Case: Johnson v Johnson [2000] HCA 48 ; (2000) 201 CLR 488
Outcome: applied
The test to be applied is not in dispute. It was laid down by the High Court in Johnson v Johnson [2000] HCA 48 ; (2000) 201 CLR 488 at [11] namely: "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." 39 In the present case, although the apprehended bias application is based entirely on remarks in the evidence ruling and trial judgment, the hypothetical lay observer must be credited with knowledge not only of those remarks but what the Full Court said in its first and second judgments. The fair minded observer is not "a person wholly uninformed and uninstructed about the law in general or the issue to be decided": Johnson at [53]. 40 The lay observer would be aware that Cadbury had criticised the remarks in question, and had on two occasions sought a trial de novo before another judge. The lay observer would understand that the Full Court saw no problem in having the matter further considered by me. In particular the observer would consider what the Full Court said in its second judgment at [112] [114] quoted above and the observation of Emmett J, speaking for the Court, in the course of argument (see [30] above). 41 The observer, in considering the criticisms of the utility of expert opinion in consumer cases I have made on policy grounds, would see from reading the first Full Court judgment that similar views had been expressed by other judges of the Federal Court, and had been referred to by the Full Court in the present case without any disapproval. 42 The observer would see that, while there were critical comments on some aspects of Dr Gibbs' evidence, read as a whole and in context the real thrust of the remarks in the evidence ruling was concerned with the effects of expert evidence of this kind in this kind of case, in other words with the policy rationale for what the judge thought the law to be wrongly, as it turned out. Regrettably, the primary judge proceeded upon the assumption that this evidence would not be admissible at common law, an assumption which the Full Court accepted (the heading of s 80 tells us "Ultimate issue and common knowledge rules abolished"). The primary judge should have been aware of s 80(b) , and counsel should have directed his attention to it. Judges, like other citizens, do not always agree with laws. But judges have to administer the law as it stands. The observer would think, as did the Full Court, that this will happen in the present case. 43 Of course there are practical problems. The reasonable lay observer would recognise the difficulty of a judge's task in taking into account new evidence when he or she has already reached a decision on a great deal of other evidence, including, although not limited to, evidence going to the same issues as the wrongly excluded evidence. But that is inherent in the power given by s 28(1)(c) of the Federal Court of Australia Act 1976 (Cth) which gives explicit powers to Full Courts to do what the Full Court has done in the present case. 44 Cadbury's motion will be dismissed with costs. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice HEEREY. Associate: Dated: 16 August 2007 Counsel for the Applicant: W T Houghton QC and M D Wyles Solicitors for the Applicant: Mallesons Stephen Jaques Counsel for the Respondent: C D Golvan SC and S Ricketson Solicitors for the Respondent: Middletons Date of Hearing: 9 August 2007 Date of Judgment: 16 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1245.html