Case: Smits v Roach [2006] HCA 36 ; (2006) 227 CLR 423
Outcome: cited
a result of the failure of the negotiations I asked Mr De Kerloy to bring a motion for His Honour to disqualify himself and he again declined to act on such a motion. I was then required to engage another solicitor to bring this application. It is correct that, a very long time ago, I was briefed to appear as counsel for, I think, the then Commissioner for Corporate Affairs upon several complaints in the then Perth Court of Petty Sessions against Mr Carey. I am prepared to proceed on the footing that this occurred in or about 1980 as Mr Carey suggests. Mr Carey states that the charges concerned alleged insolvent trading. I will proceed on the basis that Mr Carey is broadly correct in his characterisation of the charges. My recollection, correct or not, is that Mr Carey was convicted on all counts but that these were quashed on appeal. At the commencement of the third day of the trial on 27 March 2008, I made disclosure in the following terms to the parties concerning an investment made by one of my brothers-in-law in a company in the Westpoint Group. HIS HONOUR: But before you call Mr Nairn, I need to inform the parties that during the course of the hearing yesterday something triggered a recollection of mine that one of my brothers-in-law was an investor in a company. I couldn't remember the name of it but I made inquiries last night and it was the company called York Street Mezzanine Pty Ltd, which I think may have something to do with the Westpoint group. MR DE KERLOY: Yes. HIS HONOUR: Now, I don't consider that fact to be an impediment to my hearing this case. However, I felt it important to tell the parties of that fact. MR DE KERLOY: Yes, I would not take any issue with that, sir. Thank you for the disclosure. HIS HONOUR: Very well, thank you, Mr de Kerloy. Mr Slater? MR SLATER. We wouldn't take issue with that. HIS HONOUR: Very well. If you wish to call Mr Nairn, you can do so, Mr de Kerloy. I will proceed on the basis of Mr Carey's assertion that York Street Mezzanine Pty Ltd is indeed a company "associated with the Westpoint Group" and that any person, including my brother-in-law, who invested in York Street Mezzanine Pty Ltd has "lost their money". Lanepoint is concerned that Mr Carey's credibility had become an issue in the case in respect to the accounting treatment of loans recorded as having been made to the Westpoint Income Fund which the respondent contended were erroneous and which had been corrected. The test as to whether there is an apprehension of bias is whether "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": Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at [6] ; Johnson v Johnson [2000] HCA 48 ; (2000) 201 CLR 488 at [11] ; Antoun v R [2006] HCA 2 ; (2006) 224 ALR 51 at [1] , [51], [82]; Concrete Pty Ltd v Parramatta Design &amp; Developments Pty Ltd [2006] HCA 55 ; (2006) 229 CLR 577 at [110] . The application of this principle requires two steps. First, it requires the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits. Second, 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: Ebner v Official Trustee in Bankruptcy at [8]; Smits v Roach [2006] HCA 36 ; (2006) 227 CLR 423 at [53] , [56]. The insolvent trading prosecution: Counsel for Lanepoint submits that in the course of acting in the prosecution it is to be expected that I would have been exposed to a range of issues or allegations concerning Mr Carey's conduct. This, he says, is an integral part of the process that those seeking to advance a case tell counsel a range of facts some of which will become admissible as evidence and be put before the court and others which may never see the light of day in that context, but nonetheless have the capacity to effect counsel's perception of the defendant. Lanepoint was at all times represented by counsel in these proceedings. At the time I made disclosure concerning my brother-in-law's investment, Ms Carey, the then director of Lanepoint was, I am told by counsel for Lanepoint, in Court. It is not to the point to consider whether counsel for Lanepoint declined to object without instructions being taken from Ms Carey. So much is evident from what was said by Gleeson CJ, Heydon and Crennan JJ in Smits v Roach at [45]-[48]. The Court is generally entitled to rely upon what counsel states on behalf of his or her client on such matters. Mr Carey knew of the matter which was the subject of my disclosure from as early as the beginning of April 2008. It was, belatedly, conceded in argument by counsel for Lanepoint that as and from about four weeks from the 27 March 2008, the third day of the trial, Lanepoint had impliedly waived its right to object to my hearing the case on the ground that my brother-in-law had lost his investment in a company in the Westpoint Group. This then leaves only the matter of the prosecution and the defamation action.