was there an appearance of bias?
31 The issue assumes increased significance because in his Honour's reasons for judgment, having referred to the admission of the material from Ms Frank's affidavit ([2005] FMCA 463 [8]) his Honour considered the allegations made by the appellant on the Briginshaw [v Briginshaw (1938) 60 CLR 336 at 361-362 per Dixon J] standard ([2005] FMCA 463 at [32]). His Honour noted that required him to have a high degree of satisfaction that the events alleged by the appellant happened. His Honour found as supporting his conclusion that he did not have that high degree of satisfaction. Among other things, he relied on the fact that the appellant had made no complaint about Mr Xiao's alleged conduct until more than twelve months afterwards although she had been expressly given the opportunity to make a complaint in 2002 ([2005] FMCA 463 at [32]).
32 A fair-minded observer sitting in the court room might wonder why, when the University was represented, it had not led any evidence from Ms Frank, yet his Honour had gone through the papers and had found an affidavit by her and had then identified parts of it as being 'relevant' and as 'effectively confirm[ing]' that the appellant had not, in any written material lodged with the University, raised any allegations against Mr Xiao in 2002. By saying 'I think for completeness I should receive paragraphs 1, 2, 3 of Sybille Frank's affidavit of 10 January 2005 for the purposes of today's proceedings' his Honour was deciding of his own motion to admit material which no party had put before him as her, his or its evidence at the hearing. Ms Frank was not required to be present or to be available for cross-examination.
33 In Ebner v Official Trustee (2000) 205 CLR 337 at 344-345 [6]-[8] Gleeson CJ, McHugh, Gummow and Hayne JJ said:
'Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified 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 (R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v NSW Bar Association (1983) 151 CLR 288; Re JRL; Ex parte CJL (1986) 161 CLR 342; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41; Johnson v Johnson (2000) 201 CLR 488). That principle gives effect to the requirement that justice should both be done and be seen to be done (R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259, per Lord Hewart CJ), a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.'
34 A judge, particularly in the discharge of the jurisdiction of the Federal Magistrates Court, may need to consider what documents have been filed by parties in the proceedings upon which they may wish to rely and draw the attention of parties who are unrepresented to material which they may want to consider filing or tendering. However, it is a most unusual, indeed extraordinary, step in contested litigation for a judge to tender of his or her own motion material from an affidavit which a party, who is legally represented in the proceedings, has chosen not to read and to allow that material to go into evidence untested, on the basis that it in effect makes stronger a case against the party adversely affected by the reception of that evidence.
35 A fair-minded person reasonably might consider that the judge was seeking to add emphasis to the appellant's failure to make complaints against Mr Xiao and also that the judge had read through all of the affidavit material which by then had been filed by the University in the larger proceedings. As I was informed by Ms Oakley from the bar table, that material included affidavit evidence which had been filed on behalf of the University contradicting the appellant's claims of sexual harassment by some of the other respondents, and also of plagiarism of her work by the second respondent who was her thesis supervisor.
36 On the other hand, the only material to which his Honour referred and which his Honour noted in open court as having relevance, is what might be regarded as the relatively anodyne confirmatory material from Ms Frank. His Honour does not refer to any other material to which he had regard.
37 I have no hesitation in assuming that his Honour set out in his reasons for judgment fully, honestly and accurately all of what he took into account in coming to his decision to dismiss the appellant's complaint relating to Mr Xiao. Nor is it necessary or appropriate to inquire further into this question for the issue here is relevantly whether what occurred gave rise to the appearance of a possibility of an absence of an impartial mind on the part of his Honour as Callinan J explained in Antoun v The Queen (2006) 224 ALR 51 at 76-77 [81]-[83], Haydon J agreeing at 78 [91]; see too per Gleeson CJ at 57 [22]. But what I, as a judge, or any lawyer for that matter, knows or assumes that a judicial officer referred to or took into account in deciding a matter when regard is had to the judicial officer's fulfillment of the duty to give reasons for judgment, is one thing. It is quite another thing for a fair-minded lay observer to be precluded from forming a reasonable apprehension that, in the present factual context, the judge might not have brought an impartial mind to the resolution of the dispute. As Brennan, Deane and Gaudron JJ said in Vakauta v Kelly (1989) 167 CLR 568 at 573:
'An experienced lawyer would appreciate the ability of a trial judge to ensure that preconceived views do not cause the actual decision to be tainted by prejudgment or bias. The likelihood that the lay observer would not lies at the heart of the requirement of the appearance as well as the reality of impartial justice.'
38 I do not consider that any question of waiver of his Honour's conduct can be imputed to Ms Huang. She was not to know that what his Honour did was extraordinary. Nor did counsel for the University intervene to suggest that what his Honour proposed to do was inappropriate. In Vakauta v Kelly (1989) 167 CLR 568 at 572 Brennan, Deane and Gaudron JJ held that waiver was the consequence of a legally represented party failing to object to judicial conduct reasonably capable of being regarded as conveying an apprehension of bias. Their Honours did not explore the position for an unrepresented party but in Preston v Carmody (1993) 44 FCR 1 at 14 Wilcox J referred to the principle they had identified and said:
'But the principle to which their Honours referred is not limited to cases where the relevant party is legally represented. It was applied by the New South Wales Court of Appeal in relation to a litigant in person in Wentworth v Rogers (No 12) (1987) 9 NSWLR 400 at 421-422. Where a person is not legally represented or advised, it will always be necessary to consider whether he/she had the knowledge necessary to found waiver.
39 There may be cases where the judicial conduct complained of may be so obviously questionable that an appellate court could say that the unrepresented party was bound to object then and there rather than chancing to how the ultimate decision may go. But, in most cases, unrepresented parties, however intelligent or worldly, will not have a sufficient familiarity with the practice and procedure involved in litigation to know when a judicial officer has gone potentially too far. Not only do unrepresented parties usually feel the ordinary, but very real, stress and nervousness which being in court generates but they are entitled and are likely to assume that the judicial officer is doing his or her job fairly and according to law. So something which is unusual to a lawyer may not strike an unrepresented party as such. An unrepresented party may think what has occurred is how courts do things, and so not realize immediately that anything legally wrong has occurred, however upsetting the judicial officer's conduct may be.
40 So much will depend on the facts of the particular case that further generalized discussion by me is not fruitful. In Vakauta v Kelly (1989) 167 CLR 568 at 571-572, Brennan, Deane and Gaudron JJ considered how far a trial judge could express preconceived views about expert medical witnesses who frequently in the past had given evidence before him. They said (167 CLR at 571-572):
'On the other hand, there is an ill-defined line beyond which the expression by a trial judge of preconceived views about the reliability of particular medical witnesses could threaten the appearance of impartial justice. In the passage in his judgment in[Re Watson: Ex parte Armstrong (1976) 136 CLR 248 at 294] to which we have referred, Jacobs J pointed to the undoubted fact that "it is confidence in his own integrity which supports [a judge] not only in his judgment but in all his words and conduct". Knowledge of his or her own integrity can sometimes lead a judge to fail to appreciate that particular comments made in the course of a trial may wrongly convey to one or other of the parties to the litigation or to a lay observer an impression of bias. For example, the appearance of impartial justice could be compromised if the words or actions of a trial judge conveyed the impression that preconceived adverse views about a particular medical witness were influencing the judge's approach to the case to an extent that the judge was entering the arena to denigrate the witness or to oppose the witness' views or that the judge was biased against the party who had called that particular witness or that the judge was likely to be concerned, in the judgment actually deciding the case, to vindicate the preconceived adverse views about the witness by findings contrary to whatever views that witness might express.'
41 Again, this case is different because the material from Ms Frank which the trial judge used confirmed what already appeared to have been established.
42 This case is not like the circumstances in Gillette Australia Pty Ltd v Energiser Australia Pty Ltd (2002) 193 ALR 629; [2002] FCAFC 223 where the trial judge had erroneously included in his judgment, as having been read and being credible, material from affidavits which, in fact, had never been read in the proceedings. However, as Merkel J, (with whom Heerey J at 193 ALR 635 [29] and Lindgren J at 193 ALR at 636 [32] agreed) said that (193 ALR at 652 [78]:
'While not every breach of the rules of natural justice invalidates the decision made, once the breach is proved the court should refuse relief only when it is confident that the breach could not have affected the outcome.'
43 Merkel J then referred to what the High Court had said in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-146:
'It is no easy task for a court of appeal to satisfy itself that what appears on its face would have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact.'
44 The University submitted that the objective evidence showed that Ms Frank's evidence was uncontroversial and therefore did not and could not affect the result of the proceedings. The appellant had conceded in cross-examination that she had not made in her very lengthy complaint to the University, to which Ms Frank's evidence related, any mention whatever of Mr Xiao (Transcript 6 April 2005 pp 44 line 25 - 45 line 5) and that the first time she had written to the Human Rights and Equal Opportunity Commission in July 2002, the appellant had made no mention of a complaint involving Mr Xiao (Transcript 6 April 2005 pp 48 line 32 - 49 line 22).
45 Moreover, the appellant agreed that prior to her complaint to the Human Rights and Equal Opportunity Commission of 31 October 2002 she had made no complaint against Mr Xiao relating to being shown a photograph of a naked man and a naked woman in August or September 2001 (Transcript 6 April 2005 pp 52 line 25 - 53 line 14). Accordingly, it was submitted that the admission of the material of Ms Frank's affidavit did not, as a matter of substance, affect the outcome of the proceedings or create any substantive adverse consequence for the appellant in the proceedings.
46 As the High Court said in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145:
'The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker LJJ) in Jones v National Coal Board ([1957] 2 QB 55 at p 67) , in these terms:
"There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it."
That general principle is, however, subject to an important qualification [...]: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.'
47 Here the question is not so much whether further information could possibly have made any difference. The question is whether or not the proceedings below crossed the line described in the seminal case of Jones v National Coal Board [1957] 2 QB 55 at 63 by the English Court of Appeal who said:
'In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries.'
48 Their Lordships continued that Lord Greene MR had explained in Yuill v Yuill [1945] P 15 at 20: '… that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations[.] If a judge, said Lord Greene, should himself conduct the examination of witnesses, "he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict".' That was, of course, said in the context in which a judge was not allowed to call witnesses (see Jones v National Coal Board [1957] 2 QB at 64). These considerations may not be entirely apposite for the Federal Magistrates Court if r 15.04 is a valid exercise of the rule-making power. Certainly, as noted above, there will be situations for example (and I do not intend to be exhaustive) in which that court is called upon to exercise its jurisdiction in which it may be necessary or desirable for the court to have information from witnesses, particularly in cases involving the Family Law Act 1975 (Cth) where welfare of a child may be in issue and where the relevant parties before the court may each have interests which the court regards as not properly able fully to inform it of what might be in the overall best interests of the child.
49 However, in a case like the present, I am of opinion that it was not appropriate for his Honour to have used Ms Frank's affidavit in any way, although the parts of the affidavit which his Honour used were simply confirmatory of what the appellant herself had accepted in her cross-examination and also of what the objective evidence revealed. As Kirby J remarked in Antoun v The Queen (2006) 224 ALR 51 at 63 [47]:
'… it is every person's right to have a trial conducted in accordance with the law. The trial judge here was disqualified because he crossed the line. The trial did not conform to law.'
50 The fact is that his Honour's intervention and use of Ms Frank's affidavit raises more questions for a fair minded observer than it answers. One does not know what, if anything, his Honour discarded in order to assess what he said was relevant to use from the other material in the file. Why did his Honour need to review any of the other material that was not formally before the court placed there in the ordinary way by the parties seeking to have their dispute properly ventilated?
51 In one sense it may be possible to say that the material used from Ms Frank's affidavit would have made no difference. In my opinion that material was capable of falling into such a category. However, the evidence of Ms Frank in this case did not assist the appellant's case at all. At worst it bolstered the case of the University and Mr Xiao as to her lack of complaint and made her case look thinner. There was no need for the evidence of Ms Frank to be called in aid for that purpose, for the very reasons which the University has sought on this appeal to say that the evidence would have made no difference. The trouble is that his Honour saw fit himself to introduce that evidence, after the appellant had given evidence and without any attention to the rules of the court providing for making directions about examination and cross-examination of the witness whose evidence it was.
52 I am of opinion that a fair-minded person could reasonably have apprehended that his Honour was seeking to assist the respondents' cases by introducing the evidence. Excessive judicial intervention in proceedings sometimes raises issues of fact and degree as to how far a judge is or is not entitled to go. Thus Wood CJ at CL noted that the line that a trial judge walks when asking questions of a witness is a narrow one (R v Esposito (1998) 45 NSWLR 442 at 472B-C; see too Galea v Galea (1990) 19 NSWLR 263 esp at 280-282 per Kirby ACJ). But the issue here really is whether a fair-minded person could reasonably have apprehended that his Honour's introduction and use of Ms Frank's evidence indicated that he was not being impartial.
53 However, could this have made any difference to the outcome of the trial? Obviously there was material available for his Honour to assess one way or the other as to which witnesses' accounts he accepted. The objective evidence clearly supported that introduced, irregularly, from Ms Frank. If the appellant's account of the incident in 1999 had been accepted, I am of opinion that it was capable of being characterized, depending on the facts, as an engagement by Mr Xiao in unwelcome conduct of a sexual nature in relation to the appellant in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the appellant would be offended, humiliated or intimidated within the meaning of s 28A(1) of the Sex Discrimination Act. The character to be attributed to the incident in 2001 likewise may have depended upon the circumstances, although it is less likely to have resulted, had it been left to be taken alone, in a finding of a contravention of s 28A.
54 As Gaudron and Gummow JJ noted in Re Refugee Tribunal ex parte Aala (2000) 204 CLR 82 at 116-117 [80]-[81] it is sufficient that a denial of natural justice deprives the appellant of the possibility of a successful outcome (applying Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147). Their Honours went on to quote with approval from Megarry J in John v Rees [1970] Ch 345 at 402:
'As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.'
55 What happened in the present case was not simply a rejection of the submission or a rejection of evidence or a statement to an applicant that material would be taken into account, which was not. By itself, Ms Frank's evidence admitted by his Honour would not have altered the outcome. It is the fact that his Honour actively intervened in the proceedings by tendering that evidence in circumstances which did not appear to warrant it which gives an indication that a fair-minded observer of the proceedings could reasonably have apprehended that his Honour was seeking to make the case against the appellant by assisting those to whom she was opposed.
56 I have anxiously given consideration as to whether it could be said that his Honour's conduct could have made no difference (see e.g. Goldsmith v Sandilands (2002) 190 ALR 370; [2002] HCA 31; Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at 444 [28]-[29]; [2003] HCA 60) but I have come to the conclusion the course his Honour took is so irregular that the breach of the rules of procedural fairness cannot be regarded as not possibly having affected the outcome. A different judicial officer may have taken a different view as to the appellant's credibility and that of Mr Xiao and if that had happened, the outcome may have been different.