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[2013] NSWSC 693
Supreme Court of NSW
2013-05-08
Rothman J
Original judgment source is linked above.
Judgment 1On 9 May 2013 I refused to excuse myself from hearing this matter on the basis of bias. I reserved reasons. These are the reasons. 2In these proceedings, the plaintiff, Permanent Custodians Limited, seeks orders from the Court including an order for damages against the fourth to sixth defendants. The plaintiff alleges misleading or deceptive conduct against the fourth to sixth defendants, or, alternatively, that the fourth to sixth defendants breached a duty of care owed to the plaintiff to avoid foreseeable loss. 3The fourth defendant in proceedings is Phillip Howard Symonds, who also spells his first name as "Philip". By letter dated 1 May 2013, Mr Symonds' legal representatives notified the solicitors for the plaintiff and second to third defendants that: "Mr Symonds (the fourth defendant) has informed us that he has had a limited personal relationship and some previous dealings with his Honour Justice Rothman... For a period in the 1990s, Mr Symonds was the President of Mt Sinai College, an infants/primary school. At the same time, his Honour Justice Rothman was the President of Moriah College, an infants/primary and secondary school. Mr Symonds has informed us that whilst he was the President of Mt Sinai College, he had a number of communications with Justice Rothman, by letter and by telephone. He also met with Justice Rothman, amongst others, on a limited number of social occasions related to the two schools." 4On 7 May 2013, before the commencement of proceedings, the parties quite properly, and in a most appropriate manner, requested an opportunity to ventilate in Court the issue of apprehended bias in light of the aforementioned letter and the matter it raises. Mr Symonds and I were President of the Board of Management at Mt Sinai College and Moriah College respectively. No party has formally objected to my continuing to hear the matter. 5On 8 May 2013, an objection, conditional upon the continued involvement of the second and third defendants in the court proceedings, was raised in Court on behalf of the second and third defendants. No objection was raised on behalf of the plaintiff, or the fourth to sixth defendants. I have treated the issue as though objection were raised to my hearing the proceedings. 6Before discussing the general principles of law applicable to the determination of whether a judicial officer should grant an application for disqualification on the basis of apprehended bias, it is appropriate to deal with the process that has been followed in the making of this application. 7The Court of Appeal has described the orthodox method of raising with a judicial officer the question of apprehended bias. The relevant passage is cited, without criticism as to the practice, by the High Court of Australia in Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 292. In Livesey, supra, counsel making the application, together with counsel for the other party, approached the judges in chambers to notify them of the application to be made and its basis. 8While in this case the issues were ventilated in Court, I commend the legal representatives because the issue was raised at the earliest reasonable time. 9This is not simply a matter of courtesy. Such notice aids the administration of justice. It allows the other party, to the extent necessary, to be represented by separate counsel, if it be a matter in which the counsel is personally involved. Further, 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. 10However, it is also a matter of courtesy. And such courtesy also aids the administration of justice. For example, let us assume that the judge accepted that there were good reasons to stand down from the hearing. An early notification, such as this, would allow the court or tribunal to reallocate the matter (possibly with the necessity of reallocating two matters) and thereby not occasioning any delay. 11Whatever the reason for the practice, it is an important aspect of the application of the principles that, at the earliest possible time, counsel (or the parties) inform the judicial officer that an application of such kind is to be made. Such a process was followed in these proceedings, for which I commend the parties. 12The general principle is that a judge should not hear a case if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions involved in it: Livesey, supra, at 293-294; R v Watson; ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 258-263. 13It is inappropriate for a judicial officer to take "the easy option" and accede to such an application without coming to the conclusion that it is necessary. Judicial officers (and most members of most tribunals) are under a duty to hear and determine matters allocated to them: see Re JRL; ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352; Re Polites; ex parte Hoyts Corporation Pty Ltd (No 2) [1991] HCA 31; (1991) 173 CLR 78. 14In the last mentioned judgment of the High Court, the member of the Australian Industrial Relations Commission determined that there was a reasonable apprehension that he could not bring an impartial mind to the determination of the issues in the proceedings, because he had previously advised one of the parties before the Commission on an issue relevant to the proceedings. Yet the High Court, partly for reasons associated with the nature of the jurisdiction and the time of the application, determined that he was required, in the circumstances, to sit and to hear and determine the proceedings allocated to him. The High Court issued mandamus to effect that course. 15Thus, it is necessary for me to determine, whatever may be my inclination, whether there is a reasonable apprehension that I could not bring an impartial mind to the determination of the issues between the parties in these proceedings. In order for there to be a reasonable apprehension of the relevant kind, it is necessary that a fair-minded lay observer, properly informed, might reasonably apprehend that I might not bring an impartial mind to the resolution of the issues in the proceedings: see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344. 16The High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) in Ebner, supra, at 345, discussed the underlying philosophy behind the principle in a way that informs its application. Their Honours said: "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 from 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." 17The difficulty lies in what is to be presumed is the knowledge of a "properly informed fair-minded lay observer". Is it, as stated by Kirby P, the knowledge of "ordinary reasonable citizens on the Emu Plains omnibus"? (See S & M Motor Repairs v Caltex Oil (1988) 12 NSWLR 358 at 376 adopted by Kirby J in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 509 [54]). 18There is much to be said for the minority view of Kirby P in S & M Motor Repairs, supra, that too great a sophistication in the assumed knowledge of the hypothetical bystander translates the test to one that would relate to the reasonable apprehension of an onlooker judge. 19However, in the current circumstances, it is as well to remember that it is the conduct of the judge that is scrutinised for prejudice and/or a lack of impartiality. Leaving aside the reference to "high probability", which no longer constitutes the test, the passage in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100 at 116 (cited by Kirby J in Johnson, supra, at 498) bears repeating: "Bias must be 'real'. The officer must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons."
Consideration 20No evidence was relied upon to prove conduct of the judge that would give rise to an apprehension of bias. The fact that a party to proceedings has had a professional association with a judge, prior to that judge's appointment, does not, without more, form a basis for the disqualification of the judge from those proceedings. 21In this case, the relationship between Mr Symonds and me, as alleged, and taken at its highest, was confined to those things necessary to the execution of different roles as Chair of a Board of Management, which was held by each of us at different, competitive but predominantly co-operative, schools. It was an association that could be characterised accurately as more distant than the relationship between the Bar and the Bench, or solicitors and counsel. 22While the tests in England on the question of bias are expressed differently (Johnson, supra, at 492) (although the differently expressed tests may not effect a different result), the relationship between the Bar and the Bench was the subject of discussion in a passage that is instructive: "[61] The fact that the observer has to be 'fair-minded and informed' is important. The informed observer can be expected to be aware of the legal traditions and culture of this jurisdiction. Those legal traditions and that culture has played an important role in ensuring the high standards of integrity on the part of both the judiciary and the profession which happily still exist in this jurisdiction. Our experience over centuries is that this integrity is enhanced, not damaged, by the close relations that exist between the judiciary and the legal profession. Unlike some jurisdictions the judiciary here does not isolate itself from contact with the profession. Many examples of the traditionally close relationship can be given .... [62] It is also accepted that barristers from the same chambers may appear before judges who were former members of the chambers or on opposite sides in the same case. This close relationship has not prejudiced but enhanced the administration of justice. The advantages in terms of improved professional standards which can flow from these practices have been recognized and admired in other jurisdictions .... [63] The informed observer will therefore be aware that in the ordinary way contacts between the judiciary and the profession should not be regarded as giving rise to a possibility of bias. On the contrary, they promote an atmosphere which is totally inimical to the existence of bias. What is true of social relationships is equally true of normal professional relationships between a judge and the lawyers he may instruct in a private capacity." (Taylor v Lawrence [2003] QB 528 at 548-9.) 23Taylor v Lawrence concerned an application for bias in circumstances where the solicitor for a litigant was the judge's personal solicitor and had attended to work for the judge during the course of the litigation or immediately prior thereto. It should also be noted that the conduct with a legal representative of a litigant was during the time of the judge's tenure. In this case, Mr Symonds is a solicitor, although it is not alleged that his profession was known to me at the time we were Chairs of the different Boards of the Schools. Nor is it suggested that the relationship was other than public and arms' length. 24As earlier stated, the professional relationship between Mr Symonds and me was more distant than that between counsel. We are not here concerned with a legal representative or litigant who is a spouse, sibling or child of the judge, or is otherwise in a domestic relationship. If professional relationships, of almost any kind, that have not developed into a personal friendship or more, were considered an impediment to the unprejudiced resolution of a matter, the ramifications would be extremely broad. 25This is not a relationship that would reasonably be seen to impede an impartial determination by me of a matter to which Mr Symonds is a party, even in circumstances, if that were to occur, where the objection of the second and third defendants is raised on the basis that the credibility of Mr Symonds may be an issue (Transcript, p 2). 26For such a relationship to form a basis for the disqualification of a judge, it must give rise to an apprehension that, because of the identify of the party to proceedings, the judge would not impartially decide the issues in the proceedings; i.e., the identity of a party gives the informed bystander a reasonable apprehension that the judge prefers, other than on the merits of the evidence, a particular outcome or is restricted in the ability to assess the issues, including credibility, that may affect Mr Symonds. There can be no such apprehension in this case. 27It is for the above reasons that I refused to excuse myself from these proceedings.
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: 04 June 2013
Permanent Custodians Ltd
Geagea
[1991] HCA 31
(2000) 205 CLR 337
(2000) 201 CLR 488
(1983) 151 CLR 288
(1953) 88 CLR 100
(1976) 136 CLR 248
(1986) 161 CLR 342
(1991) 173 CLR 78
(1988) 12 NSWLR 358
[2000] HCA 63