British American Tobacco Australia Services Ltd v Laurie & Ors

[2009] NSWCA 414

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Courts and judges generally
3. › Judges
4. › Disqualification for interest or bias
5. › Apprehended bias by way of prejudgment
6. › Where judge previously made credit and factual findings adverse to a party in interlocutory judgment in separate proceedings
7. › Whether findings expressed in such terms of finality as to give impression to fair-minded observer that judge might not bring impartial mind to issues
8. › Whether interlocutory and qualified nature of findings negated apprehension of bias
1. Practice and Procedure
2. › Courts and judges generally
3. › Judges
4. › Disqualification for interest or bias
5. › Apprehended bias
6. › Material to which fair-minded lay observer may be assumed to have regard
7. › Whether judge's subsequent explanation of earlier potentially prejudicial statements may be taken into account
8. › Whether explanation in later application in different case may be considered
1. Practice and Procedure
2. › Courts and judges generally
3. › Judges
4. › Disqualification for interest or bias
5. › Apprehended bias
6. › Fair-minded lay observer
7. › Attributes and knowledge assumed
8. › Whether observer assumed to understand interlocutory nature of proceedings and admissibility of hearsay evidence
9. › Whether observer should take into account procedural characteristics of particular tribunal
1. Practice and Procedure
2. › Appeal
3. › Dust Diseases Tribunal
4. › Right of appeal
5. › Decision 'in point of law'
6. › Whether erroneous refusal to disqualify for apprehended bias involves decision in point of law
7. › Dust Diseases Tribunal Act 1989 (NSW), s 32(1)

Quick Take

An interlocutory finding of fraud does not necessarily give rise to apprehended bias requiring disqualification where the finding is expressed in qualified and guarded terms, acknowledges the limited evidentiary basis, and the tribunal permits reagitation of the issue at trial. The case distinguishes Kwan v Kang and Southern Equities v Bond, confining those authorities to situations where findings are expressed in emphatic language of absolute finality. A judge's subsequent explanation of earlier potentially prejudicial statements may be taken into account by the fair-minded lay observer, but the weight to be given to such an explanation depends on the circumstances, including the temporal and procedural distance from the original statements. The application of the correctly identified apprehended bias test to particular circumstances does not constitute a 'decision in point of law' for the purposes of s 32(1) of the Dust Diseases Tribunal Act 1989.