19 I am not satisfied that there is an obvious and clear cut case that the future conduct of the proceeding before Judge Bowman would result in a breach of the principles of natural justice.
20 As I have observed, the arguments that have been presented to me in support of the present application are fundamentally the same as those which were raised before Judge Bowman himself in the application that he disqualified himself. Judge Bowman's reasons for rejecting that application are comprehensive. Further, in my opinion, the reasons are cogent and forceful. That is not to say that the Court of Appeal of the Supreme Court might not ultimately find that Judge Bowman should have disqualified himself. But it is sufficient for me to conclude that the matters relied upon do not establish an obvious and clear cut case that the future conduct of the proceeding would involve a breach of the principles of natural justice. Indeed it is apparent from reading the ruling made by Judge Bowman that some of the grounds relied upon were extremely wide reaching; and I would suggest that some of them appear flimsy. That does not determine the question, but it does tend to have the effect of undermining the force of the present application.
21 The crux of the matter is this. Judges must make rulings. Judges must make decisions. When a judge makes a ruling or a decision, more often than not someone will be displeased. In the course of a lengthy proceeding there will often be rulings at an early stage which will not only affect the future course of that proceeding but will be displeasing to one or other of the parties. If one were to take an unduly sensitive approach to the consequences of rulings, it would make the administration of justice impossible. A robust view must be taken. It must be accepted that when a judge makes a ruling during the course of a case, that does not mean that the judge is incapable of fairly and impartially making future rulings, or a final decision, in the case. Certainly I am not satisfied that the circumstances of the present case are such that if I was to refuse to constitute the tribunal this would be very likely to produce the result that there would be a breach of natural justice in the future.
22 In the course of his detailed submissions to me, Mr North SC, for Bradto, relied upon a number of other matters that he said were not raised before Judge Bowman. He submitted that rulings and views expressed by Judge Bowman differed from rulings and views on similar topics made by Deputy President Macnamara. But assuming that is the case, and I make no finding on that, it is not of any consequence. Judicial officers commonly take a different approach to the issues before a court. Surely there can be no better example than this than looking at the High Court of Australia itself. The fact that judicial officers take a different view of the law or the facts in a case does not mean that one or other of them is biased or should be apprehended to be biased. The law does not operate like a digital computer, where the same output is generated for a given input. It involves human beings and human beings do not judge identical facts identically.
23 Another matter relied upon was the manner in which Judge Bowman's ruling of 10 November 2005 was expressed. Certainly the reasoning is forceful, as well as being comprehensive. The suggestion was, in effect, that the forceful manner in which the reasons are expressed reinforces the apprehended bias which was the subject matter of the ruling. I do not agree. Judges are entitled to express themselves forcefully. As a senior judge of the Court of Appeal observed in another context "we do not want the law to nurture a nation of ninnies"[6]. Those involved in litigation are entitled to make robust and forceful submissions. Equally judges determining matters are entitled to give robust and forceful reasons. The day when colour goes out of the law will be a sad day. The fact that a ruling or judgment is expressed forcefully, even colourfully, is not a basis for concluding that the judge is not impartial or should be apprehended to be biased.
24 Another ground Bradto relied upon was that it would be desirable for the proceeding in which Maztan is a party to be heard in conjunction with the present proceeding and that if Judge Bowman was not prevented from continuing to hear the present proceeding, it would mean that he was likely to hear the Maztan proceeding. It was said that this would, in turn, put Maztan in a position where it was subject of certain adverse rulings before it even started. It is certainly true that where there are related proceedings it is desirable, more often than not, that they be heard together. However I am not persuaded that the proceeding initiated by Bradto and Maztan should necessarily be heard and determined at the same time as the present proceeding. The proceeding brought by the State is for an interlocutory injunction. Ordinarily a party seeking that form of relief is entitled to have a decision made, one way or the other, promptly. On some occasions the joining of such an application with another proceeding may prevent that from occurring. This may be such an occasion. Further I accept the submission made by Mr Garde QC, for the State, that it would have been open for Maztan to have sought to join in the current proceeding if it thought that it would advance or protect its interests. It has chosen not to do so.
25 From time to time proceedings will occur in the tribunal which determine a question concerning particular land or a particular matter and then be followed by another proceeding concerning the same land or the same matter. As a general practice I believe there is merit in the same tribunal being appointed to hear the subsequent matter. This not only promotes efficient case management, but also it is in the public interest by promoting consistent decision making. The fact that the member or members appointed to hear the second proceeding will have formed views as a result of the first proceeding does not mean that they are incapable of bringing an impartial mind to bear in determining the second proceeding. Judicial decision making involves repetition. It often occurs that persons before a court have previously been before that court, or issues before a court have previously been before that court. The administration of justice would not operate satisfactorily if it was sufficient to disqualify a judge to point to the fact that the judge had previously dealt with a person or decided an issue that was to be re-ventilated.[7]
26 Mr North also relied upon my decision in Tomasevic. That was a most unusual case. Indeed it may well have been the most troublesome case that I ever been associated with as a barrister or judge. In that case I anticipated that the final hearing of the application would require a member of the tribunal with great experience and skill. For that reason I decided that the hearing be before a judicial member of the tribunal, indeed a judicial member who was experienced in dealing with litigants in person. That person was Judge Dove. Because I decided that Judge Dove should hear the proceeding it was sensible that he also hear matters concerning what summonses should be issued, as it involved the same factual matters. I do not see a parallel between Tomasevic and the present proceeding. Indeed, if any parallel is to be drawn it is that Judge Bowman, an experienced judge and one of the most senior members of the tribunal, should continue to hear and determine the matter.