Maules Creek Coal Pty Ltd v Environment Protection Authority

, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419; [2023] HCA 15 R v Bozatsis (1997) 97 A Crim R 296 R v Cheikho (2008) 75 NSWLR 323; [2008] NSWCCA 191 R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; [1969] HCA 10 R v Dinh (2000) 120 A Crim R 42; [2000] NSWCCA 536 R v Reid (2004) 148 A Crim R 425; [2004] NSWCCA 301 R v Rogerson (1990) 45 A Crim R 253 R v Steffan (1993) 30 NSWLR 633 Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96, [1994] HCA 34 Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39 Re Rozenes; Ex parte Burd (1994) 68 ALJR 372, [1994] HCA 11 Rex v Justices of Bodmin; Ex parte McEwen [1947] 1 KB 321 Seymour v Attorney-General (Cth) (1984) 4 FCR 498 Sportsbet Pty Ltd v New South Wales (2012) 249 CLR 298; [2012] HCA 13 Woodhouse v Director of Public Prosecutions [2015] NSWCA 40 Texts Cited: Legislative Assembly, 17 November 1987, Hansard p 16087 Category: Principal judgment Parties: Maules Creek Coal Pty Ltd (Applicant) Environmental Protection Authority (Respondent) Representation: Counsel: T Howard SC with J Lee (Applicant) C Leggat SC with A Garsia and G Marsden (Respondent)

Solicitors: King & Wood Mallesons (Applicant) NSW Environment Protection Authority (Respondent) File Number(s): 2021/234554 Publication restriction: Nil Decision under appeal Court or tribunal: Land and Environment Court of New South Wales Jurisdiction: Class 5 Citation: Environment Protection Authority v Maules Creek Coal Pty Ltd [2023] NSWLEC 94 Date of Decision: 15 September 2023 Before: Pritchard J File Number(s): 2021/234554; 2021/234556; 2021/234557; 2021/234558

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant was charged with four offences under the Protection of the Environment Operations Act 1997 (NSW) relating to the operation of a coal mine near Maules Creek. The trial is part-heard, having run in the periods 30 January-10 February 2023 and 18-21 September 2023. A further four day hearing is listed for 13-16 November 2023. On 14 August 2023 the trial judge's associate received an email from a Ms Anna Christie, asking for an audio-visual link to follow the hearings when it resumed on 18 September. The email said that "[a]s previously disclosed to Her Honour, I am undertaking a law and science PhD and following these matters closely as potential case studies". The reference to something having been previously disclosed caused the applicant concern. After a query was raised of the trial judge by the applicant, it emerged that there had been an earlier interaction between her Honour and Ms Christie. On 1 February 2023 the trial judge had been informed by the Registrar that a number of university students would be observing proceedings in the gallery. It is not uncommon in the Land and Environment Court for judges to invite such students into chambers for a cup of tea and to discuss matters not pertaining to a particular case. On 3 February, during the first tranche of the hearing, the trial judge encountered Ms Christie in the public lifts, mistook her as one of the students referred to by the Registrar and invited her into chambers. When it emerged that Ms Christie was not one of the students referred to by the Registrar, she quickly terminated the conversation and asked Ms Christie to leave chambers. There was no discussion in chambers between the trial judge and Ms Christie about the substance of the case. The trial judge did not disclose the meeting to the parties at the time. Unbeknownst to the trial judge, Ms Christie was an active public opponent of the mining activities of the applicant. Her name had been mentioned in passing in the evidence but she was not expected to be a witness. Her Honour had not recognised the name when mentioned in evidence, as she did not recall the name of the person she had met. The trial judge rejected the applicant's application that she disqualify herself, making a formal order to that effect. The applicant sought leave to appeal against that order pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW). Three main issues arose: (1) Is the order made by the trial judge an "interlocutory order or judgment" for the purposes of that provision such that the Court has jurisdiction to grant leave to appeal? (2) If so, should this Court grant leave to appeal? (3) If so, did the trial judge err in declining to disqualify herself? As there is a line of authority of the Court holding that the refusal of a disqualification application is not an "interlocutory judgment or order" within the meaning of s 5F(3)(a), a bench of five judges was constituted to hear the application. The Court (Leeming, Payne and Kirk JJA, Wilson and Fagan JJ) granted leave to appeal but dismissed the appeal, and held as follows: As regards the first issue (whether there was an interlocutory order)

JUDGMENT

1. THE COURT: The applicant in this matter, Maules Creek Coal Pty Ltd, operates a coal mine near Maules Creek in the vicinity of Boggabri. It is currently being prosecuted by the respondent, the Environment Protection Authority (EPA), in proceedings in Class 5 of the Land and Environment Court's jurisdiction before Pritchard J. It is charged with four offences under the Protection of the Environment Operations Act 1997 (NSW) (POEO Act). Three of the charges allege contravention of conditions of an environment protection licence, contrary to s 64(1) of the POEO Act. Those counts each involve an allegation that the applicant did not carry out licenced activities "in a competent manner" in various respects in August 2020. The fourth charge alleges contravention of s 140(1) of the POEO Act by dealing with materials (explosives) in such a manner as to cause noise, caused by its failure to "deal with those materials in a proper and efficient manner", occurring in August 2020.
2. The trial commenced on Monday 30 January 2023, running through until Friday 10 February 2023. The proceedings were then adjourned part-heard. The trial was listed to continue in the period 18-21 September 2023 (which occurred), and has a further four days of hearing listed for 13-16 November 2023.
3. On 11 September 2023, in circumstances outlined below, the applicant emailed the associate of the trial judge foreshadowing that an application would be made on the resumption of the trial on 18 September 2023 that her Honour disqualify herself for apprehended bias. In order to minimise disruption and delay, her Honour listed that application for hearing on Thursday 14 September 2023. She delivered written reasons the next day for rejecting the application, and made an order accordingly. In the form entered in JusticeLink, the order was: The Court orders that the defendant's application that Pritchard J recuse herself from hearing these proceedings is dismissed.
4. The applicant seeks leave to appeal against that order pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW). Three main issues arise: 1. Is the order made by the trial judge an "interlocutory order or judgment" for the purposes of that section such that this Court has jurisdiction to grant leave to appeal? 2. If so, should this Court grant leave to appeal? 3. If so, did the trial judge err in declining to disqualify herself?

Relevant facts

1. On Monday 14 August 2023 the associate of the trial judge received an email from Ms Anna Christie, who described herself as "PhD candidate, Western Sydney University", seeking permission to follow the hearing of the prosecution by audio-visual link when it resumed in mid-September. Amongst other things, the email said that "[a]s previously disclosed to Her Honour, I am undertaking a law and science PhD and following these matters closely as potential case studies".
2. On Friday 18 August 2023, the associate sent a reply email to Ms Christie, copied to the solicitors for the parties, advising her that an AVL link would be published on the Court's daily hearing list. That reply email meant that the parties could see the content of Ms Christie's email request to the associate. The reference to something having been previously disclosed to her Honour by Ms Christie caused the applicant some concern.
3. On Thursday 31 August 2023 the applicant's solicitor emailed the associate asking that the matter be relisted at the earliest available opportunity in light of the email exchange. The matter was relisted for mention on Friday 8 September. On that occasion senior counsel for the applicant said the following (emphasis in the original): Ms Christie, by her own public statements over a period of years, is a person who is and has for a number of years been an active campaigner against Whitehaven Coal and the Maules Creek Coal Mine, and who has made a number of complaints and publicly expressed concerns about the asserted environmental impacts of the Maules Creek Mine, including, in particular, about the asserted impacts on the local community of noise, and more specifically, mine blasting conducted at the Maules Creek Mine. It's also evident that, as a founding member of a group called the Leard Forest Research Node, Ms Christie considers that one of the roles of that group is to support regulators in the investigation and prosecution of environmental non compliances at the Maules Creek Mine, a role she had referred to as a "community policing role". Ms Christie is also a person who has been expressly referred to in the evidence in the proceedings as a person who was copied into the initial complaint about the subject blast made to the EPA by prosecution witness Ms Roselyn Druce. In the circumstances, our client is understandably concerned by the indication in Ms Christie's email to your Honour's associate that there has been some previous communication from her to your Honour in relation to the proceedings. We also understand that Ms Christie may have attended your Honour's chambers at your Honour's invitation during the morning adjournment on one of the trial hearing days on 3 February 2023. I took the view that I should raise these matters with your Honour now prior to the resumption of the trial. May I respectfully request that your Honour inform the parties of what previous communications Ms Christie has had with your Honour in relation to these proceedings, and to also specifically ask your Honour whether your Honour met with Ms Christie in your Honour's chambers in an adjournment during the course of the trial on 3 February 2023, as we understand may be the position?

Was the order an "interlocutory judgment or order"?

1. Section 5F of the Criminal Appeal Act is entitled "Appeal against interlocutory judgment or order". Pursuant to s 5F(1), the section applies, amongst other things, to the proceedings for the prosecution of offenders on indictment in the Supreme or District Courts, along with proceedings in Class 5 of the Land and Environment Court's jurisdiction.
2. Section 5F(2) gives the Attorney-General or the Director of Public Prosecutions a right to appeal to this Court against "an interlocutory judgment or order given or made in proceedings to which this section applies". A defendant does not have such a right but may seek permission to appeal pursuant to s 5F(3), which provides as follows: Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings - (a) if the Court of Criminal Appeal gives leave to appeal, or (b) if the judge or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal.
3. Both subsections (2) and (3) apply with respect to "an interlocutory judgment or order given or made in the proceedings". No part of that phrase is defined in the Criminal Appeal Act.
4. In relation to civil matters, s 101(1) of the Supreme Court Act 1970 (NSW) states that, subject to other provision, an appeal lies to the Court of Appeal from "any judgment or order of the [Supreme] Court in a Division". Section 101(2)(e) provides that leave to appeal is required from "an interlocutory judgment or order in proceedings in the Court". That phrase is in substance the same as the phrase employed in s 5F. Section 127(2)(a) of the District Court Act 1973 (NSW) uses the same phrase in similarly providing that leave to appeal to the Court of Appeal is required from interlocutory judgments or orders of that Court.
5. The starting point here is that the applicant seeks leave to appeal from what is a formal order of the Land and Environment Court. As recorded in the Justicelink system, the order is: "The Court orders that the defendant's application that Pritchard J recuse herself from hearing these proceedings is dismissed". The order is interlocutory as it does not finally determine the rights of the parties: see Bienstein v Bienstein (2003) 195 ALR 225; [2003] HCA 7 at [25]-[28]. Nevertheless, the EPA relies on a series of decisions of this Court holding that a decision by a judge not to disqualify themselves is not an interlocutory judgment or order falling within s 5F. It submits that this Court should follow those decisions unless persuaded that they are plainly wrong, regardless of subsequent decisions of the Court of Appeal. It submits that those cases do not meet that threshold.

Decisions of the Court of Criminal Appeal

1. The EPA invokes the following decisions: R v Rogerson (1990) 45 A Crim R 253 at 255; R v Reid (2004) 148 A Crim R 425; [2004] NSWCCA 301 at [12]-[15]; Gurung v R [2012] NSWCCA 201 at [41]; Chamoun v Director of Public Prosecutions (NSW) [2018] NSWCCA 182; Decision restricted [2023] NSWCCA 98. These decisions do not stand apart from Court of Appeal authority in the way that the EPA claims.
2. In Rogerson Gleeson CJ, speaking for the Court, said the following in relation to an attempt to appeal a decision by a District Court judge declining to disqualify himself (at 255): It seems to me that there is no interlocutory judgment or order in that respect concerning which an appeal would lie under s 5F of the Criminal Appeal Act. The Court of Appeal held in the case of Barton v Walker [1979] 2 NSWLR 740 that the refusal of a judge of the Supreme Court to disqualify himself after an application in that behalf had been made to him did not constitute a judgment or order against which it was possible to appeal to the Court of Appeal. Of course such a refusal might constitute a ground of appeal against the ultimate decision in the case in the course of which such an application was made, but, so it was held, a refusal by a judge to accede to a submission that he disqualify himself is not itself a judgment or an order of the court. I am respectfully of the view that the reasons that are given for that conclusion in Barton v Walker are cogent, and in my view the case should be followed in the Court of Criminal Appeal.
3. As can be seen, his Honour relied on and followed the Court of Appeal's decision in Barton v Walker. He said that he considered the reasoning there cogent, but did not add to it. It is not surprising that his Honour took this approach given the common language employed in the provisions in question. Given the absence of additional reasoning, the persuasive weight of Rogerson rises no higher than Barton v Walker.
4. In Reid Spigelman CJ, speaking for the Court, said in an ex tempore judgment that "this is not an appropriate case to determine whether or not Barton v Walker, as applied in Rogerson, should continue to be followed", noting that "[t]here has been no submission to this Court that Barton v Walker was wrong" (at [13]). The Chief Justice considered that the attempt to distinguish Barton was unpersuasive, and in any event seemed to conclude that the disqualification argument was without merit.

The decision in Barton v Walker

1. Barton v Walker, decided in 1979, concerned a case where an affidavit had been filed in Supreme Court proceedings seeking that the judge disqualify himself. The next day, in open court, the judge gave short reasons why that application would be rejected, doing so without having heard argument. He directed that the affidavit be taken off the Court's file. It appears that that may have been the only formal order made. An application to appeal from this decision was brought in the Court of Appeal, together with separate proceedings seeking a declaration that the judge was disqualified from hearing the matter in question. Both applications were rejected.
2. Samuels JA, speaking for the Court, discussed the nature of what had occurred in a procedural sense, noting that "that there is an informal practice which requires the individual judge to determine his own disqualification" (at 749). His Honour accepted, however, that a formal order could be made rejecting an application for disqualification, and implicitly accepted that this could be an order within the meaning of s 101(2)(e) (at 747). In his view, the issue "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" (ibid; emphasis added).
3. His Honour considered that it did not (at 749-750): It is, however, to my mind, 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. … The problems are compounded when one comes to consider the case of a collegiate court. Suppose a challenge is made to one judge of the three rostered to hear the case. How is the matter to be dealt with? Does that judge hear the "motion" and make an "order" which may affect the court's business, something which he would ordinarily have no power to do? Or do his colleagues determine the application, and make an "order" which binds him, something which they would ordinarily have no power to do? Or is another division of the court to be assembled to decide the matter?
4. After reviewing some American authority, Samuels JA said (at 751): What emerges from these authorities is that, even where an interlocutory procedure has been established for disqualification on the ground of actual bias, the public interest in the expeditious administration of justice is seen to militate against interlocutory appeals (or their equivalent) where all questions at issue may be determined upon an appeal after final judgment.

Barton v Walker and Rogerson should not be followed

1. In Bienstein, in 2003, a litigant sought to appeal to a full bench of the High Court alleging, amongst other things, that a decision of Hayne J, sitting alone, was affected by apprehended bias. Section 34 of the Judiciary Act 1903 (Cth) provides a right of appeal from a single justice, but leave to appeal is required for an "interlocutory judgment". McHugh, Kirby and Callinan JJ dismissed the appeal as incompetent on the basis that leave had not been sought. Significantly, however, their Honours indicated that Hayne J's decision not to disqualify himself was an interlocutory judgment capable of being the subject of an application for leave: at [23]-[29]. On that basis, their Honours went on to indicate that any such application would have been rejected on the merits in any event. However, Barton v Walker was not referred to, and it appears there was no argument made that such decisions were not encompassed by the statutory reference to an "interlocutory judgment". Neither side was represented. The decision thus has limited direct significance for current purposes.
2. Of greater importance is the High Court's decision in Michael Wilson & Partners in 2011. It concerned a New South Wales Supreme Court case in which two applications had been made that the trial judge disqualify himself, each of which the judge had rejected. One of the appeal grounds raised against the final decision of the judge was that he erred in those earlier decisions. The Court of Appeal upheld the appeal on that basis. That decision was reversed in the High Court, which held that the bias ground was not made out. Even so, there was discussion of whether it was open to the respondent to have relied on the bias ground in relation to the final appeal when it had not sought leave to appeal from the earlier two decisions refusing the disqualification analysis.
3. The joint judgment of four justices noted that some interlocutory decisions are of a nature that, if not challenged directly, the losing party will be taken to have given up the right to challenge the decision (at [78]-[79]). They then said the following (citations omitted): [80] In this case, if the respondents were right in asserting that there was a reasonable apprehension of bias, the whole of the trial with its attendant expense and use of court time would be wasted. Of course it must be recognised that the respondents in this case had no right to appeal against the refusal of Einstein J to recuse himself. But the respondents did have a right to seek leave to appeal. [81] As was explained in Gas & Fuel Corporation Superannuation Fund v Saunders, a later interlocutory order made by a judge who has refused an application that the judge not hear the matter on account of a reasonable apprehension of bias is an order against which leave to appeal can be sought on the ground that the judge who made the order should not have done so. Conversely, as Saunders itself illustrates, where a judge allows an application for disqualification and makes orders effecting that decision, leave to appeal can be sought against those orders on the ground that they should not have been made. Thus the order against which the respondents could have sought leave to appeal in this case was whatever order was made by Einstein J after he had refused to recuse himself. If, as the respondents asserted, Einstein J should not have continued to sit in the matter, whatever order was made (other than an order adjourning the case for the purpose of allowing another judge to deal with it) was an order which should not have been made by the judge who made it and would found an application for leave to appeal. And as it happened Einstein J made such an order on 4 June 2009 when he set dates for compliance with the general requirements for trial of proceedings in the Equity Division. [82] In so far as Barton v Walker holds to the contrary, that decision should not be followed. The decision in Barton v Walker depended upon the proposition that whether a judge should continue to hear a case was a matter only for the judge concerned and that a motion that the judge disqualify himself or herself was "not cognizable"; the judge was held to make no order on the application for disqualification. [83] The decisions about apprehension of bias that have been given by this Court since Barton v Walker show that a judge's decision to grant or refuse an application for disqualification is not a matter only for the particular judge. As was pointed out in the plurality reasons in Ebner, the apprehension of bias principle has its roots in principles fundamental to the common law system of adversarial trial.

Leave to appeal

1. The fact that it is open to appeal the trial judge's order does not mean that the Court should grant leave to do so. There are well-established, significant reasons for exercising restraint in granting leave to determine interlocutory disputes in criminal matters. Thus leave will not be granted readily: R v Dinh (2000) 120 A Crim R 42; [2000] NSWCCA 536 at [34]. As Johnson J explained in Agius v R (2011) 80 NSWLR 486; [2011] NSWCCA 119 at [10] (citations omitted): This Court has said that leave will only be granted where the decision which is the subject of the s 5F application is attended with sufficient doubt so as to warrant the matter being argued on appeal, or where the interests of justice otherwise require the intervention of the Court at this stage of the proceedings. The court should bear in mind the undesirability of interrupting criminal proceedings by the bringing of a s 5F application.
2. In this case it is appropriate to grant leave to appeal for the following reasons: 1. The issue of whether Barton v Walker and Rogerson should continue to be followed is an important one which itself merits a grant of leave and full consideration of the issues raised. 2. The proceedings are listed for a further four days of hearings in November, with no guarantee that the case will be completed in that time. Significant further time and resources of the Land and Environment Court and the parties will be employed in determining the case. Witnesses will be required to give evidence. If it were to be held in any subsequent appeal that the trial judge should have disqualified herself then all of that will be for nought, and the matter will need to be retried. 3. This application can be determined prior to resumption of the trial, thus avoiding unacceptable disruption of the proceedings. 4. In the unusual circumstances of this case, involving a judge meeting a critic of one party in chambers, it is in the interests of justice that any doubt about whether the trial judge should continue to hear the matter be resolved.
3. That leave is granted in this case should not be understood to suggest that it will readily be granted when a disqualification issue is raised. There is a long line of authority militating against interference in the conduct of criminal prosecutions through appeals against interlocutory decisions, referring to concerns as to the dangers of fragmenting the criminal justice process. That is particularly so in proceedings involving a jury. In Chow v Director of Public Prosecutions (1992) 28 NSWLR 593, at 599-600, Kirby P observed as follows: The High Court of Australia and this Court have repeatedly emphasised the undesirability of interference - whether by declaration or otherwise - in the conduct of criminal proceedings. Such interference is reserved to exceptional or special cases: see Sankey v Whitlam (1978) 142 CLR 1 at 22, 23, 24; Barton v The Queen (1980) 147 CLR 75 at 104; Lamb v Moss (1983) 76 FLR 296 at 307-308; 49 ALR 533 at 545; Bacon v Rose [1972] 2 NSWLR 793 at 797; Cain v Glass (No 2) (1985) 3 NSWLR 230 at 235. More than lip service must be given to injunctions of this kind. They are based upon the high public interest in the orderly conduct of criminal proceedings, which include the sentencing of persons convicted following a plea. They rest upon the avoidance of interruption of such proceedings by those who have access to funds and a determination to manipulate criminal prosecutions. The availability of appellate procedures following conviction and sentence and the possibility that many problems disappear, or are resolved, at first instance if only cases are allowed to take their ordinary course provide further reasons to restrain an over-enthusiastic response to interlocutory claims for judicial review of criminal proceedings.

Whether the trial judge should have disqualified herself

1. The principles relating to disqualification for apprehended bias were not in dispute: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]-[8]. 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. Application of that test involves two steps. First, it requires the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. Secondly, 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.
2. The trial judge seemingly accepted that some relevant matter had been identified for the purposes of the first step, being the circumstances of her interaction with Ms Christie in chambers: at [73]. Her Honour held that the argument failed at the second step. Her core conclusion was expressed as follows: [87] In its recusal application, the defendant has referred to nothing in the established facts capable of suggesting, let alone establishing, any interest on my part or any connection with the possibility of departure from impartial decision making. ... In circumstances where there was no prior or subsequent association with Ms Christie, and where there was no discussion about the substance of the case in chambers, I am not satisfied on the evidence that I could be "unconsciously compromised" by my interaction with Ms Christie in chambers.
3. The applicant argues that her Honour erred in this conclusion. There are three overlapping strands to its case: 1. a concern that the trial judge did not disclose the substance of what Ms Christie said that led her quickly to terminate the meeting; 2. that whatever was communicated "might have had the capacity to unconsciously compromise the impartiality of the Trial Judge"; and 3. the fact that her Honour did not disclose the meeting until the issue was raised by the applicant over six months later.

The limited disclosure of what led the judge to terminate the meeting

1. The applicant submits that the very fact that her Honour has not disclosed precisely what it was that Ms Christie said that caused her to bring the meeting to a rapid close raises a concern. The applicant submits that her Honour has failed "to properly, fairly and frankly disclose what it was that was said to her" by Ms Christie. What was and was not disclosed in this regard is discussed above at [27]-[33].
2. Her Honour indicated at [76] of her judgment that "[t]here is no evidence that any information was communicated to me by Ms Christie, other than that which allowed me to understand that I had proceeded on the basis of a misunderstanding and terminate the interaction". There is force in the applicant's submission that to refer to there being "no evidence" was not a real answer to their concerns in circumstances where the only witnesses to the conversation were the judge herself (and perhaps her tipstaff or associate) and Ms Christie. That being said, either side could have sought to obtain evidence from Ms Christie (who may well have had the clearest recollection of what was said on 3 February), and there is nothing to suggest that they did so.
3. In any event, it is important to note there is no suggestion that by choosing to meet Ms Christie in chambers the trial judge might have been manifesting some favourable disposition to people critical of the applicant's mining activities. The applicant has not disputed that her Honour's invitation was an innocent case of mistaken identity. Nor has any criticism been made of the fact that the trial judge, consistently with what was said to be a practice in the Land and Environment Court, was prepared to invite a university student who was (as her Honour had understood it) observing the case for educational purposes into chambers for a discussion and a cup of tea. If the apprehended bias application had involved suggestions that the invitation of Ms Christie into chambers itself created a concern, then the absence of a clearer statement on this issue might have reinforced a concern about the possible appearance of a judicial predilection to look favourably on critics of the applicant's mining activities.
4. Further, by the time that the issue was raised directly by the applicant on 8 September 2023 some seven months had passed since the interaction, and the fair-minded lay observer (whose characteristics are discussed further below) would accept that for judges, as for anyone else, memories fade. In the circumstances we do not consider that a fair-minded lay observer would attribute much significance to the fact, of itself, that her Honour did not address precisely what was said.

The argument as to unconscious compromise of impartiality

1. The applicant's argument on this central strand is founded on the premise that "there was a private meeting in chambers between the Trial Judge and a person who is a longstanding and active campaigner against Whitehaven Coal and the Maules Creek Mine with interests aligned with the prosecutor in relation to the prosecution of the charges". It argues that even without more this might be enough to satisfy the test. The applicant then builds on its factual submission that something was communicated by Ms Christie in chambers which was connected to the prosecution, being something that the trial judge considered improper or inappropriate.
2. The applicant argues that in light of what was (or may have been) communicated to the trial judge by Ms Christie, the observer might consider her Honour's impartiality in resolving the case might unconsciously be compromised. These matters arise in a context where what is at issue in the prosecution is not just objective facts as to what occurred, but evaluative judgments as to, for example, whether the applicant carried out activities in a competent manner.

Case law relied upon by the applicant

1. There is no doubt that the law has a repugnance to judges receiving communications about a case outside court processes. The applicant invoked three cases in support of its argument.
2. The issue was addressed in Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39. Gibbs CJ explained relevant principles, and their importance, as follows (at 346-347, citations omitted): It is a fundamental principle that a judge must not hear evidence or receive representations from one side behind the back of the other. … The principle, which forbids a judge to receive representations in private, is not confined to representations made by a party or the legal adviser or witness of a party. It is equally true that a judge should not, in the absence of the parties or their legal representatives, allow any person to communicate to him or her any views or opinions concerning a case which he or she is hearing, with a view to influencing the conduct of the case. Indeed, any interference with a judge, by private communication or otherwise, for the purpose of influencing his or her decision in a case is a serious contempt of court.
3. Mason J similarly stated that it "would be inconsistent with basic notions of fairness that a judge should take into account, or even receive, secret or private representations on behalf of a party or from a stranger with reference to a case which he has to decide" (at 350).
4. That case involved custody proceedings in the Family Court. A court counsellor had prepared reports on certain issues in which her conclusions favoured the wife. In light of something in the last report the parties had agreed in the morning of the second day of the hearing that an adjournment was needed to address something raised. When the counsellor became aware of this she approached the wife at court and told her she thought the proposed adjournment was outrageous and that she proposed to do something about it. Amongst other things the counsellor met privately with the judge hearing the matter in the lunch break, during which she communicated some views. Those views not only opposed the proposed adjournment but involved opinions again strongly favouring the wife. The judge then called counsel for both parties into her chambers, and a further discussion about the issues was conducted in their presence.
5. The High Court, by majority, held that the private discussions between the judge and counsellor gave rise to an apprehension of bias. Gibbs CJ, for example, said that the husband "was entitled, not unreasonably, to fear that the counsellor may have made remarks adverse to him when she was alone with the judge and that the judge might have been influenced by them" (at 350). Mason J held that the seriousness of the departure from cardinal principle was "certainly alleviated by the judge's prompt and proper disclosure to counsel for the parties of the approach made by [the counsellor] and of the substance of the discussion which occurred in private chambers" (at 355). However, his Honour considered that a reasonable apprehension of bias still arose from the circumstances, including in particular because a private approach had been made by a potential witness to the judge, that the witness had expressed views about matters in dispute, and "the judge seems to have proceeded on the footing that the initiative taken by [the counsellor] required serious consideration by the court and counsel for the parties" (at 356). Brennan J reached a similar conclusion. Wilson and Dawson JJ dissented, considering that any actual or apparent prejudice had been cured by full and prompt disclosure by the judge, such that the matters raised could be contested.

Applying the Ebner test

1. As noted, as regards the first Ebner step, the matter that the applicant relevantly says might lead the judge to decide the prosecutions other than on its legal and factual merits is the possibility of unconscious compromise of impartiality in light of her interaction with Ms Christie. There is no doubt that such a concern, to the extent it arises, suffices to make out the first step. The second step question is the presence of a logical connection between that concern and the feared deviation from the course of deciding the case on its merits. Here, the two questions overlap, both depending on the significance of the concern about not addressing issues in the case on their merits in light of the interaction between the judge and Ms Christie.
2. Although the test involves two "mights", it also involves the notion of there being a reasonable apprehension of bias, which requires more than fanciful or speculative possibilities: note Re JRL at 533; R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553, [1969] HCA 10; CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 at [19]. The hypothetical fair-minded lay observer is not a lawyer. Even so, the nature of the decision-maker is relevant: CNY at [58] and [136]. As regards judges, the observer is taken to understand that the person 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": Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [12]. Even so, they may be taken "to recognise that even a professional decision-maker is not 'a passionless thinking machine' and that information consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-making": CNY17 at [28], citation omitted.
3. Although the observer "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": Johnson at [13], citation omitted. The observer is "taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision": Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [23]. Thus, they can be taken to have some basic understanding of the nature of the court in which the judge sits, and the sorts of matters that are determined by that court.

The non-disclosure of the meeting after it occurred

1. The applicant also points to the fact that the trial judge did not disclose her interaction with Ms Christie around the time it occurred or, in fact, until queried about it some seven months later. Senior counsel for the applicant accepted that non-disclosure alone would not be enough to make out the disqualification argument. Nevertheless, the argument should be considered in light of all of the circumstances of the case.
2. The applicant relies upon an observation by Merkel J, relating to non-disclosure, that a "party or the public may well be left with the impression that there was intentional concealment or non-disclosure, or that something was 'wrong about it all'": Aussie Airlines v Australian Airlines (1996) 65 FCR 215 at 221. The applicant submits that her Honour "incorrectly approached the question of whether she should have disclosed the meeting by assuming acceptance of the explanations she has given of what occurred and how it came to occur when she eventually did disclose it".
3. Four members of the High Court explained the need for disclosure, and the significance of a failure to disclose, in Ebner (citation omitted): [69] As a matter of prudence and professional practice, judges should disclose interests and associations if there is a serious possibility that they are potentially disqualifying. … One reason for the practice is that it gives the parties an opportunity to bring to the attention of the judge some aspect of the case, or of its possible consequences, not known to, or fully appreciated by, the judge. [70] It is, however, neither useful nor necessary to describe this practice in terms of rights and duties. At most, any "duty" to disclose would be a duty of imperfect obligation. A failure to disclose is relevant (if at all) only because it may be said to cast some evidentiary light on the ultimate question of reasonable apprehension of bias. A failure to disclose has no other legal significance. In particular it does not, of itself, give a litigant any right to have the judge desist from further hearing the matter or to have the ultimate decision in the matter set aside for want of procedural fairness.
4. Thus judges should disclose matters if there is a serious possibility that they are potentially disqualifying. The applicant is correct to argue that the issue does not depend simply on whether the judge considers that the matter would not be disqualifying. The standard is less demanding than that, for the obvious reason that determination of the significance of the issue may be affected by submissions, and perhaps evidence, from the parties. That being said, the notion of "serious possibility" involves some degree of judgment being brought to bear, on which different people may reasonably take different views.

Orders

1. The orders of the Court should be as follows: 1. Grant leave to appeal pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW). 2. Dismiss the appeal.

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