... such an argument could not form the basis of my disqualification in the light of the strong words of Mason J in Re J.R.L.; ex parte C.J.L. rejecting previous decisions of the judicial officer in question - without more - as a basis for disqualification. Both of Mr Crewdson's assertions may thus be dismissed instantly. I do not intend to be distracted from hearing this matter impartially by disqualifying myself when it would be wrong do so.
9 In supporting the general propositions described above Mr Crewdson made some additional factual assertions and slurs. They may be dismissed at once as being without foundation and indeed wrong. Thus, to the extent there is any suggestion of actual bias, it is rejected.
10 This is not the end of the matter. The unsubstantiated allegations are not only serious but malicious; put in a way that goes beyond anything which might have been justifiably undertaken in the legitimate interests of pursuing Mr Crewdson's case before the Court; and are potentially both legally scandalous and in contempt of Court. Mr Crewdson has abused the privilege of appearing before this Court and has done so by his most recent conduct during the course of my reading this judgment.
11 Having given the matter careful consideration, I have decided to adopt the same generosity of approach shown by Boland J in a similar application for disqualification brought by Mr Crewdson in these proceedings at first instance. That is, to regard the potentially contemptuous statements by Mr Crewdson in his written submissions as simply a poor and misguided choice of language, driven by his enduring, difficult circumstances.
12 However, the issue of contempt may have to be dealt with separately at a later date if the circumstances require and if there is a proper basis to do so. This will depend upon the future conduct of Mr Crewdson. Similarly, the material which is, in all likelihood, legally scandalous, may be removed from the Court file at a later date, once the Court has considered and determined the application for leave to appeal and the appeal (given the ultimate disposal of the application for leave to appeal this should not occur forthwith).
13 The application is refused.
14 PRESIDENT: I have had the significant advantage of hearing delivered the judgment of his Honour, the Vice-President in respect of the applicant's application for the Full Bench to disqualify itself which, of course, includes an application that his Honour disqualify himself.
15 I would respectfully associate myself with his Honour's reasons and would generally adopt them in respect of the disqualification application insofar as it applies to me.
16 However, because the application as to my sitting in this matter seems to travel somewhat further than that made as to the other members of the Full Bench, I should add some additional remarks. In my judgment in WorkCover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited [2000] NSWIRComm 65 I sought to distil the principles relevant to applications for disqualification. Although there are some differences between that case and this, the following extracts from paragraph [15] of that judgment are relevant:
[15] The judgment of Mildren J sets out relevantly the principles to be applied, except to the extent that some of the matters referred to in paragraph 6 of the extract have to be now considered as considerably qualified by the judgment of the High Court in Re Polites . For that reason, Professor Allars' paper provides a more contemporary and thus complete perspective. For present purposes, and notwithstanding some oversimplification, the principles derived from Professor Allars' article and the cases that have been referred to, may be summarised as follows:
(1) The test to be applied is that of reasonable apprehension of bias. A judge should not sit to hear a case if in all circumstances the parties or the public might entertain a reasonable apprehension that he or she might not bring an impartial and unprejudiced mind to the resolution of the question involved in it. However, it would be an abdication of judicial function for a judge to automatically disqualify himself whenever requested to do so by one party on the grounds of apparent bias, regardless of the wishes of the other party to the suit. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit. By acceding too readily to suggestions of appearance of bias, judges may 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. A judge therefore has a duty to disqualify himself or herself only for proper reason, namely, where there is an actuality of bias or the existence of grounds for reasonable apprehension of bias, and the judge equally has a duty in other circumstances not to disqualify himself or herself.
...
(3) In determining whether a fair-minded person would entertain a reasonable apprehension of bias, that person is expected to know the objective facts and the legal history of the matter, but not to have any individual knowledge of the judge concerned.