New South Wales Court of Appeal CITATION: Law Society of NSW v Doherty [2010] NSWCA 173 HEARING DATE(S): 14 July 2010 JUDGMENT DATE: 27 July 2010 JUDGMENT OF: Tobias JA at 1 DECISION: Justice Tobias declines to recuse himself from the further hearing of the appeal. CATCHWORDS: PROCEDURE – Judges – Disqualification for apprehended prejudgment – 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 issues on the appeal – Application for judge to disqualify self refused LEGISLATION CITED: Civil Procedure Act 2005 Legal Profession Act 2004 CATEGORY: Procedural and other rulings Ebner v Official Trustee [2000] HCA 63; (2001) 205 CLR 337 Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310 Livesey v New South Wales Bar Association (1983) 151 CLR 288 CASES CITED: Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 The Council of the Law Society of New South Wales v Doherty [2009] NSWADT 155 The Council of the Law Society of New South Wales v Doherty (No 2) [2009] NSWADT 296 The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 Vakauta v Kelly (1989) 167 CLR 568 PARTIES: The Council of the Law Society of New South Wales Peter John Doherty FILE NUMBER(S): CA 2009/324937 COUNSEL: A: G Lindsay SC / S Barnes R: J Ireland QC / D Mihalic SOLICITORS: A: R J Collins, Sydney R: P J Doherty IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2009/324937 TOBIAS JA 27 July 2010 THE COUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES v PETER JOHN DOHERTY Judgment on Application to Recuse 1 TOBIAS JA: The appeal of the Council of the Law Society of New South Wales (the Law Society) in this matter came on for hearing before Campbell JA, Young JA and myself on 14 July 2010. 2 In essence the Law Society's contention on its appeal was that having found the respondent guilty of professional misconduct and, in particular, of breaching s 255 of the Legal Profession Act 2004 involving his misappropriation of $35,000 belonging to a Mr Rafter, the Administrative Decisions Tribunal (the Tribunal) ought to have ordered the respondent's name to be removed from the Local Roll of Lawyers. 3 The Tribunal published two judgments. The first was on 23 June 2009: The Council of the Law Society of New South Wales v Doherty [2009] NSWADT 155 (the first judgment). The second was published on 30 November 2009: The Council of the Law Society of New South Wales v Doherty (No 2) [2009] NSWADT 296 (the second judgment). The Law Society's appeal related only to the latter. 4 Prior to the commencement of the hearing, I carefully read and absorbed both of the Tribunal's judgments and, in particular, the second which was the subject of the Law Society's appeal. Further, I had the benefit of reading the written submissions of both parties in the Orange Book. 5 The Law Society's written submissions in chief relevantly included the following contentions: (a) The Tribunal rejected the claim by the respondent that he had Mr Rafter's authority to use the relevant funds in the way he did (paragraph 49); (b) The Tribunal failed in its decision on dispositive orders [the second judgment] to have due regard to the lack of any reasonable foundation for the respondent's assertion of a belief that he was entitled to deal with Mr Rafter's moneys as he did (paragraph 53); (c) The respondent had no insight into his misconduct and did not appreciate his duties as a solicitor (paragraph 54). 6 In its written submissions in reply to those of the respondent, the Law Society contended, relevantly, that: (a) the fact that the respondent had himself filed a Notice of Cross-Appeal in which, so it was submitted (at paragraph 4) he disputed that he had been guilty of any misconduct in relation to the central complaint about Mr Rafter and which he later abandoned, further demonstrated an absence of any real insight by the respondent into the nature and quality of the conduct that gave rise to the disciplinary proceedings against him (paragraph 5); (b) the respondent's written submissions reflected a continuing failure to recognise the significance of the Tribunal's finding of professional misconduct (paragraph 18(c)); (c) having in its first judgment stated that the respondent's belief that he was entitled to use Mr Rafter's money " … was a belief not founded on the contract, or on reality … ", the Tribunal's second judgment was inconsistent with its first judgment because as there was no basis " in reality " for holding the belief, then a rational person could not genuinely hold it (paragraph 26); (d) the fact that the Tribunal in its first judgment preferred Mr Rafter's evidence to that of the respondent necessarily involved rejecting the respondent's evidence of his conversations with Mr Rafter where the former claimed to have obtained the latter's instructions to use the money (paragraph 29). 7 In the course of its second judgment, the Tribunal set out extracts from the respondent's evidence contained in an affidavit sworn 11 September 2009. I refer in particular to paragraphs 18, 19 and 45 of that affidavit extracted at [66] and [67] of the Tribunal's second judgment. I further refer to the oral evidence given by the respondent and referred to by the Tribunal at [69] to [71] of that judgment. 8 A short time after senior counsel for the Law Society opened the appeal, I intervened as follows: "Mr Lindsay, let me cut to the chase and indicate where my problems lie, speaking for myself, in relation to the second judgment and these are matters which I'll ask Mr Ireland [senior counsel for the respondent] to address in due course. …" 9 Apart from some comments with respect to the legal propositions referred to by the Tribunal at [46], [49] and [59] of the second judgment, I then referred counsel to what I said was "a matter of some concern at least to me" being the Tribunal's recitation of the respondent's evidence in the passages to which I have referred at [7] above. In particular, I referred to the respondent's evidence extracted by the Tribunal at [69], [70] and [71] of the second judgment observing, at that point, that "notwithstanding the tribunal's decision, he [the respondent] seems to be maintaining his position which was rejected by the tribunal. I may be wrong but that's not what [sic, how] it appears to me". (Emphasis added) 10 I then referred to the Tribunal's extract from the respondent's evidence at [71] and observed that that did not sound like someone who had much of an insight into what he had done. 11 Relevantly, I then referred to the last sentence at [99] of the second judgment observing that what was said there was not inconsistent with its finding because it had put the relevant question aside, namely, that at all times the respondent held a genuine belief. I then observed that the Tribunal had later made such a finding. The problem with that, I observed, was that the Tribunal did not make a finding that the respondent had a genuine belief based on reasonable grounds. 12 I then observed that there were two problems with that finding. The first was that the Tribunal in the first judgment had found that the respondent's understanding that he had Mr Rafter's consent "didn't accord with reality", meaning thereby that it was not based on reasonable grounds. I observed: "… I would have thought, that in effect he's attempting to giving himself an excuse and I think there's another reference to that somewhere. And then there's also a finding … where [the Tribunal] said that when it came to believe Mr Doherty they believed Mr Rafter." 13 I was then referred by senior counsel for the Law Society to [115] of the first judgment where the Tribunal had said that it was clearly of the view that it preferred the evidence of Mr Rafter to the evidence of the respondent. I then observed: "… what Mr Doherty seems to be saying is I had oral instructions but the mistake I made was not getting written instructions. So at all times he's maintaining and continues to maintain that he had oral consent to use the money in the manner in which he did which is contrary to the decision of the tribunal. …" 14 I concluded my observations with the following remarks: "It just seems to me, although to some extent I think you [Mr Lindsay] do rely on this, that this practitioner simply, really doesn't accept the tribunal's decision or at least he's got no insight into the fact that they have said, 'You had no consent to do this, even if you believed you did you had no proper basis, no foundation, no factual basis upon which to hold that belief'. Now if that's correct and I'm not saying it is but these are the things that sort of struck me when I was reading this material, where does that leave the tribunal's decision?" (Emphasis added) 15 Senior counsel for the Law Society then submitted that I had summarised briefly the various submissions he was proposing to make, to which I responded: "It just seems to me Mr Doherty's trying to have two bob each way, to coin a phrase, that he doesn't really accept, at least on the evidence he gave before the tribunal, that they had really rejected his testimony. Mind you there are a number of inconsistencies in the tribunal's findings which hasn't helped." 16 At the conclusion of the Law Society's submissions, senior counsel for the respondent sought a short adjournment and upon the Court's return he made a submission that I disqualify myself from further involvement in the appeal. He said: "The matter in which the Law Society presented this case was articulated in its written submissions found in the orange book. Very close to the outset of the hearing of the appeal, your Honour … adopted an approach contrary to the respondent's case, which was not borne out of any submission that has been made by the society. That was developed over a number of minutes in a number of ways. The essence of your Honour's conclusions not tentatively expressed, was that one was dealing in this case with someone who simply would not face up to the findings that the Tribunal had made against him. Your Honour as I say, your Honour's disposition to that view in my respectful submission, shows an element of pre-judgment of this case, because it's not something that's the child of any submission the Law Society has made …." (Emphasis added) I declined to recuse myself and indicated that I would give my reasons in due course. 17 The relevant principles in a case such as the present are well established in a number of judgments of the High Court including, relevantly, Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294. The principle there set out 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: see also Ebner v Official Trustee [2000] HCA 63; (2001) 205 CLR 337 at [33]. 18 Of particular relevance to the present matter is the following statement of all seven members then constituting the High Court in Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553-544: "Those requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it ." (Emphasis added) 19 That statement was reiterated by Barwick CJ, Gibbs, Stephen and Mason JJ in The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 262. It was also referred to by the Full Court of the Federal Court (Lockhart, Pincus and Gummow JJ) in Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310 at 318. In that case their Honours also referred to the reasons of Brennon, Deane and Gaudron JJ in Vakauta v Kelly (1989) 167 CLR 568 to the effect that the holding and expression of preconceived views do not necessarily mandate disqualification. Their Honours said (at 571): "Nor will that requirement of the reality and appearance of impartial justice be infringed if a judge with preconceived views about the general reliability of the evidence of a particular medical witness discloses the existence of such views in the course of the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case." 20 In the present case I was attempting in the observations to which exception was taken, to indicate to both senior counsel the areas of the Tribunal's second judgment in which, having read it and the written submissions of the parties, I thought that there might be problems and indicating those parts recording the respondent's evidence that caused me some concern as to whether, in truth, the respondent had an insight as to the nature of the professional misconduct of which he had been found guilty by the Tribunal in the first decision. 21 As I emphasised in the passage from my remarks referred to at [9] above, I indicated what appeared to me to be the case but acknowledged that I might be wrong. I also draw attention to my penultimate remarks, which I have set out at [14] above and in particular the part which I have emphasised. 22 I would reject the respondent's submission that the matters to which I drew senior counsel's attention were not ones that formed part of the Law Society's written case on the appeal. I have already referred to some of those submissions including the contention that the respondent did not exhibit appropriate insight into the nature of his wrongdoing. 23 The purpose of the relevant Rules of Court requiring the parties to file written submissions is to enable members of the Court hearing the appeal to not only read the judgment or judgments under appeal prior to its commencement, but also to read them in the context of the parties' written submissions with respect to the issues they raise and which are to be advanced on the appeal. 24 The effect of this process is to facilitate the overriding purpose of the Civil Procedure Act 2005 encapsulated in s 56(1) thereof which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. That provision applies to appeals as much as it does to hearings at first instance: see also s 61(1). 25 I therefore regarded it as perfectly appropriate to semaphore to both senior counsel those aspects of the Tribunal's second decision that caused me concern so as to give each the opportunity to respond to them. I made it clear in my remarks on two occasions that I might be wrong in my understanding or interpretation of the evidence that the respondent had given before the Tribunal and upon which it had relied. That to me did not indicate that I had a closed mind to the issues which I had attempted to bring to counsels' attention for their consideration or that I might not otherwise retain an open and impartial mind to the ultimate resolution of the issues in the appeal. Contrary to the respondent's submissions, I do not believe that my remarks were expressed other than tentatively. 26 However, the relevant test is not one that involves any judgment of mine as to whether I would or would not bring an impartial mind to the resolution of the issues on the appeal. Rather, it is whether a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to that resolution. 27 Such an observer, in my view, would be taken to have some knowledge and understanding of the way the Court of Appeal works and, in particular, of the fact that the members constituting the relevant Bench would have read and absorbed not only the judgment under appeal but also the written submissions of the parties with respect to it. That lay observer would also appreciate that in carrying out that exercise, the relevant judge or judges may well have formed tentative and, sometimes, not so tentative but never final, views as to the correctness or otherwise of the judgment under appeal and/or of the submissions made by the parties seeking to uphold or challenge it. 28 The lay observer of an appellate court's processes would also appreciate the purpose of the Socratic dialogue between Bench and Bar which is so essential to exposing the real issues for determination and therefore enabling the parties to deal with those particular aspects of the judgment under appeal and/or the written submissions which might be troubling one or more of the judges comprising that court. That is what happened in the present case. 29 In the foregoing circumstances, I do not consider that the fair-minded lay observer might reasonably have apprehended that I might not bring an impartial mind to the resolution of the issues on the present appeal. It is for the foregoing reasons that I declined to recuse myself from the further hearing of the appeal. ********** 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.