Plenty v ATTORNEY-GENERAL of South Australia - [2012] SASC 218

Supreme Court of South Australia
(Civil: Application)
PLENTY & ANOR v ATTORNEY-GENERAL OF SOUTH AUSTRALIA
[2012] SASC 218
Judgment of The Honourable Justice Vanstone (ex tempore)
4 December 2012
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - ORDINARY RULE
Request for judge to disqualify herself from hearing application for summary judgment and dismissal of plaintiffs' claim on account of perceived bias granted.
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, applied.
Webb v The Queen (1994) 282 CLR 41; Plenty & Anor v Seventh Day Adventist Church of Port Pirie [2009] SASC 10, considered.

PLENTY & ANOR v ATTORNEY-GENERAL OF SOUTH AUSTRALIA
[2012] SASC 218
Civil

VANSTONE J (ex tempore): There are two applications before me. The first is an application by the plaintiffs for me to disqualify myself from hearing this matter. The second is an application by the defendant for summary judgment in the form of dismissal of the plaintiffs’ claim.
I address the first application. The plaintiffs ask me to disqualify myself from hearing the second application by reason of perceived bias. The issue was first raised in the plaintiffs’ letter to the Registrar of 21 September 2012 in which the plaintiffs referred to the Full Court decision of Plenty and Anor v Seventh Day Adventist Church of Port Pirie [2009] SASC 10 and asserted that those judges making up the coram in that matter (of which I was one) had “made serious judgments of the most wounding to our characters and reputation”. It was further contended that the plaintiffs’ character and reputation was a substantial issue in the current action.
In Webb v The Queen (1994) 181 CLR 41, the High Court considered the principles regarding discharge of a juror on the basis of perceived bias. Mason CJ and McHugh J summarised the relevant test as follows at 53:
… the test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases, the jury is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially.
This formulation was agreed to by the other members of the court. (See page 57 per Brennan J, page 71 per Deane J, pages 87-88 per Toohey J.)
The gravamen of this test has been held to apply beyond the criminal court. Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 concerned appeals against two decisions by judges refusing to disqualify themselves on account of relevant pecuniary interests. In the first case, the judge held a beneficial interest in shares in the ANZ Bank. The ANZ Bank was not a party to the proceedings but had a financial interest in the outcome. The second case involved the ANZ Bank as a party to the proceedings and the judge held shares in the bank personally.
Gleeson CJ and McHugh, Gummow and Hayne JJ formulated the test for apprehended bias as follows at [6]:
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver … a judge is disqualified and for 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. That principle gives effect to the requirement that justice should both be done and be seen to be done, the requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
Gaudron and Callinan JJ agreed with this formulation.
In Plenty v Seventh Day Adventist Church of Port Pirie, the Full Court heard an appeal from Duggan J, who had refused a number of claims for damages made by the plaintiffs as a consequence of their “disfellowshipping” from the Port Pirie Seventh Day Adventist Church. It was not the role of the Full Court to make any findings regarding the plaintiffs’ credit but, rather, to determine whether Duggan J had erred in the conduct of the trial or in his reasons for dismissal of the plaintiffs’ claim.
Gray J wrote the reasons for the decision to dismiss the appeal and Anderson J and I subscribed to those reasons. I wrote brief reasons going to a particular ground of appeal concerning the admissibility and use of a letter written by the plaintiffs to the Deputy Commissioner of Taxation. The plaintiffs were cross-examined at trial on the letter by counsel for the defendant and the letter was tendered. Counsel’s cross-examination revealed matters relating to the plaintiffs’ credibility and objectivity. Duggan J had made reference to the letter when noting that the plaintiffs had “lost objectivity in a number of instances”. I expressed the view that the letter had been properly admitted and properly used by Duggan J. My reasons included the following, at [117]:
The letter was admitted and, in my view, correctly so. The judge made no remark as to any limitation on use of the exhibit. I consider it was relevant, not only to the other battles which Mr and Mrs Plenty were waging on various fronts over an extended period of time, but also to their credibility, their perception of events, and to their habit of imputing malice to others. Contrary to the assertion in the ground of appeal, it was not sought to be used to demonstrate the truthfulness of the assertions made by Mr and Mrs Plenty within it but, rather, to demonstrate an attitude of mind which pervaded their dealings with numerous public office holders.
As I have observed, the plaintiffs request that I disqualify myself on the basis that I formed part of the coram which dismissed their appeal. There is no particular reliance on the short additional reasons I wrote.
I do not think that I would have disqualified myself purely on the basis of my joining in the decision and agreeing with the reasons of Gray J. However, I accept that my observations about the contents of the letter and the potential use of the letter could cause a fair-minded observer to apprehend that I might not bring an impartial mind to bear on the plaintiffs’ application.
In what I then said, I was discussing the possible evidentiary uses of the letter and refuting the criticisms of the decisions of Duggan J to admit the letter. I was not expressing a view of my own as to what the letter actually demonstrated about the character of its authors. Nonetheless, I accept that the language I used and the way I dealt with this issue might suggest to the reasonable observer that I found the letter to be telling in a number of respects and in a way adverse to the plaintiffs’ credibility.
Accordingly, I shall disqualify myself from further hearing this matter and I shall return the file to the registrar for allocation to another judge.