Ever had that sinking feeling that a judge is not giving your case a fair hearing? Or that a judge has made up his or her mind about the case without even hearing the evidence or listening to your submissions? A solicitor who sued for unpaid fees against an unrepresented former client would surely have had that feeling when his case came before Magistrate Smith of the Magistrates’ Court of Victoria.

Magistrate Smith took it upon himself to explain to the solicitor’s counsel why the pleaded cause of action was bound to fail (on grounds which had not been pleaded) and then took it upon himself to rigorously cross-examine the solicitor. The solicitor was understandably dissatisfied with this treatment and appealed to the Victorian Supreme Court. From there he appealed to the Victorian Court of Appeal which held unanimously that Magistrate Smith’s ‘egregious’ conduct involved a substantial denial of procedural fairness and gave rise to apprehended bias. It was also held that Magistrate Smith’s firmly expressed views on the applicable law were wrong. The Court of Appeal noted that it was highly regrettable that the review and appellate jurisdictions of the Supreme Court were invoked, resulting in significant costs and delays, because Magistrate Smith did not act judicially.

On the question of procedural fairness, the Court noted that:

Procedural fairness is directed at the fairness of the decision-making process rather than fairness of outcome, and includes a judicial obligation to afford a party a reasonable opportunity to present or meet a case. Procedural fairness may be denied to a party where a court makes a decision on grounds that were not pleaded or argued and without giving the party adversely affected a reasonable opportunity to give evidence and make submissions on those grounds. 

The test for finding of apprehended bias by the Court was as follows:

The appearance of impartial justice would be compromised if the words or actions of a judge conveyed the impression that he or she had preconceived adverse views about a party’s case and that those views were so strongly held that the judge was unwilling or unable to consider on their merits any submissions made, or evidence adduced, by that party which were inconsistent with those views. However, the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias.

Kuek v Phillips

This decision provides useful reminder that there are limits to judicial interference in the conduct of legal proceedings and that judicial officers should be careful not to conduct themselves in an unjudicial manner.