Kwan v Kang

In *Kwan v Kang*, the Court of Appeal of New South Wales considered an appeal concerning allegations of apprehended bias by a judge. The dispute arose from findings made by Santow J at an interlocutory stage, which the appellant argued demonstrated a pre-judgment of the case.

The primary legal issue before the Court of Appeal was whether the judge's remarks and findings at the interlocutory hearing gave rise to a reasonable apprehension of bias, such that the judge was not impartial and a new trial was warranted. This required the court to apply the test for apprehended bias as established in *Johnson v Johnson*.

The Court of Appeal found that the judge's comments, particularly those made in support of interlocutory evidentiary rulings, were expressed in terms of finality and suggested a pre-judgment of the evidence. The court held that it is undesirable for judges to support interlocutory rulings by commenting on the evidence in a manner that suggests a concluded view. Consequently, the appeal was upheld, the orders of Santow J were set aside, and a new trial was ordered. The first respondent was ordered to pay half the costs of the appeal, and certificates were granted under the Suitors' Fund Act 1951. Further orders were made regarding the appellant's interest in a property to ensure its value remained above $300,000 pending the final determination of the proceedings.