John Holland Rail Pty Ltd v Comcare

REASONS FOR JUDGMENT 1 The applicants (collectively, "John Holland") seek leave to appeal from an order made on 2 March 2011 by Bromberg J. The application is opposed by the respondent, Comcare. His Honour refused to disqualify himself from the hearing of Comcare's application, in which Comcare seeks declarations of contravention of the Occupational Health and Safety Act 1991 (Cth) and pecuniary penalties against John Holland ("the principal application"). The primary judge rejected the application to disqualify himself and gave reasons for his decision ("reasons"): Comcare v John Holland Rail Pty Ltd (No 3) [2011] FCA 164. 2 The trial of the principal application initially was listed for hearing to begin Monday, 7 March 2011 and estimated to continue for 14 days. At the conclusion of John Holland's submissions at the hearing of the leave application, we were informed that the hearing of the principal application had been adjourned to 15 March 2011 due, inter alia, to the leave application. The determination of the leave application nevertheless remains a matter of some urgency. 3 His Honour's reasons include (at [9]) the following statement he made at the commencement of the application for recusal on 24 February 2011, which sets out a number of relevant facts: I have a copy of the respondent's submissions provided to me last night. That is, the submissions in support of the application that I should recuse myself from the further conduct of this proceeding. At paragraph 63 of those submissions the following is said and I quote: The docket judge when the parties next came before him on 23 February 2011 did not inform the respondents of what had been said to his associate by Comcare in the communications made on 11 and 14 February 2011. There having been private communications, the docket judge was required as a matter of fairness to give a full account of precisely what had been said in the course of those private communications - and the paragraph refers to Re JRL and R v Fisher. The paragraph asserts that as at 23 February 2011 I was aware that there had been communications between my associate and the solicitor for the applicant which had occurred without the prior knowledge or consent of the respondents or their solicitors. The submission, it seems to me, further asserts that those conversations dealt with matters of substance, that is, information or allegations which are material to the substantive issues in the litigation. I was not as at 23 February 2011 aware that any conversation, without the prior knowledge and consent of the respondents, had taken place between my associate and the solicitor for the applicant relating to any matter let alone a conversation that dealt with matters of substance. On 14 February 2011, shortly before my associate had communicated with the parties by email of that date, I determined that a mention should be convened. I did so on the basis that I was informed by my associate that he had spoken to the applicant's solicitors and was told that there were issues that the applicant wished to raise at a mention hearing and that my tentative availability had been communicated, but that the parties had not yet agreed a convenient date and that the applicant was pressing for a date. I do not recall that the issues that were sought to be raised were identified to me. I instructed my associate to send an email to the parties setting out my available dates and seeking their agreement on a convenient date with my usual qualification that if no agreement was reached, the Court would determine a convenient date. I was not aware at that time nor aware prior to reading yesterday the affidavit filed in support of the motion that the respondents were, at any time, opposed to the matter being listed for mention. No communication of that kind was made to the Court so far as I am aware. I had assumed that if there had been any opposition to a mention hearing being convened that would have been communicated to my associate. Having read the affidavit in support, I asked my associate to inform me of the content of any conversations he had with the solicitor for the applicant relating to the mention hearing. He has advised me that there were two conversations. The first occurred on 10 February 2011 and the content of it is recorded in a file note. The second conversation occurred on 14 February 2011, but no file note is available. The file note of the conversation of 10 February 2011 is in the following terms. It is dated 10 February 2010, but I'm advised that that is an error. It sets out the names of the parties and it identifies a conversation with Mark Branagan of Thomsons Lawyers and it provides his contact phone number. The note says and I quote: Comcare listed for trial 7 March. May need another directions hearing, but an informal request. Canvassing whether any dates may be available next week. I indicated it is his Honour's preference that parties confer and work out timetabling and only if there are disputes of substance, then an application for directions be pursued. I indicated there was an appeal hearing next Wednesday and, otherwise, the other days may be possible pending his Honour's and the court's other commitments. He said he would confer with OS [which I take to be and my associate tells me is "other side"] and get back to me. As to the conversation of 14 February 2011, I am advised by my associate, Mr Coyne, that the applicant's solicitor, Mr Branagan, introduced himself and said words to the effect, "That we still need a date for a mention." Mr Coyne asked whether he had contacted the other side. Mr Coyne recalls that Mr Branagan said he had, but can't recall whether he was told anything about the content of that communication. Mr Coyne asked why a mention was needed and was told there were various issues going to the running of the trial. Mr Branagan listed about three matters by subject matter only. Mr Coyne thinks one of those subjects listed was the subject of discovery, but he is not sure. He can't recall the nature of the other subject matters that were listed. Mr Coyne told Mr Branagan that he would confer with the judge and advise the parties. I should state two further matters. Firstly, there is a standing instruction in my chambers that communications between my chambers and practitioners occur in accordance with the approach set out at paragraph 39 of the decision in R v Fisher. That decision is provided to my associates at the commencement of their engagement. They are asked to read it and do so. Secondly, I was not aware when yesterday's mention commenced of what issues were to be raised. I had one issue in mind to raise and that was that the trial is listed for 14 March 2011 which is a public holiday. Now, do the parties seek any time to digest those matters or are you prepared to make your submissions now? 4 As appears from his Honour's reasons, although there is much common ground, some facts were either disputed or uncertain, including the number and dates of the conversations between Comcare's solicitors and the associate, and the extent to which the subject matter of the proposed hearing was disclosed or discussed. 5 It is useful to set out in full the letter of a solicitor for Comcare dated 15 February 2011 to John Holland's solicitors in relation to those issues: … Dear Sir Comcare v John Holland Rail Pty Ltd & Anor I refer to your letter dated 14 February 2011. For your information, I rang Justice Bromberg's Associate on Friday, 11 February 2011 and asked him to nominate available dates for a directions hearing in advance of the trial. I specifically did not disclose the purpose of the directions nor did I specify making any application, refer to any issues in dispute or the reason for listing other than to say that there were some outstanding issues that would require directions prior to the trial. The Associate requested that I seek your advice as to a convenient date and this was done in my letter to you dated 11 February 2011. In that letter we confirmed that we would be seeking directions from Justice Bromberg and requested your advice as to a convenient date. As you did not respond to our request, I rang the Associate at 12.08pm on 14 February 2011, confirmed that there was no response and requested that the Court nominate available dates for the parties. Our correspondence and the Court's email of 14 February 2011 offering alternative dates confirmed that no hearing date was or had been set by the Court. Telephone contact with the Judge's Associate to ascertain an available date for directions is entirely appropriate and does not constitute improper conduct. Your assertions that there has been any attempt to undermine the impartiality of the Court are absurd and do not warrant further comment. Further, we note that you are seeking to file Outlines of Evidence and provide late discovery in breach of previous Court orders. If you propose to pursue these matters (to which we object), it is a matter for you to file any notice of motion and affidavit material so as to obtain permission of the Court. We will of course provide appropriate documents such as a notice of motion and affidavit material if we consider that it is necessary to pursue formal orders as required by the Federal Court Rules. We confirm that the Court has listed directions on 23 February 2011 at 9.30am. Yours faithfully THOMSONS LAWYERS 6 Save for the above matters, the facts are sufficiently set out in his Honour's reasons at [12] to [23]. 7 The leave application was not, initially, accompanied by a draft notice of appeal as is customary in making such an application. In the course of the hearing, counsel for John Holland handed up a draft notice of appeal in the following terms: 1. The learned primary judge erred in failing to disqualify himself from the further conduct of the proceeding, including the trial. 2. The learned primary judge ought properly to have found that in the circumstances of this case he was disqualified from the further conduct of the proceeding, including the trial. 8 The draft notice of appeal is deficient as it does not conform with Federal Court Rules (Cth) O 52, r 12(1) and Form 55. In particular, it does not clearly identify the grounds of appeal. 9 Before his Honour, John Holland contended that his Honour was aware of a communication between his associate and a solicitor for Comcare, made without prior knowledge or consent of the solicitor for John Holland. It argued that those circumstances gave rise to a reasonable apprehension that his Honour might not bring an impartial mind to the determination of the application. Further, John Holland argued that by making the statement, which drew conclusions of fact about the circumstances, his Honour had become a witness in his own cause. That factor separately gave rise to a reasonable apprehension of bias. His Honour rejected those contentions for the reasons he stated (at [34] to [77]). It is unnecessary to repeat them. 10 Leave to appeal will be granted if, in all the circumstances, the judgment from which the appeal is sought to be brought is attended with sufficient doubt to warrant it being reconsidered by the Full Court and, further, where substantial injustice would result if leave were refused and the decision was erroneous. 11 As initially propounded before us, John Holland's argument apparently assumed (contrary to the analysis in relevant authorities) the existence of a general rule that any unilateral communication by a party with a judge's chambers is a serious impropriety the acquiescence in which, by an associate, could give rise to a reasonable apprehension of bias in the judge. 12 The rule is that a judge should not receive any communication from anyone concerning a case that the judge is to decide, made with a view to influencing the conduct or outcome of the case. See, for example, Re JRL; Ex parte CJL (1986) 161 CLR 342 ("Re JRL") at 346 (Gibbs CJ) and 350 (Mason J), both citing Kanda v Government of Malaya [1962] AC 322 at 337 and Reg. v Magistrates' Court at Lilydale; Ex parte Ciccone [1973] VR 122 at 127. In this context, communications made by one party without the knowledge of the other are governed by the principle that a judge should disqualify himself from hearing a matter where a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the issues in the case: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 ("Ebner") at 344; British American Tobacco Australia Services Ltd v Laurie (2011) 273 ALR 429; [2011] HCA 2 ("British American v Laurie") at 464-5, [139]-[140]; Re JRL at 351. This is the apprehension of bias principle. 13 In the course of argument, counsel for John Holland qualified the above submission, contending that a unilateral communication between a party (or practitioner) and judge's chambers would give rise to a reasonable apprehension of bias, unless it were established by affidavit evidence (or, presumably, a similarly high degree of proof) that the unilateral communication related solely to procedural or practical matters. We return to this submission hereafter. 14 Alternatively, John Holland submitted that, in the present case, it was a necessary inference that the unilateral communication related to a matter of substance from the fact that his Honour, on 26 May 2010, having stated that he was reluctant to fix a further directions hearing because he was reluctant to bring the parties to court unless a directions hearing were really necessary and that presently, he anticipated that any matters which arose could be dealt with over the telephone, then stated that "if there is a need for directions you've got leave to apply…and you could approach my chambers if there is a real need to deal with something of substance of course". 15 We reject that submission. It is apparent, on a fair reading, that his Honour was reserving liberty to apply for a directions hearing in the event that either party considered that there was a sufficient need for a directions hearing. 16 John Holland further submitted that it might reasonably be inferred from the associate's file note (referred to above at para 3) that Comcare's solicitor had in fact discussed matters of substance with the associate and that Comcare's solicitor may have reflected adversely on John Holland by asserting that John Holland had failed to respond to him. 17 We reject that submission. It could not reasonably be inferred from the mere identification of topics for the hearing that the merits or substance were discussed (or indeed, relayed to the judge). Further, even if the statement by Comcare's solicitor that John Holland had failed to respond were made and carried with it some adversely criticism of John Holland, there is no evidence that that statement was brought to the judge's attention. Even assuming that the statement was conveyed to the judge by his associate, the fair-minded lay observer could not form the view that the judge, having had the solicitor's statement conveyed to him, would be influenced by it in a way damaging to John Holland's interests in the litigation. The necessary link is not there: compare Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48 at 66; British American v Laurie at [141]-[146]. 18 Finally, John Holland advanced a narrower submission to the effect that, in the particular context of this case, the unilateral communication with the judge's chambers (unless strictly and formally proved to relate only to a procedural matter) founded a reasonable apprehension of bias which had not been dispelled by any subsequent explanation or circumstance. 19 In summary, John Holland submitted that, although there was no direct evidence that the unilateral communication with the judge's associate involved any discussion of merits or substance, or that if there were such an impermissible discussion, the associate conveyed any of it to the judge, an inference of a reasonable apprehension of bias arose from the following: (a) unilateral communications occurred between Comcare's solicitors and the judge's associate, and a hearing date for directions was consequently listed shortly thereafter; (b) Comcare's solicitor, by letter dated 15 February 2011, disavowed disclosing in his communication with the associate anything other than that there were some outstanding issues that would require directions prior to the trial; (c) the primary judge on 24 February 2011 made a statement which indicated, inter alia, that his associate recalled that some subject matter for the directions hearing was identified, and exposed some conflict between the associate's account and that of Comcare's solicitor over whether there were two rather than three conversations, the date of one conversation and the degree to which the subject matter of the proposed directions hearing was disclosed or discussed; (d) the proceeding was a civil penalty proceeding; (e) the primary judge had, in October 2010, declined the applicant's request that its strike out application dated 14 October 2010 be heard promptly or forthwith, and instead determined that it be deferred to the trial; (f) Comcare, as a government instrumentality, was not an ordinary civil litigant but bore the elevated obligation of fairness required of a model litigant; (g) no notice of motion was filed by Comcare and the reason for, subject matter of, or orders (if any) to be sought at the directions hearing were never properly notified or clarified to John Holland; and (h) the primary judge responded differently to, on the one hand the hearing of John Holland's strike out application (which he deferred) and, on the other hand, Comcare's application for a directions hearing (which he promptly fixed), albeit John Holloway conceded that the two applications were very different in nature. 20 John Holland further submitted that neither the letter of Comcare's solicitor dated 15 February 2011, his Honour's statement, nor any other circumstance dispelled the reasonable apprehension of bias which had arisen. 21 We reject those submissions. We are not persuaded that the above matters or circumstances, individually or collectively, could give rise to a reasonable apprehension of bias on the part of a fairminded lay observer. John Holland's argument, in its various articulations, depended on a distorted construction of the reasoning in cases such as R v Fisher (2009) 22 VR 343 ("Fisher"), on which it relied, and a number of associated false premises. 22 As already stated, the authorities do not support the proposition that there is any necessary impropriety if a party or practitioner communicates unilaterally with a judge's chambers. Whether or not such a communication is improper depends on all the circumstances, including, principally, its nature, subject matter, and perhaps, its sequence and extent. There is no impropriety in a party's unilateral communication with chambers in relation to procedural, administrative or practical matters, although a sustained sequence of communications not circulated to the other parties, even in relation to matters of this kind, could, at a certain point, become unprofessional or improper in the absence of some good reason: see, for example, Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 540. 23 On the other hand, save in the unusual circumstances warranting an ex parte application, it is clearly improper for parties or their practitioners to attempt to communicate unilaterally with a judge's chambers in relation to the substantive issues in the litigation. Every communication of this kind must be circulated to, or made in the presence of, the other parties (unless the other parties have previously consented to its unilateral communication to the judge: see Fisher at 352). Breach of that principle is not only an impropriety on the part of the party making the communication but may, in certain circumstances, found, or be a factor contributing to, a reasonable apprehension of bias, alternatively, lack of procedural fairness, on the part of the judge. It does not follow from this, however, that the mere making of a unilateral communication raises a presumption of impropriety (as John Holland's argument assumed), thereby casting on the parties involved (including the practitioner, chambers staff who received or engaged in the communication and, in some cases, the judge) an onus to prove the contrary by means of affidavit or a similar level of proof. In the present case, moreover, the mere fact that Comcare's solicitor declined to make an affidavit setting out his conversation with the judge's associate could not make out a case for apprehended bias that did not otherwise arise. 24 Further, to found a reasonable apprehension of bias, it would ordinarily be necessary to establish, at least, that the impugned material was received by the judge personally. In Fisher, for example, it was clear that the associate relayed an improper unilateral communication to the judge, who subsequently revoked the defendant's bail before affording him a sufficient hearing. 25 Chambers staff are powerless to prevent the forwarding of unsolicited materials, emails, correspondence or the making of telephone calls to chambers. On occasion, it is also necessary or convenient for chambers staff to initiate unilateral communications, such as inquiries about dates, the filing of materials or similar matters. It is generally not apparent whether the content of communications received in chambers is appropriate for transmission to the judge until a staff member has made a preliminary examination of written material or, if the communication is oral, has listened to it for at least some time. Similarly, it may not be immediately apparent to chambers staff that a written communication has not been circulated to other parties. 26 Under the docket system prevailing in the Federal Court, effective communication between the parties, their legal representatives and the court is fundamental for efficient case management by the docket judge. Chambers staff are, in the ordinary course, well aware of the need to assess communications forwarded to chambers and to manage the transmission or, where necessary, interception of, material and information directed to the judge, to avoid the actual or apprehended compromising of the judge's impartiality. 27 In this context, the receipt of an improper unilateral communication by an associate or other member of chambers staff is, from time to time, unavoidable; and does not, in itself, involve any impropriety or breach of duty on the part of chambers staff, although their continued engagement or participation in, or transmission to the judge of, such communications may, of course, involve impropriety or misjudgement. 28 In summary, the unilateral communication of objectionable material to chambers staff is not tantamount to its receipt by the judge, is unavoidable and occurs from time to time, involves no necessary impropriety on the part of the judge's chambers staff and is not, in itself, the basis for a reasonable apprehension of bias in the judge. Of course, the prevalence of unilateral communications between the litigants, their lawyers and chambers also requires litigants, their lawyers and court staff to be vigilant in ensuring that the proper procedures are observed. We agree generally with the observations of the Court in Fisher at 352 as to the prevalence of and the caveats applicable to unilateral communications between litigants, their lawyers and chambers in modern litigation. 29 In the present case, John Holland relied not only on the unilateral communication to the associate but also on the resultant fixing of a directions hearing, which allegedly disclosed differential treatment as John Holland's application for a hearing of its strike out application prior to trial was refused. John Holland argued, implicitly at least, that such a consequence bespoke a want of evenhandedness. As noted above, however, the judge had made clear that there was general liberty to apply for a directions hearing. It was, unsurprisingly, invoked for matters arising shortly prior to trial and, as John Holland conceded, its strike out application was of an entirely different character. Comcare's solicitor then made an unambiguous and comprehensive written denial of raising issues of substance with the associate. 30 Such circumstances could not, in our view, raise any reasonable apprehension of bias on the part of a fair minded lay observer. Nevertheless, at the hearing of the disqualification motion, his Honour made the statement, set out at para 3 above, noting some discrepancies (none of which supported an inference that matters of substance were discussed). The making of this statement was a matter for his Honour and consonant with the authorities: compare Re JRL at 351. His Honour also made his associate available for examination in court. John Holland did not, however, examine him. It is incumbent on the party alleging bias to show "a substantial ground" for alleging that the judge is disqualified: see Ebner at 348. In this case, there was no substantial ground shown. 31 The calling of a judge's associate to give evidence of the provision of statements by a judge's associate, in the context of an application that a judge disqualify himself or herself for apprehended bias, raises a number of difficult questions and potential problems. We heard no submissions on those questions. It would, therefore, be inappropriate to address them here, save to observe that the circumstances of this case did not, on any view, call for the judge's associate to be available for examination in court if such a course were otherwise open. 32 From the correspondence referred to in argument before us, it appears that John Holland's real cause for complaint in this matter was the seemingly unnecessary opacity of Comcare's communications with it about the directions hearing. In our view, however, the communication problems between the parties' legal representatives (to which both sides apparently contributed) at no stage constituted or ripened into a legitimate basis for a reasonable apprehension of bias in the judge. 33 The applicant further submitted that his Honour misapprehended and misapplied the test for disqualifications on grounds of apprehended bias, as propounded by the High Court in Ebner. John Holland relied in particular on paragraphs 57 and 65 of the primary judge's reasons. 34 It is clear, however, from the reasons, read as a whole, that his Honour fully understood and properly applied the correct test. Moreover, as the Full Court has recently observed in Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 at [27] to [28]: The applicant challenged his Honour's formulation of the test for apprehended bias. In this context we note that, although the test for apprehended bias is ordinarily the same wherever it arises, the precise language used in applying the test has frequently varied depending on the context in which it falls to be applied: compare Laws v ABT [Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70] at 99-100; Re JRL at 352; Ebner at 344 [6]; and Re Polites; Ex parte the Hoyts Corporation Pty Ltd (1991) 173 CLR 78 ('Re Polites') at 85-7 and 90. It is true that the use of the word "must" in the statement of the test in his Honour's reasons for judgment indicates a degree of certainty that is higher than the threshold identified in Ebner. In Ebner at 344 [6], the use of the word "might" in the first limb of the test (as well as the second) connotes the lesser possibility than the word "must". It is, however, important to focus on his Honour's application of the test, rather than overemphasize possible semantic deficiencies: compare McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504 at 526 [111]-[114] per Basten JA. Further… the "double might" test in Ebner is not inconsistent with the prejudgment "incapable of alteration test" in Jia Legeng. That is, the reasonable apprehension that "a fair-minded lay observer might" have is that the mind of the judge might be "incapable of alteration"…