Gallo v The Hon Justice Dawson

[1992] HCATrans 275

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M24 of 1990

B e t w e e n -

KATHLEEN GALLO

Appellant

and

THE HONOURABLE JUSTICE DAWSON

Respondent

MASON CJ
BRENNAN J

DEANE J· TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY. 25 SEPTEMBER 1992. AT 10.17 AM

Copyright in the High Court of Australia

Gallo(S) 1 25/9/92

MRS K. GALLO: If the Court pleases, Your Honour, I appear

in person.

MR G.A.A. NETTLE:  May it please the Court, I appear for the

respondent. (instructed by the Australian

Government Solicitor)

MASON CJ: Mrs Gallo, now if you would come round and stand

in front of the rostrum.

MRS GALLO:  Your Honour, the matter before the Court today

is my appeal, which was by notice made on

19 July 1990.

MASON CJ:	We have read the papers.
MRS GALLO:	I would like to refer to the judgment His Honour

Mr Justice McHugh made in the High Court.

MASON CJ: Justice McHugh's judgment?

MRS GALLO: Yes, which follows:

for an extension of time in which to file an

appeal, it is always necessary to consider the

prospect of the applicant succeeding in the

appeal: see Burns v. Grigg (1967) VR 871, at

p.872; Hughes, at pp. 263-264; Mitchelson

v. Mitchelson, (1979) 24 ALR 522 at page 524.

It is also necessary to bear in mind in such an application that, upon the expiry of the

time for appealing, the respondent has "a

vested right to retain the judgment" unless

the application is granted: Vilenius v

Heinegar, (1962) 36 ALJR 200, at p.201. It follows that, before the applicant can succeed

in this application, there must be material

upon which I can be satisfied that to refuse

the application would constitute an injustice.

I am terribly sorry, Your Honour, I started on the

wrong page. May I return to No 1 page, please.

MASON CJ: Yes.
MRS GALLO: His Honour McHugh:

This is a summons, dated 19 March 1990, for an extension of time in which - - -

MASON CJ: Mrs Gallo, there is no need to read the whole of

the judgment. We have read the judgment. What you

should do is present an argument to us if	you are
so minded with a view to showing that the	ground on

Gallo(5) 2 25/9/92

which the judge decided the application against you
was wrong.

MRS GALLO:  I tried to come to that, Your Honour, by showing

that matters which were mentioned in His Honour's

judgment:

The order was made by Wilson J. on

19 October 1988 -

against which the extension of time for appeal was

made:

In her action, the applicant claimed damages

against the respondent "in consequence of

bias". Wilson J. upheld the contention of the
respondent that the action was "fatally flawed

because the applicant's affidavit had made it

clear that the conduct alleged was undertaken

in the performance of the respondent's

judicial duties and that there was no

suggestion that he lacked jurisdiction to

perform the acts alleged against him. In

addition, Wilson J said that, on the material

before the Court, "there is no justification

whatever for the [applicant's] apprehension of

bias".

Your Honour, in this matter I would like to

refer to the writ that I have issued on 9 August

1988 in the documents that I submitted to have a

chance to have a look what was actually -

MASON CJ: Yes, we have the documents.

MRS GALLO:  - - - in the general endorsement. I believe

there is no mention in bias - as far as

straight-out bias in the writ. As far as

His Honour remarked that there was no reason for any apprehension of bias, I have been searching

reference, judgments, Your Honour, to bring the

matter of bias, what it actually means, how it is
tested and what actually bias is.	I found the

following case which was before the Queens Bench,

(1969), and the matter concerned appeal from a

district court judgment which denied application

for certiorari in a judgment what the party against

which the judgment was made found unjust and

unfair.

This matter is Metropolitan Properties Co v

Lannon & Ors and listed on 577 right up until 607,
Your Honours. There is no need to go into the main

part of the matter but a short resume of the

justice follows on page 578:

Gallo(S) 3 25/9/92

The rent determined was substantially below

the figure suggested by the expert called by

certiorari, and by consent argued, an

even the tenants. The landlords appealed

under section 9 of the Tribunals and Inquiries

allegation that the committee chairman was
disqualified from hearing the cause since

there was reasonable grounds for the landlords

to believe that he could not give them an

unbiased hearing. No suggestion of actual

bias was made against the chairman, a

solicitor in partnership, who resided with his

parents in Regency Lodge -

et cetera.

Lord Denning remarked on the matter on

page 579:

A man may be disqualified from sitting in

a judicial capacity if he has a direct

pecuniary interest in the subject-matter or if

he is biased in favour of one side or against

the other.

The first condition, Your Honour, of course, has no relevance to the present matter, but I believe

the second, where His Honour says that:

if he is biased in favour of one side or

against the other.

In that case, further debate that what we believe

is the test to decide what is bias.

I would like to turn now to page 598,

Your Honour, in this matter, where it comes as

follows - Lord Denning's decision in the matter.

A man may be disqualified from sitting in

a judicial capacity on one of two grounds.

First, a "direct pecuniary interest" in the subject-matter. Second, "bias" in favour of

one side or against the other.

I leave out what is not relevant, Your Honour,

only the important matter to make my submission

shorter. So far as bias is concerned, it was

acknowledged that there was no actual bias but it

was said that there was, albeit unconsciously, a

real likelihood of bias. This is a matter on which
the law is rtot altogether clear but I start with

the oft-repeated saying of Lord Hewart,

Chief Justice, in Rex v Sussex Justices, Ex parte

McCarthy:

Gallo(5) 4 25/9/92

It is not merely of some importance, but is of

fundamental importance that justice should not

only be done, but should manifestly and

undoubtedly be seen to be done.

So if - this is the middle of the next paragraph:

there was a real likelihood of bias on his

part, then he should not sit. And if he does

sit, his decision cannot stand: see Reg v

Huggins, and Rex v Sunderland Justices.

Nevertheless there must appear to be a real

likelihood of bias. Surmise of conjecture is

not enough: see Reg v Camborne Justices,

Ex parte Pearce, and Reg v Nailsworth

Licensing Justices, Ex parte Bird. There must

be circumstances from which a reasonable man

would think it likely or probable that the

justice, or chairman, as the case may be,

would, or did, favour one side unfairly at the

expense of the other. The court will not

inquire whether he did, in fact, favour one

side unfairly. Suffice it that reasonable

people might think he did. The reason is
plain enough. Justice must be rooted in

confidence.

I turn to page 600 of the report, Your Honour:

No man can be an advocate for or against

a party in one proceeding, and at the same

time sit as a judge of that party in another

proceeding. Everyone would agree that a

judge, or a barrister or solicitor (when he

sits ad hoc as a member of a tribunal) should

not sit on a case to which a near relative or

a close friend is a party.

But this is not important to the matter.

I hold, therefore, that Mr John Lannon

ought not to have sat on this rent assessment

committee. The decision is voidable on that

account and should be avoided.

I would allow the appeal and remit the

case to another rent assessment committee.

Justice Danckwerts also agreed and he had further

comments to make to the decision.

On the other point -

This is on page 601C:

I find it extremely difficult to make up my

mind. There has been very considerable

Gallo(S) 5 25/9/92

discussion as to the basis of the jurisdiction	relating to bias in regard to a judicial or
semi-judicial tribunal, which I find the more difficult to apply in view of the statement that actual bias is not alleged in the present
case. The doubts seem to me not to be wholly resolved even now.

On page 604 the honourable judge under C furthered

his comments:

The second ground upon which the decision

is attacked has occasioned me more difficulty.

The appellants submit that the Divisional

Court "misdirected itself in holding that on

the facts proved or admitted there were no

sufficient grounds for the

appellant-applicants to believe that the said

John Lannon" - that is, the chairman of the committee - "could not give them an unbiased

hearing." Not until a late stage in the

hearing of this appeal was that matter touched

upon.

On page 605, Your Honours, His Honour debated

that problem, if he would agree to the judgment

handed down by Lord Denning or did defer.	From the
bench he said:

Nor in my judgment will the public

interest be served if, in the light of all the

circumstances as they finally emerge, it

appears to right-thinking people that there

are solid grounds for suspecting that a member

of the tribunal responsible for the decision

may (however unconsciously) have been biased.

But it must be conceded that the tide of

judicial opinion is to some extent in favour

of the professor. Thus, in Healey v Rauhina,

Hutchinson J, after reviewing the cases, said:

" ••• the weight of authority now is that the

test to be applied is that of real likelihood

of bias, and that reasonable suspicion of bias

is insufficient."

And in Reg v Barnsley Licensing Justices,

referring to the dissenting judgment of

Salmon Jin the Divisional Court, Devlin LJ

said:

"I am not quite sure what test Salmon J

applied. If he applied the test based on the

principle that justice must not only be done

but manifestly be seen to be done, I think he

came to the right conclusion on that test.

Gallo(5) 6 25/9/92

••. But •.• it is not the test. We have not to

enquire what impression might be left on the

minds of the present applicants or on the

minds of the public generally. We have to

satisfy ourselves that there was a real

likelihood of bias - not merely satisfy

ourselves that that was the sort of impression

that might reasonably get abroad. The term

'real likelihood of bias' is not used, in my

opinion, to import the principle in Rex v

Sussex Justices to which Salmon J referred.

It is used to show that it is not necessary

that actual bias should be proved. It is

unnecessary ... to investigate the state of

mind of each individual justice. 'Real

likelihood' depends on the impression which

the court gets from the circumstances in which

the justices were sitting. Do they give rise

to a real likelihood that the justices might

be biased? The court might come to the

conclusion that there was such a likelihood,

without impugning the affidavit of a justice

that he was not in fact biased. Bias is or

may be an unconscious thing ••• The matter

must be determined upon the probabilities to

be inferred from the circumstances in which

the justices sat."

He also concurred with the judgment and the

appeal was allowed, Your Honours. I hope,

Your Honour, that gave ground to my present application by showing that there is a matter in

the action which has to be decided. If in the

matter of fact His Honour was biased according to

the ••••• of bias in the influencing the decision of

the Court or not. And further, I would like to say

a few matters concerning my application before

His Honour McHugh.

It was only one summons, Your Honour, before

His Honour at the hearing.

the belief that the affidavit which is supposed to I made my submission in

be together with the file before His Honour, it is

there but it was not, His Honour especially asked
for the affidavit and I explained that due to
certain mishap or misfortune the Registrar who

said, when I lodged my application at the registry,

that it is no need to have another affidavit in the

matter because they can use the one previously I

filed. And, Your Honour, I filed in the matter

three different applications.

The first one, I prepared the draft in October

before the end of the month in 1988. This is on

the list of documents, Your Honour, as a draft

motion. I have been told that the motion is not

the suitable form under the circumstances because I

Gallo(S) 7 25/9/92

do not have to have leave application and it has to

be done on a different form.

Due to circumstances that I had a matter going

in the New South Wales Supreme Court at the time,

Your Honour, and I had to make several journeys, I

was unable to file the matter in time, and I have

been advised that since the time has expired it

does not matter when the application will come to

register because there is no time limit,

Your Honour, on Order 60 rule 6, I think, whereby

an application can be made out of time and it can

be granted.

Those matters - I do not know whether

Your Honour allow me to read - Your Honour, the

first draft matter was in October 1988. I made the

notice of motion in November 1989 and this matter

was not proceeded with. I have the document on the document list, Your Honour, under No 7, the receipt from the lodging and I was not given a date when

the matter would proceed and I have been told at a

later date that I have to file a new application in

the matter. That is how it came about the February
application by summons.

Due to unfortunate circumstances, Your Honour, I had mishap on the way to go to the hearing and I

could not be there in time; the matter was struck

out. Instead of having an appeal, what I meant to

to have an application to set aside due to

circumstances, I had to file another application

which was proceeded with before His Honour

Mr Justice McHugh. This would be the story, Your

Honour, which caused the delay and since there was

no special detail in the order concerning the

length of time when an appeal could be made, I

would submit, Your Honour, that would that be a

good enough reason to disallow an application on

that ground or not. And I hope that Your Honour

will find that no, because if it would be any

terminal date to say that, but even if you are

late, if you are later than six months, two months,

or whatever it is, your application would not be

granted, that would be a different matter.

But as far as the intention, Your Honour, the

intention was there. As far as the searches, what

I mentioned in my affidavit was concerned, I have

been, to put it in lay language, Your Honour,

told •..•. by the registry to make an appeal

proceeding in the matter saying that by

His Honour's judgment I would not have told to

.•••• , not mentioning delay, probably would be a

waste of time to bring it before the Court.

Gallo(S) 8 25/9/92

But, Your Honour, since we solved our

differences the order was .mainly made upon the

decision by Rajski v Powell in the New South Wales

court. This application was allowed conditionally.

It was allowed on the point that whenever a judge

or justice act outside of his jurisdiction, he is

not entitled to the protection that the law provide

for him. This matter is quite lengthy, detailed

proceeding where His Honour Mr Justice Kirby was

proceeding together with Davies J and I believe

Priestley J. All the differences in favour of

dismissing the application was brought in my case

when His Honour Mr Justice Wilson heard.

However, strangely enough, it was never

mentioned the partial immunity of the justice in

cases like my writ is complaining about.

Your Honour, I believe that should have been taken

into consideration and even if I would have been

allowed to go as far as delivering a statement of

claim since my writ was only endorsed, Your Honour.

It was not meant to be a statement of claim and if

I fail to show better cause than the endorsement

said, it would have been a different matter.

But this question mark, if it was fair and

just to have dismissed it on the principal

condition that first in my lifetime, Your Honour,

in my rather undistinguished proceedings, it was

not mattered •...• justly ••.•. because it was only an

endorsement. It was this part of that struck out.

If Your Honour pleases, should I go in detail

about Rajski v Powell?

MASON CJ:  It is a matter for you, Mrs Gallo, but we

understand, I think, what you have attempted to put

~efore us so far. But you need to bear in mind

that the ground on which Justice McHugh, and for
that matter Justice Wilson, decided this case

against you was that there is a well-established

principle of the common law which attaches immunity

to the acts of a Judge done in the performance of

his judicial duties and that that precludes your

success in the action. Now, that is the ground

that has been taken against you and has been upheld

by two Judges.

MRS GALLO: Yes, Your Honour, but the question arises that:

does a Judge act in judicature if he steps out from

the given duty of a Justice to act in the law of

natural justice which would give hearing to a

person who has a claim and who heard the hearing by

an unbiased Court, unbiased Justices? This is the

other matter, Your Honour, which could have been

decided that was His Honour really acting in

jurisdiction when he knowingly knew his own

Gallo(S) 9 25/9/92

circumstances and with the same token with so many luck of hearing Justices who never heard of what is

going on in Victoria and they would decide the

matter and the application not by outside information but I could not object at all,

Your Honour, because I was not given a chance.

So just those two matters: how far did the

bias escalate in my case and did the bias,
Your Honour, minimize the Justice's right to

immunity? Probably, Your Honour, my biggest

mistake was asking for damages. But I did not ask

for money damages and damages come with many

different ways and one way would be - I am not

asking for monetary damages. I like to stand on my

own legs to show Your Honour that those matters

which were brought against me, they have been

unfairly brought and I have proof for those by the

research made under the new law of being able to

obtain information from the relevant authorities

that what was put against me, Your Honour, was

altogether hearsay, malicious information, and I

did not have a chance to say no, because whenever I

asked to the defence and say, "Please, listen to

me"; nobody listened, Your Honour. You said, "You

just be quiet". No more. Who would hear that. And

I think this is extremely unfair.

What was put against me, Your Honour, was

altogether hearsay, malicious information, and I

did not have a chance to say no because they were

asked to repent and say, please, listen to me;

nobody listened, Your Honour. They said, "You just

be quiet". No more ••••• and I think this is

extremely unfair.

Your Honour, concerning the matter His Honour

judgment on page 6 when he says that my

application, the change of - amended change that I

intended to make, that instead of damages I would

have set aside. This was misunderstood on the

point, Your Honour, that the Attorney-General in

the matter of section 33, which would be the

vexatious litigant action, order in that Supreme

Court Act. The Attorney-General did not bring the

case, Your Honour, on his own behalf. He was

supposed to be only a supporting, alternative

behind it. In the supreme court rules and orders

there is no practical rule to say what you do under

the circumstances but that rule does not exclude

appeals. So the meaning of it would have been that

whenever any matter I intended to make, I had to

have an application to proceed. It did not mean

that the Attorney-General had to be present all

Gallo(S) 10 25/9/92

those times to read my application.	It was simply
a form.

The matter that I would ask to have the

hearing concerning this matter which started off

really the present matter, going back to 1988, this

would be the consequence, not necessarily by order

granting dismissal. That would be a separate

proceeding before the Court.

Your Honour, strangely enough, this judgment

refers constantly to affidavit which His Honour

never had a chance to have a look before he made

his judgment and it gave me a very stronger and

long time to think about it, that how is that

possible, Your Honour, to make an order without

knowing really what was in the affidavit and give

reasons for judgment referring to the said

affidavit. That would have been then that the

matter was long before decided His Honour heard the
matter from me or whoever prepared the reasons for

judgment forgot about the fact that the only

document was a short summons before His Honour at

the hearing.

So with little misunderstanding of that sort

appeared several times in my cases, Your Honour,

but being the case that I am just speaking for

myself and I am not taken as, we say, a full grown

person as far as legal knowledge is concerned.

This is quite understandable because despite,

Your Honour, that I several times applied to the

universities to study law and I had my proper

qualification to be able to be taken, I could not

get a place, and that hurt me very much, because

even if I never would have made a solicitor, but it

would have given me the sufficient knowledge to

stand before Your Honours with confidence of an

educated person in law, but unfortunately I was not

lucky enough to proceed. And that is why, when

MASON CJ: Mrs Gallo, we have heard what you have had to say	His Honour referred in the judgment on page 6 -	in support of your application. Have you anything
else to say?

MRS GALLO:  Your Honour, this was the list on my

application - the matter of bias and did the

Justice have - - -

MASON CJ: Well, we understand what you have said.

MRS GALLO:  If Your Honour pleases, this is all what I have

to say.

MASON CJ: Yes, thank you, Mrs Gallo.

Gallo(S) 11 25/9/92

MRS GALLO:  Thank you, Your Honour.

MASON CJ: The Court will take a short adjournment in order

to consider the course it will take in this matter.

AT 10.57 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.02 AM:

MASON CJ: The Court need not trouble you, Mr Nettle.

MR NETTLE: If the Court pleases.

(Reasons for judgment were delivered)

MASON CJ: In the circumstances, the proposed appeal from

the order of Justice Wilson dismissing the action

would have no prospect of success, and Justice

McHugh rightly refused the application for an

extension of time.	The appeal must therefore be
dismissed.	Mr Nettle?

MR NETTLE:  If the Court pleases, I ask for the cost of the

appeal?

MASON CJ: Yes. Now, Mrs Gallo, Mr Nettle has asked for

costs. Do you have anything to say on the question

of costs?

MRS GALLO:  Your Honour, probably generally one thing. That

since past years I have had rather unfortunate

circumstances. Mainly because of court. Sorry,
Your Honour.	Due to circumstances in past years

which was the main reason of the several matters I

have to bring before the Court, I was made

absolutely poor. They took everything away from

me. I am on the pension at the present and I leave

it in Your Honour's hands, whatever the decision

is.

MASON CJ: Yes, thank you, Mrs Gallo.

The ordinary rule is that costs follow the

event. There is no reason in this case to depart

from the ordinary rule, therefore the appeal will

be dismissed with costs.

AT 11.08 AM THE MATTER WAS ADJOURNED SINE DIE

Gallo(S) 12 25/9/92