Category Archives: Bias

Ebner v Official Trustee in Bankruptcy [2000] HCA 63 | 7 December 2014

ON 7 DECEMBER 2000, the High Court of Australia delivered Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337; 176 ALR 644; 75 ALJR 277 (7 December 2000).

Per Gleeson CJ, McHugh, Gummow and Hayne JJ at [6]:

“Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), 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 [13]. That principle gives effect to the requirement that justice should both be done and be seen to be done [14], a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.”

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Thomas Bonham v College of Physicians (“Dr Bonham’s case”) 8 Co Rep 107a; 77 Eng Rep 638 | 1 December 1610

ON 1 DECEMBER 1610, the Chief Justice of the English Court of Common Pleas, Sir Edward Coke, delivered Thomas Bonham v College of Physicians 8 Co Rep 107a; 77 Eng Rep 638.

Dr Bonham had been fined and imprisoned by the Royal College of Physicians for continuing to practise as a Physician in London. He brought a case for false imprisonment.

Coke CJ held that Charter granted by the Parliament to the College of Surgeons was invalid due to bias.

Coke CJ at 118a ruled:

“The censors cannot be judges, ministers, and parties; judges to give
sentence or judgment; ministers to make summons; and parties to have the
moiety of the forfeiture…”

Coke CJ at 118a said:

“It appears in our books that in many cases the common law will control acts of Parliament and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such an act to be void.”

The case establishes the rule against bias as a constitutional limit on the exercise of parliament’s legislative powers. In short, (1) a person may not be a judge in their own case and (2) an Act of Parliament is invalid if it conflicts with a basic principle of the common law (such as that a person may not be a judge in their own case).

 

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R v Watson; Ex parte Armstrong [1976] HCA 39 | 3 August 1976

ON 3 AUGUST 1976, the High Court of Australia delivered R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 (3 August 1976).

http://www.austlii.edu.au/au/cases/cth/HCA/1976/39.html

The decision sets out the test under Australian law for apprehended bias.

A judge must not hear a case if “the parties or the public might reasonably suspect that he was not unprejudiced and impartial”: per Barwick CJ, Gibbs, Stephen and Mason JJ at 263.

Public confidence in the administration of justice is of fundamental importance: “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”: at 263.

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Re JRL; Ex parte CJL [1986] HCA 39 | 30 July 1986

ON 30 JULY 1986, the High Court of Australia delivered Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 (30 July 1986).

http://www.austlii.edu.au/au/cases/cth/HCA/1986/39.html

During a luncheon adjournment, a Family Court counsellor went to the chambers of a judge and had a private conversation in which she expressed certain things including a recommendation that separate representation being granted to the child. Her views were adverse to the husband. Counsel for the parties were then invited to the judges chambers where they were introduced to the counsellor and informed of her recommendations. Comments made by the judge indicated that there had been a private conversation between the counsellor and the judge. After lunch, counsel for the wife made an application seeking appointment of separate representation for the child. The husband asked for the judge to disqualify himself.

The High Court held that it was reasonable for the husband to apprehend that the judge might not bring and impartial or unprejudiced mind to the matter having had a private conversation with the counsellor who had formed an adverse view of him. On that basis, the court made absolute the order nisi for a writ of prohibition directing that the judge be prohibited from proceeding further with the matter.

The case is notable for Justice Mason’s warning that judicial officers are required to discharge their obligations unless disqualified to do so. They must not readily accept suggestions of appearance of bias, otherwise parties might be encouraged to seek their disqualification, without justification, for strategic reasons.

Per Mason J at 352:

“There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.

Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

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Smits v Roach [2006] HCA 36 | 20 July 2006

ON 20 JULY 2006, the High Court of Australia delivered Smits v Roach [2006] HCA 36; (2006) 228 ALR 262; (2006) 80 ALJR 1309 (20 July 2006).

http://www.austlii.edu.au/au/cases/cth/HCA/2006/36.html

The High Court held that the NSW Court of Appeal was correct in holding that the appellant was estopped from raising a conflict of interest as it’s senior counsel had waived the right to object at the start of the proceedings. The High Court held that the appellant was bound by the conduct of it’s senior counsel on the question of waiver.

The court also held that in determining bias on the part of a judicial officer, the appeal court must (1) identify why a judge might have decided the case in a manner other than on its legal or factual merits, and (2) explain the logical connection between the matter complained of and the feared deviation from impartial decision making.

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South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16

South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 (16 February 2007).

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2007/16.html

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Smits v Roach [2006] HCA 36

ON 20 JULY 2006, the High Court of Australia delivered Smits v Roach [2006] HCA 36; (2006) 228 ALR 262; (2006) 80 ALJR 1309 (20 July 2006).

http://www.austlii.edu.au/au/cases/cth/HCA/2006/36.html

The High Court held that the NSW Court of Appeal was correct in holding that the appellant was estopped from raising a conflict of interest as it’s senior counsel had waived the right to object at the start of the proceedings. The High Court held that the appellant was bound by the conduct of it’s senior counsel on the question of waiver.

The court also held that in determining bias on the part of a judicial officer, the appeal court must (1) identify why a judge might have decided the case in a manner other than on its legal or factual merits, and (2) explain the logical connection between the matter complained of and the feared deviation from impartial decision making.

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