Stone v Moore

[2015] SASC 46

SUPREME COURT OF SOUTH AUSTRALIA

(Miscellaneous Appeal: Civil)

STONE v MOORE

[2015] SASC 46

Judgment of The Honourable Justice Nicholson

24 March 2015

PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - REASONABLE SUSPICION OF BIAS

PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - OTHER MATTERS

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FOR BIAS IN JUDICIAL PROCEEDINGS

Appeal from a District Court Judge’s dismissal of an application to recuse himself from the further hearing of a defamation trial on the ground of apprehended bias.  During a final pre-trial directions hearing and on the morning of the first day of trial, the trial Judge engaged with counsel for the appellant on various issues, and in doing so indicated preliminary views.  The appellant, who was present in court on both occasions, made an application that the trial Judge recuse himself from any further hearing of the trial.  The application was brought on the basis that the Judge’s remarks gave rise to an apprehension of bias and of prejudgment of critical issues to be determined in the action.  The application was dismissed by the Judge.  The trial was adjourned about one hour before the normal finish time on the first day to resume the next morning.  The adjournment was on the application of the appellant for the reason that she wished to obtain the advice of her counsel concerning the availability and prospects of an appeal.  Upon resumption the following morning, the appellant brought an application that the trial be adjourned sine die pending a foreshadowed appeal from the Judge’s refusal to recuse himself.  The application was allowed.

On appeal, the appellant seeks orders precluding the trial Judge from the further hearing of the matter and requiring that the trial be heard by another Judge of the District Court.  The respondent seeks summary dismissal of the appeal, on the basis that it is incompetent, because no appeal lies from a judge’s refusal to recuse and no further appellable order was made by the Judge.   In the event that the appeal is competent, the respondent submits that the appeal should fail on the merits, because no apprehension of bias arose. 

The appeal raises three main issues.  The first is whether the appeal is competent.  Does an appeal lie, and if so, in what circumstances, from a judge’s refusal to recuse himself or herself on the ground of apprehended bias from the further hearing of a matter?  The respondent’s application for summary dismissal is premised on the notion that the appeal in this case is incompetent.  The second issue is, in the event that the appeal is competent, what is the test to be applied in determining whether the Judge’s behaviour gave rise to a reasonable apprehension of bias?  The appellant contends that the subjective views of the appellant are relevant, whereas the respondent submits that the test is confined to a consideration of the position of the fair-minded, lay observer.  The third issue is whether, on the facts, a reasonable apprehension of bias has been made out such that the Judge should have recused himself.

Held: Appeal dismissed. No appeal lies from a bare refusal to recuse. Further, the first adjournment (overnight) was a mere incidental ruling which was not amenable to appeal.  The appeal is, therefore, incompetent. In any event, even if the appeal were to be competent, the appeal would fail on the basis that the Judge’s remarks were not such as to create a reasonable apprehension of bias in a fair-minded lay observer.

Family Law Act 1975 (Cth); Supreme Court Act 1935 s50, s69; District Court Act 1991 s3, s43; Magistrates Court Act 1991 s42; Defamation Act 2005 Part 3; Supreme Court Civil Rules 2006 r199, r200, r288, referred to.
Daniels v DCT [2007] SASC 114; Graziano v Graziano [2008] SASC 142; Beveridge Bottlers (SA) Ltd (in liq) & Anor v Abode Enterprises Pty Ltd [2009] SASC 272; Stone v Moore [2014] SADC 183; Stone v Moore (No 2) [2014] SADC 185; Lee v Cha & Ors [2008] NSWCA 13; The Queen v Watson; Ex parte Armstrong [1976] HCA 39, (1976) 136 CLR 248; Michael Wilson & Partners v Nicholls [2011] HCA 48, (2011) 244 CLR 427; Barton v Walker [1979] 2 NSWLR 740; Southern Equities Corporation Limited & Ors v Bond & Ors [2000] SASC 450, (2000) 78 SASR 339; Gas & Fuel Corporation Superannuation Fund & Ors v Saunders & Anor (1994) 52 FCR 48; Siewertsz Van Reesema v Police [2009] SASC 8; Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126; Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337; Barakat v Goritsas [2012] NSWCA 8; Johnson v Johnson [2000] HCA 48, (2000) 201 CLR 488; Livesey v New South Wales Bar Association [1983] HCA 17, (1983) 151 CLR 288; Vakauta v Kelly [1989] HCA 44, (1989) 167 CLR 568; Webb v The Queen [1994] HCA 30, (1994) 181 CLR 41; Smits v Roach (2006) 227 CLR 423, [2006] HCA 36; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577, [2006] HCA 55; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283, [2011] HCA 2; Antoun v The Queen [2006] HCA 2, (2006) 224 ALR 51, 80 ALJR 497; The Queen v Joyce [1970] SASR 184, considered.

STONE v MOORE
[2015] SASC 46

Miscellaneous Appeal:  Civil

NICHOLSON J.        

Introduction

1. This is an appeal against a District Court Judge’s refusal to recuse himself from continuing to hear a civil trial on the ground of apprehended bias.[1]

   [1]    It would seem that rule 288 of the Supreme Court Civil Rules 2006 does not extend to require, and there is no other rule that requires, permission to be obtained for an appeal to a single Judge of the Supreme Court against an interlocutory order of the District Court; Daniels v DCT [2007] SASC 114, Graziano v Graziano [2008] SASC 142, Beveridge Bottlers (SA) Ltd (in liq) & Anor v Abode Enterprises Pty Ltd [2009] SASC 272.

2. The appellant (plaintiff at trial), who at the time of filing her statement of claim was 74 years old, is prosecuting defamation proceedings against her brother (defendant at trial and respondent to this appeal).  The summons and statement of claim were filed in the District Court on 6 November 2012.  The claim is based on remarks allegedly made by the respondent in a conversation with the appellant’s adult son and daughter-in-law in the presence of the respondent’s domestic partner and in a subsequent email sent by the respondent to the daughter-in-law, both in August 2012.  The appellant contends that the respondent falsely and maliciously impugned her character by asserting that she, when young, fell pregnant out of wedlock which pregnancy, because of the shame and disgrace then felt by the family, she terminated by way of a backyard abortion. 

3. It took almost two years before the matter found its way to trial.  A final pre-trial directions hearing was held on 30 October 2014.  The trial commenced four days later on 3 November 2014.  During the 30 October hearing at which the appellant was present, the Judge who was to hear the trial directed certain statements to counsel for the appellant, Mr Heywood-Smith QC, and counsel for the respondent, Mr Short.[2]

   For the moment I’ve only read the pleadings and I’ve got to say, Mr Heywood-Smith, as things currently appear to be, and obviously enough, this is subject to what might come out in the evidence, but my tentative, and I stress it’s my tentative view, is that even if you were to succeed I just cannot for the moment see how you’d be entitled to any more than relatively nominal[3] damages, and again as presently advised, Mr Short, and I haven’t read terribly many authorities on the topic, I’m having difficulty in seeing how qualified privilege can extend as far as you obviously contend that it does.

   [2]    I have italicised some passages for ease of reference later in these remarks.

   [3]    The term “relatively nominal” damages is somewhat obscure.  Ordinarily damages can be characterised as nominal or as a reflection (insofar as can practicably be achieved) of actual loss or harm proved.  It is to be noted that in the next quoted passage his Honour referred simply to “nominal’ damages.  In any event, I apprehend and I would expect counsel to have apprehended that his Honour was stating that, without having formed a final view, the type of claim before him, in the absence of any claim for financial loss, and given the circumstances as pleaded, was likely to attract moderate damages.

4. On the morning of 3 November, the first day of trial, the Judge made further observations which lead to an extended exchange with the appellant’s counsel.[4]  Mr Douglas was now acting on behalf of the respondent, with Mr Heywood-Smith still acting on behalf of the appellant who was again present in court.

   [4]    Again, I have italicised and emboldened some passages for ease of reference later in these remarks.

5. The Judge commenced by addressing Mr Heywood-Smith as to the basis of the appellant’s claim.

   His Honour:            As far as the joint statement of issues[5] is concerned, I’ve had a look at it. Obviously enough, I haven’t had the opportunity to analyse it in any great detail, but, Mr Heywood-Smith, I feel bound to say that it seems to me, subject to any evidence that’s called and submissions that I might ultimately accept, that you do face some very significant difficulties and I repeat what I said about the difficulty I’m seeing in how, as presently advised – and I stress this is only a tentative view – you would ever be entitled to anything more than nominal damages.

   [5]    The Joint Statement of Issues was a document provided to the trial Judge prior to commencement of the trial which was intended to outline the issues in dispute. At paragraph 3 of that document, the respondent essentially summarised his contention that the remarks which the appellant claims were defamatory were not, in fact, defamatory. 

   I must say, at first glance, what Mr Douglas says at para.3 of the joint statement of issues for determination strikes me as having considerable force and obviously enough, I don’t need to tell you about costs implications.

   Mr Heywood-Smith:   No, I’m grateful for your Honour’s intimation, it enables me to concentrate on those issues in opening, which I’ll commence now.

   His Honour:            If you want some time to have a think about it, I’m quite happy to give it to you.

   Mr Heywood-Smith:   I think your Honour needs to hear the opening. Obviously my client does not come here lightly.

   His Honour:            I would sincerely hope not.

   Mr Heywood-Smith:   Your Honour will hear from the plaintiff about a conversation that she had with her son the day after he’d had a conversation with his uncle in which matters were stated that she had never heard of in her life, no awareness of, allegations of a backyard abortion, which at the relevant time was a criminal offence, as your Honour will no doubt recall, matters put to –

   His Honour:            Often occurring in the most mitigating of circumstances.

6. The Judge went on to canvas the possibility of the matter being resolved by way of an apology from the respondent.

   Mr Heywood-Smith: Certainly, but matters put to the dearest people in her life; her son and daughter-in-law and then followed by an email to her daughter-in-law, effectively repeating and restating the matters.  She'll tell your Honour that she's had no apology from her brother throughout the whole of the proceedings, that the brother has filed a defence which did not to justify the imputations and she'll tell your Honour that in those circumstances, she can only assume -

   His Honour:            Actually, I would have thought the apology in other sections of the Defamation Act should have been sharply in focus in this case from the point of view of both parties.

   Mr Heywood-Smith:   My client doesn’t see anything to apologise for, but there’s been no apology.

   His Honour:            I mean in the sense of perhaps seeking a summary address (sic: redress) by inviting the defendant to engage those sections.

   Mr Heywood-Smith:   Absolutely. Those matters will be addressed. So your Honour will note –

   His Honour:            It might not be a bad idea to address them now, it seems to me, Mr Heywood-Smith.

   Mr Heywood-Smith    That’s a matter for the defendant we would have thought.

   His Honour:            If Mr Douglas wants to address the relevant sections now, I’m quite happy to give him the time to do so and I understand what you’ve just been saying about the effect of this conversation, but to my current way of thinking, I still have difficulty in seeing that it can get you where you want to go.

7. The Judge and counsel then had an exchange concerning the availability of damages in defamation claims which developed into the following discussion concerning which party had initiated the proceedings.

   Mr Heywood-Smith:   If your Honour turns to p.8, your Honour will see there's a list there of cases that is related to the table in Sexton that might be of some guide.  The significant thing here is, as I've indicated, the failure of the defendant to apologise, not only initially, but at the time when he files a defence in which it is made apparent that he is not seeking to justify the imputations and the message that that can only send to the plaintiff is 'Well, I can't justify it, but I believe it and I'm not going to apologise'.  That can only aggravate the damages.

   This is a case where the plaintiff is not seeking a large sum of damages, indeed to the contrary, but unfortunately she has been brought to this court and is obliged to proceed.

   His Honour:            She initiated the proceedings, Mr Heywood-Smith.

   Mr Heywood-Smith:   With respect, the defendant initiated the proceedings by making the publication and –

   His Honour:            He might have made a publication, that’s a matter for evidence, though there is an admission of some publication, but at the end of the day, it’s your client that filed the statement of claim.

   Mr Heywood-Smith:   That’s so and short of –

   His Honour: The fact that you’re saying you’re not seeking a huge amount of damages brings part 3 of the Defamation Act[6] even more firmly into focus, it seems to me. The more you talk, the more you make me think that this case is plainly capable of resolution.

   Mr Heywood-Smith:  We've heard what your Honour says, I'm happy for your Honour to adjourn momentarily.  I'm most concerned that the matter move forward if it has to go forward.  

   His Honour:     There's no question of that, Mr Heywood-Smith.  For the moment I'll adjourn for half an hour.  If you want longer than that, just get in touch with my associate and both parties can have as much time as they think they need.  I'll adjourn until 11.         

   [6] Part 3 of the Defamation Act 2005 (SA) deals with the “resolution of civil disputes without litigation”.

8. At this point, his Honour adjourned for a short time to enable the parties to reflect on their respective positions.  On the resumption, Mr Heywood-Smith made an application that the Judge recuse himself from any further hearing of the matter. The application was put in the following terms.

   [I] am instructed to make an application to your Honour that your Honour recuse yourself from further hearing the matter. The basis of the application is that my client is concerned about your Honour’s assertion that ‘Your client issued the proceedings in an accusatory way’; she’s concerned the statement was said without knowledge by your Honour as to what matters preceded the issue of the proceedings, and that it was said in a manner which sent a message to the plaintiff that your Honour had no empathy at all for her or her predicament.

   I interpolate here that, whilst the transcript records as counsel’s submission that his client was concerned about the Judge’s assertion that “your client issued the proceedings in an accusatory way”, this was not in fact what was said.  The Judge said “she initiated the proceedings, Mr Heywood-Smith” and “... at the end of the day, it’s your client that filed the statement of claim.”  As I understand the submission put and as I am confident the Judge understood it, the complaint was and is that the Judge asserted that Mr Heywood-Smith’s client issued the proceedings and that his Honour did so “in an accusatory way”. 

9. His Honour responded to the application in this way.

   Well, it was meant to send a message to you Mr Heywood-Smith, to the effect that it was your client who filed the statement of claim. That’s where it starts in my view, and, as far as I’m concerned, anything I’ve said so far was, as I think I made plain, either expressly or by necessary implication, on the basis of things as they currently stand.

   I think I made it perfectly clear at least once that any tentative views that I might hold are subject to evidence and submissions which I might ultimately hear and, obviously enough, they may well have the capacity to demonstrate to me that my initial views, tentative views, without the advantage of evidence or submissions, were plainly wrong.

10. Two affidavits were read in support of the application to recuse; an affidavit of Lisa Amabili, solicitor for the appellant, and an affidavit of the appellant herself.  Ms Amabili deposed, inter alia, to the Judge speaking in an “argumentative, aggressive and accusatory way” and appearing to be angry with counsel when he indicated that it was the appellant who had initiated the proceedings.  The appellant deposed to her apprehension of bias as a result of the Judge’s remarks which she interpreted to be an indication that he considered her claim to be “trivial” and “frivolous”.

11. After hearing submissions the Judge adjourned briefly but ruled on the application later that same day.  His Honour refused to disqualify himself.  He provided concise reasons that dealt with the essential issues.[7]  Shortly after the ruling, Mr Heywood-Smith requested a further adjournment.  He indicated that he had received instructions from the appellant to advise her on the prospects of an appeal from the Judge’s ruling.  At 3.28pm, the matter was stood over until not before 10:30am the next day, being 4 November 2014, in order for counsel to have an opportunity to properly consider and advise his client as to the prospects of an appeal.

    [7]    Stone v Moore [2014] SADC 183.

12. At the resumption the next morning, Mr Heywood-Smith indicated that his instructions were to lodge an appeal against the Judge’s dismissal of the application to recuse.  An application was then made for the trial to be adjourned to enable that appeal to take place.  The application was opposed by the respondent.   The Judge heard submissions from both parties.  Notwithstanding reservations concerning both the availability and prospects of such an appeal, as expressed in his reasons, the Judge upheld the application and adjourned the trial pending the outcome of the appeal.[8]  His Honour indicated that his primary motivation was to avoid further time and money being wasted on a trial that had barely begun in the event that the appeal were to be successful.

    [8]    Stone v Moore (No 2) [2014] SADC 185.

    The appeal

13. By Notice of Appeal filed 4 November 2014, the applicant has appealed against the trial Judge’s refusal to recuse himself.  The applicant seeks an order preventing the Judge from continuing to hear the trial on the following grounds.

    (i)the Judge failed to have proper regard to the affidavits of Ms Amabili and the appellant which deposed to an apprehension of bias and the basis thereof;

    (ii)the Judge erred in finding that a reasonably informed and fair-minded observer would not have had an apprehension of bias in the circumstances disclosed by the affidavits;

    (iii)the Judge erred in failing to find that it was sufficient to disqualify himself if the appellant (as opposed to an informed, fair-minded observer) had an apprehension of bias which was reasonable; and

    (iv)the Judge erred in finding that there was no reasonable apprehension of bias by both the appellant and a fair-minded observer deriving from an apparent prejudgment by the Judge of the issues of damages, whether the publications were defamatory and whether the appellant should have embarked on the litigation.

1. The respondent filed an interlocutory application on 5 November 2014, seeking summary dismissal of the appeal.  Argument with respect to that application was heard in conjunction with the argument on the appeal. 

2. On appeal, counsel for the respondent sought to rely on two affidavits in support of his application for summary dismissal and his opposition to the substantive appeal which affidavits had not been before the Judge; one by Alyssa-Marie Sallis, a solicitor for the respondent and one by Susan Pryor, the partner of the respondent.[9]  Both deposed, inter alia, to their apprehension of the demeanour and tone of voice of the Judge at the time of relevant exchanges with counsel.  Counsel for the appellant objected to the affidavits on the basis that they did not qualify as admissible fresh evidence on an appeal because they could, with reasonable diligence, and should have been made available to the Judge.

   [9]    Susan Pryor is the person, in addition to the appellant’s son and his wife, who is alleged by the appellant to have been present during the allegedly defamatory conversation in October 2012.

3. In an ex tempore ruling, without reasons, delivered at the conclusion of the oral argument on the appeal, I received both of the affidavits de bene esse in support of the respondent’s interlocutory application for summary dismissal.  I declined to receive the affidavits for the purpose of the appeal itself.  In the circumstances, neither affidavit, whilst admissible and to be received on the interlocutory application, has been of any assistance in that respect and I have placed no weight on either.

   The issues on appeal

4. The appeal raises three main issues.  The first is whether the appeal is competent.  Does an appeal lie, and if so, in what circumstances, from a judge’s refusal to recuse himself or herself on the ground of apprehended bias from the further hearing of a matter?  The respondent’s application for summary dismissal is premised on the notion that the appeal in this case is incompetent.  The second issue is, in the event that the appeal is competent, what is the test to be applied in determining whether the Judge’s behaviour gave rise to a reasonable apprehension of bias?  The appellant contends that the subjective views of the appellant are relevant, whereas the respondent submits that the test is confined to a consideration of the position of the fair-minded, lay observer.  The third issue is whether, on the facts, a reasonable apprehension of bias has been made out such that the Judge should have recused himself.

   Is the appeal competent?

5. There is a statutory right of appeal from a judgment of the District Court.  In addition, in cases where, as an inferior court of record, the court commits jurisdictional error, judicial review may lie to the Supreme Court of this State in its general supervisory jurisdiction.[10] The right of appeal which is pursued in these proceedings arises pursuant to section 43 of the District Court Act 1991.

   [10]   For the position in New South Wales, see, eg, Lee v Cha & Ors [2008] NSWCA 13 at [28]. However, the statutory background in New South Wales is different. The power to exercise judicial review in this State would seem to derive from the inherent jurisdiction of the Supreme Court. Rules 199 and 200 of the Supreme Court Civil Rules 2006 govern its exercise.

   43—Right of appeal

   (1)A party to an action may, in accordance with the rules of the appellate court, appeal against any judgment given in the action.

   (2)The appeal lies—

   …

   (b)     in the case of an interlocutory judgment given by a Judge—to the Supreme Court constituted of a single Judge;

   …

   (3)The appeal lies as of right, or by permission, according to the rules of the appellate court but, in the case of an appeal against a final judgment of the Court in its Administrative and Disciplinary Division, permission is required to appeal on a question of fact.

   The term “judgment” for this purpose is defined in section 3 as “a judgment, order or decision and includes an interlocutory judgment or order”.

6. The first question that arises is whether the trial Judge’s refusal to recuse himself constitutes a judgment from which an appeal lies.  The appellant submits that such a refusal stands alone as an appellable decision.  In the alternative, the appellant submits that where a judge’s refusal is subsequently followed by an interlocutory judgment or order, a right to appeal that judgment or order arises on the basis that the court making the order was not properly constituted to hear the matter because of the apprehended bias.  In this latter respect, the appellant relies on the ruling, made by the Judge on the afternoon of 3 November 2014, after having ruled against the recusal application, to adjourn the matter to the following morning.

7. The respondent submits that a bare refusal to recuse is not appellable.  Further, whilst the respondent concedes that a right of appeal may arise with respect to a subsequent interlocutory judgment or order, he submits that an adjournment ruling is not a judgment or order amenable to appeal.

8. In The Queen v Watson; Ex parte Armstrong,[11] the High Court considered a wife’s application for a writ of prohibition directed to a Judge in Family Court proceedings who was to hear an application for dissolution of marriage and ancillary relief.  It was alleged that the Judge was biased against the applicant wife and had prejudged, adversely, her credit.  In the event that a ground for the issue of a writ of prohibition were to be made out the availability of other relief, such as a right of appeal, would be relevant, as a discretionary consideration, to the grant of the writ.  It was in this context that the plurality considered whether the Judge’s rejection of the application to recuse himself could form the basis of an appeal.

   It was submitted on behalf of the husband that the wife's proper remedy was to appeal to the Full Court of the Family Court. As to that submission no more need be said than that an appeal lies only from a "decree" (s. 94 (1) ), which means a "decree, judgment or order" (s. 4 (1) ), and a judge who simply continues to sit after it has been submitted that he is disqualified does not thereby make a "decree". No doubt an appeal could have been brought if the learned judge had finally given judgment in the matter, but it would be obviously inconvenient to allow him to complete the proceedings when he is disqualified to hear them.[12]

   [11] [1976] HCA 39; (1976) 136 CLR 248.

   [12]   At 266 per Barwick CJ, Gibbs, Stephen and Mason JJ.

9. Counsel for the respondent submits that Watson; Ex parte Armstrong stands as authority for the proposition that a trial judge’s refusal to recuse himself in the context of a claim of apprehended bias is an incidental ruling not capable of appeal and that this has remained the position in Australia in the nearly 40 years that have passed since Watson; Ex parte Armstrong.  The appellant contends that the observations of the plurality are limited by the context in which they occurred, being a claim for prerogative relief in proceedings under the Family Law Act 1975 (Cth).  According to the appellant, the observations were obiter and their otherwise persuasive character must now be doubted given the later decision of the High Court in Michael Wilson & Partners v Nicholls.[13]  Before considering that decision, I should briefly discuss just some of the many intervening cases that have considered this question.

   [13] [2011] HCA 48; (2011) 244 CLR 427.

10. The issue of whether an appeal lies from a bare refusal to recuse arose for consideration in Barton v Walker.[14]Samuels JA (with whom Reynolds and Glass JJA agreed) made the following observation.

    What emerges from these authorities is that, even where an interlocutory procedure has been established for disqualification on the ground of actual bias, the public interest in the expeditious administration of justice is seen to militate against interlocutory appeals (or their equivalent) where all questions at issue may be determined upon an appeal after final judgment.[15]

    His Honour proceeded to adopt the observations of the majority in Watson; Ex parte Armstrong.

    But in the end this first question is determined by what was said by the majority in Watson’s case: “It was submitted on behalf of the husband that the wife’s proper remedy was to appeal to the Full Court of the Family Court. As to that submission no more need be said than that an appeal lies only from a ‘decree’ (s. 94(1)), which means a ‘decree, judgment or order’ (s. 4 (1)), and a judge who simply continues to sit after it has been submitted that he is disqualified does not thereby make a ‘decree’.[16]

    [14] [1979] 2 NSWLR 740.

    [15]   At 751.

    [16]   At 751 (citation omitted).

11. The issue was considered by the Full Court of this State in Southern Equities Corporation Limited & Ors v Bond & Ors.[17]  That case involved an appeal from the dismissal of separate applications brought by each appellant that the trial Judge disqualify himself from further hearing any proceedings in the matter and that the trial be heard by another Judge.  However, the competency of the appeal was not raised.  The respondents preferred that the merits be resolved “in the interest of the economic conduct of the litigation.”[18]  Nonetheless, Olsson J provided, by way of obiter, the following summary of the relevant law as it then stood.

    Having heard the submissions of the parties I am content to accept that, in the particular circumstances of this case, the Full Court may properly entertain the appeal. Had this been a purported appeal against a bare refusal by a trial judge to recuse himself, I would have been constrained to adhere to the reasoning expressed by me in Kapetanos & Anor v Selig & Ors (1984) 37 SASR 493, which was based on what fell from the High Court in R v Watson: Ex parte Armstrong (1976) 136 CLR 248 at 266 and derives support from Barton & Anor v Walker & Anor [1979] 2 NSWLR 740, Nicholson v Griffiths (1988) 143 LSJS 204 at 210 and a dictum of Doyle CJ in the recent case of IOOF Australia Trustees Ltd v Seas Sapfor Forests & Ors (1999) 78 SASR 151 ("IOOF"). With the greatest respect, I perceive nothing in Brooks v The Upjohn Company & Ors (1998) 156 ALR 622 or Australian National Industries Ltd v Spedley Securities Ltd (In Liq) (1992) 26 NSWLR 411 ("Spedley") which convincingly impugns that reasoning.

    In Spedley (at 437) Mahoney JA expressed the view that Barton v Walker was properly decided. However, he was able to distinguish it by reason of the fact that, in the case then under consideration, the appeal was founded on a decision to refuse an application that the action not be listed before the judge in question and that the trial date be vacated. As Doyle CJ pointed out in IOOF, it is clear that, if some order is made by a Judge before an action is finally disposed of, a complaint of bias may properly be raised in connection with an appeal against the relevant order (Rajski v Wood & Ors (1989) 18 NSWLR 512 at 518, Gas & Fuel Corporation Superannuation Fund & Ors v Saunders & Anor (1994) 52 FCR 48 at 64).[19]

    [17] [2000] SASC 450; (2000) 78 SASR 339.

    [18]   At [2] per Olsson J.

    [19]   At [3]-[4].

12. Bleby J, with whose reasons Olsson J agreed, also explored the issue of whether a bare rejection of a recusal application could form the basis of an appeal. 

    A request, in whatever form, that a judge disqualify himself or herself could seldom be regarded as an inter partes application requiring resolution of an inter partes dispute by the judge. A decision to proceed with a hearing, or not to proceed, likewise would not generally be regarded as an order binding on parties and necessarily requiring them to do or to refrain from doing something, being orders of a type usually made by judges of this Court. For that reason, it is not surprising that four members of the High Court in their joint judgment in R v Watson; Ex parte Armstrong (at 266) said that a judge who simply continues to sit after it has been submitted that he is disqualified does not thereby make a "decree", and that no appeal would lie from such decision. In that case, "decree" was defined to mean a "decree, judgment or order". Likewise, subsequent decisions holding that appeals against such rulings are incompetent are also not surprising. I refer in particular to Barton v Walker [1979] 2 NSWLR 740, Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272 at 273 per Priestley JA, Kapetanos v Selig (1984) 37 SASR 493 and R v Rogerson (1990) 45 A Crim R 253. In each of those cases, the applications made to the judge or magistrate concerned to disqualify himself were held not to be justiciable applications. They could not give rise to an interlocutory order from which an appeal could be brought. The reasoning in those cases was referred to but not passed upon in Nicholson v Griffiths (1988) 143 LSJS 204 at 210 and again by the present Chief Justice in IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd (1999) 78 SASR 151.

    However, some of the reasoning has also been criticised by Kirby P in Rajski v Wood (1989) 18 NSWLR 512 at 518 and by the Full Court of the Federal Court of Australia in Brooks v Upjohn Co (1998) 85 FCR 469.

    In Rajski there was an application to the Court of Criminal Appeal, apparently seeking to invoke original jurisdiction, for declarations that the trial judge should have disqualified himself and that the decision of the Chief Justice and/or listing judge to list the matter before the judge in question was invalid. The judges concerned were sued as parties. The application was dismissed as incompetent because it disclosed no reasonable cause of action (Priestley JA and Hope AJA) and because it was vexatious and an abuse of process (Kirby P). However, Kirby P considered that if an ancillary order had been made which was dependent upon the finding of the intended trial judge that he was not disqualified, an appeal, subject to the obtaining of leave, would lie.

    Brooks was an application made by formal notice of motion, resulting in a sealed order of the judge that the orders sought by the applicant be not made, and providing for costs of the unsuccessful disqualification application. Barton v Walker was distinguished on the basis that in the latter case no notice of motion had been filed nor any formal order made.

    No objection was taken by the respondents to an appeal against the refusal by the trial judge to disqualify himself in Australian National Industries Ltd v Spedley Securities Ltd (In liq) (1992) 26 NSWLR 411. The majority appears to have distinguished Barton v Walker on the ground that in Spedley the trial judge formally refused a request to list before another judge the hearing of proceedings in which he had earlier made crucial findings as to credit in the course of interlocutory proceedings. In Gas and Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48, Gummow and Heerey JJ at 332 - 337 distinguished Barton v Walker on similar grounds as did Kirby P in Rajski v Wood, namely that the attack was on a formal order of the Court made in direct consequence of the trial judge's ruling as to apprehended bias.[20]

    [20]   At [109]-[113].

13. His Honour ultimately did not need to decide the issue, having found that the second order of the trial Judge dismissing a further application that the matter be heard before another judge did properly give rise to the appeal.  However, his Honour indicated that he would be hesitant, from a practical standpoint, in adopting the previously held position that a bare refusal to recuse could not provide a basis for an appeal. 

    Although it is not necessary to decide the point in this case, I would be concerned, where no formal order of the type made in this case were made, if form were to triumph over substance, resulting in the inability of an appellate court to rule on such a crucial issue before the commencement rather than at the end of a long trial. The law, in such a case, would be perceived to be no more than an ass.[21]

    [21] At [116].

14. However, Bleby J restated the conventional or received position some years later when considering a single judge appeal from a Magistrate’s refusal to recuse himself in Siewertsz Van Reesema v Police.[22] The statutory right of appeal to the Supreme Court conferred by section 42 of the Magistrates Court Act 1991 is in materially similar terms to section 43 of the District Court Act 1991.  In particular, the term “judgment” carries the same definition.  Bleby J said this.[23]

    [22] [2009] SASC 8 at [17]-[31].

    [23]   At [17]-[20], [26]-[29].

    Section 42 of the Magistrates Court Act 1991 (SA) creates a right of appeal against “any judgment” of a magistrate in a criminal action. “Judgment” is defined in s 3:

    judgment means a judgment, order or decision and includes an interlocutory judgment or order.

    Not all decisions made by a magistrate will fall within the definition of “judgment” for the purposes of s 42. It is necessary to distinguish between, on the one hand, interlocutory orders or judgments and, on the other hand, rulings made in the course of a trial. Rulings made in the course of a trial are not judgments and, thus, no appeal lies under s 42 of the Magistrates Court Act against such a ruling, even with leave.  If a litigant is dissatisfied with a ruling made in the course of a trial and is dissatisfied with the judgment at the conclusion of a trial, the only redress is to appeal against the judgment, alleging as a ground of appeal, the error in the ruling.

    The question of what constitutes a “judgment” or “order” was considered by the Full Court in Legal Practitioners Complaints Committee v A Practitioner.[24]  King CJ said:

    [24] (1987) 46 SASR 126.

    A judgment or order is a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings then before the court or judge.  The question decided may be the substantive question or one of the substantive questions raised in the action; or it may be the question or one of the questions raised in interlocutory proceedings taken in the course of the progress of the action.  Judgments and orders on the one hand are to be distinguished from incidental rulings given in the course of hearing and determining such questions.  Examples of such incidental rulings are those which relate to adjournments, the time and place of hearing, admissibility of evidence and the exclusion or otherwise of witnesses from the hearing, as well as decisions upon submissions as to matters of fact, law or procedure made during the course of a hearing.[25]

    Whether a decision is an incidental ruling or an order depends largely on the context in which the decision is made.[26]  It is therefore necessary to consider each of the decisions appealed against to determine whether each is an incidental ruling or an interlocutory judgment.

    .  .  .  .

    On 3 September 2007, the Magistrate disqualified himself from hearing the trial because he had heard the pre-trial matters.  Neither the respondent nor the appellant requested the Magistrate to disqualify himself.  The Magistrate elected to do so out of an abundance of caution.  However, on the day the trial was to begin, no other magistrate was available to hear the matter.  Rather than having the trial date lost, the Magistrate commenced to hear the matter.  At no stage since then has either party applied for the Magistrate to disqualify himself from hearing the trial.

    I therefore consider that there has been no decision at all from which it is possible to appeal.  The appeal in relation to this issue is incompetent.

    In any event, even if there had been a formal decision of the Magistrate not to disqualify himself, that would not constitute an interlocutory judgment or order.  It would be an incidental ruling given in the course of the hearing and could not be appealable at that stage.  In R v Watson; ex parte Armstrong[27] a majority of the High Court[28] held that a judge who continues to sit after having been asked to disqualify himself does not make a “decree, judgment or order”, and therefore no appeal lies until after final judgment.  That does not mean to say that, in an appropriate case, judicial review proceedings could not be brought at any time.

    The decision in Ebner v Official Trustee in Bankruptcy[29] confirms that the failure of a judge to recuse on the ground of apprehended bias can properly be the subject of an appeal against the final judgment delivered by the judge.

    [25]   At 127-128.

    [26]   Graziano v Graziano [2008] SASC 142 at [32].

    [27] (1976) 136 CLR 248, 266.

    [28]   Barwick CJ, Gibbs, Stephen and Mason JJ.

    [29] (2001) 205 CLR 337.

1. The judgments of Hodgson JA and Basten JA (with whose reasons Hodgson and Bell JJA agreed) in Lee v Cha & Ors[30] provide, with respect, a helpful explanation and summary of the conventional understanding.  Hodgson JA said this.[31]

   I agree that the weight of authority supports the view that, if all that happens is that, in the course of a trial, a judge is asked to disqualify himself or herself and declines to do so, there is no order from which an appeal can be brought.  In the case of tribunals apart from superior courts, however, an application can be made for an order in the nature of prohibition. 

   The grey area then is, what more is required for there to be an interlocutory order from which an appeal can be brought, subject to the grant of leave to appeal.  Would it be enough, for example, that there be a document filed in court seeking orders that the judge disqualify himself or herself, that the hearing be terminated, and that there be an order that the trial commence de novo before another judge; and that the application be dismissed, with an order that the applicant pay the costs of the application.  My tentative view is that there would then be an order from which leave to appeal could be sought. Would this still be the case if the application were dismissed with no order as to costs?  Perhaps so; although then the situation becomes very difficult to distinguish from a case such as the present, where to seek disqualification must by implication also involve seeking orders that the hearing be terminated and that the trial commence de novo before another judge. 

   Basten JA reviewed leading High Court and numerous intermediate courts of appeal authorities before explaining as follows.[32]

   The principle set out in the cases referred to above has been described as “well established”:  see Sir Anthony Mason, “Judicial disqualification for bias or apprehended bias and the problem of appellate review” (1998) 1 CLPR 21 at 22 (col 3).  Nevertheless, its foundations have not been uniformly respected.  The crack in the foundations, which tends to undermine the structure, is that a complaint of bias or apprehended bias may be relied upon as a ground of challenge in respect of any final or, significantly, any interlocutory order which is susceptible to appeal whether by leave or as of right:  see, eg, Raybos Australia, cited above at [18] (Priestley JA) approved in Rajski v Wood, cited above at [18], at 518D (Kirby P) and 523B-C (Priestley JA). Whether or not the bias or apprehended bias has affected the actual order, the challenge is allowed because it alleges that the court was not properly constituted for the purpose of making any order in the proceedings. Frequently consequential orders will be made which will engage a statutory provision conferring a right to appeal, usually by way of leave: see, eg, Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48 at 64 (Gummow and Heerey JJ, Davies J agreeing). Whether such an informal request, if rejected, can properly give rise to a costs order need not be considered: but if a costs order were made it would affect the interests of a party so as to be an order which may be the subject of an appeal.

   His Honour, after considering some other decisions, continued:[33]

   [30] [2008] NSWCA 13.

   [31]   At [2]-[3].

   [32] At [19].

   [33]   At [22]-[28].

   Some of these difficulties have been noted in other jurisdictions including in a careful judgment of the Full Court of the Supreme Court of South Australia in Southern Equities Corporation Ltd (In liq) v Bond (2000) 78 SASR 339 at [3]-[4] (Olsson J), [97]-[100] (Williams J) and [107]-[118] (Bleby J).

   If it were necessary to resolve in the present case whether an appeal was available, I would conclude that it was not.  The weight of authority in this Court clearly favours that proposition.  Even though it appears not to have been applied in Spedley, no member of the Court in that case suggested that Barton v Walker was wrong: to the contrary, the only members of the majority who referred to it either assumed or affirmed its correctness.

   The applicant sought to distinguish Barton v Walker (and associated authorities) on the basis that they were concerned with decisions in superior courts, whereas the present case concerned the District Court.  However, that point of distinction does not carry weight.  Each case was concerned with the meaning of the word “order” in statutory provisions permitting an appeal and no basis was demonstrated for suggesting that the word had a different meaning in the Supreme Court Act from that in the District Court Act. If inconvenience or anomalies were to be taken into account, the arguments in favour of a broader interpretation would be stronger in relation to the Supreme Court than the District Court. As the applicant accepted, jurisdiction to review the decision of a District Court judge may arise under s 69 of the Supreme Court Act by way of relief in the nature of prohibition.

   Finally, the applicant asserted that Barton, and its progeny, were wrong.  However, as already noted, Barton followed Ex parte Armstrong and it is not open to this Court to say that Armstrong was wrong.  As already stated, I do not consider that the reference in Armstrong to the unavailability of an appeal was an inessential comment, nor would I disregard it if I thought it were.  That problem aside, there are a number of factors which would need to be addressed before this Court overturned its earlier line of authority, none of which were addressed in argument.

   The only basis upon which this Court might properly not apply the principle set out in Ex parte Armstrong would be because it was concerned with the exercise of judicial power under Chapter III of the Constitution. There is authority for the proposition that such an order will not arise unless it is “decisive of the rights of the parties”: see Yule v Junek (1978) 139 CLR 1 at 14 (Mason J) and see Mellifont v Attorney-General (Queensland) (1991) 173 CLR 289 at 300 and the authorities at fn (30) (Mason CJ, Deane, Dawson, Gaudron and McHugh JJ). A broader view might be taken of the nature of a curial order, where it affects the constitution of the relevant tribunal under a State law, but there is no support for that view in the authorities: see Moller v Roy (1975) 132 CLR 622 at 639 (Mason J); Ah Toy v Registrar of Companies (1985) 10 FCR 280 at 285-286 (Toohey, Morling and Wilcox JJ). There are many kinds of interlocutory rulings which are not appealable judgments or orders: see The Commonwealth v Mullane (1961) 106 CLR 166 at 169. A ruling that evidence is admissible is not appealable: see generally Bozatsis & Spanakakis (1997) 97 A Crim R 296 at 303 (Gleeson CJ, Meagher JA and Bruce J agreeing); Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (NSWCA 20 May 1996, unreported) (Mahoney P, Meagher and Cole JJA agreeing) applied by Buchanan J in Lawrance v The Commonwealth [2007] FCA 1524: indeed in Hall v Braybrook (1956) 95 CLR 620 at 635, Dixon CJ said that “a magistrate’s ruling that evidence is to be admitted or rejected cannot itself constitute an ‘order’ that may be reviewed … though of course if erroneous it may be a ground for reviewing a determination affected by it”. See also Legal Practitioners’ Complaints Committee v A Practitioner (1987) 46 SASR 126 at 127 (King CJ) applied by Spigelman CJ in Johnston v Nationwide News Pty Ltd [2005] NSWCA 17; (2005) 62 NSWLR 309 at [30], and see Rich v Australian Securities and Investments Commission [2005] NSWCA 233; (2005) 54 ACSR 365 at [6] and at [21]-[25]. No argument having been addressed to these matters, they need not be taken further.

   It remains to note that if it were thought, contrary to the foregoing reasoning, that an appeal was available, it would be necessary to consider whether there should be a grant of leave.  That question need not be considered, but, conformably with the factors set out below, there would be serious doubts about whether leave should be granted.

   Jurisdiction: ‘prerogative relief’

   There is no doubt that this Court has power to restrain the trial judge from continuing with the proceedings, by making an order in the nature of prohibition pursuant to s 69 of the Supreme Court Act, if a proper basis for the exercise of that power is made out.  As exemplified by Ex parte Armstrong, a basis for granting relief would be the demonstration that her Honour was biased or that there was a reasonable apprehension that she might not bring an unbiased mind to the resolution of issues in the proceedings.  The applicant did not contend that the material to be discussed below established actual bias, but rather said that statements made by her Honour in the course of the proceedings might cause a fair-minded observer to entertain a reasonable apprehension of pre-judgment in relation to evidence yet to be given by Mr Park.  However, relief in such a case is discretionary and there are a number of factors to be considered in determining whether an order in the nature of prohibition should be made in the present case:  see discussion of general law principles in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [43]-[60] (Gaudron and Gummow JJ).

2. To this point, I would be constrained by authority and, in my view principle, to find the appeal against the Judge’s bare refusal to recuse himself to be incompetent. I say as a matter of principle because in my view the terms of the right of appeal under section 43 of the District Court Act are in materially the same terms as those considered in the authorities referred to above. In this respect, I do not think that the presence of the word “decision” in the definition of “judgment” in section 3 of the District Court Act makes any difference.  With respect I agree with the view expressed by Bleby J in Siewertsz[34] set out above and the well accepted, and often adopted in this Court, statement of principle by King CJ in Legal Practitioners Complaints Committee v A Practitioner[35] included in the quote from Bleby J set out above.

   [34]   At [17]-[19].

   [35] (1987) 46 SASR 126 at 127-128.

3. The High Court has recently, again, considered this competency question in Michael Wilson & Partners v Nicholls.[36]  The issue arose in that case in a slightly different context. The respondents had brought two unsuccessful applications for the trial Judge to disqualify himself from the trial but did not seek to challenge the rulings before the final judgment was entered.  A question for the High Court was whether the respondents had waived any right to appeal on this ground by not seeking leave to appeal immediately following the rejection of the applications.  Inherent in that question was the issue of whether such a right of appeal would have been competent in any event. 

   [36] [2011] HCA 48; (2011) 244 CLR 427.

4. The plurality[37] found, on the facts, that there had not been a reasonable apprehension of bias and that, therefore, the issue of whether an appeal would lie did not need to be decided. Nonetheless, the plurality went on to make the following observations.

   In most cases, a judge's refusal of an application that the judge not try, or continue to try, a case on account of reasonable apprehension of bias will constitute a final determination by the judge that the facts and circumstances relied on by the applicant do not establish the relevant apprehension. In such a case, it may be that an applicant who does not seek to challenge the refusal by seeking leave to appeal should be held to have given up the point.

   In this case, if the respondents were right in asserting that there was a reasonable apprehension of bias, the whole of the trial with its attendant expense and use of court time would be wasted. Of course it must be recognised that the respondents in this case had no right to appeal against the refusal of Einstein J to recuse himself. But the respondents did have a right to seek leave to appeal.

   As was explained in Gas & Fuel Corporation Superannuation Fund v Saunders,[38] a later interlocutory order made by a judge who has refused an application that the judge not hear the matter on account of a reasonable apprehension of bias is an order against which leave to appeal can be sought on the ground that the judge who made the order should not have done so. Conversely, as Saunders itself illustrates, where a judge allows an application for disqualification and makes orders effecting that decision,[39] leave to appeal can be sought against those orders on the ground that they should not have been made. Thus the order against which the respondents could have sought leave to appeal in this case was whatever order was made by Einstein J after he had refused to recuse himself. If, as the respondents asserted, Einstein J should not have continued to sit in the matter, whatever order was made (other than an order adjourning the case for the purpose of allowing another judge to deal with it) was an order which should not have been made by the judge who made it and would found an application for leave to appeal. And as it happened Einstein J made such an order on 4 June 2009 when he set dates for compliance with the general requirements for trial of proceedings in the Equity Division.

   In so far as Barton v Walker[40] holds to the contrary, that decision should not be followed. The decision in Barton v Walker depended upon the proposition that whether a judge should continue to hear a case was a matter only for the judge concerned and that a motion that the judge disqualify himself or herself was "not cognizable";[41] the judge was held[42] to make no order on the application for disqualification.

   The decisions about apprehension of bias that have been given by this Court since Barton v Walker show that a judge's decision to grant or refuse an application for disqualification is not a matter only for the particular judge. As was pointed out[43] in the plurality reasons in Ebner, the apprehension of bias principle has its roots in principles fundamental to the common law system of adversarial trial.

   Whether failure to seek leave to appeal against refusal of an application that a judge not try the case on account of a reasonable apprehension of bias precluded maintenance of the complaint in an appeal against the final judgment would require consideration of whether the failure to seek that leave was reasonable. That would require examination of all relevant circumstances. Ordinarily those would include the stage the proceedings had reached when the disqualification application was made and refused and the consequences that would follow from leaving appellate determination of the issue of disqualification until after trial. In this case, trial was fixed to begin within a very short time after the refusal. How much time and money would be spent if the question were to be left over to an appeal against final judgment? The trial of this matter was expected to be very long. A lot of time and money would have been wasted if the judge who tried the proceedings should not have done so.

   If it was reasonable in the circumstances of the particular case not to seek leave, and there was no other basis upon which a choice not to persist with the allegation of apprehended bias can be identified as having been made (either then or at some later time), the point would remain open in an appeal against the final judgment. But if it was reasonable in the circumstances to seek leave, and leave was not sought, why should it not be concluded, absent countervailing considerations, that the party making the complaint did not maintain the objection? Simply saying to the opposite party that it is sought to preserve the point for consideration in an appeal against final judgment would not of itself be effective to achieve that result.

   As explained earlier these points need not be decided. It is, however, important to add, contrary to what was said in the Court of Appeal,[44] that an application for leave to appeal against the rejection of an application that a judge not hear a matter due to apprehended bias may well be a case where the usual criteria[45] would require leave to be granted, at least if a long and costly trial would be wasted if the judge's decision were incorrect.[46]

   [37]   Gummow ACJ, Hayne, Crennan and Bell JJ.

   [38] (1994) 52 FCR 48 at 64 per Gummow and Heerey JJ. See also Brooks v The Upjohn Company (1998) 85 FCR 469 at 475-476.

   [39]   Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48 at 58.

   [40] [1979] 2 NSWLR 740.

   [41] [1979] 2 NSWLR 740 at 750. See also R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 266 per Barwick CJ, Gibbs, Stephen and Mason JJ; Rajski v Wood (1989) 18 NSWLR 512; Australian National Industries Ltd v Spedley Securities Ltd (In liq) (1992) 26 NSWLR 411.

   [42] [1979] 2 NSWLR 740 at 751.

   [43] [2000] HCA 63; (2000) 205 CLR 337 at 343-345 [3]- [7].

   [44] [2010] NSWCA 222; (2010) 243 FLR 177 at 197 [77] per Basten JA.

   [45]   Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39; Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 485-486 [13].

   [46]   At [79]-[86] per Gummow ACJ, Hayne, Crennan and Bell JJ.

5. The observations of the majority in Michael Wilson were subsequently considered by Basten JA in Barakat v Goritsas.[47]  The applicant in that case contended that the High Court decision in Michael Wilson was now authority for the proposition that a judge’s bare refusal to recuse himself or herself was appellable.  Basten JA rejected that argument.   His Honour took the view that the established line of authority that required the identification of an appellable (with or without leave) interlocutory order, apart from the refusal to recuse, had been undisturbed by the plurality in Michael Wilson. 

   This contention had, however, a second limb, namely that the subject matter of the proposed appeal could be the decision of the primary judge to reject the recusal application. The applicant submitted that the plurality in Michael Wilson & Partners had sanctioned such a course. That submission was based upon two passages in the judgment, each of which was, concededly, part of the obiter discussion in relation to waiver. Thus, at [84], their Honours referred to a "failure to seek leave to appeal against refusal of an application that a judge not try the case on account of a reasonable apprehension of bias". There was also reference to "an application for leave to appeal against the rejection of an application that a judge not hear a matter due to apprehended bias": at [86]. The applicants also referred to the reference in Brooks v The Upjohn Company (1998) 85 FCR 469 at 475, in the judgment of Beaumont, Carr and Branson JJ, to the "somewhat artificial device of fastening on" interlocutory orders, other than the refusal to recuse, to provide the subject-matter of an appeal.

   The step said to have been taken by the High Court in these passages is no doubt one which could be taken by that Court. However, the passages in which the statements quoted appear were directed to other issues and bear the hallmarks of concise, if elliptical references, to an application for leave to appeal based on the ground of the refusal to recuse. The express reference to both Gas & Fuel Corporation and to Brooks, in the same passage in the joint judgment, together with the affirmation set out at [13] above of the approach adopted in Gas & Fuel Corporation, is inconsistent with some implicit rejection of the need to identify an interlocutory order, other than the refusal to recuse, to form the basis of an application for leave to appeal. At best, the applicant's submission involves an uncertain inference: that is an insufficient basis for departing from an established line of authority in courts of appeal in this country, including not merely the two judgments just referred to, but also Rajski v Wood (1989) 18 NSWLR 512 at 518 (Kirby P), 527 (Hope AJA) (Priestley JA agree with both) and Witness v Marsden [2000] NSWCA 52; 49 NSWLR 429 at [96] (Heydon JA, Mason P agreeing). A single judge of this Court should continue to follow the overwhelming weight of appellate authority in the absence of any clear statement by the High Court to the contrary.[48]

   [47] [2012] NSWCA 8. Basten JA sat as a single Judge to determine an application for a stay of Common Law Division proceedings pending consideration of an application for leave to appeal against a Judge’s refusal to disqualify himself from hearing the Common Law Proceedings.

   [48]   At [15]-[16].

1. I agree with Basten JA.  By way of supplementing the reasons his Honour has given for rejecting the contention that Michael Wilson stands for the proposition that a bare refusal to recuse is directly appellable, I add the following.

2. In my view, the key to understanding the plurality’s position is in the second and third paragraphs extracted above.[49]  In the third paragraph, the plurality states the conventional position that it was always open to the respondents to appeal against a subsequent interlocutory decision by the trial judge with apprehended bias as a ground.  The plurality helpfully identifies such an order that would have been available on the facts of the case. 

   [49]   Paragraphs [80] and [81] of the judgment.

3. My first observation is that it was unnecessary for the plurality to have engaged in this excursis, if the intention was simply to sweep away Barton v Walker and, in effect, the earlier High Court pronouncement in Watson; Ex parte Armstrong and to render a bare refusal to recuse appellable. 

4. A second observation is that this third paragraph excursis appears to come as an amplification of the relatively bald statements in the last two sentences of the immediately preceding (second) paragraph.

   Of course it must be recognised that the respondents in this case had no right to appeal against the refusal of Einstein J to recuse himself.  But the respondents did have a right to seek leave to appeal. (My emphasis).

   I do not read that last sentence as referring to a right to seek leave to appeal against the refusal to recuse.  I do not see how the fact that there might only be a right to seek leave to appeal against a refusal to recuse (rather than an absolute right of appeal) would be particularly important to the question of principle whether such an appeal, itself, is competent.

5. These two sentences are to be read in the context of the plurality’s consideration of whether, on the facts of this case, there might have been a waiver.  The first sentence states, without express qualification, the conventional position – the respondents had no right to appeal against the refusal to recuse.  The second sentence also states, without express qualification, the conventional position – the respondents had (on the facts) a right to seek leave to appeal.  The third paragraph then explains why and how, on the facts, this right to seek leave to appeal against an interlocutory order arose, so as to provide opportunity for a collateral attack on the refusal to recuse.

6. My third observation is that, ordinarily, one would expect an exploration of the principles underlying the conventional position that a bare refusal to recuse is not amenable to appeal.  Indeed, and this is the fourth observation, no consideration is given to Watson; Ex parte Armstrong in this context.  Rather, and of all of the many intermediate courts of appeal authorities that have adopted and sought to justify the conventional position, the plurality raised a concern only with Barton v Walker – “Insofar as Barton v Walker holds to the contrary, that decision should not be followed”.

7. Context is important and this is my final point.  The observation concerning Barton v Walker comes immediately after the third paragraph in which the plurality explains how a collateral attack was available on the facts of this case.  When the plurality raised the concern that Barton v Walker might hold to the contrary, it arguably was concerned that Barton v Walker might be understood as challenging even the justiciability of the collateral attack.  Samuels JA referred to a bare refusal to recuse as being a matter that is not “cognisable”.[50]  If Barton v Walker were seen to preclude even a collateral attack, it would go further than other leading authorities and be inconsistent with the accepted position that an interlocutory judgment or order can be challenged on the basis that the judge making it had lacked power to do so.

   [50]   Barton v Walker at 750 and see the extended discussion at 749-750.

8. By way of conclusion to this point, I agree with the respondent’s submission that no appeal lies from the Judge’s dismissal of the appellant’s application to recuse himself on the basis of apprehended bias.  I am unable to find a clear indication by the plurality in Michael Wilson to the effect that a bare refusal of a recusal application can form the basis of an appeal.  The weight of authority remains against that proposition.  The appeal is incompetent to this extent.

9. However, there remains the question of whether any further order was made by the Judge from which an appeal could be pursued.

10. As already discussed, where a ruling on a recusal application is followed by an order or judgment affecting the rights of the parties to a proceeding, an appeal may be brought in relation to that subsequent order or judgment (subject to any permission requirement).  Such an appeal may raise any alleged inappropriate recusal or failure to recuse as a ground of appeal.[51]

    [51]   Michael Wilson & Partners v Nicholls [2011] HCA 48, (2011) 244 CLR 427 at [81]; Gas and Fuel Corporation Superannuation Fun & Ors v Saunders & Anor [1994] FCA 1237, (1994) 52 FCR 48, 64; Barton v Walker [1979] 2 NSWLR 740, 755; Barakat v Goritsas [2012] NSWCA 8, at [10] and [13].

11. In this case the appellant contends that the Judge’s overnight adjournment of the trial constitutes an interlocutory order from which an appeal can be brought. The respondent, on the other hand, submits that the adjournment was not an order but rather an incidental ruling given by the Judge in the course of hearing the matter.

12. In Legal Practitioners Complaints Committee v A Practitioner,[52] King CJ considered the nature of the right to appeal from a judgment given by a single Judge of the Supreme Court conferred by section 50 of the Supreme Court Act 1935. In section 50, “judgment” is defined to include “an order or direction; and a decision not to make an order or direction”. His Honour found that the word “direction”, in this context, added nothing to “judgment” or “order”. His Honour provided an explanation of the distinction between (appellable) judgments or orders made by a judicial officer and (non-appellable) incidental rulings given in the course of proceedings. The relevant quote is set out above in the passage taken from Bleby J’s judgment in Siewertz.  However, it bears repeating in this context.

    A judgment or order is a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings then before the court or judge. The question decided may be the substantive question or one of the substantive questions raised in the action; or it may be the question or one of the questions raised in interlocutory proceedings taken in the course of the progress of the action. Judgments and orders on the one hand are to be distinguished from incidental rulings given in the course of hearing and determining such questions. Examples of such incidental rulings are those which relate to adjournments, the time and place of hearing, admissibility of evidence and the exclusion or otherwise of witnesses from the hearing, as well as decisions upon submissions as to matters of fact law or procedure made during the course of a hearing. Such incidental rulings are not judgments or orders and are therefore not appealable even by leave.[53]

    [52] (1987) 46 SASR 126.

    [53]   At 127.

13. The overnight adjournment by the Judge in this case falls squarely within an incidental ruling as opposed to an appellable judgment or order. Again (see earlier), I do not think that the presence of the word “decision” in the definition of “judgment” in section 3 of the District Court Act is material in this respect.  The Judge’s decision to adjourn was not an interlocutory order from which an appeal may lie.  To this extent, also, the appeal is incompetent.

14. The respondent is entitled to an order on his interlocutory application that the appeal be summarily dismissed.  However, it may be that after the matter is returned to the District Court for the hearing to be continued before the Judge, a right to appeal might arise should the Judge come to make an appropriate interlocutory judgment or order.  Alternatively, the possibility of judicial review proceedings being instituted remains.  In either case the appellant might seek to re-agitate the question of the failure to recuse.  I express no view as to the availability or likelihood of either possibility. 

15. In these circumstances and, in any event, out of deference to both counsel’s detailed submissions with respect to the merits and to the possibility that this matter might go further, I will say something about the merits of the appeal notwithstanding its incompetency.

    The test for apprehended bias and merits of this appeal

16. The well established test for determining whether a judge should disqualify himself on the basis of an apprehension of bias is that of the fair-minded lay observer, as explained by the plurality in the High Court decision of Johnson v Johnson:[54]

    It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether 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.[55]  

    That test has been adopted, in preference to a differently expressed test that has been applied in England,[56] for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done.[57] It is based upon the need for public confidence in the administration of justice. "If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision."[58] The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial".[59]

    [54] [2000] HCA 48; (2000) 201 CLR 488 at [11]-[12] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

    [55]   eg Re Lusink; Ex parte Shaw (1980) 55 ALJR 12, 32 ALR 47; Livesey v New South Wales Bar Association [1983] HCA 17, (1983) 151 CLR 288; Vakauta v Kelly [1989] HCA 44, (1989) 167 CLR 568; Webb v The Queen [1994] HCA 30, (1994) 181 CLR 41.

    [56]   cf Locabail (UK) Ltd v Bayfield Properties Ltd [1999] EWCA Civ 3004, [2000] QB 451.

    [57]   cf R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259 per Lord Hewart CJ.

    [58]   R v Watson; Ex parte Armstrong [1976] HCA 39, (1976) 136 CLR 248 at 263 per Barwick CJ, Gibbs, Stephen and Mason JJ.

    [59]  Vakauta v Kelly (1988) 13 NSWLR 502 at 527 per McHugh JA, adopted in [1989] HCA 44, (1989) 167 CLR 568 at 584-585 per Toohey J.

17. The approach outlined in Johnson was subsequently endorsed by the High Court in the case of Ebner v Official Trustee in Bankruptcy.[60]

    Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.[61] That principle gives effect to the requirement that justice should both be done and be seen to be done,[62] a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

    [60] [2000] HCA 63; (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

    [61]   R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568; Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41; Johnson v Johnson [2000] HCA 48, (2000) 74 ALJR 1380, 174 ALR 655.

    [62]   R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259 per Lord Hewart CJ.

18. The test is an objective one, with the question of whether an apprehension of bias might exist to be answered by reference to the views of the fictitious fair-minded observer acting reasonably.  The objective nature of the test has been consistently affirmed by the High Court on a number of occasions,[63] most recently by the plurality in Michael Wilson.[64]

    [63]   Johnson v Johnson (2000) 201 CLR 488, [2000] HCA 48; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [2000] HCA 63; Smits v Roach (2006) 227 CLR 423, [2006] HCA 36; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577, [2006] HCA 55; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283, [2011] HCA 2.

    [64]   See Michael Wilson & Partners v Nicholls [2011] HCA 48, (2011) 244 CLR 427 at [31]-[33] (Gummow ACJ, Hayne, Crennan and Bell JJ).

19. Notwithstanding this established line of authority, the appellant submits that in applying the test regard can also be had to the subjective views of the party who raises the concern, that is, the court must also consider whether the party to the proceedings holds a reasonable apprehension of bias.  To this end, the appellant relies on the cases of Livesey v The New South Wales Bar Association[65] and Vakauta v Kelly.[66]

    [65] [1983] HCA 17, (1983) 151 CLR 288 at [7].

    [66] [1989] HCA 44, (1989) 167 CLR 568 at [5] (Dawson J). The plurality in Vakauta (Brennan, Deane and Gaudron JJ) focussed on the “reasonable and intelligent lay observer”, at [7].

20. In Livesey the Court said this.[67]

    It was common ground between the parties to the present appeal that the principle to be applied in a case such as the present is that laid down in the majority judgment in Reg. v. Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, at pp 258-263 . That principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it. That principle has subsequently been applied in this Court (see, e.g., Re Judge Leckie; Ex parte Felman (1977) 52 ALJR 155, at p 158 ; Reg. v. Shaw; Ex parte Shaw (1980) 55 ALJR 12, at pp 14, 16 ) and in the Supreme Court of New South Wales (see, e.g., Barton v. Walker (1979) 2 NSWLR 740, at pp 748-749 . Although statements of the principle commonly speak of "suspicion of bias", we prefer to avoid the use of that phrase because it sometimes conveys unintended nuances of meaning. (at p294)

    [67]   At [7] (Mason, Murphy, Brennan, Deane and Dawson JJ).

21. I doubt, notwithstanding the references to “a party” in Livesey and Vakauta, that the test for reasonable apprehension of bias can, at the practical level, include the subjective views of a party involved, informed by their personal circumstances. It is difficult to imagine the logical application of such a test.  A judge will find it very difficult to acquire a sufficient understanding of the singular personality or disposition of a litigant so as to gauge whether bias has reasonably (within their frame of reference) been apprehended.  Further, the issue is one of the public having confidence in the administration of justice.  The question of recusal should not be hostage to, for example, the concerns of a particularly nervous and anxious party who may be quite inexperienced with and have no understanding of the litigation process.  Such a litigant may not properly appreciate the role of the judge which can include robust but fair testing of the submissions and evidence put forward and robust but fair trial management, all in the community interest of case flow management and public use of court resources and in the interest of all parties in having the dispute resolved quickly, efficiently and without undue cost.  Such a litigant may have no real appreciation of the training and expectation (given the judicial oath or affirmation) of judges to act fairly and not to prejudge a matter even though they may from time to time, arguendo, express firmly negative views about a party’s case. 

22. However, whether or not I am right in this respect, in my view the test is now that reflected in the recent High Court authorities of Johnson, Ebner, Michael Wilson and British American Tobacco Australian Services Ltd v Laurie.[68]  I proceed, therefore, on the basis that the test to be employed is an objective one, by reference to the apprehensions of the fair-minded lay observer acting reasonably.

    [68] [2011] HCA 2.

23. In Laurie, French CJ[69] adopted the fair-minded observer test as formulated in Ebner.  Gummow J described the proper approach in the following way.[70]

    To that perception of the role of the hypothetical observer must be added the consideration that "the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party". The words are those of Mason J in Re JRL; Ex parte CJL, in a passage adopted by Callinan J in Johnson v Johnson. Mason J also said in that passage, using words later said by the English Court of Appeal to have "great persuasive force", and adopted by the New Zealand Court of Appeal:

    "In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be 'firmly established': Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. 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."

    The references in JRL to the phrase "firmly established" in the joint reasons of all seven Justices of this Court in Angliss and to the subsequent authorities is important. BATAS presented its argument to Judge Curtis and to this Court on the false footing that "the threshold of apprehended bias is very low". For that proposition BATAS relied upon a remark by Spigelman CJ in McGovern v Ku-Ring-Gai Council. However, the expression "low threshold" was immediately qualified by the statement that "an issue of some specificity" is presented in the identification of that which is said to constitute lack of "impartiality" or "prejudice". Nevertheless, references to thresholds in this context are apt to distract attention from the force of what was said by Mason J in JRL and should not be made.

    The observation by Mason J in Johnson, quoted by Gummow J above, to the effect that a request to recuse ought not be too readily allowed for the reasons given, is a very important reminder to all judicial officers. 

    [69]   At [37], [50].

    [70]   At [71]-[72] (citations omitted).

1. In Laurie, the plurality[71] approached the matter in this way.

   It is fundamental to the administration of justice that the judge be neutral. It is for this reason that the appearance of departure from neutrality is a ground of disqualification. Because the rule is concerned with the appearance of bias, and not the actuality, it is the perception of the hypothetical observer that provides the yardstick. It is the public's perception of neutrality with which the rule is concerned. In Livesey it was recognised that the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case. It is a recognition of human nature.

   Of course judges are equipped by training, experience and their oath or affirmation to decide factual contests solely on the material that is in evidence. Trial judges are frequently required to make rulings excluding irrelevant and prejudicial material from evidence. Routine rulings of this nature are unlikely to disqualify the judge from further hearing the proceeding. This is not a case of that kind. It does not raise considerations of case management and the active role of the judge in the identification of issues with which Johnson was concerned. At issue is not the incautious remark or expression of a tentative opinion but the impression reasonably conveyed to the fair-minded lay observer who knows that Judge Curtis has found that BATAS engaged in fraud and who has read his Honour's reasons for that finding. Some further reference should be made to those reasons.

   [71]   Heydon, Kiefel and Bell JJ at [139]-[140] (citations omitted).

2. In Michael Wilson, the plurality[72] stated the following as being the relevant law.

   It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (in this case, in the form of prejudgment) is whether 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. No party to the present appeal sought in this Court, or in the courts below, to challenge that this was the test to be applied.

   As the plurality in Johnson v Johnson explained, "[t]he hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues."

   Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias. The respondents did not submit in this Court or in the courts below that the trial judge had in fact prejudged any issue.

   [72]   Gummow ACJ, Hayne, Crennan and Bell JJ at [31]-[33] (citations omitted).

3. The test to be applied, as articulated in Ebner v Official Trustee in Bankruptcy,[73] entails a two-step inquiry.  The first step is to identify what was said by the trial Judge which is alleged to have created a reasonable apprehension of bias.  The second step is to identify the logical connection between what was said and the “feared deviation from the course of deciding the case on its merits.”

   [73] [2000] HCA 63; (2000) 205 CLR 337 at [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

4. The relevant verbal interactions between the Judge and Mr Heywood-Smith are set out earlier in these reasons.  The crux of the appellant’s complaint is that the Judge behaved so as to cause an apprehension that he had prejudged certain issues, including the level of damages to which the appellant might become entitled and as to whether or not the remarks complained of were in fact defamatory.  Further, the manner in which the trial Judge expressed himself suggested that he was unsympathetic to the appellant’s claim and did not believe that she should have embarked on seeking redress through the courts.

5. In Johnson, the High Court specifically addressed the function and utility of the interactions between bench and counsel that take place during a matter, and how such interactions are to be received by the fictitious observer in terms of the test for a reasonable apprehension of bias.

   Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge,[74] the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly[75] Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case."[76] Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.[77]

   The majority went on to note that certain statements or behaviour suggestive of bias may be cured by later statements to the contrary, whilst others may not be curable.[78]

   [74]   Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 73 per Deane J.

   [75] [1989] HCA 44; (1989) 167 CLR 568 at 571.

   [76]   See also Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 at 15 per Murphy J; 32 ALR 47 at 53.

   [77] [2000] HCA 48; (2000) 201 CLR 488 at [13].

   [78] At [14].

6. However, as noted by Kirby J in Antoun v The Queen,[79] the boundary between acceptable engagements with counsel and conduct that is indicative of prejudgment and bias, can at times be difficult to determine.

   [79] [2006] HCA 2; (2006) 224 ALR 51; 80 ALJR 497 at [29].

7. In a case such as the present, any reasonable apprehension of bias must be “firmly established” in the sense explained in BATAS v Laurie by French CJ.[80]

   The fact that a judge has expressed a strongly worded view at the outset of a hearing does not prevent characterisation of that view as provisional. In such a case the reasonable apprehension of bias must be "firmly established" before prohibition will issue. Sometimes the line of judgment is "ill-defined". On the other hand, a gratuitous statement in a judgment given in one case adverse to a person not involved in that case against whom a prosecution was pending, was sufficient to disqualify the judge who made the statement from sitting on an appeal arising out of the prosecution.

   The scrutiny required of claims of bias based on prior findings by a decision-maker was emphasised, in relation to administrative decisions, by Gaudron and McHugh JJ in Laws v Australian Broadcasting Tribunal. Their Honours, after referring to R v Australian Stevedoring Industry Board, Angliss and Shaw, said:

   "When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her." (emphasis added)

   The requirement that an apprehension of bias, based on judicial conduct, be "firmly established" is consistent with the most recent decisions of this Court and gives content to the requirement that an apprehension of bias, in that class of case, be reasonable.

   [80] [2011] HCA 2 at [44]-[45] (citations omitted). The added emphasis is that of French CJ.

8. In my view, the knowledge that ought to be attributed to the fair-minded lay observer in this case included:

   (i)knowledge of the factual nature of the pleaded claim and the pleaded defence including the relatively confined (within close family) nature of the publication alleged;

   (ii)knowledge that there was no claim for economic loss;

   (iii)knowledge that the dispute essentially concerned hurtful and allegedly defamatory things said by a mature age brother to the adult son of the brother’s mature age sister (and to the son’s wife) concerning things said to have taken place many years ago;

   (iv)knowledge that defamation proceedings in the District Court can be financially costly and a drain on the time and emotional resources of both parties;

   (v)knowledge that the appellant was “not seeking a large sum of damages, indeed to the contrary” as indicated by her counsel during the exchanges with the Judge but, by implication at least, was seeking vindication for her hurt feelings and damage to reputation, by way of a Court order;

   (vi)knowledge that modern judges legitimately play a role in encouraging parties to a civil action to settle, particularly, having regard to the costs and time involved should the litigation proceed to a conclusion by way of judgment and perhaps on appeal; and

   (vii)knowledge that trial judges in our system have promised by judicial oath or affirmation and are trained and experienced to come to an objective independent decision on the evidence without bias or prejudgment.

9. Ultimately the central question of fact here is one of judgment and degree.  I am not satisfied that a conclusion that the Judge’s intimations were of a nature such that a fair-minded lay observer might reasonably apprehend he had already made up his mind on any issue and had departed from impartial and unprejudiced decision-making has been firmly established.

10. At the time of engaging with Mr Heywood-Smith on both 30 October 2014 and 3 November 2014, the Judge qualified his remarks, a number of times, with the caveat that they were merely tentative.  This can be seen in the italicised parts of the passages set out earlier.  The Judge was indicating preliminary concerns or positions, but there is no suggestion from the transcript that he had closed his mind as to the underlying merits of the claim before him.  Indeed, to the contrary, he stated that he was open to persuasion by the evidence and by counsel. 

11. As was discussed by the plurality in Johnson, it is often the case that counsel can benefit from hearing such preliminary views.  They provide the opportunity to address a judge’s concerns directly and early.  Mr Heywood-Smith indicated as much following the Judge’s opening remarks on the morning of the trial on 3 November, when he replied with “No, I’m grateful for your Honour’s intimation, it enables me to concentrate on those issues in opening”.  

12. If one were to leave the bare text of the transcript and have regard to the appellant’s and her solicitor’s observations in their affidavits, it is open to form the impression that the Judge was conveying his preliminary views robustly and forcefully.  As a matter of principle, I have reservations as to the utility of such affidavit evidence.  It has an obvious capacity to be self-serving.  The problems it can present will be exacerbated if contradictory affidavit evidence were to be forthcoming from the other party and/or their solicitor - “I perceived the Judge to be angry and, by inference, so would a fair-minded lay observer” countered with “I did not perceive the Judge to be angry, etc etc.”  How is such a contest to be resolved other than by a potentially unproductive process of cross-examination and determination of witness credit and reliability concerning their descriptions of a judge’s behaviour?  How is the judge, who hears an application to recuse himself or herself, to deal with this contest in an impartial way when, presumably, he or she knows whether they were or were not angry?  A number of the potential concerns are helpfully canvassed by the Full Court in The Queen v Joyce.[81]  Their Honours’ judgment contains the following passage by way of conclusion to a quite lengthy discussion of the problem.[82]

    We will add two things.  First, it can only be in an extremely rare and unusual case that such evidence would be admissible.  We ourselves can hardly conceive of a case where gesture, tone, and emphasis can add so much to the words as to produce a different legal consequence from the words by themselves.  It is obviously undesirable that questions like this should be canvassed if they can be avoided.  The learned Judge could not be expected to give, nor indeed do we think he could have given, evidence before this Court about his tone, his emphasis, his smile or his shrugs, if such they were.  If a dispute as to the facts cannot be resolved, ultimately reliance must be placed on the written word of the transcript.

    I recognise that TheQueen v Joyce might be distinguishable.  Where a judge sums up a criminal trial, the jury will be told that the judge’s own opinions on the facts (expressed or to be inferred) are not determinative and that the facts are entirely a matter for the jury.  Whereas, in a case like the present, the apparent opinions of the Judge as intimated are a central feature of the factual enquiry.

    [81] [1970] SASR 184 at 196-198 (Bray CJ, Walters and Zelling JJ). Special leave to appeal to the High Court was refused, [1970] ALJR 360.

    [82]   Affidavits concerning the demeanour, tone and actions of a judge during a criminal jury summing up were under consideration.

13. For the purposes of this appeal, affidavit evidence relied on by the appellant was before the Judge and is before me, according to its terms, and in a context where the countervailing affidavit evidence proposed on behalf of the respondent is not.  This evidence does not cause me to alter my view.  There is a difference between a judge who has formed a view that a matter should have settled long ago and who robustly, even impatiently and irritatedly, suggests reasons why it should settle on the day of trial and a judge who has prejudged the outcome.  The former does not necessarily presage the latter.  The emboldened parts of the passages set out earlier show that the Judge here was focussed on achieving a resolution of the dispute, if possible.  A fair-minded, lay observer would have understood that it was this that motivated the Judge’s remarks rather than the fact that he held a prejudgment. 

14. The original application for recusal, made orally by Mr Heywood-Smith, centred upon the Judge’s comment that it was the appellant who had initiated the proceedings.  It was contended that this and the related remarks were made without knowledge as to the matters that had preceded the issue of the proceedings and were said in an argumentative, aggressive and accusatory manner that indicated the Judge had no empathy for the appellant’s claim and perceived it as frivolous. 

15. I will leave aside, for one moment, the demeanour of the Judge at the time.  When viewed in context, the Judge’s remarks on this topic can be seen as an understandable response to Mr Heywood-Smith’s submission that “unfortunately [the appellant] has been brought to this court and is obliged to proceed” (my emphasis).  Regardless of whether or not the appellant was, in fact, subjected to defamatory remarks by the respondent, it was always her choice to bring proceedings in the District Court.  She was, of course, perfectly entitled to do so and the Judge’s remarks are not to be read as challenging this entitlement.  The Judge’s retort, whilst blunt, was accurate, and would not, to my mind, have created a reasonable apprehension of bias in any fair-minded, lay observer.

16. As indicated, the appellant relies on affidavit material deposing to the Judge’s demeanour and tone when remarking that it was she who had initiated proceedings.  The dispositions and approaches of members of the judiciary will vary and sometimes quite considerably.  Some judges may demonstrate, from time to time, a proclivity for forthright engagement with counsel and sometimes with impatience or even aggressively.  Others may be more reserved in their interactions.  It is not to be suggested that the former group of judges cannot be trusted to stay out of the arena and maintain objectivity.  A fair-minded, lay observer would be fully cognisant of the fact that some judges may be more forthright than others in expressing preliminary views.    

17. My reading of the transcript in this matter is that this Judge was keenly of the view that this matter should settle and very strongly indicated this.  It was early in the trial – the time of the appellant’s opening.[83]  This was the time to make these views known and to point out potential problems for each party’s case.  I appreciate that the exchanges and the forthright style and nature of the Judge’s comments may have been unexpected and confronting to the appellant on the first day of trial.  This might particularly be so if she is inexperienced in the trial process.  However, in my view, a fair-minded, lay observer with appropriate knowledge would have seen it for what it was.

    [83]   This was not a case where the Judge had started to express views at a very early stage on the basis of his hearing and apparent acceptance of limited evidence adduced which, in appropriate circumstances, can be an indicator of a tendency to prejudgment.  In this case, no evidence at all had been adduced and the Judge made it very clear that his views were tentative, as a consequence of them being completely uninformed by the evidence.

18. The Judge was correct not to recuse himself.  Even if the appeal were to be competent, I would dismiss the claim of apprehended bias on the facts.  I order, on the respondent’s interlocutory application, that the appeal is dismissed as incompetent.  I will hear the parties as to any consequential orders.