Jerry Leung and Seung Chan Rhee

Where a judge makes adverse credibility findings against a witness in the liability stage of a trial and that same witness is required to give evidence at the relief stage, is that judge required to recuse themselves on account of apprehended bias? On 16 October 2025, the High Court will consider this important question when it hears the appeal in SunshineLoans Pty Ltd v ASIC (Case No B23/2025). This post argues that disqualification should not always follow. We consider what was said at first instance and on appeal and note that a constitutional dimension to apprehended bias may have been overlooked. Procedural fairness is a defining characteristic of Ch III courts, from which the subsidiary rule against apprehended bias is derived. This post argues that the rule against apprehended bias is not an absolute rule, and departures are permissible where they are reasonably necessary for protecting a compelling public interest – an evaluative exercise going beyond the four corners of the fair-minded lay observer test.