Howard, R.C. v Gallagher, N.L

[1988] FCA 667

GENERAL DISTRIBUTION MOT REQUIRED

CATCHWORDS

INDUSTRIAL LAW - Courts and Judges - bias - submission that

judge should not hear case - importance of justice being seen

to be done - duty of judge to hear cases allocated to him

Livesey v New South Wales Bar Association (1983) 151 CLR 288

J.R.L. Ex parte; C.J.L. (1986) 161 CLR 342

HOWARD v GALLAGHER

Nos. V 12 and 13 of 1986

REELY J.

MELBOURNE

7 NOVEMBER, 1988

GENERAL DISTRIBUTION NOT REQUIRED

IN THE FEDERAL COURT OF AUSTRALIA)

)

VICTORIA	DISTRICT	REGISTRY	) Nos. V	12	&	13	of	1986
)

INDUSTRIAL DIVISION	)
B E T W E E N :

ROBERT CHARLES HOWARD

Prosecutor

A N D :

NORMAN LESLIE GALLAGHER

Defendant

KEELY 1988 7 NOVEMBER, J.

(DELIVERED EX TEMPORE - REVISED FROM TRANSCRIPT)

In these two matters the defendant has been charged

with offences against S. 182(1) of the Conciliation and

Arbitration Act 1904, alleged to have taken place on 4 April,

1986.    The charges are, in substance, that he said words

calculated to bring into disrepute he Australian

Conciliation and Arbitration Commission and a member of it,

namely Mr. Justice Ludeke. Mr. John Dwyer, of Queen's

Counsel, and Mr. Bromberg, of counsel, appeared on behalf	of
the defendant and submitted that the court, as presently

constituted, should not hear	the	two cases. They have not
alleged actual bias	but have relied	upon the principle
enunciated by five members of the High Court in Livesey v	-	The

.

c 2.

New South Wales Bar Association (1983) 151 CLR 288 at 293-4:-

"It was common ground between the parties
to the present appeal that the principle to
be applied in a case such as the present is

that laid down in the maioritv iudoment in

v Watson; Ex parte- ArmitGonq (1976)

*CLR 248 at 258 - 263 . That principle is

that a judge should not sit to-hear a case

if in all the circumstances the parties or

the public might entertain a reasonable

apprehension that he might not bring an

impartial and unprejudiced mind to the

resolution of the question involved in it.

That principle has subsequently been

applied in this Court (see,	e.g., Re Jud e
Leckie; Ex parte Felman (1977) 52 ALJR	4
at 158	v Shaw; Ex parte Shaw (1980)

55 ALJR *at 14, 16) and in the Supreme

Court of New South Wales (see, e.g. Barton

v Walker [l9791 2 NSWLR 740, at 7 4 8 m

...

In a case such as the present where there

is no allegation of actual bias, the

question whether a judge who is confident
of his own ability to determine the case

before him fairly and impartially on the

evidence should refrain from sitting

because of a suggestion that the views

which he has expressed in his judgment in

some previous case may result in an

appearance of pre-judgment can be a

difficult one involving matters "of degree

and particular	circumstances may strike
different minds in different ways"	(per
Aickin J. in Shaw (1980) 55 ALJR	at p. 16).

If a judge a t n s t instance considers that

there is any real possibility that his

participation in a case might lead to a

reasonable apprehension of pre-judgment or
bias, he should, of course, refrain from

sitting. On the other hand, it would be an

abdication of judicial function and an

encouragement of procedural abuse for a

judge to adopt the approach that he should
automatically disqualify himself whenever

he was requested by one party so to do on

the grounds of a possible appearance of

pre-judgment or bias, regardless of whether

the other party desired that the matter be

dealt with by him as the judge to whom the

hearing of the case had been entrusted by
the ordinary procedures and practice of the

particular court."

The views expressed by their Honours, towards the nd

of that passage, as to a possible "abdication of judicial

function and an encouragement of procedural abuse" were

reiterated in the case of J.R.L.; Ex parte C.J.L. (1986) 161

CLR 342 at 352 by the present Chief Justice of the High

Court, who said:-

"Although it is important	that justice must
be seen to	be done, it is equally important

that judicial officers discharge their duty

to sit and do not, by acceding too readily

to	suggestions	of	appearance	of	bias,
encourage	parties	to	believe	that	by

seeking the disqualification of	a judge,
they will have their case tried	by someone
thought to	be more likely to decide the

case in their favour."

As to the English authorities, in Metropolitan

Properties Co. (FGC) Ltd. v Lannon and Others	119691 1 QB 577
at 599 Lord Denning, M.R. said:-

"The court will not enquire whether	he did,
in fact, favour one side unfairly. Suffice
it that reasonable people might think	he
did. The reason is plain enough. Justice

must rooted be confidence: in and

confidence is destroyed when risht-minded people go away think-ing: 'The -judge was

biased' . 'I

That passage was quoted	by the Court of Appeal, in a judgment
delivered by Ackner LJ., in R v Liverpool City Justices	-
[l9831 1 All ER 490 at 494.

AS the Full High Court said in Livesey's case (at 294

- in the passage quoted earlier) "the question whether a

judge ... should refrain from sitting	... can be a difficult
one involving matters 'of degree"'.	The present matter, in

my opinion, is one in which the "particular circumstances may

strike different minds in different ways" to use the words of

Aickin J. in Shaw's case (1980) 55 ALJR at page 16.

Mr. Dwyer has read to me certain passages from reasons

for judgment in Viner and Others v Australian Building

Construction Employees' and Builders Labourers' Federation and others (No. 3) (1982) 63 FLR 242 at 244 and 246, which I delivered on 18 May, 1982. Those were the reasons for

deciding that Mr. Gallagher should be sent to prison for

contempt of court, consisting of intimidatory conduct engaged in by him for purposes which included dissuading persons from giving evidence in certain deregistration proceedings. In

those reasons for judgment	I expressed the views "that there
can be no greater contempt than to intimidate	a witness
before he gives his evidence" and that "it is difficult to

immagine a greater contempt han to engage in such

[intimidatory] conduct for the purpose of inducing a party to discontinue [proceedings which had been instituted In this court] ." I also expressed the view that Mr. Gallagher's

conduct "was intended to ... interfere with the course of

justice in this Court by both deterring witnesses and by

inducing applicants to withdraw from the deregistration

proceedings. "

Since adjourning the hearing this morning I have

re-read and reflected upon those passages. Having regprd	to:
(1) those	passages,
( 2 )	the fact that these are criminal proceedings,
( 3 )	the nature of the alleged offences, and
( 4 )	the issues which Mr. Dwyer, on behalf of the
defendant, has submitted are likely to arise for determination,

I have come to the conclusion that the proper course is to

grant the defendant's application.

In those circumstances both of these matters will be adjourned to the next callover list in Melbourne which	is on
Friday, 25 November, 1988 at 9.30 a.m.
I	certify that this and the
preceding four pages are a true

copy the of r asons for

judgment delivered on 7

November, 1988 by his Honour

Mr. Justice Keely.