Maxwell v Keun

REASONS FOR JUDGMENT THE COURT: Introduction The applicant seeks leave to appeal from two sets of interlocutory orders made by a judge of this Court. One issue between the parties is whether a key order was in law an "order". However, as a matter of convenience, we shall for the time being refer to them as orders. The first set of orders was made on 25 February 1998 when the learned primary judge declined to disqualify herself from hearing the principal application and ordered the applicant to pay the respondents' costs of the motion by which he had sought such disqualification. The principal application is listed for hearing (initially for four weeks) commencing on 12 October 1998. The applicant also applies for leave to appeal against further orders, made by her Honour on 2 April 1998, one of which fixed that trial date. To the extent, at least, that those orders mean that her Honour will hear the principal application, the second application depends upon the first. Factual Background The principal application concerns the use of a corticosteroid medication known as "Depo-Medrol". The applicant at first instance ("Ms Brooks") sues the manufacturer and distributor of that medication, who are the first and second respondents respectively, and two medical practitioners (who administered that medication to her), who are the third and fourth respondents. There are currently over 120 other similar proceedings pending in the Supreme Court of New South Wales. Apparently the principal application is regarded as a test case. The fourth respondent, Dr Donald Maxwell, moved the judge to disqualify herself. A notice of motion to that effect was filed very soon after the parties were informed that her Honour would be hearing the case. The factual basis for that motion can be shortly stated. The Judge has four sons, one of whom ("the son") was admitted as a solicitor in New South Wales on 20 December 1989. He commenced employment with the solicitors who represent Dr Maxwell in these proceedings ("the Solicitors") on 29 June 1992. On 1 July 1995 he was appointed as an executive partner of the Solicitors. His area of practice was primarily professional indemnity and public liability litigation, but he had some involvement with the Medical Defence Union which is instructing the Solicitors in the principal application. On 2 September 1996 the son was asked to attend a meeting with the Chairman of Partners and the Staff Partner of the Solicitors. The Staff Partner was Mr Donald Munro who is the solicitor conducting Dr Maxwell's defence. The Chairman told the son that an extremely serious matter relating to the son's conduct had arisen in relation to some of his files. He said that it appeared that the son had falsified and back-dated documents for the purposes of misleading the partners of the firm, and also possibly a client. The Chairman then asked the son for his immediate resignation, which the son proffered forthwith. By arrangement, the son left the premises within a matter of hours. After obtaining independent legal advice about whether they were under an obligation to report the matter to the Law Society of New South Wales, the Solicitors did so on 11 October 1996. A complaint against the son is pending before the Legal Services Tribunal. There is no suggestion that the son was involved in any way in the conduct of Dr Maxwell's defence. By a motion on notice, filed on 23 February 1998, Dr Maxwell asked the judge to disqualify herself on the grounds, not of actual bias, but of a reasonable apprehension of pre-judgment or, as it is often described, perceived bias. The motion was opposed by Ms Brooks. Counsel for the first and second respondents, while neither supporting or opposing the motion, submitted that if her Honour had the slightest doubt that there was a possibility of a reasonable apprehension of pre-judgment, then she should "err on the side of caution" and decline to sit. Dr Richter, the third respondent, neither consented to nor opposed the motion. The motion was heard on 24 February 1998. Judgment on the motion was reserved, initially until later that day, but then until the next morning when her Honour delivered her reasons and made the orders which are set out below. The Decision at First Instance Her Honour, after referring to Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-4; Webb v The Queen (1994) 181 CLR 41 at 74; and S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at 368-9 identified the perceived bias as being in the third category of disqualification, described in Webb as "disqualification by association". Her Honour stated that it was a matter for her to decide whether all of the circumstances which existed in the case gave rise to a reasonable apprehension that she might not bring an impartial and unprejudiced mind to the resolution of the issues in this case. In that regard her Honour said: "The association in question (called a disqualifying relationship by the Fourth Respondent), as the facts reveal in this case, is a relationship between myself and my son. My son is not, however, connected to this case in any way. He is not a party, a legal representative of a party or a witness. He is no longer in partnership with the firm of solicitors acting for the Fourth Respondent. The former and any ongoing relationship between my son and this firm is not a relationship in which it is suggested I have had any role whatever." Her Honour then declined to disqualify herself. Whether the Full Court has jurisdiction to entertain the proposed appeal? A document described as a "Notice of Contention" was filed on behalf of Ms Brooks on 10 June 1998. In that document Ms Brooks contends that her Honour's decision not to make the order sought on behalf of Dr Maxwell in his notice of motion was not a "... judgment, decree or order ..." within the meaning of those terms in s 4 of the Federal Court of Australia Act 1976 (Cth) (and thus not a "judgment" for the purposes of s 24 of that Act) or otherwise and was thus not a matter in respect of which the Federal Court has appellate jurisdiction. We do not think, strictly speaking, that Ms Brooks' document is a Notice of Contention within the meaning of Order 53 rule 13(1). However, it serves as a convenient vehicle in which to bring forward her challenge to our jurisdiction. Is it a valid challenge? We turn first to identify precisely what her Honour was asked to decide and what orders she made. The notice of motion filed on behalf of Dr Maxwell, omitting formal parts, read as follows: "The Fourth Respondent will be (sic) at 9.30am on 24 February 1998 at Queens Square, Sydney move the Court for orders:-