Murray Goulburn Co-Op Limited v Kevin Blennerhassett [1999] VSC 5

2. This is the return of a summons filed upon an originating motion whereby the plaintiff Murray Goulburn Co-Op Ltd seeks an order pursuant to Order 56 of the Supreme Court Rules prohibiting the fifth-named defendant his Honour Judge Gebhardt from further hearing and determining proceeding No. 2651 of 1996 in the County Court of Victoria at Morwell between the first-named defendant as plaintiff and the plaintiff as defendant.

5. The background to the application may be summarised as follows:-

8. In 1996 the first-named defendant Kevin Blennerhassett filed a proceeding in the County Court at Morwell by which he seeks to recover damages from the plaintiff in respect of injuries he suffered whilst in the employment of the plaintiff between 23 February 1981 and 30 December 1985. By his statement of claim the first defendant alleges that between t hose dates he was subjected to repeated acts of physical and mental abuse carried out by the servant or agents of the plaintiff who were in a position of authority over him and who were acting in the scope of their employment with the plaintiff. The first defendant further alleges that as a consequence of that behaviour he now suffers from significant psychiatric disabilities.

11. The plaintiff joined three insurers as third-parties to the proceeding. The three insurers are the second, third and fourth defendants to the present application. His Honour Judge Gebhardt is the fifth defendant.

14. The hearing of the first-defendant's claims commenced before his Honour Judge Gebhardt at Sale on Tuesday 9 December 1998. The first-defendant gave evidence on that and the following day. Three medical practitioners were then called to give evidence as to the first defendant's medical condition. Their evidence was followed by the evidence of three co-employees of the first defendant who spoke of their observations of the treatment meted out to employees of the plaintiff by other employees over the period of time in question.

17. The treatment spoken of by the first defendant and the co-employees consisted of such incidents as placing an employee in a 44 gallon drum, then rolling the drum down an incline; hanging an employee in a harness from the ceiling, then lighting a fire beneath him; and greasing male employees testicles.

20. On the second day of the trial and during the course of the first defendant's cross-examination by counsel for the plaintiff the following exchange took place between his Honour and counsel for the plaintiff:-

HIS HONOUR: Mr O'Neill, with the questions you put in relation to the episodes.

HIS HONOUR: Are you saying, or implying that the plaintiff invented those?

HIS HONOUR: Very fertile imagination for a 17 year old fitter and turner, isn't it, from the country? We'll have a rest for ten minutes.

28. On Friday 10 December 1998, and immediately before the hearing was adjourned to Monday 14 December, his Honour remarked to counsel for the plaintiff -

"There seems no doubt to me, Mr O'Neill, that these incidents occurred."

32. On the Monday further evidence was called on behalf of the first defendant and counsel then closed the first defendant's case. The following exchange then took place between his Honour and counsel for the plaintiff:-

MR KEENAN: That is the plaintiff's case, Your Honour.

HIS HONOUR: Mr O'Neill, how do you intend to proceed?

MR O'NEILL: (Indistinct) I will call my first witness, Mr Parr.

HIS HONOUR: Just before you do that. If I accept the evidence that I have heard so far on the balance of probabilities in relation to the incidents, why should I not refer the papers to the Attorney-General?

MR O'NEILL: I would like Your Honour to hear all the evidence before determining anything of that sort.

HIS HONOUR: I am going to be very hard put not to be satisfied as to some of these incidents and the sexual incident which I regard as the most serious of them all. It seems beyond doubt in my mind, not to the question of probabilities. If that is the case =- I know what you are saying, but I am not of a mind to think that the Attorney-General should be denied the pleasure of this. Call your witness.

41. Counsel for the plaintiff then proceeded to call evidence on behalf of the plaintiff.

44. On the following day, that is Tuesday 15 December counsel for the plaintiff made application to Judge Gebhardt that he disqualify himself from continuing to hear the case on the ground of ostensible bias. The application was based upon the comments and observations made by his Honour to which I have referred.

47. Pausing for a moment, there can be no criticism of counsel for the plaintiff for the delay in making such an application, because even at the time the application was made, the parties did not have available to them the transcript of the previous day's proceedings or at least, that portion of it regarding the exchange to which plaintiff's counsel took exception.

50. At the conclusion of the application his Honour delivered the following ruling:-

HIS HONOUR: I have heard the matters you put to me, I am aware of the authorities that you put to me. The matters I expressed have been matters raised by the evidence, evidence which has been subject to cross-examination, evidence subject to cross-examination where instructions on behalf of the defendant have been put and answered. And I am of a view, as I have said, if the matters are found by me to be proven, I am at liberty with respect to exercise a discretion about the referral of the papers.

I do not, in my view, think there can be any apprehension of any sort other than an apprehension about the evidence. It is not a preconception, it is a conception arrived at as a result of the evidence led in this court. I do not propose to stand the matter down and I do not propose to disqualify myself.

56. Later that day, and after counsel for the plaintiff had received a copy of the transcript of the previous day's hearing, counsel for the plaintiff renewed the application.

59. Perhaps not surprisingly his Honour refused the application. I say "not surprisingly" simply because as matters then stood it was highly unlikely that his Honour would have changed his mind in the matter.

62. The case for the plaintiff concluded on 16 December. As I understand the situation, the proceeding was then adjourned to enable counsel for the parties to provide written submissions to his Honour. As yet Judge Gebhardt has not delivered his judgment in the proceeding.

65. It was submitted on behalf of the plaintiff that by reason of the comments made by his Honour, particularly those made on 10 December and 15 December, a fair minded observer might entertain a reasonable apprehension that his Honour might not bring an impartial and unprejudiced mind to the resolution of the question as to whether the incidents the subject of the proceeding had occurred.

68. Whilst undoubtedly that is the test to be applied in determining an application such as the present - see Vakauta v. Kelly [1989] HCA 44; (1989) 167 C.L.R. 568 and Liversey v. The New South Wales Bar Association [1983] HCA 17; (1983) 151 C.L.R. 288, a more fundamental question I feel I must first determine is whether it is appropriate for a single judge of this court to entertain an application the effect of which if successful, would be to prohibit a judge of the County Court hearing and determining a civil proceeding then before him. I confine my observations to civil proceedings because different considerations may well apply to a criminal proceeding.

71. It was not argued before me that a single judge of this court does not have jurisdiction to order prohibition to restrain a judge of the County Court hearing a civil proceeding. Nor was it argued that if ostensible bias was demonstrated, nevertheless I did not have jurisdiction to intervene by prohibition. In that latter regard see The Magistrates' Court at Prahran v. Murphy (1997) 2 V.R. 186 particularly per Charles JA at p.213.

74. What was argued was that firstly, by his remarks his Honour Judge Gebhardt has not demonstrated ostensible bias, and secondly, that having regard to the fact that the present plaintiff has an unfettered right of appeal to the Court of Appeal in the event it is dissatisfied with his Honour's decision, it would be inappropriate for a single judge of the court to interfere in the matter.

77. There are many decisions of recent years where Courts of Appeal have pointed out the undesirability of "fragmenting" the criminal process and will only interfere in the conduct of criminal trials in the clearest of cases where the need for such interference is absolutely plain and manifestly required. See in particular D.P.P. v. Denysenko & Ors (1998) 1 V.R. 312 per Brooking JA at p.316 and Frugtniet v. Victoria & Ors[1997] HCA 44; (1997) 148 A.L.R. 320. But I have not been referred to any authority in which similar statements have been made in relation to civil proceedings, nor in the time available to me have I been able to discover any for myself.

80. There can be little doubt but that if I determine the present application, my decision will be the subject of appeal to the Court of Appeal. If that proved to be the case, that would have the effect of fragmenting the civil process. I say that for the reason that if I granted the application and that decision proved to be erroneous, Judge Gebhardt would proceed to deliver his judgment in the case and if the plaintiff was dissatisfied with the judgment it would have the right to appeal to the Court of Appeal. If on the other hand I was to refuse the application and that decision proved to be erroneous, there would be a fresh trial of the County Court proceeding before another judge of that court, and once again, if the plaintiff was dissatisfied with that judge's decision, it would have a right of appeal to the Court of Appeal.

83. It was argued on behalf of the plaintiff that if I did not determine this matter and Judge Gebhardt made a finding adverse to the plaintiff, that would cause grave prejudice to the plaintiff. In that regard I refer to the affidavit of Katherine June Forsyth sworn 22 December 1998 the relevant paragraphs of which read:-

"I am instructed and verily believe the defendant is a large employer in the Gippsland area and throughout Victoria. Its reputation in the community in which it operates is extremely important to it. It is essential it maintain a proper working relationship not only with its employees, but the persons within the community in which it operates. In addition it is of utmost importance in its continuing to operate a successful business.

It is likely that an adverse judgement would attract significant publicity where the defendant conducts its business and would have a detrimental effect upon the reputation of the defendant. While the defendant will accept without reservation any determination of the issues in this proceeding based upon a fair and impartial determination of the facts and the evidence, any prejudgement or bias on the part of the learned trial judge which could lead to an adverse finding could have a very significant and detrimental impact upon the reputation of the defendant and serious ramifications for its business operations."

87. I am not at all persuaded that that would be the case.

90. The events the subject of this litigation occurred between 23 February 1981 and 20 December 1985. It is notorious that there has been a significant improvement in work place environments since that time and that bastardry of the type alleged in the present case has been outlawed. I find it very difficult to accept therefore that any reasonable member of the public would conclude that because employees of the plaintiff were found to have engaged in that conduct at that time, employees of the plaintiff are engaging in such conduct at the present time or have done so of recent years.

93. Having given this matter careful consideration I do not think that the need for my interference is so absolutely plain and manifestly required as to justify making the order sought by the plaintiff even if I was otherwise of the mind that the ostensible bias alleged by it has been established. In the exercise of my discretion I decline to do so. The plaintiff has a right of appeal to the Court of Appeal if it is dissatisfied with Judge Gebhardt's decision and in my opinion that is the appropriate course for it to pursue.

96. The plaintiff's originating motion and summons will be dismissed with costs, including reserved costs, to be taxed and paid by the plaintiff.