Kaldas v Barbour

Supreme Court of NSW|2016-12-16|Before: Garling J

Introduction

On 9 December 2016, the plaintiff, Naguib Kaldas, commenced proceedings by way of Summons against Bruce Barbour, the former Ombudsman, Professor John McMillan, the Acting Ombudsman, Ms Linda Waugh, the Deputy Ombudsman (Police), and the Attorney-General of New South Wales. The Summons seeks a variety of relief with respect to the anticipated delivery by the Acting Ombudsman of a Report dealing with Operation Prospect to the Parliament of NSW. On 16 December 2016, that Summons was amended.
On 13 December 2016, the solicitor for the plaintiff filed and caused to be served a Notice of a Constitutional Matter within the meaning of s 78B of the Judiciary Act 1903 (Cth). This Notice described the nature of the Constitutional matter as being one which affected the validity of s 35A of the Ombudsman Act 1974 (NSW) which, by its terms, prohibits civil or criminal proceedings being brought against the Ombudsman unless the Ombudsman has acted or failed to act in bad faith and leave has been given by the Supreme Court.

The Parties

A little background about the roles of the individual defendants is necessary. The first defendant, Mr Bruce Barbour, was the Ombudsman for a period of about 10 years up to 30 June 2015. He determined to conduct the investigation which has become known as Operation Prospect, and he presided over many hearings involving the taking of evidence on oath from a range of witnesses. He presided over a hearing involving the plaintiff.
On 29 June 2015, shortly prior to his retirement, a letter was sent to the plaintiff under the heading "Operation Prospect - Statement of Provisional Findings, Comment and Recommendations".
The third defendant, Ms Linda Waugh, was, at the relevant time, the Deputy Ombudsman. She corresponded with the plaintiff in that role, and supervised Operation Prospect after the departure of Mr Barbour on 30 June 2015, until the present Ombudsman and second defendant, Professor John McMillan, was appointed Acting Ombudsman for a term of 2 years on 1 August 2015.
Professor McMillan is the author of the report which is the subject of the proceedings.

Application for Recusal

By email to my Chambers dated 9 December 2016, the solicitor for the plaintiff foreshadowed an application being made that I recuse myself. The basis for the application was said to be a statement I made in my swearing in speech on 10 June 2010.
What I there said was: "Having graduated from Law School, I spent a short time as an articled clerk and solicitor at David Landa, Stewart & Company. … David Landa … was very kind to me at the firm and also after I went to the bar, including when he became the NSW Ombudsman. I commenced under his time there a professional relationship with that office which lasted over 20 years and ended only last week with a final brief from them."
Having drawn attention to that part of my swearing in speech, the email said: "In accordance with the comments of Rothman J in Attorney-General (NSW) v Bar Mordecai [2009] NSWSC 117 at [5] and [6] (citing Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 292), we wish to foreshadow that an application will be made that his Honour recuse himself from hearing this proceeding given his Honour's long-standing professional relationship with the Ombudsman, including the most recent former Ombudsman, Mr Barbour, a party to these proceedings."
When the proceedings commenced, Senior Counsel for the Ombudsman renewed his application. He made it in the following terms: "I am instructed to make an application that your Honour recuse yourself from hearing this matter on the ground of apprehended bias. The application … is brought on the basis of your Honour's previous long-standing professional relationship when your Honour was Senior Counsel, and Counsel, with the Ombudsman, the Office of Ombudsman, including the first defendant, the former Ombudsman …"
Senior Counsel pointed to the passage in my swearing in speech set out above.

Applicable Legal Principles

It is appropriate to identify some fundamental principles which are relevant. First, it is fundamental to the common law system of adversarial litigation that a trial is presided over, and conducted by, an independent and impartial tribunal. This principle is "… fundamental to the Australian judicial system": Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [3]. It is important to note that the independence and impartiality of the Tribunal is a matter both of substance and of appearance, that is, a feature of justice both being done and being seen to be done: R v Sussex Justices; ex parte McCarthy [1924] 1 KB 256 at 259 per Lord Hewart CJ.
Accordingly, the principle is that 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 the judge is required to decide": R v Watson; ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248; Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 and other cases. In Ebner, the plurality (Gleeson CJ, McHugh, Gummow and Hayne JJ) discussed the application of the apprehension of bias principle in the following terms: "8. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. 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 of 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."
A further principle which must be kept in mind is that judges have a duty to exercise their judicial function when their jurisdiction is regularly invoked and through ordinary practice they are assigned to hear cases. As the plurality said in Ebner at [19]: "Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned cases in accordance with the practice which prevails in the Court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case."
An authority in this area to which reference ought be made is Re Polites; ex parte The Hoyts Corporation Pty Ltd [1991] HCA 25; (1991) 173 CLR 78 at 87, where Brennan, Gaudron and McHugh JJ said: "A prior relationship of legal advisor and client does not generally disqualify the former advisor, on becoming a member of a tribunal (or of a court for that matter) from sitting in proceedings before that tribunal (or court) to which the former client is a party. Of course, if the correctness or appropriateness of advice given to the client is a live issue for determination by the tribunal (or court) the erstwhile legal advisor should not sit. A fortiori, if the advice has gone beyond an exposition of the law, and advises the adoption of a course of conduct to advance the client's interests, the erstwhile legal advisor should not sit in a proceeding in which it is necessary to decide whether the course of taken by the client was legally effective or was wise, reasonable or appropriate. If the erstwhile legal advisor were to sit in a proceeding in which the quality of his or her advice is in issue, there would be reasonable grounds for apprehending that he or she might not bring an impartial and unprejudiced mind to the resolution of the issue. Much depends on the nature of his or her relationship with the client, the ambit of the advice given and the issues falling for determination."

Discernment

In relation to the first step in Ebner, namely the identification of the matter which is said to give rise to an apprehension of bias, the plaintiff relies upon my previous professional relationship with the office of the Ombudsman, which has been described above. That is the only matter upon which the plaintiff relies.
In seeking to establish the second step in Ebner, namely the logical connection between the matter identified and the feared bias, Senior Counsel for the plaintiff submitted that one of the issues in the interlocutory application was the existence of a serious question to be tried as to whether a reasonable apprehension of bias arose with respect to the conduct of the first defendant, the former Ombudsman, Mr Bruce Barbour. It was said that one of the serious questions to be tried was whether or not the dealings between the former Ombudsman and the plaintiff were such as to give rise to "a serious concern in relation to the conduct of the inquiry by the Ombudsman".
Senior Counsel ultimately put that my previous longstanding professional relationship with the office of the Ombudsman may be perceived by the reasonable observer as giving rise to a subconscious influence on any decision which I might make.
Senior Counsel accepted that the previous professional relationship did not mean that I could never sit on a case involving the office of the Ombudsman, but submitted that this particular case was such that an apprehension of bias would arise and, accordingly, I should not sit to hear the matter.
The plaintiff has not advanced any basis for satisfaction of either of the two steps required to be demonstrated by the authorities including that of Ebner.
As to the first step in Ebner, as the High Court said in Polites, a previous professional relationship with a party to the proceedings is not a sufficient basis, of itself and without more, to give rise to an interest of a kind sufficient to found a reasonable apprehension of bias. There is nothing more contended for as an interest which would mandate recusal. It is now over six years since I was sworn in as a judge of this Court. Any previous professional relationship has long since ceased. The investigation into Operation Prospect commenced in late 2012 which was well after my appointment to this Court. It is not said that anything which I have done in the course of the previous relationship is relevant to Operation Prospect.
As well, the plaintiff has failed to satisfy the second step of the Ebner test. It has failed to articulate the logical connection between my previous professional relationship with the Ombudsman and the concern that I might not bring an impartial mind to the determination of the plaintiff's application for interlocutory relief. The assertion of the possibility of unconscious bias does not assist the plaintiff in satisfying the second step of the Ebner test. Of its nature, such a possibility can never be established (or disproved), but in my view in this case, particularly having regard to the passage of time since the impugned professional relationship ceased, there is no risk of unconscious bias, and a reasonable observer would not conclude that there was.

Conclusion

I am well satisfied that no reasonable apprehension of bias arises, such that a reasonable observer might conclude that I might not bring an unbiased mind to the determination of the issues presently before the Court.
It is for these reasons that on 16 December 2016, I refused the application and indicated that I would give reasons in due course.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 December 2016

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