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Jae Kyung LEE v Bob Chae-Sang CHA & ORS [2008] NSWCA 13 (26 February 2008)

Last Updated: 19 October 2009

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Jae Kyung LEE v Bob Chae-Sang CHA & ORS [2008] NSWCA 13

FILE NUMBER(S):
40778/07

HEARING DATE(S):
7 February 2008

JUDGMENT DATE:
26 February 2008

PARTIES:
Jae Kyung Lee – Claimant
Bob Chae-Sang Cha – First Opponent
Judges of the District Court – Second Opponent
Jik Il Oh – Third Opponent
Yoon Shin Lee – Fourth Opponent
Hak Joo Park – Fifth Opponent
Han Yong Lee – Sixth Opponent
Duk In Kim – Seventh Opponent
Hak Soo Cho – Eighth Opponent

JUDGMENT OF:
Hodgson JA Basten JA Bell JA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 5376/02

LOWER COURT JUDICIAL OFFICER:
Gibson DCJ

LOWER COURT DATE OF DECISION:
12 October 2007

COUNSEL:
D S Wheelhouse SC/T Hughes – Claimant
C Evatt/C J Dibb – First Opponent
M Seck – Fifth Opponent

SOLICITORS:
Gray & Perkins – Claimant
CM Lawyers – First Opponent
I V Knight, Crown Solicitor – Second Opponent
Fifth Opponent - Self-represented

CATCHWORDS:
JUDGES – disqualification – apprehended bias – whether judge indicated prejudgment as to character and credibility of witness – fair minded lay observer – distinction between active case management and expression of tentative views on substantive issues – conduct of judge in relation to litigant in person
JURISDICTION – appeal from refusal by District Court judge to disqualify himself or herself – judgment or order of judge –[District Court Act] 1973 (NSW) s 127
PREROGATIVE RELIEF – prohibition – discretionary relief – intervention in proceedings at interlocutory stage – availability of appeal from final determination in District Court
WORDS & PHRASES – “judgment or order” – [District Court Act] 1973 (NSW) s 127 – “fair-minded lay observer”

LEGISLATION CITED:
Constitution, s 75(v)
[Criminal Appeal Act] 1912 (NSW), s 5F
[Defamation Act] 1974 (NSW), s 7A
[District Court Act] 1973 (NSW), s 127
[Judicial Officers Act] 1986 (NSW)
[Supreme Court Act] 1970 (NSW), ss 69, 101

CATEGORY:
Principal judgment

CASES CITED:
[Ah Toy v Registrar of Companies] (1985) 10 FCR 280
[Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd] (NSWCA 20 May 1996, unreported)
[Anderson v Attorney-General (NSW)] (1987) 10 NSWLR 198
[Australian National Industries Ltd v Spedley Securities Ltd (In liq)] (1992) 26 NSWLR 411
[Barton v Walker] [1979] 2 NSWLR 740
[Bozatsis & Spanakakis] (1997) 97 A Crim R 296
[Brooks v The Upjohn Company] (1998) 85 FCR 469
[Cain v Glass (No. 2)] (1985) 3 NSWLR 230
[The Commonwealth v Mullane] [1961] HCA 28; (1961) 106 CLR 166
[Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd] [2006] HCA 55; (2006) 229 CLR 577
[Ebner v Official Trustee in Bankruptcy] [2000] HCA 63; (2000) 205 CLR 337
[Fish v Solution 6 Holdings Ltd] [2006] HCA 22; (2006) 225 CLR 180
[Galea v Galea] (1990) 19 NSWLR 263
[Gas & Fuel Corporation Superannuation Fund v Saunders] (1994) 52 FCR 48
[Hall v Braybrook] [1956] HCA 30; (1956) 95 CLR 620
[Johnson v Johnson] [2000] HCA 48; (2000) 201 CLR 488
[Johnston v Nationwide News Pty Ltd] [2005] NSWCA 17; (2005) 62 NSWLR 309
[Lamb v Moss] [1983] FCA 254; (1983) 49 ALR 533
[Lawrance v The Commonwealth] [2007] FCA 1524
[Legal Practitioners’ Complaints Committee v A Practitioner] (1987) 46 SASR 126
[Love] (1983) 9 A Crim R 1
[MacPherson v The Queen] [1981] HCA 46; (1981) 147 CLR 512
[Mellifont v Attorney-General (Queensland)] [1991] HCA 53; (1991) 173 CLR 289
[Michael v Western Australia] [2007] WASCA 100
[Moller v Roy] [1975] HCA 31; (1975) 132 CLR 622
[Moss v Brown] [1979] 1 NSWLR 114
[The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd] [1953] HCA 22; (1953) 88 CLR 100
[The Queen v Ross Jones; Ex parte Green] [1984] HCA 82; (1984) 156 CLR 185
[The Queen v Watson; Ex parte Armstrong] (1976) 136 CLR 248
[Rajski v Wood] (1989) 18 NSWLR 512
[Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd] (1986) 6 NSWLR 272
[Re F] [2001] FamCA 348; (2001) 161 FLR 189
[Re Refugee Review Tribunal; Ex parte Aala] [2000] HCA 57; (2000) 204 CLR 82
[Rich v Australian Securities and Investments Commission] [2005] NSWCA 233; (2005) 54 ACSR 365
[Rogerson] (1990) 45 A Crim R 253
[Sankey v Whitlam] [1978] HCA 43; (1978) 142 CLR 1
[Smith v Commissioner of Corrective Services] [1978] 1 NSWLR 317
[Solution 6 Holdings Ltd v Industrial Relations Commission of NSW] [2004] NSWCA 200; (2004) 60 NSWLR 558
[Southern Equities Corporation Ltd (In liq) v Bond] [2000] SASC 450; (2000) 78 SASR 339
[Yule v Junek] [1978] HCA 4; (1978) 139 CLR 1
[Vakauta v Kelly] [1989] HCA 44; (1989) 167 CLR 568
[Webb v The Queen] [1994] HCA 30; (1994) 181 CLR 41

TEXTS CITED:
Aronson, Dyer and Groves, [Judicial Review of Administrative Action], 3rd ed, (2004), pp 714-719
Sir Anthony Mason, [Judicial disqualification for bias or apprehended bias and the problem of appellate review] (1998) 1 CLPR 21 at 22 (col 3)

DECISION:
(1) Dismiss the application for leave to appeal from the decision of Gibson DCJ to continue to hear the proceedings.[ ][ ](2) Dismiss the application for an order in the nature of prohibition restraining Gibson DCJ from continuing to hear the proceedings.[ ][ ](3) Order the Applicant to pay the First Respondent’s costs of the proceedings in this Court.[ ][ ](4) Otherwise dismiss the amended ordinary summons filed on 12 December 2007.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40778/07

DC 5376/02

HODGSON JA

BASTEN JA

BELL JA

26 February 2008

Jae Kyung LEE v Bob Chae-Sang CHA & ORS

Headnote

The present appeal arises from the decision of Gibson DCJ to decline to disqualify herself from the further hearing of proceedings currently pending in the District Court. The plaintiff in the District Court proceedings was the president of the Year 2000 Sydney Olympic Australian-Korean Supporting Committee (‘the Committee”). The proceedings concerned a number of statements in Korean language newspapers published between December 2000 and June 2001 suggesting that the plaintiff had mismanaged the affairs of the Committee. The publisher of the relevant material is the second defendant in the District Court proceedings and the claimant in the present proceedings. Much of the material complained of emanated from the fourth defendant, Mr Park, who was an auditor of the Committee’s financial records.

In the proceedings from which the present appeal is brought, Gibson DCJ, sitting alone, was required to consider defences raised in relation to imputations which had been found by a jury to arise from the publications. The trial was lengthy and exceeded the pre-trial estimates provided to the Court. The length of the trial was due in part to the fact that the plaintiff and fourth defendant did not speak sufficient English to allow any part of the proceedings to be conducted without interpreters and all of the key documents were in Korean. Further, Mr Park was not represented by legal counsel.

On various occasions during the trial, Gibson DCJ expressed frustration with some of the parties, using language which led to a request by counsel for the second defendant that the trial judge recuse herself. The trial judge declined to disqualify herself and the second defendant appealed from that decision.

The issues for determination by the Court of Appeal were:

(i) the availability of an appeal from a decision of a judge of the District Court not to disqualify himself or herself;

(ii) the principles applying to the grant of prerogative relief to intervene in proceedings in the District Court;

(iii) the principles applying to apprehended bias;

(iv) the principles relevant to the conduct of a trial with a litigant in person;

(v) whether the Court should make an order in the nature of prohibition to restrain the trial judge from continuing with the proceedings.

The Court held, dismissing the application:

In relation to (i)
(per Basten JA, Hodgson and Bell JJA agreeing)

1. In refusing to disqualify himself or herself, a judge does not make a judgment or order that may properly be the subject of an appeal: [23].

The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248; Barton v Walker [1979] 2 NSWLR 740, followed.

Brooks v The Upjohn Company (1998) 85 FCR 469; Australian National Industries Ltd v Spedley Securities Ltd (In liq) (1992) 26 NSWLR 411, considered.

Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272; Rajski v Wood (1989) 18 NSWLR 512; Rogerson (1990) 45 A Crim R 253, referred to.

2. It may be doubted whether this Court may decline to apply the principle in The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 on the basis that that case concerned the exercise of judicial power under Chapter III of the Constitution: [26].

Hall v Braybrook [1956] HCA 30; (1956) 95 CLR 620;The Commonwealth v Mullane [1961] HCA 28; (1961) 106 CLR 166; Moller v Roy [1975] HCA 31; (1975) 132 CLR 622 at 639 (Mason J); Yule v Junek [1978] HCA 4; (1978) 139 CLR 1; Mellifont v Attorney-General (Queensland) [1991] HCA 53; (1991) 173 CLR 289; Ah Toy v Registrar of Companies (1985) 10 FCR 280 at 285-286; Bozatsis & Spanakakis (1997) 97 A Crim R 296; Johnston v Nationwide News Pty Ltd [2005] NSWCA 17; (2005) 62 NSWLR 309; Rich v Australian Securities and Investments Commission [2005] NSWCA 233; (2005) 54 ACSR 365; Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (NSWCA 20 May 1996, unreported); Legal Practitioners’ Complaints Committee v A Practitioner (1987) 46 SASR 126, referred to.

(per Hodgson JA)

3. If all that happens is that, in the course of a trial, a judge is asked to disqualify himself or herself and declines to do so, there is no order from which an appeal can be brought. However, there may be circumstances in which a judge declines to disqualify himself or herself in which there is an interlocutory order from which an appeal can be brought, subject to the grant of leave to appeal: [2]-[3].

(per Basten JA, Hodgson and Bell JJA agreeing)

In relation to (ii)

4. Relief in the nature of prohibition is a discretionary remedy: [28].

Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82

5. It may be appropriate to intervene in proceedings where a ground relied upon demonstrates a patent or manifest want of jurisdiction on the part of the tribunal below, or there is no remedy available by way of appeal or other challenge to a final determination. In other circumstances, the Court should refrain from intervening in proceedings at an interlocutory stage in the absence of clear reasons to do so, sufficient to outweigh the undesirability of disrupting the ordinary course of proceedings: [5], [35]-[36].

Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1; Lamb v Moss [1983] FCA 254; (1983) 49 ALR 533; Moss v Brown [1979] 1 NSWLR 114; Cain v Glass (No. 2) (1985) 3 NSWLR 230; Anderson v Attorney-General (NSW) (1987) 10 NSWLR 198, applied.

In relation to (iii)

6. A distinction should be drawn between circumstances in which a judge is involved in “active case management” and circumstances in which a judge is expressing tentative views on issues arising in the case: [38].

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577, considered.

7. The fair-minded lay observer is the personification of an objective test: [43]. This hypothetical lay observer should be assumed to have such knowledge as would allow the person to place the comments of the trial judge in their proper context: [45].

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577, considered.

In relation to (iv)

8. The trial judge has an obligation to take appropriate steps to ensure that a party appearing unrepresented has sufficient information about the practice and procedure of the court as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending on the circumstances of the case: [48].

MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512; Michael v Western Australia [2007] WASCA 100, referred to.

In relation to (v)

9. This Court should not intervene in the District Court proceedings unless it is clearly established that the point has been reached where the fair-minded observer might think that the trial judge might not assess the evidence of Mr Park with objectivity and without pre-judgment: [87]. It has not been clearly established that that point has been reached: [5], [88].

10. The present application being premature, the applicant is not precluded from raising the issue again after judgment is delivered in the District Court. It is thus inappropriate for this Court to express a final view as to whether, if the matter were to be assessed on a final basis, a reasonable apprehension of bias would have been demonstrated: [90].

Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568, referred to.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40778/07

DC 5376/02

HODGSON JA

BASTEN JA

BELL JA

26 February 2008

Jae Kyung LEE v Bob Chae-Sang CHA & ORS

Judgment

1 HODGSON JA: I agree with the orders proposed by Basten JA, and subject to what I say below, I agree substantially with his reasons.

2 I agree that the weight of authority supports the view that, if all that happens is that, in the course of a trial, a judge is asked to disqualify himself or herself and declines to do so, there is no order from which an appeal can be brought. In the case of tribunals apart from superior courts, however, an application can be made for an order in the nature of prohibition.

3 The grey area then is, what more is required for there to be an interlocutory order from which an appeal can be brought, subject to the grant of leave to appeal. Would it be enough, for example, that there be a document filed in court seeking orders that the judge disqualify himself or herself, that the hearing be terminated, and that there be an order that the trial commence de novo before another judge; and that the application be dismissed, with an order that the applicant pay the costs of the application. My tentative view is that there would then be an order from which leave to appeal could be sought. Would this still be the case if the application were dismissed with no order as to costs? Perhaps so; although then the situation becomes very difficult to distinguish from a case such as the present, where to seek disqualification must by implication also involve seeking orders that the hearing be terminated and that the trial commence de novo before another judge.

4 It is not necessary to resolve these questions in this case, because an order in the nature of prohibition is available; and because such an order is subject to discretionary considerations, as is an application for leave to appeal from an interlocutory order that could vitiate the final result of the hearing.

5 In my opinion, it can be appropriate to grant relief, whether by way of an order in the nature of prohibition or by way of leave to appeal, in a part-heard case where disqualification for bias or apprehended bias is clearly shown. However, in a case where that is not clear, there are powerful reasons for withholding relief as a matter of discretion: in particular, the circumstance that a decision concerning bias or apprehended bias can best be made having regard to the whole of a trial, and the circumstance that, if relief is granted, the time and cost of the hearing to date would inevitably be wasted. For reasons given by Basten JA, this is not a clear case; and I too would withhold relief as a matter of discretion.

6 BASTEN JA: This matter involves proceedings currently pending in the District Court before Gibson DCJ. On 17 October 2007 the proceedings had reached the twenty-ninth day of the trial. It appeared that the cross-examination of Mr Cha (who was the plaintiff at trial and will be referred to as “the plaintiff”) had been completed, but there was a possibility of re-examination and an expectation that a number of further witnesses would be called by the parties. On present progress, counsel estimated that the further hearing of the proceedings “will take at least six weeks, and possibly longer”.

7 According to the statement of claim, the plaintiff was the president of the Year 2000 Sydney Olympic Australian-Korean Supporting Committee (“the Committee”). (The precise name of the Committee, presumably a translation, varied in the evidence, as did the title of the plaintiff, who was sometimes referred to as the chairman.) The function of the Committee was to provide assistance and support to Korean athletes attending the 2000 Olympic Games. The proceedings concerned a number of statements in Korean language newspapers suggesting that the plaintiff had mismanaged the affairs of the Committee and failed to account properly for expenditure. The second defendant in the proceedings (who brought the present application) was the publisher of the material complained of, much of which emanated from the fourth defendant (Mr Park) who was an “auditor” of the Committee’s financial records.

8 Prior to the present proceedings before her Honour sitting alone, there had been a trial pursuant to s 7A of the Defamation Act 1974 (NSW) at which a jury had determined that a number of defamatory imputations arose from the publications. Her Honour was required to consider defences raised in relation to the various imputations, as well as the assessment of damages, in relation to each cause of action which was established. The material complained of was published between December 2000 and June 2001, suggesting that judgment will not be available on any view until some seven years after the last publication. Although no counsel proffered an estimate of the maximum likely damages if the plaintiff were entirely successful, it appears to have been accepted that the figure would not approach the legal costs which the parties have already incurred. The time taken for the current trial so far is at least in part a result of the fourth defendant, Mr Hak Joo Park, and the plaintiff, Mr Bob Chae-Sang Cha, not having sufficient English to allow any part of the proceedings to be conducted without interpreters. Similarly, all of the key documents were in Korean. This caused cross-examination in particular to be a slow process. Further, Mr Park was representing himself, but was apparently without the assistance of an interpreter for parts at least of the trial.

9 Even a cursory perusal of the transcript conveys a clear impression that the patience of all the participants was sorely tested during the proceedings. On a number of occasions the trial judge was moved to reprimand counsel for comments to each other. On numerous other occasions her Honour noted that she was not assisted by comments made by counsel. The transcript further suggests that her Honour exercised considerable forbearance in not responding to many interventions by counsel. Nevertheless, on occasion her Honour expressed a degree of frustration, using language which led to a request for recusal, based on bias or a reasonable apprehension of bias against Mr Park. Her Honour declined to accede to that request and the present proceedings in this Court are a challenge to that decision of the trial judge.

10 Before considering in more detail the circumstances in which the request arose and the particular grounds on which it was based, it is necessary to say something about the jurisdiction of this Court to consider the matter.

Jurisdiction: availability of appeal
11 The request that her Honour disqualify herself from further hearing of the matter was made on 12 October 2007 by counsel for the second defendant, Mr Jae Kyung Lee. She declined to accede to that request and delivered ex tempore reasons on the same day at the completion of argument.

12 On 9 November 2007 Mr Lee (who will be referred to as “the applicant” adopting the new terminology of UCPR Part 51), filed a holding summons seeking leave to appeal against her Honour’s refusal to disqualify herself from the further hearing of the matter. A week later an ordinary summons with appointment was filed and expedition was sought. The matter came before a single judge of the Court on 17 October 2007. Following that directions hearing, the applicant amended his summons to add as a second opponent “Judges of the District Court of NSW” and to seek an order in the following terms:

“An order in the nature of a writ of prohibition that the Second Defendant be restrained from further listing for trial, District Court proceedings No. 5376 of 2002 before her Honour Judge Gibson DCJ.”

13 Any right of appeal (or right to apply for leave to appeal) depends on the proper construction of s 127 of the District Court Act 1973 (NSW) which confers a right of appeal on a party dissatisfied, relevantly for present purposes, “with a judge’s ... judgment or order in an action”: s 127(1). It is not in dispute that the applicant would require leave in the present matter because any relevant judgment or order was interlocutory: see s 127(2). The question is whether her Honour’s refusal to disqualify herself constituted a “judgment or order” at all. The overwhelming weight of authority suggests that it did not.

14 In The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 the High Court considered an application for a writ of prohibition sought by the wife in certain proceedings under the Family Law Act 1975 (Cth) against a judge of the Family Court on the basis that he was biased against her and had prejudged her credit to her disadvantage. The proceedings were not by way of appeal, but the availability of an appeal was relevant to the grant of a writ of prohibition, in circumstances where a ground for issue of the writ had been made out. The joint judgment of Barwick CJ, Gibbs, Stephen and Mason JJ considered that issue at p 266 in the following terms:

“It was submitted on behalf of the husband that the wife’s proper remedy was to appeal to the Full Court of the Family Court. As to that submission no more need be said than that an appeal lies only from a ‘decree’ (s 94(1)), which means a ‘decree, judgment or order’ (s 4(1)), and a judge who simply continues to sit after it has been submitted that he is disqualified does not thereby make a ‘decree’. No doubt an appeal could have been brought if the learned judge had finally given judgment in the matter, but it would be obviously inconvenient to allow him to complete the proceedings when he is disqualified to hear them.”

15 In Barton v Walker [1979] 2 NSWLR 740, this Court (Samuels JA, Reynolds and Glass JJA agreeing) applied Ex parte Armstrong in considering whether an appeal lay under s 101 of the Supreme Court Act 1970 (NSW) from a decision of a judge in a division of the Supreme Court refusing to disqualify himself from further participating in proceedings involving two ex officio indictments filed against Messrs Alexander and Thomas Barton. Section 101 of the Supreme Court Act allows for an appeal (with leave, if interlocutory) from “any judgment or order of the Court in a Division”: s 101(1)(a). Samuels JA noted that the parties did not contend that the refusal of the request for disqualification was a “judgment” but addressed the contention that it was “an interlocutory order”. His Honour noted (p 747E-F):

“The order, which the appellants contend was made, was not entered ... . However, the only formal disposal of the proceeding which could have occurred was his Honour’s decision to reject the appellants’ request; and, if that request were an application in the strict sense, then that decision would certainly have constituted an order ... .

The matter is best approached, therefore, by considering whether the appellants’ request (as I have called it for need of some general term) amounted to a justiciable application.”

16 His Honour considered, but put to one side, the fact that there was no notice of motion filed by the appellants and the fact that the primary judge, in his reasons for rejecting the request, referred to it as an “application” and referred to his reasons as a “judgment”. Before considering the authority of Ex parte Armstrong, his Honour expressed the view that a request for a judge to disqualify himself was not properly understood as an application for an order concerning the conduct of proceedings in the court. He commented that it was “a matter of real difficulty to conceive of an order directed by the judge to the judge forbidding himself to hear the case; at least in the absence of statutory regulation”: p 749E. His Honour continued:

“The further difficulty encountered is that of the judge acting as judge in his own cause. How does the judge deal with assertions of fact which he knows to be incorrect? They might not be challenged by the party not moving. How can the judge himself introduce evidence, upon which he might have to rule, if its admissibility is challenged, and which he might ultimately have to evaluate?
...

These considerations, in my view, clearly show that a motion to disqualify a judge of the Supreme Court is not cognizable. The present informal practice is sensible and adequate ....”

17 After referring to the passage in Ex parte Armstrong in which the joint judgment in the High Court dismissed the suggestion that a judge who simply continues to sit makes a decree, judgment or order, Samuels JA continued (at p 751D):

“Nor does he make an order, I would think, if he announces that he will sit, or gives reasons for deciding to do so.

I do not consider that any order was made in the present case from which an appeal can be brought.”

18 These authorities have been followed in subsequent decisions in this State: see, eg, Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272 at 273 (Priestley JA, Hope and Glass JJA agreeing); Rajski v Wood (1989) 18 NSWLR 512 at 517-518 (Kirby P), 522-523 (Priestley JA) and 524 (Hope AJA), and Rogerson (1990) 45 A Crim R 253 at 255 (Gleeson CJ, Wood and Brownie JJ agreeing, in relation to an attempt to appeal against an interlocutory judgment or order in criminal proceedings under s 5F of the Criminal Appeal Act 1912 (NSW)).

19 The principle set out in the cases referred to above has been described as “well established”: see Sir Anthony Mason, “Judicial disqualification for bias or apprehended bias and the problem of appellate review” (1998) 1 CLPR 21 at 22 (col 3). Nevertheless, its foundations have not been uniformly respected. The crack in the foundations, which tends to undermine the structure, is that a complaint of bias or apprehended bias may be relied upon as a ground of challenge in respect of any final or, significantly, any interlocutory order which is susceptible to appeal whether by leave or as of right: see, eg, Raybos Australia, cited above at [18] (Priestley JA) approved in Rajski v Wood, cited above at [18], at 518D (Kirby P) and 523B-C (Priestley JA). Whether or not the bias or apprehended bias has affected the actual order, the challenge is allowed because it alleges that the court was not properly constituted for the purpose of making any order in the proceedings. Frequently consequential orders will be made which will engage a statutory provision conferring a right to appeal, usually by way of leave: see, eg, Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48 at 64 (Gummow and Heerey JJ, Davies J agreeing). Whether such an informal request, if rejected, can properly give rise to a costs order need not be considered: but if a costs order were made it would affect the interests of a party so as to be an order which may be the subject of an appeal.

20 Nor is it necessary for present purposes to consider the rationale of Brooks v The Upjohn Company (1998) 85 FCR 469 in which the Full Court of the Federal Court sought to distinguish Barton v Walker on the basis that there had been a notice of motion filed and a formal order extracted: 85 FCR at 474D-F. Whether that distinction is available on the reasoning of Samuels JA in Barton, or the other authorities referred to above, might be doubted. However, the Full Court went on to note that if it were wrong in its assessment that Barton could be distinguished, it would not follow that decision: p 476B. (There was no finding that Barton was clearly wrong.) Their Honours also opined that “[t]he observations by the majority of the High Court in The Queen v Watson; Ex parte Armstrong at 266 were not essential to the decision in that case”: p 476G. Whether it would be appropriate to disregard a joint judgment of the High Court in that manner, or even to treat it as “not essential” because it was rejecting a basis on which discretionary relief might be refused, but was not, may also be doubted. However, the comment that the principle “does not sit all that comfortably with the later decision” of this Court in Australian National Industries Ltd v Spedley Securities Ltd (In liq) (1992) 26 NSWLR 411 is correct: see Brooks at 476B. In Spedley, Gleeson CJ and Samuels JA were in dissent and made no reference to Barton, whilst the manner in which the majority dealt with Barton was not beyond question. Kirby P considered it “unnecessary to consider whether the issue is one properly before this Court” (at p 423E-F) but continued:

“However, as all of the parties (and Cole J) invited this Court to rule on the matter, as the issue could readily be tendered in another way conformably with Rajski v Wood and as it is manifestly convenient and desirable that the issue of the suggested disqualification of Cole J should be decided as quickly as possible ... I would simply pass the Barton v Walker issue by, saying nothing more upon it.”

21 Mahoney JA in Spedley purported to affirm the principle in Barton but held that Cole J had “made an order that properly is the subject of appeal within s 101 of the Supreme Court Act 1970”, without identifying the order: 26 NSWLR at 436-437.

22 Some of these difficulties have been noted in other jurisdictions including in a careful judgment of the Full Court of the Supreme Court of South Australia in Southern Equities Corporation Ltd (In liq) v Bond [2000] SASC 450; (2000) 78 SASR 339 at [3]- [4] (Olsson J), [97]-[100] (Williams J) and [107]-[118] (Bleby J).

23 If it were necessary to resolve in the present case whether an appeal was available, I would conclude that it was not. The weight of authority in this Court clearly favours that proposition. Even though it appears not to have been applied in Spedley, no member of the Court in that case suggested that Barton v Walker was wrong: to the contrary, the only members of the majority who referred to it either assumed or affirmed its correctness.

24 The applicant sought to distinguish Barton v Walker (and associated authorities) on the basis that they were concerned with decisions in superior courts, whereas the present case concerned the District Court. However, that point of distinction does not carry weight. Each case was concerned with the meaning of the word “order” in statutory provisions permitting an appeal and no basis was demonstrated for suggesting that the word had a different meaning in the Supreme Court Act from that in the District Court Act. If inconvenience or anomalies were to be taken into account, the arguments in favour of a broader interpretation would be stronger in relation to the Supreme Court than the District Court. As the applicant accepted, jurisdiction to review the decision of a District Court judge may arise under s 69 of the Supreme Court Act by way of relief in the nature of prohibition.

25 Finally, the applicant asserted that Barton, and its progeny, were wrong. However, as already noted, Barton followed Ex parte Armstrong and it is not open to this Court to say that Armstrong was wrong. As already stated, I do not consider that the reference in Armstrong to the unavailability of an appeal was an inessential comment, nor would I disregard it if I thought it were. That problem aside, there are a number of factors which would need to be addressed before this Court overturned its earlier line of authority, none of which were addressed in argument.

26 The only basis upon which this Court might properly not apply the principle set out in Ex parte Armstrong would be because it was concerned with the exercise of judicial power under Chapter III of the Constitution. There is authority for the proposition that such an order will not arise unless it is “decisive of the rights of the parties”: see Yule v Junek [1978] HCA 4; (1978) 139 CLR 1 at 14 (Mason J) and see Mellifont v Attorney-General (Queensland) [1991] HCA 53; (1991) 173 CLR 289 at 300 and the authorities at fn (30) (Mason CJ, Deane, Dawson, Gaudron and McHugh JJ). A broader view might be taken of the nature of a curial order, where it affects the constitution of the relevant tribunal under a State law, but there is no support for that view in the authorities: see Moller v Roy [1975] HCA 31; (1975) 132 CLR 622 at 639 (Mason J); Ah Toy v Registrar of Companies (1985) 10 FCR 280 at 285-286 (Toohey, Morling and Wilcox JJ). There are many kinds of interlocutory rulings which are not appealable judgments or orders: see The Commonwealth v Mullane [1961] HCA 28; (1961) 106 CLR 166 at 169. A ruling that evidence is admissible is not appealable: see generally Bozatsis & Spanakakis (1997) 97 A Crim R 296 at 303 (Gleeson CJ, Meagher JA and Bruce J agreeing); Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (NSWCA 20 May 1996, unreported) (Mahoney P, Meagher and Cole JJA agreeing) applied by Buchanan J in Lawrance v The Commonwealth [2007] FCA 1524: indeed in Hall v Braybrook [1956] HCA 30; (1956) 95 CLR 620 at 635, Dixon CJ said that “a magistrate’s ruling that evidence is to be admitted or rejected cannot itself constitute an ‘order’ that may be reviewed ... though of course if erroneous it may be a ground for reviewing a determination affected by it”. See also Legal Practitioners’ Complaints Committee v A Practitioner (1987) 46 SASR 126 at 127 (King CJ) applied by Spigelman CJ in Johnston v Nationwide News Pty Ltd [2005] NSWCA 17; (2005) 62 NSWLR 309 at [30], and see Rich v Australian Securities and Investments Commission [2005] NSWCA 233; (2005) 54 ACSR 365 at [6] and at [21]-[25]. No argument having been addressed to these matters, they need not be taken further.

27 It remains to note that if it were thought, contrary to the foregoing reasoning, that an appeal was available, it would be necessary to consider whether there should be a grant of leave. That question need not be considered, but, conformably with the factors set out below, there would be serious doubts about whether leave should be granted.

Jurisdiction: ‘prerogative relief’
28 There is no doubt that this Court has power to restrain the trial judge from continuing with the proceedings, by making an order in the nature of prohibition pursuant to s 69 of the Supreme Court Act, if a proper basis for the exercise of that power is made out. As exemplified by Ex parte Armstrong, a basis for granting relief would be the demonstration that her Honour was biased or that there was a reasonable apprehension that she might not bring an unbiased mind to the resolution of issues in the proceedings. The applicant did not contend that the material to be discussed below established actual bias, but rather said that statements made by her Honour in the course of the proceedings might cause a fair-minded observer to entertain a reasonable apprehension of pre-judgment in relation to evidence yet to be given by Mr Park. However, relief in such a case is discretionary and there are a number of factors to be considered in determining whether an order in the nature of prohibition should be made in the present case: see discussion of general law principles in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [43]- [60] (Gaudron and Gummow JJ).

29 The discretionary factor which received most consideration from the parties was, understandably, the question of costs. This, however, tended to cut both ways. If the matter were allowed to proceed to judgment, and the judgment were subsequently set aside for a reasonable apprehension of bias, the additional six weeks of hearing anticipated would have been wasted expenditure. On the other hand, if the matter were to be stopped at this stage, the six weeks of aborted hearing would have had to be repeated in circumstances where the final outcome might not have been affected by the error. It is, of course, not possible to estimate the prospects of success of either side and neither party invited the Court to do so.

30 A second factor which may militate against intervention would be the absence of a reasoned decision with respect to the challenge brought before this Court. That difficulty does not arise in the present case, although it may be necessary to consider how this Court should treat the reasons given by the trial judge for continuing to sit in addressing the application for prohibition.

31 Two other matters should be noted in order to identify which authorities are relevant to the present question. First, there are reasons to distinguish cases where the primary decision-maker is an administrative tribunal, as opposed to a court. Questions of premature intervention have been given more limited weight in relation to administrative decision-making. Secondly, care must be taken to distinguish between intervention under general law principles and intervention by the High Court in granting “constitutional writs” under s 75(v) of the Constitution against Commonwealth officers, a term which includes the judges of superior federal courts: see The Queen v Ross Jones; Ex parte Green [1984] HCA 82; (1984) 156 CLR 185 at 218 (Brennan J) and see Re Refugee Review Tribunal; Ex parte Aala at [22]-[25] (Gaudron and Gummow JJ, thereafter discussing the history of the availability of prohibition under the general law). Although there was once some doubt as to the circumstances in which prohibition was a discretionary remedy, as opposed to one going “as of right” once the conditions for issue of the writ were made out, it appears to be widely accepted that the old writ should now be treated as discretionary: see Aronson, Dyer and Groves, Judicial Review of Administrative Action, 3rd ed, (2004), pp 714-719. (Although the writ procedure has been abandoned, it was not argued that different principles now apply to relief under s 69 of the Supreme Court Act: c.f. Solution 6 Holdings Ltd v Industrial Relations Commission of NSW [2004] NSWCA 200; (2004) 60 NSWLR 558 at [134] (Spigelman CJ), but see [160] (Mason P) and [184] (Handley JA).)

32 Two factors militate against intervention in the present circumstances. The first is that the basis for an apprehension of bias did not arise from some step or circumstance existing prior to and beyond the confines of the litigation. Rather, it arose during the course of the litigation and out of the conduct of the trial judge in her exchanges with counsel and the parties. Such exchanges must be viewed in the context of the conduct of a lengthy trial. Words may be used in the heat of the moment which, on reflection, should not have been used because they may convey an attitude inconsistent with the dispassionate appraisal of the evidence. Over time, the effect of the misplaced language may be dissipated or it may be expressly withdrawn. Such a situation may, of course, need to be distinguished from that in which, absent any provocation or need to express a view, the trial judge indicates a firm attitude in relation to particular evidence giving rise to a reasonable inference of pre-judgment: see, eg, Ex parte Armstrong (supra) and Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568.

33 Similarly, the general obligation that a trial judge take steps to ensure that a litigant in person is appraised of his or her rights and the manner in which the trial is being conducted, may be tempered on occasion by the need to ensure that all parties comply with proper procedures. Some litigants in person (like some legal practitioners) can properly be interrupted and given firm directions as to what is proper conduct and what is not. Taken out of context, such remarks may be seen as indicative of bias against the litigant in person. It is important that they not be taken out of context.

34 These considerations will need to be applied in addressing the comments relied upon by the applicant as giving rise to an apprehension of bias in respect of Mr Park, who was unrepresented during the trial, though he had counsel appearing for him in this Court.

35 The second factor which militates against intervening at this stage of the present proceedings concerns the contestable basis of the application. Where a ground relied upon for prohibition demonstrates a patent or manifest want of jurisdiction on the part of the tribunal below, it may well be appropriate to intervene at an early stage to prevent the continuation of such proceedings. In other cases, early intervention may be appropriate because there is no remedy available by way of appeal or other challenge to a final determination: c.f. The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100 at 118-119; Solution 6 Holdings Pty Ltd, 60 NSWLR 558 at [140]-[145] (Spigelman CJ, Mason P and Handley JA relevantly agreeing), as approved in Fish v Solution 6 Holdings Ltd [2006] HCA 22; (2006) 225 CLR 180 at [44], c.f. comments in dissent of Kirby J at [141]-[142] and Heydon J at [174]-[177].

36 In other circumstances, the Court will be required to exercise restraint and not interfere in proceedings at an interlocutory stage in the absence of some clear reason to do so, sufficient to outweigh “the undesirability of discontinuity, disruption or delay” in the established procedures of the law: see comment of the Full Court of the Federal Court in Lamb v Moss [1983] FCA 254; (1983) 49 ALR 533 at 545, referring to the established line of authority in respect of intervention in committal proceedings, applying, in particular, Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 25-26 (Gibbs ACJ), 80 (Stephen J) and 81-82 (Mason J). As the Full Court (constituted by Bowen CJ, Sheppard and Fitzgerald JJ) further noted, a similar approach had been adopted by this Court in Moss v Brown [1979] 1 NSWLR 114 at 132 where the Court (Moffitt P, Reynolds and Hutley JJA) noted, on the assumption that the Court had jurisdiction to grant relief:

“However, on any basis, the occasions in which this Court should, in the proper exercise of its discretion, entertain applications for orders in the nature of prerogative remedies or declarations in relation to committal proceedings must be exceedingly rare. For example, a statement of intention, or a revocable decision concerning the future conduct of the inquiry, or an interim refusal to adopt some course, could hardly provide an appropriate basis for the exercise of any jurisdiction which the Court has.”

37 The undesirability of interrupting committal proceedings was noted in more detail in Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317 at 321-322 (Moffitt P) and at 329 (Hutley JA), Glass JA agreeing with both. It may, of course, be said that committal proceedings differ in material respects from civil trials. Nevertheless, the undesirability of interrupting the ordinary course of proceedings has force in each case: see, generally, Cain v Glass (No. 2) (1985) 3 NSWLR 230 at 235 (Kirby P), 253E (McHugh JA); Anderson v Attorney-General (NSW) (1987) 10 NSWLR 198 at 200-202 (Kirby P); 204-205 (Samuels JA) and 214 (McHugh JA).

38 It is against these principles that the applicant’s request for relief in the present case should be addressed.

Principles relating to apprehended bias
39 There are various categories of case in which disqualification by reason of an appearance of bias may arise: see Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 74 (Deane J). The present case was not one in which the trial judge had any interest in the proceedings or their outcome, nor any association with any of the parties, nor any extraneous information as to the matters under consideration. The particular question was whether, through comments made in the course of the hearing, her Honour had indicated a fixed view as to the character and credibility of Mr Park, as a result of his conduct of his own case, prior to him giving evidence. As explained in the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6], the governing principle is that “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”.

40 That test will require an evaluative judgment in particular circumstances as to what the “fair minded lay observer” can be taken to know. In Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [13] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ stated:

“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. ... 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.”

41 A distinction should be drawn between circumstances in which the judge is involved in “active case management” and circumstances in which the judge is expressing tentative views on issues arising in the case, as will frequently happen in the course of oral submissions. There may, of course, be circumstances where the two categories are not readily distinguishable, as, for example, where the trial judge might, in seeking to ascertain how long a particular phase of the trial might take, expressly indicate a view that certain issues are live and, impliedly, that others lack substance. In relation to the expression of tentative views, Kirby and Crennan JJ stated in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at [112] (Gummow ACJ agreeing at [4]):

“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.”

42 As will be seen below, this was not a case of the trial judge directly expressing a tentative view about any aspect of the issues in dispute: rather, her Honour’s comments were expressed in her role as case manager in relation to the conduct of the parties to the proceedings.

43 There remains a questions as to what the fair-minded lay observer should be taken to know about the particular proceedings in question. The idea that any fair-minded lay observer would have sat through six weeks of the trial may be an oxymoron. In reality, the reference to such a person is no more than a personification of an objective test. There is usually no harm in such personification, which is a commonplace in the statement of legal principles, so long as it is not an excuse for fuzzy thinking about the test to be applied.

44 The key part of the test is that the observer is understood to be a lay person and not a lawyer. As expressed by Callinan J in Concrete Pty Ltd, at [177]:

“It is axiomatic that the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer. But the notional lay person should not be taken to be completely unaware of the way in which cases are brought to trial and tried.”

45 The hypothetical lay observer in the present trial should be assumed to have knowledge of most of what went on at the trial, or at least such knowledge as would allow the person to place the comments of the trial judge in their proper context. Thus, he or she should be taken to be aware that:

(a) the relevant comments were made after the trial had been on foot for more than 21 days;

(b) counsel for the represented parties were regularly sniping at each other along the bar table;

(c) at least one counsel was given to mischievous and provocative asides which sometimes drew a reaction from the trial judge;

(d) the length of the trial had already exceeded the pre-trial estimates provided to the Court, and

(e) unless the time taken for the hearing was drastically curtailed, legal costs would greatly outstrip any realistic assessment of recoverable damages.

46 Because Mr Park was a litigant in person, this Court was taken to a number of cases concerned with the appropriate behaviour of a trial judge when faced with a litigant in person, particularly one who did not speak English. It will be necessary to refer to those authorities further below. However, it may be noted that the remarks in such judgments are not always precise as to whether they are:

(a) specifying essential elements of procedural fairness, absence of which will result in judgments or orders being set aside;

(b) principles, breach of which may demonstrate a lack of impartiality, or

(c) desirable steps, breach of which will not necessarily give rise to any ground of appeal or basis for setting aside a judgment for partiality.

47 In relation to Mr Park, the fair-minded lay observer should be taken to know that:

(a) whilst he was representing himself, he had at times had legal assistance in preparation for the hearing;

(b) he had both filed a defence and provided a detailed statement in relation to his own evidence;

(c) he wished to take an active part in the hearing, in particular by cross-examining the plaintiff;

(d) although he was an active party, he usually sat in the well of the Court;

(e) although he did not speak English he usually did not have an interpreter;

(f) he had no experience of court proceedings, and

(g) he was expected to give evidence as a witness for the Mr Lee, who was represented by counsel.

Principles relevant to conduct of trial with litigant in person
48 The Court was invited to assess the conduct of the trial judge in part by reference to the principles said to govern the conduct of a trial where one party is a litigant in person and not fluent in English. The relevant principles, if they can be so described, derive from the obligation of a trial judge to take appropriate steps to ensure that a party appearing unrepresented has sufficient information about the practice and procedure of the court as is reasonably practicable for the purpose of ensuring a fair trial: see, in relation to an accused in a criminal trial, MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512 at 523 (Gibbs CJ and Wilson J), 534-535 (Mason J) and 546-547 (Brennan J), (Aickin J agreed with Mason J and Brennan J). Application of that principle will vary depending on the circumstances of the case and particularly as between trials with and without juries. In some courts, the principle has been reformulated in terms of more specific “guidelines”: see Re F [2001] FamCA 348; (2001) 161 FLR 189 at [215] and [253] (Nicholson CJ, Coleman and O’Ryan JJ). The kind of assistance required in the circumstances may also be qualified where there are several parties in the same or similar interest so that the trial judge may be entitled to rely upon the assistance an unrepresented litigant has had from other parties.

49 There will be cases where a failure to provide assistance to a litigant in person will give rise to a miscarriage, so that the trial may be overturned on appeal: MacPherson provides an example. However, it is important to note that although an appearance of partiality may be said to give rise to an unfair trial, a failure to provide sufficient information to an unrepresented litigant may result in the trial miscarrying without any suggestion of bias or apprehended bias on the part of the trial judge. Partiality is a specific form of unfairness; no broader complaint was raised by the present application.

50 As will appear below, it is also important to distinguish conduct on the part of a trial judge which is discourteous, impatient or even rude, without demonstrating bias or creating an unfair trial: see Michael v Western Australia [2007] WASCA 100 at [72] (Steytler P, McLure JA and Miller AJA agreeing). Such conduct may in some cases be considered inappropriate and may warrant a complaint under the Judicial Officers Act 1986 (NSW), but may not give rise to a miscarriage of justice: see, eg, Love (1983) 9 A Crim R 1 at 3 (Wickham J), cited with approval in Michael at [71].

Conduct of the trial
51 Part of the background against which the conduct in question was to be assessed was that the hearing had commenced before the trial judge on 4 June 2007 and had proceeded over some 13 hearing days between 4 and 27 June inclusive. At some stage in late June there was discussion as to further dates for hearing. Precisely when that occurred, and whether it involved Mr Park is not clear from the transcript. However, by 22 June a stage was reached at which the case needed to be adjourned to allow the plaintiff, then under cross-examination, to consider a volume of documentary material. As a result, the proceedings were stood over for further directions until 27 June; the further hearing was set down for 24 September 2007 for four weeks: Tcpt, 22/06/07, p 471. The Court was not directed to any passage in the transcript which revealed discussion as to the estimate of four weeks for completion of the trial, nor to any involvement of Mr Park in such discussions.

52 On 16 August 2007 the matter came back before her Honour for further directions, although it is not entirely clear on whose application. It is not clear whether Mr Park was in attendance or whether there was any further discussion as to the time to be taken in the remainder of the hearing.

53 On 24 September 2007 the hearing recommenced with a number of procedural applications. There was a discussion with Mr Wheelhouse SC (for the present applicant) as to whether he would finish his cross-examination of the plaintiff in two days. He indicated that he did not expect to: Tcpt, p 494. Mr Evatt, who was appearing for the plaintiff advised her Honour, “this case is going to be going another six to eight weeks”. Her Honour responded:

“HER HONOUR: Look, I specifically asked this because when I adjourned the matter part-heard I wanted assurances from everybody that the case would finish in the four weeks.

EVATT: But, your Honour, I gave an assurance that it would not.

HER HONOUR: When did you give that assurance?

EVATT: When fixing the four weeks.

HER HONOUR: Where do I find that in the transcript, Mr Evatt?

EVATT: I don’t know.”

54 After some further discussion, her Honour noted that she was referring to the confirmation of the hearing date for four further weeks which was made on 16 August 2007 at a directions hearing.

55 One of the applications before her Honour on 24 September 2007 was an application on behalf of the plaintiff to strike out the particulars of the defence and indeed the whole of the defence of justification. That application changed in the course of argument, but counsel for the plaintiff apparently persisted in an application that the second defendant (Mr Lee) should pay the plaintiff’s costs of the trial in relation to the issue of particulars. Her Honour gave judgment on that application on 4 October 2007 stating that she would not deal with the matter of costs, “because in my view it is not appropriate that I should further inflame what is already an unpleasant atmosphere by deciding applications for costs”: Tcpt, 04/10/07, p 2.

56 The substance of the judgment of 4 October is not relevant; it related to the basis of cross-examination of the plaintiff and the document containing the second defendant’s proposed particulars. Her Honour stated at p 17:

“It is of course the defendant’s entitlement to range far and wide and to include any other matters. However, what troubles me is that there is so much material in these particulars that it looks to me as if the case is going to be difficult to manage.”

57 Her Honour further stated at Tcpt, p 23:

“It has been very difficult for me to case manage this case. There has been a history of non-compliance with orders and, to be frank, that applies to all the parties and not simply the plaintiff and the second defendant. The delay caused by the history of litigation is regrettable. I blame no-one. It is the fact, though, that not only are all these documents in Korean, where there have been disputes about their completeness as well as their translation, but they all relate to events in 2000, in circumstances where there has been delay.

It has to be said, and I say it with reluctance, that it is also apparent to me that there is a degree of on-going hostility at the bar table and I think that all I need do is refer to what is in the transcript. My concerns at all times have been to try to reduce this case to manageable proportions.”

58 The involvement of Mr Park in the proceedings during those periods relevant for present purposes, so far as is revealed by those parts of the transcript to which this Court was directed, is limited to the following matters.

59 On 14 June 2007 immediately following the luncheon adjournment, her Honour inquired whether “there is some problem with Mr Park”. Mr Wheelhouse responded that there was not. There was then some brief explanation as to whether it was appropriate for him to ask questions of the plaintiff in cross-examination, as suggested by Mr Park, following which her Honour remarked that “he’s got a right to cross-examine and all the more so since he’s a litigant in person”: Tcpt, 14/06/07, p 371.

60 On the following day, 15 June, following an exchange with counsel in relation to cross-examination, her Honour remarked (Tcpt, p 396):

“HER HONOUR: What is wrong with Mr Park, he doesn’t look very well.

INTERPRETER: He’s a bit sick actually.”

Mr Park himself then explained his position and was excused from attendance for the rest of the day. Her Honour directed that he should be told that the Court was not sitting on the following Monday, Tcpt, p 397.

61 Otherwise, the transcript reveals little of Mr Park’s role in the proceedings, prior to the matters which are said to give rise to an apprehension of bias. This may be a matter of some importance for the applicant, in so far as this Court may not be in a position to be confident that it has all the contextual information which would have been available to the fair-minded lay observer, assessing her Honour’s comments. Mr Park appeared by counsel in support of the present application and made submissions in relation to his position as a litigant in person. If there were further information available as to his role in the proceedings which could have supported an inference that her Honour had been so grossly unfair as to demonstrate prejudice against him, that material was not proffered. It should be accepted that Mr Park was an important witness in the applicant’s case and that his credibility was likely to be an issue. Although he and the applicant had differing roles, Mr Park joined with the applicant saying that he had no confidence in obtaining a fair trial from the trial judge.

62 Against that background, it is convenient to turn to the material relied upon by the applicant as providing the basis for an apprehension of bias

Conduct complained of
63 The first exchange relevant to Mr Park, relied on by the applicant, occurred on 5 October. The transcript reveals that Mr Wheelhouse SC, in the course of his cross-examination of the plaintiff, sought to put “an open offer” to him in the witness box. The discussion which followed was in terms which were unedifying. Her Honour took the view that the form of offer was, in the circumstances, inappropriate and said to counsel (Tcpt, 05/10/07, p 826):

“I most seriously am unimpressed by your making such a statement in open court.”

64 Counsel then sought to proceed with the cross-examination, but Mr Evatt (for the plaintiff) made an application that her Honour discharge herself and order the second defendant to pay the plaintiff’s costs. The bare transcript indicates that tensions were running high in the courtroom on that day. The cross-examination continued, and Mr Wheelhouse showed the plaintiff a photograph which, it appeared, had been produced by Mr Park. There was discussion as to why it had not been discovered. Having been told that the photograph was produced by Mr Park “this morning” her Honour asked (Tcpt, p 845):

“Hang on, which Mr Park is this? Is this another Mr Park or is this the Mr Park who’s a defendant ....”

65 Her Honour then sought to elicit that Mr Wheelhouse had no further documents and remarked that she took “a very strong view about the obligation of parties to discover”: p 846. Her Honour continued:

“HER HONOUR: Please don’t tell me that Mr Park is not a party to this litigation so I’m in someway convinced that it’s some other Mr Park and not the Mr Park who’s sitting in court with an insouciant air.

WHEELHOUSE: I don’t think he has an insouciant air, your Honour.

HER HONOUR: He does, bearing in mind that this is something that I’ve indicated I regard seriously. I also want to know why it is that he’s sitting down the back of the court in this way.”

66 It may be inferred that her Honour was indicating a view that Mr Park was careless, indifferent, or unconcerned about his failure to comply with his obligation in relation to discovery. However, unless he had an interpreter with him, he presumably would not have understood the exchange which had just taken place with counsel in English and relating to procedural matters in civil litigation in respect of which, even had he had some limited understanding of the English language, he would probably not have comprehended the significance.

67 In any event, little weight should be placed on this exchange. First, it was something of a “throw away” comment in the course of what had been, and continued to be, a tense period in the trial. Secondly, in her judgment dismissing the applicant’s request for disqualification, on 12 October, her Honour stated at p 2:

“In relation to my statement referring to Mr Park as being insouciant, I should note that Mr Park has said in his submission to me that the reason that he was laughing at the time that I said this was that he was laughing at the lies of Mr Cha; and he said, in fact, that he was sorry about that. The fact remains that the reason I said that was – and I’m grateful to Mr Park for having conceded this – that he was in fact laughing at Mr Cha at the time and he was also sitting at the back of the court. Mr Park has also told me that he was sitting here every day and that he said that the reason he was sitting at the back of the court was he did not understand that he had to sit anywhere else and it was up to me to tell him where to sit.”

Her Honour then set out passages of the transcript in which she had requested him to sit at the bar table but stated that he did not do so: Judgment, p 9-10.

68 There was no challenge to the accuracy of her Honour’s statement that Mr Park had conceded he was laughing at the time. The fair-minded observer would presumably not have known at what he was laughing, but might reasonably have agreed with her Honour that he was treating the proceedings with a degree of levity, at least at the time her Honour made the comment. Taken in isolation the comment could not, in my view, have created a reasonable apprehension of bias against Mr Park. As the next relevant exchange did not take place until five days later, it is reasonable to treat the comment in isolation. Further, because the proceedings are in this Court’s supervisory jurisdiction, and the trial continued after the comment in question, not only would there be an issue as to whether that comment might have cumulative effect with other adverse comments made prior to the commencement of the review proceedings, but, if it were to be approached in that way (which generally speaking is appropriate) then account should also be taken of mitigating factors, including comments made by her Honour during her reasons on 12 October and the explanation given by Mr Park himself. I would place no weight on this aspect of the applicant’s challenge.

69 The next relevant exchanges took place on 10 October 2007, the 25th day of the trial, as it appeared that Mr Wheelhouse’s cross-examination was concluding and an issue arose as to the future course of the litigation. Mr Wheelhouse said he thought Mr Park intended to cross-examine but had no idea how long that would take: Tcpt, pp 1016-1017. The exchange which then took place between her Honour and Mr Park covers a lengthy passage in the transcript from pp 1017-1022. But to put it in context requires some reference to preceding events. The history of the matter over the earlier weeks is conveniently summarised by her Honour in the judgment delivered on Thursday, 4 October 2007, dealing with the two applications in relation to particulars. Before setting out the history, her Honour commenced with the following statement (Judgment, 4/10/07, p 5):

“The trial is now in its sixth week, and it is against this background that the plaintiff brings this application, and the second defendant seeks to continue its cross-examination of the plaintiff. Effectively, all that has happened in this litigation has been that the plaintiff has been examined in chief and is in the course of cross-examination.”

70 The judgment finished (p 26) with the following remarks:

“The last thing I want is to have to abort this trial in circumstances where the plaintiff has to come back and face yet another three weeks in the witness box. Mr Wheelhouse has told me – and I accept it as true – that he can complete his cross-examination in two days. In those circumstances to stop the plaintiff’s cross-examination now to require the service of further particulars is, in my view, poor case management.”

71 That judgment was delivered on a Thursday; on the morning of the following Monday (8 October) when the plaintiff resumed the witness box, her Honour said (Tcpt, p 857D):

“Yes, Mr Wheelhouse, whenever you’re ready and remember that I will be telling you at 4 o’clock on Wednesday in accordance with the judgment that I delivered on Friday that I will be putting a sunset clause on your cross-examination then.”

72 Shortly after the morning break on Wednesday, 10 October, the trial judge raised the question of what would happen after Mr Wheelhouse completed his cross-examination. She was informed that Mr Park intended to cross-examine and was told by him that he proposed to take “five days”: Tcpt, p 1017. That indication caused her Honour to ask, “Mr Park, are you serious?” Her Honour told Mr Park that he was not to revisit topics dealt with by Mr Wheelhouse and asked for an outline of issues that were to be the subject of his cross-examination. Mr Park then indicated that the plaintiff had told lies to Mr Wheelhouse and that he wished to prove that they were lies. That caused her Honour to ask Mr Park the number of imputations to which he had pleaded truth as a defence. The ensuing discussion, mainly between her Honour and Mr Park, occupied some three pages of the transcript. At times, they appeared to be at cross-purposes and her Honour, perhaps realising that she would encounter difficulties in trying to control the cross-examination changed tack and sought to ascertain why Mr Park had apparently sat silently by when her Honour had set the matter down for a further four weeks, without explaining that he would need five days for cross-examination. The high point of the applicant’s case in respect of this interchange was her Honour’s comment (Tcpt, p 1021) to the following effect:

“Look, Mr Park, if you think that I will permit you to cross-examine for five days about matters which have not been particularised when you must have heard me being very strict with Mr Wheelhouse, it’s really an insult to this court.”

73 The following pages involved an interchange largely between her Honour and counsel, the content of which is unedifying. It led her Honour to comment to counsel (Tcpt, p 1024), “Look, will you stop all of this. I’ve had enough of this.” She then stated in respect of Mr Park that it was “disgraceful conduct for him to sit there and say nothing in circumstances where he wasn’t even sitting at the bar table, and suddenly he tells me he wants to cross-examine for five days”: Tcpt, p 1025. Shortly thereafter, her Honour said it was “a great discourtesy to the court that I wasn’t told earlier”. She also indicated that there might be consequences for Mr Park in relation to a “costs order for not telling me that he intended to cross-examine for five days”.

74 These comments were followed by a comment to Mr Wheelhouse in the following terms (p 1025-1026):

“Look, Mr Wheelhouse, my problem is this: I am the trial judge, I am entitled to have some idea how long a case takes. If there’s any suggestion that anybody other than Mr Park is involved, then they will be involved in cost consequences as well. I can’t have a situation where people assure me, practitioners assure me, and I accept and believe that a case is going to be finished in four weeks, and then find that people have lied to me and not told me that in fact they have the intention of cross-examining for five days or longer. It’s just not acceptable.”

75 There was some further discussion with Mr Park, in the course of which Mr Wheelhouse appears to have left the courtroom and then returned, followed by a further exchange between her Honour and counsel. At p 1030, her Honour stated:

“My concern is that I feel I’ve been grossly misled. Promises were made to me when I set this matter down the first time that it would be finished in four weeks, and those promises were not kept. I then gave you another four weeks.”

76 On the morning of 12 October (Tcpt, p 1067) Mr Wheelhouse made an application for her Honour to disqualify herself. It appears that her Honour had, possibly inconsistently, accused Mr Park of sitting at the back of the Court and not following through an interpreter the exchanges during the proceedings in English and at the same time failing to indicate his intentions with respect to cross-examination when the time was fixed for the further hearing of the matter. Her Honour then complained that Mr Wheelhouse had not told her that she should make her own inquiries of Mr Park because, although as a co-defendant he was at least partly in the same camp, Mr Wheelhouse was not speaking with him and had not sought to ascertain his intentions in giving the estimate of a further four week hearing: Tcpt, p 1085.

77 Part of the disqualification application relied upon the passage in the transcript at p 1030 (set out at [75] above) as an indication “that Mr Park in some way has lied to you”: Tcpt, p 1101W. Her Honour responded (Tcpt, p 1102), at least partly correctly:

“That’s not talking about Mr Park. That’s my saying I’ve been misled by counsel; that’s you and Mr Evatt. I was most concerned.”

78 Read in isolation, the passages relied upon by the applicant (not all of which have been set out above) indicate a degree of intemperate language on her Honour’s part directed to Mr Park, but not only to him. As already noted, given the history of the proceedings, her Honour’s exasperation was likely to have evoked a degree of sympathy from the hypothetical bystander. The transcript reveals that the state of affairs was in large part the consequence of the behaviour of counsel, although it was Mr Park’s previously unrevealed intention to cross-examine the plaintiff for five days which triggered the intemperate language. To the extent that her Honour’s comments were directed to Mr Park personally, they may in part have been based upon a misapprehension as to his knowledge of the course of proceedings. It could also fairly be said that, as a party seeking to represent himself, he should have taken better steps to ensure that he was aware of what was occurring in the courtroom. On the other hand it might be said that her Honour was in part at fault for not taking steps to ensure that Mr Park was properly informed as to what was proposed, at various stages when directions were being contemplated. However, if that step were overlooked on occasion, it was undoubtedly a reflection of the difficulty in controlling the trial generally and could not have given rise to any suggestion of prejudice against Mr Park.

79 Nor it is immediately easy to see why a conclusion that Mr Park had conducted himself disgracefully, or with great discourtesy to the Court, demonstrated a basis for apprehending pre-judgment once it became apparent that the comments had been made on the basis of a misapprehension as to what Mr Park understood and as to what steps Mr Wheelhouse had or had not taken to consult him in relation to estimates of time.

80 The most troubling aspect of the comments set out at [75] above was the reference to the fact that “people have lied to me”. In her reasons for deciding to continue to hear the matter, her Honour treated that statement, amongst others, as directed to counsel, rather than Mr Park: Judgment, 12/10/2007, pp 12-13. It is not self-evident that the lay person sitting in the back of the Court would have so understood it. However, there is ambiguity in the passage as her Honour commenced with a reference to assurances given by practitioners and concluded with a reference to having been told of an intention to cross-examine for five days or longer. The former reference undoubtedly referred to counsel and the latter to Mr Park. The fact that Mr Park had not told her Honour something was presumably not the matter which could have constituted a lie. Whether counsel’s assurances were deemed to fall into that category is unclear. It is possible that there was something which was said by Mr Park, but was not identified, which was treated as a lie. As the ambiguity was manifest, a reasonable response would be to reserve judgment as to the judge’s views of Mr Park.

81 The next matter of complaint arose during Mr Park’s cross-examination of the plaintiff (which took about two days). The transcript revealed, not unexpectedly, that there were difficulties with many of his questions (at least as translated) and with Mr Cha’s responses (as translated). There was an exchange between her Honour and Mr Park as to whether a particular matter had been raised in his statement. Mr Park could not find it, quite possibly because it was not there, although he did not concede that. There was discussion about difficulties Mr Park may have had in finding the relevant passage and conveying that information because his version was in Korean and the one being used in Court was in English. That explanation, proffered by Mr Hughes, counsel for the second defendant, was implausible. Her Honour said (Tcpt, 17/10/07, p 1347):

“That’s what I find to be so disingenuous, that a man who says that this is in his own statement, who is cross-examining, who assures me that it’s in his statement ...

Look, Mr Park, as a member of the public, you have an obligation to be frank with me as the judge. If I can’t trust you to tell me things, then we can’t have a trusting relationship. There’s nothing wrong with you saying, ‘Look, it’s not in my statement because I forgot,’ or ‘I didn’t realise’, but when you tell me it’s in your statement and I have to waste time rushing through this statement to see if it’s there – we’ve now wasted 10 minutes on this, and if you knew it wasn’t in your statement – and I suggest to you that you did know, all you had to do was be honest and say, ‘Look, it isn’t in my statement; I didn’t know. It should go in,’ or something similar.”

82 The term “disingenuous” connotes a lack of candour or frankness, insincerity and possibly deliberate dishonesty.

83 Reading the transcript, from pages 1340 to 1350, it is clear that the matter about which her Honour was asking was dealt with evasively. It was not put to this Court that the matter was particularised in Mr Park’s statement, or that her Honour was wrong in that regard. She pressed upon Mr Park, somewhat persistently, that there was no relevant particular in his statement and that his suggestion to the contrary was untruthful. Mr Hughes, counsel for the second defendant, was also unable to find any reference, but did object to the line her Honour was taking with Mr Park and accused her Honour of “shouting at him” (p 1346) and placing undue pressure on him, knowing he had high blood pressure and was not well, by telling him he was a liar and dishonest and frequently reminding him of the time limits: p 1349.

84 The position of a trial judge dealing with cross-examination by a litigant in person is not always easy. The difficulties are compounded where the litigant in person is also a critical witness in his own case (and in the case of other defendants). Mr Park commenced his cross-examination on 16 October and continued through most of the following day. The exchanges referred to above came almost at the end of the cross-examination, which was completed at p 1355. The cross-examination before that time had not been uneventful. As with the other material, the exchanges between her Honour and Mr Park must be seen in context. Nevertheless, the particular exchange on this occasion proceeded for some time. If her Honour were satisfied that the matter the subject of cross-examination should have been dealt with in Mr Park’s statement and was not, one available course was to disallow the question. Further, the trial judge was entitled to reprimand Mr Park if she believed he was trifling with the Court: see Galea v Galea (1990) 19 NSWLR 263 at 283 (Meagher JA) and Michael v Western Australia [2007] WASCA 100 at [64] (Steytler P, McLure JA and Miller AJA agreeing). It may have been unwise of her Honour to engage in extended disputation with a party whose credibility she was expecting to assess when he gave evidence in due course. To the extent that lengthy exchanges between the Court and counsel may have enhanced the exasperation felt by her Honour at the way in which the case was running, it nevertheless appears that her Honour took out her frustrations on Mr Park.

85 Two other matters of complaint should be noted. The first was a suggestion that her Honour had given advice to the plaintiff as to how the case might be conducted. That complaint arose from the use her Honour made of a folder of documents provided by the applicant for a specific purpose. The folder contained other documents, not relevant to that purpose, which had been discovered by the applicant but had not been tendered by the plaintiff. The matter arose when her Honour asked a question of Mr Wheelhouse in relation to a particular document and then, when asked which document she was looking at said “I’m not sure if these documents have been tendered or not”, before seeking to identify the document she was looking at. On being advised that they were not part of the tender, she asked “how can I be expected to know that”: Tcpt, 9/10/07, p 971.

86 After some further exchanges with counsel, her Honour told counsel for the plaintiff that she intended to hand the documents back, at first thinking they were the plaintiff’s documents and should be returned to the plaintiff. In so stating, she said (Tcpt, p 973):

“Mr Wheelhouse is cross-examining, I’m raising matters with him, based on documents that I’ve been given, not knowing that they haven’t been tendered. I’m returning that document. It contains material that I think I can say – I won’t say it’s prejudicial, but it certainly is documentary evidence which I think you can say probably assists the plaintiff and which you haven’t tendered Mr Dibb. In those circumstances, I am returning them to you. You can do with them what you wish.”

87 The complaint based on this material is without substance. There was clearly confusion about the status of the documents and her Honour, on discovering that a particular document had not been tendered, but appeared to assist the plaintiff’s case sought to return it and, in doing so, explained the basis upon which she thought it should not be in her hands. To interpret those comments as giving “advice” to the plaintiff is so remote from the flavour of the exchanges revealed on the transcript as not to be an inference which a reasonable bystander would draw. Further, it may be noted that the exchange had nothing to do with Mr Park and therefore cannot be seen as coloured by the later dealings with Mr Park or any impression of pre-judgment which might have been raised by them.

88 The second matter to note is the suggestion that her Honour’s “demeanour” during Mr Park’s cross-examination of the plaintiff was such as might lead a fair-minded lay observer to apprehend bias.

89 This material arose after the rejection of the disqualification application, but there is no reason why it cannot be relied on in proceedings in this Court for relief in the supervisory jurisdiction. It is appropriate for this Court to have reference to any part of the transcript in assessing the possible effect of particular comments on the reasonable lay observer, in which context, her Honour’s explanations in rejecting the disqualification request may be included. It is, however, difficult to assess questions of “demeanour” on the basis of a transcript. In respect of other material, the applicant played parts of the tapes of the hearing in Court. They revealed nothing remarkable about her Honour’s tone of voice in addressing Mr Park.

90 Taking into account the various matters addressed above, it is difficult to assess what the reasonable observer would have thought if he or she had sat patiently through 29 days of hearing. One possible view is that he or she would reserve any firm opinion until Mr Park came to give his evidence, in order to observe whether he was accorded a fair hearing. In my view that would be a reasonable approach and one which should be attributed to the hypothetical observer.

Conclusions
91 If the present application were to succeed, the trial before Gibson DCJ would be aborted and would have to start again before another judge. While it is undoubtedly open to this Court to determine the impression which the trial judge may have conveyed to a fair-minded observer in relation to her Honour’s ability and willingness to assess the evidence of Mr Park (when he entered the witness box) with objectivity and detachment and without any element of pre-judgment based on her comments as to his behaviour during the course of a trial, this Court should not intervene unless it is clearly established that the point has been reached where the fair-minded observer might think that the trial judge might not adopt such an approach, regardless of what transpired during the remainder of the trial.

92 For the reasons given, it has not been clearly established that that point has been reached. As noted above, there may be reasons for disquiet which would tend to support the inference sought to be drawn by the applicant. However, this is not a case where, as in Ex parte Armstrong, the trial judge has made express statements as to her unwillingness to believe Mr Park when he comes to give evidence on oath. The remarks in this case may also be contrasted with those considered in Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568, a case in which the trial judge had remarked in the course of the hearing that certain doctors “think you can do a full week’s work without any arms or legs” and that their opinions were “almost inevitably slanted in favour of the GIO by whom they had been retained, consciously or unconsciously”. The comments made in this case appear in quite a different context, in the course of a trial which was difficult to manage and which did not involve any express indication that the trial judge had formed any view, adverse or otherwise, in relation to the evidence Mr Park might later give.

93 If the present application be premature, as I believe it is, the applicant is not precluded from raising the issue again after judgment. Vakauta is authority for the proposition that a party who stands by and takes no objection in the course of proceedings to conduct which may indicate an apprehension of bias may be found to have waived any right of objection which would otherwise have arisen. However, objection need not involve an interlocutory challenge to the continuation of the proceedings. As explained by Toohey J in Vakauta (at p 587):

“That is not to say that the litigant in such a position must expressly call upon the judge to withdraw from the case. It may be enough that counsel make clear that objection is taken to what the judge has said, by reason of the way in which the remarks will be viewed. It will then be for the judge to determine what course to adopt, in particular whether to stand down from the case. For counsel to invite the judge to withdraw from the case may be quite premature, particularly if the judge acknowledges the apparent bias in what has been said and thereafter takes steps to dispel that apprehension.”

94 On the basis that any adverse impression given in the present case cannot be described as inevitably ineradicable, it is inappropriate for this Court to express a final view as to whether, if the matter were to be assessed on a final basis, a reasonable apprehension of bias would have been demonstrated. Depending on the further course of the proceedings, such a complaint may remain available to the defendants if ultimately unsuccessful. No more need or should be said about the merits of the application. Nor should the failure to resolve the matter in this Court be seen as leaving some unresolved doubt as to the validity of the proceedings, to any greater extent than inevitably occurs when interlocutory applications are resolved adversely to one party in the course of a hearing, leaving a potential ground of appeal available if that party is ultimately unsuccessful.

95 Because substantive relief is not appropriate, it is unnecessary to consider the plaintiff’s complaints about the form of the order for prohibition sought by the applicant. However, it is correct to say that the source of complaint did not relate to the “further listing” of the proceedings, nor did it involve the judges of the District Court as a body. The appropriate order would have been one restraining Gibson DCJ from continuing to hear the proceedings.

96 The following orders should be made in this matter:

(1) Dismiss the application for leave to appeal from the decision of Gibson DCJ to continue to hear the proceedings.

(2) Dismiss the application for an order in the nature of prohibition restraining Gibson DCJ from continuing to hear the proceedings.

(3) Order the Applicant to pay the First Respondent’s costs of the proceedings in this Court.

(4) Otherwise dismiss the amended ordinary summons filed on 12 December 2007.

97 BELL JA: I agree with Basten JA.

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23 September 2009

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