Global Capital Property Fund Limited (in liquidation) v Point Bay Developments Pty Ltd [2025] FCA 1597

(a) first, that a fair-minded lay observer might perceive that I had prejudged significant issues in this proceeding in light of findings I made in a proceeding brought by the Australian Securities and Investments Commission (ASIC) (ASIC proceeding), which are set out in Australian Securities and Investments Commission v United Global Capital Pty Ltd [2024] FCA 1215 (ASIC v UGC); and

(b) further or alternatively, that a fair-minded lay observer might perceive that extraneous information I received in the course of the ASIC proceeding might influence my determination of significant issues in this proceeding.

1. The relevant principles are well established and were not in dispute.
2. The relevant test for disqualification for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
3. The application of the criteria for the determination of an apprehension of bias involves three steps:

(a) first, identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits;

(b) second, articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and

(c) third, assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer: Ebner at [8] (Gleeson CJ, McHugh, Gummow and Hayne J); QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15 at [38] (Kiefel CJ and Gageler J, as his Honour then was).

1. In Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 300 (Mason, Murphy, Brennan, Deane and Dawson JJ), it was said that a fair-minded observer might entertain a reasonable apprehension of bias by reason of pre-judgment if a judge sits to hear a case at first instance after the judge has, in a previous case, expressed clear views about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact.
2. In Australian National Industries Ltd v Spedley Securities Ltd (In liquidation) (1992) 26 NSWLR 411 at 438, Mahoney JA (with whom Meagher JA agreed at 447-8) stated:

1. A reasonable apprehension of bias may also arise from a decision-maker receiving extraneous information, including knowledge of some prejudicial but inadmissible fact or circumstance, because of its subconscious influence. In Getswift Ltd v Webb [2021] FCAFC 26; (2021) 283 FCR 328 at [44]-[45] (Middleton, McKerracher and Jagot JJ), the Full Court stated:

(2000) 205 CLR 337

(1992) 26 NSWLR 411

(2021) 283 FCR 328

(1983) 151 CLR 288

(2023) 279 CLR 148