Plaintiff v Defendant

Plaintiff v Defendant - [2015] VSC 294 - VSC 2015 case summary — Zoe

[53]

First, when one of the grounds of appeal is based on actual or apprehended bias, the Court of Appeal needs to deal with that ground first. If the appellant establishes actual or apprehended bias, the Court will set aside the decision below and remit the matter back.[31] This is so even if the Court is satisfied that the decision below is correct on the merits.[32]

Secondly, as noted in Antoun,[33] judges should not 'too readily accept recusal because a party has demanded it'.[34] Further, as held in Ebner,[35] '[j]udges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. ... If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.'[36] That being said, the principle that a judge should not disqualify him or herself too readily is not a 'blanket that smothers the effect of disqualification where it has already arisen'.[37]

Thirdly, the test for a reasonable apprehension of bias was stated in Johnson[38] as being 'whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide'.[39] The word 'might' in the phrase 'might not bring an impartial and unprejudiced mind' was clarified in Ebner as referring to 'possibility (real and not remote), not probability'.[40] On the basis of Ebner, where, as in this case, 'the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge'.[41]

Fourthly, the apprehension in question is apprehension that the judge will not decide the case impartially, not merely an apprehension that he or she 'will decide the case adversely to one party'.[42]

Fifthly, the application of the test involves two steps. The first step is 'the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits'.[43] The second step is the 'articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits'.[44] Contrary to AJH Lawyers' submission,[45] the two-step approach is applicable to cases of apprehended bias on the ground of pre-judgment.[46] In such a case, the matter to be identified in the first step is the conduct of the judge said to give rise to apprehension of bias. And the logical connection that needs to be articulated in the second step is the logical connection between the conduct of the judge and the feared prejudgment of a question the judge is required to decide.[47]

Sixthly, 'the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer'.[48] The fictional lay observer 'is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge'.[49] Yet the fictional observer is taken to understand the dynamics of modern judicial practice. Modern judges 'are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them'.[50] '[T]he expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias'.[51]

Seventhly, '[a] line is drawn between forthright and robust indications of a trial judge's tentative views on a point of importance in a trial and an impermissible indication of prejudgment that has the effect of disqualifying the judge from further conduct of the proceedings'.[52] A key factor determining whether that line has been crossed is the extent to which the views expressed by the judge appear to be final rather than merely tentative.[53]

Finally, ['j]udges do not have to devote unlimited time to listening to unmeritorious arguments. Sometimes, a brief hearing will suffice'.[54] That having been said, when a party makes an application, the judge must normally give the party some reasonable opportunity to make submissions in support of that application.[55] This is so even if the judge's preliminary view is that the application will be unmeritorious.[56] If the judge refuses an application before receiving any submissions, the impression created by that conduct is not erased if the judge, after having announced his or her decision, agrees to listen to the party's submissions under sufferance.[57]

[68]

27 The Commissioner also sought to distinguish the decision in Ex parte H on the basis that in that proceeding the offending conduct involved constant, rather than a singular, interruption. While agreeing that the test as articulated in Ex parte H does not rely solely on constant interruption, it was said there that it was the incessant repetition of the Refugee Review Tribunal's belief that the male prosecutor was lying that founded the apprehension of bias. In those circumstances it is said that the conduct of the Refugee Review Tribunal was of a much more objectionable nature than that of the Tribunal in these proceedings. While that may very well be true, as the High Court said in that case, whether or not there is apparent bias depends on context. I made the observation, which I think is consistent with the judgment of the High Court, that, in context, it depends what - and probably when - things are said and the nature of the things which are said or impressions created by the Tribunal. Thus, in some circumstances, incessant interruptions or a combination of a number of statements may lead to the impression of bias and denial of the right to be heard. However, in other cases, a strong statement - even if only one statement - might be sufficient. In these proceedings, it was made very clear at the Tribunal and emphasised by the Commissioner that the allegations of fraud levied against Mr Cummaudo were a central tenet of the Commissioner's case. What the Senior Member was doing, it was said, was merely inviting the witness to provide answers to these allegations.[70] In my view, these submissions cannot be accepted. Emphasising the centrality of fraud in this case only serves to emphasise the critical care which the Tribunal should have taken in the exchange with Mr Cummaudo in relation to his finance arrangements for the strata title development. Moreover, allegations of fraud are treated by the courts as allegations of the gravest nature - as is evident in the costs consequences for legal practitioners making unsubstantiated allegations of fraud.

[81]

34 Having regard to the importance of the financial matters given the nature of the proceedings and the suggestion by the Tribunal that, in this context, Mr Cummaudo had defrauded the bank, one might have thought that a Tribunal with an open mind and concerned to clarify the details of financial matters would have encouraged Ms Hirst to ask her question or questions 'about the finance'. In context of the part of the proceedings to which attention has been directed, the impression that would be gained from the Tribunal's response to Ms Hirst's reference to questions she was going to ask about the finance is that the Tribunal was not interested in hearing more about this issue and that the reality was that Ms Hirst was being told, in effect, not to ask any further questions. Added to the impression created by this exchange is the consideration that Ms Hirst is not legally qualified and is representing Comaz as a layperson. One can argue whether Comaz is to be regarded, through its representatives, as an unrepresented litigant. This debate does not, however, assist with respect to this issue - or subsequent issues with respect to procedural fairness - because the point is that, as was known to the Tribunal and to the representative of the Commissioner, they were dealing with people, such as Ms Hirst and Mr Cummaudo, who were without legal qualifications and possibly - and certainly as appears from the VCAT Transcript - probably inexperienced in relation to Tribunal procedure or civil litigation.[74] Moreover, there cannot be any doubt as to the importance and significance of this exchange, both as to the significant issue and the weight it bore in the Tribunal's ultimate decision making. The latter is evident from the Tribunal reasons which indicate, clearly, the adverse effect it had on the Comaz case, as the Tribunal found that Mr Cummaudo's evidence "made it clear, that he was prepared to mislead and deceive the bank or banks from which he was dealing. That is, he was required to have presold a number of units in the development, to unrelated parties prior to gaining finance."[75]

[115]

MR YOUNG: 246. So, that's an appointment of agent form, 20th of August 2002, not May, that you execute in relation to the purchase of shop C?

MR CUMMAUDO: Mm, mm.

MR YOUNG: All right, so what [sic] your evidence about this form?

MR CUMMAUDO: Well, you asked me why they purchased. Perhaps they purchased because I gave them an agent's authority.

SENIOR MEMBER: Who drew this form?

MR CUMMAUDO: Sorry?

SENIOR MEMBER: Who drew this form?

MR CUMMAUDO: Sorry, sir.

SENIOR MEMBER: Who drew that form?

MR CUMMAUDO: Where did I get it from?

SENIOR MEMBER: Who drew it, yes.

MR CUMMAUDO: I assume the solicitor would have drawn that up.

SENIOR MEMBER: Who is that?

MR CUMMAUDO: Alderuccio.

SENIOR MEMBER: Is he giving evidence?

MR YOUNG: Can he give evidence?

SENIOR MEMBER: Is he going to give evidence?

MR CUMMAUDO: As far as - - - I'm not sure, no.

SENIOR MEMBER: Are you calling him?

MR CUMMAUDO: Sorry?

SENIOR MEMBER: Are you calling him? Are you calling him to give evidence?

MS HIRST: No - -

SENIOR MEMBER: No, you don't look at - - just answer the question.

MR CUMMAUDO: We can call him if you like.

SENIOR MEMBER: Are you calling him?

MR CUMMAUDO: I did ask him to come along. And I can send you email that I recently sent him - -

SENIOR MEMBER: No, I just asked your [sic] question. Are you - -?

MR CUMMAUDO: I'm asking him to be a witness here, sir, but he hasn't replied. He hasn't replied to my email.

SENIOR MEMBER: Are you thinking of subpoenaing him?

MR CUMMAUDO: Well, it might be a good idea.

SENIOR MEMBER: Well, it's a bit late now. Why didn't you do it earlier?

MR CUMMAUDO: Well - -

SENIOR MEMBER: Because, you understand don't you that there's a - -

MR CUMMAUDO: We all - -

SENIOR MEMBER: Just one moment.

MR CUMMAUDO: Sorry.

SENIOR MEMBER: You understand there is a dispute as to the date that this appointment of agent was signed. Do you understand that?

MR CUMMAUDO: Yes, I do, yes.

SENIOR MEMBER: Well, surely he as the solicitor who drew it, his evidence would be pretty important wouldn't it?

MR CUMMAUDO: I would say so.

SENIOR MEMBER: All right.

MR CUMMAUDO: I - - I would assume that the State Revenue Office as far as I know they've got this document here. They have subpoenaed two other witnesses. Why didn't they subpoena - -?

SENIOR MEMBER: Well, he is your man.

MR CUMMAUDO: No, he's not my man.

SENIOR MEMBER: Well, look, I'm not arguing with you - -

MR CUMMAUDO: [Inaudible] my man, too.

SENIOR MEMBER: All right - -

MR CUMMAUDO: [Inaudible] my man. Why hasn't the State Revenue Office subpoenaed Bruno to get to the bottom of it?

SENIOR MEMBER: You understand that you have got the burden of proof, don't you?

MR CUMMAUDO: I do can [sic] only go by that - -

SENIOR MEMBER: But you understand - - you know what that means?

MR CUMMAUDO: Yes.

SENIOR MEMBER: Yes.

MR CUMMAUDO: Well, that's the proof there. I signed the document on that date. By the look of it I didn't prepare it.

MR YOUNG: You signed the document on that day, that is your evidence?

MR CUMMAUDO: I didn't prepare that document.

[123]

54 As the Court of Appeal said in Downes, the requirements of procedural fairness must respond to the circumstances of the particular case in that the need to explain evidentiary rules and principles to a party in a particular case will depend upon the nature of that case and the course and conduct of the proceeding.[100] It is clear that the nature and outcome of the hearing at the Tribunal was very much predicated upon findings of fact on which Mr Alderuccio's evidence may have shed considerable light. Where the credibility of Mr Cummaudo was called into question from the outset, the importance of calling evidence which may have supported, or detracted, from these findings (or rather, presumptions) in relation to credibility, is only heightened. It simply could not be expected that either Ms Hirst or Mr Cummaudo could fully appreciate the manner in which the failure to call Mr Alderuccio could potentially impact upon the outcome of their case, given their lack of knowledge regarding the intricacies and potentially significant consequences flowing from the application of the rule in Jones v Dunkel. The failure of the Tribunal to even attempt to clarify or explain the manner in which an inference may be drawn, and indeed was drawn, in regard to the failure to call Mr Alderuccio resulted in a breach of procedural fairness of a most serious kind. As I have indicated, any notion that such a defect could have been cured by counsel for the Commissioner merely raising the issue in closing submissions without any further steps being taken, such as advising Ms Hirst of the possibility of re-opening Comaz's case to recall Mr Alderuccio, sorely misses the point. In many ways, the fact that the point was raised in closing submissions, and accepted by the Tribunal in its reasons, only serves to highlight how important the issue was to the conduct of the trial in a manner which provided procedural fairness. The course followed also raises some concern in relation to the conduct of the Commissioner as a model litigant - an important point I will consider in greater detail below. For these reasons, I find that Question Three of the Notices of Appeal is made out.

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