Lee v Cha

The applicants, Lee and Cha, sought leave to appeal and an order in the nature of prohibition against a District Court judge, Gibson DCJ, to restrain him from continuing to hear proceedings. The core of the dispute concerned allegations of apprehended bias on the part of the judge, arising from his conduct during the proceedings.

The Court of Appeal was required to determine whether the judge’s conduct demonstrated a prejudgment of the character and credibility of a witness, such that a fair-minded lay observer would apprehend bias. This involved distinguishing between legitimate active case management by a judge and the expression of tentative views on substantive issues, particularly in the context of a litigant in person appearing before the court.

The Court considered the principles of apprehended bias, applying the test of whether a fair-minded lay observer, having considered the facts, would have apprehended that the judge might not bring an impartial mind to the issues. The judges found that the conduct complained of, viewed in its entirety and in context, did not demonstrate that the judge had formed a concluded view on the substantive issues or the credibility of witnesses. Rather, the judge’s remarks were seen as part of the process of managing the case and eliciting information, rather than indicating a closed mind.

The applications for leave to appeal and for an order in the nature of prohibition were dismissed.