Viscariello v Tamasauskas (No 2) - [2019] SASC 40

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
VISCARIELLO v TAMASAUSKAS (NO 2)
[2019] SASC 40
Judgment of The Honourable Justice Doyle
21 March 2019
COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - REASONABLE APPREHENSION OF BIAS GENERALLY
PROCEDURE - JUDGMENTS AND ORDERS
Application to set aside an order refusing permission to appeal, and for the Judge to recuse himself from determining the issue of costs consequential upon that order, on the basis of an apprehension of bias.
The plaintiff was refused permission to appeal from a decision granting a temporary stay of proceedings. After that order had been perfected, but before determining the issue of costs, the plaintiff applied for the Judge to set aside his order on the ground that, inter alia, there was a reasonable apprehension of bias arising out of his familial relationship with a member of the firm of solicitors representing the defendant (despite her not having had any involvement in these proceedings). This relationship had not been disclosed at the commencement of the proceedings.
Held (per Doyle J):
1. The familial association, even when considered in combination with the other matters raised by the plaintiff, does not provide a basis for concluding that a fair-minded lay observer might reasonably apprehend that the Judge might not have brought an impartial mind to the resolution of the application for permission to appeal, or might not bring an impartial mind to the resolution of the issue of costs arising out of the dismissal of that application.
2. The plaintiff’s application is dismissed.
Supreme Court Act 1935 (SA) s 50(5); Supreme Court Civil Rules 2006 (SA) r 242, referred to.
Viscariello v Tamasauskas [2018] SASC 111; Kowalski v R J Cole & Partners (2015) 122 SASR 320; Re Bernsteen Pty Ltd [2018] SASC 76; Australian Securities and Investments Commission v Macks (No 2) [2019] SASC 17; Clone Pty Ltd v Players Pty Ltd (2018) 92 ALJR 399; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; Dib Group Pty Ltd v Coolabah Tree Aust-Wide Pty Ltd [2011] FCAFC 57; McAdam v Robertson (1999) 73 SASR 360; Burrell v The Queen (2008) 238 CLR 218; Cornwall v Rowan (No 3) [2006] SASC 110; Webb v The Queen (1994) 181 CLR 41; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 65 FCR 215; IOOF Aust Trustees Ltd v SEAS Sapfor Forests Pty Ltd (1999) 78 SASR 151; Johnson v Johnson (2000) 201 CLR 488; Re JRL, Ex parte CJL (1986) 161 CLR 342; Bienstein v Bienstein (2003) 195 ALR 225; Attorney-General (NT) v Director of Public Prosecutions (2013) 166 NTR 1; Lawrie v Lawler [2015] NTSC 40; Dixon v Cargill Meat Processors Pty Ltd [2009] NSWSC 101; Willoughby City Council v Transport Infrastructure Development Corporation [2008] NSWLEC 231; Duke Group Ltd v Pilmer (No 3) [2001] SASC 215; Smits v Roach (2006) 227 CLR 423; Gascor v Ellicott [1997] 1 VR 322; Galea v Galea (1990) 19 NSWLR 263; Grassby v The Queen (1989) 168 CLR 1, considered.

VISCARIELLO v TAMASAUSKAS (NO 2)
[2019] SASC 40
Civil.

DOYLE J: On 7 August 2018, I refused the plaintiff (Mr Viscariello) permission to appeal from a decision granting a temporary stay of these proceedings, and published my reasons for so deciding.[1]
[1] Viscariello v Tamasauskas [2018] SASC 111.
Subsequently, by email to my chambers dated 27 August 2018, Mr Viscariello notified that he had learned that my sister is a solicitor from the firm representing the defendant in these proceedings. At a directions hearing convened in response to this communication, Mr Viscariello announced his intention to seek orders that I set aside my order of 7 August 2018 on the ground that there was a reasonable apprehension of bias arising out of my familial relationship with a member of the firm of solicitors representing the defendant. A timetable was set for the exchange of affidavit evidence and submissions. The matter was ultimately argued in late October 2018.
These are my reasons for declining to set aside my order refusing Mr Viscariello permission to appeal, and for declining to recuse myself from determining the issue of costs consequential upon that order.
Background
In these District Court proceedings against the defendant administrator of the estate of the late Mr Phillips (the District Court proceedings), Mr Viscariello alleges breaches of duty and retainer by Mr Phillips in his capacity as counsel for Mr Viscariello. Mr Phillips had been counsel for Mr Viscariello in the long-running proceedings brought by Mr Viscariello in the Supreme Court against Mr Macks (the former liquidator of two companies of which he was a director and shareholder) (the Supreme Court proceedings).
Mr Viscariello is a former legal practitioner in this State, and is representing himself in the District Court proceedings. This included representing himself on the application for permission to appeal heard by me, and the present application.
At the time of his death by suicide on 24 March 2016, Mr Phillips was still engaged as counsel by Mr Viscariello in the Supreme Court proceedings. Those proceedings had been concluded at first instance, and an appeal and cross-appeal had been listed to commence before the Full Court of the Supreme Court in April 2016 (the Supreme Court appeal).
As a result of Mr Phillips’ death, the Supreme Court appeal was vacated, and by the time the District Court proceedings were issued, it had been relisted for hearing in November 2016. That hearing was subsequently vacated, and the Supreme Court appeal was ultimately heard in February 2017.
In the District Court proceedings, Mr Viscariello alleges that Mr Phillips was obliged by the relevant Bar Rules, and by reason of his duties at law and under his retainer, to continue to represent him throughout the duration of the Supreme Court proceedings, including the Supreme Court appeal. Mr Viscariello further alleges that by committing suicide, Mr Phillips acted in breach of his duties and retainer.
In November 2016, the defendant filed an application seeking a stay of the District Court proceedings on the basis that the nature and quantum of Mr Viscariello’s claim could not be ascertained until the Supreme Court appeal had been determined, and that it would involve a waste of the parties’ and the Court’s time and resources to progress the proceedings in the interim. That application was not ultimately determined until September 2017, when the Master ordered that the action be stayed until further order. The Master granted the parties liberty to apply upon determination of the Supreme Court appeal, reflecting his Honour’s expectation that the stay would be a temporary stay – to be revisited, and likely lifted, following determination of the Supreme Court appeal.[2]
[2] Viscariello v Tamasauskas [2018] SASC 111 at [55]-[60].
Mr Viscariello appealed from the Master’s decision. This appeal was heard by a Judge of the District Court in December 2017. Her Honour reserved her decision.
In late December 2017, the Full Court of the Supreme Court delivered judgment in the Supreme Court appeal. Despite this decision, the parties requested that the Judge of the District Court proceed to determine the appeal from the Master’s decision to order a temporary stay. Her Honour did so, and in April 2018 dismissed Mr Viscariello’s appeal.
Rather than exercise the liberty to apply granted by the Master to revisit, and seek to have lifted, the temporary stay that his Honour had ordered, Mr Viscariello proceeded to appeal from the decision of the Judge of the District Court dismissing his appeal from the Master’s decision to order the stay.
That appeal came to me for determination. I held that the temporary stay ordered by the Master was an interlocutory order, with the result that permission to appeal was required.[3] In so holding, I queried the correctness of, but ultimately distinguished, some obiter observations of the majority in Kowalski v RJ Cole & Partners[4] to the effect that a permanent stay on the grounds of abuse of process might be treated as an order “in the nature of an injunction” for the purposes of s 50(5) of the Supreme Court Act 1935 (SA), and hence not require permission to appeal.
[3] Viscariello v Tamasauskas [2018] SASC 111 at [61]-[84].
[4] Kowalski v R J Cole & Partners (2015) 122 SASR 320.
In deciding to decline permission to appeal, I held that the appeal did not have sufficient merit to warrant appellate consideration.[5] Indeed, I ultimately went on to conclude that even if permission had been granted, I would have dismissed the appeal on the merits.[6]
[5] Viscariello v Tamasauskas [2018] SASC 111 at [87].
[6] Viscariello v Tamasauskas [2018] SASC 111 at [93]-[107].
However, in addition to the lack of merit in the proposed appeal, and in support of my conclusion to decline permission to appeal, I held that I was not satisfied that it would occasion Mr Viscariello any substantial prejudice[7] were the decision to order a stay left to stand.[8] I explained that, even putting to one side that the stay involved a matter of mere practice and procedure, was temporary in effect and had been the subject of two judicial determinations, there was the more fundamental difficulty that the event upon which the temporary stay was predicated (namely, the delivery of judgment in the Supreme Court appeal) had now occurred. There was, by then, nothing to prevent Mr Viscariello applying to have the stay lifted, and indeed that was precisely what the Master’s reasons and orders had contemplated would occur.
[7] The prospect of substantial injustice being a requirement of permission to appeal in the case of an appeal from an interlocutory order in relation to a matter of practice and procedure: Viscariello v Tamasauskas [2018] SASC 111 at [85], and the authorities referred to therein.
[8] Viscariello v Tamasauskas [2018] SASC 111 at [88].
In addressing Mr Viscariello’s decision to seek to appeal, rather than have the stay lifted, and the relevance of this to whether refusing permission to appeal would cause Mr Viscariello substantial injustice, I reasoned as follows:[9]
When asked by me why he has not taken this course [of applying to have the stay lifted], Mr Viscariello acknowledged that this course is open to him, but said that there was no guarantee he would succeed in having the order lifted, and that he was in any event entitled to pursue his rights by way of appeal. The only other matter advanced by Mr Viscariello in support of his decision to pursue an appeal, rather than an application to have the stay lifted, was that it might also have an impact upon his liability for costs in respect of the hearings below.
In my view, Mr Viscariello has not established that he would incur any substantial prejudice in the event that permission to appeal was refused. He is entitled to apply to have the stay lifted, and as the rationale for the stay was the need to await the outcome of the appeal that has now been determined, it would seem that Mr Viscariello will likely be successful in having the stay lifted. Indeed, that appears to be virtually certain now that the defendant has indicated that there will be no opposition to the stay being lifted. While this position was apparently only first made clear during submissions before me, I regard it as little more than a recognition of the obvious.
In my view, there is no good reason for Mr Viscariello to have pursued this appeal. His decision to do so appears to reflect a somewhat obstinate attitude to the conduct of the litigation, rather than an attempt to avoid any identifiable prejudice that could not otherwise be avoided by applying to have the stay lifted.
I do not regard the costs order made below as relevant prejudice. Such prejudice would likely exist in the case of most applications for permission to appeal. Any assertion of prejudice on account of costs was in any event only made in very general terms by Mr Viscariello. He did not support his reference to the costs implications of the order below with any evidence as to their likely quantum or impact upon him.
For all of these reasons, I am not satisfied that this is an appropriate case in which to grant permission to appeal.
[9] Viscariello v Tamasauskas [2018] SASC 111 at [88]-[92].
As events have transpired, and as contemplated by my reasons, the Master has since lifted the temporary stay that was in place at the time of the appeal before me. I was assured that the determination of the present application was thus not impeding the resumed progress of the District Court proceedings.
The disqualification application
Mr Viscariello’s proposed appeal was initially listed for hearing on 23 July 2018 before another judge of this Court. As a result of that judge recusing himself, the matter came to me at relatively late notice. The Court wrote to the parties indicating that I was available to hear the matter if the parties wished to maintain the hearing date. No objection was taken to me hearing the matter, and the matter proceeded before me on the scheduled day. I did not make any disclosure of any potentially disqualifying interest or association.
Having delivered my reasons for the declining to grant Mr Viscariello permission to appeal, the issue of costs remained to be addressed. There was some delay in the filing of written submissions, and so the issue of costs had not been determined as at the date of Mr Viscariello’s email of 27 August 2018.
In his email of 27 August 2018, Mr Viscariello said that he had come to learn that Ms Hannah Doyle is a principal at Iles Selley, the firm representing the defendant. He said that he had only learned this on 19 August 2018, after seeing a media report of her involvement in another matter on behalf of that firm. He sought confirmation that Ms Doyle was my sister, and an opportunity to put submissions in support of an entitlement to have his appeal reheard before another judge.
At a directions hearing on 31 August 2018, convened in response to Mr Viscariello’s email, I confirmed in open court that Ms Doyle is my sister, and is a principal with the firm Iles Selley. I added that I had understood from the appeal papers that the principal with the conduct of the defence of these proceedings was Mr Iles, and that I had not seen anything to suggest any involvement on the part of Ms Doyle. However, I acknowledged that in hindsight I ought to have disclosed Ms Doyle’s position with Iles Selley in case Mr Viscariello was not aware of her position or connection with me, and so as to ensure he had an opportunity to make any submissions he wished to make in relation to the appropriateness of me hearing the matter.
Mr Viscariello indicated during the course of the directions hearing that he did wish to pursue an application that I set aside my order refusing permission to appeal, disqualify myself and order that there be a rehearing of the matter before another judge of this Court. I set a timetable for the exchange of evidence and submissions, and listed the matter for oral hearing. That hearing occurred in late October 2018.
Mr Viscariello’s evidence
On 26 September 2018, Mr Viscariello filed his foreshadowed application. He also filed an affidavit in which he confirmed his indication in his email that he had only learned of Ms Doyle’s position at Iles Selley on 19 August 2018. He said that he had learned through subsequent internet searches that Ms Doyle had been employed by Iles Selley as a solicitor since 2010, and had in July 2018 become one of four principals of that firm. He said that had he known of my familial relationship with a principal from the firm representing the defendant he would have been entitled to apply for my disqualification from the matter.
There was no challenge to Mr Viscariello’s evidence as to the timing of his learning of my sister’s position with Iles Selley. I accept the truth of what he says in this regard, and proceed on that basis.
In his September 2018 affidavit, Mr Viscariello also made reference to various surrounding circumstances, mostly arising out of the Supreme Court proceedings and appeal mentioned above. As he explained, the Supreme Court proceedings included allegations by him about the conduct of Mr Macks, and various of the lawyers advising him from time to time, in respect of a suite of other proceedings involving a company of which Mr Macks was liquidator (Bernsteen Pty Ltd), Ms Hamilton-Smith and Ms George (the Bernsteen litigation).
The first matter raised by Mr Viscariello in this context was that Mr Selley (another principal of Iles Selley) had acted for Mr Macks in an aspect of the Bernsteen litigation. Mr Viscariello said that he had made a complaint to the Legal Practitioners Conduct Commissioner (LPCC) about the conduct of Mr Selley, and that the complaint had not been resolved. Mr Viscariello added that because of this unresolved complaint against Mr Selley, he had objected to Mr Iles acting for the defendant in the District Court proceedings. The grounds of this objection, and Mr Iles’ reasons for not acceding to it, were fleshed out in correspondence exhibited to Mr Viscariello’s affidavit. Mr Viscariello also alleged that Mr Iles had not been appropriately forthright in disclosing the source of his instructions in the District Court proceedings. Mr Viscariello said that he had made a complaint to the LPCC about Mr Iles’ involvement in the District Court proceedings, and that this complaint was also unresolved.
The second matter raised by Mr Viscariello arising out of the Supreme Court proceedings was the involvement of my brother, Mr Benjamin Doyle, as junior counsel for Mr Macks in the Supreme Court appeal. While the appeal itself had concluded prior to my involvement in these proceedings, the issue of the costs of that appeal remained outstanding.
Mr Viscariello did not suggest that he was unaware of Mr Doyle’s involvement in the Supreme Court appeal, or his relationship with me, at the time I heard his application for permission to appeal. Indeed, it is plain from matters to which I am about to refer that these matters had been earlier discussed in open court in another matter in which both Mr Viscariello and I were involved. However, Mr Viscariello contended that Mr Doyle’s involvement in the Supreme Court appeal was part of the surrounding circumstances relevant to a consideration of the present application.
Another familial connection
I interpose that following the conclusion of the Supreme Court appeal, I became the judge managing two pieces of related litigation. The first of these was proceedings brought by Mr Macks under s 1322 of the Corporations Act 2001 (Cth). The second was proceedings brought by the Australian Securities and Investments Commission against Mr Macks, seeking an inquiry and disciplinary relief against Mr Macks under s 536 of the Corporations Act in relation to his conduct of the liquidation of a company associated with Viscariello (based upon findings made against Mr Macks in the Supreme Court proceedings).
Mr Viscariello sought to intervene in the former, and appeared at a directions hearing in relation to both matters. At that directions hearing, submissions were made about Mr Doyle’s involvement in the Supreme Court proceedings. Senior counsel for Mr Macks confirmed that Mr Doyle’s involvement had been confined to the Supreme Court appeal. He further confirmed that Mr Doyle was no longer retained on behalf of Mr Macks, and that he would not be retained in the future on behalf of Mr Macks. On this basis all interested persons, including Mr Viscariello, consented to my hearing those two pieces of litigation.

The former proceedings were summarily dismissed by me in June 2018.[10] The latter are ongoing,[11] but without any involvement of Mr Viscariello of which I am aware.
[10] ReBernsteen Pty Ltd [2018] SASC 76.
[11] Australian Securities and Investments Commission v Macks (No 2) [2019] SASC 17.
Mr Iles’ evidence
Mr Iles filed an affidavit dated 10 October 2018 in which he deposed that he is a principal of the firm Iles Selley, and has the care and conduct of these proceedings on the defendant’s behalf. He explained that he was acting on the instructions of the statutory insurer to the Victorian legal profession (whose role is similar to that of Law Claims in South Australia).
Mr Iles deposed that at no stage had Ms Doyle, whether as a senior associate of the firm, or more recently as a principal of the firm, worked on these proceedings. He added that he was not able to recall any occasion on which he had discussed the matter with her, with the sole exception of advising her on or about 27 August 2018 that Mr Viscariello had objected to me having sat on the case.
Mr Iles refuted the suggestion that the principals in his firm would discuss amongst themselves factual and legal issues arising in their respective matters. Mr Iles said that that was not the case in his firm, where the lawyers generally worked in closed teams.
Mr Iles said that he had not had any direct involvement in the Supreme Court proceedings, and had only scant knowledge of the broader circumstances deposed to by Mr Viscariello. His knowledge was essentially confined to what he had read in the published judgments in those proceedings. He had virtually no understanding of why Mr Viscariello had made allegations against his partner, Mr Selley, other than knowing from his limited conversations with Mr Selley that Mr Viscariello had referred him to the LPCC, but that the allegations had not been investigated.
Mr Iles said he had not received any particularisation of the allegations made in Mr Viscariello’s complaint to the LPCC about him, but assumed that any complaint about him related to him acting in the District Court proceedings despite Mr Selley having had a previous involvement in a matter relevant to the Supreme Court proceedings. However, he had not ever received any communication from the LPCC indicating that there was a complaint or that he was under investigation, and Mr Viscariello had not ever taken steps, through an application to the Court or otherwise, to preclude Mr Iles or his firm from acting.
Mr Iles’ evidence was not challenged. I also accept the truth of what he says.
The contended grounds for disqualification
The primary ground asserted for a reasonable apprehension of bias on my part was my familial relationship with Ms Doyle, and her position as a principal at Iles Selley.
However, during the course of his submissions, Mr Viscariello also relied upon other matters which he contended supported the existence of the requisite apprehension. The first of these was my failure to disclose my relationship with Ms Doyle and her connection with the proceedings. The second was the broader circumstances arising out of the Supreme Court proceedings, and in particular Mr Selley’s involvement in an aspect of the Bernsteen litigation, Mr Viscariello’s complaint about Mr Iles (or Iles Selley) acting in the District Court proceedings, and Mr Doyle’s involvement in the Supreme Court appeal.
The third related to certain aspects of my reasons for declining to grant Mr Viscariello permission to appeal. In this respect, Mr Viscariello took issue with what he considered to be the inordinate lengths I went to in order to distinguish the decision in Kowalski v R J Cole & Partners[12] so as to permit me to conclude that his proposed appeal was against an interlocutory decision and hence required a grant of permission to appeal. He took issue with my description of his decision to seek to appeal the temporary stay rather than having it lifted as reflecting “a somewhat obstinate attitude to the conduct of the litigation”,[13] and with my observation that he had not supported his reference to the costs implications of the Master’s decision to grant a stay with any evidence as to their likely quantum or impact upon him.[14] He also took issue with my failure to mention in my reasons his submissions about Mr Iles’ motivations; and with my reliance upon the significance of the Supreme Court appeal to the District Court proceedings without the connection between the two being identified in the defence or my reasons.
[12] Kowalski v R J Cole & Partners (2015) 122 SASR 320.
[13] Viscariello v Tamasauskas [2018] SASC 111 at [90], as extracted earlier in these reasons.
[14] Viscariello v Tamasauskas [2018] SASC 111 at [91], as extracted earlier in these reasons.
Mr Viscariello conceded that my familial relationship with Ms Doyle may not have been sufficient by itself to warrant my disqualification. However, he contended that this familial relationship needed to be considered in the context of all of the above surrounding circumstances, and that their cumulative significance was sufficient to give rise to a reasonable apprehension of bias.
The timing of Mr Viscariello’s application
As I have accepted Mr Viscariello’s evidence that he did not learn of Ms Doyle’s position at Iles Selley until after the appeal had been decided, there can be no criticism of Mr Viscariello for the timing of his application.
Nor can there be any suggestion that he waived any right he had to object to my hearing the matter on account of a reasonable apprehension of bias. While he did know of the broader circumstances now relied upon by him in support of his application, he relies upon these matters merely as adding to or exacerbating the significance of my familial relationship with Ms Doyle, and not as independent grounds for disqualification. In the absence of any knowledge of Ms Doyle’s position at Iles Selley, I do not consider that Mr Viscariello’s knowledge of these broader circumstances means that he has waived any right to bring an application grounded in my familial relationship with her. Nor has he waived any right to support an application on this ground with the additional or exacerbating circumstances upon which he relies.
However, the fact remains that the application was not made until some weeks after I had made and entered an order refusing Mr Viscariello permission to appeal. Mr Viscariello’s application thus seeks that I set aside a perfected order.
There is no doubt that if Mr Viscariello were to seek permission to appeal from my decision to refuse him permission to appeal, then he could include as a proposed ground of appeal that I erred in failing to disqualify myself on the grounds of a reasonable apprehension of bias. If the Full Court were to grant permission, they would then be required to consider whether there was a reasonable apprehension of bias, and, if so, the consequences of this. If they concluded that there was a reasonable apprehension of bias, then presumably the exercise of my discretion to refuse permission to appeal would be set aside, and the Court would either exercise the discretion afresh or remit the matter for rehearing before another judge of this Court.
But it is not at all clear to me that I have power to set aside my own perfected order, even if I were persuaded that there was a basis for a reasonable apprehension of bias on my part. The general position is that once orders have been made and perfected, the judge who made those orders does not have the power to set aside, or otherwise revisit, those orders. That judge is usually said to be functus officio.
There is a qualification or exception to this reflected in r 242 of the Supreme Court Civil Rules 2006 (SA). That rule provides that the Court may correct an error in a judgment at any time (r 242(1)); or, if satisfied that the justice of the case so requires, vary a judgment or set aside a judgment and reopen the action (r 242(2)).
This rule encompasses intervention by the Court in circumstances of relatively formal errors that might be described as ‘slips’, or in the case of orders that do not otherwise reflect the intention of the Court. The present case does not fall within either of these categories of case.
The rule also encompasses intervention by the Court in circumstances of orders obtained by fraud. In that context, the High Court in Clone Pty Ltd v Players Pty Ltd[15] recently affirmed the importance of finality in litigation, and the consequentially narrow circumstances (outside of an appeal) in which courts may interfere with perfected orders. While this affirmation of the importance of finality in litigation is undoubtedly significant, it is not entirely clear whether r 242(2) nevertheless permits intervention outside of the very limited circumstances contemplated by the Court in that case. The plaintiffs in Clone Pty Ltd v Players Pty Ltd had relied below not only upon the Court’s equitable jurisdiction to intervene in cases of fraud, but also what they contended was a potentially broader power reflected in r 242(2). The High Court did not squarely address this aspect of the plaintiffs’ case, and so did not definitively confine r 242(2) to cases of fraud.
[15] Clone Pty Ltd v Players Pty Ltd (2018) 92 ALJR 399.
Mr Viscariello did not attempt to define, or identify the potential source of, any broader power under r 242(2). He merely asserted that there must be such power given the fundamental nature of the complaint he was advancing about the decision-making process.
There is some support in the authorities for a jurisdiction to interfere with orders, even after reasons have been published and orders announced (albeit not entered or perfected), outside of cases traditionally falling within the notion of a ‘slip’ rule (or involving orders not otherwise reflecting the intention of the Court), or involving fraud of the type contemplated by the High Court in Clone Pty Ltd v Players Pty Ltd. There is authority, for example, to the effect that a court may set aside its orders and reopen a matter where it is plain the Court has proceeded upon a fundamental misapprehension of the facts, has overlooked a significant matter, or has not given the parties an opportunity to be heard in respect of a significant matter.[16] On the other hand, and in any event, there is also authority to the effect that even this relatively narrow jurisdiction to intervene may not extend to cases where the Court’s orders have been entered or perfected.[17]
[16] Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 303; Dib Group Pty Ltd v Coolabah Tree Aust-Wide Pty Ltd [2011] FCAFC 57 at [81]-[84]; McAdam v Robertson (1999) 73 SASR 360 at [21]-[40].
[17] Burrell v The Queen (2008) 238 CLR 218 at [18]-[20].
Here, Mr Viscariello relies upon both the fundamental nature of an entitlement to have a hearing conducted by a judicial officer who is impartial and free from any reasonable apprehension of bias, together with the fact that he was denied an opportunity to be heard on this issue by reason of my failure to disclose Ms Doyle’s relationship to me, and position at Iles Selley, prior to the hearing. Against this, the fact remains that the order I made refusing permission to appeal has been perfected.
Mr Viscariello’s submissions in this respect are not without some force. I note that in Cornwall v Rowan (No 3),[18] for example, the Full Court of this Court, after its orders had been perfected, entertained an application seeking that those orders be set aside on the grounds of an apprehension of bias arising out of matters that had not been disclosed prior to the hearing. While the Court dismissed the application, it did so on the basis that the contention of apprehended bias had no merit. It may be that the point was not argued, but there was no suggestion by the Court that it did not have power to set aside its own orders had it been satisfied there was an apprehension of bias.
[18] Cornwall v Rowan (No 3) [2006] SASC 110.
However, I have not ultimately found it necessary to reach a final decision as to whether I have power to set aside my own order refusing Mr Viscariello permission to appeal. These are two reasons for this.
The first is that I have not yet ruled on the issue of costs. It may well be that the determination of costs will involve a simple application of the general rule that costs follow the event. While Mr Viscariello has to date declined to put submissions in relation to costs, he has not suggested any basis for resisting the application of this general rule. But regardless of how straightforward the issue of costs may be, if indeed there is a basis for a reasonable apprehension of bias, then it would likely follow that I should recuse myself forthwith and refer the issue of costs to another judge. I thus accept that I should consider the merit of Mr Viscariello’s contention of a reasonable apprehension of bias regardless of whether or not I have power to set aside my order refusing permission to appeal.
The second is that, for the reasons set out below, I have concluded that there is no basis for a reasonable apprehension of bias on my part. Thus, the question of whether I have power to set aside my order refusing to grant permission to appeal is moot.
Principles governing disqualification for apprehension of bias
In Webb v The Queen,[19] Deane J identified four distinct, but often overlapping, categories of case in which there might arise an apprehension of bias: that is, cases involving an interest, conduct, association or extraneous information. His Honour explained:[20]
The area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories of case. The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.
[19] Webb v The Queen (1994) 181 CLR 41.
[20] Webb v The Queen (1994) 181 CLR 41 at 74 (omitting citations); approved in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [24], [33].
The general principle governing disqualification for apprehension of bias is as set out in the following passage from the reasons of Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy:[21]
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge … the governing principle is that, subject to qualifications relating to waiver … or necessity, … 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. That principle gives effect to the requirement that justice should both be done and be seen to be done, 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.
[21] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] (omitting citations).
As their Honours later emphasised, the application of this apprehension of bias principle involves two steps:[22]
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
[22] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8].
It is thus critical to the success of any application for disqualification on the grounds of a reasonable apprehension of bias that the “logical connection” between the asserted interest or association and the feared departure from impartial decision-making be identified. It is only then that the reasonableness of any asserted apprehension of bias can be assessed.
Put another way, a reasonable apprehension of bias requires identification of a cogent and rational link that gives the interest or association the capacity to influence the decision to be made in the particular case.[23] If the connection or link is tenuous or remote, then the requisite apprehension will not be made out.
[23] Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 65 FCR 215 at 231; IOOF Aust Trustees Ltd v SEAS Sapfor Forests Pty Ltd (1999) 78 SASR 151 at [181].
In applying the apprehension of bias principle, it must be remembered that the test is an objective one, invoking the notion of a hypothetical fair-minded lay observer. It must also be remembered that the lay observer is taken to be reasonable, and to understand that the decision-maker is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial.”[24]
[24] Johnson v Johnson (2000) 201 CLR 488 at [12]. For a detailed consideration of the attributes of the lay observer, see IOOF Aust Trustees Ltd v SEAS Sapfor Forests Pty Ltd (1999) 78 SASR 151 at [184]-[197].
While it is obviously important that judges adhere to, and appreciate the breadth of, the apprehension of bias principle, it is also important that judges not accede too readily to submissions that it requires disqualification in a particular case. As Mason J said in Re JRL, Ex parte CJL:[25]
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.
[25] Re JRL, Ex parte CJL (1986) 161 CLR 342 at 352.
The High Court has subsequently repeated this caution against acceding to insubstantial objections,[26] or, put in positive terms, the need to ensure that that substantial grounds for the reasonable apprehension of bias have been established.[27] While this caution does not preclude administrative arrangements being made to arrange for an alternative judicial officer to hear a matter in cases of doubt, it is a relevant consideration in a case such as the present, where an application has been made after a judge has been allocated, and has commenced to hear the matter.
[26] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [19]-[20].
[27] Bienstein v Bienstein (2003) 195 ALR 225 at [35]-[36].
The significance of a familial relationship

The existence of a familial relationship between a judge and a party or one of their legal advisors may, depending on the circumstances, give rise to an association that is sufficient to establish a reasonable apprehension of bias.
Mr Viscariello relied upon the following exposition of the potential relevance of familial relationships from the Guide to Judicial Conduct:[28]
[28] Guide to Judicial Conduct, published for the Council of Chief Justices of Australia and New Zealand by the Australasian Institute of Judicial Administration Incorporated, 3^rd edition, 2017, at [3.3.4].
There are many personal relationships to be considered. The most important relationships may be categorised for present purposes as:
First degree – parent, child, sibling, spouse or domestic partner;
Second degree – grandparent, grandchild, “in-laws” of the first degree, aunts, uncles, nephews, nieces;
Third degree – cousins and beyond;
And such relevant relationships may exist with:
(i)Parties;
(ii)Legal Advisers or representatives of parties;
(iii)Witnesses.
In addition to such relationships, friendships or past professional or other association with such persons needs to be considered in some situations. There are no hard and fast rules, but the following guidance is offered.
(a)    A judge should not sit on a case in which the judge is in a relationship of the first, second or third degree to a party or the spouse or domestic partner of a party.
(b)    Where the judge is in a relationship of the first or second degree to counsel or the solicitor having the actual conduct of the case, or the spouse or domestic partner of such counsel or solicitor, most judges would and should disqualify themselves. Ordinarily there is no need to do so if the matter is uncontested or is a relatively minor or procedural matter. Nor is there a need to do so merely because the person in question is a partner in, or employee of, a firm of solicitors or public authority acting for a party. In such cases, it is a matter of considering all the circumstances, including the nature and extent of the involvement in the matter of the person in question. Some judges may be aware of cases involving such a relationship when the judge has sat without objection, but current community expectations make such conduct undesirable.
In most of these situations, Bar Rules in each jurisdiction require a barrister to return a brief to appear in a contested hearing, so the occasion for a judge to disqualify himself or herself should arise infrequently.
There may be a justifiable exception:
·    By reference to the principle of necessity …;
·    Where the solicitor-relative is a partner or employee of the solicitor on the record, but has not been involved in the preparation or presentation of the case;
·    Where, notwithstanding the relationship, the parties to the case consent to the judge sitting by that may depend upon the nature of the relationship, which should but disclosed to the parties before the judge decides whether to sit or not to sit.
While the Guide provides a useful framework, and some guidelines, for a judge’s consideration of whether there exists a disqualifying association, it does not have the status of rules that must be applied.[29] Further, and in any event, when read in its entirety, the above passage from the Guide does not suggest that disqualification would necessarily be required in a case such as the present.
[29] Attorney-General (NT) v Director of Public Prosecutions (2013) 166 NTR 1 at [25].
The Guide treats a sibling relationship as a first degree relationship. It suggests that a judge should not sit on a case in which they are in a first degree relationship with a party, counsel or the solicitor “having the actual conduct of the case”, unless the matter is uncontested or a relatively minor or procedural matter. The Guide adds that whether the need for disqualification arises will depend on all the circumstances, including the nature and extent of the involvement in the matter of the sibling. It suggests there may be a “justifiable exception” where a solicitor-relative is a partner or employee of the solicitor on the record, but has not been involved in the preparation of the case.
There are several authorities that have likewise acknowledged that a first degree relationship with a solicitor who is connected in some way to, but does not have the conduct of, the particular matter may not be sufficient to establish a reasonable apprehension of bias.[30]
[30] Lawrie v Lawler [2015] NTSC 40; Attorney-General (NT) v Director of Public Prosecutions (2013) 166 NTR 1; Dixon v Cargill Meat Processors Pty Ltd [2009] NSWSC 101; Willoughby City Council v Transport Infrastructure Development Corporation [2008] NSWLEC 231; Duke Group Ltd v Pilmer (No 3) [2001] SASC 215.
The High Court considered the potential relevance of a sibling association in Smits v Roach.[31] The appellant firm of solicitors (Smits Leslie) sued their former clients (the respondents) (the Roach interests) claiming an amount of between about $500,000 and $675,000 in unpaid fees for their professional services. The fees related to the work the appellants had done in acting for the respondents in professional negligence proceedings brought by the respondents against another firm of solicitors (Freehills). While the appellants had ceased acting for the respondents in the proceedings against Freehills, those proceedings were ongoing. The respondents were seeking significant damages of up to $1 billion against Freehills.
[31] Smits v Roach (2006) 227 CLR 423.
The appellant’s claim for unpaid fees against the respondents was heard and dismissed by McClellan J. It emerged late in the hearing that his brother was the managing partner of Freehills.
In contending that this sibling relationship represented a disqualifying association, the respondents pointed to the potential for the outcome of the claim brought against them by the appellants to affect the outcome of their claim against Freehills, and hence the interests of the Judge’s brother. It was said that as any fees payable by the respondents to the appellants might be claimed as part of the damages against Freehills, a dismissal of the appellants’ claim had the potential to relieve Freehills of an additional exposure to the respondents.
The High Court (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ, Kirby J dissenting) rejected the contention that a disqualifying association had been made out.
Gleeson CJ, Heydon and Crennan JJ commenced their analysis of this issue by observing that there was no suggestion that McClellan J had any personal interest, direct or indirect, in the case which he decided, or that he was in the position of being either personally, or through an alter ego, a party to the cause. Rather, the argument was based on association: a close family relationship with a person who, as a partner of Freehills, was said to have a financial interest in the outcome of the litigation between the appellants and the respondents.[32]
[32] Smits v Roach (2006) 227 CLR 423 at [51].
Their Honours accepted that the concepts of “association” and “interest” are protean, and not limited by bright lines.[33] Turning to the circumstances of that case, their Honours noted that while the Judge’s brother obviously had a pecuniary interest in Freehills, the important issue was whether he had an interest in the outcome of the litigation between the appellants and the respondents.[34] Their Honours reasoned that it was at least doubtful that Freehills had such an interest, and that it was even more doubtful that the brother, as one of more than 80 partners, had such an interest.[35] Their Honours did not accept that there was any “demonstrable relationship” between the amount claimed by the appellants from the respondents, and any amount Freehills might ultimately be required to pay.[36]
[33] Smits v Roach (2006) 227 CLR 423 at [52].
[34] Smits v Roach (2006) 227 CLR 423 at [40].
[35] Smits v Roach (2006) 227 CLR 423 at [52].
[36] Smits v Roach (2006) 227 CLR 423 at [52].
Their Honours concluded by referring to the two step approach articulated by the High Court in Ebner v Official Trustee in Bankruptcy in the context of what was contended to be a disqualifying “interest”, adding that this approach applied equally in the case of an asserted “association” with somebody who was said to have an interest in the relevant litigation. Their Honours said that the respondents had not identified or articulated the requisite “logical connection” between the association complained of and the feared deviation from impartial decision-making, or otherwise explained why it would have been reasonable to apprehend that McClellan J might decide the case on other than its legal and factual merits.[37]
[37] Smits v Roach (2006) 227 CLR 423 at [54].
Gummow and Hayne JJ reasoned similarly, also holding that there had been a failure to articulate the logical connection between the matter complained of (the Judge’s association with his brother) and the feared deviation by McClellan J. Their Honours held that attention had been fixed upon the first of the two steps required by Ebner v Official Trustee in Bankruptcy at the expense of the second.[38]
[38] Smits v Roach (2006) 227 CLR 423 at [58].
Kirby J, in dissent, took a more expansive view of a disqualifying association. In holding that the Judge’s loyalty to, or concern for, his brother might lead a judge to decide a case on other than its legal and factual merits, his Honour accepted that the outcome of the proceedings might contingently affect the interests of the Judge’s brother. It might do so by potentially affecting the amount that Freehills might be exposed to in the other proceedings, and by reason of the brother being a senior partner and chairman of the partners at Freehills, with duties that by inference extended to public relations for that firm, and in the context of litigation involving a huge claim that had already attracted unwelcome publicity.[39]
[39] Smits v Roach (2006) 227 CLR 423 at [115], [116].
The familial relationship in the present case
The starting point in analysing the present case is that there exists a sibling relationship between Ms Doyle and me. The Guide treats this as a first degree familial relationship, and it is appropriate in this case to proceed on the basis that a close familial relationship exists. It may be assumed that such a relationship would give rise to an apprehension that I would have a sense of loyalty to, or concern for, Ms Doyle and her interests.
However, it remains necessary to identify and scrutinise the logical connection between this association and the asserted apprehension that I might not bring an impartial mind to bear in deciding the matter; to identify and scrutinise the cogent and rational link said to give the association the capacity to influence the decision to be made. This invites a focus upon the interest that Ms Doyle might have in the outcome of the appeal (or application for permission to appeal) that I heard.
In that respect, it is relevant that Ms Doyle is not a party to the proceedings. Nor is she the counsel or solicitor acting for the defendant in these proceedings. Indeed, on the evidence of Mr Iles, Ms Doyle has had no involvement in the conduct of the matter at all. She has not even been privy to any discussions about the matter.
To the extent Ms Doyle has an interest in the outcome of the proceedings at all, it is one that arises merely from her position as a principal of Iles Selley. It is relevant that there are only four principals of Iles Selley, and that this is a factual difference from the sibling’s firm in Smits v Roach (which had over 80 partners). However, it remains necessary to identify the interest that Iles Selley (and then Ms Doyle) had in the outcome of the appeal I heard.
There is no suggestion, or basis in the evidence, to think that Iles Selley has any direct financial interest in the outcome of the District Court proceedings, let alone the appeal that I heard. There is no reason to think that whether Iles Selley will recover its fees, for example, will be influenced by the outcome of the proceedings, let alone the appeal. Indeed, given that Iles Selley is being instructed by the statutory insurer of the Victorian legal profession, it seems reasonable to assume they will be paid regardless of the outcome. A fortiori there is no suggestion, or basis in the evidence, to think that Ms Doyle has any direct financial interest in the outcome of the proceedings or the appeal. In this respect, the present application for disqualification is weaker than the unsuccessful one in Smits v Roach, where the outcome of the proceedings at least had the potential to affect the financial interests of Freehills and thus the Judge’s sibling.
It may be accepted that the barrister and solicitor with the conduct of a particular matter have something of a professional interest in the outcome of that matter. The barrister or solicitor will generally prefer to ‘win’ rather than ‘lose’ the matters in which they are involved. And, depending very much upon the nature and importance of the matter, it may be that the outcome will have the potential to affect their professional standing in some way amongst their professional colleagues and in the eyes of their clients and potential clients. It may in some cases affect their prospects of securing future work. It is reasoning along these lines – and perhaps also an apprehension that a judge might tend to identify the interests of a barrister or solicitor involved in a particular matter with the interests of their client[40] – that generally warrants disqualification in the case of a sibling with direct involvement in the conduct of a particular matter.
[40] cf IOOF Aust Trustees Ltd v SEAS Sapfor Forests Pty Ltd (1999) 78 SASR 151 at [195], where it was said that the lay observer would understand that the judge was trained to, and would, differentiate between counsel and their client rather that identify counsel with their client.
Similar reasoning might be extended to other members of the firm to which the solicitor with the conduct of the matter belongs. However, it seems to me that the strength or intensity of the professional interest becomes diluted once one moves from the individual to the firm, and then to other individuals within that firm.[41] It is this dilution that is reflected in the differing treatment of such situations in the passage from the Guide extracted above.
[41] See the discussion in Attorney-General (NT) v Director of Public Prosecutions (2013) 166 NTR 1 at [24]-[31], [35]-[41].
I accept that the extent of the dilution might be affected by the size of the firm (and hence be less in the case of a mid-sized or specialist firm such as Iles Selley). However, the extent of that dilution will also be affected by the nature and importance of the particular matter. In this case, the matter I was to hear was not a large scale or high profile matter. It was an appeal in respect of a temporary stay in District Court proceedings with a modest value. It stands in stark contrast with the “huge claim that had already attracted unwelcome publicity” in Smits v Roach.[42]While no doubt important in the parties’ minds, it is difficult to see how the outcome of the hearing before me could have materially impacted Iles Selley, let alone Ms Doyle.
[42] Smits v Roach (2006) 227 CLR 423 at [115].
In the circumstances, I am not satisfied that there is a sufficient logical connection between my familial association with Ms Doyle, and my apprehended ability to bring an impartial mind to bear in the appeal that I heard (let alone the question of costs consequential upon dismissal of that appeal), to conclude that there was a reasonable apprehension of bias. To the extent there is a connection at all, I do not think it is one that a lay observer would regard as a cogent and rational link with the capacity to influence my decision making. Any such connection is simply too indirect, tenuous or remote to reasonably attribute that capacity.
I thus do not accept that, by reason of this familial association alone, a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the appeal (or the question of costs). Indeed, Mr Viscariello ultimately conceded that my familial association with Ms Doyle may not have been sufficient by itself to warrant disqualification. It is in that context that he emphasised his submission that this association needs to be considered and assessed in the context of the other circumstances upon which he relies, including my failure to disclose the association. It is to these other circumstances that I now turn.
Non-disclosure
Mr Viscariello contended that my failure to disclose my familial relationship with Ms Doyle heightens the significance of my association with her. He contended that it gives rise to a feeling of disquiet that might reasonably lead, or at least assist, a fair-minded lay observer to form the relevant apprehension.
It is certainly unfortunate that I did not disclose my familial relationship with Ms Doyle, and her position at Iles Selley, despite there being no reason for me to think that she had had any involvement in the matter. I accept that it would have been prudent for me to have done so, not only in the interests of transparency, but also in case Mr Viscariello was not aware of these matters and wished an opportunity to consider his position or make any submissions in relation to my continued involvement in the matter; or in case I was wrong about Ms Doyle’s lack of involvement or was otherwise unaware of any other relevant surrounding circumstance.
However, in the circumstances of this case, I do not think my failure to make disclosure of these matters is ultimately of much significance.
In Ebner v Official Trustee in Bankruptcy, the plurality considered and rejected the contended significance of a failure to disclose. Gleeson CJ, McHugh, Gummow and Hayne JJ explained:[43]
It was argued that Mandie J's failure to disclose his acquisition of shares in the Bank was itself a ground of, or constituted evidence in support of a ground of, disqualification. This argument requires consideration of the matter of disclosure of potentially disqualifying interests or associations, although in the relatively straightforward context of ownership of shares in listed public companies. In other contexts, the problem may be more difficult.
It is necessary to distinguish between considerations of prudence and requirements of law.
As a matter of prudence and professional practice, judges should disclose interests and associations if there is a serious possibility that they are potentially disqualifying. It is common, and proper, practice for a judge who owns shares in a company which is involved in a case in which the judge is sitting to inform the parties of that fact and to give them an opportunity to raise an objection should they wish to be heard. In most cases, the outcome is that no objection is raised and, by reason of waiver, any potential problem disappears. One reason for the practice is that it gives the parties an opportunity to bring to the attention of the judge some aspect of the case, or of its possible consequences, not known to, or fully appreciated by, the judge.
It is, however, neither useful nor necessary to describe this practice in terms of rights and duties. At most, any "duty" to disclose would be a duty of imperfect obligation. A failure to disclose is relevant (if at all) only because it may be said to cast some evidentiary light on the ultimate question of reasonable apprehension of bias.[44] A failure to disclose has no other legal significance. In particular it does not, of itself, give a litigant any right to have the judge desist from further hearing the matter or to have the ultimate decision in the matter set aside for want of procedural fairness.
To describe the practice of making disclosure as a matter of right or duty may distract attention from the fundamental question to be answered which is whether the reasonable apprehension of bias test is established. That question will be litigated on appeal from the substantive decision in the matter or in proceedings for prohibition, certiorari or similar relief. Whatever the process which the person alleging reasonable apprehension of bias may adopt, there will, in those proceedings, be a full opportunity to make whatever case for disqualification of the judge the moving party can. Inquiring whether the moving party was denied some opportunity to make submissions on the question of disqualification to the judge in question is irrelevant. The question of disqualification can and will be litigated fully in the appeal or application for prerogative or like relief and no separate question of denial of procedural fairness could arise. The point can be illustrated by what happened in Clenae. The fact that the judge did not disclose his shareholding gives no different or additional right to the present appellants. All that they were denied by the fact that there was no disclosure was an opportunity to put an argument which we consider must fail.
…
In the present case, the failure of Mandie J to disclose his acquisition of shares in the Bank was of no legal consequence. For the reasons already given, he had a clear duty to deliver the judgment he had reserved. His failure to make disclosure did not deprive the appellants of an opportunity to advance any argument or inform him of any facts which would have given rise to a contrary conclusion. His silence could not reasonably support an inference of want of impartiality.
[43] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [67]-[73].
[44] cf Aussie Airlines v Australian Airlines (1996) 65 FCR 215 at 221 (Merkel J); Gascor v Ellicott [1997] 1 VR 322 at 361 (Ormiston JA).

It should be acknowledged that the plurality in the above passage allowed for the possibility that a failure to disclose might cast some evidentiary light on the ultimate question of whether there was a reasonable apprehension of bias. The two cases footnoted in support of this proposition contain similar observations.
Kirby J, in his reasons in Ebner v Official Trustee in Bankruptcy, also referred to the possibility that a failure to disclose an interest may lead to a sense of disquiet, and perhaps even a suggestion that the want of disclosure has an improper or sinister explanation.[45] Similarly, in his dissenting reasons in Smits v Roach, Kirby J took the failure to make timely disclosure into account as a relevant consideration.[46]
[45] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [171].
[46] Smits v Roach (2006) 227 CLR 423 at [118].
On the other hand, the majority judgments in Smits v Roach made no reference to the late disclosure by McClellan J, presumably on the basis that it was not a relevant consideration (in conformity with the reasoning of the plurality in Ebner v Official Trustee in Bankruptcy, as extracted above).
I am not satisfied that my failure to make timely disclosure in the present case is a matter of much significance. This was not a case of a failure to disclose a blatant or strong basis for disqualification. It was a failure to disclose a matter that ought to have been disclosed as a matter of prudence, but which was not likely by itself to require disqualification. There was no reason for a lay observer to attach any improper or sinister explanation to the non-disclosure. At most, it may have contributed to a sense of disquiet and hence be a matter to take into account when considering whether the circumstances as a whole give rise to a reasonable apprehension of bias.
The broader circumstances of the Supreme Court proceedings
The next matter relied upon by Mr Viscariello was the broader circumstances arising out of the Supreme Court proceedings, and in particular Mr Selley’s involvement in an aspect of the Bernsteen litigation, Mr Viscariello’s complaint about Mr Iles (or Iles Selley) acting in the District Court proceedings, and Mr Doyle’s involvement in the Supreme Court appeal. I have earlier outlined the rather complicated detail in relation to these broader circumstances.
As to the first two of these matters, I am not persuaded that Mr Viscariello’s complaints about Mr Selley and Mr Iles have any great significance in the present context. Even assuming there is merit in the complaints (as to which I am not in a position to express any view), I do not see that they have any logical connection to Ms Doyle’s interest in the outcome of the appeal I heard and hence the significance of my familial association with her.
Even if it be accepted that Mr Iles ought not to have been acting for the defendant in these proceedings, I do not understand how that might contribute to a feared deviation on my part from an impartial determination of the appeal. It may be accepted that there is a degree of antipathy on the part of Mr Viscariello towards Mr Iles and Mr Selley, and (while I do not assume this to be so) it may be that this is to some extent reciprocated. But there is no reason to attribute any such antipathy towards Mr Viscariello to Ms Doyle, particularly in circumstances where the evidence is that she has had no involvement in, or discussions about, the District Court proceedings with Mr Iles.
Further, and in any event, it is difficult to see how any of this bears on my association with Ms Doyle. There is no suggestion that I was aware of any of the matters in dispute between Mr Viscariello and Mr Iles and Mr Selley (let alone any follow-on consequence this might have had for Ms Doyle). But even if it be assumed that I knew of these matters (or would have learned of them if I had disclosed my association with Ms Doyle in a timely way), I do not think they would have materially contributed to any apprehension by a fair-minded lay observer that I might deviate from an impartial determination of the proceedings. Even if it were assumed that Ms Doyle had some antipathy to Mr Viscariello (which, for the reasons set out, I regard as a tenuous assumption) I do not think a lay observer would reasonably assume that I would share, or identify with, this antipathy or otherwise allow it to impair my judicial obligation to bring an impartial mind to bear on the appeal I heard.
Turning to the third of these broader circumstances, namely Mr Doyle’s involvement in the Supreme Court appeal, as explained earlier, this was a matter known to Mr Viscariello at the time of the hearing before me. It follows that Mr Viscariello must be taken to have waived any objection to this matter as an independent ground for disqualification.
There is no logical connection or interrelationship between Mr Doyle’s involvement in the Supreme Court appeal, and the involvement of Ms Doyle’s firm in the present proceedings as the solicitors on the record for the defendant. However, I accept that in considering the significance that a hypothetical fair-minded lay observer might reasonably attach to my association with Ms Doyle, it is relevant to consider all of the surrounding circumstances, and that this might include Mr Doyle’s involvement in the Supreme Court appeal. Even so, I do not see how Mr Doyle’s involvement in the Supreme Court appeal materially adds to this broader consideration of the significance of my association with Ms Doyle.
There is no basis for suggesting that Mr Doyle has or had any interest in the District Court proceedings. There is a factual connection between the two sets of proceedings in the sense that the outcome of the Supreme Court appeal had the potential to affect any damages recoverable in the District Court proceedings.[47] However, it was not explained how this potential factual overlap might give rise to an apprehension that I might deviate from an impartial determination of the appeal that I heard.
[47] At least that is so on my analysis of the issues, although as it happens Mr Viscariello did not accept this connection during the course of the appeal before me.
In the end, the asserted relevance of Mr Doyle’s involvement in the Supreme Court appeal seemed to boil down to an implicit suggestion that because my brother acted for a party opposed to Mr Viscariello in other proceedings, somehow he might have developed an antipathy towards Mr Viscariello; and an apprehension that my loyalty to, or concern for, my brother might have led to me sharing that antipathy or have otherwise impaired my impartiality. I am not persuaded that a fair-minded lay observer, understanding the roles of junior counsel in an appeal, and me as a judicial officer in a quite separate appeal, would reasonably take any of the steps in this chain of reasoning.
In summary, to the extent my brother’s involvement in the Supreme Court appeal is presently relevant at all, I consider it to be too remote or tenuous a connection to add significantly to the relevance of my familial association with Ms Doyle.
At one point, in his submissions Mr Viscariello put a contention to the effect that the fair-minded lay observer might reasonably apprehend that siblings in the legal profession might discuss and disclose to each other details about matters in which they are involved. While it may be assumed that some general discussions do occur, the significance of this is tempered by the consideration that the lay observer will be taken to appreciate that barristers and solicitors have, and take seriously the observance of, obligations attendant upon their privileged and confidential relationships with their clients. The lay observer would not assume that a barrister or solicitor would breach their obligations to their clients even in a familial setting. Further, and in any event, the lay observer would also be taken to understand that even if, inadvertently or otherwise, some confidential matter about the parties, or otherwise of relevance, was communicated to the judicial officer, their duty would be to reveal this to the parties.[48]
[48] To similar effect, see Attorney-General (NT) v Director of Public Prosecutions [2013] 166 NTR 1 at [26].
But in any event, Mr Viscariello never identified what it was that might have been communicated to me by one or other of my siblings that might have given rise to, or contributed to, an apprehension of bias. It was not made clear whether this submission was intended merely to add colour or intensity to the submissions made in relation to my familial associations, or whether it was intended to suggest a potentially separate ground for disqualification on the basis of my being in possession of extraneous information (that is, the fourth category of case mentioned in the passage from the reasons of Deane J in Webb v The Queen extracted above). But regardless of the intended relevance of the submission, left unparticularised and undeveloped as it was, I do not consider it to be of any significance in my consideration of the present application.
The aspects of my reasoning relied upon by Mr Viscariello
Finally, in support of his contention that there was a reasonable apprehension of bias, Mr Viscariello relied upon several aspects of my reasons for dismissing his application for permission to appeal.
There is something of a temporal conundrum associated with Mr Viscariello’s reliance upon my reasons for refusing his application or appeal to support a contention that I ought to have been disqualified from hearing that application or appeal. However, as that conundrum is a function of my failure to disclose my familial association in a timely way, with the result that the issue of disqualification only fell to be addressed at this later stage, I accept that it is relevant and appropriate to consider the matters complained of by Mr Viscariello.
The matters relied upon by Mr Viscariello have potential relevance in two ways. First, they may be relevant in their own right as “conduct” giving rising to an apprehension of bias (that is, the second category of case mentioned in the passage from the reasons of Deane J in Webb v The Queen extracted above). Secondly, they may have an evidential relevance, in a circumstantial way, as being probative of the significance of my familial association.
As to this second potential head of relevance, I note that Kirby J appears to have employed reasoning to this effect in his (dissenting) reasons in Smits v Roach in holding that it was relevant to consider the judicial officer’s “strong language, critical of the appellants’ credibility” and his “intuitively surprising” decision to refuse the appellants any recovery (which decision was overturned in the Court of Appeal).[49]
[49] Smits v Roach (2006) 227 CLR 423 at [118].
While thus accepting the potential relevance of these matters, caution is appropriate. It is common, and often appropriate, for judicial officers to express themselves in direct and robust terms. The task of writing a judgment is not an exercise in diplomacy. The mere fact that a judge has drawn adverse conclusions, made comments which are critical of a party, or expressed himself or herself in direct or robust terms will rarely be probative of an apprehension of bias. That said, the position may be otherwise if there are aspects of the reasons that are entirely gratuitous or otherwise not relevant or referable to the decision-making process required of the judge. Statements made by a judge (whether made arguendo or in reasons for judgment) which suggest antipathy, or an attitude of prejudgment, towards a party or their legal representative may, depending upon the circumstances, be probative of a reasonable apprehension of bias.[50]
[50] IOOF Aust Trustees Ltd v SEAS Sapfor Forests Pty Ltd (1999) 78 SASR 151 at [183]; Galea v Galea (1990) 19 NSWLR 263 at 279-280; Grassby v The Queen (1989) 168 CLR 1 at 19-21.
The first aspect of my reasons complained of by Mr Viscariello in this case is what he described as the inordinate lengths that I went to in order to distinguish the decision of the majority in Kowalski v R J Cole & Partners.[51] In their joint judgment in that case, Gray and Sulan JJ made some obiter observations to the effect that a permanent stay for an abuse of process was an order “in the nature of an injunction” for the purposes of s 50(5)(c) of the Supreme Court Act 1935 (SA), and hence did not require permission to appeal. It is true that a number of paragraphs of my reasons were occupied with a consideration of those obiter observations. Having referred to the views of Bampton J in the same case, as well as some other authorities and a passage from Meagher, Gummow & Lehane’s Equity – Doctrine & Remedies, which I considered supported a different view, I expressed some reservations about the correctness of their Honours’ observations. However, I said that I did not ultimately need to express a concluded view as to whether a permanent stay for an abuse of process was an order in the nature of an injunction; it was sufficient that I concluded that the temporary stay ordered by the District Court Master was not an order in the nature of an injunction.
[51] Kowalski v R J Cole & Partners (2015) 122 SASR 320.
It is fair to say that I went to some lengths to distinguish the observations of the majority in Kowalski v R J Cole & Partners. But I do not accept that a reader of my reasons would reasonably think that I went to inordinate lengths to do so, or that I did so for some inappropriate reason. I do not think that a reading of my reasons in relation to this issue would give rise to any feeling of disquiet, or concern that I might lack impartiality. Rather, I consider that a fair-minded lay reader of my reasons would regard them as appropriately detailed and careful given the significance to the parties of the issue of whether or not the order in question was one which required permission to appeal. I, of course, consider that my reasoning was sound, and unaffected by any external consideration. But that is not the point. The point is that I do not think that there is anything about my reasoning or conclusion in relation to this issue that would support, let alone establish, a reasonable apprehension of bias.
The next aspect of my reasoning with which Mr Viscariello took issue was my observations that his decision to seek to appeal the temporary stay, rather than having it lifted by the Master, reflected a “somewhat obstinate attitude to the conduct of the litigation”,[52] and that he had not supported his reference to the costs implications of the Master’s decision to grant a stay with any evidence as to their likely quantum or impact upon him.[53] Mr Viscariello contended that the first of these observations was gratuitous, without notice and extraordinary (given that his grounds of appeal were arguable); and that the second was simply incorrect because it ignored the evidence about the additional costs Mr Viscariello had incurred in defending the Supreme Court appeal.
[52] Viscariello v Tamasauskas [2018] SASC 111 at [90], as extracted earlier in these reasons.
[53] Viscariello v Tamasauskas [2018] SASC 111 at [91], as extracted earlier in these reasons
I do not accept these contentions. They appear to be founded upon a misunderstanding of the relevant passage of my reasons. Having explained that permission to appeal from an interlocutory order required a consideration of not only the merits of the proposed appeal, but also whether there was a risk of substantial injustice were permission to be refused, the impugned passage of my reasons was addressing this second issue, and in particular whether Mr Viscariello would suffer any substantial injustice were permission to appeal be refused.
It was directly relevant to that issue to consider what utility there was in the appeal; that is, the reason it was being pursued, and what prejudice (if any) Mr Viscariello might suffer if permission were refused. Given that the temporary stay which Mr Viscariello was seeking to appeal was likely to be lifted in any event, I was not satisfied that there was any practical utility in the appeal. It was not likely to achieve anything that could not be achieved in any event. It was in this context that I made the finding that the appeal was being pursued not so as to avoid some substantial injustice, but rather merely reflected an obstinate decision by Mr Viscariello to appeal because he considered he was entitled to do so. Far from being irrelevant or gratuitous, the finding was an aspect of my reasoning towards the conclusion that permission to appeal should be refused.
The finding that the decision to appeal reflected an obstinate approach to the conduct of the litigation was not made without notice. The issue of the utility of the appeal, and the prejudice to Mr Viscariello if permission were refused, was the subject of questions from me, and submissions by Mr Viscariello. And it was not “extraordinary” to suggest that the appeal reflected an obstinate approach to the litigation by Mr Viscariello when he was unable to identify any practical utility in the appeal (other than potentially assisting in the recovery of his costs of the unsuccessful application below). The mere existence of arguable grounds of appeal did not mean that there would be a substantial injustice if permission were refused. The very fact that arguable merit and the potential for substantial injustice are two separate limbs of the test for permission to appeal presupposes that the later assumes something more than the existence of the former.
Contrary to Mr Viscariello’s submissions on this application, the reference in my reasons to Mr Viscariello not having supported his reference to the costs implications of the Master’s decision to grant a stay with any evidence as to their likely quantum or impact upon him was not a reference to any additional costs he incurred in relation to the Supreme Court appeal. It was a reference to the costs orders made against him on account of his unsuccessful attempts to resist the temporary stay, and the prospect that if he were to succeed on his proposed appeal, he might have those costs orders overturned. The point I was making was that even if such costs were relevant prejudice (which I did not accept), there was no evidence as to their likely quantum or impact upon him. I am not aware of any basis for suggesting I was wrong about this. But more importantly, once properly understood, I do not think that my reasoning in relation to this issue provides any basis for a reasonable apprehension of bias.
Mr Viscariello complains that my reasons “conveniently” did not address his submissions about Mr Iles’ motivations and conduct in connection with the District Court proceedings. I did not mention this matter because I did not understand it to be a matter that was relevant, let alone necessary, to my determination of the issues that I was required to decide. I remain of that view. More importantly, I cannot see how my failure to address this issue would support any reasonable apprehension of bias.
Finally, Mr Viscariello complains that my reasons (like the submissions of the defendant, and the reasons below of the Master and District Court Judge) relied upon the outcome of the Supreme Court appeal being significant to the District Court proceedings, without this significance being identified in the defence or in my reasons. I addressed this issue in my reasons. I commenced by summarising the reasoning of the Judge below on this issue.[54] I later returned to the issue, and upheld and adopted the Judge’s reasoning,[55] before explaining the potential significance of the outcome of the Supreme Court appeal in my own terms.[56] I also explained why, in my view, it was significant that the issue did not at this stage appear in the defence.[57]
[54] Viscariello v Tamasauskas [2018] SASC 111 at [43].
[55] Viscariello v Tamasauskas [2018] SASC 111 at [102].
[56] Viscariello v Tamasauskas [2018] SASC 111 at [106].
[57] Viscariello v Tamasauskas [2018] SASC 111 at [103]-[104].

While I of course consider that my treatment of this issue was sound, once again that is not the issue. Even if I was wrong, that would not of itself be probative of, let alone establish, a reasonable apprehension of bias. It was never clearly articulated in submissions what it was about this passage of my reasoning that bespoke a lack of impartiality. There is nothing in the nature of my treatment of this issue that to my mind would give rise to, or even contribute to, a reasonable apprehension of bias.
Conclusion
In summary, I am not satisfied that my familial association with Ms Doyle, even when considered in combination with all of the other matters relied upon by Mr Viscariello, provides a basis for concluding that a fair-minded lay observer might reasonably apprehend that I might not have brought an impartial mind to the resolution of the application for permission to appeal that I heard, or that I might not bring an impartial mind to the resolution of the issue of costs arising out of my dismissal of that application.
Accordingly, I refuse the plaintiff’s application to set aside my order dismissing his application for permission to appeal, and decline to disqualify myself.
I will hear the parties as to the costs of the application for permission to appeal, and the costs of the present application.