Dust Diseases Tribunal of New South Wales CITATION : Claudia Jean Laurie v Amaca Pty Ltd and others [2009] NSWDDT 14 Claudia Jean Laurie (as Administratrix of the Will of Donald Laurie, Deceased) PARTIES : Amaca Pty Ltd Commonwealth of Australia British American Tobacco Australia Services Ltd MATTER NUMBER(S) : 6057 of 2006 JUDGMENT OF: Curtis J CATCHWORDS: DUST DISEASES TRIBUNAL :- disqualification for apprehended bias Brambles Australia Ltd v British American Tobacco Australia Services Ltd; Re Mowbray [2006] NSWDDT 15; [2006] 3 DDCR 580 Livesey v New South Wales Bar Association (1983) 151 CLR 288 CASES CITED: Australian National Industries Ltd v Spedley Securities Ltd (1992) 26 NSWLR 411 Re JRL; Ex parte CJL (1986) 161 CLR 342 Kwan v Kang [2003] NSWCA 336 DATES OF HEARING: 15 May 2009 DATE OF JUDGMENT: 27 May 2009 Mr J A McIntyre SC with Mr S Tzouganatos instructed by Turner Freeman appeared for the plaintiff, respondent to the motion LEGAL REPRESENTATIVES: Mr J R Sackar QC with Mr P J Brereton instructed by Corrs Chambers Westgarth appeared for the third defendant, applicant on the motion JUDGMENT: Dust Diseases Tribunal of New South Wales Matter No DDT 6057 of 2006 Claudia Jean Laurie (as Administratrix of the Will of Donald Laurie, Deceased) v Amaca Pty Limited and Commonwealth of Australia and British American Tobacco Australia Services Ltd 27 May 2009 CURTIS J RULING Introduction 1. By notice of motion filed on 9 March 2009, the third defendant, British American Tobacco Australia Services Ltd, (BATAS), seeks an order that I disqualify myself from further hearing or determining this proceeding. 2. Mrs Laurie has pleaded against BATAS that it knew that smoking of tobacco products could cause lung cancer, and that it intentionally destroyed documents tending to prove this knowledge with the intention of placing those documents beyond the reach of litigants (the so-called "document destruction policy"). 3. The same allegations were pleaded by Brambles Australia Ltd in a cross-claim against BATAS in the matter of (Re Mowbray) Brambles Australia Ltd v British American Tobacco Australia Services Ltd DDT 176 of 2001. 4. In that matter, Brambles sought an order for further and better discovery in relation to the document destruction policy, and that interlocutory application, opposed by BATAS, came before me for resolution. 5. A question arose as to whether certain otherwise privileged evidence given in an American action by Mr Frederick Gulson, a former Company Secretary and in-house solicitor to BATAS, could be adduced in the proceedings. That question was resolved by my finding that the evidence in question constituted communications "in furtherance of the commission of a fraud" within the meaning of s125 of the Evidence Act 1995 (see Brambles Australia Ltd v British American Tobacco Australia Services Ltd; Re Mowbray [2006] NSWDDT 15; [2006] 3 DDCR 580). That finding was based substantially upon my accepting the evidence of Mr Gulson, who was called before me. The allegation of fraud, as I identified it, was not simply that BATAS destroyed prejudicial documents for the purpose of suppressing evidence in anticipated litigation, but that it "dishonestly concealed this purpose by pretence of a rational non-selective housekeeping policy". 6. BATAS presently submits that this conclusion gives rise to an apprehension of bias. Relevant principles 7. The test of apprehended bias was prescribed by the High Court in Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294 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. 8. BATAS does not suggest that I am biased in the sense of bearing a pre-existing favour or disfavour for a party, but rather relies on the likelihood that, "because he has once reached a conclusion upon an issue of fact or credit one way, a judge will subsequently decide the same issue in the same way" (per Mahoney JA in Australian National Industries Ltd v Spedley Securities Ltd (1992) 26 NSWLR 411 at 439). 9. That likelihood is not of itself sufficient to raise an apprehension that a judge may not bring an impartial and unprejudiced mind to the case in hand. In Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 Mason J said: 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. 10. In this regard the judgment of the Court of Appeal (Sheller, Ipp, Tobias JJA) in Kwan v Kang [2003] NSWCA 336 is instructive. The court said: 82 While the test for apprehended bias by reason of pre-judgment is based on what may be regarded as a fairly low threshold of satisfaction, namely, "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind" to the issue, the element of reasonableness needs to be stressed. In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100 Gaudron and McHugh JJ pointed out: "A reasonable bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about an issue involved in the inquiry." 83 There must be a reasonable apprehension on the part of the fictitious observer that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she might not alter that conclusion, irrespective of the evidence or arguments presented to him or her. 84 In Re JRL; Ex parte CJL(1986) 161 CLR 342 at 352 Mason J said: "It needs to be said loudly and clearly that the ground of 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." 85 In R v Masters (1992) 26 NSWLR 450 at 471 this Court, in a joint judgment, referred to Re Polites; Ex parte Hoyts Corporation Pty Limited (No 2) (1991) 173 CLR 78 at 85-87 and Re JRL; Ex Parte CJL and said: "The effect of those unanimous pronouncements was clear. The fact that a judge has decided an issue in a particular way, and is likely to decide it in the same way when it arises again, does not amount to pre-judgment which may require him to disqualify himself in order to avoid an apprehension of bias. The reasonable apprehension which should lead to disqualification must be that the judge will not decide the case impartially or without prejudice, not simply that he or she will decide the case adversely to one party." 86 It is not unknown for judges to make findings on an interlocutory issue and to express those findings in a way that indicates that they have come to a final conclusion. If that conclusion is as to a significant issue on which the ultimate result of the trial depends, and further evidence is still to be led and final addresses are still to be made, the likely consequence is that the judge concerned will have to disqualify himself or herself. 87 The reason for this is that a finding expressed in terms of finality, when made at an interlocutory stage, will usually give the impression that the judge's mind is made up. If the judge's mind is made up before evidence and final addresses are complete, it will mean that a conclusion has been unfairly arrived at. There is then likely to be an apprehension that, when the time comes to give final judgment, the judge might not be impartial or might be prejudiced against the party who was unsuccessful in the interlocutory judgment. It will then not merely be an apprehension that the judge will decide the case adversely against that party. (Emphasis added) 11. In Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 Mason J also said: 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. 12. The appropriate test in the present case is the formulation by the High Court in Livesey (supra) at 299-300 that a reasonable apprehension of bias may arise "if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either upon a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact." 13. The question for determination in the present application is whether a fair minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if, in Re Mowbray, I expressed myself in terms of such finality that a reasonable bystander might think that I might not bring an impartial and unprejudiced mind to the questions of whether Mr Gulson is a witness of credit, and whether BATAS intentionally destroyed documents tending to prove knowledge with the intention of placing those documents beyond the reach of litigants. Application of the test 14. My reasons in Re Mowbray expressly refer to the circumstance that the findings were interlocutory and made upon the only evidence presented in the proceedings. I said: I should make it plain that BATAS has at all times maintained that its document management policies and practices at no time permitted selective destruction of prejudicial documents. The assertion by Brambles to the contrary remains a live issue for the trial . (Emphasis added). 15. I also said that "Mr Gulson's evidence stands uncontradicted. He has not yet been tested by a contrary version of events." (Emphasis added). And that: There may be good reasons why BATAS has not yet joined issue with, and called evidence to contradict, Mr Gulson, however I must determine the proceedings now before me on the evidence now before me. (Emphasis added). 16. Under the heading "Findings of fact relevant to s125" I stated: I am persuaded on the present state of the evidence that BATAS in 1985 drafted or adopted the Document Retention Policy for the purpose of fraud within the meaning of s125 of the Evidence Act . And further: In the absence of evidence to the contrary, I infer that legal advice to the effect that destruction of documents pursuant to the terms of the policy was not contrary to law, was integral to the decision by BATAS to persist with its policy of selective destruction. (Emphasis added). 17. Mr Sackar QC for BATAS submits that notwithstanding the disclaimers in the text of my reasons, my opinion as to the credit of Mr Gulson was formed "In the context of [him] being cross-examined in a red-blooded way", and that it was open to the fair minded observer to objectively form the view that over a six day hearing the parties took "full advantage" of the opportunity to lead oral evidence and cross-examine "in a mini trial." 18. This submission is inconsistent with the position taken by BATAS when it successfully moved to set aside a notice to produce served upon BATAS by the plaintiff's solicitors (by notice of motion filed 15 April 2009). The plaintiff there sought production of transcripts, affidavit evidence and submissions in Mowbray. BATAS then argued, correctly in my view, that: The fair-minded lay observer has access to, and can be presumed to have read, the reasons in Re Mowbray. He or she should not be taken to have access to the pleadings, evidence, submissions and transcript - save to the extent that they are set out in the judgment of the Tribunal. … The reasons of the Tribunal do, and should be taken to, stand alone - they cannot reasonably be qualified by anything else that was before the Tribunal. To embark on such a factual inquiry would run the risk of undermining those reasons. … There is not, and nor should there be, any factual contest [in this] application. 19. To the extent that Mr Sackar, unassisted by evidence, presses his factual assertions, it is apparent from my reasons that, far from being tested by cross-examination "in a red-blooded way" Mr Gulson's credit was subjected to no more than a peripheral attack. It is also apparent that BATAS declined to take "full advantage" of the opportunity to lead oral evidence and cross-examine. The issue of credit has not in any real sense yet been agitated. 20. Far from expressing my conclusions in terms of finality, I took pains to recognise that the assertions by Brambles as to a document destruction policy remained a live issue for the trial, that the evidence of Mr Gulson had not been tested in cross examination, and that there may be good reasons why BATAS, in an interlocutory proceeding, did not wish to take issue with, nor call evidence to contradict, Mr Gulson. 21. I accept the submission of Mr Sackar that the threshold of apprehended bias is very low. Nevertheless it is a threshold that must be crossed by a reasonable person. That person is not overly suspicious. Conclusion 22. I do not believe that, having read my published reasons in Re Mowbray, any reasonable observer might entertain a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the resolution of the questions of whether Mr Gulson is a witness of truth, and whether or not BATAS engaged in a dishonest document destruction policy. Orders 23. Motion of British and American Tobacco Australia Services Ltd that I disqualify myself is dismissed. British and American Tobacco Australia Services Ltd is to pay the plaintiff's costs. Mr J A McIntyre SC with Mr S Tzouganatos instructed by Turner Freeman appeared for the plaintiff, respondent to the motion Mr J R Sackar QC with Mr P J Brereton instructed by Corrs Chambers Westgarth appeared for the third defendant, applicant on the motion DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.