Vakauta v Kelly

This matter concerns an application for special leave to appeal to the High Court of Australia. The applicant, Mr Vakauta, sought to appeal a decision of the Court of Appeal of New South Wales. The dispute revolved around allegations of apprehended bias on the part of the trial judge.

The central legal issue before the High Court was the correct test to be applied when determining whether a judge's conduct gives rise to a reasonable apprehension of bias. Specifically, the applicant argued that the Court of Appeal had erred by imputing too much knowledge to the hypothetical "objective bystander," effectively transforming this observer into an expert on judicial processes and litigation. The applicant contended that the Court of Appeal had applied a test that differed from the established principles articulated in *Livesey*.

The applicant's submissions, referencing *Livesey*, emphasised that the test for apprehended bias requires considering whether, in all the circumstances, the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial mind to the case. The applicant argued that the reasonable observer is presumed to have ordinary community knowledge, not specialised knowledge of court procedures or the character of judges. The applicant further submitted that if a judge has previously expressed clear views on a significant factual issue or a witness's credit that is central to a subsequent case, this can create a reasonable apprehension of bias, even if those issues might otherwise be conceded or the witness not called. The applicant contended that the trial judge's conduct in the present case presented the clearest possible instance of prejudgment, both in fact and by apprehension, which the Court of Appeal had failed to properly address.