R v Watson; Ex parte Armstrong

R v Watson; Ex parte Armstrong - [1976] HCA 39 - HCA 1976 case summary — Zoe

[9]

There were four further appearances before Watson J. before 24th May 1976 and various interlocutory questions were dealt with. It is unnecessary for present purposes to do more than state shortly the position which the proceedings had reached immediately before 24th May. On 14th May the wife had apparently filed a further affidavit (which is not before this Court, but which she described as "an extensive and detailed affidavit setting out my husband's assets which I estimated to be worth some $10,000,000 to $15,000,000"). On the same day the husband had sworn what appears to be the only affidavit so far filed on his behalf as to his financial position. The affidavit dealt largely with the property owned by a company called Alexmar Investments Pty. Ltd. and by a number of other companies which were subsidiaries of that company. The affidavit showed that these companies held assets of very considerable value but it was stated that most of the shares in Alexmar Investments Pty. Ltd. were held by the husband and by a holding company as trustees of family trusts for the benefit of the husband's children and remoter issue. It was also stated in the affidavit that further material would be filed as to two other companies, Aurelius Investment Establishment and Trident Ltd., which it appears from affidavits filed by the wife are incorporated outside Australia. The affidavit did not purport to set out the assets and liabilities of the husband himself. The husband had also filed an affidavit as to the wife's standard of living. In addition he had filed an affidavit of discovery which, however, the wife contends is quite insufficient. The wife had delivered to the husband lengthy interrogatories but these had not been answered; however, when, as will be mentioned, the matter came before the Court on the afternoon of 24th May draft answers to about half the questions asked were handed to the wife's legal advisers. According to the wife, the documents to which she has had access show that the husband's financial transactions were on a large scale and of very great complexity and this statement hardly seems open to question. She alleged that large sums had been remitted abroad and that the husband had created at least thirty-seven trusts, some of which she said that she proposes to attempt to set aside. On 20th May 1976 an examination by the wife's legal advisers of a letter produced by the Reserve Bank had revealed that a firm of solicitors, who stated that they were acting on behalf of the husband as well as on behalf of two of his daughters, had said that the husband was contemplating leaving Australia at about the end of April with a view to taking up residence in Austria. Thereupon the wife obtained from Watson J., by telephone, an injunction restraining the husband from completing certain sales referred to in the letter. The consideration for one of these sales exceeded $4.8 million and the consideration for another exceeded $3.1 million.

[23]

What has been said does not indicate approval of the course taken by the learned judge. It is quite unnecessary to consider whether he had power to direct the wife to file the affidavit, but assuming that he had such power it was perhaps unwise to exercise it on his own motion and by giving a direction in the terms which he used. If it had seemed to him that the wife's advisers might overlook the need to adduce relevant material, it would have been quite unobjectionable for him to have drawn their attention to the need for it. When the wife did file an affidavit, it was premature for the learned judge to reject it when no one was attempting to read it, and in any case the affidavit was not rendered inadmissible simply because it did not contain all the information which the learned judge thought was necessary. These matters do not lend support to a charge of bias, but the active intervention of the learned judge in this way at this interlocutory stage was consistent with his remark that the proceedings were not adversary proceedings but were in the nature of an inquisition followed by an arbitration. It is impossible to allow that observation to pass uncorrected. It indicated a basic misconception as to the position of the Court in proceedings of this kind under the Family Law Act 1975. Proceedings in which a wife seeks an order for maintenance or the settlement of property may involve a dispute as to property of great value and will often be bitterly contested on both sides. The order made determining such proceedings may be of the utmost importance to the future of both parties. The judge called upon to decide proceedings of that kind is not entitled to do what has been described as "palm tree justice". No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down (in such sections as ss. 43, 72, 75 and 79, whichever may be applicable). He must also follow the procedure provided by the law. The provisions of s. 97 (3) of the Act, which require him to proceed without undue formality, do not authorize him to convert proceedings between parties into an inquiry which he conducts as he chooses. The provisions of reg. 108 (2), which enable the court "with the consent of the parties to the proceedings" to dispense with such procedures and formalities as it thinks fit, show that without such consent the Court has no such dispensing power. A judge can neither deprive a party of the right to present a proper case nor absolve a party who bears the onus of proof from the necessity of discharging it. These remarks are not intended to fetter a judge of the Family Court in the exercise of a proper discretion or to insist upon the observance of unnecessary formality; they are designed to make it clear that a judge of the Family Court exercises judicial power and must discharge his duty judicially.

[24]

It is then necessary to turn to the second ground on which prohibition is sought, namely, that the learned judge has prejudged the wife's credit to her disadvantage. This ground in substance also alleges bias - not of course bias through interest, nor by reason of relationship, friendship or enmity, but bias "by reason of some pre-determination he has arrived at in the course of the case": per Isaacs J. in Dickason v. Edwards [1] . In stating that there was actual bias in this sense, the wife has gone further than she needs to go, and, as some would say, further than it was right for her to go. It is clear that to disqualify a judge from sitting it is not necessary that it should be shown that he was in fact biased. There has, however, been a difference of opinion as to the test that should be applied when bias is suggested. One view is that it is necessary for the person seeking prohibition to show that "there is a real likelihood that the judge would, from kindred or any other cause, have a bias in favour of one of the parties": per Blackburn J. in Reg. v. Rand [2] ; the other view is that it is enough that the judge could "reasonably be suspected of being biassed": per Lord Esher M.R. in Allinson v. General Council of Medical Education and Registration [3] . Sometimes these two tests have been applied in conjunction. It would serve no useful purpose to cite the many authorities in which one view or the other has been espoused. Some of those authorities were reviewed in Reg. v. Camborne Justices; Ex parte Pearce [4] , where it was held that it is necessary for the applicant to show a real likelihood of bias. The same view was taken in Reg. v. Barnsley Licensing Justices; Ex parte Barnsley and District Licensed Victuallers' Association [5] where Devlin L.J. said that it is immaterial what impression might have been left on the minds of the applicants or of the public generally, and that it was not enough that an impression that the tribunal had been biased might reasonably get abroad. However, in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon [6] the Court of Appeal again considered this question and did not accept the statement of the law in those two decisions. Lord Denning M.R. commenced his discussion by citing the oft-repeated saying of Lord Hewart C.J. in R. v. Sussex Justices; Ex parte McCarthy [7] : "It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done." After saying that he stood by that principle, Lord Denning M.R. continued [8] :

[25]

in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand. Nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: "The judge was biased." Danckwerts L.J., who dealt with the matter quite shortly, appears to have accepted that it would be enough to justify the court's interference if a person knowing the circumstances might reasonably feel doubts as to the tribunal's impartiality [9] . Edmund Davies L.J. was clearly of the view that the court should interfere if it considered that it would appear to right-thinking people that there were solid grounds for suspecting that a member of the tribunal responsible for the decision may (however unconsciously) have been biased [10] . He expressed his conclusions as follows [11] : With profound respect to those who have propounded the "real likelihood" test, I take the view that the requirement that justice must manifestly be done operates with undiminished force in cases where bias is alleged and that any development of the law which appears to emasculate that requirement should be strongly resisted. That the different tests, even when applied to the same facts, may lead to different results is illustrated by Reg. v. Barnsley Licensing Justices [12] itself, as Devlin L.J. made clear in the passage I have quoted. But I cannot bring myself to hold that a decision may properly be allowed to stand even although there is reasonable suspicion of bias on the part of one or more members of the adjudicating body. It has since been doubted whether in practice materially different results would follow from the adoption of one test rather than another: see Hannam v. Bradford Corporation [13] . No doubt in many cases it will be immaterial which test is applied, but that is not universally true, as Edmund Davies L.J. pointed out in the passage already cited from Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon [14] . It has also been said that the "two tests are often overlapping and it may be that one is appropriate to one situation and another is appropriate to another situation": Reg. v. Altrincham Justices; Ex parte Pennington [15] . However that may be, the judgments of the Court of Appeal in Metropolitan Properties Co. (F.G.C.) Ltd v. Lannon provide authority for the proposition that if there is a reasonable suspicion of bias against a judge that is enough to warrant the court's interference. 1. (1910) 10 C.L.R. 243, at p. 260. 2. (1866) L.R. 1 Q.B. 230, at p. 233. 3. [1894] 1 Q.B. 750, at p. 759. 4. [1955] 1 Q.B. 41, at pp. 47-51. 5. [1960] 2 Q.B. 167, at p. 187. 6. [1969] 1 Q.B. 577. 7. [1924] 1 K.B. 256, at p. 259. 8. [1969] 1 Q.B., at p. 599. 9. [1969] 1 Q.B., at p. 602. 10. [1969] 1 Q.B., at p. 605. 11. [1969] 1 Q.B., at p. 606. 12. [1960] 2 Q.B. 167. 13. [1970] 1 W.L.R. 937, at pp. 942, 949; [1970] 2 All E.R. 690, at p. 700. 14. [1969] 1 Q.B., at p. 606. 15. [1975] 1 Q.B. 549, at pp. 553-554.

[27]

But when bias of this kind is in question, as distinguished from a bias through interest, before it amounts to a disqualification it is necessary that there should be strong grounds for supposing that the judicial or quasi-judicial officer has so acted that he cannot be expected fairly to discharge his duties. 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. It has been said that "preconceived opinions - though it is unfortunate that a judge should have any - do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded", per Charles J., Reg. v. London County Council; Ex parte Empire Theatre [23] . The learned justices in that case appear to have considered that to warrant the grant of prohibition it is necessary that there should be shown a real likelihood of bias, and that the fact that reasonable persons would distrust the result is evidence of, or perhaps a consequence of, that likelihood. However, if doubts were left by that decision as to the correct approach to this question, they were removed by Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [24] . In that case it was again submitted that observations made by the tribunal against which prohibition was sought suggested that it had prejudged the issue. It was held that the expression of an attitude of mind by members of the Commonwealth Conciliation and Arbitration Commission on a matter of principle would not justify a reasonable apprehension that those members might not bring fair and unprejudiced minds to the resolution of the question arising before them. In a joint judgment, delivered by all seven members then constituting the Court, it was said [25] : The common law principles of natural justice are well understood though they have been variously expressed. It is sufficient here in relation to that aspect of those principles which is called in aid by the applicant to recall the well known passages from Allinson v. General Council of Medical Education and Registration [26] , as cited and commented upon by Isaacs J. in Dickason v. Edwards [27] , and from R. v. Sussex Justices; Ex parte McCarthy [28] . A recent exposition is to be found in the judgment of the Master of the Rolls in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon [29] .

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Judgment (279 paragraphs)

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