The Commonwealth of Australia v Davis Samuel Pty Ltd [No 4]

COMMONWEALTH OF AUSTRALIA v DAVIS SAMUEL PTY LTD [No 4]
[2008] ACTSC 112 (26 September 2008)

CONSTITUTIONAL LAW – operation and effect of Commonwealth Constitution – whether notice under s 78B of the Judiciary Act 1903 (Cth) should be given – issue of fact to be determined first.
COURTS AND JUDGES – request to terminate trial – allegation that judge sleeping – procedure to determine the issue – evidence available on the issue.

Judiciary Act1903 (Cth) s 78B

Evidence Act 1995 (Cth) s 36, 69(3)

Commonwealth of Australia v Davis Samuel Pty Ltd [No 3] [2008] ACTSC 76
Cesan v The Queen; Rivadavia v TheQueen [2008] HCATrans 320
Cesan v Director of Public Prosecutions; Mas Rivadavia v Director of Public Prosecutions (2007) 174 A Crim R 385
Syncap Management (Rural) Australia Ltd (ACN 095 807 837) v Lyford & Anor (2004) 51 ACSR 223

R v Betson [2004] 2 Cr App R (s) 52

Capelvenere v Omega Developments Corporation Pty Ltd (1983) 77 FLR 385
Green v Jones [1979] 2 NSWLR 812

In the marriage ofSmith and Saywell (1980) 47 FLR 267
Glennan v Commissioner of Taxation (2003) 77 ALJR 1195
Daniels v Deputy Commissioner of Taxation [2007] SASC 431
Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292
Stathooles v Townsville Demolitions Pty Ltd (ACN 010 490 123) & Ors (Unreported, Queensland Court of Appeal, 284/1995, Macrossan CJ, Pincus JA and White J, 3 Sept 1995)
R v Grant [1964] SASR 331
R v Langham and Langham [1972] Crim LR 457
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Coward v Stapleton (1953) 90 CLR 573
Barton v Walker; Barton v O’Brien [1979] 2 NSWLR 740
Re the Attorney-General’s Application.Attorney-General v Butterworth [1963] 1 QB 696
Briginshaw v Briginshaw (1938) 60 CLR 336
Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73

EX TEMPORE JUDGMENT

No. SC 75 of 1999

Judge: Refshauge J
Supreme Court of the ACT

Date: 26 September 2008

IN THE SUPREME COURT OF THE       )
  )          No. SC 75 of 1999
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:COMMONWEALTH OF AUSTRALIA

Plaintiff

AND:DAVIS SAMUEL PTY LTD
ACN 083 081 984

First Defendant

AND:DAVID JOHN MUIR

Second Defendant

AND:CALLFORM PTY LIMITED
ACN 072 099 668

Third Defendant

AND:PETER MICHAEL CAIN

Fourth Defendant

AND:ALLAN PAUL ENDRESZ

Fifth Defendant

AND:CTC RESOURCES NL
ACN 009 061 036

Sixth Defendant

AND:JOZSEF ENDRESZ

Seventh Defendant

AND:DAWN MAY ENDRESZ

Eighth Defendant

AND:WILLIAM ARTHUR FORGE

Ninth Defendant

AND:KAMANGA HOLDINGS PTY LTD
ACN 003 316 292

Tenth Defendant

AND:PELLON PTY LTD
ACN 082 375 951

Eleventh Defendant

AND:MICHAEL McCANN

Twelfth Defendant

AND:AMATIVE PTY LTD
ACN 082 375 924

Thirteenth Defendant

AND:MARK JOSEPH ENDRESZ

Fourteenth Defendant

AND:BISOYA PTY LTD
ACN 003 016 242

Fifteenth Defendant

AND:WINTON OIL NL
ACN 001 863 878

Sixteenth Defendant

AND:QUANCORP PTY LTD
ACN 002 755 133

Seventeenth Defendant

AND:ALLAN PAUL ENDRESZ as representative of the members of ‘BORDER BASKETBALL ASSOCIATION INC’ an unincorporated association

Eighteenth Defendant

AND:RODNEY JAMES ENDRESZ

Nineteenth Defendant

AND:JOY BEVERLEY ENDRESZ

Twentieth Defendant

AND:TRESMONAY PTY LIMITED
ACN 073 120 635

Twenty-first Defendant

AND:ACT ORGANICS PTY LTD
ACN 008 628 662

Twenty-second Defendant

AND:GRAHAM McCANN PTY LTD
ACN 008 653 969

Twenty-third Defendant

AND:SANDRA ENDRESZ

Twenty-fourth Defendant

AND:LORRAINE OLIVE FORGE

Twenty-fifth Defendant

AND:CHRISTOPHER MUIR

Twenty-sixth Defendant

AND:TNG LIMITED
ACN 008 817 023

Twenty-seventh Defendant

AND:DARREN SMAILES

Twenty-eighth Defendant

AND:SHANE SMAILES

Twenty-ninth Defendant

AND:PETER JOHN CLARK

Third Party

ORDER

Judge:  Refshauge J
Date:  26 September 2008
Place:  Canberra

THE COURT ORDERS THAT:

The application be dismissed with costs

One of the defendants, the fifth defendant, Mr Allan Endresz, has applied for me to “withdraw” from the proceedings on the ground that I have “not exercised [my] judicial powers in accordance with traditional judicial processes consistent with ‘due process’, ‘a fair trial’, or ‘natural justice’ by sleeping during the trial.”
I have construed this application to mean that Mr Endresz has sought that I terminate the trial because it cannot be completed fairly. As a litigant in person, Mr Endresz cannot be expected by me to be familiar with all the appropriate formalities of procedure and due allowance must be given for this.

Background

The proceedings have been generally described in Commonwealth of Australia v Davis Samuel Pty Ltd and Others [No 3] [2008] ACTSC 76, and I do not need to detail again what I said there. The trial began on 10 June 2008. It was originally scheduled for three weeks but it was clear that this was not going to be sufficient time to complete it. A further period of five weeks was set aside from 26 August 2008. Later, that was extended to six weeks to accommodate the hearing.
As at 11 September 2008, the trial had proceeded for 27 days of hearing. On 11 September 2008, when court resumed, Mr M J Slattery QC, senior counsel for the plaintiff, addressed the court as follows:
Your Honour, before we resume, I wish to raise a matter with your Honour that occurred after court yesterday and it is of sufficient concern to me as counsel for the plaintiff that I should raise it with your Honour now. Your Honour adjourned somewhere, according to my note, about 4.20 or 4.25 yesterday.
And when - shortly after that adjournment occurred, within about two or three minutes, Mr Allan Endresz came up to me and the following conversation took place between Mr Endresz and myself. I took a file note of this conversation because of its content and what I propose to do is to read out my file note. The note was taken at 4.55 pm, about half an hour after the conversation was completed.
The conversation, as recorded by me, is to the following effect. Before I start, could I say this? I asked a number of other persons on the plaintiff’s side, heard this conversation, or parts of it, and there are some parts of it which occurred more publicly than what I am about to read out. But the essence of it, to the extent that it was basically between Mr Allan Endresz and myself and a very small group of people, is what I am about to read.
Mr Endresz said the following: “Mr Slattery, there is a matter I want to raise with you between us.” I said, “What is it?” He said, “The Judge has been asleep in parts of these proceedings.” I said, “No, he has not. I have not seen any such thing”. He said, “I have been taking notes of it,” that is, that is what Allan Endresz said.
I then said, “Let me make it clear to you that the judge has not been asleep and I cannot see any basis for you to say that. Furthermore, this cannot be a matter just between us. I will raise this communication in open court tomorrow so the court can see what is being said about it as a matter of fairness to everyone.”
Allan Endresz then said - I then said to him a question, “What is your purpose in raising this?” And he said, “It will be of interest to the High Court.” I said then, “Well, I will raise it tomorrow.”
Now, your Honour, I wish to say in open court what I said to Mr Allan Endresz, that this issue having been raised, I want to make it perfectly clear that I have not seen the court asleep at any stage and I - but it has these implications. There is a case being argued in the High Court about this issue right now, which is arguments taken place and it is reserved. It is a criminal matter, rather unlike this one - this case.
That case was, of course, Cesan v The Queen; Rivadavia v TheQueen [2008] HCATrans 320 (3 September 2008). Just a week before the conversation to which Mr Slattery referred, the High Court had allowed each appeal and ordered that there be a new trial of each appellant and announced that the reasons would be published later.
Those reasons have not yet been published. That is regrettable, since it leaves me without guidance on this issue, except that the reasoning of the majority on the Court of Appeal of New South Wales in Cesan v Director of Public Prosecutions; Mas Rivadavia v Director of Public Prosecutions (2007) 174 A Crim R 385 has not been accepted.
I would be surprised, however, if the High Court ultimately held that any inattentiveness of a judge, whether from sleeping or other cause, regardless of how important to the proceedings it was that was happening, or how long the inattentiveness lasted, caused the trial to be unfair. As will become apparent, however, this is not something I need to consider at this stage.
In response to what Mr Slattery said, and at my invitation, Mr Endresz said:
Firstly, in substance what the file note Mr Slattery has taken is correct, save and except the statement he said that it will be of interest to the High Court, that’s not what I said. They were all having a bit of a giggle over there, including Mr Slattery and I said, ‘Well, the High Court was not laughing.’ So, that is the - in relation to that and that is the way I understood the conversation went.
He then gave an explanation as to why he was concerned and continued:
And in this instance, your Honour, and I have taken a note on a couple of instances that I thought was important in cross-examination of Mr Cain and on the face of it the view was that you - you looked like you were having a sleep at that stage or a nod off. And it may very well be that that is - may not have been the case, the way you were looking or the way you were sitting, but nevertheless, I just felt in terms of, you know, that where we are as defendants and we are in a very difficult position, as you know, trying to make …(inaudible)… and so on.
But nevertheless, I have raised that point and I was aware of the issue of the High Court, as Mr Slattery has indicated, in terms of fairness in relation to how the court is conducted and then I have raised that point. So that is where I leave it, your Honour.
Mr Slattery expressly rejected the suggestion that any of the plaintiff’s lawyers were giggling. It was clear, however, that the matter could not properly be left there. Accordingly, at the conclusion of the proceedings on that day, I gave the following direction:
Mr Endresz, if you want to make an application arising out of that matter you should have it ready. We will not argue it because of the time scale, but you should have it ready to inform the court on Monday when we resume.”
The court did not sit on this matter on 12 September 2008 and when the trial resumed on Monday, 15 September 2008 no application was filed, although Mr Endresz did say that he “…would flag that at some stage in the next couple of days I will raise a formal application on the sleeping issue”.
Nothing was done, and on the afternoon of 17 September 2008 Mr Slattery raised the matter again. It was important, because Mr Endresz had indicated that he was not going to be in court on the following two days, the Thursday and Friday of that week. He was making that decision freely, knowing the consequences of it.
In any event, Mr Slattery enquired through the court whether a formal application was still going to be made. Mr Endresz indicated that he had an application and though he wanted to “insert” a “couple of cases into his application” he was ready to make it then orally. That was plainly unsatisfactory and I directed that he file a written application with any supporting material and an outline of his submissions by 10 a.m. the next day. He agreed to do so.
On 18 September 2008 Mr Peter Cain, the fourth defendant, as agent for Mr Endresz, sought to file in court the application and affidavit of Mr Endresz and a written submission. I granted leave for them to be filed. As Mr Endresz was not in court that day or on the following day the matter could not be further addressed until the following week.
Mr Cain expressly stated that the application was only made by Mr Endresz. On 19 September 2008, however, I raised an issue with Mr Cain as agent for Mr Endresz. Having looked at the application overnight I noted that in his submission Mr Endresz had raised an issue under the Constitution of Australia. He submitted that his application was a matter arising under the Constitution or involving its interpretation.

I asked Mr Cain to convey to Mr Endresz that s 78B of the Judiciary Act1903 (Cth) expressly made it a duty of the court, in this case this court, not to proceed with such a matter until a notice in the terms required by that section had been served on the Attorneys-General of the Commonwealth and the States, and that a reasonable time had elapsed since the giving of that notice.
Mr Giles, who appeared for the 27th defendant, directed my attention to some cases including Syncap Management Rural Australia Ltd ACN 095807837 v Lyford & Anor (2004) 51 ACSR 223 where the need for such a notice was discussed.
Both he and Mr Slattery suggested there was a possible process which would permit the application, or part of it, to be heard without the need for notices under s 78B of the Judiciary Act 1903 (Cth). Nevertheless, I asked Mr Cain to draw this matter to the attention of Mr Endresz so that he could consider his position.
When the matter resumed on 23 September 2008 I explained the position to Mr Endresz. The Commonwealth, who opposed the application, indicated it would be in a position to address me on the issue of the notices later and the trial otherwise proceeded.
In relation to the issue, I clearly advised Mr Endresz how he should address the matter in the trial. On 11 September 2008 I had said to him
Mr Endresz, as to the third point that Mr Slattery raises, it is important. I mean, if you have the view that I have fallen asleep then it behoves you to rise and say ‘Your Honour’ or something so that it can be clear. If I can just point out that there is no doubt that your failure to object to Mr McLennan’s [Victorian Magistrate who presided over criminal proceedings against Mr Endresz] continuing participation in the proceedings would have fundamentally undermined your possibility of challenging that on appeal, for example.
…
And so if I can add to your learning in that sense, if you fail to, at least hereafter, fail to draw attention to that issue then your position would be much weakened if it were, for whatever reason, that you wish to take it further at any stage, so that is important. Certainly as I say, I am not aware, but I suppose I would not be if I was in a sense, but you know when, generally when you have been asleep, and I am not aware of that.
Despite that warning the issue was raised in the following circumstances on 23 September 2008. After the lunch adjournment the following exchange took place.
HIS HONOUR: Yes, thank you. Very well anything else?
MR A ENDRESZ: Yes, your Honour.
HIS HONOUR: Yes, Mr Allan Endresz?
MR A ENDRESZ: Your Honour, last week when I left on Wednesday?
HIS HONOUR: Yes.
MR A ENDRESZ: You made the point to me not to jeopardise my appeal position.
HIS HONOUR: Yes.
MR A ENDRESZ: In relation to the sleeping issue.
HIS HONOUR: Yes.
MR A ENDRESZ: I just want to raise with the court that at 12.53 today, your
Honour slept.
HIS HONOUR: I did not.
MR A ENDRESZ: At 12.58 you woke up.
HIS HONOUR: I didn’t - well - - -
MR A ENDRESZ: And I put the point that was also brought to me by
a couple of witnesses in court at the time.
No comment or application had been made at 12.53 pm on that day.
On 24 September 2008 I explained my rejection of the allegation that Mr Endresz had made. I said:
I think there is much merit in the point that is being made that there ought to be contemporaneous references to these things I mean the reason why I was able to say yesterday in relation to Mr Endresz is that I recognised yesterday, although since that matter has arisen I have tried to avoid that. Yesterday I was aware that in order to concentrate I closed my eyes and I turned around when I realised that, Mr Endresz, thinking that he might say something and he did not and I thought, ‘Well, I was not asleep,’ I was hearing every word that was being said, in fact I was concentrating as a result. When nothing happened I assumed that we were just moving on. I was able to identify the point in which he was alleging that I was asleep and able to say that I was not because I knew what he was referring to.”
On 24 September 2008 an incident occurred which is relevant to the issue. Mr Slattery drew my attention to a gentleman in the public gallery who he said appeared to be taking notes. Having regard to the statement by Mr Endresz that he was to have other witnesses, Mr Slattery considered that any notes should be preserved and identified.
Mr Endresz has certainly referred to other witnesses. Indeed in this very interchange he confirmed - I quote:
Well, I would say your Honour quite openly that we will have other witnesses that are not here either, and I will put up further supporting evidence if I need to. So it is not a question of this particular witness, I can openly tell the court there will be other parties confirming my evidence in relation to the affidavit so if that is at the appropriate time you wish to have those persons tender that evidence I have no problem with that.”
In the event, as it happened, no such other witnesses or material was forthcoming on this application. In any event, I called that gentleman forward under the power given to me by s 36 of the Evidence Act 1995 (Cth). The gentleman was sworn and relevantly gave the following evidence.
I said:
Take a seat there if you wish, would you state your full name?---Anthony Gerard Liston.
And your occupation?---I am an accountant.
All right, you have heard the submission that has been made to me that you have been taking notes in this court about the proceedings of the court, is that correct?---Yes, your Honour, it is. But on those notes I take other - anything I remember, jobs I need to do, are on that sheet as well.
I see, are there any notes about the proceedings in this court?---Yes, there are, your Honour.
Right, do you have those with you?---I do.
Perhaps they should be handed to my associate. I suppose they should be marked although one normally does not mark documents produced under subpoena but perhaps for safety they should be marked.
MR SLATTERY: Yes.
HIS HONOUR: And then I can give them to the plaintiff.
Is there any reason why any party should not have access to those notes?---No, your Honour.
Is there anything in them that - - -?---There is nothing of a private, only work nature your Honour.
All right, thank you.
The notes were handed to my associate, marked for identification and copies were made for each of the parties. I did not look at them. The evidence continued.
MR SLATTERY: Mr Liston, there are in the documents MFI 19 that you have provided to the court some observations about his Honour, is that right?---There is.
My simple question to you in relation to those is were you asked at the question of somebody to make those notes?---No.
Well, how did it come about that you are taking notes of this kind?---I was aware of the proceedings and I kept notes. I keep notes on anything I see and that is what I wrote down, so no, it was not requested.
Are you an acquaintance of any of the parties to these proceedings?---Yes, I am.
Who is that?---Mr Allan Endresz.
Thanks, I have no further questions, your Honour.
HIS HONOUR: Thank you. Mr Endresz?
MR ALLAN ENDRESZ: No questions, your Honour.
HIS HONOUR: Thank you. Mr Giles
MR GILES: No.
Ultimately Mr Endresz stated that Mr Liston was one of his employees.
Clearly this application had to be heard and determined as soon as the proper conduct of the case and the relevant convenience of and fairness to the parties and witnesses could permit. Accordingly on 24 September 2008 I directed that this application was to be heard on 25 September 2008. I directed that any additional affidavits on which Mr Endresz proposed to rely should be filed by 10 am on 25 September 2008. He consented to that course.

I directed that the Commonwealth then file any affidavits on which it proposed to rely thereafter as soon as practicable and subject to the convenience of the course of the trial and having given Mr Endresz time to read and consider any of the affidavits of the Commonwealth, the hearing of the application would take place on 25 September 2008.

The Hearing

In the event, Mr Endresz filed no further affidavits. He tendered the notes taken by Mr Liston but that was objected to, and as they were clearly inadmissible under s 69(3) of the Evidence Act 1995 (Cth) I rejected the tender.
No other defendant joined in the application by Mr Endresz. Indeed the 27th defendant opposed it. The Commonwealth relied on an affidavit of Alexander Norman Holcombe sworn on 25 September 2008. The Commonwealth objected to most of the paragraphs of the affidavit of Mr Endresz. The objections were well-based. They primarily consisted of two challenges, namely that the assertions were conclusions of fact and not the primary facts or observations on which those facts were based, and that the assertions were matters of submission.
I considered that the matters of submission could be treated as such. As to the other objection I was concerned that as Mr Endresz was a litigant in person I should not apply the rules of evidence too technically or too harshly against him, while preserving my duty to be fair to the Commonwealth as well.
If I had upheld this latter objection, I would have rejected virtually all the evidence of Mr Endresz. It is not always easy as a lay person to understand that to give proper evidence it is necessary to say something like, “His Honour’s eyes were closed, he was slumped forward in his chair with his head on one side and was snoring” rather than to assert merely, “His Honour was asleep.”
I considered that the matter could fairly be dealt with by admitting the paragraphs and considering the objection rather as going to the weight of the evidence rather than its admissibility. Both deponents, Mr Endresz and Mr Holcombe, were cross-examined on their affidavits. Both Mr Endresz and Mr Slattery made submissions. Mr Giles adopted the submissions of Mr Slattery.

The section 78B issue

While s 78B of the Judiciary Act 1903 (Cth) imposes a positive duty on the court not to proceed with a cause involving a matter arising under the constitution, or involving its interpretation, until the relevant notices have been given and the relevant Attorneys-General have had a reasonable time to consider their position, there have been considered statements that assist in understanding what might otherwise be a provision that could cause great difficulty and unnecessary inconvenience.
For example, Fitzgerald J criticised the provision in Capelvenere v Omega Developments Corporation Pty Ltd (1983) 77 FLR 385 on the ground that it could give rise to spurious or insubstantial claims which would lead to costly delays, particularly where the High Court had already decided the case. In Green v Jones [1979] 2 NSWLR 812, however, Hunt J held at 818 that it was unlikely that the section:
…was intended to permit never-ending challenges to matters which have already been determined by the High Court, particularly recently by that Court.
The Full Court of the Family Court held to similar effect in In the marriage ofSmith and Saywell (1980) 47 FLR 267 at 289.
In Green v Jones, Hunt J also observed at 818:
In my opinion, it is not sufficient that the plaintiff bona fide and genuinely believes that his challenge involves a matter arising under the Constitution. He must establish that it does involve such a matter.
Thus, in Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 at 74, Toohey J said,
In terms of section 78B, a cause does not “involve” a matter arising under the Constitution or involving its interpretation merely because someone asserts that it does. That is not to say that the strength or weakness of the proposition is critical. But it must be established that the challenge does involve a matter arising under the Constitution.
I have omitted the footnotes.
This passage was cited with approval by a Full Court of the High Court in Glennan v Commissioner of Taxation (2003) 77 ALJR 1195, at 1197-8. See also Daniels v Deputy Commissioner of Taxation [2007] SASC 431, a decision of the Full Court of the Supreme Court of South Australia at [17].
These considerations were examined by French J in Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292 at 297, and his Honour concluded:
Section 78B does not impose on the Court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be.
See also Daniels v Deputy Commissioner of Taxation, supra.
Although I can find no authority on point, it does seem to me that the principles to be discerned from these authorities allow me to hold that where a constitutional point, as that term is used by French J, depends on whether some fact or facts exist, the point does not in fact arise until a determination is made as to whether that fact or those facts exist.
That is to say, the constitutional point in this case is whether there has been in this court a fair trial. That issue only arises if it is a fact that I have been asleep during all or part of the proceedings because it is that which is said deprives Mr Endresz of the fair trial to which he says the Constitution gives him a right. Accordingly, I agreed to proceed to determine that factual issue without proceeding to require notices to be issued under s 78B of the Judiciary Act (1903) (Cth).

The Factual Issue

It is a difficult and somewhat embarrassing issue for me to have to determine whether I was asleep during some part of the trial. As I said on 11 September 2008, when the matter was raised, I was not aware of having slept during any part of the trial. It is clearly undesirable to do so, though it may not necessarily result in an unfair trial. So much was held in R v Betson [2004] 2 Cr App R (s) 52 at par [27] and [47]. I note that these paragraphs are omitted from the published report though quoted in Cesan v Director of Public Prosecutions; Mas Ravadavia v Director of Public Prosecutions, supra, at 409.
That was a criminal trial. The position may be different in a civil proceeding where, especially in a long case, the judge will almost inevitably have to read and rely on the transcript. The period of sleeping and the time when it occurred may also be relevant.
Nevertheless, those issues are not for consideration now. There is an obvious unsatisfactoriness in a trial judge having to decide whether he or she has fallen asleep. It is much easier if all parties agree on the position or there is some objective fact such as snoring (see Cesan v DPP, supra) or where the judge’s associate awakens the judge by touching him or her and offering a glass of water, see Stathooles v Townsville Demolitions Pty Ltd (ACN 010 490 123) & Ors (Queensland Court of Appeal, 284/1995, Macrossan CJ, Pincus JA and White J, 3 Sept 1995, unreported) at [6].
It is much more difficult where the principle indicium is that the judge has his or her eyes shut. This can be quite ambiguous: R v Grant [1964] SASR 331 at 338. Even other aspects of demeanour can be misconstrued: R v Langham and Langham [1972] Crim LR 457. Thus it is necessary for me to determine disputed facts, in effect, about my own conduct. This is clearly a task with great problems. Mr Endresz sought that I refer the issue to another judge. That cannot occur. This is perhaps why such matters usually arise in appeals rather than the first instance before the trial judge. Indeed, I can find no case which is of direct assistance in how to proceed.
There are some analogous applications. For example, applications for disqualification of a judge for bias are required to be dealt with by the judge assigned to the case: Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 294-5.
Similarly, a judge before whom a contempt in the face of the court is alleged to have been committed not only makes the charge, but hears the case: Coward v Stapleton (1953) 90 CLR 573 at 580.
The difficulty of this can be easily seen. In relation to applications to disqualify for bias, Samuels JA has commented in Barton v Walker; Barton v O’Brien [1979] 2 NSWLR 740 at 749 and I quote:
The fundamental conceptual difficulty, granted the possibility of the judge changing his mind remains unresolved. The further difficulty encountered is that of the judge acting as a judge in his own cause. How does the judge deal with assertions of fact which he knows to be incorrect? They might not be challenged by the party not moving. How can the judge himself introduce evidence, upon which he might have to rule, if its admissibility is challenged, and which he might ultimately have to evaluate?
Similarly, in relation to contempt, the United Kingdom Court of Appeal has commented as to the desirability of a jury trial where there is no pressing need for promptitude and there is an issue about the intention of the defendants: Re the Attorney-General’s Application. Attorney-General v Butterworth [1963] 1 QB 696 at 728. Nevertheless, I must address this task with all the fortitude I can muster and endeavour in doing so to ensure that fairness is delivered to all parties.

The Evidence

Mr Endresz has in his affidavit sought simply to assert conclusions of my sleeping, which he has forcefully put. He has not sought to particularise the demeanour which he might have observed and from which to draw those conclusions. This is also clear in his notes attached to his affidavit where there are four references to me being asleep, but none specify the indicia which he uses to draw his conclusion. This, of course, makes it very difficult to evaluate the evidence. If it were merely closed eyes it is clear to me that this is certainly an insufficient ground on which the claim could be founded. Nothing else has been suggested.
Certainly if I had been snoring that is highly likely to have been observed by other parties. Also it would be almost unambiguously evidence of sleeping. In his oral evidence and in his submissions, Mr Endresz was forceful and definite, much more so than the tentativeness which one would have thought he fairly expressed in his first comment in court, as quoted above, acknowledging that he could not be certain,. The way in which Mr Endresz originally raised the issue was also of concern, where he was clearly “storing up the issue” as an appeal point, when it should have been raised earlier.
I can also take into account the incident on 23 September 2008. There, I was clearly aware of the issue of sleeping, and I closed my eyes, but was not asleep. Mr Endresz claimed that I was asleep; this assists me to assess his evidence as based on a demeanour which is at best ambiguous. His continued assertion, for example, by seeking to rely on Mr Liston’s notes of me being asleep on that occasion when I was able to address it relatively freshly, though not as contemporaneously as I had requested him to respond, lent support to the view that Mr Endresz may well have been mistaken in the conclusions he drew.
One issue of particularity on which Mr Endresz relied was the fact that where he allegedly woke me with his objection, see par 7 of his affidavit, I did not respond to the objection immediately. This, he said, was evidence of the fact that I had been awakened from being asleep. This is, in fact, a submission that came at the heel of the hunt. The first line of attack was that it proved I had been awoken because the question was not in fact a question, but a statement. It is true that what Mr Slattery had stated was grammatically in the form of a statement. It was in the form, “I suggest to you” without what is sometimes used to make it interrogative, namely the addition of something like, “What do you say to that?”
In my view, the locution used by Mr Slattery is almost universally accepted as a question in cross-examination. Indeed, Mr Cain understood it so and, after I allowed it, proceeded to answer it without any difficulty. Perhaps sensing that there was no substance in that point, as there was not, Mr Endresz moved on to the other point I have mentioned above, namely the apparent lack of speed in responding to the objection. It first has to be said that the objection was one I had rejected before on a number of occasions. Secondly, it was proper to hear the question in full before responding.
While the preamble, “If you were an honest person” may have been the subject of the objection, it could only properly be considered in the context of the whole question. The rest of the question may have, of itself, or in combination with the preamble, been objectionable. In any event, there were many occasions when I have made no or no immediate response to an objection. See for example in the transcript at p 2,590, ll 19 to 35, p 2,852, ll 5 to 15, p 2,871, ll 29 to 37 and p 2,495, l 15.
Mr Slattery suggested in submissions that Mr Endresz had behaved improperly using an artifice in the objection when raising it with no merit. While that is an interpretation of what occurred, it is not one I adopt. In Stathooles v Townsville Demolitions Pty Ltd (ACN 010 490 123) & Ors, supra, Pincus JA referred to the challenging nature of actions counsel must take in acting for their clients in relation to bias applications, as an analogy. His Honour said at pages 10 and 11:
If there is a deficiency relating to the conduct of a trial, the practice is that counsel will raise the point at trial, particularly if doing so may lead to some action on the part of the judge which corrects the position. A common example of this occurring is that counsel will draw the judge’s attention to some personal connection the judge is known to have with the parties in a case, of such a kind as perhaps to disqualify him or her. It has been known to happen that taking that step arouses judicial irritation, but it is important that the prospect of that reaction not deter counsel from raising any proper objection with the judge, at the trial.
That such steps are a challenge to experienced counsel means they can be even more daunting to litigants in person. I can completely understand why Mr Endresz might behave as he did on that occasion. I did not draw any adverse inference from that. In the absence of other evidence, support from other witnesses or other parties, the case is not a strong one. On the other hand, Mr Holcombe’s affidavit was detailed and addressed the issues of the primary facts and his observations. He explained what his motivation was for his observations, how he could make them and their context.
In cross-examination, he was not shaken, but was unafraid to make admissions contrary to interest such as that he was concentrating on his computer about 25% of the time and that he did not have a clear view of the bench all of that time. Mr Holcombe gave every impression of trying to be accurate and thinking carefully about the answers to questions put to him. I formed the view that he was careful to be truthful, had given thought to what he could say and was doing his best to assist the court.
While inevitably his observations were general, he did, on at least one occasion, directly contradict what Mr Endresz had to say. This was because he had a very personal interest in the point being addressed in cross-examination. I was therefore able to assess the competing versions on at least one area. In this, I preferred the version given by Mr Holcombe.
Mr Holcombe expressed the view, based on the facts deposed to in his affidavit, that I was not sleeping during the proceedings. He could not, of course, say that this was during every minute of the proceedings, but his reasoning for his opinion was sound and certainly permitted that inference to be drawn.
On the balance of probabilities, and bearing in mind that this is a serious matter, the fairness of the trial may be at issue, and so applying the principles in Briginshaw v Briginshaw (1938) 60 CLR 336, I have formed the opinion that I should accept Mr Holcombe’s evidence in preference to that of Mr Endresz. I do not believe, however, that Mr Endresz was lying and I have not taken that position. He clearly was strong in his opinion and expressed it forcefully.

Conclusion

As I have said before, this is an unedifying process and I find the circumstances acutely challenging. Nevertheless, doing the best I can, I have come to the conclusion that when Mr Endresz alleges that I was asleep, he has been mistaken. The fairness of the trial has not been compromised by me, the trial judge, being asleep. Accordingly, the application is dismissed.

Other Evidence

Mr Slattery submitted that, as in a bias application or contempt of court hearing, I am entitled to draw on my own knowledge and experience of relevant matters. That may well be right but I have what I think is an understandable reluctance to do so or at least to rely too heavily on it over the other evidence adduced in the ordinary way. I have accordingly tried to decide the issue on this basis.
I have, however, been able to reinforce the view I have already come to by the following: (1) I have no personal recollection of falling asleep; (2) I have inspected my notebook and there is nothing in it such as those squiggles that are often made when one falls asleep while writing that might suggest I have fallen asleep; and (3) I have listened to the court recording of one of the periods when Mr Endresz says I was asleep; the passage I heard was familiar to me as though I was hearing it again and I distinctly heard what appeared to be me coughing as I had been at around that time.

Final Comments

Mr Endresz fairly referred me again to the passage I quoted from Pincus JA above and sought an assurance that the making of the application would not prejudice his right to a fair trial. For an experienced counsel, such an assurance is unnecessary. For a litigant in person, I completely understand why it is sought. I unreservedly assure Mr Endresz, and indeed all parties, that I will do my best to comply with my judicial oath and certainly will not prejudice the fair and just consideration of their cases, including that of Mr Endresz, in the consideration of these proceedings.

This unhappy incident reinforces the need for judicial officers to be very mindful of their demeanour in hearings, which can be quite easily misconstrued. I will certainly try to ensure this. I also emphasise that such issues must be identified immediately if anyone in the court forms the view that a judge is inattentive, such as by sleeping, so that relevant remedial action, such as having the evidence, submission or other material repeated if necessary.

The application is dismissed with costs.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 22 October 2008

Counsels for the Plaintiff:  Mr M Slattery QC and Mr J Hogan-Doran
Solicitor for the Plaintiff:  Australian Government Solicitor
Fourth Defendant  Self represented
Fifth Defendant  Self represented
Seventh Defendant:  Self represented
Eighth Defendant:  Self represented
Ninth Defendant:  Self represented
Counsel for the First, Sixth, Fifteenth
and Twenty-First Defendants:  Mr P Cain
Counsel for the Twentieth Defendant
and Third Party:  Mr A Endresz
Counsel for the 27th Defendant:  Mr N Hutley QC and Mr J Giles
Solicitors for the 27th Defendant:                  Snedden Hall & Gallop
Date of hearing:  25 September 2008
Date of judgment:  26 September 2008

[2008] ACTSC 112

4 December 2008