GLEESON CJ, GUMMOW, KIRBY, HAYNE, HEYDON AND CRENNAN JJ
LEONARDUS GERARDUS SMITS & ANOR APPELLANTS
AND
WALTER EDWARD ROACH & ORS RESPONDENTS
Smits v Roach [2006] HCA 36 20 July 2006 S398/2005
ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation
J McC Ireland QC with H Altan for the appellants (instructed by Moloney Lawyers)
T G R Parker SC with N J Owens for the respondents (instructed by Henderson Taylor Workplace Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Smits v Roach
Courts and judges – Apprehended bias – Disqualification of judge – Right to trial by independent and impartial tribunal – Familial association – Brother of judge alleged to have an indirect pecuniary interest in outcome of proceedings – Associated party given access to judge's draft reasons in advance of delivery –Non-disclosure of association until conclusion of trial – Whether apprehension of bias reasonable – Whether connection between familial association and feared deviation from impartial decision articulated.
Courts and judges – Apprehended bias – Disqualification of judge – Familial association – Brother of judge alleged to have an indirect pecuniary interest in outcome of proceedings – Failure to object promptly to judge's participation in the trial – Waiver of right to object.
Legal practitioners – Barrister and client – Relationship of agency – Imputation to litigant of knowledge possessed by counsel.
Words and phrases – "apprehended bias".
GLEESON CJ, HEYDON AND CRENNAN JJ. The appellants, who are solicitors, were retained to act for the respondents in an action for damages for professional negligence against another firm of solicitors. The appellants and the respondents fell into dispute. The appellants ceased to act for the respondents, who were subsequently represented in the professional negligence proceedings by other solicitors. The appellants sued the respondents in the Supreme Court of New South Wales, seeking to recover professional costs to which they claimed to be entitled. They failed at first instance before McClellan J[1]. An appeal to the Court of Appeal of the Supreme Court of New South Wales (Sheller, Ipp and Bryson JJA) was partly successful[2]. The issue in the further appeal of the appellants to this Court is narrower than the issues considered by the Court of Appeal. It concerns only the ninth ground of appeal to the Court of Appeal, which was that McClellan J "erred in failing to disqualify himself on 26 June 2002 from determination of the proceedings". The Court of Appeal rejected that ground on the basis that the appellants "waived their right to seek to have the judge disqualify himself".
In order to explain how the questions of disqualification and waiver arose, it is necessary to describe, in broad outline, the professional negligence proceedings, and the disputes that arose between the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Smits v Roach [2006] HCA 36
Case
[2006] HCA 36
Decision Date
CaseChat Overview and Summary
This case concerned an appeal to the High Court of Australia regarding allegations of apprehended bias against a trial judge, McClellan J. The appellant, Smits, argued that the judge should have been disqualified from hearing the proceedings due to a familial association with his brother, who allegedly had an indirect pecuniary interest in the outcome of the litigation. A further point of contention was that the judge's brother was given access to the judge's draft reasons before their delivery, and this association was not disclosed until the conclusion of the trial.
The High Court was required to determine whether the circumstances gave rise to a reasonable apprehension of bias on the part of McClellan J. This involved applying the two-step test established in *Ebner v Official Trustee in Bankruptcy*, which necessitates identifying the source of the alleged bias and then articulating a logical connection between that matter and a feared deviation from impartial decision-making. The Court also considered whether the appellant had waived his right to object by failing to raise the issue promptly.
The High Court found that the New South Wales Court of Appeal had erred in its application of the *Ebner* test. While the Court of Appeal identified the familial association as a potential source of bias, it failed to adequately articulate the logical connection between this association and any feared deviation from impartial decision-making. The High Court emphasised that a bare assertion of interest is insufficient; the nature of the interest and its connection to the possibility of departing from impartial judgment must be explained. The Court concluded that the Court of Appeal had focused on the first step of the *Ebner* test to the detriment of the second, and that the reasoning of the Court of Appeal was not compelling.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ, HEYDON AND CRENNAN JJ
GUMMOW AND HAYNE JJ
KIRBY J
(dissent)
The same observations apply where the basis of the assertion is association with somebody who is said to have an interest in the litigation. The reasons of the Court of Appeal do not articulate a logical connection between the matter complained of and the feared deviation from impartial decision making, or explain why it would have been reasonable to apprehend that McClellan J might decide the case other than on its legal and factual merits. The general principle to be applied is not in contest. In its application of the principle to the particular, and unusual, facts of the present case, the reasoning of the Court of Appeal is not compelling. If it were necessary to decide the notice of contention the argument for the respondents should succeed.Conclusion The appeal should be dismissed with costs. The first matter which calls for attention is the treatment by the New South Wales Court of Appeal of the issue of apprehended bias. That required attention to and application of what was decided by this Court in Ebner v Official Trustee in Bankruptcy[17]. In their joint judgment, Gleeson CJ, McHugh, Gummow and Hayne JJ said that the applicable principle requires two steps and continued[18]:"First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed."[17](2000) 205 CLR 337.[18](2000) 205 CLR 337 at 345 [8]. Sheller JA, with whom Ipp JA and Bryson JA agreed set out that passage. However, after referring to authorities pre‑dating Ebner, his Honour then concluded[19]:"The question was whether the fact that the trial judge had no pecuniary interest whatever in Freehills but his brother did, might give rise to a reasonable apprehension of bias. In the circumstance that so far as was known the relationship was close, a fair minded lay observer might reasonably have apprehended that the judge might not bring an impartial mind to the resolution of the case."[19]Smits v Roach (2004) 60 NSWLR 711 at 736. That treatment of the issue failed to articulate a logical connection between the matter complained of and the feared deviation by McClellan J from the course of deciding on its merits the proceeding before him. That is to say, the Court of Appeal fixed its attention upon the first of the two necessary steps required by Ebner at the expense of the second. Given the abbreviated evidence on the disqualification application made to McClellan J, the Court of Appeal was required to approach with particular caution any attempt to circumvent the cumulative requirements of Ebner, lest the shortcomings in the case presented on that application be visited upon other parties to the litigation.
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ, HEYDON AND CRENNAN JJ,
GUMMOW AND HAYNE JJ,