FEDERAL COURT OF AUSTRALIA

Christian v Société Des Produits Nestlé SA (No 1) [2015] FCAFC 152

THE COURT ORDERS THAT:

1.    The interlocutory application dated 23 September 2015 be dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

BENNETT J

1    On 2 March 2015, I sat as part of a Full Court in the case of James William Christian v Société de Produits Nestlé SA and others (NSD 940 of 2014), on an appeal from a decision of a Judge of the Federal Circuit Court. The decisions on the appeal and cross-appeal were reserved.

2    On 23 September 2015, Mr Christian filed an interlocutory application, seeking the following orders:

1.    The docket of Bennett J be transferred.

2.    Such further or other Order as the Court thinks fit.

3    Mr Christian’s proposed order 1 is not appropriate in these circumstances as I sat as part of a Full Court and am not the docket Judge. That is, the matter cannot be removed from my docket. However, having regard to Mr Christian’s supporting affidavit dated 23 September 2015 and submissions, I have interpreted Mr Christian’s interlocutory application as a request that I recuse myself (the recusal application) and these reasons apply to that application.

The recusal application of 21 september 2015

4    The asserted grounds for the orders sought in the recusal application are:

(a)    Bennet J has a conflict of interest due to her Honours marriage with a member of 5 Wentworth Chambers Mr David Bennett AC QC who is one of five senior counsel at the Chambers along with Mr Stephen Burley SC who is counsel for the respondents/cross-appellants, and due also to her Honours own association with the 5 Wentworth Chambers as a notable past alumni, all of which could lead to a lack of impartiality and prejudice in these proceedings;

(b)    Bennet J has a conflict of interest due to her Honours professional association of over two decades with Mr Luigi Palombi, an original founding member and colleague of Banki Haddock Fiora, the lawyers acting for the respondents/cross-appellants in these proceedings; &

(c)    Bennett J would not be swayed by evidence at hand, presented by the appellant/cross-respondent, during the 21 September 2015 interlocutory hearing.

(Errors in the original)

The Joinder ApplicationS

5    Applications made for the joinder of parties to the appeal/cross-appeal after the hearing of the appeal are relevant to the recusal application (ground (c)).

6    On 21 September 2015, I heard two interlocutory applications, one filed by Mr Christian dated 31 August 2015 (the Christian application) and one filed by the first to fourth respondents (together Nestlé) dated 18 September 2015 (the Nestlé application). Each application sought the joinder of certain parties to the appeal/cross-appeal, broadly speaking on the basis that, pursuant to r 9.09(2) of the Federal Court Rules 2011 (Cth), they were parties interested in, or affected by, the appeal and cross-appeal.

7    At the hearing, Mr Christian sought leave to amend the Christian application. He had originally sought to join Vitaco Holdings Limited. The amendment was to name Vitaco Health Australia Pty Ltd (Vitaco Health Australia) and Health Foods International Limited (Health Foods) as the parties to be joined as respondents/cross-appellants. I note in passing that there was no evidence that either of those parties consented to be joined.

8    On the Nestlé application, I made an order that the party to be joined was Vitaco Health IP Pty Ltd (Vitaco IP). Joinder was sought by Nestlé on the basis that Vitaco IP was the purchaser, pursuant to an intellectual property transfer agreement dated 14 September 2015, and the legal owner, pursuant to a trade mark assignment deed dated 21 September 2015, of Australia Registered Trade Mark Numbers 563325, 563326, 563327, 835451 and 1172510 (MUSASHI Registered Marks) the subject of the appeal/cross-appeal. Vitaco IP had not yet lodged an application with the Registrar of Trade Marks for recordal on the Register of Trade Marks but I was informed that lodgement would take place as soon as reasonably practicable.

9    It is helpful to set out the chronology of a number of transactions:

    Nestlé Australia Ltd was the authorised user of the MUSASHI Registered Marks in Australia until 1 October 2014. On 1 October 2014, Nestlé Australia Ltd transferred to Post Foods Australia Pty Limited (Post Foods) all of its rights, title and interest in all claims, causes of action and choses in action in connection with and all other rights exclusively related to the business development, manufacturing, marketing, distributing, and/or selling the MUSASHI range of products in Australia.

    The MUSASHI Registered Marks were assigned to Premier Nutrition Corporation (Premier) with effect from 20 October 2014.

    Justice Yates joined Premier and Post Foods as respondents/cross-appellants to the appeal (Order 2 of orders made by Yates J on 21 November 2014).

    On 26 June 2015, pursuant to a share and asset sale agreement, Health Foods as “the Trademark Purchaser” agreed to purchase the MUSASHI Registered Marks and Vitaco Health Australia as “the Share Purchaser” agreed to purchase the “Musashi Intellectual Property” from Post Holdings, Inc., which is the USA holding company of Post Foods, as “the Share Vendor” and Premier as “the IP Vendor”. The “Musashi Intellectual Property” was defined to exclude the MUSASHI Registered Marks. That is, Health Foods was the purchaser of the trade marks but Premier remained the registered owner.

    On 1 July 2015, Premier assigned all interests in the MUSASHI Registered Marks to Health Foods.

    On 24 August 2015, Vitaco Holdings Limited lodged a prospectus with ASX Limited (the prospectus). The offer period under the prospectus was from 4 September 2015 to 11 September 2015.

    On 14 September 2015, Health Foods agreed to sell the “Owned IPR” to Vitaco IP. The “Owned IPR” was defined to include all intellectual property rights owned by, relevantly, Health Foods. There was no exclusion of the MUSASHI Registered Marks.

    On 21 September 2015, Health Foods assigned to Vitaco IP the MUSASHI Registered Marks.

10    As for the Christian application, I granted leave to file the application on 21 September 2015, returnable instanter.

11    As at 21 September 2015, the date of hearing of the Christian application and the Nestlé application, Health Foods had no further interest in the MUSASHI Registered Marks. The registered owner of the MUSASHI Registered Marks remained Premier, the third respondent: the legal owner was Vitaco IP.

12    Thus, as at the date of hearing of the interlocutory applications, the evidence was that the registered owner of the MUSASHI Registered Marks remained Premier. The legal owner of the MUSASHI Registered Marks was Vitaco IP. The only party which sought to be joined as a respondent/cross-appellant was Vitaco IP. Health Foods had no interest in the MUSASHI Registered Marks.

13    Mr Christian’s evidence was based on the prospectus which, he asserted, states that Vitaco Health Australia and Health Foods acquired the MUSASHI Registered Marks. The prospectus states that Vitaco Health Australia and Health Foods acquired all intellectual property rights relating to the “Musashi” brand from Premier. Each of those parties are part of “the Vitaco Group”. This is supported by the evidence and by submissions from counsel for Nestlé and Vitaco IP, namely that each of the parties was part of the same group of companies. Mr Christian also relied on the share and asset sale agreement of 26 June 2015, which had been superseded by the intellectual property transfer agreement of 14 September 2015.

14    Mr Christian did not establish that Vitaco Health Australia had an interest in the MUSASHI Registered Marks. He relied on a page from the prospectus. The prospectus stated that on 26 June 2015, Vitaco Health Australia and Health Foods, defined jointly as “the Musashi Purchasers” entered into a share and asset sale agreement with Post Holdings, Inc. and Premier, defined jointly as “the Vendors”. The prospectus stated that ‘the Musashi Purchasers acquired all intellectual property rights relating to the “Musashi” brand from Premier’.

15    On a more detailed examination of the evidence provided by Nestlé, as set out in the chronology above, Vitaco Health Australia did not acquire an interest in the MUSASHI Registered Marks and there is no evidence that it has such an interest.

16    That is, Mr Christian did not establish that Vitaco Health Australia or Health Foods had any existing interest in the MUSASHI Registered Marks, or that those parties had an interest in, or were affected by, the appeal or cross-appeal.

17    I dismissed the Christian application and made no order as to costs.

18    The order for the joinder of Vitaco IP and the order dismissing the application for joinder of Vitaco Health Australia and Health Foods were made on the basis of the evidence as to the interests in the MUSASHI Registered Marks as at 21 September 2015.

Mr Christian’s Affidavit

19    Mr Christian filed an affidavit (dated 23 September 2015) in support of the recusal application, asserting the following matters (each supported by a screenshot of an internet search which supported the fact asserted):

    My husband and I are listed on the website of 5 Wentworth Chambers (the website) as “notable alumni” in the context of the statement ‘5 Wentworth has maintained the same traditions of collegiality and excellence when the chambers began almost 80 years ago’.

    My husband is listed on the website as one of five senior counsel, as is Mr Stephen Burley SC, counsel for Nestlé in the appeal and cross-appeal.

    I had previously recused myself in respect of a trade marks dispute in 2014 on the grounds of apprehended bias.

    Mr Luigi Palombi was an original founding partner of Banki Haddock Fiora, the solicitors for Nestlé and Vitaco IP. Mr Palombi had briefed me as one of the barristers in a case filed in the Federal Court in 1994, namely Murex Diagnostics Australia Pty Ltd v Chiron Corporation and others (NG 106 of 1994).

    Mr Palombi acknowledged thanks to me, among a number of other persons who had appeared or been concerned in Murex v Chiron, in a 2004 University of New South Wales thesis.

20    Further, Mr Christian asserted the following:

    The interlocutory hearing that occurred on 21 September 2015 was originally listed as an interlocutory hearing but then listed for directions.

    At the 21 September 2015 hearing, I first dealt with the Nestlé application. I gave leave to file that application and made the order to join Vitaco IP based upon the evidence filed by Nestlé.

    I then gave leave to Mr Christian to file the Christian application dated 31 August 2015. His affidavit in support annexed a copy of the prospectus which stated, inter alia, that Vitaco Health Australia acquired the entire issued capital of the fourth respondent (Post Foods) and that Vitaco Health Australia and Health Foods acquired all intellectual property rights relating to the MUSASHI Registered Marks from the third respondent (Premier).

    The evidence in an annexure to Ms Robb’s affidavit, affirmed 18 September 2015, in support of the Nestlé application, being the share and asset sale agreement, listed Vitaco Health Australia and Health Foods as the buyers from Post Foods and Premier.

    On 21 November 2014, Yates J had joined Premier and Post Foods as respondents/cross-appellants to the appeal on the basis of evidence that showed that Post Foods was the purchaser in an asset transfer agreement dated 1 October 2014 and that the MUSASHI Registered Marks were assigned to Premier with effect from 20 October 2015.

    I dismissed the Christian application and ‘would not be swayed by evidence at hand’ to join Vitaco Health Australia and Health Foods and did join Vitaco IP.

    I ‘would not be swayed by evidence at hand or by the precedent set by Yates J regarding the benchmark procedural formality for joining of entity’s [sic] to proceedings based on evidence qualified by formal registered documents which list a buyer and any assignee of IP’.

    At the hearing of the appeal on 2 March 2015, the Full Court dismissed Mr Christian’s interlocutory application dated 20 February 2015, to amend his notice of appeal to add further grounds and an application for an adjournment to obtain legal representation, with reasons to be given.

    Even though this application was dealt with by the Full Court, the Registry sent a notification on 6 August 2015 that the interlocutory application was rejected.

    Since 2 March 2015, “Nestlé” has “had time” to resell the MUSASHI Registered Marks and assets to “the Vitaco Group”, which he characterises as Vitaco Health Australia and Health Foods, in the share and asset sale agreement of 26 June 2015, launch the Vitaco Holdings Limited Initial Public Offering (IPO) and see the IPO period conclude on 11 September 2015 and ‘[d]isplay ethically questionable behaviour through negligently not being first to move to have Vitaco Health Australia Pty Limited and Health Foods International Limited joined as parties to these proceedings’.

21    After Mr Christian filed the recusal application, the following occurred:

    The matter was listed for hearing on 2 October 2015.

    On 30 September 2015, Nestlé and Vitaco IP asked the Court whether they could provide written submissions rather than appear on 2 October 2015. Nestlé and Vitaco IP were excused from appearing on that basis and provided written submissions on 30 September 2015.

    On 1 October 2015, Mr Christian, by email, noted that the Melbourne Registry would be closed on 2 October 2015, as it was the Friday before the AFL Grand Final which is a public holiday. Mr Christian advised the Court that he intended to appear on 2 October 2015 and provide oral submissions. However, he sought an adjournment to allow him to file written submissions. I granted an adjournment and re-listed the interlocutory hearing for 12 October 2015.

    On 6 October 2015, Mr Christian filed written submissions.

    At the same time, Mr Christian requested to appear at the interlocutory hearing via videoconference and asked the Court to waive the fees. In support of his request, Mr Christian relied on his affidavit filed on 29 September 2014.

    On 7 October 2015, the Court refused Mr Christian’s request to waive the fees but informed him that he could appear by telephone to put any further submissions to the Court. Mr Christian had filed written submissions and Nestlé and Vitaco IP were not appearing.

    On 8 October 2015, Mr Christian informed the Court that his mobile phone was ‘old & problematic’ and that he has no access to a landline. Accordingly, he maintained his request to appear via videoconference and that the Court waive the fees. Again, the Court refused to waive the videoconference fees. However, it offered to provide Mr Christian with a landline at the Melbourne Registry. Further, the Court granted leave to Mr Christian to file any further evidence or material, or any further submissions in support of his interlocutory application by 2.00 pm on 9 October 2015.

    On 12 October 2015, Mr Christian asked to be excused from attending the interlocutory hearing and stated that he relies on his supporting affidavit dated 23 September 2015 and written submissions dated 6 October 2015.

    Mr Christian was excused from attending the hearing. The parties were notified that the interlocutory application would be dealt with on the papers.

Mr Christian’s Written submissions

Actual bias

22    Mr Christian accepts the distinction, drawn by Mr Dyson Heydon AC QC in his reasons for ruling on disqualification in “Reasons for rulings on disqualification applications” dated 31 August 2015 and by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531-2 ([71]-[72]), between prejudgment, incapable of being altered by evidence or argument and predisposition, capable of being swayed by evidence or argument. He accepts that he must demonstrate that, in fact, an unbiased mind was not brought to the issues but that a closed mind was brought to the issues and was not open to persuasion (Wannakuwattewa v Minister for Immigration and Ethnic Affairs [1996] FCA 697 per North J).

23    The evidence to which Mr Christian points in his submissions is, as follows:

Example One – 20 February 2015 interlocutory application

The appellant eLodged the 20 February 2015 interlocutory application, seeking leave to amend the notice of appeal by adding further grounds and also seeking an adjournment while legal representation was obtained. The 20 February 2015 application remained unprocessed on the CCP until 6 August 2015 when the Registry sent email notification to the appellant advising that the 20 February 2015 interlocutory application was rejected. The Registry advised that Bennett J chambers instructed the Registry not to process the application and then to later reject the application which is the first example showing that her Honour “had a closed mind to the issues raised and was not open to persuasion by the applicants case” and would not be swayed by evidence at hand, presented in the application by the appellant.

Example Two – 2 March 2015 Full Court hearing

At the 2 March 2015 Full Court hearing the appellant made the point to the Full Court that the eLodged 20 February 2015 interlocutory application, seeking leave to amend the notice of appeal by adding further grounds and also seeking an adjournment while legal representation was obtained, still remained unprocessed and subsequently requested that the application be dealt with by the Full Court. Bennett J agreed to hear the application orally and then adjourned the hearing for 10 minutes to then advise the appellant that the application was dismissed with reasons to be given with the substantive judgment which now more than 7 months later is yet to be delivered. This is the second example showing that her Honour “had a closed mind to the issues raised and was not open to persuasion by the applicants case” and would not be swayed by evidence at hand, presented in the application by the appellant.

Example Three – 21 September 2015 interlocutory hearing

At the 21 September 2015 hearing which was listed to hear the appellants 31 August 2015 interlocutory application Bennett J decided to instead first hear the respondents unfiled 18 September 2015 interlocutory application. Orders sought by the respondents were granted to join a party based on unregistered documents as evidence which was created internally by the respondents 2 hours prior to the hearing.

The appellants 31 August 2015 interlocutory application was seeking Vitaco Health Australia Pty Ltd and Health Foods International Ltd to be joined to these proceedings as the fifth and sixth respondents respectively based on evidence before the Court from page 131 from the Vitaco Holdings Limited IPO prospectus stating that:

(a)    “On 26 June 2015, Vitaco Australia and Health Foods (together, the Musashi SPA) with Post Holdings and Premier Nutrition (together, the Vendors);

(b)    Pursuant to the terms of the Musashi SPA, on 1 July 2015;

(c)    Vitaco Australia acquired the entire issued capital of Post Australia from Post Holdings; and

(d)    The Musashi Purchasers acquired all intellectual property rights relating to the “Musashi” brand from Premier Nutrition.”

This is the third example showing that her Honour “had a closed mind to the issues raised and was not open to persuasion by the applicants case” and would not be swayed by evidence at hand at the 21 September 2015 hearing to grant orders seeking Vitaco Health Australia Pty Ltd and Health Foods International Ltd be joined to these proceedings as the fifth and sixth respondents respectively; and

At the 21 September 2015 hearing Bennett J would not be swayed by evidence at hand showing that there was a precedent set in these proceedings previously by Yates J regarding the benchmark procedural formality for joining of entity’s to proceedings based on evidence qualified by formal registered documents which list a buyer and any assignee of IP. At the 21 November 2014 hearing Yates J made Court order 2 for Premier Nutrition Corporation and Post Foods Australia to be joined as respondents & cross-appellants to the appeal based on evidence before the Court as follows:

(a)    Asset Transfer Agreement dated 1 October 2014 showing Post Foods Australia was recorded as the buyer; &

(b)    A letter from IP Australia dated 24 October 2014 confirming the Australian Musashi Registered Marks were assigned to Premier Nutrition Corporation with effect from 20 October 2015.

(Errors in the original)

Apprehended bias

24    Mr Christian cited the three steps set out by Gageler J in Isbester v Knox City Council (2015) 320 ALR 432. His Honour (agreeing with the majority of the High Court), at [59], isolated the three steps of the test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, as follows:

Step one is identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as the result of a neutral evaluation of the merits. Step two is articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits. Step three is consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way.

25    Mr Christian submitted that an ‘objective observer knowing the factual merits of the 23 September 2015 (sic) interlocutory application might reasonably apprehend that Bennett J might not decide the case impartially or without prejudice’ on the following bases, some of which are factual assertions as to which there is no evidentiary support. As set out in the submissions:

Step one – identification of the factors which might cause deviation

(a)    Bennett J advocates 5 Wentworth promoting her Honour as a prestigious “Notable Alumni” on the 5 Wentworth website along with her Honour’s spouse, Mr David Bennett, who is also currently one of five special counsel at 5 Wentworth;

(b)    the 5 Wentworth website promotes the affinity among Chambers alumni and the current 5 senior counsel and 22 junior counsel as “close-knit”, with ethos of unity in a common purpose and respect of each other’s abilities to work toward that purpose a common purpose, and states “5 Wentworth has maintained the same traditions of collegiality and excellence when the chambers began almost 80 years ago”;

(c)    the fair-minded observer would naturally infer the collegiality shared at 5 Wentworth is reserved for a small, prestigious and elite group of alumni and current counsel who have a strong affinity, support and active involvement with maintaining the ethos and traditions of 5 Wentworth as advocated by her Honour consenting to promotion as a “Notable Alumni” of 5 Wentworth;

(d)    the fair-minded observer would infer Bennett J is an elite member of 5 Wentworth and that her Honour has a strong affinity and natural partiality towards 5 Wentworth;

Step two – articulation of how the identified factor might cause deviation

(e)    the fair-minder observer would infer that due to the affinity and strong connection with 5 Wentworth, Bennett J might not impartially determine matters in these proceedings and have a partiality for the respondents special counsel, Mr Stephen Burley, due also to his connection to 5 Wentworth as one of five senior counsel alongside her Honour’s spouse, Mr David Bennett;

(f)    the fair-minder observer would infer that due also to the 20+ year connection of Bennett J with Mr Luigi Palombi, an original founding partner and colleague of Banki Haddock Fiora, lawyers acting for the respondents, her Honour might feel an affinity to the respondents lawyers, Banki Haddock Fiora and therefore not be impartial with regards to determining matters in these proceedings; and

Step three – consideration of the reasonableness of the apprehension of deviation

(g)    in consideration of a fair-minded lay observer having knowledge of all of the relevant circumstances and factual merits of the evidence presented by the appellant in the 23 September 2015 interlocutory application and this submission there might be a reasonableness of apprehension by the objective observer that Bennett J might not bring an impartial mind to the resolution of the question Bennett J is required to decide due to the various conflicts of interest set out by the appellant in the interlocutory application and this submission.

CONSIDERATION

26    None of the matters raised by Mr Christian in his affidavit or in his submissions could possibly found an allegation of bias, whether actual or apprehended. None of the matters could possibly give rise to apprehended bias within the principles laid down in Ebner. The relevant test in Ebner is set out at 344 and 345 (per Gleeson CJ, McHugh, Gummow and Hayne JJ):

… a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide...

… First, it requires the identification of what it is said might lead a judge… to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding a case on its merits. The bare assertion that a judge… has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

27    The fair-minded lay observer for this test is taken to be reasonable (Johnson v Johnson (2000) 201 CLR 488 at 509), not unduly sensitive or suspicious (Johnson at 509) and with knowledge of the circumstances of the case (Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294). Further, he or she will have regard to the fact that a judge is ‘a professional… whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial’ (Johnson at 493).

Actual bias

28    Mr Christian gave “examples” to support his allegations of actual bias. There is some confusion in the examples pointed to by Mr Christian, in that he does not distinguish between matters on which I sat as part of a Full Court and the interlocutory application for joinder on which I sat alone.

29    As to example one, the interlocutory application eLodged on 20 February 2015 was lodged in the appeal to be heard by the Full Court on 31 March 2015. Despite what Mr Christian asserts, at the hearing of the appeal he made a number of interlocutory applications, including an application for leave to amend the notice of appeal. That application was heard and leave refused with reasons to be given in the reasons for judgment in the appeal.

30    As to example two, this relates in part to the same matter as example one and acknowledges that the Full Court heard the application. Mr Christian’s complaint seems to be that his application and a further application for an adjournment were not acceded to, and that reasons in the appeal were reserved for some time.

31    In neither case is there any basis for actual bias, let alone by one Judge of a Full Court.

32    As to example three, both interlocutory applications for joinder were heard on 21 September 2015. The applications were to join the party/parties with the relevant interest in the MUSASHI Registered Marks being asserted against Mr Christian. It was well within the Court’s discretion to hear first the application brought by the parties which had had that interest in the past and had the present interest. Mr Christian’s complaint is that his contentions, based on the prospectus as to the identity of the owners of the MUSASHI Registered Marks were not accepted in preference to, and in contradiction to, the affidavit evidence from the respondents’ solicitor. That evidence was supported by the documents that assigned the relevant rights. The fact that another Judge of the Court had made orders for joinder of other of the respondents at a different time and on different evidence is irrelevant.

33    Example three cannot form a basis for actual bias. It is, rather, an assertion of bias by reason of the Court not acceding to the Christian application for joinder of parties to the appeal/cross-appeal.

Apprehended bias

34    It is necessary that a reasonable apprehension of bias be firmly established (Re JRL, Ex parte CJL (1986) 151 CLR 342).

35    There is no evidence to support Mr Christian’s assertions that I ‘advocate’ the matters referred to in connection with my former Chambers, or that I am active in the affairs of my former Chambers in the way asserted, or that I am ‘an elite member’ of Chambers, or that any of these assertions have any relevance.

36    The tenuous connection drawn between myself and ‘the respondents [sic] special counsel [sic]’ cannot possibly ‘cause deviation’ or properly found apprehended bias. In Bienstein v Bienstein (2003) 195 ALR 225, McHugh, Kirby and Callinan JJ held that ‘it is absurd to suggest that a reasonable apprehension of bias can exist merely… because the judge may have had professional dealings with that person in the course of professional practice’ (at [33]). Mr Christian’s submission shows no understanding of the way in which the Bar works or the relationship between Bench and Bar. No reasonable person would draw the conclusions asserted by Mr Christian. Further, the fact that a judicial officer’s husband has a connection with the same chambers as a party’s counsel is not a basis for disqualification (Attorney-General (NT) v Director of Public Prosecutions (2013) 166 NTR 1; Brooks v The Upjohn Company (1998) 85 FCR 469).

37    As to the asserted ‘connection’ between myself and a founding partner (but no longer a partner) of the firm of solicitors representing Nestlé and Vitaco IP and the asserted resulting questioning of impartiality, it can well be described as nonsense. Even if the connection were relevant, there is no evidence either of a continuing or present “connection” between myself and that person, or of any present or continuing “connection” of that person with the firm of solicitors.

38    None of the evidence, nor the matters raised by Mr Christian, establish a reasonable apprehension of bias. It follows that these matters could not result in the asserted apprehension of bias by any fair-minded lay observer having knowledge of all of the relevant facts and circumstances.

Other matters referred to in the application and affidavit

39    The case referred to by Mr Christian from which I recused myself in 2014 was a case brought by the New South Wales Bar Association (Bar Association) as applicant against a barrister. At the time, my husband was a member of The Bar Council, the decision making entity for the Bar Association. When that was brought to my attention by the Bar Association at the first directions hearing, I deemed it appropriate, for that reason, not to hear the matter.

40    I do not comment on the allegations made against the respondents/cross-appellants as they are not relevant to this application. That does not mean that I accept that they have been established in any way.

Conclusion

41    Spurious innuendo based upon evidence obtained by trawling through the Internet to trace indirect and remote links between a judge and a practitioner cannot provide a basis for actual or apprehended bias.

42    Accordingly, Mr Christian’s interlocutory application dated 23 September 2015 should be dismissed. The matter was determined on the papers. While Nestlé and Vitaco IP assisted the Court with written submissions, it is appropriate that there be no order as to costs of the revised application.

Associate:

Dated:    4 November 2015