14 May 2019

Profiling and Apprehended Bias

In Gaynor v Local Court of NSW and Ors [2019] NSWSC 516 the Court has considered the plaintiff's application that the judge should disqualify himself because of apprehended bias on the basis of the alleged political views of the judge’s tipstaff.

The plaintiff  - previously noted at eg here - argued that the alleged political views of the tipstaff would cause an independent observer to believe that the judge could not or might not bring an independent mind to the task of deciding the case. The application was dismissed, with the Court noting
An alarming and troubling aspect of the present application is the insidious way in which the personal interests and activities of a member of my court staff have become thrust, without any forewarning, knowledge or permission, into the public arena of these proceedings in the guise of what is alleged to be a concern that there is or may be a reasonable apprehension that I may not be impartial. Some members of the community might struggle to make that connection. I count myself among people in that hypothetical group. The significance of anything revealed by the evidence in this case to any issue I have to determine is about as high as it would be if I were deciding a case dealing with the water allocation example I gave earlier and one of the parties discovered that my tipstaff had done work experience on a cotton farm in the basin or was an enthusiastic supporter of downstream wetlands integrity.
The judgment states
Bernard Gaynor and Garry Burns have been combatants opposed to each other in contentious and acrimonious litigation for a number of years. Their disputes have reached the NSW Civil and Administrative Tribunal (Burns v Gaynor [2015] NSWCATAD 211), the Court of Appeal (Burns v Corbett; Gaynor v Burns (2017) 96 NSWLR 247; [2017] NSWCA 3) and even the High Court of Australia (Burns v Corbett; Burns v Gaynor (2018) 92 ALJR 423; [2018] HCA 15). These proceedings are but a further manifestation of this litigious cavalcade. 
Mr Gaynor lives in Queensland. He earns a living as what he describes as an independent conservative blogger focusing on issues regarding national security, politics and the defence of the traditional family unit and western Christian civilisation and values. Mr Burns is a self-described gay rights activist who has uploaded material to his own website for public dissemination. It is fair to say that the views of Mr Gaynor and Mr Burns on several issues of public interest do not closely correspond and are effectively diametrically opposed. 
By his amended summons filed on 10 August 2018, Mr Gaynor seeks a series of orders, including but not limited to a declaration that all proceedings commenced by Mr Burns against him in the Local Court are void and of no effect because no lawful application or appeal has been made by Mr Burns under s 34B(2)(a) of the Civil and Administrative Tribunal Act 2013 or because the Local Court lacks jurisdiction under s 34 of the Local Court Act 2007 or s 49ZS and s 49ZT of the Anti-Discrimination Act 1977. This dispute was listed for hearing to commence before me on 2 May 2019. In the events that occurred, I proceeded to hear the matter and to reserve my decision. 
However, before that happened and even before the hearing proper commenced, Mr P E King of counsel for Mr Gaynor made an oral application without notice that I should disqualify myself upon the basis of apprehended bias. The application was efficiently argued in appropriate detail and can only presently be understood by reference to the several matters deposed to by Mr Gaynor in his affidavit sworn 2 May 2019 that was read without objection in support of the application. ... 
Gaynor said this:
“42. I believe that [Harrison J’s tipstaff] has actively campaigned for ideas that are diametrically opposed to the ideas that I support as a practising Catholic.
43. I believe that the evidence shows that [Harrison J’s tipstaff] was selected as a tipstaff in a process conducted directly by his Honour Justice Harrison. 
44. I believe that [Harrison J’s tipstaff] is linked to the third defendant through his participation with the Aids Council of NSW (ACON) and Wear it Purple and the third defendant’s leadership of an organisation that consults with the Aids Council of NSW (ACON) and promotes Wear it Purple. 
45. The fourth defendant’s complaints include complaints about my views on homosexual activism, homosexual activist organisations, health impacts of homosexual activities and the Sydney Gay and Lesbian Mardi Gras. 
46. I believe that the evidence shows that [Harrison J’s tipstaff] has participated in homosexual activism and been a member of homosexual activist organisations and also attended and supported the Sydney Gay and Lesbian Mardi Gras. 
47. I believe that the evidence shows that [Harrison J’s tipstaff] sought to downplay the health risks of homosexual activity and to argue that laws criminalising the knowing transmission of HIV should be repealed. 
48. I believe that the evidence shows that [Harrison J’s tipstaff] invited the fourth respondent to file submissions shortly before this hearing, despite the fact that the fourth respondent has filed a submitting appearance. 
49. I believe that [Harrison J’s tipstaff’s] background and activities raises the prospect of actual and/or perceived bias in relation to his duties as Tipstaff to his Honour, Justice Harrison in this matter. 
50. I believe that [Harrison J’s tipstaff’s] position as Tipstaff to his Honour, raises perceived bias in relation to his Honour’s ability to preside over this hearing.”
Mr Gaynor did not rely on any further evidence in support of his application.
Gaynor's counsel, Mr King
contended that this material would satisfy the well-known test for the identification of apprehended bias so clearly set forth in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 as follows: 
“[7] The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror. 
[8] The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. 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.”
The Court notes
A case of some interest, to which Mr King did not refer me, is Hurley v McDonald’s Australia Ltd [2000] FCA 961. In that case, the offer of employment to a judge’s associate by a firm of solicitors that represented a party in large commercial litigation before the judge was found not to lead to a conclusion that there may have been a reasonable perception that the applicant had been deprived of her entitlement to a fair trial. 
As said by Dowsett J: 
“[87] I doubt very much whether any reasonable person would expect that the former associate had significant confidential information relevant to this case or would be likely to communicate it if he did. Nonetheless, the risk of an unreasonable suspicion may have justified some attempt to protect the integrity of such a long trial...A fair assessment of all of the circumstances... would, in my view, lead inevitably to the conclusion that there was no basis to suspect that there had been any unfairness, let alone a miscarriage of justice.” 
The transcript will reveal that when Mr King made his application, and after I had had an opportunity to read Mr Gaynor ’s affidavit, I asked Mr King, in terms, what any of this had to do with me. Mr King’s response was as follows:
“We have a situation where a member of your Honour’s personal staff, a gay rights activist, has sent unsolicited emails, apparently on behalf of the Court, in a way which is not normal. One would have thought that such issues would have been done [sic] by direction. They are unnecessary because it was clear that Justice Bellew had made clear and certain directions, including making an order for costs against the defendant, about the following submissions, which in ours were clearly complete. So there is an impression of ‘Is this all you’ve got’.”
I was not by my remark intending to depreciate the debate or the understandable importance to Mr Gaynor of his desire for, and his entitlement to, a fair trial. I was, on the contrary, genuinely confused about the possibility of there being any discernible or suspected connection between the evidence relied upon on the one hand and the existence of a perception of apprehended bias on my part on the other. Although Mr King’s concerns were ultimately explained, they appeared also to be based upon the suggestion that the inquiry was improper because the parties concerned had entered submitting appearances. That fact had not been communicated to me before the inquiry was made. I am in any event unable to understand the relationship, if any, between the request made by my tipstaff with my authority in those terms and any apprehension of bias. It was in that context that I said this to Mr King at the time:
“I don’t mean to interrupt you but could I do so by saying I have only been in this job for 12 or so years but it has become quite a regular occurrence when matters are listed for hearing and as the hearing approaches before [sic, for] the Court, either through an associate or a tipstaff, to enquire of parties whether or not they propose to make submissions or whether they want to update their submissions. We sometimes have to come to Court and have to deal with matters of which we have not been given any notice. On one view the present application is an example of that.”
The personal views of my tipstaves are largely unknown to me, except to the extent that they are revealed in the context of the relationship I have with them as my assistant in chambers. My current tipstaff’s employment was neither influenced by nor dependent upon his social or political views. It was, in contrast, significantly informed by his outstanding academic and employment credentials. 
However, even assuming it were otherwise, and I was intimately acquainted with his views and opinions on everything, I fail to understand what is said by Mr King to be the connection between any of my tipstaff’s views and the perception that I might not bring an independent and unbiased mind to the resolution of the dispute in this case. In my limited experience, cases are decided by judges, not their staff. The fact that a judge may engage his or her tipstaff in a vigorous and lively debate about issues that arise in cases heard by the judge is a circumstance far removed from instances where that discussion is influenced by a tangible connection with, or potential interest that the tipstaff might have in, the outcome of the proceedings.
The difficulty with Mr King’s submissions is that they fail to identify, except perhaps by innuendo, how an independent observer might construe the evidence in Mr Gaynor ’s affidavit in a way that would cause him or her to feel that I was possibly unable, or that there was even an appearance that I was possibly unable, to bring an impartial mind to the resolution of the dispute. As it was put in Antoun v R (2006) 224 ALR 51; [2006] HCA 2:
“[83] It should be noted that the test as stated [in Ebner] emphasises that a possibility, that is relevantly to say, the appearance of a possibility of an absence of an impartial mind on the part of the judge, may lead to disqualification. Their Honours also make it clear that the test does not involve, or require an inquiry into the facts or matters which brought the apprehended state of mind of the judge to one of apparent bias. It follows that the fact that the case may not only at the time, but also in retrospect, seem to be a strong one, indeed a very strong one, does not absolve the judge from giving it a fair hearing, and attending carefully and open-mindedly to the submissions of the parties made at appropriate times.”
It seems to be uncontroversial as a factual matter that Mr Gaynor and Mr Burns have strongly held and strongly expressed views on issues of gay rights, and associated issues such as same sex marriage. It is important as well to observe that these proceedings are not concerned, if indeed any similarly constituted proceedings could ever be concerned, with an assessment of the “correctness” or “appropriateness” of these competing views or with the expression by me of a preference for either the views of Mr Gaynor or Mr Burns. The only relevance of their respective positions on such matters is that they have been the catalyst for Mr Burns’ complaints about Mr Gaynor that have found their way to the Local Court of New South Wales in the fashion earlier described. Put another way, there is no necessary connection between the subject matter of Mr Burns’ complaints to which Mr Gaynor takes exception on the one hand and the resolution of the jurisdictional and constitutional issues that they have generated on the other hand. The jurisdictional and constitutional issues could just as easily have been generated by a dispute between a resident of Queensland and a resident of New South Wales over water licences and allocations in the Murray Darling Basin.  ...
In considering content on Facebook - an instance of profiling litigants  on social media platforms - the Court stated
Annexure “BG G” is described by Mr Gaynor as “a copy of a Facebook post made by [Fagan J’s tipstaff] on 31 October 2018”. Mr Gaynor did not depose to any evidence that my tipstaff “liked”, commented upon, or endorsed that post in any way. I am unable to understand the relevance of a Facebook post made by another judge’s tipstaff to the application that I recuse myself because of my tipstaff’s alleged political views. Finally, Mr Gaynor deposed to the abstract of my tipstaff’s article published in 2019 in the Alternative Law Journal entitled “Criminalising Infection: Questioning the assumption that transmitting HIV constitutes grievous bodily harm”. The abstract, attached as annexure “BG L” to Mr Gaynor ’s affidavit, states:
“This article considers whether, in light of medical advances in the treatment of human immunodeficiency virus, the intentional or reckless transmission of human immunodeficiency virus should constitute grievous bodily harm in New South Wales law. The author argues that as a result of the major medical advances in the treatment of human immunodeficiency virus, it should no longer be simply assumed that human immunodeficiency virus is grievous. The article also considers a related question of statutory interpretation, namely how should the word ‘disease’ in s 4(1)(c) of the Crimes Act 1900 (NSW), which provides that grievous bodily harm includes ‘a grievous bodily disease’, be interpreted”.
Mr Gaynor relies upon the article as evidence for the proposition that my tipstaff has argued “that laws criminalising the knowing transmission of HIV should be repealed”. My tipstaff’s article argues no such thing. On the contrary, as the abstract reveals, the article argues that “as a result of the major medical advances in the treatment of HIV, it should no longer be simply assumed that HIV is grievous”. The article also considers a question of statutory construction. I am unable to see how an article about the criminal law of assault and HIV has any relevance to establishing my tipstaff’s political views or in turn how those alleged political views about HIV have anything to do with an apprehension of bias.
The authorities make it clear that the wisdom that informs this area of discourse is derived from an understandable and commendable insistence upon judicial impartiality and independence. Except in cases where actual bias is alleged, the appearance of the possibility of the absence of an impartial mind is enough because it may lead to a perception that the result might not be fair, not that it is actually unfair. In the present case, without feigned ingenuousness, I am unable to see how anything upon which Mr Gaynor wishes to rely in this application could raise or support the reasonable perception of an appearance that I could not or might not bring an independent or impartial mind to the task of deciding this case.