Islam v Director General of the Justice and Community Safety Directorate
[2015] ACTSC 279
•10 July 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Islam v Director General of the Justice and Community Safety Directorate |
Citation: | [2015] ACTSC 279 |
Hearing Date: | 2 July 2015 |
DecisionDate: | 10 July 2015 |
Before: | Mossop AsJ |
Decision: | The application is dismissed and costs are the defendant’s costs in the cause. |
Category: | Interlocutory Application |
Catchwords: | PROCEDURE – Application for disqualification – apprehended bias – judicial officer previously acted as counsel for party to proceeding in similar class of claims – no issues raised in relation to particular conduct of judicial officer as counsel or as judicial officer – application dismissed |
Legislation Cited: | Corrections Management Act 2007 (ACT) Human Rights Act 2004 (ACT) |
Cases Cited: | British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 Eastman v Chief Executive of the Department of Justice and Community Safety [2011] ACTSC 33 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Picos v Servcorp Ltd [2015] FCA 344 Webb v The Queen (1994) 181 CLR 41 |
Parties: | Isa Islam (Plaintiff) Director General of the Justice and Community Safety Directorate (Defendant) |
Representation: | Counsel Self-represented (Plaintiff) Ms N Tarbet (Defendant) |
| Solicitors Self-represented (Plaintiff) ACT Government Solicitor (Defendant) | |
File Number: | SC 186 of 2015 |
The plaintiff’s application
The plaintiff, Isa Islam, has brought proceedings against the Director General of the Justice and Community Safety Directorate seeking orders relating to the conduct of a corrections officer who works at the Alexander Maconochie Centre (AMC), the prison where the plaintiff is incarcerated. The claim for relief is said to be based upon certain provisions of the Corrections Management Act 2007 (ACT) (CM Act) and of the Human Rights Act 2004 (ACT) (HR Act).
The specific conduct alleged to have been engaged in by the corrections officer which is alleged to give rise to the entitlement to relief is:
(a)the unlawful seizure without notice of a blue plastic A4 size protector from the plaintiff;
(b)letting another inmate out of his cell and then going to his office so that the plaintiff and the other inmate mixed unsupervised in the same area in contravention of standing orders applicable in the AMC;
(c)a “documented and clear history of” discrimination against the plaintiff which is alleged not to have been addressed in a reasonable manner by the management of the AMC.
The plaintiff has filed an application for interim relief seeking an order that he be given employment at the prison. That application also relies upon provisions of the CM Act and the HR Act. The defendant has filed an application in proceeding seeking to have the proceedings struck out.
By application in proceeding dated 15 June 2015 the plaintiff has sought that I disqualify myself from hearing the proceedings and another judge of the Court hear the matter.
The grounds of the application which the plaintiff also relied upon as his submissions in support of the application are as follows:
1. The Plaintiff submits the doctrine or principle of necessity (Laws v The Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 (at 88)) has relevance for this case, this matter has been dealt with at some length at law regarding the disqualification of a judicial officer for apprehended bias and is well known. These principles are summarised in two seminal cases in the High Court of Australia:
In R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, the High Court said (at 264):
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 questions before him with a fair and unprejudiced mind.
The principle was re-stated in Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 where the court said (at 293-4):
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 (sic) might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.
The Plaintiff asserts the Honourable Justice Mossop has previously represented the Chief Executive of the Department of Justice and Community Safety Directorate (the Defendant in this case) as a Government solicitor in cases against inmates involved in civil litigation against ACT Corrections staff (at the Alexander Maconochie Centre), and, in particular regarding cases that referred specifically to alleged Human Rights Act, 2004 breaches.
Given these matters of fact, the Plaintiff asserts even if there is not any actual bias on behalf of the learned Justice in this case, there may well be the perception of bias on behalf of the Honourable Justice Mossop by members of the public or wider community and, therefore, in accordance with the above Case law, the Honourable Justice Mossop should recuse himself in this case.
Relevant facts
While at the bar I practised, inter alia, in the area of administrative law and acted on numerous occasions in various jurisdictions for (and against) emanations of the Territory government. In particular I acted over a number of years for various entities associated with the government of the Territory in proceedings brought by Mr David Eastman. Amongst those cases were:
(a)cases in which interlocutory orders were made relating to the conduct of individual corrections officers and the Superintendent of the Belconnen Remand Centre which were the subject of the appeal in Johnston, the Superintendent of the Belconnen Remand Centre v Eastman [2009] ACTCA 8; and
(b)a case brought by Mr Eastman relating to an alleged entitlement to employment within the AMC based upon provisions of the CM Act and the HR Act: see Eastman v Chief Executive of the Department of Justice and Community Safety [2011] ACTSC 33.
Thus the position is that I have acted for the predecessor of the present defendant – the Chief Executive of the Department (and probably the defendant – the Director General of the Directorate) as well as various other Territory related entities. I have not acted for the custodial officer against whom allegations were made and I do not recall that custodial officer having been a witness in a case with which I have been involved.
Insofar as the present case involves allegations that there have been breaches of the CM Act and hence breaches of the HR Act and insofar as it involves claims for interlocutory relief relating to the conditions of detention, the present case has some factual and legal similarities to the cases involving Mr Eastman which I have referred to above.
The test to be applied
The test to be applied in relation to applications for disqualification has recently been articulated by the ACT Court of Appeal in Eastman v The Queen [2015] ACTCA 24 in the following terms (at [28]):
28.The relevant principles in relation to apprehended bias are well settled. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (Ebner), Gleeson CJ, McHugh, Gummow and Hayne JJ conveniently summarised the principles in the following terms at [6] to [8]:
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 may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
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.
(Footnotes omitted.)
There are at least three important points that emerge from this summary of the principles. Each is potentially relevant to this matter.
First, the question is one of possibilities (real and not remote) not probabilities.
Second, the principle of apprehended bias admits of the possibility of human frailty. What that relevantly may mean in the context of this matter is that the principle admits of the possibility that a fair-minded lay observer might apprehend that even the most experienced, well-regarded and well-intentioned judge, might not be able to entirely put out of his or her mind, or might be subconsciously influenced by, a matter that might affect his or her impartiality.
Third, the test requires the identification of what might affect the judge’s impartiality and its logical connection with the possibility of departure from impartial decision-making in the case at hand.
One of the recognised categories of case in which impartiality of a court may appear to be compromised is where the judge has an association, or direct or indirect relationship, experience or contact, with a person or persons interested in, or otherwise involved in, the proceedings: Webb v The Queen (1994) 181 CLR 41 at 74; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 348-349 [24] (‘Ebner’); British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 at 302 [38] (‘British American Tobacco’). That may include a witness.
In Johnson v Johnson (2000) 201 CLR 488 (‘Johnson’), Kirby J said the following about the attributes of the fictitious bystander (at 508-509 [53]):
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.
(Footnotes omitted.)
His Honour also observed (at 508-509 [53]) that “a reasonable member of the public is neither complacent nor unduly sensitive or suspicious”. See also British American Tobacco at 306 [47] (French CJ).
The plurality in Johnson emphasised (at 492-493 [12]), as an important consideration, the fact 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”. See also Vakauta v Kelly (1988) 13 NSWLR 502 at 527. The reasonableness of any suggested apprehension of bias is to be considered in that context and in the context of ordinary judicial practice: Johnson at 493 [13].
I also have regard to the statement by the plurality in Ebner (at 348 [19]-[20]):
19Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
20This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
Analogous cases
In Re Polites; Ex parte The Hoyts Corporation Pty Ltd (1991) 173 CLR 78 (‘Polites’), the High Court considered whether a member of the Full Bench of the Australian Industrial Relations Commission should hear a case involving the terms and conditions of employment of employees of The Hoyts Corporation Pty Ltd and two of its wholly-owned subsidiaries. The Deputy President had given advice to The Hoyts Corporation Pty Ltd when he was in practice as a solicitor. The question arose as to whether his presence as a member of the Full Bench of the Commission created a reasonable apprehension of bias within the principles already outlined. The Court said (at 86-88):
Again, the test in Livesey cannot be pressed too far when the qualifications for membership of the tribunal are such that the members are likely to have some prior knowledge of the circumstances which give rise to the issues for determination or to have formed an attitude about the way in which such issues should be determined or the tribunal’s powers exercised. Qualification for membership cannot disqualify a member from sitting.
...
The prior involvement of a Deputy President with associations or with governments who are frequently parties to proceedings before the Commission cannot be sufficient by itself to amount to a disqualification from sitting in a particular case; nor can the prior acquisition of “skills and experience” amount to such a disqualification.
...
A prior relationship of legal adviser and client does not generally disqualify the former adviser, on becoming a member of a tribunal (or of a court, for that matter), from sitting in proceedings before that tribunal (or court) to which the former client is a party. Of course, if the correctness or appropriateness of advice given to the client is a live issue for determination by the tribunal (or court), the erstwhile legal adviser should not sit. A fortiori, if the advice has gone beyond an exposition of the law and advises the adoption of a course of conduct to advance the client’s interests, the erstwhile legal adviser should not sit in a proceeding in which it is necessary to decide whether the course of conduct taken by the client was legally effective or was wise, reasonable or appropriate. If the erstwhile legal adviser were to sit in a proceeding in which the quality of his or her advice is in issue, there would be reasonable grounds for apprehending that he or she might not bring an impartial and unprejudiced mind to the resolution of the issue. Much depends on the nature of his or her relationship with the client, the ambit of the advice given and the issues falling for determination.
The Court then examined the circumstances in some detail and concluded that the Deputy President was not disqualified.
The Queen v Judge Russell; Ex parte Reid (1984) 35 SASR 417 (‘Judge Russell’) involved consideration of the position of a judge of the Industrial Court of South Australia who had acted as counsel for an employer in matters arising out of major industrial disputes between that employer and its employees. The judge had formerly been a member of a comparatively small industrial bar. On an application for prohibition to restrain the judge from hearing an appeal from an Industrial Magistrate, Walters J (with whom King CJ and Mohr J agreed) said (at 422):
For my part, I find it difficult to believe that a fair-minded observer would have reasonable grounds for apprehending that simply because a member of a small industrial Bar had identified himself, in his professional duties as a barrister, with the interests of a particular employer in matters of industrial disputation, he would, on his appointment to judicial office in the Industrial Court, be unable to bring a fair and unprejudiced mind to the decision of matters involving the party for whom he has formerly acted. To take the obverse position, I could scarcely believe that simply because a barrister practising in the field of industrial law had commonly acted in a professional capacity in the interests of employees, any reasonable observer would have grounds for apprehending that on the appointment of that barrister to judicial office in the Industrial Court, he would be unable to bring a fair and unprejudiced mind to the resolution of matters arising before him. If I may take the matter one step further, I think it would be absurd to suggest that on the appointment of an officer of the Crown to a judgeship of the Supreme Court of this State, he would be unable, in matters in which the Crown was a party, to administer justice with an independent and impartial mind. No fair-minded citizen could reasonably apprehend or suspect that that judge would depart from his judicial oath.
This passage was cited with approval by von Doussa J in R v Garrett (1988) 50 SASR 392 at 403-404 when rejecting a submission that a former Solicitor General who had appeared in a criminal appeal by a defendant was thereby precluded from sitting as the trial judge in a jury trial in relation to subsequent charges. In that case there was nothing in the transcript of the arguments before the Court of Criminal Appeal or the High Court which would give any cause to think that the then Solicitor General held any personal opinion about the appellant or his conduct.
Consistently with the decisions in Polites and Judge Russell, in Picos v Servcorp Ltd [2015] FCA 344 (‘Picos’) Perry J at [40] identified that the fact that her Honour had appeared for the Attorney General for the ACT in separate and unrelated proceedings had no logical connection with her Honour’s capacity as a judge to determine the proceedings fairly and impartially. Her Honour adopted the submissions of the Attorney General that:
[A] fair-minded lay observer would be aware that counsel practising in constitutional and administrative law would act for government from time to time and that a previous association as counsel would not lead a judge to decide the case other than on its legal and factual merits, particularly where the law and facts bear no relationship to the previous matter in which the judge acted as counsel.
In Eastman v Chief Executive Officer of the Department of Justice and Community Safety (No 2) [2010] ACTSC 13 Refshauge J disqualified himself from hearing a case involving Mr Eastman (ultimately heard by Mansfield J: see Eastman v Chief Executive of the Department of Justice and Community Safety [2011] ACTSC 33 referred to above). In that case his Honour had been Director of Public Prosecutions from August 1998 until his appointment in 2008. During that time there was a large number of cases in which the Director was a party in which he, through his counsel, opposed orders being sought by Mr Eastman. While the issue in the case before his Honour was different to that which had been the subject of his previous involvement, his Honour considered that his office and himself had been identified as the principal adversary to Mr Eastman in the various enquiries and proceedings in which Mr Eastman sought to have his conviction overturned. His Honour’s involvement in those proceedings and the submissions likely to have been made in those proceedings were such that the matter was enough to raise a real doubt such as that contemplated in the extract from Ebner quoted above and as a result it was prudent for his Honour not to sit on the case.
Should I disqualify myself?
Necessarily implied in the plaintiff’s submission is that the identified association with the defendant, namely having previously acted for the predecessor of the defendant in proceedings giving rise to similar issues as those likely to arise in the present proceedings, would logically lead to a feared deviation from the course of deciding the present case on its merits. That involves the proposition that a previous professional association between a barrister and a client might give rise to the relevant apprehension in a fair-minded lay observer.
In my view a fair-minded lay observer would recognise that persons appointed to a court will have previous experience which may include experience in matters similar to those which will be heard by the court to which they have been appointed. A fair-minded lay observer would recognise it would not be uncommon for a barrister practising in administrative law to have acted both for and against a range of government entities. In the same way a fair-minded lay observer would recognise that it is likely that a barrister accepting briefs in personal injury cases will have acted from time to time for, or in the interests of, a range of the larger insurance companies responsible for workers’ compensation or motor vehicle insurance. In the absence of something more than that professional relationship, a fair-minded lay observer could not reasonably suspect that the previous association with the government client might lead the judge to resolve the questions before him or her other than with a fair and unprejudiced mind.
That conclusion is consistent with the decision in Polites that so long as the correctness, appropriateness, wisdom or reasonableness of the advice given to the client is not a live issue for determination by the court a judicial officer is not precluded from hearing a case involving a party for whom he or she has previously acted. In the present case it could not reasonably be apprehended that the correctness, appropriateness, wisdom or reasonableness of advice given in the course of, or related to, those earlier proceedings may be a live issue in these proceedings.
It is correct to point out that, as distinct from the circumstances considered in Picos, the circumstances of the present case are similar to the circumstances of the earlier cases with which I was involved in the following respects:
(a)the present claim and the earlier cases involve claims relating to the management of the AMC;
(b)the present claim and the earlier cases involve applications for orders relating to the conduct of individual corrections officers;
(c)the present claim and the earlier cases placed reliance on the provisions of the HR Act and the CM Act as the basis for the making of orders affecting the operations of the AMC;
(d)the present claim is likely to involve a claim for interim relief relating to the management of the plaintiff within the AMC.
In my view the fact that there are elements in the present case common to those which existed in previous cases in which I have acted as counsel would not change the position. There are many areas of law where there is a similarity in circumstances of cases: motor vehicle personal injury cases, criminal cases involving violence or sexual assault and administrative law cases relating to immigration decisions are matters which immediately come to mind. Having previously practised in an area of law which gave exposure to cases of a similar nature to cases coming before the court could not of itself give rise to an apprehension that the judicial officer would not bring a fair and unprejudiced mind to the resolution of the case before the court. There is in my view, nothing in the circumstances of those earlier cases which would take the matter beyond the situation that would arise in relation to most appointees to the bench who have previously practised at the bar in a particular area of law.
As a consequence in my view this is not a case in which a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the question that I am required to decide. Further it is not a case where I consider, consistently with the passage from Ebner quoted above, that because the question is one of real doubt it would be prudent for me not to sit.
The application is therefore dismissed. Unless either party wishes to be further heard on costs, the costs will be the defendant’s costs in the cause.
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 14 September 2015 |
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