Jodi-Anne Brooks v Upjohn Co & Ors [1998] FCA 929 (7 August 1998)

Last Updated: 11 August 1998

FEDERAL COURT OF AUSTRALIA

COURTS AND JUDGES - PRACTICE AND PROCEDURE - Apprehended bias - Judge refused motion to disqualify herself and ordered moving party to pay costs of that motion - whether order appealable - whether a "judgment" or "order" - hearing of principal application likely to occupy four months - whether leave to appeal should be granted - Judge's son a former partner with solicitors for moving party - those solicitors provided information to relevant body which initiated disciplinary proceedings against the son - whether reasonable apprehension of bias made out.

Federal Court of Australia Act 1976 (Cth) ss 4, 24

Maxwell v Keun [1928] 1 KB 645 referred to

R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 distinguished

Barton v Walker [1979] 2 NSWLR 740 distinguished

Livesey v New South Wales Bar Association [1983] HCA 17; (1982) 151 CLR 288 applied

S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 referred to

Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 applied

Rajski v Wood (1989) 128 NSWLR 512 referred to

Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 referred to

Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 referred to

Gas and Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48 referred to

Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 applied

Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 135 ALR 753 referred to

Temsign Pty Ltd v Biscen Pty Ltd (Federal Court of Australia, Full Court, 15 July 1996) referred to

Smith v Daleco Pty Ltd (Federal Court of Australia, 22 April 1997) referred to

JODI-ANNE BROOKS v. THE UPJOHN COMPANY, UPJOHN PTY LIMITED

DR MARTIN RICHTER and DR DONALD MAXWELL

No. NG 211 of 1993

BEAUMONT, CARR & BRANSON JJ

SYDNEY

7 AUGUST 1998

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

GENERAL DIVISION

BETWEEN:	JODI-ANNE BROOKS Applicant/First Respondent to the Motion
AND:	THE UPJOHN COMPANY First Respondent/Second Respondent to the Motion UPJOHN PTY LIMITED Second Respondent/Third Respondent to the Motion DR MARTIN RICHTER Third Respondent/Fourth Respondent to the Motion DR DONALD MAXWELL Fourth Respondent/Applicant on the Motion for Leave to Appeal

JUDGES:	beaumont, carr & branson jj
DATE OF ORDER:	7 AUGUST 1998
WHERE MADE:	SYDNEY

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. The time for filing the applicant's notice of motion dated 25 June 1998 be extended to 2 July 1998.

2. The applicant have leave to appeal from the orders made on 25 February 1998 and 2 April 1998.

3. Those appeals be dismissed.

AND DIRECTS THAT:

4. The applicant have liberty to file and serve written submissions on costs within seven (7) days of today's date; and

5. Any respondent have liberty to file and serve written submissions on costs within five (5) days of service of the written submissions of the applicant.

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

GENERAL DIVISION

BETWEEN:	JODI-ANNE BROOKS Applicant/First Respondent to the Motion
AND:	THE UPJOHN COMPANY First Respondent/Second Respondent to the Motion UPJOHN PTY LIMITED Second Respondent/Third Respondent to the Motion DR MARTIN RICHTER Third Respondent/Fourth Respondent to the Motion DR DONALD MAXWELL Fourth Respondent/Applicant on the Motion for Leave to Appeal

JUDGES:	beaumont, carr & branson Jj
DATE:	7 AUGUST 1998
PLACE:	sydney

REASONS FOR JUDGMENT

THE COURT:

Introduction

The applicant seeks leave to appeal from two sets of interlocutory orders made by a judge of this Court. One issue between the parties is whether a key order was in law an "order". However, as a matter of convenience, we shall for the time being refer to them as orders. The first set of orders was made on 25 February 1998 when the learned primary judge declined to disqualify herself from hearing the principal application and ordered the applicant to pay the respondents' costs of the motion by which he had sought such disqualification. The principal application is listed for hearing (initially for four weeks) commencing on 12 October 1998. The applicant also applies for leave to appeal against further orders, made by her Honour on 2 April 1998, one of which fixed that trial date. To the extent, at least, that those orders mean that her Honour will hear the principal application, the second application depends upon the first.

Factual Background

The principal application concerns the use of a corticosteroid medication known as "Depo-Medrol". The applicant at first instance ("Ms Brooks") sues the manufacturer and distributor of that medication, who are the first and second respondents respectively, and two medical practitioners (who administered that medication to her), who are the third and fourth respondents. There are currently over 120 other similar proceedings pending in the Supreme Court of New South Wales. Apparently the principal application is regarded as a test case. The fourth respondent, Dr Donald Maxwell, moved the judge to disqualify herself. A notice of motion to that effect was filed very soon after the parties were informed that her Honour would be hearing the case. The factual basis for that motion can be shortly stated. The Judge has four sons, one of whom ("the son") was admitted as a solicitor in New South Wales on 20 December 1989. He commenced employment with the solicitors who represent Dr Maxwell in these proceedings ("the Solicitors") on 29 June 1992. On 1 July 1995 he was appointed as an executive partner of the Solicitors. His area of practice was primarily professional indemnity and public liability litigation, but he had some involvement with the Medical Defence Union which is instructing the Solicitors in the principal application. On 2 September 1996 the son was asked to attend a meeting with the Chairman of Partners and the Staff Partner of the Solicitors. The Staff Partner was Mr Donald Munro who is the solicitor conducting Dr Maxwell's defence. The Chairman told the son that an extremely serious matter relating to the son's conduct had arisen in relation to some of his files. He said that it appeared that the son had falsified and back-dated documents for the purposes of misleading the partners of the firm, and also possibly a client. The Chairman then asked the son for his immediate resignation, which the son proffered forthwith. By arrangement, the son left the premises within a matter of hours. After obtaining independent legal advice about whether they were under an obligation to report the matter to the Law Society of New South Wales, the Solicitors did so on 11 October 1996. A complaint against the son is pending before the Legal Services Tribunal. There is no suggestion that the son was involved in any way in the conduct of Dr Maxwell's defence. By a motion on notice, filed on 23 February 1998, Dr Maxwell asked the judge to disqualify herself on the grounds, not of actual bias, but of a reasonable apprehension of pre-judgment or, as it is often described, perceived bias. The motion was opposed by Ms Brooks. Counsel for the first and second respondents, while neither supporting or opposing the motion, submitted that if her Honour had the slightest doubt that there was a possibility of a reasonable apprehension of pre-judgment, then she should "err on the side of caution" and decline to sit. Dr Richter, the third respondent, neither consented to nor opposed the motion. The motion was heard on 24 February 1998. Judgment on the motion was reserved, initially until later that day, but then until the next morning when her Honour delivered her reasons and made the orders which are set out below.

The Decision at First Instance

Her Honour, after referring to Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-4; Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 74; and S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at 368-9 identified the perceived bias as being in the third category of disqualification, described in Webb as "disqualification by association". Her Honour stated that it was a matter for her to decide whether all of the circumstances which existed in the case gave rise to a reasonable apprehension that she might not bring an impartial and unprejudiced mind to the resolution of the issues in this case. In that regard her Honour said:

"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."

Her Honour then declined to disqualify herself.

Whether the Full Court has jurisdiction to entertain the proposed appeal?

A document described as a "Notice of Contention" was filed on behalf of Ms Brooks on 10 June 1998. In that document Ms Brooks contends that her Honour's decision not to make the order sought on behalf of Dr Maxwell in his notice of motion was not a "... judgment, decree or order ..." within the meaning of those terms in s 4 of the Federal Court of Australia Act 1976 (Cth) (and thus not a "judgment" for the purposes of s 24 of that Act) or otherwise and was thus not a matter in respect of which the Federal Court has appellate jurisdiction. We do not think, strictly speaking, that Ms Brooks' document is a Notice of Contention within the meaning of Order 53 rule 13(1). However, it serves as a convenient vehicle in which to bring forward her challenge to our jurisdiction. Is it a valid challenge? We turn first to identify precisely what her Honour was asked to decide and what orders she made. The notice of motion filed on behalf of Dr Maxwell, omitting formal parts, read as follows:

"The Fourth Respondent will be (sic) at 9.30am on 24 February 1998 at Queens Square, Sydney move the Court for orders:-

1. That Justice O'Connor disqualify herself from hearing this action (sic)."

The formal orders, made by her Honour on 25 February 1998 and entered on 3 June 1998, read as follows:

"THE COURT ORDERS THAT:

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

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

Considerable reliance was placed, on behalf of Ms Brooks, on the decision of the Court of Appeal of New South Wales in Barton v Walker [1979] 2 NSWLR 740. That matter involved what was proposed to be an oral application, during the course of the hearing of certain interlocutory matters, that O'Brien J disqualify himself from hearing a suit in equity and from deciding another interlocutory matter in that suit on which his Honour had reserved judgment, on the ground of apparent bias. The only notice of such proposed application was a telephone call (or other oral communication, the report is not clear on this point) from junior counsel for Messrs Barton to the judge's tipstaff (the judge's associate being absent) in which he stated that on the date scheduled for the hearing of the interlocutory matters, counsel for one or both of Messrs Barton would move in open Court that the judge should disqualify himself from sitting further in the proceedings. On that return date, O'Brien J took his seat, referred to the above communication (and an affidavit filed in support of it) and appears to have treated the application as if it had been made orally. His Honour refused to hear argument on the matter, rejected what he described as "the application" in its entirety and ordered that the supporting affidavit be removed from the Court's file. Messrs Barton sought leave to appeal against that decision and, on the same day, filed a summons in the Equity Division seeking a declaration that O'Brien J was disqualified from hearing the proceedings. That summons was removed into the Court of Appeal. There was a further summons (in which a similar declaration was sought) which was filed and made returnable immediately in the course of the proceedings in the Court of Appeal.

Reynolds and Glass JJA delivered short reasons for judgment simply concurring with those of Samuels JA. The Court held that from the course which O'Brien J had adopted it should be inferred that his Honour had found that Messrs Barton's "application" was not cognizable and that he rejected not only the substantive claim for disqualification but also the procedural mode adopted to convey it. The Court held that his Honour was correct on both points. In his reasons for judgment at 747, Samuels JA considered whether there was a relevant "order", a term not defined in the Supreme Court Act 1970 (NSW) (nor is it defined in the Federal Court of Australia Act). His Honour noted that guidance was not to be had from the form of any document filed because, with the exception of the affidavit, there was none. No order had been entered. His Honour further observed that no notice of motion was filed but that it was not uncommon for the Court to entertain a motion for certain orders without notice. If the request for disqualification "... were an application in the strict sense", then the decision to reject that request would, so his Honour held, certainly have constituted an order. His Honour then proceeded to consider whether there was a "justiciable application". At 749 his Honour posed the question in terms of whether a judge of the Supreme Court of New South Wales, being a superior court of record with unlimited jurisdiction, will entertain a motion that he should disqualify himself from commencing or completing a case before him on the ground of perceived bias. No authorities had been cited on the point and his Honour had been unable to find any. After reviewing some publications and the position in the United States of America his Honour (at 751) held that the answer to the question whether there was an "order" was to be determined by what was said by the majority of the High Court of Australia in R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 266. Watson's case involved an application for a writ of prohibition directed to a judge of the Family Court of Australia prohibiting him from further hearing certain proceedings on the grounds of perceived bias. At 266 in the reasons of the majority there is the following passage:

"It was submitted on behalf of the husband that the wife's proper remedy was to appeal to the Full Court of the Family Court. As to that submission no more need be said than that an appeal lies only from a "decree" (s.94(1)), which means a "decree, judgment or order" (s.4(1)), and a judge who simply continues to sit after it has been submitted that he is disqualified does not thereby make a "decree". No doubt an appeal could have been brought if the learned judge had finally given judgment in the matter, but it would be obviously inconvenient to allow him to complete the proceedings when he is disqualified to hear them."

We return to Samuels JA's reasons for judgment in Barton. After citing the relevant portions of the above passage (which we have set out in full) his Honour said:

"Nor does he make an order, I would think, if he announces that he will sit, or gives reasons for deciding to do so.

I do not consider that any order was made in the present case from which an appeal can be brought."

His Honour then went on to consider the summonses filed in the Equity Division and in the Court of Appeal respectively. As his Honour was at pains to emphasise (at 752A-B) he was considering only whether there was original jurisdiction either inherent or otherwise for a single judge or three judges to make a declaration that another judge of the Court was disqualified by reasons of suspected bias. For the purposes of disposing of the present applications, we do not think that it is necessary to have regard to the rest of Samuels JA's reasons in Barton. They were based on the premise that no order had been made and that there could be no appeal. That is the very matter for decision here. The core reasoning of the Court in Barton in holding that a motion to disqualify a judge of the Supreme Court is "not cognizable" can be found at 749:

"It is, however, to my mind, a matter of real difficulty to conceive of an order directed by the judge to the judge forbidding himself to hear the case; at least in the absence of statutory regulation. Moreover, there would appear to be no way of enforcing such an order, since committal or sequestration of property [statutory provisions referred to] can hardly be regarded as appropriate remedies to be enforced against a judge for disobedience of his own order. It is no answer to this problem to assert that, upon a motion of the kind in contemplation, other ancillary orders of a more regular kind might be sought and made (e.g. for relisting before a registrar) about which the same question of enforcement would not, or might not, arise. The fundamental conceptual difficulty, granted the possibility of the judge changing his mind, remains unresolved. The further difficulty encountered is that of the judge acting as judge in his own cause. How does the judge deal with assertions of fact which he knows to be incorrect? They might not be challenged by the party not moving. How can the judge himself introduce evidence, upon which he might have to rule, if its admissibility is challenged, and which he might ultimately have to evaluate?"

His Honour proceeded to describe the problems as being compounded in the case of a collegiate court in the context of a challenge made to one judge of three rostered to hear a case. That problem does not need to be considered in the present matter.

We think that Barton can be distinguished on the basis that in those proceedings there was no notice of motion filed, no formal order extracted and no reasons for judgment published. All of those steps occurred in the present matter. They included the fixing of this Court's seal to the orders made on 25 February 1998. We acknowledge that such a distinction tends to attribute considerable importance to form over substance, but the question is a technical one of procedure where matters of form are quite often of importance. In Rajski v Wood (1989) 18 NSWLR 512 at 518 Kirby P expressed the view that, to the extent that Barton decided that objection to a refusal of a trial judge to disqualify himself or herself cannot ever be taken until the very end of the trial, such a conclusion was not necessary to the actual decision in that case. The learned President, as he then was, respectfully differed from that conclusion. His Honour (later on the same page) expressed the view that at a relatively early stage an interlocutory order made by the primary judge in Rajski "... would provide a vehicle to ground a summons ... for leave to appeal" by which the issue of bias could be raised on appeal. His Honour identified the essential reason lying behind the holding in Barton as being that no appeal lay because no order or other determination had been made which was susceptible to appeal.

Maxwell v Keun [1928] 1 KB 645 is a decision which is, we think, of some assistance in the present matter. In that case, Lord Hewart CJ refused the plaintiff's application for an adjournment of the trial of an action which was in his Lordship's list for imminent hearing. The only order made by his Lordship was that the plaintiff should pay the defendants' costs. On objection being taken that there was no appealable order, the Court of Appeal held that the attachment of an order as to costs to the decision made it plain that there was an appealable order. The Court granted leave to appeal and ordered that the case stand out of the list and not be heard during the then current legal term. The Court emphasised that it would rarely interfere with such an exercise of discretion, but did so on this occasion in the interests of justice (the plaintiff was on army service in India and would have had no chance of reaching London in time for the hearing).

In Gas and Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48 at 59-64 Gummow and Heerey JJ (with whom Davies J agreed) reviewed the authorities. In that case the primary judge, after a lengthy hearing and very shortly before delivering his reserved judgment, acceded to the applicants' request to disqualify himself on the ground of perceived bias.

His Honour made orders that the proceeding no longer stand for judgment, that it be placed in the list of cases to be fixed for hearing, and that the costs of the trial (and other costs) be reserved to the judge who would thereafter try the proceedings. The Full Court of this Court held that there was jurisdiction for it to consider whether the primary judge had erred in disqualifying himself. That was because the orders pronounced by his Honour, which we have just summarised, although procedural directions, and thus interlocutory, were "orders nonetheless" (see p 64). They were orders which, subject to obtaining leave, were properly the subject of an appeal. The same can be said of the two sets of orders in this matter. In the present matter, assuming that such a vehicle is necessary to ground an application for leave to appeal, it can be found in the orders made by her Honour on 2 April 1998, which included an order fixing the trial date. Even the costs order made by her Honour on 25 February 1998 when she declined to disqualify herself would suffice. Mr B Donovan QC, for Ms Brooks, argued that she had abandoned any claim to enforce that order for costs. The evidence shows that Ms Brooks pursued the claim for costs most vigorously both before and in anticipation of the result of the motion and after her Honour decided the motion. The costs were "abandoned" only after the question arose, on the first callover of this application, as to whether there was a relevant order upon which to ground an application for leave to appeal. In those circumstances, we do not think that any such "abandonment" should prevent the application of what appears to be a procedural gloss on the Barton principle i.e. the use of such an order as a vehicle to do justice at a stage early enough to avoid what might be very substantial inconvenience and expense. Mr Donovan submitted that the orders made (by way of further directions) on 2 April 1998 were not sufficiently disputed to be used for this purpose. In reply, Mr Heydon tendered the transcript of what took place on that date. From that transcript we are satisfied that there was a live dispute in relation to the hearing date (involving as it did her Honour as the trial judge). Dr Maxwell reserved his rights pending the hearing of these applications and should not be regarded as consenting to the orders then being made, in particular the order setting down the matter for trial for hearing before her Honour. No point was taken on behalf of Ms Brooks that, in its express terms, paragraph 1 of the orders which we have set out above simply evidenced a decision not to make an order as sought. In our view, in substance, the orders made by her Honour should be construed as orders dismissing Dr Maxwell's motion with costs. The second set of interlocutory orders are the converse of the orders in Gas and Fuel. If what we consider to be a somewhat artificial device of fastening on the orders which we have just identified, is the appropriate way of enabling review on appeal (before a trial) of a decision on a disqualification application, then it is clear that we have jurisdiction in this matter.

If we are wrong in our assessments that Barton can be distinguished or that the other orders which we have identified are sufficient to ground an application for leave to appeal in the course of which the disqualification issue can be resolved then, we would, with the greatest of respect, not follow that decision. It does not sit all that comfortably with the later decision of the same court in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411. That appeal proceeded apparently (see 423) on the basis that the parties were content to ignore Barton's case. In the context of what is said (in this matter) to be a jurisdictional difficulty, the course which the Court adopted in ANI might be regarded as an indication that Barton may have outlived its usefulness. At the same page Kirby P expressed the view that "it may one day be necessary to review that holding ...". [His Honour expressed a similar view in Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 609.] His Honour decided that he would "... simply pass the Barton v Walker issue by, saying nothing more upon it." Neither Gleeson CJ or Samuels JA (who were in dissent on the five judge court) referred to Barton. Mahoney JA (at 436-437) endorsed the principle in Barton but referred to the fact that the primary judge had made an order which was properly the subject of appeal, thereby inviting the Court of Appeal's decision on the matter of perceived bias. Meagher JA made no mention of Barton. The problems which Samuels JA identified in Barton (in the passage which we have set out above) which led to his Honour characterising a disqualification motion as "not cognizable" are, in our view, not insurmountable. For example, a disqualification order or an order refusing to disqualify might be regarded as being in its nature declaratory and self-operative in the vast majority of cases. Enforcement problems are unlikely to arise. Next was the perceived problem of a judge changing his or her mind. Disqualification orders are clearly interlocutory and the usual principles with regard to variation or recall of interlocutory orders would apply; see, for example, Temsign Pty Ltd v Biscen Pty Ltd (Federal Court of Australia, Full Court, 15 July 1996) per Beaumont J at 7. Finally there was the problem of how a judge might deal with assertions of fact which he or she knows to be incorrect. That situation arose in the present matter at first instance. Her Honour handled the problem by informing counsel of what she knew of further developments in the case before the Legal Services Tribunal. That included a matter of some significance, namely, her Honour's understanding that the proceedings before the Legal Services Tribunal would not be contested, but that extenuating circumstances would be put to the Tribunal. We would have thought that it would be a rare case in which the admissibility of such evidence would be challenged. If and when that happens, it is likely that the parties will be put on notice and a way will be found to secure the evidence in a form which could not be challenged. A recurrent theme in the cases (including R v Watson; Ex parte Armstrong, to which we will return in a moment) is that of convenience. Any inconvenience which might arise from the problems identified by Samuels JA in Barton would, in our view, be far less than the obvious inconvenience of submitting the parties to a trial conducted by a judge disqualified to hear it and only allowing the point to be taken on appeal after judgment.

The observations by the majority of the High Court in R v Watson; Ex parte Armstrong at 266 were not essential to the decision in that case. The facts of that matter were very different from the facts of the present matter. Furthermore, the majority referred to the obvious inconvenience of allowing a judge to complete proceedings when he is disqualified to hear them. In all of the circumstances, we would not regard what fell from the High Court in that case as binding in the present matter. We acknowledge that the view which we have expressed may be seen in some quarters as encouragement to engage in what was described in this matter as "judge shopping". However, such a perception would, in our opinion, under-estimate the capacity of judges at first instance to recognise such a tactic and the controls which exist at appellate level to discourage what might otherwise be a flood of appeals against disqualification decisions. They include, of course, stringent scrutiny at the stage of application for leave and, where appropriate, a variety of costs orders.

Whether leave to appeal should be granted?

The decision at first instance was interlocutory. It may well be, as Mr Heydon QC, senior counsel for Dr Maxwell on the appeal submitted, that the decision was neither discretionary nor related merely to practice or procedure, because the appearance of impartial adjudication is a matter fundamental to the administration of justice (an expression used by Moore J in Smith v Daleco Pty Ltd (Federal Court of Australia, 22 April 1997 at p 12). We do not think it is necessary to decide that point because we would grant leave to appeal in any event, on the basis that the matter is of considerable public importance. First, we consider that the applicant's case on the appeal is, at least, reasonably arguable and in those circumstances it is in the interests of justice that the issue of perceived bias be reviewed at appellate level in the somewhat unusual circumstances of the present matter. We should not be understood as suggesting that, on its own, an arguable appeal on the question of perceived bias would always warrant a grant of leave. The principal application here is in the nature of a test case. Furthermore, it would not be desirable, in our view, for a long hearing (four months) to take place followed by the possibility that one party might, on subsequent appeal, seek to argue that the Judge erred in failing to disqualify herself.

The Appeal

From the authorities cited by the primary judge, and those referred to below, it is clear that the question for decision is whether, in all the circumstances, the parties or the public (being fair-minded and informed) might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to deciding the principal application. In Livesey (at 294) the High Court said:

"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."

In S & M Motor Repairs (at 378) Priestley and Clarke JJA framed the question as being whether an observer (being an observer of average intelligence and little knowledge of the legal system) would reasonably apprehend possible partiality. As can be seen from that decision (at 379-381) part of the process of testing whether such an observer's apprehension is reasonable, involves informing him or her with sufficient knowledge of the subject to make a reasonable judgment. The observer must be "moderately informed". In that regard, see Toohey J in Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 585. Fortunately, in our view, the observer in this case only needs to be informed of very limited circumstances which might not be commonly understood, about the normal course of conduct of legal affairs. The factual situation of the present matter is much simpler than that in S & M Motor Repairs.

The present situation is one where there are disciplinary proceedings pending against the judge's son, being proceedings initiated as a result of information provided by the Solicitors to the relevant authority i.e. the Professional Standards Department of the Law Society of New South Wales. Would a reasonable observer apprehend possible bias? Alternatively, (as the High Court put it in Livesey) is there any real possibility that the judge's participation in the case might lead to a reasonable apprehension of bias? It must be stressed, as (different) senior counsel for Dr Maxwell stressed both at first instance and on appeal, that, of course, there is no suggestion whatsoever of any actual bias. The question is the different, and usually more difficult one, of whether there may be a reasonable perception of bias?

With the greatest of respect to the judge at first instance, her Honour appears to have focused on the relationship between herself and her son and the relationship in turn between her son and the solicitors, in a fairly narrow manner - see the sentence which reads "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." Again with the greatest of respect, that was not the nub of Dr Maxwell's concerns. Those concerns (as put forward at the hearing of the motion) were based on the Solicitors' ongoing role in the disciplinary proceedings and not on whether the judge had any role in those proceedings. In fairness to her Honour, the transcript of the proceedings before her shows that she well understood those concerns.

In argument before her Honour, senior counsel for Dr Maxwell submitted that a reasonable observer might perceive bias arising in two sets of circumstances. The first was a perception of "negative" bias based on the Solicitors' role as informants in the disciplinary proceedings. The second was the situation that a partner in the Solicitors' firm was likely to give evidence in favour of the son, which might give rise to a perception of "positive" bias.

On appeal, Mr Heydon submitted that the events of 2 September 1996 in themselves are likely to have caused the son extreme distress whatever the rights or wrongs of the son's position. He submitted that a reasonable bystander would be likely to entertain, as a real possibility, that the parent of a son in that position would also suffer extreme distress. In terms of a relationship, Mr Heydon contended that there was a relationship (described as being perhaps an involuntary one) between the primary judge and the Solicitors. That relationship was, so it was put, formed in consequence of the son's partnership to 2 September 1996, the events of that day and the fact that thereafter the Solicitors had been under an obligation to take the matter to the authorities and presumably to assist them in the future. Mr Heydon submitted that a reasonable bystander might apprehend as a real possibility that in those circumstances the parent might well experience animosity towards the Solicitors. Those circumstances could also, so it was submitted, be characterised as being "indirect ... experience or contact" between the primary judge and the Solicitors. [The words in quotation marks are taken from Webb at 74].

Mr Heydon submitted that a reasonable bystander, possessed of knowledge of the facts but not necessarily complete knowledge of the law, might reason that the close relationship of parent and child is such that it would be almost contrary to human nature to expect all judges in the above circumstances to behave with complete neutrality. Such a bystander, so it was submitted, might further reason that there may well be some judges, including the primary judge, "who will be expected to react with hurt" to what has happened, that even if the judge apprehends such a feeling and endeavours to control it, that is not easy to do and the feeling might well operate "subconsciously, beyond the power of rational restraint".

Mr Heydon also referred to the risk that Mr Munro might be called as a witness at the hearing of the application, for example, on matters of discovery of documents or recent invention by a witness. It would, he submitted, be "calamitous" if half way through a three or four month trial that happened and it was felt at that point there should be disqualification.

We do not accept those submissions. In our opinion the independent observer is to be taken to know, or, by being moderately informed, to assume that a judge would:

. expect a firm of solicitors to do precisely what the Solicitors did in this matter;

. not expect his or her child to be treated differently to any other person;

. respect, or regard with neutrality, a firm which fulfilled its duty by reporting the matter to the Law Society;

. be very unimpressed if a firm shirked its duty in that regard (particularly where the son of a judge was involved); and

. at the same time, would take it for granted that, if there were extenuating circumstances, a partner in the firm of Solicitors would, as a matter of ordinary fairness (not something warranting any reward), bring such matters to the attention of the Law Society.

In our view, an independent observer, armed with that degree of information about what judges expect to happen as a matter of course, would not be acting reasonably in having a perception that her Honour might not bring an impartial and unprejudiced mind to the disposition of this case.

As Merkel J pointed out in Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 135 ALR 753 at 763, there is

"... the requirement for a cogent and rational link between the association and its capacity to influence the decision to be made in the particular case."

We do not think that there is such a link in the present matter.

For those reasons, we would grant leave to appeal, extend time where necessary, but dismiss the appeal with costs.

I certify that this and the preceding fifteen (15) pages are a true copy of the Reasons for Judgment of the Court

Associate:

Dated: 7 August 1998

Counsel for the Applicant (on the motions):	Mr J D Heydon QC with Mr D K Jordon
Solicitors for the Applicant:	Messrs Tress Cocks & Maddox
Counsel for the First Respondent:	Mr B Donovan QC
Solicitors for the First Respondent:	Messrs Cashman & Partners
Counsel for the Second and Third Respondents:	Mr M T McCulloch
Solicitors for the Second and Third Respondents:	Messrs Minter Ellison
Counsel for the Fourth Respondent:	Ms G Hayson
Solicitors for the Fourth Respondent:	Messrs Blake Dawson Waldron
Date of Hearing:	14 July 1998
Date of Judgment:	7 August 1998