There is No Apprehended Bias
10The test for whether there is apprehended 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 that the judge is required to decide (Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11] and Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6]-[7]).
11In Johnson, the High Court observed the following in respect of apprehended bias (at [13], footnotes omitted):
13. Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case." Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
12The application of the apprehended bias test requires two steps (Ebner at [8]; see also Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [63]; Barakat v Goritsas (No 2) [2012] NSWCA 36 at [9] and Spencer v Bamber [2012] NSWCA 274 at [108]):
8. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
13While Mr Ross has identified the matters that might be said to lead me to decide his case other than on its legal and factual merits, he has not articulated any logical connection between those matters and the feared deviation from the course of deciding his case on the merits. It must be recalled that what is at issue in these part-heard proceedings is not whether Mr Ross has breached the EPAA (he has previously admitted that he has: see Ross (No 4)), but whether the remedy of removal and reinstatement is appropriate in the exercise of my discretion, or whether some other form of remedy should be ordered in respect of the unlawful development on the property.
14Dealing in summary form with the matters that he has identified, it is objectively apparent that there is no apprehended bias because:
(a) although I have remonstrated with Mr Ross for being late, being absent, or failing to comply with timetables set by the Court for the conduct of the proceedings on multiple occasions, this amounts to no more than the proper case management of the proceedings, allowing for the fact that Mr Ross is a litigant in person;
(b) Mr Ross claims that either he did not consent, or consented but with "no admissions", to the orders that were made on 13 August 2012 and that resulted in his notice of motion being resolved by agreement. The evidence discloses otherwise (see T9.40; 13.15 and 20.18; see also Ross (No 2) at [22], [24] and [27]; Ross (No 4) at [7], [8], [15] and [18] (and his affidavit sworn 12 July 2002, read earlier in the proceedings) and Ross (No 5) at [26]). The consent was clearly unqualified, save as to costs. It was his admission that he had breached the EPAA because he had built the dwelling on the property other than in compliance with the development consent that resulted in the matter being adjourned part-heard, to permit Mr Ross and the council to have the matter dealt with by way of a s 96 modification application. Mr Ross' notice of motion to stay the proceedings was not proceeded with because an adjournment was, in any event, granted. This is reflected throughout the judgment (Ross (No 4));
(c) Mr Ross claims that he was denied procedural fairness at the 13 August 2012 hearing and that I made wrong findings of fact. Even assuming this to be correct, this does not equate to bias, apprehended or actual in the manner he asserts, but gives rise to appealable error. Further, the decision of the Court on that day not to permit him to rely on a voluminous affidavit served very late and in breach of the timetable was due to the unfairness and prejudice that would have resulted to the council had that course been permitted. As for Mr Ross' complaint that he was not permitted to cross-examine or test any of the council's witnesses particularly Mr Adrian Moore (a council officer), no request was made by Mr Ross to do so. Presumably this was because of his admitted breaches of the EPAA and because he had obtained the adjournment that he was seeking by his motion to stay the proceedings;
(d) there was no agreement between the Court, the council and Mr Ross that these Class 4 proceedings could not continue unless and until there had been a completed merit assessment of all of the development on the property (either by way of a s 96 modification application or a building certificate application). Even if there had been such an agreement which had been breached, this does not give rise to bias in the proceedings. In any event, there has been a merit assessment of the development, albeit one that did not resolve the matter to Mr Ross' satisfaction (see the decision of Ross v Lane Cove Council and Ross (No 6));
(e) the selective transcript excerpts referred to by Mr Ross fail the objective test for apprehended bias set out above both individually, and collectively;
(f) I do not know whether the findings in Ross (No 4) coloured subsequent proceedings or not. The notice of motion dealt with in Ross (No 5) was determined on its merits. Mr Ross has not sought to appeal that decision;
(g) there has been no collusion between myself or Dixon C concerning these Class 4 proceedings or the Class 1 proceedings before her. I have no idea what occurred in the latter proceedings other than what is disclosed by her in her judgment and contained in subsequent affidavits filed by Mr Ross;
(h) the remark about Mr Ross' legal experience was made in the context of Mr Ross having told the Court that he took the proceedings very seriously and had experience in "the legal process" and that, therefore, his absence from Court on 24 July 2012 was not to be construed as intentional: see T1.15-1.39);
(i) as found in Ross (No 6), Mr Ross failed to appear when the matter was set down for hearing on 20 March 2013. Ms Benn did appear, but not, however, on his behalf. The Court is not privy to the communications between Ms Benn and Mr Ross. If a timetable was made on that day that somehow prejudiced him, this was entirely his own fault;
(j) I do not objectively consider that anything said or done by me in the hearing on 22 May 2013 gave rise to an apprehension of (or actual) bias (see Ross (No 6)). Mr Ross lost that application, in part, because of his failure to explain the delay in bringing it. On that day, I did not make a timetable for the filing by Mr Ross of his evidence (that timetable was made on 20 March 2013). Rather, I ordered him to inform the council in writing by 12pm of evidence that he would be relying on at the resumed Class 4 proceedings on 27 May 2013, because to date nothing had been served by him on the council in accordance with the timetable previously made by the Court on 20 March 2013; and
(k)this application has been bought very late given, as Mr Ross stated in cross-examination, the alleged bias has been present from early on. The fact that this application was not made on 22 May 2013 is, in my view, telling.