Principles
10 The apprehension of bias, in the form of prejudgment, disqualifies a judge from hearing or continuing to hear a Court proceeding. The test is whether a fair-minded lay observer might reasonably apprehend the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is asked to decide: Johnson 201 CLR at 492 [11] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. The test is objective and requires the decision-maker to assume that the observer is reasonable and:
"… the person being observed is a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial."
11 The reasonableness of any apprehension must be considered in the context of ordinary judicial practice, including the exigencies of modern litigation, such as active case management and intervention by a judge in the conduct of cases by, among other means, the expression of tentative views in exchanges with counsel, that while those views "… reflect a certain tendency of mind [they] are not, on that account alone, to be taken to indicate prejudgment": Johnson 201 CLR at 493 [12]-[13]. Indeed, as Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said in Johnson 201 CLR 493-494 [13]-[14]:
"Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them …. No doubt some statements, or some behaviour, may produce an ineradicable apprehension of prejudgment. On other occasions, however, a preliminary impression created by what is said or done may be altered by a later statement. It depends upon the circumstances of the particular case. The hypothetical observer is no more entitled to make snap judgments than the person under observation." (emphasis added)
12 The test involves, first, ascertaining whether there is a real, and not remote, possibility that the judge might not decide a case on its legal and factual merits, and secondly, the articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits, that is, impartially: Ebner 205 CLR at 345 [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ. However, a fair and unprejudiced mind "… is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it": The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 554 per Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ.
13 The requisite state of the judge's mind is that the fair-minded lay observer might reasonably consider, as a real possibility, that the judge might be so committed to a conclusion already formed that he or she is incapable of altering it, whatever evidence or arguments may be presented: Cabcharge Australia Limited v Australian Competition and Consumer Commission [2010] FCAFC 111 at [25]-[29] per Kenny, Tracey and Middleton JJ.
14 A judge's expression of tentative views during the course of argument as to matters on which the parties are permitted to address full argument does not manifest any partiality or bias, or amount to a predetermination of the issues: Bienstein v Bienstein (2003) 195 ALR 225 at 234 [34] per McHugh, Kirby and Callinan JJ citing Re Keeley: Ex parte Ansett Transport Industries (1990) 94 ALR 1, where Dawson J, at 9, noted that the mere fact, that there, the judge had persistently expressed views on a line of inquiry that he had raised during argument that had been met with equally persistent resistance, did not give rise to an appearance of bias. That was because, his Honour said, the judge's views were tentative and not concluded, and he had allowed the party complaining a full opportunity to make any submissions it wished about the matters the judge had sought to explore.
15 In R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 264 Barwick CJ, Gibbs, Stephen and Mason JJ said:
"The remarks on which the wife's submission were founded were made during argument in an interlocutory application. One must be careful not to exaggerate the importance of remarks of that kind. During the course of argument a judge will often follow the common, and sometimes necessary, course of formulating propositions for the purpose of enabling their correctness to be tested, and as a general rule anything that a judge says in the course of argument will be merely tentative and exploratory." (emphasis added)
16 And in Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 582 [4] Gummow ACJ, in agreeing with what Callinan J and Kirby and Crennan JJ had said on the issue of apprehension of bias, adopted the conclusion stated by Lord Walker of Gestingthorpe for the Privy Council in Almeida v Opportunity Equity Partners Ltd [2006] UKPC 44 at [103], namely:
"[T]he judge's interventions were motivated not by partiality but by the wish to understand the evidence (which was often obscure and inconsequential) and to push on the trial process."
Kirby and Crennan JJ expressly adopted what had been said in Bienstein 195 ALR at 234 [34] (at 229 CLR at 630 [112] and see also per Callinan J who discussed the application of the principles in relation to the Federal Court's docket system at 634-636 [174]-[180]).
17 The fair-minded lay observer is a person who is informed: Webb v The Queen (1994) 181 CLR 41 at 51-52, 55 per Mason CJ and McHugh J, 57 per Brennan J agreeing on this point, 87-88 per Toohey J and see too at 76 per Deane J; Concrete 229 CLR at 609-610 [110]-[112], 635-636 [177], 582 [4] and 612 [120]. Importantly, a judge's duty is to hear and determine the litigation before him or her. In Livesey v The New South Wales Bar Association (1983) 151 CLR 288 at 294 Mason, Murphy, Brennan, Deane and Dawson JJ said that:
"… it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court."
18 That was echoed in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 by Mason J, who also said that:
"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 or she is likely to decide issues in a particular case adversely to one of the parties."
He said that this did not mean that the judge would
"… approach the issues in the particular case otherwise than with an impartial and unprejudiced mind in the sense in which that expression was used in the authorities or that the judge's previous decisions provided an acceptable basis for inferring that there is a reasonable apprehension that the judge will approach the issues in this way."
Rather, Mason J said that the judge will be disqualified only if it is firmly established that there is a reasonable apprehension of bias by reason of prejudgment.
19 A party can also waive its right to object to a judge continuing to sit or deciding a case on the ground of apprehension of bias: Vakauta v Kelly (1989) 167 CLR 568. There (at 572), Brennan, Deane and Gaudron JJ noted that where comments were made by a judge were likely to convey to a reasonable and intelligent lay observer an impression of bias, a party who had legal representation was not entitled to stand by until the contents of the final judgment were known and then, if those contents proved unpalatable, to attack the judgment on the ground that, by reason of the earlier comments, there had been a failure to observe the requirement of the appearance of impartial judgment. They said that by standing by the party waived the right subsequently to object. It is obvious why that was so, their Honours said, because:
"… if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her."
See also: Smits v Roach (2006) 227 CLR 423 at 439-442 [43]-[48] per Gleeson CJ, Heydon and Crennan JJ, with whom on this point Gummow and Hayne JJ observed at 445 [61], in obiter that they would have agreed had it been necessary to decide the issue of waiver.
20 In Michael Wilson & Partners v Nicholls (2011) 244 CLR 427 at 451 [84], Gummow ACJ, Hayne, Crennan and Bell JJ observed that when a judge refused to disqualify himself or herself after an application had been made that he or she had given the appearance of bias, the question of whether a party's failure to seek leave to appeal against that refusal amounted to a waiver would depend upon consideration of whether the failure to seek that leave was reasonable. That question, they said:
"… would require examination of all relevant circumstances. Ordinarily those would include the stage the proceedings had reached when the disqualification application was made and refused and the consequences that would follow from leaving appellate determination of the issue of disqualification until after trial."
21 Importantly, their Honours overturned earlier decisions that had suggested that there was no right of a party to seek immediate appellate review of a judge's refusal to recuse himself or herself until after final judgment.