Reynolds v Rayney - [2023] WASCA 144

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   REYNOLDS -v- RAYNEY [2023] WASCA 144
CORAM:   MAZZA JA
VAUGHAN JA
MULLINS AJA

HEARD:   13 SEPTEMBER 2023
DELIVERED          :   6 OCTOBER 2023
FILE NO/S:   CACV 99 of 2022
BETWEEN:   MARK REYNOLDS
Appellant
AND
LLOYD PATRICK RAYNEY
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   HILL J
Citation: RAYNEY -v- REYNOLDS [No 3] [2022] WASC 324
File Number            :   CIV 1827 of 2015

Catchwords:

Courts and judicial system - Judges - Apprehended bias - Appeal against trial judge's dismissal of application for recusal on ground of apprehended bias - Judge was employee and subsequently partner at law firm of counsel appearing at trial - Whether fair‑minded lay observer might reasonably apprehend that trial judge might not bring an impartial mind to decision - Knowledge to be attributed to fair‑minded lay observer - Whether non‑disclosure of prior working relationship reinforces apprehension of bias - Turns on own facts

Legislation:

Nil

Result:

Application for extension of time to appeal granted
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	N Ekanayake

Solicitors:

Appellant	:	In person
Respondent	:	Bennett

Case(s) referred to in decision(s):

Antoun v The Queen [2006] HCA 2; (2006) 80 ALJR 497
Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 65 FCR 215
Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43
Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225
British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283
Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Emanuele v Emanuel Investments Pty Ltd (in liq) (1997) 139 FLR 36
Finch v Heat Group Pty Ltd [2022] FedCFamC2G 848
Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530
In the Marriage of Kennedy and Cahill (1995) 19 Fam LR 173
Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419
Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272
Rayney v Legal Profession Complaints Committee [2018] WASCA 73
Rayney v Reynolds [No 3] [2022] WASC 324
Rayney v Reynolds [No 4] [2022] WASC 360
Rayney v Reynolds [No 4] [2022] WASC 360 (S)
Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342
Re Polites; Ex parte The Hoyts Corporation Pty Ltd [1991] HCA 25; (1991) 173 CLR 78
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982
Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128
S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358
Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568
Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41

JUDGMENT OF THE COURT:

Overview

The appellant, Dr Reynolds, was sued by the respondent, Mr Rayney, in defamation proceedings. The action was tried before the primary judge (Hill J). Mr Rayney was represented at trial by Martin Bennett of counsel. There was a prior association between the primary judge and Mr Bennett. The primary judge and Mr Bennett had a previous working relationship which ended some 15 years before the trial. The previous working relationship between the primary judge and Mr Rayney's counsel was unknown to Dr Reynolds at the time of the trial.
After becoming aware of the previous working relationship, at a time when judgment was reserved, Dr Reynolds brought an application that the primary judge recuse herself from determining the defamation action.
The primary judge dismissed the recusal application: Rayney v Reynolds [No 3].[1] Subsequently her Honour handed down judgment in the defamation action.[2] The primary judge upheld Mr Rayney's claim. Judgment was entered for Mr Rayney against Dr Reynolds for damages in the amount of $350,000 together with interest and costs. Costs were awarded on an indemnity basis.[3]
[1] Rayney v Reynolds [No 3] [2022] WASC 324 (primary reasons).
[2] Rayney v Reynolds [No 4] [2022] WASC 360.
[3] Rayney v Reynolds [No 4] [2022] WASC 360 (S).
Dr Reynolds has sought leave to appeal against the dismissal of the recusal application. If leave is granted, and the appeal is allowed, Dr Reynolds seeks orders setting aside the judgment entered against him in the defamation action. While there are five grounds of appeal there is ultimately a single substantive issue that is determinative of the appeal. This is whether the primary judge erred in law in not recusing herself because, contrary to the primary judge's determination, there was a reasonable apprehension of bias arising from the previous working relationship between her Honour and Mr Bennett.
For the reasons that follow leave to appeal should be refused and the appeal should be dismissed. The primary judge was correct to conclude that there was not a reasonable apprehension of bias which required that her Honour recuse herself from determining the defamation action.

Background facts

It is only necessary to refer to the facts relevant to the recusal application. Those facts are within small compass and were not in dispute. The primary judge was appointed as a judge of the Supreme Court on 4 June 2019. Thereafter her Honour became the case manager of the primary proceedings. In due course it will be necessary to refer to some matters that arose during the case management phase of the primary proceedings. More relevantly, however, the primary proceedings were tried before her Honour on 21 and 22 July 2020. Mr Bennett appeared as counsel for Mr Rayney and Hugh Selby of counsel appeared for Dr Reynolds.
Judgment in the primary proceedings was reserved.
In July 2022, while judgment was reserved in the defamation action, Dr Reynolds became aware of a previous working relationship between the primary judge and Mr Bennett. Dr Reynolds identified the previous working relationship from a profile of the primary judge that had at all material times appeared on the Supreme Court's website. The profile recorded that the primary judge joined Bennett & Co as an articled clerk in 1994. (It was at all times common ground that Bennett & Co was a firm associated with Mr Bennett and was a predecessor firm to the firm acting for Mr Rayney in the primary proceedings.) Her Honour was promoted to partner in 2001. The primary judge became a partner of a different firm in 2005. Thus it may be inferred that there was a previous working relationship between the primary judge and Mr Bennett during 1994 to 2005 (ie a period of 11 years). For part of that period Mr Bennett and her Honour were in a relationship of employer and employee; for the remainder the relationship was one of partnership. That previous working relationship ended some 15 years before the trial of the primary proceedings.
On 18 July 2022 Dr Reynolds, then acting for himself, foreshadowed making a recusal application. Mr Bennett responded to that communication. Mr Bennett stated that, since her Honour retired from the Bennett & Co partnership, there had been no professional or social relationship between him and the primary judge. The lack of any continuing association - and that the prior association had ended some 15 years before the trial - was unchallenged in the recusal application and on appeal.
Dr Reynolds brought the recusal application by a summons dated 1 August 2022. The application was supported by Dr Reynolds' affidavit affirmed 25 July 2022 and Mr Selby's affidavit affirmed 21 July 2022.
Among other things, Dr Reynolds said that certain case management decisions 'take on a different interpretation' given the previous working relationship. Three matters were referred to in particular. First, a change in the date of a directions hearing from 11 to 16 December 2019 (said to be known to Mr Bennett but not to Dr Reynolds). Second, insofar as the hearing on 16 December 2019 included the hearing of Dr Reynolds' application that the defamation action be tried before a jury, the provision of affidavit material (including one lengthy affidavit) on behalf of Mr Rayney immediately prior to the interlocutory hearing. Dr Reynolds said that his application for a jury trial was dismissed immediately, ie without her Honour apparently giving herself the opportunity to review the lengthy affidavit. Third, the primary judge ordering that Dr Reynolds pay Mr Rayney's costs of the application for a jury trial without hearing from Dr Reynolds.
Dr Reynolds said that, had he known of the previous working relationship, he would have asked that the application for a trial by jury be heard by another judge. Dr Reynolds also said that he would have asked that the trial be before another judge.
Mr Selby, supported by Dr Reynolds, raised two additional so‑called 'concerning actions' taken by Mr Bennett during the trial. First was an allegation Mr Bennett made in open court that Dr Reynolds had intimidated one of Mr Rayney's witnesses (an allegation that Dr Reynolds denied). The allegation was not retracted (but nor was it pursued) after CCTV footage of the relevant area was made available to counsel. Second, in his closing address Mr Bennett made frequent reference to Dr Reynolds not giving evidence. The complaint was that this was put in a theatrical manner that was disparaging of Dr Reynolds.
Mr Selby said that, had he known of the previous working relationship, he would have dealt with these two matters differently. As to the allegation of intimidation, Mr Selby would have pressed Mr Bennett to set out evidence of the intimidation or to formally withdraw the allegation. As to the closing address, Mr Selby would have considered it necessary to interrupt. Alternatively, Mr Selby would have been more forceful in dealing with the contention in his own closing address.

Decision of the primary judge

In seeking recusal, Dr Reynolds relied on: (1) the previous working relationship; and (2) the failure to disclose the previous working relationship. Mention was also made of the five instances referred to by Dr Reynolds and Mr Selby, ie the case management decisions that were said to 'take on a different interpretation' and the alleged 'concerning actions' taken by Mr Bennett during the trial.
The primary judge referred to the factual and procedural background and the parties' submissions. Her Honour observed that there was no allegation of actual bias. Nor was it suggested that a conscious decision was made not to mention the previous working relationship. Having identified that the allegation made was one of reasonable apprehension of bias, her Honour then dealt with the applicable legal principles in orthodox terms. On appeal Dr Reynolds does not contend that the primary judge misstated the applicable legal principles. However, it is alleged that her Honour misapplied the applicable legal principles by considering the question of reasonable apprehension of bias from a subjective perspective rather than approaching the question from the objective perspective of a fair-minded lay observer.
Her Honour accepted that the previous working relationship was relatively long. However, in her Honour's view, the relationship could not be described as 'long and recent' given that it ended more than 15 years before the trial.[4]
[4] Primary reasons [34].
Importantly, the primary judge said that Dr Reynolds did not articulate an alleged connection between the previous working relationship and a possible departure from impartial decision-making.[5] Rather, Dr Reynolds relied on things which he said meant either Mr Selby or he would have approached aspects of the proceedings differently had he been aware of the previous working relationship.[6] In this respect the primary judge considered each of the five matters raised by Dr Reynolds and Mr Selby.[7] Her Honour held that nothing in those matters was capable of giving rise to any reasonable apprehension of bias.[8] The various conclusions to that effect are not specifically challenged by any ground of appeal.
[5] Primary reasons [32], [35], [46].
[6] Primary reasons [32].
[7] Primary reasons [38] - [43].
[8] Primary reasons [40] - [43].
The primary judge addressed Dr Reynolds' reliance on the non‑disclosure of the previous working relationship in two ways. First, in her Honour's view, this was not the fundamental question. Rather, the fundamental question was whether Dr Reynolds had established that there was a reasonable apprehension of bias.[9] Second, her Honour considered that the failure to disclose the previous working relationship did not deprive Dr Reynolds of any opportunity to advance arguments or submissions at trial. Accordingly, the non-disclosure was of no legal consequence.[10]
[9] Primary reasons [37].
[10] Primary reasons [44].
Her Honour concluded:
[T]here is no suggestion that there is any continuing professional or personal connection between myself and counsel for [Mr Rayney] …
[Dr Reynolds] did not, in his oral or written submissions, clearly articulate what he said was the logical connection between the Prior Working Relationship and the 'feared deviation' from the course of deciding this case on its merits.
I do not consider that there are any grounds, let alone any substantial grounds, on which the Prior Working Relationship between myself and counsel for [Mr Rayney] might give rise to a reasonable apprehension to a fair-minded lay observer that I might not decide the case on its merits.[11]
[11] Primary reasons [45] - [47].

Grounds of appeal

Dr Reynolds advanced five grounds of appeal:
Her Honour made mixed errors of fact and law, those errors being the combination of:
The following legal errors:
1.The legal error in the failure to apply the two-part test set forth in Ebner (see paragraphs 20, 31,32, 35 and 46 of the judgment) through the lens of the reasonable lay observer;
2.The consequential legal error of approaching the issue of recusal from an after the event 'there's nothing to see here' subjective exposition (see the judgment from paragraph 38), instead of assessing the issue from the required objective perspective of the reasonable lay observer at the time of the relevant event/s (those being the pretrial applications, the trial, and the post‑trial 'discovery' of the prior relationship); and,
3.The further consequential legal error (see paragraph 44 of the judgment) being to deny any legal significance to the failure of [Mr Rayney's] counsel and/or herself to disclose that prior relationship, when that failure goes to the essence of the concerns in the minds of the reasonable lay observer.
Those legal errors became manifest in the following errors of factual assessment:
4.The failure to consider the significance to a reasonable lay observer of the facts of her prior, long standing, close professional relationship with [Mr Rayney's] advocate and how those facts were readily distinguishable from, for example, colleagues in barrister's chambers, or the occasional contact flowing from the occasional brief; and,
5.The failure to ascribe any significance from the reasonable lay observer standpoint to the fact of the non-disclosure of that relationship by either [Mr Rayney's] counsel or her Honour when there were repeated opportunities for her or [Mr Rayney's] counsel to do so.
There is considerable overlap between the five grounds of appeal. And, while not intending any disrespect, the grounds lack legal precision in their attempted identification of alleged error (albeit that, helpfully, the grounds identify the paragraph or paragraphs of the primary reasons where the alleged error is said to be found). It is, in our opinion, appropriate - given Dr Reynolds' status as a self‑represented litigant - that we restate the grounds of appeal using a more conventional legal framework for the identification of appellable error.
Grounds 1 and 2 allege misapplication of the 'fair-minded lay observer' test established by High Court authorities such as Ebner v Official Trustee in Bankruptcy.[12] Dr Reynolds contends, in effect, that the primary judge erred in law by considering the question of reasonable apprehension of bias from a subjective perspective rather than approaching the question from the objective perspective of a fair‑minded lay observer.
[12] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337.
Ground 2 further alleges that the primary judge erred in law by adopting hindsight reasoning (ie an 'after the event' exposition) when the question of reasonable apprehension of bias should have been considered from an objective perspective at the time of the relevant events.
Grounds 3 and 5 concern the non-disclosure of the previous working relationship. Dr Reynolds contends, in effect, that the primary judge erred in law and in fact in finding that the failure to disclose the previous working relationship was of no legal consequence. This ground, if upheld, feeds into ground 4.
Ground 4, as it is expressed by Dr Reynolds, is plainly misconceived. The primary judge did consider and come to a conclusion as to whether, by reason of the previous working relationship, a fair-minded lay observer might reasonably apprehend that her Honour might not bring an impartial mind to the determination of the case. There was no 'failure to consider' in terms of ground 4. Rather, properly understood having regard to Dr Reynolds' written and oral submissions, ground 4 in substances alleges that the primary judge erred in law and in fact in not recusing herself because, contrary to the primary judge's determination, a fair-minded lay observer might reasonably apprehend that her Honour might not bring an impartial mind to the determination of the case by reason of the previous working relationship between her Honour and Mr Bennett.
The appeal turns on ground 4 as so re-stated. However, we will, for completeness, also deal with the other grounds raised by Dr Reynolds. Before addressing the grounds it is necessary to say something about the applicable legal principles.

Applicable legal principles: reasonable apprehension of bias

The general principles applying to whether a judge should recuse himself or herself on the ground of reasonable apprehension of bias are well-established:
1.The neutrality of a judge is fundamental to the administration of justice[13] - independence and impartiality are essential to the maintenance of public confidence in the judicial system.[14]
[13] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [12]; Ebner v Official Trustee in Bankruptcy [3], [6] - [7]; British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 [139]; Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [32]; Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 [23]; Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289 [11]; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419 (QYFM) [219].
[14] Charisteas v Charisteas [21]; QYFM [45], [273].
2.The test for the disqualification of a judge on the ground of apprehended bias is whether or not 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.[15]
[15] Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, 293 - 294; Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 67 - 68; Johnson v Johnson [11] - [12]; Ebner v Official Trustee in Bankruptcy [6], [9]; Michael Wilson & Partners Ltd v Nicholls [31]; Isbester v Knox City Council [12], [21] - [22], [47], [57], [59]; CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 [17] - [18]; Charisteas v Charisteas [11]; QYFM [17], [67], [119], [221], [274].
3.Apprehended bias is concerned with whether there is a reasonable apprehension that the judge might not decide the case impartially or without prejudice and not with whether the judge might decide the case adversely to one party.[16]
[16] Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352; Re Polites; Ex parte The Hoyts Corporation Pty Ltd [1991] HCA 25; (1991) 173 CLR 78, 86.
4.The test for apprehended bias is objective.[17]
[17] Webb v The Queen (68); Johnson v Johnson [12]; Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982 [28] - [29]; Michael Wilson & Partners Ltd v Nicholls [32] - [33], [67]; QYFM [68], [282].
5.The test for apprehended bias is a test of possibility as distinct from probability.[18] The possibility must be real and not remote.[19]
[18] Re Refugee Review Tribunal; Ex parte H [28] - [29]; Ebner v Official Trustee in Bankruptcy [7]; QYFM [37], [69].
[19] Ebner v Official Trustee in Bankruptcy [7]; QYFM [37], [299].
6.The determination of whether a fair-minded lay observer might reasonably apprehend that the judge might not act impartially and without prejudice largely raises a factual issue - one which must be considered in the legal, statutory and factual contexts in which the judge is required to make the decision.[20]
[20] Isbester v Knox City Council [20].
7.The hypothetical fair-minded lay observer is not taken to have a detailed knowledge of the law;[21] but, even so, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.[22]
[21] Webb v The Queen (73).
[22] Johnson v Johnson [13]; Charisteas v Charisteas [12].
8.The hypothetical observer is reasonable, not unduly suspicious and is fair-minded and informed.[23] The hypothetical observer is attributed with a broad knowledge of the material objective facts.[24] The hypothetical observer is presumed:[25]
(a)to be reasonable and not to make snap judgments;[26]
(b)to know that the judge is required, by his or her training, tradition and oath or affirmation, to discard the irrelevant, the immaterial and the prejudicial;[27] and
(c)to be aware of the nature of the decision which the judge is required to make, what is involved in making the decision and all the objective circumstances of the case.[28]
9.However, the hypothetical observer is aware of the reality that the judge is human and is cognisant of human frailty. The hypothetical observer understands that 'information [as well as attitudes] consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-making'.[29]
10.The hypothetical observer is not so abstracted and dispassionate as to be insensitive to the impression that the circumstances in issue might reasonably create in the mind of the actual party who is asserting an apprehension of bias.[30]
11.The hypothetical observer is not conceived of as a lawyer; but, rather, as a member of the public served by the courts. Accordingly, the hypothetical observer is not to be imbued with professional self-appreciation in a manner that aligns the fair‑minded lay observer with the judiciary and the legal profession.[31] It is the court's view of the public's view, not the court's own view, which is determinative.[32] In this respect the hypothetical fair-minded lay observer is a deliberate and necessary construct which tethers the court's analysis to the ultimate purpose of maintaining public confidence in the impartiality of the judicial system.[33]
12.A judicial officer should avoid any tendency to be over-ready to disqualify himself or herself from presiding over an appointed hearing.[34] The case for disqualification must be 'firmly established'[35] and a finding of apprehended bias is 'not to be reached lightly'.[36] A judge should not disqualify himself or herself on the basis of a reasonable apprehension of bias unless 'substantial grounds' are established.[37]
[23] Webb v The Queen (52), (57); Johnson v Johnson [12], [53].
[24] Webb v The Queen (73).
[25] Livesey v The New South Wales Bar Association (293 - 294); Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, 87 - 88; Re JRL; Ex parte CJL (371 - 372); Webb v The Queen (67 ‑ 68); Johnson v Johnson [12] - [14]; Isbester v Knox City Council [23].
[26] Johnson v Johnson [14].
[27] Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568, 584 - 585; Johnson v Johnson [12].
[28] Isbester v Knox City Council [23].
[29] QYFM [47]. See also [70], [255], [297].
[30] QYFM [49], [255].
[31] Charisteas v Charisteas [21]. See also QYFM [71], [172], [250], [255].
[32] Webb v R (52); QYFM [45], [71], [119].
[33] QYFM [45].
[34] Re JRL; Ex parte CJL (352); Antoun v The Queen [2006] HCA 2; (2006) 80 ALJR 497 [34].
[35] Re JRL; Ex parte CJL (360), (371).
[36] Re JRL; Ex parte CJL (371).
[37] Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 [36].

The test for disqualification on the ground of apprehended bias is sometimes referred to as the 'double might' test.[38] That description emphasises that the test is not demanding and reflects the importance that justice not only be done but also manifestly be seen to be done.[39]
[38] QYFM [37].
[39] Rayney v Legal Profession Complaints Committee [2018] WASCA 73 [2]. See also Ebner v Official Trustee in Bankruptcy [6]; QYFM [68], [120], [175].
Equally, however, it is the responsibility of a judge to sit and hear a case assigned to that judge. Judges do not select their cases and parties cannot select their judges. In Western Australia v Watson[40] the Full Court of the Supreme Court of Western Australia referred to what was said by Mason J (as his Honour then was) in this regard in Re JRL; Ex parte CJL:
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.
[40] Western Australia v Watson [1990] WAR 248, 264.
In Western Australia v Watson the Full Court observed that this passage made it clear that the duty of a judge to disqualify himself or herself for proper reasons is matched by an equally significant duty to hear any case for which there is no proper reason to disqualify himself or herself.[41]
[41] Western Australia v Watson (264).
In Ebner v Official Trustee in Bankruptcy the plurality (Gleeson CJ, McHugh, Gummow & Hayne JJ) identified that the application of the apprehension of bias test involves two steps. First, it requires an identification of what might lead the judicial officer to decide a case other than on its legal and factual merits. Second, there must be a 'logical connection' established between that matter and the 'feared deviation from the course of deciding the case on its merits'.[42] Their Honours said that:
The bare assertion that a judge … 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.[43]
[42] Ebner v Official Trustee in Bankruptcy [8], [72]. See also: CNY17 v Minister for Immigration and Border Protection [21], [57]; Charisteas v Charisteas [11]; QYFM [38], [67], [162], [194], [225], [293].
[43] Ebner v Official Trustee in Bankruptcy [8].
The last sentence in that passage suggests that there is an additional third step. In Isbester v Knox City Council Gaegler J set out those three steps as follows:
Step one is identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as the result of a neutral evaluation of the merits. Step two is articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits. Step three is consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way.[44]
[44] Isbester v Knox City Council [59]. To similar effect see QYFM [38].
The assessment of the reasonableness of the apprehension is considered from the perspective of the fair-minded lay observer.[45]
[45] QYFM [38], [273].
In Webb v The Queen Deane J identified four main categories of case leading to disqualification by reason of reasonable apprehension of bias:[46]
1.Interest - where the decision-maker has some direct or indirect interest in the proceedings (pecuniary or otherwise).
2.Conduct - either in the course of, or outside of, the proceedings.
3.Association - where the decision-maker has some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings.
4.Extraneous information.
[46] Webb v The Queen (74).
The categories are sometimes overlapping. For example, the third category (association) may overlap the first category (interest) or the fourth category (extraneous information). The categories have been regarded as providing a convenient frame of reference.[47] So understood they are often useful as a logical tool in the application of the governing principles.
[47] Ebner v Official Trustee in Bankruptcy [24].
The present case is one of prior association. Association between a judge and a person or persons interested in, or otherwise involved in, the proceedings can occur in a number of ways. In the present case the association is between the trial judge and the legal representative of one of the parties.
There are a number of authorities that have considered association between a judge and the legal representative of one of the parties.[48] Nothing of value is gained by reviewing those cases individually. Each provides an illustration of the application of the specific facts of the individual case to the general principles we have previously stated. This kind of association may take many forms. The relationship between judge and legal representative might be familial, social, professional or commercial. Other kinds of relationship may be possible. The cases do not establish any universal rule that a particular relationship is necessarily a ground for disqualification.[49] At all times it remains necessary to evaluate the 'nature, duration, intensity and proximity' of the relationship.[50]
[48] See eg Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530; In the Marriage of Kennedy and Cahill (1995) 19 Fam LR 173; Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 65 FCR 215; Emanuele v Emanuel Investments Pty Ltd (in liq) (1997) 139 FLR 36; Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128; Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43; Charisteas v Charisteas; Finch v Heat Group Pty Ltd [2022] FedCFamC2G 848.
[49] One exception, not found in the authorities mentioned in fn 48, is the accepted judicial practice mentioned in Guide to Judicial Conduct - Third Edition (Revised) (October 2022) [3.3.4]. Most judges 'would and should' disqualify themselves if in a relationship of the 'first or second degree' to the counsel or the solicitor having the actual conduct of the case. A relationship of 'first degree' is one of 'parent, child, sibling, spouse or domestic partner'. A relationship of 'second degree' is one of 'grandparent, grandchild, 'in-laws' of the first degree, aunts, uncles, nephews, nieces'.
[50] S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358, 372 - 373.
It is, however, appropriate that we say something about the High Court decision of Charisteas v Charisteas. Dr Reynolds relied heavily on Charisteas. In written submissions Dr Reynolds contended that Charisteas had 'parallel facts' to the present appeal - but said that the logical connection in the present case was 'stronger' than in Charisteas and that the case for recusal was 'more powerful'.
Charisteas concerned a claim of apprehended bias arising from interactions between a trial judge and counsel for one of the parties. The interactions occurred while the judge was seized of the matter and after the decision in the matter was reserved. The barrister met with the judge for a drink or coffee on approximately four occasions, had spoken with the judge by telephone on five occasions and had exchanged text messages with the judge. The communications occurred without the knowledge or consent of the other party. The barrister said that the communications with the trial judge did not concern 'the substance' of the case. The High Court held that a fair‑minded lay observer would reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of the questions the judge was required to decide.
Dr Reynolds drew this court's attention to the following passages of the High Court's reasons in Charisteas:
In this matter, what is said might have led the trial judge to decide the case other than on its legal and factual merits was identified. It comprised the various communications between the trial judge and the wife's barrister 'otherwise than in the presence of or with the previous knowledge and consent of' the other parties to the litigation. Indeed, given the timing and frequency of the communications between the trial judge and the wife's barrister, it cannot be imagined that the other parties to the litigation would have given informed consent to the communications even if consent had been sought, and it was not. The communications should not have taken place. There were no exceptional circumstances.
A fair-minded lay observer, understanding that ordinary and most basic of judicial practice, would reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of the questions his Honour was required to decide. The trial judge's impartiality might have been compromised by something said in the course of the communications with the wife’s barrister, or by some aspect of the personal relationship exemplified by the communications. Accordingly, there is a logical and direct connection between the communications and the feared departure from the trial judge deciding the case on its merits.[51] (emphasis added)
[51] Charisteas v Charisteas [14] - [15].
Charisteas is a case of association between judge and counsel. But, contrary to Dr Reynold's submission, the facts in Charisteas are far removed from the present appeal. Charisteas concerned an ongoing association between judge and counsel. The present appeal is a case of past association. Before the trial there had been no professional or social relationship between the primary judge and Mr Bennett for 15 years. Moreover, in Charisteas the communications continued while the judge was seized of the matter and after judgment was reserved. That was inconsistent with the 'ordinary and most basic' judicial practice that, other than in the most exceptional circumstances, once a trial has commenced there should be no private communications between the judge and counsel for one of the parties without the knowledge and consent of the other parties. In the circumstances there was a logical connection between the communications and the possibility of departure from impartial decision-making. In the present appeal, by contrast, there were no private communications between the primary judge and Mr Bennett.
Dr Reynolds sought to emphasise the non-disclosure of the relationship between the trial judge and counsel in Charisteas - in that respect seeking again to draw a parallel between Charisteas and the present appeal.
More will need to be said about the significance of non-disclosure when dealing with grounds 3 and 5. However, in the context of this discussion of Charisteas, it may be seen from the passage reproduced at [41] above that the non-disclosure was not the factor identified for the purpose of the first step in applying the Ebner test. In identifying what might lead the trial judge to decide the case other than on its legal and factual merits the High Court referred to the communications between the judge and the wife's barrister. We acknowledge that the High Court went on to state that the lack of disclosure in the case was 'particularly troubling'.[52] But that was because it might have given the hypothetical observer reason to doubt the correctness of the claim that the communications did not concern the substance of the case. The non-disclosure was not itself identified as being something that might have caused the issues for determination to be resolved otherwise than as the result of a neutral evaluation of the merits.
[52] Charisteas v Charisteas [19].

Disposition

Grounds 1 and 2: The primary judge's approach to the Ebner test

In supporting grounds 1 and 2, Dr Reynolds referred, in general terms, to the previous working relationship. He characterised it as a professionally formative, long-standing relationship in which, for much of the period, Mr Bennett was the primary judge's superior. Dr Reynolds said that the length of the relationship and her Honour's promotion to partner suggested a 'like mindedness' between her Honour and Mr Bennett. However, neither the primary judge nor Mr Bennett disclosed the relationship. That meant that forensic decisions taken by Dr Reynolds and his counsel were made on an incorrect premise, namely, that there was no prior relationship between the primary judge and Mr Bennett.
Dr Reynolds contended that nothing in the primary judge's reasons addressed these matters from the perspective of the fair-minded lay observer.[53]
[53] Dr Reynolds actually referred to 'the reasonable lay observer perspective'. We have, however, here - and elsewhere - reformulated Dr Reynolds' language to more faithfully reflect the conventional legal language employed when considering a claim of reasonable apprehension of bias.
To similar effect, Dr Reynolds asserted that the primary judge approached the question of apprehended bias from 'the lens of judicial retrospection'. He submitted, by way of example, that in dealing with one of the case management matters (ie the late affidavit) the primary judge had applied tests of appropriate conduct as might be expected of a competent legal practitioner rather than a self-represented litigant. From that Dr Reynolds extrapolated that her Honour was applying expectations obtained by herself as a lawyer (in part acquired as an employee and partner of Mr Bennett) rather than those of a fair-minded lay observer.
There is no merit in grounds 1 and 2.
The primary judge stated the applicable legal principles in conventional terms. Her Honour expressly referred to the criterion of a 'fair-minded lay observer'[54] (dealing, among other things, with a submission by Dr Reynolds that he was a fair-minded lay observer).[55] In so doing her Honour identified relevant characteristics of the fair‑minded lay observer.[56] Her Honour's eventual conclusion was expressed, correctly, in terms of whether the previous working relationship might give rise to a reasonable apprehension to a fair‑minded lay observer that she might not decide the case on its merits.[57]
[54] Primary reasons [18] - [19].
[55] Primary reasons [13](d).
[56] Primary reasons [19].
[57] Primary reasons [47].
On a fair reading of the primary reasons as a whole it is readily apparent that her Honour approached the question of reasonable apprehension of bias from the objective perspective of the fair-minded lay observer.
In his written submissions (although not in his grounds) Dr Reynolds took issue with the primary judge's treatment of some of the case management matters. How, precisely, these matters established apprehended bias based on the previous working relationship went largely unexplained. The thrust of Dr Reynolds' submissions - to be examined shortly in connection with grounds 3 and 5 - was that the non-disclosure of the prior working relationship caused Dr Reynolds forensic disadvantage in relation to these matters. Another, less substantial, thread of possible relevance to grounds 1 and 2 was an implicit suggestion that the primary judge offered an after the event rationalisation for these matters which could not and would not satisfy a fair-minded lay observer (this demonstrating the primary judge's alleged error in approaching the question from a subjective perspective).
We accept that the primary judge referred to what occurred at the time of the case management matters. But this does not mean that her Honour erred by the adoption of hindsight reasoning. In evaluating the events that were complained of in Dr Reynolds' affidavit and Mr Selby's affidavit the primary judge necessarily had to evaluate the matters in the context of what was happening at that time. There was no after the event subjective exposition.
More significantly, the argument overlooks the circumstance that the primary factor that Dr Reynolds relied on for the claim of reasonably apprehended bias was the previous working relationship and its non-disclosure. The critical issue was what the fair-minded lay observer would make of those matters rather than the case management matters and the 'concerning actions' of Mr Bennett during trial. It is possible that the other matters might, if established, inform the ultimate question of reasonable apprehension of bias. They were potentially relevant in that secondary sense. But before the primary judge - and, indeed, on the appeal - Dr Reynolds primarily invoked these matters as adverse consequences that arose from the non-disclosure of the previous working relationship. There either were or were not such adverse consequences. That was a matter for the primary judge to determine as a question of fact. Her Honour did so finding that the non-disclosure of the previous working relationship did not deprive Dr Reynolds of any opportunity to advance arguments or submissions at trial.[58]
[58] Primary reasons [44].
In the context of making factual findings about the alleged adverse consequences of the non-disclosure it was not necessary for the primary judge to determine whether a fair-minded lay observer would have considered that there were adverse consequences of the kind claimed by Dr Reynolds and Mr Selby. The fair-minded lay observer criteria, and the 'double might' test, apply to the question of reasonable apprehension of bias rather than intermediate factual findings of the kind presently in issue. Nevertheless, her Honour also considered whether the case management matters and the so-called 'concerning actions' were capable of giving rise to a reasonable apprehension of bias. In concluding that they did not there is no basis to infer that the primary judge adopted a perspective other than that of the fair-minded lay observer. Her Honour's exposition of the applicable legal principles belies any conclusion to the contrary.
Grounds 1 and 2 fail.

Grounds 3 and 5: The non-disclosure of the previous working relationship

Dr Reynolds contended that the non-disclosure of the previous working relationship went to the essence of the concerns that would have arisen in the mind of the fair-minded lay observer. The contention was developed in two distinct ways.
First, Dr Reynolds said that the non-disclosure 'heightens' the apprehension. There is support for that submission in Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd. There Merkel J stated that a failure to disclose may leave an impression that something was 'wrong about it all'.[59] His Honour went on to state:
A failure to disclose no matter how unwitting, can undermine public confidence in the integrity of, and the administration of justice by, the judicial officer or the tribunal concerned.[60]
[59] Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (221).
[60] Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (221).
Second, Dr Reynolds complained that the non-disclosure caused him and his counsel, Mr Selby, to make forensic decisions that would not have been made had the prior working relationship been disclosed. Dr Reynolds asserted that decisions made about the case management matters and the 'concerning actions' of Mr Bennett during trial were taken on the incorrect premise that there was no prior relationship between the primary judge and Mr Rayney's counsel. In this respect, according to Dr Reynolds, the proper running of the case was compromised and he was exposed to forensic disadvantage. Correspondingly, Mr Rayney, via the prior association between Mr Bennett and the primary judge, obtained a forensic advantage.
Dr Reynolds also submitted that it was telling that no affidavit evidence from Mr Bennett was adduced in relation to the recusal application. He asked the court to draw an inference that Mr Bennett did not provide evidence because it would not have assisted Mr Rayney's opposition to the recusal application. We would not draw that inference. The circumstances of the prior association were uncontentious and in the public domain. There was no suggestion that the prior association had been disclosed to Dr Reynolds. So too it was common ground that there had been no professional or social relationship between Mr Bennett and the primary judge for the 15 years that had elapsed between the primary judge leaving the Bennett & Co partnership and the trial of the defamation action. There was, in the circumstances, nothing of substance that Mr Bennett could say in evidence by way of amplification or clarification. There was no need for Mr Bennett to provide an affidavit to verify what was already apparent to the parties and the court.

It is convenient to deal with Dr Reynolds' remaining two arguments in support of grounds 3 and 5 in reverse order.
Dr Reynolds' complaint of forensic disadvantage is misdirected. The doctrine of reasonable apprehension of bias rests on the fundamental proposition that a court should be and should appear to be independent and impartial. It is not concerned with avoidance of actual or perceived forensic advantage or disadvantage as between litigants. If it was otherwise difficulties would arise in the due administration of justice.
Take, for example, two litigants, each represented by experienced and competent counsel, but only one of whom has appeared before the relevant judge at a trial. It might be that, because the counsel who has appeared before the judge on a previous occasion is more experienced in the judge's expectations and approach to decision-making, that he or she is at a comparative advantage to the other counsel. Any such actual or potential forensic advantage or disadvantage is not the concern of the doctrine of reasonable apprehension of bias. Rather, the concern addressed by the doctrine of reasonable apprehension of bias is twofold: the relationship of the decision-maker to the parties and external influences (ie independence) and what goes on, or appears to go on, in the mind of the decision-maker (ie impartiality). In the latter respect, the circumstance that a fair-minded lay observer might reasonably apprehend that a decision-maker might not bring an impartial mind to the issues he or she has to determine is sufficient to compel recusal. It matters not whether one litigant enjoys an actual or potential forensic advantage or disadvantage.
Accordingly, Dr Reynolds' complaints of forensic disadvantage are an unnecessary distraction. They are not to the point so far as Dr Reynolds contends that, by reason of the previous working relationship and the non-disclosure thereof, there was a reasonable apprehension of bias.
In any event, the primary judge held - as a matter of fact - that the non-disclosure of the previous working relationship did not deprive Dr Reynolds of any opportunity to advance arguments or submissions at trial. While, by ground 3, Dr Reynolds alleges legal error in concluding that the non-disclosure was of no legal consequence, that factual finding made by the primary judge is unchallenged on appeal. The unchallenged factual finding stands in the way of and means that this court cannot accept Dr Reynold's contention that the non-disclosure has compromised the conduct of the primary proceedings and resulted in him suffering a forensic disadvantage.
As to Dr Reynolds' first point - ie that the non-disclosure reinforces the apprehension that might be experienced by a fair-minded lay observer - it is necessary to recall what was said on the subject of disclosure by the plurality (Gleeson CJ, McHugh, Gummow & Hayne JJ) in Ebner v Official Trustee in Bankruptcy:
It is necessary to distinguish between considerations of prudence and requirements of law.
As a matter of prudence and professional practice, judges should disclose interests and associations if there is a serious possibility that they are potentially disqualifying …
It is, however, neither useful nor necessary to describe this practice in terms of rights and duties. At most, any 'duty' to disclose would be a duty of imperfect obligation. A failure to disclose is relevant (if at all) only because it may be said to cast some evidentiary light on the ultimate question of reasonable apprehension of bias. A failure to disclose has no other legal significance. In particular it does not, of itself, give a litigant any right to have the judge desist from further hearing the matter or to have the ultimate decision in the matter set aside for want of procedural fairness.[61] (emphasis added) (citations omitted)
[61] Ebner v Official Trustee in Bankruptcy [68] - [70].
The fundamental question to be answered is whether the reasonable apprehension of bias test is established; it is not whether the practice of making disclosure is a matter of right or duty.[62]
[62] Ebner v Official Trustee in Bankruptcy [71].
There may be cases where non-disclosure might reasonably support an inference of want of impartiality. The italicised portion of the passage reproduced at [65] above confirms as much. Their Honours referred to Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd as authority for that proposition (see [57] above). However, such an inference - and the evidentiary impact of non-disclosure on the application of the Ebner test - can only arise where there is a 'serious possibility' that the relevant interest or association is potentially disqualifying. For it is only where there is a serious possibility that an interest or association is potentially disqualifying that prudence and professional practice dictates disclosure. No consequence ought attach to the non-disclosure of a fact or issue that could not possibly support a claim of reasonable apprehension of bias.
The primary judge was evidently aware of these principles. Her Honour referred to the relevant parts of Ebner.[63] Her Honour went on to conclude, in effect, that there were no grounds, let alone any substantial grounds, on which the previous working relationship might satisfy the test for reasonable apprehension of bias.[64] It followed, necessarily, that the failure to disclose the previous working relationship was of no legal consequence. In so holding there was no error in approach by the primary judge.
[63] Primary reasons [29].
[64] Primary reasons [47].
Grounds 3 and 5 can only succeed if, contrary to the primary judge's conclusion, there was a serious possibility that the previous working relationship was potentially disqualifying. This is a question best evaluated after full consideration of the merits of the application for recusal based on the previous working relationship. To that end we turn immediately to ground 4 as re-stated.

Ground 4: Was there a reasonable apprehension of bias such that the primary judge should have recused herself?

In Dr Reynolds' written submissions on the appeal he addressed the two-step test in Ebner by identifying the previous working relationship as being the relevant factor that might lead the primary judge to decide the case other than on its legal and factual merits. However, as to the 'logical connection' between that factor and the feared deviation, Dr Reynolds referred to 'the failure to disclose AND the consequences of that failure' (original emphasis). It is apparent that by 'the consequences' Dr Reynolds meant the forensic decisions he and Mr Selby took in respect of the case management matters and 'concerning actions' of Mr Bennett during trial. Dr Reynolds said that this 'logical connection' was not properly addressed by the primary judge in her Honour's reasons.
So stated Dr Reynolds' argument miscomprehends the gravamen of the Ebner test.
The 'logical connection' for articulation in accordance with the second step of the Ebner test is the contended for nexus between the relevant factor (here the previous working relationship) and the feared deviation from the course of deciding the case on its merits. Non‑disclosure of the relevant factor does not provide the logical connection. As has been explained, non-disclosure may inform the reasonableness of the apprehension that deviation from a neutral evaluation of the merits of a case might be caused by the factor in the way posited by the logical connection. But it remains necessary to articulate how the identified factor might cause a deviation from the neutral evaluation of the merits.
Nor, all the more so, could the suggested adverse consequences of the non-disclosure supply the logical connection. For reasons we have already explained the reasonable apprehension of bias test is not concerned with whether, by reason of a factor which it is said might lead a judge to decide a case other than on its legal and factual merits, a litigant might suffer an actual or potential forensic disadvantage vis‑à‑vis his or her opponent.
The primary judge observed, twice, that Dr Reynolds did not articulate an alleged logical connection as required by the second step of the Ebner test.[65] While, on appeal, Dr Reynolds has condescended to particulars and advanced a suggested connection between the previous working relationship and the feared deviation from the course of deciding the defamation case on its merits, the suggested connection is misconceived.
[65] Primary reasons [32], [46].
In written and oral submissions Dr Reynolds referred to other things which might supply the otherwise missing 'logical connection'. In summary, Dr Reynolds contended that:
1.The duration of the relationship between the primary judge and Mr Bennett dictated an element of subtle but embedded 'like mindedness'.
2.The relationship was more closely aligned to professional issues than emotional ties.
3.The relationship was one of mentor/mentee coupled with law firm management activities - it was a significant 'career establishing' relationship.
4.The duration of the relationship was such that a strong bond must have developed between the primary judge and Mr Bennett. There would have been a personal and professional relationship. Mr Bennett would have been a mentor, supervisor and role model. Especially in the formative stages of the primary judge's legal career, Mr Bennett would have been a 'font of knowledge' for her Honour.
5.For some 11 years the primary judge had learned from Mr Bennett - she must have been impressed by Mr Bennett's legal thinking and mind.
In summary, while Dr Reynolds did not expressly articulate an alternate logical connection in these terms, he essentially posited that there was a key personal and professional relationship between the primary judge and Mr Bennett - one that was formative to her Honour's legal career and likely to have been instructive in her Honour's legal training and development.
The implicit premise of Dr Reynolds' submissions was that the relationship was so profound, foundational and integral to the primary judge's development as a lawyer and a judge that it might reasonably be perceived by a fair-minded lay observer to have a capacity to influence, consciously or unconsciously, how the primary judge might view evidence elicited by or submissions made by Mr Bennett on behalf of a client. In other words, that there might be a situation of favour. In that manner, the relationship might reasonably be perceived by a fair‑minded lay observer to have the capacity to influence how the primary judge might approach the resolution of the defamation action.
It should at once be acknowledged that, while we have tried to encapsulate an alternate 'logical connection' that may be gleaned from Dr Reynolds' written and oral submissions, the evidentiary foundation for the alternate logical connection is so thin as to be non-existent.
So too the decided cases as to alleged reasonable apprehension of bias due to association between judge and counsel are against acceptance of an alternate case of this kind.
Judges will often know the counsel and solicitors who appear before them - a matter which the fair-minded lay observer is taken to be aware of given that judges are appointed from the senior ranks of the legal profession.[66] In that respect it has been regarded as inevitable that, within a court, some judges will have personal or professional associations with the counsel who appear in the court. That, without more, has not been regarded as sufficient to give rise to a reasonable apprehension of bias. A fair-minded lay observer with an appreciation of the legal system and ordinary judicial practice would recognise the ability to put aside such associations while discharging public responsibilities - this being a capacity generally expected of judges and counsel.[67]
[66] Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272, 276. See also Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (230).
[67] Emanuele v Emanuel Investments Pty Ltd (in liq) (51) (while Williams J confined his observations to 'senior counsel' rather than counsel generally, we consider that the observations apply equally to counsel including, in a fused profession such as exists in Western Australia, counsel practising in the amalgam). See also: Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (230 - 232); Emanuele v Emanuel Investments Pty Ltd (in liq) (45 - 48).
The decided cases examine the relationship between judge and counsel at a time when most judges were drawn from the independent bar. In today's context - particularly with a fused profession such as exists in Western Australia - there is greater diversity in judicial appointments. An increased proportion of judges are appointed from outside of the independent bar. This does not affect the continuing validity of what we have recorded in the preceding paragraph. A judge is a judge. All judges subscribe to the same judicial oath or affirmation. The fair-minded lay observer does not differentiate between judges based on their background in the legal profession. The fair-minded lay observer expects that all judges will disregard the irrelevant, the immaterial and the prejudicial.
The alleged differentiating factor relied on by Dr Reynolds in the present appeal is the nature, duration and intensity of the previous working relationship between the primary judge and Mr Bennett.
The primary judge was for a time employed by Mr Bennett (from 1994 to 2001). Her Honour was then in partnership with Mr Bennett (from 2001 to 2005). It may readily be inferred that, at this time, there was a significant personal and professional relationship between the primary judge and Mr Bennett. The relationship was for a significant duration. It self-evidently occurred at a formative stage of her Honour's legal career. We are prepared to accept without deciding, favourably to Dr Reynolds for the purpose of the appeal, that the relationship is likely to have been instructive in her Honour's legal training and development.
Critically, however, the previous working relationship terminated in 2005 - some 15 years before the trial of the defamation action. There was, in the circumstances, a marked absence of proximity between the relationship and the trial of the defamation action. In the ensuing period there was no professional or social relationship between Mr Bennett and the primary judge. Her Honour pursued a legal career at other law firms and was appointed as a judge of the Supreme Court on 4 June 2019.
This is not a case where Mr Bennett was a party to the proceedings. Nor was the primary judge to be called on to evaluate Mr Bennett's credibility or reliability as a witness. Mr Bennett was appearing as counsel for Mr Rayney. The fair-minded lay observer is taken to be aware that when counsel acts on a client's behalf he or she does so in a professional capacity as the client's legal advocate - counsel presents the client's case and in doing so is bound by professional standards and ethics.[68]
[68] Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (230).
In these respects the position and role of counsel is qualitatively different to that of other persons interested or involved in curial proceedings. To so state is not, impermissibly, to imbue the fair‑minded lay observer with professional self-appreciation as if the hypothetical observer was a member of the judiciary or the legal profession. We acknowledge that the fair-minded lay observer is a member of the public served by the courts. But the fair-minded lay observer is a construct that is applied to the real world of actual litigation. In the real world of actual litigation the function performed by counsel - and the differences between their position and role and that of others interested or involved in proceedings before the court - would be obvious to a reasonable and informed member of the public.
In all the circumstances it is not the case that a fair-minded lay observer might reasonably apprehend that the primary judge might not bring an impartial and unprejudiced mind to the determination of the defamation action. The logical connection between the subject matter of the apprehension (the previous working relationship between the primary judge and Mr Bennett) and the deviation from the course of deciding the case on its merits lay in the possibility that her Honour might treat evidence elicited by or submissions made by Mr Bennett with favour. We do not accept that a fair-minded lay observer might reasonably apprehend that the prior association might affect the primary judge's determination of the defamation case on its merits in that manner.
Three things, viewed objectively from the perspective of the fair‑minded lay observer, are decisive in reaching this conclusion. First, there was no continuing association between the primary judge and Mr Bennett. The previous working relationship was historic in nature. The absence of any continuing significance of the previous working relationship was manifest from the circumstance that there had been no professional or social relationship between Mr Bennett and the primary judge for 15 years. Second, Mr Bennett's role was confined to that of counsel. Judges are of course commonly assisted by counsel. But judges are expected to, and do, carefully scrutinise and form their own views on the case before them. Anything less would be an abrogation of the judicial oath or affirmation and the judicial function. Third, any residual concern as to the possibility that the previous working relationship might deflect the primary judge from a neutral evaluation of the merits of the case may be put aside when it is recalled that, with a professional judge, his or her training, tradition and oath or affirmation require that he or she disregard the irrelevant, the immaterial and the prejudicial. Any view that the primary judge held about Mr Bennett was plainly irrelevant and immaterial to the determination of the defamation action.
Finally, given that they were a matter of considerable concern to Dr Reynolds, mention should be made of the case management matters and the complained of 'concerning actions' of Mr Bennett during the trial. Nothing in these incidents, viewed objectively from the perspective of the fair-minded lay observer, bespeaks of the possibility of favour.
The adjournment on 11 December 2019 was no more than to facilitate the orderly hearing of various substantive applications at a special appointment on 16 December 2019. The late affidavits responded to matters raised in submissions filed by Dr Reynolds earlier the same day. It is apparent from the transcript of the hearing that her Honour read and considered the affidavits. So far as the lateness of the affidavits might have prejudiced Dr Reynolds the primary judge provided for a short adjournment of the hearing so that Dr Reynolds could consider the materials. No reasonable apprehension of bias can arise from reception of the late affidavits. That is also the case with the costs order - Dr Reynolds having brought and failed in an interlocutory application it is unremarkable that costs followed the event. The allegation of intimidation was not pursued. No ruling was required. There is nothing from which a fair-minded lay observer might reasonably apprehend that the primary judge might not bring an impartial mind to the determination of the defamation action. If, as Dr Reynolds perceived it, Mr Bennett's oral closing submissions were unnecessarily theatrical and disparaging of him, that is regrettable. Again, however, nothing was said at the time. There was thus no occasion for the primary judge to make any ruling about the alleged theatrics and disparagement.
Ground 4 fails.
The lack of merit in the argument in support of ground 4 is such that it cannot be concluded that there was a serious possibility that the previous working relationship was potentially disqualifying. It follows that grounds 3 and 5 also fail.

Conclusion and orders

Dr Reynolds requires an extension of time to appeal. Due to inadvertent error he lodged his appeal notice a few days late. The error was explained and caused no prejudice. Mr Rayney did not oppose the extension. In all the circumstances there should be an extension of time to appeal.
Leave to appeal is another matter. Leave is required as Dr Reynolds chose to appeal against the dismissal of the recusal application. We are not satisfied that leave to appeal is in the interests of justice. We accept that, if left unreversed, the primary judge's decision would result in substantial injustice if it were wrong. However, for the reasons set out above, the decision is not wrong. Nor, in our opinion, is the decision to dismiss the recusal application attended with sufficient doubt to warrant its reconsideration. To the contrary we are comfortably satisfied that the primary judge was correct to dismiss the recusal application. In the circumstances we would refuse leave to appeal.
Subject to hearing from the parties as to precise terms, we would make orders to the following effect:
1.The time for the appellant to appeal against the orders of the Supreme Court of Western Australia made 21 September 2022 in action CIV/1827/2015 is extended to 13 October 2022.
2.Leave to appeal against the orders of the Supreme Court of Western Australia made 21 September 2022 in action CIV/1827/2015 is refused.
3.The appeal is dismissed.
The parties should be heard on the costs of the appeal. Prima facie, however, costs should follow the event.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MD
Associate to the Honourable Justice Vaughan
6 OCTOBER 2023