Trustees of the Christian Brothers v Enzo Cardone [1995] FCA 1309;

Trustees of the Christian Brothers v Enzo Cardone [1995] FCA 1309; - FCA 1995 case summary — Zoe

[37]

"In order to ensure the maintenance of high standards to preserve

the appearance of the neutrality and impartiality of the judges

and, as well, to avoid damage to the general reputation of the

judiciary that may attend unseemly public questioning of a judge

or challenge to his or her appearance of impartiality, a number of

useful conventions have developed. Certainly, they are regularly

followed in the practice of the Court of Appeal. If a judge

prefers, because of some past association, not to sit in cases

involving particular parties for fear of actual or imputed bias,

he or she will so indicate and, save for necessity, will not sit

in such cases.

If a judge has had any connection, even indirect, with

litigation that comes before the court, he or she will so indicate

when the list of sitting arrangements is distributed. A

substitution will then be arranged. If the connection is not

noted until the judge is actually sitting, cases have arisen where

even in mid hearing, the court has been reconstituted, usually on

the insistence of the judge concerned. Even minor connections

with the parties, with their interests or with issues raised in

the litigation are usually, in my experience, announced. Thus

where a judge holds appointment as a university chancellor, and a

case comes before the court involving a college or another

university, it has been the practice in the Court of Appeal for

the judges concerned to announce in public and at the beginning of

proceedings, the judge's appointment in order to give the parties

the opportunity to make submissions, which the judge can then

weigh. The stringency of the practice is well described by

Professor Simon Shetreet in Judges on Trial (1976) at 305:

'... When the circumstances of the case in the judge's

opinion do not justify his disqualification, he will always

disclose the matter giving rise to the difficulties and

require counsel to take instructions from the solicitors and

their client to see whether they have any objection to his

trying the case. The judge will tell counsel that if there

is an objection they should inform him without disclosing

which side objected. However, when the interest is more

than minimal or when his association with a party, witness

or counsel might give rise to the appearance of impropriety,

of unfairness or of bias, he will disqualify himself and not

leave the matter dependent upon whether or not the parties

will raise objections.'

The very practice of prior announcement is a protection of

the manifest integrity of the judicial process. It is also a

defence against later applications for disqualification which

necessarily present the problems of efficiency and cost ..."

[40]

'Usually, the facts upon which it might be thought a

reasonable apprehension of bias could arise, are known to the

litigants or at least one of them. Sometimes the judge, as a

matter of judicial integrity, makes facts known to the parties

which he considers ought to be disclosed, so that the parties or

either of them can consider whether a reasonable apprehension of

bias could arise. Even in such a case it is necessary that an

application be made that the judge disqualify himself, and it is a

matter for the exercise of the judge's discretion as to whether he

should accede to the application. the facts which a judge might

disclose are generally facts which are known to some members of

the public, not necessarily to the parties or their advisers, but

it is for the judge to decide for himself whether a disclosure

should be made, not for a litigant to venture upon a "fishing

expedition" with a view to ascertaining whether there is something

personal to the judge, and not known to him, which could found an

application that the judge disqualify himself. Judges are capable

of putting aside personal predilections arising from life's

experiences. We all, I suspect, have views, opinions and

attitudes moulded by a variety of factors. Rigorous training in

the discipline of the law and in particular the requirement of

objectivity, together with the public insistence upon judicial

integrity, mean that unless some material matter is raised by a

litigant, or voluntarily disclosed by the judge, it is accepted

that there can be no suggestion of reasonable apprehension of

bias. Edmund Burke spoke of "the cold neutrality of an impartial

judge". That is what is expected. If impartiality is lacking, or

could be fairly thought to be lacking, it may well become evident

sooner or later, but it is not for the litigant to pry into the

judge's background. It is for the judge to disclose a fact if it

seems to him that it may be thought to have a bearing upon his

neutrality. An extensive and, with respect, most useful guide to

the principles applicable to judicial disqualification is to be

found in the reasons for decision of Kirby P in S and M Motor

Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR

358 at 367-73.'

[95]

"MR KENNEDY: Well, I hear what your Honour says in that

regard and what happened at the listing hearing and I would have

to oppose that, your Honour.

HIS HONOUR: Have to what?

MR KENNEDY: I would have to oppose that.

HIS HONOUR: Yes, of course.

MR KENNEDY: But I can understand how your Honour might be

inclined that way and also understand of course that your Honour

has a duty to hear the matter if there is no actual conflict or

apprehension of a conflict or bias. But then again it seems to

me, your Honour, that it may place your Honour and the staff in a

very difficult situation, particularly if a credit issue is to

arise.

HIS HONOUR: I think if you tell me that there is a possible

issue as to credit, I have to take that seriously.

MR KENNEDY: That is the position.

HIS HONOUR: Mr Stretton, certainly if there was no issue of

the kind Mr Kennedy mentioned - and I have to accept his word as

counsel that there is such a possibility or at least a real risk

of such being the case - I certainly feel that would cause

personal embarrassment. It might not otherwise and, indeed, given

your disavowal of any desire to have the matter go over,

notwithstanding knowledge of the position, I feel that otherwise

that an apprehension of bias or interest might be otherwise

dispelled. But it does seem to me that may be a real difficulty

for me and while, if this was a matter of what I would call

urgency and no other judge available to hear it, that might be a

case where I could put that aside and would need to put that

aside, I do not suppose you could say this was a case of that

kind. Would that be right?

MR STRETTON: Your Honour, I suppose it is one thing to spar

at shadows, as it were, and I understand what my friend says, but

if my friend were prepared to make available a proof of the

evidence of the witness which there is a supposed or potential

conflict - Mr Hall - then the matter may well be resolved. I

mean, there may not be a conflict situation for all we know.

HIS HONOUR: Yes, I suppose that is true.

MR STRETTON: And then the whole matter would be resolved. So

that it seems to me that if my learned friend were prepared to do

that ---

MR KENNEDY: I am happy to do that, your Honour, it seems to

me that would be the major issue. There is another subsidiary

issue that may create a problem, may not, with all of the staff

but we could certainly discuss that, your Honour, because we are

not wishing to make this application to avoid the matter being

heard, your Honour.

HIS HONOUR: No.

MR KENNEDY: We want the matter to be heard; we want it to be

resolved. It just seemed to us that it was an unfortunate set of

circumstances that we found ourselves in."

[101]

"It seems that the acceptance by this Court of the test of

reasonable apprehension of bias in such cases as Watson (1976) 136

CLR 248 and Livesey [1983] HCA 17; (1983) 151 CLR 288 has led to an increase in

the frequency of applications by litigants that judicial officers

should disqualify themselves from sitting in particular cases on

account of their participation in other proceedings involving one

of the litigants or on account of conduct during the litigation.

It needs to be said loudly and clearly that the ground of

disqualification is a reasonable apprehension that the judicial

officer will not decide the case impartially or without prejudice,

rather than that he will decide the case adversely to one party.

There may be many situations in which previous decisions of a

judicial officer on issues of fact and law may generate an

expectation that he is likely to decide issues in a particular

case adversely to one of the parties. But this does not mean

either that he will approach the issues in that case otherwise

than with an impartial and unprejudiced mind in the sense in which

that expression is used in the authorities or that his previous

decisions provide an acceptable basis for inferring that there is

a reasonable apprehension that he will approach the issues in this

way. In cases of this kind, disqualification is only made out by

showing that there is a reasonable apprehension of bias by reason

of prejudgement and this must be "firmly established": Reg v

Commonwealth Conciliation and Arbitration Commission; Ex parte

Angliss Group (1969) 122 CLR 546, at pp 553-554; Watson (1976) 136

CLR at p 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 at p 14;

32 ALR 47, at pp 50-51. Although it is important that justice

must be seen to be done, it 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."

[117]

"So far as bias is concerned, it was acknowledged that there was

no actual bias on the part of Mr Lannon, and no want of good

faith. But it was said that there was, albeit unconscious, a real

likelihood of bias. This is a matter on which the law is not

altogether clear: but I start with the oft-repeated saying of

Lord Hewart CJ in Rex v Sussex Justices, Ex parte McCarthy (1924)

1 KB 256, 259: "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."

In Reg v Barnsley Licensing Justices, Ex parte Barnsley and

District Licensed Victuallers' Association (1960) 2 QB 167, 187;

(1960) 3 WLR 305; (1960) 2 All ER 703, CA, Devlin J appears to

have limited that principle considerably, but I would stand by it.

It brings home this point: 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: see Reg v Huggins (1895) 1 QB 563; and Rex v Sunderland

Justices (1901) 2 KB 357, CA, per Vaughan Williams JC Ibid 373.

Nevertheless there must appear to be a real likelihood of bias.

Surmise or conjecture is not enough: see Reg v Camborne Justices,

Ex parte Pearce (1955) 1 WB 41, 48-51; (1954) 3 WLR 415; (1954) 2

All ER 859, DC, and Reg v Nailsworth Licensing Justices, Ex parte

Bird (1953) 1 WLR 1046; (1953) 2 All ER 652, DC. 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."

[125]

"There can, I think, be no doubt that an objection upon the ground

of bias can be waived. Even where it is a question of the public

apprehension of bias, the parties themselves must be competent to

waive the objection. Although justice must manifestly be seen to

be done, where a party, being aware of his right to object, waives

that right, there will be little danger of the appearance of

injustice. In the case of a criminal prosecution where the public

is directly interested in the outcome, it may be different, but

even in such a case, Isaacs J in Dickason v Edwards (1910) 10 CLR

243, at p 260, was clearly of the view that a party may waive the

objection. He said:

"So that the principle seems to me to be this - that, if the

person whose presence is challenged can fairly be said to be

biased, either by reason of his necessary interest or by

reason of some pre-determination he has arrived at in the

course of the case, then he ought not to act unless there is

something to relieve him from these disqualifications. Even

in a public prosecution a party may waive the objection.

One of the strongest examples of this is the case of

Wakefield Local Board of Health v West Riding and Grimsby

Railway Co (1865) 6 B and S 794 [1865] EngR 726; (122 ER 1386). There the

Statute provided that the justices should be disinterested

parties, but the words were held not necessarily to prevent

waiver. A distinction has been drawn between public

judicial tribunals and private judicial tribunals, but I am

not satisfied that that is a sound distinction."

There is abundant authority which establishes, at all events in

civil cases, that a party may waive his right to object on the

ground of bias. As Hood J said in Re McCrory; Ex parte Rivett

[1895] VicLawRp 2; (1895) 21 VLR 3 at p 6:

"A litigant who knows (as the applicant did here) that there

may be some objection to the constitution of the Bench is

bound to mention it at once, in fairness both to the

magistrate and to the other side, and even if the objection

be a good one the litigant cannot afterwards be allowed to

complain if with knowledge he remains silent ...""

At a glance

Court

Decision date

Before

Source

Judgment (134 paragraphs)

Trustees of the Christian Brothers v Enzo Cardone [1995] FCA 1309; (1995) 130 ALR 345 (20 June 1995)

Parties

Cases Cited (22)