Justice Michael Adams birched by NSW Court of Appeal for excessive interference during a trial … Trial was procedurally unfair … Start again … No finding of apprehended bias … Seb Tonkin reports
Justices John Basten, Julie Ward and Arthur Emmett last week found that Adams’ excessive interference in the trial had rendered it procedurally unfair – but declined to make findings that his conduct could reasonably give rise to apprehensions of bias.
The proceedings began in 2010 when Royal Guardian Mortgage Management sued Beth Ngoc Nguyen and Ian Stolyar for alleged breaches of their employment contracts. Nguyen and Stolyar fired back with cross-claims for unpaid bonuses and profit shares.
After a trial in May 2013, Justice Adams ordered RGMM to pay damages to Nguyen and Stolyar of $1.9 million and $970,000 respectively, and their costs on an indemnity basis. RGMM appealed on grounds of procedural unfairness and apprehended bias, as well as alleging errors in fact-finding and the assessment of damages.
The procedural unfairness ground centred largely on Adams’ “insistent and frequent” interruptions during the cross-examination of two witnesses – Anthony Tomazin (RGMM’s principle witness) and Nguyen (the first respondent). RGMM alleged that Justice Adams had:
All this was said to mean that Justice Adams had “entered the well of the court”, and improperly participated in the course of evidence. The Court of Appeal agreed.
Justice Ward reviewed the trial transcript, making observations about Justice Adams’ conduct. The trial judge had interrupted early and often, there being “relatively few pages on which judicial intervention of some kind of another in the course of the questioning of witnesses does not appear”.
Most of Adams’ questions were in the nature of clarification, but there were also interruptions of witnesses’ answers, and comments that Justice Ward described as “openly sarcastic or dismissive, or at least displaying scepticism and incredulity”. Some of the questions – involving multiple propositions rolled into one, or incorporating comments – would have been open to objection had they been asked by counsel.
While interventions were not confined to either side’s witnesses or counsel, Ward JA found that Tomazin had born the brunt – Justice Adams had questioned his candour, urged him to concentrate on questions, and discouraged him from becoming defensive. Ward said:
“It would hardly have been surprising if Mr Tomazin had formed the impression that his Honour was conducting the case.”
The overall impression was that Adams had “descended into the arena and adopted the mantle of advocate”, which meant the proceeding had been, in effect, an inquisitorial hearing, and procedurally unfair.
RGMM also alleged that the judge’s conduct gave rise to an apprehension of bias in favour of the respondents. This was largely based on the conduct of the trial, and overlapped with the procedural unfairness ground.
This limb was rejected by the Court of Appeal. Ward said that while the trial had been unfair, that unfairness had been an attempt to “elicit precisely where the truth lay”, and did not indicate pre-judgment by Justice Adams. Where he had seemed to hold a preliminary view, he put that view to counsel to allow them to address it.
A second argument on bias related to Justice Adams’ association with the respondents’ barrister, Bruce McClintock SC.
On the first day of trial in May 2013, Justice Adams invited McClintock and Marcus Young SC (RGMM’s silk) to morning tea, where he mentioned defamation proceedings he had recently instituted against Fairfax.
Justice Adams sued over an article by Jack Waterford, relating to his conduct when a prosecutor in the David Eastman case. The matter settled last year, with Fairfax apologising. With Young’s permission, Justice Adams later met with McClintock in private.
After delivery of the primary judgment in May 2013, Justice Adams indicated to representatives on both sides that he intended to retain McClintock in his defamation proceedings. RGMM submitted that Justice Adams must have formed that intention some time during the trial, or while judgment was reserved.
Courts have said that failure by a judicial officer to disclose an association with a legal representative can undermine confidence in the officer’s integrity. However, the Court of Appeal here found there was “no logical connection” between the retainer of McClintock and Adams’ impartiality at trial. In particular, there was no reason to think that the judge would have been concerned that McClintock would refuse the brief, or act with less diligence, based on the conduct of the trial.
The respondents argued that RGMM had waived any right to object to the trial judge’s interventions, having failed to do so during the hearing. The Court of Appeal rejected this point.
Justice Basten found that there were serious difficulties identifying a single point in the trial at which objection could have been taken, given the ongoing nature of the interventions. The full risk of the interventions could not be appreciated until judgment was delivered, and adverse credit findings were made about Tomazin.
The Court of Appeal declined to deal with the remaining substantive grounds of appeal, given the areas of dispute between the parties turned, crucially, on credibility findings which were not sustainable given the procedural unfairness of the trial.
The matter was remitted to the Supreme Court for re-hearing of each of the parties’ claims.