New South Wales Court of Appeal CITATION: John Fairfax Publications Pty Ltd v Maurice Kriss [2007] NSWCA 79 HEARING DATE(S): 26 March 2007 JUDGMENT DATE: 4 April 2007 JUDGMENT OF: Hodgson JA at 1; Ipp JA at 1; Handley AJA at 1 DECISION: (1) Appeal allowed with costs.; (2) Judgment of the Common Law Division set aside.; (3) Order that there be a new trial of the action before another judge of the Division.; (4) The costs of the first trial are to abide the order of the judge presiding at the second trial.; (5) The respondent is to have a certificate under the Suitors' Fund Act 1951. CATCHWORDS: COURTS & JUDGES – disqualification of judge – apparent bias - waiver Antoun v The Queen (2006) 80 ALJR 497 Beinstein v Beinstein (2003) 195 ALR 225 CASES CITED: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Johnson v Johnson (2000) 201 CLR 488 Vakauta v Kelly (1989) 167 CLR 568 PARTIES: John Fairfax Publications Pty Ltd (Appellant) Maurice Kriss (Respondent) FILE NUMBER(S): CA 40530 of 2006 COUNSEL: T Blackburn SC/R Glasson (Appellant) C A Evatt/C J Dibb (Respondent) SOLICITORS: Freehills (Appellant) H M Symonds & Britten (Respondent) LOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): SC 20535 of 2002 LOWER COURT JUDICIAL OFFICER: Adams J LOWER COURT DATE OF DECISION: 28 July 2006 LOWER COURT MEDIUM NEUTRAL CITATION: [2006] NSWSC 758 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40530 of 2006 HODGSON JA IPP JA HANDLEY AJA 4 APRIL 2007 JOHN FAIRFAX PUBLICATIONS PTY LTD v MAURICE KRISS CATCHWORDS COURTS & JUDGES – disqualification of judge – apparent bias - waiver FACTS The respondent who had been struck off the roll of barristers made an application for readmission which was granted by a Judge. The appellant published an article which contrasted the plaintiff's readmission with the situation of barristers who had been or were about to be struck off for failure to comply with their income tax obligations. A jury at a s 7A trial found that the article conveyed an imputation that defamed the respondent. The balance of the trial came on for hearing before a Supreme Court Judge. At the start of the second day of the trial counsel for the appellant asked the Judge to disqualify himself. The application was based on comments made by the Judge during the opening address of counsel for the respondent, and further remarks made when dealing with an objection to evidence during the respondent's evidence in chief. The Judge overruled the objection and the trial continued. The Judge delivered a reserved judgment in which he found for the plaintiff in defamation and injurious falsehood and awarded damages of $101,008. On appeal HELD: (1) The established test for the disqualification of a judicial officer for apparent or ostensible bias is "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide". The test, which involves a double possibility, establishes a relatively low threshold; (2) The appearance of bias to a lay observer may be conveyed by the use of loose language without the judge being actually biased; (3) The passages relied upon by the appellant, with one exception, established a basis for disqualification; (4) The appellant had not waived its right to rely on the Judge's disqualification by waiting until the next morning before making the application. Counsel were entitled to wait for the transcript and to obtain express instructions. ORDERS (1) Appeal allowed with costs. (2) Judgment of the Common Law Division set aside. (3) Order that there be a new trial of the action before another judge of the Division. (4) The costs of the first trial are to abide the order of the judge presiding at the second trial. (5) The respondent is to have a certificate under the Suitors' Fund Act 1951. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40530 of 2006 HODGSON JA IPP JA HANDLEY AJA 4 APRIL 2007 JOHN FAIRFAX PUBLICATIONS PTY LTD v MAURICE KRISS Judgment 1 THE COURT: This is an application for a new trial, or in the alternative an appeal from the decision of a judge in an action for defamation and injurious falsehood. On Saturday, 2 November 2002 the appellant published the following in the Sydney Morning Herald in its column "Sauce" (the paragraphs have been numbered for convenience): "[1] Silk's purse empty [2] Here's a turn-up for the books. Maurie the Marvellous – struck-off, erstwhile bankrupt barrister – is set to make a comeback and we've got just the right client in mind for him. [3] Maurie's return is a marvel, given the amount of traffic heading the other way. For example, joining the ranks of those on the verge of being struck off is QC Clarrie Stevens who, despite running a successful practice specialising in tax matters, was unable to file a return of his own for 24 years. Meanwhile, Australia's most bankrupted disbarred barrister, Stephen Archer, has been bankrupted by the Tax Office for the third time. [4] Which brings us to Maurice Kriss, an aged pensioner who's been working as a barman and cleaner at the Portland RSL Club, near Lithgow. Maurie, who was struck off some seven years ago, recently won a Supreme Court battle against the Legal Practitioners Admission Board and the Bar Association. [5] Not that poor Maurie ever had much experience as a barrister in the first place. He was pushing 50 when he threw in his job as a builder of prefabricated homes to take his place at the bar. But before he became accustomed to wearing his fine horse-hair wig, poor Maurie was struck off for some shoddy financial-legal advice to a Mrs Bach. [6] Not only did he lose his appeal against being struck off, he was also ordered to pay the Bar Association's $100,000 costs, which he couldn't, so the association bankrupted him. [7] But now Maurie's back. As Acting Justice Cooper said, 'There is no suggestion that his bankruptcy involved any moral turpitude' and that 'the plaintiff's only income, since about February 1998, has been social security pensions, first carer's pension and then, when he turned 65, an age pension. His only assets are $5000 in the bank and personal effects. He lives in a house at Portland, which is owned by his wife, from whom he separated in 1996. In the current proceedings he has been represented on a pro bono basis.' In the light of all of the evidence, said the judge, 'the plaintiff has comfortably satisfied the court that over the past almost seven years he has lived an exemplary life. He has demonstrated integrity, honesty and probity. He has comfortably satisfied the court that those early errors did not reflect any permanent defect in character'. [8] With that glowing recommendation, could Sauce offer his services to the gent who recently put an ad in the Herald seeking the services of a lawyer? That person had to be an outstanding individual with a sense of humour under pressure, read the advertisement. 'Apply by email to: Jodee Rich, jdrich@optusnet.com.au,' it concluded." 2 At the s 7A trial the jury found that the following imputation was conveyed and was defamatory: "The plaintiff was a bankrupt barrister who was struck off for some shoddy financial legal advice to a Mrs Bach." 3 The only defences to the publications in New South Wales were that the imputation and contextual imputations were matters of substantial truth and related to matters of public interest. Similar defences were pleaded in relation to publications in the other States and the mainland Territories. 4 The trial of the remaining issues in the claim for defamation and the issues in the claim for injurious falsehood based on the same article commenced before Adams J on 2 November 2005. Malice is an essential element in a claim for injurious falsehood, but in the defamation action it was not an element of the cause of action or relevant to the defences although in some circumstances it could be relevant on damages. 5 The following exchange took place during the opening of Mr Evatt, who was leading counsel for the plaintiff (black 3-4): "Mr Evatt: … I have no idea what a 'silk's purse is empty' means. His Honour: I can imagine what it means. Mr Evatt: I would be grateful to your Honour. He [the plaintiff] is not a silk. His Honour: You don't expect a journalist to understand that, or care. What do they know? They might know everything, but they don't care. Silk is a good expression for a barrister, and it was a nice pun . Mr Evatt: I prefer that to 'can't make a silk purse out of a sow's ear'. His Honour: I think that's part of the nuance, and of course there has been a lot of publicity about bankrupt QCs. Mr Evatt: At that time The Herald had been conducting a campaign. His Honour: I think it's obvious enough. It's a reporter's loose interpretation for the purpose of a neat headline of barrister. Mr Evatt: There had been this campaign then against barristers. I am not saying it was unjustified, because none of them seemed to pay any tax. His Honour: Mr Evatt it was unjustified in that it plainly carried the suggestion that the whole of the bar was involved . Mr Evatt: It did. His Honour: And that's one of the reasons, I think, why the bar as a whole, deeply resented those of its members who had acted in this way, because all felt traduced by what had happened. It's obvious that The Herald didn't care much about the distinction . Mr Evatt: Can I take your Honour to paragraph 2. 'Here's a turn-up for the books' that means the rank outsider gets up. 'Maurie the Marvellous'. His Honour: … There is no need to take me through each element of it. Mr Evatt: What right do they have to call him Maurie quite frankly. His Honour: I agree it's cheeky, but let's be real. Mr Evatt: … many of the statements in this article are false and untrue. His Honour: But it also has a very substantial report of the judge's finding that 'over the past seven years … honesty and probity'. Most members of the public I think would, prima facie, take the view they prefer a court report to a reporter's slur, wouldn't they? Mr Evatt: With respect no. What they are really saying is that [the] judge got it wrong. His Honour: Now do I know enough to get on with the case?" (emphasis supplied). 6 After the lunch adjournment the plaintiff was called as a witness. An objection by Mr Blackburn SC, leading counsel for the defendant, to a question asked by Mr Evatt, prompted the following exchange (black 20-22): "Q: 'Maurie the Marvellous', have you heard that expression used about you before? A: No one has ever called me that, no. Q: How did you find that? Did you like that expression? A: I found it belittling. First of all they used the name 'Maurie' as if they had known me for a long time. Blackburn: I object to this and I will explain to the Court why. Mr Kriss has sued on but one imputation, that is the imputation arising directly out of paragraph 5, that he was struck off for some shoddy financial legal advice for Mrs Bach. He has not sued on any imputation that in some way arises out of the expression 'Silk's purse empty', that he is the equivalent of a sow's ear that someone has tried to make a silk purse out of, he has not sued on the imputation that someone called him 'Maurie'. His Honour: The name makes him look as though he is a bookie's clerk, doesn't it? That is what it is about. It is plainly belittling. Whether he can rely on it is another matter. Blackburn: It is just irrelevant your Honour … His Honour: It goes to two questions here, and the first is the plaintiff's own response of hurt to what he read; that may be explained or understood by the context in which it appears. Blackburn: May it please the Court. His Honour: Just one moment, that is one way of relevance, I am not sure if you seek to suggest it cannot be used in that way. Let me move to the next one so you can answer it. The next possible sense of relevance is to properly assess the significance of the quotation from the judgment. On one reading of this, everything is belittling, it is unremitting, every sentence is honed with exquisite precision to injure . Blackburn: I am not sure about that, your Honour. His Honour: I cannot see anything else . Blackburn: Except at least for those passages taken from the judgment. His Honour: That is the point" (emphasis supplied). 7 The plaintiff completed his evidence in chief and Mr Blackburn commenced his cross-examination which had not finished when the Court adjourned for the day. The following morning Mr Blackburn made an application that the Judge disqualify himself for apparent or ostensible bias. This was rejected and the trial continued. 8 The Judge reserved his decision and delivered judgment in July 2006. He rejected all defences, assessed the plaintiff's damages for defamation in the sum of $100,000, the damages for injurious falsehood in the sum of $1,008 and entered judgment for the plaintiff accordingly. 9 The defendant appealed maintaining its claim of ostensible bias which would lead to a new trial and, in the alternative, challenging the final judgment on the merits. The Court heard argument on the issue of ostensible bias and deferred argument on the merits. Since we are of the view that there must be a new trial we will not express any view on the merits issues. 10 The test for deciding whether a judicial officer is disqualified by reason of the appearance of bias was stated by Gleeson CJ, Gaudron, McHugh, Gummow and Callinan JJ in Johnson v Johnson (2000) 201 CLR 488, 492: "It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias … is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide." 11 The test requires the court to consider possibilities ("might") at two stages. As Gleeson CJ, McHugh, Gummow and Hayne JJ said in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [7]: "The question is one of possibility (real and not remote), not probability". Thus the test, for good reason, establishes a relatively low threshold. However as the High Court said in Johnson (above) at 493: "The observer is taken to be reasonable; and the person being observed is 'a professional judge whose training, tradition and oath or affirmation require him [or her] to discard the irrelevant, the immaterial and the prejudicial'." 12 The appearance of bias to a lay observer may be conveyed by the use of loose language without the judge being actually biased at all. In most of the cases where a judge has been disqualified for ostensible bias there was, in all probability, no actual bias. The principle exists not only to protect litigants from actual bias and injustice, but to maintain public confidence in the courts by ensuring that justice appears to be done. 13 The case for the appellant depended on the words alone and no reliance was placed upon the Judge's tone or demeanour when they were uttered. Most were said during counsel's opening, before the Judge had heard evidence or legal argument and the rest were said early in the plaintiff's evidence in chief. 14 In our opinion the discussion of the meaning of the heading "Silk's purse empty" was not such that a fair-minded lay observer might reasonably apprehend any bias against journalists, the defendant or the print media. The Judge's statement that "you don't expect" a journalist to understand the distinction between a silk and a junior only meant that journalists as outsiders may not be aware of professional distinctions. His statement that they don't care, in context, only meant that journalists would think that such professional niceties were not important and should not get in the way of a good headline. As his Honour said a little later: "It's a reporter's loose interpretation for the purpose of a neat headline". 15 The headline was not the basis of a separate imputation and his Honour's remarks were not directed to an issue or a matter relevant to an issue. As McHugh, Kirby and Callinan JJ said in Beinstein v Beinstein (2003) 195 ALR 225, 231: "Bias exists if the Judge might not bring an impartial and unprejudiced mind to the resolution of the issues." 16 The second matter relied on was the discussion with Mr Evatt about "the campaign" being conducted by The Herald. This was of some relevance because the article contrasted the readmission of the plaintiff with the disbarring of barristers who had not been paying their income tax. The Judge's statement "it was unjustified in that it plainly carried the suggestion that the whole of the bar was involved" might be seen as evidencing a view that The Herald, without justification, had defamed the whole class. This was followed by his statement that it was "obvious" that The Herald "didn't care" which might be seen as evidencing a view that The Herald did not care that it had traduced the whole of the Bar because of the actions of a few. 17 This attitude, said to be "obvious" from The Herald's campaign, could be relevant where the plaintiff was alleging that a journalist had written a defamatory article based on a court judgment without taking enough care to get it right. The Judge's comments were such that, particularly when combined with the later comments, a fair-minded lay observer might reasonably apprehend an attitude towards The Herald such that the Judge might not bring an impartial and unprejudiced mind to the resolution of the claim against that newspaper. 18 The next comment relied on was the contrast drawn by the Judge between the attitude of the public to the judgment of a court and to "a reporter's slur". A slur was what the plaintiff was complaining about. A fair-minded lay observer might apprehend this as passing judgment in pejorative terms on statements in the article. 19 The last matter relied upon was the exchange with Mr Blackburn following his objection to a question by Mr Evatt. During the exchange the Judge said of the article: "On one reading of this, everything is belittling, it is unremitting, every sentence is honed with exquisite precision to injure". 20 Although he used colourful language his statement had begun with "On one reading of this" which seemed to indicate that the article could be read another way. In that event the question would be one for legal argument in due course. However when Mr Blackburn demurred to the description the Judge said: "I cannot see anything else". This could be seen as indicating that the Judge had made up his mind and that his adverse view was a considered one. 21 The view thus expressed by the Judge may have been entirely correct, but this is not relevant at that early stage. As Callinan J said in Antoun v The Queen (2006) 80 ALJR 497, 517 paras [83] and [85]: "… the fact that the case may not only at the time, but also in retrospect, seem to be a strong one, indeed a very strong one, does not absolve the judge from giving it a fair hearing … it is not relevant to the enquiry as to whether an apprehension of bias has arisen that the strength of one party's case may have brought the judge to the point of making the remarks that he did." 22 Malice was an issue in the claim for injurious falsehood, and it might also be relevant to the assessment of damages for defamation. The plaintiff's particulars of malice, which were not then before the Judge, indicated that he was relying on the terms of the article as evidence of malice. The Judge at an early stage had expressed strong views that could be seen as indicating pre-judgment on an issue. 23 The claim for injurious falsehood was a minor part of the overall case, but this cannot affect the application of the principle that a judge who evinces ostensible bias is disqualified. 24 When all the passages relied on, apart from the first, are considered together, there was enough in our judgment to establish the basis for disqualification. 25 Mr Evatt, for the respondent, argued with some force that the appellant had waived the objection by waiting until the next morning before making an application to the Judge to disqualify himself. Delay in this case was significant because the trial only lasted three days. The principle relied on was considered in Vakauta v Kelly (1989) 167 CLR 568, 579. As Dawson J explained at 588 it prevents a litigant from taking up two inconsistent positions and involves an application of the doctrine of election (Handley "Estoppel by Conduct and Election" p 285). 26 Mr Blackburn made no actual election to waive any disqualification, and an election cannot be imputed in this case because the delay until the next morning was not unreasonable in the circumstances. The appellant is a frequent litigant in the Supreme Court and Mr Blackburn was entitled, if not bound, to seek express instructions before making the application. He was also entitled to wait until the official transcript could be obtained and considered and this could not occur under normal circumstances until after 6pm that evening. 27 The transcript would enable the representative of the lay client to evaluate the evidence and any advice before giving instructions. The transcript would also avoid any unseemly debate between counsel and the Judge as to what was actually said. By waiting until the next morning the appellant's counsel did not elect to waive the objection. 28 The following orders should be made: (1) Appeal allowed with costs. (2) Judgment of the Common Law Division set aside. (3) Order that there be a new trial of the action before another judge of the Division. (4) The costs of the first trial are to abide the order of the judge presiding at the second trial. (5) The respondent is to have a certificate under the Suitors' Fund Act 1951. ********** 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.