Introduction
The High Court of Australia in Smits v Roach [2006] HCA 36 considered when apprehended bias compels a judicial officer to be disqualified from hearing a case. The approach in Smits v Roach is binding on all decision makers, whether they are public servants making administrative decisions or employers conducting disciplinary hearing.
Facts
Freehills were being sued for professional negligence. The plaintiff had changed representation and a dispute arose as to the terms of the plaintiff’s first solicitor’s retainer. The dispute over the retainer went to trial and was assigned to McClellan J.
McClellan J invited council to indicate whether they objected to him sitting. The second applicant and McClellan J had played golf together on a number of occasions. As the second applicant was a former Supreme Court Registrar, GLEESON CJ, HEYDON AND CRENNAN JJ noted the second applicant would have been known personally too many of the Supreme Court justices. Their honours indicated this fact alone would not have constituted grounds for apprehended bias.
Council did not object and the matter went to trial. Prior to handing down his orders, McClellan J provided draft copies to the parties to ensure the orders did not disclose confidential information, baring in mind the litigation against Freehills was still on foot. It emerged in this draft decision that McClellan J’s brother was the chairman of partners at Freehills.
The second applicant, with leave of the court requested McClellan J excuse himself on the grounds of apprehended bias. Council contended they were unaware McClellan J’s brother was a partner at Freehills. McClellan J refused to excuse himself and held council was aware that his brother was a partner at Freehills when he invited submissions as to his potential bias previously.
Even though the dispute before McClellan J concerned a retainer agreement between the plaintiff and his first solicitors, the results of the trial would alter the legal costs for the plaintiff. Council contended, if the plaintiff was successful against Freehills, McClellan J’s decision could potentially reduce the cost award against Freehills and thus benefited McClellan J’s brother.
McClellan J’s decision not to disqualify himself went on appeal to the Court of Appeal and eventually to the High Court.
Judgment
GLEESON CJ, HEYDON AND CRENNAN JJ held the parties were estopped from raising any conflict of interest as they had waived the right to object. The court held council should have been aware McClellan J’s brother was a partner at Freehills prior to the case, and council’s failure to so constituted a waiver. This decision effectively dismissed the applicants’ appeal.
Even though GLEESON CJ, HEYDON AND CRENNAN JJ were not required to determine the issue of apprehended bias, their honours elected to overturn the Court of Appeal’s conclusions due to the confusion their honours held it created. GLEESON CJ, HEYDON AND CRENNAN JJ observed McClellan J had no personal interest. The issue of bias rose to his association with a partner of a defendant in a related action.
GLEESON CJ, HEYDON AND CRENNAN JJ Observed that one of the difficulties with the bright line of automatic disqualification drawn by Dimes v Proprietors of the Grand Junction Canal is that, “upon examination, it is not nearly as bright as is sometimes supposed.” Their honours applied the test from Ebner:
"The apprehension of bias principle ... [in 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."
When applying the test of apprehended bias to this case, their honours found McClellan J had no association with a person who had an interest in the litigation. GLEESON CJ, HEYDON AND CRENNAN JJ disagreed with the Court of Appeal’s conclusion that there was a logical connection between the matter complained of and a feared deviation from impartial decision making by McClellan J. There honours found the Court of Appeal had not explain why it would have been reasonable to apprehend that McClellan J might decide the case other than on its legal and factual merits. McClennan J’s brother was a partner in a firm with over 80 partners, the monetary difference to Freehills from the litigation before McClellan J was negligible, presuming Freehills actually lost the litigation. Moreover, Freehills was insured which would reduce the direct impact on Freehills.
Conclusion
Prior to making a decision, decision makers should consider if any potential reason for bias can be identified. If they can identify any potential grounds for bias, the decision maker should assess whether there is a connection between the ground and the decision being made. If there is a logical connection, then the decision maker should excuse themselves. If the decision maker concludes there is no logical connection, then they should invite the people who will be bound by the decision to make submissions on the existence of apprehended bias. This additional step of procedural fairness enables a decision maker to consider fresh arguments for their disqualification and can act as a bar against the issue of bias being raised later. Apprehended bias can render a decision void, but with a few simple steps decision makers can guard their decision against being set aside for apprehended bias.
August, 2006
|
