FEDERAL COURT OF AUSTRALIA Hurley v McDonald's Australia Ltd [2000] FCA 961 Federal Court of Australia Act 1976 (Cth) R v Szabo (2000) QCA 194 Webb v The Queen (1993-1994) 181 CLR 41 Vakauta v Kelly (1989) 167 CLR 568 D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118 Farrow Mortgage Services Pty Ltd (In Liquidation) v Clayton Utz (a firm), (unreported; 4 September 1995) Newman v Phillips Fox (1989) 21 WAR 309 Winston Smith (1975) 61 Cr App R 128 R v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256 RPS v The Queen [2000] HCA 3 Kunnakatil v The Queen [1998] HCA 23 Re Ratten [1974] VR 201 Jago v District Court (NSW) (1989) 168 CLR 23 JANETTE LYN HURLEY v McDONALD'S AUSTRALIA LIMITED Q 194 OF 1999 DOWSETT J 18 JULY 2000 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 194 OF 1999 BETWEEN: JANETTE LYN HURLEY APPLICANT AND: McDONALD'S AUSTRALIA LIMITED RESPONDENT JUDGE: DOWSETT J DATE OF ORDER: 18 JULY 2000 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The notice of motion filed 3 July 2000 be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 194 OF 1999 BETWEEN: JANETTE LYN HURLEY APPLICANT AND: McDONALD'S AUSTRALIA LIMITED RESPONDENT JUDGE: DOWSETT J DATE: 18 JULY 2000 PLACE: BRISBANE REASONS FOR JUDGMENT General 1 The respondent and its licensees operate a chain of "fast food" restaurants, selling a range of food products using uniform packaging. This is a so-called "class action" in which the applicant (on behalf of numerous other claimants) claims relief against the respondent arising out of a competition conducted during 1999. It is not necessary for present purposes that I describe the precise nature of the competition. Broadly speaking, it involved the supply to persons purchasing certain of the respondent's products of "game stamps" which might entitle a recipient to a substantial prize. The respondent had conducted a similar competition in 1998, although the game stamps issued for that competition are readily distinguishable from those which, as the respondent asserts, were valid for the purposes of the 1999 competition. The claimants, of whom there are a large number, say that stamps apparently printed for the 1998 competition were distributed by restaurants in the course of the 1999 competition and, as it is asserted, are valid stamps, the claimants' receipt of which entitles them to various prizes in the latter competition. Various legal bases are advanced to support such claims. The respondent relies upon legal arguments arising out of the conditions of the competition but in addition denies that any of the claimants received the disputed game stamps from the respondent's restaurants in the course of the 1999 competition. In referring to the "respondent's restaurants", I include those operated by licensees. 2 The trial commenced in October last year and has continued for more than fifty sitting days. The bulk of the evidence has been taken in Brisbane, but some has been taken in Sydney, Melbourne and Adelaide. A number of the disputed game stamps were obtained from restaurants in states other than Queensland. The evidence is now complete, and the final submissions commenced on 17 July 2000. 3 The applicants have not sought to advance any particular theory as to the way or ways in which 1998 stamps may have been issued in the course of the 1999 competition. They have steadfastly asserted that they should be believed when they say that they received their respective stamps during the 1999 competition unless the respondent can convince me otherwise. The respondent, on the other hand, has led substantial amounts of evidence concerning the design and printing of the game stamps in 1998 and 1999, their affixation to the wrapping material used in conjunction with relevant products and the distribution of that material to the restaurants. This evidence has been frequently described as the "distribution evidence". In addition the respondent has led a substantial amount of evidence from persons operating or employed in the various restaurants. That evidence has gone to the question of whether there was relevant 1998 stock left at the end of the 1998 competition, what happened to it and the possibility that it may have remained in a restaurant until the commencement of the 1999 competition. This body of evidence has been described as the "restaurant evidence". 4 The case has been conducted on affidavit. The vast bulk of the respondent's evidence was provided to the applicant in that form prior to commencement of the hearing. The applicant's evidence was heard in Brisbane in October of last year, as was the bulk of the respondent's distribution evidence. Although I invited both parties to consider whether the convenience of witnesses and questions of cost should lead to my taking evidence in centres other than Brisbane, only the respondent took advantage of this offer. As a result a substantial amount of restaurant evidence was taken in Sydney, Melbourne and Adelaide. In addition some distribution evidence was taken in Adelaide. The sittings in Sydney took place in the weeks commencing 21 February and 13 March this year. The Melbourne evidence was taken in the week commencing 28 February, and the Adelaide evidence in the week commencing 6 March. The balance of the restaurant evidence and some small amount of distribution evidence was taken in Brisbane in March, May and June. The matter was then adjourned to the week commencing 17 July for argument. The motion 5 On 3 July the applicant filed a motion seeking the following relief: 1. Pursuant to Section 33ZF(1) of the Federal Court of Australia Act, the trial be set aside; 2. That the solicitors for the Respondent be disqualified from further acting for the Respondent in these proceedings; 3. That the respondent and/or its solicitors pay the applicant's costs thrown away to be taxed; 4. That the respondent and/or its solicitors pay the applicant's costs of the application to be taxed; 5. Such further or other Order as this Honourable Court shall deem meet. The motion was heard urgently on 7 July. The facts 6 The more significant of the circumstances said to justify this extraordinary course occurred between the adjournment of the trial at the end of October last year and the commencement of the sittings in Adelaide on Monday 6 March. During the October sittings and thereafter, the person then serving as my associate (the "former associate") performed the duties normally assigned to such an officer, including attending to the exhibits. Although it may not be strictly a matter of evidence, I do not think it is disputed that from time to time, he had contact with the legal advisers on both sides concerning logistical matters such as hearing dates and locations and access to the exhibits. On 4 February this year he had such a conversation with Mr Salgo, a partner in the firm of Baker & McKenzie, solicitors for the respondent. He has the carriage of the respondent's case. In the course of the conversation it emerged that the former associate's employment with me would finish on that day. The former associate enquired as to the availability of employment with Baker & McKenzie, and Mr Salgo indicated that his firm might have a position. It was left on the basis that they would discuss the matter in the following week. The former associate has sworn that Mr Salgo declined to discuss the matter on that date, preferring to do so after his employment had ceased. 7 There was a telephone conversation in the following week and a subsequent interview in Brisbane on 11 February. A number of other telephone conversations followed, and the former associate submitted a curriculum vitae. He was subsequently interviewed in Sydney by three other partners of the firm, Mr Chapple, Mr Christopher and Ms Cox. This occurred on 22 February. On that day he also had lunch with two associates of the firm, Ms Muldoon and Mr McCredie. Of these persons, only Mr Salgo has been closely involved in this case on a continuing basis. Mr Chapple and Ms Muldoon had some limited involvement prior to October last year. On Friday, 3 March, Baker & McKenzie offered employment to the former associate. He accepted the offer. I received a telephone call from him on either 4 or 5 March advising of the appointment. I was then in Brisbane for the weekend between the Melbourne and Adelaide hearings. I considered it appropriate to raise the matter with counsel prior to the commencement of proceedings in Adelaide on Monday 6 March. Neither party raised the matter with me again until I was informed of the filing of the current notice of motion. 8 I should mention one other matter. The applicant's affidavits in support of the motion suggest concern at the possibility of disclosure of information at, or prior to the employment of the former associate. However in argument, counsel suggested the possibility of disclosure at a later time. Upon reflection, I considered it appropriate to disclose to the legal advisers that after I was told that the former associate was not to be employed by Baker & McKenzie but was rather to work at the Public Interest Advisory Centre, I permitted myself occasional social contact with him until the present motion was filed. I do not consider that to have any relevance for present purposes. 9 In support of the motion, the applicant relies primarily upon two affidavits, one by Stephen Francis Roche, a principal of the firm acting on behalf of the applicant, and one by the applicant. The exhibits to Mr Roche's affidavit demonstrate the history of the matter following my discussion with counsel on 6 March. 10 On 8 March the solicitors for the applicant wrote to the solicitors for the respondent expressing concern about the matter, saying: Given that [the former associate] may have been privy to confidential and important information which, if disclosed, could quite easily be influential to your firm, and influential to the outcome of this trial, and given the fact that it was His Honour and not your firm that raised the matter, and given the nature of this representative proceeding, we hold significant concerns regarding the potential consequences of this issue. So that we can properly advise the applicant (it may even be a matter whereby each member of the class should be made aware), please provide us with a full explanation regarding the circumstances surrounding the employment of [the former associate] by your firm at this time. We reserve our rights to further consider what steps and/or applications should be made concerning the matter. 11 Baker & McKenzie replied on 9 March, confirming that there had been an offer and acceptance of employment on 3 March and that it was expected that the former associate would commence employment early in the following week. The letter then continued: You have asked for a "full explanation" of the circumstances surrounding [the former associate's] employment by our Firm. The circumstances which relate to the concern expressed for your client (that confidential information might improperly be disclosed to us) include:- 1. We do not know whether [the former associate] is in fact privy to any "confidential and important" information as you speculate. We have not asked him and do not propose to do so. 2. [The former associate] is well aware that he is bound by various legal and other obligations not to reveal confidential information. These obligations continue beyond the termination of his employment as an associate. You have no reason to believe he would or might breach them. 3. [The former associate] will have no involvement at all in relation to the Hurley proceedings. [The former associate] will be employed in the Construction Department of this Firm (not within the Litigation Department). He will not work in the Litigation Department until such time as the Hurley proceedings before Dowsett J have been finalised. It is the Litigation Department which has the conduct of the Hurley proceedings. 4. You should appreciate that the context of [the former associate's] employment is that our firm has approximately 200 solicitors, including 150 employed solicitors, in its Sydney office. It is located on 6 floors of the AMP Centre. [The former associate] will work (while in the Construction Department) on a floor eight floors away from the lawyers in the Litigation Department. 5. Until the determination of the trial Judge's dealings with the Hurley proceedings, [the former associate] will not do any work which may involve McDonald's. 6. In these circumstances, we do not believe Ms Hurley or any member of the represented class could have any cause for concern. However, if your Firm or Ms Hurley does propose to take any step at all, or make any applications concerning [the former associate's] employment by our Firm please let us know exactly what is proposed, and the basis for any steps to be taken, by return. 12 Paragraph 1 implies, without stating, that there had been no discussion involving confidential information. The balance of the letter was concerned with steps to be taken to avoid future disclosure. 13 On 13 March the solicitors for the applicant wrote expressing their dissatisfaction with the reply. The following passages are particularly relevant: Firstly, we do not accept that you do not know whether [the former associate] is or has been privy to confidential and important information. Your comments contained in paragraph 2 are, with respect, presumptuous. How do you know what [the former associate] is aware of and how can you say that it is not likely that a comment would be made to or by [the former associate] in an offhand matter as to what the Judge was thinking as to this particular case. It is irrelevant as to which department of the firm [the former associate] is working in and it is trite to imply that given he will be 8 floors away from the Litigation Department, he will be completely quarantined. To imply that he will not work in the Litigation Department until after this action is finalised implies that you have discussed with him this action and it's relationship to him. We repeat that we are concerned about the implications of your firm employing the sitting judge's former associate who has been privy to sensitive information in a climate where we represent a class of some 6000 people from all over Australia. Our concern is only heightened by your failure to provide a full explanation as to the circumstances of his employment, how it came about, what relating to this case was discussed at the interviews, what discussions concerning this case have occurred with members of your firm, what information about this case was divulged. We propose to speak to our client about the matter at length early this week, but before we do so, we require your full and proper response. Finally, and so that there is no misunderstanding, we do have certain information in our possession that causes us to seek this information from you in the most clearest of terms. Once we receive your explanation we will then consider whether our clients will be content with an undertaking by all the relevant parties at your end or whether we will have to take this matter further. 14 The reference to "certain information in our possession" is, I was told in the course of argument, a reference to a curriculum vitae apparently supplied to the solicitors for the applicant in March this year by an employment agency which suggested the former associate as a possible employee of that firm. That curriculum vitae differs in content from that supplied to Mr Salgo. The letter challenges the assertion previously made by Baker & McKenzie that they did not know whether the former associate held confidential information, but does not give any reason for so doing. It appears to contemplate the possibility that the former associate might be employed by Baker & McKenzie in circumstances which would be unobjectionable from the applicant's point of view. 15 On 14 March the solicitors for the respondent replied relevantly as follows: The letter we wrote dated 9 March 2000 addressed the concern you expressed in your earlier correspondence. However we provide the following further information responsive to your requests: 1. On the last day or second last day of [the former associate's] employment with Justice Dowsett, in early February 2000, Mr Salgo spoke to [the former associate] to discuss access to Exhibits in the proceedings. After that discussion [the former associate] said he would be leaving his position with the Judge on that or the next day, that he was looking for work as a graduate solicitor, and asked about applying to Baker & McKenzie. Mr Salgo said [the former associate] should call him during the following week. 2. [The former associate] called Mr Salgo during the following week. Interviews were arranged and held. [the former associate] was interviewed by 4 partners (Andrew Salgo, Mark Chapple, Julieanne Cox, Andrew Christopher). He also had lunch with two associates. 3. There was no discussion with [the former associate] of the progress, merits or substance of the Hurley proceedings. 4. The fact that the Hurley proceedings had not concluded was raised with [the former associate], to the end of ensuring that it would be proper for him to be employed by our firm on the basis that he would work outside the litigation group until the Hurley proceedings were concluded, and that there would be an engagement letter prepared which would set out arrangements appropriate to confirm there would be no disclosure of any information which [the former associate] might have obtained, and to confirm that [the former associate] was alert to whatever duties of confidentiality he had (and he said he was). No engagement letter has yet been prepared and sent to [the former associate]. 5. No information was divulged by or to [the former associate] concerning the Hurley proceedings. In the light of the content of our letter of 9 March 2000 and this letter we would be grateful to have your unequivocal confirmation that Ms Hurley has no objection to [the former associate's] employment with our firm, on the basis outlined in our correspondence. Could you please give your confirmation by return. 16 This letter focuses upon the possibility of past disclosures rather than the arrangements to prevent future disclosure, although those arrangements had apparently been mentioned in discussions with the former associate. The letter effectively reflects the focus of that to which it was replying. On 20 March Baker & McKenzie again wrote to the solicitors for the applicant, pointing out that they had received no response to their letter of 14 March and asking for an urgent reply. On 22 March the solicitors for the applicant wrote relevantly as follows: We understand that the trial judge indicated in chambers that this was a delicate matter and may take some time. This is a very serious matter. We are taking advice on the matter and will revert to you when we are in a position to do so. We have not been informed of the specific content of each of the conversations that have taken place between [the former associate] and the various members of your firm with whom he has now had contact. Please provide those details. Although, after being pressed, you generalised about the chronology of events that have taken place in respect of [the former associate], please provide us with the information requested in the above paragraph. We make the observation that whether you employ [the former associate], having already had significant contact with him, is a matter for your firm, not Ms Hurley. Our interest is to protect the Applicant and the 5000 group members in relation to the integrity of these proceedings. 17 This letter also appears to focus upon past disclosure rather than possible future disclosure, the penultimate paragraph even suggesting no real interest in the conditions of any future employment. On 23 March the solicitors for the respondent wrote relevantly as follows: In responding to your previous questions raised in your letter of 13 March 2000, we had informed you of the facts that during [the former associate's] interviews with members of our firm: (a) there was no discussion with him of the progress, merits or substance of the Hurley proceedings; and (b) no information was divulged by or to [the former associate] concerning the Hurley proceedings. We have since informed [the former associate] of your firm's and Ms Hurley's concerns as to his prospective employment by Baker & McKenzie. Propositions (a) and (b) above, of course, remain completely true. You have now asked to be informed of the specific content of those conversations which did occur between [the former associate] and members of our firm. This question was not asked by your letter of 13 March 2000. All questions raised in that letter were answered, and in a manner that could cause no apprehension to Ms Hurley at all. Your recent further question would require us to relate the content of the interviews with no possible bearing upon any legitimate concern or interest which Ms Hurley could conceivably have. We will not provide this irrelevant information to you. 18 The solicitors for the respondent wrote again on the same day as follows: We refer to previous communications in relation to the ex-Associate of Justice Dowsett, … . We are disappointed at the position taken by Ms Hurley in those communications. In our opinion, the employment of [the former associate] by our firm in circumstances which have been discussed in correspondence between us, can and should raise no concern at all for Ms Hurley in relation to what you have described as the "integrity" of the Hurley Federal Court proceedings. The relevant circumstances include: · we do not know whether [the former associate] is privy to any confidential information at all, and we have no reason to assume that is the case; · [the former associate] is under a legal obligation not to reveal any confidential information he has knowledge of arising from his employment with Justice Dowsett, and there is no reason to believe he would act contrary to that obligation; · the foreshadowed employment of [the former associate] by Baker & McKenzie was to be both physically, and by his area of work, totally removed from the Hurley proceedings and from those people involved in the conduct of the Hurley proceedings while the proceedings continued before Dowsett J; · there has been no discussion with [the former associate] of the progress, merits or substance of the Hurley proceedings, and we have informed you of that, and no such discussion would occur in the future; · no information has been divulged by or to [the former associate] concerning the Hurley proceedings, and we have informed you of that, and no such information would be divulged in the future. In all those circumstances, we believe it would be quite proper and unobjectionable for [the former associate] to commence work with our firm, in its Construction Law section, as contemplated. Notwithstanding all these matters, in your letter of 22 March 2000 you do not withdraw your and Ms Hurley's objection to [the former associate] being employed by our firm. Your 22 March 2000 letter indicates that you are "taking advice" and no time is specified by which you will revert to us. We regard the position taken by your firm and Ms Hurley in correspondence as without any reasonable foundation. However, we are unwilling to employ [the former associate] during the currency of the Hurley proceedings without you and Ms Hurley giving your unequivocal assurance that you have no objection to this course. We do not propose to allow Ms Hurley the opportunity to complain, even in a misconceived or disingenuous fashion, about our employment of [the former associate]. The following is now the position: · we have withdrawn our offer of employment to [the former associate]. [the former associate] has agreed to that course; · we expect [the former associate] will be employed, from a date to be agreed, but probably from next week, by the Public Interest Advocacy Centre. Our firm will make payment to the Public Interest Advocacy Centre to cover the cost of [the former associate's] salary and associated on-costs. This is an ordinary means of operation for the Public Interest Advocacy Centre together with law firms in Sydney; · our intention is that after the Hurley proceedings come to a conclusion before Justice Dowsett, [the former associate] will be offered employment by our firm. 19 On 15 May the solicitors for the applicant wrote relevantly: We note you have refused to provide us with details of the exact communications that took place between [the former associate] and various members of your firm. To allay the concerns of the Applicant and the several thousand group members in these proceedings, please provide us with sworn affidavits from [the former associate] and each member of your firm to whom he has had contact confirming that the Hurley proceedings have not been discussed, or if they have been discussed the exact nature and extent of those discussions. Please let us have the sworn affidavits within seven days. Should these not be forthcoming, we anticipate seeking orders from the Court. We again point out that this is a most serious matter, which was raised, not by your firm, but by the trial judge and in the circumstances the Applicant and the group members are, on the advice given to us, entitled to receive sworn information to allay concerns that have arisen out of your actions in employing [the former associate] in the manner you did. 20 Again, the focus is on the possibility of past disclosure. On 19 May the solicitors for the respondent wrote relevantly: We have informed you of the relevant facts relating to [the former associate]. In particular, as you have known for some time now, [the former associate] has never been employed by our firm (contrary to the inaccurate assertion contained in your letter) but took up employment at the Public Interest Advocacy Centre on the basis and for the reasons outlined in our previous correspondence. Any reasonable concern Ms Hurley or class members could have has been answered by previous correspondence. We have informed you that during [the former associate's] interviews with our firm: (a) there was no discussion with him of the progress, merits or substance of the Hurley proceedings; and (b) no information was divulged by or to [the former associate] concerning the Hurley proceedings. We believe that there is no justification for your demand for affidavit material and it will not be forthcoming. 21 In addition Mr Roche has exhibited the curriculum vitae of the former associate which his firm received as mentioned above. The relevant part appears to be the following: Assistance with preparation of judgments I was required to prepare a first draft of 12 reserve judgments for Justice Dowsett. These were in the areas of judicial review, migration law, evidence and legal professional privilege, patent law, trade practices, contract, sentencing, class actions and procedure, civil procedure and bankruptcy. I was also required to proof all judgments to ensure compliance with the uniform judgment style guide. 22 Mr Roche makes a number of other assertions. · The solicitors for the applicant had received no communication concerning the possible employment of the former associate prior to my disclosure. · A Mr Rolf Moses is described in the Baker & McKenzie website as the firm's "hiring partner". It seems that this information is incorrect in that Mr Moses is not a partner. · Baker & McKenzie's recruitment processes normally involve the receipt of applications from graduate solicitors through agencies, followed by interviews with a partner and a member of the Human Resources Department (presumably not a lawyer). · The Public Interest Advocacy Centre (PIAC) is a non-profit organization. It is not unusual for large firms to pay for new graduates to work at the Centre for periods of about six months. · In the course of my time on the Federal Court I have not attended to any representative or class action other than this case. · This trial involves potentially thousands of claimants and may therefore continue for some years. 23 Mr Roche then expresses his concern at the discussions between Mr Salgo and the former associate, the recruiting process which was adopted in this case, the failure to disclose the matter to the applicant's solicitors at an earlier stage and as to the subsequent conduct of Baker & McKenzie. He asserts a concern on the part of the applicant that the respondent has derived an advantage in this case "in that its attitude towards possible settlement and its conduct of its defence may have been influenced by such action". 24 The applicant has also sworn an affidavit. She was first informed of these events on 14 June. That in itself may have some relevance, given the lengthy period of time which had by then elapsed following the initial disclosure. She was told of that disclosure, of the subsequent correspondence between the firms and of the curriculum vitae received by her solicitors. She was then asked to comment. She said that: · she did not think that the Judge's associate should "have been allowed to go to McDonald's solicitors or to mine"; · she became angry with the Judge and that "he should have told his clerk that he should not work for the solicitors on the case, but that he should have worked with someone who had nothing to do with the case"; · Baker & McKenzie should not have taken him; · she thought it was planned and had been done for a reason; · the matter should have been brought up in open court and not been discussed secretly; · she thought the associate would know too much; · had the associate been employed by her solicitors she would have been angry at them; and · McDonald's solicitors had taken him as a special person because they knew he has information. 25 To the extent that it may be relevant, I observe at this stage that there are at least two substantial misconceptions inherent in the applicant's reaction. The first is the belief that I or anybody else had authority to restrain either Baker & McKenzie or the former associate from entering into an agreement for employment. The second is the apparent perception that the matter was kept secret from her because it was raised in chambers. Of course it was raised to enable her solicitors to take appropriate instructions should they consider it necessary to do so. Whilst it may be understandable that Ms Hurley has these misconceptions, it should not be assumed that her responses were necessarily informed. She also appears not to have been aware, or not to have considered any continuing duty upon the former associate to maintain the confidentiality of information derived in the course of his employment. She also has not considered the possibility that Baker & McKenzie might, for ethical or practical reasons, consider it to be inappropriate to receive any such information. 26 The respondent has now filed a number of affidavits by the various partners and associates who had contact with the former associate who has also sworn an affidavit. Mr Salgo sets out the history leading to the engagement of the former associate. He swears: · that he has not discussed this case with the former associate; · that he has received no information as to anything said by the former associate to his partners/associates concerning these proceedings; · that nothing said by the former associate has in any way affected the conduct of the case; · that had there been any such disclosure by the former associate, it would have raised a question-mark as to his suitability for employment; · that the employment procedure referred to by Mr Roche is not that normally followed in the Litigation Department in which Mr Salgo and the other named Baker & McKenzie personnel are located; and · that the firm intended that the former associate work in the Construction Division until the conclusion of the present hearings, but that this proposal was abandoned because of the difficulties caused by the solicitors for the applicant. 27 To Mr Salgo's affidavit is exhibited the curriculum vitae supplied to him by the former associate. It is in a form different from that supplied to Mr Roche's firm. Mr Salgo's document describes the relevant duties performed by an associate as including "case management, file management, case analysis, legal research, judgment preparation and writing …". 28 The other affidavits filed by the respondent also exclude the possibility of any communication of confidential information by the former associate. The law 29 The applicant's argument is, as I understand it, that should this trial proceed to judgment, an ordinary, fair-minded and informed citizen in the position of the applicant would have at least a lingering suspicion that she had not enjoyed the benefit of fair play. This proposition is derived to some extent from the judgment of Thomas JA in a recent decision of the Queensland Court of Appeal in R v Szabo (2000) QCA 194. I will refer to that decision in more detail at a later stage. Two distinct lines of authority are reflected in the applicant's argument. The first concerns judicial bias. In Webb v The Queen (1993-1994) 181 CLR 41 at 47, Mason CJ and McHugh J stated the test of bias in this way: When it is alleged that a judge has been or might be actuated by bias, this Court has held that the proper test is whether fair-minded people might reasonably apprehend or suspect that the judge has pre-judged or might pre-judge the case … . … The principle behind the reasonable apprehension or suspicion test is that it is of "fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done". 30 Webbwas a case in which a juror in a murder trial handed a posy of flowers to a woman at the court, asking that she give them to the mother of the deceased. As it happened, the woman to whom that request was made was the mother of the deceased's fiancée. The juror subsequently said that she had not considered the matter to have been of importance and that she was rather impulsive. At 53, Mason CJ and McHugh J said: [The trial Judge] accepted that the contact between the juror and the mother of the deceased's fiancée was spontaneous. If his Honour had applied the correct test, it would be difficult to interfere with the exercise of his discretion to continue the trial with that juror being part of the jury. He had the opportunity to see the juror. A fair-minded person would give considerable weight to the judge's conclusion that the public ventilation of the incident – together with an appropriate warning – would nullify the inference otherwise to be drawn from the irregularity. 31 At 55 their Honours continued: It was certainly open to the trial judge to find that the conduct of the juror gave rise to a reasonable apprehension of her inability to perform her task in a detached manner. Moreover, we think that his Honour should have concluded that the conduct of the juror did give rise to a reasonable apprehension of a lack of impartiality. But a finding that the incident gave rise to a reasonable apprehension of bias is not the end of the matter. The fair-minded and informed observer would also consider the effect of the judge's warning on the juror and the judge's assessment of the character of the juror. We have already set out the passage where the learned judge said that he thought that, even if there was a risk of bias or prejudice, the case could be met with an appropriate warning. That was an opinion that a fair-minded person would not lightly reject. Further, the learned judge made findings concerning the juror and gave a warning which a fair-minded and informed person was bound to consider. 32 At 88 Toohey J said: There can be no reasonable apprehension of her actions being construed as bias against the appellants or either of them as distinct from sympathy for the mother of the deceased. While that sympathy was manifested in an unusual way, it remained to a fair-minded observer a case of sympathy. Any dangers associated with it were readily capable of being avoided by the express directions the trial judge gave to the jury. And the juror's own reaction, her apology and expression of concern, points to the likelihood that she, as well as the other jurors, would observe those directions. 33 In Vakauta v Kelly (1989) 167 CLR 568, the trial Judge had made robustly critical remarks concerning certain medical witnesses in a personal injuries case, suggesting that based upon previous experience, he had doubts as to the reliability of their opinions. At 570-572 Brennan, Deane and Gaudron JJ observed that in the jurisdiction in question, it was inevitable that experienced Judges would have preconceived views as to the reliability and impartiality of some medical witnesses. Their Honours continued: The requirement of the reality and the appearance of impartial justice in the administration of the law by the courts is one which must be observed in the real world of actual litigation. That requirement will not be infringed merely because a judge carries with him or her the knowledge that some medical witnesses, who are regularly called to give evidence on behalf of particular classes of plaintiffs (e.g. members of a particular trade union), are likely to be less sceptical of a plaintiff's claim and less optimistic in their prognosis of the extent of future recovery than are other medical witnesses who are regularly called to give evidence on behalf of particular classes of defendants (e.g. those whose liability is covered by a particular insurer). If it were so infringed, the administration of justice in personal injuries cases would be all but impossible. In that regard, both necessity and common sense require that a distinction be drawn between the case where a judge has some pre conceived views about the expertise or reliability of the professional opinions of an expert witness and the case where a judge has pre-conceived views about the credit or trustworthiness of a non-expert witness "whose evidence is of significance on … a question of fact" which "constitutes a live and significant issue" in the case … . 34 At 572 their Honours continued: Where such comments [concerning witnesses] which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her. 35 At 577 Dawson J said: There can, I think, be no doubt that an objection upon the ground of bias can be waived. Even where it is a question of the public apprehension of bias, the parties themselves must be competent to waive the objection. Although justice must manifestly be seen to be done, where a party, being aware of his right to object, waives that right, there will be little danger of the appearance of injustice. In the case of a criminal prosecution where the public is directly interested in the outcome, it may be different, … . 36 At 587 Toohey J said: There is no reason why, in authority or in principle, a litigant who is fully aware of the circumstances from which ostensible bias might be inferred, should not be capable of waiving the right later to object to the judge continuing to hear and dispose of the case. That is not to say that the litigant in such a position must expressly call upon the judge to withdraw from the case. It may be enough that counsel make clear that objection is taken to what the judge has said, by reason of the way in which the remarks will be viewed. It will then be for the judge to determine what course to adopt, in particular whether to stand down from the case. For counsel to invite the judge to withdraw from the case may be quite premature, particularly if the judge acknowledges the apparent bias in what has been said and thereafter takes steps to dispel that apprehension. … In the result, when a party is in a position to object but takes no steps to do so, that party cannot be heard to complain later that the judge was biased. 37 These decisions identify three considerations which may be relevant for present purposes. They are: · that the possibility of perceived bias must be assessed having regard to "the real world of actual litigation"; · that a perception of bias may be dispelled in the course of the trial; and · that a party suspecting bias must take the point and not stand by, awaiting the outcome of events. The applicant does not allege bias or perception of bias. 38 The second line of cases concerns the threatened misuse of confidential information. These cases have usually involved a solicitor acting, or threatening to act against a former client. Where the solicitor has received confidential information in the course of the earlier retainer, he or she may be restrained from subsequently acting against the former client where there is a risk that such confidential information will be used to his or her detriment. In some cases it has been accepted that arrangements may be put in place within the solicitor's office to ensure that those who have the conduct of the second matter will not have access to information derived from the former client. 39 The Court has power to intervene where there is a risk of such mischief. Relevant recent examples are to be found in the judgment of Bryson J in D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118, in Farrow Mortgage Services Pty Ltd (In Liquidation) v Clayton Utz (a firm), (unreported; judgment delivered 4 September 1995), a decision of White J in the Supreme Court of Queensland, and in Newman v Phillips Fox (1989) 21 WAR 309, a decision of Steytler J. As appears from the last-mentioned decision, the authorities establish that the Court will act to prevent a solicitor from putting him- or herself into a position where a reasonable person, informed of the facts, might reasonably anticipate a breach of the duty not to communicate confidential information. In Newman (par 18), Steytler J identified three possible bases for such intervention: protection of confidential information, restraint of breach of fiduciary duty and the Court's control over solicitors as its officers. 40 There is no present suggestion that either Baker & McKenzie or the former associate was in a fiduciary relationship with the applicant. The applicant has no interest in any confidential information to which the former associate may be privy. Thus, only the power to supervise solicitors can be relevant for present purposes. 41 The applicant points to two criminal decisions as being more nearly comparable to the present case than the cases mentioned above. The first is a decision of the English Court of Appeal in Winston Smith (1975) 61 Cr App R 128. The facts of that case are a little difficult to understand from the report, but it seems that Smith was to stand trial on charges of assault with intent to rob, wounding and possession of an offensive weapon. Prior to the trial, he was staying in the home of a Ms Bundey, an employee of the Race Relations Board. On one occasion Ms Bundey saw a person at her home speaking to Smith and consulting papers, including depositions and a statement relevant to the trial. That person was a pupil, reading in chambers. Some time later, but before the trial, the pupil spoke to Ms Bundey, saying that the prosecution brief in the trial had now been delivered to the chambers in which he was reading. She said that this was no fault of his, but that she assumed he would take no part in the hearing. He said that he would not be in court and would take no part in the case. In the absence of any explanation as to how the pupil came to be discussing the case with Smith, I infer that he must have been known to the latter. Smith introduced him to Ms Bundey as a "barrister". The pupil attended the trial, robed, and sat behind the prosecutor. A clerk employed by Smith's solicitor was told of this and extracted some sort of undertaking that the pupil would not take part in the proceedings. Nonetheless he remained in court for most of the trial. Smith appealed against his conviction, relying upon this incident. 42 In argument, reference was made to the well-known statement of Lord Hewitt CJ in R v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256 at 259, to the effect that justice should not only be done but should manifestly and undoubtedly be seen to be done, with the proviso that a conviction will not be quashed on this ground where the applicant or his legal representative was aware of the point, might have taken it and refrained from doing so. At 130-131, the Court said: In the present case we readily assume that no information obtained by the pupil was divulged to counsel for the prosecution or used at the trial, but on the basis of that assumption it seems to us impossible to say that in the circumstances justice was seen to be done, and as to Lord Hewitt CJ's qualification we are not prepared to make the assumption that counsel for the defence, if he was informed of the undertaking, was fully aware of what had in fact happened. We are therefore satisfied that in this case there was a material irregularity in the course of the trial which requires that we should allow the appeal and quash the convictions. 43 The precise reasoning underlying this conclusion does not appear from the judgment. It seems to have been an exercise of the statutory power of a court of criminal appeal to ensure that there had been no miscarriage of justice. In view of the assumption that no information had been communicated to the prosecution, any injustice must have been as to perceptions arising from Smith's belief that the pupil was a barrister. It seems unlikely that the same result would have followed had a non-lawyer spoken to Smith concerning his case and then communicated relevant information to the prosecution. Although the reasons for judgment are somewhat elliptical, it is likely that the decision was based upon the perception that justice would not be seen to be done if the accused had confided matters concerning his defence to a barrister who later became associated with the prosecution, and that such perception was sufficient to constitute a miscarriage of justice, enlivening the statutory jurisdiction to intervene. 44 That case was considered in the second case upon which the applicant relies, the decision of the Queensland Court of Appeal in Szabo where the Court was also exercising a statutory power as a court of criminal appeal to ensure that there was no miscarriage of justice. The appellant had been charged with, and convicted of rape. Following the trial the appellant learned that his counsel had, until shortly before the trial, been in an intimate relationship with the Crown prosecutor which relationship, if not renewed in the course of the trial, was renewed shortly thereafter. The primary judgment in the case was written by Thomas JA who identified the dissimilarities between such a case and the cases of bias or perceived bias, saying at pars 9 and 10 under the heading "Alleged impropriety": The authorities contain general statements such as: "It is of fundamental importance that the parties to litigation and the general public have full confidence in the integrity, including the impartiality, of those entrusted with the administration of justice." However I am not aware of any decision which applies the well-known apparent bias test to the activity of persons other than decision makers. The authorities that deal with apparent bias do not automatically accommodate to a decision of a jury following a trial where the convicted person complains that he has suffered injustice by reason of an association between his counsel and the Crown prosecutor. The true source of law for the resolution of such a question is the power of a Court of Appeal to set aside a conviction when it considers that there was a miscarriage of justice. 45 At pars 13 and 14 his Honour continued: Certain statements in authorities in the United Kingdom which speak of "lurking doubt whether an injustice has been done" and the "general feel of the case" have not been regarded as appropriate formulations of the powers of Australian courts of criminal appeal. In Whitehorn [(1983) 152 CLR 657 at 689] the High Court considered that wide as the powers of a court of criminal appeal are, they do not under Australian legislation empower a court to set aside a verdict upon a speculative or intuitive basis. Lord Hewitt's celebrated though hackneyed words: "… it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done" have surfaced in extraordinarily diverse contexts, not all of them legal. In itself the statement is too general to afford a test that will solve individual cases, but it has played its part in the development of the law of apparent bias. A question of degree arises in determining the point at which appearances are sufficiently important to have the same destructive effect as the reality. In the area of apparent bias the courts have formulated a test based on the mind of the party or of a fair-minded and informed member of the public. The test whether justice was "seen to be done" was rejected in a New Zealand decision dealing with the trial of a man with a limited knowledge of English. The real question was recognised as whether the trial was fair, recognising the additional requirements necessitated by the language barrier. In that case however it was said that the test to be applied was whether the trial would, in the eyes of a reasonably minded observer, have appeared fair. 46 At pars 20 and 21 his Honour continued: I have concluded that in exercising jurisdiction under s 668E(1), allegations of disquiet concerning the conduct of counsel are not to be determined by direct transposition of the tests that have been formulated in relation to apparent bias on the part of decision makers, but that some analogy may properly be drawn. Bias on the part of a judicial officer is an abuse or a perceived abuse of judicial power. The disquiet that arises from the fear that counsel may have failed in their duty is a serious matter, but it is a disquiet of a different kind. It arises out of concern that a person with an important role in the trial may not have discharged it adequately in favour of the client. If a reasonable suspicion arises that defence counsel has "run dead" or colluded with the Crown prosecutor contrary to the interests of the accused or for some extraneous purpose failed to play the proper role of defence counsel, that would reveal a seriously unfair contest, and would in my view demonstrate a miscarriage of justice sufficient to require the conviction to be set aside. The question might best be posed as whether, with knowledge of all relevant circumstances, an ordinary fair-minded citizen in the position of the appellant would entertain a reasonable suspicion that justice had miscarried. Such a conclusion however does not necessarily follow from the mere fact that the Crown prosecutor and defence counsel have an association or even a sexual relationship. All relevant circumstances have to be considered, including the conduct displayed by defence counsel which might feed or rebut any suspicion of unfairness. 47 The Chief Justice and Thomas J disposed of the matter upon the ground that the barrister's failure to disclose the previous relationship was sufficient basis for a reasonable suspicion on the part of the appellant that he had not had the benefit of fair play. As the Chief Justice said at par 9: I am satisfied that in this case a reasonable observer would regard, as a matter for curious enquiry, why defence counsel, imbued with the high ideals of professional practice at the bar and owing substantial duties to the Court, and appreciating the delicacy of the process and the strength of his client's interest in securing an acquittal, would fail to disclose his substantial past, and to a degree obviously continuing, intimate association with the prosecutor. That is a matter which would concern an ordinary litigant in such a situation. That counsel failed to advert to it engenders, reasonably, suspicion or apprehension that justice may not have been done. 48 Davies JA disposed of the case upon a different ground, namely that: … a fair-minded person, having been informed of the relationship, and of the failure by the appellant's counsel to disclose it to the appellant, might have entertained a reasonable apprehension that, had it not been for that relationship, the appellant's counsel would have conducted his pre-trial conference with the appellant differently and in a way which might have disclosed a defence to the charge and, in turn, required strong advice to give evidence. 49 However one looks at Szabo, it is clear that as in Winston Smith, the Court's concern focussed upon the relationship of client and counsel. In Winston Smith the concern was the possible perception that information confided to a barrister might have been used against the client at the trial. In Szabo the possible perception was that the barrister may not have given the client the benefit of his best efforts, including his best judgment, because his affections were otherwise engaged. In each case, the power to intervene was an express statutory power. Again, neither case addresses the question presently under consideration. 50 The applicant's argument is effectively that there may be a reasonable perception that she has been deprived of her entitlement to a fair trial. She asks the Court to act to correct that situation by abandoning the present trial and excluding Baker & McKenzie from participating in any subsequent trial. To the extent that any express power is relied upon, it is said to be found in subs 33ZF(1) of the Federal Court of Australia Act 1976 (Cth) which provides: In any proceeding (including an appeal) conducted under this Part, the Court may, of its own motion or on application by a party or a group member, make any order that the Court thinks appropriate or necessary to ensure that justice is done in the proceeding. 51 The "Part" is Part 4A, concerning representative proceedings. It seems unlikely that the section confers a power to abandon a trial in circumstances in which that same step could not be taken in proceedings conducted other than under that Part. It is more likely that the section is designed to facilitate the resolution of problems which arise as a result of the peculiar nature of representative proceedings. The present problem is not of that kind. It is more likely, therefore, that any power to abandon the trial must be found either by reference to the power to supervise solicitors referred to above, or by reference to the inherent power of the Court to ensure that its proceedings are fair and that there is no miscarriage of justice. Although the former power may be wide enough to authorize the Court to exclude Baker & McKenzie from acting further in the matter, it might not authorize abandonment of the trial, given the adverse consequences for the respondent, at least in the absence of any demonstrated involvement by the respondent in the conduct on the part of Baker & McKenzie of which the applicant complains. The inherent power of the Court to regulate its own proceedings so as to avoid miscarriage of justice may be a safer basis upon which to act. For present purposes I am willing to assume that there is power to abandon a trial in circumstances in which an ordinary, fair-minded citizen in the position of a party would entertain a reasonable suspicion that justice has miscarried, or will miscarry in the event that the matter proceeds to judgment. In this context, by "miscarriage of justice" I mean that the trial is, or may appear to be unfair. 52 As Thomas JA observed in Szabo, the High Court in Whitehorn decided that the wide powers of a court of criminal appeal in this country do not justify the setting aside of a verdict upon a "speculative or intuitive basis". It is logical that the same limitation should apply for present purposes. It is therefore necessary to identify with precision the nature of the reasonable suspicion of unfairness which an ordinary, fair-minded citizen in the position of the applicant might entertain about these proceedings. That exercise necessarily involves examination of the requirements of a fair trial. A fair trial 53 One is inclined to assume that a trial will be fair if the rules of natural justice are observed and in particular, if it is decided fairly, by an unbiased tribunal, in accordance with law and on the properly admissible evidence received and tested in the course of the trial. Perception of a real deficiency in any of these areas might well lead to a perception of unfairness. The question of fairness of the trial is different from the question of bias. In RPS v The Queen [2000] HCA 3 at par 11, four members of the Court (Gaudron ACJ, Gummow, Kirby & Hayne JJ) said: But these are not complaints of bias or the appearance of bias; they amount to a complaint that the conduct of the trial was unfair. That is a radically different complaint and it is wrong to seek to apply tests developed in connection with questions of apparent bias in deciding whether the trial was fair. That question will turn largely on whether the accused has had a proper opportunity to advance his or her defence to the charge. 54 A similar approach was demonstrated by Kirby J in Kunnakatil v The Queen [1998] HCA 23 at par 54, where his Honour quoted with approval an extract from the judgment of the Full Court of the Supreme Court of Victoria in Re Ratten [1974] VR 201 at 214 as follows: Under our law a criminal trial is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing upon the question of guilt or innocence. Even the Crown has some degree of choice as to what witnesses it will call. And the accused is completely free to decide how he will conduct his defence. He has the right to choose what issues he will contest, what facts he will dispute, whether he will give evidence or not, whether he will call witnesses or not, and if he elects to call witnesses, which ones he will call. All these rights are fundamental to the conception of fair trial under our system of criminal justice. In conformity with this conception of fair trial, if an accused person can show that he has been prevented by surprise, fraud, malpractice or misfortune from presenting at his trial evidence of substantial importance which he desired to present … then ordinarily the fact that he has been tried and convicted without such evidence having been called involves that he has been deprived of his right to a fair trial and that there has, in that respect, been a miscarriage of justice. But on the other hand, if the reason why the additional evidence was not called is merely that the accused and his advisers made a deliberate choice not to call particular witnesses or a particular class of evidence, then obviously the accused has not been denied, but has exercised, his right to a fair trial, and there has been no miscarriage of justice of the kind described above. 55 Finally, I note the observations made by Deane J in Jago v District Court (NSW) (1989) 168 CLR 23 at 57: The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one. 56 Although this question has most commonly arisen in the context of criminal trials, there is no reason to believe that the approach is any different in civil trials. The general outline which I gave at the beginning of this part of my reasons seems broadly to coincide with the observations set out above. The applicant's complaints 57 The applicant's complaints are as to: · perceptions concerning the possible state of knowledge of the former associate in connection with this case; · the conduct of Baker & McKenzie in recruiting him as an employee; and · that firm's subsequent conduct in its dealings with the applicant's solicitors concerning the matter. Perceptions concerning the former associate's knowledge 58 Mr Hampson's argument was primarily that an observer would note that the associate robed in court and entered and left with me, inferring from those facts that a close association existed. Further, with some knowledge of the possible duties of an associate, such as those suggested in the two curricula vitae, it might be inferred that he would have confidential information concerning my attitude to this case. I repeat that, as I observed in the course of argument throughout this case, I have frequently raised with the parties my views, tentative or otherwise, as to its merits and as to the problems inherent in it. I doubt very much whether there is any thought, other than the most transient which has not been so ventilated. It is said that the mere fact of frequent and extensive disclosure to the parties does not eliminate the possibility that there are other thoughts which have not been so disclosed. That is at least theoretically possible. In practical terms, however, it is a little difficult to identify what those thoughts might be. This, in turn, makes it difficult to identify ways of negativing any perception of unfairness as an alternative remedy to abandoning the trial. I would expect, however, that the fair-minded observer would take into account the frequent expression of such perceptions in deciding whether or not it was likely that the associate was privy to information not known to both parties. 59 The relationship between associate and Judge is routinely described as being one of confidence. There are, I believe, substantial reasons why a Judge would expect an associate to maintain confidentiality concerning knowledge derived during his or her employment. The associate may have knowledge of the Judge's personal affairs, of relationships between Judges in the same court and of the Judge's views concerning individual practitioners, other Judges, public issues (including political issues) and other sensitive matters which, if they became public, might embarrass the Judge or detract from the capacity to fulfil his or her functions. It might also be embarrassing if knowledge of particular idiosyncrasies were to be disclosed. Disclosure of a preliminary view which was not reflected in a final decision might have a similar effect. Quite apart from such considerations, it is generally inappropriate for an associate to have close contact, other than such as is necessary in performing his or her duties, with the legal advisers for either side in pending litigation in which the Judge is involved for the same reason as a Judge avoids such contact. This is because close association might lead to a perception that the Judge himself is associated with those advisers, thus running the risk of creating a perception of bias. 60 Another area of confidentiality concerns proceedings which, by their nature require confidentiality, at least until judgment, and sometimes thereafter. Examples are orders authorizing the use of surveillance devices and telephone intercepts. Temporary confidentiality might be necessary in connection with ex parte injunctive relief, particularly "Mareva" injunctions and "Anton Piller" orders. In addition, evidence is sometimes provided on a confidential basis, either pursuant to statute or because of commercial sensitivity. Decisions may also be commercially sensitive. Premature knowledge of the content of such a decision may confer an unfair commercial benefit. 61 The applicant, however, does not point to any such matters, but rather to a concern that the associate may possess information concerning my views about this case which, if disclosed to the respondent, may offer, or may have offered an unfair advantage. Although this proposition has superficial appeal, its logic is somewhat difficult to articulate. Any communication by Judge or associate with one party or one party's legal advisers concerning pending proceedings is habitually considered to be potentially dangerous. I suspect, however, that the root cause of this perception is not a fear that confidential information will be disclosed, but a fear of perceived bias on the part of the Judge. Where the associate is no longer employed by the Judge, such contact can provide no reasonable basis for perceived bias. 62 Part of the applicant's submission is that any disclosure may assist, or have assisted the respondent in settlement negotiations. If one side has secret insight into any view formed by the Judge as to the case, it will be better equipped to predict the likely outcome and may adjust its settlement proposals accordingly. The true value of such advantage may vary, depending upon the stage at which the view in question was formed, the strength with which it was held, the reliability, or perceived reliability of the associate's report and whether or not the Judge's view is susceptible of upset on appeal. The benefit could only be assessed by comparison with the likely outcome, had the information not been disclosed. Would the matter have proceeded to judgment, and with what result? Would it have been settled anyway and on what terms? These matters might be easy to resolve in some cases and difficult in others. No Judge would want an employee or former employee to disclose such information, but again, the reason is probably a desire to avoid a perception of bias rather than a concern about fairness in the settlement process. Many factors will affect perceptions of fairness during negotiations, including the competence of, and the degree of preparation achieved by the lawyers, and their views concerning the case. A competent, well-prepared lawyer would be unlikely to change his or her approach to a case on the basis of an unverifiable assertion by a former associate who was clearly acting in a disloyal and secretive way and was therefore probably unreliable. It is likely that the fair-minded observer would share this view. 63 In any event, the settlement process is not an integral part of a fair trial. Although negotiations are almost invariably conducted in tandem with the trial, any unfairness experienced in those negotiations cannot logically affect the perceived fairness of the trial itself, provided that the impartiality of the Judge is not brought into question. It is no part of the trial Judge's function to ensure that negotiations are "fair". 64 The applicant also submits that there may be a perception that the respondent's conduct of this trial has been affected by the disclosure of information as to some view of the case which I may have. Again, this proposition has some superficial attraction but lacks logical justification. The matters in issue in a trial are divided traditionally into questions of fact and law. It is impossible to see how secret knowledge of a Judge's view of a legal question could offer any real advantage, save possibly to encourage greater research designed to persuade him or her to a contrary view. In any case, a decision based on a question of law is readily scrutinized on appeal and corrected if wrong. There would be no point in adjusting the conduct of the trial to accommodate such a view, save perhaps to "play up to" it. I doubt whether anybody really believes that such tactics are effective. 65 As to questions of fact it is, in theory, possible that a decision to call or not to call a witness or witnesses on a particular issue might be influenced by information as to the Judge's view of earlier witnesses or other evidence dealing with that issue. However the only outcome would be that further admissible evidence would be either led or not led. Of course, in acting upon such information, the legal advisers would again have to consider the reliability of the information. I find it hard to believe that any competent lawyer would base such decisions upon information as to a view previously expressed by the Judge to an associate. Again, I would expect a fair-minded observer to take account of these matters. 66 In any event, I cannot see how a party's decision to call or not to call a witness could affect the fairness, or perceived fairness of the trial, given that fairness involves notice of the issues and an opportunity to call relevant evidence. The argument assumes a proprietary interest in tactical advantages derived from decisions made by the other side, so that if a Judge discloses an attitude which provokes a reconsideration of such decisions, the other side can legitimately complain of unfairness because the other party will have an opportunity to remedy a perceived weakness or exploit a perceived strength. The fallacy of this proposition is demonstrated by the fact that if the view in question were disclosed in court, there could be no complaint, provided it did not create a perception of bias. This would be so regardless of whether the other side also had the opportunity again to address the issue. For example, if a Judge told the defendant, during its case, that evidence was lacking on a particular issue, the defendant might be able to call such evidence, but the plaintiff's knowledge of the Judge's view and of the remedial steps taken by the defendant would not enable it to take any steps in response unless it was entitled to re-open its case. Thus it cannot be assumed that the secrecy of the communication will necessarily deprive the other side of the capacity to address the same issue. 67 If the applicant has evidence which she wishes she had led, having regard to the present state of the case, and if it were arguable that the respondent's evidence on that issue had been affected by secret knowledge of my state of mind, one would expect the relevant area to have been identified. It was said in argument that the applicant is not in a position to know. It is worth repeating that the applicant has known the contents of the respondent's case in some detail since before the commencement of the trial. If there had been any significant change in direction, it would have been readily apparent. The applicant has made no attempt to identify any such change in direction. If no such change is apparent, then it is difficult to see why a fair-minded person should suspect that the respondent has derived any helpful information from the former associate. Again I observe that the real risk of a communication with one side is the possible perception of bias, and that is not presently alleged. 68 So far, I have said little about the effect upon the fair-minded observer of knowledge that a former associate would be expected, both by the Judge and by members of the profession, to maintain confidentiality in connection with information derived in the course of his or her employment. There is nothing about such an expectation which is peculiar to the legal profession. Indeed, not infrequently, the newspapers report examples of employees, particularly in government agencies, being dismissed because they have improperly disclosed information derived by them in the course of their employment. It is, I believe, well known that many employees are subject to such restrictions, legal or moral. Further, as Mr Salgo points out in his affidavit, it would not be a particularly good basis for an on-going relationship of employer and employee that the employee was known to have betrayed the confidence of a former employer. This is particularly so when the employer is a firm of solicitors. Again, such matters would be apparent to a fair-minded observer. 69 On occasions, the applicant's case came close to suggesting that Baker & McKenzie had entered into negotiations with the former associate and had employed him with the conscious intention of gaining benefit from his alleged knowledge. For reasons which I have given, it is very unlikely that any firm of solicitors, behaving reasonably, would expect to derive any substantial benefit from such knowledge. Conduct of Baker & McKenzie in recruiting the former associate 70 It is submitted on behalf of the applicant that she, or any other fair-minded observer would be justified in drawing a relevant suspicion from the circumstances surrounding the former associate's employment. In part this appears to be based upon Mr Roche's opinion that the interviewing process was other than that normally followed by Baker & McKenzie in recruiting staff. To some extent this opinion may be attributable to the incorrect assumption that Mr Moses was the partner responsible for staff recruitment when he was, in fact, an employee. Mr Roche asserts that the suspicion is also based upon the interviews which took place between Mr Salgo and the former associate on one occasion and the former associate and three other partners on a second occasion. It was urged that this utilization of resources was unusual in the case of a graduate solicitor. Mr Roche was apparently suggesting that the employment of a junior solicitor would not normally have been treated as a matter of such seriousness. If Mr Salgo or anybody else were involved in a plot to exploit any confidential information which the former associate might bring with him, it would surely have been advisable to limit those with knowledge of the plan to the smallest number possible. Further, Mr Salgo asserts, and there is no challenge to it, that the employment procedure identified by Mr Roche is not normally adopted in the Litigation Department of Baker & McKenzie. 71 I would expect that in a large firm, there would often be occasions on which a partner would seek to employ a solicitor who had caught his or her eye. The extent to which such a partner can avoid the usual recruiting process will vary from firm to firm and partner to partner. There is something quite artificial about Mr Roche's concern in this area. It is difficult to accept that a fair-minded observer would see such departure from a published practice to be in any way suspicious, given the extended and public dealings between the former associate and the legal advisers on both sides in this case. 72 Finally, it was suggested that Baker & McKenzie's failure to disclose their discussions concerning employment with the former associate, their intention to employ him and the fact of his employment prior to my disclosure of that matter are bases for suspicion. Some people, in the position in which Mr Salgo found himself, would have raised the matter with the solicitors for the applicant before commencing the interview process. That approach, with the benefit of hindsight, has attractions. At least it would have avoided the unpleasantness with which we are now faced. On the other hand, from Mr Salgo's point of view at the time, it may not have appeared necessary or appropriate. His actions may have reflected, to some extent, the nature of his relations with the solicitors for the applicant, his own experience and perceptions of the knowledge acquired by associates of particular cases in the course of their employment, the depth of his own convictions concerning confidentiality and his expectations of others in that regard. After all, no complaint is made of the fact that, from time to time, and indeed on 4 February, the former associate had conversations with legal representatives of one side or the other. Any of those conversations would have provided an opportunity to communicate, intentionally or unintentionally, confidential information. The context of a job interview is inherently no more likely to prompt such disclosure. If anything, as Mr Salgo has suggested, one might expect a candidate for employment to avoid any disclosure of personal impropriety, at least until the potential employer has disclosed unorthodox views as to ethical standards. 73 It was suggested that there might be a perception that the price of obtaining employment was the provision of confidential information or alternatively, that the employment may have been a reward for information previously communicated, either at the interviews or perhaps at some earlier stage, in other words, that Baker & McKenzie had suborned the former associate. One cannot deny the bare possibility of such an occurrence, but that is not a reason to suspect that it occurred. All of these arguments assume that a fair-minded observer would start with the propositions that Baker & McKenzie were anxious to obtain an illicit advantage and that the former associate was desirous of using such information as he had to benefit either that firm or himself. Such assumptions are not consistent with my experience of human nature, nor do I think that they are shared by most fair-minded observers. As was pointed out by Steytler J in Newman (at 320), there is a view that mobility in the legal profession is a good thing. Further, it is in the public interest that the services of solicitors be freely available and that clients have the opportunity to choose their legal advisers. If such a pessimistic view of human morality is justified, then these objectives will be difficult to achieve. Associates, articled clerks and young solicitors expect, and are expected to move within the profession. It is one thing to restrict that movement where there is a reasonable basis for fearing mischief, but that is not a good reason for alleging mischief in the absence of evidence. 74 If the applicant's case is taken at it's highest, an associate could not take employment with any solicitor retained in a case on the Judge's docket at the time of the termination of the associate's employment. It is quite likely that a Judge will say something about a case as soon as he or she has first addressed it. It is true that as the case progresses, those views become firmer and arguably more valuable to either side, but the opportunities to exploit such views diminish. Lengthy trials would also pose a particular problem, as would urgent cases arising towards the end of the associate's employment. An associate would always be faced with the risk that his or her long-term employment arrangements would be disrupted by the Judge's sudden or extended involvement in a trial in which the associate's future employer was acting. 75 With the benefit of hindsight, it may have been advisable to have said something about the proposed appointment before it took place, although the date for commencement of employment may have been a more critical point. My disclosure may have pre-empted any such communication by Baker & McKenzie. They have not said in their material that they had intended to communicate the matter to the solicitors for the applicant, but that does not preclude the possibility that at some stage, Mr Salgo may have realized that there could be some concern on the part of the applicant and taken steps to allay it, perhaps by communicating the arrangements which he then had in mind as subsequently disclosed in the letters of 9 and 14 March. 76 It was suggested by counsel for the applicant that had I not disclosed the matter, then the former associate may have commenced work at Baker & McKenzie and remained there throughout the balance of the trial, without the applicant's becoming aware of it. It seems to me, however, that the intention that he commence work whilst the trial was in progress suggests the absence of any belief on the part of Mr Salgo or anybody else at Baker & McKenzie that there was anything questionable about the appointment. It is true that Baker & McKenzie is a large firm in Sydney and that the applicant's solicitors are based in Brisbane. One cannot assume that they would inevitably have become aware of such employment. However Baker & McKenzie would have been taking a substantial risk in allowing him to start work with them if they had anything to hide. An arrangement such as that which is presently in place would have been more likely to conceal the fact that there had been inappropriate contact between Mr Salgo and the former associate. The informed observer would also take account of such matters. I can see no basis for inferring from the circumstances surrounding the former associate's appointment that it involved anything which might cause disadvantage to the applicant in the course of this trial. Those circumstances cannot, therefore, contribute to any suspicion concerning the fairness of the trial. Baker & McKenzie's conduct since the appointment 77 It was also argued that Baker & McKenzie's conduct since the appointment might found a suspicion that a miscarriage of justice may have occurred. This is based upon a construction of the correspondence between that firm and the applicant's solicitors since my disclosure on 6 March. The correspondence really speaks for itself. In the letter of 8 March the solicitors for the applicant requested "a full explanation regarding the circumstances surrounding the employment of [the former associate] by your firm at this time." The concern expressed in the letter was the possibility that the former associate possessed confidential information. In that context it is understandable that in the reply of 9 March, Baker & McKenzie concentrated upon that aspect in a way which made it clear that they had addressed the issue and had put in place a regime which they believed was adequate to prevent any such communication. The applicant's solicitors might reasonably have been critical of that arrangement, but that does not detract from the fact that Baker & McKenzie had addressed the question. Although the letter does not expressly state that there had been no communication with the former associate concerning the case, there was a clear inference to that effect available from the paragraph which states that "We do not know whether [the former associate] is in fact privy to any "confidential and important" information … . We have not asked him and do not propose to do so." The statement that the former associate was aware of his obligations in this regard was a reasonable assumption. The response as a whole was also reasonable, if somewhat aggressive in tone. 78 The solicitors for the applicant wrote again on 13 March, asserting that the letter of 9 March did not contain "a full explanation as to the circumstances of the former associate's employment …". While this may be so, as I have said, it was not unreasonable that Baker & McKenzie focussed upon their understanding of the nub of the applicant's concern. The applicant's letter then became somewhat argumentative, challenging Baker & McKenzie's assertion that they did not know whether the former associate was "privy to confidential and important information". There seems to have been no basis for rejecting that assertion, save for the later reference to "certain information". We now know that this was a reference to the curriculum vitae sent to the applicant's solicitors but not to Baker & McKenzie. The writer then asked, perhaps rhetorically, how Baker & McKenzie could know whether the former associate was aware of his obligations as to confidentiality. I consider that any member of the legal profession would expect an associate to maintain such confidentiality, whether for legal or moral reasons. The writer then criticized the proposed "quarantining" arrangements. Those criticisms may well have been valid. 79 Baker & McKenzie replied on 14 March, setting out the content of the discussion between Mr Salgo and the former associate and identifying those people from Baker & McKenzie who had spoken to him. The writer asserted that there had been no discussion as to the progress, merits or substance of this action and that the potential difficulties inherent in the fact that proceedings were continuing had been raised with the former associate to ensure that his employment was on a proper basis. It was said that the former associate had been interviewed by four named partners, Andrew Salgo, Mark Chapple, Julieanne Cox and Andrew Christopher. In Mr Salgo's affidavit, he states that he was not present at the interview conducted by the other three partners. Mr Salgo's interview had taken place in Brisbane on 11 February, whilst the second interview was in Sydney on 22 February. The applicant suggested that the letter of 14 March was equivocal in a suspicious way in this regard. I do not understand that submission. The letter concludes with a request for "your unequivocal confirmation that Ms Hurley has no objection to [the former associate's] employment with our firm, on the basis outlined in our correspondence." 80 There was no immediate response to this letter, and Baker & McKenzie wrote again on 20 March asking for "your substantive reply". On 22 March the solicitors for the applicant wrote to Baker & McKenzie saying that they were taking advice on the matter and complaining that they had not been informed of the "specific content of each of the conversations that have taken place between [the former associate] and the various members of your firm with whom he has now had contact." These details were requested. It was then observed that: We make the observation that whether you employ [the former associate], having already had significant contact with him, is a matter for your firm, not Ms Hurley. 81 This passage seems to suggest that the concern was at that time only as to any past disclosure and not as to the risk of disclosure in the future. On 23 March Baker & McKenzie wrote to the solicitors for the applicant, reiterating that there had been no discussion of the progress, merits or substance of the Hurley proceedings and that no information had been divulged by the former associate concerning these proceedings. The writer then pointed out that the applicant had not previously sought details of the "specific content of those conversations". This seems to be correct. The letter of 13 March sought information as to "what relating to this case was discussed at the interviews" and "what discussions concerning this case have occurred with members of your firm, what information about this case was divulged." There was also a request for an explanation "as to the circumstances of [the former associate's] employment." Those questions had been answered. 82 Baker & McKenzie wrote again on 23 March, recording their disappointment at the position taken by the applicant, detailing the situation as they understood it. The writer indicated that notwithstanding the fact that the firm believed that it would be appropriate for the former associate to commence work in the Construction Law section, arrangements had now been made for his temporary employment at the Public Interest Advocacy Centre. As far as I know, there was no response to this letter until 15 May. On that day, the applicant's solicitors wrote, noting the refusal to provide further details of conversations between the former associate and persons associated with Baker & McKenzie. The writer asked for "sworn affidavits from [the former associate] and each member of your firm to whom he has had contact confirming that the Hurley proceedings have not been discussed, or if they have been discussed the exact nature and extent of those discussions." No explanation was offered as to why at that late stage, affidavits should be sought. It should be noted that the applicant's concern had switched from the "specific content of each conversation" to details of any discussion concerning this matter. On 19 May Baker & McKenzie wrote, indicating that there would be no such affidavits. The notice of motion in these proceedings was filed on 3 July. 83 I see nothing in this correspondence which could justify or contribute to a suspicion of the kind asserted on behalf of the applicant. Relations between the solicitors have unfortunately become strained, although I do not know whether that is as a result of this particular issue or as a result of the wider proceedings in which they have been engaged for some time. Although the tone of letters on both sides is somewhat aggressive, that is no basis for suspicion that Baker & McKenzie have illicitly acquired confidential information about this case. One would normally expect a solicitor to accept an assurance from another in a matter of this kind although, in the end, it is a matter for the client. It is not clear to me from Ms Hurley's affidavit that she was made aware of the content of the correspondence between the solicitors, although in par 5 of her affidavit, she deposes to having been told that there had been such correspondence. She deposes, in the same paragraph, to having been shown an application for employment received by her solicitors in connection with the former associate. Presumably, if she had also been shown the correspondence, she would have said so. Far from aggravating any possible suspicion, I consider that Baker & McKenzie's correspondence ought to have been taken as an indication of good faith. The competing considerations 84 As far as I can see, the only considerations upon which the applicant relies for her suspicion are: · that the former associate worked as my associate during the trial of this action; · that arguably, he has claimed to have drafted reasons for judgment in this matter (there have been a number of interlocutory decisions); · that he had a discussion with Mr Salgo in which the question of employment was raised; · that there were further interviews and social contact between him and partners and employees of that firm after he ceased employment as my associate; · that he was offered and accepted employment on Friday 3 March; and · prior to my raising the matter on Monday 6 March, the solicitors for the respondent had not made any disclosure of the matter to the solicitors for the applicant. 85 Militating against any such suspicion are the following factors: · the moral, if not legal duty to maintain the confidentiality of information derived in the course of employment and community understanding of this; · that the respondent's case was very substantially disclosed in advance of trial in affidavit form, and that there was therefore little opportunity for any change of direction without its being obvious to the applicant; · that the applicant does not identify any such change of direction; · that it is difficult to identify any area in which a practical advantage might be derived from knowledge available to the former associate; · that I have had wide-ranging discussions with the parties in court concerning the strengths and weaknesses of the case; · that the applicant apparently does not object to the fact that the former associate spoke to Mr Salgo on 4 February concerning the case, and presumably had done so on earlier occasions in the course of the performance of his duties as associate, as he would also have spoken with the solicitors for the applicant from time to time; · that the former associate advised me of his appointment very shortly after it was made; · that Baker & McKenzie's initial intention was that the former associate be employed in an area of the firm in which he would be "quarantined" from those having the carriage of this litigation; · that Baker & McKenzie intended that he commence work immediately, so that it could not be said that any active step had been taken to conceal the fact that there had been contact between that firm and the former associate; · the inherent unreliability of information obtained in such an illicit way and the unlikelihood that any competent lawyer would base a significant decision as to the conduct of a case upon such information; · the relative frequency with which young practitioners change employment within the legal profession, with the resulting potential for breaches of confidence and the need for such matters to be regularly addressed. 86 Of course, some of the above matters may not be known to every reasonable observer, but all are quite easily discoverable. I note that some of the material relied upon by the applicant would also not necessarily be widely known, even within the legal profession. I have in mind the content of the two curricula vitae and Baker & McKenzie's recruitment policy and staffing arrangements. 87 I doubt very much whether any reasonable person would expect that the former associate had significant confidential information relevant to this case or would be likely to communicate it if he did. Nonetheless, the risk of an unreasonable suspicion may have justified some attempt to protect the integrity of such a long trial. Indeed, had I not thought as much, I would not have raised the matter with the parties. That it may have been desirable, out of an abundance of caution, to take such steps does not, of itself, justify a suspicion that the trial has miscarried. Such an abundance of caution might have led Mr Salgo to raise the matter with the solicitors for the applicant at some stage prior to my disclosure. Out of a similar abundance of caution, they may have preferred an arrangement such as that now in place rather than Baker & McKenzie's original proposal. However the events which have occurred since 6 March appear to me to have been largely unnecessary and very unfortunate. A fair assessment of all of the circumstances set out above would, in my view, lead inevitably to the conclusion that there was no basis to suspect that there had been any unfairness, let alone a miscarriage of justice. 88 I have thought it appropriate to deal with the substance of the allegations because the duties of an associate are not often considered and hopefully, my thoughts may be of benefit in the future. There are, however, three other factors, all of which indicate that the applicant's motion should fail. The first is that the former associate and all of the personnel from Baker & McKenzie who have had dealings with him have now sworn affidavits saying that there has been no disclosure concerning this case. Those affidavits were not challenged in cross-examination, although Mr Hampson for the applicant pointed out that they do not say anything about the future. Given the conduct of this matter by Baker & McKenzie, it is quite clear that the former associate is to be employed at PIAC until my involvement in this matter is completed. It is true that the termination of my involvement may be deferred for some time if any of the claims presently under consideration is successful, as many other claimants may come forward. However that is a problem which can be dealt with when it arises. For present purposes the limit of my involvement will be the delivery of judgment in connection with the thirty-four claims presently under consideration. In any event, even if it becomes necessary to resolve further claims, it is unlikely that any part of those proceedings would be compromised by the former associate's employment with Baker & McKenzie, given that his employment with me will, by then, be well in the past, and any thoughts which I may have had as to the matter will have become "merged" in my judgment. When the fair-minded observer takes into account these unchallenged affidavits, there can be no remaining suspicion concerning the fairness of these proceedings. 89 The second point is the failure by the applicant to take any point in connection with this matter before 3 July. I have referred to some of the authorities which indicate the possibility that a party may waive any entitlement to complain of perceived bias. Although some of those cases speak of waiver by standing by until after judgment, there seems no reason in principle why waiver may not be constituted by continued involvement in the proceedings for a substantial period of time after discovery of the relevant circumstances. In the present case, the applicant waited for the best part of four months. It is true that the respondent was advised of the possibility of action on numerous occasions, but despite Baker & McKenzie's demands, nothing was forthcoming until 3 July. The fair-minded observer, having regard to the correspondence since 6 March, might well reach the conclusion that the applicant's solicitors, at least, had no perception of an unfair advantage as a result of my disclosure on 6 March, but rather commenced enquiries to see whether or not they could find a basis for such a perception. Since that date, the costs incidental to some weeks of hearing have been incurred. It is difficult to see why the applicant should not be held to have elected to waive any right to relief of the present kind. 90 Thirdly, to a very great extent, our system depends upon the efforts of the trial Judge to guarantee fairness as between the parties. It is for this reason that bias or perceived bias can be fatal to a trial. Once it is conceded, as it has been here, that there is no basis for alleging bias or perception of bias on the part of the trial Judge, then the parties are very much in his or her hands. The trial Judge must closely examine his or her conscience to exclude any possibility of unfairness to either party. Where a specific incident is said to give rise to potential unfairness, the Judge must address it in considering the case. This is the primary mechanism for ensuring fairness, and it is assumed that the fair-minded observer will have faith in an unbiased Judge. This appears very clearly from the decision of the High Court in Webb. There is no reason to believe that the incident in question will result in other than a fair adjudication, based on the law and the admissible evidence led by the parties. That is a fair trial. Outcome 91 The motion will be dismissed. I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 18 July 2000 Counsel for the Applicant: Mr C E K Hampson QC Mr D Gordon Solicitor for the Applicant: Shine Roche McGowan Counsel for the Respondent: Mr D P Robinson Solicitor for the Respondent: Baker & McKenzie Date of Hearing: 7 July 2000 Date of Judgment: 18 July 2000