Bail & Bail v Gibbons

[1992] QCA 431

IN THE COURT OF APPEAL

[1992] QCA 431

QUEENSLAND

C.A. No. 150 of 1992

BETWEEN:

GARNETT ERNEST VICTOR BAIL First

(First Plaintiff) Respondent

- and -

HADIJAH BEE BAIL Second

(Second Plaintiff) Respondent

- and -

CLARENCE GIBBONS Appellant

(First Defendant)

- and -

WASTERID PTY. LTD.

(Second Defendant)

REASONS FOR JUDGMENT OF THE COURT

Delivered the eleventh day of December, 1992

This is an appeal from a judgment given in the District Court at Southport in favour of the respondents, the plaintiffs in the action. The hearing commenced on 27 April and terminated on 8 May, 1992. The judgment, which was reserved at the conclusion of the hearing, was delivered on 23 June 1992, and was adverse to the appellant, whose credibility was an important issue in the case.

The District Court judge who heard this action heard another action in the District Court at Toowoomba on 12 June, ie., during the period between the conclusion of the hearing and the delivery of judgment in this action. The Toowoomba action had not been completed when judgment was delivered in this action on 23 June.

During the course of the Toowoomba action, evidence adverse to the credibility of the appellant was given although he was neither a party to, nor a witness in, that action, and was not present to hear what was said.

Further, in the course of the Toowoomba action, evidence was given which conflicted with evidence of the appellant in this action.

Patently, the two actions had become unsatisfactorily intertwined. The District Court Judge who tried both actions recognised the difficulties in both a statement which he made in the course of the Toowoomba trial and a statement which he made when he subsequently delivered his reasons for judgment in this action. On the latter occasion, his Honour said:

"There is something which I wish to add in relation to this matter. I think it is appropriate that it be placed on record. In a trial which came before me in Toowoomba on 18 [sic.] June last, I heard evidence which included serious allegations about the conduct of Mr Gibbons, the defendant in the present case, in matters completely unrelated to the present one. Mr Gibbons was not a party to those proceedings nor was he a witness.

... .

My judgment in the present case was written prior to my
embarking on that trial and no alterations have been
made to the judgment since I embarked on the Toowoomba
trial.
I would also indicate that as my decision in the
present case was reserved, had I known the nature of
the evidence which was subsequently adduced in the
Toowoomba matter I would not have embarked upon the
hearing of that matter. Although one of the counsel
involved in the Toowoomba trial appeared in the present
trial I was not aware of the potential problem until
after the Toowoomba trial had commenced and
consequently I decided to continue to hear that trial
which, as I say, is part heard. I think those are
matters which should be placed on the record."

The appellant now seeks to have the judgment in this action set aside on the basis of ostensible bias.

Alternatively, it was submitted that the trial judge deprived himself of further opportunity to give mature reconsideration to his judgment in this action once he had heard the evidence in the Toowoomba action on 12 June. This extra point is without additional substance in the absence of any suggestion that the judge contemplated reconsidering his judgment in this action, a course apparently

inconsistent with the tenor of his Honour's remarks when he
delivered judgment in this action.

Complaint was also made of the order for costs in this action which was adverse to the appellant, whose submission was that had the trial judge "brought a mind free of extraneous considerations to bear on that issue a significantly different result may have been achieved." However, this complaint again adds nothing to the appellant's basic contention, in the absence of any suggestion that the costs orders in this action had not been prepared along with the remainder of the judgment prior to 12 June. Besides the orders for costs follow the events, which is exactly what should be expected.

Stripped to its essentials, this is a case in which, publicly and inadvertently, information adverse to the appellant came to the attention of the trial judge after he had reserved his decision but before he had delivered the judgment.

The fundamental principle is not in doubt. A judge should not determine 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 its resolution: R. v. Watson Ex parte Armstrong (1976) 136 CLR 248; Re Judge Leckie; Ex parte Felman (1977) 52 ALJR 155; Livesey v. The New South Wales Bar Association (1983) 151 CLR 288.

In Re JRL; Ex parte CJL. (1986) 161 CLR 342, Mason J

said at p.350:

"A central element in the system of justice administered by our courts is that it should be fair and this means that it must be open, impartial and even handed. It is for this reason that one of the cardinal principles of the law is that a judge tries the case before him on the evidence and arguments presented to him in open court by the parties or their legal representatives and by reference to those matters alone, unless Parliament otherwise provides. It would be inconsistent with basic notions of fairness that a judge should take into account, or even receive, secret or private representations on behalf of a party or from a stranger with reference to a case which he has to decide."

In the instant case, there is no suggestion that the trial judge received any "secret or private representations", but Mason J.'s statements apply equally to impermissible material received in other circumstances.

At p.351, his Honour continued:

"... the receipt by a judge of a private communication seeking to influence the outcome of litigation before him places the integrity of the judicial process at risk. A failure to disclose that communication will seriously compromise the integrity of that process. On the other hand, although the terms of a subsequent disclosure by the judge of the communication and a statement of its effect in some, perhaps many, situations will be sufficient to dispel any reasonable apprehension that he might be influenced improperly in some way or other, subsequent disclosure will not always have this result. The circumstances of each case are all important. They will include the nature of the communication, the situation in which it took place, its relationship to the issues for determination and the nature of the disclosure made by the judge."

In Livesey, the court in a joint judgment said at

p.299:

"What is in issue in the present case is the appearance and not the actuality of bias ... . The reasonable observer is to be presumed to approach the matter on the basis that ordinarily a judge will so act as to ensure both the appearance and the substance of fairness and impartiality. But the reasonable observer is not presumed to reject the possibility of prejudgment or bias; nor is the reasonable observer presumed to have any personal knowledge of the character or ability of the members of the relevant court ... ."

In both the Full Court of this Court (Walkden v. Townsville City Council (1991) 2 Qd.R. 221) and the New South Wales Court of Appeal (R v. George (1987) 9 NSWLR 527 and S and M Motor Repairs Pty. Ltd. v. Caltex Oil (Australia) Pty. Ltd. (1988) 12 NSWLR 358), emphasis has been given to the need for the apprehension of impartiality to be reasonable before there is a basis for a conclusion of ostensible bias, and that reasonableness connotes accurate knowledge of the circumstances giving rise to the question of ostensible bias.

None of the authorities suggests that the principle of ostensible bias extends to doubting a statement of objective fact by a judge concerning the circumstances surrounding the preparation of his judgment.

In the present matter, it is unnecessary to speculate concerning what the position might have been if the judge had not completed his judgment in this case prior to the commencement of the Toowoomba trial and publicly confirmed that he had done so and that his judgment in this matter remained unaltered consequent upon that trial. In these circumstances, there is no reasonable apprehension of bias.

Accordingly, the appeal is dismissed with costs.

IN THE COURT OF APPEAL

QUEENSLAND

C.A. No. 150 of 1992

Before the Court of Appeal

The President
Mr Justice Pincus

Mr Justice Derrington

BETWEEN:

GARNETT ERNEST VICTOR BAIL First

(First Plaintiff) Respondent

- and -

HADIJAH BEE BAIL Second

(Second Plaintiff) Respondent

- and -

CLARENCE GIBBONS Appellant

(First Defendant)

- and -

WASTERID PTY. LTD.

(Second Defendant)

REASONS FOR JUDGMENT OF THE COURT

Delivered the eleventh day of December, 1992

MINUTE OF ORDER:	APPEAL DISMISSED WITH COSTS
CATCHWORDS:	Courts and Judges. Bias. Judgment delivered of reserved decision during hearing of another case by same Judge in which evidence adverse to applicant was led - Judge stated when delivering it that it had been written prior to commencing second trial - whether ostensible bias.
Re JRL; ex parte CJL (1986) 161 CLR 342
Counsel:	Mr R.A.I. Myers with him Mr H.G. Linacre for the Appellant
Mr L.D. Bowden for the Respondents

Solicitors: Messrs. Palella Humphries and Co. for the

Appellant

Messrs. Robert Lyhn and Co. for the
Respondents

Hearing date: 17th November, 1992
IN THE COURT OF APPEAL

QUEENSLAND

C.A. No. 150 of 1992

BETWEEN:

GARNETT ERNEST VICTOR BAIL First

(First Plaintiff) Respondent

- and -

HADIJAH BEE BAIL Second

(Second Plaintiff) Respondent

- and -

CLARENCE GIBBONS Appellant

(First Defendant)

- and -

WASTERID PTY. LTD.

(Second Defendant)

The President
Mr Justice Pincus

Mr Justice Derrington

Judgment of the Court delivered on the

eleventh day of December, 1992

APPEAL DISMISSED WITH COSTS