Jodi-Anne Brooks v The Upjohn Co & Ors [1998] FCA 126 (25 February 1998)

Last Updated: 4 March 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	ng 211 of 1993

BETWEEN:	JODI-ANNE BROOKS Applicant
AND:	THE UPJOHN COMPANY First Respondent UPJOHN PTY LIMITED Second Respondent MARTIN RICHTER Third Respondent DONALD MAXWELL Fourth Respondent
JUDGE(S):	O'CONNOR J
DATE OF ORDER:	25 FEBRUARY 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The orders sought by the Fourth Respondent in their Notion of Motion filed on 24 February 1998 not be made.

2. The Fourth Respondent pay the costs of this motion.

NOTE: SETTLEMENT AND ENTRY OF ORDERS IS DEALT WITH IN ORDER 36 OF THE FEDERAL COURT RULES.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	ng 211 of 1993

BETWEEN:	JODI-ANNE BROOKS Applicant
AND:	THE UPJOHN COMPANY First Respondent UPJOHN PTY LIMITED Second Respondent MARTIN RICHTER Third Respondent DONALD MAXWELL Fourth Respondent

JUDGE(S):	O'CONNOR J
DATE:	25 FEBRUARY 1998
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

In this matter the Fourth Respondent, Donald Maxwell has moved the Court for orders that I disqualify myself from hearing this action on the grounds of apprehended bias. No actual bias was alleged.

The facts on which the application is made are not in dispute. They are contained in an affidavit of Donald Allan Ross Munro, solicitor for the Fourth Respondent.

The matter was heard, in open court, on 24 February 1998. Written submissions and a list of authorities were put to me on behalf of the Fourth Respondent. Three affidavits were filed. I have considered all of these in reaching my decision.

The relevant principle I must apply in deciding whether to sit or not to sit on this case is:-

"... 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." (Liversey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-4)

Judges applying this principle including myself in this case consider that this test is not always easy to apply because it may affect people differently.

In Webb and Hay v R [1994] HCA 30; (1994) 181 CLR 41, the High Court said there were different categories of disqualification for apprehended bias and described them. The Fourth Respondent submits that this application fits into the third category of disqualification as stated in that decision which is disqualification by association. As was said in that case, this category covers cases:

"... where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings." (at 74)

The third category of cases is usually confined to a:

".. family, financial or professional relationship with one of the parties. The determination of whether there is, by the stated test, a reasonable apprehension of bias depends upon a full understanding of the facts from which it is suggested that such apprehension arises. In so far as such bias is said to arise from a relationship between the parties, it is clearly relevant to know the duration of that relationship, its intensity and nature and the time that has elapsed between its last renewal and the performance of judicial functions said to be affected by it." (S and M Motor Repairs Pty Ltd v Caltex Oil Australia Pty Ltd (1988) 12 NSWLR 358 at 368-9 per Kirby P)

The association in question (called a disqualifying relationship by the Fourth Respondent), as the facts reveal in this case, is a relationship between myself and my son. My son is not, however, connected to this case in any way. He is not a party, a legal representative of a party or a witness. He is no longer in partnership with the firm of solicitors acting for the Fourth Respondent. The former and any ongoing relationship between my son and this firm is not a relationship in which it is suggested I have had any role whatever.

The authorities put forward for my consideration (none of which are squarely on the facts of this case). O'Connor v Nationwide News Pty Ltd (unreported, ACT Supreme Court, Higgins J, 2 August 1995), Bragg v Secretary of the Department of Employment (unreported, FCA, Madgwick J, 7 June 1996) and Aussie Airlines Pty Limited v Australian Airlines Pty Limited and Ors (1996) 135 ALR 753 all concerned factual situations where the association complained of was one the judge in question had with actual parties or legal representatives appearing in the cases in question.

It is a matter for me to decide whether all of the circumstances which exist in this case give rise to a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the resolution of the issues in this case.

Counsel for the applicant made a brief submission opposing the motion for disqualification because of lack of a relevant association with any of the people concerned with the case. Those representing other parties took a neutral position.

The Fourth Respondent also submitted that I should take into consideration as a relevant matter the importance of judges discharging their duty and not acceding too readily to suggestions of appearance of bias (See the comments of Mason J in Re JRL;Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352). I have done so.

I will not make the orders sought.

I order the Fourth Respondent to pay the costs of this motion.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor

Associate:

Dated: 25 February 1998

Counsel for the Applicant:	R Conti, QC
Solicitor for the Applicant:	V Culkoff
Counsel for the First and Second Respondents:	J R Sacker QC with M McCulloch
Solicitor for the First and Second Respondenst:	T O'Reilly
Solicitor for the Third Respondent:	G Haysom
Counsel for the Fourth Respondent:	J Poulos QC with D Jordan
Solicitor for the Fourth Respondent:	D A R Munro
Date of Hearing:	24 February 1998
Date of Judgment:	25 February 1998