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Page | policy decisions do not have an individualised effect. So procedural fairness can only be implied if the decision affects an individuals interest in a way substantially different to the way it affects the public at large. Eg. SA v OShea: Even though the decision not to release a sex-offender was in the public interest, and was thus a highly political decision, it included considerations personal to OShea (ie. the Parole Boards report on him) procedural fairness applied. Salemi: The decision must directly affect the person individually, not simply as a member of the public or class of public. An administrative decision of the latter kind is a policy or political decision not subject to judicial review. Kioa: Decisions which only indirectly affect the rights/interests/expectations of individuals include: Decision to impose a tax; Decision to impose general charge for services. The test for procedural fairness is narrower than the test for standing: WA v Bropho: An interest which attracts principles of natural justice will always give standing; but a grievance that gives standing does not always involve a legitimate expectation that is protected by principles of natural justice. Representative standing cannot be translated into application of procedural fairness. [Justification? If a decision affects a large number of people, it would be impractical to give each a hearing] Rights, interests or legitimate interests Kioa v West (Mason): Rights means legal rights (Eg. proprietary right).

NATURE OF PROCEDURAL FAIRNESS Rules of procedural fairness regulate actual conduct of the decision-maker, while other grounds of judicial review (eg. irrelevant consideration, act for improper purpose) regulate the process of reasoning. Whether judicial review is available for breach of procedural fairness (in particular, the hearing rule) is approached through a 2-stage analysis. Value of Procedural Fairness Procedural fairness is valuable because of: Instrumental importance: fair procedures help achieve the purposes of substantive rules/principles achieve the right outcome. Intrinsic benefits: participation, justice is seen to be done, equal treatment, psychological contributions, democratic, gives people respect & dignity. Rules of PF create tension between administrative efficiency, and fairness to the Pl. The more procedures required, the more difficulty to the administrator (more red light). 1) WHEN DOES PROCEDURAL FAIRNESS APPLY? (SCOPE) Kioa v West: Procedural fairness applies to an administrative decision which has a direct & immediate effect on rights, interests or legitimate interests of an individuals; subject to clear contrary statutory intent. If there is sufficient interest for standing, then usually procedural fairness applies (Bropho). Direct & immediate effect This means individualised decisionmaking. The decision must be about individuals. Broad, high-level

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Page | Disclosure of the adverse material; Opportunity to rebut adverse allegations; Adequate notice (More time); Oral hearing; Legal representation; Cross-examination of adverse witnesses. Notice of adverse information influencing decision making Kioa v West: The administrator must notify the affected person about adverse information in the administrators mind, that is prejudicial to the persons interests (including reasons). How much the person needs to know, depends. Put another way, the administrator must give the Pl a reasonable understanding of the adverse allegations which could influence its decision-making. Kioa v West: Even adverse information that is not crucial/decisive of the decision, must be disclosed to the Pl (if its in the decision-makers mind). *Information that the applicant was consorting illegal immigrants was not decisive of the decision to deport (b/c not in the reasons given). Held: K should have the opportunity to reply to the prejudicial allegations denial of PF. Exp Miah: Even adverse information that is in the public domain, must be disclosed (if its in the decisionmakers mind). Reasonable opportunity to prepare defence Exp Polemis: The affected person must be given a reasonable opportunity to reply to the case made against him. What is a reasonable opportunity, depends on what his argument is. Kioa v West; Russell v Duke of Norfolk: The procedures required

Interest is very broad (Eg: personal liberty, status, preservation of livelihood & reputation, financial interest). Same as the standing test. Legitimate expectation fills the situation where the decision does not deprive of a legal right or interest (eg. renewal of licence) procedural fairness applies even if the decision takes away something you have not got, as long as you legitimately expected to get it. Contrary statutory intention Cases show that judges are reluctant to say that Parliament did not intend procedural fairness to apply a shift in focus to content of procedural fairness (Kioa v West). Ainsworth v CJC: Could not use expressio unius maxim to impliedly exclude procedural fairness. Exp Miah: Specification of certain procedures (Code) & right of appeal to Tribunal, were insufficient to exclude procedural fairness. Kioa v West: A strong manifestation of contrary statutory intention is needed to exclude procedural fairness. Procedural fairness may be excluded where its application would be inconsistent with the statutes operation or purposes. But the court allows Parliament to exclude procedural fairness expressly & clearly (eg. Migration Act successfully removed procedural fairness). 2) WHAT DOES PROCEDURAL FAIRNESS REQUIRE? (CONTENT) A) Hearing rule: Fair Hearing Procedural fairness requires a fair hearing. A fair hearing may require:

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Page | because it destroys public confidence in the justice system, and the whole point of the bias rule is to make the decisionmaker look trustworthy; and NOT because it is hard to determine the subjective state of mind of the decision-maker (we do it in criminal law all the time).

depends on the circumstances of the particular case (ie. are flexible). Relevant circumstances include: The nature of the inquiry; The subject-matter; and The rules under which the decision-maker is acting. Pl bears the burden of proving that the decision was unfair because it did not involve a procedure required by fairness. Test is to ask: What is Pls defence argument to the allegation? Possible responses: Wrong facts: The alleged event never happened. Wrong interpretation of statute: The allegation is false/mistaken need to Xexamine. Poor credibility: The allegers are biased or dislike me need to X-examine. What procedures are necessary in order to make Pls case? Why? Were those procedures adopted in the hearing? No denial of PF. B) Bias rule: Impartial decisionmaking Basic rule: The decision-maker must have an impartial mind open to persuasion during the hearing, actually & in appearance. It applies to judges, and also administrators (but with less stringency). Rationale of bias rule = to maintain public confidence in the integrity of decision-makers. The rule against bias is flexible (because of reasonable in ostensible bias test). 3 categories of bias: Actual bias, Deemed bias, Ostensible bias. Actual Bias Courts are reluctant to find actual bias:

Deemed Bias Dimes v Grand Junction Canal: Where the decision-maker has a direct financial interest in the outcome of the decision, he is deemed to be biased. *Court of Chancery affirmed orders made in favour of a canal company, in which the Lord Chancellor (who sat on the appeal) held shares. *There was no evidence that the Chancellors decision was actually affected by the shareholding. The HOL set aside the decree. Ebner v OTB: If the decision has no effect on the financial interest of the decision-maker, then there is no deemed bias. (The outcome of the decision would not affect the price of the shares that the judge owned no deemed bias.) Apprehended Bias Livesey v NSWBA: There is ostensible bias if a fair-minded observer would reasonably apprehend that the judge is not bringing an impartial mind to the issue. Grounds for a reasonable apprehension of bias include: The decision-maker has previously expressed views about a case, or announces preliminary views during a case (Livesey v NSWBA) [ie. has prejudged the case];

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Page | Its Good because: If counsel is forced to object during the trial, the judge can correct himself by declaring that although he has preconceptions of the witnesses, he is open to persuasion on the evidence (Vakauta v Kelly). Also saves time. Thus, improves public confidence. Its Bad because: The bias rule (esp. ostensible bias) is for the benefit of the community, not just the individual individual should not be able to waive away the communitys interest in the bias. Also, waiver defeats the purpose of a hearing, which is supposed to be free from bias in all cases. Thus, damages public confidence. Rule of Necessity Laws v ABT: Because statute can override common law, the bias rule cannot: Stop a body set up to do statutory functions from performing those functions; or Frustrate the intended operation of a statute. Deane: But the rule does not apply where its application would involve positive & substantial injustice; and when it applies, the rule does so only to the extent that necessity justifies. Usually no issue of necessity, because a body has lots of delegates, and there are changes in members over time.

The decision-maker conducted the matter in an unjudicial way (Damjanovic v Sharpe Hume); The decision-maker has a close relationship with a party; and The decision-maker acts as prosecutor & judge (Stollery v Greyhound Racing). Test = [Given the remarks made, relationship etc] would a fairminded observer reasonably think that there might be bias? Preconceptions: Livesey v NSWBA: A fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment, if a judge hears a case at 1st instance after he has, in a previous case, expressed clear views about: a question of fact which constitutes a live & significant issue in the subsequent case; or the credit of a witness whose evidence is of significance on such a question of fact. Vakauta v Kelly: Ostensible bias does not exist merely because a judge has preconceived views about the reliability of the evidence of a particular medical witness, even if the judge discloses the existence of such views in the course of dialogue. Distinguish preconceived views about reliability of medical witnesses, from preconceived views about credibility of nonexpert witnesses. 2 exceptions to the ostensible bias rule: Waiver of right to object Vakauta v Kelly: Where a party is aware of a right to object on grounds of apprehended bias, but fails to do so prior to the decision, then the party has waived that right to object. (cant wait for final judgment and then attack it) Good or bad rule? Depends on whether it enhances the purpose of the bias rule (ie. public confidence).

HEARING CASES Kioa v West Scope & content of Procedural Fairness. *K applied for an extension to his temporary entry permit.

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Page | authorities, procedural fairness does not require giving of advance notice of the deportation order. Ainsworth v Criminal Justice Commission Contrary statutory intention (Scope). *CJCs report criticised Ainsworths conduct, and recommended against Ainsworth participating in the gaming machine industry. *Ainsworth group was not given an opportunity to be heard in opposition to the reports recommendation. *S 3.21(2)(a) required CJC to act fairly in proceedings. *Appellants commenced proceedings alleging breach of procedural fairness, arguing that: the Act obliged the CJC to comply with procedural fairness; or the duty arose under the general law, and was not excluded by the Act. Held: The report adversely affected reputation [a sufficient interest to attract procedural fairness] of an individual [Ainsworth] in a direct & immediate way prima facie, procedural fairness applies. Appellants argument #1: Statute requires fairness in proceedings excludes fairness if no proceeding, and reporting is not a proceeding Appellants argued the expressio unius est exclusio alterius maxim: If a statute specifically requires fairness in 1 area, it does not require it in all other areas. The CJCs functions & responsibilities are so important that proceedings includes any step, no matter how informal, in relation to its functions & responsibilities proceedings includes reporting s 3.21(2)(a)

remained in Australia allegedly because his home country was devastated by a cyclone. *Minister decided to refuse Ks applications for entry permits, because of certain allegations about K that were not put to K. *K argued that the Ministers decision to refuse his application breached procedural fairness. Threshold: [The deportation order clearly affected the interest of K (personal liberty) in an individualised way.] The Migration Act as amended required the administrator to give reasons for his decision statute did not displace the obligation to comply with procedural fairness requirements. Content: Procedural fairness requires the administrator to bring to a persons attention the critical factor on which the admin decision is likely to turn, so that he may have an opportunity of dealing with it. Procedural fairness demands that K should have the opportunity of replying to allegations which were extremely prejudicial to K. There were 2 such matters: The comment that: had K been genuine, he would have sought a decision on his application rather than change his address without notifying the Dept. The comment that: Ks concern for illegal immigrants & his active involvement with others seeking to circumvent Australias immigration laws, must be a source of concern. The other materials which K complained of consist of policy & undisputed statements, which does not call for a chance to reply. Appeal allowed, deportation quashed order. Obiter: In the case of a prohibited immigrant who intends to remain without lawful right and evades

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Page | being the union membership procedural fairness applied. Issue = content of it] Since Pl could not be expected to know that the expulsion rule would be used, fairness requires that the Pl be given notice that the expulsion rule might be used to expel him. When the Council at the adjourned hearing desired to proceed under the expulsion rule, they should have adjourned the hearing again so as to give him notice of the fresh charge. They failed to do so natural justice breached. Pls appealing of the expulsion was not affirmance of the expulsion. He could still complain of a want of natural justice. Ex parte Polemis PF required more time to prepare. *Pl had notice that he was charged for oil polluting. *Pl was given only 5.5 hours to prepare his case. Judges refused his adjournment application. *Magistrate heard the charge & found him guilty. The judges refusal of adjournment was a breach of natural justice: Pl was not given a reasonable opportunity to prepare his defence [that the pollution was not from his ship], because: He had no time to prepare supporting evidence (eg. oil samples, witnesses, state of weather); He had no time to read the prosecutors report of samples; He had poor English. Irrelevant that, in hindsight, there was no merit in Pls case. If procedural fairness requires adjournment, then it must be given, even if Pl was sailing away that day and may not return. Anyway, the judges could have got the Pl to place a deposit.

requires procedural fairness for the report. Even if proceedings does not cover any step, procedural fairness is presumed by common law to apply in the situations not specifically dealt with by the Act. The expressio maxim does not displace this presumption, because the Commissions nature & its functions & responsibilities are such that Parliament did not intend it to act unfairly. Appellants argument #2: Procedural fairness not denied in the entire process Appellants argued that although CJC was not procedurally fair, the committee could intervene to ensure fairness in the processs entirety, there is fairness. Principle: Where a decision-making process involves different steps, procedural fairness is satisfied if the entire process entails procedural fairness. But the CJC & Committee had separate processes no guarantee that the Committee will intervene to correct CJCs unfairness CJCs unfairness = denial of procedural fairness. Anyway, in practice: the report is already publicly available & appellants reputation has been damaged denial of procedural fairness.

Annamunthodo v Oilfields Workers Trade Union No notice. *Pl was charged with offences against certain union rules, under which Pl could only be fined, but not expelled from the union. *Pl was given a hearing, but he chose not to attend the adjourned hearing. *At the adjourned hearing, the council expelled him under a rule he had NOT been charged under. [The decision to expel directly & immediately affected an interest,

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Page | mistrust (if any) will still exist in oral interview. 4) Mere importance does not compel an oral interview. 5) In some cases, credibility is not an issue. SO Rules of natural justice do not require an oral hearing in every application for refugee status. However, they may require an oral hearing in a particular case, where: **credibility is in issue [eg. if applicant asserts factual wellknown info, then credibility is not in issue oral hearing not needed]; the applicant is disadvantaged by being limited to submissions in writing. A green light decision. Court is sympathetic to the administrator. White v Ryde Municipal Council PF did not require legal representation at hearing. *Neighbours complained of Pl keeping 30 cats. *Council recommended to prohibit Pl from keeping more than 2 cats at a time. *Pl was informed that he had 4 days to represent to the committee as to why the resolution should not be given effect. *Pl requested to have his lawyer present at his hearing, but was refused. *At Pls hearing, Pl alleged that there were no unsanitary conditions, he was only keeping the cats temporarily, and they killed rats. *Council confirmed its decision. Pls hearing was fair. Here, fairness did not require legal representation at the hearing, because all that was involved were simple factual matters which could be stated without skills of a trained advocate: There were no legal issues [eg. difficult statutory interpretation] involved; Pl was facing no charge;

Chen Zhen Zi v Minister for Immigration & Ethnic Affairs PF did not require oral hearing in all cases. *Refugee = person who has a wellfounded fear of persecution, is outside the country of his nationality, and is unable to seek protection in that country. *An applicant has a right to have a primary decision on refugee status reviewed by the Refugee Status Review Committee. *Pl argued that procedural fairness required an oral interview in every RSRC review, because: 1) Refugee status contained subjective element (fear) & objective element (wellfounded). Must interview to assess subjective element. 2) Process of determining refugee status involves judgments on political, religious, racial & human rights situation in a foreign nation. The review officer could misunderstand these. 3) Applicant may need to rely on interpreter, and may not give a full written account of their case in fear of it being disclosed to his country 4) A correct decision is important to applicant & family. 5) No oral hearing meant that the review officer cannot test the applicants credibility. Not disputed that rules of PF applied. The Court held that the Pls arguments only required oral hearings in some, not all, cases: 1) Dont need interview if objective element not satisfied already. 2) Misunderstanding will not necessarily be eliminated by oral interview. 3) Some applicants have an adequate command of English. Also, the same apprehension &

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Page | Anyway, the facts are special (importance of police).] National Companies and Securities Commission v News Corporation PF did not require trial procedures. *NCSC held a hearing to investigate its suspicion that News Corp committed certain offences. Only if the investigation showed something wrong, would NCSC lodge proceedings in the Supreme Court. *s 38(1): At a hearing: (a) the proceedings shall be conducted with as little formality & technicality, and with as much expediency, as possible; (b) the Commission is not bound by rules of evidence; (c) the Commission may permit a person to intervene; (d) the Commission shall observe rules of natural justice. *The Commission proposed to conduct the hearing as follows: Commission can summon any witness; Each witness may have legal representation during examination, who may reexamine; Each witness will be provided with a transcript of his evidence; If the Commission proposes to publish any matter adverse to any person, it will afford that person an opportunity to be heard & call evidence on such matter before publication. *The Commission disallowed News request for trial procedures: News & its legal representatives to be present throughout the whole hearing; News to intervene in proceedings; Its lawyer to cross-examine witnesses at hearing; News to call evidence in reply;

There were no witnesses to cross-examine.

ORourke v Miller PF did not require crossexamination or confrontation. *2 members of public complained that a probationary constable (Pl) on duty was drunk. *Commissioner put the allegations to Pl, who replied that the witnesses were wrong. *Pl wanted to confront/crossexamine the 2 witnesses, but Commissioner did not allow it. *Commissioner decided (with power) to sack Pl anyway. Pl, as probationary constable, had a legitimate expectation that his appointment would be confirmed the decision to terminate his appointment affected his legitimate expectation procedural fairness applied. Pl was told about what was alleged against him, and was given a fair opportunity to state his defence procedurally fair. Procedural fairness did NOT extend to require Commissioner to allow Pl to confront/cross-examine the witnesses, because: **There was no reason why the witnesses (who were strangers to Pl) concocted their story; Some of the Pls statements lent credence to that story; It is very important to the public that persons whose character is doubtful, should be kept out of the police force. [Implicit reasoning could be: If require the witnesses to be crossexamined, then it deters people from reporting police misconduct. We dont want this PF does not allow cross-examination] [Can criticise this decision: The credibility of witnesses are in issue cross-examination is necessary. But can argue that credibility was not really in issue, because there was no real issue of fabrication.

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*After the date of application, the

News to make submissions to the Commission before it makes any findings. Statute requires trial procedures? The Commissions investigation will comply with rules of natural justice, if it proceeds to: Allow each witness called to give evidence to be legally represented, with freedom for that representative to examine the witness; Provide a transcript of his evidence. Procedural fairness does NOT require the hearing to be treated as a court trial, because: Hearing in the statute is not used in a technical sense that requires court trial procedures; it is an ordinary word which must take its meaning from its context in the Act. The nature of the investigation is such that: There is no charge or direct legal consequence; No issue can be determined; The hearing is designed to discover facts; and The procedure is not adversarial, but inquisitorial. The statutory framework recognises need for expedition. News Corp can cross-examine & call evidence if proceedings are subsequently brought in the Supreme Court. At the hearing, the NTSC is unlikely to fail to call News Corps witnesses case will probably be made known during the hearing.

Ex Parte Miah Exclusion/modification of procedural obligations by statute: How clear contrary statutory intention has to be. *M, a Bangladesh national, applied for a protection visa on the basis that he was a refugee.

delegate received new information that the Bangladesh government changed. The delegate thought that the ousting of the BNP meant people were more tolerant delegate considered it decisive against Ms application. *Delegate did not inform M of the new material and give him an opportunity to respond to it before deciding to refuse. Procedural fairness applied? Legislation was not intended to exclude common law procedural fairness requirements, because: there are no clear words to that effect; the subject matter of the Act; the Act implemented international obligations. Content of procedural fairness requirements? Defs 1st argument Def argued that use of the word Code in the heading of subdiv AB excludes any procedural fairness requirements outside subdiv AB. But this is a weak reason. Eg: Parliament could not have intended to exclude bias/corruption rules. Examples of material that would NOT require comment by the applicant include: Non-adverse country information; Favourable/corroborative information in the public domain; and Information based on circumstances described in the application. An applicant must be given an opportunity to comment where the delegate proposes to use new material (of which the applicant may be unaware) and which could be decisive against the application; This disclosure is stronger where the material concerns circumstances that have

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Page | justice requirements natural justice. Urgency of original decision. Here, there was no urgency natural justice. Judicial/Internal appellate body: If the appellate body is a court, it is easier to infer that the right to appeal was intended to limit/exclude rules of natural justice at the earlier level. Here, the appellate body is a Tribunal natural justice. De novo/Limited appeal: If de novo, easier to infer that natural justice was intended to be excluded/limited. Here, there was de novo no natural justice. Nature of interest; Consequences for individual, Subject matter of legislation. Here, nature of interest = personal security; Consequences = serious threats; Subject matter = international obligations towards vulnerable citizens natural justice. Balancing these factors, the right to appeal to the Tribunal is NOT intended to exclude/limit natural fairness. Denial of procedural fairness is grounds for relief under s 75(v). BIAS CASES Laws v Australian Broadcasting Tribunal No ostensible bias (prejudgement); necessity. *In Laws broadcast, he criticised expenditure on Aboriginal welfare. Complaints were made to the ABT. *Relevant provisions: S 119(1) Broadcasting Act: Where a person broadcasts a program in respect of which the program standards were not complied with, the Tribunal may, by direction, prohibit or restrict

changed since application date, and is being used after considerable delay. It is even stronger if the material is equivocal or contains info that the applicant could not reasonably have expected to be used. Here, the new information was decisive of the claim, and was totally new, was considered 13 mths after date of application, and M could not have reasonably expected this information to be used against him (since both parties were arguably unwilling to offer M protection). The delegate did not inform M he would use the election results, nor offer M an opportunity to comment breach of procedural fairness. Defs 2nd argument Def argued that because the Act gave a right to full de novo review by the Tribunal, Parliament intended to limit requirements of natural justice at the stage where a delegate is examining the application. Factors relevant in determining whether a right to full review excludes/limits rules of natural justice: Preliminary/Final original decision: The more final the decision is, the more likely natural justice applies. Here, the decision was final natural justice. Public/Private original decision: If private decision, it is less likely that natural justice applies (because reputation not affected as much). Here, the decision was private no natural justice. Formalities required for original decision. Here, the requirement to give reasons made it harder to say that an appeal right was intended to limit natural

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The 3 members went beyond this,

the persons presentation of broadcasts. S 119(2) required the Tribunal to call upon the person to show cause why it should not act under subs (1) before so acting. S 17: A pre-condition to the exercise of s 119 powers is the holding of an inquiry into the proposed exercise of powers. *3 Tribunal members discussed the complaints with the manager & director of 2GB, but not Laws. *Decision 1: 3 Tribunal members decided that the broadcasting of Laws programme breached a racial vilification standard. *Decision 2: The Tribunal decided to hold an inquiry (required by s 17) to decide whether there is any breach of the standard, and if so, what the penalty should be under s 119. *A Tribunal representative gave a radio interview, in which she repeated the substance of the Tribunals first decision. *Laws sued the Tribunal and the representative for defamation arising out of the interview. *In its defence, the Tribunal pleaded that what was said in the interview was of substantial truth & related to a matter of public interest. *Laws argued that the representatives statements reflect the corporate view of the Tribunal members, and that in filing & maintaining its defences to the action the Tribunal members have asserted that Laws contravened RPS 3 all Tribunal members are disqualified from participating in any future inquiry as to Laws noncompliance. Decision 1 valid? The Tribunal was only authorised to conduct a preliminary investigation to decide whether it should hold a formal inquiry.

by deciding the matter in strong terms ultra vires decision. [Laws himself was not given a chance to talk to the Tribunal about the complaints denial of PF] Decision 1 disqualified the 3 ABT members from inquiry? The 3 ABT members preliminary investigation amounted to positive findings of contraventions of the radio standard, which would lead an objective bystander to reasonably apprehend that they had predetermined whether Laws had failed to comply with the standard the 3 members were disqualified from participating in the inquiry. Interview disqualified all ABT members from inquiry? The interview & its content was not necessarily done on behalf of the individual members not all members are disqualified. Defence disqualified all ABT members from inquiry? Actual bias? No, the defences filed do not constitute assertions that the matters pleaded are true/correct. Deemed bias? If the action succeeds, the government will ensure that the Tribunal has funds to meet the verdict an observer will not suppose that the members who participate in the inquiry would have any material interest in resolving the relevant issues. Apprehended bias? A fair-minded observer would know that filed defences do NOT amount to assertions of belief & therefore prejudgement observer would conclude that the other members would bring an unprejudiced & impartial mind to the inquiry no apprehended bias. [Criticism: But its unsatisfactory that a fair-minded observer would know that defences are not assertions of belief (too technical). Also, defences should

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Waiver? By not objecting to the

be assertions of truth/correctness] Necessity: Even if apprehended bias attaches to all members, the necessity rule allows a member to participate in inquiry. So only the 3 members are disqualified from the inquiry. Vakauta v Kelly Ostensible bias (prejudgement); waiver. *During a trial, the judge criticised evidence given by the Defs medical witnesses in previous cases, including: that unholy trinity; the GIOs usual panel of doctors who think you can do a full weeks work without any arms or legs; the doctors views are almost inevitably slanted in favour of the GIO by whom they have been retained, consciously or unconsciously. *Defs counsel did not object to the remarks. *In a reserved judgment, the judge: said that the evidence of the doctor was as negative as it always seems to be and based as usual upon his nonacceptance of the genuineness of any plaintiffs complaints of pain; and prefaced concessions made by the doctor with Even Dr Lawson thought. During the trial Ostensible bias? Yes. The remarks show an adverse attitude to the expert witnesses would have led a fair-minded observer to reasonably apprehend that the judge might not have an unprejudiced mind. But Dawson no apprehensive bias because alerting the parties to a preconception assists an impartial approach. The judge can still assess the evidence fairly.

judges remarks, the Def waived any right to appeal against an adverse decision on the ground of what had been said at the hearing. Reserved judgement Ostensible bias? The observations made about the doctor in the judgement (in the context of remarks made during the trial) amounted to ostensible bias, because they would lead a reasonable or fair-minded observer to conclude that the judge was heavily influenced by views he had formed on other occasions rather than by an assessment based on the case in hand. Waiver? No. Since the judgment was reserved, there was no opportunity for Def to object to its contents. Damjanovic v Sharpe Hume & Co Ostensible bias (prejudgement & other conduct). *D (Pl) sued for forgery & improper payment of a cheque. *Vukic (who had no legal qualifications) represented D, who knew little English. *Before evidence in the forgery proceedings was completed, Gibb DCJ decided the case based on the improper payment of the cheque. *Her Honour decided not to believe Pl in that proceeding. A reasonable bystander would have apprehended bias, because: The judge stated in her judgment that she disbelieved D on the basis of evidence he gave not only in the present case, but in the other cases; [prejudgement] and The judge fell short of acceptable judicial behaviour, by saying shut up; sarcastically referring to Ms Vukics spectacular silence; and sarcastically & critically commenting how very convenient. [other conduct]

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did not know of their right to object. Anyway, the judge revived the matter in her judgement in the findings she made about Ds credibility in the forgery cases. Order: A new trial before a judge other than Gibb DCJ.

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