Wednesday, September 7, 2011

Reasonable apprehension of bias - Bahonko v Moorfields Community [2011] VSCA 259

The matter of Bahonko v Moorfields Community & Ors [2011] VSCA 259 (Bahonko) was an appeal in the Court of Appeal before Buchanan, Redlich and Mandie JJA. The appeal was from the dismissal of the plaintiff's proceedings in the County Court of Victoria on the basis that the trial judge is disqualified by reason of apprehended bias on the basis of views expressed in a Law Reform Committee submission concerning vexatious litigants.

I have included a case discussion and extracts below.

The trial in the County Court of Victoria was a claim for loss and damage under the Accident Compensation Act 1985 (Vic) for mental and physical injury in the course of employment at a nursing home. The trial judge dismissed the proceeding and said of the plaintiff (quoted at [6]):
I gained the strong impression that she had developed a belief that she was the unhappy victim of an extraordinary and wide-ranging conspiracy by Government, persons in Government, Victorian WorkCover Authority, the Transport Accident Commission, WorkSafe, the defendant and its employees and the solicitors for the defendants and counsel engaged to act for the defendants.
A few days before the commencement of the trial, the trial judge made a submission to the Law Reform Committee concerning vexatious litigants. The trial judge used the proceedings before him in Bahonko as an example of conducting proceedings vexatiously. Extracts of the submission are set out at [13]:
13 His Honour said that the statement of claim drawn by the appellant, ‘did not plead a cause of action against the tortfeasor, but was a long and turgid piece of writing ... ‘. The judge described some of the features of the way in which the appellant prosecuted the litigation, including ‘making repeated allegations ... which had no foundation’, ‘applying for interlocutory relief repeatedly which was almost always absurd’, and making ‘applications to disqualify judges who this litigant perceived not to be sympathetic to this litigant’s cause’. His Honour said ‘none of the interlocutory applications [made by the appellant] has had any merit and should not have been made.’ His Honour said that the appellant was accorded a degree of courtesy and latitude ‘because it was easier to appease this litigant where it was quite apparent that it was impossible to have this litigant understand how to conduct litigation in a conventional way.’
The Court of Appeal set out the principle of apprehended bias at [14] and [15]:

14 The principle of apprehended bias was stated by the Court in Livesey v New South Wales Bar Association as:
That principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial unprejudiced mind to the resolution of the question involved in it.
15 In Ebner v Official Trustee in Bankruptcy the Court described the application of the principle of apprehension of bias in the following terms:
Its application requires two steps. First, it requires the identification of what it is said might lead a judge ... 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.
Counsel for the respondent submitted that the submission to the Law Reform Committee did not disclose a prejudgment of the plaintiff's entitlement to compensation. The Court of Appeal noted at [18] that the principle from Ebner was '... a judge is disqualified 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. (Emphasis added)'

The Court of Appeal considered that although the trial judge had not expressed any views as to the plaintiff's entitlement to compensation, by reason of his submission to the Law Reform Committee the trial judge had formed views as to the mental condition of the plaintiff and as to matters likely to affect the credibility and accuracy of her evidence. The Court of Appeal considered that the plaintiff's mental state and her credibility were critical issues in the proceeding and the trial judge prejudged the plaintiff's credit and mental condition to her disadvantage. Importantly, the Court of Appeal said at [19] that 'it is stating the principle of apprehended bias too narrowly to say that the possibly of prejudgment applies only to the ultimate conclusion of liability.'

Bahonko demonstrates the breadth of the principle of apprehended bias. A judge does not have to express prejudged views on liability for there to be apprehended bias: if a judge appears to have prejudged issues of credibility or competence in a matter, then this could also disqualify the judge from hearing the matter.

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