Where a party seeks to rely on a final judgment to establish apprehended bias following an earlier unsuccessful recusal application, it will usually be necessary to plead actual bias. However, where the same factual complaints support both apprehended bias and constructive failure to exercise jurisdiction, the court may address the matter under the latter head without first determining the bias question. A 'no evidence' challenge to a negative finding (that a causal link did not exist) cannot succeed where the appellant bore the onus of establishing the affirmative finding; the proper characterisation of such an error is a constructive failure to exercise jurisdiction where the tribunal failed to address critical evidence and reached conclusions inconsistent with unrejected facts and expert opinions.
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