New South Wales Supreme Court CITATION : Allied Express Transport Pty Ltd & Ors v Transport Workers' Union of Australia NSW Branch & Anor [2003] NSWSC 659 revised - 22/07/2003 HEARING DATE(S) : 22/07/03 JUDGMENT DATE : 22 July 2003 JUDGMENT OF : Shaw J DECISION : (1) The matter to be relisted by the List Judge or list clerk; (2) Costs reserved. CATCHWORDS : Practice and procedure - application to disqualify from hearing - relevant principles where judge is former adviser LEGISLATION CITED : Defamation Act 1974 CASES CITED : Re Polites; ex parte Hoyts Pty Ltd (1991) 173 CLR 78 Allied Express Transport Pty Ltd - First plainitff Colin Albert McDowell - Second plaintiff PARTIES : Mitchell Lee McDowell - Third plaintiff Transport Workers' Union of Australia NSW Branch - First defendant Bruce Penton - Second defendant FILE NUMBER(S) : SC 21021/01 COUNSEL : M Neil, QC with D Caspersonn - Plaintiffs M Lynch - Defendants SOLICITORS : Baker & McKenzie - Plaintiffs McClellands - Defendants IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Shaw J 22 July 2003 21021 of 2001 Allied Express Transport Pty Limited (First plaintiff); Colin Albert McDowell (Second plaintiff); Mitchell Lee McDowell (Third plaintiff) v Transport Workers' Union of Australia New South Wales Branch (First defendant); Bruce Penton (Second defendant); JUDGMENT 1 Shaw J: With some reluctance I must say, I think that I should not hear this case. It is true that I have acted as counsel on a number of occasions in various industrial matters for the first defendant in the proceedings. However, it is also true, on the authority of Re Polites; ex parte Hoyts Pty Ltd (1991) 173 CLR 78, that the legal principle is that a prior relationship of legal adviser and client does not generally disqualify the former adviser, who has become a member of a tribunal or a court, from sitting in proceedings before the tribunal to which the former client is a party. I have referred to this principle previously in Spanswick v The Honourable Robert John Carr, MP [2003] NSWSC 393 at [10] – [16]. 2 I have had no involvement in the controversy presently before the Court. It arises out of alleged imputations from certain criticisms articulated by the defendant union in relation to the payment, or lack thereof, of a Christmas bonus payable to the employees. 3 Nonetheless, Mr Neil, QC, both in chambers and in open court, has put to me that this is not a normal case, or a typical case, under s 7A of the Defamation Act 1974 (NSW) in the sense that there would be, as I understand it, many rulings required of the judge as compared to the substantial issue being determined by the jury and, in those circumstances, I think there is some basis for the disqualification, although I must say I think it is a marginal case. 4 The test is not actual bias - although that can emerge in some unusual cases - but rather the perception of bias and I must, I think, bear steadily in mind the interests of the perception of justice being done and the standing of this Court and the problem if any party were to think that they were not going to be treated fairly and objectively. 5 I personally have no doubt about my ability to deal with this matter objectively and to conduct the trial appropriately but, nonetheless, there is the problem of perception. In those circumstances, and as I say with some regret, I think I should not hear the matter. 6 That means, unfortunately, that the matter may not be able to be dealt with today and, therefore, I would accede to Mr Neil's application that the matter be referred to the List Judge for re-allocation and re-listing. 7 I also accept what Mr Neil has said, that it is common ground that the costs in the matter should be costs in the cause. 8 Accordingly, having made those orders, I will adjourn the Court. oOo Last Modified: 07/23/2003 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.