Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2009] FCAFC 8
Outcome: applied
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 &amp; 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]