Johnson v Johnson

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P60 of 1999

B e t w e e n -
BRIAN GODFREY JOHNSON
Appellant
and
KATHLEEN JOHNSON
Respondent

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 24 MAY 2000, AT 12.36 PM

MR G. GRIFFITH, QC: If your Honours please, I appear with DR R.S. INGLEBY for the appellant. (instructed by Lewis, Blyth & Hooper)

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR K.R. WILSON, for the respondent. (instructed by Kim Wilson & Co)

GLEESON CJ: Yes, Mr Jackson. Yes, Mr Griffith.

MR GRIFFITH: Your Honours, on the application for special leave there were observations by their Honours Justice Gaudron and Justice Hayne that a slim volume, one volume ‑ ‑ ‑

KIRBY J: One volume, singular.

MR GRIFFITH: Yes, your Honour. Your Honour, one difficulty about one volume is that circumstances of the judgment both of the primary judge and of the Full Court are very long judgments but, your Honours, could I indicate that the relevant part of the three volumes which constitute the appeal book so far as the appellant is concerned are confined to pages 18 to 61, page 512, pages 723 to 731, especially 730 and 731, the judgment of the Full Court dealing with the issue of fact and, your Honours, the other parts constitute really what might be regarded as background material, the judgment of the primary judge, page 62 to page 478 and of the Full Court, page 609 to 737.

Your Honour, by way of explanation of the seven further volumes, there were protracted representations made on behalf of the respondent to the Registrar which, as we understand it, were based on the assertion that it was necessary to deal with the consideration of the entire circumstances to answer the question of whether there was disqualifying apprehended bias and over our protests, your Honour, the unusual procedure was adopted that some seven volumes, 1406 pages, were prepared, your Honour, in response to detailed submissions by the respondent’s counsel and instructing solicitors as to the relevance of those pages. Somewhat to our surprise, your Honour, the written submissions of the respondent seem to us, on our account, to refer to, we believe, eight additional pages to those which we refer to as in our appeal book.

GLEESON CJ: Yes. Well, we will take this matter up with Mr Jackson in due course.

MR GRIFFITH: Yes, your Honour, but that is the explanation of the displacement of the material.

Your Honours, in essence we submit there are two short points here. The first is whether or not there is, on the circumstances of the statement of 20 March, a statement which constitutes a basis for apprehended bias from the viewpoint of the reasonable bystander, your Honours.

In our submission, the answer to that is plainly, yes, and as we understand it, your Honour, the second issue was to whether or not, on that characterisation being made, it is a matter which firstly, at law, in the circumstances of this characterisation of apprehended bias of taking a preconception on the issue of credit of both parties, we say particularly a preconception which affects the husband in respect of the issues involved, there was a capacity to correct that disqualifying apprehended bias.

A subsidiary issue would be, your Honours, and this is part 3 of our propositions, is whether, if it were a matter which is capable of being corrected in the particular circumstances, what was stated by the judge when the matter was taken before him in argument which did spell out concisely but plainly the relevant principles, there was such correction.

GLEESON CJ: Dr Griffith, I wonder if you could clarify one small matter of fact. Perhaps I am misunderstanding something, but I had an impression that the critical comment or remark that the judge made referred to, or was made in the context of, some kind of application.

MR GRIFFITH: No, your Honour, it was not; it was made by reference to the particular circumstances of 17 March, but his Honour ‑ ‑ ‑

GLEESON CJ: What were those circumstances? What exactly was it that elicited the comment?

MR GRIFFITH: Well, your Honour, probably the appropriate way to deal with that is to go to the particular pages of the transcript. If I could take your Honour to those pages, they appear particularly in the appeal book at page 21.

KIRBY J: This was already well into the trial, was it not?

MR GRIFFITH: It was about 20 days into it but it was at a time where the wife had given her evidence and there were also statements from both parties which, I think it is common ground, were basically assertions that the offshore property was beneficially held for the husband. But so far as her husband is concerned, matters had proceeded merely to the point that some but not all his written statements had been made and he had not at all been examined or had any oral cross-examination on those issues.

GLEESON CJ: What I had in mind when I referred to “application” was that expression at line 48, “I’m not vacating my earlier order;”. That seems to be part of the context in which this remark was made. I did not understand from what I had read what the earlier order was.

MR GRIFFITH: Perhaps it is an opportune time to reconsider the transcript, but it is not something that we entirely understand either. The other difficulty is the prefatory phrase, “Well, let me go back to what I said at the very beginning”, because although the respondent’s submission spells out what they construe as what is the reference made back by his Honour when he says that, it is our submission that whatever was said by his Honour, on those circumstances, and whether ‑ ‑ ‑

GLEESON CJ: I am sorry to harp on this matter of application but at the very first line on page 21 Mr Udorovic refers to asking the judge “to vacate” the earlier order.

MR GRIFFITH: As I understand it, the issue was whether counsel could cross-examine the wife as to reasons why she asserted the offshore ownership.

GLEESON CJ: That is what I am anxious to understand. The remark that you complained of is made in a paragraph that begins with a reference to something that was said at the very beginning and ends with a reference to an earlier order and it appears to be made in response to some remarks which included a reference by counsel to asking or applying to the judge to vacate some earlier order. Perhaps you could let us know when we resume what exactly that application by counsel was and what was the relevance of what was said earlier and the earlier order to the remark that you rely.

MR GRIFFITH: We will do our best to answer that specific question, your Honour.

GLEESON CJ: We will adjourn now and we will resume at 2 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.03 PM:

GLEESON CJ: Yes, Dr Griffith.

MR GRIFFITH: May I take your Honours back to about 10 am on 19 March 1997? The curtain opens, your Honours, in volume V of the respondent’s supplementary appeal book at page 881.

KIRBY J: You are not going to let that point go, are you? It is only a matter of costs.

MR GRIFFITH: Your Honour, actually I was not having a dig at my learned friend because we have the ‑ ‑ ‑

KIRBY J: This is what it is called.

MR GRIFFITH: No, we have the entire day’s transcript which does answer his Honour the Chief Justice’s question so it is the one part, your Honour, where it is useful to have it here. It saved us copying it over lunch.

CALLINAN J: What page?

MR GRIFFITH: Page 881, your Honour. Your Honour, John Patrick Tarrant was called as a witness by the wife. He was a former employee of Mr Johnson, the husband, and, your Honours, he was called to give evidence to the interest of the wife and contrary to the interest of the husband.

One of the matters he was asked about was matters as to the knowledge of Mr Johnson, particularly the relationship between two companies with which Mr Johnson was involved and the witness sought to answer that question by reference to a transcript he had read whilst an employee of an examination of Mr Johnson under Part 3 Division 2 of the Australian Security and Investments Commission Act 1989.

Your Honours, there was objection taken to the witness giving evidence on the basis of reading that, having read the transcript, because of the circumstance that under the provisions of that Division 2 of Part 3, where there is such an examination, although a copy of the transcript is given to the person examined, under section 26 that may be subject to some conditions including, I am instructed, a condition that an undertaking be given that the document not be disclosed to any other person, at least without the consent of the Commission.

So there was an issue as to whether or not that transcript could be referred to at all. Concurrently with that attempt to get the information, there had been a subpoena served on the Commission which eventually, but after 19 March 1997, resulted in the transcript being produced to the judge, the entire transcript, and the judge, having read the transcript, identified relevant parts which the Commission then were content to become available as part of the documents produced and, therefore, available for the purposes of the case. On 19 March that transcript had not been made available.

The point was taken in the cross-examination, by counsel on behalf of the husband, that the witness should not be able to answer questions as to what was the belief of - his understanding of Mr Johnson’s state of knowledge, as I am instructed, your Honour, because that belief arose from the witness having read that transcript and your Honours will see at page 911 of the transcript, Mr Wilson, counsel for the wife, indicated that he wanted an opportunity and a ruling to consider what was the situation with respect to that transcript. Indeed, your Honours, Mr Wilson asked for an adjournment so he could consider the position.

Your Honours, on the issue of whether or not the examination transcript, which was in Mr Johnson’s custody, should be made available as a discoverable document, his Honour, the trial judge, at page 914 and 915, made a ruling which, your Honour, one sees particularly on page 914 at about point 6 and for the rest of the page, that the documents, including the transcript, should be regarded as “discoverable” relevant “documents”, to be discovered by the husband in the proceedings and, your Honour, when one sees on the foot of page 914, the statement of his Honour that, “I will make a ruling”, that, your Honours, we understand it, is the order which was referred to at the very end of the objected statement of 19 March which, of course, appears on page 21 of volume 1 of the appeal books, and also is replicated in this part of the transcript in the respondent’s volume.

HAYNE J: It is an order that the document be listed as a discoverable document?

MR GRIFFITH: That is right, your Honour.

HAYNE J: Not an order about its production but its listing?

MR GRIFFITH: Yes, your Honour, that is as we understand.

HAYNE J: Yes.

MR GRIFFITH: Now, your Honour, because of the uncertainty about it, your Honours, at page 927, after making some complaint on the page before to the effect, if I can summarise, your Honour, that the protest by the husband’s counsel was there seemed to be a lot of new issues being opened up to the point that it was not possible to settle final affidavits from Mr Johnson to deal with it, and that protest seems to be made in various parts of the transcript, your Honour, including at page 926 and also in the paragraph above the ruling which was made on page 930, the objected statement, in the context, your Honours, that immediately before that at page 925 Mr Wilson, counsel for the wife, maintained an application he “be entitled to have the proceedings adjourned until morning” to consider the position with respect to the ASC documents. In the end, your Honour, he, in fact, got the adjournment because by the time the matters had been disposed of the day was over in any event.

GLEESON CJ: So when, on the bottom of page 21, the judge said, “I’m not vacating my earlier order”, he meant he is not vacating the order to the effect that the ASIC transcripts had to be listed as discoverable documents?

MR GRIFFITH: Yes, your Honour.

HAYNE J: And that in response to counsel for the husband’s submission commencing at 926 of the supplementary book complaining about the breadth of issues that was now in issue and the judge’s response at 927 reminding counsel for the husband that he himself had acknowledged new documents and issues would emerge.

MR GRIFFITH: Yes, your Honour. At the top of 927 counsel for the husband really repeated a submission that the earlier ruling that I have referred to on page 914 be abandoned – at the top of page 927. So those were the issues for discussion that day. But it would seem that the statement made on page 930, which is also on page 21 of volume I of the appeal books, the objected statement by his Honour, really follows the totality of the exchanges, including the matters which the husband’s counsel repeated to in various ways, namely the fact that there seemed to be so many opened issues, as he referred to it, the proceedings were more like a Royal Commission.

HAYNE J: But was made in response, particularly, to a ruling by the judge that certain documents should be listed as discoverable documents.

MR GRIFFITH: In that context, your Honour, but with the context of the whole exchanges of the day.

KIRBY J: Would you have had your objection if the judge had made this statement at page 930, which is the statement that you complain about, after your client had given his evidence in‑chief? Is it the fact that it was said before he, unlike the wife, had given his evidence in‑chief that you say gives rise to the reasonable apprehension?

MR GRIFFITH: Your Honour, we would say after all the evidence. It was a 66-day trial, so we would say there should not be a final view taken which we say this indicates of saying, “I will rely”.

KIRBY J: It is not final; it is “principally”, he says.

MR GRIFFITH: “I will”, your Honour, “principally”. That is not a statement that credit must be considered in the context of all the evidence and “my assessment of the husband and of the wife and to the credit of the other witnesses”. What we object to is the statement making it plain that there is a predetermined position before the husband has said a word.

KIRBY J: But is it not really simply stating the obvious? I am sure I have said it several times myself in decisions relating to the so‑called advantage of credit and so on, that nowadays it is preferable and safer for judges to look at the logic of the circumstances, the objective evidence, the documentation, rather than trusting on their capacity to discern truth from falsehood on – he has hidden it away, he has not hidden it away.

MR GRIFFITH: Your Honour, in the context there are mere assertions put by the wife that all these transactions with Hedges were beneficially transactions for the husband producing assets which were the husband’s assets. Self-evidently the totality of the matters to be considered are what the husband has to say about it, virtually in the written statements which had been read at that stage, but there were further written statements to be filed, particularly as to issues as they emerged; secondly, to assess the credit of that witness when he was examined and cross‑examined as part of the totality of his evidence. Our submission is to have, before he said a word, a statement that:

I will rely, principally, on witnesses other than –

we say the husband –

the parties in this matter – and documents – to determine where the truth lies –

Your Honour, what is happening is that there has been a demotion – that is the best way of describing, in our submission – of the credit of the husband to the extent that either the husband, if he be regarded as a reasonable bystander or someone sitting at the back of the court, will say it seems that whatever he has to say is not going to have any particular weight with the judge because the judge has made it quite clear that he will rely principally on other witnesses.

GLEESON CJ: Would it have made a difference if all the judge had said was, “I decline to withdraw or limit my earlier ruling requiring a wider discovery of documents because I have seen enough of this case already to know that, ultimately, it’s the documentary material that is going to be of the greatest assistance to me in deciding what the outcome should be.”?

MR GRIFFITH: Your Honour, one issue was that it was a legal issue of the ASC Act and the judge said specifically, your Honour, in this part of the transcript that he had no knowledge of the terms of the Act. He said he would go off and read it and the point made, your Honour, in submissions is that it was inappropriate to order production when, on the face of things, that was contrary to the statutory requirements which applied with respect to the documents which were in the possession of the husband. That was really a legal point.

GLEESON CJ: But this was not made by way of a commentary on the credit of your client who had not yet given evidence. It was made by way of a commentary on the need for a wide discovery of documents.

MR GRIFFITH: Your Honour, it may be unobjectionable to say, “In this case it is important and I will have regard to ensuring that all relevant documents are available because of the assistance they will give in making the findings which I have to make” but our submission, your Honours, is that the manner of expression is a departure from what are referred to by my learned friends in their submissions as the earlier statements in which his Honour may be taken as having referred back to where, in effect, his Honour might be regarded as having made some statements which were unexceptionable statements of that order.

Your Honour, objection was not taken to them even though perhaps the statement which I think is replicated in paragraph 6 of my learned friend’s submissions might be moving towards the line. It is accepted, your Honours, that we must show a strong case to indicate that there is a basis for apprehended bias, applying the reasonable bystander test.

What we say, your Honours, occurred here and, in effect, it came out of left field but nonetheless it was stated to say, “Here we are about to embark on the issue of oral evidence from the husband who is central figure in all these transactions, and the statement is made not that, “I will assess his credit and his evidence, having regard to all the evidence, including documentary evidence and independent evidence from the third parties”, but the statement is made, “I will rely, principally, on witnesses other than the parties in this matter” and that in a context, your Honours, where the evidence of the wife as to these matters is, I think I can submit, on common ground, based on mere assertion.

HAYNE J: Had Hedges been called by this stage?

MR GRIFFITH: No, your Honour.

HAYNE J: That was a series of events that occurred later, that he was called and did not stay for cross-examination.

MR GRIFFITH: All that occurred later – he left town, yes, your Honour.

HAYNE J: Yes.

MR GRIFFITH: But, your Honour, whatever effect was to be given, whatever inferences may arise from that, the objected statement is to say that a bystander at this point will see that his Honour’s consideration had moved beyond that which was permissible, namely to say, “I will have regard to the totality of the evidence and have, if you like, particular regard to evidence of witnesses of other parties, other than the parties, and to documentary evidence”, to say, your Honour, “I will rely principally on this”, and what we say, your Honour, is that a bystander would say, “Well, that puts both parties but, particularly, so far as detriment is concerned, the husband, in the position that his position, so far as his evidence is concerned, is one whereby the weight to be given, if any, to his evidence, is demoted to the point that reasonably one could apprehend bias”. We submit, your Honour, this comes squarely within the analysis of the four members of this Court in Watson.

KIRBY J: If this is the rule that you are arguing for, you are making judges really subject to strict rules of being tongue-tied in their interaction with the Bench. In one sense, you could read this as saying, “Well, I have heard the wife, and as far as I am concerned I am going to rely on the documentary material”. It is, in a sense, a commentary on her testimony as well as on the help that he feels he may be getting out of your client having read the affidavits.

MR GRIFFITH: With respect, your Honour, this is put as in the context that he is dealing with material concerning the husband, not with the wife.

KIRBY J: I realise that, but it is after the wife has given her oral testimony, and he says, “I am going to principally rely on the documentary material”. We cannot lay down a rule that means judges always have to be super careful, and they do not say anything that is going to bring them up here with an allegation that they are biased.

MR GRIFFITH: With respect, your Honour, with respect to the differences of the approach of Justice Jacobs in Watson that silence was the counsel of wisdom for judges, and the view of three of their Honours, at least, in Vakauta, that that would be an inappropriate mechanism for the debate in the judicial process, one must firmly express the view that the view of three of their Honours of this Court is the appropriate approach. We do not cavil for a moment, your Honour, at the facility that there should be exchanges and, perhaps, expressions of points of difficulty, or even tentative views.

No objection should be taken to that, your Honour. No objection was taken, even though it might be that one could say one or two words were used less than felicitously, in the earlier exchanges that were referred upon by my learned friend. Your Honour, it is put that they are merely to state what is the usual position. Well, accepting, your Honour, with a difference in verbiage, that may be so, our submission is that is to emphasise the departure made in this statement, and really from left field, we say. It is one where the bystander sitting in the back would say, “Well, where is this coming from? What perception do I have about this?”

KIRBY J: If a bystander had been patient enough to wait for 20 days for these words and six lines to be uttered, one can perhaps be forgiven for thinking a bystander is going to say, “Well, the judge has said the obvious. This is a case where it is going to rely on the documents because you are going to have the wife asserting and the husband denying.”

MR GRIFFITH: Well, with respect, you would have the authority of a strong Bench of this Court in Watson against him if he thought that and what we say, your Honour, is that it is the expression “the settled view” is that the judge is not at this stage entitled to express with such firmness his position. It is something he might do in the final processes of decision making. Could I take your Honours to ‑ ‑ ‑

McHUGH J: Let me read you a passage. Would you say this judge was guilty of reasonable apprehension of bias?

This is how I go about the business of finding facts. I start from the undisputed facts which both sides accept. I add to them such other facts as seem very likely to be true.

I will leave out some comments:

I judge a witness to be unreliable if his evidence is in any serious respect inconsistent with those undisputed or indisputable facts or, of course, if he contradicts himself on important points. I rely as little as possible on such deceptive matters as his demeanour and I have done my best to separate the true from the false by these more or less objective tests. I say which story seems to me the more probable, the plaintiff’s or the defendants.

Now, does that indicate a reasonable apprehension of bias?

MR GRIFFITH: Well, your Honour, I do not know whether it is Justice Cardozo’s, Frankfurter or whatever, but, your Honour, of course, that is an articulation of the judicial process.

McHUGH J: Well, that is a statement made by Justice MacKenna in a lecture at University College which Lord Devlin in The Judge said he adopted in its entirety ‑ ‑ ‑

MR GRIFFITH: I will do the same, your Honour.

McHUGH J: ‑ ‑ ‑ as the proper approach.

MR GRIFFITH: Yes. I am sorry, I did not know the identification but it all seems perfectly appropriate and correct.

McHUGH J: But supposing this judge had said, “Well, I am going to start with the documents and I will judge the witness’ credit in terms of their consistency or inconsistency with those documents.”

GLEESON CJ: As distinct from the Pinocchio theory which proceeds on the assumption that when people are not telling the truth their nose gets longer.

MR GRIFFITH: Yes, precisely, your Honour.

KIRBY J: That is why I asked this question about the timing, because it does seem to me that in a sense your greatest source of complaint is that the judge had heard the wife and instead of, as it were, sitting there and hearing you and then saying something like this, he jumps in even before you have come to the witness‑box, to the book, given no evidence, no oral chance to even the scales and he comes in at that point. I think ‑ ‑ ‑

MR GRIFFITH: Yes. With respect, your Honour, the question of the wife is really irrelevant because she was making assertion and it seems that it was common ground, and our learned friends submissions make this point, that they were mere assertions, that they are not evidence.

HAYNE J: And that identifies, does it not, that the issue that generated this whole debate was, were certain transactions sham or paper and the judge says, “I will start with the documents.”

MR GRIFFITH: Yes. That is a ‑ ‑ ‑

HAYNE J: How does that harm your client and suggest that your client, who is propounding these documents as genuine transactions, is suddenly having his credit downgraded when a judge says, “I will start with the documents”?

MR GRIFFITH: Your Honour, he is not saying that he will start with the documents. He is saying, “I will finish with them.” He says, with respect, “I will rely principally on the witnesses, other than the parties to this matter.” And, your Honours, to make it quite plain, we say the answer to this is found on page 264 and 265 of 136 CLR and that makes the point on page 264, in more appropriate language than I can express, that it is a matter of timing and, your Honours, looking at page 264, there is a reference in the first full paragraph to the acceptable approach that:

During the course of argument a judge will often follow the common, and sometimes necessary, course of formulating propositions for the purpose of enabling their correctness to be tested, and as a general rule anything that a judge says in the course of argument will be merely tentative and exploratory ‑

well, that is the everyday stuff of debate at trials and also in this Court –

However, a fair‑minded observer would have been justified in thinking that the remarks of the learned trial judge in the present case were not of that description. He expressly said that he thought it might assist counsel in handling the matter to know that he would not accept the evidence of either party – or even an admission – unless it were corroborated. He repeated, and gave reasons for, his rejection of the credit of both parties. He adhered to his statements even after it had been submitted that he should decline to hear the proceedings further. No doubt he had read and considered the affidavits already filed –

and that was the case here –

but he had not seen either party in the witness box, and the matters which led him to hold that he could not believe then had not been fully examined either in evidence or in argument. It hardly needs to be said that he was not at that stage entitled to form the settled view that neither party was worthy of credit –

and then we have a disjunction –

or to impose on them both the extra‑legal requirement that their evidence must be corroborated, but a reasonable observer would have been justified in thinking that he had done so.

So that, whilst it might be appropriate, your Honours, to say, “Well, we will have regard to the documents”, what we say is that it was inappropriate for the judge to indicate that it was to be the documents to which the recourse were to be held for his findings. “I will rely principally”, not that “I will ‑ ‑ ‑

GAUDRON J: Particularly of other witnesses and the documents.

MR GRIFFITH: And the other witnesses, yes. Your Honours, what we say is, the husband was entitled to have his evidence heard, without the judge expressing a view that, whatever that evidence was, however much it went to confirm and corroborate the documents and the evidence of other witnesses, the finding would be made principally on matters extraneous to the husband’s written statements and his oral evidence given in the face of the court. So that, your Honours, we would say, doing one’s best with the language - and the reasonable bystander must, we would say with respect, construe the language used and not put a gloss on it, as we submit was done by the Full Court in their brief consideration in but four paragraphs in less than one page of their judgment, to say, “Well, doing the best you can, it might be regrettable that he said ‘principally’ but the judge was saying no more than what he said previously and, in fact, he explained what he was saying by what he said next day after the objection was taken. If I may read on, your Honours, we rely on this particularly also:

As the cases show, there are some matters on which a judge may have preconceived opinions, and yet be qualified to sit, but speaking generally the credit of an essential witness, where the case may turn on credibility, is not one of them.

And we submit, your Honours, that self-evidently was the issue here.

KIRBY J: But could this case possibly - could a case of this size, this complexity, this dimension, 60 days, turn principally on credibility? No, it turned on the documentation, on the objective evidence.

MR GRIFFITH: Your Honour, if one puts on one side all the evidence given by the husband, who was a principal player, well then that is the case, but what we say, your Honour, is that part of the totality of the evidence, indeed here the central part, is the affirmative evidence given by the husband, both in writing and orally, and one cannot say the case can be stated by the judge to turn on these extraneous matters; he must, your Honour, assess all matters.

GLEESON CJ: Dr Griffith, where do we find what the judge said at the very beginning, which he was professing to repeat here?

MR GRIFFITH: Your Honour, it would seem to be those statements which are identified by my learned friends in the opening part of their written submissions. I think that is the most convenient summary of them, and, your Honour, could we indicate that although it might be put that the words in paragraph 6 are going a little bit too far to indicate ‑ ‑ ‑

GLEESON CJ: Page 645, I gather.

MR GRIFFITH: Yes, that is one; there are various statements, your Honour. 24 and 25 February, which is identified in that part; a further statement on 12 March was identified in paragraph 10.

GLEESON CJ: Well, where he says on page 645:

More crucial is what other people know and what documents show.

That is very close to what is said again on page 21, is it not?

MR GRIFFITH: Your Honour, it is a question of degree. One can only make an application on the basis that it is a matter where there has to be strong grounds for the application and it is a matter of judgment as to where one takes exceptions, sufficient to take the exceptional course, of asking a judge to disqualify himself on the basis of apprehended bias and, your Honour, what we submit is that it is a matter of judgment. One cannot be precious about this, and indeed, your Honours, members of this Court have pointed out in Vakauta, at page 571, 167 CLR, that is a….defined line and, your Honour, at page 70 expressed, which is to be assessed in the real world of actual litigation in the judgment of Justices Brennan, Deane and Gaudron.

GLEESON CJ: Could I ask you a question of principle, Dr Griffiths? In making that judgment, which is a judgment about what a reasonable bystander would apprehend, what significance do you assume a reasonable bystander will give to the judicial oath?

MR GRIFFITH: Perhaps he does not know about it, your Honour.

GLEESON CJ: Well, that is the question. Are you to assume the reasonable bystander knows about it and, if you assume the reasonable bystander does know about it, how does that play a part, if any?

MR GRIFFITH: With respect, your Honour, this is a debate long worked out in this Court. It is a question of do you adopt the English approach, and it says “reasonable likelihood”, or do you adopt the approach which is adopted in Australia to say, “Of course there can never by any doubt about the integrity or absence of bias of a judge”? One sees that strongly, for example, in Livesey expressed. It is a question always of what would the person in the back row who is not a third counsel appearing in the matter regard - as having regard to what that person hears?

GLEESON CJ: Then let me take it step by step. Do you or do you not treat that person as knowing that the judge has taken an oath?

MR GRIFFITH: I think that might be accepted, your Honour.

GLEESON CJ: That you do.

MR GRIFFITH: Well, we could accept that, your Honour. But it is accepted that a judge is a person of integrity there to do that judge’s competent discharge of the duties to determine the matter without bias or preconception. That much may be assumed, your Honour. That is within the various expressions of members of this Court in the few cases dealing with these issues.

GLEESON CJ: Bearing that in mind, and bearing in mind presumably that the reasonable bystander would also know or be able to find out what the judge had said at the beginning, why would you treat this statement as anything more than a repetition of the proposition that more crucial is what other people know and what documents show?

MR GRIFFITH: Because, your Honour, it is not a statement of saying, well, particular regard must be had to these matters of external confirmation. It is the affirmative statement that says, “I will rely principally on witnesses”, rather than, “I will have particular regard to within the totality of the evidence”. With respect, we would say to contend that there is not such a statement is really to confound the expression of four members of the Court in Watson as to what is the appropriate approach.

GLEESON CJ: Would it have been perfectly acceptable if the judge had said, “I expect that it is likely that ultimately I will have to rely principally”, et cetera? Could anybody take any possible objection to that?

MR GRIFFITH: They could, your Honour, but bear in mind it is a strong test, but that could be objectionable, yes.

KIRBY J: If it is a strong test, then you are not looking at it from the point of view of somebody who is ultra sensitive.

MR GRIFFITH: Of course not, your Honour.

KIRBY J: It seems to me that is the criterion you are applying.

MR GRIFFITH: I do not mind Lord Denning’s approach. Can someone say, “Well, this matter will be decided without bias”. Unless you have that confidence, then the test satisfies.

KIRBY J: I think what Lord Denning said was that they would say the judge is biased. Who would say the judge is biased here after 20 days if this statement is made?

MR GRIFFITH: Your Honour, can I say something about the 20 days? We say the requirement is to take the objection when it may be maintained, otherwise you are taken to have waived your position.

KIRBY J: I am not complaining about the promptness with which you took your objection. That was entirely proper.

MR GRIFFITH: What we say, your Honour, is the fact that having taken it and, in our submission, the judge having got it wrong, the fact that it then went on for 66 days should not in the slightest way influence the inquiry as to whether on that day there was a basis for apprehended bias. What we say here is that when we look at the relevant circumstances at that day, including the statements that had gone before, you saw a statement which on any construction, and contrary to what is said by the Full Court, can only be read on the basis that without hearing the husband other than having read his statements, there has been a demotion of the consideration and the weight which is to be given to his evidence by reference to the judge expressing a predetermination to say “I will rely principally on everything else”.

McHUGH J: But the critical issue is whether the reasonable bystander would think at the end of the day the judge would still maintain that view.

MR GRIFFITH: At the end of that day, your Honour, 19 March.

McHUGH J: No, not the end of the day, at the end of the case.

MR GRIFFITH: We say that the end of the ‑ ‑ ‑

McHUGH J: This notion that because a judge makes a remark, “That is the end of the matter”, needs to be dispelled as far as I am concerned.

MR GRIFFITH: Your Honour, what we say ‑ ‑ ‑

McHUGH J: It must be the effect on the judgment.

MR GRIFFITH: Your Honour, you cannot have a “wait and see” to see at the end of 66 days whether it has or it has not.

McHUGH J: No, you do not have to but the question is: would a reasonable bystander think that having regard to the remark the judge made, that judge will not change that view come what may in the evidence? Surely a reasonable bystander in the present case would think to himself: “If the husband got into the witness box and was an extraordinarily impressive witness, I am sure the judge would rely on his evidence”.

MR GRIFFITH: Your Honour, why should he think that, with respect?

McHUGH J: Well, because he has not seen the witness. It is 20 days, he has seen conflicting statements.

KIRBY J: And he has used the adverb “principally”.

MR GRIFFITH: The question of the doctors are referred to by Justice Hunt. It may be that he would open his mind to them in a particular case.

McHUGH J: What caused this Court to set aside the judgment in Vakauta was the terms of the judgment of Justice Hunt.

MR GRIFFITH: Because, your Honour, the Court took the view that there had been waiver by not taking the point. What we say is if you are obliged to take the point because otherwise you would deny the judge an opportunity either of finding the bias so as to avoid unnecessary waste of judicial resources or if it be the case to give an opportunity to remedy the situation if, for example, there has not been an opportunity to be heard, the requirement is you must take the point then. Our submission is it must follow from that that the relevant inquiry is made at that time as to whether at that moment there is an exhibition of an approach by the judge which crosses that ill‑defined line of what would give rise to a reasonable apprehension of bias. What we say is that for both the husband – and that is sufficient. I have not taken your Honours yet to the last paragraph on page 265 in Watson.

The reasonable bystander would say, “Well, it doesn’t matter very much what this husband says in court because the judge has indicated that he will rely principally on everything else”, not that he may, putting all things to account or, if he finds that the husband is the most credible of witnesses possibly, that might be in disregard of one of the statements your Honour read out to me. But what we submit is that the bystander at this point would say, “As far as one can see now, the judge is taking the view that he will not pay regard to the evidence of the husband which is entitled to be regarded as evidence in the entire matter to be dealt with as appropriately by reference to the entire circumstances”.

GLEESON CJ: Dr Griffith, what are the words that were omitted after the word “beginning” in this passage?

MR GRIFFITH: I am sorry, which passage is this, your Honour?

GLEESON CJ: The bottom of page 21 line 44.

MR GRIFFITH: Your Honour, one cannot say that anything was omitted. Perhaps it is punctuation instead of a colon. That is the transcript, your Honour. We cannot ‑ ‑ ‑

GLEESON CJ: We know for a start, do we not, that there is one word omitted after “Well”.

MR GRIFFITH: Yes, your Honour.

GLEESON CJ: Presumably it is the word “let” or something like that.

MR GRIFFITH: Yes.

GLEESON CJ: Suppose, for example, that what he had said was, “Let me go back to what I said at the very beginning. It is entirely possible that at the end of the day I will be in a position where I will rely” et cetera.

MR GRIFFITH: Your Honour, then the statement would be a different statement.

GLEESON CJ: But there would be no possible exception that could be taken to that?

MR GRIFFITH: There may be some criticism, your Honour, but it may well not be across that ill‑defined line. One has to have a clear case.

GLEESON CJ: Is this argument being conducted on the assumption that the words that are printed on page 21 represent the whole of what the judge said?

MR GRIFFITH: It is all we have, your Honour.

KIRBY J: This is a full transcript?

MR GRIFFITH: Yes, it is.

KIRBY J: This is not a summary?

MR GRIFFITH: And neither side have asked for a correction of it, your Honour.

GLEESON CJ: Although we do know that in, at least, one respect the transcript is inaccurate.

MR GRIFFITH: It is the old issue, your Honour. The transcripts in this Court sometimes, despite the very high accuracy, because of my tendency to mumble, which is entirely my responsibility, are sometimes not correct but we do not write in and correct them, your Honour. One gets it ‑ ‑ ‑

GLEESON CJ: No, but they sometimes record judges expressing the tendency of their thinking.

KIRBY J: Ever so tentatively.

MR GRIFFITH: Your Honour, it is a delight to appear before a judge who does so expose or she so exposes his or her views. A quiet court, your Honour, this is what happened in the International Court of Justice, it is horrific.

GLEESON CJ: Why should not judges in exchanges with counsel be treated as, prima facie, doing no more than expressing the tendency of their minds?

MR GRIFFITH: Your Honour, one still must have regard, in the reasonable bystander test, to not what counsel in the front row is thinking but what the person in the back thinks.

GUMMOW J: That is the problem.

MR GRIFFITH: Yes.

GUMMOW J: Who is this reasonable bystander? Somebody who listens to talkback radio and then comes to court?

MR GRIFFITH: Your Honour, the court have tried to define him. He is not practising counsel. That much is clear.

GUMMOW J: Or is it a serious‑minded citizen with some basic knowledge of civics?

MR GRIFFITH: He is not appearing in the case.

GUMMOW J: No.

MR GRIFFITH: Yes, your Honour, and, of course, Justice Toohey and other members of the Court have referred to this situation. He is someone, your Honour, who is an informed follower of the events but doing it from the point of view of being an informed listener and doing that person’s best, your Honour, to say well, what is the judge saying here.

GLEESON CJ: He or she is not someone who is shocked to hear a judge interrupting counsel’s argument.

MR GRIFFITH: Your Honour, he would probably be delighted. It is so boring otherwise.

GLEESON CJ: Well no, he or she would understand that this is the way the system works, by way of a dialogue between Bench and Bar.

MR GRIFFITH: Yes. Yes, indeed.

GLEESON CJ: Well then why, as a matter of convention, unless the contrary appears and appears fairly convincingly, should not remarks made by judges in exchanges with counsel be treated as merely tentative expressions of the tendency of their minds?

MR GRIFFITH: Your Honour, that is usually how they are expressed but if they are expressed with the dogmatism, for example, of Justice Hunt, well then, your Honour, consequences follow. If one has a result where there is a prejudgment, your Honour, a preconception – Watson is a good example where the judge says, “Well this is the view I am going to take. I have my mind closed against having regard to the evidence that is going to be given by the parties. They are too close to it.”, then one has crossed the line.

GLEESON CJ: I have to say, Dr Griffith, that this is a long way from the most dogmatic utterance I have ever heard or seen from a judge.

MR GRIFFITH: Well, I suppose we have more dogmatic utterances here than, your Honours, sometimes in trial courts but ‑ ‑ ‑

McHUGH J: That is part of the problem. I have often expressed strong views about things. One reads the papers and has a strong view. Counsel talk you out of it in a very short period ‑ ‑ ‑

MR GRIFFITH: Your Honours, that anecdote of Justice Diplock walking down the Strand, runs into Patrick….., “You look very happy today, my Lord”. “Yes. Something unusual happened.” “What was that?” “For the second time in 25 years I was persuaded by the argument of counsel to change my mind”. We accept those sort of odds, your Honour, particularly on the courts of appeal.

GUMMOW J: That was a display of vanity on the part of Lord Diplock.

MR GRIFFITH: It could be, your Honour, but we work away hoping that perhaps it is our lucky day to get the Court with an open mind. I mean, not with an open mind – I will withdraw ‑ ‑ ‑

HAYNE J: Get out of that one, if you can, Dr Griffith.

MR GRIFFITH: We will strike that one from the transcript, your Honour. We can engage in a dialogue and persuade the Court that there might be something in it.

McHUGH J: I am always telling counsel at Bar functions and other places, their job is to persuade, and the judges can be persuaded. It is not a question of throwing up material, but they can persuade them.

MR GRIFFITH: And it is our delight, your Honour, particularly in this Court, for the Court, when the bell rings, to go for our throat, straight to the issues, that is what makes the pleasure of appearing in this Court. One does not take 66 days to do it. You go straight at it ‑ ‑ ‑

HAYNE J: Does the reasonable bystander know of the issues in the case before the judge?

MR GRIFFITH: He would, your Honour, yes.

HAYNE J: That is, does the reasonable bystander know that one of the important issues was the reality of certain transactions which, on their face, amounted to dispositions of property absolutely, by the husband.

MR GRIFFITH: Yes, your Honour.

HAYNE J: And that those were challenged as being not real and effective transactions.

MR GRIFFITH: Yes, your Honour. They were challenged, your Honour, on the basis of an assertion, so the issue is whether, on the totality of evidence, that affirmative finding to the contrary can be made.

GAUDRON J: If you take it on that approach, Dr Griffith, then it seems that the documents are not going to be of much assistance.

MR GRIFFITH: That could well be the case, your Honour.

GAUDRON J: One does not know what the other witnesses are, but one would have thought the credit of the person entering into the transaction would be crucial.

MR GRIFFITH: Your Honour, if there are sham documents, and let us assume Mr Hedges, who did not come back on the second day, was a rather quick travelling gentleman as well, it may well be, your Honours, at the end of the day, that it is the credit of the husband himself which is determinative.

GLEESON CJ: Dr Griffith, one thing I am not clear about, is a matter of fact. At the stage this remark was made, had there been affidavits or statements of evidence filed by witnesses, including the husband?

MR GRIFFITH: Yes, your Honour.

GLEESON CJ: So, the judge would have read those?

MR GRIFFITH: Yes.

GLEESON CJ: So, the judge would have known, at that stage, what the husband’s case was, as it were.

MR GRIFFITH: There were further statements, but up to that point he would have known what the statements were.

GLEESON CJ: Or to put it slightly differently, the judge would have known how the husband was going to go about seeking to demonstrate that these transactions were not shams.

MR GRIFFITH: Yes, your Honour. It was very similar to the situation in Watson where the judge had read the statements and then expressed a view, “Well, the credit is a non-issue here. I am not going to believe either of them”. It is a similar point that the written statements had been read.

GLEESON CJ: I only asked that question because you could have a case, which I gather is not this case, in which the husband was saying, “It is true that I assigned property of a substantial value to Hedges for no evident consideration”, or the case may be, “But the fact is I owed Hedges a lot of money by reason of some other circumstance, and that explains what happened.”

MR GRIFFITH: That could be a case, but the question here is really at the end of the day is an assertion by the wife that these offshore assets were, in reality, beneficially owned by the husband, something that she makes out? It was put in the basis that it was a necessary inference from all the circumstances and that would justify the conclusions which were eventually made by the judge.

GLEESON CJ: But would not a reasonable bystander want to know this: if the respective cases that were being made out were that the wife was stamping her foot and saying that these transactions were a sham, and the husband was stamping his foot and saying that these transactions were not a sham, and as far as their evidence in-chief went that was all it amounted to, then one consequence might follow?

MR GRIFFITH: That was not the situation here, with respect, your Honour. The wife was asserting there was no evidence to justify it, the husband’s affirmative case was to say that he did not have a beneficial interest in these offshore matters. Some were onshore, too.

GLEESON CJ: That is what I had in mind. As far as the evidence of the parties went, it was assertion and counter assertion.

MR GRIFFITH: No, your Honour, it was assertion and evidence. The husband’s side was evidence. The wife’s side was just asserting, and that is one of the issues which one picks up as referred to in my learned friend’s written submission, that the wife - in as much as the judge said - and some of the issues were, “I will not have regard to mere assertions by the wife. Do not bother cross-examining her on that because they are mere assertions”. There is no complaint about that. But the husband was the one who knew and had the evidence so he, in the circumstances, your Honour, had, in effect, the burden of bringing forward the detailed evidence.

GLEESON CJ: I was going to ask you that. Where does the onus of proof lie in a contest like this?

MR GRIFFITH: In the Family Court, I understand that it perhaps does not lay where it might be in other courts, that once you throw everything together it seems everything is considered and one does not know until judgment what comes out of it. The issue being raised, your Honour, if the husband had not come forward with evidence, one could expect that inference would be made on the basis of the husband who has every opportunity. Indeed, in places the learned judge made a remark, “If there is any statement asserted in the wife’s material which is not answered in detail by the husband, then an inference can be made that the husband accepts it”. So it seems to proceed on that basis. So the husband is put in the position, effectively he has to answer issue by issue, line by line, what is put, even if it is only put on the basis of an assertion. Then it becomes a matter of a conclusion, which he was invited, and often invited by counsel for the wife, to say, “Well, as a matter of necessary inference you should say what the husband says is not so, he was beneficially entitled”. Your Honour, you have 300 or 400 pages of judgment of the trial judgment where he goes through various transactions and, in effect, makes those sorts of findings. The question of onus is not plain.

What is clear is that the central person - and if one assumes that some of the other characters might be offshore of rather uncertain clarity, apart from any documents which may be produced which in themselves would not be conducive one would have supposed of indicating ultimate beneficial onus, at the end of the day, your Honour ‑ ‑ ‑

GUMMOW J: Well, they might be. They might be.

MR GRIFFITH: They may or may not.

GUMMOW J: They might have been subpoenaed from all sorts of ‑ ‑ ‑

MR GRIFFITH: Exactly, your Honour. Well, that is our point. You do not start deciding whether they are not definitely until you have got all the evidence in and we still had another 46 days to go at this stage and he had not heard a word in court from the husband and there was still on that day issues being opened up. Now, one issue, this question of the ASC transcripts, your Honour, my instructions are that when the evidence given by Tarrant as to saying, “Well, I read the transcript and the husband admitted to this connection with two companies.” When the transcript was finally produced the transcript was to the contrary. One does not know. You have to look at all the evidence, but the point as to temporal consideration we say is that referred to by their Honours in page 264 in Watson, you cannot be premature about this, and our complaint is the prematurity.

It may be a statement of this sort suitably expressed in the judgment is merely to expose the judicial process. One part of that will be to say, “Well, having heard the husband, I take the view that I do not accept his credit, therefore, I will not accept his version save when it is corroborated by documents.” That might be one thing which in the circumstances could at the end of the day be justified, but what we say, your Honour, is that the husband is entitled as the person to be affected by such findings to give his evidence in the confidence that the judge ‑ ‑ ‑

GUMMOW J: Well, how does it work in the Family Court? They have what seem to be voluminous affidavits ‑ ‑ ‑

MR GRIFFITH: Well, perhaps it does not sometimes ‑ ‑ ‑

GUMMOW J: ‑ ‑ ‑ filed by the two litigants.

MR GRIFFITH: Yes.

GUMMOW J: They are read. Is that treated as the evidence in‑chief of each deponent?

MR GRIFFITH: No, your Honour. The evidence of Tarrant which started on this day on 19 March ‑ ‑ ‑

GUMMOW J: But the husband’s evidence in‑chief that was already in on affidavit, was it not?

MR GRIFFITH: But, your Honour, Tarrant had ‑ ‑ ‑

GUMMOW J: Is that not the scheme of the Act?

MR GRIFFITH: Tarrant had a statement, your Honour, and yet he was giving evidence all day in‑chief, so that it seems it is all very flexible, your Honour, and particularly in this case where that was a point being made by the various submissions by counsel for the husband. There were new issues being opened up every day every week which were then being chased and more documents being produced, further affidavits, other outside witnesses, and it kept going on through these transactions for 66 days.

CALLINAN J: I often think myself that the requirement that evidence be filed in advance in writing does nothing to shorten hearings. It often prolongs them and it often produces a great deal of confusion and a great deal of material without any probative value or of dubious admissibility as received.

MR GRIFFITH: Well, your Honour is probably correct but that contrary to almost the universal practice of every court.

CALLINAN J: Well, one of the reasons why in this Court we have had some problems in the short time that I have been here about what was in evidence and what was not in evidence and as to the probative value that it had. It is not a practice that I think has necessarily worked very well or achieved the ends that it was supposed to have achieved.

MR GRIFFITH: Yes. The difficulty, your Honour, is that one might lose contact then with the relevant weight of the evidence.

CALLINAN J: That is what happens. I mean, we gave viva voce evidence successfully in courts or it is given successfully in courts for generations, and trials were not necessarily longer then either.

MR GRIFFITH: Your Honour, I was intending rather than repeat it to say chapter and verse we wish to refer the Court to paragraphs 2 and 3 of our written submissions which we say spell out with particularity - our proposition is that firstly the issue of bias is to be determined at the time that it occurred. We refer your Honours to paragraph 2.4 to a recent Canadian authority which would seem to indicate – and we say the conclusion there expressed is appropriate, that once one identifies the bias, it is not something which may be cured.

There may be cases, as Justice Dawson has referred out, if there has been, as in JRL, a lack of opportunity to put your case where that may be remedied, but what we submit is that once the bias is exposed, it is not something to be eradicated by a judge when that is taken up, as it was next day, in perfect conformity with the obligations as expressed by this Court that the matter should be taken up with the judge so either he can see and accept that there is a basis for a reasonable apprehension of bias and thereby disqualify himself or, alternatively, consider whether it is a matter which, if it is capable of being rectified, may be rectified.

GLEESON CJ: Can a judge say on the following day or the following week, “Looking back on the transcript, I notice that I said that. When I said that I overlooked something and, having realised that I overlooked it, I’m able to correct what I said.”?

MR GRIFFITH: Your Honour, that is one point we make in our submissions, that it might be one thing for a judge when it is pointed out to say, “Well, I was quite infelicitous about that”.

GLEESON CJ: No, he says, “I was wrong”.

MR GRIFFITH: Well, say, “I’m wrong about it”, if you like, your Honour, and then act in a way so that the reasonable apprehension of bias then and there – we say it has to happen at once when the application is made, not a week or two later.

GLEESON CJ: Why?

MR GRIFFITH: Because you are obliged to make the application at once, otherwise you have waived it, and the application either should be upheld or denied. You cannot just say, “Well, let’s wait a week or two or another 46 days and see whether or not it’s made out”.

GLEESON CJ: Suppose a judge says something on a Friday afternoon. Everybody goes away and stews on it over the weekend, including the judge. Counsel decides that he will make an application for disqualification on Monday morning and, before he can say anything, the judge says, “I want to correct what I said on Friday night. It was accurately reported but when I said it I overlooked something. I was wrong. I withdraw it or I qualify it in the following way”.

MR GRIFFITH: Your Honour, that may well be perfectly all right and would remove the basis of apprehended bias which might otherwise exist, but our submission here is what the judge did when the matter was taken up – and there was a full submission made by reference to all the authorities to demonstrate the basis of apprehended bias – what he sought to do is not to take that course but to seek to recast the words he said the day before to have an entirely different meaning.

GLEESON CJ: If the judge took the course that I just described to you before counsel made his application for disqualification, why would it make a difference if the judge took the same course after hearing an application for disqualification and said, “You have pointed out to me in the course of your application for disqualification that I made a mistake. I overlooked something.”?

MR GRIFFITH: Yes, that may, in some circumstances, depending what the point was, be appropriate to say, well, there is, considering it then and there when the ruling has to be made, no continuing basis for apprehended bias.

GLEESON CJ: Then it is curable.

MR GRIFFITH: Well, it may be. In the case of Livesey, your Honour, it would not be curable.

GLEESON CJ: Well, whether or not it is curable depends upon the particular facts and circumstances of the case.

MR GRIFFITH: Of course, your Honour, it depends on what the issue – if it not reasonable opportunity to make a case, as in Re JRL, that may be curable. There may be issues, as Justice Dawson pointed out, your Honour, where there is a question of preconception where it might be put, the matter has been expressed in a way that the reasonable bystander would be left feeling, well, you are not going to get an unbiased consideration of your case from this judge, and it is not an assumption, your Honour, that it will be biased because, in effect, the assumption made is that no judge will be biased; it is a question of, what will this bystander think about it, and, your Honour, it must depend upon the circumstances.

What we say here, your Honour, is that the point was made, totally consistent with the authorities, your Honour, that the remarks did cross that uncertain line. For the judge to make a very short response, redefining what he said, is merely to confirm rather than to deny the bias. In effect, it is similar to the situation in Watson, when it is taken up, the judge’s remarks go to exacerbate rather than to remove, but we accept, your Honour, that is the time for the inquiry, but we do deny that anything which occurs afterwards can be relied upon to abate what is the perceived position as at the time when the objection is taken. So that you cannot do what, in effect, the Full Court have done, to say, well, when you look at the judgment, when you look at the entirety of the circumstances, then what the judge was saying was merely that he would give particular weight to evidence of other witnesses and the documents.

McHUGH J: But you do concede, do you, that if objection is taken, the judge may then make a statement which indicates a state of affairs where there could be no reasonable apprehension of bias; do you concede that?

MR GRIFFITH: Your Honour, it might depend what is the point of bias. For example, if he said, well, on one day, to use off shore authority, you can never trust niggers in this court, it may well be, your Honour, that is absolutely irrevocable even though he has changed his mind by Monday morning. It depends, it must depend.

McHUGH J: Well, in Vakauta v Kelly Justices Brennan, Deane and Gaudron at 167 CLR at 572 said:

By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing.

MR GRIFFITH: Your Honour read the disjunctive rather more softly, but we accept a dichotomy, your Honour, but what we say here is that an objection was taken in almost perfect form, with respect, by counsel. All the authorities were taken to the judge, and what did he do? He did not do anything to correct the wrong impression. He said, in effect, I did not say that; what I said was something else and, in effect, your Honour, the Full Court went along with that. They, in fact, referred to that, your Honour, as explaining what he said the day before, but it did not explain it, your Honour; what it did is, in effect, it repudiated what he said before as something that he had said.

McHUGH J: Yes, but what he said subsequently may indicate what were his real thoughts about the matter, notwithstanding the way they may have come out at 9.30.

MR GRIFFITH: Your Honour, this is a point that Justice Toohey has made, whether, as an element of correction, you have to accept that you have created a problem, and what we say, your Honour, is that an element of repentance is to confess the sin. If you do not identify that you have done the wrong thing, it is very hard for you to correct it. Here, your Honour, we have, in effect, the statement of 20 March, however read, is a departure, is a denial, of what is the obvious fair construction to be made by that bystander as to the words made the day before.

So that, whilst we would accept, your Honour, that there may be, in the frankness of exchanges, in some circumstances, this Court has not yet said whether there are some circumstances where it is ineradicable. Certainly, Justice Dawson has referred to the fact that preconception may be one of those circumstances. But, your Honour, we accept ‑ ‑ ‑

McHUGH J: Yes, but Justice Dawson, in particular, in Vakauta, emphasised it was not a question of preconception but whether the judge’s preconception was of such a kind, or was so expressed, as to lead a reasonable person to apprehend that he was unable to approach the case with impartiality.

MR GRIFFITH: Your Honour, that really gets us back to the paragraph I have taken the Court to at page 264 in Watson. What we say is that, “at that stage”, to use their phrase, “for his Honour to have expressed his view, ‘I will rely, principally’, your Honour, is to go too far.” He is not entitled, at that stage. He can do it in the judgment, but he cannot express it at that stage, is to indicate that you have crossed that line which makes the bystander inculcated with a feeling of confidence that the judge is approaching this issue with a predetermination on the issue of credit, particularly what she is going to give to the husband but, your Honour ‑ ‑ ‑

McHUGH J: What is in the judge – correct me if I am wrong, but he maintained his views even after objection was taken.

MR GRIFFITH: Your Honour, what we say here is that, in effect, what is done by the judge is to say, “I did not say it”. Your Honour, in a way, that is worse, with respect.

CALLINAN J: Is that right? Did he not say, “I was not saying that I would not accept the evidence of either party”? That is hardly a denial of what he said.

MR GRIFFITH: But, your Honour, he did not say that. He said exactly the opposite. He said, “I rely principally on witnesses other than the parties”.

CALLINAN J: Yes, but “principally”, and by relying principally upon the evidence of other parties, he was not saying that he would reject the evidence of either party.

MR GRIFFITH: Well, your Honour, what we say is ‑ ‑ ‑

CALLINAN J: Other witnesses, I should have said before.

MR GRIFFITH: What we say, your Honour, is that it was necessary for the judge to conduct himself so that it would not become plain to this bystander that he was adopting the view that neither party was worthy of credit.

CALLINAN J: But what he said, when he corrected it, did that not necessarily keep open a real prospect that persuasive evidence of either party might influence him?

MR GRIFFITH: With respect, we would say the bystander would be even more agitated by that because what his Honour is saying, with respect, is, “I didn’t say what I said yesterday. I said something else.” He might say, “Well that’s a bit strange because when I look at the transcript I see your words and your language can only be construed to the contrary and now, if you say you didn’t say it, I’m all the more anxious about whether or not there’s bias”.

CALLINAN J: At the moment, at the risk of being accused of prejudging the matter, I have a tentative view that there is not such a distinction between what was said on both occasions.

MR GRIFFITH: Your Honour, that is the issue of close construction. We, in our written submissions, make very concisely our points of constructions which we say are plainly to be made and we say it is not a matter of subjective and indulgent reading of meaning as is conducted by the Full Court because, in that case, what the Full Court is doing is not applying the reasonable bystander test but applying the question of what do we think as judges, in effect, to substitute an assessment of judicial likelihood rather than that of the bystander. The bystander merely has to hear the words and do the best with it.

GUMMOW J: Yes. The bystander does not construe transcript.

MR GRIFFITH: He hears the words, your Honour. He is in court and he says, “Well, what have we got here? We’ve got a question where, at the end of the day, it may well be that the only cogent evidence that will be given will be by the husband”, and the judge is saying in this matter involving, perhaps, what would be the equivalent of all the husband’s assets, because if the calculations made by reference to offshore assets in the conclusion is incorrect, the wife, in effect, gets 75 per cent rather than 40 per cent of the Australian assets, that the husband, in effect, is not going to get a fair go because the judge is saying in advance, “I am demoting the credit which will be given to his evidence. Because of the approach I take I will, principally, have regard to third party witnesses in evidence.”, at a point, your Honour, where he has not heard, has not even read all the witness statements, has not heard all the evidence and has not heard a word from the husband and, as is indicated on page 265 of 136 CLR, and if I could take ‑ ‑ ‑

KIRBY J: I have not ploughed through all of the transcript in the nine appeal books or however many you have given us, but tell me a little about your client’s oral evidence. Was it mainly assertion on his part or did he become the vehicle for putting the documentation and so on before the court?

MR GRIFFITH: Your Honour, there were various statements put in the documentation and asserting that the documents and the transactions were transactions not beneficially for the husband, so there was a maintained position, your Honour, by the husband that he was not the beneficial owner of this property.

KIRBY J: Do you say that, in the presentation of his oral evidence, that the assessment of his credit was important for his chances of success in the case or not?

MR GRIFFITH: It was, your Honour, because over 300 pages of judgment is necessary to consider the facts which by and large were established by reference to evidence brought forward by the husband.

GUMMOW J: Why do you say “evidence brought forward by”?

MR GRIFFITH: He had to put in statements and documents, your Honour.

KIRBY J: And is that how the trial unfolded, that he became the vehicle for putting this material before the court and was it the material which was critical or was it his assertion and his explanations and his statements. I have to tell you, as my question at the outset indicated, this is the thing about the case that worries me, the point at which the judge said this. Did that indicate that whatever your client said, that he was downgraded, he was not AAA, he was going to be downgraded as to his credit and that that took away an element in his case which, potentially, was important, at least in the eye of this fictitious observer.

MR GRIFFITH: Certainly the husband did put in material and was examined on it. The judgment of the primary judge considers the various transactions and circumstances and, by and large, makes findings favourable to the wife on these issues of whether or not the property which the husband said was not beneficially his, was beneficially his, and that is the end result. But your Honour’s question really is to emphasise the point we make, that one must determine the circumstances of whether or not there is a basis for apprehended bias at the time the statement is made, not by reference to what happened in the 46 days afterwards and in the judgment.

We say that is not a matter of relevant inquiry, in our submission, because that is to adopt a wait-and-see approach which the Full Court in effect did and which one picks up in paragraph 32, the last paragraph in my learned friend’s submission which says, “Oh, well, when you look at the entire judgment, you deserve to lose anyway so it just goes to show you are just reaching out for bias because that is your only way to get out of a desperate situation”. In our submission, when one looks at the situation there was a basis for this apprehended bias arising from the remarks - 19 March - and, as required by the authority of this Court, the point was immediately taken by counsel and the judge’s response is not to dispel the bias, but to say, in effect, “I did not say what I said yesterday”. We say that exacerbates the situation.

I do not know whether that dispels, Justice Callinan, your tentative view expressed on that issue but, with respect, your Honour, we can put our approach on this no higher than the concise way we have put them in our written submissions, paragraphs 2 and 3. That is the way we put it, by reference to the words actually used on 19 March, putting them in the context, if you like, as to what was said before to say one is in a position that there is a statement which does that which is stated by Justices of this Court, in particular, at page 264 136 CLR, is not permitted, something you are not permitted to do at that stage of the case.

The effect of that is both the husband and also this reasonable bystander would take the view that there is not a full consideration of the matter adopting the judicial process, whether one accepts the process as that as summarised, which I would accept by the statement read out by his Honour Justice McHugh, or by reference to the requirements stated by various of their Honours in authority of this Court.

Your Honours, at page 265, the Court makes the point that there may be bias even though a judge has formed an equal distrust of both parties. At the last paragraph on page 265, they say:

The formation of a preconceived opinion that neither party is worthy of belief amounts to bias in the sense in which that word is used…..To form such an opinion is to predetermine one of the issues in the case, and may operate unfairly against one party, even though both are discredited. A prejudice against the credit of both parties will not necessarily damage both parties equally. It will prove more damaging to that party who wishes to establish a fact by means of his or her own unsupported evidence. 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 adversary as well.

What we say, your Honour, to put the matters quite simply, is that the husband, as he was about to be examined orally in the proceedings, and as matters were to proceed for another 46 days, was entitled to have confidence that his evidence would not be one which might be, to put it in the terms of the expression here, “disbelieved” merely because it was evidence coming from him. We say, your Honour ‑ ‑ ‑

McHUGH J: The critical question is, is it not, whether the passage that appears at 21 or 930 represented a settled view of the judge? That is the critical question, is it not? That is what you have to show.

MR GRIFFITH: Yes, your Honour. We say it did and we say the statement made next day exacerbates rather than removes that characterisation. We say the reasonable bystander would not take the view which was taken by the Full Court who, in effect, substitute a different test from that which is required by the authority of this Court.

GLEESON CJ: I note that at page 945 in the middle of the page Mr Udorovic at the commencement of his application for disqualification said that the words used by the judge on page 930 were precisely the words that had been used by the judge on previous occasions.

MR GRIFFITH: Although he does say he does not have a transcript, your Honour.

GLEESON CJ: Yes, but that is just the impression that was made. Does the reasonable bystander have a transcript, by the way?

MR GRIFFITH: Your Honour, it is up to the court to tell us. Sometimes parties cannot afford one.

GLEESON CJ: Mr Udorovic, who was a very alert bystander, did not discern any difference between the statement made by the judge on page 930 and the statements that he had made on previous occasions.

MR GRIFFITH: He did, because when one reads the totality of his submission, we say one could not have a more plainly inappropriate submission made as to why the statement on 19 March did cross the boundary.

GLEESON CJ: Reading the pages that lead up to page 930, one gets an impression, perhaps unfairly, that Mr Udorovic is not the most deferential of counsel in his manner of address. Suppose that immediately following the remark made by the judge on the bottom of 930, Mr Udorovic had immediately got to his feet and said, “Just a minute. Do you realise that what you’ve just said in effect is that you’re not going to take any notice of the credit of my client”. Suppose the judge had said, “No, I didn’t mean that”. It would not have advanced the position for Mr Udorovic or a reasonable bystander to then parse and analyse the preceding paragraph, would it?

MR GRIFFITH: Your Honour, that may be the case but the problem is that the judge on the next day made a very brief ruling saying, “I didn’t say that”, not that, “I didn’t mean it”. He said, “I didn’t say it”, and he did say it.

KIRBY J: That is what the transcript records, but could that not be read as, “By saying that, my intention was to say”? I mean, we all say things that you see on transcript that are not exactly what you intended to say, certainly without the elegance that you intended to display.

MR GRIFFITH: Well, that is my problem, your Honour. The difficulty is that this bystander test excludes the court from participation in saying, “In the context of a judge acting, according to the judge’s oath, with integrity in all matters, without bias in all matters, this is not what I intended to say”. The whole approach of the bystander test is that the only reference point is, “What did you say? What would the bystander make of this?” Of course, in most of these cases one would expect the particular judge taken to the issue in the transcript would say, “Well, I didn’t mean to say that. I didn’t intend that”. But at the end of the day it is not that intention which was one, for example, described by the Full Court in the last page of its consideration of this in paragraph 32 of its judgment. It is a question of what does the bystander make of it.

That is a point we come back to and we say that on the very concise manner in which we have expressed it in our written submissions, paras 1, 2 and 3, we make out the proposition that the words used here go across that ill‑defined line and that the circumstances of the rearticulation on 20 March did not constitute a correction but merely, when properly analysed, a confirmation of the point of anxiety to the reasonable bystander.

McHUGH J: Well, that is the real problem about this reasonable bystander. I mean this test is now settled and applies to courts, although I have got to say I have always thought it was a mistake. It was a test that was introduced into the law to deal with lay tribunals where it made some sense. It is easy enough to think what a lay observer might think in front of a lay tribunal or a quasi‑judicial tribunal, but once you start to apply it on issues that come before a judge it seems to me very difficult to apply it. It has got to be some sort of a construct, it is an artificial construct. You do not say any particular observer. Some people say a reasonable observer, a reasonable person, so you impute things to this hypothetical creature.

KIRBY J: But is it not just a fiction in order to remind judges that justice must not only be done but be seen to be done and, therefore have, and win, and continue every day to win, the confidence of the community who are fictionalised in this reasonable bystander? That is all it is, is it not?

MR GRIFFITH: Well, no, your Honour, there is quite a useful support of the rationale which we extract in a footnote to our submissions, page 9, note 9 on page 6, Professor Mureinik’s analysis, the particular citation we have distributed to the Court, your Honour, but it summarises in that footnote, your Honour, the ‑ ‑ ‑

McHUGH J: Sorry, what page is it?

MR GRIFFITH: Page 6 of our submissions, footnote 9, and the actual full note of Professor Mureinik we have provided to the Court, your Honour, particularly those two pages, shows that the advantages of the reasonable suspicion test, because you do not then have to engage in the very difficult task of inquiring into the mind of the decision maker.

McHUGH J: Well, I appreciate that, but that does not seem to me to answer the real problem that the reasonable observer test gives rise to and that is, what do you impute to the reasonable observer, in a case with many issues and where there is often a sophisticated process of reasoning.

MR GRIFFITH: Well, you do your best, your Honour. I should mention that there is a recent decision of the Court of Appeal of Locabail UK Limited v Bayfield Properties (2000) 2 WLR 870 ‑ ‑ ‑

KIRBY J: Is that the one with the five cases that ‑ ‑ ‑

MR GRIFFITH: I do not know whether there are – yes, it is, your Honour, yes, where the Court of Appeal do maintain the English test and refer to the departure, for example, in the Australian approach as being appropriate and, indeed, I was in London last week and there was a decision of the Court of Appeal on the question of disqualification of an arbitrator which was of a similar result, but, your Honours, there is no doubt about the divergence but ‑ ‑ ‑

GLEESON CJ: In Locabail the Court of Appeal expressly approved of the decision of the Court of Appeal of Victoria in the case that is coming on appeal to us.

HAYNE J: Clenae.

MR GRIFFITH: Yes. Well, there you are, your Honour, but I do not know whether either of us came today seeking leave to reargue that which at least we regarded as settled, but, your Honour, Justice McHugh has put your finger on a problem, but we make our submissions from the parameters of extant authority of this Court.

McHUGH J: No, but in Laws, for instance, Justice Gaudron and I, and I think other members of the Court, imputed to the reasonable bystander some knowledge of issues that might arise in defamation proceedings, having commenced defamation proceedings, which were alleged to have made the members of the tribunal prejudiced against Mr Laws.

MR GRIFFITH: Well, perhaps you are falling down the well of difficulty to go that far, your Honour, but we say this is really a plain issue of there is a question here of credit. The husband is the one who is going to know about it all. To win this case he has to be believed. And the judge is saying, “Before I hear from you - I have read your statement - I will principally rely upon everything else except what you say.” We say, your Honour, the reasonable bystander, whether he is a supporter of the husband or not, would say - well, if he supported the husband he would say, “Well that makes me anxious”; if he supported the wife he would say, “That looks like we are going to have a pretty good day in court, or 66 days on this”, and we say that is the sort of approach, your Honour – we say this is a statement made at too an earlier stage, which would engender a complete lack in confidence that there is going to be assessment of the credit of the husband on these matters which, at the end of the day, might be expected to turn on the credit of the husband, in the full context, your Honour.

One picks up from the introductory parts of both the primary judge and also the Full Court, the basic fact situation, where one sees it is really an issue whereby the husband is the one who knows – he is the only one who knows – and one would expect, your Honour, that were he accepted as

a witness of credit, well then he would win. If he is told in advance, your Honour, “We are going to be looking everywhere else, except listening to you”, he is in difficulty. Now, it is a matter of appreciation, your Honour, is it an ill‑defined line, but we say, the summary propositions that we make in paragraphs 1, 2 and 3, our propositions over 7 or 8 pages, establish that the test is satisfied. If the Court pleases.

CALLINAN J: Dr Griffith, just before you sit down. There is one matter that might assist me, if it could be provided, and that would be a chronology of the hearing itself so I could know which witnesses were called and on which days they gave evidence and who called them. It should not be too difficult to compile.

MR GRIFFITH: Your Honour, I am sure we can do it in less than 66 days, but could we have a week for that?

CALLINAN J: Well, it is a matter for the other members of the Court.

MR GRIFFITH: That is what juniors are for, your Honour. But, yes, your Honour, that can be done ‑ ‑ ‑

CALLINAN J: It might help to put what was said in a better context.

MR GRIFFITH: Quite, your Honour, although we would maintain our response that you do not look beyond day 20 to answer the question.

CALLINAN J: I understand the submission.

GLEESON CJ: Did you notice that none of us said to you, when you commenced your arguments, that you could assume we have read all the papers in this matter? Even taking that in a conventional sense.

MR GRIFFITH: Your Honour, I am a believer in preparation by counsel being more extensive than by the Court, your Honour, but preparation in this case, as far as we are concerned, does not involve perfect knowledge of 66 days plus the documents, your Honour. We just have a sample here – this seven volumes. That is just selections.

GLEESON CJ: Yes, thank you. Yes, Mr Jackson.

MR JACKSON: Your Honours, may I say two things before going on to the substance of our argument? The first is this. This is a case where the burden of proof of what were the assets lay, ultimately, upon the present respondent. It was not the case where you put everything in the pot and the court just pulls something out at the end of it and says, “That is what we think the assets are”.

KIRBY J: But does that not make it all the more important that, in so far as credit was going to play a part, that the judge should approach the matter without any bias against credit.

MR JACKSON: Yes, of course, your Honour. Your Honour, could I also say, your Honour, I entirely accept that. Could I say, secondly, that it is not right to say that this is a case where there was no evidence by the wife, herself, other than pure assertion. The point we had sought to make in our written submissions was that the statements that were made by the judge on the earlier occasions, were ones made in circumstances where, on the first occasion, a particular cross-examination in relation to one issue seemed to be, in effect, just putting assertion against assertion, and the judge said, “Well, look, why do you not look at the documents?”, in effect, and I will come back to that.

Your Honours, so, if I could just commence by saying we do not suggest for a moment that the case was one where the credit of the parties themselves was irrelevant. But, your Honours, at the same time, if one looks at what the judge said and then goes on to see what he said immediately after the issue was raised by him, it is apparent, in our submission, that what the judge did was to set aside, in our submission, any possible view that any reasonable person, whatever might be the exact test, and I will come to that in a moment, might have thought adverse in the statement he made on 19 March.

Your Honours, could I say, first of all, that what took place on the day after may, in our submission, properly be taken into account and, in that regard, your Honours – I will give your Honours a reference in just a moment, if I may – to the approach taken by this Court in relation to a similar matter. Your Honours, could I come first to what the judge actually said the next day. You will find that in volume 5 of the supplementary materials at page 958. Could I just indicate, your Honours, the course that had been taken? What had happened had been that after making the statement at page 930, your Honours will see that he said, “I am adjourning”. That is the bottom of page 930, having said he was not going to vacate the order about discovery, and then the next morning matters took place, in effect, relating to the Australian Securities Commission Act, and that went on for quite some time.

At the conclusion of that, your Honours will see that at the bottom of page 943, about point 7 on the page, that issue is concluded and the judge then said:

HIS HONOUR: All right, thank you. Now can we have Mr Tarrant back in the witness box?

Then, your Honours, the argument commenced concerning what had been said the next day. An application was made, no prior notice given to our side, where the judge was sought to recuse himself, as it were. Then, at page 945 between point 4 and 5, what the appreciation of then counsel for the appellant was that the words were used on the previous occasion. Your Honours, at page 947, point 6, the judge protested that he had not been singling out the appellant ‑ ‑ ‑

GLEESON CJ: By the way, at this stage have counsel for the judge a transcript?

MR JACKSON: Your Honour, the matter in fact, I think, was recorded electronically.

HAYNE J: At 944 counsel hand up some pages of transcript.

MR JACKSON: Yes. I think the answer is, generally speaking, no. I will endeavour to clarify that but I think it was recorded electronically and that may have been being used and they had it in that sense, your Honour. I cannot give an exact answer to it.

GAUDRON J: It seems that they did have the relevant transcript because at 946 using “your Honour’s words” and it looks as though they are quoting from something and at 944 they have “the last few pages of transcript of” presumably “what occurred yesterday”, line 44.

MR JACKSON: Your Honour, may I just check for a moment. I will endeavour to give your Honours an answer straight away. Your Honour, apparently there was not a printed transcript day by day. Of course it was recorded by court reporters and part of it had been obtained as you will see at the bottom of page 943.

GLEESON CJ: So counsel has come along to make his application on the 20th having had specially taken out the last few pages of transcript of the 19th?

MR JACKSON: Yes, and then, your Honours, moving on to page 947 about point 6, the judge, as I said a moment ago, protested to the fact that he had not been “singling out Mr Johnson” in his remarks. One sees then, your Honours, that when one comes to the remarks that were actually made on the 20th, at page 958 about point 3 the present appellant’s submissions had concluded and at the top of the page Mr Wilson, who was appearing for the respondent - and you will see that there had been a luncheon adjournment at the bottom of page 957 - said at point 3 “the application” had come “as a surprise” and he elaborated upon that and he asked for time to prepare an argument in relation to it and then the judge said, at point 6, that, in effect, it was not necessary for there to be an adjournment and he said:

Well, I’ll read out what I’ve written –

Now, your Honours, I will not read it out but your Honours will see he refers to the fact that he:

spent 2 days reading the affidavits filed by both parties and some of the witnesses –

because for some –

there were no affidavits. It was apparent that there was a wide divergence between the evidence of both parties…..That has become more apparent as the case has proceeded. I drew attention to this difficulty.

Your Honours, what he says then is in really the simplest form saying what is a perfectly normal way of dealing with the case and saying, “That is what I intended to convey”:

When yesterday I repeated what I earlier said, I was simply pointing out to the parties the wide divergence. It was going to be a difficult task. My statement was not to be taken as a predetermination of the credibility of both parties, or of either of them. My statement merely affirms my need to look to the other evidence to assist in determining who is telling the truth. I was not saying I would not accept the evidence of either party –

and your Honours will see it goes through to the end of that paragraph.

GLEESON CJ: Now, I think Justice Kirby mentioned earlier that turn of phrase “I wasn’t saying this” or “I was saying that” is often used by people who are intending to convey the information “I was not intending to say that” or “I was not intending to say something else”.

MR JACKSON: Indeed. Well, your Honour, in our submission it is really absolutely clear to anyone reading this passage at page 958 to 959, the judge is saying, “If I have created any misapprehension I am correct it now. This is my approach to the case”.

GLEESON CJ: Is a reasonable bystander at that stage entitled to say to himself or herself, “I do not believe you”?

MR JACKSON: In our submission, no, your Honour. Could I say that I intend to take your Honours in just a moment, if I may, to some observations that were made by Chief Justice Mason and your Honour Justice McHugh in Webb v The Queen in which their Honours said that one of the matters that the bystander should take into account is what the judge says about it. That was a case where there was a juror’s potential bias was in question. But may I come to that in just a moment. I wanted to go first, if I may, to the case I adverted to earlier where the Court did take into account the fact that the judge shortly afterwards, at the time when an application for the judge not to sit further because of bias, had said, “I am not prejudice” and in effect said that at that point and said no more. That is The Queen v Lucink; Ex parte Shaw, (1981) 55 ALJR 12. It is not reported in the Commonwealth Law Reports.

In that case the judge had expressed herself in quite strong terms on a matter at issue in the proceedings. Your Honours will see that set out at page 13 in the right column, the first new paragraph on the page. It goes through to the bottom of that page. Your Honours will see then at the top of page 14 in the left column:

Further discussion then ensued.

Then in the same column, between letters B and C, the left column:

Counsel then said that it might well be that his client would be concerned, having regard to what her Honour had said, if the matter proceeded in her Honour’s court.

She said then:

I am not prepared to disqualify myself on what I have said so far.

And then, your Honours, we could pass over a few words and come down to between D and E, she repeated she would not disqualify herself and then said:

I have pressed the point that I am not prejudging. I am only saying –

et cetera. Then at the start of the next paragraph:

The proceedings were adjourned, and the suggested conference was held - - -

If one goes then to the right-hand column on page 14, at about letter G, your Honours will see that the – I am sorry, I should have said if one goes to the bottom of the left column on the same page, your Honours will see that after a reference to Watson’s Case, Acting Chief Justice Gibbs said:

In that case it was pointed out, at p. 264, that it is not uncommon, and sometimes necessary, for a judge, during argument, to formulate propositions for the purpose of enabling their correctness to be tested, and that “as a general rule anything that a judge says in the course of argument will be merely tentative and exploratory”.

An observation that, in our submission, is apposite in the present case because as soon as the matter was drawn to the judge’s attention the judge corrected any possible error in what he had said. Then your Honours will see that towards the end of the same paragraph, his Honour said:

Of course, the court which is asked to grant prohibition will not lightly conclude that the judge may reasonably be suspected of bias in this sense; it must be “firmly established” that such a suspicion may reasonably be engendered in the minds of the parties or the public -

If one goes down to between letters C and D on that page, your Honours will see that his Honour said:

An examination of the statements made by her Honour, which are set out above, shows that she expressed no firm view as to the precise form of the order which she suggested might be made…..She described her own remarks merely as “comments … on the facts as they have appeared before the court to this moment …” and repeatedly emphasised that she was not to be taken as prejudging the case.

Now, your Honours, if I could just pause at that point, his Honour formed the view that no case for prohibition had been made out and Justices Stephen and Wilson agreed with his Honour. Justice Murphy at page 15 also referred to the fact, particularly commencing about letter E ‑ ‑ ‑

McHUGH J: On two occasions you have passed by passages where Chief Justice Gibbs emphasised that, for instance, at C:

However, it would be exaggerating the importance of the mode of expression which the learned judge adopted to conclude that she had decided that she would make an order of a particular kind irrespective of the state of the evidence at the end of the case –

And again, at F:

were other than provisional, or that it could reasonably be suspected that at the end of the case she would not decide with a fair and unprejudiced mind.

MR JACKSON: Yes, your Honour, I was abbreviating really what I was seeking to say about it. What is made clear in that passage, in our submission, is that the test is a stringent one. What the judge said was, if I could put it directly, pretty strong, and much stronger than anything that is said in this case. But, your Honours, could I also say that in Vakauta v Kelly (1989) 167 CLR 568, the observations of members of the Court are in favour of the view that there may be taken into account what is said by the judge, after the judge’s attention has been drawn to what has been said. First of all, at page 572, in a passage to which one of your Honours has referred already, in Justices Brennan, Deane and Gaudron, where what was said, your Honours, commencing about point 5 on the page:

By standing by, such a party has waived the right subsequently to object.

And, your Honours, I will not read it out, but could I go to about point 6, the passage, the line commencing:

hearing the matter, the judge may have been able to correct the wrong impression –

et cetera. That recognises one of the possibilities. So too, your Honours, Justice Dawson, at page 577, your Honours will see at about point 6 on the page, his Honour said:

But when the matter of the trial judge’s remarks was expressly raised, counsel not only failed to give any indication that the trial judge was being invited to disqualify himself or take some other step to cure the situation but appeared to suggest –

et cetera. So his Honour recognises that disqualification is not the only possibility and Justice Toohey, at page 587 where, about halfway down the page, his Honour says:

It will then be for the judge to determine what course to adopt, in particular whether to stand down from the case. For counsel to invite the judge to withdraw from the case may be quite premature, particularly if the judge acknowledges the apparent bias in what has been said and thereafter takes steps to dispel that apprehension.

Your Honours, I referred earlier to Webb v The Queen (1994) 181 CLR 41. In that case Chief Justice Mason and your Honour Justice McHugh, after referring to the fact that the view of the ordinary reasonable – one looks to the view of the ordinary reasonable member of the public, then said that the view of the judge Was not irrelevant. You will see that at page 51, the bottom of page 51 about point 8, your Honours referred to the sentence commencing:

But the premise on which the decisions in this Court are based –

and your Honours then set out a number of ways in which the observer had been described. Then the paragraph goes through to the top of page 52 but concludes, your Honours, in the last four or five lines:

That does not mean that the trial judge’s opinions and findings are irrelevant. The fair‑minded and informed observer would place great weight on the judge’s view of the facts. Indeed, in many cases the fair‑minded observer would be bound to evaluate the incident in terms of the judge’s findings.

And, your Honours, at page 53 about point 8 on the page your Honours said:

A fair‑minded person would give considerable weight to the judge’s conclusion that the public ventilation of the incident – together with an appropriate warning –

and one is speaking about a jury incident, of course –

would nullify the inference otherwise to be drawn from the irregularity.

At page 55 about point 7:

a finding that the incident gave rise to a reasonable apprehension of bias is not the end of the matter. The fair‑minded and informed observer would also consider the effect of the judge’s warning on the juror and the judge’s assessment of the character of the juror. We have already set out the passage where the learned judge said that he thought that, even if there was a risk of bias or prejudice, the case could be met with an appropriate warning. That was an opinion that a fair‑minded person would not lightly reject.

And, your Honours, at page 56 in a passage commencing about point 6 on the page:

While her sympathy for the deceased’s mother –

your Honours will see in the remainder of the paragraph the various considerations to be looked to and they included:

the strength and detail of the judge’s second warning –

Also, your Honours, Justice Toohey, at page 88, about point 4:

Any dangers associated with it were readily capable of being avoided by the express directions the trial judge gave to the jury.

What we would seek to say about that is whilst that case, as I said, deals with a jury case, what it does indicate, in our submission, is that it is appropriate for the fair‑minded observer to take into account what is done to alleviate the impression that might otherwise have been created. In our submission, if one goes to the statements actually made by the judge in the present case – and I have taken your Honours to those – the judge said in very, very clear terms that his statement was not to be treated as a prejudgment by the court of either or both of the parties. We would submit why does it differ in any material way from what had been said by the judge in Lusink?

We would also seek to say that if one took any of the descriptions identified by Chief Justice Mason and your Honour Justice McHugh in Webb v The Queen 181 CLR 51, none of the persons so identified as the type of observer could reasonably say that after that careful and clear statement had been made, there could remain any view of apparent bias.

GLEESON CJ: I suppose it might depend on the circumstances of a particular case. It is possible to imagine a remark made by a judge which was perhaps repeated or was for one reason or another such a clear indication of prejudgment that nothing a judge said later by way of retraction or alteration could correct the impression that would be created on a fair‑minded observer. But here, when the judge’s remark is considered in context and the judge the next day says in effect, “I didn’t mean to say that I was going to disregard the credit”, that might be a different position.

MR JACKSON: Your Honour, I accept that. Can I say about that that we will accept of course that there may be some things said that cannot be cured. Some observations can be made only once but be of such a kind that they would really go to the heart of the confidence in the court. But it really must depend on the particular case. This is, in our submission, no more than a particular case where in relation to that case the judge, as soon as the issue was drawn to his attention, said, “Look, you’ve raised the issue. I’ve thought about it over lunch. This is the position. I don’t need to hear the other side. This is the view that I’ll take”. As soon as the issue was raised he said something that corrected any possible misapprehension.

KIRBY J: I take the power of that, and I do not want to harp on this, but the matter that still worries me is that it was said at a time in a case where, at least arguably, the credit of the husband could have been an important forensic element and it was said before the husband got his chance to get his oar in with the impact of his oral testimony, after the wife had given her oral testimony but before he had given his, and that is the aspect of it, I must confess, that worries me.

MR JACKSON: Well, your Honour, without seeking to parse and analyse precisely what was said, one does have a situation where, as soon as the issue is raised and the judge is dealing with it, one can see the judge saying in the course of the argument – I took your Honour to the passage a little while ago – that, “I wasn’t saying anything against your client”. Your Honour, one can see, in a sense, a kind of mild distress on the part of the judge, even from this transcript at page 947 where he said, “Wait a minute, I’m not singling out Mr Johnson in my remarks”. Your Honours, as we have sought to point out in our submissions in relation to what went before, some of the observations made by the judge were observations that were made in circumstances where he was acceding to submissions made by the other side.

Your Honours, could I come back from – I have dealt with what took place afterwards and perhaps I should just add that if the fair-minded observer saw that and saw what the judge said in that passing observation, and then his other remarks, one could not really adopt the view that there was any reasonable apprehension of bias. Your Honours, could I say that, speaking more generally, we would accept, of course, that if a judge made it clear that in deciding a question of fact the judge either would pay no attention to the evidence of the parties themselves or would give weight to evidence of a party only if that evidence was corroborated, then there would be a case of apparent bias. That is what Watson’s Case decides.

It would be a curious approach to the resolution of that issue if, first of all, one had to look only at the words used when making the impugned statement to the exclusion of the context giving the meaning, to the exclusion of other statements incorporated by reference, and to the exclusion of statements made later ameliorating their apparent bias. In the end, although our learned friend puts it slightly differently, that is the course which the appellant’s argument invites the Court to take. Your Honours, those steps, in our submission, are against authority.

I have dealt with what took place afterwards, but could I go to the propriety of taking into account the events preceding the statement made on 19 March. Your Honours will see, as we say in paragraph 2 of our written submissions, that the statement commences with the words, “Well, let me go back to what I said at the very beginning”. Your Honours, why is that statement to be disregarded, to be treated as if it is not there? Why does one only look at what follows that but excise that part from it? Your Honours, we would submit that the decisions make it clear that in deciding questions of apparent bias, the Court looks at all the circumstances.

Your Honours, if I could a reference in that regard to Livesey v The New South Wales Bar Association (1983) 151 CLR 288. At page 293 about point 9 a Court of five Justices used the words “in all the circumstances” in describing the principle to be derived from Watson. Your Honours will see that at page 293, the bottom of the page, where it was said:

It was common ground between the parties to the present appeal that the principle to be applied in a case such as the present is that laid down in the majority judgment in Reg v Watson; Ex parte Armstrong. That principle is that a judge should not sit to hear a case if –

and your Honours will see the words –

in all the circumstances the parties or the public might entertain a reasonable apprehension –

et cetera. Now, your Honours, that approach can be seen too in In Re JRL; Ex parte CJL (1986) 161 CLR 342 where, first of all, Chief Justice Gibbs at page 349 about point 7 set out the test in this way. It is, your Honours, at about point 7. It is the third line of the last paragraph on that page:

Counsel for the prosecutor referred us to authorities which establish that a judge should not sit to hear a case if in all the circumstances the parties or the public –

et cetera, and, your Honours, Justice Mason at page 351 about point 7 said - your Honours, perhaps I should say about point 6:

On the other hand, although the terms of a subsequent disclosure by the judge of the communication and a statement of its effect may –

this was a private communication made to the judge by a court counsellor –

in some, perhaps many, situations will be sufficient to dispel any reasonable apprehension…..will not always have this result.

And his Honour said:

The circumstances of each case are all important. They will include –

et cetera. Your Honours, page 355 ‑ ‑ ‑

GUMMOW J: Well, page 352, the first paragraph is an important paragraph really in Justice Mason’s judgment in JRL. It has often been referred to, I think.

MR JACKSON: Yes, your Honour. Your Honour, perhaps I should – it is the first new paragraph on the page your Honour is referring to?

GUMMOW J: Yes.

MR JACKSON: Yes, your Honour, that picks up again about two‑thirds of the way through it:

In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”.

And then the need for courts to perform their duty, in effect, is referred to in the remainder of that paragraph and what your Honour says is correct.

Could I go a little further up the page to about the eighth line in the paragraph:

It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.

Your Honours, I was about to go to page 355, the last paragraph on that page, where Justice Mason said:

But the critical question is whether in all the circumstances the parties or the public –

et cetera. I am referring to this for the references to “in all the circumstances”. Justice Wilson, page 359, about point 7:

The principle of law governing this matter is not in doubt. It is that a judge should not sit to hear a case if, in all the circumstances –

and further down the page, just after the reference to Livesey:

It has been recognized that in a case such as the present, where there is no allegation of actual bias, the test of reasonable suspicion may be a difficult one to apply involving questions of degree and particular circumstances…..A court of review must be careful not to exaggerate the significance of actions or statements made by a judge in the course of a proceeding. There must be “strong grounds” –

there is again a reference to Shaw or Re Lusink, same case, and reference to the passage:

‘as a general rule anything that a judge says in the course of argument will be merely tentative and exploratory’.

Justice Brennan at page 368 referred at about point 7 on the page to the principle restated in Livesey, and I have taken your Honours to that passage from Livesey already. Justice Dawson at page 371 at the bottom of the last paragraph on the page said:

It is an understandable tendency to assume the existence of a reasonable basis for supposing bias where there is…..an apparent departure from the proper standards of judicial behaviour. But the whole of the circumstances must be considered and such a conclusion must be firmly established and should not be reached lightly.

His Honour went on to say, at the top of the next page:

Moreover, the whole of the circumstances are not confined to the conduct said to afford reasonable grounds for suspecting a lack of impartiality. They include what was done by the judge subsequently, which may be sufficient to eradicate any reasonable apprehension of bias notwithstanding an earlier lapse in the observance of proper procedures.

And he said:

It is clear that an initial failure to hear a party or allow him to put his case may be cured –

and that should imply, in appropriate cases, also to impartiality.

GLEESON CJ: And what is the reference to that?

MR JACKSON: Your Honour, that is page 372, commencing at the top of the page to about point 6. I have referred also, your Honours, already to the passage in Vakauta v Kelly 167 CLR at page 573.

Now, your Honours, there is no reason why, in our submission, the reasonable and informed observer would not be required to take into account in determining what was conveyed by the statement made on 19 March what had gone before. Your Honour, whilst our learned friends’ oral submissions have moved away a little from it, your Honours will see that from their written submissions in paragraph 3.4 they said then that the earlier statements were not in any way controversial.

Your Honours, in our written submissions in paragraphs 2 through to 9 we have set out what took place earlier and we have given your Honours the reference; it is the context in which those are to be found. Your Honours, I had not intended to take your Honours to the detail of those, unless your Honours want me to, of course, but we would invite your Honours to look at the short passages which we have tried to extract to indicate what was there said.

Your Honours, what that material indicates, in our submission, is that the judge was doing no more than saying that if one is looking into the resolution of conflicts of evidence, evidence of those involved in the transactions and of the contemporaneous documents is likely to be of assistance.

Your Honour Justice Kirby says it is the kind of thing one sees said often enough, but could I give your Honours a reference to that in a decision of the Court Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599. It does not seem to be elsewhere reported, your Honours. Your Honours, I do not need to go to the circumstances of it at all but your Honours will see at page 603 in paragraph [16], the last sentence in that paragraph:

This was an orthodox and sensible approach to the matter.

What his Honour had done was set out in paragraph [15] and could I just go, your Honours, for a moment to the second paragraph of that quoted in [15] where his Honour said:

having regard to the seven to eight year period that has elapsed…..the only safe course is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence –

and so on.

KIRBY J: I think I said something like this in the State Rail Case.

MR JACKSON: Yes, your Honour. Yes, indeed, and indeed, your Honour, I think, in fact, the footnote is cut off in the copy I have. Footnote 1 referred to at the end of paragraph [16] is to State Rail.

Now, your Honours, we would submit also that the references back contemplated by the opening words of the statement made on the 19th are significant in relation actually to the meaning to be attributed to what the judge said.

Could I in that regard refer your Honours to paragraph 13 of our written submissions. The first thing, if I could just take your Honours to page 930 for a moment in volume V of the supplementary materials, one can, in a sense, subdivide what was said at page 930 into, I suppose, three parts. The three parts are: the first part immediately preceding the words “I’m not vacating my earlier order”; the second part is “I am not vacating my earlier order”; and the third part is “And I am adjourning”. Your Honours, what had happened, if one goes back to page 911 in the same volume, is that the issue about the second Securities Commission investigation had arisen.

Your Honours will see at page 911 point 5 where there was the request for a ruling about the documents. Then at point 9 on the same page, Mr Udorovic was asked did he want to say anything in relation to “discoverability” in the strict sense. Then at the top of page 912, the judge asked why they were not discoverable and, your Honours, if one goes then to page 914 you will see at the bottom of the page that the judge said it would be:
quicker and shorter…..to list them as discoverable documents.

He makes a ruling in that regard and, your Honours, then at page 915 point 3 Mr Udorovic says it is another matter about actual production and admissibility. From there, your Honours, one goes to page 925. I am sorry to take your Honours to this in detail. I just wanted to point out in the end the context and another passage which your Honours have not yet been taken. At page 925 you will see about point 3 on the page that Mr Wilson asks to have the “proceedings adjourned until tomorrow morning” so they can look at the situation about the ASC documents and then that is also at point 6 on page 925. When one goes then to page 926 point 2 the other side was asked did they have anything to say about the request for an adjournment.

Then, your Honours, one comes at the top of page 927 to the actual application to vacate the earlier ruling about discovery. Now, your Honours, it is in that passage at the top of page 927 that one sees the first of the two statements made that give rise, in effect, to the observation that the judge made because what is said is that, “This is not” – and this is the start at point 2:

the “Johnson Royal Commission”. It is turning into that. We are chasing every rabbit up every burrow –

and so on. The judge makes some comments about that immediately following and then, your Honours, there is a reference at page 928 point 3 to it being a “witch hunt” that is going on and, your Honours, at page 930, at the top of the next page, there is another request to vacate that order and, your Honours, that seemed to give rise to what, in effect, was, with great respect, a kind of diatribe which then follows at point 4 on page 930.

GUMMOW J: The judge seems to have been a very patient individual.

MR JACKSON: Yes, your Honour. Patience, of course, derives from the Latin, pati or I suffer.

GUMMOW J: I must remember that.

HAYNE J: I must go and look it up.

MR JACKSON: But your Honours will see then that, in effect, a kind of attack on the way the judge is dealing with the case, and the judge says -then comes to the stage, “Well, let me go back to what I said at the very beginning of the case”, which he then says. So, your Honours, will see he does that. He says, “I am not vacating the earlier order, but I am going to adjourn”. Now, your Honours, there is no reason, in our submission, why one could not take into account what had gone earlier and, in relation to the meaning of it, take the view that the judge was not saying anything very different from what had gone before and was in response to the suggestion the case was becoming a royal commission.

Your Honours, could I also refer to what we put in paragraphs 14 and 15 of our written submissions in that regard? Your Honours, could I move then to what we have put in paragraphs 17 and following of our written submissions, dealing with Reg v Watson; Ex parte Armstrong? The first point we would seek to make is that the statement in Armstrong is much stronger than that made here. It indicated clearly a committed view and a committed view which was stated twice more. Your Honours will see the references in paragraph 18 of our written submissions.

The second feature is that the statement in Watson was made before the trial started and was made, in fact, on the day before, as you will see from it. Your Honours, we refer in paragraph 20, and I referred in the course of argument, to the fact that a judge is entitled, sometimes obliged, to indicate his or her views about the issues, et cetera, in a case. Could we add, your Honours, the reference to Lusink where one finds that stated also?

The third feat, your Honours, is that to which we refer in paragraph 21 that in Watson the judge made no attempt to rectify or correct what had been said, in fact what he said exacerbated the situation. So, we would submit that one sees a passing similarity between something one set of words used in Watson and part of what was said here, but it goes no further than that.

Could I come then to – and I have dealt already, I think, with paragraphs 23, 24, 25 and 26 of our written submissions. Could I come then to the notion with which we seek to deal in paragraph 27 and following of the need for some acknowledgment of apparent bias by the judge. That seems to be based on what Justice Toohey said in the passage we have emphasised in paragraph 28. What we would seek to say about that is set out in our written submissions. We would submit the judge clearly was not endeavouring to set out a general rule.

The second thing is that if the subsequent statement is made in terms which a reasonable observer – which, too, such an observer should dispel prejudgment – then that impliedly acknowledges the possibility that something was wrong before.

The third thing is what is the function to be served by it? In particular, served by requiring that there be an actual acknowledgment of the apparent bias, because the judge may take the view, from which an appeal court may differ, that what the judge had said earlier was not capable of giving rise to an apprehension of bias, but at the same time have covered his or her tracks by taking the steps necessary to dispel the view.

CALLINAN J: Mr Jackson, I see at page 956 that counsel seemed really to be inviting the judge - this is in the course of the submission that he should disqualify himself - that the judge was really being invited to prefer oral evidence in relation to documents to the documents themselves, and that might certainly explain why the trial judge was taking the view that perhaps the documents should speak for themselves and warning perhaps the husband that the documents would need to be treated as important pieces of evidence.

MR JACKSON: Yes, your Honour. Could I just say also in relation to the case a couple of other things. One is, your Honours, that this was a case which, in our submission, was in some disarray, with respect - I am speaking about the appellant’s case - at the time when these statements were made. Could I give your Honours a summary which we have endeavoured to put in short form of some matters contained in relation to procedural matters that had occurred up to that point. I would refer in particular to, for example, the matters set out in paragraphs 2 and 3 and 4 of that document. Your Honours will see the references that we have there set out.

There are two other features I would seek to mention, your Honours: one is that your Honour Justice Kirby asked what stance, in effect, did the husband adopt ultimately when giving evidence? Well, what one sees, your Honours, is that a great deal of the husband’s oral evidence was, when any question of relevant difficulty arose, to say, I know nothing about it, you will have to ask Hedges or you will have to ask someone else. Well, of course, that was not terribly successful, because Hedges did not find the witness box congenial ‑ ‑ ‑

CALLINAN J: He did not like the histrionics.

MR JACKSON: No, your Honour.

CALLINAN J: He said in his letter to the judge.

MR JACKSON: Yes, he said a lot of things, your Honour, but the judge dealt with them fairly fully.

GLEESON CJ: He did not like the cold steel.

MR JACKSON: Your Honours, could I just give your Honours a number of references to where the husband did that, and may I just give your Honours the page numbers in the supplementary application book. Your Honours, I am happy to do it by giving your Honours a piece of paper with them later, if your Honours would prefer that, but otherwise I will just read them out now. Your Honours, pages 1020.4; 1022.6; 1025.7; 1028.8; 1029.1; 1049.1; 1060.8 and then, 1064.7; 1081.9; 1086.9; 1103.5; 1104.2; 1107, 1 and 2; 1119.2; 1112.7; 1114.7; 1117 and 1123.7.

Your Honours, I should mention that the husband’s counsel had said that Hedges’ evidence would be the pinnacle of it all. Your Honours will see that referred to in volume VI of the supplementary books at page 1140 point 5 and the wife by her counsel had indicated in part of the opening – an opening was given at the start of the case by both sides – that she would seek to cross‑examine both Hedges and Seeholzer in the opening address. Your Honours will see that at page 620A in the supplementary books and that was something that was said in writing at the start of the case.

Your Honours, the last thing I would seek to say is this, that I mentioned earlier that it is not the case that the wife gave no evidence in relation to there being a sham and that, with respect, we say that rather overstates what we had said in our written submission. However, and it is apparent that in the material she herself did have direct evidence which would lead to the conclusion that things were a sham.

Your Honours will see it, for example, in her affidavit. Your Honours, I will not go to all the passages. May I give your Honours a few of them. It is in volume 1 of the supplementary materials pages 20 to 21, 23 to 25, 27 to 28, 33 to 34, 36, 45 to 46, 50 to 52 and 54.

KIRBY J: How do you use that? Just remind me how you use it.

MR JACKSON: No, your Honour, I am sorry. I am putting it in order to alleviate a misapprehension if I can put it that way. What I am seeking to say is that we accept that the case was one where the credit of the parties was a matter for the court – we do not diminish it – to decide and what we do say is that if one looked at the material on behalf of the wife and on behalf of the husband there was material in their affidavits which could, on various issues, be decisive if accepted.

Equally, there was material which would be, likely to be, corroborated by other events, by other witnesses, other documents. The point I am seeking to say is that it is not right to say that this was a case where we really had no evidence, we were just making assertions and it was for the husband to prove his case. I have just given your Honours references to her affidavit to demonstrate that is not correct. Your Honours, those are our submissions.

GLEESON CJ: Just before you sit down, Mr Jackson, why have we been given 1400 pages of additional material?

MR JACKSON: Well, your Honour, I cannot now explain every page of those, but in relation to a number of them, it was thought various issues could arise in the case and your Honours will see that the first question your Honour asked was something that took one to pages that were not in the appeal book.

GLEESON CJ: I can understand why about 40 or 45 or 50 sheets of paper might have been added to the appeal book to sustain the submissions that you have just made, but why we should have been presented with a box full of additional folders I find difficult to understand.

MR JACKSON: Can I say in relation to that, for example, a very significant part of them is taken up by the principal affidavits and they were matters that were referred to by the primary judge when he gave his ruling on the 20^th, the ruling afterwards, saying, “I have read the affidavits”, and so on. If any question had arisen about the degree of conflict that was involved in them, they were there so that the Court might see them and be taken to them. Your Honours, in fact in the course of submissions, the submission which I made a moment ago was made by reference to one of the affidavits to demonstrate what the position was and, indeed, to correct

something that was said by my learned friend. I could not go page after page through them now, but ‑ ‑ ‑

GLEESON CJ: No, but when an appeal comes to this Court raising a short point arising out of a 66‑day trial it would ordinarily only be in very exceptional circumstances we will expect to have presented to us a transcript of the whole of proceedings of the trial.

MR JACKSON: Your Honour, they were not. There is no suggestion of that having happened. Various passages ‑ ‑ ‑

GLEESON CJ: This is the result of selectivity.

MR JACKSON: Indeed, your Honour, and can I just say in relation to those that, your Honour, there were arguments presented to the Registrar giving reasons why each of those passages should or should not be included and, your Honour, if a question of costs were to arise in relation to that, the merit of those arguments would have to be dealt with on the question of costs, but, your Honour, it is not a case where everything was thrown in at all but a difference of view taken about matters that might properly be referred to.

GLEESON CJ: Dr Griffith.

MR GRIFFITH: Your Honours, we object to the paragraph 32 of my learned friend’s submissions and also to the summary which he handed up by way of surprise, your Honour, having chosen to have it in his possession and not make it available to us earlier to support that assertion. In our submission, your Honour, what my learned friend is doing is, in effect, saying, “Well, you lost the case. That goes to show that your credit was not worthy of relief, therefore, you had no reason for the application made immediately in the face of a statement which was made.” With respect, your Honour, that is the same sort of error that the Full Court fell into, having regard to the result in the case, to say, “Well, there was a justified view to take an adverse position on credit.”

Our complaint, your Honour, is that the judge foreclosed and demoted the position of the husband at the time of his statement on 19 March, and that is the matter which constitutes the bias, which is not illuminated in any way by the consideration of what happened after or what is the result of the case. Your Honours, we submit that the statement handed to my friend - summary of the husband’s case being in disarray - should not be received and should not be relied upon by the Court. We submit that this case did come up to the Court as a short point. It would be inappropriate even for me to ask for leave to put in what could be a long statement supported by, perhaps, 2,000 or 3,000 pages of documents to indicate that it was appropriate at each step of the matter for the husband to conduct the case as he did.

We say, your Honour, that is a matter irrelevant to inquiry and our submission is paragraph 32, the documents of my learned friend’s submissions put in support of it, and also his references, your Honours, of the transcript that there were points where the husband said, “I do not know”, is not surprising, your Honour, when we have transactions which took some 400 or 500 pages of summary of judgments to deal with that there may be matters that the husband does not know. With respect, that does not illuminate the issue to be determined, namely whether there was a case of apprehended bias by reason of the judge’s remarks, having regard, as we would accept, to all the circumstances as they existed in mid-March 1997, can be illuminated in any way by the citations that my learned friend gave you.

Your Honours, at page 585 in 167 CLR Justice Toohey referred to the question of the attributes of the reasonable bystander which, of course, is a statement picked up in the citation made by my learned friend in Webb 181 CLR 51. At page 585 his Honour referred to, at about point 2:

But, in this regard, the public perception of the judiciary is not advanced by attributing to the reasonable or fair-minded 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.

The essence of our submissions, your Honour, is that with adaptations to the circumstances of this case, this would be the perception on 19 March by the reasonable or fair-minded observer, your Honour, as to the content of his Honour’s remarks as made on 19 March. It is our submission that that reasonable apprehension of bias would not be an apprehension which would be removed by the statements made on 20 March, but that the circumstances of the statement, saying, in effect, I did not say that, I was saying something else, would go to exacerbate and make the reasonable bystander more anxious.

In our submission, that is the matter for relevant inquiry on this narrow point raised for appeal in this Court and, your Honours, for the reasons we state concisely in paragraphs 2 and 3 of our submissions and our propositions of support, we say that ground of apprehended bias is made out and not one which is by reference to the particular capacities and confidences of judicial offices executing their judicial duties according to their oath to lead to a result whereby it is said, well, that might have been the words used, but his Honour did not mean it; there is some other characterisation to be given and one which is consistent with a finding of no bias.

In our submission, when one looks at what was said in all the circumstances that went before on 19 March, when one is taken to the reformulation of the judge of his position on 20 March, one gets to the position that the reasonable bystander would say that it is unlikely that the person would conclude that his Honour was showing no bias against the issue of credit; in particular, that of the husband.

CALLINAN J: Dr Griffith, had Mr Jackson’s client been cross‑examined by that stage?

MR GRIFFITH: Yes, your Honour.

CALLINAN J: Well, why might that statement not involve a tentative rejection of her oral evidence?

MR GRIFFITH: Your Honour, that is three points covered by Watson’s Case, to say the fact that it involves one or other of both is, nonetheless, objectionable.

CALLINAN J: No, I said “tentative”.

MR GRIFFITH: Your Honour, is not expressed as in a tentative way. It is expressed as being universal, your Honour: “I will decide principally”.

CALLINAN J: So I take it you would complain, even if that were to be read as some sort of implied criticism of the wife’s evidence?

MR GRIFFITH: Yes, the test would be satisfied, your Honour.

CALLINAN J: You would make the same complaint – I know what Watson’s Case says but I do not know whether it can be read as applying to all situations of this kind.

MR GRIFFITH: Your Honour, my learned friend makes the assumption that at that stage it was a losing case. It was not. It was a case that was

warning up. It had another 46 days to go. Mr Hedges had not appeared as the pinnacle of the case. One did not know he was going to do a runner after the first day. All these were in the future. Your Honour, it was a question of responding as was counsel’s duty if the issue of bias was to be raised as the issue was to be raised, otherwise there would be a waiver.

Your Honour, it is plain that expressions of credit in the terms we say they were expressed were against one or other party, or here both, your Honour, we say for the reasons stated in Watson are objectionable and once the reasonable bystander says, “To me that seems to be there’s the requisite apprehension of bias”, we say that is determinative. If the Court pleases.

GLEESON CJ: Thank you.

MR JACKSON: Your Honour, may I say just one thing in response to what my learned friend said about the document I handed up? Could I say, your Honours, two things. The first is that the document was prepared as some notes for oral argument and with the passage of time it became obvious that the Court that it might need to be briefer and, your Honour, that is why the Court was given it in that form.

KIRBY J: Yes, but Mr Jackson, you had sufficient copies for the Court. It seems a little ‑ ‑ ‑

MR JACKSON: Your Honour, I was going to say your Honours may feel free to destroy it or if your Honours want to give my learned friend time to respond to it, I have no objections.

MR GRIFFITH: Your Honour, I maintain my objection. We do not want to respond to it because we say it is a hare and we say it should be rejected.

GLEESON CJ: If it becomes necessary to deal with that point, then we can deal with it in our reasons for judgment.

MR GRIFFITH: Thank you, your Honour. I should add, your Honour, the proposed order – the Court may delete the last phrase “other than Justice Anderson” because he has retired.

GLEESON CJ: What you want is a new trial?

MR GRIFFITH: Yes, your Honour, but we say “other than Justice Anderson” that is not necessary. He is not there any more.

GLEESON CJ: We will reserve our decision in this matter and we will adjourn until 10.15 tomorrow morning.

AT 4.32 PM THE MATTER WAS ADJOURNED

[2000] HCATrans 205

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Appeal

Jurisdiction

Costs

Procedural Fairness