Legal Principles for Disqualification
7 The principle upon which a judge will be disqualified from participating in judicial proceedings on the ground of apprehended bias was explained by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 [6]. Their Honours said:
"… 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."
8 Significantly, their Honours went on to explain (Ebner 205 CLR at 345 [8]) how the principle is applied in two steps, namely:
"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."
9 The fair minded lay observer will also be a person who is informed: Webb v The Queen (1994) 181 CLR 41 at 51-52, 55 per Mason CJ and McHugh J, 57 per Brennan J agreeing on this point, 87-88 per Toohey J, see too at 76 per Deane J; see also Concrete Pty Limited v Parramatta Design & Developments Pty Limited (2006) 229 CLR 577 at 609-619 [110]-[112] per Kirby and Crennan JJ, 635-636 [177] per Callinan J, 582 [4] per Gummow ACJ and 612 [120] per Hayne J agreeing.
10 Earlier, in Johnson v Johnson (2000) 201 CLR 488 at 493 [12] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ emphasised that the hypothetical reasonable observer of a judge's conduct is an objective person who is taken to be reasonable and the judge being observed is a professional judge whose training tradition and oath or affirmation require the judge to discard the irrelevant, the immaterial and the prejudicial.
11 Importantly, a judge's duty is to hear and determine the litigation before him or her. In Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 294, Mason, Murphy, Brennan, Deane and Dawson JJ said that:
"… 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."
see too Kartinyeri v Commonwealth (1998) 156 ALR 300 at 302-303 [16]-[18] per Callinan J.
12 The critical question here is whether Ms Luck has identified any matter which a fair-minded and informed lay person might unreasonably apprehend could lead me not to decide her proceedings impartially and on their legal and factual merits. The mere fact that someone may have made comments about me on the internet can provide no such basis. A fair-minded person would recognise there would be many people in the community who disagree, sometimes not rationally, with the outcome of litigation. An unsuccessful litigant may make all sorts of assertions against the judge or court in which he, she or it lost their case. Those mere assertions may take matters out of context and may not be based on any reasonable or rational ground. And, the existence of rights to appeal recognises that from time to time judges may be found to have made errors. But, a fair‑minded lay observer could not form a reasonable apprehension that a judge would be biased in a case involving unrelated parties merely because the judge had been criticised in respect of a previous decision.
13 Because justice is administered in public, judges and their decisions are open to public scrutiny. Over 70 years ago Lord Atkin said that committal for contempt of court by scandalising the Court had become obsolete: Ambard v Attorney General for Trinidad and Tobago [1936] AC 322 at 335. But this should not obscure the distinction between baseless attacks on judges or courts that undermine public confidence and the administration of justice and the right of the public to criticise the administration of justice and those who are involved in that endeavour. The right to criticise is wide. Critics can make outspoken comments about the exercise of judicial power provided that they do so in good faith: Ambard [1936] AC at 335.
14 A fair-minded and informed lay observer will be robust about criticism of judges, courts and their decisions because he or she will know the latitude afforded to commentators in our free society. And, he or she would know that if a public complaint had been made that, say, a judge was corrupt, it would almost certainly be investigated by the relevant authorities and be the subject of vigorous examination in the media. A fair minded observer would also be aware that disgruntled litigants, cranks and others may make unsubstantiated or false allegations against judges or courts which are either investigated and found to be baseless or so obviously baseless that they ought not be taken seriously.
15 But the fair‑minded and informed lay observer would not leap to the conclusion that a judge or court had given rise to a reasonable apprehension of bias that he or she could not hear a case, merely because one website or commentator had attacked the judge or court or a decision. A fair-minded and informed lay observer would say to himself or herself that:
"Although this looks serious, it is about a judge. If this had anything in it, surely the authorities would have looked at it. The judge has not been charged with anything; there is no public inquiry. Like everyone else, a judge is entitled to be presumed innocent until he or she is proved guilty. I am not going to jump to any conclusion."
(cf: Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 300-301 per Mason J)
16 The procedures laid down in s 72 of the Constitution assure that, relevantly, a judge of a court established by the Parliament can only be removed from office by the Governor-General, on an address by both Houses of the Parliament, on the ground of proved misbehaviour or incapacity. Mere untested and unsubstantiated allegations cannot ordinarily provide a reasonable basis for disquiet in the community that a judge may or may not perform his or her constitutional functions. Such allegations ordinarily cannot be a reasonable, proper or legitimate basis for any litigant to ask a judge to disqualify himself or herself. The more this is so when the allegations are not said to relate to anything to do with the case of the litigant seeking the judge's disqualification, or to lead to any connection between the allegations and the judge's performance of his or her function to hear and determine that or any other matter in accordance with the judicial oath: see Ebner 205 CLR at 348 [19]-[20]. Indeed, as Gleeson CJ, McHugh, Gummow and Haynes JJ said in Ebner 205 CLR at 348 [20]:
"… if the mere making of an insubstantial objection was sufficient to lead to a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable."
17 The bare assertion that someone has published a complaint about a judge on the internet or elsewhere does not provide a logical connection between the matters to which Ms Luck has referred, and my ability, constitutional function and duty to decide her matter impartially, in accordance with its legal and factual merits. Nor has Ms Luck articulated any such logical connection.
18 The mere fact that a judge before his or her appointment was instructed by a solicitor, or firm of solicitors, or acted or appeared for a client, is incapable of being a reasonable basis on which a fair minded and informed lay person could form a reasonable apprehension of bias: Bienstein v Bienstein (2003) 195 ALR 225 at 232 [33] per McHugh, Kirby and Callinan JJ. Everyone knows that most judges have been appointed from private practice, and indeed that most of them have been barristers. Barristers, as a matter of professional practice, obey the cab rank rule, namely that they must accept instructions to appear where they are available and practice in the field, unless they have some proper basis to refuse the instructions. At the bar, barristers frequently appear in unrelated cases for and against the same clients, and barristers frequently are instructed by a firm of solicitors one day, and appear the next day in another case where that firm acts for or instructs the barrister's opponent, or his or her former client.
19 Upon assuming judicial office, those past dealings are at an end for the judge. The judge is, and must be, independent of the past associations. That is the essence of judicial independence. It is not tenable to suggest that any mere association Ms Luck has raised provides any possible ground for a reasonable apprehension of bias by the fair-minded and informed lay observer: Bienstein 195 ALR at 232 [33].
20 I need say no more than there is no substance in any of the assertions that Ms Luck relies upon to claim an apprehension of bias. A fair-minded and informed lay observer would not reasonably apprehend, on the bases relied on by Ms Luck, that I might not bring an impartial mind to the resolution of her matter. For these reasons, I reject Ms Luck's application that I disqualify myself from hearing her matter.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.