FEDERAL COURT OF AUSTRALIA

Shelton v National Roads and Motorists Association Ltd [2004] FCA 977

COURTS AND JUDICIAL SYSTEM - Application for disqualification of judge - Apprehension of bias - Disqualification of judge not to be based on speculative suggestion or mere possibility - No basis for submission - Judge viewing materials from proceedings which the present parties may not access - No basis for disqualification - Application dismissed.

Livesy v New South Wales Bar Association (1983) 151 CLR 288 discussed

Johnson v Johnson (2000) 174 ALR 655 discussed

Bienstein v Beinstein (2003) 195 ALR 225 discussed

Miller v University of New South Wales (No 2) [2001] FCA 1198 discussed

Re JRL; Ex parte CJL (1986) 161 CLR 342 discussed

TIMOTHY JOHN SHELTON v

NATIONAL ROADS AND MOTORISTS ASSOCIATION LIMITED AND ORS

N35 OF 2004

TAMBERLIN J

SYDNEY

27 JULY 2004

THE COURT ORDERS THAT:

The application for disqualification is dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an urgent application brought on behalf of the applicant yesterday afternoon seeking an order that I disqualify myself from hearing further proceedings in this matter.  The application is based on two grounds. 

Apprehension of Bias - Mr and Mrs Kelly

2                     One submission by Mr Camilleri, counsel for the applicant, in substance is as follows:

·        the legal community is in Sydney is a close group;

·        Mr Vincent Kelly is a solicitor known to many practitioners;

·        Mr Kelly’s firm over many years acted for the National Roads and Motorists’ Association (“NRMA”);

·        I may know Mr Kelly, or his wife, who will be a witness in the proceeding;

·        I may have been briefed by Mr Kelly, or by his firm; and

·        therefore I should disqualify myself. 

3                     Mr Robb, QC, who appeared for a number of the respondents, opposed the application for disqualification.  He submitted that this application lacked substance and should be dismissed.

4                     The disqualification of a judge from proceedings which are being case-managed by that judge, and in respect of which an important application is listed for hearing in the immediate future, can cause disruption, incur expense, and result in delays to the resolution of the dispute.  It is not a step to be taken lightly.  There must be some real and substantial basis for making the application based on principled submissions, and, where possible, some evidence of matters relied on or circumstances which might give some support to making good a ground for disqualification.  It is not an application to be based on speculative supposition, suggestion or mere possibility.  As the High Court said in Livesy v New South Wales Bar Association (1983) 151 CLR 288 at 294:

“ … it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party to do so on the grounds of a possible appearance of prejudgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court.”

5                     Although not expressed as such, this submission appears to be based on the ground of possible bias.  The relevant principle was expressed by the High Court in Johnson v Johnson (2000) 201 CLR 488 at [11] as being:

“… 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.”

6                     In Bienstein v Bienstein (2003) 195 ALR 225 at [33] the High Court expressed the principle in these terms, in relation to personal relationships as being a ground for disqualification:

“Relevantly to the present matter a reasonable apprehension of bias may exist where the presiding judge has a substantial personal relationship with a party to, or a person involved in, proceedings or a substantial personal relationship with the member of the family of that party or person.  But absent such relationships or others like them, it is absurd to suggest that a reasonable apprehension of bias can exist merely because a person involved in the proceeding comes from the city where the judge once practised professionally or because the judge may have had professional dealings with that person in the course of professional practice.” (Emphasis added)

7                     Similar remarks and principles are set out by Branson J in the case of Miller v University of New South Wales (No 2) [2001] FCA 1198 at [10], where her Honour points out that ajudge has a duty to continue involvement in the proceeding if grounds for disqualification do not exist. Her Honour refers to remarks of Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352, which are in these terms:

“[I]t 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.”

8                     No evidence has been filed in relation to any circumstances, instances or reasons for the suggestions made in the submission in relation to Mr or Mrs Kelly.  There is no basis for it.  I know Mr Kelly by sight, but that is all.  I have never met Mrs Kelly.  I have never been briefed for the NRMA as a barrister. Nor can I recall ever being briefed by the firm in question.  Accordingly, I do not accept this as a ground for disqualification.

Access to Excluded Materials

9                     The other matter raised by Mr Camilleri is a suggestion that I may have read a file or files concerning other proceedings in this Court concerning the NRMA in respect of which a Deputy Registrar has ruled that certain material should not be available.  It is submitted that I may have had access to this material and may have read material in respect of which the applicant cannot secure access, and therefore I should disqualify myself.

10                  Mr Picone, the solicitor for the applicant, has filed an affidavit on 26 July 2004, which refers to the transcript in which Mr Camilleri indicated that he wished to look at certain files.  This interchange took place on pages 29-32 of the transcript of a directions hearing on 18 February 2004.  In the exchange I expressed reservations that there may be affidavits, for example, parts of which had been excluded from evidence, or that there could have been confidential material.  I had in mind also that there might have been privileged material or parts of the material that were not read in evidence.  I foreshadowed these as possible limits on making the documents available.

11                  On 20 February 2004, Mr Picone came to the Court and asked the Deputy Registrar for access to two files numbered N 3043 of 2003 and N 951 of 2003.  The Deputy Registrar referred the request to me.  The files, it appears from Court records, were sent to me.  I have no recollection of reading the files, nor do I have any recollection of anything in the files.  When the matter came to me I spoke with the Deputy Registrar and referred to the relevant Court Rules together with two decided cases in relation to the inspection of documents by a person who was not a party to the proceeding in which the documents were used.  I then returned the matter to the Deputy Registrar with a note that if the affidavits had been read in open court then so far as material was not excluded by the Judge access should be granted.  I directed the Deputy Registrar to examine the files to see if there was any privilege claimed, or material which had been struck out as inadmissible, before making the documents available.

12                  In his affidavit, Mr Picone says he attended the Federal Court Registry on 5 March 2004 to peruse the documents and spoke to a clerk.  He was told that the files were with me and that the clerk would go and see my associate.  Deputy Registrar Grant spoke with Mr Picone on 5 March 2004 and stated that access had been allowed for both files but that it must be ensured that there was no material in the affidavits that had been rejected or not read.  Deputy Registrar Grant indicated that he would have to order the transcript to do this as there was not a copy on file, and that this would take some days.  On 17 March 2004, Deputy Registrar Grant said the files could be examined by Mr Picone and, if necessary, copied, but there was some material to which the Deputy Registrar, having considered the files and the transcript, would not grant access.  Mr Picone attended the Court on 17 March 2004 and examined the two files with the material excluded.

13                  These circumstances do not persuade me in any way that there is any basis for disqualification.  I should note the matter is set down in three days' time for hearing of a strike out application in relation to a second Statement of Claim.  This application for disqualification was only filed in Court at 4.00 p.m. on Monday, 26 July 2004, and was heard urgently at that time, notwithstanding that Mr Picone had been aware of the relevant material deposed to in his affidavit since 17 March 2004.  No explanation has been given for the delay of four months in making this application.  However, I note that an affidavit was filed in Court this morning, giving some background and some explanation.

Conclusion

14                  In conclusion, I am not persuaded that any ground has been suggested or made out which would warrant the serious step of disqualification in this matter.  Accordingly I dismiss the application with costs.

Associate:

Dated:              4 August 2004