FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Turi Foods Pty Ltd (No 3) [2012] FCA 198

THE COURT ORDERS THAT:

1.    The application by the second and third respondents that Justice Tracey disqualify himself from hearing the proceeding further be refused.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

1    In September 2011 the applicant (“the ACCC”) commenced a proceeding in the Court. It alleged that four respondents had contravened various provisions of the Trade Practices Act 1974 (Cth) (“the Act”) and its successor, the Australian Consumer Law which appears as Schedule to the Competition and Consumer Act 2010 (Cth) (“the ACL”).

2    The ACCC alleged that the respondents had engaged in conduct in trade or commerce which was misleading or deceptive and likely to mislead or deceive. The conduct related to the terms in which the respondents advertised their chicken products and some of the images which were presented with the text. The terms and form of advertising differ as between the respondents.

3    The specific allegations against the second and third respondents (“Baiada” and “Bartter” respectively), as summarised by their counsel are that:

“(a)    by using the phrases ‘free to roam around large barns’ and ‘free to roam in large barns’ on their packaging and in advertisements for chicken meat products, Baiada and Bartter have represented that the meat chickens raised on their behalf ‘ … have substantial space available allowing them to roam around freely’;

(b)    in fact, the meat chickens raised on behalf of Baiada and Bartter are ‘… subjected to such stocking densities that they do not, as a practical matter, have substantial space available to roam around freely;

(c)    by reason of the matters sent out in sub-paragraphs (a) and (b), Baiada and Bartter have engaged in misleading or deceptive conduct, and made false representations, in contravention of the Trade Practices Act … and the Australian Consumer Law.”

4    Similar (but not the same) allegations were made against the first respondent (“La Ionica”). Towards the end of last year the ACCC and La Ionica settled their dispute. They filed a statement of agreed facts and a joint outline of submissions which included minutes of proposed orders which the Court was invited to make to determine the dispute as between those two parties. In substance, La Ionica accepted that statements made in its advertisements about the husbandry of chickens in its barns contravened the Act and the ACL. La Ionica agreed to the making of declarations to this effect, the granting of injunctions, the imposition of a pecuniary penalty and orders requiring it to take remedial action.

5    I determined to make the orders sought. I gave reasons for doing so: see Australian Competition and Consumer Commission v Turi Foods Pty Ltd (No 2) [2012] FCA 19.

6    In deciding to grant injunctions I said (at [23]) that:

“The stock densities, which La Ionica has admitted are to be found in the barns in which its chickens are raised, are maintained at such a level that the chickens have severe restrictions placed on their capacity to roam, if, indeed, any such capacity exists. In these circumstances La Ionica accepts that the impugned statements have given rise to contraventions of ss 52, 53(a) and 55 of the Act and the equivalent provisions of the ACL.”

7    In dealing with the issue of the adequacy of the proposed pecuniary penalty I said (at [33]) that:

“Since June 1998 La Ionica has sought to improve its sales by advertising that its chickens have been “free to roam” whilst growing. The advertising has taken the form of posters delivered to retail outlets and signage on nine of the company’s delivery vehicles. The representations conveyed the impression that the chickens had been raised in more spacious conditions that [sic] was in fact the case. This was misleading. At some stages of the growth cycle an average of 18.19 meat chickens were confined within the space of a square metre inside the barn. Later in the cycle this density was reduced to 12.12 chickens per square metre but, by this time, the chickens had increased in size. As already noted La Ionica accepts that the impugned statements, incorporated in its advertising, were false, misleading and deceptive in contravention of the Act and the ACL. La Ionica acknowledges that these contraventions of the Act and the ACL were serious.”

8    My reasons were published on 23 January 2012.

9    The ACCC’s proceeding against the remaining respondents is fixed for hearing commencing on 13 March 2012.

10    By interlocutory application which was filed on 17 February 2012 Baiada and Bartter applied to me to disqualify myself from further hearing the proceeding.

11    The application came on for hearing on 1 March 2012. Having heard argument I announced that I would refuse the application and that I would publish my reasons for so ordering at a later date. These are those reasons.

THE LAW

12    The principles to be applied when an application is made to a judge to disqualify him or herself for apprehended bias are well established. The fundamental proposition was recently restated by Gummow ACJ, Hayne, Heydon, Crennan and Bell JJ in Michael Wilson & Partners Ltd v Nicholls (2011) 282 ALR 685 at 692. Their Honours there said that:

“It has been established by a series of decisions of this court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (in this case, in the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.”

13    This is an objective test and it “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”: see Johnson v Johnson (2000) 201 CLR 488 at [12].

14    In applying the test a two step process is required. Those steps were explained in Nicholls at (698) as follows:

“First, it requires the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. And second, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits. … [T]he bare assertion that the judge appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision-making.”

15    Applications that a judge disqualify himself or herself because of apprehended bias are to be treated seriously. An application should not be acceded to unless the judge is satisfied that a proper basis exists for the application: see Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 at 86; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 348.

16    This is particularly so where prejudgment is alleged. In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100, Gaudron and McHugh JJ said that:

“When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.” (Emphasis added)

THE APPLICATION

17    Baiada and Bartter support their application by reference to things which I said in paragraphs [23] and [33] of my reasons for judgment in Turi Foods. In particular they direct attention to:

    The reference to the stock densities in La Ionica’s barns being “at such a level that the chickens have severe restrictions placed on their capacity to roam, if, indeed, any such capacity exists”; and

    The statement in paragraph [33] that “[a]t some stages of the growth cycle an average of 18.19 meat chickens were confined within the space of a square metre inside the barn.”

18    They submitted that the query as to whether any capacity for the chickens to roam existed and the statement that they were “confined” travelled beyond the agreed facts in that case and constituted findings independently made by me.

19    Such findings were said to have “a direct and critical impact” on their interests in this proceeding: cf Kirby v Centro Properties Limited (No 2) [2011] FCA 1144 at [61] (per Middleton J). This was because Baiada and Bartter operated their sheds in the same way as did La Ionica and that the stocking densities in those sheds were equivalent to (and perhaps slightly higher than) La Ionica’s stocking densities. It followed, it was contended, that, as I had already determined that the stocking densities used by La Ionica were such that its advertising was false, misleading and deceptive, a fair minded observer might reasonably apprehend that I would reach similar conclusions in relation to Baiada and Bartter’s advertising.

20    Baiada and Bartter supported their submissions by reference to passages in the joint judgment of Heydon, Kiefel and Bell JJ in British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 at 327-8 and Middleton J in Kirby at [61]-[64].

21    In Laurie, the plurality recorded that, in Livesey v NSW Bar Association (1983) 151 CLR 288 the High Court had held “that a fair-minded observer might entertain a reasonable apprehension of bias if a judge sits to hear a case after the judge has, in a previous case, expressed ‘clear views’ about a question of fact constituting a live and significant issue in the subsequent case …”: see at 327. Their Honours continued (at 333):

“Whenever a judge is asked to try an issue which he or she has previously determined, whether in the same proceedings or in different proceedings, and whether between the same parties or different parties, the judge will be aware that different evidence may be led at the later trial. [The trial judge’s] express acknowledgement of that circumstance does not remove the impression created by reading the judgment that the clear views there stated might influence his determination of the same issue in the [subsequent] proceedings.” (Emphasis in original).

22    In Kirby, Middleton J had disqualified himself because he had made so many factual findings in an earlier trial which were in contention in the proceeding in which he recused himself, that he considered that “the reasonable lay observer might have an apprehension the judge would find it difficult to ‘start afresh’”: see at [64].

CONSIDERATION

23    Inevitably, on applications of this kind, matters of perception and judgment arise. As the differing views of members of the High Court in Laurie illustrate, reasonable minds may differ in applying the established principles to the facts of any given case. It is, therefore, important that careful attention be given to the circumstances in which the present application has been made.

24    Baiada and Bartter accept that the proceeding, insofar as it involved La Ionica, was determined on the basis of a statement of agreed facts which was tendered pursuant to s 191 of the Evidence Act 1995 (Cth). There were no contested factual issues and no witnesses were called.

25    Baiada and Bartter, however, submitted that I had made findings which related to issues which they proposed to contest at trial and which would, if remade, be critical and prejudicial to their interests.

26    The first of these critical findings was said to be found in paragraph [23] of my reasons in Turi (No 2). The second was in paragraph [33]. Both related to stock densities and the effect of those densities on chickens which were being raised in La Ionica’s barns.

27    It was an agreed fact that those chickens were “raised or grown in a shed system in which they [were] subjected to such stocking densities that they [did] not, as a practical matter, have at all times in the growth cycle substantial space available to roam around freely.” It was also an agreed fact that, at certain times, the average stocking density was 18.19 meat chickens per square metre and at others 12.12 per square metre: see statement of agreed facts at [24].

28    In paragraph [23] of my reasons I said that the stocking densities were “at such a level that the chickens have severe restrictions placed on their capacity to roam, if, indeed, any such capacity exists.” The finding that the chickens had severe restrictions placed on their capacity is entirely consistent with the agreed fact that they did not, as a practical matter, at all times have the capacity to roam around freely and that at times an average of 18.19 chickens were gathered within the space of a square metre. I concluded the relevant sentence by querying whether, at such a high density, any movement, might, at times be possible. I made no finding in this regard. Immediately afterwards I noted that La Ionica had accepted that, in these circumstances, its “free to roam” statements had given rise to the alleged contraventions of the Act and the ACL.

29    In paragraph [33] I referred to the chickens in La Ionica’s barns being “confined”. Baiada and Bartter take issue with the use of this word because, they contend, “chickens raised in sheds are not ‘confined’ within one square metre at any stage of the growth cycle.” Nothing I said in paragraph [33] contradicts this assertion, an assertion which, I assume, will be advanced at trial. What I said was that, at some times, “an average of 18.19 meat chickens were confined within the space of a square metre” (emphasis added). The reference to “an average” makes it plain that no finding was being made that any particular number of chickens were to be found in the given space at a given time within the barn. The alleged finding was not made.

30    In any event, the ACCC does not propose to rely on any of the facts on which it and La Ionica had agreed or anything appearing in my reasons for judgment at the trial of the Baiada and Bartter matters.

31    Furthermore, there are subtle differences in the terms and get-up of the advertising in these pending matters. Neither Baiada nor Bartter accept the construction placed on the words “free to roam” and other like expressions by the ACCC and to which La Ionica was prepared to agree.

32    The passage from the joint judgment in Laurie, on which the present applicants rely quotes from the earlier judgment in Livesey. In that case two members of the New South Wales Court of Appeal had made findings, in an earlier appeal, that Mr Livesey had been an active and knowing participant in corrupt dealings. The High Court held that these judges were precluded, by reason of the appearance of bias, from sitting on an appeal which raised the question of Mr Livesey’s fitness to remain on the roll of counsel.

33    Unlike the judges in Livesey I have not expressed “clear views” about any issue which is likely to arise at the forthcoming trial. I have not heard from any witnesses or resolved any factual disputes much less passed on the credit of any witness who will be called at trial.

34    In Kirby, Middleton J was concerned that he had, in an earlier proceeding, made findings which were relevant and prejudicial to the interests of some of the parties in the proceeding in respect of which the disqualification application was made. In his reasons (at [25]) his Honour observed that the earlier proceeding involved:

“… contested hearings both as to liability and penalty. The liability hearing lasted for a number of weeks and involved evidence from numerous witnesses. Consideration was given to a large volume of factual material, involving cross-examination … A number of findings and conclusions were made about a variety of legal and factual issues.” (Emphasis added).

35    His Honour went on to identify nine broad issues in relation to which he had made factual findings in the earlier proceeding which were in contention in the pending proceeding. This led him to conclude (at [64]) that:

“It is the number of factual findings now in contention, upon which I reached judgment in the [earlier] proceeding, which makes the apprehension in the eyes of the reasonable lay observer more apparent and potentially real. It may be assumed that I would be able to make different findings of fact in this proceeding based upon the evidence in this proceeding. However, where there are so many factual findings which are now in contention, the reasonable lay observer might have an apprehension the judge would find it difficult to ‘start afresh’.” (Emphasis added).

36    The circumstances which presently confront me bear no resemblance to those which led Middleton J to recuse himself from hearing the Centro class action. The La Ionica case involved no contested hearings; no witnesses were called and no contentious factual findings were made. As a result, in my view, no basis exists for the reasonable lay observer to apprehend that I might find it difficult to “start afresh”.

37    The present case bears much greater similarity to the circumstances which were dealt with by Goldberg J in Australian Competition and Consumer Commission v SIP Australia Pty Ltd [2000] FCA 1258. In that case the ACCC applied to the Court for various forms of relief arising from alleged contraventions, by six respondents, of s 45(2) of the Act. Three of the respondents filed defences admitting the allegations made against them. Subsequently, they filed joint submissions based on a statement of agreed facts. Whilst the hearing of the proceeding against the remaining three respondents was pending Goldberg J considered the joint submissions and made orders against the three respondents who had admitted contraventions of the Act.

38    The other three respondents then made application to the Court for a judge, other than Goldberg J, to preside at the trial.

39    The submissions which were made in support of this application were summarised in his Honour’s reasons (at [7]) as follows:

“It was submitted that the conduct in respect of which I had made findings of fact and imposed penalties against [the other three respondents] involved the making of agreements to which SIP is said to be a party. As I had made findings of fact, albeit by consent and on the basis of the facts set out in the joint submissions and found contraventions of the Act in respect of that conduct, it was submitted in effect that I might be seen to be influenced by such matters in hearing the proceeding because SIP and its two directors were contesting the findings of fact to which [the other three respondents] had agreed and were contesting that the conduct alleged by the [ACCC] constituted contraventions of the Act. It was not suggested that in the hearing against SIP and its directors I was bound by anything contained in the joint submissions and it was accepted by SIP that nothing I had said in my earlier reasons for judgment was in any way determinative of any issue involving SIP. It was put that the reasonable apprehension of bias arises by reason that it might be considered that a judge who imposed penalties on the basis of agreed facts might be embarrassed in coming to a conclusion in relation to the characterisation of that conduct, the subject of the agreed facts, and whether the conduct alleged against SIP and its directors occurred.”.

40    Having examined a large number of authorities his Honour rejected the application. He explained his reasons (at [18] and [19]) as follows:

“I have no embarrassment or concern about hearing this matter, nor do I consider, consistently with the authorities to which I have referred that a reasonable and informed bystander would have a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the issues to be placed before me. I did not make any findings of fact against [the three respondents who had admitted liability] on the basis of resolving contested issues of fact. I did not see or hear from any witnesses on behalf of [those respondents]. There was placed before me a joint submission containing agreed facts and, in those circumstances, I did not give detailed consideration to those facts other than to rehearse facts taken from the statement of claim and the agreed facts.

…

To the extent to which the authorities to which I have referred suggest that a judge should disqualify himself or herself from hearing a case where the judges previously made a decision on the same facts, I consider that those authorities were dealing with contested hearings where the judge had to decide facts which were contested and where the judge had to decide which witness to accept. I do not regard those authorities as requiring a judge to disqualify himself or herself in circumstances where, such as here, the judge has simply adopted, by consent, an agreed statement of facts.”

41    Counsel for Baiada and Bartter sought to diminish the force of Goldberg J’s decision by noting that it preceded the decisions in Nicholls, Laurie and Kirby. For the reasons which I have given I do not consider that there is anything to be found in those authorities which undermines the force of Goldberg J’s reasoning in SIP. On the contrary, each of these more recent decisions referred with approval to and applied many of the authorities on which Goldberg J relied in determining the recusal application in SIP.

42    The position in which I presently find myself is substantially the same as that which confronted Goldberg J. Like him I harbour no embarrassment in relation to determining the issues between the ACCC and the remaining respondents. For the same reasons advanced by his Honour I do not consider that the reasonable observer might consider that I might be so committed to any findings of fact (had I made any) in the La Ionica matter that I would not be prepared to alter my views no matter what evidence or arguments are presented at trial: cf Laws at 100 (above at [16]). It may be, having regard to what the majority said in Laurie (above at [21]) that a less stringent state of mind should be attributed to the reasonable observer. Even so, in that “unusual case” (Laurie at 333) disqualification was only required because the judge had previously determined an issue which he would be called on to try at trial. I have not, in dealing with La Ionica, determined any contested issues of fact which might reasonably be expected to arise during the trial of the remaining part of the proceeding.

DISPOSITION

43    It was for these reasons that I determined to refuse Baiada and Bartter’s application.

Associate:

Dated:    9 March 2012