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[2002] NSWSC 1198
Supreme Court of NSW
2002-12-16
Barrett J, Mr P
Original judgment source is linked above.
Introduction 1 By a further further amended summons filed on 24 July 2002, the plaintiffs sought: "1. An Order in so far as it is necessary that the Plaintiffs be granted leave to appeal against part of the determination of the costs assessor Ian Dwyer in costs assessment number 91247/00. 2. An Order that the determination of Ian Dwyer, Costs Assessor, in costs assessment number 91247 of 2000 at paragraph 4(b)(x) that Ms Lydiard and Ms Preston of counsel and Mr Licardy, solicitor were acting on a no win no pay basis and not a Pro-Bono basis and that Mr Licardy was not appointed by the Law Society as a pro bono Solicitor but that he was retained by the Applicant throughout on a no win no pay basis, be set aside. 3. In lieu of the determinations by Ian Dwyer, Costs Assessor, as set out in paragraph 2 a declaration that the Defendant was represented pro bono and was not entitled to any costs for his legal representation.
I said: Again I can say that I never heard your name mentioned within Mallesons Stephen Jaques in connection with any matter that Mallesons Stephen Jaques were handling during the time that I was there and I most certainly had no involvement in any work done within Mallesons relating to you." 19 Having set out the pertinent parts of the first plaintiff's affidavit, as well as the applicable transcript content, I shall now deal with the extracted paragraphs of the affidavit in turn, at the same time correcting what I know to be errors of fact.
Paragraphs 5 to 7 : I was an employee or partner of Allen Allen & Hemsley continuously from January 1964 to March 1991. In the course of that unbroken period of association, I practised at an Allen Allen & Hemsley office outside New South Wales from October 1987 to December 1989.
Paragraph 8 : I retired as a partner of Allen Allen & Hemsley on 31 March 1991 and, on 1 April 1991, became an employee of Westpac Banking Corporation, being its group secretary and general counsel.
Paragraphs 9 and 10 : I resigned from my position at Westpac Banking Corporation effective 30 April 1995 and, on 1 May 1995, became a partner of Mallesons Stephen Jaques, a position I held until my retirement in March 2001 prior to my appointment as a judge of this court on 19 March 2001.
Paragraphs 11 to 15 : I have no knowledge of and was never involved in any of these matters. I was unaware of their existence until I read the affidavit of 30 October 2002. I have no recollection of seeing the first plaintiff at Allen Allen & Hemsley or elsewhere in 1980 or 1981. Whether or not she saw me at Allen Allen & Hemsly in those years I cannot say. I attended the office in Sydney every weekday, except when absent on holiday or business or through illness or some other cause. I had the conduct of certain matters for the then Bank of New South Wales (afterwards Westpac Banking Corporation) at Allen Allen & Hemsley in 1980 and 1981 but these did not include anything touching upon the first plaintiff or members of her family. The types of matters to which I attended are described in the transcript extract I have already quoted. I have no knowledge of anything that passed between anyone at Allen Allen & Hemsley and the first plaintiff about the matters to which these paragraphs refer.
Paragraph 16 : If it is relevant, I state that I did not know of the existence of the so-called "Westpac letters" until the time there was press publicity about them in, I think, late 1990 or early 1991. I have no recollection of any media reports of my having been "involved with" the creation of the "Westpac letters" or any "Westpac letters scandal". Mr Jones retired as a partner of Allen Allen & Hemsley several years after I did. There was no occasion for me to be made aware by anyone of the reasons for his having done so and I have no knowledge of the reasons except from the press.
Paragraph 17 : This belief is in error. No basis for it is stated. None can exist.
Paragraphs 18 to 22 : I had no knowledge of these matters before I read the affidavit. The belief stated in paragraph 19 is in error. No basis for it is stated. None can exist. I had no involvement, correspondence or conversation of any kind with Mr Jones concerning the first plaintiff or any member of her family.
Paragraph 25 : If it is relevant, I state that I have been aware for a long time that, according to historical accounts, D'Arcy Wentworth was one of the founders of the Bank of New South Wales. I have never been aware that the supposed "grant of authority" devolved in the way stated in this paragraph, assuming that it did (the significance of any such devolution being, in any event, obscure since the creation of a body corporate by the Bank of New South Wales Act of 1850).
Paragraph 26 : I have no knowledge of and was never involved in these matters. I was unaware of their existence until I read the affidavit. I never gave any such advice to Westpac. I do not recall ever hearing or seeing reference to the first plaintiff as a customer of Westpac; nor did I know, until I saw the affidavit, that she had a relationship with that bank.
Paragraphs 27 to 31 : I have no knowledge of and was never involved in these matters. I do not recall ever hearing or seeing, while I was at Mallesons Stephen Jaques, reference to the first plaintiff as a party to any dispute or litigation with a client of that firm.
Paragraph 32 : As stated above, I became an employee of Westpac in 1991.
Paragraphs 33 to 39 : Except for what I may have read in newspapers and law reports, I have no knowledge of any of these matters. I did not advise Westpac on any such matter. I ceased to be employed by Westpac on 30 April 1995, having ceased active duty on 31 March 1995 prior to taking accrued leave. I was accordingly an active employee for only the first three months of the two year period described as "1995/6".
Paragraphs 41 to 45 : Except for what I may have read in newspapers and law reports or learned in the course of the present proceedings, I have no knowledge of any of these matters. 20 As I have said, the first plaintiff returned to the matter of Westpac in the course of the hearing, commenting that "Mr Joss" had been involved in the resolution of her disputes with that bank. Mr R L Joss became the managing director of Westpac Banking Corporation in early 1993. He remained in that position for several years after my resignation on 30 April 1995. As group secretary and general counsel, I reported directly to him from the time of his appointment until my resignation. He regularly sought my advice on legal matters affecting the corporation during that period. I have absolutely no recollection of his ever having raised with me anything concerning the first plaintiff or any member of her family. 21 I turn now to the legal principles to be applied in a case such as this. They are conveniently collected in Wentworth v Wentworth (unreported, NSWSC, 10 July 1997), a case in which, as here, a party had, after delivery of judgment and the making of orders, asked that the trial judge set aside the judgment and orders. Several grounds were advanced by the applicant, one being that the judge should have disqualified himself at the outset for bias. The alleged bias arose from the fact that the judge's son had been employed by the Attorney-General at a time when the Attorney-General was deciding whether to initiate certain proceedings against the applicant. After dealing with the circumstances arising from his son's employment, to the extent that they may have had relevance to his own position, the learned judge said: "The submissions of the plaintiff as to bias, particularly as contained in the Outline Submissions of the Plaintiff quoted above, are based on generalised assertions unsupported by evidence of the relevant primary facts. It is accordingly, not possible to make any specific findings of fact in relation to that material. However, having regard, inter alia, to the content of the statement made by me on 30 May 1997 as set out above, and to the other relevant circumstances of the case, I am of the opinion that, in accordance with the relevant authorities, and for the reasons appearing hereafter, I am not required to set aside my judgment of 20 December 1996 on the ground of bias, and I decline to do so. The relevant principles relating to disqualification for bias or appearance of bias have been dealt with, inter alia, in the following passages from various judgments in the High Court:- '... That principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it. That principle has subsequently been applied in this Court ... and in the Supreme Court of New South Wales ... Although statements of the principle commonly speak of "suspicion of bias", we prefer to avoid the use of that phrase because it sometimes conveys unintended nuances of meaning': per Mason, Murphy, Brennan, Deane and Dawson JJ in Livesey v The New South Wales Bar Association (1982-83) 151 CLR 288 at 293-294. 'The problem is governed by the principle that a judge should disqualified himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the issues ... This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free from bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done': per Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 351 352. 'I accept the observation of McHugh JA in the instant case that "in the case of a professional judge whose training, tradition and oath or affirmation require him to discard the irrelevant, the immaterial and the prejudicial, a conclusion that there is a reasonable apprehension that he is biased should not be drawn lightly". In effect, that is what this Court said in Livesey . And it is true, as Clarke JA pointed out, that it is a "reasonable apprehension" with which the court is concerned. And, if it adds anything, it is such an apprehension in "a fair-minded observer": Livesey ': per Toohey J in Vakauta v Kelly (1988-89) 167 CLR 568 at 584-585. '... In assessing what the hypothetical reaction of a fair-minded observer would be, we must attribute to him or her knowledge of the actual circumstances of the case': per Mason CJ and Brennan J in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87. 'When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her': per Gaudron and McHugh JJ in Laws v Australian Broadcasting Tribunal , ibid, at 100. '... the premise on which the decisions in this Court are based is that public confidence in the administration of justice is more likely to be maintained if the Court adopts a test that reflects the reaction of the ordinary reasonable member of the public to the irregularity in question. References to the reasonable apprehension of the "lay observer", the "fair-minded observer", the "fair-minded, informed lay observer", "fair-minded people", the "reasonable or fair-minded observer", the "parties or the public" and the "reasonable person" abound in the decisions of this Court and other courts in this country. They indicate that it is the court's view of the public's view, not the court's own view, which is determinative. If public confidence in the administration of justice is to be maintained, the approach that is taken by fair-minded and informed members of the public cannot be ignored. Indeed, as Toohey J pointed out in Vakauta in considering whether an allegation of bias on the part of a judge has been made out, the public perception of the judiciary is not advanced by attributing to a fair-minded member of the public a knowledge of the law and the judicial process which ordinary experience suggests is not the case. That does not mean that the trial judge's opinions and findings are irrelevant. The fair-minded and informed observer would place great weight on the judge's view of the facts. Indeed, in many cases the fair-minded observer would be bound to evaluate the incident in terms of the judge's findings': per Mason CJ and McHugh J in Webb v The Queen (1994) 181 CLR 41 at 51-52." 22 The central theme here is that matters must be judged according to any reasonable apprehension that would be entertained by a reasonable or fair-minded observer. The facts by reference to which such an observer would approach the present matter are, first, that I was a partner of each of two large firms of solicitors at times when other partners there were apparently engaged in representing interests opposed to those of the first plaintiff; second, that I was the most senior legal officer of a bank with several million customers at a time the first plaintiff, as a customer, was involved in a dispute with that bank having legal ramifications (although it appears that resolution of the dispute may have occurred after my employment with the bank had ended); third, that I had no involvement in any of the work done or advice given within either of the firms or the bank in relation to any such matter concerning the first plaintiff; and, fourth, that I have no recollection whatsoever of even being aware of the existence of any such matter. 23 The attributes of the reasonable or fair-minded observer and the ways of thinking he or she adopts have been the subject of discussion in a number of cases. The leading Australian judicial statements are referred to in the judgment of Pill LJ of the English Court of Appeal in Lawal v Northern Spirit Ltd [2002] EWCA Civ 327: "The concept of what Lord Hope [in Porter v Magill [2002] 2 WLR 37] described as the 'fair-minded and informed observer' was considered in the High Court of Australia in Johnson (2002) 174 ALR 655, cited with approval by Laws LJ in Sengupta v Holmes & Ors ; The General Medical Council and the Lord Chancellor's Department intervening (transcript 31 July 2002), Kirby J stated, at para 53: 'The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on fair understanding of all the relevant circumstances. …' Kirby J also stated (para 52) that 'it is necessary to consider the impression which the same facts might reasonably have upon the parties and the public. It is their confidence which must be won and maintained'. Laws LJ also cited in the judgment of Bleby J in the Supreme Court of South Australia in Southern Equities Corporation Ltd v Bond [2000] SASC 450: 'In order to determine the likely attitude of fair-minded lay observer, the judge must be clothed with the mantle of someone the judge is not. One must avoid the natural temptation to view the judicial conduct, state of knowledge, association or interest in question through the eyes of a professional judge. … one must be careful not to attribute to the lay observer judicial qualities of discernment, detachment and objectivity which judges take for granted in each other.' In Johnson , it was stated in the judgment of Gleeson CJ, Gaudron, McHugh, Gummow, and Hayne JJ, at paragraph 12, that 'the hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary and is not based purely upon the assessment of some judges of the capacity or performance of their colleagues'. It was the position of a professional judge, which was, as it was in Sengupta , under challenge. The Court added: 'At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require the [judge] to discard the irrelevant, the immaterial and the prejudicial".' [The citation within that passage is from the judgment of McHugh JA in Vakauta v Kelly (1998) 13 NSWLR 502 at 527.] In my judgment, the requirement of public confidence and the importance of the appearance of justice, are important factors in resolving the present issue. The need to consider the perception of a lay observer reflects those factors." 24 Every judge has a past. The question in cases such as the present is whether something in that past would be seen by the reasonable or fair-minded observer as having the potential to divert the judge from deciding the case on its merits. Case law makes it plain that that observer is to be taken to bring a balanced and sensible mind to the inquiry, with a consciousness of the professional commitment of judges to act objectively and their sworn duty to act impartially, mindful also of the waste of resource and delay that can be brought about by too tender an assessment of the relevance of past associations. 25 In my judgment, the reasonable and fair-minded observer, aware of all the circumstances, would not have held, by reference to the matters in paragraphs 2 to 45 of the first plaintiff's affidavit of 30 October 2002, any reasonable apprehension of bias on my part in the determination of the applications on which I gave judgment on 15 August 2002 and 4 October 2002. I do not lose sight of the fact that cases involving solicitors who are partners in firms give rise to more complex considerations than those involving sole practitioners such as barristers (see Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451), but the distinctions fall away once the practitioner has retired from practice and become a full time judge. The reasonable and fair-minded observer would have appreciated that, when I heard the applications and gave judgment on 15 August and 4 October, I had no connection with the firms and the bank upon which the first plaintiff's concerns are centred and no knowledge of any of the matters raised by her, with the result that I was unaffected by anything from those sources which had the capacity to cause me to be affected by bias. 26 The reasonable and fair-minded observer would also have seen through the first defendant's attempt to eke out some shadow or hint of bias by showing merely that I was at a particular firm or corporation when someone else within it was, according to her account, engaged in representing or pursuing interests inconsistent with her own or, at least, regarded by her as inconsistent. Coincidence of time and place assume, in the first plaintiff's submissions, the proportions of necessary cause and effect: compare Rogers v Wentworth (unreported, NSWCA, 9 October 1998) where one party submitted that a judge should stand aside on account of bias because the judge and the other party to the litigation had attended the same school at the same time, with the judge being a year ahead of the litigant and having no recollection of having met the litigant then or at any subsequent time. The present submissions are based on flimsiness and non sequitur of the same kind. 27 I decline to set aside my judgments of 15 August 2002 and 4 October 2002. The claim in item 2 of the notice of motion filed on 23 October 2002 is accordingly dismissed. The first plaintiff's second claim 28 The second proposition the first plaintiff advances on the present application is that I should disqualify myself from hearing and determining the plaintiffs' s.208L appeal because, in determining the s.208M application for leave to appeal, I have prejudged one of the key questions to be decided on the s.208L appeal, namely, the way in which s.184(4) operated in the particular case. 29 It is necessary to say something about the relationship between the two sections. Section 208L, clearly enough, involves determination by the court of the matter of law by reference to which the appeal under that section is brought. Section 208M, by contrast, entails, at the s.208M(1) stage, a decision whether a particular appeal, which may or may not involve a matter of law as well as some matter or matters not being matters of law, is of sufficient cogency that the party wishing to bring the appeal before the court should be allowed to do so. If leave is granted under s.208M, the resultant appeal is unconstrained in that the appellant may advance matters of fact and matters of law alike in arguing that the original decision should be overturned. That being so, I saw it as both necessary and appropriate, in considering the leave question, to canvass the various aspects of the original decision I regarded as material to the possibility that that decision may have miscarried in a way warranting the grant of leave to appeal. 30 One such aspect was the meaning and operation of s.184(4) in the particular context. At paragraph 19 of the judgment of 15 August 2002, I stated my view of the purpose of s.184(4). At various other places, I expressed opinions as to the application and operation of the section. I saw this as integral to the question whether leave should be granted so that an appeal against the original decision might proceed. The first plaintiff's submissions on this part of the present application amounted, in essence, to a wide-ranging and comprehensive critique of my judgment of 15 August 2002 in which she covered in detail the ground that would no doubt have been covered had her application for re-opening been successful. In the course of those submissions (parts of which formed the remaining paragraphs of her affidavit of 30 October 2002), the first plaintiff made clear her opinion not only that I had fallen into error in a number of ways relevant to the proper interpretation and application of s.184(4) to the circumstances of this case but also that I had, by my observations in relation to that section and its operation, compromised my ability to receive and deal with in a fully objective way such submissions as would be addressed to me on those issues in the s.208L appeal. 31 The first plaintiff's contentions in this area are based on what Kirby P described in Australian National Industries Ltd v Spedley Securities Ltd (1992) 26 NSWLR 411 as "the natural human desire for consistency of thought and action and the usual inclination of any human being to uphold an opinion earlier expressed if supported by grounds which seemed totally convincing to that person at the time of their expression". Again, of course, the determinant is the reaction of the hypothetical reasonable or fair-minded observer whose characteristics have already been noticed. 32 The fact that a judge's previous decisions on issues of fact and law may generate an expectation that he or she is likely to decide issues in a particular case adversely to one of the parties does not mean that the judge will approach that case otherwise than with an impartial and unprejudiced mind or that the previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that the judge will approach the case in that way. This is made clear in the judgment of Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342; see also Kartinyeri v Commonwealth (No 2) (1998) 72 ALJR 1334. The position is even clearer where a judge makes an order ex parte on the expressed basis that he may change his mind if and when the other party exercises leave to be heard. There is, in such a case, a clear recognition that the original mindset may be altered: see Brown v DML Resources Pty Ltd [2001] NSWSC 250. 33 I consider the present case to be distinguishable. The situation is not one in which I have in other proceedings (or in some extra-judicial utterance) expressed a view of the law which might be thought to indicate a predisposition towards a particular outcome in this case. Nor have I expressed some provisional view subject to possible modification. In either of those situations, the reasonable and fair-minded observer would recognise that an objectively based decision arrived at by reference to arguments yet to be advanced in the particular proceedings would be possible. In this case, I have, for one purpose, already canvassed in some detail and expressed firm opinions about an issue between the particular parties in relation to the particular circumstances that will be one of two central issues integral to the determination of the s.208L appeal. I have done so in the course of performing the task I had to perform in relation to the s.208M application for leave. 34 The cases make it clear that judges must not accede too readily to suggestions of some apprehension of bias, given their duty to hear and determine the cases that come before them and not to encourage any party to think that the party can, by assertions of such apprehension, displace the particular judge and have the case heard by another who may be more likely to see things the way the party prefers. But even bearing that principle clearly in mind, I consider that, in the particular circumstances of this case, the reasonable and fair-minded observer aware of what transpired in relation to the s.184(4) issues at the earlier stage of the proceedings would in all likelihood be troubled by the notion that I was to hear and determine the s.208L appeal in which those issues are to be one of the two central matters in contention. There is, in the circumstances, room for an apprehension, upon assessment by the hypothetical observer, that I would not alter the views previously stated by me, as they were expressed in relation to these very parties and this very case. 35 For these reasons (and these reasons alone), it is appropriate that I disqualify myself from hearing the s.208L appeals in both these proceedings (that is, 13492/01 and 13494/01). I accordingly do so. Other matters 36 Mr Beazley who, as I have already said, appeared for the defendant noted at the conclusion of the hearing on 30 October that there are four matters outstanding in each of these proceedings, apart from the s.208L appeal itself. These are, first, the question of costs in relation to the application for leave to appeal the subject of my judgment of 15 August 2002, second, the question of costs in relation to the application to re-open determined by me on 4 October 2002, third, the order made by me on 10 September 2002 staying until further order the order dismissing the application for leave to appeal under s.208M and, fourth, the long-standing stay on the entry of the certificate of assessment and determination of costs. 37 My present thinking is that, in the light of my decisions on the disqualification issues raised by the first plaintiff, there is no reason why I should not, in the ordinary course of events, hear and determine such application as any party may choose to make in relation to any of those four matters.
Last Modified: 12/17/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Wentworth
Rogers
CITATION : Wentworth v Rogers [2002] NSWSC 1198 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 13494/01; 13492/01 HEARING DATE(S) : 30/10/02 JUDGMENT DATE : 16 December 2002
First Plaintiff in person COUNSEL : Ms V Culkoff - Second Plaintiff Mr P J Beazley, Solicitor - Defendant First Plaintiff in person SOLICITORS : Russo & Partners - Second Plaintiff Beazley Singleton - Defendant CATCHWORDS : PROCEDURE - courts and judges generally - apprehended bias - application that judge set aside judgment and orders because of failure to disclose matters alleged to ground reasonable apprehension of actual bias - application that judge disqualify himself from hearing particular future proceedings because judge's statements on fact and law in earlier proceedings alleged to ground reasonable apprehension of prejudgment LEGISLATION CITED : Legal Profession Act 1987 Legal Profession Regulation Australian National Industries Ltd v Spedley Securities Ltd (1992) 26 NSWLR 411 Brown v DML Resources Pty Ltd [2001] NSWSC 250 Re JRL; Ex parte CJL (1986) 161 CLR 342 Kartinyeri v Commonwealth (No 2) (1998) 72 ALJR 1334 Lawal v Northern Spirit Ltd [2002] EWCA Civ 327 CASES CITED : Locabil (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 Rogers v Wentworth (unreported, NSWCA, 9 October 1998) Wentworth v Rogers [2002] NSWSC 709 Wentworth v Rogers [2002] NSWSC 921 Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 Wentworth v Wentworth (unreported, NSWCA, 21 February 1996) Wentworth v Wentworth (unreported, NSWSC, 10 July 1997) DECISION : See paragraphs 27 and 35
[2000] SASC 450
(1992) 26 NSWLR 411
(1986) 161 CLR 342
(1998) 72 ALJR 1334
(1987) 8 NSWLR 388
(1990) 170 CLR 70
(1994) 181 CLR 41
(2002) 174 ALR 655
(1998) 13 NSWLR 502