IOOF AUST TRUSTEES LTD v SEAS SAPFOR FORESTS & ORS No. SCGRG-96-1299 Judgment No. S249 [1999] SASC 249 - SASC 1999 case summary — Zoe

[11]

In a case such as the present where there is no allegation of actual bias, the question whether a judge who is confident of his own ability to determine the case before him fairly and impartially on the evidence should refrain from sitting because of a suggestion that the views which he has expressed in his judgment in some previous case may result in an appearance of pre-judgment can be a difficult one involving matters 'of degree and particular circumstances may strike different minds in different ways' (per Aickin J. in Shaw (1980) 55 ALJR, at p 16 ). If a judge at first instance considers that there is any real possibility that his participation in a case might lead to a reasonable apprehension of pre-judgment or bias, he should, of course, refrain from sitting. On the other hand, it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court. Once it is accepted that a judge should not automatically stand aside whenever he is requested so to do, it is inevitable that appellate courts, removed from the pressure of a possible need for immediate decision and enjoying the advantages both of hindsight and, conceivably, further material and information, will on occasion conclude that a decision of a judge at first instance that he should sit was mistaken and has resulted in a situation where one of the parties or a fair-minded observer might entertain a reasonable apprehension of bias or prejudgment. Such a conclusion does not involve any personal criticism of the judge at first instance or any assessment of his qualities or of his ability to have dealt with the case before him fairly and without pre-judgment or bias."

[49]

The last of the cases is Willis v Magistrates' Court of Victoria (1996) 89 A Crim R 273. In that case the appellant was convicted by the Magistrates Court of a criminal offence. It was submitted, on appeal, that the conduct of the magistrate gave rise to a reasonable apprehension of bias against the appellant. Reference was made to a number of matters that had occurred during the course of the trial, but the judge found that these did not give rise to a reasonable apprehension that the magistrate was not impartial. However, the judge reached a different conclusion in relation to certain matters that occurred during the course of sentencing. In sentencing submissions reference had been made to a witness who was called by the prosecution, but not asked any questions by the prosecutor and simply made available for cross-examination. When reference was made to the witness, the magistrate made a remark that appeared to mean that the fact that the witness was a client of the appellant's solicitor was a good reason for the prosecution not to call the witness. The remarks suggested that the connection between the appellant's solicitor and the witness was a reason not to trust the witness. Although the remark was made at the sentencing stage, it suggested that the magistrate may have approached his assessment of the witness improperly influenced by the attitude that he disclosed. The remark also raised concerns about the question of whether the magistrate's assessment of the appellant's evidence was affected by the fact that he was a client of the relevant solicitor. At another stage of the sentencing proceedings, when the appellant's solicitor was not in the courtroom, the magistrate made a remark to the effect that the solicitor had conducted an earlier appeal to the Supreme Court without instructions from his client. The judge was satisfied that the magistrate was accusing the solicitor of serious professional misconduct. The judge appears to have accepted a submission that the remark disclosed an antipathy towards the solicitor and that there were grounds for concluding that the antipathy had been transferred to the client. The judge's conclusion was that the magistrate's attitude to the solicitor may well have been taken into account when the magistrate came to his conclusion about the evidence of the witness referred to earlier and of the appellant. Under those circumstances the judge was satisfied that a fair-minded observer might entertain a reasonable apprehension that the magistrate might not have brought an impartial and unprejudiced mind to his determination of guilt (at 283-284).

Parties

Applicant/Plaintiff:

# IOOF AUST TRUSTEES LTD

Respondent/Defendant:

SEAS SAPFOR FORESTS & ORS No. SCGRG-96-1299 Judgment No. S249 \[1999\] SASC 249

Cases Cited (26)

IOOF AUST TRUSTEES LTD v SEAS SAPFOR FORESTS & ORS No. SCGRG-96-1299 Judgment No. S249 [1999] SASC 249 (18 June 1999)

Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337;
Santos Ltd v Pipelines Authority of SA [1996] SASC 5578; (1996) 66 SASR 38, considered.
Supreme Court Rules r75.02, referred to.
Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288;
Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41;
Re JRL; ex parte CJL [1986] HCA 39; (1986) 161 CLR 342;
Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70;
Vakuata v Kelly [1989] HCA 44; (1989) 167 CLR 568, applied.
Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530;
Galea v Galea (1990) 19 NSWLR 263;
The Queen v Lars & Ors (1994) 73 A Crim R 91;
Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd [1996] FCA 1308; (1996) 135 ALR 753;
Willis v Magistrates' Court of Victoria (1996) 89 A Crim R 273;
Australian National Industries Ltd v Spedley Securities Ltd (In Liq) (1992) 26 NSWLR 411;
S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358;
Gascor v Ellicott [1997] VR 332;
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 1488; (1997) 151 ALR 505;
Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, considered.
Yule v Junek [1978] HCA 4; (1978) 139 CLR 1;
In R v Watson Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248;
Barton v Walker [1979] 2 NSWLR 740;
Rajski v Wood (1989) 18 NSWLR 512;
Australian National Industries Ltd v Spedley Securities Ltd (In Liq) (1992) 26 NSWLR 411;
Brooks v The Upjohn Company (1998) 156 ALR 622;
Nicholson v Griffiths (1988) 143 LSJS 204;
Gas & Fuel Corp Superannuation Fund v Saunders [1994] FCA 1237; (1994) 123 ALR 323, considered.
GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710, applied.

It was not argued that the decision could not be the subject of an appeal to this Court. It is one thing to say that the judge was entitled to decide the points when he did and in the manner that he did. It is another thing to say that the decision can be appealed. The judge's decision on the questions of law that he identified has been drawn up and sealed as an Order of the Court. The Order determines that there is no ambiguity in the meaning of the clauses in question, declares the meaning of the clauses, and determines that the milling company can sell logs to a related company at a price less than the best market price. However, the Order does not dispose of any of the claims made in the proceedings. It has not resulted in a judgment for either party on any of the issues raised by the pleadings. It does, however, determine the admissibility of evidence proposed to be led by IOOF. The decision is an answer to a question of law arising in the proceedings, but arguably no more than that. That raises a doubt in my mind about whether the decision can be appealed: see Yule v Junek [1978] HCA 4; (1978) 139 CLR 1 at 14 Mason J. However, no objection to the competence of the appeal was raised. It is in the interests of all parties to have the correctness of the decision determined now. The construction decision was made by the judge on the basis that the parties would be able to test it on appeal. I therefore am prepared to proceed on the assumption that the appeal is competent, without deciding the point.

On the afternoon of 17 March 1999 counsel for IOOF made an oral application to the judge that he disqualify himself from further hearing the case. It was made without prior notice to the judge. Counsel for the defendants had been told of the application at the lunch adjournment. When the application was announced, the judge questioned whether the application was based on events of that morning. No doubt the judge had in mind the principle that a party who apprehends that there are grounds for making an application that the judge should disqualify himself cannot stand by, allow the case to continue, and then make the application at some later time and in particular after a decision adverse to that party has been made: Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568.

(1982) 149 CLR 337

(1996) 66 SASR 38

(1983) 151 CLR 288

(1994) 181 CLR 41

(1986) 161 CLR 342

(1990) 170 CLR 70

(1989) 167 CLR 568

(1976) 14 SASR 530

(1990) 19 NSWLR 263

(1996) 135 ALR 753

(1992) 26 NSWLR 411

(1988) 12 NSWLR 358

(1997) 151 ALR 505

(1978) 139 CLR 1

(1976) 136 CLR 248

(1989) 18 NSWLR 512

(1998) 156 ALR 622

(1994) 123 ALR 323

(1990) 24 NSWLR 710

(1989) 167 CLR 569

(1989) 167 CLR 571

(1994) 184 CLR 41

IOOF AUST TRUSTEES LTD v SEAS SAPFOR FORESTS & ORS No. SCGRG-96-1299 Judgment No. S249 [1999] SASC 249

At a glance

Court

Decision date

Source

Judgment (131 paragraphs)

Parties

Cases Cited (26)

IOOF AUST TRUSTEES LTD v SEAS SAPFOR FORESTS & ORS No. SCGRG-96-1299 Judgment No. S249 [1999] SASC 249 (18 June 1999)