Lina Socorro Obieta v Women's Housing Co Limited (No. 2)

[2009] NSWDC 392

CITATION:	Lina Socorro Obieta v Women's Housing Co Limited (No. 2) [2009] NSWDC 392
JUDGMENT DATE:	10 June 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	The application is dismissed.
CATCHWORDS:	CIVIL LAW - appeal from decision of Consumer, Trader and Tenancy Tribunal NSW - application by plaintiff for judge to disqualify himself on grounds of apprehended bias - definition of 'bias'
LEGISLATION CITED:	Consumer Trading and Tenancy Tribunal Act 2001 Uniform Civil Procedure Rules 2005
CASES CITED:	Australian National Industries Limited v Spedley Securities Limited (in liq) (1992) 26 NSWLR 411 Ebner v Official Trustee and Bankruptcy (2001) 205 CLR 337 Johnson v Johnson (2000) 201 CLR 488 Livesey v The New South Wales Bar Association (1983) 151 CLR 288 McGovern v Ku-Ring-Gai Council (2008) 251 ALR 558 R v Gough [1993] AC 646 Rex v Sussex Justices Ex Parte McCarthy [1924] I King's Bench 256 Vakauta v Kelly (1989) 167 CLR 568
PARTIES:	Lina Socorro Obieta Women's Housing Co Limited
FILE NUMBER(S):	108/09
COUNSEL:	Ms Obieta in person Mr Hewitt for the defendant

JUDGMENT

1. Lina Obieta has applied for me to disqualify myself from hearing her case. The ground of her application is apprehended bias. Her case, which commenced on 15 January 2009, is an appeal from a decision of the Consumer, Trader and Tenancy Tribunal New South Wales. The respondents to the appeal were the Tribunal and the Women’s Housing Company Limited. The Tribunal has now been removed as a respondent.

2. The appeal commenced before me on 6 March 2009. It became part heard and was stood over to 19 March 2009 for mention. On 19 March 2009 I adjourned the case for hearing before me to 20 May 2009. In the meantime on 25 March 2009 Ms Obieta filed her application for me to disqualify myself. The application was by way of notice of motion and seeks an order that I disqualify myself to sit in her appeal by reason of apprehended bias. She asks that her appeal be allocated to another judge.

3. That notice of motion was allocated a hearing date by the Registry of 17 April 2009 before me. At that stage I was sitting at Parramatta in crime. Nevertheless, the application to disqualify myself was mentioned on that day and I adjourned the notice of motion for hearing to the same date that I had previously allocated for the hearing of the appeal, namely 20 May 2009.

4. On 20 May 2009 I heard the notice of motion. Ms Obieta’s application was supported by three affidavits: one by her dated 25 March 2009, another by her of 20 April 2009 and a third by Helen Jones of 20 April 2009. In addition Ms Obieta called Ms Jones as a witness. She tendered as exhibits a photograph of me as well as transcripts of the proceedings of 6 March and 19 March 2009 containing proposed amendments by her.

5. After hearing the evidence and submissions from Ms Obieta and Mr Hewitt of counsel, who appeared for the Women’s Housing Company Limited, I reserved my decision on the notice of motion until today.

6. In the meantime on 29 May 2009 the Judicial Registrar removed as a party to the proceedings the Consumer Trader and Tenancy Tribunal New South Wales.

7. Before embarking on an assessment of Ms Obieta’s arguments it is important to set out briefly the relevant legal principles which I should apply in determining this application.

8. I was referred to those principles by both Ms Obieta and Mr Hewitt. Ms Obieta in a helpful document comprising her list of authorities from which she had extracted passages she relied upon and dated 8 June 2009, referred to a number of the principal authorities. She referred to the High Court judgment in Ebner v Official Trustee and Bankruptcy (2001) 205 CLR 337, and what was said in the joint judgment of Gleeson CJ, McHugh, Gummow, Hayne JJ in the following terms at 345 ([7]):

“ The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited, lest the integrity of the judicial system be undermined.”

9. Ms Obieta also referred to the High Court’s judgment in Johnson v Johnson (2000) 201 CLR 488. In the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ, their Honours said at 492 ([11]):

“ It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) 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 .”

I have omitted reference to authorities.

10. Ms Obieta also referred me to a speech of Lord Goff in the House of Lords in R v Gough [1993] AC 646, where his Lordship said at 659 that “bias is such an insidious thing that, even though a person may in good faith believe that he was acting impartially, his mind may unconsciously be affected by bias.”

11. Ms Obieta also referred me to remarks made by Lord Hewart CJ in Rex v Sussex Justices Ex Parte McCarthy [1924] 1 King’s Bench 256 at 259, where his Lordship said:

“ It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

12. There are a number of other legal principles or legal perspectives which are related to applications such as this. In the High Court’s judgment in Livesey v The New South Wales Bar Association (1983) 151 CLR 288, in a joint judgment, the full High Court said as follows at 294:

“ On the other hand, it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party to do so on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practices of the particular court.”

13. As their Honours said in the joint judgment in Johnson v Johnson at 493 ([13]), “the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.” Their Honours went on to say in the same paragraph:

“ The rules and conventions governing such practice are not frozen in time. They developed to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx.”

Their Honours referred with approval to a passage from the joint judgment of Brennan J, as his Honour then was, and Deane and Gaudron JJ in Vakauta v Kelly (1989) 167 CLR 568 at 571 where their Honours spoke of “the dialogue between bench and bar which is so helpful in the identification of real issues and real problems in a particular case”. In Johnson v Johnson in the joint judgment, their Honours said that judges, both at trial and appellate level “who, in exchanges with counsel, expressed tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and by being given an opportunity to deal with them.”

14. Kirby J, who delivered a separate judgment in Johnson v Johnson referred at 505 ([46]) to the adversary system depending on “vigorous interaction not only between the parties and their representatives, but also between the adjudicator and those persons.” Kirby J, in describing the attributes of the fictitious bystander at 508 ([53]) said that the bystander “must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt a reasonable effort to confine proceedings within appropriate limits and to ensure that time is not wasted.”

15. Because a question arose in the application made by Ms Obieta which might have required the determination of certain factual issues, I was referred by Mr Hewitt to the Court of Appeal’s judgment in Australian National Industries Limited v Spedley Securities Limited (in liq) (1992) 26 NSWLR 411. In particular, Mr Hewitt referred me to some passages from the judgment of Mahoney JA, as his Honour then was, with whom Meagher JA agreed. At 436, his Honour said that there are “obvious reasons why the issue of, for example, whether a particular judge is in fact biased or there is an appearance of bias should not be the subject of factual contest, by evidence and counter evidence, before the judge.” His Honour went on to say that the “principle adopted and followed has been that (special cases apart) the matter is to be determined by the judge himself and, if he be wrong, his error is to be corrected on appeal.” His Honour expressed the opinion that such an approach was correct. His Honour said:

“ Ordinarily, matters of bias or prejudgment are not susceptible of proof in the ordinary way, by allegation and counter-allegation; whether a judge is affected in such fashion is ordinarily a matter known essentially by him. And, I think, if such a matter were brought to contest in such a way, by evidence against evidence, the position of the judge and his impartiality would be - or ordinarily would be - destroyed.”

His Honour said earlier at the same page that the issue of whether a judge has prejudged a case is in a sense best described as a “non-justiciable issue.”

16. In McGovern v Ku-Ring-Gai Council (2008) 251 ALR 558, Basten JA with whom it appears Campbell JA and the Chief Justice agreed on this issue, referred to allegations which may be made on such an application where some improper conduct is suggested. His Honour said at 578 ([104]) that in respect of such an allegation there is a need for them to be “distinctly made and clearly proved”. There was no suggestion that the elements of a real apprehension of bias need to be subject to such a requirement, but only a specific and serious allegation.

17. I turn now to a consideration of the bases for Ms Obieta’s application in this case. So far as I have been able to understand, contained in her evidence and submissions are twelve bases for her claim that I should disqualify myself for apprehended bias. Briefly, they are as follows:

1) A question of granting access to the Women’s Housing Company Limited -which I will refer to as “Women’s Housing” - to Ms Obieta’s unit.

2) The question of what kind of relief I might be able to grant in the case.

3) Observations about Ms Obieta’s legal qualifications or otherwise.

4) My previous professional role at the Bar.

5) Observations by court staff about access to the court file by Ms Obieta.

6) Transcripts of proceedings before me being incomplete or edited.

7) Observations said to have been made by court staff that her appeal had already been determined by me.

8) Observations made by me to Women’s Housing regarding a costs application.

9) Whether or not this motion should be heard in the absence of the parties.

10) Her impression that I argued more with her than with the legal representative of Women’s Housing.

11) Apparent surprise expressed by me about transcript of proceedings before the Tribunal below and changes I was said to have made in observations about that transcript.

12) Whether I, as a judge, was the same judge on each occasion that this matter came before the court.

18. I will now make observations and findings about each of those matters in light of the authorities which I have referred to.

19. As to the first point, I did indeed engage, as will be apparent from the transcript on 19 March 2009, in efforts to see whether the case could either be settled or whether the issues could be narrowed. That was pursuant to my obligation to make sure that the opportunities to either settle the case without the need for a court time or to reduce the court time by way of reduction of the issues which I needed to be determined were fully explored. It is an example of the kind of intervention which a judge will often make these days and which was referred to in the High Court in Johnson v Johnson.

20. Insofar as the second point concerned the granting of relief, I raised once again on 19 March 2009 a legal question of whether or not I had the power to grant certain relief under certain legislation. The relief in the legislation was in terms consistent with prerogative relief of the kind normally granted by the Supreme Court. Once again in order to indicate to the parties an issue which I thought might need to be addressed by them I referred them to the legislation which was the Consumer Trading and Tenancy Tribunal Act 2001 and an issue which I thought might be important to be determined. That again is the kind of intervention which is regularly made these days by judges, and, in my opinion, neither of those interventions referred to in the first or second points would be of the kind which a fair minded lay observer might think was brought about by an apprehension that I might not bring an impartial and unprejudiced mind to the resolution of the case before me.

21. The same in my opinion applies to my observation made on 6 March 2009 about Ms Obieta’s legal qualifications or otherwise, which was the subject of her third point. I asked within a few moments of commencing the hearing on 6 March whether Ms Obieta had a lawyer and she told me she was self-represented. The exchange to which she appears to take exception occurred over T 24-25 where I asked whether she had legal qualifications. I explained to her why I asked that question. The reason I gave was that I was making enquiries of the solicitor for Women’s Housing about certain procedural questions. I had made those enquiries because she was a solicitor and might be more familiar with such procedural matters. I realised that I had assumed that Ms Obieta did not have legal qualifications and that I should check. I did so and she explained over those pages and I explained why I had asked those questions. That exchange, to my mind, would not bring about an apprehension that I might not bring an impartial or unprejudiced mind to the resolution of Ms Obieta’s case.

22. Her fourth point concerned my statutory office when I was a member of the Bar as the New South Wales Crown Advocate and a former statutory office as a Crown Prosecutor in New South Wales. Ms Obieta argued that the Women’s Housing is a public company and registered with the Department of Housing. She also referred to the District Court being associated with the Attorney General’s Department and the Crown Solicitor formerly briefing me. She referred to a perceived continuing attachment and perceived connections or associations which might have resulted in contact which occurred behind her back. No contact with any of those organisations occurred behind her back, apart from contact with the Reporting Services Branch about transcript and perhaps emails received from the Crown Solicitor - if there were any received - who appeared on one occasion before the Tribunal in order to indicate that it wished to withdraw from the proceedings. In my opinion, a fair minded lay observer would realise of course that judges are often appointed from the Bar and may have held some public or statutory office before they assumed the role of a judge. In my opinion, a fair minded lay observer would not conclude that there was any inappropriate contact as a result of that former role.

23. Ms Obieta’s fifth point was based upon attempts by her to get access to her court file in the Registry. She raised that with me on 20 May 2009. The point was that when she went to the Registry a member of staff said “Oh” and pointed out that they did not have the file. I explained when she raised that, that it was my practice when I became part heard in a matter to keep the relevant court file in my chambers so that I could have access to it after hours. Her apprehension was that I had given some direction that she not have access to the file. In my opinion the explanation which I gave her at T 44 of the transcript on 20 May 2009 would remove from the mind of any fair minded lay observer any apprehension of bias on my part.

24. Ms Obieta’s sixth point concerned the transcript of various days of proceedings before me. At one stage she argued that she apprehended that there was a possibility that I had intervened with the Reporting Services Branch of the Attorney General’s Department in order to leave out certain portions of the transcript in order to protect Women’s Housing in this case. That is an example of a kind of non-justiciable issue which Mahoney JA referred to. I did not make any such intervention.

25. A related point concerning the transcript was an allegation made by Ms Obieta that there were inaccuracies in the transcript. That was canvassed comprehensively on 20 May 2009 before me. Ms Obieta drew my attention to a number of portions of the transcript which appeared to be inaccurate transcribing. I observed that she appeared to be correct in many of those instances. None of them, it seemed to me, was relevant to her application for me to disqualify myself. However, what I determined to do was to accept as exhibits AB and AC transcripts of the proceedings before me on 6 and 19 March respectively 2009, which contained her corrections and I indicated to her that I would determine this application by reference to her transcript as “corrected”. That, to my mind, would alleviate any concern of a fair minded lay observer arising from Ms Obieta’s reference to inaccuracies in the transcript.

26. The seventh point concerned an assertion by Ms Jones and Ms Obieta that a member of the Registry staff had advised them that the appeal had already been determined and a decision had been made. Ms Obieta was advised to appeal. That is also an example of a factual non-justiciable issue. I have not decided the appeal in this case. Those proceedings were, in a sense, suspended by Ms Obieta’s application for me to disqualify myself and the last one or two days of hearing have been concerned with that application. As I pointed out to her a number of times, in the event that she is unsuccessful in her application then I will resume my hearing of her appeal which, I repeat, I have not determined. I need not determine whether or not something was said by a member of the Registry staff. If it was, it was simply mistaken. I certainly do not suggest that anything was said deliberately or mischievously by any member of the Registry staff.

27. Ms Obieta’s eighth point concerned an exchange between me and Ms Mutton, who was then appearing as solicitor for Women’s Housing, concerning costs. Her point was that I had invited Women’s Housing to apply for costs. In fact what happened appears over T 14 and 15 of that day. Ms Mutton sought an order for costs for her attendance that day because they had not been served with the motion. I noted the application and invited her to renew it on 20 May. All that happened was that I responded to an application by indicating that it would not be determined on this day but should be renewed at an appropriate time. That would not, in my opinion, cause any fair minded lay observer to apprehend that I would not bring an impartial or unprejudiced mind to the resolution of Ms Obieta’s case.

28. Her ninth point concerned a question whether the notice of motion for me to disqualify myself should be heard in the absence of the parties. That matter was canvassed by me over T 2 to 5 of 14 April 2009. Ms Obieta was under the impression from a note on the form that the Women’s Housing should not be present and that the motion should be disposed of in the absence of the parties. I canvassed that question with her over those pages and determined at T 5 that I could see no reason why the matter should be dealt with in the absence of the public and that I should hear from the parties. Another party in this case had an interest in whether or not I disqualify myself. If I do disqualify myself then it may involve further costs to that other party. It is also of assistance to have the views of other parties on legal questions which may arise, as well as questions on the merits of the application to assist a judge determining it. Nothing in that exchange in my opinion would cause a fair minded lay observer to apprehend that I may not bring an impartial or unprejudiced mind to Ms Obieta’s case.

29. Her tenth point was that I appear to argue more with her, rather than with the legal representative of Women’s Housing. Her point was that I appear to be assisting and supporting Women’s Housing instead of her as an unrepresented party. I have not canvassed the transcript in order to assess how much I engaged with Ms Obieta rather than with Women’s Housing. However, it is not unusual that a judge might engage more with an unrepresented party in order to assist the judge in determining what the issues are in a particular case and what relief the unrepresented party is seeking and what arguments the party is putting forward in response. It is also fair to observe that unrepresented litigants are not constrained by the same degree that legal practitioners might be in spontaneous exchanges with the bench. Sometimes those spontaneous exchanges are more frequent and unconstrained than they are with legal practitioners. To my mind there is nothing that I could find which would cause a fair minded lay observer to apprehend that I was biased in this case.

30. Ms Obieta’s eleventh point was that I expressed some surprise regarding the transcript of proceedings before the Tribunal being tendered. I said that it may depend upon whether other parties agree. At some stage, I did indicate that. When a document or other proposed exhibit is tendered by a party then the admission into evidence of that document will depend upon whether that other party agrees. If the other party does not agree, then the judge has to determine whether it is admissible or not. There is nothing in such an exchange in my opinion which would cause the lay observer any apprehension that I might be biased.

31. Ms Obieta, related to this, suggested that I had changed my mind about the availability of transcript before the Tribunal. She may well be right in this. I expressed some views at one stage about the availability of transcript before the Tribunal and particularly that it should be available for an unrepresented litigant. There were discussions about what the requirements of the Uniform Civil Procedure Rules were for an appeal such as this and the expense involved for an unrepresented litigant in obtaining transcript. It may well be, although I have not tracked it down, that I thought that the transcript would be available but then realised it would not be available without the payment of a fee. That, I can say, was the result of enquiries which were made and to which reference is made in the transcript.

32. The twelfth point is the question about whether I am the same judge who sat on each occasion in this matter. Once again, that is a kind of non-justiciable issue referred to by Mahoney JA. I should add as a matter of interest that the witness called by Ms Obieta, Helen Jones, very frankly and fairly acknowledged that she thought that it could be that I was the same person. But, in fact, as I said, this is a non-justiciable issue and I make it clear, as I did during the proceedings, that I have been the judge who has presided in this appeal and application on each occasion that it has been before a judge of the District Court.

33. There was one matter I omitted to refer to in reference to the transcript -which was item 6 - and that concerned a suggestion by Ms Obieta that the transcript in some way degraded her dignity as a woman. She explained that point over T 45 to 46 of the transcript of 20 May 2009. That point does not, in my opinion, relate to or support any argument in favour of the granting of her application.

34. I conclude in my opinion that nothing has occurred which would cause a fair minded lay observer to reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the questions posed for me to decide in this appeal.

35. Accordingly, I dismiss the application.

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