26 February 2008
Jae Kyung LEE v Bob Chae-Sang CHA & ORS
Judgment
1 HODGSON JA: I agree with the orders proposed by Basten JA, and subject to what I say below, I agree substantially with his reasons.
2 I agree that the weight of authority supports the view that, if all that happens is that, in the course of a trial, a judge is asked to disqualify himself or herself and declines to do so, there is no order from which an appeal can be brought. In the case of tribunals apart from superior courts, however, an application can be made for an order in the nature of prohibition.
3 The grey area then is, what more is required for there to be an interlocutory order from which an appeal can be brought, subject to the grant of leave to appeal. Would it be enough, for example, that there be a document filed in court seeking orders that the judge disqualify himself or herself, that the hearing be terminated, and that there be an order that the trial commence de novo before another judge; and that the application be dismissed, with an order that the applicant pay the costs of the application. My tentative view is that there would then be an order from which leave to appeal could be sought. Would this still be the case if the application were dismissed with no order as to costs? Perhaps so; although then the situation becomes very difficult to distinguish from a case such as the present, where to seek disqualification must by implication also involve seeking orders that the hearing be terminated and that the trial commence de novo before another judge.
4 It is not necessary to resolve these questions in this case, because an order in the nature of prohibition is available; and because such an order is subject to discretionary considerations, as is an application for leave to appeal from an interlocutory order that could vitiate the final result of the hearing.
5 In my opinion, it can be appropriate to grant relief, whether by way of an order in the nature of prohibition or by way of leave to appeal, in a part-heard case where disqualification for bias or apprehended bias is clearly shown. However, in a case where that is not clear, there are powerful reasons for withholding relief as a matter of discretion: in particular, the circumstance that a decision concerning bias or apprehended bias can best be made having regard to the whole of a trial, and the circumstance that, if relief is granted, the time and cost of the hearing to date would inevitably be wasted. For reasons given by Basten JA, this is not a clear case; and I too would withhold relief as a matter of discretion.
6 BASTEN JA: This matter involves proceedings currently pending in the District Court before Gibson DCJ. On 17 October 2007 the proceedings had reached the twenty-ninth day of the trial. It appeared that the cross-examination of Mr Cha (who was the plaintiff at trial and will be referred to as "the plaintiff") had been completed, but there was a possibility of re-examination and an expectation that a number of further witnesses would be called by the parties. On present progress, counsel estimated that the further hearing of the proceedings "will take at least six weeks, and possibly longer".
7 According to the statement of claim, the plaintiff was the president of the Year 2000 Sydney Olympic Australian-Korean Supporting Committee ("the Committee"). (The precise name of the Committee, presumably a translation, varied in the evidence, as did the title of the plaintiff, who was sometimes referred to as the chairman.) The function of the Committee was to provide assistance and support to Korean athletes attending the 2000 Olympic Games. The proceedings concerned a number of statements in Korean language newspapers suggesting that the plaintiff had mismanaged the affairs of the Committee and failed to account properly for expenditure. The second defendant in the proceedings (who brought the present application) was the publisher of the material complained of, much of which emanated from the fourth defendant (Mr Park) who was an "auditor" of the Committee's financial records.
8 Prior to the present proceedings before her Honour sitting alone, there had been a trial pursuant to s 7A of the Defamation Act 1974 (NSW) at which a jury had determined that a number of defamatory imputations arose from the publications. Her Honour was required to consider defences raised in relation to the various imputations, as well as the assessment of damages, in relation to each cause of action which was established. The material complained of was published between December 2000 and June 2001, suggesting that judgment will not be available on any view until some seven years after the last publication. Although no counsel proffered an estimate of the maximum likely damages if the plaintiff were entirely successful, it appears to have been accepted that the figure would not approach the legal costs which the parties have already incurred. The time taken for the current trial so far is at least in part a result of the fourth defendant, Mr Hak Joo Park, and the plaintiff, Mr Bob Chae-Sang Cha, not having sufficient English to allow any part of the proceedings to be conducted without interpreters. Similarly, all of the key documents were in Korean. This caused cross-examination in particular to be a slow process. Further, Mr Park was representing himself, but was apparently without the assistance of an interpreter for parts at least of the trial.
9 Even a cursory perusal of the transcript conveys a clear impression that the patience of all the participants was sorely tested during the proceedings. On a number of occasions the trial judge was moved to reprimand counsel for comments to each other. On numerous other occasions her Honour noted that she was not assisted by comments made by counsel. The transcript further suggests that her Honour exercised considerable forbearance in not responding to many interventions by counsel. Nevertheless, on occasion her Honour expressed a degree of frustration, using language which led to a request for recusal, based on bias or a reasonable apprehension of bias against Mr Park. Her Honour declined to accede to that request and the present proceedings in this Court are a challenge to that decision of the trial judge.
10 Before considering in more detail the circumstances in which the request arose and the particular grounds on which it was based, it is necessary to say something about the jurisdiction of this Court to consider the matter.
Jurisdiction: availability of appeal
11 The request that her Honour disqualify herself from further hearing of the matter was made on 12 October 2007 by counsel for the second defendant, Mr Jae Kyung Lee. She declined to accede to that request and delivered ex tempore reasons on the same day at the completion of argument.
12 On 9 November 2007 Mr Lee (who will be referred to as "the applicant" adopting the new terminology of UCPR Part 51), filed a holding summons seeking leave to appeal against her Honour's refusal to disqualify herself from the further hearing of the matter. A week later an ordinary summons with appointment was filed and expedition was sought. The matter came before a single judge of the Court on 17 October 2007. Following that directions hearing, the applicant amended his summons to add as a second opponent "Judges of the District Court of NSW" and to seek an order in the following terms:
"An order in the nature of a writ of prohibition that the Second Defendant be restrained from further listing for trial, District Court proceedings No. 5376 of 2002 before her Honour Judge Gibson DCJ."
13 Any right of appeal (or right to apply for leave to appeal) depends on the proper construction of s 127 of the District Court Act 1973 (NSW) which confers a right of appeal on a party dissatisfied, relevantly for present purposes, "with a judge's … judgment or order in an action": s 127(1). It is not in dispute that the applicant would require leave in the present matter because any relevant judgment or order was interlocutory: see s 127(2). The question is whether her Honour's refusal to disqualify herself constituted a "judgment or order" at all. The overwhelming weight of authority suggests that it did not.
14 In The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 the High Court considered an application for a writ of prohibition sought by the wife in certain proceedings under the Family Law Act 1975 (Cth) against a judge of the Family Court on the basis that he was biased against her and had prejudged her credit to her disadvantage. The proceedings were not by way of appeal, but the availability of an appeal was relevant to the grant of a writ of prohibition, in circumstances where a ground for issue of the writ had been made out. The joint judgment of Barwick CJ, Gibbs, Stephen and Mason JJ considered that issue at p 266 in the following terms:
"It was submitted on behalf of the husband that the wife's proper remedy was to appeal to the Full Court of the Family Court. 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."
15 In Barton v Walker [1979] 2 NSWLR 740, this Court (Samuels JA, Reynolds and Glass JJA agreeing) applied Ex parte Armstrong in considering whether an appeal lay under s 101 of the Supreme Court Act 1970 (NSW) from a decision of a judge in a division of the Supreme Court refusing to disqualify himself from further participating in proceedings involving two ex officio indictments filed against Messrs Alexander and Thomas Barton. Section 101 of the Supreme Court Act allows for an appeal (with leave, if interlocutory) from "any judgment or order of the Court in a Division": s 101(1)(a). Samuels JA noted that the parties did not contend that the refusal of the request for disqualification was a "judgment" but addressed the contention that it was "an interlocutory order". His Honour noted (p 747E-F):
"The order, which the appellants contend was made, was not entered … . However, the only formal disposal of the proceeding which could have occurred was his Honour's decision to reject the appellants' request; and, if that request were an application in the strict sense, then that decision would certainly have constituted an order … .
The matter is best approached, therefore, by considering whether the appellants' request (as I have called it for need of some general term) amounted to a justiciable application."
16 His Honour considered, but put to one side, the fact that there was no notice of motion filed by the appellants and the fact that the primary judge, in his reasons for rejecting the request, referred to it as an "application" and referred to his reasons as a "judgment". Before considering the authority of Ex parte Armstrong, his Honour expressed the view that a request for a judge to disqualify himself was not properly understood as an application for an order concerning the conduct of proceedings in the court. He commented that it was "a matter of real difficulty to conceive of an order directed by the judge to the judge forbidding himself to hear the case; at least in the absence of statutory regulation": p 749E. His Honour continued:
"The further difficulty encountered is that of the judge acting as judge in his own cause. How does the judge deal with assertions of fact which he knows to be incorrect? They might not be challenged by the party not moving. How can the judge himself introduce evidence, upon which he might have to rule, if its admissibility is challenged, and which he might ultimately have to evaluate?
…
These considerations, in my view, clearly show that a motion to disqualify a judge of the Supreme Court is not cognizable. The present informal practice is sensible and adequate …."
17 After referring to the passage in Ex parte Armstrong in which the joint judgment in the High Court dismissed the suggestion that a judge who simply continues to sit makes a decree, judgment or order, Samuels JA continued (at p 751D):
"Nor does he make an order, I would think, if he announces that he will sit, or gives reasons for deciding to do so.
I do not consider that any order was made in the present case from which an appeal can be brought."
18 These authorities have been followed in subsequent decisions in this State: see, eg, Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272 at 273 (Priestley JA, Hope and Glass JJA agreeing); Rajski v Wood (1989) 18 NSWLR 512 at 517-518 (Kirby P), 522-523 (Priestley JA) and 524 (Hope AJA), and Rogerson (1990) 45 A Crim R 253 at 255 (Gleeson CJ, Wood and Brownie JJ agreeing, in relation to an attempt to appeal against an interlocutory judgment or order in criminal proceedings under s 5F of the Criminal Appeal Act 1912 (NSW)).
19 The principle set out in the cases referred to above has been described as "well established": see Sir Anthony Mason, "Judicial disqualification for bias or apprehended bias and the problem of appellate review" (1998) 1 CLPR 21 at 22 (col 3). Nevertheless, its foundations have not been uniformly respected. The crack in the foundations, which tends to undermine the structure, is that a complaint of bias or apprehended bias may be relied upon as a ground of challenge in respect of any final or, significantly, any interlocutory order which is susceptible to appeal whether by leave or as of right: see, eg, Raybos Australia, cited above at [18] (Priestley JA) approved in Rajski v Wood, cited above at [18], at 518D (Kirby P) and 523B-C (Priestley JA). Whether or not the bias or apprehended bias has affected the actual order, the challenge is allowed because it alleges that the court was not properly constituted for the purpose of making any order in the proceedings. Frequently consequential orders will be made which will engage a statutory provision conferring a right to appeal, usually by way of leave: see, eg, Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48 at 64 (Gummow and Heerey JJ, Davies J agreeing). Whether such an informal request, if rejected, can properly give rise to a costs order need not be considered: but if a costs order were made it would affect the interests of a party so as to be an order which may be the subject of an appeal.
20 Nor is it necessary for present purposes to consider the rationale of Brooks v The Upjohn Company (1998) 85 FCR 469 in which the Full Court of the Federal Court sought to distinguish Barton v Walker on the basis that there had been a notice of motion filed and a formal order extracted: 85 FCR at 474D-F. Whether that distinction is available on the reasoning of Samuels JA in Barton, or the other authorities referred to above, might be doubted. However, the Full Court went on to note that if it were wrong in its assessment that Barton could be distinguished, it would not follow that decision: p 476B. (There was no finding that Barton was clearly wrong.) Their Honours also opined that "[t]he observations by the majority of the High Court in The Queen v Watson; Ex parte Armstrong at 266 were not essential to the decision in that case": p 476G. Whether it would be appropriate to disregard a joint judgment of the High Court in that manner, or even to treat it as "not essential" because it was rejecting a basis on which discretionary relief might be refused, but was not, may also be doubted. However, the comment that the principle "does not sit all that comfortably with the later decision" of this Court in Australian National Industries Ltd v Spedley Securities Ltd (In liq) (1992) 26 NSWLR 411 is correct: see Brooks at 476B. In Spedley, Gleeson CJ and Samuels JA were in dissent and made no reference to Barton, whilst the manner in which the majority dealt with Barton was not beyond question. Kirby P considered it "unnecessary to consider whether the issue is one properly before this Court" (at p 423E-F) but continued:
"However, as all of the parties (and Cole J) invited this Court to rule on the matter, as the issue could readily be tendered in another way conformably with Rajski v Wood and as it is manifestly convenient and desirable that the issue of the suggested disqualification of Cole J should be decided as quickly as possible … I would simply pass the Barton v Walker issue by, saying nothing more upon it."
21 Mahoney JA in Spedley purported to affirm the principle in Barton but held that Cole J had "made an order that properly is the subject of appeal within s 101 of the Supreme Court Act 1970", without identifying the order: 26 NSWLR at 436-437.
22 Some of these difficulties have been noted in other jurisdictions including in a careful judgment of the Full Court of the Supreme Court of South Australia in Southern Equities Corporation Ltd (In liq) v Bond (2000) 78 SASR 339 at [3]-[4] (Olsson J), [97]-[100] (Williams J) and [107]-[118] (Bleby J).
23 If it were necessary to resolve in the present case whether an appeal was available, I would conclude that it was not. The weight of authority in this Court clearly favours that proposition. Even though it appears not to have been applied in Spedley, no member of the Court in that case suggested that Barton v Walker was wrong: to the contrary, the only members of the majority who referred to it either assumed or affirmed its correctness.
24 The applicant sought to distinguish Barton v Walker (and associated authorities) on the basis that they were concerned with decisions in superior courts, whereas the present case concerned the District Court. However, that point of distinction does not carry weight. Each case was concerned with the meaning of the word "order" in statutory provisions permitting an appeal and no basis was demonstrated for suggesting that the word had a different meaning in the Supreme Court Act from that in the District Court Act. If inconvenience or anomalies were to be taken into account, the arguments in favour of a broader interpretation would be stronger in relation to the Supreme Court than the District Court. As the applicant accepted, jurisdiction to review the decision of a District Court judge may arise under s 69 of the Supreme Court Act by way of relief in the nature of prohibition.
25 Finally, the applicant asserted that Barton, and its progeny, were wrong. However, as already noted, Barton followed Ex parte Armstrong and it is not open to this Court to say that Armstrong was wrong. As already stated, I do not consider that the reference in Armstrong to the unavailability of an appeal was an inessential comment, nor would I disregard it if I thought it were. That problem aside, there are a number of factors which would need to be addressed before this Court overturned its earlier line of authority, none of which were addressed in argument.
26 The only basis upon which this Court might properly not apply the principle set out in Ex parte Armstrong would be because it was concerned with the exercise of judicial power under Chapter III of the Constitution. There is authority for the proposition that such an order will not arise unless it is "decisive of the rights of the parties": see Yule v Junek (1978) 139 CLR 1 at 14 (Mason J) and see Mellifont v Attorney-General (Queensland) (1991) 173 CLR 289 at 300 and the authorities at fn (30) (Mason CJ, Deane, Dawson, Gaudron and McHugh JJ). A broader view might be taken of the nature of a curial order, where it affects the constitution of the relevant tribunal under a State law, but there is no support for that view in the authorities: see Moller v Roy (1975) 132 CLR 622 at 639 (Mason J); Ah Toy v Registrar of Companies (1985) 10 FCR 280 at 285-286 (Toohey, Morling and Wilcox JJ). There are many kinds of interlocutory rulings which are not appealable judgments or orders: see The Commonwealth v Mullane (1961) 106 CLR 166 at 169. A ruling that evidence is admissible is not appealable: see generally Bozatsis & Spanakakis (1997) 97 A Crim R 296 at 303 (Gleeson CJ, Meagher JA and Bruce J agreeing); Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (NSWCA 20 May 1996, unreported) (Mahoney P, Meagher and Cole JJA agreeing) applied by Buchanan J in Lawrance v The Commonwealth [2007] FCA 1524: indeed in Hall v Braybrook (1956) 95 CLR 620 at 635, Dixon CJ said that "a magistrate's ruling that evidence is to be admitted or rejected cannot itself constitute an 'order' that may be reviewed … though of course if erroneous it may be a ground for reviewing a determination affected by it". See also Legal Practitioners' Complaints Committee v A Practitioner (1987) 46 SASR 126 at 127 (King CJ) applied by Spigelman CJ in Johnston v Nationwide News Pty Ltd [2005] NSWCA 17; (2005) 62 NSWLR 309 at [30], and see Rich v Australian Securities and Investments Commission [2005] NSWCA 233; (2005) 54 ACSR 365 at [6] and at [21]-[25]. No argument having been addressed to these matters, they need not be taken further.
27 It remains to note that if it were thought, contrary to the foregoing reasoning, that an appeal was available, it would be necessary to consider whether there should be a grant of leave. That question need not be considered, but, conformably with the factors set out below, there would be serious doubts about whether leave should be granted.
Jurisdiction: 'prerogative relief'
28 There is no doubt that this Court has power to restrain the trial judge from continuing with the proceedings, by making an order in the nature of prohibition pursuant to s 69 of the Supreme Court Act, if a proper basis for the exercise of that power is made out. As exemplified by Ex parte Armstrong, a basis for granting relief would be the demonstration that her Honour was biased or that there was a reasonable apprehension that she might not bring an unbiased mind to the resolution of issues in the proceedings. The applicant did not contend that the material to be discussed below established actual bias, but rather said that statements made by her Honour in the course of the proceedings might cause a fair-minded observer to entertain a reasonable apprehension of pre-judgment in relation to evidence yet to be given by Mr Park. However, relief in such a case is discretionary and there are a number of factors to be considered in determining whether an order in the nature of prohibition should be made in the present case: see discussion of general law principles in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [43]-[60] (Gaudron and Gummow JJ).
29 The discretionary factor which received most consideration from the parties was, understandably, the question of costs. This, however, tended to cut both ways. If the matter were allowed to proceed to judgment, and the judgment were subsequently set aside for a reasonable apprehension of bias, the additional six weeks of hearing anticipated would have been wasted expenditure. On the other hand, if the matter were to be stopped at this stage, the six weeks of aborted hearing would have had to be repeated in circumstances where the final outcome might not have been affected by the error. It is, of course, not possible to estimate the prospects of success of either side and neither party invited the Court to do so.
30 A second factor which may militate against intervention would be the absence of a reasoned decision with respect to the challenge brought before this Court. That difficulty does not arise in the present case, although it may be necessary to consider how this Court should treat the reasons given by the trial judge for continuing to sit in addressing the application for prohibition.
31 Two other matters should be noted in order to identify which authorities are relevant to the present question. First, there are reasons to distinguish cases where the primary decision-maker is an administrative tribunal, as opposed to a court. Questions of premature intervention have been given more limited weight in relation to administrative decision-making. Secondly, care must be taken to distinguish between intervention under general law principles and intervention by the High Court in granting "constitutional writs" under s 75(v) of the Constitution against Commonwealth officers, a term which includes the judges of superior federal courts: see The Queen v Ross Jones; Ex parte Green (1984) 156 CLR 185 at 218 (Brennan J) and see Re Refugee Review Tribunal; Ex parte Aala at [22]-[25] (Gaudron and Gummow JJ, thereafter discussing the history of the availability of prohibition under the general law). Although there was once some doubt as to the circumstances in which prohibition was a discretionary remedy, as opposed to one going "as of right" once the conditions for issue of the writ were made out, it appears to be widely accepted that the old writ should now be treated as discretionary: see Aronson, Dyer and Groves, Judicial Review of Administrative Action, 3rd ed, (2004), pp 714-719. (Although the writ procedure has been abandoned, it was not argued that different principles now apply to relief under s 69 of the Supreme Court Act: c.f. Solution 6 Holdings Ltd v Industrial Relations Commission of NSW [2004] NSWCA 200; (2004) 60 NSWLR 558 at [134] (Spigelman CJ), but see [160] (Mason P) and [184] (Handley JA).)
32 Two factors militate against intervention in the present circumstances. The first is that the basis for an apprehension of bias did not arise from some step or circumstance existing prior to and beyond the confines of the litigation. Rather, it arose during the course of the litigation and out of the conduct of the trial judge in her exchanges with counsel and the parties. Such exchanges must be viewed in the context of the conduct of a lengthy trial. Words may be used in the heat of the moment which, on reflection, should not have been used because they may convey an attitude inconsistent with the dispassionate appraisal of the evidence. Over time, the effect of the misplaced language may be dissipated or it may be expressly withdrawn. Such a situation may, of course, need to be distinguished from that in which, absent any provocation or need to express a view, the trial judge indicates a firm attitude in relation to particular evidence giving rise to a reasonable inference of pre-judgment: see, eg, Ex parte Armstrong (supra) and Vakauta v Kelly (1989) 167 CLR 568.
33 Similarly, the general obligation that a trial judge take steps to ensure that a litigant in person is appraised of his or her rights and the manner in which the trial is being conducted, may be tempered on occasion by the need to ensure that all parties comply with proper procedures. Some litigants in person (like some legal practitioners) can properly be interrupted and given firm directions as to what is proper conduct and what is not. Taken out of context, such remarks may be seen as indicative of bias against the litigant in person. It is important that they not be taken out of context.
34 These considerations will need to be applied in addressing the comments relied upon by the applicant as giving rise to an apprehension of bias in respect of Mr Park, who was unrepresented during the trial, though he had counsel appearing for him in this Court.
35 The second factor which militates against intervening at this stage of the present proceedings concerns the contestable basis of the application. Where a ground relied upon for prohibition demonstrates a patent or manifest want of jurisdiction on the part of the tribunal below, it may well be appropriate to intervene at an early stage to prevent the continuation of such proceedings. In other cases, early intervention may be appropriate because there is no remedy available by way of appeal or other challenge to a final determination: c.f. The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 118-119; Solution 6 Holdings Pty Ltd, 60 NSWLR 558 at [140]-[145] (Spigelman CJ, Mason P and Handley JA relevantly agreeing), as approved in Fish v Solution 6 Holdings Ltd [2006] HCA 22; (2006) 225 CLR 180 at [44], c.f. comments in dissent of Kirby J at [141]-[142] and Heydon J at [174]-[177].
36 In other circumstances, the Court will be required to exercise restraint and not interfere in proceedings at an interlocutory stage in the absence of some clear reason to do so, sufficient to outweigh "the undesirability of discontinuity, disruption or delay" in the established procedures of the law: see comment of the Full Court of the Federal Court in Lamb v Moss (1983) 49 ALR 533 at 545, referring to the established line of authority in respect of intervention in committal proceedings, applying, in particular, Sankey v Whitlam (1978) 142 CLR 1 at 25-26 (Gibbs ACJ), 80 (Stephen J) and 81-82 (Mason J). As the Full Court (constituted by Bowen CJ, Sheppard and Fitzgerald JJ) further noted, a similar approach had been adopted by this Court in Moss v Brown [1979] 1 NSWLR 114 at 132 where the Court (Moffitt P, Reynolds and Hutley JJA) noted, on the assumption that the Court had jurisdiction to grant relief:
"However, on any basis, the occasions in which this Court should, in the proper exercise of its discretion, entertain applications for orders in the nature of prerogative remedies or declarations in relation to committal proceedings must be exceedingly rare. For example, a statement of intention, or a revocable decision concerning the future conduct of the inquiry, or an interim refusal to adopt some course, could hardly provide an appropriate basis for the exercise of any jurisdiction which the Court has."
37 The undesirability of interrupting committal proceedings was noted in more detail in Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317 at 321-322 (Moffitt P) and at 329 (Hutley JA), Glass JA agreeing with both. It may, of course, be said that committal proceedings differ in material respects from civil trials. Nevertheless, the undesirability of interrupting the ordinary course of proceedings has force in each case: see, generally, Cain v Glass (No. 2) (1985) 3 NSWLR 230 at 235 (Kirby P), 253E (McHugh JA); Anderson v Attorney-General (NSW) (1987) 10 NSWLR 198 at 200-202 (Kirby P); 204-205 (Samuels JA) and 214 (McHugh JA).
38 It is against these principles that the applicant's request for relief in the present case should be addressed.
Principles relating to apprehended bias
39 There are various categories of case in which disqualification by reason of an appearance of bias may arise: see Webb v The Queen (1994) 181 CLR 41 at 74 (Deane J). The present case was not one in which the trial judge had any interest in the proceedings or their outcome, nor any association with any of the parties, nor any extraneous information as to the matters under consideration. The particular question was whether, through comments made in the course of the hearing, her Honour had indicated a fixed view as to the character and credibility of Mr Park, as a result of his conduct of his own case, prior to him giving evidence. As explained in the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6], the governing principle is that "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".
40 That test will require an evaluative judgment in particular circumstances as to what the "fair minded lay observer" can be taken to know. In Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [13] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ stated:
"Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. … At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx."
41 A distinction should be drawn between circumstances in which the judge is involved in "active case management" and circumstances in which the judge is expressing tentative views on issues arising in the case, as will frequently happen in the course of oral submissions. There may, of course, be circumstances where the two categories are not readily distinguishable, as, for example, where the trial judge might, in seeking to ascertain how long a particular phase of the trial might take, expressly indicate a view that certain issues are live and, impliedly, that others lack substance. In relation to the expression of tentative views, Kirby and Crennan JJ stated in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at [112] (Gummow ACJ agreeing at [4]):
"Sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case. However, one thing that is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias."
42 As will be seen below, this was not a case of the trial judge directly expressing a tentative view about any aspect of the issues in dispute: rather, her Honour's comments were expressed in her role as case manager in relation to the conduct of the parties to the proceedings.
43 There remains a questions as to what the fair-minded lay observer should be taken to know about the particular proceedings in question. The idea that any fair-minded lay observer would have sat through six weeks of the trial may be an oxymoron. In reality, the reference to such a person is no more than a personification of an objective test. There is usually no harm in such personification, which is a commonplace in the statement of legal principles, so long as it is not an excuse for fuzzy thinking about the test to be applied.
44 The key part of the test is that the observer is understood to be a lay person and not a lawyer. As expressed by Callinan J in Concrete Pty Ltd, at [177]:
"It is axiomatic that the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer. But the notional lay person should not be taken to be completely unaware of the way in which cases are brought to trial and tried."
45 The hypothetical lay observer in the present trial should be assumed to have knowledge of most of what went on at the trial, or at least such knowledge as would allow the person to place the comments of the trial judge in their proper context. Thus, he or she should be taken to be aware that: