64 LGRA 177
British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283
[2011] HCA 2
Brown Brothers Waste Contractors Pty Ltd v Pittwater Council (2015) 90 NSWLR 717
[2014] NSWLEC 59
Livesey v NSW Bar Association (1983) 151 CLR 288
[1983] HCA 17
Re Henry
Source
Original judgment source is linked above.
Catchwords
64 LGRA 177
British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283[2011] HCA 2
Brown Brothers Waste Contractors Pty Ltd v Pittwater Council (2015) 90 NSWLR 717[2014] NSWLEC 59
Livesey v NSW Bar Association (1983) 151 CLR 288[1983] HCA 17
Re Henry
The Respondents filed a notice of motion dated 10 April 2017 seeking an order that I recuse myself from the final hearing of this matter on the grounds of apprehension of bias and/or actual bias. The basis for the application is exchanges between myself and senior counsel for the Respondent at a pre-trial mention of this matter on 6 April 2017. Mr Balog's affidavit sworn 10 April 2017 attaches the transcript of the pre-trial mention.
Mr Cavasinni the second Respondent has filed an affidavit which identifies the lengthy development assessment process undertaken in relation to the development of a residence on their land in Hunter's Hill. Mr Cavasinni states in paragraph 12 that having reviewed the transcript he and his wife are concerned they will not receive a fair hearing if this matter proceeds to final hearing before me because of comments made by me during the pre-trial mention. They consider that I may not determine the matter impartially at a final hearing.
The Applicant has commenced civil enforcement proceedings alleging unlawful development by the Respondents and orders requiring demolition of certain works. The Respondents' case in the substantive proceedings is essentially that on discretionary grounds the relief sought by the Applicant Council ought not be granted. The Respondent intends to rely on the wide discretion of the Court as articulated in the principles identified by Kirby P in ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67; 64 LGRA 177.
The transcript of the pre-trial mention shows that I asked senior counsel a number of questions about the merits of such an approach in Class 4 proceedings in circumstances where a Class 1 merit appeal could have been an alternative approach. I identified my concern about the relevance of the alternative landscaping plans sought to be submitted by the Respondents at the final hearing given the existence of approved landscaping plans already being agreed between the parties in the course of Court proceedings several years ago.
[3]
Principles in relation to bias/apprehension of bias
The principles relevant to determining apprehension of bias or reasonable apprehension of bias are whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide per Livesey v NSW Bar Association (1983) 151 CLR 288; [1983] HCA 17 at 300 cited in Hills Shire Council v Mouawad (2014) 203 LGERA 233; [2014] NSWLEC 59 at [24]. See also British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 at [104], [139] cited in Mouawad at [25]:
139 It is fundamental to the administration of justice that the judge be neutral. It is for this reason that the appearance of departure from neutrality is a ground of disqualification. Because the rule is concerned with the appearance of bias, and not the actuality, it is the perception of the hypothetical observer that provides the yardstick. It is the public's perception of neutrality with which the rule is concerned. In Livesey it was recognised that the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case. It is a recognition of human nature.
As the Respondent identified the Court of Appeal recently considered such matters and referred to Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 in Brown Brothers Waste Contractors Pty Ltd v Pittwater Council (2015) 90 NSWLR 717; [2015] NSWCA 215 at [136] which states:
136 The principles concerning apprehended bias were dealt with recently in Re Henry as follows:
[156] Bias sufficient to overturn a judgment may be constituted where there is either actual or apprehended bias. The question whether a decision was tainted by apprehended bias turns on "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (at [33]) per Gleeson CJ, McHugh, Gummow and Hayne JJ; Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; (2011) 244 CLR 427 (at [31]) per Gummow ACJ, Hayne, Crennan and Bell JJ. The "hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues": Michael Wilson & Partners Limited v Nicholls (at [32]).
[157] In applying the Ebner test, it is necessary to identify 'what it is said might lead the judge to decide a case other than on its legal and factual merits' and 'an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merit': Michael Wilson & Partners Limited v Nicholls (at [63]).
[158] The reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice, taking into account the exigencies of modern litigation: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 (at [13]) per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. "Trial judges are frequently required to make rulings excluding irrelevant and prejudicial material from evidence [and] [r]outine rulings of this nature are unlikely to disqualify the judge from further hearing the proceeding": BAT v Laurie (at [140]) per Heydon, Kiefel and Bell JJ.
[159] In applying the test for apprehended bias, it is necessary to attribute to that fair-minded bystander knowledge of all of the circumstances of the case: CUR24 v Director of Public Prosecutions [2012] NSWCA 65; (2012) 83 NSWLR 385 (at [39]) per Meagher JA (Basten and Whealy JJA agreeing). Apprehended bias must be "firmly established": R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546 (at 553-554).
In a case referred to by the Council GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Limited [2013] FCAFC 150 the Federal Court was considering an interlocutory decision of a trial judge not to transfer proceedings to another judge following the grant of an interlocutory injunction at [36]-[40]:
[36] First, whether or not the suggested apprehension is reasonable must be considered in the context of ordinary judicial practice. A judge is not expected to sit in silence, Sphinx-like, while arguments are presented and will often form tentative opinions on matters in issue. Counsel are ordinarily assisted by hearing those opinions: Johnson v Johnson (2000) 201 CLR 568 at [13], [53] and [80]. Indeed, the exposure of those opinions is calculated to encourage a response from counsel. It is invariably an exhortation for assistance, even when it is expressed in apparently emphatic terms.
[37] Secondly, the fair-minded lay observer is assumed to know the actual circumstances of the case: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87.
[38] Thirdly, the fair-minded lay observer will note the possibility of a change in the evidentiary position between earlier and later proceedings: see, for example, British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 at [145] ("Laurie").
[39] Fourthly, the fair-minded lay observer will also recognise that a professional judge is capable of departing from an earlier expressed opinion.
[40] Fifthly, it is important to recognise that "disqualification flows from a reasonable apprehension that the judge might not decide the case impartially, rather than that he will decide the case adversely to a party": Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 at [32]; see also Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352.
The Respondents submit that in the pre-trial mention my questioning of senior counsel was overly interrogative, personally critical of senior counsel and shows pre-judgment of the Respondents' case. This is submitted to be inappropriate in circumstances where objections to evidence had not been advised, written submissions had not been served, the parties had not opened their case, the case was listed for pre-hearing mention only, evidence had not been read in open court, no hearing or view had occurred and the hearing had not commenced. The questioning gives rise to a perception on the Respondents' part of actual or apprehended bias on my part if I hear the matter finally.
[4]
Consideration
The authorities referred to by the parties extracted above emphasise the apprehension of bias or actual bias lies in the perception of the hypothetical observer aware of the judicial decision-making role. The tests are articulated in Livesey and Re Henry and identify that the public duty to act impartially is considered in the context of ordinary judicial practice. The paragraphs from GlaxoSmithKline extracted above are helpful in identifying in a procedural context matters particularly relevant to the circumstances of this case.
The purposes of pre-trial mentions include enabling the Court and the parties to identify steps that are needed in order for a matter to be readied for hearing. It is expected of legal representatives in a matter close to a final hearing that they are able to consider relevant questions about their case asked by the presiding judge. These can be necessary in order for the Court to gain an appreciation of the substantive matters in issue as well as the procedural steps still required in order for the matter to be readied for hearing. It is not unusual for a detailed consideration of the parties' respective cases to be undertaken by a judge at a pre-trial mention. That occurred on this occasion.
As the final hearing has yet to commence, I have yet to make any determination of how the matter will proceed in terms of what evidence is read or determine any substantive issue in the case. At the pre-trial mention I expressed concerns with the Respondents' case as presented in the pleadings to their senior counsel. To the extent those concerns expressed views, these were intended to test the nature of that case. As the Respondent's counsel submitted these views were expressed before the steps identified by him summarised in par 10 above. The context of the pre-trial mention suggests that these views are of necessity preliminary only given that I am yet to hear the matter substantively. Having reviewed the transcript of the pre-trial mention in its entirety as well as the exchanges focussed on by the second Respondent I consider that I was primarily undertaking the task of engaging with both parties to ensure the key issues in the case were identified to enable appropriate preparation for hearing and to gain an understanding of those issues.
The second Respondent's affidavit states that both Respondents are concerned that they will not receive a fair hearing having viewed the transcript. While their understandable concern is expressed in their affidavit, when the overall purposes of a pre-trial mention are considered I do not believe that the properly informed hypothetical observer would consider that I will fail to act impartially in the hearing of this matter. The Respondents will have the opportunity to fully present their case to the Court in opening submissions at the final hearing and that will inform any rulings on evidence or other matters that may arise.
To the extent any exchanges were considered by senior counsel to be critical of him personally this was not intended by me.
The Respondents' notice of motion filed 10 April 2017 is dismissed.
[5]
Amendments
01 May 2017 - Proofing error - par 13
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Decision last updated: 01 May 2017