case_text: respondent's submissions may be summarised as follows: (a) There is no principle of law to the effect that a judge who expresses views in deciding an interlocutory application about matters of impression should not hear the same proceedings on a final basis and that the principles concerning disqualification on the ground of apprehended bias have no application in the present circumstances; (b) Judicial officers are under a duty to hear and determine matters allocated to them ( Re JRL; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 at 352); (c) Judges should not too readily accede to applications for disqualification, otherwise litigants may succeed in effectively influencing the choice of the judge in their own cause by sidelining a judge who the particular litigant may see as likely not to determine the case favourably to them; (d) Judges should resist being driven from their courts by the conduct or assertion of parties, including assertions of actual or imputed bias (see Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (No 4) (1986) 6 NSWLR 674 at 689); (e) The pre-judgment principle is that a judge ought not hear a case if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions involved in the proceedings (see Livesey v New South Wales Bar Association [1983] HCA 17 ; (1983) 151 CLR 288 at 293 294; Re Watson; Ex parte Armstrong [1976] HCA 39 ; (1976) 136 CLR 248 at 258 263; Johnson v Johnson [2000] HCA 48 ; (2000) 201 CLR 488 at [11] [14] (pp 492 494), at [29] [54] (pp 498 509) and at [71] [81] (pp 514 518). (f) The attributes of the fictitious bystander discussed in the cases were recently articulated by a Full Court of this Court in Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2009] FCAFC 8 at [75] [82] and [85] [88]; (g) There is no suggestion of actual bias in the present case; (h) The evaluation undertaken by me of the applicant's trade mark and the Titan chair and the observations which I made concerning the class of likely purchasers of the parties' chairs were not matters which could attract the pre-judgment principle; (i) It was clear from the principal judgment that the views which I expressed were preliminary and taken only so far as the relevant principles concerning the requirements for the ground of interlocutory injunctions required; and (j) In all the circumstances, the reasonable bystander would not apprehend bias in the form of pre-judgment on the issues to be determined at the final hearing. A Full Court of this Court recently encapsulated the relevant principles. In Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2009] FCAFC 8 at [70] [74], Greenwood J (with whom Emmett J agreed) said: The basic principle upon which the common law system of adversarial trial rests is that the Tribunal is independent and impartial. So important is the principle that even "the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined" ( Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at [7] , per Gleeson CJ, McHugh, Gummow and Hayne JJ (" Ebner ")). The apprehension of bias principle finds expression in this test ( Ebner at [6]) (leaving aside any question of 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 test speaks of possibilities rather than probabilities and contemplates a "real and not remote" possibility that a judge might not bring an impartial mind to bear. The test recognises the possibility of human frailty in decision-making. The application of the test requires two things. First, the identification of what it is that might lead a judge to decide the particular questions before him or her other than on the merits. Secondly, having identified the factor or circumstance that might influence a departure from meritorious decision-making, it is "no less important" ( Ebner at [8]) to articulate the "logical connection" between that factor and the fear that the judge might not apply proper judicial method (that is, merits based decision-making) in resolving the controversy on the facts and the law ( Ebner at [8]: as to a recent example of the application of the second limb, see: Expectation Pty Ltd v PRD Realty Pty Ltd & Anor (No 2) [2006] FCA 392 ; (2006) 151 FCR 160). Only when the relevant factor is identified and the logical connection articulated, can the reasonableness of the asserted apprehension of bias be assessed. This test reflects ( Ebner at [33]): ... the general principle to be applied ... to problems of apprehended bias, whether arising from interest, conduct, association, extraneous information or some other circumstance. Ebner (comprising two appeals) was a case involving contended "interest" on the part of the primary judge through relatively small shareholdings in a major Australian bank held both directly in one case and through a family trust in another which, although disclosed, was said to give rise to apprehended bias in the determination of the issues. Johnson v Johnson [2000] HCA 48 ; (2000) 174 ALR 655 was a "conduct" case in which the primary judge during the course of a lengthy hearing concerning the distribution of substantial assets between a husband and wife consequent upon dissolution of the marriage, twice made a particular observation that was said to suggest pre-judgment (eg apprehended bias) as to the reliability or credit of the applicant husband. Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at [12] emphasised three things. First, reference to the hypothetical fair-minded lay observer makes plain the entirely objective character of the test. Secondly, the observer is taken to be "reasonable". Thirdly, applying an observation of McHugh J in Vakauta v Kelly (1988) 13 NSWLR 502 at 527 adopted by Toohey J in Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568 at 584 5, the Court noted that: 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. Further, the fictional observer is not presumed to have a detailed knowledge of the law, or the character, history or ability of a particular judge. Nevertheless, the reasonableness of any suggested apprehension of bias is to be considered in the context of "ordinary judicial practice" ( Johnson v Johnson at [13]). The rules and conventions governing such practice take account of the "exigencies of modern litigation". Sometimes modern case management will result in a dialogue between the judge and counsel which might suggest an impression as to the judge's view of the strengths or weaknesses of a party's case on a particular issue. Opinions (although tentative or preliminary) are very like to be formed yet participants in these processes understand that justice will be done between the parties because a judge applying the professional standards previously mentioned will ultimately decide issues on the merits by discarding the irrelevant, the immaterial and the prejudicial so as to reach a decision on the merits according to law. Sometimes, statements made or the behaviour of a judge may create "an ineradicable apprehension of pre-judgment" ( Johnson v Johnson at [14]). However, later statements or later behaviour or both taken together, may alter an impression of pre-judgment as, objectively viewed, "the hypothetical observer is no more entitled to make snap judgments than the person under observation" ( Johnson v Johnson at [14]). The lay observer must be "fair-minded" and act out of reason and thus act "reasonably". In order to act out of reason, the lay observer must have a frame of reference so as to make not just any decision but an informed decision and thus a reasoned decision. Plainly, the lay observer is not informed by a "detailed knowledge" of the law or by a knowledge of the values or expertise of the particular judge. Nor is the lay observer to be attributed with "undue knowledge and sophistication" ( Johnson v Johnson at [42], per Kirby J) or "highly specialised knowledge" or "all that was eventually known to the court" ( Johnson v Johnson at [49], per Kirby J). Yet, the fictitious bystander is not "wholly uninformed and uninstructed about the law in general or the issues to be decided" ( Johnson v Johnson at [53], per Kirby J). At [53], Kirby J also said this: The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. ... Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious . [emphasis added]


case_outcome: applied

case_text: respondent's submissions may be summarised as follows: (a) There is no principle of law to the effect that a judge who expresses views in deciding an interlocutory application about matters of impression should not hear the same proceedings on a final basis and that the principles concerning disqualification on the ground of apprehended bias have no application in the present circumstances; (b) Judicial officers are under a duty to hear and determine matters allocated to them ( Re JRL; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 at 352); (c) Judges should not too readily accede to applications for disqualification, otherwise litigants may succeed in effectively influencing the choice of the judge in their own cause by sidelining a judge who the particular litigant may see as likely not to determine the case favourably to them; (d) Judges should resist being driven from their courts by the conduct or assertion of parties, including assertions of actual or imputed bias (see Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (No 4) (1986) 6 NSWLR 674 at 689); (e) The pre-judgment principle is that a judge ought not hear a case if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions involved in the proceedings (see Livesey v New South Wales Bar Association [1983] HCA 17 ; (1983) 151 CLR 288 at 293 294; Re Watson; Ex parte Armstrong [1976] HCA 39 ; (1976) 136 CLR 248 at 258 263; Johnson v Johnson [2000] HCA 48 ; (2000) 201 CLR 488 at [11] [14] (pp 492 494), at [29] [54] (pp 498 509) and at [71] [81] (pp 514 518). (f) The attributes of the fictitious bystander discussed in the cases were recently articulated by a Full Court of this Court in Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2009] FCAFC 8 at [75] [82] and [85] [88]; (g) There is no suggestion of actual bias in the present case; (h) The evaluation undertaken by me of the applicant's trade mark and the Titan chair and the observations which I made concerning the class of likely purchasers of the parties' chairs were not matters which could attract the pre-judgment principle; (i) It was clear from the principal judgment that the views which I expressed were preliminary and taken only so far as the relevant principles concerning the requirements for the ground of interlocutory injunctions required; and (j) In all the circumstances, the reasonable bystander would not apprehend bias in the form of pre-judgment on the issues to be determined at the final hearing. A Full Court of this Court recently encapsulated the relevant principles. In Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2009] FCAFC 8 at [70] [74], Greenwood J (with whom Emmett J agreed) said: The basic principle upon which the common law system of adversarial trial rests is that the Tribunal is independent and impartial. So important is the principle that even "the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined" ( Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at [7] , per Gleeson CJ, McHugh, Gummow and Hayne JJ (" Ebner ")). The apprehension of bias principle finds expression in this test ( Ebner at [6]) (leaving aside any question of 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 test speaks of possibilities rather than probabilities and contemplates a "real and not remote" possibility that a judge might not bring an impartial mind to bear. The test recognises the possibility of human frailty in decision-making. The application of the test requires two things. First, the identification of what it is that might lead a judge to decide the particular questions before him or her other than on the merits. Secondly, having identified the factor or circumstance that might influence a departure from meritorious decision-making, it is "no less important" ( Ebner at [8]) to articulate the "logical connection" between that factor and the fear that the judge might not apply proper judicial method (that is, merits based decision-making) in resolving the controversy on the facts and the law ( Ebner at [8]: as to a recent example of the application of the second limb, see: Expectation Pty Ltd v PRD Realty Pty Ltd & Anor (No 2) [2006] FCA 392 ; (2006) 151 FCR 160). Only when the relevant factor is identified and the logical connection articulated, can the reasonableness of the asserted apprehension of bias be assessed. This test reflects ( Ebner at [33]): ... the general principle to be applied ... to problems of apprehended bias, whether arising from interest, conduct, association, extraneous information or some other circumstance. Ebner (comprising two appeals) was a case involving contended "interest" on the part of the primary judge through relatively small shareholdings in a major Australian bank held both directly in one case and through a family trust in another which, although disclosed, was said to give rise to apprehended bias in the determination of the issues. Johnson v Johnson [2000] HCA 48 ; (2000) 174 ALR 655 was a "conduct" case in which the primary judge during the course of a lengthy hearing concerning the distribution of substantial assets between a husband and wife consequent upon dissolution of the marriage, twice made a particular observation that was said to suggest pre-judgment (eg apprehended bias) as to the reliability or credit of the applicant husband. Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at [12] emphasised three things. First, reference to the hypothetical fair-minded lay observer makes plain the entirely objective character of the test. Secondly, the observer is taken to be "reasonable". Thirdly, applying an observation of McHugh J in Vakauta v Kelly (1988) 13 NSWLR 502 at 527 adopted by Toohey J in Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568 at 584 5, the Court noted that: 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. Further, the fictional observer is not presumed to have a detailed knowledge of the law, or the character, history or ability of a particular judge. Nevertheless, the reasonableness of any suggested apprehension of bias is to be considered in the context of "ordinary judicial practice" ( Johnson v Johnson at [13]). The rules and conventions governing such practice take account of the "exigencies of modern litigation". Sometimes modern case management will result in a dialogue between the judge and counsel which might suggest an impression as to the judge's view of the strengths or weaknesses of a party's case on a particular issue. Opinions (although tentative or preliminary) are very like to be formed yet participants in these processes understand that justice will be done between the parties because a judge applying the professional standards previously mentioned will ultimately decide issues on the merits by discarding the irrelevant, the immaterial and the prejudicial so as to reach a decision on the merits according to law. Sometimes, statements made or the behaviour of a judge may create "an ineradicable apprehension of pre-judgment" ( Johnson v Johnson at [14]). However, later statements or later behaviour or both taken together, may alter an impression of pre-judgment as, objectively viewed, "the hypothetical observer is no more entitled to make snap judgments than the person under observation" ( Johnson v Johnson at [14]). The lay observer must be "fair-minded" and act out of reason and thus act "reasonably". In order to act out of reason, the lay observer must have a frame of reference so as to make not just any decision but an informed decision and thus a reasoned decision. Plainly, the lay observer is not informed by a "detailed knowledge" of the law or by a knowledge of the values or expertise of the particular judge. Nor is the lay observer to be attributed with "undue knowledge and sophistication" ( Johnson v Johnson at [42], per Kirby J) or "highly specialised knowledge" or "all that was eventually known to the court" ( Johnson v Johnson at [49], per Kirby J). Yet, the fictitious bystander is not "wholly uninformed and uninstructed about the law in general or the issues to be decided" ( Johnson v Johnson at [53], per Kirby J). At [53], Kirby J also said this: The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. ... Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious . [emphasis added] In the same case at [120] [125], Besanko J said: The relevant test for apprehended bias is that set out in the reasons of the High Court in Johnson in the passage set out above ([114]). The High Court has referred to a number of principles which are relevant to the application of the test for apprehended bias. The cases, and the principles which emerge from them, are set out in the reasons for judgment of Greenwood J (at [70]-[74]). As the issue in this case is not the scope of the principles but their application to the facts of the case, it is not necessary for me to do other than provide a short summary of what I think are the more important principles, having regard to the circumstances of this case. The test stated in Johnson refers to possibilities, not probabilities, although the possibilities must be real and not remote: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at 345 [7] per Gleeson CJ, McHugh, Gummow and Hayne JJ. In circumstances in which it is alleged that a judge should disqualify himself or herself on the ground of a reasonable apprehension of bias by reason of prejudgment, the case must be firmly established and judges should not accede too readily to suggestions of appearance of bias: Re JRL; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 (" Re JRL ") at 352 per Mason J. It has also been said that a conclusion of a reasonable apprehension of bias is not to be drawn lightly: Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568 at 584-585 per Toohey J. The fair-minded lay observer "is to be presumed to approach the matter on the basis that ordinarily a judge will so act as to ensure both the appearance and the substance of fairness and impartiality"; at the same time, he is "not presumed to reject the possibility of prejudgment or bias": Livesey v The New South Wales Bar Association [1983] HCA 17 ; (1983) 151 CLR 288 (" Livesey ") at 299. In Johnson , Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ made observations on the need for any apprehension to be reasonable and on the knowledge to be attributed to the fair-minded lay observer. Their Honours said (at 493 [12]-[13]): ... 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". 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, 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 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". 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. (Citations omitted.) (See also at 508-509 [53] per Kirby J.) (See also Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55 ; (2006) 229 CLR 577 at 609-610 [111] per Kirby and Crennan JJ.) Apprehended bias may arise where a judge is required to make findings of fact about matters which were the subject of earlier findings of fact by the judge, which earlier findings have been set aside for whatever reason. The case of apprehended bias will be a strong one in cases in which the findings of fact turn on findings as to credit. It may be a strong one, even in those cases in which the findings of fact do not turn on findings of credit. Clearly, it depends on the precise circumstances of the case. In Livesey , the High Court said (at 300): It is, however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact. On the other hand, in Re JRL , Mason J said (at 352): It needs to be said loudly and clearly 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. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. (See also Laws v Australian Broadcasting Tribunal [1990] HCA 31 ; (1990) 170 CLR 70 at 100 per Gaudron and McHugh JJ.) The Court was referred to a decision of the Full Court of the Supreme Court of South Australia in Southern Equities Corp Ltd (in liq) v Bond [2000] SASC 450 ; (2000) 78 SASR 339 and a decision of the Court of Appeal of the Supreme Court of New South Wales in Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189 ; (2003) 126 LGERA 339. The facts of this case differ from the facts in those two cases. While it has been helpful to look at those two authorities, this case is to be decided by the application of the general principles to the facts of the case. The appellant did not put its submission of apprehended bias simply on the basis that, as a result of the decision of the Full Court, the primary judge was, or may have been, required to consider again factual matters about which he had previously made findings of fact (not based on findings of credit). That may be because of the nature of the error of the primary judge found by the Full Court and the fact that the Full Court said that, had the primary judge been right to exclude the disputed evidence, the appellant had not identified any error in his reasons. Besanko J dissented in the result.


case_text: respondent's submissions may be summarised as follows: (a) There is no principle of law to the effect that a judge who expresses views in deciding an interlocutory application about matters of impression should not hear the same proceedings on a final basis and that the principles concerning disqualification on the ground of apprehended bias have no application in the present circumstances; (b) Judicial officers are under a duty to hear and determine matters allocated to them ( Re JRL; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 at 352); (c) Judges should not too readily accede to applications for disqualification, otherwise litigants may succeed in effectively influencing the choice of the judge in their own cause by sidelining a judge who the particular litigant may see as likely not to determine the case favourably to them; (d) Judges should resist being driven from their courts by the conduct or assertion of parties, including assertions of actual or imputed bias (see Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (No 4) (1986) 6 NSWLR 674 at 689); (e) The pre-judgment principle is that a judge ought not hear a case if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions involved in the proceedings (see Livesey v New South Wales Bar Association [1983] HCA 17 ; (1983) 151 CLR 288 at 293 294; Re Watson; Ex parte Armstrong [1976] HCA 39 ; (1976) 136 CLR 248 at 258 263; Johnson v Johnson [2000] HCA 48 ; (2000) 201 CLR 488 at [11] [14] (pp 492 494), at [29] [54] (pp 498 509) and at [71] [81] (pp 514 518). (f) The attributes of the fictitious bystander discussed in the cases were recently articulated by a Full Court of this Court in Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2009] FCAFC 8 at [75] [82] and [85] [88]; (g) There is no suggestion of actual bias in the present case; (h) The evaluation undertaken by me of the applicant's trade mark and the Titan chair and the observations which I made concerning the class of likely purchasers of the parties' chairs were not matters which could attract the pre-judgment principle; (i) It was clear from the principal judgment that the views which I expressed were preliminary and taken only so far as the relevant principles concerning the requirements for the ground of interlocutory injunctions required; and (j) In all the circumstances, the reasonable bystander would not apprehend bias in the form of pre-judgment on the issues to be determined at the final hearing. In the same case at [120] [125], Besanko J said: The relevant test for apprehended bias is that set out in the reasons of the High Court in Johnson in the passage set out above ([114]). The High Court has referred to a number of principles which are relevant to the application of the test for apprehended bias. The cases, and the principles which emerge from them, are set out in the reasons for judgment of Greenwood J (at [70]-[74]). As the issue in this case is not the scope of the principles but their application to the facts of the case, it is not necessary for me to do other than provide a short summary of what I think are the more important principles, having regard to the circumstances of this case. The test stated in Johnson refers to possibilities, not probabilities, although the possibilities must be real and not remote: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at 345 [7] per Gleeson CJ, McHugh, Gummow and Hayne JJ. In circumstances in which it is alleged that a judge should disqualify himself or herself on the ground of a reasonable apprehension of bias by reason of prejudgment, the case must be firmly established and judges should not accede too readily to suggestions of appearance of bias: Re JRL; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 (" Re JRL ") at 352 per Mason J. It has also been said that a conclusion of a reasonable apprehension of bias is not to be drawn lightly: Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568 at 584-585 per Toohey J. The fair-minded lay observer "is to be presumed to approach the matter on the basis that ordinarily a judge will so act as to ensure both the appearance and the substance of fairness and impartiality"; at the same time, he is "not presumed to reject the possibility of prejudgment or bias": Livesey v The New South Wales Bar Association [1983] HCA 17 ; (1983) 151 CLR 288 (" Livesey ") at 299. In Johnson , Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ made observations on the need for any apprehension to be reasonable and on the knowledge to be attributed to the fair-minded lay observer. Their Honours said (at 493 [12]-[13]): ... 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". 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, 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 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". 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. (Citations omitted.) (See also at 508-509 [53] per Kirby J.) (See also Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55 ; (2006) 229 CLR 577 at 609-610 [111] per Kirby and Crennan JJ.) Apprehended bias may arise where a judge is required to make findings of fact about matters which were the subject of earlier findings of fact by the judge, which earlier findings have been set aside for whatever reason. The case of apprehended bias will be a strong one in cases in which the findings of fact turn on findings as to credit. It may be a strong one, even in those cases in which the findings of fact do not turn on findings of credit. Clearly, it depends on the precise circumstances of the case. In Livesey , the High Court said (at 300): It is, however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact. On the other hand, in Re JRL , Mason J said (at 352): It needs to be said loudly and clearly 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. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. (See also Laws v Australian Broadcasting Tribunal [1990] HCA 31 ; (1990) 170 CLR 70 at 100 per Gaudron and McHugh JJ.) The Court was referred to a decision of the Full Court of the Supreme Court of South Australia in Southern Equities Corp Ltd (in liq) v Bond [2000] SASC 450 ; (2000) 78 SASR 339 and a decision of the Court of Appeal of the Supreme Court of New South Wales in Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189 ; (2003) 126 LGERA 339. The facts of this case differ from the facts in those two cases. While it has been helpful to look at those two authorities, this case is to be decided by the application of the general principles to the facts of the case. The appellant did not put its submission of apprehended bias simply on the basis that, as a result of the decision of the Full Court, the primary judge was, or may have been, required to consider again factual matters about which he had previously made findings of fact (not based on findings of credit). That may be because of the nature of the error of the primary judge found by the Full Court and the fact that the Full Court said that, had the primary judge been right to exclude the disputed evidence, the appellant had not identified any error in his reasons.


case_text: principle was also explained in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 , (1992) 9 ACSR 309 at 437D 442D. A more recent exposition of the relevant principles can be found in McGovern v Ku-ring-Gai Council [2008] NSWCA 209 ; (2008) 251 ALR 558 , (2008) 161 LGERA 170 at [14] [24] (251 ALR at pp 561 562) and at [71] [83] (251 ALR at pp 569 573).


case_text: respondent's submissions may be summarised as follows: (a) There is no principle of law to the effect that a judge who expresses views in deciding an interlocutory application about matters of impression should not hear the same proceedings on a final basis and that the principles concerning disqualification on the ground of apprehended bias have no application in the present circumstances; (b) Judicial officers are under a duty to hear and determine matters allocated to them ( Re JRL; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 at 352); (c) Judges should not too readily accede to applications for disqualification, otherwise litigants may succeed in effectively influencing the choice of the judge in their own cause by sidelining a judge who the particular litigant may see as likely not to determine the case favourably to them; (d) Judges should resist being driven from their courts by the conduct or assertion of parties, including assertions of actual or imputed bias (see Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (No 4) (1986) 6 NSWLR 674 at 689); (e) The pre-judgment principle is that a judge ought not hear a case if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions involved in the proceedings (see Livesey v New South Wales Bar Association [1983] HCA 17 ; (1983) 151 CLR 288 at 293 294; Re Watson; Ex parte Armstrong [1976] HCA 39 ; (1976) 136 CLR 248 at 258 263; Johnson v Johnson [2000] HCA 48 ; (2000) 201 CLR 488 at [11] [14] (pp 492 494), at [29] [54] (pp 498 509) and at [71] [81] (pp 514 518). (f) The attributes of the fictitious bystander discussed in the cases were recently articulated by a Full Court of this Court in Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2009] FCAFC 8 at [75] [82] and [85] [88]; (g) There is no suggestion of actual bias in the present case; (h) The evaluation undertaken by me of the applicant's trade mark and the Titan chair and the observations which I made concerning the class of likely purchasers of the parties' chairs were not matters which could attract the pre-judgment principle; (i) It was clear from the principal judgment that the views which I expressed were preliminary and taken only so far as the relevant principles concerning the requirements for the ground of interlocutory injunctions required; and (j) In all the circumstances, the reasonable bystander would not apprehend bias in the form of pre-judgment on the issues to be determined at the final hearing.


case_title: Re Watson; Ex parte Armstrong [1976] HCA 39 ; (1976) 136 CLR 248


case_outcome: followed

case_text: McInnis FM noted that the Tribunal had made a series of adverse findings in relation to the appellant's credibility. His Honour observed that those findings, free of jurisdictional error, were largely incapable of supporting a decision that there had been an error of law. In relation to the husband's inconsistent evidence, McInnis FM relied on the decision of Marshall J in MZWMQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1263 (" MZWMQ ") to determine that the appellant's husband was an applicant before the Tribunal and that accordingly, s 424A(3)(b) of the Migration Act 1954 (Cth) ("the Act") operates to excuse the Tribunal from having to give written notice to the appellant of the evidence given by her husband. In any event, two significant findings in relation to the appellant's credibility were made on matters where the evidence of the appellant's husband was not relevant; first, the implausibility that someone in the appellant's position would be regarded as a political threat; and secondly, the fact that the appellant did not claim to be a refugee earlier. 18 Section 424A(1)(a) of the Act requires that the Tribunal provide to the appellant particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review. However, the issue before McInnis FM was whether the husband's evidence, as a dependant applicant, fell within the exception in s 424A(3)(b) of the Act in that it was information that 'the applicant gave for the purposes of the application'. McInnis FM relied on MZWMQ to reach the conclusion that the husband's evidence fell within the exception in s 424A(3)(b). The first respondent contended that the facts in this case are similar to those considered by Marshall J in MZWMQ . As a result, the Tribunal was not required to given written notice to the appellant of her husband's inconsistent evidence. 20 Counsel also referred to two additional cases that address the status of dependant applicants. In Peniche v Minister for Immigration and Multicultural Affairs [1999] FCA 709 , Weinberg J treated dependant family members as applicants in their own right for the purposes of s 425 of the Act, the section which gives the applicants an opportunity to give evidence to the Tribunal. However, in VBAM v Minister for Immigration and Multicultural Affairs [2003] FCA 504 , Gray J interpreted s 424A(3)(b) widely so as to include evidence given by witnesses called on behalf of the applicant to the Tribunal. As counsel for the respondents noted, the proposition that the exception in s 424A(3)(b) extends to all evidence given on behalf of the appellant, including that given by other unrelated witnesses, goes further than MZWMQ , and beyond the issue raised by this case. 21 I am not satisfied that I am only entitled to depart from the decision of Marshall J if I consider that his Honour was plainly wrong. There is no doubt that this proposition applies when a Full Court of this Court is asked to depart from a previous decision of the Full Court. But there seems to be no authority extending the principle to the decision of a single judge who was exercising appellate jurisdiction. So much was conceded by counsel for the respondents. The view I have reached is that I should accord MZWMQ the same authority and respect that I would accord other single judge decisions in this Court, and that I should not depart from it unless I am satisfied that it was wrongly decided. 22 The appellant and her husband are joint applicants in the proceedings before me, the appellant's application and the husband's dependant application having been combined pursuant to reg 1401(3)(c). I infer from the Tribunal's reasons that the appellant was present when her husband gave evidence to the Tribunal. The Tribunal specifically notes that the appellant was asked about discrepancies between her evidence and her husband's evidence. It also notes her responses that her husband was a very forgetful person and not very good with dates, and that her husband had confused the political parties that they were supporting. 23 In my opinion, it is consistent with the object and statutory purposes of s 424A(3)(b) to construe its reference to an application as including joint applications which are combined pursuant to the Regulations . In all the circumstances, including the reasons put forward by counsel for the respondents, I am not satisfied that MZWMQ was wrongly decided by Marshall J. I propose to follow MZWMQ and apply it in this case. Accordingly, I reject the appellant's claim that the Tribunal erred in not giving particulars of the husband's evidence to the appellant in the manner contemplated by s 424A(1)(a). As a joint applicant, the evidence given by the husband fell within the exception in s 424A(3)(b). 24 It also follows that, in my view, the Federal Magistrate did not err in rejecting the claim based on s 424A.


case_outcome: cited

case_text: The first respondent contended in written submissions that it is well established that the Tribunal is not required to make the appellant's case or require the appellant to remedy a deficiency in his or her case: see Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510, Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1522 and Naidu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1692 ; (2004) 140 FCR 284. Furthermore, the Tribunal is not required to put to the appellant its disbelief in her claims: see SZAFJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 291 at [31] - [32] , WABY v Refugee Review Tribunal [2005] FCA 209 at [69] and SZATB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 274 at [39] - [40] . The first respondent submitted that the Tribunal is not required to investigate for itself whether the appellant's claims were true and is not required to ask the appellant to clarify any issues that the Tribunal finds to be vague, confused and contradictory. The Tribunal assessed the appellant's claims and set out its reasons why it did not accept them in the first respondent's submission, there can be no suggestion that the Tribunal is required to act otherwise. Additionally, the first respondent submitted that a finding on a credibility issue that was open to the Tribunal on the material before it does not give rise to an error of law: see Mashyekhi v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 321 ; (2000) 97 FCR 381 and W148 v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 185 ALR 703.


case_title: Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1522


case_title: Naidu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1692 ; (2004) 140 FCR 284


case_title: SZAFJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 291


case_title: WABY v Refugee Review Tribunal [2005] FCA 209


case_title: SZATB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 274


case_title: Mashyekhi v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 321 ; (2000) 97 FCR 381


case_title: W148 v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 185 ALR 703


case_text: In oral submissions, counsel for the respondents asserted that this Court is bound to follow that decision unless it can be shown that it was 'plainly wrong' and the appellant has not put anything to the Court to indicate that the decision of Marshall J was plainly wrong: see VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [16] . Additionally, counsel submitted that the statutory context of s 424A(3)(b) supports Marshall J's interpretation. Counsel referred me to Pt IV of Sch 1 of the Migration Regulations 1994 (Cth) ("the Regulations ") . Regulation 1401(3)(c) provides that '[a]pplication by a person claiming to be a member of the family unit of a person who is an applicant...may be made at the same time and place as, and combined with, the application by that person.' Counsel also sought to rely on s 48A(2)(ab) of the Act which defines 'application for a protection visa' for the purposes of the section as including 'an application for a visa, a criterion for which is that the applicant is a non-citizen in Australia who is the spouse or a dependant of a non-citizen in Australia (i) to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol and (ii) who holds a protection visa.'


case_text: Counsel also referred to two additional cases that address the status of dependant applicants. In Peniche v Minister for Immigration and Multicultural Affairs [1999] FCA 709 , Weinberg J treated dependant family members as applicants in their own right for the purposes of s 425 of the Act, the section which gives the applicants an opportunity to give evidence to the Tribunal. However, in VBAM v Minister for Immigration and Multicultural Affairs [2003] FCA 504 , Gray J interpreted s 424A(3)(b) widely so as to include evidence given by witnesses called on behalf of the applicant to the Tribunal. As counsel for the respondents noted, the proposition that the exception in s 424A(3)(b) extends to all evidence given on behalf of the appellant, including that given by other unrelated witnesses, goes further than MZWMQ , and beyond the issue raised by this case.


case_title: VBAM v Minister for Immigration and Multicultural Affairs [2003] FCA 504


case_outcome: referred to

case_text: The appellant filed a notice of appeal on 21 October 2005 setting out the following grounds of appeal: "(a) The evidence of the appellant before the Tribunal was 'vague, confused and contradictory in relation to many aspects of her claim' and the learned Magistrate found that the Tribunal's adverse finding regarding the appellant's credibility was open to it, and hence there was no error in law. However, the decision of the learned Magistrate indicates that he adopts and applies the decision in VAT v- MIMIA (2004 FCAFC 255) which decision also encompasses the denial of procedural fairness as a jurisdictional error. The point is made that if the Tribunal found the appellant's evidence to be vague, confused and contradictory in relation to many aspects of her claim, then the Tribunal ought to have clarified the issues that were vague, confused and contradictory rather than making an adverse finding as to credibility without clarification. This assumes importance in relation to the Tribunal findings about the KKB. (b) The appellant's credibility was a deciding factor and the Tribunal relied on the appellant's husband's evidence to decide that issue and the appellant's husband was an applicant before the Tribunal, the learned Magistrate gave the incorrect interpretation to section 424A(1) and (3) in that the Tribunal had no legal obligation to put the appellant's husband's evidence to the appellant in accordance with section 424A of the Act. In saying that section 424A(3)(b) of the Act operates to excuse the Tribunal from giving notice, the learned Magistrate has not clarified what the word 'application' refers to in the said sub-section 424A(3)(b). (c) In seeking to rely on the decision in VBAP of 2002 v- MIMIA (2005) FCA 965 to substantiate that the Tribunal has not erred in its approach to section 424A in that in any way it would not have altered the findings of the Tribunal (see paragraph 27 of the learned Magistrate's judgment) what the learned Magistrate failed to see was that the finding on these two issues were crucial to the appellant's case." 11 In contentions of fact and law filed on 5 December 2005, the appellant again asserted that she was persecuted and threatened due to her membership of the Cyprus Women's Group. She submitted that there was a lack of state protection available to her and the police had failed to investigate the threats made. The appellant contended that her husband was unable to retain employment as a result of her political involvement in the Cyprus Women's Group and the fact that he voted against the incumbent government. Additionally, the appellant asserted that she underwent major surgery on 14 December 2004. None of these contentions, however, were subsequently pressed as independent grounds of appeal. 12 The appellant appeared before me on 23 February 2006 with the aid of an interpreter. I invited the appellant to identify any reasons why, or any facts or circumstances that supported her contention that, the decisions of the Tribunal and the Federal Magistrate were wrong. At the hearing, the appellant did not add anything of substance to the matters referred to in the notice of appeal and the contentions of fact and law. 25 The respondents advanced an alternative argument to address the contingency that the husband's evidence might fall outside the exception in s 424A(3)(b). The respondents submitted that McInnis FM was correct in applying the decision in VBAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 ( "VBAP" ). In VBAP , the Tribunal had rejected the applicant's claim on four separate bases. North J accepted at [31] that, in relation to one of these bases, s 424A may not have been complied with. However, his Honour held that, despite this non-compliance, he could not accept a submission that the Tribunal's decision must be set aside. His Honour distinguished SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 (" SAAP "), pointing out that SAAP was a case in which the only ground relied upon was a ground on which jurisdictional error was established. In his Honour's view, SAAP does not stand for the proposition that, if there is a breach of s 424A in relation to one ground upon which a decision is made, and there exist one or more grounds upon which the decision is not or cannot be impeached, the decision nevertheless fails.


case_text: The respondents advanced an alternative argument to address the contingency that the husband's evidence might fall outside the exception in s 424A(3)(b). The respondents submitted that McInnis FM was correct in applying the decision in VBAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 ( "VBAP" ). In VBAP , the Tribunal had rejected the applicant's claim on four separate bases. North J accepted at [31] that, in relation to one of these bases, s 424A may not have been complied with. However, his Honour held that, despite this non-compliance, he could not accept a submission that the Tribunal's decision must be set aside. His Honour distinguished SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 (" SAAP "), pointing out that SAAP was a case in which the only ground relied upon was a ground on which jurisdictional error was established. In his Honour's view, SAAP does not stand for the proposition that, if there is a breach of s 424A in relation to one ground upon which a decision is made, and there exist one or more grounds upon which the decision is not or cannot be impeached, the decision nevertheless fails.


case_text: It is unnecessary for me to deal with this argument because I have reached the conclusion that s 424A does not apply to the husband's evidence. In these circumstances, and having regard to the recent decision of the Full Court (Moore, Weinberg and Allsop JJ) in SZEEU v Minister for Immigration and Multicultural Affairs [2006] FCAFC 2 , I wish to reserve my opinion on the argument, both generally and in relation to its application in a case where the allegedly independent findings underpin a conclusion that the applicant's claims are not credible.


case_text: As Kenny J observed in Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 at [4] , on an appeal conducted by way of re-hearing, such as an appeal from a judgment of the Federal Magistrates Court, 'the powers of an appellate court are exercisable only if the appellant can demonstrate that, having regard to the evidence before the appellate court, the judgment under appeal is a consequence of some legal, factual or discretionary error'. The appellant has failed to point to any error in the decisions of the Tribunal and McInnis FM. 28 In my opinion, for the above reasons, the notice of appeal and the appellant's submissions, both written and oral, do not disclose any error in the decision of McInnis FM, or for that matter in the decision of the Tribunal. 29 I dismiss the appeal and order that the appellant pay the respondents' costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Young. Associate: Dated: 9 March 2006 Counsel for the Appellant: Appeared in person with interpreter Counsel for the Respondents: Mr M. Felman Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 23 February 2006 Date of Judgment: 9 March 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/176.html