Waterhouse v Independent Commission Against Corruption (No 2)

In *Waterhouse v Independent Commission Against Corruption (No 2)*, the applicant, Mr. Waterhouse, sought the disqualification of Emmett JA from hearing his appeal against a decision of the Independent Commission Against Corruption (ICAC). The basis for the application was an apprehension of bias arising from a previous, unrelated proceeding in which Emmett JA had made adverse comments about Mr. Waterhouse's character.

The central legal issue before the Full Federal Court was whether there was a reasonable apprehension that Emmett JA might not bring an impartial mind to the appeal. This required the Court to consider the test for apprehended bias, which involves assessing whether a fair-minded lay observer, knowing the facts, would apprehend that the judge might not decide the case impartially.

The Court reasoned that the adverse comments made in the previous proceeding, while critical of Mr. Waterhouse's conduct in that specific context, were not indicative of a pre-existing prejudice that would prevent Emmett JA from impartially considering the evidence and arguments in the current appeal. The comments were confined to the facts of the prior case and did not suggest a general hostility or predisposition against Mr. Waterhouse. The Court applied the established principles for determining apprehended bias, focusing on the appearance of impartiality from the perspective of a reasonable member of the public.

The application for disqualification was refused.