Cavaiuolo v Tinlins Wines Pty Ltd - [2007] SASC 204

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
CAVAIUOLO & ANOR v TINLINS WINES PTY LTD
[2007] SASC 204
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Anderson and The Honourable Justice Layton)
6 June 2007
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - REASONABLE SUSPICION OF BIAS
Appeal from a decision of a judge of the District Court involving claims of breach of contract and misrepresentation under the Trade Practices Act 1974 (Cth) - both claims dismissed by the trial judge - during the re-examination of a witness at trial, the trial judge made a comment to counsel to not continue re-examining the witness on a topic which had been raised in cross-examination - trial judge made further comment shortly after clarifying that he had no final views on issues before him - trial continued and further evidence allowed on the topic - whether there was bias or a reasonable apprehension of bias on the part of the trial judge - whether the trial judge erred in not disqualifying himself.
Held: that the trial judge was merely expressing a tentative view - that there was no bias or reasonable apprehension of bias on the part of the trial judge - that the trial judge did not err in not disqualifying himself. Appeal dismissed.
Johnson v Johnson (2000) 201 CLR 488, applied.
Vakauta v Kelly (1989) 167 CLR 568; IOOF Australian Trustees Ltd v SEAS Sapfor Forests Pty Ltd (1999) 78 SASR 151; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Antoun v R (2006) 80 ALJR 497; R v Watson; ex parte Armstrong (1976) 136 CLR 248; Livesey v NSW Bar Association (1983) 151 CLR 288; Re JRL; ex parte CJL (1986) 161 CLR 342; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Re Refugee Review Tribunal; ex parte H [2001] HCA 28; Galea v Galea (1990) 19 NSWLR 263; Re Keely; Ex parte Ansett Transport Industries (Operations) Pty Ltd (1990) 64 ALJR 495; Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310; Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, discussed.

CAVAIUOLO & ANOR v TINLINS WINES PTY LTD
[2007] SASC 204
GRAY J

This is an appeal against a decision of a District Court Judge. The appellants contended on appeal that comments of the trial Judge made during the course of the trial would have caused a reasonable observer to apprehend that the Judge would not bring an impartial mind to the resolution of an issue in the trial. Orders were sought setting aside the judgment and directing a retrial.
Background
The appellants, Mario and Anna Cavaiuolo, were unsuccessful plaintiffs in a trial against the defendant and respondent, Tinlins Wines Pty Ltd.
I adopt the exposition of the facts contained in Anderson J’s judgment, and will refer to the facts only as is necessary to understand these reasons.
During the course of the trial, counsel for the respondent asked the following question during re-examination of Warren Dean Randall, witness for the respondent:
[Counsel for the respondent]:     In a series of exchanges with [the counsel for the appellants] yesterday he was putting a scenario to you that you were profiting out of the purchase of cheap grapes from [the first appellant] in 2003. That was coupled with a suggestion that it was part of a methodology to get land and cheap grapes from [the first appellant] in 2004. Do you recall those exchanges.
At this point, counsel for the appellants objected. The following exchange then took place:
[Counsel for the appellants]:    I don’t think that’s a fair summary.
His Honour:  I wasn’t going to say anything until the end of Mr Randall’s evidence, but I can tell you not to trouble yourself about that topic.
[Counsel for the respondent]:     Thank you. I will move to a sub topic, related but not on the same topic.
After this exchange, counsel for the respondent asked two further questions before concluding re-examination. Immediately thereafter the Judge stated:
Before you call your next witness, [counsel for the respondent], I will just say one or two things. They are not an intimation, but they are for the consideration of both counsel, both solicitors and both parties.
I want to emphasise that, having not yet heard all of the evidence that is foreshadowed, having not heard one word of addresses yet from counsel, I express only tentative views. But I have heard very long evidence from the [first appellant] and from Mr Randall of the [respondent].
I can say this: that I will need very detailed argument in support of any suggestion that the [first appellant] has lied or knowingly made any misrepresentation in his evidence. Similarly, I would need detailed argument in support of any suggestion of a conspiracy by Mr Randall or the [respondent] to get fruit from the [first appellant] by the back door – my word, not that of any counsel – or to purchase the [appellants’] vineyards in 2004 or for any suggestion that there’s mal vides on the part of the [respondent] in the preparation of documents or in the discovery and production of documents. It seems to me that the two principal witnesses have generally been doing their best to give accurate evidence.
That is all I wish to share with you. You are both experienced counsel, I have not the slightest doubt that each of you has given appropriate advice that counsel would give to parties, to your respective clients, before the trial began and that each of you – in so far as you’re permitted to do so while witnesses are in the box – have been speaking to your clients and your solicitors, possibly your witnesses, in the way that counsel are expected to do in discharge of their duties. So I am quite confident that each of you has been doing whatever you can to explain to everyone who needs to have it explained to them what the costs of continuing litigation are and so on.
For what that is worth, they are my tentative impressions, having heard about three weeks of evidence. I am ready to proceed with the trial.
This statement by the Judge had been foreshadowed the previous day. The Judge had then observed:
I was going to leave it until tomorrow and I may still, but I will take an opportunity to share with you both some very tentative views I have so that during the week when we are not going to be sitting you can consider them. The things I might share with you are things like it’s going to be difficult for me to accept this sort of observation about the other side. It will be a tentative view and I will be listening to every submission made in addresses. We haven’t even finished the evidence yet, but that after three weeks there are some things which I think it would be desirable anyhow that I share with you now that might foreshorten any great lengthening of the trial. It may foreshorten any application for mass witnesses in rebuttal, further witnesses for the defence.
Issue on Appeal
The issue to be determined is whether the Judge’s comment “I wasn’t going to say anything until the end of Mr Randall’s evidence, but I can tell you not to trouble yourself about that topic” created a reasonable apprehension of bias.
Counsel for the appellant submitted, both during the trial and on appeal, that the Judge’s comment, by indicating that there was no need for counsel for the respondent to re-examine on a particular topic, could reasonably result in a fair minded lay observer concluding that the Judge might not bring an impartial and unprejudiced mind to the resolution of the dispute.
The phrase “you need not trouble yourself about that” uttered by a judge would ordinarily convey to counsel that the Judge agreed with counsel on that point and accordingly that counsel could continue on that basis. Such an expression, or similar expressions, are commonly used by the judiciary. It is reasonable to conclude that a lay observer would understand those words to convey the same meaning. However, the words may not convey such a meaning if understood within a particular context. Statements preceding and following such an utterance may be material to the meaning reasonably conveyed.
The Legal Principles
It is settled law that a judge should not hear a case if, in the circumstances, a reasonable observer would entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the question.[1] It has been suggested that the reason that only appearance of bias need be shown, rather than actual bias, is that the principle that courts and tribunals be independent and impartial is so important that even the appearance of a departure from it can undermine the integrity of the judicial system.[2]
[1] R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 258-263; Livesey v N.S.W. Bar Association (1983) 151 CLR 288 at 293-294; Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 at 359 (Wilson J).
[2] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
Where there is no allegation of actual bias, as in the present case, the test can be difficult to apply. As Wilson J observed in Re J.R.L.; Ex parte C.J.L.,[3] the test involves “questions of degree and particular circumstances which may strike different minds in different ways”.[4] In Laws v Australian Broadcasting Tribunal,[5] Gaudron and McHugh JJ observed:[6]
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. … 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.
The test does not require the reasonable bystander to apprehend a real likelihood or danger of bias. What the test requires is a “real and not remote” possibility of bias.[7]
[3]    Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342.
[4]    Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 at 359 (footnotes omitted).
[5]    Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70.
[6]    Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100.
[7]    Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Re Refugee Review Tribunal; Ex part H [2001] HCA 28 at [27].
It should be noted that the inquiry to be undertaken is of the impression that would be given to the reasonable bystander, not whether the Judge in actual fact had pre-judged the issues. In Ebner v Official Trustee in Bankruptcy,[8] Gleeson CJ, McHugh, Gummow and Hayne JJ observed:[9]
Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
[emphasis original]
[8] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
[9] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [7].
It should also be noted that the test is whether there is a reasonable apprehension that the judge will not decide the case impartially or without prejudice, and not whether the judge will decide the case adversely to one party. In Re J.R.L.; Ex parte C.J.L.,[10] Mason J observed:[11]
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.
…
Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
[10] Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342.
[11] Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 at 352.
Taking into account these considerations, the High Court in Ebner identified two steps that should be followed when applying the apprehension of bias principle:[12]
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
[12] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8].
Judicial comment seldom occurs in a vacuum. When determining whether a particular statement could engender an impression of bias, an appeal court must take into account the context surrounding the statement. As Wilson J observed in Re J.R.L.; Ex parte C.J.L.:[13]
A court of review must be careful not to exaggerate the significance of actions or statements made by a judge in the course of a proceeding. There must be “strong grounds” … for inferring the existence of a reasonable suspicion.
Similarly, in Galea v Galea[14] Kirby ACJ observed:[15]
In judging the suggestion of a supervening apprehension of bias, it is reasonable to assume that the hypothetical lay observer would base the opinion on a fair assessment of the judge's conduct in the context of the whole of the trial. A judgment of the loss of impartiality and neutrality would not be made from a short and emotional exchange taken out of context and then weighed in isolation.
[13] Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 at 359-360.
[14] Galea v Galea (1990) 19 NSWLR 263.
[15] Galea v Galea (1990) 19 NSWLR 263 at 279.
That surrounding comments of a judge may ameliorate an impression of bias that can arise from a comment has been recognised by the High Court in Vakauta v Kelly,[16] where Brennan, Deane and Gaudron JJ observed:[17]
[I]f 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.
[16] Vakauta v Kelly (1989) 167 CLR 568.
[17] Vakauta v Kelly (1989) 167 CLR 568 at 572.
The Resolution of the Issue
The comment of the Judge that the appellants contended gave rise to an apprehension of bias should be placed within the context of the entire trial, including the Judge’s preceding and following comments. The following comments of the Judge made it clear that he had not formed a final view on the topic and was prepared to hear the evidence with an open mind. The Judge emphasised at the beginning of his following comment that, having not yet heard all the evidence, he was expressing only a tentative view. He then said that he would need very detailed argument from either side if they wished to prove that any of the witnesses had lied or knowingly made any misrepresentation in their evidence.
As earlier observed, the Judge foreshadowed this comment with his preceding comment. Through this comment, the Judge explained that he would be sharing some tentative views with the parties for their consideration. The Judge stated that after approximately three weeks of evidence, it would be appropriate to share these tentative views with the parties in order to assist them with the remainder of the trial.
The focus of the inquiry of an appeal court in this circumstance should be directed toward whether a reasonable observer would have an apprehension that the trial Judge would not be prepared to give a party a fair trial. Expressing a tentative view about a point in issue does not necessarily create the impression that a judge has pre-determined the matter. In IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd & Ors,[18] Doyle CJ observed:[19]
To the extent that in the present case the complaint is one of pre-judgment, it is important to understand that the issue is whether the judge is prepared to hear the parties fairly, and not whether the judge has an inclination, and even a firm inclination, to decide a point in a particular way. It is particularly important to bear this in mind in relation to issues that arise in the course of a long case. It is not surprising that, in such a case, a judge might begin to hold, and to indicate, an increasingly firm view on particular points. In a long case the same issue may arise from time to time, or the one issue may be debated from time to time between the judge and counsel. It is to be expected that over time a judge may begin to hold very firm views on particular points, and there is nothing wrong in that, as long as the judge is always prepared to give the parties a proper hearing. And what is involved in that may also depend upon the circumstances. There is no reason why a judge should permit the same point, if it truly is the same point, to be re-agitated at any length.
Similarly, in Antoun,[20] Kirby J observed:[21]
A line is drawn between forthright and robust indications of a trial judge’s tentative views on a point of importance in a trial and an impermissible indication of prejudgment that has the effect of disqualifying the judge from further conduct of the proceedings.
[18] IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd & Ors (1999) 78 SASR 151.
[19] IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd & Ors (1999) 78 SASR 151 at [165].
[20] Antoun v The Queen (2006) 80 ALJR 497.
[21] Antoun v The Queen (2006) 80 ALJR 497 at [29].
In the present case, the Judge made it known that he was only expressing a tentative view, and that he would listen to the remainder of the evidence and addresses with an open mind. The expression of provisional views by a judge are less likely to lead a reasonable observer to apprehend bias where the judge expressly indicates that his inquiry is tentative or exploratory, and allows the parties full opportunity to make submissions in response.[22]
[22] Re Keely; Ex part Ansett Transport Industries (Operations) Pty Ltd (1990) 64 ALJR 495 at 500 (Dawson J).
It is relevant also that the Judge outlined his tentative views at a stage in the trial where a substantial portion of the evidence had been heard and the issues had become reasonably clear. Approximately three weeks of evidence had been heard, including extensive evidence from the first appellant and Mr Randall. In Kaycliff Pty Ltd v Australian Broadcasting Tribunal,[23] Lockhart, Pincus and Gummow JJ observed:[24]
The stage at which a preliminary view is announced appears to us to be relevant. For example, if at the end of the evidence, but before addresses, a judge expresses strong suspicion about a witness’ veracity, one would hardly expect a claim of ostensible bias to be made. If, when an appeal is called on in court, the respondent, rather than the appellant, is asked to argue first, most observers would assume that the appellant was thought to have a strong case. Appellate courts ordinarily take such a course only when examination of the papers gives rise to a provisional view that the judgment appealed from is unsupportable. Again, we apprehend that such an invitation to the respondent, despite its well-known implication, would not be thought to reflect an improper bias, but merely to indicate that the court had already examined the judgment appealed from and, perhaps, written submissions.
[23] Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310.
[24] Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310 at 317.

The effect of the Judge’s comments, when considered in their entirety, was to make it clear that a case needed to be made if the Judge was to be convinced of the particular point. The comments would not have given the reasonable bystander an apprehension that the Judge was not open to being persuaded, rather that the Judge was assisting the parties in how they could persuade him. In Minister for Immigration & Multicultural Affairs v Jia Legeng,[25] the High Court observed that the question to be answered when considering a submission of reasonable apprehension of bias is not whether a Judge’s mind is blank, but whether it is open to persuasion. Gleeson CJ and Gummow J observed:[26]
The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.
[25] Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507.
[26] Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72].
The Judge’s comments in the present case were of the type that courts have recognised can assist the parties in conducting their litigation. In Vakauta v Kelly,[27] Brennan, Deane and Gaudron JJ commented:[28]
Nor will that requirement of the reality and appearance of impartial justice be infringed if a judge with preconceived views about the general reliability of the evidence of a particular medical witness discloses the existence of such views in the course of the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case.
[27] Vakauta v Kelly (1989) 167 CLR 568.
[28] Vakauta v Kelly (1989) 167 CLR 568 at 571.
Judges often form provisional views, of various strengths, as proceedings progress, and expressing those views can be helpful to parties. In Galea v Galea, Kirby ACJ characterised the conduct of the trial Judge as:[29]
His Honour was doing no more than to give the appellant (as he earlier did the respondent) the opportunity to know the progress of his thinking and to correct an unfavourable impression if this was the product of passing inattention or inexperience in the giving of evidence.
[29] Galea v Galea (1990) 19 NSWLR 263 at 279.
Further, it has been suggested that a denial of procedural fairness might occur where, through a judge’s silence on a particular view, the parties are denied the opportunity of correcting or modifying the judge’s preconceptions, opinions and formulating concerns.[30]
[30] Galea v Galea (1990) 19 NSWLR 263 at 279 (Kirby ACJ).
If either counsel wanted to put submissions on credit about the witnesses, including Mr Randall, they were assisted by the Judge’s comments rather than hindered by them. Indeed, as Anderson J has observed in his reasons, several witnesses were in fact examined and cross-examined on the topic after the Judge made the comment complained of, including Warren Ward, a director of the respondent, Paul Rogers, general manager of a McLaren Vale winery, and Adam Jacobs, a viticultural subcontractor. Several exhibits were also tendered on the topic.
Conclusion
In the context of the trial, the statement made by the Judge would not lead a reasonable lay observer to consider that the Judge would do anything other than try the matter fairly. The appeal should be dismissed.
ANDERSON J.
Introduction
This is an appeal from a decision of a judge in the District Court. The appellants had brought an action against the respondent initially for breach of contract and later, by an amended statement of claim, they claimed that the respondent made misrepresentations and had been involved in misleading and deceptive conduct in contravention of the Trade Practices Act 1974 (Cth).
The judge in the District Court dismissed both the claim in contract and the claim under the Trade Practices Act.
Background
The appellants conducted the business of grape growing in the McLaren Vale region and they sold grapes to the respondent who was a grape grower and wholesale wine producer. The sales took place in the 2000 to 2003 vintage years.
The respondent purchased grapes from a large number of growers with some of whom the respondent had entered into a written agreement. The remainder of the growers supplied their grapes pursuant to an oral agreement between the respondent and the grower. The appellants had always supplied grapes pursuant to an oral agreement although it is not in dispute that they were offered, but declined, a written contract by the respondent in 2000.
The appellants argued before the trial judge that the parties entered into an oral agreement in 1999 whereby the appellants were to sell all of their grapes to the respondent at the Average District Price (ADP). The appellants submitted that the specific terms of the agreement were that the parties agreed to an interim price before the vintage, which price was to be paid by the respondent in instalments, and then later, upon the calculation of the ADP for that year, an adjustment would be made to these initial payments to reconcile them with the ADP. The appellants argued further that on several occasions between 1997 and 2003 officers of the respondent made representations to the appellants that they would purchase all of the grapes grown by the appellants apparently on an indefinite basis and on the same adjustment basis as described above. In 2004 the respondent decided not to purchase grapes from the appellants and as a result the appellants commenced the District Court proceedings.
The respondent argued that there was no ongoing agreement between the parties and instead asserted that it negotiated with the appellants each year in the same manner in which it negotiated with all of its uncontracted growers. In other words it was argued that there were separate contracts negotiated and agreed on an annual basis.
Grounds of appeal
The appellants are appealing on the ground that there was bias or a reasonable apprehension of bias on the part of the learned trial judge and as a result they claim that they were denied natural justice. The appellants argue that this alleged bias arose when the trial judge informed counsel for the respondent that there was no need for him to re-examine the respondent's witness, Mr Randell, on certain matters which had been put to him in cross examination. The second ground of appeal is that the judge erred in not disqualifying himself from continuing the trial upon an application by the appellants for him to do so. It was submitted that there was a reason for disqualification in that the judge had already pre-judged the matter by his comment that there was no need to re-examine on the particular topic.
In the cross examination of Mr Randell, a director of the respondent, counsel for the appellants had put several questions to him suggesting that the respondent would directly benefit from breaching its contract with the appellants by refusing to purchase grapes from the appellants at the price that the appellants claimed had been agreed by the parties. It was suggested that this would cause the appellants financial hardship and that this in turn would then allow the respondent to purchase the appellants' grapes and land at a low price. In other words it was suggested that the respondent failed to reach any agreement with the appellants as a means of increasing its bargaining position.
When counsel for the respondent sought to re-examine Mr Randall on the topic, the judge made the following statement:
I wasn’t going to say anything until the end of Mr Randall’s evidence, but I can tell you not to trouble yourself about that topic.
Shortly after making this statement, the judge said:
I want to emphasise that, having not yet heard all of the evidence that is foreshadowed, having not heard one word of addresses yet from counsel, I express only tentative views. But I have heard very long evidence from the plaintiff and from Mr Randall of the defendants.
I can say this: that I will need very detailed argument in support of any suggestion that the plaintiff has lied or knowingly made any misrepresentation in his evidence. Similarly, I would need detailed argument in support of any suggestion of a conspiracy by Mr Randall or the defendants to get fruit from the plaintiff by the back door – my word, not that of any counsel – or to purchase the plaintiff's vineyards in 2004 or for any suggestion that there's mal fides on the part of the defendants in the preparation of documents or in the discovery and production of documents. It seems to me that the two principal witnesses have generally been doing their best to give accurate evidence.
The appellants seek an order that the decision be set aside and that the matter be retried.
Appellants' Argument
Mr Simpson for the appellants argued that the later intimation and the original comment should be read separately, and as a result the intimation was not capable of negating the apprehension of bias that was created by the judge in advising Mr McCarthy, counsel for the respondent, not to trouble himself with re-examining Mr Randall on the topic. Mr Simpson argued that the initial comment showed nothing was going to change the judge’s mind about the view that he had formed.
Mr Simpson relied on the test accepted by the High Court in Johnson v Johnson (2000) 201 CLR 488 at [11] that:
… 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 that the judge is required to decide.
Mr Simpson emphasised that the use of the word “might”, only required that the fair-minded lay observer should apprehend there being a possibility, rather than a probability, that the judge had pre-judged the issue.
Mr Simpson submitted that any apprehension of bias was not dispelled by the trial judge later providing the parties with further opportunities to present evidence on the topic over the remainder of the trial. He submitted that anything that occurred after the trial judge’s initial comment was irrelevant to the question of bias before this court. He argued that the question of bias is to be determined on the simple comment by his Honour set out earlier at [36].
Mr Simpson argued that the comment made by the trial judge indicated an obvious bias, namely, that His Honour would not be assisted by further evidence and would not change his mind on the topic, irrespective of any further evidence that was presented.
Respondents' Argument
Mr McCarthy argued that the judge’s initial comment and the intimation made shortly thereafter should be read together. Mr McCarthy said that, if read together as intended by the trial judge, the two comments clearly showed that the trial judge was only expressing tentative views on the topic. Mr McCarthy submitted that the trial judge acknowledged that he was yet to hear further evidence and addresses from counsel on this topic and also stressed that he would require very detailed argument in support of the suggestion of conspiracy by the respondent. Mr McCarthy submitted that this showed that at this point in time the trial judge had not prejudged the topic but rather, that he was expressing his tentative views on the topic while still fully aware that there would be further evidence and argument to follow. Mr McCarthy submitted that even after the judge's comments, it was still open to the appellants to recall Mr Randall for further examination or to amend their pleadings.
Mr McCarthy emphasised in his submissions that some of the witnesses following Mr Randall were in fact examined and cross-examined on the topic without any restrictions being placed on either counsel’s line of questioning. One such witness was Mr Ward, who was a director of the respondent and was responsible, along with Mr Randall, for making decisions on the purchasing of new vineyards. Mr McCarthy argued that this was further evidence that the topic had not been foreclosed. The other witnesses who gave evidence on the topic were Mr Rogers, who is the General Manager of a McLaren Vale winery, and Mr Jacobs, a viticultural subcontractor. Several exhibits were tendered which dealt with the price paid by the respondent for grapes, details of tonnage of grapes grown by the respondent and grapes purchased by the respondent, and vineyards purchased, sold and held by the respondent.
The Law
Mr McCarthy submitted that the High Court, while gradually refining the test for bias, has also been mindful of the importance in modern litigation of judges undertaking case flow management. He referred to the case of Vakauta v Kelly (1989) 167 CLR 568 where the High Court expressed the view that it was undesirable for a judge to sit completely silent in a non-jury trial.
Mr McCarthy also highlighted the judgement of Doyle CJ in IOOF Australia Trustees Ltd v SEAS Sapfor Forests Pty Ltd (1999) 78 SASR 151 where at [165] his Honour said that in relation to issues of pre-judgement:
… it is important to understand that the issue is whether the judge is prepared to hear the parties fairly, and not whether the judge has an inclination, and even a firm inclination, to decide a point in a particular way. It is particularly important to bear this in mind in relation to issues that arise in the course of a long case. It is not surprising that, in such a case, a judge might begin to hold, and to indicate, an increasingly firm view on particular points.
He also referred to the judgement of Gaudron and McHugh JJ in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, which Doyle CJ referred to in IOOF, where their Honours said: [100]
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.
Their Honours go on to say that:
When suspected prejudgement 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.
Mr McCarthy also argued that the authorities required that the fair-minded observer, in deciding whether they have an apprehension of bias, must view the totality of the evidence before the judge.
I will apply the test from Johnson v Johnson as set out earlier but bearing in mind the comment made by the Court at [13] of that decision:
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. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly, Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case". Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
The test for apprehended bias has more recently been summarised in Antoun v R (2006) 224 ALR 51, where Hayne J quoted from Johnson v Johnson at [51] and said:
If "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", the judge is disqualified from trying the case.
Conclusion
I conclude that it would be artificial to separate His Honour's comments set out at [36] of these reasons with the discussion which followed within what must have been a very short space of time, probably no more than a minute or thereabouts.
It is my view that when read together it is clear that the trial judge was doing no more than trying to assist both parties with how he was observing the issues which were developing to that stage of the trial. He made it perfectly clear that he was not of a final view and that he would hear such further evidence and submissions as the parties chose to provide.
His Honour in fact did just that when he heard further evidence on the topic in respect of which he had made the earlier comment. He then proceeded to hear full argument on the topic in final addresses.
The learned judge was correct in refusing to disqualify himself. It is my view that what happened in this case is reflected very much in the words of the High Court in Johnson v Johnson in the passage referred to in my reasons at [51]. It is my view that the judge merely expressed a tentative view that did not indicate any pre-judgment on his behalf. I would dismiss the appeal.
LAYTON J. I consider that the appeal should be dismissed for the reasons given by Anderson J, as well as the more detailed reasons provided by Gray J.