Case: Livesey v New South Wales Bar Association [1983] HCA 17 ; (1983) 151 CLR 288
Outcome: referred to
In Livesey 151 CLR at 293-294 the High Court referred to the principle laid down in R v Watson; Ex parte Armstrong [1976] HCA 39 ; (1976) 136 CLR 248 at 258-263 as follows: 'The principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.' This Court has adopted such principle in relation to matters arising in reviews under the Act: see NAHD of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264 at [14] per Allsop J; see also: Ex parte H [2001] HCA 28 ; 179 ALR 425. In J.R.L.; Ex parte C.J.L [1986] HCA 39 ; (1986) 161 CLR 342 at 351-352, Mason J said: 'The problem is governed by the principle that a judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial an unprejudiced mind to the resolution of the issues: Reg v Watson; Ex parte Armstrong (25); Livesey v NSW Bar Association (26) . This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free of bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done.' This principle has been repeatedly followed: see for example Re Polites: Ex parte Hoyts Corporation Pty Ltd (No 2) [1991] HCA 31 ; (1991) 173 CLR 78 at 85 and Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd (1992) 6 ALJR 583. In Galea v Galea (1990) 19 NSWLR 263 at 277 Kirby A-CJ said: 'But Vakauta and Grassy v The Queen (1989) 63 ALJR 630; 87 ALR 618, amount to timely reminders by the High Court of Australia of the high importance attached in the administration of justice in this country to the avoidance of pre-judgment or the appearance to the reasonable lay observer that a judge will approach his or her duties without complete impartiality. Confidence in judicial determinations would be shaken were insistence upon that feature of the judicial resolution of disputes in any way to be lessened. Vakauta and Grassy restate the importance attached to this abiding value of our legal system.' 25 There is no obligation on a Tribunal member to maintain a neutral state of mind during the entire course of a review of a delegate's decision. However it is critical that the Tribunal does not close its mind to any additional material that might possibly prove probative: see SZGMF [2006] FCAFC 138 at [21] . If the decision maker's mind is closed, ' no hearing really takes place ': see Kanda v Government of Malaya [1962] AC 322 at 337 per Lord Denning MR. Because of the inquisitorial nature of Tribunal proceedings, the threshold for a finding of apprehended bias is necessarily higher than it is in curial proceedings (see NADH 214 ALR at 269 per Allsop J), but it is sufficient if the parties or the public 'might entertain a reasonable apprehension': see Kirby J in Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 at [111]. The accepted standard of proof for such finding is one of ' real possibility' : see Livesey 151 CLR at 294. 27 In view of the adverse findings made by the Tribunal member relating to the credit of the appellant, the withdrawal of the first decision gives no confidence that an impartial mind could be brought to hear the further enquiry. Apprehension of bias has been found to exist in proceedings where an adjudicator has made previous findings as to a witness's credit on the same set of facts: see Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 422, 447; Livesey [1983] HCA 17 ; 151 CLR 288; Grassy v The Queen [1989] HCA 45 ; (1989) 168 CLR 1; Ex parte Schofield; Re Austin (1953) 53 SR (NSW) 163; Hosler v Maughan (1989) A 40 Crim R 281; Khadem v Barbour (1995) 38 ALD 299.