When a Turkish Delight Gives Rise to a Judge’s Dilemma

Whilst the test to be applied in respect of apprehended bias may be firmly established in Australia1  as “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”, the actual course that a judge must undertake when such a complaint has been raised is not always clear.

In Australia, in addition to decided cases, obiter, extra-judicial speeches and academic papers, assistance can be derived from the “Guide to Judicial Conduct” that was published by the Australasian Institute of Judicial Administration in March 2007.2

The El-Farargy case

The underlying proceedings in El-Farargy v El-Farargy & Ors.3  involved a matrimonial property dispute. Mrs El-Farargy claimed that the matrimonial residence was owned jointly by her husband Mr El-Farargy and herself, whereas Mr El-Farargy countered that a company he controlled with the third respondent, a Sheikh from Saudi Arabia, were the owners.

The proceedings had an extensive history of delay and non-compliance by the husband.  During a two day directions hearing the presiding judge made several comments which the third respondent submitted demonstrated an apprehension of bias against him.  An application was made by the third respondent for the judge to recuse himself on that basis. The Judge refused the application.

There were two grounds in the application, firstly that the judge had predetermined the issues, and secondly, that certain comments made by the judge at first instance were described by the third respondent (in his grounds of appeal) as “… would cause a fair-minded and informed observer to conclude that there is a real possibility that the learned judge was (whether or not consciously) mocking the third respondent for his status as a Sheikh and/or his Saudi nationality and/or his Arab ethnic origins and/or his Muslim faith.”

In the Court of Appeal, Lord Justice Ward (with whom Lord Justices Mummery and Wilson agreed) commenced his judgment with the foreboding statement: “This is a singularly unsatisfactory, unfortunate and embarrassing matter.” The appeal was allowed on the second ground.

In rejecting the first ground, Lord Justice Ward found:4  “This judge had already had to deal with this matter on many occasions for many days and, in the light of the husband’s appalling forensic behaviour, no observer sitting at the back of his court could have been surprised that he had formed a “prima facie” view nor even that it was “a near conviction”. A fair-minded observer would know, however, that judges are trained to have an open mind and that judges frequently do change their minds during the course of any hearing. The business of this court would not be done if we were to recuse ourselves for entering the court having formed a preliminary view of the prospects of success of the appeal before us. Singer J. did express himself in strong terms and he would have been wiser to have kept his thoughts to himself. But there are times in any trial and in any pre-trial review where a judge is entitled to express a preliminary view and I do not see that Singer J. has over-stepped the mark in the particular circumstances of this case. The husband has behaved disgracefully yet he, noticeably, has not joined in the application for the judge to recuse himself. The Sheikh, who allies himself with the husband, cannot complain too vociferously if some of the judge’s wholly justifiable ire rubs off on him.”

With respect to the second ground however, the Court of Appeal found certain comments of the Judge as being unacceptable. Lord Justice Ward stated:5

“…It will be recalled that Mr Randall [QC for the applicant/third respondent] invited us to read extracts 1-4 with brackets inserted around the offending words. This was an utterly compelling piece of advocacy. There is a world of difference between saying: “If he chose to depart never to be seen again” and gratuitously adding “if he chose to depart on his flying carpet never to be seen again”. Likewise it would have been unexceptional to say that the Sheikh would be present “to see that no stone is unturned”, without glibly adding “every grain of sand is sifted“. The judge could well make the point that he did not know what lines of communication were available to Saudi Arabia or wherever the Sheikh may be yet once again there was no need for the uncalled-for addition of “at this I think relatively fast-free time of the year“. Without the additional words, the judge was making fair points but the incidental injections of sarcasm were quite unwarranted.

The third example is the worst. Mr Cayford [QC for Mrs El-Farargy] quite clearly did not understand why the judge had interrupted his submission that the Sheikh’s case was not entirely clear by commenting that the affidavit was “a bit gelatinous“. He did not understand the interruption because he would not have appreciated that, as Mr Randall correctly submits, the judge was setting himself up to deliver the punch line to his joke, “a bit like Turkish Delight“.

[brackets added]

Not surprisingly a test has been enunciated in the United Kingdom along similar lines to that applied by the High Court in Australia. In a recent House of Lords decision of R v Abroikof6, Lord Bingham of Cornhill observed “the accepted test is that laid down in Porter v Magill [2001] UKHL 67, [2002] 2 AC 357 at para 103: “whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased“.

In the El-Farargy case, the proceedings had been set down for a five week trial to commence in October 2007. After considering the background of the proceedings and its painfully slow progress, Lord Justice Ward stated “I was aghast at the prospect that allowing the appeal would have the effect of putting the hearing back another year….” His Honour then went on to provide an insight as to a number of behind the scenes discussions that took place following the making of the application for recusal: 7

“…Because I was so appalled by this prospect, I spoke to the President [of the Family Division] very shortly before he departed on holiday. I have his permission to disclose what happened. Singer J. was rightly concerned about the application and the effect it would have on the fixture. Very properly he consulted the Head of his Division to discuss the predicament and see whether anything could be done about the listing of the final hearing before another judge of the Division but the emphatic information given by the then Clerk of the Rules was that no other judge could be found to replace him. If he could not hear it, the hearing would have to be vacated and further delay would ensue. I mention this in fairness to the judge because, if the inference could not have been drawn from paragraphs 6 and 7 of his judgment which I have already cited, it surely now can be drawn that he would (and, this is my guess, would willingly) have released the case to another judge of the Division if that could have been arranged. That not being possible, he had to get on with deciding the application and making up his own mind on the merits as he saw them. He was right to make it plain that listing difficulties could have no impact on the outcome.”

[brackets added]

The El-Farargy case is a further example of how an allegation of apparent bias can place a judge in a difficult position of having to rule upon their own conduct. The Judge in that case, not being able to refer the application to a colleague for determination due to a very busy Court, was placed in the unenviable position of having to decide on his own conduct in circumstances when he knew that substantial delay (along with associated cost) to the proceedings was an inevitable result of such an application being granted.

With respect, the background of delay in the proceedings leading up to the El-Farargy case, perhaps encouraged the Judge, borne out of frustration, to make a number of regrettable comments, whilst being cloaked in the veil of humour (excuse the pun).

On a separate issue however, the application for recusal in El-Farargy would most likely have failed in Australia. In El-Farargy the Judge’s decision not to recuse himself, would in Australia, of itself, be found not to be a judgment or order that could properly be the subject of an appeal.8 A recent decision of the NSW Court of Appeal in Jae Kyung Lee v Bob Chae-Sang Char & Ors9 followed the High Court decision in The Queen v Watson; ex parte Armstrong, and rejected an application to disqualify a judge for apprehended bias on that basis. In Australia, the third respondent in El-Farargy could have sought such relief as a ground in his appeal, by raising it as the first ground.10

Judicial Humour

Lord Justice Ward, whilst expressing11 his “belief that the injection of a little humour lightens the load of high emotion that so often attends litigation”, continued however “I fully appreciate the conventional view that jokes are a bad thing.  Of course they are when they are bad jokes – and I am sure I have myself often erred and committed that heinous judicial sin. Singer J. certainly erred in this case. These, I regret to say, were not just bad jokes: they were thoroughly bad jokes”.

On the topic of courtroom humour, the Chief Justice of Australia, the Honourable AM Gleeson AC12 in an extra-judicial speech, commented on “what might generously be described as judicial humour”:

“Some judges, out of personal good nature, or out of a desire to break the tension that can develop in a courtroom, occasionally feel it appropriate to treat a captive audience to a display of wit. Sometimes this is appreciated by the audience, but sometimes it is not. When it is not the consequences can be very unfortunate. Judges and legal practitioners may underestimate the seriousness which litigants attach to legal proceedings, and they can become insensitive to the misunderstandings which might arise if the judge appears to be taking the occasion lightly or, even worse, if the judge appears to be making fun of someone involved in the case. Without wishing to appear to be a killjoy, I would caution against giving too much scope to your natural humour or high spirits when presiding in a courtroom. Most litigants and witnesses do not find court cases at all funny. In almost ten years of dealing with complaints against judicial officers to the Judicial Commission of New South Wales I have seen many cases where flippant behaviour has caused unintended but deep offence.”   

The Guide to Judicial Conduct – Handling an application for recusal

In a “postscript” to his judgment in the El-Farargy case, Lord Justice Ward laments as to the increasing number of applications for recusal arising from apprehended bias and suggests how a Judge might best respond:

“It is an embarrassment to our administration of justice that recusal applications, once almost unheard of, are now so frequently coming to this Court in ways that do none of us any good. It is, however, right that they should. The procedure for doing so is, however, concerning. It is invidious for a judge to sit in judgment on his own conduct in a case like this but in many cases there will be no option but that the trial judge deal with it himself or herself. If circumstances permit it, I would urge that first an informal approach be made to the judge, for example by letter, making the complaint and inviting recusal. Whilst judges must heed the exhortation in Locabail13 not to yield to a tenuous or frivolous objection, one can with honour totally deny the complaint but still pass the case to a colleague. If a judge does not feel able to do so, then it may be preferable, if it is possible to arrange it, to have another judge take the decision, hard though it is to sit in judgment of one’s colleague, for where the appearance of justice is at stake, it is better that justice be done independently by another rather than require the judge to sit in judgment of his own behaviour.”

In Australia steps have been taken to formulate a process in order to assist Judges when responding to an application for recusal. The Guide to Judicial Conduct states at chapter 1.1 that its purpose is, inter alia, to “give practical guidance to members of the Australian judiciary at all levels….Importantly, this publication seeks to be positive and constructive, and to indicate how particular situations might best be handled…”.14

After considering various circumstances when an apprehension of bias may be founded, the Guide to Judicial Conduct refers to the High Court’s comments in Ebner:15    

“The application of these principles, and the making of a decision whenever issues of possible bias are raised, call for a good deal of care and common sense. It is useful to bear in mind the remarks of Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner at [20]:

This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.”

The Guide to Judicial Conduct then sets out the following procedure for when an application for recusal is made:16

“Disqualification procedure

(a)     If a judge considers that disqualification is required, the judge should so decide. Prior consultation with judicial colleagues is permissible and may be helpful in reaching such a decision. The decision should be made at the earliest opportunity.

(b)    In cases of uncertainty where the judge is aware of circumstances that may warrant disqualification, the judge should raise the matter at the earliest opportunity with:

(i) The head of the jurisdiction;

(ii) The person in charge of listing;

(iii) The parties or their legal advisers;

not necessarily personally, but using the court’s usual methods of communication.

(c)     Disqualification is for the judge to decide in the light of any objection, but trivial objections are to be discouraged.

(d)     It will generally be appropriate in cases of uncertainty for the judge to hear submissions on behalf of the parties and that should be done in open court.

(e)     The judge should be mindful of circumstances that might not be known to the parties but might require the judge not to sit, and of the possibility of the parties raising relevant matters of which the judge may not be aware. It is not appropriate for a judge to be questioned by parties or their advisers.

(f)     If the judge decides to sit, the reasons for that decision should be recorded in open court. So should the disclosure of all relevant circumstances.

(g)     Consent of the parties is relevant but not compelling in reaching a decision to sit. The judge should avoid putting the parties in a situation in which it might appear that their consent is sought to cure a ground of disqualification. Even where the parties would consent to the judge sitting, if the judge, on balance, considers that disqualification is the proper course, the judge should so act.

(h)     Even if the judge considers no reasonable ground of disqualification exists, it is prudent to disclose any matter that might possibly be the subject of complaint, not to obtain consent to the judge sitting, but to ascertain whether, contrary to the judge’s own view, there is any objection.

(i)     The judge has a duty to try cases in the judge’s list, and should recognize that disqualification places a burden on the judge’s colleagues or may occasion delay to the parties if another judge is not available.

There may be cases in which other judges are also disqualified or are not available, and necessity may tilt the balance in favour of sitting even though there may be arguable grounds in favour of disqualification. 3.6 Summary

If these guidelines do not lead the judge to a conclusion, there is a large volume of case law and academic writing that may assist the judge, but in the end the decision to sit or not to sit must rest comfortably with the judicial conscience.”

Conclusion

Whilst there is, as in the El-Farargy case, some degree of judicial lament at the increasing occurrence of allegations of apparent judicial bias, there is no doubt that the preparedness to entertain such applications (at least those with some merit) clearly exemplifies judicial impartiality to the community.   

In a further extra-judicial speech, Chief Justice Gleeson considered the positive aspects of a society in which individuals have an ever increasing awareness of their rights17:

“Modern lawyers, litigants, and witnesses, and the public generally, are much more ready to criticise judges whose behaviour departs from appropriate standards of civility and judicial detachment. This is a good thing. If judges behave inappropriately, they should be criticised. Of course, on occasions, some judges are exposed to wrongheaded, extravagant, or unfair criticism. That is the price that has to be paid to remind all judges of the necessity to conduct themselves with dignity and decorum.”

In a paper entitled “Judicial Qualities and Corruptive Good Customs”, published in “Justice According to the Law: A Festschrift for the Honourable Mr Justice BH McPherson CBE”18, Justice Dowsett of the Federal Court of Australia wrote:

“Some litigants-in-person have realized the benefit of the strategic allegation of apparent bias when they want adjournments or to escape sticky situations.  Very often, a judge who attempts to identify any valid point in a mass of patently unarguable points will afford ammunition for such an allegation.  The problem is not limited to self-represented litigants. Some practitioners have not been as careful as they should have been.  On occasions it has been difficult to avoid the conclusion that they have mounted allegations of perceived bias for tactical reasons, or at least have not been sufficiently industrious in seeking to dissuade their clients from instructing them to do so.  Justified and unjustified allegations of perceived bias cause great damage. Public confidence is a fickle thing.”    

As Justice Dowsett suggests, there is an obligation upon practitioners to properly advise their clients so as not to bring applications that are frivolous or based on ulterior motives. Circumstances may dictate the most appropriate course, however precedent, obiter dictum, extra-judicial and academic papers and publications such as the Guide to Judicial Conduct will provide learned guidance to all parties involved when attempting to work through the maze of conflicting issues that often attends such an application.   

I respectfully suggest that practitioners will be assisted by having regard to the Guide to Judicial Conduct should they find themselves having to consider making an application for recusal of a Judge for an apprehension of bias, or any other issue involving impartiality.  This in turn will assist the Court through what are often difficult circumstances.

John Meredith  

Footnotes

1. Johnson v Johnson (2000) 201 CLR 488 at 492 [11], per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. and   Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345 [6]-[8], in the joint reasons of Gleeson CJ, McHugh, Gummow and Hayne JJ.
2. Second edition.  The Guide was published for The Council of Chief Justices of Australia by the Australasian Institute of Judicial Administration Incorporated.
3. [2007] EWCA 1149 (15 November 2007) (“the El-Farargy case”).
4. At [26]
5. At [28] — [29]
6. [2007] UKHL 37 (17 October 2007)
7. At [19]
8. The Queen v Watson; ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, Barton v Walker [1979] 2 NSWLR 740. Relief pursuant to s.43 of the Judicial Review Act 1991 (Qld) is not available as the decision is obviously not of an “administrative character“.
9. [2008] NSWCA 13 (26 February 2008)
10. Antoun v The Queen (2006) 80 ALJR 487 at 499[2] per Gleeson CJ and Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd & Anor. [2006] HCA 55; (2006) 231 ALR 663; (2006) 81 ALJR 352 (6 December 2006).
11. At [30]
12. “The Role of the Judge and Becoming a Judge”, delivered at the National Judicial Orientation Programme, Sydney, 16 August 1998, http://www.hcourt.gov.au/speeches/cj/cj_njop.htm
13. Locabail (UK) Ltd v Bayfield Properties [1999] EWCA Civ 3004.
14. The web address for the Guide is:  http://www.aija.org.au/online/GuidetoJudicialConduct(2ndEd).pdf . I have been unable to locate any equivalent type of guideline for use by Judges in England and Wales. 
15. At page 11.
16. In paragraphs 3.5 and 3.6, at pages 15-16.
17. “The Role of the Judge and Becoming a Judge”, a speech delivered at the National Judicial Orientation Programme, Sydney, 16 August 1998.
18. Supreme Court Library, 2006, page 368, at page 380.