McKenzie v Cash Converters International Ltd

B Further Procedural observations 6 Although the form of order sought may have been heterodox (see Barton v Walker [1979] 2 NSWLR 740 at 749E per Samuels JA) and the application ultimately unsuccessful, the issue of apprehended bias was raised both promptly and in accordance with the procedure explained by Rothman J in Attorney-General of New South Wales v Bar-Mordecai [2009] NSWSC 117. At least in my recent experience, it appears some practitioners are unaware of this procedure. It is useful to restate it. As Rothman J explained at [3]-[7]: … I should make some comment as to procedure … One cannot expect a self-represented person to appreciate the process by which apprehended bias is properly raised, but counsel should and, unless the Court sets out the practice, unrepresented litigants will never find out. The Court of Appeal has previously described the orthodox method of raising with a judicial officer the question of apprehended bias. The relevant passage is cited, without criticism as to practice, by the High Court of Australia in Livesey v the New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 292. In Livesey there was an application made by counsel relating to apprehended bias in which counsel, together with counsel to whom they were opposed, approached the judges in chambers to notify them of the application to be made and its basis. That is the usual practice, when legal practitioners are involved in an application of that kind and non-compliance with it ought to be criticised. In the case of a person, who is not represented by a legal practitioner such person may not have either the capacity or the knowledge associated with the means by which she or he might, together with her or his opponent, approach a judicial officer and deal with the matter in chambers, prior to the Court being convened. It is, for such a person, at least, incumbent upon the person, once they are aware, or ought to be aware, of the judicial officer who is sitting, for the person to notify the judicial officer through the judicial officer's associate of the intention to make application for the judicial officer to disqualify himself or herself and the basis of that application. This is a courtesy, but it is not simply a matter of courtesy. Such notice aids in the administration the justice. It allows the other party, to the extent necessary, to be represented by a different counsel, if the application were to relate to a relationship between the judge and counsel, for example, and it allows the judicial officer to understand the nature of the application and to be prepared for it, prior to it being agitated in Court. That aids the administration of justice. 7 After the issue of a potential application was raised, I indicated a date upon which any application could be heard and an interlocutory application, seeking the order I described above, was thereafter filed and moved upon. 8 The only evidence read on the application was that of a solicitor for Cash Converters, Mr Peter Butler sworn on 3 December 2018. The applicant took the view that she had "no objection to [me] hearing the whole of the matter". By this course, the applicant indicated to the Court that the applicant did not regard it as being inconsistent with her fiduciary duty to group members, to decline to make an application for disqualification. I will return to this point below, but first it is appropriate to turn to the basis of the application.

C The basis of the application in more detail 9 On 19 November 2018, the parties to this proceeding (McKenzie Proceeding) received an email from the Associate to the docket judge confirming that the settlement approval of the McKenzie Proceeding had been allocated to my docket. The following day, the solicitors for the applicant, Maurice Blackburn, wrote to the solicitors for Cash Converters, Herbert Smith Freehills, informing them that prior to my appointment as a judge, as senior counsel, I had provided advice to Maurice Blackburn in relation to what was described as the "Cash Converters Qld class actions" and had previously advised and appeared in another proceeding against another entity or entities within the Cash Converters group of companies. In the light of this information, Maurice Blackburn asked Cash Converters' solicitors to confirm whether Cash Converters had any difficulty with me determining the settlement approval application. Cash Converters did have such a difficulty, which led to the present application. 10 What has emerged in the evidence is that the solicitors for Cash Converters in the McKenzie Proceeding, also act for the respondents in another Part IVA proceeding, Lynch v Cash Converters Personal Finance Pty Ltd (NSD900/2015) (Lynch Proceeding). Similarly, Maurice Blackburn also act for the applicant in the Lynch Proceeding. Different companies in the Cash Converters group of companies are respondents to the two proceedings. Although the picture is not entirely clear, it also appears there is at least some overlap of group members between the two proceedings. 11 Although the parties are different, there are similarities between the two proceedings. In broad summary, the cases concern the consequences, when viewed in the context of a detailed legislative regime for the provision of credit, of the so-called "brokerage model" which was apparently implemented by Cash Converters and related companies in Queensland from mid-2008. A common allegation to both proceedings is that the "brokerage model" adopted by different Cash Converters entities contravened the applicable legislation because the brokerage fee, together with the interest and the other fees and charges exceeded the statutory cap, and was unconscionable. 12 The important distinction between the proceedings is the specific type of lending involved. Although both concern unsecured lending, the Lynch Proceeding relates to personal loans and the McKenzie Proceeding to cash advances. The personal loans involve comparatively higher amounts and longer lending terms than the cash advances but, in absolute terms, the amounts involved on an individualised basis, in both proceedings, are modest. 13 As noted above, Maurice Blackburn informed Herbert Smith Freehills that in early 2015, I was briefed by Maurice Blackburn on behalf of a client of that firm and that I provided a prospects advice and settled a draft statement of claim in a proposed proceeding against the companies which later became the respondents to the Lynch Proceeding. I was never briefed in the McKenzie Proceeding and never briefed on behalf of Mr Lynch, and the Court record in the Lynch Proceeding reveals that when it was commenced on 30 July 2015, the "pleading was prepared by Rachel Francois of counsel and Miranda Nagy, special counsel, Maurice Blackburn". Ms Francois had been briefed as my junior when I had been briefed on behalf of another client of Maurice Blackburn; Ms Nagy was one of my instructing solicitors. Although the record is inconsistent with me settling the statement of claim in the Lynch Proceeding (and, as senior counsel, I would not have drafted it), it seems reasonable to infer, in all the circumstances, that the draft statement of claim I did settle would have pleaded a form of claim which was similar to that subsequently prepared by Ms Francois and Ms Nagy on behalf of their then client, Mr Lynch. 14 After the information as to my involvement in the proposed (but never filed) proceeding against certain companies in the Cash Converters group (Proposed Proceeding) was conveyed, Cash Converters requested a copy of the brief I had received in 2015 together with a copy of my advice (which, in fact, would have been an opinion). These documents were not provided, and Maurice Blackburn indicated that they did not have instructions to waive privilege in relation to that material. This is unsurprising as, obviously enough, neither Ms McKenzie nor Mr Lynch could provide such instructions. 15 In the light of this, three matters were relied upon to form the basis of the application, all of which concern my involvement in the Proposed Proceeding which involved similar factual matters: the first, is that I received material by way of a brief and instructions, and the content of that material is not disclosed; the second, is that I advised on prospects of the Proposed Proceeding, and "no one knows the content of the advice"; and the third, is that I settled a draft statement of claim in the Proposed Proceeding. 16 Before considering these matters (Section F), it is convenient to: (a) make mention of the principles that inform my determination as to whether I should disqualify myself (Section D.1); (b) deal with aspects of the substantive application (Section D.2); and (c) summarise the knowledge that should be attributed to a hypothetical observer (Section E).

D.1 Disqualification for apprehended bias generally 17 The usual starting point for considering the principled approach to disqualification applications is Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ), where it was held 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. 18 There is often arid debate in applications of this kind as to whether the Ebner test is undemanding or creates a "low hurdle". The shorthand of the "two might" test is frequently invoked. This case was no exception. 19 Irrespective as to whether one characterises the test as undemanding, balanced against it, of course, is the well-established proposition that a judge should not disqualify himself or herself on the ground of bias or reasonable apprehension of bias unless "substantial grounds" are established: Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at 233 [36] (McHugh, Kirby and Callinan JJ), see also R v Watson; ex parte Armstrong (1976) 136 CLR 248 at 262 and British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283 at 305 [45] (French CJ) and 313-314 [71] (Gummow J). 20 Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner at 345 [8] noted that the principled approach involves both the identification of what might lead a judge to decide a case other than on its legal and factual merits and then the articulation of the logical connexion between that factor and the feared deviation from the course of deciding a case on its merits. In applying this, Gageler J in Isbester at 155-156 [59] noted that there were, in effect, three steps involved: Step one is identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as the result of a neutral evaluation of the merits. Step two is articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits. Step three is consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way. 21 In the present context it is also important to make reference to the fact that the rule is directed to prejudgment. As Gleeson CJ and Gummow J noted in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 531-2 [71]-[72]: Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion… ... Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.

D.2 The unusual nature of s 33V applications 22 I have already made reference to the importance of context and that the present context is a singular one. This latter point merits elaboration. 23 The role of the Court in considering a settlement approval application under s 33V has been described many times. A useful and comprehensive summary of the principles is provided by Murphy J in Kelly v Willmott Forests Ltd (in liq) (No 4) [2016] FCA 323; (2016) 335 ALR 439 at 454-457 [62]-[77]. Put simply, the fundamental task is to determine whether the settlement is fair and reasonable having regard to the interests of the group members who will be bound by it. For present purposes it is important to emphasise the following five aspects of the Court's role. 24 First, the Court assumes an onerous and protective role in relation to group members' interests, in some ways similar to Court approval of settlements on behalf of persons with a legal disability; secondly, the Court must be astute to recognise that the interests of the parties before it and those of the group as a whole (or as between some members of the group and other members) may not wholly coincide; thirdly, and connected to the second point, the Court should be alive to the possibility that a settlement may reflect conflicts of interest or conflicts of duty and interest between participants in the common enterprise which has conducted the representative proceeding; fourthly, the Court should understand that at that point of settlement approval, the interests of the parties have merged in the settlement and both sides may not critique the settlement from the perspectives of the group members who may suffer a detriment or obtain lesser benefits through the settlement; fifthly, the Court must decide whether the proposed settlement is within the range of reasonable outcomes, not whether it is the best outcome which might have been won by better bargaining (in this way, the Court's task is not to second-guess the applicant's lawyers, and it should recognise that different applicants and different lawyers will have different appetites for risk): see generally, Lopez v Star World Enterprises Pty Ltd [1999] FCA 104; (1999) ATPR 41-678 at 42670 [15] (Finkelstein J); Williams v FAI Home Security Pty Ltd (No 4) [2000] FCA 1925; (2000) 180 ALR 459 at 465-466 [19] (Goldberg J); P Dawson Nominees Pty Ltd v Brookfield Multiplex Limited (No 4) [2010] FCA 1029 at [18] (Finkelstein J); Australian Securities and Investments Commission v Richards [2013] FCAFC 89 at [40] (Jacobson, Middleton and Gordon JJ); Caason Investments Pty Limited v Cao (No 2) [2018] FCA 527 at [12] (Murphy J). 25 In performing this supervisory and protective role, and in particular assessing whether the proposed settlement falls within the range of reasonable outcomes, the Court relies heavily on the applicant's counsel. Reflecting this, [14.4] of the Class Actions Practice Note (GPN-CA) provides: 14.4 The material filed in support of an application for Court approval of a settlement will usually be required to address at least the following factors: (a) the complexity and likely duration of the litigation; (b) the reaction of the class to the settlement; (c) the stage of the proceedings; (d) the risks of establishing liability; (e) the risks of establishing loss or damage; (f) the risks of maintaining a class action; (g) the ability of the respondent to withstand a greater judgment; (h) the range of reasonableness of the settlement in light of the best recovery; (i) the range of reasonableness of the settlement in light of all the attendant risks of litigation; and (j) the terms of any advice received from counsel and/or from any independent expert in relation to the issues which arise in the proceeding. 26 These are all topics which are almost invariably addressed in a confidential opinion prepared by junior (and usually senior) counsel who hold a brief in the matter which is admitted into evidence subject to confidentiality orders made under Part VAA of the Federal Court of Australia Act 1976 (Cth). That opinion, withheld from the respondent, must not only represent the genuinely held subjective opinion of the barristers, but must also set out, in sufficient detail to enable it to be assessed by the Court, the bases upon which that opinion is held. As an ex parte and confidential communication with the Court, it would be unthinkable that it would not disclose all material and important matters both supporting and detracting from the ultimate conclusion reached - including matters which may never have been (nor will be) disclosed to the respondent (indeed in some cases, experience suggests that such highly confidential and privileged matters may be of signal importance in assessing the reasonableness of the proposed settlement). 27 What all this means is that a judge has to perform an evaluation, not a calculus. The evaluation involves forming a view as to the reasonableness of counsel's opinion as to prospects of success and although this is an important evaluative factor, it is not determinative. After a multifactorial assessment on the basis of the material in evidence, a level of satisfaction must be reached (in accordance with s 140(1) of the Evidence Act 1995 (Cth) (EA)) that the settlement is fair, reasonable and in the interests of group members as a whole. This necessarily involves a measure of prediction and the necessity to consider the counterfactual of settlement not being approved. It is a stochastic process, as one or more parts of the assessment must take into account the randomness of events in a process as unpredictable as litigation. Despite the fact that aspects of the process call for prediction, it is a prediction based on material in existence and in evidence at the time of the application. As anyone with any involvement in litigation would realise, prospects can change, and change radically, depending upon new developments and matters outside the control of the moving party and the moving party's lawyers. Past views as to prospects are only valid provided the material upon which those views were expressed remains materially unchanged. The only principled basis to perform the task is to have regard to the material in evidence on the application. To the extent a view as to prospects is relevant to the broader assessment, it would not only be wrongheaded but would also amount to an error of law to have regard to subjective views as to prospects held on the basis of different information at an earlier time, a fortiori in relation to another dispute between different actors but with factual similarities.

E Matters to be attributed 28 As explained above, the test requires consideration through the attribution of knowledge of matters to a hypothetical fair-minded lay observer despite some criticism that this amounts to a fiction used to connote a degree of detachment or objectivity to a process which inevitably involves the application of normative standards of behaviour determined by the Court itself: see, for example, Martin CJ's comments in Commonwealth Bank of Australia v Jackson McDonald (a firm) [2014] WASC 301 at [24]. 29 In any event, given the required approach, it is necessary to understand the attributes of l'homme moyen. This paragon has admirable traits and, more particularly: (1) is taken to be reasonable: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 492-493 [12]; (2) does not make snap judgments: Johnson at 494 [14]; (3) is neither complacent nor unduly sensitive or suspicious: Johnson at 508-509 [53]; (4) knows of all the circumstances of the case: Re JRL; ex parte CJL (1986) 161 CLR 342 at 355, 359, 368 and 371-2; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87-8 and 95; and (5) will have regard to the fact that a judicial officer's training, tradition and judicial oath equip the judge with the ability to discard the irrelevant, the immaterial and the prejudicial: Johnson at 492-493 [12]. 30 In the light of this, it seems to me that the fair-minded observer would be attributed with the following knowledge in the circumstances of this case. 31 First, the fact that the judge did not act in the McKenzie Proceeding, nor for the applicant in another proceeding, nor against the present respondents in another proceeding (although he provided, some time ago, advice to the same solicitors acting for another person with similar issues in relation to an entity or entities associated with the respondents). 32 Secondly, the fact that this advice (and the draft statement of claim) prepared and settled by the judge when he was a barrister, was on the basis of a different "universe" of material (to adopt the expression of senior counsel for Cash Converters) to that which would currently exist and upon which the s 33V application is to be determined (although to the extent it relates to historical information or information not susceptible to change, the adjectival material may well overlap). Given a draft statement of claim was prepared, it is also reasonable to assume that the judge likely held the view that prospects were sufficient for such a draft document to be prepared (although balanced against this, is the fact that the actual draft document provided was never filed, for reasons that are unclear). 33 Thirdly, given the hypothetical fair-minded lay observer knows of all the circumstances of the case, this must include knowledge of the features of a s 33V application explained above, including the fact that: (a) it is an unusual judicial task involving no determination of a justiciable issue as between the applicant and the respondents; (b) the Court's fundamental role is to protect the interests of absent non-parties whose interests are otherwise unprotected (other than to the extent that the representative applicant has a fiduciary duty not to act inconsistently with their interests); (c) the applicant's counsel must draw to the Court's attention all important and relevant material currently in existence in allowing the Court to make its assessment and provide sufficient details of their reasoning processes being material, which at least in some important respects, will be held back from the respondents; and (d) any views as to prospects of a person in the position of the applicant held at earlier times during the history of this or related litigation (or proposed litigation), would be not only wholly incomplete but possibly misleading. 34 Fourthly, that the duty of the judge in making an evaluative assessment is to have no regard to material that is not in evidence (although, of course, regard may be had to matters of common knowledge not needing proof in accordance with s 144 of the EA). 35 Fifthly, before leaving the hypothetical observer's attributed knowledge, I should make a further point: although senior counsel for Cash Converters accepted, correctly as it happens, that as a tolerably busy barrister who acted in a large number of class actions, it would not be expected that I have any present recollection of being provided with material or providing advice in relation to the Proposed Proceeding, it is somewhat difficult to make too much of this point. Although well-informed, an ordinary hypothetical observer may find it difficult to appreciate how the prosaic details of briefs quickly depart and recede into the Cimmerian darkness of lost professional memory. As senior counsel for Cash Converters submitted, it is reasonable to assume a hypothetical observer may consider that the provision of material on the substantive application may possibly prompt some form of memory. On balance, I think it is fair to proceed on this basis. I will put to one side as being irrelevant my certitude, that at this remove, my ignorance of the details of the Proposed Proceeding is so profound as to make any "triggering" of cogitations on a long forgotten and relatively insignificant brief as unlikely as they would be unwelcome.

F Consideration 36 I set out above the various steps involved in considering an application for disqualification for apprehended bias. Justice Hayne's analysis in Jia Legeng is, with respect, a useful reminder of what is actually involved in such an allegation. At 564 [185], his Honour observed: Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case. 37 Even assuming contemporary recollection (or "revived" memory) of previously expressed views, how it could be reasonable to hold the view that the factors identified might amount to an apprehension of prejudgment which would not be amenable to fresh consideration in the light of the facts and arguments to be advanced on the substantive application on the basis of different material, was never an issue really grappled with by Cash Converters. 38 Dealing with the three steps identified by Gageler J in Isbester (see [20] above) it seems to me that Cash Converters have identified the step 1 "factors" as being that in 2014, I performed the tasks which I have already detailed which would have required some views being formed (on the basis of a different universe of material) on matters which may be relevant to the current proceeding. It is hypothesised that this might cause an apprehension that the s 33V application might be resolved otherwise than on its merits. As to step 2, the articulation of how the identified factors might cause that deviation is, as I understand it, that these factors might be perceived as bearing upon my neutral evaluation of the s 33V application, in the sense that I might bring a pre-formed view, and a "revived" knowledge of the matters considered in advising on the Proposed Proceeding, to the evaluation required on the s 33V application. Given the type of enquiry demanded by the s 33V application which I have explained above, this step 2 articulation is one which, with respect, I find difficult to follow. Be that as it may, where the argument seems to me clearly flawed arises at step 3, the consideration of the reasonableness of the apprehension of that deviation being caused by the factors identified. 39 I simply do not understand how it could be perceived reasonably that my ability to focus on the interests of group members could be compromised by the limited role I performed on behalf of a non-party client in a different matter some years ago. The hypothetical observer will have regard to the fact that I should have the ability to fulfil my oath and discard the irrelevant and the immaterial. In protecting group members, the hypothetical observer will have regard to the fact that I must assess the evidence and the current "universe" of material, and not be distracted by any subjective views as to whether a "better" outcome might have been won, or engage in the frolic of second-guessing the applicant's lawyers. Given these matters (and the other matters which I have identified must be attributed to the hypothetical observer), I do not consider there is a reasonable basis for an apprehension of a deviation from the neutral evaluation of the s 33V application by the factors identified by Cash Converters. 40 Cash Converters floated, but did not develop, the submission that the interests of group members required my disqualification. Cash Converters' interests are, of course, adverse to those of the group members in this Part IVA litigation. It is notable that the applicant, the representative of the group members for the advancement of their claims in this proceeding, and the party owing fiduciary duties to group members to not act contrary to their interests, does not take the view that it is necessary that I disqualify myself. 41 Without, I hope, reading too much into a choice of words, it is appropriate to make mention of one further matter by way of conclusion. On 22 November 2018, an email was sent by Cash Converters' solicitors to Maurice Blackburn which said, in terms, that "it was the respondents' preference that the settlement approval be referred to a different judge" (emphasis added). 42 I do not criticise Cash Converters for seeking my disqualification. Leaving aside its form, the application was properly made and presented. The facts are unusual and, insofar as the parties' research went, there has been no apprehended bias application in the context of a s 33V application that has been the subject of a judgment. Having noted this, applications for disqualification should not be made lightly and are not about the preferences of a party. They are about whether the Court is properly constituted according to law. Although the submissions of senior counsel for Cash Converters were characteristically careful and skilfully put, as noted above, I do not believe that there is a sound basis upon which any apprehension might be held by a reasonable fair-minded observer that the s 33V application might not be determined on the merits. The "preference" of Cash Converters, referred to in the email from their solicitors, should not (and must not) dictate the way the Court is composed.

G Orders 43 For the reasons set out above, the interlocutory application must be dismissed. My tentative view is that there should be no order as to costs, but any issue in this regard can be raised at that time of the hearing of the s 33V application before me on 31 January 2019. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

SCHEDULE OF PARTIES NSD 601 of 2016 Respondents Fourth Respondent: BAK PROPERTY PTY LTD ACN 103 054 824