Morton v The Transport Appeal Boards & Anor

HIS HONOUR : These are reasons for judgment for my refusal to disqualify myself.

The plaintiff, Stephen James Morton, has commenced proceedings, by way of summons, with six prayers for relief. The first five prayers relate to an appeal against a decision of the Transport Appeals Board that dismissed an application by the plaintiff that the Board overturn the decision of Sydney Ferries Corporation to dismiss the plaintiff. The last prayer raises an issue relating to the terms of the contract of employment under which the Corporation employed the plaintiff and whether it has been breached.

At the request of the parties, the Registrar requested that I, as the recently allocated trial judge, see counsel for both of the parties in my Chambers on 2 August 2007 so they could seek to have listed before the Court on the morning of the hearing, prior to the further hearing of the proceedings, a notice of motion seeking a separate hearing of the first five prayers for relief, on the one part, and the breach of contract claim, on the other.

At the commencement of the proceedings on Friday 3 August 2007, counsel for the Corporation applied, in Court, for me to disqualify myself on the basis of apprehended bias. I declined the application and indicated to the parties that I would issue reasons in the fullness of time. These are those reasons.

It is necessary to identify the legal representatives in the proceedings. The necessity for that will be obvious from a reading of the remainder of these reasons. Mr David Knoll, of counsel, represented the plaintiff before this Court; Mr Peter Newall, of counsel, represented the Corporation. The Board submits to any order of the Court, save as to an order for costs. On the occasion that this matter was last before the Court, before Howie J, Ms Kathleen Anne Plowman appeared, in lieu of Mr Newall, on behalf of the Corporation.

Mr Newall makes the application for disqualification on behalf of the Corporation. For that purpose he relies upon an affidavit sworn by Ms Plowman. Ms Plowman is a solicitor in the employee of Sparke Helmore, the solicitors for the Corporation. The affidavit recounted that she and Mr Knoll attended Court on 13 June 2007. The Court made orders, by consent, in accordance with short minutes of order that were provided.

The Corporation adduces the following evidence. After the proceedings concluded a discussion occurred. I set out the terms of the affidavit as it relates to that conversation: "5. Then we had a brief discussion about the case, the details of which I don't recall. 6. To the best of my recollection, Mr Knoll then said, in relation to the current proceedings, words to the following effect: 'It's an interesting matter and it would be even more interesting if it was heard by Rothman. But I don't think Rothman can hear it because he and I are too close. I know him very well. I was his junior in many cases over the years. But I guess that does not seem to worry them these days when they go to the Bench'. or words to the following effect, I cannot now recollect which: 'It's an interesting matter and it would be even more interesting if it was heard by Rothman. But I don't think Rothman can hear it because he and I have worked closely together. I know him very well. I was his junior in many cases over the years. But I guess that does not seem to worry them these days when they go to the Bench'. 7. I responded with words to the effect of: 'I guess that if they were too strict they would have to disqualify themselves from everything'."

I do not consider that there is a difference of substance between the alternate wordings proffered by Ms Plowman. I also accept that the evidence establishes that Mr Knoll said one of those alternatives.

The above conversation is made only marginally less bizarre when it is put into a context that prayer six in the amended summons, relating to the breach of the contract of employment, depends upon the existence, in this contract of employment, of an implied duty not intentionally to destroy or to damage the relationship of mutual trust and confidence, which duty was found, by me, to exist in a contract of employment by reason of the common law of Australia as it applied to that contract. Those reasons for judgment were delivered in February 2007: see Russell v The Trustees of the Roman Catholic Church [2007] NSWSC 104. The written submissions filed by Mr Knoll, in these proceedings, at a time prior to the allocation of the matter to me, refer at length to those reasons for judgment. Further, Mr Knoll, in cross-examination, sought to adduce evidence from the deponent to the effect that the conversation concerned the aforementioned judgment, but the deponent could not recall (but could not deny) that aspect of the conversation.

There are two other matters to which I will refer before dealing with the issues in the proceedings. The first is that Mr Knoll sought to cross-examine the witness and in doing so put to her that which, he asserted, were different words used by him. I find that process inappropriate and, to the extent possible, it should be avoided: see, infra, NSW Bar Association Rules, Rule 20. The second issue is the suggestion made by Mr Knoll, at the conclusion of the evidence called by Mr Newall on the application for disqualification on behalf of the Corporation, in the following terms: "Your Honour, I am in the unfortunate position to have to go into the witness box myself. Do I have to disrobe to do so? Only from my wig and gown, your Honour?"

The last question in that passage from Mr Knoll was in response to my reaction to the use of the word "disrobe". I responded to the indication by Mr Knoll that he was to enter the witness box with the following observation: "Well, there is a whole range of problems with that, Mr Knoll. My understanding is of the Bar Association rules at least. I don't know to what extent they bind me. I don't think they do, but they probably do bind you; but if you give evidence in the proceedings …." (Transcript corrected by me) (There are some significant errors in the Transcript and some exchanges that were not recorded.)

Mr Knoll then sought to obtain instructions, briefly, and advised the Court that he would not be adducing any evidence on the application. Principles On the Question of Apprehended Bias

Before discussing the general principles of law applicable to the determination of whether a judicial officer should grant an application for disqualification on the basis of apprehended bias, it is necessary to deal with the process that ought to be followed for the making of such an application.

The Court of Appeal has described the orthodox method of raising with a judicial officer the question of apprehended bias. The relevant passage is cited, without criticism as to the practice, by the High Court of Australia in Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 292. In Livesey , counsel making the application, together with counsel for the other party, approached the judges in chambers to notify them of the application to be made and its basis. This is the usual practice. At the very least, it is incumbent upon a legal practitioner seeking to make an application (that a judicial officer be disqualified from hearing a matter) to notify the judicial officer as early as possible of the party’s intention to proceed with such an application and its basis.

This is not simply a matter of courtesy. Such notice aids the administration of justice. It allows the other party, to the extent necessary, to be represented by separate counsel, if, as in this case, it be a matter in which the counsel is personally involved. Further, it allows the judicial officer to understand the nature of the application and to be prepared for it prior to it being agitated in court.

However, it is also a matter of courtesy. And such courtesy also aids the administration of justice. For example, let us assume that the judge accepted, in Chambers, that there were good reasons to stand down from the hearing. An earlier notification of the application would allow the court or tribunal to reallocate the matter (possibly with the necessity of reallocating two matters) and thereby not occasioning any delay.

Further, in some cases, unlike the present, the matter raised may be one of personal embarrassment to the judge. For example, there may be an issue concerning a financial or business involvement that the judge does not want to be made public; or a personal involvement of like kind.

Whatever the reason for the practice, it is an important aspect of the application of the principles that, at the earliest possible time, and prior to any application being made in open court, counsel informs the judicial officer that an application of such kind is to be made. Such a process was not followed in these proceedings.

The general principle is that a judge should not hear a case if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions involved in it: Livesey , supra, at 293-294; R v Watson; ex parte Armstrong (1976) 136 CLR 248 at 258-263.

It is inappropriate for a judicial officer to take "the easy option" and accede to such an application without coming to the conclusion that it is necessary. Judicial officers (and most members of most tribunals) are under a duty to hear and determine matters allocated to them: see Re JRL; ex parte CJL (1986) 161 CLR 342 at 352; Re Polites; ex parte Hoyts (1991) 173 CLR 78.

In the last mentioned judgment of the High Court, the member of the Australian Industrial Relations Commission determined that there was a reasonable apprehension that he could not bring an impartial mind to the determination of the issues in the proceedings, because he had previously advised one of the parties before the Commission on an issue relevant to the proceedings. Yet the High Court determined that he was required, in the circumstances, to sit and to hear and determine the proceedings allocated to him. The High Court issued mandamus to effect that course.

Thus, it is necessary for me to determine, whatever may be my inclination, whether there is a reasonable apprehension that I could not bring an impartial mind to the determination of the issues between the parties in these proceedings. In order for there to be a reasonable apprehension of the relevant kind, it is necessary that a fair-minded lay observer, properly informed, might reasonably apprehend that I might not bring an impartial mind to the resolution of the issues in the proceedings: see Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 at 344.

The High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) in Ebner (supra, at 345, [8]) discusses the underlying philosophy behind the principle in a way that informs its application. Their Honours said: "The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed."

It is to be noted that the above passage does not seek to deal with an interest by association with counsel in proceedings. Few if any cases deal with such a proposition primarily because of the nature of the function of counsel and the necessary relationship between the judiciary and the Bar. There was a time when criticism was levelled at the appointment as judges of persons from outside the Bar. It is to the benefit of all that such time has long passed. However, judges of superior courts are almost universally selected from the legal profession. The difficulty lies in what is to be presumed is the knowledge of a "properly informed fair-minded lay observer". Is it, as stated by Kirby P, the knowledge of "ordinary reasonable citizens on the Emu Plains omnibus"? (See S & M Motor Repairs v Caltex Oil (1988) 12 NSWLR 358 at 376 adopted by Kirby J. in Johnson v Johnson (2000) 201 CLR 488 at 509 [54]).

There is much to be said for the minority view of Kirby P in S & M Motor Repairs , supra, that too great a sophistication in the assumed knowledge of the hypothetical bystander translates the test to one that would relate to the reasonable apprehension of an onlooker judge.

However, in the current circumstances, it is as well to remember that it is the conduct of the judge that is scrutinised for prejudice and/or a lack of impartiality. Leaving aside the reference to "high probability", which is no longer the test, the passage in R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Company Pty Ltd (1953) 88 CLR 100 and 116 (cited by Kirby J. in Johnson , supra, at 498) bears repeating: "Bias must be 'real'. The officer must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons." Application of Principles to Circumstances

During the course of these proceedings, I asked counsel for the applicant for a precise indication of the evidence relied upon and the conduct of the judge that it proves. At least technically, the evidence adduced proves only that one counsel has expressed an opinion that the judge has too close an association with that counsel to hear the matter impartially. It also "proves" that the basis for that counsel's opinion, if it were truly held, is that the counsel was the judge's junior "in many cases over the years".

The proposition inherent in the expressed opinion, if it were truly held, shows a fundamental misunderstanding of the role of counsel. The Bar Rules are explicit: “18. A barrister must not act as the mere mouthpiece of the client or of the instructing solicitor and must exercise the forensic judgments called for during the case independently, after appropriate consideration of the client's and the instructing solicitor's desires where practicable. ( Giannarelli v Wraith (1988) 165 CLR 543 at 556-7) . . . 20. A barrister must not make submissions or express views to a court on any material evidence or material issue in the case in terms which convey or appear to convey the barrister's personal opinion on the merits of that evidence or issue.”

The fact, if it were the fact, that counsel acted as junior counsel in many cases over the years and thereby formed a close association with lead counsel who later became a judge does not, without more, form a basis for the disqualification of that judge in a matter in which his former junior counsel appears for a litigant. Different issues arise if the junior counsel were a litigant. In terms of practice at the Bar, a close association of the kind described in the conversation of Mr Knoll would not, for example, prevent, and would generally result in, the junior counsel, as seniority was gained, appearing (unled) against the former leader in other proceedings. It would be extremely odd if counsel could appear against each other for different litigants in other proceedings, and yet, on appointment, could not adjudicate matters involving that counsel.

While the tests in England on the question of bias are expressed differently ( Johnson , supra, at 492) (although the differently expressed tests may not effect a different result), the relationship between the Bar and the Bench was the subject of discussion in a passage that is instructive: "[61] The fact that the observer has to be 'fair-minded and informed' is important. The informed observer can be expected to be aware of the legal traditions and culture of this jurisdiction. Those legal traditions and that culture has played an important role in ensuring the high standards of integrity on the part of both the judiciary and the profession which happily still exist in this jurisdiction. Our experience over centuries is that this integrity is enhanced, not damaged, by the close relations that exist between the judiciary and the legal profession. Unlike some jurisdictions the judiciary here does not isolate itself from contact with the profession. Many examples of the traditionally close relationship can be given …. [62] It is also accepted that barristers from the same chambers may appear before judges who were former members of the chambers or on opposite sides in the same case. This close relationship has not prejudiced but enhanced the administration of justice. The advantages in terms of improved professional standards which can flow from these practices have been recognized and admired in other jurisdictions …. [63] The informed observer will therefore be aware that in the ordinary way contacts between the judiciary and the profession should not be regarded as giving rise to a possibility of bias. On the contrary, they promote an atmosphere which is totally inimical to the existence of bias. What is true of social relationships is equally true of normal professional relationships between a judge and the lawyers he may instruct in a private capacity." ( Taylor v Lawrence [2003] QB 528 at 548-9.)

Taylor v Lawrence , supra, concerned an application for bias in circumstances where the solicitor for a litigant was the judge's personal solicitor and had attended to work for the judge during the course of the litigation or immediately prior thereto. It should also be noted that the conduct with a legal representative of a litigant was during the time of the judge's tenure. I am unaware of any judgment of any court or tribunal in the common law world (and presumably therefore any application) based upon the proposition that a relationship between counsel, as such, was a ground for the disqualification of a judge who was, previously, one of those counsel. We are not here concerned with a legal representative who is a spouse, sibling or child of the judge, or is otherwise in a domestic relationship.

The above approach is not assuming that the informed bystander "on the Emu Plains omnibus" has a sophisticated understanding of the intricacies of the law or legal practice. In Australia, whether it is the Bondi tram or the Emu Plains omnibus, travellers would at least expect a relationship between members of the Bar (and members of the Bar and judges) that was as good as or better than their sporting idols. Members of the public would expect that professional sportspersons would have the capacity to compete against each other on a weekend, yet compete together for a representative team on the next weekend. Further, and with more direct relevance, members of the public would expect that a referee or umpire could be drawn from former players and yet impartially referee contests involving former teammates with whom the referee previously had a close association. Members of the public would judge such a referee on the conduct of the referee and the quality of the refereeing, and would rightly complain bitterly were that referee to act otherwise than impartially.

Whatever be the expectation of members of the public as to their sporting idols, a properly informed reasonable bystander would expect a judicial officer to act impartially and without prejudice without regard to the identity of the legal practitioner who is appearing. That expectation is for a level of conduct higher than one would expect of a referee in a sporting contest, but also takes into account that the legal practitioner appearing before the judicial officer is prevented from expressing a personal view of, or personal commitment to, the cause of the party or the evidence that has been adduced. “Disinterestedness”, in the sense of personal commitment, is a feature of practice at the Bar and an important element in the protection of human rights and the ability to ensure that all persons, even those who have views of which a barrister disapproves, are able to be represented.

If professional relationships were considered an impediment, the ramifications would be extremely broad. In this case alone, Mr Newall’s instructing solicitor was my tipstaff/researcher for a period and General Counsel for the Corporation was my instructing solicitor in her previous employment.

One other matter should be mentioned. Counsel for the second defendant pressed the application on the basis that the affidavit evidenced a close association between the judge and other counsel. As earlier stated, the evidence does not go so far. Even if one were to take the view that the statement by Mr Knoll was an admission, it is evidence only of his view as to the association and its closeness. Otherwise, it is evidence only that he has made that statement.

It is my view that a judge who is subject to an application to disqualify ought not to descend into any factual contest. Nevertheless, an examination of the Austlii Database would disclose cases in which both Mr Knoll and I appeared as counsel. This is a publicly available document. No attempt was made by either counsel to put in evidence the result of such a search. It requires no more than two minutes.

Of course, theoretically, there may be matters in which judgment has not been reported or matters in which judgment is still reserved, even after over two years. Neither possibility is likely. However, I draw no Jones v Dunkel inference.

The above is not included for the purpose of commenting on the credit worthiness or accuracy of Mr Knoll or his view that he has a "close association" with me. It is possible that Mr Knoll considers that to be the case, genuinely, and that, in his view, there have been "many cases over the years". The term "many" is a comparative term, on which people will differ.

As was referred to, albeit obliquely, during the course of the proceedings, my association with Mr Knoll is not confined to our roles as barristers. Mr Knoll and I have both served on ethnic community committees, and still do. That relationship is also professional and similar to that between counsel. However, no application is made on that basis and the association would not accurately be described as "close" (in the relevant sense), but it is closer than the one on the basis of which the application has been made. Nor is it one that would reasonably be seen to impede an impartial determination by me of a matter in which Mr Knoll appeared as counsel before me. Friendship between counsel and the judiciary is not, except in the most extreme circumstances, a basis for disqualification. Those extreme circumstances must involve an apprehension that, because of the identify of the legal representative, the judge would not impartially decide the issues in the proceedings; i.e., the identity of a legal representative gives the informed bystander a reasonable apprehension that the judge has an interest in its outcome.

It is for the above reasons that I refused the application that I disqualify myself.