His Honour: That is the point" (emphasis supplied).
7 The plaintiff completed his evidence in chief and Mr Blackburn commenced his cross-examination which had not finished when the Court adjourned for the day. The following morning Mr Blackburn made an application that the Judge disqualify himself for apparent or ostensible bias. This was rejected and the trial continued.
8 The Judge reserved his decision and delivered judgment in July 2006. He rejected all defences, assessed the plaintiff's damages for defamation in the sum of $100,000, the damages for injurious falsehood in the sum of $1,008 and entered judgment for the plaintiff accordingly.
9 The defendant appealed maintaining its claim of ostensible bias which would lead to a new trial and, in the alternative, challenging the final judgment on the merits. The Court heard argument on the issue of ostensible bias and deferred argument on the merits. Since we are of the view that there must be a new trial we will not express any view on the merits issues.
10 The test for deciding whether a judicial officer is disqualified by reason of the appearance of bias was stated by Gleeson CJ, Gaudron, McHugh, Gummow and Callinan JJ in Johnson v Johnson (2000) 201 CLR 488, 492:
"It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias … is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide."
11 The test requires the court to consider possibilities ("might") at two stages. As Gleeson CJ, McHugh, Gummow and Hayne JJ said in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [7]: "The question is one of possibility (real and not remote), not probability". Thus the test, for good reason, establishes a relatively low threshold. However as the High Court said in Johnson (above) at 493:
"The observer is taken to be reasonable; and the person being observed is 'a professional judge whose training, tradition and oath or affirmation require him [or her] to discard the irrelevant, the immaterial and the prejudicial'."
12 The appearance of bias to a lay observer may be conveyed by the use of loose language without the judge being actually biased at all. In most of the cases where a judge has been disqualified for ostensible bias there was, in all probability, no actual bias. The principle exists not only to protect litigants from actual bias and injustice, but to maintain public confidence in the courts by ensuring that justice appears to be done.
13 The case for the appellant depended on the words alone and no reliance was placed upon the Judge's tone or demeanour when they were uttered. Most were said during counsel's opening, before the Judge had heard evidence or legal argument and the rest were said early in the plaintiff's evidence in chief.
14 In our opinion the discussion of the meaning of the heading "Silk's purse empty" was not such that a fair-minded lay observer might reasonably apprehend any bias against journalists, the defendant or the print media. The Judge's statement that "you don't expect" a journalist to understand the distinction between a silk and a junior only meant that journalists as outsiders may not be aware of professional distinctions. His statement that they don't care, in context, only meant that journalists would think that such professional niceties were not important and should not get in the way of a good headline. As his Honour said a little later: "It's a reporter's loose interpretation for the purpose of a neat headline".
15 The headline was not the basis of a separate imputation and his Honour's remarks were not directed to an issue or a matter relevant to an issue. As McHugh, Kirby and Callinan JJ said in Beinstein v Beinstein (2003) 195 ALR 225, 231:
"Bias exists if the Judge might not bring an impartial and unprejudiced mind to the resolution of the issues."
16 The second matter relied on was the discussion with Mr Evatt about "the campaign" being conducted by The Herald. This was of some relevance because the article contrasted the readmission of the plaintiff with the disbarring of barristers who had not been paying their income tax. The Judge's statement "it was unjustified in that it plainly carried the suggestion that the whole of the bar was involved" might be seen as evidencing a view that The Herald, without justification, had defamed the whole class. This was followed by his statement that it was "obvious" that The Herald "didn't care" which might be seen as evidencing a view that The Herald did not care that it had traduced the whole of the Bar because of the actions of a few.
17 This attitude, said to be "obvious" from The Herald's campaign, could be relevant where the plaintiff was alleging that a journalist had written a defamatory article based on a court judgment without taking enough care to get it right. The Judge's comments were such that, particularly when combined with the later comments, a fair-minded lay observer might reasonably apprehend an attitude towards The Herald such that the Judge might not bring an impartial and unprejudiced mind to the resolution of the claim against that newspaper.
18 The next comment relied on was the contrast drawn by the Judge between the attitude of the public to the judgment of a court and to "a reporter's slur". A slur was what the plaintiff was complaining about. A fair-minded lay observer might apprehend this as passing judgment in pejorative terms on statements in the article.
19 The last matter relied upon was the exchange with Mr Blackburn following his objection to a question by Mr Evatt. During the exchange the Judge said of the article: "On one reading of this, everything is belittling, it is unremitting, every sentence is honed with exquisite precision to injure".
20 Although he used colourful language his statement had begun with "On one reading of this" which seemed to indicate that the article could be read another way. In that event the question would be one for legal argument in due course. However when Mr Blackburn demurred to the description the Judge said: "I cannot see anything else". This could be seen as indicating that the Judge had made up his mind and that his adverse view was a considered one.
21 The view thus expressed by the Judge may have been entirely correct, but this is not relevant at that early stage. As Callinan J said in Antoun v The Queen (2006) 80 ALJR 497, 517 paras [83] and [85]:
"… the fact that the case may not only at the time, but also in retrospect, seem to be a strong one, indeed a very strong one, does not absolve the judge from giving it a fair hearing … it is not relevant to the enquiry as to whether an apprehension of bias has arisen that the strength of one party's case may have brought the judge to the point of making the remarks that he did."
22 Malice was an issue in the claim for injurious falsehood, and it might also be relevant to the assessment of damages for defamation. The plaintiff's particulars of malice, which were not then before the Judge, indicated that he was relying on the terms of the article as evidence of malice. The Judge at an early stage had expressed strong views that could be seen as indicating pre-judgment on an issue.
23 The claim for injurious falsehood was a minor part of the overall case, but this cannot affect the application of the principle that a judge who evinces ostensible bias is disqualified.
24 When all the passages relied on, apart from the first, are considered together, there was enough in our judgment to establish the basis for disqualification.
25 Mr Evatt, for the respondent, argued with some force that the appellant had waived the objection by waiting until the next morning before making an application to the Judge to disqualify himself. Delay in this case was significant because the trial only lasted three days. The principle relied on was considered in Vakauta v Kelly (1989) 167 CLR 568, 579. As Dawson J explained at 588 it prevents a litigant from taking up two inconsistent positions and involves an application of the doctrine of election (Handley "Estoppel by Conduct and Election" p 285).
26 Mr Blackburn made no actual election to waive any disqualification, and an election cannot be imputed in this case because the delay until the next morning was not unreasonable in the circumstances. The appellant is a frequent litigant in the Supreme Court and Mr Blackburn was entitled, if not bound, to seek express instructions before making the application. He was also entitled to wait until the official transcript could be obtained and considered and this could not occur under normal circumstances until after 6pm that evening.
27 The transcript would enable the representative of the lay client to evaluate the evidence and any advice before giving instructions. The transcript would also avoid any unseemly debate between counsel and the Judge as to what was actually said. By waiting until the next morning the appellant's counsel did not elect to waive the objection.
28 The following orders should be made: