Registrar of the Supreme Court of South Australia v Moore-McQuillan

[2007] SASC 292

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

REGISTRAR OF THE SUPREME COURT OF SOUTH AUSTRALIA v MOORE-MCQUILLAN

[2007] SASC 292

Reasons for Ruling of The Honourable Justice Nyland

8 August 2007

PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - REASONABLE SUSPICION OF BIAS

Application for disqualification of judge on grounds of bias - judge member of court considering case stated from WorkCover Tribunal concerning application - further proceedings in which judge dismissed appeal relating to refusal of WorkCover to disclose documents pursuant to Freedom of Information Act 1991 - claim as to exempted documents upheld - whether judge biased as a result of inspection of documents nine years earlier to determine whether correctly categorised as exempt - no findings as to credit of applicant. Held - application refused.

Workers' Rehabilitation and Compensation Act 1986 s 86A; Freedom of Information Act 1991 Schedule 1, Cl 4(1)(c), s 43(2), referred to.
Moore-McQuillan v WorkCover Corporation [2003] SASC 73; WorkCover v Moore-McQuillan [1988] SASC S6570; Rann v SA Water and Baker (No 2) (1996) 187 LSJS 438; Johnson v Johnson (2000) 101 CLR 488; Gabrielsen v Nurses Board of South Australia [2006] SASC 199, discussed.

REGISTRAR OF THE SUPREME COURT OF SOUTH AUSTRALIA v MOORE-MCQUILLAN
[2007] SASC 292

NYLAND J:

1. Mr Moore-McQuillan has asked that I disqualify myself from further hearing and determining the contempt proceedings against him, as he fears that I am biased on account of having previously heard and determined other proceedings in which he has been involved.  There are two such cases.

2. In Moore-McQuillan v WorkCover Corporation[1], I was a member of the Full Court (with Perry and Bleby JJ), which considered a case stated by the full bench of the Workers’ Compensation Tribunal, pursuant to s 86A of the Workers’ Rehabilitation and Compensation Act 1986.  The question was concerned with the power of the tribunal to enforce an order for payment of money.  This arose out of a dispute filed some time in 1997 by Mr Moore-McQuillan, in which he asserted that he had been underpaid an amount of up to $10,000.  Perry J and I agreed with the ex tempore reasons delivered by Bleby J in answering the case stated.  This matter was, however, only concerned with a question of law, and Mr Moore-McQuillan does not argue that there is any reasonable ground to apprehend bias as a result of my participation in that decision. 

   [1] [2003] SASC 73

3. Mr Moore-McQuillan’s complaint arises out of the case of WorkCover v Moore-McQuillan[2] (unreported judgment delivered on 5 March 1998).  In this case, Mr Moore-McQuillan sought leave to appeal to the Full Court from a decision of a District Court judge.  The judge had dismissed an appeal against a determination by WorkCover with respect to an application for disclosure of certain documents pursuant to the Freedom of Information Act 1991 (the Act).  The application was refused on the grounds that the documents were exempt documents within the meaning of clause 4(1)(c) of Schedule 1 of the Act.  The District Court judge upheld WorkCover’s decision, following which an appeal was lodged which was heard by me sitting as a single judge hearing miscellaneous appeals.

   [2]    [1998] SASC S6570

4. The matter was complicated procedurally.  At the commencement of the hearing a submission was made that the appeal was a nullity or incompetent, as Mr Moore-McQuillan was not the applicant/appellant with respect to the relevant court proceedings, although the documents sought to be inspected related to him.  A point was also taken as to the failure to make the application for leave within the time prescribed by the rules.  In order to resolve the matter expeditiously, I dealt with the matter on the basis that Mr Moore-McQuillan had the locus to be heard and I extended time within which the application for leave could be lodged. 

5. Mr Moore-McQuillan’s complaint essentially related to the procedure adopted by the District Court judge pursuant to s 43(2) of the Act which permitted the judge to receive argument in the absence of the public, and more significantly, Mr Moore-McQuillan.

6. In my reasons for decision, I referred to the decision of Rann v SA Water and Baker (No 2)[3], in which Chief Judge Brebner had said at 439:

   It will be noted that there is no discretion in subsection (2) in so far as the exclusion of the public and the appellant are concerned.  The subsection is mandatory in its direction that, once application is made by the Minister or the agency concerned, the Court must proceed to take evidence and hear submissions in the absence of the public and the appellant.  The position with respect to the appellant’s representative is more difficult.  It requires the Court to form an opinion as to whether it is necessary to proceed in the absence of the appellant’s representative in order to prevent the disclosure of any exempt matter.  If the opinion is formed that it is necessary to exclude the appellant’s representative to prevent the disclosure of exempt matter, the court is left with no discretion to exercise.  The hearing must proceed in the absence of the appellant’s representative.

   [3] (1996) 187 LSJS 438

7. In reliance on that decision, I held that the District Court judge had correctly proceeded to consider the evidence relating to these matters in the absence of Mr Moore-McQuillan and/or his advisers.  I further indicated that it was necessary for the relevant documents to continue to remain undisclosed to Mr Moore-McQuillan, notwithstanding the obvious difficulties to him in presenting his argument on appeal.  In order to finalise the matter, however, and subsequent to the reservation of my decision, I inspected those documents, following which I indicated in my reasons that I considered that none of the exempted documents was relevant to the reasons given by Mr Moore-McQuillan as to his need to inspect them, and therefore the procedure adopted by the District Court judge in making his finding had been correct.  I therefore held that the appeal was not reasonably arguable and there were no matters raised which justified the matter being considered by the Full Court.  The application for leave was therefore refused. 

8. In his affidavit in support of the application for disqualification, Mr Moore-McQuillan described the WorkCover documents as having been obtained through a massive surveillance of him and said that it included material obtained in an “illegal, unfair and biased manner”.  Mr Moore-McQuillan accepted that my decision of law in this case had been correct, as was my viewing of the material to ensure that the ruling of the District Court judge was correct as to his classification of the documents as exempt.  Mr Moore-McQuillan also acknowledged the procedural irregularities which arose on the hearing of the appeal, but said:

   Notwithstanding these considerations by her Honour and the fairness she showed me, I still have a reasonable apprehension of bias because of my experience with Work Cover and its methods of dealing with me and the fact she saw material WorkCover created in its surveillance of me.

9. The test to be applied with respect to the disqualification for bias has been considered in a number of cases.  In Livesey v New South Wales Bar Association[4], the High Court said (at 293):

   It was common ground between the parties to the present appeal that the principle to be applied in a case such as the present is that laid down in the majority judgment in Reg. v. Watson; Ex parte Armstrong (1976) 136 CLR 248, at pp. 258-263. That principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.

   Further (at 300):

   It is, however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact.

   And at 299:

   The reasonable observer is to be presumed to approach the matter on the basis that ordinarily a judge will so act as to ensure both the appearance and the substance of fairness and impartiality. But the reasonable observer is not presumed to reject the possibility of prejudgment or bias; nor is the reasonable observer presumed to have any personal knowledge of the character or ability of the members of the relevant court.

   [4] (1983) 151 CLR 288

10. In Johnson v Johnson[5], the High Court described the hypothetical reasonable observer in the following way (at [12-13]):

    The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is ‘a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial’

    Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time.

    [5] (2000) 201 CLR 488

11. In Gabrielsen v Nurses Board of South Australia[6], Duggan J held that a board member who had participated in a decision that a nurse was guilty of unprofessional conduct was not for that reason alone precluded from deciding a subsequent application by the nurse for reinstatement, although he upheld the objection in that case on what he described as the unusual circumstances of it, that is, that the members of the disciplinary board had earlier expressed a firm opinion on what should be the outcome of an application which had not yet been made, but which they anticipated would be made in the near future.

    [6] [2006] SASC 199

12. In this case, I have never made any ruling or comment adverse to the credibility of Mr Moore-McQuillan, nor any other aspect of his conduct, and he has not suggested otherwise.  His concern is limited to my inspection of the exempted documents.  Mr Moore-McQuillan suggested that the exempted material included videos obtained by way of surveillance.  I do not recall ever having viewed any video of any kind relating to Mr Moore-McQuillan.  As far as the documents are concerned, I no longer have any knowledge of what they were or any of the contents thereof.  The only purpose for which I looked at those documents was to determine whether they had been properly categorised by the District Court judge and WorkCover as exempt documents.  The inspection of those documents took place between the hearing of the appeal on 12 January 1998 and the delivery of my judgment on 5 March 1998, that is, some nine years ago.  In my opinion, any issues to which those documents related could not affect the discrete issue for determination in this case.  In my opinion, the fair minded lay observer could not, for the reasons advanced by Mr Moore-McQuillan, reasonably apprehend that I would not bring an impartial mind to the issues to be decided in this case.  I therefore decline to disqualify myself on the grounds of bias.