Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Morrison v Chevalley [2012] NSWIRComm 11 Hearing dates: 17/02/2012 Decision date: 22 February 2012 Before: Backman J Decision: (1) The Notice of Motion filed on 8 February 2012 by Mr Chevalley is dismissed. (2) The application made orally to vacate the hearing dates in both matters set down to commence on 5 March 2012 is refused. (3) Costs are reserved. Catchwords: NOTICE OF MOTION - application that the Court recuse itself from hearing summary defended hearings under the Occupational Health and Safety Act 2000 (the Act) - defendants face charges under s 8(1) and s 26(1) of the Act as directors of Hunter Quarries Pty Limited - recusal application based on a reasonable apprehension of bias on ground of prejudgment - basis of application concerns findings on disputed facts made by the Court in other proceedings where those same disputed facts will be relied upon by the prosecutor in these proceedings - relevant principles considered - held: recusal application refused and Notice of Motion dismissed - application made orally to vacate hearing dates also refused - costs reserved Legislation Cited: Occupational Health and Safety Act 2000 Cases Cited: Australian National Industries Ltd v Spedley Securities Ltd (In Liq) and Others (1992) 26 NSWLR 411 British American Tobacco Australia Services Limited v Laurie and Others (2011) 242 CLR 283; [2011] HCA 2 British American Tobacco Australia Services Ltd v Laurie & Ors [2009] NSWCA 414 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Livesey v The New South Wales Bar Association (1983) 151 CLR 288 Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39 Re Polites and Another; Ex parte The Hoyts Corporation Pty Limited and Others (1991) 173 CLR 78; [1991] HCA 31; (1991) 38 IR 114 Rodney Morrison v Hunter Quarries Pty Limited and Another [2009] NSWIRComm 179 Category: Interlocutory applications Parties: Inspector Rodney Morrison (Prosecutor) Graham Antony Chevalley (Defendant) Hilton Ross Grugeon (Defendant) Representation: Mr R Burbidge, QC with Mr I Taylor of counsel (Prosecutor) Mr M Thangaraj, SC with Mr D Mahendra of counsel (Defendant - Chevalley) Mr A Moses, SC with Mr D Nagle of counsel (Defendant - Grugeon) I V Knight, Crown Solicitor for NSW (Prosecutor) McDonald Johnson Lawyers (Defendant - Chevalley) Greg Murray Solicitors (Defendant - Grugeon) File Number(s): IRC 956 of 2007 IRC 957 of 2007 Judgment 1In these proceedings, the defendant, Graham Antony Chevalley, moves by way of a Notice of Motion filed on 8 February 2012 that the Court should recuse itself from further hearing his matter. The second defendant, Hilton Ross Grugeon, joined in the application. Both defendants face charges under s 26(1) by virtue of s 8(1) of the Occupational Health and Safety Act 2000 (the Act) on the ground that they were, at the time of the alleged offences, directors of a corporate defendant, Hunter Quarries Pty Limited. The present proceedings are currently part-heard and have been set down for further hearing to commence on 5 March 2012. The charge against the corporate defendant was initially heard at the same time as the charges against Mr Chevalley and Mr Grugeon (the directors). Following two days of hearing, the corporate defendant pleaded guilty. At the same time another defendant, Richard Alexander Badior, the quarry manager, entered a plea of guilty. The sentences proceeded over a period of 11 days during which a number of facts disputed by the defendants were ultimately determined against them. Judgment was delivered in those matters on 9 October 2009: Rodney Morrison v Hunter Quarries Pty Limited and Another [2009] NSWIRComm 179. 2In addition to the recusal application, both directors made a joint application, orally with the Court's leave, that the hearing dates should be vacated. Two matters were relied upon in support of the application. First, that issues with regard to documents to be relied upon and the calling of witnesses, including expert witnesses, by the prosecutor, remain unresolved following an earlier ruling by the Court on 6 February 2012 (that the directors did not require the leave of the Court to withdraw agreements made with the prosecutor to be bound by the factual findings made by the Court in the Hunter Quarries judgment). Secondly, that the solicitor for Mr Grugeon is "gravely ill" and will not be in a position to prepare for the hearing or appear to instruct counsel at any time during the course of the hearing. 3Senior counsel for Mr Chevalley also revived an application made unsuccessfully to vacate the hearing dates in the present matter on the ground that he has been briefed to appear in an appeal to the High Court set down to be heard on 29 February and 1 March 2012. According to senior counsel, because of the proximity of the hearing dates in both courts he does not have adequate time to prepare for the hearing in these proceedings. The application is refused for reasons which may be shortly stated. The present proceedings were set down for hearing before the dates for hearing were allocated in the High Court matter. When the application was first made this Court attempted to accommodate senior counsel's availability by vacating the first week of hearing of the present proceedings which were originally set down to commence on Monday, 27 February 2012. Senior counsel for Mr Chevalley did not identify any change in circumstances from the time the application was first made. The proceedings have had a long history. This is the third time both matters have been set down for hearing. 4The grounds and reasons set out in the motion rely on the following matters: Certain findings of fact were made the Court as presently constituted in the Hunter Quarries Proceedings, and it was held that the corporate defendant had contravened s 8(1) of the Occupational Health and Safety Act 2000 (NSW) and should be convicted and fined as a consequence as that contravention. The legal representatives of the Defendant were not present in Court when the Court heard the evidence and submissions from the parties involved in the Hunter Quarries Proceedings. The current proceedings (together with the Grugeon Proceedings) will require a fresh consideration of the evidence, or at least part of the evidence, that was before this Court in the Hunter Quarries Proceedings, and of the question of whether the corporate defendant has contravened the Act. The Defendant has a reasonable apprehension that the Court as presently constituted may not depart from the findings of fact made in the Company Proceedings. 5The directors' applications were heard by the Court on 17 February 2012. During oral argument on the recusal application, the Court brought to the parties' attention the majority judgment in British American Tobacco Australia Services Limited v Laurie and Others (2011) 242 CLR 283; [2011] HCA 2 (British American Tobacco). The parties undertook to provide to the Court a short note in relation to the relevance of that judgment, if any, to their respective contentions. The directors filed a joint supplementary submission on 20 February 2012 addressing the relevance of the case, and the prosecutor filed a note on 21 February 2012. Given that the hearings are set to recommence on 5 March, I delivered my decision on 22 February 2012 dismissing all applications with reasons to be provided later. This judgment provides those reasons. 6Although not articulated precisely as such, I take the recusal application by the directors to rely on that particular circumstance which may give rise to a reasonable apprehension of bias, namely, where the presiding judge, having determined a number of facts adverse to another defendant in other proceedings, may not bring an impartial mind to the determination of the same facts in the present proceedings where those same facts are in dispute. This category of apprehension of bias has been referred to as the prejudgment principle. 7In Australian National Industries Ltd v Spedley Securities Ltd (In Liq) and Others (1992) 26 NSWLR 411, Mahoney JA (in the majority) explained the derivation and the application of the principle in the following way (at 437): As I have said, the pre-judgment principle derives essentially from the requirement that a judge, in deciding a dispute, be impartial. As here used, the term "impartiality" has various facets. The two vices to which, in the more recent cases, attention has been directed are bias and pre-judgment. A judge who is affected by either of these should not sit. I have, in referring to pre-judgment, referred to prejudgment in issues of fact or credibility. Conceptually, there may be pre-judgment in relation to issues of law: a judge may decide an issue of law in a particular way in a later case because he has decided it in that way in an earlier case. The question whether the pre-judgment principle applies to issues of law has not been argued in the present case. It may be necessary for this purpose to distinguish between issues of pure law and mixed issues of fact and law. But I do not think that it is necessary for the purposes of this case to pursue this question. I shall confine what I say to issues of fact and credibility of the kind here in question. In the present case, bias may be put aside. What is here in question is prejudgment. That involves that the judge must determine the case before him upon the basis of the material placed before him in the case and by his appreciation of that evidence, including the witnesses and the evidence they have given, in the instant case. One of the forms of pre-judgment - there are, of course, others - is determining a matter in a particular way because, in another case, the judge has decided the same or a similar matter in the same way. It is essentially that form of pre-judgment which is in question in this case. 8There is no suggestion of actual bias raised by the parties. The prosecutor opposes the directors' recusal application. 9The directors rely on the High Court's judgment in Livesey v The New South Wales Bar Association (1983) 151 CLR 288 for the rule that a judge is disqualified if a fair-minded observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is asked to decide: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344; [2000] HCA 63. 10In Livesey (at 293-294), the High Court applied the test formulated in Reg v Watson; ex parte Armstrong (1976) 136 CLR 248: [The] principle 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. That principle has subsequently been applied in this Court (see, e.g., Re Judge Leckie; Ex parte Felman (21); Reg. v. Shaw; Ex parte Shaw (22)) and in the Supreme Court of New South Wales (see, e.g., Barton v. Walker (23). Although statements of the principle commonly speak of "suspicion of bias", we prefer to avoid the use of that phrase because it sometimes conveys unintended nuances of meaning. In a case such as the present where there is no allegation of actual bias, the question whether a judge who is confident of his own ability to determine the case before him fairly and impartially on the evidence should refrain from sitting because of a suggestion that the views which he has expressed in his judgment in some previous case may result in an appearance of pre-judgment can be a difficult one involving matters "of degree and particular circumstances may strike different minds in different ways" (per Aickin J. in Shaw (24)). If a judge at first instance considers that there is any real possibility that his participation in a case might lead to a reasonable apprehension of pre-judgment or bias, he should, of course, refrain from sitting. On the other hand, it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court. Once it is accepted that a judge should not automatically stand aside whenever he is requested so to do, it is inevitable that appellate courts, removed from the pressure of a possible need for immediate decision and enjoying the advantages both of hindsight and, conceivably, further material and information, will on occasion conclude that a decision of a judge at first instance that he should sit was mistaken and has resulted in a situation where one of the parties or a fair-minded observer might entertain a reasonable apprehension of bias or prejudgment. 11The factual background in Livesey has been conveniently summarised by the prosecutor in written submissions as follows: The Livesey case arose from an application by the NSW Bar Association to strike Livesey off the roll of barristers for conduct which included his attendance at a gaol with Ms Wendy Bacon, then a law student, when Ms Bacon lodged $10,000 cash security to effect the release of a prisoner. Arising out of these events, Ms Bacon's attempts to be admitted as a barrister failed both before the Board and on appeal to the Court of Appeal. In those proceedings Moffat P and Reynolds JA expressed the view that Livesey (who was not before the court) had actively and knowingly participated in a corrupt scheme or conspiratorial arrangement to secure the release of the prisoner (his client) on bail by the use of the client's own money, a practice known as "straw bail". In the subsequent proceedings for strike off against Livesey, Livesey proposed to call Ms Bacon. The context in which the court delivered its judgment in Livesey is recorded in the judgment of the court at page 293: The argument advanced on behalf of the Appellant is that the views which their Honours had expressed in their respective judgments in the proceedings against Ms Bacon both as to the credibility and credit of Ms Bacon as a witness and on the circumstances surrounding the lodging by Ms Bacon of the $10,000 cash surety created a situation in which a party (ie the appellant) or a fair minded observer might reasonably doubt that the question involved in the proceedings against the appellant could be dealt with by their Honours without bias by reason of prejudgment. 12The issues in the Bacon case, which were whether the money lodged as bail by Ms Bacon was her own and whether Mr Livesey knew it was, were issues to be determined in Mr Livesey's case: Livesey at 300. In those circumstances, the High Court determined that Moffat P and Reynolds JA ought remove themselves from the hearing of the application to strike off Mr Livesey. In the course of determining, the High Court said the following (at 299 to 300): Necessity and the extraordinary case (see, e.g., Ex parte Lewin; Re Ward (30)) make it impossible to lay down an inflexible rule; each case must be determined by reference to its particular circumstances. It is, however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact. The consideration that the relevant question of fact may be conceded or that the relevant person may not be called as a witness if the particular judge sits would not, of course, avoid the appearance of bias. To the contrary, it would underline the need for the judge to refrain from sitting. 13The principles formulated in Livesey have been followed in a number of subsequent cases in the High Court including: Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39 at 351-352; Re Polites and Another; Ex parte The Hoyts Corporation Pty Limited and Others (1991) 173 CLR 78; [1991] HCA 31; (1991) 38 IR 114 at 85-87; Ebner at 344 [6]; and recently in British American Tobacco: see for example [104]. 14In Re JRL , Mason J, referring to the Livesey test, sounded a cautionary note (at 352): It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson (27) and Livesey (28) has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be ''fmnly established": Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (29); Watson (30); Re Lusink; Ex parte Shaw (31). Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. 15Mason J's note of caution was acknowledged by the High Court in Re Polites at 86. It was emphasised by French CJ (in the minority) in British American Tobacco at 290[1] where his Honour said: In 1986 Mason J said: It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. 16The requirement that the "reasonable apprehension" be held by the fair-minded (lay) observer was explained in Ebner in the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ at 344, [6]-[8]: [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. That principle gives effect to the requirement that justice should both be done and be seen to be done, 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. [8] The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. 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. 17In British American Tobacco , the appellant contended before the High Court that interlocutory findings adverse to it made by Curtis J in the Dust Diseases Tribunal of New South Wales (the Tribunal) should result in the disqualification of his Honour in the trial of subsequent proceedings (the Laurie proceedings) brought against the appellant by another party. Following the refusal of Curtis J to disqualify himself, British American Tobacco filed two summonses in the Court of Appeal, the first seeking leave to appeal from the refusal of Curtis J to recuse himself and the second seeking an order prohibiting Curtis J from further hearing or determining the proceedings. By majority (Tobias and Basten JA), the Court of Appeal dismissed both summonses: British American Tobacco Australia Services Ltd v Laurie & Ors [2009] NSWCA 414. 18The interlocutory findings against British American Tobacco were made by Curtis J in related proceedings (the Mowbray proceedings). In those proceedings, his Honour heard an application for discovery during which it was alleged that British American Tobacco had destroyed prejudicial documents in order to put them beyond the reach of litigants. Another allegation was that British American Tobacco had falsely advanced an innocent housekeeping explanation for their destruction so as to prevent adverse inferences being drawn from it: British American Tobacco at [112]. During the hearing of the interlocutory application before Curtis J, evidence was adduced from Frederick Gulson who had been Company Secretary and in-house solicitor to British American Tobacco in 1989-90: British American Tobacco at [11] per French CJ. That evidence included a transcript of evidence given by Mr Gulson in proceedings in the United States. Part of the transcript of that evidence was the subject of client legal privilege. Curtis J was required to determine whether the material which formed part of the transcript was admissible under s 125(1) of the Evidence Act 1995 (NSW) which permits evidence to be adduced of a communication that is the subject of legal client privilege if the communication is made, "in furtherance of the commission of a fraud": British American Tobacco at [115]. Proof of fraud under s 125(1) is facilitated by s 125(2) which provides, relevantly: "(2) For the purposes of this section, if the commission of the fraud ... is a fact in issue and there are reasonable grounds for finding that: (a) the fraud ... was committed, and (b) a communication was made ... in furtherance of the commission of the fraud ... the court may find that the communication was so made ..." 19In British American Tobacco , the majority (Heydon, Kiefel and Bell JJ) made the following observations with regard to the findings of Curtis J made in the Mowbray proceedings ([117]-[120]): [117] Judge Curtis did not state that his findings were made merely because there were reasonable grounds for finding fraud. He found fraud under s 125(1) independently of s 125(2). He approached the determination upon the footing that a finding of fraud under s 125(1) must involve an element of dishonesty. It is implicit that his findings were arrived upon by application of the principles stated by Dixon J in Briginshaw v Briginshaw . They were expressed as follows. First, "on the present state of the evidence ... BATAS in 1985 drafted or adopted the Document Retention Policy for the purpose of a fraud within the meaning of s 125 of the Evidence Act ." Secondly, "[i]n the absence of evidence to the contrary ... I find that the communications made for the purpose of obtaining [advice to the effect that destroying documents pursuant to the Policy was not contrary to law] were communications in furtherance of the commission of a fraud within the meaning of s 125." [118] Judge Curtis's findings were dependent upon the evidence of Mr Gulson, which he described as being vague and consisting of Mr Gulson's impressions, interpretations and conclusions as to what he was told. His Honour allowed cross-examination of Mr Gulson on the application. That cross-examination included cross-examination on matters relevant only to Mr Gulson's credibility. Mr Gulson acknowledged that he had taken control of a company by means of artificial or sham transactions in order to bring proceedings against a former director for breach of fiduciary duty and that he had made a claim against BATAS for wrongful dismissal which he had not pursued. BATAS submitted that Mr Gulson's evidence on these topics made it unsafe and unsatisfactory to accept his evidence. Judge Curtis rejected this submission. Notably, senior counsel for BATAS did not challenge Mr Gulson on the substance of his allegations. [119] Judge Curtis said that the sting in Mr Gulson's account was not simply that BATAS had destroyed prejudicial documents for the purpose of suppressing evidence in anticipated litigation, but that BATAS had dishonestly concealed this purpose by the pretence of a rational, non-selective housekeeping policy . This was the dishonesty which Judge Curtis identified as warranting the conclusion of fraud. [120] Judge Curtis was mindful that the application was interlocutory and of the limited challenge that BATAS had advanced to the acceptance of Mr Gulson's evidence. In these respects his Honour stated the following reservations : "I should make it plain that BATAS has at all times maintained that its document management policies and practices at no time permitted selective destruction of prejudicial documents. The assertion by Brambles to the contrary remains a live issue for the trial. ... Mr Gulson's evidence stands uncontradicted. He has not yet been tested by a contrary version of events ... There may be good reasons why BATAS has not yet joined issue with, and called evidence to contradict, Mr Gulson; however, I must determine the proceedings now before me on the evidence now before me." 20In the Laurie proceedings, the issue of whether British American Tobacco adopted and implemented a document retention/destruction policy for the purpose of destroying documents adverse to its interests under the guise of a non-selective policy was, "a live and significant one": British American Tobacco at [122]. 21The judgment of the majority in the High Court held that Curtis J should have disqualified himself from the Laurie proceedings. In order to properly illustrate this, it is necessary to extract the relevant paragraphs from the majority judgment (at [139]-[145]): [139] It is fundamental to the administration of justice that the judge be neutral. It is for this reason that the appearance of departure from neutrality is a ground of disqualification . Because the rule is concerned with the appearance of bias, and not the actuality, it is the perception of the hypothetical observer that provides the yardstick. It is the public's perception of neutrality with which the rule is concerned. In Livesey it was recognised that the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case. It is a recognition of human nature. [140] Of course judges are equipped by training, experience and their oath or affirmation to decide factual contests solely on the material that is in evidence. Trial judges are frequently required to make rulings excluding irrelevant and prejudicial material from evidence. Routine rulings of this nature are unlikely to disqualify the judge from further hearing the proceeding. This is not a case of that kind. It does not raise considerations of case management and the active role of the judge in the identification of issues with which Johnson was concerned. At issue is not the incautious remark or expression of a tentative opinion but the impression reasonably conveyed to the fair-minded lay observer who knows that Judge Curtis has found that BATAS engaged in fraud and who has read his Honour's reasons for that finding. Some further reference should be made to those reasons. [141] His Honour drew inferences adverse to BATAS from the appearance of the policy adopted in 1985, styled the "Amatil Ltd Policy on Document Retention/Destruction" (Amatil being BATAS's former name). Judge Curtis described this policy as "a model of brevity" . In context this was not an encomium. His Honour considered that it was remarkable that BATAS had replaced a long-standing detailed policy comprised of 45 pages, which prescribed mandatory retention and destruction periods for documents falling within each of 14 categories, with the 1985 policy. He noted that the 1985 policy, in two pages, reduced the categories of documents to three, of which the third, "valuable business documents ... in the sense that the business cannot do without it", was subject to the direction that these were to be retained only after the document had been "carefully reviewed to establish that it is truly valuable" . [142] Judge Curtis discussed Mr Gulson's evidence concerning an English firm of solicitors that had sent a team of three lawyers to Australia to ensure the implementation of the Document Retention Policy. This followed Mr Gulson's report that sensitive smoking and health documents were being held at BATAS's scientific library. Of this evidence, Judge Curtis said: "This is direct evidence, which has not been challenged or contradicted. In the absence of evidence from BATAS, I find it difficult to understand how it was thought necessary that three English lawyers attend a scientific library to implement a Document Retention Policy which only permitted destruction of documents which were not 'valuable business documents'. If BATAS was not selectively destroying scientific documents prejudicial to its position in future litigation, how is it that lawyers rather than scientists were assigned to judge the value of research material? This may be explained at the trial; however, the evidence of Mr Gulson gives rise to an obvious inference that has not yet been rebutted by BATAS." (emphasis added) [143] The force of the rhetorical question is not lessened by the concluding sentence. [144] The hypothetical observer is reasonable and understands that Judge Curtis is a professional judge. Nonetheless, the observer is not presumed to reject the possibility of pre-judgment . If it were otherwise an apprehension of bias would never arise in the case of a professional judge. [145] Whenever a judge is asked to try an issue which he or she has previously determined, whether in the same proceedings or in different proceedings, and whether between the same parties or different parties, the judge will be aware that different evidence may be led at the later trial. Judge Curtis's express acknowledgment of that circumstance does not remove the impression created by reading the judgment that the clear views there stated might influence his determination of the same issue in the Laurie proceedings. Allsop P's conclusion was correct. In addition to the possibility of the evidentiary position changing, a reasonable observer would note that the trial judge's finding of fraud was otherwise expressed without qualification or doubt, that it was based on actual persuasion of the correctness of that conclusion, that while the judge did not use violent language, he did express himself in terms indicating extreme scepticism about BATAS's denials and strong doubt about the possibility of different materials explaining the difficulties experienced by the judge, and that the nature of the fraud about which the judge had been persuaded was extremely serious. In the circumstances of this unusual case, a reasonable observer might possibly apprehend that at the trial the court might not move its mind from the position reached on one set of materials even if different materials were presented at the trial - that is, bring an impartial mind to the issues relating to the fraud finding. Johnson v Johnson is distinguishable. 22The critical passage is found in [145] of the majority judgment. At the beginning of the paragraph, the majority observed that a judge will be aware that different evidence may be lead at the later trial in the circumstance set out in the paragraph. The majority found that notwithstanding Curtis J's acknowledgement of that circumstance, an impression was created from reading his Honour's judgment in the Mowbray proceedings that the "clear views" there expressed "might" influence his determination of the same issues in the Laurie proceedings. Those "clear views" included his Honour's unqualified finding of fraud, as well as remarks indicating his "extreme scepticism" about British American Tobacco's denials and his "strong doubt" with regard to another matter. 23In the passage, the majority stated that, "Allsop P's contention was correct". Allsop P delivered the minority judgment in the Court of Appeal. In that judgment, Allsop P found that Curtis J had made an unqualified finding of dishonesty and fraud. In the relevant passages, Allsop P found: [10] ... His Honour was "persuaded"; this was an actual persuasion of the mind that the applicant was sufficiently morally delinquent to have its actions characterised as dishonest and fraudulent. This was more than the analytical counting or weighing of evidence. It was the personal persuasion of the trial judge of the correctness of the grave conclusion. The fact that this conclusion was reached "on the present state of the evidence" does not make the finding in any way provisional. It was relevantly unqualified. [11] A trial judge persuaded in his or her mind of the fraud and dishonesty of a litigant and who, properly discharging the curial task before him or her, announces to the parties and to the world his or her conclusion as to that grave fact does more than merely find a relevant fact. The grave quality of such a finding by a trial judge and the necessity for the trial judge to be persuaded in his or her mind as to its truth informs my view that a fair-minded lay observer might reasonably think that a judge, who has been so persuaded, might not be able to a bring a mind free of the effect of the prior conclusion, so solemnly reached, to bear in dealing with the same issue in respect of the same party on a later occasion. ... [13] The problem lies in the character and gravity of the finding and the actual persuasion of the mind of the trial judge of the moral delinquency of the party to a degree to warrant the expressed conclusion of fraud. In my view, a fair-minded lay observer might reasonably think that a trial judge might not be able to eradicate the effect of this conclusion from his or her mind in attempting to deal fairly and impartially with the issue on a later occasion. 24In the present proceedings, it was contended on behalf of Mr Chevalley that I had made "findings of credit" with respect to Mr Badior's evidence in that I "did not accept all his evidence" and I "rejected some evidence on oath". Submissions to similar effect were put by Mr Moses, senior counsel for Mr Grugeon. Mr Moses SC, relied specifically upon [217]-[221] of the Hunter Quarries judgment in which I dealt with disputed allegations concerning whether Hunter Quarries or Mr Badior knew that the person contracted to perform maintenance on the dump truck (Mr Taylor) was not maintaining the truck in accordance with the maintenance manual and whether they had failed to check what maintenance was being carried out. Mr Badior was asked during cross-examination whether he knew that Mr Taylor was only performing 250 hour services on the truck (and did not perform other services required in accordance with the maintenance manual such as 1000 and 2000 hour services). Mr Badior replied that he, "had an inkling". Immediately after referring to this concession, I said (at [219]): Mr Badior, in cross-examination, was asked whether he knew that Mr Taylor was only doing 250-hour services. Mr Badior replied that he, "had an inkling". The response does not sit comfortably with Mr Badior's affidavit evidence in which he said that every Monday morning he read the maintenance cards completed by Mr Taylor. ... 25Later, after considering the whole of the evidence on this issue I found (at [221]): It follows from Mr Badior's evidence that he must have been aware that maintenance of the truck was not being done in accordance with the maintenance manual and did not take steps to remedy that position. Mr Badior agreed during cross-examination that he was responsible for the service systems as they existed at the quarry. I find, therefore, beyond reasonable doubt, that the defendants knew that Mr Taylor was not doing maintenance in accordance with the truck maintenance guidelines and requirements, prior to the accident. 26A number of observations may be made about these findings. First, it is difficult to envisage how an issue as to Mr Badior's knowledge of Mr Taylor's adherence to the maintenance requirements can be an issue in the case against the directors. Secondly, the observation made by this Court that Mr Badior's concession did not "sit comfortably" with his affidavit evidence does not amount to a finding of credit adverse to Mr Badior. Rather, it indicates an acceptance of his evidence, namely, that he "had an inkling". Moreover, the observation is not expressed in language sufficiently firm so as to make the case fall on one side of the line. It is to be contrasted with the "clear views" expressed by Curtis J in the Mowbray proceedings which the majority of the High Court in British American Tobacco described as exhibiting "strong doubt", and "extreme scepticism": British American Tobacco at [145]. 27The findings made by this Court on the disputed facts involve little more than "analytical counting" and "weighing of evidence" (see Allsop P in Court of Appeal judgment at [10] [11]) such that it is not open to conclude, in my view, that the reasonable observer might possibly apprehend that in the proceedings against the directors this Court might not move its mind from the position reached on one set of materials even if different materials were presented in those proceedings: British American Tobacco at [145]. 28It was contended on behalf of the directors that because this Court has made findings on disputed facts involving the contravention of s 8(1) of the Act by the corporate defendant that the recusal application must be granted because the prosecutor in the proceedings against the directors must prove beyond reasonable doubt the very same contravention. In supplementary written submissions, a similar contention was advanced, namely, that because this Court has determined on a final basis in related proceedings facts which are necessary to establish a breach by the corporate defendant under s 8(1), this Court should grant the application. 29In my view, it is not correct to say that this Court has decided the question of the corporate defendant's contravention. Hunter Quarries pleaded guilty to the offence, thereby admitting the elements of the offence. In the course of those proceedings, the Court was called upon to determine a number of facts in dispute. Those (aggravated) facts were additional to the admitted facts constituting the particulars of the acts and omissions set out in the charge and were determined separately: see Hunter Quarries at [49]-[223]. As for the "agreed facts" set out in the Hunter Quarries judgment at [4]-[48], the paragraphs provide no more than a recitation and purported summary of those facts. 30I should add for completeness that no reliance has been placed on any exceptions to the apprehension of bias rule by the prosecutor such as waiver or necessity. 31In the circumstances outlined above, the orders sought by the directors in the motion filed on 8 February 2012 are refused and the motion is dismissed. Application to vacate the hearing dates 32It remains to consider the directors' joint application to vacate the hearing dates. The application is based upon two propositions. First, that the directors require more time to prepare because they have not been informed sufficiently of the prosecutor's case and, secondly, that they may be disadvantaged by the necessity of retaining a new solicitor. 33As to the first matter, the proceedings are part-heard. The directors have been informed of the nature of the case against them in the prosecutor's opening. They have been informed that the prosecution intends to call some 27 or 28 witnesses in its case. According to Mr Moses, senior counsel for Mr Grugeon, the proceedings will not conclude within the time allocated for the hearing. The original charges in both matters were filed on 5 June 2007. Amended charges were filed on 9 October 2008. This is the third time the matters have been set down for hearing. In the interim period, this Court and other courts have heard and determined a number of interlocutory applications made on behalf of the directors. In these circumstances, it cannot reasonably be contended that the directors and their legal representatives lack familiarity with the evidence which the prosecutor proposes to adduce or that time constraints would otherwise preclude them from properly preparing their cases for hearing. 34As to the second matter, the Court accepts the submission on behalf of the directors that the instructing solicitor for Mr Grugeon is unwell and unable to instruct counsel during the hearing. Nevertheless, both directors have retained the same counsel throughout the proceedings. The unavailability of Mr Grugeon's solicitor to provide instructions during the hearing without more is not an appropriate basis upon which an application to vacate the hearing may be granted. Accordingly, the application fails. 35The Court makes the following orders: (1) The Notice of Motion filed on 8 February 2012 by Mr Chevalley is dismissed. (2) The application made orally to vacate the hearing dates in both matters set down to commence on 5 March 2012 is refused. (3) Costs are reserved. * * * * * * * * * * 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. Decision last updated: 01 March 2012