PARTIES:	ANDREW GORDON ROGERSON

V

ADOLPHO TCHIA & ORS

TITLE OF COURT:	COURT OF APPEAL (NT)

JURISDICTION:	APPEAL FROM SUPREME COURT

FILE NOS:	No. APl0 of 1992

DELIVERED:	Darwin 23 March 1993

HEARING DATES:	22 and 23 March 1993

JUDGMENT OF:		Kearney J (The Court comprised Martin CJ, Kearney and Thomas JJ)

CATCHWORDS:
COURTS AND JUDGES - Judges - application to disqualify
for appearance of bias - remarks in another case concerning appellant - general principles applicable - whether party or fair-minded person with knowledge of relevant facts could reasonably suspect bias.

R v Watson; exp. Armstrong (1976) 136 CLR 248, applied Livesey v New South Wales Bar Association (1983) 47 ALR 45, distinguished
R v Maurice; exp. Attorney-General (NT) (1987) 73 ALR 123, distinguished
Re Marling; exp	A.M.I.E.U. (1985) 66 ALR 608,
distinguished.
PRACTICE AND PROCEDURE - Judges - member of appellate court
- application to disqualify for apparent bias - whether to be determined by member in question.
Barton v Walker [1979] 2 NSWLR 740, followed.

REPRESENTATION:
Counsel:

Appellant: Respondent: Amicus Curiae:
Solicitors:
Appellant: Respondent:

J. McCormack P.J.B.Tiffin, Close and carter

Judgment category classification:	CAT A
court Computer Code:

Judgment ID Number: Number of pages:

kea93007J

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kea93007J
IN THE COURT OF  APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA

No. APl0 of 1992

BETWEEN:
ANDREW GORDON ROGERSON
Appellant

AND:
ADOLPHO TCHIA,
TCHIA NOMINEES PTY LTD, SKYKYM PTY LTD
Respondent

CORAM:	MARTIN CJ, KEARNEY AND THOMAS JJ

REASONS FOR RULING BY KEARNEY J
(Delivered 23 March 199!)

Mr McCormack of counsel for the appellant has asked me to disqualify myself from sitting as a member of the Court of Appeal hearing this appeal.
The basis of that application is that there could exist a reasonable suspicion that I am biased against the appellant.	The substantial ground advanced to support that application consists of remarks I made when giving reasons  on 25 November 1991 for a ruling on certain relief sought by the plaintiff in proceedings 420/1991, Rogerson v Law
Society of the Northern Territory.
I have now re-read those remarks.	In those proceedings the appellant had sought to restrain the Law

Society from having access to certain files of the legal practice in which the appellant was engaged.	I refused to grant the relief sought.	The background, speaking very generally, was that the Law Society through its delegate, then in the course of carrying out a statutory investigation under the Legal Practitioners Act, had sought access to certain files etcetera of the practice which were ultimately particularised before me as the files relating to a
particular client, who had signed a costs agreement which
contained a provision for the charging of a contingency fee, and all files relating to any client who had been asked to sign such an agreement.
In the course of dealing with the application, I expressed the opinion that the provision for charging the contingency fee was "champertous, improper, unethical and tortious".	In the course of deciding the question whether the relief sought should be granted, I examined in detail a lengthy supporting affidavit by'the appellant of November
1991 and its annexures.	In the course of doing so, I
-
expressed the view at pl9: "It is shocking and distressing,
to use the plaintiff's language"	- that is, the language he had used in an annexure to this affidavit - that he should have thought it proper to have entered  into such an agreement with a client.
At p21 I said "at best, the plaintiff's behaviour in seeking this fee, openly as he did, reveals a lamentable and wholly inexcusable ignorance on his part of a fundamental rule in a solicitor's practice."

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At p24 I said that I expressed "no opinion as to whether the champertous agreement with the client constituted professional misconduct", because that issue was not before me; I also said "that it is unethical and wrong behaviour by a solicitor is elementary."
I now note that the ruling of 21 November 1991 was appealed to the Court of Appeal.	The judgment of the Court of Appeal was delivered on 24 February 1993.	Asche CJ delivered an opinion in which the other members of the court concurred.	In dismissing the appeal Asche CJ observed at p6, referring to my remarks:-
"He was, in my respectful view, properly censorious of the appellant's stated lack of knowledge of the prohibition against contingency fees."
I have considered what Mr McCormack has had to say in support of this application.
The guiding principle to be applied is that laid down in R v Watson; exp. Armstrong (1976) 136 CLR 248 at pp258-263.	The practice on such applications is for the
Judge the subject of the application to determine it.	This practice has been described as both "sensible and adequate"; see Barton v Walker [1979] 2 NSWLR 740 at 750, though that case related to a Judge at instance.	I note that this is also the practice in the United States where applications to Judges to disqualify themselves are more common than they  are here.
It is clear that a Judge of any Court who might reasonably be suspected of bias should not hear the case before the Court.	This is because it is fundamental to the
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administration of justice not only that a Judge in fact brings a fair, impartial and unprejudiced mind to decision­ making, but that it cannot be reasonably considered by a fair-minded person that he has not done so.	But just as a Judge has a duty to disqualify himself from sitting if he considers that he may reasonably be suspected of bias, so also he has a duty not to disqualify himself when he considers that there cannot be any reasonable possibility of any such suspicion.	The necessary reasonable suspicion must be in the mind of a party or a hypothetical fair-minded person, and formed in light of a knowledge of the relevant facts.	The suspicion must be determined objectively.·
I have indicated briefly the factual basis of
Mr McCormack's application.	I do not consider that a party or a fair-minded observer, aware of that factual basis, might reasonably entertain an apprehension of bias on my part in this appeal, on the basis that I have in some way prejudged either the issues in the appeal, or the credibility of any of the witnesses in the court below, particularly the credibility of the appellant.	His credibility was not in issue before-me in the application I dealt with in Rogerson v The Law Society; my remarks in that case were directed to the quality of his frankly-admitted conduct in charging the contingency fee, conduct which I considered to be unethical and improper.	It is necessary that Judges express themselves frankly and bluntly when dealing with issues raised before them, when the evidence warrants it.	My remarks in that case were directed to a

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particular aspect of the appellant's practice as a solicitor, in which he revealed a "lamentable and wholly inexcusable ignorance", as I put it.	The issues in that case appear to have nothing to do with the issues in this case.	I know nothing about the appeal before this Court other than that which appears in the papers filed in Court. The fact that I considered the present appellant's behaviour in the other case, in charging a contingency fee, was unethical and improper, his behaviour being due to his ignorance on the matter, has nothing to do with the issues in this appeal.	Nor, I think, could any party or
fair-minded observer reasonably apprehend that my opinion of the appellant's behaviour in the contingency fee case could colour any view I might form of the appellant, or or the issues raised in this appeal.	The fact that a Judge considers that a solicitor reveals inexcusable ignorance as to one aspect of legal practice, does not carry any connotation at all as to the Judge's view of that solicitor's general credibility.	The appellant's credibility has never been under any attack before me.
The facts and circumstances in Livesey v New South Wales Bar Association (1983) 47 ALR 45, R v Maurice; exp.
Attorney-General (NT) (1987) 73 ALR 123 and Re Marling; exp
A.M.I.E.U. (1985) 66 ALR 608, to which Mr McCormack referred, are quite different to the facts and circumstances which obtain here.
In accordance with the foregoing, I reject the application that I should disqualify myself from sitting on this appeal.

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