SC2227
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

SCRA NO 62 OF 2018

PHILIP KAMAN

V

THE STATE

Waigani: Batari J, Berrigan J
2021: 25th May and 2nd July

DISQUALIFICATION – SLIP RULE APPLICATION - Actual Bias – Principles considered – Allegations of actual bias are of the most serious nature; they must be distinctly made and clearly proven; cogent evidence is required – Allegations unfounded and based on nothing more than dissatisfaction with factual findings – Apprehended Bias – Principles considered - Application misconceives the nature of a slip rule application – Application dismissed. 

The applicant filed a slip rule application in respect of the Supreme Court decision dismissing his appeal against conviction and sentence on 19 October 2020 in David Kaya and Philip Kaman v The State (2020) SC2026.  Prior to making the slip rule application, the applicant sought to disqualify all three members of the Supreme Court which dismissed his appeal on the basis of reasonable apprehension of bias and proven actual bias.  At the hearing of his application the applicant resiled from his application to have Mogish and Batari JJ disqualify themselves on the basis of either actual or apprehended bias.  He maintained his application with respect to Berrigan J.

Held: 

1)	An allegation of actual bias must be distinctly made and clearly proven.  Cogent evidence is required: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 50.  The test of actual bias requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Limited v Nicholls & Others [2011] 244 CLR 427.

2)	The test for apprehension of bias is objective.  The principles to be applied in determining whether there is a reasonable apprehension of bias are well established. The test for recusal is “whether an objective observer, knowing all surrounding facts, would be left with an apprehension, not a conviction that the judicial officer was predisposed, by matters extraneous to a proper adjudication, to reach a particular conclusion”: Boateng v The State [1990] PNGLR 342; PNG Pipes Pty Ltd and Sankaran Venugopal v. Mujo Sefa & Ors (1998) SC592; Yama v Bank South Pacific (2008) SC921.  This includes 'a fair minded, lay observer' as considered in Livesay v. NSW Bar Association (1983) 151 CLR 288; Gobe Hongu Ltd v. National Executive Council & Ors [1999] N1964. In Yama v. Bank South Pacific Ltd (2008) SC921, the Supreme Court observed that an objective, fair minded, lay observer “is to be attributed with having some knowledge of the way in which lawyers and judges work”. 

3)	It is to be presumed that a judge is impartial and that the person being observed is “a professional judge whose training, tradition and oath or affirmation require the judge to discard the irrelevant, the immaterial and the prejudicial”: Johnson v. Johnson [2000] HCA 48.

4)	Judges should not too readily accede to applications for disqualification, whereby parties may effectively influence the choice of a Judge in their cause: Gobe (supra) , Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352; [1986] HCA 39; 66 ALR 239.  Judges should resist from being driven from their Courts by the conduct or assertion of parties: Raybos Australia Pty Ltd v. Tectran Corp. Pty Ltd (No. 4) (1986) 6 NSWLR 674 (at 689).

5)	The apprehension must be firmly established:  In Re JRL; Ex parte CJL [1986] HCA 39.  The “suspicion or apprehension of bias must be based on reasonable, not fanciful, grounds”: Application by Herman Joseph Leahy (2006) SC981.  

6)	The application of the apprehension of bias principles involves two steps.  It is necessary first to identify the facts, matters and circumstances by reason of which it is said that a judge might decide a case other than on its legal and factual merits.  The second is to articulate the logical connection between those facts, matters and circumstances and the apprehended deviation from the course of deciding the case on the merits: Yama v Bank South Pacific (2008); SC921 adopting and applying Ebner v. Official Trustee in Bankruptcy [2000] HCA 63; Smits v. Roach [2006] HCA 36.

7)	None of the factual bases upon which the applicant relies have been established. None of those matters, even if established would demonstrate actual bias. The allegations of bias are based on nothing more than dissatisfaction with factual or legal findings.  Such applications should not be entertained.  The Court should not engage in a debate on the merits of a case that has been finalised.  To do so would encourage similar misguided applications in abuse of the Court’s process by disgruntled litigants, and severely undermine confidence in the finality of decision making.  

8)	No apprehension of bias arises because of any connection between a judge’s knowledge of the Supreme Court proceedings and the matters he or she is required to adjudicate on the slip rule application, the purpose of which is to allow the Court to correct its own mistakes with respect to a glaring mistake, error or slip of law or fact on a critical issue that is clearly manifest, and not arguable, on the face of the record:   PNG Law Society v David Rickey Copper (2018), Injia CJ, unreported.  The contention fundamentally misconceives the nature of a slip rule application.  

9)	The application is dismissed.

Cases Cited:
Papua New Guinean Cases

Boateng v The State [1990] PNGLR 342
National Capital District Commission v Yama Security Services Ltd (2017) SC1575 
Gobe Hongu Ltd v. National Executive Council & Ors [1999] N1964
State v A'aron (2003) N2432
Hitron Pty Ltd v Papua New Guinea Telecommunications Authority and Paul Ginis (2000) N1970
Gwasamun v Commissioner for Police (2010) N3902
PNG Pipes Pty Ltd and Sankaran Venugopal v. Mujo Sefa & Ors (1998) SC592
Yama v Bank South Pacific (2008) SC921
Gobe Hongu Ltd v. National Executive Council & Ors [1999] N1964
Application by Herman Joseph Leahy (2006) SC981
PNG Law Society v David Rickey Copper (2018), Injia CJ, unreported
Nambawan Super Ltd v Paraka (trading as Paul Paraka Lawyers) (2019) N7935 
Anderson Agiru (2003) SC704
Popuna v. Oua (2017) SC1564
Application by Joseph Kintau (2011) SC1125

Overseas Cases

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 
Bilgin v Minister for Immigration and Multicultural Affairs (Bilgin v Minister) (1997) 149 ALR 281 
Livesay v. NSW Bar Association (1983) 151 CLR 288
Johnson v. Johnson [2000] HCA 48
Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 
Raybos Australia Pty Ltd v. Tectran Corp. Pty Ltd (No. 4) (1986) 6 NSWLR 674 
Webb v. R [1994] HCA 30; (1994) 181 CLR 41.
Ebner v. Official Trustee in Bankruptcy [2000] HCA 63
Smits v. Roach [2006] HCA 36
British American Tobacco Australia Services Ltd v. Laurie [2011] HCA 2
Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48

Counsel

Mr P. Kaman, in person
Mr C. Sambua, for the State  

RULING ON APPLICATION TO DISQUALIFY

2nd July, 2021

1.	BATARI J:  At the end of the ruling by her Honour Justice Berrigan against the application against her to disqualify from hearing a slip-rule application, I added some remarks.  I also indicated this would be in writing which I now do.

2.	The application to disqualify was initially moved against all the members of the Bench (Batari, Mogish and Berrigan JJ).  It mattered little that the applicant recanted during the hearing and proceeded against her honour Justice Berrigan only.  The decision dismissing the appeal was unanimous.  It was absurd and a fallacy to maintain a claim of reasonable apprehension of bias only against a member of the Bench who drafted the decision of the Court.  The decision and the consequential orders of the Court were not reached lightly, or by one judge and merely endorsed by other members of the Bench in dereliction  of a constitutional duty to make a decision collectively or individually and provide reasons for the decision.  

3.	A unanimous decision is the result of consensus views from consultations and discussions amongst members of the Bench.  It is the universally accepted norm that each member of the Bench may write separately expressing his or her views towards the same end-result.  Or the decision may be drafted under, “BY THE COURT”.  Or, as in this case, a member of the Bench may be nominated to draft the leading decision with the other members of the Bench concurring with the reasoning and the proposed orders with or without adding their own.

4.	So, in this case, I think the real intention behind the application is for a differently constituted Bench to hear the slip rule application starting with the leave application.  That is untenable for two reasons.  The first is that a slip rule application is made before the same bench that made the decision.  The application cannot be heard by a differently constituted Bench.  Else, there is no slip.

5.	Secondly, the decision of the Supreme Court is final and not appealable pursuant to the hierarchy of the Courts under s. 155 (1) and (2) (a) of the Constitution.  It is settled that a second appeal or review on the same issues under s. 155 (2) (b) is not available:  Application by Anderson Agiru (2003) SC704, (Kapi DCJ, Salika, J, Sakora, J).  Furthermore, Constitution s. 155 (4) does not permit a differently Constituted Supreme Court to review that determination Application by Joseph Kintau (2011) SC1125 (Batari J, Manuhu J, Yagi J); Popuna v. Oua (2017) SC 1564, (Gavara-Nanu J, Kariko J, Kassman J.)

6.	The application to disqualify a judge or all members of the Court for perceived bias based on the decision of the Court is misconceived for all the reasons as alluded to by her Honour, Justice Berrigan.  The application is dismissed and the application for leave to prosecute a slip rule application be referred to the listing Judge for listing.

7.	BERRIGAN J:  The applicant has filed a slip rule application in respect of the Supreme Court decision dismissing his appeal against conviction and sentence on 19 October 2020 in David Kaya and Philip Kaman v The State (2020) SC2026.

8.	Prior to making the slip rule application, the applicant sought to disqualify all three members of the Supreme Court which dismissed his appeal on the basis of reasonable apprehension of bias. 

9.	The application was in the following terms (emphasis mine):

“(a) Pursuant to Order 9, Rule 11 of the Supreme Court Rules 2012 and Section 155(4) of the Constitution, her Honour Justice Berrigan J, be disqualified from hearing the applicant’s Slip Rule Application filed 04th November 2020 on the grounds of reasonable apprehension of bias by her Honour.”

“(b) If Order 1(a) above is affirmed, then pursuant to Order 9, Rule 11 of the Supreme Court Rules 2012 and Section 155(4) of the Constitution, his Honours Justices Batari J and Mogish J also be disqualified from sitting and determining the applicants slip rule application filed 04th November 2020 because both his Honours failed to provided their own findings and reasons with respect to conviction and admitted on record to having fully read, appreciated and consented to her Honour Berrigan J’s findings and decision given on the 19th October 2020.  Further, both his Honours Batari J and Mogish J cannot sit in the applicant’s slip rule application filed herein as they would be seen as coming with ‘unclean hands’ having both consented to and being privy to glaring errors, omissions and or misapprehension(s) of fact made by her Honour Berrigan J in their Court Decision of 19 October 2020.”

10.	In the event that the orders were granted the applicant sought to have a differently constituted Supreme Court claim jurisdiction over the matter and either hear and consider the merits of the applicant’s slip rule application or quash the applicant’s conviction and enter an acquittal. 

11.	The application was supported by an affidavit by the applicant and a 42 page submission.  Whilst the application itself only referred to an apprehension of bias on my part, the applicant contended both in his affidavit and submissions that all three judges “erred or participated to misconstrue issues and questions of fact”, and that a reasonable apprehension of bias has been established together with “proven actual bias”.

12.	As such, the applicant initially contended that all three members of the Supreme Court must be disqualified from sitting on his pending slip rule application. 

13.	At the hearing of his application the applicant acknowledged that such allegations are very serious and must not be made lightly.  Despite that, upon questioning by the President, Batari J, the applicant resiled entirely from his application to have Mogish and Batari JJ disqualify themselves on the basis of either actual or apprehended bias, and apologised unreservedly.  In itself, this demonstrates a glaring lack of good faith on the part of the applicant which tarnishes the entirety of his application, including that part which he maintains against me.

14.	In National Capital District Commission v Yama Security Services Ltd (2017) SC1575 the Supreme Court held that at least in the first instance, an application for disqualification of one member of the Supreme Court should be considered on its merits and ruled on by the particular judge concerned.

15.	That case was concerned with the situation where an application is made prior to the hearing of a matter before the Supreme Court.  The situation here is quite different.  

16.	The leading decision, whilst initially drafted by me, was agreed to by all members of the bench that heard the applicant’s appeal.  It is thus the decision of all three members of the Court.

17.	As the application initially stood it was contended not only that I deliberately misstated the facts in a manner inconsistent with the face of the record but that all three members of the bench colluded in that distortion.

18.	As it now stands, the applicant contends that I deliberately misstated the facts and that two members of the Supreme Court, in dereliction of their judicial duty and function to independently form their own view, allowed themselves to be misled by errors so manifestly gross that they demonstrate actual bias on my part.

19.	In either case the applicant levels the gravest of accusations against not one but three members of the Supreme Court, and as such, against the Supreme Court itself as the final appellate court of this country.  

20.	The applicant has effectively conceded that the first basis on which he proceeded is a spurious one.  For the reasons set out below, the second is also without merit.

Actual Bias – Relevant Principles  

21.	The Constitution vests judicial authority in the Courts.   It requires judges to uphold the Constitution and the law at all times and to do so without fear or favour, affection or ill-will.   It is of fundamental importance that a judge act independently and with unremitting impartiality.  Justice must be done and seen to be done.

22.	This is essential to ensuring public confidence in the judiciary and protecting its independence from interference:  Gobe Hongu Ltd v. National Executive Council & Ors [1999] N1964.

23.	Very few cases of actual bias have been reported in this jurisdiction.  

24.	In State v A'aron (2003) N2432, Davani J dismissed allegations of actual and apprehended bias made after she refused defence counsel leave to re-examination beyond what arose in cross-examination.  No evidence was led to establish that she had any actual bias and the application on the basis of apprehended bias was dismissed.   

25.	In Hitron Pty Ltd v Papua New Guinea Telecommunications Authority and Paul Ginis (2000) N1970, Sevua J dismissed claims made about what he said in court, by a person who was not in court at the time.  He also dismissed claims that he was actually biased because he was a customer of one of the parties.

26.	Makail J stated in Gwasamun v Commissioner for Police (2010) N3902:

“It is said that actual bias usually flows from pecuniary or propriety interest. Hence, actual bias is present in a case whenever a judge has a direct pecuniary or propriety interest however small, in a case or before her. A finding of actual bias leads to an irrebuttable presumption of bias and, without more may result in the disqualification of the judge, may be a basis for challenging the decision in court: see Michael A Ntumy’s Administrative Law of Papua New Guinea, Cases, Materials and Text at p 542 (supra).”

27.	In Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17) the High Court of Australia held that an allegation of actual bias must be distinctly made and clearly proven.  Cogent evidence is required. Where the issue is actual bias in the form of prejudgement the applicant must establish that a judge is “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”.  At [19] they explained:
“Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias.  The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion.  The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias”. 
28.	The test of actual bias requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48; 244 CLR 427 at 437 [33].

Apprehended Bias – Relevant Principles  

29.	The test for apprehension of bias is objective.  It does not require an assessment of the state of mind of the judicial officer in question.

30.	The principles to be applied in determining whether there is a reasonable apprehension of bias are well established. The test for recusal is “whether an objective observer, knowing all surrounding facts, would be left with an apprehension, not a conviction that the judicial officer was predisposed, by matters extraneous to a proper adjudication, to reach a particular conclusion”: Boateng v The State [1990] PNGLR 342; PNG Pipes Pty Ltd and Sankaran Venugopal v. Mujo Sefa & Ors (1998) SC592; Yama v Bank South Pacific (2008) SC921.  This includes 'a fair minded, lay observer' as considered in Livesay v. NSW Bar Association (1983) 151 CLR 288: Gobe Hongu Ltd v. National Executive Council & Ors [1999] N1964. An objective, fair minded, lay observer “is to be attributed with having some knowledge of the way in which lawyers and judges work”: Yama v. Bank South Pacific Ltd (2008) SC921. 

31.	It is to be presumed that a judge is impartial and that the person being observed is “a professional judge whose training, tradition and oath or affirmation require the judge to discard the irrelevant, the immaterial and the prejudicial”: Johnson v. Johnson [2000] HCA 48.

32.	Judges should not too readily accede to applications for disqualification, whereby parties may effectively influence the choice of a Judge in their cause: Gobe (supra) , Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352; [1986] HCA 39; 66 ALR 239.  Judges should resist from being driven from their Courts by the conduct or assertion of parties: Raybos Australia Pty Ltd v. Tectran Corp. Pty Ltd (No. 4) (1986) 6 NSWLR 674 (at 689).

33.	A Judge should disqualify himself by reason of apprehension of bias under one or more of the following categories, where it is demonstrated that: a) he has an interest in the case before him, which interest may be direct, indirect, pecuniary or otherwise; b) by his conduct including published statements, whether such conduct is in the course of, or outside the proceedings; c) where the Judge, through association or relationship, either by himself, his spouse or children, has a direct pecuniary interest in the case; and d) where the Judge had presided over an earlier case or has had some knowledge of prejudicial and inadmissible facts: Gobe following Webb v. R [1994] HCA 30.  

34.	The “suspicion or apprehension of bias must be based on reasonable, not fanciful, grounds”: Application by Herman Joseph Leahy (2006) SC981.  

35.	General knowledge on the part of a Judge, obtained in the course of previous employment, of the subject matter of legal proceedings will not, by itself, give rise to a reasonable suspicion or apprehension of bias in the event that the Judge deals with the subject matter in a judicial capacity.  If a Judge's knowledge of the subject matter of legal proceedings is contended to be the basis of a suspicion or apprehension of bias there must be a real connection between the Judge’s knowledge and the issues for adjudication in those proceedings, eg if the Judge has expressed a prior opinion on the issues for adjudication”: Leahy (supra).

36.	In Re JRL; Ex parte CJL [1986] HCA 39, Mason J stated that the apprehension of bias must be firmly established (emphasis mine):

“It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. 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. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of pre-judgement and this must be “firmly established”....

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.”

37.	The application of the apprehension of bias principles involves two steps.  It is necessary first to identify the facts, matters and circumstances by reason of which it is said that a judge might decide a case other than on its legal and factual merits.  The second is to articulate the logical connection between those facts, matters and circumstances and the apprehended deviation from the course of deciding the case on the merits: Yama v Bank South Pacific (2008); SC921 adopting and applying Ebner v. Official Trustee in Bankruptcy [2000] HCA 63; Smits v. Roach [2006] HCA 36.

Consideration – Actual Bias  

38.	As I understand it, the facts, matters and circumstances which the accused contends give rise to not only the apprehension of bias but establish actual bias, are that the decision “misapprehended” three facts.  

39.	For the reasons set out below, I did consider to what extent it was appropriate to respond in any detail to the allegations raised. The matters may be readily disposed of, however, and the process of doing so may demonstrate the point I hope to make.  

40.	Again, I emphasise that this was a decision by the Court, not just myself.    

41.	Firstly, the applicant contends that the decision failed to recognise that ownership was in issue on the appeal.  This is a nonsense.  As the face of the decision shows, it was identified as the first area of appeal, at [27(a)], and dealt with under a separate heading dedicated to that issue, “Property belonging to the State”, at paragraphs [30] to [43]. 

42.	Secondly, the applicant contends that the decision misapprehended the facts when it said that the issue of property belonging to the State was not in dispute at the lower court, and was explicitly conceded in submissions on verdict by defence counsel. 

43.	The applicant referred to submissions made at the hearing of the appeal to the effect that the applicant sought to quash the indictment at the commencement of the trial on the basis that the property did not belong to the State.  That may be but by the time submissions on verdict were made at trial that position had been abandoned.  Positions are taken and objections raised; some are maintained, others are abandoned.  That is within the nature of any legal proceeding, as the applicant, a lawyer himself, should well appreciate, and as is well demonstrated by his decision on this application to abandon his claims of actual and apprehended bias against each of Batari and Mogish JJ.   

44.	Defence counsel made it clear during submissions on verdict at the trial that the only element in contention was dishonesty. The records speaks for itself.  There is no factual foundation in this contention.  Furthermore, despite the concession at the lower court, the decision on appeal specifically considers the basis of the trial judge’s decision for finding that the monies belonged to the State, and sets out over several paragraphs the reasons for finding that there was no error on his part having regard to established legal principle and Supreme Court authority. 

45.	In summary, the factual basis of the applicant’s contention on this point is without merit.  Moreover, it is beside the point because the concession was not the basis of the decision on appeal.

46.	Finally, the applicant contends that the decision misapprehended and misquoted the evidence of Gary Maso Paia, the Chief Internal Auditor, of the Department of Treasury, to the effect that the monies had to be acquitted.  

47.	As made clear in the decision, the issue of acquittal, whilst strengthening the finding with respect to ownership, was not necessary to it.  Any argument is therefore largely beside the point.  Furthermore, both Mr Paia and the accused himself gave evidence at the trial that Mr Paia demanded acquittal of the funds.  There is no misapprehension here.  A close review of the applicant’s submissions reveals that the applicant is in fact seeking to challenge the effect of that demand but that is a matter that has already been heard and determined on appeal.  Whether this provides a basis for a slip rule application is not the issue on this application.   

48.	This leads me to make the following points.  Firstly, none of the matters relied upon have been established.  Secondly, none of the matters even if established would demonstrate actual bias.  The applicant may not agree with the findings but they are just that, factual findings made by a judge in the course of determining an appeal, agreed and adopted by all members of the bench.  

49.	In my view, allegations of actual bias based on nothing more than dissatisfaction with factual or legal findings should not be entertained.  The Court should not engage in a debate on the merits of a case that has been finalised.  To do so would encourage similar misguided applications in abuse of the court’s process by disgruntled litigants, and severely undermine confidence in the finality of decision making.  

Consideration – Apprehended Bias  

50.	I also reject the applicant’s contention that an apprehension of bias arises because there is a sufficient connection between my knowledge of the Supreme Court proceedings and the matters which I am required to adjudicate on the slip rule application, and which I have “already misapprehended”.

51.	Again, I emphasise that whilst I drafted the leading decision, the findings were not just mine, but those of all three members of the Court. Furthermore, the contention either fundamentally misconceives the nature of a slip rule application, or is a mischievous attempt to bring a slip rule application before a differently constituted Supreme Court in “anticipation of an adverse outcome”. 

52.	Both myself and my brother judges necessarily have knowledge of the Supreme Court proceedings.  The purpose of a “slip rule” application is to allow the Court to correct its own mistakes with respect to a glaring mistake, error or slip of law or fact on a critical issue that is clearly manifest, and not arguable, on the face of the record:   PNG Law Society v David Rickey Copper (2018), Injia CJ, unreported.  A slip rule application shall not be listed for hearing before the Court unless a judge of the Court making the order from which the application arises, or that Court, has granted leave for the application to proceed:  Order 11, Rule 32(3) of the Supreme Court Rules. In the normal course the application is heard before the same bench which heard the appeal.

53.	The fact that some of the matters relied upon by the applicant on his slip rule application were determined to the applicant’s dissatisfaction on the appeal does not mean that either myself, or any member of the Court, might not determine his application for leave for a slip rule application other than with an impartial and unprejudiced mind.   If the applicant’s contention was correct, no slip rule application could ever be heard.  

54.	In the High Court of Australia decision of British American Tobacco Australia Services Ltd v. Laurie [2011] HCA 2, French CJ said, in regard to a finding properly made by a judge in the course of an interlocutory ruling or in earlier proceedings, that:

“It is an area in which courts should be astute not to defer to that kind of apprehension (of bias) that is engendered by the anticipation of an adverse outcome, rather than a legitimate concern about partiality. By way of example, the fact that a judge who has made a finding of fact adverse to a party on particular evidence is likely to make the same finding on the same evidence, is not of itself indicative of bias. It could be indicative of consistency subject to the judge having an open mind when it came to argument about the effect of the evidence.”

See Nambawan Super Ltd v Paraka (trading as Paul Paraka Lawyers) (2019) N7935 at [16].

55.	I note again the comments of Mason J said in Re JRL; Ex parte CJL.

56.	Both comments are analogous here.  The applicant will have an opportunity to raise his arguments on the leave application, and on any subsequent slip rule application, if leave is granted.  The fact that I have already expressed a view on the appeal about those arguments, and on this application for disqualification, is not indicative itself of bias.  It is indicative of consistency, subject to me retaining an open mind when it comes to argument about whether there was some “glaring mistake, error or slip of law or fact, on a critical issue that is clearly manifest, and not arguable, on the face of the record”. There is no evidence to suggest that I will approach it with a closed mind.  Some of the grounds of the slip rule application are similar to those raised on this application for disqualification.  The fact that I have expressed a view on similar issues in addressing claims of actual bias is a consequence of the approach taken by the applicant.  It is my view that a fair-minded lay observer, in possession of all relevant facts, and having some knowledge of the way in which lawyers and judges work would appreciate that.  

57.	My obligation to disqualify myself for apprehended bias is matched by an obligation to hear all cases where I am not disqualified.  I am not disqualified from hearing the slip rule application and I refuse to be driven from the proceedings:  PNG Pipes; Re Polites; Ex parte Hoyts Corporation (1991) 173 CLR 78; [1991] HCA 31; Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17; Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39; AJH Layers v Careri (2011) 34 VR 236, [19] .

58.	A party must positively satisfy the judge that the test for apprehended bias is established. A judge should not disqualify him or herself without good cause and must not reach that conclusion lightly (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; Honda Australia Motorcycle v Johnstone [2005] VSC 387; Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39)

59.	As above, the applicant has withdrawn his objection to Batari J or Mogish J sitting on the application for leave to apply for a slip rule application.  I will be guided by the decision of the President as to which of us will hear the application for leave.

Orders

(1)	The relief sought in the application filed 6 April 2020 is dismissed.

(2)	The application for leave to prosecute a slip rule application be referred to the listing Judge for listing.
___________________________________________________________
Applicant In person 
Office of the Public Prosecutor: Lawyers for the Respondent