Maules Creek Coal Pty Ltd v Environment Protection Authority

1. [1]

   THE COURT: The applicant in this matter, Maules Creek Coal Pty Ltd, operates a coal mine near Maules Creek in the vicinity of Boggabri. It is currently being prosecuted by the respondent, the Environment Protection Authority (EPA), in proceedings in Class 5 of the Land and Environment Court’s jurisdiction before Pritchard J. It is charged with four offences under the Protection of the Environment Operations Act 1997 (NSW) (POEO Act). Three of the charges allege contravention of conditions of an environment protection licence, contrary to s 64(1) of the POEO Act. Those counts each involve an allegation that the applicant did not carry out licenced activities “in a competent manner” in various respects in August 2020. The fourth charge alleges contravention of s 140(1) of the POEO Act by dealing with materials (explosives) in such a manner as to cause noise, caused by its failure to “deal with those materials in a proper and efficient manner”, occurring in August 2020.

2. [2]

   The trial commenced on Monday 30 January 2023, running through until Friday 10 February 2023. The proceedings were then adjourned part-heard. The trial was listed to continue in the period 18-21 September 2023 (which occurred), and has a further four days of hearing listed for 13-16 November 2023.

3. [3]

   On 11 September 2023, in circumstances outlined below, the applicant emailed the associate of the trial judge foreshadowing that an application would be made on the resumption of the trial on 18 September 2023 that her Honour disqualify herself for apprehended bias. In order to minimise disruption and delay, her Honour listed that application for hearing on Thursday 14 September 2023. She delivered written reasons the next day for rejecting the application, and made an order accordingly. In the form entered in JusticeLink, the order was:

4. [4]

   The applicant seeks leave to appeal against that order pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW). Three main issues arise:

   1. (1)

      Is the order made by the trial judge an “interlocutory order or judgment” for the purposes of that section such that this Court has jurisdiction to grant leave to appeal?

   2. (2)

      If so, should this Court grant leave to appeal?

   3. (3)

      If so, did the trial judge err in declining to disqualify herself?

5. [5]

   As to the first issue, there is a line of authority of this Court holding that the refusal of a disqualification application is not an “interlocutory judgment or order” within the meaning of s 5F(3)(a), which the EPA invokes as an answer to the application. The applicant submits that in light of recent High Court and Court of Appeal decisions that line of authority should no longer be followed. A bench of five judges was constituted to hear the application in light of that argument. The applicant’s submission should be accepted. The order made by the trial judge in this matter was an “interlocutory order or judgment” within s 5F(3)(a) of the Criminal Appeal Act. The line of authority invoked by the respondent should no longer be followed.

6. [6]

   As to the second issue, although there are significant reasons for restraint when it comes to granting leave to appeal from interlocutory decisions in criminal matters, in the unusual circumstances of this case it is appropriate that leave be granted.

7. [7]

   As to the third issue, the trial judge was correct to conclude that she should not disqualify herself.

8. [8]

   Leave to appeal should thus be granted but the appeal dismissed. The issues will be addressed in turn below. Before doing so, it is necessary to set out the context in which they arise.

Relevant facts

1. [9]

   On Monday 14 August 2023 the associate of the trial judge received an email from Ms Anna Christie, who described herself as “PhD candidate, Western Sydney University”, seeking permission to follow the hearing of the prosecution by audio-visual link when it resumed in mid-September. Amongst other things, the email said that “[a]s previously disclosed to Her Honour, I am undertaking a law and science PhD and following these matters closely as potential case studies”.

2. [10]

   On Friday 18 August 2023, the associate sent a reply email to Ms Christie, copied to the solicitors for the parties, advising her that an AVL link would be published on the Court’s daily hearing list. That reply email meant that the parties could see the content of Ms Christie’s email request to the associate. The reference to something having been previously disclosed to her Honour by Ms Christie caused the applicant some concern.

3. [11]

   On Thursday 31 August 2023 the applicant’s solicitor emailed the associate asking that the matter be relisted at the earliest available opportunity in light of the email exchange. The matter was relisted for mention on Friday 8 September. On that occasion senior counsel for the applicant said the following (emphasis in the original):

4. [12]

   Her Honour then indicated in response that Ms Christie had been invited into her chambers on 3 February 2023, during the course of the first tranche of the hearing, and gave an explanation of the circumstances in which that occurred (as summarised below). The applicant indicated it would consider its position.

5. [13]

   It is apparent from the above that the applicant understood that Ms Christie might have attended her Honour’s chambers on 3 February 2023 before her Honour had disclosed that fact, presumably based on an observation of someone connected to the applicant. The source of the information is unstated. Her Honour noted the point at [71]-[72] of her judgment but did not treat the delay in raising the issue as a waiver. Nor has the EPA sought to make anything of the point.

6. [14]

   On the next business day, Monday 11 September 2023, the applicant’s solicitor emailed the associate at 2:08pm foreshadowing that an application would be made by the applicant that “her Honour recuse herself from hearing these proceedings given the circumstances canvassed in Court before her Honour on 8 September 2023”.

7. [15]

   At 3:00pm that day the associate sent a reasonably lengthy email to the parties setting out further matters relating to her Honour’s encounter with Ms Christie.

8. [16]

   The application came on for hearing on Thursday 14 September 2023, at the commencement of which her Honour gave a further brief explanation of the relevant circumstances. At that hearing the applicant read two affidavits, and tendered the two emails sent on 11 September 2023, along with the transcript of the hearing on 8 September 2023. In due course, at the EPA’s request, her Honour also accepted that the transcript of the hearing on 14 September would be received as an exhibit.

9. [17]

   The applicant’s evidence indicates that Ms Christie has described herself on LinkedIn as a “Senior Investigator” for the “Leard Forest Research Node” since February 2015. That body is then described as follows:

10. [18]

    In a YouTube seminar for the “Australian Citizen Science Association” Ms Christie said that the Node “is conducting citizen science in the wake of what essentially was a direct action blockade to stop these large mines from proceeding in the Leard Forest”. An ABC News online report posted on 5 February 2015 refers to “[c]ommunity members from Maules Creek hav[ing] come together to launch a new website to monitor the activity of the three coal mines operating in the area surrounding the Leard forest”. It says that the “Wilderness Society's Anna Christie helped set up the site”. It quotes Ms Christie as saying “[o]ur role is to support the EPA and to assist them in investigating these matters”.

11. [19]

    Ms Christie sent a submission to the Secretary of the Department of Planning opposing a proposed mining project on 25 October 2018, in which she said “I am an Environmental Representative on two coal mine Community Consultative Committees, Maules Creek and Boggabri Coal, and have an extremely close awareness of the social and environmental issues raised by the proposed Vickery Project”. She also said that “I have actually been shaken out of bed by a blast in Maules Creek [on] one occasion and have friends in Upper Maules Creek who complain about noise dust and vibrations at distances 20km and over”.

12. [20]

    In sum, the evidence establishes that Ms Christie: has been involved in research on the activities of that mine; has been on a community consultative committee for that mine; has been an active public opponent of that and other mining activities; and sees herself as being involved in organisations acting to assist the EPA with investigations relating to such mining activities, presumably by providing evidence to the EPA. In short, Ms Christie is an active public critic of the mining and related activities of the applicant, including the sorts of activities at issue in the prosecution.

13. [21]

    One of the affidavits is by a solicitor, Ms Stella Zhao, who is part of the team representing the applicant in the prosecution. She attended each day of the hearing in the two week period beginning 30 January 2023. She said that “members of the public were present in the gallery of the court room” each day; she does not say how many. One of the people she says she noticed was “a woman who had a bag with a strap on it which appeared to me to be quite unique”, who came to be identified to her as Ms Christie.

14. [22]

    Ms Zhao notes that an affidavit of Ms Roselyn Druce was read in the proceedings on Monday 6 February 2023. The affidavit is short. Ms Druce lives some 7 km from the mine and gave evidence of feeling an earthquake-like explosion on 20 August 2020. The applicant has indicated that this explosion is central to the prosecution. Ms Druce said she notified the EPA of the explosion and its effects, and then emailed various other people about this, including Ms Christie. Ms Christie was one of eight recipients of that email. The applicant submitted below and to this Court that Ms Christie was “copied into the original complaint made to the EPA” about that mine blast. That is not correct, as the applicant ended up conceding in this Court; Ms Druce’s email copied to Ms Christie was subsequent and separate to her complaint to the EPA.

15. [23]

    Ms Christie was also referred to in the evidence given orally by Ms Druce. The references were in passing, simply noting that the email just referred to had been sent to Ms Christie amongst others.

16. [24]

    The facts that gave rise to the disqualification application are set out by the trial judge at [12]-[17] of her Honour’s judgment. Her Honour summarised the relevant circumstances at [75] as follows:

17. [25]

    Her Honour had earlier noted at [17] – quoting what she said at the mention on 8 September – that the “registry regularly notifies court when students from the universities with which the Court has a relationship are in court, and it's not uncommon at all for the judges of the Court to invite that student into chambers”, doing so for “a cup of tea and a discussion about matters not pertaining to a particular case”. One other relevant fact to note is that, as is implicit in the above summary, judges of the Land and Environment Court do not have a separate judge’s lift in the building in which the Court is housed. They must use the public lifts, thus exposing them to some potential contact with persons involved in or attending proceedings.

18. [26]

    The applicant does not challenge the trial judge’s account of how the events unfolded. It does complain, however, that her Honour has not adequately disclosed matters in one respect. It suggests that Ms Christie had said something adverse to the applicant’s case to prompt her Honour to realise that Ms Christie was not one of the expected university students. That suggestion is based on the fact that at the start of the mention on 8 September senior counsel for the applicant described Ms Christie in the manner set out above at [11], shortly after which her Honour said this:

19. [27]

    The applicant suggests that for her Honour to accept that Ms Christie “was in fact the person who you describe her as” indicated that she had realised Ms Christie was an activist with a connection to the prosecution. It also submits that “very fact that something caused the Trial Judge to quickly terminate the meeting itself gives rise to a rational inference that something was said or done which the Trial Judge viewed as improper or inappropriate”.

20. [28]

    The applicant gives examples of what it speculates might have been said by Ms Christie:

21. [29]

    The argument based upon its own description of Ms Christie in submissions reads too much into her Honour’s response, which did not adopt by reference the characterisation put by senior counsel (“I wouldn’t use the same terms”). That being said, the applicant makes the valid point that it “may be expected that a student carries out research into various matters”, thus simply being told that Ms Christie was carrying out research would not seem to exclude her from the class of expected university students. It is possible that Ms Christie’s indication she was “undertaking PhD studies in relation to case studies in the Court” excluded her from the expected class, but this is not clear. At [83] her Honour said that “my interaction with Ms Christie was on the basis of mistaken identity, and did not involve any secret or private representations, or communication to me of any views or opinions concerning the case” (emphasis added). And her Honour emphasised in her judgment that there was no discussion of “the substance of the case”. The applicant does not suggest that these statements should not be accepted.

22. [30]

    In our view it would have been preferable if her Honour had been clearer on precisely what was said that led her to realise she had been mistaken about Ms Christie’s identity. The applicant did not actively seek further clarification of this point either on 8 or 14 September 2023. That being said, in oral submissions on 14 September senior counsel for the applicant indicated that they did not know what was said by Ms Christie but “[w]hatever it was must have been something relating to her interest or the case sufficient to prompt your Honour to know that the meeting should be terminated”. Her Honour did not then seek to be more precise as to what had been said. It is entirely possible her Honour did not have a clear recollection of what it was, especially as it is apparent she did not consider the interaction of much moment (hence the fact she did not disclose it shortly after it occurred, as discussed below). The applicant itself notes “the possibility of an imprecise recollection on the part of the trial judge as to the details of what had taken place on 3 February 2023, explicable by reason of the effluxion of time”.

23. [31]

    Although not clear, it seems possible that what was said about the research into “various matters” and the “case studies in the Court” led her Honour to realise that Ms Christie had some personal interest in, or connection to, the case. That would be consistent with her Honour’s quick termination of the conversation. It is also supported by Ms Christie’s later email requesting the AVL link, in which she said that “[a]s previously disclosed to Her Honour, I am… following these matters closely as potential case studies”.

24. [32]

    We will proceed on the basis that Ms Christie did say something in chambers which communicated to her Honour that Ms Christie had a particular interest in the prosecution, going beyond a general educational interest. That understanding is not inconsistent with her Honour’s unchallenged statement that there was no discussion of the substance of the case, nor her statement that no views or opinions concerning the case were communicated.

25. [33]

    There is no basis to infer that what Ms Christie said which may have manifested a particular interest in the prosecution also manifested antipathy towards the applicant or its activities. However, it is possible that Ms Christie said she was researching environmental effects of the applicant’s mine. It is also possible that she communicated, expressly or impliedly, a negative view of the applicant’s mining activities at Maules Creek generally, without being linked to the issues of the case in particular (ie the “substance of the case”). The apprehended bias test is concerned with possibilities. As this is a reasonably open possibility, and given the lack of clarity on the facts, in the analysis that follows below we will further assume in favour of the applicant’s argument that Ms Christie did communicate, expressly or impliedly, a negative view of the applicant’s mining activities at Maules Creek generally.

26. [34]

    The trial judge did not disclose to the parties around the time of the meeting with Ms Christie that the meeting had occurred. That disclosure only came about because of the applicant’s query in light of the terms of Ms Christie’s email seeking an AVL link in August. At the mention on 8 September senior counsel for the applicant respectfully asked her Honour why she had not disclosed the matter at an earlier time. As the trial judge noted at [80] of her judgment, she responded:

27. [35]

    The following further points may be made about this non-disclosure:

    1. (1)

       Ms Christie attended court on every day of the initial two week hearing. It appears that other members of the public were also in attendance. Ms Zhao noticed and remembered her because of a distinctive bag she was carrying. There is nothing to suggest that Ms Christie would have come to the attention of the trial judge for any particular reason, although it may be inferred that her Honour would have observed that Ms Christie continued to attend the trial every day after the 3 February encounter.

    2. (2)

       Neither the trial judge nor her tipstaff could remember the name of Ms Christie, even immediately after she had left chambers on Friday 3 February 2023. The trial judge therefore had no reason to connect that person to the passing mention of a Ms Christie in the written and oral evidence on Monday 6 February 2023. Thus her Honour said at [40] that the applicant “accepted that when on the following trial day, Ms Christie was mentioned in the evidence, I did ‘not twig’ or ‘make the connection’ when Ms Christie’s name was mentioned”.

    3. (3)

       Her Honour records in the judgment at [54] that the prosecutor submitted that Ms Christie has not been called as a witness in the proceedings, and there has been no suggestion that the prosecutor has an obligation to call Ms Christie as a material witness. The applicant has not suggested otherwise.

Was the order an “interlocutory judgment or order”?

1. [36]

   Section 5F of the Criminal Appeal Act is entitled “Appeal against interlocutory judgment or order”. Pursuant to s 5F(1), the section applies, amongst other things, to the proceedings for the prosecution of offenders on indictment in the Supreme or District Courts, along with proceedings in Class 5 of the Land and Environment Court’s jurisdiction.

2. [37]

   Section 5F(2) gives the Attorney-General or the Director of Public Prosecutions a right to appeal to this Court against “an interlocutory judgment or order given or made in proceedings to which this section applies”. A defendant does not have such a right but may seek permission to appeal pursuant to s 5F(3), which provides as follows:

3. [38]

   Both subsections (2) and (3) apply with respect to “an interlocutory judgment or order given or made in the proceedings”. No part of that phrase is defined in the Criminal Appeal Act.

4. [39]

   In relation to civil matters, s 101(1) of the Supreme Court Act 1970 (NSW) states that, subject to other provision, an appeal lies to the Court of Appeal from “any judgment or order of the [Supreme] Court in a Division”. Section 101(2)(e) provides that leave to appeal is required from “an interlocutory judgment or order in proceedings in the Court”. That phrase is in substance the same as the phrase employed in s 5F. Section 127(2)(a) of the District Court Act 1973 (NSW) uses the same phrase in similarly providing that leave to appeal to the Court of Appeal is required from interlocutory judgments or orders of that Court.

5. [40]

   The starting point here is that the applicant seeks leave to appeal from what is a formal order of the Land and Environment Court. As recorded in the Justicelink system, the order is: “The Court orders that the defendant's application that Pritchard J recuse herself from hearing these proceedings is dismissed”. The order is interlocutory as it does not finally determine the rights of the parties: see Bienstein v Bienstein (2003) 195 ALR 225; [2003] HCA 7 at [25]-[28]. Nevertheless, the EPA relies on a series of decisions of this Court holding that a decision by a judge not to disqualify themselves is not an interlocutory judgment or order falling within s 5F. It submits that this Court should follow those decisions unless persuaded that they are plainly wrong, regardless of subsequent decisions of the Court of Appeal. It submits that those cases do not meet that threshold.

6. [41]

   The applicant argues that those decisions should no longer be followed in light of the recent Court of Appeal decision in Polsen v Harrison [2021] NSWCA 23, relating to s 101 of the Supreme Court Act, which judgment applied the decision of the High Court in Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48. The applicant does not put its argument in terms of the earlier decisions of this Court being “plainly wrong”; it submits that they have been overtaken by subsequent, binding High Court authority.

7. [42]

   The EPA invokes the following decisions: R v Rogerson (1990) 45 A Crim R 253 at 255; R v Reid (2004) 148 A Crim R 425; [2004] NSWCCA 301 at [12]-[15]; Gurung v R [2012] NSWCCA 201 at [41]; Chamoun v Director of Public Prosecutions (NSW) [2018] NSWCCA 182; Decision restricted [2023] NSWCCA 98. These decisions do not stand apart from Court of Appeal authority in the way that the EPA claims.

8. [43]

   In Rogerson Gleeson CJ, speaking for the Court, said the following in relation to an attempt to appeal a decision by a District Court judge declining to disqualify himself (at 255):

9. [44]

   As can be seen, his Honour relied on and followed the Court of Appeal’s decision in Barton v Walker. He said that he considered the reasoning there cogent, but did not add to it. It is not surprising that his Honour took this approach given the common language employed in the provisions in question. Given the absence of additional reasoning, the persuasive weight of Rogerson rises no higher than Barton v Walker.

10. [45]

    In Reid Spigelman CJ, speaking for the Court, said in an ex tempore judgment that “this is not an appropriate case to determine whether or not Barton v Walker, as applied in Rogerson, should continue to be followed”, noting that “[t]here has been no submission to this Court that Barton v Walker was wrong” (at [13]). The Chief Justice considered that the attempt to distinguish Barton was unpersuasive, and in any event seemed to conclude that the disqualification argument was without merit.

11. [46]

    Similarly, in an ex tempore judgment in Gurung, McClellan CJ at CL said at [49], with the agreement of Garling J, that “there is a real question as to whether or not this court has jurisdiction to entertain the appeal [relating to disqualification]. This is not the appropriate case in which to resolve that issue”. The majority considered that the disqualification argument was without merit in any event.

12. [47]

    In Chamoun Gleeson JA, speaking for the Court, noted the existence of “authorities which suggest that there is no jurisdiction under s 5F for the Court of Criminal Appeal to entertain an appeal against a judge’s refusal to disqualify him or herself because such a refusal does not constitute an interlocutory order so as to come within the terms of s 5F” (at [10]). His Honour then indicated that even assuming that an appeal was open, leave should be refused due to the lack of merit in the appeal.

13. [48]

    In Decision restricted [2023] NSWCCA 98, the applicant was self-represented. Ierace J, speaking for the Court, noted the above authorities, indicated that when the issue was raised with the applicant he was not able to respond to it (being not legally represented), and said that in any case even if leave was granted there would be no basis to conclude that the disqualification argument was made out.

14. [49]

    It can thus be seen that this line of authorities is founded on the acceptance in Rogerson that the Court of Appeal’s decision in Barton v Walker should be followed. In none of the cases cited has the issue been considered further, beyond recitation of earlier authority. And in each of the decisions after Rogerson relied upon by the EPA the Court found that the argument was without merit in any event.

15. [50]

    The EPA’s argument that decisions with respect to s 101(2)(e) of the Supreme Court Act are distinguishable is undermined by the very decisions of this Court on which it seeks to rely, being decisions which applied the earlier decision of the Court of Appeal.

16. [51]

    Barton v Walker, decided in 1979, concerned a case where an affidavit had been filed in Supreme Court proceedings seeking that the judge disqualify himself. The next day, in open court, the judge gave short reasons why that application would be rejected, doing so without having heard argument. He directed that the affidavit be taken off the Court’s file. It appears that that may have been the only formal order made. An application to appeal from this decision was brought in the Court of Appeal, together with separate proceedings seeking a declaration that the judge was disqualified from hearing the matter in question. Both applications were rejected.

17. [52]

    Samuels JA, speaking for the Court, discussed the nature of what had occurred in a procedural sense, noting that “that there is an informal practice which requires the individual judge to determine his own disqualification” (at 749). His Honour accepted, however, that a formal order could be made rejecting an application for disqualification, and implicitly accepted that this could be an order within the meaning of s 101(2)(e) (at 747). In his view, the issue “is best approached, therefore, by considering whether the appellants' request (as I have called it for need of some general term) amounted to a justiciable application” (ibid; emphasis added).

18. [53]

    His Honour considered that it did not (at 749-750):

19. [54]

    After reviewing some American authority, Samuels JA said (at 751):

20. [55]

    The decision was not one based on the statutory language of “interlocutory judgment or order”, but rather was founded on two linked notions: that there was no order in the nature of a command directed to any person, and that such decisions were not properly justiciable taking account of what were perceived to be the difficulties of courts dealing with such orders on an interlocutory basis. His Honour’s concerns about how appeal benches are to deal with disqualification applications might be thought prescient, incidentally, in light of the different views expressed on that issue in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419; [2023] HCA 15.

21. [56]

    In Bienstein, in 2003, a litigant sought to appeal to a full bench of the High Court alleging, amongst other things, that a decision of Hayne J, sitting alone, was affected by apprehended bias. Section 34 of the Judiciary Act 1903 (Cth) provides a right of appeal from a single justice, but leave to appeal is required for an “interlocutory judgment”. McHugh, Kirby and Callinan JJ dismissed the appeal as incompetent on the basis that leave had not been sought. Significantly, however, their Honours indicated that Hayne J’s decision not to disqualify himself was an interlocutory judgment capable of being the subject of an application for leave: at [23]-[29]. On that basis, their Honours went on to indicate that any such application would have been rejected on the merits in any event. However, Barton v Walker was not referred to, and it appears there was no argument made that such decisions were not encompassed by the statutory reference to an “interlocutory judgment”. Neither side was represented. The decision thus has limited direct significance for current purposes.

22. [57]

    Of greater importance is the High Court’s decision in Michael Wilson & Partners in 2011. It concerned a New South Wales Supreme Court case in which two applications had been made that the trial judge disqualify himself, each of which the judge had rejected. One of the appeal grounds raised against the final decision of the judge was that he erred in those earlier decisions. The Court of Appeal upheld the appeal on that basis. That decision was reversed in the High Court, which held that the bias ground was not made out. Even so, there was discussion of whether it was open to the respondent to have relied on the bias ground in relation to the final appeal when it had not sought leave to appeal from the earlier two decisions refusing the disqualification analysis.

23. [58]

    The joint judgment of four justices noted that some interlocutory decisions are of a nature that, if not challenged directly, the losing party will be taken to have given up the right to challenge the decision (at [78]-[79]). They then said the following (citations omitted):

24. [59]

    Their Honours indicated that the issue of whether the right to appeal the decisions had been given up in the circumstances of that case did not need to be decided. Heydon J, writing separately, said it was not necessary to consider questions about this issue, nor about the correctness of Barton v Walker (at [118]). Although the issue was not determinative in that case, the statements in the joint judgment constitute seriously considered dicta by a majority of the High Court: note Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [134].

25. [60]

    There was perhaps some room for argument as to quite what was meant by the disapproval in the joint judgment of Barton v Walker: note Polsen at [32]-[42]. Relatedly, the judgment did not address the language of “interlocutory judgment or order” in terms. However, doing so would have added little to the analysis. As explained above, and as noted in the joint judgment itself, Barton v Walker was based on issues of what was appropriately justiciable. The High Court has now indicated that interlocutory decisions on disqualification applications are capable of interlocutory appeal.

26. [61]

    The effect of the joint judgment was considered and made clear by the Court of Appeal in Polsen. As it said at [42]:

27. [62]

    The position taken by a majority in Michael Wilson & Partners, and followed in Polsen, has been reinforced by statements in the recent decision of QYFM. That case concerned an issue of disqualification which arose in the hearing of an appeal by an intermediate court of appeal. Members of the High Court expressed differing views on how such applications should be dealt with. But leaving aside Gleeson J, who did not address the issue, all members of the Court indicated that the determination of such issues should be recorded in an order of the court: see at [28] per Kiefel CJ and Gageler J; [103]-[104] per Gordon J, which passage was agreed in by Edelman J at [109] and Steward J at [193]; also [130] per Edelman J; [315] per Jagot J. That was indicated to be so, expressly or implicitly, in order to enable possible appeal or judicial review of that order. For example, Kiefel CJ and Gageler J said at [28] that a decision on a disqualification application “ought to be reflected in a curial order which embodies the court's formal resolution of the objection, subject to applicable procedures for appeal or review for jurisdictional error” (footnotes omitted). In support of the reference to “applicable procedures for appeal” their Honours cited Michael Wilson at [81] and Bienstein.

28. [63]

    These indications in QYFM are again inconsistent with the reasoning and conclusion in Barton v Walker. They imply that decisions on disqualification applications are sufficient commands to be justiciable on appeal, subject, of course, to applicable leave requirements. That point is reinforced by the fact that five members of the Court in QYFM indicated that a finding of bias went to the Federal Court’s jurisdiction: see [34], [56], [65], [121], [309]-[311]. It is not necessary to address here exactly what that means as regards a superior court of record. The relevant point is that determination of jurisdictional issues are readily regarded as interlocutory orders capable of being considered on appeal prior to final resolution of the matter by the court in question.

29. [64]

    Gordon J noted in QYFM at [88] that “[t]he practice and procedure for raising apprehended bias and determining objections has historically been informal”, citing Barton v Walker at 749. Part of that informality was that, as discussed in Barton, orders relating to the application may not have been entered as formal orders of the Court. The indication in QYFM that distinct orders should be made to determine such applications, one way or the other, cuts across arguments that any such informality precludes appeal.

30. [65]

    The EPA argues that this Court should not depart from the Rogerson line of authority in this Court unless persuaded that it is plainly wrong. That submission misunderstands the position. The applicant is not simply asking this Court to depart from its earlier decisions. Rather, it correctly argues that the Rogerson line has been undercut by High Court authority, as similarly has been recognised in the Court of Appeal.

31. [66]

    The EPA made various further arguments in support of its attempt to maintain the Rogerson approach. It sought to distinguish the notion of “interlocutory judgment or order” in s 5F(3) from that in other contexts, including s 101(2)(e) of the Supreme Court Act. It referred to authority of this Court establishing that an “order” within s 5F(3) is “a command by a court that something be done (or not done)”: R v Steffan (1993) 30 NSWLR 633 at 636; KN v R (2017) 95 NSWLR 767; [2017] NSWCCA 249 at [52]. On that basis it has been held that rulings on evidence in advance of trial do not constitute a judgment or order within the meaning of the section: R v Cheikho (2008) 75 NSWLR 323; [2008] NSWCCA 191 at [22]. A key reason for that conclusion is that such an order lacks finality, as “in the ordinary case … it can be changed during the course of the proceedings”: R v Bozatsis (1997) 97 A Crim R 296 at 303. Such decisions can be contrasted with orders which “finally dispose of any discrete part of the proceedings”: AF v R [2015] NSWCCA 35 at [32].

32. [67]

    As the EPA accepted, the decision in QYFM precludes it now being said that disqualification decisions are not sufficiently in the nature of commands to be orders reviewable on appeal. Further, unlike advance rulings on evidence, disqualification decisions do finally dispose of a discrete part of the proceedings in that they definitively resolve the disqualification application in question (as opposed to any later such applications made on a different basis). That understanding is implicit in the passages quoted above from Michael Wilson & Partners.

33. [68]

    The EPA sought to rely on the second reading speech of Attorney-General Terry Sheahan in relation to legislation which introduced s 5F into the Criminal Appeal Act and made some changes to the Supreme Court Act. The Attorney expressed concern about a practice which had developed of applying to the Court of Appeal for review of decisions by the District Court to refuse applications for a stay of proceedings. He said that the “proliferation of these interlocutory applications to the Court of Appeal has resulted in significant disruption to the criminal justice system” (Legislative Assembly, 17 November 1987, Hansard p 16087). Yet neither that statement nor the speech generally addresses precisely what sorts of orders are encompassed by s 5F, beyond (implicitly) stay applications.

34. [69]

    The EPA’s argument also suggested that at that time the Attorney and the Parliament must have been aware of Barton v Walker and must have meant for the same approach to apply to the notion of “interlocutory judgment or order” as used in s 5F. This argument invokes the presumption of re-enactment, that is, that “where the Parliament repeats words which have been judicially construed, it is taken to have intended the words to bear the meaning already ‘judicially attributed to [them]’”: Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96 at 106, [1994] HCA 34.

35. [70]

    The application of that presumption depends on all the circumstances: Director of Public Prosecutions Reference No 1 of 2019 (2021) 274 CLR 177; [2021] HCA 26 at [51]-[52]. Its invocation here is unpersuasive. The decision in Barton v Walker was not mentioned in the Attorney’s speech, and it is implausible here to suggest that the effect of a Court of Appeal decision from eight years before, on an issue unconnected to what prompted the legislative changes, was something that the Parliament was meaning to address. More generally, insofar as the Parliament was picking up the phrase “interlocutory judgment or order” employed in s 101(2)(e) of the Supreme Court Act, it is more likely that it intended that the two in general be construed harmoniously – subject always to consideration of their distinct contexts – rather than that however the Supreme Court Act phrase had been construed to that date should be fixed in aspic as regards its use in s 5F: see analogously Sportsbet Pty Ltd v New South Wales (2012) 249 CLR 298; [2012] HCA 13 at [9].

36. [71]

    The EPA acknowledged that significant waste and inconvenience could occur if any challenges to the decisions of trial judges not to disqualify themselves could only be addressed as part of an appeal from the final decision of the court. It suggested that any such difficulty could be ameliorated by the fact that the Supreme, Land and Environment and District Courts can, when exercising summary jurisdiction, submit any question of law to the Court of Criminal Appeal for determination pursuant to s 5AE of the Criminal Appeal Act. That submission undermines the EPA’s submission that to permit appeals under s 5F(3) would be disruptive to criminal hearings. In any case, the argument is no answer to the significance of the recent High Court decisions.

37. [72]

    The EPA’s arguments that Michael Wilson & Partners and Polsen should be distinguished, because they were directed to appeal rights under the Supreme Court Act rather than the Criminal Appeal Act, are thus not made out. The conclusion in Rogerson that a decision on a disqualification application is not an interlocutory judgment or order capable of being appealed under s 5F of the Criminal Appeal Act, like the equivalent decision in Barton v Walker on which it was based, is no longer good law and should not be followed. A decision to grant or refuse an application for disqualification based on bias is an interlocutory order capable of being the subject of an application under s 5F of the Criminal Appeal Act.

Leave to appeal

1. [73]

   The fact that it is open to appeal the trial judge’s order does not mean that the Court should grant leave to do so. There are well-established, significant reasons for exercising restraint in granting leave to determine interlocutory disputes in criminal matters. Thus leave will not be granted readily: R v Dinh (2000) 120 A Crim R 42; [2000] NSWCCA 536 at [34]. As Johnson J explained in Agius v R (2011) 80 NSWLR 486; [2011] NSWCCA 119 at [10] (citations omitted):

2. [74]

   In this case it is appropriate to grant leave to appeal for the following reasons:

   1. (1)

      The issue of whether Barton v Walker and Rogerson should continue to be followed is an important one which itself merits a grant of leave and full consideration of the issues raised.

   2. (2)

      The proceedings are listed for a further four days of hearings in November, with no guarantee that the case will be completed in that time. Significant further time and resources of the Land and Environment Court and the parties will be employed in determining the case. Witnesses will be required to give evidence. If it were to be held in any subsequent appeal that the trial judge should have disqualified herself then all of that will be for nought, and the matter will need to be retried.

   3. (3)

      This application can be determined prior to resumption of the trial, thus avoiding unacceptable disruption of the proceedings.

   4. (4)

      In the unusual circumstances of this case, involving a judge meeting a critic of one party in chambers, it is in the interests of justice that any doubt about whether the trial judge should continue to hear the matter be resolved.

3. [75]

   That leave is granted in this case should not be understood to suggest that it will readily be granted when a disqualification issue is raised. There is a long line of authority militating against interference in the conduct of criminal prosecutions through appeals against interlocutory decisions, referring to concerns as to the dangers of fragmenting the criminal justice process. That is particularly so in proceedings involving a jury. In Chow v Director of Public Prosecutions (1992) 28 NSWLR 593, at 599-600, Kirby P observed as follows:

4. [76]

   The importance of this principle has been stressed in many other decisions of the higher courts, including Re Rozenes; Ex parte Burd (1994) 68 ALJR 372 at 373, [1994] HCA 11; Chief Executive Officer of Customs v Jiang (2001) 111 FCR 395; [2001] FCA 145 at [7]-[12]; Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162; and Woodhouse v Director of Public Prosecutions [2015] NSWCA 40. The harm potentially done by delayed and undetermined criminal allegations, and the strong public interest in the expeditious finalisation of such matters, was emphasised in Seymour v Attorney-General (Cth) (1984) 4 FCR 498 at 501:

5. [77]

   These considerations will weigh heavily against a grant of leave in any application brought pursuant to s 5F that seeks to challenge a decision of a trial judge concerning a disqualification application. In future cases, the question of principle resolved by this Court’s decision will not arise, and it is unlikely that the unusual circumstances of this case will recur.

Whether the trial judge should have disqualified herself

1. [78]

   The principles relating to disqualification for apprehended bias were not in dispute: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]-[8]. 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. Application of that test involves two steps. First, it requires the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. Secondly, there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.

2. [79]

   The trial judge seemingly accepted that some relevant matter had been identified for the purposes of the first step, being the circumstances of her interaction with Ms Christie in chambers: at [73]. Her Honour held that the argument failed at the second step. Her core conclusion was expressed as follows:

3. [80]

   The applicant argues that her Honour erred in this conclusion. There are three overlapping strands to its case:

   1. (1)

      a concern that the trial judge did not disclose the substance of what Ms Christie said that led her quickly to terminate the meeting;

   2. (2)

      that whatever was communicated “might have had the capacity to unconsciously compromise the impartiality of the Trial Judge”; and

   3. (3)

      the fact that her Honour did not disclose the meeting until the issue was raised by the applicant over six months later.

4. [81]

   The applicant submits that the very fact that her Honour has not disclosed precisely what it was that Ms Christie said that caused her to bring the meeting to a rapid close raises a concern. The applicant submits that her Honour has failed “to properly, fairly and frankly disclose what it was that was said to her” by Ms Christie. What was and was not disclosed in this regard is discussed above at [27]-[33].

5. [82]

   Her Honour indicated at [76] of her judgment that “[t]here is no evidence that any information was communicated to me by Ms Christie, other than that which allowed me to understand that I had proceeded on the basis of a misunderstanding and terminate the interaction”. There is force in the applicant’s submission that to refer to there being “no evidence” was not a real answer to their concerns in circumstances where the only witnesses to the conversation were the judge herself (and perhaps her tipstaff or associate) and Ms Christie. That being said, either side could have sought to obtain evidence from Ms Christie (who may well have had the clearest recollection of what was said on 3 February), and there is nothing to suggest that they did so.

6. [83]

   In any event, it is important to note there is no suggestion that by choosing to meet Ms Christie in chambers the trial judge might have been manifesting some favourable disposition to people critical of the applicant’s mining activities. The applicant has not disputed that her Honour’s invitation was an innocent case of mistaken identity. Nor has any criticism been made of the fact that the trial judge, consistently with what was said to be a practice in the Land and Environment Court, was prepared to invite a university student who was (as her Honour had understood it) observing the case for educational purposes into chambers for a discussion and a cup of tea. If the apprehended bias application had involved suggestions that the invitation of Ms Christie into chambers itself created a concern, then the absence of a clearer statement on this issue might have reinforced a concern about the possible appearance of a judicial predilection to look favourably on critics of the applicant’s mining activities.

7. [84]

   Further, by the time that the issue was raised directly by the applicant on 8 September 2023 some seven months had passed since the interaction, and the fair-minded lay observer (whose characteristics are discussed further below) would accept that for judges, as for anyone else, memories fade. In the circumstances we do not consider that a fair-minded lay observer would attribute much significance to the fact, of itself, that her Honour did not address precisely what was said.

8. [85]

   That being said, as indicated, the absence of clearer disclosure means that we will proceed on the basis outlined, namely, that Ms Christie communicated to the judge that she had a particular interest in the prosecution, and may have communicated to the judge, expressly or impliedly, a negative view of the applicant’s mining activities at Maules Creek.

9. [86]

   The applicant’s argument on this central strand is founded on the premise that “there was a private meeting in chambers between the Trial Judge and a person who is a longstanding and active campaigner against Whitehaven Coal and the Maules Creek Mine with interests aligned with the prosecutor in relation to the prosecution of the charges”. It argues that even without more this might be enough to satisfy the test. The applicant then builds on its factual submission that something was communicated by Ms Christie in chambers which was connected to the prosecution, being something that the trial judge considered improper or inappropriate.

10. [87]

    The applicant argues that in light of what was (or may have been) communicated to the trial judge by Ms Christie, the observer might consider her Honour’s impartiality in resolving the case might unconsciously be compromised. These matters arise in a context where what is at issue in the prosecution is not just objective facts as to what occurred, but evaluative judgments as to, for example, whether the applicant carried out activities in a competent manner.

11. [88]

    There is no doubt that the law has a repugnance to judges receiving communications about a case outside court processes. The applicant invoked three cases in support of its argument.

12. [89]

    The issue was addressed in Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39. Gibbs CJ explained relevant principles, and their importance, as follows (at 346-347, citations omitted):

13. [90]

    Mason J similarly stated that it “would be inconsistent with basic notions of fairness that a judge should take into account, or even receive, secret or private representations on behalf of a party or from a stranger with reference to a case which he has to decide” (at 350).

14. [91]

    That case involved custody proceedings in the Family Court. A court counsellor had prepared reports on certain issues in which her conclusions favoured the wife. In light of something in the last report the parties had agreed in the morning of the second day of the hearing that an adjournment was needed to address something raised. When the counsellor became aware of this she approached the wife at court and told her she thought the proposed adjournment was outrageous and that she proposed to do something about it. Amongst other things the counsellor met privately with the judge hearing the matter in the lunch break, during which she communicated some views. Those views not only opposed the proposed adjournment but involved opinions again strongly favouring the wife. The judge then called counsel for both parties into her chambers, and a further discussion about the issues was conducted in their presence.

15. [92]

    The High Court, by majority, held that the private discussions between the judge and counsellor gave rise to an apprehension of bias. Gibbs CJ, for example, said that the husband “was entitled, not unreasonably, to fear that the counsellor may have made remarks adverse to him when she was alone with the judge and that the judge might have been influenced by them” (at 350). Mason J held that the seriousness of the departure from cardinal principle was “certainly alleviated by the judge's prompt and proper disclosure to counsel for the parties of the approach made by [the counsellor] and of the substance of the discussion which occurred in private chambers” (at 355). However, his Honour considered that a reasonable apprehension of bias still arose from the circumstances, including in particular because a private approach had been made by a potential witness to the judge, that the witness had expressed views about matters in dispute, and “the judge seems to have proceeded on the footing that the initiative taken by [the counsellor] required serious consideration by the court and counsel for the parties” (at 356). Brennan J reached a similar conclusion. Wilson and Dawson JJ dissented, considering that any actual or apparent prejudice had been cured by full and prompt disclosure by the judge, such that the matters raised could be contested.

16. [93]

    The facts of that case are a long way removed from this matter, where the judge did not knowingly receive a person connected to the proceedings, and where nothing of substance connected to the case was discussed.

17. [94]

    The High Court addressed the issue of private communications to judges more recently in Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29. A Family Court judge had, in March 2016, listed a dispute involving a property dispute between a husband and wife, in which other parties were also involved, for hearing before him in August 2016. The judge reserved judgment in September 2016, having in the meantime dismissed an application that he disqualify himself based on remarks and rulings made by him, which application was opposed by the wife. Judgment on the property dispute was delivered in February 2018. It later emerged that in the period from March 2016 until delivery of judgment, the judge and counsel for the wife had met for a drink or coffee on some four occasions, had spoken on the phone on five occasions, and had exchanged numerous text messages throughout the period other than a brief hiatus during the evidence stage of the trial. The barrister said that her communications with the judge in that time did not concern “the substance of the case”.

18. [95]

    In a joint unanimous judgment the High Court overturned a majority decision of the Full Court of the Family Court, holding that the judge’s decision on the property dispute should be set aside for apprehended bias. Having referred to the principles about private communications stated in Re JRL, the Court said:

19. [96]

    The Court labelled as erroneous reasoning in the Full Court that the fair-minded lay observer would not have considered the communications sinister. The High Court emphasised that even the appearance of departure from independence and impartiality was prohibited, and no prediction is involved in deciding whether the judge might not bring an impartial mind to bear, nor did any question arise “as to the understanding or motivation of the particular judge” (at [18]). The Court was also critical of suggestions that the hypothetical observer would have understood that the judge and counsel would adhere to professional restraint in what was discussed. It said that the observer “is not conceived of as a lawyer but a member of the public served by the courts”, and that it “would defy logic and render nugatory the principle to imbue the hypothetical observer with professional self‑appreciation of this kind” (at [21]).

20. [97]

    The Court also said this as to the failure of the judge to disclose the interactions with the wife’s barrister:

21. [98]

    Again, the facts of that case are well-removed from this case. That case involved deliberate breaches of established principles, over an extended period, by the judge and counsel.

22. [99]

    The applicant relied upon a third case involving persons exercising judicial power having contact with someone connected to a case: Rex v Justices of Bodmin; Ex parte McEwen [1947] 1 KB 321. Justices of the peace were sentencing a soldier who had pleaded guilty to an offence. An officer of the accused’s army unit was called as a witness of character, who said that the accused was of good character when not drinking, adding “I could say a lot more but I think I had better not”. After the magistrates had retired to consider the sentence they sent for the officer and interviewed him in the absence of the accused and representatives of either side. Counsel appearing for the justices submitted that nothing improper took place, and they had merely desired to know what effect conviction and sentence would have on the accused’s service in the army. Unsurprisingly, the sentence was quashed. Lord Goddard CJ, speaking for the court, said this (at 325):

23. [100]

    Once again, that decision is of quite a different order to what occurred here, involving, as it did, a deliberate decision to interview a witness in the case in private to ascertain matters relevant to the judgment to be made.

24. [101]

    As noted, as regards the first Ebner step, the matter that the applicant relevantly says might lead the judge to decide the prosecutions other than on its legal and factual merits is the possibility of unconscious compromise of impartiality in light of her interaction with Ms Christie. There is no doubt that such a concern, to the extent it arises, suffices to make out the first step. The second step question is the presence of a logical connection between that concern and the feared deviation from the course of deciding the case on its merits. Here, the two questions overlap, both depending on the significance of the concern about not addressing issues in the case on their merits in light of the interaction between the judge and Ms Christie.

25. [102]

    Although the test involves two “mights”, it also involves the notion of there being a reasonable apprehension of bias, which requires more than fanciful or speculative possibilities: note Re JRL at 533; R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553, [1969] HCA 10; CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 at [19]. The hypothetical fair-minded lay observer is not a lawyer. Even so, the nature of the decision-maker is relevant: CNY at [58] and [136]. As regards judges, the observer is taken to understand 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) 201 CLR 488; [2000] HCA 48 at [12]. Even so, they may be taken “to recognise that even a professional decision-maker is not ‘a passionless thinking machine’ and that information consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-making”: CNY17 at [28], citation omitted.

26. [103]

    Although the observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice”: Johnson at [13], citation omitted. The observer is “taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision”: Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [23]. Thus, they can be taken to have some basic understanding of the nature of the court in which the judge sits, and the sorts of matters that are determined by that court.

27. [104]

    The observer can also be taken to understand that judges are human beings: note CNY17 at [133]. The observer is “neither complacent nor unduly sensitive or suspicious”: Johnson at [53]; note also CNY17 at [19]. Thus, for example, the observer “would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers”: Johnson at [53] per Kirby J, citing Galea v Galea (1990) 19 NSWLR 263 at 282. The observer would thus also understand that judges are members of the community, who may read newspapers, listen to news reports, view social media, and have discussions with family and friends, in the course of which they may be exposed to a range of views, including possibly about issues involved in cases they may later come to hear or even currently are hearing.

28. [105]

    Here, the trial judge did not know who Ms Christie was when inviting her into chambers. It was, as she said, a case of mistaken identity. There was “a very short conversation”. In the course of that exchange we assume a negative view of the applicant’s mining activities at Maules Creek was expressed by Ms Christie. There was no discussion of the substance of the case. What occurred next is significant: the judge immediately terminated the interaction. She did nothing that would lead the observer to detect that she might be inclined to adopt, or have a sympathetic view towards, any such expression.

29. [106]

    At highest, thus, the trial judge may have been exposed briefly to an expression of a critical view of the applicant by someone who, it turns out, is an established critic of the sorts of mining activities at issue. The trial judge may equally have been exposed to such opinions by reading newspapers or social media, listening to the radio, watching television, by having the benefit of the views of a taxi driver dropping her at the court, by seeing signs at a protest gathering in Martin Place, or from past conversations with family or friends.

30. [107]

    Moreover, it is not insignificant that the judge sits in the Land and Environment Court, the business of which is to hear disputes about planning and environmental matters. No member of that Court could fail to appreciate that there is a range of strongly held opinions by members of the community about mining activities, including as to the effects of those activities on the immediately surrounding environment. The fair-minded lay observer would understand that.

31. [108]

    Here, that the judge was exposed to one more such opinion, very briefly, and in innocent if unusual circumstances, does not suffice to establish that the fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions the judge is required to decide. The observer, acting reasonably, can be taken to understand that by training and common practice the judge would completely ignore whatever was said. It was at most just one more instance of the myriad opinions in the community, expressed by a stranger in a brief encounter based upon mistaken identity, and of no relevance or utility in resolving the matters in dispute before her based upon the evidence, namely, whether it was established that the applicant had not carried out licensed activities in a competent manner, or had failed to deal with explosives in a proper and efficient manner.

32. [109]

    The facts of Re JRL, Charisteas and Bodmin are rather remarkable in terms of the fact of the private meeting with an actual or potential witness and the content of what was communicated in Re JRL and Bodmin, and the number of interactions over a long period in Charisteas. Such remarkable facts are not necessarily required to make out the disqualification test when considering the significance of private communications, especially given the law’s repugnance to such occurring at all. Nevertheless, it is worthy of note that this case is far distant from those in terms of the nature of the interaction, its brevity, and the innocent reason for holding the meeting in the first place.

33. [110]

    The applicant also points to the fact that the trial judge did not disclose her interaction with Ms Christie around the time it occurred or, in fact, until queried about it some seven months later. Senior counsel for the applicant accepted that non-disclosure alone would not be enough to make out the disqualification argument. Nevertheless, the argument should be considered in light of all of the circumstances of the case.

34. [111]

    The applicant relies upon an observation by Merkel J, relating to non-disclosure, that a “party or the public may well be left with the impression that there was intentional concealment or non-disclosure, or that something was ‘wrong about it all’”: Aussie Airlines v Australian Airlines (1996) 65 FCR 215 at 221. The applicant submits that her Honour “incorrectly approached the question of whether she should have disclosed the meeting by assuming acceptance of the explanations she has given of what occurred and how it came to occur when she eventually did disclose it”.

35. [112]

    Four members of the High Court explained the need for disclosure, and the significance of a failure to disclose, in Ebner (citation omitted):

36. [113]

    Thus judges should disclose matters if there is a serious possibility that they are potentially disqualifying. The applicant is correct to argue that the issue does not depend simply on whether the judge considers that the matter would not be disqualifying. The standard is less demanding than that, for the obvious reason that determination of the significance of the issue may be affected by submissions, and perhaps evidence, from the parties. That being said, the notion of “serious possibility” involves some degree of judgment being brought to bear, on which different people may reasonably take different views.

37. [114]

    The trial judge here indicated that the interaction had not seemed necessary to disclose in the circumstances (see above at [34]). That conclusion is understandable but in our view it was erroneous. It can be accepted that the interaction was limited, and there is nothing to suggest her Honour appreciated that Ms Christie was a vocal public critic of the applicant’s mining activities. The fact remains that it is quite unusual for a judge to have an interaction in chambers in the course of hearing a case with someone who has some personal interest in or connection to the case. That her Honour appreciated the significance of this was manifest by her immediate termination of the meeting. As already noted, it is understandable that the applicant might have been concerned about the interaction.

38. [115]

    As to the significance of the non-disclosure, then, as indicated in Ebner the question is whether it casts some evidentiary light on the ultimate question of reasonable apprehension of bias. That is to say, does that fact, taken together with all of the other facts, itself lead to a conclusion that the disqualification test is satisfied? In some cases, for a judge not to have disclosed something which clearly and obviously raised a question about potential apprehended bias might itself strengthen a conclusion about how the fair-minded lay observer would view the matter.

39. [116]

    Here, even if the decision made by the trial judge was an erroneous one it was also understandable given the innocent occurrence and brief interaction. As emphasised already, a fair-minded lay observer would not consider that her Honour might have manifested a judicial inclination towards one side by the fact of having invited Ms Christie into chambers. And we have indicated above that her Honour’s fleeting encounter with someone who may have expressed a negative view of the applicant’s mining activities does not suffice to make out the apprehended bias test.

40. [117]

    This is not a case where the fact of non-disclosure, even taken together with the other matters considered above, might create an impression in the fair-minded lay observer “that something was wrong about it all”. In the end, the fair-minded lay observer would reasonably conclude that what occurred was an innocent if unfortunate event of no practical significance to the resolution of the matters in dispute in the proceedings, and that it was understandable (if mistaken) that her Honour did not disclose it.

Orders

1. [118]

   The orders of the Court should be as follows:

   1. (1)

      Grant leave to appeal pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW).

   2. (2)

      Dismiss the appeal.