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: