Morey, Philip James v Transurban City Link Ltd

[1997] FCA 952

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - costs - application for non-party to pay applicant’s costs of trial - judgment at trial in favour of applicant set aside on appeal and new trial ordered - future course of costs application

COURTS AND JUDICIAL SYSTEM - application for non-party to pay applicant’s costs of trial - alleged reasonable apprehension of bias - judge hearing application also a member of Full Court which set aside judgment at trial - whether issues before Full Court separate from issues in costs application

Livesey v The New South Wales Association (1983) 151 CLR 288

Re JRL; Ex Parte CJL (1986) 161 CLR 342

PHILIP JAMES MOREY  v  TRANSURBAN CITY LINK LIMITED & ANOR
NO. VG 124 of 1996

HEEREY J
MELBOURNE

5 AUGUST 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIA DISTRICT REGISTRY	)  VG 124 of 1996
)
GENERAL DIVISION	)

BETWEEN:	PHILIP JAMES MOREY Applicant
AND:	TRANSURBAN CITY LINK LTD & ANOR Respondents

JUDGE:	HEEREY J
PLACE:	MELBOURNE
DATE:	5 AUGUST 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. Further hearing of this matter be adjourned to a date to be fixed after the hearing and determination of the new trial in matter VG 81 of 1996.

1. Costs of today’s application reserved.

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	)   VG 124 of 1996
)
GENERAL DIVISION	)

BETWEEN:	PHILIP JAMES MOREY Applicant
AND:	TRANSURBAN CITY LINK LTD & ANOR Respondents

JUDGE:	HEEREY J
PLACE:	MELBOURNE
DATE:	5 AUGUST 1997

REASONS FOR JUDGMENT

On the resumed hearing of this application by the respondents that Mr Mees pay the costs of the action brought by Mr Morey, counsel for the respondents made two submissions.  First, given the orders for a new trial made by the Full Court on 11 July 1997, the application against Mr Mees should be adjourned for the judge hearing the new trial.  Secondly, because of a reasonable apprehension of bias, it was in any event not appropriate for me to continue to hear and determine the application.

As to the first submission, it seems clear to me at the outset that, notwithstanding what was said by counsel for the respondents, the order of the Full Court set aside the whole of the judgment of Northrop J, that is the judgment which dismissed Mr Morey’s claim and ordered Mr Morey to pay the respondents’ costs. That is apparent from the concluding passage of the reasons for judgment of the Full Court:

As to costs, the respondent should pay the appellant’s costs of this appeal, including reserved costs.  The costs of the first trial should be reserved for the judge hearing the new trial.

It cannot be contended that Northrop J’s order for costs is still on foot and enforceable.  That being so, to continue hearing the present application before the new trial is heard and determined would involve hearing a proceeding on a hypothetical basis, namely the assumption that the respondents will be entitled to all, or some, of their costs of the first trial.

Leaving aside for a moment the submission as to apprehended bias, the alternatives seem to be either dismissing the application, adjourning it for the judge hearing the new trial, or adjourning it for further hearing before myself at a time after the new trial has been heard and determined. The first alternative would be unfair to the respondents, who have raised discrete issues as to the involvement of Mr Mees in the first trial and whether or not the Court’s discretion should be exercised to have him pay the respondents’ costs, notwithstanding he is not a party.  The respondents are entitled to have their claim against Mr Mees dealt with on its merits. 

It is possible, of course, that at the end of the day the respondents may get an order for their costs of the first trial against Mr Morey (in the event of his failing in the new trial).  Or they may get an order for some of their costs of the first trial (even if Mr Morey succeeds in the new trial) having regard to the fact that the new trial will be limited to two issues.

Having the judge hearing the new trial deal with the question of Mr Mees’ liability would not be efficient because the issues raised in the application against him are quite separate from the substantive issues raised by Mr Morey against the respondents.  In the application against Mr Mees the respondents have raised questions as to Mr Morey’s and Mr Mees’ financial positions, Mr Mees’ role in the Public Transport Users’ Association and Mr Mees’ conduct in the preparation and running of the first trial.  None of these matters would have anything to do with the new trial, which is limited to the matters directed by the Full Court.

There has already been substantial time and cost expended on this matter.  I have heard the evidence thus far, and have made some rulings on the admissibility of evidence (mostly in favour of the respondents).  Therefore, it seems to me as a matter of efficiency that the further hearing of the matter, subject only to the question of apprehended bias with which I will deal in a moment, should be heard by myself.

I turn now to the bias question.  Counsel relied on the leading authority, the  decision of the High Court in Livesey v The New South Wales Bar Association (1983) 151 CLR 288. The High Court stated the principle in these terms (at 293):

That principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.

Counsel advanced four reasons why that test was satisfied.  The first was that I was a member of the Full Court which rejected the respondents’ primary submissions as to the two relevant misrepresentations alleged and concluded (at pp 19 to 20 of the Full Court judgment) that there was a prima facie case of misleading and deceptive conduct.  Secondly, the Full Court expressed a view as to the meaning of the word “utilising”: see p 20.  Thirdly, the Full Court said that the wrong definition of light commercial vehicle had been used in the traffic report and that an inference ought to be drawn from the non-production of the report by the respondents: see judgment p 13 and transcript p 58.  Fourthly, there were expressions of disapproval, both in the Full Court judgment and by myself as recorded in the transcript of argument, as to the non-production of the report.

I am not satisfied that these matters, either individually or in combination, meet the standard laid down in Livesey.  I note that during the earlier course of the application against Mr Mees it was mentioned to the parties that I was to be a member of the Full Court which would hear the appeal.  No objection was taken either to me continuing to hear the application against Mr Mees or being a member of the Full Court.  Secondly, the issues dealt with by the Full Court go to the merits of Mr Morey’s claim and are quite distinct from the issues raised in the costs application against Mr Mees.  I have already briefly touched on the nature of those latter issues.  It was no part of the respondents’ case against Mr Mees that the case of Mr Morey on the merits was a frivolous or vexatious exercise.  The following passage from the judgment of Mason J in Re JRL; ex parte CJL (1986) 161 CLR 342 at 352 is applicable. His Honour said:

It seems that the acceptance of this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation.  It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.  There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties.  But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable  apprehension that he will approach the issues in this way.  In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”:  Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink: Ex parte Shaw.  Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

There will be an order that the further hearing of this matter be adjourned to a date to be fixed after the hearing and determination of the new trial I Mr Morey’s claim in VG 124 of 1996.  The costs of today will be reserved.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey

Associate:

Dated:

5 August 1997

Counsel for the Applicant:	Mr Mees appeared in person
Counsel for the Respondent:	Mr T J Walker
Solicitor for the Respondent:	Baker & McKenzie
Date of Hearing:	5 August 1997
Date of Judgment:	5 August 1997