Buzzacott v Morgan No. Scgrg-99-356 Judgment No. S172

[1999] SASC 172

BUZZACOTT v MORGAN
[1999] SCSA 172

Civil

Debelle J

1. Before the court is an application by the defendant to strike out the statement of claim.  At the very outset of the application, Mr Lindon, who appears as some kind of 'McKenzie friend' for the plaintiff, asked whether I had any shares in Western Mining Corporation and in Westpac Banking Corporation.  I said that I had not, and that is correct.  Mr Lindon did not ask whether my wife had shares in Western Mining Corporation. He did ask whether my wife had shares in Westpac Banking Corporation, and I answered that she did.  Because of the submissions, I considered it prudent to ask my associate to inquire of my wife whether she had any shares in Western Mining Corporation.  I find that she does.  She holds 1,000 shares, which, on any view, is a very small holding in that very substantial company.  It is a holding which in no respect has any capacity to influence the affairs of the company.   Equally, it is a holding which is unlikely to be affected to a material extent by the outcome of this litigation. 

2. Upon my informing the parties that my wife holds these shares in Western Mining Corporation, Mr Lindon, on behalf of Mr Buzzacott, has asked me to disqualify myself on the ground, not of any actual bias, but of a perception of bias in the mind of the reasonable observer.  He relied on the decision of the High Court in Livesey v New South Wales Bar Association (1983) 151 CLR 288. Since that decision, there have been other decisions of the High Court dealing with the question of reasonable perception of bias. It is sufficient to refer to one of the more recent decisions, Webb v The Queen (1994) 181 CLR 41.

3. The test in this country is well settled.  The test is whether a fair-minded and informed observer would have a reasonable apprehension of a lack of impartiality on the part of the judge.  It is conveniently described as the 'reasonable apprehension test of bias'. 

4. When considering whether a judge should disqualify himself or herself, it is important to bear in mind that the appearance, as well as the fact, of impartiality is necessary to retain confidence in the administration of justice. The underlying reasons for the principle were stated by Mason CJ and McHugh J in Webb v The Queen in these terms (at 51):

   “Behind this reasoning is the assumption that public confidence in the administration of justice will be maintained because the public will accept the conclusions of the judge.  The premise on which the decisions in this court are based is that public confidence in the administration of justice is more likely to be maintained if the court adopts a test that reflects the reaction of the ordinary, reasonable member of the public to the irregularity in question. References to the 'reasonable apprehension of the lay observer', the 'fair-minded observer', the 'fair-minded informed lay observer', 'fair-minded people', the 'reasonable or fair-minded observer', the 'parties or the public', and the 'reasonable person' abound in the decisions of this court and other courts in the country.  They indicate that it is the court's view of the public's view, not the court's view, which is determinative.  If public confidence in the administration of justice is to be maintained, the approach that is taken by fair-minded and informed members of the public cannot be ignored.  Indeed, as Toohey J pointed out in Vakauta (1989) 167 CLR at 585:

   “In considering whether an application of bias on the part of the judge has been made out, public perception of the judiciary has not advanced to attributing to a fair-minded member of the public a knowledge of the law and the judicial process which ordinary experience suggests is not the case.  That does not mean that the trial judge's opinions and findings are irrelevant.  The fair-minded and informed observer must place great weight on the judge's view of the facts”.”  (Footnotes omitted)

5. I have no interest at all in the shares which are held by my wife. Our circumstances are that we have married after the death of our respective former spouses. The likely beneficiaries of those shares will therefore be her own children.  I have every confidence in my own ability to hear and determine this matter uninfluenced by the fact that my wife holds these shares.  I am in no respect affected by the holding of my wife of an insubstantial, almost to the point of being minuscule, number of shares in this large corporation. But it is the public perception to which I must have regard.  It cannot be overlooked that the public in this context includes members of the Aboriginal people of this country.  In my view, it is important that the Aboriginal people have every confidence in the administration of justice to which they, like every other citizen of this country, are subject.  The time will have to come when courts will have to examine afresh the decision in Dimes v Grand Junction Canal (1857) 3 HLC 759; 10 ER 301 and consider the extent to which, if at all, small shareholdings disqualify a judge but I do not think that this is the occasion upon which to embark upon a consideration of that difficult issue.

6. In all the circumstances, I think that the appropriate course is that I disqualify myself from hearing and determining this matter. I emphasise, although it is perhaps unnecessary to do so, that no allegation of actual bias was made.  All that is asserted is that there is a reasonable perception of bias.  Whilst I am confident that there are many members of the community who would share my view that I should not be disqualified, I nevertheless believe that the appropriate course is that I should, particularly as there are other judges of this court who will not be disqualified by reason of a like shareholding.

7. The application will, therefore, be adjourned and be heard by another judge of the court.  I cannot at this stage fix a date.  A date will be fixed by the appropriate clerk when we know which judges are available. 

8. Orders as follows:

9. Application adjourned.

10. That plaintiff and defendant receive transcript of today’s proceedings.

11. That the costs of today’s proceedings be reserved.