//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2000] FCA 961
Federal Court of Australia
1995-09-04
Dowsett J
Original judgment source is linked above.
The applicant's complaints 57 The applicant's complaints are as to: · perceptions concerning the possible state of knowledge of the former associate in connection with this case; · the conduct of Baker & McKenzie in recruiting him as an employee; and · that firm's subsequent conduct in its dealings with the applicant's solicitors concerning the matter.
Perceptions concerning the former associate's knowledge 58 Mr Hampson's argument was primarily that an observer would note that the associate robed in court and entered and left with me, inferring from those facts that a close association existed. Further, with some knowledge of the possible duties of an associate, such as those suggested in the two curricula vitae, it might be inferred that he would have confidential information concerning my attitude to this case. I repeat that, as I observed in the course of argument throughout this case, I have frequently raised with the parties my views, tentative or otherwise, as to its merits and as to the problems inherent in it. I doubt very much whether there is any thought, other than the most transient which has not been so ventilated. It is said that the mere fact of frequent and extensive disclosure to the parties does not eliminate the possibility that there are other thoughts which have not been so disclosed. That is at least theoretically possible. In practical terms, however, it is a little difficult to identify what those thoughts might be. This, in turn, makes it difficult to identify ways of negativing any perception of unfairness as an alternative remedy to abandoning the trial. I would expect, however, that the fair-minded observer would take into account the frequent expression of such perceptions in deciding whether or not it was likely that the associate was privy to information not known to both parties. 59 The relationship between associate and Judge is routinely described as being one of confidence. There are, I believe, substantial reasons why a Judge would expect an associate to maintain confidentiality concerning knowledge derived during his or her employment. The associate may have knowledge of the Judge's personal affairs, of relationships between Judges in the same court and of the Judge's views concerning individual practitioners, other Judges, public issues (including political issues) and other sensitive matters which, if they became public, might embarrass the Judge or detract from the capacity to fulfil his or her functions. It might also be embarrassing if knowledge of particular idiosyncrasies were to be disclosed. Disclosure of a preliminary view which was not reflected in a final decision might have a similar effect. Quite apart from such considerations, it is generally inappropriate for an associate to have close contact, other than such as is necessary in performing his or her duties, with the legal advisers for either side in pending litigation in which the Judge is involved for the same reason as a Judge avoids such contact. This is because close association might lead to a perception that the Judge himself is associated with those advisers, thus running the risk of creating a perception of bias. 60 Another area of confidentiality concerns proceedings which, by their nature require confidentiality, at least until judgment, and sometimes thereafter. Examples are orders authorizing the use of surveillance devices and telephone intercepts. Temporary confidentiality might be necessary in connection with ex parte injunctive relief, particularly "Mareva" injunctions and "Anton Piller" orders. In addition, evidence is sometimes provided on a confidential basis, either pursuant to statute or because of commercial sensitivity. Decisions may also be commercially sensitive. Premature knowledge of the content of such a decision may confer an unfair commercial benefit. 61 The applicant, however, does not point to any such matters, but rather to a concern that the associate may possess information concerning my views about this case which, if disclosed to the respondent, may offer, or may have offered an unfair advantage. Although this proposition has superficial appeal, its logic is somewhat difficult to articulate. Any communication by Judge or associate with one party or one party's legal advisers concerning pending proceedings is habitually considered to be potentially dangerous. I suspect, however, that the root cause of this perception is not a fear that confidential information will be disclosed, but a fear of perceived bias on the part of the Judge. Where the associate is no longer employed by the Judge, such contact can provide no reasonable basis for perceived bias. 62 Part of the applicant's submission is that any disclosure may assist, or have assisted the respondent in settlement negotiations. If one side has secret insight into any view formed by the Judge as to the case, it will be better equipped to predict the likely outcome and may adjust its settlement proposals accordingly. The true value of such advantage may vary, depending upon the stage at which the view in question was formed, the strength with which it was held, the reliability, or perceived reliability of the associate's report and whether or not the Judge's view is susceptible of upset on appeal. The benefit could only be assessed by comparison with the likely outcome, had the information not been disclosed. Would the matter have proceeded to judgment, and with what result? Would it have been settled anyway and on what terms? These matters might be easy to resolve in some cases and difficult in others. No Judge would want an employee or former employee to disclose such information, but again, the reason is probably a desire to avoid a perception of bias rather than a concern about fairness in the settlement process. Many factors will affect perceptions of fairness during negotiations, including the competence of, and the degree of preparation achieved by the lawyers, and their views concerning the case. A competent, well-prepared lawyer would be unlikely to change his or her approach to a case on the basis of an unverifiable assertion by a former associate who was clearly acting in a disloyal and secretive way and was therefore probably unreliable. It is likely that the fair-minded observer would share this view. 63 In any event, the settlement process is not an integral part of a fair trial. Although negotiations are almost invariably conducted in tandem with the trial, any unfairness experienced in those negotiations cannot logically affect the perceived fairness of the trial itself, provided that the impartiality of the Judge is not brought into question. It is no part of the trial Judge's function to ensure that negotiations are "fair". 64 The applicant also submits that there may be a perception that the respondent's conduct of this trial has been affected by the disclosure of information as to some view of the case which I may have. Again, this proposition has some superficial attraction but lacks logical justification. The matters in issue in a trial are divided traditionally into questions of fact and law. It is impossible to see how secret knowledge of a Judge's view of a legal question could offer any real advantage, save possibly to encourage greater research designed to persuade him or her to a contrary view. In any case, a decision based on a question of law is readily scrutinized on appeal and corrected if wrong. There would be no point in adjusting the conduct of the trial to accommodate such a view, save perhaps to "play up to" it. I doubt whether anybody really believes that such tactics are effective. 65 As to questions of fact it is, in theory, possible that a decision to call or not to call a witness or witnesses on a particular issue might be influenced by information as to the Judge's view of earlier witnesses or other evidence dealing with that issue. However the only outcome would be that further admissible evidence would be either led or not led. Of course, in acting upon such information, the legal advisers would again have to consider the reliability of the information. I find it hard to believe that any competent lawyer would base such decisions upon information as to a view previously expressed by the Judge to an associate. Again, I would expect a fair-minded observer to take account of these matters. 66 In any event, I cannot see how a party's decision to call or not to call a witness could affect the fairness, or perceived fairness of the trial, given that fairness involves notice of the issues and an opportunity to call relevant evidence. The argument assumes a proprietary interest in tactical advantages derived from decisions made by the other side, so that if a Judge discloses an attitude which provokes a reconsideration of such decisions, the other side can legitimately complain of unfairness because the other party will have an opportunity to remedy a perceived weakness or exploit a perceived strength. The fallacy of this proposition is demonstrated by the fact that if the view in question were disclosed in court, there could be no complaint, provided it did not create a perception of bias. This would be so regardless of whether the other side also had the opportunity again to address the issue. For example, if a Judge told the defendant, during its case, that evidence was lacking on a particular issue, the defendant might be able to call such evidence, but the plaintiff's knowledge of the Judge's view and of the remedial steps taken by the defendant would not enable it to take any steps in response unless it was entitled to re-open its case. Thus it cannot be assumed that the secrecy of the communication will necessarily deprive the other side of the capacity to address the same issue. 67 If the applicant has evidence which she wishes she had led, having regard to the present state of the case, and if it were arguable that the respondent's evidence on that issue had been affected by secret knowledge of my state of mind, one would expect the relevant area to have been identified. It was said in argument that the applicant is not in a position to know. It is worth repeating that the applicant has known the contents of the respondent's case in some detail since before the commencement of the trial. If there had been any significant change in direction, it would have been readily apparent. The applicant has made no attempt to identify any such change in direction. If no such change is apparent, then it is difficult to see why a fair-minded person should suspect that the respondent has derived any helpful information from the former associate. Again I observe that the real risk of a communication with one side is the possible perception of bias, and that is not presently alleged. 68 So far, I have said little about the effect upon the fair-minded observer of knowledge that a former associate would be expected, both by the Judge and by members of the profession, to maintain confidentiality in connection with information derived in the course of his or her employment. There is nothing about such an expectation which is peculiar to the legal profession. Indeed, not infrequently, the newspapers report examples of employees, particularly in government agencies, being dismissed because they have improperly disclosed information derived by them in the course of their employment. It is, I believe, well known that many employees are subject to such restrictions, legal or moral. Further, as Mr Salgo points out in his affidavit, it would not be a particularly good basis for an on-going relationship of employer and employee that the employee was known to have betrayed the confidence of a former employer. This is particularly so when the employer is a firm of solicitors. Again, such matters would be apparent to a fair-minded observer. 69 On occasions, the applicant's case came close to suggesting that Baker & McKenzie had entered into negotiations with the former associate and had employed him with the conscious intention of gaining benefit from his alleged knowledge. For reasons which I have given, it is very unlikely that any firm of solicitors, behaving reasonably, would expect to derive any substantial benefit from such knowledge. Conduct of Baker & McKenzie in recruiting the former associate 70 It is submitted on behalf of the applicant that she, or any other fair-minded observer would be justified in drawing a relevant suspicion from the circumstances surrounding the former associate's employment. In part this appears to be based upon Mr Roche's opinion that the interviewing process was other than that normally followed by Baker & McKenzie in recruiting staff. To some extent this opinion may be attributable to the incorrect assumption that Mr Moses was the partner responsible for staff recruitment when he was, in fact, an employee. Mr Roche asserts that the suspicion is also based upon the interviews which took place between Mr Salgo and the former associate on one occasion and the former associate and three other partners on a second occasion. It was urged that this utilization of resources was unusual in the case of a graduate solicitor. Mr Roche was apparently suggesting that the employment of a junior solicitor would not normally have been treated as a matter of such seriousness. If Mr Salgo or anybody else were involved in a plot to exploit any confidential information which the former associate might bring with him, it would surely have been advisable to limit those with knowledge of the plan to the smallest number possible. Further, Mr Salgo asserts, and there is no challenge to it, that the employment procedure identified by Mr Roche is not normally adopted in the Litigation Department of Baker & McKenzie. 71 I would expect that in a large firm, there would often be occasions on which a partner would seek to employ a solicitor who had caught his or her eye. The extent to which such a partner can avoid the usual recruiting process will vary from firm to firm and partner to partner. There is something quite artificial about Mr Roche's concern in this area. It is difficult to accept that a fair-minded observer would see such departure from a published practice to be in any way suspicious, given the extended and public dealings between the former associate and the legal advisers on both sides in this case. 72 Finally, it was suggested that Baker & McKenzie's failure to disclose their discussions concerning employment with the former associate, their intention to employ him and the fact of his employment prior to my disclosure of that matter are bases for suspicion. Some people, in the position in which Mr Salgo found himself, would have raised the matter with the solicitors for the applicant before commencing the interview process. That approach, with the benefit of hindsight, has attractions. At least it would have avoided the unpleasantness with which we are now faced. On the other hand, from Mr Salgo's point of view at the time, it may not have appeared necessary or appropriate. His actions may have reflected, to some extent, the nature of his relations with the solicitors for the applicant, his own experience and perceptions of the knowledge acquired by associates of particular cases in the course of their employment, the depth of his own convictions concerning confidentiality and his expectations of others in that regard. After all, no complaint is made of the fact that, from time to time, and indeed on 4 February, the former associate had conversations with legal representatives of one side or the other. Any of those conversations would have provided an opportunity to communicate, intentionally or unintentionally, confidential information. The context of a job interview is inherently no more likely to prompt such disclosure. If anything, as Mr Salgo has suggested, one might expect a candidate for employment to avoid any disclosure of personal impropriety, at least until the potential employer has disclosed unorthodox views as to ethical standards. 73 It was suggested that there might be a perception that the price of obtaining employment was the provision of confidential information or alternatively, that the employment may have been a reward for information previously communicated, either at the interviews or perhaps at some earlier stage, in other words, that Baker & McKenzie had suborned the former associate. One cannot deny the bare possibility of such an occurrence, but that is not a reason to suspect that it occurred. All of these arguments assume that a fair-minded observer would start with the propositions that Baker & McKenzie were anxious to obtain an illicit advantage and that the former associate was desirous of using such information as he had to benefit either that firm or himself. Such assumptions are not consistent with my experience of human nature, nor do I think that they are shared by most fair-minded observers. As was pointed out by Steytler J in Newman (at 320), there is a view that mobility in the legal profession is a good thing. Further, it is in the public interest that the services of solicitors be freely available and that clients have the opportunity to choose their legal advisers. If such a pessimistic view of human morality is justified, then these objectives will be difficult to achieve. Associates, articled clerks and young solicitors expect, and are expected to move within the profession. It is one thing to restrict that movement where there is a reasonable basis for fearing mischief, but that is not a good reason for alleging mischief in the absence of evidence. 74 If the applicant's case is taken at it's highest, an associate could not take employment with any solicitor retained in a case on the Judge's docket at the time of the termination of the associate's employment. It is quite likely that a Judge will say something about a case as soon as he or she has first addressed it. It is true that as the case progresses, those views become firmer and arguably more valuable to either side, but the opportunities to exploit such views diminish. Lengthy trials would also pose a particular problem, as would urgent cases arising towards the end of the associate's employment. An associate would always be faced with the risk that his or her long-term employment arrangements would be disrupted by the Judge's sudden or extended involvement in a trial in which the associate's future employer was acting. 75 With the benefit of hindsight, it may have been advisable to have said something about the proposed appointment before it took place, although the date for commencement of employment may have been a more critical point. My disclosure may have pre-empted any such communication by Baker & McKenzie. They have not said in their material that they had intended to communicate the matter to the solicitors for the applicant, but that does not preclude the possibility that at some stage, Mr Salgo may have realized that there could be some concern on the part of the applicant and taken steps to allay it, perhaps by communicating the arrangements which he then had in mind as subsequently disclosed in the letters of 9 and 14 March. 76 It was suggested by counsel for the applicant that had I not disclosed the matter, then the former associate may have commenced work at Baker & McKenzie and remained there throughout the balance of the trial, without the applicant's becoming aware of it. It seems to me, however, that the intention that he commence work whilst the trial was in progress suggests the absence of any belief on the part of Mr Salgo or anybody else at Baker & McKenzie that there was anything questionable about the appointment. It is true that Baker & McKenzie is a large firm in Sydney and that the applicant's solicitors are based in Brisbane. One cannot assume that they would inevitably have become aware of such employment. However Baker & McKenzie would have been taking a substantial risk in allowing him to start work with them if they had anything to hide. An arrangement such as that which is presently in place would have been more likely to conceal the fact that there had been inappropriate contact between Mr Salgo and the former associate. The informed observer would also take account of such matters. I can see no basis for inferring from the circumstances surrounding the former associate's appointment that it involved anything which might cause disadvantage to the applicant in the course of this trial. Those circumstances cannot, therefore, contribute to any suspicion concerning the fairness of the trial.
Baker & McKenzie's conduct since the appointment 77 It was also argued that Baker & McKenzie's conduct since the appointment might found a suspicion that a miscarriage of justice may have occurred. This is based upon a construction of the correspondence between that firm and the applicant's solicitors since my disclosure on 6 March. The correspondence really speaks for itself. In the letter of 8 March the solicitors for the applicant requested "a full explanation regarding the circumstances surrounding the employment of [the former associate] by your firm at this time." The concern expressed in the letter was the possibility that the former associate possessed confidential information. In that context it is understandable that in the reply of 9 March, Baker & McKenzie concentrated upon that aspect in a way which made it clear that they had addressed the issue and had put in place a regime which they believed was adequate to prevent any such communication. The applicant's solicitors might reasonably have been critical of that arrangement, but that does not detract from the fact that Baker & McKenzie had addressed the question. Although the letter does not expressly state that there had been no communication with the former associate concerning the case, there was a clear inference to that effect available from the paragraph which states that "We do not know whether [the former associate] is in fact privy to any "confidential and important" information … . We have not asked him and do not propose to do so." The statement that the former associate was aware of his obligations in this regard was a reasonable assumption. The response as a whole was also reasonable, if somewhat aggressive in tone. 78 The solicitors for the applicant wrote again on 13 March, asserting that the letter of 9 March did not contain "a full explanation as to the circumstances of the former associate's employment …". While this may be so, as I have said, it was not unreasonable that Baker & McKenzie focussed upon their understanding of the nub of the applicant's concern. The applicant's letter then became somewhat argumentative, challenging Baker & McKenzie's assertion that they did not know whether the former associate was "privy to confidential and important information". There seems to have been no basis for rejecting that assertion, save for the later reference to "certain information". We now know that this was a reference to the curriculum vitae sent to the applicant's solicitors but not to Baker & McKenzie. The writer then asked, perhaps rhetorically, how Baker & McKenzie could know whether the former associate was aware of his obligations as to confidentiality. I consider that any member of the legal profession would expect an associate to maintain such confidentiality, whether for legal or moral reasons. The writer then criticized the proposed "quarantining" arrangements. Those criticisms may well have been valid. 79 Baker & McKenzie replied on 14 March, setting out the content of the discussion between Mr Salgo and the former associate and identifying those people from Baker & McKenzie who had spoken to him. The writer asserted that there had been no discussion as to the progress, merits or substance of this action and that the potential difficulties inherent in the fact that proceedings were continuing had been raised with the former associate to ensure that his employment was on a proper basis. It was said that the former associate had been interviewed by four named partners, Andrew Salgo, Mark Chapple, Julieanne Cox and Andrew Christopher. In Mr Salgo's affidavit, he states that he was not present at the interview conducted by the other three partners. Mr Salgo's interview had taken place in Brisbane on 11 February, whilst the second interview was in Sydney on 22 February. The applicant suggested that the letter of 14 March was equivocal in a suspicious way in this regard. I do not understand that submission. The letter concludes with a request for "your unequivocal confirmation that Ms Hurley has no objection to [the former associate's] employment with our firm, on the basis outlined in our correspondence." 80 There was no immediate response to this letter, and Baker & McKenzie wrote again on 20 March asking for "your substantive reply". On 22 March the solicitors for the applicant wrote to Baker & McKenzie saying that they were taking advice on the matter and complaining that they had not been informed of the "specific content of each of the conversations that have taken place between [the former associate] and the various members of your firm with whom he has now had contact." These details were requested. It was then observed that: We make the observation that whether you employ [the former associate], having already had significant contact with him, is a matter for your firm, not Ms Hurley. 81 This passage seems to suggest that the concern was at that time only as to any past disclosure and not as to the risk of disclosure in the future. On 23 March Baker & McKenzie wrote to the solicitors for the applicant, reiterating that there had been no discussion of the progress, merits or substance of the Hurley proceedings and that no information had been divulged by the former associate concerning these proceedings. The writer then pointed out that the applicant had not previously sought details of the "specific content of those conversations". This seems to be correct. The letter of 13 March sought information as to "what relating to this case was discussed at the interviews" and "what discussions concerning this case have occurred with members of your firm, what information about this case was divulged." There was also a request for an explanation "as to the circumstances of [the former associate's] employment." Those questions had been answered. 82 Baker & McKenzie wrote again on 23 March, recording their disappointment at the position taken by the applicant, detailing the situation as they understood it. The writer indicated that notwithstanding the fact that the firm believed that it would be appropriate for the former associate to commence work in the Construction Law section, arrangements had now been made for his temporary employment at the Public Interest Advocacy Centre. As far as I know, there was no response to this letter until 15 May. On that day, the applicant's solicitors wrote, noting the refusal to provide further details of conversations between the former associate and persons associated with Baker & McKenzie. The writer asked for "sworn affidavits from [the former associate] and each member of your firm to whom he has had contact confirming that the Hurley proceedings have not been discussed, or if they have been discussed the exact nature and extent of those discussions." No explanation was offered as to why at that late stage, affidavits should be sought. It should be noted that the applicant's concern had switched from the "specific content of each conversation" to details of any discussion concerning this matter. On 19 May Baker & McKenzie wrote, indicating that there would be no such affidavits. The notice of motion in these proceedings was filed on 3 July. 83 I see nothing in this correspondence which could justify or contribute to a suspicion of the kind asserted on behalf of the applicant. Relations between the solicitors have unfortunately become strained, although I do not know whether that is as a result of this particular issue or as a result of the wider proceedings in which they have been engaged for some time. Although the tone of letters on both sides is somewhat aggressive, that is no basis for suspicion that Baker & McKenzie have illicitly acquired confidential information about this case. One would normally expect a solicitor to accept an assurance from another in a matter of this kind although, in the end, it is a matter for the client. It is not clear to me from Ms Hurley's affidavit that she was made aware of the content of the correspondence between the solicitors, although in par 5 of her affidavit, she deposes to having been told that there had been such correspondence. She deposes, in the same paragraph, to having been shown an application for employment received by her solicitors in connection with the former associate. Presumably, if she had also been shown the correspondence, she would have said so. Far from aggravating any possible suspicion, I consider that Baker & McKenzie's correspondence ought to have been taken as an indication of good faith. The competing considerations 84 As far as I can see, the only considerations upon which the applicant relies for her suspicion are: · that the former associate worked as my associate during the trial of this action; · that arguably, he has claimed to have drafted reasons for judgment in this matter (there have been a number of interlocutory decisions); · that he had a discussion with Mr Salgo in which the question of employment was raised; · that there were further interviews and social contact between him and partners and employees of that firm after he ceased employment as my associate; · that he was offered and accepted employment on Friday 3 March; and · prior to my raising the matter on Monday 6 March, the solicitors for the respondent had not made any disclosure of the matter to the solicitors for the applicant. 85 Militating against any such suspicion are the following factors: · the moral, if not legal duty to maintain the confidentiality of information derived in the course of employment and community understanding of this; · that the respondent's case was very substantially disclosed in advance of trial in affidavit form, and that there was therefore little opportunity for any change of direction without its being obvious to the applicant; · that the applicant does not identify any such change of direction; · that it is difficult to identify any area in which a practical advantage might be derived from knowledge available to the former associate; · that I have had wide-ranging discussions with the parties in court concerning the strengths and weaknesses of the case; · that the applicant apparently does not object to the fact that the former associate spoke to Mr Salgo on 4 February concerning the case, and presumably had done so on earlier occasions in the course of the performance of his duties as associate, as he would also have spoken with the solicitors for the applicant from time to time; · that the former associate advised me of his appointment very shortly after it was made; · that Baker & McKenzie's initial intention was that the former associate be employed in an area of the firm in which he would be "quarantined" from those having the carriage of this litigation; · that Baker & McKenzie intended that he commence work immediately, so that it could not be said that any active step had been taken to conceal the fact that there had been contact between that firm and the former associate; · the inherent unreliability of information obtained in such an illicit way and the unlikelihood that any competent lawyer would base a significant decision as to the conduct of a case upon such information; · the relative frequency with which young practitioners change employment within the legal profession, with the resulting potential for breaches of confidence and the need for such matters to be regularly addressed. 86 Of course, some of the above matters may not be known to every reasonable observer, but all are quite easily discoverable. I note that some of the material relied upon by the applicant would also not necessarily be widely known, even within the legal profession. I have in mind the content of the two curricula vitae and Baker & McKenzie's recruitment policy and staffing arrangements. 87 I doubt very much whether any reasonable person would expect that the former associate had significant confidential information relevant to this case or would be likely to communicate it if he did. Nonetheless, the risk of an unreasonable suspicion may have justified some attempt to protect the integrity of such a long trial. Indeed, had I not thought as much, I would not have raised the matter with the parties. That it may have been desirable, out of an abundance of caution, to take such steps does not, of itself, justify a suspicion that the trial has miscarried. Such an abundance of caution might have led Mr Salgo to raise the matter with the solicitors for the applicant at some stage prior to my disclosure. Out of a similar abundance of caution, they may have preferred an arrangement such as that now in place rather than Baker & McKenzie's original proposal. However the events which have occurred since 6 March appear to me to have been largely unnecessary and very unfortunate. A fair assessment of all of the circumstances set out above would, in my view, lead inevitably to the conclusion that there was no basis to suspect that there had been any unfairness, let alone a miscarriage of justice. 88 I have thought it appropriate to deal with the substance of the allegations because the duties of an associate are not often considered and hopefully, my thoughts may be of benefit in the future. There are, however, three other factors, all of which indicate that the applicant's motion should fail. The first is that the former associate and all of the personnel from Baker & McKenzie who have had dealings with him have now sworn affidavits saying that there has been no disclosure concerning this case. Those affidavits were not challenged in cross-examination, although Mr Hampson for the applicant pointed out that they do not say anything about the future. Given the conduct of this matter by Baker & McKenzie, it is quite clear that the former associate is to be employed at PIAC until my involvement in this matter is completed. It is true that the termination of my involvement may be deferred for some time if any of the claims presently under consideration is successful, as many other claimants may come forward. However that is a problem which can be dealt with when it arises. For present purposes the limit of my involvement will be the delivery of judgment in connection with the thirty-four claims presently under consideration. In any event, even if it becomes necessary to resolve further claims, it is unlikely that any part of those proceedings would be compromised by the former associate's employment with Baker & McKenzie, given that his employment with me will, by then, be well in the past, and any thoughts which I may have had as to the matter will have become "merged" in my judgment. When the fair-minded observer takes into account these unchallenged affidavits, there can be no remaining suspicion concerning the fairness of these proceedings. 89 The second point is the failure by the applicant to take any point in connection with this matter before 3 July. I have referred to some of the authorities which indicate the possibility that a party may waive any entitlement to complain of perceived bias. Although some of those cases speak of waiver by standing by until after judgment, there seems no reason in principle why waiver may not be constituted by continued involvement in the proceedings for a substantial period of time after discovery of the relevant circumstances. In the present case, the applicant waited for the best part of four months. It is true that the respondent was advised of the possibility of action on numerous occasions, but despite Baker & McKenzie's demands, nothing was forthcoming until 3 July. The fair-minded observer, having regard to the correspondence since 6 March, might well reach the conclusion that the applicant's solicitors, at least, had no perception of an unfair advantage as a result of my disclosure on 6 March, but rather commenced enquiries to see whether or not they could find a basis for such a perception. Since that date, the costs incidental to some weeks of hearing have been incurred. It is difficult to see why the applicant should not be held to have elected to waive any right to relief of the present kind. 90 Thirdly, to a very great extent, our system depends upon the efforts of the trial Judge to guarantee fairness as between the parties. It is for this reason that bias or perceived bias can be fatal to a trial. Once it is conceded, as it has been here, that there is no basis for alleging bias or perception of bias on the part of the trial Judge, then the parties are very much in his or her hands. The trial Judge must closely examine his or her conscience to exclude any possibility of unfairness to either party. Where a specific incident is said to give rise to potential unfairness, the Judge must address it in considering the case. This is the primary mechanism for ensuring fairness, and it is assumed that the fair-minded observer will have faith in an unbiased Judge. This appears very clearly from the decision of the High Court in Webb. There is no reason to believe that the incident in question will result in other than a fair adjudication, based on the law and the admissible evidence led by the parties. That is a fair trial.
Outcome 91 The motion will be dismissed. I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.
Counsel for the Applicant: Mr C E K Hampson QC Mr D Gordon
Hurley
McDonald's Australia Ltd
A fair trial 53 One is inclined to assume that a trial will be fair if the rules of natural justice are observed and in particular, if it is decided fairly, by an unbiased tribunal, in accordance with law and on the properly admissible evidence received and tested in the course of the trial. Perception of a real deficiency in any of these areas might well lead to a perception of unfairness. The question of fairness of the trial is different from the question of bias. In RPS v The Queen [2000] HCA 3 at par 11, four members of the Court (Gaudron ACJ, Gummow, Kirby & Hayne JJ) said: But these are not complaints of bias or the appearance of bias; they amount to a complaint that the conduct of the trial was unfair. That is a radically different complaint and it is wrong to seek to apply tests developed in connection with questions of apparent bias in deciding whether the trial was fair. That question will turn largely on whether the accused has had a proper opportunity to advance his or her defence to the charge. 54 A similar approach was demonstrated by Kirby J in Kunnakatil v The Queen [1998] HCA 23 at par 54, where his Honour quoted with approval an extract from the judgment of the Full Court of the Supreme Court of Victoria in Re Ratten [1974] VR 201 at 214 as follows: Under our law a criminal trial is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing upon the question of guilt or innocence. Even the Crown has some degree of choice as to what witnesses it will call. And the accused is completely free to decide how he will conduct his defence. He has the right to choose what issues he will contest, what facts he will dispute, whether he will give evidence or not, whether he will call witnesses or not, and if he elects to call witnesses, which ones he will call. All these rights are fundamental to the conception of fair trial under our system of criminal justice. In conformity with this conception of fair trial, if an accused person can show that he has been prevented by surprise, fraud, malpractice or misfortune from presenting at his trial evidence of substantial importance which he desired to present … then ordinarily the fact that he has been tried and convicted without such evidence having been called involves that he has been deprived of his right to a fair trial and that there has, in that respect, been a miscarriage of justice. But on the other hand, if the reason why the additional evidence was not called is merely that the accused and his advisers made a deliberate choice not to call particular witnesses or a particular class of evidence, then obviously the accused has not been denied, but has exercised, his right to a fair trial, and there has been no miscarriage of justice of the kind described above. 55 Finally, I note the observations made by Deane J in Jago v District Court (NSW) (1989) 168 CLR 23 at 57: The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one. 56 Although this question has most commonly arisen in the context of criminal trials, there is no reason to believe that the approach is any different in civil trials. The general outline which I gave at the beginning of this part of my reasons seems broadly to coincide with the observations set out above.
(1989) 167 CLR 568
(1987) 9 NSWLR 118
(1989) 21 WAR 309
(1989) 168 CLR 23
(1983) 152 CLR 657