New South Wales Supreme Court CITATION : Hagan v Independent Commission Against Corruption [2002] NSWSC 686 CURRENT JURISDICTION: Common Law Division Administrative Law List FILE NUMBER(S) : SC 30039/01 HEARING DATE(S) : 8 March 2002 JUDGMENT DATE : 9 August 2002 PARTIES : Patricia Agnes Hagan (Plaintiff) Independent Commission Against Corruption (Defendant) JUDGMENT OF : Dunford J COUNSEL : RJ Bromwich (Defendant) SOLICITORS : Waterhouse Solicitors (Plaintiff) IV Knight, Crown Solicitor (Defendant) CATCHWORDS : CONSTITUTIONAL LAW - appointment of judges - power of Governor - no power in Court to compel appointment of non-resident judge to hear case in the Court - CONSTITUTIONAL LAW - independence of judiciary - security of tenure - immunity from interference by executive government - acting judges - annual renewal of commissions - COURTS & JUDGES - apprehended bias - allegations of judge fixing and corruption - whether allegation of apprehended bias on part of all judges of the Court sustainable. Supreme Court Act 1970, ss 26, 37, 39 Constitution Act 1902, Parts 2A, 4, s 53 Judicial Officers Act 1986, ss 41, 44 LEGISLATION CITED : Act of Settlement 1700 (Imp.) Imperial Acts Application Act 1966, s 6 Oaths Act 1900, ss 8, 12, Fourth Sched. Independent Commission Against Corruption Act 1988, s 20A Heydon v NRMA Ltd [2000] NSWCA 374, 51 NSWLR 1 CASES CITED : Rajski v Wood (1989) 18 NSWLR 512 Ebner v The Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337 DECISION : See para 26. IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW list DUNFORD J Friday, 9 AUGUST 2002 30039/01 Patricia Agnes HAGAN v Independent Commission Against Corruption (ICAC) JUDGMENT 1 His Honour: By Amended Summons filed on 2 July 2001, the plaintiff claims: 1. A declaration or other order, pursuant to s 65 of the Supreme Court Act, to the effect that in determining to discontinue its investigation of the plaintiff's complaints of corruption, ICAC No. EOO/0122 as amended, the defendant failed to observe the rules of procedural fairness. 2. A declaration or other order, pursuant to s 65 of the Supreme Court Act, to the effect that in failing to refer the plaintiff's complaints of corruption, ICAC No. EEO/0122 as amended, for investigation or other action by an independent person or body, pursuant to s 53 of the Independent Commission Against Corruption Act 1988, or otherwise, the defendant has failed to accord to the plaintiff procedural fairness. 3. A declaration or other order that the defendant has by disposing of the plaintiff's complaints of corruption, ICAC No. EEO/0122 as amended, in the manner it has, failed to fulfil the duties imposed upon it by the Independent Commission Against Corruption Act 1988 . 4. A declaration or other order, pursuant to s 65 of the Supreme Court Act , that the determination(s) expressed by the defendant, in its letters to the plaintiff's solicitors on 18 December 2000, 19 December 2000 and/or 11 April 2001, respecting complaints of corruption, ICAC No. EEO/0122 as amended, acted without or in excess of its jurisdiction. 5. A declaration or other order that the said expressed determination(s) were wrong in law. together with further or other appropriate orders and an order for costs. 2 A copy of complaint EOO/0122 is annexed to one of the affidavits of the plaintiff sworn 28 May 2001 and relates to certain proceedings in the Equity Division of this Court. The complaint and subsequent correspondence from the plaintiff's solicitor to ICAC in support of the complaint contain most serious allegations against a former Judge of this Court, a former Premier of this State and others, including somewhat general allegations against politicians of the Australian Labor Party and a complaint that the present Commissioner of ICAC is a friend of the current Premier of this State and this has inhibited the investigation of the complaint. There is also an allegation that the original complaint written to the then Liberal Attorney General of this State was improperly intercepted by someone in the Attorney General's Department and its contents leaked to the former Premier referred to. 3 The complaint includes allegations of "judge-fixing", corruption, and the giving of false evidence in the trial of the proceedings. I do not intend to set out the details of the complaint because at this stage it is merely a complaint and most, if not all, of the material to which I have been directed as substantiating it consists of hearsay, rumour, suggestion, supposition, innuendo and so-called "belief" rather than admissible, credible evidence, except to say that the allegation described as "judge-fixing" is to the effect that the former Premier, who was a friend of one of the principal defendants in the case, "arranged" for a particular Judge who was another friend of his to hear the case. Because of the scandalous nature of a lot of the material and the lack of proper evidence to support it, I ordered that the material contained in the files and in the affidavits is not to be disclosed outside the courtroom to anyone who is not a party until further order (transcript of 8 March 2002 at 15 and 24), and such order remains in force. 4 On 18 December 2000, ICAC advised the plaintiff's solicitors that the complaint had been subject to a preliminary investigation conducted pursuant to s 20A of the Independent Commission Against Corruption Act 1988 and that following such investigation and certain internal procedures the Commission would not be pursuing the matter any further. On 5 January 2001 the plaintiff's solicitor wrote to ICAC alleging in effect that the refusal to investigate fully was a "cover-up" and by letter of 11 April ICAC replied that these further allegations had been investigated and that it had been determined that the allegations should not be the subject of any further investigation. 5 Proceedings were then commenced by Summons filed in the Court of Appeal on 28 May 2001 and on 25 June 2001 the proceedings were remitted to this List in this Division, and subsequently the Amended Summons was filed on 2 July 2001 as noted above. 6 The defendant, ICAC, has on 5 July 2001 filed a Notice of Motion for Summary Judgment pursuant to Part 13 r 5 but this has not been dealt with and the proceedings presently before me are the Notice of Motion filed by the plaintiff on 18 January 2002 seeking the following orders: "1)(i) That this matter be determined only by a Justice/s not of this Court. (ii) That the means by which the aforesaid Justice/s be selected is such that the Justice/s selected are beyond political influence and the influence of the Australian Labor Party. 2) Such further or other orders or relief as the nature of the case may require." 7 The evidence contained in the plaintiff's two affidavits and annexures was objected to, but I admitted it on a limited basis, namely to determine the nature of the issues and not as evidence of the facts purported to be alleged therein. 8 The plaintiff submitted that ICAC is trying to stop an inquiry into "judge-fixing" in this Court, and consequently every Judge of this Court has an interest in the outcome. Based on this proposition, she submitted that every Judge of this Court is potentially biased and therefore justice can only be served if the case is heard by a Judge who is not a Judge of this Court. This submission was made notwithstanding the fact that the Judge allegedly concerned is no longer a Judge of this Court and that there is no evidence or allegation of any "judge-fixing" in any other case. 9 It was submitted that in order to avoid any further political influence in the case, the Chief Justice or Chief Judge at Common Law has power to arrange the appointment of a Judge from outside the State to hear the case pursuant to s 39 of the Supreme Court Act 1970 ("the Act") and reference was made to the case of Heydon v NRMA Ltd [2000] NSWCA 374, 51 NSWLR 1 as an example of such a procedure being followed. But as Exhibit A makes clear, that is not what occurred in Heydon v NRMA Ltd where the Governor appointed three Judges who were Judges of Supreme Courts of other States as Acting Judges of this Court pursuant to s 37 of the Act, and following their appointment, inter-curial arrangements were made by the President of the Court of Appeal with the concurrence of the Chief Justice pursuant to s 39(1) for such Acting Judges to sit on the appeal. 10 The authority to appoint Judges in this State rests with the Governor pursuant to s 26 (Permanent Judges) or s 37 (Acting Judges) of the Act. The Office of Governor is regulated by Part 2A (ss 9A – 9I) Constitution Act 1902, and Part 4 of that Act, particularly s 35A preserves the constitutional convention that the Governor in carrying out her functions acts only on the advice of the Executive Council, which in effect means the government of the day. There is no power for anyone other than the Governor so acting to appoint a Judge of this or any other Court in this State. In particular, neither the Chief Justice nor the Chief Judge of a Division has such power; and no Judge has the power to direct the Governor to appoint any person or a person of a particular class (such as a person who is not a resident of New South Wales) to be a Judge of this, or any other, Court. 11 Section 39(2) of the Act only deals with intra-curial arrangements for the transaction of business in a Division by Judges who are already appointed as Judges and nominated to that Division. It does not confer any power on the Chief Justice or the Chief Judge of the Division to appoint, or cause to be appointed, or to compel the Governor to appoint, any person, or any class of person, as a Judge of the Court. The appointment of a particular Judge to hear a particular case is not justiciable pursuant to s 39 or otherwise: Rajski v Wood (1989) 18 NSWLR 512 at 526. 12 The Notice of Motion presently under consideration sought orders from the Chief Judge of the Common Law Division pursuant to s 39(2), but it came before me as the Administrative Law List Judge pursuant to s 28. I would refer the matter to the Chief Judge if I was of the view that s 39 conferred on him power to do anything which I was not empowered to do, and if there were reasonable grounds for taking any such action. For the reasons I have given, I am satisfied that neither the Chief Justice nor the Chief Judge has power to do anything in relation to the appointment of a Judge other than a Judge of this Court to hear the plaintiff's case. 13 The plaintiff claims that she cannot obtain a fair trial of her case from any Judge of this Court because she apprehends bias on the part of each of the Judges on two grounds, firstly, that because the case relates to "judge-fixing" in this Court, it concerns the reputation of the Court, and therefore every Judge of the Court has an interest in the outcome; and secondly, that because there is presently a Labor Government in power in New South Wales the Government may assert influence over the Judges of this Court to protect members of that party, particularly a former Premier who was allegedly involved in the "judge-fixing" and the present Premier who may have asserted influence over the Commissioner of ICAC to prevent a full investigation of the plaintiff's complaints (T8, 15-16). 14 The test for apprehended bias was recently articulated by the High Court in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337 at [8], as follows: "The apprehension of bias principle … requires two steps. First, it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge … has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed." 15 In the present case the plaintiff's first step is flawed because it is the conduct of ICAC that is in issue in these proceedings, not the conduct of the Supreme Court or any Judge thereof. It is the conduct of ICAC in refusing to further investigate the matter that is being challenged; it is not, and cannot be, the failure of ICAC to find the allegation of "judge-fixing" established. 16 But it is in the articulation of a logical connection between the matter and the feared deviation from deciding the case on its merits (the second step) that leads the plaintiff into even greater problems. The allegation relates to "judge-fixing" and corrupt judicial conduct in one case some years ago involving a Judge who has for some years been retired. There is no allegation, let alone evidence, that it has occurred in any other case; accordingly, I can see no basis for asserting that the outcome of the case affects all (or any) of the existing Judges of the Court, or that they would have any interest in its outcome or would therefore deviate from deciding the case on its merits. 17 The second basis of the alleged apprehended bias, is that because there is presently a Labor Government in power in New South Wales the Government may assert influence over the Judges of this Court. However, once again the plaintiff fails to show that there is a logical connection between that matter and the feared deviation from the course of deciding the case on its merits. 18 Judges of this Court are appointed pursuant to s 26 of the Act and the retiring age is currently fixed at 72 years: Judicial Officers Act 1986, s 44. Otherwise they cannot be removed from office except on the ground of proved misbehaviour or incapacity, as provided by s 53 of the Constitution Act 1902, and see also the Judicial Officers Act, s 41. Moreover, their salaries are secured and paid out of consolidated revenue, and cannot be reduced during their term of office. In this way the independence of Judges from all forms of political influence is secured, and the principle can be traced back to the Act of Settlement 1700 (12 and 13 Will III c 2), which remains in force in New South Wales: Imperial Acts Application Act 1966, s 6, Second Sched, Part 1; see also Blackstone's Commentaries, vol 1 at 258, CSC Sheller: Aspects of Judicial Independence, the Judicial Review, vol 5, 139 at 143. 19 The effect of these provisions is that the Judges are not appointed during the pleasure of the Government or for a limited term in the hope or expectation of renewal of their appointments, but until the fixed retiring age, with no expectation of reward or preferment from the Government of the day; and consequently they cannot be subject to political influence. This security of tenure underpins the fundamental concept of the independence of the judiciary, which is no mere empty slogan but a basic protection for all members of the community against interference by the executive government in the judicial process. It is further supported by the judicial oath or affirmation taken by all Judges on their appointment "to do right to all manner of people after the laws and usages of the State of New South Wales, without fear or favour, affection or ill-will": Oaths Act 1900, ss 8, 12, Fourth Sched. 20 Reference was made in argument to the fact that some Judges have been members of, or held office in, the Australian Labor Party. It is equally true that a number of Judges have been similarly involved in the Liberal Party prior to their appointment, and indeed, one of the presently serving Judges of this Court was Attorney General of the State in a Liberal/National Party Coalition Government; but all that becomes irrelevant once they are appointed, and they can no longer be influenced or subject to patronage on behalf of the Government of the day. 21 It follows therefore that the second step in the process referred to in Ebner is not made out, and there cannot be a reasonable apprehension of bias in the case of all the Judges of this Court. 22 These considerations do not however apply with the same force to Acting Judges. Section 37 of the Act authorises the Governor to appoint persons with the qualifications therein specified as Acting Judges of the Court for a time not exceeding 12 months, and such persons may be re-appointed for succeeding terms. Moreover, such persons may be appointed beyond the age of 72 years up to the age of 75 years. Over recent years the practice has been to appoint retired Judges of this Court and of the Federal Court of Australia as Acting Judges and such appointments are frequently renewed annually until the Acting Judge reaches his or her 75th birthday. 23 Although there is no suggestion that any political pressure has been, or may be, exerted on any of the Acting Judges, and much less that any of them would be influenced by it, the practice of annual renewal of their commissions constitutes a fundamental breach of the concept of security of tenure for Judges, and therefore of the principle of an independent judiciary, in that it could be argued that an Acting Judge in such a position may be reluctant to make findings against persons prominent in the political party forming the executive government of the day and to whom he or she may be beholden for re-appointment. 24 For these reasons, I consider that, having regard to the issues and the persons referred to in the allegations (and I repeat that at this stage they are only allegations), this is not a suitable case to be tried by an Acting Judge and should be heard by a permanent Judge of the Court. It is not appropriate for me to give directions to the List Judge or any other Judge, and so I shall simply make a declaration that this is not a suitable case to be heard by any Acting Judge, and leave it to the List Judge to make such provision as he in his discretion considers appropriate for the allocation of a Judge. 25 It may be that a number of permanent Judges would voluntarily disqualify themselves from hearing the case because of a personal, social or professional association with the former Judge referred to, or a similar or former political association with one or more of the other parties referred to in the complaint. Such self disqualification by a Judge because of a familial, social or former professional association with a party to, or witness in, proceedings is, although infrequent, not an unknown experience, and can be left to the good sense of the Judge to whom the hearing is ultimately allocated, or alternatively, can be raised with him or her before or at the commencement of the hearing. 26 For these reasons I make a declaration that these proceedings are not suitable for hearing by an Acting Judge, and except to that extent, the Notice of Motion is dismissed. I will hear further submissions on the question of costs and on what directions should be made for the further conduct of the proceedings. ********** Last Modified: 08/13/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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