Jackson v The Queen
[2019] VSCA 65
•22 March 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0046
| KATHERINE JACKSON | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | NIALL JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 22 March 2019 |
| DATE OF RULING: | 22 March 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 65 |
---
PRACTICE AND PROCEDURE – Recusal application – Apprehended bias – Acted as counsel for party to proceeding in which the applicant was a party – Test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – Application refused.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Dr T Alexander with Mr H Kirimof | Paul Vale Solicitors |
| For the Crown | Mr M Gibson SC with Ms D Mandie | Mr J Cain, Solicitor for Public Prosecutions |
| For Victoria Legal Aid | Mr A Aleksov | Victoria Legal Aid |
NIALL JA:
Introduction and factual background
The applicant for leave to appeal, Ms Katherine Jackson, was an officer in the Health Services Union of Australia (‘the HSU’), a federally registered trade union. She faces a number of charges of theft, obtaining financial advantage by deception, and obtaining property by deception. The property that forms the subject of the charges is said to belong to the HSU. She has pleaded not guilty to those charges and a trial is to be held in the County Court in April.
On 22 January 2019, Ms Jackson applied for an order for legal representation pursuant to s 197 of the Criminal Procedure Act2009 (‘the Act’). That application was heard on 31 January 2019 and refused by the judge of the County Court on 22 February 2019.
Section 197(3) of the Act provides as follows:
If a court is satisfied at any time that —
(a) it will be unable to ensure that the accused will receive a fair trial unless the accused is legally represented in the trial; and
(b) the accused is in need of legal representation because the accused is unable to afford the full cost of obtaining from a private law practice or private legal practitioner legal representation the trial —
the court may order Victoria Legal Aid to provide legal representation to the accused, on any conditions specified by the court, and may adjourn the trial until that legal representation has been provided.
It appears that the only matter in issue before the judge was whether the applicant could satisfy the Court that she was unable to afford the full cost of legal representation as required by s 197(3)(b) of the Act. The judge concluded that he was not satisfied that the applicant was unable to afford the full cost of legal representation and refused her application.
Ms Jackson has applied for leave to appeal from the decision made in the County Court, refusing her application for an order requiring the provision of legal aid. That application is listed this morning before three judges of this Court, including myself.
At my request, a Senior Registry Lawyer of the Court of Appeal (‘Registry Lawyer’) wrote to the parties advising them that I appeared for the Commonwealth Minister for Employment and Workplace Relations (‘Commonwealth Minister’) in Brown v Health Services Union.[1] Ms Jackson was a party to that proceeding. The proceeding concerned the appointment of an administrator to the HSU East Branch of the HSU and HSUeast, an organisation of employees registered under the Industrial Relations Act 1996 (NSW).
[1][2012] FCA 644.
In response to that communication, the applicant’s solicitors wrote to the Registry Lawyer by email, stating that the applicant objected to me being a member of the Court of Appeal hearing this application, on the basis that I was Senior Counsel for the Commonwealth Minister in Brown v Health Services Union,[2] in which Ms Jackson was a party. There was no elaboration in the email from the applicant’s solicitors as to the basis upon which the applicant submitted that I should not sit as a member of the Court today.
[2]Ibid.
Neither the respondent, being the Crown, nor Victoria Legal Aid (‘VLA’), who applied to intervene in the application and have been given leave to appear, object to my sitting.
The proceedings in the Federal Court
The proceedings in which I appeared was heard in the Federal Court in 2012. The proceedings were somewhat complicated.
The proceedings (which were in fact commenced as four separate actions) related to what was said to be disfunction in the HSU. More specifically, the proceedings related to the conduct of the NSW branch of the federally registered union (known as the HSU East Branch), and a counterpart organisation of employees registered under the Industrial Relations Act 1996 (NSW), referred to as HSUeast. The disfunction related to financial and other irregularities in what was effectively the NSW branch and the New South Wales state registered union. As I apprehended it, Ms Jackson was not an officer of either the NSW branch or the NSW state registered organisation.
I appeared with Mr Borenstein SC for the Commonwealth Minister, who had commenced a proceeding seeking a declaration under s 323(1) of the Fair Work (Registered Organisations) Act 2009 (Cth) regarding the dysfunction in the HSU East Branch and HSUeast. Ms Jackson had also commenced her own proceeding relating to the compliance with the union rules by various officers within the HSU. The matters were heard before Flick J.
Although both Ms Jackson and the Commonwealth Minister had brought their own proceedings, those respective proceedings were discontinued and an action brought by another officer of the HSU, a Mr Brown, proceeded, seeking similar orders to those that had been sought by the Commonwealth Minister. The Commonwealth Minister intervened in that proceeding and Ms Jackson was a respondent. For part of the proceeding she was represented and for the remainder she appeared for herself.
The Federal Court declared that the HSU East Branch (which was a branch of the federal registered union) and the NSW registered organisation, HSUeast, had ceased to function effectively and that there were no effective means under the rules of the organisations by which they could be enabled to function effectively. The Court also ordered the appointment of an administrator, the Honourable Michael Francis Moore, to the HSU East Branch and HSUeast.
I did not act for Ms Jackson in that proceeding. The proceedings did not concern, as I recall it, any allegation of misconduct on the part of Ms Jackson. It appears that one of the precursors of the proceeding was a referral by Ms Jackson of allegations of corruption levelled at officers of HSUeast and the HSU East Branch to New South Wales Police.[3]
[3]Ibid [3].
I do not recall that any submission was made on behalf of the Commonwealth Minister that was adverse to Ms Jackson in the context of that litigation. In substance, the relief sought by the Commonwealth Minister in his application was not incompatible or inconsistent with the relief sought by Ms Jackson in her application.
The proceedings in this Court
The proceeding before this Court is an application for leave to appeal against the decision of the judge of the County Court, who is to hear the trial of Ms Jackson, refusing to order the provision of legal aid. The resolution of that application does not require any consideration of the merits or otherwise of the charges.
Applicable principles
The principles to be applied where it is contended that a decision maker is affected by apprehended bias are well-established. In my oral ruling, I indicated that I would set out the relevant principles in my written reasons and, accordingly, I have set out these principles below.
In Ebner v Official Trustee in Bankruptcy (‘Ebner’),[4] the High Court explained that, putting aside cases of actual bias — and I interpolate to note that no allegation of actual bias was made in the present case — where a question arises as to the independence or impartiality of a judge, the governing principle is that 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.[5]
[4](2000) 205 CLR 337 (‘Ebner’).
[5]Ibid 344 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ) (citations omitted).
The application of this governing principle requires a two-stage analysis. First, it requires the identification of what it is said might lead a judge to decide a case other than on its legal or factual merits.[6] The second stage requires the articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.[7]
[6]Ibid 345 [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[7]Ibid.
The factors that might lead a decision maker to exercise a power other than on a neutral evaluation of its merits are not immutable. In Webb v The Queen (‘Webb’),[8] Deane J provided a list of the following four relevant factors:
[8](1994) 181 CLR 41.
a) disqualification by interest, where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment;
b) disqualification by conduct, including published statements, either in the course of, or outside, the proceedings, giving rise to such an apprehension of bias;
c) disqualification by association, where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings; and
d) disqualification by extraneous information, where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.[9]
[9]Ibid 74.
In relation to disqualification by interest, it is notable that Deane J observed that an interest in a proceeding might give rise to an apprehension of prejudice, partiality or prejudgment. In relation to the potential overlap between the categories, Deane J observed that association will often overlap with interest.[10] To similar effect, in Ebner, the High Court observed that a judge’s shareholding in a litigant may be considered to both give rise to an interest in the litigation and an association, as shareholder, between the judge and a party.[11]
[10]Ibid.
[11]Ebner (2000) 205 CLR 337, 343 [2], 350 [31] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
In Ebner, four members of the High Court regarded the categories set out by Deane J in Webb as distinct, though overlapping, and as providing a convenient frame of reference.[12] In other words, the categories are an analytical tool to be used in the application of the governing principle.
[12]Ibid 348–9 [24] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
In Re Polites and Another; Ex parte Hoyts Corporation[13] the High Court considered whether a prior legal relationship between a judge and a party gave rise to a reasonable apprehension of bias. Justices Brennan, Gaudron and McHugh held that a prior relationship of legal adviser and client does not generally disqualify the former adviser, on becoming a member of a court, from sitting in proceedings before that court to which the former client is a party.[14] That general proposition is qualified if the correctness or appropriateness of advice given to the client is a live issue for determination by the court, in which case the legal advisor should not sit.[15]
[13](1991) 173 CLR 78.
[14]Ibid 87–8.
[15]Ibid 88.
In Precision Fabrication Pty Ltd v Roadcan Pty Ltd,[16] Mildren J refused an application to disqualify himself on the basis that he had, as counsel, successfully appeared in earlier proceedings against one of the parties then before him, and where the earlier proceedings involved the same contract and the same land as was under consideration in the matter before the judge. It was submitted that the judge should disqualify himself on the basis that, as counsel, he had called into question the party’s bona fides, he would be called upon to determine similar issues and no one knew what instructions he may have been given concerning that party’s honesty or bona fides.[17] Justice Mildren refused to disqualify himself on the basis that it had not been demonstrated that he had, as counsel, called the party’s bona fides into question.[18] There was no reason apprehend that issues might not be able to be determined with fairness or impartiality and whether or not his Honour had received any instructions in relation to the other party was a matter of speculation.[19]
[16](1991) 104 FLR 260.
[17]Ibid 263.
[18]Ibid 264.
[19]Ibid 265.
I also note the observation of Mason J in Re J.R.L.; Ex parte C.J.L[20] that it is the duty of the judge to sit where proper grounds for disqualification do not exist.[21] His Honour emphasised that it is important that judicial officers discharge this duty 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’.[22]
[20](1986) 161 CLR 342.
[21]Ibid 352, cited in Bienstein v Bienstein [2003] HCA 7 [35]–[36] (McHugh, Kirby and Callinan JJ).
[22]Re J.R.L.; ex parte C.J.L (1986) 161 CLR 342, 352.
The applicant’s submissions
In oral argument, counsel for the applicant submitted that the basis on which I should disqualify myself is that I may have learnt something, through my role as counsel for the Commonwealth Minister in the Federal Court proceeding, that might in the mind of a fair-minded lay observer indicate that I would not bring an impartial mind to current proceeding. When pressed, counsel for the applicant was not able to identify any particular matters that would have this effect.
Disposition
In my view, the claim for apprehended bias has not been made out. I am not satisfied that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the issues that arise in the present application by reason of my acting as counsel for the Commonwealth Minister in earlier litigation concerning the HSU.
There is no logical connection between my acting for the Commonwealth Minister in Brown v Health Services Union[23] and my ability to impartially determine the issues that fall for determination in the present application. Indeed, no submissions were advanced by the applicant that would give rise to such a logical connection.
[23][2012] FCA 644.
The fact that I appeared in a proceeding in which Ms Jackson was also a party is not of itself sufficient to give rise to a reasonable apprehension that I might not bring an impartial mind to the resolution of the application for leave to appeal. A fair-minded lay observer would be aware 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.
The issues raised in that proceeding are not the same as those currently before the Court. The issues that were in play in the 2012 proceeding, including whether the HSU East Branch and HSUeast were operating appropriately and whether an administrator should be appointed, are entirely irrelevant to the legal and factual issues tendered on the application concerning s 197 of the Act.
Even if there were some factual overlap, and none was identified, that, of itself, would not be sufficient to engender a reasonable apprehension of bias. I did not act for Ms Jackson. Nor, it might be added, did I act for a party that was in substance opposed to Ms Jackson. Even if there were a divergence of interest, that would not mean that the submissions made by me as counsel, together with or apart from Mr Borenstein SC, would provide any basis to conclude that I might not bring an impartial mind the resolution of issues that fall for determination in this proceeding.
The submission that I had obtained may have obtained (unidentified) material in that proceeding that might bear upon the application for leave to appeal was not developed and is purely speculative.
Apart from the submission that there might be some relevant matter giving rise to a reasonable apprehension of bias, no detail was provided in submissions and there was no suggestion that I gained any information or understanding as a result of appearing in the proceeding for the Commonwealth Minister that could be relevant to the determination of the application for leave to appeal before the Court in the present proceeding. If, as a general rule, acting for a person does not present a disqualifying feature, it could not be the case that acting for a different party to earlier litigation would preclude a judge from later acting in subsequent litigation involving the same party.
For the reasons set out above, the application that I disqualify myself must be refused.
- - - - -
6
0