WENTWORTH v NEW SOUTH WALES BAR ASSOCIATION SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MAHONEY JA, CLARKE JA and HopE A-JA 25 October 1991 [1991] NSWCA 281 Mahoney JA. On 17 July 1991 Katherine Wentworth ('the applicant') applied for an order that she be admitted as a barrister. The application came before Badgery-Parker J. His Honour referred the application to the Court of Appeal. The applicant was not then qualified for admission as a barrister in the ordinary sense. She had proposed to complete qualifications by completing the examinations prescribed for the purpose as conducted by the Barristers Admission Board. At the time when her application was lodged, she had not completed all of those examinations. It is, at the present time, not yet clear whether she has successfully completed all of those examinations. Her application therefore was presumably based upon s 4(1) of the Legal Profession Act 1987 which empowers the Supreme Court of New South Wales to 'admit persons as barristers, whether or not as provided by subsection (2)'. The Bar Association of New South Wales opposed her admission. It has filed grounds of its opposition and hasparticularised those grounds in detail. Interlocutory applications have been filed in the proceeding, some by the applicant and some by the Bar Association. The applications now pending fall in general into the following groups: (a) An application by the applicant that the Bar Association be dismissed from the proceeding and its particulars of objection struck out; (b) An application in relation to the power of the Court of Appeal to hear the application for admission and the composition of the Court for that purpose; (c) Applications in relation to the nature of the particulars given by the Bar Association and in respect of the form of certain of those particulars; and (d) Miscellaneous applications in relation to the inspection of Court files, subpoenas and the like. The standing in the proceeding of the New South Wales Bar Association: The applicant has contended that the Bar Association is not or should not be a party to her application and accordingly is not entitled to file or press grounds of objection in opposition to it. Her submission is: that applications for admission to the Bar are now regulated by the Legal Profession Act; that under that Act the only right in the Bar to oppose applications is that granted by s 51 of the Act to the Bar Council; and that the right so granted to the Bar Council is a right merely to appear but not to adduce evidence in oppositionto an application. Prior to the Legal Profession Act 1987 the powers of the Supreme Court in relation to the admission of barristers derived from the Charter of Justice 1823 and, it may be, from the inherent power of the Court. In re B (1981) 2 NSWLR 372 at 374 et seq, Moffitt P examined in detail the basis of the powers of the Court at that time. In that case and in other cases, the Bar Association has appeared for the purpose of opposing applications for admission to the Bar and 2 UNREPORTED JUDGMENTS for that purpose it has cross-examined witnesses and itself placed evidence before the Court. Mr Hulme QC, for the Bar Association, has pointed out that the Bar Association has appeared and adduced evidence in a large number of cases involving admission to the Bar: Ex parte Korten (1942) 59 WN (NSW) 29; The New South Wales Bar Association v Davis (1963) 109 CLR 428; and other matters: Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; Clyne v The New South Wales Bar Association (1960) 104 CLR 186. On a number of occasions, the High Court of Australia and this Court have referred to the participation of the Bar Association in proceedings involving barristers and to the assistance which the courts have derived from that participation: see, eg, Evatt v The New South Wales Bar Association (Court of Appeal, 15 December 1981, unreported). It is clear that in relation to the matters relevant to the discretion of the Supreme Court to admit or not to admit persons as barristers, issues of fact are apt to arise. It is necessary that there be some person or body able to examine thefactual material adduced for an applicant and to place before the Court such other material as may be of assistance in determining the issues raised. On some occasions a role of this kind has been performed by the Prothonotary of the Court in proceedings relating to barristers: see In re Davis (1947) 75 CLR 409; Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279. As at present advised, I am inclined to the view that it may be undesirable that the officers of the Court be involved in disputed contests of fact in this way. However that be, in the great majority of cases, this function has been performed by the Bar Association. And it is necessary that there be some person or body to perform it. Mr Garnsey QC, for the applicant, has submitted that the function, if and insofar as it is to be performed under the Legal Profession Act, should be performed by the Attorney General. In my opinion, it accords with long practice and practical necessity that the Bar Association be entitled to appear as a party in an application of the present kind and to adduce evidence in opposition to such an application. The submission made by Mr Garnsey QC for the applicant has been that, whether or not it was open to the Bar Association to perform this function prior to the Legal Profession Act, the terms of that Act exclude it from such role. His submission has been to the effect that, by virtue of that Act, there are, in substance, two matters relevant to anapplication for admission to the Bar: the competence of the applicant and her 'good fame and character'. The Act provides for the setting up of a Barristers Admission Board: s 5; and for the establishment of 'the qualifications for admission as a barrister': s 7. The Barristers Admission Board may, inter alia, through boards or other bodies examine candidates for admission as a barrister and give an approval of a person as properly qualified to be admitted. Section 4 provides: 4. (1) The Supreme Court may admit persons as barristers, whether or not as provided by subsection (2). (2) The Supreme Court shall, on any day appointed by the Supreme Court for the purpose, hear and determine any application made on that day for the admission as a barrister of a person approved by the Barristers Admission Board as a suitable candidate for admission. URJ WENTWORTH v NEW SOUTH WALES BAR ASSOCIATION (Mahoney JA) 3 (3) A barrister is an officer of the Supreme Court. (4) The Supreme Court Charter is revoked in New South Wales in so far as it relates to the admission of Barristers and Advocates.' By s 7(3) it is provided that rules made by the Barristers Admission Board under s 7 'do not limit the powers of the Supreme Court to admit any person as a barrister'. Section 9 provides: 9. A candidate, however qualified in other respects, shall not be admitted as a barrister unless the Supreme Court is satisfied that the candidate is of good fame and character. If the legislation had made no further provision, it would, I think, have been clear that the practice which previously obtained would have continued: at least it would have beenopen to the Court to allow it to do so. But, the applicant has submitted, the practice has been changed by reason essentially of s 51 of the Act. That section provides: 51. In addition to its other functions, the Bar Council may: (a) take such steps as in the opinion of the Bar Council may be necessary or proper for or with respect to the conduct of a barrister or conduct that is, or may be, a contravention of a provision of Part 9; and (b) appear by counsel before, and be heard by, the Supreme Court in the exercise of the functions of the Supreme Court: (i) under this Act or otherwise, in relation to barristers; or (ii) in relation to candidates for admission as a barrister.' Mr Garnsey's submission has been that that section does two things: by granting a right of appearance to the Bar Council, it proscribes the appearance of the Bar Association as a party in proceedings of this kind; and it limits what the Bar Council may do to appearing to make submissions upon evidence otherwise before the Court. There is force in the submissions which Mr Garnsey QC has made in this regard. As the evidence before the Court discloses, the Bar Association is a company limited by guarantee: it therefore has a corporate existence. Its objects are wide enough to include the scrutiny of applications for admission to the Bar and the opposition of such applications. The Bar Council does not, as such, have a corporate existence. It is the term applied in the Articles of Association of the Bar Association to the body or group ofpersons elected by the members of the Association to conduct the business of the Association. The Bar Council is, in relevant respects, analogous to a board of directors. In one sense the Articles of Association may be seen as creating offices and the aggregate of those offices is the Bar Council. However, as Mr Garnsey has pointed out, the Legal Profession Act refers in terms both to the 'Bar Association' and the 'Bar Council'. These are defined respectively as 'the New South Wales Bar Association' and 'the Council of the Bar Association': s 3(1). And, by s 51, the functions there referred to are added to the 'other functions' of the Bar Council. Mr Garnsey's submission is, I think, to the effect that, in this regard at least, s 51 is devoid of meaning unless it has the three effects for which he contends: the exclusion as a party of the Bar Association, the authorisation of the Bar Council to be a party, and the limitation of its functions to appearance and submissions. 4 UNREPORTED JUDGMENTS Mr Hulme QC, for the Bar Association, was not able to formulate any satisfactory explanation of why otherwise s 51 was enacted in the form it was. It is, it may be thought, somewhat curious that functions of this kind have been given to the Bar Council as such. And it is arguable that, insofar as the Bar Council acts in relation to matters of this kind, it acts, not on its own behalf or even as an agent of the Association, but as the Association itself: see O'Brien v Dawson (1942) 66 CLR 18 at 32. In the end, Mr Garnsey's submission is of the nature of an'""expressio unius' submission: it infers that because the Bar Council is referred to in s 51, others are excluded. The dangers of such an approach to legislation have been frequently adverted to: see, eg, Houssein v Under Secretary, Department of Industrial Relations and Technology (1981) 56 ALJR 217 at 219. I do not think that Mr Garnsey's submission should be accepted. It is difficult to see why the legislature should, in a Part of the Act entitled: 'Part 4 — Bar Association and Law Society', authorise the Bar Council to appear in this way. There are, in other parts of the Act, powers and functions conferred upon those who constitute, inter alia, the Bar Council: see, eg, the provisions of Part 10 relating to Professional Misconduct. But the Bar Association, as such, is also referred to in the Act. I do not think that it was the legislative intention to exclude the participation of the Bar Association in proceedings in which, for fifty years and more, it had played an important and commended role. If that were the intention of the legislature, it would, I think, have so provided in terms. I have to this point dealt with the question of principle, namely, whether the Bar Association as well as the Bar Council may be a party in proceedings relating to the admission of a barrister. But that, of course, is not the matter of substance to which Mr Garnsey's submissions have been directed. The thrust of his submissions is that the body or officers entitled to be a party to proceedings and to oppose an application for admission may do no more than make submissions: no evidence may be adduced in opposition to the application. Itis to this that I now come. I shall assume, in favour of Mr Garnsey's submissions, that it is the Bar Council alone which may be a party to such an application. But it does not follow from s 51 or otherwise that the Bar Council, on such an appearance, may not adduce evidence. The authority given to the Bar Council is to 'appear by counsel before and be heard by the Supreme Court ... in relation to candidates for admission as a barrister'. Counsel were not able to cite any decision dealing with the ambit of a power to 'appear ... and be heard ... '. I see no reason why, in the present context, such a power should be limited to the making of submissions. As I have said, it is important that there be some body or person able to assist the Court in relation to disputed issues of fact on such an application. The Bar Association has traditionally been seen as a body suited to that role. I see nothing in the terms of s 51 or otherwise to suggest that the legislature intended to restrict what could be done by the body so appearing in that interest upon issues of fact of this kind. In my opinion, therefore, the applicant's submissions in this regard fail. Mr Hulme, for the Bar Association, maintained the Association's right to appear and make submissions and to adduce evidence. When asked, he advanced the alternative submission that the Bar Council should be substituted for the Bar Association as the party in the proceeding. In my opinion, the Bar Association is a proper party to appear and to adduce evidence in accordance with objections properly taken. It istherefore not necessary to substitute the Bar Council for the com, URJ WENTWORTH v NEW SOUTH WALES BAR ASSOCIATION (Mahoney JA) 5 purpose. However, if upon the proper construction of s 51 the Bar Association be no longer a proper party, I would order that the Bar Association cease to be a party to the proceeding and that the Bar Council be a party to oppose the present application. In view of the primary conclusion at which I have arrived, it is not necessary to consider the precise form of the orders which would be appropriate for this purpose. It follows that the motion of the applicant seeking dismissal of the Bar Association from the proceedings should be dismissed with costs. (2) The composition of the Court: The applicant has indicated, at an early stage in her application, an objection to the members of the Court as presently constituted hearing the application. The Court earlier indicated, during the hearing of interlocutory proceedings, that, in accordance with the principles established by this Court in Barton v Walker (1979) 2 NSWLR 740, the question whether a judge of the court should sit upon the hearing of a proceeding was a matter to be determined by the individual judge, to the extent referred to in that decision. Subsequently, on 3 October 1991, the applicant filed a notice of motion seeking orders as follows: 1. That Mr Justice Mahoney, Mr Justice Hope and Mr Justice Clarke disqualify themselves from further hearing of these proceedings. 2. Such further and other orders as the Courts deems fit. 3. Orders."'That motion is, in terms, before the Court now. The Court indicated to Mr Garnsey QC, for the applicant, that in accordance with Barton v Walker, the Court was of the opinion that the question whether any of the present members of the Court should sit was a matter to be determined not on motion but in accordance with the principles there referred to. The correctness of Barton v Walker was not argued. However, on an earlier occasion the Court sought the assistance of the parties and in particular of the Bar Association in relation to a matter relevant to the determination of whether particular members of the Court should sit upon the present application. The matter arises in the following way. The Bar Association has indicated that, in support of its objection to the admission of the applicant as a barrister, it proposes to rely, inter alia, upon certain judgments given by the Court of Appeal in earlier proceedings in which the applicant was concerned. One of these is the judgment of the Court of 22 July 1987. I shall take that judgment by way of example. Mr Garnsey QC has indicated that his client sees portion of my judgment in that matter as an obstacle to my hearing her present application. In 1987 there were before the Court of Appeal a number of matters in which the applicant was a party. The Court considered whether those matters should be struck out as involving, amongst other things, an abuse of the process of the Court. The Court consisted of Samuels JA, Clarke JA and myself. All members of the Court were of the opinion that theproceedings which had been brought by the applicant constituted an abuse of the process of the Court. The proceedings were accordingly dismissed. In the course of my judgment in that matter I said: The proceedings, as they have been brought, and as they have been pressed before this Court, are an abuse of the process of the court. This is plainly so. If proceedings of this kind and in this form had been brought and had been pressed by a lawyer in this way, the lawyer would, in my opinion, have been in danger of proceedings for 6 UNREPORTED JUDGMENTS professional misconduct. The mixture of allegations and claims, criminal and civil, can plainly not be dealt with together or in the way which Ms Wentworth seeks to have them dealt with. It is to this that objection was taken by Mr Garnsey QC in his written submissions. Upon the hearing of the present matter, he indicated that it was on the basis of this that objection was taken. It is proper therefore to direct attention to the effect of what was there said in the present context. As I have said, the Bar Association, in its grounds of objection and the particulars of them, indicated that reliance would be placed upon, inter alia, my judgment in this matter to establish that the applicant was not a fit and proper person or a person of good fame and character apt for admission to the Bar. For the purpose of clarifying the position the Court, at an earlier stage in the proceeding, sought clarification from the Bar Association as to the way in which this matter was to be relied upon. It was, as was there indicated, possible that the Bar Association might seek to rely upon what was there said and decided upon the basis merely that it was said and decided. Alternatively, it might be alleged for the BarAssociation that what was there decided had, as to law or as to fact, been correctly decided and the facts and the law as so decided might be relied upon as such. The Bar Association was invited to clarify the manner in which it desired to conduct its case. If the latter course were adopted, then, during the hearing of the present application, I would be in a position to be asked to determine, as on a fresh application, the correctness, in fact or in law or both, of what I had on the previous occasion decided against the applicant. That would, of course, be of relevance in the determination of whether I should sit to hear the present application. When the matter arose for consideration in the context of the present notice of motion, the Court invited the Bar Association to indicate its position in this regard. Mr Hulme QC indicated that, as one of the alternative submissions to be made, the Bar Association would submit that what was said by me in my judgment of 22 July 1987 was correct in fact and in law and that reliance would be placed upon that matter. He was conscious of the significance of this for the present purpose. He indicated that because of the course which the Bar Association proposed to take, it was the submission of the Bar Association that, within the principle referred to in Livesey v The New South Wales Bar Association (1983) 151 CLR 288 at 293 et seq, there would be the appearance of pre-judgment if I were to hear this application. It was the submission of the Bar Association that it would therefore be inappropriate for me to sit. Mr Hulme's submission extended also to the other members of the Court as presently constituted. The position of Clarke JA is, the submission suggested, similar to that of myself. And, it was submitted, the same result flowed from the participation of Hope A-JA in other decisions to which counsel had referred. Mr Garnsey QC indicated that it was the intention of the applicant to contest the correctness, in fact and in law, of the conclusions at which I had arrived in the judgment of 22 July 1987 and that she would take the same course in relation to the other matters affecting the other members of the Court. Mr Hulme QC indicated that, in accordance with the Livesey principles, similar submissions would be made by the Bar Association in relation to any other member of the Court of Appeal. It was not necessary for him to pursue the detail of the reasons for those submissions. URJ WENTWORTH v NEW SOUTH WALES BAR ASSOCIATION (Mahoney JA) 7 Counsel was then asked what submissions were made in relation to the hearing of the application. It had previously been submitted, inter alia, for the applicant, that the Court of Appeal should be constituted by the appointment, as Acting Judges of Appeal, of other judges of the Supreme Court. Mr Hulme QC submitted that that was the course which his client proposed. If, in the circumstances, additional Judges of Appeal were not available, then, his submission was, the matter should be referred to a judge of the Common Law Division to be determined. It had been pointed out in argument that, in accordance with Pt 65A, the determination of matters under the LegalProfession Act 1987, in relation to the admission of barristers, was assigned to the Common Law Division: such matters had not been assigned to the Court of Appeal. As I have indicated, the question of whether a judge should hear a particular proceeding is a matter to be determined by him in the manner indicated in Barton v Walker. The members of the Court in the present matter have considered their position upon that basis. It has not been suggested that the decision of the High Court of Australia in the Polites case (1991) 65 ALJR 445, alters this position. In that case, a member of the Industrial Relations Commission had commenced to hear an application and, whilst hearing it, had decided that he should no longer sit. An application was made for an order that he continue to sit. In the course of that application the Court considered the propriety of his so doing and, in the circumstances, ordered him to continue to sit. The respondent to the application, Deputy President Polites, was in the relevant sense, subject to the jurisdiction of the High Court of Australia under s 75 of the Constitution and the matter in issue was the performance by him of a statutory duty: at 609D. The body in question was not, in the present sense, a court. I do not think that what was there decided or said renders inapplicable to the present case the principles established in Barton v Walker. The members of the Court ordinarily do not detail their reasons for a decision to participate or not to participate in a proceeding. However, the circumstances of the present case are exceptional and it is proper that I refer to the principleswhich are to be applied and the difficulties which are occasioned by them. Those principles and the application of them have led to significant difficulties in the management of business and in the determination of cases in this Court. The present is an example of these. The decision of the High Court in Livesey v New South Wales Bar Association and the decisions which have followed it have led to a substantial change in what courts may do and accordingly how disputes may be determined. Impattiality is the touchstone of our court system. And that involves two things: that the judge, in deciding a dispute, be in fact impartial; and that there be, in the relevant sense, the appearance of impartiality. These two are interrelated but it is in respect of the second, the appearance of impartiality, that difficulties have now arisen. There are essentially two vices to which attention has been directed, bias and pre-judgment. If a judge is affected by either of these, his decision may be open to objection. The line between the two is sometimes difficult to draw. But it has, in recent times, been to pre-judgment to which attention has in the main been directed. It is the duty of a judge to determine the dispute before him upon the basis of the material which is before him in that case: he should not determine a case in a particular way because, in another case, he has decided the same or a similar 8 UNREPORTED JUDGMENTS matter in the same way. And he must determine the instant case, not by what he knows of witnesses in other cases but by reference to his appreciation of them in the instant case: Vakauta v Kelly (1989) 167 CLR 568. Stated in terms of practicality, four things have emerged from Livesey and the cases which have followed it: (a) the determination of whether a judge is disqualified for pre-judgment depends on form rather than substance; (b) whether there is pre-judgment is to be judged, not according to likelihood, but according to possibility; (c) it is to be judged, not according to what the court knows, but according to the standards of a lay person; and (d) there will inevitably be the appearance of pre-judgment if the judge has previously dealt with the question which is before him in the instant case. I have stated these things in general terms and without the qualifications and exceptions to which, of course, they are subject. I have done this because I have dealt with these matters in detail elsewhere and it is not necessary for me to repeat what I there said. It is sufficient for present purpose to indicate, in terms of general principle, the difficulties which now affect the present matter. The objection taken in respect of myself is, as I have said, based upon the reasons given by me for orders made on 22 July 1987 in respect of proceedings then brought by the present applicant. The present applicant had, on 16 June 1987, filed a notice of motion in which she nominated nineteen respondents. These included, inter alia, her daughter, her uncle, her former husband, his mother, his wife, three doctors and the wife ofone of them, a police constable and a number of barristers and solicitors who, at one time or another, had been concerned in proceedings in which she had been involved. The forms of relief she sought derived, as she put the matter to the Court, from what she saw as a conspiracy against her by these nineteen respondents and from what they had done or failed to do in pursuance of that conspiracy. And she alleged various additional matters and sought relief of various kinds, some criminal and some civil. In the course of the hearing of the proceeding, the present applicant advanced contentions, claims and allegations of various kinds. She indicated to the Court, inter alia, the reasons why she had brought that proceeding and had sought in it the relief that she did. In my judgment, I set forth what she had said and reasons given by her for the bringing of the proceedings and the seeking of the relief. To take but one example, I said: Ms Wentworth has given the Court to understand that she desires this Court on this notice of motion to try Mr Rogers and the other respondents for the crimes alleged against them or, if it will not do so itself, to do what otherwise she would have it do to ensure that they are subject to criminal punishment for what she alleges they have done. She seeks also, as I have said, to have various lawyers disbarred, to have pending civil claims stayed or otherwise dealt with, and generally to have all of the potpourri of relief which she claims is appropriate to the allegations that she has made, and to have it in these proceedings. She has argued that she should have a trial of the nineteen conspirators of the criminal offences alleged against them because otherwise, as she says, she will not be able to pursue effectively the new trial of her damages claim against her URJ WENTWORTH v NEW SOUTH WALES BAR ASSOCIATION (Mahoney JA) 9 former husband and, as I understand her statement, she does not presently propose to proceed with that new trial in default ofsuch a trial of the conspirators on the criminal offences. Whether she will adhere to this is a matter which ultimately she must determine.' Upon the basis of what, as I set forth, she had said, I said: The proceedings, as they have been brought, and as they have been pressed before this Court, are an abuse of the process of the court. This is plainly so. If proceedings of this kind and in this form had been brought and had been pressed by a lawyer in this way, the lawyer would, in my opinion, have been in danger of proceedings for professional misconduct. The mixture of allegations and claims, criminal and civil, can plainly not be dealt with together or in the way which Ms Wentworth seeks to have them dealt with. It is therefore proper that that notice of motion be dismissed with costs. It is the second last paragraph on which reliance has been placed by Mr Garnsey QC in his written submissions. As I have said, the Bar Association has indicated that, in opposing the applicant's present application, it will rely both upon the fact that that judgment was given and also upon the truth of the matters stated in it. It will accordingly, if the matter be contested, seek to prove that the matters of fact to which I referred, including the statement of what Ms Wentworth said, are correct and that the assessments of fact and the conclusions of law then arrived at are also correct. Mr Garnsey QC has indicated that the applicant proposes to contest the correctness of what, in that judgment, was said. The hearing of the applicant's present application will therefore involve an examination of the very conclusions fact and of law at which I arrived in that proceeding. Within the existing principles established by Livesey and the subsequent cases, there will be an unacceptable appearanceof pre-judgment if I take part in the determination of that matter. It may be thought that there can in reality be little contest either as to the conclusions of fact and the assessments based on them or as to the conclusions of law then arrived at. But if, as is to be accepted, the instructions of the applicant in the present matter are to contest these issues, then, within the existing principles, I do not think that I should take part in the determination of them. The way in which the parties are to conduct their respective cases and, in particular, what issues of fact are to be live issues, can best be judged or predicted by the parties. It is the submission, after consideration, of both parties that a position unacceptable within the Livesey principles will arise. I am not able to conclude that they are wrong: my conclusion is that, on what is now said, they are probably right. On that basis, I shall not participate in the hearing of this application. (3) The determination of the applicant's application: The applicant contends that there are no other judges of the Court of Appeal who may within the existing principles, determine her application. It has been the submission of the Bar Association that that is correct. Both parties have referred to the possibility that additional judges of the Court of Appeal may be appointed by the Chief Justice for the purpose of constituting a Court of Appeal to hear the application. Section 51(4) of the Supreme Court Act 1970 provides: 51 (4) . Where any proceedings are pending before the Court of Appeal, the Court of Appeal may, on application by a party or of its own motion, order that the 10 UNREPORTED JUDGMENTS whole or any part of the proceedings be remitted to a Division for the determination by trial or otherwise of the proceedings or any question arising in the proceedings. Mr Hulme QC submitted that, if the matter cannot be heard by a Court of Appeal, it should be referred to the Common Law Division for determination. Under the arrangements for assignment of business, an application of the present kind is in principle assigned to the Common Law Division: see Pt 65A r 2(2). As there will be in this proceeding significant issues of fact, it is in my opinion appropriate that the matter be returned to the Common Law Division. Therefore this Court should order that the proceedings be returned to that Division for determination in the ordinary course. These applications should be dealt with by the judge who is to hear the application for admission. It is not appropriate that, if the proceedings are to be referred to the Common Law Division, they be heard by the present Court. The costs of the present applications (except insofar as they have otherwise been provided for) should be dealt with by the judge by whom ultimately the applications are determined. Clarke JA and Hope A-JA. We have had the benefit of reading the judgment of Mahoney JA in draft form. We agree with the orders that he proposes. Save for one matter, with which we deal below, we also agree with the reasons given by his Honour in support of those orders. However, the reasons which have led us to conclude that we should not sit on the hearing of the present application are different from those expressed by Mahoney JA and should be spelt out. On 6 August 1991 Senior Counsel for the claimant indicated to the court that he had been instructed to object to 'any present permanent member of the Court of Appeal sitting on this present application'. The court which was then constituted by the three judges who heard these applications had been given prior notice that this objection was to be taken and had discussed the issues raised by it prior to the commencement of the hearing on that day. Accordingly when the objection was formally taken the presiding judge noted it and said that the judges presently sitting did not feel they were precluded from sitting. Counsel for the respondent (The New South Wales Bar Association) made submissions on a number of the issues then before the court but did not advert to the objection taken by senior counsel for the claimant as to the constitution of the court. Subsequently counsel for the plaintiff lodged an outline of the plaintiffs submissions concerning a number of applications which were to be considered by the court on 8 October 1991. In those submissions the objection which we have earlier mentioned was developed and, in particular, specific reasons were given in support of the proposition that neither of us should hear these proceedings. In both cases it was said that our prior involvement with litigation in which the plaintiff was concerned gave rise to a reasonable apprehension in the mind of the plaintiff and members of the public that we may not bring an unprejudiced mind to the resolution of the issues in these proceedings. Because, however, the precise circumstances which were said to give rise to that apprehension were not identical in each case it is convenient to consider the objections against each of us separately in the first instance. WAENTWORTH v NEW SOUTH WALES BAR ASSOCIATION (Clarke JA and Hope A-JA)I The objections to Clarke JA are substantially the same as those which were raised against Mahoney JA. An appreciation of these objections requires some understanding of the history of the litigation between the plaintiff and herex-husband Mr Rogers. She alleged that on 29 January 1977 she was brutally assaulted by Mr Rogers. Four and a half years later she laid informations against him which came on for hearing in November 1981. Almost exactly one year later the Magistrate discharged Mr Rogers. The plaintiff thereupon took out a summons for prerogative relief in the nature of a direction to the Magistrate to hear and determine the case according to law. The summons was dismissed at first instance but an appeal was allowed and this court directed the Magistrate to reconsider the matter. On 18 October 1984 the Magistrate duly committed Mr Rogers for trial. In March 1985 an application to the Attorney General that no bill should be filed was made and rejected. Mr Rogers stood his trial and on 20 July 1985 was acquitted. The plaintiff then sued Mr Rogers claiming damages for assault and he filed a cross-claim for malicious prosecution. The trial was heard in November 1985 and at its conclusion the jury found against the plaintiff in her action and in favour of Mr Rogers on the cross-claim. The plaintiff appealed to this court. That appeal, which was No 8 of 1986, was heard in March 1987 and the court gave judgment in the plaintiff's favour, holding that the learned trial judge had erred in various respects concerning the admission of evidence. The order directing a new trial was entered on 14 April 1987. One of the grounds of error identified by the court was that a Mr Graham, a solicitor, ought to have been declared a hostile witness on the ground that there was material at thetrial which established that he was withholding material evidence. On 16 June 1987, some months after the order directing a new trial had been entered, the plaintiff filed a notice of motion in the appeal proceedings in which 19 opponents were named. The first twelve included Mr Rogers and a number of witnesses in the civil trial, the thirteenth to nineteenth were counsel and solicitors who had appeared or acted against the plaintiff at various times. A second notice of motion was filed in the same proceedings on 7 October 1986 joining the first 17 of the 19 joined in the first notice of motion. A third notice of motion was filed, again in the same proceedings, on 3 July 1987. The relief sought in the various notices of motions was wide reaching. It is sufficient, we think, to refer only to the relief sought in the first notice of motion and in this respect to quote from the judgment of Samuels JA given on 22 July 1987: Now let me turn to the first notice of motion. that contains 21 paragraphs and it seeks against various opponents and against various combination of opponents declarations of conspiracy, conspiracies to pervert the course of justice, attempts to pervert the course of justice, perjury and attempts to improperly influence the court. It seeks also an order that Mr Rogers be recommitted to stand his trial, that the thirteenth to seventeenth opponents be forbidden to practice law, that various opponents be "punished", that others pay damages for defamation, that the eighth opponent in addition to committal for perjury and conspiracy be removed from the police force permanently and declared to be a disgrace to the Police Force of New South Wales and that Mr Rogers be ordered to pay a sum of damages of $500,000 that being the amount which he recovered at the trial; and, finally, that the orders of this court of 6 March1987, ordering a new trial of the claim against Mr Rogers be permanently stayed. 12 UNREPORTED JUDGMENTS A number of the opponents then applied to strike out the notices of motion as abuses of process. The court unanimously concluded that they were and ordered that the three notices of motion should be dismissed. It is the plaintiff's contention that statements made by Mahoney and Clarke JJA in the course of their judgments on 22 July 1987 give rise to the reasonable apprehension on which the plaintiff bases the present application. Mahoney JA has set out in his reasons the portion of his judgment upon which reliance is placed. The passage in the judgment of Clarke JA which is said to give rise to the apprehension is: The collection of a number of criminal and civil charges against a large number of respondents in an initiating process in an appeal court and the obvious circumvention of the processes of the law designed to ensure that the rights of those persons charged with serious crimes are properly protected is, in my opinion, a blatant misuse of the court's process. It is said that insofar as the respondent has indicated that it relies on the judgments given in the applications to strike out the notices of motion — and will assert that these judgments were correct — Clarke JA has already pre judged an issue which will arise in the proceedings and could not, therefore, bring an open mind to the plaintiff's application. It must, of course, be accepted that Clarke JA has ruled that the notices of motion constituted abuses of the court process but that was a ruling of law on an issue which is, at the highest, incidental to the present application. The inquiry raised by the plaintiff's substantiveapplication primarily concerns her fame and character. Whether the filing and maintenance of the three notices of motion by the plaintiff as a lay person reflects on that fame and character, and if so, in what way, will be live issues on the hearing. On the other hand the fact that Clarke JA had earlier categorised those notices of motion as abuses of process seems to us to have little, if any, relevance to the issues with which the court will be concerned. There seem to be two objections to Hope A-JA hearing the plaintiff's application one of which seems to be somewhat obscure. It is based on his Honour's agreement with the reasons given by the President in Wentworth v Rogers (No 5), some, but not all, of which were reported in (1986) 6 NSWLR 534. In a portion of the judgment which is not reported the President considered allegations contained in a statement of claim pursuant to which the plaintiff sought to set aside the judgment entered in favour of Mr Rogers upon the ground that it was tainted by a conspiracy and fraud. Those allegations focused on a number of the witnesses who had given evidence at the trial including Mr Graham. The learned President concluded that there was no evidentiary material before the court upon which an inference of fraud or conspiracy could be drawn. In concluding his reasons the learned President said, inter alia: So far as concerns her amended statement of claim, it is my view that Young J was right to strike it out. Parts of it are scandalous, containing baseless and unsupported allegations of conspiracy on the part of judges, Crown officers, hospital employees and other, unsustained even by a scintilla of evidence. The rest of it is reliant upon evidence which, when examined,came into existence, or was known to the appellant before the judgment under attack was entered. All of it is contained in a rambling, verbose and irregular document ... The appellant's case is hopeless. This was repeatedly demonstrated by the material which she placed before the Court and upon which she WAENTWORTH v NEW SOUTH WALES BAR ASSOCIATION (Clarke JA and Hope A-JAB relied. To permit the continuance of the proceedings would not only be a burden on the Court, the public and other litigants, it would be an unnecessary harassment of the respondent. In conformity with these reasons the court dismissed the appeal from an order of the trial judge striking out the statement of claim. This occurred prior to the successful appeal from the judgment entered following the jury verdict. In the written submissions furnished on behalf of the plaintiff the complaint was made that Hope A-JA in agreeing with the president had expressed views concerning the credibility of the various witnesses and that these views were contrary to those given, particularly concerning Mr Graham, in the judgment upholding the appeal in which Hope A-JA also sat. The difficulty with the submission is that in neither case did the court consider, or express an opinion upon, the credibility or truthfulness of the witnesses. Even if the court had followed that course it is difficult to understand what relevance statements on the acceptability of the evidence of a witness other than the plaintiff, could have on the present application. The second objection has more substance. It is that Hope A-JA had expressed a concluded opinion that the plaintiff had filed a statement of claim which was not sustained by any evidence and which constituted an unnecessary harassment of Mr Rogers. This is a similar complaint to that made against Mahoney and Clarke JJA. However, in none of the cases relied upon by theplaintiff was Hope A-JA or Clarke JA required to resolve an issue of fact concerning the plaintiff or to make a finding on her credibility or character. The question of her credibility or character simply did not arise and was not considered by either of us. What is said is that we expressed conclusions that the plaintiff had, in essence, abused the process of the court, and in the case of Hope A-JA it is also said that he expressed views concerning witnesses which were adverse to the plaintiff's interests. For these reasons it is submitted that the reasonable perception will be that neither of us will be able to bring an open mind to the present proceedings. At the stage of the hearing when senior counsel for the plaintiff concluded the statement of his objections each of us tended to the view that the objections were not sound and that there was no basis upon which we should decline to sit in the case. We were, of course, mindful of two statements of the highest authority which were cited with obvious approval by the High Court in Re Polites; Ex parte Hoyts Corporation Pty Ltd, 65 ALJR 445, at 448: The relevant test has been prescribed by this Court in a number of cases and is expressed in Livesey v New South Wales Bar Association, (1983) 151 CLR 288 at 293-4 in these terms: "[The] principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it ... Although statements of the principle commonly speak of 'suspicion of bias', we prefer to avoid the use of that phrase because it sometimes conveys unintended nuances of meaning." In applying this test, it is necessary to bear in mind the caution expressed by Mason J in Re JRL; Ex parte CJL( 1986) CLR 342 at 352: "It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson (1976) 136 CLR 248 and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of 14 UNREPORTED JUDGMENTS disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way." In R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100, Dixon CJ, Williams, Webb and Fullagar JJ said (at 116): "when bias of this kind is in question, as distinguished from a bias through interest, before it amounts to a disqualification it is necessary that there should be strong grounds for supposing that the judicial or quasi-judicial officer has so acted that he cannot be expected fairly to discharge his duties. Bias must be 'real'. The officer must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons. It has been said that 'preconceived opinions — though it is unfortunate that a judge should have any — do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded', per Charles J, R v London County Council; Ex parte Empire Theatre, (1894) 71 LT 638 at 639." We were also conscious of the duty of judges to hear and decide cases to which they are assigned. It is an incident of this duty that parties are discouraged from any belief that they may, by seeking to disqualify a judge, succeed in havingtheir case heard by another judge who, according to their perception, will be more favourably disposed to their case. Mason J adverted to this duty in a passage in his judgment in JRL which immediately followed that which was cited in Polites and which reads: Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. In general these observations apply whether it is one party or both parties which seeks to have a judicial officer disqualified. The decision whether a judge should or should not sit is not made by the parties. The judge must decide whether to hear the case and, although he or she will take proper notice of the attitude of the parties, will not decline to sit simply because the parties have joined in asking that he or she do so. It should be understood that any attempts by parties to choose which judicial officer will hear their case will be firmly resisted by the court. But there is another important consideration in this case. After the plaintiff's submissions on this issue had concluded Senior Counsel for the respondent, Mr R Hulme QC, indicated to the court that his client supported the plaintiff's submissions. What he said was summarised by the learned presiding judge in these words: WAENTWORTH v NEW SOUTH WALES BAR ASSOCIATION (Clarke JA and Hope A-JAB On consideration the Bar is of the view that issues of fact which may well arise are issues of fact on whichdecisions have already been given by the various members of the court and that could give rise within existing law to an appearance of apprehended bias (or pre-judgment). The respondent is not an ordinary litigant involved in adversary litigation. As Mahoney JA has made clear the respondent participates in proceedings involving barristers in order to assist the court. There is a substantial public interest that it should do so in order that the court be apprised of all the relevant factual material upon which its judgment should be based. Any submission by a litigant of this character, which appears before the court not to foster its own interests but to assist the court, cannot be lightly dismissed. The respondent's support, in these circumstances, for the plaintiff's objections places a different complexion upon them. Both parties, including one acting in the public interest, have publicly stated that circumstances exist which require that we do not hear the case. There could be no suggestion in this case that the parties are seeking to choose the judge or tribunal who hears the case. In these circumstances we do not think that our duty requires us to sit, nor do we think that we should sit. The objection of both parties, one of whom appears to assist the court in a matter which concerns the public interest, can not lightly be disregarded and leads us to conclude that, despite our reservations, we should not sit. It is for these reasons that we agree with Mahoney JA on this issue. Orders accordingly.