It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson (1976) 136 CLR 248 and Livesey (1983) 151 CLR 288 has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be 'firmly established': Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 553-554 ; Watson (1976) 136 CLR at p 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 at p 14; .. . Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."
13 The point made by Mason J that a judicial officer should not recuse without adequate cause was exemplified in Re Polites; Ex parte The Hoyts Corporation Pty Ltd (1991) 173 CLR 78 where Brennan, Gaudron and McHugh JJ ordered that a member of the Australian Industrial Relations Commission hear and determine a particular industrial dispute. The member had disqualified himself from sitting as a member of the Full Bench as he had tendered advice to one of the parties whilst he was in practice as a solicitor. Their Honours considered that, as the advice given was not connected with the dispute before the Full Bench of the Commission, the member ought not to have disqualified himself. Their Honours referred to The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring CO Pty Ltd (1953) 88 CLR 100 where Dixon CJ, Williams, Webb and Fullagar JJ said, at p 116:-
"But when bias of this kind is in question, as distinguished from a bias through interest, before it amounts to a disqualification it is necessary that there should be strong grounds for supposing that the judicial or quasi-judicial officer has so acted that he cannot be expected fairly to discharge his duties. Bias must be 'real'. The officer must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons. It has been said that 'preconceived opinions - though it is unfortunate that a judge should have any - do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded', per Charles J, Reg v London County Council; Ex parte Empire Theatre (1894) 71 LT 638, at p 639."
14 Levine J agreed with Magistrate Rheinberger that the earlier proceedings concerning Mrs Klewer, with which his Worship had been concerned, did not raise any reasonable apprehension that his Worship would not bring to bear the impartiality expected of him. I agree with his Honour's remarks and need not elaborate on them. Levine J also considered that the complaint to the Independent Commission Against Corruption provided no adequate basis for the Magistrate to disqualify himself. Levine J said:-
"Without doubt no litigant whether represented or otherwise should consider that the making of a complaint to an investigatory body such as ICAC or the Judicial Commission about a Judge hearing that litigant's case will automatically involve that Judge self-disqualifying. The reasons are obvious. It would be a mechanism of much mischief in the administration of justice if that course could be taken with such facility."
15 I agree with the view which his Honour expressed, particularly in the circumstances of the present case. From what counsel for Mrs Klewer said at the hearing on 5 December 2001, it appears that the complaint was directed generally to the judicial officers and staff of the Local Court at Coffs Harbour and to the New South Wales Police Service at Coffs Harbour and alleged a climate of hostility and bias rather than being directed to particular matters concerning Magistrate Rheinberger. Counsel referred to a non-criminal conspiracy against Mrs Klewer. Unsubstantiated allegations of this type made by disappointed litigants provide no basis upon which a judicial officer, who has been allocated to a particular matter, should recuse.
16 Thus, the position was that neither the previous matters which Magistrate Rheinberger had had with Mrs Klewer nor the complaint to the Independent Commission Against Corruption provided grounds upon which his Worship ought to have disqualified himself. Nor did a reasonable apprehension of bias arise from the fact that Hill J had ruled that another magistrate was disqualified from hearing further matters concerning Mrs Klewer. The factors which applied in that case did not apply to Magistrate Rheinberger. Nor did the transfer of other matters involving Mrs Klewer to the Downing Centre by Magistrate Rheinberger provide a reasonable apprehension that the Magistrate would not be impartial in the proceedings before him. The Magistrate made it plain that his hearing of the Social Security case would prevent him from dealing with the other matters in which Mrs Klewer was involved.
17 However, counsel submitted that a reasonable apprehension of bias arose from the Magistrate's remarks, which I have set out. Counsel referred to the principle that the conduct must be judged from the point of view of a fair-minded lay observer. In Johnson v Johnson (2000) 201 CLR 488 at 492-493, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ expressed the principle in this way:-
"It is not contended that Anderson J was affected by actual bias. It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide eg, Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 …; Livesey v NSW Bar Association (1983) 151 CLR 288; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41.
That test has been adopted, in preference to a differently expressed test that has been applied in England cf Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done cf R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259, per Lord Hewart CJ. It is based upon the need for public confidence in the administration of justice. 'If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision' R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263, per Barwick CJ, Gibbs, Stephen and Mason JJ. The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial' Vakauta v Kelly (1988) 13 NSWLR 502 at 527, per McHugh JA, adopted in Vakauta v Kelly (1989) 167 CLR 568 at 584-585, per Toohey J.
Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge Webb v The Queen (1994) 181 CLR 41 at 73, per Deane J, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice."
18 Levine J did not find that a reasonable apprehension of bias arose from the Magistrate's remarks of 31 July 2001. I agree with his Honour. Although, his Worship's remarks were somewhat elliptical, their only possible meaning was that, as the Magistrate was part heard in relation to the Social Security case, he would transfer the other matters to Sydney to be dealt with by other magistrates. No inference could be drawn from the remarks that the Magistrate would not bring an impartial, unprejudiced mind to the matter which he retained.
19 However, Levine J considered that a reasonable apprehension of bias arose from remarks of Magistrate Rheinberger in the last paragraph of his reasons of 5 December 2001, which I have set out above. Levine J said:-
"I am troubled by his Worship having disposed as it were of other matters yet coming to the view represented in the elliptical paragraph of his reasons which I have cited. Exceptionally, and I cannot stress that too strongly, in that context, what his Worship said leads to the standard of reasonable apprehension to which the courts have referred being met and, accordingly, I direct that those proceedings proceed no further before him."
20 In my view, the last paragraph of his Worship's reasons raised no apprehension of bias on his part. He had already made it clear that his handling of the proceedings in which Mrs Klewer had been involved did not, in his view, raise any reasonable apprehension of bias. In this circumstance, his Worship's remarks did not suggest that, in his view, there was any reasonable apprehension of bias. His Worship simply referred to what he regarded as "good policy". His Worship was incorrect in that view for it is not good policy and certainly not appropriate that a judicial officer should disqualify himself just because one of the parties before him has lodged a complaint with the Independent Commission Against Corruption. A judicial officer should disqualify himself only if there are facts which raise a reasonable apprehension of bias on his or her part. Nevertheless, the reference to "good policy" did not suggest that Magistrate Rheinberger would fail to be impartial and unprejudiced in his handling of Mrs Klewer's case. Indeed, the reference to what he regarded as good policy showed that the Magistrate kept in the forefront of his mind the need to be and to be seen to be without bias.
21 It follows, in my view, that the orders made by Levine J should be set aside and that, in lieu thereof, it should be ordered that the application to the Court be dismissed with costs. The first respondent , Lucy Klewer, should pay the costs of the appellant and should have a certificate under the Suitors' Fund Act if qualified.