22 The question about the admissibility of the evidence of witnesses, not present on 7 November 2001, but who express opinions about what happened on that day, was later effectively subsumed within a wider question debated on 6 June 2002, namely whether evidence of any kind is admissible on the hearing before a judge asked to disqualify him or herself for apprehended bias, there being no question but that evidence of that kind is admissible on appeal or on a hearing on an application in the nature of prohibition or certiorari.
23 Once again Ms Wentworth repeatedly made submissions that were apt to deflect attention away from the question I have just mentioned and to make submissions about other topics. Ultimately, I delivered an oral judgment in these terms:-
1 "BROWNIE AJA: The debate before the Court at the moment is whether at this stage, that is to say during the course of a submission made by the claimant that I disqualify myself on the ground of apprehended bias, evidence is admissible in the form of affidavits from the claimant and from other deponents setting out, as I understand it, their apprehension as to my demeanour and conduct principally but, perhaps, not exclusively on the occasion of 7 November last year.
2 In the course of the debate, the Court has said that it will treat as part of the Court record any tape recordings which exist, taken by the Court Reporting Branch, and will treat those tape recordings as well as the transcript as being part of the Court record, so that there is no need to tender either the transcript or the tape recordings.
3 What is left for decision is a question whether at this stage, as distinct from on appeal, the evidence in the form of the affidavits I have mentioned is admissible. The claimant has submitted forcefully that it is admissible and that there is no authority which says it is not. With respect, that does not seem to me to be accurate.
4 In Barton v Walker [1979] 2 NSWLR 740 Samuels JA, with whose judgment the other members of the Court agreed, discussed the problem at 749. He referred to various aspects of it and then said:
"The further difficulty encountered is that of the judge acting as judge in his own cause. How does the judge deal with assertions of fact which he knows to be incorrect? They might not be challenged by the party not moving. How can the judge himself introduce evidence, upon which he might have to rule, if its admissibility is challenged, and which he might ultimately have to evaluate?"
5 That statement needs to be read in the context of the claimant's written submissions of 31 May 2002. At paragraph 42 she referred to various decisions of the Court to which I will come and continued, referring to those decisions and the principles relied upon therein to submit that:
"…affidavits as to demeanour and behaviour of a judge are proper and admissible as evidence in a bias application, and to the extent that Cripps JA determined in Goktas that such affidavits to supplement the transcript should not be admitted, that he was wrong and that head note wrongly reflects any agreement with that position by Meagher JA to that course or, alternatively, seeks to re-argue that point, on the basis that the determination of Cripps JA is completely at variance with all other determinations of the Court which state that admissible evidence is to be admitted and proved in the ordinary way that is by way of affidavit, sworn testimony from witnesses, exhibits in the proceedings and is at variance and contrary to the principle that all such evidence should be admitted unreservedly in the application for disqualification and that it is not a function of the judge to do other than assess such evidence as is raised and determine whether on that evidence a reasonable person or a party would entertain an apprehension that the judge was biased against that party or improperly partial to an opposing party."
At paragraph 43:
"It is not the function of the judge in a disqualification application to refuse to admit any evidence which is raised against him which is said to support the application, nor to allow the qualification or cutting down of such evidence by cross-examination. Evidence may be raised by an opposing party to contradict the assertions made which are raised to support the application for disqualification, but that is not a matter for the judge to either refuse its admission or to allow cross-examination on the evidence."
6 The submissions go on from there.
7 The decision in Barton v Walker has been followed by the Court of Appeal in other cases, including Rajski v Wood (1989) 18 NSWLR at 512. I note that Kirby P, as he then was, thought that the matter was not beyond further argument. However, as I read that case and other cases, the precise present point was not in issue.
8 In most of the cases to which reference has been made, evidence was admitted, either by an appellate court or by a court dealing with some application such as one for an order for prohibition, as distinct from evidence being adduced before the judge whose disqualification is sought.
9 In Rajski v Wood , as already noted, the correctness of the decision in Barton was not in question. I infer from that that his Honour thought, perhaps, the matter was arguable. In Australian National Securities Ltd v Spedley Securities Ltd (1992) 26 NSWLR at 411 a Bench of five judges sat. Mahoney JA at 436 said:
"There are obvious reasons why the issue, for example, of whether a particular judge is, in fact, biased or there is an appearance of bias should not be a factual contest."
10 Meagher JA agreed with Mahoney JA. I do not think any other member of the Court expressed any view dissenting from the proposition of Mahoney JA that I have just quoted. Nor did any other judge expressly agree. That is to say, the other three left the matter silent.
11 The plaintiff has relied upon a decision of this Court in Goktas v Government Insurance Office of New South Wales (1993) 31 NSWLR 684.
12 She has said in the passage from written submissions which I have quoted, and additionally in oral submissions, that Meagher JA did not agree with the decision of Cripps JA. I think the last sentence of Meagher JA's reasons for judgment indicates the contrary.
13 In any event, Goktas was a case in which there was an appeal from a decision of a District Court judge on the ground of that judge's supposed bias. The evidence in question here was led before the Court of Appeal. I do not understand any of the three judges who constituted the court to have dealt explicitly with the question now under consideration, as distinct from having considered what should be done with the evidence once it was proffered on appeal.
14 But even as to that, the majority of the court seems to me to have decided the case in a manner contrary to the submissions advanced by the claimant. On that point it seems to me, with all due respect, that the judgment of Kirby P is a judgment of the minority.
15 In Goktas the court dealt at some length with statements made in judgments of the court in two earlier cases: Builders' Licensng Board v Mahoney (1986) 5 NSWLR 96 and Vakauta v Kelly (1988) 13 NSWLR 502, on appeal 167 CLR 568. Each of the cases of the Builders' Licensing Board and Vakauta dealt with the position on appeal as distinct from on an application such as that now before me for me to disqualify myself.
16 However, at pages 699 to 700 Cripps JA said, as it seems to me, that the evidence proffered in that case - that is to say, an affidavit from counsel who appeared at the trial in the District Court as to counsel's perception of the conduct and behaviour of the trial judge - ought not be received, or rather more accurately, ought not be relied upon in the Court of Appeal.
17 The claimant has referred to two other cases. First is the decision in Rogers v Wentworth , a decision of Handley JA of 9 October 1998. She agreed after a time that his Honour did not then consider the question that I have to consider now because it was not raised before his Honour. I put that aside.
18 She relied upon a further decision of Handley JA in Wentworth v Rogers , 15 December 2000. In that case, it seems to me his Honour was dealing with a different point, not with evidence proffered as to what had happened in court, and as to a perception of some witness as to what had happened then, but rather with evidence from a person as to what was said to have happened outside court. His Honour rejected that evidence and, as I read his Honour's reasons for judgment, he was dealing with the latter question and not the matter now posed for decision.
19 The claimant also refers to a decision of the High Court in Builders' Registration Board (Qld) v Rauber (1983) 57 ALJR 376, particularly at 384. However, once again, I do not read the judgments in that case as going to the present issue. They dealt rather with the evidence that was called when there was an application made to the Supreme Court of Queensland for prohibition.
20 The claimant has referred us to various statements concerning the general proposition of how evidence when received by an appellate court should be viewed. By and large, I really think there is little debate about that. The principles seem to be well established. But I repeat, the question with which we have been concerned for some considerable time now is whether evidence is admissible at this stage, as distinct from an appeal.
21 It seems to me the decision of the Court of Appeal in Barton v Walker is to the contrary, that that decision has been followed and applied by this court on other occasions, and that there is no occasion for this court, or for me sitting as a judge alone, to go beyond that case. It might be that the High Court will take a different view of the matter, but it does not seem to me that it is open to me to do so.
22 In those circumstances, it seems to me that I am bound to reject any affidavits, or for that matter documents which are tendered for the purpose of demonstrating the apprehension of either the claimant or other persons as to my demeanour or conduct in court.
23 The passage which I noted from the judgment of Samuels JA in Barton v Walker seems to me to highlight the difficulties involved in adopting that course. The claimant referred us to an article written by Sir Anthony Mason, which is entitled to great respect. But I do not think that I, or for that matter the Court of Appeal, should now go behind the judgment in Barton v Walker.
24 I propose therefore to reject any affidavit evidence or any other documentary evidence or, if need be, oral evidence going to the topic I have mentioned, that is to say, the perception or reasonable perception of any person as to my conduct or demeanour in court.
24 Ipp JA then said:-
"To the extent my views may be relevant, I agree".
Ms Wentworth's response to this was as follows:-
CLAIMANT: I seek both of your Honours to disqualify yourselves, now that you have attempted to suppress evidence, for your misconduct, which misconduct has drawn great disgrace on the administration of justice in this State.
In order to preserve your position as an Acting Justice and obtain funds from the State on an improper basis, you have now seen fit to attempt to suppress evidence of conduct which is reprehensible.
25 This statement needs to be considered in conjunction with her allegations that she has somehow been frightened by Ipp JA and/or by myself. It also needs to be considered in the circumstance that she had not responded to requests that she address the Court about the particular question I have mentioned, namely whether evidence is admissible before the judge whose conduct is in question, and it is to be remembered, after objection to that evidence had been taken.
26 However, Ms Wentworth then succeeded in bringing the matter before the Court of Appeal, constituted by Spigelman CJ, Mason P, and Handley JA on 23 April 2003. She sought, amongst other things, an order setting aside my ruling of 16 June 2002 about the admissibility of evidence. At [13]-[14]. The Chief Justice said:-