Moles v The University of Adelaide

4 A directions hearing in the matter was held in Melbourne on 16 November 2001. At the directions hearing, Mr Howells, counsel for the applicants, asked me to consider re-docketing the matter having regard to that part of the interlocutory judgment in which the view was expressed that "overwhelmingly damages would be an adequate remedy". It was contended that such a view had involved a prejudgment of the first applicant's claim for specific performance. 5 My expressed view about damages related to the alleged grievances suffered by the first applicant in the period prior to 17 November 2001, rather than indicating my view about the strength of the applicant's claim for specific performance. In the following line, I specifically recognised that damages may not be an adequate remedy for the period between 17 November 2001 and the giving of judgment. However, I considered an urgent trial may ameliorate this disadvantage. I used the word "overwhelmingly" in temporal sense, as is clear from a fair reading of the interlocutory judgment as a whole. My use of the word "overwhelmingly" appears to have been misunderstood and taken out of context by the solicitor for the applicants who, at paragraph 5 of his affidavit in support of this Notice of Motion, refers to my observation that "overwhelmingly damages would be an adequate remedy", in isolation and without the qualification that immediately followed. 6 When the matter was initially raised at the directions hearing, my first inclination was to attempt to cause the matter to be re-docketed, rather than require the applicants to bring a formal motion for, in effect, disqualification on the ground of imputed bias. Without conceding the validity of the concerns of the applicants, I considered that this approach would save the parties the considerable trouble and expense of the issue being further ventilated. However, I informed the parties I would have to consider the matter and that I did not rule out the possibility that I would require a formal motion to be filed. Upon giving further consideration to counsel's request, I instructed my associate to write to the parties in the following terms: "The Judge has considered the foreshadowed application that he disqualify himself from hearing the trial in this proceeding. Initially, he was inclined to have the matter re-docketed to avoid the parties having to debate the issue. Subsequently, the Judge has formed the view, subject to further argument (if necessary), that there is currently no legitimate basis upon which he should disqualify himself. The Judge's views at the interlocutory stage of the proceeding were provisional only. He has an open mind on all issues the subject of claims for final relief. His provisional views were adopted on the basis of a preliminary hearing in circumstances where the evidence at the final hearing will not be the same as the evidence at the interlocutory hearing. The Judge is available from 2 - 12 April 2002 to conduct the trial. I will list the matter for hearing before him on these days (and abandon the foreshadowed directions hearing in March), unless our chambers is advised by 5pm on 20 November 2001 that the applicants wish to move on motion, supported by affidavit, a formal application that the Judge disqualify himself from conducting the trial. In the event that the applicants wish to avail themselves of the opportunity to bring such a motion, it must be filed and served by no latter than 10.15am on 21 November 2001 and be made returnable on 26 November 2001, in Melbourne. The respondent, if it wishes, can appear in Melbourne on that day, although our chambers understands that the current position of the respondent is that it does not wish to be heard on this issue. If this position remains constant, the respondent is excused from appearing to contest or support the applicants' motion, if one is filed."

7 My further consideration of my initial inclination to have the matter re-docketed was significantly influenced by issues concerning the administration of justice. In particular, I was mindful of the concerns raised by Gleeson CJ in Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 176 ALR 644 at [20] ("Ebner") where his Honour observed that:

"…if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable."

8 My associate's letter was sent to the parties by facsimile transmission late in the afternoon of 16 November 2001. On 20 November 2001, the solicitors for the applicants advised my chambers that they wished to file a motion in the matter seeking formally that the matter be docketed to another judge of the Court.

9 At the hearing of the motion on 26 November 2001, the applicants, represented by Mr Howells of counsel, submitted that I should not conduct the trial in the matter due to apprehended or imputed bias having regard to the transcript and the interlocutory judgment of 12 November 2001. Mr Howells submitted a reasonable apprehension of bias arose from comments which I made during the interlocutory hearing about specific performance being available as a remedy "in an appropriate case" (pp 49 & 50 of transcript), combined with a reference to Bullock v The Federated Furnishing Trades Society of Australasia (1985) 5 FCR 464 ("Bullock") and the use of the word "overwhelmingly" in the interlocutory judgment. For the following reasons, this submission lacks foundation. 10 My reference to specific performance being available "in an appropriate case" is an unexceptional one (and was made directly following my observation that "the traditional previous reluctance to grant specific performance doesn't exist": see p 49 of transcript). 11 Mr Howells contended that my reference to Bullock may lead to a reasonable apprehension of bias because Bullock was a case where the strength of the serious issue to be tried was low. This contention is devoid of merit. Bullock was referred to in the context of my decision to assume that there was a serious question to be tried, specifically without taking a view as to the degree of the assumed serious issue. So much is clear from the very sentence of the interlocutory judgment where reference to Bullock is made. 12 Mr Howells, as foreshadowed at the directions hearing and in the affidavit in support of the motion, focused on my observation that "overwhelmingly damages would be an adequate remedy". He did so without taking into account the explanation of the use of the word "overwhelmingly" contained in the following sentence. I refer to, without repeating, the observations made above at [5], and reject this contention. 13 Having heard the submissions in support of the motion I consider that it should be dismissed. I have not lightly made the decision to refuse to re-docket the matter. I am mindful of the view expressed by Kirby J in Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; 178 ALR 421 ("Jia") at [136], where his Honour observed that the purpose of the rule relating to imputed bias is to: "uphold vigilantly the high standards applicable to the appearance of justice and fairness in official decision making in Australia." 14 I am also conscious that the test for imputed bias is now expressed in terms of possibilities, that is, it is enough "that 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."(Emphasis added). See Ebner at [6] per Gleeson CJ. See also Jia at [135] per Kirby J and R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 262 per Barwick CJ, Gibbs, Stephen & Mason JJ. However, such bias must still be "firmly established", as Kirby J recognised in Jia at [135]. As Dawson J said in Re: Morling; Ex parte Australasian Meat Industry Employees (1985) 66 ALR 608 at 611 ("Morling"): "The mere expression of an apprehension of bias does not establish that it is reasonably held; that is a matter which must be determined objectively." 15 In the circumstances of this case, I do not believe a "fair-minded observer" or any party, aware of the nature and purpose of interlocutory hearings, would objectively consider that I might not bring an impartial mind to the question of whether specific performance should be granted in this matter after consideration of evidence and submissions advanced at a final hearing. 16 The chief reason why the interlocutory injunction was not granted was because of the applicants' delay in bringing the proceeding. My views on the adequacy of damages were less significant to the resolution of the interlocutory issue. As was said in the letter from my associate to the parties, my views on the issue of damages being an adequate remedy were provisional, in the sense that they were based on the current state of evidence and submissions. It is important to observe that at the directions hearing Mr Howells informed the Court that the applicants were not ready for a February hearing, and required until February 2002 to put on wholly new evidentiary material upon which they would rely at a trial to be held later in 2002. The trial is now scheduled to commence on 2 April 2002, and will be heard and determined by reference to that material which is yet to be filed. 17 In light of this context, I adopt the approach of Dawson J in Morling. In Morling, Dawson J considered an application seeking that Morling J not hear a matter in which he had granted an injunction. In dismissing the application, Dawson J made the following observations at 611 - 612: "… having expressed his views regarding the evidence adduced upon the question of injunctive relief, there is no reason to suppose that, upon the question of responsibility of the union for any loss or damage suffered by the claimant and the extent of any such loss or damage, his Honour will not reach his conclusions in accordance with the evidence which, having regard to the course taken, may not be the same evidence as that upon which his Honour granted an injunction. …

[Morling J] reached those views at a time when the whole of the proceedings before him had not been completed and there is nothing to indicate that they represented concluded views whatever course the proceedings might thereafter take. Indeed, the piecemeal nature of the proceedings required conclusions to be reached at different stages upon the material then before the judge. Difficult, perhaps undesirable, as such a mode of proceeding might be, it does not carry with it the implication that the judge, in reaching a conclusion upon one issue in the case must subsequently approach another issue with a closed mind, unable to give proper weight to any further material which might be put before him."

18 In considering whether specific performance of contract should be granted as final relief, I will consider the evidence and argument put at trial, and have an open mind about whether my views expressed in the interlocutory judgment will be views which I will hold at the conclusion of the trial. In the absence of the evidence being filed and submissions being heard, I cannot know what views I will arrive at.

19 I do not consider that in the circumstances, an independent observer or a party viewing the matter objectively, might have a reasonable apprehension that I would not bring an impartial mind to the resolution of all issues in the trial of this proceeding. The motion will be dismissed and the hearing dates advised in my associate's letter to the parties will stand, subject to further orders, if any. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Counsel for the Applicant: Mr S Howells

Solicitor for the Applicant: Lieschke & Weatherill

Date of Hearing: 26 November 2001

Date of Judgment: 26 November 2001