Johnson v Johnson

[1999] HCATrans 362

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P19 of 1999

B e t w e e n -

BRIAN GODFREY JOHNSON

Applicant

and

KATHLEEN JOHNSON

Respondent

Application for special leave to appeal

GAUDRON J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 21 OCTOBER 1999, AT 10.17 AM

Copyright in the High Court of Australia

MR N.J. YOUNG, QC.:  May it please your Honours, I appear with my learned friend, DR R.S. INGLEBY, for the applicant. (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)

GAUDRON J:   Yes, Mr Young.

MR YOUNG:   May it please the Court, this case raises the question whether a statement by a judge that prejudges the credibility of a key witness’s oral evidence ‑ ‑ ‑

GAUDRON J:   The question is does it do that, is it not?  That is the first question.

MR YOUNG:   That is the first question, your Honour.

GAUDRON J:   Yes.

MR YOUNG:   The second question is whether, if it does, that reasonable apprehension can be dispelled or removed by a statement of the kind made by the judge when he gave his ruling.  Now, the ruling and the statement are set out in the application book between pages 592 and 600.  It is our submission that the statement made by the judge which appears at the foot of page 592 did give rise to a reasonable apprehension of bias in the mind of a fair-minded observer that the trial judge might not bring an impartial and unprejudiced mind to the adjudication of the case.

HAYNE J:   Does it follow, then, that you say that there is no question of principle, but the application of the principle you have just described to the particular facts?

MR YOUNG:   No, we say there is a question of principle because if the submission I just put is correct, namely that that statement did, in line with Armstrong, raise a reasonable apprehension of bias.  The principle is whether that apprehension can be displaced or removed by a statement of the kind that followed when application was made to the judge and the judge gave his ruling.  That matter is touched upon, but only touched upon in three decisions in this Court.  Our researches indicate that there are no cases in the United Kingdom, Canada or US addressing the question whether such an apprehension can be removed by a later statement by the judge of the kind here in question.

Let me indicate what the cases are.  The first is Vakauta with which the Court is, no doubt, familiar.  The statements in the case are dicta because the case was concerned with waiver by not raising an objection.  In the judgment of Justices Brennan, Deane and Gaudron, at 572, point 6, dicta appears that the preconception identified by the judge’s comments in that case may have been able to be corrected, it went no further than that.  Justice Dawson expressed the view which he had previously expressed in JRL that statements amounting to a preconception about particular witnesses and their evidence based on prior cases may not be capable of eradication.  That appeared at 575, point 9.  Justice Toohey said this, and I paraphrase it, if the judge acknowledges the apparent bias in what has been said and takes steps to dispel it, it may be premature for him to withdraw.  That is a 587, point 6.  Justice Toohey premised that possibility on an acknowledgment that the statement did give rise to a reasonable apprehension of bias.

The other case that comes closes to the issue is the JRL Case.  That was a case concerned with a reasonable apprehension of bias based on private communications between a Family Court counsellor and a judge.  What followed was that the judge disclosed the private conversations to both counsel for both parties, first in his chambers, and then in open court.  Justice Mason wrote what might be described as the leading judgment.  His Honour concluded that the reasonable apprehension of bias was not dispelled by the judge repeating and disclosing the private communications in open court.  The judge noted that there was no acknowledgment when that was done of the fact that those private communications would have generated a reasonable apprehension of bias. 

Justice Dawson repeated his comment that reasonable apprehension of bias based on preconceptions about the evidence of witnesses may not be capable of eradication, but in this case, the issue being one of private communication, his Honour thought it was dispelled by what the judge did in open court.  The other judges, none of them dealt with the issue, but it might be thought that the judgment of Chief Justice Gibbs and Justice Brennan implicitly took the view that what the judge did in open court did not dispel the reasonable apprehension of ostensible bias.  Justice Wilson thought that there was no reasonable apprehension of bias.

GAUDRON J:   That, I would have thought, is where you have to start in this case, in context.

MR YOUNG:   Yes.

GAUDRON J:   You have to assume, do you not, that the reasonable bystander knows it is a case concerned with property, not all of which is in this country, and which in any event was necessarily going to involve some examination of documents?

MR YOUNG:   Yes, I will come directly to that, your Honour, but can I just complete with one other reference.  Livesey is the other case.  Two judges of the Court of Appeal had expressed views in another case about a key witness who was going to reappear or might reappear in the second case.  The judges said in ruling that they would have no difficulty in deciding the case before them on the evidence led in that case.  That ruling did not dispel a reasonable apprehension of bias.  But they are the cases, so far as we can see, that deal with the question of removing or dispelling bias.

Can I come directly to your Honour’s question.  Three aspects combine, in our submission, to make it clear that the statements did generate a reasonable apprehension of bias in the sense described in Livesey, first the context ‑ ‑ ‑

GAUDRON J:   That is to say that an adverse finding had been made as to the credit of the party.

MR YOUNG:   Not an adverse finding, but the judge had determined that he would approach the case on a basis that either wholly or in substantial part demoted the credibility of the oral evidence which was going to be the key issue in the case.  I say that for reasons I was about to come to.  The first is the context in which the statement was made.  The issue in the case, the key issue, was whether assets held offshore by Mr Hedges, and entities associated with him were in truth held for the husband.  That was an allegation of the wife based, so far as her evidence went, on little more than an assertion.  She relied upon evidence of various historical transactions, transactions that did not give rise to the assets in question, but transactions that showed a past association between Hedges, the husband and various entities.

The husband, therefore, was confronted with a case in which he had to prove the negative.  He had to prove that documents that showed the title and the assets rested in Hedges or various other companies were not in truth held for him.  His oral evidence was critical on that issue.

GAUDRON J:   Mr Hedges?

MR YOUNG:   No, the evidence of the husband.  His oral evidence was critical, as was his denial of various contentions about these particular transactions.

HAYNE J:   It was critical in the way the trial developed, where Mr Hedges attended and did not remain for the balance, it seems, of the cross‑examination intended, but yes, no doubt the husband’s evidence was important.

MR YOUNG:   Yes, your Honour, but these statements are made immediately before the husband gives his evidence, and they are made before the events occur to which your Honour is referring.

HAYNE J:   Yes.

MR YOUNG:   The statements were made by the judge that he would rely principally ‑ ‑ ‑

HAYNE J:   But ordinarily one would have expected, would one not, with this sort of allegation on the table, to hear from both ends of the supposed holding transaction, one would ordinarily have expected to hear not only from the husband, but also from Mr Hedges, would one not?

MR YOUNG:   Yes, your Honour, but that is not meeting the point about what the judge said about the ‑ ‑ ‑

HAYNE J:   Yes, I understand the way you put it.

MR YOUNG:    ‑ ‑ ‑ oral evidence of the husband.  The husband was on the brink of giving oral evidence.  The wife had given her evidence and at that point the judge expressed a view which it earlier expressed, we would say, but this time more forthrightly, that he would rely principally on witnesses other than the parties in this matter and documents to determine where the truth lies.  That statement could not more plainly demote the credibility of the oral evidence of the husband that he was about to hear.  It indicates that he was not prepared to approach oral evidence given by the husband with an open mind.  It is a different matter whether at the end of the case, having heard all the evidence, such evidence as was given by Hedges, the judge could form a view.  Of course he could, but this is before the event.

The cases are clear, we would say Watson and Vakauta, that a judge cannot make a statement that expresses in whole or in part a settled view about the credibility of oral evidence.  He says, “I have a closed mind to some extent”.  That betrays, or at least would suggest to a fair-minded observer, that the judge might not bring an impartial mind to the assessment of that oral evidence.  He has a frame of reference that he has declared that he is not going to give full, frank and open consideration of the oral evidence that he is about to hear.  He discounts it from the outset, without having heard it and, in our respectful submission, the timing of the statement, the nature of the issues in the case and the content of the statement indicates that, to some extent at least, his Honour had prejudged the credibility of the oral evidence in the case, and especially the oral evidence that he was about to hear from the husband, and he was, we say, plainly, to the mind of any fair-minded observer, saying more, much more than he would take account of all the evidence, and he would weigh it all up in the end.  He was demoting the oral evidence that he was about to hear to, effectively evidence of last resort, if that.

When the judge came to deal with the application that he disqualify himself, he made the ruling that appears at 595.  It is our submission that what the judge said in that ruling does not address or confront the statements he made or their impact upon a fair-minded observer.

HAYNE J:   The statement is made at a point where the judge had read affidavits.

MR YOUNG:   Yes, your Honour.

HAYNE J:   In that sense, he has taken the evidence in-chief of the parties, in that sense.

MR YOUNG:   In a loose sense, yes, your Honour.  He has certainly read the affidavit ‑ ‑ ‑

HAYNE J:   And thus has identified that there is a clear clash of oath.

MR YOUNG:   He has identified, your Honour, yes, a clear clash of oath but only in this special sense:  that the wife, in her affidavit, made a series of claims.  She was not so much giving evidence about the facts, as making a series of claims or allegations ‑ ‑ ‑

HAYNE J:   All of which were denied ‑ ‑ ‑

MR YOUNG:   By the husband.

HAYNE J:    ‑ ‑ ‑ you would say, with sufficient detail, as well.

MR YOUNG:   Yes, your Honour.

HAYNE J:   Yes.

MR YOUNG:   In that respect, the case is identical to Watson.  It is exactly what happened in Watson.  The judge had read the affidavits, came to the Bench and expressed the view that he would require corroboration of any evidence.  In our respectful submission, it is identical to Watson, and there the Court said that what a judge cannot do is to make a declaration that in any way prejudges the credit of the evidence that he is about to hear and applies a non-legal or extra-legal requirement that he is going to require corroboration for evidence he has not yet heard.

HAYNE J:   You say that is sufficient and conclusive and that, therefore, by the application of known and accepted principles, the case is resolved in your favour, period.

MR YOUNG:   No, your Honour, no.  That brings one to the next issue which I am endeavouring to address which is ‑ ‑ ‑

HAYNE J:   Which is an answer made by the opposite party, no, it was cured.

MR YOUNG:   Yes, your Honour.

HAYNE J:   Your case stopped at saying, “There is Watson, this is the same, good morning, your Honour”.

MR YOUNG:   Your Honour, our case is that when one carefully examines the statement, its background, content and timing, it was such as to generate a reasonable apprehension of ostensible bias.  Now, it that is correct ‑ ‑ ‑

GAUDRON J:   How?  Yes, that is the point at which I have some difficulty, whether a reasonable bystander would see this as a question of demand where the trial judge was saying this demands corroboration, as it were, in the Watson sense, or whether the trial judge was saying these are matters in respect of which the best proof is to be found elsewhere.

MR YOUNG:   No, with respect, your Honour, that is not what the statement says.  The statement is not what other documents will be looked to.  The statement is quite dogmatic:

I will rely, principally, on witness other than the parties in this matter – and documents – to determine where the truth lies –

There is a noticeable difference between the actual statement that is made ‑ ‑ ‑

GAUDRON J:   But in so far as Mr Hedges’ relationship with the parties was there, why would you not say, the best evidence is going to come from Mr Hedges and the documents?

MR YOUNG:   Well, it is not just that, your Honour, because, of course, the documents that were in evidence indicated that the assets offshore were held by Hedges and various other entities, so what had to be relied upon ‑ ‑ ‑

HAYNE J:   And on the husband’s case, “I know nothing about these, these are Hedges”.  What is the husband’s evidence, in a sense, got to do with any of it, other than that bare denial, “I know nothing of this”.

MR YOUNG:   Well, your Honour, that is an oversimplification of what the evidence was.  The evidence was not ‑ ‑ ‑

HAYNE J:   It is.

MR YOUNG:   It is, but the question is not to be judged by what, at the end of the day, all the evidence gathered together would be capable of establishing.  The question is, simply, did the judge make a statement that a fair-minded observer would take as indicating the judge was not going to approach oral evidence in a fair-minded way  ‑ ‑ ‑

GAUDRON J:   Or that the oral evidence was not going to be the best evidence in this case.  They are the two competing claims, are they not?

MR YOUNG:   Well, your Honour, that is where we say the Full Court fell in an error because the Full Court never assessed the impact of the statement that was complained on and which led to the ruling.  They went to the judge’s explanation at 595.  That explanation did not address the statement that was made.  It represented a statement of what the judge’s intentions were, but it certainly did not address the impact of the statement on a fair-minded observer, because what his Honour said was this, in effect:

My statement merely affirms my need to look to the other evidence…..I was merely saying that the other evidence was important –

Now, that is effectively a statement of the judge’s intentions.  It is not a statement that addresses the impact of what he, in fact, did say on the mind of a fair-minded observer; and that being so, one really cannot roll the two together as the Full Court did at page 600, and to say, as they did at page 600 in 22.31 at about line 30 on the page:

his Honour was attempting to say no more than he had said earlier, namely that where the parties stories are greatly divergent external evidence is important in finding where the truth lies.

At about line 42:

It is merely foreshadowing the obvious:  that documentary or objective evidence may prove to be a more reliable indication –

What your Honour has put to me as what the judge must have meant is, in fact, what the Full Court says.  We say that that is an attempt to recast or reformulate what in fact was said, aiming at the judge’s underlying intentions, but that really is not the crucial issue.  The crucial issue is the impact of what was said, not what might have lay behind that in the judge’s mind, but the impact of what was said on a fair-minded observer, and it is our respectful submission that to say, “I will rely principally on documents and witnesses other than the parties”, is to be seen in the same light as a statement that “I will require corroboration”.  It is that “I will demote the oral evidence I am about to hear”.  That is a prejudgment as to credibility, and if we are right about that, it is our respectful submission that there is a real question of principle whether it can be corrected in the manner suggested.  There is no suggestion in any of the cases that a statement that demotes credit about the witnesses in the instant cases can ever be corrected or the prejudice or reasonable apprehension of bias ever removed.

GAUDRON J:   Now, you had some other points in your application.

MR YOUNG:   We do, your Honour, we pursue only one of them.

GAUDRON J:   When you say you pursue only one, I take it the others are abandoned, whether or not special leave is granted.

MR YOUNG:   No, we abandon the point about the valuation.  I will state the point about materiality which we rely upon, your Honour.  It is this:  the Full Court case in De Winter contains two relevant passages.  One is in the judgement of Justice Gibbs where his Honour says that if findings by a trial judge which are found to be incorrect influence the ultimate decision, then the decision can only stand if it is plainly correct.

GAUDRON J:   Yes, but in the context of a 66 day factual context, that does not sound like a point that is one that should ‑ ‑ ‑

MR YOUNG:   The short point is, your Honour, that although referring ‑ ‑ ‑

GAUDRON J:   One may be able to understand the short point, but can it be disinterred from 66 days of evidence?

MR YOUNG:   Yes, your Honour, because every time the Full Court dealt with one of the findings and its materiality, the formula they applied was this finding was open on the basis of other evidence.  That approach might find a basis in Justice Mason’s reasons in De Winter.  It would not be supported by Justice Gibbs’ approach in De Winter which is, it must be more than open, it must be plainly right on the basis of the other material before the Court.  The Full Court has preferred to adopt the approach that

might ordinarily be adopted in appellant proceedings:  was it open?  We say that is not the test and this Court ought to clarify that the correct approach is that of Justice Gibbs in De Winter.  If the Court pleases, those are our submissions.

GAUDRON J:   Yes, thank you, Mr Young.  Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  May I deal first with the question of bias, and I want to make a number of submissions about it.  Your Honours, the first is that primary judges’ observations that are the subject of the complaint do have to be taken in the context in which they were made.  The first thing we would seek to say about that is that they were not, of course, made before any evidence had been adduced, but in the context where, as his Honour said on the last occasion, where the affidavit evidence had been read.  He said he had read it for two days and he described the extent to which a conflict of evidence was manifest from that material and because by the time that the observations which he made which are the subject of the complaint, some oral evidence had already been given, the oral evidence on our side, some of which went directly to the issues, of course, as your Honours will recall, for example, to matters such as there having been statements made by the applicant that the interest in an overseas entity was his and had funded the construction of the yacht.

Now, your Honours, the second thing I would seek to say about it is this:  that it is apparent that the judge was not doing something that could create an impression of bias appears from the first occasion on which he said something about the topic.  We have extracted that, your Honours, at the bottom of page 624, in volume III.  Your Honours will see the letter (a) at the bottom of that page “on 24 February 1997”.  What your Honours will see, then, is at a very early point in the trial, his Honour saying at top of page 625:

More…..no, to me.  More crucial is what other people know and what documents show…..

His Honour:  When you’ve got two parties –

then a little further down –

who are so far apart as these two are, you know, you really look to, as far as possible, to persons external to them for support of their cases.

Your Honours will recall that what, if one goes to the top of page 626, the next page, the supposed offending remark, he said:

Well, let me go back to what I said at the beginning –

and that takes one back to what is at the top of the preceding page, and your Honours what he said at the top of page 625 is, with respect, entirely orthodox.

Your Honours, if one looks then ‑ ‑ ‑

GAUDRON J:   But it goes a little bit further at 626, “where the truth lies”.

MR JACKSON:   I am sorry, your Honour.  Oh, yes, your Honour.  He says:

rely principally, on witnesses…..to determine where the truth lies.

But, your Honours will see that he said that he was at the same time endeavouring to go back to what he had said at the beginning.  Could I also say, your Honour, one must take this in the context of other statements that were made.  Could I go, for example, to the bottom of page 625, paragraph (c), counsel for the applicant really suggesting that the judge take that course.  Your Honour will see, about line 50, him saying:

Anyone can say that, Your Honour, ad nauseam – “I believe it” – and Your Honour, with respect, ought not to take any notice unless there is some critical basis of fact behind it.

The judge says:

“I’ll come back to what I said before.  As far as these people are concerned I will be looking, insofar as it is possible, to independent evidence.

GAUDRON J:   Yes, but we do have to look to the reasonable bystander, do we not?

MR JACKSON:   Indeed, your Honour.

GAUDRON J:   Had the trial judge said, “Given the issues in this case, I will be looking to documentary proof”, or something like that.  That would have been one way of dealing with it, to locate it to the issues and how they might be proved as distinct from saying it, “As far as these people are concerned, as one where the truth lies” ‑ ‑ ‑

MR JACKSON:   Well, your Honour, could I just seek to say this.  The judge’s observation on 19 March, at the top of page 626 is prefaced by him saying that he is endeavouring to say what he said at the start which takes him to the top of page 625 – he is not endeavouring to say anything different – and at the top of page 625 he is, with respect, saying just what your Honour put to me, and that is:

When you’ve got two parties  ‑ ‑ ‑

who are so far apart as these two, you know, you really look to, as far as possible, to persons external to them for support of their cases.

GAUDRON J:   That is not a universally correct statement, though, is it?  If you had that statement made in the context of an assault charge, for example, even in civil proceedings, it would be capable of only one meaning, would it not?  Well, a reasonable bystander would take only one meaning from it.  If the meaning is not to be taken in this case, it is because of the matters in issue and how they could be proved, is it not?

MR JACKSON:   Your Honour, could I just say this.  His Honour was not talking in the abstract in any of this.  He was talking about a particular case that was there where the essential issue was whether, in respect of the overseas assets, Hedges was or was not a dummy for the husband, and in relation to those issues, he was saying you have people who are as far apart as these, you look to see what the other evidence is.  Your Honour, it really goes no further than that.  That is, in our submission, what he said throughout the whole matter.  There really is no reason, if I could just interpolate, your Honours, why one should him when he says, “insofar as it is possible”, as suggesting, other than possible, in the light of the evidence, and legally possible.

Your Honours, the next thing we would seek to say about it is this, that if one looks at what took place, and that one sees then the judge on the next day – that is, on 20 March – giving his ruling on the matter, what he said on that occasion, in our submission, is really something that must, in the circumstances, have taken place, be something which should dispel any view that there might have been a bias.

Your Honour, if I could go to the cases our learned friend referred to and just say something about them in passing, it is that they do not really support the notion that bias and apprehension of bias cannot be removed.  They really support the notion that it is capable of being removed, but some cases will be ones where it is and some where it is not, it just depends on the particular circumstances.  That is exactly, your Honours, what one might expect to be the position.  If I could take your Honours back to page 595, in paragraph 22.13 where the position is set out rather more fully, your Honours will see in the passage that he refers to the divergence.  He refers to the fact that divergence had “become more apparent as the case has proceeded” and he says:

I was simply pointing out to the parties the wide divergence.  It was going to be a difficult task.

He was not endeavouring to predetermine the “credibility of both parties or either of them”.  Your Honours, we would submit that in a case where as soon as the issue is raised and the issue of bias could only have come from one comment made the day before, it is one that, of its nature, refers back to an earlier non-biased statement and one that conveyed no apparent bias.  In those circumstances, for the judge to explain what he had said should, on any reasonable basis, take away the possible apprehension of bias there might have been.  Your Honours, that is what I wanted to say about the question of bias.

So far as the remainder of the case is concerned, your Honours, this was, as I submitted a moment ago, a case where the central issue was whether Hedges held the overseas assets on his own behalf or for the applicant.  The respondent had given evidence which the judge was entitled to accept of admissions that were made by the applicant.  Your Honours will see those at page 541 and page 543, I give your Honours two examples.  Could I take your Honours, perhaps, to page 541, paragraph 15.2.  You will see at the bottom of that page, 541, reference to the wife’s evidence.  That evidence is at the top of the next page.  So there was evidence from her which the judge was entitled to accept, and similarly, on page 543, about line 30, referring to correspondence that the husband had prepared for Hedges to sign.  Your Honours, there was some oral evidence from her that could have been accepted.

The second thing was that the documentary evidence was very odd indeed, and, your Honours, “bizarre” was the description given to some of it by the Full Court, at page 548, line 44.

Now, your Honours, one would have thought that it was crucial to the applicant’s desire to be believed that there was some corroborative evidence to be adduced, and that that view was taken appears from page 510 at the bottom of the page, under the heading, “The departure of Hedges” and at the top of the next page your Honours will see that the applicant’s counsel had described Mr Hedges’ evidence as:

“where the pinnacle of it all will rest…..He is the man who is saying ‘these are my assets.  They belong to me and only me’”.

So that was to be “the pinnacle” of the case.  But, of course, when Hedges arrived to give evidence, two things emerged.  The first was that he had a memory problem of which there had been no previous mention.  That appears at page 511, lines 11 to 54.  The second feature was that he had a script and the script had been prepared on behalf of the applicant.  That appears, again, at page 511, line 56, through to line 32 on the next page.  Of course, he decamped overnight, no doubt the atmosphere having become somewhat warmer during the previous days cross‑examination.  Your Honours, so that his evidence which was to be “the pinnacle of it all”, as had been said by the applicant’s counsel, was not given.

Your Honours, if one adds to that the failure of another witness at page 510, Seeholzer, his failure to turn up – you will see that at page 510 at about line 24 – for cross‑examination after his affidavit had been used, was a matter that the judge was entitled to take into account, no evidence.  One also had the situation of Dr Ritter’s absence.  That is referred to at page 509, lines 25 to 60.  One of his associates had also given evidence against him in relation to his involvement, that is Baldock, that is page 508, paragraph 10.7.15, that is a summary of it.

Your Honours, one had a situation where, although there were some errors, of course, made by the primary judges, perhaps one might expect in a case of that length, the Full Court was perfectly entitled to take the view that the case was one where the conclusion at which the primary judge arrived was one that was inevitable, and I adopt a relatively high test in that regard.  But your Honours will see also that the Full Court ‑ ‑ ‑

HAYNE J:   Did they approach it from the standpoint of inevitability, or did they approach it from some lesser standpoint?

MR JACKSON:   Your Honour, inevitability puts it too high, but they approached it from that standpoint and that that is so can be seen by the statement of the principles by the Court at page 493, and what your Honours will see is that the passage quoted from De Winter, paragraph 8.4, is the one more favourable to the applicant.  So, your Honours, that is the principle the Court applied and the Court then, having stated the principles, proceeded to deal with the various matters that were said to be mistakes by the primary judge.  Having found some errors – and, your Honours, could I just say in relation to the errors that were found, what one does not see, of course, listed, one by one, are the facts that the judge got right – but having found some errors, the Full Court had to consider the ultimate conclusion, and this was a case, in our submission, where if one stood back from some of the trivia of it and looked at the case overall, one can see, in our submission, that the views which were expressed by the primary judge at page 371 in volume II, under the heading – it is a passage that commences at line 40 and goes to the end of the next page.  The point I want to make about it, your Honours, is this:  that it is a series of observations made by the primary judge.  They reflect a view of the evidence which as much to the Full Court as to the primary judge, in our submission, are manifest common sense. 

Your Honours, could we seek to say, finally, that this is in the end, no matter how much one tries to dress it up, a pure fact case.

GAUDRON J:   Thank you, Mr Jackson.  Yes, Mr Young.

MR YOUNG:   Two points about bias, your Honour.  Our learned friend says you need to take account of the context of the earlier statements and the fact that the observations related to the instant case.  We agree in both respects.  The statement in question went further than the earlier statements.  You cannot alter what was said on the critical occasion by reference to what was said earlier.  They are all to the same effect.  Secondly, the cases make it clear that observations about the instant case are all the more likely to found a reasonable apprehension of bias, and that was exactly the point in Armstrong.  If the Court has that case available , I will just draw attention to the passage at page 264, in the judgment of the Chief Justice and Justices Gibbs, Stephen and Mason, about point 6 on the page.

GAUDRON J:   Would you read that out?  I will extend your time, I do not have that.

MR YOUNG:   Yes, I will, your Honour:

No doubt he had read –

that is the judge –

and considered the affidavits already filed, but he had not seen either party in the witness box, and the matters which led him to hold that he could not believe them 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, 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.

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.

GAUDRON J:   Well, that is the question.  Did this case depend on the credibility of the parties?

MR YOUNG:   It did, your Honour, because the assets in question were not the assets the subject of these transaction, they are history.  The assets were wiped out by that property investment in an English company.  These are assets held from the 1990s, in the name, not just of Hedges, but of various entities.

HAYNE J:   Under-controlled, apparently, by your client?

MR YOUNG:   Yes, your Honour.

HAYNE J:   And thus the controllers of those entities are the ones who primarily would explain for whom they held them?

MR YOUNG:   Yes, but the wife’s evidence, your Honour, was not any evidence dealing with the current control of those entities.

GAUDRON J:   Thank you, Mr Young.

There will be a grant of special leave in this case but confined to the question of bias as formulated in grounds 1, 2 and 3 of the draft notice of appeal at page 611 of the application book.  So far as the other matters are concerned that are raised in the application, we are of the view that those issues turn very much upon the facts of the case and, given the factual matters in issue, this case is not a suitable vehicle for the grant of special leave with respect to those matters.

So far as the bias point is concerned, I presume that case could comfortably be argued within one day?

MR YOUNG:   Yes, your Honour.

MR JACKSON:   I should think so, your Honour.

GAUDRON J:   I assume also that it will not be necessary to reproduce 66 days of transcript or the exhibits in the case.

MR YOUNG:   That is definitely correct, your Honour.

GAUDRON J:   We would expect a slim volume in due course.

HAYNE J:   You note her Honour speaks in the singular.

GAUDRON J:   Call the next application.

AT 11.17 AM THE MATTER WAS CONCLUDED