Ladewig v Department of Main Roads
[2010] QLC 4
•28 January 2010 – Ex tempore
LAND COURT OF QUEENSLAND
CITATION: Ladewig v Department of Main Roads [2010] QLC 0004 PARTIES: Raymond C Ladewig
(claimant/applicant)v. Chief Executive, Department of Main Roads
(respondent)FILE NO: AQL 117-07 DIVISION: Land Court of Queensland PROCEEDINGS: Hearing of an application HEARD ON: 28 January 2010 DELIVERED ON: 28 January 2010 – Ex tempore DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: Mr RS Jones CATCHWORDS: Bias – Reasonable apprehension of basis – Member of Court having acted previously as a barrister for one of the parties – test to be applied – relevant considerations APPEARANCES: Mr G Diehm SC, instructed by Butler McDermott, Lawyers for the claimant/applicant
Mr D Quayle instructed by Crown Law, for the respondent
HIS HONOUR: Mr Ladewig is a claimant for compensation under the Acquisition of Land Act 1967. The claim arises out of the taking of land by the Chief Executive Department of Main Roads, the respondent in these proceedings.
I've been responsible for the conduct of this matter since the retirement of Mr Scott from this Court in July 2009. On 21 September 2009 I made a series of orders the more relevant being that the claim for compensation be listed for hearing at Brisbane commencing 15 March 2010 through to 23 March 2010. I was to be the Member of the Court to hear the matter.
The claimant now seeks orders to the effect that I save myself and stand down from hearing the matter. The basis for the application arises out of correspondence dated 4 January 2010 from the Office of Crown Law to my Registrar.
The correspondence relevantly states, "Prior to his appointment to the Land Court, his Honour Mr Richard Jones, who has the conduct of this case and is to hear the trial, was briefed by the respondent on or about 7 July 2003 with a copy of the Deed of Agreement dated 11 December 2001 and was asked to consider the Deed in anticipation of a conference with representatives of the respondent. Subsequently a conference was held between Mr Jones and the respondent's officers on 8 July 2003 during which Mr Jones provided some oral advice in relation to the Deed. Mr Jones' past involvement in this matter has only recently come to light." The letter goes on to point out that it is unclear the extent to which, if any, the Deed of Agreement might play in the hearing to the action.
As I've already indicated the claimant objects to my continued involvement in the case. The respondent neither supports nor opposes the applicant's position. I should point out that I have no recollection of any dealings with this matter as a barrister and certainly no recollection of the contents, nature and effect of the Deed in question nor of the advice given. I should also point out that there has been no suggestion that I've displayed any bias towards any of the parties in respect of the past conduct of this matter.
It seems to be common ground that the only basis upon which I could be required to save myself is that there was apprehended bias. The relevant test here is whether a fair minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question the Judge is required to decide. If authority is needed I refer to the High Court decisions of Johnson v. Johnson 201 CLR 488 and Ebner and Ors v. The Official Trustee in Bankruptcy 205 CLR 337.
A similar test has also been enunciated by Superior Courts of the United Kingdom. The test effectively being whether the fair minded and informed observer having considered the facts would conclude that there was a real possibility that the Tribunal was biased. I think it's important to note that the lay observer is assumed to be an informed person.
Relevant considerations are first, any involvement I've had with this matter is now some nine and a half years in the past. Second, it is unknown what, if any, role the Deed might have in this matter nor for that matter is it known how any advice I have given may or may not be brought into question. Not in a direct way, but in the sense that the accuracy of my advice about the nature and effect of the Deed might be a matter that could raise its head during the hearing.
Turning to the other matter, about the observer being an informed observer, the cases suggest to me that it ought be assumed that that observer would be aware that Judges are required to and do approach cases with an open mind and decide the cases before them according to the facts and the relevant law pertaining to those facts. It must also be assumed that they would recognise that persons who have been appointed to the Court are likely to have had personal relationships, sometimes strong ones, with those that appear before them. More often than not as lawyers for one of the parties but on occasions as litigants.
It is also a relevant consideration that those discharged with the duty to hear and determine matters do not act in an overly cautious and precious manner. In this context it is relevant, in my opinion, that this Court is a small one and if I were to stand down as the Court presently stands there would only be one other member available to hear the matter. The other full time member has commitments of various kinds which are likely to occupy his time through to some time around June/July of 2010.
As I have already alluded to, it has been recognised that prior professional relationships between the adjudicator and one of the litigants need not necessarily constitute an apprehension of bias. In Aussie Airlines v. Australian Airlines 135 ALR 753 his Honour Justice Merkel at pages 760 to 761 cited with approval passages from two cases in particular. Namely Raybos Australia Pty Ltd v. Tectran Corporation Pty Ltd (1986) NSWLR 272 and a case to which I was referred during argument being Re Polites; Ex Parte Hoyts Corporation Pty Ltd 173 CLR 78.
In respect of the first of those cases it was said "It has long been accepted that a Judge should not sit on a case involving a person with whom he has a connection which might in fact or in appearance affect his impartiality. When the Judge's connection is less than that there is no reason why he should not sit."
In respect of the second decision, Polites, the High Court at pages 87 to 88 said, "A prior relationship of legal adviser and client does not generally disqualify the former adviser on becoming a member of a Tribunal (or of a Court for that matter) from sitting in proceedings before that Tribunal (or Court) to which the former client is a party. Of course, if the correctness or appropriateness of advice given to the client is a live issue for determination by the Tribunal (or the Court) the erstwhile legal adviser should not sit a fortiori. If the advice has gone beyond an exposition of the law and advises the adoption of a course of conduct to advance the client's interests the erstwhile legal adviser should not sit in a proceeding in which it is necessary to decide whether the course of conduct taken by the client was legally effective or was wise, reasonable or appropriate. If the erstwhile legal adviser were to sit in a proceeding in which the quality of his or her advice is in issue there would be reasonable grounds for apprehending that he or she might not bring an impartial and unprejudiced mind to the resolution of the issue. Much depends on the nature of his or her relationship with the client, the ambit of the advice given and the issues falling for determination."
And after considering the advice given the High Court went on at page 91 to say, "In that context the advice merely detailed available negotiating options. In particular it carried no recommendation as to the wisdom, reasonableness or appropriateness of the course of action indicated whether generally or in the limited circumstances in which that advice was given. In the light of these considerations and the fact that appointees to the Commission will often have had a close association with parties before or with issues to be determined by the Commission it would not be open to the parties or a member of the public to entertain a reasonable apprehension that by reason of the advice given in the quite different circumstances of 1986 Mr Deputy President Polites might not bring an impartial and unprejudiced mind to the assessment of the prosecutors' conduct in 1988 or to the determination of appropriate wages and conditions … ."
Also in this context the majority of the Court of Appeal in the case of S & M Motor Repairs (1988) 12 NSWLR 358 determined that the Judge was not required to disqualify himself where he had, as a barrister, acted extensively for one of the parties. It would appear from my reading of the case that the particular barrister's involvement was such that he could be described as being the particular litigant's favourite barrister. I should point out here though that Justice Kirby who was then the President of that Court dissented.
There are, in my opinion, strong reasons why I should not save myself from this case. However, it has to be borne in mind that in this particular case I acted for the respondent, presumably for reward, not simply as a barrister who frequently acted for that party but as a barrister with some direct involvement in this particular case. While I'm confident of saying that I have no recollection of this matter, perhaps not surprisingly given the passage of time, I cannot with confidence say that as the case progresses my memory of the case and certain views that I formed about it might not come back to me. That, of course, of itself would not in my opinion be a sufficient ground to stand down but I think it is one of the matters that need to be brought into account.
Further, it cannot be discounted that the force and effect of the Deed in question might become an issue in the hearing. That could raise the possibility of me having to decide whether or not the advice that I gave ought to be upheld or differed from.
Further, while the contents of the Deed might now be a matter of public record the details and nature of my advice to the respondent is not. The respondent has not disclosed those details. This is a point of distinction between this case and Polites. This is certainly not a matter of criticism of the respondent as there may be any number of good reasons why it has not done so including that it has no longer any record or recollection of what I said. That said though this lack of information is a relevant consideration. Another consideration is that the respondent has not pressed that I stay in the case.
Finally, I should note that I have approached the President of this Court who has advised me that she is likely to be available to hear this matter on the allocated dates. In all the circumstances I consider that the balance leans very slightly in favour of my not continuing to deal with this matter on the basis of there being apprehended bias. I wish to point out, however, that I have reached this conclusion with considerable reluctance and, but for the attitude of the respondent in this matter and the fact that someone is available to deal with the matter on the allocated dates, I probably would have refused the application.
Finally, notwithstanding my decision to stand down, Counsel for both sides agree that that should not prevent me from making consent orders dealing with the steps to be taken before trial and accordingly I made those consent orders as per the draft.
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