Failure to produce the 8 June email does not constitute contempt
50I have earlier identified the principles by which contempt of court is to be ascertained. These principles have been stated by me bearing in mind the way in which Mr Jeray has framed the statement of charge. It will be remembered from my earlier recitation of the charge upon which he now relies that the failure to produce the 8 June email is alleged to have been intentional. A charge, in those terms, seems to me to attract the principle that I have earlier recited and recently summarised by Campbell JA in Markisic .
51The formulation of the requirement that an applicant charging contempt prove beyond reasonable doubt that the breach "was deliberate and not casual, accidental or intentional" is said to be referable to punishable contempt as distinct from a technical breach of an order ( Mosman Council v Kelly (No 3) [2009] NSWLEC 92; (2009) 167 LGERA 91 at [82]). So much can, with respect, be accepted. However, where, as here, a contemnor is charged, in terms, within intentional failure to comply with an obligation, the formulation of the standard articulated by Campbell JA is appropriate and must be applied in the present case.
52The evidence given by Ms Bargenquast was clear. When called upon to respond to Mr Jeray's notice to produce on behalf of the Council, her source of reference was the Serious and Substantial Complaints File into which, so she understood, all documents relevant to enquiries seeking to respond to Mr Jeray's complaint had been placed. She also searched the Council electronic records management system for documents related to matters of that kind. The 8 June email was recorded in neither the file nor on that database. Moreover, the request from Mr Greenwood that she deal with the complaint was seen by her to be a work direction to commence the process rather than a document which, in itself, was part of that process.
53As I have also recorded earlier, Ms Bargenquast did not recollect that she had received the 8 June email from Mr Greenwood. It was only in response to the request made by Mr Jeray following her cross-examination on 1 February that she had searched the email archives system enabling her to identify the document.
54I am satisfied that Ms Bargenquast did use her best endeavours to locate the documents believed to be responsive to Mr Jeray's notice to produce. The failure to identify the 8 June email was clearly an oversight. Other than to record the fact that the initial step was taken by the General Manager on 8 June by referring the matter to Ms Bargenquast, the document does not otherwise provide any substantive information directed to the enquiries made into Mr Jeray's complaint. It is understandable that the email was not seen to be a record of enquiries made into his complaint.
55In his submissions, Mr Jeray asserted that Ms Bargenquast should not be believed in giving her evidence when explaining why it was that the 8 June email was not produced. However, she was not challenged in any questioning by Mr Jeray to suggest that she was being untruthful. In the absence of such a challenge I have no basis upon which to doubt her evidence. She was cross-examined at some length by Jeray on two occasions but on each of those I consider that she gave her evidence in a forthright manner and without any apparent equivocation. The failure to produce the email was not intentional, contrary to the charge that Mr Jeray had made.
56I conclude that Mr Jeray has not established beyond reasonable doubt that the failure to produce the 8 June email prior to 4 February 2011 was deliberate and not casual, accidental or unintentional. The Council will therefore be acquitted of the contempt as charged.
Applications for recusal
57At the commencement of the hearing on 31 January, Mr Jeray made two applications. First, he sought that I recuse myself from the hearing of his proceedings. Secondly, he sought, once again, to have the hearing of his notice of motion adjourned. As will otherwise be apparent from this judgment, the latter application was unsuccessful. It is, however, to the first of his applications that these reasons are directed.
58Although not articulated in terms, the application for recusal was founded upon an assertion of apprehended bias. For reasons that will become apparent, the application was made because Mr I J Hemmings of counsel appeared for the Council on the hearing of Mr Jeray's motion.
59Mr Jeray indicated that he had viewed the Court's internet site. Through that site he had gained access to and read the address that I gave at the time at which I was sworn in as a judge of this Court on 2 March, 2010. In that speech I said (at [47]):
"47 In the context of my work environment, no period of practice at the bar has been happier than my past seven years at Martin Place Chambers. It may be the great diversity and background of its members, it may be the mix of male and female practitioners, it may the diverse extracurricular interests the members of those chambers pursue which were but some of the factors contributing to the enjoyment of my time in those chambers. Whatever the reason, it is a most harmonious and congenial group of barristers, a number of whom I count among my friends."
60Having drawn attention to this paragraph of my address, Mr Jeray identified two further matters relevant to his application. He referred to information otherwise obtained that prior to my appointment to this Court I had been the head of Martin Place Chambers, a floor of practising barristers. The second matter of relevance is that throughout that time, Mr Hemmings had been and remains a member of those chambers. In light of those matters, Mr Jeray enquired of me as to whether Mr Hemmings was my friend. He indicated that his application for recusal was founded upon the association between Mr Hemmings and me as demonstrated by the matters to which he had referred.
61Following Mr Jeray's articulation of his application, I disclosed, in Court, the following matters:
i. that Mr Hemmings had been a long time professional colleague;
ii. that our association, as fellow legal practitioners, had included membership of the same chambers for seven years prior to my appointment to this Court;
iii. that since my appointment to the bench in March 2010 my only contact with Mr Hemmings had been either as counsel appearing before me on behalf of litigants or, on a few occasions, when we had each attended meetings or functions of a professional nature involving a large number of legal practitioners who were also well-known to me; and
iv. that since my appointment I have not visited Mr Hemmings nor been visited by him on a personal basis.
Principles for recusal
62It is well settled that when a judge is requested to recuse himself or herself from the hearing or further hearing of a case, that question must be decided by the judge to whom the application is made ( Bainton v Rajski (1992) 29 NSWLR 539 at 544, 548). It is by reason of that principle that I determined the application made to me by Mr Jeray.
63The test to be applied when determining an application of the present kind is that stated by the High Court in Ebner v Official Receiver in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337. In the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, the principle is stated as follows (at [6]):
"Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver ... or necessity ... a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge is required to decide [case citation omitted]. That principle gives effect to the requirement that justice should both be done and be seen to be done [case citation omitted], a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial."
The statement of the relevant principle in that way together with its expressed rationale has been confirmed by the recent decision of the High Court in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2.
64Application of the principle to a given set of facts or circumstances also requires consideration. That consideration is reflected by the plurality in Ebner where their Honours said (at [8]):
"First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed."
65Important to the determination of Mr Jeray's application is an understanding of the knowledge that is to be attributed to the "fair-minded lay observer". In the context of the application for recusal made by Mr Jeray, knowledge concerning the operation of the legal system in this State and the appointment of judicial officers that can be attributed to the "fair-minded lay observer" is important to be considered.
66In Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272 the Court of Appeal was required to consider the refusal by a judge sitting in the Equity Division of the Supreme Court to recuse himself from hearing legal proceedings brought against two prominent Sydney law firms. The leading judgment was delivered by Priestley JA (with whom Hope and Glass JJA agreed) where his Honour approved (at 275) a statement by the trial judge expressed in the following terms:
"I do not believe that any right-minded person who knows of the manner in which the legal profession in this State is organised, and who knows of the fact that, traditionally, the judges of this State have been appointed from the ranks of the practising members of the legal profession ... could reasonably suspect that a judge who, on occasion, over a reasonably long time as a practising member of the Bar, which period, in any event, expired over nine years ago, was retained, and instructed by, a member or members of a particular firm of solicitors on behalf of clients of that firm, was, by virtue of that fact alone, incapable of bringing an impartial and unprejudiced mind to the resolution of the issues in a proceeding to which that firm of solicitors, or a party of that firm of solicitors, may be a party."
67In his judgment in Raybos , Priestley JA cited the well known passage of Mason J in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 where the latter judge had articulated two matters of present relevance, namely -
(i) that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that the judge will decide the case adversely to one party, and
(ii) while it is important that justice be seen to be done, it is equally important "that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."
68Priestley JA then returned to the topic of judicial appointment, as it pertained to the operation of the principle of apprehended bias. He said (at 276):
" ... that method of appointment means that built into the legal system is public knowledge and long acceptance of the fact that judges will often know to a greater or less degree the counsel and solicitors who appear before them. Also when, as not infrequently happens, members of the legal profession are parties to litigation, it is inevitable that their cases will be decided by other members of the legal profession. It has long been accepted that a judge should not sit on a case involving a person with whom he has a connection which might in fact or in appearance affect his impartiality; when the judge's connection is less than that there is no reason why he should not sit."
69As the judgment of Priestley JA makes clear, the system of appointment of judges in this State, including the fact that such appointments are often made from the ranks of practising barristers, is acknowledged to be attributed to the "fair-minded lay observer". That knowledge must logically extend to an understanding that, from time to time, a litigant will be represented by counsel who occupied the same set of chambers as had the judge hearing the matter prior to that judge taking judicial appointment. That circumstance alone ought not, in either fact or appearance, give rise to the reasonable apprehension which the apprehended bias test addresses.
70An application for recusal in the context of former professional association between judge and counsel was considered by Campbell JA in Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43. At [26] his Honour said this:
"The ' actual circumstances of the case ' concerning the circumstance in which barristers share chambers is that, while it provides the opportunity for the sort of friendly relations to develop that are usual between professional colleagues, those colleagues can also be ones competitors. Sharing chambers also provides a means whereby the overhead expenses of a barristers practice can be shared but that in itself produces no more closeness of relations than arises from people who share a home unit building sharing some of the overheads of that building."
71His Honour's observations are, with respect, apposite to the basis upon which Mr Jeray makes his present application. While I had a long professional and friendly association with Mr Hemmings as a fellow practitioner, I had never engaged in any business or financial association with him and my social association did not extend beyond that ordinarily arising between fellow practitioners who encountered each other in chambers on an almost daily basis. While practising at the bar, Mr Hemmings had appeared in cases with me on some occasions while on others we were separately retained by opposing parties. To the extent that we each held shares in the company holding the lease of premises in which our chambers were located, that shareholding was common to all barristers who were members of those chambers. In any event, my shares in that company had long since been sold. I should also record that I shared chambers with Mr Hemmings for only seven of the thirty three years during which I practised at the bar.
72I have earlier identified (at [63]), by reference to the judgment of the plurality in Ebner , the manner in which the principle pertaining to apprehended bias is to be applied. Mr Jeray did not, in his submissions to me, identify how it was that my professional association with Mr Hemmings logically gave rise to an apprehension that I would not impartially determine the notice of motion before me. Mr Hemmings was doing no more than appearing before me as counsel for the statutory entity against whom Mr Jeray had instituted his proceedings. The failure to articulate this "second step", as it was referred to in Ebner , is important to be noticed.
73For all these reasons I was not persuaded that my professional association with Mr Hemmings was such that it might give rise in a "fair-minded lay observer" to a reasonable apprehension that I might not decide the proceeding before me on its merits. Consequently, I declined to recuse myself from hearing the matter in response to the application made to me at the commencement of the hearing.
74A further application that I recuse myself from continuing with the hearing was made by Mr Jeray on the third and final day of the hearing of his notice of motion for contempt. The circumstances in which that application was made must be briefly stated.
75I have earlier identified the circumstances in which the 8 June email was provided to Mr Jeray and subsequently included in the evidence upon which he sought to rely. However, for the purpose of addressing this second application for recusal, some further facts need to be stated.
76On 4 February when Mr Jeray was given leave to read the further affidavit to which the 8 June email was annexed, he indicated that not only would he rely upon that email for the purpose of his case but that he would not proceed to make submissions until Ms Bargenquast was called to enable him to further examine her. No prior notice of this position had apparently been given to the Council. Ms Bargenquast was then at work in Katoomba having been excused from further attendance on 1 February. Notwithstanding these circumstances, Mr Jeray was adamant in his claimed entitlement to question Ms Bargenquast further.
77In considering his application, I asked Mr Jeray why it was critical to his case that Ms Bargenquast be recalled. In particular, I enquired of him as to the nature of the evidence sought to be adduced from her in the event of her recall. Having made the enquiry, Mr Jeray requested that I recuse myself from the further hearing of the matter. As I understood his application, he asserted that by requiring him to answer such a question in the presence of the Council's legal representatives, I was providing them with an advantage that was inappropriate, apparently because they could have disclosed in advance with Ms Bargenquast the nature of the further questioning to which she might be subject in the event that I required her to be recalled.
78I indicated to Mr Jeray that I had posed the question because, save for the further affidavit that he had sworn and which I had allowed him to read, his evidence had closed with the consequence that considerable inconvenience and delay would be occasioned by further adjournment to allow Ms Bargenquast to attend. I pointed out that the email of 8 June was before me (having been annexed to the affidavit he had sworn on 4 February 2011) and the fact of its recent discovery was itself a matter that may be relevant to his case. The purpose of my question was to gauge the likely importance to Mr Jeray's case of any further evidence likely to be given by Ms Bargenquast.
79Mr Jeray declined to respond to my question. It was then that Mr Hemmings, on behalf of the Council, volunteered that arrangements would be made to have Ms Bargenquast brought to Court as soon as possible that day but necessitating an adjournment of about one and a half hours to allow this to occur. Ultimately, Ms Bargenquast did attend Court and she was further cross-examined by Mr Jeray.
80I did not consider that posing the question of which Mr Jeray complained might reasonably give rise to an apprehension of bias on my part, having regard to the principles that I have earlier discussed. The "fair-minded lay observer" is taken to have knowledge of the actual circumstances of the case giving rise to the application for recusal ( Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 87. Relevantly, those circumstances would include:
(i) the fact that the evidence in the proceedings had closed and Ms Bargenquast excused;
(ii) that no advance notice had been given to the Council requiring the further attendance of Ms Bargenquast at Court;
(iii) that further delay in the hearing of the proceedings would be occasioned by requiring her attendance on another day;
(iv) the hearing of the motion for contempt had already been delayed and prolonged beyond the time that would ordinarily be taken to hear a matter of that kind; and
(v) as an indulgence was being sought by Mr Jeray, some justification was appropriate to be sought so as to assess the potential significance of the further evidence to the case being made by Mr Jeray.
81Having regard to all the circumstances attending Mr Jeray's second application for recusal, I was not persuaded that my question to him on 4 February might give rise in the "fair-minded lay observer" to a reasonable apprehension that I might not decide Mr Jeray's motion for contempt on its merits.
Costs
82When making final submissions to me, both Mr Jeray and the Council made submissions as to the payment of costs. In the event that it was acquitted of the charges of contempt and Mr Jeray's notice of motion dismissed, the Council seeks its costs. In proceedings of this kind the general principle is that costs follow the event. UCPR 42.1 so provides "unless it appears to the Court that some other order should be made as to the whole or any part of the costs."
83Mr Jeray opposes making an order for costs against him. He does so on two bases. First he submits that as the motion is interlocutory, any order for costs ought to be deferred until the final determination of the principal proceedings. While I can accept that in some interlocutory applications of a procedural nature, it may be appropriate to reserve costs until proceedings are finally determined, I do not regard a motion charging contempt to be in that category. The determination of such a motion is discrete from the principal proceedings in that the determination made on the motion does not directly impinge upon the determination to be made in the principal proceedings.
84Secondly, Mr Jeray argues that his proceedings have been brought in the public interest and thus the discretion of the Court should be exercised against the making of a costs order. In this regard he relies upon LECR 4.2(1) that provides as follows:
"4.2 Proceedings brought in the public interest
(1) The Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest."
85The principles that attend the exercise of discretion when reliance is placed upon LECR 4.2 have been discussed by Preston CJ in Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Mineral Resources (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280. His Honour said at ([13]):
"A review of the decisions on costs reveals that courts have used, in effect, a three step approach in determining whether to depart from the usual costs rule: first, can the litigation be characterised as having been brought in the public interest?; secondly, if so, is there 'something more' than the mere characterisation of the litigation as being brought in the public interest?; and, thirdly, are there any countervailing circumstances, including relating to the conduct of the applicant, which speaks against departure from the usual costs rule?"
86His Honour then proceeded to detail each of the three steps that he had identified. Of present relevance is the second step that requires "something more" than the mere assertion that litigation has been brought in the public interest. That additional ingredient must distinguish the matter beyond the mere assertion by having regard to the nature, extent and other features of the public interest in a particular case. It could, for example, be that the question sought to be litigated had some particular significance for environmental law.
87I accept that Mr Jeray does not bring these proceedings for personal gain but rather to correct a wrong which he perceives to have been committed by the Council. That wrong is asserted to be the manner in which the Council maintains its records and the extent to which those records are made available to a member of the public seeking to inspect them.
88No evidence has been adduced by Mr Jeray to indicate the extent of the "public interest" that he represents. He does not identify any organisation of which he is a member nor the number of those who have grievances of the kind that Mr Jeray claims.
89Moreover, whatever public interest may be represented in seeking to redress the poor administration of the Council claimed by Mr Jeray, I do not perceive any public interest in pursuing the present notice of motion for contempt. Despite the voluminous evidence upon which Mr Jeray sought to rely, ultimately the asserted contempt turned upon the failure to produce one document which, in the context of Mr Jeray's principal proceedings, would not appear to significantly advance his case. These circumstances would militate against exercise of the discretion afforded by LECR 4.2.
90Furthermore, it was not until the final day of hearing that Mr Jeray informed both the Court and the Council that he would no longer press the first of his two contempt charges directed to what occurred before Pepper J in July 2010. The Council's written submissions demonstrate that significant effort had been made in addressing the abandoned charge.
91In these circumstances, I do not propose to exercise the discretion available under UCPR 4.2. Mr Jeray will be required to pay the Council's costs of his notice of motion.
Orders
92The orders that I make are therefore as follows:
- The respondent is acquitted of each of the charges that are the subject of the statement of charge appended to the applicant's notice of motion of 1 October 2010.
- The applicant's notice of motion dated 1 October 2010 is dismissed.
- The applicant is to pay the respondent's costs of the notice of motion dated 1 October 2010 in so far as that notice of motion charged the respondent with contempt.
- The exhibits may be returned.