Keddies asks Court of Appeal to throw Justice Adams off their contempt case ... Complaints of "derision and scepticism" ... Basten JA says "unseemly exchanges" between bench and bar not uncommon ... Evidence seeking to contradict a court transcript rejected ... Conspiracy denied ... Brigit Morris reports
Today (March 1) the NSW Court of Appeal heard submissions from Chris Branson QC seeking to have Justice Michael Adams removed from hearing contempt allegations into the former principles of Keddies.
On February 3, Adams dismissed an application that he recuse himself on the ground of apprehended bias.
The central contention before Justices John Basten, Peter Young and Ronald Sackville is that Adams treated the defendants and Branson with "derision and skepticism" and that the judge has shown a "cumulative" pattern of bias.
Today Branson submitted there were omissions in the court transcript from the contempt of court hearing on December 6 that went to Adams' apprehended bias.
Branson moved a notice of motion to produce new evidence, consisting of two affidavits dated February 17.
The affidavits apparently detailed the omitted statements of Adams made on December 6.
Branson cited some examples of what he regarded as Adams' more "derisive" comments, including: "This is not a circus Mr Branson."
Basten remarked that all judges had "unseemly exchanges" with counsel from time to time, which may appear "direct", but should not be taken to give offence or indicate bias.
There was discussion from the bench as to whether a lawyer may tend evidence contradicting a court transcript and ultimately the court rejected the notice of motion to adduce new evidence.
Branson also challenged whether a cheque made out by a former employee of Keddies to a former client of the firm, constituted "communications" prohibited by the terms of an earlier Supreme Court injunction.
The injunction, dated November 24, 2011, forbade communications between Keddies and former clients who were challenging the way in which their settlement moneys were handled.
Several days after the order was made, a cheque for $80,000 was produced to a former Keddies' client, Mr Xi Li, by "Helena", a Chinese interpreter employed by Keddies.
It is this payment that forms the basis of the contempt of court charge.
Branson said there was not a "conspiracy" between these parties to pay-off former clients.
He also submitted that Justice Adams "closed his mind" to the defendants' case as a result of reading 18 affidavits filed by the plaintiffs in support of their over-billing cases.
These affidavits, from former Keddies' clients, were never adduced and read in court, but were nonetheless filed.
Branson conceded that it was "unsurprising" for the judge to have concerns arising from the content of these affidavits.
Nonetheless, he argued these concerns would "colour" a judge's subsequent conduct, particularly as the defendants were not given the opportunity to object to the evidence contained in the affidavits or cross-examine on them.
Robert Stitt QC, for solicitor Stephen Firth, whose clients are suing Keddies, told the court that judges are frequently called upon to put material to one side in order to make impartial judgments.
Stitt pointed to Justice Michael McHugh's reasons in Ebner v Official Trustee in Bankruptcy - the oath or affirmation taken by judges to preclude prejudicial information from their decision-making establishes a high burden for then proving they are incapable of turning their minds away from such prejudicial information.
Justice Sackville reminded the court that judges are often expected to read material which is not tendered or relied upon by a party to proceedings.
In these cases, judges are routinely required to put aside irrelevant or prejudicial material.
Brigit Morris reporting from court 12A
Justinian
On March 9 the Court of Appeal rejected the applicants' attempt to remove Justice Adams from the case on the ground of apprehended bias. See judgment.