Wintle v Stevedoring Industry Finance Committee and Ors [2002] VSC 39

Supreme Court of Victoria|2002-03-01|Before: Ashley J

BIAS - Apprehended bias - Judge previously counsel appearing against Defendants to present proceeding - Basis for disqualification not disclosed in the circumstances.

On 25 March certain issues in this litigation are fixed for hearing by me. They include applications by the plaintiff, Anne Wintle, for extension of time under both s. 23A of the Limitation of Actions Act 1958 and of the .

Counsel for the second and third defendants, James Hardie and Coy Pty Ltd ("Hardie") and CSR Ltd ("CSR"), have applied that I disqualify myself from hearing and determining these issues. They have done so on the ground of apprehended bias. Any suggestion of actual bias has been disavowed.

CSR's application that I disqualify myself, with which I shall first deal, was supported by the affidavit of Mr Philip Rowell, solicitor for CSR, sworn 1 February this year. That affidavit refers to two affidavits sworn in connection with the issues for hearing on 25 March - one, for the plaintiff, sworn on 3 August 2000 by Mr Peter Gordon, solicitor; and the other, sworn 1 September 2000, by Mr Rowell. I have carefully read, and re-read, all three affidavits.

Notwithstanding the apparent breadth of the grounds for disqualification set out in Mr Rowell's affidavit of 1 February, Mr Kaye of Queens Counsel who appeared with Mr Noonan for CSR advanced quite specific and limited contentions. He did not argue that, because I had appeared as counsel for a number of plaintiffs in asbestos litigation before my appointment in August 1990 - whether against CSR, its subsidiary, Midalco Pty Ltd (formerly Australian Blue Asbestos Ltd and conveniently called ABA), or any other defendant - I was disabled from sitting in asbestos litigation against his client. He rather submitted that it is necessary to look to the circumstances of the particular case before the court. Here, those circumstances dictated disqualification.[1]

In the present proceeding, Mr Kaye noted, one of the matters raised for the plaintiff in support of her applications is an allegation that over a period of years commencing in about 1974 CSR first conceived and then implemented a plan to discourage persons from thinking that they might have a good or viable claim against CSR in respect of asbestos-related disease. In this connection Mr Kaye referred me to paragraphs 26 - 29 of Mr Peter Gordon's affidavit sworn 3 August 2000. They read as follows:

"26) In or about 1974 and thereafter, notwithstanding its understanding that CSR may be liable for the exposure of people to asbestos at, or from Wittenoom, CSR conceived and implemented a plan designed to mislead and deceive persons who may desire to bring a claim for asbestos related disease caused by exposure to Wittenoom asbestos from understanding that they had a good and/or viable cause of action against CSR. 27) The elements of this plan by CSR were as follows: (a) CSR made a series of public representations that it had no involvement in the Wittenoom asbestos mine other than to be the parent company of the owner and operator of the mine, Australian Blue Asbestos Pty Ltd. It threatened defamation proceedings to persons who stated otherwise. (b) CSR stripped Australian Blue Asbestos (later known as Midalco) of its assets in order that claimants and their lawyers would form a view that a successful judgment against the subsidiary company was not worth pursuing. (c) One of the company's senior officers N.E. Irving is described as having summarised this strategy as follows: `even if they die like flies they'll never be able to pin anything on CSR'. 28) Now produced and shown to me and marked with the notations `PG25' are a series of documents which demonstrate the conception and implementation of this plan by CSR. Documents specifically relating to paragraph 26(a) above are temporarily unavailable and will be exhibited to supplementary Affidavit at a later time. 29) Despite the fact that CSR has repeatedly been found since 1988 liable in a relevant sense for control and for breach of appropriate common law duty in respect of operations at the Wittenoom mine, it did not until the Beruldsen case make an admission of relevant control and relevant breach of duty. Now produced and shown to me and marked with the notation `PG26' is a schedule of the names of cases in which CSR has denied a relevant control or breach of duty of care and findings against it have been made."

Mr Kaye then submitted that in the Western Australia cases of Heys and Barrow v CSR and Anor[2] an important issue had been whether CSR, as distinct from its subsidiary, ABA, could be made liable for asbestos disease suffered by workers at Wittenoom. Questions arose, he submitted, whether the corporate veil could be lifted, and whether CSR could itself be liable for breach of a common law duty of care. Those questions involved evidentiary dispute, for CSR denied its liability on any such footing. It was Mr Kaye's submission that CSR's alleged plan to deceive and mislead raises matters closely related to issues which arose in Heys and Barrow. That close relationship of issues bore upon reasonable apprehension of bias.

Mr Kaye further submitted that the allegations made in paragraphs 26-29 of Mr Peter Gordon's affidavit put in issue the conduct of CSR in proceedings which included those in which I was involved as counsel for plaintiffs.

Mr Kaye argued, again, that Heys and Barrow involved issues of contested fact and credibility. He contrasted the situation where a judge as barrister had appeared against a party on appeal, or had given general advice, citing R v Garrett[3] and Kartinyeri v The Commonwealth (No. 2)[4]. He did not argue that it was simply because questions of contested facts and credibility had earlier arisen that a reasonable apprehension of bias might arise; but rather because of the relationship between issues at those trials and issues for determination on 25 March. He contended that the determination of issues arising for consideration on 25 March will involve the discretionary weighing up of various factors, one factor being the alleged culpability of CSR in connection with the alleged plan.

Mr Kaye finally submitted that one of the witnesses in Heys and Barrow, Mr Keith Brown, had been the subject of severe criticism by me in a quote contained in Mr Ben Hills' book "Blue Murder".

Mr John Gordon of counsel, for the plaintiff, disputed Mr Kaye's submission that an issue which arose in Heys and Barrow and the issue raised by paragraphs 26 - 29 of Mr Peter Gordon's affidavit were closely related. Heys and Barrow, he argued, were conducted quite apart from the presently alleged plan. The question there, so far as CSR was concerned, was whether upon the evidence that had been adduced it could in fact be held liable to Wittenoom workers apart from any liability of its subsidiary, ABA. The resolution of evidentiary conflict upon that question was unrelated to the existence or otherwise of the plan now alleged.

Mr Gordon further submitted that the pertinent question for determination on 25 March will be whether it is just and reasonable to extend time; and that the key issue for consideration is likely to be the extent to which there is or is likely to be prejudice to the defendants having regard to the delay. In that connection CSR had proposed that it will be unable to cross-examine the late Mr Wintle concerning the identification of and exposure to its asbestos while working at the Port of Melbourne[5]. He argued that the question whether CSR devised and implemented a plan as deposed to by Mr Peter Gordon will be a peripheral issue.

Concerning Mr Keith Brown, Mr Gordon submitted that the comment which I made about him was made personally; and that in any event Mr Brown is not a deponent on the applications to be considered on 25 March.

Further concerning the facts, Mr John Gordon argued that CSR was seeking to have me disqualify myself on the basis, apart from the comment concerning Mr Brown, of three proceedings heard in 1987 and 1988, and two de bene esse examinations of plaintiffs in 1986 and 1990 respectively. He pointed out that whereas CSR now chose to describe the cases heard in 1987 and 1988 as test cases, that description had been ridiculed in the course of the trial of the second of them - that is, Heys and Barrow. He emphasised the antiquity of the cases upon which CSR relied, and the different issues there arising.

The test of apprehended bias is this: are the circumstances such that a party or a fair-minded and informed member of the public might entertain a reasonable apprehension that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the issues before him (or her)? See Livesey v New South Wales Bar Association[6]. The formulation in Livesey has been often cited. See, for example, Re Polites & Anor; ex parte the Hoyts Corporation Pty Limited & Others[7]. See also Ebner v Official Trustee in Bankruptcy[8]. Sometimes the test has been framed as an enquiry whether a reasonable bystander "would" reasonably entertain an apprehension of bias: see, eg, Laws v Australian Broadcasting Tribunal[9]; see also Re JRL; ex parte CJL[10]. In this State, at least, the Livesey formulation stands: Gascor v Ellicott[11]. Ebner[12] makes it clear that "the question is one of possibility (real and not remote), not probability".

Although the classic formulation of apprehended bias refers to "the parties or the public", Deane J pointed out in Webb[13] that "the test is an objective one and the standard to be observed in its application is that of a hypothetical, fair-minded and informed lay observer. That being so, it is convenient to frame the test itself in terms of reasonable apprehension on the part of that particular inhabitant of the common law". Only one enquiry is necessary. It is framed by reference to the hypothetical observer. An enquiry framed by reference to a party could yield no different result.

The reasonable apprehension, of course must be of a partial or prejudiced decision, not of a decision adverse to the party which seeks the judge's disqualification.

The question of apprehension of bias has been addressed in the context of judges who have previously acted for or against a party to litigation, whether as counsel[14] or as solicitor[15]; and as well a case in which advice was given concerning legislation which then fell for judicial construction[16].

Those cases show that the general test of reasonable apprehension of bias applies. They emphasise the need to identify the issue to be judicially decided and the detail of the judge's prior connection with a party to, or the subject matter of, litigation. They emphasise also that, whilst justice must be seen to be done, this requiring that a judge withdraw if there is reasonable apprehension of bias, at the same time a judge has a significant duty to hear any case in which there is no proper reason to disqualify himself.

The submissions made by Mr Kaye have not persuaded me that I should disqualify myself. Acceptance of his submissions would be the easy way out; but not the right way. I consider that the following matters are pertinent:

First, I have no doubt that Mr John Gordon was correct in his submission that the issues concerning the interrelationship between CSR and its subsidiary which arose in Heys and Barrow were very different to those which are raised by Mr Peter Gordon in connection with CSR's alleged plan to deceive and mislead. The essence of the present allegation is that CSR, notwithstanding that it knew that it may be liable to persons suffering asbestos injury arising out of operation of the Wittenoom mine, conceived and implemented a plan designed to mislead and deceive prospective plaintiffs from understanding that they might have a good and/or viable cause of action against it. In Heys v Barrow, to the contrary, the plaintiffs did bring proceedings against CSR as well as ABA. The question was whether in the circumstances revealed by the evidence and in accordance with legal principle CSR was liable to the plaintiffs. The matter appears clearly from the judgment of Rowland J, pertinent parts of which I have re-read for the first time in many years. I should refer to a few passages.

His Honour, generally describing the claim raised against CSR, said this at the outset:

"...but in the end it is said to be a claim based in negligence, the duty being owed firstly because of the proximity in the relationship between the plaintiffs and CSR based on allegations of the control exercised by CSR over ABA's affairs as they affected each plaintiff and, secondly, because the relationship between CSR and ABA was such, it is said, as would enable me to `lift the corporate veil' so as to find that the actions of ABA were the actions of CSR."[17]

CSR denied the existence of any duty and any basis for its existence.[18]

His Honour dealt extensively with the way in which the claim was put against CSR and the evidence led in that connection under the heading "Relationship between CSR and ABA"[19]. The pertinent findings which his Honour made are at judgment pp. 206-210. In that section of his judgment Rowland J outlined the bases of claim as follows:

"Primarily [the plaintiffs] say that CSR owed a duty to each plaintiff by reason of its proximity to each."[20]

"As an alternative approach counsel for ABA (sic) then submits that this is a case for lifting the corporate veil."[21]

"Now, whether one defines all of the above in terms of agency, and in my view it is, or control, or whether one says that there was a proximity between CSR and the employees of ABA, or whether one talks in terms of lifting the corporate veil, the effect is, in my respectful submission, the same. There was `the necessary degree of proximity of relationship' between each plaintiff and CSR to give rise to a duty of care on the part of CSR to take reasonable care for the safety of each plaintiff commensurate with and identical to the duty owed by ABA. And it failed to exercise such care. For the reasons I have previously outlined, the knowledge, actions and responsibilities of the directors of ABA are also those of CSR."[22]

Turning now to the matter to be considered on 25 March, examination of Mr Peter Gordon's affidavit and the first of Mr Rowell's affidavits makes very clear the nature of the dispute which will need to be resolved. Mr Peter Gordon's affidavit proposes the development and implementation of a plan. Paragraph 28 alleges that the plan is demonstrated by certain documents. Mr Rowell's affidavit denies that there was any plan as is alleged. Mr Rowell details the history of CSR's involvement in asbestos litigation in this State and elsewhere in order to make his proposition good.[23]

Counsel told me that, with the possible exception of the plaintiff, no deponent - in particular, neither of Mr Peter Gordon or Mr Rowell - has been called for cross-examination. It is apparent that determination whether a plan to deceive and mislead was conceived and implemented by CSR will turn upon consideration of documents identified and relied upon by Mr Peter Gordon; and of the circumstances set out in Mr Rowell's affidavit.

It could not sensibly be said, and Mr Kaye did not suggest, that in this particular case the reasonable, fair-minded and informed member of the public would not have some general understanding of what the pertinent issues in Heys and Barrow had been; and as to what issue is raised by Mr Peter Gordon's affidavit at paragraphs 26-29, responded to by Mr Rowell's first affidavit. After all, counsel for CSR argued that the reasonable bystander might reasonably apprehend that I might not bring an unprejudiced mind to the resolution of the issues for consideration on 25 March in substantial reliance upon there being, and there being reasonably perceived to be, a close inter-relationship between those issues and the pertinent issues in Heys and Barrow.

Second, I do not accept that the plan alleged by Mr Gordon puts in issue the conduct of CSR in proceedings including those in which I was involved as counsel. More to the point, I do not consider that the fair-minded observer might consider the matter in such a way. The elements of the alleged plan are set out in paragraph 27 of Mr Gordon's affidavit. Those elements stand apart from the situation in Heys and Barrow, where former Wittenoom workers in fact sued CSR. Neither the plaintiffs' case nor CSR's defence was concerned with public representations or asset stripping.

Third, I consider that Mr John Gordon's submission concerning Mr Brown was correct; and that this would be the perception of a fair-minded and reasonably informed member of the public. That hypothetical person should be taken to have read Mr Hills' book, not simply the two sentences quoted by Mr Rowell at paragraph 12 of his affidavit of 1 February 2002. Having read the book, not line by line but in the broad, the reader would understand that its standpoint was set out in its title, that is, "Blue Murder". He would understand that what happened at Wittenoom was, from the author's standpoint, a situation where CSR and ABA very unnecessarily exposed workers to risk of severe industrial injury. He would also understand that a number of persons gave evidence for the defendants in Heys v Barrow, of whom Mr Brown was but one. It would be apparent that my criticism was of one witness, and that at a personal level.

Further concerning Mr Brown, the bystander would note that Mr Brown is not a deponent in respect of the issues which are to be considered on 25 March; and he would be aware also of the fact, confirmed by Mr Kaye, that Mr Brown is not the author of any of the correspondence referred to in paragraph 28 of Mr Peter Gordon's affidavit.

Fourth, resolution of the matters raised by Mr Peter Gordon's affidavit and responded to by Mr Rowell's affidavit will involve a fact finding exercise, albeit not at trial but within the confines of applications to extend time. Having account of the nature of the dispute, which I have already outlined, I think it very improbable that the hypothetical bystander might think that I might not bring an unprejudiced mind to its resolution because long ago, at trial, I had been a barrister in which other disputes of fact and questions of credibility had arisen.

Fifth, I accept Mr John Gordon's submission that the question of prejudice to CSR by reason of delay may well loom large on the applications to be heard on 25 March. Nonetheless, it is for the court to be satisfied, subject to sub-s. (3) of s. 23A and s. 20 respectively, that it is just and reasonable to extend time. By sub-s. (3) the court is directed to have regard to six matters. Paragraph (a), and possibly paragraph (c) could make relevant a course of action by a company designed to deflect a prospective plaintiff from believing that he or she had a good or viable cause of action against it. Paragraphs 26-29 of Mr Peter Gordon's affidavit, and Mr Rowell's response, do pertain to a matter which the court must address. I cannot presently say that such matter will be peripheral; and I do not reject CSR's application on that footing.

I mentioned earlier that Hardie joined in the application that I should disqualify myself. In an affidavit sworn 21 February 2002 - that is, the day fixed for the hearing of CSR's application - Hardie's solicitor, Maryjane Crabtree, deposes that in 1986 I appeared for a plaintiff in proceedings against Hardie for asbestos related disease. By reference to a letter of costs exhibited to the affidavit it is made to appear that I settled the statement of claim and an affidavit in the proceeding and that I conferred with and adduced evidence from the plaintiff - as I understand it, on a de bene esse examination. Ms Crabtree further deposes that in May 1990 I appeared for a plaintiff claiming to suffer from asbestos disease in consequence of work on the Melbourne waterfront, Hardie being one of three defendants; and, incidentally, CSR being another. In this instance it is clear, because the transcript is exhibited to the affidavit, that my involvement was to adduce evidence on a de bene esse examination. I note, pertinently for present purposes, that the transcript shows that the late Mr McKenzie gave evidence that he was exposed to asbestos dust, both blue and other, over the four years of his employment on the Melbourne waterfront; and that he could identify some bags of asbestos by the CSR logo on them. I think that he made no reference at all to Hardie. Each of the two proceedings, according to Ms Crabtree's affidavit, was settled sometime after I had taken the examinations de bene esse. Nothing suggests that I had any hand in either settlement.

Mr Batt of counsel for Hardie adopted the submissions made by Mr Kaye. He sought to adapt them to his client's case by referring to paragraphs 7, 8 and 31 of Mr Peter Gordon's affidavit sworn 3 August 2000. By paragraphs 7 and 8 Mr Gordon ventures his opinion concerning Hardie's role as an importer of asbestos though the Port of Melbourne during the period that the late Mr Wintle was employed there; and his opinion concerning Hardie's knowledge at a relevant time of the risk that waterside workers such as Mr Wintle might suffer asbestos disease in consequence of their exposure to asbestos-containing dust. Paragraph 31 asserts that the plaintiff and the late Mr Wintle were at material times unaware of Hardie's alleged acts or omissions.

Mr Batt referred also to paragraph 16 of an affidavit sworn by Mr Peter Gordon on 16 November 2000, and in particular to a statement that Hardie had adopted over a long period conduct which had the effect of concealing information relevant to causes of action which asbestos victims may have had against it. He accepted that this was a statement different "to a degree" from that made concerning CSR in paragraphs 26-29 of the affidavit of 3 August 2000.

In my opinion, viewed from the perspective of the hypothetical bystander, the case for apprehended bias advanced by Hardie was not at all persuasive. The only involvement I was shown to have had in Hardie litigation was a long time ago, and only in the precursors to trials which never took place. In the one transcript which was put into evidence there was no reference at all to Hardie in my examination of the plaintiff. It is noteworthy also that CSR was a party in the case which involved the Melbourne waterfront. Yet Mr Kaye did not argue that my appearance in that matter provided a basis for reasonable apprehension of bias.

The highest that the matter could possibly be put is that by reason of my transient involvement in litigation many years ago I might be taken by the reasonable bystander to have formed some view about the opinions expressed in paragraphs 7 and 8 of Mr Peter Gordon's affidavit of 3 August 2000. But it seems to me, with respect, that a fair-minded and reasonably informed observer would dismiss such an hypothesis. In any event, whether the plaintiff makes out the matters there alleged on 25 March will depend - assuming that they are in controversy - upon the material adduced to support and controvert them.[24]

I think it desirable, before ending, that I place on record a few matters which were not raised by counsel for either CSR or Hardie as bearing upon apprehension of bias. First, I was instructed by Slater & Gordon in the various proceedings to which counsel for CSR and Hardie referred in their submissions. That was undoubtedly known to the legal advisers of CSR and Hardie. Second, I have known Mr Peter Gordon for many years, professionally and socially. I regard him as a friend. At least the first element of our acquaintance would have been known to the legal advisers of CSR and Hardie. Third, the fact that I was in the past briefed by Slater & Gordon not only in asbestos litigation but in other matters, and that I have known Mr Peter Gordon for many years, has not stopped me initiating the making of costs orders disadvantageous to Slater & Gordon on at least several occasions since my appointment; and did not stop me on another occasion from raising an issue which led to suit against Slater & Gordon. Fourth, I have known Mr Rowell over many years; essentially as a solicitor appearing for opposing parties whilst I was at the Bar, and since then as an instructing solicitor in matters coming before me. We have spoken from time to time. I have no reason to regard him as other than an honourable member of the profession.

I have considered whether the additional matters to which I have referred, some at least of which must have been known to the legal advisers of CSR and Hardie, provide reason why I should disqualify myself from hearing the applications on 25 March. I have concluded that no such reason is thereby disclosed.

I reject the application made by counsel for CSR and Hardie that I disqualify myself.

[1] In a memorandum, agreed upon by the plaintiff's solicitors, Mr Rowell indicated that he was unaware of CSR having made any previous application for a judge to disqualify himself or herself in an asbestos related disease case 'involving it or Midalco Pty Ltd.' I readily accept that such is the position. But the opportunities for raising objection must have been few, if any. The present Commonwealth Attorney-General appeared with me as leading counsel for the plaintiffs in Heys and Barrow. Before leaving the Bar he may have acted for a short time as a Commissioner in the Supreme Court of Western Australia. But according to the memorandum it is believed that he did not preside over any pertinent litigation involving CSR or ABA. Again according to the memorandum, it is believed that Judge Macknay of the Western Australian District Court, who was one of the junior counsel for the plaintiffs in Heys v Barrow, has had no asbestos-related disease case involving CSR or ABA come before him. Finally, the present Chief Justice of the Supreme Court of Western Australia was counsel in Heys v Barrow. But he was senior counsel for CSR. I neither know nor was told of any other former barrister, now judge, who acted for plaintiffs against CSR or ABA in cases of asbestos-related disease.

[2] Nos 1161 and 1148 of 1987, the subject of judgment delivered 4 August 1988 by Rowland J.

[3] (1988) 50 SASR 392, particularly at 399-400.

[4] (1998) 72 ALJR 1334, particularly at paragraphs [24] to [27] and [38].

[5] See paragraph 31 of Mr Rowell's affidavit sworn 1 September 2000.

[7] [1991] HCA 25; (1991) 173 CLR 78 at 85 per Brennan, Gaudron and McHugh JJ, and Webb v R [1994] HCA 30; (1994) 181 CLR 41 at 67-68 per Deane J.

[9] [1990] HCA 31; (1990) 170 CLR 70 at 99-100 per Gaudron and McHugh JJ, Carruthers at 356, 371

[14] S & M Motor Repairs Pty Ltd and Ors v Caltex Oil (Australia) Pty Ltd and Anor (1988) 12 NSWLR 358; R v Garrett, supra; Western Australia v Watson [1990] WAR 248 at 261-265.

[24] In the plaintiff's case, at least the appendix of references which is exhibit PG5 to Mr Peter Gordon's affidavit.

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