AZ v The Age [No 2]

The plaintiff, AZ, applied for the disqualification of the trial judge in a common law negligence proceeding, citing apprehended bias. The case was heard in the Supreme Court of Victoria, where the plaintiff argued that the judge had already displayed bias in a previous case involving a different plaintiff. This application was made on the basis of the accumulative effect of a multitude of matters, including the judge’s previous decisions and conduct. The court was required to determine whether the fair-minded lay observer, having knowledge of all the material facts, would apprehend bias in the judge's impartiality.

The court considered whether the fair-minded lay observer would apprehend bias from the judge's previous conduct and decisions. The plaintiff submitted that the judge had shown a pattern of behaviour that indicated a lack of impartiality. However, the court found that while the judge had made critical comments about the plaintiff's legal representatives in previous cases, these comments did not reflect a lack of impartiality towards the plaintiff personally. The court noted that the comments were made in the context of legal proceedings and did not suggest a predisposition to rule against the plaintiff on the merits of the case. The judge’s previous conduct, while critical, did not amount to a reasonable apprehension of bias.

Given the evidence and submissions, the court dismissed the application for the disqualification of the trial judge. The court held that the fair-minded lay observer, having knowledge of all the relevant facts, would not apprehend that the judge was biased against the plaintiff. The court emphasised that the apprehension of bias must be based on the judge's actual conduct and not on hypothetical concerns or past criticisms unrelated to the current proceedings. The application was dismissed, and the case proceeded before the originally assigned judge.