Wednesday, October 23, 2013

Reasonable apprehension of bias: MSI Developments Pty Ltd & Ors v National Australia Bank (Ruling No 1) [2013] VSC 551

The matter of MSI Developments Pty Ltd & Ors v National Australia Bank (Ruling No 1) [2013] VSC 551 was an application for Almond J to disqualify himself from a proceedings as His Honour was said to:
  • have shares in the defendant, the National Australia Bank ('NAB'), through his superannuation fund; and
  • have acted as a barrister for the NAB when His Honour was at the Bar.
In dismissing the application, His Honour set out the principles for disqualification for bias. These are as follows:
4 In Livesey v New South Wales Bar Association,[1] the High Court set out the relevant principle as follows:
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 and unprejudiced mind to the resolution of the question involved in it.[2]
5 In Ebner v Official Trustee in Bankruptcy,[3] the court described the principle and its application as follows:
the governing principle is that...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 (citations omitted)...
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.
Similarly, the bare identification of an “association” will not suffice to answer the relevant question.[4]
6 The test is objective and the hypothetical fair minded lay observer is not assumed to have a detailed knowledge of the law, or of the character and ability of a particular judge.[5]
His Honour noted:
  • when at the bar His Honour acted for NAB every two or three years and never had a general retainer; 
  • he did not recognise any names on the list of employees of the NAB who were to be called as witnesses in the proceeding; and
  • when dealing with the banks as counsel his dealings were primarily with solicitors acting for the bank.
In considering the 'fair-minded lay observer' His Honour said
13 In my view, a fair-minded lay observer would appreciate the following. First, that barristers who practice in commercial law are likely to have, from time to time, acted for banks. Secondly, that the nature of such associations in the practice of commercial law do not necessarily lead to associations which would divert a judge (who has previously acted as counsel for a bank) from deciding a case involving such a party on its merits. In the present circumstances, my view is that a fair-minded lay observer with a general understanding of the way barristers carry out their work would not reasonably apprehend that a judge might bring a partial or prejudiced mind to the resolution of the questions in this proceeding, including the assessment of matters such as the credit of bank witnesses.

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