Roads Corporation v Love
[2010] VSC 153
•22 April 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST
No. 6693 of 2004
BETWEEN
| ROADS CORPORATION | Applicant |
| v | |
| THOMAS JAMES LOVE | Respondent |
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JUDGE: | CAVANOUGH J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 14, 16 April 2010 | |
DATE OF ORDER: | 16 April 2010 | |
DATE OF PUBLICATION OF REASONS: | 22 April 2010 | |
CASE MAY BE CITED AS: | Roads Corporation v Love | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 153 | |
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Courts and judges – Apprehension of bias principle – Compulsory land acquisition case fixed for trial – Expert planning evidence of central importance – Nominated trial judge having 9 years earlier personally engaged expert planning witness now relied upon as one party’s sole expert planning witness – Judge recuses himself.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Delany SC Mr D Batt (on 14 April 2010) | Garland Hawthorn Brahe |
| Mr S Goubran (on 16 April 2010) | ||
| For the Respondent | Mr Love in person | Not applicable |
HIS HONOUR:
On Friday 16 April 2010 I decided that I should recuse myself as the trial judge for this proceeding, and made orders vacating the ten week trial period scheduled to commence on Monday 19 April 2010 accordingly. These are my reasons for that decision.
This proceeding was begun in 2004 by way of a referral by the Roads Corporation under s 80 of the Land Acquisition and Compensation Act 1986 of a disputed claim for compensation made by the respondent, Mr Love, with respect to the compulsory acquisition of part of his land in Epping in connection with plans for the building of a freeway. The proceeding has a long and tortuous interlocutory history.[1] I became the nominated trial judge in late December 2009.
[1]See my ruling of 16 December 2009: Roads Corporation v Love [2009] VSC 628, especially at [6]-[7].
Mr Love’s solicitors withdrew from this proceeding, by leave, on 29 January 2010 and he has not had solicitors or counsel acting for him on the record in the proceeding since that time.
On 7 April 2010 the Roads Corporation’s solicitors sent an email to my Associate (with a copy to Mr Love) as follows:
“It has come to our attention that one of the witnesses upon whose evidence our client proposes to rely at the trial of this proceeding, Mr Robert Milner, may have previously appeared as a witness on behalf of a group of residents, including his Honour Justice Cavanough, in 2000.
We understand that Mr Milner appeared at VCAT on behalf of a group of 16 residents who were objecting to an application to demolish an existing house and to develop land for two dwellings.
We enclose for your information a copy of an email which we forwarded to Mr Love on Thursday 1 April 2010 advising him of this information.”
The email to Mr Love of 1 April 2010 of which a copy was attached to the solicitor’s email to my associate read as follows (omitting formal parts):
“As you will be aware, from the Court Book in the proceeding and also from previous correspondence, one of the witnesses upon whose evidence our client proposes to rely at the trial of this proceeding is Mr Milner. Mr Milner is a town planner and the evidence which he gives is expert evidence.
Mr Milner has recently been informed that the trial judge of this proceeding will be Justice Cavanough, Mr Milner informed us last evening that, in 2000, he was involved in appearing at VCAT on behalf of a group of 16 residents who were objecting to an application to demolish an existing house and to develop land for 2 dwellings. That group of residents, we understand, included his Honour. As the matter is 10 years old, Mr Milner no longer has the file, which has been destroyed due to age.
We do not consider that these matters which occurred 10 years ago in any way impact upon his Honour’s ability to hear the matter and certainly our client raises no objection to his Honour so doing. Nevertheless, these matters have been drawn to our attention by Mr Milner, we considered it appropriate to inform you of them and to also inform the Court.”
Late on Friday afternoon 9 April 2010 Mr Love filed his submission/template draft judgment (of 17 pages) in response to the submission/template draft judgment (of 267 pages) that had earlier been served by the Roads Corporation pursuant to the Court’s directions.
On 13 April 2010 I caused my Acting Associate to write to the parties as follows:
“Dear parties
Last week one of Roads Corporation’s legal representatives contacted Justice Cavanough’s Associate, Carly Robertson, seeking, apparently, to check whether or not Roads Corporation’s proposed planning witness, Mr Rob Milner, had in the past been engaged professionally by Justice Cavanough.
His Honour has asked me, in the absence today of Ms Robertson, to inform both parties that [in] 2000-2001 (prior to his appointment to the Bench) his Honour did personally engage Mr Milner, through the firm Coomes Consulting, as a town planning witness/advocate in relation to two separate disputes relating to dual occupancy residential building proposals on sites adjacent to his Honour’s home. His Honour was an objector in both cases.
His Honour had been introduced to Mr Milner by another resident in the same street who had engaged Mr Milner in relation to a similar dispute.
Both of the disputes in which his Honour engaged Mr Milner went to hearing and determination in VCAT.
In one case Mr Milner acted as both advocate and witness. His Honour and Mrs Cavanough were the principal objectors and paid the bulk of Mr Milner’s fees. The objectors were substantially unsuccessful: see [reference supplied].
In the other case there were four sets of householders, including the Cavanoughs [ , ] who were the principal objectors although some additional objectors also joined in. Initially Coomes Consulting (Mr Milner) was engaged as advocate and witness. Later the objectors instructed solicitors who then in turn engaged junior and senior counsel. Mr Milner became an expert witness only. The Cavanoughs and the other three sets of objectors shared equally the bulk of the costs, with minor contributions by other objectors. The Cavanoughs coordinated the instructions. Fees paid to Coomes Consulting exceeded $6,000. The objectors succeeded in defending the [named] Council’s refusal of the permit that had been sought by the developer: see [reference supplied].
Later in 2001 the developers put forward a modified proposal which the objectors, including principally the Cavanoughs, referred to Mr Milner for comment. Mr Milner advised that in substance the modified proposal should be accepted. The objectors accepted this advice and a permit was granted accordingly.
During 2004 the Cavanoughs contacted Coomes Consulting seeking information in relation to the conditions of the permit following what they believed to be a departure by the developers from those conditions. Little or no information was available. On this occasion there may not have been any direct contact with Mr Milner personally.
His Honour discloses these matters in case either party may wish to make an application that his Honour should disqualify himself from hearing the trial in this proceeding or to make any other application.
The proceeding is listed for directions at 4.30 tomorrow 14 April 2010 so as to provide an opportunity for the parties to be heard on the matters raised above and to consider generally the question whether the trial should proceed on Monday 19 April 2010 as presently scheduled. His Honour notes that there have been developments since the last hearing, including the filing of an application for leave to appeal from his Honour’s decision of 23 June 2009 and the filing of Mr Love’s response to the Roads Corporation’s draft judgment.”
The parties attended at Court at 4.30 pm on Wednesday 14 April 2010 as scheduled. Relying on the matters disclosed in the letter from my Acting Associate of 13 April 2010, Mr Love immediately objected to my continuing as the nominated trial judge. He submitted that the planning evidence was central to the case. He said that there were two central areas of dispute, namely planning issues and geological issues.[2] He submitted that at the relevant time I had clearly trusted Mr Milner’s advice.[3] He submitted that Mr Milner’s evidence was a central piece of evidence and that “there has been a clear relationship focused on that sort of evidence”.[4] Being unrepresented, he was apparently not in a position at that stage to elaborate on his objection by reference to legal principles or authorities.
[2]Transcript, p 1.
[3]Transcript, p 2.
[4]Transcript, p 3.
The Roads Corporation submitted that I should not stand down. On its behalf, Mr Delany SC who appeared with Mr Batt spoke to written submissions which (correcting certain references) read as follows:
“The Legal Principles
1.The applicable principles are well known. In Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd,[5] the High Court recently repeated the following well known statement of principles in Ebner v Official Trustee:[6]
[5]{2006) 229 CLR 577 at [110].
[6](2000) 205 CLR 337 at [6], [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge … 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. That principle gives effect to the requirement that justice should both be done and be seen to be done, a 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. …
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge … 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.
Judges should not be too willing to accede to applications that they refrain from sitting. Colourable applications for disqualification might be used as a means of ‘Judge shopping’. The High Court in Livesey v New South Wales Bar Association[7] cautioned against Courts being too willing to accede to applications for disqualification:
[7](1983) 151 CLR 288 at 294.
… 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 or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court.
In Re JRL; ex part CJL,[8] Mason J was alive to this prospect of ‘Judge shopping’:
[8](1986) 161 CLR 342.
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.
Similar sentiments were expressed by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee:[9]
[9](2000) 205 CLR 337 at 348.
[19]Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. 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.
[20]This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
Disqualification by association
Amongst the four main categories of apprehended bias identified by Deane J in Webb v R,[10] the following category appears to be applicable: disqualification by association which consists of cases where ‘the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings’.[11]
In Trustees of the Christian Brothers v Cardone,[12] Wilcox J observed that there is no general rule that a Judge is disqualified from hearing a case in which a witness known to him or her will be called. On the other hand, except perhaps in an emergency situation, it is clearly undesirable for a Judge to hear a case in which a person well known to him or her is to give important and controversial evidence, especially if the witness’s credit may be in issue. It might be difficult for the Judge to bring an open mind to the evaluation of that person’s evidence. The question whether a particular Judge should hear a case, having regard to the Judge’s knowledge of the potential witness, is a matter to be evaluated in the light of the whole of the circumstances. The attitude of the parties is a matter of significance.[13]
In Fried v National Australia Bank Ltd[14] Weinberg J considered an application by two of the respondents that he disqualify himself from further hearing the case on the grounds of apprehended bias in that the applicants proposed to call as a witness the Judge’s own accountant. It was contended the credit of the accountant, Mr Rado, would be in issue.[15] After giving the matter anxious consideration the Judge was satisfied that the hypothetical reasonable and fair minded but ‘informed’ observer might well entertain an apprehension that, in dealing with the evidence of the accountant, the Judge might not bring to the task of assessing that evidence an impartial and unprejudiced mind.[16]
A similar problem confronted Merkel J in Temwell Pty Ltd v DKGR Holdings Pty Ltd.[17] The respondent proposed to suggest that the applicant’s solicitor, Isaac Apel, was concerned in an abuse of process by the applicant. Mr Apel was a joint executor and trustee with the Judge of the Judge’s late mother’s estate. Hotly disputed issues of fact were involved and questions concerning integrity or credit may arise. Merkel J accepted the submissions of counsel for the respondent that he disqualify himself.
Where association is the basis for consideration of ostensible bias, the duration, intensity and nature of the association and how much time has passed since its existence are relevant considerations.[18]
For example:
(a)McCreed v R,[19] 11.5 years earlier, the trial Judge in a sexual assault case had prosecuted the accused for murder – not a basis for disqualification;[20]
(b)Metcalf v Permanent Building Society (in liq),[21] Ipp J was criticised because he excused himself from hearing an application for joinder of his former firm, Parker and Parker, on the basis of alleged negligence. The Judge was a member of the firm between 1981 and 1984, the events occurred post 1990, the application was heard in 1994 – 10 years later.[22]
[10](1994) 181 CLR 41. See also Ebner (2000) 205 CLR 337 at 348-9.
[11](1994) 181 CLR 41 at 74.
[12](1995) 57 FCR 327.
[13](1995) 57 FCR 327 at 336.
[14][2000] FCA 787.
[15]See at [48].
[16]See at [35], [38], [40], [48], [51], [60] to [63].
[17][2004] FCA 345.
[18]S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 per Kirby P (as his Honour then was) at 369.
[19][2003] WASCA 275.
[20]See per Steytler J at [4], [8], [13], [14], [16] to [19], per Miller J at [35] to [37], [41] to [45].
[21]Unreported, Western Australian Supreme Court, 20 June 1994.
[22]See per Malcolm CJ at pages 5, 7, 8, 10 and per Nicholson J and Anderson J at page 10.
A distinction may be drawn between, on the one hand, cases where a judge may have a preconceived view of the credit or trustworthiness of non-expert witness and, on the other hand, those where a judge may have preconceived views of the expertise or reliability of an expert witness. Common sense requires that a different approach be taken in these two cases. See Vakauta v Kelly[23] as referred to by Weinberg J in Fried at [51].
[23](1989) 167 CLR 567 at 570 to 571 per Brennan, Deane and Gaudron JJ.
No basis for disqualification
In the present case:
(a)the association was a professional one, of a very limited nature;
(b)the association ended 9 years ago;
(c)the witness is an expert witness with an over-riding duty to the Court. Unlike Fried and Temwell, the evidence of the witness does not involve contested issues of fact or credit.
There is no proper basis for disqualification and any decision to disqualify would be justly criticised on the same basis as articulated by Malcolm CJ and the other Judges in Metcalf.”
After about two hours of discussion and argument, the further hearing of the matter was adjourned until 10.30 am on Friday 16 April 2010. On that occasion the parties maintained their opposing positions. Mr Love handed up a written submission which he had prepared with the benefit of some legal assistance. The Roads Corporation relied on an affidavit sworn on 15 April 2010 by its solicitor, Mr Lane; and its counsel referred to some additional authorities.[24] This further hearing also occupied about two hours. I reserved my decision. I announced it at 4.15 that afternoon.
[24]In particular, he cited further passages from Ebner, supra; and he referred to Locabail (UK) Ltd v Bayfield Properties [2000] 1 All ER 65, especially at 78; Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43 and O’Ceallaigh v An Bord Altranais [2009] 1 EHC 470 (a decision of the High Court of Ireland).
Consideration and determination
The applicable legal principles are not in dispute. I accept that they are correctly stated in Roads Corporation’s written submissions. In particular, I accept that the application of the apprehension of bias principle requires the two steps stipulated in Ebner. On the other hand, the test in Australia remains the double “might” test set out in Ebner and repeated in Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd. And, in that regard, as was observed in Ebner,[25] the Australian test is expressed somewhat differently from the test applicable in England. The High Court made that point in Ebner in the course of referring to the judgment of the English Court of Appeal in Locabail (UK) Ltd v Bayfield Properties Ltd[26], which was one of the additional cases relied upon by Mr Delany SC on the second day of the hearing. In Australia, the question is one of possibility, not probability, notwithstanding that (as Mr Delany emphasised) the possibility must be “real and not remote”.[27] Moreover, as Mr Delany acknowledged,[28] Locabail indicates that a judge should recuse himself or herself even before any objection is raised “if, for solid reasons the judge feels personally embarrassed in hearing the case”.[29] Further, in Locabail it was also said that “if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal”.[30] That view is consistent with the language of the High Court in paragraph [20] of Ebner set out above.
[25]At [9].
[26][2000] 1 All ER 65; [2000] QB 451.
[27]Ebner [2000] 205 CLAR 337 at 345 [7].
[28]Transcript, 127-128.
[29][2000] 1 All ER 65 at 76; [2000] QB 451 at 478.
[30][2000] 1 All ER 65 at 78; [2000] QB 451 at 480.
I turn to the particular circumstances of the present case.
I accept Mr Love’s submission that Mr Milner’s proposed evidence is central. Indeed, it might well turn out to be critical.
Mr Love’s claim is for over $40 million plus interest (of over $30 million and rising). He maintains that, in the absence of the freeway proposal, a basalt quarry would have been established on a relevant part of his land and that it would have been fully operational and producing 700,000 tonnes of high quality basalt annually by the date of the acquisition, namely 11 February 2002. Indeed he asserts that, but for the freeway proposal, such a quarry would have been up and running by March 1999 and would have had a long prospective life, together with potential for the prospective void to be used for a solid inert waste land fill. Mr Love attributes some $5 million of value to the prospects for a land fill alone. The evidence of the valuer, Mr Herdman, on whom Mr Love relies is based on a discounted cash flow approach rather than on comparable sales data. His application of that approach, in turn, is heavily dependent on assumptions about the prospects for the proposed quarry as at particular times in the past.
Certain uncontroversial matters relevant to Mr Love’s claim are set out in my judgment of 23 June 2009 in the related proceeding brought by Mr Love to challenge the validity of the acquisition of the land.[31] In connection with a process which began in 1996, Mr Love lodged an application with the Whittlesea Council in October 1997 for a permit to quarry the relevant land. In July 1998 the then Acting Minister for Planning exercised his power under s 97B of the Planning and Environment Act 1987 to “call in” the application for a quarry permit. In the same month the Minister established a panel to consider the application. It reported to the Minister in October 1998. However the Minister decided that the report should not be published until after a report from a committee that was considering alternative routes for the proposed freeway was received. That report was published on 1 November 1999. Shortly thereafter the quarry permit panel’s report was published. It recommended that the application should be approved, but subject to certain important limitations and conditions. On 25 November 1999, following a change of government at State level, a new Minister for Planning refused the application for the quarry permit in its entirety. On 4 December 2000 Mr Love asked the Minister to reconsider that refusal. On 19 December 2000 Mr Love sent a draft work plan for the proposed basalt quarry to the Department of Natural Resources and Energy. On 2 January 2001 the Minister advised Mr Love that he was not willing to reconsider his refusal of the quarry permit.
[31][2009] VSC 215, esp at [66], [75]-[77], [90], [129]-[130].
Notwithstanding the Minister’s actual decisions in 1999 and 2001, the Roads Corporation has made a concession for the purposes of this proceeding concerning the prospects of the grant of a quarry permit. The extent of the concession is in dispute, but, as I understand it, the Roads Corporation acknowledges, at least, that, in the absence of the proposal for the freeway, a potential purchaser of Mr Love’s land as at the date of the acquisition (11 February 2002) would reasonably have anticipated that a permit for a basalt quarry on the relevant part of the land would have issued in due course, but only in substantial accordance with and subject to the limitations and conditions of the recommendation of the quarry permit panel. At least on Mr Love’s view of the issues in this case, a quarry subject to those limitations and conditions would have had significantly less value than a quarry that was subject only to the lesser limitations and conditions that, according to Mr Love, a purchaser would have anticipated. The Roads Corporation denies that, as at the date of acquisition, any prospective purchaser could reasonably have expected to escape limitations and conditions of the kind recommended by the Panel. Further, contrary to another of Mr Love’s contentions, the Roads Corporation denies that, as at the date of acquisition, any prospective purchaser would have believed that a further, extended permit might be granted at a later stage. Finally, the Roads Corporation submits that, as at the date of acquisition, because of planning considerations, no prospective purchaser would have anticipated ever obtaining a permit for the use of the prospective void for a solid inert waste land fill.
Pursuant to previous interlocutory orders, substantially all of the parties’ evidence-in-chief has by now been reduced to writing and filed and served. Mr Milner is the one and only planning witness upon whom the Roads Corporation relies. His evidence conflicts in numerous respects with the evidence of Mr Love’s two planning experts, Mr Kraan and Mr Borelli. As Mr Love points out in his submission of 16 April 2010, in the submission/template draft judgment prepared by Roads Corporation Mr Milner’s opinions are cited in at least paragraphs 74, 79, 211, 492, 497, 499-509 inclusive, 515, 517 to 520 inclusive, 533, 591 to 597 inclusive, 602, 692 and 708.
The Roads Corporation asserts that Mr Love’s case with respect to the value of the land is misconceived. It submits that, as a matter of law, it is not possible to “rewrite history” so as to posit the existence of an operating quarry as at the date of the acquisition, as Mr Love seeks to do. However, the Roads Corporation is not prepared to nail its colours to that mast only. Far from it. The Roads Corporation is by no means prepared to abandon reliance on Mr Milner’s evidence. Indeed, Mr Delany expressly acknowledged before me that, as part of the determination of the claim, it was “likely” that the Court would “need to consider planning evidence, where opinions differ”, and that “on the one side, there will be opinions expressed by Mr Milner and there will be contrary opinions expressed by others”.[32] Earlier,[33] Mr Delany had accepted that Mr Milner was “an important witness” in relation to the ($5 million) land fill claim in particular. Correspondingly, at paragraph 211 of its submission/template draft judgment, the Roads Corporation had described the question of community need for a land fill as a “critical issue in the present case”; and it had proceeded to say that Mr Milner had analysed that question and had concluded that there was no need. In another recent proceeding between the present parties (“the Cooper Street proceeding”), a comparable opinion of Mr Milner adduced in evidence on behalf of the Roads Corporation was accepted by Osborn J in preference to expert evidence to the contrary adduced on behalf of Mr Love.[34]
[32]Transcript, p 96. See also at 103.
[33]Transcript, p 93.
[34]Roads Corporation v Love [2010] VSC 32 at [198]-[199], [200], [277]-[279].
It is true that Mr Milner is to be called as an expert witness to express expert opinions, rather than as a lay witness to facts or events in issue between the parties.[35] It is true also that he is bound by the code of conduct applicable to expert witnesses. However, those matters are not conclusive against the possible application of the apprehension of bias principle.[36] In Vakauta v Kelly[37] it was said that “there is an ill-defined line beyond which the expression by a trial judge of preconceived views about the reliability of particular medical witnesses could threaten the appearance of impartial justice”. Indeed, the High Court held that the line had been crossed in that case. I acknowledge that in Vakauta v Kelly the trial judge had indicated that he held adverse preconceived views about the reliability of the relevant medical witnesses. In the present case, by contrast, the difficulty arises from conduct which might be thought to indicate that I hold positive preconceived views about the reliability of Mr Milner. However no authority has been cited to me, nor have I found any, to the effect that this is necessarily a distinction of significance.
[35]Cf Vakauta v Kelly (1989) 167 CLR 568 at 571.
[36]Compare Gascor v Elliott [1997] 1 VR 332, especially the passage from the judgment of Ormiston JA set out in my judgement in Rustom v Ismail [2009] VSC 625 at [26]; and see and compare my judgment in that case generally.
[37](1989) 167 CLR 568 at 571.
I accept that nothing has been said so far by or on behalf of Mr Love to indicate that there will be any attack on the honesty or integrity of Mr Milner. However, Roads Corporation did not submit that that was conclusive either.[38] Mr Delany SC accepted that there was potential for Mr Milner to be cross-examined about the extent of his experience in advising potential purchasers of comparable land; that questions along those lines might raise at least quasi-factual matters; that, although Mr Milner was an experienced planner, the Court would still have to choose between his opinions and those of two other equally experienced planners, Mr Borelli and Mr Kraan; and that it was unknowable at present exactly how the parties might ultimately try to persuade the trial judge to take one view or another.[39] As mentioned above, Mr Love is presently unrepresented. At my hesitant invitation, Mr Love indicated[40] that he intended to raise a number of issues with Mr Milner. He proposed to challenge Mr Milner’s interpretation of a certain planning strategy document produced by Whittlesea Council insofar as it applied to quarrying. He also intended to put to Mr Milner that he had given undue weight to the strategy document, since it had never been incorporated into the planning scheme. He proposed to ask Mr Milner questions about his knowledge of the actual conduct and actual decisions of the Council in relation to other extractive industry activities in the precinct. As to the land fill issue, Mr Love intended to challenge Mr Milner’s reliance on the terms of a certain regional waste management plan. Conceivably, other challenges might be mounted. I did not think it appropriate to press Mr Love too far in this regard, especially as he is presently unrepresented. However it seems that Mr Love may well seek to persuade the trial judge to make an adverse finding about the level of expertise or the level of care or accuracy brought to bear by Mr Milner on one or more of the many planning issues in this case.
[38]Compare Rustom v Ismail [2009] VSC 625, esp at [8], [23]-[26]; Griffiths & Beerens Pty Ltd v Proline Pty Ltd [2010] VSC 23.
[39]Transcript, p 101-102.
[40]Transcript, p 105-106, 108-111.
In deciding whether a judge should stand down, the attitude of the parties is said to be a matter of significance.[41] Here they have taken opposing stances. However the Roads Corporation has not suggested that Mr Love’s expressions of concern about my continuing as the nominated trial judge are not genuine. Nor that Mr Love is “Judge shopping”. Nor that the application has been made wholly or partly with a view to gaining a collateral benefit, such as a lengthy adjournment of the trial. On the other hand, I am of course aware that in recent months Mr Love has twice applied to me unsuccessfully for an indefinite postponement of the trial and that he continues to submit that the trial should be adjourned until (as he asserts) he can afford to be legally represented again and until his appeal to the Court of Appeal in the Cooper Street proceeding is heard and determined. It is unfortunate that the present question fell to be considered so close to the scheduled commencement of the trial which had itself been fixed and refixed several times previously. However the fact that the question of my position had been raised between the parties (following a reference to it apparently made by Mr Milner himself) was not advised to the Court until 7 April 2010; and the likely great importance of Mr Milner’s evidence only emerged fully after the filing and service late on Friday 9 April 2010 of Mr Love’s response to the Roads Corporation’s lengthy submission/template draft judgment. In any event, as I have indicated to the parties, my stepping down does not necessarily mean that the trial will be further postponed for a lengthy period.
[41]Trustees of the Christian Brothers v Cardone (1995) 57 FCR 327 at 336.
Roads Corporation has rightly submitted that where association is the basis for consideration of apprehension of bias, the duration, intensity and nature of the association and how much time has passed since its existence are relevant considerations.[42]
[42]Citing S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 per Kirby P at 369.
It is true that quite a long time has passed since I have had any contact with Mr Milner, namely some 9 years (putting aside the attempt to contact him in 2004). However, the duration, nature and intensity of the association point the other way. My wife and I were quite frequently in touch with Mr Milner over a period of at least 15 months (from, according to our records, no later than 3 April 2000 to no earlier than 29 June 2001). Indeed, I believe that we had first met him somewhat earlier in connection with a local planning dispute. I was coordinating both of the principally relevant VCAT proceedings on the objectors’ side. In addition to general neighbourhood concerns about the implications of the proposals, we ourselves were very concerned about the likely impacts on the amenity of our home as a result of the proposed developments on the two blocks immediately adjacent to our home, especially the proposed development at the rear of our home. Our immediate neighbours were also very concerned from their own personal points of view. Unsurprisingly, Mr Milner came to our house more than once to take instructions from us and from our neighbours and to view the sites in question. I believe we supplied cups of tea to those present, including Mr Milner. We engaged Mr Milner twice to prepare expert reports and to appear at VCAT for us. My recollection is that neither our neighbours nor ourselves had any concerns about the quality of his work. My wife and I had sufficient confidence in him to engage him yet again to advise us in respect of the modified proposal for the site at the rear and to accept his advice on that matter. Mr Milner’s firm was paid over $6,000 for work done in relation to one of the disputes (the major one) alone. I have never engaged any other planning expert personally. I note that Mr Milner himself has not entirely forgotten these matters, even though his file no longer exists. His recollection of the details of the disputes may not be completely accurate, but he himself was apparently concerned enough to raise the matter with the Roads Corporation’s representatives.
The affidavit of the solicitor for the Roads Corporation, Mr Lane, shows that Mr Milner is frequently engaged as an expert witness in compensation, planning and valuation cases that come before this Court. He has provided reports and given evidence both for and against the Roads Corporation, and continues to do so. I am currently the Judge-in-Charge of the Valuation, Compensation and Planning List. Mr Lane deposes that from his own experience and based on discussions with his partner, Mr Brahe:
“… it is almost always the case that town planning evidence will be involved, at least, if not be a central issue in such cases. If the prior association between Justice Cavanough and Mr Milner is a matter which requires his Honour’s disqualification in the present proceeding, then it is a matter which will also require his Honour’s disqualification in all such matters where Mr Milner is a witness, save only for the possible exception of the unusual case where the planning evidence is not contested.”
As at present advised, I think that Mr Lane’s expressions of concern are overstated. This case has special features. It has an extraordinary history. It is expected to occupy an extraordinarily long trial period. Mr Milner’s evidence in this case is, as I have held, central and may well be critical. That will not always be so. If I were to sit and an appellate court were later to hold that I should not have done so, the inconvenience and the wasted time, effort and money would be enormous. Mr Love is unrepresented.[43] He has objected. By contrast, in this List almost all parties are legally represented. In the normal run of cases it is less likely that any objection to my sitting based on Mr Milner’s involvement would be made or would be upheld. Further, as time goes by, the period since my personal involvement with Mr Milner will only increase. In any event, if I consider myself disqualified from sitting in this case or if I am in real doubt about it, I ought not sit, regardless of what that may mean in relation to my current position as Judge-in-Charge of the List.
[43]By way of analogy, with respect to the application of the principles relating to waiver of the bias rule in relation to unrepresented parties, see Dr M Groves, “Waiver of the Rule Against Bias” (2009) 34(2) Mon LR 315, esp at 343-346.
Mr Delany made another, related submission. He pointed out that this is a specialist list. He submitted that an approach should not be taken to the apprehension of bias principle that would inhibit the appointment of a person with extensive and recent experience as a solicitor or counsel in the planning, compensation and valuation field to the position of Judge-in-Charge of the List. Mr Delany said that such a person would very likely have given advice to clients, frequently about the appropriate expert to choose for the purposes of a particular case, and would have had regular professional contact with many if not all of the relatively small pool of potential expert planning witnesses and potential expert valuation witnesses in Victoria.
Whether or not any such consideration is relevant in the application of the apprehension of bias principle, I see a real and important distinction between, on the one hand, prior professional recommendations to clients as to their choice of expert together with prior professional contact with experts (however frequent or extensive), and, on the other hand, a case in which the judge has been the personal client of the relevant expert, a fortiori where the engagement was repeated several times over a period in excess of a year in matters of importance to the judge.
Mr Delany told me that he and those working with him had carried out extensive searches trying to locate a prior case in which the judge had been the personal client of an expert witness. They had not been able to find any such case. In Fried v National Australia Bank Ltd,[44] which is referred to above, the Judge’s own accountant was to be called, but as a witness to the facts, not to give an expert opinion. The judge stood down. Mr Delany submitted that the need for the judge (Weinberg J) to step down in Fried was much clearer than in the present situation, and that nevertheless Weinberg J had stated that he had given the matter “anxious consideration”.[45] However his Honour’s remark needs to be read in context. The trial had been running for three weeks. His Honour was “acutely conscious of the cost, inconvenience and delay” which would result from his decision.[46] Further, although an attack on the accountant’s credit had been foreshadowed, his Honour thought that the overall importance of the accountant’s evidence had been somewhat overstated.[47] Nevertheless, his Honour was satisfied that “the only realistic course open” to him was to disqualify himself.[48] He went on to say: “The decision which I have reached is one which I believe is unavoidable”.[49]
[44][2000] FCA 787.
[45]At [60].
[46]At [64].
[47]Ibid.
[48]At [60].
[49]At [65].
Mr Delany told me that the nearest case to the present that he had been able to find anywhere in the world was the recent decision of Hedigan J of the High Court of Ireland in O’Ceillaigh v An Bord Altranais[50]. However I find that decision of little assistance to me. Among other distinguishing features, it did not relate to a court. Rather, it related to the situation of the sessional Chairperson of a statutory disciplinary committee for the nursing profession in Ireland. The committee was conducting a professional misconduct inquiry in relation to a nurse. The Chairperson’s usual occupation was Group General Manager of a particular hospital. A person called to give expert midwifery evidence in the inquiry concurrently held the position of Assistant Director of Midwifery at the same hospital. The inquiry began on 5 May 2009. On the fourth day of the inquiry counsel for the nurse made an application that the committee (in its entirety) discharge itself from proceeding with the inquiry on the ground that an apprehension of bias arose from the professional relationship between the midwifery witness and the Chairperson. The witness had worked at the hospital since 2002 but had only been appointed Assistant Director of Midwifery in April 2009. She did not report to the Group General Manager/Chairperson. There was no line management connection between them. They did not participate together in regular committee meetings at the hospital. Their professional relationship was not particularly close. They had never discussed the case together. The Chairperson had been Director of Nursing and Midwifery at the Hospital from mid-2001. She was appointed as Group General Manager in December 2008. The witness was one of a very small pool of experts in domiciliary midwifery in Ireland. The Irish law as to apprehended bias is different from the law in Australia. The Irish courts still adopt the “real likelihood of bias” formulation as expressed by Lord Denning MR in Metropolitan Properties Co (FGC) Ltd v Lannon[51]: The committee declined to stand down. Unsurprisingly, Hedigan J did not interfere with their decision. Unlike the present case, O’Ceillaigh did not involve a situation where a judge of a court had (repeatedly) been the personal client of the expert witness.
[50][2009] IEHC 470.
[51][1969] QB 577 at 599. See [2009] 1 EHC 470 at [27[.
McCreed v R[52] is an illustration of the proposition that the passage of a lengthy period since the association in question can be significant, but otherwise the case is of little assistance for present purposes. It involved a jury trial. 11½ years earlier, as a prosecutor, the trial judge had prosecuted the accused on an unrelated charge. McCreed is very different from this case.
[52][2003] WASCA 275.
I do not accept Roads Corporation’s submission that the unreported judgment of the Full Court of the Western Australian Supreme Court in Metcalf v Permanent Building Society (in liq)[53] indicates that I should not stand down in the present case. Metcalf is not particularly helpful as a precedent in this area. It was apparently decided on the same day as it was heard. The proposition that the trial judge should not have stood down was conceded on all sides. There is nothing in the judgment to indicate how many, if any, of the persons with whom the trial judge had been in partnership at Parker and Parker 10 years earlier remained at the firm. There is nothing to indicate that, in deciding to disqualify himself, the trial judge had taken the “second step” now required by Ebner, namely to articulate the logical connection between the matter relied upon and the feared deviation from the course of deciding the case on its merits.
[53]Unreported, Western Australian Supreme Court, 20 June 1994.
By contrast, in the present case, the logical connection is similar to the one identified by Weinberg J in Fried, namely that my past association with Mr Milner is such that an informed reasonable lay bystander might think it would be difficult for me to avoid being subconsciously influenced by that association into accepting his evidence as persuasive and as preferable to the conflicting evidence of Mr Borelli and Mr Kraan.[54]
[54]Cf Fried [2000] FCA 787 at [62].
The very recent decision of the New South Wales Court of Appeal in Bakarich v Commonwealth Bank of Australia,[55] to which Mr Delany referred, is readily distinguishable. It concerned the not uncommon situation of a former barrister who, as a judge, was hearing a case involving a party for whom the judge had sporadically appeared as a barrister, and which in turn was now being represented by counsel with whom (among other barristers) the judge formerly shared a floor of chambers and whom the judge knew. Some 8½ years had passed since the judge had ceased practising as a barrister. As the Court of Appeal noted, no attempt had been made to articulate the Ebner “second step”[56]. Inevitably, the application for disqualification was refused. That case is not similar to the present.
[55][2010] NSWCA 43.
[56][2010] NSWCA 43 at [28].
I am satisfied that I am disqualified from conducting the trial of this proceeding. If I am wrong about that, I consider that there must be real doubt about my ability to sit. In all the circumstances, I should not sit.
For these reasons, I decided to stand down from the hearing. It was necessary to vacate the scheduled trial period because no other judge was available to commence the trial on the next working day (Monday 19 April 2010). However, as I indicated to the parties, I proposed to refer the matter immediately to the Listing Associate Justice with a view to her entertaining as soon as possible such submissions as the parties may wish to make in relation to the refixing of the trial.
As to costs, after discussion, the parties indicated that they would be content with an order that there be no order as to the costs of the hearing and determination of the question whether I should stand down.
I made orders accordingly.
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