Manolakis v State of SA

[2005] SASC 28

Supreme Court of South Australia

(Applications Under Various Acts or Rules: Civil)

MANOLAKIS & ORS v STATE OF SA

Reasons for Decision of The Honourable Justice Bleby (ex tempore)

21 January 2005

PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - REASONABLE SUSPICION OF BIAS

Application by defendant to strike out parts of statement of claim – Allegations sought to be struck out include allegations of misconduct by Chief Justice and by a Magistrate – Whether a judge of the Supreme Court should hear the application – Independence of judges and Court – Whether reasonable apprehension of bias – Action transferred to District Court pursuant to s 24 District Court Act 1991.

District Court Act 1991 (SA) s 24, referred to.
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, applied.
Re Carolina; ex parte Torney (1999) 200 CLR 386; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, considered.

MANOLAKIS & ORS v STATE OF SA
[2005] SASC 28

1. BLEBY J (ex tempore)     This application comes before me by direction of a master as the defendant’s application to strike out a number of paragraphs of the statement of claim and to strike out the claims as they purport to be made by a number of plaintiffs other than Mr Manolakis. The only reason the matter has been referred to me today is because paras.46 and 47 of the statement of claim, being two of the paragraphs sought to be struck out by the defendant, involve allegations of misconduct by the Chief Justice of this Court and against a magistrate in this State.

2. Before the defendant the State of South Australia was substituted for all other defendants in the action by order of a master, the defendants named included the Courts Administration Authority being the body responsible for the administration, among other things, of this Court and being the body which provides accommodation and other facilities for judges of this Court, and on which judges of this Court depend in order to carry out their judicial duties with any semblance of order, dignity or efficiency. However, it was and is not apparent from the allegations in the statement of claim how the Courts Administration Authority was involved. There were and still are no pleadings to suggest any involvement, directly or indirectly by that authority in conduct of which the plaintiff complains. However, there does remain, with the change of defendant, an allegation in the body of the statement of claim against the Chief Justice of this Court of serious misconduct allegedly affecting the plaintiff, which allegations are contained in the paragraphs sought to be struck out by the defendant.

3. The first question to be resolved is who should hear the application given those allegations of impropriety on the part of the Chief Justice of this Court. Because of the nature of the allegations, the Chief Justice would obviously be unable to hear the application. There would be a reasonable apprehension in the mind of a fair minded lay observer that the Judge might not bring an impartial mind to the resolution of that question. The question now is whether that perception extends to other judges of this Court.

4. Whatever the Chief Justice may have done in his personal capacity, because of the independence of judges from one another, that will usually be insufficient to taint another judge of the same court:  Re Carolina; ex parte Torney (1999) 200 CLR 386. Judges of this Court are required to and will act independently and in accordance with their judicial oath.

5. However, the court has a vital interest also in the maintenance of its independence and impartiality and in the maintenance of the public confidence in the impartiality and integrity of the court. The relevant principles were discussed by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345:

   “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 by undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.

   The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First it requires the identification of what it is said that might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assumption that a judge (or juror) has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with a possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.”

6. Later, at 348 the same judges said:

   “In Webb v The Queen (1994) 181 CLR 41 at 74 a case concerning a juror, Deane J identified four distinct, though overlapping, categories of case involving disqualification by reason of the appearance of bias: interest; conduct; association; and extraneous information. It is not necessary to decide upon the comprehensiveness of such categorisation, and its utility may depend upon the context in which it is employed. However, it provides a convenient frame of reference.”

7. Interest in the sense discussed is not limited to financial interest. As the court pointed out at [26] in Ebner indirect interest may be as destructive of the appearance of impartiality as direct interest.

8. Association and interest may overlap. There is obviously a close working association between all judges of this Court and the Chief Justice both in the exercise of judicial powers and in the day to day administration of the court. Not least of these is the Chief Justice’s ultimate responsibility for determining the judicial roster and for assigning particular judges to particular cases or jurisdictions. It is in this combination of interest and association that it can be said that a fair minded lay observer might reasonably apprehend that a judge of this Court might not bring an impartial mind to the resolution of the questions to be decided on this application.

9. It might be said that the principle of necessity discussed in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 88 would permit a judge of this Court to hear the application where all judges could be said to be affected by the same problem. However, there is an alternative which can be and which I consider ought to be followed in order to avoid any question of apprehended bias. That is to transfer the action to the District Court in accordance with the powers conferred by s 24 of the District Court Act (1991).

10. The subject of the proceedings lies wholly within the jurisdiction of the District Court. Indeed, it is probably more appropriate that the action should have been commenced in the District Court in any event. There are no allegations of misconduct affecting any judge of the District Court and there is no relevant degree of interest or association that judges of the District Court could have of the type which might affect the ability of a judge of this Court to hear the application.

11. Once the action is transferred the action will of course remain an action in the District Court, and all future applications and the trial, if it proceeds, will be conducted in that court.

12. The order of the court will be:

    1.That this action be transferred to the District Court;

    2.Costs in the cause.