ITS NOT WHAT THE JUDGE SAID BUT THE WAY THAT THEY SAID IT: DISCUSSIONS FROM DOWN UNDER

The Supreme Court of South Australia made some interesting observations about the interaction between the bench and the bar in Stone -v- Moore [2015] SASC 46 (24th March 2015). In particular what does the appellate court do when a complaint is made about the way a judge said something rather than what was said.  I write about it here because I do not know of an equivalent case in the UK – where initial remarks by a judge were said to constitute bias and where complaints were made about the tone of the judge’s remarks and not just their content. It is interesting to see the way that the Australian courts deal with this.

THE CASE

The claimant was bringing an action for defamation for something said during teh course of a family gathering. At the outset of the case the judge made a number of observations.

3. It took almost two years before the matter found its way to trial. A final pre-trial directions hearing was held on 30 October 2014. The trial commenced four days later on 3 November 2014. During the 30 October hearing at which the appellant was present, the Judge who was to hear the trial directed certain statements to counsel for the appellant, Mr Heywood-Smith QC, and counsel for the respondent, Mr Short.[2]

For the moment I’ve only read the pleadings and I’ve got to say, Mr Heywood-Smith, as things currently appear to be, and obviously enough, this is subject to what might come out in the evidence, but my tentative, and I stress it’s my tentative view, is that even if you were to succeed I just cannot for the moment see how you’d be entitled to any more than relatively nominal[3] damages, and again as presently advised, Mr Short, and I haven’t read terribly many authorities on the topic, I’m having difficulty in seeing how qualified privilege can extend as far as you obviously contend that it does.

4. On the morning of 3 November, the first day of trial, the Judge made further observations which lead to an extended exchange with the appellant’s counsel.[4] Mr Douglas was now acting on behalf of the respondent, with Mr Heywood-Smith still acting on behalf of the appellant who was again present in court.
5. The Judge commenced by addressing Mr Heywood-Smith as to the basis of the appellant’s claim.

His Honour: As far as the joint statement of issues[5] is concerned, I’ve had a look at it. Obviously enough, I haven’t had the opportunity to analyse it in any great detail, but, Mr Heywood-Smith, I feel bound to say that it seems to me, subject to any evidence that’s called and submissions that I might ultimately accept, that you do face some very significant difficulties and I repeat what I said about the difficulty I’m seeing in how, as presently advised – and I stress this is only a tentative view – you would ever be entitled to anything more than nominal damages.
I must say, at first glance, what Mr Douglas says at para.3 of the joint statement of issues for determination strikes me as having considerable force and obviously enough, I don’t need to tell you about costs implications.
Mr Heywood-Smith: No, I’m grateful for your Honour’s intimation, it enables me to concentrate on those issues in opening, which I’ll commence now.
His Honour: If you want some time to have a think about it, I’m quite happy to give it to you.
Mr Heywood-Smith: I think your Honour needs to hear the opening. Obviously my client does not come here lightly.
His Honour: I would sincerely hope not.
Mr Heywood-Smith: Your Honour will hear from the plaintiff about a conversation that she had with her son the day after he’d had a conversation with his uncle in which matters were stated that she had never heard of in her life, no awareness of, allegations of a backyard abortion, which at the relevant time was a criminal offence, as your Honour will no doubt recall, matters put to –
His Honour: Often occurring in the most mitigating of circumstances.

6. The Judge went on to canvas the possibility of the matter being resolved by way of an apology from the respondent.

Mr Heywood-Smith: Certainly, but matters put to the dearest people in her life; her son and daughter-in-law and then followed by an email to her daughter-in-law, effectively repeating and restating the matters. She’ll tell your Honour that she’s had no apology from her brother throughout the whole of the proceedings, that the brother has filed a defence which did not to justify the imputations and she’ll tell your Honour that in those circumstances, she can only assume –
His Honour: Actually, I would have thought the apology in other sections of the Defamation Act should have been sharply in focus in this case from the point of view of both parties.
Mr Heywood-Smith: My client doesn’t see anything to apologise for, but there’s been no apology.
His Honour: I mean in the sense of perhaps seeking a summary address (sic: redress) by inviting the defendant to engage those sections.
Mr Heywood-Smith: Absolutely. Those matters will be addressed. So your Honour will note –
His Honour: It might not be a bad idea to address them now, it seems to me, Mr Heywood-Smith.
Mr Heywood-Smith That’s a matter for the defendant we would have thought.
His Honour: If Mr Douglas wants to address the relevant sections now, I’m quite happy to give him the time to do so and I understand what you’ve just been saying about the effect of this conversation, but to my current way of thinking, I still have difficulty in seeing that it can get you where you want to go.

7. The Judge and counsel then had an exchange concerning the availability of damages in defamation claims which developed into the following discussion concerning which party had initiated the proceedings.

Mr Heywood-Smith: If your Honour turns to p.8, your Honour will see there’s a list there of cases that is related to the table in Sexton that might be of some guide. The significant thing here is, as I’ve indicated, the failure of the defendant to apologise, not only initially, but at the time when he files a defence in which it is made apparent that he is not seeking to justify the imputations and the message that that can only send to the plaintiff is ‘Well, I can’t justify it, but I believe it and I’m not going to apologise’. That can only aggravate the damages.
This is a case where the plaintiff is not seeking a large sum of damages, indeed to the contrary, but unfortunately she has been brought to this court and is obliged to proceed.
His Honour: She initiated the proceedings, Mr Heywood-Smith.
Mr Heywood-Smith: With respect, the defendant initiated the proceedings by making the publication and –
His Honour: He might have made a publication, that’s a matter for evidence, though there is an admission of some publication, but at the end of the day, it’s your client that filed the statement of claim.
Mr Heywood-Smith: That’s so and short of –
His Honour: The fact that you’re saying you’re not seeking a huge amount of damages brings part 3 of the Defamation Act[6]even more firmly into focus, it seems to me. The more you talk, the more you make me think that this case is plainly capable of resolution.
Mr Heywood-Smith: We’ve heard what your Honour says, I’m happy for your Honour to adjourn momentarily. I’m most concerned that the matter move forward if it has to go forward.
His Honour: There’s no question of that, Mr Heywood-Smith. For the moment I’ll adjourn for half an hour. If you want longer than that, just get in touch with my associate and both parties can have as much time as they think they need.I’ll adjourn until 11.

THE APPLICATION FOR THE JUDGE TO RECUSE HIMSELF

As a result of that interchange the plaintiff (and it remains “plaintiff” in Australia) made an application that the judge recuse himself. When this was refused the claimant appealed.

THE FINDING IN THE SUPREME COURT

The Supreme Court found that there was no right of appeal. However the Court went on to consider the position in relation to bias. The test is whether a reasonable bystander would have a reasonable apprehension of bias. However early interaction between the bar and bench is not indicative of bias.

62. In a case such as the present, any reasonable apprehension of bias must be “firmly established” in the sense explained in BATAS v Laurie by French CJ.[80]
62. The fact that a judge has expressed a strongly worded view at the outset of a hearing does not prevent characterisation of that view as provisional. In such a case the reasonable apprehension of bias must be “firmly established” before prohibition will issue.
62. The Court went on to state:
62. Ultimately the central question of fact here is one of judgment and degree. I am not satisfied that a conclusion that the Judge’s intimations were of a nature such that a fair-minded lay observer might reasonably apprehend he had already made up his mind on any issue and had departed from impartial and unprejudiced decision-making has been firmly established.
62. At the time of engaging with Mr Heywood-Smith on both 30 October 2014 and 3 November 2014, the Judge qualified his remarks, a number of times, with the caveat that they were merely tentative. This can be seen in the italicised parts of the passages set out earlier. The Judge was indicating preliminary concerns or positions, but there is no suggestion from the transcript that he had closed his mind as to the underlying merits of the claim before him. Indeed, to the contrary, he stated that he was open to persuasion by the evidence and by counsel.
62. As was discussed by the plurality in Johnson, it is often the case that counsel can benefit from hearing such preliminary views. They provide the opportunity to address a judge’s concerns directly and early. Mr Heywood-Smith indicated as much following the Judge’s opening remarks on the morning of the trial on 3 November, when he replied with “No, I’m grateful for your Honour’s intimation, it enables me to concentrate on those issues in opening”.

62. BUT IT WAS THE WAY IT WAS SAID

62. If one were to leave the bare text of the transcript and have regard to the appellant’s and her solicitor’s observations in their affidavits, it is open to form the impression that the Judge was conveying his preliminary views robustly and forcefully. As a matter of principle, I have reservations as to the utility of such affidavit evidence. It has an obvious capacity to be self-serving. The problems it can present will be exacerbated if contradictory affidavit evidence were to be forthcoming from the other party and/or their solicitor – “I perceived the Judge to be angry and, by inference, so would a fair-minded lay observer” countered with “I did not perceive the Judge to be angry, etc etc.” How is such a contest to be resolved other than by a potentially unproductive process of cross-examination and determination of witness credit and reliability concerning their descriptions of a judge’s behaviour? How is the judge, who hears an application to recuse himself or herself, to deal with this contest in an impartial way when, presumably, he or she knows whether they were or were not angry? A number of the potential concerns are helpfully canvassed by the Full Court in The Queen v Joyce.[81] Their Honours’ judgment contains the following passage by way of conclusion to a quite lengthy discussion of the problem.[82]
62. We will add two things. First, it can only be in an extremely rare and unusual case that such evidence would be admissible. We ourselves can hardly conceive of a case where gesture, tone, and emphasis can add so much to the words as to produce a different legal consequence from the words by themselves. It is obviously undesirable that questions like this should be canvassed if they can be avoided. The learned Judge could not be expected to give, nor indeed do we think he could have given, evidence before this Court about his tone, his emphasis, his smile or his shrugs, if such they were. If a dispute as to the facts cannot be resolved, ultimately reliance must be placed on the written word of the transcript.
62. I recognise that The Queen v Joyce might be distinguishable. Where a judge sums up a criminal trial, the jury will be told that the judge’s own opinions on the facts (expressed or to be inferred) are not determinative and that the facts are entirely a matter for the jury. Whereas, in a case like the present, the apparent opinions of the Judge as intimated are a central feature of the factual enquiry.
62. For the purposes of this appeal, affidavit evidence relied on by the appellant was before the Judge and is before me, according to its terms, and in a context where the countervailing affidavit evidence proposed on behalf of the respondent is not. This evidence does not cause me to alter my view. There is a difference between a judge who has formed a view that a matter should have settled long ago and who robustly, even impatiently and irritatedly, suggests reasons why it should settle on the day of trial and a judge who has prejudged the outcome. The former does not necessarily presage the latter. The emboldened parts of the passages set out earlier show that the Judge here was focussed on achieving a resolution of the dispute, if possible. A fair-minded, lay observer would have understood that it was this that motivated the Judge’s remarks rather than the fact that he held a prejudgment.