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Court in the Act
21 January, 2010  
Butt out

Batty Tobacco thinks that a judge’s criticism of the “document retention” policy smacks of apprehended bias … Appeal judges divided on the thought process of the difficult to locate “fair minded lay observer”


In litigation initiated by now deceased lung cancer victim Donald Henry Laurie and carried on by his daughter Claudia, British American Tobacco Australia Services Ltd had a setback in its tireless trench warfare over the Orwellian “document retention” policy.

imageOn December 17 the NSW Court of Appeal rejected by 2-1 an application by Batty to have Judge James Curtis of the Dust Diseases Tribunal disqualify himself from further hearing the case on the ground of apprehended bias.

It was another victory in the tobacco wars for Hollywood Pete Semmler QC (seen here).

Batty argued Curtis had been persuaded in an earlier case brought by ex-smoker Alan Mowbray that it had implemented a fraudulent document destruction policy to deny potential litigants evidence that showed the company knew smoking caused lung cancer.

Those findings, BATAS argued, meant that “a fair-minded lay observer might reasonably apprehend that Judge Curtis might not bring an impartial and unprejudiced mind” to the resolution of the same allegations pleaded by Laurie.

This is the High Court-approved “two mights test”, which can be found in Livesey v NSW Bar Association and Johnson v Johnson.

Judge Curtis had refused to recuse himself, saying it was clear his findings in the Mowbray case were interlocutory – made only to determine if the documents were legally privileged or not.

imageThe findings, he said, were based on the “present state of the evidence” of whistle-blower Fred Gulson (pic) and others.

Curtis said he did not express his conclusions on fraudulent document destruction “in terms of finality” and quoted numerous examples of himself in the Mowbray decision hedging and qualifying his findings.

The Court of Appeal split, with Murray Tobias and John Basten backing Laurie, the respondent, and thereby Judge Curtis.

James Allsop P sniffed the breeze and detected a whiff of apprehended bias.

There was no dispute on the law to be applied.

The divergence of opinion centred on that rather flexible legal tool – the “fair-minded lay observer”.

It was a case of one judge’s open-minded lay observer being another’s overly suspicious one.

imageThe majority thought that “a fair and proper reading of his Honour’s reasons in Mowbray would positively indicate to that observer that his Honour had formed no fixed or final view”.

Allsop’s (pic) lay observer was a different type altogether.

In a judgment of a few short paragraphs he said Curtis’ findings were neither provisional nor qualified:

“His Honour was ‘persuaded’; this was an actual persuasion of the mind that the applicant was sufficiently morally delinquent to have its actions characterised as dishonest and fraudulent.

He went on:

“The problem lies in the character and gravity of the finding and the actual persuasion of the mind of the trial judge of the moral delinquency of the party to a degree to warrant the expressed conclusion of fraud. In my view, a fair-minded lay observer might reasonably think that a trial judge might not be able to eradicate the effect of this conclusion from his or her mind.”

He hastened to mention that, “comity and respect for Curtis J encourage me to make clear, that there is no criticism of his Honour in the view to which I have come”.

The High Court authorities seem to support a range of positions.

If a judge expressed clear views on something, it might be grounds for apprehended bias.

On the other hand, a previous decision by a judicial officer, which generates an expectation that he or she will decide something adversely to a party, should not of itself lead to an inference of bias.

Basten, from the majority, pointed out the danger of undermining confidence in the justice system if this test is not applied with care.

“There is a real risk that the applicant is seen to be manipulating the system, not to avoid a prejudiced mind, but to avoid an adverse result based on a fair and unchallenged opinion, established by reference to the facts and circumstances then revealed in the evidence, and which may with proper consistency be maintained.”

Surely it’s no bad thing to deploy judges familiar with similar issues in cases that share common facts.

They will necessarily have made interim findings of fact along the way, and surely that is as it should be?

Allsop’s approach might suggest a fresh judge will almost always be required when the same facts are in issue.

* * *

The High Court authority on this point contains some engaging pointers on the characteristics of the fair-minded lay observer.

Per Kirby in Johnson:

* It must be remembered that, in contemporary Australia, the fictitious bystander is not necessarily a man nor necessarily of European ethnicity or other majority traits.

* Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided.

* A reasonable member of the public is neither complacent nor unduly sensitive or suspicious.

Has such a creature been discovered yet?

Jonathan Gadir reporting