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.

David Hume

In SDCV v Director-General of Security [2022] HCA 22, the High Court held, 4:3, that it was constitutionally-permissible for the Federal Court to have regard to 'closed' information, which was known to the Court and the Government’s lawyers, and was the subject of 'closed' submissions involving the judges and the Government’s lawyers but was not disclosed to SDCV or his lawyers. The key issue in the case was whether the statutory scheme established by the Administrative Appeals Tribunal Act 1975 (Cth) – which permitted the Federal Court to rely on closed information, while prohibiting it from being disclosed to SDCV – required or permitted the Federal Court to act in a procedurally unfair way.

In this post, I first address the factual and procedural background (which are interesting in and of themselves); secondly, I address some key aspects of the majority’s reasoning; and, thirdly, I make some observations on the reasoning and outcome.