Heedes v Legal Practice Board
[2005] WASCA 166
•31 AUGUST 2005
HEEDES -v- LEGAL PRACTICE BOARD [2005] WASCA 166
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 166 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:185/2004 | 25 JULY 2005 | |
| Coram: | OWEN JA WHEELER JA ROBERTS-SMITH JA | 31/08/05 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ARTHUR HEEDES LEGAL PRACTICE BOARD |
Catchwords: | Appeal Contempt Noncertified person engaging in legal practice Bias Whether reasonable apprehension of bias Comments made by different judicial officer at interlocutory hearing Integrity of process |
Legislation: | Nil |
Case References: | Kola v District Court of South Australia [2001] SASC 268 Kwan v Kang & 2 Ors [2003] NSWCA 336 Legal Practice Board v Heedes [2004] WASC 260 Livesy v New South Wales Bar Association (1983) 151 CLR 288 McCreed v The Queen (2003) 27 WAR 554 R v Eades (No 2) (1991) 6 WAR 532 R v Lovelady; Ex parte Attorney-General [1982] WAR 65 R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 R v Watson; Ex parte Armstrong (1976) 136 CLR 248 Re JRL; Ex parte CJL (1986) 161 CLR 342 Ruffles v Chilman (1997) 17 WAR 1 S v Legal Practice Board of Western Australia (2004) 29 WAR 173 Southern Equities Corporation Ltd (In liq) v Bond & Ors (2000) 78 SASR 339 Webb v The Queen (1993) 181 CLR 41 Witham v Holloway (1995) 183 CLR 525 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 Johnson v Johnson (2000) 201 CLR 488 R v S (RD) [1997] 3 SCR 484 Re Polites; Ex parte Hoyts Corporation Pty Ltd (No 2) (1991) 173 CLR 78 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HEEDES -v- LEGAL PRACTICE BOARD [2005] WASCA 166 CORAM : OWEN JA
- WHEELER JA
ROBERTS-SMITH JA
- Appellant
AND
LEGAL PRACTICE BOARD
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MCKECHNIE J
Citation : LEGAL PRACTICE BOARD -v- HEEDES [2004] WASC 260
File No : CIV 2062 of 2004
(Page 2)
Catchwords:
Appeal - Contempt - Noncertified person engaging in legal practice - Bias - Whether reasonable apprehension of bias - Comments made by different judicial officer at interlocutory hearing - Integrity of process
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr N J Mullany
Respondent : Mr B J H Goetze
Solicitors:
Appellant : In person
Respondent : Minter Ellison
Case(s) referred to in judgment(s):
Kola v District Court of South Australia [2001] SASC 268
Kwan v Kang & 2 Ors [2003] NSWCA 336
Legal Practice Board v Heedes [2004] WASC 260
Livesy v New South Wales Bar Association (1983) 151 CLR 288
McCreed v The Queen (2003) 27 WAR 554
R v Eades (No 2) (1991) 6 WAR 532
R v Lovelady; Ex parte Attorney-General [1982] WAR 65
R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256
R v Watson; Ex parte Armstrong (1976) 136 CLR 248
Re JRL; Ex parte CJL (1986) 161 CLR 342
Ruffles v Chilman (1997) 17 WAR 1
(Page 3)
S v Legal Practice Board of Western Australia (2004) 29 WAR 173
Southern Equities Corporation Ltd (In liq) v Bond & Ors (2000) 78 SASR 339
Webb v The Queen (1993) 181 CLR 41
Witham v Holloway (1995) 183 CLR 525
Case(s) also cited:
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438
Johnson v Johnson (2000) 201 CLR 488
R v S (RD) [1997] 3 SCR 484
Re Polites; Ex parte Hoyts Corporation Pty Ltd (No 2) (1991) 173 CLR 78
(Page 4)
1 OWEN JA: I have read the reasons of the Hon Justice RobertsSmith. I agree with his Honour's reasons and with the conclusion that the appeal should be dismissed. I have nothing further to add.
2 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Roberts-Smith JA. I agree with those reasons and have nothing to add.
3 ROBERTS-SMITH JA: This appeal is principally constructed on a somewhat unusual foundation. That is, that the appellant was denied procedural fairness in that the remarks of one judicial officer made in the absence of the appellant, in the course of a directions or programming hearing, give rise to a perception of bias on the part of a different judicial officer, who later gave judgment following the hearing of the substantive application that the appellant be dealt with for contempt.
4 It came about this way. On 18 August 2004, the respondent ("the Board") filed an originating motion alleging contempt of court. The Board sought orders that the appellant be punished for contempt of court in that, not being a duly certificated practitioner, between about June and August 2004 at Perth, he engaged in legal practice by performing work in connection with the administration of law, namely obtaining and acting on instructions from Diba Durmanich on behalf of her infant son to prepare, or cause to be prepared, certain court documents and further, filing, or causing those documents to be filed in the District Court. Those documents were a conditional appearance to an originating summons issued out of the District Court in proceedings between the Insurance Commission of Western Australia as plaintiff and the son as defendant and an affidavit sworn by the appellant. It was also alleged that he engaged in legal practice in that in the course of carrying out the instructions of Ms Durmanich, he drew or prepared (or caused to be drawn or prepared) writing relating to, dealing with, or affecting proceedings at law, namely the conditional appearance and the affidavit.
5 Although the body of the originating motion did not say so, the contempt was charged pursuant to s 128 and s 250 of the Legal Practice Act 2003 (WA) ("the Act").
6 The originating motion was listed for directions before Master Newnes on 25 August 2004. On that date, Mr M Cornes appeared for the Board, but there was no appearance by the appellant because the Board
(Page 5)
- had not been able to effect personal service upon him. Mr Cornes sought a further 21 days to effect service and that application was granted.
7 When the matter next came before the Court on 15 September 2004, it was before Master Sanderson. On that occasion, Mr Cornes again appeared for the Board. The appellant appeared in person. Although personal service had still not been effected on the appellant, but given his presence, counsel for the Board submitted the matter should be programmed for a hearing. The appellant said that he would attend at the office of the Board's solicitor and collect the documents but that in the meantime, being aware of the matter, he had filed affidavits and submissions with the Court on 13 September. The appellant said that he appreciated the Master had not had an opportunity to read his affidavits but he was submitting that the proceedings were a waste of the Court's time. The Master interpolated that he thought the better course was to adjourn the matter to a date when he would have more time and that in any event, counsel for the Board was seeking 14 days to file any affidavit in reply, which he was entitled to do. The appellant again indicated that he considered he had a complete defence to the application and that in any event, for other legal reasons, it ought not to proceed. The Master again said that was something he was not going to decide at that stage. There were some further exchanges between the appellant and the Master after which his Honour ordered that any affidavits in reply by the Board be filed within 14 days together with submissions and the matter otherwise be returned to him in Judge's chambers on 30 September.
8 There is no complaint about any of the proceedings thus far, nor about the further directions hearing before Master Sanderson on 30 September, at which he ordered the appellant have 21 days to file further responsive material.
9 It is the next directions hearing about which complaint is made. That was on 28 October 2004. Mr Cornes again appeared for the Board. The appellant did not appear. Given the nature of the complaint, it is well to set out the brief transcript in full. I have italicised those parts which are said to give rise to the appellant's concerns:
"THE MASTER: Mr Cornes?
CORNES, MR: Yes, master. I appear again for the applicant.
THE MASTER: Yes.
(Page 6)
- CORNES, MR: I have given Mr Heedes some time in case he was running late but he still doesn't appear - - -
THE MASTER: He hasn't filed anything further, has he?
CORNES, MR: I have a further affidavit dated 21 October which states on its face that it was filed on 22 October.
THE MASTER: Perhaps I should have a look at - if he is not here, is there any point in me reading it?
CORNES, MR: No. It says an awful lot but it won't - - -
THE MASTER: It says an awful lot and it says nothing at the same time presumably. 'I'm a self-employed advocate, intercessor, negotiator, investigator.' Intercessor?
CORNES, MR: Yes.
THE MASTER: What do you actually want to do with this gentleman? Assuming he got the orders that you want, do you want him committed to prison or do you want him fined or what do you want done?
CORNES, MR: I'm instructed today to seek a hearing date unless Mr Heedes decided to plead guilty to the charges against him.
THE MASTER: Look, that's what I will do. I have discussed this with McKechnie J. He will hear it.
CORNES, MR: I see, yes.
THE MASTER: I'm not sure whether I have got power to commit this chap to prison or not but whether I have or I haven't, I would prefer McKechnie J - he is used to doing that sort of thing. So if you can provide unavailable dates for the month of November by close of business today?
CORNES, MR: Yes.
THE MASTER: Make it November and December. I'm sure McKechnie J will squeeze you in because it's not going to take very long I wouldn't think.
CORNES, MR: Yes.
(Page 7)
- THE MASTER: Then appropriate orders can be made. All right.
CORNES, MR: Our fax should be addressed to your associate?
THE MASTER: Yes, if you would, thanks. Then it will come to me. I will discuss it again with McKechnie J and we can fix a hearing date. What do you think? How long would you need to allow for? A couple of hours would be enough?
CORNES, MR: Judging by the affidavit material the respondent has filed to date, I imagine he will spend some time on his feet.
THE MASTER: Yes.
CORNES, MR: His style isn't laconic.
THE MASTER: No. I will mention that to McKechnie J but I would guess that two hours would be enough. That would be my guess but perhaps we will make it a bit longer.
CORNES, MR: Yes. Sir, in terms of orders that should be made today, should I simply ask for it to be adjourned to a date to be fixed and costs reserved?
THE MASTER: Yes, I will simply make an order that it be adjourned to a special appointment on a date to be fixed; costs reserved.
CORNES, MR: Thank you, sir.
THE MASTER: All right. Thanks, Mr Cornes.
CORNES, MR: Thank you, sir."
10 The Board's motion was heard before McKechnie J on 26 November 2004. At the conclusion of the hearing his Honour delivered reasons for judgment ex tempore (Legal Practice Board v Heedes [2004] WASC 260). The appellant had admitted that he was not a certificated legal practitioner. His Honour found beyond reasonable doubt that the appellant had engaged in legal practice within the meaning of s 123 of theAct. He found further that the appellant had engaged in the practice of the law as alleged by preparing and filing the subject documents and that at
(Page 8)
- the time the appellant engaged in the administration of law and drew the documents, he had an expectation of payment. His Honour said it followed that the appellant had been unable to persuade him affirmatively that he had a defence under s 124(3) of the Act and accordingly he found the contempt had been proved.
11 The appellant remained unaware of what had transpired before the Master on 28 October until after the judgment, when he attended the Court Registry and collected and paid for the transcript of the proceedings, probably on or about 30 November 2004.
12 By his notice of motion by way of appeal filed 16 December 2004, the appellant set out five grounds of appeal. By order dated 13 July 2005 the Registrar gave the appellant leave to file amended grounds of appeal. He subsequently provided a document setting out one ground.
13 The appellant's amended ground of appeal is:
"1. The judicial process and the decision of the Honourable Justice McKechnie are tainted by circumstances which prevailed prior to and during the hearing of the Originating Motion before his Honour on 26 November 2004 in that those circumstances give rise to a reasonable apprehension of bias with the consequence that the Appellant was denied procedural fairness.
Particulars of Circumstances
- (a) The comments made during the interlocutory hearing on 28 October 2004 by Master Sanderson to the solicitor for the Respondent in the absence of the unrepresented Appellant;
(b) The failure of the solicitors for the Respondent to file with the Court the three affidavits upon which the Respondent relied and the provision of those documents by its solicitors to Master Sanderson under cover of letter immediately prior to the interlocutory hearing before him on 30 September 2004;
(c) The failure of the Honourable Justice McKechnie to admit into evidence and to take account of the affidavit of the Appellant sworn on 19 November
(Page 9)
- 2004 and filed in defence of the Originating Motion which affidavit had not been ruled to be inadmissible."
14 Counsel for the appellant acknowledges the circumstances were unusual and that the decision of the trial Judge was said to be tainted by what occurred prior to the hearing before him, and as a result of comments made by someone other than him, that is, other than the decision-maker.
15 There was no dispute here as to the principles to be applied in relation to a claim of perceived or apprehended bias in judicial proceedings. It is whether the circumstances complained of would give a fair-minded and informed observer a reasonable apprehension of a lack of impartiality on the part of the Judge; that is to say, whether a fair-minded person might reasonably apprehend or suspect that the Judge has prejudged or might prejudge the case (Webb v The Queen (1993) 181 CLR 41 per Mason CJ and McHugh J at 47).
16 The axiom that justice must not only be done, but should manifestly and undoubtedly be seen to be done, is one of the most pervasive axioms of the administration of justice (R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, 259 per Hewitt LCJ; R v Watson; Ex parte Armstrong (1976) 136 CLR 248, 263; Livesy v New South Wales Bar Association (1983) 151 CLR 288, 293 - 294).
17 As Steytler J (as he then was) pointed out in McCreed v The Queen (2003) 27 WAR 554 at [7], justice can only be done if there is in fact no bias and can only be seen to be done if there is no appearance of bias.
18 At [9] his Honour went on to say this about the "fair-minded lay observer":
"9 What kind of person this fair-minded lay observer is, and how much he or she knows, has been the subject of some discussion in the cases. In Johnson (at 507 - 508), Kirby J referred to the many ways in which "the hypothesised bystander" is described. He said:
'Phrases that have been used include the "lay observer" (Vakauta v Kelly (1989) 167 CLR 568 at 573, 574)), "fair-minded observer" (Livesey (1983) 151 CLR 288 at 300; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87), "fair-minded, informed lay observer"
(Page 10)
- (Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 92), "fair-minded people" (R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263), "reasonable or fair-minded observer" (Vakauta v Kelly (1989) 167 CLR 568 at 585), "reasonable and intelligent man" (Watson (1976) 136 CLR 248 at 267), the "parties or the public'" (Re Media, Entertainment & Arts Alliance and Theatre Managers' Association; Ex parte Hoyts Corporation Pty Ltd (1994) 68 ALJR 179 at 182), a "reasonable person" (Vakauta v Kelly (1989) 167 CLR 568 at 576), or (as has sometimes been favoured in England (Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577 at 599) and Canada (Committee for Justice and Liberty v Canada (National Energy Board) [1978] 1 SCR 369 at 394; R v S (RD) [1997] 3 SCR 484 at 505, 507)) the somewhat quaint and circular phrase, a "right-minded" person. Obviously, all that is involved in these formulae is a reminder to the adjudicator that, in deciding whether there is an apprehension of bias, it is necessary to consider the impression which the same facts might reasonably have upon the parties and the public. It is their confidence that must be won and maintained. The public includes groups of people who are sensitive to the possibility of judicial bias. It must be remembered that, in contemporary Australia, the fictitious bystander is not necessarily a man nor necessarily of European ethnicity or other majority traits (R v S (RD) [1997] 3 SCR 484 at 508).
- The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer (Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 9] (unreported, Court of Appeal (NSW), 27 November 1990) at 20, cited in Australian National Industries Ltd v Spedley Securities (In liq) (1992) 26 NSWLR 411 at 419). Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided (R v George (1987) 9 NSWLR 527 at 536, per Street CJ). 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
(Page 11)
- least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances.'
- 10 Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ said, in that case (at 493), that it must be remembered that '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" (Vakauta v Kelly (1988) 13 NSWLR 502 at 507, per McHugh JA, adopted in Vakauta v Kelly (1989) 167 CLR 568 at 584 - 585, per Toohey J).' They also said that, while the fictional 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, the rules and conventions of which are not frozen in time. (See also Callinan J, at 517 - 518)."
19 The question usually arises in a situation in which there is an application that a Judge disqualify him or herself by reason of apprehension or perception of bias. This being a case in which the point is taken on appeal rather than as a preliminary point seeking disqualification, and when the argument is that the proceedings before McKechnie J involved a denial of procedural fairness by reason of a reasonable perception of bias, it is necessary for the appellant to demonstrate, applying the test I have indicated above, that the circumstances did give rise to a reasonable perception of bias.
20 As Steytler J observed in McCreed (at [16]) the test is reasonably strict and particular sensitivity may need to be shown in some cases. I would be prepared to accept that cases in which a litigant is self-represented will usually fall into that category. But that is not to suggest self-represented litigants should be entitled to rely upon unreasonable or ill-considered apprehensions or those founded upon the lack of even a rudimentary understanding of basic legal processes.
21 Mr Mullany, who, in the best traditions of the Bar, appears pro bono on behalf of the appellant, submits there are two features of the proceedings before the Master on 28 October which assume significance. They are that the appellant was then unrepresented, and secondly (and, it is submitted, critically) the exchanges took place in his absence. Counsel
(Page 12)
- submits that the different considerations to be taken into account where a party is unrepresented are well-recognised and the need for vigilance where proceedings are conducted in the absence of a self-represented litigant is heightened further because there exists a greater capacity for what is said by a judicial officer to the lawyer for the other side at an interlocutory stage to undermine the confidence of the absent party, and the public, in the purity and integrity of the system.
22 Counsel acknowledges that he is driven to the submission that the perception of bias of which there was reasonable apprehension had to be that of McKechnie J and that the hearing before his Honour was tainted from the time of the directions hearing on 28 October.
23 Against that background I turn to that which transpired on 28 October and what is now said about it.
24 The applicant first refers to what was said about his affidavit dated 21 October which was filed on 22 October. The Master is first recorded as suggesting that perhaps he should have a look at it, but then saying "If he is not here, is there any point in me reading it?"
25 The applicant says that from that, it is apparent that the Master had not read the affidavit, but despite that, was expressing a view which could possibly and reasonably have been taken as reflecting an assumption of the value of that evidence - that is, that it was not even worth reading. It is contended that a person untrained in the law might possibly and reasonably take that as a preliminary view that the evidence had no value. From that it may possibly be concluded, as counsel put it, that "the process lacks integrity - not just what's happening before the Master there, but the proceedings in their entirety".
26 I do not consider that to be even a possible construction of what the Master was saying, much less a reasonable one.
27 The reasonable observer would read the comments made by the Master in the context in which they were made, in the sense of both what was said at the directions hearing on 28 October and the nature and purpose of that interlocutory hearing. Such an observer would also have regard to the material that was then before the Master.
28 It is apparent from what was said that although the Master had not read the affidavit prior to the matter being called on before him on that occasion, he was obviously at least looking at it whilst counsel was
(Page 13)
- speaking to him and he was responding. That is necessarily so because the Master's very next comment was:
"It says an awful lot and it says nothing at the same time presumably. 'I'm a self-employed advocate, intercessor, negotiator, investigator'. Intercessor?"
30 The Board had previously provided the Court with an affidavit of Ms Daly sworn 29 September 2004 in which she deposed that she is a process server and recounted her efforts to serve the papers in this matter upon the appellant. She deposed that on the afternoon of Thursday 19 August 2004 she went to a residential address at Spearwood. She knocked on the front door and was greeted by a middle-aged man. She told him she wished to see Arthur Heedes. The man told her there was no-one of that name at the property. She said she thought that was strange because she was given that address to see him. She then went on to explain that she had important legal papers that the appellant needed to receive as soon as possible as there was an urgent court hearing. She deposed that the man at the property then told her the appellant was his stepson and that if she would give him her name, he would pass it on to the appellant. The man then made a telephone call and after speaking with someone on the other end of the telephone line, brought it to her to speak to a male who she understood to be the appellant. He told her that he did not live at the property and not to bother his parents. She asked him where he did live, to which he responded that if there were any papers to be served they could be served on his postal address. She told him that if he was a lawyer he should know she could not serve documents on a post office box number. He replied that he was not a lawyer. He asked her what the documentation was about and she told him it was between himself and the Board. He asked her why the Board was involved as he was not a lawyer. He went on to say that he had met with the Chairman of the Board, gave that person's name and suggested she leave the documents with him. Again, she told him that was not possible and suggested he give her an address where she could serve the documents upon him personally. There were some further exchanges about the nature of the documents. He gave her his mobile telephone number in case anyone wished to contact him but was not prepared to arrange a time
(Page 14)
- or place for her to serve the documents on him. She accordingly terminated the conversation.
31 In his affidavit filed 22 October 2004 the appellant deposed that the annexure, being his letter dated 1 October 2004 to Ms Daly, "… clearly shows I am at serious issue with [her] over the inaccurate and misleading and deceptive content of her affidavit, and therefore availed her the opportunity to set the record straight and amend such accordingly."
32 The flavour and purport of the appellant's letter dated 1 October to Ms Daly appears sufficiently from the following portion:
"Undoubtedly you have already been forewarned by Mr Cornes from Minter Ellison Lawyers, of my intent to communicate with you over your sworn affidavit of the 29th October 2004?
I must advise that this correspondence and any possible response or lack thereof, will be submitted as evidence in the matter of 2062 of 2004 in the Supreme Court and other possible legal proceedings.
Your sworn affidavit is not as factually accurate as it could and or should be, for which I am unsure as to the exact reasoning behind such, whether it be inadvertent error, unclear exact recollection, failure to take notes or record events or a deliberate intent to mislead and deceive, hence the need for clarification as you would undoubtedly agree?
Given the importance and magnitude of such, I find it necessary to draw your attention to sections 124, 125 and 129 of The Criminal Code in relation to Perjury and Fabricating evidence.
In order to clear up and ameliorate hopefully what is just inadvertent error, I would invite you by way of amended affidavit or return correspondence to me via facsimile on 94577642 by no later than the 12th October 2004, to deal with ALL of the following issues in seriatim;
1. On what specific date were you first asked to prepare and or swear the said affidavit?
2. On what specific date and what form ie: (telephone, fax, letter, personally) did you first communicate your inability to personally serve the said documents and to whom specifically?
(Page 15)
- 3. Is the affidavit in exactly your own words or that of the preparer from Minter Ellison?
4. I would ask you to address the time discrepancy as noted in paragraph 1.
5. In paragraph 2, I would ask you to clarify your initial greeting and discussion with the occupant as to 'I advised him that I would like to see Arthur Heedes' and the purported response of 'There is no one of that name at the property'. Given that these purported comments are not contained within italics, is it that these comments are just a generalisation of what took place in your mind, as the 'Middle aged man' you refer to quotes different words verbatim?
6. Further in paragraph 2, you state verbatim 'that's strange, because I was given this address to see him.' Whom specifically gave you the address of 20 Kent Street Spearwood to see me and what gave you the impression that I would be sitting around waiting at a residential property at that time of the day to accept service of the said documents?
7. Upon your unsuccessful service of the said documents, please provide full particulars of when, where and how the said documents were returned to Minter Ellison lawyers? …"
33 There was much more in the same vein. As to this, the appellant went on to depose in his affidavit:
"To the date of swearing this affidavit, I have not heard from Rosalie Daly whatsoever in response to my very serious concerns as contained in Annexure AH1 and given that I had immediately forewarned Mr Cornes of Minter Ellison of the concerns at the last hearing on the 30th September 2004 and given that it was Minter Ellison who prepared the document for the deponent to sign for which I consider to be perjury, it is clearly apparent to me and my firm belief that Minter Ellison have instructed Rosalie Daly not to respond".
34 The appellant then continued in his affidavit to deal with other affidavits provided by the Board. It is unnecessary to set out or describe the content of that. It is, perhaps, sufficient to convey something of the style and content of it to set out par 22:
(Page 16)
- "The issue in paragraphs 9 and 10 has been evidenced previously by both Ms Durmanich and I in sworn affidavits, yes I did HELP prepare the conditional appearance but did not exclusively prepare such and I DID NOT file such and I DID NOT sign the document myself and the return service address is that of Miss Durmanich NOT MINE. The applicant is seeking to turn the matter on the usage of the words 'being prepared by the deponent upon instruction from Ms Durmanich' and that the affidavit 'was compiled at the request of Ms Durmanich by the respondent.' The word instruction is vernacular not solely contained with the law fraternity in the sense of 'employing or authorizing a solicitor or barrister to act on behalf of the instructor,' it also means as defined by the Oxford English dictionary, 'to inform someone of a fact or situation' and/or 'detailing information telling how something should be done.' Given there is not a scintilla of evidence submitted by the [Board] to remotely suggest that I have passed myself off as a lawyer or legally qualified person, in fact there is incontrovertible evidence showing I go out of my way to inform people otherwise, then it is an extreme stretch or I consider it flummery or an effleuraging of the facts by the applicant, to put forward that using the word 'instruction' was meant in the legal sense, IT WAS NOT."
35 In the context of the procedural hearing, the substantive issues ultimately to be resolved on the Board's application and the material already filed, it was, I think, a fair comment for his Honour to remark that the affidavits said:
36 "… an awful lot and … nothing at the same time presumably".
37 On the most favourable construction, it was apparent even on a cursory look at the affidavit, that in it the appellant (although to some extent dealing with the Board's allegations) said a great deal about matters which could not possibly have had any bearing upon the substance of the Board's application.
38 In fact, it must be noted his Honour was not even referring to the substance of the affidavit at that point but rather the appellant's description of his employment.
39 The next complaint is that the Master said he had already discussed the matter with McKechnie J and his Honour was going to hear it. More
(Page 17)
- particularly, complaint was made of what the Master said about him not being sure whether or not he had power to commit the appellant to prison, but whether he did or not, he would prefer McKechnie J to deal with the matter, adding the observation "he is used to doing that sort of thing".
40 It is submitted that one possible reasonable interpretation of that exchange is that the Master was saying there had been a discussion between him and McKechnie J in relation to the penalty, not in relation to the latter's availability, and that construction is borne out more readily when what followed is considered in conjunction with it. The argument was that notwithstanding that other interpretations may be open, to an unrepresented litigant, who was not present but who was reading this later, the interpretation being advanced on behalf of the appellant was one which was both possible and reasonable. Counsel submitted that whilst the lay observer is not to be taken as wholly uninformed, what they are not to be taken to know is how the legal system operates and the intricacies of it.
41 The further submission was made that the remark "he is used to doing that sort of thing" (being a reference to McKechnie J) carried with it the possibility that it would be interpreted as giving rise to a predetermination that committal was likely; that the information that there had been discussions between the Master and the trial Judge about penalty, before any evidence had been considered or submissions advanced, could be interpreted as giving rise to a possibility that the matter had been prejudged. It was submitted that such an impression would be reinforced by the Master's comment that it was not going to take very long - the suggestion being that it would not take very long because a prejudgment was likely to have been made.
42 In summary, counsel submitted that whilst the appellant conceded that other interpretations were open, the question was whether or not that which he was advancing might be one arrived at by a person who could be described as both reasonable and fair-minded, bearing in mind, critically, that the person is not a lawyer, even if familiar with the workings of the court.
43 Counsel referred to S v Legal Practice Board of Western Australia (2004) 29 WAR 173, particularly at [79] and [80].
44 That was a case in which objection had been taken to the registration of the appellant's articles with the Board. In large part the objection was based on the appellant's conviction for stalking a female law student
(Page 18)
- whilst he too was a student. The Board held a full inquiry pursuant to s 9 of the Act and ultimately expressed itself satisfied that he was of good fame and character for the purpose of registration of his articles. Having completed his articles, the appellant sought a certificate from the Board that he was of good fame and character and fit and proper to be admitted as a legal practitioner. The Board held a further inquiry and concluded it was not satisfied he was of good character and fit to be admitted as a legal practitioner. That conclusion was founded on information which had not been before the Board on its previous inquiry and a finding that he had exhibited a lack of candour in not disclosing certain information. His appeal to the Full Court was allowed. One of the appellant's grounds of appeal was that three members of the Board should have disqualified themselves from sitting on the second inquiry on the basis of their membership of the Women Lawyers' Association. At the time, one of the members was President of that Association and another was the immediate past President. The submission was made in light of a letter sent by the Association to its members advising that the Committee had decided it was not able to lodge an objection on behalf of the Association, that being a course suggested by some members. The Full Court considered there was no merit to the submission based on that letter. However, certain behaviour of two of the Board members was said to be indicative of bias. That issue was dealt with at [79] and [80] of the judgment:
"79 … It was suggested, in a letter written by the appellant's solicitors to the Board, that those two women sat together and 'exchanged remarks and looks which manifested antagonism towards the [appellant]'. As contained in the letter, a broad allegation of 'looks' and 'remarks' is one which cannot be sensibly dealt with. However, it was submitted, and the submission was supported by an affidavit which was tendered to us for the purpose of the appeal, that during the course of closing submissions of counsel for the appellant, counsel submitted that the appellant had done sufficient 'penance' for his stalking conviction, and that one of those women remarked to the other, who nodded in agreement, 'not long enough'.
80 A number of observations should be made about this remark. The first is plainly that the concern, which it caused the appellant and those close to him, illustrates why it is widely acknowledged that judicial officers and those exercising like functions should refrain from
(Page 19)
- offhand or flippant remarks during the course of a hearing. The second observation is that it appears to us that the remark was offhand and flippant. As the Board points out in its reasons at par 4.7, in particular, the role which the Board performs is not a punitive one, but is protective of the community. It is not for the Board to be concerned with whether punishment imposed under the criminal system has been either inappropriate or inadequate. The Board clearly appreciated, it seems to us, that questions of 'penance' were wholly irrelevant to the questions which it had to determine. Finally, we would note that the remark was, in any event, one apparently made during the course of closing submissions. A remark which might give rise to a reasonable apprehension of bias, in the sense of a prejudgment of the issue, at an earlier time, may well not be inappropriate if made at a time when all of the evidence has been heard, and the party affected has had the opportunity to make submissions. While it would clearly have been better had the remark never been made, it is our view that all of the circumstances to which we have referred are such that it was not necessary for either of those members to disqualify herself on the basis of either apprehended or actual bias."
45 Counsel submits that the three factors which the Court found significant in reaching the conclusion that the remarks made did not give rise to a reasonable apprehension of prejudgment were first that the remark was off-hand and flippant, secondly the professional responsibilities of the Board are to act in the public interest rather than in any punitive way, and thirdly, the remarks were made in the course of closing addresses. It is said that none of those features operate in the present case.
46 Although the comments by the Master certainly could not be said to have been flippant (as indeed they ought not to have been) those particularly relied upon by the appellant were "off-hand", if all that is meant by that is casual, perfunctory, not reflecting a considered or serious view, or simply made in passing. It is, to my mind, beyond question that is all they were. Secondly, whilst the jurisdiction which the Court was being called upon ultimately to exercise was punitive, the Master was not engaged in that process in any substantive way at the time, a fact which was necessarily patently obvious to anyone reading the transcript -
(Page 20)
- particularly to someone reading it with the knowledge that the substantive hearing was later heard and determined by a different judicial officer. Thirdly, whilst the remarks the subject of complaint in S v The Legal Practice Board were made by two members of the Board which actually conducted the inquiry, these remarks were made by a Master when the substantive hearing was conducted and the determination made by a Judge.
47 Counsel for the appellant referred to Ruffles v Chilman (1997) 17 WAR 1, submitting that although that case was "not on all fours" with this one, it was "not dissimilar".
48 There, the appellant was a plaintiff in a claim for damages for personal injury. After he had given evidence, the trial Judge suggested the matter be mediated by a Registrar. The Registrar, in the course of mediation, made comments to the plaintiff and his solicitor that he had spoken to the trial Judge and formed the opinion that the trial Judge had a negative view of the plaintiff's evidence or credit. The matter was not settled on mediation and when the trial resumed, the appellant applied for the Judge to disqualify himself. The Judge refused. On appeal it was held the refusal was an error.
49 The critical factor in Ruffles v Chilman is apparent from the following passage from the judgment of Kennedy J (with whom Franklyn and White JJ agreed) at 7 - 8:
"When the matter was raised before him, his Honour made no attempt to deny that he had conveyed to the Deputy Registrar as mediator any adverse view which he had formed as to the credibility of the appellant. Nor did his Honour indicate that he had, and would retain, an open mind until the conclusion of the evidence in the case. He merely suggested that the Deputy Registrar had not been purporting to give any view expressed by him as the trial Judge on the matters, but 'simply giving a view of his conclusions from what had happened'. That ignored totally the uncontradicted assertion that the trial Judge had spoken to the Deputy Registrar. It was not simply a case of the Deputy Registrar drawing an inference from the referral of the matter back to him.
In the circumstances, his Honour's approach to the issue was such as to be likely to increase, rather than diminish, the appellant's apprehension as to his Honour's having already
(Page 21)
- reached a conclusion on the appellant's credibility before having heard all the evidence, and, in particular, the medical evidence.
In this case, I consider that the appellant would have been left with a reasonable apprehension of bias. He was given no reassurance when the subject was raised by his counsel."
50 In my view, Ruffles v Chilman is entirely distinguishable from the present case. There, the circumstances giving rise to the apprehension of bias arose out of the Judge's conduct of the trial and his own remarks, against the background of what had been said by the Deputy Registrar. Here the appellant points to nothing said or done by the trial Judge, but relies wholly on inferences (which I consider to be unreasonable in any event) from comments made by the Master which do not purport to convey or reflect any view taken or likely to be taken by the trial Judge.
51 Other cases relied upon by the appellant, Southern Equities Corporation Ltd (In liq) v Bond & Ors (2000) 78 SASR 339 and Kwan v Kang & 2 Ors [2003] NSWCA 336, are similarly distinguishable.
52 In Southern Equities, an appeal on the ground of perceived bias was upheld where the trial Judge had earlier formally dismissed an application for an injunction in the same proceedings, and in so doing, expressed such conclusive findings about questions of fact and the credibility of witnesses as to give rise to an apprehension that those views would not be changed by the hearing of further evidence. The essential circumstances of Kwan were similar to those in Southern Equities.
53 As I have observed, in the circumstances of this case, as counsel for the appellant acknowledged, it was essential to his argument to show the circumstances give rise to a reasonable perception that McKechnie J had prejudged the case adversely to the appellant. That turns upon whether such an inference could reasonably be drawn from what the Master said about having already discussed the matter with McKechnie J.
54 Contempt is a unique offence, in that not only is it the only criminal offence which still exists in this State at common law, but it cannot be prosecuted on indictment and is dealt with by the civil processes of the court, albeit that it must be proved beyond reasonable doubt (R v Lovelady; Ex parte Attorney-General [1982] WAR 65, 66 - 67, 69; R v Eades (No 2) (1991) 6 WAR 532; Witham v Holloway (1995) 183 CLR 525).
(Page 22)
55 As at 28 October 2004, O 55 r 2 of the Rules of the Supreme Court provided that where a contempt is committed in the face or hearing of the Court or which consists of disobedience to a judgment or order of, or breach of undertaking to the Court, an order of committal could be made by a single Judge, but otherwise such an order could be made only by the Full Court. As the contempt charged here was a statutory contempt under the Act, and the Master was sitting in Judge's Chambers pursuant to an internal direction by the Chief Justice, it is hardly surprising that he was uncertain about whether or not he had the power to commit the appellant to prison. A reasonable and fair-minded non-lawyer, having sought to be informed on the most basic considerations relating to the legal process concerned here, would have appreciated the Master was exercising his mind about the issue of jurisdiction and coming to a conclusion that it would be prudent to refer the matter to a Judge who would have power to make whatever order might become necessary, if it did. Such an observer would have appreciated that it was necessary for listing purposes for the Master to consider how long the hearing might take and for him to conclude, having regard to the issues involved and the affidavit material before him, that it would not take long.
56 The Master's reference to McKechnie J being "… used to doing that sort of thing", even if it could be taken as meaning that his Honour was used to sending people to prison, could not give rise to a reasonable apprehension that McKechnie J had prejudged (or would prejudge) the case. Of course, the reasonable observer is to be presumed to have read the transcript when the appellant did, which was after judgment had been delivered, and accordingly with the knowledge that his Honour did not send the appellant to prison. Be that as it may, I do not consider the Master's remark about "that sort of thing" is reasonably capable of being taken by an informed lay observer in the way contended for by the appellant, either in isolation or when read with the other comments made by him. It could reasonably only have been a reference to the Judge being experienced in criminal cases and for that reason, in the Master's opinion, therefore better fitted than he to deal with what was essentially a criminal case where there was a potential prospect that the question of imprisonment might arise.
57 I do not consider it at all open to conclude that a reasonable observer might have concluded that there had been discussions between the Master and McKechnie J about conviction and penalty such as to indicate that the latter might have prejudged the case against the appellant; nor do I consider it open to infer that a reasonable observer would have concluded that the discussions between the Master and McKechnie J went beyond
(Page 23)
- those necessary to ascertain whether his Honour was available to hear the matter and, if so, when.
58 I accept that where an objection is made on the basis of apprehended bias, the "whole of the circumstances must be considered" and the "cumulative effect" of what transpired must be evaluated (Re JRL; Ex parte CJL (1986) 161 CLR 342 at 371; Kola v District Court of South Australia [2001] SASC 268 at [38]). Nonetheless, in my opinion, the first particular of the ground of appeal has not been made out.
59 The appellant next attaches significance to what he contends were two other procedural irregularities which, when considered with what occurred on 28 October 2004 in his absence, further erode the confidence of the reasonable and fair-minded lay observer in the purity of the judicial process.
60 This was a reference to various affidavits upon which the respondent relied before McKechnie J. It appears that they were not filed in the Court on the record, but were provided to the Master on 28 October 2004 under cover of a letter from the respondent's solicitors. They came before the Court in that way. There is no complaint that the documents were not served on the appellant or he was not aware of the content of them. It is put simply that this was a procedural irregularity which further suggested a pre-disposition of the Court to favour the respondent.
61 The third particular relates to an affidavit of the appellant sworn on 19 November 2004. That had been filed with the Court. However, at the hearing before McKechnie J, the appellant simply assumed it was before his Honour and made no specific reference to it. It not being put before his Honour, the affidavit accordingly never came into evidence at the hearing. However, counsel properly conceded at the hearing before us that the material in that affidavit was already before the Judge by way of other affidavits and when asked what the relevance of this particular affidavit was, counsel responded "There was no relevance …". Once again, the argument was put on the basis that it was all about the impression likely to be created in circumstances where the affidavit had not been ruled to be inadmissible but was not considered by the trial Judge.
62 Neither alone nor in combination with the events of 28 October do these additional matters give rise to a perception of bias in the accepted sense. In the end, counsel conceded that if the Court was not persuaded that what occurred on 28 October was insufficient to give rise to the
(Page 24)
- apprehension of bias, then it could not arise based solely on a consideration of these two matters. I agree.
63 In my opinion, the ground fails in its entirety and the appeal must be dismissed.
22
24
1