The second group of matters leads to a submission that the approach taken by the judge to the conduct and management of the case suggested that the judge was unwilling to hear evidence at any length, and was conducting the case in a manner that would enable him to avoid doing so. In short, the submission is that the judge's approach gave rise to an apprehension that the judge was making decision on substantive and procedural issues simply with a view to avoiding having to hear evidence. Linked to this submission is a generalised complaint that the judge is not giving IOOF a fair hearing.

The third group of complaints is that the judge has conducted himself in a manner which indicates that he has prejudged aspects of the case. It is said that his approach to hiving off points of law and then deciding them, and to the calling of evidence, has included the expression of such firm views by the judge on substantive and procedural issues, including the construction issue, as to indicate that the judge has prejudged them before they were decided. In other words, the complaint is that the manner in which the judge has conducted the trial indicates that the judge has a fixed and firm view, and one that is not open to argument, as to the manner in which the case is to be conducted and as to certain substantive issues. Linked to this submission is a submission that, that being so, remarks made by the judge give rise to a reasonable apprehension that the judge considers that counsel for IOOF are engaged in tactical games designed to avoid the proper and efficient disposition of the case. There are also complaints that the judge did not allow Mr Abbott a proper opportunity to develop his submissions.

A further element in the second and third group of submissions is that IOOF is being denied a fair trial.

It is appropriate to say here and now that, to the extent that the submission is that the judge has erred in the conduct of the case, that is a matter which can only be dealt with on appeal from the final decision. Obviously, if the submissions as to bias succeed, certain consequences will follow. But I wish to make it plain that, in my opinion, it is not appropriate for this Court to review the manner in which the judge is conducting the trial while the trial is in progress. To the extent that IOOF attempts to get this Court to rule upon the substantive issue in which the judge is conducting the case, I decline to do so.

The law to be applied by this Court was stated as follows by the High Court in Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-294. Having said that the relevant principle was to be found in an earlier decision of the Court, the Court said:

"That principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it. ... Although statements of the principle commonly speak of 'suspicion of bias', we prefer to avoid the use of that phrase because it sometimes conveys unintended nuances of meaning.

In a case such as the present where there is no allegation of actual bias, the question whether a judge who is confident of his own ability to determine the case before him fairly and impartially on the evidence should refrain from sitting because of a suggestion that the views which he has expressed in his judgment in some previous case may result in an appearance of pre-judgment can be a difficult one involving matters 'of degree and particular circumstances may strike different minds in different ways' (per Aickin J. in Shaw (1980) 55 ALJR, at p 16 ). If a judge at first instance considers that there is any real possibility that his participation in a case might lead to a reasonable apprehension of pre-judgment or bias, he should, of course, refrain from sitting. On the other hand, it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court. 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."

The point of reference is the conclusion that would be reached by fair-minded persons. In relation to that, it is convenient to refer to some remarks by Deane J. Although they occurred in the course of a dissenting judgment, they appear to me to summarise conveniently the approach to be taken to this aspect of the matter. In Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 73-74 Deane J said:

"The fair-minded observer is a hypothetical figure. While the question is not settled by any decision of the Court, it appears to me that the knowledge to be attributed to him or her is a broad knowledge of the material objective facts as ascertained by the appellate court, as distinct from a detailed knowledge of the law or knowledge of the character or ability of the members of the relevant court. The material objective facts include, of course, any published statement, whether prior, contemporaneous or subsequent, of the person concerned. If, in the particular case, the proper conclusion is that a fair-minded lay observer with a broad knowledge of those facts would not entertain a reasonable apprehension of bias, that is the end of the issue of disqualification by reason of an appearance of bias. Strictly speaking, it is unnecessary for the purposes of the present case, where no allegation of actual bias has been made, to decide whether an appellate court should entertain such an allegation. I would, however, indicate that I consider that the reasonable apprehension test is of such broad and general application that it is unnecessary and inappropriate for an allegation of actual bias to be raised before or determined by an appellate court." [Footnotes omitted.]

To the extent that in the present case the complaint is one of prejudgment, it is important to understand that the issue is whether the judge is prepared to hear the parties fairly, and not whether the judge has an inclination, and even a firm inclination, to decide a point in a particular way. It is particularly important to bear this in mind in relation to issues that arise in the course of a long case. It is not surprising that, in such a case, a judge might begin to hold, and to indicate, an increasingly firm view on particular points. In a long case the same issue may arise from time to time, or the one issue may be debated from time to time between the judge and counsel. It is to be expected that over time a judge may begin to hold very firm views on particular points, and there is nothing wrong in that, as long as the judge is always prepared to give the parties a proper hearing. And what is involved in that may also depend upon the circumstances. There is no reason why a judge should permit the same point, if it truly is the same point, to be re-agitated at any length. In that connection I refer to what was said by Mason J in Re JRL; ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352:

"It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be 'firmly established' (Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour." [Footnotes omitted.]

I also refer to the following passage from the judgment of Gaudron and McHugh JJ in Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 100:

"A reasonable bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about an issue involved in the inquiry: Reg. v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd.; Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Re Shaw; Ex parte Shaw. When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her." [Footnotes omitted.]

These principles must be applied in a practical manner to the conduct of a case by a judge. To say that is in no way to diminish the high importance of a judge conducting a case in a manner that is, and appears to be, just, fair and impartial. But judges do, and are expected to, come to cases with existing views and attitudes to certain issues. It is to be expected that during the course of a case, especially a long case, a judge will begin to form views on the issues before the judge. A judge is expected to conduct a case efficiently as well as fairly. A judge is not obliged to permit a party to argue matters at excessive length, or to re-argue matters that have already been decided.

The issue of preconceived views arose in Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568, a case in which in the course of a trial for personal injuries the judge had made statements critical of evidence given by medical witnesses to be called by the defendant who had been called in previous cases. The remarks indicated that the judge had preconceived views about these witnesses, and they were views that were adverse to the opinions likely to be expressed by them. In that context, Brennan, Deane and Gaudron JJ said at 570-571:

"The requirement of the reality and the appearance of impartial justice in the administration of the law by the courts is one which must be observed in the real world of actual litigation. That requirement will not be infringed merely because a judge carries with him or her the knowledge that some medical witnesses, who are regularly called to give evidence on behalf of particular classes of plaintiffs (e.g. members of a particular trade union), are likely to be less sceptical of a plaintiff's claims and less optimistic in their prognosis of the extent of future recovery than are other medical witnesses who are regularly called to give evidence on behalf of particular classes of defendants (e.g. those whose liability is covered by a particular insurer). If it were so infringed, the administration of justice in personal injuries cases would be all but impossible. In that regard, both necessity and common sense require that a distinction be drawn between the case where a judge has some preconceived views about the expertise or reliability of the professional opinions of an expert medical witness and the case where a judge has preconceived views about the credit or trustworthiness of a non-expert witness 'whose evidence is of significance on ... a question of fact' which 'constitutes a live and significant issue' in the case (see Livesey v. New South Wales Bar Association." [Footnote omitted.]

They went on to add an important cautionary note 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 Watson 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."

The point made here is that a judge must be sensitive to the impact that his remarks and views might have upon the fair-minded observer.

Authority is not so easily found in relation to the issue of the attitude of a judge to counsel appearing for a party.

Before I turn to the cases, I propose to recapitulate the nature of the submission made on this aspect of the case.

The disqualifying bias which is said to exist in the present case arises in part from remarks made by the judge about the conduct of counsel in an earlier case in which counsel had appeared before the judge. These remarks are said to disclose that the judge held an adverse view of counsel before the present case began, and that he continued to hold that view during the case. Reliance is also placed upon criticisms made by the judge of counsel's handling of the present case, the criticisms being made during the case from time to time, and in some of the passages that I have set out above. Particular complaint is made of statements to the effect that counsel was filibustering and using tactical devices. These matters in combination are said to disclose antipathy or hostility towards counsel, a distrust of counsel, and a view that counsel is conducting the case in an incompetent manner.

Apart from such matters, reliance is placed upon the fact that the judge on several occasions questioned whether IOOF had given instructions that certain submissions were to be made. This conduct on the part of the judge is likewise said to disclose a mistrust of counsel, by implying that counsel was or would act without instructions. This attitude is said to lead to the conclusion that the reasonable observer would reach the same conclusion about the judge's view of other counsel and of the instructing solicitors.

In my opinion the fundamental principle to be applied is that stated by the High Court in Livesey.

In the present setting, the matters relied upon must give rise to a reasonable apprehension that the attitude of the judge to counsel, and to the solicitors, is such that the judge will not bring an impartial and unprejudiced mind to bear when considering the case advanced by IOOF. To be more specific, the circumstances must give rise to reasonable apprehension that the hostility (I use that as a convenient all embracing term) between the judge and counsel (and other legal representatives) is such that the judge's attitude to the case advanced by IOOF will be adversely or unfavourably affected, in the sense that the judge will not bring an impartial or unprejudiced mind to that case.

I consider that disqualifying bias is not established merely by pointing to circumstances indicating tension, or even some hostility, between the judge and counsel. The relevant principles are directed towards ensuring the appearance and the reality of a fair hearing. That is, one in which the case on each side is fairly considered. Just as that does not require that a judge approach the merits of the case with no preconceived views about issues that might arise in the case, so long as the judge is willing to listen fairly to argument on either side, so the principle does not require that the judge not have, or at least not disclose, any adverse views about a particular counsel appearing in the case. What is important is that the judge be willing to consider the case presented by that counsel fairly. It is when the hostility between the judge and the counsel is such that the fair-minded observer might reasonably apprehend that the judge will not fairly consider the case being presented for the client that disqualifying bias is present.

In Vakauta v Kelly (1989) 167 CLR 569 Brennan, Deane and Gaudron JJ said (at 571):

"... There is an ill-defined line beyond which the expression by a trial judge of preconceived views of reliability of particular medical witnesses could threaten the appearance of impartial justice."

I am conscious of the fact that, when one considers the relationship between judge and counsel in a case, and the manner in which the judge behaves in relation to counsel, there is equally an ill-defined line beyond which the indication of a critical or hostile attitude on the part of a judge can threaten the appearance of impartial justice. But the fact that the line is ill-defined does not remove the need for a court on appeal to distinguish between difficulties and tensions as between judge and counsel and a situation in which the relationship between judge and counsel threatens the appearance of impartial justice because it might cause the fair minded observer reasonably to apprehend that the judge will not fairly consider the case being present by counsel for the client.

There is another important point to be made here. The issue is the fair-minded observer's apprehension of the presence of bias, be it conscious or unconscious on the part of the judge. It is not to the point that the judge is convinced that the judge is not affected by the judge's attitude to counsel. Nor is it to the point that I am satisfied that the judge would not have been affected by the judge's attitude to counsel. The issue is the impact upon the lay observer of what passes between counsel and judge: Vakauta v Kelly (1989) 167 CLR 571-572. To say this is not to substitute mere appearance for the substance of the matter. Far from it. How things appear to a fair minded observer is important. That is why the test is to be applied according to what the fair minded observer would conclude.

I now propose to refer to some of the cases dealing with the relationship between judge and counsel. After that I propose to express some brief views about how this test is to be applied to things that occur in the course of a case, and in particular a long running case.

In Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530 the complainant in a case before a magistrate was represented by a solicitor from the office of the Crown Solicitor. The Crown Solicitor's Office was a part of a government department of which the Crown Solicitor was the acting head. Magistrates were, at the time, as permanent public servants under the same Act and in the same government department. Thus, both counsel and the presiding judicial officer were members of the same department of the public service and subject to the same departmental head. It was held that the magistrate was disqualified from hearing the matter. Bray CJ (at 536) proceeded on the basis that the ordinary fair-minded person would "... reasonably suspect that consciously or unconsciously there would be some kind of bias." Wells and Sangster JJ at 548 said:

"In our judgment, a fair-minded observer of the situation that obtained, both to his knowledge and to that of the learned Special Magistrate, when this case was called on, might suspect--and reasonably suspect--that the learned Special Magistrate would be unconsciously moved not to make rulings or reach conclusions that were adverse to the case presented by his fellow officer (who could reasonably be expected to report to the Permanent Head on the hearing and its outcome); and might, without being aware of it, be disposed to conduct the proceedings not in strict obedience to law, but rather in a manner calculated to obtain or retain the approval of his fellow officer and thus, indirectly, to please the Permanent Head or, at all events, to avoid incurring his displeasure."

The approach of the Court in that case appears to me to be consistent with the principle that I have stated.

Galea v Galea (1990) 19 NSWLR 263 was a case in which the judge was said to be disqualified because of the manner in which the judge addressed questions to a party and to his counsel. It was said these questions would give rise to a reasonable apprehension that the judge was biased against the relevant party. The Court said that the transcript revealed that the judge was evidencing a high degree of impatience with the party's answers to questions, and was indicating a view that the party was not telling the truth as required. This matter was raised, on appeal, as a ground in support of an appeal in which it was argued that his Honour erred in resolving factual disputes. The Court held that, in all the circumstances, the parties or the public would not have entertained a reasonable apprehension that the judge would not bring an impartial or unprejudiced mind to the resolution of the issues involved. Although the case dealt with a complaint based upon the attitude of the judge to a party, it is helpful to mention two of the points made by Kirby ACJ in his reasons. He said (at 279):

"In judging the suggestion of a supervening apprehension of bias, it is reasonable to assume that the hypothetical lay observer would base the opinion on a fair assessment of the judge's conduct in the context of the whole of the trial. A judgment of the loss of impartiality and neutrality would not be made from a short and emotional exchange taken out of context and then weighed in isolation. ..... On the other hand, the right, and perhaps the duty, of the judge to expose the development of his thinking to the appellant, and explain and justify what he said, can be viewed as a whole and seen in the context. This is especially so when it is considered that the hypothetical lay observer would most likely also have been irritated by some of the appellant's prevarications and would have been aware that, soon afterwards, the emotional storm had passed and the trial resumed its steady progress on calmer seas."

This passage emphasises the importance of viewing the matters complained of in their context in the trial, and equally importantly the need to bear in mind the duty of the judge to expose his thinking to the parties.

The Queen v Lars & Ors (1994) 73 A Crim R 91 was a case in which there was an appeal against convictions recorded upon the verdict of a jury. The case was one in which there had been a series of angry exchanges between the trial judge and counsel for one of the accused. The Court of Appeal referred to the situation as a "running quarrel" (at 129) between the judge and counsel. At times, as the Court said, the exchanges between the judge and counsel became "quite personal" (at 130). The Court was critical of the manner in which both the judge and counsel had conducted themselves, but also said that it could not avoid the conclusion that counsel had "... deliberately set out to poison the atmosphere in the courtroom" (at 131). Being an appeal against conviction, the issue was whether there had been a miscarriage of justice. However, I note that the Court based its conclusion that the appeal should be allowed not upon the bare fact of the hostility that had been displayed between judge and counsel, but on (at 142):

"... the risk that the jury were diverted from their proper function, and gained an impression that the judge had formed an adverse view of the defence sought to be raised by each of the accused. In such circumstances, the traditional direction to the jury that they should disregard any expression of opinion by the trial judge would rarely be sufficient to overcome the resultant prejudice. ..... It is ... unrealistic to think that any exhortation to that effect would have been likely in this case to nullify the prejudicial effect of the unacceptable exchanges between the judge and [counsel] which would almost certainly have had the effect of denigrating the defence cases in the minds of the jury."

As I have already said, the issue in this case was whether there had been a miscarriage of justice, but I note that the Court focused upon the apparent or likely effect of the relevant circumstances upon the jury.

In Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd [1996] FCA 1308; (1996) 135 ALR 753 a judge of the Federal Court was hearing civil proceedings. One of the counsel appearing before him was a person with whom the judge had a longstanding personal, professional and financial association. It was submitted that the judge should disqualify himself from hearing the matter, on the grounds that a reasonable apprehension of bias might arise by reason of these associations. The judge declined to do so, and gave detailed reasons for that conclusion. The case is right on point. The judge applied the authorities to which I have referred. In my respectful opinion the judge was right to emphasise that the issue to be considered, through the eyes of the fair-minded observer or bystander, was the capacity of the association between the judge and counsel to influence the judge's approach to the making of decisions in the course of the case. The existence of a financial and friendly association with counsel was not, of itself, a disqualifying factor. As the judge said (at 760):

"There must be something in the nature or the extent of the association which leads that bystander to conclude, whether for friendship, love, money, fear, favour or otherwise, that the adjudicator might be influenced by it. Where the association in question is trivial, remote or indirect the courts might conclude that it is not a disqualifying one."

A little later, after referring to two decisions in particular, including Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530 the judge said (at 763):

"In my view the two cases again demonstrate the requirement for a cogent and rational link between the association and its capacity to influence the decision to be made in the particular case. It is the capacity of the association to influence the decision rather than the association as such that is disqualifying."

The last of the cases is Willis v Magistrates' Court of Victoria (1996) 89 A Crim R 273. In that case the appellant was convicted by the Magistrates Court of a criminal offence. It was submitted, on appeal, that the conduct of the magistrate gave rise to a reasonable apprehension of bias against the appellant. Reference was made to a number of matters that had occurred during the course of the trial, but the judge found that these did not give rise to a reasonable apprehension that the magistrate was not impartial. However, the judge reached a different conclusion in relation to certain matters that occurred during the course of sentencing. In sentencing submissions reference had been made to a witness who was called by the prosecution, but not asked any questions by the prosecutor and simply made available for cross-examination. When reference was made to the witness, the magistrate made a remark that appeared to mean that the fact that the witness was a client of the appellant's solicitor was a good reason for the prosecution not to call the witness. The remarks suggested that the connection between the appellant's solicitor and the witness was a reason not to trust the witness. Although the remark was made at the sentencing stage, it suggested that the magistrate may have approached his assessment of the witness improperly influenced by the attitude that he disclosed. The remark also raised concerns about the question of whether the magistrate's assessment of the appellant's evidence was affected by the fact that he was a client of the relevant solicitor. At another stage of the sentencing proceedings, when the appellant's solicitor was not in the courtroom, the magistrate made a remark to the effect that the solicitor had conducted an earlier appeal to the Supreme Court without instructions from his client. The judge was satisfied that the magistrate was accusing the solicitor of serious professional misconduct. The judge appears to have accepted a submission that the remark disclosed an antipathy towards the solicitor and that there were grounds for concluding that the antipathy had been transferred to the client. The judge's conclusion was that the magistrate's attitude to the solicitor may well have been taken into account when the magistrate came to his conclusion about the evidence of the witness referred to earlier and of the appellant. Under those circumstances the judge was satisfied that a fair-minded observer might entertain a reasonable apprehension that the magistrate might not have brought an impartial and unprejudiced mind to his determination of guilt (at 283-284).

The conclusion that I draw from these cases is that it is necessary for me to consider whether the remarks that the judge made about counsel for IOOF, and the attitude that the judge manifested towards counsel, disclosed an antipathy towards counsel, or an attitude towards counsel, that the fair-minded observer might reasonably suspect would affect the judge's assessment of the case for IOOF, in the sense of causing the judge to approach that case other than with an impartial an unprejudiced mind.

Before dealing with that issue, it is necessary to say something more about the knowledge or information to be imputed to the hypothetical fair-minded observer. I have already touched on this matter, but it is necessary now to return to it in a little more detail because I will have to consider the impact upon the fair-minded observer of the exchanges between the judge and counsel.

This is an issue on which differing views have been expressed in different cases. It is difficult, and probably impossible, to state in the abstract, in a manner suitable for application to cases generally, the degree of knowledge to be attributed to a fair-minded observer. And even if that were possible, it would not be surprising that different conclusions might be reached by different judges about the application of the relevant principle to particular cases. The decision of the High Court in Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 and the decision of the Court of Appeal of New South Wales in S & M Motor Repairs Pty Ltd v Caltex (1988) 12 NSWLR 358 illustrate the difficulty in expressing the relevant test with precision and the way in which judges can come to different conclusions in relation to the knowledge and reaction of a fair-minded observer.

As a starting point, I think it is reasonably clear that the fair-minded observer is to have attributed to him or her knowledge of what has transpired in the case during the hearing before the relevant judge: Laws at 87-88 Mason CJ and Brennan J, and at 95 Deane J. In particular, I consider that the observer is to be treated as being aware of all that passed between judge and counsel, and the context in which that occurred: see Webb v The Queen (1994) 184 CLR 41 at 73-74 Deane J.

I consider that the observer must be taken to have a reasonable understanding of the role of a barrister generally and in a particular case, and a reasonable understanding of the accepted ethical and legal principles that govern the conduct of counsel and a judge in a case. I am aware of the lack of precision in what I have just said. I have expressed it as generally as I do simply because the alternative would be to set out at inordinate length the particular matters that I consider the observer must be taken to understand. This seems to have been the approach of Priestley and Clarke JJA in S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at 380-381. Kirby P dissented in that case. Although I prefer the general approach taken by the majority, I agree entirely with the point that Kirby P made, referring to his judgment in Australian National Industries Ltd v Spedley Securities Ltd (In liq) (1992) 26 NSWLR 411 at 419, where he said that the Court should not attribute:

"... to the hypothetical reasonable observer a level of sophistication which may be enjoyed by judges and other lawyers (or by specially educated or informed citizens or even by the parties involved)."

In this context I refer also to the helpful remarks of Tadgell JA in Gascor v Ellicott [1997] 1 VR 332 at 342-343.

I consider that the fair-minded observer is to be taken to appreciate the following matters.

First of all, that in a long-running case it is likely that the judge will form views on aspects of the case as it develops. Those views may become quite firm as the case unfolds, particularly if, for one reason or another, the matters are the subject of submissions by counsel to the judge during the course of the case. The observer will appreciate that if an issue arises for decision in the course of the case, and the judge decides it a certain way, it is likely that the judge will adhere to that view if the same or substantially the same issue arises for decision at a later stage. The observer would not expect the judge to permit counsel to re-argue a point that the judge has already decided. Nor would the observer expect the judge to permit counsel to argue at any length a point which is, in substance, the same as a point that the judge has decided at an earlier stage of the case, should substantially the same point crop up again for decision.

I consider that the fair-minded observer can also be expected to understand that, particularly in a lengthy case, the judge will be concerned to do all that reasonably can be done to conduct the proceedings both efficiently and fairly. This may result in the judge taking a view that the proceedings should go forward in a manner opposed by one of the counsel, or even by both counsel. While the judge must consider submissions on the matter, and while each party must be entitled to put their case fairly, it is open to the judge to make procedural rulings that the judge considers are conducive to the efficient and fair disposition of the case. That may result in the judge not permitting counsel for one party to present that party's case as counsel would wish.

The observer is to be taken to understand that most judges are appointed from the practising profession, and that frequently judges will have before them counsel whom the judge has previously encountered. The observer is to be taken to realise that quite often a judge will have prior knowledge of counsel appearing before the judge, and a view about the style and technique and competence of that counsel. Sometimes the view will be favourable, sometimes it will be adverse. That view will, of necessity, be based upon previous experience that the judge has had with that counsel. To be more specific, the fair-minded observer is to be taken to understand that sometimes counsel will come before a judge whom the judge considers to be unduly lengthy, to be inclined to fail to identify the central issues in a case and so on. In short, the observer is to be taken to understand that a judge may have, from the outset, the view that a particular counsel will have a certain approach to the issues in the case, that being a view with which the judge does not agree. I do not of course mean an approach about specific issues in the case, so much as a view about the general approach that counsel is likely to take to the conduct of the case.

The fair-minded observer is to be taken to understand that the style and manner of particular counsel may prove irritating to a particular judge. I should add that, although what I am saying is written from the point of view of the judge, I fully appreciate that counsel may find the style and manner of a particular judge irritating. The duty of a judge to conduct a hearing in a judicial manner, and to hear a case fairly and impartially, means that the judge must do all that the judge can to suppress signs of irritation and anger. But the fair-minded observer will not take the view that judges are perfect in this respect. The observer will understand that on occasions a judge will be annoyed by what counsel says or does, and will indicate quite plainly that that is so. Particularly in a long case the fair-minded observer will appreciate that there is a prospect of matters likely to cause anger or irritation continuing to crop up. By this I mean that if the judge has formed a view on a particular matter, but the same issue keeps cropping up and counsel continues to advocate an opposing point of view, the judge may find it irritating to have to continue to deal with a submission which, in substance, the judge has already rejected.

The observer is taken to understand that the duty of a barrister is to represent the barrister's client firmly and fearlessly. It is the right and duty of counsel to advocate the client's cause in the manner that counsel considers to be in interests of the client. On the other hand, the observer is to be taken to understand that in the end it is the trial judge who must decide on matters of contention, and that once the trial judge has decided, the ruling should be accepted by counsel. The observer is to be taken to understand that the judge is entitled to expect this of counsel, and to rebuke counsel who refuse to accept rulings made by the judge. This is so whether the judge's rulings are right or wrong.

The observer is to be taken to understand that there will be occasions when both judge and counsel will, to put it bluntly, express themselves in a manner that is to be regretted. It is important that judges maintain a calm and judicial manner, but as I have already said a fair-minded observer is not to be taken to believe that judges are perfect. The observer will accept that occasional departures from the appropriate standard are nothing more than indications of ordinary human frailty. The observer will appreciate that, particularly in a long-running case, things that might seem a minor irritant to an outside observer can become a source of considerable irritation between judge and counsel.

The fair-minded observer is to be taken to understand that the judge has sworn an oath to do justice. The observer will understand that the judge is trained to and will differentiate between counsel and client, and between counsel and the issues to be decided. The observer will appreciate that the judge understands that counsel is an advocate for the client, and puts the advocate's submissions in relation to the issues before the judge. The judge does not identify counsel with the client or with the issues falling for decision. The observer will understand that the judge routinely deals with cases in which different counsel appear and towards whom the judge has sometimes favourable and sometimes unfavourable views. The judge will decide the case fairly whatever the judge thinks of counsel.

I have made these points in an effort to set out the considerations that, in my opinion, must be brought to bear when considering the reaction of the fair-minded observer to what passed between counsel and the judge in the present case. None of what I have said detracts from the fundamental obligation of the judge to deal with the case with the appearance and reality of an impartial and unprejudiced mind. The matters that I have set out are merely matters that the observer is to be taken to take into account when deciding whether what has passed between the judge and counsel gives rise to an apprehension that the judge might not bring an impartial and unprejudiced mind to bear.

To put it succinctly, but in a very general way, the observer will be aware of the role of judge and counsel, of the way in which judge and counsel interact over time, of the standards to which a judge and counsel should adhere and of the fact that, from time to time and under the stress of the occasion, there will be occasional departures from those standards which have no effect on the ability of the judge to deal with the case in an impartial and unprejudiced manner. The issue for the fair-minded observer will be whether, in the particular case, the conclusion is that the attitude of the judge to counsel, or the relationship between judge and counsel, has become such that there is reason to think that that attitude or relationship is now affecting the judge's approach to the client or to the issues in the case.

Earlier in these reasons I referred to the fact that IOOF has applied for leave to appeal against the disqualification decisions. I explained why the Court directed that that application be argued as if it were the appeal.

The applications for leave to appeal were met by a submission from the defendants that the applications were incompetent, because the disqualification decisions are not appealable. It is submitted by the defendants that the only remedy in relation to the disqualification decisions is an appeal against a decision on a substantive issue in the case, in which appeal a submission that the judge was disqualified can be made.

That submission is supported by authority. In R v Watson Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 a party to proceeding in the Family Court applied for a writ of prohibition against the judge hearing the proceedings further, on the grounds that a comment that the judge had made in the course of the proceedings gave rise to a reasonable suspicion that the judge was not unprejudiced or impartial. The application was successful. In response to a submission that the wife should have appealed, Barwick CJ and Gibbs, Stephen and Mason JJ said (at 266):

"As to that submission no more need be said than that an appeal lies only from a 'decree' (s.94(1)), which means a 'decree, judgment or order' (s.4(1)), and a judge who simply continues to sit after it has been submitted that he is disqualified does not thereby make a 'decree'. No doubt an appeal could have been brought if the learned judge had finally given judgment in the matter, but it would be obviously inconvenient to allow him to complete the proceedings when he is disqualified to hear them."

That decision was applied by the Court of Appeal of the Supreme Court of New South Wales in Barton v Walker [1979] 2 NSWLR 740. It was applied to a decision by a judge of the Supreme Court of New South Wales who, in the course of hearing an interlocutory application in civil proceedings, and upon an oral request made in open court, refused to disqualify himself on the ground of apparent bias. The reasons of the Court were given by Samuels JA. He advanced a number of reasons for concluding that no appeal lay, but in the end founded his decision upon the fact that the judge's announcement that he would continue to sit did not amount to the making of an order: at 571.

That decision has not escaped criticism. In Rajski v Wood (1989) 18 NSWLR 512-518 Kirby P differed from the conclusion reached in Barton. In Australian National Industries Ltd v Spedley Securities Ltd (In liq) (1992) 26 NSWLR 411 an appeal appears to have proceeded on the basis that the parties were content to ignore Barton's case, it being convenient to secure a decision on a disqualification issue that had arisen. Some members of the Court appear to have been content to proceed on that basis.

In Brooks v The Upjohn Company (1998) 156 ALR 622 the Full Court of the Federal Court took the view that Barton could be distinguished. In the case before it the order by the judge, declining to disqualify herself, had been drawn up as a formal order refusing to grant an application made by notice of motion filed in the proceedings. However, the Full Court said that if Barton could not be distinguished, then it would not follow Barton. The Full Court canvassed the criticisms that had been made of the decision in Barton (at 628-629). As well, the Full Court said that the observations by the majority of the High Court in Watson were not essential to the decision in that case (at 630).

IOOF also submits that Barton is distinguishable. If necessary, it submits that this Court should take the approach taken by the Federal Court. There appears to be no authority in this Court on the point. In Nicholson v Griffiths (1988) 143 LSJS 204 at 210 Matheson J, with whose reasons the other members of the Court concurred, alluded to the issue, without expressing a final view on the matter. I am not aware of any other decision in this Court that is on point.

However, I am by no means sure that the observations of the majority of the High Court in Watson can be put to one side as not being essential to the decision in the case.

Be that as it may, I consider that it is unnecessary to decide whether the applications for leave to appeal against the disqualification decisions are incompetent. The defendants accepted that, if an order is made by a judge that is appealable, with or without leave, before the action is finally disposed of, a complaint of bias can be raised in connection with the appeal against the relevant order. There is authority to support that view: see Rajski v Wood (1989) 18 NSWLR 512 at 518 Kirby P, Gas & Fuel Corp Superannuation Fund v Saunders [1994] FCA 1237; (1994) 123 ALR 323 at 337. I respectfully agree with the views expressed in the two decisions just referred to, and in particular with the views expressed in the second of those cases where the Full Court of the Federal Court carefully reviewed a number of the relevant decisions. If there is an appeal properly before the Court, albeit before the final disposition of the case, it must be open to the appellant to argue in support of that appeal any ground that could be argued had the ground of appeal been taken at the conclusion of the case rather than during the case.

In the construction appeal, IOOF has raised as one of its grounds a complaint that the judge was actually biased against IOOF or that there was a reasonable apprehension of bias. The ground is confined to the complaint of antipathy towards counsel and a complaint about the manner in which the judge dealt with the first disqualification application.

The grounds argued in support of the disqualification appeals are more wide-ranging. These matters are not raised as a ground of appeal on the construction appeal. The grounds of appeal in support of the disqualification appeals also raise the exchanges that occur between the judge and counsel that are said to disclose that the judge harbours an antipathy towards counsel for IOOF, and did so from the beginning of the case. Even though some of these matters occurred after the judge made the construction decision, in my opinion they can be argued in support of the appeal against the construction decision because they are directed to establishing bias or an apprehension of bias that existed before the construction decision was made. I consider that all of the matters argued in support of the disqualification appeals are capable of being relied upon in support of the construction appeal.

That being so, I would grant leave to IOOF to amend its notice of appeal in the construction appeal to include the grounds raised in the disqualification appeals. All relevant issues can then be dealt with at the one time. It would be highly artificial, in the present case, to draw a line between events before and after the construction decision, or between some of the matters said to give rise to bias or an apprehension of bias and other matters likewise relied upon. In my firm opinion it would not be in the interests of justice or in the interests of either party to fragment the decision making process in that fashion. The question of the need to amend the grounds of appeal in support of the construction appeal was not, as I recall it, raised during the hearing of the appeal. I did not notice at the time that the grounds of appeal were expressed more narrowly than the grounds of appeal in the disqualification appeal. It was submitted by Mr Besanko QC, counsel for the defendants, that in the construction appeal IOOF could not rely upon matters that occurred after the judge made the construction decision. In my opinion that submission is unsound. All of the submissions advanced by IOOF are put forward in support of a submission that before the judge made the construction decision he had either demonstrated that he had prejudged issues adversely to IOOF or that he was not approaching the decision of the issues in the case with an impartial and unprejudiced mind. There is no other valid objection to an amendment to the notice of appeal in the construction decision, and that is why, although the application has not been made, I would allow the application if made and deal with the complaints of bias as an aspect of the construction appeal.

I therefore propose to proceed on that basis. It follows that the application for leave to appeal against the disqualification decisions can be refused, without any injustice to IOOF.

As I have said on a number of occasions, IOOF submits that this Court should make a finding, not just that there is a reasonable apprehension that the judge will not approach the matter with an impartial and unprejudiced mind, but that the judge is in fact prejudiced against IOOF.

It is only rarely that courts have found actual bias to exist: see Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 1488; (1997) 151 ALR 505. In Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 74 Deane J said:

"I would, however, indicate that I consider that the reasonable apprehension test is of such broad and general application that it is unnecessary and inappropriate for an allegation of actual bias to be raised before or determined by an appellate court."

Despite what his Honour said, it may be that in exceptional circumstances it will be necessary or appropriate for a court to entertain a submission of actual bias on the part of a judicial officer and to make the appropriate finding. However, I wholeheartedly agree with his Honour's observation that the common law test for bias is of sufficient width to make it unnecessary for an allegation of actual bias to be made. If the reasonable apprehension test is satisfied, it will be unnecessary to consider an allegation of actual bias. If that test is not satisfied, I find it difficult to understand how an allegation of actual bias could succeed. As well, an allegation of actual bias raises difficult issues for the Court. It is a serious allegation to make. Bearing in mind that, in proceedings by way of appeal, there is no means by which the subject of that allegation can be heard, how can the Court deal fairly with the allegation? I appreciate, as was pointed out by North J in Sun Zhan Qui, that actual bias may exist even if the decision maker did not intend or did not know of his or her prejudice (see at 563-564). However, to say that does not, in my respectful opinion, detract from the seriousness of such an allegation.

In the present case I see no need to consider the submission that the judge was actually biased. Everything that can be argued in support of that submission can be considered in relation to the submission that there was a reasonable apprehension of bias. I consider that it is regrettable that the submission was made at all. In my opinion the matters relied upon provide no support for the allegation made.

Hereafter I will confine my attention to the issue of a reasonable apprehension of bias.

It is difficult on appeal to put oneself in the position of the trial judge. But, I must say, I consider it regrettable that the events that occurred in Ridgeway were given the attention that they received.

The judge's complaint about Mr Abbott's conduct seems to have been that Ridgeway was an interrupted hearing, that at times the judge listed the case to meet Mr Abbott's convenience, that at a certain stage when the case was due to resume at a time fixed to meet Mr Abbott's convenience Mr Abbott ceased to act as counsel, but he did that shortly before the case was due to resume and that he did not provide an explanation to the judge for doing so. The judge obviously thought that Mr Abbott had been discourteous to him in failing to offer an explanation. The judge seems to have thought that Mr Abbott was obliged to see the case through, at least if the reason for his departure was only that the client lacked the funds to continue to retain him. These matters led to a protracted and unedifying debate between the judge and Mr Abbott.

With all respect to the judge, I do not understand the importance of these matters to the case before the judge, or even their relevance. There was no particular reason to think that Mr Abbott was going to cease to act as counsel for IOOF. Perhaps the judge raised Ridgeway because he thought that Mr Abbott was being discourteous again. The transcript contains statements by Mr Abbott that demonstrate an unwillingness to accept that, right or wrong, the trial judge's rulings had to be accepted. The judge obviously considered that he was not receiving from Mr Abbott the assistance that a judge is entitled to expect from counsel. But these were matters to be dealt with on their merits, and hardly required harking back to Ridgeway. I regret to say that it seems to me that in raising Ridgeway the judge introduced an unfortunate and significant distraction from the management of the case before him.

But a complaint by a judge that counsel has been discourteous, even in an earlier case, cannot of itself give rise to a reasonable apprehension of bias towards the client.

Nor can the fact that the judge would not accept Mr Abbott's explanation for his conduct in Ridgeway. The issue of whether Mr Abbott was under any obligation to continue to act as counsel in Ridgeway involves a number of matters that were not suitable for investigation during the case before the judge. Nor is it appropriate for me to express any view at all on the matter. The judge should not have pursued the issue as he did, at least once Mr Abbott had offered an explanation for his conduct. The judge should have left the matter there.

The judge's refusal to accept Mr Abbott's explanation would cause a fair minded observer to consider that the judge did not accept what Mr Abbott said about his conduct in Ridgeway, and to conclude further that the judge thought that in Ridgeway Mr Abbott had not fulfilled a professional obligation to his client. It is unfortunate that that conclusion should arise, particularly as the IOOF case was not the occasion to resolve these matters.

But, having read much of the transcript, I consider that the fair minded observer would not have been led by those conclusions to conclude that the judge's attitude towards Mr Abbott would or might affect his approach to the case for IOOF. The fair minded observer would appreciate that what happened in Ridgeway, and the judge's attitude towards Mr Abbott, were an aspect of the continuing controversy between the judge and Mr Abbott over the proper conduct of the case. I do not consider that the fair minded observer would have had any reason to think that these adverse views of Mr Abbott would or might affect the judge's assessment of IOOF's case. There is no reason to think that the judge identified IOOF with its advocate. As well, the judge made it absolutely clear that his concern was with the efficient and fair conduct of the case. The attitude towards Mr Abbott to which I have referred emerged in the context of a dispute about the manner in which the case should be conducted, and in the context of criticisms by the judge of Mr Abbott's conduct of the case. It was obvious that Mr Abbott and the judge had diametrically opposed views about the appropriate conduct of the case. It was quite clear why each of them adopted the view that he did. The intrusion of personal elements into the submissions was unfortunate. I am fully conscious of the importance of the appearance and substance of impartiality and fairness, but I cannot agree that the fair minded observer would have thought that the judge's critical view of Mr Abbott would prevent him from considering IOOF's case fairly.

I consider that the fair minded observer would have concluded that the judge had formed a firm view about the appropriate conduct of the case, was critical of Mr Abbott's conduct of the case (I will return to this) and was critical of Mr Abbott and annoyed because Mr Abbott continued to resist the judge's approach, and at some length, at every opportunity. There is nothing in the exchanges that, to my mind, would cause the fair minded observer to conclude that the judge's approach to the case might have been influenced by his attitude to Mr Abbott, or that the judge's future approach to the case would be influenced by that attitude. What the fair minded observer would have concluded is that the judge and counsel continued to argue at length over the same issues and, at times, in rather personal terms.

The Ridgeway issue caused some sharp exchanges between Mr Abbott and the judge. On occasions Mr Abbott failed to treat the judge and his rulings with appropriate respect. The fair minded observer would have understood that some of the exchanges about which complaint is made occurred in the heat of the moment. The transcript demonstrates that at other times there was nothing untoward in the dealings between the judge and counsel. The fair minded observer would have noticed that.

It is a pity that matters got to the stage that they reached. Ridgeway was but one of a number of matters the subject of vigorous exchanges. The fair minded observer would not have apprehended that those exchanges, and the attitudes that the judge expressed, might cause the judge to fail to consider IOOF's case impartially.

Bias - the attitude manifested by the judge towards counsel

I move now to the related but broader issue that the judge's attitude to counsel on other matters manifested bias towards IOOF. I do not overlook the submission by IOOF that the Ridgeway incident had poisoned the judge's approach to Mr Abbott. There are a number of matters relied upon by IOOF under this head.

First of all, there is the suggestion, implicit in some of the judge's questions and comments, that the judge thought that counsel and the solicitors for IOOF might in certain respects have been acting without instructions from IOOF. Linked to this is a further and related implication, that the judge thought that they might not be considering IOOF's interests. This further implication, and to some extent the former, could be drawn from the judge raising the possibility of orders for costs against counsel or the solicitors.

Secondly, there are the various criticisms that the judge made of Mr Abbott and of his approach to the case. A number of these are recorded in the extracts from the transcript I have set out above. They disclose that the judge thought that Mr Abbott's approach to the case was not conducive to an efficient disposition of the case. His remarks could be understood as reflecting a view that Mr Abbott was not conducting the case appropriately. On occasions the judge in terms accused Mr Abbott of wasting time and of filibustering.

Thirdly, there is the fact that on occasions the judge refused to hear Mr Abbott on a point, or set strict limits to the time that he would allow Mr Abbott. The judge disposed of the first bias submission in a peremptory fashion. The judge indicated that some of the submissions put in support of the bias submissions were submissions that no responsible counsel would put, and might warrant disciplinary proceedings or proceedings for contempt.

Fourthly, it is submitted that the judge manifested an underlying hostility towards Mr Abbott. This is really a general submission that draws on the particular matters identified by me.

In this summary I have not dealt with every matter raised by counsel for IOOF. I have attempted to capture the essence of the submission.

I begin with the first group of matters. There are, regrettably, occasions when it is appropriate and necessary for a judge to order that costs be paid by a party's legal representatives. If a judge thinks that a course of conduct being pursued in an action is such that the possibility of such an order arises, it is appropriate for the judge to raise the matter. How the issue should be handled is a matter of judgment. Likewise, if the judge considers that a course of action being pursued in an action might result in a punitive costs order being made against the client, the judge is entitled to raise the matter if the judge thinks fit.

These are matters that require some care. In the present case the judge considered that some of the submissions being put to him were so unreasonable that the possibility of a costs order against the legal representatives arose, or alternatively the possibility of a punitive order against IOOF. The judge thought that, in certain respects at least, the bias applications were completely misconceived.

The fact that the judge raised the concerns he did cannot, of itself, support a claim that the judge is biased against the relevant party, or has an adverse attitude to the party's legal representatives that might infect the judge's approach to the party's case. It might be the duty of the judge to raise these issues.

As it happens, with great respect to the judge, I consider that he took too strong a view of the bias applications. However, in fairness to him it has to be borne in mind that there were four separate applications over a short period of time. Some of the grounds (I will come to these later) were misconceived. As to others, there was an element of re-arguing matters already dealt with. I respectfully consider that the judge did go further than was desirable in questioning whether IOOF understood and had authorised the approach being taken. But it cannot be said, if the judge took the view about the submissions that he apparently did take, that the judge was not entitled to raise the points that he did raise.

The remarks that the judge made would not cause the fair minded observer to suspect impartiality. That person would appreciate that the judge strongly disagreed with the submissions being put to him, and with the approach of counsel, and was annoyed by some of the matters put to him. The fair minded observer would also understand that occasionally judges may get annoyed, like any other person. The judge's attitude to the submissions necessarily implied that the judge thought that someone was acting irresponsibly. But the occasion for a judge to express this view can arise in the course of a trial, and the fact that the judge does so cannot, in my opinion, be pointed to as an indication of bias.

236. The fair minded observer must be taken to be acquainted with the course of the whole case. That observer would have seen that almost from the outset the judge and Mr Abbott had differed on the appropriate approach to the case; that the same issues tended to keep arising and to be debated again; that Mr Abbott not only maintained his point of view, but was inclined to argue at length issues on which the judge had already indicated a firm view; that the judge was greatly concerned by the ever increasing length of the case; that Mr Abbott engaged in some strident criticism of the judge's approach and at times was reluctant to accept the judge's authority.

237. The fair minded observer would appreciate that the judge had, as the case unfolded, formed pretty definite views about its proper management, views to which Mr Abbott was implacably opposed. The fair minded observer would realise that the judge and Mr Abbott were going to continue to disagree on these issues, and that to the judge Mr Abbott's continued opposition would appear to be obstruction to the sensible conduct of the case. The fair minded observer would understand that the judge need not and should not permit these matters to be constantly re-agitated, and also that when the issues on a point were clear, time limits for argument on them could be set. The fair minded observer would realise that on certain issues, particularly of procedure, the judge had obviously made his mind up, but that that was inevitable in a long running case like this. The observer would conclude that the point had been reached at which Mr Abbott should, without having to concede the correctness of the judge's course, recognise the judge's authority, conduct his case accordingly while maintaining his opposition, and consider his client's remedies at the end of the case.

238. The course of conduct of the judge on these matters is not indicative of bias. It simply reflects the fact that in a long trial certain matters, particularly of procedure, will be resolved as the case progresses, and may have an on-going effect on the conduct of the case. In a long case the losing party on such issues simply must await the remedy of an appeal. The judge was entitled to adhere to the view that he had taken, and to insist that procedural issues that he had decided not be re-argued unnecessarily. It may be that at the end of the day the judge will be shown to be wrong. It may be that some of his criticisms of Mr Abbott's approach will be shown to be wrong. But the remedy is an appeal, not a complaint of bias during the trial.

239. What I have just said really disposes of the third group of matters, subject to one point. With all respect to the judge, I consider that he should not have dealt with the first bias application in the peremptory manner in which he did. He thought that the application was precluded by the delay in it being made, and that as well it involved re-arguing matters he had already decided. But the application was really based upon the cumulative effect of what had gone before. In my opinion Mr Abbott was not precluded from raising it. As well, a complaint like this requires careful consideration to avoid the impression that the judge is no longer impartial. However, in due course the judge did hear counsel on the relevant issues. Having regard to the points to be made, I consider that IOOF was given an adequate opportunity to make its submission to the judge. There is no reason to apprehend prejudgment by the judge on this issue, or that his handling of this issue would affect his approach to other issues in the case.

240. That leaves the fourth general submission. There was considerable tension between the judge and Mr Abbott. But, as I explained earlier in my reasons, that can occur between a particular judge and counsel. In a long case its existence will become more apparent than it otherwise would. Allowing for that, I find nothing that would cause the fair minded observer to conclude that the judge's attitude to Mr Abbott would affect his consideration of each issue on its merits, making due allowance for the entitlement of the judge to adhere to decisions already made and to the general approach that he had decided to adopt.

241. The complaint here is that the judge has prejudged a number of what might be called procedural issues, and is not willing to consider them fairly and impartially.

242. The complaint relates to the judge's approach in separating out issues of law, sometimes on his own initiative, and in limiting the evidence to be called by IOOF. The complaint is that the judge has prejudged how the issues in the case should be tried.

243. I consider that the complaint is misconceived. It is the function of a judge, especially in a long case, to consider how the case can be heard efficiently and fairly. The judge is entitled to raise the possibility of an approach that will achieve an efficient and fair disposition of the case. If a proposal to that end is made, and the judge forms the view that it should be adopted, the judge is entitled to require that it be adopted and that the judge's ruling be obeyed. In a long case the same or similar issues may continue to arise. The judge can be expected to take a consistent approach if they do. In substance, that is all that has happened here. The judge has adhered to the view that there are issues of law in the case that can and should be isolated and decided in the interests of the fair and efficient disposition of the case. It is not a question of whether the judge is right or not. That is a matter for appeal. The fact that the judge has done what he did, and the manner in which he has done it, is not suggestive of any lack of impartiality.

244. The same comment applies to the judge's approach to substantive issues, such as the construction decision and the other issues that I identified earlier in these reasons. I accept that, as the case has unfolded, the judge has formed the view that certain substantive issues can be decided in isolation and should be, and has expressed increasingly firm views on them. The fact that it has happened is not indicative of a lack of impartiality. Once again, if the judge has erred the remedy is an appeal, probably at the end of the case.

245. It is not necessary to deal separately with each of the issues isolated by the judge, and with his various directions and decisions. They are covered by what I have just said. IOOF has had a series of adverse rulings and decisions from the judge. But that does not demonstrate bias.

246. Long and complex cases like this present difficulties for all involved. It must be accepted that the judge has the control of the proceedings, and may regulate the conduct of the trial in the manner which the judge thinks best, provided that it is a trial according to law and provided that there is no miscarriage of justice or procedural unfairness.

247. Usually, because the judge does not know as much about the case at the commencement of the trial as is known by the parties and their counsel, it is better to leave the running of the case to counsel unless a real problem emerges. But each case is different, and sometimes it may become apparent that managing the case in a manner not wished by counsel is the best way to conduct the case. As well, judges differ in their approach to long and complex trials. Some are more inclined to intervene than others. Of course, in the end each party must have the opportunity to present all relevant evidence and argument. But, I emphasise, it must be relevant evidence and argument, and the judge is entitled to expect this to be done in an efficient manner.

248. In a long trial the separation and resolution of issues may be a more efficient and economical way of conducting the litigation. If this is done, it must not be done in a fashion which effectively prevents counsel for a party from presenting relevant evidence and argument. There is a risk of a case being broken up into parts in a fashion that prevents a party from presenting its case in a fair and coherent fashion. But the presence of that risk is not a reason for the judge to abdicate the judge's responsibility for the proper management of the case.

249. There is no reason to doubt that the judge considered these matters. Except in the most obvious circumstances, the effect of judicial intervention of the type undertaken here may not be assessed until the end of the trial and judgment on all issues is given. It will be a rare case in which an appeal court would interfere with the conduct of a trial by the trial judge. While these observations may seem trite, I make them because it seems to me that to a considerable extent IOOF is confusing its dissatisfaction with the judge's conduct of the trial with an argument that the judge is biased against it. That is not to say that I dismiss the arguments of IOOF as lacking all substance. But, at the end of the day, I consider that they do not succeed.

250. There is a particular submission to which I must refer. It was submitted to the judge, and on appeal, that the judge has deliberately followed the course that he has followed, of isolating points of law, to avoid the obligation to hear evidence. The submission is that that has been his objective. The submission appears to have annoyed the judge, and seems to have been the reason for some of the remarks complained about on appeal. It is regrettable that the submission was made. The judge was clearly doing what he thought was best to limit the length of the case, consistently with his obligation to hear it fairly. There is simply no reason to think that the judge is setting out to avoid the obligation to hear evidence when appropriate. The submission charges him with a conscious breach of the judicial oath. I unhesitatingly reject the submission.

251. Finally, I must consider the reaction of the fair minded observer to all of these matters in combination.

252. I consider that the fair minded observer would appreciate that this is a case in which the judge has decided a number of procedural and substantive issues adversely to IOOF. The result is that IOOF cannot present its case as it would like to, and has already failed on some important issues. As well, there have been frequent clashes between Mr Abbott and the judge. They have involved criticism of Mr Abbott's conduct of the case, although much of that flows from the manner in which (not the bare fact that) he continues to oppose the course of action taken by the judge and to complain about the judge's approach. Some of the criticism has become personal, and some unnecessarily so. The fair minded observer would appreciate that IOOF can appeal in due course, but that the trial must be conducted in accordance with the judge's rulings, right or wrong. The observer would realise that if the judge is consistent, IOOF will continue to face obstacles in its path.

253. Knowing all this, I do not consider that the fair minded observer would, assessing it as a whole, have reason to apprehend that the judge is anything but impartial in the required sense. Viewing the judge's conduct in context, I consider that the fair minded observer would appreciate that while certain issues have been resolved adversely to IOOF, that is neither the result of a partial and prejudiced approach, nor suggestive of one in the future.

254. The appeal against the construction decision made by the judge should be allowed. The judgment of 1 April 1999 determining separate questions at trial should be set aside. The questions that the judge decided should be reconsidered in the light of such evidence as the judge considers admissible in relation to the proper construction of clauses 7 and 14A of the Tripartite Agreement. It is unnecessary to make an order to that effect. It can be assumed that, the judgment having been set aside, the judge will simply continue with the trial on the basis that the meaning of the relevant clauses of the Tripartite Agreement has not been decided.

255. The application dated 31 March 1999, for leave to appeal against decisions made by the judge refusing to desist from further hearing the case, should be refused. All issues that could be considered, had leave to appeal been granted, have been considered by me in the course of dealing with the appeal against the construction decision. I have concluded that the appellant's submissions that the judge is disqualified from further hearing the case should be rejected. Accordingly, leave to appeal against the decision can be refused without determining the objection to the competence of the application for leave to appeal.

256. It will be necessary to hear the parties on the issue of costs.

257. PRIOR J. I agree with the orders proposed by the Chief Justice for the reasons he has given. There is nothing I can usefully add.

258. MULLIGHAN J. I agree with the orders proposed by the Chief Justice and with the reasons which he has given.