Hawken v Scott [2008] ACTSC 133 (5 December 2008)

Last Updated: 23 December 2008

Hawken v Scott [2008] ACTSC 133 (5 December 2008)

No. SC 448 of 2004

Judge: Justice Cowdroy

Supreme Court of the ACT

Date: 5 December 2008

IN THE SUPREME COURT OF THE ) No. SC 448 of 2004

)

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ANNETTE MAREE HAWKEN

Plaintiff

AND: DR PETER SCOTT

Defendant

ORDER

Judge: Justice Cowdroy

Date: 5 December 2008

Place: Sydney

THE COURT ORDERS THAT:

1. The applicant’s application be dismissed.

2. The proceeding be set down for hearing before an additional judge of this Court.

3. The cost of this application be costs in the proceeding.

IN THE SUPREME COURT OF THE ) No. SC 448 of 2004

)

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ANNETTE MAREE HAWKEN

Plaintiff

AND: DR PETER SCOTT

Defendant

Judge: Cowdroy J

Date: 5 December 2008

Place: Sydney

REASONS FOR JUDGMENT

1. The defendant (‘the applicant’) seeks an order pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) (‘the Act’) that this proceeding be transferred from the Supreme Court of the Australian Capital Territory (‘the ACT Supreme Court’) to the Supreme Court of New South Wales (‘the NSW Supreme Court’).

2. Section 5 of the Act relevantly provides:

(2) If –

(a) a proceeding (in this subsection called the relevant proceeding) is pending in the Supreme Court (in this subsection called the first court ); and

(b) it appears to the first court that –

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory;

the first court shall transfer the relevant proceeding to that other Supreme Court.

FACTS

3. The plaintiff commenced this proceeding on 30 June 2004. The statement of claim alleges professional negligence by the applicant, a medical practitioner. The hearing of the matter was initially set down for April 2007 but was adjourned on the plaintiff’s application. The proceeding was again set down for hearing to commence on 25 August 2008. However, shortly before the hearing day, Master Harper, before whom the proceeding was listed, ascertained that the plaintiff was the personal assistant to the Honourable Justice Refshauge, a judge of this Court. On 25 August 2008 the Master adjourned the proceeding and expressed the opinion that it would not be appropriate for either himself or any other resident judge of the Court to hear the matter. Master Harper referred to the fact that there were judges of the Federal Court of Australia who were also additional judges of the ACT Supreme Court and intimated that it would be more appropriate if such a judge heard this proceeding.

4. The applicant subsequently applied under the Act to have the proceeding cross-vested to the NSW Supreme Court. The plaintiff opposes the application.

5. The applicant submits that the hearing of the proceeding before a resident judge gives rise to an apprehension of bias, in consequence of the fact that the plaintiff works in the same building as the resident judges of the Court and accordingly would be known to them.

6. The applicant further submits that the listing of the matter before an additional judge of the Court is ‘still likely to be problematic’ as it is likely that such a judge would be required to share a working environment with the plaintiff during the course of the hearing.

7. The applicant does not suggest that there is any basis for a claim of actual bias.

8. The applicant relies upon the decision of the High Court of Australia in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 which referred to the two stage process required for the application of the apprehension of bias principle. At 345 Gleeson CJ, McHugh, Gummow and Hayne JJ observed that the first stage involved the identification of the grounds upon which a judge may be led to decide a case other than on its legal and factual merits. The second stage was described at 345 as ‘an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits’.

9. Based upon the facts giving rise to the association between the plaintiff and a judge of this Court, the applicant submits that the proceeding should be transferred to the NSW Supreme Court under s 5(2)(b)(iii) of the Act.

10. As a second basis for its application for a transfer of the proceeding, the applicant relies upon the fact that the majority of the expert witnesses for both parties are based in Sydney. The applicant also claims that the hearing time in the NSW Supreme Court is likely to be less than that of this Court because the NSW Supreme Court in its Common Law Division has a Professional Negligence List which would facilitate a timely resolution of the dispute.

11. The applicant also refers to the application of Practice Note SC CL7 in the NSW Supreme Court. Such Practice Note provides, inter alia, for expert evidence to be heard concurrently. The applicant submits that the application of such Practice Note would result in a significant saving of costs and lessen the time for hearing.

12. The applicant further submits that the engagement of an additional judge of this Court to preside over a trial which may have duration of approximately three weeks could, as a practical matter, pose difficulties in the listing arrangements of the Court as ‘[p]ast experience suggests that visiting Federal Court judges are not usually available for such a period of time’.

FINDINGS

13. The fundamental principle underlying the test for apprehended bias is the maintenance of public confidence in the administration of justice: see R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259 per Lord Hewart CJ; Metropolitan Properties Co. (F.G.C.) Ltd. v Lannon and Others [1968] EWCA Civ 5; [1969] 1 QB 577 at 599 per Lord Denning MR; Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 47, 51 per Mason CJ and McHugh J.

14. It is well established that the proper test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend or suspect that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide: see R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Webb at 47 per Mason CJ and McHugh J; Ebner at 344 per Gleeson CJ, McHugh, Gummow and Hayne JJ; Re Refugee Review Tribunal and Another; Ex parte H and Another [2001] HCA 28; (2001) 179 ALR 425 at 434 per Gleeson CJ, Gaudron and Gummow JJ; Smits and Another v Roach and Others [2006] HCA 36; (2006) 227 CLR 423 at 456-457 per Kirby J.

15. The emphasis on the ‘fair-minded observer’ in the above authorities indicates that ‘it is the court’s view of the public’s view, not the court’s own view, which is determinative’: see Webb at 52 per Mason CJ and McHugh J.

16. A reasonable apprehension of bias may exist where a judge has a personal or professional acquaintance with a party to the proceeding: see Aussie Airlines Pty Limited v Australian Airlines Pty Ltd and Another [1996] FCA 1308; (1996) 65 FCR 215 at 231 per Merkel J.

17. Master Harper excused himself of hearing the matter on 25 August 2008. His Honour’s findings in respect of his association with the plaintiff and the apprehension of bias which such association could engender indicate that it would unsuitable for any of the resident judges of the ACT Supreme Court to hear this proceeding.

18. However, such a relationship presumably would not exist if an additional judge of the ACT Supreme Court were to hear the proceeding. As additional judges visit the Supreme Court building infrequently, it is unlikely that such judges would be familiar with the plaintiff. The Court considers that the present concern giving rise to the apprehension of bias would be avoided if an additional judge were to hear the matter.

19. The Court observes that an additional judge would be required to occupy the same building as the plaintiff during the hearing of the trial. However, the Court does not consider that such proximity, in the absence of any specific association of such additional judge with the plaintiff, would lead a fair-minded lay observer to apprehend bias on the part of the additional judge.

20. While it is impossible to anticipate whether an additional judge would be acquainted with the plaintiff, the Court observes that if the applicant believed that some association existed between the plaintiff and the additional judge allocated to hear this proceeding which gave rise to the perception of bias, or that some other factor led to such a perception, then a further application could be made on that ground.

21. The Court has also considered the applicant’s argument that this proceeding should be transferred to the NSW Supreme Court because most of the medical experts for both parties are located in Sydney.

22. The plaintiff submits that the evidence of the medical experts located outside Canberra could be taken either by telephone or alternatively the Court could sit in Sydney to take such evidence. Section 18 of the Supreme Court Act 1933 (ACT) empowers the Court to sit in Canberra and in any other place in Australia as determined by the Chief Justice.

23. The Court observes that four of the plaintiff’s treating medical practitioners are located in Canberra. Another, who was practising in Canberra but has now moved to Sydney, still visits Canberra on a regular basis.

24. The Court is satisfied that the convenience of the medical experts is not a sufficient reason to warrant the making of an order for the transfer of the proceeding to the NSW Supreme Court.

25. The Court observes that whilst the NSW Supreme Court has procedures directed to the efficient disposition of proceedings in its Professional Negligence List, all of the procedures necessary to prepare the present proceeding for trial in this Court have already been undertaken. Accordingly no apparent advantage could be gained by the use of such procedures.

26. The Court observes that although the NSW Supreme Court can make orders for the provision of concurrent evidence by medical experts, such a procedure is also available to this Court under rule 1211 of the Court Procedures Rules 2006 (ACT). The Court finds that no particular advantage would arise from such procedure being conducted in the NSW Supreme Court rather than in this Court.

27. As to the applicant’s submission that the allocation of an additional judge to hear the proceeding would pose listing difficulties, the Court considers that any such anticipated difficulty is for the Court to resolve and is not relevant to the determination of the cross-vesting application.

28. The Court takes into consideration the facts that the plaintiff resides in Canberra, works in Canberra and that the events giving rise to her claim occurred in Canberra. The Court also takes into consideration the fact that the proceeding is ready for trial in this Court but if transferred a hearing date may not be available for an unspecified period.

29. For these reasons the Court concludes that it is not in the interests of justice that the proceeding be determined by the NSW Supreme Court. The Court accordingly dismisses the applicant’s cross-vesting application. However, the Court considers it appropriate that the hearing of this proceeding take place before an additional judge of this Court.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 5 December 2008

Counsel for the Applicant: Mr Walsh

Solicitors for the Applicant: Deacons

Counsel for the Respondent: Mr Bradfield

Solicitors for the Respondent: Ken Cush & Associates

Date of hearing: 6 November 2008

Date of judgment: 5 December 2008