Smits v Roach [2006] HCA 36

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE, HEYDON AND CRENNAN JJ

LEONARDUS GERARDUS SMITS & ANOR APPELLANTS

AND

WALTER EDWARD ROACH & ORS RESPONDENTS

Smits v Roach

[2006] HCA 36

20 July 2006

S398/2005

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation

J McC Ireland QC with H Altan for the appellants (instructed by Moloney Lawyers)

T G R Parker SC with N J Owens for the respondents (instructed by Henderson Taylor Workplace Lawyers)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Smits v Roach

Courts and judges – Apprehended bias – Disqualification of judge – Right to trial by independent and impartial tribunal – Familial association – Brother of judge alleged to have an indirect pecuniary interest in outcome of proceedings – Associated party given access to judge's draft reasons in advance of delivery –Non-disclosure of association until conclusion of trial – Whether apprehension of bias reasonable – Whether connection between familial association and feared deviation from impartial decision articulated.

Courts and judges – Apprehended bias – Disqualification of judge ­– Familial association – Brother of judge alleged to have an indirect pecuniary interest in outcome of proceedings – Failure to object promptly to judge's participation in the trial – Waiver of right to object.

Legal practitioners – Barrister and client – Relationship of agency – Imputation to litigant of knowledge possessed by counsel.

Words and phrases – "apprehended bias".

1. GLEESON CJ, HEYDON AND CRENNAN JJ. The appellants, who are solicitors, were retained to act for the respondents in an action for damages for professional negligence against another firm of solicitors. The appellants and the respondents fell into dispute. The appellants ceased to act for the respondents, who were subsequently represented in the professional negligence proceedings by other solicitors. The appellants sued the respondents in the Supreme Court of New South Wales, seeking to recover professional costs to which they claimed to be entitled. They failed at first instance before McClellan J[1]. An appeal to the Court of Appeal of the Supreme Court of New South Wales (Sheller, Ipp and Bryson JJA) was partly successful[2]. The issue in the further appeal of the appellants to this Court is narrower than the issues considered by the Court of Appeal. It concerns only the ninth ground of appeal to the Court of Appeal, which was that McClellan J "erred in failing to disqualify himself on 26 June 2002 from determination of the proceedings". The Court of Appeal rejected that ground on the basis that the appellants "waived their right to seek to have the judge disqualify himself". 2. In order to explain how the questions of disqualification and waiver arose, it is necessary to describe, in broad outline, the professional negligence proceedings, and the disputes that arose between the appellants and the respondents in relation to the conduct of those proceedings.