Gillett v Robinson

In summary, the plaintiffs contend that my findings on damages following the trial before me might create an impression of partiality or prejudice in the mind of a disinterested observer. That is the test as stated in Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-4 as follows: "... That principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it..." [Emphasis added] 19In Re JRL; Ex parte CJL, Mason J stated the principle as follows at 351: "The problem is governed by the principle that a judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the issues (Reg. v. Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, at pp 258-263; Livesey v. New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, at pp 293-294). This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free from bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done. It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established" (Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546, at pp 553-554; Watson, at p 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12, at p 14; 32 ALR 47, at pp 50-51). 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." 20In Klewer, Davies AJA said this at [20]: "[20] In my view, the last paragraph of his Worship's reasons raised no apprehension of bias on his part. He had already made it clear that his handling of the proceedings in which Mrs Klewer had been involved did not, in his view, raise any reasonable apprehension of bias. In this circumstance, his Worship's remarks did not suggest that, in his view, there was any reasonable apprehension of bias. His Worship simply referred to what he regarded as "good policy". His Worship was incorrect in that view for it is not good policy and certainly not appropriate that a judicial officer should disqualify himself just because one of the parties before him has lodged a complaint with the Independent Commission Against Corruption. A judicial officer should disqualify himself only if there are facts which raise a reasonable apprehension of bias on his or her part. Nevertheless, the reference to "good policy" did not suggest that Magistrate Rheinberger would fail to be impartial and unprejudiced in his handling of Mrs Klewer's case. Indeed, the reference to what he regarded as good policy showed that the Magistrate kept in the forefront of his mind the need to be and to be seen to be without bias." 21I have reviewed my reasons for judgment in the principal proceedings as well as the whole of the transcript. Much of what passed between Mr Coren and me during the trial is actually included in my judgment. Doing the best I can, it does not seem to me that any comments that I made during the course of the proceedings fell outside what might generally be considered to be the ordinary interplay between counsel and the bench. If others were in due course to form a different view, the authorities to which I have been referred do not in my opinion excite a conclusion that I should recuse myself for apprehended bias before that occurs. 22I am also comforted in this view by the fact that I did not, nor did either party, make any reference to costs throughout the proceedings, either in a way that was intended to cast the other party in a poor light, or was capable of characterising the conduct of anyone appearing in the case in a particular way. This is important in the sense that the proceedings were not conducted in an atmosphere generated by any expectation that a particular costs order was inevitable or even likely. Even if it were, the principles adverted to in Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at [178]-[180] would appear presently to be more than apposite: "[178] In cross-examination of Mr Barrak, his Honour raised some points which the witness himself said were important and significant. It was certainly not wrong for his Honour to point out to the witness that written material to which the witness was referring was not in evidence. After a number of exchanges his Honour made it clear that he was telling the parties what he provisionally had in mind but emphasising that he was keeping an open mind, and was anxious neither to foreclose his decision, nor to cause any person to think that he might have done so. At one point, his Honour said to counsel for the respondents that he hoped that he had some better submissions than the one that he had just made. Almost every counsel of any experience has, on occasion, been the subject of a judicial observation of that kind.