Plaintiff v Defendant

Supreme Court of Victoria|2016-09-29|Before: RIORDAN J

PRACTICE - Constitution of court - Judges - Disqualification for bias - Test of bias - Objective standard applied - Professional relationship between judge and a legal practitioner defendant in the proceeding - Relevance of party's preference for another judge.

1 This is an application made this morning by senior counsel for the plaintiff that I should recuse myself from hearing summary dismissal applications brought by various defendants. The plaintiff in this proceeding principally seeks to set aside a judgment of this Court given on 4 September 2013. There are eight defendants to the proceeding, including the third defendant, a Queen's counsel and a member of the Victorian Bar, who appeared on behalf of the fourth defendant at the original trial.

2 At the commencement of the hearing, I disclosed the fact that, over the years that I was at the Victorian Bar, I have known the third defendant on a professional basis in that I was opposed to him and acted for different parties in litigation on a few occasions, the number of which I could not specifically recall. He had not been my junior and we had not acted for the same party. As an incident of that relationship I would see him from time to time around chambers and say 'hello' in passing. However, I have not had a social relationship with the third defendant. I have not been to his house nor has he been to mine.

3 Mr Nash QC relied upon those facts to support an application that I should recuse myself. Whether or not a judge should disqualify himself from hearing a case on the ground of bias, either actual or ostensible, requires an objective appraisal of the materials before the court. The fact that a party may have a subjective apprehension of bias is not of itself sufficient to warrant or require the disqualification of a judge.

4 The test to be applied is whether, objectively assessed, there is material before the court to support a conclusion of actual bias on the part of the judge (for which in this case the plaintiff did not contend) or a reasonable apprehension by parties or a member of the public that the judge might not bring an impartial and unprejudiced mind to the resolution of issues in the case.[1]

5 The circumstances of a judge knowing a litigant and, in particular, a litigant through prior professional relationship has been considered by the courts on a number of occasions. In Aussie Airlines Pty Ltd v Australian Airline Pty Ltd, Merkel J said:

Prior professional relationships between adjudicator and litigant have been considered on a number of occasions. The very system of judicial appointment from the senior ranks of the profession means that such prior associations are inevitable.[2]

6 The courts have demonstrated a robust approach to prior professional relationships between judges and members of the legal profession, both as litigants and as representatives of litigants. In Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd, Priestley JA with whom Hope and Glass JJA agreed, said:

The method of appointment means that built into the legal system is public knowledge and long acceptance of the fact that judges will often know to a greater or less degree the counsel and solicitors who appear before them. Also when, as not infrequently happens, members of the legal profession are parties to litigation, it is inevitable that their cases will be decided by other members of the legal profession. It has long been accepted that a judge should not sit on a case involving a person with whom he has a connection which might in fact or in appearance affect his impartiality; when the judge's connection is less than that there is no reason why he should not sit.[3]

7 In the decision of Aussie Airlines, Merkel J considered the question of the relationship between the adjudicator and the litigant and concluded as follows:

In my view, as with the cases considering personal, family and financial interests the decision in the cases dealing with professional association between adjudicator and litigant demonstrate that the courts do not take a hypothetical or unrealistic view of an association relied upon in a disqualification application. In particular they appear to accept that the reasonable bystander would expect that members of the judiciary will have had extensive professional associations with clients but that something more than the mere fact of association is required before concluding that the adjudicator might be influenced in his or her resolution of the particular case by reason of the association. Although the test is one of appearance it is an appearance that requires a cogent and rational link between the association and its capacity to influence the decision to be made in the particular case. In the absence of such a link it is difficult to see how the test for disqualification as stated in Livesey can be satisfied.[4]

8 In Bienstein v Bienstein,[5] the High Court (McHugh, Kirby and Callinan JJ) considered an appeal from a decision of Hayne J refusing to disqualify himself. Mrs Bienstein based her application on 'allegations of serious and possibly criminal misconduct in the Melbourne Registry of the Family Court and in the bodies which are supposed to regulate the Legal Profession in the state of Victoria'. She alleged that there was real possibility of an actual conflict of interest and a public perception of a conflict of interest and bias because Hayne J 'stems from the Melbourne legal fraternity and is likely to have past and continuing associations and friendships with the solicitors, barristers, serving and retired Judges and Registrars who are subject to [Mrs Bienstein's] very serious complaints'.[6]

[O]rdinarily interaction (social or otherwise) between a practising lawyer who becomes a judge and other members of the legal community in that city does not itself give rise to an apprehension of bias if one of those members is involved in proceedings before the judge.[7]

9 A further consideration is that although it is a duty of a judge to disqualify himself or herself for proper reason, that duty is met by an equal duty not to disqualify himself or herself save for a proper reason. Parties ought not to be encouraged to believe that by an application for the disqualification of a judge they can have their case heard by a judge thought to be more likely to decide a case in their favour.[8]

10 Counsel for the plaintiff was unable to make any submission as to why the professional relationship identified in my disclosure would have the capacity to create, in the eyes of a reasonable observer, a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the resolution of issues in the case. Neither was he able to cite any authority supporting the proposition that such a professional relationship simpliciter could constitute a basis for disqualification. In my opinion, the authorities make it plain that, without more, a simple professional relationship does not justify a judge disqualifying himself or herself from hearing an application.

11 In this case there are a number of further relevant factors.

12 First, the plaintiff's position is that no objection would be taken to Justice Hargrave hearing this application. However, the plaintiff's lawyers would be well aware of the fact that Justice Hargrave would have known the third defendant during his time at the Bar; and whilst Justice Hargrave has been on the Bench, undoubtedly the third defendant has appeared before him. No submission was made as to why the plaintiff was less concerned about Justice Hargrave's professional relationship with the third defendant. It is not appropriate for a judge to accede to a disqualification application that appears to be motivated by a party's preference that 'their case [be] tried by someone thought to be more likely to decide the case in their favour'.[9]

13 Second, there would be few, if any other, judges of this Court (and in particular the Commercial Court) who would not have some prior professional association with the third defendant. Although senior counsel for the plaintiff indicated today that it was proposed that there would be an application for this matter to be determined by an interstate judge, it is common ground that this application has not been made up to this point in time.

14 Third, on this application no issues of the credit of the third defendant or any other witness will be considered.

15 Fourth, the underlying dispute in this case has proceeded over a very long period of time. The proceeding, in respect of which judgment is sought to be set aside, was originally filed in the Federal Court in 2002. It requires expeditious resolution.

16 Accordingly, I reject the application that I disqualify myself from hearing the application.

[1] Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225, 231 [30].

[2] [1996] FCA 1308; (1996) 65 FCR 215, 222 ('Aussie Airlines').

[4] [1996] FCA 1308; (1996) 65 FCR 215, 223-4 (emphasis in original).

[8] Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272, 275-277.

[9] Re Renaud; Ex parte CJL [1986] HCA 39; (1986) 60 ALJR 528, 532 (Mason J).

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Cases Cited (4)