BHP Billiton Ltd v District Court of South Australia - [2012] SASC 62

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
BHP BILLITON LTD v DISTRICT COURT OF SOUTH AUSTRALIA & ANOR
[2012] SASC 62
Judgment of The Honourable Justice Gray
20 April 2012
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - BIAS - APPREHENSION OF BIAS
BHP Billiton Ltd sought an order for judicial review in the form of an order for prohibition to prevent Judge McCusker from hearing District Court action 238 of 2012 and an order in the form of certiorari, setting aside a costs order made by Judge McCusker - the defendants were the District Court of South Australia and Willem Michael Adrianus van Soest - in District Court action 238 of 2012, Mr van Soest claims damages against BHP Billiton Ltd for negligence, breach of statutory duty and breach of contract which breaches were said to have caused Mr van Soest to suffer from mesothelioma - the District Court action 238 of 2012 was listed before Judge McCusker - an application was made for Judge McCusker to withdraw from the District Court proceeding because of a reasonable apprehension of bias by reason of prejudgment - Judge McCusker dismissed this application - whether Judge McCusker should be disqualified from hearing District Court action 238 of 2012 on the ground of a reasonable apprehension of bias - whether necessity requires Judge McCusker to hear the matter.
Held: Application granted - Judge McCusker disqualified from hearing District Court action 238 of 2012 on the ground of a reasonable apprehension of bias - a fair-minded lay observer might reasonably apprehend prejudgment - the requirements of the principle of necessity were not satisfied.
Dust Diseases Act 2005 (SA) s 5 and s 8, referred to.
Hamilton v BHP Billiton Ltd [2012] SADC 25; Livesey v New South Wales Bar Association (1983) 151 CLR 288; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Australian National Industries Ltd v Spedley Securities Ltd (In Liq) (1992) 26 NSWLR 411, considered.

BHP BILLITON LTD v DISTRICT COURT OF SOUTH AUSTRALIA & ANOR
[2012] SASC 62
Civil
GRAY J.
Introduction

In this proceeding the plaintiff, BHP Billiton Ltd, seeks judicial review in the form of an order for prohibition to prevent Judge McCusker from hearing District Court action 238 of 2012 and an order in the form of an order for certiorari, setting aside an order of the Judge made on 3 April 2012 that BHP[1] pay the costs of the second defendant, Willem Michael Adrianus van Soest, of the argument of that day. The defendants to the proceedings are the District Court of South Australia and Mr van Soest.
[1] For convenience generally in these reasons BHP Billiton Ltd is referred to as BHP.
The principle issue arising in this proceeding is one of prejudgment in the circumstance where Judge McCusker delivered judgment following a trial in Hamilton v BHP Billiton Ltd[2] and where Judge McCusker is to preside in the trial of Van Soest v BHP Billiton Ltd on 19 April 2012. More particularly, if Judge McCusker were to preside in Van Soest v BHP Billiton Ltd might a fair-minded lay observer[3] reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the determination of the issues arising in Van Soest v BHP Billiton Ltd. In posing the question in these terms, I have drawn on the test as articulated by Gummow ACJ, Hayne, Crennan and Bell JJ in Michael Wilson & Partners v Nicholls.[4]
[2]    Hamilton v BHP Billiton Ltd [2012] SADC 25.
[3]    It should be noted that in Michael Wilson & Partners Ltd v Nicholls (2011) 86 ALJR 14, the High Court used the phrase "fair-minded lay observer".
[4]    Michael Wilson & Partners Ltd v Nicholls (2011) 86 ALJR 14.
In District Court action 238 of 2012, Mr van Soest claims damages against BHP for negligence, breach of statutory duty and breach of contract which breaches were said to have caused Mr van Soest to suffer from mesothelioma, a condition linked with exposure to asbestos. BHP has denied liability.
On 3 April 2012, Judge McCusker heard BHP’s application seeking that Judge McCusker withdraw from the District Court proceeding because of a reasonable apprehension of bias said to arise from his findings and conclusions in his reasons for judgment in the matter of Hamilton v BHP Billiton Ltd.[5] The Judge dismissed the application and made an order that BHP pay the costs of the hearing that day. On 5 April 2012, the Judge delivered reasons for his orders.
[5] Hamilton v BHP Billiton Ltd [2012] SADC 25.
The within proceedings for judicial review issued on 4 April 2012 were heard on 12 and 13 April 2012. Counsel advised that the District Court did not intend to make any submissions in the proceeding and would abide the order of the Court. Mr van Soest opposed any orders for judicial review.
At the hearing, BHP tendered a case book which contained relevant documents including a copy of the second statement of claim and defence in District Court action 238 of 2012 together with affidavits from the solicitor representing BHP. A copy of the transcript of the argument of 3 April 2012 was marked for identification. An affidavit from another solicitor representing BHP dealing with the topic of necessity was also received. There was no objection taken to the tender of this material. In setting out the history to the judicial review proceedings, I have drawn from the case book and the reasons of Judge McCusker.
On 29 February 2012 following a trial before Judge McCusker, judgment was entered in the matter of Hamilton v BHP Billiton Ltd[6] for the plaintiff. That decision is apparently the subject of an appeal to the Full Court of this Court.
[6] Hamilton v BHP Billiton Ltd [2012] SADC 25.
In February 2012, the actions of Heath v BHP Billiton Ltd and Van Soest v BHP Billiton Ltd were allocated to Judge Parsons, a Judge of the Industrial Relations Court. Both Mr Heath and Mr van Soest alleged that they had suffered mesothelioma as a result of BHP’s negligence. Mr Heath was employed by BHP in its Whyalla shipyards for some nine months between 1962 and 1967. Mr van Soest was employed at the same shipyards in 1962.
Orders were made for urgent hearings before Judge Parsons. In Mr Heath’s matter, a trial was set down for late March 2012. However, Judge Parsons became ill and in mid-March 2012 both matters were transferred to Judge McCusker’s list. Mr Heath’s trial commenced on 26 March 2012 and following the plaintiff’s evidence, the proceeding settled.
In Van Soest v BHP Billiton Ltd, BHP filed an affidavit seeking an order that the Court appoint an examiner to take the evidence of the plaintiff as soon as practicable. On 28 March 2012, Judge McCusker heard that application, made interlocutory orders and adjourned further consideration to 3 April 2012. On 29 March 2012, BHP informed the Judge that at the hearing on 3 April 2012, BHP would make an application for the Judge to recuse himself from further hearing the matter. The grounds for this application were summarised by Judge McCusker in the following terms:
-The factual issues arising in Hamilton were the same or similar to the factual issues arising in Van Soest.
-One factual issue arising in Hamilton was the levels of asbestos dust in the deceased’s work place. The evidence of this was the subject of testimony of some five workmen engaged in the work place at or about the time and two occupational hygienists, a Mr Kottek and a Mr Rogers.
-The issue of the asbestos dust levels in the workplace in Hamilton was resolved in the plaintiff’s favour essentially by acceptance of the direct testimony of the workers and by preference of the expert testimony of Mr Kottek over the defendant’s witness Mr Rogers.
-Regarding foreseeability, the Court’s statutory interpretation of s 8(2) of the Dust Diseases Act 2005 was contrary to the one contended by the defendant.
-On causation in Hamilton the expert medical evidence of Professor Henderson as to the causes of mesothelioma had been accepted.
[Footnote omitted.]
Judge McCusker refused to recuse himself from hearing and determining the proceedings for two reasons – that no reasonable apprehension of prejudgment arose and even if such an apprehension had arisen, the Judge was required to hear and determine the proceedings according to the doctrine of necessity.
Hamilton v BHP Billiton Ltd
The application for disqualification arose from findings made in reasons for judgment delivered by Judge McCusker in Hamilton v BHP Billiton Ltd[7] on 29 February 2012.
[7] Hamilton v BHP Billiton Ltd [2012] SADC 25.
In Hamilton v BHP Billiton Ltd,[8] the deceased worker was employed as an apprentice electrician and an electrician in a number of Scottish shipyards between 1956 and 1964 and later obtained employment as an electrician at BHP’s Whyalla shipyard between 1964 and 1965. The deceased subsequently contracted mesothelioma, from which he died. His widow brought proceedings against BHP claiming damages on the basis that BHP had negligently and in breach of duty exposed the deceased to excessive quantities of asbestos in his employment at Whyalla and that his mesothelioma was caused or contributed to by that exposure. This claim was upheld by Judge McCusker.
[8] Hamilton v BHP Billiton Ltd [2012] SADC 25.
Van Soest v BHP Billiton Ltd
Mr van Soest claims damages, exemplary damages and interest as a consequence of the negligence, breach of statutory duty and breach of contract by BHP. The following is a brief summary of his claim. Mr van Soest alleges that between 3 July and 21 September 1962, he was employed by BHP at the fitting out wharf at its Whyalla shipyard as a painter and docker. During this period, he was required to handle, cut, install, sweep up and work with insulation materials containing asbestos. Mr van Soest was also required to work in the vicinity of other persons handling, cutting, installing and working with installation materials containing asbestos. As a consequence of the foregoing, Mr van Soest alleges that he was exposed to and inhaled asbestos dust and fibre.
Mr van Soest further alleges that during his employment, BHP knew or ought to have known that exposure to asbestos dust and fibre carried with it a foreseeable risk of injury. Mr van Soest contends that BHP was negligent by failing to provide a safe place of work and in particular, by failing to take a number of steps to protect Mr van Soest from inhaling asbestos dust and fibres. Extensive particulars of breach of duty have been pleaded, including the allegation that the failure to take steps to reduce the level of asbestos dust and fibre in the atmosphere by the failure to provide appropriate masks or respirators to minimise inhalation, the failure to provide appropriate protective clothing and the failure to provide appropriate vacuuming equipment.
Mr van Soest alleges that as a consequence of his exposure to asbestos dust and fibres he has contracted malignant mesothelioma and has suffered injury, loss and damage. It is further alleged that the injury, loss and damage is as a result of the negligence of BHP, its breach of statutory duty and its breach of contract.
Judicial Review Proceedings
BHP submits that Mr van Soest’s proceedings are likely to involve a significant overlap with Hamilton v BHP Billiton Ltd[9] both as to evidence to be led and issues to be determined. That overlap, it was said, will extend to lay, scientific and medical evidence and to both oral and documentary evidence. The extent of overlap was said to extend to the following issues – exposure to asbestos, reasonable foreseeability, breach and causation.
[9] Hamilton v BHP Billiton Ltd [2012] SADC 25.
Mr van Soest contended that any degree of overlap between the proceedings was not such as to give rise to any reasonable fear of prejudgment. Further and in the alternative, Mr van Soest contends that the doctrine of necessity has application.
Legal Principles
In Livesey v New South Wales Bar Association, the Court observed:[10]
Necessity and the extraordinary case (see, e.g., Ex parte Lewin; Re Ward) make it impossible to lay down an inflexible rule; each case must be determined by reference to its particular circumstances. It is, however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact. The consideration that the relevant question of fact may be conceded or that the relevant person may not be called as a witness if the particular judge sits would not, of course, avoid the appearance of bias. To the contrary, it would underline the need for the judge to refrain from sitting.
[Footnote omitted.]
[10] Livesey v New South Wales Bar Association (1983) 151 CLR 288, 299-300.
This statement of principle has been endorsed by the High Court in a number of authorities, most recently in British American Tobacco Australia Services Ltd v Laurie[11] and in Michael Wilson & Partners Ltd v Nicholls.[12]
[11] British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283.
[12] Michael Wilson & Partners Ltd v Nicholls (2011) 86 ALJR 14.
In British American Tobacco Australia Services Ltd v Laurie, Heydon, Kiefel and Bell JJ relevantly observed:[13]
It is fundamental to the administration of justice that the judge be neutral. It is for this reason that the appearance of departure from neutrality is a ground of disqualification. Because the rule is concerned with the appearance of bias, and not the actuality, it is the perception of the hypothetical observer that provides the yardstick. It is the public's perception of neutrality with which the rule is concerned. In Livesey it was recognised that the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case. It is a recognition of human nature.
…
Whenever a judge is asked to try an issue which he or she has previously determined, whether in the same proceedings or in different proceedings, and whether between the same parties or different parties, the judge will be aware that different evidence may be led at the later trial. Judge Curtis's express acknowledgment of that circumstance does not remove the impression created by reading the judgment that the clear views there stated might influence his determination of the same issue in the Laurie proceedings. Allsop P's conclusion was correct. In addition to the possibility of the evidentiary position changing, a reasonable observer would note that the trial judge's finding of fraud was otherwise expressed without qualification or doubt, that it was based on actual persuasion of the correctness of that conclusion, that while the judge did not use violent language, he did express himself in terms indicating extreme scepticism about BATAS's denials and strong doubt about the possibility of different materials explaining the difficulties experienced by the judge, and that the nature of the fraud about which the judge had been persuaded was extremely serious. In the circumstances of this unusual case, a reasonable observer might possibly apprehend that at the trial the court might not move its mind from the position reached on one set of materials even if different materials were presented at the trial – that is, bring an impartial mind to the issues relating to the fraud finding. Johnson v Johnson is distinguishable.
[Footnotes omitted. Emphasis added.]
[13] British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283, [139], [145].
In Michael Wilson & Partners Ltd v Nicholls, Gummow ACJ, Hayne, Crennan and Bell JJ addressed the matter in the following terms:[14]
It has been established by a series of decisions of this Court[15] that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (in this case, in the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. No party to the present appeal sought in this Court, or in the courts below, to challenge that this was the test to be applied.
As the plurality in Johnson v Johnson[16] explained, "[t]he hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues".
Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias. The respondents did not submit in this Court or in the courts below that the trial judge had in fact prejudged any issue.
[14] Michael Wilson & Partners Ltd v Nicholls (2011) 86 ALJR 14, [31]-[33].
[15] See, eg, Livesey v NSW Bar Association (1983) 151 CLR 288, 57 ALJR 420; Johnson v Johnson (2000) 201 CLR 488, 74 ALJR 1380; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 75 ALJR 277; Smits v Roach (2006) 227 CLR 423, 80 ALJR 1309; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577, 81 ALJR 352; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283, 85 ALJR 348.
[16] Johnson v Johnson (2000) 201 CLR 488 at [12], 74 ALJR 1380.
As earlier noted, BHP submitted that overlap arose on four issues. Before coming to discuss the significance of the Judge’s findings, it is appropriate to provide some detail about the suggested overlap.
Overlap – Exposure to Asbestos
Mr van Soest alleges exposure at Whyalla in 1962 from both direct and bystander exposure when assisting laggers in the engine room. He also alleges exposure as a result of sweeping up duties and when assisting with work on the “marinate” board. In Hamilton v BHP Billiton Ltd,[17] Ms Hamilton also alleged bystander exposure as a result of lagging activities carried out while Mr Hamilton was working on ships at Whyalla in 1964 to 1965.
[17] Hamilton v BHP Billiton Ltd [2012] SADC 25.
In respect of this issue, BHP submitted that the level of Mr Hamilton’s exposure in 1964 to 1965 as an electrician was not necessarily the same as the level of exposure of Mr van Soest in 1962 as a painter and docker. The typical approach of plaintiffs in litigation of this sort has, however, been to lead evidence from a number of former workers for the purpose of proving the level of exposure of the worker in question; irrespective of whether those workers were in the same trade or working at the same time as that person. BHP has objected to this approach in the past, albeit unsuccessfully; as may be seen in Hamilton v BHP Billiton Ltd.[18] In that decision, the evidence which Judge McCusker relied upon, to the effect that the conditions were “shocking”, came from Mr Shraple who worked as an apprentice boilermaker and a boilermaker at Whyalla between 1954 and early 1964. Despite Mr Shraple not having been a worker at Whyalla at the time Mr Hamilton worked there, Judge McCusker relied upon Mr Shraple’s evidence when making findings of the conditions when Mr Hamilton was at Whyalla performing his work as an electrician.
[18] Hamilton v BHP Billiton Ltd [2012] SADC 25.

Mr van Soest’s period of employment overlaps with that of Mr Shraple. Consequently, the reliability of his description, at least if taken as extending to all of the ships over the period 1959 to 1964 and extending to all of the trades working in the ships, is said to be directly in issue. Judge McCusker made positive credit findings about Mr Shraple and specifically rejected the suggestion by BHP that his evidence was not reliable.
Finally on this issue, it is relevant to address the question of expert testimony. In Hamilton v BHP Billiton Ltd,[19] two occupational hygienists gave expert evidence – Mr Rogers for BHP and Mr Kottek for the plaintiff. BHP sought to demonstrate through evidence of Mr Rogers that Mr Hamilton’s level of exposure would have been well below the then National Health and Medical Research Council maximum allowable concentration standard. Relevant to the analysis undertaken by Mr Rogers were subsidiary issues of a technical nature, including the extent to which worker reports of “visible dust” could be given some numerical significance and the degree to which any fibre released would spread out and be dissipated inside the engine rooms of the ships. In his judgment in Hamilton v BHP Billiton Ltd[20] Judge McCusker was highly critical of Mr Rogers. He found Mr Rogers used a method to estimate Mr Hamilton’s exposure that was not scientifically valid. He also preferred Mr Kottek’s views on questions as to the visibility of dust and the dilution factor[21] for bystanders. He concluded that Mr Rogers had at times taken on the role of an advocate for BHP.
[19] Hamilton v BHP Billiton Ltd [2012] SADC 25.
[20] Hamilton v BHP Billiton Ltd [2012] SADC 25.
[21] I use the term “dilution factor” to mean the degree to which any fibre released would spread out and be dissipated inside the engine rooms of the ships.
Overlap – Reasonable Foreseeability
On the issue of reasonable foreseeability, the plaintiff’s position in Hamilton v BHP Billiton Ltd[22] was based on extracts from scientific publications concerning the dangers of asbestos which, it was said, demonstrated that the level of exposure allegedly experienced by Mr Hamilton was regarded in 1964 and 1965 as putting him at risk of contracting an asbestos-related disease.
[22] Hamilton v BHP Billiton Ltd [2012] SADC 25.
BHP sought to answer these contentions by tendering material from the National Health and Medical Research Council. It was said that this material demonstrated that the National Health and Medical Research Council had at material times issued a relevant standard. BHP contended that the standard represented the best evidence at the time of what was perceived as a safe level of exposure. Accordingly, it was said that Ms Hamilton could not establish that the level of Mr Hamilton’s exposure exceeded the standard and that her case on reasonable foreseeability failed. BHP further relied on the materials of the National Health and Medical Research Council to establish that BHP had not reacted to the publications relied on by Ms Hamilton in the way that was suggested by Ms Hamilton. BHP also relied on other publications which were said to demonstrate that the risks were not perceived in the way contended by Ms Hamilton.
Judge McCusker rejected BHP’s analysis of the literature. Rather, his Honour concluded that the literature relied on by Ms Hamilton demonstrated recognition of a significant degree of risk, even to bystanders. In relation to the National Health and Medical Research Council’s material, Judge McCusker concluded that the Council had been less than prompt in its handling of the issue and that a reasonable employer in BHP’s position was required to go beyond the standards recommended by the National Health and Medical Research Council. The Judge found that had such a reasonable employer done so, they would have drawn a number of conclusions from the literature. It was said that it was those conclusions which formed the basis of the Judge’s conclusion that BHP ought to have realised that Mr Hamilton was at risk.
Overlap – Breach of Duty
On the issue of breach of duty, in Hamilton v BHP Billiton Ltd[23] Judge McCusker found in favour of the plaintiff. It was contended by BHP that the Judge’s findings were to the effect that BHP’s conduct fell short of what was required of a reasonable employer having regard to the known risks at the time.
[23] Hamilton v BHP Billiton Ltd [2012] SADC 25.
BHP drew attention to the observations of Judge McCusker which were said to be to the following effect. That not to tell workers of the risks which the Judge considered existed would involve treating these workers like “helots”. That it would be “obtuse” for anyone not to have perceived the risks his Honour thought could be discerned from the published literature. That if BHP had invested “a fraction” of the time that it had invested in defending Hamilton v BHP Billiton Ltd[24] in undertaking “sensible and warranted” investigations at the time, the danger to BHP’s workers would have been obviated.
[24] Hamilton v BHP Billiton Ltd [2012] SADC 25.
Overlap – Causation
In respect of causation, the evidence disclosed that Mr Hamilton had greater exposure to asbestos in Scotland than in Whyalla. Expert evidence given by Professor Henderson was to the effect that if there are multiple exposures to asbestos of a substantial nature and mesothelioma subsequently develops, then each of the exposures must be taken to have caused or contributed to the development of that mesothelioma. BHP did not dispute the evidence of Professor Henderson and the scientific publications regarding what is known of aetiology of the mesothelioma. However, BHP submitted that the scientific evidence did not support the proposition that all exposure is causative. Instead, it was contended that Professor Henderson’s evidence was that any substantial exposure correspondingly increased the risk of developing mesothelioma. Judge McCusker rejected the contentions of BHP.
BHP’s Further Submission
BHP placed particular emphasis on Judge McCusker’s comments on the expert Mr Rogers. While it was accepted that findings on the evidence presented by frequently appearing expert witnesses gives rise to special considerations, it was said that the Judge’s findings in Hamilton v BHP Billiton Ltd[25] went beyond merely a rejection of Mr Roger’s evidence in that case. Rather Judge McCusker found that the entire scientific approach being pursued by Mr Rogers was invalid. The Judge rejected Mr Rogers’ evidence. Most importantly, the Judge was highly critical of the credit and independence of Mr Rogers, asserting he was an advocate for BHP.
[25] Hamilton v BHP Billiton Ltd [2012] SADC 25.
If there were any doubt as to the finality of the Judge’s findings in Hamilton v BHP Billiton Ltd,[26] in BHP’s submission it was dispelled by the clear and definitive way in which the Judge expressed himself. It was pointed out that the Judge’s findings extended to the making of gratuitous and intemperate comments which might reasonably be regarded by a fair-minded lay observer as disparaging aspects of the BHP defence in Hamilton v BHP Billiton Ltd.[27] If there were any doubt about the reaction of a fair-minded lay observer, it was claimed that these comments would set the seal on a conclusion that, having expressed himself so clearly and definitively in his judgment in Hamilton v BHP Billiton Ltd,[28] there might be a reasonable apprehension that the Judge might not be able to put his findings aside for the purpose of determining the parallel issues in this proceeding.
[26] Hamilton v BHP Billiton Ltd [2012] SADC 25.
[27] Hamilton v BHP Billiton Ltd [2012] SADC 25.
[28] Hamilton v BHP Billiton Ltd [2012] SADC 25.
Mr van Soest’s Submission
In the present proceeding, Mr van Soest submitted that no basis had been shown for an apprehension of bias on the part of Judge McCusker. It was said that the Judge’s extensive and careful findings demonstrated that the Hamilton v BHP Billiton Ltd[29] decision was based on an analysis of evidence in that matter. It was submitted that a fair-minded lay observer would understand that Judge McCusker would decide Mr van Soest’s claim having regard to the evidence led and submissions made in Van Soest v BHP Billiton Ltd. It was contended that having regard to the authorities addressing prejudgment bias, a fair-minded lay observer would understand that Judge McCusker would bring an independent mind to his review of the evidence led and would be able to make findings, if justified, that were different from the findings made in Hamilton v BHP Billiton Ltd.[30] It was accepted that a fair-minded lay observer would note the expressions used by Judge McCusker of “helots” and “obtuse” and his comments in regard to irony. It was said, however, that a reading of Judge McCusker’s reasons clearly demonstrated that these were not statements directed at BHP or about BHP, but could be properly characterised as hypothetical asides.
[29] Hamilton v BHP Billiton Ltd [2012] SADC 25.
[30] Hamilton v BHP Billiton Ltd [2012] SADC 25.
Mr van Soest accepted that Judge McCusker had been critical of Mr Rogers when rejecting his testimony and in particular, that he had described Mr Rogers as taking on the role of an advocate for BHP. It was pointed out, however, that those remarks were made by the Judge having regard to the manner in which Mr Rogers gave his evidence. It was said that if that manner was not displayed when Mr Rogers gave evidence in Van Soest v BHP Billiton Ltd, a fair-minded lay observer would not have any concerns that the Judge would independently and fairly weigh and assess Mr Roger’s evidence in Van Soest v BHP Billiton Ltd without any prejudgment.
A Consideration of the Issues
The Court was informed that a number of witnesses in Hamilton v BHP Billiton Ltd[31] would in all probability be witnesses presented in Van Soest v BHP Billiton Ltd. Those witnesses would include the lay witness, Mr Shraple, and the expert witnesses, Mr Kottek and Mr Rogers.
[31] Hamilton v BHP Billiton Ltd [2012] SADC 25.
Mr Shraple worked as an apprentice boilermaker and a boilermaker at Whyalla between 1954 and 1964. In Hamilton v BHP Billiton Ltd,[32] Judge McCusker accepted the evidence of Mr Shraple and relied on that evidence to conclude that conditions of asbestos dust and fibres were “shocking” at the time that Mr Hamilton was alleged to have been exposed in 1964 and 1965. It may be anticipated that Mr Shraple will give evidence on the same topic in Van Soest v BHP Billiton Ltd and that Judge McCusker will be invited to find that the conditions were shocking at the time of Mr van Soest’s employment in 1962. Judge McCusker made further use of Mr Shraple’s evidence in Hamilton v BHP Billiton Ltd[33] by comparing the conditions so found at the time of Mr Shraple’s employment with the conditions in 1968 when reported on by Dr Wilson, a senior medical officer with the South Australian Department of Health. Dr Wilson’s report was said to have indicated a state of affairs much different than that which could be described as shocking. The Judge reasoned that at some time between 1964 and 1968, BHP had taken steps to reduce the level of asbestos dust and fibres in the atmosphere. BHP proposes to challenge the reliability of Mr Shraple’s evidence in Van Soest v BHP Billiton Ltd. Attention was drawn to the Judge’s clear and unequivocal acceptance of Mr Shraple’s evidence. In the circumstances, a fair-minded lay observer might apprehend that at the trial, the Court might not move its mind from the position reached in Hamilton v BHP Billiton Ltd.[34] To adopt the wording of the Court in Livesey v New South Wales Bar Association[35] – a fair-minded lay observer might entertain a reasonable apprehension of bias by reason of prejudgment if Judge McCusker presides in Van Soest v BHP Billiton Ltd after he has in Hamilton v BHP Billiton Ltd[36] expressed a clear view about a question of fact which constitutes a live and significant issue in Van Soest v BHP Billiton Ltd and further, has made findings as to credit of the witness, Mr Shraple, whose evidence is of significance on that question of fact.
[32] Hamilton v BHP Billiton Ltd [2012] SADC 25.
[33] Hamilton v BHP Billiton Ltd [2012] SADC 25.
[34] Hamilton v BHP Billiton Ltd [2012] SADC 25.
[35] Livesey v New South Wales Bar Association (1983) 151 CLR 288.
[36] Hamilton v BHP Billiton Ltd [2012] SADC 25.
Mr van Soest sought to blunt this criticism by informing the Court that it would not be contended that Judge McCusker was correct to conclude that BHP had taken steps to reduce the level of asbestos dust and fibres between the time of Mr Shraple’s observations and the report of Dr Wilson in 1968. A similar submission was addressed by the Court in Livesey v New South Wales Bar Association in the terms extracted above and now repeated:[37]
… The consideration that the relevant question of fact may be conceded or that the relevant person may not be called as a witness if the particular judge sits would not, of course, avoid the appearance of bias. To the contrary, it would underline the need for the judge to refrain from sitting.
[37] Livesey v New South Wales Bar Association (1983) 151 CLR 288, 300.
The evidence of Mr Kottek called by Ms Hamilton and that of Mr Rogers called by BHP, as discussed above, differed on important questions including the level of asbestos dust and fibres in the atmosphere and in particular, Mr Rogers expressed the opinion that Mr Hamilton’s level of exposure would have been below the maximum allowable concentration specified in the standard published by the National Health and Medical Research Council. As noted above, the Judge decided not to accept the evidence of Mr Rogers.
Practice Direction 5.4 in the District Court Practice Directions relevantly provides:
5.4.1These guidelines are not intended to address exhaustively all aspects of an expert’s report and an expert’s duties. Reference should also be made to Rule 160.
5.4.2These guidelines, however, must be complied with for an expert to comply with Rule 160(3)(e).
5.4.3 General Duty to the Court:
5.4.3.1An expert witness has an overriding duty to assist the Court on matters relevant to the expert’s area of expertise.
5.4.3.2 An expert witness is not an advocate for a party.
5.4.3.3An expert witness’s paramount duty is to the Court and not to the person retaining the expert.
5.4.4 The Form of the Expert Report:
…
5.4.4.7The expert’s report will contain an acknowledgement at the commencement of the expert’s report that the expert has been provided with copies of Rule 160 and this Practice Direction prior to preparing the expert’s report and that the expert has read it and understood it.
5.4.4.8At the end of the report the expert should declare that (the expert) has made all the inquiries which “(the expert) believes are desirable and appropriate and that no matters of significance which (the expert) regards as relevant have, to (the expert’s) knowledge, been withheld from the Court.”
It was accepted before this Court that Mr Rogers was aware of the terms of the Practice Direction and had acknowledged that awareness.
Judge McCusker was highly critical of Mr Rogers concluding that “Mr Rogers’ approach to his task in this case on occasions fell into advocacy for the defendant”.[38] To put this observation into context, it is necessary to set out the following paragraphs from the Judge’s reasons:[39]
The sixth assumption is rejected. That is because Mr Rogers’ data was an inappropriate basis for a multi-level worksite where the dust was being created at multiple levels and from multiple sources at once. That of course makes the eighth assumption necessarily wrong, as well as being based on figures Harries would not vouch for in circumstances other than the one he measured. I would also add that given the attention the topic received in America as indicated by the “US Navy Maritime Commission Minimum Requirements for Safety and Industrial Health in Contract Shipyards 1943,” Lawrence’s paper to the Thirty Second National Safety Congress of the United States in 1944, and the Fleischer report, there is justification for Mr Kottek’s concern that the American figures may have been taken in circumstances of forced ventilation. Referring to the Murphy report which found the average exposure at 7.2mppfc, this justifies the comment by Mr Kottek that Mr Rogers severely underestimated components of his calculation. It supports a view put by the plaintiff that Mr Rogers in this case failed the level of detached and even-handed approach required of expert testimony. I will return to this later.
The bystander evidence of Mr Rogers setting the figure at 10 per cent while in the boiler room as indicated is rejected. Again he has in my conclusion significantly underestimated and failed to take due consideration of contrary data pointed to by Mr Kottek. His analysis takes no proper account of the circumstances that existed in the deceased’s work area. There were multiple levels with lagging being performed above, beside and below. There were many sources of the dust, not one as in his “model”. Those sources were occurring at the one time. I am not prepared to draw on the Donovan paper. I remain unconvinced that it has the requisite authority. Indeed I was not impressed by Mr Rogers’ grounds for validating it. On the bystander topic I prefer the evidence of Mr Kottek, so far as it is consistent with the direct evidence. I agree with Mr Kottek’s conclusion that the bystander effect, though necessarily variable would have been at concentrations that were much higher than suggested by Mr Rogers.
Finally I reject Mr Rogers’ testimony in respect to the estimate of concentration to be taken from the reports of visible dust. I find both on the basis of Hemion and on the basis of Mr Kottek’s own experiments that visible dust indicated concentrations above 5mppcf. Mr Kottek’s evidence, which I accept, is that his tests invariably produced concentrations above that figure using the impinger. I also accept Mr Kottek’s evidence he was unable to say that in his opinion the dust concentrations in the engine room during the period of the deceased’s employment would have exceeded 5mppcf on a time-weighted average basis. For much the same reason the retrospective calculation is rejected, any positive assertion on this matter was too problematic to make such a finding. This is of importance as I am satisfied that for much of the time it was in excess of 5mppcf but to extrapolate that to a 40 hour equivalent without the confirmation of Mr Kottek is to take the evidence beyond a conclusion it can support. That said I reject any contention that the evidence proves it was below 5mppcf. The situation is that no-one can tell.
I note other matters that reinforced my conclusion to prefer Mr Kottek over Mr Rogers. Firstly the personal derogatory remarks by Mr Rogers about Mr Kottek in his report indicated to me the less than a detached attitude by Mr Rogers in the task. In contrast Mr Kottek gave his evidence in a measured way and took time and care to consider each proposition put to him. There was no advocacy, as demonstrated by his concession the level of dust could not be now measured at above 5mppcf time-weighted with the required confidence. On the other hand the fact Mr Rogers relied on Google and did not disclose it, was to say the least unsettling in respect to my confidence in him.
Mr Rogers’ initial wrong assertion about the Musgrave Range involving minimal asbestos lagging was concerning. But also his immediate reaction that it did not matter anyway. Further he did not acknowledge the significance of Fleischer’s statement that the Dreessen standard of 5mppcf was not applicable to pipe insulation workers, in my view a highly relevant statement. His exclusion of Harries on the grounds that the Royal Navy was involved in limpet removal not being a feature of the Whyalla work was in my view inappropriately selective. The Harries data was relevant and deserving of consideration in his analysis. He gave inadequate account of Murphy and his reduction of the Balzer and Cooper figures by 50 per cent in the circumstances to accord with his figure of 1.8f/ml was unconvincing. He used a dilution factor that given the circumstances of both multi-level and multi-source was simply a failure to represent the actual situation. He completely ignored the direct evidence of the workers who were there of the very dusty conditions and indeed sought to suggest his expert opinion was preferable to their evidence. His inclusion of an error factor of 50 per cent on the 5mppcf was an exaggeration. I regard Mr Rogers’ approach to his task in this case on occasions fell into advocacy for the defendant. I reject his conclusions.
[Emphasis added. Footnotes omitted.]
[38] Hamilton v BHP Billiton Ltd [2012] SADC 25, [335].
[39] Hamilton v BHP Billiton Ltd [2012] SADC 25, [331]-[335].

It may be seen that the Judge’s criticisms included Mr Rogers’ adoption of the role of advocate on occasions and his non-disclosure of source material. When regard is had to the terms of the practice direction, it is apparent that the Judge had found that Mr Rogers breached the duty that he owed to the Court by taking on the role of an advocate for BHP. These are serious and damaging findings to be made of a witness presented as an independent expert. The Judge’s findings necessarily undermine Mr Rogers’ personal integrity and independence as an expert. They are findings that go well beyond reliability. They are findings that directly attack credibility.
Adopting the language of the Court in Livesey v New South Wales Bar Association,[40] in my view, a fair-minded lay observer might reasonably apprehend bias by reason of prejudgment if Judge McCusker presides in the trial in Van Soest v BHP Billiton Ltd after he has in Hamilton v BHP Billiton Ltd[41] expressed a clear view about the lack of credit and independence of Mr Rogers whose evidence is of significance on the question of the level of asbestos fibre and dust in the atmosphere at relevant times and in particular, whether there had been compliance with the standard published by the National Health and Medical Research Council.
[40] Livesey v New South Wales Bar Association (1983) 151 CLR 288.
[41] Hamilton v BHP Billiton Ltd [2012] SADC 25.
It is difficult, given the nature of the Judge’s rejection of Mr Rogers’ evidence and his explicit findings of Mr Rogers’ lack of credibility, for a fair-minded lay observer to have confidence that the Judge’s findings in Hamilton v BHP Billiton Ltd[42] can be put to one side and for the Judge, without prejudgment, to consider the evidence to be led by Mr Rogers in Van Soest v BHP Billiton Ltd. I reject the submission that a fair-minded lay observer would so consider the matter. To the contrary, I consider that a fair-minded lay observer might reasonably apprehend that the Judge might have prejudged the issue. To my mind it has been firmly established that a fair-minded lay observer would entertain a reasonable fear that Judge McCusker was incapable of bringing a fair and unprejudiced mind to the determination of Mr van Soest’s claim.[43]
[42] Hamilton v BHP Billiton Ltd [2012] SADC 25.
[43] Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, 100.
These considerations are, in my view, compounded by the Judge’s references to helots and to obtuseness and by the Judge’s comment concerning irony. It is important to set out the Judge’s use of these words in Hamilton v BHP Billiton Ltd:[44]
I find as follows. The defendant knew or ought to have known that the asbestos it was using was hazardous. If it had made due enquiry about its possible dangers, it would have discovered on the literature asbestos presented a serious risk of lung disease including asbestosis, lung cancer or mesothelioma. It would have appreciated that responses to asbestos dust inhalation were variable and different workers had different susceptibilities. It would have realised asbestosis, lung cancer and mesothelioma appeared load related. The danger occurred when the asbestos in dust form was inhaled. The literature indicated that while the dosage and duration needed to cause harm was unknown it may have been satisfied by high dosage of short duration. Therefore the only reasonable approach and the one generally recommended by the experts was to reduce the inhalation of dust so far as was reasonably possible. Moreover it was part of the content that the workers who were likely to be exposed to the risk should be informed of the danger. With respect to the latter I regard any other expectation would be to suggest the men be treated as helots.
In particular I find that a reasonable employer with the knowledge that the defendant had or should have had would have realised that any MACs in regulations or stated in Dreessen were questionable at best. To conclude observance of a 5mppcf limit as sufficient response, given the information available, particularly Fleischer, but also McLaughlin, would have been obtuse, on the basis of the available information.
Findings on Preventability
It is ironic that had the defendant at the relevant time put a fraction of the investigative effort as had been expended in defending this claim into a sensible and warranted examination of the dangers of asbestos and what ought to be done to reduce dust levels, there would be little chance that they would not have realised the dangers and acted. A reasonable employer could have taken action to suppress the dust. Instead nothing was done in this regard.
[Emphasis added.]
[44] Hamilton v BHP Billiton Ltd [2012] SADC 25, [393]-[395].
Close analysis of the Judge’s reasons in Hamilton v BHP Billiton Ltd[45] may allow the conclusion that these statements were not made with reference to BHP. However, the matter is far from clear. It is difficult to understand why these terms were used in the judgment unless they were relevant in some way to the issues that arose. It is possible that they were simply gratuitous remarks directed to a hypothetical employer. On the other hand, I consider that there is a real risk that a fair-minded lay observer would infer that they were disparaging remarks of or toward BHP.
[45] Hamilton v BHP Billiton Ltd [2012] SADC 25.
I consider the Judge’s findings about Mr Rogers’ lack of credibility through acting as an advocate for BHP with the consequence that he was in breach of his duty to the Court and was not independent or impartial, to be sufficient of themselves to lead to the Judge’s disqualification on the ground of a reasonable apprehension of bias. I say this in light of the Court being informed that Mr Rogers would be called as would Mr Kottek. However, the question of apprehension of bias through prejudgment should be addressed having regard to the entirety of the concerns discussed above. A fair-minded lay observer, having regard to all of these matters, might reasonably apprehend prejudgment.[46]
[46] Michael Wilson & Partners Ltd v Nicholls (2011) 86 ALJR 14, [31].
Necessity
The issue of necessity was also in contention on the appeal. The rule of necessity aims to “prevent a failure of justice or a frustration of statutory provisions”.[47] In Laws v Australian Broadcasting Tribunal, Deane J made the following remarks in respect of the principle of necessity:[48]
…That rule operates to qualify the effect of what would otherwise be actual or ostensible disqualifying bias so as to enable the discharge of public functions in circumstances where, but for its operation, the discharge of those functions would be frustrated with consequent public or private detriment. There are, however, two prima facie qualifications of the rule. First, the rule will not apply in circumstances where its application would involve positive and substantial injustice since it cannot be presumed that the policy of either the legislature or the law is that the rule of necessity should represent an instrument of such injustice. Second, when the rule does apply, it applies only to the extent that necessity justifies.
The question whether the application of the rule of necessity would involve positive and substantial injustice must be answered by reference to the circumstances of the particular case. …
[47] Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, 96.
[48] Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, 96.
On the topic of necessity, the Judge concluded that he was required to hear Mr van Soest’s matter on the ground of necessity as “[t]here [were] no other Judges available to hear this case in the time frame permitted if the plaintiff [was] to have a chance of a hearing and determination before death”. On the material before this Court, it appears that the Judge only inquired about the availability of the other Judges of the Industrial Relations Court and may have limited the inquiry to mid-April to mid-May 2012.
In this State, the District Court has jurisdiction to hear dust disease cases. However, on 18 November 2010, Chief Judge Worthington of the District Court issued a Practice Note indicating that the matters in the Dust Diseases List would be managed and heard by the members of the Industrial Relations Court. The Practice Note relevantly provides:
Senior Judge Jennings has informed the Attorney General and me that the workload of the judges of the Industrial Relations Court has become such that, for the time being at least, they have the capacity to take on some of the workload of other courts. All of the judges of that court hold commissions as District Court judges.
After discussions involving the two courts and the Attorney General, the following administrative arrangements have been made:
…
-From 31 January 2011 proceedings in the Dust Diseases List of the District Court will be managed through the interlocutory process and heard by judges located at the Industrial Relations Court, Riverside Centre, North Terrace, Adelaide. Senior Judge Jennings will be the judge supervising that list. This arrangement will help the court in meeting the need for dust disease actions to be dealt with expeditiously, especially in cases where an urgent hearing is required.
As judges can exercise the powers of masters, no changes to Practice Direction 4.5 are needed at this stage except for some contact details, but that will be kept under review. The Registrar will advise the parties as matters are transferred to North Terrace and those that are at an interlocutory stage before a master will be transferred at an appropriate time.
…
These arrangements do not affect existing Registry procedures.
Concurrently, the practice note indicated that the Judges of the Industrial Relations Court rather than Judges of the District Court would sit in the Licensing Court and that appeals to the Administrative and Disciplinary Division of the District Court under the Health Practitioners Regulation National Law (SA) Act 2010 (SA) would also be heard by Judges of the Industrial Relations Court.
Despite the changes regarding the matters in the Dust Diseases List, the Chief Judge saw no reason to modify the District Court Practice Direction 4.5, save for some changes to the contact details. That Practice Direction provides:
Direction 4.5 – Dust Diseases List – District Court only
4.5.1All documents filed in proceedings to which the Dust Diseases Act 2005 applies must have immediately underneath the action number the words “Dust Diseases Act 2005”. The proceedings will be put into the Dust Diseases List and managed in accordance with this Practice Direction.
4.5.2At the first hearing before a Master, a category will be assigned to the case based on the state of health of the plaintiff or such other matter as the court considers relevant. These categories are:
Ordinary cases: eg where the plaintiff is suffering from a non life-threatening dust disease or where a claim is made for compensation to relatives.
Urgent cases: eg where the plaintiff is seriously ill and an expedited hearing is needed.
4.5.3Practitioners are reminded of the provisions of Rule 33(1)(a) and (c) which exempt urgent cases, and cases where the court so directs, from the requirements of the 90 day rule.
4.5.4If a party wishes to have proceedings categorised as urgent, whether on commencement or at a later time, an interlocutory application seeking a special hearing date for directions is to be filed pursuant to Rule 131 together with an affidavit setting out as fully as circumstances permit:
4.5.4.1      the nature of the disease alleged;
4.5.4.2      the condition of the plaintiff's health and the degree of urgency;
4.5.4.3particulars of notification given to other parties to the proceedings and practitioners by whom they are represented;
4.5.4.4      readiness for hearing, and whether
4.5.4.4.1     experts’ reports have been obtained and served;
4.5.4.4.2     further medical examinations are required;
4.5.4.5      a proposed expedited interlocutory timetable; and
4.5.4.6if a hearing date is to be sought forthwith, the details and availability of witnesses and where it is requested that evidence be taken.
Where possible a supporting medical report should be exhibited to the affidavit.
These matters will be referred to a Master as soon as possible.
4.5.5In cases of extreme urgency practitioners are reminded of the provisions of Rule 131(4).
4.5.6A party seeking to have evidence taken urgently in proposed proceedings is requested to telephone the Registry on 8204 0289 as soon as possible, even though the proceedings have not been issued, with details of what is to be sought.
4.5.7Masters will conduct regular hearings in relation to matters in the Dust Diseases List where directions will be given, but when it is appropriate matters will be dealt with by a Master according to the particular circumstances of the case.
4.5.8In cases where it is necessary for a trial date or a date for taking evidence on examination pursuant to Rule 184 to be fixed immediately, the action may be referred forthwith to a Listing Appointment.
Chief Judge Worthington did not remove the matters in the Dust Diseases List from the jurisdiction of the District Court and nor did he intend to. The Practice Note of 18 November 2010 was simply an administrative decision as the Judges of the Industrial Relations Court had the capacity to take on the additional workload. Accordingly, Judge McCusker erred in restricting his inquiries to Judges of the Industrial Relations Court when considering the issue of necessity. The Judge should have at least made inquiries with the Judges of the District Court. In light of section 5 of the Dust Diseases Act 2005 (SA) which provides that “[t]he District Court will give the necessary directions to ensure that dust disease actions have priority over less urgent cases and are dealt with as expeditiously as the proper administration of justice allows”, it may be reasonably inferred that a Judge of the District Court would be available, or would make himself or herself available, to hear the matter.
The so-called necessity can also be overcome by other means. Both parties agreed at the hearing of the appeal that they would consent to Judge McCusker taking evidence from Mr van Soest as an examiner on 19 April 2012 and for this evidence to be used at the trial regardless of whether it is Judge McCusker or another Judge who hears the trial. This overcomes the urgency associated with Mr van Soest’s declining health and imminent death. Accordingly, the date for trial is not restricted to mid-April to mid-May 2012. This increases the likelihood of a Judge of the District Court or a Judge of the Industrial Relations Court, other than Judge McCusker, being available to hear the matter. Although the resolution of the case before Mr van Soest’s death is desirable, it is to be weighed against the interests of justice in having another Judge hear the case.
My views are supported by the following observations of Kirby P in Australian National Industries Ltd v Spedley Securities Ltd (In liq):[49]
Whilst I would concede that it would be highly convenient that Cole J should hear as many as possible of the Spedley proceedings, convenience falls a long way short of necessity. Nobody doubts that a court (or tribunal) must, of necessity, ordinarily be entitled to discharge its legal functions. cf Dimes v Grand Junction Canal (Proprietors) Co (1852) 3 HLC 75910 ER 301; Dickason v Edwards (1910) 10 CLR 243 at 259; Builders' Registration Board of Queensland v Rauber (1983) 57 ALJR 376 at 385, 39247 ALR 55at 71-72, 83-85. In the United States of America, extraordinary lengths have sometimes been resorted to in order to assure litigants of a manifestly independent and impartial tribunal, even to the point of securing the appointment of additional members to the Supreme Court of a State to overcome the suggested appearance of bias on the part of all of the serving members: see Johnson v Darr 272 SW 1098n (1925) discussed in John P Frank, Disqualification of Judges , 56 Yale LJ 605 (1947) at 611. The present is a case which falls a long way short of that necessity. However convenient it might be for a single judge to deal with inter-related matters, and however large are the challenges presented by complex, multi-faceted commercial litigation, it has by no means been established that it is necessary for Cole J to hear all of the current proceedings.
By Cole J's own count, one member of the Commercial Division (Giles J) might have been available to sit. Another member (Brownie J) could have become available by a rearrangement of cases, including by exchange with Cole J. There is no immediately obvious reason why another judge from different Division of the Supreme Court or even a newly appointed judge could not be added to the Commercial Division to uphold the appearance of justice which the law would otherwise require. Nor is it self-evident that the proceedings, and all of them, must be heard in the Commercial Division. Thus, it is not obvious as to why it could not be referred to the Equity Division, perhaps adopting in the special circumstances the particularly beneficial procedures applied in the Commercial Division. Whilst I acknowledge the force of the objections to the reference of such proceedings to arbitration, such a reference is also clearly available to the judges of the Supreme Court. A moment's examination, therefore, demonstrates that what is being urged here is not necessity (as that exemption from the requirements of manifest justice has been interpreted) but convenience, good case management and economy to the community and the parties.
I unhesitatingly concede the importance of such considerations. Alike with Samuels JA I have agreed that regard may properly be had to them in the management of cases assigned to special lists of the Supreme Court, such as that maintained in the Commercial Division: see GSA Industries Pty Ltd v N T Gas Ltd (1991) 24 NSWLR 710. But in comparison to the entitlement of the appellants to have, in a matter of such importance to them, a trial of manifest impartiality by a judge who comes to their main contest unburdened by earlier findings and expressed opinions about the credit of central witnesses, such considerations pale into less importance.
This conclusion, which the facts of this case requires, absolves me from exploring the differences of opinion expressed in the High Court in Laws v Australian Broadcasting Tribunal. It is simply not necessary in this case (any more than it proved for the decision in Laws) to consider the problem which would arise if the exception of necessity were made out. As in the case of the Broadcasting Tribunal, so in the case of the Supreme Court, there are persons who are not disqualified who can constitute the court for the subject proceedings. Accordingly, no question of necessity arises.
[Emphasis added.]
The above observations are applicable to the present proceeding. In my view, the requirements of the principle of necessity have not been satisfied. The Judge erred in his conclusions on this topic.
[49] Australian National Industries Ltd v Spedley Securities Ltd (In Liq) (1992) 26 NSWLR 411, 421-422.
Conclusion
In my view, a fair-minded lay observer might reasonably apprehend prejudgment if Judge McCusker were to hear District Court action 238 of 2012. Accordingly, I make an order for prohibition preventing Judge McCusker from hearing District Court action 238 of 2012. Further, I make an order in the form of certiorari, setting aside the order of the Judge made on 3 April 2012 that BHP pay the costs of the second defendant of the argument of that day.