Ivanovic v Sweeney

[1991] HCATrans 160

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IN THE HIGH COURT OF AUSTRLAIA

Office of the Registry

Brisbane No B7 of 1991

B e t w e e n -

ALEXANDER IVANOVIC

Applicant

and

LLOYD SWEENEY

Respondent

WORKERS' COMPENSATION BOARD OF

QUEENSLAND

Respondent

Application for special leave

to appeal

Ivanovic 1 27/6/91

BRENNAN J
TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 27 JUNE 1991, AT 11.52 AM

Copyright in the High Court of Australia

MR J.G. CROWLEY, QC: If the Court pleases, I appear with my

learned friend, MR N. SAMIOS, for the applicant.

(instructed by H. Drakos & Company)

MR J.J. CLIFFORD, QC:  May it please the Court, I appear

with my learned friend, MR T. MATTHEWS, for the

respondents. (instructed by Quinlan, Miller &

Treston)

BRENNAN J: Yes, Mr Crowley?

MR CROWLEY:  We have some cases which we have had bound but

we found an authority which is also in the

Commonwealth Law Reports so it will come up

separately, unfortunately, from the bound copies.

BRENNAN J: Is this the fairly usual and well-trodden path

that we are accustomed to?

MR CROWLEY:  Your Honour, it is. There are also some bound

portions of the record which we will hand up. We
believe it will be unnecessary for us to refer to

the pages but it may be necessary to do so.

The background of the matter is contained in

paragraph 1 of the affidavit of

Constantine George Castrisos which is at page 21 of

the application book. The action was one for

damages for personal injuries by a servant against

a master. The relationship was denied, negligence

was denied and injury was denied but a claim was
made for contributory negligence.

Because of the remarks of the learned senior master and the attitudes exhibited by him, counsel

asked him late in the hearing to disqualify himself

from the further hearing of the action. The

learned senior master declined to do so although he

gave no reasons for that decision.

The principle 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 might not bring an impartial and

unprejudiced mind to the resolution of the question

is a well-known principle, and the first authority

which should perhaps be referred to simply to

outline the principle is that - the members of this

Court were actually sitting on. It is Vakuata

v Kelly which is shown at page 69 of the booklet.

TOOHEY J:  Mr Crowley, I would not have thought that the

principles were in any dispute in this case.

MR CROWLEY:	Thank you, Your Honour.
Ivanovic	27/6/91
TOOHEY J:	And it is true that the Full Court did not

formulate tests, perhaps precisely in the way that

they have been formulated in some of the cases.

But is not your difficulty here that all members of

the Full Court considered that there was simply

nothing in the allegation of bias?

MR CROWLEY:  Your Honour, our response to that is that in

the first place - and we will go past for the

minute, that none of the members really recited the

test in the correct fashion, but more seriously

none of the members of the Full Court actually
applied the test in the way this Court has

repeatedly applied it, so - - -

TOOHEY J:  What I am suggesting to you is that it does

appear from a reading of the judgments of the

Full Court that they thought the complaint was so

bereft of merit as not to require an enunciation of

principle and the application of principle to

particular examples.

MR CROWLEY:  Yes. Well, Your Honour, unfortunately what has

occurred is that the Full Court have looked at it

from the point of view of a judge, and
interestingly enough in Vakauta this Court and

Your Honours, the presiding Judge, and

Justice Gaudron, in one judgment, actually went to

the trouble of saying, "Well, now, here is what the

public would be seeing, now here is what a lawyer

would be seeing and here is what the party would be

seeing", and Your Honour Mr Justice Toohey in his

own judgment in that same case, looked extensively

at what the public would be seeing.

TOOHEY J: Yes, I appreciate that. Perhaps I am not making

the point clear.

MR CROWLEY: Perhaps I am not responding properly,

Your Honour.

TOOHEY J: 

What I am suggesting to you is that on a reading

of the judgment of the Full Court these questions
did not directly arise for consideration in the way

that you have expressed them simply because the

court thought, in effect, there was nothing in the

complaints however you looked at them.

MR CROWLEY: 

Your Honour, in our submission, we must really

look at the way they have judged them. Perhaps if
we could take the Court to what has happened

because, in a sense, if one judged them from the

position of a fellow judicial officer then perhaps

they can be seen to be a judicial impatient or

whatever is the categorization which His Honour

Mr Justice Derrington had developed it. But, with

respect, that, in our submission, is not the test

Ivanovic 27/6/91

and where none of the judges have applied the test,

we would submit that this Court, as a court of

review, would have the matter correctly considered

and this Court would apply the tests and our

submission, of course, is that beyond that the

applicant would be successful.

The difficulty, in our submission, is,

appreciating that Their Honours, whilst they may

have indicated that they did not see substance in

it, that is because of their position, their

incorrect position, in judging a matter of this

sensitivity. Could we give an example, if the

Court pleases. If we go to a judgment of

Mr Justice Derrington at page 8, about half-way

down:

Not that it is decisive, but it might be

remarked that considering the surprising

length of the matter -

there was evidence taken on 10 days. We would not

have thought that that was surprising, that is

quite as an aside at the moment -

and the way in which the evidence fell, the

number of occasions referred to cannot be

regarded as significant and indeed some

impatience on the Senior Master's part is not

surprising. It might be added by way of

general remark that the quality and nature of
the Senior Master's acts as complained of do
not exceed the manifestations of judicial

impatience, dissatisfaction with parts of a

witness's evidence, provisional views and

similar features which have been common in

trial courts over a long period of time

without exception being taken to them. Indeed
they are often very helpful to counsel and
witnesses by way of reminder against

irrelevance or, in the case of witnesses,

prevarication which may be tending to appear.

Sometimes these indications are more robust or

subtle and sometimes less so than in the

present case, but there is nothing either

individually or in the totality of the

Master's conduct which can be regarded as

exceptional.

Now, in our submission, that is a recitation of the

matter from the point of view of a judicial

officer, not from the point of view of a member of

the public who would be beholding what was

proceeding or not from the point of view of a

party and we can only submit, in these

circumstances, that if each of the judges has

failed to make the application of the test

Ivanovic 4 27/6/91

correctly, and we submit also, where they have not
correctly even stated it, in those circumstances,

we would submit that the other remarks, for

example, that, "There is not much in it", really is

based upon a misunderstanding of where they ought

be when considering the position.

In order to establish our point, if we might

take the Court to Vakauta's case and the Court

will -

BRENNAN J:  You will not need to remind us of the

principles, I do not think, Mr Crowley.

MR CROWLEY:  No, Your Honour. We were taking Your Honours

to where Your Honours actually applied, and if we

might, first of all, at page 573 in the judgment of

Your Honour the presiding Judge, Justice Deane and

Justice Gaudron, it is in these terms:

In particular, it seems to us that such a lay

observer would be likely to see the derogatory

and wide-sweeping references to Dr Lawson in

the judgment - "Even Dr Lawson" ; "his

evidence, which was as negative as it always

seems to be - and based as usual upon his

non-acceptance of the genuineness of any

plaintiff's complaints of pain" (emphasis

added) - as indicating that his Honour was
concerned to vindicate his preconceived and

very strong adverse views about the reliability of Dr Lawson as a witness and had allowed those

views to prejudice his whole approach to the

case to the detriment of the defendant.

Then the next passage, because it is juxtaposed

then, if the Court pleases, to another passage

which, in our submission, is vital in the context:

An experienced lawyer would appreciate the

ability of a trial judge to ensure that

preconceived views do not cause the actual

decision to be tainted by prejudgment or bias.

And then the Court adopts the mantle, once again, of the lay observer:

_ The likelihood that the lay observer would not

lies at the heart of the requirement of the

appearance as well as the reality of impartial

justice.

And then Your Honour's observations, at page 584 -

Mr Justice Toohey - and 585:

However, there can be little doubt that

his Honour's remarks would excite in the minds

Ivanovic 27/6/91

of the parties and in members of the public a
reasonable apprehension that the trial judge

might not bring an unprejudiced mind to the

resolution of the matter before him.

And at 585:

But, in this regard, the public perception of

the judiciary is not advanced by attributing
to the reasonable or fairminded observer a

knowledge of the law and an awareness of the

judicial process that ordinary experience

suggests not to be the case. Such an
observer, on being told the nature of the

litigation in the present case and then being

told of his Honour's remarks, is unlikely to

conclude that his Honour was showing no bias

against the appellant's potential witnesses

and in turn against the appellant's case as to

the extent of the respondent's disabilities.

On the contrary, the observer is likely to

conclude that his Honour would approach the

assessment of damages with a strongly held

opinion that the evidence of the appellant's

medical witnesses (which he had not heard)
would almost certainly be loaded against the
respondent and therefore be worthy of little

credence.

BRENNAN J: Mr Crowley, we are familiar, as I say, with the

principles. What is your strongest example of an

exhibition of apparent bias on the part of the

senior master?

MR CROWLEY:  In approaching this matter perhaps we ought go,

Your Honour, to Mr Justice Derrington's

explanations. They commence at page 9 of the
record, perhaps at 9 point 6, Your Honour, and we

apologize because we are really trying to select

the high point perhaps, Your Honour, as Your Honour

has asked us to do so.

BRENNAN J:  If you do not make it on the high points, you

are not going to make it on a lower one,

Mr Crowley?

MR CROWLEY:  No, Your Honour, but it was hard to pick the

one. We thought they were all high. Your Honour,

at 9.6 His Honour says:

Other complaints fell into the class of suggesting that the Senior Master made

comments which implied that he believed at

that stage that the appellant had been telling

lies in his evidence. The remarks referred to

do not carry such a necessary implication at

all. For example on one of these occasions,

Ivanovic 6 27/6/91

learned counsel for the appellant was

cross-examining a photographer who had
obtained a video tape of the appellant's

performing work contrary to his evidence.

He was pushing a motor mower, if the Court

pleases.

When counsel asked the witness whether it was

that he did not produce anything very

substantial, the Master asked what that meant,

was it "that he only caught him out as a liar

on one occasion?". This was merely a way of

asking counsel what precisely he meant by the

question because it was ambiguous insofar as

on one view of the matter it could prove to be

that the evidence did show that the appellant

was lying on that occasion.

And, unfortunately, the matter did not proceed as

His Honour would have it there, but when one allies that with the statement which he made at an earlier

time, and it arose at a much earlier time when

evidence had been - he had been cross-examined

about building a front fence. A witnesses was then

subsequently called who said he built the back and

the front fence, and we took, we would submit,

proper objection that it had not been put and, in those circumstances, it should not be allowed or,

alternatively, he should be recalled. And the

master, at that stage, commented, "Do you mean that

he might have told the truth if it was put to him

that he built the back fence?". And then, finally,

at another page in the transcript the question was

asked early in the cross-examination, "Don't you

not know the difference between the truth?" and his

response to that -

TOOHEY J:  Mr Crowley, if a judge forms an adverse view of a

witness, whether that witness is a party or not, by

reason of evidence not by reason of extraneous

considerations, is it the submission that the judge

is precluded from expressing that view before the

completion of the case?

MR CROWLEY: 

Your Honour, we would submit that that is not

the case except, Your Honour - the difficulty is
that His Honour very early in the course of the

evidence proceeded to make the sort of comment

which we have read which, in our submission, really
went further than what one might say is a

provisional conclusion upon the question of credit.

Indeed, Your Honour, much of the difficulty in

this case arose, in our submissions, because,

ultimately, when the defendant gave evidence his

testimony was of the most outlandish type and the

Ivanovic 7 27/6/91

Full Court and Mr Justice Derrington referred to

this that, in fact, on two of the issues, that of

liability and the relationship of master and

servant, the plaintiff was successful. But,

Your Honour, there are two answers, in our

submission, to that: the first is that

Sir Owen Dixon in Scales case said that one story

is good until another story is told.

TOOHEY J: Certainly, the statement may be made so

prematurely as to demonstrate bias, that is so.

MR CROWLEY:  Yes, Your Honour, and the other matter is that

indeed in Re Watson Ex parte Armstrong it was said

that a party who believes on reasonable grounds

that the judge has decided in advance to disbelieve

her evidence cannot have confidence in the result
of the proceedings even if the judge has decided to

reject the evidence of her adversaries.

So that we are not advanced, in our

submission, by His Honour ultimately saying that he

did not believe the defendant on issues which were

contested.

BRENNAN J:  Mr Crowley, you are applying here for special

leave to appeal, you are not arguing the appeal at

this stage?

MR CROWLEY:	No, Your Honour.
BRENNAN J:	The principles which govern cases of this kind

seem to be beyond doubt, very well established.

The facts of each case obviously call for

evaluation according to their idiosyncratic nature.

What is there special about this case?

MR CROWLEY:  Your Honour, our submissions in that regard

are that it is a case where there is an allegation

of an apprehensions of bias and that the High Court

has been particularly concerned to look at such

cases, and we can only point to the numerous cases

which have come from New South Wales in the last

few years. Besides Vakauta there is Grassby's

case - sorry, there is Law's case and then there is

Re Renaud -

BRENNAN J: There is no question of a statement - ration, as

it were, of cases of this kind that we take on

board, Mr Crowley. As a matter of fact, we have

been astute to try to ensure that the pendulum, as

it were, which comes with one case does not swing

too far and is understood to be correctly in the

mid-point. Now, having done that, why should this

Court take this case on board when what you are

saying is, in this particular case, the Full Court

so evaluated the circumstances as to say that there

Ivanovic 27/6/91

was no justifiable ground for holding that there

was bias in a relevant sense.

Now, that is a question of fact on the

circumstances of the case.	What is there special
about it?

MR CROWLEY:  This Court ought to take it on, if the Court

pleases, (a) because it is wrong; (b) because the

reasons really do not, in any way, demonstrate the

statement or application of the principles. There

has not been in Queensland since 1966, so far as we can find reported case should we say, the review of

a judge of supreme or district courts. If this decision remains, it is of the nature of things

that practitioners often look, even nowadays, at

their Full Courts decision before they proceed to

matters in this Court. So that we have then, in

our submission, the danger on which judgments which

do not correctly state the principles, do not apply

the principles in a case which, in our submission,

is wrong will be an authoritative pronouncement of

the Full Court of Queensland and this Court is a

court of review and this Court, in our submission,

ought then review - in its position as a court of

review, should take this matter and have it

corrected.

We really cannot put the matter any higher,

Your Honour, and we have not anything further in

the circumstances.

BRENNAN J:  We need not trouble you, Mr Clifford.

The principles in cases of this kind being

well established, we ·do not think that the
circumstances of this case give rise to any issue
which justifies the grant of special leave to

appeal. Accordingly, special leave to appeal will

be refused.

MR CLIFFORD:	We ask for costs, may it please the Court.
BRENNAN J:	Mr Crowley?
MR CROWLEY:	I have nothing to say, Your Honour.
BRENNAN J:	It will be refused with costs.

AT 12.16 PM THE MATTER WAS ADJOURNED SINE DIE

Ivanovic 9 27/6/91