Goldberg v Stocker
[2016] VSC 503
•30 August 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2014 06539
| DAVID GOLDBERG | Plaintiff |
| v | |
| DERYCK GEOFFREY STOCKER | First Defendant |
| and | |
| COUNTY COURT | Second Defendant |
JUDGE: | J FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 August 2016 |
DATE OF JUDGMENT: | 30 August 2016 |
CASE MAY BE CITED AS: | Goldberg v Stocker & Anor |
MEDIUM NEUTRAL CITATION: | [2016] VSC 503 |
JUDICIAL REVIEW – Appeal to County Court following conviction and sentence by a magistrate – Traffic offences - s 61(1)(c) Road Safety Act 1986 - Clause 248 Road Safety Vehicle Regulations 2009 - Self represented litigant not permitted to use the Bar Table – Inherent right of a judge to regulate the proceedings of his or her court - O’Toole v Scott (1965) AC 939 - Gamester Pty Ltd v Lockhart(1993) 112 ALR 623 - Procedural fairness - Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 - Obligations of a judge in a trial involving a self-represented litigant - Tomasevic v Travaglini & anor [2007] VSC 337 - Appearance of impartiality - Reg v Leicester JJ ex p Barrow (1991) 2 QB 260 - Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337- Isbester v Knox City Council (2015) ALJR 609 – Fair-minded lay observer - British American Tobacco v Laurie (2011) 242 CLR 283 – Extent of knowledge of fair-minded lay observer - Johnson v Johnson (2000) 201 CLR 488.
APPEARANCES: | Counsel | Solicitors |
| For Mr Goldberg | In person | |
| For Mr Stocker | Mr P Pickering | Vallie Anscombe, Acting Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
This application for judicial review raises two points:
(a) is a self-represented litigant entitled to conduct his or her trial from the Bar table; and
(b) is a self-represented litigant denied procedural fairness if he or she is deprived of that opportunity?
Mr Goldberg was dissatisfied with the decision of a magistrate in relation to two minor traffic offences (one which turned out to be unknown to law). As of statutory right, he appealed to the County Court on sentence alone.
On the day of the hearing of the appeal, he sought to amend his application to appeal both the conviction and sentence. This was opposed by counsel for Mr Stocker, the informant, and respondent to the appeal.
The County Court judge permitted counsel (who was robed) for Mr Stocker to conduct his case from the Bar table. His Honour, however, would not permit Mr Goldberg to use the Bar table and he conducted his case from the body of the Court.
On this originating motion, Mr Goldberg sought to challenge the refusal of the judge to grant his application for leave to appeal against conviction. An associate justice heard an application by Mr Stocker for summary dismissal of the originating motion and concluded that only one of the ten grounds could be maintained at trial:
The Honourable Judge Tinney prejudiced the Appellant’s legitimate right and expectations by his unequal treatment. His Honour Judge Tinney bluntly discriminated against the Appellant by refusing to allow him to speak to microphone or to sit before the bar table in order to take notes during the hearing. Such act of discrimination has forced the Appellant to use a court floor as a table which is unacceptable disability and discrimination. Furthermore His Honour during the hearing was whispering and the Appellant could not hear what his Honour was saying. His Honour had made an angry response that the Appellant will not use such words as ‘insist’ or ‘demand’ in his courtroom.
At the commencement of this hearing before me, Mr Goldberg sought that I recuse myself as I had previously determined an unsuccessful application brought by him in 2009 in relation to review of a decision of a County Court judge.[1] I refused the application.
[1]Goldberg v Laughlin [2009] VSC 231. See Re J.R.L; Ex parte C.J.L (1986) 161 CLR 342, 352.
For the reasons which follow, I am satisfied that Mr Goldberg was not denied procedural fairness by the judge’s refusal to permit him to conduct his appeal from the Bar table.
The Magistrates’ Court hearing
Mr Goldberg was charged with three traffic offences[2] arising from his use of a motor vehicle in Bentleigh on 27 May 2013, two of which were:[3]
(a) failing to give his name and address pursuant to s 61(1)(c) of the Road Safety Act 1986 (Road Safety Act) in respect of an accident occasioning property damage (the first charge); and
(b) breach of clause 248 of the Road Safety Vehicle Regulations 2009 (Road Safety Regulations) that, as the driver of a vehicle carrying a load, he failed to appropriately secure and fasten that load (the third charge).
[2]Exhibit OPP 9.
[3]The second charge was, in effect, a duplicate of the third charge.
The charges were heard on 23 September 2014 at the Moorabbin Magistrates’ Court. Mr Goldberg pleaded not guilty. The Magistrate convicted him on the two charges,[4] suspended him from driving for a period of three months and imposed a fine of $1,500.
[4]Exhibit OPP 10.
Mr Goldberg filed a notice of appeal to the County Court at the Magistrates’ Court on the same day. The only ground specified in the notice of appeal was ‘that the punishment is excessive’.[5]
The County Court hearing
[5]Exhibit OPP 11.
When the appeal came before the judge on 5 December 2014, Mr Goldberg sought to appeal against his convictions on both counts in addition to the sentence appeal. However, he required leave to appeal against the conviction as he was out of time.
Having heard submissions from Mr Goldberg and counsel for Mr Stocker, his Honour refused leave to amend the notice on the basis of:
(a) the prejudice to the prosecution by reason of the absence of the primary witness; and
(b) Mr Goldberg’s knowledge of appellate processes, having litigated on numerous prior occasions.
The DVD of the appeal hearing was shown in court on this application. I adopt the summary of Lansdowne AsJ of the contents of the DVD:
The DVD shows that Mr Goldberg was not seated at the Bar table for any of the hearing. He had seated himself prior to Judge Tinney coming into the court room in the body of the court room, in the first or second row of seats behind the seats at the Bar table. Robed counsel for Mr Stocker was seated at the Bar table.
When Mr Goldberg was first addressed by Judge Tinney Mr Goldberg asked if he could come to ‘the bench’ and his Honour told him to address him ‘from there’.[6] Mr Goldberg did not ask Judge Tinney again in the course of the hearing if he could move to the Bar table, although he did use the Bar table to rest some papers on when directly addressing his Honour. At those times Mr Goldberg stood behind the seat pushed into the Bar table. He did not seek permission to stand in that location, and his Honour did not invite him to do so but did not express any objection.
It is apparent from the DVD that Mr Goldberg had a number of papers that he had on seats either side of his seat in the body of the court room. On one occasion in the course of discussions about sentence Mr Goldberg said that he could not hear what Judge Tinney had said and came to stand behind the Bar table in the location I have described already. He then continued to address Judge Tinney from that location, but had to return to his seat in the body of the court room to get some papers. After Mr Goldberg completed his submissions on sentence he sat down again in the seat he had occupied in the body of the court. He then stayed there for the duration of the hearing.
[6]T 6.13-14.
To this I should add the extracts from the transcript of a number of exchanges between the judge and Mr Goldberg. The first relates to whether Mr Goldberg could use the Bar table:
HIS HONOUR: Yes okay. Well Mr Goldberg, this is your notice of appeal?
MR GOLDBERG: Can I just come to the Bench please?
HIS HONOUR: Just address me from there please. This is your notice of appeal, your notice of appeal specifies that it is an appeal against sentence.
MR GOLDBERG: Well if I may explain to you, the notice of appeal was made immediately or during the court hearing. I stormed out of the court and the person, I said I want to appeal against a conviction and a sentence and the person who referred immediately during the – well when I stormed out of the Magistrates’ Court - - - [7]
[7]T 6, 11-22.
Then there was the following, which was the only occasion upon which I can detect any real disharmony between the judge and Mr Goldberg:
HIS HONOUR: Just don’t stand there and tell me what you’re insisting.
MR GOLBERG: Well I’m only asking you.
HIS HONOUR: Are you listening to me?
MR GOLDBERG: Yes I am.
HIS HONOUR: Yes. You don’t come and start insisting.
MR GOLDBERG: Well, okay I’ll use different words.
HIS HONOUR: You use different words, you use - - -
MR GOLDBERG: I’m extremely unhappy.
HIS HONOUR: I can gauge that. You use different language when you’re addressing the court please.
MR GOLDBERG: I will, I’m sorry, I will. So what I’m trying to say to you is that I was not involved in the accident. I want to have the matter heard according to the law,…[8]
[8]T 8, 18-31.
His Honour then heard submissions as to whether to permit the amendment to the notice of appeal, and concluded:
HIS HONOUR: He was behaving no doubt in a manner that I’ve seen a glimpse of here today and my time on the Bench and storming and ranting at the Magistrates’ Court. I’m not satisfied that his failure to file the appropriate notice is due to exceptional circumstances. He signed that notice. The notice is under his hand, it’s an appeal against sentence.
Even if I’m entirely wrong in relation to that, I would then need to be satisfied though, if I was satisfied there were exceptional circumstances, which I’m not…
However, in relation to the third charge, his Honour said:
HIS HONOUR: In relation to charge three, grant leave in that setting, not because of any of the matters raised by Mr Goldberg, but because of the very fair stance taken by Mr Buckland who tells me that that charge cannot be sustained.[9]
[9]T 28, 12-31-T 29, 1-2.
And subsequently:
HIS HONOUR: Yes, all right. In the circumstances, Mr Goldberg I’m not satisfied of exceptional circumstances. I’m not satisfied of the absence of material prejudice, so I’m not granting leave for your appeal to proceed as an appeal against conviction. Do you understand?
MR GOLBERG: Yes I understand.
HIS HONOUR: All right so what that leaves me with then is an appeal against the sentence and I’ve already heard the summary in relation to this matter now, so, Mr Buckland, you are applying then to withdraw charge – have a seat Mr Goldberg. You’re applying to withdraw charge 3?
MR BUCKLAND: Yes, that’s correct, Your Honour.
HIS HONOUR: It’s not a provision setting up an offence at all?
MR BUCKLAND: Correct.
HIS HONOUR: I will mark charge 3 as withdrawn or struck out, it doesn’t really matter which it is, what it will be marked as withdrawn.[10]
[10]T 30, 8-22.
His Honour then heard the parties’ submissions as to penalty and comprehensively summed up:
HIS HONOUR: This is Mr Goldberg’s appeal against sentence as it now is. I’ve previously refused his application to treat the appeal as one against conviction and I wasn’t satisfied that there were exceptional circumstances. Nothing I’ve heard since changes my view on that perspective, if I might say, nor was I satisfied that there was any – I am satisfied that there is material prejudice that’s being cause to the respondent.
In any event, I’ve made that determination so as a result, this is an appeal against sentence and it pertains now only in relation to one charge. I’ve set aside the Magistrates’ Court order, as I’ve required to do, and I then withdraw or strike out because it’s withdrawn, charge 3 on the appeal notice because the prosecutor has advised that charge as it (indistinct) to specify does not set up a penalty provision.[11]
And concluded:
So Mr Goldberg stand up please. In dealing with your appeal I have struck out the second, charge three on the appeal notice, so that doesn’t trouble you at all. The prosecutor conceded that that’s what I should do. Charge 1, the failure to give name and address, I have convicted and fined you $400. I am making no order against your licence. So the magistrate suspended you from driving for three months. I’ve got a bit of a doubt in my mind as to the actual history that she might have been acting on, the Roads Corporation extract and how that was interpreted.
I’ve got no doubt that you were storming around and it probably doesn’t produce the result that you might want to be produced. In any event, don’t worry too much about that. I’m satisfied that in exercising my discretion it’s appropriate that I not put you off the roads, so I’m not.[12]
The end result was a victory, of sorts, for Mr Goldberg. His driving licence was not affected and the fine was reduced to $400.
[11]T 47, 1-16.
[12]T 50, 11-27.
Having watched the whole of the video recording of the appeal in court (with the benefit of both parties making submissions), I am satisfied that:
(a) Mr Goldberg sat in the front row of the public area of the Court.
(b) Mr Goldberg was able to sit and stand as was appropriate. At times, he used the Bar table upon which to place papers.
(c) Mr Goldberg was able to address the Court comprehensively without any inconvenience and to put his arguments as to why he should be granted leave to appeal against conviction.
(d) There was no interference in terms of communication between the judge and Mr Goldberg. Specifically, he did not appear to be inconvenienced by conducting his case from the body of the Court.
(e) Mr Goldberg, although slightly agitated at times, behaved appropriately.
(f) The judge was courteous to Mr Goldberg and only confined him by asking him to address relevant matters.
(g) Mr Goldberg was not inconvenienced in his presentation of his case. His papers were beside him.
Now, on the other hand:
(a) Mr Goldberg sat in the body of the Court whilst robed counsel for Mr Stocker sat at the Bar table closer to the judge.
(b) Counsel addressed the judge as to the circumstances of both the application for leave to appeal and the substantive charges from the Bar table.
Analysis
Although the two questions I have identified at [1] seem relatively simple, they raise some fundamental interconnected principles:
(a) whether a self-represented litigant has a right to conduct a trial from the Bar table;
(b) the duty of a trial judge to an unrepresented litigant;
(c) procedural fairness in the conduct of the appeal; and
(d) the appearance of impartiality.
Is a self-represented litigant entitled to conduct his or her trial from the Bar table?
The short answer is no. It is up to the presiding judge as to what the procedure is to be adopted in his or her court.
A judge has discretionary power to control the processes of the court. As the Privy Council observed in O’Toole v Scott,[13] part of that discretionary power is ‘the inherent right of a judge or magistrate to regulate the proceedings in his court’[14] which is exercised ‘in order to secure or promote convenience and expedition and efficiency in the administration of justice’.[15]
[13][1965] AC 939, 959.
[14]Ibid.
[15]Ibid. See also Gamester Pty Ltd v Lockhart(1993) 112 ALR 623.
Traditionally, the Bar table is used by advocates appearing in the case before the court. Every now and then a judge, as part of the control of the court’s processes, may make orders as to where counsel are to be positioned at the Bar table (usually when counsel cannot agree upon the starting order). But, as far as I am aware, there is nothing in terms of custom or precedent that precludes persons other than advocates from using the Bar table.
Noting that it is for a court to determine how to conduct a hearing, experience with self-represented litigants having access to the Bar table varies. For instance, in ‘A Guide for Self-Represented Litigants and the Civil Jurisdiction of the County Court’, the following is said as to court process:
· You should sit in the body of the court in front of the row nearest to the Bar table.
· The judge will ask your name and confirm you are representing yourself. You may be allowed to sit at the Bar table with the other representatives, however you should not sit there with the other representatives until the judge has said that you may.
My experience (both as counsel and judge) in civil and criminal jurisdictions in this State has been that judges invariably permit self-represented litigants access to the Bar table. On the other hand, I was told by Mr Stocker’s counsel (who appears regularly in the Magistrates’ Court and in County Court appeals) that whilst that is the predominant approach, there are a number of judicial officers who do not permit self-represented litigants access to the Bar table.
Accepting that there is no right of a self-represented litigant to have access to the Bar table and that permission must be given by the judicial officer, it strikes me as being entirely appropriate – both in terms of perception and to facilitate the practical running of a case – that a self-represented litigant have access to the Bar table. But that, of course, is a personal view.
All that said, the question which must now be resolved is whether depriving a self-represented litigant of the ability to access the Bar table is inimical to the administration of justice.
Was there a denial of procedural fairness by preventing Mr Goldberg from access to the Bar table?
It is trite, but nevertheless worth repeating in the context of this application, that the cornerstone of the administration of justice is a fair trial. Principles of procedural fairness, or natural justice, have been developed over centuries with the specific purpose of facilitating this fundamental proposition. Those principles, as the highest courts in Australia and England have stated, are protean[16] in nature, varying from case to case. As Gleeson CJ put it in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam:[17]
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.[18]
[16]RCB v The Hon Justice Forrest (2012) 247 CLR 304, [42] (French CJ, Hayne, Crennan, Kiefel and Bell JJ). See also Stollery v Greyhound Racing Control Board (1972) 128 CLR 509, 518 – 519 (Barwick CJ).
[17](2003) 214 CLR 1.
[18]Ibid [37].
In the context of this case, the question is whether Mr Goldberg was afforded a reasonable opportunity to present his case and to meet the case of Mr Stocker.[19]
[19]Ucar v Nylex Industrial Products Pty Ltd (2007) 17 VR 492, 515 (Redlich JA) (‘Ucar’); Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208.
In Tomasevic,[20] Bell J after a thorough analysis of the authorities and relevant statutory provisions set out the obligations of a judge in a trial involving a self-represented litigant:
On the basis of this analysis, I think I can summarise the law as it currently stands.
Every judge in every trial, both criminal and civil, has an overriding duty to ensure the trial is fair. A fair trial is the only trial a judge can judicially conduct. The duty is inherent in the rule of law and the judicial process. Equality before the law and equal access to justice are fundamental human rights specified in the ICCPR. The proper performance of the duty to ensure a fair trial would also ensure those rights are promoted and respected.
Most self-represented persons lack two qualities that competent lawyers possess - legal skill and ability, and objectivity. Self-represented litigants therefore usually stand in a position of grave disadvantage in legal proceedings of all kinds. Consequently, a judge has a duty to ensure a fair trial by giving self-represented litigants due assistance. Doing so helps to ensure the litigant is treated equally before the law and has equal access to justice.
The matters regarding which the judge must assist a self-represented litigant are not limited, for the judge must give such assistance as is necessary to ensure a fair trial. The proper scope of the assistance depends on the particular litigant and the nature of the case. The touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed. The Family Court of Australia has enunciated useful guidelines on the performance of the duty.
The judge cannot become the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. Further, the judge must maintain the reality and appearance of judicial neutrality at all times and to all parties, represented and self-represented. The assistance must be proportionate in the circumstances - it must ensure a fair trial, not afford an advantage to the self-represented litigant.[21]
[20]Tomasevic v Travaglini (2007) 17 VR 100 (‘Tomasevic’).
[21]Ibid [138]-[142].
In Mr Goldberg’s written submissions, he made the following assertions:
His Honour Judge M Tinney denied the appellant procedural fairness by not allowing the access to the Bar table or to the microphone thereby by refusing the appellant to speak to the microphone or to sit before the Bar table to take notes during the hearing. His Honour continued to whisper to the microphone so that the appellant could not hear him properly and thereby could not properly take part in the hearing. The appellant’s attempts and requests for his Honour to speak up so he could hear what his Honour was saying were made with an angry response from his Honour.
It is a common law duty of the court to act fairly, in the sense of according procedural fairness in the making of an order, which affects rights, interests and legitimate expectations of the appellant. It is quite clear that this is isolated and a blunt act of discrimination by his Honour Judge Tinney against the appellant. The appellant’s rights to natural justice were destroyed, defeated and prejudiced by his order and conduct.
The appellant has appeared in the years from 2000-2015 in different courts in the state of Victoria such as County Court of Melbourne, Supreme Court of Melbourne, Court of Appeal Supreme Court of Melbourne, Federal Court of Australia sitting in Melbourne, High Court of Australia sitting in Melbourne in front of different judges and never before experienced such failure of procedural fairness and discrimination committed by a judge as well as personal humiliation in the court room.[22]
[22]Paragraphs [11]-[13] of the submissions of Mr Goldberg dated 29 March 2016.
To these complaints, Mr Goldberg added in oral submission that the judge’s refusal to permit him to sit at the Bar table confused and unsettled him to the point that he was unable to conduct his appeal properly.
The video of the appeal does not substantiate any of Mr Goldberg’s complaints. I have set out my impression of the video at paragraph [15]. On only one occasion was there any difficulty in communication, and that was solved by repetition. Indeed, the clarity of the communication between the judge and Mr Goldberg was considerably better than that which regularly occurs in courts located within the Supreme Court building.
In my view, Mr Goldberg, an experienced self-represented litigant, did not appear either deflected or unsettled by his inability to sit at the Bar table. As I have noted, he used the Bar table from time to time upon which to place papers. He was able to put submissions and to respond to any issues raised by the judge. He was not shut out from raising points and the appeal was conducted fairly and consistently with the principles enunciated in Ucar and Tomasevic.
I should add that I do not accept Mr Goldberg’s contention that he endeavoured to raise with the judge the fact that he wished to give evidence from the witness box. It does not appear on the video or in the transcript. In any event, all the issues that he wished to ventilate were communicated by him to the judge from the body of the Court and dealt with by the judge.
So in summary, the judge provided the necessary assistance to Mr Goldberg in terms of the presentation of his case. I am not satisfied that there was any obstacle to Mr Goldberg by way of his position in the court which affected his ability to make his case to the judge.
Had I concluded that Mr Goldberg had been denied procedural fairness by reason of his inability to utilise the Bar table, I would still need to be satisfied that his ability to access the Bar table may have made a difference to the decision reached by the judge.[23] It is difficult to conceive that any different outcome could have resulted from Mr Goldberg being afforded the opportunity to sit at the Bar table rather than a metre away from it.
[23]See Stead v State Government Insurance Commission (1986) 161 CLR 141, 145; Re Minister for Immigration and Multicultural Affairs ex parte Application S154/2012 (2003) 201 ALR 437, [28] (Gummow and Heydon JJ); Ucar (2007) 17 VR 492, [59]-[84] (Redlich JA).
The appearance of impartiality
The decision of the English Court of Appeal in Reg v Leicester JJ ex p Barrow[24] concerned a self-represented litigant’s access to what is known as a McKenzie friend. In that case, Lord Donaldson said as follows:
There are many basic rules covering the administration of justice by the courts, but they can be summed up by saying that it must be administered fairly and, unless the interests of justice otherwise require, it must be administered openly and its administration must not only be fair but seen to be fair.[25]
[24][1991] 2 QB 260.
[25]Ibid 284 (emphasis added).
In Australia, the question of the appearance of fairness was addressed by the High Court in Ebner v The Official Trustee in Bankruptcy:[26]
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), 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. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle…
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. 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.[27]
[26](2000) 205 CLR 337.
[27]Ibid [6],[8] (Gleeson CJ, McHugh, Gummow and Hayne JJ) (emphasis added).
Then, more recently in Isbester v Knox City Council,[28] the majority of the High Court said:
The question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely a factual one, albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made.[29]
and Gageler J said:
Whether or not it might be useful to state the test in that alternative form, the test for the appearance of disqualifying bias in an administrative context is to be understood to mirror the test for apprehended bias in the curial context in two important respects. The first is that it is an “objective test of possibility, as distinct from probability“. The second is that its application necessarily involves three analytical steps. 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.[30]
[28](2015) 255 CLR 135 (‘Isbester’).
[29]Ibid [20] (Kiefel, Bell, Keane and Nettle JJ).
[30]Ibid [59].
So, adopting the steps suggested by Gageler J in Isbester:
(a) The relevant factor is that of requiring Mr Goldberg to conduct his appeal away from the Bar table;
(b) The proposition is that Mr Goldberg’s positioning away from the Bar table might cause a fair minded observer to think the case was not fairly decided on its merits;
(c) The critical issue is determining whether requiring Mr Goldberg to present his case from the body of the Court might lead to a conclusion that the judge did not bring an impartial mind to the exercise.
Although, as I noted at the start, the County Court civil guidelines entertain the possibility of a judge refusing a self-represented litigant access to the Bar table, this is not the answer – it is a question of perception.
In British American Tobacco Australia Services Ltd v Laurie,[31] French CJ said:
In judging whether the appearance of impartiality has been lost difficulties of principle and application can arise. Courts must make their judgments upon criteria referable to a legally constructed, fair-minded lay observer. That means, in effect, that their judgments are made on a subset of the available information….
In determining whether an apprehension of bias has a reasonable basis, the courts are asked to see themselves as others, not judges or lawyers, would see them. As Laws LJ put it in Sengupta v Holmes:"it is not enough to show that those in the know would not apprehend any bias."[32]
[31](2011) 242 CLR 283 (‘Laurie’).
[32]Ibid [33].
Relevantly, the extent of the knowledge attributed to the fair-minded lay observer for the purpose of determining whether that observer would reasonably apprehend bias was discussed by Kirby J in Johnson v Johnson:[33]
[33](2000) 201 CLR 488.
Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances…
…A reasonable member of the public is neither complacent nor unduly sensitive or suspicious. [34]
In Laurie,[35] French CJ adopted Kirby J’s observations noting that ‘a fair-minded lay observer would, before forming a view about the existence of a reasonable apprehension of bias, take the trouble to inform himself or herself to the extent necessary to make a fair judgment’.[36]
[34]Ibid [53].
[35](2011) 242 CLR 283.
[36]Ibid [47].
In my view, at the hearing of this appeal, the fair-minded lay observer armed with the appropriate knowledge might have observed that a police officer (the representative of the law enforcement arm of the state) was represented by counsel who was able to utilise the Bar table in contradistinction to the self-represented litigant who was prevented from using the Bar table. This may have created a perception of inequality and imbalance at first glance. But that is as far as it goes.
Having watched the video closely and observed the way in which the judge conducted the appeal, I am not at all persuaded that the fair-minded lay observer who observed the entire proceeding, might have concluded that there might be any impartiality on the part of the judge.
The observer would not just take into account where Mr Goldberg was positioned in the court: more importantly, he or she would have noted the unstifled opportunity afforded to Mr Goldberg to put his case to the judge and to respond to the case of Mr Stocker.
It is not necessary for me to repeat the details of how the appeal was conducted, (see [11] to [16] above) save to acknowledge again that the judge behaved fairly and impartially and that Mr Goldberg was given a fair hearing of his appeal, albeit that it was conducted from the body of the Court.
To put it another way, notwithstanding Mr Goldberg’s position in Court, there was nothing in the conduct of the hearing that departed from the fundamental principle that the judge was independent and impartial – and appeared to be so.
Conclusion
Whilst it is regrettable that Mr Goldberg was not allowed access to the Bar table, I am not persuaded that there was any denial of procedural fairness or apprehended bias on the part of the judge. The order to review should be dismissed.
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