Apprehended bias
27In Webb & Hay v R [1994] HCA 30; (194) 181 CLR 41; (1994) 122 ALR 41; (1994) 68 ALJR 582, Deane J at [12] (citations omitted) discusses the range of categories of the appearance of bias.
12. The area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories of case. The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first e.g., a case where a dependent spouse or child has a direct pecuniary interest in the proceedings.) and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third e.g., a case where a judge is disqualified by reason of having heard some earlier case, and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.
28The relevant test in regards to apprehended bias is that stated in the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337; 176 ALR 644; 75 ALJR 277 in the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ at [6]-[8] citation omitted).
[6] Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
[7] The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
[8] The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
29In this matter, it would seem that the category of apprehended bias as described in Webb is one of 'association'. Where the "apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings".
30As to the steps in Ebner - what is it that is said might lead me, a Commissioner of the Court, to decide a case other than on factual merits; and, is there a logical connection between the matter and the feared deviation from the course of deciding the case on its merits? Would a 'fair-minded lay observer then reasonably apprehend that I did not bring an impartial mind in determining the matter?
31It is a fact that Mr Kingdom was a student in a course that I once taught. That course ran for one day per week for 18 weeks. I have no recollection of the year in which he was a student but I accept that 26 years ago I was teaching that course and that it was entirely probable that a class was held at St Ives Showground. I also note that it is a fact that Mr Atkins was also a student in the same course during the late 1980s; I have no recollection as to whether they were in the same class. As I taught arboriculture for almost 30 years, I regularly have past students appear before me as expert witnesses or who have prepared expert reports that are tendered as evidence; these experts appear in both tree dispute and planning matters. In this regard, Mr Kingdom is but one of many arborists with whom I have contact during my former and current careers. A number of those arborists were students in several subjects and courses of longer duration than the course in which Mr Kingdom was enrolled.
32Prior to this matter, Mr Kingdom has appeared as an expert witness before me at least once in the matter of Thornberry & Anor v Packer & Anor [2010] NSWLEC 1069. In that matter, the applicants who had engaged Mr Kingdom were represented by a solicitor. No allegation of bias was raised on that occasion. On at least another two occasions I have considered other tree dispute matters where Mr Kingdom's reports have been relied on but where he has not been in attendance (Taylor v Department of Housing [2010] NSWLEC 1172 [5], [26]; Jones v Morgan and King [2010] NSWLEC 1064 - [5]-[15]).
33As to the event that Mr Kingdom cites as being evidence of my prejudice against him, I have no recollection of the incident. Even if I did pick up a branch and threw it in his general direction there may have been many reasons for doing so including clearing a path, or even alerting someone to a possible problem. It is inconceivable to me that, as a teacher, I would have thrown a stick (larger than me) at a student with the intent of causing harm. I also consider that had Mr Kingdom considered my alleged action to be unacceptable he would have formally raised it at the time with the college director or another supervisor. No such complaint was made.
34As to the connection between the alleged stick incident some 26 years ago and the matter now before me, not only are the circumstances of my association with Mr Kingdom completely different, the time frame is considerable, the matter was not raised at an earlier hearing, and given the very few times Mr Kingdom has appeared before me, I consider that a fair-mined lay person would not conclude that I did not bring an impartial mind to determining the matter.
35In this matter Mr Kingdom's evidence is only one aspect to consider; apart from evidence from Mr Atkins and the engineers, I have the benefit of the expertise I bring to the Court as well as the most compelling evidence being the exposed roots and the condition of the stables.