CCOM Pty Ltd v Jiejing Pty Ltd
[1992] FCA 160
•20 Mar 1992
/ho W 1
3UDGRhEPJT No. ........ .... Y .....L,,.,,,,,, .
IN THE FEDERAL COURT OF AUSTRALIA ) No. Qtf 124 of 1991 QUEENSLAND DISTHiCT REGISTRY 1 GENERAL DIVISION 1
BETWEEN: CCOM PTY LTD
Applicant
AND : JIEJING PTY LTD First Respondent
AND : PARAVET INVESTMENTS PTY LTD Second Respondent
AND : RONALD HOWARD THOMAS and ALLAN GARNHAM Third Respondents
AND : JEFFREY JOHN YATES Fourth Respondent
AND : ERIC RUSSELL CHAF'PEL Fifth Respondent
JUDGE MAKING ORDER: Drummond DATE OF ORDER: 20 March, WHERE MADE: Brisbane THE COURT ORDERS THAT: NOTE : - Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.
The application brought by . McCullagh that Drummond J be disqualified from hearing the Notice of Motion filed 2 March, 1992 is dismissed.
IN THE FEDERAL COURT OF AUSTRALIA ) No. Q9 124 of 1991 QUEENSLAND DISTRICT REGISTRY ) GENERAL DIVISION 1
BETWEEN: CCOM PTY LTD
Applicant
AND : JIEJING PTY LTD First Respondent
AND : PARAVET INVESTMENTS PTY LTD Second Respondent
AND : RONALD HOWARD THOMAS and
ALLAN GARNHAMThird Respondents
AND : JEFFREY JOHN YATES Fourth Respondent
AND: ERIC RUSSELL CHAPPEL Fifth Respondent
Coram: Drummond J Date: - 20 March, 1992
Place: Brisbane
REASONS FOR JUDGMENT
A Notice of Motion filed by the First Respondent in the action, Jiejing Pty. Ltd., came before me on 6 March last: orders are sought that the Applicant in the action, CCOM Pty. Ltd., and the Third Respondents in the action, Ronald Howard Thomas and Allan Garnham, be adjudged guilty of contempt of court in failing to delete from a computer hard disk information copied on to it from certain of Jiejing's disks,
2 l
in breach of an undertaking given to this Court on their behalf by their counsel on 23 December, 1991. By this Notice of Motion, Jiejing also seeks an order that Peter William Hackett and Adrian John McCullagh be adjudged guilty of contempt of court by aiding, abetting, procuring or causing the Applicant and the Third Respondents to commit this contempt of court. On that day I ordered that the Second, Fourth and Fifth Respondents in the action be joined with Jiejing as Applicants in the contempt proceedings.
Mr. Thomas and Mr. Garnham are principals of the Applicant, CCOM Pty. Ltd., in the main action, which is brought in respect of an alleged infringement of a patent of which CCOM claims to be the exclusive licensee and of which Messrs. Thomas and Garnham are the patentees; Mr. Hackett and
Mr. McCullagh are partners in the firm of solicitors, Stokes
and Panettiere, acting for CCOM Pty. Ltd., Mr. Thomas and Mr.
Garnham in that action.
On 6 March, 1992 directions were given with respect to the hearing of this Notice of Motion.
Mr. Sullivan, who then appeared for Mr. McCullagh only, said he had instructions to make application for me to disqualify myself from hearing the motion. Senior counsel for Mr. Hackett informed me that his client did not wish to join
in Mr. McCullaghfs application and Mr. Hackett himself also
informed me that none of the parties he then represented, CCOM
3 \
Pty. Ltd., Mr. Thomas or Mr. Garnham, wished to join in Mr.
McCullagh's application either.
1 heard argument on 9 March, 1992 on whether I should disqualify myself from hearing the contempt application. Only Jiejing, the Applicant in the contempt proceedings, and Mr. McCullagh appeared, by their respective counsel.
Guidance as to how a judge should deal with an application that he disqualify himself because of an apprehension of bias is contained in the judgment of the High Court in Livesev v The New South Wales Bar Association (1983) 151 C.L.R. 288 at 294:
"In a case such as the present where there is no allegation of actual bias, the question whether a judge who is confident of his own ability to determine the case before him fairly and impartially on the evidence should refrain from sitting because of a suggestion that the views which he has expressed in his judgment in some previous case may result in an appearance of pre-judgment can be a
difficult one involving matters 'of degree and particular circumstances may strike different minds in different ways ' (per Aickin J. in &) . If a judge at first instance considers that there is any real possibility that his participation in a case might lead to a reasonable apprehension of pre- judgment or bias, he should, of course, refrain from sitting. On the other hand, it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre- judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court."
4 l
Jiejing's account of the events leading up to the giving of the undertakings for the alleged breach of which the orders are sought in the Notice of Motion is set out in the affidavits of Michael Alan Owens and Alexia Margaret Warren, the only evidence before me on 9 March.
On 10 December last, Mr. Hackett, who then appeared for CCOM and the Third Respondents, referred in the course of the directions hearing held that day to CCOM's claim that it was entitled to access on discovery to Jiejing's disks containing the source code relating to Jiejing's computer software program, which program is alleged in the action to infringe CCOM's patent; Mr. Hackett told me that, while Jiejing was prepared to give CCOM access to certain databases on each disk, it was not prepared to give access to the source code of its program. He sought an order for discovery of Jiejing's source code. The matter is technically complex so I directed that, if CCOM wanted discovery of Jiejing's source code, it should make application for the same at the
material to be filed prior to that date. That application is directions hearing which I then fixed for 6 March, 1992, upon being pursued. As appears from paragraphs 53 to 69 of her affidavit, at about 10.30 a.m. on 23 December, 1991, Ms. Warren, a solicitor in the employ of Jiejing's solicitors, wont to the office of CCOMfs solicitors for the purpose of continuing mutual inspection. She took up with Mr. Hackett. According to her, Mr. Hackett at one stage checked a box she had brought with her containing certain of Jiejing's disks on which was recorded, among other inf onnation, the source code. In the course of that day, while Ms. Warren was inspecting certain documents given to her by Mr. Hackett, he took up the documents Ms. Warren had brought, together with the box containing the computer disks, saying that he intended to show them to his clients who were down the corridor. Mr. Hackett later returned to where Ms. Warren was and gave her back the documents he had earlier taken away, but not at that stage the box containing Jiejing's computer disks. Later again that day, according to Ms. Warren, the following exchange took placer
Hackett: "By the way we copied those computer disks
and the other documents."Warren: "My instructions are that you are not allowed to copy them - you are not authorised to do so."
Hackett: "They were discovered -. - we have a right to
do so. "
Warren : "No - we will have to deal with this and I will talk to Michael (Owens)."
On her return to her office, Ms. Warren telephoned Mr. Owens at his home and told him what had happened. He says he instructed her to require Mr. Hackett to give back the copies of Jiejing's disks which Mr. Hackett told Ms. Warren had been made by him.
6 I
Upon being told by Ms. Warren later that morning that Messrs. Stokes and Panettiere considered that the Jiejing disks had been discovered and that they wished to keep all the information that they had obtained from them, Mr. Owens told Ms. Warren to contact Jie j ing ' S principal, Mr. Yates , who confirmed that the disks which Mr. Hackett had taken from Ms. Warren earlier that morning and later told her had been copied, in fact contained the contentious source code. Mr. Owens, after receiving instructions to make an application to the Court that day, says he telephoned Mr. Hackett and told Mr. Hackett that he required the copies of the disks to be returned as they had been copied in an unauthorised manner. He says that Mr. Hackett, in reply, said that "under S. 43 of the Copvrisht Act, they had a right to take copies on discovery and inspection."
As appears from paragraphs 22 to 25 of his
affidavit, although Mr. Owens' concerns were initially
directed to what he regarded as Mr. Hackett's unauthorised
morning of 23 December, before going off to court that copying of the Jiejing disks containing the source code on the afternoon he spoke to Mr. Chappel, the Fifth Respondent, and a director of Jiejing: Mr. Chappel emphasised the need to seek from the Court an order ensuring that the Jiejing information that remained on the Stokes and Panettiere hard disk would be deleted.
The undertakings were given in Court on an application brought before me by Jiejing on the afternoon of 23 December by counsel on behalf of CCOM and Messrs. Thomas and Garnham. They were effectively consent undertakings and they are contained in a document signed by counsel for CCOM and Messrs. Thomas and Garnham and the solicitors for the First, Second, Fourth and Fifth Respondents in the action. The relevant undertaking is contained in paragraph A of the document. It appears to reflect the concern that Mr. Owens said Mr. Chappel had expressed to him earlier that afternoon. It provides:
"A The Applicant and Third Respondents by their Counsel
undertake-(1) To copy from the hard disk onto floppy disks, all copies of the disks referred to below, which were copied on 23 December 1991- Chinese WP Master ARC 8.2.89 Backup
Set B;(ii) Final File Chinese 08.01.88;
(iii) Fastword Backup 09.02.85;
( iv) Chinese Program Backup 09.02.88; (v) Chinese WP Master ARC 8.2.89 Backup Set A;
(vi) Master DBF 7.2.89 1509; (vii) Master DBP 7.2.89 5100;
(viii) Master DBF 7.2.89 10200.
(2) To retain the floppy disks and the floppy disk copy of part of the disks referred to above made earlier today in a sealed envelope until further order;
(3) To delete the copies recorded on the hard disk;
(4) Save as set out above, not to make any further
copy or use of the disks."
Mr. hens says that both Mr. Hackett and Mr. McCullagh were present in Court on 23 December, 1991 when the undertakings were given.
Later in the afternoon of 23 December, after the court proceedings, Ms. Warren returned to Stokes and Panettiere's office for the purpose, as she puts it, "of executing the order made by" myself earlier that day. (See paragraph 2 of her affidavit). She is referring to the undertakings. She took up with Mr. McCullagh, who copied from his firm's hard disk onto floppy disks provided by Ms. Warren, the information, including the source code, that had been copied from the Jiejing disks which Ms. Warren had given to Mr. Hackett that morning. In Ms. Warren's presence, Mr. McCullagh sealed up these floppy disks in an envelope, in accordance with the procedure required by the undertaking. (See paragraphs 2 to 48 of her affidavit.) Ms. Warren had instructions to ensure that once the material in question had been copied from the Stokes and Panettiere hard disk onto the
overwritten to ensure it could not be retrieved. She raised floppy disks, the information on the hard disk should be this with Mr. McCullagh but, according to Ms. Warren, he
declined to comply with her request. (See paragraphs 37 to 40 of her affidavit.) What then occurred, according to the account contained in the affidavits of Mr. hens and Ms. Warren, is as follows:
Me. Warren, on 24 December, 1991, sent a facsimile to Stokes and Panettiere seeking confirmation that the source codes originally copied on the morning of 23 December, after Mr. Hackett took the disks containing those source codes from Ms. Warren, had been deleted from Stokes and Panettiere's computer hard disk in such a way that they could not be retrieved. In returning a telephone call by Ms. Warren, Mr. Hackett told her that the undertaking given in Court on 23 December did not require such a procedure to be followed and that "we have complied with the order . . . we're not going to rebuild the material. We take offence to any suggestion that
we will." (See paragraphs 77 to 81 of her affidavit.) The submission on behalf of Mr. McCullagh, that I should disqualify myself from hearing the contempt motion, arises out of what took place before me on an application brought as a matter of urgency on 27 December last by Jiejing and the Second, Fourth and Fifth Respondents. I was then informed by counsel for Jiejing that attempts to contact
Messrs. Hackett and ~c~ullagh earlier that day had been unsuccessful. Although Mr. Doyle, the counsel who had represented CCOM and Messrs. Thomas and Garnham at the hearing before me on 23 December last appeared on 27 December, he had not been able to obtain any instrhctions. He was therefore not in a position to make any submissions and the proceedings were essentially heard ex parte.
I
That morning, counsel for Jiejing sought an order that CCOM and Messrs. Thomas and Garnham delete the copies of the Jiejing material that had been copied onto the Stokes and Panettiere hard disk "in such a way that the same may not be retrieved". I declined to make that order on the ground that the undertaking given on behalf of CCOM and Messrs. Thomas and Garnham on 23 December to delete that material from the Stokes and Panettiere hard disk was clear and on the material placed before me that day, 27 December, a breach of that undertaking had clearly occurred.
My remarks were promptly brought to the attention of Mr. McCullagh later that day by Jiejing's solicitors. Mr. Owens says that in the evening of 27 December, he received a telephone call from M r . McCullagh, that he then spoke with Jiejingrs principal, Mr. ~ates and that by arrangement with
Mr. McCullagh, Mr. Owens attended at the office of Stokes and
Panettiere on Saturday, 28 December, with Mr. Yates, who personally performed the procedures on the Stokes and
been copied onto that firm's hard disk. (See paragraphs 27 to Panettiere computer to overwrite the source material which had 38 of Mr. Owens' affidavit.) CCOM and Messrs. Thomas and Garnham did not seek to bring the matter back before me to challenge the correctness of the views I expressed on 27 December. Instead, they apparently instructed Mr. McCullagh to follow the course that was taken on 28 December that involved the overwriting performed by Mr. Yates.
The application that I should disqualify myself was
made on two grounds*
Firstly, that 1 had effectively instigated the contempt motion by comments I made on 27 December last in circumstances in which it should be inferred that, but for my comments, no such motion would have been brought.
Secondlv, that even if the facts ultimately found are in accordance with those deposed to in Ms. Warren's affidavit which was read before me on 27 December last (and I wae told by Mr. Sullivan that there will be a contest as to this), a reasonable observer would conclude, from the language
I then used, that I had predetermined the issue of whether on
such facts, there had been a breach of the undertaking by deciding that what had been done did not constitute a deletion of information from the hard disk in question, contrary to
what was required by the undertaking given on 23 December.
Jiejing submits that I should not disqualify myself ftom hearing the contempt application. As I have mentioned, Mr. McCullaghrs partner, Mr. Hackett, does not join in the application asking that I disqualify myself, nor do Mr. McCullagh and Mr. Hackettfs lay clients, CCOM and Messrs. Thomas and Garnham.
As to the first objection, Mr. ~ullivan for Mr. McCullagh submitted that a person who is in the position of accuser ought not to participate in the decision which is reached in relation to the complaint which has been made and that a person will be in the position of accuser where he is in substance the complainant regarding the conduct of the person who is subject to inquiry. He cited Stollery v The Greyhound Racina Control Board (1972) 128 C.L.R. 509 and
Macauarie Universitv: Ex ~arte Onq (1989) 17 N.S.W.L.R. 113.
He went on to submit that, it being conceded before me on 6 March, 1992 that the Respondents to the motion had by 28 December, 1991 done what Jiejing contended they should have done in order to comply with the undertaking, then (always assuming there was a contempt to begin with) that contempt was purged on 28 December, 1991, and Jiejing therefore has no practical interest in its application, which a fair minded observer would reasonably conclude would not have been brought but for my statements at the hearing of 27 December, 1991.
truth been instigated by Drummond J who thus is in the The submission was also made that: "The complaint has in position of accuser." Mr. Sullivan referred to what I said in
the course of the proceedings on 27 December last:
". . . what you have got is what seems to me to be -
if you're right, if your information is correct - a clear breach of an undertaking by the applicant and the third respondent.
I would expect that an application be brought to deal with the applicant and the third respondent for a breach of those undertakings." (page 5)
And
". . . ~t also appears that the solicitor involved -
the solicitor for the applicant and the third respondent, Mr. Hackett, is a party, on the face of it, a party to that breach of undertaking. I would expect that, in due course, you would bring an application against all those involved, including the solicitor, for breach of this undertaking. And if the undertaking continues - if the breach of the undertaking, assuming there is a breach as appears to be the case on the material before me, if that prima facie breach continues, well, then, that would go to aggravate the misconduct of those involved, including the solicitor, in the breach of the undertaking." (pages 6-7)
And
"There can be no possible doubt, I wouldn't have thought on - as I see things at the moment. Now, the undertaking, on the face of it, has already been breached. As I say, if the prima facie breach continues that will go to aggravate the breach by all involved, including the solicitor. It's really in their hands to rectify the situation and I would
expect to see an application for - from your side before the court early in the new year. When I say 'early in the new year,' I mean early in the new law
year." (page 8)He also tendered a letter, which became Exhibit
wM1 U , dated 29 January, 1992 sent by Jiejing's solicitors to
Messrs. Stokes and Panettiere, marked for the attention of Mr. Hackett, in which they referred to preparation of the material to support the contempt application being in hand and went on to state:
"Further to the final paragraph of our letter to you dated 8th January, we confirm that we hold instructions from our clients to fulfil the expectations of the Court expressed in particular by Drummond J during the hearing on Friday 27 December,
1991. "
In responding to Mr. Sullivan's submission, Mr. O'Regan, senior counsel for Jiejing, referred to the passage that follows on immediately from that passage at page 5 of the transcript which I have already set out:
"His Honour: I would expect that an application be brought to deal with the applicant and the third respondent for breach of those undertakings.
Mr. Martin: The difficulty with that, your Honour, is apart from the time of year, my instructing solicitors have not been (able) to get in touch with the solicitors for the applicant. My learned friend is here today because I was able to ring him last night.
His Honour: Yes.
Mr. Martin: As I understand it, he is uninstructed and, quite naturally, he wonrk be able to do very much at all today. To bring an application to deal with the breach of the undertaking is something which is within the contemplation of my clients. However, they are most concerned at the moment that that material be totally deleted as a matter of some urgency. "
Mr. O'Regan submitted that it was wrong to assert that Jiejing brought the contempt application because it was instigated by me.
What counsel for Jiejing then said indicates that, as at 27 December last, Jiejing had in contemplation bringing an application in respect of the breach of the undertaking that it has now brought but, because of concern that the material should be removed from the Stokes and Panettiere computer as a matter of urgency and because Jiejing's legal representatives had been unable to make any contact with either Mr. Hackett or Mr. McCullagh, Jiejing brought the application before me on 27 December last seeking the additional order, which I declined to make, as the quickest means of achieving its object.
Mr. O'Regan also submitted, in answer to the submissions on behalf of Mr. McCullagh that proceedings for contempt were inappropriate when the contempt, if it had occurred, was promptly purged, that such a notion was "subversive of the importance of adherence to undertakings given in court and we would submit that it really has nothing to do with whether this application should be proceeded with or not".
In order to make good the first objection, it is not clear if it is necessary for Mr. McCullagh to establish as a
fact that I did in truth instigate the contempt proceedings
(and so, as a necessary consequence, should not participate further in them) or if instead, it must be established that a fair minded observer would be concerned at my hearing the contempt application in view of what I said on 27 December
l,..
about the bringing of contempt proceedings. The former
i-
appears to be the view taken by Gibbs J in Stollerv (op cit) I 1 : at page 527, Stephen J agreeing; the latter appears to be the
1 .
16 l
view of Barwick CJ at page 519, McTiernan J agreeing. Menzies J seems to favour the former rather than the latter view: see pages 520-521 and 525. But even if the correct test is the latter, i.e., the one that puts the lesser onus on Mr. McCullagh, I think the application for disqualification on the first ground relied on fails.
Having regard to the comments by counsel for Jiejing on 27 December in which he indicated that Jiejing then had in mind bringing an application for breach of the undertaking given on 23 December, 1991, but that, above all else, they wanted the material in question to be totally removed from the Stokes and Panettiere computer as a matter of urgency, I do not think it can be inferred that Jiejing would not have brought this application but for the expectation I said I had on 27 December that such proceedings would be brought.
Nor do I think that any fair minded observer, who
must be assumed to have been aware of all of what was said in
Court on 27 December, 1991, would conclude that I had instigated a contempt proceeding which Jiejing would never otherwise have brought and that because I would in consequence
be both accuser and judge, I should disqualify myself.As to the second point, the principles are well- established: so far as apparent bias by predetermination is concerned, the test is whether fair minded people might reasonably apprehend or suspect that the Tribunal has pre- judged the case: See B v Watson: Ex parte Armstronq (1976)
136 C.L.R. 248 at 262-3; Vakauta v Kellv (1989) 167 C.L.R. 568 at 584. See also Livesev v The New South Wales Bar Association (1983) 151 C.L.R. 288 at 293-4 where the test is put a little differently.
The following passages in the transcript of proceedings on 27 December were relied on by Mr. Sullivan in support of this ground:
"His Honour: Yes, all right. Well, Mr Martin, I'm not inclined to make the order you seek. I think the wording of the undertaking upon which the matter was adjourned on Monday last is quite clear. On the material that you've placed before me, it appears that the first, second, fourth and fifth respondents are in breach - are in clear breach of their undertaking to delete the material.
Mr. Martin: The applicant and the third respondent.
His Honour: I am sorry?
Mr. Martin: The applicant and the third respondent. His Honour: The applicant and the third respondent, I am sorry. Mr Doyle's clients - the applicant and the third respondent are in clear breach of the
undertaking which they gave to delete the copies
recorded on the hard disk of the material that theyundertook to copy onto floppy disks and preserve in a sealed envelope. It also appears that the solicitor involved - the solicitor for the applicant and third respondent, M r Hackett, is a party, on the face of it, a party to that breach of undertaking. I would expect that, in due course, you would bring an application against all those involved, including the solicitor, for breach of this undertaking. And if the undertaking continues - if the breach of the undertaking, assuming there is a breach as appears to be the case on the material before me, if that prima facie breach continues, well, then, that would
go to aggravate the misconduct: of those involved,
including the solicitor, in the breach of the
undertaking.
Mr. Martin: Yes, your Honour.His Honour: I would assume that you would draw to the attention of the solicitor, and if he is not able to be contacted, draw promptly to the attention of the applicant and third respondent personally, the gravity of what the material laid before me indicates. (pages 6 and 7)
His Honour: Yes. Well, look, in the meantime an undertaking given to the court appears on the material before me to be quite cavalierly breached. I say again, I don't regard the undertakings as - in the form they were put before me - as being couched in technical language. There was not one suggestion, when the matter was brought before me last, that I should regard the undertaking as so framed - it's in simple English - and the intent of the undertaking is pellucidly clear to me, not merely from the wording of the paragraph that deals with the obligation to delete, but from what precedes it, which provides a procedure for preserving the material you're concerned about on floppy disks is to be sealed up.
The deletion obligation follows on from that limited preservation procedure.
Mr. Martin: Yes.
His Honour: There can be no possible doubt, I wouldn't have thought on - as I see things at the moment. Now, the undertaking, on the face of it, had already been breached. As I say, if the prima facie breach continues that will go to aggravate that breach by all involved, including the
the situation and I would expect to see an solicitor. It's really in their hands to rectify application for - from your side before the court early in the new year. When I say 'early in the new year, ' I mean early in the new law year." (pages 7 and 8)
Mr. Sullivan submitted that, even if what Ms. Warren had to say in her affidavit was correct, it would be submitted on behalf of Mr. McCullagh that no breach of the undertaking occurred, given the meaning that should be given to the expression "delete" in the undertaking. He went on to submit
I
that the strength of the comments I made about there being a clear breach because of the meaning I then ascribed to the term "delete" are such that there would be no point in his making submissions on that issue, or at least that a reasonable observer would think that there would be no point in making any such submissions.
In my view, a fair minded observer with knowledge of all relevant matters would not conclude that I had so prejudged the issue of the construction of the undertaking and, in particular, of the requirement in the undertaking to delete certain material, that any submissions that may be made on behalf of Mr. McCullagh to the contrary will not receive a fair hearing and will not be capable of leading me to a different conclusion on that issue. I think that a fair minded observer possessed of all relevant knowledge, would conclude that, while what I said on 27 December on this issue may have been expressed in strong language, my comments were clearly provisional only, being repeatedly said by me to
material coming from one party only and being made in the reflect how I then saw things, and being based upon the absence of any submissions on behalf of CCOM or Messrs. Thomas or Garnham. I do not think that a fair minded observer would be concerned that the comments I then made, not on an issue of fact but rather on the question of the meaning of an expression in the undertaking, and made in the course of a short ex parte hearing brought on as a matter of urgency, showed such a commitment to a particular view of the
20 I
expression in question that argument to the contrary would be useless and that I would not be open to persuasion to take a different view, if the matter should later come to be heard before me in contested proceedings.
I also think that the hypothetical impartial observer should be taken to be aware of the fact that Mr. McCullagh's partner, Mr. Hackett, and their lay clients, CCOM and Messrs. Thomas and Garnham, declined to support Mr. McCullagh's application and that, in consequence, there will be the appearance as well as the actuality of justice capable of being offered to Mr. McCullagh if I proceed to hear the contempt application.
Mr. Sullivan could advance no convincing reason why it was not appropriate to have regard to the attitude of Mr. McCullaghfs partner and his lay clients to his application for my disqualification. He submitted that the test to be applied is an objective one, of the fair minded observer who is not
versed in law and does not know anything about the' characteristics of the judge, but who if faced only with the transcript of proceedings on 27 December, the letter written to CCOM's solicitors by Jiejing's solicitors on 29 January and the fact that any contempt (if there were one) was purged, a matter that was conceded in the court proceedings on 6 March, would reasonably conclude that the judge had predetermined the issue. But, if ME, Sullivan is correct. in submitting that: knowledge of events which took place outside the court on 29 January, a month after the proceedings of 27 December, and of
i
events which took place in court on a subsequent occasion, on I I I : 6 March, can be imputed to the fair minded observer, it is I : I . difficult to see why knowledge of other events which also took
I - I:
place in court on 6 March, namely, the statements then made on L behalf of Mr. Hackett, CCOM and Messrs. Thomas and Garnham I that they did not wish to join in Mr. McCullagh's application 1- for me to disqualify myself, should not also be imputed to the !., L _$
fair minded observer. When invited to, Mr. Sullivan was I !
unable to offer any explanation for discriminating between the i I i two sorts of events that occurred in Court on 6 March, other I than to assert that the attitude of CCOM and these three
! ! ., gentlemen was irrelevant because the test was an objective , , one. I think that, assuming that the test is an objective ).' one, there is no reason why there should not be imputed to the .%
, .
fair minded observer knowledge of any relevant happening in
court, including a statement made to the court indicating the L ' attitude of certain of the parties to a particular l
i " I application, whether it tell in favour of or tell against the : , .- proposition that such an observer would apprehend bias on the part of the judge. Moreover, to say that the attitude of Mr. McCullagh's partner and their clients (the other Respondents
I
I r , to the contempt application) is irrelevant is inconsistent with the way the Full High Court in Livesev formulated the t test, namely: "a judge should not sit to hear a case if in all the circumstances the uarties or the public might
f
l I i
2 2 l
entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it." (op cit at pages 293-4). (emphasis'
added )
No attempt was made to explain why Mr. McCullagh took the attitude he did, while his partner, Mr. Hackett, declined to join in his application, other than to suggest that it was Mr. McCullagh who had most to do with the matter. But the evidence before me on 27 December showed that while it was Mr. McCullagh who operated the computer on the evening of 23 December and did the copying required by the undertaking given earlier that day, it was Mr. Hackett who refused on 24 December to comply with Jiejing's demand to overwrite the source code information that then remained on the Stokes and Panettiere hard disk. Nor was there any attempt to explain why the attitude of CCOM and Messrs. Thomas and Garnham differed from that of Mr. McCullagh.
Moreover, CCOM and Messrs. Hackett, Thomas and Garnham have exactly the same interest as Mr. l-1cCullagh in having the contempt application heard by a judge who is not also their accuser and who has not a closed mind on what is the true meaning of the words of the undertaking.
In the absence of any contrary explanation, their
refusal to support Mr. McCullagh's application leads, I think,
to the inference that they do not share Mr. McCullaghrs fears.
23 I
That four out of the five persons with this same interest and who are all involved in the same solicitor-client relationship do not entertain an apprehension that I am biased against them must substantially weaken, in the mind of a fair minded observer, the weight that should be given to Hr. McCullagh's concerns about what I said on 27 December last and about which he alone complains.
I therefore do not propose to disqualify myself from hearing the application in respect of the alleged breach of the undertaking by CCOM, Mr. McCullagh, Mr. Hackett and Messrs. Thomas and Garnham.
I certify that this and the 22
preceding pages are a true copy
of the reasons for judgment
herein of the Honourable Mr.Justice Drummond.
Associate: dud-i-ij &LA/ Date: 20 March, 1992
0
0
0