Barbosa bhnf The Protective Commissioner v Di Meglio S152/1999 [2000] HCATrans 103 (17 March 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S152 of 1999

B e t w e e n -

ANTONIO BARBOSA by his next friend THE PROTECTIVE COMMISSIONER

Applicant

and

PAUL PASQUALE DI MEGLIO

Respondent

Application for special leave to appeal

GLEESON CJ

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 MARCH 2000, AT 10.16 AM

Copyright in the High Court of Australia

MR A.S. MORRISON, SC: May it please the Court, I appear with my learned friend, MR D.J. HOOKE, for the applicant. (instructed by J.S. Pinto & Co)

MR B.M. TOOMEY, QC: May it please your Honours, I appear with my learned friend, MR I.J. McGILLICUDDY, for the respondent. (instructed by Pricewaterhouse Coopers Legal)

GLEESON CJ: Yes, Mr Morrison.

MR MORRISON: Your Honours, the special leave issue in this case is whether a judge can cure a perception of bias arising from his conduct in the mind of the informed observer at the back of the court by his subsequent conduct. Mr Justice Priestley, in the Court of Appeal, thought he could not and did not. The President thought he could cure it and that he did. But that conclusion sits very oddly with his strong criticism of the trial judge's treatment of the witness, Mr Wingrove, in his judgment because, relevantly, the President agreed with Mr Justice Priestley that the criticism that had been made of Mr Wingrove was inaccurate and wrong.

GUMMOW J: Do you quarrel with the statement of principle by the President at page 32, paragraph 7, of his judgment?

MR MORRISON: We would not quarrel with the proposition that the general principles are well understood and well known. The application of those principles and the extension of them to the question of curing perception of bias is, however, a matter which remains in doubt and that is the matter - - -

GUMMOW J: Well, the sting for you is in the second-last line on the page, "in all the circumstances of the particular case".

MR MORRISON: Indeed, but - - -

GUMMOW J: You can labour to elevate them into a particular principle, I suppose.

MR MORRISON: Well, your Honours, the critical aspect of this case is that whatever else be said about the situation, from the moment that his Honour at first instance made the criticism of the critical witness' material for the plaintiff, the result of the case was obvious to all concerned. That it was obvious is clear from the fact that the respondent was so certain about the result, they did not call their own expert, and in a case where the issue was whether the defendant had or should have seen the braking of the vehicle beside him, the defendant was not called. That was how clear the perception was to those in the court.

Now, the question then is whether, somewhat as in Vakauta v Kelly, that perception is continued in the judgment. Mr Justice Priestley thought it was and that, accordingly, even if it could be cured, and his Honour did not think it could, it had not been cured.

GLEESON CJ: But is not the answer to the question whether conduct which might possibly give rise to an apprehension of bias can be, to use your expression, "cured", is not the answer to that question, "It depends on the circumstances of the case."?

MR MORRISON: Indeed, but there is a very real public interest in the proper administration of justice for a case like this to be properly determined, that is, for this Court to determine standards of judicial conduct, and we would not accept that this is a case purely turning on its facts. Even if it did that is such an overwhelming public interest that it calls for the intervention of this Court in circumstances which were as clear and as strong in this case. That trial was effectively over from the moment that trial judge made his comments and that it was over is obvious from the conduct that I have just referred to.

But, your Honours, we would say that that question of whether or not you can cure the perception is an issue of law. It is an issue of law because it relates to the question as to whether or not the - - -

GLEESON CJ: Is not the answer to the question, sometimes you can and sometimes you cannot. The principle is that stated on the bottom of page 32.

MR MORRISON: Well, your Honours, we would say that there is an internal conflict in the reasoning process of the learned President below. That conflict is if the trial judge's criticism of the witness in his judgment was wrong, how can it be said that you can cure a perception of bias in the judgment.

It is a different matter, your Honour, if we are talking about a judge who says, "I am sorry, I said that. I withdraw the comment". That is not what we are talking about. We are talking about here a question as to whether or not the perpetuation of a perception of bias in the judgment can ever - can ever cure the original problem and we will respectfully submit that is the issue of principle, that is the issue of law which this Court has to determine. We would submit that where it is reflected in the judgment it cannot be cured. That whatever might be said about other cases which might turn on their facts, where it is continued in the judgment, there is no room for that curing process, and that is the issue which we say this Court should adjudicate on.

GLEESON CJ: Thank you, Mr Morrison. Yes, Mr Toomey.

MR TOOMEY: May it please your Honours. Your Honours, the question in issue was whether what his Honour had done in the case would so offend the sense of justice of the not suspicious bystander as to make it necessarily so that they might apprehend bias. The Court of Appeal, in considering that question, applied the right test and two of them came to the view that his Honour's conduct of the trial was such that a bystander would not have been justified in having that apprehension. In other words, it got back to the question of fact which always arises if the correct test is applied, that is, as a matter of fact and in the circumstances, would that inference be justified? Theirs Honours were of the view that it was not, that is the President and Mr Justice Meagher.

Mr Justice Priestley was of the view that the inference would be justified but it seems, with respect to his Honour, that he was of that view because he thought that the judgment was wrong. Now, as the President was at pains to point out at page 31 of the application book, in paragraph 3:

It is important to note what is not in issue in the appeal. The appellant does not complain of the rejection of evidence or the failure to address critical arguments. Nor is this Court asked to overturn the verdict for the defendant on the basis of a rehearing of the material before the primary judge. In recording these matters, I am not suggesting that an appeal on these grounds would have succeeded had it been advanced.

The sole issue is whether the trial miscarried when the trial judge rejected an application that he disqualify himself.

The plaintiff/appellant abandoned - having appealed, having put on four grounds of appeal, two of which related to the result of the trial, in other words, on the evidence there should have been a different result, abandoned those at the trial. So, the only question for your Honours can be whether, in the circumstances, it could not have been proper for two judges of appeal to say, in what is essentially a fact-finding exercise, "Do the facts in this case enliven this principle of law?" May it please your Honours.

GLEESON CJ: Yes, Mr Morrison.

MR MORRISON: Your Honours, the respondent's principal reason for opposing special leave is a suggestion that the applicant is seeking to challenge here the trial judge's reasoning process. That is not the case. We are seeking to do what we did in the Court of Appeal and that is argue that that reasoning process, or the lack of it, is a perpetuation of the perception of bias created by the earlier remarks of the trial judge. In the same way as this Court in Vakauta v Kelly used the remarks about the three unfortunate doctors in New South Wales to say that even though in that case counsel had not objected to the original remarks, the repetition of them in the judgment meant that the Court had to intervene.

Your Honours, it is in that way that we used and we seek to use the errors in the reasoning process. If those errors are errors which would have either created or continued the perception of bias in the mind of a reasonable observer, then we say we are entitled to rely upon them. And we adopt precisely what Mr Justice Priestley said about that matter in his very careful judgment on the issue. And in respect of his criticisms of the treatment of the witness, the learned President below clearly associates himself.

GLEESON CJ: This case turned upon the application of well-established principles of law to the facts and circumstances of the particular case. The disagreement in the Court of Appeal demonstrates that different views as to the application of the principles to the facts were reasonably open but the case does not raise an issue appropriate to the grant of special leave to appeal. The application is dismissed.

Can you resist an order for costs, Mr Morrison?

MR MORRISON: No, your Honour.

GLEESON CJ: The applicant must pay the respondent's costs of the application.

AT 10.28 AM THE MATTER WAS CONCLUDED