Eastman v The Honourable Jeffrey Allan Miles [2006] ACTSC 57 (25 May 2006)

Last Updated: 12 February 2007

DAVID HAROLD EASTMAN v THE HONOURABLE JEFFREY ALLAN MILES [2006] ACTSC 57 (25 May 2006)

PRACTICE AND PROCEDURE - application for Judge to disqualify himself on grounds of actual and/or apprehended bias - no actual bias - no apprehended bias - application dismissed.

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

EX TEMPORE JUDGMENT

No. SC 853 of 2005

Judge: Lander J

Supreme Court of the ACT

Date: 25 May 2006

IN THE SUPREME COURT OF THE )

) No. SC 853 of 2005

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: DAVID HAROLD EASTMAN

Applicant

AND: THE HONOURABLE JEFFREY ALLAN MILES

Respondent

THE ATTORNEY GENERAL OF THE AUSTRALIAN CAPITAL TERRITORY

Intervenor

ORDER

Judge: Lander J

Date: 25 May 2006

Place: Canberra

THE COURT ORDERS THAT:

1. The oral application be dismissed.

1. 1. This is an application by the applicant that I disqualify myself on the grounds of actual bias or, in the alternative, apprehended bias. The test for disqualification for apprehended bias is well known. In Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 498, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ formulated the test for apprehended bias:

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 (which, in the present case, was said to take the form of pre-judgment) 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.

2. That statement of principle was repeated in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337. At [6], Gleeson CJ, McHugh, Gummow and Hayne JJ said:

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.

3. In this application, Mr Eastman has relied on, as I have said, both grounds, actual bias and apprehended bias. Of course, if he can make out apprehended bias then that would be enough. That test is significantly less difficult to satisfy than establishing to the satisfaction of the judicial officer that the judicial officer is actually biased. I will therefore test the contentions and submissions which he has made against the lesser test which he has to satisfy, that of apprehended bias, but of course in doing so I will not overlook the fact that he has relied upon the same submissions and contentions for establishing actual bias on my part.

4. This matter was first called on before me on 13 February 2006. Mr Eastman was represented by a barrister, Ms Walker, and the respondent was represented in the hearing by Mr Harris SC. Mr Harris said, when appearances were taken, "May it please the court, my name is Harris. I appear for the respondent". I said, "Yes, Mr Harris". Mr Harris continued to represent the respondent throughout the rest of that hearing.

5. Mr Eastman says that I had a discretion to refuse to allow Mr Harris to appear. He said that I should have exercised that discretion against Mr Harris and refused him a right to appear. He made that submission upon the basis that Mr Harris' client had entered a submitting appearance by a solicitor, Ms Circosta. Ms Circosta is also the Registrar of the court. Mr Eastman said Ms Circosta therefore had a clear conflict of interest in her capacity as Registrar of the court and as solicitor for the respondent. He said my failure to refuse Mr Harris' right to appear is indicative of both actual bias and apprehended bias.

6. During the hearing Ms Walker raised with me the fact that the respondent was represented by Ms Circosta. She said:

Your Honour, I appreciate that clarification of the role that would be anticipated. On that basis I think there could be no objection to Mr Harris' presence in the matter. Another issue does arise in relation to however to Ms Circosta instructing Mr Harris in his role in submitting to the jurisdiction. It may well be that her position is also if you like corrected by the fact that there's really no actual involvement by that party.

But there is a real concern on behalf of my client that Ms Circosta of course holds a role as Registrar in this court. And yet appears as a solicitor in the record in relation to a matter which although involving a former Chief Justice is not strictly speaking a matter of the courts and that again in our submission creates a situation of conflict, particularly so for a further reason if I might your Honour. Mr Eastman has had many dealings with Ms Circosta throughout a number of matters in which he has been involved before the court.

And it's appropriate to point out that there is one matter which still remains outstanding. Mr Eastman has personally, without the assistance of representation, made an application for a further Inquiry pursuant to section 424 of the Crimes Act which relates to forensic evidence which has come to his attention. That was referred - rather he made that application to the court and Ms Circosta in her capacity as registrar referred that to Higgins CJ. We understand from communications that that has been referred, contrary to objections by Mr Eastman to Gray J for attention. But nothing further has happened in that matter for several months.

Mr Eastman is in a position now where all he understands is that application is under consideration. That therefore means that Ms Circosta as the registrar has an active role to play in relation to dealing with that matter. That further in our submission complicates the situation in relation to her appearance as solicitor on the record in the matter.

HIS HONOUR: I understand what you've said and no doubt Mr Harris and Ms Circosta have both heard what you've said. If they will take that no doubt under consideration as to whether or not she should continue to appear on the record or whether or not there ought to be another solicitor who would appear on the record and you have heard who could instruct Mr Harris. I think it's clear that the acting judge is taking the position that he is not here to defend his report, his report will stand and fall by its own weight but I agree with you that there should be nothing on the record which would give any suggestion that there is any conflict on the part of any party. So having heard what you've said no doubt Mr Harris will give some advice in relation to that. That's so, Mr Harris?

MR HARRIS: Yes your Honour. It is a matter that has arisen in the past and was a matter that was given some consideration by Madgwick J when he was sitting as a judge at this court on 18 July 2003 in an earlier administrative application. But we can with respect obviously the issues in that matter would not be directly relevant here and the matter needs to be given review for further consideration.

HIS HONOUR: I can see - I can understand the difficulties where you obtained your instructions and the circumstance where the Attorney-General as one arm of the Executive wants to be separately represented. But I think the point that Ms Walker makes is good. There should be nothing on the face of the file which would suggest any conflict on the part of any party. But you can take that on consideration.

7. On the next occasion Mr Eastman was represented by Mr Peter Hanks QC. Mr Hanks again raised the question of Ms Circosta instructing Mr Harris whilst she was also a registrar of the court. Mr Harris responded to Mr Hanks' criticism and took me to a decision of Madgwick J which was the decision to which he had referred on the previous occasion. Madgwick J had in that decision upheld the right of Ms Circosta to act as solicitor on the record for a party to the proceeding which was again a challenge to an administrative decision.

8. After he had referred to Madgwick J's decision I said:

I agree with most of what Madgwick J said. Of course, you are submitting to any order that the court might make save as to costs. However, I've never seen before a Registrar appear on behalf of a party, even a submitting party, and I would like you to reconsider your position as to whether or not some other person ought to enter an appearance on behalf of the Acting Justice.

MR HARRIS: Yes, thank you, your Honour. Well, I certainly don't wish to argue, as it were, any proposition. I just thought it useful to draw what has happened in the past to your attention. And, with respect, I agree entirely with your Honour's observation about the usualness of the Registrar taking the role that she has here. Having said that - - -

HIS HONOUR: I don't want anyone, whoever it might be, to have any perception that there is any possibility of any conflict of interest by anyone in relation to these applications.

MR HARRIS: Yes, I understand that. I understand your Honour's thoughts on that. If it could stand over to the next occasion or the - - -

HIS HONOUR: It can.

MR HARRIS: Could it be dealt with by then?

HIS HONOUR: I will deal with that on the next occasion, Mr Harris. Thank you.

9. And there the matter rested. Shortly after that hearing on 13 April 2006 a Notice of Change of Legal Practitioner was filed in the court. It is in the following terms:

The Respondent, who previously employed Ms Jill Elizabeth Circosta, Registrar of the Supreme Court of the A.C.T., as his solicitor now employs Meyer Vandenberg Lawyers as his legal practitioner and their address for service is c/- Meyer Vandenberg, Lawyers, Level 2, 1 Farrell Place, Canberra City, ACT 2601.

10. It is Mr Eastman's complaint that I failed to refuse Mr Harris a right to appear on the first occasion, and I allowed Ms Circosta to remain a solicitor where she had a clear conflict of interest. In developing that argument he referred to a number of conflicts which he said that Ms Circosta had as Registrar in relation to her role as Registrar simplicitor and in relation to her role as solicitor for the respondent.

11. He also said that I should have said that she could not continue to discharge her duties as a Registrar. I have no right to say anything in relation to how she should conduct her duties as a Registrar. Indeed, I have no interest in that matter. My interest is ensuring that these proceedings are dealt with expeditiously, appropriately and fairly. I brought to Mr Harris' attention at the first available opportunity the fact that I thought it would be preferable if the Registrar did not act as solicitor for the respondent. I did so in response to the complaint made by Ms Walker and in further response to the complaint made by Mr Peter Hanks. The Registrar and the respondent have apparently reconsidered their position and she is no longer a party. There is nothing in that complaint.

12. The second and third matters that were raised were that I had said during argument on 26 and 27 April that because the issues raised were purely legal issues in action number 853/05 that there was no necessity for Mr Eastman to give instructions to his practitioners. On 26 April Mr Eastman was represented at a directions hearing by Mr Sharma. The directions hearing continued on until 27 April and during 27 April Mr Eastman withdrew Mr Sharma's instructions.

13. During Mr Eastman's submissions which were made following upon Mr Sharma's withdrawal, I tried to point out to Mr Eastman that the proceeding in action number 853/05 was an application under the Administrative Decisions (Judicial Review) Act 1989 (ACT) and the general law for orders in the nature of prerogative writs restraining the decision made by the respondent being acted upon or quashing the decision. I said during his address that they raised legal issues.

14. That is still in my opinion the case. The matters raised in action number 853/05 raise legal issues. That was adverted to Mr Peter Hanks when he appeared on behalf of the applicant. He said that the applicant would be filing an affidavit proving the necessary formal matters upon which the application could be determined. There is nothing in that complaint.

15. Next Mr Eastman says that the fact that I have set this matter down for trial on 10 July 2006 is evidence of bias. The matter first came before me on 13 February 2006 and at that stage I indicated that I could hear this matter on 25 May 2006. I appointed a date in March (22 March) so as to hear the parties on any interlocutory matters, so that I could be sure that he matter was ready to proceed on 25 May. In the event, as Mr Hanks explained at the time, the applicant could not be ready to proceed on 27 April, I therefore set the hearing of the matter for 10 July.

16. This, as I say, is an application which gives rise to legal issues and perhaps the construction of statutes. There is no reason why the matter cannot proceed as soon as the parties are ready. Nobody said on 27 April that they could not be ready on 10 July. Mr Eastman, of course, has said that he is having considerable difficulties in instructing his solicitors as a result of his incarceration at the Goulburn Jail, but he did not say at that stage that he could not be ready. There is nothing in the point that the matter is listed for trial.

17. Next Mr Eastman complained about a statement which I made, apparently on 26 or 27 April that some of the matters raised in the affidavit which were then supporting a Notice of Motion seeking orders against a non-party. In my opinion, there were a number of matters raised in that affidavit which were not relevant to that application and that is still my opinion. The fact that I hold that opinion is not a matter of demonstrating any bias, either actual or apprehended.

18. The next matter is again said to be a statement made by me in court. Mr Eastman said that I had said that matters contained in his affidavit about his mail being interfered with were not true. I did not say that. The transcript shows that I did not say that. There was an exchange between Mr Eastman and myself on 27 April 2006 which was in the following terms:

MR EASTMAN: Well, it is the circumstance. It is the circumstance. I am not allowed under present circumstances to write. I don't have any writing material. I don't have any envelopes, I don't have a biro in the cell. I don't have any paper. And under present circumstances I'm not permitted to write.

And you say that's not. Well, how can you since you haven't permitted evidence to be heard on that issue as nothing is formally before you on that. How can you unless you've had some ex-parte communication from someone or other, how can you know what is or isn't the factual situation at Goulburn Jail? Because you've refused to allow any evidence on that matter before.

HIS HONOUR: That's right, I have Mr Eastman.

MR EASTMAN: Yes, well then - - -

HIS HONOUR: I've refused it because there hasn't been yet a proper application brought.

MR EASTMAN: Well, then, in that case how can you say that that's not true?

HIS HONOUR: I haven't said it's not true.

MR EASTMAN: You just said it's not true that you're not allowed to write and receive letters from your lawyer.

HIS HONOUR: No, I said - you raised the question of the Attorney-General dealing with his solicitor. I said that's not the point of this case.

MR EASTMAN: It is the point of this case.

19. Mr Eastman's address continued. I did not say what Mr Eastman says I said today in relation to his evidence. I made no assessment of the evidence contained in the affidavit. It would have been quite inappropriate to assess that evidence because I ruled that the application was flawed for other reasons. All I did in relation to the evidence, which might be relevant, is to suppress it from publication.

20. Mr Eastman lastly said that my failure to accede to his application to have him transferred from Goulburn Jail to the Belconnen Remand Centre is evidence itself of bias. In the alternative, my failure to give interim or temporary relief is further evidence of bias, either actual or apprehended. I tried to explain in the reasons which I delivered on the last occasion why it was that Mr Eastman could not obtain the orders he sought at that time. I tried to explain in those reasons, and during argument, both when he was represented and whilst he was unrepresented, what needed to be done by Mr Eastman if he wished to ventilate the issues contained in the affidavit. In my opinion, I was right, for the reasons I gave. The reasons do not disclose any actual bias or any apprehended bias on my part.

21. None of the matters which Mr Eastman has relied upon for me to disqualify myself could, on any understanding to a fair-minded lay observer, indicate that I might not

bring an impartial mind to the hearing of these proceedings. The application is refused.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Lander.

Associate:

Date: 25 May 2006

Counsel for the applicant: The applicant appeared in person

Counsel for the respondent: Mr J Harris SC

Solicitor for the respondent: Meyer Vandenberg Lawyers

Counsel for the intervenor: Mr P Garrison

Solicitor for the intervenor: ACT Government Solicitor

Date of hearing: 25 May 2006

Date of judgment: 25 May 2006