FKP17 & Ors v Minister for Immigration & Anor
[2018] FCCA 2053
•27 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FKP17 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2053 |
| Catchwords: PRACTICE AND PROCEDURE – Application for recusal – whether manner in which judge presided over a hearing gave rise to a reasonable apprehension of bias – application for recusal refused. |
| Legislation: Evidence Act 1995 (Cth), ss.118, 119, 122, 135 |
| Cases cited: Australian Competition and Consumer Commission v Cadbury Schweppes Pty Barakat v Goritsas (No 2) [2012] NSWCA 36 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Galea v Galea (1990) 19 NSWLR 263 Isbester v Knox City Council [2015] HCA 20 Johnson v Johnson [2000] HCA 48 Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3 Ltd [2009] FCAFC 32 Macedonian Orthodox Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & Anor. [2006] NSWCA 160 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 RPS v The Queen (2000) 168 ALR 729 Vakauta v Kelly (1988) 13 NSWLR 502 Visy Board Pty Ltd v Attorney-General (Cth), (1984) 2 FCR 113 |
| First Applicant: | FKP17 |
| Second Applicant: | FKW17 |
| Third Applicant: | FKY17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3842 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing dates: | 21 June 2018 & 17 July 2018 |
| Date of Last Submission: | 17 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 27 July 2018 |
REPRESENTATION
| Counsel for the Applicants: | Mr A Silva |
| Counsel for the First Respondent: | Mr N Swan |
| Solicitor for the First Respondent: | Australian Government Solicitor |
ORDERS
The applicants’ application for recusal is dismissed.
The costs of the application for recusal are reserved.
The matter be set down for directions at a time and date convenient to the Court and the parties.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3842 of 2017
| FKP17 |
First Applicant
| FKW17 |
Second Applicant
| FKY17 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants apply that I recuse myself. The basis of the application is the manner in which I presided over a hearing that took place on 15 June 2018. Although the language the applicants and their counsel have used in the documents they have submitted in support of their application for recusal could be taken to suggest actual bias, the applicants say “the recusal is asked for based on an allegation of apprehension of bias”.[1]
[1] An Outline of the Submissions of the Applicants in Relation to the Recusal Application, [5]: “Whatever language has been or is being used that may at times appear to be related to actual bias the intention is always an allegation of apprehended bias.”
Before I consider the grounds on which the applicants claim I should recuse myself, it will be necessary to describe in some detail what occurred at the hearing on 15 June 2018. It will also be necessary to set out the relevant principles that should guide me in deciding whether I should recuse myself.
The hearing of 15 June 2018
Before me on 15 June 2018 was an application for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day limit provided by s.477(1) of the Act for making an application for a remedy under s.476 of the Act in a relation to a decision made by the Administrative Appeals Tribunal (Tribunal). By that decision the Tribunal affirmed a decision made by a delegate of the Minister for Immigration and Border Protection (Minister) not to grant the applicants a protection visa. In applications under s.477(2) of the Act the Court usually inquiries into the reasons why an applicant has not applied within the 35 day period provided for by s.477(1) of the Act, and also into the substantive merits of the application if an order were made under s.477(2).
At the hearing Mr Silva, counsel for the applicants, sought to read an affidavit made by the second applicant on 4 January 2018. That affidavit referred to certain advice the applicants said had been given and not given to them by their former lawyers, and the applicants relied on that advice or absence of advice as a reason for their not having filed their application for judicial review within the time provided for by s.477(1) of the Act.
First phase of hearing
Mr Swan, counsel for the Minister, objected to my reading the affidavit of the second applicant. The basis of the objection was the submission that the applicants’ reliance on legal advice they had received or not received as a reason to explain their delay constituted a waiver of the privilege that attached to that advice; and that the applicants were still maintaining privilege. Mr Swan referred from the bar table to what he asserted was the effect of communications that passed between Mr Swan’s instructing solicitor and the applicant’s former lawyers, and between Mr Swan’s instructing solicitor and Mr Silva. Mr Swan submitted that because the applicants were maintaining privilege over communications that had been clearly waived, the Minister was unable to place himself in the position of being able to test the evidence the applicants proposed to give of the advice they had received and not received from their former lawyers; and, for that reason, I should exercise the discretion under s.135 of the Evidence Act 1995 (Cth) (Evidence Act) not to read the affidavit.
After Mr Swan confirmed that the Minister had not sought to obtain by way of subpoena or notice to produce documents relating to the legal advice the applicants contended they had received or not received, I asked Mr Swan whether in those circumstances he could even begin to lay a foundation for the exercise of the discretion conferred by s.135 of the Evidence Act.[2] Mr Swan submitted that a foundation could be laid, and he referred to an email having been sent to, and a telephone request having been made of, the applicants’ legal representative (by which I understood Mr Swan to mean Mr Silva) on the previous day. Mr Swan handed up what appeared to be an email, but I requested Mr Swan to “tell me at the moment what the effect of it all is and then I shall deal with it in a more formal manner . . . . once I work out what the issues are”.[3] After Mr Swan explained to me what he submitted was the effect of the email, the following exchange occurred:[4]
[2] T7.10
[3] T7.25
[4] T7.30-T8.5
HIS HONOUR: But is the effect of this email communication to say: please waive privilege so we can talk to the lawyer? Is that the effect of it? And you say that the response was: we’re not waiving privilege.
MR SWAN: Yes. Correct.
HIS HONOUR: All right.
MR SWAN: So that could have been done yesterday in circumstances where that statement that I pointed your Honour to in the submissions is very clearly made.
HIS HONOUR: All right. All right.
MR SWAN: And as I said, I’m instructed that Christopher Levingston or Ms Anang in particular, indicated yesterday to my solicitor that if privilege was waived, or your Honour was of the view that if – I’m sorry – if privilege was not asserted or it had been waived, she was prepared to provide yesterday the underlying email documents now.
HIS HONOUR: All right. All right. And – all right, so ‑ ‑ ‑
MR SWAN: So I accept – I accept entirely what your Honour is saying about the notice to produce or subpoena but yesterday’s circumstances are highly relevant in – especially given what has been said directly in the submissions by the applicant.
Mr Swan made a number of submissions in relation to the application of s.135 of the Evidence Act after which I asked Mr Silva: “do you accept that you waive[d] privilege or not?”[5] There then followed an exchange between Mr Silva and me about whether privilege has been waived. Given that what was said in the exchange is the subject of complaint, it would be convenient to set out the entire transcript of the exchange:[6]
[5] T9.45
[6] T9.45-T15.10
HIS HONOUR: --- do you accept that you waive[d] privilege or not?
MR SILVA: No, your Honour, because I had set out – I refer your Honour to an authority and I will also take your Honour to section – that deals with this disclosure, 122 of the Evidence Act, 122(3). The disclosure under 122(3) says:
The client or party knowingly and voluntarily disclosed the substance of the evidence to another person.
The court says – the authorities of the Court of Appeal says another person is not court so once the information disclosed to court it is not a disclosure and I want to take your Honour to an authority on that. So our version is it does not be disclosed and I have a copy for ‑ ‑ ‑
HIS HONOUR: Well, it’s not a question of disclosure; it’s a question of whether you’ve acted inconsistently with asserting your privilege.
MR SILVA: Beg your pardon, your Honour?
HIS HONOUR: It’s a question of whether you’ve acted inconsistently with asserting the privilege. That’s the question, isn’t it?
MR SILVA: Beg your pardon?
HIS HONOUR: Section 122(2) says:
This division does not prevent …
MR SILVA: Yes, that’s clear, your Honour, sorry, on subsection (3), (3)(a).
HIS HONOUR: Yes.
MR SILVA: The words ‑ ‑ ‑
HIS HONOUR: Yes, but before you get there you must look at subsection (2) which is – expressly said:
…without limiting subsection (2) …
MR SILVA: Yes. Yes.
HIS HONOUR: And subsection (2) says:
…does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence …
MR SILVA: Correct.
HIS HONOUR: Well, if you – do you accept that in this affidavit, your clients purport to give evidence about what passed between them and their lawyer?
MR SILVA: Yes. Yes. That’s the point. That’s the point. It was not disclosed to another person; it’s to the court.
HIS HONOUR: No, no. Do you accept in this affidavit that your clients are deposing to communications that pass between – and they’re publishing that?
MR SILVA: Yes. Yes. For the purpose of the court.
HIS HONOUR: Well, you publish it to the world now because I’ve read the affidavit.
MR SILVA: Well, the information is being disclosed to the court about the court proceedings and ‑ ‑ ‑
HIS HONOUR: It has been – you can’t have a greater disclosure than tendering evidence in the court because now it’s in the public domain. The Sydney Morning Herald can report on what’s in this affidavit if it wanted to.
MR SILVA: Yes. Yes.
HIS HONOUR: So you can’t get a greater disclosure than that, can you?
MR SILVA: Your Honour, the – I want you – take your Honour to the authority because ‑ ‑ ‑
HIS HONOUR: No, no. I’m looking at the statute first and then you can take me to the authority.
MR SILVA: Yes. Yes. Well, subsection ‑ ‑ ‑
HIS HONOUR: You don’t accept at the moment that there has been a disclosure of communications.
MR SILVA: Yes. Correct. Correct.
HIS HONOUR: Well, how can you – how can you say that when it’s in an affidavit?
MR SILVA: Your Honour, it’s in an affidavit to the court.
HIS HONOUR: What do you mean by that?
MR SILVA: Well, it has been disclosed to the court. It is not disclosed to another person.
HIS HONOUR: Well, do you accept that it can be – that if the Sydney Morning Herald wanted to report on this proceeding, it could report on what’s in this affidavit?
MR SILVA: Correct. That’s – that’s ‑ ‑ ‑
HIS HONOUR: So why is – so why do you say it has been disclosed to the court?
MR SILVA: Well, your Honour we are looking at that stage now where has it been disclosed to another person? No, it has just been disclosed to court at the moment. Maybe the next stage after it has been accepted, that’s a different matter, but for now it has only been disclosed to the court.
HIS HONOUR: What do you mean by “accepted”?
MR SILVA: Well, it’s – this affidavit is before the court and we are in the process of dealing with whether there has been a waiver or not. So this information only before the court at the moment.
HIS HONOUR: Sorry. Sorry. I don’t – I’ve asked you what you mean by that.
MR SILVA: Yes.
HIS HONOUR: You’ve said you’ve read – you want me to read the affidavit.
MR SILVA: Correct.
HIS HONOUR: I’ve read it. It’s in evidence now before the court.
MR SILVA: Yes. Once read. Once read.
HIS HONOUR: I’ve read it.
MR SILVA: Correct.
HIS HONOUR: So do you accept it’s – now having been read, that your client is disclosing to the world the contents of what would otherwise have been confidential communications between them and their lawyer.
MR SILVA: Yes. Yes. Not at the moment, once it’s accepted.
HIS HONOUR: Not at the moment?
MR SILVA: Since it has been read. If it is read, then that’s fine, but before it has been read ‑ ‑ ‑
HIS HONOUR: I’ve read it.
MR SILVA: Well, now it’s disclosed. But before that ‑ ‑ ‑
HIS HONOUR: So what has that got – well – well ‑ ‑ ‑
MR SILVA: Before that it was not disclosed because the authorities say when something is disclosed to the court, it’s not disclosed to another person. Therefore, there’s no disclosure.
HIS HONOUR: But you gave this affidavit to the Minister.
MR SILVA: Well, once you serve something to the court, we have to by law give a copy to the Minister.
HIS HONOUR: Right. So what happens now? Now it’s waived?
MR SILVA: Correct.
HIS HONOUR: And Mr Swan can make a call for all documents?
MR SILVA: Correct. Yes.
HIS HONOUR: Okay. If a call were made now ‑ ‑ ‑
MR SILVA: Yes.
HIS HONOUR: Mr Swan, can you formulate a call of documents that you would require?
MR SILVA: Your Honour, one other important matter is that the affidavit was filed on 4 January and it’s only last evening there has been a request about this matter and Mr Swan makes a big issue of the communication yesterday, but it has been there for six months and nothing has been done.
HIS HONOUR: Yes. Something was attempted to be done yesterday ‑ ‑ ‑
MR SILVA: Correct.
HIS HONOUR: ‑ ‑ ‑ and you said they couldn’t communicate with the lawyer. You wouldn’t waive privilege. That’s what has been said against you.
MR SILVA: Yes, I – we didn’t – we didn’t waive the privilege and until now only once it’s accepted it’s a different matter, but before that it wasn’t read.
HIS HONOUR: And had a subpoena been issued for these documents, you would have made ‑ ‑ ‑
MR SILVA: Yes. Yes.
HIS HONOUR: ‑ ‑ ‑ and there was a hearing about privilege you would have made then the submission you’re making to me now. Is that right?
MR SILVA: Beg your pardon, your Honour?
HIS HONOUR: Had the Minister issued a subpoena to the lawyer or issued a notice to produce to your clients calling for communications between your clients and the lawyer you would have – and there was a dispute about that and I had a hearing before today would you have been making the same submission to me then as you are now, that is to say, well, privilege has not been waived and it will not be waived until the affidavit is read?
MR SILVA: Yes. Yes. Correct, your Honour.
HIS HONOUR: All right. So even if the Minister had done anything about it you would have still made the submission that you’re making to me now and if you were correct, we will be in the position that we are in now. Is that right?
MR SILVA: Yes. Yes. Yes, your Honour.
HIS HONOUR: All right. So why do you say that – what’s the relevance according to your view of how this section operates ‑ ‑ ‑
MR SILVA: Yes.
HIS HONOUR: ‑ ‑ ‑ of the Minister not having anything since it received the affidavit?
MR SILVA: Well, the point that I was trying to make, your Honour, was that there was ample opportunity for six months. Nothing has been done. And last evening, a request is being made and my friend made a big issue of the fact that we haven’t responded to that. So all I’m saying is that we – our version is it has not been waived and therefore we came to the court with the view that it has not been waived, but as your Honour said, once it’s admitted, it’s a different matter. So that’s all.
HIS HONOUR: Well, that’s not what I’ve said. That’s what you’re submitting. I haven’t accepted that.
MR SILVA: Well, that’s what I’m saying here.
It should be apparent from this exchange that I initially had some difficulty understanding the grounds on which Mr Silva was submitting that privilege over the communications between the applicants and their former lawyer deposed to in the second applicant’s affidavit had not been waived, given the applicants had disclosed those communications in an affidavit which they filed, and which they served on the Minister, and which Mr Silva said he proposed to have read in the hearing before me. In the course of the exchange, and in particular, when Mr Silva said that “once you serve something to the court, we have to by law give a copy to the Minister”, I understood Mr Silva was in effect submitting that even though the applicants had filed and served an affidavit disclosing communications between themselves and their former lawyer, the affidavit was privileged at the time it was created because it was created for the substantial purpose of this proceeding, and that the affidavit maintained its privileged status even though the applicants filed and served it. In other words, Mr Silva appeared to me to have been relying on the proposition, for which there is authority, that “statements or affidavits filed and served in proceedings, but not read in open court, remain … subject to legal professional privilege”.[7] It also became clear to me, however, that Mr Silva submitted, or at least accepted, that once the affidavit was “accepted by the court”, privilege over the communications deposed to in the second applicant’s affidavit was waived; and by “accepted by the court” I understood Mr Silva to mean “read” in the sense of the matters deposed in the affidavit becoming evidence in the proceeding.
[7] That is the formulation given in Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3, [15]
This part of the hearing ended with what I understood was Mr Silva’s accepting that the affidavit of the second applicant had been read, that its contents had therefore been “disclosed”, that privilege in relation to the communications deposed to in the affidavit has been waived, and that Mr Swan could make a call for documents relevant to the communications deposed to in the affidavit. Having arrived to that point, it was unnecessary for me to make any ruling, and therefore hear any further submissions about, whether privilege had been waived earlier. In effect, I proceeded on the assumption, but without making any ruling, that Mr Silva was correct in his contention that by filing and serving the affidavit that disclosed confidential communications between the applicants and their former lawyers the applicants had not waived privilege, and that the affidavit maintained its privileged status until such time as it was read. Phase 1 of the hearing, therefore, ended on what I understood had been accepted by Mr Silva, namely, that the second applicant’s affidavit had been read into evidence, and that the privilege that existed in relation to the communications deposed to in the affidavit had been waived. I understood Mr Silva accepted this was his position. As I will discuss later, Mr Silva resiled from this position at the recusal hearing on 21 June 2018, claiming that he had accepted at the hearing of 15 June 2018 that the affidavit had been read because of what, for the first time, the applicants claimed was my having “bullied” Mr Silva.
Second phase of hearing
The second phase of the hearing dealt with two matters. The first was making arrangements for the production of documents relevant to the matters the second applicant deposed to in her affidavit which I understood had been read. And here there were two sources for the production of documents that was the subject of discussion. One source was the applicants themselves, and I adjourned the hearing to permit Mr Swan time to formulate a call for the production of documents. The other source was the applicants’ former lawyer, Ms Anang who, I understand, is a lawyer employed by Christopher Levingston and Associates. Shortly before 11:28 am Mr Swan made a call, as revealed by the following extract of the transcript:[8]
[8] T26.36-T27.19
HIS HONOUR: All right. Now, do you wish to make a call now?
MR SWAN: Yes, your Honour, we call for production of all documents containing or referring to advice received by the applicants from Christopher Levingston and Associates in relation to the applicant’s attendance at the tribunal hearing and the steps the applicant may take to challenge the tribunal’s decision or otherwise seek ministerial intervention.
HIS HONOUR: All right. So that’s the call. You might give a copy of what you’ve read out to Mr Silva.
MR SILVA: Yes, I’m happy ‑ ‑ ‑
HIS HONOUR: And my direction will be that ‑ ‑ ‑
MR SILVA: No, I don’t oppose that.
HIS HONOUR: ‑ ‑ ‑ the – and my – the – that call will be made again at 2.15.
MR SWAN: Quite.
HIS HONOUR: Very well. The court – we will adjourn the matter till 2.15.
The matter resumed again at 12.04 pm because it had been communicated to me through my associate that Ms Anang indicated she would not do anything without an order from the Court. I then made an order requiring the production of the electronic file or files Ms Anang or Christopher Levingston and Associates maintained in relation to all or any of the applicants.
The second matter I dealt with in the second phase of the hearing was a suggestion I had made that the hearing be conducted on the assumption that the matters deposed to in the applicants’ affidavits are true. The intention of this proposal was that if, on that assumption, the application would be dismissed, there would be no need for a hearing on whether what the affidavits deposed to was true; but if, on that assumption, the applicants would succeed, there would be a hearing. This proposal, which, of course, I could not and did not attempt to impose on the parties, did not appeal to Mr Silva.
Third phase of hearing
This phase of the hearing commenced at 2.20 pm. After I noted that my associate had not received any communication from the applicants’ previous solicitor, I indicated that the matter should proceed. Mr Swan renewed his call for the documents he had made at 11:28 am. It became apparent, however, that Mr Silva had not requested the applicants to search for documents that were the subject of the call. Mr Silva initially said that he did not “understand this to be a call”.[9] In answer to my question whether he had experience in a court of an opponent calling for the production of documents, Mr Silva said “no”.[10] It will be necessary to set out the transcript of the exchange that followed, because the applicants rely on it:[11]
[9] T31.20
[10] T31.35
[11] T31.40-T33.25
HIS HONOUR: But you know, don’t you, that Mr Swan is interested to know if your client has documents?
MR SILVA: Yes.
HIS HONOUR: Do you know that?
MR SILVA:Yes. My understanding was that, your Honour ‑ ‑ ‑
HIS HONOUR: Well, just wait a minute.
MR SILVA: Yes.
HIS HONOUR: And I’m going to ask you, since it became apparent to you that Mr Swan wants those documents ‑ ‑ ‑
MR SILVA: Yes. Yes.
HIS HONOUR: ‑ ‑ ‑ have your clients made inquiries today to obtain those documents?
MR SILVA: No, your Honour, because ‑ ‑ ‑
HIS HONOUR: Why not?
MR SILVA: Because it was not – we didn’t understand that it was being asked from us. That was an honest thing, your Honour, otherwise we were – because we were expecting all the documents from Christopher Levingston and ‑ ‑ ‑
HIS HONOUR: Look, your client has put on an affidavit about advice that they received and haven’t received.
MR SILVA: Yes.
HIS HONOUR: They put on an affidavit.
MR SILVA: Yes.
HIS HONOUR: Your client has chosen not to annex those documents in the affidavit.
MR SILVA: That’s correct, your Honour.
HIS HONOUR: Right. And it’s clear to me that Mr Swan wants to see if your client has any of those documents.
MR SILVA: Yes. No, it’s ‑ ‑ ‑
HIS HONOUR: And you’re trying to tell me that you did not understand that your clients would be required to undertake inquiries to produce any of those documents.
MR SILVA: Correct, your Honour. That’s – that’s an honest statement because we were all expecting all documents to come from Ms Anang.
HIS HONOUR: Why, when you had documents, you say?
MR SILVA: No, because your Honour has made orders that – here – that those documents produced.
HIS HONOUR: Yes. There is your clients who may hold documents.
MR SILVA: Yes. Yes.
HIS HONOUR: And there’s a separate individual who may hold documents.
MR SILVA: Yes, your Honour.
HIS HONOUR: And you’re telling me that you understood that all this discussion today was about getting documents from the lawyer, not from your clients?
MR SILVA: Correct, your Honour, that’s ‑ ‑ ‑
HIS HONOUR: Look, I’m going to adjourn for five minutes just so that I can compose myself ‑ ‑ ‑
MR SILVA: Yes, your Honour.
HIS HONOUR: ‑ ‑ ‑ having heard what you’ve just said to me and I will come on the bench and I will hear what you want me to do.
MR SILVA:Yes, your Honour.
Fourth phase of hearing
I resumed the hearing eight minutes later at 2.33. I said that “what I have in mind is to adjourn the hearing”,[12] but shortly later I said to Mr Swan that I took it that he would be applying for an adjournment.[13] When Mr Swan answered he would be seeking an adjournment I asked Mr Silva what was his attitude to that. Mr Silva said that the applicants had filed their affidavits on 1-4 January 2018, and it was only in the previous evening that there was any attempt to try to ask for the documents or ask for the applicants to be available for cross-examination, and he said that he “hoped your Honour will take that into consideration”.[14] After a discussion with Mr Silva and Mr Swan, the following exchange occurred:[15]
[12] T35.1
[13] T36.5
[14] T36.15
[15] T37.10-T38.35
HIS HONOUR: All right. Well, I hear that – I’m going to take that to be – I’m going to take that into account but what I understand is your position today was that privilege had not been waived until the affidavit was read.
MR SILVA: Correct, your Honour. Yes.
HIS HONOUR: And can I then therefore take it ‑ ‑ ‑
MR SILVA: Your Honour, sorry, may I clarify that?
HIS HONOUR: Yes.
MR SILVA: As far as our communication with Ms Anang was that really we said you can give evidence as long as you don’t disclose things about the applicants’ case but about the matters like extension and about tribunal, you can.
HIS HONOUR: Okay. You said – you said that to ‑ ‑ ‑
MR SILVA: Yes, because we said – because we don’t want you damage our case the things that you discussed. That’s what we told them. We didn’t completely say you can’t speak – we said, yes, you can deal with the information, yes. And that will be evident from the emails you will see.
HIS HONOUR: All right. All right. Do I take it you oppose the application for an adjournment?
MR SILVA: No, your Honour. No.
HIS HONOUR: You don’t? All right.
MR SILVA: No, I think it’s right that we should have the information.
HIS HONOUR: All right. All right.
MR SILVA: And we are not afraid because we think it will be helpful to us so – yes, no problem.
HIS HONOUR: Well, I think it’s important for all the documents to be in front of the court and that’s why I’m going to adjourn or propose to adjourn.
MR SILVA: Yes, your Honour. I understand that.
HIS HONOUR: But before I do that, can I at least give you an opportunity now to see whether there are any documents that are available to – that are accessible by your client on any mobile device they hold in court.
MR SILVA: Yes. Yes. Yes, your Honour. Yes.
HIS HONOUR: Whether they have those documents now.
MR SILVA: Yes, whatever they have they can send it to some email, your Honour, to the associate, your associates or ‑ ‑ ‑
HIS HONOUR: Well, what I’m going to do is I’m going to give you an opportunity to obtain those instructions.
MR SILVA: Yes. Yes.
HIS HONOUR: And I’m only dealing with instructions – I’m only dealing with documents that answer the call. By “call” I mean any documents that fall within the description given by Mr Swan. I want you to – I’m going to ask you to obtain instructions from your client whether they can access on their mobile devices any documents that answer the description of the documents in the call.
MR SILVA: Yes. Yes. Sure. Sure. Yes, your Honour.
HIS HONOUR: And even if it’s only a partial call, what I’m going to suggest is that they be produced today and I will deal with the questions of access and what have you.
MR SILVA: Yes. Yes.
HIS HONOUR: So I will go off the bench for a few minutes to give you an opportunity to obtain those instructions.
There was further discussion about Mr Silva obtaining instructions about whether his clients would be able to produce any documents on that day and, if the applicants do have such documents, the mechanism by which they may be produced to the Court. It was envisaged that any documents the applicants were in a position to produce would be sent to my associate’s email address, and the documents would then be printed and provided to Mr Silva. This part of the hearing concluded with the following exchange:[16]
[16] T39.20-T39.45
HIS HONOUR: They will be printed out. I will come back on [sic] court. I will give you the documents and then you can say: I produce them.
MR SILVA: Yes. Yes.
HIS HONOUR: If you have any persisting claim of privilege, you can – and we will deal with the normal things one deals with when documents are produced.
MR SILVA: Sure. Yes, your Honour.
HIS HONOUR: And then I will make – what I propose to do is just simply adjourn the hearing, appoint a directions hearing which is convenient to counsel and ‑ ‑ ‑
MR SILVA: Your Honour, would half an hour be appropriate? Just have some idea of time so that ‑ ‑ ‑
HIS HONOUR: Well, it’s really up to you. I can’t imagine it will take you half an hour but if you say it’s – look, it’s whatever inquiries you need to make of your clients whether ‑ ‑ ‑
MR SILVA: Yes, your Honour. That’s from the mobile, yes.
HIS HONOUR: From the – I assume they have no other device in here by which they can access documents.
MR SILVA: No. No. Yes, I talk to them.
HIS HONOUR: All right. So I will adjourn and I will wait until you tell me – tell my associates that you’ve exhausted your instructions.
Fifth phase of hearing
The hearing resumed at 3.31 pm. I first informed the parties that my associate received a telephone call from Ms Anang that she would be in a position to comply with the order I made earlier in the afternoon by 6 pm.[17] I also recorded what I understood, based on communications from my associate, had occurred in relation to documents the applicants located on their mobile devices in answer to Mr Swan’s call for production of documents. The applicants had identified four documents, these were emailed to my associate’s email box, three copies of the documents were printed, and Mr Silva had been given the three copies of the documents.[18] I told Mr Silva that it was a matter between him and Mr Swan what Mr Silva wanted to do with the documents. The documents were produced and a copy given to Mr Swan. I said there was no need for me to look at the documents unless somebody tenders them at the appropriate time.[19] After further discussion about the documents, and my intention to list the matter for directions on 21 June 2018, the following exchange occurred:[20]
[17] T40.15
[18] T40.30
[19] T41.1
[20] T44.20-T44.45
MR SILVA: Yes. For this – sorry, I really apologise for this call for production. I didn’t – by ‑ ‑ ‑
HIS HONOUR: Mr Silva, I don’t think – I manifested anger but I don’t think I raised my voice and I don’t think ‑ ‑ ‑
MR SILVA: No, your Honour didn’t.
HIS HONOUR: And I went off to compose myself but I accept you did not understand ‑ ‑ ‑
MR SILVA: No. Yes.
HIS HONOUR: ‑ ‑ ‑ incredible as it seemed to me, but I accept that.
MR SILVA: Yes.
HIS HONOUR: So there’s ‑ ‑ ‑
MR SILVA: My office is so far away, your Honour, so I didn’t think that ‑ ‑ ‑
HIS HONOUR: No, no. No, I’m just saying that so that you’re not leaving here thinking I’ve got any thoughts that you’ve done something untoward.
MR SILVA: No, your Honour. I understand.
HIS HONOUR: Now I may not understand why you didn’t understand it, but that’s a different issue.
MR SILVA: Sure. Sure.
HIS HONOUR: All right.
MR SILVA: Sure. Sure. No, I didn’t actually know by the timeframe so there was something so I’m really sorry about that, yes.
After some brief discussion about the documents that I anticipated Ms Anang was going to produce by email later in the afternoon, I ordered that the hearing be adjourned part-heard to a directions hearing at 9.30 am on 21 June 2018, and also ordered that the balance of the answer to the call for production made by Mr Swan be adjourned to that directions hearing.
After I made these directions, I decided to say something about costs because, after it became apparent Mr Silva had misunderstood the nature of the call for production Mr Swan had made, Mr Swan indicated the Minister would be applying for costs. This is what I said about costs:[21]
HIS HONOUR: Now just one other thing. In terms of costs, I’m not going to – I mean it’s impliedly reserved, but before people start taking effort about thinking about costs, I urge people to take care about that because on one view, these documents should have been sought before the hearing. That’s something the Minister should bear in mind before they make any application for costs about today. Well, in fact that – and although the evidence about what occurred yesterday is not clear, that is a matter that might be countered against your side of the bar table. So all I’m saying is on my view of today, there may be fault on both, and I urge you to consider that before thinking about making orders for costs that have been thrown away by reason of today.
[21] T46.30
The hearing then concluded.
Principles
The principles that govern the circumstances in which a judge should recuse himself or herself on the ground of apprehension of bias are not in doubt. The starting point is the principle that “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”.[22] As was stated by the plurality in Johnson v Johnson:[23]
The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded on the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues.
[22] Ebner v Official Trustee in bankruptcy (2000) 205 CLR 337, at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ)
[23] [2000] HCA 48, at [12]
Where, as is the case in the present recusal application, the claim of apprehended bias is based on statements made in the course of a hearing:[24]
it is the fair-minded lay observer's assessment of the capability of the judge to determine the matter according to law, on the basis of the evidence admitted at the relevant hearing and after hearing submissions from the parties, which is to be assessed, rather than the actual state of mind of the judge either when the impugned conduct occurs or at the later time when the trial is listed . . .
[24] Barakat v Goritsas (No 2) [2012] NSWCA 36, at [8]
There are two further matters to note. The first is the identification of that of which there must be a reasonable apprehension might occur. It is not “that the case will be determined adversely to the interests of the complaining party”; it is that “the trial judge had formed a fixed view, to which it may be expected that he or she will adhere, regardless of the evidence or the submissions made by the complaining party”.[25] The second matter is the standard of risk of the judge forming such a fixed view; and here there is applied an “objective test of possibility, as distinct from probability”.[26]
[25] Barakat v Goritsas (No 2) [2012] NSWCA 36, at [40]
[26] Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, at [28]
The fair-minded lay observer
Given that the question of apprehension of bias is to be assessed by reference to the fair minded lay observer, it is necessary to be clear about the assumed attributes of such observer, and the matters of which such person is an observer. Thus, the fair minded observer is taken to be reasonable;[27] the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”;[28] while the fair minded lay observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice”, it being understood that the “rules and conventions governing such practice are not frozen in time”, that those rules and conventions develop “to take account of the exigencies of modern litigation”, and that “modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment as inscrutable as the Sphinx”;[29] the fair-minded lay observer “is no more entitled to make snap judgments than the person under observation”;[30] the fair-minded lay observer “is neither complacent nor unduly sensitive or suspicious”;[31] and that the fair-minded lay observer “would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers”.[32]
[27] Johnson v Johnson [2000] HCA 48, at [12]
[28] Johnson v Johnson [2000] HCA 48, at [12]. The quoted passage is from the judgment of McHugh JA in Vakauta v Kelly (1988) 13 NSWLR 502 at page 527
[29] Johnson v Johnson [2000] HCA 48, at [13]
[30] Johnson v Johnson [2000] HCA 48, at [14]
[31] Johnson v Johnson [2000] HCA 48, at [53]
[32] Johnson v Johnson [2000] HCA 48, at [53]
A useful statement of the attributes of the fair-minded observer was given by Lord Hope of Craighead in Helow v Home Secretary:[33]
The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious. ... Her approach must not be confused with that of the person who has brought the complaint. ... The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. ...
Then there is the attribute that the observer is “informed”. It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she had read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.
[33] [2008] 1 WLR 2416 at page 2422 [23]
Given that the basis of the recusal application is my exchanges with Mr Silva it would also be useful to set out what has been said about the circumstances in which a judge’s behaviour towards counsel might give rise to a reasonable apprehension of bias. The Hon James Thomas AM, a former judge of the Court of Appeal of Queensland, said in his book on judicial ethics:[34]
All judges should regularly ask themselves whether they are being unnecessarily aggressive towards counsel or litigants. The deference with which judges are treated in court makes it easy to fall into this trap. This does not mean that the judges should tolerate rude counsel, permit repetitious questioning or put up with irrelevant argument. If judges do not run the equivalent of a tight ship, control is easily lost and cases tend to run at great expense to the parties and the state. Courts are robust institutions and it is undesirable that either judges or counsel should be too thin-skinned about an occasional skirmish.
[34] Judicial Ethics in Australia, 3rd edition 2009 at [4.7]
In Galea v Galea Kirby A-J said:[35]
In judging the suggestion of a supervening apprehension of bias, it is reasonable to assume that the hypothetical lay observer would base the opinion on a fair assessment of the judge’s conduct in the context of the whole of the trial. A judgment of the loss of impartiality and neutrality would not be made from a short and emotional exchange taken out of context and then weighed in isolation. Judges, like witnesses, are human. Despite their professional training they are, in varying degrees, likely to show the range of emotions to which humanity is heir. Whilst patience is a judicial virtue, so also is a concern about justice, the efficient conduct of proceedings, and the avoidance of unnecessary delay, including to other litigants awaiting their hearing. Judges should understand the variety of skills in communication that exist in the community. Some people are pedantic, even without wishing to be so. I get the impression that the appellant liked to take fine points of language which might delight a seminarian but which could cause irritation to a busy judge who thereby formed the opinion that he was temporising and evading questions which were embarrassing to him. Some of the expressions of Powell J, combed over in a detailed appellate examination of the transcript, are such that, with hindsight, they could doubtless have been improved. On the other hand, the right, and perhaps the duty, of the judge to expose the development of his thinking to the appellant, and explain and justify what he said, can be viewed as a whole and seen in the context.”
[35] (1990) 19 NSWLR 263, at page 279
Finally there is the following passage from the judgment of Callinan J in RPS v The Queen:[36]
In any trial, a manifestation of apparent bias towards counsel may only constitute relevant, apprehended bias in respect of a party if the conduct is such as to give rise to an appearance of bias against that party. Disparaging comments, however undesirable or deserved they might be, about counsel's conduct may or may not produce that appearance. The question, in respect of a jury trial in which facts and the final decision on them are not for the judge, will be, whether the conduct gives rise to an apprehension of bias against a party, not correctable and not corrected by very clear statements by the trial judge that factual matters and the ultimate decision were matters for them and them alone, together with any other necessary statements and explanations that may be necessary in the circumstances. Apprehended bias manifesting itself in respect of legal matters will usually constitute an error of law open to correction by an appellate court.
[36] (2000) 168 ALR 729 at [94]
Assessing claims of apprehended bias
Considering whether in a particular case a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question involves taking two steps:[37]
First, it requires the identification of what it is said might lead a [decision-maker] 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 a case on its merits. The bare assertion that a [decision-maker] 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.
[37] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, at [8], (Gleeson CJ, McHugh, Gummow and Hayne JJ)
It is therefore “incumbent upon the party seeking recusal to identify the issues which will need to be determined, the conduct which gives rise to the apprehension and the logical connection between the conduct and the issues”.[38]
[38] Barakat v Goritsas (No 2) [2012] NSWCA 36, at [12]
In Isbester v Knox City Council Gageler J said the assessment of apprehension of bias “involves three analytical steps”.[39]
Step one is identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as the result of a neutral evaluation of the merits. Step two is articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits. Step three is consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way.
[39] [2015] HCA 20, at [59]
Where it is claimed that two or more factors might give rise to an apprehension of bias, the capacity of each factor to give rise to apprehension of bias must be considered separately and cumulatively.[40]
[40] Barakat v Goritsas (No 2) [2012] NSWCA 36, at [41]
Judge sought to be recused must determine recusal application
An application that a judge recuse himself or herself must be heard and determined by the judge. That is a necessary implication of the following principles stated by the plurality in Ebner v Official Trustee in Bankruptcy:[41]
Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
[41] (2000) 205 CLR 337, at [19]
These principles, however, do not mean that a judge faced with an application for recusal must continue to preside over the proceeding unless he or she “has affirmatively concluded that he or she is disqualified”:[42]
In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
[42] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, at [20]
Although there are good reasons for the rule that an application for recusal must be addressed to and determined by the judge the application seeks to be recused, the rule is problematic for the reasons identified by Sheppard J in Visy Board Pty Ltd v Attorney-General (Cth):[43]
I am also conscious that a submission of this kind places judges in a difficult position. In a sense they become judges in their own cause. They may be inclined to give their own words a beneficial reading or a reading which they know their words were intended to have.
[43] (1984) 2 FCR 113 at page 174
Sheppard J’s answer to the difficulty, however, was that “the question must always be an objective one”, that it “is one of appearances”; and that “[a]s best one can one has to place oneself in the shoes of a fair-minded observer who stands apart from the proceedings”. Sheppard J dealt with the application for recusal before his Honour as follows:
The exercise is not an easy one and I hope I am conscious of this. But having endeavoured to perform it to the best of my ability, I feel bound to say that I have not been able to perceive any justification for the submission which was made.
The tasks I attempt to perform in these reasons for judgment is to place myself in the shoes of a fair-minded lay observer who stands apart from the proceeding, and consider as best I can whether any of the grounds on which the applicants rely, considered alone and cumulatively, might lead a fair-minded lay observer reasonably to apprehend that I might not bring an impartial mind to the resolution of the questions I am required to decide in this proceeding, namely, whether an order should be made under s.477(2) of the Act extending the 35 day limit provided by s.477(1) of the Act for making an application for a remedy under s.476 of the Act in a relation to a decision made by the Tribunal and, if such order is made, whether the Tribunal made a jurisdictional error on any one or more of the grounds set out in the application for judicial review.
The course of application for recusal
The means by which the applicants communicated to me that they proposed to apply that I recuse myself is a memorandum addressed to “His Honour Judge Manousaridis” signed by the first and second applicants (Initiating Document). The Initiating Document was sent to my associate’s email address from the email address of Mr Silva. It was sent at 7:03 pm on 19 June 2018. Next to the word “Subject” there is included “Recusal Application” and “Notice of request for change of costs order for 15/06/18”. After noting that “the transcripts of the whole proceedings are attached to this application” there appeared under the heading “Recusal Application” the following:
With the greatest respect to the Court we ask your Honour to recuse yourself from this matter based on our reasons below:
(i) Display of partisan behaviour; and
(ii) Humiliating of Mr. Silva due to misdirected anger.
The Initiating Document is divided into ten sections. The first section, which is headed “Information before the Court on 15/06/8 [sic] at the beginning”, sets out seven matters it is asserted “would have been self-evident to your Honour”. These include the Minister’s not having filed any document “for six months and 11 days until 15/06/18 to challenge the 4/01/18 affidavit”.
Under the heading “We were model litigants”, it is stated that the applicants came into the court room on 15 June 2018 “having done everything that needed to be done up until that time like model litigants”, noting that the applicants “were quite confident all necessary things have been done since we have seen Mr. Silva being meticulous with his work”. The applicants then referred to Mr Silva having contacted them the afternoon before and arranged to have a conference with them at 6.00 pm. At that conference the applicants were informed for the first time that the Minister’s lawyers had requested that the applicants appear for the purpose of being cross-examined. The applicants also said that Mr Silva told them that another request had been made. Mr Silva said that he had been told that “because there was a disclosure he had to speak to Christopher Livingstone [sic] and Associates to waive the privilege”. The applicants say that “Mr Silva said something like, the AGS was contacting him just the day before hearing and so late as well, it involved complex legal matters, but he had to contact his clients, but he may not be able to talk to Christopher Livingstone [sic] and Associates to waive the privilege”. The applicants stated that they had already advised by letter dated 18 April 2018 that “we claim only a limited privilege over the documents/evidence and the reasons why”; that this was reinforced by letter dated 21 May 2018; and that “we had not claimed privilege blindly over the whole information”. They state that “Ms. Anang could have given evidence if she wanted to or had been legally required to be present to give evidence and privilege issue could have been raised at the Court before her evidence”.
The next section of the Initiating Document is headed “Lawyers for model litigants (The Commonwealth – The Minister for Home Affairs) failed in their duty to their clients, the applicants and the court”. Here the applicants assert that the Minister’s lawyers failed to behave like model litigants in two respects. The first was the Minister failed “to use any available court processes such as Notice to Produce or Subpoena weeks or months in advance of the proceedings to force either Christopher Livingstone and Associates or us the applicants if they feel necessary, to disclose documents to them or the court”. The second was “[b]laming us the applicants is even worse than that”.
Under the heading “On the hearing day”, after referring to matters that occurred before the hearing, the Initiating Document refers to the following matters:
a)Mr Swan engaged “in a serious of [sic] sustained attack on us, sometimes referring to verbal communications and it went on and on and your Honour did nothing to stop him and Mr Silva got up and objected twice and your Honour told Mr Silva you will get your chance to speak or something like that”.
b)After Mr Swan finished “your Honour did not give Mr Silva any opportunity to address the prejudicial submissions on several matters made by Mr Swan”. It is stated that I “should have stopped Mr Swan and given Mr Silva to [sic] respond when each allegation was made rather than letting him go for a while referring to several matters almost inciting your Honour against us”.
c)I asked Mr Silva about disclosure but after Mr Silva said there had been legally no disclosure and he wanted to refer to a case decision “your Honour did not allow him to refer to that case and engaged in agitated discussion . . . about disclosure”, and that “Your Honour did not give him the opportunity to put the case decision to your Honour”, that case being Macedonian Orthodox Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & Anor.[44]
d)At one stage “Your Honour even accused the applicants . . . for not putting the emails in evidence”.
e)“Your Honour did not accuse the First Respondents [sic] the same way your Honour accused Mr. Silva because they were the one who are supposed to put the evidence to challenge our affidavit”.
[44] [2006] NSWCA 160
The Initiating Document does not say whether the applicants’ complaints are based on actual or apprehended bias. The absence from the document of any reference to the fair-minded lay observer could reasonably be taken to have suggested that the complaint made in the Initiating Document was that of actual bias. This impression is reinforced by the absence of any attempt in the Initiating Document to define with any particularity the matters which the applicants claim might lead me to decide their application for an extension of time under s.477(2) of the Act and, if granted, the substantive claims they make in their application for judicial review, other than on their legal and factual merits; or to articulate the logical connection between such factors and the possibility of my deviating from my obligation to consider those claims with impartiality.
At any rate, the Initiating Document grounds the application for recusal on two matters – my engaging in conduct that favoured the Minister and was antagonistic towards the applicants; and my engaging in conduct that humiliated Mr Silva, that conduct consisting of my having adjourned the matter for a short time to compose myself.
During the hearing of the recusal application on 21 June 2018 a further ground was stated. It is appropriate that I set out the passage of the transcript where this occurred:[45]
[45] 21.06.2018; T15.40
HIS HONOUR: . . . I take it that you are still holding to your submission that privilege was not waived until such time as the affidavits were read last Friday.
MR SILVA: Your Honour ‑ ‑ ‑
HIS HONOUR: Do you maintain that position?
MR SILVA: No. This is my position. Privilege has never waived until now and it was agreed to your Honour’s submission that it was waived because I was bullied.
HIS HONOUR: By me?
MR SILVA: Correct, your Honour, and forgive me for that – for saying that word. And I really say that – I must put that on.
Mr Silva described a little later what he claims was the conduct by which I “bullied” Mr Silva:[46]
MR SILVA: No, your Honour, with respect. I – because I had – because your Honour – your Honour, when we came to this, your privilege, you were so agitated I got – I said, “What’s going on here? I can’t go with this because I can’t fight with this judge because he’s so irritated, agitated, I’ll just go ahead and look out on my client’s interest because I put to your Honour several times it has to be read and that your Honour said, “I read it” and that – and your Honour also, in some sense – please forgive me – you ..... saying ..... the whole world.” And then – and from that I was really uncomfortable. I said, “No. No. There seems to be some kind of agitation here and I don’t want to – I don’t want to fight. I just want to get on.” And then your Honour repeated twice you’re ..... by the world .....
[46] 21.06.2018; T22.25-T22.35
At the hearing of 21 June 2018 I asked Mr Silva whether the allegation of my bullying of him was made in the Initiating Document. It may be relevant to set out the transcript of the exchange that followed after asking Mr Silva that question because it resulted in Mr Silva making an affidavit on which the applicants relied at the hearing on 17 July 2018.[47]
[47] 21.06.2018, T24.10-T25.25
HIS HONOUR: All right. Well, just before we adjourn you tell me whether in that document [the Initiating Document] there’s any allegation of bullying by me.
MR SILVA: Your Honour, if you would forgive me, I – please give me time because this is a very important matter and I can’t do it now.
HIS HONOUR: Look, you have made a fairly serious allegation ‑ ‑ ‑
MR SILVA: Yes.
HIS HONOUR: ‑ ‑ ‑ of gross judicial misconduct directed at me ‑ ‑ ‑
MR SILVA: Yes.
HIS HONOUR: ‑ ‑ ‑ which is fine.
MR SILVA: Yes.
HIS HONOUR: If I’ve done that, I wear the consequences.
MR SILVA: Yes.
HIS HONOUR: But I want to know ‑ ‑ ‑
MR SILVA: Yes.
HIS HONOUR: ‑ ‑ ‑ having regard to the serious charge that you’ve made ‑ ‑ ‑
MR SILVA: Yes.
HIS HONOUR: ‑ ‑ ‑ whether you’ve recorded that charge in the document that you filed.
MR SILVA: Your Honour, I need to ‑ ‑ ‑
HIS HONOUR: And, if it’s not there, I’m going to require some very good explanation from you why it wasn’t in there and why you now choose ‑ ‑ ‑
MR SILVA: Yes.
HIS HONOUR: ‑ ‑ ‑ to make what’s a very very serious allegation against me.
MR SILVA: Your Honour, no problem with me giving any explanations but I need really to read through the documents.
HIS HONOUR: Well, did you not read it before it came here?
MR SILVA: Your Honour, these are serious matters. I really have to read every line. I can’t just say things now.
HIS HONOUR: Well, you would imagine that if you put in a document a serious allegation of bullying by a judge you would remember that but you don’t know.
MR SILVA: Well, your Honour, I need time. I can’t – I can’t give anything now.
HIS HONOUR: All right. But you don’t know.
MR SILVA: Well, I need to look at it.
HIS HONOUR: But you don’t know.
MR SILVA: Not really, your Honour. One has to be sure ‑ ‑ ‑
HIS HONOUR: All right. That’s all I wanted to know.
MR SILVA: Your Honour, I need to be sure because I don’t want to say things without being absolutely sure.
I indicated to Mr Silva that I expected an affidavit from him – although I said it was a matter for him whether he should provide me with an affidavit – that, if an allegation of bullying was not made in the Initiating Document, why it was not made in that document. I also said I would like Mr Silva to file and send to my associate a document which makes and particularises the allegation of bullying. Mr Silva made and filed an affidavit to which I will refer later. Mr Silva also filed a document titled “An Outline of the Submissions of the Applicants In Relation to the Recusal Application” (AWS).
I propose to consider separately the claims made in the AWS and the claims made in Mr Silva’s affidavit.
Submissions made in AWS
As I noted at the beginning of these reasons, the AWS makes clear that the application for recusal is based on “apprehension of bias”.[48] That this is the ground on which the applicants apply for recusal is reinforced by the authorities referred to in the AWS. A feature of the AWS, however, is that the AWS does not purport to assess the matters on which applicants rely (matters complained of) as giving rise to apprehension of bias by reference to how a fair-minded objective lay observer would assess the matters complained of; the matters complained of are assessed on the basis of the perceptions of the applicants and of Mr Silva. That this is the basis of the submissions made in the AWS, and of the recusal application itself, was confirmed by Mr Silva at the hearing of 17 July 2018 when he accepted my formulation of the applicants’ position, namely, that the applicants’ and Mr Silva’s perceptions are the perceptions that a fair minded lay observer would have.
[48] AWS, [5]
There is another feature of the AWS to which it is necessary to draw attention at the outset. Like the Initiating Document the AWS does not attempt to articulate any logical connection between the matters complained of and the possibility of my deviating from my obligation to consider the claims I was due to hear on 15 June 2018 according to their legal and factual merits. Those claims, I repeat, are an application for an order under s.477(2) of the Act to extend the 35 day limit provided by s.477(1) of the Act for making an application for a remedy under s.476 of the Act in a relation to a decision made by the Tribunal and, if such order is made, the determination of the substantive grounds set out in the application for judicial review.
I now turn to each of the matters complained of. In what follows I will refer to myself as “the Judge” when I describe what I did or did not do, or what it is alleged I did or did not do, at the hearing of 15 June 2018. I do this to remind myself that the task I must undertake is to place myself as best I can in the shoes of the fair-minded lay observer.
Applicants were “model litigants”
The AWS submits the applicants were “model litigants” in the sense they had complied with whatever obligations they had in the conduct of the proceeding.[49] It may be accepted that the applicants have complied with their obligations in their conduct of the proceeding. That by itself, however, cannot suggest that the Judge acted in a manner that would give rise to a reasonable apprehension of bias. At most the applicants’ being “model litigants”, in the sense submitted by the applicants, is a contextual matter that may or may not be relevant to assessing the matters complained of.
[49] AWS, [24], [25]
Applicants harshly treated - general
The next matter on which the applicants rely is the claim the Judge treated the applicants harshly.[50] That, in turn, is based on more specific claims, these being:
a)the Judge did not allow the applicants to object to Mr Swan “attacking us”, but instead allowed Mr Swan “to continue with no opportunity to respond to these prejudicial statements”; [51]
b)the Judge did not allow the applicants “to present the authority on privilege Disclosure”;[52]
c)the Judge made “extreme statements” in “an agitated state”, that “were not necessary and were intimidatory”;[53]
d)the Judge “[a]cussing the applicant for not putting the email evidence, also with regards to the privilege talking about inconsistent behaviour”;[54] and
e)the ““call for documents” incident”.[55]
[50] AWS, [26]
[51] AWS, [26(i)]
[52] AWS, [26(ii)]
[53] AWS, [26(iii)]
[54] AWS, [26(iv)]
[55] AWS, [26(v)]
I will separately consider claims (a), (d), (e), but will consider claims (b) and (c) together because they overlap.
Applicants harshly treated, claim (a) – not affording opportunity to counter prejudicial statements
This complaint is directed to that part of the hearing I have described in paragraphs 5-7 of these reasons. The AWS states:[56]
As soon as the hearing began on 15/06/18 Mr. Swan informed your Honour about the issue of claim of privilege.
Mr Swan then engaged in a serious [sic] of sustained attack on us, sometimes referring to verbal communications and it went on and on and your Honour did nothing to stop him and Mr. Silva got up and objected twice and your Honour told Mr. Silva you will get your chance to speak or something like that. Mr Swan continued his attack and during which he also submitted a court decision. (P4L21-P9L42) & (P6L20-27).
Once it was finished your Honour did not give Mr Silva any opportunity to address the prejudicial submissions on several matters made by Mr. Swan. It would have been impossible to respond to the statements made by Mr. Swan because there were a number of matters.
Your Honour should have stopped Mr. Swan and given Mr Silva to [sic] respond when each allegation was made rather than letting him go on for a while referring to several matters inciting your Honour against us.
[56] AWS, [55]
The passages of the transcript referred to in this complaint refer only to one occasion in which Mr Silva sought to interrupt Mr Swan, and it is as follows:[57]
[57] T6.20-T6.30
MR SILVA: Your Honour, there are several issues being canvassed ‑ ‑ ‑
HIS HONOUR: Well, just wait a minute. Mr Swan hasn’t finished his submissions.
MR SILVA: Yes. There are several issues being canvassed ‑ ‑ ‑
HIS HONOUR: Yes. You will have an opportunity to respond to what Mr Swan says.
MR SILVA: Yes.
The complaint the applicants make about this part of the hearing purportedly reflects the subjective reactions of the applicants at the time of the hearing of 15 June 2018 and, perhaps, after the hearing, having reflected on what had occurred at the hearing. The question, however, is how a fair-minded lay observer would have perceived this part of the hearing, having regard to what occurred at the hearing as a whole.
The fair minded-observer would have perceived a number of matters. First, Mr Swan asserted matters of fact relating to what had occurred before the hearing that Mr Swan submitted were relevant to the Minister’s objection based on s.135 of the Evidence Act to the reading of the second applicant’s affidavit. Second, Mr Silva interrupted Mr Swan. Third, when Mr Silva interrupted Mr Swan the Judge informed Mr Silva he would have an opportunity to respond to what Mr Swan said. Fourth, Mr Silva responded to what Mr Swan said, and he did so on two occasions. The first is towards the end of the exchange that I have set out in paragraph 7 of these reasons, beginning with Mr Silva stating: “Your Honour, one other important matter is that the affidavit was filed on 4 January”. The second occasion is that which I have identified in paragraph 14 of these reasons where, in response to my inquiring about his attitude to the matter being adjourned, Mr Silva said that the applicants had filed their affidavits on 14 January 2018, and it was only in the previous evening that there was any attempt to try to ask for the documents or ask for the applicants to be available for cross-examination. Fifth, by the time Mr Silva accepted that the affidavit of the second applicant had been read and, for that reason, privilege over the communications referred to in the affidavit had been waived – and this occurred early in the course of the hearing – the Judge, Mr Swan, and Mr Silva proceeded on the assumption that what Mr Swan asserted to have occurred before the hearing, so far as that was said to be relevant to privilege, did not raise any issue the Judge was required to determine.
In assessing this part of the applicants’ claims for recusal, it may also be relevant to note that at the hearing Mr Silva did not submit that what Mr Swan stated from the bar table constituted a “sustained attack on us”, or that the Judge should stop Mr Swan from continuing because Mr Swan was undertaking such sustained attack, or that the nature of what Mr Swan was asserting was such that the only way Mr Silva could respond was by the Judge permitting Mr Silva to respond serially to each assertion Mr Swan made or proposed to make. It is reasonable to impute to the fair-minded lay observer an understanding that it is the role of counsel for a party to put to a judge matters that counsel considers to be relevant to the advancement or protection of the interests of the party counsel represents, and for counsel to conduct the case on behalf of the party counsel represents in a manner that, in counsel’s judgment, advances or protects the party’s interests. Thus, the fair-minded lay observer would have perceived that Mr Silva, as counsel for the applicants, put to the Judge all that he considered to be relevant to the protection or advancement of the applicants’ interests in so far as those interests could be or could have been affected by the assertions Mr Swan made; and that Mr Silva otherwise conducted the case on behalf of the applicants in a manner he considered protected or advanced the interests of the applicants.
In these circumstances a fair-minded lay observer would not have perceived the Judge as having prevented Mr Silva, acting as counsel for the applicants, from making submissions in response to assertions made by Mr Swan about what had occurred before the hearing. This part of the applicants’ claim for recusal, therefore, affords no basis on which a fair-minded lay observer might reasonably apprehend that I might decide the applicants’ application for an order under s.477(2) of the Act, and if such order is made, the substantive grounds contained in the application for judicial review, other than on their legal and factual merits.
Applicants harshly treated, claims (b), and (c) – Judge not allowing applicants to present the authority on privilege Disclosure and intimidatory language and manner
This part of the applicants’ complaints is directed to two matters. The first is Mr Silva’s attempted reliance on Macedonian Orthodox Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & Anor.[58] The second is Mr Silva’s having accepted that the second applicant’s affidavit had been read, and that the consequence of its having been read is that the privilege in relation to the communications deposed to in the second applicant’s affidavit has been waived. It is not entirely clear, however, on what conduct of the Judge the applicants rely as giving rise to an apprehension of bias, and how such conduct is said to give rise to an apprehension of bias.
[58] [2006] NSWCA 160
I will begin by identifying the various claims made in the AWS that are relevant to these matters; and there are three. First, the Judge “contradicted himself because disclosure and privilege is directly linked”; if “there is no disclosure then how can there be inconsistency in asserting the privilege”.[59] Second, there was no disclosure because an affidavit was filed with the Court.[60] The third claim is as follows (emphasis in original):[61]
Firstly, Mr Silva was not allowed in spite of two attempts (it is not fair to ask him to rely for the third time) to refer to the authority that would have sorted the legal issue but because it was prevented in a language which was inflated as to cause concern that his Honour was upset he was pressure [sic] into agreeing that there had been a disclosure. Disclosure to the world (combined with the voice used by His Honour) and use of language: “you can’t have a greater disclosure than tendering evidence in the court because it’s in the public domain” cause concern that the Judge is no [sic] open is of a very strong view, although legally wrong, Mr Silva had to figure out whether it was worth getting into hostile argument with he [sic] bench.
[59] AWS, [51], [52(i)]
[60] AWS, [52(ii)]
[61] AWS, [54]
It is necessary to untangle one aspect of the third claim; and that is the matter the applicants claim the Judge pressured Mr Silva into agreeing, namely, “that there had been disclosure”. During the hearing on 17 July 2018 Mr Silva confirmed that the matter the Judge pressured Mr Silva into agreeing is that the affidavit of the second applicant had been read into evidence. I did not understand Mr Silva to have submitted that the privilege he claimed was attached to the communications deposed to in the second applicant’s affidavit would continue to attach to those communications after the affidavit were to be read.
Thus, the conduct the Judge engaged in or is alleged to have engaged in in relation to Mr Silva’s attempted reliance on the Macedonian Orthodox Church case, and in relation to Mr Silva having accepted that the affidavit of the second applicant had been read, are as follows:
a)The Judge proceeding on what is asserted to be an erroneous understanding of the law or privilege.
b)The Judge not allowing Mr Silva to refer to the Macedonian Orthodox Church case.
c)The Judge using extreme language and a particular tone or tones of voice to pressure Mr Silva into agreeing with a proposition Mr Silva believed to be wrong, namely, that the affidavit of the second applicant had been read into evidence.
In assessing the applicants’ claims, I have listened to the recording of the hearing, and in particular to the exchange that I have set out in paragraph 7 of these reasons. I find that a fair-minded lay observer would have perceived that the Judge manifested a degree of impatience with some of the responses Mr Silva gave to the questions the Judge asked, and that impatience would have been manifested by the tone in which the Judge asked some of the questions. That by itself, however, would not necessarily lead to the conclusion that the fair minded lay observer would conclude that the Judge would decide the applicants’ application for an order under s.477(2) of the Act, and if such order is made, the substantive grounds contained in the application for judicial review, other than on their legal and factual merits.
This part of the applicants’ claim for recusal, like all other parts of their claim, must be assessed by reference to how the fair-minded lay observer would have perceived what the Judge did or did not do in relation to Mr Silva’s attempt to put before the Judge an authority Mr Silva submitted was relevant, and in relation to Mr Silva’s agreement that the affidavit of the second applicant had been read. In my opinion, the fair minded observer would have perceived the following:
a)There was an exchange between the Judge and Mr Silva about whether by filing and serving the second applicant’s affidavit the applicants had waived privilege in relation to the communications deposed to in the affidavit. Much of the exchange was devoted to the Judge attempting to understand the basis on which Mr Silva was asserting that privilege continued to attach to the communications deposed to in the second applicant’s affidavit, even though the applicants served the affidavit on the Minister, and even though Mr Silva proposed to rely on that affidavit.
b)In the course of the exchange the Judge manifested some impatience with some of the answers Mr Silva gave; but Mr Silva did what a fair-minded lay observer would expect counsel for the applicants would have done in these circumstances, namely, maintain the position for which he was advocating, being that privilege in relation to the communications deposed to in the second applicant’s affidavit was preserved and would be preserved until such time as the affidavit is read.
c)The point was reached where the Judge indicated to Mr Silva that he had read the second applicant’s affidavit; and that the affidavit, therefore, was “in evidence now before the court”. After further exchanges, Mr Silva accepted that the second applicant’s affidavit had been read, and that, as a consequence, privilege in relation to the communications deposed to in that affidavit had been waived.[62]
d)From the time Mr Silva accepted that the second applicant’s affidavit had been read, the hearing proceeded on the common assumption that Mr Swan would then be able to call for the production of documents that constituted or which related to the communications deposed to in the second applicant’s affidavit. That resulted in Mr Swan making a call for documents, and, later in the day, the applicants producing documents that partially answered that call.
e)Before the point had been reached where Mr Silva accepted that the reading of the second applicant’s affidavit waived the privilege that attached to the communications deposed to in that affidavit, Mr Silva informed the Judge that he wanted to take the Judge to an authority, and that the Judge said he was looking at the statute first and then Mr Silva could take the Judge to the authority. Mr Silva did not, however, later take the Judge to the authority, and the Judge did not ask that he be taken to the authority, because from the point at which Mr Silva accepted the affidavit had been read and that the affidavit, therefore, was “in evidence now before the court”, Mr Swan, Mr Silva, and the Judge proceeded on the assumption that whether or not privilege attached to the communications deposed to in the second affidavit before the affidavit was read was not an issue the Judge had to determine.
f)As I have already observed, it is reasonable to impute to the fair-minded lay observer an understanding that it is the role of counsel for a party to put to a judge matters that counsel considers to be relevant to the advancement or protection of the interests of the party counsel represents, and for counsel to conduct the case on behalf of the party counsel represents in a manner that, in counsel’s judgment, advances or protects the party’s interests.
[62] I should here record that at the hearing of 21 June 2018 I assumed that the second applicant’s affidavit had not been formally read at the hearing of 15 June 2018. Having read the transcript of 15 June 2018 I am under no doubt that I did formally read the second applicant’s affidavit.
In these circumstances I find that the fair minded lay observer would not have concluded that the Judge prevented Mr Silva from putting any case or submission he wanted to put to the Judge; or that the Judge pressured Mr Silva into agreeing to a proposition Mr Silva disagreed with. The fair-minded lay observer would have perceived that to the extent Mr Silva agreed with any proposition the Judge put to him, Mr Silva would have done so because, in Mr Silva’s judgment, such agreement advanced or at least did not harm the applicants’ interests.
I should also address this part of the claim to the extent it relies on the proposition that the Judge proceeded on an erroneous understanding of the law of privilege. Whether the Judge did so is not relevant to how the fair-minded lay observer would assess this aspect of the hearing. That is so because a fair minded lay observer would have understood that, although the Judge asked Mr Silva questions based on a particular understanding of the law, the Judge did not make a finding that his understanding of the law was correct; instead the Judge was asking questions of Mr Silva directed to the identification of the correct legal principle that applied to whether privilege had been waived.
In any event, to the extent the question of whether the Judge proceeded on an incorrect understanding of the law is relevant, there are four matters that may be noted:
a)First, the question that must be addressed when there is a claim of waiver of the privilege that is covered by s.118 and s.119 of the Evidence Act is that posed by s.122(2), namely, whether “the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 . . . ”. That is the question I suggested to Mr Silva that needed to be addressed, at least in the first instance. Mr Silva insisted that the question was that posed by s.122(3) of the Evidence Act. He did so, however, without acknowledging that s.122(3) of the Evidence Act provides that it is to be read without limiting s.122(2), and in apparent ignorance of authority binding on me, and in particular the judgment of the Full Federal Court in Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd.[63]
b)Second, the judgment of the Court of Appeal of New South Wales in Macedonian Orthodox Church was delivered on 29 June 2006 when s.122 of the Evidence Act did not contain what is now s.122(2). That subsection was introduced into the Evidence Act 1995 (NSW) as a result of the amendments made by the Evidence Amendment Act 2007 (NSW), and into the Evidence Act by the Evidence Amendment Act 2008 (Cth).
c)Third, the circumstances in Macedonian Orthodox Church might be considered not to be analogous to the filing and serving of the second applicant’s affidavit. The issue in Macedonian Orthodox Church was whether privilege had been waived in relation to a legal opinion a trustee had obtained in support of an application for judicial advice under s.63 of the Trustee Act 1925 (NSW), and which the trustee placed before the Supreme Court of New South Wales on a “confidential basis”. The legal opinion was not served or otherwise disclosed to any person or non-person. One of the questions was whether the trustee’s providing the legal opinion to the Supreme Court in these circumstances constituted disclosure of the opinion “to another person”. The Court of Appeal answered that question in the negative. No question appears to have arisen, however, about whether the giving of a privileged document to a person who is not a court constitutes disclosure to “another person”.
d)Fourth, the principle on which I understood Mr Silva to have been relying is one to the effect that “statements or affidavits filed and served in proceedings, but not read in open court, remain … subject to legal professional privilege”.[64] The Full Federal Court appears to have rejected that principle, at least where it can be said that the filing and serving of statement or affidavits was a deliberate act, and no unfairness would arise if it were to be held that privilege were waived.[65] But even if the principle is assumed to be correct, there may be some doubt whether the circumstances in which the applicants filed and served the second applicant’s affidavit would fall within the principle. It is not apparent that the applicants filed the second applicant’s affidavit pursuant to any order of the Court, or because the applicants were otherwise legally compelled to do so; and the text of the second applicant’s affidavit appears to have been reproduced in the submissions the applicants filed with the Court.
[63] [2009] FCAFC 32, at [102]. The question in that case was whether by serving proofs of evidence pursuant to court directions the privilege that attached to them immediately before they were served had been waived. The Full Federal Court held that privilege had been waived because although the proofs of evidence had been filed and served pursuant to a court order, that nevertheless constituted a deliberate act which, for that reason, would have rendered it inconsistent for the party who originally was entitled to the privilege to continue to claim privilege over the proofs of evidence.
[64] That is the formulation given in Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3, [15]
[65] Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32, at [102].
This part of the applicants’ claim for recusal, therefore, affords no basis on which a fair-minded lay observer might reasonably apprehend that I might decide the applicants’ application for an order under s.477(2) of the Act, and if such order is made, the substantive grounds contained in the application for judicial review, other than on their legal and factual merits.
Applicants harshly treated, claim (d) – Judge accusing applicants for not annexing privileged communications to affidavit and engaging in inconsistent behaviour
The basis on which the applicants claim the Judge criticised the applicants for the second applicant not annexing to her affidavit documents evidencing communications between the applicants and their former lawyers is the Judge stating to Mr Silva “your client has chosen not to annex those documents in the affidavit”.[66]
[66] T32.30
This statement must be considered in the context in which was made. It was made in the exchange I have reproduced in paragraph 13 of these reasons. The context is the Judge seeking to understand from Mr Silva why he failed to understand that the call for production of documents that Mr Swan made at around 11:28 required Mr Silva to make inquiries of the applicants about whether they held or could access documents that answered the call. In that context a fair minded lay person would not have regarded the Judge stating that the applicant had chosen not to annex documents as a criticism of the applicants.
The only basis on which the applicants claim the Judge accused the applicants of engaging in inconsistent behaviour appears to be his putting to Mr Silva that the relevant question to address when considering whether privilege has been waived is whether the applicants have acted inconsistently with their claiming privilege. A fair-minded lay observer would not have considered that the Judge accused the applicants of acting inconsistently with the assertion of privilege. A fair-minded lay observer would have considered the Judge informing Mr Silva what the Judge considered was the question that had to be addressed in determining whether the applicants had waived privilege over the communications deposed to in the second applicant’s affidavit.
Applicants harshly treated, claim (e) – the ““call for documents” incident”.
This part of the claim deals with the Judge adjourning the hearing for a short time to “compose [him]self” after Mr Silva informed the Judge he did not understand that he was required to make inquiries of the applicants about whether they held any documents that answered the call. Unlike the other parts of their claim for recusal, the applicants rely on how the “incident” “appeared to “the observer””, although the observer is not said to be the fair minded lay observer.[67] I have reproduced the relevant part of the transcript to which this claim relates in paragraph 13 of these reasons.
[67] AWS, [30]
This part of the AWS may be summarised as follows. First, it attempts to explain why Mr Silva did not understand that the call for production of documents required him to make inquiries of the applicants about whether they held any documents that answered the call.[68] I do not need to set out what that explanation is, first, because Mr Silva did not offer that explanation at the hearing and, second, as is apparent from the transcript, the Judge accepted at the hearing that Mr Silva, for whatever reason, had genuinely misunderstood what he was required to do in answer to the call for the production of documents.
[68] AWS, [30]-[35]
Second, the AWS states there was “some justification for his Honour to be upset”, but (as I read this part of the AWS), the upset the Judge manifested must be seen in the context that “at worst Mr. Silva’s inability to understand the “call” would have lost the Court a maximum of half an hour”;[69] and there was no suggestion that Mr Silva deliberately defied the call for documents.
[69] AWS, [36]
Third, the AWS submits as follows:[70]
For a judge to adjourn the hearing for a short time to calm himself because he was so upset with the Counsel is an extremely serious thing from the point of view of “the observer”. It was intimidating to Mr. Silva for he would have been justified in expecting that there is going to be some sanctions against him and that he had done something horrible in the eyes of the judge. “The Observer” could rightfully have expected that the Judge will take some action against Mr. Silva.
The observer would be puzzled because although the judge was justified in getting upset with Mr. Silva there was much more than that in the Judge’s anger. There must have been some other reason as well. So the question for the observer would have been what was the real reason for that anger. One possible thing would have been that the judge is holding Mr. Silva responsible for all the mishap about information not being available to the Court.
[70] AWS, [41]-[42]
At the hearing on 17 July 2018 Mr Silva suggested that “the observer” would perceive as the real reason for the Judge’s anger being Ms Anang’s not having produced documents by 2.15 pm.[71]
[71] 17.07.2018; T58.45
In my opinion, the fair-minded observer would have perceived the following:
a)Mr Silva informed the Judge he had not made any inquiries of the applicants in relation to the documents that were the subject of Mr Swan’s call for documents.
b)The Judge asked Mr Silva questions that were directed to understanding why Mr Silva had not made inquiries about the documents.
c)The Judge became angry; and he became angry because he was of the view that Mr Silva was at fault in not having made inquiries about documents in answer to Mr Swan’s call for production of documents.
d)The Judge dealt with his anger by adjourning the matter for a little while to compose himself, and to resume the hearing for the purpose of determining what the next steps should be.
e)On resuming the hearing the Judge discussed with Mr Swan and Mr Silva the further steps that should be taken in the proceeding, which included adjourning the proceeding and initiating steps and putting in place procedures for the production of documents.
f)Towards the end of the hearing Mr Silva said he apologised “for this call for production”. The Judge told Mr Silva that he accepted Mr Silva did not understand that Mr Swan’s making the call for the production of documents required Mr Silva to make inquiries of the applicants, and the Judge told Mr Silva he did not want Mr Silva to leave the hearing thinking the Judge had thoughts that Mr Silva had done anything untoward.
In these circumstances I do not find that the fair-minded lay observer would have perceived this part of the hearing in the manner the applicants submit an “observer” would have perceived it.
It follows, therefore, that the manner in which I dealt with Mr Silva’s not having made inquiries of the applicants in response to Mr Swan’s call for production, and in particular the anger I manifested by adjourning the hearing for a short time, affords no basis on which a fair-minded lay observer might reasonably apprehend that I might decide the applicants’ application for an order under s.477(2) of the Act, and if such order is made, the substantive grounds contained in the application for judicial review, other than on their legal and factual merits.
Lenient treatment of party at fault
The AWS claims the Minister was at fault, and the Judge treated the Minister leniently for his fault. The AWS makes three claims:
a)The Judge “did not accuse” the Minister “the same way” the Judge “accused Mr Silva because they were the one who are supposed to put the evidence to challenge our affidavits”.[72] The AWS particularly relies on the Judge stating to Mr Swan “nothing I’m saying is even a preliminary to a criticism” in the course of the Judge noting that the Minister’s not having sought to obtain by subpoena or notice to produce documents evidencing communications between the applicants and their former lawyers might prevent the laying of a foundation for an objection based on s.135 of the Evidence Act.
b)The Judge “supported the First respondent by asking the hypothetical question, that even Counsel for the First respondent didn’t dare put forward”.[73] That is a reference to that part of the transcript I have reproduced in paragraph 7 of these reasons commencing with the words: “Had the Minister issued a subpoena to the lawyer or issued a notice”. The AWS asks why the Judge would talk about the hypothetical situation.[74]
c)The Judge did not ask about “the reasonableness of contacting the applicants the day before to speak to Christopher Livingstone [sic] and Associates”.[75]
[72] AWS, [44]
[73] AWS, [46]
[74] AWS, [47(i)]
[75] AWS, [48]
These claims must be assessed by reference to what in fact occurred. Mr Silva did raise what a fair-minded lay observer would have understood to have been a complaint about the Minister, having been on notice since 4 January 2018 that the applicants had filed an affidavit that deposed to communications between the applicants and their former lawyers, not having done anything until the Minister attempted to contact their former lawyers the day before the hearing.[76] The fair-minded lay observer would have also understood, however, that the Judge put a hypothetical question to Mr Silva, with which he agreed, the effect of which was that even if the Minister had done things earlier then, on the view of privilege Mr Silva was advancing, the parties would be in no different position than that in which they found themselves at the hearing;[77] and in those circumstances the Judge asked Mr Silva what was the relevance of the Minister not having done anything since 4 January 2018. It would be convenient if I repeat here Mr Silva’s answer to that question:[78]
Well, the point that I was trying to make, your Honour, was that there was ample opportunity for six months. Nothing has been done. And last evening, a request is being made and my friend made a big issue of the fact that we haven’t responded to that. So all I’m saying is that we – our version is it has not been waived and therefore we came to the court with the view that it has not been waived, but as your Honour said, once it’s admitted, it’s a different matter. So that’s all.
[76] T13.45-T14.10
[77] T14.35
[78] T15.5
In these circumstances the fair-minded lay observer would have perceived that the relevance Mr Silva attached to the Minister’s not having done anything since 4 January 2018 was that the applicants had not waived privilege over the communications deposed to in the second applicants affidavit, they were entitled to maintain they had not waived privilege, and they had come to the hearing with that view. The fair-minded lay observer would not have understood Mr Silva as having invited the Judge to make some order against, or otherwise to criticise, the Minister for what occurred or did not occur before the hearing. In those circumstances the fair-minded lay observer would not have expected the Judge to make any order against the Minister or criticise the Minister; and would not, therefore, have regarded the Judge’s not making any such order or criticism as manifesting a display of any leniency or support by the Judge for the Minister.
It follows, therefore, that my asking Mr Silva a hypothetical question, and my failing to criticise, or make some adverse order against, the Minister, afford no basis on which a fair-minded lay observer might reasonably apprehend that I might decide the applicants’ application for an order under s.477(2) of the Act, and if such order is made, the substantive grounds contained in the application for judicial review, other than on their legal and factual merits.
Costs – fault on both sides
This complaint appears to be directed to the passage I reproduced in paragraph 18 of these reasons. The AWS submits that “[s]aying both parties are to blame was unfair”.[79] The AWS submits that the Judge should have asked counsel for the Minister a number of questions about the Minister’s lawyers’ inaction and actions before the hearing.
[79] AWS, [57]
A fair-minded lay observer would not have considered what the Judge said about costs as a statement to the effect that both parties are to blame. A fair-minded lay observer would have read that passage as the Judge counselling the parties to carefully consider whether they should apply for costs. Further, a fair-minded lay observer would not have expected the Judge to ask the questions the AWS contends the Judge should have asked about the Minister’s lawyers’ inaction and actions before the hearing. The fair-minded lay observe would have expected that if there were criticisms to be levelled at the Minister’s lawyers’ inaction and actions, they would have been levelled by counsel for the applicants making submissions to the Judge.
My making the statement that I reproduced in paragraph 18 of these reasons, therefore, affords no basis on which a fair-minded lay observer might reasonably apprehend that I might decide the applicants’ application for an order under s.477(2) of the Act, and if such order is made, the substantive grounds contained in the application for judicial review, other than on their legal and factual merits.
Mr Silva’s affidavit
Mr Silva made and filed his affidavit in response to my inviting him to explain in an affidavit, if he so chose, why the claim of bullying was not made in the Initiating Document, but was made for the first time at the hearing on 21 July 2018 without any prior notice. At the time I informed Mr Silva that I expected an affidavit from him, I was of the view that the applicants’ having made a claim of bullying in the circumstances they did could be taken to suggest that the claim of bullying was not made bona fide, but was instead made for the purpose of the applicants’ resiling from Mr Silva’s having accepted at the hearing of 15 June 2018 that the second applicant’s affidavit had been read; that the affidavit, therefore, was evidence before the Court; and that privilege over the communications deposed to in the affidavit has been waived.
I have taken the view, however, that whether or not the claim of bullying was or was not made bona fide is not an issue I need to consider. That is so because the only basis on which the applicants seek that I be recused is reasonable apprehension of bias. That means that the only matters with which I need to concern myself are the identification of the matters on which the applicants rely as giving rise to a reasonable apprehension of bias, and my determining whether those matters, considered individually and cumulatively, might lead a fair minded lay observer to conclude that I might decide the applicants’ application for an order under s.477(2) of the Act, and if such order is made, the substantive grounds contained in the application for judicial review, other than on their legal and factual merits. These are the matters with which I have concerned myself in these reasons for judgment.
This, then, leaves the question of what I should do about Mr Silva’s affidavit. As I noted earlier in these reasons, the applicants rely on it. Counsel for the Minister objected to my reading Mr Silva’s affidavit on the grounds of relevance. In my opinion the affidavit is irrelevant because it goes no further than asserting matters that purport to reflect Mr Silva’s subjective beliefs and perceptions about what occurred at the hearing on 15 June 2018. A short recitation of assertions Mr Silva makes in his affidavit bears this out. Mr Silva asserts the Judge was “provoked and incited to such a level that he was quite agitated and that we were being targeted by the Court”; the Judge “was not in the mood to let” Mr Silva put “the authority on privilege, that clearly stated the principle”; the Judge adopted the “kind of attitude” that “[f]ault is yours, so you explain”; that “[i]n spite of the fact that the whole issue is about privilege, to his Honour it was about our fault, that is inconsistent behaviour with asserting privilege”; that “[i]t was just that his Honour was intending to find fault with us”; and that “His Honour, while not knowing the correct law on privilege, refused to look at the correct authority and then engaged in exaggerated propositions on privilege”. These assertions are incapable of constituting evidence of how a fair-minded person would have perceived the events the assertions purport to represent.
Conclusion and disposition
The matters complained of, whether considered alone or cumulatively, afford no basis on which a fair-minded lay observer might reasonably apprehend that I might decide the applicants’ application for an order under s.477(2) of the Act, and if such order is made, the substantive grounds contained in the application for judicial review, other than on their legal and factual merits.
I propose, therefore, to order that the application for recusal be dismissed, reserve the question of costs, and set the matter down for a directions hearing at a date and time convenient to the Court and the parties.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 27 July 2018
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