(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.
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Cornwall v Rowan (No 3) [2006] SASC 110
Case
[2006] SASC 110
Decision Date
CaseChat Overview and Summary
In the matter of Cornwall v Rowan (No 3), the plaintiff sought to set aside judgments of the Full Court of the Supreme Court of South Australia. The plaintiff alleged that two members of the Full Court were disqualified from hearing the appeal due to apprehended bias arising from their associations with certain organisations and individuals involved in the litigation. The primary focus was on the alleged connections between a witness, Mrs Roberts, and the judges, as well as the associations of the judges and their spouses with various organisations.
The legal issues central to this case revolved around the principles of apprehended bias and whether the judges' associations with the organisations and individuals involved in the case were substantial enough to disqualify them from hearing the appeal. The court had to determine if the nature of the asserted associations was such that it could reasonably lead to an apprehension of bias on the part of the judges. The judges in question were required to demonstrate that their associations were insubstantial, indirect, and tenuous, thereby precluding any real apprehension of bias.
The Full Court thoroughly examined the nature and extent of the associations in question. Each judge disclosed their connections with the organisations mentioned in the plaintiff's affidavits. The Court found that the relationships were indeed insubstantial, indirect, and tenuous. The judges had no direct or significant involvement with the parties or the witness in the context of the litigation. The associations were primarily through membership in various organisations and casual social encounters, which were insufficient to give rise to any reasonable apprehension of bias. Consequently, the Full Court concluded that there was no basis for disqualification, and the application to set aside the judgments was dismissed.
The Full Court's decision resulted in the dismissal of the plaintiff's application. The Court maintained that the judges were not disqualified from hearing the appeal due to the insubstantial nature of their associations with the parties and witness involved. The Full Court's reasoning underscored the importance of ensuring that any apprehension of bias is based on substantial, direct, and significant connections, which was not the case here.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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.APPENDIXSTATEMENT 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.