Cornwall v Rowan (No 3)
[2006] SASC 110
•13 April 2006
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
CORNWALL & ORS v ROWAN (No 3)
Judgment of The Full Court
(The Honourable Justice Bleby, The Honourable Justice Besanko and The Honourable Justice Sulan)
13 April 2006
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS
Application by plaintiff to set aside Full Court judgments on appeals and cross-appeal – Allegations of apprehended bias in respect of two members of the Court – Findings as to credit of significant witness in question on appeal – Allegations based on assertions of involvement of the witness in various organisations – Judges said to be involved in some of the organisations – Disclosure by each Judge of their association with parties to litigation and with relevant organisations – Principles of apprehended bias considered – Whether basis for disqualification – Nature of asserted association so insubstantial as to preclude any real apprehension of bias – Application dismissed.
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, applied.
Webb v The Queen (1993) 181 CLR 41; Livesey v New South Wales Bar Association (1983) 151 CLR 288; Kartinyeri v Commonwealth of Australia (1998) 156 ALR 300, considered.
CORNWALL & ORS v ROWAN (No 3)
[2006] SASC 110Full Court: Bleby, Besanko and Sulan JJ
BLEBY J:
Background
On 24 November 2004 this Court, as presently constituted, published reasons for decision on a number of appeals by defendants in the original action and on a cross‑appeal by the plaintiff against the judgment of the trial Judge. In that judgment the trial Judge had awarded damages in favour of the plaintiff against a number of defendants including Mrs Judith Roberts. A number of the defendants were successful in the appeal. On the question of liability for damages, the defendants Dr Cornwall and Mrs Roberts were unsuccessful in their appeals. They were successful in having the amount of damages for defamation of the plaintiff reduced by $35,000 because the Court was satisfied that the plaintiff had failed to make good one particular imputation found by the trial Judge to have been contained in the report and television programs the subject of the action. However, the assessment of damages against Mrs Roberts for her part in the television programs, being the only basis on which she was found liable by the Full Court for damages to the plaintiff, was increased on appeal by $55,819, being damages for economic loss sustained by the plaintiff.
On 21 December 2004 the Court was due to hear argument on the form of orders to give effect to the decision, the question of interest on the judgment, consequential orders as a result of the defendants having paid the original judgment sum to the plaintiff and the question of costs both of the trial and of the appeal. At the beginning of the hearing, Mr Heywood-Smith QC, then counsel for the plaintiff, raised a question concerning the ability of Sulan J to sit on the appeal, a matter which had been raised with His Honour by counsel in chambers shortly beforehand. A brief statement was then made by Sulan J in open court concerning his alleged association with Mrs Roberts whereupon Mr Heywood‑Smith sought and was granted a brief adjournment in order to obtain instructions. After an adjournment of 30 minutes Mr Heywood‑Smith announced in court that he was not instructed to take the matter any further. The argument on the matters mentioned above then proceeded.
On 1 April 2005 the Court gave judgment on the matters on which it had heard argument, that judgment constituting the judgment of the Court on the appeals and cross-appeal. Among other orders, Dr Cornwall and Mrs Roberts were ordered to pay 75% of the plaintiff’s costs of the trial. As between the plaintiff and those defendants there was no order as to the costs of the appeal.
I mention those facts by way of background to the allegations of apprehended bias to which I am about to refer.
The plaintiff’s application
On 1 March 2006 the plaintiff, having changed her solicitors, made an application to the Court that “the judgments … given on 24 November 2004 and 1 April 2005 be set aside”, together with such further and/or other orders as the Court might think fit. Subsequent explanation by Mr Borick QC, now counsel for the plaintiff, indicates that the necessary consequential order would be that the appeal be heard afresh by a differently constituted Full Court.
The application is supported by an affidavit of the plaintiff in which she deposed to the fact that on 20 December 2004 she was made aware that Sulan J was a member of the Finance Committee of the Flinders University of South Australia and Chair of the Disciplinary Committee of the University, both Committees being answerable to the Flinders University Council, of which Mrs Roberts had been a member since 1992, having served on the Council as Pro Chancellor.
The affidavit referred in passing to the statement Sulan J made on 21 December 2004 and said that the plaintiff had become aware that Mrs Roberts and Sulan J were “associated” through the Board of Flinders Technologies Pty Ltd, and that both Mrs Roberts and Sulan J were members of the Multicultural Forum during the years 2000 and 2001.
The plaintiff also deposed to the fact that she was “advised” that all three members of this bench were associated in various capacities with twelve organisations which were then named and of which, it was alleged, Mrs Roberts was also a member or with which she was “otherwise associated”. No more details were given. The affidavit continued:
11.The information provided to me and contained in paragraph 9 indicates an association between members of the Court, either directly or indirectly, with some but not necessarily all of the named organisations but collectively there is a connection between the members of the Court and the organisations referred to and through that association a further association between the members of the Court and Mrs Roberts.
12.The relationship between Mrs Roberts and their Honours exists as a distinct possibility arising out of their shared interests and varied associations with the same organisations.
13.An impartial observer could apprehend that the Court might not bring an impartial mind to the resolution of the questions concerning persons of similar interests to those of the judges on the Court.
A later affidavit of the plaintiff’s solicitor exhibited the curriculum vitae of Mrs Roberts which had been tendered as Exhibit SA 62 in the trial. It had been reproduced for the hearing of the appeal in the Book of State Exhibits prepared for that purpose. However, only passing reference was made to it in the appeal.[1] The curriculum vitae indicated extensive association by Mrs Roberts at various times with various state and federal government, community, political and charitable organisations, some of which had been named in the plaintiff’s earlier affidavit.
[1] Written submission, 1st – 8th appellants, para 54; Appeal Transcript p 46.
A further affidavit of the plaintiff’s solicitor exhibited a large volume of documents including Flinders University Council minutes and other publications related to Flinders University, extracts from Mrs Roberts’ diary tendered in evidence at the trial, extracts from “Who’s Who in Australia 2005” concerning the Chief Justice, myself, Sulan J and Mrs Roberts, reports of the South Australian Multicultural & Ethnic Affairs Commission and of the Senior Secondary Assessment Board of South Australia and some selected publications concerning some of the organisations mentioned in the plaintiff’s affidavit and others not so mentioned. The significance of these documents was never explained. It was certainly not obvious.
Before hearing argument on the application the Court sat for the purpose of enabling each Judge to make a statement concerning his association (if any) with any of the parties to the appeal and with any of the organisations mentioned in the plaintiff’s affidavit or in material exhibited to her solicitor’s affidavits. The disclosure I then made is annexed as an appendix to these reasons.
The principles relating to apprehended bias
The test in Australia for disqualification on the ground of apprehended bias is well established and is not in doubt. It was conveniently stated in the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy[2] as follows:
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver … or necessity …, a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. [Footnotes omitted].
[2] (2000) 205 CLR 337 at 344, [6].
The test is an objective one requiring a reasonable apprehension by a “fair-minded” lay observer.
The joint judgment in Ebner[3] makes clear that judges have a duty to exercise their judicial functions when assigned to hear cases in accordance with the prevailing practice in their court, and that any objection to a judge sitting cannot prevail “unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case”. A bare alleged assertion of some vaguely stated connection between a member of the Court and Mrs Roberts will be insufficient to justify disqualification.
[3] Ibid at 348, [19].
As the High Court said of the principle of apprehended bias[4]:
Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The 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. Only then can the reasonableness of the asserted apprehension of bias be assessed.
[4] Ibid at 345, [8].
Unless the plaintiff can identify the nature of the asserted association or interest, and unless she can indicate why it is that that association or interest gives rise to the relevant apprehension, then the reasonableness of the alleged apprehension of bias cannot be assessed.
The plaintiff’s argument
Mr Borick, QC, counsel for the plaintiff, did not attempt to meet these criteria. As I understood his argument, it was that the findings of the trial Judge had damaged Mrs Roberts’ credibility. Those findings were subject to challenge on the appeal. They also had the potential to damage the status of and to have an adverse impact on the organisations with which Mrs Roberts is or was associated. Judges of this Court are “associated” with some of those organisations. They would feel that the organisation has thereby been wounded or damaged by the findings of the trial Judge and that a key member of the organisation has thereby been discredited. That would, in some way, be perceived as influencing this Court’s decision on the appeal, at least so far as it affected the findings of the trial Judge concerning Mrs Roberts’ credit.
Mr Borick described this not as a rational but rather as an intuitive process, and one which may differ between men and women. An intuitive process, he argued, is one that involves “an immediate apprehension by the mind without reason”, an antithesis of rational argument.
In my opinion the argument only has to be stated to reveal its obvious deficiencies. In the first place, there is no evidence to suggest that the finding of the trial Judge concerning Mrs Roberts’ credit in her capacity as an author of the report in question and as a witness at the trial had damaged or reflected poorly on any of the organisations with which she has been associated or, that any rational thinking person would believe so. Nor is there any logical reason to suggest that a person associated with such an organisation, including a Judge, would have any reason to believe that the findings have adversely affected any such organisation or that the person’s past or continued association with the organisation would induce any reasonable perception that a fair and proper judgment could not be brought to bear on the issues raised by the appeal.
As presented, the argument must contemplate a different possible result according to the gender of the Judge.
More importantly, however, the process advocated is far from an objective one, as the authorities binding on this Court require. It seeks to substitute intuition for objective reason. The very fact that, as Mr Borick acknowledges, the process is the antithesis of rational argument and involves an apprehension of the mind without reason makes it impossible, as the law requires, for a Judge to provide any rational reasons why he is or is not disqualified – reasons which Mr Borick rightly insists that each one of us should provide.
In my opinion, the plaintiff’s argument has no support whatever from any decided authority, is not supported by any accepted process of legal reasoning and has been doomed to fail from the outset.
Whether I was or am disqualified
Nevertheless, I must still consider, in accordance with the principles binding on this Court, whether I was or am disqualified from sitting on this appeal. Mr Borick did not attempt to indicate or rely on any particular association or interest between Mrs Roberts and me. Indeed, in his written outline of argument he disavowed any suggestion of “any direct link between any of the Judges and the witness Judith Roberts”. In my case, I consider that the asserted associations are either non‑existent or, at their highest, indirect and tenuous. That applies to the assertions contained in the affidavits and the material exhibited thereto. There has been no attempt to identify the nature of the alleged association or interest that I have with Mrs Roberts which would be a disqualifying one, even after full disclosure of my and my wife’s association with the relevant organisations and with some parties to the litigation.
As to the second requirement, namely the need to articulate why it is that that association or interest gives rise to the relevant apprehension, it seems that the nearest the plaintiff can come is to assert that the trial Judge’s findings concerning Mrs Roberts’ credit have the potential to damage the organisations with which she is associated.
None of those organisations or committees was involved in any way in the facts of this case. There was never any suggestion that in preparing the report the subject of the action, that in appearing on the television programs the subject of the action, or that in giving evidence at the trial, Mrs Roberts was acting or speaking for or on behalf of any of those organisations. Any suggestion of damage to those organisations is, as the defendants submit, fanciful.
The alleged connections between Mrs Roberts and me, between any other party to the litigation and me and the acknowledged association of me and my wife with some of the organisations mentioned in the plaintiff’s affidavits render any relationship between me and Mrs Roberts so insubstantial, indirect and tenuous as not to give rise to any reasonable apprehension of bias. Accordingly, I consider that I was not and am not disqualified from sitting on this appeal.
Conclusion
As both the other members of the Court have reached a similar conclusion in relation to their own respective positions, it follows that the plaintiff’s application must be dismissed.
APPENDIX
STATEMENT OF THE HONOURABLE JUSTICE BLEBY
MADE ON 21 MARCH 2006 AS TO MATTERS
RELEVANT TO THE PLAINTIFF’S APPLICATION
FILED ON 1 MARCH 2006For my part, I disclose association with three of the organisations mentioned in the plaintiff’s affidavit sworn on 27 February 2006.
I am a practising communicant member of the Anglican Church of Australia. Since 1995 I have been Chancellor of the Diocese of Adelaide. I have been a member of the Synod of the Diocese of Adelaide for many years and a member of the Diocesan Council. I have held and continue to hold a number of positions in the Church at a national level. My most frequent places of worship are St Peter’s Cathedral and St Colomba’s Church, Hawthorn. In none of the activities in which I have been involved with and for the Anglican Church have I had any association with Mrs Roberts or any other party to these proceedings. I note that Mrs Roberts’ curriculum vitae, Exhibit SA 62 in the trial, was reproduced for the appeal in the Book of State Exhibits Volume 1 at p.72. Only passing reference was made to that exhibit in the appeal.[5] Mrs Roberts is described in the curriculum vitae as “Communicant member of the Anglican Church of Australia”. That is the extent of my knowledge of Mrs Roberts’ involvement with the Anglican Church. The CV and the other material exhibited to affidavits discloses no other active involvement in the affairs of that Church.
[5] Written submission, 1st-8th Appellants para.54; Appeal Transcript p.46.
For many years my wife and I have been patrons of Independent Theatre. We regularly attend their productions. Neither of us takes any part in their management. I am not aware of Mrs Roberts’ association (if any) with Independent Theatre.
From 1981 to 1985 my daughter was a student at Walford Anglican School for Girls. I took no part in the governance of that school. I do not know whether Mrs Roberts was associated with that school when my daughter attended. I had no association with Mrs Roberts through that school.
I have had no association in any capacity with any other organisation named in the plaintiff’s affidavit. I am unaware of any basis on which the plaintiff suggests that I have.
I have, well before my involvement in these proceedings, at times and places which I cannot now remember, met Mrs Roberts and her husband on several occasions in the course of social gatherings. In that context I note the extensive involvement of Mrs Roberts and her husband in community activities as disclosed in her curriculum vitae. Apart from those meetings, I have never had any social, business or other relationship with Mrs Roberts. I did not consider, at the time of hearing this appeal, that such casual encounters warranted disclosure or disqualification.
Of the other parties to these proceedings, the defendant, Ms Helen Wighton is a legal practitioner. I have been a member of the Legal Practitioners Education and Admission Council since its inception on 1 February 1999. That body is constituted under the Legal Practitioners Act 1981. I have been an appointee of the Chief Justice to that Council. Ms Wighton became a member of the Council on the nomination of the Attorney‑General on 16 May 2002 and continues to be a member. The Council meets irregularly when it is required to consider matters with which it is charged under the Legal Practitioners Act and the rules made thereunder. I have had no social, business or other relationship with Ms Wighton. I never met the late Rosemary Wighton or had any contact with her.
I had occasional professional contact with the defendant Christopher John Sumner over 25 years ago when we were both practising as legal practitioners. I have had no other social, business or any other relationship with Mr Sumner.
I did not consider, at the time of hearing this appeal, that those associations with Ms Wighton or with Mr Sumner warranted disclosure or disqualification at the time of hearing this appeal.
I have never to my knowledge met or had any relationship of any kind with any of the other parties to the proceedings.
I note from the affidavit of Michael Hegarty filed on 17 March 2006 that some reliance seems to be placed on my wife’s association with the Adelaide Bank Charitable Foundation, the Australian Refugee Association, the SA Council of Churches Refugee and Displaced Persons Committee, the Anglican Refugee Network and the Anglican Communion Refugee and Migrant Network.
Although not mentioned in any affidavit, my wife was also a member of the Flinders University Council from 1987-1990. I do not know how it is suggested that, in any of those capacities, my wife has had any association with Mrs Roberts or anyone else involved in this case. My wife’s contact with Mrs Roberts has been no more extensive than mine.
BESANKO J: The nature of the present application before the Court is described in the reasons for judgment of Bleby J.
It is not now suggested by the respondent that I should not have sat on the appeal, and I include in that term the cross-appeal and notice of alternative contentions. An earlier allegation by the respondent that I was associated with various named organisations is no longer pursued. It should not have been made as there was never any basis for it.
The allegations of apparent bias have been made in relation to the other members of the Court. Had the matters now raised by the respondent been raised before the hearing of the appeal, it would have been for each judge to decide for himself whether he should sit on the hearing of the appeal: Kartinyeri v Commonwealth of Australia [1998] HCA 52; (1998) 156 ALR 300 and the cases referred to in footnote 16. The same approach should be taken at this stage.
Each of the other members of the Court has decided that there is no reason why they could not sit on the hearing of the appeal. That is an individual decision for each of them. Those decisions mean that other possible issues related to the stage in the proceedings at which this application is made do not arise. Those decisions also mean that the respondent’s application must be dismissed.
SULAN J: By notice for specific directions dated 22 February 2006, Dawn Margaret Rowan, the respondent in these proceedings, who was the plaintiff in the action, sought an order that the judgment of this Court given on 1 April 2005 be set aside.
The background material to the application is set out in the reasons of Bleby J.
The respondent relies upon the affidavit of the plaintiff, sworn on 27 February 2006 and affidavits of Michael Hegarty, sworn on 15 March 2006 and 16 March 2006 respectively. Mr Hegarty exhibits to his affidavit various documents, which include the curriculum vitae of Judith Mary Roberts, a defendant and an appellant in the proceedings which are the subject of this application.
The exhibit discloses that Mrs Roberts was an inaugural member of the South Australian Multicultural Forum (“the Multicultural Forum”) advising the South Australian Multicultural and Ethnic Affairs Commission to the South Australian Government. The Forum was established in 1986, and Mrs Roberts remains a member. The Multicultural Forum consists of persons who have been invited by the South Australian Multicultural and Ethnic Affairs Commissioner to become members of that body. Members of the Multicultural Forum do not have any formal role. They do not meet regularly. Their task is to be informed about multicultural issues and to introduce those issues to activities in which individual members are involved.
Mrs Roberts is a patron of the Independent Theatre Company. The Independent Theatre Company is a local theatre. Patrons of the company do not meet formally. They obtain their status as patrons because they make a larger financial contribution to the operations of the company than do subscribers.
Mrs Roberts was appointed a member of the Council of Flinders University in 1992. She remains a member of that Council. In January 2001, she was appointed Pro Vice-Chancellor of the University.
Mr Hegarty’s affidavit of 16 March 2006 attaches numerous documents which confirm that Mrs Roberts attended meetings of Flinders University Council in the years 1994 and 1995. It was at these meetings that my appointment to the Flinders University Finance Committee was approved. At the Council meeting of 26 May 1995, Mrs Roberts was present when the Council reappointed me as Chairperson of the Board of Inquiry of Flinders University for a further period of three years. Mrs Roberts was present when the Flinders University Council appointed me Chairman of Flinders Technologies Pty Ltd, which was then a company controlled by Flinders University.
The plaintiff submits that I should have disqualified myself from sitting as a member of the Court hearing the appeal. She submits that the judgment of the Full Court given on 1 April 2005 should be set aside on the basis that my involvement with the organisations referred to might cause a fair-minded lay observer to have a reasonable apprehension that I might not bring an impartial mind to the resolution of the subject matter of the appeal.
Before considering the plaintiff’s submissions, I refer to events which occurred prior to the appeal proceeding. Bleby J has mentioned the issue concerning my ability to sit, which was raised by Mr Heywood-Smith QC, then counsel for the plaintiff, in Chambers on 21 December 2004 before the Court heard argument as to the form of orders, interest and costs. When the Court convened, the exchange which took place in open Court on 21 December 2004, after counsel had attended upon me in Chambers, was as follows:
MR HEYWOOD-SMITH: I appear for the respondent. I believe the court has been informed of a matter that was brought to my attention last evening. I have spoken to his Honour Sulan J about it and I have received certain information. However, there is an obligation upon me to advise my client. I don’t believe I have had sufficient time to do that. I am going to ask for a short adjournment. I hope it will only be an hour. I am told by my learned friends that the amount of time which they anticipate taking today would not be in danger of the matter going over into tomorrow.[6]
[6] Transcript of Proceedings, Rowan v Cornwall (Full Court of the Supreme Court, Bleby, Besanko and Sulan JJ, 21 December 2004) p.3, lines 1-11.
…
MR HEYWOOD-SMITH: The matter concerning me is that his Honour appears to have been in a position of proximity with Mrs Roberts, in circumstances where appearances may suggest that his Honour should not be sitting on this appeal.
SULAN J: Can I say this – and I say it now publicly – the matter you raised with me this morning related to my being a member of the Flinders University Finance Committee and Disciplinary Committee at a time when, you told me this morning, Mrs Roberts was a member of the Flinders University Council.
I indicated to you this morning and I indicate to you now publicly that, firstly, I’ve never met Mrs Roberts in any situation. When I was a member of those committees I was at the bar, I was not a judge. I did not take any directions from the council. I have never had any dealings with the council and it may surprise some, but I was not even aware that Mrs Roberts was a member of the council at the time that I was on those two organisations which are subcommittees of Flinders University.
I did not personally report to anybody on the council and, as I’ve said, I’ve never had any official dealings with any member of the council during the period that I was undertaking those roles. All my dealings were within [sic] administration.[7]
I have never met Mrs Roberts, either socially or at any other function, and I don’t know her and in the circumstances, as I indicated to you this morning, I didn’t see any difficulty that I had in respect of having sat as a member of this court, and I say that publically [sic].
BLEBY J: Is there anything other than that, Mr Heywood-Smith, that you were troubled about?
MR HEYWOOD-SMITH: No.
BLEBY J: It seems to me in those circumstances, that having been disclosed, it is a matter for the judge concerned as to whether he decides to continue sitting or not. I take it from what Sulan J has just said he sees no reason why he should not continue.
SULAN J: No, I don’t see any reason why I should not continue.[8]
[7] Transcript of Proceedings, Rowan v Cornwall (Full Court of the Supreme Court, Bleby, Besanko and Sulan JJ, 21 December 2004) p.4, lines 3-28.
[8] Transcript of Proceedings, Rowan v Cornwall (Full Court of the Supreme Court, Bleby, Besanko and Sulan JJ, 21 December 2004) p.5, lines 1-16.
Mr Heywood-Smith indicated that he was not instructed to take the matter further.
Bleby J has set out the relevant matters in support of the plaintiff’s application in his judgment under the heading “The Plaintiff’s Application”. I agree with his summary. The disclosure I made prior to hearing argument for this application was in the following terms:
I have been a patron of the Independent Theatre Company since 2004, I have been a member of the multicultural forum since October 2000, I was chairman of Flinders Technologies Pty Ltd from 1995 to 1997, I was a member of the finance committee at Flinders University from 1992 to 1995, I was the chairman of the disciplinary committee at Flinders University from 1992 to 1998, I was a director at SAGASCO Holdings Limited in 1993. The South Australian Gas Company Pty Ltd was a wholly owned subsidiary of SAGASCO Holdings Limited at that time.
As I indicated on 21 December 2004 I have never met Mrs Roberts either socially or professionally. At the time of my involvement with the organisations related to Flinders University, I met with the Vice Chancellor Professor Chubb on occasions.
During the time that I was associated with organisations related to Flinders University I was unaware that Mrs Roberts was a member of the council. I had no contact with her, I have never met her, I have never had any dealings with her in any capacity. I do not consider that I was precluded from sitting on this case.
I have met Mr Sumner, a former attorney-general in this State but I have had no social business or other relationship with him which would preclude me from sitting on this case. I did not consider at the time of hearing of this appeal that my association with Mr Sumner required disclosure or would preclude me from sitting on this case.[9]
[9] Transcript of Proceedings, Rowan v Cornwall (Full Court of the Supreme Court, Bleby, Besanko and Sulan JJ, 22 March 2006) p.11 line 31 - p.12 line 22.
Principles relating to apprehended bias
I agree with the observations of Bleby J that the test for disqualification on the grounds of apprehended bias is an objective test requiring a reasonable apprehension by a fair-minded lay observer that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the issues involved in the case.[10]
[10] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Livesey v New South Wales Bar Association (1983) 151 CLR 288, 293-294.
In Webb v The Queen,[11] the High Court considered the test to be applied. Mason CJ and McHugh J said:
When it is alleged that a judge has been or might be actuated by bias, this Court has held that the proper test is whether fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case. The Court has applied the same test to a Commissioner of the Australian Industrial Relations Commission and to a member of the Australian Broadcasting Tribunal. The Court has specifically rejected the real likelihood of bias test. The principle behind the reasonable apprehension or suspicion test is that it is of “fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”.[12] [Footnotes omitted]
Deane J said:
In a series of recent cases, the Court has formulated the test to be applied in this country in determining whether a judicial officer (“a judge”) is disqualified by reason of the appearance of bias, as distinct from proved actual bias. That test, as so formulated, is whether, in all the circumstances, a fair-minded lay observer with knowledge of the material objective facts “might entertain a reasonable apprehension that [the judge] might not bring an impartial and unprejudiced mind to the resolution of the question” in issue. The quoted words in that statement of the test are taken from the judgment of the Court in Livesey v. N.S.W. Bar Association. In that case, and in a number of the other cases, the test was stated in terms of an apprehension on the part of “the parties or the public”. So stated, the test directly reflects its rationale, namely, that it is of fundamental importance that the parties to litigation and the general public have full confidence in the integrity, including the impartiality, of those entrusted with the administration of justice. However, the test is an objective one and the standard to be observed in its application is that of a hypothetical fair-minded and informed lay observer. That being so, it is convenient to frame the test itself in terms of reasonable apprehension on the part of that particular inhabitant of the common law. I have used the word “apprehension” in preference to the word “suspicion” for the reason that the latter word is capable of conveying shades of meaning which are inappropriate in this context. As a practical matter, however, there is little, if any, difference between the content of the two words when prefaced by “reasonable” and I have, in referring to authority in this judgment, on occasion treated them as interchangeable.[13] [Footnotes omitted]
[11] (1993) 181 CLR 41.
[12] (1993) 181 CLR 41, 47.
[13] (1993) 181 CLR 41, 67-68.
It is well established that the judge who is to determine the case should decide whether he or she should disqualify himself or herself on the ground of apprehended bias.[14]
[14] Livesey v New South Wales Bar Association (1983) 151 CLR 288, 293.
The issue of a judge disqualifying himself or herself on the basis of apprehended bias may arise in a number of circumstances. The categories of cases which may give rise to an appearance of bias are summarised by Deane J in Webb v The Queen:[15]
The area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories of case. The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.[16] [Footnotes omitted]
[15] (1993) 181 CLR 41.
[16] (1993) 181 CLR 41, 74.
Mr Borick QC’s argument relies upon the third category. The plaintiff’s argument is summarised in the judgment of Bleby J. I agree with Bleby J that no evidence was adduced, nor can it be inferred, from the material tendered on behalf of the plaintiff, that the trial Judge’s findings as to Mrs Roberts’ credit, either in her capacity as author of the report or as a witness at the trial, had damaged or reflected poorly on any of the organisations with which she was associated. Nor would a rational person draw such a conclusion. I agree with Bleby J that there is no logical reason to suggest that the findings of the trial Judge have adversely affected any organisation with which Mrs Roberts may have been associated, either directly or indirectly. I do not accept Mr Borick’s contention that a person against whom an adverse finding has been made, and who is associated with organisations not connected to the subject matter of the litigation, and which have no interest in the outcome of the litigation, will have tainted the reputation of those organisations as a consequence of the adverse finding. I consider that the application fails on that ground alone.
Even if I am incorrect in my conclusion, I do not accept that it has been established that any association I have or have had with the organisations referred to in these reasons might result in a reasonable-minded observer concluding that I might not bring an impartial and unprejudiced mind to the resolution of the appeal. I observe that my association with Flinders University ceased in 1997. As I have indicated, my association with the Independent Theatre Company is in the nature of a subscriber. My association with the Multicultural Forum relates to my support of the objects of the South Australian Multicultural and Ethnic Affairs Commission, and my commitment to support those objectives in any role or association I may have with other organisations.
No material has been produced upon which it could be concluded that my association with any of the organisations referred to gives rise to the apprehension of bias which the plaintiff alleges. The organisations were neither directly nor indirectly involved in the litigation. At no stage did Mrs Roberts suggest that in her capacity as chairperson of the committee she in any way represented any of the said organisations. No reasonable person would conclude, even if they were aware of Mrs Roberts’ role in those organisations, that as a consequence of the findings the organisations were damaged, or that their reputation was reduced in the eyes of an ordinary, reasonable-minded observer.
There is no basis to conclude from my previous association with Flinders University, or my previous and current association with the Multicultural Forum and the Independent Theatre Company, that such association gives rise to any reasonable apprehension of bias. I conclude that I was not disqualified from sitting on this appeal or from continuing to sit.
As the application has not been pursued in respect of Besanko J, and it is accepted that there is no basis to justify the application in respect of Besanko J and, as Bleby J and I have rejected the plaintiff’s application, the application must be dismissed.
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