Hurst and Devlin v State of Queensland

[2004] FCA 427

FEDERAL COURT OF AUSTRALIA

Hurst & Devlin v State of Queensland [2004] FCA 427

PRACTICE AND PROCEDURE – reasonable apprehension of bias – Judge’s social friendship with a public advocate of a particular method of Deaf education – additional factors disclosing direct involvement between public advocate and applicant – whether Judge ought recuse himself

Disability Discrimination Act 1992 (Cth)

Regina v Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarte (No. 2) (2000) 1 AC 119 considered
Bienstein v Bienstein (2003) 195ALR 225 referred to
S & M Motor Repairs Pty Ltd and Others v Caltex Oil (Australia) Pty Ltd and Another (1988) 12 NSWLR 358 referred to
R v Mr Justice R.S. Watson, a Judge of the Family Court of Australia, Ex parte Armstrong (1976) 9 ALR 551 referred to
R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256;
[1923] All ER Rep 233 referred to
Re Media, Entertainment and Arts Alliance, Ex parte Hoyts Corporation Pty Ltd (1994) 119 ALR 206 considered

TIAHNA HURST (BY HER NEXT FRIEND, GAIL SMITH) v STATE OF QUEENSLAND  and BENJAMIN DEVLIN (BY HIS NEXT FRIEND, KIM DEVLIN) v STATE OF QUEENSLAND

No Q 200 of 2002
No Q 201 of 2002

SPENDER J
BRISBANE
31 MARCH 2004

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 200 OF 2002

BETWEEN:	TIAHNA HURST (BY HER NEXT FRIEND, GAIL SMITH) APPLICANT
AND:	STATE OF QUEENSLAND RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	31 MARCH 2004
WHERE MADE:	BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY		Q 201 OF 2002

BETWEEN:	BENJAMIN DEVLIN (BY HIS NEXT FRIEND, KIM DEVLIN) APPLICANT
AND:	STATE OF QUEENSLAND RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	31 MARCH 2004
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

The matter be adjourned to the Registry.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 200 OF 2002

BETWEEN:	TIAHNA HURST (BY HER NEXT FRIEND, GAIL SMITH) APPLICANT
AND:	STATE OF QUEENSLAND RESPONDENT

JUDGE:	SPENDER J
DATE:	31 MARCH 2004
PLACE:	BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY		Q 201 OF 2002

BETWEEN:	BENJAMIN DEVLIN (BY HIS NEXT FRIEND, KIM DEVLIN) APPLICANT
AND:	STATE OF QUEENSLAND RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	31 MARCH 2004
WHERE MADE:	BRISBANE

REASONS FOR JUDGMENT

1. I have been requested by counsel on behalf of the applicants in these two matters, Q200 and Q201 of 2002 to recuse myself on the ground of a reasonable apprehension of bias.  To have to rule with such an application is invidious, and I have to say gives me no pleasure.  The basis for the application is as follows. 

2. The applicants claim that the State of Queensland has acted in contravention of the Disability Discrimination Act 1992 (Cth) in the context of the applicants in each of the proceedings. The applicants are either profoundly deaf or severely deaf.

3. The evidence in the trial has proceeded for two and a half days.  One of the experts called on behalf of the applicants was Dr Komesaroff.  The case for each applicant can, in my estimation, fairly be labelled as uncompromising.  The assertion on behalf of the applicants is that the education of the applicants, and indeed the education of any child who is profoundly or severely deaf, can only effectively be achieved by using AUSLAN, a signed deaf language, as the teaching medium.  Teaching by other methods, any other methods, including what has been called the total immersion method, or by signed English, or orally, or any combination of the methods other than AUSLAN is, in the applicants’ view, and consistent with their case, unlawful as being contrary to the anti-discrimination legislation.

4. The claim is that the education by any method other than by AUSLAN deprives the deaf child of the opportunity to reach their full potential and impinges on their human rights.  This strongly-held view, central to the applicants’ case, in the competing theories or contentions about Deaf education, can be illustrated in part by the views of Dr Komesaroff, an expert witness for the applicants, which appear in part of her thesis headed “Power, Minorities and Bi-Lingualism”.  In 3.4 of that document, under the heading “Contested world views: cochlear implantation”, she says:

   ‘Clearly language practices are highly contested in deaf education and the collision of world views is nowhere more apparent than in the debate over cochlear implantation which contests the construction of deafness.  In reviewing primarily the Australian literature, I have selected accounts from the medical community and policy statements from the Deaf community to highlight the conflict in world views.  This thesis raises the issue of cochlear implantation because of its place in an investigation of language practices and concerns of teachers in one of the case studies in which a quarter of the student population have been implanted …’

5. And then, a little bit later she says:

   ‘One hundred and ten member nations at the 1995 World Congress of the Deaf passed a resolution opposing cochlear implantation for children (WFD, 1995a, 1995b).  The commission on medicine and audiology at the congress discussed the condemnation of childhood implant surgery by many Deaf organisations around the world, the rights of sign-language speaking communities to be protected under international conventions, and the lack of scientific evidence that children born deaf are likely to acquire spoken language.  Other points discussed included the issue that “it is unethical to use surgery in an effort to change a child so that the child will end up in the majority culture, or closer to it, rather than as a member of a linguistic and cultural minority” (WFD cited in AAD, 1997d, p. 20).  The WFD affirms sign language as the basis for normal language development:

   The Congress does not recommend Cochlear Implant operations for Deaf children because Cochlear Implants will not help the language acquisition of a Deaf child and can harm the emotional/psychological personality development and physical development.  On the contrary [a] Sign Language environment strongly supports the whole development, both linguistic and other development, of the Deaf child (WFD, 1995b, p.12).

   The WFD claims deaf people’s rights continue to be violated in education and medicine …’

6. At the next adjournment after Dr Komesaroff had given evidence, I invited Senior Counsel to my chambers and informed them that one Dimity Dornan, a well-known teacher of the deaf at the Hear and Say Centre, was a social friend of mine and had been so for many years.  I had first met her in the early 1960s when we fenced together at the University of Queensland Fencing Club.  My contact with her over the years has been quite sporadic, less than a dozen times over the next 30 years, but in recent years much more frequent.  For the last two or three years my wife and I, and Dimity and her husband, Peter Dornan, have attended New Years Eve parties at the home of a mutual friend, and only recently, but without any connection with this trial, my wife and I have accepted an invitation to the Dornan home for an Easter party which will be held during next week-end.  We have never visited their home before, nor have they visited ours.

7. My friendship has been social and not particularly close, but the connection, as I have indicated, has been a little closer in more recent years.  I should indicate that I have no connection, personally or in any other way, with the Hear and Say Centre, the methods of instruction of which Dimity Dornan is a public advocate, and I presume, a committed adherent.  I have no views, one way or the other, as to what method is appropriate in any particular context, and I am not in any sense a partisan of the philosophy of the Hear and Say Centre.

8. This absence of connection, in my view, distinguishes my present position from that of Lord Hoffman in the Regina v Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarte (No. 2) (2000) 1 AC 119 (“Pinochet”), to which some reference will have to be made. 

9. The circumstances of the basis for the assertion of apprehended bias appears from paragraphs 2 to 6 of the affidavit of the instructing solicitor for the applicants in these two proceedings, Mr Gary Wayne Scott filed in court this morning, 31 March 2004.  In that affidavit, he says:

   ‘2.I was told yesterday by senior counsel James Gray that he had a conversation with his Honour yesterday in which he indicated that he had a close personal friendship with Dimity Dorman of the Hear & Say Centre, [that] he had been a friend of hers for approximately 35 years and that he was attending an Easter party at her residence.  He did also indicate to counsel that he had had no discussions with and would not have any conversations with her about these matters.

   3. Dimity Dorman is a high profile identity in the area of education of deaf children and advocates a position which is not the same as that which the Applicants seek.  Dimity Dorman, I believe, is a firm believer in her method of educating deaf children to the exclusion of other methods.

   4.I yesterday and this morning had discussions with Gail Smith in relation to her relationship with Dimity Dorman.  Gail advised me, and I do verily believe, that she has previously been in conflict with Dimity Dorman.  I am also advised that Dimity Dorman has refused Tiahna Hurst attendance at her Hear and Say Centre due to certain conditions not being met.

   5.I believe that the television program “A Current Affair” published a story in relation to, amongst other things, the disputes between Gail Smith and Dimity Dorman/The Hear and Say Centre.  We believe that the Respondents may seek to cross examine Gail Smith in relation to the aforesaid A Current Affair story, and may seek to tender this video.

   6. In the cross examination by Mr Bain, QC it is apparent that clear references are being made to the differences in political, ideological support between different methods of communicating with and the education of deaf children.’

10. In relation to par 5 of that affidavit, Mr Bain QC, Senior Counsel for the State of Queensland, has indicated that there will be no reference in their cross-examination of the mother of the female applicant in relation to the Current Affair story referred to in that paragraph, nor is it any part of their case that there has been a serious dispute between Dimity Dornan and Mrs Hurst involving Tiahna Hurst. 

11. Nonetheless, these extra features, namely that there had been a personal involvement of Dimity Dornan with Tiahna Hurst and her mother in relation to her education (which was attended with a considerable degree of personal acrimony), and also some direct involvement of Dimity Dornan with the program that was broadcast on A Current Affair, were communicated to me this morning.  I had yesterday indicated that my mere social connection with the person that I thought was simply an advocate of one of the philosophical factions involved, and concerned about Deaf education, was not a basis on which I ought properly to recuse myself.

12. The circumstances this morning have added some extra features to that relationship, and raise the question again of whether I can, with propriety, continue to be involved in the further hearing of this trial.  The test is not in dispute.  In Bienstein v Bienstein (2003) 195 ALR 225 at 231-232, the High Court said in respect of a refusal by Hayne J to disqualify himself for apprehended bias as follows:

    ‘A judge is disqualified from determining a case if the judge is biased or a party or a member of the public might reasonably apprehend that the judge is biased (Dickason v Edwards (1910) 10 CLR 243; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-4; 47 ALR 45 at 48-9; Vakauta v Kelly (1989) 167 CLR 568; 87 ALR 633; Johnson v Johnson (2000) 201 CLR 488 at 492[11], 498-9 [31]-[35];174 ALR 655 at 658, 663-4; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-5 [6]-[8], 363 [83], 397 [184]; 176 ALR 644 at 647-8, 662-3, 690-1; cf at CLR 394 [175];ALR 688; see also Campbell and Lee, The Australian Judiciary 2001 pp 137-44).  Bias exists if the judge might not bring an impartial and unprejudiced mind to the resolution of the issues (Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87; 93 ALR 435 at 447 per Mason CJ and Brennan J).

    Mrs Bienstein contended before Hayne J that his Honour was precluded from hearing her matter as a result of a conflict of interest.  This alleged conflict arose because Hayne J had practised at the Victorian Bar and Mrs Bienstein’s applications involve allegations involving court and judicial officers in Melbourne.  In the “appeal” to this court, Mrs Bienstein has also alleged that Hayne J showed “actual bias” in prejudging her application and that he gave insufficient reasons for refusing to stand aside.

    When Hayne J provided his reasons for refusing to disqualify himself, Mrs Bienstein stated that his Honour had “set [her] mind completely at ease” and that she had “no reservations about [his] being able to judge this [application] on its merits”.  Thus, at the hearing, Mrs Bienstein appeared to be satisfied of the sufficiency of Hayne J’s reasons for not disqualifying himself.  It seems likely that it is the fact that Hayne J did not find in her favour that has triggered her present allegations of bias and reasonable apprehension of bias.  But however that may be, the allegations of bias and reasonable apprehension of bias have no substance.

    Relevantly to the present matter, a reasonable apprehension of bias may exist where the presiding judge has a substantial personal relationship with a party to, or a person involved in, proceedings or a substantial personal relationship with a member of the family of that party or person (Emanuele v Emanuel Investments Pty Ltd (1997) 139 FLR 36).’

    The High Court (McHugh, Kirby and Callinan JJ) said at 233:

    ‘In Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; 66 ALR 239 at 246, Mason J 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.”

    A judge should not disqualify himself or herself on the basis of bias or a reasonable apprehension of bias unless substantial grounds are established.  In the present case, Mrs Bienstein’s allegations regarding apprehended or demonstrated bias on the part of Hayne J are without basis.  While Mrs Bienstein is clearly dissatisfied with the result of her applications before Hayne J, there is no evidence whatever that Hayne J did not bring an unprejudiced mind to the application.’

13. The position here is one of apprehension of bias.  I think it plain that the applicant parties and those that advise them would, if I were to find against them, be unable to divorce that result from their apprehension that the result was coloured by the fact of my friendship with an advocate of an opposing view of Deaf education.  Their views quite frankly are not the relevant ones.  As was said by Priestley and Clarke JJA in S & M Motor Repairs Pty Ltd and Others v Caltex Oil (Australia) Pty Ltd and Another (1988) 12 NSWLR 358 at 381:

    ‘We have left the dialogue in that state to emphasise that in this case the court must choose between the apprehension of the average (and relatively uninformed) citizen and that of the ordinary citizen with sufficient knowledge of the subject to make a reasonable judgment.  In other words, justice must be seen to be done, but by what observers?  We think, in a case such as the present, where some particular knowledge is needed for a sensible opinion to be formed, the only apprehension of possible bias worth considering is that of the moderately informed observer rather than an observer at first uninformed, and when informed unable to explain adherence to his or her first opinion.  This conclusion is related to our earlier comment that the reasonable observer would want to know, at least in outline, the relevant information, before deciding whether or not to be apprehensive of possible bias.’

14. In that case Kirby J was in dissent.  His Honour said, at 368:

    ‘Necessarily, where what is alleged is a reasonable apprehension of bias, the fact situations will greatly vary.  Thus the apprehension of bias may be grounded in prior judicial activity (as it was in Livesey) or in family, financial or professional relationships with one of the parties.  The determination of whether there is, by the stated test, a reasonable apprehension of bias depends upon a full understanding of the facts from which it is suggested that such apprehension arises.  In so far as such bias is said to arise from a relationship between the parties, it is clearly relevant to know the duration of that relationship, its intensity and nature and the time that has elapsed between its last renewal and the performance of judicial functions said to be affected by it.’

15. As his Honour points out in that passage, what may fairly ground an apprehension of bias to a reasonable observer varies from case to case, and I have to say that this case is very much on the margin, in my opinion.  This is not a case like the position of Lord Hoffman in the Pinochet legislation.  There is no connection or perceived connection between the merits of the issues in this litigation and any commitment, one way or the other, that I might have concerning those issues.

16. It therefore follows that the observations of Lord Hutton, who is the only one to deal directly with the question of apprehended bias, do not have the same resonance in the present case as they might otherwise have.  Lord Hutton said, in Pinochet at 146:

    ‘I wish to make it clear that I am making no finding of actual bias against [Lord Hoffman].  But I consider that the links, described in the judgment of Lord Browne-Wilkinson, between Lord Hoffman and Amnesty International, which had campaigned strongly against General Pinochet and which intervened in the earlier hearing to support the case that he should be extradited to face trial for his alleged crimes, were so strong that public confidence in the integrity of the administration of justice would be shaken if his decision were allowed to stand.’

17. There is no connection of that kind by me in the present case. 

18. In R v Mr Justice R.S. Watson, a Judge of the Family Court of Australia, Ex parte Armstrong (1976) 9 ALR 551 by Barwick CJ, Gibbs, Stephen and Mason JJ at 561-562, quoting from the iconic case of R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259; [1923] All ER Rep 233 at 234:

    ‘ “It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”  After saying that he stood by that principle, Lord Denning MR continued ([1969] 1 QB at 599): “… in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity.  It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other.  The court looks at the impression which would be given to other people.  Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit.  And if he does sit, his decision cannot stand …  Nevertheless there must appear to be a real likelihood of bias.  Surmise or conjecture is not enough …  There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other.  The court will not inquire whether he did, in fact, favour one side unfairly.  Suffice it that reasonable people might think he did.  The reason is plain enough.  Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased’”.’

    And later at 564, their Honours said:

    ‘The view that a judge should not sit to hear a case if in all the circumstances the parties or the public might reasonably suspect that he was not unprejudiced and impartial, and that if a judge does sit in those circumstances prohibition will lie, is not only supported by the balance of authority as it now stands but is correct in principle.  It would be wrong to regard the observations of Lord Hewart CJ in R v Sussex Justices; Ex parte McCarthy, supra, as meaning that the appearance of justice is of more importance than the attainment of justice itself: cf R v Camborne Justices; Ex parte Pearce ([1955] 1 QB at 52). However, his statement of principle, which was recently reaffirmed in this court in Stollery v Greyhound Racing Control Board (1973) 128 CLR 509 at 518-9; [1972-73] ALR 645 at 649-50, does go to the heart of the matter. It is of fundamental importance that the public should have confidence in the administration of justice. If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision. To repeat the words of Lord Denning MR which have already been cited, “Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased’”.’

1. The test is and was, as expressed at 565 in that case, at line 35:

   ‘The question is whether it has been established that it might reasonably be suspected by fair-minded persons that the learned judge might not resolve the question before him with a fair and unprejudiced mind.’

2. I would have thought that in the ordinary case the fact that the Judge has a social friendship with a person associated with one of a number of competing views in issue in litigation would not provide a proper basis on which the Judge should recuse himself.  There are many cases, particularly those of a political flavour, or those which may involve industrial relations questions, where friendships of those kinds may be a factor.  In Re Media, Entertainment and Arts Alliance, Ex parte Hoyts Corporation Pty Ltd (1994) 119 ALR 206 the Full Court (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ) said at 210:

   ‘The rule against bias is directed to ensuring that a judge or a member of a tribunal that is bound to act judicially brings and is seen to bring “an impartial and unprejudiced mind to the resolution of the question” to be decided.  (Livesey v New South Wales Bar Association (1983) 151 CLR 288, at 294; 47 ALR 45 at 48. See also R v Watson; Ex parte Armstrong (1976) 136 CLR 248, at 262; 9 ALR 551; Vakauta v Kelly (1989) 167 CLR 568; 87 ALR 633; Grassby v R (1989) 168 CLR 1; 87 ALR 618; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; 93 ALR 435; Re Polites; Ex parte Hoyts Corp Pty Ltd (1991) 173 CLR 78, at 91-2; 100 ALR 634; Re Finance Sector Union of Australia; Ex parte Illaton (1992) 66 ALJR 583; 107 ALR 581) One aspect of the rule, and the only one that is relevant for immediate purposes, is that the decision should be made on the basis of the evidence and the argument in the case, and not on the basis of information or knowledge which is independently acquired. That aspect of the rule is similar to but not identical with the rule of procedural fairness which requires that a person be given an opportunity to meet the case against him or her. However, in the case of the rule against bias, the question is not whether there is or was an opportunity to present or answer a case, but whether, in the circumstances, the parties or the public might entertain a reasonable apprehension that information or knowledge which has been independently acquired will influence the decision.

   As a general rule, a judge or a member of a tribunal that is bound to act judicially should disclose his or her independent knowledge of factual matters that bear or may bear on the decision to be made. (See, for example, R v Industrial Appeals Court; Ex parte Maher [1978] VR 126, at 143) In some cases, it may be that he or she should stand down from the proceedings. (ibid, at 144) However, precisely what should be disclosed and what, if any, other action should be taken may involve a consideration of the nature of the tribunal, its composition and organisation. (See, with respect to the Commission, Re Polites; Ex parte Hoyts Corp Pty Ltd (1991) 173 CLR, at 86-8. See also Labour Relations Board of Saskatchewan v John East Iron Works Ltd [1949] AC 134, at 151)’

3. Their Honours’ comment:

   ‘As a general rule, a judge or a member of a tribunal that is bound to act judicially should disclose his or her independent knowledge of factual matters that bear or may bear on the decision to be made.’

   underpinned my disclosure of social friendship, when some possibility of disqualifying factual factors appeared.  It turns out however that my initial concern, which was really out of an abundance of caution, became compounded by the communication of information which suggested that there was a personal involvement of Mrs Dornan with some of the circumstances of this case, which case reflects a zealous antagonism by the applicants’ witnesses to all other forms of Deaf education.

4. It is that circumstance which, on balance and at the end of the day, has convinced me that the better course is to recuse myself.  I indicated earlier that it is likely that, were I to find against the applicants, they would think that that finding was tainted by my personal social acquaintance with a leading advocate of a competing viewpoint.  That is, as I have said, not in any sense a determinative matter; the question is whether a reasonable observer might entertain such a view.  I cannot, at the end of the day, say that such a reasonable observer might not hold a view. 

5. Regrettable though it is, there was no way of knowing in advance that this might have happened, and it is of course a matter of regret that the expense of the trial thus far has to be put to one side.  That material may not be totally wasted; it will be a matter for the parties and their legal advisers to consider how best the matter might proceed in the future. 

6. In the circumstances, I merely adjourn the further hearing of these proceedings to the Registrar. 

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender .

Associate:

Dated:            8 April 2004

Counsel for the Applicant:	Mr James Gray with Mr Matthew Smith
Solicitor for the Applicant:	KPS Lawyers
Counsel for the Respondent:	Mr Robert Bain QC with Mr Christopher Murdoch
Solicitor for the Respondent:	Crown Solicitor's Office
Date of Hearing:	29-31 March 2004
Date of Judgment:	31 March 2004