Clarke v Premier Youthworks Pty Ltd
[2018] FCCA 2938
•1 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLARKE v PREMIER YOUTHWORKS PTY LTD | [2018] FCCA 2938 |
| Catchwords: INDUSTRIAL LAW – Recusal Application – the Applicant is a self-represented lawyer and community services youth worker litigant who seeks relief under the Fair Work Act in his primary Application that arises out of his dismissal by the Respondent as a casual residential care worker – recusal application based on questions by the presiding Judge to the Applicant during the trial – delay of approximately two months after conclusion of part-heard trial in bringing the recusal Application – no factual or legal bases for any of the grounds claimed by the self-represented Application – costs of the Respondent reserved. |
| Legislation: Fair Work Act 2009 (Cth) |
| Cases cited: Antoun v The Queen (2006) ALJR 497; (2006) 224 ALR 51 British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 Smits v Roach (2006) 227 CLR 423 M. Aronson, M. Groves and G. Weeks, Judicial Review of Administrative Action and Government Liability (Sixth Edition) (Sydney: Lawbook Company, 2017) |
| Applicant: | RYAN CLARKE |
| Respondent: | PREMIER YOUTHWORKS PTY LTD |
| File Number: | CAG 27 of 2018 |
| Judgment of: | Judge Neville |
| Hearing date: | 20 September 2018 |
| Date of Last Submission: | 2 October 2018 |
| Delivered at: | Canberra |
| Delivered on: | 1 November 2018 |
REPRESENTATION
| Counsel for the Applicant: |
| Solicitors for the Applicant: | Self-represented |
| Counsel for the Respondent: |
| Solicitors for the Respondent: | Cantle Carmichael Legal |
ORDERS
The Applicant’s Application in a Case, filed 22nd August 2018, be dismissed.
The Respondent’s costs in relation to the Applicant’s recusal Application be reserved.
The parties are to file an agreed Minute of Orders within 14 days of the date of these Orders, being by 15 November 2018, providing for the filing of material in the principal proceedings, effectively amending the Orders of this Court dated 15 June 2018.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 27 of 2018
| RYAN CLARKE |
Applicant
And
| PREMIER YOUTHWORKS PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
The self-represented Applicant is a young lawyer. He has held a practising certificate though he does not currently do so, nor did he during the primary hearing of his Application for relief under the Fair Work Act 2009 against the Respondent arising out of his dismissal as a casual youth worker. The primary hearing took place between 13th and 15th June 2018.
On 22nd August 2018, the Applicant filed an Application in a Case, in which he sought the following Orders:
1. That the docket judge in this matter, Judge Neville, be disqualified from these proceedings on the basis of actual bias in the form of prejudgment.
2. In the alternative to the first order sought, that His Honour be disqualified from these proceedings on the basis of apprehended bias in the form of prejudgment.
3. That any further procedural matters be dealt with only after the determination of this application.
That Application was heard on 20th September 2018. It will be immediately apparent that there was a delay of approximately 2 months between the conclusion of the hearing and the filing of the recusal Application.
In my view, on the authority of Smits v Roach, regarding the critical importance of bringing a recusal Application promptly, the 2 month delay readily establishes that the Applicant has waived the right to make and to press such an Application. As a qualified lawyer, a Court must be able reasonably to expect that those admitted to practice and who conduct matters before it are properly conversant with basic legal principle. In my view, principles relating to the serious step of making a recusal Application come within basic principles that are, or should be, well-known to lawyers admitted to practice, no matter their level of experience.
In accordance with the principles regarding waiver, and subject to what is said later in these reasons, the delay in bringing the Application is sufficient to require that it be dismissed. Also for the reasons that follow, the recusal Application is not made out both as a matter of fact, and as a matter of law.
Further to these observations, and noting the sensitivity of a recusal Application, I note the following simply by way of cautionary observation.
At the end of hearing it, the Applicant indicated that the Court should consider a recent decision of the Queensland Supreme Court, in which, according to press reports, a Judge (Bond J) had recused himself. No details of the case briefly referred to were provided. Then ensued the following exchange between the Applicant and the Bench (emphasis added):[1]
[1] Transcript (20th September 2018) pp.34 – 35.
MR CLARKE: There was – the final point that I wanted to make was Mr Puxty keeps going back to this one comment, it was only one comment. It wasn’t. It was a comment in a context, the immediate context being that which was already discussed. But I would raise this with your Honour – a recent case. I don’t have the citation with me. I apologise. The judgment of Bond J in the Supreme Court of Queensland, recently recused himself in relation to an apprehended bias application on the basis of making the comment that he thought ‑ ‑ ‑
HIS HONOUR: But that was after he had – no, sorry. That was after he had made adverse findings about certain witnesses.
MR CLARKE: With respect, my understanding was that he made a comment that the evidence was – bear with me for one moment – “implausible”. So one comment in relation to credibility.
HIS HONOUR: Well ‑ ‑ ‑
MR CLARKE: There’s ‑ ‑ ‑
HIS HONOUR: ‑ ‑ ‑ you need to provide a note of one page to the court if you’re going to rely upon that case.
MR CLARKE: As I said, it’s a recent case. I’m not familiar with it in any great detail, but certainly ‑ ‑ ‑
HIS HONOUR: Well ‑ ‑ ‑
MR CLARKE: ‑ ‑ ‑ the understanding I have is that’s what ‑ ‑ ‑
HIS HONOUR: Well, could I suggest that it’s very dangerous to be making comments about a case that you’re not fully au fait with. I just simply make it as an observation. If you’re wanting the court to have some regard to it, you need to give proper notice both to the court and to Mr Puxty if you intend to rely upon it. Do you intend to rely upon it? You seem to be wanting to rely upon it.
MR CLARKE: I think it’s something that the court – yes, I think it’s something the court should take into consideration. If, on this occasion, one comment can – or very few comments can indeed found an apprehension of bias ‑ ‑ ‑
HIS HONOUR: But have you read the case?
MR CLARKE: No.
HIS HONOUR: Again ‑ ‑ ‑
MR CLARKE: I’ve said that my understanding is very ‑ ‑ ‑
HIS HONOUR: ‑ ‑ ‑ it’s meant ‑ ‑ ‑
MR CLARKE: ‑ ‑ ‑ limited and it’s a recent decision.
HIS HONOUR: It’s meant to be a counsel to you of the greatest caution of the danger of citing matters to a court that you have not read. You could get yourself into serious trouble, Mr Clarke. I am just ‑ ‑ ‑
MR CLARKE: I haven’t ‑ ‑ ‑
HIS HONOUR: ‑ ‑ ‑ offering you that free advice.
MR CLARKE: I mean, with the greatest respect, I haven’t read any of the cases I have cited completely, so if that’s going to mean further trouble, I think it’s worth at least being honest. I’m reading the parts that I think are important.
HIS HONOUR: How do you know what parts are important if you haven’t read the whole case?
MR CLARKE: You start at the beginning and generally the joint judgment and the most important judgements are the one that lead and then other things can be determined through general research. And then you can point yourself – or even through commentaries and that sort of thing. You can point yourself to specific paragraphs and look around from that. I mean, to read some of these things in full, they’re sometimes hundreds and hundreds of pages. So I’m only raising that case – that judgment just as something to possibly be aware of to bear in mind. A recent judgment, as I said. It’s not something – I know in ‑ ‑ ‑
HIS HONOUR: No, sorry ‑ ‑ ‑
MR CLARKE: ‑ ‑ ‑ a great deal of detail.
HIS HONOUR: ‑ ‑ ‑ you either rely upon it or you don’t.
MR CLARKE: I’m sorry, I believe I’ve said I think it’s something the court should take into consideration. But I don’t have the citation.
HIS HONOUR: Unless you provide a one-page note with a full citation by next Tuesday noon, the court will not have regard to that decision.
In my view, the exchange needs no comment. The “note” from the Applicant was later provided. It is set out later in these reasons. Relevantly, it only provided the name and citation of the case. Contrary to what had been requested and directed, it provided no comment or observation regarding its applicability or relevance to the current matter before the Court.
Procedural Matters
It is apposite to note two procedural matters.
First, as will be seen later in these reasons, the Applicant’s supporting Affidavit (filed 2nd August 2018) contained, as a matter of form and of substance, the factual grounds of the recusal Application as well as detailed written submissions. No formal point was taken by the Respondent, or by the Court, to this unusual step of conflating or at least providing the evidence and submissions in the same document (noting that, as a matter of practice, submissions are never provided in an Affidavit).
Secondly, the Applicant sought access to the audio recording of the principal proceedings. In the usual course this would be provided to the Registry who would make it available to the Applicant in the Registry. As it happened, the transcript provider to the Court (Auscript), inadvertently provided the Applicant with a copy of the actual recordings. Apart from this procedural breach of practice – of which I was unaware and for which Auscript later apologised – nothing much turns on it, save that the extracts or “transcript” used by the Applicant is his own typing from the recording he was provided with, rather than the official transcript. In the course of these reasons I will refer to both.
The Recusal Application
As set out in pars.5 – 8 of his Affidavit, the Applicant’s grounds for recusal were as follows:
5) On the second day of trial in these proceedings, being the 14th of June 2018, an extended exchange occurred between essentially only His Honour and the Applicant wherein the Applicant was directed to provide further oral testimony.
6) This exchange appeared to be a further examination of the Applicant by His Honour subsequent to the conclusion of cross-examination by Counsel for the Respondent on the preceding day.
7) The opening remark and concluding exchange of this examination on the 14th of June 2018 are set out as follows:
His Honour: Um, I did just have, um, three related further questions for Mr Clarke, um, I'm content for you to stay there and give, give your evidence but you should take it that, um, you remain on the oath that you took yesterday.
…
His Honour: Um, why wouldn't you go and get legal advice as to your legal position and what would be, um, either a prudent or a protective course for you?
Clarke: In hindsight that would have been the prudent thing to do. I suppose, up until the incident or, or just before the incident on 30 November, when I started to put my concerns in relation to the asbestos in writing, I thought that I could just wait until that six month period, um, in terms of the regular and systematic work had been reached.
His Honour: And then what?
Clarke: And then I realised that I'd have unfair dismissal protections.
His Honour: Ah. Well these were questions that Mr Darans put to you yesterday. And I thought that your evidence was a little bit different.
Clarke: How so?
His Honour: Ah, well [laughing] sorry, um, it's your case.
Clarke: Yes.
His Honour: I'm going to end up having to rule on certain things.
Clarke: Yes.
His Honour: Um, in the light of your evidence, but still. Sorry Mr Darans did you wish to.
Darans: No, not [inaudible].
His Honour: Ask anything further?
Clarke: Um, to be clear, that wasn't something that I realised straight away.
His Honour: Sorry, what?
Clarke: That after six months you get unfair dismissal protection. That was something I realised much later, when I started to think things were going very wrong, around the 22nd of November, towards the end of November.
His Honour: Thank you. So, um, witnesses.
8) The above extract clearly indicates the following:
(a) That His Honour was of the view that there was a notable inconsistency or discrepancy between the testimony given by the Applicant on the 14th of June 2018 and that given by him on the 13th of June 2018;
(b) That the Applicant sought to be given an opportunity to address and respond to this view held and expressed by His Honour;
(c) That neither the basis for this view nor an opportunity to respond directly to it were afforded to the Applicant by His Honour;
(d) That His Honour intended to rule in accordance with this view; and
(e) That His Honour then moved proceedings along.
It is critically important to set out the full exchanges with the Applicant from the official Transcript from 14th June 2018, which provide not only the context of the discussion and questions put to the Applicant, but also the further and significant detail surrounding them which is not apparent from the Applicant’s Affidavit and the selective excerpts it contains. Thus:[2]
[2] See Transcript (14th June 2018) pp.129 – 132.
HIS HONOUR: I did just have three related further questions for Mr Clarke. I’m content for you to stay there and give your evidence, but you should take it that you remain on the oath that you took yesterday. Right?
MR CLARKE: Yes, your Honour.
HIS HONOUR: As I said, they’re three related questions. Did you ever get any independent legal advice, firstly regarding your concerns regarding the July 2016 contract? Your evidence, as I recall, yesterday was to the effect that some little time after signing it and, you know, various things happened or doubts started to creep in, however it might be described, that you started to make some general – you started to do some of your own general research about contracts, workplace rights, etc. Correct? That was your evidence yesterday?
MR CLARKE: It was ‑ ‑ ‑
HIS HONOUR: In general terms?
MR CLARKE: In very general terms and very limited research. There was nothing ‑ ‑ ‑
HIS HONOUR: Yes. No, no. It’s – so my question again, I repeat. In relation to these concerns, whatever else, that you had regarding the contract, such as to its legality, enforceability, whatever – did you ever get any or go and get independent legal advice?
MR CLARKE: No, your Honour.
HIS HONOUR: Right. Related to that, in relation to the representations that you say Ms Fraser gave to you in relation to you getting the full time contract or a foreshadowed permanent position, did you ever get any independent legal advice in relation to those matters?
MR CLARKE: No, your Honour.
HIS HONOUR: And then in relation to the various meetings that you were, however it’s described, invited to attend/directed to attend, and the various concerns that you articulated about attending any of those meetings, did you ever get any independent legal advice in relation to those matters?
MR CLARKE: Nothing – nothing formal, your Honour ‑ ‑ ‑
HIS HONOUR: No, I didn’t ask whether it was formal, informal, whatever.
MR CLARKE: I recall – yes. I recall at that time I was having conversations with union representatives ‑ ‑ ‑
HIS HONOUR: Sorry, it’s – did you say union representatives?
MR CLARKE: With union representatives ‑ ‑ ‑
HIS HONOUR: Right.
MR CLARKE: ‑ ‑ ‑ yes, of the ASU. I’m not sure if that was when it was – initially my discussions with them were more about what’s happening and whether it sounded right, and when the requests for this probationary review meeting started to come through, I had serious doubts, as I expressed yesterday, and I believe there could have been comments from those individuals that, you know, it would be better to go than to not go.
HIS HONOUR: That was the advice that you got?
MR CLARKE: There could have been advice to that effect, but I don’t – I honestly don’t recall.
HIS HONOUR: But the reality is, though, that you never went. Correct?
MR CLARKE: Pardon?
HIS HONOUR: But the reality is that you never went.
MR CLARKE: Yes, I never went to the probationary review meeting.
HIS HONOUR: So in relation to each of those three areas – the contract, the so-called representation – these are just my shorthand terms – and thirdly the meetings – why did you never get any, or go and get any, separate independent advice?
MR CLARKE: Up until the end of August when Ms Fraser went on leave, I was simply reliant on her honesty and the respondent’s honesty – honesty to provide a contract.
HIS HONOUR: But your evidence yesterday was that really by the end of August you had no trust in her.
MR CLARKE: Yes, by that stage there was no trust left. After 30 – 31 August when she went on leave, a new supervisor came in and after, I think, a week or two weeks, I had been – it had been indicated, look, this will be your supervisor now, and that’s when I started to say to this supervisor, look, this is what I’ve been told. And I had also approached HR and said, look, this is what I’ve been told, can you please take it to the supervisor next up – so from Ms Fraser to Ms Richards. And I got no response from HR and Ms Morrison – that’s when I approached Ms Morrison, the supervisor that came in after 31 October – August – and when I started to speak with her, initially there was no response, and when I asked her again I recall that’s when she started asking me to attend a supervision meeting. So from that stage I realised it was very, very unlikely that the respondent was ever going to provide me a full-time contract. Particularly in light of the numerous text messages I had sent to Ms Fraser, saying, can you please tell me when I’m going to get this contract? You’ve told me I’m going to get it when the EA comes. None of that was ever replied to in writing, so to me that seemed to be a very almost deliberate pattern of not responding to what was happening with this contract in writing, at any stage from anyone.
HIS HONOUR: It’s almost a rhetorical question, but in circumstances where you say you had doubts about the legality, the enforceability, whatever else, of the July contract, there you had no trust in your then-supervisor, Ms Fraser ‑ ‑ ‑
MR CLARKE: Only in relation to the provision of the contract.
HIS HONOUR: Yes. Well, we’ve canvassed that, you know, about how you distinguish or you compartmentalise trust in one person for one thing but everything else is hunky-dory, but we will leave that to one side. Your evidence also yesterday was that you had no trust, at some stage after the end of August, in the management or the hierarchy above the supervisors. Correct?
MR CLARKE: When your Honour says “no trust”, I wouldn’t – I wouldn’t use those words. I didn’t believe that they were ever going to give me a full-time contract, and I thought they were being very misleading in relation to safety – serious safety concerns.
HIS HONOUR: Yes. Understand that. Well, what’s the difference between lack of trust and misleading? I mean, at the very least, it wasn’t going well?
MR CLARKE: In terms of the actual practical doing the role, how to – how to respond to children when they’re displaying ‑ ‑ ‑
HIS HONOUR: No, no, no. Please don’t – I don’t need, as it were in other submissions with a commentary. Please answer the question. These are circumstances – you didn’t regard the contract from July effectively as binding on you, and that was in part because you were anticipating getting a full-time contract, even though you didn’t trust Ms Fraser, to greater or lesser degrees – compartmentalised or not. You believed management to be misleading and you were distrustful of them. Why wouldn’t you go and get legal advice as to your legal position and what would be either a prudent or a protective course for you?
MR CLARKE: In hindsight, that would have been the prudent thing to do. I suppose up until the incident, or just before the incident on 30 November when I started to put my concerns in relation to the asbestos in writing, I thought that I could just wait until that six-month period – in terms of the regular and systematic work – had been reached.
HIS HONOUR: And then what?
MR CLARKE: And then I realised that I had unfair dismissal protections.
HIS HONOUR: Well, these were questions that Mr Darams put to you yesterday, and I thought your evidence was a little bit different.
MR CLARKE: How so?
HIS HONOUR: Sorry. It’s your case. I’m going to end up having to rule on certain things in the light of your evidence, but still. And sorry, Mr Darams, did you wish to ‑ ‑ ‑
MR DARAMS: No, not right now.
MR CLARKE: To be – to be clear, that wasn’t something I realised straight away.
HIS HONOUR: Sorry, what?
MR CLARKE: That after six months you get unfair dismissal protection. That was something I realised much later when I started to think things were going very wrong, around 22 November – towards the end of November.
HIS HONOUR: Thank you. So, witnesses.
In my view, when viewed in the full context, and that Mr Clarke remained under cross-examination, each and all of the questions put to him by the Bench were simply seeking to clarify the Applicant’s position in relation to certain matters and to elucidate from him comment on them.
Compared to this full extract from the official Transcript, the Applicant’s evidence regarding the exchanges with the Bench on the second morning of the trial, as set out in his Affidavit, is both selective and incomplete. The Applicant’s Affidavit gives a much more attenuated, indeed selective, (a) setting/context, and (b) series of questions and responses.
In his submissions, noted below, the Applicant’s focus was very much on a single question or observation regarding what I thought or perceived at the time, regarding a possible inconsistency in the Applicant’s evidence. He has consistently sought to highlight, or to argue, that there was no relevant inconsistency and takes this opportunity to do so. Whether there was or was not is not something that the Court has to make any ruling on in the context of a recusal Application. A trial Judge, also as noted below in accordance with authority, is more than permitted to make inquiry both to test evidence and to seek to clarify evidence given by a witness. In the complete context, set out in the official Transcript above, it is plain that all that was happening in the early part of the second day of the trial was an attempt to clarify, and to explore, certain aspects of the Applicant’s evidence. As this is the sole, factual basis “pleaded” by the Applicant, it must be concluded that there is no factual basis upon which the recusal Application can, or should, succeed.
Submissions by the Applicant/ The Applicant’s Evidence
As earlier noted, the Applicant filed an Affidavit alongside his Application in a Case on 22nd August 2018, which also contained his submissions. In full, that Affidavit provided as follows (internal citations omitted):
1) This Affidavit sets out the grounds upon which the accompanying Application is made.
2) Disqualification of a decision-maker on the basis of actual bias requires that it be established that the decision-maker's mind was closed to persuasion on an issue for determination. This requires an assessment of the decision-maker's state of mind as determined by his comments and conduct.
3) Disqualification on the basis of apprehended bias is a lower threshold and requires that it be established, on an objective standard that in the circumstances there was a reasonable appearance or fear that the decision-maker's mind may have been closed to persuasion on an issue for determination. The test has been stated as:
'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 question the judge is required to decide.'
4) To establish that bias was, or may reasonably have appeared to be, present in the form of prejudgment requires that it be shown that the:
'Decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.' and
'State of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.'
5) On the second day of trial in these proceedings, being the 14th of June 2018, an extended exchange occurred between essentially only His Honour and the Applicant wherein the Applicant was directed to provide further oral testimony.
6) This exchange appeared to be a further examination of the Applicant by His Honour subsequent to the conclusion of cross-examination by Counsel for the Respondent on the preceding day.
7) The opening remark and concluding exchange of this examination on the 14th of June 2018 are set out as follows:
His Honour: Um, I did just have, um, three related further questions for Mr Clarke, um, I'm content for you to stay there and give, give your evidence but you should take it that, um, you remain on the oath that you took yesterday.
…
His Honour: Um, why wouldn't you go and get legal advice as to your legal position and what would be, um, either a prudent or a protective course for you?
Clarke: In hindsight that would have been the prudent thing to do. I suppose, up until the incident or, or just before the incident on 30 November, when I started to put my concerns in relation to the asbestos in writing, I thought that I could just wait until that six month period, um, in terms of the regular and systematic work had been reached.
His Honour: And then what?
Clarke: And then I realised that I'd have unfair dismissal protections.
His Honour: Ah. Well these were questions that Mr Darans put to you yesterday. And I thought that your evidence was a little bit different.
Clarke: How so?
His Honour: Ah, well [laughing] sorry, um, it's your case.
Clarke: Yes.
His Honour: I'm going to end up having to rule on certain things.
Clarke: Yes.
His Honour: Um, in the light of your evidence, but still. Sorry Mr Darans did you wish to.
Darans: No, not [inaudible].
His Honour: Ask anything further?
Clarke: Um, to be clear, that wasn't something that I realised straight away.
His Honour: Sorry, what?
Clarke: That after six months you get unfair dismissal protection. That was something I realised much later, when I started to think things were going very wrong, around the 22nd of November, towards the end of November.
His Honour: Thank you. So, um, witnesses.
8) The above extract clearly indicates the following:
(a) That His Honour was of the view that there was a notable inconsistency or discrepancy between the testimony given by the Applicant on the 14th of June 2018 and that given by him on the 13th of June 2018;
(b) That the Applicant sought to be given an opportunity to address and respond to this view held and expressed by His Honour;
(c) That neither the basis for this view nor an opportunity to respond directly to it were afforded to the Applicant by His Honour;
(d) That His Honour intended to rule in accordance with this view; and
(e) That His Honour then moved proceedings along.
9) I cannot find any statement made anywhere in the evidence given by the Applicant on the record on the 13th of June 2018 that is irreconcilable or inconsistent, certainly not in any definitive sense, with the comments made by him as set out in the above extract.
10) Further, in relation to addressing any perceived inconsistency, I am still as yet uncertain as to precisely what inconsistency His Honour believes that he saw in relation to these remarks.
11) The above exchange, in the circumstances and context, can quite clearly be seen to establish that His Honour had prejudged and predetermined the credibility of Applicant's evidence and thus the outcome of the matter more broadly. His Honour's comments and conduct indicate that any argument and submissions advanced by the Applicant would be ineffectual in displacing this view.
12) His Honour's comments as set out above are not tentative remarks designed to allow the parties to address or respond to, but rather show a view firmly held that was not open to exploration or persuasion. Further, these remarks by His Honour were not qualified, before or after, by any other statement to indicate that they were merely tentative or anything other than a firm view as to the credibility of the Applicant's testimony.
13) In this respect His Honour's comments and conduct can be differentiated from cases where the decision-maker's remarks were held to be tentative, exploratory or qualified and not definitive.
14) In respect of addressing any perceived delay in the making of this application, there was in actuality minimal delay on the part of the Applicant in this regard. There was indeed a considerable delay in obtaining an audio copy of the record of proceedings from the transcript provider. The cause of this substantial delay on the part of the provider appears to be a matter best addressed by the provider.
15) Once received, the audio recordings were examined and, subsequent to this analysis and examination, the Applicant became aware of the principles of bias which were then further investigated and analysed. Pursuant to this further analysis, this application was prepared.
16) Accordingly, there has been no waiver by the Applicant of the right to raise bias or to ensure the accordance of a fair trial in line with the fundamental principles of natural justice.
The Applicant’s Outline of Submissions, filed 18th September 2018, was as follows:
1) The submissions set out in this document are advanced by the Applicant alongside and in addition to those set out in the Applicant’s Affidavit dated 21 August 2018 (‘the Affidavit’).
2) The Applicant intends to raise the cases of Vakauta and Watson for the purposes of comparing and analogising matters pertaining to comments made by decision-makers in those cases that are adverse to a party’s credibility with the nature and effect of the relevant comments made by His Honour in these proceedings.
3) The Applicant further intends to raise certain parts of the record of proceedings in order to illustrate that there appears to be no definitive inconsistency between the evidence given by the Applicant on the 13th of June 2018 and that set out in the Affidavit (as indicated in paragraph 9 of the Affidavit). The relevant audio recording extracts in relation to the 13th of June 2018 are set out as annexures to this document and are marked ‘E1’ to ‘E4’.
4) The Applicant further intends to raise three specific points in relation to any potential issue of waiver. These points are derived from the case law and are as follows:
a) That an application for recusal on the basis of bias is to be raised when practicable;
b) That such an application should not be made until all of the relevant facts have been gathered; and
c) That time for consideration, reflection and a weighing up of matters should be made prior to the making of such an application.
5) The Applicant further intends to put forward the submission that it is a fundamental principle that justice not only be done, but be seen to be done. And that this is essential in order to maintain the confidence of the public in the administration of justice and the institution of the court.
Following the Hearing, the Court ordered that the Applicant be at liberty to file an additional page of submissions, addressing any cases that he relied upon at the hearing, and in particular the Queensland Supreme Court case to which he briefly referred. The submissions filed by the Applicant on 25th September 2018 were as follows:
1) In the course of oral submissions on the 20th of September 2018 during the hearing of an application for recusal in this matter, the Applicant was directed by His Honour to prepare a note for the court in relation to relevant submissions.
2) The case referred to in respect of submissions that the view of a judge that particular evidence is not plausible can found a finding of apprehended bias is Parbery & Ors v QNI Metals Pty Ltd & Ors [2018] QSC 213.
3) The email correspondence referred to in respect of submissions as to how soon after the hearing of 13 to 15 June 2018 the Applicant began to seek access to the audio recordings of trial and the reasons given for seeking such access is annexed to this notation and marked ‘N1’.
The annexures to these submissions are not included here.
Submissions by the Respondent
The Respondent’s written submissions, filed 18th September 2018, were as follows (internal citations omitted):
Relevant Principles from Authorities
1) To establish actual bias:
a) the judge must be “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”; and
b) the test of actual bias in the form of pre-judgment requires an assessment of the state of mind of the judge in question.
2) To establish apprehended bias:
a) the test is objective and does not require an assessment of the state of mind of the judge;
b) in modern litigation, the expression of tentative views, which reflect a certain tendency of mind of the judge, are not on that count alone to be taken to indicate pre-judgment. Counsel are usually assisted by hearing the judges’ tentative opinions on matters in issue and being given an opportunity to deal with them; and
c) regard must be had for “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 question the judge is required to decide”.
3) In relation to the waiver of objection to bias, it is generally accepted that an application for disqualification should be made as soon as reasonably practicable after the party seeking disqualification becomes aware of the relevant facts. Otherwise the right to do so may be waived.
Analysis of the Transcript Evidence relied upon by the Applicant
4) For reference E1:
a) the transcript of evidence from 13 June 2018 indicates:
i) the applicant started making enquiries about “adverse action” “soon after 30 November 2016”; and
ii) the applicant started making enquiries about “unfair dismissal” after 30 November 2016;
b) the Applicant’s evidence of 14 June 2018 indicates:
i) by the time of “the incident or just before the incident on 30 November when I started to put my concerns in relations to the asbestos in writing”, he was aware of the six month minimum employment period before unfair dismissal;
ii) he was aware of “unfair dismissal protection” around 22 November 2016;
iii) the applicant was given an opportunity to give further evidence (which he accepted). He did not complain about His Honour “moving proceedings along”.
The Applicant’s evidence on 13 June 2018 about when he became aware of unfair dismissal laws is materially different to that given on 14 June 2018.
5) For reference E2:
a) the Applicant’s representation of the oral evidence is slightly different to the Auscript transcript – see attached extracts of the Auscript transcript.
b) the context in which the word “basically” is used by His Honour is not clear;
c) at the end of the exchange, the Applicant agrees with the matters put to him by His Honour.
6) For reference E3, the selected extracts reveal two occasions where His Honour directed the Applicant, as a witness, to answer questions to which the Applicant took no objection. Those questions were legitimately asked in cross examination by Counsel for the Respondent.
7) For reference E4, the extract relates to evidence being given by the Applicant as to how he characterised the probation review meeting. It was suggested by Counsel for the Respondent that the meeting was a “complete farce” to which the Applicant responded: “I wouldn’t go so far as to say a complete farce”. His Honour then sought to ascertain the Applicant’s opinion about the meeting by asking two open questions.
Respondent’s Position
8) None of the exchanges relied upon by the Applicant (E1 to E4) establishes actual bias on the part of His Honour. At a minimum, the analysis of the evidence submitted by the Applicant fails the third step in the three step process referenced by Hayne J in MIMA –v- Jia Legeng.
9) Having regard for the analysis of the transcript evidence set out above, as to the allegations of apprehended bias, the Respondent submits:
a) no fair minded lay observer would consider any of the cited exchanges validates a position that His Honour would not bring an impartial and unprejudiced mind to the resolution of the questions to be decided;
b) all of the exchanges relied upon by the Applicant are in fact exactly the type contemplated in Johnson –v- Johnson;
c) there is no reference in any of the exchanges to indicate that His Honour had in fact made any decision about any matter at the time of the exchange; and
d) in relation to the exchange referenced in E1:
i) the analysis of the evidence does not support the Applicant’s submission that the evidence given on both days is not “irreconcilable or inconsistent, certainly not in any definitive sense”; and
ii) the statement made by His Honour in E1 “I’m going to end up having to rule on certain things” makes no reference to the making of a decision about the Applicant’s credit as a witness. That is not a reasonable inference; and
e) the exchanges in E2, E3 and E4 do not establish apprehended bias.
Consideration of Waiver by Delay
10) The Applicant alleges that he brought this application at the earliest possible opportunity, after having obtained access to the audio recordings of the proceedings.
11) The Applicant did not make any application on 21 August 2018, more than 2 months after the conclusion of the oral evidence on 15 June 2018.
12) The Applicant is an admitted solicitor and aware of the relevant principles pertaining to the conduct of legal proceedings.
13) It is not insignificant that the exchanges relied upon by the Applicant occurred during the first day of a three day hearing (in the cases of E2, E3 and E4) and at the commencement of the hearing on 14 June 2018 (in the case of E1). The Applicant had more than adequate opportunity on 14 or 15 June 2018 to make an application for recusal.
14) Given the effluxion of time, it is open to infer that the Applicant has waived any right to make the present application.
Orders Sought
15) The current application should be dismissed.
These submissions were accompanied by an additional document, which contained extracts from the authorised Court transcript, which were as follows:
But why were you seeking to make this whole highly formalistic at that stage? If, on your position, there was no issue at all? Yes.
but there was some concern raised on the part of the respondent ? Yes.
why were you seeking to make it entirely formalistic? Why not just have the conversation with them? Yes.
and try and persuade, “Look, there was no issue here,” or, “This was my responsibility”? So, primarily, it was on the 30th, the morning of the 30th, was when I had the conversation with Ms Fraser that we’re taking you off – we’re removing your full-time line position from you completely. We might give you one shift in the next fortnight, and we’re doing that because you’re a casual. That was the morning of the 30th. Okay. The afternoon of the 30th, we have a run-of-the-mill incident, from my perspective, a standard incident, and then all of a sudden, two days later, it’s now we’re not going to give you any more work whatsoever because of this incident on the 30th. You have to understand there was four and a half months of incidents prior to that, all of them highly dangerous. I mean, we’ve got kids
HIS HONOUR: But you keep – sorry. You keep talking about all these other incidents. But why didn’t – as Mr Darams put to you, why didn’t you just go to the meeting and put your account? I thought at that stage that I should absolutely be putting things, particularly my account of this incident, in writing, because I thought that, based on that meeting, the respondent would validate its retrospective decision to essentially remove me from my job. So at that stage I wanted to have things in writing. I had wanted them in writing far earlier than that, but until that point nothing substantial had been in writing.
MR DARAMS: And you then write to Mr Cowling on 5 December? Yes.
By email; correct? Yes.
And perhaps – have you got the document to hand? It’s annexure 67 to your affidavit, page 94 of 214, your Honour.
THE WITNESS: I’ve got the text set out in the affidavit, but I will – would you like me to get all of the emails that were exchanged in this period, 5th to the 20th?
MR DARAMS: Well, I would like – do you not have the box with you, the annexure to your affidavit? No, but I can get the annexures.
Could you get that, please? All of the annexures. Yes.
Now, it’s fair to say that by the time that you had composed this email, you had been researching or exploring your employment rights; correct? Briefly, yes. It’s two days in between the 2nd and the 5th.
HIS HONOUR: That’s right. But you said earlier that you had been exploring them basically ? Yes.
since very soon after signing the contract? No. Respectfully, I believe that I said I started to investigate them in specific detail after the conversation with Ms Fraser on the 30th, where I believe she had initiated that first action. I had looked into general things like how EAs work and that sort of thing after signing the employment contract.
No, that’s all right. Yes. But, again, your earlier evidence was that as of late August you had doubts about the validity of the contract; correct? Yes, not based on any particular research. I just thought the essential terms still hadn’t been provided, so how I can agree to essential terms if I don’t know what they are, the essential terms being those set out in the EA.
But, again – I know this is terribly repetitive, but the document, that is, the contract ? Yes.
directly above your signature says:
I have read and understood this letter and accept –
etcetera:
…on the terms and conditions as set out in this letter.
Correct? Yes. However – and I apologise if I am being repetitive – it’s something – it’s a fault of mine, I suppose, but within that document it refers not – it doesn’t provide, necessarily, terms. It says see this part of the EA or refer to this part of the EA for this. So those terms aren’t in this letter of offer.
I understand that? Yes.
MR DARAMS: But, despite all of that, the lawyer and your training, you were prepared to agree to the terms on that basis? Well, I wanted to do this work, so for that reason, to start to do this work, I agreed to it.
And you were prepared to be bound by whatever those terms might be? Yes, that would be fair to say. Yes. But still, without seeing them, I just wasn’t sure how valid
Well, just in relation – and you’ve obviously seen the EA now? Yes.
Is there anything in that enterprise agreement that gave you any or has given you any cause for concern about the terms of the casual contract you signed? What
The Respondent filed additional submissions after the hearing, addressing the case law that was raised by Mr Clarke and particularised (but not explained) in his short submission on 25th September 2018. The submissions, filed on 2nd October 2018, were as follows:
1) These further submissions are to [be] read together with the respondent’s previous submissions filed and served on 18 September 2018.
2) These further submissions respond to the further submissions filed by the applicant on 25 September 2018.
3) The applicant’s further submissions cite a recent decision of the Queensland Supreme Court in Parbery & Ots –v- QNI Metals Pty Limited & Ots [2018] QSC 218 (Parbery)
4) In Parbery, the following key facts are relevant:
a) the evidence relied upon in support of the application for recusal was contained in a written judgment in an interlocutory matter (relating to an application for a freezing order). In making the freezing order, the Judge made a finding that the evidence of a key witness was “implausible”; and
b) the application for recusal arose in circumstances where the Judge was preparing to preside over subsequent and related proceedings that would involve considering oral evidence from the same key witness about whom he had already made findings of credit.
5) In the present proceedings, the applicant relies upon one comment during the course of the trial to support the applicant for recusal.
6) That comment was made in the course of an exchange during the course of the proceedings. That comments did not constitute a finding or comprise part of a Judgment in which the Judge was expressing a conclusion about the matter in question (in this case the consideration of the applicant’s credit as a witness).
7) The applicant can point to no further evidence or conduct on the part of the presiding Judge that supports any contention of reasonable apprehension of bias, actual or otherwise.
8) The decision of Parbery is not relevant to the consideration of relevant authorities for the present application. Alternatively, Parbery can be clearly distinguished on its facts.
Orders Sought
9) The current application should be dismissed with costs.
Outline of Principle
A convenient starting point for the consideration of principle are comments by Kirby J in Antoun v The Queen.[3]
[3] Antoun v The Queen (2006) ALJR 497; (2006) 224 ALR 51. Re JRL; Ex parte CJL (1986) 161 CLR 342 at p.352. French CJ’s judgment in British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 at [1] begins with Mason J’s important admonition in Re JRL. His Honour dissented, as did Gummow J, in the result.
First, at [32], his Honour said (internal citations omitted): [4]
… the approach of this Court has now travelled beyond the apparent approbation of judicial silence expressed in R v Watson; Ex parte Armstrong. In the United States of America, such silence has been held, on occasion, to constitute a denial of due process. It deprives the party who will ultimately be affected by judicial conclusions of the “opportunity, before judgment, to be heard to correct and to persuade.” Just as the judge should, to a proper extent, listen, so the judge should, to a proper extent, express any tentative views.
[4] See too the earlier comments of the High Court in Vakauta v Kelly (1989) 167 CLR 568 at p.571, where Brennan, Deane & Gaudron JJ said: “[A] trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated.”
At [33], Kirby J noted summarily the particular circumstances in the matter before him that gave rise to apprehended bias:
… the problem in the present case was that the views, as expressed, and re-expressed were not tentative, or not apparently so. They were stated peremptorily, repeated emphatically and given force by later remarks and actions, including the unrequested decision as to bail.
In comparison to the matters before the High Court in Antoun, I simply observe that in the matter before me, at its highest, and by reference only to the evidence relied upon by the Applicant as set out in his Affidavit (as opposed to the wider context set out in the official Transcript), the recusal Application is made essentially on the basis of the Court asking a number of questions on one occasion in the course of the 3 day hearing.
Contrary to the Applicant’s submissions, no “settled view” was expressed by me (peremptorily, repeatedly, or otherwise); no ruling was made; nor was the Applicant precluded from making relevant submissions at the end of the hearing, or otherwise.
In Antoun, Kirby J also referred to Mason J’s regularly cited caution in Re JRL; Ex parte CJL against acceding too readily or too quickly to applications for disqualification. At [34], Kirby J said (internal citations omitted):
It is true that, in the oft-repeated and oft-applied words of Mason J in Re JRL; Ex parte CJL, this court has “loudly and clearly” expressed a corrective against any view that a judge should too readily accept recusal because a party has demanded it. In the administration of justice in Australia, the parties do not (at least normally) have an entitlement to choose among the judicial officers who will conduct the trial. This principle has been reasserted and applied in many cases.
Similar views to those expressed by Kirby J in Antoun were also expressed in the plurality judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson.[5]
[5] Johnson v Johnson (2000) 201 CLR 488 at [13]. The plurality’s comments in Johnson on the attributes of the relevant bystander were set out in full in French CJ’s dissenting judgment in British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 at [46], and in the judgment of the majority (Heydon, Kiefel & Bell JJ) at [132].
Also in Johnson v Johnson, Kirby J noted in particular, at [46] (internal citations omitted; emphasis added):
Whatever may have been the tradition in earlier times, opinions favouring silence on the part of an adjudicator during a hearing (which is the surest means of avoiding most allegations of prejudgment) are now seen as carrying risks of an even greater injustice. Unless the adjudicator exposes the trend of his or her thinking, a party may be effectively denied justice because that party does not adduce evidence or present argument that could have settled the adjudicator's undisclosed concerns. A frank dialogue will commonly be conducive to the avoidance of oversight and the repair of misapprehensions. Uninformed members of the public are doubtless sometimes surprised by the robust exchanges which take place in court, especially between a judge and experienced lawyers. But judges and other adjudicators and lawyers know that such dialogue can have great value.
Changes that have come about in the administration of justice, including the increase in the number of trials by single judges, have also required, to some extent, an adjustment to the rules of reticence in judicial observations that may still be appropriate where trials, criminal or civil, are conducted before a jury. One of the reasons for such changes has been the desire to increase the efficient management of the trial process. Yet it is in that context that the expressions of preliminary and tentative views may sometimes appear to an outsider to indicate prejudgment. Although some adjudicators may be hard to shift from tentative opinions, lawyers know that, in most judicial decision-making, the process is a continuous one. Preliminary inclinations do change.
And further, in Johnson v Johnson Kirby J outlined the expected “characteristics” of the “reasonable bystander” (accepting that his Honour referred to a character or persona known as “the fictitious bystander”). At [53], Kirby J said (internal citations omitted; emphasis added):[6]
The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.
[6] Johnson v Johnson (2000) 201 CLR 488. Kirby J’s comments, at [53] in Johnson to which I have referred concerning “the bystander”, were considered further in Smits v Roach (2006) 227 CLR 423 at [95] – [97]. Concerning Kirby J’s reference in Johnson to the “fictitious bystander”, I note that the plurality in Johnson, at [13], referred to “the fictional observer.” Certainly, since the High Court decision in Ebner, the test has referred to “the fair-minded lay observer.” See Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow & Hayne JJ: Callinan J concurring, at [182]), [83] (Gaudron J); Smits v Roach (2006) 227 CLR 423 at [56] (Gummow & Hayne JJ); and British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 at [37] (French CJ), and [139] (Heydon, Kiefel & Bell JJ).
In Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd, Kirby and Crennan JJ said, at [112] (internal citations omitted; emphasis added):[7]
Sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case. However, one thing that is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias.
[7] Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577. His Honour, Gummow A-CJ, concurred, at [4].
In the same case, in a detailed examination (at [171] – [180]) of what does and what does not constitute apprehended bias, Callinan J said, at [177], that “the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer.” And again, at [180], his Honour said (emphasis added):[8]
Taken cumulatively, his Honour’s interventions and reasons for judgment do not give rise to an apprehension of bias. Critical, strong and candid they may have been, but excessively so they were not. To some extent they may be taken to be expressions of exasperation, unfortunately so perhaps, but as a matter of degree, still falling short of apparent bias.
[8] As with the comments of Kirby and Crennan JJ, A-CJ Gummow concurred, at [4], with the remarks of Callinan J.
Again by reference only to the selective passages of transcript that are relied upon by the Applicant in the present matter, and having regard to the principles to which I have referred, the inquiry or querulous comment by me, on one occasion during a 3 day trial, cannot, and does not, on any view of the authorities, constitute bias of any kind, least of all actual bias. When proper regard is taken of the entire transcript surrounding the matters raised by the Applicant, it puts into even sharper focus the implausibility of both (a) the factual and legal contentions made by the Applicant and in turn (b) the likelihood of success of the Application.
A more recent consideration of apprehended bias by the High Court is the decision in Michael Wilson & Partners Limited v Nicholls.[9] It is helpful to note the following from that case, both regarding its summary of principle, and for comparative purposes, its complex factual and procedural circumstances.
[9] Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427.
First, as to relevant principle, the High Court said, at [31] – [33] (internal references omitted), the relevant test in relation to apprehended bias is:
[31] … 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 question the judge is required to decide.
[32] As the plurality in Johnson v Johnson explained, “[t]he hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues.”
[33] Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias.
The High Court also commented in Michael Wilson, first at [63] in relation to the test in Ebner, then at [67], saying (internal citations omitted; emphasis in original):
[63] In Ebner v Official Trustee in Bankruptcy, the plurality pointed out that application of the apprehension of bias principle requires two steps. First, it requires the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. And second, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits. The plurality in Ebner went on to say that “[t]he bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated.” So too, in this case, the bare assertion that the judge appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making.
[67] … an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgment” impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment.
The High Court further observed, at [69] – [70] (internal citations omitted):[10]
[69] Here, however, it was said that “the fact that one party appeared before the judge on seven separate days in closed court raised a different and additional concern.” That concern was identified as the possibility “in such circumstances that the judge's mind will become familiar with the character of the plaintiff's case to an extent that, consciously or subconsciously, there will be a tendency to place the further evidence within the pre-existing mental structure” (emphasis added). But the existence of a “concern” described as the possibility of placing the evidence led at trial into a “pre-existing mental structure” does not demonstrate that the fair-minded lay observer might reasonably apprehend that the judge might have prejudged an issue to be decided at trial. In order to establish such a reasonable apprehension it is necessary to analyse more closely the connection that is asserted between the conduct and disposition of interlocutory applications and the possibility of prejudgment.
[70] The fact that Einstein J made several ex parte interlocutory orders and on each occasion directed that those applications, the material in support, the reasons for making the orders and the orders themselves not be disclosed to one side of the litigation did not found a reasonable apprehension of prejudgment of the issues that were to be fought at trial. It may well be that the directions not to disclose material should not have been left in force for as long as they were. Perhaps they should not have been made at all. But if their making or the failure to limit their duration was wrong, that did not found a reasonable apprehension of bias.
[10] See also Heydon J’s comments, at [117], to the effect that, even on the facts in Michael Wilson, “prolonged familiarity” was insufficient to establish any relevant apprehended bias.
Consideration & Disposition
Two matters may be noted quickly and briefly at the outset.
First, as recorded earlier in these reasons, the Applicant indicated to the Court in his closing oral submissions that the Court should have regard to the recent decision of the Queensland Supreme Court, in which the Applicant said that a Judge had recused himself because he had made one comment in relation to “credibility.”
In fact, the judgment of Bond J in Parberry v QNI Metals Pty Ltd makes plain that his Honour was required to make formal findings in relation to evidence given during one or more interlocutory proceedings.[11] The adverse finding(s) in relation to the credibility of the evidence of Mr Palmer was a matter which, Bond J said (at [43] – [86]), was relevant to the principal proceedings, where the credit of that same witness would likely be an important issue at trial.
[11] Parberry v QNI Metals Pty Ltd [2018] QSC 213.
At [87], Bond J said that Mr Palmer’s allegations of actual bias were “baseless.” However, because of the detailed findings he had made against Mr Palmer, in all of the circumstances of that case, Bond J recused himself on the ground of apprehended bias.
As observed a number of times already in these reasons, the current Application is based solely on a single comment or question made to seek further information in the midst of a 3 day hearing. Unlike the matter before Bond J, there has been no ruling in any relevant sense, including in relation to any matter going to credibility. I borrow Bond J’s comment and confirm that the Applicant’s contention in relation to actual bias is “baseless.”
Secondly, as also noted earlier in these reasons, the Applicant was asked to provide a note to the Court regarding the “Queensland case” that he requested the Court have regard to. Both in his oral and written submissions in this regard, the Applicant does nothing other than give the citation of that case.
Regarding the Applicant’s other submissions, primarily as set out in his Affidavit of August 2018, I note the following.
I have already observed that the extract of transcript provided by the Applicant is selective. It provides neither context nor relevant detail of the wider discussion that was taking place at the time.
Next, what is also curious about the Applicant’s submissions, is that he in fact agreed (see par.7) with the general inquiry regarding whether it would have been prudent for him to obtain independent legal advice in relation to the issues he was concerned about at the time, and which were the subject of cross-examination during the hearing.
Then, at par.8 of his Affidavit/submissions, the Applicant contended that (a) I had expressed a “notable inconsistency or discrepancy” regarding his evidence during the trial, (b) the Applicant had sought to make further submissions,[12] (c) I “intended to rule in accordance with this view”, and (d) I then “moved proceedings along.”
[12] This assertion or claim is actually expressed twice by the Applicant at par.8(b) and (c).
Dealing with the last claim first: I am unaware of any ground, or principle, that moving a hearing along constitutes bias of any kind. It must be, and is, rejected.
The relevant extract from the official Transcript certainly notes that I “thought” that there was a discrepancy, or perhaps a difference, in the Applicant’s evidence between day 1 and day 2 of the hearing. There is no evidence that I indicated, in any relevant respect, how I intended “to rule” on any matter in issue before the Court. To so infer from what the Applicant has set out in his selective extract would be dangerous in the extreme. Moreover, when considered in the light of the entirety of the official Transcript, and in the light of the authorities to which I have referred, the Applicant’s contention has no foundation or substance.
In relation to the claim that the Applicant was denied an opportunity to respond to what he now perceives to be my view that there is or was some inconsistency in his evidence, (a) there is no evidence that, at any time during the hearing, the Applicant sought and was denied any adjournment to give him time and opportunity to consider his position and thereafter to make any submissions (additional or otherwise), and (b) there is no evidence that the Applicant, immediately after the hearing or later, sought by Application either to re-open, or to make further submissions, regarding the remarks he has selected in his Affidavit of August 2018.
In short, whether by reference to the limited extract of the transcript which the Applicant provided in his August 2018 Affidavit, or by reference to the official Transcript set out earlier in these reasons, it is untenable to argue, as the Applicant does, that he was denied any relevant opportunity to respond to the questions put to him by the Court on the second morning of the hearing. Accordingly, this aspect of the Applicant’s contentions must be rejected.
Finally, regarding the Applicant’s claim that there was a “notable inconsistency”, it is apposite to observe that even on the extract as presented by the Applicant, at par.7 of his Affidavit, the relevant quote is in the following terms: “… Well these were questions that Mr Darans put to you yesterday. And I thought that your evidence was a little bit different.”
The Applicant asserts in his submissions (par.8(a)) that the view expressed by me was a “notable inconsistency.” The Applicant’s contention is clearly not supported by the facts. There is no reference at all to “notable.” Why such an exaggeration was inserted is not explained by the Applicant. To make such a submission was unwarranted. Standard practice rules confirm that it is not appropriate for a legal practitioner to make submissions that are not supported by evidence. Such is the case here. Moreover, the Applicant does not address that it was posed as a question “I thought …”, not a declaration of intent in any relevant sense. In short, both it is terms, and in its proper context, the single question/querulous comment provides no basis for any claim of bias, of any kind.
Likewise, the matters raised in pars.9 – 12, which focus on the Applicant’s concerns about the consistency of his evidence, and in which he posits that a querulous comment constitutes a view “firmly held” (par.12), are not supported by any of the principles from the cases earlier referred to. The comment was nothing more than an “exploratory, or qualified and [a non] definitive” one. The contentions made by the Applicant must also be rejected.
In conclusion, I return to the issue of waiver and the delay by the Applicant in bringing the recusal Application. This is addressed in pars.14 and 15 of his Affidavit/submissions.
First, he said that it took him quite some time to obtain the audio recording of the hearing. Secondly, it was only after listening to the recording, and conducting further analysis that he “became aware of the principles of bias”, which were then “further investigated and analysed.”
To these submissions, and in addition to what has already been said, I note:
(a)Plainly, nothing struck the Applicant during the hearing that there was anything untoward in the conduct of the trial (including comments and questions during cross-examination). While not necessarily determinative of it, one might have reasonably expected that a person, especially who is legally trained and admitted to practice, would notice if there was anything lacking or otherwise amiss regarding the general conduct of a trial. As I have already said, nothing obviously struck the Applicant even shortly after the hearing that there was anything awry with the conduct of the hearing;
(b)Although the basal principles regarding bias (apprehended and or actual) are usually part of courses or legal texts that deal with administrative law, because matters of “bias” can apply or arise in any form of dealing, and any form of trial (e.g. ranging from criminal matters, evidenced by the decision in Antoun, to municipal councils[13], and everything in between), the relevant principles should be sufficiently well known, even if only in a general sense, to those admitted to legal practice;[14]
(c)Here, the Applicant is legally qualified and has been admitted to practice. Not to hold him to account for his training and being admitted to legal practice would require both of those things to be ignored. There is no basis for so ignoring those matters. In my view it would be inappropriate to do so. It is inappropriate also to allow him, after the event, to make decisions about the conduct of his case which, by virtue of his training, he should have made (if at all) during, or immediately after, the hearing. To allow him to do so now, so long after the hearing, is prejudicial to the Respondent. Potentially, it is also a waste of Court resources.
[13] See the High Court’s recent discussion in Isbester v Knox City Council (2015) 255 CLR 135.
[14] See, for example, the well-known and regularly cited legal text by M. Aronson, M. Groves and G. Weeks, Judicial Review of Administrative Action and Government Liability (Sixth Edition) (Sydney: Lawbook Company, 2017) Chapter 9 “The Rule Against Bias.”
For the reasons given, factually there is no substance to the Application for recusal. The facts as propounded by the Applicant do not support either form of “bias.” The more complete factual matrix set out in the official Transcript further establishes that there is no basis for any form of bias towards or against the Applicant. Nor do the principles distilled from long-standing authorities support the current Application. Further, the delay in bringing the Application, in my view, constitutes waiver, in accordance with the principle articulated in Smits v Roach.
Otherwise, I accept the submissions made on behalf of the Respondent.
Accordingly, the Application filed on 22nd August 2018, must be dismissed.
The question of “costs” was raised during the hearing on 20th September 2018. It was considered briefly in the context of whether the current Application came within the terms of s.570 of the Fair Work Act 2009 (“the FW Act”). The discussion was not extensive or definitive. It may be arguable that a recusal Application that arises out of proceedings that formally come under the FW Act also enjoys or attracts the privilege of s.570. It is perhaps also arguable that because a recusal Application does not come formally under the FW Act, s.570 has no application. In such circumstances, I simply reserve the Respondent’s costs.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 1 November 2018
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