Candetti Constructions Pty Ltd v Fonteyn - [2010] SASCFC 63

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
CANDETTI CONSTRUCTIONS PTY LTD v FONTEYN
[2010] SASCFC 63
Judgment of The Full Court
(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice Sulan)
29 November 2010
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - ORDINARY RULE
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - REASONABLE SUSPICION OF BIAS
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - TIME FOR TAKING OBJECTION
Application for permission to appeal from decision of the Full Court of the Industrial Relations Court of South Australia - Candetti Constructions Pty Ltd and Ace Panel Systems Pty Ltd were separately charged with offences under section 19(1) of the Occupational Health, Safety and Welfare Act 1986 (SA) - Ace Panel Systems pleaded guilty and was sentenced by Industrial Magistrate - charge against Candetti Constructions heard more than 12 months later by the same Magistrate who sentenced Ace Panel Systems - Candetti Constructions pleaded not guilty - at opening of trial, counsel for Candetti Constructions indicated that Candetti Constructions was content to proceed with the same Magistrate presiding - Industrial Magistrate found Candetti Constructions guilty of the charge - Candetti Constructions appealed to Senior Judge of the Industrial Court on basis that Magistrate should have recused himself - Judge found that a reasonable apprehension of bias was made out - Judge found that there could not be a waiver of the right to object to the apprehension of bias in criminal proceedings - majority of Full Court of Industrial Relations found that no appearance of bias arose on appeal - whether majority of Full Court correct in concluding that no appearance of bias arose on the part of presiding Industrial Magistrate - whether there was waiver by Candetti Constructions.
Held: permission to appeal granted but appeal dismissed - majority of the Full Court correct in concluding that no appearance of bias arose on the part of the Industrial Magistrate - even if an appearance of bias did arise, in the circumstances, any rights arising therefrom were waived.
Occupational Health, Safety and Welfare Act 1986 (SA) s 4(2) and s 19(1), referred to.
Fonteyn v Ace Panel Systems Pty Ltd [2010] SAIRC 43; Fonteyn v Candetti Constructions Pty Ltd [2009] SAIRC 36; Candetti Constructions Pty Ltd v Fonteyn [2010] SAIRC 10; R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256; Webb v The Queen (1994) 181 CLR 41; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Johnson v Johnson (2000) 201 CLR 488; MJD v R [2006] NSWCCA 151; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411; R v Burrell (2007) 175 A Crim R 21; R v Vlassakis (2001) 216 LSJS 274; R v Kamleh [2003] SASC 269; Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45; R v Hutchison (1993) 171 LSJS 364; R v Eastman (No 2) (1995) 121 FLR 155; Dickason v Edwards (1910) 10 CLR 243; R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Antoun v The Queen (2006) 159 A Crim R 513; Kyriacou v Police (2007) 251 LSJS 59; Knaggs v Director of Public Prosecutions (NSW) (2007) 170 A Crim R 366; Mills v Police [2004] SASC 14; Gamage v State of Western Australia [2008] WASCA 49; Bleechmore v Keating [2008] WASC 309; R v McCosker [2010] QCA 52; Nudd v R (2006) 225 ALR 161; Smits v Roach (2006) 227 CLR 423; Kuru v State of New South Wales (2008) 236 CLR 1, considered.

CANDETTI CONSTRUCTIONS PTY LTD v FONTEYN
[2010] SASCFC 63
Full Court: Bleby, Gray and Sulan JJ
BLEBY J. I would grant permission to appeal, but would dismiss this appeal. I agree with the reasons of Gray J.
GRAY J.

This is an application for permission to appeal from a decision of the Full Court of the Industrial Relations Court of South Australia.[1]
[1] Fonteyn v Ace Panel Systems Pty Ltd [2010] SAIRC 43.
The application for permission has been referred into open Court for oral argument. The parties have presented submissions to this Court on the basis that if permission is granted the appeal will be heard instanter.
The primary issue arising on the appeal is whether the majority of the Full Court was correct in concluding that no appearance of bias arose on the part of an Industrial Magistrate presiding over the trial of an alleged statutory offence.
In my view, permission to appeal should be granted but the appeal dismissed. The majority of the Full Court was correct in concluding that no appearance of bias arose. Further, in my view, even if an appearance of bias did arise, having regard to all the circumstances, any rights arising therefrom were waived.
At First Instance
Candetti Constructions Pty Ltd and Ace Panel Systems Pty Ltd, were separately charged with offences under section 19(1) of the Occupational Health, Safety and Welfare Act 1986 (SA). The charges arose out of an incident that occurred on 20 April 2005 involving an employee of Ace Panel Systems. The employee, Shawn Murphy was injured on a building site when he fell several metres from an opening in a suspended ceiling, to a concrete floor below.
Ace Panel Systems was charged on the basis that it, as Mr Murphy’s employer, had failed, so far as reasonably practicable, to ensure that Mr Murphy was, whilst at work, safe from injury and risks to his health. Ace Panel Systems pleaded guilty at the earliest opportunity. Both the complainant - a representative of SafeWork SA - and Ace Panel Systems made submissions on penalty.
The Magistrate recorded the complainant’s submissions as follows:[2]
It is accepted by the [complainant] that Candetti had primary safety responsibility for the site and that it had the greater control over it. The aperture in question was the main access for passing up equipment and building materials not only for [Ace Panel Systems] but for several other trades and trades persons.
There was in place an agreement between Candetti and [Ace Panel Systems] whereby the former would provide bunting or edge protection around the access apertures. It had, in fact, been provided but had been removed as work progressed and had not been replaced, leaving unprotected voids. At the time of the accident, as I have indicated, there was no apparent edge protection around the aperture in question.
The [complainant] accepts that [Ace Panel Systems] had limited control over the worksite but maintains that it was nevertheless required to provide and maintain a safe working environment and had failed to do so by requiring Mr Murphy to work in the vicinity of an opening through which he could fall. The prosecution alleges that [Ace Panel Systems] should have ensured that Candetti maintained a safe working environment including by making sure that edge protection remained in place until necessary that it be removed for access purposes and then replaced.
The Magistrate recorded that counsel for Ace Panel Systems submitted: [3]
[Counsel] who appeared for [Ace Panel Systems] additionally observed that in response to the original tender for the work [Ace Panel Systems] had noted that it would not provide safety barriers but rather that they were to be the responsibility of Candetti. All contractors were inducted by Candetti, albeit in a basic fashion that was more of an orientation to offices, amenities, first aid and basic safety awareness.
[2] Fonteyn v Ace Panel Systems Pty Ltd [2007] SAIRC 43 at [10]-[12].
[3] Fonteyn v Ace Panel Systems Pty Ltd [2007] SAIRC 43 at [20].
When sentencing Ace Panel Systems the Magistrate remarked, inter alia:[4]
However in my view considerable weight is to be placed upon the fact that there was an agreement between [Ace Panel Systems] and Candetti that the latter was to protect the apertures and in fact had done so up until the day of the accident. It is an issue with some difficulties. Candetti were in clear control of the site and needed to be so in order to cater for all the construction trades involved. On the facts before me Candetti would appear to be the more culpable party with respect to the protection of the apertures but while it is not open to [Ace Panel Systems] to avoid its statutory obligations by virtue of the undertakings of a third party it is my view that some mitigation is available to [Ace Panel Systems] in the fact that it was entitled to believe that a safe system of fencing would be maintained in circumstances where several trades were to be granted access to a site over which it did not have control. I accept though that that did not preclude [Ace Panel Systems] making its own inspections and if necessary withdrawing services until the Candetti undertaking was complied with.
[4] Fonteyn v Ace Panel Systems Pty Ltd [2007] SAIRC 43 at [26].
Candetti Constructions was separately charged on the basis that it was the deemed employer of Mr Murphy at the time of his injuries and that it too had failed, so far as reasonably practicable, to ensure that Mr Murphy was, whilst at work, safe from injury and risks to his health. Section 4(2) of the Occupational Health, Safety and Welfare Act deems an entity to be the employer of another in specified circumstances:
For the purposes of this Act, where a person (the contractor) is engaged to perform work for another person (the principal) in the course of a trade or business carried on by the principal, the contractor, and any person employed or engaged by the contractor to carry out or to assist in carrying out the work, will be taken to be employed by the principal but the principal's duties under this Act in relation to them extend only to matters over which the principal has control or would have control but for some agreement to the contrary between the principal and the contractor.
[Original emphasis]
The particulars in support of the charge against Candetti Constructions included:[5]
At all material times [Candetti Constructions] had control over openings in suspended ceilings at the site.
[5] Fonteyn v Candetti Constructions Pty Ltd [2009] SAIRC 36 at [1].
As events transpired the charge against Candetti Constructions was heard more than 12 months later than that against Ace Panel Systems by the same Magistrate who had sentenced Ace Panel Systems.
Candetti Constructions pleaded not guilty to the charge. At the opening of the trial, the following exchange took place:[6]
[Counsel for Candetti Constructions]: I am sorry, your Honour, before my learned friend starts there is one formal matter I need to deal with, if I may. You will recall that your Honour heard a guilty plea for Ace Panel Systems, who will feature quite heavily in this matter. I should note for the record that [Candetti Constructions] has been content for the matter to continue to be heard before your Honour, because as a judicial officer you will appreciate that they were putting their best foot forward, as it were, but, without disclosing our defence, we do wish to highlight to your Honour that there will be a significant attack on Ace Panel Systems which may well conflict with the matters that were put before you in the guilty plea. If you like, my client seeks a level of comfort that your Honour is comfortable with that course of action.
…
His Honour: In any event, I do recall the matter. I obviously acted on the basis of certain submissions that were put to me on behalf of [Ace Panel Systems].
….
You’re saying to me now that, really, the evidence is going to disclose something different from the basis upon which I acted when I convicted [Ace Panel Systems].
…
It’s not a satisfactory, I suppose, course of events, but I don’t see any difficulty with it myself.
[Counsel for Candetti Constructions]: No, we don’t seek you to disqualify yourself but rather just to record that on transcript.
[6] Fonteyn v Ace Panel Systems Pty Ltd [2010] SAIRC 43 at [10]-[12].
The Magistrate’s reasons make it clear that while it was conceded that Candetti Constructions met some requirements of section 4(2) of the Occupational Health, Safety and Welfare Act, there was a real dispute as to the matters over which Candetti Constructions had control and whether there was an agreement with Ace Panel Systems that relinquished that control.
Following the hearing and reserving his decision, the Magistrate later found Candetti Constructions guilty of the charge, entered a conviction and imposed a fine.
The Industrial Court Appeal
The Senior Judge
An appeal by Candetti Constructions was heard by the Senior Judge. Candetti Constructions contended inter alia that it had been denied natural justice. It said that the Magistrate should have recused himself by reason of the fact that he had sat on the earlier guilty plea from Ace Panel Systems with respect to the charge arising out of the same incident, and had made adverse findings against Candetti Constructions in that proceeding.
The Senior Judge found in Candetti Constructions’ favour and reasoned:[7]
Having regard to the nature of the statements made in the earlier proceedings, the learned Industrial Magistrate’s own statement to the effect that his sitting in the subsequent proceedings was not satisfactory, and having regard to the fact that the issue of control on the part of [Candetti Constructions] was one of the key issues in determining whether or not it was guilty of the offence with which it was charged, it seems to me that, to use the words of Ebner v Official Trustee in Bankruptcy, that a fair minded lay observer might reasonably apprehend that the learned Industrial Magistrate might not have brought an impartial mind to the resolution of this issue.
[Footnote omitted]
[7] Candetti Constructions Pty ltd v Fonteyn [2010] SAIRC 10 at [37] (Jennings SJ).
On the question of bias, the Senior Judge concluded:[8]
In my respectful opinion the learned Industrial Magistrate should have disqualified himself.
In all the circumstances, it seems to me that the only appropriate course is to set aside the appellant’s conviction and to remit the matter for rehearing before another Industrial Magistrate.
[8] Candetti Constructions Pty ltd v Fonteyn [2010] SAIRC 10 at [38]-[39].
The complainant had submitted to the Senior Judge that notwithstanding such a conclusion, the exchange between Candetti Constructions’ counsel and the Magistrate reflected Candetti Constructions’ waiver and Candetti Constructions could not now be heard to complain that the Magistrate continued to hear the case.
The Senior Judge rejected this submission and found that a party in criminal proceedings could not waive the right to be tried by an adjudicator who was, and was manifestly seen to be, impartial:[9]
In criminal proceedings the public is in effect one of the parties. I do not think that it can be said that its confidence in the impartiality of the court in the face of apprehended bias would necessarily be maintained because the defendant had waived the right to object. It might think that the defendant waived that right to avoid the ire of the presiding officer such that the waiver was made under some duress. It might think that the defendant provided the waiver to gain some advantage by being seen to be reasonable and accommodating or by putting the presiding officer under some pressure by alerting the officer that he or she might be subject to some extra scrutiny because of the notation of some prior adverse statement. Having reflected upon these matters I have come to the conclusion that the practical considerations that underpin a court’s preparedness to overlook apprehended bias upon waiver by parties in civil proceedings have no role to play in the context of criminal proceedings.
[9] Candetti Constructions Pty ltd v Fonteyn [2010] SAIRC 10 at [31].
The Full Court
On appeal the Full Court divided. The majority allowed the complainant’s appeal and set aside the orders of the Senior Judge, reasoning that no apprehension of bias arose. Judge Hannon, providing the reasons for the majority, concluded:[10]
Bearing the above general principles in mind, and the approach which has been taken to the limited nature of the fact finding process in sentencing proceedings, I do not consider that either the Magistrate’s participation in the Ace Panel’s guilty plea, or any of the comments made by the Magistrate on the first day of the trial of [Candetti Constructions] when the issue of his involvement in the Ace Panels guilty plea was raised by counsel for [Candetti Constructions], might give rise to a reasonable apprehension by the reasonable bystander that the Magistrate might not act in an impartial manner in determining whether [Candetti Constructions] was guilty of the charge against it.
…
I consider that the learned Senior Judge erred in his conclusion that the Magistrate should have disqualified himself on grounds of apprehended bias. In directing himself as to the applicable law on the issue, the learned Senior Judge had regard to the comments of Kirby P in Australia National Industries Ltd v Spedley Securities to the effect that where emphatically expressed findings have been made upon issues arguably crucial to subsequent litigation involving matters which concerned the vital interests of the parties, a higher measure of stringency was required by the law which must be scrupulously observed. In applying this principle to the facts of this matter, the learned Senior Judge did not have sufficient regard to the context in which the Magistrate acted when imposing penalty on Ace Panels on the basis of assumed facts. The situation was very different from that arising in Spedley Securities where strong adverse findings as to the credibility of witnesses had been made in previous proceedings as to their role in complex financial transactions, which gave rise to an apprehension that there could not be an impartial consideration of evidence on similar matters from the same witnesses in subsequent proceedings before the same Judge. In my view, the learned Senior Judge did not apply the principles relating to an apprehension of bias in a manner which recognised the distinction in the circumstances where the Magistrate relied upon an assumed set of facts on a guilty plea, or which recognised and took into account the full context of the remarks made at the outset of the trial by reference to all of the proceedings in the appropriate manner as described above.
…
Accordingly, I conclude that there was no proper basis for a conclusion that the Magistrate should have disqualified himself or that the trial miscarried. I would allow the appeal, and would order that the appeal be remitted to the learned Senior Judge for his decision on the substantive matters argued before him on the appeal, which he has not yet determined given the decision he reached on the apprehension of bias issue.
[Footnote omitted]
[10] Fonteyn v Candetti Constructions Pty Ltd [2010] SAIRC 43 at [119], [127], [129].
Judge Gilchrist in dissent reasoned:[11]
…I think the reasonable bystander would be concerned that the learned Industrial Magistrate may unconsciously have been affected by the submissions and findings made by him when sentencing Ace Panels and that they might have influenced his approach in evaluating the evidence and in making findings of fact in the prosecution case against Candetti.
The reasonable bystander would take some comfort from the fact that Candetti’s counsel did not take issue with the learned Industrial Magistrate’s continued involvement. However upon being informed, as we were, that this issue was not raised with Candetti itself, the bystander’s level of comfort would be diminished.
Having regard to all of the relevant facts, in my view the reasonable bystander would conclude that there was a real possibility that the learned Industrial Magistrate was biased. I do not for one moment suggest that he was in fact biased. But the issue here is perception, not reality. …
[11] Fonteyn v Candetti Constructions Pty Ltd [2010] SAIRC 43 at [79]-[81].

The members of the Full Court did not find it necessary to decide the issue of waiver.
The Appeal to this Court
The Parties’ Contentions
On appeal Candetti Constructions submitted that the majority of the Full Court erred in holding that an appearance of bias had not been established. It was further submitted that there had been no waiver of the right to object on the ground of an appearance of bias. It was contended that there could be no waiver in the criminal court, but that in any event, waiver had not been established as a matter of fact.
The complainant contended that the decision of the majority of the Full Court in concluding that there was no appearance of bias, was correct. It was further argued that in any event Candetti Constructions had waived the right to object on the ground of an appearance of bias. Finally, the complainant submitted that an affidavit received by the Full Court from an in-house legal officer with Candetti Constructions, was wrongly admitted. The Full Court had received the affidavit de bene esse but, it was contended, then proceeded to admit the affidavit without addressing any of the complainant’s submissions as to why it should not be received.
The Further Affidavit
It is convenient to first address the issue concerning the affidavit.
The substance of the affidavit was that in-house counsel for Candetti Constructions was present at the commencement of the hearing when the question of the Magistrate’s earlier involvement in the matter first arose. In-house counsel deposed to not being properly informed about the significance of the Magistrate’s earlier involvement and further deposed that neither the solicitors for Candetti Constructions nor its counsel explained matters to her or properly advised her about the issue of bias. In-house counsel deposed to being concerned about the matter, but lacking sufficient awareness of court procedure to raise the matter with her advisors at the time.
Particular paragraphs of the affidavit were challenged by the complainant on the basis that they were hearsay and only went to the state of belief of the deponent. The balance of the affidavit was challenged on the basis that it could have no weight in the absence of evidence from the instructing solicitor and counsel who appeared at the time.
Before this Court, it was pointed out that the Full Court intimated to the parties that it would first determine the issue of relevance and then, if that was determined in a manner adverse to the complainant, the Full Court would revisit the issue of whether the affidavit should be received in the absence of evidence from the instructing solicitor and counsel appearing at the time. The Full Court should have proceeded in accordance with its intimation.
In my view, the affidavit at the very least was admissible on the topic of alleged waiver. I also consider that it was relevant, in a limited way, to the question of an appearance of bias. The conduct of Candetti Constructions, following the issue of the Magistrate’s earlier involvement being raised, was a relevant consideration. That conduct, it might be expected, may have been influenced by the state of mind of its in-house counsel.
Candetti Constructions informed this Court that its trial counsel “did subsequently object to at least in part to challenge the accuracy of this affidavit”. In this circumstance, in the absence of any affidavit from the instructing solicitor or trial counsel, it is difficult to give any substantial weight to the affidavit of the in-house counsel. In particular, the conclusion of fact referred to in the dissenting judgment that “[the issue of the Magistrate’s continued involvement] was not raised with Candetti itself”[12] cannot in these circumstances be sustained.
[12] Fonteyn v Candetti Constructions Pty Ltd [2010] SAIRC 43 at [80].
An Appearance of Bias
It is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.[13] It is further of fundamental importance that both the parties to litigation and the general public have full confidence in the integrity, including the impartiality, of those entrusted with the administration of justice.[14]
[13] R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259.
[14] Webb v The Queen (1994) 181 CLR 41 at 68.
In Ebner v Official Trustee in Bankruptcy[15] the High Court set out the following principles with respect to disqualification for apprehended bias:
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver … or necessity … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
[Footnotes omitted – emphasis added]
[15] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345.
The characteristics of a “reasonable observer” were considered by the High Court in Johnson v Johnson,[16] where Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ observed:
That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. "If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision." The 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. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. …
…
…the hypothetical observer is no more entitled to make snap judgments than the person under observation.
[Footnotes omitted – emphasis added]
[16] Johnson v Johnson (2000) 201 CLR 488 at 492-494, see also at 508-509 (Kirby J), and at 517-518 (Callinan J).
The principles enunciated by the High Court in Johnson were applied by the Court of Criminal Appeal in New South Wales in MJD,[17] where Hodgson JA relevantly observed:
… the circumstance that the judge was not asked to disqualify himself and the trial was completed means that the objective test referred to in Johnson should be applied in the light of everything that happened in the trial, both before and after the comments complained of; and consistently with Johnson, the reasonable lay observer would take into account the circumstances in which the comments were made, the circumstance that the trial judge was a professional judge whose training, tradition and oath or affirmation required him to discard the irrelevant, the immaterial and the prejudicial, the circumstance that there was no request to the judge to disqualify himself, and the circumstance of a summing up that was generally favourable to the appellant. This Court then has to decide whether there was a miscarriage of justice, in the light of these considerations, and also in the light of the lack of complaint made on appeal about any actual decision made by the trial judge.
[17] MJD v R [2006] NSWCCA 151 at [45].
As emphasised by the remarks in Johnson excerpted above, if reasonable observers reasonably apprehend or suspect that the decision-maker has prejudged the matter, “they cannot have confidence in the decision.”[18]
[18] Johnson v Johnson (2000) 201 CLR 488 at 493 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) citing R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263 (Barwick CJ, Gibbs, Stephen and Mason JJ).
It is to be noted that where apprehended prejudgment of an issue is relied upon as the basis for disqualification of a decision-maker, that prejudgment must be firmly established. As was observed by Gaudron and McHugh JJ in Laws v Australian Broadcasting Tribunal:[19]
…A reasonable bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about an issue involved in the inquiry: Reg v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd; Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Re Shaw; Ex parte Shaw. When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her. …
[Footnotes omitted]
[19] Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100.
It is further to be noted that a marked distinction exists between sentencing remarks which are based on facts often agreed or assumed and presented to the court, and independent findings of fact reached by the court by determining contested issues. As Spigelman CJ observed in Reid: [20]
A sentencing judge is well able to distinguish the evidence, particularly in the form of an agreed statement of facts, in one sentencing proceeding, and put both those facts and his judgment contained in the remarks on sentence in the prior proceedings out of his or her mind, for the purpose of the subsequent proceedings. A reasonable, independent observer would understand that judicial training does enable that to occur and would not call in question in any manner the proposition that that sentencing judge would bring an impartial and unprejudiced mind to the second sentencing decision making process.
[20] R v Reid (2004) 148 A Crim R 425 at [26], see also at [6]-[7], [21]-[22].
The holding of preconceived views by a Judge may not necessarily mean bias on the part of the Judge who holds those views. As Dawson J commented in Vakauta v Kelly:[21]
The lack of impartiality which is alleged in this case is not said to have arisen from any interest in the outcome of the case; it is based upon the preconceived views which the trial judge had about the defendant's witnesses and the real defendant, the GIO. Preconceptions do not necessarily mean bias on the part of the judge who holds them. As was said by Charles J in Reg v London County Council; Ex parte Empire Theatre, "preconceived opinions - though it is unfortunate that a judge should have any - do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded". And in this Court in Reg v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd, a majority was of the opinion that when bias arising from preconceptions is in question, as distinguished from bias through interest, there must be strong grounds for finding its existence. A judge "must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons". In Re JR L; Ex parte C JL, I expressed the view that suspicion of bias may well be ineradicable where the bias is thought to result from preconceptions existing independently of the case. That is so, but it is not to say that bias is inevitably displayed merely because a judge holds preconceptions or reveals that he does.
…
The question is, therefore, not whether the learned trial judge had preconceived views arising from his previous experience, but whether his preconceptions were of such a kind or were so expressed as to lead a reasonable person to apprehend that he was unable to approach the resolution of the case in a fair and even-handed manner without any inclination towards one side or the other.
…
…It is plain that, notwithstanding the views which a judge may have formed in other cases, he may nevertheless be able to assess the evidence in the case before him fairly and to recognise when and where it does not confirm his previous experience. …
[Footnotes omitted - emphasis added]
[21] Vakauta v Kelly (1989) 167 CLR 568 at 575-576, see also at 584-585 (Toohey J).
The issue of apprehended bias was the subject of comment in Re JRL, where Mason J expressed the following views:[22]
…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”. …
[22] Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352.
The strength of the grounds required for the granting of applications for disqualification has been the subject of considerable discussion in the authorities.[23] In Australian National Industries v Spedley Securities[24] a Judge in earlier proceedings had heard evidence and made strong findings that were emphatically expressed, about the credibility and propriety of a party and would have been required to determine the same issues in the proceedings then under consideration. In that case, it was held that the Judge should have recused himself. In the course of his reasons, Kirby P made the following pertinent remarks:[25]
…Where, for example, the apprehension of pre-judgment in the words used is equivocal or the importance of the opinion expressed is qualified, it will be less likely that a court will find disqualification. Where the findings made are emphatically expressed upon issues arguably crucial to subsequent litigation and where that litigation involves matters concerned with the vital interests of the parties, the high measure of stringency required by the law must be scrupulously observed. The present is a case closer to the second than to the first class. The variables of the formula emphasise the importance of the findings made to the parties who complain. …
[23] Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411; R v Burrell (2007) 175 A Crim R 21; R v Vlassakis (2001) 216 LSJS 274; R v Kamleh [2003] SASC 269 at [1], [5], [10], [22], [35], [38], [40]; Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45; R v Masters (1992) 26 NSWLR 450; R v Hutchison (1993) 171 LSJS 364; R v Eastman (No 2) (1995) 121 FLR 155.
[24] Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411.
[25] Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 423; see also at 415-416.
In Burrell[26] the Court had determined an appeal on the basis of a particular understanding of the facts. After judgment had been delivered, the Crown made an application for leave to re-open the appeal on the basis that the Court had proceeded on an incorrect understanding of the facts. The Crown submitted that the members of the Court who had heard the matter should have disqualified themselves due to “prejudgment”. In rejecting this argument, McLellan J observed:[27]
…There are many occasions upon which a judge, either at trial or on an appeal, may be asked to reconsider a ruling which he or she has made, a factual determination or a decision upon a matter of law. Matters are routinely returned from an appellate court to the trial judge to be determined according to law. The ordinary fair minded person understands that in the exercise of the judicial function it will be necessary, from time to time, for a judge to reconsider matters which have previously been considered or which may have been pronounced upon by that particular judge. Such a person, properly informed, would not in my opinion reasonably apprehend that the judge or judges would bring other than an impartial mind to the determination of the matter. …
[Footnotes omitted]
[26] R v Burrell (2007) 175 A Crim R 21.
[27] R v Burrell (2007) 175 A Crim R 21 at [11], that decision was reversed by the High Court on unrelated grounds: Burrell v R (2008) 238 CLR 218.
Having regard to the foregoing, the following factors strongly militate against a conclusion in the present proceeding that the reasonable observer might reasonably apprehend that the Magistrate would not bring an impartial mind to the resolution of the question that he was required to decide:
·The Magistrate had earlier dealt with the sentence to be imposed on a plea. The reasonable observer would be taken to understand that the Magistrate sentenced on what were agreed facts. The Magistrate had made no finding of fact in the sense of resolving the dispute of facts. He had heard no evidence.
·The Magistrate’s earlier involvement was raised in open court at the commencement of the trial. The Magistrate acknowledged his earlier involvement and remarked that he recalled the matter.
·Trial counsel expressed concern as to whether the Magistrate would be comfortable with hearing the trial. The Magistrate in open court indicated that he would be.
·Candetti Constructions was represented by solicitors and counsel at the trial. In-house counsel was also present. Trial counsel took no objection to the Magistrate presiding at the trial. No objection was taken at any time throughout the trial. No complaint was made until the contents of the final judgment were known. The result was adverse to Candetti Constructions. The challenge then followed.[28] This conduct of Candetti Constructions was relevant when considering whether an appearance of bias arose. This was also relevant to any possible waiver.
·The Magistrate’s reasons for judgment following the trial demonstrate that he approached his fact finding exercise with an open mind. A number of his factual conclusions differ from the facts accepted by him for the purposes of sentencing Ace Panel Systems.
[28] See the comments of Brennan, Deane and Gaudron JJ in Vakauta v Kelly (1989) 167 CLR 568 at 572.
I note that this was a case where separate complaints had been laid. In this circumstance, although it was open to the Magistrate to have sentenced on the plea, it may have been desirable for him to have stood over sentencing until the Candetti Constructions’ complaint had been heard and determined. However, there was another consideration – the long delay that would occur in the sentencing process.

In my view the attack on the conclusion of the majority of the Full Court that there had been no apprehension of bias, should be rejected.
The Issue of Waiver
The issue of waiver with respect to disqualification for apprehended bias was considered at length by the High Court in Vakauta v Kelly[29] where Brennan, Deane and Gaudron JJ observed:
Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.
Toohey J also observed:[30]
There is no reason why, in authority or in principle, a litigant who is fully aware of the circumstances from which ostensible bias might be inferred, should not be capable of waiving the right later to object to the judge continuing to hear and dispose of the case. That is not to say that the litigant in such a position must expressly call upon the judge to withdraw from the case. It may be enough that counsel make clear that objection is taken to what the judge has said, by reason of the way in which the remarks will be viewed. It will then be for the judge to determine what course to adopt, in particular whether to stand down from the case. For counsel to invite the judge to withdraw from the case may be quite premature, particularly if the judge acknowledges the apparent bias in what has been said and thereafter takes steps to dispel that apprehension. But, as Dawson J noted in Re JR L; Ex parte C JL, suspicion of bias based on preconceptions existing independently of the case "may well be ineradicable". In that situation there will be no option but to ask the judge to disqualify himself. In any event objection must be taken: see Re McCrory; Ex parte Rivett. It was not taken in the present case.
In the result, when a party is in a position to object but takes no steps to do so, that party cannot be heard to complain later that the judge was biased. It was suggested during argument that this situation may be one, not of waiver, but of estoppel. The distinction between waiver and estoppel was drawn by Isaacs J in Craine v Colonial Mutual Fire Insurance Co Ltd, in a passage which has been referred to on many occasions. See also Spencer Bower and Turner, The Law Relating to Estoppel by Representation, 3rd ed. (1977), p 317-320. Notwithstanding the difficulties that do arise from time to time in distinguishing between waiver and estoppel, the situation here is more akin to the former than to the latter. Waiver involves a decision by the party against whose case bias is shown to raise no objection. It is this conduct which is in question rather than the conduct of the other party. The other party does not alter his position in reliance on that decision, although it is true that, had objection been taken at the time, the trial judge may have disqualified himself and the action could have been heard before another judge without serious loss of time. The situation is one in which the law prevents a party to litigation from taking up two inconsistent positions; he is held to his election. While, of course, the community has an interest in knowing that cases are decided impartially, that interest is not affected adversely by a doctrine which refuses a party to litigation the opportunity to resile from a position he has taken. …
[Footnotes omitted]
[29] Vakauta v Kelly (1989) 167 CLR 568 at 572.
[30] Vakauta v Kelly (1989) 167 CLR 568 at 587-588.
In my opinion the approach of the majority in Vakauta supports the view that waiver generally applies in criminal cases in the same way as in a civil case. Although the principle is expressed in general terms, the Court in no way suggests that it is to be confined to civil proceedings.
The issue of bias in criminal proceedings was more directly addressed by Dawson J who observed:[31]
There can, I think, be no doubt that an objection upon the ground of bias can be waived. Even where it is a question of the public apprehension of bias, the parties themselves must be competent to waive the objection. Although justice must manifestly be seen to be done, where a party, being aware of his right to object, waives that right, there will be little danger of the appearance of injustice. In the case of a criminal prosecution where the public is directly interested in the outcome, it may be different, but even in such a case, Isaacs J, in Dickason v Edwards, was clearly of the view that a party may waive the objection. At 260 he said:
“So that the principle seems to me to be this - that, if the person whose presence is challenged can fairly be said to be biased, either by reason of his necessary interest or by reason of some pre-determination he has arrived at in the course of the case, then he ought not to act unless there is something to relieve him from these disqualifications. Even in a public prosecution a party may waive the objection. …”
[Footnote omitted]
[31] Vakauta v Kelly (1989) 167 CLR 568 at 577-578.
Similarly, Toohey J referred to the approach of Isaacs J in Dickason v Edwards[32] with approval when adopting the earlier statement of the High Court in Watson; Ex parte Armstrong,[33] where the majority said:[34]
... the rule that a judge may not sit to hear a case if it might reasonably be considered that he could not bring a fair and unprejudiced mind to the decision applies to every court in Australia, subject only to the exceptions (statutory authority, necessity and waiver), mentioned by Isaacs J in Dickason v Edwards none of which has any application to the present case.
[Footnote omitted]
[32] Dickason v Edwards (1910) 10 CLR 243 at 260.
[33] R v Watson; Ex parte Armstrong (1976) 136 CLR 248.
[34] Vakauta v Kelly (1989) 167 CLR 568 at 586 adopting R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263.
Although the High Court has not expressly stated that there may be waiver with respect to disqualification for bias in a criminal matter, in Antoun,[35] the Court applied the test set out in Ebner with respect to apprehended bias, in a criminal matter. It is to be noted that the test in Ebner which was expressed as being “subject to qualifications relating to waiver … or necessity” has been applied in criminal matters in superior courts in Australia.[36]
[35] Antoun v The Queen (2006) 159 A Crim R 513 at 523 (Kirby J), at 527 (Hayne J), at 540-541 (Callinan J).
[36] See eg Kyriacou v Police (2007) 251 LSJS 59 at [42]-[63] (Gray J); see also Knaggs v Director of Public Prosecutions (NSW) (2007) 170 A Crim R 366 at 386-388 (Campbell JA).
It is instructive to record that the comments of the majority in Vakauta v Kelly with respect to waiver have been applied in a number of criminal matters in superior courts. In the decision of Mills[37] Debelle J referred to the observations in Vakauta v Kelly before further observing:
Generally speaking, a protest should be made by a party’s legal representative and, in the absence of any protest, the consequence may be that the party has waived his right to object.
Similarly, in Gamage v State of Western Australia,[38] Steytler P commented that the fact that no complaint about the conduct of the Judge in that case was made by the appellant or his counsel at any time during or prior to the trial was “of itself,… a matter of some significance.” Steytler P set out the observations of the majority in Vakauta v Kelly in support of this proposition.
[37] Mills v Police [2004] SASC 14 at [11].
[38] Gamage v State of Western Australia [2008] WASCA 49.
The approach of Steytler P in Gamage was referred to with approval in the decision of Bleechmore v Keating.[39] In the course of his consideration of the issue of apprehended bias, Hasluck J commented:[40]
The decided cases, including Gamage, indicate that it is a matter of importance in dealing with an issue of this kind as to whether a complaint in a comprehensive form was voiced at the time the acts complained of occurred. …
[39] Bleechmore v Keating [2008] WASC 309.
[40] Bleechmore v Keating [2008] WASC 309 at [83].
The Queensland Court of Appeal in McCosker[41] recently reviewed the authorities considering the issue of waiver in criminal proceedings. Although the members of the Court differed as to the outcome of the facts, all agreed that waiver could arise in criminal proceedings. With respect to the question of waiver Keane J observed:[42]
[41] R v McCosker [2010] QCA 52.
[42] R v McCosker [2010] QCA 52 at [3]-[5].
On the question whether an accused in a criminal trial may waive the requirement that all members of the jury be seen to be impartial, it is true to say that authority is scant. But such authority as there is points to an affirmative answer to the question. Thus in R v McHardie and Danielson, it was held that an accused person who escaped from custody while his trial was in progress had effectively waived his right to be present at his trial, even though this entitlement is considered to be a fundamental aspect of a fair trial. The court said that:
Notwithstanding the general principle that at an indictable offence trial before a judge and jury the accused’s presence is normally a prerequisite to a fair trial, his failure to appear after the trial has started, through his escape from lawful custody, can correctly be described and found to be a waiver of his right to be present at his trial …
It is not sufficient to deny the conclusion to which R v McHardie and Danielson points to say that the entitlement to a manifestly impartial jury is not simply a private right but a matter of public right and interest in the due administration of criminal justice. As Kirby P (as his Honour then was) recognised in Burwood Municipal Council v Harvey, the decision of the High Court in Vakauta v Kelly established that an individual litigant may waive the public’s interest in the conduct of a manifestly fair trial.
Use of the terminology of waiver by way of a shorthand description of the legal consequences of an accused person allowing a trial to proceed without taking a point about a procedural irregularity may tend to blur the focus on the point that the principle in issue is concerned with the fairness of the trial. Where a party knows of a procedural irregularity, but knowingly stands by and takes his or her chances with the verdict, rather than calling a halt to the proceeding, there is nothing unfair in holding that party to his conduct.
[Footnotes omitted]
Similar observations were made by Chesterman J:[43]
There are sound reasons for not permitting an accused with knowledge of the ground of objection to take it until after an adverse verdict is brought in. The reason was expressed in the joint judgment of Brennan, Deane and Gaudron JJ in Vakauta (167 CLR 568 at 572). Their Honours said:
Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then … attack the judgment on the ground that … there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time … or the judge had then be asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias … or … may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment …
The passage was quoted with approval by Gleeson CJ, Heydon and Crennan JJ in Smits v Roach (2006) 227 CLR 423 at 439–440.
The censure applies with equal force to a criminal trial. The fair minded and informed observer is more likely to lose confidence in the administration of criminal justice if an accused could behave as described: reserve the right to object to a juror about whom he knows there is an apprehension of bias until after verdict and then object only if it be guilty. The fair minded and informed observer would think that such conduct amounted to manipulation of the processes of the criminal law to the accused’s unfair advantage and the detriment of the due prosecution of offenders. Such a conclusion would erode confidence in the administration of justice, and serve to bring it into disrepute. The fair minded and informed observer, being a citizen, has an interest in common with fellow citizens in the due prosecution of those charged with serious criminal offences. The trial process must be fair, and be seen to be such, but there is no unfairness in requiring an accused who has a right to object to the selection of a juror, and knows of the right, to take it or forgo it. There is no unfairness, or appearance of unfairness, in holding an accused to an informed acceptance of the constitution of the court which is to try him.
[43] R v McCosker [2010] QCA 52 at [90]-[92].
The authorities discussed above make clear that a party may waive the right to object in a criminal matter such as the within proceeding.
Further, it is well established that as a general rule, the conduct of counsel at trial binds the party they represent. In Nudd,[44] Gleeson CJ made the following pertinent observations:[45]
…A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise. Considerations of fairness often turn upon the choices made by counsel at a trial. In TKWJ v R, the appellant complained that evidence of his good character was not led. This, it was said, was unfair. In rejecting that argument, this Court said that the failure to call the evidence was the result of a decision by counsel, and that, viewed objectively, it was a rational decision. That, in the circumstances of the case, was conclusive. It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel's decisions bind the client. If it were otherwise, the adversarial system could not function. The fairness of the process is to be judged in that light. The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel's conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct.
[Footnotes omitted - emphasis added]
[44] Nudd v R (2006) 225 ALR 161.
[45] Nudd v R (2006) 225 ALR 161 at [9].
In accordance with the observations of the High Court in Nudd, Candetti Constructions is bound by the conduct of its counsel at trial. The importance of not permitting Candetti Constructions to resile from the position of its counsel at trial is emphasised by the serious nature of the allegation asserted by Candetti Constructions, namely that the Magistrate might not bring an impartial mind to his determination of the matters before him at trial.
It is to be recorded that whether or not Candetti Constructions was specifically aware of the Magistrate’s findings in the earlier decision, waiver by its counsel to any objections to the Magistrate hearing the matter before him would be sufficient. In Smits v Roach,[46] the High Court considered the issue of whether it was sufficient for counsel to know of a disqualifying circumstance, rather than the party being represented, where counsel did not raise an objection on that basis to the judicial officer hearing the matter. In that matter, the Court was of the view that it was sufficient that counsel knew of the disqualifying circumstance, and that a failure to object did amount to waiver, irrespective of whether specific instructions were provided by the client on the issue, or whether the client even knew of the issue. In the course of their joint reasons, Gleeson CJ, Heydon and Crennan JJ commented:[47]
…Indeed, in most cases litigants in the position of the respondents, or trial judges, or an appellate court, would have no reliable basis for discriminating between knowledge of counsel and knowledge of counsel's clients. They are not privy to communications between counsel and their clients. Ordinarily, those are confidential and privileged. When a litigant is legally represented, Judges communicate with counsel, not with the litigant. When, as sometimes occurs, a judge makes a disclosure of some matter for the purpose of enquiring whether a party desires to make submissions about possible disqualification, the response will come from counsel, not from the party. The judge may have no way of knowing what, if any, communications have taken place between counsel and client. The appellants were represented at trial by Mr Lindsay. If they had objected to McClellan J sitting, it would have been Mr Lindsay who would have made the objection. If the judge had disclosed his relationship with Mr Geoff McClellan, it would have been to Mr Lindsay that the disclosure would have been made, and it would have been for Mr Lindsay to respond. What, if anything, he might say to, or hear from, his clients before making that response, in the ordinary case, would be something of which neither the judge nor the respondents would know. If Mr Lindsay said that there was no objection to McClellan J sitting then it would not be for McClellan J, or the respondents, to investigate whether this was done upon instructions from his clients. Bearing always in mind that the ultimate question concerns the legal consequences for the respondents, does it make a difference that, in the present case, legal professional privilege having been waived, it is now known that Mr Lindsay, aware of the judge's relationship with Mr Geoff McClellan, raised no objection, but did so (let it be assumed) without having taken instructions from the clients? The answer to that question turns upon the principle according to which Mr Lindsay was representing his clients. It is a principle that involves, but is not limited to, general concepts of agency.
The adversarial system of litigation operates upon the basis that a party is generally bound by the conduct of counsel, and that counsel has a wide discretion as to the manner in which proceedings are conducted. The width of that discretion is reinforced by the role of the barrister as an officer of the court, by the barrister's paramount duty to the court, and by the public interest in the efficiency and finality of the judicial processes. …
…
If McClellan J had raised the matter of his relationship with Mr Geoff McClellan in the course of the original discussion as to whether any party objected to his sitting, and Mr Lindsay had said there was no objection, neither the judge nor the respondents would have (or, for that matter, could have) investigated the question whether Mr Lindsay had instructions from his clients to say what he did. It cannot make a difference, as far as the legal consequences for the respondents are concerned, that the case is one of omission by Mr Lindsay. In the course of the litigation, Mr Lindsay's conduct included what he did not do as much as what he did. Failure to object to evidence or to pursue a particular line of argument, may, from one point of view, be an omission, but it is part of the conduct of the case. Nor is it possible to distinguish between the failure to object considered in Vakauta v Kelly, where the potentially disqualifying conduct occurred in court, and the failure to object in the present case, where there was a potentially disqualifying circumstance known to counsel. Indeed, the case illustrates the futility of endeavouring to assign an omission by counsel to either a particular time or a particular place.
[Footnotes omitted]
Kirby J agreed with the conclusion of the majority that, in the circumstances of that case, there had been a waiver by counsel irrespective of the instructing clients’ knowledge.[48]
[46] Smits v Roach (2006) 227 CLR 423.
[47] Smits v Roach (2006) 227 CLR 423 at [45]-[46], [48].
[48] Smits v Roach (2006) 227 CLR 423 at [132]-[139].

In accordance with the above authorities, I consider that in the circumstances of the present proceeding as earlier set out, had there been an appearance of bias, there was a waiver on the part of Candetti Constructions precluding any reliance on that issue.
Two Remaining Matters
Two remaining matters need to be addressed.
The first is that in Kuru v State of New South Wales,[49] the High Court referred to the need for an appellate court to consider as far as practicable all issues arising on the appeal. This is a pertinent observation when consideration is given to the history of this matter. During the course of their reasons, Gleeson CJ, Gummow, Kirby and Hayne JJ commented:
The appeal to this Court should be allowed. There was neither statutory nor common law justification for the police remaining on the appellant's premises. The matter must be remitted to the Court of Appeal for consideration of the outstanding issues about damages. That outcome means that this Court cannot make orders disposing finally of the dispute between the parties. This Court has said on a number of occasions that, although there can be no universal rule, it is important for intermediate courts of appeal to consider whether to deal with all grounds of appeal, not just with what is identified as the decisive ground. If the intermediate court has dealt with all grounds argued and an appeal to this Court succeeds, this Court will be able to consider all the issues between the parties and will not have to remit the matter to the intermediate court for consideration of grounds of appeal not dealt with below.
[Footnote omitted]
[49] Kuru v State of New South Wales (2008) 236 CLR 1 at [12].
In the present proceeding, the appeal on the merits has not yet been heard. That appeal has been delayed for more than two years. The substantive issue on the appeal will now need to be considered by the Senior Judge. It is possible that the appellate process will continue either from this judgment or from the decision of the Senior Judge. If the appeal is allowed and a retrial ordered, that retrial is likely to be heard more than six years after the incident. This is clearly undesirable. This is not in the interests of justice. The Senior Judge should have disposed of all issues before him.
The second matter relates to the manner in which the two separate proceedings against Ace Panel Systems and Candetti Constructions were processed by the Industrial relations Court.
Proceedings were separately instituted against each company. They were filed at different times. However, the complaint against Candetti Constructions was filed before the hearing of submissions on penalty in respect of Ace Panel Systems. There was nothing in the complaints to alert the Industrial Relations Court that the two complaints were associated in any way.
As can be seen from the history of these proceedings, where one co‑defendant pleads guilty and another does not, and where primary responsibility between the two defendants is contested, it is most undesirable that a court should proceed to sentence one defendant while those contested facts remain unresolved. The risk of imposing apparently inconsistent sentences in these circumstances is very great.
There will be exceptions to that rule. One is where one defendant agrees to give evidence against another. There may well be other circumstances which require that the first defendant be sentenced before the trial of the second. However, that was not this case.
In the circumstances of this case it behoved the prosecutor to inform the Magistrate on the hearing of the case against Ace Panel Systems that proceedings had been commenced against Candetti Constructions. The Magistrate would then have had an opportunity of considering whether he should proceed to sentence Ace Panel Systems or whether he should adjourn the hearing until relevant findings of fact had been made in the case against Candetti Constructions.
Conclusion
I would grant permission to appeal, but would dismiss this appeal.
SULAN J: For the reasons of Gray J, with which I agree, I would grant permission to appeal and I would dismiss the appeal.