Apprehended Bias Arising from Familiarity with Witness

In Goldsmith v Legal Services and Complaints Committee [2023] WASCA 136 (21 September 2023), the Court of Appeal of Western Australia gave consideration to, and applied the principles concerning recusal of a trial judge where he or she enjoys a familiarity with a witness from a past association of some kind, where credit is in issue. The case in question involved a judge in a legal professional complaints setting harbouring a prior association with a witness in the course of practice as barristers in the same – but very substantial – chambers in Western Australia, but with their association underscored by sitting on the Board of Directors of that chambers for a period of eight years, each having served as Chairman of that Board for part of that period. The witness was the complainant below, the respondent being a solicitor who had briefed the barrister, and who was charged with failing to make timely payment of the barrister’s fees. No recusal occurred below, and the respondent (the appellant on the appeal) was suspended from practice for 12 months. He appealed alleging apprehended bias on the part of the judge panel member, which in turn infected the decision of the three members of the panel. The appeal was successful.

The case points up the position which ought be adopted by any trial judge – sitting alone or as a member of a tribunal panel – in circumstances where it transpires that the judge enjoyed some previous association – despite it not being a friendship – with a witness that comes before them, in respect of whom the judge or panel is obliged to make findings of credit. This will often occur outside the legal sphere. The court gives an example of a New South Wales Court of Criminal Appeal case in which the judge, in respect of a witness whose credit needed to be adjudicated, where that witness had worked at a butcher’s shop which he used to attend some 18 years previously, and who had regularly served the judge, informed counsel that the judge had bought a lot of meat from him and the judge was “sure he gave me the best cuts”.

Mazza and Mitchell JJA (Vaughan JA agreeing) wrote:

Introduction and summary

[1] On 23 May 2022, the State Administrative Tribunal found that the appellant engaged in professional misconduct and unsatisfactory professional conduct within the meaning of s 402 and s 403 of the Legal Profession Act 2008 (WA) (LP Act). Although the LP Act has been repealed and replaced by the Legal Profession Uniform Law (WA),1 it is common ground that the LP Act continues to apply in relation to the current proceedings

[2] In broad terms, the findings arose out of the appellant, acting as solicitor for a client, engaging the complainant to appear as counsel for the client. The Tribunal found the appellant to have engaged in professional misconduct by:

1. failing to pay the complainant’s fees in circumstances where there was no agreement to defer the appellant’s liability to do so and the appellant did not believe that there was such an agreement;
2. complaining to the Western Australian Bar Association about the complainant, without a reasonable basis for doing so, in response to the complainant’s claims for fees;
3. filing a defence in the Magistrates Court proceedings, brought by the complainant to recover fees, which he knew contained untrue statements as to the deferral of his liability to pay the complainant’s fees; and
4. seeking to include, when negotiating a settlement of the Magistrates Court proceedings, a term that the complainant withdraw his complaint to the respondent’s predecessor about the appellant’s conduct in relation to the payment of the fees.

[3] The Tribunal found that the appellant engaged in unsatisfactory professional conduct by seeking to engage the complainant to appear as counsel in further proceedings, despite the ongoing dispute between them.

[4] An important issue in dispute in the disciplinary proceedings concerned the nature and content of a phone call on 29 October 2016 between the appellant and complainant concerning the topic of fees. In their evidence in the disciplinary proceedings, the appellant and complainant gave different accounts of the phone call. The appellant contended the complainant had agreed to certain fee arrangements contingent upon conditions which had not been met. The complainant denied this was the case. The resolution of these conflicting accounts of the phone call required the Tribunal to assess the credibility and reliability of the appellant’s and complainant’s evidence. The Tribunal made adverse findings about the appellant’s credibility and provided detailed reasons for preferring the complainant’s account of the 29 October 2016 phone call.2 The Tribunal found that there was no agreement in the phone call to defer the payment of the complainant’s fees and the appellant did not believe he had such an agreement.

[5] On 6 December 2022, the Tribunal made an order recommending that the appellant be suspended from practice for a period of 12 months in the State in which he is admitted.

[6] The appellant now appeals against the Tribunal’s orders on various grounds. Ground 1, so far as it was not abandoned at the hearing of the appeal, concerns the prior association between Deputy President Jackson DCJ, who was one of the Tribunal members who determined the matter, and the complainant. Ground 1 contends that the prior relationship between the Deputy President and the complainant gave rise to a reasonable apprehension of bias. This ground, which raises an issue as to the validity and acceptability of the disciplinary proceedings, must be considered at the outset.3

[7] While the respondent did not concede that the prior association between the Deputy President and the complainant gave rise to a reasonable apprehension of bias, its submissions pressed only faintly against that proposition.4 The respondent’s principal argument in opposition to ground 1 was to contend that the appellant had waived his right to object to the constitution of the Tribunal. For that purpose, the respondent relied on a disclosure by the Deputy President made to the parties at a directions hearing prior to the substantive hearing of the disciplinary proceedings. The appellant contended that the information disclosed at that hearing was not sufficiently detailed to give rise to a waiver on his part.5

[8] For reasons explained below, ground 1 is established. The prior association between the Deputy President and the complainant was such as to give rise to a reasonable apprehension that the Deputy President might have preconceived views as to the complainant’s honesty and reliability formed during a long association as members of a board of directors. A fair‐minded properly informed observer might apprehend that those preconceived views might, consciously or unconsciously, deflect the Deputy President from assessing the credibility and reliability of the complainant’s evidence based only on an assessment of the evidence given in the Tribunal. That reasonable apprehension would arise in proceedings which were likely to, and did in fact, largely turn on an assessment of the credibility and reliability of the complainant’s and appellant’s conflicting evidence.

[9] In those circumstances, a reasonable apprehension of bias by the Deputy President arose. Absent waiver, the Deputy President should not have formed part of the Tribunal panel which determined the disciplinary proceedings against the appellant. Although the Deputy President was only one member of a panel of three members, his Honour’s participation in the proceedings deprived the Tribunal as constituted of jurisdiction to determine the disciplinary proceedings.

[10] The appellant did not waive his right to a determination of the disciplinary proceedings by a Tribunal whose members were not affected by a reasonable apprehension of bias. The disclosure by the Deputy President did not reveal facts which are essential to the conclusion that the prior association between his Honour and the complainant gave rise to a reasonable apprehension of bias. The appellant was under no duty to further investigate whether there were circumstances not disclosed to him which would give rise to a reasonable apprehension of bias. In the absence of knowledge or disclosure of the essential facts giving rise to a reasonable apprehension of bias, the appellant cannot be said to have waived his right to a hearing by a Tribunal whose members are, and are seen to be, impartial.

[11] It follows that the Tribunal’s orders must be set aside, and the proceedings remitted for determination by a differently constituted Tribunal. Although the other Tribunal members were not subject to a reasonable apprehension of bias, the fact that they have made credibility findings in the earlier proceedings would make it inappropriate for them to determine the remitted proceedings.6

[12] These conclusions in relation to ground 1 make it unnecessary to determine the appellant’s other grounds of appeal or the respondent’s cross‐appeal against the penalty orders.

Circumstances giving rise to a reasonable apprehension of bias

[13] The circumstances alleged to give rise to a reasonable apprehension of bias in this case were relatively confined and were uncontroversial at the hearing of the appeal.

[14] Prior to the Deputy President’s appointment as a judge of the District Court of Western Australia on 31 January 2022, both his Honour and the complainant practised as barristers at Francis Burt Chambers. Francis Burt Chambers is a large set of barristers’ chambers which comprised more than 130 members at the time of the disciplinary proceedings. Its operations are managed by WA Bar Chambers Ltd. The complainant was a director of WA Bar Chambers from November 2001 to November 2019. The Deputy President was a director of WA Bar Chambers from November 2010 to November 2015 and from April 2016 to January 2022.7

[15] The association on which senior counsel for the appellant relied as giving rise to a reasonable apprehension of bias was the period of over 8 years during which the Deputy President and the complainant served together on the board of directors of the company operating Francis Burt Chambers. Reliance on certain other aspects of the association between the Deputy President and the complainant was abandoned at the hearing of the appeal.8

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Reasonable apprehension of bias arising from prior association

[16] In our view, the general principles as to apprehended bias applicable to a judge also apply to a judicial member of the Tribunal in the determination of contentious proceedings.

[17] Reasonable apprehension of bias will be established 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. In applying this principle, it is necessary to identify what is said might lead a judge to decide a case other than on its legal or factual merits, and to articulate a logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The reasonableness of the apprehension may then be assessed.9 The test is objective and the fair‐minded observer is someone who is aware that the person who is being observed is a professional judge whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial.10 However, the observer is cognisant of human frailty and understands that information and attitudes consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision‐makers.11

[18] It is well established that a reasonable apprehension of bias by prejudgment may arise from past association between a decision‐maker and a person interested or otherwise involved in the proceedings.12

[19] An illustration of the application of the apprehended bias test to a past association between a judge and a witness may be found in the decision of the New South Wales Court of Criminal Appeal in McIver v R .13 That case concerned a judge‐alone trial of an accused for historic child sexual offences allegedly committed against four complainants. During cross‐examination of one of the complainants, the trial judge appreciated that the complainant had worked at a butcher which she used to attend some 18 years previously. The complainant had regularly served the judge, who observed to counsel that she had bought a lot of meat from him and she was ‘sure he gave me the best cuts’.14 The credibility and reliability of the complainant was obviously central to the contested issues at that trial. The court held that a reasonable apprehension of bias arose in those circumstances, in which a fair‐minded lay observer might reasonably think that, where a good relationship existed over a lengthy period, there would at least be an unconscious predisposition in favour of that person compared with the stranger on the other side of the proceedings.15

[20] The risk of unconscious bias is significant in this context. As was observed by the Supreme Court of the United States,16 in a passage approved in Australia:17

[R]eason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconscious feelings may operate in the ultimate judgment, or may not unfairly lead others to believe they are operating, judges recuse themselves. They do not sit in judgment. They do this for a variety of reasons. The guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact.

[21] This is particularly so in cases involving the assessment of the credibility and reliability of witnesses. One common way in which a reasonable apprehension of bias may arise is where a judge has made findings in a previous case about the credibility of a witness. In Livesey v New South Wales Bar Association the High Court, while recognising that each case must be determined by reference to its particular circumstances, observed:18

[I]n a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair‐minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact. (emphasis added)

[22] There is, however, no absolute rule against a judge who has formed a view of the credibility of a witness in hearing previous matters from ever sitting in a subsequent case in which the witness may give evidence. As was noted in Vakauta v Kelly ,19 the requirement of the reality and the appearance of impartiality in the administration of justice is one which must be observed in the real world of actual litigation. In Vakauta, the court drew a distinction between preconceptions of the expertise or reliability of the professional opinions of expert witnesses who may regularly appear before the courts and the credit or trustworthiness of a non‐expert witness whose evidence constitutes a live and significant issue in the case.

[23] Equally, in cases involving the professional discipline of members of a relatively small legal profession before the Tribunal, it must be recognised that members of the Tribunal will frequently have had incidental professional contact with members of the profession who may be the subject of, or witnesses in, the proceedings. This is illustrated by the fact that, in the present case, all members of the coram of this court have had prior associations with the complainant.20 Not every incidental association of that kind will prevent a member of the Tribunal from dealing with a matter involving a practitioner who is known to them to some extent. The question is one of fact and degree which will require an assessment of both the nature of the prior association, the issues raised for the Tribunal’s decision and the potential significance of the evidence of a practitioner known to a panel member to the facts which the Tribunal is required to determine. In considering whether a previous connection with a participant in the proceedings gives rise to a reasonable apprehension of bias, it is relevant to consider all features of the connection, including the nature, duration, intensity and proximity of the association between the judge and the participant.21

[24] An objection to the constitution of a multi‐member court based on an allegation of bias on the part of one of its members raises a question of the jurisdiction of the whole court. Reasonable apprehension of bias on the part of one member deprives the court of jurisdiction to proceed to hear and determine the matter. There is no inquiry into the impact the member’s participation may have had on the outcome of the case.22 The same principles must also be applied to the Tribunal when it is constituted by multiple members.

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Waiver

[36] A party to proceedings may waive their right to object to a judge or tribunal member continuing to hear and dispose of the case. The principle was stated on the following terms by Toohey J (Brennan, Deane & Gaudron JJ concurring) in Vakauta:23

There is no reason why, in authority or in principle, a litigant who is fully aware of the circumstances from which ostensible bias might be inferred , should not be capable of waiving the right later to object to the judge continuing to hear and dispose of the case. …

In the result, when a party is in a position to object but takes no steps to do so , that party cannot be heard to complain later that the judge was biased. It was suggested during argument that this situation may be one, not of waiver, but of estoppel. … The situation is one in which the law prevents a party to litigation from taking up two inconsistent positions; he is held to his election. While, of course, the community has an interest in knowing that cases are decided impartially, that interest is not affected adversely by a doctrine which refuses a party to litigation the opportunity to resile from a position he has taken. The appellant should be held to have waived any entitlement to challenge what was said by his Honour during the hearing. (emphasis added)

[37] In the same case, Dawson J observed:24

It cannot be the position that a party can wait to see whether the outcome of a case is favourable to him before raising an objection, the availability of which he was previously aware, on the ground of bias.

There can, I think, be no doubt that an objection upon the ground of bias can be waived. Even where it is a question of the public apprehension of bias, the parties themselves must be competent to waive the objection. Although justice must manifestly be seen to be done, where a party, being aware of his right to object, waives that right, there will be little danger of the appearance of injustice. (emphasis added)

[38] In Smits v Roach,25 Gleeson CJ, Heydon and Crennan JJ expressed the principle in the following terms:

It has been held in this Court, on a number of occasions, that an objection to the constitution of a court or tribunal on the ground of apprehended bias may be waived, and that, if a litigant who is aware of the circumstances constituting a ground for such objection fails to object, then waiver will result. (emphasis added)

[39] In Michael Wilson & Partners Ltd v Nicholls ,26 the plurality expressed the principle in the following terms:

It is well established that a party to civil proceedings may waive an objection to a judge who would otherwise be disqualified on the ground of actual bias or reasonable apprehension of bias. … If a party to civil proceedings, or the legal representative of that party, knows of the circumstances that give rise to the disqualification but acquiesces in the proceedings by not taking objection, it will likely be held that the party has waived the objection. (citations omitted) (emphasis added)

[40] In the above passages quoted from Vakauta, Toohey J referred to a litigant being ‘fully aware of the circumstances from which ostensible bias might be inferred‘ and being ‘in a position to object’. Dawson J referred to a party ‘being aware of his right to object’. The passage from Smits refers to a litigant’s awareness of the circumstances constituting a ground for objection. The passage from Michael Wilson & Partners refers to the party’s knowledge of circumstances that give rise to the disqualification. In none of the above cases was the content of the knowledge at issue. In Vakauta and Michael Wilson & Partners, the relevant circumstances arose from events occurring in the court room. In Smits the party’s counsel had knowledge of the relevant circumstances (which was attributed to the party).

[41] It seems clear that it is not necessary for a party said to waive the right to object on grounds of apprehended bias based on past association to be aware of every detail of the relationship. However, in our view, before a party can be said to have waived the right to object, the party must at least be aware of circumstances which would be sufficient to ground a proper objection.

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[44] The difficulty with the terms in which the disclosure was made is that it did not indicate that the Deputy President and the complainant had served on the board of directors at the same time. Further, the disclosure does not indicate that the Deputy President and the complainant served together as members of the board for over 8 years. The disclosure that they ‘both served on the board … and both served as chairman’ tends to suggest that the service on the board was as chairman (which would ordinarily be consecutive rather than concurrent).

[45] The unchallenged evidence of the appellant in the appeal is that he subjectively understood the Deputy President’s disclosure in the terms suggested above. In an affidavit sworn on 30 March 2023, the appellant deposes that he was unaware, until March 2023, that the Deputy President and complainant served on the board of directors at the same time. The appellant also deposed:27

I did not make any enquiries about his Honour Judge Jackson following the interlocutory hearing on 22 February 2022 because of his Honour’s comment that he and [the complainant] were both members of chambers with more than 130 barristers. Whilst his Honour said that they had both served on the board of Francis Burt Chambers and had both served as chairman of the board of chambers, I did not understand from those words that they had served on the board at the same time. I formed the impression, from his Honour’s Judge Jackson’s comments, that his Honour Judge Jackson and [the complainant] had not had a close association with one another.

[46] That is, the appellant did not know of the circumstances on which our finding as to the existence of a reasonable apprehension of bias is based. The appellant appeared in person in the disciplinary proceedings so there was no relevant knowledge of any legal representative that could be attributed to the appellant. Further, notice of the critical facts — that the Deputy President and complainant had served together on the board of directors for over 8 years — was not objectively conveyed by the terms of the Deputy President’s disclosure. Those facts were critical to the existence of something more than incidental professional contact between two legal practitioners which would not, ordinarily or in the circumstances of this case, give rise to a reasonable apprehension of bias by reason of past association with a witness.

[47] In these circumstances, the appellant did not have actual or attributed knowledge of circumstances which would give rise to a reasonable apprehension of bias on the part of the Deputy President. The facts of which the appellant was aware — that the Deputy President and complainant had both been members of Francis Burt Chambers and served as chairman of the board of directors — were not sufficient to give rise to any reasonable apprehension of bias. The appellant was not aware of circumstances that give rise to any disqualification or proper ground for objecting to the Deputy President’s participation in the proceedings. He cannot be said to have waived his right to object or acquiesced in the Deputy President participating in the disciplinary proceedings in these circumstances.

[48] We do not accept the respondent’s submission that the fact that the relevant circumstances could have been discovered by the appellant on a search of publicly available information gives rise to waiver on his part. A litigant has no duty to investigate the present or past personal affairs of a judge determining their case and there are sound public policy reasons against the formulation of such a duty. In Limbo v Little ,28 the Full Court of the Supreme Court of the Northern Territory considered a referred question as to whether a litigant may seek to ascertain by direct questioning of a judge any facts concerning the judge which, if so disclosed, might lead to an application that the judge disqualify himself or herself on grounds of apprehended bias. In answering that question in the negative, Martin J (Kearney & Rice JJ agreeing) observed:29

Usually, the facts upon which it might be thought a reasonable apprehension of bias could arise, are known to the litigants or at least one of them. Sometimes the judge, as a matter of judicial integrity, makes facts known to the parties which he considers ought to be disclosed, so that the parties or either of them can consider whether a reasonable apprehension of bias could arise. … The facts which a judge might disclose are generally facts which are known to some members of the public, not necessarily to the parties or their advisers, but it is for the judge to decide for himself whether a disclosure should be made, not for a litigant to venture upon a ‘fishing expedition’ with a view to ascertaining whether there is something personal to the judge, and not known to him, which could found an application that the judge disqualify himself. … If impartiality is lacking, or could be fairly thought to be lacking, it may well become evident sooner or later, but it is not for the litigant to pry into the judge’s background. It is for the judge to disclose a fact if it seems to him that it may be thought to have a bearing upon his neutrality.

[49] While these remarks are directed to questioning of a judge by a litigant, in our view litigants should likewise not be encouraged to undertake private investigations into the personal associations and affairs of judges assigned to their case fishing for information which might support a recusal application. The question of waiver is not to be answered by reference to investigations which could have been undertaken, but rather is to be addressed by reference to the actual or attributed knowledge of the parties. That question is to be addressed in a context where, as a matter of prudence and professional practice, a judge who does not recuse himself or herself should bring to the attention of the parties as soon as practicable any fact or circumstance which gives rise to a serious possibility of potential disqualification for apprehended bias.30 Where the relevant facts or circumstances do not concern events in the courtroom and are not otherwise known to the parties, the question of waiver is to be considered in light of the information conveyed by the judge’s disclosure.

[50] The appellant was in no position to object to the Deputy President’s participation in the disciplinary proceedings, as he did not have knowledge of facts which could support a recusal application prior to the Tribunal’s determination. No waiver could arise in these circumstances.

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(emphasis added)

1 Applied by s6 of the Legal Profession Uniform Law Application Act 2022 (WA). The LP Act was repealed by s260 of that Act.

2 Primary decision [153]–[169].

3 See Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 [3] (Gummow ACJ), [117] (Kirby & Crennan JJ); Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289 [10].

4 Respondent’s submissions, pars 52.5–52.7 (White AB 52–53); appeal ts 41–43.

5 Appellant’s amended submissions, pars 41–42 (White AB 24); appeal ts 39–40.

6 We note that, in any event, Allanson J, who sat as Supplementary President in the disciplinary proceedings, has retired as a judge since the primary decision was made.

7 White AB 121.

8 Appeal ts 35 ‐ 37.

9 See Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6], [8]; Smits v Roach [2006] HCA 36; (2006) 227 CLR 423 [53]–[60]; QYFM v Minister for Immigration [2023] HCA 15; (2023) 97 ALJR 419 [37]–[38], [67], [162], [194], [225].

10 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [12].

11 Ebner[8]; CNY17 v Minister for Immigration [2019] HCA 50; (2019) 268 CLR 76 [28]; QYFM [47], [70], [171].

12 Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272 , 275; Webb v R (1994) 181 CLR 41 , 74 (Deane J); Ebner[24]; Mueller v Que Capital Pty Ltd [No 2] [2016] WASCA 157 [31].

13 McIver v R [2020] NSWCCA 343 .

14 McIver [48].

15 See especially McIver [75]–[76].

16 Public Utilities Commission of the District of Columbia v Pollak (1952) 343 US 451, 466–467.

17 CNY17 [27]; GetSwift Ltd v Webb [2021] FCAFC 26; (2021) 283 FCR 328 [39].

18 Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 , 300.

19 Vakauta v Kelly (1989) 167 CLR 568 , 570–571.

20 The nature of those associations was disclosed to the parties, who indicated they had no objection to any member of the coram sitting on the appeal, prior to the hearing of the appeal. The members of the court were satisfied, collectively and individually, that our prior associations with the complainant did not give rise to any reasonable apprehension of bias by any member of the coram: see appeal ts 2.

21 S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 , 372–373, 381; QYFM [256].

22 QYFM [27]–[29], [57]–[58], [92], [188].

23 Vakauta (587–588). Similarly, in Re Alley; Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation (1985) 60 ALJR 181 , 182, the court refused leave on discretionary grounds where the appellant’s legal representatives were ‘fully aware’ of the circumstances alleged to give rise to disqualification for bias.

24 Vakauta (577).

25 Smits v Roach [2006] HCA 36; (2006) 227 CLR 423 [43].

26 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [76].

27 White AB 122.

28 Limbo v Little (1989) 98 FLR 421 .

29 Limbo (428–429).

30 Ebner [69]–[70]; Dovade Pty Ltd v Westpac Banking Corporation [1999] NSWCA 113; (1999) 46 NSWLR 168 [105]–[107].

The link to the full decision is here.