Apprehended pre-judgment bias in the modern era of docket judge case management

21 October 2013 | By Odette Gourley (Partner)

In the modern era of case management and the Federal Court’s adoption of the Individual Docket System, the Docket Judge, who is acquainted with the issues in a case, will retain the case to trial, sometimes after contested interlocutory applications, for example, for an interim injunction pending the final trial.

It is a matter of common experience that, in the course of interlocutory occasions, the Court will sometimes ask questions of counsel, put possible arguments to counsel etc., and that discussion is sometimes vigorous.  Is the result that a fair-minded observer would apprehend that the Court had already reached a concluded view and would not be able to bring an unbiased mind to the determination of the issues at final trial?

In what circumstances would the conduct of the Docket Judge give rise to the apprehension so that he or she should stand aside?  And, if a judge recuses himself or herself too readily from further hearing the case, does this come at a cost to the efficiency with which the case is managed?  Would too ready accession to requests of that kind provide unhelpful incentives to sophisticated litigants?

Either way, “case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation.  But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.”[1]

These questions arise after a recent refusal by Justice Rares in the Federal Court of Australia, Docket Judge in the relevant proceedings, to stand aside at the request of the respondent which had unsuccessfully contested an interlocutory injunction application (though subsequently reversed on an urgent interlocutory appeal).[2] 

The recusal application

Following a successful interlocutory injunction application against GlaxoSmithKline Australia Limited (GSK) by Reckitt Benckiser Healthcare (UK) Limited (Reckitt Benckiser) in relation to a liquid dispensing apparatus alleged to infringe a patent held by Reckitt Benckiser,[3] subsequently reversed on appeal,[4] GSK submitted that an apprehension of bias through pre-judgement arose and the proceedings should be transferred to another Docket Judge. GSK so submitted, given comments made by his Honour in relation to two matters, one concerning the evidence of an independent expert relied on by GSK and the other the construction of a claim of the patent in issue in the proceedings. 

GSK submitted that an apprehension of bias through pre-judgement arose in relation to the weight to be given to expert evidence, given comments made by his Honour during argument on the interlocutory injunction application.  For example, in relation to the expert’s reliance on a particular medical standard when construing the claims of the patent in suit, the following discussion occurred between his Honour and GSK’s counsel:

“HIS HONOUR: This is just nonsense isn’t it. The standard doesn’t apply to aspiration or irrigation syringes or the syringes used in conjunction with syringe pumps. This is for a sterile medical use, for a needle. I mean, really, this is just a general medical use. It’s not for domestic use. It’s not for the claim in this thing. And, it doesn’t apply to all syringes. So, how on earth can this be addressed to this particular kind of syringe?

MR WEBB: Well, your Honour because

HIS HONOUR: It just cannot be read that way, can it, as an ordinary English man.

MR WEBB: Unlike

HIS HONOUR: Or, at least it’s certainly a pretty weak at the moment to my mind.

MR WEBB: Well, your Honour, we think to the contrary. We think it’s an overwhelmingly powerful.”[5]

In the Court’s reasons on the interlocutory injunction application, the Court found that the expert’s evidence was of some weight but was not persuaded that the expert’s view was sufficiently strong to displace the view of the expert for the applicant that there was no assistance to be gained from the standard.[6] 

On the question of construction of a claim of the patent in suit,[7] GSK submitted the apprehension of pre-judgement arose because, at a directions hearing, his Honour had expressed an initial strong reaction against the construction of the claim contended for by GSK and had maintained this view throughout the interlocutory hearing. The Court’s view of the construction of the claim, for the purposes of the interlocutory injunction application, was later reversed on appeal.

The relevant principles

The Court’s judgement refusing the recusal application usefully gathers together the relevant authorities as to apprehended bias by reason of pre-judgement.

The test for establishing an apprehension of bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.”[8]

The test does not prohibit a judge forming views or making statements prior to judgment.[9]  Referring to Johnson v Johnson, his Honour observed that during proceedings a judge’s function includes intervening and expressing tentative views to enable the judge to understand the evidence being presented, to test the correctness of the evidence and to give counsel guidance.[10]  

His Honour also referred to Cabcharge Australia Limited v Australian Competition and Consumer Commission, when noting that “the requisite state of the judge’s mind is that the fair-minded lay observer might reasonably consider, as a real possibility, that the judge might be so committed to a conclusion already formed that he or she is incapable of altering it, whatever evidence or arguments may be presented.”[11]  There must be a real, and not remote, possibility that the judge might be so committed, and that disqualification on the basis of reasonable apprehension of bias by reason of pre-judgment must be “firmly established”.[12]

Application of the principles to the case

In relation to GSK’s submission that there was an apprehension of bias through pre-judgment in relation to the weight to be given to the expert evidence, his Honour noted that during the interlocutory hearing he considered the expert evidence led by both parties. In the interlocutory injunction decision, his Honour had determined, on balance, that while he did attach weight to the expert evidence led by GSK, he did not find it “sufficiently strong to displace” the evidence led by Reckitt Benckiser’s expert.[13]  His Honour’s remarks as to the relevance of the expert’s reliance on the medical standard were intended to assist in assessing the strengths and weaknesses of the parties’ arguments to determine whether a prima facie case had been established, and did not amount to predetermination of the issues.[14]  Even if GSK called the same expert at trial (and his Honour proceeded on the basis that they would), the expert’s evidence may not be confined to what was led at the interlocutory hearing, given the expert may give further evidence and be subject to cross-examination.[15]

As to GSK’s submission that his Honour had an initial strong reaction against its construction of a claim of the patent, his Honour noted that the Full Court had taken a substantially different view as to the relative strengths of the parties’ construction of the claim.[16]  In recognising that the Full Court rejected his Honour’s prima facie construction of the claim, his Honour acknowledged that he would be guided by the Full Court’s reasoning at trial when reconsidering the issue of construction, and therefore had not reached any conclusive views as to construction.[17]

In dismissing GSK’s application, his Honour held that no final views on any issues had been formed, as the case is still “at a protean stage”.[18]  In addition to having regard to the Full Court’s comments in making his final determination, his Honour would have the benefit of hearing the case put forward by each of the parties in the context of “a fully contested trial at which there will be many other issues...that will no doubt inform, far better than an urgent interlocutory application, a judge in arriving at a final review”.[19]  In any event, his Honour emphasised that “whatever happens at the trial will be an entirely new matter”.[20]


Although not necessary to decide, his Honour also found that GSK had waived its right to object to the trial judge continuing to hear the matter.[21]  GSK’s recusal application was initially raised with his Honour in chambers prior to the Full Court hearing.  In chambers, his Honour suggested that GSK’s application might be unnecessary, depending on how the Full Court dealt with GSK’s appeal.[22] No ground of appeal depended on the arguments used in support of recusal and GSK did not ask for the matter to be remitted to another judge when the Full Court delivered its reasons.  As a result, his Honour, by reference to Vakauta v Kelly, held that GSK had waived its right to object to the primary judge continuing to hear the matter.[23]


The circumstances of this case are not uncommon in the modern era of case management by a Docket Judge and give rise to the questions identified above.  As GSK has now sought to appeal from the decision of the primary judge not to stand aside, further guidance may be forthcoming from the Full Court. 

[1]  Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 154 and cited in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 at [29].

[2]  Reckitt Benckiser Healthcare (UK) Ltd v GlaxoSmithKline Australia Pty Ltd (No 3) [2013] FCA 1043 (Judgment).

[3]  Reckitt Benckiser Healthcare (UK) Ltd v GlaxoSmithKline Australia Pty Ltd [2013] FCA 583.

[4]  GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Limited [2013] FCAFC 102.

[5]  Transcript for Reckitt Benckiser Healthcare (UK) Ltd v GlaxoSmithKline Australia Pty Ltd, 17 July 2013, page 87 line 34 to page 88 line 4 quoted in the Judgment at [6].

[6]  Reckitt Benckiser Healthcare (UK) Ltd v GlaxoSmithKline Australia Pty Ltd (No 2) [2013] FCA 736 at [15].

[7]  Australian Patent No. 2003283537 entitled “Improvements in and relating to liquid dispensing”.

[8]  Judgment at [10] quoting Johnson v Johnson (2000) 201 CLR 488 at 492.

[9]  Judgment at [11] citing The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 554.

[10] Judgment at [11] citing Johnson v Johnson (2000) 201 CLR 488 at [13] –[14].

[11] Judgment at [13] quoting Cabcharge Australia Limited v Australian Competition and Consumer Commission [2010] FCAFC 111.

[12] Judgment at [12], [18].

[13] Judgment at [24].

[14] Judgment at [27] and [34].

[15] Judgment at [31].

[16] Judgment at [26].

[17] Judgment at [33].

[18] Judgment at [30].

[19] Judgment at [33].

[20] Judgment at [35].

[21] Judgment at [37].

[22] Judgment at [2].

[23] Judgment at [19] and [37] citing Vakauta v Kelly (1989) 167 CLR 568.

The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.

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Odette Gourley

Partner. Sydney
+61 2 9210 6066