously connected to the application. That observer would have noted that objections taken by the defendants to some of Mr Hamod's questions were in all cases decided in the plaintiffs' favour. 14 That observer would also have considered my decision to continue with the hearing and the reasons that I did so. Once again I hasten to draw attention to the necessary artificiality of a decision by me on the apprehensions of a third party about my conduct. However, in my opinion, and subject to those constraints, a reasonable bystander would have viewed my decision to terminate the cross-examination in the circumstances as they applied at the time as not attended with any perceived absence of impartiality. 15 Mr Hamod has also complained in terms that he has lost confidence in me. I take that to be a submission that he has lost confidence in my ability to decide issues in these proceedings in an unbiased and impartial way. That submission is in effect no more than a genuine and truthful statement by Mr Hamod of his feelings about me and about my continued role in the proceedings. It is not a separate and distinct ground of complaint but it is nevertheless a submission that an impartial and objective observer would have formed the same view. 16 One of the matters that need to be incorporated in the present application is the fact that the plaintiffs are now and have for some considerable periods during the history of these proceedings been unrepresented by counsel and/or solicitor. I have taken care as far as possible consistently with recognition of the competing claims in this case to accommodate that unfortunate fact. The relevant principles that apply to unrepresented litigants in applications such as the present were referred to at some length in the judgment of Basten JA in Lee v Cha (supra) at pars [48] - [49] as follows: "[48] The Court was invited to assess the conduct of the trial judge in part by reference to the principles said to govern the conduct of a trial where one party is a litigant in person and not fluent in English. The relevant principles, if they can be so described, derive from the obligation of a trial judge to take appropriate steps to ensure that a party appearing unrepresented has sufficient information about the practice and procedure of the court as is reasonably practicable for the purpose of ensuring a fair trial: see, in relation to an accused in a criminal trial, MacPherson v The Queen (1981) 147 CLR 512 at 523 (Gibbs CJ and Wilson J), 534-535 (Mason J) and 546-547 (Brennan J), (Aickin J agreed with Mason J and Brennan J). Application of that principle will vary depending on the circumstances of the case and particularly as between trials with and without juries. In some courts, the principle has been reformulated in terms of more specific "guidelines": see Re F [2001] FamCA 348; (2001) 161 FLR 189 at [215] and [253] (Nicholson CJ, Coleman and O'Ryan JJ). The kind of assistance required in the circumstances may also be qualified where there are several parties in the same or similar interest so that the trial judge may be entitled to rely upon the assistance an unrepresented litigant has had from other parties.

[49] There will be cases where a failure to provide assistance to a litigant in person will give rise to a miscarriage, so that the trial may be overturned on appeal: MacPherson provides an example. However, it is important to note that although an appearance of partiality may be said to give rise to an unfair trial, a failure to provide sufficient information to an unrepresented litigant may result in the trial miscarrying without any suggestion of bias or apprehended bias on the part of the trial judge. Partiality is a specific form of unfairness; no broader complaint was raised by the present application." 17 Although it is difficult to review the conduct of the whole of the proceedings on the occasions when the plaintiffs were unrepresented, an impartial observer would have seen considerable latitude extended to the plaintiffs in many respects. Mr Hamod complains that he is unfamiliar with legal language, court jargon or the niceties of procedure and the rules of evidence. These matters notwithstanding, the case has proceeded to an important stage with the plaintiffs' case close to conclusion. The plaintiffs' failure to secure legal representation would not strike an objective observer as having caused or led the plaintiffs' case to fall at the first hurdle. 18 Mr Hamod also professes a less than perfect understanding of English. If this is so it will have to be compared with his role in the proceedings as evidenced by the transcript and his statements and affidavits as well as his avowed participation in the construction of several amended versions of the current pleading on which the plaintiffs rely. 19 Finally I note that on many occasions I have drawn attention to the fact that Mr Hamod's absence of legal training is an impediment to his proper presentation of the plaintiffs' case and is inimical to their interests in these proceedings. None of my comments in that field was intended as a criticism of Mr Hamod personally or an indication of any prejudgment on my part. However, once again, no statement by me about that in apparent exculpation is germane to the present enquiry. I raise the matter as something to which the impartial observer would necessarily have regard in considering whether or not my comments were directed toward assisting the plaintiffs or were gratuitous remarks of a discouraging and disparaging nature. Conclusion 20 As far as I am able to determine the matter, the hypothetical "fair minded lay observer" identified in Ebner (supra) at 344 and elsewhere in the authorities would not have formed the view that I have not brought or might not bring an impartial mind to the resolution of the questions I am required to decide. I am aware that the plaintiffs do not take kindly to decisions that do not favour them. Unfavourable decisions are not, and can never be, without more sufficient to support or establish the existence or manifestation of an objective apprehension of bias. I note that the plaintiffs do not suggest the existence of actual bias or improper prior association with or connection to the defendants or either of them. Order 21 The plaintiffs' application is dismissed.

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