Spalla v St George Wholesale Finance Pty Ltd

consideration 7 The governing principle in determining whether a judge is disqualified on the ground of apprehended bias is "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": Johnson at 492 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. The focus of this test is whether an observer might conclude that the judge would decide a case "other than on its legal and factual merits": Ebner at 345 per Gleason CJ, McHugh, Gummow and Hayne JJ. 8 The High Court has emphasised that judges should not be overly hasty in acceding to motions to disqualify. This is because judges "have a duty to exercise their judicial functions when … they are assigned to cases in accordance with the practice which prevails in the court to which they belong": Ebner at 348. This ensures that litigants do not have the opportunity to select their judges (and that judges do not select their cases). 9 In this matter, the applicant has identified no factors which, considered individually or cumulatively, warrant my disqualification. The High Court has stressed that the reasonableness of any complaint of apprehended bias is "to be considered in the context of ordinary judicial practice": Johnson at 493. Thus, events occurring within the ordinary course of litigation will not give rise to an apprehension of bias. As the High Court has explained, "modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx": Johnson at 493. As a case progresses, a judge may make rulings, as needs be, on adjournment applications, the admissibility of evidence, the amendment of pleadings and the like but the fact that the ruling may suit the immediate interests of one side rather than the other does not mean that the judge has formed any concluded view about the ultimate merits of the case. From time to time, a judge may also indicate to counsel that she or he is taking some necessarily tentative view on an issue. The reason for this is most often to allow counsel an opportunity to deal with the problem that the judge perceives, whether rightly or wrongly, to lie in counsel's way. 10 As the High Court's judgment in Antoun v The Queen [2006] HCA 2 indicates, there remain limits on the manner in which a judge may conduct a case even allowing for modern case management practices. In the present case, however, the applicant has identified what are for the most part rulings that are commonplace in many trials. 11 Mr Spalla first raised the issue of my decision to continue with the hearing despite the illness of his senior counsel. As the respondents noted, this was a qualified decision. After a colloquy with the applicant's junior counsel (who has apparently over ten year's experience at the bar) I ruled that the hearing should continue in order that the applicant might present his evidence in chief notwithstanding the absence of senior counsel. The applicant's counsel apparently conceded that he could cope with the presentation of evidence in chief although not cross-examination. I ruled that I would adjourn the hearing, if needs be, to allow the applicant the benefit of senior counsel in the cross-examination of the respondents' witnesses. A date was nominated, which was available to the Court, and, on the information before me at that time, gave the applicant a sufficient opportunity to order his affairs. The respondents opposed any adjournment. My decision favoured neither party. It was a straightforward example of case management, which took account of the interests of all parties, as well as broader interests in the timely progression of cases in order that other litigants might also be heard. Decisions such as these are routine and are not proper bases for disqualifying the trial judge. 12 Similar considerations apply to Mr Spalla's complaints about my rulings concerning the admissibility of his affidavit of 1 June 2005 and his application for leave to amend further his notice of motion. The rulings have not been as Mr Spalla wanted. 13 Although strictly irrelevant, I interpolate here that that my ruling on Mr Spalla's application to amend his motion further was not entirely against him. Although I did not grant him the leave he sought there and then, I indicated that I would hear and determine his application for a declaration that the deed of settlement was unenforceable and consequential relief, upon the basis that he might rely on any general law or statutory provision as might justify such relief. This covered much of the proposed amendments. 14 Be this as it may, the mere fact a litigant does not gain rulings in his or her favour in the course of a trial does not reasonably create an apprehension of bias on the part of a fair-minded lay observer. As I have said, when such rulings are made, they will almost inevitably suit the immediate interests of one party rather than another. It may be that the less favoured party is discouraged by the turn of events, though these events may have no ultimate bearing on the outcome of the case. Whatever the ultimate and as yet unknown effect of a ruling or rulings on the ultimate outcome, an adverse ruling of this kind does not indicate that the judge has reached any view on the ultimate merits. 15 Mr Spalla also raised the fact that I was a member of a Full Court of this Court that convened to hear an appeal in a closely related matter. Since the appeal did not proceed, the fact is of no relevance to Mr Spalla's present application for my disqualification. 16 Finally, Mr Spalla reviewed the hearing transcript and identified extracts that he said suggest bias on my part against his side. It is unnecessary to review each and every one of these extracts. It is true that, on occasion, I expressed frustration with the slow progress of the hearing. For example, much Court time was spent discussing the issue of legal professional privilege. This occurred because the applicant wished to introduce into evidence counsel's written opinions yet maintain privilege for these documents as against some of the respondents. I expressed dissatisfaction that the applicant had not developed any proposal for how to do this. Ultimately, with the respondents' co-operation, a solution to this problem was found. It seemed to me, however, that, since the applicant had been assisted by senior and junior counsel prior to trial, he should have developed some proposal in advance of trial, particularly as the problem with privilege was obvious given the nature of the evidence the applicant wished to introduce. Further, at the time junior counsel informed the Court that his retainer and that of his instructor had been terminated, I sought to remind Mr Spalla of his responsibilities as a litigant. 17 It must be borne steadily in mind that as the judge in this case I have a duty to both Mr Spalla and the respondents to ensure that the trial is conducted fairly and in as timely a fashion as possible. As I have said, I also have a responsibility to other litigants who desire the Court's attention and, more broadly, to the community at large, to ensure that the resources of the Court are properly utilized. Considered in context, and having regard to what transpired in the course of the hearing, my remarks would not suggest to a reasonable fair-minded lay observer that I would be unable to decide the ultimate issues in this case other than on their legal and factual merits. 18 For these reasons, I decline to accede to Mr Spalla's application that I should disqualify myself on the ground of apprehended bias from the further hearing of this proceeding. 19 It did, however, seem to me that the letter from Russell Kennedy to Mr Spalla, which was also the subject of Mr Spalla's complaint, particularly in its last paragraph, was inappropriate. Counsel for the ninth and tenth respondents did not seek to defend it and undertook to have the matter remedied. 20 I shall hear the parties on the question of costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Associate: Dated: 18 April 2006 Counsel for the Applicant: The applicant appeared in person

Solicitor for the First and Second Respondents: Middletons

Solicitor for the Third, Fourth, Fifth and Seventh Respondents: Minter Ellison

Counsel for the Ninth and Tenth Respondents: Mr L Glick QC with Mr R S Randall

Solicitor for the Ninth and Tenth Respondents: Russell Kennedy

Date of Hearing: 7 April 2006

Date of Order: 7 April 2006

Date of Reasons for Judgment 18 April 2006