Dillon (a pseudonym) v The Queen [2014] VSCA 164

2 The complaints in relation to the judge's conduct fall into three groups. The first concerns remarks made on the final directions hearing. The second concerns the revocation of bail. The third concerns conduct of the judge in relation to the evidentiary basis for the prosecution case.

3 In relation to remarks made at the final directions hearing, when the matter was first put to this Court on behalf of the applicant what was asserted to have occurred was the following:

After discussion of pre-trial issues, the judge enquired of the first accused's counsel whether the matter would really proceed as a trial. When informed that it would, he said he would bear that in mind when he sentenced that accused. He repeated the question and the comment to the following accused.

4 When the transcript and audio visual recording of the hearing was obtained, it became clear that that is not what had happened. In fact, in the course of an interchange which I think is fairly described as 'conversational' as to whether the respective counsel were 'positive' that the matters would be proceeding to a contested trial the judge observed:

These will all be remembered, of course, on the plea.

5 There is no indication of any adverse reaction to that comment by any of the counsel present. Priest JA has suggested the comment was probably an attempt at humour. I would describe it as flippant.

6 The interpretation placed upon what was said by the applicant initially was entirely unwarranted. Once the transcript had been obtained and it was clear what had been said, counsel for the applicant had little, if any, further submission to make about that matter.

7 In relation to the revocation of bail, the trial judge was somewhat peremptory. It seems to me from the transcript that the judge himself then realised that he had taken counsel by surprise. His attempts to redress that position were not as full as they might have been, but there is no basis, in my view, for a conclusion of apprehended bias. I do not accept that the judge was wrong in taking the view that the issue of bail had taken on a very different complexion consequent upon the guilty plea. The substance of that matter was not argued before us.[2] I agree with Priest JA's conclusion that the grounds based upon this complaint should not be upheld.

8 In relation to the ground concerning the judge's conduct relating to the evidentiary basis for the prosecution case I agree with Priest JA and have nothing to add.

9 On 1 August 2014, the Court dismissed an application for review of a trial judge's decision refusing to certify that an interlocutory decision - the refusal of the judge to disqualify himself for apprehended bias - was of sufficient importance to the trial to justify it being determined on an interlocutory appeal. The Court indicated that it would later provide reasons. These are my reasons for joining in the order dismissing the application.

10 As I will shortly describe in more detail, the applicant was arraigned in the

County Court on an indictment which charges him with kidnapping (one charge, charge 1), false imprisonment (two charges, charges 2 and 10) and theft (one charge, charge 11). Six others are also facing trial on the same indictment on a variety of charges, including kidnapping and false imprisonment.[3] With respect to aspects of the offending, the prosecution case is one of concert or aiding and abetting.

11 When arraigned on 30 July 2014, the applicant pleaded guilty to charge 10, false imprisonment, but not guilty to charges 1, 2 and 11. A jury was empanelled that day and the trial is proceeding.

12 The present application was made pursuant to s 296 of the Criminal Procedure Act 2009 ('the Act'). It arose thus. On 31 July 2014, the applicant's counsel asked the judge to disqualify himself for perceived bias. The judge declined. When asked to certify under s 295(3) of the Act that his decision was of 'sufficient importance to the trial to justify it being determined on an interlocutory appeal', the judge refused to do so. The application in this Court sought to review that refusal to certify.

13 As expressed in the applicant's Notice, the grounds for review were:

An application was made to the trial judge that he disqualify himself on the basis of apprehended bias. The application was refused.

An application was then made for a certificate under section 295(3) of the Act. That application was refused without any argument being heard or authority considered.

14 In anticipation that this Court might grant leave to appeal under s 296(4)(b) of the Act, the applicant expressed the putative grounds of appeal as follows:

Application was made on behalf of the appellant for the trial judge to disqualify himself on the basis of apprehended bias.

The particulars of the apprehended bias were:

1. Misstatement of principle at Final Directions Hearing.
2. Prejudging of guilt and expressing that view in court at the Final Directions Hearing.
3. Prejudging of guilt and expressing that view in court during my Trial so far.
4. Failing to understand the applicant's plea of not guilty in circumstances in which the judge is not aware of the relevant evidence.
5. Revoking the applicant's bail without any notice and without affording the applicant any opportunity to be heard on that issue.
6. Ruling that the applicant was not entitled to a hearing on the question of bail.
7. Failing to consider or apply sections (4)(b) and (4)(c) of the Bail Act.
8. Failing to state adequate reasons for the revocation of the applicant's bail.
9. Relying on incorrect reasons in revoking the applicant's bail.
10. Failure to consider correct legal principle in respect of the issue of bail.
11. Departing from the judge's role by inviting the prosecution to include new evidentiary bases on which the prosecution might rely.

15 The grounds might conveniently be grouped into three categories - grounds 1 to 4 relate to observations made by the trial judge at a directions hearing on 26 May 2014; grounds 6 to 10 concern the judge's decision to revoke the applicant's bail on 30 July 2014; and ground 11 is concerned with certain observations that the judge made about joint criminal enterprise. Although grouped into three categories, counsel for the applicant accepted that the grounds were complimentary, in the sense that he could only succeed on the grounds when taken in combination. In my opinion, none of the grounds has substance whether viewed alone or in combination with others.

16 As I have said, the applicant asked the judge to certify pursuant to s 295(3)(a) of the Act, but his Honour refused to do so. Thus in determining the application, this Court is required, by s 296(4) of the Act, to 'consider the matters referred to in section 295(3)'; and 'if satisfied as required by section 297, [the Court] may give the applicant leave to appeal against the interlocutory decision'.

17 Since the interlocutory decision does not concern the admissibility of evidence, pursuant to s 295(3)(b) the Court must be satisfied 'that the interlocutory decision is ... of sufficient importance to the trial to justify it being determined on an interlocutory appeal'.

(1) Subject to subsection (2), the Court of Appeal may give leave to appeal against an interlocutory decision only if the court is satisfied that it is in the interests of justice to do so, having regard to -

(a) the extent of any disruption or delay to the trial process that may arise if leave is given; and

(b) whether the determination of the appeal against the interlocutory decision may -

(ii) substantially reduce the time required for the trial; or

(iii) resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or

(iv) reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial; and

(c) any other matter that the court considers relevant.

(2) The Court of Appeal must not give leave to appeal after the trial has commenced, unless the reasons for doing so clearly outweigh any disruption to the trial.

19 Before proceeding further, I should briefly note some key events:

20 August 2012: Date of commission of the alleged offences.

22 August 2012: The applicant was bailed from the Melbourne Magistrates' Court on kidnapping and other charges. Bail was not opposed.

9 April 2013: The applicant was committed to stand trial and bailed with conditions. Bail was not opposed.

26 May 2014: The applicant appeared before the trial judge on a final directions hearing. The judge remarked that the fact that the accused were contesting a trial 'will all be remembered, of course, on the plea'.

28 July 2014: The matter was listed for trial. One of the co-accused, 'SP', pleaded guilty to false imprisonment. Further hearing of her case was adjourned to 15 September 2014 and her bail extended. The applicant and co-accused were arraigned. The applicant's counsel applied for a separate trial.

29 July 2014: Discussion proceeded before the trial judge. The applicant foreshadowed a plea of guilty to charge 10, false imprisonment.

30 July 2014: A jury was empanelled. The applicant pleaded guilty to charge 10, false imprisonment, but not guilty to charges 1, 2 and 11. At the end of the day the applicant was remanded in custody.

31 July 2014: Counsel for the applicant made application that the judge disqualify himself for apprehended bias. The judge refused. Counsel then sought a certificate under section 295(3) of the Act. The judge refused. Notices seeking review of the trial judge's refusal to certify, and seeking leave to appeal against the judge's decision not to disqualify himself, were filed in the registry of this Court.

20 The applicable principles concerning apprehended bias were conveniently digested in AJH Lawyers v Careri and Others,[4] where the Court (Warren CJ, Hansen JA and Almond AJA) said:[5]

The relevant principles governing the issue of apprehended bias are well-settled. Essentially, there are eight relevant principles.

First, when one of the grounds of appeal is based on actual or apprehended bias, the Court of Appeal needs to deal with that ground first. If the appellant establishes actual or apprehended bias, the Court will set aside the decision below and remit the matter back.[6] This is so even if the Court is satisfied that the decision below is correct on the merits.[7]

Secondly, as noted in Antoun,[8] judges should not 'too readily accept recusal because a party has demanded it'.[9] Further, as held in Ebner,[10] '[j]udges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. ... If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.'[11] That being said, the principle that a judge should not disqualify him or herself too readily is not a 'blanket that smothers the effect of disqualification where it has already arisen'.[12]

Thirdly, the test for a reasonable apprehension of bias was stated in Johnson[13] as being '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'.[14] The word 'might' in the phrase 'might not bring an impartial and unprejudiced mind' was clarified in Ebner as referring to 'possibility (real and not remote), not probability'.[15] On the basis of Ebner, where, as in this case, 'the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge'.[16]

Fourthly, the apprehension in question is apprehension that the judge will not decide the case impartially, not merely an apprehension that he or she 'will decide the case adversely to one party'.[17]

Fifthly, the application of the test involves two steps. The first step is 'the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits'.[18] The second step is the 'articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits'.[19] Contrary to AJH Lawyers' submission,[20] the two-step approach is applicable to cases of apprehended bias on the ground of pre-judgment.[21] In such a case, the matter to be identified in the first step is the conduct of the judge said to give rise to apprehension of bias. And the logical connection that needs to be articulated in the second step is the logical connection between the conduct of the judge and the feared prejudgment of a question the judge is required to decide.[22]

Sixthly, 'the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer'.[23] The fictional lay observer 'is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge'.[24] Yet the fictional observer is taken to understand the dynamics of modern judicial practice. Modern judges 'are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them'.[25] '[T]he expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias'.[26]

Seventhly, '[a] line is drawn between forthright and robust indications of a trial judge's tentative views on a point of importance in a trial and an impermissible indication of prejudgment that has the effect of disqualifying the judge from further conduct of the proceedings'.[27] A key factor determining whether that line has been crossed is the extent to which the views expressed by the judge appear to be final rather than merely tentative.[28]

Finally, ['j]udges do not have to devote unlimited time to listening to unmeritorious arguments. Sometimes, a brief hearing will suffice'.[29] That having been said, when a party makes an application, the judge must normally give the party some reasonable opportunity to make submissions in support of that application.[30] This is so even if the judge's preliminary view is that the application will be unmeritorious.[31] If the judge refuses an application before receiving any submissions, the impression created by that conduct is not erased if the judge, after having announced his or her decision, agrees to listen to the party's submissions under sufferance.[32]

Proposed grounds 1 to 4 - remarks on the directions hearing

21 Grounds 1 to 4 concern remarks made at a directions hearing on 26 May 2014.

22 The hearing was for the purposes of giving final directions before the trial, which was fixed to commence before the judge on 28 July 2014. His Honour inquired of counsel assembled for the various accused - 'Are they all going to run, starting with you?'. He asked each of the counsel individually whether his or her client was 'a definite starter' or a 'runner', which I take to be an inquiry as to whether the particular client was intending to contest the anticipated trial, or was going to plead guilty. Probably attempting humour, the judge remarked in the course of these inquiries, 'These will be remembered, of course, on the plea'.

23 The interpretation I would attach to the last remark is that the judge was saying that when it came time to do 'the plea' (that is, the plea for leniency following conviction), it would be 'remembered' that the accused chose to run a trial rather than to plead guilty. In other words, the decision to contest the trial would have ramifications following the inevitable conviction of the accused.

24 The judge's remark was probably jocose. Humour can sometimes relieve a strained atmosphere in a courtroom, but the occasions for its use must be sparing lest the judge run the risk - apparently realised here - that a remark intended by the judge to be light-hearted or funny be misinterpreted.[33]

25 Applying the governing principles, however, in my view there is little possibility that the fictional, fair-minded and fully-informed lay observer might reasonably apprehend from the judge's remarks that he might not bring an impartial and unprejudiced mind to the resolution of any question that he in future would be required to decide, or would not otherwise afford the applicant a fair trial. I do not ignore that the judge at different times subsequently to the impugned remarks made a number of comments expressing his view that the prosecution case was a strong one. Any observations made by the judge, however, were not so intemperate as to raise the spectre of ostensible bias. In my view, the fictional, fair-minded and fully-informed lay observer - that is, someone not facing trial for serious offences, with the possibility of significant punishment upon conviction - would see the judge's remarks on the directions hearing as an attempt at comedy. I am fortified in my opinion by the fact that counsel for none of the other accused asked the judge to disqualify himself based on anything the judge said. Moreover, the Court having viewed the audio visual recording of the hearing, it seems clear that none of the assembled counsel demonstrated any adverse reaction to his Honour's remarks at the time that they were uttered.

26 Whether taken alone or in combination with the other matters about which complaint is made, what fell from the judge on the directions hearing cannot legitimately found an apprehension of bias.

Proposed grounds 5 to 10 - the revocation of bail

28 Of more moment is the manner in which the judge dealt with the issue of the applicant's bail.

29 As I have noted, the jury was empanelled in the morning of 30 July 2014. That afternoon, leading counsel for the prosecution opened the prosecution case, and counsel for five of the accused (including the applicant) responded.[34] Counsel for one of the accused was yet to address the jury in response to the prosecution opening when the judge decided to adjourn for the day. After the jury had left the court, the judge peremptorily announced that the applicant's 'bail will now be revoked since he's pleaded guilty to the offence so he can go into custody'.

30 Having revoked the applicant's bail without having given notice of his intention to do so, the judge turned to address other counsel and engaged with counsel in a discussion concerning aspects of the law relating to the offence of kidnapping, until counsel for the applicant sought an opportunity to make submissions. The following extracts capture the tone of the exchanges between counsel and the trial judge, and the atmosphere prevailing:

HIS HONOUR: All right. [Counsel], you want to say something?

[COUNSEL]: Yes I certainly do, Your Honour. I want to address the issue of my client's bail and why it should be revoked at this stage.

HIS HONOUR: He's pleaded guilty to a serious criminal offence.

[COUNSEL]: Well he has but with respect, Your Honour, Your Honour hasn't heard anything about it at this stage in terms of what he's pleaded guilty to.

HIS HONOUR: All I know is he's pleaded guilty to one count of false imprisonment.

[COUNSEL]: Yes.

HIS HONOUR: And that he has prior convictions. I don't need to know

[COUNSEL]: He doesn't have prior convictions.

HIS HONOUR: Sorry, he doesn't, he's the only one who does.

[COUNSEL]: That's right. So

HIS HONOUR: Yes, yes, sorry.

[COUNSEL]: His status in terms of bail hasn't changed under the [Bail]Act because the same test applies whether he's pending sentence or pending

HIS HONOUR: I was actually tempted to in fact revoke the bail of everybody at the commencement of this trial because it seemed to me that we'd reached the point where the Crown case is fairly strong but now - I haven't done that - but once your client pleaded guilty to that offence it's sensible which in the circumstances he will almost inevitably get a custodial sentence, won't he?

[COUNSEL]: Well I don't see how Your Honour can say that and I don't understand that [SP's] bail was revoked.

HIS HONOUR: [SP's] bail should have been.

[COUNSEL]: Sorry?

HIS HONOUR: Thank you for reminding me. Thank you.

[COUNSEL]: I wasn't trying to do you a favour.

HIS HONOUR: No, no, I forgot, I cleanly forgot.

[COUNSEL]: Well the fact is that her bail

HIS HONOUR: We've got to make sure that she comes

[COUNSEL]: was extended and my client's was revoked and he didn't even get a hearing on the issue.

HIS HONOUR: It was extended by consent, wasn't it? That's right, the bail

[PROSECUTOR]: Yes.

HIS HONOUR: Do you consent

[PROSECUTOR]: Her position was different, Your Honour.

HIS HONOUR: I agree that his [sic.] position is different to [Dillon]. [Dillon] faces significantly more significant allegations as well, on the current trial, so you've got the state of evidence against him, combined with an acknowledgement of involvement.

[COUNSEL]: No, he's

HIS HONOUR: Everybody - everybody else is in custody Mr - who have pleaded to this - are in custody.

[COUNSEL]: With respect, Your Honour, so what. The fact of the matter is, he was on bail. What's changed is the fact that he's pleaded guilty to a false imprisonment. Someone else who's pleaded guilty to a arguably worse false imprisonment has their bail extended, and without hearing, he gets his bail revoked, and in my submission, it's - it's entirely unfair what Your Honour has done.

HIS HONOUR: Well, what do you want to say to me. Why shouldn't I revoke his bail.

[COUNSEL]: Because the test hasn't changed.

HIS HONOUR: Well, forget about tests.

[COUNSEL]: All right and

HIS HONOUR: Where at the stage where I've heard a prosecution opening of your client being involved in serious criminal behaviour. There seems to be - as I've said a couple of times - substantial evidence against him in relation to the other matters, for which he's still on trial, I accept that, but he's now admitted responsibility in the venture before the court, to at least a limited degree, but it's a significant degree - and - that's a change of position in relation to what his position had been in the past. Now, that's, in my view, sufficient reason to revoke his bail.

[COUNSEL]: Well the false imprisonment that you're talking about is one that's of very short duration. That's what he's pleaded guilty to. ...

31 After some further discussion with counsel for the applicant, the judge - somewhat belatedly - sought the views of counsel prosecuting, who did not oppose bail:

HIS HONOUR: ... Well, perhaps I'll go to the prosecutor first of all. Do you - what do you say about the issue of bail, Madam Prosecutor, in relation to this man.

[PROSECUTOR]: It's a matter for Your Honour, sir, but I do say that [SP] was in a very different position, and that she had no active physical involvement with [the victim] ...

32 Counsel for the applicant continued to press the trial judge, until his Honour acknowledged that he had taken counsel by surprise:

HIS HONOUR: You can renew your - I know you don't like it, but you can renew your application at some later stage if you've got material. I may have taken you by mistake - but surprise, but I am proposing to put him back with the others who were charged in this and remand him in custody at this stage.

33 I am in no doubt that the judge should not summarily have revoked bail without giving notice of the possibility that he would do so - particularly absent any application by the prosecution - and that the applicant thus was denied procedural fairness with respect to the issue of revocation. Were the judge's peremptory revocation capable of founding an apprehension of bias, it would not have mattered, of course, that he later grudgingly heard counsel on the question of bail. In my opinion, however, the mere denial of procedural fairness on the issue of bail is not sufficient to found an apprehension in the lay observer that the judge might not deal appropriately with issues subsequently arising in the trial, or might not ensure a fair trial of the applicant. The judge would be well-advised, however, if minded in future possibly to make a significant order of his own motion, to give appropriate notice of that possibility to the parties and seek their submissions.

34 Moreover, the judicial mandate to grant leave to appeal an interlocutory decision s 297 is only enlivened if the Court is satisfied that it is in the interests of justice to do so, having regard to the extent of any disruption or delay to the trial process that may arise if leave is given; and whether the determination of the appeal against the interlocutory decision may resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial, or reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial. Further, the Court of Appeal must not give leave to appeal after the trial has commenced, unless the reasons for doing so clearly outweigh any disruption to the trial. As the applicant's counsel conceded on the hearing of the application before this Court, the applicant had alternative remedies available to him with respect to the judge's denial of procedural fairness concerning bail. The existence of those alternative remedies is another reason for the refusal of the application to this Court.

35 Before leaving these grounds, I should note that the applicant's counsel sought to tender an affidavit sworn by his instructing solicitor concerning the applicant's medical condition which, it was argued, was relevant to the issue of bail. The material concerning the applicant's medical condition was not put before the trial judge when he announced his intention to revoke bail, because the applicant's advisors were taken by surprise. It was not appropriate for this Court to receive the affidavit, and we did not do so. I note, however, that counsel leading for the prosecution indicated that she would place no obstacle to the material being placed before the trial judge on a renewed application for bail. It is inconceivable that the judge would not revisit the issue of bail in light of this material, given that it was his conduct which prevented its reception in the first place.

Ground 11 - new evidentiary basis for prosecution case

38 The prosecution case is, to a large extent, one of joint criminal enterprise, where the acts and declarations of co-accused may become admissible one against the other. It is enough to say that, giving a fair reading to the remarks of the judge impugned by the applicant, it seems plain to me that the judge is endeavouring to tease out how the case of joint criminal enterprise is put, and thus how the acts and statements of co-accused might be relevant and admissible. Nothing that the judge has said in that respect arguably crosses the line of judicial impartiality.

39 I cannot conclude without making one further observation.

40 The judge offered few reasons for refusing the application that he recuse himself. And when asked to certify under s 295(3) of the Act, his reasons were perfunctory. The following reflects the entirety of what his Honour said on the topic:

HIS HONOUR: ...Yes, [Counsel]?

[COUNSEL]: Your Honour, I seek a certificate under s.295 of the Criminal Procedure Act.

HIS HONOUR: What? Certify to go over the road?[35]

[COUNSEL]: Yes.

HIS HONOUR: No. All right? Anything else?

[COUNSEL]: I've got some authority on the point.

HIS HONOUR: I know. It's not a matter that in my view does, in any way, fall within the certificate provision.

[COUNSEL]: If Your Honour pleases.

41 One cannot discern from what the judge said why it was that he thought that the matter did not, 'in any, way, fall within the certificate provisions'. Although the reasons that a judge may give granting or refusing certification need not be elaborate, nonetheless they ought to reveal the process of reasoning leading the judge to a particular conclusion. The 'reasons' given by the judge in the present case were inadequate. Any judge similarly placed should regard themselves as required to do more.

42 For the foregoing reasons I joined in the order made on 1 August 2014.

[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[2] The judge referred to the fact that whilst s 4 of the Bail Act 1977 refers to 'pending sentence' its introductory words address the position of an 'accused'. In the course of argument before us reference was made to s 101(3) of the Sentencing Act 1991 which specifically addresses the position of release on an undertaking or remand in custody by a judge 'who is to sentence for an offence' and to Griffiths v The Queen (1997) 137 CLR 293, 305.

[3] A seventh co-accused, 'SP' pleaded guilty to one charge of false imprisonment on 28 July 2014, and is on bail pending sentence.

[4] (2011) 34 VR 236.

[6] Subject to qualifications not presently relevant: see, eg, Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568.

[7] Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577, [2] (Gummow ACJ), [117] (Kirby and Crennan JJ) ('Concrete'); Antoun v The Queen [2006] HCA 2; (2006) 224 ALR 51, [2]-[3] (Gleeson CJ) ('Antoun').

[8] Antoun [2006] HCA 2; (2006) 224 ALR 51, [34] (Kirby J).

[10] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 ('Ebner').

[11] Ibid [19] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[12] Antoun [2006] HCA 2; (2006) 224 ALR 51, [35] (Kirby J).

[13] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 ('Johnson').

[14] Ibid [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). See also Ebner [2000] HCA 63; (2000) 205 CLR 337, [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[15] Ebner [2000] HCA 63; (2000) 205 CLR 337, [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ)

[17] Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352 (Mason J).

[18] Ebner [2000] HCA 63; (2000) 205 CLR 337, [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[20] Appellant's (Plaintiff's) Outline of Submissions (30 November 2009), [12].

[21] Concrete [2006] HCA 55; (2006) 229 CLR 577, [110]-[111] (Kirby and Crennan JJ).

[23] Concrete [2006] HCA 55; (2006) 229 CLR 577, [177] (Callinan J).

[24] Johnson [2000] HCA 48; (2000) 201 CLR 488, [13] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ)

[26] Concrete [2006] HCA 55; (2006) 229 CLR 577, [112] (Kirby and Crennan JJ).

[27] Antoun [2006] HCA 2; (2006) 224 ALR 51, [29] (Kirby J).

[28] Antoun [2006] HCA 2; (2006) 224 ALR 51, [33] (Kirby J); Concrete [2006] HCA 55; (2006) 229 CLR 577, [177]-[178] (Callinan J).

[29] Antoun [2006] HCA 2; (2006) 224 ALR 51, [22] (Gleeson CJ)

[30] Ibid [2], [21]-[23] (Gleeson CJ), [28], [30], [48] (Kirby J), [53], [56] (Hayne J), [83], [86]-[87] (Callinan J).

[32] Ibid, [2] (Gleeson CJ), [36] (Kirby J), [87] (Callinan J).

[33] The Hon Murray Gleeson AC, in a paper delivered to the National Judicial Orientation Program, Sydney, 16 August 1998, The Role of the Judge and Becoming a Judge, sounded a note of caution about 'judicial humour':

... Some judges, out of personal good nature, or out of a desire to break the tension that can develop in a courtroom, occasionally feel it appropriate to treat a captive audience to a display of wit. Sometimes this is appreciated by the audience, but sometimes it is not. When it is not the consequences can be very unfortunate. Judges and legal practitioners may underestimate the seriousness which litigants attach to legal proceedings, and they can become insensitive to the misunderstandings which might arise if the judge appears to be taking the occasion lightly or, even worse, if the judge appears to be making fun of someone involved in the case. Without wishing to appear to be a killjoy, I would caution against giving too much scope to your natural humour or high spirits when presiding in a courtroom. Most litigants and witnesses do not find court cases at all funny. In almost ten years of dealing with complaints against judicial officers to the Judicial Commission of New South Wales I have seen many cases where flippant behaviour has caused unintended but deep offence.

[35] That is, make application to the Court of Appeal.