Shelton v National Roads and Motorists Association Ltd

REASONS FOR JUDGMENT 1 This is an urgent application brought on behalf of the applicant yesterday afternoon seeking an order that I disqualify myself from hearing further proceedings in this matter. The application is based on two grounds.

Apprehension of Bias - Mr and Mrs Kelly 2 One submission by Mr Camilleri, counsel for the applicant, in substance is as follows: · the legal community is in Sydney is a close group; · Mr Vincent Kelly is a solicitor known to many practitioners; · Mr Kelly's firm over many years acted for the National Roads and Motorists' Association ("NRMA"); · I may know Mr Kelly, or his wife, who will be a witness in the proceeding; · I may have been briefed by Mr Kelly, or by his firm; and · therefore I should disqualify myself. 3 Mr Robb, QC, who appeared for a number of the respondents, opposed the application for disqualification. He submitted that this application lacked substance and should be dismissed. 4 The disqualification of a judge from proceedings which are being case-managed by that judge, and in respect of which an important application is listed for hearing in the immediate future, can cause disruption, incur expense, and result in delays to the resolution of the dispute. It is not a step to be taken lightly. There must be some real and substantial basis for making the application based on principled submissions, and, where possible, some evidence of matters relied on or circumstances which might give some support to making good a ground for disqualification. It is not an application to be based on speculative supposition, suggestion or mere possibility. As the High Court said in Livesy v New South Wales Bar Association (1983) 151 CLR 288 at 294: " … it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party to do so on the grounds of a possible appearance of prejudgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court." 5 Although not expressed as such, this submission appears to be based on the ground of possible bias. The relevant principle was expressed by the High Court in Johnson v Johnson (2000) 201 CLR 488 at [11] 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." 6 In Bienstein v Bienstein (2003) 195 ALR 225 at [33] the High Court expressed the principle in these terms, in relation to personal relationships as being a ground for disqualification: "Relevantly to the present matter a reasonable apprehension of bias may exist where the presiding judge has a substantial personal relationship with a party to, or a person involved in, proceedings or a substantial personal relationship with the member of the family of that party or person. But absent such relationships or others like them, it is absurd to suggest that a reasonable apprehension of bias can exist merely because a person involved in the proceeding comes from the city where the judge once practised professionally or because the judge may have had professional dealings with that person in the course of professional practice." (Emphasis added) 7 Similar remarks and principles are set out by Branson J in the case of Miller v University of New South Wales (No 2) [2001] FCA 1198 at [10], where her Honour points out that ajudge has a duty to continue involvement in the proceeding if grounds for disqualification do not exist. Her Honour refers to remarks of Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352, which are in these terms: "[I]t is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour." 8 No evidence has been filed in relation to any circumstances, instances or reasons for the suggestions made in the submission in relation to Mr or Mrs Kelly. There is no basis for it. I know Mr Kelly by sight, but that is all. I have never met Mrs Kelly. I have never been briefed for the NRMA as a barrister. Nor can I recall ever being briefed by the firm in question. Accordingly, I do not accept this as a ground for disqualification.