MACKEN: That is not so here. In this, Marks J, at first instance, doesn't decide the matter for the Tribunal."
45 Ms Kha was taken to the complaint in her affidavit to the effect that Mr Shore recollected saying something to the effect that counsel understood Justice Marks' knowledge regarding counsel's practice, and that having been omitted from the transcript. Ms Kha said that the omission of such a comment would not give rise to any apprehension of bias. She said, however, that it caused her concern "as to where those statements came from and what history they were driven from".
46 For completeness, we should add that Ms Kha listed, in an annexure to her affidavit, a number of other matters concerning corrections to transcript which are clearly of a typographical nature and, as we apprehended, were not advanced as indicating that the Tribunal had interfered with the production of inaccurate transcript. Rather, they were put forward as being matters which had not been the subject of correction by the Tribunal in the context of other more supposedly significant matters where tampering had occurred.
47 In the course of written submissions in support of the disqualification application, Mr Shore referred to a number of other matters. Those matters which were referred to in oral evidence were repeated in the written submissions, with the following additional claims:
"…
2. That the Tribunal refused to allow the respondent to make a "no case" submission;
3. That the Tribunal refused to allow the respondents to call certain oral evidence which had not been the subject of affidavit evidence;
…
5. That the Tribunal adopted different standards in determining whether to admit or reject documentary evidence, the differential standards applying to the applicant and the respondent;
…
9. The refusal of Justice Marks to allow Mr Shore to seek information from him about the identity of his staff and about certain matters attended to by his staff in connection with the proceedings.
10. An alleged threat by Justice Marks to report Mr Shore to external authorities"
In this regard we note that the matter about which Mr Shore complains is contained on page 6 of the transcript of 26 October 2005.
48 As we understand the further complaints levelled against the Tribunal by the respondent in written submissions, they fall into three areas. The first concerns the acceptance and rejection of certain evidence. It is, in our opinion, a long bow to draw to sustain an argument that evidence has been either accepted or rejected because a tribunal might be biased in some way towards or against a party.
49 The second concerns the criticism levelled against the respondent, and in particular the respondent's counsel, Mr Shore, concerning the manner in which he conducted the respondent's case. Whilst it is true that Mr Shore was criticised for taking an overly technical approach to the matter, for failing to appreciate and conduct himself by reference to the circumstances of the tribunal in which he was appearing and for unduly prolonging the proceedings, these are not matters which would, in our opinion, be indicative that we might not bring an impartial and unprejudiced mind to the resolution of the ultimate issue. Unfortunately, from time to time, courts and Tribunals have occasion to be critical of the presentation of cases by representatives of parties, including counsel. It is this area which created concern for Ms Kha, the respondent's solicitor. She said she became anxious about the matter and that she found the situation "off-putting". These concerns and her anxiety, and the fact that she found these matters off-putting, were coupled with her feelings generated by the fact that some of the evidence which the respondent sought to have admitted was rejected. In our opinion, the approach taken by Ms Kha in terms of every day practice of litigation is naïve and is perhaps explicable by the fact that she has only practiced as a solicitor for five years.
50 The third area is the one that has caused the greatest concern for the members of the Tribunal. This concerns matters which occurred after the conclusion of the substantive hearing and involve problems with respect to MFI documents, the fact that an exhibit was being held by the respondent's solicitor, and allegations made by Mr Shore and Ms Kha to the effect that Justice Marks had colluded with the court reporters to amend the transcript in a manner prejudicial to the interests of the respondent. Coupled with this is, of course, an allegation that the court reporters had been compliant in this activity. We regard the making of such a submission as of itself something which is inappropriate, particularly as, on the evidence of Ms Kha there is simply nothing to suggest that the transcript has been amended in the manner contended for. It has not been sustained. We give it no credence in determining the disqualification application.
51 The test which governs the determination of applications of this kind is well-known. It was recently referred to by the High Court of Australia in Johnson v Johnson (2000) HCA 48. At paragraph [11] the Full Court described the test as "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".
52 It is apposite to refer further to the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson. In discussing the test their Honours said:
"[12] It is based upon the need for public confidence in the administration of justice. "If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision." ( R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263 per Barwick CJ, Gibbs, Stephen and Mason JJ.) The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. 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" ( Vakauta v Kelly (1988) 13 NSWLR 502 at 527 per McHugh JA, adopted in (1989) 167 CLR 568 at 584-585 per Toohey J).
[13] Whilst 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 (Webb v The Queen (1994) 181 CLR 41 at 73 per Deane J.), 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. In Vakauta v Kelly (1989) 167 CLR 568 at 571, Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case." (See also Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 at 15 per Murphy J; 32 ALR 47 at 53). Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. 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. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them".
53 It will be seen in Johnson that the emphasis is focussed on a pre-judgment of the case and a pre-judgment of an issue in the proceedings which has to be determined by the Judge or Tribunal.
54 The respondent, in its application for disqualification, does not suggest that there is any apprehension that the Tribunal may not accept the evidence of any particular witness. There is no suggestion that the Tribunal has expressed any particular view about the credibility of any particular witness. There is a complaint made about the refusal of the Tribunal to accept certain documentary evidence. This, in our opinion, is not indicative of bias in the sense referred to in the well-known authorities in this area; it is indicative of the discretion which reposes in the Tribunal as to what evidence ought properly to be admitted and what evidence ought properly to be rejected. These are matters which are capable of being challenged on appeal but which, in our opinion, cannot be said, with respect to the authorities, to constitute bias. If Mr Shore were correct in his submission, almost every case brought before every court would create circumstances in which a claim of apprehended bias might be made.
55 As we have shown, there is no substance in the claim made by the respondent in aid of this application that the transcript has been amended in any significant manner based on the evidence of Ms Kha. In the absence of any conclusion that the transcript is not substantially correct, any allegation that the Tribunal or any member of the Tribunal has tampered with the transcript must logically be incorrect and demonstrate the inappropriate nature of such an allegation.
56 In our opinion the hypothetical, reasonable observer of what occurred during the course of the proceedings on the first two days of hearing, assisted by reference to a close reading of the transcript, will detect a sense of frustration on the part of the Tribunal with respect to the manner in which Mr Shore represented the interests of the respondent. Whether and to what extent he was so instructed by the respondent we are unable to comment. However, it is clear from the brief references which we have made that Mr Shore frustrated the efforts of the Tribunal to deal with the claim in an efficient, cost-effective and speedy manner. So much can be seen from the refusal at first instance by Mr Shore to make any concession as to the existence of a partnership at all relevant times. His attitude was that the applicant should be put to strict proof. Such an approach is certainly utilised in the course of criminal proceedings and was formerly utilised in certain civil proceedings, but to a much lesser extent given the more extensive involvement of courts in the case management process aimed to ensure that only the real issues between the parties are litigated. On each occasion that counsel for the applicant pointed to matters which justified the granting of a concession about the existence of a partnership Mr Shore gradually made the concession which was dictated by the circumstances and eventually the partnership issue faded from the scene. In the course of submissions, Mr Shore said that he had been forced to make the concession because of the irritation which had been expressed by members of the Tribunal concerning his attitude. Nothing, however, can be further from the truth. His initial concessions were made because the reply document filed by the respondent did not put the existence of the partnership into issue. The final concession was made when Mr Shore was confronted with a Statement of Liquidated Claim issued by his client, through the same solicitors who instructed him, within three weeks of the commencement of the hearing in these proceedings, in which his client brought a claim against the applicant based on the existence of the partnership.