FEDERAL COURT OF AUSTRALIA

GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Limited [2013] FCAFC 150

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicant pay the respondents’ costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    On 27 September 2013 the primary judge, to whom this matter was docketed, dismissed an interlocutory application that he transfer the proceeding to the docket of another judge. The application was based on remarks his Honour made about the evidence of one of the expert witnesses which were alleged to give rise to an apprehension of bias. The remarks were made at a directions hearing and during argument on an application for an interlocutory injunction. The primary judge held that the allegation of apprehended bias was not made out and that, even if it had been, the aggrieved party had waived its right to object. The aggrieved party is GlaxoSmithKline Australia Pty Ltd (“GSK”), the respondent to the principal proceeding. On 11 October 2013 GSK filed an application for leave to appeal from the primary judge’s decision. The leave application was referred to a Full Court and on 28 October 2013 the Chief Justice ordered that the leave application and the appeal be heard concurrently.

2    Two days ago, at the conclusion of the hearing, we made orders dismissing the leave application with costs, indicating that we would publish our reasons within a day or two. These are our reasons.

Background

3    GSK makes a product known as Children’s Panadol 1-5 years which incorporates a liquid dispensing apparatus consisting of a bottle, a bottle neck liner and a syringe. The first respondent imports into and sells in Australia Nurofen for Children, which includes a similar dispensing apparatus. It is also the registered owner of an Australian Patent (No. 2003283537) entitled “improvements in and relating to liquid dispensing” (“the patent”). The invention is a liquid dispensing apparatus consisting of a bottle, a bottle neck liner and a “flat-nosed” syringe. The second respondent is the exclusive licensee of the patent. Together they allege that GSK has infringed the patent by incorporating the dispensing apparatus into its product. In their originating application they seek various orders aimed at protecting their intellectual property and compensating them for any loss of profits that the promotion and sale of GSK’s product may have caused them.

4    The description in claim 1 of the patent begins as follows:

A liquid dispensing apparatus comprising a bottle, a bottle neck liner and a flat-nosed syringe having a plunger and a barrel, the barrel terminating at its distal end in a generally flat face having a diameter corresponding to the diameter of the syringe barrel and being perpendicular to the longitudinal axis of the barrel.

5    On 28 May 2013 the primary judge granted the appellants (collectively “Reckitt”) an interlocutory injunction pending the final hearing. His Honour ordered that GSK be restrained from using the bottle neck liner in its current dosing system: Reckitt Benckiser Healthcare (UK) Ltd v GlaxoSmithKline Australia Pty Ltd [2013] FCA 583. The injunction had been sought in anticipation of a marketing campaign by GSK which was scheduled to begin within a week.

6    Soon after the order was made, GSK informed Reckitt that it intended to market its product with a new form of syringe to be inserted into a bottle with a bottle neck liner which had the same characteristics as the original version. This syringe, however, (referred to below as GSK’s “new” or “alternative” syringe) had a tip or nozzle that fitted into the bottle with the barrel of the syringe being wider than the tip.

7    Reckitt then applied for a second interlocutory injunction to restrain GSK from marketing Children’s Panadol 1–5 years with the alternative syringe. GSK resisted the application and maintains that the product incorporating the alternative syringe does not infringe Reckitt’s patent. Its position is that the diameter mentioned in claim 1 is a single constant or uniform diameter, not a barrel taking the shape of two cylinders of different diameters.

8    At the hearing of the application GSK relied on evidence from William Samuel Hunter, a mechanical design engineer. Mr Hunter swore an affidavit and was co-author of a joint report with Reckitt’s expert, Robert Bruce Tiller. GSK submitted that the alternative syringe did not infringe Reckitt’s patent because it was not a “flat-nosed syringe” within the meaning of the specification, that is to say, it was not:

a syringe whose barrel ends in a generally flat distal end which is perpendicular to the barrel axis, and in which the dispensing aperture is formed.

9    “Syringe” was defined in the specification as:

a syringe comprising a hollow syringe barrel in which is located, or arranged to be located, a reciprocating plunger, the syringe barrel having a dispensing aperture, through which a liquid may be drawn, then discharged.

10    Mr Hunter’s evidence was that “barrel” (of a syringe) was a term of art which would be well understood by the skilled addressee reading the patent and was conventionally understood as “a single cylindrical hollow body in which the plunger seal reciprocates to aspirate or dispense liquids”. He stated that he was unaware of any previous occasion where the term “barrel” (of a syringe) had been used to define a syringe with dual cylindrical barrel portions. Equally, he also stated that the terms “tip” and “nozzle” (of a syringe) are commonly used terms of art and “conventionally understood as a protrusion at the distal end of a syringe barrel”. Thus, in his opinion, the terms “barrel” and “tip” are commonly understood to refer to separate parts of a syringe and, in his experience, are “not conflated as a single term”. He supported his opinion by reference to the nomenclature used in the Australian Standard for the Design of Single-use Syringes (AS1094–1993), which distinguishes between the barrel and the nozzle. In Mr Hunter’s opinion, the distal end of the barrel of the alternative syringe does not terminate in a generally flat face but in “a radiused transition to a tip or nozzle”. He therefore concluded that the alternative syringe is not a flat-nosed syringe within the meaning of claim 1.

11    In contrast, Mr Tiller expressed the opinion that the distal end of the barrel is the distal end of that part of the apparatus Mr Hunter called the tip or nozzle. On this basis, Mr Tiller’s evidence was that the barrel terminated at its distal end in a generally flat face with a diameter corresponding to the diameter of the nozzle. Consequently, his opinion was that the alternative syringe is a flat nosed syringe within the meaning of claim 1.

12    For the purposes of the interlocutory hearing, the primary judge did not accept Mr Hunter’s evidence. In his reasons for judgment his Honour said that readers skilled in the art would understand the word “barrel” as used in the patent to be referring to a cylindrical object. He said that was clear from the definition of syringe in the patent. He also observed that the ordinary English meaning of “barrel” (which he derived from dictionary definitions) does not require the cylindrical shape to be uniform throughout. His Honour was satisfied that there was a sufficiently strong prima facie case for a second interlocutory injunction and, having (erroneously as it transpired) limited the evidence on the question of the balance of convenience to the evidence called in connection with the first interlocutory application, held that the balance of convenience also favoured Reckitt. Consequently, he granted the relief Reckitt sought. See GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Limited (No 2) [2013] FCA 736 (“reasons 2”).

13    His Honour’s judgment (delivered extemporaneously) was the subject of a successful appeal to the Full Court and the second interlocutory injunction was discharged: GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Limited [2013] FCAFC 102. Unlike the primary judge, the Full Court considered that Reckitt’s case was arguable but that it was not strong and that GSK’s was stronger. It is worth noting that the Full Court said (at [62]-[63]) that Reckitt’s position as to the construction of claim 1 involved importing into the claim “the words or understanding that the flat face of the syringe have ‘a diameter corresponding to the diameter of the syringe barrel at its distal end’” (original emphasis). The Full Court continued:

In our view, the strength of Reckitt’s case is diminished by the fact that the construction it advanced, as accepted by the primary judge, involved adding words to claim 1, which could be viewed as adding an impermissible gloss on the wording of the claim (Welch Perrin and Company Proprietary Limited v Worrel (1961) 106 CLR 588 at 610; Fresenius at [44]). It also necessitated acceptance of a construction that “a diameter corresponding to the diameter of the syringe barrel” meant a diameter that corresponded to the diameter of part of the syringe barrel, or the diameter of one of two syringe barrels or, alternatively, acceptance of a submission that despite the absence of all of the essential integers of the claim, GSK had taken the substance or the idea of the invention as claimed in claim 1. The latter submission is based on the wording of the last part of the claim, which founds Reckitt’s position that there is no functional difference between the apparatus of claim 1 and the Alternative Syringe.

14    It is unnecessary for present purposes to say anything more about the Full Court’s reasoning, save to observe that the Full Court expressed no view about Mr Hunter’s evidence although it was a ground of appeal that the primary judge erred by proceeding on the basis that the word “barrel” was not a term of art in the relevant field of the patent.

15    The Full Court ordered that the proceeding be listed before his Honour for directions as soon as practicable. On 9 August 2013 just before a scheduled directions hearing and ten days before the Full Court hearing, senior counsel for the parties attended upon the primary judge in chambers. Senior counsel for GSK, Mr Webb, informed his Honour that he had instructions to make an application that he recuse himself and provided his Honour with a schedule of transcript references upon which GSK intended to rely. His Honour suggested that the application might be unnecessary, GSK should abide the result of the Full Court decision and then let him know whether it intended to pursue the application.

16    The Full Court judgment was delivered on 2 September 2013. Shortly thereafter counsel attended upon the primary judge in chambers and informed him that GSK still intended to make the application it had foreshadowed, providing him with an outline of argument. Later, (through his associate) his Honour notified the parties that he had examined the material and could not see any reason for not continuing in the matter but noted that that did not preclude GSK from making any application it wished. He also observed that no application of the kind suggested was put to the Full Court.

The recusal application

17    On the hearing of the recusal application GSK submitted that the primary judge had made a number of remarks about Mr Hunter’s evidence which created an appearance of pre-judgment and that that appearance affected his ability to hear the trial. His Honour summarised GSK’s position (at [4] of his judgment):

It put that a hypothetical observer with a knowledge of the conduct of the hearings in respect of the alternative syringe, the subject of reasons 2 and the second interlocutory injunction, might apprehend that two matters had been prejudged that will arise the determination at the final hearing, namely, first, Mr Hunter’s evidence on the alternative syringe, and secondly, the proper construction of claim 1 of the patent.

18    GSK submitted first, that various passages in the transcript, when taken together with the lengthy debate at the hearing about Mr Hunter’s evidence, revealed that the fair-minded observer might reasonably apprehend that his Honour had prejudged both the weight and the credibility of that evidence. (In oral argument the point about prejudgment of the credibility of the evidence appears to have been abandoned.) Secondly, GSK argued that at a directions hearing on 14 June 2013 his Honour had reacted strongly against its construction of claim 1 and that during the argument at the hearing he had adhered to that view. It submitted that there was nothing in reasons 2 to qualify or detract from the strength of its argument. Thirdly, GSK submitted that the primary judge’s construction of claim 1 in reasons 2 was influenced by remarks his Honour had made in the course of argument that the alternative syringe was an attempt to avoid the effects of the existing interlocutory injunction.

19    His Honour rejected the third submission immediately, pointing to the observation of the Full Court that GSK told the Full Court that the alternative syringe was a “design around” the product the subject of the first injunction: Reckitt Benckiser Healthcare (UK) Ltd v GlaxoSmithKline Australia Pty Ltd (No 3) [2013] FCA 1043 at [9].

20    After setting out the relevant legal principles his Honour proceeded to consider the remaining arguments.

21    First, his Honour noted that in deciding to grant the second interlocutory injunction he had applied the principles in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [65]–[72] and emphasised that a judge who makes a determination of this kind does not express a concluded view. He pointed to a passage in his reasons ([15]) in which he had said that “for the purposes of ascertaining whether Reckitt has made out a sufficiently strong prima facie case in the sense [he had explained in his first judgment at [43]])”, the Australian Standard on which Mr Hunter relied was “of little weight”. Although he accepted that Mr Hunter’s evidence was “of some weight”, he said he was not persuaded that his opinion was “sufficiently strong to displace” Mr Tiller’s opinion that there was no assistance to be gained from the Standard.

22    Secondly, his Honour said (at [25]) that a fair-minded lay observer would understand that if, as a professional judge, he had to form a view at a final hearing about the proper construction of claim 1, he would be bound to take into account “the Full Court’s expression of its opinion and to the fuller and much more complete opportunity of the parties to develop arguments as to the proper construction of the claims in the patent”. He observed that “that would occur having regard to all of the evidence and issues, which would range far more broadly than the narrow confines of the claims and counterclaims on the arguments as to whether interlocutory relief should have been granted in respect of the alternative syringe”. His Honour noted (at [26]) that the Full Court did not consider Mr Hunter’s evidence as to the meaning of “barrel” in claim 1. He said (at [27]) that a fair-minded observer would not consider that he had predetermined, for the purpose of the trial, the outcome of the arguments as to whether Mr Hunter’s evidence assisted in the resolution of the dispute about the construction of the patent, or, more particularly, the construction of claim 1, by reference to how a skilled addressee would view it. He stated that he had not in fact predetermined those issues.

23    Thirdly, his Honour noted (at [28]) that it was necessary for GSK to “demonstrate a logical connection between the matter [said to give rise to the apprehension of bias] and the feared deviation from the course of deciding the case on its merits”. He expressed great difficulty understanding what the connection was in circumstances where GSK did not suggest that either the decision to grant the second injunction or the reasons for it were affected by an “apprehension of pre-judgment or predetermination”. He said (at [29]) that the difficulty had arisen in circumstances where he had no idea what evidence would ultimately be called, how the evidence would be tested, and what the final arguments would be. He said the case was still “at a protean stage”.

24    Fourthly, his Honour said there was no evidence that Mr Hunter would necessarily be called, although he acknowledged and accepted that counsel said he would be. He also noted (at [31]) that there was no evidence as to whether:

•    Mr Hunter’s evidence at trial would be confined to the evidence given on the interlocutory application or whether he would be cross-examined;

•    Mr Tiller would give further evidence; or

•    Other witnesses might give evidence on the meaning of the word “barrel”.

25    Fifthly, his Honour said (at [34]) that the remarks he made during the course of argument were intended to assist him in understanding and testing the parties’ arguments. He indicated that the Full Court’s conclusion that his assessment of the relative strengths and weaknesses of the two cases was wrong did not mean that he had determined to arrive at his decision before he had heard the full argument and absorbed it. He drew attention to the urgency of the proceedings and their commercial importance. He said (at [35]) that although he “may have expressed [his] questions propositionally and with some clarity”, his purpose was to test how he would construe claim 1 on a prima facie basis and how he should understand and weigh Mr Hunter’s evidence. He stressed that whatever happens at trial will be “an entirely new matter”.

26    For these reasons his Honour was not satisfied that anything he said or did might cause a fair-minded, informed lay observer to apprehend that he might not bring an unprejudiced and impartial mind to the determination of the proceeding at final hearing.

27    He added (at [37]) that even if he were wrong in the view he had reached, he would still dismiss GSK’s application because he was “comfortably satisfied” that it had waived its right to object to him continuing to hear the case. He noted that the Full Court had remitted the matter to him and said that GSK should have asked the Full Court to have the proceeding remitted to another judge. Even if GSK had not anticipated that it would do so, he said that it could have asked the Full Court to review the order.

The argument

28    GSK contends that the primary judge erred in several respects. It submits that if his Honour’s decision is wrong, then the final decision will be attended by apprehended bias because part of its claim turns on whether Mr Hunter’s evidence is accepted and the weight to be attached to it. The errors that are now pressed, contained in a draft notice of appeal, are alleged to be:

(a)    holding that apprehended bias does not arise by reason of the views his Honour expressed during argument (and the apparent strength of those views), together with his Honour’s reasons for granting the interlocutory injunction on 17 July 2013;

(b)    holding that GSK had waived its right to object by failing to apply to set aside the interlocutory injunction on the ground of apprehended bias or to ask the Full Court to remit the proceeding to a different judge in circumstances where:

(i)    the application for disqualification had been raised informally with his Honour in chambers after the application for leave to appeal from the interlocutory judgment had been filed but not yet heard;

(ii)    his Honour had asked GSK not to file the application but await the determination of the Full Court;

(iii)    it was neither open to nor necessary for GSK to seek to have the interlocutory judgment set aside on the ground of apprehended bias; and

(iv)    it was otherwise inappropriate to ask the Full Court to remit the proceeding to another judge as no formal application for disqualification had been put to the primary judge.

29    GSK contends that leave should also be granted because the appeal raises important issues concerning the operation of the Court’s docket system. Those issues are characterised as follows:

(a)    Whether a judge, to whose docket a proceeding has been allocated in the ordinary course and who hears and determines contested applications for interlocutory injunctive relief, should continue as the docket judge until and including the final hearing and disposition of the proceeding; and

(b)    Whether, having regard to the docket system, a party who appeals an interlocutory decision of a primary judge (on grounds other than apprehended bias) waives its right to object to the primary judge subsequently hearing and determining the proceeding on a final basis on the ground of apprehended bias.

The relevant principles

30    While there are no express constraints on the discretion to grant leave, in general leave to appeal will only be granted if the impugned decision is attended by sufficient doubt to warrant it being reconsidered on appeal and, on the supposition that the decision is wrong, substantial injustice will result if leave were refused: DÉcor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–400; Samsung Electronics Co Ltd v Apple Inc (2011) 286 ALR 257 at [26].

31    GSK emphasised the observation of the majority in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 (“Nicholls”) at [86] that “an application for leave to appeal against the rejection of an application that a judge not hear a matter due to apprehended bias may well be a case where the usual criteria would require leave to be granted”. But the observation assumes that there is some doubt about the judge’s decision. It may be accepted that substantial injustice would result if leave were refused and the decision below is wrong. The real question is whether there is sufficient doubt as to the correctness of the decision to justify a grant of leave.

Sufficient doubt to warrant the grant of leave?

32    The test for determining whether a judge is disqualified from hearing a case for apprehended bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”: Nicholls at [31]. There is no dispute that the primary judge applied the right test. GSK’s contention is that his Honour came to the wrong conclusion.

33    In our opinion his Honour’s conclusion that GSK had waived its right to object was indeed wrong. A party will likely be held to have waived its right to object where the party or its legal representative knows the circumstances that give rise to the disqualification but acquiesces in the proceedings by not taking objection: Nicholls at [76]. Here, GSK’s conduct did not amount to acquiescence. Had the matter been raised before the Full Court, as the primary judge suggested, it is inconceivable that it would have entertained the application. It is well established that it is for the judge assigned to hear the matter to decide whether he or she should withdraw for apprehended bias. The test formulated by the High Court assumes that, in the first instance, it will be applied by the judge concerned: Dr Melissa A Perry, Disqualification of Judges: Practice and Procedure, Discussion Paper (Australian Institute of Judicial Administration, 2001) at [2.39]. As the plurality observed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [74], “the ordinary, and the correct, practice” is for the judge to decide the matter for himself (or herself, as the case may be). In this case GSK approached the primary judge before the Full Court hearing to foreshadow its application. It only refrained from making it at the invitation of the judge. There is no room for the operation of the waiver doctrine in these circumstances.

34    But the primary judge’s decision to dismiss the application was not based on the judge’s conclusion about waiver. It was based on his conclusion that there was no reasonable apprehension of bias. On this question, there is no doubt that his Honour’s conclusion was correct. For this reason, the prospective appeal is doomed to fail.

35    A number of preliminary observations should be made.

36    First, whether or not the suggested apprehension is reasonable must be considered in the context of ordinary judicial practice. A judge is not expected to sit in silence, Sphinx-like, while arguments are presented and will often form tentative opinions on matters in issue. Counsel are ordinarily assisted by hearing those opinions: Johnson v Johnson (2000) 201 CLR 568 at [13], [53] and [80]. Indeed, the exposure of those opinions is calculated to encourage a response from counsel. It is invariably an exhortation for assistance, even when it is expressed in apparently emphatic terms.

37    Secondly, the fair-minded lay observer is assumed to know the actual circumstances of the case: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87.

38    Thirdly, the fair-minded lay observer will note the possibility of a change in the evidentiary position between earlier and later proceedings: see, for example, British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 at [145] (“Laurie”).

39    Fourthly, the fair-minded lay observer will also recognise that a professional judge is capable of departing from an earlier expressed opinion.

40    Fifthly, it is important to recognise that “disqualification flows from a reasonable apprehension that the judge might not decide the case impartially, rather than that he will decide the case adversely to a party”: Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 at [32]; see also Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352.

41    There is nothing in the transcript or the reasons for judgment to suggest that the primary judge rejected Mr Hunter’s evidence because he had formed an adverse view of his credibility. It is true that that is not the end of the inquiry. An apprehension of bias by reason of prejudgment might also arise where (absent necessity, special circumstances or consent) a judge sits to hear a case after (s)he has in a previous case “expressed clear views … about a question of fact which constitutes a live and significant issue” (Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 300).

42    In Livesey the judges hearing Mr Livesey’s application had in an earlier case made an adverse finding about the credibility of a key witness. In Laurie a majority of the High Court held that comments made in an interlocutory judgment disclosed apprehended bias. The trial judge had, in earlier proceedings, made an unqualified finding that that the defendant had engaged in dishonesty and fraud. Although the trial judge suggested that the evidence might change, the majority said (at [145]) that “a reasonable observer would note that the … finding of fraud was otherwise expressed without qualification or doubt, that it was based on actual persuasion of the correctness of that conclusion”. Moreover, the majority noted, the trial judge expressed himself in terms indicative of “extreme scepticism” about the defendant’s denials and strong doubts about the possibility that different material might change things. The majority described the circumstances in Laurie as “unusual” and held that a reasonable observer might apprehend that at trial the judge might not change his mind, even in the face of different materials.

43    But this case is far removed from Livesey and Laurie. It concerned an application for an interlocutory injunction. The primary judge was resolving a point of construction at a prima facie level and on limited evidence. The fair-minded lay observer would appreciate as much. The views in question were formed “at a time when the whole of the proceedings before him had not been completed and there is nothing to indicate that they represented concluded views whatever course the proceedings might thereafter take”: Re Morling; Ex parte Australian Meat Industry Employees Union (1985) 11 IR 299 (“Re Morling”) at 301. In Re Morling Dawson J dismissed an application by the union for a writ of prohibition for apprehended bias when Morling J had made comments about the reliability of a witness in reasons for granting a permanent injunction when he was yet to hear the employer’s damages case.

44    Neither the transcript nor the reasons supports the conclusion that a fair-minded lay observer might reasonably apprehend bias by reason of the prejudgment of the issues or the credibility of a witness. There is nothing to suggest that the primary judge might not be capable of considering afresh Mr Hunter’s evidence at trial. Nor is there reason to think that his Honour’s views about Mr Hunter’s opinion might not change with the benefit of time, mature reflection, further argument, additional evidence and a full consideration of all the evidence. Mr Hunter did not give oral evidence at the hearing of the interlocutory application. It is inevitable he will do so at the final hearing. So, too, Mr Tiller. Mr Tiller’s position might be discredited in cross-examination or undermined by other evidence. Moreover, his Honour’s views at a final hearing will also be informed by the judgment of the Full Bench on the appeal from the second interlocutory injunction.

45    The transcript in this case does reveal a debate between bench and bar about Mr Hunter’s position and the construction of claim 1. What it does not reveal is a judicial mind incapable of alteration. Nor does it give the appearance of prejudgment. Kirby and Crennan JJ observed in Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 283 (“Concrete”) at [112]:

Sometimes judicial intervention and observations can exceed what is proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case. However, one thing that is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias.

(Footnotes omitted.)

46    All the comments of the primary judge must be read in context. GSK seems to approach the primary judge’s remarks as expressing, at least in transcript, a final, immutable view. This is not correct. One example of this is in GSK’s written submissions at para 19(c)(iv). The primary judge did not just make reference to Mr Hunter’s view being “just nonsense” as GSK insinuated. The context was an admittedly forceful interrogation of counsel where the primary judge was referring to a submission based on the Australian Standard mentioned by Mr Hunter, and where he actually said, “just nonsense, isn’t it”, no doubt inviting an equally forceful response.

47    As in Concrete, the debate between bench and bar was robust and at times, the primary judge used emphatic language. But this would be readily understood by the fair-minded lay observer as part of the process of understanding and testing counsel’s arguments with a view to reaching the right decision on the application before him as quickly as possible. The primary judge made that clear at various times during the exchange, for example at T44:4-6 (“I just want to articulate it to you so you can see where my mental block is coming from if I’m getting it wrong”) and T93:17 (“I’m trying to tease out with you so I can understand – make sure I understand your case as best my frail mind can, and understand Ms Howard’s case and work out what the answer I’ve got to give about it is”).

48    The observation made by Lord Walker of Gestingthorpe for the Privy Council in Almeida v Opportunity Equity Partners Ltd [2006] UKPC 44 at [103] applies as much here as in Concrete where Gummow A-CJ referred to it at [4]:

[T]he judge’s interventions were motivated, not by partiality, but by the wish to understand the evidence.

49    It is also clear from his Honour’s reasons that his conclusions were reached at a prima facie level and not to the standard required for the purpose of a final determination.

50    This case does not raise any question of general principle about the operation of the docket system. In all courts, regardless of whether a docket system is in place, judges who hear interlocutory applications in which they come to “final” views as to issues of fact or credit may have to disqualify themselves. This will be the case whether the matter is in the judge’s docket or not. No special rules apply because a particular proceeding is in the docket of a judge.

51    There is no reason to doubt the correctness of the primary judge’s conclusion that nothing he said or did at the directions hearing on 14 June 2013 or during the argument at the second interlocutory hearing might cause a fair-minded lay observer to reasonably apprehend that his Honour might not bring an impartial mind to the resolution of the questions he will be required to decide at a final hearing.

Associate:

Dated:    4 December 2013