Slavin v Owners Corporation Strata Plan 16857

[2006] NSWCA 71

New South Wales

Court of Appeal

CITATION:	Slavin v Owners Corporation Strata Plan 16857 [2006] NSWCA 71
HEARING DATE(S):	21 March 2006
JUDGMENT DATE:	7 April 2006
JUDGMENT OF:	Giles JA at 1; Bryson JA at 43; Basten JA at 47
DECISION:	(1) Grant leave to appeal in relation to disqualification by reasonable apprehension of bias and direct the filing of a notice of appeal within seven days; otherwise refuse leave to appeal; (2) Appeal dismissed; (3) Claimant/appellant pay opponent/respondent's costs.
CATCHWORDS:	Disqualification for apprehended bias - test that fair-minded lay observer might reasonably apprehend the judge might not bring impartial mind to decision - observations which in isolation expressed views on credibility without opportunity for submissions - hypothetical observer is informed, and does not look at matters in isolation - taking into account circumstances in which observations made and totality of what judge said, test not satisfied. D
LEGISLATION CITED:	Strata Schemes Management Act 1996
CASES CITED:	Antoun v The Queen [2006] HCA 2; Carolan v AMF Bowling Pty Ltd (CA, 16 November 1995, unreported); Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337; Re JLR: Ex CJL (1986) 161 CLR 342; Ridis v Strata Plan 10308 [2005] NSWCA 246; Vakauta v Kelly (1989) 167 CLR 568.
PARTIES:	Sara Slavin - Appellant Owners Corporation Strata Plan 16857 - Respondent
FILE NUMBER(S):	CA 40556/05
COUNSEL:	T E F Hughes QC & M B J Lee - Appellant I G Harrrison SC & J Stewart - Respondent
SOLICITORS:	Harris Friedman Hyde Page - Appellant McCulloch & Buggy - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 7792/02
LOWER COURT JUDICIAL OFFICER:	O'Toole DCJ - 31 March 2005

CA 40556/05
DC 7792/02

GILES JA
BRYSON JA
BASTEN JA

Friday 7 April 2006

SLAVIN v OWNERS CORPORATION STRATA PLAN 16857

Judgment

1 GILES JA: The opponent is the owners corporation for the strata scheme for the apartment towers “Kincoppal” at Elizabeth Bay in Sydney. In early 2000 the claimant became registered as proprietor of a lot in the strata scheme. Under the direction of her son, Mr Simon Slavin, the apartment constituting the lot was extensively refurbished, and the claimant and Mr Slavin lived in it from September 2000.

2 In a statement of claim filed in the District Court the claimant alleged that in 2000 and 2001 the apartment was affected by the ingress of water from the roof of the tower in which it was situated, and that the opponent was liable to her in damages for failing to maintain and keep the roof in a state of good and serviceable repair. She claimed that the opponent was liable because it was in breach of a statutory duty arising under s 62(1) of the Strata Schemes Management Act 1996 (“the Act”), alternatively because it was in breach of a duty of care owed at common law. In essence, it was alleged that, although on notice from January 2000 that the membrane of the roof needed to be replaced and repair was otherwise required, the opponent did not attend to the roof until late 2001. The damages in the statement of claim were unquantified. In submissions, damages of $65,010 plus interest were claimed.

3 The proceedings were listed for hearing on an estimate of “1 day plus”. That proved to be erroneous. Evidence was taken before by O’Toole DCJ over two days in February 2004 and a further three days in June 2004, and the proceedings were adjourned for submissions to a date eventually fixed at 31 March 2005. In reasons published on 16 June 2005 the judge held that the opponent had not been in breach of statutory duty or a duty of care, and that if she were wrong in that respect the claimant had not proved damages greater than $2,042.

4 This was an application for leave to appeal from her Honour’s decision, heard on full submissions so that, if leave were granted, a further hearing would not be necessary. Reliance on breach of a duty of care was abandoned. The proposed grounds of appeal raised whether the judge had erred -

(a) in declining an application made on 31 March 2005 that she disqualify herself by reason of a reasonable apprehension of bias;

(b) in failing to hold that s 62(1) of the Act expressed an absolute duty, but rather saying that she was not persuaded that the opponent had been dilatory or careless in maintaining or repairing the roof;

(c) in finding that the opponent had not been dilatory or careless in maintaining or repairing the roof; and

(d) in finding that the damages were no more than $2,042.

5 Upholding the appeal as to a reasonable apprehension of bias would ordinarily result in a new trial on all issues, but the claimant submitted that in that event this Court should itself find liability and the new trial should be limited to the assessment of damages.

Reasonable apprehension of bias

6 If the judge was in error in declining to disqualify herself, the outcome of the trial was fundamentally flawed. The claimed $65,010 is a not insignificant amount, but of more importance the claimant was entitled to have his claim decided without the appearance that justice was not done. For the reasons which follow, in my opinion the judge was not in error, but leave to appeal should be granted as to this matter.

7 The test of reasonable apprehension of bias is not in doubt. It is that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions the judge is required to decide: see Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 at [6] per Gleeson CJ and McHugh, Gummow and Hayne JJ. Their Honours continued -

“The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. 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.”

8 As is made clear in Antoun v The Queen [2006] HCA 2, if the judge exhibits pre-judgment it does not matter that, at the time or in retrospect, the case for that judgment is strong: see at [2] and [23] per Gleeson CJ, [46]-[49] per Kirby J and [83]-[87] per Callinan J with whom Heydon J agreed. But the cases caution against too ready acceptance of disqualification applications, see in particular Re JRL; Ex parte CJL (1986) 161 CLR 342, and recognise that it is permissible, indeed preferable, that the judge express preliminary views to the parties so that they may deal with them. In Vakauta v Kelly (1989) 167 CLR 568 at 571 Brennan, Deane and Gaudron JJ observed that -

“ … a trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated”.

9 The formation of preliminary views is inevitable as a judge attends to the evidence and relates it to the issues for decision, and it is commonly in the interests of the parties and promotes the efficient resolution of their dispute that the views be made known, so that the parties can focus their submissions and respond to those views.

10 In Antoun v The Queen Kirby J said at [27] that in some circumstances strong and forthright remarks, especially where the judge is the sole judge of fact and law and the parties are represented by counsel able to respond with clarity and forthrightness, will not give rise to a reasonable apprehension of bias, and that he “would not want to say anything that needlessly mollycoddled candid judicial speech addressed to trained advocates”. But it is normally necessary to give the parties the opportunity to put their submissions, and there must be manifest observance of fair procedures; thus his Honour said at [29] that -

“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 pre-judgment that has the effect of disqualifying the judge from further conduct of the proceedings. Sometimes, that line will be hard to discern.”

11 See also Hayne J at [53] referring to “a line to be drawn between deciding cases efficiently and economically and appearing to pre-judge what has to be decided”.

12 The claimant expressly eschewed any appearance of pre-judgment in the course of the trial prior to 31 March 2005. She relied on observations of the judge during the submissions of the opponent’s counsel on 31 March 2005. The question for decision is whether, on the test earlier stated, the judge crossed the line.

13 Evidence in the claimant’s case was given by Mr Slavin, by Dr Beale, Mr Petropoulos, Ms Imbree and Mr Azzi who had visited the apartment, and by Messrs Leighton and Argyrou who had performed work in the apartment. Evidence in the opponent’s case was given by Mr Parsons, who had become a member of the executive committee of the opponent in September 2000 and chairman of the opponent in April 2001. Much of the evidence was less than precise. A number of documents were tendered, including minutes of many meetings of the opponent.

14 There was a deal of evidence from Mr Slavin going to the opponent’s knowledge of water penetration to the apartment and its extent, and it was acknowledged in the application that Mr Slavin’s credibility went directly to the opponent’s liability. Mr Slavin gave evidence of particular occasions when he complained of water penetration, including complaints in late 2000 to the managing agent, and said more generally that from late 2000 he “notified the executive committee of the owners corporation that I had water penetration of the apartment” and that “[e]very time I seen anybody I was raising [the question of the leaking roof]”. Mr Slavin’s credibility also went to damages, and the claimant’s case as to quantum substantially required acceptance of his evidence.

15 On 31 March 2005 the claimant was represented by Mr T E F Hughes QC, leading Mr M J B Lee who had represented her while evidence was taken. The opponent continued to be represented by Mr J G Stewart.

16 Mr Stewart addressed first. He handed up a written outline, which included that Mr Slavin was a most unsatisfactory witness and that there had been “florid and extravagant assertions from the witness box as to the frequency and nature of his complaints”. It was said elsewhere in the written outline that the evidence of Mr Parsons and the documentation supported that the opponent had discharged its duty under s 62(1) of the Act.

17 Almost immediately in Mr Stewart’s oral submissions, and it seems before the judge had read the written outline, the transcript records (the judge’s initial reference being to a copy of s 62(1) of the Act attached to the written submissions) -

“HER HONOUR: It is, thank you. Mr Stewart [sic] may persuade me to a different view but I had a careful look at the transcript and the notes that I’d made during the hearing. I think probably the first explicit complaint made by Mr Slavin to Mr Parsons, was in April 2001. I don’t know whether that assists you in the way that you’re going to put your case. And as I say Mr Hughes and Mr Stewart [sic] may persuade me to a different view.
STEWART: Well your Honour may I say this generally about Mr Slavin’s evidence. It’s my respectful submission that on the whole, the evidence is most unreliable.
HER HONOUR: I respectfully agree with you.
STEWART: And your Honour Mr Parson’s [sic] with respect is a witness whose evidence your Honour would prefer over that of Mr Slavin, where there is a conflict.
HER HONOUR: I agree with you respectfully.
STEWART: Thank you your Honour. And may I say with the greatest of respect that it’s my submission that the documentation which I tendered I think sequentially, supports the proposition that even though at some stage there was damage or evidence of damage, which developed in unit 26. It was not to an extent as asserted by Mr Slavin early in the piece as it were and your Honour, that in my respectful submission is a matter to be taken into account in determining whether or not the defendant has complied with s 62(1). … ”

18 There appears to be a transcript error in the first paragraph of this extract, but even if the transcript be correct the judge plainly meant, and would have been understood to have meant, that Mr Hughes might persuade her to a different view.

19 Mr Stewart’s oral submissions continued over the next four pages of the transcript. When he referred to Mr Slavin’s description of the nature and extent of the 2000 renovations, the judge said “I think that’s part of his evidence that one would accept. It’s consistent with everything else.” When he referred to a paragraph in the written submissions asserting that Mr Slavin gave an evasive answer in cross-examination about the appearance of the ceilings in the apartment on an occasion in May 2001, her Honour said “I must say I thought you were at cross-purposes with him”, and explained why she had that view.

20 Shortly thereafter Mr Stewart referred to the paragraph in the written submissions that Mr Slavin was a most unsatisfactory witness, saying that he referred in it “to some aspects … of the evidence of Mr Slavin which in my submission paints him as a most unsatisfactory witness”. The judge said -

“HER HONOUR: I think his uncorroborated evidence is unreliable. As I said before, perhaps I’ll be persuaded to a different view, but that’s the overall impression of his evidence I formed.”

21 The submissions moved on to deal with the evidence of other witnesses in the claimant’s case, the written and oral submissions in combination amounting to the submission that the evidence was unreliable.

22 The transcript continued -

STEWART: … Now Mr Parsons’s [sic] your Honour is --
HER HONOUR: He was in [sic] impressive cogent witness in the face of a virulent attack upon his voracity in probity [sic].
STEWART: Yes, your Honour. He stood his ground. He gave measured evidence, relevant evidence and evidence which in my respectful submission, bespeaks the sorts of decision making process that a responsible member of the committee, such as the committee of which he was a member and later chairman, would undertake in reaching these sorts of decisions with which we’re concerned. Your Honour I set out the evidence of Mr Parsons in essentially the balance of my written submissions. But if one goes to the material which was tendered on behalf of the defendant, it is in my respectful submission, completely supportive of the proposition that the committee acted properly, responsibly and discharged its duties under section 26.1 [sic] during the whole course of this process. And it supports the evidence called by the defendant and where there is a conflict between Mr Slavin and Mr Parsons. It supports the evidence of Mr Parsons. If I can very briefly take your Honour ---
HER HONOUR: It seems to me that Mr Parsons’ deposition and the defendant’s contemporaneous and secondary records are the most reliable source of the relevant facts in this case. If you’re instructed to talk a great deal to me about Mr Parsons’ [sic] of course I’ll listen. But it’s not necessary unless you wish to.
STEWART: No your Honour. May I say this your Honour in concluding my submissions on liability, that I endeavoured when I tendered the documentation which was tendered on behalf of the defendant, to deal with the documentation sequentially. A fair reading of the documentation, in my submission, completely supports Mr Parsons in the case of the defendant. … “

23 At the conclusion of Mr Stewart’s submissions, Mr Hughes submitted that the judge’s initial agreement that on the whole the evidence of Mr Slavin was most unreliable, without her Honour having heard “a syllable of submission” on behalf of the claimant, gave rise to an apprehension of bias, and asked that the judge disqualify herself. The judge replied, “I’ve heard days of evidence Mr Hughes and of course I’ve formed some preliminary views about the evidence”. Mr Hughes responded, “Your Honour didn’t say that you had formed a preliminary view, your Honour said that your Honour respectfully agreed with the proposition that on the whole the evidence [of] Mr Slavin is unreliable”.

24 Mr Hughes elaborated his application, without materially expanding its basis, in the succeeding pages of the transcript. I do not think it necessary to relate this, save to note that there was again an exchange in which the judge said that she had formed preliminary views about the evidence and Mr Hughes responded that she had not qualified her views as preliminary “and that’s the problem, that’s the problem”.

25 In due course the judge gave reasons for declining to disqualify herself. She recounted a history of the proceedings, it seems because Mr Hughes’ submissions had made some mention of it; it is not now a material matter. She said -

“7. Eventually the oral evidence in the OSC [original statement of claim] and the ASC [amended statement of claim] occupied five days of the Court’s proceedings. Naturally I formed general impressions of the respective witnesses’ credibility and reliability whilst I observed their deposing. Subsequently I had the ASC listed for today and tomorrow in order to hear the parties’ final submissions thereon: those dates were the earliest that accommodated one’s then impending commitments to the Court and counsel’s then impending professional commitments.

8. In good time prior to today, the Court’s Recording Services Branch transcribed the great majority of the oral evidence. I read the voluminous transcript and the voluminous documentary evidence carefully in the light of the clear impressions I had formed and that I retain of the respective witnesses’ demeanour and delivery. I have not decided this case. I have no firm view about the way in which this case should be decided.

9. I decline to grant the plaintiff’s ad hoc motion to me [to] disqualify myself from concluding this hearing and from determining the ASC.”

26 The judge’s reasons for declining to disqualify herself were erroneous. On the claimant’s application to her, whether she had not decided the case and had no firm view about the way it should be decided was not the question. The question was whether there was the appearance of prejudgment, see Antoun v The Queen, above.

27 The claimant’s submissions in the application in this Court were founded on the judge’s early agreements with Mr Stewart’s submissions that on the whole Mr Slavin’s evidence was most unreliable and Mr Parsons’ evidence should be preferred where there was conflict, together with her volunteered description of Mr Parsons as an “impressive cogent witness”. In discerning the line to which Kirby J referred in Antoun v The Queen, however, the fair-minded lay observer is an informed observer who takes into account the circumstances in which those observations were made and the totality of what the judge said.

28 The judge’s observations on which the claimant founded her submissions were unqualified, and were made during Mr Stewart’s submissions before Mr Hughes came to put his submissions. In isolation, they expressed a firmly adverse view of Mr Slavin’s evidence and a firmly favourable view of Mr Parson’s evidence, without the claimant having the opportunity to put her submissions as to Mr Slavin’s credibility. But they are not to be seen in isolation, and the opponent submitted that in the circumstances in which the observations were made and having regard to the totality of what the judge said they were no more than statements of preliminary views: robust statements, but not foreclosing change.

29 The circumstances in which the observations were made were these.

30 First, it would have been evident to the hypothetical observer, from the judge’s references to the transcript and the documentary evidence in her exchanges with counsel, that prior to the submissions she had given the evidence close attention. She was speaking from a position of recent consideration of the evidence. In placing the “first explicit complaint” by Mr Slavin to Mr Parsons in April 2001, the judge may have been wrong. Mr Parsons said that his first discussion with Mr Slavin “concerning what Mr Slavin described as problems with water leaking into his mother’s unit” was probably in early 2001; he later identified the same discussion in response to a question about Mr Slavin “claim[ing] that the roof membrane on the south tower needed urgent attention”. Her Honour may have intended that more was required for a ”specific complaint”, which was undoubtedly made in April 2001. That, however, gave point to her saying that Mr Hughes might persuade her to a different view.

31 Secondly, from a reading of the transcript it stands out that Mr Slavin was a most unsatisfactory witness, and there was ample reason to regard his evidence as unreliable. This is not to excuse exhibition of prejudgment because the case for that judgment is strong, which is impermissible (see Antoun v The Queen). It provides a basis for the hypothetical observer to have appreciated why the judge might indicate a preliminary view adverse to the reliability of Mr Slavin’s evidence, and at an early point, so as to provide a focus for the submissions and to enable a corrective response.

32 Thirdly, from a reading of the transcript nothing stands out to controvert the statement that Mr Parsons was an impressive cogent witness. Again, that does not excuse exhibition of prejudgment, but provides a basis for the hypothetical observer to have appreciated why the judge might indicate a preliminary view favourable to his evidence. The hypothetical observer could, however, have doubted the description of a virulent attack upon Mr Parsons’ veracity and probity. The cross-examination was lengthy and searching. It did call in question Mr Parson’s credibility as to some matters, and by questions concerning what “as a solicitor and somebody cognizant of the duties contained in the Act” he believed his responsibilities were, and delinquency in fulfilling them, there was a degree of challenge to his probity. On a number of occasions the cross-examiner took issue with Mr Parsons as to failing to answer questions, not always with justification, and he asserted that Mr Parsons was “making speeches” and being “some sort of advocate for your cause”. I do not think the bounds of proper cross-examination were exceeded, but by “virulent” the judge may have had these matters in mind. If she meant more, such as one of the Macquarie Dictionary meanings “violently or venomously hostile”, the hypothetical observer is likely to have thought the description unwarranted.

33 In paying regard to the totality of what the judge said, her initial agreement with Mr Stewart was softened by being as to Mr Slavin’s evidence “on the whole”, and it was clear that she was prepared to accept some of Mr Slavin’s evidence (the nature and extent of the 2000 renovations). She also considered that what Mr Stewart submitted was evasiveness was not, but was due to being at cross-purposes, and it was evident that she did not take a comprehensively adverse view of his evidence. Of most importance, however, was the qualification concerning persuasion to a different view surrounding the observations on which the claimant relied.

34 The qualification was made in the judge’s initial reference to the first explicit complaint made by Mr Slavin to Mr Parsons. The judge expressed a view as to a particular fact, plainly enough to promote efficient progress of submissions but also accepting that it was a view which might be changed by Mr Hughes’ submissions; she effectively invited submissions to that end. Although the qualification was stated only in relation to the particular fact, it was readily applicable to views otherwise expressed as to the evidence of Mr Slavin.

35 That it did so apply was made patent when the judge later said that she thought Mr Slavin’s uncorroborated evidence was unreliable and “[a]s I said before, perhaps I’ll be persuaded to a different view, but that’s the overall impression of his evidence I formed”. The claimant submitted that the judge had not said this before as to Mr Slavin’s evidence generally, and that her incorrect assertion should be seen as a recognition by the judge that she had overstepped the line in her earlier observations and an attempt to repair the prejudgment. I do not agree. In my opinion, the judge was referring to what she had earlier said in relation to the first explicit complaint made by Mr Slavin to Mr Parsons, transposing and applying it to what she had then said as to the evidence of Mr Slavin.

36 The judge dissuaded Mr Stewart from “talk[ing] a great deal to me about Mr Parsons”. That followed her description of Mr Parsons as an impressive cogent witness and, while acceptance of Mr Parsons’ evidence did not necessarily accompany rejection of Mr Slavin’s evidence, on the issues at the trial they were closely related. Persuasion to a different view of Mr Slavin’s evidence was tied in with persuasion to a different view of Mr Parsons’ evidence, and the judge’s reference to Mr Parsons’ “deposition” and the opponent’s records as “the most reliable source of the relevant facts in this case” was, in the light of what she had earlier said, subject to the same qualification of persuasion to a different view.

37 In my opinion, the judge did not cross the line. The test is one of possibility, “real and not remote” (Ebner v Official Trustee in Bankruptcy, above), but the hypothetical observer is fair-minded and an apprehension that the judge might have prejudged the reliability of Mr Slavin and Mr Parsons must be a reasonable apprehension. I do not think there was a real possibility that the fair-minded lay observer, informed and having regard to all the judge said and the circumstances and looking beyond the observations on which the claimant relied, might see more than the expression of preliminary views, open to change.

The other matters

38 The claimant put no submissions to support error in finding that the damages were no more than $2,042. It appears to have been recognised that the finding could not successfully be challenged if the judge’s view of the reliability of Mr Slavin’s evidence remained in place, its displacement depending on obtaining a new trial by reason of reasonable apprehension of bias. Even if this was not recognised, in my view that was the position. Thus the matters of error in the nature of the duty under s 62(1) of the Act and in finding that the opponent had not been dilatory or careless in maintaining or repairing the roof affected only recovery of $2,042.

39 The claimant pressed the importance of determining the correct construction of s 62 of the Act, which had been the subject of a diversity of opinion in Ridis v Strata Plan 10308 [2005] NSWCA 246. However, in that case the discussion of s 62 was directed to the extent to which the obligations it created “informed” the scope of the common law duty of care of the owners’ corporation: see at [42] (Tobias JA) and [90] (McColl JA). Absent some other persuasive consideration, it would not be appropriate to grant leave to reconsider that discussion in the different circumstances of the present case, in which the issue arose with respect to a claim for damages arising out of a breach of statutory duty.

40 The claimant accepted that s 62(1) involved some opportunity for knowledge and action. The judge found that the opponent “acted in a timely and appropriate manner to maintain the Roof and to repair the Roof”, following that finding with the statement that the claimant “does not persuade me that the defendant was dilatory or was careless in maintaining the roof or in repairing the Roof”. Whether the opponent acted in a timely and appropriate manner was a judgmental decision on facts requiring a conclusion as to opportunity for knowledge and action, and even if there be an arguable case that the judge was in error I do not think leave should be granted to appeal on the nature of the duty under s 62(1) or on the judge’s finding. Much money has been spent over damages in a small amount. The reasons for requiring leave to appeal to which Kirby P referred in Carolan v AMF Bowling Pty Ltd (CA, 16 November 1995, unreported) are material, in particular that of proportionality between costs and the amount at stake, as are the observations by Cole JA in that case that where small claims are involved “there must be an early finality and determination of litigation otherwise the costs which will be involved are likely to swamp the money sum involved in the dispute”.

41 Leave to appeal should be refused as to the other matters.

Orders

42 I propose the orders -

(1) Grant leave to appeal in relation to disqualification by reasonable apprehension of bias and direct the filing of a notice of appeal within seven days; otherwise refuse leave to appeal.

(2) Appeal dismissed.

(3) Claimant/appellant pay opponent/respondent’s costs.

43 BRYSON JA: I agree with the judgment of Giles J A and with the orders which his Honour proposes, but I will add some observations.

44 Although I do not have the learned Trial Judge’s advantage of having heard and seen Mr Slavin as he gave his evidence, I have a strong impression after reading the transcript of that evidence that it would be very difficult to place confidence in it. Intrusions of vehemence of expression and of irrelevance intersperse his accounts of relevant matters in a manner which, in my interpretation based only on the printed word, make it very difficult to place confidence in passages attributable to calmer moments. The view that on the whole the evidence is most unreliable is in no way remarkable, and a fair-minded lay observer would, in my interpretation, feel no surprise that this view became an established reality early in the debate on the conclusions to be drawn from his evidence.

45 In my understanding the fair-minded lay observer is an observer of the whole proceedings and does not form views on high points or on low points in what occurs. The fair-minded lay observer would expect engagement with reality, would feel no surprise when the obvious was stated, and would not proceed to adverse conclusions if it were: judges, barristers, litigants and fair-minded lay observers must inhabit reality.

46 It is not possible to give approval to the Trial Judge’s expressions which form the high points of the claimant's case. The words which the Trial Judge chose to use were unguarded and indiscreet, and could not be part of any model of judicial conduct. However it is my view that, when taken with the course of the hearing which Giles JA has reviewed, they do not give rise to reasonable apprehension of prejudgment. There must be a whole view of the Trial Judge’s observations during Mr Stewart's address, in the context of the evidence of Mr Slavin and of Mr Parsons which was under debate. An apprehension of prejudgment would not be reasonable if it were based only on or were unduly influenced by some unusually blunt or direct judicial observation, without regard to the whole course of events.

47 BASTEN JA: I agree with Giles JA

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