Case: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337
Outcome: cited
In relation to an alleged apprehension of bias on the part of a judge, Kirby and Crennan JJ said in Concrete Pty Ltd v Parramatta Design &amp; Developments Pty Ltd [2006] HCA 55 ; (2006) 229 CLR 577 ('Parramatta Design') at [110]-[112]: '110 The appeal [in Parramatta Design] involves the application of well-established principles, which were not in dispute and were both reiterated and explained in Ebner v Official Trustee in Bankruptcy in the joint reasons of Gleeson CJ, McHugh, Gummow and Hayne JJ: "Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge ..., 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 principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the Tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle ... 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 ... 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." 111 In assessing the logical connection between a matter complained of and any deviation from deciding a case on the merits, (the "second step" in Ebner v Official Trustee in Bankruptcy) it is important to bear in mind the characteristics of modern litigation as recognised by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson: " Whilst the fictional observer, by reference to whom the test is formulated, 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 rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly , Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of 'the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case'. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them. " 112 Sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case. However, one thing that is clear is that 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.' (Footnotes omitted) 15 In Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 ('Ebner') which was cited with approval by Kirby and Crennan JJ in Parramatta Design , Gleeson CJ, McHugh, Gummow and Hayne JJ said at [7]: '7 The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the Tribunal be 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. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.' 64 In relation to (c) it is important to bear in mind what was said by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner at [7] (see [15] above): '... if the matter has already been decided, the test [for apprehended bias] is one which requires no conclusion about what factors actually influenced the outcome.' 65 Federal Magistrate Raphael handed down his reasons for judgment in respect of the Amended Application on 29 May 2008. His Honour ordered that the application be dismissed and that the applicant pay the respondent Minister's costs assessed in the sum of $5,000. 66 The appellant was represented in the Federal Magistrates Court by Dr J E Griffiths SC and the respondent Minister by Mr M A Izzo of counsel. On the hearing of the appeal from the judgment of Federal Magistrate Raphael, Dr Griffiths SC again appeared for the appellant, on this occasion with Mr C N Bova of counsel, and Mr Izzo again appeared for the respondent Minister. 67 The appeal was instituted by a Notice of Appeal filed 11 June 2008. Once again the appeal was confined to the issue of whether the appellant had been denied natural justice on the basis that the third Tribunal member, Giles Short, had reached a decision which was not free from any reasonable apprehension of bias. No submission was put suggesting that the Tribunal Member's decision had been affected by actual bias. 68 The appellant's grounds of appeal were summarised by his senior counsel in oral submissions as follows: '... there are three separate grounds that are raised and they can be succinctly stated along the following lines. The first raises a complaint that the federal magistrate applied the incorrect test for apprehended bias. The second is a complaint that the federal magistrate, at times, seems to have treated the particulars of the apprehended bias as though they were individual judicial review grounds in their own right; leading him to then call in aid and apply principles relating to the limits on fact-finding or the limits on reviewing decisions for illogicality as somehow being relevant to him disposing of the apprehended bias case. There were particulars of apprehended bias not being advanced as individual heads of review whether it be illogicality or no evidence or whatever in their own right. That was not the way that they were being presented. ... The third ground ... says that [i]f the correct test is applied, namely a 'might might' test ... as opposed to a 'would' test then [,] applied to these facts [,] the ultimate conclusion was wrong. ...' 78 In relation to the application of the apprehended bias test to the facts, it must be remembered that his Honour was not concerned with an allegation of actual bias. In a case of alleged apprehended bias, possibility is the primary concern not actuality, viewing the matter with the benefit of hindsight (see Ebner at [7] as quoted at [15] above). 79 What his Honour appears to have done at [26], in my view impermissibly, was to have regard to the conclusions actually reached by the third Tribunal member with a view to considering whether a hypothetical lay observer would or might reach the same conclusions. The observation 'I do not see in [the Tribunal's] findings a pattern which would suggest to the hypothetical lay observer a closed mind' could only be relevant to a claim of actual bias and no such claim is advanced here. The apprehended bias test requires no conclusion about what factors actually influenced the outcome. 80 What his Honour should have focussed upon was whether a hypothetical fair-minded lay person, properly informed as to the nature of the application for review and the processes of the Tribunal, might have reasonably apprehended, either as at 17 September 2007 or at some stage thereafter, but before 7 November 2007 that the third Tribunal member might not bring an impartial mind to the questions which he had to decide. 81 Insofar as the appellant sought to place reliance upon findings actually made by the third Tribunal member, he, in my opinion, approached the matter the wrong way given that the issue which he had tendered was one of apprehended bias. 82 In relation to the attack upon the learned Federal Magistrate's approach of isolating the particulars relied upon and treating them as individual grounds for judicial review in their own right, I do not think there is any substance in the appellant's case. This is made abundantly clear by what was said by the learned Federal Magistrate at [24]: '24 I have dealt above individually with the matters raised by the applicant as indicating that the Tribunal might be considered by the hypothetical lay person to have approached this matter with a fixed mind intent upon finding against the applicant, whatever he might have said. The applicant, rightly in my view, relies on the cumulative effect of all these matters and argues that even if there is an explanation for each of them individually, then cumulatively they would have the necessary effect upon the lay observer's mind. ...' 83 Turning to the question of whether, applying the correct test for apprehended bias to the facts of this case, a finding of apprehended bias should be made, I am of the opinion that no such finding would be appropriate. 84 If one turns to the transcript of the hearing before the third Tribunal member it seems clear to me that the third Tribunal member explored those aspects of the appellant's account that the Tribunal member considered to be important to the decision, which he was required to make, and which might be open to doubt. In doing so he tested the evidence presented by the appellant. However, he did not test the evidence so vigorously that the testing might be seen to have become overbearing or intimidatory. Furthermore the Tribunal member did not appear to me to have interrupted the appellant in a way which might have conveyed a preconceived view that the appellant's account of the events was such that there was nothing that he could say or do which might change that view. 85 One also finds in the transcript that the Tribunal member probed the identity of the person who posted a $25,000 security to obtain the appellant's release from detention in September 2005 (at page 5.5). The Tribunal member explored the conflicting accounts as to how the appellants claimed friend Mr Li had been run off the road (at pages 7-8). The Tribunal member proceeded to question the appellant about his claimed involvement in a 10 October 2003 demonstration, the location of it and the significance of it (at pages 10-16). The Tribunal member then questioned the appellant about his travel documents (at pages 16-18) and the Tribunal member questioned the reasons for the appellant leaving the People's Republic of China in circumstances where his brother was already living in Australia (at page 18). 86 After questioning the appellant about these matters the Tribunal member invited the appellant's migration agent to raise matters that may not have been covered. He said: 'Miss Stoltz is there anything we have not covered?'