Ding and Ding (No 4)

Ms Ding applied to the Family Court of Australia for the disqualification of Cronin J on the grounds of apprehended bias. The application arose during the substantive trial concerning property settlement and spousal maintenance between Ms Ding (the applicant) and Mr Ding (the respondent). The core of the application concerned a ruling made by the Court on 15 June 2017, during the cross-examination of Mr Ding, regarding the production of a letter over which Mr Ding claimed legal professional privilege. Ms Ding contended that the Court's ruling, which favoured Mr Ding's version of events concerning the letter, demonstrated apprehended bias and would prevent the Court from impartially determining the substantive proceedings. Mr Ding opposed the application.

The legal issue before the Court was whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the substantive proceedings, given the earlier ruling on the disputed letter. This required the Court to consider the nature of the ruling, the reasoning behind it, and whether it indicated a closed mind or pre-judgment of Ms Ding's credit or case. The Court was required to apply the established test for apprehended bias, considering whether the judge's previous finding on a discrete factual issue, based on the balance of probabilities, would lead a reasonable observer to conclude that the judge could not remain impartial in determining the remaining disputed facts.

Cronin J dismissed the application, finding that the ruling on the disputed letter did not give rise to a reasonable apprehension of bias. The Court reasoned that the ruling was a determination of a discrete factual issue on the balance of probabilities, specifically which of two conflicting versions regarding the letter's possession was more probable. The Court emphasised that accepting one party's version on a specific point does not equate to a wholesale rejection of the other party's credit or evidence, nor does it necessarily indicate a closed mind on other issues. The Court referred to established authorities, including *Johnson v Johnson* and *Vakauta v Kelly*, to explain that while adverse findings on credit can sometimes lead to apprehended bias, this is not always the case, particularly when a judge alerts parties to a preconception or makes a ruling based on the relative probabilities of competing accounts. The Court concluded that a properly informed and reasonable observer would understand the ruling as a necessary factual determination on a specific issue, rather than a pre-judgment of Ms Ding's overall case or credit, and therefore, there was no logical connection between the ruling and a feared deviation from deciding the case on its merits.