1. On 23 February 2026, I published reasons in Badat v BP Australia Pty Ltd

1. This application is brought based on a series of interchanges at directions hearing and the findings made in Badat v BP Australia Pty Ltd [2026] WASC 48. (emphasis in the original, citations omitted)
2. As articulated by senior counsel for the plaintiff at the hearing, there are essentially two bases the plaintiff relies on.
3. The first is what was said to be 'antipathy' in the oral submissions or, I think, 'animus' in the plaintiff's written submissions towards the plaintiff. The second basis is an apprehended pre-judgment of the merits of BP's defence or a defence of BP.

1. The relevant principles are well established and not in doubt.
2. They were reaffirmed by the High Court in SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2026] HCA 8 (Sunshine Loans).
3. The test by which a judge is disqualified on the ground of apprehended bias is often referred to as 'the double-might test', that is:

... if 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.[2]

1. The correct application of that test requires:
   1. identification of the factor, which is said might lead a judge to resolve the question other than on its legal and factual merits;
   2. articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and
   3. assessment of the reasonableness of that apprehension from the perspective of the fair-minded lay observer (Observer).[3]
2. The third part of that test, concerning the position of the Observer, feeds into each of the first and second parts. I am conscious of that and have borne that in mind.
3. In considering the construct of the apprehension of the fair-minded lay observer:

The fair-minded lay observer will be aware of the question the judge is tasked with deciding and its legal, statutory and factual context; and that the test is applied to a "professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial". Accordingly, the reasonableness of an apprehension of bias is assessed in the context of ordinary judicial practice.[4] (citations omitted)

1. Of some significance to the determination of this application is that the matters identified by the plaintiff have all occurred in the course of case management hearings and the determination of interlocutory applications.
2. The nature of such hearings and determinations inform the understanding of the Observer of what was appropriate conduct for both counsel and the court and what was not.[5]
3. Particularly in the context of case management in a commercial matter where the parties are represented by firms and counsel, it seems to me that the following observations of the Victorian Court of Appeal in Bodycorp Repairers v Holding Redlich [2018] VSCA 17 are apposite:

A judge is not precluded from displaying 'irritation or impatience' and is at liberty to express 'measured displeasure' at the manner in which proceedings are conducted. When issues of this kind arise, they must be assessed within their full context.[6] (citations omitted)

1. Also of some significance to some of the plaintiff's submissions, I take it as established that the Observer would not take one thing said at a hearing, or a line of transcript, of itself without considering all that was said or recorded in the transcript and assessing the context for what was said or is recorded.
2. One of the things that the Observer must be assumed to know is the whole context in which something is said, including having access to the full transcript, rather than cherry-picked quoted extracts.
3. I am also conscious of the statements made by Jagot J in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 at [275] - [279], regarding the balance between the judge's obligation or duty to hear matters assigned to them and the protection of public confidence, and that where there is a proper basis, the obligation to protect public confidence in the administration of justice must prevail. I have taken into account similar observations which have been referred to me by the plaintiff, that if there is an area of doubt or if it is a case of reasonable minds differing, then, prudently, the protection of public interest ought prevail.

Hearing on 13 September 2023 - relevance of expert evidence to matters in dispute

1. This hearing is dealt with in the Plaintiff's Submissions at [28] ‑ [30]. As stated above, context is always important when considering statements made in court.
2. The plaintiff quoted from the transcript of the proceedings on 13 September 2023 at [30] of his submissions where I had characterised expert evidence as being 'the crux of the case.'[7]
3. The context immediately prior to that quote was the plaintiff's (then) senior counsel saying:

McINTYRE, MR: ... And as your Honour has rightly anticipated, the facts are really not - any relevant facts are not in issue. Any fact that your Honour needs to know is well documented. So I was anticipating that my opening would be largely introducing your Honour to any crucial documents and calling no lay evidence. Clearly, the expert evidence is going to be quite significant and as your Honour knows there are already, sort of, three types of expert evidence and we anticipate that we may need some further expert evidence in relation to quantification of damages.

HOWARD J: Well, we will come to expert evidence, because it does seem to me it's the crux of the case. So we will come to that.[8] (emphasis added)

1. With respect, what I said was, and I think can only be understood as, an acceptance of what senior counsel for the plaintiff was putting to me at that time about expert evidence.
2. I do not consider that, in context, there is an appreciable difference between 'quite significant' as then senior counsel for the plaintiff put it, and 'the crux', as I put it back to senior counsel.
3. It is also of significance to note that since the hearing on 13 September 2023, there have been two further statements of claim filed by the plaintiff: see [11.6] and [11.7] of the first reasons.
4. The plaintiff now submits that expert evidence 'is not the crux of the case and could never have been'.[9] It may be accepted that the plaintiff's case, I say without criticism, is now appreciably different from that which was before the Court on 13 September 2023.
5. Further, the exchange on 13 September 2023 pre‑dated the orders made on 20 December 2023 granting leave for the parties to adduce expert evidence: see the December 2023 Orders as outlined in the first reasons at [159].
6. Also, the exchange on 13 September 2023 was prior to the considerable engagement of the parties in the formulation of the Expert Schedule[10] which I described in the first reasons between [167] and [174].
7. With respect, I consider that the proposition which appears to be advanced, to the effect that the Observer might reasonably apprehend that I might have had a fixed view about the expert evidence on 13 September 2023, and that I maintain that fixed view, is not sustainable.
8. That proposition does not reflect the exchange on 13 September 2023, and it does not take into account the developments and refinements in the plaintiff's case since.

Hearings on 4 March 2025 and 1 May 2025 - charting own course

1. As already noted, on 20 December 2023, I made the December 2023 Orders which included orders for the Expert Schedule.
2. In the first reasons, I summarised what relevantly had occurred in 2024 concerning, in particular, Mr Throssell as an expert at [177] ‑ [185].
3. The background to the hearing on 4 March 2025, which the plaintiff refers to in his Submissions at [31] and [43], was the application brought by the plaintiff on 26 February 2025,[11] which I cited in the first reasons at [188] - [189].
4. The plaintiff's application on 26 February 2025 did not seek to revisit the December 2023 Orders or the Expert Schedule, which had been the orders made and the approach taken by the Court regarding expert evidence since the end of 2023.
5. Rather, the plaintiff, by his application of 26 February 2025, sought to graft onto the proceedings a separate expert regime.
6. By the time the plaintiff's application was brought on 26 February 2025, as recited in the first reasons at [183], [185] and [186], three principal expert reports had been filed.
7. Having quoted from the transcript of the hearings on 4 March 2025 and 1 May 2025, the plaintiff then submitted:
   1. The plaintiff's counsel was seeking to advance submissions about why the plaintiff wished to advance additional evidence. The [fair minded lay observer] reading the transcript will readily understand that the case management judge was not prepared to allow Mr Badat to do that because he held a view that Mr Badat had a history of changing his position in the litigation.
8. In the first reasons, I set out the two bases of the plaintiff's application of 26 February 2025, namely:
   1. that the December 2023 Orders were made pursuant to O 40 of the Rules of the Supreme Court 1971 (WA) (Rules): at [193]; and
   2. that the reports of Mr Throssell and Mr Fyson were in part incomplete, unclear, insufficient and unreliable to resolve key issues: at [206].
9. The plaintiff's asserted deficiencies in Mr Throssell's report were further sought to be captured in the first reasons at [208], and in respect of Mr Fyson's report at [215].
10. To assess the plaintiff's current submission about these hearings, some further context may assist.
11. As quoted from [43] of the Plaintiff's Submissions, the plaintiff submitted that I was 'not prepared to allow' him to advance additional expert evidence.
12. That is not, however, how the plaintiff's application of 26 February 2025 was resolved and disposed of.
13. Rather, in relation to that part of that application of 26 February 2025, which was to adduce Mr Dermody's report, as noted in the first reasons at [217], the plaintiff chose not to press that application.
14. As to that other part of the application, to adduce the report of Mr Garmony, that part of the application was dismissed on 20 May 2025, after counsel for the plaintiff did not seek to persist with the application in its then form: see [108] and [109] of the first reasons.
15. That is, the plaintiff himself did not persist with those applications, and that is, with respect, an important piece of context for the Observer assessing the asserted degree of frustration with, if not asserted antipathy towards, the plaintiff.[12]
16. Accordingly, I would not accept as accurate the assertions in [43] of the Plaintiff's Submissions as to my not being prepared to allow the plaintiff to adduce that evidence. The plaintiff's application of 26 February 2025 was to be timetabled, but the plaintiff did not press the application.

Hearing on 4 March 2025 - conduct of solicitors

1. The plaintiff sets out his Submissions on this hearing at [44] ‑ [47].
2. I note that the affidavit which the plaintiff referred to in his Submissions at [44] was the affidavit of Mr Dragovic,[13] a partner of the defendant's solicitors, which went to the defendant's application of 28 February 2025 to supply further documents to Mr Throssell.
3. That affidavit did not go to the restraining order which the plaintiff had sought against Mr Dragovic in the Magistrates Court of Western Australia, nor to the plaintiff's proposal to subpoena the defendant's employees, and his direct communication with BP employees.
4. The relevant matter was raised by senior counsel for the defendant on 4 March 2025 in the following way:

GARAS, MR: ...

There's a separate issue that I will be raising with your Honour, if your Honour is prepared to hear about it, which is a proposal that we've seen from Mr Badat in relation to subpoenaing a number of witnesses, principally BP employees, and there's an issue that has arisen in relation to these communications directly with those employees, as well, but I will perhaps just reserve that for the moment and just deal with your Honour's queries in relation to the program and how to address these applications.[14]

1. Further in that hearing, senior counsel for the defendant said:

GARAS, MR: Lastly, this issue about subpoenas. So at the end of last month, Mr Badat sent a broad email to a number of BPs [sic] employees, copying in my instructors and, indeed, myself, which seems to be his standard approach to communications. That email had a particular tone that was concerning. Mr Dragovic responded to Mr Badat, inviting him to have those sorts of communications through his solicitors, on the record, and including that anything for BP employees, in terms of subpoenas, would be managed through BP and Herbert Smith Freehills.

Those particular employees have also expressed a desire to not be communicated with directly by Mr Badat. We appreciate there is no property in witnesses but that's the desire that they have expressed. Off the back of that, Mr Badat, this morning, lodged a misconduct restraining order against Mr Dragovic, making all various allegations in relation to those exchanges, and that's the - - -

HOWARD J: In the Magistrates Court.

GARAS, MR: In the Magistrates Court, and not dissimilar to the approach he took in relation to Mr Throssell. We anticipate that may create some issues and we've actually conferred with our friends about whether Mr Badat will withdraw that application. The last communication we received, which was early this morning, as I understand it, is that he - well, our friends are not instructed in relation to that matter, and so it may be that we may bring an application seeking not dissimilar orders to the kind that your Honour made in relation to Mr Throssell, and if Mr Badat wishes to agitate any issues, he can agitate those issues in this court before your Honour.

I anticipate that application will likely have to be made unless we're able to resolve the issue through either Mr Badat or Mr Badat's alternative lawyers, if there are any, indeed, instructed.[15]

1. Some context to the transcript of 4 March 2025 that was quoted by the plaintiff in his Submissions at [45] is also provided by orders which I made on 22 May 2024. I lightly touched on that application and the orders I made in the first reasons at [179].
2. In May 2024, (about 10 months prior to the plaintiff's application in the Magistrates Court being raised in this court in March 2025), the plaintiff's then solicitors in this Court had also not been instructed in the plaintiff's restraining order application in the Magistrates Court, and were not able to assist this Court on that matter in May 2024. That was notwithstanding that the plaintiff's application in the Magistrates Court in 2024 had the real potential to interfere and cut across the expert process which had been ordered in this Court.[16]
3. To the Observer, it would appear, in my view, at the least out of the ordinary that in a commercial matter a party had on one occasion, let alone two, sought restraining orders in the Magistrates Court against an expert witness and a partner in the firm of their opponent's solicitors respectively.
4. Further, where such applications in the Magistrates Court had at least the potential to interfere with this Court's proceedings, it would appear to the Observer, in my view, unsurprising and unexceptional that it would be raised by this Court with the plaintiff's solicitors on the record in this Court, and that it may be a source of some frustration that those solicitors were not able to engage with those issues which could impact on these proceedings.
5. The observation that it was 'not satisfactory' that the plaintiff's solicitors on the record in this Court could not engage with the Court on those issues seems to me to be unexceptional and unsurprising and would be seen by the Observer as such.

Hearing on 20 October 2025 - lodgement of the plaintiff's evidence

1. The plaintiff deals with this hearing in his Submissions at [48] ‑ [50].
2. Some context to this hearing is set out in the first reasons at [17] and following.
3. In particular, the quoted parts of the transcript in the Plaintiff's Submissions at [49] do not include the statements and concessions made by the plaintiff's then counsel at the directions hearing on 20 October 2025, which are recorded in the first reasons at [31].
4. When the full context is taken into account with the quoted parts of the transcript in the Plaintiff's Submissions, I consider that the Observer may well conclude that I was critical that the plaintiff:
   1. had not complied with the timetable which had been set on 20 May 2025: see first reasons [21]; and
   2. had not sought to regularise the position before the defendant requested the directions hearing, which ultimately occurred on 20 October 2025: see [28] of the first reasons.
5. In those circumstances, the observations made as to whether the plaintiff was indifferent to the keeping of the trial dates was not out of place in case management practice, and would be understood as such by the Observer.
6. In any event, there is then a very considerable leap made by the plaintiff to suggest that it may be apprehended that I might not then bring an impartial and unprejudiced mind to the merits of the plaintiff's case, contrary to the Plaintiff's Submissions at [50].

Hearing on 22 January 2026 - merits of the plaintiff's case

1. The plaintiff dealt with this hearing in his Submissions at [51] ‑ [55].
2. As noted in the first reasons at [43], the 22 January 2026 hearing principally concerned whether subpoenas issued by the plaintiff should be set aside.
3. Two of the subpoena recipients were Adam Sparkes and Andrew King, who are, or were at least, employees of the defendant.
4. The defendant applied to set aside, amongst others, the subpoenas issued to Mr Sparkes and Mr King, which had been issued on 18 and 19 December 2025, respectively.[17] The plaintiff sought to maintain those subpoenas.[18]
5. In response to the defendant's submissions to set aside those subpoenas, counsel for the plaintiff submitted:

HEALY, MR: This is one matter I would raise. The submission made that the best evidence is in relation to the steps that were undertaken are set out in the JBS&G reports. So within that, we say it's this acceptance that what works were undertaken have some relevance to the determination of the matters at trial, and we say that this evidence of Messrs Spark[e]s and King goes to that issue in relation to a matter that my friend accepts is a relevant issue. It's part one of the issues that's within the matter. So it's that issue that we seek the leave to issue the subpoenas to Mr Spark[e]s and King.

Now, ultimately, given our exchange today, whether that evidence needs to be led or not, because of the exchange in relation to, doesn't matter, because we just take it as we found it. However, on the plea in 46(b)(4), and in the submission advanced by the defendant today, there is some relevance about what actually was done, and that's the reason why we say the subpoenas to Messrs King and Spark[e]s should remain. And ultimately at trial, if those issues fall away or their evidence no longer becomes relevant, then we don't need to leave that evidence.

However, at the moment, it seems that there is some relevance in relation to what works were actually performed. Now, I accept your Honour's comments about, well, is that going to be - turn the dial as to how you determine the case? Well, it may not, but standing here today, so that ruling can't be made until you've heard the party's opening and we've dealt with whatever evidence there is.

HOWARD J: Well, do you accept that the only - the difficulty with that is you could effectively open on that today. It's just a legal submission, isn't it? I mean, I don't know why the court's going to be better informed after the opening.

HEALY, MR: Well - - -

HOWARD J: Unless it's, well, we hope that we will have a better case by the opening than we do today.

HEALY, MR: No, I don't think that's correct. The issue we have to understand is, once the parties have filed their submissions, and we understand what use or the relevance is of these JBS&G reports about the steps that were undertaken, are those matters still an issue based on the openings, then - - -

HOWARD J: Well, I think maybe this will get teased out at the next hearing, if there is one, as to what the plaintiff says is the difficulty with the way the JBS&G material is being dealt with at the moment. It's not plain to me what the difficulty is. But maybe that will be more plain by the next occasion. I don't know.

HEALY, MR: Yes.[19] (emphasis added by italics; the underlining is the quoted passages in the Plaintiff's Submissions)

1. I do not accept the submission made by the plaintiff in his Submissions at [52], [54] and [55].
2. When the more full transcript is considered, it is apparent that the context was that the question of whether Mr Sparkes and Mr King could give relevant evidence was being agitated, and in reply, the plaintiff's counsel suggested the admissibility of that evidence could only be assessed once the plaintiff had filed his opening submissions.
3. While opening submissions may highlight or elucidate the plaintiff's pleaded case, it was not apparent to me, as expressed, how the question of relevance would be further illuminated by those opening submissions.
4. That is why I asked why the legal propositions, which may be put in the plaintiff's opening submissions if they were relied upon to support the putative evidence's relevance, could not be made by counsel at that hearing on 22 January 2026.
5. With respect, I do not consider that the plaintiff's extracted quotation from the transcript of 22 January 2026 gives a fair picture of the exchange. More significantly, however, I do not understand how that might give rise to the reasonable apprehension on the part of the Observer of either pre-judgment or animus.
6. In any event, if one reads on, even if the evidence of Messrs King and Sparkes were relevant in some peripheral way, I would have refused the leave sought on discretionary grounds.[20]
7. The plaintiff also submitted that at the hearing on 22 January 2026, I accepted that the defendant had a valid defence.[21] The plaintiff made a similar submission with regards to the second part of [82] of the first reasons.
8. Again, context is important. That part of the transcript quoted in the Plaintiff's Submissions at [8] needs to be read with what came before it.

HOWARD J: Yes. Working with the plaintiff's minute of proposed orders, I decline to make order 1 in its entirety, noting that 1(a) was not pressed. In relation to order 2 sought, I am adjourning the plaintiff's application for leave to adduce evidence from Mr Suman Dandu to the trial. And I am otherwise dismissing the plaintiff's application for leave to adduce evidence from Adam Spark[e]s and Andrew King. Again, I note that order 2 was not pressed in relation to Dr Bill Richmond. I am not persuaded that either Messrs Spark[e]s or King can give - let me go back a step.

I'm not persuaded that the matters that are put in paragraph 15 of the plaintiff's outline, filed 21 January 2026, arise in the way described by the plaintiff's submissions on the pleadings. It seems to me that the true issues are as I expressed them in the argument with counsel, but by way of summary, are about whether BP has left the site in a way that complies with its obligations under the Act and under the lease, acknowledging that part of BP's defence is that certain further steps need to be taken, and that they are being prevented from being taken by Mr Badat, over which BP have no control.

Even if it may be, which I don't think is the case, that the evidence of Messrs Spark[e]s and King, which is sought to be led as articulated in paragraph 15 of the plaintiff's submissions. If I'm wrong, and it has a peripheral relevance, then in circumstances where orders have been in place for some considerable time for the identification and exchange of evidence, where the plaintiff is very significantly outside of those timeframes without any explanation, then, even if they had peripheral relevance in the exercise of discretion given where we are with the trial, I would not accede to the application for leave to be granted.[22] (emphasis added by italics; underlining showing that part of the transcript quoted by the plaintiff in Plaintiff's Submissions)

1. With respect, the above quoted passage shows clearly that I accepted that the defendant had put a matter by way of defence. That I accepted that it was a valid defence, in the sense that it was operative and would be successful, does not appear when the transcript is read. There was no acceptance by me that what was put by the defendant was a valid operative defence.
2. Rather, for the purpose of explaining a ruling or seeking to explain a ruling, I identified parts of what I understood was put by the defendant in its defence. Nothing more.

1. The plaintiff makes his written submissions on this aspect at [56] and [65] and I have also had the benefit of senior counsel's careful oral submissions on the first reasons.
2. The plaintiff suggests in his Submissions at [56] that the context of the first reasons begins with his applications made by minute of proposed orders on 4 February 2026.
3. As I sought to demonstrate in the first reasons, I do not consider that is an appropriate starting point. I consider that the history of the listing of the matter for trial and trial directions provides the context for the determination of the costs of the first of the plaintiff's applications of 4 February 2026, which was to have leave to file further evidence of the plaintiff himself.
4. And, I consider that the history and course of the expert evidence in the matter was relevant to that part, or to the costs of that part, of the plaintiff's applications of 4 February 2026, which sought to object to expert evidence by the Expert Evidence Objections.[23]
5. The plaintiff submitted:
   1. A fully informed fair minded lay observer understanding that the reasons at [1] to [242] were not an exercise of judicial power could only understand them to be an unwarranted criticism of the plaintiff. That is particular [sic] so in the context of the earlier comments made at preceding directions hearings.
6. The plaintiff has not suggested errors in the chronology recited in the first reasons, nor has the plaintiff identified why any particular criticism of him within the first reasons was unwarranted.
7. That is not without significance in the context of the case management directions and determinations.
8. The plaintiff, in his oral submissions, referred particularly to [51], [63], [101], [118], [153] and [236] ‑ [237] of the first reasons to advance the submission, as I understood it, that the Observer might infer animus, either by tone or possibly by what was said to be a determination of a matter, not argued and said not to be in issue.
9. I do not accept that [1] ‑ [242] of the first reasons were not an exercise of judicial power, contrary to the Plaintiff's Submissions at [58].
10. Further, with respect, I do not understand the significance of that submission, given that there is no suggestion this Court is presently exercising federal jurisdiction.
11. It may be that the submission is intended to be that the first reasons were gratuitous in some way and so evidenced animus.
12. It is the case that the first reasons provided an explanation for the costs orders which I made.
13. Those costs orders were opposed: see [244] and [245] of the first reasons.
14. It is not the case, as perhaps suggested by the Plaintiff's Submissions at [60], that the plaintiff took the view that the costs of the 4 February 2026 application should follow the event.
15. The plaintiff submitted that the award of costs, 'only' on a normal party/party basis, was inconsistent with the balance of the first reasons.[24]
16. However, the applications had been withdrawn after being partly argued, and the plaintiff made the submissions he wished to make on the question of costs.
17. To my mind, the position was analogous to a proceeding that has been discontinued.
18. The Court routinely makes an assessment of the likely outcome of an application or proceeding, and that was what was done, in part, by the first reasons.
19. Given the history of interlocutory disputes and rulings in this matter, it is also difficult, in that context, in my view, to conclude that the first reasons had no utility in the way submitted by the plaintiff so as to be gratuitous.
20. As is demonstrated by the first reasons, and, indeed, by these reasons, this matter has not had a smooth history in its interlocutory steps since it came into the CMC List.
21. The history since the middle of 2023 is extensive, and I did not, and do not consider it inappropriate to record the history in the lead up to the trial where there were still interlocutory disputes being agitated as late as the evening of 17 February 2026, prior to a trial starting on 23 March 2026.
22. It is certainly the case that I made criticism in the first reasons of the plaintiff's applications brought on 4 February 2026 as to their:
    1. merits;
    2. lateness; and
    3. lack of supporting evidence as to their lateness.
23. I understand the plaintiff does not accept the lateness point, but he has not identified why such criticisms might be regarded by the Observer as unfounded or unwarranted.
24. The proposition which may be advanced by the plaintiff is that an application, however doomed to fail or unsupported, may escape criticism by being abandoned before its final determination.
25. If that is advanced, I do not accept that proposition.
26. In any event, as these reasons demonstrate, perhaps ironically, the utility in setting out the history of the matter is that it provides a ready place from which to consider any further interlocutory dispute, if that history is relevant to the determination of the particular interlocutory dispute.
27. Until the hearing on 18 February 2026, there was a real prospect that I would not be the trial judge. While it is usual that the case manager in a CMC List matter will be the trial judge, that is not universally the case.
28. In those circumstances, the case manager capturing the relevant history of the matter, which may be in their head to some degree, in the event that another judge were to pick up the matter, would not seem of itself inutile.
29. The plaintiff submits that the criticisms I made of his 4 February 2026 applications might lead to a reasonable apprehension that I will not bring an impartial mind to the resolution of the questions to be decided at the trial. I do not think that follows.
30. The plaintiff, ultimately, submits that the particular occurrences at previous hearings and in the first reasons:

Taken together ... evidence an animus towards Mr Badat and an attitude towards his case verging on prejudgment against that case which the [Observer] can rationally and reasonably apprehend.[25]

1. To those submissions must also be added, as I identified earlier, the second proposition advanced of pre-judgment on the double-might test.
2. With respect, I do not think there is any basis on which the Observer might reasonably apprehend that I might not bring an impartial mind to the resolution of issues at trial.
3. The merits of the plaintiff's case have not been determined, and I do not accept that I have expressed any views, tentative or otherwise, that the Observer might reasonably take to be an expression of my view on the ultimate merits.
4. It is as well to bear in mind that, with the benefit of the parties' opening submissions, which I have had since 25 February and 11 March 2026 respectively,[26] it may be seen that central to the determination of the plaintiff's case are the questions he identified in [7] of the Plaintiff's Submissions.
5. Those questions will obviously call for a dispassionate, if not somewhat dry, analysis of the Contaminated Sites Act 2003 (WA).
6. It might be thought that is suggestive of an even greater distance between any criticisms made of aspects of the plaintiff's conduct of interlocutory steps in the matter with an apprehension that those criticisms will subconsciously interfere with a dispassionate analysis of the Contaminated Sites Act.
7. I have taken note of those passages from the cases that the plaintiff referred me to as to what we know is the difficulty that subconscious bias is, definitionally, subconscious, and may leach into a consideration of the merits. Notwithstanding those clear matters, I do not consider this to give rise, on the double-might test, to that apprehension.

1. I return now to the three parts of the application of the relevant test.
2. The first of these is the identification of the relevant factors, which, it is said, might lead me to resolve the question other than on its legal and factual merits. The first factor is the question of whether I have animus or antipathy towards the plaintiff because of the conduct of the proceedings to date. The second factor is whether in the matters I have identified, I have pre-judged - as in expressing the view - that BP has a viable or operative defence.
3. With respect, I do not think that the plaintiff has succeeded in identifying either of those factors operating here.
4. The second part to the application of the test is that there is to be an articulation of the logical connection between that factor or factors and the apprehended deviation from deciding the question on its merits.
5. I have great difficulty in understanding that even if I am wrong about the first part, in terms of the animus or antipathy, that there is any logical connection between that and the determination of the merits.
6. I would accept that if I have pre-judged BP's defence, then there would be an articulation of the logical connection, but I do not accept that is the case.
7. Turning then to the reasonableness of the apprehension, of course, what I have said in effect has already disposed of this, but in the circumstances where the matters relied upon have occurred in case management proceedings and where they appear to have no particular connection to the merits of the plaintiff's case, then I do not consider that the Observer would reasonably apprehend that I will not bring an impartial mind to the resolution of the question.
8. In those circumstances, I would dismiss the application made by the plaintiff by his minute of proposed orders filed 16 March 2026.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] The defendant filed submissions in the afternoon of 17 March 2026 (Defendant's Submissions).

[2] SunshineLoans [1] (Gageler CJ & Gleeson J).

[3] SunshineLoans [1] (Gageler CJ & Gleeson J).

[4] SunshineLoans [40] (Gageler CJ & Gleeson J), [178] (Beech-Jones J).

[5] Barakat v Goritsas [No 2] [2012] NSWCA 36 [13]

[6] Bodycorp Repairers v Holding Redlich [2018] VSCA 17 [85] (Whelan, Santamaria JJA & T Forrest AJA).

[10] As defined in the first reasons at [160].

[17] Defendant's outline of submissions filed on 21 January 2026: Folio 249.

[18] Plaintiff's minute of proposed orders filed on 21 January 2026: Folio 254.

[23] As defined in the first reasons at [2].

[26] Plaintiff's opening submissions filed 25 February 2026 and defendant's opening submissions filed 11 March 2026.