GOLDSMITH -v- LEGAL SERVICES AND COMPLAINTS COMMITTEE [2023] WASCA 136 (21 September 2023)

Circumstances giving rise to a reasonable apprehension of bias

1. The circumstances alleged to give rise to a reasonable apprehension of bias in this case were relatively confined and were uncontroversial at the hearing of the appeal.
2. Prior to the Deputy President's appointment as a judge of the District Court of Western Australia on 31 January 2022, both his Honour and the complainant practised as barristers at Francis Burt Chambers. Francis Burt Chambers is a large set of barristers' chambers which comprised more than 130 members at the time of the disciplinary proceedings. Its operations are managed by WA Bar Chambers Ltd. The complainant was a director of WA Bar Chambers from November 2001 to November 2019. The Deputy President was a director of WA Bar Chambers from November 2010 to November 2015 and from April 2016 to January 2022.[7]
3. The association on which senior counsel for the appellant relied as giving rise to a reasonable apprehension of bias was the period of over 8 years during which the Deputy President and the complainant served together on the board of directors of the company operating Francis Burt Chambers. Reliance on certain other aspects of the association between the Deputy President and the complainant was abandoned at the hearing of the appeal.[8]

Reasonable apprehension of bias arising from prior association

1. In our view, the general principles as to apprehended bias applicable to a judge also apply to a judicial member of the Tribunal in the determination of contentious proceedings.
2. Reasonable apprehension of bias will be established if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. In applying this principle, it is necessary to identify what is said might lead a judge to decide a case other than on its legal or factual merits, and to articulate a logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The reasonableness of the apprehension may then be assessed.[9] The test is objective and the fair‑minded observer is someone who is aware that the person who is being observed is a professional judge whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial.[10] However, the observer is cognisant of human frailty and understands that information and attitudes consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-makers.[11]
3. It is well established that a reasonable apprehension of bias by prejudgment may arise from past association between a decision-maker and a person interested or otherwise involved in the proceedings.[12]
4. An illustration of the application of the apprehended bias test to a past association between a judge and a witness may be found in the decision of the New South Wales Court of Criminal Appeal in McIver v The Queen.[13] That case concerned a judge-alone trial of an accused for historic child sexual offences allegedly committed against four complainants. During cross-examination of one of the complainants, the trial judge appreciated that the complainant had worked at a butcher which she used to attend some 18 years previously. The complainant had regularly served the judge, who observed to counsel that she had bought a lot of meat from him and she was 'sure he gave me the best cuts'.[14] The credibility and reliability of the complainant was obviously central to the contested issues at that trial. The court held that a reasonable apprehension of bias arose in those circumstances, in which a fair-minded lay observer might reasonably think that, where a good relationship existed over a lengthy period, there would at least be an unconscious predisposition in favour of that person compared with the stranger on the other side of the proceedings.[15]
5. The risk of unconscious bias is significant in this context. As was observed by the Supreme Court of the United States,[16] in a passage approved in Australia:[17]

[R]eason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconscious feelings may operate in the ultimate judgment, or may not unfairly lead others to believe they are operating, judges recuse themselves. They do not sit in judgment. They do this for a variety of reasons. The guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact.

1. This is particularly so in cases involving the assessment of the credibility and reliability of witnesses. One common way in which a reasonable apprehension of bias may arise is where a judge has made findings in a previous case about the credibility of a witness. In Livesey v New South Wales Bar Association the High Court, while recognising that each case must be determined by reference to its particular circumstances, observed:[18]

[I]n a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either 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. (emphasis added)

1. There is, however, no absolute rule against a judge who has formed a view of the credibility of a witness in hearing previous matters from ever sitting in a subsequent case in which the witness may give evidence. As was noted in Vakauta v Kelly,[19] the requirement of the reality and the appearance of impartiality in the administration of justice is one which must be observed in the real world of actual litigation. In Vakauta, the court drew a distinction between preconceptions of the expertise or reliability of the professional opinions of expert witnesses who may regularly appear before the courts and the credit or trustworthiness of a non-expert witness whose evidence constitutes a live and significant issue in the case.
2. Equally, in cases involving the professional discipline of members of a relatively small legal profession before the Tribunal, it must be recognised that members of the Tribunal will frequently have had incidental professional contact with members of the profession who may be the subject of, or witnesses in, the proceedings. This is illustrated by the fact that, in the present case, all members of the coram of this court have had prior associations with the complainant.[20] Not every incidental association of that kind will prevent a member of the Tribunal from dealing with a matter involving a practitioner who is known to them to some extent. The question is one of fact and degree which will require an assessment of both the nature of the prior association, the issues raised for the Tribunal's decision and the potential significance of the evidence of a practitioner known to a panel member to the facts which the Tribunal is required to determine. In considering whether a previous connection with a participant in the proceedings gives rise to a reasonable apprehension of bias, it is relevant to consider all features of the connection, including the nature, duration, intensity and proximity of the association between the judge and the participant.[21]
3. An objection to the constitution of a multi-member court based on an allegation of bias on the part of one of its members raises a question of the jurisdiction of the whole court. Reasonable apprehension of bias on the part of one member deprives the court of jurisdiction to proceed to hear and determine the matter. There is no inquiry into the impact the member's participation may have had on the outcome of the case.[22] The same principles must also be applied to the Tribunal when it is constituted by multiple members.

Reasonable apprehension of bias in the present case

1. In the present case, the circumstance which is relied upon as giving rise to a reasonable apprehension of bias is not merely the fact that the Deputy President and complainant were members of the same large barristers' chambers. That would have been plainly insufficient to give rise to any reasonable apprehension of bias. Rather, the relevant circumstance is the joint membership of the board of directors of the company operating Francis Burt Chambers for a period of over 8 years occurring between November 2010 and November 2019 (omitting the period between November 2015 and April 2016 when the Deputy President was not a director).
2. The logical connection between that circumstance arises from a combination of:
   1. the likelihood that the Deputy President would have formed a view of the honesty and reliability of the complainant while they were directors; and
   2. the impact of that view on the assessment of the credibility and reliability of the complainant's evidence on a critical issue in the disciplinary proceedings.
3. The association between the Deputy President and the complainant ran for a considerable period of over 8 years. The association was relatively recent, with the complainant ceasing to be a director in November 2019. As reflected in the terms of the Deputy President's disclosure (set out at [42] below), the end of the complainant's role as director did not end all association between the two barristers.
4. There is no direct evidence as to the regularity of board meetings or official contact between the directors of WA Bar Chambers. However, a fair-minded observer would infer from the size, nature and scope of the business of Francis Burt Chambers that contact between the two directors must have been at least relatively regular. The association involved the Deputy President and complainant, as directors of the operating company, cooperating in the pursuit of a commercial venture in a relationship which required a significant degree of mutual trust to be effective. It was inevitable that the Deputy President must have formed some view of the honesty and reliability of the complainant during that relationship.
5. The credibility and reliability of the complainant's evidence as to what was said in the 29 October 2016 phone call was critical to the resolution of the disciplinary proceedings. That was particularly so in relation to the respondent's first and third disciplinary grounds of complaint. The first ground of complaint turned on the terms of the engagement agreed in that phone call. The third ground of complaint turned on whether the appellant knowingly misstated what had been agreed in his defence to the Magistrates Court proceedings. In addition, as the Tribunal ultimately found,[23] the terms of the fees agreement and the appellant's knowledge of those terms was capable of informing a conclusion as to his motivation for making complaints against the complainant which was the subject of the second disciplinary ground of complaint before the Tribunal.
6. The logical connection between the subject matter of the apprehension and a deviation from the course of deciding the case on its merits lay in the potential for the views formed as to the complainant's character from past association to affect the Deputy President's assessment of the credibility and reliability of the complainant's evidence in the proceedings. A fair-minded observer might well apprehend that the prior association might affect the assessment of the complainant's credibility in that manner. A fair‑minded observer might also apprehend that it would be difficult if not impossible for the views formed during a lengthy professional association to be completely disregarded in assessing the complainant's evidence.
7. The prior association between the Deputy President and the complainant was such as to give rise to a reasonable apprehension that the Deputy President might have formed preconceived views as to the complainant's honesty and reliability during a long association as members of a board of directors. A fair-minded properly informed observer might apprehend that those preconceived views might, consciously or unconsciously, deflect the Deputy President from assessing the credibility and reliability of the complainant's evidence based only on an assessment of the evidence given in the Tribunal. That reasonable apprehension would arise in proceedings which were likely to, and did in fact, largely turn on an assessment of the credibility and reliability of the complainant's and appellant's conflicting evidence.
8. There is no evidence as to whether the views formed by the Deputy President about the complainant's character during their joint tenure as directors were positive or negative. That does not affect the apprehension of bias test in this case. The requirement is for impartiality, and in determining whether a reasonable apprehension of bias arises in the circumstances of the present case it does not matter which way the apprehended partiality runs. At best, if it were known that the Deputy President had an adverse view of the complainant that might be relevant to the question of relief in an appeal brought by the appellant. However, those views are not known and cannot affect the conclusion as to the existence of a reasonable apprehension of bias in this case.
9. In the circumstances of this case, a fair-minded lay observer might reasonably apprehend that the Deputy President might not bring an impartial mind to the resolution of the question his Honour was required to decide in the disciplinary proceedings. Absent waiver on the part of the appellant, the Deputy President should not have formed part of the Tribunal panel which determined the disciplinary proceedings.
10. In reaching this conclusion, we reiterate the following observations of the High Court in Livesey:[24]

Once it is accepted that a judge should not automatically stand aside whenever he is requested so to do, it is inevitable that appellate courts, removed from the pressure of a possible need for immediate decision and enjoying the advantages both of hindsight and, conceivably, further material and information, will on occasion conclude that a decision of a judge at first instance that he should sit was mistaken and has resulted in a situation where one of the parties or a fair-minded observer might entertain a reasonable apprehension of bias or prejudgment. Such a conclusion does not involve any personal criticism of the judge at first instance or any assessment of his qualities or of his ability to have dealt with the case before him fairly and without pre-judgment or bias. It is simply an instance of the ordinary working of the appellate process in which the views of the judges who constitute the appellate court prevail over the views of the judge or judges who constituted the court from which the appeal is brought.

1. In the present case, there was no application for the Deputy President to recuse himself from the disciplinary proceedings. However, the Deputy President must have been satisfied that his past association with the complainant did not give rise to a reasonable apprehension of bias, otherwise he would not have sat on the case. For the reasons explained in the passage just quoted, the fact that, with the benefit of counsels' submissions on appeal, we have taken a different view on the question of apprehended bias does not imply any personal criticism of the Deputy President.

1. A party to proceedings may waive their right to object to a judge or tribunal member continuing to hear and dispose of the case. The principle was stated on the following terms by Toohey J (Brennan, Deane & Gaudron JJ concurring) in Vakauta:[25]

There is no reason why, in authority or in principle, a litigant who is fully aware of the circumstances from which ostensible bias might be inferred, should not be capable of waiving the right later to object to the judge continuing to hear and dispose of the case. ...

In the result, when a party is in a position to object but takes no steps to do so, that party cannot be heard to complain later that the judge was biased. It was suggested during argument that this situation may be one, not of waiver, but of estoppel. ... The situation is one in which the law prevents a party to litigation from taking up two inconsistent positions; he is held to his election. While, of course, the community has an interest in knowing that cases are decided impartially, that interest is not affected adversely by a doctrine which refuses a party to litigation the opportunity to resile from a position he has taken. The appellant should be held to have waived any entitlement to challenge what was said by his Honour during the hearing. (emphasis added)

1. In the same case, Dawson J observed:[26]

It cannot be the position that a party can wait to see whether the outcome of a case is favourable to him before raising an objection, the availability of which he was previously aware, on the ground of bias.

There can, I think, be no doubt that an objection upon the ground of bias can be waived. Even where it is a question of the public apprehension of bias, the parties themselves must be competent to waive the objection. Although justice must manifestly be seen to be done, where a party, being aware of his right to object, waives that right, there will be little danger of the appearance of injustice. (emphasis added)

1. In Smits v Roach,[27] Gleeson CJ, Heydon and Crennan JJ expressed the principle in the following terms:

It has been held in this Court, on a number of occasions, that an objection to the constitution of a court or tribunal on the ground of apprehended bias may be waived, and that, if a litigant who is aware of the circumstances constituting a ground for such objection fails to object, then waiver will result. (emphasis added)

1. In Michael Wilson & Partners Ltd v Nicholls,[28] the plurality expressed the principle in the following terms:

It is well established that a party to civil proceedings may waive an objection to a judge who would otherwise be disqualified on the ground of actual bias or reasonable apprehension of bias. ... If a party to civil proceedings, or the legal representative of that party, knows of the circumstances that give rise to the disqualification but acquiesces in the proceedings by not taking objection, it will likely be held that the party has waived the objection. (citations omitted) (emphasis added)

1. In the above passages quoted from Vakauta, Toohey J referred to a litigant being 'fully aware of the circumstances from which ostensible bias might be inferred' and being 'in a position to object'. Dawson J referred to a party 'being aware of his right to object'. The passage from Smits refers to a litigant's awareness of the circumstances constituting a ground for objection. The passage from Michael Wilson & Partners refers to the party's knowledge of circumstances that give rise to the disqualification. In none of the above cases was the content of the knowledge at issue. In Vakauta and Michael Wilson & Partners, the relevant circumstances arose from events occurring in the court room. In Smits the party's counsel had knowledge of the relevant circumstances (which was attributed to the party).
2. It seems clear that it is not necessary for a party said to waive the right to object on grounds of apprehended bias based on past association to be aware of every detail of the relationship. However, in our view, before a party can be said to have waived the right to object, the party must at least be aware of circumstances which would be sufficient to ground a proper objection.
3. In the present case, the Deputy President disclosed the following facts to the parties at a directions hearing prior to the substantive hearing of the disciplinary proceedings:[29]

There is one other matter that I wish to address. In the interests of full disclosure, I wish to advise the parties that I know [the complainant]. Until my appointment on 31 January, [the complainant] and I were both barristers at Francis Burt Chambers. That set of chambers is a large set of chambers. It has, at present, more than 130 members. [The complainant] and I both served on the board of Francis Burt Chambers and both as chairman. I served as chair immediately before my appointment, and in that role, I had dealings with [the complainant] as a licensee.

Now, had [the complainant] merely been counsel, I wouldn't have raised this matter at all. Barristers regularly appear as counsel before judges who were previously colleagues at chambers, but he is a witness, and his credibility will be in issue. I raise the matter to ensure full disclosure. [The Deputy President then raised an issue of association with another witness which is presently immaterial.] I raise those matters, and if anyone wishes to be heard on either of them, can they, please, raise it in advance of the hearing.

1. Neither party took any objection to the Deputy President participating in the proceedings prior to or during the substantive hearing of the disciplinary proceedings.
2. The difficulty with the terms in which the disclosure was made is that it did not indicate that the Deputy President and the complainant had served on the board of directors at the same time. Further, the disclosure does not indicate that the Deputy President and the complainant served together as members of the board for over 8 years. The disclosure that they 'both served on the board ... and both served as chairman' tends to suggest that the service on the board was as chairman (which would ordinarily be consecutive rather than concurrent).
3. The unchallenged evidence of the appellant in the appeal is that he subjectively understood the Deputy President's disclosure in the terms suggested above. In an affidavit sworn on 30 March 2023, the appellant deposes that he was unaware, until March 2023, that the Deputy President and complainant served on the board of directors at the same time. The appellant also deposed:[30]

I did not make any enquiries about his Honour Judge Jackson following the interlocutory hearing on 22 February 2022 because of his Honour's comment that he and [the complainant] were both members of chambers with more than 130 barristers. Whilst his Honour said that they had both served on the board of Francis Burt Chambers and had both served as chairman of the board of chambers, I did not understand from those words that they had served on the board at the same time. I formed the impression, from his Honour's Judge Jackson's comments, that his Honour Judge Jackson and [the complainant] had not had a close association with one another.

1. That is, the appellant did not know of the circumstances on which our finding as to the existence of a reasonable apprehension of bias is based. The appellant appeared in person in the disciplinary proceedings so there was no relevant knowledge of any legal representative that could be attributed to the appellant. Further, notice of the critical facts - that the Deputy President and complainant had served together on the board of directors for over 8 years - was not objectively conveyed by the terms of the Deputy President's disclosure. Those facts were critical to the existence of something more than incidental professional contact between two legal practitioners which would not, ordinarily or in the circumstances of this case, give rise to a reasonable apprehension of bias by reason of past association with a witness.
2. In these circumstances, the appellant did not have actual or attributed knowledge of circumstances which would give rise to a reasonable apprehension of bias on the part of the Deputy President. The facts of which the appellant was aware - that the Deputy President and complainant had both been members of Francis Burt Chambers and served as chairman of the board of directors - were not sufficient to give rise to any reasonable apprehension of bias. The appellant was not aware of circumstances that give rise to any disqualification or proper ground for objecting to the Deputy President's participation in the proceedings. He cannot be said to have waived his right to object or acquiesced in the Deputy President participating in the disciplinary proceedings in these circumstances.
3. We do not accept the respondent's submission that the fact that the relevant circumstances could have been discovered by the appellant on a search of publicly available information gives rise to waiver on his part. A litigant has no duty to investigate the present or past personal affairs of a judge determining their case and there are sound public policy reasons against the formulation of such a duty. In Limbo v Little,[31] the Full Court of the Supreme Court of the Northern Territory considered a referred question as to whether a litigant may seek to ascertain by direct questioning of a judge any facts concerning the judge which, if so disclosed, might lead to an application that the judge disqualify himself or herself on grounds of apprehended bias. In answering that question in the negative, Martin J (Kearney & Rice JJ agreeing) observed:[32]

Usually, the facts upon which it might be thought a reasonable apprehension of bias could arise, are known to the litigants or at least one of them. Sometimes the judge, as a matter of judicial integrity, makes facts known to the parties which he considers ought to be disclosed, so that the parties or either of them can consider whether a reasonable apprehension of bias could arise. ... The facts which a judge might disclose are generally facts which are known to some members of the public, not necessarily to the parties or their advisers, but it is for the judge to decide for himself whether a disclosure should be made, not for a litigant to venture upon a 'fishing expedition' with a view to ascertaining whether there is something personal to the judge, and not known to him, which could found an application that the judge disqualify himself. ... If impartiality is lacking, or could be fairly thought to be lacking, it may well become evident sooner or later, but it is not for the litigant to pry into the judge's background. It is for the judge to disclose a fact if it seems to him that it may be thought to have a bearing upon his neutrality.

1. While these remarks are directed to questioning of a judge by a litigant, in our view litigants should likewise not be encouraged to undertake private investigations into the personal associations and affairs of judges assigned to their case fishing for information which might support a recusal application. The question of waiver is not to be answered by reference to investigations which could have been undertaken, but rather is to be addressed by reference to the actual or attributed knowledge of the parties. That question is to be addressed in a context where, as a matter of prudence and professional practice, a judge who does not recuse himself or herself should bring to the attention of the parties as soon as practicable any fact or circumstance which gives rise to a serious possibility of potential disqualification for apprehended bias.[33] Where the relevant facts or circumstances do not concern events in the courtroom and are not otherwise known to the parties, the question of waiver is to be considered in light of the information conveyed by the judge's disclosure.
2. The appellant was in no position to object to the Deputy President's participation in the disciplinary proceedings, as he did not have knowledge of facts which could support a recusal application prior to the Tribunal's determination. No waiver could arise in these circumstances.

1. Given the above conclusions, a new hearing before the Tribunal, at which the relevant facts will be found afresh, is necessary for justice to be done and be seen to be done in this case. It is unnecessary and undesirable in these circumstances to deal with the appellant's other grounds of appeal.
2. In any event, we note that ground 2 complains of an alleged denial of procedural fairness due to non-disclosure of information which the appellant now possesses and which will be available for his use, to any extent it may be relevant, at a new hearing. Ground 4 essentially complains about the Tribunal's reasons in the present case and becomes moot given the orders which we would make. Grounds 5 and 6 were abandoned at the hearing of the appeal.
3. We also note that ground 3 raises a question as to the approach taken to the construction of the term 'professional misconduct' in s 403 of the LP Act. The Tribunal found that s 403 comprehended the following meaning of the term 'unprofessional conduct' as explained in Kyle v Legal Practitioners' Complaints Committee:[34]

[C]onduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, or that, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence.

1. While Kyle was decided under the Legal Practitioners Act 1893 (WA), the formulation of the test has been regularly applied in this State under later legislation. Examples include the decisions of this court under the LP Act in Staffa v Legal Profession Complaints Committee,[35] and Legal Profession Complaints Committee v Lourey.[36]
2. The appellant contends that a different approach, which he submits is supported by the New South Wales Court of Appeal in Council of the NSW Bar Association v EFA,[37] should have been applied. The appellant contends that the approach requires that the practitioner's conduct would justify a finding that he or she is not a fit and proper person to engage in legal practice. EFA concerned s 297 of the Legal Profession Uniform Law (NSW), which contains a similarly worded definition of 'professional misconduct' to s 403 of the LP Act. The court held that there is, in New South Wales, no category of professional misconduct constituted by conduct that would reasonably be regarded (by professional peers) as 'disgraceful or dishonourable'.[38]
3. There might in the future be a need to reconcile a difference of approach between the New South Wales courts and the courts of this State under the Legal Profession Uniform Law which is now in force in this State. However, in proceedings under the LP Act we would only depart from the established approach derived from Kyle if the previous decisions of this court, including in cases such as Staffa and Lourey, were shown to be plainly wrong in a case where resolution of the question was necessary for the court's decision.[39] Clearly the resolution of the question is not necessary for the resolution of the current appeal. Given the ground on which the appeal has been allowed, it is undesirable to say anything more about the resolution of the issue in this appeal. It is appropriate for the Tribunal to continue to apply the established test in cases determined under the LP Act until such time, if ever, as the approach reflected in Kyle is over-ruled by this court or the High Court of Australia.
4. It is also unnecessary and inappropriate for this court to say anything about the merits of the respondent's cross-appeal against the

penalty decision given that the penalty orders fall with the challenged conduct findings. Leave to cross-appeal should be refused on the basis that the cross-appeal has been rendered redundant by the success of ground 1 of the appellant's appeal.

1. For the above reasons, the following orders should be made in the appeal and cross-appeal.

1. Leave to appeal is granted. 2. The appeal is allowed. 3. The following orders made by the Tribunal in VR 14/2020 are set aside:

(a) orders 1 and 2 of the orders made on 20 May 2022;
>
> (b) order 2 of the orders made on 11 November 2022; and
>
> (c) order 1 of the orders made on 6 December 2022.

1. The matter is sent back to the Tribunal for reconsideration, with the hearing of further evidence. 2. On reconsideration, the Tribunal is not to be constituted by any of the members who made the original decision. 3. Leave to cross-appeal is refused. 4. The cross-appeal is dismissed.
2. We would hear from the parties on the question of the costs of the disciplinary proceedings, the appeal and the cross-appeal.

1. I have the considerable advantage of having read the reasons for decision of Mazza & Mitchell JJA in draft.
2. I agree with their Honours that ground 1 is established. It follows that the appeal must be allowed and the cross-appeal falls away. As ground 1 is established it is not necessary to deal with grounds 2 ‑ 4. I decline to do so. Grounds 2 and 4 become redundant so far as the matter is to be sent back to the Tribunal for reconsideration. The legal question raised by ground 3 should, in my opinion, await an appeal in which that question is determinative.
3. In upholding ground 1 it is not necessary to repeat the background facts as recounted by Mazza & Mitchell JJA in their joint reasons. Nor is it necessary for me to explain why I accept that the prior association between the Deputy President and the complainant was such that a fair-minded lay observer might reasonably apprehend that his Honour might not bring an impartial mind to the critical factual contest between the appellant and the complainant. I agree with Mazza & Mitchell JJA's joint reasons on this aspect of ground 1.
4. I write separately, however, to state my own reasons on the waiver question.

Applicable legal principles: waiver of right to object to constitution of court or tribunal for reasonable apprehension of bias

1. In civil proceedings it is settled that there may be waiver of an objection to the constitution of a court or a tribunal on the ground of reasonable apprehension of bias.[40]
2. The parties advanced different juridical underpinnings for the doctrine of waiver in this context. Both relied on Vakauta v Kelly.[41] The appellant relied on Toohey J's explanation that this kind of waiver is founded on an election between two inconsistent positions.[42] In this respect, as Toohey J stated earlier in Vakauta, when a party is in a position to object but takes no steps to do so, that party cannot be heard later to complain.[43] According to the appellant, the proper application of the doctrine thus required that the person said to make the election have a free and fair choice. The respondent relied on the reasons of Brennan, Deane & Gaudron JJ in Vakauta. Their Honours observed that it would be 'unfair and wrong' to give a party who does not object the advantage of an effective choice between accepting a favourable judgment or rejecting an unfavourable one.[44]
3. In the present case the suggested difference is more theoretical than real. Both rationales require that the party be aware of the circumstances giving rise to the right to object on the ground of reasonable apprehension of bias. Waiver occurs where the party then allows the trial or other hearing to continue for a sufficient time so as to show that he or she does not intend to exercise the right to object. The true issue in the present case concerns the extent to which the party must be aware of the circumstances giving rise to the right to object.
4. In Vakauta v Kelly Toohey J referred to a litigant who is 'fully aware' of the circumstances from which the reasonable apprehension of bias might be inferred.[45] Dawson J referred to merely 'being aware' of the right to object.[46] The 'fully aware' formulation is consistent with what was stated by an earlier unanimous High Court in Re Alley; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation.[47] However, subsequent expressions of the principle have referred to the party knowing or being aware of the relevant circumstances without the qualifier that he or she be 'fully' aware.[48] More recently, in Charisteas v Charisteas the High Court stated that there was no waiver in the absence of 'informed consent'.[49] It is difficult to see how there could be informed consent unless the party was fully aware of the circumstances that give rise to the reasonable apprehension of bias.
5. The preponderance of Australian intermediate appellate court authority uses the 'fully aware' formulation. In Kennedy v Cahill the Full Court of the Family Court of Australia referred to the necessity for the aggrieved party to have 'full knowledge of all surrounding facts and circumstances' before he or she could be held to have waived his or her right to object.[50] A more recent decision of the Full Court of the Family Court unambiguously adopts the 'fully aware' formulation.[51] A slightly different formulation is found in Carver v Law Society of New South Wales.[52] There Powell JA (Stein JA & Sheppard AJA agreeing) put the issue in terms of whether the party had 'appropriate knowledge' of the facts which would clearly have given rise to the right to object.[53] What is 'appropriate' is no doubt informed by the rationale of the doctrine of waiver. In short separate reasons Sheppard AJA observed that, so far as there was reliance on waiver, the facts known to the party asserting reasonable apprehension of bias were 'never sufficient' to enable the party to make an 'informed judgment' about the matter.[54]
6. The respondent directed the court to Police v Mahon[55] on the extent of the information that must be available to a party before he or she is in a position to waive an objection on the ground of reasonably apprehended bias. There the Court of Appeal in South Australia acknowledged that a number of cases emphasised the necessity for a party to be 'fully informed' of the facts that might support a bias objection before waiver can operate.[56] The Court of Appeal went on to state:

[I]t has been said that a party must have 'full knowledge of all the facts relevant to the decision whether to waive or not' [Locabail (UK) Ltd v Bayfield Properties Ltd [1999] EWCA Civ 3004; [2000] QB 451 [15]]. However it has also been said that the party need only know the 'nature of the case rather than the detail' [Jones v DAS Legal Expenses Insurance Co Ltd [2003] EWCA Civ 1071 [36]]. Professor Groves has expressed the view that the 'requirement to be informed is not absolute' [M Groves Waiver of Natural Justice [2019] AdelLawRw 56; (2019) 40(3) Adelaide Law Review 641, 651]. The cases show that a great deal turns on the particular circumstances of the case, including what has been disclosed or is otherwise apparent, together with the context in which this occurred.[57] (original emphasis)

1. In Police v Mahon, in the course of sentencing, a magistrate revealed for the first time that one of the victims of the defendant's offending was known to the magistrate. The Court of Appeal considered that counsel could have inquired and sought more information. But, in the Court of Appeal's opinion, the disclosure made was sufficient to alert the parties to the issue, namely, the potential for disqualification by association. The defendant, by his legal representative, knew both that a potential objection was available and the nature of that potential objection. Accordingly, the disclosure was sufficient to found a waiver.[58]
2. While the requirement has not always been expressed in terms that the party must be 'fully aware' of the circumstances from which the reasonable apprehension of bias might be inferred, I consider this to be the requirement if waiver is to be found. The language of 'fully aware' was the formulation adopted by a unanimous High Court in Re Alley. That formulation, or variations of it, has been employed in various Australian intermediate appellate court decisions. And the formulation is consistent with and better effectuates the stated rationales for the doctrine of waiver in the present context.
3. It should not be thought, however, that the requirement that a party must be 'fully aware' of the circumstances from which the reasonable apprehension of bias might be inferred requires that he or she be aware of every minor detail. Questions of apprehended bias must be assessed in the real world of actual litigation;[59] so too must any question of waiver. In this regard it is instructive to repeat what was said by the Court of Appeal of England and Wales in the case of Jones v DAS Legal Expenses Insurance Co Ltd (one of the decisions referred to in Police v Mahon). There the Court of Appeal stated that when a judicial officer disclosed issues relevant to a possible issue of apprehended bias:

A full explanation must be given to the parties. That explanation should detail exactly what matters are within the judge's knowledge which give rise to a possible conflict of interest. The judge must be punctilious in setting out all material matters known to him.[60]

1. Later, justifying the observation in Police v Mahon that the requirement is not absolute, the Court of Appeal in Jones v DAS Legal Expenses Insurance Co Ltd stated:

Waiver would never operate if 'full facts' meant each and every detail of factual information which diligent digging can produce. Full facts relevant to the decision to be taken must be confined to the essential facts. What is important is that the litigant should understand the nature of the case rather than the detail. It is sufficient if there is disclosed to him all he needs to know which is invariably different from all he wants to know.[61] (original emphasis)

1. This exposition is consistent with the 'fully aware' formulation in the Australian cases. If the litigant is to be taken to have given informed consent, or to have made an informed judgment, and thereby to have waived a right to object, then he or she must have knowledge of what needs to be known so as to be in a position to object to the constitution of a court or a tribunal on the ground of reasonable apprehension of bias. The question is one of fact and degree. Often there will be a qualitative aspect to whether a particular matter is material - or essential - rather than mere detail.
2. In the present context there is no 'duty' of disclosure - in the sense of rights and correlative obligations - imposed on judicial officers or tribunal members.[62] However, disclosure assists in securing the object that justice is seen to be done. Judicial officers and tribunal members routinely make appropriate disclosures to protect and maintain the integrity of the judicial or administrative process and the due administration of justice. In that respect it is well understood that, as a matter of prudence and professional practice, judicial officers and tribunal members should disclose interests and associations if there is a serious possibility that they are potentially disqualifying.[63] Accordingly, no consequence ought attach to the non-disclosure of a fact or issue that could not possibly support a claim of reasonable apprehension of bias.
3. In making disclosure of potentially disqualifying matters a judicial officer or tribunal member must guard against partial or selective disclosure. The danger of partial disclosure was adverted to in Taylor v Lawrence.[64] If there is partial disclosure, and the litigant learns this is the position, the partial disclosure is naturally likely to excite suspicions even where those concerns are unjustified. If disclosure is made, then full disclosure must be made.[65]

Waiver in the present case: the parties' submissions

1. The respondent submitted that, to the extent that grounds for a reasonable apprehension of bias existed, the appellant had waived his right to object.
2. The respondent relied on the disclosure given by the Deputy President at a directions hearing about two weeks before the hearing commenced. The disclosure is reproduced at [42] above. The respondent accepted that the Deputy President raised the prior association in general terms rather than by giving specific date information. However, in the respondent's submission, this sufficiently informed the appellant of the relevant circumstances. The appellant's failure to make an objection meant he had waived the right to object.
3. According to the respondent:
   1. The appellant was informed of the essential facts, namely, that the complainant and the Deputy President had been members of the same set of barristers' chambers, were both members of the board of those chambers, had both chaired the board and that the Deputy President as chairperson of the board had dealings with the complainant.
   2. Those matters, and the fact that the Deputy President had raised the matter at all, were more than sufficient to allow the appellant to properly consider and make a recusal application.
   3. In any event, as was evident from the additional evidence adduced by the appellant on appeal, the appellant had the capacity to inform himself fully without questioning the Deputy President. In this respect senior counsel for the respondent submitted that the appellant was able to make the necessary inquiries. It was said that a litigant could not essentially close his or her eyes and assume, affirmatively, that there is no more than was disclosed by the judicial officer or tribunal member.
   4. It would be unfair and wrong for the appellant to be allowed to stand by and await the outcome of the proceedings in the Tribunal before raising a reasonable apprehension of bias claim after an adverse outcome.
4. The appellant submitted that the disclosure made at the directions hearing was inadequate. It was said that the Deputy President did not disclose the longevity or the extent of his association with the complainant. Nor, critically, was there disclosure that the Deputy President and the complainant had been on the board of the chambers at the same time. Accordingly, there was no waiver by the appellant of his right to object to the Deputy President sitting on the Tribunal. The appellant submitted that he did not have appropriate knowledge of the facts which gave rise to the right to object in the sense that he was not fully aware of the relevant circumstances.
5. In oral submissions senior counsel for the appellant emphasised that the Deputy President said that he was raising the matter he went on to disclose '[i]n the interests of full disclosure' (emphasis added). This created the impression that what followed constituted a disclosure of all of the relevant facts. There was, however, no disclosure that the Deputy President and the complainant had been on the board of the chambers at the same time. This was a crucial fact on which the appellant relied to establish the alleged reasonable apprehension of bias.

1. The appellant cannot be taken to have waived his right to object to the constitution of the Tribunal unless he was fully aware of the circumstances from which the reasonable apprehension of bias might be inferred. He must have known the essential facts, ie the nature of the relevant aspects of the prior association between the complainant and the Deputy President giving rise to a reasonable apprehension of bias (rather than the detail) so as to be in a position to make an informed judgment or to be taken to have given informed consent.
2. The respondent contends that the disclosure made by the Deputy President was more than sufficient for the appellant to consider his position and make a recusal application. It may be doubted whether the matters disclosed by the Deputy President would have sustained an application for recusal. It is, however, not necessary to consider whether the appellant might be taken to have waived any right to object based on the facts as disclosed by the Deputy President. Whether there has been waiver ought to be considered by reference to the material facts relied on in support of ground 1. The question is not whether there has been waiver of a right to object on the basis of the Deputy President's disclosure but rather whether there has been waiver of the right to object as propounded in support of ground 1.
3. Where, as here, the basis for disqualification is prior association, the issue is fact specific. Much will depend on the 'nature, duration, intensity and proximity' of the relationship.[66] In this regard, as the joint reasons demonstrate, the combined effect of three factual matters are highly influential in concluding that the circumstances gave rise to a reasonable apprehension of bias. First, that the complainant and the Deputy President were both board members of the barristers' chambers at the same time (going to the nature and intensity of the relationship). Second, that the simultaneous membership of the board subsisted for over eight years (going to the duration of the relationship). Third, that the relationship only ceased in November 2019 - no more than two years and four months before the Tribunal hearing (going to the proximity of the relationship).
4. It is common ground that these three facts were not disclosed to the appellant by the Deputy President at the directions hearing. They are, in my opinion, essential facts relevant to the appellant's decision whether to waive a right to object to the constitution of the Tribunal if its membership was to include the Deputy President. Indeed, the first two of these identified essential facts are critical to the conclusion that, in all the circumstances, the past association between the complainant and the Deputy President gave rise to a reasonable apprehension of bias. On appeal the appellant gave uncontradicted evidence that he was not aware of these matters. In the absence of cross-examination, and in circumstances where the appellant's evidence is not implausible, that evidence should be accepted.
5. It follows that the appellant was not fully aware of the circumstances giving rise to the right to object to the constitution of the Tribunal based on reasonable apprehension of bias.
6. In short, this is a case of partial disclosure rather than full disclosure. In the absence of full disclosure the appellant was not in a position to elect whether to continue with the hearing or object to the constitution of the Tribunal. The appellant was not in a position to make an informed judgment or to be taken to have given informed consent. Viewed alternatively, from the conceptual underpinning relied on by the respondent, there is nothing unfair and wrong in the appellant raising the reasonable apprehension of bias claim after the adverse outcome in the Tribunal. The appellant cannot be considered to have stood by and gained an advantage where at the material time he was unaware of essential facts critical to the conclusion that the past association between the complainant and the Deputy President gave rise to a reasonable apprehension of bias.
7. The respondent's contention that the appellant could have ascertained the matters complained of on appeal by conducting routine inquiries and searches provides no answer. First, the suggestion that the appellant ought not to have assumed that there was nothing further that ought to have been disclosed ignores the terms in which the Deputy President made the disclosure. The Deputy President made the statement 'in the interests of full disclosure'. His Honour reiterated the apparent completeness of the statement by going on to state that he had raised the matter 'to ensure full disclosure'. The appellant was entitled to assume that full disclosure had been provided based simply on what he had been told twice in terms by the Deputy President.
8. Second, it is established that a litigant is unable to cross-examine or seek disclosure from a judicial officer or tribunal member to support a potential recusal application on the ground of reasonable apprehension of bias.[67] Rather, it is for the judicial officer or tribunal member to decide whether disclosure should be made. In that respect, the prevailing, and settled, professional practice is as stated at [75] above - judicial officers and tribunal members should disclose interests and associations if there is a serious possibility that they are potentially disqualifying. Moreover, where disclosure is made, it must be full disclosure (see [76] above). In such circumstances a litigant is entitled to expect that the presiding judicial officer or tribunal member has no potentially disqualifying interest or associatio[68]unless it is declared.68 There is, in this context, no obligation on a litigant to pry into the affairs of the judicial off[69]er or tribunal member.69 The facts in Taylor v Lawrence - properly described as 'disgraceful' - demonstrate vividly why there should be no countenancing of the suggestion that a litigant ought to have conducted his or her own investigations to determine whether there is a basis to seek disqualification for reasonab[70] apprehension of bias.70
9. Accordingly, I reject the respondent's contention that the appellant was put on inquiry as to the non-disclosed matters which ground the contention of reasonable apprehension of bias as advanced on appeal.
10. The contention is, in effect, one which seeks to overlay notions of constructive notice on the doctrine of waiver. Plainly there are situations in which a litigant will be attributed with constructive knowledge; for example, a litigant may be taken to know what is actually known by his or her legal representatives.[71] There is, however, no proper basis in principle to ascribe knowledge to the appellant because he did not immediately conduct further investigations into the matters as disclosed by the Deputy President. That is all the more so given the terms of the Deputy President's disclosure.
11. The appellant's contention, by ground 1, that the Tribunal as constituted lacked jurisdiction as the prior association between the complainant and the Deputy President gave rise to a reasonable apprehension of bias is, for these reasons, not precluded by the doctrine of waiver. Ground 1 must be upheld.

1. I agree with the orders proposed by Mazza & Mitchell JJA.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Applied by s 6 of the Legal Profession Uniform Law Application Act 2022 (WA). The LP Act was repealed by s 260 of that Act.

[3] See Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 [3] (Gummow ACJ), [117] (Kirby & Crennan JJ); Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289 [10].

[4] Respondent's submissions, pars 52.5 - 52.7 (White AB 52 - 53); appeal ts 41 - 43.

[5] Appellant's amended submissions, pars 41 - 42 (White AB 24); appeal ts 39 - 40.

[6] We note that, in any event, Allanson J, who sat as Supplementary President in the disciplinary proceedings, has retired as a judge since the primary decision was made.

[9] See Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6], [8]; Smits v Roach [2006] HCA 36; (2006) 227 CLR 423 [53] ‑ [60]; QYFM v Minister for Immigration [2023] HCA 15; (2023) 97 ALJR 419 [37] - [38], [67], [162], [194], [225].

[10] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [12].

[11] Ebner [8]; CNY17 v Minister for Immigration [2019] HCA 50; (2019) 268 CLR 76 [28]; QYFM [47], [70], [171].

[12] Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272, 275; Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 74 (Deane J); Ebner [24]; Mueller v Que Capital Pty Ltd [No 2] [2016] WASCA 157 [31].

[13] McIver v The Queen [2020] NSWCCA 343.

[15] See especially McIver [75] - [76].

[16] Public Utilities Commission of the District of Columbia v Pollak [1952] USSC 69; (1952) 343 US 451, 466 - 467.

[17] CNY17 [27]; GetSwift Ltd v Webb [2021] FCAFC 26; (2021) 283 FCR 328 [39].

[18] Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, 300.

[19] Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568, 570 - 571.

[20] The nature of those associations was disclosed to the parties, who indicated they had no objection to any member of the coram sitting on the appeal, prior to the hearing of the appeal. The members of the court were satisfied, collectively and individually, that our prior associations with the complainant did not give rise to any reasonable apprehension of bias by any member of the coram: see appeal ts 2.

[21] S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358, 372 - 373, 381; QYFM [256].

[22] QYFM [27] - [29], [57] - [58], [92], [188].

[25] Vakauta (587 - 588). Similarly, in Re Alley; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1985) 60 ALJR 181, 182, the court refused leave on discretionary grounds where the appellant's legal representatives were 'fully aware' of the circumstances alleged to give rise to disqualification for bias.

[27] Smits v Roach [2006] HCA 36; (2006) 227 CLR 423 [43].

[28] Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [76].

[29] Primary ts 22/02/22 at page 12 (Green AB 12).

[33] Ebner [69] - [70]; Dovade Pty Ltd v Westpac Banking Corporation [1999] NSWCA 113; (1999) 46 NSWLR 168 [105] - [107].

[34] Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56, 71 - 72, quoted by the Tribunal at primary decision [22] (Blue AB 13).

[35] Staffa v Legal Profession Complaints Committee [2022] WASCA 83.

[36] Legal Profession Complaints Committee v Lourey [2022] WASCA 114 [187], [197] - [204].

[37] Council of the NSW Bar Association v EFA [2021] NSWCA 339; (2021) 106 NSWLR 383.

[39] Re Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343, 354; Brewerton v The State of Western Australia [2017] WASCA 191 [34].

[40] Smits v Roach [2006] HCA 36; (2006) 227 CLR 423 [43]; Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [76].

[41] Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568.

[44] Vakauta v Kelly (572). To similar effect see Dawson J at (577). The relevant passage is quoted with approval by Gleeson CJ, Heydon & Crennan JJ (with whom Gummow & Hayne JJ agreed on the issue of waiver) in Smits v Roach [43].

[47] Re Alley; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1985) 64 ALR 6, 7.

[48] See eg Smits v Roach [43]; Michael Wilson & Partners Ltd v Nicholls [76].

[49] Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289 [23].

[50] Kennedy v Cahill (1995) 19 Fam LR 173, 181. The Full Court rejected the waiver argument on the basis that it was not a case where the relevant party was 'fully aware' of the relevant circumstances: at (181).

[51] Jess v Jess [2021] FamCAFC 159; (2021) 63 Fam LR 545 [419].

[52] Carver v Law Society of New South Wales (1998) 43 NSWLR 71.

[53] Carver v Law Society of New South Wales (90).

[54] Carver v Law Society of New South Wales (103).

[55] Police v Mahon [2022] SASCA 76.

[60] Jones v DAS Legal Expenses Insurance Co Ltd [2003] EWCA Civ 1071 [35](iv).

[61] Jones v DAS Legal Expenses Insurance Co Ltd [36].

[62] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [68] - [71].

[63] Ebner v Official Trustee in Bankruptcy [69].

[64] Taylor v Lawrence [2002] EWCA Civ 90; [2003] QB 528 [65], [71].

[66] S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358, 372 - 373.

[67] Locabail (UK) Ltd v Bayfield Properties Ltd [1999] EWCA Civ 3004; [2000] QB 451 [19]; Limbo v Little (1989) 98 FLR 421, 428 - 429.

[68] Najjar v Haines (1991) 25 NSWLR 224, 229 - 230, 237 - 238, 244, 261. (This case involved non-disclosure by a court appointed referee. The principle it establishes is, in my opinion, equally applicable to a judicial officer or tribunal member. Indeed, Clarke JA's analysis expressly refers to the absence of any legal requirement whereby a litigant should investigate the background of a judge: at (237).) See also S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (376).

[71] See eg Smits v Roach [47] - [48].