New South Wales Supreme Court CITATION : Dixon v Cargill Meat Processors Pty Limited & Ors [2009] NSWSC 101 HEARING DATE(S) : 2 March 2009 JUDGMENT OF : Schmidt AJ EX TEMPORE JUDGMENT DATE : 2 March 2009 CATCHWORDS : Courts and Judges - disqualification - apprehension of bias - familial association - husband of Judge, partner in law firm acting for a defendant - no basis for disqualification - application dismissed Azar & Anor v Ritchie [2006] NSWIRComm 295 CASES CITED : Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Smits v Roach (2006) 227 CLR 423 Willoughby City Council v Transport Infrastructure Development Corporation [2008] NSWLEC 231 Stephen John Dixon - Plaintiff Cargill Meat Processors Pty Limited - First Defendant in 020245/08 PARTIES : Cargill Australia Limited t/as Cargill Beef Australia - Second Defendant in 02/0245/08 Ecowize South Pty Limited - Defendant in 020252/08 and Cross Defendant in 020245/08 Ecowize Specialised Hygiene Services Pty Ltd - Cross Defendant in 020245/08 FILE NUMBER(S) : SC 020245/08; 020252/08 Mr RV Letherbarrow SC with Mr DM Wilson - Plaintiff COUNSEL : Mr GM Watson SC - Defendants in 020245/08 Mr N Perry, counsel - Defendant in 020252/08 and Cross Defendant in 020245/08 Mr N Polin, counsel - Cross Defendant in 020245/08 Stacks - Plaintiff Henry Davis York - Defendants in 020245/08 SOLICITORS : Kemp & Co - Defendant in 020252/08 and Cross Defendant in 020245/08 Moray & Agnew - Cross Defendant in 020245/08 - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION SCHMIDT AJ Monday, 2 March 2009 020245/08 STEPHEN JOHN DIXON -V- CARGILL MEAT PROCESSORS PTY LIMITED AND ANOR 020252/08 STEPHEN JOHN DIXON -V- ECOWIZE SOUTH PTY LIMITED EX-TEMPORE JUDGMENT 1 HER HONOUR: These proceedings concern claims in negligence arising out of a work place accident, where the plaintiff, Mr Dixon, was injured while cleaning machinery at an abattoir. His services had been provided by his employer, to the owner of the abattoir. Amongst other things, there is a contest between the plaintiff and the defendants as to the circumstances of the accident, who had responsibility for what occurred, what injuries resulted and whether there had been contributory negligence on the part of the plaintiff. 2 At the outset of the hearing, in accordance with my normal practice, I alerted the parties to the fact that my husband is a partner in the firm Henry Davis York, the solicitor on the record for the first defendant, Cargill Meat Processors Pty Limited. 3 On taking instructions, Mr Letherbarrow SC informed me that the plaintiff had instructed that he make an application that I not hear the matter. The plaintiff, who it was explained was not sophisticated, nor well educated, and his wife, had a serious concern that the Judge hearing the claims would have such a close connection with a partner of the firm representing the first defendant. The proceedings were of significant importance to the plaintiff and he had a real unease as to the Judge allocated the matter to hear, having such a close personal connection to the first defendant's firm. It was submitted that the first defendant was no doubt an important client of that firm. The law did not require that I hear the case and accordingly, the matter should proceed before another Judge. 4 None of the other parties supported the application. It must be decided in accordance with the authorities which bind me. They are well settled. There is in this case no suggestion of actual bias, but a question as to the independence or impartiality of the Judge allocated the case to hear. 5 I have been greatly assisted in my consideration of this application by a decision given by his Honour Justice Staff in Azar & Anor v Ritchie [2006] NSWIRComm 295 and that given by his Honour Justice Lloyd in Willoughby City Council v Transport Infrastructure Development Corporation [2008] NSWLEC 231. Their Honours referred to the High Court's consideration of questions of apprehended bias in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, where it was observed that: 6 Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide ( R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v NSW Bar Association (1983) 151 CLR 288; Re JRL; Ex parte CJL (1986) 161 CLR 342; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41; Johnson v Johnson (2000) 201 CLR 488.). That principle gives effect to the requirement that justice should both be done and be seen to be done ( R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259, per Lord Hewart CJ.), a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. 7 The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror. 6 The High Court went on to say: 19 Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case. 20 This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable. 21 It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise. 22 The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal. 7 The question of apprehended bias in the context of familial connection, in that case with a party to the proceedings, was considered by the High Court in Smits v Roach (2006) 227 CLR 423. There McClellan J was hearing a case in which his Honour's brother was a member of a firm of solicitors which was a party to the proceedings. His Honour had refused to disqualify himself from hearing the matter. The High Court took the view that his Honour had been correct to refuse the disqualification application, after referring to what had been said in Ebner at [8]: 8. The apprehension of bias principle ... [in its] application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) 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 (or juror) 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. 8 The argument which had been advanced as to his Honour's disqualification was described as: 51 There is no suggestion that McClellan J had any personal interest, direct or indirect, in the case which he decided, or that he was in the position of being, either personally or through an alter ego [cf R v Bow Street Magistrate; Ex parte Pinochet (No 2) [1999] UKHL 1; [2000] 1 AC 119 at 134.], a party to the cause. The argument is based on association: a close family relationship with a person who, as a partner in Freehills, is said to have had a financial interest in the outcome of the litigation between Smits Leslie and the Roach interests. 9 That argument was not accepted, it being observed that: 52 It was pointed out in Ebner [2000] HCA 63; (2000) 205 CLR 337 at 349 [25], 356-358 [54]-[56]. that the concept of interest (like the concept of association) is protean, and that one of the difficulties with the bright line of automatic disqualification drawn by Dimes v Proprietors of the Grand Junction Canal (1852) 3 HLC 759 [10 ER 301]. is that, upon examination, it is not nearly as bright as is sometimes supposed. Many of the cases it covers would in any event obviously be covered by a more general principle. In many other cases, the certainty which is thought to be part of its attraction is illusory. The proposition that Freehills, as a firm, had a financial interest in the outcome of the dispute between the Roach interests and their former solicitors is at least doubtful. The proposition that Mr Geoff McClellan, as one of at least 80 partners, was in such a position that the outcome of the dispute could have more than a negligible effect on his personal finances is even more doubtful [Compare the extra-judicial remarks of Lord Bingham of Cornhill MR quoted in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 358 [56].]. If Freehills are ultimately successful in the Roach proceedings, then there is no reason to believe they will be affected in any way by the dispute with which McClellan J was concerned. If Freehills are ultimately unsuccessful, then they will almost certainly be ordered to pay the reasonable legal costs of the Roach interests. If the case is settled, the parties presumably will have negotiated on the basis of the assumptions just mentioned, so consideration of that possibility does not advance the argument. The Roach interests and Smits Leslie parted company at a time when, so far as appears from the evidence, the case against Freehills was still substantially unprepared. The disputes between Smits Leslie and the Roach interests were related to a special arrangement about fees, which would not concern Freehills. There was not shown, or found, to be any demonstrable relationship between the amounts of $500,000 or $675,000 and any amount that Freehills ultimately might be called upon to bear in respect of the legal costs attributable to the preparation of the Freehills litigation up until the time the Roach interests retained new solicitors. Furthermore, whatever that amount might be, (and nothing in the reasons of the Court of Appeal reflects any attempt to assess it), it would probably need to be divided by at least 80 to gauge its impact on Mr Geoff McClellan, leaving aside altogether considerations of insurance. 10 Here, similar difficulties confront the plaintiff's application that I not hear the matter. The proposition is that my husband's position as a partner of the firm representing the first defendant, is such that, because that company must be an important client of the firm, it is reasonable to infer that I have an interest in the outcome of the litigation, as the result of that personal connection, which ought to result in my not hearing the case. 11 I am unable to accept that there is a basis upon which that proposition may be accepted, in light of the approach which the High Court has adopted in the authorities which bind my consideration of this application. The connection here in question is undoubtedly more remote than a situation where a family member is a party to the proceedings over which the judicial officer is presiding. 12 In Azar, Staff J was dealing with an application where his brother-in-law was a partner in the respondent's firm. His Honour declined the application. In Willoughby City Council, the disqualification application concerned a familial connection which was that of a son, who was a partner in the firm of solicitors acting for the respondent. It, too, was declined. There Lloyd J observed: 13 I am reinforced in this view by the Guide to Judicial Conduct (Second Edition), published for the Council of Chief Justices of Australia by the Australasian Institute of Judicial Administration Inc, March 2007. Chapter 3 of the guide relates to bias and conflict of interest. Section 3.3.4 covers personal relationships and three categories of relationships are identified as follows: First degree - parent, child, sibling, spouse or domestic partner; Second degree - grandparent, grandchild, "in-laws" of the first degree, aunts, uncles, nephews, nieces; Third degree - cousins and beyond. 14 The guide then states: In addition to such relationships, friendship or past professional or other association with such persons needs to be considered in some situations. There are no hard and fast rules but the following guidance is offered. (a) A judge should not sit on a case in which the judge is in a relationship of the first, second or third degree to a party or the spouse or domestic partner of a party. (b) Where the judge is in a relationship of the first or second degree to counsel or the solicitor having the actual conduct of the case or the spouse or domestic partner of such counsel or solicitor most judges would and should disqualify themselves. Ordinarily there is no reason to do so if the matter is uncontested or is a relatively minor or procedural matter. Nor is there a need to do so merely because the person in question is a partner in, or employee of, a firm of solicitors or public authority acting for a party. In such cases, it is a matter of considering all the circumstances, including the nature and extent of the involvement in the matter of the person in question. Some judges may be aware of cases involving such a relationship when the judge has sat without objection, but current community expectations make such conduct undesirable. ... 15 The guide goes on to cite a number of justifiable exceptions. One of the stated justifiable exceptions is: Where the solicitor-relative is a partner or employee of the solicitor on the record, but has not been involved in the preparation or presentation of the case. 13 There is no suggestion that the present circumstances are anything other than circumstances falling within this exception. 14 For those reasons, the plaintiff's application must be refused. ********** 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.