Austbar Pty Ltd v ABA Australian Bar Association Limited
[2018] FCCA 876
•19 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUSTBAR PTY LTD v ABA AUSTRALIAN BAR ASSOCIATION LIMITED | [2018] FCCA 876 |
| Catchwords: PRACTICE AND PROCEDURE – Trade Marks – submission that only a Judge of the Court who was formerly a solicitor and not a barrister could hear and determine the proceeding – application for recusal and disqualification of current Judge on the basis of association, interest and conduct arising out of Judge’s former membership of the Australian Bar Association and its successor body and his current membership of the New South Wales Bar Association and orders made in the absence of a party – application for recusal and disqualification dismissed on the basis that Judge was not a member of the Respondent and mere membership of the New South Wales Bar Association or a similar professional body no grounds for disqualification – a fair-minded lay observer would not reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the proceeding – application for disqualification dismissed. |
| Legislation: Federal Circuit Court Act 1999 (Cth), s.17A |
| Cases cited: Cristovao v Tan & Tan Lawyers Pty Ltd (No. 3) [2018] FCA 20 Everest v General Council of the Bar [2000] Lexis Citation 2305 Ex parte Richards (1955) 55 S.R. (NSW) 411 Falcke v Scottish Imperial Insurance Co. (1886) 34 Ch D 234 |
| Applicant: | AUSTBAR PTY LTD |
| Respondent: | ABA AUSTRALIAN BAR ASSOCIATION LIMITED |
| File Number: | SYG 1363 of 2017 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 1 December 2017 |
| Date of Last Submission: | 2 December 2017 |
| Delivered at: | Sydney |
| Delivered on: | 19 April 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Minus of Counsel |
| Solicitor for the Respondent: | Mr W. Covell |
| Solicitors for the Respondent: | Worthy of the Name |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application in a Case filed by the Applicant on 17 November 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1363 of 2017
| AUSTBAR PTY LTD |
Applicant
And
| ABA AUSTRALIAN BAR ASSOCIATION LIMITED |
Respondent
REASONS FOR JUDGMENT
Introduction
On 4 May 2017 Austbar Pty Ltd (the Applicant) filed a Notice of Appeal from the decision of the Registrar of Trade Marks dated 6 April 2017 which decided that the Respondent was, against the opposition of the Applicant, entitled to have registered the trade marks “AUSTBAR” and “AUST BAR”.
It is common ground that the Respondent is a company limited by guarantee which was incorporated on 20 May 2015 for the purpose of assuming the role and function of the unincorporated body which came into existence in January 1963 known as “the Australian Bar Association” (ABA).
In its response filed on 23 June 2017 the Respondent contends that the Applicant’s appeal to this Court is “futile and prohibited” by reason of the decision of Greenwood J in the Federal Court of Australia in Selth v Australasian Barristers’ Chambers Pty Ltd (No 3) [2017] FCA 649 (Selth).
By Application in a Case filed on 17 November 2017 the Applicant sought the following orders:
1. That the Orders made by Judge Dowdy on 15 September 2017 and subsequently on 10 October 2017 to be set aside pursuant to Rule 16.05 of the Federal [Circuit] Court Rules 2001.
2. That Judge Dowdy recuse himself from hearing this matter and that the file be handed to another judge of the Federal Circuit Court who has not been a member of the Australian Bar Association.
In summary, the Applicant seeks that I disqualify and recuse myself as Judge in this matter on the basis of apprehension of bias on the following grounds, considered either separately or cumulatively:
a)that I made orders in open Court in the absence of representation for the Applicant on 15 September 2017;
b)that I made orders in Chambers on 10 October 2017;
c)on my “association” with the Respondent and the ABA through my membership of the New South Wales Bar Association (NSW Bar Association); and
d)that only a Judge of the Federal Circuit Court who has been a solicitor and not a barrister can hear and determine the present proceeding.
Relevant Background
Orders of Court of 15 September 2017 and 10 October 2017
This proceeding was docketed to me in the usual way by the Registry of the Court. The first return date was 2 June 2017 when Mr Hazan appeared as solicitor for the Applicant and Mr Covell appeared for the Respondent. Procedural consent orders were entered into, including an order for the parties to attend a mediation before a Registrar of the Court, and the proceeding was stood over to 15 September 2017 before me for further directions or to appoint a date for hearing.
On 10 August 2017 Mr Hazan filed a Notice of Withdrawal as Lawyer for the Applicant which attached his Notice of Intention to Withdraw as Lawyer and which advised the Applicant that this proceeding was next listed before the Court at 9:30am on 15 September 2017 for directions or to obtain a hearing date.
As it transpired the Registry advised the parties and my Chambers on 29 August 2017 that the proposed mediation would take place at 10:15am on 12 October 2017 in the Law Courts Building in Queen’s Square.
In light of this communication there seemed to be no particular point to maintaining the hearing scheduled for 15 September 2017 and so the following email was sent to the parties by my Deputy Associate on 13 September 2017:
Dear Parties,
In light of the fact that there is to be a mediation in this matter on 12 October 2017 may I assume that this proceeding can be taken out of his Honour’s directions list this coming Friday, 15 September 2017 at 9.30am and given a new directions hearing date post October 12 2017.
Kind regards
Mr Covell for the Respondent immediately communicated by email that his client did not wish for the matter to be removed from its listing on 15 September 2017 because, since the matter had been last in Court on 2 June 2017, Justice Greenwood had handed down his decision in Selth on 8 June 2017 and therefore the appeal in this Court was res judicata and subject to issue estoppel. Immediately after receipt of this email from Mr Covell my Deputy Associate advised the parties that as one party wished for the matter to remain in the list on 15 September 2017 it would remain in the list and that the parties should appear.
Then at 6:45pm on 13 September 2017 Mr Minus sent the following email to my Chambers:
Dear Associate,
I am currently in Melbourne. I was not personally aware that this matter was in the directions list for this Friday.
I request that the matter be taken out of His Honour’s list as I am unable to be present. Please provide my apologies to His Honour.
As the matter is set down for mediation there is no need for Directions at this time but request that if there is, then the matter be rescheduled to another day (not Friday). I am the lecturer for the University of Sydney Law School Commercial Dispute Resolution Course for 4 hours from 10 AM each Friday in second semester.
Kind regards,
On the following day, 14 September 2017, at 2:00pm the following email was sent to Mr Minus by my Associate:
Dear Mr Minus,
This matter was stood over on 2 June 2017 to Friday 15 September 2017.
Mr Hazan appeared for the Applicant on that occasion. Whilst Mr Hazan is no longer the lawyer for the Applicant it appears he sent a Notice of Intention to Withdraw as Lawyer to the Applicant which in paragraph 5 expressly advised that the matter was next listed before the Court tomorrow morning at 9.30am.
Further, the Applicant is a corporation which needs to appear in Court by a lawyer unless the Court gives leave for an individual to appear on behalf of the relevant corporation.
In circumstances where the matter has been listed in the regular way and the Respondent wants the directions hearing tomorrow maintained, the proceeding will remain in the list and the Applicant should appear.
Regards,
At 3:16pm on 14 September 2017 Mr Minus sent the following email to my Associate:
Dear Associate,
I am in Melbourne today and will not be returning until late tonight (my flight has just been cancelled because of high winds) so I have not been able to brief anyone to appear.
I am a lecturer at the Sydney Law School tomorrow and will not be able to attend Court as I am hosting Judge Joe Harman of the Federal Circuit Court who is addressing my students.
I apologise to the Court form my inability to attend but request that this information be put before Judge Dowdy and the matter rescheduled for another date after the mediation (but not a Friday).
Kind regards,
(emphasis added)
On 15 September 2017 at 7:26am Mr Minus sent the following further email to my Chambers:
UPDATE
Dear Associate,
As I advised yesterday, my flight back to Sydney last night was cancelled due to high winds. I am in Melbourne trying to return to Sydney.
Qantas has now cancelled my flight at 7:30 AM today. I have been offered a 4:30 PM flight.
I am unsure when I will be returning to Sydney because of continuing disruption with flights.
Kind regards,
I maintained the directions hearing of 15 September 2017 when Mr Covell appeared for the Respondent and there was no appearance for the Applicant. The following orders were made:
THE COURT ORDERS THAT:
1. Any Application in a Case seeking summary dismissal to be filed by the Respondent is to be filed together with any affidavits in support by 22 September 2017.
2. The Applicant is to file any affidavit upon which it seeks to rely by 6 October 2017.
3. The Respondent is to file and serve written submissions in support of its Application in a Case by 13 October 2017.
4. The Applicant is to file and serve written submissions by 20 October 2017.
5. In the event that the Applicant wishes to vary orders 1 – 4 it communicate any sought variation to the Respondents and Judge Dowdy’s Chambers within 7 days.
6. The matter is stood over generally to appoint a hearing date.
(emphasis added)
The initiative for the making of order 5 came from myself in order to afford protection to the Applicant in the event that it considered there to be some problem with the procedural orders comprised in orders 1 to 4.
The orders made on 15 September 2017 were on that date placed on the ECF system by my Associate, but due to a system stamping error they were not published onto the Commonwealth Courts Portal.
On 28 September 2017 the Respondent filed an Application in a Case seeking that the appeal to this Court be summarily dismissed under s.17A of the Federal Circuit Court Act 1999 (Cth), or in the alternative security for costs.
Then on 9 October 2017 Mr Minus sent an email to my Associate in the following terms:
Dear Associate,
I attach a screen shot of the list of orders displayed on the court’s portal earlier today. Can you please advise the Judge of this failure.
How can I be required to comply with Orders that are not notified to me or published on the Courts electronic system.
I await your advice.
Kind regards,
In order to obviate any unfairness resulting from the failure of the orders of 15 September 2017 to immediately appear on the Commonwealth Courts Portal I made orders on 10 October 2017 in Chambers extending the times provided for in those orders, as recorded in the email sent from my Deputy Associate to Mr Minus and Mr Covell at 8:52am in the following terms:
Dear Parties,
In light of the Electronic Court File system failing, his Honour is minded to make the below orders in Chambers today, pursuant to order 5 of 15 September 2017, to alleviate any claimed prejudice to the Applicant that this may have caused:
1. The Applicant is to file any affidavit upon which it seeks to rely by 20 October 2017.
2. The Respondent is to file and serve written submissions in support of its Application in a Case by 27 October 2017.
3. The Applicant is to file and serve written submissions by 3 November 2017.
4. The matter is stood over generally to appoint a hearing date.
Kind regards,
Recusal Application Based on Apprehension of Bias
In summary, Mr Minus submits in support of the recusal application that I have had a long association and relationship with the NSW Bar Association, and through my membership of the NSW Bar Association with both the ABA and the Respondent. In these circumstances I considered that it was appropriate to make a statement at the commencement of the hearing of the recusal application, which disclosed to the parties relevant matters. My disclosure advised as follows:
a)I was an ordinary member of the NSW Bar Association as a practising barrister for over 37 years, from March 1978 until my appointment to this Court on 7 December 2015.
b)While an ordinary member, during the period from about 1998 to 2002 I was a member of Professional Conduct Committee #3 of the NSW Bar Association.
c)I had never had any monetary, pecuniary or proprietary interest in, or relationship with, the NSW Bar Association and I had never taken part in its governance or administration or been a member of its Bar Council.
d)Since my appointment as a Judge of this Court I have remained, and I am currently, a member of the NSW Bar Association in the category of “Judge, former barrister or otherwise now retired from practising”, paying a total annual subscription fee of $165.
e)I had never been aware until the day before the hearing of the recusal application that under the Constitutions of the ABA and of the Respondent there were provisions which purported to make me a member of each organisation between March 1978 and 7 December 2015. I note that at the hearing Mr Minus accepted my statement of my lack of awareness in this regard.
f)I had never regarded myself as a member of either the ABA or the Respondent and I had never had any dealings with either the ABA or the Respondent, nor had I ever attended any functions or conferences which either of those organisations might have arranged.
g)I am not to my knowledge a life member, an honorary member or any sort of member of the Respondent.
I first note that the position of the Respondent with respect to the recusal application appeared to be that it did not agree with the reasons proffered for the recusal application but it did not oppose the recusal application. Otherwise, no submissions were made on behalf of the Respondent.
I further note that the NSW Bar Association is not and has never been a party to the present proceeding.
The evidence led by Mr Minus established, and it became common ground, that:
a)clause 4(a) of the Constitution of the ABA at all material times up to 20 May 2015 provided that practising barristers who were members of the NSW Bar Association were ipso facto members of the ABA;
b)as and from 20 May 2015 clause 6 of the said Constitution established two categories of membership, namely constituent bodies and individual members;
c)as and from 20 May 2015 clause 7(b) of the said Constitution provided that the NSW Bar Association was a constituent body of the Respondent;
d)as and from 20 May 2015 clause 8 of the said Constitution provided three sub-categories of membership, being practising barristers, life members and honorary members and clause 9 provided that a practising barrister who was a member of the NSW Bar Association as a constituent body, was to be ipso facto an individual member of the ABA;
e)in the year 2015 – 2016 the NSW Bar Association paid to the Respondent, out of its consolidated revenue derived from the membership fee of $300 received from its ordinary members, an amount of $77 referable to each such membership fee of $300. I will assume for present purposes that the same general situation pertained vis a vis the ABA and the NSW Bar Association for all of the period that I was a member of the NSW Bar Association, proportionally for the amounts applicable from time to time during that period; and
f)upon my appointment to be a Judge of this Court on 7 December 2015 I ceased to be a member of the ABA.
As it is common ground, for the purposes of my determination of this recusal application I am prepared to accept the assumption and convention that I was a member of the ABA and then the Respondent from March 1978 until 7 December 2015. However, I should say that in reality I do not accept that in truth or in fact I was ever a member of either organisation. The rights and obligations of a member of a voluntary association are usually regarded as being based on consensus and contract. No evidence was led to the effect, nor was it suggested, that any Rule or the Constitution of the NSW Bar Association at any material time rendered or deemed me as a member of that organisation to be automatically and without any act or indication of any personal assent or agreement a member of either the ABA or the Respondent. I have not been able to find any legal authority which has a tendency to countenance the right and entitlement of a club, professional body or similar organisation to unilaterally co-opt individuals as members. Rather, just as it is a general legal principle that liabilities are not to be forced upon people behind their backs or benefits conferred upon them against their will (per Bowen LJ in Falcke v Scottish Imperial Insurance Co. (1886) 34 Ch D 234 at 248), so membership of such an organisation requires contractual relations or otherwise an individual’s personal manifestation of assent to his or her membership of the relevant body. The common law privileges personal and individual autonomy. As McHugh J said in Perre v Apand Pty Ltd (1999) 198 CLR 180 at 223 [114]:
[114] One of the central tenets of the common law is that a person is legally responsible for his or her choices. It is a corollary of that responsibility that a person is entitled to make those choices for him or her self without unjustifiable interference from others. In other words, the common law regards individuals as autonomous beings entitled to make, but responsible for, their own choices.
Submissions by the Applicant
At the hearing Mr Minus informed me that the basis of the recusal application was apprehension of bias and not actual bias. His fundamental submission was to the effect that a fair-minded observer in the circumstances might entertain a reasonable apprehension that I might be affected by bias or prejudgment. Prejudgment is in fact a form of bias and was described by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 as follows:
The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.
The test for apprehension of bias has been stated in Johnson v Johnson (2000) 201 CLR 488 at 492 [11] by Gleeson CJ, Gaudron McHugh, Gummow and Hayne JJ in the following terms to be:
[11]… It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) 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 (eg, Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v NSW Bar Association (1983) 151 CLR 288; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41).
The test for apprehension of bias is an objective test not requiring an assessment of the state of mind of the Judge, as is necessary on an enquiry about actual bias: Michael Wilson & Partners Ltd v Nicholls & Ors (2011) 244 CLR 427 (Michael Wilson & Partners) at 437 [32]. The test “requires the identification of what it is said might lead the Judge to decide a case other than on its legal and factual merits” and “secondly there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits”: Michael Wilson & Partners at 445 [63].
Mr Minus submits that I should disqualify myself on three grounds, namely:
a)association;
b)interest; and
c)conduct.
The nature of these grounds was described by Deane J in Webb v The Queen (1994) 181 CLR 41 at 74 in the following terms:
The area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories of case. The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first (e.g., a case where a dependent spouse or child has a direct pecuniary interest in the proceedings.) and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information…….
(emphasis added)
Association
Mr Minus submits that for my entire working life before my appointment as a Judge I had been a barrister and a member of the NSW Bar Association and the ABA and whilst Mr Minus accepts that I have not been a member of the Respondent since 7 December 2015, he points out that the NSW Bar Association, of which I remain a member, is a constituent member of the Respondent pursuant to clause 7 of the Respondent’s Constitution, as well as a voting member.
In these circumstances Mr Minus submits that my “association” with the Respondent is incompatible with the appearance of impartiality. Paragraph [18] of his Outline of Submissions filed on 16 November 2017 submitted as follows:
[18] Association with a party to the litigation is incompatible with the appearance of impartiality. It is not inconceivable that a fair-minded observer would consider that the value of that association, the friendships with members in the NSW Bar that have developed and the the [sic] continuation of that association into the future, might possibly divert a judge from deciding the case on its merits. A fair-minded lay observer might reasonably apprehend that a judge might not bring an impartial mind to the resolution of the case if the outcome of the case could affect the value of those relationships.
The Outline of Submissions concluded in this respect as follows:
[33]The Federal Circuit Court has many experienced Judges who were [formerly] solicitors and who have not been involved in such a lengthy and close close association with the Respondent and its associated member organisations.
[34]This matter should be reallocated to another Judge in the Federal Circuit Court.
Interest
Mr Minus submits that as a practising barrister for 37 years and a member of the NSW Bar Association during that period, and hence also a member of the ABA and the Respondent, that it would be presumed by the fair-minded observer that I would have an interest in supporting the actions of the Respondent in being successful in securing the intellectual property and trade marks which are to be dealt with in the substantive matter before this Court.
Conduct
In relation to this ground [22] – [23] of the Outline of Submissions of 16 November 2017 of Mr Minus were as follows:
[22]In these proceedings there have been two sessions at which His Honour has made orders in the absence of the Applicant; on 15 September 2017 and in chambers on 10 October 2017.
[23]On both occasions, His Honour’s actions could be reasonably interpreted by a fair-minded observer as displaying a different approach to the treatment of the parties. The applicant put before His Honour via his Associate evidence that he was unable to be present before the court for reasons outside of his control (the closing of runways in Sydney on 14 and 15 September because of high winds).
Consideration
In my view none of the grounds relied upon by Mr Minus are made out and I do not consider that I should recuse myself from hearing this case. I do not consider that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the case. Nothing identified or relied upon by Mr Minus founds any proper basis for a reasonable apprehension of prejudgment by me of the present proceeding.
The characteristics and attributes of the hypothetical fair-minded lay observer were conveniently summarized by Royal Commissioner Heydon QC in his Reasons dated 31 August 2015 during the course of the Trade Union Governance Royal Commission as follows at [40]:
[40] … the fair-minded observer does not make snap judgments: Johnson v Johnson (2000) 201 CLR 488 at 494 [14]. He or she is taken to be reasonable: Johnson v Johnson (2000) 201 CLR 488 at 493 [12]. He or she knows commonplace things and is neither complacent nor unduly sensitive or suspicious: Johnson v Johnson (2000) 201 CLR 488 at 509 [53]; Helow v Home Secretary [2008] 1 WLR 2416 at 2418 [2], 2421 [14], 2427 [39]. Knowledge of all the circumstances of the case must be attributed to the fair-minded observer: Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-4; Re JRL; ex parte CJL (1986) 161 CLR 342 at 355, 359, 368 and 371-2; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87-8 and 95….
….. Where the decision-maker is a judicial officer the fair-minded observer will have regard to the fact that a judicial officer’s training, tradition and oath or affirmation equip the officer with the ability to discard the irrelevant, the immaterial and the prejudicial: Johnson v Johnson (2000) 201 CLR 488 at 493 [12], citing Vakauta v Kelly (1988) 13 NSWLR 502 at 527, adopted in Vakauta v Kelly (1989) 167 CLR 568 at 584-5. Thus judges are expected to be equipped by training, experience and their oath or affirmation to decide factual contests solely on the material that is in evidence together with other material which is notorious or common knowledge….
…..Counsel Assisting pointed to the words of Lord Rodger of Earlsferry in Helow v Home Secretary [2008] 1 WLR 2416 at 2422 [23]:
Even lay people acting as jurors are expected to be able to put aside any prejudices they may have. Judges have the advantage of years of relevant training and experience.
To similar effect in Cristovao v Tan & Tan Lawyers Pty Ltd (No. 3) [2018] FCA 20 at [34] Kerr J stated:
[34]That, accepted, the hypothesised fair-minded lay observer does not make “snap judgments” (Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [14]); and is “neither complacent nor unduly sensitive or suspicious” (Johnson at [53]). Where the decision maker is a judicial officer the fair-minded lay observer (the reasonable observer) will have regard to the fact that a judge’s “training, tradition and oath or affirmation” of office can be expected to equip the officer with the ability “to discard the irrelevant, the immaterial and the prejudicial”: Johnson at [12]. The fair-minded lay observer must also be attributed to have knowledge of “all the circumstances” of the case: Livesey v New South Wales Bar Association[1983] HCA 17; (1983) 151 CLR 288 at 293-294. Although not taken to be a lawyer, the reasonable and fair-minded hypothetical person is to be taken to be informed about the core considerations relevant to his or her arriving at an apprehension that a judge might be biased.
As to association and interest, on no basis can it be said that I have been a member of the Respondent since 7 December 2015. I remain a member of the NSW Bar Association, but the fact that the NSW Bar Association is a constituent member of the Respondent cannot reasonably found in the mind of a fair-minded lay observer a reasonable apprehension that I may not bring an impartial or unprejudiced mind to the resolution of this proceeding. Whilst everything depends on the particular facts of the relevant case, mere membership by a Judge of an organisation or association which is a party to litigation before that Judge will not usually give rise to an apprehension of bias requiring the Judge to disqualify himself or herself from hearing the case. In this connection the English Court of Appeal stated in Locabail (UK) v Bayfield Properties [2000] QB 451 per Lord Bingham CJ, Lord Woolf MR and Sir Richard Scott VC at 480 [25]:
[25] It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided. We cannot, however, conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge. Nor, at any rate ordinarily, could an objection be soundly based on the judge's social or educational or service or employment background or history, nor that of any member of the judge's family; or previous political associations; or membership of social or sporting or charitable bodies; or Masonic associations; or previous judicial decisions; or extra-curricular utterances (whether in textbooks, lectures, speeches, articles, interviews, reports or responses to consultation papers); or previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him; or membership of the same Inn, circuit, local Law Society or chambers.
(emphasis added)
To similar effect is the statement of the Privy Council in Meerabux v Attorney General of Belize (2005) 2 AC 513 appearing below. In that case the Bar Association of Belize made a complaint that a former Justice of the Supreme Court of Belize was guilty of misbehaviour while in office. The Chairman of the Council which heard the complaint was a member of the Bar Association of Belize and objection was made to him sitting on and hearing the complaint. The Privy Council held that the Chairman was not disqualified and per Lord Hope of Craighead stated at 527 [24] as follows:
[24] The question is whether it can be said, simply because of his membership of the Bar Association, that Mr Arnold could be identified in some way with the prosecution of the complaints that the Association was presenting to the tribunal so that it could be said that he was in effect acting as a judge in his own cause. Only if that proposition could be made good could it be said, on this highly technical ground, that he was automatically disqualified. Their Lordships are not persuaded that the facts lead to this conclusion. Leaving the bare fact of his membership on one side, it is clear that Mr Arnold’s detachment from the cause that the Bar Association was seeking to promote was complete. He had taken no part in the decisions which had led to the making of the complaints, and he had no power to influence the decision either way as to whether or not they should be brought. In that situation his membership of the Bar Association was in reality of no consequence. It did not connect him in any substantial or meaningful way with the issues that the tribunal had to decide. As Professor David Feldman has observed, the normal approach to automatic disqualification is that mere membership of an association by which proceedings are brought does not disqualify, but active involvement in the institution of the particular proceedings does: English Public Law (2004), para 1576, citing Leeson v Council of Medical Education and Registration (1889) 43 Ch D 366 where mere membership of the Medical Defence Union was held not to be sufficient to disqualify and Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 where mere ex officio membership of the committee of the Medical Defence Union too was held to be insufficient. The same contrast between active involvement in the affairs of an association and mere membership is drawn by Shetreet, Judges on Trial (1976), p 310. Their Lordships are of the opinion that the principle of automatic disqualification does not apply in this case.
In Helow v Secretary of State for the Home Department [2008] 1 WLR 2416 the House of Lords unanimously considered that a Judge who was a member (and indeed a “high-profile” member of her local branch) of the International Association of Jewish Lawyers and Jurists was not bound to disqualify herself from considering, by way of judicial review, an asylum application by an activist Palestinian. It was held that a fair-minded and informed observer would not regard the Judge as biased by reason of her membership of the Association and that membership of an association did not necessarily connote approval or the sharing of the views expressed in its publications.
In Everest v General Council of the Bar [2000] Lexis Citation 2305 the English Court of Appeal found that the fact that a Judge had been a member of the Bar Council for a four-year term, twenty five years ago, did not preclude him from determining an application in a proceeding to which the General Council of the Bar was a party, and the other party a barrister. Robert Walker J, speaking for the Court, said at [23]:
[23]The General Council of the Bar is a party to the litigation but the Lord Justice never had any pecuniary or proprietary interest in its affairs and he has had no part in its governance for over twenty-five years.
In my view these English authorities are consistent with the statement of the Full Court of the Supreme Court of New South Wales per Street CJ, Roper CJ in Eq and Herron J in Ex parte Richards (1955) 55 S.R. (NSW) 411 at 421 – 422, as follows:
…we take the view that mere membership alone of a body will not usually be interpreted as carrying the inference that an act of the body through its executive will be sufficient to stamp an individual subscriber as an active participant in the action taken so as to render him a person liable to be held not free from bias….
(at 421)
We regard the decision in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 as confirming generally the view that mere membership of a union or body of persons who join together because of some common interest in a profession or calling is not sufficient by itself to affect the individual with responsibility for all acts of an executive or committee of management acting on its own initiative and, in particular, to cause such an individual to be regarded as plaintiff or prosecutor where the proceedings follow by direction of the committee.
(at 422)
Accordingly I do not consider that the circumstances of my association with the NSW Bar Association or the ABA and the Respondent as set out above could give rise to a reasonable apprehension of bias.
That leaves the issue of apprehension of bias by reason of my conduct in making orders in the absence of the Applicant in open Court on 15 September 2017 and from Chambers on 10 October 2017.
Orders of 15 September 2017
At the hearing Mr Minus agreed that Mr Hazan had ceased to act as solicitor for the Applicant at least a month before the directions hearing which had been set for 15 September 2017 and had also advised him at that time in the Notice of Intention to Withdraw as Lawyer that the next hearing date in this Court was 15 September 2017.
I consider that it was Mr Minus’ obligation to ensure that the Applicant was represented in Court on 15 September 2017 unless that hearing was vacated. In light of the fact that the proposed mediation was not scheduled to take place before 15 September 2017 I was initially prepared to vacate the hearing date. However, Mr Covell on behalf of the Respondent rejected that course and in light of his request that the hearing date be maintained I considered it appropriate to do so. The parties were advised that it would be maintained by email from my Chambers at 4:19pm on 13 September 2017: see [10] above.
Then at 6:45pm on 13 September 2017 Mr Minus asserted by email that he had not been personally aware that the matter had been placed in the directions list for 15 September 2017 and that he was unable to be present and asked for it to be taken out of the list: see [11] above. I was not prepared in the circumstances to accede to that request and my Associate so advised Mr Minus by email of 14 September 2017 at 2:00pm: see [12] above. Then, and significantly, by his email of 14 September 2017 at 3:16pm Mr Minus made it unequivocally clear that he had not been able to brief anyone to appear because he was in Melbourne and would not be returning until late that night and that he would not attend Court because he was hosting a function at which another Judge of this Court was addressing his students. I did not consider that anything in that email required the hearing of 15 September 2017 to be vacated in light of Mr Covell’s request that it be maintained.
Early on the morning of 15 September 2017 at 7:26am Mr Minus sent a further email advising that his flight back to Sydney had been cancelled due to the well known high winds in Melbourne. He asserts in his Outline of Submissions that this email evidenced to me that he was unable to be present in Court on 15 September 2017 “for reasons outside of his control(the closing of runways in Sydney on 14 and 15 September 2017 because of high winds”. However, I do not consider that such is a fair construction of the position. Mr Minus had made quite clear in his penultimate email of 14 September 2017 that if he were in Sydney he would not be attending Court because he was hosting another Judge of this Court addressing his students. That was an inadequate reason in the circumstances for him not attending Court and informed me that whether or not he was able to return to Sydney on or before the morning of 15 September 2017 he would not be at Court.
Accordingly the directions hearing on 15 September 2017 proceeded in the absence of Mr Minus and the orders reproduced at [15] above were made. However, conscious of the position in which Mr Minus had put himself I sought to protect the Applicant’s position by order 5 which granted him leave to seek to vary the procedural orders within 7 days if he wished to do so.
In my view, none of these events could give rise to a reasonable apprehension by a fair-minded lay observer that I might not be able to bring an impartial and unprejudiced mind to the determination of the proceeding.
Orders of 10 October 2017
The same reasoning applies to the orders made by me in Chambers on 10 October 2017, which were made in favour of the Applicant (without reference to either party) with a view to extending time for the Applicant to comply with the procedural orders made on 15 September 2017 because by system error they had not been immediately available to Mr Minus on the Commonwealth Courts Portal.
Disposition
I do not consider that the Applicant has made good its application that I disqualify myself and the Application in a Case filed on 17 November 2017 will be dismissed.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 19 April 2018
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