Sufficient doubt to warrant the grant of leave?
32 The test for determining whether a judge is disqualified from hearing a case for apprehended bias 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": Nicholls at [31]. There is no dispute that the primary judge applied the right test. GSK's contention is that his Honour came to the wrong conclusion.
33 In our opinion his Honour's conclusion that GSK had waived its right to object was indeed wrong. A party will likely be held to have waived its right to object where the party or its legal representative knows the circumstances that give rise to the disqualification but acquiesces in the proceedings by not taking objection: Nicholls at [76]. Here, GSK's conduct did not amount to acquiescence. Had the matter been raised before the Full Court, as the primary judge suggested, it is inconceivable that it would have entertained the application. It is well established that it is for the judge assigned to hear the matter to decide whether he or she should withdraw for apprehended bias. The test formulated by the High Court assumes that, in the first instance, it will be applied by the judge concerned: Dr Melissa A Perry, Disqualification of Judges: Practice and Procedure, Discussion Paper (Australian Institute of Judicial Administration, 2001) at [2.39]. As the plurality observed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [74], "the ordinary, and the correct, practice" is for the judge to decide the matter for himself (or herself, as the case may be). In this case GSK approached the primary judge before the Full Court hearing to foreshadow its application. It only refrained from making it at the invitation of the judge. There is no room for the operation of the waiver doctrine in these circumstances.
34 But the primary judge's decision to dismiss the application was not based on the judge's conclusion about waiver. It was based on his conclusion that there was no reasonable apprehension of bias. On this question, there is no doubt that his Honour's conclusion was correct. For this reason, the prospective appeal is doomed to fail.
35 A number of preliminary observations should be made.
36 First, whether or not the suggested apprehension is reasonable must be considered in the context of ordinary judicial practice. A judge is not expected to sit in silence, Sphinx-like, while arguments are presented and will often form tentative opinions on matters in issue. Counsel are ordinarily assisted by hearing those opinions: Johnson v Johnson (2000) 201 CLR 568 at [13], [53] and [80]. Indeed, the exposure of those opinions is calculated to encourage a response from counsel. It is invariably an exhortation for assistance, even when it is expressed in apparently emphatic terms.
37 Secondly, the fair-minded lay observer is assumed to know the actual circumstances of the case: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87.
38 Thirdly, the fair-minded lay observer will note the possibility of a change in the evidentiary position between earlier and later proceedings: see, for example, British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 at [145] ("Laurie").
39 Fourthly, the fair-minded lay observer will also recognise that a professional judge is capable of departing from an earlier expressed opinion.
40 Fifthly, it is important to recognise that "disqualification flows from a reasonable apprehension that the judge might not decide the case impartially, rather than that he will decide the case adversely to a party": Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 at [32]; see also Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352.
41 There is nothing in the transcript or the reasons for judgment to suggest that the primary judge rejected Mr Hunter's evidence because he had formed an adverse view of his credibility. It is true that that is not the end of the inquiry. An apprehension of bias by reason of prejudgment might also arise where (absent necessity, special circumstances or consent) a judge sits to hear a case after (s)he has in a previous case "expressed clear views … about a question of fact which constitutes a live and significant issue" (Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 300).
42 In Livesey the judges hearing Mr Livesey's application had in an earlier case made an adverse finding about the credibility of a key witness. In Laurie a majority of the High Court held that comments made in an interlocutory judgment disclosed apprehended bias. The trial judge had, in earlier proceedings, made an unqualified finding that that the defendant had engaged in dishonesty and fraud. Although the trial judge suggested that the evidence might change, the majority said (at [145]) that "a reasonable observer would note that the … finding of fraud was otherwise expressed without qualification or doubt, that it was based on actual persuasion of the correctness of that conclusion". Moreover, the majority noted, the trial judge expressed himself in terms indicative of "extreme scepticism" about the defendant's denials and strong doubts about the possibility that different material might change things. The majority described the circumstances in Laurie as "unusual" and held that a reasonable observer might apprehend that at trial the judge might not change his mind, even in the face of different materials.
43 But this case is far removed from Livesey and Laurie. It concerned an application for an interlocutory injunction. The primary judge was resolving a point of construction at a prima facie level and on limited evidence. The fair-minded lay observer would appreciate as much. The views in question were formed "at a time when the whole of the proceedings before him had not been completed and there is nothing to indicate that they represented concluded views whatever course the proceedings might thereafter take": Re Morling; Ex parte Australian Meat Industry Employees Union (1985) 11 IR 299 ("Re Morling") at 301. In Re Morling Dawson J dismissed an application by the union for a writ of prohibition for apprehended bias when Morling J had made comments about the reliability of a witness in reasons for granting a permanent injunction when he was yet to hear the employer's damages case.
44 Neither the transcript nor the reasons supports the conclusion that a fair-minded lay observer might reasonably apprehend bias by reason of the prejudgment of the issues or the credibility of a witness. There is nothing to suggest that the primary judge might not be capable of considering afresh Mr Hunter's evidence at trial. Nor is there reason to think that his Honour's views about Mr Hunter's opinion might not change with the benefit of time, mature reflection, further argument, additional evidence and a full consideration of all the evidence. Mr Hunter did not give oral evidence at the hearing of the interlocutory application. It is inevitable he will do so at the final hearing. So, too, Mr Tiller. Mr Tiller's position might be discredited in cross-examination or undermined by other evidence. Moreover, his Honour's views at a final hearing will also be informed by the judgment of the Full Bench on the appeal from the second interlocutory injunction.
45 The transcript in this case does reveal a debate between bench and bar about Mr Hunter's position and the construction of claim 1. What it does not reveal is a judicial mind incapable of alteration. Nor does it give the appearance of prejudgment. Kirby and Crennan JJ observed in Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 283 ("Concrete") at [112]:
Sometimes judicial intervention and observations can exceed what is proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case. However, one thing that is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias.
(Footnotes omitted.)
46 All the comments of the primary judge must be read in context. GSK seems to approach the primary judge's remarks as expressing, at least in transcript, a final, immutable view. This is not correct. One example of this is in GSK's written submissions at para 19(c)(iv). The primary judge did not just make reference to Mr Hunter's view being "just nonsense" as GSK insinuated. The context was an admittedly forceful interrogation of counsel where the primary judge was referring to a submission based on the Australian Standard mentioned by Mr Hunter, and where he actually said, "just nonsense, isn't it", no doubt inviting an equally forceful response.
47 As in Concrete, the debate between bench and bar was robust and at times, the primary judge used emphatic language. But this would be readily understood by the fair-minded lay observer as part of the process of understanding and testing counsel's arguments with a view to reaching the right decision on the application before him as quickly as possible. The primary judge made that clear at various times during the exchange, for example at T44:4-6 ("I just want to articulate it to you so you can see where my mental block is coming from if I'm getting it wrong") and T93:17 ("I'm trying to tease out with you so I can understand - make sure I understand your case as best my frail mind can, and understand Ms Howard's case and work out what the answer I've got to give about it is").
48 The observation made by Lord Walker of Gestingthorpe for the Privy Council in Almeida v Opportunity Equity Partners Ltd [2006] UKPC 44 at [103] applies as much here as in Concrete where Gummow A-CJ referred to it at [4]:
[T]he judge's interventions were motivated, not by partiality, but by the wish to understand the evidence.
49 It is also clear from his Honour's reasons that his conclusions were reached at a prima facie level and not to the standard required for the purpose of a final determination.
50 This case does not raise any question of general principle about the operation of the docket system. In all courts, regardless of whether a docket system is in place, judges who hear interlocutory applications in which they come to "final" views as to issues of fact or credit may have to disqualify themselves. This will be the case whether the matter is in the judge's docket or not. No special rules apply because a particular proceeding is in the docket of a judge.
51 There is no reason to doubt the correctness of the primary judge's conclusion that nothing he said or did at the directions hearing on 14 June 2013 or during the argument at the second interlocutory hearing might cause a fair-minded lay observer to reasonably apprehend that his Honour might not bring an impartial mind to the resolution of the questions he will be required to decide at a final hearing.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop and Justices Middleton & Katzmann.