Winn v Brian Ward and Partners Pty Ltd (No.2)
[2007] FMCA 1210
•11 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WINN v BRIAN WARD & PARTNERS PTY LTD (No.2) | [2007] FMCA 1210 |
| PRACTICE AND PROCEDURE – BANKRUPTCY – Apprehended bias – case management – role of Court – whether relevant that judicial officer completed articles of clerkship with Respondent. |
Federal Magistrates Court Rules 2001
Johnson v Johnson (2000) 201 CLR 488
| Applicant: | JULENE WINN |
| Respondent: | BRIAN WARD & PARTNERS PTY LTD |
| File number: | MLG 351 of 2007 |
| Judgment of: | McInnis FM |
| Hearing date: | 11 July 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 11 July 2007 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr T. J. Scotter |
| Solicitors for the Respondent: | Brian Ward & Partners Pty Ltd |
ORDERS
The Applicant be granted leave to file the application for disqualification forwarded by facsimile transmission at 8.34 am this day.
So much of the Court Rules be dispensed with that would otherwise prevent the application being heard and determined this day.
The Application be dismissed.
The Applicant pay the Respondent's costs of the interlocutory application fixed in the sum of $1,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 351 of 2007
| JULENE WINN |
Applicant
And
| BRIAN WARD & PARTNERS PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The Court has before it an application that the Court should disqualify itself from the hearing of the application on 11 July 2007 and from giving judgment in this proceeding.
The Applicant has relied upon an application forwarded by facsimile transmission to the Court this day at 8.34 am. The parties had received a notice of listing dated 5 July 2007 as follows:
“NOTICE OF LISTING
JULENE WINN
-v-
BRIAN WARD & PARTNERS PTY LTD
Please note that this matter has been listed for JUDGMENT in the Federal Magistrates Court of Australia as follows:
BEFORE: McInnis FM
DATE: Wednesday 11 July 2007
TIME: 10 am
PLACE:305 William Street, Melbourne and by audio link to the Applicant in Queensland
TAKE NOTICE that the delivery of judgment is subject to the hearing of the interlocutory application listed at 9.30 am on 11 July 2007seeking a stay before delivery of judgment.
…
Date: 5 July 2007”
The proceedings which are the subject of the notice of listing for judgment were proceedings which were conducted by the Court on 18 June 2007. Hence, the application now before the Court, is an application which I deemed appropriate to determine before the matters referred to in the notice of listing. It is clear to me that that as a matter of procedure that this is the appropriate course to follow.
It will be evident, however, that when the notice of listing was forwarded to the parties the current application seeking disqualification of this Court had not been received. Nevertheless, as a matter of fairness to the Applicant who, although a barrister, appears self‑represented I determined at an early stage that so much of the Court rules would be dispensed with that would otherwise prevent this application being heard and determined this day.
The Applicant has relied upon an application which I have indicated was forwarded by facsimile transmission and I note is dated 10 July 2007, though transmitted this day at 8.34 am. No objection is taken by the Respondent to the Court permitting the Applicant to raise this application at this late stage. This Court regards an application to disqualify on the grounds of apprehended bias as being one of the most serious applications that can be made to any Court having regard to the relevant authorities.
The Applicant has correctly drawn the Court's attention to the High Court decision of Johnson v Johnson (2000) 201 CLR 488 (Johnson). It is clear that the test of apprehended bias, which has been referred to in numerous authorities, is whether a fair‑minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question the Judge is required to decide.
It is important to note that the High Court in Johnson at p.493 specifically stated the following:
“12.… The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
13.Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of ‘the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case’. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.”
In the present application a number of issues have been raised by the Applicant in support of the claim of an apprehension of bias. A great deal of the submissions both in the written submissions and oral submissions made by the Applicant, relate to the Applicant's perception and do not address as they should have addressed, in my view, what a lay observer might have reasonably apprehended. Nevertheless, I take the Applicant to assert that her submissions based on her subjective personal perception are to be read as submissions in support of the application alleging apprehended bias and what a fair‑minded lay observer might reasonably apprehend.
One issue that is raised by the Applicant concerns what occurred at the commencement of the proceedings. The Applicant and the Court have the advantage of a transcript from the transcription service of these proceedings. It should further be noted that the substantive application, was an application for review of a Registrar's decision. It came before this Court during a bankruptcy duty list day. That is a day when a number of matters may be listed before the Court. As it happens, there were other matters also listed before the Court that day.
The Applicant has referred to what appears to be an exchange, according to her, which occurred prior to the formal commencement of the hearing at a time which I would describe as the callover. She was concerned that remarks were then made by this Court in relation to the application. I will make due allowance for that concern, albeit that I do not have the advantage of transcript nor a clear recollection of the events that may or may not have occurred during the callover period.
What the Court does have before it, however, is the transcript of what transpired when the proceedings commenced at 11.21am on Monday, 18 June 2007. On that occasion the Applicant appeared for herself and announced to the Court that she was a barrister and the Applicant in this matter. Mr Scotter of Counsel announced his appearance for the Respondent. Some doubt has been raised by the Applicant as to whether at that stage both parties were at the bar table.
I am satisfied, based on the transcript and my own recollection, that indeed both the Applicant and Mr Scotter were at the bar table at the commencement of those proceedings that have been recorded by the transcription service. It is clear from the transcript that the Applicant then announced to the Court the following:
“It’s an application for a rehearing of an order made by a registrar, your Honour, the order made on 12 April in the setting aside of the bankruptcy notice.”
(Transcript p.2, lines 11‑13.)
Further, on the same page of the transcript, the following appears at line 41:
“I perhaps should indicate this, and I’ve just noticed who the respondent is - and no disrespect. Obviously, I don't know the parties personally but I did do my articles at that firm 30 years ago this month I think, or more, but I hope that doesn't trouble anyone. It certainly doesn't trouble me, except the fact that I'm much older now than I was.
(Transcript p.2, lines 41‑43 and p.3, lines 1-2.)
It is clear from the transcript that thereafter the matter proceeded without any objection. It is equally clear from the transcript that there were a number of breaks which occurred during the course of the hearing. At 11.42 am the matter was adjourned until 12.35 pm. It is instructive to note, consistent with the listings of this Court on that day, an extract from the transcript as follows:
“MS WINN: Thank you, your Honour.
HIS HONOUR: But I think it's probably going to take up to two hours. It's just a pity it hasn't been resolved before now. All right, I'll stand the matter down. Just wait and I'll give you an indication of when it's likely to be heard today, if at all. If I've got other matters that are more pressing, regrettably you might have to come back another day although I think because it's basically submissions, Ms Winn, I don't think I'd be too troubled by the hearing by video-link or audio-link rather than have you come down because it's not one of those cases that I need to necessarily have everybody here face-to-face, but let's see how we go and just don't leave the court vicinity, that's all. That matter is stood down.”
(Transcript p.12 lines 6-18)
It is evident from that extract that this Court had other competing and pressing matters which required a hearing.
It is equally evident from the transcript, and indeed on that particular page, that the Applicant had already alerted the Court to the fact that she had travelled from Queensland to be present at this hearing. The Court, relevantly, stated the following:
“I’ll see what’s left in the list. I mean, I think, given what you’ve said, you’ve come down from Queensland. I’ll try and accommodate you today.”
(Transcript p.12, lines 1-3.)
That is exactly what occurred. The matter was adjourned at 11.42 am and resumed at 12.35 pm. Upon resumption, the transcript reveals, the Court advised the Applicant that it was prepared to hear the application today. The following appears:
“HIS HONOUR: Yes, Ms Winn, your application for review which is listed today, I'm prepared to hear it today. What I'd like to do is to read through the material before I start. I think it's probably convenient - it's now 12.30 - if I hear the matter at 2.15. Are you comfortable with that?
MS WINN: Yes, your Honour.
HIS HONOUR: Mr Scotter, are you happy with that?
MR SCOTTER: Yes, your Honour.”
(Transcript p.12, lines 23-31.)
It is clear from the transcript that the Court then adjourned, and did so until 2.32pm.
I make reference to the chronology of events as during the course of submissions, apart from referring to the disclosure by the Court as a matter of courtesy that I had completed articles of clerkship with the Respondent firm, the Court had otherwise not received an objection and that from the time that disclosure had been made that is, around 11.25am, until the resumption of the substantive hearing at 2.32pm no objection was raised to this Court hearing the matter.
It is also evident from the transcript that the proceedings continued then until 5.18pm when the Court adjourned and reserved its decision, subject to the filing of some further affidavits, to which reference need not be made. Throughout the afternoon no objection was taken to the Court continuing to hear the matter.
The Applicant claims that no objection was taken until this day on the basis that the hearing and the proceedings caused her some upset of a kind which had the effect of delaying the raising of this issue at an earlier time. It is clear, in my view, that where an application is to be made of this kind it should be made at the earliest opportunity.
I reject the Applicant's suggestion that this application could not have been made at a time earlier than 8.34am on the day when the parties were advised that the Court would consider another application, in a case which is yet to be dealt with, and pending the outcome of that application would then, if it were minded to do so, deliver its judgment in the substantive application for review.
I further should note, having regard to the relevant authorities, and in particular the decision of the High Court in Johnson, that it is evident from the transcript that this Court, as contemplated by the High Court, does have a duty to be active in case management, it does have, as a modern Court, a responsibility to intervene in the conduct of cases and it is accepted that on occasions the intervention may indeed surprise a person who comes to Court simply expecting the Judge to remain until the moment of pronouncement of judgment as inscrutable as the Sphinx.
It is, in my view, entirely appropriate for the Court to seek to narrow the issues, as I am satisfied the transcript reveals it has done, and it is moreover appropriate for the Court to otherwise seek to determine during the course of a busy list the real issues to be determined and agitated before the Court on that day, particularly where the Court, as in this case, has sought to accommodate the Applicant who resides interstate.
The Court had disclosed at the commencement of these proceedings, upon noting the name of the Respondent, that articles of clerkship had been completed and that I had been employed by the Respondent firm. That occurred, as I indicated, approximately 30 years ago. The time period of itself is not particularly significant. In my view, had an application been made for the Court to disqualify itself simply on that basis at the earlier stage and having regard to the relevant authority to which I have referred, the application in any event on that ground would have been refused.
It is entirely inappropriate for Judges sitting in cases of this kind to disqualify themselves simply on the basis of having been employed by or having undertaken articles of clerkship with a firm of solicitors. One can think of many examples of judicial officers in this state and indeed throughout the nation who have worked until their appointment with certain firms and who throughout their appointment, having taken the appropriate oath of office, discharged their duties in accordance with that oath without fear, favour or affection or ill‑will and do so whether or not the parties and/or the litigants appear to be either firms with which they worked or indeed litigants who have as their lawyers firms with whom the judicial officers may at some stage in their career have worked.
If Judges were to disqualify themselves having regard to the principles in Johnson to which I have referred, on that ground, then, in my view, to do so would be contrary to well accepted authority. Hence, on that ground I am not satisfied that the Applicant has established any or any reasonable basis upon which the Court, having disclosed as a matter of courtesy the past history, could or should have disqualified itself, even if the application had been made, as perhaps it should have been made, on the day when the disclosure was made.
However, the Applicant has otherwise set out in some detail what she regards as an appropriate basis upon which the Court should disqualify itself on the ground of apprehension of bias. In the outline, which is incorporated in the application, and in her oral submissions the Applicant has referred to what she perceives to be unfavourable treatment. On a number of occasions the Applicant has sought to contrast the manner in which her submissions were dealt with compared with those of the Respondent. She has referred to a number of passages throughout the transcript.
In my view, it is instructive to perhaps note some, though not all, of the passages in the transcript. I should add, I have had the opportunity to now read, and indeed re‑read, the transcript. During the course of this hearing a short adjournment was provided to the Applicant in order to provide her with an opportunity to peruse the transcript and to identify those parts of the transcript which she claimed in her submission could properly be regarded as incomplete or inaccurate.
I should add that during the course of my reading of the transcript I did identify at least one area in the transcript, which I have brought to the attention of the parties, upon the resumption after the short adjournment. That error is found in line 32, page 7, where, as I have already indicated by way of direction, that error should be corrected and a substitute page provided by the transcriber. The error is one where the words "the back" should be deleted and in lieu thereof the words should be inserted "that are".
Apart from that error, I can see no further substantive or material or relevant errors arising in the transcript nor am I able to detect any omissions which might persuade the Court that the transcript is incomplete. For present purposes, however, I am prepared to accept that the Court does not have a transcript of what may have occurred in the exchange between the parties, during the course of what I describe as the callover, prior to the formal commencement of the application, which had occurred commencing 11.21am on 18 June 2007.
Having noted that error, it is also relevant to point out that during the course of submissions the Applicant had made reference to her reputation. Again, part of the reason for the matter being stood down was to enable the Applicant to locate a reference to where she may have referred to the word "reputation". The Court has undertaken a search during the break of the transcript and discovered that reference to "reputation" appears at page 80 of the transcript. I shall include in this judgment from page 80 of the transcript line 6 down to and including line 43:
“MS WINN: Your Honour, that really isn't long when a person has been ill. It really isn't long, and over a Christmas period when the person is interstate and when they have a right to reapply and to proceed down a bankruptcy, that is a very, very serious thing to do to a person that she knows is going to damage your reputation very seriously.
HIS HONOUR: Isn't that all the more reason why the person whose reputation is at stake might act with swiftness?
MS WINN: Your Honour, I knew the decision was a legal nullity.
HIS HONOUR: So you kept it to yourself for four months?
MS WINN: No, I knew it was a nullity but I didn't have an opportunity to do anything at that stage. I'm interstate.
HIS HONOUR: What's that got to do with it?
MS WINN: I was out of action until about 12 October with an injured leg. My mother was ill for six weeks after that. I stayed with her and looked after her.
HIS HONOUR: You're saying that from the bar table.
MS WINN: Then there was the Christmas period. It really didn't give - but I'm saying if that were me, I could not have done that to somebody in that short - - -
HIS HONOUR: That's not an issue.
MS WINN: Straightaway to issue a bankruptcy proceeding on an order that was so dubious - - -
HIS HONOUR: I don't know. I've seen other cases where there's been bankruptcy proceedings issued with much greater promptness than this. Four months isn't exactly a world speed record for a bankruptcy notice.”
It is evident from that extract that the Court was indeed offering some concern about the delay of the Applicant in bringing the application to the Court. It will equally be evident that the Court was being critical of the Respondent in terms of the timing of the issuing of the bankruptcy notice. In my view, that extract from the transcript, however, does not advance the Applicant's case any further. Having reviewed the transcript, it is clear to me, without reciting specific passages, that on a number of occasions the Court has made specific reference to the issues and has sought from the parties some identification of the issues properly before the Courts.
The Court clearly stated to the parties that the process is a very expensive process. The Court otherwise was concerned about making decisions which would not be meaningful in all the circumstances. It is relevant to incorporate in this judgment an extract from the transcript as follows:
“HIS HONOUR: This may be a very expensive and long process to get this corrected. There's no doubt that by consent the notice has been set aside in any event, which may or may not be as a result of any perceived defect, but I must say, having read through the material, it looks to me as if the prime reason was that consent orders were made, setting aside the default judgment upon which the notice was founded. That seems to be the thrust of it. These other issues, fascinating though they are, may not amount to much. Your costs argument, I would have thought, is one that relies upon the chronology of events, not the arguments that might have been put and won before the registrar. Do you follow?
MS WINN: Not exactly, your Honour.
HIS HONOUR: The bankruptcy notice has been set aside by consent. It was set aside by consent the day after, I think, the judgment upon which it was founded was set aside by consent. That's really end of that story. The costs argument that you're now raising seems to me to be one based upon whether you should have got costs as a result of that chronology of events.
MS WINN: No, your Honour, the whole point I'm trying to make is that setting it aside by consent really blanketed what was the real issue, the real issue being that the notice - - -
HIS HONOUR: But these courts are not your plaything. They're not there just to open the door and say what you like. The courts are there for an application to be made for an order to be made, and you're in not better position or worse position than a normal litigant. In other words you can't come to me and say, "I want a better opinion than the one that the registrar gave me." You've got the best possible order you could have got on that application, setting aside by consent the bankruptcy notice, but your task now is to persuade me that that order remaining in full force and effect should then provide you with a basis upon which you can get a costs order different to the one that the registrar ordered.
That I understand very easily and very clearly and there are arguments I can see that you might have and there are arguments I can see the other side might have about that issue, but I have difficulty revisiting the basis upon which you now say, "Look, what the registrar should have said about that bankruptcy notice was (a), (b) and (c)," or something else. I just don't understand how I can do that because that's almost like having - we're having it anyway - a discussion, but I'm really not interested in having long discussions about what would have been nicer for the registrar to say. I'm more interested in what order should follow from the consent order that was made, setting aside the bankruptcy notice. That's what I'm really interested in. Do you follow?
MS WINN: Yes, I do, your Honour.”
(Transcript p.24 lines 1 – 45 andp.25 lines 1 – 4)
It is also evident from a proper reading of the transcript that from time to time the Court made it very clear to the parties that the Court did not have any view about this matter at all. What it specifically stated was that it would hear the question of the costs, which I felt was clearly the core issue in this case. An example of that appears in the transcript as follows:-
“HIS HONOUR: You can reargue the question of costs. This is a hearing de novo. I just want to know what I'm hearing de novo. I'm not hearing the application to set aside de novo because by consent an order was made in the appropriate form that the bankruptcy notice be set aside. On the question of costs, the reason for that is obviously relevant in the exercise of the court's discretion on costs and what order, if any, should be made on costs. It might be a completely different order. What order do you say should be made in relation to costs and why?
MS WINN: That the respondent pay the applicant's costs.”
(Transcript p.14 lines 26- 36)
On my reading of the transcript, it is my view, having regard to the authorities referred to by the Court earlier in this judgment, that there is no proper basis upon which it can be concluded on a fair reading of that transcript that the Court has demonstrated apprehended bias.
There is, however, a separate and discrete issue raised by the Applicant in her submissions before this Court and that concerns the notice of listing which the Applicant claimed incorrectly referred to the Respondent as "Brian Ward and Partners Pty Ltd". In my view, that submission by the Applicant is perfectly correct. The notice was in error, it should not have referred to the Respondent in that manner.
The notice, however, is a notice produced by the Associate, it is not a notice produced by the Court; it is an error and it should not have occurred. However, it is not an error of a kind which would demonstrate and/or provide any support, in my view, for the contention that that of itself would lead to a conclusion, having regard to the authorities that there has been apprehended bias. It is simply an administrative error.
An error of that kind, despite the submissions of the Applicant, cannot be regarded as having a cumulative effect with other complaints made by the Applicant in support of this application. Indeed, each of the complaints made by the Applicant should be dealt with separately. Some of them may well form part of what would be described as categories of complaints concerning what the Applicant perceived to be the conduct of the Court during the course of the hearing.
As I have indicated, on my reading of the transcript, however, the exchange, albeit robust on occasions, was an exchange designed to identify the issues before the Court and to ensure that valuable Court time was not taken up re‑agitating which were in the circumstances futile. It follows, for the reasons given, that in my view this application should be dismissed. I am prepared to make a further formal order that the Applicant be granted leave to file and proceed forthwith with the application for disqualification.
Costs
In relation to the application for this court to disqualify itself - which, as I have indicated, was filed at 8.34 am this day, I will add as an addendum my decision in relation to the costs. Costs are sought in relation to this application by the Respondent.
It is difficult in circumstances of this kind to make a reasonable assessment of the costs, but, in my view, notwithstanding the arguments advanced for and on behalf of the Applicant that there should be no costs order, I conclude, that hearing having occupied just over two hours of the court time and given it was a substantive and significant and what I have described as serious application, that there is no reason, the Applicant having failed in that application, for the applicant then to be ordered to pay costs, which I am satisfied follow the event.
Significant court time has been taken in the adjudication of that application. Normally in bankruptcy‑related matters Division 13.01 of the Federal Magistrates Court Rules 2001 (the Rules) applies in relation to orders for costs. It is normal, as indicated in the substantive matter, for the court to make an order for costs pursuant to Order 62 of the Federal Court Rules. However, Rule 13.01 subrule (2) provides the opportunity for the court to fix the amount of costs. In my view, given the interlocutory nature of the application for the court to disqualify itself from the hearing of this matter, it is appropriate that I fix costs rather than refer then for taxation in default of agreement pursuant to Order 62 of the Federal Court Rules.
I have considered the appropriate amount of costs which are provided in Schedule 2 of the Rules. It seems to me that the application for the court to disqualify itself appears by its nature to be what would be described as an interim hearing and indeed a discrete event. Although listed before this court at the same time as the application in the case and the foreshadowed delivery of judgment in the substantive case, it may well be, in my view, regarded as a discrete event, occupying as it has in excess of two hours of the court time whilst the court heard submissions by both parties.
If I were to apply schedule 1 of the costs scale set out in the Rules then that would result in an order for costs of $1,250.00 pursuant to Stage 2 of the Schedule and would also result in a further order for costs in relation to the hearing, which would involve a half‑day hearing of $750.00, to which would be added an advocacy loading which I would normally certify pursuant to Rule 21.15 of the Rules. Those amounts when taken together would result in a total costs order of $2,375.00.
Given that the Respondent is present in any event for the delivery of the substantive judgment and that I have already made an order in relation to costs arising out of that judgment, which will include of course attendance of counsel and instructing solicitor to hear that judgment, it is my view that it is preferable, in the interests of justice, to fix the amount of costs payable by the Applicant to the Respondent arising of the interim application that this court should disqualify itself.
I do not think it appropriate to simply apply without the exercise of discretion the costs which may otherwise be payable for a stage 2 hearing, given that this hearing has been brought on for hearing over a short period of time and as an urgent matter. Hence, it seems to me the costs actually incurred this day were of Counsel attending what I would describe as a half‑day hearing for that purpose. In those circumstances, it is more appropriate to fix a figure for costs which takes that factor into account and allows a perhaps less substantial amount than might otherwise be the case had the court simply applied Schedule 1 of the Rules.
Doing the best I can, on the material before me, it seems appropriate that I should fix the costs, and I will do so in relation to this matter by ordering that the Applicant pay the Respondent's costs of the interlocutory application which I fix in the sum of $1,800.00.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 11 July 2007
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