De Alwis v Stewart
[1997] IRCA 108
•08 April 1997
DECISION NO:108/97
CATCHWORDS
INDUSTRIAL LAW - APPREHENDED BIAS - part-time JUDICIAL REGISTRAR having previously received instructions as counsel from the partner of a newly-formed partnership of a party - test to apply - judging one's own cause
Australian National Industries Ltd v Spedley Securities Ltd(in liquidation)
(1992) 26 NSWLR 411
AWU v Bowen (No. 2) (1948) 77 CLR 601
Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd and another (1996)
135 ALR 753
Bainton v Rijski (1982) 29 NSWLR 539
Barton v Walker [1979] 2 NSWLR 740
Ex parte Blume; re Osborne (1958) SR (NSW)
Bradshaw v Kyle and other, unreported, SCWA, Steytler J, 9 February 1996,
Library Number 960063
Dickason v Edwards (1910) 10 CLR 243
Dimes v Proprietors of Grand Junction Canal (1852) 3 HCL 759
re Finance Sector Union of Australia; ex parte Illaton Pty Ltd (1992) 66 ALJR 583
Fingleton v Christian Ivanhoff Pty Ltd. (1976) 14 SASR 530
re JRL; ex parte CJL (1986) 161 CLR 342
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Metcalfe and others v Permanent Building Society (in liquidation), unreported,
Supreme Court of Western Australia, Full Court, 20 June 1994
Metropolitan Properties Company (FGC) Ltd v Lannon and others [1969] 1 QB 577
Minister for Immigration, Local Government and Ethnic Affairs and another
v Mok Gek Bouy (1994) 127 ALR 223
In the marriage of Murphy and Armstrong (1978) 35 FLR, 482
National Tertiary Education Industry Union v Edith Cowan University, unreported,
IRCA 393/96, Ritter JR, 23 August 1996
R v George and others (1987) 9 NSWLR 527
R v Gough [1993] AC 646
R v The Industrial Court [1966] QR 245
R v Moylan; ex parte Jenkins, [1974] WAR 176
R v Shaw; ex parte Shaw (1980) 55 ALJR 12
R v Watson; ex parte Armstrong (1976) 136 CLR 248
Rogerson v Tchia (1993) 113 FLR 436
S & M Motor Repairs v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358
Stollary v Greyhound Racing Control Board (1972) 128 CLR 509
Vakauta v Kelly (1989) 167 CLR 568
Webb v R (1994) 181 CLR 41
Western Australia v Watson [1990] WAR 248
Winningham v R (1995) 69 ALJR 775
Halsbury's Laws of Australia, paragraph 325-1120
The Laws of Australia, paragraph 2.5[50], footnote 7
VIJITHA GAMINI DE ALWIS -v- HEALY STEWART
WI96/1427
Before : RITTER JR
Place : PERTH
Date of Judgment : 8 APRIL 1997
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
WI 1427 of 1996
B E T W E E N:
VIJITHA GAMINI DE ALWIS
Applicant
A N D:
HEALY STEWART
Respondent
MINUTE OF ORDERS
8 APRIL 1997 PERTH RITTER JR
THE COURT ORDERS THAT:
The hearing of the application under section 170EA of the Workplace Relations Act is adjourned for hearing before another Judicial Registrar on a date to be fixed.
The application be adjourned to a directions hearing before another Judicial Registrar on a date to be fixed to determine the date(s) for the hearing of the application and the way in which the hearing of the application will proceed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
No. WI 1427 of 1996
B E T W E E N:
VIJITHA GAMINI DE ALWIS
Applicant
A N D:
HEALY STEWART
Respondent
REASONS FOR DECISION
8 APRIL 1997 RITTER JR
INTRODUCTION
In this action, Mr de Alwis applies for a remedy in respect of the termination of his employment by the respondent. The remedy he seeks is that of compensation. The application is opposed by the respondent. The respondent was a firm of solicitors practicing in Perth. Mr de Alwis was employed by the respondent as a solicitor on 24 June 1996. On 16 September 1996 the respondent wrote a letter giving Mr de Alwis two weeks' notice of termination. A primary submission of the respondent was that the applicant was, by virtue of section 170CC of the Workplace Relations Act 1996 (the "Act") and Regulation 30B of the Regulations made pursuant to the Act, excluded as an employee covered by the operation of the provisions of Division 3 of Part VIA of the Act. In particular, the respondent alleged that Mr de Alwis was an employee engaged for a probationary period that was specified in advance and which was reasonable having regard to the nature and circumstances of the employment.
Whether or not the employment of Mr de Alwis was excluded from the relevant provisions of the Act was set down for hearing as a preliminary issue.
THE HISTORY OF THE APPLICATION
From there, the action has had an unfortunate history. The hearing was originally listed for one day on 16 December 1996. On that date, Mr de Alwis gave evidence as did a witness for the respondent, Mr Walter Stanwyck, a human resources consultant and principal of the firm Stanwyck & Associates. The respondent's only other witness, Mr John Healy, the principal of the respondent firm, gave his evidence in chief and was partly cross examined. The cross examination could not be finished before Mr de Alwis, representing himself, requested an adjournment stating that he felt very tired and did not want to push himself given a history of serious heart complaint. The matter then adjourned at approximately 5:10 p.m. The earliest that the matter could be re-listed was 10 February 1997.
The matter did not proceed on that date. On the morning of 10 February 1997 Mr de Alwis sent a facsimile to the Court advising that he was not well enough to be present at the hearing. The facsimile said that Mr de Alwis had a high blood sugar level, had awoken during the night with a migraine attack and said that Mr de Alwis was "not at all fit enough to conduct the complainant's (sic) case today". The letter requested that the matter be brought to my attention so that the case could be adjourned and requested information as to the next available hearing date. A very early hearing date was requested in the letter.
A further letter was sent by Mr de Alwis to the Court by facsimile just prior to 10 a.m. on 10 February 1997. This letter cited two other painful conditions that Mr de Alwis was suffering from but said that Mr de Alwis would be fit to attend Court on either 12 or 13 February 1997.
The respondent, represented by its counsel, Mr Morison, attended before the Court that morning. Mr de Alwis was unrepresented. In all of the circumstances there seemed no option but to grant the adjournment requested. The next available date for the Court and the parties was 20 February 1997. The hearing was then adjourned to 9:30 a.m. on that date. I also made an order, at the request of Mr Morison, that on or before 20 February 1997 the applicant provide a copy of a medical certificate explaining his absence on 10 February 1997 to the Court and to the respondent. (This order was not complied with in the time permitted.) I also made an order that any further adjournment application be made orally before the Court and after due notice to the respondent.
The hearing of the application continued on 20 February 1997. Despite the order previously made concerning the time at which the hearing was to start, the hearing did not commence until 10 a.m.. Mr de Alwis continued with his cross examination of Mr Healy. The hearing continued until approximately 2:30 p.m.. There had been no luncheon adjournment although there had been some breaks during the course of the morning. At approximately 2:25 p.m. I ruled that Mr de Alwis' cross examination of Mr Healy come to an end within 30 minutes. By that time, Mr Healy had already been subject to a lengthy cross examination, given the context of the preliminary question that had to be determined. I had also earlier indicated to Mr de Alwis that, in light of the nature of the cross examination, I was exercising my powers under the Evidence Act (C'wlth) to limit his further cross examination of Mr Healy to one hour. The allowance of a further period of 30 minutes was to enable Mr de Alwis to cover one relevant matter on which he had not attempted, to date, to cross examine Mr Healy. Upon my making this ruling, Mr de Alwis requested an adjournment on the basis of his medical condition. I did not grant the adjournment but made orders which would allow Mr de Alwis to apply to continue with his cross examination of Mr Healy at a later date on certain conditions. The full text of the orders are reflected in the Court record. It is sufficient to say at this stage that I ordered that any application to further cross examine Mr Healy or to adduce further evidence by the applicant be made by notice of motion to be filed and served within seven days, and supported by medical evidence on affidavit. In the absence of any such application, I ordered that the respondent file and serve its closing written submissions within 14 days of 20 February 1997, with the applicant to file and serve written submissions 14 days thereafter.
The applicant did not make any application of the type referred to above, although the Court was informally advised that Mr de Alwis had been admitted to hospital for tests. The respondent filed its closing written submissions on 7 March 1997. I have not considered these written closing submissions in light of the events set out below.
THE HEARING ON 13 MARCH 1997
Due to certain information that came to my attention, I arranged for the application to be listed for directions before me on 13 March 1997.
On that date, I provided Mr de Alwis and Mr Morison with a note as follows:
" As well as being a part-time Judicial Registrar of the Court, I practice as a barrister at Wickham Chambers. In October and November 1996, I received instructions to advise Pynt & Associates, Solicitors, in relation to a state industrial relations matter. I provided the advice sought.
In February 1997 I wrote to Pynt & Associates to enquire as to the progress of the matter and see if it were appropriate to render an account. I was telephoned by Ms Elizabeth Lee, a solicitor at Pynt & Associates, on 25 February 1997. In the course of the conversation, Ms Lee mentioned that it was appropriate to render an account for the work done. She also mentioned that Pynt & Associates had merged with Healy Stewart. This was my first awareness of this fact.
This action involves the termination of employment of Mr De Alwis by Healy Stewart. I have heard the evidence on a preliminary issue, but have not yet received closing submissions.
Given the amalgamation between Healy Stewart and Pynt & Associates, my relatively recent working relationship with a solicitor at Pynt & Associates, and the account I am entitled to render to that firm, it could be seen that I have a relationship with one of the parties, which although indirect, may be such that I ought not continue to determine this matter. I think it appropriate to bring the issue to the attention of the parties and receive submissions on the appropriate course to take."
I then adjourned for a few minutes so that the parties could consider their positions. I indicated that I would be predisposed towards adjourning the matter if the parties wished to consider their positions more fully. After a brief adjournment, the parties indicated that this was the way in which they would like to proceed. Accordingly, the application was further adjourned until 2 April 1997. I indicated to both parties that it would be of assistance if they could advise the Court of their position prior to the hearing on 2 April 1997. The respondent obliged, filing on 25 March 1997 an outline of submissions prepared by Mr Morison. By the outline, the respondent submitted that I ought not to withdraw from the hearing the case. The outline was clear and most appreciated. The outline was supported by an affidavit of Ms Elizabeth Lee sworn on 25 March 1997. Prior to the hearing, the applicant gave no indication of his attitude to the issues that I had raised.
The affidavit of Ms Lee, omitting formal parts, is as follows:-
"1.On 25 October 1996, we received urgent instructions from our client in respect of a dispute with a union.
2. The return date of the Summons was 30 October 1996.
3.A facsimile dated 28 October 1996 and our letter dated 4 November 1996 were sent to Mr Mark Ritter at Wickham Chambers for advice in relation to our client's position.
4.On 11 November 1996, we received a facsimile transmission from Athol C. Gibson & Associates informing us that they had received instructions to take over the conduct of the matter on the client's behalf. Annexed hereto and marked "ESHL1" is a copy of a facsimile from Athol C. Gibson & Associates to Pynt & Associates dated 11 November 1996. The relevant references to the client has been deleted to preserve client confidentiality.
5.On 12 November 1996, I arranged for the file to be handed over to Athol C. Gibson & Associates.
6.On or about 22 November 1996, we received written advice from Mr Ritter as to our client's position. As we no longer had instructions in relation to the matter, we forwarded the letter to A.C. Gibson & Associates. A copy of the letter of advice from Mr Ritter was not retained.
7.I verily believed that A.C. Gibson & Associates would follow the matter up with Mr Ritter upon receipt of this letter.
8.On 5 March 1997, we received a letter from Mr Ritter dated 21 February 1997 enquiring as to the status of the proceedings.
9.I spoke to Mr Ritter on 5 March 1997 and informed him that his letter of advice was forwarded to A.C. Gibson & Associates and that I was unaware that A.C. Gibson & Associates had not contacted him in relation to the advice provided to the client.
10.As the debt was incurred by Pynt & Associates, I thought it was appropriate that he rendered an account to Pynt & Associates.
11.The merger between Pynt & Associates and Healy Stewart took place on 1 March 1997.
12.I have enquired with the Principal of Pynt & Associates, Mr Stephen Pynt and ascertained that there are no matters or files carried over to Healy Pynt from Pynt & Associates and Healy Stewart involving Mr Ritter."
It can be seen that there is a discrepancy between the date referred to in paragraph 9 of the affidavit of Ms Lee and the date referred to in paragraph 2 of my note to the parties. However, nothing turns on this difference.
In addition to the matters raised by my note and by the affidavit, it seems also relevant to indicate that the matter on which I received instructions from Pynt & Associates was a matter involving the W.A. Industrial Relations Commission and, obviously, not a matter relating to the Court or its jurisdiction. I should also indicate for completeness that some preliminary advice was forwarded to Pynt & Associates in request to the original facsimile dated 28 October 1996 and referred to in paragraph 3 of the affidavit of Ms Lee. Finally, I also mention in relation to paragraph 12 that the information Ms Lee gained from her inquiry to Mr Pynt is correct.
THE HEARING ON 2 APRIL 1997
At the hearing on 2 April 1997 Mr de Alwis strongly submitted that I ought not continue to determine the application. Indeed, Mr de Alwis also submitted that I ought not to decide the issue as to whether it was appropriate for me to continue to determine the application. It was Mr de Alwis' alternative submission that if I did determine this question, then I ought decide it in favour of not continuing to determine the application. Mr de Alwis submitted that if I were to continue to determine the application, then I would be, in effect, judging my own cause and/or my continued hearing of the application would involve a reasonable apprehension of bias. Mr de Alwis did not, with respect, indicate with any precision or particularity what it was about the facts, as disclosed above, which would lead to these submissions. He preferred to make emotive and generalised submissions such as that "the foundations of the Commonwealth Law Courts building would crack" if I were to continue to determine the application, that I was now "entangled in the web of the dispute", that I was involved in the "dust of the arena of the dispute" and that because of the facts disclosed I may have contact with Mr Healy and any such contact would lead a reasonable person "to wonder what was going on" and provide a reasonable apprehension of bias. With respect, I did not find any of these generalised submissions to be of any great assistance.
As stated, the respondent, through Mr Morison, maintained its position that I ought to continue to determine the application. Mr Morison submitted that:-
The matter on which I was instructed by the firm of Pynt & Associates was not on-going.
If an account was submitted to Pynt & Associations, then that firm was liable for the payment of the account and not the new partnership of Healy Pynt.
Healy Pynt may, in the future, elect to brief me as a barrister.
Mr Morison submitted, with some cogency, that there could be no reasonable apprehension of bias in these circumstances. Mr Morison submitted that this would remain so even if an account was rendered to Pynt & Associates and I needed to communicate with Ms Lee, now an employee of Healy Pynt, as to the payment of the account. With respect to point number 3, Mr Morison submitted that the prospects of myself obtaining a brief in my private capacity from a law firm could not reasonably be regarded as giving rise to any predisposition by me in favour of a lawyer or law firm appearing before me as a party. If this were to give rise to a reasonable apprehension of bias, then there would be no case involving a law firm as a party which a part-time judicial registrar of the Court, who was also a barrister in the jurisdiction, could hear.
As to the law, Mr Morison cited Livesey v New South Wales Bar Association (1983) 151 CLR 288 and Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70. Mr de Alwis also cited a number of authorities, some of which will be specifically referred to later in these reasons. As I indicated during the hearing, the real question was not as to the law, which is reasonably settled, but whether the facts of the relationship with one of the parties was such as to make my continued determination of the application inappropriate.
PRELIMINARY ANALYSIS OF THE FACTS
It is clear that the matter on which I was engaged to provide advice to Pynt & Associates is not a continuing one, in the sense that the client of Pynt & Associates no longer retains that firm nor instructs me through other solicitors. However, the relationship with Pynt & Associates endures. I have not as yet rendered an account to Pynt & Associates for the advice provided. By the affidavit of Ms Lee, there appears to be no reason, legally or ethically, why this could not be done. As the affidavit of Ms Lee indicates, if an account were rendered, it ought to be rendered to Pynt & Associates, which was the firm who instructed me to provide the advice. If an account were rendered, Pynt & Associates would be at least morally, if not legally, obliged to pay the account. Mr Pynt is now the partner of Mr Healy in the partnership of Healy Pynt. Ms Lee is the employee of Healy Pynt, of which Mr Healy is one of the principals. On either 25 February 1997 or 5 March 1997, I had a telephone conversation with Ms Lee as to whether it was appropriate to render an account for the advice given. Either at the time of the conversation or shortly thereafter, Ms Lee became an employee of Healy Pynt.
Mr de Alwis submitted that there was a defect in the evidence presented by the respondent in that there was no affidavit by or on behalf of Athol C. Gibson & Associates. As I pointed out to Mr de Alwis during the course of the hearing, I do not regard this as being material. I do not consider that there is anything on which an affidavit from Athol C. Gibson & Associates would assist. Mr de Alwis also complained about the hearsay nature of paragraph 12 of the affidavit. I indicated to Mr de Alwis that I did not consider that there was any difficulty created by paragraph 12. In any event, as I pointed out to Mr de Alwis, the contents of paragraph 12 are factually correct, insofar as they relate to other instructions to me from Pynt & Associates and Healy Stewart.
Mr de Alwis also submitted that Healy Pynt would have taken over the liabilities of Pynt & Associates. I pointed out to Mr de Alwis that there was no evidence of this. Mr de Alwis then submitted that I could take judicial notice of the fact. I indicated that, in my opinion, this was not a notorious fact of which one could take judicial notice. In my view, whether or not a newly-created partnership assumes the liabilities of an earlier entity is a question of fact in each case. There is no evidence which assists in establishing the fact in this case. In such circumstances, therefore, I cannot simply assume that Healy Pynt has assumed any liabilities of Pynt & Associates.
THE DUTY TO DETERMINE THE ISSUE
As set out earlier, Mr de Alwis submitted that I ought not decide the question of whether I should continue to determine the substantive application. I reject this submission. It is well established that any application for a judicial officer to disqualify himself or herself on the basis of apprehended bias or like grounds should be first heard and decided by that judicial officer. This is explicitly stated in some cases and in others can be gathered by the fact that the effected judges have heard the applications to disqualify.
In Livesey at page 294, the Full Court of the High Court indicated that a judicial officer should determine the issue himself or herself. This has been consistently applied since that case. See for example, Halsbury's Laws of Australia, paragraph 325-1120 and The Laws of Australia, paragraph 2.5[50], footnote 7. Halsbury cites Barton v Walker [1979] 2 NSWLR 740 and also Bainton v Rijski (1982) 29 NSWLR 539. The Laws of Australia cites the authority of Australian National Industries Ltd v Spedley Securities Ltd(in liquidation) (1992) 26 NSWLR 411. At page 436 of that case, Mahoney JA said, "The question is one to be decided by the judge himself".
Merkel J in Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd and another (1996) 135 ALR 753 at 756 said that:
"The fair-minded and objective bystander may see it as somewhat anomalous that such applications as the present, by their nature, must always be determined, at least in the first instance, by the judge or tribunal said to be the subject of the apprehension. However, when it is appreciated that the inquiry is entirely objective, any anomaly in that judge or tribunal making the decision disappears."
Numerous other cases either explicitly or implicitly endorse the procedure whereby the effected judicial officer must determine the question of whether there is any reasonable apprehension of bias; see, for example, Western Australia v Watson [1990] WAR 248, Rogerson v Tchia (1993) 113 FLR 436, Metcalfe and others v Permanent Building Society (in liquidation), unreported, Supreme Court of Western Australia, Full Court, 20 June 1994; re Finance Sector Union of Australia; ex parte Illaton Pty Ltd (1992) 66 ALJR 583; re JRL; ex parte CJL (1986) 161 CLR 342, Webb v R (1994) 181 CLR 41 and Winningham v R (1995) 69 ALJR 775.
This was the procedure which I invoked in National Tertiary Education Industry Union v Edith Cowan University, unreported, IRCA 393/96, Ritter JR, 23 August 1996, without objection from either party. The respondent through Mr Morison had no objection with my taking this course.
OUTLINE OF THE APPROPRIATE TEST
In Winningham, the High Court (Dawson, McHugh and Gummow JJ), in allowing a special leave application and appeal, said, in a judgment delivered by Dawson J that:
"the test has been expressed in different ways, but it requires the question to be asked, whether in all the circumstances the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the matter". (Page 775)
His Honour said that the law on the subject was well settled and cited for example, Webb at page 47.
The page of Webb to which His Honour referred was a page from the joint judgment of Mason CJ and McHugh J. The page included the following passage:-
"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 pre-judged or might pre-judge the case . . . the principle behind the reasonable apprehension or suspicion test is that it is of fundamental importance that justice not only be done, but should manifestly and undoubtedly be seen to be done." (Omitting footnotes)
One of the footnotes to this passage of the judgment of their Honours was to the earlier decision of the Court in Livesey at pages 293 - 294. There, the Court said, following R v Watson; ex parte Armstrong (1976) 136 CLR 248 at pages 258 - 263:-
"That principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it."
In Webb, Deane J at page 74 said that:-
"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 pre-judgment. 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 pre-judgment 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 circumstances gives rise to the apprehension of bias". (Footnotes omitted)
Although Deane J was in the minority in Webb, his dissent was on the application of principle rather than the enunciation of it; see Minister for Immigration, Local Government and Ethnic Affairs and another v Mok Gek Bouy (1994) 127 ALR 223, per Sheppard J, page 243. As indicated by Sheppard J, the statements of principle which are propounded by Deane J are in accordance with the mainstream of authority.
THE OBLIGATIONS OF JUDICIAL OFFICE
The authorities also make it clear that a judicial officer has an obligation to sit and hear the cases allocated to him/her and should not lightly accede to an application to exclude themselves on the basis of an apprehension of bias. Therefore, merely because such an application is made or a party asserts that it has an apprehension of bias, is insufficient for the judicial officer to excuse themselves. In Stollary v Greyhound Racing Control Board (1972) 128 CLR 509, Barwick CJ at 519 said that the test of apparent bias does not, of course, warrant fanciful and extravagant assertions and demands.
In re JRL, Mason J at page 352 said:-
"It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in the particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice . . . although it is important that justice be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."
Indeed, in Livesey itself at page 294, the Court said that:
"It would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court".
This point was reinforced in Metcalfe; see the judgment of Malcolm CJ at page 24. Anderson J, who essentially agreed with the reasons of the Chief Justice, said at page 25 that:-
"Practitioners should not lightly request a judicial officer to disqualify himself on the ground of a reasonable apprehension of bias. Even although there might not be, in such a request, an allegation of actual bias, still the request carries the suggestion that the judge might not decide the case impartially or without prejudice. That is, of course, a serious matter. The suggestion should not made unless there is a firm basis for it, if for no other reason than it ought not to be acceded to by the judge concerned unless the existence of a reasonable apprehension is firmly established to him. It is the judge's duty to sit on the cases assigned to him and it is in the public interest that he discharge that duty unless there is a good reason that he not do so."
At page 25, Anderson J indicated that it would be quite wrong for an application for disqualification to be made for some collateral, tactical purpose.
THE APPLICATION OF THE TEST
The statement of the appropriate test is relatively simple; it is its application which often creates difficulties. The determination of whether there is a reasonable apprehension of bias involves questions of judgment, evaluation and opinion. Different minds may and will differ on these issues; see Aickin J in R v Shaw; ex parte Shaw (1980) 55 ALJR 12, at page 16. The High Court in Livesey at page 294 cited and approved the judgment of Aickin J in Shaw on this point.
Kirby P in Australian National Industries Ltd v Spedley Securities (in liquidation) at 417 said that:
"It is no disrespect to the judges who have ventured their opinions on the resolution of problems such as this to identify a certain ambivalence in the expression of the tests which are to be applied. One decision upholds the asserted apprehension of bias. The next dismisses it. One decision asserts the duty of the judicial officer to sit and not disqualify himself or herself. The next reverses the decision of a judge to sit, on the ground of apprehended bias. As in this case, different judges considering the same facts reach different conclusions. To say this merely acknowledges the unique features of each case; the differing composition of the courts and tribunals concerned; the inescapably different predilection and sensitivities of judges seeking to interpret the response of the hypothetical reasonable or fair-minded observer, and the ebb and flow of judicial opinion over time - there is no final ultimate formula which can be easily applied to dispose of cases such as the present. In each case, the judicial officers concerned, whether at first instance or on appeal, must apply the well-worn words. But in the end, the response which each gives may be more instinctive and less deductive than the reasoning of the courts has tended to suggest."
This passage was cited with approval by Steytler J in Bradshaw v Kyle and other, unreported, SCWA, 9 February 1996, Library Number 960063 at pages 12 - 13. See also Aussie Airlines, page 757.
THE ISSUE BEFORE THE COURT
Having regard to the four categories referred to by Deane J in Webb quoted above, if there is a reasonable apprehension of bias in this case it would be of the third category and/or the first. That is, apprehension of bias by reason of an association or relationship between myself and Healy Stewart, whether direct or indirect.
As set out earlier, Mr de Alwis also submitted that I should also disqualify myself on the basis that if I were to continue to determine the case I would be acting as a judge in my own cause. I next turn to this issue.
JUDGING ONE'S OWN CAUSE
The requirement that no one shall be a judge in his/her own case or cause, based on the Latin maxim, nemo debet esse judex in propria sua causa, (sometimes expressed as nemo judex in sua causa), is said to be one of the two essential requirements of natural justice, the other being an opportunity to be heard; see G.A. Flick, Natural Justice, 2nd Edition, 1984, page 147; C. Enright, Judicial Review of Administrative Action, 1985, page 457; H.W.R. Wade and C.F. Forsythe, Administrative Law, 7th Edition, 1994, page 464. The requirement based on the maxim finds expression in the doctrine of exclusion of a decision maker on the basis of actual or apprehended bias.
Deane J in Webb at pages 64 and 65 said, in the context of disqualification on the basis of interest, the general rationale underlying the doctrine of bias is reinforced by the principle expressed in the maxim that nobody may be judge in his own cause.
In the footnotes to this part of His Honour's judgment, Deane J cited Dickason v Edwards (1910) 10 CLR 243 at 259, AWU v Bowen (No. 2) (1948) 77 CLR 601 at 631 and R v Gough [1993] AC 646 at page 661. What these cases and others indicate is that where a judicial officer has a sufficient pecuniary or other interest in the case, such as it could be said that he or she is in effect judging his or her own case, the judge ought not determine it. One category of such cases is where the adjudicator is also the prosecutor or complainant. Enright at paragraph 17.4.5 says "this is nemo debet esse judex in propria sua causa in its most literal meaning - no one shall be a judge in his own case".
Isaacs J in Dickason at page 259 referred to disqualification on the basis of incompatibility:
"If it is incompatible for the same man to be at once judge and occupy some other position which he really has in the case, then prima facie he must not act as a judge at all. That is a fundamental and essential principle of justice".
An example of this is in AWU v Bowen where the secretary of the Australian Workers Union presented to the council of the union as "prosecutor" charges against other members of the union with whom the secretary had been engaged in a controversy. As a result of these charges, the members were expelled from the union. The secretary took an active part in the hearing of the charges as a member of the council. Dixon J at page 631 said:-
"It is not in accordance with the principles of natural justice to have present as a member of the tribunal a person who has promoted the charge and supports it as the prosecutor or one who is invincibly biased against the accused as a result of his participation in the controversy".
Another example is R v Moylan; ex parte Jenkins, [1974] WAR 176. There, a writ of certiorari was granted against a decision of the WA Fire Brigades Board on a finding of breach of discipline, when the charge was laid and also heard by the Chief Officer of the Fire Brigade.
As Deane J said in Webb at page 65, another aspect of the maxim that nobody may be judge in his own cause is that a person may not sit in a judicial capacity where he has a pecuniary interest in the outcome of proceedings. His Honour cited R v Gough at pages 661, 667 and 673. Deane J there indicated that:
"There is one special class of case within that first category in which, subject to the possible operation of the rule of necessity, the effect of that principle is that disqualification is automatic . . . . That special class consists of cases in which the judge, juror or statutory officer has a direct pecuniary interest in the outcome of the proceedings. In such cases, public confidence in the administration of justice requires that there be disqualification regardless of the particular circumstances." (footnotes omitted)
An often-cited illustration of this is the case of Dimes v Proprietors of Grand Junction Canal (1852) 3 HCL 759. There a decision of the Lord Chancellor was set aside by the House of Lords because the Lord Chancellor owned several thousand pounds of shares in a public company, the proprietors of which were involved in the application before the Lord Chancellor, in attempting to confirm their title to land and obtain an injunction against the applicant from blocking a canal development.
If, however, the pecuniary interest is too remote or speculative, then there is no automatic disqualification; see for example Fingleton v Christian Ivanhoff Pty Ltd. (1976) 14 SASR 530, per Bray CJ at page 535. In such circumstances, however, disqualification may still occur where there is a reasonable apprehension of bias; see Fingleton and also R v The Industrial Court [1966] QR 245. In the latter case, the Full Court of the Supreme Court of Queensland held that there was no real likelihood of bias where the President of the Industrial Court heard a case involving a company in which his wife had a shareholding.
On the facts of this case, it cannot be said that I have a direct pecuniary interest in the outcome. The application is between Mr de Alwis and Healy Stewart. I have no pecuniary interest in either of these parties. Further, there is no incompatibility of the type mentioned by Isaacs J in Dickason in my determining this case. I have no interest in the outcome of the proceedings of the type illustrated by the cases of Moylan and Bowen. In short, in my opinion, this argument by Mr de Alwis is ill conceived. There is no basis on which it could be said that I am judging my own cause to warrant disqualification.
REASONABLE APPREHENSION OF BIAS - THE ISSUE
OF RELATIONSHIP
That is not to say that there may not be a reasonable apprehension of bias in this case. It is to simply record that such an apprehension could not be based on the suggestion that I have some pecuniary interest in the outcome of the case or would be in effect determining my own cause. As stated earlier, the argument of a "reasonable apprehension of bias" is based upon my indirect relationship with one of the parties.
Enright in Judicial Review of Administrative Action at paragraph 17.4.9 says that:-
"Bias can arise outside the hearing by some attribute or relationship of the decision maker which brings to the hearing a reasonable suspicion of bias. Possible causes of this are financial and business dealings, employment, family connections or personal and political views. These can raise the possibility or suspicion that for love or money the decision maker was biased."
An example of this is the case of Ex parte Blume; re Osborne (1958) SR (NSW) in which the husband/representative of a lessor who had applied to the Fair Rents Board for an increase in rent, had their determination heard by a stipendiary magistrate who was a friend of the lessor's husband/representative.
Similarly, the Court of Appeal held that there ought to have been disqualification on the basis of apprehended bias in Metropolitan Properties Company (FGC) Ltd v Lannon and others [1969] 1 QB 577 (although the test was differently expressed). This case involved the rent assessment of flats in Oakwood Court in London. The group of companies which owned Oakwood Court also owned flats at Regency Lodge. The chairman of the Rent Assessment Committee resided at Regency Lodge with his parents. The chairman had advised his father about the fair rent of his flat and, as a solicitor, had been advising other Regency Lodge tenants in dispute with their landlords. The chairman's partner had also done this. The Court of Appeal accepted the appellant landlord's submission that the connection between the Oakwood Court and Regency Lodge flats was so close that the rents determined for Oakwood Court would have a powerful effect on a determination to be made for Regency Lodge. The Court held that though there was no direct pecuniary interest involved, there was an apprehension of bias. Lord Denning at page 599 said that the Court must look at the impression given to other people; "justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking 'the judge was biased'". At page 600 Lord Denning indicated that it did not make any difference that the chairman's father was the tenant at Regency Lodge and not the chairman, given that the chairman was living with his father and assisting him in his case. Lord Denning said:
"No man can be an advocate for or against a party in one proceeding, and at the same time sit as a judge of that party in another proceeding. Everyone would agree that a judge, or a barrister or solicitor (when he sits ad hoc as a member of a tribunal) should not sit on a case to which a near relative or a close friend is a party. So also a barrister or solicitor should not sit on a case to which one of his clients is a party. Nor on a case where he is already acting against one of the parties. Inevitably people would think he would be biased".
Where a member of a tribunal or court has a past association with one of the parties to an action, it is necessary to examine the nature of that relationship before deciding whether the judicial officer ought disqualify themselves. For example, in WA v Watson, the Full Court of the Supreme Court of Western Australia upheld the refusal by a trial judge to order his disqualification when he had acted for the debt collection firm of the plaintiff and a witness to the proceedings before His Honour on about ten occasions, some 25 years previous. To similar effect, the Full Court of the Family Court in, In the marriage of Murphy and Armstrong (1978) 35 FLR, 482, held that the judge at first instance ought not to have disqualified himself when His Honour acted for one of the parties some seven years previous at the very early stages of the matrimonial dispute (page 488).
This case is cited in The Laws of Australia, paragraph 2.5[74], where the learned authors state that a relationship between the decision maker and a participant in proceedings may generate a reasonable apprehension of bias because of the proximity of the relationship or its connection with the issues. The authors state that the mere fact of some relationship is insufficient. The proximity, duration, intensity, nature and likely incidents of the connection are relevant.
As said by Kirby P in S & M Motor Repairs v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at page 368:-
"The determination of whether there is, by the stated test, a reasonable apprehension of bias depends upon the full understanding of the facts from which it is suggested that such apprehension arises. Insofar as such bias is said to arise from a relationship between the parties, it is clearly relevant to know the duration of that relationship, its intensity and nature, and the time that has elapsed between its last renewal and the performance of judicial functions said to be affected by it".
The judgment of Merkel J in Aussie Airlines contains a discussion of these issues, which is of great assistance. In that case, His Honour was faced with an application that he disqualify himself from hearing a trial on the ground that senior counsel briefed to appear for the first and second respondents was someone with whom His Honour had a long-standing personal, professional and financial association. His Honour reviewed the law on apprehended bias, referred to the judgment of Deane J in Webb and Enright's text, Judicial Review of Administrative Action. At page 760, His Honour said that cases on disqualification by reason of association involve the question of
"whether its nature and extent in the circumstances of the particular case resulted in the line being crossed. More precisely the line to be crossed in each case is defined as whether the association is such that a reasonable bystander can say the adjudicator might not bring an impartial and unprejudiced mind to the resolution of the case. There must be something in the nature or the extent of the association which leads that bystander to conclude, whether for friendship, love, money, fear, favour or otherwise, that the adjudicator might be influenced by it. Where the association in question is trivial, remote or indirect, the Courts might conclude that it is not a disqualifying one".
At page 761, His Honour said that:
"In my view, as with the cases considering personal, family and financial interests, the decision in the cases dealing with professional association between an adjudicator and litigant demonstrate that the Courts do not take a hypothetical or unrealistic view of an association relied upon in a disqualification application. In particular they appear to accept that the reasonable bystander would expect that members of the judiciary will have had extensive professional associations with clients but that something more than the mere fact of association is required before concluding that the adjudicator might be influenced in his or her resolution of the particular case by reason of the association. Although the test is one of appearance, it is an appearance that requires a cogent and rational link between the association and its capacity to influence the decision to be made in the particular case. In the absence of such a link it is difficult to see how the test for disqualification as stated in Livesey can be satisfied".
His Honour determined that he should not disqualify himself. At page 768 His Honour said that the type of objection before him "may well have substance if the association was such that the judge was for some reason beholden to counsel or if there was a situation of fear, favour or some capacity to exert power in relation to the association. Such situations may arise if, for example, a judge is indebted to counsel, or has otherwise been financially assisted by counsel, in respect of significant sums payable at call".
It is with due regard to the principles established by and expanded in the above judgments, that I need to determine the issue before me.
THE ELEMENTS OF THE TEST OF APPREHENSION OF BIAS
The authorities referred to earlier indicate:-
All of the circumstances of a case need to be taken into account. As Street CJ said in R v George and others (1987) 9 NSWLR 527 at 536, "it is not enough that there be some apprehension to some uninformed and uninterested person. It must be reasonable apprehension and it must be an apprehension which would be apparent to or entertained by a reasonable person with a full comprehension of the facts of each case".
However, the hypothetical reasonable observer should not have attributed to him a level of sophistication which may be enjoyed by judges and other lawyers, or by especially educated or informed citizens; ANI v Spedley Securities, per Kirby P page 419, Vakauta v Kelly (1989) 167 CLR 568 per Toohey J page 585.
The apprehension of bias can be either that of the parties and/or hypothetical members of the public. However, as the judgment of Sheppard J in Mok Gek Bouy at page 244 indicates, there is no difference in looking at the matter from either view point.
It is enough that the parties or the public might entertain an apprehension of bias.
The apprehension of bias must be a reasonable apprehension.
The reasonable apprehension is not of bias, but that the judicial officer might be biased.
The test of bias seems to be generally that the judicial officer may not bring an impartial and unprejudiced mind to the resolution of the question involved in the hearing of the case.
THE DETERMINATION OF THE ISSUE
I have earlier set out the relevant facts and law at length. I am quite satisfied that I could bring an impartial mind to the determination of this case. That, however, is not the test. The test is whether there is a reasonable apprehension of bias by reasonably-informed members of the public. In this instance, the question is whether my indirect relationship with Healy Stewart is such as to give a reasonable apprehension of bias.
In my opinion the following facts are crucial to the determination of the issue:-
An account to Pynt & Associates has not as yet been rendered. There is no legal or ethical reason why one should not be rendered. However, if an account is rendered, the amount of the account will need to be determined.
If the account is rendered, it will be rendered to Pynt & Associates. Mr Stephen Pynt is the partner of Mr John Healy, a former principal of Healy Stewart, the respondent in this case. In addition, Mr Healy is the principal witness for the respondent. His credibility is a matter of some importance.
If an account were rendered, it would be directed to Ms Lee, a former employee of Pynt & Associates and now an employee of Healy Pynt.
If an account were rendered, Pynt & Associates would have a moral, if not a legal, obligation to pay the account.
If the account were not paid, I would need to make a decision as to what to do about this. This could ordinarily involve written or oral communication with Ms Lee and/or Mr Pynt. If the account remained unpaid, I could inform the Bar Association and seek their intervention in accordance with the Bar Rules. This ordinarily involves, at least in the first instance, an approach by the relevant officer of the Bar Association to the firm concerned. If the account then remained unpaid, the relevant officer of the Bar Association may advise all members of the Bar of the fact of the non-payment of the account.
The matter in which I advised Pynt & Associates arose in late October and November 1996. My hearing of this application commenced on 16 December 1996 and has continued ad hoc from then. The relationship between Pynt & Associates and myself is not remote or distant, as a matter of time. Indeed, to the extent set out above, it endures. The most recent communication was either in late February or early March of 1997.
Having regard to all of the facts and circumstances, I am of the opinion that it is not appropriate for me to continue to determine this action. In my opinion, the proximity of the relationship between myself and Mr Pynt and Ms Lee on the one hand and Mr Pynt and Ms Lee and Mr Healy on the other hand is such as to have the effect that a reasonable person could apprehend bias. The relationship between Mr Pynt and Mr Healy, being one of partnership, is very proximate. So is that between Ms Lee and Mr Healy. As at present, I need to determine whether and if so what account to render to the partner of the principal, and main witness, of the respondent. The partner, Mr Pynt will then be morally or legally indebted to me. If the account is not paid within reasonable duration, I will need to determine what action to take. Each of these matters is such as to cause an objective unease about the situation such that I think it inappropriate to continue to determine the case. This is my instinct, to use the expression of Kirby P in ANI at page 417 in the passage quoted above. As the authorities I have referred to earlier indicate, the perception of bias where there is a financial link between party and adjudicator, is a strong one. In this case the financial link is indirect, but it is not too remote, in my opinion, to be disregarded. That Mr Healy's partner has a contingent liability to me and will need to decide when and how the liability is met, are factors which combine to forge a rational link between my association with Mr Healy and its capacity to potentially influence my decision; see Merkel J in Aussie Airlines at page 761, as quoted above. Where the rational link appears the line of acceptable appearance is crossed. To use His Honour's word, there is in this case some way in which it could be said that potentially I am "beholden" to Mr Healy's partner. The close proximity of the partnership relationship ultimately means that I think I should not further determine the case.
It could be argued, having regard to the stage that the proceedings have reached, that I could dispose of the case and then make a decision as to whether to render an account and if so, the amount thereof. However, in my opinion, there would remain a reasonable apprehension of bias in that situation also. This is that it could be said I may favour the respondent in the hope that if an account is rendered after judgment is delivered, the respondent's partner will be well disposed to ensure that it is promptly paid.
In addition to the above, there are aspects of the indirect relationship between myself and the respondent which could give rise to a lack of coincidence between the duty to impartially and independently determine the case before me and my position as a barrister in private practice. Justice and judicial independence demands that judicial thought and practice be free from the clutters of such potential conflicts and influences. This provides another reason why it is not appropriate, in my opinion, for me to continue to determine this application.
I will make an order that the application be adjourned to a directions hearing before another Judicial Registrar to determine a new hearing date(s) for the application and the way in which the application will proceed.
It is most regrettable that the above-described circumstances have combined to halt my determination of this application at the stage that they have. However, justice must be manifestly seen to be done and cannot be subjugated to the desire for a smooth and expedient determination of the application.
I certify that this and the preceding twenty-five (25) pages
are a true copy of the reasons for decision of
Judicial Registrar Ritter.
Associate:
Date: 8 April 1997
APPEARANCES
Applicant (in person): Mr V.G. de Alwis
Counsel for the Respondent: Mr I. Morison
Solicitors for the Respondent Healy Stewart
Date of hearing: 2 April 1997
Date of judgment: 8 April 1997
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