FEDERAL COURT OF AUSTRALIA
Dye v Commonwealth Securities Limited (No 4) [2010] FCA 910
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Citation: |
Dye v Commonwealth Securities Limited (No 4) [2010] FCA 910 |
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Parties: |
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File number: |
NSD 1165 of 2008 |
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Judges: |
KATZMANN J |
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Date of judgment: |
23 August 2010 |
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Catchwords: |
COURTS AND JUDGES – bias – apprehended bias – prejudgment - whether a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment – whether prejudgment of issues or credit in an interlocutory judgment – whether reasonable apprehension of bias even if no clear findings of fact or on credit made in an interlocutory judgment - recusal |
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Cases cited: |
Antoun v R [2006] HCA 2, 224 ALR 51 distinguished Australian National Industries Ltd v Spedley Securities Ltd (In Liq) (1992) 26 NSWLR 411 cited Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2009] FCAFC 8, 174 FCR 175 applied Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55, 229 CLR 577 applied Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337 applied Johnson v Johnson [2000] HCA 48, 201 CLR 488 cited JRL, Re; ex parte CJL (1986) 161 CLR 342 cited Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 cited Lee v Cha [2008] NSWCA 13 cited Livesey v NSW Bar Association (1983) 151 CLR 288 applied R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546 cited R v Watson; ex parte Armstrong (1976) 136 CLR 248 cited Southern Equities Corporation Ltd (in liq) v Bond [2000] SASC 450, 78 SASR 339 cited |
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Date of hearing: |
5 August 2010 |
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Date of last submissions: |
9 August 2010 |
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Place: |
Sydney |
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Division: |
GENERAL DIVISION |
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Category: |
Catchwords |
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Number of paragraphs: |
101 |
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Counsel for the Applicant: |
Mr P E King |
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Solicitor for the Applicant: |
Turner Freeman |
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Counsel for the Respondent: |
Ms K Eastman |
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Solicitor for the Applicant: |
Freehills |
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
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GENERAL DIVISION |
NSD 1165 of 2008 |
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VIVIENNE LOUISE DYE Applicant
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AND: |
COMMONWEALTH SECURITIES LIMITED Respondent
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JUDGE: |
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DATE OF ORDER: |
23 AUGUST 2010 |
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WHERE MADE: |
SYDNEY |
THE COURT ORDERS THAT:
2. Costs be reserved.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
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GENERAL DIVISION |
NSD 1165 of 2008 |
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BETWEEN: |
VIVIENNE LOUISE DYE Applicant
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AND: |
COMMONWEALTH SECURITIES LIMITED Respondent
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JUDGE: |
KATZMANN J |
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DATE: |
23 AUGUST 2010 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
1 On 9 July 2010 I delivered judgment on a motion filed by the applicant for leave to amend her statement of claim: Dye v Commonwealth Securities Limited [2010] FCA 720. The statement of claim pleads several causes of action but it principally concerns allegations of sexual discrimination, harassment and victimization. The amendments she sought to make were great in number and included two additional causes of action for injurious falsehood and breach of privacy.
2 The motion was supported by an affidavit sworn by the applicant herself. The purpose of the affidavit was to provide an explanation for the delay in applying for leave to amend. The respondent challenged the explanation and cross-examined the applicant.
3 In large part I was unpersuaded by the applicant’s explanation and, although I did grant leave to make a number of amendments, it is fair to say that she was substantially unsuccessful.
4 The applicant has now filed another notice of motion seeking two substantive orders. The second is for the vacation of the hearing dates (six weeks commencing 6 September) “pending” the determination of the applicant’s motion for leave to appeal from my judgment on the adjournment application. Although it was not withdrawn, this second order was overtaken by events, as Nicholas J dismissed the motion for leave to appeal as incompetent on 4 August 2010, the day before argument on the motion for my recusal was heard: Dye v Commonwealth Securities Limited (No 2) [2010] FCA 817. In the circumstances, I dismiss the second prayer. The first prayer is that I recuse myself from “hearing or further hearing the matter...by way of directions or otherwise”. This judgment is concerned with that question.
5 The applicant’s principal contention is that in my reasons for judgment on the application to amend I made adverse findings on her credit, a central issue in the substantive proceeding, and of fact on other matters that will be issues at trial. Although at times the applicant’s submissions insinuate actual bias, the applicant’s counsel, when pressed, maintained that the application was based solely on apprehended bias.
6 The respondent opposes the application.
General principles
7 The principles governing disqualification for apprehended bias are well established. They are not, however, always easy to apply.
8 The overriding principle is that a judge should not sit to hear a case if in all the circumstances (subject to issues of waiver or necessity) a fair-minded lay observer might entertain a reasonable apprehension that (s)he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it: Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337 (Ebner) at [33]. See too Johnson v Johnson [2000] HCA 48, 201 CLR 488 (Johnson). The question is one of possibility (real and not remote), not probability: Ebner at [7].
9 The general principle applies to all problems of apprehended bias, whether arising out of interest, conduct, association, extraneous information or, as here, prejudgment: Ebner at [33]. Where the argument is that there is a reasonable apprehension of bias by reason of prejudgment the High Court said in Livesey v NSW Bar Association (1983) 151 CLR 288 (Livesey) at 300:
… a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact.
10 A fair and unprejudiced mind, however, 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”: R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546 at 554, cited in R v Watson; ex parte Armstrong (1976) 136 CLR 248 (Watson) at 262. But in Watson the High Court observed (at 265) that a party who believes on reasonable grounds that the judge has decided in advance to disbelieve her evidence cannot have confidence in the result of the proceedings. In Australian National Industries Ltd v Spedley Securities Ltd (In Liq) (1992) 26 NSWLR 411 Mahoney JA (at 442E), with whom Meagher JA agreed at 447G, observed that a previous decision of the same fact or on the credibility of a relevant witness will “normally, if not inevitably”, give rise to a reasonable apprehension of bias.
11 There is no doubt that the Court’s refusal to grant leave to amend a pleading is not of itself a ground for inferring bias. As Mason J emphasised in Re JRL; ex parte CJL (1986) 161 CLR 342 (JRL) at 352, what must be shown to justify disqualification is a reasonable apprehension that the judge will not decide the case impartially and without prejudice, not that he or she 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; Watson; Re Lusink; Ex parte Shaw . 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
12 In Southern Equities Corporation Ltd (in liq) v Bond [2000] SASC 450, 78 SASR 339 (Southern Equities), where a majority of the Full Court held that the trial judge was disqualified because a reasonable apprehension of bias had been created by his resolution of issues of fact and credit in an interlocutory judgment, Bleby J (who, with Olsson J, made up the majority) said at [129]:
it should not be assumed that, merely because a judge has been responsible for the pre-trial case management of a particular case and will obviously have made decisions adversely affecting one party or another, the judge is necessarily precluded from conducting the trial. Indeed, there would be few interlocutory applications, a decision on which would be likely to give rise to a reasonable apprehension of bias. This is particularly so because most contested applications are decided on affidavit evidence where either the facts are not in dispute or where, as in the case of an interlocutory injunction, the judge merely has to be satisfied that the facts deposed to raise a serious question to be tried. Usually, findings on such issues will be cast in language which could not possibly found a successful submission of apprehension of bias.
13 Southern Equities concerned an application for a freezing order and in his decision the trial judge made both findings on the defendants’ credit and findings of fact about the movement of funds between different corporate entities.
14 Olsson J observed (at [50]) that, where in an interlocutory hearing specific findings of fact on the available evidence must be made, even if those findings are expressed to be provisional, they might reasonably engender an apprehension of pre-judgment as to other issues at trial if they are made by the trial judge. But much will depend on the precise nature of the findings and the manner in which they are expressed.
15 As the plurality emphasised in Johnson at [12], two things have to be remembered. First, the observer is taken to be reasonable and secondly, the person being observed is “a professional judge whose training, tradition and oath or affirmation require [her or him] to discard the irrelevant, the immaterial and the prejudicial”, citing Vakauta v Kelly (1988) 13 NSWLR 502 at 527 per McHugh JA. Moreover, as their Honours went on to point out (at [13]), although the hypothetical observer is not to be assumed to have a detailed knowledge of the law or the character or ability of the particular judge, whether or not the suggested apprehension is reasonable must be considered in the context of ordinary judicial practice.
16 To similar effect, Kirby J said in Johnson (at [53]) – and see also Callinan J at [80] –the hypothetical observer is not “wholly uninformed and uninstructed about the law in general or the issues to be decided” and:
[b]eing reasonable and fair‑minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances......The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.
(Emphasis added.)
17 The hypothetical fair-minded observer will be assumed to have knowledge of the issues to be decided and the circumstances in which they came to be decided: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2009] FCAFC 8, 174 FCR 175 (Cadbury) at [10] per Emmett J, Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87 per Mason CJ and Brennan J.
18 As Callinan J said in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at [177], though the hypothetical bystander’s perception will not be as informed as that of the lawyer, especially a litigation lawyer, “the notional lay person should not be taken to be completely unaware of the way in which cases are brought to trial and tried”: cf. Lee v Cha [2008] NSWCA 13 at [44].
19 When applying the principle, two steps must be undertaken. First, that which might lead a judge to decide the particular questions before him or her other than on the merits must be identified. Secondly, and no less importantly, there must be “an articulation of the ‘logical connection’ between that factor and the fear that the judge might not apply proper judicial method (that is, merits based decision‑making) in resolving the controversy on the facts and the law”. Only then can the reasonableness of the asserted apprehension of bias be assessed. See Ebner at [8].
The submissions
20 The applicant submitted that in my judgment on the application to amend I “made findings on issues of fact in the proceedings and on credit”, her credit was “a significant issue”, “central to the ultimate resolution of the matter”, and that those findings gave rise to a “reasonable apprehension that a view had been taken of the Applicant, or her case, which would affect the Court’s determination of issues at a final hearing, within the tests stated by the High Court”. She also makes other submissions concerning the way in which hearing dates were fixed and about the docket system which, she contended, contribute to the apprehension.
21 The respondent, on the other hand, argued that I had not made any findings on issues of fact in the proceedings or on credit or expressed my reasons in such a way as to give rise to the relevant apprehension and was dismissive of the other points the applicant raised. Counsel took comfort, in particular, from the majority judgments in Southern Equities. In his judgment Olsson J contrasted earlier comments of the trial judge, in the proceeding in which the interim freezing order was made, with those said to justify disqualification. The earlier comments were carefully qualified by the trial judge as a prima facie view that a witness had given untruthful evidence and Olsson J said that these comments could not give rise to a reasonable apprehension of bias. By contrast, the findings said to justify disqualification “unequivocally indicated a conclusion that [the defendants] had not been witnesses of truth as to important matters; and that they had deliberately engaged in a course of highly improper conduct, contrary to their duty as directors”, where the same conduct would “plainly arise for consideration at trial” (at [63]). Moreover, the trial judge had made findings of fact on matters that were in issue on the pleadings and would be at issue in the trial (at [63]). Much of the argument in the present case revolved around whether I had made “absolute and unqualified” of “unequivocal” findings about credibility of the applicant. The respondent argued that, without them, the motion could not succeed.
22 Many of the applicant’s submissions were devoid of merit. On one question, however – the credit issue – they have troubled me. Whilst the question is finely balanced and the respondent’s argument is an attractive one, on close analysis I am driven to the conclusion that it should not prevail.
23 I will deal first with the unmeritorious points.
Referring extensively to evidence favourable to the respondent
24 In his written submissions counsel for the applicant, Mr King, put an argument (which was not developed orally) in these terms:
Further at [199] the Court referred extensively to evidence favourable to the Respondent with an interpretation that favoured its case but failed to have regard to the critical document, discovered late by the Respondent, and after the Applicant’s case had closed. Further the continuous perjorative [sic] contextual use of the word “she” throughout the Reasons with reference to the applicant is a further example of the relevant appearance.
25 The argument is difficult to understand. For a start, how could the applicant’s case have closed when it had not even opened? If the reference related to the case on the amendment application, the argument does not get any clearer. Perhaps the submission was directed at another paragraph, although Mr King did not suggest so in oral submissions, as it is manifestly a completely inaccurate characterisation of paragraph 199. I will deal with the two points separately.
26 Paragraph [199] reads:
To understand the claim and the resistance to it, it is necessary to refer to some of the documents upon which the claim is based. I note, however, that few of them found their way into evidence. Most were provided in a folder entitled “Applicant’s submissions” filed on 23 February 2010. Nevertheless, although not strictly before me, counsel for the respondent makes reference to some of them in her submissions, not taking the point that they were not in evidence. Accordingly, for the purpose of dealing fully with the applicant’s proposal, I have had regard to them.
27 I then proceeded to describe the substance of the documents. All I am able to deduce is that the submission is misconceived. Counsel did not identify the “critical document” which I am said to have failed to have considered and the significance of which I apparently failed to appreciate. If anything, the approach I took of having regard to documents to which the applicant referred in her submissions but failed to put into evidence, appears favourable to her, not the respondent.
Use of the female pronoun
28 The proposition that the use of the female pronoun can carry any pejorative connotation is frankly preposterous.
Making “other findings of fact on issues in the matter at trial”
29 The applicant also submitted that I made findings of fact (other than credit) on questions that will be at issue in the trial of this proceeding. In his written submissions Mr King put that these findings include “the interpretation of contentious documents created by the Respondent on issues for trial [made in isolation without the advantage of hearing the whole of the evidence]”. I do not know what to make of this submission in the absence of any specific examples from my reasons and Mr King failed to elaborate on this submission orally. She then goes on to rely on short extracts from five more paragraphs of my reasons, although, again, with no further explanation of how they support her submission. I will deal with each in turn.
30 The first relates to paragraph 196 of my judgment where I said:
[196] It is true that the Court is not required to determine the merits of the proposed new pleading. But, as the applicant bears the onus of showing why leave should be granted, the merits of the claim are not irrelevant. The Court would not grant leave, for example, if it were futile to do so: see, e.g. Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 (Haines), at 407G, comparing General Steel. Consequently, it was in the applicant’s interests to point at least to the availability of evidence to support the claim. This she has failed to do.No evidence was tendered to show that the applicant had an arguable case. In order to succeed she would have to prove, amongst other things, that the alleged falsehoods were published maliciously and that the publication resulted in actual damage: Palmer Bruyn & Parker v Parsons [2001] HCA 69; (2001) 208 CLR 388 (Parsons) at [1], [52], [114] and [154]. Actual damage means “special” or particular damage (not general damages) and “[a]s much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable”: Ratcliffe v Evans [1892] 2 QB 524 at 532 per Bowen LJ.
31 The applicant relies on the words: “This she has failed to do”. In context, this sentence does no more than express my conclusion that she did not discharge her onus of demonstrating that it would not be futile to grant leave. This was significant, as I explained in this paragraph, because it bore upon the exercise of my discretion in relation to amendment. I was making no finding of fact about an issue in the trial. A finding about the state of the evidence in one (interlocutory) proceeding simply cannot be a finding about an issue that will arise in another (final) proceeding. In any case, as I refused leave to amend to add this claim and the applicant’s appeal against that decision has been found to be incompetent, any finding of fact in relation to this part of her application cannot be an issue at the trial.
32 I therefore reject the applicant’s submission in relation to this paragraph.
33 The next paragraph is 241 where I said of a particular document:
Nevertheless, there is nothing in it to suggest malice. The passage quoted in [238] above is followed by this statement:
The steps we are taking today to protect the reputations of [X] and Michael include:
• Trying to have the offending material removed;
• Working to stop it being spread further;
• Supporting them in considering what action they would like to take against Vivienne Dye and her adviser.
We are extremely disappointed that it appears Ms Dye has chosen to fight this issue in the media before the matter is dealt with in the proper manner through the Human Rights and Equal Opportunities Commission.
(Emphasis added.)
34 The applicant relies, without further explanation, on my conclusion shown in bold above that there is nothing in the document to suggest malice.
35 This paragraph also appears in the section of my reasons where I deal with the applicant’s proposed amendments to plead injurious falsehoods where malice is an element of the cause of action. Specifically, I was dealing with the applicant’s written submission that documents discovered by the respondent in this proceeding make “it clear that it conducted a secret campaign to media outlets, other Banks and possibly major clients with a view to denigrating the applicant and exculpating itself” (at [236]). As this submission was not supported by any further submission or reference to particular evidence, I approached the submission on the basis that the applicant contended that malice was apparent on the face of the documents (at [237]). I reviewed the documents before me and concluded that none met this description. And in paragraph 241 I dealt with one of those documents, an email, which the respondent had raised in its submissions. Although I did not accept the respondent’s submission about this document in its entirety, I did conclude that there was nothing in the document to support an allegation of malice.
36 Again, the applicant’s submission that this is a finding of fact on a question that will be an issue at trial is misconceived. As the claim of injurious falsehood is not part of the applicant’s pleaded case, my finding that a document could not support an inference of malice cannot be an issue at a future trial.
37 Accordingly, I reject the applicant’s submission in relation to this paragraph.
38 The next paragraph is 242 where I said:
Some of the contents of this email are replicated in others (including in an email to a journalist). The criticism of the newspaper turned on its presentation of one side of the case. The concern of the email is with vindicating the reputations of the individuals against whom the applicant made allegations, not with harming the applicant. It is defensive in its approach, not vindictive. The applicant pointed to no other material upon which it intended to rely at the hearing to demonstrate the ulterior purpose relied upon in the proposed amended statement of claim. While in the process of attempting to vindicate the reputation of others, the applicant’s reputation might be harmed, on the material the applicant proffered on this application I cannot see how she could show that harm to her was the dominant purpose of the publications.
39 The applicant relies on the phrase “concern of the email”. There is no finding of fact here. Regardless, I reject the submission for the same reason as I do her submission in relation to paragraph 241 of my reasons.
40 The final matter in this category is paragraph 271 where I also dealt with matters relating to the proposed injurious falsehood claim. In doing so I made no findings of fact on issues in the matter at trial. This is what I said:
In addition, the respondent’s late discovery of certain documents does not provide a satisfactory explanation for the delay in applying for leave to make these amendments. The applicant’s statement of claim in the Supreme Court proceeding was filed on 15 April last year, two months before the principal proceeding in this case was first set down for trial, and more than nine months before the respondent was notified of the application. Not only that, but the applicant conceded in cross-examination that she was aware of the press articles on or around the dates of their publication (mostly in 2008). She must then be taken to have known of sufficient information to enable her to commence an action for injurious falsehood. The fact that she might later have become aware of additional false statements might have justified an application to amend based on those statements but it does not explain why she did not move on the basis of the information she had at the time she chose to sue for defamation. The applicant did not take the Court to any additional material that was discovered that, for example, might have supplied evidence to support malice, which she does not have to prove in the defamation suit. As I mentioned earlier, for malice she appears to be relying on inferences to be drawn from the statements.
41 The applicant particularly relied on the passage I have highlighted in bold. The applicant made both written and oral submissions about this paragraph. As it is unnecessary to do so, I do not propose to deal with that submission in detail. In substance, it is flawed by the same misconception that vitiates some of the applicant’s other submissions. In the final analysis, as this paragraph also concerns the applicant’s proposed amendments to add the injurious falsehood claim, any finding of fact I make in this paragraph cannot be a finding concerning an issue at a future trial of this proceeding.
42 Apart from mounting a collateral attack on my reasons, with which I do not intend to engage, the applicant’s final complaint on this subject is that in paragraph 271 of the judgment I rejected the applicant’s evidence on “this point” completely, “making an adverse credit finding against the Applicant”. In fact, I did nothing of the kind.
43 Counsel for the applicant referred to the applicant’s evidence that she had not been aware of the existence of certain documents until discovery which he put as occurring in 2010. He then submitted that “[t]o then find she must be taken to have known of facts the applicant swore she did not know, in circumstances where an objective examination of the lists of discovery of the respondent [apparently unread] corroborated that evidence, is a particularly problematic example in this case of the infraction...”.
44 The applicant said in cross-examination: “Yes, I have read the articles on the day they were published”. That was the concession to which I referred. It is scarcely a rejection of her evidence. Rather, by referring to the concession, it is implicit that I accepted her evidence, or at least part of it. I did not say I rejected anything else she had said touching on the question. The reference in the submission to the discovered lists is surprising. Although lists were tendered, I was never addressed on them (either here or on the hearing of the application to amend) and I fail to see how they support the submission that is now made. In oral argument counsel for the applicant drew my attention to a later passage in the transcript of her evidence to which I had not referred in my judgment. In the end, however, the submission does not rise above a collateral attack on the judgment.
45 The submission that “at trial, any submission about what the applicant knew and when she knew it will commence with the justifiable concern for those appearing for the applicant of that anterior appearance of impartiality”, like the submissions with which I have dealt above, overlooks the reality that injurious falsehood will not be an issue at trial. Nothing in what I said on this subject can be construed as an adverse finding on credit.
46 None of the matters raised in this category of complaint supports the recusal application.
The fixing of hearing dates
47 The applicant made a further submission arising out of the fixing of new hearing dates, which, she claims, also supports the submission of apprehended bias. The submission (without alteration) was in the following terms:
As a further ground Katzmann J relied on the fact of the fixture of the matter [as described in the affidavit of Ms Ryan sworn 16 July 2010] on 30 March 2010 as a consideration against allowing the amendments. In circumstances where the Court itself had decided on 23 March [see affidavit of Ms Ryan sworn 16 7 2010 filed in both the motions for recusal and leave especially paragraphs 16 to 25 and 31] unilaterally to fix the case [in the absence of the parties] and then did so in the absence of the applicant on 30 March this indicates an appearance of the possibility that the Court at an early stage had adopted an adverse view of the applicant and her case and the undesirability of wasting court time on it. The Court has adopted the appearance of the position that the Court’s own act is a sound reason to refuse the amendment [see for example Reasons 255]. It is submitted that, apart from being unfair, to rely on this ground when it was the Court itself which had proactively fixed the matter to create that ground of refusal of the amendment gives rise to the relevant apprehension. The applicant feels misled by these doubtless inadvertent actions by the Court. It is to be observed that there was no notice, or no reasonable notice, of the listing before the Court on 30 March 2010, at which the applicant did not appear. Further when the case came on that day it is submitted that the Court should have stood the matter over to allow the parties to be present.
48 I pause to observe that the way this submission is couched suggests that it was a submission upon which the applicant relied (or intended to rely) on the application for leave to appeal my judgment but, like several of the other arguments her counsel put on the motion, found its way also into the recusal application. Either that or the applicant mistakenly believed that the motion would be heard by another judge.
49 I return to the submission. This is what I said at paragraph 255 of my judgment:
In any event, I do not think the joinder is justified. The joinder of this new cause of action would certainly complicate the proceedings and prolong, if not delay, the trial. There is a prospect that the existing trial dates would have to be vacated – for a third time. The respondent should not be distracted from preparing for trial by the need to seek further particulars, administer interrogatories or interview additional witnesses. If the new cause of action were joined, an inquiry would be necessary into the motives of at least six individuals, none of whom it appears would be likely to be witnesses in the trial on the current pleadings.
50 The thrust of the applicant’s submission appears to be that the fixing of dates gives an appearance that I have prejudged the merits of her claim and, in effect, was in haste to dispose of it. The submission is completely without foundation. The problem is that the proceeding had been on foot for nearly two years – originating process having been filed in late July 2008 – and the case had been fixed for trial twice before with trial dates twice vacated. In those circumstances, I do not accept that a fair-minded observer might see my concern about delay and the potential loss of hearing dates as possibly indicative of prejudgment on my part of the merits of the applicant’s claim
51 The applicant relied on two affidavits of Sian Patricia Ryan, the solicitor at Turner Freeman with the carriage of the matter for the applicant. The first, sworn on 16 July 2010, was filed in support of this motion and set out the bare bones of a history of the proceeding. The second, also sworn on 16 July 2010, was filed in support of the applicant’s motion for leave to appeal my judgment. That affidavit, which I gave the applicant leave to file in this proceeding, purported to set out the full history of the proceeding from the time her firm entered an appearance on 3 February this year, although only paragraphs 16-25 and 31 of that affidavit were read on this motion. The paragraphs of this second affidavit that were relied on attached correspondence between the parties and my associate concerning hearing dates. Unfortunately, neither affidavit provided a complete picture of the circumstances in which the hearing dates were allocated. Consequently, the respondent read an affidavit of Elizabeth Anne Ferrier, the solicitor at Freehills, the respondent’s solicitors, with carriage of this proceeding, affirmed on 4 August 2010, attaching email correspondence between the parties and my associate and the transcript of the directions hearing when the dates were fixed.
52 Ms Ryan also offered an explanation for the applicant’s failure to appear at the directions hearing on 30 March 2010 at which the current hearing dates were fixed. In essence, her explanation was that, although she had received an email from my associate on 25 March notifying her of the listing, she did not check her emails and had not read that one until after the directions hearing took place. She also stated:
We did not anticipate that the fact that the matter had been fixed for hearing would be fixed for hearing would be a reason, or one of the reasons, that the Application to Amend should not be allowed, noting that the Application to Amend was served in February 2010. Had I been aware that this would be the case, I would have objected to her Honour’s Associate contacting the parties and appointing a hearing date prior to determination of the Motion to amend, as described above.
53 No application was made to cross-examine Ms Ryan. But I am surprised by these remarks. There was at the hearing of the notice of motion for leave to amend, much discussion of the principles in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, 239 CLR 175. Whether the applicants’ legal advisers did not appreciate that further delay and the prospect of vacating the third set of hearing dates were relevant to the question of whether or not leave should be granted, they should have. At all events, this evidence does not bear on the present motion.
54 The submission, itself, has two vices. In the first place, it is another collateral challenge to the judgment. In the second, it contains misleading and inaccurate statements. To understand why this is so it is necessary to turn to the evidence.
55 The hearing of the notice of motion for leave to amend took place over two days – 11 March and 30 April - after which further submissions were made in writing.
56 On 22 March Ms Ferrier sent a letter to my chambers copied to Ms Ryan, which is annexed to the second of her affidavits. The letter requested the proceeding be listed for directions:
for the sole purpose of securing hearing dates at the Court’s earliest convenience. Whilst we appreciate that the matter is listed before Her Honour on 30 April 2010 to deal with various interlocutory matters, the Respondent is keen to secure dates for hearing as soon as practicable in an attempt to avoid any further delay in this matter.
57 She went on to propose certain dates in August, September and October and noted that she had approached the applicant’s solicitors about the applicant’s availability at those times and was awaiting a response. There followed further emails between my chambers and the solicitors for both parties about suitable dates.
58 As the email correspondence shows, the applicant did not at that time, or later, object to the fixing of hearing dates and on 24 March 2010 Ms Ryan sent an email to my associate in the following terms:
Unfortunately, the dates nominated by Her Honour are not suitable to Mr King. However, Mr King is available from 29 September to 22 October 2010. I agree with Ms Ferrier in that the matter is unlikely to be completed in three weeks but we do not oppose an initial listing over that period.
(Emphasis added.)
59 On 25 March an email was sent from my chambers to both solicitors and counsel notifying the parties of the listing on 30 March for the purpose of fixing hearing dates. On that date the practitioners for both parties were told that:
Her Honour has listed this matter for directions at 9.30am on Tuesday 30 March 2010 for the purpose of setting dates for hearing. Her Honour has asked me to indicate that she is disposed to list the matter for hearing in September, in light of the history of proceedings to this point. She has asked if Mr King could consider his availability for a hearing in September.
60 On 29 March, the day before the directions hearing, my associate received an email from Mr King replying to the email of 25 March, thanking him and indicating he was available for 3 plus weeks from 27 September, which he said he preferred and also saying that he had “2 weeks available in early September 6 to 13th” (sic). This email was not copied to his opponent or his solicitor.
61 The time on this email was 9.40 am. The next email in the chain is from my associate. It shows an earlier time, 9.32 am. But it is clear from the context, including its position in the chain of emails, that it is in fact a reply to Mr King’s email. In it my associate stated:
An email setting out the dates when both yourself and Ms Eastman are available before the directions hearing tomorrow would be of assistance to Her Honour.
(Emphasis added.)
62 Mr King replied later that morning, copying in Ms Eastman (the respondent’s counsel), saying that he has been unable to contact her and that “[a]t this stage my best dates from September are 29th Sept to end October”.
63 I accept Ms Ryan’s explanation that she did not read the email until after the directions hearing, but it appears that Mr King did.
64 Further, the transcript of the directions hearing on 30 March makes it clear that the dates fixed on that day were fixed to accommodate Mr King’s available dates notified by email to my associate. A letter from Ms Ryan sent on 31 March to my chambers and copied to Ms Ferrier, apologised for the applicant’s failure to attend and concluded with the following words:
[w]e note that the allocated dates are suitable to the Applicant and we wish to extend our thanks to the Court and to the Respondent for accommodating our Counsel’s availability, even in our absence.
65 In summary, the applicant did not appear at the directions hearing on 30 March. No indication was given that she would be unable to appear. But the dates were fixed to suit the convenience of counsel for both parties. On 25 March my associate informed solicitors and counsel by email that the matter was listed on 30 March to fix hearing dates. On 29 March Mr King replied to that email and raised no objection. Neither party sought to defer consideration of suitable dates until after the decision on the leave application. No one suggested that it was premature to fix the hearing dates before the leave application had been resolved. On 31 March the applicant’s solicitors sent a letter by email to my chambers amongst other things indicating that the dates fixed for hearing on 30 March were suitable to the applicant. No application was ever made to vacate the hearing dates allocated on 30 March until after my decision on the leave application was handed down.
66 In all these circumstances, the submission that there was “no, or no reasonable notice” of the directions hearing is contrary to the evidence and the submission the applicant makes that the fixing of the hearing dates creates or confirms that there is a reasonable apprehension of bias on my part is insupportable. No fair-minded lay observer, informed of the facts, could reasonably conclude that my conduct in this regard might indicate that I might not bring an impartial mind to the hearing of the issues in dispute.
Listing arrangements
67 The applicant’s next submission (without alteration) is in these terms:
Further, it was the Justice’s associate who issued the listings to the applicant of the two notices of motion for leave to appeal, and dismissal thereof, before another Justice of the Court on Thursday 22 July 2010 [see the correspondence from Turner Freeman to Freehills]. For the office of the Justice to be involved in the fixture of the notice of motion for leave to appeal in apparent response to the respondent’s notice of motion for dismissal and expedition of the leave to appeal notice of motion, contrary to the usual administration of such matters through the registry [see the listing procedures on each of the notices of motion stating “Date and time to be notified by the registry”] gives a further impression of partiality by involvement in the appeal process listing. This has had the consequence of listing the appeal process before the recusal application before another Justice of the Court on a particular day without regard to the availability of the parties.
68 I pause only to make the following comments on this submission. The correspondence between Turner Freeman and Freehills said to support the contention that it was my associate who “issued the listings of the two notices of motion for leave to appeal, and dismissal thereof, before another Justice of the Court on Thursday 22 July” and was involved in fixing the date for hearing of the application for leave was neither identified nor put in evidence. The application for leave to appeal was, of course, heard by another judge. I can only assume that dates were arranged in consultation between the registry and Nicholas J’s associate, as is registry practice. How the hearing of the application for leave to appeal before the recusal application could conceivably have any bearing on the question of apprehended bias was never explained.
69 At the hearing of the notice of motion Mr King pressed the submission but said nothing more. It is baseless. It should never have been made, let alone pressed.
The docket system
70 The applicant contended that the docket system carries with it “an unjustifiable risk of sacrificing the interests of justice to efficiency goals and is itself flawed”. Her counsel submitted that this case was illustrative of the point, arguing that “overfamiliarity” (sic) with the facts of a case can be avoided if a different system, such as the State system, were in place. Mr King did not expand on his written submission in argument. It is unnecessary to say anything more about it at this point than that nothing in it supports the submission of apprehended bias.
The credit question
71 I now turn to the difficult question raised by the submissions dealing with credit.
72 The applicant asserts that I made adverse findings on her credit in paragraphs 93 to 97 and paragraphs 103 to 104 of my reasons. Although these paragraphs were grouped together in the applicant’s written submissions, this tends, in my view, to elide an important difference in the context of my reasoning in paragraphs 93 to 97 and 103 to 104.
73 The relevant part of the reasons is set out below with the passages upon which the applicant relies to support her application appearing in bold. First, there are paragraphs 93 to 97:
[93] In her affidavit filed in support of this notice of motion the applicant did provide an explanation for the addition of the claim of sexual assault, though not for any of the other amendments in this category. Her explanation was that she was “reluctant to include the matters in these proceedings” because she was concerned about “compromising the police investigation”. She never explained why or how she thought that “including” the allegation of sexual assault in these proceedings would or even could compromise that investigation. I am unable to accept the explanation.
[94] The police statement was made more than two and a half years after the conduct is alleged to have taken place, 13 months after the applicant had lodged her complaint with HREOC and nearly seven months after this proceeding was commenced. In cross-examination she affirmed that she had made a deliberate decision not to raise the matter at the time of the police investigation, claiming to have been so advised by her then legal advisors, and that she only decided to do so after the police suspended the investigation in December last year. This evidence is problematic because, as the applicant conceded in cross-examination, she had no hesitation raising some of the subject matter included in her police statement in her workers’ compensation claim. Her explanation for the apparent inconsistency was that she started the workers’ compensation proceedings after she had reported the matter to the police.
[95] In any case, however, a reluctance to compromise the police investigation would not explain the applicant’s failure to mention it in the HREOC complaint or to plead it in the statement of claim, as the complaint to the police was not made until after the HREOC complaint had been terminated and after this proceeding had commenced.
[96] In her police statement, possibly in response to a question from the police, the applicant gave a completely different explanation for her delay in complaining. This is what she said there:
“These allegations [referring to the allegations the subject of the present proceeding] did not include the sexual assault of me by [X] as I had not yet informed any person about it at the time…”
[97] She told the police she would not agree to settle her claim because that would have involved signing a deed of release and that “would have meant that I would never be able to report sexual assault to the Police”. This is a curious comment in view of what follows, namely, “I was also unaware that digital penetration amounted to sexual assault and I thought that ‘rape’ was only penetration with the penis. It wasn’t until I was making an affidavit in late December 2008 for the civil proceedings, regarding what had occurred, that I came to realise that a criminal offence had been committed”. That could explain why she did not report the conduct to the police, but it certainly does not explain why she did not give an account of the alleged conduct in her complaint to HREOC or in the statement of claim.
74 Neither in her oral or her written submissions did the applicant delineate with any care between the proposition that in these paragraphs I made adverse findings on her credit and the proposition that I there made findings in relation to an issue said to be fundamental at trial, the issue being described as either “the timing of a complaint of sexual misconduct” or not only the timing, but “when and if a complaint of sexual misconduct was first raised” (Emphasis added).
75 Nor did the applicant’s submissions spell out precisely how this issue of timing would arise at trial on the pleadings. In her submissions in reply, she made only the general claim that:
The nature of the complaint, being a contested complaint of sexual harassment and sex discrimination, makes the issue of credit a critical issue. The circumstances of when complaints were reported, how and to whom will be critical matters to be determined at trial. In circumstances where the Court has expressly preliminary views about the Applicant’s actions in reporting matters, and indeed more than “preliminary” views, there is the appearance of a real possibility of a reasonable apprehension of bias.
76 Again, it is not clear to me whether the applicant believes my disqualification to be justified solely because of what she says are adverse findings on her credit (perhaps reinforced by the fact that they relate to issues of a kind, reporting of sexual misconduct broadly, that will arise at trial) or also because of findings of fact on issues that are to be determined at trial, here described as “when complaints were reported, how and to whom”.
77 Before turning to the applicant’s particular submissions in relation to these paragraphs, it is important first to look at the context for my discussion of the applicant’s explanation for her delay. The context was the determination of whether the applicant had provided an explanation for belatedly seeking to amend her pleadings sufficient to satisfy the Court that it should exercise its discretion in her favour.
78 In her application for leave to amend, the applicant sought to add an allegation of sexual assault, involving digital penetration, which she said occurred on 9 June 2006 and which she reported to the NSW Police Service on 13 February 2009. Ultimately, I refused leave to add this allegation (at [114]) and my stated reason in relation to the issue of delay was that I was “not satisfied that the applicant has adequately explained the delay in including a sexual assault in the pleading” (at [110]). In these paragraphs I considered the applicant’s explanation for the delay and concluded that I could not accept it. In essence, the applicant submits that my failure to accept her explanation amounts to an adverse finding on her credit, as well, it seems, as a finding on what is said to be a “fundamental question at trial” requiring my disqualification.
79 The particular submissions are:
§ The final sentence of paragraph 93 is said to be “an unqualified rejection of [the applicant’s] sworn testimony”, “sufficient without more to warrant recusal”.
§ In paragraph 94, she points to the fact that I describe her evidence about her explanation as “problematic” and identify an “apparent inconsistency” and says that this concerns “a fundamental question of the timing of [the] complaint of sexual misconduct, … which will be critical at trial”.
§ In paragraph 95, the applicant again alleges that “there is the appearance of the rejection of her testimony, and worse still an actual finding against her on credit”.
§ With respect to paragraphs 96 and 97, my observations that the applicant gave a “completely different explanation for her delay” in her police statement, my description of something she said in that statement as “a curious comment” and my conclusion that her statement to the police that she was “unaware that digital penetration amounted to sexual assault” could not explain her failure to include the allegation in her HREOC complaint or her original statement of claim are said to “immediately” raise “questions of credit on the fundamental question at trial about when and if a complaint of sexual misconduct was first raised” and indicate that I thought her explanation “odd, or capable of being rejected”, enough to warrant my disqualification. The submission is also put that I rejected the applicant’s explanation to the police, “compounding the difficulty of appearance of the possibility of bias”.
80 Although the applicant’s submissions lump paragraphs 103 and 104 with the earlier paragraphs, they fail to deal with my remarks in their proper context. Before I come to them I need to say something of that context.
81 Section 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) limits the scope of an application to this Court (or the Federal Magistrates Court) for a remedy for unlawful discrimination to unlawful discrimination that is “the same as (or the same in substance as)” or that “[arises] out of the same (or substantially the same) acts, omissions or practices” as the unlawful discrimination raised in the earlier complaint to the Australian Human Rights Commission (to which I referred in my reasons under its former appellation of the Human Rights and Equal Opportunity Commission or HREOC) that must be made before commencing a proceeding in this (or the Federal Magistrates) Court. I considered the meaning of this provision in my judgment at [98] – [101], before reciting evidence given by the applicant in re-examination at [102] in which she said that she believed that the allegation of sexual assault was in fact included in her statement to HREOC (to which I referred in my reasons as “the HREOC statement”). For the sake of clarity and completeness I reproduce those paragraphs below:
[98] Section 46PO(3) of the AHRC Act limits the scope of any application to the Federal Court (or the Federal Magistrates Court) for unlawful discrimination:
(3) The unlawful discrimination alleged in the application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
[99] “Unlawful discrimination” is defined in s 3 of the AHRC Act in such a way as to capture sexual harassment and victimization as well as discrimination.
[100] In Travers v State of New South Wales [2000] FCA 1565 at [8] Lehane J said:
No doubt it was intended that a terminated complaint should not be used to launch an application to the Court, effectively bypassing the procedures provided by the legislation, alleging discrimination other than that of which a complaint had been made or covering a course of conduct substantially wider – or beginning substantially earlier – than that initially complained of. At the same time, it must be recognised that the terms of s 46PO(3) suggest a degree of flexibility (“or the same in substance as”, “or substantially the same”) and a complaint, which usually will not be drawn by a lawyer, should not be construed as if it were a pleading: Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 188. Indeed, the initial complaint may be in quite brief and general terms, the detail being elicited in the course of inquiries by the relevant Commissioner: Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 94. It may well be that the ambit of a complaint is to be ascertained, for the purpose of s 46PO(3), not by considering its initial form but by considering the shape which it had assumed at the time of its termination.
[101] The final shape of the complaint can be seen from the letter from the President’s delegate terminating it which is attachment A to the notice of termination and was annexed to the application which initiated this proceeding. There is no reference to digital penetration there or in the very lengthy HREOC statement, itself, or the supplementary statements.
[102] In re-examination this exchange occurred between counsel for the applicant and the applicant:
MR KING: It was suggested to you that in relation to the events of 9 June 2006, that you made a tactical decision not to advance that question in the present proceeding. Are you able to inform her Honour as to what has motivated you to bring that matter forward in this proceeding and why it wasn’t brought forward earlier?---Well, I think that it was brought forward earlier. I think it was brought forward at item 10 on page 30 [of the HREOC statement].
82 In paragraphs 103 and 104 I went on to say (the emboldened passages are those about which the applicant complains):
[103] This answer was inconsistent with the evidence the applicant gave in her affidavit and under cross-examination to the effect that she had, indeed, made a tactical decision not to include the matter in this proceeding. I find it very difficult to reconcile the two accounts. It is also completely at odds with what she told the police.
[104] In his supplementary written submissions Mr King argued that the new allegation was “consistent with the material contained in the HREOC complaint”. But consistency is not the test imposed by s 46PO(3). During oral argument Mr King contended that the event described in the HREOC complaint under the date 1 June 2006 was the same event the applicant now says occurred on 9 June 2006, the only difference (apart from the date) being that there is a fresh allegation of digital penetration. On a careful comparison of the police statement with the HREOC statement, there are significant differences between the two. Still, it is not implausible that the applicant was intending in the police statement to refer to the same occasion as that which she told HREOC occurred on 1 June but simply added to her description of it to the police. The omission of many of the details from her HREOC statement, including the allegation of digital penetration, may affect her credit. Yet, if she maintains that the incident is one and the same as that she related to HREOC, then s 46PO(3) does not prevent her from including it in these proceedings.
83 The applicant submits that paragraph 103 contains a “finding of inconsistency”, that this is “a classic rejection of the credibility of what the person has represented” and that “[t]his goes past appearance of bias”. Although the last submission might be construed as an allegation of actual bias, albeit one without any of the support the authorities say is necessary, as I said earlier, counsel for the applicant, Mr King, expressly disclaimed any such allegation and I will treat it as nothing more than a rhetorical flourish.
84 The applicant also argues that, by identifying “significant differences” between her police statement and her HREOC statement in paragraph 104, I have made it “forensically impossible for the tribunal of fact to reappraise the finding” and have foreclosed the possibility that the applicant might satisfactorily explain those inconsistencies. Again, it is not clear whether the submission is that I have closed my mind and would not accept any explanation that the applicant might give at a future trial for the inconsistencies, assuming as the applicant’s argument does that this is to be an issue at trial – which is an allegation of actual bias – or whether the allegation is a poorly framed one of apprehended bias. Again, I construe it as the latter, given Mr King’s disclaimer.
85 I turn first to the submission that in these paragraphs I made a finding of fact in relation to an issue said to be fundamental at trial, variously described as “the timing of a complaint of sexual misconduct” or not only the timing, but “when and if a complaint of sexual misconduct was first raised,” (emphasis added) or “the circumstances of when complaints were reported, how and to whom [which] will be critical matters to be determined at trial”.
86 As I was prepared to accept that s 46PO(3) of the AHRC Act was not a bar to the addition of the allegation, the discrete question I had to consider in these paragraphs was the applicant’s explanation for the delay in pleading the allegation that she was sexually assaulted on 9 June 2006. The question of her delay in pleading the allegation is obviously itself not a question of fact which will be an issue in the substantive proceeding. I made no finding of fact as to whether the alleged sexual assault occurred. Nor did the respondent challenge the applicant on this issue when she was cross-examined (see my reasons at [90] and [113]). Indeed I said in my reasons that I was prepared to accept that the incident was the same as one the applicant described in her HREOC complaint under the date 1 June 2006, although she did not there include the allegation of digital penetration.
87 Regardless, having disallowed the amendment because I was not satisfied of her explanation for the delay in pleading it, there can be no issues of fact to be determined at trial which relate to this particular allegation – whether a complaint about it was made, when, how or to whom it was made. The confusion in the submissions can then be seen to arise from the fact that the issue said to arise at trial is put too broadly as one to do with complaints of ‘sexual misconduct’ generally. I can only reiterate that here I was dealing only with one specific allegation of sexual assault involving digital penetration.
88 Despite this, in her submissions in reply the applicant stated:
… the Statement of Claim has always contained an allegation that one of the alleged perpetrators had attempted to have sex with her on at least two occasions, without her consent. Those complaints are at the centre of the Applicant’s case. In other words, the evidence relating to the sexual assaults will be before the Court in any event.
89 This submission is misleading. It is also disingenuous. It is true that the applicant’s pleaded case has always included an allegation that an employee of the respondent attempted to have sex with the applicant without her consent on two occasions (not “at least” two occasions). But it was never argued for the applicant that these allegations of attempt related to, or encompassed, the sexual assault, which was said to involve digital penetration and which the applicant told police occurred on 9 June 2006. If that were the case, it is difficult to see why the applicant sought leave to add the allegation. Certainly, nothing the applicant said in her evidence on the leave application or that was put on her behalf in argument at the time suggested that the amendment was strictly unnecessary and was only proposed for more abundant caution.
90 In the written submissions the applicant contended that I had rejected her explanation to the police. That is not so. Rather, I simply pointed out (in paragraph 97 of my judgment) that the account given to the police could explain the delay in reporting it to them but would not explain the failure to include it in her complaint to HREOC or in the statement of claim, both of which were filed before the applicant went to the police. In any event, as a result of my earlier decision, the applicant’s delay in complaining about the alleged sexual assault will not be an issue in the trial. In fact, I made no finding on any issue in the trial.
91 The next question is whether I made adverse credit findings or evinced the expression of clear views about the applicant’s credit.
92 Counsel for the applicant relied on the decision of the High Court in Antoun v R [2006] HCA 2, 224 ALR 51 (Antoun), particularly the judgment of Callinan J. Although, as he argued, Antoun did concern a judge “crossing the line in the course of an interlocutory application”, the facts are readily distinguishable.
93 Antoun related toa criminal trial before a judge alone in the NSW District Court. It was a case where apprehended bias by reason of prejudgment was found to have required the judge’s recusal. The apprehension arose from the fact that the judge had rejected counsel’s foreshadowed no case submission before hearing argument and because he raised the question of revoking bail, without an application from the Crown and without adverting to the considerations to which he was bound to have regard under the relevant legislation.
94 On any view of the matter the facts of the present case are far removed from the facts in Antoun. Here, I made no pre-emptive judgment. Neither, as counsel for the applicant argued, did I reject her testimony or make “an actual finding against her on credit”. I made no finding that she was dishonest or that she had behaved improperly. In fact, I expressed no clear view about the applicant’s credit. The applicant’s submissions elide credit issues and credit findings. Although I did point to problems in the evidence, I did not seek to resolve them. I referred to differences between the explanation in her affidavit, the account she had given to the police and the evidence she gave in re-examination in the context of providing my reasons for why I was not disposed to exercise my discretion to grant leave. The applicant did not attempt to explain how the differences came about or to reconcile the inconsistencies. Importantly, neither did I. I merely reflected on the state of the evidence. The only conclusion I drew from the inconsistencies was they did not assist her case on the leave application. My statement that “I am unable to accept her explanation” should be read with the sentence that preceded it and with all of the reasoning on this issue. In context I believe it is properly characterised as no more than a conclusion about whether the applicant had discharged her onus of proving that she had a satisfactory explanation for the delay in making the allegation in this proceeding. That is made particularly clear in paragraphs 107-111 of my reasons to which counsel for the applicant did not refer. The hypothetical observer would be expected, at least, to have read the whole of the judgment. A reasonable fair-minded observer would not cherry-pick statements and consider them in isolation; rather, s/he would have regard to the context in which they were made and the issues to which they related, for to do otherwise would be neither fair nor reasonable. As the majority observed in Johnson at [14],“the hypothetical observer is no more entitled to make snap judgments than the person under observation”.
95 I am therefore unpersuaded that I made clear findings or even expressed clear views about the credit of the applicant. Ultimately, however, and not without some difficulty, I have come to the conclusion that that is insufficient to dispose of this application. I do not think that the passage in Livesey’s case to which I referred earlier in this judgment was intended to provide a threshold that must be met before the test for apprehended bias is to be applied and the views of the fair-minded observer considered. Rather, the Court was making an observation about the facts of the matter before it where two judges on an appellate court had expressed clear views about the credit of a key witness in an earlier judgment. Similarly, the statements in Southern Equities to which I referred in paragraph 21 above should not be elevated to statements of general principle that unless an interlocutory judgment contains a finding of untruthfulness in unequivocal or unambiguous language, a judge is bound to hear the trial. Each case turns on its facts including the language deployed. The fact that the Court was divided in that case also tends to underscore the scope for division of opinion on the subject.
96 Moreover, it is certainly arguable that there is a fine line between making a finding on credit and identifying problems with credit – perhaps too fine a distinction for a lay observer to draw. Unfortunately, none of the authorities to which I was taken in argument or that I have found myself concern facts sufficiently comparable to those with which this case is concerned.
97 Having regard to the tentative nature of the views to be attributed to the fair-minded observer, after much anxious deliberation I am persuaded that in the present case, which could turn on the applicant’s credit, my reflections on the subject, albeit in a different context, might be sufficient to tip the balance. Furthermore, despite what I think or intended, a fair-minded observer might reasonably conclude that my inability to accept the applicant’s explanation for delay does amount to the expression of an adverse view about her credit, especially in the light of the inconsistencies in her accounts to which I referred, and might therefore infer that I might approach the trial having already formed an adverse view of her credit generally. The close analysis based on context might be too refined for a layperson. In those circumstances, the prudent course is for me to recuse myself.
98 I would add that I do not think for one moment that a fair minded observer would conclude that I would not bring an impartial mind to the resolution of the issues in the substantive proceeding. And, for what it is worth, I would stress that I have a completely open mind about them. But the test does not depend on what a fair-minded observer would think. Nor does it depend on my actual state of mind.
99 As the High Court said in Livesey at 294-5:
In a case such as the present where there is no allegation of actual bias, the question whether a judge who is confident of his own ability to determine the case before him fairly and impartially on the evidence should refrain from sitting because of a suggestion that the views which he has expressed in his judgment in some previous case may result in an appearance of pre-judgment can be a difficult one involving matters “of degree and particular circumstances may strike different minds in different ways” (per Aickin J in Shaw). If a judge at first instance considers that there is any real possibility that his participation in a case might lead to a reasonable apprehension of pre-judgment or bias, he should, of course, refrain from sitting.
(Footnote omitted.)
Conclusion
101 The question of costs should be reserved.
|
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann. |
Associate:
Dated: 23 August 2010
