Fears of bias by judge

By Michael Pelly Legal Reporter
August 4, 2005

A Federal Court judge has been castigated for his cross-examination of witnesses, with an appeal court throwing out his verdict partly because of fears he had pre-judged the case.

The finding of apprehended bias against Justice Richard Conti is so rare it is believed to have happened only three or four times in the past 10 years.

However, the Full Court of the Federal Court said he had argued with witnesses, offered comments in "a censorious tone" and suggested the plaintiff's arguments were "legally and ethically unmeritorious".

The case involved a dispute over architectural drawings between Parramatta Design and Developments and a developer, Concrete Pty Ltd. Concrete had purchased a Nelson Bay site for $2.76 million and wanted to use the drawings.

Parramatta refused to give permission but Justice Conti found there was an implicit licence which passed with the sale of the property. The Full Court disagreed but added their concerns on the bias issue.

In their joint judgement, Justices Catherine Branson, Susan Keifel and Ray Finkelstein said they placed "particular weight on the substantial intervention" by Justice Conti during evidence by a solicitor, Benjamin Barrak.

Mr Barrak had established Landmark - the company that sold the site - along with Ghassan Farres of Parramatta Design.

At one point Justice Conti said: "I just don't understand how, legitimately - leaving aide questions of morality and ethics - I just don't understand how legitimately Concrete Pty Ltd has been drawn into this dispute, which is basically a dispute between joint venturers".

And in his judgement, Justice Conti said the reasons for the litigation were "mystifying", given that Landmark had made more than $2 million profit on the original purchase price of $560,000.

Allegations of apprehended bias are not unusual but are rarely raised in relation to comments made during a trial. The Full Court said that "any experienced lawyer" would accept the judge would not allow his own views to influence his conclusions.

"However, the test we are required to apply involves consideration of what a fair-minded observer might reasonably conclude in the circumstances," it said.

Such a person would think Justice Conti "had allowed his views to prejudice the case advanced by Parramatta".

The litigation not only tested Justice Conti but drew sharp remarks from the Full Court.

They said it was "only a two day case" and that all parties involved were at fault in dragging it out to 10 days: "We estimate that five days of the trial were wasted on irrelevant topics."