Environment Protection Authority v Maules Creek Coal Pty Ltd

Land and Environment Court (NSW)|2023-09-14|Before: Pritchard J

The application for recusal

The defendant's evidence

In support of its recusal application, the defendant: 1. read the affidavit of Ms Tremlow dated 11 September 2023, referred to above at [22(2)]; 2. read the affidavit of Ms Zhao dated 11 September 2023, referred to above at [22(1)]; 3. tendered the transcript of the hearing before me on Friday, 8 September 2023; 4. tendered the email from the defendant's solicitor Ms Astridge sent 11 September 2023 at 2:08pm, referred to above at [21]; and 5. tendered the email from my associate to the parties sent 11 September 2023 at 3:00pm, referred to above at [19].

The prosecutor's evidence

The prosecutor foreshadowed tendering the transcript of yesterday's hearing once it became available. It has since become available, and to the extent it be necessary, has been received as an exhibit on the application.

The defendant's submissions

Mr Howard for the defendant commenced by referring to Ms Christie's email to my chambers sent on 14 August 2023, seeking permission to follow the resumed hearing by video link. The particular part of the email that caused the defendant concern was the statement at the end of the email: "as previously disclosed to her Honour, I am undertaking a law and science PhD and following these matters closely as potential case studies". The defendant then referred to the hearing of the mention on 8 September 2023, and the parts of the transcript extracted above at [16] and [17].
The defendant submitted that it was "evident" that whatever was said to me by Ms Christie "prompted [me] to terminate the meeting" and that was a matter that "suggests that [I] had some discomfort about this individual saying something to [me] … we don't know what".
The defendant next referred to the affidavit of Ms Twemlow as demonstrating "very clearly that Ms Christie has been an active campaigner against Whitehaven Coal and Maules Creek Mine", and to her role as a member the Leard Forest Research Node "one of the roles of which is to support regulators".
The defendant submitted, in relation to the Class 5 proceedings, that "the questions [I am] required to decide in this case include whether the defendant carried out licensed activities in connection with a mine blast fired on 20 August 2020 otherwise than in a competent manner. This will require [me] to make an evaluative judgment in a criminal case about whether [the defendant] carried out those activities, in essence, incompetently, as the prosecutor has alleged."
The defendant next took the Court to the following passages in Ebner v Official Trustee in Bankruptcy (Ebner) [3] (footnotes omitted): [6] Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge ( or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), 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 apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if 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 or juror. [8] The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) 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 (or juror) 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.
At [8], the Court set out the following two steps in applying the apprehension of bias principle: 1. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. 2. Second, 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 (or juror) 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.
In terms of the two-step process identified by the Court in Ebner, the defendant put its case as follows: 1. In relation to the first step and the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits, here that was said to be one of "association" in the broad categories of apprehended bias articulated by the Court in Ebner at [24] citing the decision of Deane J in Webb v The Queen [4] where his Honour "identified four distinct, though overlapping categories of case involving disqualification by reason of the appearance of bias: interest; conduct; association; and extraneous information." [5] In particular, that association was said to be the meeting in chambers with Ms Christie "given Ms Christie's interest and the discussion between [me] and Ms Christie in chambers on that day". 2. In relation to the second step, being an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits, the defendant submitted that that connection was that that my "impartiality may have been compromised unconsciously by something Ms Christie said or by some aspect of the interaction at the face-to-face meeting in [my] chambers."
The defendant also referred to the Court's consideration in Ebner of disclosure. The Court said at [69] and [70] (footnotes omitted): [69] As a matter of prudence and professional practice, judges should disclose interests and associations if there is a serious possibility that they are potentially disqualifying. It is common, and proper, practice for a judge who owns shares in a company which is involved in a case in which the judge is sitting to inform the parties of that fact and to give them an opportunity to raise an objection should they wish to be heard. In most cases, the outcome is that no objection is raised and, by reason of waiver, any potential problem disappears. One reason for the practice is that it gives the parties an opportunity to bring to the attention of the judge some aspect of the case, or of its possible consequences, not known to, or fully appreciated by, the judge. [70] It is, however, neither useful nor necessary to describe this practice in terms of rights and duties. At most, any "duty" to disclose would be a duty of imperfect obligation. A failure to disclose is relevant (if at all) only because it may be said to cast some evidentiary light on the ultimate question of reasonable apprehension of bias. A failure to disclose has no other legal significance. In particular it does not, of itself, give a litigant any right to have the judge desist from further hearing the matter or to have the ultimate decision in the matter set aside for want of procedural fairness.
In this case, the defendant submitted, in relation to the second step in Ebner, that my failure to disclose the circumstance of the interaction with Ms Christie in chambers "reached a point of realising, based on something she told [me], that the meeting should be terminated..." The defendant accepted that when on the following trial day, Ms Christie was mentioned in the evidence, I did "not twig" or "make the connection" when Ms Christie's name was mentioned. However, "a significant aspect of the deposition of Ms Zhao in her affidavit of 11 September [2023]…includes the circumstance that Ms Christie was present in the courtroom each remaining day of the hearing from 3 to 10 February [2023]". It was submitted that although I did not make the connection between Ms Christie's name as referred to in the evidence and the person who attended chambers, I "presumably was aware that that person was present in Court on each day of the hearing following [my] meeting with Ms Christie in [my] chambers."
It was submitted, "the fair-minded lay observer, on the basis of this facts of this case…would have regard to the non-disclosure as evidence which supports our position in respect of the second step in Ebner." Again, it was submitted that my interaction with Ms Christie "may have unconsciously compromised [my] impartiality". Accordingly, the defendant submitted that "the fair‑minded lay observer would infer from the facts that had [the defendant] not raised the matter with [me]…[I] would not have disclosed to the parties during the course of the trial that [I] had met with Ms Christie in chambers".
Whilst the defendant accepted that there was no discussion in chambers with Ms Christie about the substance of the matter, it submitted that it did not know what Ms Christie said to me, and "[w]hatever it was must have been something relating to her interest or the case sufficient to prompt [me] to know that the meeting should be terminated."
The next case referred to by the defendant was Charisteas v Charisteas, [6] a family law matter in which the application for recusal was on the basis that the trial judge had engaged in a number of communications with a barrister with whom the trial judge had a personal relationship appearing for a party throughout the course of "long-running" proceedings. At [12], the Court referred to Johnson v Johnson [7] and said: …while the fair-minded 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, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice".
The defendant submitted that here ordinary judicial practice would have been to disclose the meeting with Ms Christie in chambers.
At [14], the Court said: Indeed, given the timing and frequency of the communications between the trial judge and the wife's barrister, it cannot be imagined that the other parties to the litigation would have given informed consent to the communications even if consent had been sought, and it was not. The communications should not have taken place. There were no exceptional circumstances.
And at [15], the Court said: A fair-minded lay observer, understanding that ordinary and most basic of judicial practice, would reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of the questions his Honour was required to decide. The trial judge's impartiality might have been compromised by something said in the course of the communications with the wife's barrister, or by some aspect of the personal relationship exemplified by the communications. Accordingly, there is a logical and direct connection between the communications and the feared departure from the trial judge deciding the case on its merits.
Further, the Court considered the lack of disclosure on the part of the trial judge to be "particularly troubling", and that such lack of disclosure might "give the hypothetical observer reason to doubt the correctness of the claim by the wife's barrister that their communications did not concern "the substance" of the case, if the ambiguity inherent in that statement is not itself of sufficient concern." [8]
The defendant submitted that whilst the facts are very different here, in the present case the proposition is put in relation to the second step in Ebner that my "impartiality might have been compromised by something said by Ms Christie."
Finally, the defendant referred to Re JRL; Ex Parte CJL (JRL), [9] a case involving a dispute between a wife and husband as to the custody of a child. In that case, a court counsellor, who had furnished two reports in the proceedings, upon the Court contemplating the adjournment of the matter, approached the wife saying that an adjournment was outrageous. The counsellor subsequently attended the judge in chambers, and had some discussion about the case. Gibbs J said at 346 to 347 (footnotes omitted): It is a fundamental principle that a judge must not hear evidence or receive representations from one side behind the back of the other: see Kanda v. Government of Malaya. McInerney J. stated the practice as it is generally understood in the profession in Reg. v. Magistrates' Court at Lilydale; Ex parte Ciccone as follows: "The sound instinct of the legal profession - judges and practitioners alike - has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined." The principle, which forbids a judge to receive representations in private, is not confined to representations made by a party or the legal adviser or witness of a party. It is equally true that a judge should not, in the absence of the parties or their legal representatives, allow any person to communicate to him or her any views or opinions concerning a case which he or she is hearing, with a view to influencing the conduct of the case. Indeed, any interference with a judge, by private communication or otherwise, for the purpose of influencing his or her decision in a case is a serious contempt of court: see Halsbury's Laws of England, 4th ed., vol. 9, par. 28 and cases there cited.
And Mason J said at 350: It would be inconsistent with basic notions of fairness that a judge should take into account, or even receive, secret or private representations on behalf of a party or from a stranger with reference to a case which he has to decide…A judge must therefore be alert not to receive any such communication…
Whilst the defendant accepted that I did not know that Ms Christie was anything other than a law student, it was submitted to be "nevertheless an interaction of a private nature with someone whose interests are aligned against the defendant and, in relation to these proceedings, very much aligned with the success of the prosecution", that interaction having occurred in "the confines" of chambers during the trial of the defendant not disclosed to the parties either then or subsequently. In all the circumstances, it was submitted, the fair-minded lay observer might reasonably apprehend that I "might not bring an impartial mind to the resolution of the questions [I am] required to decide, particularly noting that they are evaluative judgments concerning whether or not [the defendant] has carried out activities in an incompetent manner."
Both the defendant and prosecutor relied on Polsen v Harrison (Polsen), [10] where the Court of Appeal at [46] distilled a number of principles, the following of which are relevantly extracted (footnotes omitted): (i) the application of the apprehended bias rule depends on the circumstances of each case; (ii) the fair-minded lay observer is an hypothetical figure, founded in the need for public confidence in the judiciary; … (iv) a finding of apprehended bias is not to be reached lightly; (v) this is because the training, tradition and oath or affirmation of a professional judge require him or her to discard the irrelevant, the immaterial and the prejudicial; (vi) the duty of a judge to disqualify for proper reasons is matched by an equally significant duty to hear any case in which there is no proper reason to disqualify; (vii) the fair-minded lay observer is presumed to approach the matter on the basis that ordinarily the judge will act so as to ensure both the appearance and the substance of impartiality, such that (viii) the rebuttal of this presumption requires a "realistic possibility" of the apprehension of bias which is not "fanciful or extravagant" but is based on "the established facts" of the matter; … (x) the inquiry as to whether a judge might reasonably be apprehended to deviate from bringing an impartial mind to the resolution of a particular issue "requires no prediction about how the judge … will in fact approach the matter" and "admits of the possibility of human frailty"; … (xiv) there is to be attributed to the fair-minded observer a broad knowledge of the material objective facts as ascertained by the appellate court [36] and the "actual circumstances of the case" as though the observer was sitting in the court; (xv) the fair-minded lay observer is taken to know the nature of the decision, the circumstances which led to the decision and the context in which it was made; (xvi) the context which must be considered includes the legal, statutory and factual context in which the decision is made, and "the totality of the circumstances", although the fair minded lay observer will not be taken to have a detailed knowledge of the law or legal principles; (xvii) the knowledge that the fair minded observer is taken to have is not limited to those facts and matters that were known at the time of an application for recusal and includes published statements made by the judge (whether prior, contemporaneous, or subsequent to the recusal application); (xviii) the fair-minded lay observer will not act on "insufficient knowledge", but will "inform himself [or herself]" of the relevant circumstances, without making "snap judgments"; (xix) the judge's own view about his or her ability to decide the case independently and impartially, as recorded in any reasons for dismissing a recusal application, carries little weight in the fair mind of the hypothetical lay observer, although (xx) statements in a recusal judgment regarding factual matters, including the particular context of the comments or conduct in question, may be relevant …

The prosecutor's submissions

The prosecutor submitted that the defendant's application for recusal on the ground of apprehended bias should be dismissed, relying on written submissions provided to the Court, as well as oral submissions made by Mr Leggat SC.
The prosecutor submitted that the defendant's application can be decided on the basis that the following facts will be accepted: 1. There is nothing in the evidence filed by the defendant which contradicts the version of events that has been put on the record by me at the mention on 8 September 2023, or in my associate's subsequent email to the parties of 11 September 2023. 2. Ms Christie has not been called as a witness in the Class 5 proceedings, and there has been no suggestion that the prosecutor has an obligation to call Ms Christie as a material witness. 3. Ms Christie's name appears in the evidence as set out in the affidavit of Ms Zhao. 4. Ms Christie has publicly expressed views that demonstrate that she opposes the continued operation of the Maules Creek Mine operated by the defendant, including blasting at the mine.
The prosecutor submitted that the following are also relevant facts to be taken into account in analysing the circumstances of this case: 1. There is no evidence that Ms Christie and I have had any interactions other than those described in the version that I placed on the record. 2. There is no evidence that Ms Christie provided or attempted to provide me with any information purported to be about the Maules Creek Mine that might be considered to be relevant to the trial, such that she gave me information relevant to the trial that is extraneous to the trial record.
The prosecutor noted the following further aspects of the apprehension of bias principle: First, to expand on the identified features of the hypothetical reasonable observer (in points (ii), (ix) and (xviii) [of Polsen v Harrison at [46]), the plurality in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 (at [12] and [14]), identified the features of the hypothetical reasonable observer. Such a person is taken to be reasonable and not entitled to make snap judgments. Kirby J said the observer is not a lawyer and yet he or she is neither a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Furthermore, the observer is intelligent and aware of the phenomenon of adjudication (CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 (CNY17) at [133] (Edelman J) and is neither complacent nor unduly sensitive or suspicious (CNY17 at [19] per Kiefel CJ and Gageler J).
In relation to an application for disqualification on the ground of apprehended bias, the prosecutor also referred to the two-step test articulated in Ebner at [8], and to the reiteration of that principle in Michael Wilson & Partners Ltd v Nicholls [11] at [31] and [67] where Gummow ACJ, Hayne, Crennan and Bell JJ said (footnotes omitted): [31] 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 (in this case, in 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. No party to the present appeal sought in this Court, or in the courts below, to challenge that this was the test to be applied. … [67] As pointed out earlier in these reasons, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been "the crystallisation of that apprehension in a demonstration of actual prejudgment" impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment.
In its written submissions, the prosecutor said: In both Ebner (at [8]) and Michael Wilson & Partners (at [63]), the plurality made it clear that the application of the apprehension of bias principle involves two steps. The first step is the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. The second is an articulation of the logical connection between that matter and the feared deviation from deciding the case on its merits. Accordingly, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. The question is not whether the judge has in fact prejudged an issue: Michael Wilson & Partners at [67].
In relation to the first step of the Ebner test, the prosecutor accepted that the defendant had identified the facts which were said might lead a judge to decide a case other than on its legal and factual merits.
In relation to the second step of the Ebner test, in its written submissions the prosecutor submitted that the defendant had fallen short of establishing a "logical connection" between the matter in the first step and the "feared deviation from decided the case on its merits". The prosecutor submitted that Ms Christie was invited into chambers on the basis of a misunderstanding and was quickly asked to leave when that misunderstanding was identified; and that there was no suggestion that I had sought out Ms Christie because she had any connection with the case or that I sought to obtain information from her. Further, the prosecutor submitted that there is no evidence that any information was communicated to me by Ms Christie, other than that which allowed me to identify that I had proceeded on the basis of a misunderstanding and terminated the interaction.
In its written submissions, the prosecutor submitted that however the facts are framed, there is no such logical connection between what occurred in the interaction between Ms Christie and me and any feared deviation from the course of deciding this case on its merits.
Orally, Mr Leggat submitted that the defendant's assertion in its oral submissions of "unconscious compromise" was a "very bold proposition". In the prosecutor's submission, there is no basis to conclude that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the question I am required to decide. In making that submission the prosecutor relied in particular on the following characteristics of the "hypothetical reasonable observer" as identified in Polsen at [46] (footnotes omitted): (ix) "neither complacent nor unduly sensitive or suspicious", the fair-minded law observer may have a level of scepticism as to professional pretensions, but will be cognisant of and vigilant against his or her own prejudices; … (xv) the fair-minded lay observer is taken to know the nature of the decision, the circumstances which led to the decision and the context in which it was made; (xvi) the context which must be considered includes the legal, statutory and factual context in which the decision is made, and the "totality of the circumstances", although the fair minded lay observer will not be taken to have a detailed knowledge of the law or legal principles; (xvii) the fair minded lay observer will not act on "insufficient knowledge", but will "inform himself [or herself]" of the relevant circumstances, without making "snap judgments";
The prosecutor also referred to the relevant qualities and duties of the judicial officer who is the subject of the application, as identified in Polsen at [46] including that: (iv) a finding of apprehended bias is not to be reached lightly; … (vi) the duty of a judge to disqualify for proper reasons is matched by an equally significant duty to hear any case in which there is no proper reason to disqualify.
The prosecutor submitted that any fanciful or speculative possibility of a lack of impartiality must be put to one side, and that the "reasonable fear" of the observer must be "firmly established". [12] In relation to the defendant's submission as to Ms Christie's role, as a member of the Leard Forest Research Node, "to support regulators in the investigation and prosecution of environmental non-compliances at the Maules Creek coal mine", the prosecutor submitted that "even if one accept[ed] that Ms Christie thought that her role was to support the EPA…that [did] not mean that the EPA accept[ed] that Ms Christie had that role". The prosecutor submitted that "the fair-minded lay observer would not speculate about…a fanciful relationship with the EPA; that is, that somehow the EPA [was] obtaining support from Ms Christie".
In relation to the fact that I did not previously disclose to the parties my interaction with Ms Christie in chambers, the prosecutor relied on [69] in Ebner, where the Court said (emphasis added): As a matter of prudence and professional practice, judges should disclose interests and associations if there is a serious possibility that they are potentially disqualifying.
On the facts of the present case, there was no relevant "serious possibility" given that the substance of the case was not discussed with Ms Christie and that my "meeting" with Ms Christie was one which was "described reasonably as merely involving mistaken identity".
In its written submissions the prosecutor also noted that the fact that the interaction between Ms Christie and me was not immediately disclosed to the parties is not legally relevant. [13] Given the explanation that I provided as to why I did not disclose the interaction to the parties at the time, the prosecutor submitted that my actions with respect to the disclosure of the interaction should not be called into question. Mr Leggat distinguished the facts in JRL, which was relied upon by the defendant, particularly having regard to the following matters at 368: The judge informed counsel that the counsellor had told her that she was a clinical psychologist. The judge said to the counsellor: "What do you think ought to be done? You think very strongly the child should be returned to her mother. The earlier she is returned emotionally it is better for the child." The counsellor replied: "Even a bad parent can meet the child's needs. A parent can be a bad parent but still be meeting the child's needs." At another stage of that conversation, the judge said to the counsellor: "You are asking that the child be placed with the mother".
Mr Leggat submitted that the facts in JRL, where the judge in that case engaged with the counsellor about questions that "went right to the heart of the matter", was "fundamentally different" and a "totally different reaction" to my interaction with Ms Christie in chambers, where I terminated the conversation with Ms Christie upon apprehension of my misunderstanding as to her identity.

Availability of relevant facts

It is settled that an application should be made as soon as reasonably practicable after the party seeking disqualification becomes aware of the relevant facts. Otherwise the right to do so may be waived. [14]
In Lindon v Commonwealth of Australia (No 2), [15] Kirby J said: …Waiver will most readily be inferred where a party affected has knowingly failed to make known any objection it has to the continuing participation of the judicial officer. The foundation of such waiver is that failure to make a timely objection may deprive the judicial officer concerned of the opportunity to correct a wrong impression of bias, to refrain from hearing the case and to save the time, costs and efforts both of the court and of the other party. The principle of waiver has been justified by reference to the fact that, were it not so, a person, by silence, might seek to gain an advantage, waiting until the litigious waters had first been tested before deciding to raise the suggested ground of disqualification.
Here, I infer that the relevant facts became available to the defendant after Ms Astridge had the conversation with Mr Rollason on Thursday, 2 February 2023, deposed to by Ms Zhao, concerning "the lady in the Court sitting immediately behind us" and was informed that she was "Anna Christie, a member of a local community group", and when some person, not identified in the evidence relied on by the defendant, observed that person to have attended my chambers during the morning adjournment on Friday, 3 February 2023.
In any event, irrespective of whether the defendant became aware of the relevant facts in February or in August, I attach no weight to any delay in my consideration of the defendant's application for recusal.

The first step in Ebner

In relation to the first step set out in Ebner at [8] in relation to the application of the apprehension of bias principle requiring the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits, the defendant submitted, and I accept, as did the prosecutor, that what it is said might lead me to decide the case other than on its legal and factual merits can only be the circumstance of my interaction with Ms Anna Christie in chambers during the morning adjournment on Friday, 3 February 2023.

The second step in Ebner

In relation to the second step in Ebner at [8] in relation to the application of the apprehension of bias principle, namely that 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, I do not accept the submission of the defendant that the attendance of Ms Christie in chambers on Friday, 3 February 2023, in the totality of the circumstances stated by me in open court on 8 September 2023 and supplemented by my associate's email to the parties on 11 September 2023, and what I said in Court yesterday at the commencement of the hearing of the defendant's recusal application, is capable of giving rise to an "interest" in the litigation, or an interest in a party to it.
The defendant failed to establish a "logical connection" between the matter in the first step and the "feared deviation from decided the case on its merits". The established facts are as follows: 1. On Wednesday, 1 February 2023, my chambers received an email from the Registrar notifying the judges and commissioners of the Court that there would be a number of university students sitting in the gallery to observe proceedings conducted in Court. 2. In light of this email, my tipstaff sought to keep an eye out in Court for any student observers and notify me accordingly. 3. On Friday, 3 February 2023, my tipstaff and I entered the lifts on level 12 of the Court at the commencement of the morning adjournment. 4. Upon having entered the lifts, the person now understood to be Ms Christie followed my tipstaff and me into the lifts. 5. Whilst descending to Macquarie Street, I asked my tipstaff whether any university student whose attendance in Court had been notified by Registry had been in Court that morning. 6. The person now understood to be Ms Christie volunteered words to the effect "Yes I am the student". 7. Upon hearing that, I invited her into chambers. 8. In chambers, in the course of a very short conversation, she described herself as doing research into various matters and as undertaking PhD studies in relation to case studies in the Court. 9. It having emerged that she was not one of the university students whose attendance in Court had been notified by Registry, it was apparent that she had been invited into chambers on the basis of a misunderstanding. Her attendance was a case of mistaken identity. 10. I quickly terminated the conversation and asked Ms Christie to leave chambers. 11. There was no discussion in chambers between Ms Christie and myself of the substance of the case. 12. Upon the person now understood to be Ms Christie having been requested to leave chambers, I asked my tipstaff the name of the person who had described herself as undertaking PhD studies in relation to case studies in the Court. Neither my tipstaff nor I could recall the person's name.
It follows from the established facts that there can be no suggestion that I sought Ms Christie out because she has any connection with the case, or that I sought to obtain information from her. There is no evidence that any information was communicated to me by Ms Christie, other than that which allowed me to understand that I had proceeded on the basis of a misunderstanding and terminate the interaction. There was no discussion in chambers between Ms Christie and myself of the substance of the case.
In its written submissions, the prosecutor submitted, and I accept, that however the facts are framed, there is no logical connection between what occurred in the interaction between Ms Christie and me and any feared deviation from the course of deciding this case on its merits.
Orally, Mr Leggat submitted, and I accept, that the defendant's assertion in its oral submissions of "unconscious compromise" was a "very bold proposition". In the prosecutor's submission, there is no basis to conclude that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the question I am required to decide. In making that submission the prosecutor relied in particular on the following characteristics of the "hypothetical reasonable observer" as identified in Polsen at [46] (footnotes omitted): (ix) "neither complacent nor unduly sensitive or suspicious", the fair-minded law observer may have a level of scepticism as to professional pretensions, but will be cognisant of and vigilant against his or her own prejudices; … (xv) the fair-minded lay observer is taken to know the nature of the decision, the circumstances which led to the decision and the context in which it was made; (xvi) the context which must be considered includes the legal, statutory and factual context in which the decision is made, and the "totality of the circumstances", although the fair minded lay observer will not be taken to have a detailed knowledge of the law or legal principles; (xvii) the fair minded lay observer will not act on "insufficient knowledge", but will "inform himself [or herself]" of the relevant circumstances, without making "snap judgments";
The prosecutor also referred to the relevant qualities and duties of the judicial officer who is the subject of the application, as identified in Polsen at [46] including that: (iv) a finding of apprehended bias is not to be reached lightly; … (vi) the duty of a judge to disqualify for proper reasons is matched by an equally significant duty to hear any case in which there is no proper reason to disqualify.
In relation to the matter of non-disclosure of Ms Christie's attendance in chambers relied upon by the defendant in relation to the second step in Ebner, at the mention on Friday, 8 September 2023, when asked by Mr Howard "why it is that your Honour didn't disclose that matter at an earlier time to the parties", I said: HER HONOUR: It didn't seem to be a matter that was necessary, required to be disclosed, in circumstances in which the conversation was terminated and she was asked to leave the chambers, and there was no further communication at all with her during the course of the first tranche of this hearing.
In relation to the question of judicial disclosure of interests and associations, in Whalebone v Auto Panel Beaters & Radiators Pty Ltd (in liq) (Whalebone), [16] Giles JA (McColl and Macfarlan JJA agreeing) said the following at [20]: 20. As was explained in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 33 at [68]-[71] in the joint judgment of Gleeson CJ and McHugh, Gummow and Hayne JJ, while disclosure of interests and associations may be prudent if there is "a serious possibility that they are potentially disqualifying", it is not a matter of right or duty. The question is whether the reasonable apprehension of bias test is established. That question is fully litigated on appeal or in an application for prerogative relief, and it is not relevant to ask whether the moving party was denied an opportunity to make submissions on disqualification to the judge. Their Honours said (at [70]) - … A failure to disclose is relevant (if at all) only because it may be said to cast some evidentiary light on the ultimate question of reasonable apprehension of bias. A failure to disclose has no other legal significance. In particular it does not, of itself, give a litigant any right to have the judge desist from further hearing the matter or to have the ultimate decision in the matter set aside for want of procedural fairness. (footnote omitted).
In relation to whether non-disclosure of an association may give rise to a reasonable apprehension of bias, Giles JA continued (emphasis added): 23. Where the undisclosed prior advising and appearances did not disqualify the trial judge from hearing the proceedings, non-disclosure of that association did not give rise to a reasonable apprehension of bias, in itself or as an evidentiary supplement to the association. 24. The appellant relied in this respect on Antoun v R [2006] HCA 2; (2006) 224 ALR 51. There had been an appearance of prejudgment that a no case submission would not succeed. A new trial was ordered notwithstanding that there was a strong prosecution case. As I understand the appellant's submission, it was that reasonable apprehension of bias through non-disclosure should similarly lead to a new trial although the undisclosed matters would not have warranted disqualification. The reasonable apprehension of bias came from the appearance of prejudgment, not from non-disclosure or from that which was not disclosed. The submission can not stand with Ebner v Official Trustee in Bankruptcy. 25. I do not think that there was occasion for a trial judge to make the relevant disclosure, even as a matter of prudence. If there was, failure to make the disclosure is not a basis for ordering a new trial.
Having regard to the established facts, and the authorities, it is evident that my interaction with Ms Christie was on the basis of mistaken identity, and did not involve any secret or private representations, or communication to me of any views or opinions concerning the case. As Mason J said in JRL at 350: It would be inconsistent with basic notions of fairness that a judge should take into account, or even receive, secret or private representations on behalf of a party or from a stranger with reference to a case which he has to decide…A judge must therefore be alert not to receive any such communication…
As was observed in CNY17 the hypothetical "fair-minded lay observer" is neither complacent nor unduly sensitive or suspicious. [17] The construct assumes that the person is intelligent. [18] . As Kirby J observed in Johnson v Johnson, 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". [19] And as the Court said in Polsen at 46, the fair-minded lay observer will not act on "insufficient knowledge", but will "inform himself [or herself]" of the relevant circumstances, without making "snap judgments". [20]
As to the question raised by Mr Howard in relation to a "serious possibility" that the matter is "potentially disqualifying", having regard to the authorities in Ebner and its application in Whalebone, I do not consider that I was compelled by the authorities to have disclosed to the parties my short interaction with Ms Christie in chambers. Further, I do not consider that non-disclosure of that attendance, in the circumstances stated by me in Court and supplemented by my associate's email to the parties, satisfies the second step in Ebner, namely, the existence of a logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
The defendant has failed to establish a logical connection between the matter and the feared deviation from the course of deciding the case on its merits.

Conclusion

In its recusal application, the defendant has referred to nothing in the established facts capable of suggesting, let alone establishing, any interest on my part or any connection with the possibility of departure from impartial decision making. There is nothing relied upon by the defendant capable of establishing any association, past or present, with a litigant in the proceedings, a legal adviser of litigants in the proceedings, a witness in the proceedings, a company associated with the proceedings; or a relevant business, professional or commercial relationship, an involvement with a litigant community organisation, or a personal relationship. In circumstances where there was no prior or subsequent association with Ms Christie, and where there was no discussion about the substance of the case in chambers, I am not satisfied on the evidence that I could be "unconsciously compromised" by my interaction with Ms Christie in chambers.
There is nothing, on a fair understanding of the relevant circumstances, that is, the established facts of the matter, capable of establishing the reasonableness of the apprehension of bias asserted by the defendant. In particular, having regard to the objective "double might" test, namely "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" (emphasis added), I am comfortably satisfied that a fair understanding of all the relevant circumstances must result in the recusal application being dismissed.
As held by the Court of Appeal in Polsen, the application of the apprehended bias rule depends on the circumstances of each case. In this case, the interaction with Ms Christie was entirely accidental, and arose as a result of mistaken identity. There had been no previous, nor has there been any subsequent interaction between myself and Ms Christie. In the very short conversation which occurred in chambers, on Friday, 3 February 2023, there was no discussion between Ms Christie and myself of the substance of the case. That was accepted by the defendant in Court yesterday.
As stated by me in Court, once it emerged that Ms Christie was doing research into various matters, and was not the student whose attendance at Court had been notified to my chambers by registry, I terminated the conversation quickly and asked her to leave chambers.
The rebuttal of the presumption that the fair-minded lay observer is presumed to approach the matter on the basis that ordinarily the judge will act so as to ensure both the appearance and the substance of impartiality requires a "realistic possibility" of the apprehension of bias which is not "fanciful or extravagant" but is based on "the established facts" of the matter. Here, the established facts support no such realistic possibility. 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".
As was held in Polsen, the duty of a judge to disqualify for proper reasons is matched by an equally significant duty to hear any case in which there is no proper reason to disqualify. Here, having regard to the "established facts" and "actual circumstances", I am satisfied that there is no proper reason to disqualify.
I will proceed to hear the part-heard matter next Monday, 18 September 2023.

Orders

Accordingly, I make the following order: 1. The defendant's application that Pritchard J recuse herself from hearing these proceedings is dismissed.

Endnotes

[2009] NSWSC 117 (Rothman J).
[2016] NSWSC 1886 (Garling J).
(2000) 205 CLR 337; [2000] HCA 63 at [6]-[8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
(1994) 181 CLR 41 at 74; [1994] HCA 30.
Ebner at [24] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
(2021) 273 CLR 289; [2021] HCA 29 (Charisteas) (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ).
(2000) 201 CLR 488; [2000] HCA 48 (Johnson v Johnson) (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
Charisteas at [19].
(1986) 161 CLR 342; [1986] HCA 39 (Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ).
[2021] NSWCA 23 (Bell P, Basten JA and Simpson AJA).
(2011) 244 CLR 427; [2011] HCA 48 (Gummow ACJ, Hayne, Crennan and Bell JJ).
CUR24 v Director of Public Prosecutions (2012) 83 NSWLR 385; [2012] NSWCA 65 at [36] (Meagher JA, Whealy JA agreeing).
Ebner at [68] to [72].
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 at 572 (Brennan, Deane and Gaudron JJ), at 577-8 (Dawson J) citing Re Alley; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1985) 60 ALJR 181 and at 587 (Toohey J); Cassegrain v Commonwealth Development Bank of Australia Ltd [2003] NSWCA 260 at [52]-[53] (Sheller JA, Ipp and McColl JJA agreeing); Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA88 at [23]-[34] (Basten JA).
(1996) 136 ALR 251 at 261; (1996) 70 ALJR 541; [1996] HCA 14 (Kirby J); adopted in Alexandria Landfill Pty Ltd and Boiling Pty Ltd v Roads and Maritime Services [2017] NSWLEC 148 at [19]-[24] (Sheahan J).
[2011] NSWCA 176 at [20] (Giles JA, McColl and Macfarlan JJA agreeing).
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 (CNY17) at [17] to [19] per Kiefel CJ and Gageler J citing Johnson v Johnson at 509 [53].
CNY17 at [133] (Edelman J) citing R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 267.
Johnson v Johnson at [12], citing Vakauta v Kelly (1989) 167 CLR 568 at 584-585.
AB v Director of Public Prosecutions (DPP) [2016] NSWCA 73 at [21] (Emmett AJA, McColl and Leeming JJA agreeing).

Amendments 15 September 2023 - Caselaw formatting correction at [29]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 September 2023

Environment Operations Act 1997(Cth)ss 64(1), 140(1)

The defendant foreshadows an application for recusal

On Monday, 11 September 2023 at 2:08pm, after the mention on Friday, 8 September 2023 at the conclusion of which Mr Howard said his client would consider its position, Ms Michelle Astridge, partner at King & Wood Mallesons and solicitor for the defendant, sent an email to my associate, copied to the prosecutor's solicitors, foreshadowing a recusal application when the proceedings resume on Monday, 18 September 2023: We refer to the above proceedings, the emails below and the mention before her Honour Justice Pritchard on 8 September 2023. In accordance with the comments of Rothman J in Attorney-General (NSW) v Bar Mordecai [2009] NSWSC 117 at [5] and [6] (citing Livesey v NSW Bar Association [1983] HCA 17 and (1983) 151 CLR 288 at 292), and consistently with the procedure followed in Kaldas v Barbour (No 2) [2016] NSWSC 1886, as recorded by Garling J at [8] - [11], we wish to foreshadow that, when these proceedings resume on 18 September 2023, an application will be made by the Defendant that her Honour recuse herself from hearing these proceedings given the circumstances canvassed in Court before her Honour on 8 September 2023 relating to her Honour's meeting with Ms Anna Christie in her Honour's chambers during the trial on 3 February 2023. In making this application, the Defendant will rely on the affidavits of Stella Zhao and Gemma Twemlow affirmed on 11 September 2023, copies of which are attached, and, if available, on the transcript of the mention before her Honour on 8 September 2023. The Defendant will file the affidavits at the Court's convenience.
Attached to Ms Astridge's email were two affidavits: 1. An affidavit of Ms Stella Zhao, solicitor employed by the solicitor for the defendant, affirmed 11 September 2023, in which Ms Zhao deposed to being present in Court during the trial from 30 January 2023 to 10 February 2023. Ms Zhao was present on Thursday, 2 February 2023 when, Ms Zhao deposes, Ms Astridge enquired of the prosecutor's solicitor, Mr Alex Rollason, as follows: Ms Astridge: Do you know who the lady in the Court sitting immediately behind us is? Mr Rollason: That is Anna Christie, a member of a local community group. Ms Zhao also noticed the presence of Ms Christie in the courtroom each remaining day of the hearing from 3 to 10 February 2023. 1. An affidavit of Ms Gemma Twemlow, solicitor employed by the solicitor for the defendant, affirmed 11 September 2023, in which Ms Twemlow deposed to causing searches to be carried out on 24 August 2023 and 7 September 2023 in relation to publications and public statements made by Ms Christie, as well as to Ms Christie's involvement in various groups such as the Leard Forest Research Node, Wando Conservation and Cultural Centre, North West Protection Advocacy, Australian Citizen Science Association and Front Line Action on Coal.
Neither Ms Zhao nor Ms Tremlow provides any evidence in relation to the matter raised by Mr Howard in Court on Friday, 8 September 2023 concerning the attendance by Ms Christie in my chambers during the morning adjournment on Friday, 3 February 2023.
The authorities referred to in the email from Ms Astridge dated 11 September 2023 provide as follows.
In Attorney-General (NSW) v Bar Mordecai, [1] Rothman J observed at [5]-[6]: 5. The Court of Appeal has previously described the orthodox method of raising with a judicial officer the question of apprehended bias. The relevant passage is cited, without criticism as to practice, by the High Court of Australia in Livesey v the New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 292. In Livesey there was an application made by counsel relating to apprehended bias in which counsel, together with counsel to whom they were opposed, approached the judges in chambers to notify them of the application to be made and its basis. That is the usual practice, when legal practitioners are involved in an application of that kind and non-compliance with it ought to be criticised. 6. In the case of a person, who is not represented by a legal practitioner such person may not have either the capacity or the knowledge associated with the means by which she or he might, together with her or his opponent, approach a judicial officer and deal with the matter in chambers, prior to the Court being convened. It is, for such a person, at least, incumbent upon the person, once they are aware, or ought to be aware, of the judicial officer who is sitting, for the person to notify the judicial officer through the judicial officer's associate of the intention to make application for the judicial officer to disqualify himself or herself and the basis of that application. This is a courtesy, but it is not simply a matter of courtesy.
In Kaldas v Barbour (No 2), [2] Garling J said at [8]-[11]: 8. By email to my Chambers dated 9 December 2016, the solicitor for the plaintiff foreshadowed an application being made that I recuse myself. The basis for the application was said to be a statement I made in my swearing in speech on 10 June 2010. 9. What I there said was: "Having graduated from Law School, I spent a short time as an articled clerk and solicitor at David Landa, Stewart & Company. … David Landa … was very kind to me at the firm and also after I went to the bar, including when he became the NSW Ombudsman. I commenced under his time there a professional relationship with that office which lasted over 20 years and endedonly last week with a final brief from them." 10. Having drawn attention to that part of my swearing in speech, the email said: "In accordance with the comments of Rothman J in Attorney-General (NSW) v Bar Mordecai [2009] NSWSC 117 at [5] and [6] (citing Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 292), we wish to foreshadow that an application will be made that his Honour recuse himself from hearing this proceeding given his Honour's long-standing professional relationship with the Ombudsman, including the most recent former Ombudsman, Mr Barbour, a party to these proceedings." 11. When the proceedings commenced, Senior Counsel for the Ombudsman renewed his application. He made it in the following terms: "I am instructed to make an application that your Honour recuse yourself from hearing this matter on the ground of apprehended bias. The application … is brought on the basis of your Honour's previous longstanding professional relationship when your Honour was Senior Counsel, and Counsel, with the Ombudsman, the Office of Ombudsman, including the first defendant, the former Ombudsman …"
I accept that the defendant properly foreshadowed an application that I disqualify myself from hearing these proceedings.
However, on Tuesday, 12 September 2023, I directed that in order to assist the Court and the parties in the orderly preparation for the scheduled resumption of proceedings on Monday, 18 September 2023, and to minimise costs or delay attributable to disqualification, any recusal application be made this week.

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