New South Wales Bar Association v Archer (No 8)

[2006] NSWADT 318

CITATION:	New South Wales Bar Association v Archer (No 8) [2006] NSWADT 318
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the New South Wales Bar Association RESPONDENT Stephen John Archer
FILE NUMBER:	032019
HEARING DATES:	21/08/06
SUBMISSIONS CLOSED:	08/21/2006
DATE OF DECISION:	11/09/2006
BEFORE:	Chesterman M - ADCJ (Deputy President); Norton S SC - Judicial Member; Bennett C - Non Judicial Member
CATCHWORDS:	Disqualification for bias
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
CASES CITED:	Antoun v R [2006] HCA 2 Australian National Industries Ltd v Spedley Securities Ltd (In Liq) (1992) 26 NSWLR 411 Briginshaw v Briginshaw (1938 60 CLR 336 Council of the New South Wales Bar Association v Archer (No 2) [2004] NSWADT 78 Council of the New South Wales Bar Association v Archer (No 3) [2004] NSWADT 232 Council of the New South Wales Bar Association v Archer (No 4) [2004] NSWADT 235 Council of the New South Wales Bar Association v Archer (No 6) [2005] NSWADT 149 Council of the New South Wales Bar Association v Archer (No 7) [2005] NSWADT 223 Dickason v Edwards (1910) 10 CLR 243 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Johnson v Johnson (2000) 201 CLR 488 Kwan v Kang & Ors [2003] NSWCA 336 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Parramatta Design & Developments Pty Ltd v Concrete Pty Ltd [2005] FCAFC 138 R v Commonwealth Conciliation and Arbitration Commission: Ex parte Angliss Group (1969) 122 CLR 546 R v Gough [1993] AC 646 R v Grassby (1989) 168 CLR 1 R v Watson; Ex parte Armstrong (1976) 136 CLR 248 Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (No 9), unreported, Court of Appeal, NSW, 27 November 1990 Re JRL; Ex parte CJL (1986) 161 CLR 342 S & M Motor Repairs Pty Ltd v Caltex Oil Australia Pty Ltd (1988) 12 NSWLR 358 Southern Equities Corporation Ltd (In Liq) v Bond & Ors (2000) 78 SASR 339 Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 Webb v R (1994) 181 CLR 41
REPRESENTATION:	APPLICANT P R Garling SC G M Gregg, barrister RESPONDENT In person
ORDERS:	1. The Respondent’s application for an order disqualifying the members of this Panel from the further hearing of these proceedings is dismissed; 2. The matter is set down for further directions at 9.30 a.m. on 20 November 2006.

REASONS FOR DECISION

Introduction

1 On 9 October 2003, the Council of the Bar Association of New South Wales (‘the Bar Association’), as Applicant, filed in the Tribunal an Information containing two complaints under Part 10 of the Legal Profession Act 1987 (‘the LP Act’) against Stephen John Archer, the Respondent.

2 The Bar Association alleges that the Respondent, a legal practitioner within the meaning of s 128 of the Act, has been guilty of professional misconduct. In the Second Schedule to the Information, it requests the Tribunal (a) to find to this effect; (b) to find also that he is not a fit and proper person to remain on the Roll of Legal Practitioners; and (c) to order that his name be removed from the Roll or, in the alternative, to make an order under any one or more of sub-paragraphs (b), (c), (d), (e) or (f) of sub-section 171C(1) of the LP Act.

3 The Bar Association relies on two grounds which are set out in the First Schedule to the Information. It is not necessary to reproduce them here.

4 Since the Information was filed, there have been several interlocutory hearings, resulting in a number of decisions that we, as the three members constituting the Tribunal in these proceedings, have delivered. Some of these will be mentioned later in this judgment. At one of them, held on 6 August 2004, we dismissed an application by the Respondent that we should disqualify ourselves from further participation in the proceedings on the grounds of actual bias and/or apprehended bias. We published our reasons for this decision on 18 October 2004 (Council of the New South Wales Bar Association v Archer (No 4) [2004] NSWADT 235 (hereafter ‘Archer (4)’).

5 On 14 June 2006, the Respondent filed two applications in the Tribunal. In one of them, he sought, once again, (1) an order that we should disqualify ourselves ‘from the further hearing of these proceedings on the ground of actual or, alternatively, of reasonably apprehended bias’; and (2) further or other orders. In the other, he sought (1) orders that each of two summonses to produce documents issued by the Tribunal at the Bar Association’s request should be set aside; (2) orders that, pending the hearing and determination of the application, each of the two recipients of the summonses should be excused from compliance; and (3) further or other orders.

6 On 21 August 2006, we directed that the hearing of the Respondent’s second application should be deferred. We heard argument on the first application. We now give our decision, with reasons, on this application.

The grounds for disqualification advanced by the Respondent

7 In written submissions, which received some oral elaboration at the hearing, the Respondent, representing himself, put forward three grounds in support of his application for us to disqualify ourselves.

8 The first comprised an assertion of actual bias on our part. The Respondent contended that in the interlocutory decisions that we have delivered so far in this case, we have demonstrated a pre-determination against him, by virtue of ‘our unerring willingness to decide almost every disputed point and argument’ in favour of the Bar Association.

9 The second ground was that of reasonable apprehension of bias. The Respondent contended that on account of ‘our unerring willingness to decide almost every disputed point and argument’ in these interlocutory decisions in favour of the Bar Association, ‘a fair-minded bystander might reasonably conclude that the Tribunal might not bring an impartial mind to the resolution of the proceedings at the hearing’.

10 The Respondent formulated the third ground, which he labelled ‘prejudgment’, as follows: -

The Tribunal as presently constituted has made such a serious prejudgment against the Respondent upon a matter of credibility, that a fair-minded lay observer might conclude that such finding might affect its determination of the Respondent’s credit at the hearing, with the consequence that the present members must disqualify themselves from further participation in the matter.
11 The third ground is in fact closely allied to the second. Both are based on the principle that when ‘apprehended bias’ is shown it is the duty of the judge(s) or tribunal member(s) concerned to step down. The distinction between them, in the way that the Respondent has articulated them, is that in advancing the third ground, but not the second, he relies on the implications of a particular finding that we made in the latest of our decisions. In the present judgment, we will maintain this distinction.

12 It is convenient first to address each of the three grounds separately. We are mindful, however, of a number of authorities – see e.g. Parramatta Design & Developments Pty Ltd v Concrete Pty Ltd [2005] FCAFC 138 at [38], [40 – 41] – to the effect that in an application of this nature the applicant is entitled to rely on the cumulative effect of more than one indication of bias.

Actual bias

13 Relevant legal principles. The Respondent submitted that in determining whether actual bias existed, four basic propositions must be taken into account.

14 With regard to three of these propositions, Mr Garling, who appeared with Mr Gregg for the Bar Association, expressed no opposition. We have no doubt that they are applicable. They were set out in the Respondent’s written submissions as follows: -

1. It is a fundamental rule of natural justice, and an abiding value of our legal system, that a Judge must be free from bias: Johnson v Johnson (2000) 201 CLR 488 at 501.

2. Actual bias includes, relevantly, pre-determination arrived at in the course of the case: Dickason v Edwards (1910) 10 CLR 243 at 260.

3. Bias is not necessarily the same as good faith, so that a judge may believe that he is acting impartially while, in truth, his or her mind may unconsciously be affected by bias: R v Gough [1993] AC 646 at 659.

15 The remaining proposition put forward in this context by the Respondent was that a judge should not hear a case if in all the circumstances the parties or the public might reasonably apprehend that he/she might not bring an impartial or unprejudiced mind to the resolution of the question involved in it. The Respondent cited the judgments of the High Court in R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 258-264 (particularly 263) and Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294.

16 In our opinion, however, these authorities show that the proposition in question relates only to apprehended bias, and not to actual bias. This is particularly evident from the judgment in Livesey at 294, where the Court, in the middle of a passage in which this proposition was stated and applied, expressly noted that it was a case ‘where there is no allegation of actual bias’. Further authority for this point appears in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. At 344-345, the judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ states the proposition in terms very similar to those employed by the Respondent. The opening words of the relevant paragraph (para [6]) are: ‘Where, in the absence of any suggestion of actual bias…’

17 The general principles regarding actual bias which Mr Garling drew to our attention were (a) that a finding of actual bias should only be made on the basis of cogent evidence and (b) that accordingly such a finding attracted the well-known principle stated by Dixon J in Briginshaw v Briginshaw (1938 60 CLR 336 at 361-362. This is to the effect that what constitutes ‘reasonable satisfaction’ of the truth of an allegation made to a court or tribunal must be measured with reference to the ‘seriousness’ of the allegation, the ‘inherent unlikelihood’ of its being true and ‘the gravity of the consequences’ flowing from a finding that it is true.

18 In support of his argument that these two propositions applied to allegations of actual bias, Mr Garling cited a short passage in the judgment of Wilcox J in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 123. This was a case in which actual bias alone, not apprehended bias, was alleged and was found, by majority, to have been displayed by a member of a tribunal.

19 The Respondent submitted in response that Mr Garling, in claiming that the Briginshaw principles were applicable, was propounding an excessively high standard of proof.

20 If and to the extent that Mr Garling urged application of these principles on the ground that a finding of actual bias necessarily implied that the conduct of the judge or tribunal member was improper and could indeed be characterised as misconduct, we agree with the Respondent. As stated above, actual bias may be unconscious and unintentional. It does not necessarily involve judicial misconduct. A useful explanation of this issue is to be found in the judgment of Burchett J in Sun v Minister for Immigration and Ethnic Affairs, at 135-136.

21 This is not to deny, however, that as Wilcox J said in the Sun case, a finding of actual bias must be based on ‘cogent evidence’.

22 The matters relied on by the Respondent. The Respondent based his contention that in the interlocutory decisions in this case we had ‘demonstrated a pre-determination against him’ through rejecting, with one exception, every application and every argument made by him and upholding, again with one exception, every application and every argument made by the Bar Association.

23 In a summary of our interlocutory decisions forming part of his written submissions, the Respondent identified four applications by him (including the earlier application for us to disqualify ourselves) that we dismissed, together with a further ‘argument’ and a set of objections to evidence (put by him) that we rejected and two applications by the Bar Association that we granted. This summary also included the single application made by him that we granted, though it was erroneously depicted there as an application made by the Bar Association.

24 There were accordingly eight instances of our rejection of a position advanced by the Respondent and one instance of our acceptance of his position. The period of time covered by these decisions was more than 19 months, between 25 February 2004 and 4 October 2005.

25 The application by the Respondent that we accepted was an application for the separate determination of a preliminary question. We did so in an ex tempore decision made on 25 March 2004 (see Council of the New South Wales Bar Association v Archer (No 2) [2004] NSWADT 78 at [8 – 10]).

26 We outlined the three earliest instances of rejection of applications by the Respondent in Archer (4) at [13 – 26], alongside criticisms that he made of these decisions when claiming that we should disqualify ourselves. We labelled these three applications (as he had done in his submissions) ‘the summons decision’, ‘the extension decision’ and ‘the strike-out decision’. We will not repeat that outline here.

27 The fourth instance of rejection was our decision in Archer (4) itself, to the effect that on the basis of what was then put to us we should not disqualify ourselves, since neither actual nor apprehended bias had been established.

28 The remaining four instances of rejection can be summarised as follows:-

In a reserved decision delivered on 13 October 2004, we dismissed his application for an order setting aside a summons to produce documents addressed to a third party (while also allowing in part an application by his wife, which he sought to support, that a summons addressed to her should be set aside) – see Council of the New South Wales Bar Association v Archer (No 3) [2004] NSWADT 232.

In an ex tempore decision delivered on 27 May 2005 (for which we published written reasons on 4 July 2005), we held that the Tribunal had an implied power to order the recipient of a summons to produce documents to attend for examination as to whether the summons had been complied with – see Council of the New South Wales Bar Association v Archer (No 6) [2005] NSWADT 149.

On 26 July 2005, in the course of hearing an application by the Bar Association for an order that the Respondent be examined as to whether he had complied with a summons to produce documents, we disallowed, giving brief reasons and subject to two minor exceptions, a number of objections made by him to the admission into evidence of various documents tendered by the Bar Association. We subsequently published detailed reasons for this ruling – see Council of the New South Wales Bar Association v Archer (No 7) [2005] NSWADT 223 at [25 – 90].

In a reserved decision delivered on 4 October 2005, we granted the Bar Association’s application for an order that the Respondent and his wife be examined regarding compliance with this summons – see Council of the New South Wales Bar Association v Archer (No 7) [2005] NSWADT 223. In the examination that then took place, it was not clearly established that there had been non-compliance.

29 The Respondent’s submissions. In his written submissions on the present application, the Respondent referred to and supplemented briefly the criticisms of our ‘summons decision’, ‘extension decision’ and ‘strike-out decision’ (see [25] above) that he put to us in his earlier application for us to disqualify ourselves. He then criticised at greater length our dismissal of this application for disqualification and the four subsequent decisions or rulings that were adverse to him.

30 These criticisms of our decisions included detailed arguments about aspects of our reasoning, such as might be advanced in appeals against our decisions. They also employed phrases such as ‘flawed logic’, ‘defective reasoning’, ‘perfunctory and superficial’, ‘the referee favouring the home side’, ‘totally misunderstands the true legal position’, ‘the product of one of two states of affairs: a complete ignorance of the laws of evidence or inalienable bias against the Respondent’, ‘enthusiasm for allowing the Informant to bowl up any tripe it wanted in support of its Application’ and ‘the ultimate sacrifice of judicial discretion upon the altar of actual bias’.

31 By way of summarising his argument on actual bias, the Respondent contended that the Tribunal as presently constituted had ‘displayed personal prejudice’ against him, coupled with ‘an unerring desire to advance the cause of the Informant’ against him. He submitted that his application was not based solely on ‘statistics or probabilities’, although, as he added, ‘the chance of one party losing 8 out of 9 interlocutory applications in what has become complex litigation is, by common experience, remote’. He pointed out that except in one instance the Bar Association had never suggested that any of his applications or arguments were wholly untenable. In these circumstances, he said, our decisions rejecting eight out of nine interlocutory points argued by him ‘needed to be looked at closely to determine whether or not the losses were fair, or whether there is another explanation for the overwhelming preponderance of failure’. Having regard to the defects exposed by his criticisms of these decisions, the ‘apparent explanation’ was the existence of actual bias against him ‘that has given rise, in each case, to a pre-determination against him on the part of the Tribunal’.

32 The Bar Association’s submissions. The four principal points made by Mr Garling in relation to the claim of actual bias were these.

33 First, even if the principles stated in Briginshaw did not necessarily apply in all cases where actual bias was alleged against a judge or tribunal member, they were clearly applicable here. This was because the Respondent argued that each one of us had independently displayed ‘consistent actual bias against him’ and had engaged in ‘decision making consciously designed to disadvantage him’. He had attributed these matters to ‘personal animus towards him or alternatively a bias in favour of the Informant’, thereby necessarily implying that we had ‘acted in concert in an improper way’. On this reasoning, Mr Garling argued, we must apply the principles stated in Briginshaw and require that the Respondent’s allegation of bias be proved to a high degree of satisfaction. We were bound not to draw any inference of bias where from the matters relied on some other reasonable inference was open to us.

34 Secondly, the Respondent had not identified any passages in our reasons for our various decisions or in the transcript of the relevant hearings where we, or any one of us, had displayed actual bias. During these hearings, none of us, for instance, had made a comment reflecting expressly and adversely on his credibility as a witness or on the credibility of any witness called by him. Instead, his submissions were based solely on the results of these hearings, taken in conjunction, and on the criticisms that he made of the ways in which they were reached.

35 Thirdly, in relation specifically to these criticisms, the Respondent had not taken any account of the evident fact that our decisions were reached following consideration, frequently lengthy consideration, of the evidence and the submissions that we believed to be relevant.

36 Fourthly, it was highly significant that he had not challenged any of our decisions on appeal, despite claiming that they were all seriously deficient.

37 Our conclusions on actual bias. As we said in Archer (4) at [35], we are not aware of any decided case in which an application for disqualification alleging actual bias has been granted solely or substantially on the ground of alleged inadequacies in decisions already made in these proceedings. Neither in the hearing resulting in our judgment in Archer (4) nor in the present hearing have the parties to these proceedings been able to draw our attention to any such case.

38 In Archer (4) at [43], we said, referring to the three decisions adverse to the Respondent that we had made at that time:-

In our roles as the authors of these decisions we, of course, acknowledge that they may contain defects. But after being pressed with a contention that, at some stage, we must have arrived at a pre-determination against the Respondent, we cannot make the finding that such defects as exist in the decisions necessarily require this conclusion to be drawn. Some remarks that we will make about the decisions in dealing with the claim based on apprehended bias are also relevant to what we have just said.
39 In the present application, the Respondent’s lengthier and even more trenchant criticisms of a larger group of decisions made by us highlights further a fundamental problem underlying both of his applications for us to disqualify ourselves, in so far as they have been based on actual bias. This problem stems from the fact that in the earlier application he relied predominantly, and in the present application entirely, on the overall pattern displayed by our interlocutory decisions and on what he alleged to be serious deficiencies in them. As Mr Garling emphasised, the Respondent could not point to any specific observation by us or any one of us, or any other element in our conduct during the proceedings, that gave grounds for inferring actual bias.

40 This problem can be explained by pointing out that acceptance of his argument, then and now, would require us to make, in relation to each one of us, one of other of two rulings.

41 In effect, the Respondent asked us then, and asks us now, to rule either (a) that some or all of us have known all along that our decisions were seriously deficient, but persisted nonetheless in preparing and delivering them in order to indulge conscious desires to disadvantage him and/or benefit the Bar Association at all costs, or (b) that we have come to realise that by virtue of harbouring unconscious biases against him and/or in favour of the Bar Association we made numerous serious errors in our decisions, which we must acknowledge as a first step towards making a finding of actual bias.

42 The first of these rulings entails our determining that one or more of us intentionally breached our fundamental obligation, as a Tribunal member, to seek to decide matters impartially. The second requires us both to discern within ourselves what was, by hypothesis, an unconscious impulse to continue to favour one party over the other and then to hold, without the benefit of any determination at appellate level regarding the quality of our decision-making, that most if not all of what we believed to be correct and well reasoned decisions were in fact incorrect and poorly reasoned on account of this unconscious impulse.

43 It may fairly be argued that judges or tribunal members are simply unable, or at least cannot properly and realistically be asked, to make either of these rulings, or at least not the former ruling, in relation to themselves. If such rulings are to be made – and cases such as Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 illustrate that they can and at times must be made – it must be by some other body, such as a higher court reviewing the decision or decisions said to have been infected by actual bias. It is not for us, having discharged to the best of our abilities our duty to determine judicially a number of questions arising in these proceedings, to assume the role of such a court and, in effect, hear and determine an appeal against the decisions that we ourselves made.

44 If on the other hand the members of a panel such as this Panel can be asked to make either or both of these rulings, the decision that we reach now, in relation to each of us individually and to our fellow Panel members, is that neither of them is justified in the present case. We say this after carefully reviewing our own individual participation, and that of our fellow members, in these proceedings, and after taking account of the Respondent’s criticisms of our decisions and his accompanying submissions based on the fact that the preponderance of those decisions were indeed adverse to him.

45 For these reasons, we reject the Respondent’s claim that in our decisions so far we have displayed actual bias by virtue of any pre-determination against him.

Apprehended bias

46 As was the case in Archer (4), there was broad agreement between the parties as to the general principles relating to disqualification on the grounds of apprehended bias. But there were also some differences of emphasis.

47 An slightly adapted and abbreviated version of the outline contained in the Respondent’s written submissions is as follows:-

1. It is essential to avoid any appearance of judicial bias because public confidence in the administration of justice will be eroded if fair-minded people – or indeed one or more of the parties to the proceedings –reasonably apprehend or suspect that a court or tribunal has prejudged a decision: see e.g. R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263, 265; Webb v R (1994) 181 CLR 41 at 68.

2. ‘…the governing principle is that… a judge is disqualified if 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’: Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 at 344 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ; see too Johnson v Johnson (2000) 201 CLR 488 at 492; Antoun v R [2006] HCA 2 at [82 – 83], [91].

3. ‘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’: Ebner at 345 [7].

4. Consideration of a claim of apprehended bias ‘requires two steps. First, it requires the identification of what it is said 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’: Ebner at 345 [8].

5. In assessing such a claim, ‘realistic criteria’ must be applied: Kwan v Kang & Ors [2003] NSWCA 336 at [77 – 83].

6. Attributes and knowledge that ‘fair-minded lay observers’ would not ordinarily possess should not be attributed to them. The assessment should be made ‘by reference to an impressionistic, and to some extent superficial, opinion based on a consideration of the broad features of the allegation made. It is not made upon a detailed exploration of and the lengthy rumination about the legal or other merits of it’: Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (No 9), unreported, Court of Appeal, NSW, 27 November 1990, per Kirby J (quoted by him in Australian National Industries Ltd v Spedley Securities Ltd (In Liq) (1992) 26 NSWLR 411 at 419-420).

48 Mr Garling specifically referred to the first four of these propositions, emphasising the fourth in particular. In addition, he drew our attention to a number of other statements of principle, including the following:-
1. Apprehended bias must be ‘firmly established’: R v Commonwealth Conciliation and Arbitration Commission: Ex parte Angliss Group (1969) 122 CLR 546 at 553-554.

2. The subjective expression of an apprehension of bias does not establish that it is reasonably held. That must be determined objectively: R v Grassby (1989) 168 CLR 1 at 20.

3. ‘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’: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352, per Mason J; and see Ebner at 348 [20 – 21], 380 [137].

4. ‘Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting or continuing to sit then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case’: Ebner at 348 [19]

49 The Respondent’s submissions. The Respondent contended as follows in his written submissions: -
… a fair-minded lay observer, who had knowledge of all the relevant facts, including the arguments placed before the Tribunal and the contents of the several judgments, without any sophistication and knowledge of the law, nevertheless might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the proceedings.
50 The Respondent relied on the same material and the same arguments as he put before us in relation to his claim of actual bias. In addition, he invited us to imagine ‘a robust conversation between ordinary citizens on the Emu Plains omnibus’ (the reference is to a passage in the judgment of Kirby P in S & M Motor Repairs Pty Ltd v Caltex Oil Australia Pty Ltd (1988) 12 NSWLR 358 at 375-376), in which one participant described what we have called the eight ‘instances of rejection’ by us of applications or arguments advanced by the Respondent, indicating that, at least in the Respondent’s opinion, these rejections were entirely unwarranted. He submitted that even if one or more other ‘ordinary citizens’ hearing this description were also told that we had given detailed reasons for our decisions and that we believed these decisions to be correct, they would still conclude that we could not ‘bring an impartial mind’ to the hearing of the case against him or afford him ‘a fair hearing’.

51 The Respondent stressed that it was sufficient for him to establish that this reaction on the part of a hypothetical ‘ordinary citizen’ was just a ‘possibility’. It did not have to be the most likely reaction.

52 The Bar Association’s submissions. Mr Garling emphasised the established principle, outlined above, that judges and tribunal members should not disqualify themselves too readily on grounds of apprehended bias, but only when a substantial ground for so doing had been affirmatively shown.

53 In addition, he drew our attention to the passage in the joint judgment in Ebner at 345 [8] (see [47] above) in which their Honours outlined ‘two steps’ to be taken when assessing a claim of apprehended bias. The first of these, he pointed out, was to identify ‘what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits’. In this connection, he submitted, ‘the Respondent can only point to his lack of success in interlocutory decisions. This is clearly insufficient.’ He argued that furthermore the Respondent had not identified ‘the second step’, namely, ‘articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits’.

54 Our conclusions on apprehended bias. For reasons that overlap, to some extent, with those articulated above in dealing with the claim of actual bias, we do not accept the Respondent’s claim of apprehended bias.

55 An important weakness that in our view is to be found in his submissions, specifically those based on a hypothetical ‘robust conversation between ordinary citizens on the Emu Plains omnibus’, is as follows.

56 He did not argue that those hearing the imaginary description of the progress of this case would or might reasonably apprehend bias solely on the ground that we had decided eight matters against him and only one in his favour. If that alone were sufficient, it would be all too easy for a determined litigant to bring about the disqualification of a bench or tribunal panel simply by making a series of clearly unmeritorious applications and then claiming, after they had all been appropriately dismissed, that apprehended bias had been established. This is another way of making the point underlying Mr Garling’s submission that ‘the Respondent can only point to his lack of success in interlocutory decisions. This is clearly insufficient.’

57 Instead, the description set out in the hypothetical conversation included highly critical comments on the quality of the decisions that we have given against the Respondent. The suggested observations included ‘entirely devoid of any proper reasoning’, ‘plainly illogical reasoning’, ‘a misunderstanding of the relevant principles’ and ‘findings that were of dubious correctness’. In these circumstances, the reactions of ‘ordinary citizens’ that we are asked to envisage might indeed possibly be that we could not bring an impartial mind to the future resolution of the case.

58 For reasons that we have already given, however, at [41 – 44] above, we do not believe that in the absence of any appellate rulings as to the merits of our decisions we should ourselves find that our decisions were incorrect. The Respondent’s submissions at this point are based on the proposition that for present purposes we should determine, or at the very least assume, that all or virtually all of these decisions were not just incorrect but manifestly so. This is not, in our judgment, a course that we can or should adopt.

59 In addition to these observations, we rely on the matters that we outlined in Archer (4) at [46 – 51, 53 – 57]. We recognise that the material relied on by the Respondent in this application differs significantly from the material on which that decision is based. But the same general considerations are relevant to our determination.

60 For these reasons, we dismiss the Respondent’s application in so far as it is based on the second ground advanced by him.

Prejudgment

61 The starting-point for this part of the Respondent’s case was that in the latest of our interlocutory decisions, Council of the New South Wales Bar Association v Archer (No 7) [2005] NSWADT 223 (hereafter ‘Archer (7)’), we made a finding at [110] that there was a ‘real issue’ as to whether he had complied with the requirements of a summons to produce documents that had been issued by the Tribunal at the Bar Association’s request. His response to the summons (as described at [25 – 26]) had in fact been to send a number of documents to the Tribunal, together with a covering letter stating that these comprised all the documents within the scope of the summons that were in his possession at the time when it was served on him. Our finding was based on evidence adduced by the Bar Association suggesting that he might in fact have had other such documents at this time. On the basis of this finding, we ordered that he should attend for examination as to whether he had in fact complied properly with the summons.

62 In his written submissions, the Respondent contended that in so determining we had made ‘a critical credit finding’ against him. We had held that he, an officer of the Court with many years’ experience as a barrister, ‘might not understand his obligations to the Tribunal and might reasonably be expected to have concealed documents from production to the Tribunal’. This constituted a ‘grave reflection’ on his integrity.

63 The consequence, he submitted, was that a fair-minded lay observer might conclude that we had formed opinions as to his credit that might affect our future determination of this same issue at the hearing of these proceedings. Since there was ‘reasonable apprehension of possible bias by pre-judgment’ we should disqualify ourselves from future participation in the proceedings.

64 In three of the cases cited by the Respondent – Australian National Industries Ltd v Spedley Securities Ltd (In Liq) (1992) 26 NSWLR 411, Southern Equities Corporation Ltd (In Liq) v Bond & Ors (2000) 78 SASR 339 and Kwan v Kang & Ors [2003] NSWCA 336 – it was held on appeal that a judge, having made an adverse finding of this nature against a party or witness, should have acceded to an application to disqualify himself on this ground of pre-judgment bias.

65 The submissions advanced in response by Mr Garling brought together five propositions. These were as follows:-

(1) Even if this finding by us in Archer (7) provided grounds for a ruling of apprehended bias by virtue of pre-judgment, that would only preclude us from sitting in subsequent hearings in which the Respondent’s credit was or might be in issue.

(2) The hearing of the Respondent’s current application to set aside two summonses to produce (see [5] above) was not in this category.

(3) The authorities on apprehended bias showed that a decision on this matter should, or at least may, be made with reference to a single question or group of questions immediately posed for determination, rather than to the future proceedings as a whole.

(4) There were, to say the least, no practical objections to our determining the Respondent’s application for our disqualification by reference only to our participation in the forthcoming hearing or hearings relating to the two summonses.

(5) In any event, our finding in Archer (7), correctly characterised, was not in fact an explicit adverse finding regarding the Respondent’s credit. In consequence, the principles relating to apparent bias on grounds of pre-judgment were not, after all, applicable.

66 In his submissions in reply, the Respondent acknowledged that he could not dispute propositions (1) and (2). He submitted, however, that the relevant authorities did not establish proposition (3) and he disputed proposition (4).

67 In seeking to support proposition (3) – viz, that a decision on apprehended bias should, or at least may, be made with reference to a single question or group of questions immediately posed for determination by the relevant court or tribunal, rather than to the future proceedings as a whole – Mr Garling relied on the following statement that we have already quoted from Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 at 344 [6], per Gleeson CJ, McHugh, Gummow and Hayne JJ:-

‘…the governing principle is that… a judge is disqualified if 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).
68 Both through questions to Mr Garling at the hearing and through some subsequent research, we have endeavoured to ascertain whether the proposition that he sought to derive from this statement is in fact sustainable on the authorities. Neither he nor the Respondent cited any case other than Ebner on this point.

69 A formulation such as this one in the joint judgment in Ebner, using a phrase such as ‘the question the judge is required to decide’, appears in other judgments in the same case (see for example the joint judgment at [7], Kirby J at [33] and Gaudron J at [83]). It appears also in Johnson v Johnson (2000) 201 CLR 488 at 492 [11], this being a case cited more than once in Ebner as authority for the statements of principle set out in the judgments. Yet these judgments in Ebner also formulate the issue to be resolved, without commenting on the difference, as whether or not the judge can impartially decide ‘the case’: see for example the joint judgment at [8] and Kirby J at [30].

70 We note also that in one of the authorities relied on by the Respondent, Australian National Industries Ltd v Spedley Securities Ltd (In Liq) (1992) 26 NSWLR 411, the Court of Appeal paid significant attention to the practical issues raised when, in lengthy or complex litigation, disqualification of a judge is sought on the ground that decisions made during the interlocutory stages create an apprehension of bias on the ground of pre-judgment. At 422-423, Kirby P referred to the possibility that a judge in this situation might legitimately continue to conduct interlocutory proceedings ‘leaving the conduct of the trial to a judge who is unaffected by earlier opinions and unembarrassed by having given voice to those opinions’.

71 In our judgment, the outcome of these admittedly limited references to this question in the case law is that we are not precluded by the authorities from determining the issue of apprehended bias with reference only to the single question or group of questions that is immediately posed for determination in the proceedings. In the present case, the relevant questions are those relating to whether the summonses that the Respondent has challenged should be set aside.

72 We turn now to the fourth of the five propositions in which we have sought to crystallise Mr Garling’s arguments – viz, that there are, to say the least, no practical objections to our determining the Respondent’s application for our disqualification by reference only to our participation in the forthcoming hearing or hearings relating to the two summonses. We acknowledge that, as the Respondent argued, there would be practical disadvantages in our ruling that we may properly hear interlocutory matters arising in this case so long as the issue of his credit does not arise. This course of action raises the prospect of further applications for disqualification made with reference (at least) to the final hearing.

73 Mr Garling pointed out, however, that no date had yet been set for the final hearing, that the composition of the Panel might in any event change before that hearing and that it was not yet clear that issues relating to the Respondent’s credit would necessarily arise. He did so while adhering to his fifth proposition, i.e., that the particular finding on which we based our decision in Archer (7), when correctly characterised, was not in fact an explicit adverse finding regarding the Respondent’s credit.

74 We would add from our own knowledge of Tribunal procedure that while case management by a single Tribunal member or panel is standard practice, it is by no means inflexible. If it were determined at some future stage that we should disqualify ourselves from conducting the final hearing of this Information, the Tribunal could be constituted by another panel which, to quote Kirby P in the Spedley case, would be ‘unaffected by earlier opinions and unembarrassed by having given voice to those opinions’.

75 In our judgment, it is permissible according to the case law and appropriate in the present circumstances that we should assess the Respondent’s submissions regarding pre-judgment bias by asking the following question: would a fair-minded lay observer reasonably apprehend that we might not bring an impartial mind to the resolution of the questions that we are required to decide in hearing the Respondent’s current application to set aside two summonses?

76 Having regard to the Respondent’s concession noted above at [66] and to our earlier rulings in this judgment, we hold that this question must be answered in the negative. Accordingly, the Respondent’s application for us to disqualify ourselves from any further participation in these proceedings has not been made out on the third ground advanced by him, nor indeed on the basis of all three grounds when considered in conjunction.

77 We do not propose at this stage to determine whether the finding that we made in Archer (7) does or might provide grounds for us to disqualify ourselves on grounds of pre-judgment bias from the hearing of any subsequent matters arising in this case.

Our orders

1. We accordingly dismiss the Respondent’s application for an order disqualifying ourselves from the further hearing of these proceedings on the ground of actual or, alternatively, of reasonably apprehended bias.

2. The matter is set down for further directions at 9.30 a.m. on 20 November 2006.