Bias may involve actual or apprehended bias.

A judge affected by actual bias would be unable to comply with the Judicial Oath, and would be disqualified from sitting. In such a case, the question for determination is whether there is bias in fact. See Collier v Country Women's Association of NSW [2018] NSWCA 36 at [27]–[46] for a summary of the relevant principles.

The test for determining whether a judge should disqualify himself or herself by reason of apprehended bias is the objective “double might” test: “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide [emphasis added]”: Johnson v Johnson (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; applied in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; Charisteas v Charisteas (2021) 273 CLR 289 and QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 at [50], [175], [292]; distinguished in British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; see also Slavin v Owners Corporation Strata Plan 16857 [2006] NSWCA 71; Barakat v Goritsas (No 2) [2012] NSWCA 36 and Isbester v Knox City Council (2015) 255 CLR 135. The resolution of the relevant question is not to be assessed with the benefit of hindsight, but at the time of the event or events said to give rise to that possibility in the first place: Feldman v Nationwide News Pty Ltd [2020] 103 NSWLR 307 at [41]–[43] (citing Ebner at [7]–[9], [33]).

The application of the test requires two steps: first, “it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits”; and, second, there must be articulated a “logical connection” between that matter and the feared departure from the judge deciding the case on its merits: Ebner at [8]. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed: Ebner at [8]; Charisteas at [11].

See also Chamoun v District Court of NSW [2018] NSWCA 187 per Gleeson JA at [39] (citing Tarrant v R [2018] NSWCCA 21) for discussion as to the four discrete elements required for the “double might” test and Polsen v Harrison [2021] NSWCA 23 at [46] for a useful summary of the principles that are to be applied in an application for recusal for apprehended bias.

As to the former association of the judge with legal representatives and litigants, see Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43. As to an example of where a fair-minded observer would likely be concerned about a current close personal relationship between judge and a prosecutor connected with the proceedings, see Gleeson v DPP (NSW) [2021] NSWCA 63 at [29]. As to the relevance of non-disclosure to issues of apprehended bias, see Whalebone v Auto Panel Beaters & Radiators Pty Ltd (in liq) [2011] NSWCA 176; see also Maules Creek Coal Pty Ltd v Environment Protection Authority (2023) 112 NSWLR 507 where at [113] it was held (citing Ebner at [69]) that “judges should disclose matters if there is a serious possibility that they are potentially disqualifying”. As to a party being a member of the trial court, see Rouvinetis v Knoll [2013] NSWCA 24.

As to inappropriate contact or communication between the judge and a party’s barrister during proceedings and while judgment was reserved which would cause a fair-minded lay observer to reasonably apprehend that the judge might not bring an impartial mind to the matter, see Charisteas v Charisteas at [12], [15], [21]–[22].

An intermediate appellate court dealing with allegations of apprehended bias should address the issue of bias first as the necessary result, if bias is established, is a retrial: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [2]–[3], [117].

Present authority supports the proposition that an application for disqualification can be made without the filing of a formal motion (Barton v Walker [1979] 2 NSWLR 740; Bainton v Rajski (1992) 29 NSWLR 539), although there have been instances where a motion has been presented.

Such authority also supports the view that such an application should be determined by the judge whose disqualification is sought, and should not involve a contest on the facts: Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 436 and Wentworth v Graham [2003] NSWCA 240.

The procedure to determine bias in a multi-member court is not settled: see obiter dicta in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 where Kiefel CJ and Gageler J considered the objection to jurisdiction on the ground of apprehension of bias ought to have been considered and determined by the Full Court rather than by the individual judge alone; Gordon, Edelman, Steward and Jagot JJ considered that the judge the subject of the recusal application should consider the issue first, personally and independently of other members of the court; and Gleeson J found it unnecessary to express an opinion as the matter was the subject of possible law reform.

As to the approach to be adopted where there are disputed issues of fact, see CUR24 v DPP (2012) 83 NSWLR 385. In that case, it was held that where there is plausible evidence as to an out of court statement or other conduct of a judicial officer, the relevant principles do not require a court exercising appellate or supervisory jurisdiction to first resolve, by making findings of fact, any dispute about what was said or done before applying the fair-minded bystander test. Rather, the objective assessment called for by the test should take account of the dispute and whether the evidence, if accepted, is sufficient to give rise to a reasonable apprehension of bias: at [41], [52]. A judge asked to disqualify himself or herself may need to apply the fair-minded observer test in respect of the evidence, in other words, unless the hypothetical observer would reject the evidence as entirely implausible the judge should consider whether, if accepted, it had the relevant quality to raise a reasonable apprehension of bias: [22], [38], [44]. The denial of a judge alleged to have made a relevant statement cannot settle the question which depends upon the view of a fair-minded observer: [22].

A refusal by a judge to accede to an application for disqualification can be relied upon as a ground of appeal in relation to the substantive judgment. However, the conventional view has formerly been that no appeal lies from the rejection of a refusal application as such although a litigant could usually find an interlocutory order upon which to base an appeal: Barton v Walker and Barakat v Goritsas [2012] NSWCA 8 at [10].

Following strongly expressed obiter dicta in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [74]–[86] and the decision of the Court of Appeal in Barakat v Goritsas (No 2) [2012] NSWCA 36 that is no longer the position. Further, “it will frequently be appropriate to grant leave to appeal, assuming the challenge is not patently untenable and where a long and costly trial would be avoided if the decision below were incorrect”: Barakat v Goritsas (No 2) at [64].

Failure to seek such leave may found an issue of waiver: Michael Wilson & Partners Ltd v Nicholls at [74]–[86].

In respect of refusal by judicial officers of the District Court and Local Court the discretionary remedy of an order in the nature of prohibition may be available.

Generally an application should be made as soon as reasonably practicable after the party seeking disqualification becomes aware of the relevant facts. Otherwise the right to do so may be waived: Vakauta v Kelly (1989) 167 CLR 568; Cassegrain v Commonwealth Development Bank of Australia Ltd [2003] NSWCA 260 and Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88 per Basten JA at [23]–[34].

Where there are matters that might properly arise for consideration, which are known to the judge, it is desirable that they be drawn to the attention of the parties, even if it is believed that they are aware of them: S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 and Dovade Pty Ltd v Westpac Banking Corporation (1999) 46 NSWLR 168 at [105]–[107].

In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, the High Court recognised that there are exceptions for necessity, or where there are special circumstances, or where there is consent. For a discussion on the exceptions, see Australian National Industries Limited v Spedley Securities Ltd (in liq), above.

An indication by a party that it wishes a judge to disqualify himself or herself is not of itself a proper ground for the judge to recuse: Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45.

Judges are required to discharge their professional duties unless disqualified by law. They should not accede too readily to applications for disqualification, otherwise litigants may succeed in effectively influencing the choice of judge in their own cause: see Re JRL; Ex p CJL (1986) 161 CLR 342 at 352; Attorney General of New South Wales v Lucy Klewer [2003] NSWCA 295; Ebner v Official Trustee, above, at [19]–[23]; and Raybos Australia Pty Limited v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272.

Where a legal representative does object to the conduct of a judge, or contends actual or apprehended bias on the part of the judge, there is an obligation to endeavour to have those objections and contentions noted and recorded.

Inter alia, this may assist in a correction of an attitude which has possibly gone too far; at the least it will make the complaint easier for resolution if the matter goes to appeal: Goktas v GIO of NSW (1993) 31 NSWLR 684.

Where there is a finding of apprehended bias in a multi-member court, the full court will be deprived of jurisdiction to hear and determine the appeal even if the decision was in fact unanimous: QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [57], [65], [188], [301], [304].

The conduct of the trial judge involving adverse observations, in relation to one party’s case, or in relation to witnesses called by that party, especially where adverse findings are also made against that party or witnesses without proper substantiation, may lead to disqualification, see Mistral International Pty Ltd v Polstead Pty Ltd [2002] NSWCA 321 and Damjanovic v Sharpe Hume & Co [2001] NSWCA 407, see also Vakauta v Kelly, above, where remarks made by the trial judge critical of evidence given by the defendant’s medical witnesses, in previous cases, which were effectively revived by what was said in the reserved judgment, arose for consideration.

It does not, however, follow that trial judges must sit in stony silence, without exposing their views, at risk of being accused of bias. The expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias; whether judicial interventions and observations exceed what is proper and reasonable expression of tentative views is a matter of judgment taking into account all of the circumstances of the case: Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577 at [112]. Genuine engagement and debate about critical issues is permissible: Re Keely; Ex p Ansett Transport Industries (Operations) Pty Ltd [1990] HCA 27; Barbosa v Di Meglio [1999] NSWCA 307 and Odtojan v Condon [2023] NSWCA 129 at [45]–[46], and “critical, strong and candid” judicial statements will not necessarily lead to a finding of bias: Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd at [180]; see also NSW v Madden [2024] NSWCA 40 at [108]. However, undue interference by a judge, for example, in questioning parties or witnesses, or in taking up the arguments of one party, may cross the line, as can expressions of opinion as to the likely outcome of the case prior to the conclusion of the evidence and submissions. For guidelines concerning the extent to which judicial intervention is or is not permissible, see Galea v Galea (1990) 19 NSWLR 263 at 281–282 and Royal Guardian Mortgage Management Pty Ltd v Nguyen, above.

The fact that the judge has had communication with a party, a witness or a legal representative, at or about the time of the hearing, in the absence of, and without the consent or approval of the other party, can also lead to disqualification: Re JRL Ex p CJL, above. See also Royal Guardian Mortgage Management Pty Ltd v Nguyen.

In Maules Creek Coal Pty Ltd v Environment Protection Authority (2023) 112 NSWLR 507, the judge had a brief private meeting in chambers with a person mistakenly thought to be a law student, but who, unknown to the judge, was a longstanding and active campaigner against Maules Creek Coal and whose interests were aligned with the Environment Protection Authority. Nothing of substance connected to the case was discussed. The Court of Appeal held at [106]–[108] that the circumstances did not suffice to establish that the fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions the judge was to decide.

An increasingly common potential source of difficulty is the use of email to communicate with a judge’s chambers. A useful set of guidelines was given in Ken Tugrul v Tarrants Financial Consultants Pty Ltd (In liq) (No 2) [2013] NSWSC 1971:

It is desirable for judges to have developed a clear policy with their own staff as to when emails or any other written communications received from or on behalf of litigants are shown to the judge. It is not appropriate for that decision to be left to staff without guidance from the judge: Stanizzo v Bardane [2014] NSWSC 689 at [73]–[80]. See also M Groves, “Emailing judges and their staff” (2013) 37 Aust Bar Rev 69.

The fact that a judge has decided an issue in a particular way and is likely to decide it in the same way when it arises again, does not necessarily give rise to apprehended bias: Fitzgerald v Director of Public Prosecutions, above, but see also Kwan v Kang, above.

Complained of conduct should be considered in the context of the trial as a whole and the possibility of the dissipation of effect or express withdrawal of material taken into account: Jae Kyung Lee v Bob Chae-Sang Cha, above, at [32]. Jae Kyung Lee v Bob Chae-Sang Cha contains a useful discussion of disqualification for apprehended bias.

No action lies against a judge for damages in consequence of bias, in respect of acts done in the performance of judicial duties: Gallo v Dawson (1988) 63 ALJR 121 and Yeldham v Rajski (1989) 18 NSWLR 48. The Registrar has the same protection and immunity by reason of s 44C of the Judicial Officers Act 1986 (NSW).