Lindalow Pty Ltd v Ambrosy (No.1) - [2003] FMCA 578

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LINDALOW PTY LTD v AMBROSY (No.1)

[2003] FMCA 578

BANKRUPTCY – PRACTICE AND PROCEDURE – Apprehension of bias – whether presiding Justice should disqualify himself – oath of office – duty.

Webb v R (1994) 122 ALR 41
Re Polites and Anor; Ex parte Hoyts Corporation Pty Ltd & Ors (1991) 100 ALR 634
Bienstein v Bienstein (2003) 195 ALR 225

Applicant:

LINDALOW PTY LTD
(ACN 006 685 892)

Respondent:

PETER AMBROSY

File No:

MZ 802 of 2003

Delivered on:

27 November 2003

Delivered at:

Melbourne

Hearing Date:

27 November 2003

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant:

Mr A Broadfoot

Solicitors for the Applicant:

Middletons

Respondent:

In person

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 803 of 2003

LINDALOW PTY LTD (ACN 006 685 892)

Applicant

and

PETER AMBROSY

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In this application the respondent, Mr Peter Ambrosy, has properly brought to the attention of the court by way of a preliminary issue a matter which he has invited the court to consider; namely, whether this court should disqualify itself from the further hearing of the application on the grounds that the court may be said to be a court which could properly be regarded as biased and that the court should in the circumstances not proceed to hear the matter on the basis that there is at least what might be described as a reasonable apprehension of bias.
The parties brought the issue to the attention of the court in correspondence. The applicant by facsimile message dated 26 November 2003 forwarded to the court a letter which had been written to the solicitors for the applicant by the respondent dated 24 November 2003. The Respondent’s letter provides the following:
“I feel duty-bound to draw to your attention that I have known his Honour for over 30 years from university days where

I developed a good relationship with him.
In such an emotionally-charged case where death threats were involved, I believe it would not be right for his Honour to hear the case.
Any swaying one way or the other might be perceived either, if adverse to your case as bias, or in my case, as over compensation for the fact of past relationship. In any event, his Honour may end up feeling uncomfortable hearing the case.
Accordingly, I propose we jointly approach the Register to list the matter before another judge. During that approach I can indicate those Magistrates well known to me.”
In the facsimile message from the applicant solicitors, which had enclosed that letter, the author states:
“The above matter has been listed for hearing before Federal Magistrate McInnis on 27 November 2003 at 10 am with an estimated hearing time of half a day. A copy of the relevant order is attached for your information.
We have now received the attached letter from the respondent, Peter Ambrosy, advising us that he has known Federal Magistrate McInnis for many years and therefore suggesting that the matter be listed for hearing before a different Magistrate. Given the matters raised in Mr Ambrosy's letter our client would be prepared to have the matter re-listed.
We would therefore appreciate it if you could contact Matthew Whittle in order to discuss the possibility of having the matter listed before another Magistrate at the earliest possible date.”
That facsimile addressed to the registry was brought to my attention as the presiding Federal Magistrate. When the matter was listed this day, as I have indicated, the Respondent properly brought the matter to the attention of the court.
This application had been listed previously before Walters FM on 10 November 2003. On that date His Honour adjourned the proceedings before me on this day and when the file came to my attention I noted the name of the Respondent and had a recollection that the name of the Respondent was the same name as a person with whom I had attended university almost 30 years ago. It was my intention to raise that matter for the benefit of the parties this day.
I should also add, however, that I had a recollection that I have not at least in the past 10 years had any conversation with or indeed social dealings at all with the respondent and nor did I have any recollection of the respondent in his capacity as a solicitor having instructed me as counsel to act in any matter. I have simply no memory of indeed any conversation at all in that past 10-year period. That recollection in substance was confirmed by the respondent this day.
The principles to be applied in matters of this kind have been referred to in a number of cases. It is sufficient for me to refer to the High Court in Webb v R (1994) 122 ALR 41. In its decision the court, that is, the joint judgment of Mason CJ and McHugh J, states at page 44 the following:
“When it is alleged that a judge has been or might be actuated by bias, this court has held that the proper test is whether fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case. The court has applied the same test to a Commissioner of the Australian Industrial Relations Commission and to a member of the Australian Broadcasting Tribunal. The court has specifically rejected the real likelihood of bias test. The principle behind the reasonable apprehension or suspicion test is that a fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done.”
I have also brought to the attention of the parties the decision of the High Court in the matter of Re Polites and Anor; Ex parte Hoyts Corporation Pty Ltd & Ors (1991) 100 ALR 634. The Respondent has brought to the attention of the court a further decision of the High Court in Bienstein v Bienstein (2003) 195 ALR 225. In that case the High Court was considering the issue of bias and a refusal to disqualify for apprehended bias. My attention was drawn to paragraph 30 of the decision of the High Court where it states:
“A judge is disqualified from determining a case if the judge is biased or a party or a member of the public might reasonably apprehend that the judge is biased. Bias exists if the judge might not bring an impartial and unprejudiced mind to the resolution of the issues.”
My attention was further drawn to the passages which appear at page 232, in particular paragraph 33 where the court states:
Relevantly to the present matter, a reasonable apprehension of bias may exist where the presiding judge has a substantial personal relationship with a party to, or a person involved in, proceedings or a substantial personal relationship with a member of the family of that party or person. But absent such relationship or others like them, it is absurd to suggest that a reasonable apprehension of bias can exist merely because a person involved in the proceedings comes from a city where the judge once practised professionally or because the judge may have had professional dealings with that person in the course of professional practice. In Re Polites; Ex parte Hoyts Corp Pty Ltd, this court held that even a prior relationship between a legal adviser and client does not generally disqualify the legal adviser, on becoming a member of a court or tribunal, from sitting in proceedings in which the client is a party. In the normal case (of which this is an illustration), it is only when advice given by the legal adviser is an issue in the proceedings that a reasonable apprehension of bias can arise. Similarly, ordinary interactions, (social or otherwise) between a practising lawyer who becomes a judge and other members of the legal community in that city does not itself give rise to an apprehension of bias if one of those members is involved in proceedings before the judge.”
It is clear to me on the basis of those authorities and the background in this matter that there is neither a professional or social relationship that has existed, at least in the past 10 years, and hence there is nothing like the suggested relationship that may have existed in Re Polites and no relationship of a kind which would otherwise attract the operation of the law applying those authorities. It is noted that the relationship in that case was not sufficient to require the presiding member to disqualify himself.
The Respondent however, further submits that in the present case he is unrepresented and being unrepresented in the circumstances adds another factor to be considered by this court in an application of this kind. There is no doubt, in my view, that the court has to be extremely cautious to ensure that unrepresented litigants have an adequate and ample opportunity to present the case unfettered by considerations of a kind which might be described in this case of apprehended bias, particularly where there is affidavit material, which suggests matters which no doubt have some emotional element.
The Respondent has indicated that in fact he has not practised law for a period of some almost 10 years. Therefore, he is to be taken, despite his qualifications, as a person who is representing himself in this application similar to an unqualified litigant. He has submitted that he would feel uncomfortable representing himself in these circumstances and has indicated further that inquiries made by him have revealed that no similar discomfort would be experienced if the matter were to be listed before another Federal Magistrate.
In my view, whilst the concern and discomfort of the respondent is understandable, as a matter of law I am satisfied that it is not a proper basis upon which this court should exercise its discretion to disqualify itself from hearing this matter. The fact remains that upon appointment as a Chapter III Justice a Federal Magistrate presiding in this court is required by oath of office to judge cases according to that oath. The oath requires the court to “do right to all manner of people according to law without fear or favour, affection or ill will.”
Applying the authorities to which I have referred and having regard to the oath of office that despite what might be perceived as the discomfort of the respondent, I would not be discharging my duty according to law if I were to simply withdraw from hearing this case or disqualify myself in this case on the grounds of apprehended bias. It is not relevant whether another Federal Magistrate may be available to hear the case on some other day or even if there were a Federal Magistrate available to hear and determine the matter this day. The duty I have to the court is to administer justice according to law and to only disqualify myself where there is apprehended bias of a kind contemplated by the authorities to which I have referred.
There is no basis upon which I should disqualify myself from the hearing of this application. The matter will proceed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 27 November 2003