Saunders & Anor v Gas & Fuel Corporation Superannuation Fund M76/1994 [1994] HCATrans 44 (16 September 1994)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M75 of 1994

B e t w e e n -

HARTLEY MOSES SAUNDERS &

EVA SAUNDERS

Applicants

and

GAS & FUEL CORPORATION

SUPERANNUATION FUND, A.T.

COCKS & PARTNERS PTY LTD

& TERRY COCKS

Respondents

Office of the Registry

Melbourne No M76 of 1994

B e t w e e n-

HARTLEY MOSES SAUNDERS &

EVA SAUNDERS

Applicants

and

GAS & FUEL CORPORATION

SUPERANNUATION FUND

Respondent

Application for special leave

to appeal

MASON CJ

BRENNAN J

DAWSON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 SEPTEMBER 1994, AT 11.55 AM

Copyright in the High Court of Australia

________________

MR J.L. SHER, QC: If the Court pleases, I appear with my learned friend, MR G.D. BLOCH, for the applicants. (instructed by Goldhirsch & Fixler)

MR A.R. CASTAN, QC: If the Court pleases, I appear with my learned friend, MR J.F. STYRING, for the Gas & Fuel Corporation Superannuation Fund. (instructed by Mallesons Stephen Jaques)

MR P.B. MURDOCH, QC: May it please the Court, I appear for A.T. Cocks & Partners Proprietary Limited and Terry Cocks. (instructed by Phillips Fox)

MASON CJ: Mr Sher.

MR SHER: Your Honours, in light of the written submissions that have provided to the Court, I desire to go immediately to the areas of dispute between us. The respondents seem to be taking the point that the applicants are suggesting that was not technically an order here which was appealable. That is not the point we make. We say, as a matter of practical consideration in the light of recent case law, there is no basis upon which an appellate court should interfere with a judge's decision to disqualify himself because of reasonable apprehension of bias.

Secondly, the respondents seem to be saying that this not being a case in which mandamus was sought and obtained forcing Mr Justice Jenkinson to go on and hear the matter, that for that reason this Court should not interfere, and our answer to that, Your Honours, is that in every practical sense this could have been a mandamus application. The effect of the Full Court's decision will be that Mr Justice Jenkinson will now go on to deliver the judgment in this case. That is what the respondents obviously hope for and what the applicants fear.

The point central to the application is really this, that once His Honour had embarked upon the factual investigation which concerned, in effect, His Honour's own conduct, the application, in effect, had to succeed. Now, I am not sure that it is clear from the material, Your Honours, just exactly what that factual investigation involved but it was simply this: Mr Justice Jenkinson had reserved his decision in a commercial case in which the credibility of the parties was critical. Before he announced his judgment one of those parties sought an Mareva injunction from the trial judge. Now, they did not have to go to the trial judge and, indeed, they did not have to go to the Federal Court. It concerned assets within the jurisdiction of the State of Victoria and they could have made their application to the Supreme Court of Victoria.

Having done that the question then arose as to whether that material, being made in an ex parte application, affected His Honour's judgment about the credibility of the Saunders, and His Honour announced that he had not seen that material prior to announcing on 15 March at 9.47 am what his judgment was going to be in the case. Now, in fact, there were two witnesses, one being his secretary who had acted as His Honour's associate on the relevant day, and a member of the court staff, that was Miss Bendall and Mr Westgate, both of whom gave evidence in the inquiry His Honour conducted that the papers had actually been delivered to His Honour's chambers that morning before court.

On the other hand, there were witnesses: Mr Wilson, QC, the solicitor and article clerk for the Gas & Fuel, so, counsel, solicitor and article clerk for Gas & Fuel who gave evidence which was directed to establishing that the papers had not been delivered before 11 am, which would have been after His Honour had announced the result. Our submission is that once His Honour embarked on an inquiry as to when the papers were actually delivered to his chambers the matter was, in effect, foredoomed. That is to say, that the application had to succeed and that is, in fact, what happened. His Honour found as a fact that he was not going to act upon the evidence of his own staff and a member of the court's staff and, in effect, rejected their evidence.

Our submission is, Your Honours, that a lay member of the public, not a judge - and we say, this is the fault the Full Court fell into - a lay member of the public, as His Honour Mr Justice Jenkinson clearly recognised, would have apprehended that whatever finding of fact His Honour made it would have left that member of the public with an apprehension of bias and for the reasons that His Honour specifically enunciated himself in his finding - and if I can take Your Honours to the appeal book at page 23 in the first instance, at line 6, His Honour posed the question:

I return to the question whether a person in Mr Saunders' position might reasonably suspect that I had in fact read any of the documents before stating my conclusions. There is authority that where the means of communicating to the judicial officer information or opinion likely to excite bias is a person, the oath of the judicial officer that no such a communication had occurred, or acceptance by counsel for the party claiming disqualification that no such a communication had occurred, does not preclude a finding that an interested person might reasonably have suspected that the communication was made -

and, His Honour there refers to two cases including the Victorian decision of Ciccone which has been approved in this Court:

Is the position the same where the means of communication is a document in the judicial officer's possession? In the particular circumstances of this case a suspicion that I had read the documents before stating my conclusions would entail the suspicion, not only that I had falsely stated the contrary, but a suspicion that I had falsely found that the documents were filed at 11 a.m., well knowing that they had been filed before 9.45 a.m. There seems no good reason to accord less weight to the oath of a Sussex justice of the peace than to the unsworn statements of a judge. That circumstances affords an example of the dangers, to which Mahoney, J.A. drew attention in Bainton v Rajski.....inherent in determination of disputed facts by a judge who is asked to disqualify himself. Counsel for all the parties invited me to take that course, but it may now perhaps be seen to have been an unwise course. If that course had not been taken, a person in Mr Saunders' position, having been informed by his solicitors of what Mr Westgate had told them, might reasonably have suspected that I had read the documents, notwithstanding my statement that I had not, and might reasonably have suspected that I had been biased against him by what I read before reaching the conclusions I stated on 10 March.

Now, it is important to bear in mind, Your Honours, that what His Honour had investigated then was whether or not he had received the documents before court, as his associate and secretary said and a member of the court staff had said, or after court as other witnesses were saying.

MASON CJ: But what is the question of principle here?

MR SHER: The question of principle, Your Honours, is this: the Court of Appeal of New South Wales in a mandamus case has, in effect, said that an appellate court cannot really direct a judge, who has disqualified himself, to hear a matter, and the Court of Appeal of the Northern Territory has said likewise. There is another earlier decision of the Court of Appeal in New South Wales in the case of Sankey v Whitlam where the magistrate had been ordered to continue to hear the preliminary hearing after disqualifying himself of his own motion to the opposite effect, and the matter is summed up, Your Honour, best in two short passages in two of the cases to which we refer. I can take Your Honours to the first of them, the decision of Fitzgerald v Director of Public Prosecutions, 24 NSWLR 45 - - -

DAWSON J: But this situation is different here, is it not, because, in fact, the judge made orders, and one can fasten on those? If one decides he made them without bias and should not have made them because he was in fact without bias, that is the end of the matter.

MR SHER: Your Honour Justice Dawson has raised a point that the respondents raised but, in our submission, it is a distinction with no difference. We concede there are relevant orders in each case, that is to say, if a judge disqualifies himself there is a relevant order which is appealable subject to leave. If a judge fails to disqualify himself, it is arguable that there is no relevant order but ultimately if you lose the case you can appeal and take that point, so you get an order in that sense. We say there is no difference between the two. Mr Justice Mahoney in Fitzgerald, at page 51, poses the question succinctly at paragraph G when His Honour said this:

In my opinion, in circumstances such as the present, a judge cannot be required to preside at a trial if he determines that he should not do so. I do not, by what I say, seek to mark out the limits of what a judge must do in any case placed before him. I limit what I say to circumstances of the present kind. But prima facie when a judge decides not to hear a matter, what he does is not a "judgment or order" or otherwise such a determination as is subject to appeal or formal judicial review as such. This is the effect of Barton v Walker.....This does not mean that what he has done may not be called into question.

His Honour goes on to consider the matter a bit further, and refers to the decision of this Court in Re Polites where mandamus was obtained and where there was a statutory obligation to continue to hear a matter. But on page 52 at the paragraph commencing between D and E, His Honour said:

The fact that a judge, in determining not to hear a case, does so for a reason that is wrong, in fact or in law, does not in my opinion alter the position. If a judge concluded that he would not sit because of other court commitments, his decision could not be called into question on judicial review because in fact he was wrong. And, in my opinion, if he decides that there is a risk of a reasonable apprehension of bias such that he should not sit, formal proceedings are not available to prove that he was wrong.

MASON CJ: But, I do not understand that. If he makes an order that is susceptible of appeal, why are not formal proceedings available to prove that he was wrong?

MR SHER: Well they are but the point here is whether, when the judge does disqualify himself so he is not going to make a decision in the case - can an Appeal Court interfere and force him, in effect, to make a decision in the case.

DAWSON J: Why not?

MR SHER: Well, because, Your Honours, once a judge has decided that there is a reasonable apprehension of bias in relation to his own conduct, in our submission, it is impossible to rebut - - -

DAWSON J: It is only impossible because there is no means of doing it. There is a means in this case.

MR SHER: With respect, Your Honour, the means employed in this case was erroneous as a matter of law, and perhaps if I could finish the first point and quickly come back to what Your Honour Justice Dawson has said.

In Fitzgerald not only did Mr Justice Mahoney make those observations but so did other members of the court made similar observations and they were following, in effect, a decision of the Court of Appeal of the Northern Territory, which was not a mandamus case, the case of Mann v Northern Territory News, 53 NTR at page 15. Now here the trial judge, Mr Justice Nader, had disqualified himself and an attempt was made to force him to continue on to hear a case, and the Court of Appeal of the Northern Territory, in effect, said, "We have got no jurisdiction to force a judge to hear a case that he has disqualified himself from on the basis of reasonable apprehension of bias.

MASON CJ: But, this is not such a case, is it? It is not a case where there is an order sought compelling Justice Jenkinson to sit.

MR SHER: There is, Your Honour, with respect. What has happened is that Mr Justice Jenkinson announced that he had formed a view about the result of the litigation and that the respondents were going to win.

MASON CJ: And the Full Court has said that that view was wrong.

MR SHER: No, the Full Court has said nothing about that view. What then happened was - - -

MASON CJ: I follow, yes.

MR SHER: - - - an application was made that he should not deliver his judgment because, in the meantime, he had been served with prejudicial material on an ex parte application which would have affected his view of the credibility of the litigants. His Honour then conducted a factual inquiry into whether or not he had received those papers before he had made his announcement and rejected evidence of his secretary come associate - - -

MASON CJ: Yes, I follow all that.

MR SHER: Yes. Your Honours, we say, in every practical sense that what His Honour did - - -

DAWSON J: What did the Full Court do? They set aside the orders he made.

MR SHER: Exactly.

DAWSON J: Yes.

MR SHER: But what will now happen, Your Honours, as a matter of practical reality is this, the matter will go back to His Honour Mr Justice Jenkinson and, we submit, that it is inevitable that what His Honour will do is to give his judgment.

DAWSON J: What is wrong with that?

MR SHER: Because he has disqualified himself. He has said, "I should not give my judgment because the litigants have a reasonable basis for apprehending that I am biased."

DAWSON J: And he is said to be wrong in that by an appeal court.

MR SHER: But we submit - and this is the special leave point - that an appeal court cannot say that.

DAWSON J: Why not?

MR SHER: Because, Your Honours, firstly, we say, that there are appellate court decisions saying, in effect, as a matter of practical reality, they cannot, and the reason for it, we submit, is that once - - -

DAWSON J: What are those instances?

MR SHER: They are the cases of Mann v Northern Territory News.

DAWSON J: But, they do not say that.

MR SHER: We respectfully submit that that is arguably what they do say, and that is really the question, and the observations in the Court of Appeal of New South Wales which, we say, say the same thing and the - - -

DAWSON J: What is said there is that there is no means of compelling a judge to....., that is true. Maybe there is no means of compelling Justice Jenkinson if he maintains his position, but we do not know. It is unlikely that he would.

MR SHER: Your Honours, it is submitted as a matter of practical reality and the reason that my learned friends are here to oppose this application is that everyone knows what will happen. His Honour Mr Justice Jenkinson is almost inevitably going to give his judgment and - - -

MASON CJ: Well I would think he would.

MR SHER: Well, it is on that premise that we make this application. Because it is our submission that having said to one of the litigants, "In my view it is reasonable for you to apprehend that I am biased because of my conduct - - -

MASON CJ: "But, I have been held to be wrong in that view."

MR SHER: Well, as to that let me say why the Full Court were wrong about that. Your Honour the Chief Justice and Justice McHugh in the recent decision of Webb v The Queen, one of the cases to which my learned friends have referred, made observations about the appropriate approach that a court should take in respect to the state of mind of the laymen, and in the Australian Law Journal Report of that decision, which is reported in [1994] HCA 30; 68 ALJR 582 at page 586, Your Honour the Chief Justice and Justice McHugh said this:

that it is the court's view of the public's view, not the court's own view, which is determinative. If public confidence in the administration of justice is to be maintained, the approach that is taken by fair-minded and informed members of the public cannot be ignored. Indeed, as Justice Toohey pointed out in Vakauta in considering whether an allegation of bias on the part of a judge has been made out, the public perception of the judiciary is not advanced by attributing to a fair-minded member of the public a knowledge of the law and the judicial process which ordinary experience suggests is not the case.

Now, what the Full Court have done here is to say, "You were wrong Mr Justice Jenkinson because judges often hear prejudicial material and put it out of their own minds," but they say that as judges experienced in the judicial process and understanding how it works. Our submission is that the appropriate approach is to say, "What would a laymen think of a judge who has said, `I am going to reject the evidence of my own staff and I am going to find as a fact that I did not receive these papers'" and then having said that go on to say, `But, I accept that you, the litigant, have a reasonable apprehension that I might have seen them, and that I might not be telling the truth so I will not decide the case."

That can never be removed, in our submission, by anything the Full Court or any other court says about it and it is a matter of practical reality, we submit, that once a judge says that an appellate court should not interfere. Now that is the special leave point, Your Honours, and, in our submission, it is an important point and it involves conflicting authority in the Court of Appeal of New South Wales, and a difference between the Full Federal Court's decision in this case and the approach adopted by the Court of Appeal of the Northern Territory. Those are the reasons why, we submit, this calls for special leave to restore the decision of His Honour Mr Justice Jenkinson. If the Court pleases.

MASON CJ: The Court need not trouble you, Mr Castan, nor you, Mr Murdoch.

The Court is not persuaded that there was any error of principle on the part of the Full Court of the Federal Court. The applications for special leave are therefore refused.

MR CASTAN: I ask for costs.

MASON CJ: And you also, Mr Murdoch?

MR MURDOCH: Yes, Your Honour.

MASON CJ: You do not oppose costs, Mr Sher? The applications are refused with costs.

AT 12.16 PM THE MATTER WAS ADJOURNED SINE DIE