Plenty and Plenty v Seventh Day Adventist Church No. SCGRG 82/1632 Judgment No. 6133 Number of Pages 24 Procedure
[1997] SASC 6133
•29 April 1997
IN THE SUPREME COURT OF SOUTH AUSTRALIA
LANDER, J
Procedure - courts and judges generally - judges - disqualification for interest or bias - application by plaintiffs seeking to ask the Judge to disqualify himself upon the ground that his hearing the case might lead the parties or the public to entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the matter - on the first occasion when the matter was listed Judge brought to the attention of the plaintiffs that he had acted as counsel for the defendant in relation to the matter some years earlier - no objection taken at that time - proceedings since changed and the point is no longer a live issue - only after argument did the plaintiffs object to the Judge hearing the matter - whether there are any facts or circumstances which make it necessary for the Judge to cease to hear any aspects of the matter. Plaintiff waived any right they had to have the Judge disqualify himself in relation to the previous involvement - it is impermissible for one party to maintain as a tactical advantage the right to require a Judge to disqualify himself or herself - exchanges between the Judge and the parties in argument were misinterpreted by the plaintiffs and could not lead a party or the public to a reasonable apprehension of bias - application dismissed. Livesey v New South Wales Bar Association (1983) 151 CLR 288; Re JRL; Ex Parte CJL (1986) 161 CLR 342; Re Polites; Ex parte The Hoyts Corporation Pty Ltd (1991) 173 CLR 78; Metcalf v Permanent Building Society (1994) 13 WAR 349; Re Shaw; Ex Parte Shaw (1981) 55 ALJR 12; Vakauta v Kelly (1989) 87 ALR 633, applied. Plenty v Seventh Day Adventist Church of Port Pirie (1986) 40 SASR 443; Plenty v Seventh Day Adventist Church of Port Pirie (1986) 43 SASR 121, discussed.
ADELAIDE, 7 April 1997 (hearing), 29 April 1997 (decision).
#DATE 29:4:1997
#ADD 5:5:1997
Plaintiff Sydney Graham Plenty & Deanne Plenty:
Counsel: In Person
Defendant Seventh Day Adventist Church Of Port Pirie:
Counsel: Mr G L Muecke
Solicitors: Clelands
Order: application dismissed.
LANDER J
1. This is an application by the plaintiffs seeking to ask me to cease to hear any further aspects of these proceedings upon the ground that my hearing this case might lead the parties or the public to entertain a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the matter. The defendant opposes the application.
2. The circumstances giving rise to this application are somewhat complex so I shall recite the facts leading up to this application in some detail.
3. On 28 June 1982 the plaintiffs commenced this action seeking a declaration and claiming damages against the defendant.
4. The plaintiffs were members of the defendant Church for a number of years prior to 1 December 1979. They allege in their Statement of Claim that on 26 November 1979, by letter addressed to each of them, the defendant Church notified them that their membership with the church would be brought into question at a business meeting of the members of the Church to be held on 1 December 1979. They allege that each of them were given reasons for their membership of the Church being brought into question. Neither of the plaintiffs attended the meeting on 1 December 1979, but it is alleged that at that meeting a resolution was passed that their names be removed from the Church role for the reasons alleged in the statement of claim. They both allege that they were jointly notified of that resolution by the Church on 2 December 1979.
5. The plaintiffs claim that their membership of the Church was wrongly terminated and in their statement of claim they have given extensive particulars of those grounds. It is not necessary for the purpose of these reasons to deal with any of those matters.
6. They claim that they are entitled to a declaration that "the purported termination of their membership of the said Church on the 1st day of December 1979 was illegal, null and void and/or alternatively was contrary to natural justice." They also claim that as a result of the wrongful termination of their membership they have suffered damage, and in their statement of claim they set out particulars of the damage said to be suffered as a result of the Church's action.
7. There have been numerous interlocutory procedures in this matter and, fifteen years after the matter commenced with the issue of the plaintiffs' writ, the matter has still not been set down for trial.
8. In 1995 I was asked by the Chief Justice to assume the management of this action and other actions in which Mr and Mrs Plenty were plaintiffs, for the purpose of dealing with any outstanding interlocutory matters and hearing the trial of this and those other actions.
9. When I was asked to assume that responsibility I brought to the attention of the Master, Judge Anderson, who was then handling the management of the actions in which Mr and Mrs Plenty were involved, that some years ago I had been briefed on behalf of the defendant in this action to present an argument of law seeking to have this action dismissed upon the ground that it was not justiciable in the courts. I accepted that retainer on behalf of the defendant and argued the matter before Bollen J, who acceded to the argument and dismissed this action. Subsequently the plaintiffs appealed from that decision to the Full Court of the Supreme Court and their appeal was upheld. I did not appear on behalf of the Church in relation to that appeal. I gave no further advice nor accepted any other retainer in respect of this matter.
10. I was led to understand that the Master had brought that to the attention of the plaintiffs at the time he advised the plaintiffs that I would assume the management of this and the other actions. I will return to that matter in due course.
11. I first assumed management of these actions on 1 August 1996. On 22 October 1996 Mr and Mrs Plenty applied to strike out the amended defence filed by the defendant for a number of reasons which are, for the purpose of this application, unimportant. They also sought in the same application "judgment in favour of the plaintiffs for immediate relief by way of declaration sought by the plaintiffs in paragraph 12 of the Amended Statement of Claim, and an order that the defendant pay damages to be assessed". They sought alternative orders which are not important. The application to strike out and for judgment was supported by an affidavit of the plaintiffs. In response to that application the defendant sought leave to amend its defence. I listed those matters on 12 December 1996 for a preliminary hearing and after some discussion I set the matter for hearing on Wednesday 18 December 1996. At the hearing of 12 December 1996 Mr Muecke, who appeared for the defendant, advised that his instructions were not to proceed with the application to amend to which I have referred. At that time, without opposition on the part of the defendant, I limited the evidence which the defendant could bring forward in opposition to the plaintiffs' application. Therefore the only matter said to be heard on 18 December 1996 was the plaintiffs' application to strike out the defence and the plaintiff's application for judgment.
12. Prior to hearing of that application Mr and Mrs Plenty filed a written outline of submissions setting out in considerable detail the grounds upon which their application was made. The written outline comprised more than fifty pages. As well Mr and Mrs Plenty advised my associate in writing that they would be referring to nineteen authorities which they identified. The defendant also filed an outline of argument in relation to the application.
13. The matter was heard on 18 December 1996.
14. In the defendant's outline in opposition to the application to strike out the defence, the defendant submitted: "1. This case raises certain issues of law to be tried and determined, including: (a) whether the plaintiffs' cause is justiciable (b) ..."
15. During the argument on 18 December 1996 I said to Mr Muecke who appeared for the defendant: "HIS HONOUR: Mr Muecke, I have read your outline.
MR MUECKE: Para 1 (b) of the outline perhaps identifies a principle issue.
HIS HONOUR: Before you go to that, does your client still take issue on 1a?
MR MUECKE: Yes.
HIS HONOUR: Hasn't that been decided by the Full Court?
MR MUECKE: No. As I read the decision, what was decided was there was a sufficiently arguable issue to refuse summary judgment to the defendant, putting it shortly, but it didn't decide. In fact, Matheson J, I think, suggested three areas where a proprietary interest might arise sufficient to activate the jurisdiction of the court. That was a matter which the plaintiffs' then counsel earlier in these proceedings identified as some agreement on the facts, but not an issue which has been resolved in favour.
HIS HONOUR: You would still be arguing that this is not a matter in which the court can intervene in any event?
MR MUECKE: Yes. That was identified, I think, by Mr MacNamara on behalf of the plaintiffs in Vol 2, pages 6-7 down the bottom of page 6 and more on page 7 than anywhere else.
HIS HONOUR: I follow."
16. The defendant raised a number of further matters in opposition to both the application to strike out and for judgment by way of immediate relief. It is not necessary to detail those matters or indeed to comment upon those submissions, because the plaintiffs' applications, in light of the events that followed, have still not been decided. In relation to the declaration and damages that were sought an exchange occurred between Mr Muecke and I myself. I set out that exchange: "HIS HONOUR: That's what they have said. That's what their declaration is on p.39 of the statement of claim. The purported termination was illegal, null and void and alternatively was contrary to natural justice. I suppose that could include, inferentially, it was illegal because they weren't guilty of grievous sins, the argument's (sic) as put today, it's a procedural fairness case.
It suddenly occurred to me after Mr Plenty completed, if they still pursue an application for damages they will have to establish they could never have been expelled otherwise they would have suffered a damage, in any event.
MR MUECKE: Yes, that hadn't occurred to me, but that would certainly have to be established.
HIS HONOUR: That means there has to be an enquiry, if the claim for damages is pursued there has to be an enquiry as to whether or not their conduct was sufficient to expel them, in any event.
MR MUECKE: Yes.
HIS HONOUR: I'll ask Mr Plenty about that later, it didn't occur to me until later.
I raised the question of damages with Mr Plenty and I set out the exchange in full.
HIS HONOUR: Mr Plenty, can I raise a couple of matters arising out of what Mr Muecke put.
In your claim, on p.39 of your statement of claim, is the plaintiffs' declaration, para.12, and in para.12A you make a claim for damages. If you have an entitlement to damages, it will require an examination as to your conduct, won't it? The court couldn't find that you have suffered any damage unless it was satisfied that you would not have, in any circumstance, been expelled for the conduct that existed before November 1979.
MR PLENTY: I am not sure why that - the authorities are saying that it doesn't matter how harsh or unjust the tribunal has treated you, the court can't go into the matter.
HIS HONOUR: But for damages, not for the reason as to expulsion itself. Since you make a claim for damages for which you must prove you wouldn't have been expelled if properly treated, that means you have got to inquire into your conduct.
MR PLENTY: My question; why would that follow that you have to prove that, in other words to say that there didn't deserve to be a disfellowship?
HIS HONOUR: The defendant would say at trial 'Even if we didn't observe procedural fairness, there would have been a disfellowship. Therefore, the damage that you would have suffered was inevitable'.
MR PLENTY: That seems to be taking natural justice a step further.
HIS HONOUR: It's a concept of damages. It assumes that you won the case, that is you win the case by establishing a breach of natural justice. The defendant would still say 'So what? You can have your declaration that you seek in para.12 but if you want damages, I tell you now, you would have been the victim of a disfellowship anyway and you have not suffered damages'.
MR PLENTY: It seems to me to be taking the authorities to an extent that - the truth of the matter wasn't available to us of what - we have had to come back to what the procedures are saying.
HIS HONOUR: I appreciate that. All I am putting to you is that if you are right, that is if the church has been guilty of a breach of natural justice, which is your case, it still means there has to be an inquiry as to whether or not your conduct was such you could have been a victim of disfellowship because, if you would have been subject to disfellowship in any event, you haven't suffered any damage.
MR PLENTY: The point that I think - where the concept is being turned around is the fact that you don't - under church procedure, it's got nothing to do with right or wrong. It's really a question of repentance and forgiveness. That is the thrust of what the doctrine is saying.
HIS HONOUR: I follow that.
MR PLENTY: If you don't have that opportunity, then it is a lost opportunity.
HIS HONOUR: I follow that. Mr Muecke would say "There you are; you, by that answer, have introduced a further factual matter into the case which goes outside the pleadings because there will have to be an inquiry as to whether or not anyone could ever have been a victim of disfellowship in these circumstances'.
MR PLENTY: I guess the point is that the procedures are such - this is a misconception again that goes with the same situation in saying there was a right of appeal. There is no right of appeal under the manual. If I can deal -
HIS HONOUR: I understand your point.
MR PLENTY: The point is it all has to be done beforehand. There are sequences that have to be done. There is no right of appeal. You have to be aware of the wrong so that you can confess to what you have done.
HIS HONOUR: I understand that point. I am assuming you are right at the moment. In winning it, you are going to have an inquiry as to whether your conduct was such you would have been subject to disfellowship. I have made that point. If you want to think about it, think about it.
Whilst you have a claim for damages there, it seems to me you have to make an inquiry into your conduct. Think about that."
17. I then went on to put to Mr Plenty other arguments advanced by Mr Muecke, for the purpose of allowing and assisting Mr Plenty to reply to these submissions.
18. At the conclusion of the argument I said this to Mr Plenty: HIS HONOUR: Before we started I offered you the opportunity to put anything else in writing if you wished to. Do you still wish to do that? I'm not taking the right away from you, you may wish to consider the question I asked you about damages.
MR PLENTY: Yes.
HIS HONOUR: And if you do wish to put something in writing, then I'll give you time now to do it.
MR PLENTY: Yes.
HIS HONOUR: But I'd like to know now if it's likely that you will, otherwise I will put the papers away until I've received something from you.
MR PLENTY: I'd like to leave the right open at this stage. If I'm not going to, I guess the appropriate thing, we will let you know.
HIS HONOUR: Thank you. How long do you need?
MR PLENTY: Near the latter part of January.
HIS HONOUR: Twentieth?
MR PLENTY: Twenty-fifth?
HIS HONOUR: The reason I say the twentieth, we are meeting again on the twenty-second, so it's all done.
MR PLENTY: Yes, your Honour.
HIS HONOUR: Are you happy with that?
MR MUECKE: Yes. I'll try and give your Honour those authorities this week if I can.
HIS HONOUR: Would you mind sending a copy of that to Mr and Mrs Plenty in case they want to add any authorities to their list.
MR MUECKE: Yes.
HIS HONOUR: Otherwise I'll give Mr and Mrs Plenty leave to supplement their submissions by 20 January and leave to Mr Muecke, so far as you are advised, to reply by the twenty-second.
Just before I reserve my decision, I mentioned on the last occasion, Mr and Mrs Plenty, I will be meeting Mr Muecke on a social occasion later this week. I will tell you again so there's no misunderstanding about it, but you can understand, whilst I'll meet him socially, neither of us will say anything about this case at all.
MR PLENTY: Thanks for raising the matter.
HIS HONOUR: You should know about it.
DECISION RESERVED
19. The plaintiffs responded to the leave given on 18 December by tendering a written outline which they entitled: "Written Outline of Submissions of the Plaintiffs in Reply to the Matters before the Court on December 18, 1996, and requested by His Honour Judge Lander, for the 20th January 1997."
20. In the written outline delivered in response to the leave the plaintiffs wrote this: "1. In the defendant's Outline of Argument of Defendant, given to us on the 18th December 1996, the defendant has raised the issue in paragraph 1.(a), 'Whether the plaintiff's cause is justiciable'; and His Honour in fact brought this question to Mr Muecke's attention; (at page 30 of the transcript).
Apparently His Honour was of the belief that, that question had been decided by the Full Court in Plenty v Seventh Day Adventist Church of Port Pirie, (1986), 43 SASR, 121."
21. They went on to say: "When we agreed to His Honour Judge Lander being the Trial Judge in this matter, we did not contemplate the question of the justiciableness of the action re-arising ..."
22. By the statement in that submission, the plaintiffs acknowledged that they had agreed that I would be the trial judge and having regard to the context in which the words are written ("in this matter") the statement can only mean at some stage prior to the application which gave rise to this matter, the plaintiffs agreed that I would be the trial Judge in the action in which they were suing the Seventh Day Adventist Church.
23. Later they wrote: "However, we strenuously submit that this is a question that His Honour Judge Lander cannot be involved in, for two reasons:-
1. He was counsel for the defendant against us on this point before Justice Bollen, and,
2. The Full Court have already adjudicated on the matter, and we submit that it is they that must clarify that adjudication."
24. The plaintiffs then dealt with other matters in reply to Mr Muecke's submission and then went to their third point. They wrote: "3. On the 18 December 1996 His Honour Judge Lander raised a matter for us to "think about" in regard to damages, and it made several statements to us in this regard; two of those statements were as follows:-
HIS HONOUR: The defendant would say at trial 'Even if we didn't observe procedural fairness, there would have been a disfellowship. Therefore, the damage that you would have suffered was inevitable.
HIS HONOUR: I understand that point. I am assuming you are right at the moment. I am assuming you are going to win the case. In winning it, you are going to have an inquiry as to whether your conduct was such you would have been subject to disfellowship. I have made that point. If you want to think about it, think about it.
Whilst you have a claim for damages there, it seems to me that you have to make an inquiry into your conduct. Think about that."
25. In response to what I said in that exchange they wrote: "We submit that His Honour is totally wrong, and we believe that we have been unfairly "challenged" and "embarrassed" to extract justice out of a repugnancy."
26. They then went on to make a number of statements in relation to the comments which I had made describing those comments as, "pregnant with mischief" and that "the principle of this proposition is absolutely flying in the face of" is "hypothetical, insensible, repugnant and contrary to a number of other matters". They then submitted that my comments amounted to a denial of natural justice and involved the raising of double standards.
27. They put this: "3.7 But irrespective of all the aforesaid, what His Honour is now saying, is that if it is found that the defendant did not follow proper procedure and/or, natural justice, we will not be entitled to any "consequential relief" in the form of damages, unless we can prove ourselves innocent, in other words, we cannot succeed against the defendant in damages in a "non-innocent or guilty" procedure.
We strenuously submit that this is double standards against us as it:
(a) does away with the 'sui generis" and "no trial de nova" with one standard but not the other, and
(b) has made damages "foreign" to the declaration when the damages are in fact "consequential" to the declaration; (definition of "foreign" from Osborn's Concise Law Dictionary - "outside the jurisdiction"); and
(c) it "files in the face of", and is in total contradiction to equity and natural justice in itself, and also, all of the authorities we have submitted in our submissions etc., as:"A number of attacks were made upon the statements which I had made during argument. It was put that: "the overall generality and the mischief, is in the fact the His Honour's statements have made it issues out of damages, and this is an overwhelmingly, unconscionable situation to us, especially when one considers the position, we, as the plaintiffs are placed in when ..."
28. In another part of the lengthy submission it was put: "... and, we further submit that the Court, through His Honour Judge Lander, has to make the hard decision and decipher the law in these matters. It is not for His Honour to put these matters into the 'too hard basket' and then 'throw it back to us' for a 21 days, or more, Trial, to which we can only ask the question, a 21 day trial on what?; and then blame us for the delays, when we are diligently trying to resolve the matter by law, and or, have the direction of the matter resolved, as Acting Judge Boehm said on the 27 July 1994."
29. The submission completed in the following terms: "We have at all times brought our matters to this Court and specifically to His Honour Judge Lander, in good faith,; and because we have wanted to have continuity of the action to the resolution of it.
We have also endeavoured to be broad minded over anything His Honour has said to us, and informed us of, however, our problem in this situation is in the fact that His Honour's statements, as we have submitted, goes to a revamping of matters that went before Justice Bollen, (before whom His Honour Judge Lander was then counsel for the defendant against us), and was then successfully appealed by ourselves to the Full Court.
Therefore, in not knowing what is in His Honour's mind in regard to this subject matter, we are unable to know what we should do; and we can only therefore, leave it to His Honour's integrity as to whether or not he believes he is in an impartial state of mind to continue or not."
30. After receiving those submissions I immediately called the matter on and I advised the parties that the submission clearly raised a question of whether or not I ought to disqualify myself. I explained to Mr and Mrs Plenty that they would have to consider whether they wished to make an application for me to disqualify myself upon the ground of bias or apprehension of bias. The following exchange took place during that hearing. HIS HONOUR: You can apply for me to disqualify myself if you believe either I am biased, or alternatively you believe there is a reasonable apprehension that I am biased and that is, a person might objectively think that because of circumstances I ought not to hear the matter. You can make the application and then it is my duty to consider the application.
MR PLENTY: I am awear (sic) - I guess it is a bit of which one comes first, the chicken or the egg first. In the situation of whether the matter that was before the Full Court is put to one side - is it resolved or isn't it? If it isn't then I suppose there is a problem in your ability - I don't think it would be fair for you to be there under the circumstances.
HIS HONOUR: I don't follow. It was the case that I announced - when I first was assigned to this - and Judge Anderson announced that I had appeared on behalf of the Seventh Day Adventist Church on the application before Justice Bollen and I mentioned it when it first was listed and I gave you an opportunity to object to it (sic). You didn't and I didn't see any problem with my properly determining the matter. Now, you have raised it as a reason why I might not hear it."
31. Later I advised Mr and Mrs Plenty that it was a matter for them as to whether or not they wished to apply to have me disqualify myself. I said that it appeared to me that their submission suggested that I should disqualify myself for two reasons, first because I had appeared in the proceedings before Justice Bollen, and secondly because of apparently something I had said during argument. I directed that if the plaintiffs wished to make an application for me to disqualify myself they make the application within fourteen days of that date. I further reserved the plaintiff's applications to strike out the defendants defence and judgment for immediate relief until the disposal of any such application.
32. Such an application was made within the time prescribed and was supported by an affidavit sworn jointly by Mr and Mrs Plenty.
33. In that affidavit the plaintiffs deposed: "4. On the 22 January, 1996 Lander J inferred that we have welshed, and/or have been untruthful on an undertaking given to him to "properly determine" this action; and we quote from page 58 of the Transcript of that date as follows:-
HIS HONOUR: I don't follow. It was the case that I announced - when I first was assigned to this - and Judge Anderson announced that I had appeared on behalf of the Seventh Day Adventist Church on the application before Justice Bollen I mentioned it when it first was listed and I gave you an opportunity to object to it. You didn't and I didn't see a problem with my properly determining the matter. Now, you have raised it as a reason why I might not hear it.
5. We categorically deny that we have welshed on any undertaking, and/or have been untruthful; we also deny Lander J's statement quoted above; with the exception that either in March, or May, of 1995 we were informed by Judge Anderson, whilst attending chambers for the actions known as the "Wallmans" matters, that Lander J had been assigned to adjudicate on the "Wallmans" matters and that we should consider whether or not we wanted to object to his so doing, as he had appeared on behalf of the Seventh Day Adventist Church of Port Pirie matter before Bollen J, in the 1986 appeal against us, to which at that point, we accepted, however, no mention was made to us at that point as to Lander J being assigned to any of our other actions, including this action.
We have no recollection of Lander J putting this proposition to us, or to the defendant to this action, or for that matter to any other party to the other actions under his present control, and further, as far as we can see, the transcripts are silent on the matter.
Lander J, did not ever consult the defendant to this action during our presence as to whether or not they had any objections in this regard."
34. The affidavit contains the clear enough assertion that my earlier statement that I had previously raised this matter on the first occasion on which the matter was listed was untrue. The affidavit also asserts that whilst Judge Anderson raised the matter of my hearing the 'Wallmans' matter no one, but particularly Judge Anderson or myself, had raised the possibility that I would hear the trial of this action.
35. Those assertions seem to be, on the face of it, inconsistent with the written submission previously referred to where the plaintiffs said they "agreed to Judge Lander being the trial Judge in this matter ..." They could not have agreed to my being the trial Judge in this matter unless someone had raised that matter with them. I suppose it is possible that they were then referring to someone other than Judge Anderson or myself raising the matter with them, which led to them agreeing to my being the trial Judge, but that is unlikely.
36. I must say that I believe the statement in the submission to be inconsistent with the assertions to which I have referred in the affidavit.
37. It cannot be said that that submission was overlooked by the plaintiffs because they deposed in their affidavit that: "We have stated what we see is the position in our Written Outline of Submissions For The 20th January, 1997, and that document should be read in conjunction with this application and affidavit."
38. The plaintiffs then claim that they are shocked and traumatised by the unfair and untenable position in which they have been placed and claim that they are "victims, and/or, the scapegoats of Lander J and the defendant: by the defendant not being consulted in regard to whether or not Lander J should be assigned to this action... and by the moving of the perimeters from what was obviously Lander J's original understanding of the Full Court Judgment of Plenty v Seventh Day Adventist Church of Port Pirie."
39. The plaintiffs then depose in their affidavit that: "On August the 1st, 1996, Lander J, gave us an undertaking to be fair, and 'to get us off the litigation treadmill.'
40. That is so. On 1 August 1996 I attempted to make clear to the plaintiffs both of those matters. On that day I raised one other matter which they have not deposed to, which in the circumstances is far more important than the matters raised. I will return to that.
41. They deposed further: "Therefore, we are now compelled to stand up and make these personalised disqualification grounds, when that was not what we had wanted to do, as in our written submission for the 20 January 1997 we deliberately 'left the door wide open' for Lander J to take up the matter with Mr Muecke on the 22 January 1997, and simply qualify where the matter should go, without any 'fuss', because we have said that the justiciable question should go back to the Full Court for clarification and finality; which would have left Lander J's position possibly reviewable."
42. Mr and Mrs Plenty in their affidavit then depose in paragraphs 10 and 11: 1. However, instead, we are left in this outrageously, uncertain position of where we are being obstructed and persecuted to where all of our natural justice, and procedural points of law, could become "mute", or merely "academic": because neither Mr. Muecke or Lander J, are certain where the Full Court has left the matter, but if their present uncertain interpretation of the issue is correct, then as Lander J has already stated on the 18th December, 1996, and we quote from page 34 of the Transcript of that date, with emphasis being ours :-
HIS HONOUR: Para.1(a) is a proposition. I haven't read the decision of the Full Court again recently, but does the Full Court suggest that there has to be an examination of the facts to see whether or not there is any claim, because, if that is right, that is an answer to the application by itself?
MR MUECKE: I think it sort of does. Matheson J says this at p.139 of 43 SASR at 121: 'Then our application for Summary Judgement etc., will be out of the Court; and not only will we be still on the "litigation treadmill", but we are now in the "grip" of an impasse, and being "bogged" down in our ability to prosecute this action, contrary to the Supreme Court Act, especially section 27; because Lander J, and the defendant, are making the Full Court Judgement into an insurmountable obstacle to us, at this stage, when it is sitting there as the silent, authoritive (sic), "yardstick" of the justiciable matter; but the Full Court, as the authors of that judgement, are not being asked to be involved as we have suggested.
11. As this action goes to the heart of the issues of natural justice, to which at least one of our questions of law to be answered is in regard to, "no man can judge his own cause", we must ask the question, where does it leave us, when the Judge who is to judge that question, Lander J, has now placed himself into that same position ?"
43. They then depose in paragraph 13: "13. Lander J., also knew or ought to have known, that the raising of the question of the justiciableness of the action by the defendant, would place him, at least, in a questionable position, alone, on that matter, as this was the very question he had been paid by he (sic) defendant to attack us over in 1986. Further, in himself raising the question of damages being assessed under a different criteria than under section 31 of the Supreme Court Act, (when the damages question is not even involved in the application for Summary Judgement etc.), gives us a further reason to be at least, apprehensive about whether Lander J., is bias (sic) in this matter in favour of his original stance in 1986."
44. The affidavit complains about a failure to disqualify myself on my own motion and for putting the plaintiffs in the position that they had to make this application.
45. They depose further: "17. Further, we strenuously believe that if we do not make this application under the circumstances that Lander J has placed us in, then we would be granting him with a carte blanche, and/or, trustee, and/or, a power of attorney like position over our rights to disagree with his rulings etc.
18. In the knowledge of these circumstances, we object to Lander J., remaining in control of this matter, especially when, at least, our credibility has already been sharply brought into question of this interlocutory stage, and when Lander J, as the Trial Judge will be standing on the same footing as a jury in relation to our credibility, and/or, findings of fact at trial, and also, clearly, it could never have been in our proper, and/or, reasonable, and/or, foreseeable perception, that we would ever be involved in the re-raising of a matter that has been settled by the Full Court in 1986, when there is an abusive process by it ever being pleaded by the defendant, and in view of the circumstances, we have, at the very least, a reasonable apprehension that Lander J, could be bias (sic) in this matter, and we therefore strenuously ask, in our own interests, the public interest, and justice, that Lander J disqualify himself from any further hearing of this action."
46. On 14 February the plaintiffs swore a further affidavit in which they deposed: "Since swearing our affidavit on the 4th February 1997, in regard to paragraph five of that affidavit, it has come to our attention, and our memory has been recalled by reading of the transcript of August 1st, 1996, whilst we were before Lander J, in regard to our appeal from Anderson J's Reasons for granting our former solicitors Mellor Olsson, a declaration that they had ceased to act for us; Lander J spoke to us on that date in regard to his hearing this matter; when we agreed, and he also agreed to his hearing of the matter, therefore, this point also comes under the exception of paragraph 5, as to when this matter was brought to our attention prior to the matter being first listed before all the parties on October 2nd, 1996."
47. Whilst that statement is not altogether clear, the fact of the matter is that on August 1, 1996 when this matter first came before me in circumstances, where there was an argument between Mr and Mrs Plenty on the one hand and their former solicitors on the other hand the transcript discloses that I said: "HIS HONOUR: You're Mr Plenty, of course?
MR PLENTY: Yes.
HIS HONOUR: And Mrs Plenty?
MR PLENTY: Yes.
MR MELLOR: I appear for Mellor Olsson, the firm which applied for an order under rule 11, before Judge Anderson.
HIS HONOUR: Mr and Mrs Plenty, can I just mention two things before you start?
The first is you might remember that I appeared for the Seventh-Day Adventist Church in an application before Bollen J. It was in this Court, actually, in opposition to, or at the time, seeking an order striking opposition to, or at the time, seeking an order striking out the state of your claim (sic) which was successful, but became unsuccessful on appeal.
MR PLENTY: Yes.
HIS HONOUR: I should declare to you I'm the same person who is appearing.
MR PLENTY: Yes, I'm aware of that.
HIS HONOUR: I think Judge Anderson told you that.
The second matter I should bring to your attention is I noticed in the papers you make some complaint about the Legal Practitioners Complaints Committee, and the Legal Practitioners Tribunal, I think to a lesser extent.
Can I tell you this: I used to be Chairman of the Legal Practitioners Complaints Committee. I can't remember the years, I think it was about 1986 or so, to about 1991, 1992.
I was also a member of the Legal Practitioners Disciplinary Tribunal.
MR PLENTY: Yes.
MR PLENTY: Yes.
HIS HONOUR: I just tell you that in case it affects what you want to do.
MR PLENTY: I think we can count on your impartiality in the matter.
HIS HONOUR: You can have that. I guarantee impartiality.
I can't remember, just to take the last mentioned matter up further, ever seeing a complaint from you about any solicitor.
MR PLENTY: No.
HIS HONOUR: It may have been in the time I wasn't chairman, that's all."
48. As that later affidavit of Mr and Mrs Plenty shows I did disclose, contrary to the assertions they made in their earlier affidavit, that I previously had acted as counsel for the Church in relation to the matter before Bollen J.
49. Not only did I disclose that matter but the same fact was disclosed to them by Judge Anderson on an earlier occasion. That appears clear from what I said. I made reference to the earlier statement of Judge Anderson. Neither plaintiff claimed, at that time, that Judge Anderson had not told them what I assumed he had in that statement.
50. Ms Huxtable of Messrs Clelands, solicitors for the defendant, says in her affidavit in relation to Judge Anderson's statement: "I recall that at a Chamber Hearing on 2 June 1995 Anderson J raised the fact that Lander J had been allocated to hear the Plentys action against Wallmans, and that he was most likely to be allocated as the trial Judge in this action. I recall Anderson J inquiring of Jennifer Goodale for the plaintiffs and myself whether there was any objection to this. I indicated to Anderson J that the defendant had no objection to this.
I do not recall whether the plaintiffs were present on that occasion, however Miss Goodale indicated that there was no objection by the plaintiffs."
51. Ms Huxtable's affidavit drew a further application from the plaintiffs applying to strike out as "scandalous, embarrassing, and or, an abuse of the process, and or, inadmissible" the sentence which said that Miss Goodale indicated that there was no objection. I will return to that.
52. The plaintiffs acknowledged in their second affidavit that I had told them on the first occasion when this matter was listed of my previous involvement. They had no objection to my hearing the matter then before me. That was an appeal from Judge Anderson in relation to a dispute between the plaintiffs and their solicitor. Thereafter there were a number of appearances before me in relation to this matter generally. Specifically the plaintiffs had no objection to me hearing their application to strike out the defence and for judgement before the matter was argued. It was only after argument they objected to me hearing the matter. The plaintiffs learnt nothing more of my previous involvement in this matter after 13 June 1996.
53. In support of the application to strike out part of Ms Huxtable's affidavit a further affidavit was filed claiming that the statement was hearsay and only capable of being admissible if the statement had been made in the presence of Mr and Mrs Plenty.
54. It was put this way: "Also, because our reputation of not being welshers etc., on an undertaking is crucial upon what was said on that date behind our backs, to which we have no knowledge of whatsoever; any evidence from Miss Goodale regarding what she said on that date, could not be used as evidence to the truth of her statement against us, because we are embarrassed as to what was, or wasn't said in our absence..."
55. Mr and Mrs Plenty also claim in that affidavit that Miss Goodale had no authority to make any such commitment nor were they aware of such commitment until reading Ms Huxtable's affidavit.
56. Moreover they claim that they were not aware until 13 June 1996 that I would be appointed to be trial Judge in relation to all of the matters in the Court but understood until that time that I had only been appointed as a trial Judge in relation to the Wallmans matters. They deposed in paragraph 3.4(7): "[7] The fact is, it was not until the 13th June, 1996, upon which date inter alia, we received from Anderson J., his Judgement in regard to our former solicitors, Mellor Olsson's application to cease to act, and upon us informing Anderson J., that we were likely to appeal against his Judgement, that Anderson J., informed us that as Lander J., had been appointed to be the Trial Judge over all of our actions in the Court, (that Mellor Olsson's had the conduct of), he was going to direct that any appeals that we make would be directed to Lander J., and that he would take over from that point.
Up until this date, we were completely of the belief that Lander J., had only been appointed as the Trial Judge to the Wallmans matters, and we were totally unaware that Lander J., had also been appointed as the Trial Judge to our other actions, including this one.
From that date, 13th June, 1996 up until we received Ms Huxtables' affidavit sworn 20th February, 1997, we were mystified as to how Lander J had been appointed to all of our actions."
57. Whilst that statement makes the point that the plaintiffs were unaware prior to 13 June 1996 that I was to be the trial Judge, it must follow that thereafter they were aware that I "had been appointed to be Trial Judge over all of our actions in the Court...". That is consistent with their reaction to my statement on 1 August 1996.
58. They say in the absence of there being any record Miss Goodale could not have indicated to the court that which Ms Huxtable asserted.
59. In relation to those comments made on 1 August 1996, they claim in their affidavit: "3.6. On August 1st, 1996, when we, in the obscurity of the facts, said to Lander J, via Mr. Plenty, that, "I think we can count on your impartiality in the matter", which was a statement :-
(a) said in reservation; and (b) in the right to expect impartiality as a judicial duty, and (c) said in the understanding we had at that point of time, with having no basis to say otherwise, or to be unco-operative with the Court.
However, in the knowledge of what has been revealed to us since that date, we wouldn't be able to say the same today; because since then we have been made the victims of, and/or, the "scapegoats" of, and/or, have been "set-up", :-
[1] by things going on behind our backs, and not knowing about it for 20 months after, when everyone else has been carrying on in the knowledge of those things, and
[2] further, by the mistakes of others, namely by the defendant, and Lander J, for which, we are the only ones being made accountable to by Lander J., and for welshing on an undertaking that was made under, at the very least, a misconception, and/or, misrepresentation of the true facts of what had been going on behind our backs, through no fault of our own; and by what has gone on since that date.
Under these circumstances, for us to be held to such a statement, is harsh, oppressive, unconscionable, and unjust.
The "irony" of this situation, is in the fact that this is the very core of the substance of what this whole action is all about; a denial of natural justice by the defendant doing things behind our backs."
No attempt has been made to explain the mistakes of others or indeed what are said to be my mistakes."
60. The affidavit then deals with other matters. The plaintiffs question whether Ms Huxtable's statement is fabricated. That is, of course, insulting to Ms Huxtable. It is even more insulting where the plaintiffs have made no attempt to check with their former solicitor as to whether she said what Ms Huxtable claims she said. They claim that Miss Goodale may have been irresponsible and negligent. They also complain about Judge Anderson not giving the parties an opportunity to consult with their clients before the solicitors responded to his question on 2 June 1995.
61. The affidavit then raises a series of questions most of which are directed to my involvement. In particular they ask this question: "[9] Why didn't Lander J., show some diplomacy, and/or, judiciousness, and/or, just comonsense, on January 22, 1997, and endeavour to resolve the issue before it got this far, with all of these "skeletons" coming out of the "woodwork", especially when we had left the door open for resolvement in our written submission of 20th January, 1997, or for Lander J's own withdrawal, instead of forcing us into this confrontation which we never asked for nor wanted ?"
62. Thereafter there are a number of questions raised, most of which are directed to my involvement, and most of which are in a similar style to the question set out above.
63. The plaintiffs also complain, vehemently, about Ms Huxtable's affidavit, and in particular her pointing out that I had, on 1 August 1996, disclosed to Mr and Mrs Plenty that I was counsel in the matter before Justice Bollen. They complain that by including those paragraphs "Ms Huxtable is falsely, and scandalously endeavouring to scandalize us as welshers and liars, and/or, for some unknown reason, wanting our "blood" by the inference of these two paragraphs". I am not sure why they are upset about that matter. Ms Huxtable's affidavit merely corrects the incorrect statement made in the plaintiff's first affidavit and sets out in full, presumably to avoid any further misunderstandings, exactly what I did say on 1 August 1996. True it is that the plaintiffs corrected, in their second affidavit, their claim that I had previously said nothing, but that correction did not disentitle Ms Huxtable from exhibiting the transcript of 1 August 1996. The criticism of Ms Huxtable by the plaintiffs is entirely unwarranted.
64. In further amplification of their submission that I should disqualify myself for what I said at the hearing of the application to strike out the defence and for judgment they say this: "6. As to paragraph 5, we say that in opposing our application for Lander J, to disqualify himself for any comments he may have made regarding the question of damages"; is understating the situation to the extent that: -
6.1 from our point of view, it was not merely a comment idly made that we were in any way able to ignore, it was a statement clearly and deliberately made and directed to us by a Judge, Lander J, to which, the issue is still there, and/or, potentially there in all of its' "mischief" as we have previously stated inter alia, and in substance in our submission 20th January 1997 goes to the heart of the question of the justiciableness of the action by Lander J's elevating of the facts, above the law of procedure as opposed to the "sui generis" situation of no "trial de nova", turning all of the Domestic Tribunal principles around, which we are asked to think about, and then given time to put in a further submission, which gave us no option but to meet the statement; and
6.2 further, the record shows that Lander J did make the statement there is no may (sic) about it."
65. The plaintiff deponents then claim that they have suffered mental cruelty and persecution in relation to this and other litigation which has been caused by, as I understand the affidavit, the brotherhood existing between Judges and Solicitors as officers of the Court, and generally by the legal system which allows "the overbearingly, oppressive, prejudicial, fearful, distrustful, and compelled position that this "medieval, archaic and tyrannical practice" of one man being judgmental over another person's credibility."
66. Mr and Mrs Plenty have made a number of allegations in relation to the conduct of Judge Anderson, their own solicitor Miss Goodale, the defendant's solicitor Ms Huxtable, and my conduct.
67. They have in their affidavits claimed that they have been caused significant stress and anxiety by reason of all that has occurred since 1 August 1996 in relation to this matter.
68. Their affidavits are voluminous and are largely repetitive. A reading of the affidavits might suggest that they are deliberately provocative and insulting, but I will not read them that way, because if I was to be provoked and insulted then of course it might be necessary that I disqualify myself and that would allow the plaintiffs, by reason of their own conduct, to achieve the result which they seek, namely to have me disqualify myself.
69. I shall attempt to distil what is said to be the circumstances which give rise to the claim that I ought to disqualify myself.
70. I appeared on behalf of the defendant in an application to Bollen J asking that the plaintiffs' statement of claim be struck out on the ground that it disclosed no reasonable cause of action and seeking judgment for the defendant. The application came on before His Honour on December 16, 1985 and 3 February 1986, and His Honour gave his reasons on 10 April 1986. On that application I argued, on behalf of the defendant, that the statement of claim filed by Mr and Mrs Plenty disclosed no cause of action, because there was no relationship between the plaintiffs and the defendant which could give rise to a justiciable issue and I argued that the Court was bound by the decision in Cameron v Hogan (1934) 51 CLR 358. That argument was advanced upon the Statement Of Claim then on file. It succeeded and His Honour ordered that the Statement Of Claim be struck out and judgment entered for the defendant: Plenty v Seventh Day Adventist Church of Port Pirie (1986) 40 SASR 443.
71. Although I did not appear for the respondent, the matter went to the Full Court: Plenty v Seventh Day Adventist Church of Port Pirie (1986) 43 SASR
121. The Full Court determined that it was inappropriate, at least at the interlocutory stage, to strike out the proceedings; Jacobs J because it was premature to decide property rights at that point; Matheson J because the plaintiffs might succeed in a claim for a proprietary interest, a consensual compact or injury to reputation; and Olsson J upon the basis that a claim for loss of property rights might be made out.
72. The reasons of both Matheson J and Olsson J indicate that they believed the Statement Of Claim would need to be amended to raise some of those matters. The Statement Of Claim now before the Court is in substantially more detail and seeks different relief to that which was before Bollen J. Whenever the case is heard it must be decided upon the pleadings then in place and upon the evidence which has been adduced on both sides and in accordance with principle.
73. It was disclosed to the plaintiffs by Judge Anderson on 2 June 1995 that I was to manage all of the litigation in which Mr and Mrs Plenty were parties, and it was disclosed to their then solicitor that I had appeared in this matter in the circumstances which I have related. That disclosure was made because, when I was approached to manage litigation, I asked the Master to immediately make that disclosure. I accept the evidence of Ms Huxtable that Miss Goodale said that which she claimed was said. That is quite consistent with everything else that has transpired and indeed consistent with Mr and Mrs Plenty's own reaction when I disclosed the same matter to them. It follows that I decline to strike out the sentence in the affidavit of Ms Huxtable. Ms Huxtable's affidavit recounts a statement made by the plaintiffs' agent before a judicial officer.
74. I disclosed to Mr and Mrs Plenty on 1 August 1996 my previous involvement in this matter and I am satisfied they understood at that time that the disclosure was because it was intended that I would manage this litigation. Their reaction to what I said is consistent with their own affidavit where they claim that they were told on 13 June 1996 that I would manage this litigation.
75. It is clear, as the transcript shows, they had no objection to my hearing the matter then before me, which I did, and any other interlocutory application or the trial.
76. The question of whether I should or should not disqualify myself comes to be determined in those circumstances where I had limited involvement in proceedings which have now changed and in circumstances where the parties have hitherto had no objection to my hearing this matter.
77. There is one further matter. The point which was argued before Bollen J and which I raised with Mr Muecke on 18 December 1996 is no longer a live issue. Ms Huxtable has deposed that the defendant no longer maintains that the plaintiffs' claim is not justiciable.
78. Ms Huxtable deposes in that affidavit: "4. In order to avoid any further delays in the resolution of this long standing matter, I have been instructed to abandon the argument of justiciability of the plaintiffs' claim."
79. The other matters which are said to give rise to the requirement that I disqualify myself arise out of what I said arguendo in the hearing of 18 December 1996.
80. It is difficult to understand what it is that I am supposed to have said which would require me to disqualify myself, but I think it is that I have suggested that it may be necessary, on one aspect of damages, to determine whether or not the plaintiffs would have suffered dis-fellowship in any event.
81. The point I was putting to Mr and Mrs Plenty, arguendo, was that the defendant will no doubt argue that even if it has been guilty of a breach of natural justice the plaintiffs have suffered no damage, because if the Church had observed the requirements of natural justice, the Church would have been entitled to reach the conclusion that Mr and Mrs Plenty ought to have suffered dis-fellowship and therefore they would have suffered the same damage which they have suffered in any event.
82. I must say I find it very difficult to understand what is said to be the matter giving rise to any possibility of apprehension of bias on my part. The proposition I put was simply a proposition of law which will be considered on the evidence adduced at the trial. There can be nothing in what I have said that could give rise to any suggestion of actual bias on my part.
83. I think the matter therefore resolves itself as to whether or not I ought to disqualify myself having previously acted for one of the parties the subject of this litigation.
84. It is the fact that if Mr and Mrs Plenty had at any time objected prior to or on 1 August 1996 to my hearing this matter I would have desisted immediately. That is because I would have considered it inappropriate to require them to submit to my hearing the matter in circumstances where I had acted for the opposing party. Indeed that was the reason for my asking the Master to make the disclosure he did and for me making the statement I did.
85. The question is, now that objection is taken should I disqualify myself for having acted for the defendant in the circumstances which I have mentioned or whether there are any facts and circumstances which have occurred since that date which make it necessary that I cease to hear any aspects of this matter.
86. It would be inappropriate for me to sit if either I was biased, or because of circumstances the parties or the public might have a reasonable apprehension that I might not be able to bring an impartial and unprejudiced mind to the matter to be determined.
87. There was no suggestion, I think, that I am biased, but the plaintiffs assert that both they, and the public would entertain a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the resolution of the question involved.
88. If I believed there was any real possibility that my continuing to hear the interlocutory matter, which I was hearing when this application was made, or there was any real possibility that my hearing the trial might lead to a reasonable apprehension of any pre-judgment on my part then of course I must cease sitting.
89. However, as the High Court said in Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 294: "On the other hand, it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment bias, regardless of whether the other party desired that the matter be dealt with him as the judge to whom of the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court."
90. In Re J.R.L.; Ex Parte C.J.L. (1986) 161 CLR 342 Mason J said at 352: "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."
91. The fact that a judge has previously been a legal adviser to a party before that judge does not necessarily require the judge to disqualify himself or herself in relation to any proceedings. If however the matters before the judge raise for that judge's consideration the correctness or appropriateness of advice given on a previous occasion by that judge it would be usually appropriate that the judge should not sit.
92. It is the case that if the judge's previous advice generally, or his or her advice specifically, in any litigation falls for a consideration in later proceedings in which that judge is called upon to adjudicate then there would usually be reasonable grounds for apprehending that that judge might not be able to bring an impartial and unprejudiced mind to the issue in question. See Re Polites; Ex Parte The Hoyts Corporation Pty Ltd (1991) 173 CLR 78 at 85 et seq.
93. In Polites case, Mr Deputy President Polites had previously been a solicitor who had tendered certain advice to Hoyts in relation to industrial matters. When sitting as a member of the Full Bench of the Commission his presence was objected to upon the ground that a fair minded observer might reasonably perceive that he could not determine the issues on the material before the Commission in the proceedings. He acceded to the submission and declined to sit, but Hoyts sought an order mandamus from the High Court requiring him to sit and determine the matter in issue. That application was successful and the High Court determined that in the circumstances the prior involvement of a Deputy President of the Commission with associations who were frequently parties to proceedings cannot be sufficient by itself to amount to a disqualification from sitting in a particular case.
94. The High Court said this at 87/88: "A prior relationship of legal adviser and client does not generally disqualify the former adviser, on becoming a member of a tribunal (or of a court, for that matter), from sitting in proceedings before that tribunal (or court) to which the former client is a party. Of course, if the correctness or appropriateness of advice given to the client is a live issue for determination by the tribunal (or court), the erstwhile legal adviser should not sit. A fortiori, if the advice has gone beyond an exposition of the law and advised the adoption of a course of conduct to advance the client's interests, the erstwhile legal adviser should not sit in a proceeding in which it is necessary to decide whether the course of conduct taken by the client was legally effective or was wise, reasonable or appropriate. If the erstwhile legal adviser were to sit in a proceeding in which the quality of his or her advice is in issue, there would be reasonable grounds for apprehending that he or she might not bring an impartial and unprejudiced mind to the resolution of the issue. Much depends on the nature of his or her relationship with the client, the ambit of the advice given and the issues falling for determination."
95. The circumstances of this case in one sense are the same but in another sense different.
96. In this matter I had a closer involvement in the sense that I appeared in the very action I am called upon to adjudicate. On the other hand whatever advice I gave and whatever arguments I raised will never be a matter which should be called into question in this matter. That is because, as I have mentioned, the argument I presented to Bollen J was based upon the Statement Of Claim then extant, which is in a different form to the present Statement Of Claim. Moreover the issue which was raised by way of a preliminary issue before Bollen J has now been conceded by the defendant. In that sense neither my advice nor the argument presented will ever be the subject of any consideration either by way of interlocutory application or in the trial.
97. As I have already said, if objection had been taken to my hearing this matter on or before 1 August 1996 then I would not have proceeded to sit.
98. However a number of matters have occurred since then which cannot be overlooked in determining whether or not it would now be appropriate to disqualify myself. First the plaintiffs indicated, in my opinion, on 1 August 1996, that they waived any right that they had to have me disqualify myself and were content for me to proceed and hear the interlocutory matter then before me and rule upon it. I did that and there was no objection taken.
99. They brought an application to me to strike out the defence and for judgment for immediate relief and in that respect they selected me, to decide the matter.
100. No objection whatsoever was taken in relation to my participation as Judge in the matter until such time as I said those matters to which apparently the plaintiffs have, wrongly in my opinion, taken offence.
101. I do not think that it is permissible for one party to blow hot and cold, and to keep up its sleeve, as it were, the right to require a judge to disqualify himself or herself when it appears to that party that it would be tactically advantageous to do so. See Metcalf v Permanent Building Society
(1994) 13 WAR 349.
102. I believe that this application for me to disqualify myself is not driven by my previous participation as Counsel for the defendant. It cannot be so because the defendant no longer takes any issue in relation to the justiciability of these proceedings. That was the only matter upon which I was ever involved. In those circumstances it cannot be that my previous involvement which had been disclosed to the plaintiffs is any longer a matter of concern to them.
103. I believe this application has been driven by a perception on the part of the plaintiffs that I have a view in relation to damages which is both contrary to the law and contrary to their interests.
104. The plaintiffs must understand that anything I have said in argument, either to themselves or to Mr Muecke, has been said in that respect only, that is in argument. I have not, contrary to the plaintiffs affidavit, reached any conclusion whatsoever on any matters to be agitated between the parties. I have not, as it happens, even reached a conclusion in relation to the specific interlocutory application which I was hearing at the time that I was asked to disqualify myself. That is so because, on receipt of the written submission of Mr and Mrs Plenty in January 1997, I believed it appropriate to cease to consider that application.
105. I said what I said in argument first to Mr Muecke to determine whether he still maintained that the issue of justiciability was still alive and he said that he did and I said no more. Secondly I raised with him the question of damages because he was asserting that he was entitled to resist a striking out of his defence and summary judgment upon the basis that the issue of damages was still a live issue.
106. I put the argument in relation to damages to Mr and Mrs Plenty in an effort to bring to their attention the possibility that it would be argued by the defendant that even if they were to obtain the declaration to which they claim to be entitled they still may not be entitled to damages because they would have suffered disfellowship in any event.
107. It was not meant to be, and could not be understood as being, any authoritative statement of the law but simply an argument that they would have to face. It was not meant to be and could not be understood to be any statement as to where the onus of proof lies in relation to the question of damages. That will be a matter for consideration in due course. It was put to Mr and Mrs Plenty in an effort to aid them in an understanding of their own case. They have taken it otherwise and wrongly so.
108. In Re Shaw; Ex parte Shaw (1981) 55 ALJR 12 at 14 Gibbs ACJ said: "In that case it was pointed out, at p.264, that it is not uncommon, and sometimes necessary, for a judge, during argument, to formulate propositions for the purpose of enabling their correctness to be tested, and that "as a general rule anything that a judge says in the course of argument will be merely tentative and exploratory". However, in some cases the words or conduct of the judge may be such as to lead the parties reasonably to think that the judge has prejudged an important question in the case, and then prohibition may issue. Of course, the court which is asked to grant prohibition will not lightly conclude that the judge may reasonably be suspected of bias in this sense; it must be "firmly established" that such a suspicion may reasonably be engenedered (sic) in the minds of the parties or the public, as was made clear by the Court in Reg. V, Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969), 122 C.L.R. 546, at pp. 553-554, in the passage cited in Reg. V. Watson; Ex parte Armstrong, at p. 262."
109. In Re J.R.L.; Ex parte C.J.L. (supra) Wilson J said at 359/360: "It has been recognized that in a case such as the present, where there is no allegation of actual bias, the test of reasonable suspicion may be a difficult one to apply involving questions of degree and particular circumstances which may strike different minds in different ways: Re Shaw; Ex parte Shaw; Livesey. A court of review must be careful not to exaggerate the significance of actions or statements made by a judge in the course of a proceeding. There must be "strong grounds" (Reg v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd) for inferring the existence of a reasonable suspicion."
110. In my opinion, the exchanges to which I have referred could not lead a party or the public to a reasonable apprehension of bias.
111. I believe this application is driven for reasons apart from my previous involvement. I would not be prepared to disqualify myself for any reason apart from my previous involvement in this matter. Moreover, I am not prepared to disqualify myself for that reason because in my opinion the plaintiffs have waived any entitlement they might have had to ask me to disqualify myself in relation to that previous involvement.
112. Where a party has been fully informed of any circumstances that might give rise to an application for a judge to desist hearing a matter on the grounds of an apprehension of bias, but not taken advantage of that information by making that application, in those circumstances it could be said that they have waived their rights to have the judge disqualify himself or herself upon the grounds of any apprehension of bias: Vakauta v Kelly
(1989) 87 ALR 633. Of course if I was biased then I would have a duty to disqualify myself but that is not the case.
113. I have reached the conclusion therefore that I ought not to disqualify myself from the hearing of these interlocutory matters and the trial of this matter upon the grounds raised by the plaintiffs.
114. The submissions which have been put and the affidavits which have been filed contain much strident criticism of myself. As I have already said some of that criticism could be read as being gratuitously insulting. The application made by the plaintiffs has necessarily required me to examine those submissions and affidavits for the purpose of understanding the plaintiffs state of knowledge at any given time. I have reached conclusions which I have expressed throughout these reasons on those matters.
115. It might be said that because the plaintiffs have been so stridently critical of myself that I could no longer bring an impartial or unprejudiced mind to the proceedings.
116. That is not in fact the case, but as well I think that argument must be resisted, because otherwise a party would be entitled to obtain the relief which that party sought, namely the disqualification of the judicial officer, by tailoring and colouring the application to that judge. It would be inappropriate to allow the very extravagance of the application to be the reason for allowing the application. That would only be to encourage procedural unfairness and to allow for procedural abuse. I therefore will not disqualify myself by reason of the criticism that has been made by these plaintiffs.
117. In those circumstances it appears to me that it would be inappropriate for me to disqualify myself and indeed in the circumstances of this case would be an abdication of my judicial responsibility.
118. These proceedings have now been going for fifteen years. They involve a consideration of facts which occurred more than seventeen years ago. It is in the interests of everyone that these matters are disposed of expeditiously. The defendant is anxious to have the matter disposed of as soon as possible. Indeed the defendant has been abandoning points in an endeavour to cut through the interlocutory matters so that this matter may be disposed of as soon as possible. It would be unfair to the defendant to abdicate my judicial responsibility unless I was satisfied that there was a real apprehension of bias on my part. For the reasons I have already concluded I do not believe that the plaintiff has made that out.
119. In my opinion the application ought to be dismissed.
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