Smits v Roach

This case concerned an appeal to the High Court of Australia regarding allegations of apprehended bias against a trial judge, McClellan J. The appellant, Smits, argued that the judge should have been disqualified from hearing the proceedings due to a familial association with his brother, who allegedly had an indirect pecuniary interest in the outcome of the litigation. A further point of contention was that the judge's brother was given access to the judge's draft reasons before their delivery, and this association was not disclosed until the conclusion of the trial.

The High Court was required to determine whether the circumstances gave rise to a reasonable apprehension of bias on the part of McClellan J. This involved applying the two-step test established in *Ebner v Official Trustee in Bankruptcy*, which necessitates identifying the source of the alleged bias and then articulating a logical connection between that matter and a feared deviation from impartial decision-making. The Court also considered whether the appellant had waived his right to object by failing to raise the issue promptly.

The High Court found that the New South Wales Court of Appeal had erred in its application of the *Ebner* test. While the Court of Appeal identified the familial association as a potential source of bias, it failed to adequately articulate the logical connection between this association and any feared deviation from impartial decision-making. The High Court emphasised that a bare assertion of interest is insufficient; the nature of the interest and its connection to the possibility of departing from impartial judgment must be explained. The Court concluded that the Court of Appeal had focused on the first step of the *Ebner* test to the detriment of the second, and that the reasoning of the Court of Appeal was not compelling.

The appeal was dismissed with costs.