GJ v AS (No 2)
[2015] ACTCA 18
•8 May 2015
HUMAN RIGHTS ACT
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | GJ v AS (No 2) |
Citation: | [2015] ACTCA 18 |
Hearing Dates: | 8 May 2015 |
DecisionDate: | 8 May 2015 |
Delivery of ReasonsDate: | 3 August 2015 |
Before: | Refshauge J |
Decision: | The application that the Honourable Justice Refshauge disqualify himself from hearing the appeal is dismissed. |
Category: | Principal Judgment |
Catchwords: | APPEAL – Application for the disqualification of a judge – Allegation of bias – Reasonable apprehension of bias – Claimed association too remote as to constitute bias – Participation in the making of the rules of the court – Judge’s involvement in case management – Accepting an address for service |
Legislation Cited: | Court Procedures Act 2004 (ACT), ss 9, Pt 11 Domestic Violence and Protection Orders Act 2001 (ACT), Pt 3 Court Procedures Rules 2006 (ACT), rr 4, 5051, Pt 5.4, Table 5051 |
Cases Cited: | Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority (ACT) (2008) 2 ACTLR 44 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 |
Texts Cited: | John Tarrant in Disqualification for Bias (The Federation Press: Sydney, 2012) |
Parties: | GJ (Appellant) AS (Respondent) |
Representation: | Counsel GJ (Self-Represented) (Appellant) Mr S Malcolmson (Respondent) |
| Solicitors Self-Represented (Appellant) Eaton Lawyers (Respondent) | |
File Number(s): | ACTCA 42 of 2014 |
Decision under appeal: | Court: ACT Supreme Court Before: Penfold J Date of Decisions: 11 August 2014 and 18 March 2015 Case Title: GJ v AS Court File Number: SCA 22 of 2012 |
REFSHAUGE:
The appellant, GJ, has commenced an appeal against decisions of Penfold J in GJ v AS (2014) 288 FLR 152; [2014] ATSC 189 and GJ v AS [2015] ACTSC 66.
The bench assembled for the appeal originally consisted of Burns J, Rangiah J and myself. At a directions hearing, both GJ and counsel for AS pointed out that Burns J had been involved in the proceedings in the Magistrates Court when his Honour had been Chief Magistrate. His Honour agreed not to sit and was replaced by Walmsley AJ.
About two weeks before the appeal was to be heard, GJ sent an email to my Associate foreshadowing a request that I disqualify myself. I was just about to depart on a week’s leave and the matter could not be heard until I returned at the beginning of the week on the Friday of which the appeal was to be heard.
Pressure of business for which I was already listed meant that the first available time to hear the application was at 11.30 am on the day before the appeal was listed to be heard. By a most regrettable error in the Registry, the application was not listed until the commencement of the appeal.
With the generous consent of the parties, I arranged for it to be listed a little earlier than the commencement of the appeal; it could not be listed earlier because of the pressure of the court’s business.
Application
The Application in Proceedings sought that I disqualify myself from my further hearing of the appeal “on the grounds of bias”.
As summarised by John Tarrant in Disqualification for Bias (The Federation Press: Sydney, 2012) at p 1, the position is as follows:
Most decision-makers will be disqualified from hearing a case, deciding a matter or making a decision if they lack independence or have an actual bias or if there is an apprehension that they lack independence or impartiality.
As is apparent, and well-known, there are two forms of bias: actual bias or an apprehension of bias. Actual bias requires inevitable disqualification, perhaps subject to the principle of necessity. As Cole JA pointed out in Ramadan v New South Wales Insurance Ministerial Corporation (Unreported, NSW Court of Appeal, Kirby P, Cole JA and Rolfe AJA, CA 40528/94, 7 April 1995) at p 17, there is “a critical distinction between an allegation of actual bias and an allegation of reasonable apprehension of bias”.
In argument, GJ was a little uncertain, initially suggesting that she relied on actual bias as well as apprehended bias, but ultimately abandoned any reliance on actual bias and simply relied on apprehended bias as the basis for her application.
On 8 May 2015, I dismissed the application. I said I would give my reasons later. These are my reasons.
The grounds of bias
In a rather rambling affidavit and written submissions, GJ set out the grounds on which she claimed that an ordinary reasonable member of the community, who was fair-minded and informed, might apprehend that I was biased against GJ.
There seemed to be four grounds on which the application was made that could be distilled from this material. They were:
1. that I had a relevant association with Marek Reardon;
2. that I had participated in the making of r 4 of the Court Procedures Rules 2006 (ACT);
3. that I had caused financial pressure on her by making directions for the conduct of the appeal that had resulted in her having to expend funds; and
4. that I had acted inconsistently in relation to the setting of an address for service which disadvantaged her.
At the hearing of the application, GJ, agreed that this was an accurate identification of the relevant grounds.
The test of apprehended bias
GJ submitted that she was entitled to a fair hearing. That must be so. While fairness is, and should be, a normal incident of judicial decision-making generally, this requirement is re-inforced in this Territory through s 21(1) of the Human Rights Act 2004 (ACT) which provides:
Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
As I pointed out in Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority (ACT) (2008) 2 ACTLR 44 at 54; [38], this right applies to civil proceedings and is not limited to criminal proceedings.
In Smits v Roach (2006) 227 CLR 423 at 460; [104], Kirby J said of these requirements:
Independence connotes separation from other branches of government but also independence from the litigants, their interests and their representatives. Impartiality is concerned with the judge's approach to the hearing and the determination of matters in dispute. The central importance of ensuring the reality and appearance of independence and impartiality in courts and tribunals is repeatedly emphasised in international and regional courts and bodies considering such questions.
(footnotes omitted)
The test to be applied has been authoritatively determined by the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345; [8] as follows:
First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
This approach has been confirmed and applied by the High Court since then. See, for example, Smits v Roach at 438; [40], 444; [56] and 458-9; [102]; Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 at 990; [27]; Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at 77; [66].
The grounds – association with Marek Reardon
Mr Reardon is not a party to these proceedings. GJ, however, has commenced proceedings against him for defamation and those proceedings arise out of the use of an internet blog by Mr Reardon, a solicitor, and with which AS is associated.
The principal association with this appeal, to make him relevant, however, is that Mr Reardon’s firm acted for AS in certain proceedings in the Magistrates Court and the Supreme Court.
The alleged association with me is that I am an Adjunct Professor in the ANU College of Law of the Australian National University and Mr Reardon states on his firm’s website that he is “a sessional academic with the Australian National University College of Law in the University’s Graduate Diploma of Legal Practice”.
GJ did not, in her affidavit or her submissions, show any logical connection between this association and “the feared deviation from the course of deciding the [appeal] on its merits”.
The facts are, as stated in the hearing, that I have not knowingly met Mr Reardon and neither know him or of his work at the ANU. In my position with the ANU College of Law, I deliver some lectures on pleadings each year to undergraduates and judge some mooting competitions. I am also a member of a couple of committees of the College and have a number of informal connections there. I have not, for some years, had any involvement in the delivery of the Graduate Diploma of Legal Practice.
This claimed association is so remote as not to meet the first limb of the test propounded by the High Court in Ebner.
The grounds – involvement in the Rules
GJ claims that r 4 of the Court Procedures Rules, in its present form, has worked an injustice against her. That is because, she submits, the rule was amended to have “whether intentionally, recklessly or by mistake put further unnecessary financial pressure on [GJ]”. GJ asserts, correctly, that I was at the relevant time, the chair of the Joint Rules Advisory Committee established under s 11 of the Court Procedures Act 2004 (ACT).
The position is, in fact, not as GJ submits. The amendment which has the effect which she claims is actually an amendment to Table 5051 of the Court Procedures Rules. This table provided that the procedure for appeals to the Supreme Court applies to decisions of the Magistrates Court under various pieces of legislation. In the relevant amendment, the subject of GJ’s complaint, appeals from the Magistrates Court under the Domestic Violence and Protection Orders Act 2001 (ACT) were added to Table 5051. Contrary to the claim by GJ, r 4 was not amended, though a Note was added to it, referring to r 5051 and the Table attached.
It is also important to note that the change to Table 5051 only related to appeals from the Magistrates Court to the Supreme Court, that is the appeal heard by Penfold J, GJ v AS, and not to this appeal to the Court of Appeal.
The reason r 4 excludes proceedings under the Domestic Violence and Protection Orders Act from regulation under the Court Procedures Rules is that the Act itself makes extensive provision for the procedure to be applied in hearings for orders under the Act (see Pt 3), making it more appropriate to leave the procedure as set out in the Act and not try to vary or exclude those parts of the Court Procedures Rules which are not consistent. There is, of course, power to supplement the procedure in the Act expressly if there are gaps, as the reference in r 4 to the rule being subject to any other Territory law makes clear.
The Act, however, does not take the same approach to appeals. While Pt 11 of the Act does make provision for such appeals, the specific provisions are not significantly different in extent, nature or detail to the provision for appeals from the Magistrates Court in civil and criminal matters set out in Pts 3.10 and 4.5 of the Magistrates Court Act 1930 (ACT), to which Table 5051 also makes the Court Procedures Rules applicable. The same rules as are made applicable to appeals under the Domestic Violence and Protection Orders Act. That seems appropriate.
The position of the appeal to the Court of Appeal, however, is different. The appeal from the decision of Penfold J is not made under the Domestic Violence and Protection Orders Act, but under s 37E of the Supreme Court Act 1933 (ACT). Thus, r 4 and, indeed, r 5051 and Table 5051 of the Court Procedures Rules are not relevant to that appeal.
An appeal is a creature of statute, as the Court of Appeal has recently pointed out in Roberts v Rhodes [2014] ACTCA 20 at [10]. It is the statute which determines the right to appeal and the nature of the appeal. In the case of an appeal from a decision of the Supreme Court to the Court of Appeal, the relevant statute is, in this case, not the Domestic Violence and Protection Orders Act but the Supreme Court Act.
Whatever may be the position prior to the amendment to Table 5051, appeals to the Court of Appeal have, since they were instituted in 2002, been subject to rules substantially in the form that now appear in Pt 5.4 of the Court Procedures Rules. These have applied since the Court Procedures Rules were made in 2006. At that stage I was not a member of the Rule Making Committee established under s 9 of the Court Procedures Act.
In any event, it does not seem to me that the participation by a judge in the making of a rule of court necessarily means that the judge is disqualified from considering whether the rule is valid.
Under s 123 of the Family Law Act 1975 (Cth), the rules of the Family Court of Australia have, since 1983 (s 75 of the Family Law Amendment Act 1983 (Cth)) been made by the judges of that court or a majority of them. That court has, nevertheless, had occasion to consider the validity of its rules, despite the judges being the makers. See, for example, In the Marriage of Lowe & Harrington (1995) 125 FLR 19. Although the High Court reversed the decision in Harrington v Lowe (1996) 190 CLR 311, it made no suggestion that there was any problem occasioned by, in effect, the makers of the rules passing on their validity. In any event, the court restored the decision as to validity made by the trial court, constituted, of course, by a judge of the court, himself a rule maker.
GJ did not explain further how the amendment to Table 5051 was a source of possible bias to her, such as to prevent me from deciding the issues on the appeal independently or impartially.
While GJ is not represented by a lawyer, she is a lawyer herself and has filed comprehensive and detailed submissions which address complex matters of law by reference to authority. Even allowing for her comment that she did not practice extensively in the civil law area, issues of apprehended bias are frequent in the criminal law as well as in the civil law. Accordingly, it is not for the court to speculate on what case she may wish to make.
In my view, my brief and justified involvement with the 2011 amendment to Table 5051 of the Court Procedures Rules would not lead a reasonable, fair-minded and informed member of the community to apprehend that I was biased against GJ.
The grounds – case management orders
On 18 March 2015, I became involved in case managing this appeal because of the delay in the completion and filing of the Appeal Book in preparation for the hearing of the appeal. I made directions then and subsequently.
The basis on which GJ seems to suggest that the directions I made gave an apprehension of bias were:
(1) that I did not insist that AS have a street address as an address for service;
(2) that I required her to file four copies of the Appeal Books; and
(3) that I gave directions as to the way in which the preparation and certification of the Appeal Book was to be completed.
The first issue will be dealt with under the next heading.
I turn then to the number of copies of Appeal Books. Ordinarily, an appellant is required to prepare at least six copies of the Appeal Book plus the copies the appellant requires for the use of the appellant’s lawyers, that is four for the Court, two for the respondent (or, if there is more than one respondent, two for each respondent) and, if the appellant needs two, then a total of eight will be prepared.
GJ says that she was told to prepare four Appeal Books and file two of them, leaving one each for her and AS. I find that very strange. The Court of Appeal will be constituted of three judges, each of whom will require his or her own Appeal Book. The Court will also need a copy for the file as it is inappropriate for an Appeal Book used by a judge (and often annotated) to be used as the file copy.
I have inspected the bench sheets of the directions hearings before the Deputy Registrar on 6 November 2014, 10 December 2014, 4 February 2015 and 11 February 2015. There is no reference to a special direction about the number of Appeal Books to be prepared or of an entitlement to prepare any electronically.
I can, therefore, only assume that there was a miscommunication and that when the Deputy Registrar gave directions about the number of Appeal Books, GJ heard four in total when what was said or intended to be said was four for the Court.
The need for four Appeal Books to be filed is essential for the proper functioning of the Court. It is only possible to waive as a requirement in exceptional circumstances, when the Court would be required to prepare them, a task for which the registry is neither funded nor staffed. I see no reason why GJ should not be subject to the requirements imposed on every other appellant in the Court of Appeal. To make that requirement cannot be seen as treating GJ in such a way as to disclose bias against her or to result in reasonable, fair-minded and informed members of the community apprehending that I would be biased against her.
As to the third issue, it arose in this way. On 10 December 2014, the Deputy Registrar ordered that the Appeal Books be filed and served by 28 January 2015. That was not done.
On 11 February 2015, it was directed that the draft Appeal Book was to be served on AS for certification by 28 February 2015, who was to certify them by 11 March 2015 and the Appeal Books were to be filed by 25 March 2015. That was not done.
It was as a result of these delays that I commenced to case manage the proceedings. I have set out the background in GJ v AS [2015] ACTCA 12. I do not need to repeat it. It is clear that the court needed to get involved to break the deadlock.
As a result, I prepared some draft directions which I circulated to the parties and, after delivering my decision on 14 April 2015, proceeded to consider the draft directions.
Although GJ still submitted that I should direct AS to have a street address as his address for service (a matter I deal with below), I did not accede to that.
The directions I made were substantially changed from the draft as the parties managed to come to some agreement about how to proceed. In particular, AS’s lawyers agreed that when the draft Appeal Book was sent to them for certifying, they would make a copy to save the need for it to be returned, copied and a copy re-sent to them. That relieved GJ of the need to prepare and serve copies of the Appeal Book on them.
The orders did require GJ to spend money on Express Post. That is not a cheap form of postage, but it was necessary given the short time prior to hearing of the appeal and the need for the parties to have the Appeal Book in final form by reference to which they were to prepare their submissions.
I heard both parties on the directions and ultimately both parties appeared to me to accept the compromise they represented.
I think that the directions I made could not lead a reasonable, fair-minded and informed member of the community to apprehend that I would be biased against GJ.
This ground is not made out.
The grounds – address for service
The matter of the address for service of the parties was clearly a matter that was of significant concern to GJ. She considered that I had been inconsistent in my dealing with her.
In separate proceedings involving Mr Reardon (SC No 395 of 2014), I also made some directions. In that case, the name of which should not be disclosed in these proceedings, I dealt with an application for an extension of time within which GJ could commence certain proceedings. I held that she did not need leave.
I then gave some directions to enable the proceedings to be properly prosecuted. An issue arose about the address for service of GJ on the originating claim.
Mr S Malcolmson, who appeared for Mr Reardon, requested that GJ include her street address as her address for service. GJ opposed that on the ground that she had been involved in proceedings under the Domestic Violence and Protection Orders Act, for which she did not have to give a street address as she had fears for her safety.
The following exchange then occurred:
[GJ]:- - - Magistrate Dingwall said I didn’t have to give my address. However - - -
HIS HONOUR: But those are different proceedings.
[GJ]:- - - Mr Malcolmson read out my address on the record, and it is now on a transcript. So I say that - - -
HIS HONOUR: Well, Mr Malcolmson obviously knows your address.
[GJ]: So does Mr Reardon, I submit, and I say that this - - -
HIS HONOUR: Well, in that case, why can’t you comply with the rules?
[GJ]:Because I don’t want other people getting my address. I have fears for my safety in relation to many of - - -
HIS HONOUR: Well, you can get an order that the document not be released to members of the public. But what’s the problem - - -
[GJ]:Well, if that’s the case, if I can get that – can your Honour give that order, please, for my safety? If he just wants the street address, I don’t have a problem if he wants to serve things on me directly. I would prefer he didn’t, because I have a post office box address. But this is just a technicality in that case. I don’t see why he would want a street address. But if he wants it on the documents, I’d ask you order for my safety that there’s an order that it not be released to the public.
From this, I note that:
· GJ asserted, and therefore knew, that Mr Reardon knew her street address;
· GJ wanted an order that her street address not be released to other people;
· While she did not wish to reveal it, GJ had no “problem” with Mr Reardon and his lawyers having her street address “if he wants to serve things on me directly”.
As a result, I made, inter alia, the following directions:
3.The Plaintiff must provide on the originating claim an address for service being the street address within the Australian Capital Territory subject to:
a.No person not being a party to the proceedings or that party’s legal representatives being given access to the address for service on the court file; and
b.The Plaintiff not being required to show the address for service on any subsequent documents unless she changes her address for service.
I did not understand that, in the circumstances, GJ objected to or felt aggrieved by such a direction.
When these proceedings came before the Court of Appeal on 18 March 2015 for case management, GJ was concerned about the difficulties she was having in getting the draft Appeal Book to AS or his lawyers for certification. See the Court of Appeal decision GJ v AS at [13]. Because of this, she sought that AS provide a street address for his address for service.
That was opposed. AS is not resident in Canberra and his lawyers are in Brisbane. As I noted in Court of Appeal decision GJ v AS at [13], a post office box is an acceptable address for service. In the circumstances, I did not direct that AS provide a street address as his address for service. At the time, GJ did not refer to the directions I had made in the Supreme Court matter nor allege any inconsistency in treatment I gave then to her and how I dealt with AS.
In any event, it seemed to me that there were relevant and determinative differences:
· AS did not live in Canberra, whereas GJ did.
· The need for privacy in the Supreme Court matter did not prevent GJ giving her street address in the Originating Process in the Supreme Court because the only people who would relevantly see it were people who already knew it.
· GJ expressly said she did not have a problem with limited publication of the street address.
· GJ could change her address for service in the Supreme Court matter to a post office box at any time and the directions did not prevent that.
· While it would have made it temporarily easier for GJ were AS to have a street address, the timing of the process to have the Appeal Books filed favoured the proposals adopted whereby GJ sent the draft to AS’s lawyers (the new address for service).
While it could be argued that AS contributed to the delay which required the action I took, I do not consider that a direction to AS to give a street address as his address for service was in the interests of ensuring that the appeal would be properly prepared.
In my view, there was no inconsistency in the two orders I made, even though they had different outcomes.
Accordingly, I consider that the directions I made in the two matters would not, when compared with each other, lead a reasonable, fair-minded and informed member of the community to apprehend that I would be biased against GJ.
This ground is not made out.
Conclusion
As none of the grounds would justify a reasonable, fair-minded and informed member of the community apprehending that I would be biased against GJ, I am firmly of the view that it could not be apprehended that I would not bring an independent and impartial mind to the issues to be decided on the appeal. I do not need to disqualify myself from hearing the appeal because of apprehended bias.
It was for these reasons that I dismissed the application.
| I certify that the preceding seventy-two [72] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 30 July 2015 |
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