Candetti Constructions Pty Ltd v Fonteyn

Case [2010] SASCFC 63

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

CANDETTI CONSTRUCTIONS PTY LTD v FONTEYN

[2010] SASCFC 63

Judgment of The Full Court

(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice Sulan)

29 November 2010

PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - ORDINARY RULE

PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - REASONABLE SUSPICION OF BIAS

PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - TIME FOR TAKING OBJECTION

Application for permission to appeal from decision of the Full Court of the Industrial Relations Court of South Australia - Candetti Constructions Pty Ltd and Ace Panel Systems Pty Ltd were separately charged with offences under section 19(1) of the Occupational Health, Safety and Welfare Act 1986 (SA) - Ace Panel Systems pleaded guilty and was sentenced by Industrial Magistrate - charge against Candetti Constructions heard more than 12 months later by the same Magistrate who sentenced Ace Panel Systems - Candetti Constructions pleaded not guilty - at opening of trial, counsel for Candetti Constructions indicated that Candetti Constructions was content to proceed with the same Magistrate presiding - Industrial Magistrate found Candetti Constructions guilty of the charge - Candetti Constructions appealed to Senior Judge of the Industrial Court on basis that Magistrate should have recused himself - Judge found that a reasonable apprehension of bias was made out - Judge found that there could not be a waiver of the right to object to the apprehension of bias in criminal proceedings - majority of Full Court of Industrial Relations found that no appearance of bias arose on appeal - whether majority of Full Court correct in concluding that no appearance of bias arose on the part of presiding Industrial Magistrate - whether there was waiver by Candetti Constructions.

Held:  permission to appeal granted but appeal dismissed - majority of the Full Court correct in concluding that no appearance of bias arose on the part of the Industrial Magistrate - even if an appearance of bias did arise, in the circumstances, any rights arising therefrom were waived.

Occupational Health, Safety and Welfare Act 1986 (SA) s 4(2) and s 19(1), referred to.
Fonteyn v Ace Panel Systems Pty Ltd [2010] SAIRC 43; Fonteyn v Candetti Constructions Pty Ltd [2009] SAIRC 36; Candetti Constructions Pty Ltd v Fonteyn [2010] SAIRC 10; R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256; Webb v The Queen (1994) 181 CLR 41; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Johnson v Johnson (2000) 201 CLR 488; MJD v R [2006] NSWCCA 151; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411; R v Burrell (2007) 175 A Crim R 21; R v Vlassakis (2001) 216 LSJS 274; R…

Continue reading Candetti Constructions Pty Ltd v Fonteyn

Sign in free to access the full text

Details
AGLC
Candetti Constructions Pty Ltd v Fonteyn [2010] SASCFC 63
Case
[2010] SASCFC 63
Decision Date

CaseChat Overview and Summary

Candetti Constructions Pty Ltd sought permission to appeal from a decision of the Full Court of the Industrial Relations Court of South Australia. The dispute concerned a charge against Candetti Constructions under the Occupational Health, Safety and Welfare Act 1986 (SA). The same Industrial Magistrate who had previously sentenced Ace Panel Systems Pty Ltd for a similar offence presided over the trial of Candetti Constructions, which pleaded not guilty. At the commencement of its trial, Candetti Constructions indicated its consent to the Magistrate continuing to hear the matter. Following a finding of guilt, Candetti Constructions appealed, arguing the Magistrate should have recused himself due to a reasonable apprehension of bias.

The legal issues before the court were whether a reasonable apprehension of bias arose on the part of the Industrial Magistrate and, if so, whether Candetti Constructions had waived its right to object to the Magistrate presiding. The Senior Judge of the Industrial Court had found that a reasonable apprehension of bias was made out and that such a right could not be waived in criminal proceedings. However, the majority of the Full Court of the Industrial Relations Court found that no appearance of bias arose and that, in any event, there was a waiver.

The High Court held that permission to appeal should be granted but the appeal dismissed. It reasoned that, in accordance with the principles established in *Nudd v R* and *Smits v Roach*, a party is generally bound by the conduct of its counsel at trial. The court emphasised that the adversarial system operates on the basis that counsel has a wide discretion in conducting proceedings, and their decisions, including the failure to object to a judicial officer presiding, bind the client. Even if an appearance of bias did arise, the court concluded that, in the circumstances, any rights arising from such an apprehension were waived by Candetti Constructions' counsel.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GRAY J
Further, it is well established that as a general rule, the conduct of counsel at trial binds the party they represent. In Nudd,[44] Gleeson CJ made the following pertinent observations:[45]…A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise. Considerations of fairness often turn upon the choices made by counsel at a trial. In TKWJ v R, the appellant complained that evidence of his good character was not led. This, it was said, was unfair. In rejecting that argument, this Court said that the failure to call the evidence was the result of a decision by counsel, and that, viewed objectively, it was a rational decision. That, in the circumstances of the case, was conclusive. It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel's decisions bind the client. If it were otherwise, the adversarial system could not function. The fairness of the process is to be judged in that light. The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel's conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct.[Footnotes omitted - emphasis added][44] Nudd v R (2006) 225 ALR 161.[45] Nudd v R (2006) 225 ALR 161 at [9]. In accordance with the observations of the High Court in Nudd, Candetti Constructions is bound by the conduct of its counsel at trial. The importance of not permitting Candetti Constructions to resile from the position of its counsel at trial is emphasised by the serious nature of the allegation asserted by Candetti Constructions, namely that the Magistrate might not bring an impartial mind to his determination of the matters before him at trial. It is to be recorded that whether or not Candetti Constructions was specifically aware of the Magistrate’s findings in the earlier decision, waiver by its counsel to any objections to the Magistrate hearing the matter before him would be sufficient. In Smits v Roach,[46] the High Court considered the issue of whether it was sufficient for counsel to know of a disqualifying circumstance, rather than the party being represented, where counsel did not raise an objection on that basis to the judicial officer hearing the matter. In that matter, the Court was of the view that it was sufficient that counsel knew of the disqualifying circumstance, and that a failure to object did amount to waiver, irrespective of whether specific instructions were provided by the client on the issue, or whether the client even knew of the issue. In the course of their joint reasons, Gleeson CJ, Heydon and Crennan JJ commented:[47]…Indeed, in most cases litigants in the position of the respondents, or trial judges, or an appellate court, would have no reliable basis for discriminating between knowledge of counsel and knowledge of counsel's clients. They are not privy to communications between counsel and their clients. Ordinarily, those are confidential and privileged. When a litigant is legally represented, Judges communicate with counsel, not with the litigant. When, as sometimes occurs, a judge makes a disclosure of some matter for the purpose of enquiring whether a party desires to make submissions about possible disqualification, the response will come from counsel, not from the party. The judge may have no way of knowing what, if any, communications have taken place between counsel and client. The appellants were represented at trial by Mr Lindsay. If they had objected to McClellan J sitting, it would have been Mr Lindsay who would have made the objection. If the judge had disclosed his relationship with Mr Geoff McClellan, it would have been to Mr Lindsay that the disclosure would have been made, and it would have been for Mr Lindsay to respond. What, if anything, he might say to, or hear from, his clients before making that response, in the ordinary case, would be something of which neither the judge nor the respondents would know. If Mr Lindsay said that there was no objection to McClellan J sitting then it would not be for McClellan J, or the respondents, to investigate whether this was done upon instructions from his clients. Bearing always in mind that the ultimate question concerns the legal consequences for the respondents, does it make a difference that, in the present case, legal professional privilege having been waived, it is now known that Mr Lindsay, aware of the judge's relationship with Mr Geoff McClellan, raised no objection, but did so (let it be assumed) without having taken instructions from the clients? The answer to that question turns upon the principle according to which Mr Lindsay was representing his clients. It is a principle that involves, but is not limited to, general concepts of agency.The adversarial system of litigation operates upon the basis that a party is generally bound by the conduct of counsel, and that counsel has a wide discretion as to the manner in which proceedings are conducted. The width of that discretion is reinforced by the role of the barrister as an officer of the court, by the barrister's paramount duty to the court, and by the public interest in the efficiency and finality of the judicial processes. ……If McClellan J had raised the matter of his relationship with Mr Geoff McClellan in the course of the original discussion as to whether any party objected to his sitting, and Mr Lindsay had said there was no objection, neither the judge nor the respondents would have (or, for that matter, could have) investigated the question whether Mr Lindsay had instructions from his clients to say what he did. It cannot make a difference, as far as the legal consequences for the respondents are concerned, that the case is one of omission by Mr Lindsay. In the course of the litigation, Mr Lindsay's conduct included what he did not do as much as what he did. Failure to object to evidence or to pursue a particular line of argument, may, from one point of view, be an omission, but it is part of the conduct of the case. Nor is it possible to distinguish between the failure to object considered in Vakauta v Kelly, where the potentially disqualifying conduct occurred in court, and the failure to object in the present case, where there was a potentially disqualifying circumstance known to counsel. Indeed, the case illustrates the futility of endeavouring to assign an omission by counsel to either a particular time or a particular place.[Footnotes omitted]Kirby J agreed with the conclusion of the majority that, in the circumstances of that case, there had been a waiver by counsel irrespective of the instructing clients’ knowledge.[48][46] Smits v Roach (2006) 227 CLR 423.[47] Smits v Roach (2006) 227 CLR 423 at [45]-[46], [48].[48] Smits v Roach (2006) 227 CLR 423 at [132]-[139].

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

Full text does not contain this section.