Eastman v Besanko [2009] ACTSC 144

...[I]t would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgement or bias ...

4. If the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case the system would soon reach a stage where for practical purposes individual parties could influence the composition of the bench. That would be intolerable (see per Gleeson CJ and McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 ('Ebner') at [20]).

5. If a decision-maker has pre-judged a case so as to be unable or unwilling to decide it impartially, that decision-maker's determination will be affected by actual bias (see Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 429 ('Gamaethige') at [79] per Stone J, with whose reasons Hill J agreed).

6. The appellant charges that I am guilty of actual bias.

7. A decision-maker will be biased if he or she does not approach the decision-making task entrusted to him with an open mind which is open to persuasion one way or the other.

8. Whilst the appellant charges that I am guilty of bias, he has also adverted to the position of the lay bystander in a way which seems to reflect a misunderstanding of the difference between bias and apprehended bias.

9. A judge is also to be 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. (Per Gleeson CJ and McHugh, Gummow and Hayne JJ in Ebner at [6]).

10. The application of the bias principle requires two steps. First it requires an identification of what it is said might lead a judge to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge has an 'interest' in litigation or an interest in a party to it will be of no assistance until the nature of the interest and the asserted connection with the possibility of departure from impartial decision making is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed. (Per Gleeson CJ and McHugh, Gummow and Hayne JJ in Ebner at [8]).

11. In my opinion nothing that has been advanced by the appellant as a reason why I should recuse myself from participating in the hearing and determination of this civil appeal constitutes bias or demonstrates any apprehension of bias on my part. I decline to recuse myself.

12. When a judge announces that he will continue to sit and gives reasons for doing so, he does not make an order (see per Samuels JA, with whose reasons for judgment Reynolds and Glass JJA agreed, in Barton v Walker (1979) 2 NSWLR 740 at 751).

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Graham.

Counsel for the Appellant: J G Renwick until approximately 4:04pm on 22 October 2009

Solicitor for the Appellant: Jackson Lalic Lawyers until approximately 4:04pm on 22 October 2009

The Appellant appeared in person from about 4:04pm on 22 October 2009.

Counsel for the Intervenor: J D Harris SC and D J C Mossop

Solicitor for the Intervenor: ACT Government Solicitor