GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
BRIAN GODFREY JOHNSON APPELLANT
AND
KATHLEEN JOHNSON RESPONDENT
Johnson v Johnson [2000] HCA 48 7 September 2000 P60/1999
ORDER
Appeal dismissed with costs.
On appeal from the Family Court of Australia
Representation:
G Griffith QC with R S Ingleby for the appellant (instructed by Lewis, Blyth & Hooper)
D F Jackson QC with K R Wilson for the respondent (instructed by Kim Wilson & Co)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Johnson v Johnson
Courts and judges – Bias – Reasonable apprehension of bias – Application for disqualification for bias – Statement by trial judge about evidence to be relied upon – Whether statement gave rise to reasonable apprehension of bias.
GLEESON CJ, GAUDRON, McHUGH, GUMMOW AND HAYNE JJ. The question in this appeal from the Full Court of the Family Court of Australia is whether the trial judge, Anderson J, was disqualified from continuing to hear the case on the ground of apprehended bias. The Full Court of the Family Court decided that question in the negative.
The parties to the appeal were married in November 1979. The marriage was dissolved in 1996. The proceedings before Anderson J arose out of a dispute as to the financial arrangements to be made following such dissolution. There was a substantial amount at stake. It was held that there was what the Full Court described as an "asset pool" valued at nearly $30 million. Anderson J decided that the respondent (the wife) should receive 40 per cent of that pool. One of the principal areas of dispute at the trial, which lasted for 66 days, concerned the extent of the appellant's assets and, in particular, whether he was beneficially interested in substantial offshore assets owned by other persons and entities. It is unnecessary to go into the detail of that dispute. What is important is that, at the trial, the respondent was asserting, and the appellant was denying, that the appellant was beneficially interested in various assets, and the investigation of that issue of fact involved a great deal of hearing time.
On the twentieth day of the hearing, Anderson J made a comment which resulted in an application by counsel for the appellant that he should disqualify himself.
The application for disqualification
The comment of Anderson J referred back to statements made earlier in the trial, and to an application by the appellant's counsel, to which the statement was a response. It is necessary, therefore, to examine the context.
The record of the trial shows that there was recurring argument about the discovery of documents, and frequent objection by counsel for the appellant to what he contended to be an undue widening of the scope of discovery. Before the commencement of the trial, both the appellant and the respondent filed written statements of the evidence they were to give. The…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Johnson v Johnson [2000] HCA 48
Case
[2000] HCA 48
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal to the High Court of Australia from a decision of the Full Court of the Family Court of Australia. The appeal was brought by the husband, who sought the disqualification of the primary judge, Anderson J, from hearing his case on the grounds of apprehended bias. The sole ground upon which special leave to appeal was granted related to a statement made by the primary judge during the proceedings.
The central legal issue before the High Court was whether a statement made by the primary judge, after hearing the respondent's evidence but before hearing the appellant's evidence, gave rise to a reasonable apprehension of bias. The appellant argued that the statement indicated the judge had prejudged the credibility of his evidence, thereby depriving him of a forensic advantage and an equal opportunity to present his case. The High Court was required to determine the standard by which such an apprehension of bias is to be judged, particularly the perspective of a fictitious bystander with knowledge of legal practices.
The High Court, in dismissing the appeal, reasoned that when the primary judge's statement was considered in its full context and in light of his subsequent explanation, it did not demonstrate a concluded view on the credibility of either party, nor an intention to prejudge the appellant's evidence. The judge's observation was understood as an expression of his expectation regarding the importance of independent and documentary evidence, rather than a prejudgment of the appellant's truthfulness. The Court held that an apprehension of bias would have been unwarranted and unreasonable in these circumstances.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
Upon one of the questions raised by this appeal, differing views have, in the past, been expressed in Australia[18]. That question concerns the extent of knowledge of the issues in the particular case, and of legal practices and procedures, that the appellate court will attribute to the fictitious bystander whose judgment is invoked as the touchstone for reaching a conclusion that apprehended prejudgment exists[19].[18]See eg S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 ("S & M Motors"); Australian National Industries Ltd v Spedley Securities Ltd (In Liq) (1992) 26 NSWLR 411 ("Spedley Securities"); R v Masters (1992) 26 NSWLR 450.[19]R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; R v Watson; Ex parte Armstrong (1976) 136 CLR 248 ("Watson"); Re The Queen and His Honour Judge Leckie; Ex parte Felman (1977) 52 ALJR 155; 18 ALR 93; Webb v The Queen (1994) 181 CLR 41 at 47 ("Webb"). The facts and common ground The facts are stated in the reasons of the other members of the Court[20]. The issue for decision is whether, given the observations of the primary judge in the Family Court of Western Australia, Anderson J, read in context, the conclusion of the Full Court that there was no apprehended bias has been shown to be erroneous. Of all the many matters contested between the parties in the courts below, this is the sole ground upon which special leave to appeal to this Court was permitted.[20]Reasons of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at [1]-[9]; reasons of Callinan J at [63]-[69]. Forensically, the appellant (the husband) had, in my opinion, two arguable points. The first was essentially a factual point. The trial before the primary judge, when his Honour made the statement complained of[21], was already in its twentieth day. The statement was made after the judge had listened to the respondent's oral evidence and before he had heard the appellant's oral evidence. If the judge had waited to make his observation until after the appellant's oral evidence had been given, no complaint could have been made. It was the fact that the judge said what he did without first hearing the appellant's oral testimony that gave rise to the appellant's submission that the judge had prejudged the credibility of his evidence.[21]Set out in the reasons of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at [7]; reasons of Callinan J at [64]. However important other oral testimony and documentary evidence might be in clarifying the complex property arrangements of the appellant, the assessment of his own truthfulness was bound to have an impact, at least to some degree, on the ultimate consideration and outcome of the parties' dispute. The factual point of the appellant's case was that the judge did not allow the appellant an equal chance to make whatever impression he could by force of the appellant's own sworn testimony. In that sense, the appellant argued, a fictitious bystander might reasonably conclude that he had been deprived of a forensic advantage which the judge had accorded to the respondent.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
HUGH, GUMMOW AND HAYNE JJ
KIRBY J
When what Anderson J said is considered in its context, and in the light of his subsequent explanation, the argument for the appellant must fail. The judge was not to be understood as intending to express a concluded view on the credibility of either party. In particular, he was not to be understood as intending to express such a view about the credibility of the appellant, who had not yet been called to give evidence. His expectation as to the importance of independent evidence, and documentary material, was understandable[14]. An apprehension that he had formed a concluded view on the credibility of witnesses, and would not bring an open mind to bear when he decided the case, would have been unwarranted and unreasonable.[14]cf Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599 at 603 [16] per Gleeson CJ, Gaudron, Kirby and Hayne JJ. Conclusion The appeal should be dismissed with costs. This is one of three recent appeals in which issues of judicial disqualification have been argued before this Court[15]. It comes from a judgment of the Full Court of the Family Court of Australia ("the Full Court")[16]. I agree that the appeal should be dismissed. What is important about the matter is the explanation for that order.[15]The other two are Ebner v Official Trustee in Bankruptcy and Clenae Pty Ltd v Australia and New Zealand Banking Group Ltd which were heard together on 14 and 15 June 2000 and in which judgment is reserved.[16]Johnson v Johnson unreported, Full Court of the Family Court of Australia, 31 March 1999. Disqualification for prejudgment, classified as a form of apprehended bias on the part of judicial officers and other formal decision-makers ("adjudicators"), has lately attracted the attention of final courts in several countries[17]. It is appropriate to consider the issues in this appeal in that context and to take the occasion to measure the submissions for the parties against the applicable principles of law.[17]Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 ("Auckland Casino"); R v S (RD) [1997] 3 SCR 484; President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147; R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 2) [2000] 1 AC 119; Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 ("Locabail"). Upon one of the questions raised by this appeal, differing views have, in the past, been expressed in Australia[18]. That question concerns the extent of knowledge of the issues in the particular case, and of legal practices and procedures, that the appellate court will attribute to the fictitious bystander whose judgment is invoked as the touchstone for reaching a conclusion that apprehended prejudgment exists[19].[18]See eg S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 ("S & M Motors"); Australian National Industries Ltd v Spedley Securities Ltd (In Liq) (1992) 26 NSWLR 411 ("Spedley Securities"); R v Masters (1992) 26 NSWLR 450.[19]R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; R v Watson; Ex parte Armstrong (1976) 136 CLR 248 ("Watson"); Re The Queen and His Honour Judge Leckie; Ex parte Felman (1977) 52 ALJR 155; 18 ALR 93; Webb v The Queen (1994) 181 CLR 41 at 47 ("Webb"). The facts and common ground
Ratio Decidendi
Legal Principle Established
Established by:
HUGH, GUMMOW AND HAYNE JJ,
KIRBY J