FEDERAL COURT OF AUSTRALIA

Comcare v John Holland Rail Pty Ltd (No 3) [2011] FCA 164

THE COURT ORDERS THAT:

1.    The respondents’ notice of motion of 23 February 2011 be dismissed.

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.

REASONS FOR JUDGMENT

introduction

1    This is a civil penalty proceeding brought by the applicant (“Comcare”) under the provisions of the Occupational Health and Safety Act 1991 (Cth) (“the OH&S Act”). Comcare seeks declarations of contravention of s 16(1) of the OH&S Act, together with an order that the respondents (collectively “John Holland”) pay pecuniary penalties to the Commonwealth.

2    The provisions of s 16 of the OH&S Act relied upon by Comcare are in the following terms:

Duties of employers in relation to their employees etc.

(1)    An employer must take all reasonably practicable steps to protect the health and safety at work of the employer's employees.

Note: An employer who breaches subsection (1) may be subject to civil action or a criminal prosecution (see Schedule 2).

(2)     Without limiting the generality of subsection (1), an employer breaches that subsection if the employer fails to take all reasonably practicable steps:

(a)     to provide and maintain a working environment (including plant and systems of work):

(i)     that is safe for the employer's employees and without risk to their health; and

    (ii) that provides adequate facilities for their welfare at work

…

(e)    to provide to the employees, in appropriate languages, the information, instruction, training and supervision necessary to enable them to perform their work in a manner that is safe and without risk to their health.

3    This proceeding has a long history of interlocutory applications including applications dealt with in the following reasons for judgment: Comcare v John Holland Rail Pty Ltd [2009] FCA 660 (Jessup J); John Holland Pty Ltd v Comcare [2009] FCAFC 127 (Sundberg, Edmonds and Tracey JJ); Comcare v John Holland Rail Pty Ltd [2010] FCA 981 (Bromberg J); Comcare v John Holland Rail Pty Ltd (No 2) [2010] FCA 1516 (Bromberg J).

4     The proceeding is listed for a 14 day trial commencing next week. By a notice of motion dated 23 February 2011, John Holland seeks an order that I recuse myself from any further conduct of this proceeding. The notice of motion was heard on 24 February 2011 and I reserved my judgment.

5    John Holland do not allege actual bias but assert apprehended bias. Against a background which I will later outline, John Holland contends that by reason of communications which occurred between Comcare’s solicitor and my associate in relation to the convening of a mention hearing, I might not bring an impartial mind to the resolution of the question of John Holland’s alleged breach of s 16 of the OH&S Act. In addition and as a stand alone ground, John Holland rely upon a statement I made at the outset of the hearing of this application as a basis for disqualification.

6    For the reasons that follow, I have determined that apprehended bias is not made out and that I should not recuse myself from the further conduct of the proceeding.

judge’s statement

7    The proceeding was listed for a mention at 9.30 am on 23 February 2011. Mr Rozen appeared for Comcare. Mr Wyles SC appeared with Dr McEvoy for John Holland. The mention hearing was listed together with other matters on a relatively busy morning in which two other matters were listed for directions and a fourth for a hearing of a notice of motion.

8    When the proceeding was called on, counsel for Comcare indicated that there were some procedural matters in dispute between the parties and that it would be beneficial that some assistance be provided by me in sorting those matters out in advance of the trial with a view to ensuring that the trial proceeded as smoothly as possible. Counsel began to outline three matters which he sought to bring to my attention. After outlining the first matter, counsel for John Holland raised an objection the detail of which is of no relevance to this application. I ruled against that objection. At that point, counsel for John Holland advised that he had an application to make that I should recuse myself from the further conduct of the proceeding. A notice of motion together with a supporting affidavit were filed in Court with my leave. Having inquired as to the convenience of counsel, I indicated that I would hear the application the following morning at 10.15 am and I adjourned the further hearing of the mention.

9    When this application was called on 24 February 2011 and prior to receiving any submissions, I made the following statement which I will refer to as the Judge’s Statement:

I have a copy of the respondent’s submissions provided to me last night. That is, the submissions in support of the application that I should recuse myself from the further conduct of this proceeding. At paragraph 63 of those submissions the following is said and I quote:

The docket judge when the parties next came before him on 23 February 2011 did not inform the respondents of what had been said to his associate by Comcare in the communications made on 11 and 14 February 2011. There having been private communications, the docket judge was required as a matter of fairness to give a full account of precisely what had been said in the course of those private communications –

and the paragraph refers to Re JRL and R v Fisher.

The paragraph asserts that as at 23 February 2011 I was aware that there had been communications between my associate and the solicitor for the applicant which had occurred without the prior knowledge or consent of the respondents or their solicitors. The submission, it seems to me, further asserts that those conversations dealt with matters of substance, that is, information or allegations which are material to the substantive issues in the litigation.

I was not as at 23 February 2011 aware that any conversation, without the prior knowledge and consent of the respondents, had taken place between my associate and the solicitor for the applicant relating to any matter let alone a conversation that dealt with matters of substance.

On 14 February 2011, shortly before my associate had communicated with the parties by email of that date, I determined that a mention should be convened. I did so on the basis that I was informed by my associate that he had spoken to the applicant’s solicitors and was told that there were issues that the applicant wished to raise at a mention hearing and that my tentative availability had been communicated, but that the parties had not yet agreed a convenient date and that the applicant was pressing for a date. I do not recall that the issues that were sought to be raised were identified to me. I instructed my associate to send an email to the parties setting out my available dates and seeking their agreement on a convenient date with my usual qualification that if no agreement was reached, the Court would determine a convenient date.

I was not aware at that time nor aware prior to reading yesterday the affidavit filed in support of the motion that the respondents were, at any time, opposed to the matter being listed for mention. No communication of that kind was made to the Court so far as I am aware. I had assumed that if there had been any opposition to a mention

hearing being convened that would have been communicated to my associate.

Having read the affidavit in support, I asked my associate to inform me of the content of any conversations he had with the solicitor for the applicant relating to the mention hearing. He has advised me that there were two conversations.

The first occurred on 10 February 2011 and the content of it is recorded in a file note. The second conversation occurred on 14 February 2011, but no file note is available. The file note of the conversation of 10 February 2011 is in the following terms. It is dated 10 February 2010, but I’m advised that that is an error. It sets out the names of the parties and it identifies a conversation with Mark Branagan of Thomsons Lawyers and it provides his contact phone number. The note says and I quote:

Comcare listed for trial 7 March.

May need another directions hearing, but an informal request. Canvassing whether any dates may be available next week.

I indicated it is his Honour’s preference that parties confer and work out timetabling and only if there are disputes of substance, then an application for directions be pursued. I indicated there was an appeal hearing next Wednesday and, otherwise, the other days may be possible pending his Honour’s and the court’s other commitments.

He said he would confer with OS

[which I take to be and my associate tells me is “other side”]

and get back to me.

As to the conversation of 14 February 2011, I am advised by my associate, Mr Coyne, that the applicant’s solicitor, Mr Branagan, introduced himself and said words to the effect, “That we still need a date for a mention.” Mr Coyne asked whether he had contacted the other side. Mr Coyne recalls that Mr Branagan said he had, but can’t recall whether he was told anything about the content of that communication. Mr Coyne asked why a mention was needed and was told there were various issues going to the running of the trial. Mr Branagan listed about three matters by subject matter only. Mr Coyne thinks one of those subjects listed was the subject of discovery, but he is not sure. He can’t recall the nature of the other subject matters that were listed. Mr Coyne told Mr Branagan that he would confer with the judge and advise the parties.

I should state two further matters. Firstly, there is a standing instruction in my chambers that communications between my chambers and practitioners occur in accordance with the approach set out at paragraph 39 of the decision in R v Fisher. That decision is provided to my associates at the commencement of their engagement. They are asked to read it and do so. Secondly, I was not aware when yesterday’s mention commenced of what issues were to be raised. I had one issue in

mind to raise and that was that the trial is listed for 14 March 2011 which is a public holiday.

Now, do the parties seek any time to digest those matters or are you prepared to make your submissions now?

10    Counsel for John Holland asked that the matter be stood down for 15 minutes and it was. On resumption, counsel for John Holland indicated that his clients pressed their application.

evidence

11    The evidence adduced by the parties comprised of exchanges of correspondence and emails between John Holland’s solicitors Herbert Geer, and Thomsons Lawyers, the solicitors for Comcare. Some of those emails were copied to my associate as I later identify. There are two emails forwarded by my associate to the practitioners.

12     By letter of 7 February 2011, John Holland’s solicitors wrote to Comcare’s solicitors, raised the issue of discovery and advised that a number of documents had been identified and that there were approximately 15 document storage boxes available for inspection. The letter also attached a document headed “Respondents’ Fourth Memorandum of Evidence” which notified that John Holland anticipated calling two additional witnesses and set out outlines of their evidence. By letter of 8 February 2011, Comcare’s solicitors replied complaining of the lateness of the further discovery and requiring that relevant documents be identified. The letter also complained as to the lateness of the outlines of evidence provided. By letter of 10 February 2011, John Holland’s solicitors replied to explain their position in relation to the further discovery and also in answer to the complaint made of the further outlines of evidence.

13     By email sent on 11 February 2011 at 12.36 pm Comcare’s solicitors attached a letter of 11 February 2011 in response to the letter of 10 February 2011 to which I have just referred. The letter addressed the discovery issue earlier raised, complained of the suggestion that Comcare should review the large volume of unidentified material in the storage boxes, criticised what it regarded as John Holland’s refusal to provide a list of all relevant documents and said that it again requested that John Holland’s solicitors identify the relevant documents. The letter dealt further with the outlines of evidence and took issue with the explanation provided by John Holland’s solicitors. In addition, the letter outlined a further basis for objection as to John Holland’s intended reliance on the evidence foreshadowed. At the end of the letter and under a heading “Further actions”, the letter stated:

As it is apparent that you are unwilling to accept our proposals or objections relating to ongoing discovery and the Outlines of Evidence, we propose to return to the Court for directions on these issues from Bromberg J.

We have notified His Honour’s Associate of our request for listing next week. Can you please notify us of a convenient date?

The email which attached this letter also said:

We have spoken to Bromberg J’s Associate who has requested that the parties nominate convenient dates for the hearing. Our preferences are Tuesday 15 February and Thursday 17 February 2011. Please advise of your preference.

14    The next relevant written communication was an email sent to the practitioners by my associate on 14 February 2011 at 12.46 pm to the following effect:

Dear Practitioners,

I have been contacted by Mr Branagan seeking the matter be listed for mention. The following dates are available this week and next week for that purpose:

Thursday 17th February 2011

Friday 18th February 2011

Wednesday 23rd February 2011

Thursday 24th February 2011

Friday 25th February 2011

The matter will be listed for 9.30 am. Please advise which of the above dates is convenient to you and your Counsel.

In the absence of agreement by 12.00 pm tomorrow the Court will list the matter for mention on a date to be advised.

Regards,

15    In response to that email and at 12.57 pm Mr Branagan (of Comcare’s solicitors) emailed my associate and copied John Holland’s solicitors to confirm that 17 and 18 February 2011 were convenient times for Comcare. By an email from Chris Hartigan (of John Holland’s solicitors) sent that afternoon at 4.58 pm to Mr Branagan, Mr Hartigan attached his letter of 14 February 2011 and indicated that John Holland’s counsel was available on 23 February 2011 “in relation to your foreshadowed application”. He asked Mr Branagan to confirm whether that date was agreeable. In the letter of 14 February 2011, Mr Hartigan dealt with the issue of discovery maintaining the position earlier put and rejecting Comcare’s position put in its letter of 11 February 2011. He dealt also with the further outlines of evidence and further explained John Holland’s position and indicated that it would not withdraw the outlines of evidence of the two additional witnesses foreshadowed. After dealing with an issue about the Court Book, the letter dealt with what it identified as the ‘proposed hearing’ as follows:

Proposed “Hearing” (email 12.36 pm on 11 February)

We understand from your letter and the covering email that you have been in contact with Justice Bromberg’s associate, and that it is suggested that there be a hearing (presumably of the application you foreshadow). You have engaged in ex parte communications with his Honour’s associate to arrange a hearing of applications (or complaints you have written to us about). You have not put on a Notice of Motion with supporting material as is required by the Federal Court Rules and as has been the practice in this matter to date.

At the very least, your ex parte contact was required to be in writing copied to us. Only then could our clients be in a position to respond.

As a matter of urgency we require that you provide our clients with a detailed affidavit dealing with the following matters:

•    When you, or if not you, who it was from your office (or from your firm, or otherwise) who contacted the chambers of Justice Bromberg and how many ex parte contacts have been made (i.e. when those contacts were made and how);

•    precisely what you, or if not you, the other person/s said to Justice Bromberg’s associate;

•    precisely what was said by Justice Bromberg’s associate.

We request that this material be provided to us before the matter comes before his Honour on 23 February 2011. Our clients expressly reserve all their rights. For the court to agree to a hearing you must have apprised it of the applications your client seeks to make and the reasons for seeking to do so. You have not told us what was said to his Honour, by you, via his associate.

Your decision to make ex parte contact with no notice to our clients negates the appearance of the court bringing an impartial and unprejudiced mind to the resolution of the questions arising for determination in this case.

Our clients recognise that in all litigation there is need for sensible pragmatism. However, the normal course is for a party seeking to have an application heard, to issue the application and seek a date. The other party is then fully apprised of the material upon which the court has acted in determining to allocate a time for hearing. This normal course was not followed by you.

If it is proposed that an application is to be made to the Court, the affidavit should also state the material relied on in support of the application. Needless to say, we also expect that a notice of motion would be filed and served in accordance with the Federal Court Rules, clearly outlining the orders sought.

16    There were then four email communications between the practitioners dealing with the availability of counsel. The fourth email in that chain was sent by Mr Branagan to Mr Hartigan confirming that Comcare’s counsel was available for a directions hearing on 23 February 2011 and that accordingly Comcare agreed with the date proposed in an earlier email from John Holland’s solicitors. On that day, 15 February 2011, Mr Branagan emailed my associate (and copied John Holland’s solicitors) stating “we confirm” that the parties have agreed to a listing on 23 February 2011 at 9.30 am.

17     Also by email of 15 February 2011 sent at 12.39 pm, Mr Branagan forwarded his letter of 15 February 2011 to Mr Hartigan. The letter stated:

I refer to your letter dated 14 February 2011.

For your information, I rang Justice Bromberg’s Associate on Friday, 11 February 2011 and asked him to nominate available dates for a directions hearing in advance of the trial.

I specifically did not disclose the purpose of the directions nor did I specify making any application, refer to any issues in dispute or the reason for listing other than to say that there were some outstanding issues that would require directions prior to the trial.

The Associate requested that I seek your advice as to a convenient date and this was done in my letter to you dated 11 February 2011. In that letter we confirmed that we would be seeking directions from Justice Bromberg and requested your advice as to a convenient date.

As you did not respond to our request, I rang the Associate at 12.08 pm on 14 February 2011, confirmed that there was no response and requested that the Court nominate available dates for the parties. Our correspondence and the Court’s email of 14 February 2011 offering alternative dates confirmed that no hearing date was or had been set by the Court.

Telephone contact with the Judge’s Associate to ascertain an available date for directions is entirely appropriate and does not constitute improper conduct. Your assertions that there has been any attempt to undermine the impartiality of the Court are absurd and do not warrant further comment.

Further, we note that you are seeking to file Outlines of Evidence and provide late discovery in breach of previous Court orders. If you propose to pursue these matters (to which we object), it is a matter for you to file any notice of motion and affidavit material so as to obtain permission of the Court.

We will of course provide appropriate documents such as a notice of motion and affidavit material if we consider that it is necessary to pursue formal orders as required by the Federal Court Rules.

We confirm that the Court has listed directions on 23 February 2011 at 9.30 am.

18    By letter of 16 February 2011, Mr Hartigan wrote to Mr Branagan referring to his letter of 15 February 2011, indicating that he did not understand why a directions hearing was sought if the contents of the previous letter were to be taken to indicate that Comcare did not intend to seek orders from the Court. The letter stated that if Comcare did not propose to put on a notice of motion, John Holland’s solicitors proposed emailing my associate that Comcare did not intend to seek any orders and in those circumstances requesting that the directions hearing be vacated.

19    By a letter of 16 February 2011 emailed to Mr Hartigan at 3.02 pm, Mr Branagan replied in the following terms:

We refer to your letter dated 16 February 2011.

The matters upon which the Applicant proposes to seek directions from the Court include:

1.    Whether the Respondents intend to persist with the Notice of Motion dated 14 October 2010?

2.    If ‘yes’ to 1, when the Court will hear and determine that application?

3.    The sequencing and scheduling of witnesses;

4.    Whether the Respondents still intend to ask the Court to conduct a view, and if so, of what?

5.    If ‘yes’ to 4, when such a view will take place?

6.    Any other matters the Court considers to be relevant.

In the circumstances, we do not consider that it is necessary for the Applicant to file and serve a Notice of Motion in relation to the Directions Hearing.

It is a matter for the Respondents to determine whether they wish to file a Notice of Motion seeking directions as to the late filing and service of the Outlines of Evidence of Ms Prince and Mr Kiesey.

We consider that it is in the interests of the parties and the Court for these matters to be resolved prior to the commencement of the trial.

Yours faithfully

20    By a letter in response dated 16 February 2011 sent by facsimile, Mr Hartigan responded and dealt with the numbered points in Mr Branagan’s letter of 16 February 2011. In relation to item 6 “Any other matters the Court considers to be relevant”, Mr Hartigan said:

    Any other matters the Court considers to be relevant? What do you mean by this? Has the Court indicated to you that it wishes to raise other matters? You did not indicate that it had done so in your letter of yesterday. Please clarify how this “matter” has originated.

Mr Hartigan asserted that it was now clear that there was no need for a directions hearing and that it would be a waste of time and resources for it to proceed. Mr Hartigan said:

It is not at all clear why you rang Justice Bromberg’s associate last Friday and asked him to nominate available dates for a directions hearing in advance of the trial.

Please confirm that it is in order for us to communicate with Justice Bromberg’s chambers in the terms we outlined in our letter to you of this morning.

21    By email of 17 February 2011 sent at 11.59 am Mr Branagan forwarded a letter of 17 February 2011 responding to that letter. He stated that he did not agree with Mr Hartigan’s proposed communication with my Chambers. The letter went on to say that if John Holland intended to persist with its desire to rely on the evidence of the additional proposed witnesses, which was asserted to be contrary to orders of the Court, that the permission of the Court to do so should be obtained.

22     On 18 February 2011, Herbert Geer contacted my associate in an email copied to Mr Branagan, noted that an ex parte judgment I delivered on 20 October 2010 in this matter was not available on transcript and asked for a copy of my judgment.

23    On 18 February 2011, Mr Hartigan wrote to Mr Branagan referring to Mr Branagan’s letter of 17 February 2011. He said that he remained of the view that there was no need to trouble the Court on 23 February 2011. The letter further dealt with John Holland’s position in relation to the two additional witnesses foreshadowed.

legal principles

24    As Redlich and Dodds-Streeton JJA said in R v Fisher [2009] VSCA 100 at [20]:

It is an undoubted principle that a judge’s decision should be made on the basis of the evidence and arguments in the case, and not on the basis of information or knowledge which is acquired out of court.

In support of that proposition their Honours referred to Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Limited (1994) 119 ALR 206 and, in particular, to the judgment of Mason CJ and Brennan, Deane, Dawson and Gaudron JJ at [210] who described the principle as an aspect of ‘the rule against bias’. In that regard, their Honours posed the relevant question as “whether, in the circumstances, the parties or the public might entertain a reasonable apprehension that information or knowledge which has been independently acquired will influence the decision”.

25    Where consideration is given to whether a judge should recuse him or herself for apprehended bias because some information or knowledge has been independently acquired, the question posed in Re Media Entertainment and Arts Alliance should be borne in mind in the application of the well established test for apprehended bias of whether:

a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide: Ebner v Official Trustee (2000) 205 CLR 337 at [6].

26    In Ebner Gleeson CJ, McHugh, Gummow and Hayne JJ identified that the “question is one of possibility (real and not remote), not probability”: at [7]. Their Honours acknowledged at [8] that the apprehension of bias principle admits of the possibility of human frailty and that its application is as diverse as human frailty. Their Honours continued:

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.

27    In Johnson v Johnson (2000) 201 CLR 488 Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at [12] explained that the hypothetical reasonable observer of the judge’s conduct is postulated on the test for apprehended bias “in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues”. Their Honours continued:

At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”. (citation omitted)

28    Their Honours went on to describe the attributes of the fictional observer and stated at [13] that:

Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. (citation omitted)

29    In identifying the attributes of the fictitious bystander, Kirby J at [53] said:

The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. 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. (citations omitted)

30    In Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd & Anor (2006) 229 CLR 577, Kirby and Crennan JJ at [111] referred to the characteristics of modern litigation by reference to the observations made in Johnson v Johnson and emphasised the importance of bearing in mind those characteristics in the application of the second step identified in Ebner, that is in assessing the logical connection between a matter complained of and any deviation from deciding a case on the merits.

31     In Kwan v Kang & Ors [2003] NSWCA 336 the New South Wales Court of Appeal stated at [77] that:

Despite the importance of the appearance of justice being seen to be done, there is a strong need for courts to apply realistic criteria in considering whether a reasonable apprehension of bias has been established.

 The Court continued at [83]:

There must be a reasonable apprehension on the part of the fictitious observer that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she might not alter that conclusion, irrespective of the evidence or arguments presented to him or her (see the approach expressed in Laws v Australian Broadcasting Tribunal [(1990) 170 CLR 70] at 100, varied in the light of Johnson v Johnson).

32    Lastly, in setting out the relevant principles, it is necessary to bear in mind what Kirby J in Johnson v Johnson referred to as the salutary warning given by Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 that:

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.

33    That warning is confirmed by Ebner at [19]-[20] including where at [20] the majority say:

In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the mater of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.

discussion

The Judge’s Statement

34    At the outset of its submission, John Holland contended that I should recuse myself on the basis that I had made the Judge’s Statement. This was put as a stand alone proposition. The basis for it was that the Court had become a witness on the application and that the interests of justice therefore dictated that the judge should recuse him or herself. John Holland relied on two authorities of the English Court of Appeal – Howell and Ors v Millais and Ors [2007] EWCA Civ 720 and Locabail (UK) Limited v Bayfield Properties Ltd and Anor [2000] QB 451.

35    In Locabail at [26], the Court said:

What disclosure is appropriate depends in large measure on the stage that the matter has reached. If, before a hearing has begun, the judge is alerted to some matter which might, depending on the full facts, throw doubt on his fitness to sit, the judge should in our view inquire into the full facts, so far as they are ascertainable, in order to make disclosure in the light of them. But, if a judge has embarked on a hearing in ignorance of a matter which emerges during the hearing, it is in our view enough if the judge discloses what he then knows. He has no obligation to disclose what he does not know. Nor is he bound to fill any gaps in his knowledge which, if filled, might provide stronger grounds for objection to his hearing or continuing to hear the case. If, of course, he does make further inquiry and learn additional facts not known to him before, then he must make disclosure of those facts also.

36    The inquiry into the facts that I made together with the disclosure made at the commencement of the hearing seems entirely consistent with what Locabail suggests a judge should do in the circumstances that prevailed in this case. Rather than supporting a basis for disqualification, Locabail supports the proposition that a judge’s statement was both necessary and appropriate.

37    Locabail is referred to and relied upon in Howell. Howell is an extraordinary case in which the behaviour of the judge in question was unusual, to say the least. Shortly prior to the hearing of a hotly contested application, the judge and the solicitors for one of the parties to the litigation had held discussions about the employment of the judge by that firm. Those discussions ended unhappily and the judge communicated his disappointment in no uncertain terms to the partner with whom he had held negotiations. The judge was asked by letter to recuse himself and did not. An application was then made in open court. The judge did not make a statement at that point or later. In support of the recusal application, the partner with whom the judge had negotiated was called to give evidence. The Court of Appeal held that the judge was wrong to refuse to recuse himself and relied upon a number of factors. The judge had cross examined the partner “as if he, the judge, was fighting his own case”: at [19]. Further, in the context of final submissions, the judge engaged in exchanges with counsel including by putting facts not previously raised. Of that conduct, the Court distinguished between the testing of counsel’s submissions by a judge and a judge giving evidence of fact: at [22]. Further, the judge’s exchanges with counsel were regarded as intemperate and putting all of those matters together with the content and tone of the emails sent by the judge to the partner, the court was satisfied that the judge should have recused himself: at [25].

38    Howells does not stand for the proposition that a judge should not make a statement. To the contrary, the court acknowledged the appropriateness of a judge making a short statement of the position on the record: at [19]. What the case stands for is the obvious and unexceptional proposition that the behaviour of a judge during the course of an application that the judge should recuse him or herself may become relevant in the determination of the application. As the High Court majority said in Johnson v Johnson at [14]:

No doubt some statements, or some behaviour, may produce ineradicable apprehension of prejudgment.

39    There is no basis for a contention that the mere fact of a judge making a statement or other disclosure should lead to disqualification. To the contrary, the English authorities to which I have referred as well as Johnson v Johnson and Gem v R [2010] VSCA 168 suggest the contrary. As Merkel J said in Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd & Anor (1996) 65 FCR 215 at 222 “the fact of disclosure, as opposed to non-disclosure, cannot constitute a circumstance in favour of disqualification”.

40    What the decision in Howells demonstrates is that where there is conflict between an account given by a judge and that given by a party seeking the judge’s recusal, the behaviour of the judge including in fighting his own case may well of itself constitute a ground for recusal.

41    I do not understand John Holland to have challenged my behaviour in the making of the Statement or in the conduct of the application. It is said that in two respects there is ‘conflict’ between that part of the Judge’s Statement which recounts the inquiry made of the associate and Mr Branagan’s account of the conversations with the associate. For reasons I will later address, the nature of that conflict is not material because whichever account is accepted the result which the reasonable observer would arrive at would not be different. That conflict does not involve any events in which I was directly involved.

42    I accept that John Holland is entitled to seek to cast doubt on the acceptance of the Judge’s Statement or the reliability of it. The manner in which a Judge’s Statement should be dealt with by a reviewing court was set out in Locabail at [19]:

While a reviewing court may receive a written statement from any judge, lay justice or juror specifying what he or she knew at any relevant time, the court is not necessarily bound to accept such statement at its face value. Much will depend on the nature of the fact of which ignorance is asserted, the source of the statement, the effect of any corroborative or contradictory statement, the inherent probabilities and all the circumstances of the case in question. Often the court will have no hesitation in accepting the reliability of such a statement; occasionally, if rarely, it may doubt the reliability of the statement; sometimes, although inclined to accept the statement, it may recognise the possibility of doubt and the likelihood of public scepticism. All will turn on the facts of the particular case.

43    I have adopted that approach in determining what, if any, regard the reasonable observer should give to the Judge’s Statement. It does not follow however, as John Holland contended by its alternative submission, that simply because the applicant for recusal must seek to cast doubt on acceptance of a statement, the test for apprehended bias is satisfied.

44    The basis for John Holland’s alternative submission is that the applicant for recusal has challenged the facts asserted by the judge and is thus in contest with the judge.

45    There may well be circumstances in which a direct challenge to a fact asserted by a judge may lead to recusal in order to maintain the appearance of justice. But it is wrong to suggest that to be necessarily so. Neither the maintenance of justice nor the maintenance of its appearance would be served by such an inflexible rule. If the mere fact of the existence of contested factual allegations led to disqualification, parties could readily secure judges of their choice by making allegations of disqualifying facts. Those allegations could be made dishonestly or simply mistakenly. However made, the making of the allegations or the fact that the judge may need to make findings as to the allegations do not, as John Holland’s contention would suggest, lead inevitably to disqualification.

46    As Reeves J in Margarula v Northern Territory and Others [2009] 175 FCR 333 at 343 said by reference to Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48, there may be conceptual difficulties for a judge who is the subject of an allegation of apprehended bias to determine disputed facts for the purposes of determining whether apprehended bias exists. Some guidance is provided by the Full Court’s decision in GFC Superannuation Fund and it is helpful on the point in question.

47    GFC Superannuation Fund was an appeal in which Davies, Gummow and Heerey JJ determined to set aside the decision of the primary judge to recuse himself. The disputed facts in question involve the timing of when affidavits in a matter had been placed on the Court file located in the chambers of the primary judge. A judgment of the primary judge was reserved and it was asserted that affidavits containing material prejudicial to the applicants for recusal were made available to the primary judge prior to his pronouncement of his reserved judgment. The judge had stated that the affidavits had not come into his possession prior to pronouncing judgment. That fact was contested and witnesses were called on the issue including a staff member of the Court’s Registry and the primary judge’s executive assistant and alternate associate. The judge determined the disputed fact and found that the affidavits in question had not come into his possession at the time asserted by the applicant for recusal. Despite that, the primary judge held that the reasonable observer may nevertheless doubt that finding and might come to the view that the affidavits in question had been received.

48    On that last point, the primary judge was overturned and I will return to the reasons of the Full Court on that issue. There was, however, no suggestion in either the judgment of the primary judge or that of the Full Court that the existence of the disputed fact between the judge and the applicants for recusal should have led to recusal. Nor is it suggested that the judge was wrong to determine the disputed fact. Whilst Gummow and Heerey JJ (with whom Davies J agreed) acknowledged at [66] that the resolution of disputed facts involving facts asserted by a judge, has sometimes been regarded as undesirable and that in that case, the judge had embarked upon that course at the invitation of the parties, their Honours regarded that the alternatives (of not doing so) “were worse”.

49    In this case, I have not asserted any matter in which I was involved which John Holland has sought to dispute by evidence or identified as a ‘conflict’. The conflict relied upon by John Holland is a conflict between the evidence contained in Mr Branagan’s correspondence and the account given by my associate about the conversations he had with Mr Branagan. I have asserted no fact in relation to those conversations. I was not involved and can add nothing to what was said. I have done nothing more than report what my associate has told me upon making the investigation that Locabail suggests was necessary for me to undertake. There is no suggestion that I have not accurately reported the account given to me by my associate. I should add that I indicated to John Holland’s counsel that I had no difficulty with my associate being called to give evidence and would permit John Holland to cross examine him.

50    There is, in those circumstances, no factual conflict between me and Mr Branagan or anyone else. Nor, in relation to the conflict between my associate’s account and that of Mr Branagan can there be said to be a conflict between my associate and John Holland. John Holland does not challenge my associate’s account by reference to Mr Branagan’s account. Its submission is that neither account would be convincing to the reasonable observer.

51    Further, for reasons I will explain, the factual conflict asserted need not be resolved by me because neither account would, in my view, lead the reasonable observer to a different ultimate conclusion as to whether I might not bring an impartial mind to the resolution of the question of John Holland’s alleged breach of s 16 of the OH&S Act.

Step 1 – “the matter”

52    The first step in the approach outlined in Ebner in the application of the test for apprehended bias, is the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits. That is described in Ebner as “the matter”. The matter raised by John Holland is what is described as the ex parte communications between Comcare and the docket judge. That is the communication between Mr Branagan and my associate about the convening of a mention hearing. John Holland submits that against a background (to which I shall return), Comcare’s ex parte communications with the docket judge gives rise to an apprehension that the docket judge might not bring an impartial mind to the resolution of the question of John Holland’s alleged breach of s 16 of the OH&S Act.

Step 2 – the logical connection

53    Whilst John Holland made much about the identification of the matter, it said little to articulate the logical connection between the matter and the feared deviation. A number of decisions were relied upon by John Holland including R v Carlstrom (1977) VR 366; R v Wise [2000] 2 VR 287; R v Tait and Bartley (1979) 24 ALR 473; Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited & Ors (1985) 162 CLR 24; Teakale v WA (2007) 33 WAR 188 and Re JRL: Ex parte CJL (1986) 161 CLR 342. Those cases relate to the use by a judge, for sentencing purposes or for the determination of substantive issues at trial, of information received through a private communication and utilised, or capable of being utilised, to determine substantive matters at trial. The facts of those cases make out a logical connection between the matter and the feared deviation from the course of the judge deciding the substantive matters on their merits. On the facts of this case however, the logical connection between the matter and the feared deviation is not readily apparent.

54    Unlike all of the cases upon which John Holland relied, the content of the information communicated to the judge is not here identified. Rather, it is contended that something must have been said and that something must have been of substance. What issue or issues for determination at trial, the information is said to have related to is not suggested. It is, in those circumstances, difficult to identify any logical connection between the matter and the feared deviation.

55    In the letter of 14 February 2011 from John Holland’s solicitors to the solicitors for Comcare, Mr Branagan was accused of apprising the Court of the applications his client sought to make at the directions hearing requested and the reasons for seeking to do so. It was alleged that for the Court to have agreed to the mention hearing, Mr Branagan, in his communication with my associate, must have done that. In his letter of response dated 15 February 2011, Mr Branagan specifically denied that allegation. He said:

I specifically did not disclose the purpose of the directions nor did I specify making any application, refer to any issues in dispute or the reason for listing other than to say that there were some outstanding issues that would require directions prior to the trial.

56    Despite John Holland declining to test that evidence, John Holland says that evidence would not be accepted by the reasonable observer because the reasonable observer would understand that the judge would not have listed the matter for a hearing unless a matter of substance had been raised. That, is said to follow from the fact that, some eight months earlier on 26 May 2010 in a scheduling conference convened by me with the parties and their representatives, the judge “had made it clear to the parties that he would only compel the parties to attend a further directions hearing if there was a real matter of substance to be dealt with”. When what was actually said is examined, it is likely that the reasonable observer would regard John Holland’s characterisation of what was said as taken out of context and somewhat overstated. At the end of the scheduling conference there was a discussion as to the directions to be made for the filing and exchange of material and other matters. A question arose as to whether a directions hearing should be convened between the final step contemplated and the trial. A fair reading of the transcript shows that I indicated my reluctance to automatically list a further directions hearing when that may not be required. In that context it was indicated that if there was a need for a directions hearing, and a need to deal with something of substance, my chambers could be approached.

57    In any event, even if something was said “of substance” sufficient to motivate me to convene a mention, it does not follow that anything was said which in any way advanced the interest of Comcare in whatever was to be dealt with at the mention, let alone advanced those interests in relation to the issues to be determined at trial in a manner which provides a logical connection to the feared deviation.

58    The reasonable observer would understand that it may take very little to convince a judge about to hear a 14 day trial to list a matter for mention. The bare suggestion of a difficulty between the parties in relation to a forthcoming 14 day trial is likely to cause a docket judge concerned with the orderly and efficient operation of the Court and an imminent trial to be desirous of hearing from the parties in order to understand and, if appropriate, resolve an actual or potential difficulty. Case management objectives and duties of the kind set out in ss 37M, 37N and 37P of the Federal Court of Australia Act 1976 (Cth) would be assumed by the reasonable observer to be matters which a docket judge would take seriously. The overarching purpose of those provisions as set out in s 37M(2) includes:

(a) the just determination of all proceedings before the Court;

(b)     the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c) the efficient disposal of the Court's overall caseload;

(d) the disposal of all proceedings in a timely manner;

(e)    the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

59    Even if it were to be assumed that something seriously counter to the interests of John Holland was said to my associate and further assumed that it was conveyed to me, why would the reasonable observer consider that I might rely upon it in determining any substantive issue before me? As the High Court said in Johnson v Johnson at [12] two things must be remembered. Not only is the observer taken to be reasonable, but the person being observed is ‘a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the relevant, the immaterial and the prejudicial’.

60    It was the failure of the primary judge to appreciate that the reasonable observer understands the capacity of a judge to disregard irrelevant or prejudicial material which led to the error identified by the Full Court in GFC Superannuation Fund at [65]-[66] (and see further Brooks v The Upjohn Company (1998) 85 FCR 469 at 479). I should add in this regard that judges are regularly provided with affidavits in support of motions which advocate the grounds in support of the relief sought. Often that material is seen by the judge prior to it being read in open court and prior even to it having been served. That occurs including for the purpose of determining when the application should be listed and whether it should be listed for directions or for hearing. It has never been suggested, to my knowledge that by reason those circumstances a judge might be perceived to have deviated from the judicial task required.

61    A conclusion that a reasonable observer would not apprehend bias is able to be reached even if it were accepted that the contacts made by Mr Branagan with my associate were to be regarded by the reasonable observer as inappropriate because of their ex parte nature. However, that allegation is not sustainable when the evidence and the case law are examined. On Mr Branagan’s account, contact with my associate was made twice, on 11 and 14 February 2011. The communication of 11 February 2011 was made without the knowledge of John Holland’s solicitors. By email of 12.36 pm on that day, John Holland’s solicitors were advised that the associate had been contacted in relation to a listing for the following week. On the available evidence sourced from Mr Branagan’s letter of 15 February 2011, Mr Branagan asked my associate to nominate available dates for a directions hearing in advance of the trial and was told to contact John Holland’s solicitors as to a convenient date.

62    On the available evidence, the communications did “not include information or allegations which are material to the substantive issues in the litigation”: R v Fisher at [39]. The communications occurred in the context of active case management in which private communications “about matters of a formal or procedural nature” might be expected: Gem at [31]. Maxwell P and Weinberg JA continued:

It would be absurd to infer apprehended bias simply on the basis that there had been a private communication between the associate (and therefore, the judge) and one party, without more.

(and see at [43]).

63     It may well have been preferable for the impugned communications to have occurred in writing copied to all parties. But the fact that they did not, would not, by reason of that alone, lead the reasonable observer to the conclusion that the conduct was inappropriate or at least sufficiently inappropriate to raise suspicions to the level upon which much of John Holland’s contentions depend.

64     The reasonable observer would be fortified in that view by the lack of any initial complaint by John Holland of inappropriate conduct and the extent to which any later complaint was pursued. It is to be recalled that on the first conversation, the associate asked Mr Branagan to contact John Holland’s solicitors and Mr Branagan did so by an email and letter forwarded at 12.36 pm on 11 February 2011 in which Mr Hartigan was told that Mr Branagan had spoken to my associate in relation to a hearing being convened. If that contact with the associate is to be characterised as a serious impropriety (as it is characterised in the submissions made to me), the reasonable observer might find it surprising that no immediate complaint about the conduct was made. A complaint was only first raised by John Holland’s solicitors in their letter of 14 February 2011, which letter was attached to an email sent at 4.58 pm on that day indicating John Holland’s counsel’s availability for 23 February 2011. No complaint was made to the Court between 11 February 2011 and until this application was filed on 23 February 2011.

65    Those observations are relevant to what the reasonable observer would apprehend and in my view diminish the force of John Holland’s contention that the reasonable observer would have regarded the conduct in question as seriously inappropriate.

66    I should add that I reject the contention made by John Holland that a number of other matters would have been regarded by the reasonable observer as raising suspicion that either I, or my associate, were particularly keen to bring on a mention because I had something in mind to pursue. John Holland pointed to Mr Branagan’s correspondence of 16 February 2011 which itemised the matters that Comcare advised John Holland it proposed to seek directions from the Court about and the inclusion there of item numbered 6 “Any other matters the Court considers to be relevant”. It is contended that the reasonable observer would apprehend from that comment that the judge had directions in mind which he sought to pursue and that Mr Branagan was so aware. The expression used in item 6 of Mr Branagan’s letter is well familiar to court practice and is often used as a catch all phrase when a litigant identifies the orders or directions that it seeks from a court. There is no merit in this contention and no reasonable observer would come to the view for which John Holland contends.

67    All of the conclusions I have arrived at so far, have been made without resort to the Judge’s Statement. I have not found it necessary to rely on the Judge’s Statement to reach my ultimate decision to refuse to recuse myself. Although I consider that the reasonable observer would arrive at the same conclusion with or without reference to the Judge’s Statement, I think that resort to it is appropriate. That Statement makes it clear that no communication capable of materially impacting on any substantive issue in the litigation was received by me. It also makes it clear that I was not aware of any communications made with my associate which occurred without the knowledge or consent of John Holland or its solicitors. Further, the statement identifies the facts that were before me when I determined that a mention should be convened, including that the issues for consideration at the mention were not identified to me and further that I was not aware of any opposition from John Holland for the matter to be listed for a mention. In having regard to those matters, I have paid careful attention to the observations earlier identified at [19] of Locabail. With those considerations in mind, I have accepted that there may be occasion for the reasonable observer to doubt the reliability of a judge’s statement including by reference to “the nature of the fact of which ignorance is asserted, the source of the statement, the affect of any corroborative or contradictory statement, inherent probabilities and all the circumstances of the case in question”.

68    John Holland contended that the Judge’s Statement ought to be subjected to scepticism. No specific basis for that contention was given. Doing the best I can, I am unable to identify a basis for scepticism. The disclosure was made at the first available opportunity, that is, the first available opportunity once the allegation became known to me. As I have said, so far as the Statement deals with the facts and circumstances in which I was involved, there is no contradictory evidence before me and I see no reason as to why the reasonable observer would regard those facts and circumstances as inherently improbable in all the circumstances of the case.

69     Insofar as the Judge’s Statement deals with matters in which my associate was involved, John Holland has referred to two matters of ‘conflict’ in which the accounts given by the associate and by Mr Branagan differ. The first is as to the date of the first conversation and whether it occurred on 10 or 11 February 2011. John Holland suggests that that adverts to the possibility of three not two conversations. However, both the accounts of my associate and Mr Branagan agree that there were only two conversations. In those circumstances I see no reason to suggest that the reasonable observer would infer three conversations rather than infer an error as to the date of the first conversation. However, if three conversations is the correct inference, John Holland did not say why or how the ultimate view of the reasonable observer would be affected and I can see nothing in such a distinction.

70    Further, Mr Branagan’s account differs from that of the associate in that the associate says that Mr Branagan listed three matters by subject matter only as issues to be raised at the mention but Mr Branagan said no issues were identified. However, despite that difference, on neither account can it be said that information or allegations material to the substantive issues in the litigation were raised and in my view that is how the reasonable observer would perceive it.

Background

71    It must be kept in mind, as I have endeavoured to do throughout, that John Holland contended that the impugned communications ought not be examined in isolation but by reference to a number of background matters. By reference to background or context it was said that my preparedness to list the matter for a mention at the instance of Comcare is to be contrasted with my order made on 20 October 2010 (Comcare v John Holland Rail Pty Ltd (No 2) [2010] FCA 1516) to adjourn to the trial the hearing of John Holland’s notice of motion of 14 October 2010. By reference to that order, and in contrast to my decision to convene the mention, John Holland contends that the reasonable observer would perceive that Comcare has different and preferential ‘access’ to me than does John Holland.

72     There are a multitude of difficulties with that approach. Firstly, it is factually incorrect in its protestation of inequality of treatment as between the two occasions pointed to. On each occasion the matter was listed for directions or mention. On the first occasion I received submissions and determined to adjourn the hearing of the orders sought by John Holland to trial. On the second occasion, counsel for Comcare addressed me for about ten minutes before the application that I should recuse myself was made. I am yet to understand what it is that Comcare seeks from the Court as, by reason of this application, that mention hearing was not completed. No application for any relief or any direction has yet been made by Comcare. If any substantive application is made, I may well adjourn it to the trial.

73    At this base level of quantitative comparison, the contention fails at the first hurdle. Assuming for the moment that a quantitative analysis of the instances of ‘access’ to me by each party was of any value, a full contextual analysis, rather than the flawed selective analysis, would demonstrate that John Holland has had greater access to me if ‘access’ is to be determined either by reference to the number of applications for relief made and dealt with by me and/or the hearing time involved. However, a quantitative approach of that kind is about as helpful to the reasonable observer as a complaint by a litigant that it has lost more applications than it has won.

74     The reasonable observer would understand that the reasons for the orders made on 20 October 2010 are set out in my reasons for judgment. The reasonable observer would also know that the orders that I made were not the subject of any challenge, have not been set aside and are to be regarded as legally correct. The reasonable observer would not, in those circumstances, regard the orders made or anything said in exchanges with counsel as demonstrating any failure or preference on the part of the judge and would dismiss contentions made by John Holland to that effect as those of the disappointed litigant.

75     Even the most highly sensitive of observers would be unimpressed with John Holland’s contention that because I referred to penalty in the course of the hearing on 20 October 2010, I “might well have determined that liability was a forgone conclusion”. The reference to penalty was made, as the transcript reveals, in the context of a debate as to what relevance a particular part of a pleading may have. The possibility that I might not bring an impartial mind to the issue of liability must be real and not remote: Ebner at [7].

76    A further matter relied upon by John Holland to support its contention that the reasonable observer would consider that I treat Comcare more favourably than John Holland is based on the amount of time it took for my Chambers to provide John Holland’s solicitors with a published copy of the ex temporary judgment delivered by me on 20 October 2010. It took three working days for my Chambers to provide a copy of the judgment. John Holland says it took less than an hour after my associate was contacted on the second communication with Mr Branagan for me to list the matter for mention. There is no merit in the submission. It is an apples and oranges comparison which no reasonable observer would pay any regard to.

77    For those reasons, and taking into account all of the matters raised both individually and cumulatively, John Holland’s characterisation of the impugned communications is not assisted by the contextual or background matters upon which it seeks to rely.

conclusion

78    For all of those reasons, I do not agree that a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the question of John Holland’s breach of s 16 of the OH&S Act. I hold no real doubt as to the correctness of that conclusion. As the test of apprehended bias is not satisfied it follows that I am bound to discharge my duty to continue the conduct of this proceeding. Accordingly I will not recuse myself from the further conduct of the proceeding.

79    I am aware that there is debate and perhaps some uncertainty as to whether in determining an application for recusal, a judge should do so by an order. That matter is discussed in Margarula at [35]-[38] and in Kirby v Centro Properties Ltd (No 2) (2008) 172 FCR 376 at [18]-[23]. I see no reason why I should not approach the matter in the way suggested by Finkelstein J at [23] of Centro and followed in Margarula. I will frame my refusal to recuse myself in terms of an order dismissing John Holland’s notice of motion of 23 February 2011.

80    As the parties have not addressed me on the question of costs, I will reserve that question for later consideration.

Associate:

Dated:    2 March 2011