RAYBOS AUSTRALIA PTY LTD v TECTRAN CORPORATION PTY

WORDS and PHRASES - "reasonable apprehension of bias".

Kirby P Once again there is before the Court, in proceedings between the present parties, an appeal in which it is contended that a judge is disqualified from deciding matters in contest by reason of imputed bias.

Interlocutory orders allegedly affected by imputed bias The appeal is brought by leave of the Court, differently constituted. See Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 8], Court of Appeal, 12 February 1990 per Mahoney JA (with whom Priestley and Clarke JJA agreed). It is the sequel to an earlier decision of the Court in Rajski v Wood, (1989) 18 NSWLR 512.

By the last mentioned decision, the Court upheld a motion, brought by two judges of the Supreme Court, to dismiss a purported challenge by Raybos Australia Pty Ltd (Raybos) and Dr L Rajski (the appellants) to the assignment of Badgery Parker J, a judge of the Supreme Court, to hear certain proceedings between the parties. It was held that a decision by a judge not to disqualify himself on the ground of bias (or the reasonable apprehension of bias) was not

a decision of a kind against which an appeal to this Court lay. Barton v Walker [1979] 2 NSWLR 740 was applied. However, the Court pointed to what Priestley JA had earlier said in Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 3] (reported in part in (1986) 6 NSWLR 272). His Honour there observed that, once orders were made by a judge allegedly affected by such bias, application might be made to the Court for leave to appeal against those orders. In that way, the question of the judge's alleged disqualification could be appropriately posed for early decision.

The appellants took the hint. They immediately sought, and obtained, leave to appeal. Badgery Parker J, who had submitted to the order of the Court in the earlier proceedings, delayed the relisting of the matter in order for the challenge now before the Court to be determined. In doing so, his Honour adopted an obviously sensible course. As was observed in Rajski v Wood and Ors, once the proceedings between the parties get under way, the trial will be a lengthy one. It will involve substantial public and private costs. It would be a great misfortune if the question of the judge's alleged disqualification could not be heard until the conclusion of such a trial. In my opinion that is not the law. Barton v Walker does not so hold. These proceedings, which challenge interlocutory orders of Badgery Parker J, provide an appropriate vehicle to bring the issue before the Court for resolution. I did not understand the respondents, or any of them, to suggest otherwise.

Specifically the appellants ask that the Court should set aside two interlocutory orders made by Badgery Parker J. They were:

(a) An order made on 24 November 1989 to give leave to Tectran Corporation Pty Ltd (the first respondent) in proceedings number 16938 of 1980 ("the 1980 proceedings") to file a further amended statement of claim in those proceedings, which order was further amended on 5 December 1989 to permit it to file a second further amended statement of claim; and

(b) An order made on 27 November 1989 providing for the order in which the 1980 proceedings and proceedings number 14716 of 1985 ("the 1985 proceedings") and proceedings number 15424 of 1986 ("the 1986 proceedings") are to be heard.

On the return of the appeal, Raybos was represented by a solicitor, as is required by the practice of the Court. See Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (1986) 8 NSWLR 104. Dr Rajski, appeared in person. At the request of Raybos, which is apparently controlled by Dr Rajski, he was heard first. He outlined the arguments for the appellants which are not, for the present purpose, differentiated.

The respondents were separately represented. Simplifying things, one group constitutes what might be called the Tectran interests. Another group constitutes partners of the firm of solicitors Allen Allen and Hemsley. They were at one time the solicitors for the Tectran interests. The 1985 proceedings amount to an action by the appellants alleging, in substance, that the solicitors had joined in a conspiracy with the Tectran interests and with others or had otherwise engaged with them in an abuse of process. A description of what they are alleged to have done is conveniently found in a judgment of Miles J, then a Judge of the Supreme Court, in Tectran Corporation Ltd and Ors v Raybos Australia Pty Ltd, unreported, 5 June 1985 at 6:

"[P]utting the matter very broadly, the basis of these allegations is that the action was commenced by Tectran in the knowledge of those concerned, including the active solicitors, that it was without foundation and that its purpose

URAYBOS AUSTRALIA PTY LTD v TECTRAN CORPORATION PTY LIMITED [NO 9] (Kirb$ P)

was solely or predominantly not to enforce Tectran's legal rights but at the least to secure an advantage for Tectran in negotiations with Raybos and at the most to crush Raybos and Leszek Rajski commercially. Further allegations are made that after the litigation was commenced the Court was deliberately misled as to the purpose of certain interlocutory applications and that deliberately false evidence was presented to the Court."

Involvement of judge as counsel in party's legal aid appeal When, in 1984, the appellants wished to bring the conspiracy proceedings against the solicitors, they secured certain legal advice to the effect that such proceedings were viable and justified. To bring those proceedings they sought, but were refused, legal aid. They appealed from that refusal. The appeal was heard by a Legal Aid Review Committee of the Legal Aid Commission (the Commission) pursuant to s56 of the Legal Aid Commission Act 1979. One member of that committee was Mr J Badgery Parker QC (as his Honour then was). It is alleged that, in considering and deciding that appeal, the committee, including his Honour, had access to confidential information concerning the appellants' case. This included the advice of his counsel and solicitors which would normally be covered by legal professional privilege. See s25 of the Act.

In the event, the appellants' appeal failed. According to the appellants, the adverse decision of the committee set them back more than a year in proceeding with their claim of conspiracy and abuse of process. However, with some support, including from the Public Interest Advocacy Centre, the appellants pressed on without legal aid with what became known as the "1985 proceedings". Those proceedings eventually came before Miles J. A consideration of whether, and how, they should proceed lasted more than 30 days. As later described by Clarke J, in yet another judgment in the series:

"Tn broad terms... his Honour found the existence of an arguable case that there was an abuse of process, or a conspiracy, involved in the institution of the proceedings and also, at a later stage, in the maintenance of an application for access [to the discs, tapes and printouts of software the subject of the litigation in the Court below] which was not bona fide."

Because of the part which Mr Badgery Parker QC had played in the refusal of legal aid, and more especially because of the access which he had had to the appellants' confidential and privileged material upon which the decision was based, the appellants at the outset of the proceedings before Badgery Parker J (as his Honour had become) applied to him to disqualify himself from hearing the proceedings between the parties. The appellants specified a number of grounds relating to the social and professional acquaintance which his Honour had with the parties or legal representatives in the case. Such grounds were dismissed. They have not been referred to again in these proceedings. It is unnecessary to advert to them.

The real ground for disqualification relied on by the appellants was that his Honour had been involved in the deliberations of the Legal Aid Review Committee in 1984. On that ground alone it was said that his Honour should stand aside.

Badgery Parker J was invited by Dr Rajski to check with the records of the Commission to confirm his involvement in the committee. That invitation followed his Honour's statement (later repeated in his reasons) that he had no independent recollection of his involvement in the deliberation of the review committee. By agreement of the parties, his Honour called for access to the minutes of the Commission relating to the Legal Aid Review Committee sittings

in 1984. No complaint whatever is made by the appellants concerning his Honour's access to such minutes. The minutes confirmed that his Honour had (as counsel) taken part in the Legal Aid Review Committee's deliberations concerning the appellants. However, in addition to those minutes, one of the Commission's files was made available to, inspected and perused by his Honour. The contents of that file are not made entirely clear by the transcript. The appellants invited the Court to infer that the file included the confidential documents supplied by the appellants to the Commission at the time of the 1984 application. This provided the appellants with a further basis to press their claim for his Honour's disqualification.

Judge declines request to disqualify himself Badgery Parker J heard extensive argument on the claim for his disqualification. One cannot but have sympathy for his Honour. It appears that he inherited the allocation of the proceedings only when another judge, originally allocated, took leave to fulfil an overseas commitment. The inheritance of litigation with such a long history of interlocutory challenges and appeals (and with the prospect of a trial of many months, possibly years ahead) must not have seemed immediately alluring. For many, the slightest legitimate excuse to avoid such a burden - and to let the cup pass - would have been accepted, perhaps with solemn disavowals of distress, but with relief nonetheless.

But Badgery Parker J was conscious of the warning of Mason J in Re JRL: ex parte CJL (1986) 161 CLR 342 at 352. It is as well to repeat that warning here:

"Tt seems that the acceptance by this Court of the test of reasonable apprehension of bias... has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial or unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way... Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."

Mason J's observations have been applied in the Court of Criminal Appeal in R v George, Harris and Hilton (1987) 9 NSWLR 527, 535. They have been applied in this Court. See eg Galea v Galea (1990) 19 NSWLR 263, 278. A party may not, by the vehemence of an assertion of grounds for disqualification, or the angry repetition of such grounds, drive a judge, otherwise assigned to hear a case and not disqualified from doing so, from the fulfilment of his or her duty. Badgery Parker J was therefore right to keep this principle at the forefront of his consideration.

URAYBOS AUSTRALIA PTY LTD v TECTRAN CORPORATION PTY LIMITED [NO 9] (Kirbs P)

His Honour reviewed the authorities. He examined what he took to be the facts which the hypothetical reasonable lay observer would know of the circumstances said to give rise to the necessity of disqualification. Upon that review and the application of the authority of this Court, and of the High Court, his Honour concluded that he was neither obliged, nor authorised, to disqualify himself. Reaching his decision, he said:

"... [think I must assume that the observer would understand that the Legal Aid Review Committee had formed an opinion that Dr Rajski's proposed action against the alleged conspirators was without merit, and that that was my own view in April 1984.

It would, of course, be obvious to the fair minded observer that whatever material was considered by the Legal Aid Review Committee and by me at that time would have been far less comprehensive than that which ultimately was presented to Miles J over 30 days of hearing, the proceedings producing about 900 pages of transcript. Hence he would, in my view, recognise that if the decision of the Legal Aid Review Committee related only to that matter, I as a judge approaching the matter without actual bias would see that decision as supplanting entirely any contrary view to which I and the Legal Aid Committee may have come on the material before us.

Similarly, the fair minded observer would realise that whatever material was considered by the Legal Aid Review Committee and by me at that time would have been far less comprehensive than what is likely to be placed before me if I proceed to the hearing of these interlocutory applications and these actions. Hence he would, in my view, recognise that even if I retained any recollection of the material placed before me and the committee (which he would think unlikely) it would not carry any weight as compared with the evidence to be adduced now."

Abortive challenge to decision: interlocutory orders made Following that conclusion the appellants were involved in the litigation which resulted in the decision of the Court in Rajski v Wood, (above). Meanwhile, on 24 November 1989, the ninth anniversary of the commencement of the 1980 proceedings, Badgery Parker J listed over 50 interlocutory applications before himself. The solicitor for Raybos appeared. But Dr Rajski was not in court. His absence was explained as being the result, allegedly, of mental and emotional exhaustion deposed to by his psychiatrist, Dr Metcalf. Badgery Parker J adjourned the proceedings until 27 November 1989. In the course of doing so he expressed the conclusion that the delays in the litigation had become "outrageous"; that Dr Metcalf had "completely lost his professional objectivity in relation to this patient"; that the application for adjournment was "but another attempt to prevent this litigation from ever coming to a hearing"; and that he was resolved, being assigned to hear the matter, to bring the proceedings to "the earliest possible conclusion".

It was on 27 November 1989 that Badgery Parker J heard argument and gave judgment in the interlocutory proceedings giving rise to an order determining the sequence in which the various actions before the Court would be heard. Before him were the 1980 proceedings brought by Tectran against Raybos. Also listed were the 1985 proceedings brought by Raybos and Dr Rajski against the alleged conspirators. But also listed were "the 1986" proceedings. These amounted to proceedings brought by Tectran against Raybos and Dr Rajski in 1986. They were proceedings which had been commenced by the Tectran interests, but not for some time served. They had been issued against the possibility that Tectran and its associated plaintiffs would not get leave to enlarge the 1980 proceedings.

When they came to light, because they largely duplicated the 1980 proceedings, their further prosecution was later stayed. Badgery Parker J nevertheless added certain parties to the 1986 proceedings. He ordered that the 1980 proceedings be heard before either the 1985 or 1986 proceedings. He ordered that the 1985 and 1986 proceedings be not listed for hearing, before the delivery of judgment in the 1980 proceedings, except by consent of the parties. He made certain further orders to which it is not necessary to refer. In reaching his conclusion that the 1980 proceedings between the appellants and the Tectran interests should be heard separately from the proceedings in conspiracy and for abuse of process (including against the lawyers) Badgery Parker J followed substantially the conclusion reached by Miles J referred to above.

It was this series of interlocutory orders made on 24 and 27 November 1987, which became the foundation for the summons for leave to appeal and (when leave was granted) of this appeal. On the hearing of the appeal, the respondents, and all of them, supported the interlocutory orders made. They resisted, substantially for the reasons given by Badgery Parker J himself, the suggestion that the orders were in any way affected by bias or a reasonable apprehension of bias as that phrase has been elaborated.

Appeal specifies many grounds of alleged disqualification

As I have said, the appellants' principal attack on the orders rested on the contention that they were infected by the disqualification which resulted from the reasonable apprehension of bias which flowed from Badgery Parker J's earlier participation, as counsel, in the Legal Aid Review Committee. But the appellants also supported the attack on those orders on wider grounds. These related to his Honour's conduct of the proceedings after the application for disqualification was first made. In considering those grounds, it is essential to remember the warning given by the Court against allowing a party to bolster an argument for disqualification by provocative conduct after the application is made. See Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 4] (1986) 6 NSWLR 674, 689 and Samuels JA in Rajski v Scitec Corporation Pty Ltd, unreported, Court of Appeal, 16 June 1986 at 12.

The grounds relied upon in this second category of attack on Badgery Parker J's orders may be catalogued as follows:

(i) His Honour's access to documents provided by the Legal Aid Commission of New South Wales, other than the minutes to which the appellants consented to access;

(ii) His refusal of a three month adjournment sought by the solicitor for Raybos on 22 November 1989;

(iii)His refusal to accept the evidence of Dr Metcalf, the psychiatrist;

(iv) His allegedly unfounded and derogatory remarks about Dr Metcalf;

(v) His insistence that the proceedings on 24 November 1989 continue despite the absence of Dr Rajski that day in other proceedings before the Court of Appeal;

(vi) His action in proceeding with an application to the amendment of Tectran's statement of claim in the 1980 proceedings, notwithstanding Tectran's failure to provide the appellants with copy of the proposed amendment;

(vii)His consideration of an application by Tectran further to amend the statement of claim in the 1980 proceedings whilst there was an application before the Court to strike out those proceedings as an abuse of process;

URAYBOS AUSTRALIA PTY LTD v TECTRAN CORPORATION PTY LIMITED [NO 9] (Kirby P)

(viii)Various other complaints concerning the amendment of the 1980 proceedings and arising from the grant of leave to Tectran to file a further amended statement of claim in them;

(ix) His decision relating to the order of the hearing of the proceedings in the absence of the appellants or the solicitor for Raybos, whereby he allegedly denied them natural justice;

(x) His determination of the order of proceedings without consideration of evidence;

(xi) His decision that the 1985 proceedings be not heard until the 1980 proceedings were concluded;

(xii)The failure of the respondents to disclose to his Honour material facts relevant to the order of proceedings; and

(xiii)His display of bias against the appellants or conduct which, in all the circumstances, would cause the parties or members of the public to entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the matters before him.

Only two grounds require consideration by the Court

Although the Court had the benefit of extensive oral and written arguments on all of the above grounds (which I have stated with brevity at the risk of the sacrifice of some accuracy) in the approach which I take to the appeal it is unnecessary to consider any but the first of them. Many of them are, on their face, not grounds of appeal which would cause an appellate court to disturb interlocutory orders such as those now under challenge. Many become irrelevant when the circumstances (eg of the absence of the parties or their representative) are examined closely in the transcript. Others, even if established to show error, would not occasion the disturbance of the interlocutory orders which Badgery Parker J made. Still others are just misconceived or unwarranted. Indeed, it is appropriate for me to say that, save for the two considerations which I regard as determining this appeal, the conduct of Badgery Parker J in the proceedings before him was exemplary. Save for those two matters I would not hesitate to allow the proceedings to continue before his Honour with an expression of relief and appreciation that the principal litigation between the parties would at last come on for hearing before a judge resolved to bring them to conclusion without delay. In particular, despite repeated attacks and provocation on the part of Dr Rajski, I consider that Badgery Parker J displayed a temperate attitude in dealing with the appellants, with a proper mixture of fairness and decisiveness.

Although hinted in the arguments of Dr Rajski (not those put on behalf of Raybos) I would reject the suggestion that it had been shown that his Honour bore actual bias towards the appellants. This allegation was not advanced before his Honour. The record provides no basis whatever for that charge. I can therefore put all of these considerations relied on by the appellants to one side and turn directly to the two matters which in my opinion decide the matter. These are:

(a) The reasonable apprehension of bias which arises from his Honour's earlier involvement in the decision of the Legal Aid Review Committee; and

(b) The reinforcement of (a) provided by his Honour's later access to undisclosed documents in the file of the Legal Aid Commission concerning the appellants.

There have been so many recent decisions of the High Court of Australia and of this Court concerning the principles to be applied in cases of imputed judicial bias that I refrain from adding unnecessarily to them. Indeed, there was very little

oral or written argument before the Court on the principles applicable to this case. In part, that may be attributable to the fact that the parties to the litigation are by now no strangers to the principles, having invoked or explored them in earlier proceedings concerning other judicial officers. See eg Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 4] (1986) 6 NSWLR 272. In part, it may be a tribute (perhaps unconscious) to the pains which Badgery Parker J had taken to collect the authorities and to cite from them in his substantial reasons for concluding that he was not entitled or obliged to accede to the appellants' request for his disqualification. In part, it may be out of recognition of the fact that curial pronouncements on the matter, being expressed in words of necessary generality, can only lead the mind of the decision maker to the factors to be weighed in deciding whether or not disqualification is appropriate. As the authorities show, those considerations usually tug the mind in opposite directions. On the one hand, there are the repeated assertions of the courts that:

(a) Judges by their training and experience are able to bring a detached mind to the task in hand: see Re The Queen and his Honour Judge Leckie: ex parte Felman (1977) 52 ALJR 155, 160;

(b) Judges should not too readily accede to applications for disqualification whereby parties may effectively influence the choice of a judge in their cause: Re JRL (above) at 352;

(c) Judges should resist being driven from their courts by the conduct or assertion of parties: Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 4] (1986) 6 NSWLR 674, 689;

(d) Judges should not be disqualified because of the vigour with which they conduct proceedings, some degree of judicial intervention being necessary for the fair disclosure of their provisional views: Galea v Galea (1988) 19 NSWLR 268, 278f; Re Keely J: Ex parte Ansett Transport Industries (Operations) Pty Ltd (1990) 64 ALJR 495; and

(e) Judges should perform the duties of their office which, of their nature, will often be painful and unrewarding. They should do so with courage and decisiveness, avoiding the relinquishment of such duties which will necessarily then fall to another judicial officer for whom the task may be no more congenial.

On the other hand, a series of recent decisions of the High Court of Australia has stressed the very high standards of manifest neutrality and impartiality established by that Court for observance by every judicial officer in the courts of Australia. Excepting the timely words of caution of Mason J in Re JRL (above), the common thread which has run through the foregoing decisions has reflected the high importance attached by the High Court to the manifest observance of judicial impartiality in this country. This can be seen, for example, in R v Watson: ex parte Armstrong (1976) 136 CLR 248; Livesey v New South Wales Bar Association (1983) 151 CLR 288; Re JRL: ex parte CJL (1986) 161 CLR 342; Vakauta v Kelly (1989) 63 ALJR 610 and Grassby v The Queen (1989) 168 CLR 1; Laws v Australian Broadcasting Tribunal (1990) 64 ALJR 412, 419.

Vakauta is the most recent decision in which the pertinent principles were discussed at length and in a case where the orders of this Court were set aside. In this Court, by majority (McHugh and Clarke JJA; Mahoney JA dissenting) relief on the ground of the reasonable apprehension of bias was refused. See Vakauta v Kelly (1988) 13 NSWLR 502. Vakauta is therefore instructive in a way Grassby, kaws and Keely are not. Cf (1988) 15 NSWLR 109.

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In order to ensure faithful application by this Court of the standard established by the High Court of Australia, it is therefore specially useful to attend to Vakauta. The leading judgment was that of Toohey J. Brennan, Deane and Gaudron JJ agreed with his Honour's reasons, subject to certain additional observations of their own. Those observations stressed (at 611) that confidence of a judge in his or her own integrity: "can sometimes lead a judge to fail to appreciate that particular comments made in the course of a trial may wrongly convey to one or other of the parties to the litigation or to a lay observer an impression of bias."

Dawson J likewise joined in the unanimous order of the High Court in Vakauta.

But it is what Toohey J said that gives the best guidance for the approach to be taken to the critical question in this case. That question relates, as it seems to me, to the level of sophistication and knowledge which should be attributed to the hypothetical reasonable or fair minded observer in making the decision whether the judge should stand aside. In that regard, Toohey J referred (at 617), with what I take to be approval, to my observations, in dissent, in S and M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at 375-6. I was there commenting on the dialogue of citizens which Priestley and Clarke JIA used, in their imaginative joint judgment, to explain how they had come to an opposite conclusion in the facts of that case. I expressed the view that their Honours had imputed to the citizens:

"[A] sophistication and knowledge about the law and its ways which I believe to be quite atypical of the general community. The dialogue, with every respect, strikes me as more reminiscent of the hushed tones and cloistered atmosphere of a Bar common room or judicial luncheon table than the robust discussions between ordinary reasonable citizens on the Emu Plains omnibus."

What is at risk here is the loss of confidence of ordinary members of the community in the impartial and neutral determination of cases by the judiciary. Such a loss of confidence is unlikely to occur from a single case. But if it arose from a series of cases which came to public notice, it could do immeasurable harm to the administration of justice. Once lost, confidence in the impartiality of the judiciary would take much time to rebuild. A thousand decisions faithfully and impartially made by judges could be undermined in public acceptance by a reasonable, even though misguided, belief of partiality on the part of a particular judge in a particular case or the conclusion that in that case "things don't look right". It is such a reflection on the purpose of this body of law which dictates the stringent approach that is to be taken to it.

With every respect to Badgery Parker J, I consider that a number of the matters of detail which he ascribes in his reasons to the ordinary reasonable lay observer, fall into the same error as the knowledge attributed to the citizen in the imaginary conversation in S and M Motors (at 379-380 of the report). Reasonable citizens are not lawyers. Nor are they taken to be entirely ignorant of the legal system or unwilling to make at least a few superficial enquiries about the particular case. They will have neither the time nor the inclination to explore the facts at length. Their approach will involve the wielding of a broad brush. Sadly, in current social circumstances in Australia, the reasonable lay observer may even be a little cynical about our institutions, however undeserved that may be, for the judiciary faithfully performing its duties day by busy day. Therefore, when, in the present case, the critical decision must be made, it seems to me that it is to be made by reference to an impressionistic, and to some extent superficial, opinion based

upon a consideration of the broad features of the allegation made. It is not made upon a detailed exploration of and lengthy rumination about the legal or other merits of it.

Approached in this way, I believe the answer which would be given by the hypothetical reasonable lay observer to the question whether Badgery Parker J should disqualify himself is in the affirmative. It would be enough for the observer to know the general nature of the litigation between the parties and the controversy which has previously surrounded the relationship between the 1980 and 1985 proceedings. It has always been the wish of the appellant to have the 1985 proceedings heard at the same time as the 1980 proceedings. To decide that question, and to determine the order of the hearing of the proceedings (as Badgery Parker J did in one of the orders under appeal) it was necessary for his Honour to have formed an opinion (however provisional) about the nature and merits of the 1985 proceedings and their relevance to the 1980 proceedings commenced by Tectran. Yet the merits of those proceedings was one of the issues, if not the principal issue, which came before the Legal Aid Review Committee in 1984. As Badgery Parker J candidly acknowledged, it can be inferred that, in that, committee he formed a view adverse to the viability and/or merits of those proceedings. Indeed I would infer that it was he, to whom the matter was referred for report and who recommended to the committee against the grant of legal aid to permit the 1985 proceedings to be launched. There has been (as his Honour observes) the passage of many years. There has been the intervention of a detailed consideration of the matter by Miles J on much more substantial material than was before the committee. Furthermore, the appointment of his Honour to judicial office has occurred. Nevertheless the fact of the earlier involvement remained ineradicable.

To make the decision reached by the committee required a decision which was based on material confidential to the appellants. I would be willing to infer that such material included the advices of their counsel and solicitor disclosing aspects of their case which, in the ordinary course, would certainly not be received by the judge deciding it. It is true, as his Honour said when the matter was first raised, that the passage of time and the intervention of many cases has produced the beneficial effect of dimming the memory of such matters. So it was here. But that is not an end to the question before the Court. That question involves appearances, impressionistically determined. Cf R v Sussex Justices: ex parte McCarthy [1924] 1 KB 256, 259; Re W D Latimer and Co Ltd et al v Attorney General for Ontario (1973) 43 DLR (3d) 58, 69. If his Honour were to determine the case adversely to the appellants, might not the superficial observer in the community believe that he had been influenced either by knowledge or attitudes retained, perhaps unconsciously, from the earlier disclosures or by an unconscious desire to uphold the correctness of his original decision? To avoid the risk that such questions might be asked (there being no necessity that his Honour should proceed to determine the matters) I consider that the reasonable lay observer would conclude that a reasonable apprehension of bias might arise. So concluding, this Court must require that the matter be tried before another judge.

It is worth noting that the Rules of the New South Wales Bar Association (February 1980) lay down in some detail, requirements which govern the duties of a barrister to refuse to accept a brief, or to appear before a court, in certain

URAYBOS AUSTRALIA PTY LTD v TECTRAN CORPORATION PTY LIMITED [NO 9] (Kirby P)

circumstances. The relevant rule (rule B2), last revised in 1983, includes amongst the circumstances where a refusal is authorised:

"(e) Where he has already advised or drawn pleadings in the matter for another party to the proceedings, except with the latter's consent;

(f) Where he has already discussed in any detail, even on an informal basis, with another party to the proceedings the facts out of which the proceedings arise, except with the latter's consent;

(g) Where he has some special knowledge of the other party's case by reason of his participation in some other litigation."

The respondents argued that a different rule applies to judicial officers whose "training, tradition and oath or affirmation required him to discard the irrelevant, the immaterial and the prejudicial" so that "a conclusion that there is a reasonable apprehension that he is biased should not be drawn lightly". See McHugh JA in Vakauta approved by Toohey J, ibid 617. However, in my opinion the rules governing the judiciary are even more stringent than those governing a barrister. This is because judicial officers are performing public duties. They are part of the judicial branch of government. They are not elected. They must draw their legitimacy principally from the manifest integrity and lawfulness of what they do. If a barrister is authorised, and possibly obliged, to refuse a brief in circumstances such as an earlier involvement in consideration of the matter in a legal aid review, I consider that it is even more imperative that a judge, who will determine the rights of parties, should be disqualified.

None of the foregoing suggests for a moment that Badgery Parker J would, if he proceeded to hear the present proceedings, have any bias towards the appellants on the basis of his fleeting involvement in their affairs as long ago at 1984. Nor does it cast doubt on the reasons which led his Honour to his conclusion about his entitlement and duty to hear and determine the proceedings. Because of the generality of the words in which the test is formulated, and the impressionistic nature of the decision ultimately to be made, I acknowledge that upon this and like matters minds may differ. So it was shown in S and M Motors and in Vakauta in this Court. But the instruction which I derive from the unanimous opinions of the High Court in Vakauta and Grassby is that the standard to be applied where the test is invoked remains a stringent one. Nothing in Laws diminishes that standard. It is so because of the high public interest in safeguarding the reputation of the judiciary. By that stringent standard, so applied, I believe that the appellants are entitled to the relief they seek.

Additional material reinforces need for disqualification This conclusion allows me to deal very briefly with the other ground relied on by the appellants which serves only to reinforce the decision just expressed. This, it will be recalled, is the fact that his Honour had access not only to the minutes of the Legal Aid Review Committee (relevant to establish that he had indeed taken part in the committee's deliberations concerning the litigation) but also to the file which was before that committee.

In the transcript of the proceedings before his Honour on 15 November 1989, the following exchanges take place. At the beginning of the proceedings his Honour said: "Gentlemen, since we adjourned I have had the opportunity of examining some material made available to me by the Legal Aid Commission, namely the minutes of a meeting of the Legal Aid Review Committee on 11 April 1984 at which I was present and also the file which was before the committee on the occasion relating to the application by Dr Rajski."

Badgery Parker J then proceeded to put on the record a number of matters relevant to the background of the case and his limited involvement in it. This record contained the following observations:

"On Monday last, with the concurrence of the parties, the matter was adjourned until 2 p.m. so that I could obtain and refer to the minutes of relevant meetings. Minutes of the meetings which I attended between | February 1984, the first of such meetings, and 2 May 1984, the last of such meetings, were available to me. There is no reference to Dr Rajski in any meeting prior to 11 April 1984 and no reference to him in any meeting after [that] date up to and including 2 May 1984. The minutes of 11 April 1984 show that one of the matters discussed dealt with by the Committee at that meeting was an appeal brought by Dr Rajski to that committee. I refrain, at this stage, from saying anything further about what the minutes disclose as to what was resolved. Subsequently I have had access to the file which was before the committee for discussion on that occasion. Perusal of it does not stimulate in my memory any recollection of the circumstances other than that the matter of Dr Rajski's application was discussed. It does, however, confirm to my satisfaction that I was one of the four members of the committee by whom this particular application was dealt with... I am satisfied from a perusal of the material that in relation to the appeal of Dr Rajski, it was to myself that the bulk of the material came and it was I who initiated the discussion of the matter in the committee meeting. I have no recollection, nor is there anything in the material which would enable me to say what view I personally formed as to the way in which the appeal should be dealt with. I find, on the probabilities, if it were a matter that I had to determine, that the ultimate decision of the committee probably accords with whatever recommendation that I made but I do not know that that is in fact the case."

Following this revelation, his Honour invited submissions from the parties. In the course of Dr Rajski's submission, he asserted that, in the Legal Aid Review Committee, his Honour (as counsel) had received "all privileged documents". To his Honour's invitation that he should suppose that all that his Honour had received was the pleading, Dr Rajski said: "That is not the case. I can tell you without waiving [the privilege of non-disclosure of matters revealed to the Legal Aid Commission] that is not the case. Your Honour didn't get only the pleadings. That I can tell you."

The hypothetical question was pressed by his Honour. Dr Rajski refused to answer it for, according to him, it was "not the case".

Later, the exchanges turned to the file of material which his Honour had "examined" and "perused". These words suggest a fairly close examination of the file. Dr Rajski asked to have access to the file which his Honour had received. There was no objection on the part of the respondents. The following exchanges then occurred: "I show you first of all the file of documents. I draw your attention to the last paragraph of the second page and I will tell you that that appears to be a reference to the draft cross claim which was exhibit CX before Mr Justice Miles. Page 2 of the bundle I have just handed you. The last paragraph appears to be a reference to the statement of cross claim which was dealt with by Mr Justice Niles. As well as that I have the minutes of the meeting and I can't show you anything except the minute of our own meeting because of the confidentiality that applies to those [minutes]. You're aware of the contents of the minute no doubt anyhow because it would have been disclosed to you... If you contend that the Legal Aid Review Committee had before it more than that bundle of documents that I've given you and the draft cross claim then it seems to me that

URAYBOS AUSTRALIA PTY LTD v TECTRAN CORPORATION PTY LIMITED [NO 9] (Kirlbb$ P)

you should show me what extra material was before the committee. It may be you need time to read through that. I will tell you that as far as I can see from a reading of it it does not indicate that any further factual material than is there."

There was then a short adjournment during which, presumably, Dr Rajski read the file handed to him by his Honour. The transcript proceeds:

HIS HONOUR: No I don't think so. Do you say there was more material before the Legal Aid Committee than is contained in that bundle?

DR RAJSKI: Yes it was. Mr Johnson [solicitor for Raybos] drew my attention to the fundamental question which Your Honour asked... Your Honour's question was whether there was more information before the Legal Aid Review Committee that is on public records which have been before Mr Justice Miles? The answer is yes. It was much more and was more and much more against my case.

HIS HONOUR: What was the nature of it? Don't tell me the content. What was the nature of the extra material? Are you suggesting there were representations from the parties who were opposed to you in the litigation?

DR RAJSKI: I mean confidential privileged information in nature of observations and submission of my former lawyers and advisers of my former counsels. And representation of my former solicitors and counsel's advisers...

HIS HONOUR: You are referring to correspondence in that bundle?

DR RAJSKI: And also extremely prejudicial material in relation to, which could come to credit of mine in the proceedings in giving evidence and in relation to my attitudes and my relation of my opponent. Or my view of my opponents presented by one of the legal firms. I mean extremely prejudicial material. In fact I was not able to get for long long long time this information and only by chance I got it after the appeal which I didn't realise Your Honour as member of the committee had much more in fact than appeal itself contained. I don't want to describe. Because by description, I don't want to identify all these documents."

As appears from other material before the Court, exhibit CX which was before Miles J was a proposed amended cross claim containing 124 paragraphs and consisting of 165 pages. It is described in Miles J's judgment of 5 June 1985. As described, it contained very lengthy and complex allegations detailing the appellants' case against some at least of the respondents.

It is true, as the respondents' argue, that the foregoing passage of transcript does not reveal precisely what was in the file of the Legal Aid Commission which his Honour had "examined" and "perused". The transcript contained argument, not sworn evidence. Nor did the statements such as those of Dr Rajski himself (who saw that file) disclose the extent, if at all, that he was willing to waive the privilege afforded him under the Legal Aid Commission Act in respect of such materials. But it is equally true that his earlier consent to access by Badgery Parker J to the Legal Aid Commission had been limited, in terms, to access to the minutes of the meeting of the Legal Aid Review Committee. This was designed solely to remove the doubts which Badgery Parker J had initially expressed as to whether he had indeed been involved in any way in a determination concerning the parties. Unfortunately, when the legal aid materials were received by his Honour, they were not limited to the minutes, with their necessarily attenuated record. They extended to the file. The content of that file is not entirely clear from the evidence. But it would be at least open to the reasonable lay observer, looking

at what occurred in court in the passages just cited, to conclude that the file contained prejudicial material amounting to the advice and observations of his former lawyers presenting opinions relevant to the determination of whether or not legal aid should be given for what became the 1985 proceedings. If this conclusion were open to the reasonable lay observer then, whatever the appearances arising from the 1984 access to confidential material, the problem has now become compounded by his Honour's access to such material in 1989, without the consent of the appellants.

What happened appears to me to have been an irregularity. The strict rules governing the receipt by a judge of private communications relating to a case have been restated recently by the High Court. See eg Gibbs CJ in Re JRL: Ex parte CJL (1986) 161 CLR 342, 347. Normally in contentious proceedings, a judge should receive only matter tendered in open court. Then a party normally has the opportunity to inspect that matter and to make objections and submissions and to invite rulings on its reception. In the present instance, the file of the Legal Aid Commission appears to have been forwarded to his Honour pursuant to the request for the minutes only. The protection of the integrity of material supplied to the Legal Aid Commission is assured by statute. Generally speaking, that provision attracts to such materials the protections of legal professional privilege. See Legal Aid Commission Act 1978, s25. It is specially unfortunate in the present case that the larger file was produced.

This Court has no way of discovering precisely what was in that file. The assertion of Dr Rajski in the transcript is not, strictly speaking, evidence. But it is an assertion and it is consistent with the contention that the file contained prejudicial and confidential material. That assertion was not rejected by his Honour. In such circumstances, a reasonable lay observer, watching these proceedings unfold with only passing interest in them would, I believe, feel that the disquiet which arose from his Honour's earlier involvement in the Legal Aid Review Committee was reinforced by this further unfortunate development.

Concluding remarks, interlocutory and future proceedings It is not necessary in this case to embark upon an exploration of the evidence which may properly be received or information obtained by a judicial officer to whom notice is given of an application for disqualification by reason of past involvement with a case or with a party. Nor is it appropriate to draw, in the proceedings, a distinction between the interlocutory orders which Badgery Parker J made and the conduct of the principal litigation between the parties. It is true that a judge disqualified from hearing substantive proceedings may, nonetheless, be perfectly entitled to make some interlocutory orders. The judge may do so out of necessity or because such orders do not affect the outcome of the litigation and are procedural only. Cf Laws (above) 423f. That distinction should not be drawn in the present case. First, the respondents did not wish to draw it. It is their desire to have the principal litigation heard without delay. Success on that argument would merely delay consideration of the substantive point. Secondly, Badgery Parker J made it clear that he would hear "these matters". He defined them to be not only the interlocutory proceedings but the trial at least of the 1980 proceedings. Thirdly, his Honour's interlocutory decisions related specifically to the order of the hearing of the proceedings. On one view, such decisions required him to bring his judicial mind to bear upon the viability and merits of the 1985 proceedings: precisely those upon which he may, by inference, be taken to have expressed a

UAAYBOS AUSTRALIA PTY LTD v TECTRAN CORPORATION PTY LIMITED [NO (Mahoney JA)

view to the Legal Aid Review Committee unfavourable to the appellants. Accordingly, it is both proper and necessary to deal in this appeal with the substance of the appellants' arguments.

Upon those arguments, and for the reasons now stated, I would hold that the appellants are entitled to succeed. I depart this appeal with three concluding observations. First, the Court had much assistance from the respondents. They were placed in the understandable position of seeking to uphold his Honour's orders out of their desire to secure an early hearing. But because they did so, and did not take a neutral stance, the normal order for costs must follow. Secondly, I have no doubt that, far from representing a disappointment to Badgery Parker J, the order which I propose will be accepted by his Honour as a release from what he otherwise took to be a duty of his office. Thirdly, I entirely commend his Honour's approach that the principal proceedings between the parties should be brought to an early hearing so that, wherever possible, interlocutory skirmishes which stand between the parties and the conclusion of those proceedings should be postponed. The duty of conducting those proceedings, and of determining the steps interlocutory to them, will now fall to another judge. But one without the prior and later contact with the legal aid aspects of the subject matter of the proceedings which necessitates the disqualification of Badgery Parker J.

Set aside the orders of Badgery Parker J made on 24 November 1989, 27 November 1989 and 5 December 1989;

Return the proceedings and all of them to the Common Law Division for hearing;

Order the respondents to pay the costs of the appeal and to have, in respect thereof, if so qualified, a certificate under the Suitors' Fund Act 1951;

Order that the costs at first instance up to and including 21 November 1989 be costs in the proceedings so returned; and

Order that the costs of the proceedings before Badgery Parker J on 24, 27 and 29 November 1989 and 5 December 1989 be the costs of Raybos Australia Pty Ltd and L Rajski in such proceedings.

Mahoney JA This cases raises important issues in relation to what a judge should do when he is asked not to sit in an application or a trial.

The facts have been detailed at length in the judgments of Kirby P and Priestley JA which I have had the advantage of reading and their Honours have indicated the matters of principle by reference to which the matter is to be determined. I am therefore able to go directly to what, in my opinion, is the essential issue in the proceeding. As I am of a view different from that adopted by Kirby P and Priestley JA I shall state my conclusions briefly.

Badgery Parker J was dealing with interlocutory aspects of three proceedings before him. He was asked by, as I shall describe them, the Raybos interests not to deal with them. It was said originally that this was because of apparent bias; that was, I think, later broadened to actual bias.

The learned judge heard the submissions of the parties at length and he concluded that he should deal with the proceedings. He dealt with them and made interlocutory orders relating to the order in which the trials of the three proceedings should be held.

The Raybos interests have appealed to this Court against his Honour's orders on the ground that his Honour should not have heard the proceedings.

A number of reasons have been urged for the appellants why his Honour should not have dealt with the proceedings. These are reviewed in the judgments of Kirby P and Priestley JA. With one exception, I do not differ from their Honours in their conclusions or the reasons given for them. I differ only in my conclusion that the fact that his Honour, in some way in April 1984, participated in a proceeding in the Legal Aid Review Committee concerning the matters referred to prevents the judge from doing what he did.

Before dealing with the nub of that matter, it is proper to refer to the nature of the proceeding as it was before his Honour. The matters were before his Honour, as I understand, for the purpose of his giving directions as to, inter alia, the order in which the trials of the three proceedings were to take place. It might have been thought obvious that the 1980 proceeding should have been heard first and apart from the 1985 and 1986 proceeding. At least, there was a strong and clear case that this should be so. And this had been the view of judges who had previously dealt with the litigation. The appellants desired that the 1980 proceeding be heard with or after the 1985 proceeding and perhaps the 1986 proceeding.

If the only question had been whether the judge, having participated in the Legal Aid Review Committee proceeding, should deal with that interlocutory matter and no more, I would, with respect, have had no doubt. The issues involved in that interlocutory decision as to the order of the trials could not bring into question any view the judge might have as to the merits or lack of merits of the various proceedings. At least, there was nothing in the material which, in my opinion, would so suggest.

However, it was, I understand, also contemplated that the learned judge would preside at the trial of at least the first proceeding. No order was made to that effect but that appears to have been the assumption and I shall adopt it.

I come then to the nub of the present appeal. The objection to his Honour dealing with the proceedings has relied on bias. The difference between bias and prejudice has been referred to in other cases. Bias ordinarily or primarily involves animus against a party; prejudice involves rather that the issue to be determined has been prejudged, whether because of animus or not. However this distinction be phrased, it should be said that there is no evidence that the learned judge had any such bias for or against the parties. The issue can be therefore only whether, because of what he did, there is prejudice in the sense of prejudgment.

In order to determine whether the learned judge, in any relevant sense, prejudged the issues involved in these proceedings it is necessary that it appear what he did in the Legal Aid Review Committee. These matters have been discussed in the judgments of my brethren.

If a judge is to be disqualified on the ground of prejudice, actual or ostensible, it is important that it appear with appropriate clarity that he has prejudged the matter and why. This is so particularly where, as in this case, the learned judge has considered carefully his position in relation to the matter and has concluded that there has been no prejudgment.

If it be clear that a judge has, as a barrister, examined the issue to be tried or one which is in substance that issue, and has formed a conclusion in respect of it, then prima facie he may be said to have prejudged the issue and to be in the relevant sense prejudiced in respect of it. But that, in my respectful opinion, has not been shown in the present case. It does not appear with appropriate clearness what originally was done in the Legal Aid Review Committee. At the highest, it appears that (I put the matter summarily) some application for legal aid was made in respect of a proceeding between the parties which may have been in some way

UAAYBOS AUSTRALIA PTY LTD v TECTRAN CORPORATION PTY LIMITED [NO &] (Priestley JA)

concerned with their commercial disputes. The application made for legal aid, the review papers, and what in particular was the judge's then conclusion have not been established in this proceeding. Reference was made in argument to the fact that the learned judge at, as I would infer, the invitation of the parties, examined the file. Because of the attitude taken for the appellants, the contents of that file are not in evidence before this Court: in substance they exercised their right not to have the contents of the file in evidence. The court therefore does not know what his Honour read in that regard. The court does know that his Honour, having read what he did, yet concluded that there was no objection to his determining the matters before him.

It is, I think, agreed by the court that, if a judge is to be disqualified from sitting, it must be because of matters of substance. In my respectful opinion, it does not appear that his Honour was wrong in thinking that there were not such.

I am conscious that a judge should withdraw from a case if there is either actual prejudice or, as it has been described, ostensible prejudice. The argument here has been essentially concerning ostensible prejudice.

The issue becomes therefore whether, the facts being as I have indicated, the reasonable person by whom the matter is to be tested would have the suspicion of prejudice. There has been consideration in the cases of the facts which, for the purpose of testing the matter, such a person is to be taken to know. In the present case, he would, in my opinion, be taken to know that the judge, when a barrister, participated in a proceeding of the Committee upon a matter not now defined which resulted in the refusal of legal aid to the interests of the appellants. He would know that the judge did not recall anything relevantly about the matter but, having had access to a file (the contents of which the appellants objected to being disclosed), concluded that there could not be the appearance of prejudice. Knowing such facts, such a person would not, in my opinion, have the necessary apprehension or suspicion of prejudice.

In my opinion the appeal should be dismissed with costs.

Priestley JA The detailed facts of this appeal are stated by Kirby P. I agree with his opinion that it is open, and in the circumstances sensible, for this court to consider whether merely interlocutory orders made by Badgery Parker J should be set aside because made by a judge in regard to whom a reasonable observer might apprehend bias.

The conclusion I have reached on this case is based upon only the salient features of Badgery Parker J's involvement, before he became a judge, with proceedings in which the appellants were parties. These features include the facts that in 1984, Mr Badgery Parker QC was a member of a Legal Aid Review Committee; that the Committee considered an application by the appellants for legal aid to bring proceedings against solicitors who had acted for the plaintiff in the original proceedings against the appellants; and that the application was refused by the Committee. The salient features also include the following three inferences I draw from the materials before the court. (1) Mr Badgery Parker QC formed the view in 1984 that the appellants' case was without merit, (2) the appellants' case had been put before the Committee with such fullness as the appellants thought would best serve their prospects of obtaining legal aid, and (3) that case was, to a significant extent, part of the proceedings with which Badgery Parker J, in 1989, was dealing on an interlocutory basis.

Before applying the relevant disqualification test to these salient matters, there are some related considerations to be mentioned. Kirby P has set out parts of Rule B2 of the New South Wales Bar Association's Bar Rules. These embody the long

standing practices that a barrister will not, in general, accept a brief for a person when he or she has acted for another party in the same matter, or discussed such a party's case with someone acting for that party, or obtained some special knowledge of such a party's case because of participation in other litigation. I qualify my statement of the practice by the words "in general" because sometimes the barrister's earlier contact with the case may be so slight as to cause no possibility of concern, or particular circumstances may be such that the other party has no objection to the barrister's accepting the brief. The practice is deeply embedded in the accepted ethics of barristers and means that no barrister may accept a brief from party B if he or she has previously read the papers of opposing party A in the same matter. A barrister who did such a thing would meet with general reprobation from other barristers.

What ideas underlie the practice I have described? I get some help in dealing with this question by considering standards which, although laid down not for Australian advocates but for United States judges, are apparently of a similar kind. These are the standards set out in the Code of Judicial Conduct promulgated by the American Bar Association. Canon 3 of this Code says "A Judge should perform the duties of his office impartially and dilligently". Four standards are said to apply in performance of Canon 3. Standard A deals with Adjudicative Responsibilities, B with Administrative Responsibilities and C and D deal with Disqualification. Standard C(1) says:

"(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:

(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(b) he served as a lawyer in the matter in controversy, or a lawyer with whom he previously practised law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

Commentary: A lawyer in a governmental agency does not necessarily have an association with other lawyers employed by that agency within the meaning of this subsection; a judge formerly employed by a governmental agency, however, should disqualify himself in a proceeding if his impartiality might reasonably be questioned because of such association.

(c) he knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) is a party to the proceeding, or an officer, director, or trustee of a party;

Commentary: The fact that a lawyer in a proceeding is affiliated with a law firm with which a lawyer relative of the judge is affiliated does not of itself disqualify the judge. Under appropriate circumstances, the fact that 'his impartiality might reasonably be questioned' under Canon 3C(1), or that the lawyer relative is known by the judge to have an interest in the law firm that could be 'substantially affected by the outcome of the proceeding' under Canon 3C(1)(d)Gii) may require his disqualification.

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(iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

(iv) is to the judge's knowledge likely to be a material witness in the proceeding;"

The Canon's usefulness for present purposes is that it provides a number of examples of circumstances accepted in the United States as justifying a reasonable questioning of impartiality. These include both the situation where a judge previously, as a lawyer, served in the litigation now before the court, and that where the judge previously practised law with a lawyer in that litigation.

There seems to me to be a common assumption underlying the practice of New South Wales barristers and the American Canon 3C(1). The barristers' rule must be based, at least in part, on an idea to the effect that once having been put in possession of one party's side of a case, whether wholly or partly and whether by reference to material that would be admissible as evidence in litigation or not, a barrister would be seen by that party as being likely to be in possession of information which could not be put out of mind in dealing with the case, and which his or her opponent should not have. Although no doubt some individuals could accept the contention, if proffered by the barrister, that he or she had either forgotten or would never make use of such information for purposes of the case, the rule must accept the idea, in my opinion rightly, that the generality of persons would never fully believe that, no matter how earnestly the barrister tried, he or she would be able to avoid using to some degree, and in some way, perhaps without realising it, the information the barrister should not have. The barristers' rule must in my opinion result from a recognition of at least three things: (1) that such a proportion of their clients would form a belief of the kind described that for the sake of general confidence situations of that kind should be avoided, (2) the real possibility that at least in some cases such a belief would be psychologically sound and (3) that client party A is justified in believing it to be unfair that a barrister for opposing party B has or has had knowledge of facts or materials transmitted directly or indirectly to the barrister solely for client party A's purposes.

Similarly, it seems to me that the American Canon 3C(1) must rest on an acceptance of ideas including the following: a reasonable observer seeing a judge hearing a case in which the judge or judge's partner had been concerned before the judge went on the bench would think (1) it was probable that the judge remembered at least something of the former client's case, (2) that it was impossible to be sure the judge could put completely out of mind that prior knowledge and (3) that it would be unfair to the other party to the proceedings (and in some circumstances to the former client) for that judge to hear the case.

Acceptance of the assumptions underlying both the barristers' rule and the American Canon involves acceptance of ideas concerning the psychology of barristers and judges which may not be correct as universal propositions. One of the reasons why they are (and ought to be) treated as sound seems to me to be that many ordinary citizens in fact believe them. In the case of disqualification of judges under the American Canon, the basis for disqualification is described as being reasonable questioning of impartiality. This seems to me to correspond in substance with what in Australia is called reasonable apprehension of bias. When this connection is made it is possible to see that a second reason for accepting the ideas I have listed, at least as they concern judges, although those ideas might not be accurate in all cases, is, to use Lord Denning's expression of it: "Justice must be rooted in confidence and confidence is destroyed when right minded people go

away thinking: 'The judge was biased"': see Metropolitan Properties v Lannon [1969] 1 QB 577 at 599, adopted in R v Batth, Court of Appeal (Eng) Criminal Division, Lord Lane, Roch and Judge JJ, 9/4/90. These considerations lead me to think that the three ideas I mentioned in the previous paragraph as underlying the American Canon 3C(1) are equally applicable in Australia. That is, a reasonable observer seeing a recently appointed judge, who had been a barrister before appointment, hearing a case in which the judge had been concerned before appointment, would think the same three things previously listed.

I now return to consider whether the present case should be held to come within the rule upon which the appellants rely in the present case, that in Australia a judge is disqualified when the public might entertain a reasonable apprehension that the judge might not bring an unprejudiced and impartial mind to the resolution of the issues in the proceedings before him. (This statement of the rule is taken from the joint reasons of Mason, Murphy, Brennan, Deane and Dawson JJ in Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294). The rule is not based on the idea that the reasonable apprehension is necessarily right, but on the view that if the public might entertain that apprehension, then, whether that apprehension is right or wrong, so long as it is reasonable, it is necessary, for the sake of public confidence in the administration of justice, that the judge not sit in the case.

It is often difficult to form a view, in apprehended bias cases, of what the public might reasonably apprehend. The difficulty exists both for the judge asked to disqualify him or herself and for judges later considering the matter on appeal. The difficulty is particularly acute for the judge to whom the request is directed: the matter concerns the judge personally; criticism of the judge is sometimes involved in the application; it is natural and easy to grant the request, but on the other hand the judge is frequently obliged not to grant it unless the test for reasonable apprehension of bias is made out; and there appear to be many borderline cases where reasonable minds differ.

In the present case, the judge's involvement with the matter before he became a judge is not on all fours with that of a judge previously retained by a party in regard to a significant aspect of the proceedings. However, it seems to me to be sufficiently similar to bring the same considerations into play as if he had. Applying those considerations to what I earlier said I took to be the salient features of this case, my opinion is that the public might reasonably apprehend that Badgery Parker J might not bring an unprejudiced and impartial mind to the resolution of the issues before him. Even if that observer were to make further enquiries of the kind postulated by the majority in S and M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358, I do not think that observer would reach the conclusion taken to be reached in that case, but would not be able to rid his or her mind of doubt of the kind that underlies the standards of the Bar and of judges in the United States earlier discussed. I trust it will be understood that the conclusion I have reached represents my attempt to apply a difficult objective standard and in no way indicates any reflection by me upon the integrity of Badgery Parker J. I should note a further consideration which might be thought to support a different conclusion. It was mentioned by Gaudron and McHugh JJ in their joint reasons in Laws v Australian Broadcasting Tribunal (1980) 64 ALJR 412. Citing earlier authority in the High Court they said: "A reasonable bystander does not entertain a reasonable fear that a decision maker will bring an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about an issue in the inquiry." (at 425) Although this could

UAAYBOS AUSTRALIA PTY LTD v TECTRAN CORPORATION PTY LIMITED [NO 23 (Priestley JA)

be understood as a general proposition of law, both the cases cited in regard to it, and their Honours' subsequent discussion of it seem to me to show that its applicability depends upon the facts of particular cases. The word "merely" is some indication of this, but further it seems inescapable that much will depend on the circumstances in which the decision maker earlier formed the conclusion, the purpose for which the conclusion was formed, the importance of the issue for reaching a result in the proceedings, and the nature of the issue itself. Their Honours' observation, so understood, does not in my opinion undermine, in the circumstances of the present case, the view that the public might reasonably apprehend that the judge in the present proceedings might not bring an unprejudiced and impartial mind to the resolution of the issues before him. I agree with the orders proposed by Kirby P.

Set aside the orders of Badgery Parker J made on 24 November 1989, 27 November 1989 and 5 December 1989;

Return the proceedings and all of them to the Common Law Division for hearing;

Order the respondents to pay the costs of the appeal and to have, in respect thereof, if so qualified, a certificate under the Suitors' Fund Act 1951;

Order that the costs at first instance up to and including 21 November 1989 be costs in the proceedings so returned; and

Order that the costs of the proceedings before Badgery Parker J on 24, 27, 29 November 1989 and 5 December 1989 be the costs of Raybos

Australia Pty Ltd and L Rajski in such proceedings. Counsel for the first Appellant: Mr Johnson (Solicitor) Counsel for the second Appellant: Dr L Rajski

Counsel for the first to the ninth, the thirteenth and the fourteenth Respondents: A Shand QC / M Bosic

Counsel for the tenth to the twelfth Respondents: J Heydon QC / J Nicholas Solicitors for the Appellant: Johnson and Co

Solicitors for the Respondents: Blake Dawson Waldron