63 I do in fact accept Mr Steedman's version of what was said at the 28 November 2000 meeting. I have already recorded that in general terms I accept Mr Steedman's evidence in preference to Mr Eckett's where they conflict. Furthermore, Mr Romas corroborated Mr Steedman's account and, in particular, that the words Mr Steedman used were, 'I didn't say anything to him that would prevent you from getting work'. Mr Romas was not cross examined and there was no challenge to his credit. In the circumstances, I find that the making of the representation alleged in par 7(a) of the defence and in par 3 of the cross claim is not established. "
17 In summary, in [52] his Honour referred to Mr Romas' account of the conversation of 28 November 2000, in [59] he referred to Mr Romas' account of the events of 3 May 2001, and in [63] he referred to Mr Romas' corroboration of Mr Steedman's account of the conversation of 28 November 2000. When the mistaken regard to Mr Romas' affidavit was discovered the reference in [59] to Mr Romas' account of the events of 3 May 2001 was not treated as significant, no doubt because it was substantially the same as Mr Eckett's account, nor was it treated as significant on appeal.
18 An affidavit had been sworn by Mr Romas, and had been filed and was included in an "agreed bundle of pleadings and affidavits" provided to the trial judge. We were informed that the trial judge asked the parties to "strip out" the tender bundle, but that that had not occurred in relation to the affidavits. However, the affidavit was not read, and there was no direct evidence from Mr Romas of what was said at the meetings. It was accepted that the trial judge mistakenly had regard to his affidavit.
19 After publication of the reasons of 27 November 2007 the respondent drew the mistake to the trial judge's attention. At a further hearing on 31 January 2008 his Honour received submissions on, amongst other things, amendment of his reasons.
20 In reasons delivered on that day he relevantly said -
"1. … The error is a reference in [52], [59] and [63] of my judgment to an affidavit of Mr Nick Romas, which although on the file in the proceedings was not in fact read at the trial. The relevant paragraphs of the affidavit went to the making of the representation in par 7(a) of the defence in a settlement conference which occurred on 28 November 2000.
2. In [63] of my reasons for judgment where I came to my conclusion concerning the making of that representation, after stating that I accepted Mr Steedman's version of what had been said and referring to the fact that I generally accepted Mr Steedman's evidence in preference to that of Mr Eckett in case of conflict, I referred to Mr Romas's evidence as corroborating Mr Steedman's account of the relevant statement.
3. The amendment of my reasons proposed on behalf of the plaintiff is that I should omit [52] and [59], where I refer to Mr Steedman's version and the two sentences in [63] where I refer to that version as corroborating Mr Steedman.
…
5. I have a clear recollection that I had come to the conclusion expressed in [63] that I accepted Mr Steedman's word on this matter without reference to Mr Romas's evidence. I regarded that evidence when I adverted to it as merely confirmatory of that conclusion. I did not refer to it in [63], but I did set out in [53] of my judgment cross examination of Mr Eckett concerning this subject matter, which derogated from his evidence in chief. As is apparent from my inclusion of that matter if [53], it is another of the matters that I took into account in discarding Mr Eckett's examination in chief on this subject matter.
6. Mr Kirk, of counsel for the plaintiff, has set out in his useful written submission principles concerning the variation of judgments and the amendment by Judges of their reasons for judgment. This, of course, is a case in which, although a decision has been announced and reasons for judgment have been delivered, no orders have yet been made, much less entered. I have no doubt that I have power to amend the reasons for judgment by expunging the error which is under discussion.
7. The appropriate course in my view is that advocated by Mr Kirk, that [52] and [59] of the reasons be deleted along with the third and fourth sentences of [63]. The only other amendment that I make is that the first of the words of the next and last sentence of [63] are 'In those circumstances". I intend to amend those words by substituting for the word 'those' the word 'the' so that the sentence commences 'In the circumstances'."
21 Apart from the change from "those" to "the", the trial judge thus deleted from his reasons the passages which I earlier put in bold. Amended reasons were in due course published.
22 Since the trial judge found that the appellants had not established that they were induced to enter into the deed by, or entered into it in reliance upon, any of the representations, it may be asked whether a flawed finding that the para 7(a) representation was not made is of any consequence. The appellants submitted that the trial judge's rejection of Mr Eckett's account of the conversation of 28 November 2000 might have influenced his view of Mr Eckett's credit more generally, including as to reliance on the representations, and that a new trial on all issues should be ordered. It is not necessary to decide whether this should be accepted.
23 It is an undoubted principle that a judge's decision should be made on the basis of the evidence and arguments in the case, and not "on the basis of information or knowledge which is independently acquired": Re Media, Entertainment and Arts Alliance; ex parte Hoyts Corporation Pty Ltd (1994) 119 ALR 206 at 210 per Mason CJ and Brennan, Deane, Dawson and Gaudron JJ, describing it as an aspect of "the rule against bias". Their Honours said that this aspect of the rule is similar to the rule of procedural fairness, but not identical because the question is whether in the circumstances the parties or the public "might entertain a reasonable apprehension that information or knowledge which has been independently acquired will influence the decision".
24 The trial judge's decision as found in the reasons of 27 November 2007 included regard to the material in Mr Romas' affidavit. The error was exposed and the reasons were amended. With the exposure and receipt of submissions on amendment of the reasons, there was no longer any question of denial of procedural fairness.
25 The proper area of discourse was that commonly spoken of as apprehended bias. Did the trial judge's decision as found in the amended reasons, with the explanation in the reasons of 31 January 2008, fail the now well established test of whether "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": Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6]: see also Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11]; Antoun v The Queen [2006] HCA 2; (2006) 224 ALR 51 at [1], [51], [82]; Concrete Pty Ltd v Parramatta Design & Development Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at [110].
26 In Ebner v Official Trustee in Bankruptcy it was said at [8], and has been affirmed in (for example) Smits v Roach [2006] HCA 36; (2006) 227 CLR 423 at [53], [56], that the application of "the apprehension of bias principle "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."
27 The appellants submitted that the steps were satisfied in two ways.
28 One was that the trial judge had initially come to his decision with regard to the material in Mr Romas' affidavit, and that this infringement of the aspect of the rule against bias was "ineradicable" because that the lay observer might reasonably apprehend that, despite the trial judge's explanation that he had come to the conclusion that he accepted Mr Steedman's word on the matter without reference to Mr Romas' evidence, he might not have brought to the choice between Mr Eckett's evidence and Mr Steedman's evidence a mind free from the material in Mr Romas' affidavit. The lay observer, according to the submission, might see the Romas material and other material on which the trial judge came to his decision as "not disentangleable".
29 The other was that, although the trial judge's explanation in the reasons of 31 January 2008 included that Mr Eckett's cross-examination as set out in [53] was a matter he took into account, his Honour had not in the reasons of 27 November 2007 said that he took it into account. This, it was said, might be seen as "bolstering-up" the explanation that the conclusion in [63] had been reached without reference to Mr Romas' evidence, and itself was a basis for the lay observer reasonably to apprehend that the trial judge might not have brought to his decision that Mr Steedman's evidence was to be accepted a mind free from the material in Mr Romas' affidavit.
30 The ultimate decision that Mr Steedman's evidence was to be accepted was not by way of reconsideration excluding regard to the material in Mr Romas' affidavit. The trial judge did not in the reasons of 31 January 2008 express a reconsideration. He explained his earlier consideration.
31 Accordingly, the "logical connection" inherent in the applicant's submissions was that, despite what the trial judge said in the reasons of 31 January 2008, acceptance of Mr Steedman's evidence might have involved more than confirmatory regard to Mr Romas' affidavit; and more, that there might have been "bolstering-up" because of a disposition to maintain a conclusion which had not in fact been reached without contribution from regard to Mr Romas' affidavit. When the trial judge stated the "clear recollection" that he had come to his conclusion without reference to Mr Romas' evidence, and that he had regarded Mr Romas' evidence as "merely confirmatory" of that conclusion, these are serious matters.
32 The two "mights" in the test reflect the importance that justice must both be done and be seen to be done, and the need for public confidence in the administration of justice. But the hypothetical lay observer is taken to be reasonable, and although the observer does not have a detailed knowledge of the law or the character or ability of the particular judge, reasonableness involves appreciation of ordinary judicial practice and of the judge's professional training and obligations of dispassionate decision-making. Reference may be made to the joint judgment of Gleeson CJ and Gaudron, McHugh, Gummow, and Hayne JJ in Johnson v Johnson at [12]-[13], and to the observation by Callinan J at [80] that -
" … it is important to keep in mind that the notional, fair-minded observer is a rational person not unacquainted with the legal process, the oath or affirmation that judges have taken and judicial obligations generally, and in broad terms what has occurred and may occur in the case before and after the challenged conduct."
33 In Concrete Pty Ltd v Parramatta Design & Development Pty Ltd at [111], Kirby and Crennan JJ said, referring to Johnson v Johnson, that it is "important to bear in mind the characteristics of modern litigation". It is common-place for judges to be provided with bundles of materials, documents for tender and also affidavits, not all of which will be tendered or read. The efficient dispatch of business requires pre-reading. As well, judges gain knowledge of material on which they must rule if admissibility is in question. Much material may come to a judge's attention which does not end up in evidence.
34 As was said by McClellan CJ at CL, Sully and James JJ agreeing, in R v Burrell [2007] NSWCCA 79; (2007) 175 A Crim R 21 -
"7. It is important when considering a submission of apprehended bias in a judicial officer to bear in mind the assumptions which must inform that consideration. Objectively, independence and firmness of mind are essential characteristics of a judge. A judge will be assumed to have a capacity to put from his or her mind evidence of a prejudicial kind which has been heard or seen but is not relevant to the determination of the question before the Court. In the Victoria v Australian Building Construction Employees and Builders Labourers Federation (1982) 152 CLR 25 Gibbs CJ rejected the suggestion that a judge could be influenced by the media. In the course of his reasons the Chief Justice said (at 58):
'It is the everyday task of a judge to put out of his mind evidence of the most prejudicial kind that he has heard and rejected as inadmissible.'
8. In the same case Stephen J said (at 76):
'Judges are necessarily engaged daily in hearing and later banishing from their minds evidence which is of a prejudicial nature and which proves to be inadmissible. They should both by experience and training, be better able to do so than most people.
…
11. … There are many occasions upon which a judge, either at a trial or on an appeal, may be asked to reconsider a ruling which he or she has made, a factual determination or a decision upon a matter of law. Matters are routinely returned from an appellate court to the trial judge to be determined according to law. The ordinary fair minded person understands that in the exercise of the judicial function it will be necessary, from time to time, for a judge to reconsider matters which have previously been considered or which may have been pronounced upon by that particular judge. Such a person, properly informed, would not in my opinion reasonably apprehend that the judge or judges would bring other than an impartial mind to the determination of the matter: R v Reid (2004) 148 A Crim R 425 at [26] R v Kearns [2003] NSWCCA 367."
35 Mistakes can occur, as occurred in the present case. In R v Burrell the Court reconsidered an appeal when it was realised that the factual basis on which it had acted, as set out in a document in a folder containing written submissions, was out of date and should not have been included in the filed material, and rejected the submission of reasonable apprehension of bias. The Court's observations concerning apprehended bias are not affected by the High Court decision that there had not been power to re-open the appeal, Burrell v R [2008] HCA 34; (2008) 248 ALR 428, a matter not in issue in the present case.
36 As I have said, the present case is not one of reconsideration. Appreciation of judicial capacity impartially to reconsider, however, informs also the perception of an explanation such as that given by the trial judge. A judge's later statement can be taken into account in assessing any apprehension which the lay observer might reasonably hold, see Johnson v Johnson at [14], referring to re JRL; ex parte CJL (1986) 161 CLR 342 and Vakauta v Kelly (1989) 167 CLR 568, and more widely the acceptance of proper expression of tentative views in that case and in cases such as Antoun v R and Concrete Pty Ltd v Parramatta Design & Development Pty Ltd; in McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 161 LGERA 170 at [81] Basten J said succinctly, "In a case where the decision-maker has publicly identified that prejudicial material has been available, the observer would be entitled to take account of a statement that it has not affected the decision-maker's approach to the decision, but need not be expected to accept the disclaimer: see, eg, Re JRL; … ".
37 The appellants referred to the observation by Lord Goff in R v Gough (1993) AC 646 at 659, cited by this Court in Kwan v Kang [2003] NSWCA 336 at [101], that "bias is such an insidious thing that, even though a person may in good faith believe that he was acting impartially, his mind may unconsciously be affected by bias". They relied particularly on Kwan v Kang. In an interlocutory judgment the judge had made findings involving fraud by a party. The party asked that the judge disqualify himself. The judge declined, and handed down a "revised" judgment in which the findings were changed to findings of reasonable grounds for fraud and it was said that they were open to be "controverted for the purposes of the substantive issues still to be determined". It was held that, in the whole of the circumstances, the strong impression created by the original findings "expressed in emphatic language of absolute finality" was not eradicated by the statements in the revised judgment that they were made only at a prima facie level.
38 The facts in Kwan v Kang were very different from those in the present case. In particular, the Court said at [68] that it was important to note that in the revised judgment the judge did not say that in the original judgment he had "said something that he did not mean, or that he had said something by mistake, or had not said something he meant to say". Their Honours said at [102] that had the judge -
" … stated that in making what appeared to be absolute and unconditional findings he had made a mistake, had not intended to make findings on that basis and his use of language was in error, a different conclusion may have been open, but as already observed in [68] and [88] above, neither in the revised judgment nor at any other time did his Honour explain his earlier remarks in this way."
39 The present case must be addressed on its own facts, according to the test stated above.
40 Assessing the lay observer's perception, including the effect of the trial judge's later statement, should begin with what on a fair reading would be made of the trial judge's reasons published on 27 November 2007. What, from those reasons, was the part played by regard to Mr Romas' affidavit in the conclusion expressed at [63] that his Honour accepted Mr Steedman's version of what was said at the 28 November 2000 meeting? The acceptance was stated in the first sentence of [63], with explanation in the following sentences in that paragraph. However, it was to be read with the preceding paragraphs, all of which informed coming to the conclusion.
41 Three matters may be noted. First, Mr Eckett's evidence of what was said on 28 November 2000 included Mr Steedman saying, as a general statement preceded by reference to OMD, that he had "said and done nothing to prevent you from getting work". This was at the least open to be understood as applying to the statement that he had said nothing to Mr Cooper about Mr Eckett. Secondly, the trial judge expressly set out at [53] that in cross-examination Mr Eckett had agreed that Mr Steedman's response to his complaint that Mr Cooper would not return his calls was words to the effect, "I did not say anything about you to Mr Cooper which would prevent you from getting work". Thirdly, Mr Eckett's account of what occurred at the conference of 3 May 2001 included Mr Romas saying, plainly referring to the earlier meeting on 28 November 2000, that Mr Steedman had said that neither he nor anyone else at MindShare had done anything to prevent Mr Eckett from getting work. This was evidence of what Mr Steedman had said, corrobative of Mr Steedman's own account.
42 Quite apart from Mr Romas' affidavit, then, and particularly with Mr Eckett's agreement in cross-examination to the words "which would prevent you from getting work", the evidence to which the trial judge referred in the paragraphs preceding [63] all but demanded acceptance of Mr Steedman's version of what was said at the 28 November 2000 meeting. Setting out that evidence necessarily underlay the acceptance stated in the first sentence of [63], and contrary to the appellants' submission the word "Furthermore" introducing the regard to Mr Romas' affidavit plainly denoted confirmatory regard.
43 I do not think that the lay observer could reasonably have questioned the trial judge's explanation, in the reasons of 31 January 2008, that he had come to the conclusion expressed in [63] without reference to Mr Romas's evidence and regarded that evidence as merely confirmatory. That is particularly so when the trial judge had at [53] set out Mr Eckett's evidence in cross-examination in which he agreed that Mr Steedman's response was in words which included "which would prevent you from getting work". Although it was not specifically mentioned in the original [63] (or indeed the amended [63]), the point of setting out that evidence could only have been that Mr Eckett in cross-examination relevantly concurred with Mr Steedman's version of what was said at the 28 November 2000 meeting. With an understanding of the reasons published on 27 November 2007, there was no "bolstering-up" and perception of "bolstering-up" was not reasonably open.
44 There is not the contrast between initial emphatic statement and later correction found in Kwan v Kang, and the trial judge's statement of his recollection and the confirmatory role of the regard to Mr Romas' affidavit were in the circumstances unexceptional. I do not think that apprehended bias, according to the test earlier stated, has been made out.
45 This ground of appeal should not be upheld.