Workcover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited

PROSECUTOR Ms A F Backman of Counsel Mr G A McCann, WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr R E Dubler of Counsel Corrs Chambers Westgarth, Solicitors

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: WRIGHT J, President Friday, 28 April 2000

Matter No. IRC 5242 of 1997 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR RODNEY DUBOIS) v CONCRETE CONSTRUCTIONS GROUP LIMITED Prosecution pursuant to s 16(1) of the Occupational Health and Safety Act 1983.

1 This judgment deals with an application by the defendant, Concrete Constructions Group Limited, that I disqualify myself from hearing the proceedings. The application was foreshadowed on 8 February 2000 when the defendant's counsel intimated that this application was likely to be made, although final instructions were then yet to be received. Subsequently, the defendant advised the Court on 9 March that the application would be made. Pursuant to directions made at that time the defendant filed submissions in support of its application. The prosecutor filed submissions in response.

Circumstances of application and submissions of the parties 2 However, at the commencement of the hearing on 21 March, the defendant's attention was drawn to relevant authority and the question raised whether its application should be made in a more formal manner by notice of motion. The particular authority was the judgment of Kirby P in Wentworth v Rogers (No. 13) (unreported, Court of Appeal, 13 March 1987 at 3). Leave was granted upon the defendant's application to rely on the submissions filed on 10 March 2000 as if they were a notice of motion which set out the grounds and reasons upon which the application was made. The application was treated as having been made in that way and all procedural requirements, which would otherwise stand in the way of the submissions being treated as a notice of motion, were dispensed with pursuant to Rule 88 of the Commission's Rules (see also s 170 of the Industrial Relations Act 1996).

3 In these proceedings, the defendant was represented by Mr R E Dubler of counsel and Ms A F Backman of counsel appeared for the prosecutor. It is convenient to set out the terms of the submissions provided in light of the nature, terms and course of the application. The defendant's document set out the ground of the application in paragraph 1 and then developed the submissions in support in the following way:

1. In matter no: CT1348 of 1995 the Honourable President Wright J, as counsel acted as prosecutor for the WorkCover Authority of New South Wales against Concrete Constructions Group Pty Limited (the defendant) under s 16(1) of the Occupational Health and Safety Act 1983 (the Act).

2. The Summons was summarily dismissed by Vice-President Cahill J on 20 September 1996 based on the principle of double jeopardy/autrefois acquit. The substantive allegations of the defendant being in breach of the Act were not determined by the Commission in Court Session.

3. The issue for consideration is whether in all the circumstances, the parties or the public might entertain a reasonable apprehension that his Honour the President might not bring an impartial and unprejudiced mind to the determination of the current prosecution by the WorkCover Authority against the same defendant alleging a breach of the same section of the Act. See Livesey v NSW Bar Association (1983) 151 CLR 288 at 293 - 294, 298 - 299.

The categories of apprehension of bias in the current situation are the third and fourth categories identified by Deane J in Webb v The Queen (1994) 181 CLR 41 at 74: "The third category is disqualification by association. It will often overlap the first and consist of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with the person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third and consist of cases where knowledge of some prejudicial but inadmissible fact or circumstance give rise to the apprehension of bias."

The situation is more in the fourth category though it overlaps to some extent with the third category.

It can be presumed that as prosecutor for the WorkCover Authority of NSW the Honourable President as counsel would have received information which grounded the former prosecution which would have included allegations adverse to the defendant which impugned its health and safety record, its system of work and potentially one or other of its officers. This information would necessarily be in inadmissible form which has not been tested in court.

The defendant at all times claimed its innocence in respect of the former charge.

Further, the public can reasonably presume that the Honourable President as prosecutor for WorkCover must have come to a personal view that there was sufficient substance and reasonableness in the allegations made against the defendant to justify the prosecution as a whole.

The receipt and adoption of such information as described above may give rise to a reasonable apprehension that the Honourable President may be unable to put that information entirely "out of mind" when considering whether or not the same defendant had in place safe systems of work, albeit in different circumstances, given the receipt of information adverse to the safety record of the defendant from a prima facie credible source such as the WorkCover Authority (see Australian National Industries v Spedley Securities 26 NSWLR 411 at 417).

The fear is that the Honourable President may find such a resonance with the allegations being put by WorkCover in the current prosecution with information previously received as prosecutor in the former proceedings as to predispose the judge to accepting it more readily than otherwise would be the case.

The Court of Appeal in Carver v Law Society of NSW (1998) 43 NSWLR 71 at 99G - 100A per Powell JA with whom Sheppard AJA and Stein JA agreed, held that a reasonable apprehension of bias by virtue of a tribunal member having been a member of the governing body or of a relevant committee of a body instituting proceedings subsequently dealt with by the tribunal was not overcome by virtue of the fact that that member claimed to have no recollection of participation in those prior events.

4 The prosecutor's written outline of submissions, in which it indicated that it opposed the application, was as follows:

The correct test to be applied in deciding whether the trial judge, Wright J, President, should disqualify himself from further hearing these proceedings is whether, in all the circumstances, the parties or the public or the fair-minded observer might entertain a reasonable apprehension that a trial judge hearing the case might not bring an impartial and unprejudiced mind to the resolution of questions involved in it: Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293; Re JRL; Ex parte CJL (1986) 161 CLR 342 at 351 - 352; Re Polites and Another; Ex parte The Hoyts Corporation Pty Limited and Others (1991) 1973 CLR 78 at 85; RPS v R (2000) 168 ALR 729 at 732; Helljay Investments Pty Ltd and Deputy Commissioner of Taxation (unreported [1999] HCA 56 per Hayne J, paragraphs 11 to 13).

Other expressions of judicial opinion impact on the above mentioned test to the extent that it is applied subject to certain qualifications.

Re Polites (at 86, 87) for example, referred to the caution expressed by Mason J in Re JRL when applying the test.

Re Polites made the additional point (at 87, 88) that the prior involvement of a judicial officer with governments, etc, who are frequently parties to proceedings before a relevant court or tribunal, etc, cannot be sufficient by itself to amount to a disqualification from sitting in a particular case. Nor does a prior relationship between a client and the relevant judicial officer as legal adviser generally disqualify that judicial officer.

Mason J, in Re JRL, at 352, also noted: "… 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."

In Australian National Industries Ltd v Spedley Securities Ltd (In Liq.) & Ors (1992) 26 NSWLR 411 at 417 and 418, Kirby P, as he then was, cited a number of "injunctions" which operate to impose limits on judicial disqualification.

Spedley Securities, at 441D, also emphasised and approved dictum in Livesey's case, namely, that each case (dealing with a disqualification application) must be determined by reference to its particular circumstances.

Livesey, in contrast to the present case, was a case concerned with the credit of an essential witness and where the case turned on credibility. (See also The Queen v Watson Ex Parte Armstrong (1976) 136 CLR 248 at 264.)

In the present proceedings, there is no identifiable live issue which confronts the trial judge and about which the trial judge has earlier expressed clear views. Neither are there any identifiable credit issues about which the trial judge has earlier expressed clear views.

Instead, the grounds for disqualification upon which the present application appear to lie are vague and entirely speculative.

At best, it would seem that the trial judge, as former counsel for one of the parties, appeared in an earlier preliminary matter concerning both parties. The matter was technical in nature and the merits of the case would not have been tested.

The factual circumstances grounding this application are, it is submitted, unsustainable, in light of the legal authorities and do not support the applicant's argument that the trial judge should disqualify himself from further hearing the proceedings. The application should be dismissed with costs.

5 At the conclusion of the initial hearing the parties were invited to provide a note as to three judgments in this jurisdiction on the present issue as they had not been adverted to in the proceedings. The judgments were Caltex Refining Co Pty Ltd v Australian Workers Union, NSW Branch (1990) 35 IR 100; Brake and Service Centre Drummoyne Pty Ltd v Majik Markets Pty Ltd (1990) 35 IR 351; and Australian Medical Association v Minister of Health (1991) 38 IR 144. The submissions received from the defendant in response to the leave implicitly granted by that invitation were in these terms:

The defendant submits the additional three cases do not take the matter much further as the facts are distinguishable. The three cases referred to by the Bench in total merely put forward the proposition that a judge is not disqualified merely by reason of having acted for a client whilst at the Bar and further the mere acting for a client and putting submissions on behalf of that client in court does not carry with it the proposition that Counsel formed a personal opinion consistent with those submissions.

The defendant submits that a different situation arises in the case of a prosecutor.

The submission put by the defendant is on all fours with that put in the Court of Appeal in Dovade Pty Limited v Westpac Banking Group (1999) 46 NSWLR 168 at pages 180 - 181.

The submission was put that an inference could fairly be said to arise that in acting as Counsel for the Prosecution this must have involved the barrister in evaluating favourably the prosecution case against the defendant. In the matter there, as here, the prosecution did not proceed to completion and was stayed without the merits of the prosecution being heard. The Court of Appeal did not have to decide the submission because it held that any issue of apprehended bias on the ground of the judge's former position as Counsel for the prosecution had been waived. However, the Court of Appeal left open the soundness of the submission saying the following at 181 line 52: " Whether or not a fair minded observer would infer that involvement as a prosecutor in committal and contested stay proceedings would create a reasonable apprehension of bias in later proceedings in which the former prosecutor is a judge and where the accused person is a significant witness (and we express no view on that matter) , it is pellucidly clear that the appellants waived any objection on this ground." (my emphasis)

As to the reasonable inferences to be drawn by reason of a person appearing as Counsel for the prosecution the defendant relies upon the New South Wales Barristers Rules under s 57A of the Legal Profession Act 1987 as they existed in 1996 when Counsel appeared as prosecutor (published on 10 June 1994 in the Government Gazette). By Rule 15 "prosecutor" means a barrister who appears for the complainant or Crown in criminal proceedings. Rules 62 - 72 govern prosecutors. Rules 62, 65 and 69 were as follows:

62. "A prosecutor must assist the court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the court, and must seek to assist the court with adequate submissions of law to enable the law properly to be applied to the facts.

65. A prosecutor must not argue any proposition of fact or law which the prosecutor does not believe on reasonable grounds to carry weight. [see eg Anderson (1991) 53 A Crim R 421 per Gleeson CJ at 449, 453].

69. A prosecutor must not inform the court or the opponent that the prosecution has evidence supporting an aspect of its case unless the prosecutor believes that such evidence will be available from material already available to the prosecutor."

The current rules are in the same terms except Rule 65 after the words "reasonable grounds" now says: "to be capable of contributing to a finding of guilt and also to carry weight."

Accordingly, whatever may be the position with respect to a barrister appearing for a client in a civil matter, the following inferences can reasonably be drawn by reason of a barrister appearing as Counsel for the prosecution at the hearing of the prosecution:

(a) That the prosecutor personally believes on reasonable grounds (in the personal opinion of the prosecutor) that the prosecution's evidence as a whole against the defendant carries weight;

(b) That the prosecutor personally believes that there exists already available material from which evidence can be led which in the personal opinion of the barrister carries weight and would be capable of supporting a finding of guilt.

The defendant says that if the above reasonable inferences can be drawn the defendant and any public member of the public has reasonable grounds for asserting that the prosecutor having formed a personal view adverse to the defendant in respect of health and safety matters at work offensive to the provision of the Act in question, may not be in a position to decide impartially the merits of the subsequent prosecution of the same defendant for another breach of the same section of the Act.

The apprehended bias is not a bias in favour of WorkCover (which was the alleged bias in the three cases referred to by the Bench) but a bias against the defendant by virtue of having prosecuted the same defendant in a similar fact situation, being an alleged health and safety breach of s 16 of the Act.

The prosecutor says there is insufficient co-incidence of any live issue between the two prosecutions. It also says the extent of any information provided to the then Counsel for the prosecution is speculative.

The record of the prior proceedings in which the judge as counsel appeared and the record of the judgment of Fisher CJ reveals that the allegation made against Concrete Constructions in the earlier prosecution included an allegation that Concrete Constructions failed to provide safe systems of work, particularly with respect to its control of contractors at its building site: see p 18 of judgment of Cahill V-P. This central allegation is the same as that made in the current prosecution.

Further, it is a matter of public record that both the earlier prosecution briefs and the current one contains records of interview with Mr Brown, Concrete Construction's National Safety Officer, in respect of Concrete Construction's systems of work at its building sites. He is likely to be a witness in the current prosecution. For obvious reasons the defence would prefer not to tender both records of interview as challenges may be made to the current interview and the earlier one, if re-read by the judge, can only potentially exacerbate the defendant's concerns. If the prosecution objects to this being treated as a matter of record and not bona fide in dispute between the parties, the defendant seeks leave to re-open the application for the purpose of providing by affidavit of Mr Brown or otherwise that he was the subject of records of interview in both prosecutions.

Having read this evidence and other material in the earlier brief, being of an adverse nature in respect of the defendant's system of work and its officers, and having necessarily formed the personal view that the material carried weight such as to be capable of leading to a conviction, the judge ought not now try the same defendant and hear at least one common witness in respect of similar allegations.

The quotation relied upon by the defendant from Dovade Pty Limited v Westpac Banking Group (1999) 46 NSWLR 168 at 181 does not purport to state (or give tacit approval to) a proposition that Counsel acting for the prosecution is in a different position from Counsel acting for a defendant or for a party in a civil proceeding. As stated in the judgment, no view was expressed in relation to the situation of a former prosecutor as a judge in later proceedings where the same accused was a significant witness in the later proceedings.

The inferences upon which the defendant/applicant seeks to rely are inferences which may be applicable to the merits of the case ("evidence as a whole", "evidence … capable of supporting a finding of guilt") as opposed to preliminary arguments on a legal point.

An allegation that is common to both sets of proceedings (failure to provide safe systems of work) cannot be the legitimate basis for a disqualification application. The question to be considered concerns, for example, whether there is a commonality of live issues to both sets of proceedings. Here, as earlier submitted by the prosecutor, no common issues which may be in dispute have been identified. In Re Polites the Court said (at 88): "… if the correctness or appropriateness of advice given to the client is a live issue for determination by the tribunal (or court), the erstwhile legal adviser should not sit. A fortiori, if the advice has gone beyond an exposition of the law and advises the adoption of a course of conduct to advance the client's interests, the erstwhile legal adviser should not sit in a proceeding in which it is necessary to decide whether the course of conduct taken by the client was legally effective or was wise, reasonable or appropriate. If the erstwhile legal adviser were to sit in a proceeding in which the quality of his or her advice is in issue, there would be reasonable grounds for apprehending that he or she might not bring an impartial and unprejudiced mind to the resolution of the issue. Much depends on the nature of his or her relationship with the client, the ambit of the advice given and the issues falling for determination."

Caltex Refining Co Pty Ltd and Anor v Australian Workers Union, NSW Branch (1990) 35 IR 100 at 100, 101; Australian Medical Association v Minister for Health (1991) 38 IR 144 at 158, 159; Brake and Service Centre Drummoyne Pty Ltd & Ors v Majik Markets Pty Ltd, are all authorities that support the prosecution's contention that in the absence of identification of a disputed or live issue for determination in the present proceedings, a mere assumption that a trial judge may decide an issue in a particular way in order to justify an earlier advice or submission earlier rejected, is not enough to warrant judicial disqualification.

In these present proceedings the circumstances as presented by the defendant on the application are such that not only is the application based on an assumption that an issue exists which has been revived from earlier proceedings in which the trial judge as Counsel was involved, but the issue itself (whatever it may be) has not been identified.

The prosecution does not propose to rely on evidence of Mr Brown at the hearing.

7 The submissions of the defendant, rather surprisingly, transcended the request made of the parties, and the leave implicit therein. Only the first paragraph and a short reference in paragraph 9 accorded with the leave given. The relevant principle apparently needs to be re-stated. It is exemplified by the following passage in Professional Officers Association of New South Wales v New South Wales Teachers' Federation (1994) 54 IR 85 at 95: Parties who adopt the approach of filing written material for which leave has not been given, or where the material is not in accordance with leave which has been given, risk having the material rejected. Leave should not be granted, in our view, to a respondent to file a further reply without good reason for a departure from the ordinary practice, which is that a respondent is usually not given a second opportunity to respond to submissions made against it; fairness to an applicant/appellant dictates that approach and is consistent with the ordinary rules for a hearing to be concluded.

8 Although that passage refers to the respondent in those proceedings, the situation of the defendant as applicant in the present motion is no different in principle. Nevertheless, in light of the nature of the application, the Court received the additional submissions without requiring leave to be considered, and notwithstanding the important consideration that the extra material was material which the Court should have had placed before it in the defendant's initial submissions, whether written or oral, if the defendant had viewed such submissions as important to the application it was making.

9 It is to be observed that the defendant for the first time raised in paragraph 12 of its additional submissions its concerns as to the evidence of Mr Brown. At the resumed hearing on 6 April an enquiry was made of counsel for the defendant whether the prosecutor's statement (in paragraph 6 of its submissions) that it did not propose to rely on Mr Brown's evidence, altered its position. Counsel responded: "No your Honour. It does not deal with whether or not the defendant may call Mr Brown to explain the systems. We don't know that yet. It does not remove that possibility".

At the conclusion of the hearing on 6 April 2000, the Court announced that the application was to be rejected, reasons for that decision would be provided as soon as practicable and the question of the costs application made by the prosecutor would be reserved. These are the reasons for dismissing the application.

Principles relevant to the application 10 The issue for decision is one frequently raised before courts and tribunals albeit in a variety of different contexts. For example, but in a slightly different context to the circumstances of this matter, there is the recent judgment of Hayne J of the High Court in Helljay Investments Pty Limited v Deputy Commissioner of Taxation (Cth) [1999] HCA 56; (1999) 74 ALJR 68. His Honour, in that case at 11 - 12, 74 ALJR at 71 - 72, made these observations:

11. The principles concerning what has come to be called shortly, if not wholly accurately, the "appearance of bias" by judicial officers are well established; R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; 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) 167 CLR 568; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78. What must be demonstrated to the requisite degree is the appearance of prejudgment, not simply that a particular outcome of the litigation is likely or unlikely. As Mason J said in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352: "It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson (1976) 136 CLR 248 and Livesey (1983) 151 CLR 288 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 and 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. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be 'firmly established': Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553-554; Watson (1976) 136 CLR 248 at 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 at 14; 32 ALR 47 at 50 - 51."

12. … The "fair and unprejudiced mind" which must be brought to bear upon the determination of litigation is, as the Court said in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 554, "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".

11 It will be noted that Hayne J included a lengthy passage from the judgment of Mason J in Re J.R.L.; Ex parte C.J.L. In view of the nature of the present application, it is appropriate also to set out the next passage in the judgment of Mason J in that case, which is as follows: 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.

12 The issue raised by the present application has also recently been the subject of a paper by one of Australia's pre-eminent administrative and public law scholars, Professor Margaret Allars. The paper is entitled "Procedural Fairness: Disqualification Required by the Bias Rule" (1999) 4 The Judicial Review 269. Professor Allars set out in succinct form the relevant principles as derived from the leading authorities in the area. For example, at pages 281 - 282 of the article, she made these observations under the heading "Preparedness to accede to application": An increase has occurred in the frequency of applications by litigants that judges should disqualify themselves from sitting in particular cases on account of their participation in proceedings involving one of the litigants or on account of conduct during the litigation. See observations in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J.

Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit. By acceding too readily to suggestions of appearance of bias, judges may 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 (ibid at 352; Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (1986) 6 NSWLR 272; R v George, Harris and Hilton (1987) 9 NSWLR 527; Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45 at 49). A judge therefore has a duty to disqualify himself or herself only for proper reason, namely, where there is an actuality of bias or the existence of grounds for reasonable apprehension of bias, and the judge equally has a duty in other circumstances not to disqualify himself or herself ( Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (1986) 6 NSWLR 272; Rajski v Wood (1989) 18 NSWLR 512 at 519 per Kirby P).

Too readily acceding to a request for disqualification may provide a basis for judicial review just as does an inappropriate refusal to disqualify. This was powerfully reinforced by the High Court's decision in 1991 in Re Polites; Ex parte Hoyts Corp Pty Ltd (1991) 173 CLR 78. A deputy president of the Australian Industrial Relations Commission was requested to disqualify himself at a point when the Commission's hearing was in its twenty-seventh day, and encompassed 2500 pages of transcript, 96 exhibits and inspections by a commissioner in the United States of America. The deputy president acceded to the request, disqualifying himself on the ground of his previous relationship with one of the parties as a legal adviser. By a majority the High Court held that the deputy president should not have disqualified himself and granted mandamus to compel him to sit. (incorporating relevant footnotes)

13 Later at pages 288 - 290, under the heading "Prejudgment: Previous role of judge or tribunal member as legal adviser", Professor Allars provided the following discussion: Generally a prior relationship of legal adviser and client does not disqualify the former adviser, on becoming a member of a tribunal or court, from sitting in proceedings before that tribunal or court to which the former client is a party. Re Polites; Ex parte Hoyts Corp Pty Ltd (1991) 173 CLR 78 at 87.

Thus, in S & M Motor Repairs Pty Ltd v Caltex Oil (Aust) Pty Ltd (1988) 12 NSWLR 358 the New South Wales Court of Appeal by a majority held that Bryson J properly declined to disqualify himself from hearing contempt proceedings brought by his former client Caltex against a franchisee. Priestley and Clarke JJA held that an observer of average intelligence and having little knowledge of the legal system would not reasonably apprehend bias on hearing that a judge had often worked for Caltex when he was a barrister. Only an observer knowing nothing of the way in which barristers do their work would apprehend bias and that would not be a reasonable observer, as required in the test. The test requires a person of average intelligence and moderately informed so as to make a reasonable judgment. Kirby P, in dissent on this issue, reached the conclusion that there was an appearance of bias. Although there is no universal rule in relation to judges sitting in cases involving litigants with which they had a connection while at the bar, and each case depends on its own circumstances, Kirby P took the view that in this case the proximity of the connection, its duration, intensity, nature and likely incidents, and the failure to disclose it, created the apprehension.

There is no rule that a judge who has previously appeared as counsel against a party who is now a litigant, or in peripheral litigation, should disqualify himself or herself merely on that account ( Precision Fabrication Pty Ltd v Roadcon Pty Ltd (1991) 104 FLR 260). However, if the judge has previously been briefed as counsel in the matter he or she should not sit ( Thellusson v Lord Rendlesham (1859) 7 HLC 429; 11 ER 172; Precision Fabrication Pty Ltd v Roadcon Pty Ltd (1991) 104 FLR 260 at 264). In particular, if the correctness or appropriateness of advice given to the client is a live issue for determination by the tribunal or court, the position is very different. The erstwhile legal adviser should not sit ( Re Polites; Ex parte Hoyts Corp Pty Ltd (1991) 173 CLR 78 at 88). The apprehension of bias is even stronger where the advice has gone beyond an exposition of the law and advises the adoption of a course of conduct to advance the client's interests. The erstwhile legal adviser should not sit in a proceeding in which it is necessary to decide whether the course of conduct taken by the client was legally effective or was wise, reasonable or appropriate ( Re Polites; Ex parte Hoyts Corp Pty Ltd (1991) 173 CLR 78 at 88). If a tribunal member or judge sits in a proceeding in which the quality of his or her advice is in issue, there would be reasonable grounds for apprehending that he or she might not bring an impartial and unprejudiced mind to the resolution of the issue ( Re Polites; Ex parte Hoyts Corp Pty Ltd (1991) 173 CLR 78 at 88). In determining whether there is an apprehension of bias, account must be taken of the nature of the relationship with the client, the ambit of the advice given and the issue falling for determination ( Re Polites; Ex parte Hoyts Corp Pty Ltd (1991) 173 CLR 78 at 88). For example, in Re Polites; Ex parte Hoyts Corp Pty Ltd (1991) 173 CLR 78 at 88 a deputy president of the Australian Industrial Relations Commission who had previously given advice on corporate restructuring that would allow reduction of staffing levels and wages and introduction of junior rates for employees in cinemas, disqualified himself from hearing later proceedings involving the employer when requested by the relevant union to do so. The High Court held he should not have disqualified himself. His advice had become irrelevant to the very different circumstances of the industry now, and had not included a recommendation for a future course of action but only a detailed available negotiating position ( Re Polites; Ex parte Hoyts Corp Pty Ltd (1991) 173 CLR 78 at 91). Clearly a difficult discretionary judgment was made by the three-member High Court bench as to whether in the circumstances of the case sufficient change had occurred over the period which had elapsed since the advice was given. The proceedings before the commission concerned events as they stood two years after the advice was given. However, the relationship of solicitor and client was a brief one, apparently consisting only of the letter of advice. As the judges said, much depends upon the nature of the relationship between the judge or tribunal member and the client, the ambit of the advice given and the issues falling for determination ( Re Polites; Ex parte Hoyts Corp Pty Ltd (1991) 173 CLR 78 at 88 per Brennan , Gaudron and McHugh JJ).

14 An important authority referred to by the learned author in the passage last cited was the judgment of Mildren J of the Supreme Court of the Northern Territory in Precision Fabrication Pty Ltd v Roadcom Pty Ltd (1991) 104 FLR 260, where his Honour said at 263 - 264: The relevant legal principles to be applied in a case such as this are:

1. A judge should not sit to hear a case if in all 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 (supra) at 293-294.
2. A judge should not sit if he considers that there is any real possibility that his participation in the case might lead to a reasonable apprehension of pre-judgment or bias: Livesey at 294.
3. However, it would be an abdication of judicial function for a judge to automatically disqualify himself whenever he was requested to do so by one party on the grounds of apparent bias, regardless of the wishes of the other party to the suit: Livesey at 294; Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272.
4. Commonly the types of cases which arise where there is an apprehension of bias, are cases where the judge has an interest in the result, or where the judge has indicated to the parties that he has already made up his mind on some issue in the case without giving the affected party a proper opportunity to submit his case, or where the judge is a friend or relative of one of the parties or of a material witness or where the judge occupies some other position in the case which is incompatible with his judicial function. A recent example of the last type of situation was considered by this Court in R v Cavit; Ex parte Rosenfield (1985) 73 FLR 385, where a Crown Prosecutor who was appointed an acting magistrate was held to be disbarred from hearing the summary prosecution of an accused person because of his position as a prosecutor. But these are all but instances of the general rule referred to in Livesey. Bias does not come in closed categories: Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530 at 549.
5. In determining whether a fair-minded person would entertain a reasonable apprehension of bias, that person is expected to know the objective facts and the legal history of the matter, but not to have any individual knowledge of the judge concerned: Fingleton v Christian Ivanoff Pty Ltd (supra) at 533, per Bray CJ; R v Cavit (supra) at 34.
6. It is common practice for a judge to disqualify himself where a former client of his, whilst at the bar, becomes a litigant in a matter to come before him: Lyle v Christian Ivanoff Pty Ltd (1977) 16 SASR 476 at 484, per Bright J. Likewise, a judge should not, in my opinion, hear a matter if he had previously been briefed as counsel in that matter: Thellusson v Lord Rendlesham (1859) 7 HLC 429; 11 ER 172, where Lord Chelsmford LC disqualified himself from taking part (although not from sitting) in the House of Lords on an appeal in which he had previously been briefed as counsel. However, merely being involved as counsel in peripheral litigation may not require a judge to disqualify himself: Thelluson (supra), where Lord St Leonards who had previously been briefed as counsel "in various branches of this cause on different occasions" did not disqualify himself, although, as Wells J observed in R v Moss; Ex parte Mancini (1982) 29 SASR 385 at 428, "the standards of reason and right conduct in public affairs have undergone a substantial - sometimes even a dramatic - metamorphosis" since then. There does not appear to be any rule of practice that a judge who has previously appeared as counsel against a party who has become a litigant in a matter to come before him should disqualify himself merely on that account.

15 The judgment of Mildren J sets out relevantly the principles to be applied, except to the extent that some of the matters referred to in paragraph 6 of the extract have to be now considered as considerably qualified by the judgment of the High Court in Re Polites. For that reason, Professor Allars' paper provides a more contemporary and thus complete perspective. For present purposes, and notwithstanding some oversimplification, the principles derived from Professor Allars' article and the cases that have been referred to, may be summarised as follows:

(1) The test to be applied is that of reasonable apprehension of bias. A judge should not sit to hear a case if in all circumstances the parties or the public might entertain a reasonable apprehension that he or she might not bring an impartial and unprejudiced mind to the resolution of the question involved in it. However, it would be an abdication of judicial function for a judge to automatically disqualify himself whenever requested to do so by one party on the grounds of apparent bias, regardless of the wishes of the other party to the suit. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit. By acceding too readily to suggestions of appearance of bias, judges may 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. A judge therefore has a duty to disqualify himself or herself only for proper reason, namely, where there is an actuality of bias or the existence of grounds for reasonable apprehension of bias, and the judge equally has a duty in other circumstances not to disqualify himself or herself.

(2) For example, a prior relationship of legal adviser and client does not, generally speaking, disqualify the former adviser, on becoming a member of a tribunal or court, from sitting in proceedings before that tribunal or court to which the former client is a party. Similarly, there is no rule of practice that a judge who has previously appeared as counsel against a party who is now a litigant in a matter to come before him or her, or has appeared in peripheral litigation involving that party, should disqualify himself or herself merely on that account. However, if the judge has previously been briefed as counsel in the matter before the court he or she should not sit. Similarly, if the correctness or appropriateness of advice given to a client is a live issue for determination by the tribunal or court, the position is also very different. The erstwhile legal adviser should not sit

(3) In determining whether a fair-minded person would entertain a reasonable apprehension of bias, that person is expected to know the objective facts and the legal history of the matter, but not to have any individual knowledge of the judge concerned.

(4) The mere claim that there is an appearance of bias does not establish that a reasonable apprehension exists, as this is a matter which must be determined objectively. Reasonable apprehension of bias must usually be firmly established. 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 or favourably to one party or the other.

16 Reference may be made to two other relatively recent authorities. In Aussie Airlines Pty Limited v Australian Airlines Pty Limited (1996) 65 FCR 215 at 232 - 233 Merkel J of the Federal Court referred to the statement of Brennan, Deane and Gaudron JJ in Vakauta v Kelly (1989) 167 CLR 568 at 570 that: The requirement of the reality and the appearance of impartial justice in the administration of the law by the courts is one which must be observed in the real world of actual litigation.

His Honour also referred to a passage earlier referred to from R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group, and concluded: I am fortified in my view by the fact that in recent times the High Court has taken a realistic rather than a hypothetical view of the issue of apprehended bias.

… Although it may be arguable that the requirement that the basis for disqualification be "firmly established" relates to cases of apprehended bias by reason of prejudgment or conduct during proceedings rather than of association, each passage is yet another demonstration of the requirement that this area of the law be governed by the reality of the situation.

The recent majority decision of the Full Court of the Federal Court in Trustees of Christian Brothers v. Cardone (1995) 130 ALR 345 and more recent decisions of the High Court in Webb v. The Queen (1994) 181 CLR 41, Re Polites (1991) 173 CLR 78, Re Finance Sector Union of Australia and Anor; Ex parte Illaton Pty. Ltd . (1992) 66 ALJR 583 and Laws (1990) 170 CLR 70 might also be said to be supportive of such an approach.

17 Similarly, as Chernov JA held in the Victorian Court of Appeal in R v Nicholas [2000] VSCA 49 (at para 17 of Annexure 1 thereto): I am conscious that this is a criminal appeal, both as to conviction and sentence, which necessarily involves the liberty of the applicant so that there has to be sensitivity in respect of the application for my disqualification. Nevertheless, in my view, the test for determining whether perceived bias exists is whether there is a reasonable, not a fanciful or fantastic apprehension that I will not be able to bring an impartial or unprejudiced mind to the resolution of the issues that arise or may arise in the particular case. The test is not whether I might decide the case adversely to the applicant. The ultimate question for decision is whether in the circumstances existing in this case, a fair-minded observer might entertain a reasonable apprehension that, because I had a conference with the applicant almost 20 years ago for the purpose of tendering him legal advice in relation to a prosecution brought against him for breach or breaches of the Companies Act , in the course of which I would have received instructions pertaining to that matter, I might not bring to bear an impartial and unprejudiced mind to the resolution of the issues that might arise in the applications for leave to appeal, both from the point of view of the applicant and the Crown. As Tadgell , J.A. pointed out in Gascor v. Ellicott [1997] 1 VR 332 at 342, "the court is to be satisfied that the criterion is met, not that it might be met."

His Honour had earlier referred to "The facts that are to be taken into account for the purpose of establishing whether there is apprehended bias, are objective facts and do not encompass the subjective concern of the litigant". The Full Court, which also comprised Phillips CJ and Ormiston JA, subsequently held that the reasons of Chernov JA were free of reviewable error: [2000] VSCA 49 at 47 - 48.

18 I am conscious also of the observations of Kirby P, as his Honour then was, in S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358, as to the particular sensitivity required in proceedings which are criminal or criminal in nature. I have approached the matter on this basis. However, it may not always be irrelevant in proceedings of this kind to take into account the fact that the proceedings do not (unlike the example referred to by Kirby P) involve the liberty of persons and that there may be practical differences between a large corporation and a natural person facing charges brought; in the former case factors "personal" to the defendant would rarely, if ever, arise whereas they may be important, or even crucial, in the latter. I consider that in criminal cases, the approaches taken by Merkel J and Chernov JA, referred to earlier, remain in point. That is, approaching the matter in terms formulated by the High Court which includes, inter alia, taking a realistic not a hypothetical view of the issue. The test is whether there is a reasonable and not merely a fanciful apprehension of bias.

19 It is also relevant to refer to an authority that has not been earlier referred to in these reasons but which is relied upon heavily by the defendant. It is the judgment of the Court of Appeal in Carver v Law Society of NSW (1998) 43 NSWLR 71 at 99G - 100A in which, to use the words of the defendant in its submissions, "it was held that a reasonable apprehension of bias, by virtue of a tribunal member having been a member of the governing body or of a relevant committee of a body instituting proceedings [which were] subsequently dealt with by the tribunal was not overcome by virtue of the fact that the member claimed to have no recollection of participation in those prior events". I do not consider that the judgment in that matter is relevant to the determination of the issue raised in these proceedings. It involves, in my respectful view, an application of the well known rule that a person should not have, in relation to the same proceedings or issue, roles as both the "prosecutor" and as a member of the tribunal. Such a principle is well known in industrial law. That could not be said to be the situation here.

20 I should also deal with the question of waiver, although this was not a matter relied on by the defendant. Nevertheless, in light of the duty on a judge not to lightly accede to disqualification and to do so only on a firm basis being established (see Re J.R.L.; Ex parte C.J.L. at 352), it is a matter which is material and should be considered. The principle is clear. For example, In the Marriage of Murphy and Armstrong (1978) 35 FLR 482 at 488 a Full Court of the Family Court of Australia held (citing relevant authority): An application for a judge to discharge himself should be made at the earliest possible moment. If a party, expressly or impliedly, consents to a judge, previously involved or interested, continuing to act, such a party cannot afterwards object to him so acting.

See also Vakauta v Kelly (1989) 167 CLR 568 at 577 - 579, 586 - 588 and R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263. Factual background 21 In the light of the discussion of the relevant principles, it is necessary now to consider the nature of the proceedings before Cahill VP and those now before the Court. The proceedings before his Honour were entitled WorkCover Authority of New South Wales v Professional Contractors Pty Limited in Matter Nos. CT95/1343 - 1347 and WorkCover Authority of New South Wales v Concrete Constructions Group Pty Ltd t/as Concrete Constructions in Matter No. CT95/1348. The five summonses in the first matters referred to were prosecutions under s 15(1) of the Occupational Health and Safety Act 1983 and the last matter was a prosecution against the current defendant pursuant to s 16(1) of the Occupational Health and Safety Act. There is detailed reference at pages 1 and 2 of the judgment delivered by his Honour on 20 September 1996 (the proceedings having been heard on 1 August 1996) to the nature of the charges against the defendants before him.

22 The prosecution against the present defendant alleged a breach of s 16(1) of the Occupational Health and Safety Act on 12 November 1993 at the Liverpool Hospital, Liverpool, in that the defendant, being an employer, "did fail to ensure that persons not in his employment were not exposed to risks to their health or safety arising from the conduct of his undertaking while they were at his place of work". The essential particular of the alleged failure was apparently that set out in the summons in paragraph numbered (e) which alleged that "As a result of the said failures Agiros Korbakis an employee of a sub-contractor was fatally injured when a brick wall fell onto the down ramp area where he was working".

23 Cahill VP recorded that both defendants in those proceedings filed notices of motion seeking the dismissal or permanent stay of the summonses on the grounds of issue estoppel, res judicata, autrefois acquit, double jeopardy, abuse of process and in the general discretion of the Court. His Honour's judgment indicated that various counsel (including counsel for the defendant in the present proceedings) appeared for the two defendants and that I appeared with junior counsel as counsel for the prosecutor. A consideration of his Honour's judgment indicates that the issues argued, and as decided by his Honour, were whether it was open to the prosecutor to continue the proceedings then before the Court notwithstanding the fact that prosecutions previously instituted by the prosecutor against the defendants on 30 August 1994, and which were heard before Fisher CJ in the then Industrial Court, were "terminated " by the former Chief Judge on 11 August 1995.

24 His Honour discussed in some detail the similarities between the proceedings which had been before Fisher CJ and those before him. Much of his Honour's decision dealt with the course of the proceedings before Fisher CJ and a consideration of what the Chief Judge had effected in "terminating" the proceedings. His Honour also dealt with the relevant legal principles, in terms of decided cases, and the consideration of them in legal treatises such as the article by Mathew Goode entitled "Double Jeopardy" in the Laws of Australia. As would be expected, there was no consideration of the question of the guilt or innocence of either of the defendants in those proceedings and there would have not been any consideration or argument in relation to that issue in the proceedings as they developed before his Honour.

25 Cahill VP concluded (at pages 18 - 20 of the typescript judgment) as follows: Upon consideration, I am of the view that the charges possess such a degree of identicality that what in my view amounts to a dismissal of the first charge and a consequential acquittal of the defendant justifies an acceptance of the plea advanced on behalf of the first defendant of double jeopardy based on the concept of autrefois acquit.

I have reached a similar conclusion in regard to the position of the second defendant. It will be recalled that, on the first occasion, there was one summons and, on the second occasion, five summonses issued against the second defendant. All of the summonses alleged a breach of s 15(1) of the Act at the Liverpool Hospital site, Liverpool, on 12 November 1993 in that the defendant, being an employer, failed to ensure the health, safety and welfare at work of all its employees. The summonses asserted that, as a result of the alleged failure, Agiros Korbakis, an employee of the second defendant, suffered fatal injuries "when the brick wall collapsed" (original summons)or "when the brick wall fell onto the down ramp area in which he was working" (subsequent summonses). The particulars contained in the original summons are, relevantly: (d) The defendant failed to adequately instruct and supervise its employees in a safe system of work.

(e) The defendant failed to assess the risk to persons working near the wall next to which soil was deposited and to take such steps as necessary to minimise the risk.

(f) The defendant failed to give adequate instructions, supervision and warnings to the operator of a machine being used to move soil near the wall.

The particulars contained in the subsequent summons, relevantly a single particular in each summons, have already been set out. Having reviewed and considered the contents of the summonses it would again be my view in the case of the second defendant that the submission as to double jeopardy based on autrefois acquit has been made out. In the circumstances, the prosecutions now before the Commission in Court Session should not be permitted to proceed and, indeed, should be dismissed. I hold accordingly.

26 In these proceedings, the charge is that the defendant, being an employer on 26 April 1996 at the Woronora Water Filtration Plant construction site, at Waterfall, in the State of New South Wales did fail to ensure that persons not in its employment (including two named persons) were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work contrary to s 16(1) of the Act in that the defendant did fail to provide systems of work, to wit, systems of cleaning the interior of the clean water tank No. 2 that were safe and without risks to health in such case made and provided. The particulars of the charge originally provided included reference to the systems to assess the appropriate work method for cleaning the interior of the clear water tank; systems to comply with the Occupational Health and Safety (Confined Spaces) Regulation 1990; systems to assess the oxygen levels within the tank prior to work commencing; systems of on-site emergency response for persons within the tank; and that, as a result of the said failure, the two nominated employees were placed at risk of injury.

Consideration and conclusions 27 It will be recalled that in paragraph 11 of its Outline of Submissions in these proceedings the prosecutor made the following submission: At best, it would seem that the trial judge, as former counsel for one of the parties, appeared in an earlier preliminary matter concerning both parties. The matter was technical in nature and the merits of the case would not have been tested.

28 Leaving aside whether the description of the earlier matter as being "technical in nature" is a description which I should adopt, it is nevertheless clear that the proceedings before Cahill VP were limited in nature and did not deal with the merits of the case or involve any testing of the evidence in the proceedings. Obviously, they could not have involved any consideration or question of the guilt or innocence of the defendant. In any event, it is not disputed that the defendant is a large corporation involved in building and construction work on a range of different sites. It is to be noticed that the proceedings before Cahill VP involved an allegation of a breach by the defendant of the Occupational Health and Safety Act at Liverpool Hospital in relation to the building of a brick wall at that hospital. As well as the charge against the present defendant, there were five charges against a sub-contractor working at the site.

29 However, in the present proceedings, the charge is that the defendant breached the Act at the Woronora Water Filtration Plant construction site, at Waterfall, some years later by failing to ensure that persons not in its employment were not exposed to risks to their health or safety arising from the conduct of its undertaking in that the defendant failed to provide systems of cleaning the interior of the clean water tank including systems to assess the appropriate work method for cleaning the interior of the clear water tank, systems to assess the oxygen levels within the tank prior to work commencing and systems of on-site emergency response for persons within the tank. The circumstances of the two sets of proceedings have significant differences. Differences as to time, location, type of site, nature of relevant work being carried out on the site, and systems of work. It is difficult to understand the precise comparison the defendant seeks to make between the proceedings.

30 Further, the defendant seems to have put its submissions forward on the basis of a misunderstanding of the role of counsel for a prosecutor in proceedings under the Act. It is not dissimilar to the role of counsel in any proceedings, although the rules of the Bar Association relating to persons acting as a prosecutor apply. The role is not identical to the role of a Crown Prosecutor prosecuting an indictable offence; for example, there is no role in the prosecutor, as would be the case of a Crown Prosecutor appointed under the Crown Prosecutors Act 1986, in finding a true bill or filing an ex officio indictment. Accordingly, accepting the ethical obligations that apply to counsel in any proceedings, I do not consider that acceptance of a brief for a prosecutor under the Occupational Health and Safety Act and arguing of proceedings under that Act, particularly in relation to an issue of the kind heard by Cahill VP, of itself involves the necessary formation of any view as to the guilt or otherwise of a defendant the subject of the relevant proceedings.

31 I now deal with the last submissions filed by the defendant. It is to be noted that the defendant accepted at the hearing on 6 April last that the prosecutor was correct in his submission in reply as to the judgment of the Court of Appeal in Dovade Pty Limited v Westpac Banking Group. Further, I do not accept that the proposition set out in paragraph 7 of those submissions followed, or necessarily followed, from the Bar Rules set out in paragraphs 5 and 6 of that submission, or that the proposition in paragraph 7 followed in relation to proceedings of the nature of those heard before Cahill VP, being the basis of the defendant's submissions. A similar conclusion follows as to paragraph 8. I have referred earlier to the prosecutor's response in relation to paragraph 12 of the defendant's second submissions, and the reference therein to Mr Brown, and the possibility he may be a witness; I have also set out what counsel for the defendant said as to that issue. It is to be noted that the defendant expressly asked that I not read the relevant records of interview with Mr Brown but, whilst I am not critical of that approach, nevertheless one may be left with the very firm impression that the defendant in this respect may be "clutching at straws". Although, as I indicated to counsel, I have no recollection of the prosecution brief in the earlier proceedings, and while the lack of recollection may not be material (see Carver v The Law Society of New South Wales), I do not accept that if I had earlier read Mr Brown's record of interview it would necessarily follow that that fact would be relevant in the possible circumstance of Mr Brown giving evidence in these proceedings.

32 Turning now to the defendant's first set of submissions, it is to be observed there is no submission put on the ground of alleged actual bias. The crux of those submissions is to be found in paragraph 11 thereof where the defendant's "fear" is that the Court, as presently constituted, "may find such a resonance with the allegations being put" by the prosecutor in these proceedings such as would predispose the Court to accepting them more readily than might otherwise be the case. The operative word appears to be the word "resonance". It seems to me that the prosecutor's submissions provide a complete answer to the defendant's application. For example, the prosecutor submits, correctly in my view, that there is no identifiable live issue which confronts the trial judge and about which the judge has earlier expressed clear views (or any views). Similarly, there are no identifiable credit issues about which the judge has earlier expressed views or would have a view. Further, as indicated in paragraph 10 of the prosecutor's submissions, "the grounds for disqualification upon which the present application appear to lie are vague and entirely speculative". This view is confirmed by the defendant's formulation of its objection, including its reliance upon "resonance". As the prosecutor submits, at best from the defendant's point of view, the trial judge appeared in an earlier preliminary matter relating to the defendant. The matter was interlocutory in nature, and involved consideration of the issues in terms of the application of relevant legal principles. It did not involve consideration of the merits of the matter. Finally in relation to the prosecutor's submissions, I should indicate that I accept as correct its approach to the three judgments in respect of which submissions were invited and the conclusion drawn from them for these proceedings. See paragraphs 4 and 5 of the prosecutor's second submissions as set out in paragraph 6 above.

33 It will be recalled that Chernov JA in R v Nicholas referred to the inappropriateness of a judge disqualifying himself or herself in circumstances where there was a "fanciful or fantastic apprehension". I would not go so far as to describe the grounds for the defendant's application in terms of the latter adjective. However, they come close to being accurately described by the former adjective.

34 I deal finally with the question of waiver. The extract from In the Marriage of Murphy and Armstrong in paragraph 20 above makes clear that a party by its conduct, acts or omissions, can waive any rights it might have to seek disqualification, that is, by not taking the point at the earliest reasonable time. In my view, that is the situation here. The defendant waived any objection in this matter by not taking it prior to, or at the commencement of, the interlocutory proceedings which occurred in this matter and were the subject of decision on 20 May 1999. It is also relevant to note that, in relation to those proceedings, I granted an application by the defendant, overruling an objection thereto by the prosecution, that I refer to a Full Bench of the Court a question of law arising out of that decision (effectively the decision itself) pursuant to s 196 of the Industrial Relations Act 1996 and s 5AE of the Criminal Appeal Act 1912. It follows that I reject the present application on this further basis. Orders 35 It is appropriate, in conclusion, to formally make the orders foreshadowed on 6 April 2000. I therefore make the following orders: 1. The application made by the defendant on 9 March 2000, having been treated as being made by notice of motion on that date, is dismissed.

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