Garrett v Freeman

Environmental Planning and Assessment Act 1979 Pt 5 LEGISLATION CITED: National Parks and Wildlife Act 1974 s 118D, s 169, s 175B Protection of the Environment Operations Act 1997 s 193

Antoun v The Queen (2006) 80 ALJR 497; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 231 ALR 663; 81 ALJR 352; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; CASES CITED: Garrett v Freeman (No. 2) [2006] NSWLEC 334; Johnson v Johnson (2000) 201 CLR 485; Re JRL; Ex parte CJL (1986) 161 CLR 324; Re Lusink; Ex parte Shaw (1980) 32 ALR 47; Vakauta v Kelly (1989) 167 CLR 568

DATES OF HEARING: 05/06/2006; 06/06/2006; 07/06/2006; 08/06/2006; 09/06/2006; 13/06/2006; 14/06/2006; 15/06/2006; 11/07/2006; 12/03/2007; 13/03/2007; 14/03/2007; 15/03/2007; 16/03/2007

PROSECUTOR: D A Buchanan SC SOLICITOR: Stephen Garrett LEGAL REPRESENTATIVES: DEFENDANT: I J Hemmings (barrister) and E Y Ozen (barrister) SOLICITORS: Donovan Oates Hannaford

JUDGMENT:

• 19 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

1 HIS HONOUR: The defendant by his counsel applies by way of a notice of motion for an order that I disqualify myself from further hearing this case.

2 The application was made in the morning of the fourteenth day of the hearing of two prosecutions of the defendant, Geoffrey Noel Freeman for offences against s 118 D(1) of the National Parks and Wildlife Act 1974 ("the NP&W Act"), by s 175B(1) of that Act, in that he was a person concerned in the management of a corporation, Port Macquarie - Hastings Council, which caused damage to the habitat of threatened species, knowing that the land concerned was habitat of that kind. The threatened species identified by the prosecutor are the Eastern Chestnut Mouse and the Grass Owl.

3 Mr I J Hemmings and Mr E Y Ozen appearing for the defendant, rely upon the settled principle of apprehended bias, that is, that the trial judge must be disqualified if he has conducted himself in such a way that a fair-minded observer might reasonably apprehended that he might not bring an impartial and unprejudiced mind to the resolution of the question whether the defendant ought to be convicted: Antoun v The Queen (2006) 80 ALJR 497 at [1]. 4 The grounds, upon which the application is made, as I understand them, are as follows:

(a) At the close of the prosecutor's case the defendant counsel submitted that there was no case for the defendant to answer. In the course of rejecting the submission I said (at [3]): The evidence adduced by the prosecutor has established the following facts (at least, on a prima facie basis) beyond a reasonable doubt: that the defendant was, at all relevant times, concerned in the management of the council; the council constructed two roads, running through an area owned by the council and known as the Partridge Creek area west of Port Macquarie Airport; the defendant caused the council to construct the roads; the area through which the roads were constructed was habitat of the Eastern Chestnut Mouse and also the Grass Owl, both being threatened species within the meaning of the National Parks and Wildlife Act ; the roads damaged the habitat of those species, both directly and indirectly; and, when the defendant caused the roads to be constructed, he knew that the area was habitat of those species. That is, the evidence as it stands establishes that the offences described in the charges have been proved beyond reasonable doubt. See Garrett v Freeman (No. 2) [2006] NSWLEC 334 It is submitted that my findings went further than necessary and all that I was required to find was that there existed a prima facie case and in going further and finding that the prosecutor had established the charges beyond reasonable doubt I had formed a concluded view that the defendant was guilty of the offences as charged.

(b) In the course of ruling on the admissibility of evidence, on the thirteenth day of the hearing, I said on three occasions that the defendant had provided misleading answers in response to questions asked of him in two statutory notices requiring him to provide information and documentation relating to the land in question. As I understand the submission, it is said that in expressing the view that the answers that the defendant gave were misleading, I had already formed the opinion that the answers were in fact misleading and had thus given an impermissible indication of prejudgment and had, therefore, compromised the appearance of impartiality. Reliance was placed, in particular on Antoun v The Queen at [22], [24], [33], [46]-[48] and [81]. It is further submitted that the view that I expressed - that the defendant's answers were misleading - were not tentative views, but were expression of a concluded opinion.

(c) The substantial complaint of the defendant relates to my statements that the defendant's answers to the statutory notices were misleading. As I understand it, the defendant does not rely upon what I said in ruling on the no case to answer submission as a discrete and separate ground for disqualification but rather as indicative of the context in which the substantial complaint arose and indicative of a state of mind suggestive of prejudgment. 5 The question of whether judicial observations can exceed what is proper and reasonable is a matter of judgment taking into account all the circumstances of the case: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 231 ALR 663. It is necessary, therefore to set out the circumstances in which the question now before me arose.

6 I have set out in par [4(a)] above the statement complained of in the course of my ruling on the no case to answer submission. That ruling was given as I have said, following the close of the prosecutor's case on the ninth day of the hearing on 15 June 2006. The hearing resumed before me on 12 March 2007. The complaint that those remarks are indicative of prejudgment was made in support of the present application for disqualification on 16 March 2007, being the fourteenth day of the hearing. In these circumstances the judgments in Vakauta v Kelly (1989) 167 CLR 568 are relevant: where comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the content of the final judgment are known and then, if those contents are unpalatable, attack the judgment by reason of the earlier comments. Although in the present case a final judgment is yet to be delivered, the principle nevertheless applies to the circumstances here. Moreover, as acknowledged in Vakauta v Kelly (at 577 and 586) an objection on the ground of bias can be waived, even in a criminal case. 7 The defendant has at all times been represented by counsel. In the present case the facts which are said to give rise to an apprehension of prejudgment arose on 15 June 2006. The prosecutor is thus entitled to assume that, in allowing some nine months to pass without complaint, the defendant had waived the right to be heard to complain. In my opinion, the defendant has by reason of conduct waived any right to be heard to complain. 8 I have noted, however, that the defendant nevertheless relies upon remarks made in the determining no case to answer submission as supporting the principal complaint that the observations I made on the thirteenth day of the hearing are indicative of an impression of prejudgment. It is necessary, therefore to turn to the circumstances in which the latter observations were made. 9 The issues for trial are, as I understand them: (a) Was the land in question habitat of the two threatened species? (b) Did the council do a thing, namely, construct roads? (c) Did the constructing of the roads cause damage to the habitat? (d) Did the council know at the time of constructing the roads that the land concerned was habitat of that kind? (e) At the time of the alleged offence, was the defendant a person concern in the management of the corporation, that is, the council? (f) Has the prosecutor negated the defence in s 118D(2) of the Act - that is, that the work was essential for the carrying out of an activity within the meaning of Pt 5 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") and that the council complied with that Part. 10 The acts constituting the offence, as alleged by the prosecutor, are that the council constructed two roads across a large area of land which it owned and which lies to the west of Port Macquarie airport. The land is habitat of the two threatened species. One road runs in a north-south direction and the other road runs in an east-west direction. The defendant was at that time the council's Director of Infrastructure Services and the prosecutor alleges that it is he who caused the council to construct the roads. It is further alleged that the construction of the roads caused damage both directly and indirectly to the habitat of the two threatened species. 11 The work was commenced under the defendant's direction in early September 2003. The sites of the roads were first slashed to assist in locating survey lines. The first road to be constructed, as I understand the evidence, was the north-south road with work commencing at its southern end. 12 The defendant has given evidence. He says that after commencement of construction at the southern end of the north-south road he was alerted to the fact that the area was habitat of threatened species. His attention was drawn to two ecological reports about the land in the council's files, one by a firm of consultants known as ERM and one by an environmental consultant, Mr P A Redpath, which identified the land as habitat for the species in question. The defendant also saw a plan of management that had been prepared for the land, and an archaeology report. 13 The defendant then prepared a document which he described in evidence as a preliminary review of environmental factors ("the REF"). The defendant says that in preparing the REF he had regard to the abovementioned reports and the plan of management. The defendant formed the view that the works were acceptable, that there were not likely to be any significant impacts such as to require either an environmental impact statement or a species impact statement or any further investigation and he allowed the work to continue. 14 On 28 May 2004 Mr S Beaumont, an investigator with the Department of Environment and Conservation of New South Wales ("the DEC"), served a notice upon the General Manager of the council under s 169 of the NP&W Act requiring him to provide information and assistance into the department's investigation of the alleged damage to the habitat of the threatened species. The notice became Exhibit J. The information and assistance required by the notice included a request for copies of all documents in relation to the land. By s 169(3) of the Act a person must not refuse to give the information and other assistance requested or knowingly give any information that is false or misleading in a material particular. 15 By a letter dated 18 June 2004, the notice was answered by the defendant on behalf of the council in which the defendant made no mention of any documents in relation to the land and none were forwarded with the response, neither did the defendant respond to any of the other requests in the notice. The response became Exhibit K. 16 On 22 June 2004, Mr Beaumont sent a further document described as a notice under s 169 of the Act to the general manager of the council stating that the response from Mr Freeman did not address any of the requests outlined in the notice and requested that the information be provided by 2 July 2004. The notice stated that it is an offence to fail to provide information or reasonable assistance when requested by an officer of the department, or to knowingly provide information that is false or misleading in a material particular. The notice became Exhibit 5. 17 By letter dated 24 June 2004 addressed to Mr Beaumont the defendant asserted that his response of 18 June 2004 does provide the information and that there has been no breach of s 169 of the Act. This letter became Exhibit 6. 18 On 7 December 2004 Mr Beaumont served on the council a notice under s 193(1) of the Protection of the Environment Operation Act 1997 ("the POEO Act"), requiring the provision of information and records relating to the land in question. This notice became Exhibit L. The notice required the production, amongst other things, of a copy of all documentation in relation to the land in question - item 1 of the notice; a copy of any written procedures for the preparation of reviews of environmental factors undertaken by the council to which Pt 5 of the EP&A Act applies - item 3 of the notice; and a copy of all documents referred to in the preparation of the review of environmental factors - item 6 of the notice. 19 On 24 December 2004 the response to the notice was again provided by the defendant. The response became Exhibit M. In answer to the request in item 1 of the notice the defendant said: "Apart from other information and documents referred to in this letter there is no documentation in response to the paragraph 1 of your notice". I note that there are no documents otherwise referred to in the response. In answer to the request in item 3 of the notice the defendant said: "No documentation exists". In answer to the request in item 6 of the notice the defendant said: "There are no documents". 20 On 20 January 2005 Mr Beaumont sent a letter to the council. The letter states: On the morning of the 19 January 2005, I had a telephone conversation with Mr Freeman and queried why documentation such as scientific reports, species impact statements etc. in relation to 'The Land", had not been provided as per Notice. Mr Freeman has informed me that on seeking legal advice from Mr Steven Miles Solicitor from 'Donovan, Oakes, Hannaford', it was his (Mr Freeman's) understanding that the Notice referred to the constructed road only and not the site. This is not the case. I draw you attention to paragraphs two and three of the 7 December 2004 Notice:

1. The DEC is investigating the alleged damage to the habitat of threatened Fauna Species, namely the Grass Owl, Wallum Froglet and Eastern Chestnut Mouse , on lots 100,140, 204, 235, 236, 237, 250, 333, 378 DP 754434 and Lot 899494, ('The land').

2. According to information acquired by the DEC, the construction of roadways across "The land" has resulted in the damage to Threatened Species Habitat.

The Notice then requests information and records in relation to "The Land". 21 The reply to the letter of 20 January 2005 came in the form of a letter from Mr S Miles of Donovan Oates Hannaford lawyers, of Port Macquarie, dated 18 February 2005. The letter states: We refer to your letter to our client Hastings Council dated 20 January 2005. We have read carefully the points you make in your letter together with the responses provided by Council to the previous notices that you have served upon them. It is clear to us that Council has complied with its lawful obligations to provide information to you. In our opinion, the demands that you are now making upon Council for further information are not authorised to be made by you by Section 193 of the Protection of the Environment Operations Act. To this extent those parts of your notice or letter of 20 January 2005, which are not properly authorised by Section 193 of the Protection of the Environment Operations Act, are ultra vires. A clear example of this is paragraph 18 of your notice of 7 December 2004. 22 I have earlier noted the evidence of the defendant himself that he had prepared a document which he calls a REF and in doing so he referred to the ecological reports that I have earlier described. The defendant's responses to the two notices make no reference to either the REF or to the documents to which he had recourse and none of these documents were produced in answer to the notices. 23 In giving his evidence the defendant was asked about the answers he had forwarded in response to the notices. He said that before responding to the notices he had sought legal advice. He was also cross-examined on his responses to the notices. It is necessary to refer to some of that cross-examination. He was first questioned about the notice under s 169 of the NP&W Act (Exhibit J). After stating that he had received legal advice in relation to it he was asked the following questions and gave the following answers: Q. And there's no doubt that as at May 2004 you knew that council had a large amount of documentation in relation to those lots of land? A. That's correct.

Q. So did you produce it to the author of this notice? A. I arranged for various staff who would have access to that material to compile that information and provide it to me which was then the basis of my response to the DEC.

Q. 's [sic] land at Partridge Creek, didn't you? A. Correct.

Q. So that was a very wide category of documentation, wasn't it? A. It is.

Q. And there's no doubt that as at May 2004 you knew that council had a large amount of documentation in relation to those lots of land? A. That's correct.

Q. You know that no documentation was provided at all except your two page letter dated 18 June, exhibit K, don't you Mr Freeman? A. That advice, and that response, was provided on advice from my own - council's own legal advice.

Q. That's not the question I'm asking you sir. I'm not asking you why you sent the letter, exhibit K, I'm asking you isn't it your knowledge that the only documents provided in response to that section 169 notice, was your one document, this two page letter, exhibit K, isn't that your knowledge as you sit there in the witness box? A. As it would appear that may be the case on the evidence that you presented me here. I just can recall, and I don't recall that in relation to that first notice or this second notice, that certainly we had compiled all the information that was required by the department as and when it was required. I don't believe that we at all avoided our legal obligations in that regard.

Q. Mr Freeman, your letter exhibit K, doesn't refer to any of the paragraphs of the notice by number, or content specifically does it? A. No it doesn't.

Q. It doesn't pretend to respond to any of the categories of documentation or information sought under that section 169 notice does it? A. It doesn't make specific reference to it no.

Q. Can you explain why it is that your response, exhibit K does not contain any reference to the documentation sought in paragraph 1 of the notice, exhibit J? A. No I can't explain that. Other than that was the response that was provided on advice at that time.

Q. Why then didn't you supply the documentation referred to in paragraph 1 of the notice? A. I can only refer to my earlier answer which was that that response was provided on advice to the DEC.

Q. Why didn't you provide the name, address and phone numbers of individuals involved in the works allegedly impacting habitat of the species identified in paragraph 2 as requested in that paragraph? A. I can only restate my answer and say that advice, that response was provided to the DEC on advice.

Q. Do you mean to say you didn't draft that letter? A. I would've draft some of that letter and sought advice in terms of how best to respond to this request and provided that response based on that advice.

Q. Do you mean to say that a lawyer gave you advice not to provide the information contained in that 169 notice? A. Our advice was to provide the response that was provided and that's what I did.

Q. Did you get the advice personally? A. Correct.

Q. Whose Mr Miles? A. Stephen Miles from Donovan Oates Hannaford. 24 The cross-examination then turned to the second notice, the one issued under s 193 of the POEO Act (Exhibit L). The defendant again stated that he sought legal advice and provided a response in accordance with that advice. There then occurred following exchange: Q. Mr Miles, a partner of that firm, gave you legal advice that it at least was all right to respond to the request for all documentation in relation to the land by saying there is no documentation did he? A. That's correct, that's my evidence.

Q. Is that because you told him there was no documentation, would that explain his advice? A. I don't believe so, no.

Q. He must have known, on what you told him, that there was lots of documents, is that what you tell us? A. I can only advise you that the responses I provided you was on advice. What Mr Miles knew at that time I can't advise you, but he was certainly aware of all the issues in relation to this site.

Q. Well let's just think about it; did you discuss with Mr Miles how you should respond to paragraph one of that notice? A. Correct.

Q. Did you tell him that you had a large quantity of documentation in relation to the land? A. I believe I did, yes.

Q. So he advised you that it was all right to respond, "There is no documentation I relation to the land" did he, is that what you're telling us? A. He advised me that this response met council's legal obligation in responding to that notice.

Q. In the knowledge you say, because you told him, that there was in fact documentation in relation to the land? A. I believe so, yes.

Q. Can I take you then to paragraph 6 of the notice, exhibit L; "Please provide a copy of all documents referred to in the preparation of the REF." What did you understand the REF to be a reference to in that question? A. A review of environmental factors.

Q. Did you understand it to be because of the use of the word 'the' before the letters 'REF' a reference to your preliminary REF? A. I would assume so, yes.

Q. The answer to that question is on the second page of exhibit M, isn't it, paragraph 6? A. Yes.

Q. Could you read it out please? A. It says, "There are no documents."

Q. There are two ways of approaching that response aren't there? A. Yes.

Q. One is that it's true and was at the time you signed the letter, and the other is that it was untrue, those are the two approaches that can be taken to it, aren't they? A. Correct.

Q. Are there any other approaches that can be taken to it? A. In terms of what documents referred to in the request, whether we're talking about reports or other information or other forms of documents, that's the only explanation I can give you.

Q. Well paragraph 6 of the request said please provide a copy of all documents referred to in the preparation of the REF, is that correct? A. That's what the question says, correct.

Q. You knew that at the time you wrote your answer? A. Correct.

Q. Who had prepared the REF on your evidence? A. I had.

Q. So these are the options aren't they. One is that this statement is true, there were no documents that you refer to in the preparation of your preliminary REF, that is one possibility isn't it? A. That's one possibility.

Q. And is that in fact true Mr Freeman, you didn't refer to any reports, you didn't refer to any documents when you ticked the boxes in your check list? A. That's in fact incorrect, I've given evidence of the extent of the documents that I've used in undertaking that assessment.

Q. Well that means that this statement in this letter, there are no documents, is untrue, doesn't it? A. In that context it would appear so.

Q. What other context could there be? A. I'm unable to suggest one at the moment, but I certainly used all of the documents that Mr Aaso provided, in providing that response, in undertaking that REF. Why that response was provided in that form in terms of what it refers to, I cannot advise you further. 25 Mr Miles also gave evidence. His evidence covered the information that he was given by the defendant in relation to the notices and the advice that he furnished to the defendant in answering the notices. 26 In the course of the cross-examination of Mr Miles, objection was taken to the admissibility of some of the questions asked on various grounds, including their relevance. In the course of ruling on the admissibility I said, inter alia: HIS HONOUR: … It is relevant to what advice Mr Miles gave to Mr Freeman. Mr Freeman says he relied upon Mr Miles' advice for these misleading answers to these statutory notices. What the court wants to know is whether Mr Freeman's assertion that he relied upon legal advice to produce these misleading answers or not is right or is wrong. 27 In ruling on a later objection to the admissibility of further questions I said: HIS HONOUR: I'd like to know what really happened and where the truth lies. I'd like to know whether your client is lying when he said that he relied upon legal advice to prepare the misleading responses that he did. I want to know everything I possibly can about this case.

28 I have set out at length the circumstances in which the statements said to amount to an impression of bias arose. As I earlier indicated, the defendant has focused on the statements made by me in which I described the answers to the statutory notices as "misleading".

29 Mr Hemmings submits that this amounts to an indication of prejudgment and a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the issues in the case.

30 The test for determining whether or not there is apprehended bias is correctly stated by Mr Hemmings. It had been re-stated in many cases, for example, most recently in Johnson v Johnson (2000) 201 CLR 485 at [11], Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]-[8], Antoun v The Queen at [1]. 31 In Johnson, however, the Court (Gleeson CJ, Gaudron, McHugh, Gummow and Haynes JJ) went on to say at [12] that the hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective. The Court said: At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial (citing Vakauta v Kelly at 527 per McHugh JA). 32 In Johnson the Court went on to say (at [13]): While the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. 33 The Court went on to note that 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". 34 In the same case Kirby J said (at [46]): Whatever may have been the tradition in earlier times, opinions favouring silence on the part of an adjudicator during a hearing [ Watson (1976) 136 CLR 248 at 294; 9 ALR 551 per Jacobs J] (which is the surest means of avoiding most allegations of prejudgment) are now seen as carrying risks of an even greater injustice [ Vakauta v Kelly (1989) 167 CLR 568 at 571]. Unless the adjudicator exposes the trend of his or her thinking, a party may be effectively denied justice because that party does not adduce evidence or present argument that could have settled the adjudicator's undisclosed concerns. A frank dialogue will commonly be conducive to the avoidance of oversight and the repair of misapprehensions. Uninformed members of the public are doubtless sometimes surprised by the robust exchanges which take place in court, especially between a judge and experienced lawyers. But judges and other adjudicators and lawyers know that such dialogue can have great value. 35 In Vakauta v Kelly, to which Kirby J referred, the Court (Brennan, Deane and Gaudron JJ) said (at 571): It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated. 36 In Antoun, Kirby J said (at [27]): So far as the first point is concerned, it is certainly true that the trial judge's remarks were strong and forthright. In some circumstances, that will be a permissible expression to adopt, especially where the trial judge is conducting a trial as the sole judge of fact and law and the parties are legally represented by counsel able to respond with clarity and forthrightness. Judicial indignation at a particular course of action, or proposed action, may on occasion be understandable. 22 Couched appropriately, at the proper time and in due sequence, it may give rise to no reasonable apprehension of bias. For centuries in courts of our tradition, judges have been telling parties and their lawyers, sometimes in quite robust terms, that they consider that a particular submission or course of action is hopeless, a waste of the court's time or doomed to fail. I would not want to say anything that needlessly mollycoddled candid judicial speech addressed to trained advocates. 37 As counsel who involved in this case are aware, it has always been my practice to avoid being Sphinx-like and to express my thinking about the case or about the evidence, often quite forcefully. It is better that I should do so rather then unexpectedly spring it on the parties for the first and only time in a reserved judgment. The practice has the benefit of affording an opportunity to counsel, if they wish, to persuade me to an opposite view. 38 The cases are also full of warnings against trial judges accepting too readily submissions that they should disqualify themselves on an appearance of bias. 39 In an earlier case Re Lusink; Ex parte Shaw (1980) 32 ALR 47, Murphy J said (at 53): The judicial process is quite opposed to the idea that a judge forms no impression until the very last word before judgment. On the contrary, one side begins by introducing arguments or evidence intended to create a provisional view in its favour, and often succeeds. The other side seeks to reverse the process by cross-examination and then presenting its case. The extent to which any impression is formed depends upon the strength of the evidence and the conduct of the case up until that point. 40 Re Lusink involved an application for a writ of prohibition which had been sought against the trial judge. In refusing the application Gibbs ACJ said (at 50): Of course, the court which is asked to grant prohibition will not lightly conclude that the judge may reasonably be suspected of bias in this sense; it must be "firmly established" that such a suspicion may reasonably be engendered in the minds of the parties or the public… 41 In Re JRL; Ex parte CJL (1986) 161 CLR 324 at 351, Mason J said that this kind of disqualification is only made out by showing that there is a reasonable apprehension of bias by prejudgment, and this must be firmly established. His Honour went on to say:

Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. 42 In Johnson, Kirby J referred to Re JRL (at [45]): Such considerations lay behind the salutary warning given in Re JRL; Ex parte CJL that judicial officers in Australia were obliged to discharge their professional duties unless disqualified by law. They were told not to accede too readily to suggestions of an appearance of bias, lest parties be encouraged to seek such disqualification without justification. Applications of that kind might sometimes be made in the hope of securing an adjudicator more sympathetic to a party's cause. Or they might be made because of the strategic advantage that may thereby be secured, especially the interruption of lengthy proceedings and the delays consequent upon obtaining a fresh start in a busy court or tribunal.

43 The test of reasonable apprehension of bias must be viewed from the position of the hypothetical lay observer, fully informed of the evidence and the circumstances in which the statements were made and having an understanding of way in which modern litigation is conducted. As noted in Johnson the test is an objective one and involves a test of reasonableness. 44 It is to be noted that the defendant himself in the cross-examination to which I have referred, conceded at least in relation to the second statutory notice that the statement in his letter responding to that notice, that there are no documents, would appear to be untrue.

45 I have referred to the defendant's evidence in which he said that he had prepared the REF and that in doing so he had referred to (and, I infer, relied upon) the ecological reports that he had. If, as is the fact, the defendant's responses to the statutory notices stated that there are no documents when it is also the fact that there were relevant documents, then the responses that he forwarded were clearly wrong. It is self-evident that if they were wrong they were also misleading. They were misleading because they would mislead the reader into believing, contrary to the facts, that there were no documents. This conclusion is plainly self-evident. It does not give rise to a reasonable apprehension of bias or an appearance to the fair-minded lay observer that I might not bring an impartial and unprejudiced mind to the resolution of the issues in this case. 46 In my opinion, the fair-minded hypothetical observer acting reasonably would not conclude that I am unable to bring an impartial and unprejudiced mind to the issues in this case or otherwise decide the case on its merits. Moreover, in applying the principles explained in Re Lusink, in Re JRL and in Johnson, that the ground for disqualification must be firmly established and that judges should not accede too readily to suggestions of appearance of bias, lead me to conclude that the defendant's notice of motion must be dismissed. Although not a reason for dismissing the motion, I note that this is the fifteenth day of this case and there will obviously be large costs in both monetary terms and court-hearing time if the case were to start against before another judge. 47 In conclusion, the alternative to what I did would have been to sit Sphinx-like, keeping my thoughts to myself, not disclosing them to the parties and springing then unannounced upon the parties at the moment of final judgment. I am sure that most defendants would prefer to know my thoughts before final judgment so that they could be met in the course of submissions. 48 In the present case it remains open, of course, to Mr Hemmings to argue that the responses to the statutory notices furnished by the defendant in this case were not misleading and I look forward with interest to hearing his submissions in that respect in due course.

49 The defendant's notice of motion is dismissed. The hearing will continue.

I hereby certify that the preceding 49 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

20/03/2007 - Typographical errors - Paragraph(s) par [29] delete "observed" insert "observer"par [46] delete "decided" insert "decide"

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