For the reasons I have given, I am of opinion that the appeal in Lamb should be dismissed, whilst that in Psaila should be allowed and a new trial, with a jury, ordered to be had.
This is enough to dispose of the appeal in Psaila, but I think it convenient to deal with the question of ostensible bias in both appeals. I turn first to whether the appellant has made out a case of ostensible bias in Lamb. The law is not in dispute. A judge should not hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it: Livesey v. New South Wales Bar Association[1983] HCA 17; at 293-4. The test is based not on notions of "real likelihood" or "real danger" but on reasonable apprehension on the part of a fair-minded and informed observer: ; A question of ostensible bias can be a difficult one, involving matters of degree, and particular circumstances may strike different minds in different ways: at 294. Reasonable apprehension of bias must be firmly established; a mere lack of nicety is not enough: (1969) 122 C.L.R. 546 at 553. The fair-minded observer would not apprehend loss of impartiality from a short and emotional exchange taken out of context and then weighed in isolation: at 279. Many other authorities could be cited, but I do not think it necessary.
The present case is one of alleged "disqualification by conduct, including published statements", to use the broad classification suggested by Deane, J. in Webb v. R.[1994] HCA 30; (1994) 181 C.L.R. 41 at 74 and adopted by Charles, J.A. in giving the leading judgment in Clenae Pty. Ltd. v. Australia & New Zealand Banking Group Ltd.[1999] VSCA 35 at [31]. In Lamb's case it was submitted to us on behalf of the respondent that no regard could be had to what took place in Psaila's case. Different propositions were advanced at different times during the argument, but in the end the submission, as I understood it, on behalf of the respondent was that, where the allegation was only of ostensible bias, not actual bias, no regard could be had, at all events in cases of what Deane, J. described as "disqualification by conduct", to events occurring after the judicial officer whose conduct was impugned had finally determined the proceedings. The proposition varied from time to time, but that was, I think, its final form. The foundation of the proposition was, I think, the suggestion that the fair-minded observer could not be making observations after the conclusion of the proceedings in relation to which the question of ostensible bias had been raised. I see no reason in principle why, where ostensible bias by reason of conduct is alleged, the conduct which is said to suggest lack of impartiality may not take place before, during or after the proceedings. Indeed, I do not see why the ostensible bias should not be found, for example, wholly in statements made before the proceedings had begun, or wholly in statements made after they had concluded. In the present case the party complaining attempts to reinforce impressions created by the conduct on which it relies during the proceedings by reference to conduct in another case after those proceedings had concluded. I do not see why this may not be done, provided always of course that the subsequent conduct relied on can rationally be said to bear upon whether the judicial officer was likely to decide the earlier case without bias. When I speak of conduct I of course include statements; indeed, the conduct will usually take that form. It would be a remarkable thing if a judicial officer could, shortly after deciding a case, make comments which could reasonably be regarded as suggestive of bias against one of the parties and yet the decision be immune from attack unless the remarks were such as to show actual bias notwithstanding that a clear case of ostensible bias could be established by them assuming that they were available for that purpose.
The last part of this passage was cited by Charles, J.A. in Clenae Pty. Ltd. v. Australia & New Zealand Banking Group Ltd.[1999] VSCA 35 at [30] and by Sheller, J.A., speaking in effect for the Court of Appeal of New South Wales, in Bannister v. Walton (unreported, 1 April 1996, at 9). At least two authorities give support to the particular proposition that regard may be had to a subsequent explanation given by the judicial officer of what took place at the time of the conduct said to suggest bias. The first is Monroe Australia Pty. Ltd. v. Burian[1998] SASC 6578, where Doyle, C.J. at 7 referred to what had been said by Deane, J. in Webb v. R. at 73 and remarked that the facts of which the fair-minded observer is to be taken to have been aware "will usually include the conduct of the judicial officer in question, and may include any explanation, given by the judicial officer of what transpired". The second authority is R. v. RPS (unreported, New South Wales Court of Criminal Appeal, 13 August 1997), where Hunt, C.J. at CL, speaking in effect for the Court, said at 31, of the report of the trial judge, that the facts available to the fair-minded observer include "any explanation which the judge may give and which is acceptable" to the appellate court. His Honour cited in support the judgment of Deane, J. in Webb and Bannister v. Walton.
More importantly the vice against which the rules as to perceived bias seek to give protection is not the strong expression of views by judges and judicial officers, howsoever in most cases that may be undesirable, but the creation of an apprehension that they may not approach the making of any decision in the trial with an impartial and unprejudiced mind: see Re JRL; Ex parte CJL[1986] HCA 39; (1986) 161 C.L.R. 342 at 352 per Mason, J. In a passage approved at least twice by a majority of the High Court, Charles, J. said in Reg.v. London County Council: Re the Empire Theatre(1894) 71 L.T. 638 at 639: "Preconceived opinions - though it is unfortunate that a judge should have any - do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded": see R. v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd.[1953] HCA 22; (1953) 88 C.L.R. 100 at 116 and Re Polites; Ex parte Hoyts Corporation Pty. Ltd.[1991] HCA 25; (1991) 173 C.L.R. 78 at 86.