Moles v The University of Adelaide

[2001] FCA 1666

FEDERAL COURT OF AUSTRALIA

Moles v The University of Adelaide [2001] FCA 1666

PRACTICE & PROCEDURE – Courts and the judicial system – Apprehension of bias – Whether comments at interlocutory stage make out a claim for apprehended or imputed bias

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 176 ALR 644 applied

Bullock v The Federated Furnishing Trades Society of Australasia (1985) 5 FCR 464 referred to

Minister for Immigration and Multicultural v Jia [2001] HCA 17; (2001) 178 ALR 421 applied

R v Watson; Ex parte Armstrong (1976) 136 CLR 248 referred to

Re Morling; Ex parte Australasian Meat Industry Employees Union and Others (1985) 66 ALR 608 followed

ROBERT NELSON MOLES, NATIONAL TERTIARY EDUCATION INDUSTRY UNION v THE UNIVERSITY OF ADELAIDE

S 169 OF 2001

MARSHALL J
MELBOURNE
26 NOVEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	S 169 OF 2001

BETWEEN:

ROBERT NELSON MOLES
FIRST APPLICANT

NATIONAL TERTIARY EDUCATION INDUSTRY UNION
SECOND APPLICANT

AND:

THE UNIVERSITY OF ADELAIDE
RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

26 NOVEMBER 2001

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1. The applicants’ motion date 20 November 2001 be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	S 169 OF 2001

BETWEEN:

ROBERT NELSON MOLES
FIRST APPLICANT

NATIONAL TERTIARY EDUCATION INDUSTRY UNION
SECOND APPLICANT

AND:

THE UNIVERSITY OF ADELAIDE
RESPONDENT

JUDGE:	MARSHALL J
DATE:	26 NOVEMBER 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 25 September 2001, the applicants filed an application and accompanying statement of claim in the South Australia District Registry of the Court. In the application relief was sought inter alia by way of a penalty on the respondent for alleged breaches of an industrial award and “an order for specific performance of the first Applicant’s appointment”.

2. On 12 November 2001, the Court heard the applicants’ application for interlocutory relief. The applicants sought that the Court make the following order:

   “That pending the hearing and determination of the matter, the respondent treat the first applicant as holding a position as Associate Professor in the University of Adelaide.”

3. In an ex-tempore judgment recorded on transcript (“the interlocutory judgment”) the Court refused the application for interlocutory relief. That judgment was in the following terms:

   “This matter is urgent in the sense that a judgment on an interlocutory point has to be given by Friday. I [have] formed a clear view about my approach to the resolution of the interlocutory issue and I don’t think in the circumstances that the parties would be necessarily assisted by me taking everything back to Melbourne in a hurry and working out some long-winded reason for coming to the view that I’ve come to on the interlocutory issue. What I propose to do is just explain now in very short terms on an ex-tempore basis the view I’ve taken, and make an appropriate order and to give further directions for the trial of the proceeding.

   The view I’ve taken in the matter is that interlocutory relief should not be granted. In coming to that view I’m prepared to assume that there is a serious issue to be tried without necessarily finding either way, given the volume of material and the shortness of time available and given that all those matters will be ventilated in the trial. I think this is one of those cases where I can do no more than assume a serious issue to be tried. I can’t say whether the serious issue is very serious or whether it is less serious in the sense that it is barely arguable but nonetheless, raising a serious issue to be tried as discussed by [Justice]Woodward in Bullock’s case in 5 FCR 464 at 472.

   On the question of balance of convenience, I’m concerned that it appears that at least the second applicant took a deliberate path to ventilate the matters at the heart of the dispute between the parties in the commission as at 8 June 2001 rather than come to the court where the matter could have been raised in court at that stage, and the application for interlocutory relief could have been dealt with in far less hurried and harried circumstances.

   I also consider that overwhelmingly damages would be an adequate remedy. I say “overwhelmingly” advisedly because I understand that that there will be a difficult hiatus between 17 November and the giving of any judgment in the trial in respect to the position of the first applicant and his standing in the tertiary academic community. But any disadvantage in that is ameliorated to the extent that the court will cooperate beyond what it would ordinarily be prepared to do in arranging an urgent trial. I thought in the circumstances it is important to set out those brief reasons now so that the parties know where they stand now, so directions can be made now for the pursuing of that urgent trial.

   So the formal order I make on the application for interlocutory relief is that the application for interlocutory relief be dismissed. I will now hear counsel on the question of progressing towards a trial. I have the first week of February available. With some arm-twisting of the Full Court coordinating people I might be able to take the second as well, although I’ll have to see about it. It may be that at least we can finish the evidence in the first week and set down a short timetable for the receipt of written submissions. Alternatively, if the evidence requires two weeks we might have to do that.”

4. A directions hearing in the matter was held in Melbourne on 16 November 2001. At the directions hearing, Mr Howells, counsel for the applicants, asked me to consider re-docketing the matter having regard to that part of the interlocutory judgment in which the view was expressed that “overwhelmingly damages would be an adequate remedy”. It was contended that such a view had involved a prejudgment of the first applicant’s claim for specific performance.

5. My expressed view about damages related to the alleged grievances suffered by the first applicant in the period prior to 17 November 2001, rather than indicating my view about the strength of the applicant’s claim for specific performance. In the following line, I specifically recognised that damages may not be an adequate remedy for the period between 17 November 2001 and the giving of judgment. However, I considered an urgent trial may ameliorate this disadvantage. I used the word “overwhelmingly” in temporal sense, as is clear from a fair reading of the interlocutory judgment as a whole. My use of the word “overwhelmingly” appears to have been misunderstood and taken out of context by the solicitor for the applicants who, at paragraph 5 of his affidavit in support of this Notice of Motion, refers to my observation that “overwhelmingly damages would be an adequate remedy”, in isolation and without the qualification that immediately followed.

6. When the matter was initially raised at the directions hearing, my first inclination was to attempt to cause the matter to be re-docketed, rather than require the applicants to bring a formal motion for, in effect, disqualification on the ground of imputed bias. Without conceding the validity of the concerns of the applicants, I considered that this approach would save the parties the considerable trouble and expense of the issue being further ventilated. However, I informed the parties I would have to consider the matter and that I did not rule out the possibility that I would require a formal motion to be filed. Upon giving further consideration to counsel’s request, I instructed my associate to write to the parties in the following terms:

   “The Judge has considered the foreshadowed application that he disqualify himself from hearing the trial in this proceeding. Initially, he was inclined to have the matter re-docketed to avoid the parties having to debate the issue. Subsequently, the Judge has formed the view, subject to further argument (if necessary), that there is currently no legitimate basis upon which he should disqualify himself.

   The Judge’s views at the interlocutory stage of the proceeding were provisional only. He has an open mind on all issues the subject of claims for final relief. His provisional views were adopted on the basis of a preliminary hearing in circumstances where the evidence at the final hearing will not be the same as the evidence at the interlocutory hearing.

   The Judge is available from 2 – 12 April 2002 to conduct the trial. I will list the matter for hearing before him on these days (and abandon the foreshadowed directions hearing in March), unless our chambers is advised by 5pm on 20 November 2001 that the applicants wish to move on motion, supported by affidavit, a formal application that the Judge disqualify himself from conducting the trial. In the event that the applicants wish to avail themselves of the opportunity to bring such a motion, it must be filed and served by no latter than 10.15am on 21 November 2001 and be made returnable on 26 November 2001, in Melbourne.

   The respondent, if it wishes, can appear in Melbourne on that day, although our chambers understands that the current position of the respondent is that it does not wish to be heard on this issue. If this position remains constant, the respondent is excused from appearing to contest or support the applicants’ motion, if one is filed.”

7. My further consideration of my initial inclination to have the matter re-docketed was significantly influenced by issues concerning the administration of justice. In particular, I was mindful of the concerns raised by Gleeson CJ in Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 176 ALR 644 at [20] (“Ebner”) where his Honour observed that:

   “…if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.”

8. My associate’s letter was sent to the parties by facsimile transmission late in the afternoon of 16 November 2001. On 20 November 2001, the solicitors for the applicants advised my chambers that they wished to file a motion in the matter seeking formally that the matter be docketed to another judge of the Court.

9. At the hearing of the motion on 26 November 2001, the applicants, represented by Mr Howells of counsel, submitted that I should not conduct the trial in the matter due to apprehended or imputed bias having regard to the transcript and the interlocutory judgment of 12 November 2001. Mr Howells submitted a reasonable apprehension of bias arose from comments which I made during the interlocutory hearing about specific performance being available as a remedy “in an appropriate case” (pp 49 & 50 of transcript), combined with a reference to Bullock v The Federated Furnishing Trades Society of Australasia (1985) 5 FCR 464 (“Bullock”) and the use of the word “overwhelmingly” in the interlocutory judgment. For the following reasons, this submission lacks foundation.

10. My reference to specific performance being available “in an appropriate case” is an unexceptional one (and was made directly following my observation that “the traditional previous reluctance to grant specific performance doesn’t exist”: see p 49 of transcript).

11. Mr Howells contended that my reference to Bullock may lead to a reasonable apprehension of bias because Bullock was a case where the strength of the serious issue to be tried was low. This contention is devoid of merit. Bullock was referred to in the context of my decision to assume that there was a serious question to be tried, specifically without taking a view as to the degree of the assumed serious issue. So much is clear from the very sentence of the interlocutory judgment where reference to Bullock is made.

12. Mr Howells, as foreshadowed at the directions hearing and in the affidavit in support of the motion, focused on my observation that “overwhelmingly damages would be an adequate remedy”. He did so without taking into account the explanation of the use of the word “overwhelmingly” contained in the following sentence. I refer to, without repeating, the observations made above at [5], and reject this contention.

13. Having heard the submissions in support of the motion I consider that it should be dismissed. I have not lightly made the decision to refuse to re-docket the matter. I am mindful of the view expressed by Kirby J in Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; 178 ALR 421 (“Jia”) at [136], where his Honour observed that the purpose of the rule relating to imputed bias is to:

    “uphold vigilantly the high standards applicable to the appearance of justice and fairness in official decision making in Australia.”

14. I am also conscious that the test for imputed bias is now expressed in terms of possibilities, that is, it is enough “that 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.”(Emphasis added). See Ebner at [6] per Gleeson CJ. See also Jia at [135] per Kirby J and R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 262 per Barwick CJ, Gibbs, Stephen & Mason JJ. However, such bias must still be “firmly established”, as Kirby J recognised in Jia at [135]. As Dawson J said in Re: Morling; Ex parte Australasian Meat Industry Employees (1985) 66 ALR 608 at 611 (“Morling”):

    “The mere expression of an apprehension of bias does not establish that it is reasonably held; that is a matter which must be determined objectively.”

15. In the circumstances of this case, I do not believe a “fair-minded observer” or any party, aware of the nature and purpose of interlocutory hearings, would objectively consider that I might not bring an impartial mind to the question of whether specific performance should be granted in this matter after consideration of evidence and submissions advanced at a final hearing.

16. The chief reason why the interlocutory injunction was not granted was because of the applicants’ delay in bringing the proceeding. My views on the adequacy of damages were less significant to the resolution of the interlocutory issue. As was said in the letter from my associate to the parties, my views on the issue of damages being an adequate remedy were provisional, in the sense that they were based on the current state of evidence and submissions. It is important to observe that at the directions hearing Mr Howells informed the Court that the applicants were not ready for a February hearing, and required until February 2002 to put on wholly new evidentiary material upon which they would rely at a trial to be held later in 2002. The trial is now scheduled to commence on 2 April 2002, and will be heard and determined by reference to that material which is yet to be filed.

17. In light of this context, I adopt the approach of Dawson J in Morling. In Morling, Dawson J considered an application seeking that Morling J not hear a matter in which he had granted an injunction. In dismissing the application, Dawson J made the following observations at 611 – 612:

    “… having expressed his views regarding the evidence adduced upon the question of injunctive relief, there is no reason to suppose that, upon the question of responsibility of the union for any loss or damage suffered by the claimant and the extent of any such loss or damage, his Honour will not reach his conclusions in accordance with the evidence which, having regard to the course taken, may not be the same evidence as that upon which his Honour granted an injunction.
    …

    [Morling J] reached those views at a time when the whole of the proceedings before him had not been completed and there is nothing to indicate that they represented concluded views whatever course the proceedings might thereafter take. Indeed, the piecemeal nature of the proceedings required conclusions to be reached at different stages upon the material then before the judge. Difficult, perhaps undesirable, as such a mode of proceeding might be, it does not carry with it the implication that the judge, in reaching a conclusion upon one issue in the case must subsequently approach another issue with a closed mind, unable to give proper weight to any further material which might be put before him.”

18. In considering whether specific performance of contract should be granted as final relief, I will consider the evidence and argument put at trial, and have an open mind about whether my views expressed in the interlocutory judgment will be views which I will hold at the conclusion of the trial. In the absence of the evidence being filed and submissions being heard, I cannot know what views I will arrive at.

19. I do not consider that in the circumstances, an independent observer or a party viewing the matter objectively, might have a reasonable apprehension that I would not bring an impartial mind to the resolution of all issues in the trial of this proceeding. The motion will be dismissed and the hearing dates advised in my associate’s letter to the parties will stand, subject to further orders, if any.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:             26 November 2001

Counsel for the Applicant:	Mr S Howells
Solicitor for the Applicant:	Lieschke & Weatherill
There was no appearance for the respondent.
Date of Hearing:	26 November 2001
Date of Judgment:	26 November 2001