Zhi G.W. v Minister for Immigration & Ethnic Affairs

[1995] FCA 803

CATCHWORDS

COURTS AND JUDGES - No reasonable apprehension of bias in relation to notice of motion involving issues unrelated to previously decided matters.

Livesey v New South Wales Bar Association (1983) 151 CLR 288.
Australian National Industries Ltd v Spedley Securities Ltd (in liq.) (1992) 26 NSWLR 411.
Gas and Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48.
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70.
Re JRL; Ex parte CJL (1986) 161 CLR 342.

GUO WEI ZHI v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS & ANOR
AG 51 of 1994

Sackville J.
Sydney
15 September, 1995

FEDERAL COURT OF AUSTRALIA          )  
NEW SOUTH WALES DISTRICT REGISTRY    )   No. AG 51 of 1994
GENERAL DIVISION  )      

BETWEEN:
  GUO WEI ZHI
  Applicant

AND:
  MINISTER FOR IMMIGRATION AND
  ETHNIC AFFAIRS
  First Respondent

AND:

MS S. McILLHATTON,

Member constituting the Refugee Review Tribunal

Second Respondent

CORAM:       SACKVILLE J.
PLACE:       SYDNEY
DATE:             15 September, 1995     

REASONS FOR JUDGMENT

On 4 May 1995, I gave judgment in Guo Wei Rong v Minister for Immigration and Ethnic Affairs ("the first proceedings").  In those proceedings I dismissed applications for relief made by Mr Guo and his wife, Ms Pan.  I also gave certain relief in two other matters, which were heard at the same time.  In those matters, the applicants were the nieces of Mr Guo and Ms Pan.  All four applicants arrived in Australia on 5 December 1993 from China, on the vessel designated as the "Quokka".  Appeals are presently pending before the Full Court from the orders made by me in the proceedings involving Mr Guo and Ms Pan.

A separate matter, Guo Wei Zhi v Minister for Immigration has been before the Court on a number of occasions for directions.  The applicant in that matter is the brother of Guo Wei Rong, and also arrived in Australia on board the Quokka.  Many of the issues raised in these proceedings (the second proceedings) are very similar, if not identical, to those dealt with in the first proceedings.  I have been conducting the directions hearings in the second proceedings.

The first respondent in the second proceedings has filed a notice of motion, seeking orders that the second proceedings be dismissed by reason of a failure of the applicant to comply with certain procedural directions.  In the alternative, the first respondent seeks less drastic orders, including an order that the applicant not be permitted to rely upon evidence filed out of time.  The motion is set down to be heard by me on 26 September 1995. 

At the last directions hearing in the second proceedings, Mr Lawler appeared for the applicant.  Mr Lawler was junior counsel for the applicants in the first proceedings.  At that directions hearing, Mr Lawler raised for consideration the question of whether I should disqualify myself from the hearing of the notice of motion scheduled for 26 September 1995.  When I pointed out that the issues for determination at that hearing were quite different from those dealt with in the first proceedings, Mr Lawler withdrew his foreshadowed opposition to my hearing the notice of motion.  Subsequently, however, Mr Lawler indicated
that he wished to pursue the matter.  Accordingly, I directed that the matter be relisted in advance of the hearing of 26 September 1995 in order to allow the parties to make submissions on the question of whether I should disqualify myself from the hearing scheduled for 26 September 1995.

Mr Lawler has submitted that I should disqualify myself.  As I followed him, Mr Lawler accepted that:

lnone of the issues to be determined on the notice of motion relates to or has been dealt with in the first proceedings;

lthe first proceedings were not conducted in a manner that departed from the requirements of natural justice or procedural fairness;

lno issues of credit determined in the first proceedings would be relevant to any of the issues to be decided at the final hearing in the second proceedings.

Despite these matters, Mr Lawler contended that I would be disqualified from conducting the final hearing in the second proceedings.  On Mr Lawler's submission, I had decided some issues of law and of mixed fact and law, in the first proceedings which were, in substance, identical to the issues raised by the applicant in the second proceedings.  This would produce the result that I could not conduct the final hearing without creating a reasonable apprehension that I might not bring an
impartial mind to the resolution of those issues.  Since I would be disqualified from the final hearing, Mr Lawler submitted that it followed that I should not deal with any interlocutory matters in the same proceedings.

Mr Lawler, who made his submissions carefully, relied upon the well-known statement of principle in Livesey v New South Wales Bar Association (1983) 151 CLR 288, at 293-294:

"[The] principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it."

The significance of the reference to an apprehension that a judge "might" (as opposed to "will") not bring an impartial and unprejudiced mind to the question has been the subject of detailed consideration in other cases: see, for example, Australian National Industries Ltd v Spedley Securities Ltd (In liq.) (1992) 26 NSWLR 411, at 439-440, per Mahoney JA; at 448-449, per Meagher JA; Gas and Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48, at 64-65, per Gummow and Heerey JJ.

Despite the breadth of this principle, it is by no means clear that I am disqualified from conducting the final hearing in the second proceedings, bearing in mind that it appears that no issue of credit has been determined by me that will be relevant to those proceedings.  However, it may well be that my decisions on the questions of law, and of mixed fact and law, in the first proceedings are sufficient to satisfy the stringent test laid down in Livesey and applied in other cases, given that the same or very similar issues arise in the second proceedings.  I am content for present purposes to assume that that is the case.

On this assumption, it does not seem to me that there could be a reasonable apprehension by the parties or the public that I might not bring an impartial or unprejudiced mind to the resolution of the question involved in the interlocutory hearing.  It must be remembered that, as Mr Lawler accepted, none of the issues to be dealt with at that hearing in any way related to the matters determined by me in the first proceedings.  As was pointed out in the Gas and Fuel Corporation Case, the law determines what is to be assumed to be the state of knowledge and reasoning of the person whose apprehension of bias is relevant.  Gummow and Heerey JJ. (at 65) quoted the observations of Mahoney JA in Spedley (at 440) as follows:

"The result of this is that, in substance, this matter is to be judged often, if not ordinarily, according to the view of one who is mistaken.  The fact will ordinarily be that the court will be impartial in the relevant sense but the judge will step aside because, though he will be impartial, the appearance of what he does to a person who does not know, for example, the integrity of the court, the capacity of a judge, or the full facts of a case, will raise the reasonable apprehension that he might not be so."

However, Gummow and Heerey JJ. then drew attention to the observations of Mason C.J. and Brennan J. in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, at 87:

"In assessing what the hypothetical reaction of a fair-minded observer would be, we must attribute to him or her knowledge of the actual circumstances of the case."

Applying this test, it seems to me that the fair-minded observer ought to take into account that the issues in the interlocutory proceedings that I am to determine are quite unrelated to anything dealt with in the first proceedings.  Not only is there no question of credit raised in the interlocutory proceedings that was addressed in the first proceedings, but there is no common issue of law or fact.  The question is simply whether the proceedings should be dismissed for want of compliance with directions and, if not, whether any other orders should be made for the further conduct of the proceedings.

In considering this application, it is important to bear in mind the comments of Mason J. in Re JRL; Ex parte CJL (1986) 161 CLR 342, at 352:

"It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases at Watson [(1976) 136 CLR 248] and Livesey 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 prejudgment and this must be "firmly established": Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [(1969) 122 CLR 546, at 553-554]; Watson; Re Lusink; Ex parte Shaw [(1980) 55 ALJR 12, at 14]. 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."

It follows from what I have said that I should not decline to hear the motion, which has been set down for 26 September 1995.

I certify that this and the preceding 6 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.

Associate:

Dated:15 September, 1995

Heard:13 September, 1995

Place:            Sydney

Decision:15 September, 1995

Appearances:      Mr M. Lawler, instructed by Walsh James, Solicitors, appeared for the applicant.

Mr N. Williams, instructed by the Australian Government Solicitor, appeared for the first respondent.

The second respondent has filed a submitting appearance.