Bass v Roberts No. DCCIV-98-438

BASS v ROBERTS
[2003] SADC 49
Judge Lowrie
Civil
Background

In this action the plaintiff sought damages against the defendants for authorising and/or distributing defamatory material. The plaintiff succeeded in this action by my judgment, which was delivered on 24 March 2000. The defendants appealed and the Full Court dismissed that appeal on 8 September 2000. The defendants appealed to the High Court and on 12 December 2002 by majority judgments the appeal was allowed and the following order made:
“1.    Appeal allowed with costs.
2. Set aside the orders of the Full Court of the Supreme Court of South Australia dated 8 September 2000 and in place thereof order that:
(a)    the appeal to that Court is allowed with costs;
(b)    the judgment of the District Court of South Australia dated 24 March 2000 is set aside and in its place:
(i) there be judgment for the second-named appellant, Kenneth Allan Case, with costs; and
(ii) there be a new trial of the action against the first-named appellant, Geoffrey Mark Roberts, the costs of the first trial of the action against Mr Roberts to abide the result of the new trial.”
Earlier this year, the plaintiff applied by a specially returnable application to me for directions concerning the retrial.
This application came on for hearing before me on 5 February 2003. Counsel for the plaintiff briefly pointed out that there was not any specific mention or direction in any of the reasons of the majority of the High Court that the retrial be before another judge, and, further, for reasons of practical management and no doubt costs savings, the practical course would be for me to embark on the retrial. Further, in reference to the judgment of the Honourable Justice Kirby that I could readdress all matters raised by him to determine the nature of Mr Roberts’ belief in the truth of what he was saying and in view of the definitive nature of the majority whether the same were malicious. In effect, the traditional reasoning cannot stand with the issue of constitutional freedom and I could concern myself with these issues. Mr Swan anticipated if I was involved in the retrial the extensive formal evidence could be tendered and Mr Bass would be available if there was a need for further cross-examination.
Mr Wilson appeared for the defendant and maintained that in his opinion a new trial was ordered and should be heard by another judge.
I indicated to Mr Wilson that he may want to seek advice and fixed the date for the further hearing on 7 March 2003.
On 6 March 2003 I received a letter from Mr Wilson advising me that Mr Roberts had instructed him that I disqualify myself from hearing the case. He enclosed an executed affidavit from Mr Case of 27 February 2003 and Mr Roberts of 26 February 2003. He further commented in his letter:
“In support of that position I have been instructed by my client to prepared the affidavits, copies of which are enclosed.
As it may be suggested, wrongly in my view, that the material contained in these affidavits might be constructed as contempt of court. I have taken this opportunity of forwarding the affidavits to you before filing them.
I would ask that you draw His Honours attention to the judgement of Mahoney JA in the case of Beanton v Rajski (1992) 29 New South Wales Law Reports 539.
It is my reading of that judgment that in circumstances such as this the judge concerned might consider his position informally with a view to preventing persons placing themselves in a position where it might be alleged against them that they have committed a contempt of the Court.
A copy of this letter and its enclosed affidavits have been sent to Mr Swan of counsel for the plaintiff.
I would ask that His Honour give consideration to seeing counsel in Chambers prior to the formal hearing of this application at 9.30 am on 7 March 2003.
I look forward to hearing from you.”
I briefly looked at the affidavit material. Some of the deposed matters caused me concern. On 7 March when the matter again came on for hearing I refused to see the parties in chambers but in Court I dictated on the transcript the fact that I had received the letter and affidavits. I mentioned that the thrust of the affidavit material were allegations of actual bias on my part in the conduct of the retrial. I was concerned at the allegations bearing in mind the same were never raised at trial, the Full Court or High Court. I indicated to Mr Heywood-Smith that if this matter was now raised the same should be the subject of a formal application supported by affidavit material, but, I was not prepared to examine the affidavit material until the same were filed.
Mr Heywood-Smith asked if I had referred to the case mentioned in the letter. I said I had together with much other material. Mr Swan said that he had not received a copy of the material until 9.30am on that morning. I indicated to Mr Heywood-Smith that he would have to consider if his client was proposing to proceed with the bias application and, if not, as to whether I should conduct the retrial. Mr Heywood-Smith said he was obliged to get instructions and the matter was then adjourned to Friday, 14 March 2003.
On 14 March 2003 I received a further letter from Mr Wilson in the following terms:
“We wish to advise that following Friday mornings’ hearing the writer conferred with counsel. As a result of that conference I am instructed to advise that any application that His Honour disqualify himself is premature.
The present, and only, application before His Honour is that dated 29 January 2003. That application seeks an order (1) that “the new trial be heard by His Honour Judge Lowrie.”
It is our understanding that purely by chance that application came before His Honour. It might have been heard by another Judge or a Master. At present, and until an order is made that the new trial be heard by His Honour Judge Lowrie, His Honour is not seized of the matter. It is only when His Honour becomes seized, if at all, that the defendant could have to give consideration to a formal application than His Honour disqualify himself.
I believe that different arguments exist in the determination of the current application than in the determination of an application to disqualify.
Unfortunately, the defendant and his legal advisors believed that this matter might be addressed informally. We note that His Honour is not disposed to deal with it on that basis and we obviously respect that decision. However, if the matter is to be addressed formally then the logical first step is to wait to see if His Honour becomes seized of the matter. It may well be that His Honour feels that the appropriate course is to pass the present application to another Judge or Master for determination. That is a matter for His Honour.
We apologise that it did not occur to us in Court that the above was the true position. If His Honour wishes to call the matter back on earlier than next Friday then by all means we shall endeavour to make ourselves available.”
On the morning of 14 March 2003, I then proceeded with the application as to whether I should involve myself in the retrial of this matter.
Again Mr Swan outlined the matters previously mentioned, namely, the wording of the High Court order and proficient case management and cost saving and if it was proper for me to embark on the retrial.
I had viewed the wording of the High Court order as a normal type order. Such orders when concerned with retrials either before Full Courts, Courts of Criminal Appeal or single justice retrials are expressed in such a manner. Often the rehearings or retrials are heard by the same prior constituted tribunals. At times the trial tribunal may have to reconsider the same material from a different or varied legal base. The rehearing tribunal is obliged to consider if it is appropriate and fair in the administration of justice to rehear the issues. I do not consider any assistance is gained from the absence of any mention by the learned High Court justices that the retrial should be fore a different trial judge, or, for that matter the Queensland decision, Pine Rivers Shire Council v W D Dorfler, No 223 of 1992, unreported judgment delivered on 10 May 1993.
Mr Swan contended that from the joint judgments of Justices Gaudron, McHugh and Gummow it is arguable that the High Court had not varied the important test and reckless indifference is still a proper foundation for a finding of malice.
He pointed out what the justices said in paragraph 114 and the comments of Kirby J in paragraphs 194 and 195.
Counsel for the defendant submitted to me that I should not place weight on the wording of the final order of the High Court as not specifically directing that the matter be heard by another judge. However, in all the circumstances and bearing in mind the comments of the majority it was not appropriate for myself as the original trial judge to rehear the matter. He pointed out that the new trial judge would have to determine questions of defamatory material, publication and malice. The High Court had referred to the evidence of Mr Roberts and views I had expressed on the credit of Mr Roberts.
Mr Heywood-Smith referred me to Halsbury’s Laws of Australia as follows:
“Ordinary rule A judge who may reasonably be suspected of bias is disqualified from hearing or determining a case. Such disqualification may arise by reason of actual bias or a reasonable apprehension of bias.”
He pointed out that I had made findings reflecting on the credit of Mr Roberts and, in effect, it would consequently be unfair of me to involve myself in the retrial. He referred me to the Dorfler decision, which dealt with some issues arising under the Local Government Act and commented
“We would set aside the order made below and remit the matter to the Planning and Environment Court, with a direction the case be re-heard by a judge other than the one from whom the appeal to this Court was brought. In our opinion, the latter direction is justified, not because of any apprehension that the judge below would not justly deal with the matter, but by the necessity, in the particular circumstances, to ensure that the appearance of impartiality only is maintained.”
Counsel further commented that if evidence from the previous trial were tendered in the new trial, the same might well invite a comment of a pre-judgment of the issues.
I note that the Chief Justice in paragraph 2 mentioned that “the parties should be held to the cases they presented in the South Australian courts”. The majority in paragraphs 70, 71 and 72 commented:
“Accordingly, the second of the two questions posed in Lange is answered by saying that, in the present case, the common law rules governing traditional qualified privilege are reasonably appropriate and adapted to serve a legitimate end compatible with the constitutionally prescribed system of representative and responsible government.
As we have indicated, Bass did not appeal against the trial judge's finding that the occasions were privileged. And Roberts did not appeal, and Case did not press his appeal, against the trial judge's findings that the defence of extended qualified privilege did not protect the publications. All parties now wish to depart from the positions that they adopted in the Full Court. In our view, having conducted their cases in the manner that they did in the Full Court, they should not be allowed to depart from the courses they then adopted. (emphasis added)
Moreover, the holding of the parties to their cases does not cause any injustice to any of the parties. At all stages, including in this Court, it has been assumed that the decision in Braddock v Bevins [1948] 1 KB 580 at 590-591 gives effect to the common law of Australia. That assumption was correctly made. In any event, if that decision was contrary to the common law of this country, the common law rules would have to be amended to conform to the Constitution. ”
I was a little concerned at the references from Mr Heywood-Smith’s comment on the nature and/or extension of evidence of Mr Roberts at the retrial. The issues again to be are the allegations of defamatory material published by Mr Roberts. In this retrial there will be little doubt that Mr Roberts has to be called again to address the relevant issues including of course the area of malice. In my original judgment I commented at length on the evidence of Mr Roberts and made specific findings on his credit. If I did embark on the retrial the issue of his credit will be of importance. Assuming if I again made findings reflecting on Mr Roberts that mythical impartial street observer with the sufficient knowledge of these issues could well raise concerns about my further involvement with a conclusion of unfairness. These issues are set out in Halsbury’s Laws of Australia paragraph 125-290 and the footnote cases as follows:
“A reasonable apprehension of bias exists where there is a reasonable apprehension of possible partiality by an observer with sufficient knowledge of the subject to make a reasonable judgment.”
(Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87; 93 ALR 435 at 447-8; 64 ALJR 412 at 419 per Mason CJ and Brennan J, HC of A, Full Court; S & M Motor Repairs Pty Ltd v Caltex Oil (Aust) Pty Ltd (1988) 12 NSWLR 358 at 378, 91 FLR 175 at 194; 11 IPR 97 at 117 PER Priestley and Clarke JJA, CA(NSW); Balic (No 2) (1994) 75 A Crim R 515, CA(NSW); Cheatle v Davey (1989) 18 ALD 481 per Von Doussa J, Fed C of A. See also R v Maxwell (unreported, CCA(NSW), Full Court, NSWCA 60282/98, 23 December 1998, BC9807450) (a judge should not hear and decide a case if either the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues)
For these reasons I feel it improper for me to involve myself in the retrial of this matter and the matter will be referred to a Master for the relevant pre-trial procedures.
I make an order that the costs of this application be costs in the cause.

[2003] SADC 49

10 April 2003