Bradford v Bradford

[2015] QDC 316

DISTRICT COURT OF QUEENSLAND

CITATION:

Bradford v Bradford & Ors [2015] QDC 316

PARTIES:

HAYDEN RONALD BRADFORD AS LITIGATION GUARDIAN FOR B.L. BRADFORD AND L.D. BRADFORD

Plaintiff

V

DEAN BARRY BRADFORD and RUSSELL GASKE AS EXECUTORS OF THE ESTATE OF DOROTHY NORMA BRADFORD AND DEAN BARRY BRADFORD

Defendants

FILE NO:

No. 349 of 2014

DIVISION:

Civil

PROCEEDING:

Civil trial – Application for Judge to disqualify himself by reason of apprehended bias

DELIVERED ON:

24 November 2015

DELIVERED AT:

Southport

HEARING DATES:

23, 24, 25 March, 26, 27 October and  23, 24 November 2015

JUDGE:

Judge C F Wall QC

ORDER:

Application granted.  New trial ordered.  Parties granted a certificate under the Appeal Costs Fund Act 1973

CATCHWORDS:

CIVIL TRIAL – PRACTICE AND PROCEDURE – application for judge to disqualify himself by reason of apprehended bias – statements made by judge about plaintiff’s case – relevant principles.

CASES:

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

COUNSEL:

Ms C Sparke QC and Mr P Panayi for the Plaintiff

Mr T Green (Solicitor) for the Defendants

SOLICITORS:

Robbins Watson Solicitors as town agent for Cook & Associates (until 3 September 2015) and then AVA Solicitors  for the Plaintiff

Carter Green Lawyers for the Defendants

HIS HONOUR:   This is an application by the plaintiff that I should disqualify myself on the basis of apprehended bias.  The application is based on observations and remarks which I made yesterday in relation to the conduct of the case.  And it is also based on a revision of rulings I had made at the outset of the trial in relation to the admissibility of certain parts of the evidence of some of the witnesses.

So far as the observations I made yesterday in relation to the conduct of the case are concerned, the following are the remarks which I made which are relied upon by the plaintiff.  They are, I concede, somewhat injudicious, and they were made as a result of extreme frustration and disappointment at what was happening and what had been happening in this case, and what was likely to continue happening.  The remarks were these:  one:

The case is a never-ending story as far as the plaintiff’s side is concerned.

Two:

It’s just a disgrace.

Three:

It’s just a tragedy, what’s being done here.

Four:

There is hardly anything in dispute of a significant monetary value.

This was clearly wrong.  It is suggested, as a result of this comment, that I prejudged the evidence of Hayden Bradford, and that the comment was made without giving him the benefit of the doubt.  I said:

…giving him the benefit of the doubt we’re talking about two or three thousand dollars at best.  Two or three thousand dollars at best if he wins, on all items of property – on all items of property no more than that.

And that was clearly not the case on his evidence so far as the alleged monetary value of stamps, if they exist, and the antique writing desk, if it exists, are concerned.

Five:

The plaintiff has no intention of ever finishing.

Six:

I have not seen, in almost 20 years on the bench, a more concerning case than this.

And for present purposes, I repeat that observation.

Seven:

The proceedings, when issued, were quite precipitous.  The plaintiff has just jumped in with litigation.

That statement has been effectively adopted by Mr Green in his proposed amended defence, in paragraph 9.

Eight:

He, the plaintiff, says he is doing this for the benefit of his children.  That’s just rubbish.

I should mention here that this claim arises out of a fractured relationship between parts of the family here.

Nine:

I may not be getting much assistance from cross-examination about lists of property.

Ten:

This type of case brings the legal profession into gross disrepute.

And I maintain that view.

Eleven:

My invitation to the defendants to amend their case.

In this respect it is submitted that I effectively invited the defendant to recast the defence to plead a gift inter vivos or a gift mortis causa, which is submitted went beyond the pleading in paragraph 7.2 of the defence, and beyond the statements – which yesterday I readmitted into evidence – made by Dean Bradford in his first affidavit in paragraphs 20, 22, and 28;  in his second affidavit at paragraph 29, and by Judith Bradford in her affidavit at paragraph 25.

The plaintiff complains that I said that I understood the defence to be that such gifts were made by the deceased.  I did, and I do.

It is submitted that the proposed amendments to paragraph 7.2 raise issues of gifts made in contemplation of death, and constructive trusts.  On the second day of the trial Mr Green, for the defendants, conceded that he had not pleaded a constructive trust in relation to gifts but submitted – and this is at page 2-9 of the transcript – that

the nature of the gift lends itself to that.  Today, I further suggested to him that consideration of including an allegation of gifts inter vivos also be given to his proposed amended defence.

In relation to the alleged invitation to the defendants to recast their defence in the manner referred to, objection was taken on the basis that the proposed amendments had not been pleaded or argued, and were based on as yet unspecified statements by the deceased.  I said that was the effect of what was pleaded in paragraph 7.2 of the defence;  that that was effectively pleaded.  I maintain that view.  It is certainly the way the matter has been conducted from the defendant’s side, notwithstanding that it is not pleaded in the specificity normally associated with pleading by counsel.

The trial has reached its seventh day, unfortunately.  It should never have gone for this long.  If any blame is to be attributed to its duration, it is, in my view, the plaintiff’s, and not the defendants. 

The test for apprehended bias has been reiterated by the High Court in the case of Ebner against the Official Trustee in Bankruptcy (2000) 205 Commonwealth Law Reports 337.  The effect of that decision is that the test in this country with respect to the appearance of bias 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 questions he is required to decide. 

The Court further said that the “apprehension of bias” principle may be thought to find its justification in the importance of the basic principle that a tribunal be independent and impartial.  So important is the principle, that even the appearance of departure from it is prohibited, lest the integrity of the judicial system be undermined.

The question is one of possibility, real and not remote, not probability.

So I must approach the plaintiff’s application on this basis.  If a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions I am required to decide, or might reasonably apprehend prejudgment, or might think that I have made up my mind about matters in dispute;  if a fair-minded lay observer might possibly apprehend those matters, then I should disqualify myself.

It is a question of possibility, not probability.  What is required is an objective assessment of the connection between the facts and circumstances relied on by the plaintiff, namely what I said yesterday, and what I was also minded to allow so far as the defence is concerned and the asserted conclusion that I might not bring an impartial mind to bear on the issues to be decided in the case.

On balance, and without hesitation, I think that a fair-minded observer might reasonably regard my remarks as going beyond a mere frustrated expression of exasperation about the proceeding and its progress. 

If the sole basis of the application had been the revision of evidentiary rulings and the invitation to the Defence to amend the defence based on a perception of the evidence already given, I would have no hesitation in refusing the application made by the plaintiff;  however, that is not the sole basis.  For these reasons, I consider I have no option but to disqualify myself.  I do so with extreme reluctance but no hesitation.  It is unfortunate, after nearly seven days, that we have reached this point;  but we have.

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