British American Tobacco Australia Services Ltd v Laurie

British American Tobacco Australia Services Ltd (BAT) sought leave to appeal against a decision of the Dust Diseases Tribunal of New South Wales. The dispute concerned an application by BAT for the disqualification of the presiding judge, who had previously made adverse credit and factual findings against BAT in an interlocutory judgment in separate proceedings. BAT contended that these findings were expressed with such finality as to create an apprehension of bias, suggesting the judge might not approach the current proceedings with an impartial mind.

The primary legal issue before the Court of Appeal was whether the judge of the Dust Diseases Tribunal had erred in refusing to recuse himself. This required the court to consider whether the previous interlocutory judgment gave rise to a reasonable apprehension of bias in the mind of a fair-minded lay observer. The court also had to determine whether an erroneous refusal to disqualify oneself constituted a decision in point of law, thereby grounding an appeal under section 32(1) of the *Dust Diseases Tribunal Act 1989* (NSW), and whether the doctrine of necessity applied to compel the judge to hear the matter.

The Court of Appeal held that the findings in the interlocutory judgment, while adverse to BAT, were not expressed with the degree of finality that would lead a reasonable, fair-minded observer to apprehend bias. The court reasoned that the judge's previous findings were made in the context of interlocutory proceedings and did not preclude a fresh and impartial consideration of the evidence in the subsequent proceedings. The court found that the judge had not erred in law by refusing to disqualify himself, and therefore, the appeal was dismissed.

Consequently, the summons for leave to appeal and the summons filed under section 69 were dismissed with costs.