Christian Youth Camps Ltd v Cobaw Community Health Services Ltd

[2014] VSCA 113

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2010 0143
CHRISTIAN YOUTH CAMPS LTD (ACN 095 681 342)	First Appellant
and
MARK ROWE	Second Appellant
v
COBAW COMMUNITY HEALTH SERVICES LTD (ACN 136 366 722)	First Respondent
and
VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION	Second Respondent
and
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA (No 3)	Intervener

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JUDGES:	MAXWELL ACJ, NEAVE and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 December 2012
DATE OF ORDERS:	14 December 2012
DATE OF REASONS:	6 June 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 113

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COURTS AND JUDGES – Apprehended bias – Application by International Commission of Jurists (ICJ) for leave to intervene in appeal as amicus curiae – Governing body of ICJ (Vic) included judges of Supreme Court of Victoria – Whether participation of ICJ in appeal would create reasonable apprehension of bias – No basis for apprehension – Livesey v New South Wales Bar Association (1983) 151 CLR 288 applied – R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) [2000] 1 AC 119 distinguished – Leave to intervene granted.

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APPEARANCES:	Counsel	Solicitors
For the 1st and 2nd Appellants	Mr G Cox	McCracken & McCracken
For the 1st Respondent	Mr E Nekvapil	King & Wood Mallesons
For the Amicus Curiae (International Commission of Jurists)	Ms F McLeod SC with Mr R Wilson	Ashurst

MAXWELL ACJ
NEAVE JA
REDLICH JA:

1. On 14 December 2012, the Court granted leave to the International Commission of Jurists (‘ICJ’) to intervene in this proceeding as amicus curiae.  The leave was limited to the filing of written submissions on matters not covered by the submissions of the parties.  A like order was made in relation to the Ambrose Centre for Religious Liberty.

1. The first applicant, Christian Youth Camps Ltd (‘CYC’), had objected to the participation of the ICJ in the proceeding on the ground that it would create a reasonable apprehension of bias on the part of the bench.  The basis of the objection was that the governing body of the Victorian branch of the ICJ included members of the Supreme Court (though not of the bench which would hear this proceeding).  It was said that this circumstance might give rise to a suspicion that the members of the appeal bench might not bring an impartial mind to the resolution of the questions before the Court. 

1. In granting leave, the Court overruled that objection.  We said that our reasons would be published in due course.  These are those reasons.  

1. We were not persuaded that there was any reasonable basis for an apprehension of bias.  As Nettle JA observed recently in Shaw v ANZ Executors & Trustee Company Limited,[1] (a case in which his Honour was asked to recuse himself on the ground of apprehended bias):

The test of apprehended bias was recently reconsidered by the High Court in British American Tobacco Australia Services Limited v Laurie. As the Court said, the test remains, as was stated in Livesey v New South Wales Bar Association, whether:

in all the circumstances 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 question involved.

For that purpose, what is reasonable depends on what a reasonable observer or fair-minded observer with a ‘fair understanding of all of the relevant circumstances’ would think to be the case.

[1]Unreported, Supreme Court of Victoria, Nettle JA, 10 May 2013 [3]–[4] (citations omitted). 

1. In the present case, the putative fair-minded observer would be taken to understand at least the following relevant circumstances.  First, the ICJ is a body which works, nationally and internationally, to defend the rule of law and human rights.  It is, therefore, unsurprising that many judges in Victoria, and throughout Australia, are members of the ICJ.  After all, the proper discharge of the judicial function, impartially and independently, is emblematic of the rule of law.  In that sense, judicial membership of the ICJ should be seen as an explicit reaffirmation of the importance of maintaining impartiality. 

1. Secondly, although two of our Trial Division colleagues were at the relevant time President and Vice-President respectively of the Victorian branch of the ICJ, none of the members of the present bench had then (or has now) any role in planning, organising or directing the activities of that branch.  Nor was it suggested that the Victorian branch was then engaged in any activity having any connection with the issues in this proceeding.

1. Thirdly, and most importantly, neither the Victorian branch of ICJ nor the international body itself (which was the applicant for intervention) had any partisan interest in the proceeding.  On the contrary, as the ICJ submission made clear, the basis of the application was that the ICJ  had

expertise in the area of international human rights and … that the Court would be assisted by its submissions in arriving at a correct understanding of the human rights that are engaged in this case and the manner in which they are reconciled under international law and in comparative jurisprudence.

If leave were granted, the submission would

assist the Court by elucidating:

a.the existing body of international and comparative domestic law that exists in relation to conflicts of rights;  and

b.the case law on the resolution of conflicts between the right to be free from discrimination and the right to manifest one’s religious beliefs in particular.

1. To that end, the ICJ submission provided a detailed survey and analysis of relevant international jurisprudence, and expressed the view that the approach adopted by the Tribunal in dealing with the competing rights was consistent with the approach to like questions adopted in other jurisdictions.  That was a proper submission for an amicus to make, as the informed observer would have appreciated. 

1. Whether the view expressed in the ICJ submission was correct was, of course, for the Court to decide.  It would have been readily apparent to the informed observer that the submission would be given only such weight as it deserved, based on the cogency of the analysis of international law.  There was no risk, in our view, of the observer suspecting that judicial affiliation with the ICJ might result in the Court giving the submission inappropriate weight.

1. The submission advanced by CYC in opposition to the ICJ application relied on the decision of the House of Lords in R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2).[2]  We were not persuaded, however, that there was any parallel between that case and this.  On the contrary, the circumstances were strikingly different.  That case concerned the participation by Lord Hoffman in the hearing of a challenge to the validity of an arrest warrant, issued for the purposes of extraditing Senator Pinochet.  Amnesty International had participated in that hearing as an intervener.  It emerged subsequently that Lord Hoffman was the chairperson of Amnesty International Charity Limited, a body established to carry out the work of Amnesty International.

   [2][2000] 1 AC 119.

1. The facts of the case were rightly described as exceptional.[3]  The point of critical importance was that Amnesty International had campaigned actively for the punishment of those — including Senator Pinochet — who were responsible for human rights abuses in Chile.  Moreover, Amnesty had intervened in the proceeding expressly for the purpose of advancing a partisan position, namely, that Senator Pinochet had no immunity from prosecution and could therefore be extradited to face prosecution.  As a result, the House of Lords held, Lord Hoffman (through his association with Amnesty International) had an interest in establishing an outcome adverse to Senator Pinochet.  His Lordship was, therefore, automatically disqualified.  No question of apprehended bias arose.[4]

   [3]Ibid 136.

   [4]Ibid 135–6.

1. Finally, CYC had contended that the ICJ had failed to demonstrate that its intervention was necessary or desirable for the proper disposal of the appeal.  That submission was not persuasive either.  The application to intervene was made at an early stage of proceedings and, given the breadth and complexity of the issues raised on the appeal, it was not possible to determine with certainty whether and to what extent the intervention of the ICJ would be of additional assistance.  Nor did we think it an appropriate use of the Court’s time to fully investigate that question.  We were quite satisfied that the ICJ had the specialist expertise which it asserted, and that the Court was likely to benefit from receiving the ICJ’s submission on international human rights law.  In the event, that expectation was fully borne out.

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