A docket judge's use of robust language such as 'nonsense' and 'trivial' at a case management hearing does not give rise to apprehended bias where the remarks reflect tentative views expressed in the course of argument with counsel, particularly in the context of modern case management under ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth). The fair-minded lay observer is taken to understand that judges will adopt an interventionist approach, express tentative views on the merits, and probe counsel as to the relative merit of proceedings. Where misleading or deceptive conduct is alleged in respect of a communication to identified individuals, the characteristics of those recipients must be considered in determining whether the conduct was objectively misleading.
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