Tectran Corporation Pty Limited & Ors v Raybos Australia Pty Limited & Ors; Carson & Ors v Raybos Australia Pty Limited

[1991] HCATrans 126

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl34 of 1990

B e t w e e n -

TECTRAN CORPORATION PTY LIMITED

and OTHERS

Applicants

and

RAYBOS AUSTRALIA PTY LIMITED

LESZEK JOHN RAJSKI

First Respondents

B.P. JONES

Second Respondent

P.F. ESLER

Third Respondent

W.R.D. STEVENSON & ORS

Fourth Respondents

N.R. CARSON

Tectran 1 10/5/91

Fifth Respondent

R.A. STEPHENS & ORS

Sixth Respondents

Application for special leave

to appeal

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S135 of 1990

B e t w e e n -

N.R. CARSON & ORS

Applicants

and

RAYBOS AUSTRALIA PTY LIMITED

LESZEK JOHN RAJSKI

First Respondents

WILLIAM ROBERT DILL STEVENSON

& ORS

Second Respondents

Application for special leave

to appeal

DAWSON J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 MAY 1991, AT 2.48 PM

Copyright in the High Court of Australia

Tectran 2 10/5/91

MR R.J. BAINTON, OC: If the Court pleases, I appear with my

learned friend, MR M.I. BOZIC, for all of the

applicants. (instructed by Blake Dawson Waldron)

MR J. BASTEN: If the Court pleases, I appear for both the

first respondents in each of the matters.

(instructed by Johnson & Co)

MR J.V. NICHOLAS:  May it please the Court, in the first of

the applications I appear for the second, third and

fourth respondents. In the second application, I

appear for the second respondent. (instructed by

Minter Ellison)

DAWSON J:  Mr Bainton.

MR BAINTON: If Your Honours please. In 1976 in Reg v

Watson, 136 CLR 149, this Court laid down what it

saw as the test for what I might describe

generically as the sort of disqualification

argument. The passage is extremely short.	The
judgment of the then Chief Justice, and

Justices Gibbs, Stephen and Mason, said at page 262

simply this:

The view that a judge should not sit to

hear a case if in all the circumstances the

parties or the public might reasonably suspect

that he was no unprejudiced and

impartial ..... is correct in principle.

Since 1976 there have been at least 42 reported

cases in Australia trying to work that out one way

or another and no doubt there are countless

unreported cases.

In England it is quite a different position.

The Court of Appeal in England, in 1969, laid down

a test and it was done in Metropolitan Properties

Co v Lannon, (1969) 1 QB 577, and Lord Denning, at

page 599 used this expression:

if right-minded persons would think that, in

the circumstances, there was a real likelihood

of bias on his part, then he should not sit.

"He" being, of course, the judge or the judicial

officer.

Now, Your Honours, despite the vast difference

in population and litigation between the two

places, since 1969 in England there have only been
36 reported cases on this question and only 22 of
them were thought appropriate to get into either

the authorized reports - - -

Tectran 3 10/5/91

GAUDRON J:  It may say something about the people that edit

the authorized reports, Mr Bainton.

MR BAINTON: That is one view. There is another one that I

want to put to this Court. The most recent of them

was a decision just over a year ago, it is Reg v

Crown Court at Bristol, (1990) 2 All ER 193. It

was a decision of the Court of Appeal and all three

judges applied the same test and described it as having been established by a long line of cases.

And the test they all applied was a reasonable and fair-minded person - I am sorry, the view that

would be taken by "a reasonable and fair-minded

person sitting in court and knowing all the

relevant facts". That is verbatim

Lord Justice Farquharson's phrase at page 196 and
Lord Justice Taylor's phrase at page 199.

Lord Justice Bingham was a little more economical

of language. He condensed it slightly. He said,

"a reasonable and fair-minded observer, appraised

of all of the facts", presumably meaning thereby

somebody sitting in court knowing it.

Now, we would think the difference between the

volume of litigation is not likely to be

attributable to the difference in judicial quality

in the two countries. The reason for it, in our

submission, is that the courts here have put a

variety of glosses on the expression used by this

Court in Watson's case, and the decision of the

President, Mr Justice Kirby, and the decision to be

appealed from has taken those glosses to an

extraordinary limit.

DAWSON J:  Does the formulation in Livesey differ in any way

from Watson?

MR BAINTON:	Slightly in verbage but not in substance. think the passage in Your Honour's judgment in	I
Livesey is very much the same as the -

DAWSON J:  I think it was a joint judgment, was it not?

MR BAINTON:  I am sorry, it was a joint judgment. I was

thinking of Your Honour's formulation in Vakauta.

DAWSON J: Yes.

MR BAINTON:  The test that has been applied in the court

below is quite different from any formulation of it

anywhere else.	The President, at pages 72 to 73,
beginning at line 19, comes to the test.	He said:

With every respect to Badgery-Parker J, I

consider that a number of the matters of
detail which he ascribes in his reasons to the

ordinary reasonable law observer, fall into

Tectran 4 10/5/91

the same error as the knowledge attributed to

the citizen in the imaginary conversation in

S & M Motors. Reasonable citizens are not

lawyers. Nor are they taken to be entirely

ignorant of the legal system or unwilling to

make at least a few superficial enquiries

about the particular case. They will have

neither the time nor the inclination to

explore the facts at length. Their approach

will involve the wielding of a broad brush.

Sadly, in current social circumstances in

Australia, the reasonable lay observer may

even be a little cynical about our

institutions, however undeserved that may be,

for the judiciary faithfully performing its
duties day by busy day. Therefore, when, in

the present case, the critical decision must

be made, it seems to me that it is to be made

by reference to an impressionistic, and to

some extent superficial, opinion based upon a

consideration of the broad features of the

allegation made. It is not made upon a

detailed exploration of and lengthy rumination

about the legal or other merits of it.

If one turns over from that passage to

page 75, where he comes back to the question - in

the meanwhile he has turned his attention to some

of the factual material to which I will need to

return later - he said, towards the top of the

page:

If his Honour were to determine the case adversely to the appellants, might not the superficial observer in the community believe

that he had been influenced either by

knowledge or attitudes retained, perhaps

unconsciously, from the earlier disclosures or

by an unconscious desire to uphold the

correctness of his original decision?

So, we are now down to the "superficial observer in

the cornrnuni ty" .

That is the leading judgment. The court below

did divide. The other - - -

GAUDRON J:  One might quibble with the language, Mr Bainton,

but the fact is, is it not, that it was reasonably possible and a reasonable observer would know that it was reasonably possible that His Honour the

trial judge had formed an opinion on the merits of

proceedings which were part of the litigation

before him?

Tectran 10/5/91

MR BAINTON: In fact, no, Your Honour, with respect, when

one looks at the facts that were determined. I

know the President said so but it was not open.

GAUDRON J:  But it was a legal aid appeal. Anyone familiar

with that would know that there were really, in

essence, only two issues concerned in legal aid:

merit and means.

MR BAINTON:	It was an appeal to the Legal Aid Review Committee, not, I might add, in connection with the
litigation that Mr Justice Badgery-Parker had got to dealing with, because that was what has become,
in the jargon of this case, called "the 1980
litigation" in which Tectran Pty Limited sued
Raybos Australia Pty Ltd, Mr Rajski, for breach of
contract. What the Legal Aid Review Committee was
being asked to look at was a potential action by
Raybos and Rajski against the partners of Allen Allen & Hemsley and Oslington?? - - -

GAUDRON J: Which litigation was commenced?

MR BAINTON: It was commenced subsequently.

GAUDRON J:  Subsequently commenced, yes. And it was given a

number?

MR BAINTON:	Yes.
GAUDRON J:	And it was one of the sets of proceedings that

were before His Honour the trial judge?

MR BAINTON:  It was one of the sets of matters in which the

interlocutory application was before the trial

judge. He had already decided that he was going to

hear the other action.

GAUDRON J:  And it was not wholly unrelated to the issues in the 1980 proceedings?

MR BAINTON:  One would have though, with respect, it was

completely unrelated to them.

GAUDRON J: Well, it would not be unrelated to the basis on

which the defence of those proceedings was to be

made.

MR BAINTON:  No, in that sense it was related to the extent

that it was going to be said, in short, that there

was not a defence.

GAUDRON J: Yes, the issues were related.

MR BAINTON:  A view that had been tried once before

Mr Justice Yeldham and had failed.	But that is the
only relation between the two of them.	The second

Tectran 6 10/5/91

case was based upon the assertion that there was really no action properly available in the first case which would have been determined on the

hearing of the first case, one way or the other.

GAUDRON J: So, the issues were related.

MR BAINTON:  In a very broad general sense they were

related. They were not the same issues. The 1985

litigation could not have got off the ground if the

plaintiff in the 1980 proceedings had succeeded.

GAUDRON J: Well then, they are related intimately in the

sense that they are interdependent.

MR BAINTON:  They are interdependent only that the second

one would have got nowhere unless the first one

failed.

GAUDRON J: But they are interdependent issues, bear

directly one upon the other.

MR BAINTON: In one event.

GAUDRON J:  And His Honour the.trial judge had had something

to do with one of them in circumstances in which it

might reasonably be thought that he might have

formed an opinion as to the merits of them.

MR BAINTON: Well, in reality, probably not so but let me

assume initially that that might be right.	It was
six years earlier.	Can I assume that this Court

has read the trial judge's judgment as well?

DAWSON J: Yes.

MR BAINTON:  He said that he had absolutely no recollection

of - even having entertained it until Rajski

brought up the question when the matters were

mentioned before him; that he then looked at the
minutes of the meeting and found that, indeed, he

was there and that was one of the subject-matters,
but that he still had no recollection of it.	Now,

one knows that and one knows that the Legal Aid

Review Committee dismissed Rajski's application to

have reviewed the decision not to grant legal aid.

Now, we do not know why. We could reasonably

would not be material contrary to his claim but

assume, one would think, that the material that

only such material as he had that might have been

thought to support it and that, at the very
highest, Mr Justice Badgery-Parker, as he

subsequently became, did not think that that was

enough back in April 1984 to justify the grant of

legal aid. One could not go any further than that

Tectran 7 10/5/91

on the facts that were known and known only

substantially because the judge said that is what

had happened.

GAUDRON J: If it is the same materials, that very much is

forming a judgment about the merits of it.

MR BAINTON:  If nothing intervened that might be so, but we

also know that after that there were lengthy

proceedings taking, I think, from recollection, I

am told 30 days before Mr Justice Miles, when he

was a judge of the Supreme Court of New South

Wales, in which he came to the view that on that

material which the Legal Aid Review Committee could not possibly have had, that there was a prima facie case.

Now, why should it be assumed that somebody

who saw the little material that did not convince

him of very much back in 1984 would not, in 1990 or

1991, when he came to hear a matter, be influenced

in any way by his recollecting that when he saw

some of that back in 1984 he did not think it

justified the granting of legal aid? Your Honours,

it is customary to say that a judge who grants

interlocutory relief goes on ultimately to hear the

case or at least, if not customary, it is not

unusual. It frequently happens that materials

presented, for instance, on an application for an

interlocutory injunction is not presented on the

hearing of the trial for one reason or another.	It
may be inadmissible.	Nobody has ever suggested, to

my knowledge, that the same judge who granted

interlocutory relief should not hear a suit.

DAWSON J: But that is not forming a view as to the merits

of the whole proceeding.

MR BAINTON:  No. That is precisely the distinction here.

DAWSON J:  One does, when one is considering whether to

grant legal aid or not, look at the merits of the

whole proceeding for which legal aid is sought.

MR BAINTON:  You can only look at the material that is then

available or then presented to you. To put it th~

other way around: let me assume that a judge

refuses interlocutory relief because he is not

satisfied on the material then put to him that

there is a basis for it and he goes on and hears

the suit. He may well end up granting an

injunction because the material presented to him

then is quite different and necessarily, on that
hypothesis, much in addition to that that he saw at

the early stage. There is another well-known

situation that occurs as well. Judges often have

to rule on the admissibility of material and in the

Tectran 10/5/91

course of that they sometimes have to look at and
read matters that could be highly prejudicial to

one party. If they reject it, as they often do, it

has never been suggested that that should

disqualify them from going on to hear and determine

the matter. It is recognized that judicial

integrity requires that those things be put out of

mind and judges do it.

Now, there is no difference in that situation in principle between a judge putting out of his

mind something that had in fact gone out of it

that he might have seen six or seven years before

in another capacity that did not then convince him

that legal aid should have been granted.	We do not
know why he came to that conclusion.	He was not

allowed to tell us for the reasons that were

explained in the judgment. But one would have to

be somebody, in our submission, of the description

used by Mr Justice Kirby in the decision below - it

would have to be a very superficial observer, in

the sense of somebody who does not understand the

legal process, who would assume that a person, when

a barrister and as a member of the Legal Aid

Committee, reach whatever decision he did at that time on that matter would predispose him, when he

heard the entirety of the evidence many years

later, to adhere to the same view that ex hypothesi

it has got to be assumed he might have taken

earlier. Why would, with respect, anybody think he

should do so, one has to ask.

. At the trial he is going to hear and assess a

lot of evidence. Before the Legal Aid Committee,

he can only look at ~he documents that have been

sent up. Not an enormous amount of time could have

been spent looking at them. If that approach to

the question is going to stand, and by "that
approach" I mean the approach of the President,
then two things are going to happen, in our

submission: first, it is going to encourage a

proliferation of these disqualification arguments
because people are going to say that, "Well, some

Tom, Dick or Harry may take a view of this";

secondly - - -

DAWSON J:  But it is hardly going to do that, is it,

Mr Bainton? After all, it is true that views have

changed somewhat but nowadays it is accepted that
the judge who made the decision in the first

instance does not sit on the appeal because he has

formed a concluded view and he ought not to.

MR BAINTON:  But the appeal is dealing with the same

evidentiary material.

Tectran 9 10/5/91

DAWSON J: Well, in this instance, I thought you had

conceded that at least the issues were related,

were interdependent.

MR BAINTON: Yes. Well, no, I did not concede that but the

view was being put to me fairly strongly that it

was. But there is a great deal of difference

between similarity of issues and the evidence that

is adduced at different times to prove or disprove

issues. Your Honour, this rule has been said to be

introduced substantially so that the public's view

of judicial integrity should be maintained.

If the approach of Mr Justice Kirby is to be

adopted, that, we would submit, will turn out to be

counter-productive. If the public's perception of

judicial integrity is that it is so frail and

precious that it is going to be affected by the

view of this casual and superficial observer, well,

that is how the judicial integrity will end up

being. It is not going to secure the recognized
purpose of the rule. It is going to produce the

impression in the community that judicial integrity

is such that the slightest challenge to it in the

sense of somebody saying without any real knowledge

of what has happened, "This judge must be biased"

is going to lead people to the view that judges may

well be biased, and we know or at least hope that

they are not in that sense.

Now, can I go back into a little detail to

what the material was to demonstrate that in

addition they were applying the wrong test? It was

looked at quite wrongly, at least, by the

President. Mr Justice Badgery-Parker himself

applied the tests as they have been laid down in

this Court. He reviews them, commencing at page 8.

At the bottom of the page, he adopts the language

from Watson and goes through the other cases.

GAUDRON J: Can I just interrupt you there, Mr Bainton? It

is accepted, is it, and established by Livesey that

there may be a reasonable apprehension to that

effect if the judge has formed a view or might have

formed a view on an issue to be determined in the

proceedings?

MR BAINTON:  Might have formed a view that he is unlikely to

change as a result of the evidence in the

proceedings, which is a very different proposition.

That was what Livesey was about.

When one comes to page 11 of the application

book, Mr Justice Badgery-Parker says the test he

has to apply is that of the minds of reasonable

persons, and he goes through the cases and reminds himself of all the expressions that have been used

Tectran 10 10/5/91

1 "'~

in them, and they are correctly extracted. Then he

turns to the next, and as it now turns out, in our submission, to be the critical question: what you

should assume this reasonable right-minded person,

observer, or whatever you are going to call him,

should know about the matter or should be assumed

to know abut the matter. Just above the middle, he

says:

More difficult is the question with what

degree of knowledge -

and then he cites some authorities on that, and he

reaches a conclusion on that at the top of page 15.

He says that it has to be assumed that this person

would know:

all facts generally available to be known to

informed members of the public, and such facts

particular to the case in hand as are

disclosed in Court; but not any facts known only to the judge or one of the parties but

not so disclosed.

And that is the test that this Court has applied.

He then starts, beginning at page 20 but interposing quite a bit thereafter before he

returns to it, what those facts are in his view.

At page 20 at the top, he says:

It has to be said at once that I had not,

prior to the time when the question was

raised -

that until the matter was brought to his attention,

he was unaware, in the sense that he had no

recollection at all, of the fact that he had been a

party to a Legal Aid Review Committee decision.

So, that any views that he might have formed had

gone completely out of his head.

DAWSON J:  Of course, recollection has a habit of restoring

itself progressively.

MR BAINTON: Surely. I know it can. But if a man has

completely forgotten something, it is a fair

indication that it was not such a strong view that

he formed that he could not be persuaded to the

contrary when he knew a lot more about it. It is

very relevant in that sense that he had completely

forgotten it.

A lot more interposes, and one then has to go

to page 33 at about point 8 where he commences a

detailed review of what he thinks the right-minded

person, or whatever you are going to ·call him,

Tectran 11 10/5/91

should know.	It is at the top of the page.	He
says he:

should proceed on the assumption that the

reasonable observer, fair minded as he is,

will understand the way in which the Bar

functions ..... He would note that I have not

practised at the Bar since August 1984 -

and then he goes on to another question which

disappeared out of the case, that is to say, that

he knew a couple of the people at Allens, and then

he says:

It is less easy to come to a confident

answer in relation to my participation in the

deliberations of the Legal Aid Review

Committee.

I have no recollection, unaided by

reference to documents, of any matter in the

Legal Aid Review Committee relating to

Dr Rajski.

And that was his state of mind when he was assigned

to this matter and commenced to hear the

interlocutory proceedings. And then he says he:

was appointed to that committee as the

representative.

He has looked at his diary. It did not do anything

to help him. At about line 14, he says:

On 13 November, with the concurrence of the

parties, the matter was adjourned until 2 pm

so that I could obtain and refer to the

minutes of relevant meetings.

The minutes were made available and they were the

minutes for the period between 1 February 1984, his

reference to Rajski is in the meeting of 11 April.	first meeting, and 2 May 1984, his last. The only
The committee dealt with 39 matters. The 25th of
those is the one concerning Rajski. And he goes on
to say:

A judge is obliged to disqualify himself

from the hearing of an action if circumstances

exist which clearly would cause a fair-minded

observer aware of all the relevant facts to

have an apprehension that the judge would not

bring to the case an impartial mind.

In the present case, such observer must be taken to know the following facts, either

because they appear on the court file, are

Tectran 12 10/5/91

matters of public knowledge, derive from the
provisions of the Legal Services Committee

Act, or have been stated in open court -

and then he goes through a series of matters.	I
think that numbered 3 is slightly misstated.	The

reference to "June 1982" ought to be "June 1981"

but that is probably not very material.

Then he goes on, paragraph by paragraph, to

deal in the utmost detail with all of the facts

that could be known or inferred. That which is

numbered 14 - it is on page 38 - is now quite

irrelevant. That was a separate argument, that

because he had some social contact with one of the

partners of Allens, so it was asserted, he should

have disqualified himself.

He then sets out at 15 what was the practice

of the Legal Aid Review Committee. He says -

although how any member of the public could
possibly have known this if he had not said it in

court does not appear - that he was the member of

the Legal Aid Review Committee who made a

particular examination of the Rajski matter. If

that is right, it would follow that he had before

him whatever documents had been submitted in

support of his application but nothing as to what

was in them, and he continues on until he gets to

that numbered 23, and that is a complete catalogue

of all the matters that the trial judge thought
could have been known to or inferred by the person

that he thought was the appropriate person, that is

the right-minded person or the fair-minded

observer, or whatever of those phrases you chose to

use. He then observes that:

The precise nature of the Legal Aid

Review Committee's decision cannot be

known ..... because Dr Rajski will not waive his

privilege.

He was entitled not to.

The conclusion that he reaches on the

question, having gone through the process of how he

gets there, is on page 44 - sorry, I really should

go back to page 43. He had said, in case it has

been overlooked, that in the meanwhile there had
been the trial before Mr Justice Miles; it took

30 days and 900 pages of transcript, and so forth,

which can only have produced an enormous amount of

material that he could not have seen in the earlier stage. Then he says, at page 43, this hypothetical

person:

Tectran 13 10/5/91

would surely conclude that all material which
was before the Committee that supported

Dr Rajski's will be introduced by him in the

forthcoming proceedings, and if there was any

matter before the Committee which was adverse

to Dr Rajski, it will probably be adduced by

his opponents, so that the circumstance that I

have been made aware of some or all of it

before is of no consequence.

Further, the fairminded observer would have regard to the fact, stressed in a number

of the judgments ..... that a judge is, by

virtue of his experience at the bar, his

training and his discipline, presumed to be

capable of distinguishing between admissible

and inadmissible evidence and, having heard

inadmissible evidence, of laying it aside in

order to reach his ultimate conclusion.

And his conclusion starts this way, at page 44:

It appears to me that it is only in the

mind of one who assumes the probability of

bias that the circumstances relating to my involvement in the determination of one of

Dr Rajski's legal aid applications might raise

an apprehension of bias: and the person who

approached the matter with that assumption is

not the reasonable and fairminded person whose

state of mind is to be considered.

And, in our respectful submission, that is a correct analysis and a correct conclusion.

Having thereafter recounted a few matters that

Rajski said, he repeats his view at the bottom of

page 46:

For a judge to disqualify himself from

sitting for such reasons seems to me to amount

to an abdication of responsibility, and to

open the door to a situation where any

litigant who did not like the way his case was
progressing before a certain judge could, by

resort to slander of the judge, bring about

his disqualification and so abort the

litigation.

DAWSON J: That does seem to be taking matters too far, does

it not? I mean, the number of judges who have sat

on a Legal Aid Review Committee dealing with one of

the matters which is not unconnected with the

matter in question, must be fairly few.

MR BAINTON: Yes, it would not - - -

Tectran 14 10/5/91

DAWSON J: It does not really open the floodgates at all.

MR BAINTON:  He is referring to the matters - - -

DAWSON J:  He may be talking generally. No, he is not:

"for such reasons".

MR BAINTON:	- - - earlier on page 46.
GAUDRON J:	He is referring to a different incident, is he

not?

MR BAINTON:  I am sorry?

GAUDRON J: This has got nothing to do with the issue in

these proceedings. This is a different incident in

the course of proceedings.

MR BAINTON: This relates to what he set out at the bottom

of page 45 and the top of page 46 and it is

different in terms - - -

GAUDRON J: This is a particular incident that happened. It

is not the issue upon which the Court of Appeal

decided?

MR BAINTON:	No, it is not.
DAWSON J:	We need not bother about it then.
GAUDRON J:	And you do not challenge what was said by

Mr Justice Badgery-Parker on this?

MR BAINTON:  I do not have to because it did not get

mentioned later.

GAUDRON J:	No.
MR BAINTON:	The only point I am trying to make is that he

is applying his mind to two things: there is the

obligation in a proper case to disqualify himself,

not to disqualify himself for reasons that do not	if a proper case occurred; of the equal obligation
properly justify it, and he has examined both and
applied the correct principles.

Now when one comes to see what the Court of

Appeal made of it, Mr Justice Kirby - - -

DAWSON J:  I do not want to stop you, Mr Bainton, but we

have read the judgments.

MR BAINTON:  What it comes down to is Mr Justice Kirby

applied the principle that I earlier read to you.

Mr Justice Priestley dealt with it somewhat

differently. We do not quite know how he got to

the answer he gave to the question but he thought

Tectran 15 10/5/91

the relevant factual material the hypothetical

observer would take into account is that which he

recounts at page 93 from about the middle to about

line 8 on page 94. He then goes on to consider:

the Code of Judicial Conduct promulgated by

the American Bar Association.

States the test in Australia at page 99, and his

conclusion is at lines 17, 18 and 19, but how he

got from the one to the other he does not tell us.

It can only be, of course, based on the fact that

he was a member of the Legal Aid Review Committee

that reviewed the application, but why he was of
the view that that should be a reason to disqualify

him six or seven years later he does not tell us.

Mr Justice Mahoney's view was to the contrary.

DAWSON J: Well, he does say. He says it in the first

sentence of his second paragraph.

MR BAINTON:  He states the principle.

DAWSON J: But he states the basis on which he reaches his

conclusion in that second paragraph.

MR BAINTON:  Yes, in the general sense that he thinks -

the public might entertain a reasonable

apprehension -

but why he thinks the public should, in the light

of the known and found facts, entertain a

reasonable apprehension is the problem.	He does
not.	The only one who says anything about that is
the President.	·

DAWSON J: Well, he says that the salient features include

the fact that Mr Badgery-Parker formed the view

that in 1984 the appellant's case was without merit

and that case was to a significant extent prior to

the proceedings with which Mr Justice Badgery-

Parker, in 1989, was dealing on an interlocutory

basis. That is pretty clear.

MR BAINTON:  It is clear if one knew nothing more about it

but when one does know a little bit more about it,

it obfuscates the problem. You start with a

proposition that Mr Justice Badgery-Parker had

something before him in April 1984. In the light

of the description he gave as to the volume of

material and business, it could not have been an

enormous amount of material. Thereafter, there was

a long trial in which a decision was made by

another judge on a quantity of material that was

adduced before him that there was a prima facie

case and then five years later after that, this

Tectran 16 10/5/91

matter is to come on for trial, and the suggestion

has to be that because somebody looked at sketchy

material seven years ago and came to the conclusion

that the sketchy material, whatever it was, did not

justify the grant of legal aid, is incapable of

bringing an unprejudiced mind to the trial of the

action.

GAUDRON J: Well, we are speculating about whether or not it

was sketchy. We simply do not know that.

MR BAINTON: Well, Your Honour, neither does the

hypothetical member of the public. We know it

could not have been too much because of the time

involved. Let it be assumed that it contained at
great length what Rajski wanted to say about the

matter, there is still an enormous amount more

known now because of the hearing before

Mr Justice Miles, and the proposition, really, has to be, because somebody has seen something at one

stage and been unconvinced by it; he is a judge of

the Supreme Court of New South Wales; he is

incapable and would be regarded by a fair-minded

person as being incapable of fairly trying that

issue.

GAUDRON J:  We cannot take into account, it seems to be

implicit in your submission, that the proceedings

were, to some extent, of an unusual nature.

MR BAINTON:	Which proceedings is Your Honour referring to?
GAUDRON J:	The proceedings upon which His Honour the

trial judge made a decision on the Legal Aid Review

Committee.

MR BAINTON:  The proposal to bring an action against the

solicitors and counsel, yes, it does not happen

every day.

GAUDRON J:  No. They were unusual proceedings.

MR BAINTON:	It was an unusual case sought to be mounted.
GAUDRON J:	And the inference that comes is not that he saw

material or evidence or some or all or not enough

or too much, but that he had a view about the

proceedings themselves.

MR BAINTON: Well, the next question is, "Are you going to

assume that a fair-minded observer will have such a

poor regard for judicial integrity that he is going
to say that a judge who formed that view on

whatever it was, six or seven years ago, cannot try

a case?"

Tectran 17 10/5/91

GAUDRON J:  Is not that really what was said in Livesey?

Although the time difference is not the same.	But
is not Livesey about forming a view about the merits of some aspect of the proceedings?

MR BAINTON: Livesey is about forming and expressing a view

in terms that made it clear, it was thought, that

those who formed and expressed that view were

unlikely to change it. That is not this situation.

It is quite remote from it. It was those two

latter aspects of Livesey - - -

DAWSON J: Well, if you form a view and act on it, it is

fairly similar, is it not?

MR BAINTON: It depends what you are doing.

DAWSON J:	Well, you refuse legal aid.
MR BAINTON:	The committee refused legal aid.
DAWSON J:	The committee refused legal aid and I gather it

was unanimous, or no one suggested it was not.

MR BAINTON: Well, we do not know because the material

actually before the committee was privileged and

the privilege was not waived, but let it be assumed

it was: you still do not know what the material

was and why the committee unanimously -

DAWSON J:  Well, that does not make it better. That makes

it rather worse from your point of view, does it

not, because the fair-minded observer would have a

whole range of possibilities open to him.

MR BAINTON: Well, the fair-minded observer would not think

it was done out of whim or pique. He would assume

that the material, whatever it was, did not

convince the committee that the grant of legal aid

was appropriate. That could be because it did not

convince the committee that there was a case or it

did not convince the committee that the case was

strong enough to justify the expense that would be

involved in granting legal aid, or whatever.

DAWSON J: Mr Bainton, if, for instance, a judge, whilst h~

has been at the bar, has held a brief in relation

to a certain litigant, not unconnected with the

matters which come before the court, he does not

say, "Well, I've forgotten all about it", even if

that be the fact, and let us say it is an appeal

court, "There has been an intermediate decision by

a court at first instance and that's displaced any

view I've had." He says, "I do not sit."

MR BAINTON: Well, normally, the list is organized so that

does not happen.

Tectran 18 10/5/91

DAWSON J:  And he does not expect people to say that now he

is a judge he will put everything aside and because

of his newly-acquired judicial capacities, he will

bring an impartial mind to the determination of the

case. He well might, of course, but he does not

expect a fair-minded observer - or he does not
expect that to remove, if he were to say it, the

apprehension of a fair-minded observer.

MR BAINTON:  Your Honour has added to that an ingredient that is not present in this case. The analogy

might be a little closer if a judge who had had a

brief of that description at the bar, found himself

hearing a case. He has completely forgotten about

it and he is reminded that he did have a brief of

some sort at some stage.	The question then is what
should he do.	Now, it would not follow

automatically that he is obliged to disqualify

himself.	He might, for various reasons, decide
that he would.	The question is whether the

situation would require him to do so. That would

depend upon what was in the other brief, in the

first place, what recollection he had of it and the

degree, if any, of connection between that

proceeding, whatever it was that he held a brief

in, and this.

DAWSON J: Well, if it happened in the middle of a

proceeding, there are factors which may influence

him in the exercise of his discretion which would

not, if it were brought to his attention at the

beginning, but if it were brought to his attention

before the proceeding commenced, there is no doubt

what he would do.

MR BAINTON: There is no doubt of what he would do because

people do not like this situation to arise.

DAWSON J: Because there is an apprehension or may be an

apprehension on the part of fair-minded persons

that his mind was somehow affected by his

connection with the case.

MR BAINTON:  Or because nobody wants to have that argument

put about him.

DAWSON J: Well, that would not be a correct basis on which

to exercise his discretion.

MR BAINTON:	Or to have time wasted, in case somebody does.
DAWSON J:	And that would not be a correct basis either.

MR BAINTON: It is not a basis that would require a judge

not to sit. I was not saying that. I was saying

it is a basis on which a decision may well be made.

Tectran 19 10/5/91

DAWSON J:  No, no, would not be proper for him to take into

account the question of time wasted or not wanting

to entertain an argument of that sort because it

involves some embarrassment. It would be improper

for him to proceed on that basis. But quite

properly, he would say, I would suggest, in that
circumstance, unless there was something more to it

than I put to you, that he would not sit.

MR BAINTON: Well, again, it must depend upon what happened

before. Let me take an example: suppose he was reminded that at some stage in his career at the bar he had acted for one of the parties who was

trustee of some will and some construction summons

which bore no relation whatever to the matter

before him. Nobody would suggest he should

disqualify himself for that reason.

DAWSON J: No, no, what I was putting to you: where a

person was involved with a litigant in a case in a

professional capacity with the same litigant in a

case which was not unconnected came before the

person who had become a judge and that is analogous

to this situation.

MR BAINTON: If you add all of those facts. Well, again, it

has to depend upon what a fair-minded observer

would be able to conclude that he had learnt

earlier. It may be nothing more than was common

ground in the second piece of litigation. That

could hardly disqualify him. You have to turn your

mind to what it should be assumed Mr Badgery-Parker

learnt and, hypothetically, is going to get dragged

b~ck into his mind six years after he sat on this

review committee. If the view is taken that a

judge who - a person who becomes a judge has seen

any material that could be relevant to a case in

some connection, remembering it or not remembering

it, if that is to be the rule, let it be stated.

In our submission, it has never been stated in this

Court or elsewhere to those extremes. It has been

stated that he should disqualify himself if, but

only if, the circumstances are such as to lead the

right-minded or fair-minded observer to think that
he is prejudiced or likely to be prejudiced against

one party or the other and that has to depend upon

what the information was and the possible

interconnection between the first and the second
times of acquiring information and the likely
influence on him as a judge of the first. It

cannot be an absolute rule, with respect.

If the proper test is that that has been

enunciated in this Court, that the fair-minded

observer, or to use the English rule, on the facts

as found or stated by Mr Justice Badgery-Parker in

this case, he was not, in our submission, required

Tectran 20 10/5/91

to disqualify himself. If you apply the

President's test of what the superficial and relevantly ignorant person might think, then maybe

you reach a different conclusion but the point here, in our submission, is which of those two

approaches is correct, and it needs to be

determined because this sort of application to

disqualify people is regrettably proliferating,

very often for indirect purposes. The rule, in our

submission, needs to be stated clearly.

Your Honours have looked at

Mr Justice Mahoney's judgment, I take it?

DAWSON J: Yes, we have.

MR BAINTON: In our submission, he has applied it

appropriately and correctly. He said not enough

appeared in this case to require that judge to
disqualify himself because no reasonable-minded

person would think that a judge would be prejudiced

against a party because of what he saw earlier.

Prejudice is not an automatic consequence of the

gaining of knowledge and nobody normally would

assert that it was. You have to go further than

the gaining of knowledge and, indeed, you have to

go further than the mere fact that it was acted on

when you know that subsequent to that much more

knowledge is gained and available.

In our submission, first, this is a proper case because the English and Australian tests have

diversified; the President's test here is an

extreme that, well, in our submission, would have

quite unfortunate consequences for litigation

generally if it is allowed to stand and, in this

particular case, the President simply erred. It is

not only a proper case to establish the right
principle but it is a case where, if it is
established, the decision below should be reversed

and the reasons for decision of Mr Justice Mahoney

should be adopted.

DAWSON J: Thank you, Mr Bainton. We need not trouble you,

Mr Basten and Mr Nicholas.

Having regard to the particular and unusual

facts of this case, we think that there is no reason to doubt the correctness of the result

below. Accordingly, special leave will be refused.

MR BASTEN: With costs, if Your Honours please.

MR NICHOLAS:  We do not ask for costs, Your Honour.

DAWSON J:  Yes. What do you say as to the one application

for costs, Mr Bainton?

Tectran 21 10/5/91

MR BAINTON: Nothing I can say.

DAWSON J: With costs in relation to Mr Basten's clients.

AT 3.45 PM THE MATTER WAS ADJOURNED SINE DIE

Tectran 22 10/5/91