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When is a Judge disqualified for bias?

 

Legal advice

A decision-maker being impartial is one of the core requirements of natural justice.

In the 19th century, Lord Campbell in Dimes [1852] EngR 789 said that “no man is to be a judge in his own cause”.

As a majority of the High Court noted in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63:

“Fundamental to the common law system of adversarial trial is that it is conducted by an independent and impartial tribunal. Perhaps the deepest historical roots of this principle can be traced to Magna Carta (with its declaration that right and justice shall not be sold)”.


 

Legal meaning of biased

Bias in the law is a decision-maker making a decision because of factors other than the merits of the case, rather than different treatment of the parties.

Therefore, the fact that a decision-maker disbelieves, or is critical of, a party or a witness does not, of itself, indicate bias: Ramadan v New South Wales Insurance Ministerial Corporation, unreported, New South Wales Court of Appeal, 7 April 1995 (“Ramadan“) at 3 per Kirby P, at 11 per Rolfe AJA. Furthermore, it is permissible for decision-makers to make known their preliminary views for the purpose of ventilating issues. Even where preliminary views are strongly held, there will be actual bias only if they are incapable of being altered.  Also, it is not always sufficient to show that a decision-maker has displayed irritation or impatience or has even expressed sarcasm, and that whether such matters show actual bias remains a question of fact: see Galea v Galea (1990) 19 NSWLR 263 at 279 per Kirby ACJ.

In Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, it was said that:

“requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it.”

The procedure

The procedure is to ask a Judge to disqualify themselves at first instance. Should they refuse to do so, that refusal can be a ground of appeal against the ultimate decision: See Barton v Walker [1979] 2 NSWLR 740. A failure to apply for the primary judge’s recusal at first instance ordinarily prevents a party from taking the point on appeal: see Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568.

However, judges should not disqualify themselves if they do not think they are arguably disqualified. Otherwise, ‘judge-shopping’ may be encouraged, as noted by Mason J in Re JRL; Ex parte CJL [1986] HCA 39(1986) 161 CLR 342:

“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.”

As the majority of the High Court noted in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63:

“Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.”

Where “numerous separate aspects are relied upon to suggest a reasonable apprehension of bias, it will usually be necessary to assess the individual elements separately and then cumulatively”: Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499[2010] NSWCA 240 at [176] (Basten JA, with Allsop P and Macfarlan JA agreeing); see also Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577[2006] HCA 55 at [114]IOOF Australia Trustees Ltd v SEAS Sapfor Forests Pty Ltd (1999) 78 SASR 151[1999] SASC 249 at 192; Tarrant J, Disqualification for Bias (Federation Press, 2012), 301.

Historically

Originally, a party asking a judge to step aside was required to show that “there is a real likelihood that the judge would, from kindred or any other cause, have a bias in favour of one of the parties”: per Blackburn J. in Reg. v. Rand (1866) LR 1 QB 230, at p 233.

Similarly, in Reg. v. Camborne Justices; Ex parte Pearce (1955) 1 QB 41, at pp 47-51, it was held that it is necessary for the applicant to show a real likelihood of bias. The same view was taken in Reg. v. Barnsley Licensing Justices; Ex parte Barnsley and District Licensed Victuallers’ Association (1960) 2 QB 167, at p 187 where Devlin L.J. said that it is immaterial what impression might have been left on the minds of the applicants or of the public generally, and that it was not enough that an impression that the tribunal had been biased might reasonably get abroad.

However, Lord Esher M.R. in Allinson v. General Council of Medical Education and Registration [1894] UKLawRpKQB 36; (1894) 1 QB 750, at p 759 held that it was sufficient to show a judge may “reasonably be suspected of being biassed”.

In Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon [1968] EWCA Civ 5; (1969) 1 QB 577, Lord Denning M.R. rejected the views expressed in Reg. v. Camborne Justices and Reg. v. Barnsley Licensing Justices, and said that:

“… in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand. … Nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough …. There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased.'”

It is now settled law that a judge will be disqualified if either there is likely actual bias or an apprehension of bias.

Actual bias

Demonstrated or actual bias is the harder requirement to establish, because accusing a judge of being biased is a serious allegation and the case law shows judges will ordinarily be assumed to have put any matters that may affect their impartiality to one side in deciding cases before them. As was noted in  Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98, “A finding of actual bias is a grave matter” and “Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required”.

See also Kamano & Kamano [2015] FamCAFC 111.

It was noted by Kirby J in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 at [109]:

“It is rare indeed for this defect to be claimed, doubtless for reasons which include prudence, politeness and difficulty of proof”

Furthermore, pecuniary interests no longer automatically disqualify a judge. The cases of Dimes [1852] EngR 789 and Reg v Rand (1866) LR 1 QB 230 were demonstrations of this principle.

In Dickason v Edwards [1910] HCA 7(1910) 10 CLR 243 Isaacs J said, (at 259):

“One disqualification is pecuniary interest. If that exists there is an end of the matter at once and the Court goes no further.”

That position was overruled by the majority of the High Court in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 (cf Kirby J’s dissent at [162]).

Courts have generally refused to enter into enquiry as to whether a decision maker was actually biased, reasonable apprehension of bias being sufficient to require disqualification: Watson at 258 per Barwick CJ, Gibbs, Stephen and Mason JJ; Re JRL at 356-357 per Mason J; Webb v The Queen (1994) 181 CLR 41 at 73 per Deane J; Singh v Minister for Immigration and Ethnic Affairs, unreported, FCA/Lockhart J, 18 October 1996.

In Wannakuwattewa v Minister for Immigration and Ethnic Affairs, unreported, FCA/North J, 24 June 1996 the applicant applied for review under para 476 (1) (f). North J said:

“The applicant contended that the decision of the Tribunal in this case was affected by actual bias. This involves demonstrating that the Tribunal did not, in fact, bring an unbiased mind to the issues before it. It means that the applicant must show that the Tribunal had a closed mind to the issues raised and was not open to persuasion by the applicant’s case.” (at 4)…

“… actual bias involves the state of mind which prevents any persuasion to a view different to the one then held by the decision maker.”

(at 9)

In Reg. v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd. [1953] HCA 22; (1953) 88 CLR 100 it was held that a delegate of the Australian Stevedoring Industry Board was not disqualified from holding an inquiry because he had made some comments from which it might well have been inferred that he had prejudged some aspects of the case. Dixon C.J. and Williams, Webb and Fullagar JJ. said in their joint judgment (1953) 88 CLR, at p 116:

“But when bias of this kind is in question, as distinguished from a bias through interest, before it amounts to a disqualification it is necessary that there should be strong grounds for supposing that the judicial or quasi-judicial officer has so acted that he cannot be expected fairly to discharge his duties. Bias must be ‘real’. The officer must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons. It has been said that ‘preconceived opinions – though it is unfortunate that a judge should have any – do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded’, per Charles J., Reg. v. London County Council; Ex parte Empire Theatre (1894) 71 LT 638, at p 639 .”

Apprehension of bias

The oft-repeated saying of Lord Hewart C.J. in R. v. Sussex Justices; Ex parte McCarthy [1923] EWHC KB 1; (1924) 1 KB 256, at p 259 : “It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

Similar principles apply with respect to the disqualification of jurors: Webb & Hay v R [1994] HCA 30; (1994) 181 CLR 41; (1994) 122 ALR 41; (1994) 68 ALJR 582.

In Ebner v The Official Trustee in Bankruptcy [2000] HCA 63, a majority of the High Court of Australia said that:

“The apprehension of bias principle admits of the possibility of 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.”

Apprehended bias will not generally be established by “pointing to adverse findings” in the judgment, even where the findings involve strong adverse credit findings: Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 at [234] (Ward JA, Basten JA and Emmett AJA agreeing). Similarly, the fact that “a judge has not accepted submissions, or has taken a view of evidence in a way that one of the litigants disagrees with or asserts is wrong in principle, is not enough to establish a reasonable apprehension of bias”: Knaggs v Director of Public Prosecutions (NSW) (2007) 170 A Crim R 366[2007] NSWCA 83 at [95]

Prejudgment

In R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 (3 August 1976), the trial judge had made the comments that expressed a negative view of the credit of both the husband and the wife and made it clear to both he required corroboration of their evidence for it to be accepted. The High Court majority held that:

“The question is not whether there was a real likelihood that Watson J. was biased. The question is whether it has been established that it might reasonably be suspected by fair-minded persons that the learned judge might not resolve the questions before him with a fair and unprejudiced mind. (at p264)”

The wife’s appeal was successful with the majority concluding that:

“The formation of a preconceived opinion that neither party is worthy of belief amounts to bias in the sense in which that word is used in a number of the authorities already cited. To form such an opinion is to predetermine one of the issues in the case, and may operate unfairly against one party, even though both are discredited. A prejudice against the credit of both parties will not necessarily damage both parties equally. It will prove more damaging to that party who wishes to establish a fact by means of his or her own unsupported evidence. A party who believes, on reasonable grounds, that the judge has decided, in advance, to disbelieve her evidence cannot have confidence in the result of the proceedings, even if the judge has decided to reject the evidence of her adversary as well.”

In Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, the NSW Court of Appeal had struck off a barrister after making findings he had been knowingly involved in a conspiracy with Wendy Bacon to have a prisoner named Stephen Sellers unlawfully released from prison with his own cash surety of $10,000. Two of those members of the NSW Court of Appeal had previously made findings on credit against the barrister in refusing Bacon’s admission to the Bar and had refused to recuse themselves before again making the same credit findings. The High Court unanimously held that:

“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.”

The appeal was allowed, however Livesey was subsequently struck off again.

In Vakauta v Kelly, Hunt J’s adverse comments about an insurer’s expert witnesses in a personal injuries trial, including “that unholy trinity”; the insurer’s “usual panel of doctors who think you can do a full week’s work without any arms or legs”; whose “views are almost inevitably slanted in favour of [the insurer by whom they have been retained, consciously or unconsciously”. The majority of the High Court held that because Hunt J had ‘effectively revived’ those views in his reserved judgment, that decision was tainted by apprehension of prejudgment or bias.

In Johnson v Johnson (2000) 201 CLR 488, five High Court judges observed that while the fair‑minded lay observer “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 trial judge had made the following comments that led to one of the parties objecting to him presiding over the trial:

“Well, [let] me go back to what I said at the very beginning … is that I will rely, principally, on witnesses other than the parties in this matter – and documents – to determine where the truth lies; and any other documents that are available to assist me in that regard, I’ll be grateful to receive. I’m not vacating my earlier order; and I am adjourning.”

It was held by the majority that in its proper context this comment was not to be understood as intending to express a concluded view on the credibility of either party and “His expectation as to the importance of independent evidence, and documentary material, was understandable”.

Pecuniary interest

In Clenae Pty Ltd v ANZ Banking Group Ltd, it was held by a majority of the High Court that a judge being a customer of a large bank and his wife owning shares in that bank did not necessarily disqualify him:

“There are many possible forms of association, personal, social, financial, or ideological, that might exist between a judge and a litigant, or someone concerned in litigation. Such association may, or may not, have the potential to bring into question the independence or impartiality of the judge. It may, or may not, give rise to a suggestion that a judge has an interest in the outcome of proceedings.”

On the other hand, in Millar v Dickson [2001] UKPC D4[2002] 1 WLR 1615., the appellants had had their respective cases heard by temporary sheriffs, who, it had since been held, could not be regarded as independent and impartial because of their lack of security of tenure.

Prior involvement

In Dunstan v Orr [2022] FCA 1006, Wigney J observed that:

“where the alleged apprehension of bias is said to arise from case management or interlocutory decisions, there must be strong grounds for inferring the existence of a reasonable suspicion and a reasonable apprehension of bias must be firmly established.”

As mentioned above, in Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, the High Court held that two members of the NSW Court of Appeal who had previously made findings on credit against one of the parties in earlier proceedings relating to the same matters were disqualified for apprehended bias.

However, in Michael Wilson & Partners Limited v Nicholls [2011] HCA 48, it was held that a Judge’s making of an ex parte interlocutory order does not, of itself, preclude him or her from sitting on the trial of that matter. The majority also concluded that:

“The fact that Einstein J made several ex parte interlocutory orders and on each occasion directed that those applications, the material in support, the reasons for making the orders and the orders themselves not be disclosed to one side of the litigation did not found a reasonable apprehension of prejudgment of the issues that were to be fought at trial. It may well be that the directions not to disclose material should not have been left in force for as long as they were. Perhaps they should not have been made at all. But if their making or the failure to limit their duration was wrong, that did not found a reasonable apprehension of bias.”

Involvement with Counsel

Also, Counsel’s relationship with opposing Counsel can also result in a fair trial not being had: see R v Szabo [2000] QCA 194 (26 May 2000).

In Adacot and Sowle [2020] FamCAFC 215, it was held that a Judge’s bullying of Counsel and subsequently solicitor for one of the parties during a trial gave rise to an apprehension of bias.

In Charisteas v Charisteas [2021] HCA 29, it was held that the Full Court of the Family Court had erred by holding that a fair-minded lay observer would be aligned with the legal profession, and a Judge’s private communications with Counsel for one of the parties while judgment was reserved amounted to an apprehension of bias.

Exceptions

Statutory authority

Isaacs J. in Dickason v. Edwards (1910) 10 CLR 243 discussed the nature of statutory authority:

“In statutory tribunals, that rule is absolute unless the Statute provides, as in some cases, that persons who are only formally parties may nevertheless sit as judges. This is so with licensing tribunals and members of the London County Council, when they sit to determine on the grant of certain licences; but the rule prevails in case of statutory tribunals, except so far as the Statute shows a contrary intention.”

The rule of necessity

The rule of necessity is a related concept. As Mason CJ and Brennan J said in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 89:

“The rule of necessity gives expression to the principle that the rules of natural justice cannot be invoked to frustrate the intended operation of a statute which sets up a tribunal and requires it to perform the statutory functions entrusted to it. Or, to put the matter another way, the statutory requirement that the tribunal perform the functions assigned to it must prevail over and displace the application of the rules of natural justice. Those rules may be excluded by statute: Twist v Randwick Municipal Council; Salemi v MacKellar [No 2]; FAI Insurances Ltd v Winneke.”

Waiver

Parties to proceedings may waive an objection to their case being decided by a judge about whom there might be a reasonable apprehension of bias. A failure to object to first instance may lead to a finding of waiver.

In Dickason v Edwards [1910] HCA 7(1910) 10 CLR 243 Isaacs J said, (at 260):

“So that the principle seems to me to be this – that, if the person whose presence is challenged can fairly be said to be biassed (sic), either by reason of his necessary interest or by reason of some pre-determination he has arrived at in the course of the case, then he ought not to act unless there is something to relieve him from these disqualifications. Even in a public prosecution a party may waive the objection. One of the strongest examples of this is the case of Wakefield Local Board of Health v West Riding and Grimsby Railway Co … . There the Statute provided that the justices should be disinterested parties, but the words were held not necessarily to prevent waiver. A distinction has been drawn between public judicial tribunals and private judicial tribunals, but I am not satisfied that that is a sound distinction.”

In Vakauta v Kelly [1989] HCA 44(1989) 167 CLR 568. Dawson J, quoting the above passage from Isaacs J said (at 577):

“There can, I think, be no doubt that an objection upon the ground of bias can be waived. Even where it is a question of the public apprehension of bias, the parties themselves must be competent to waive the objection. Although justice must manifestly be seen to be done, where a party, being aware of his right to object, waives that right, there will be little danger of the appearance of injustice. In the case of a criminal prosecution where the public is directly interested in the outcome, it may be different, but even in such a case, Isaacs J, in Dickason v Edwards … was clearly of the view that a party may waive the objection.”

An exception to this general rule is when the conduct objected to occurred throughout a trial as opposed to in a particular moment in it.

In Jorgensen v Fair Work Ombudsman [2019] FCAFC 113(2019) 371 ALR 426, the Full Court of the Federal Court said that:

[96] … It is, however, questionable whether the failure to object in the particular circumstances of this case would have constituted a form of waiver… That is because the interventions occurred throughout the trial and it may in those circumstances have been difficult to identify a particular point in time when objection should have been taken…

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