Trustees of the Christian Brothers v Cardone
[1995] FCA 407
•20 JUNE 1995
C A T C H W O R D S
PRACTICE AND PROCEDURE - whether trial judge should have disqualified himself on grounds of reasonable apprehension of bias
APPEAL - liability for negligence - evidence to support trial judge's findings of negligence and no contributory negligence
DAMAGES - general damages - insufficiency thereof - substituted award
Dickason v Edwards (1910) 10 CLR 243
Vakauta v Kelly (1989) 167 CLR 568
S & M Repairs v Caltex Oil (1988) 12 NSWLR 358
Limbo v Little (1989) 65 NTR 19
David Syme & Co v Swinburne (1909) 10 CLR 43
Re The Queen and his Honour Judge Leckie; Ex parte Felman (1977) 52 ALJR 155
Re JRL; Ex parte CJL (1986) 161 CLR 342
Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No. 4] (1986) 6 NSWLR 674
Galea v Galea (1988) 19 NSWLR 268
Re Keely J; Ex parte Ansett Transport Industries (Operations) Pty Ltd (1990) 64 ALJR 495
Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (No. 9), unreported
Livesey v NSW Bar Association (1983) 151 CLR 288
Webb v The Queen (1994) 181 CLR 41
Clarke v Ryan (1960) 103 CLR 486
Paul v Rendell (1981) 34 ALR 569
The Queen v The Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546
Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78
Reg v Rand (1865-66) LR 1 QB 230
Reg v Meyer (1875) 1 QB 173
R v Sunderland Justices [1901] 2 KB 357
Reg v Barnsley Licensing Justices [1960] 2 QB 167
Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577
Reg v The Small Claims Tribunal [1975] VR 831
Reg v Industrial Appeals Court; Ex parte Maher [1978] VR 126
R v Magistrates Court at Lilydale; Ex parte Ciccone [1973] VR 122
ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
TRUSTEES OF THE CHRISTIAN BROTHERS v. ENZO CARDONE
No. ACT G65 of 1994
Coram: Gallop, Wilcox and Ryan JJ.
Date: 20 June 1995
Place: Canberra.
IN THE FEDERAL COURT OF AUSTRALIA)
)
AUSTRALIAN CAPITAL TERRITORY )
) No. ACT G65 of 1994
DISTRICT REGISTRY )
)
GENERAL DIVISION )
ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:TRUSTEES OF THE CHRISTIAN BROTHERS
Appellant
AND:ENZO CARDONE
Respondent
AND:ENZO CARDONE
Cross-Appellant
AND:TRUSTEES OF THE CHRISTIAN BROTHERS
Cross-Respondent
MINUTES OF ORDER
JUDGES MAKING ORDER: Gallop, Wilcox and Ryan JJ.
DATE OF ORDER: 20 June 1995.
WHERE MADE: Canberra.
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The cross-appeal be allowed so as to increase the award of general damages to $50,000.
3. There be judgment for the respondent in the sum of $283,488.34.
2.
4. The appellant pay the respondent’s costs of the appeal and cross-appeal.
Note: Settlement and entyr of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA)
)
AUSTRALIAN CAPITAL TERRITORY )
) No. ACT G65 of 1994
DISTRICT REGISTRY )
)
GENERAL DIVISION )
ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:TRUSTEES OF THE CHRISTIAN BROTHERS
Appellant
AND:ENZO CARDONE
Respondent
AND:ENZO CARDONE
Cross-Appellant
AND:TRUSTEES OF THE CHRISTIAN BROTHERS
Cross-Respondent
CORAM: Gallop, Wilcox and Ryan JJ.
DATE: 20 June 1995
PLACE: Canberra
REASONS FOR JUDGMENT
GALLOP J: This is an appeal against an award of damages by Higgins J. in the Supreme Court of the Australian Capital Territory given in favour of the respondent in this appeal on 30 August 1994.
The plaintiff's cause of action was for negligence arising out of the breach of the duty of care owed by the
present appellant to the respondent in respect of the safety of the school premises at St Edmunds College, Canberra. The breaches of the duty of care related to the presence of a raised metal bracket in the vicinity of doors having a glass panel in the opening part of the doors against which the respondent fell when he was a student in Year 11 at the said College.
The first ground of appeal was that the trial judge should have disqualified himself on the grounds of apprehended bias.
At the commencement of the hearing of the action before the trial judge, counsel for the defendant made application for the trial judge to disqualify himself from the conduct of the trial. The grounds stated were that the trial judge was a former pupil of the school and, more importantly, was, at the date of hearing, the Chairman of the School Board. In expounding the submission, counsel for the present appellant told the trial judge that issues of credit might arise in the conduct of the hearing between the respondent and the teachers at the school.
The application was opposed by the present respondent, through his counsel, on the ground that the legal advisers of the appellant would have received instructions before the listing hearing if there was a problem about the trial judge hearing the action. The response to that was that the solicitors on the record, being a local firm, were acting as agents for a Sydney firm of solicitors who had the conduct of the matter for the appellant and until shortly before the action came on for hearing they had no knowledge that his Honour had been a pupil at the school and was then the occupant of the position of Chairman of the School Board.
There was some criticism of that contention by his Honour. He thought that a partner in the local firm of solicitors who were the solicitors on the record as agents for Sydney principals would have known of his Honour's position.
Following a short adjournment, his Honour confirmed, if he had not done so before, that he went to the school and that he was at the time of trial the Chairman of the board of St Edmunds College. He did not make any further disclosures at that stage.
There was some discussion about the witnesses to be called and, on three of those witnesses being identified, his Honour said that he knew each of them. Indeed, he said he knew each of them well, that all of them had taught some of his boys and that one of them, Mrs Ding, was also a member of the Board.
There was some discussion about the possibility that a credit issue would arise between the witness Richard Hall and the plaintiff in the action (the present respondent). In fact, on the hearing of the action, a substantial issue arose on the evidence of those two witnesses and that issue was ultimately determined by the trial judge.
His Honour went on to observe, in an exchange with counsel for the present appellant, that the Trustees of the Christian Brothers (the present appellant) were well aware of his position as Chairman of the School Board. His Honour then said:
"the solicitors for the defendant [the present appellant] ... knew or should have known of the situation when the matter was listed. They chose to make no complaint about it, notwithstanding that - well, the plaintiff would have been the one expected to make a complaint about it I suppose, but the plaintiff chose to make no complaint and eschews any complaint today. It seems to me even if an application for an adjournment were granted, it would have to be on terms that the defendant pay the plaintiff's costs."
After a short adjournment, counsel for the respondent informed his Honour that the parties were in conflict about what was said to the witness Hall by the respondent and whether the respondent was running at the time of the accident. He went on to say that, notwithstanding that conflict, the parties did not ask his Honour to disqualify himself and that counsel for the appellant was prepared to withdraw his objection to his Honour presiding. This elicited the following exchange (Mr Kennedy being counsel for the present appellant):
"MR KENNEDY: If your Honour feels, in the circumstances, able to hear the case then we are happy to go on.
HIS HONOUR: Well, unless one party or the other, in those circumstances, has some sort of an objection - - -
MR KENNEDY: No, if your Honour feels that your Honour can determine the case and ought to determine the case then we are happy with your Honour's decision in that regard."
On the hearing of this appeal, it was submitted on behalf of the appellant that his Honour's decision not to disqualify himself was, in the circumstances, wrong and that the matter should be remitted to the Supreme Court of the Australian Capital Territory for rehearing before another Judge of that Court.
It was submitted that in the circumstances his Honour ought to have disqualified himself on the basis of interest, relying upon Dickason v Edwards (1910) 10 CLR 243 at 259.
It was further submitted that his Honour should have determined the application for disqualification before embarking upon any consideration of where the costs should lie in the event of there being an adjournment consequent upon such disqualification. His Honour clearly indicated an intention to make payment of costs by the appellant the price for such an adjournment.
The last submission was that, far from waiving the right to apply for his Honour's disqualification, counsel for the respondent left it to his Honour to decide for himself whether he ought in the circumstances to disqualify himself.
It was submitted on behalf of the respondent on the hearing of this appeal that counsel for the appellant had in effect waived any objection to his Honour presiding on the ground of bias.
There is no doubt that the right to object on the ground of bias may be waived (Vakauta v Kelly (1989) 167 CLR 568 at 572 per Brennan, Deane and Gaudron JJ; at 577 per Dawson J. and at 587 per Toohey J.).
The objection on the ground of bias must be taken promptly. A party cannot stand by until the contents of the final judgment are known. By standing by such a party has waived the right subsequently to object. The reason why that is so is obvious. If clear objection has been taken, the judge may be able to correct the wrong impression of bias or alternatively may refrain from further hearing.
The objection in the present case was obviously made at the earliest possible moment in the trial. It was never waived. His Honour should have revealed the full facts about his association with St Edmunds College. The observations of
Kirby P. in S & M Repairs v Caltex Oil (1988) 12 NSWLR 358 at 369 are entirely apt and provide useful guidance:
"In order to ensure the maintenance of high standards to preserve the appearance of the neutrality and impartiality of the judges and, as well, to avoid damage to the general reputation of the judiciary that may attend unseemly public questioning of a judge or challenge to his or her appearance of impartiality, a number of useful conventions have developed. Certainly, they are regularly followed in the practice of the Court of Appeal. If a judge prefers, because of some past association, not to sit in cases involving particular parties for fear of actual or imputed bias, he or she will so indicate and, save for necessity, will not sit in such cases.
If a judge has had any connection, even indirect, with litigation that comes before the court, he or she will so indicate when the list of sitting arrangements is distributed. A substitution will then be arranged. If the connection is not noted until the judge is actually sitting, cases have arisen where even in mid hearing, the court has been reconstituted, usually on the insistence of the judge concerned. Even minor connections with the parties, with their interests or with issues raised in the litigation are usually, in my experience, announced. Thus where a judge holds appointment as a university chancellor, and a case comes before the court involving a college or another university, it has been the practice in the Court of Appeal for the judges concerned to announce in public and at the beginning of proceedings, the judge's appointment in order to give the parties the opportunity to make submissions, which the judge can then weigh. The stringency of the practice is well described by Professor Simon Shetreet in Judges on Trial (1976) at 305:
'... When the circumstances of the case in the judge's opinion do not justify his disqualification, he will always disclose the matter giving rise to the difficulties and require counsel to take instructions from the solicitors and their client to see whether they have any objection to his trying the case. The judge will tell counsel that if there is an objection they should inform him without disclosing which side objected. However, when the interest is more than minimal or when his association with a party, witness or counsel might give rise to the appearance of impropriety, of unfairness or of bias, he will disqualify himself and not leave the matter dependent upon whether or not the parties will raise objections.'
The very practice of prior announcement is a protection of the manifest integrity of the judicial process. It is also a defence against later applications for disqualification which necessarily present the problems of efficiency and cost ..."
Those observations of Kirby P. were followed by the Court of Appeal of the Supreme Court of the Northern Territory in Limbo v Little (1989) 65 NTR 19. The question which the Court of Appeal had to determine in that case was "whether a Judge or Magistrate has an obligation to answer questions of a litigant concerning matters which may disqualify him if the litigant knew about them, for example military, defence or intelligent connections". Rice J. said (at p.22):
'In my judgment, the answer is simply, "no". That is not to say, however, that a judge or magistrate is entitled to sit back where the circumstances might possibly indicate that a perception of bias is present, and not make appropriate disclosure in order to remove any suggestion of bias. It is the fundamental duty of a judge or magistrate to do so, consistent with the oath of office which is based on the concept of judicial integrity. It requires no reaffirmation since the complete absence of bias is inherent in the judicial role. In my opinion, it would be an affront to judicial integrity for a judge or magistrate to be subjected to any obligation to answer questions of a litigant. This proposition is so fundamental that no authority is needed to support it.'
Martin J. (as he then was) said at p.27:
'Usually, the facts upon which it might be thought a reasonable apprehension of bias could arise, are known to the litigants or at least one of them. Sometimes the judge, as a matter of judicial integrity, makes facts known to the parties which he considers ought to be disclosed, so that the parties or either of them can consider whether a reasonable apprehension of bias could arise. Even in such a case it is necessary that an application be made that the judge disqualify himself, and it is a matter for the exercise of the judge's discretion as to whether he should accede to the application. the facts which a judge might disclose are generally facts which are known to some members of the public, not necessarily to the parties or their advisers, but it is for the judge to decide for himself whether a disclosure should be made, not for a litigant to venture upon a "fishing expedition" with a view to ascertaining whether there is something personal to the judge, and not known to him, which could found an application that the judge disqualify himself. Judges are capable of putting aside personal predilections arising from life's experiences. We all, I suspect, have views, opinions and attitudes moulded by a variety of factors. Rigorous training in the discipline of the law and in particular the requirement of objectivity, together with the public insistence upon judicial integrity, mean that unless some material matter is raised by a litigant, or voluntarily disclosed by the judge, it is accepted that there can be no suggestion of reasonable apprehension of bias. Edmund Burke spoke of "the cold neutrality of an impartial judge". That is what is expected. If impartiality is lacking, or could be fairly thought to be lacking, it may well become evident sooner or later, but it is not for the litigant to pry into the judge's background. It is for the judge to disclose a fact if it seems to him that it may be thought to have a bearing upon his neutrality. An extensive and, with respect, most useful guide to the principles applicable to judicial disqualification is to be found in the reasons for decision of Kirby P in S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at 367-73.'
Instead of fully disclosing the length and nature of his association with the school and any other circumstances touching upon an impression of bias by a reasonable and intelligent lay observer, his Honour embarked upon possibly predictable credibility issues and the sanction of an order for costs. The parties were never told all the relevant matters which could have given rise to an appearance of bias nor given an opportunity for an examination of those facts in order that suspicion (I prefer apprehension) be wiped away (David Syme & Co v Swinburne (1909) 10 CLR 43 per Isaacs J. at p.47).
The applicable legal principles
There have been many recent decisions of the High Court of Australia and other superior courts concerning the principles to be applied in cases of imputed judicial bias. In view of the fact that there was very little oral or written argument before this Court on the principles applicable to this case, it is necessary to restate those principles.
On the one hand there are the repeated assertions of the courts that:
(a) Judges by their training and experience are able to bring a detached mind to the task in hand: see Re The Queen and his Honour Judge Leckie; Ex parte Felman (1977) 52 ALJR 155; 160;
(b) Judges should not too readily accede to applications for disqualification whereby parties may effectively influence the choice of a judge in their cause: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352;
(c) Judges should resist being driven from their courts by the conduct or assertion of parties: Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No. 4] (1986) 6 NSWLR 674; 689;
(d) Judges should not be disqualified because of the vigour with which they conduct proceedings, some degree of judicial intervention being necessary for the fair disclosure of their provisional views: Galea v Galea (1988) 19 NSWLR 268, 278f; Re Keely J; Ex parte Ansett Transport Industries (Operations) Pty Ltd (1990) 64 ALJR 495; and
(e) Judges should perform the duties of their office which, of their nature, will often be painful and unrewarding. They should do so with courage and decisiveness, avoiding the relinquishment of such duties which will necessarily then fall to another judicial officer for whom the task may be no more congenial: Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (No. 9), unreported.
On the other hand, a series of recent decisions of the High Court has stressed the very high standards of manifest neutrality and impartiality established by that Court for observance by every judicial officer in the courts of Australia. The common thread which has run through the High Court's decisions has reflected the high importance attached by the High Court to the manifest observance of judicial impartiality in this country. This can be seen, for example, in R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Livesey v New South Wales Bar Association (1983) 151 CLR 288; Re JRL; Ex parte CJL (1986) 161 CLR 342; Vakauta v Kelly (1989) 167 CLR 568; Grassby v The Queen (1989) 168 CLR 1; and Laws v Australian Broadcasting Tribunal (1990) 64 ALJR 412, 419.
The test as formulated by the High Court in determining whether a judicial officer ("a judge") is disqualified by reason of the appearance of bias as distinct from proved actual bias is whether in all the circumstances a fair minded, lay observer with knowledge of the material objective facts "might entertain a reasonable apprehension that [the judge] might not bring an impartial and unprejudiced mind to the resolution of the question" in issue. The quoted words in that statement of the test are taken from the judgment of the High Court in Livesey v. New South Wales Bar Association, supra, at pp.293-4.
The most recent case I have been able to find in which the principles were restated is Webb v The Queen (1994) 181 CLR 41 at pp.67-68. It will be remembered that that was a case arising out of a murder trial in the Supreme Court of South Australia. On the morning of the day the judge commenced his summing up, one of the jurors gave a bunch of flowers to a person at the court house with a request that it be given to the deceased's mother. The judge refused an application for the jury to be discharged. The High Court (Mason CJ, Toohey and McHugh JJ) upheld his decision (Brennan and Deane JJ dissenting), holding that in the circumstances a fair minded observer would not have had an apprehension of lack of impartiality on the part of the juror and the judge had properly directed that the trial should proceed.
In his dissenting judgment, Deane J. at p.68, after stating the principles from Livesey set out above, said that the test directly reflects its rationale, namely, that it is
of fundamental importance that the parties to litigation and the general public have full confidence in the integrity, including the impartiality, of those entrusted with the administration of justice. He further said that the test is an objective one and the standard to be observed in its application is that of a hypothetical, fair minded and well informed lay observer (see the comprehensive list of authorities cited by his Honour in support of those observations).
Later at p.74 Deane J. classified the categories covered by the doctrine of disqualification by reason of the appearance of bias into four distinct, though sometimes overlapping, main categories. He said:
"The first is disqualification by interest, that is to say cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first [eg, a case where a dependent spouse or child has a direct pecuniary interest in the proceedings] and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third [eg, a case where a judge is disqualified by reason of having heard some earlier case: see, eg, Livesey v NSW Bar Association (1983), 151 CLR 288; Australian National Industries Ltd v Spedley Securities Ltd (1992) 26 NSWLR 411] and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias."
Applying those principles, it is in my opinion clear that his Honour should have disqualified himself. His association with the school was not minimal and was current. There would need to have been very clear and unequivocal waiver by the appellant of its right to seek his Honour's disqualification to dispel the apprehension that he might not bring an impartial and unprejudiced mind to the trial of the action.
In my opinion, the judgment appealed from should be set aside and the proceedings remitted to the Supreme Court of the Australian Capital Territory for retrial before another Judge of that Court.
That being so, it is unnecessary to consider the appeal on the grounds of liability, contributory negligence and damages, and the cross-appeal against the award for general damages, but it may be useful if I express my conclusions upon those grounds notwithstanding that it is not strictly necessary to do so.
Liability
The respondent was injured when proceeding from the yard of the school into the doorway of the cafeteria when he tripped on a structure which was a combination boot scraper and doorstop. The structure was in the open and not obscured from the respondent's view. He was aware that it was there. He caught his foot on the structure, then struck his arm as he fell against the glass in the door to the cafeteria, which was a few feet away from the structure.
The major issue was whether or not the respondent was running at the time at the time he caught his foot. The appellant contended that the trial judge was wrong in his finding that at the time he tripped the respondent was more probably than not travelling at a pace considerably less than a run but more than a normal walk. His Honour found that the present appellant had failed to establish that the respondent was running at the relevant time.
It was submitted on behalf of the appellant that his Honour had made unauthorised use of an expert witness in reaching his ultimate finding of fact as set out above. There is some force in that criticism because an expression of opinion by the expert that the respondent must in all the circumstances have been running was not evidence of an expert kind within the meaning of Clarke v Ryan (1960) 103 CLR 486. Nevertheless, there was evidence to support the trial judge's finding of fact and this Court would not be justified in interfering with his ultimate conclusion of negligence on the part of the appellant based upon those findings of fact.
Contributory negligence
For the same reason the attack upon his Honour's finding of no contributory negligence must fail.
Damages
His Honour assessed the respondent's past and future wage loss on the basis that the respondent would have become a carpenter but for his injury. It was submitted that his Honour failed to take account of the lack of evidence to establish the likelihood of the respondent becoming a carpenter and failed to take account of the difficulties he would have had in qualifying as a carpenter having regard to his proved academic limitations and apparent lack of motivation.
Reviewing the whole of the evidence at the trial, it is true that there was not a lot of evidence on which to base findings of past and future economic loss, but his Honour had to assess those components on the material before him and there was some material to support his ultimate assessments.
It is well to bear in mind the statements of Lord Diplock delivering the judgment of the Privy Council in Paul v Rendell (1981) 34 ALR 569 at 571:
"The assessment of damages in actions for personal injuries is not a science. A judgment as to what constitutes proper compensation in money terms for pain, suffering or deprivation of amenities of life, can only be intuitive, and the assessment of future economic loss involves a double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured."
In my opinion, his Honour's awards of damages for past and future wage loss were supported by the evidence and within the bounds of a sound exercise of the damages discretion.
The matter which gives rise to a more difficult question is his Honour's award for general damages. By his cross-appeal the respondent contends that the award of $30,000 for general damages was "wholly erroneous and beyond the range of a sound exercise of discretion". His Honour made the following findings of fact.
The accident happened on 19 June 1987 when the respondent was a Year 11 student. Having found that the respondent's right forearm hit the glass panel which shattered, badly lacerating his right arm and elbow, his Honour said that the respondent was bleeding badly and in shock. He was taken to or went to the school office where a tornique was applied. He was then taken to Woden Valley Hospital. Eight stitches were inserted into the wound in his wrist and 22 stitches into the lacerated elbow area. Almost immediately the respondent noticed that there was strong pain and lack of feeling in the whole of his right thumb and index finger. There was a partial loss of feeling in part of his ring finger and the palm of his right hand.
In early 1987 symptoms of pain and numbness having continued, the respondent was referred to Dr Nadana Chandran, a specialist neuro-surgeon. By 18 February 1988 the respondent was experiencing difficulty in carrying out manual activities, particularly with writing. He was right-handed. Dr Chandran formed the view that an operation was necessary to attempt to rejoin the nerve. There was also a neuroma or tumour growing on the injury site, apparently resulting from the original laceration and suture. It was very sensitive, causing a sensation like an electric shock if bumped. Dr Chandran removed the neuroma and attempted to rejoin the severed nerve bundles. The forearm was then immobilised by a plaster slab. Dr Chandran felt that recovery was not likely to be evident for several months. He did note that the nerve injury was much more extensive than he had expected it to be.
When Dr Chandran reviewed the respondent on 22 August 1988 there had been some recovery in muscle power and bulk in the right thumb. However, there was still loss of sensation in the area of the index finger and thumb. There was hypersensitivity in the palm and reformation of the neuroma over the scar site. Thus, while some nerve function had been restored, the function of the hand itself had not improved. The neuroma was growing. The respondent was suffering badly from pain in the right hand and forearm if he attempted to use tools, particularly percussive tools like hammers. He could not manipulate small objects very effectively.
During 1989 the respondent had been reviewed by Dr Chandran. On 29 September 1989 he consulted Dr Owen, a consultant micro-surgeon, at the suggestion of his then general practitioner. Dr Chandran supported that suggestion as he had noted no relevant improvement following his review of the respondent. Dr Owen recommended further surgery which as duly performed on 22 January 1990 at Longeville Private Hospital in Sydney. The neuroma was excised and the severed nerve ends joined by micro sutures. When he reviewed the respondent on 4 December 1990, Dr Owen noted very little progress in the respondent's median nerve since the operation.
There was a return of function to only 43mm of the nerve into the palm The respondent had his right hand and forearm immobilised for eight weeks following the operation. In February 1990 the respondent enrolled in a course leading to an Associate Diploma in Business and Evaluation. However, his inability to write contributed to his lack of success in this course. Within a few months following the operation a further neuroma began to develop at the operation site. By the time he was reviewed by Dr Owen, that neuroma was causing the same pain as had the previous one.
In early 1991 the respondent enrolled again in a course for an Associate Diploma in Civil Engineering. He did this without being sure of what he could do or wanted to do. He conceded that his lack of motivation led to his failure in
this course. He did, however, also have some trouble coping with study by reason of the condition of his hand and wrist.
By 19 February 1991 when next reviewed by Dr Owen, there was a return of function from 42mm to 50mm from the end of his scar. This, together with the neuroma, persuaded Dr Owen that a nerve graft was indicated. A nerve graft operation was carried out by Dr Owen on 12 December 1991.
In May 1992 Dr Owen noted that 62mm return of function had been achieved. However, a neuroma had developed at the graft site and also at the operation site. In March 1993 Dr Owen found the neuroma had grown at the wrist site so as to be extremely tender. Wrist flexion caused considerable pain. The neuroma at the donor site was also extremely painful. Dr Owen offered two options to the respondent. The first was to sever and cap the relevant nerves. That would remove all feeling in the thumb, index finger, middle finger, half ring figure and at the area of the donor site. The second was to attempt a further nerve graft operation at the wrist. At that time the respondent did not choose either option. That decision was a result both of his concern as to whether there would be any real improvement, and lack of means.
His Honour concluded that but for his injury the respondent could have successfully completed a carpentry apprenticeship and probably the advanced building course. He thought the civil engineering course was probably beyond his academic capabilities. For the same reason, he was satisfied that the Business and Evaluation course was not one it was likely he would have been able successfuly to complete. His Honour said that the disability is serious one which has dramatically and adversely affected the respondent's life at a crucial stage.
Later in his reasons, his Honour said that the plaintiff had suffered a serious injury which had left him with an ongoing disability from which full recovery or even significant further recovery is unlikely.
On those findings of fact, it was submitted that given the respondent's age, his lack of academic skills, his right handedness, his past and continuing pain and disability, his inability to follow his chosen career path, and his reliance on his right dominant arm for the purpose of earning his living and enjoying his life, the award for general damages is appellably low.
In my opinion the award of $30,000 for general damages was low. Subject to any order for retrial, I would increase the award for general damages to $50,000.
I certify that this and the preceding twenty (20) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Gallop.
Dated: 20 June 1995
Associate
IN THE FEDERAL COURT OF AUSTRALIA) )
AUSTRALIAN CAPITAL TERRITORY ) ACT G65 of 1994
)
DISTRICT REGISTRY )
)
GENERAL DIVISION )
ON APPEALfrom the Honourable Mr Justice Higgins a Judge of the Supreme Court of the Australian Capital Territory
BETWEEN: TRUSTEES OF THE CHRISTIAN
BROTHERS
Appellant
AND: ENZO CARDONE
Respondent
AND: ENZO CARDONE
Cross-Appellant
AND: TRUSTEES OF THE CHRISTIAN
BROTHERS
Cross-Respondent
CORAM: GALLOP, WILCOX & RYAN JJ
PLACE: CANBERRA
DATE: 20 JUNE 1995
REASONS FOR JUDGMENT
WILCOX J: I have read in draft form the reasons for judgment of both Gallop J and Ryan J. On all matters except the question whether the learned trial Judge should have disqualified himself, I respectfully agree with Gallop J. On that issue, I agree with Ryan J and I support the orders he proposes.
My colleagues have stated the facts concerning the claim of apprehended bias and have referred to the relevant authorities. I need not repeat what they have written. Nor need I set out in full my reasons in connection with that issue. They coincide with those of Ryan J, whose statement of reasons I respectfully adopt. However, I wish to add some brief observations.
It seems that the issue of possible disqualification arose only because the solicitors on the record for the defendant were not the solicitors actually controlling the case. The solicitors on the record were Canberra solicitors. Having regard to the size of the Court, they would have realised that, in the ordinary course, there was a good chance that the case would fall to his Honour to determine. And it seems that they were aware of his Honour’s connection with the school. So it is probable that they would have mentioned the connection to the Registrar, thus ensuring that the matter would not be listed before his Honour except by his deliberate decision. If the question had been raised in this way, his Honour would probably have directed that the case be listed before another Judge; not because he was disqualified through apprehended bias but simply to avoid any possible embarrassment or other complication. But none of this happened, because the Canberra solicitors were not in control of the case. Control was left to Sydney solicitors who were apparently acting for the Trustees’ insurer and were unaware of the Judge’s connection with the school. The Judge did not become aware of the nature of the case until the appointed hearing day. It seems that no other Judge was available that day. If he had disqualified himself, it seems that the hearing would have had to be adjourned; and both parties were anxious to proceed.
I make these observations, not because they affect the relevant principles applicable to a situation of apprehended bias, but because they put them into perspective. The real defendant in the case was an insurance company, with whom his Honour had no connection whatever. Even if the real defendant had been the Trustees, his Honour would not have been disqualified through interest. But there might have been some basis for a reasonable apprehension of bias. However, when it is seen that the real defendant was an insurance company, it becomes difficult indeed to attribute to a reasonable observer an apprehension that the identity of the nominal defendant would cause the Judge to act in a biased manner. The case comes down to a question of possible embarrassment because of the Judge’s acquaintance with witnesses to be called on behalf of the defendant.
There is no general rule that a judge is disqualified from hearing a case in which a witness known to him or her will be called. If there were such a rule, it would frequently cause difficulties in a small jurisdiction such as the Australian Capital Territory. There must be many Territory residents known to all three resident Judges. On the other hand, except perhaps in an emergency situation, it is clearly undesirable for a Judge to hear a case in which a person well-known to him or her is to give important and controversial evidence, especially if the witness’ credit may be in issue. It might be difficult for the Judge to bring an open mind to the evaluation of that person’s evidence.
Between these two extremes lie countless intermediate points. The question whether a particular Judge should hear a case, having regard to the Judge’s knowledge of a potential witness, is a matter to be evaluated in the light of the whole of the circumstances. That is why it was appropriate for his Honour to respond to Mr Kennedy’s suggestion that “at the end of the day there may well be no problem” by asking the names of the expected witnesses. Because the attitude of the parties was a matter of significance, it was appropriate for him to inform counsel about the extent of his knowledge of the witnesses. Because the nature of the witnesses’ expected evidence was of major importance, it was appropriate for his Honour to encourage Mr Kennedy to take up the suggestion of Mr Stretton that he (Mr Kennedy) show Mr Stretton the proofs of evidence of the relevant witnesses; so that a judgment might be made about the extent of any conflict of evidence. It is significant that, when this was done, Mr Kennedy acquiesced in his Honour taking the case.
It is unfortunate that a question of possible disqualification or embarrassment ever arose. However, it having arisen, it seems to me that it was handled by everyone concerned in a sensible manner, leading to an outcome unlikely to cause disquiet to an objective observer. I do not think there is any basis for holding that the judgment should be set aside on the basis that his Honour should have disqualified himself.
I certify that this and the preceding four (4) pages are a true copy of the reasons for judgment of his Honour Justice Wilcox.
Associate:
Date: 20 June 1995
IN THE FEDERAL COURT OF AUSTRALIA )
)
AUSTRALIAN CAPITAL TERRITORY ) ACT G65 of 1994
)
DISTRICT REGISTRY )
)
GENERAL DIVISION )
ON APPEAL from the Honourable Mr Justice Higgins a Judge of the Supreme Court of the Australian Capital Territory
BETWEEN: TRUSTEES OF THE CHRISTIAN BROTHERS
Appellant
AND: ENZO CARDONE
Respondent
AND: ENZO CARDONE
Cross-Appellant
AND: TRUSTEES OF THE CHRISTIAN BROTHERS
Cross-Respondent
CORAM: GALLOP, WILCOX & RYAN JJ
PLACE: CANBERRA
DATE: 20 JUNE 1995
REASONS FOR JUDGMENT
RYAN J: This appeal arises from a claim for damages for physical injury made against the appellant, Trustees of the Christian Brothers ("the Trustees") which is a statutory corporation. Because I have the misfortune to differ from Gallop J on the conclusion which he has reached on the first ground of appeal, it is necessary to set out in full my reasoning in respect of that ground.
At the commencement of the trial, Counsel for the Trustees adverted to the fact that it concerned an injury sustained by the plaintiff whilst a student at St Edmund's College, Canberra ("the College") at which the learned trial judge had also been a pupil. As well, Counsel indicated, and his Honour confirmed, that the trial judge was currently Chairman of the School Board. Counsel for the Trustees then invited his Honour to disqualify himself from hearing the matter. That invitation was supported in these terms:
"It is unfortunate, your Honour, and it is not an application we make lightly but it seems to us that in those circumstances it just would not be appropriate. There may be issues of credit between the plaintiff and the teachers as to what happened and which might put your Honour in a very embarrassing position."
There was then some discussion of the actual or constructive knowledge of the Trustees' solicitors of his Honour's connection with the College. His Honour then raised the question of whether a "party who might complain of the alleged bias or interest may waive it". Mr Kennedy of Counsel for the Trustees then indicated in these terms his perception of the difficulty:
"And we just do not know what views your Honour may have formed, what things may have happened, what discussions have taken place, what view your Honour may have of teachers that will be called to give evidence in this case."
This exchange then occurred between Mr Kennedy and his Honour:
"MR KENNEDY: I mean, at the end of the day there may well be no problem, your Honour, but we just do not know.
HIS HONOUR: Well, who are the people who are to be called to give evidence then?
MR KENNEDY: Richard Hall, Lorraine Ding, John Papahatzis - they are certainly three at this stage, your Honour.
HIS HONOUR: Yes, well, I certainly know each of those three persons.
MR KENNEDY: And there may be, as I have mentioned, a credit issue arise between Mr Hall and the plaintiff. Your Honour, the defendant's position case is that the boys - the plaintiff and another boy were running, and that is what was the real cause of the
accident. The plaintiff insists that he was not running. So I suspect a real credit issue will arise."
His Honour then enquired of Mr Stretton, Counsel for the plaintiff, what his attitude was to the application for disqualification. In so doing the learned trial Judge made this further disclosure:
"And bear in mind this, Mr Stretton, I do know the three people that Mr Kennedy has mentioned quite well. All of them have taught some of my boys at St Edmunds and Mrs Ding is also a member of the Board."
After Mr Stretton persisted in his request for the matter to proceed before the Court as then constituted, his Honour observed:
"Well, Mr Kennedy, it seems to me that there are one of two options really. I have told Mr Stretton - who it seems to me his side of the record's interests are more potentially affected than yours - what my knowledge is about the persons that you have mentioned and might be called to give evidence, and you have mentioned what the issue - or what an issue is. Whether that be the issue is another question - what an issue - well, I make no comment on that. As to whether that makes a difference I do not know. But whether or not it makes a difference, which is another matter, you both know what the situation is.
It seems to me that certainly the solicitors for the defendant - and I am talking about the solicitors on the record here because we do not recognise Sydney solicitors - knew or should have known of the situation when the matter was listed. They chose to make no complaint about it, notwithstanding that - well, the plaintiff would have been the one expected to make a complaint about it I suppose, but the plaintiff chose to make no complaint and eschews any complaint today. It seems to me even if an application for an adjournment were granted, it would have to be on terms that the defendant pay the plaintiff's costs."
Following that observation, the following exchange occurred between his Honour and both Counsel:
"MR KENNEDY: Well, I hear what your Honour says in that regard and what happened at the listing hearing and I would have to oppose that, your Honour.
HIS HONOUR: Have to what?
MR KENNEDY: I would have to oppose that.
HIS HONOUR: Yes, of course.
MR KENNEDY: But I can understand how your Honour might be inclined that way and also understand of course that your Honour has a duty to hear the matter if there is no actual conflict or apprehension of a conflict or bias. But then again it seems to me, your Honour, that it may place your Honour and the staff in a very difficult situation, particularly if a credit issue is to arise.
HIS HONOUR: I think if you tell me that there is a possible issue as to credit, I have to take that seriously.
MR KENNEDY: That is the position.
HIS HONOUR: Mr Stretton, certainly if there was no issue of the kind Mr Kennedy mentioned - and I have to accept his word as counsel that there is such a possibility or at least a real risk of such being the case - I certainly feel that would cause personal embarrassment. It might not otherwise and, indeed, given your disavowal of any desire to have the matter go over, notwithstanding knowledge of the position, I feel that otherwise that an apprehension of bias or interest might be otherwise dispelled. But it does seem to me that may be a real difficulty for me and while, if this was a matter of what I would call urgency and no other judge available to hear it, that might be a case where I could put that aside and would need to put that aside, I do not suppose you could say this was a case of that kind. Would that be right?
MR STRETTON: Your Honour, I suppose it is one thing to spar at shadows, as it were, and I understand what my friend says, but if my friend were prepared to make available a proof of the evidence of the witness which there is a supposed or potential conflict - Mr Hall - then the matter may well be resolved. I mean, there may not be a conflict situation for all we know.
HIS HONOUR: Yes, I suppose that is true.
MR STRETTON: And then the whole matter would be resolved. So that it seems to me that if my learned friend were prepared to do that ---
MR KENNEDY: I am happy to do that, your Honour, it seems to me that would be the major issue. There is another subsidiary issue that may create a problem, may not, with all of the staff but we could certainly discuss that, your Honour, because we are not wishing to make this application to avoid the matter being heard, your Honour.
HIS HONOUR: No.
MR KENNEDY: We want the matter to be heard; we want it to be resolved. It just seemed to us that it was an unfortunate set of circumstances that we found ourselves in."
His Honour then invited Counsel to discuss the matter in private and on returning to the Bench had the following further discussion:
"MR STRETTON: Your Honour, having discussed the matter with my learned friend there does appear to be two areas where your Honour
might have to decide an issue of credit and notwithstanding - those two areas are what was said to a Mr Hall about whether or not the plaintiff was running at the time of the accident. That is one area and another area ---
HIS HONOUR: Well, presumably by the plaintiff?
MR STRETTON: Yes and the other area relates to whether or not there was announcements about running in the particular area made, so that they are the two potential areas of conflict. Notwithstanding that conflict, your Honour, we do not ask your Honour to disqualify yourself and on that basis, as I understand it, my friend is prepared to withdraw his objection to your Honour hearing it.
MR KENNEDY: If your Honour feels, in the circumstances, able to hear the case then we are happy to go on.
HIS HONOUR: Well, unless one party or the other, in those circumstances, has some sort of an objection ---
MR KENNEDY: No, if your Honour feels that your Honour can determine the case and ought to determine the case then we are happy with your Honour's decision in that regard.
HIS HONOUR: Well, in that case I think the case should proceed.
MR KENNEDY: If the court please."
The trial then proceeded to judgment with no further complaint about his Honour's continued participation in it.
On the hearing of the present appeal it was submitted on behalf of the appellant that his Honour's decision not to disqualify himself was in error, and that this Court should set aside his judgment and remit the matter to the Supreme Court of the Australian Capital Territory for a new trial before another Judge of that Court.
In support of that invitation, it was suggested that the learned trial Judge's association with the school at which the plaintiff sustained his injuries was of a kind to create a reasonable apprehension of bias. That concept was discussed
in Re JRL; ex parte CJL (1986) 161 CLR 342 where Mason J observed, at 352:
"It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson (1976) 136 CLR 248 and Livesey (1983) 151 CLR 288 has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgement and this must be "firmly established": Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 553-554; Watson (1976) 136 CLR at p 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 at p 14; 32 ALR 47, at pp 50-51. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."
Reg v Watson Re Lusink and Livesey v New South Wales Bar Association were all cases in which the judicial officer, or officers, had in the course of the same or related litigation indicated some view about the credibility of a witness or an issue which had not finally been determined. By contrast, the apprehension of bias to which the present appellant has pointed is of bias through interest. Nor is the apprehension that which would most readily suggest itself to the objective observer. That was recognized by his Honour when he said "it seems to me his [Mr Stretton - Counsel for the plaintiff] side of the record's interests are more potentially affected than yours" [Mr Kennedy - Counsel for the defendant].
Rather the apprehension was said to arise in this way; because his association with the College might be apprehended to bias his Honour through interest in favour of the Trustees, a countervailing apprehension was created that, in order to dispel the natural apprehension, his Honour would make some finding of fact or exercise some discretion in favour of the plaintiff to which he was not properly entitled on the merits.
It is not enough that an apprehension of bias may be said to arise in that convoluted way. It must be open to the parties or to a member of the public to entertain a reasonable apprehension in the light of all the circumstances, including statements made at the time when the judicial officer refuses to disqualify himself or herself. That the suspicion or apprehension must be reasonably, and not fancifully, entertained has been emphasised by a number of authorities. Thus in the The Queen v The Commonwealth Conciliation and Arbitration Commission; Ex Parte The Angliss Group (1969) 122 CLR 546 the High Court in a joint judgment said, at 553:
"The very nature of the office of a member of the Commission requires that he should apply his mind constantly to general questions of arbitral policy and consider the lines along which the processes of conciliation and arbitration for the prevention and settlement of industrial disputes ought to move. But allowing for considerable scope for the formation and expression of opinion upon such matters of public interest and concern, it should not be forgotten that the confidence with which the Commission and its decisions ought to be regarded and received may be undermined, as much as may confidence in the courts of law, by a suspicion of bias reasonably - and not fancifully - entertained by responsible minds.
...
Those requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it."
An indication that a reasonable apprehension of bias is only to be perceived after a strict examination of facts was recently given by the High Court in Re Polites; Ex Parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78. There a relationship of solicitor and client had subsisted two or three years earlier between a Deputy President of the Australian Industrial Relations Commission and a large corporation, in the course of which a letter of advice had been written by the erstwhile solicitor to his client. Those circumstances were held not to disqualify the Deputy President from determining, as a member of a Full Bench, proceedings to which the corporation was a party. After noting that the circumstances in 1988 which gave rise to the proceedings before the Commission were very different from those which prompted the letter of advice in 1986, Brennan, Gaudron and McHugh JJ in a joint judgment, continued at 91:
"The position in 1986, at least so far as concerned those giving the advice, was that a new employment situation was about to occur which, according to their instructions, was different from the situation generally obtaining in the industry. In that context, the advice merely detailed available negotiating options. In particular, it carried no recommendation as to the wisdom, reasonableness or appropriateness of the course of action indicated, whether generally or in the limited circumstances in which that advice was given. In the light of these considerations and the fact that appointees to the Commission will often have had a close association with parties before, or with issues to be determined by, the Commission, it would not be open to the parties or to a member of the public to entertain a reasonable apprehension that, by reason of the advice given in the quite different circumstances of 1986, Mr Deputy President Polites might not bring an impartial and unprejudiced mind to the assessment
of the prosecutors' conduct in 1988 or to the determination of appropriate wages and conditions, whether they be determined retrospectively to 1988 or otherwise, for employees in Hoyts theatres."
The strictness of the test varies, it is suggested, according to the nature of the interest. The strongest case of an interest which will disqualify an adjudicator from participating in the resolution of a matter is that of pecuniary interest. It was even suggested in Reg v Rand (1865-66) LR 1 QB 230 that such an interest will raise a conclusive presumption of bias. In that case, Blackburn J at 232 said:
"There is no doubt that any direct pecuniary interest, however small, in the subject of inquiry, does disqualify a person from acting as a judge in the matter; and if by any possibility these gentlemen, though mere trustees, could have been liable to costs, or to other pecuniary loss or gain, in consequence of their being so, we should think the question different from what it is: for that might be held an interest. But the only way in which the facts could affect their impartiality, would be that they might have a tendency to favour those for whom they were trustees; and that is an objection not in the nature of interest, but of a challenge to the favour. Wherever there is a real likelihood that the judge would, from kindred or any other cause, have a bias in favour of one of the parties, it would be very wrong in him to act; and we are not to be understood to say, that where there is a real bias of this sort this Court would not interfere; but in the present case there is no ground for doubting that the justices acted perfectly bonâ fide; and the only question is, whether in strict law, under such circumstances, the certificate of such justices is void, as it would be if they had a pecuniary interest."
Subsequently, in Reg v Meyer (1875) 1 QB 173, Blackburn J had to consider a case where a justice, who was also a member of the Enfield Board of Health, sat on the hearing of a summons against a farmer for having opened a pipe carrying sewage from the Enfield district into an open channel vested in the Parish of Edmonton. The Edmonton Local Board of Health had
threatened proceedings in nuisance against the Enfield Board. His Lordship said at 177:
"But the disqualification in the present instance is not on the ground of pecuniary interest. The question is, was Mr Meyer really substantially interested, though not in a pecuniary sense, in the proceedings as to which these informations were one step, so as to be likely to have a real bias in the matter? Now it is impossible to read Mr Harrison's affidavit, which is really and substantially uncontradicted, without seeing that Mr Meyer had such an interest. In the case of a justice having any pecuniary interest the Court was compelled to quash the conviction; but though disqualifying interest is not confined to pecuniary interest, the interest, if not pecuniary, must be substantial. In Reg v Rand Law Rep 1 QB 230, 233, we held that there was no ground for quashing the certificate of the justices. The effect of our judgment in that case was that, though pecuniary interest in the subject-matter of dispute, however small, disqualifies the justices, yet the mere possibility of bias did not ipso facto avoid the justices' decision; and we thought that, though there was a possibility of bias in that case, yet it was not real. But we expressly excepted a real bias, saying, "that we must not be understood to say, that where there is a real bias this Court would not interfere." In the present case there is such a real bias. Mr Meyer was sitting as a judge in an information arising out of a matter in which he was a litigant party with the defendant; and although he states he took no part in the conviction, yet he clearly ought not to have been on the bench; and we have no doubt that the rule must be made absolute."
Reg v Rand and Reg v Meyer were discussed in R v Sunderland Justices [1901] 2 KB 357 where the Court of Appeal quashed the granting of a licence to a brewing company. The licensing justices had also been members of the borough council of a municipal corporation to which the brewing company had promised a large sum of money upon certain conditions, one of which was that its application for a licence should succeed. It was accepted that the case was not one of pecuniary interest so as to attract the conclusive presumption of bias, but it was held that there was a real likelihood of bias in favour in the grant of the licence. Vaughan Williams LJ observed at 371:
"It appears to me that the whole law on the subject may really be found laid down in the cases of Reg v Rand LR 1 QB 230 and Reg v Meyer 1 QBD 173. When is it, according to those decisions, that a
judge or a justice is disqualified from sitting on the ground of bias? If he has personally a pecuniary interest or an interest capable of being measured pecuniarily, the law raises a conclusive presumption of bias. For reasons of policy, which hardly require explanation, it is not thought convenient, where there is such an interest, to go into the question whether he in fact acted partially or impartially. A bias is presumed from the mere fact of the existence of the interest. This is not a case of that kind. The utmost that could be said here is that the justices in question had a pecuniary interest as trustees for the ratepayers. But I do not think that upon the authorities such an interest is sufficient per se to raise the presumption of bias. Then is there any other case of an interest, besides that of a personal pecuniary interest, which creates a disqualification on the ground of bias? The judgment in Reg v Rand LR 1 QB 230 clearly shews that there is another case, namely, that in which the objection is not on the ground of pecuniary interest, but in the nature of a challenge to the favour. In such a case there is no such presumption as arises in the case of a pecuniary interest, but the question is whether there is a real likelihood, arising from circumstances such as would give rise to a challenge to the favour, that the judge or justice would have a bias."
By contrast, in Reg v Barnsley Licensing Justices [1960] 2 QB 167 a licensing justice had unsuccessfully stood for election to the board of a co-operative society which had applied for a spirits off-licence. It was held that the inference should not be drawn that he was proposing to seek election again and that he was biased towards the granting of the licence in order to enhance his prospects of success in a subsequent election. The judgment of Devlin LJ in that case emphasised, that:
"Real likelihood depends on the impression which the court gets from the circumstances in which the Justices were sitting."
That proposition was taken up by Lord Denning MR in Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577 where it was noted, at 598:
"So far as bias is concerned, it was acknowledged that there was no actual bias on the part of Mr Lannon, and no want of good faith. But it was said that there was, albeit unconscious, a real likelihood of bias. This is a matter on which the law is not altogether clear: but I start with the oft-repeated saying of Lord Hewart CJ in Rex v
Sussex Justices, Ex parte McCarthy [1924] 1 KB 256, 259: "It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done."
In Reg v Barnsley Licensing Justices, Ex parte Barnsley and District Licensed Victuallers' Association [1960] 2 QB 167, 187; [1960] 3 WLR 305; [1960] 2 All ER 703, CA, Devlin J appears to have limited that principle considerably, but I would stand by it. It brings home this point: in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless 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. And if he does sit, his decision cannot stand: see Reg v Huggins [1895] 1 QB 563; and Rex v Sunderland Justices [1901] 2 KB 357, CA, per Vaughan Williams JC Ibid 373. Nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough: see Reg v Camborne Justices, Ex parte Pearce [1955] 1 WB 41, 48-51; [1954] 3 WLR 415; [1954] 2 All ER 859, DC, and Reg v Nailsworth Licensing Justices, Ex parte Bird [1953] 1 WLR 1046; [1953] 2 All ER 652, DC. There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: "The judge was biased."
Non-pecuniary interest as a source of a reasonable apprehension of bias has been considered by the Supreme Court of Victoria in Reg v The Small Claims Tribunal [1975] VR 831 and Reg v Industrial Appeals Court; Ex parte Maher [1978] VR 126. In the former case, Gowans J reviewed the authorities at 836-837 and concluded that the concept of bias:
"has to do with the relationship of the judicial officer to the matter upon which he has to adjudicate ... although no doubt conduct during the hearing may be evidentiary of a pre-existing relationship or disposition of it may manifest some other departure from the obligation imposed by natural justice to act judicially ... . Where bias is alleged the question is whether, by reason of any such relationship, there is a real likelihood of bias, whether it be as a matter of inference from the circumstances ... or as a matter of impression in the minds of reasonable people. ... In the latter test the reaction must be that of reasonable people, not that of any perversely-minded person."
In Reg v Industrial Appeals Court (supra), the Full Court held that the Director of Industrial Relations of the Victorian Employers' Federation was disqualified by bias from sitting as an employers' representative on the Industrial Appeals Court. In the joint judgment at 139, it was noted that the second consequence of the involvement of a member of the Court in the Victorian Employers' Federation was:
"That a reasonable person would reasonably doubt whether Mr Gwyther's decision on that point was one reached in accordance with the evidence on whether he was affected in that decision by his direct personal (albeit not pecuniary) interest in the outcome of the decision."
Before an appellate court can be persuaded that a reasonable apprehension of bias has been "firmly established" as required by the authorities, it must be satisfied, upon an examination of the surrounding facts, that an objective observer would be left with an apprehension, not a conviction, that the judicial officer was predisposed, by matters extraneous to a proper adjudication, to reach a particular conclusion.
The circumstances include the nature of the interest imputed to the judicial officer. In this case, as already identified, it was an interest in being perceived to reach a result adverse to the interests of one of the parties, with which the judicial officer concededly had an association. However, the nature of that association is not to be disregarded. The Trustees were an incorporated body which apparently had vested in it the legal ownership of various sites at which numerous schools conducted by the order of the Christian Brothers are housed. The plaintiff was seeking to fix the defendant with liability for breach of duty as an occupier for an injury arising out of the static condition of the premises. Apart from a failure to warn, no allegation was implied against the staff of the College or any other person, for whom the Council of which his Honour was Chairman, might vicariously be liable. As well, an objective observer could reasonably infer that the defendant was insured against the liability which the plaintiff was seeking to enforce. Thus, the interest which his Honour might, on the defendant's case, over-zealously strive not to favour, was probably in nothing more than avoiding the cost to the College or its Council of any increase in insurance premiums for which responsibility might be passed to them and which could result from a substantial award of damages to the plaintiff.
Part of the circumstances to which the hypothetical objective observer must have regard are the submissions made on behalf of the parties, especially the defendant, when the impugned association is identified and discussed. If it can be concluded on the balance of probabilities that the party now asserting an apprehension of bias has waived the objection, that is the end of the matter. Thus in Vakauta v Kelly (1989) 167 CLR 568, Dawson J observed, at 577:
"There can, I think, be no doubt that an objection upon the ground of bias can be waived. Even where it is a question of the public apprehension of bias, the parties themselves must be competent to waive the objection. Although justice must manifestly be seen to be done, where a party, being aware of his right to object, waives that right, there will be little danger of the appearance of injustice. In the case of a criminal prosecution where the public is directly interested in the outcome, it may be different, but even in such a
case, Isaacs J in Dickason v Edwards (1910) 10 CLR 243, at p 260, was clearly of the view that a party may waive the objection. He said:
"So that the principle seems to me to be this - that, if the person whose presence is challenged can fairly be said to be biased, either by reason of his necessary interest or by reason of some pre-determination he has arrived at in the course of the case, then he ought not to act unless there is something to relieve him from these disqualifications. Even in a public prosecution a party may waive the objection. One of the strongest examples of this is the case of Wakefield Local Board of Health v West Riding and Grimsby Railway Co (1865) 6 B & S 794 [122 ER 1386]. There the Statute provided that the justices should be disinterested parties, but the words were held not necessarily to prevent waiver. A distinction has been drawn between public judicial tribunals and private judicial tribunals, but I am not satisfied that that is a sound distinction."
There is abundant authority which establishes, at all events in civil cases, that a party may waive his right to object on the ground of bias. As Hood J said in Re McCrory; Ex parte Rivett (1895) 21 VLR 3 at p 6:
"A litigant who knows (as the applicant did here) that there may be some objection to the constitution of the Bench is bound to mention it at once, in fairness both to the magistrate and to the other side, and even if the objection be a good one the litigant cannot afterwards be allowed to complain if with knowledge he remains silent ...""
See also R v Magistrates Court at Lilydale; Ex parte Ciccone [1973] VR 122 where McInerney J observed at 134:
"For myself, I doubt whether any one test should be regarded as the exclusive test. Certainly, if a case of "lying by" is made out, certiorari would be refused. Equally, if a clear case of election is made out, that is, that the applicant knowing the facts and knowing what alternative courses are open to him on those facts, intentionally chooses one rather than the other, he will be held to that choice (or election). In my view, however, an applicant for certiorari may also be refused relief if it is shown that with knowledge of the facts entitling him to object to a continuance of the legal proceeding, he has not objected but has taken an active part in the proceedings right down to judgment. This seems to have been the view taken by Hood J, in Re McCrory; Ex parte Rivett (1895), 21 VLR 3, at p 6, where his Honour said: "... this objection was not raised in the Court below, where undoubtedly it ought to have been. When such an objection is taken, if it be a real one, it can be at once yielded to. Even, however, if the judge or magistrate should know the objection to be ill-founded he would serve the interests of justice best by declining to adjudicate if there be any colour for the objection, unless, indeed, it be clearly vexatious, or unless yielding to it would work injustice to others. But if the objection be not taken there is no opportunity of yielding, and no one is so much to blame as the litigant or his lawyer who, while aware of a disqualification in the Bench, says nothing. A litigant who knows (as the applicant did here) that there may be some objection to the constitution of the Bench is bound to mention it at once, in fairness both to the magistrate and to the other side, and even if the objection be a good one the litigant cannot afterwards be allowed to complain if with knowledge he remains silent ...".
In the present case, it must be accepted that Counsel for the defendant mentioned at the outset the objection to the constitution of the Court. However, that objection was cast in terms of possible embarrassment which might arise if his Honour were called on to resolve issues of credit between the plaintiff and certain teachers at the College. Counsel for the Trustees was fully put on notice at an early stage that his client might be asked to elect whether or not to waive the objection. The three teachers whose credit might be brought into question were identified by name and his Honour acknowledged that he knew each of them quite well. After reference by his Honour to the likely liability of the Trustees for costs of an adjournment, the imposition of which Counsel for the Trustees said he would have to oppose, Counsel for the Trustees returned to the issue of the teachers' credit, saying that "it may place your Honour and the staff in a very difficult situation, particularly if a credit issue is to arise".
Thus, the Trustees' concern at this stage had been refined to one about potential embarrassment for his Honour and the witnesses from the teaching staff. Counsel for the plaintiff then suggested that the potential embarrassment might be avoided if he were shown in private the proof of evidence of one of the teachers, Mr Hall. Counsel for the Trustees acquiesced in that course. When Counsel returned to Court, although his Honour was told that two areas of conflict remained which might have to be resolved by evaluation of the
credit of the plaintiff and the teachers, Counsel for the Trustees did not demur from the suggestion by Counsel for the plaintiff that "my friend is prepared to withdraw his objection to your Honour hearing it". Instead, Counsel for the Trustees twice left it to the learned Judge to decide whether he felt able to hear the case, or could and ought to determine it. His Honour's decision on that matter could, I consider, not legitimately be criticised on any more serious ground than that it manifested what the High Court in Ex parte The Angliss Group (supra) called "a mere lack of nicety".
In the light of the earlier discussion about the need for waiver of an objection on the ground of apprehended bias, an objective observer could only conclude that the defendant had elected not to pursue its objection, but was content to proceed if the learned trial Judge felt no embarrassment in doing so. It is also significant that the application to the trial Judge to disqualify himself was not renewed when the actual conflict of evidence between the plaintiff and Mr Hall had become crystallised after both had given evidence.
Even if contrary to the view which I have just expressed, the conduct of the objecting party had been equivocal or otherwise not sufficient to amount to a conclusive waiver, it can still be weighed in the balance in determining objectively whether, after the nature of the judicial officer's interest has been fully exposed, a reasonable apprehension of bias remains. Here, the area for the operation of that apprehension had
become confined to the resolution of issues of credit between the plaintiff and one or more teachers. Counsel for the plaintiff, who was more at risk of a biased evaluation of credit, had disavowed any concern and Counsel for the Trustees had left it to his Honour to decide whether or not he might be embarrassed. In these circumstances it could no longer reasonably be said that any apprehension of bias was other than fanciful.
For these reasons, I am unable to uphold that ground of appeal which contends that the learned trial Judge should have disqualified himself at the outset of hearing the matter.
I agree with Gallop J that the evidence in this case does not warrant this Court in interfering with the learned trial Judge's findings on liability and contributory negligence. I also consider, for the reasons explained by Gallop J, that exception can only be taken to the judgment on the issue of damages at first instance, in respect of the amount attributed to general damages. I too would increase that component of the respondent's damages to $50,000.
In the result, I would dismiss the appeal and allow the cross-appeal by increasing the award of general damages to $50,000 of which $20,000 is attributable to the future and by increasing accordingly interest on the balance of general damages attributable to the past, namely $30,000. The appellant should pay the respondent's costs of the appeal and the cross-appeal.
I certify that this and the preceding eighteen (18) pages are a true copy of the reasons for judgment of his Honour Justice Ryan
Associate:
Date: 20 June 1995
APPEARANCES
Counsel for the Appellant : Mr B. Toomey QB and
Mr G. Kennedy
Solocitors for the Appellant: Crossin Barker Gosling
Counsel for the Respondent : Mr D. Wheelahan QC and
Mr G. Stretton
Solicitors for the Respondent : Abbott Tout Russell Kennedy
Date of Hearing : 10 April 1995
Date of Judgment : 20 June 1995
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