Judges have to be careful about making public statements on current issues that may allow claims of bias. There can also be matters in which judges were involved as lawyers before they were appointed that can later lead to bias claims.
A Mrs Thomson, a litigant in person (LIP) challenged, unsuccessfully, the independence of the Judge hearing her matter on those two bases, that, as a barrister:
- he had given a talk at a conference about LIPs that she claimed showed a bias against them; and, separately
- he had acted for a liquidator of a firm of liquidators – SV Partners – that included the liquidator involved in Mrs Thomson’s proceedings.
The matter before the Judge involved a company, Tremco, which sued Mrs Thomson as a de facto director of Kadoe, a company in liquidation, under s 588M of the Corporations Act. One of the joint liquidators was a Mr Rose of SV Partners. After a nine-day trial, in which she represented herself, judgment was given in favour of Tremco against her in the sum of $372,000.[1]
Mrs Thomson appealed to the Queensland Court of Appeal on the two bases indicated.
Bias
She claimed the Judge’s conference paper said that LIPs
‘were not in touch with reality, and remain insane for the bulk of their life because they hold on to grievances for losses that are not real; and compared them to Don Quixote, fighting their opponents on fantasised images or suffering from pathological symptoms like schizophrenia, where 150 years of medical research into querulous paranoia has not provided any true pathological reason for that querulousness’.
But when the details of the paper given by the judge were examined,[2] they were a serious and objective discussion about issues involved with LIPs. He identified the need for an advocate to gain some insight into the character and motivation of the litigant in person and in doing so referred to several categories, including the ‘misguided or misled LIP’, the person who simply could not afford legal representation and the ‘querulous’ or ‘vexatious’ litigant. This latter category was a person who was said to be ‘obsessed with a particular issue or grievance’, with a comparison made with Don Quixote in a passage quoted by the judge, from a paper by a psychiatrist.
However, in this case, the Court of Appeal said that ‘on no basis whatever could Mrs Thomson be described as falling into the category of querulous litigant’.
The circumstances did not pass the standard test of the High Court in Ebner v Official Trustee in Bankruptcy,[3] 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”.
Further, the fair-minded lay observer would be aware that at the 9 day trial the transcript showed
‘not the slightest hint in the conduct of the trial that the learned trial judge considered Mrs Thomson a querulous litigant, as opposed to simply a litigant who could not afford legal representation’.
The judge’s disclosure during the trial
During the trial and the cross-examination of Mr Rose, the Judge saw fit to disclose that he had acted as a barrister for certain liquidators of SV Partners in the liquidation of an unrelated company, Hilltops, a creditor of which was a company of which Mr Rose was liquidator. Only out of abundance of caution, did he disclose it.
This prompted Mrs Thomson to again challenge the continued hearing of her matter by the Judge.
The Court of Appeal again rejected Mrs Thomson’s application. The Judge had never acted for Mr Rose, and there was no interaction of any meaning between them.
“To say that the disclosure was made out of an abundance of caution is an understatement. In my respectful view there was no need for a disclosure at all”.
The judge was
‘ultra cautious because he had an unrepresented litigant before him, but the mere fact that he made that disclosure does not turn something that was not disqualifying into something that was’.
In fact, simply because a judge has acted in a professional capacity in other matters for a party to the proceeding will not normally provide grounds for disqualification.[4] Here the case did not even reach that point.
See Thomson v Tremco Pty Ltd [2019] QCA 18.
[1] [2018] QDC 101
[2] Advocacy and the Litigant in Person, B Porter QC, 25 March 2017
[3] [200o] HCA 83
[4] Citing Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78; Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411.
