Lawrance v The Commonwealth of Australia and Ors (No.2) - [2007] FMCA 797

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LAWRANCE v THE COMMONWEALTH OF AUSTRALIA & ORS (No.2)

[2007] FMCA 797

HUMAN RIGHTS – Procedure – application for disqualification refused.

Lawrance v Commonwealth of Australia & Ors (No.1) [2006] FMCA 1792

Concrete Pty Limited v Parramatta Design and Developments [2006] HCA 55, 231 ALR 633

Applicant:

AROHA LAWRANCE

First Respondent:

THE COMMONWEALTH OF AUSTRALIA

Second Respondent:

THE STATE OF NEW SOUTH WALES

Third Respondent:

THE SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

Fourth Respondent:

THE GENERAL MANAGER, CRS AUSTRALIA

Fifth Respondent:

THE AUSTRALIAN GOVERNMENT SOLICITOR

Sixth Respondent:

ANDRAS MARKUS

Seventh Respondent:

THE REGISTRAR, FEDERAL COURT OF AUSTRALIA

Eighth Respondent:

KIM LACKENBY

Ninth Respondent:

MICHAEL WALL

Tenth Respondent:

MICHAEL PACKER

Eleventh Respondent:

JOHN PETKOVSHEK

Twelfth Respondent:

JULIET CURTIN

Thirteenth Respondent:

GERARD ENGLISH

File Number:

SYG 2015 of 2006

Judgment of:

Smith FM

Hearing date:

18 May 2007

Delivered at:

Sydney

Delivered on:

18 May 2007

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First and Third to Thirteenth Respondents:

Ms D Watson

Solicitors for the First and Third to Thirteenth Respondents:

Australian Government Solicitors

Counsel for the Second Respondent:

Mr P Moorhouse

Solicitor for the second Respondent:

I V Knight, Crown Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2015 of 2006

AROHA LAWRANCE

Applicant

And

THE COMMONWEALTH OF AUSTRALIA

First Respondent

THE STATE OF NEW SOUTH WALES

Second Respondent

THE SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

Third Respondent

THE GENERAL MANAGER, CRS AUSTRALIA

Fourth Respondent

THE AUSTRALIAN GOVERNMENT SOLICITOR

Fifth Respondent

ANDRAS MARUS

Sixth Respondent

THE REGISTRAR, FEDERAL COURT OF AUSTRALIA

Seventh Respondent

KIM LACKENBY

Eighth Respondent

MICHAEL WALL

Ninth Respondent

MICHAEL PACKER

Tenth Respondent

JOHN PETKOVSHEK

Eleventh Respondent

JULIET CURTIN

Twelfth Respondent

GERARD ENGLISH

Thirteenth Respondent

REASONS FOR JUDGMENT

(revised from transcript)

In this matter, I published a judgment given on the 17 November 2006 which explains the background to the proceeding, when addressing issues arising from the applicant’s application to join additional respondents (see Lawrance v The Commonwealth of Australia & Ors (No.1) [2006] FMCA 1792). I shall not repeat that background. The applicant subsequently filed an amended application naming the current respondents as set out above.
On 12 January 2007, the applicant filed a notice of motion which, in effect, seeks that I should disqualify myself from the further case-management of the matter and from conducting its eventual hearing “on the ground of bias”. Today, in support of that application, the applicant referred to both actual bias and apprehended bias as the grounds of her application.
In support, she relied upon her affidavit filed on 12 January 2007, which I have read. She made submissions referring me to my published judgment, in particular, making criticisms of my reasoning in paragraphs [22], [26], [32], [46] and [56]. Her criticisms repeated the points made in her affidavit.
In relation to [22] of my judgment, the applicant complained that I suggested that she was attempting to raise “old allegations” against the proposed additional respondents, and argued that this was erroneous and gave rise to an apprehension of bias on my part. However, I consider that her criticism is misplaced, since it misunderstands a general statement which I made as to the scheme of the legislation, and takes it to be personally directed. If it were read that way, then that is not the intention with which I gave that part of my judgment. I do not consider that it would cause a concern to a fair minded lay observer according to the well-known principle recently applied in Concrete Pty Limited v Parramatta Design and Developments [2006] HCA 55, 231 ALR 633, at [110]. This poses the test of whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.”
In relation to [26] of my judgment, the applicant today denied that she had legal qualifications and experience, and submitted that this paragraph contained an error of fact. However, even if it did contain an error of fact in its reference to “and experience”, I do not consider that this would appear to reflect any actual bias, nor that it might cause a reasonable apprehension that I did not, or might not, bring an open mind to the determination of issues arising in this matter.
If there actually were any inaccuracies of fact in my judgment, then the applicant will have the opportunity to correct them in the course of the future hearings in the matter. I remain open to correcting any factual error which might be material to the eventual decision in the case. I note that none of the matters which she has put to me today causes me to doubt the substance of my conclusions and reasoning in that judgment.
In relation to [33] of my judgment, I have refreshed my memory of the applicant’s written complaints to HREOC which I attempted to summarise in that paragraph, and do not accept that it contains any inaccuracy in its summary. I do not consider anything in that paragraph might cause a reasonable apprehension that I would not bring an open mind to determining the complaints, which I have held constitute the subject matter of the present proceeding, when I come to decide the merits of the matter.
In relation to my reasons in [46]-[56] of my judgment for declining to make an anonymity order, the applicant now disclaims suggesting to me any concern about being caused distress and embarrassment by being identified as the applicant in this case. I do not have a transcript of what was said by her on 17 November 2006 when making the application for anonymity, and no party has tendered one to me today. I have no clear memory of her submissions, and can only assume that that transcript will show her making a reference to distress. It is also possible that I thought that she displayed some distress at the thought of being refused anonymity. On the present evidence, I am not persuaded that my judgment contains any inaccuracy in my reference to her submissions.
Moreover, if my reference to “distress and embarrassment” made any mistake of fact as to the content or effect of her submissions, I do not consider that my taking into account the possibility that publication of her name might give rise to embarrassment and distress, “and even emotional damage”, shows actual bias on my part. Nor do I consider that this might cause a fair minded lay observer reasonably to apprehend that I might not bring an impartial mind to the further management of this case and to its eventual decision. Indeed, I remain of the view, that it was appropriate for me to take these matters into consideration, when considering the making of an anonymity order in accordance with the authorities which I cited in my judgment.
The applicant's other complaint is that in the course of the hearing on 17 November 2006 I “yelled” at her. That is not conduct which I can recall happening. My memory of the hearing is that generally it was conducted in a temperate atmosphere, in which all persons behaved appropriately. However, I do recall there were a few occasions when I spoke sharply to the applicant. These were instinctive judicial responses to actions by the applicant or statements of the applicant which I thought could develop into inappropriate disruptions to the hearing of the application for joinder. I do not consider that a lay observer at the hearing might have felt a relevant apprehension arising from how I conducted the hearing.
It was a hearing which was difficult to manage, since there were numerous respondents or proposed respondents who were present in person or by representatives, and since the applicant was endeavouring to present her own arguments on the issues of joinder, examining the content and scope of her complaints to HREOC. It should be apparent from my earlier judgment that the nature of the applicant’s complaints about people who were present in court, was capable of creating tension in a Court room. On one occasion, the applicant made an accusation against a legal representative sitting at the bar table, which I considered to be unwarranted, disruptive and deserving of an apology. On my recollection of that incident, I do not consider that it displayed conduct by a judge which might give rise to the apprehension of bias within the test stated in the authorities. I am also not persuaded that I have showed actual bias, and I am not conscious of having formed any final opinions as to a matter yet to be decided. I am consciously attempting to reserve my judgment in relation to all the matters that I shall have to determine in the future.
I therefore refuse the application that I should disqualify myself.

I certify that the preceding eleven (12) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: