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Bakarich v Commonwealth Bank of Australia [2010] NSWCA 314. 26.11.10. The Court.

59 In our opinion, the circumstance that the primary judge represented the Bank on a number of occasions while he was a barrister was not a circumstance such that the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the issues.

The evidence does not suggest that the primary judge’s representation of the Bank indicated a relationship that was of the order of that considered in S & M Motor Repairs Pty Limited v Caltex Oil (Australia) PL (1988) 12 NSWLR 358; and the majority of the Court of Appeal in that case held that the trial judge did not err in not disclosing his relationship with Caltex and in not disqualifying himself.

Kirby P, in dissent, held that the trial judge in that case should have done so, but did so on the basis of the duration and intensity of the judge’s connection with Caltex (at 375).

The evidence does not suggest a connection of that kind in this case.

60 Accordingly, in our opinion, it was not necessary for the primary judge in this case to have disclosed that he had, when a barrister, acted for the Bank on a number of occasions between 1995 and 1998: cf Re Polites (1991) 173 CLR 71.

Goodwin v J & P Employment and Training Services (9) Pty Ltd t/as Drake Recruitment and Training [2008] NSWWCCPD 57 (11 June 2008) Roche DP

51. Whether Mr Goodwin alleges actual bias or apprehended bias is not identified.

A party who alleges apprehended bias is not entitled to stand by until the final decision is known before objecting, but must raise the issue at the hearing: Vakauta v Kelly [1989] HCA 44;(1989) 167 CLR 568.

Mr Goodwin did not do that and is not entitled to raise this issue for the first time on appeal.

52. If actual bias is relied upon, I make the following observations and findings.

An allegation of actual bias should not be lightly made.

If it is made, it must be “distinctly made and clearly proved”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69].

To establish that the Arbitrator was guilty of actual bias in the form of pre-judgment, Mr Goodwin has to prove that she was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: Jia Legeng at [72].

The question is not whether the decision maker’s mind is blank but whether it is open to persuasion: Jia Legeng at [71]).

Pre-judgment is not established merely because an Arbitrator has formed a preliminary view about the outcome of a matter.

As McColl JA stated at [103] in Edmonds, “It would be remarkable, and most probably amount to a failure to discharge his functions, if he [the Arbitrator] had not” formed a view about the outcome.

The question of bias must be considered in the context of the nature of the decision-making process in which the Arbitrator is engaged and having regard to the role he or she plays in that process: Edmonds at [103].

The nature of the jurisdiction exercised by an Arbitrator makes it “obligatory that he form a view about the issues”: Edmonds at [105], but the expression of such a view does not amount to bias in the form of pre-judgment.

54. Applying the above authorities to the present matter, the allegation of bias has not been “clearly proved”. The Arbitrator’s statements at paragraph 29 of her Reasons were factually accurate and disclose no suggestion of pre-judgment of the issues she had to determine. This challenge to the Arbitrator’s decision has no merit and should not have been made.

NSW Judicial Commission: Disqualification for bias >>

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