5 I concluded my judgment by saying that "my conclusions in respect of the visual impact of the proposed Rose Bay Marina are sufficient to lead to dismissal of the appeal and refusal of the development application": at [184].
6 I understand that for the third respondents the visual impact of the Point Piper Marina is an important issue, perhaps the issue with which they are primarily concerned. The third respondents say that the position here is stark, that the development proposed is the development in respect of which on the prior occasion I said the Point Piper Marina would not have an unreasonable visual impact, and that this is the issue they seek to argue in the present appeal. It appears to be common ground that the proposed structure for the Point Piper Marina in the present Point Piper Marina appeal is close to identical to that which was the subject of consideration on the earlier occasion.
7 The test of apprehended bias was stated in Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337 at [6] - [7] as follows (omitting citations):
"[6] …a judge is disqualified 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. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
[7] …The question is one of possibility (real and not remote), not probability…."
8 The hypothetical fair-minded lay observer is one who is properly informed but is not presumed to have a detailed knowledge of the case: Johnson v Johnson [2000] HCA 48, (2000) 201 CLR 488 at [13].
9 The third respondents fasten upon the application of the apprehended bias principle to a pre-judgment case in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411. By a 3-2 majority, the Court of Appeal found that the trial judge, having heard the first of a number of related proceedings, should not hear any further proceedings. The third respondents refer in particular to the judgment of Meagher JA at 448 - 449, who reluctantly regarded himself as bound to join the majority, and submit that it is sufficient to give rise to a perception of pre-judgment that a judge has determined an issue which arises in a later case. In my view, the case is distinguishable. It is important to read the case in the context of its circumstances. The circumstances were that the further proceedings raised the same issues, which depended or might depend upon the evidence of the same witnesses in respect of whom the judge had made adverse findings either of fact, or upon their credit or had commented adversely upon their recollection or commercial integrity: at 426 and 432. Mahoney JA, in the majority, said that he confined what he had to say to the issues of fact and credibility of the kind there in question: at 437. It is in that limited context that Mahoney JA's later statement is to be understood: that there would be an unacceptable appearance of pre-judgment if the judge previously dealt with the issue of fact or credibility which would be before him in the subsequent case: at 438.
10 In Abraham v St Marks Orthodox Coptic College (No 4) [2008] NSWSC 1031 at [26] Rothman J said that ANI v Spedley involved a series of cases in which identical issues arose and in which, in the first such case, the judgment depended on adverse findings on the credit of witnesses involved in the corporation; that finding was central to the judgment; and all other proceedings depended on the same evidence from the same witnesses called by the corporation.