What’s the difference between apprehended bias and just being rude? Recent judgments from the Supreme Court of Victoria and the Family Court

In the Anglo-Australian system of law, it is axiomatic that a judicial or administrative decision must ordinarily be made by a neutral decision maker. That is, a decision must be made by someone who is not, and who does not appear to be, biased against any party whose interests are liable to be affected by the decision. Leaving aside cases of ‘necessity‘ (in which the only persons who have lawful authority to make a decision are persons who might be perceived as biased), cases in which a statutory scheme expressly authorises the making of a decision by an apparently biased decision maker, and cases of ‘waiver‘ (in which an affected party makes no complaint of bias until after a decision has gone against it), a decision made by a decision maker who appears to be biased against a party (a decision maker who is affected by ‘apprehended bias’) is tainted by jurisdictional error and is liable to be set aside.

Types of apprehended bias

At a broad level, the question whether apprehended bias exists is ‘resolved by asking whether a fair-minded lay observer might reasonably apprehend that the [decision maker] might not bring an impartial mind to the resolution of the question the [decision maker] was required to decide.‘ However, when the test is stated at this level of generality, it is uninformative and is difficult to apply consistently. Instead, it is better to think of apprehended bias in terms of loose ‘categories’. Generally speaking, the common law recognises three distinct forms of apprehended bias that may affect a judicial or administrative decision. These are:

Of course, these three categories of apprehended bias may overlap. For example, a legal practitioner who has been appointed to a court or tribunal may be called upon to decide a case that involves a former client, that raises an issue on which they have previously given advice (including the correctness of pursuing a course of conduct that the legal practitioner recommended or advocated for), and that involves a factual dispute in relation to which they have information that is confidential to a party or that otherwise has not been adduced in evidence. For this reason, a number of apprehended bias cases – many of which were helpfully summarised by Brereton J in British American Tobacco Australia Ltd v Gordon – have dealt with the position of judges who were formerly legal practitioners.

But there is a form of apprehended bias that does not always fit neatly within the three categories described above. This form of bias arises when a decision maker – for no apparent reason – behaves in a way that is unduly rude, demeaning or hostile to a party or their representative. Two recent Australian judgments have dealt with this form of bias.

The judgment of Kaye JA in Jones v Fish

In Jones v Fish, the plaintiff sought judicial review of an opinion given by a medical panel under Pt 6 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). Pursuant to that Act, a court may refer a ‘medical question’ (as that term is defined in s 3) concerning a person’s entitlement to compensation to a medical panel; the medical panel’s answer to the question must then be adopted and applied by the court (and by any other court, body or person). In reaching its answer to a medical question, a medical panel may (and almost always will) examine the person whose entitlement to compensation is in issue.

In Jones v Fish, the plaintiff alleged that during the course of a medical examination, a member of a medical panel had conducted himself in a way that gave rise to a reasonable apprehension of bias. She alleged that the member had interrupted her on a number of occasions while she was attempting to recount her medical history, that he had made a number of derogatory comments about her evidence (such as ‘you’re walking a thin line’ and ‘you’re not helping yourself’) and that he had mischaracterised or misunderstood surveillance video taken of her on behalf of the defendant. Most importantly, she alleged that before the examination had concluded (and before he had conferred with any of the other members of the medical panel), the member stood up and shouted at her words to the effect of ‘it’s not a work injury’. The member then motioned for the plaintiff to leave the examination and did not acknowledge her when she said goodbye.

It should be noted that the plaintiff’s evidence in Jones v Fish was uncontradicted, and that there was no transcript or recording of the medical panel’s examination before the Court. In this regard, while the members of the medical panel could have chosen to give evidence, they could not be compelled to do so; further, the Convenor of Medical Panels (acting appropriately and in accordance with the usual practice of administrative tribunals) did not appear before the Court to defend the validity of the medical panel’s decision. In addition, the defendant chose not to cross-examine the plaintiff. For these reasons, the Court had no choice but to accept the plaintiff’s allegations about the member’s conduct. It may be that if the allegations had been challenged, some or all of them would have been rejected, or that the member’s conduct might have been satisfactorily explained. Of course, it may also be that the plaintiff’s allegations would have been vindicated in any event – it is impossible to know.

Based on the plaintiff’s uncontested evidence, Kaye JA concluded that the member’s conduct had caused the medical panel’s decision-making process to miscarry in three ways. First, by stating conclusively that the plaintiff’s injury was not work related, the member had expressed a concluded view on the merits of the plaintiff’s case before it was appropriate to do so. In this regard, his Honour considered that the medical panel was required to develop a ‘joint collaborative opinion’, and that for a member of the panel to form a firm conclusion on the plaintiff’s case before consulting the other members was to prejudge that case. Second, the member’s conduct had prevented the plaintiff from explaining key aspects of her medical history and had thus prevented her from putting her case to the medical panel. Finally, by preventing the plaintiff from properly explaining her medical history, the member’s conduct had prevented the medical panel from addressing a number of considerations that it had been required to consider in determining whether the plaintiff’s injuries bore the necessary causal relationship with her employment.

The judgment of the Family Court in Adacot & Sowle

The conduct of the trial judge in Adacot & Sowle has been widely reported on in the news media. Throughout a three day trial in the Federal Circuit Court, his Honour persistently interrupted, demeaned and bullied the legal practitioners acting for the father in a family law proceeding. The trial judge’s conduct consisted of unfairly impugning the honesty and professionalism of the father’s barrister, interrupting submissions with snide and sarcastic remarks, unnecessarily criticising both of the father’s legal representatives for not bowing sufficiently, and (perhaps most bizarrely) hectoring the father’s solicitor about the meaning of the word ‘just’. Based on these matters, the Full Court of the Family Court concluded that:

“[A] fair-minded observer might well think that his Honour bore significant animus towards Queen’s Counsel. Equally the primary judge’s treatment of the father’s solicitor, when he took over the conduct of the hearing, was hectoring, insulting, belittling, sarcastic and rude and that conduct too would, in our opinion, lead the impartial observer to the relevant apprehension.”

For these reasons, the Full Court concluded that the trial judge’s conduct had ‘resulted in the father not receiving a fair trial and raised the identified apprehended bias, that no matter what the father’s case was as presented, it would be rejected.’ It therefore allowed the father’s appeal from the trial judge’s judgment and ordered that the matter be remitted to the Federal Circuit Court to be heard by a different judge.


The judgments in Jones v Fish and Adacot & Sowle illustrate the different ways in which a decision maker’s inappropriate conduct can cause a judicial or administrative decision to be tainted by jurisdictional error. In Jones v Fish, the panel member’s conduct gave rise to specific failures on the part of the medical panel to discharge its function according to law. By (according to the facts found by Kaye JA on the basis of the plaintiff’s uncontested evidence) behaving in a rude, hectoring and dismissive manner, the member created a perception of prejudgment on a specific factual issue, prevented the plaintiff from putting her case and deprived the medical panel of the opportunity to properly engage with issues that the relevant statutory scheme made mandatorily relevant to the exercise of its functions. It was these specific jurisdictional errors that required the medical panel’s opinion to be quashed.

By contrast, the trial judge’s behaviour in Adacot & Sowle had a diffuse effect that permeated the entire trial. His Honour’s conduct did not betray any prejudgment of a specific issue, nor did it suggest any particular association between the trial judge and the mother or prevent the father from making any specific submission. Nevertheless, the trial judge’s conduct gave rise to the inescapable conclusion that he had developed a generalised antipathy toward the father. While such a mindset can be described as ‘biased’, it is perhaps more accurate to adopt the words of Kourakis CJ in R v T, WA and describe it as one in which ‘the capacity to objectively and dispassionately evaluate the evidence has been compromised’ and ‘the judicial officer has lost the advantage of judicial detachment which he or she would otherwise have enjoyed as a judge adhering to the common law adversarial method of trial.’ Such a mindset is entirely inimical to proper judicial or administrative decision making and must almost inevitably result in jurisdictional error.

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