FEDERAL COURT OF AUSTRALIA Reckitt Benckiser Healthcare (UK) Ltd v GlaxoSmithKline Australia Pty Ltd (No 3) [2013] FCA 1043 Citation: Reckitt Benckiser Healthcare (UK) Ltd v GlaxoSmithKline Australia Pty Ltd (No 3) [2013] FCA 1043 Parties: RECKITT BENCKISER HEALTHCARE (UK) LIMITED and RECKITT BENCKISER (AUSTRALIA) PTY LIMITED ABN 17 003 2274 655 v GLAXOSMITHKLINE AUSTRALIA PTY LTD ABN 47 100 162 481 File number: NSD 734 of 2013 Judge: RARES J Date of judgment: 27 September 2013 Catchwords: PRACTICE AND PROCEDURE – apprehended bias – principles regarding disqualification. Cases cited: Almeida v Opportunity Equity Partners Ltd [2006] UKPC 44 applied Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 referred to Bienstein v Bienstein (2003) 195 ALR 225 applied Cabcharge Australia Limited v Australian Competition and Consumer Commission [2010] FCAFC 111 applied Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 applied Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 applied GlaxoSmithKline Australia Ltd v Reckitt Benckiser Healthcare (UK) Ltd [2013] FCAFC 102 referred to Johnson v Johnson (2000) 201 CLR 488 at 492 [11] applied Livesey v The New South Wales Bar Association (1983) 151 CLR 288 applied The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 applied Reckitt Benckiser Healthcare (UK) Limited v GlaxoSmithKline Australia Pty Limited [2013] FCA 583 referred to Reckitt Benckiser Healthcare (UK) Limited v GlaxoSmithKline Australia Limited (No 2) [2013] FCA 736 referred to Re JRL; Ex parte CJL (1986) 161 CLR 342 applied Re Keeley: Ex parte Ansett Transport Industries (1990) 94 ALR 1 applied R v Watson; Ex parte Armstrong (1976) 136 CLR 248 applied Smits v Roach (2006) 227 CLR 423 referred to Vakauta v Kelly (1989) 167 CLR 568 applied Webb v The Queen (1994) 181 CLR 41 applied Michael Wilson & Partners v Nicholls (2011) 244 CLR 427 applied Dates of hearing: 26 & 27 September 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 38 Counsel for the Applicants: Ms K Howard SC with Mr J S Cook Solicitor for the Applicants: Corrs Chambers Westgarth Counsel for the Respondent: Mr R Webb SC Solicitor for the Respondent: Norton Rose Fulbright IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 734 of 2013 BETWEEN: RECKITT BENCKISER HEALTHCARE (UK) LIMITED First Applicant RECKITT BENCKISER (AUSTRALIA) PTY LIMITED ABN 17 003 2274 655 Second Applicant AND: GLAXOSMITHKLINE AUSTRALIA PTY LTD ABN 47 100 162 481 Respondent JUDGE: RARES J DATE OF ORDER: 27 SEPTEMBER 2013 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The interlocutory application filed on 20 September 2013 be dismissed. 2. The respondent pay the applicants' costs of that interlocutory application. 3. The applicants pay the respondent's costs of the interlocutory application heard on 17 July 2013. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 734 of 2013 BETWEEN: RECKITT BENCKISER HEALTHCARE (UK) LIMITED First Applicant RECKITT BENCKISER (AUSTRALIA) PTY LIMITED ABN 17 003 2274 655 Second Applicant AND: GLAXOSMITHKLINE AUSTRALIA PTY LTD ABN 47 100 162 481 Respondent JUDGE: RARES J DATE: 27 SEPTEMBER 2013 PLACE: SYDNEY REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 GlaxoSmithKline Australia Pty Limited seeks that I recuse myself from being the docket judge for these proceedings. It contends that a reasonable apprehension of bias arose out of remarks that I made in the course of a directions hearing on 14 June 2013 and the hearing on 17 July 2013 of the application for a further interlocutory injunction made by Reckitt Benckiser Healthcare (UK) Limited, and Reckitt Benckiser Australia Pty Limited, (collectively Reckitt). I granted a second interlocutory injunction (the second injunction) and gave ex tempore reasons on 17 July 2013: Reckitt Benckiser Healthcare (UK) Limited v GlaxoSmithKline Australia Limited (No 2) [2013] FCA 736 (reasons 2). 2 Glaxo applied for leave to appeal on 22 July 2013 from the second injunction and the application was referred to a Full Court for hearing, which heard full argument on 19 August 2013. In the meantime, on 9 August 2013, after the application for leave to appeal had been listed to be heard with full argument before the Full Court, counsel for the parties saw me in chambers. Senior counsel for Glaxo informed me then of his instructions to seek that I recuse myself on the basis that Glaxo now presses. He handed me a schedule of transcript references on which Glaxo relied for that purpose. He did this very properly to allow me the opportunity to consider the question before any application were made in open court. I suggested that the application might be unnecessary, depending on how the Full Court dealt with Glaxo's proposed appeal, and that Glaxo could inform me after the Full Court's decision whether it proposed to pursue its application. 3 On 2 September 2013, the Full Court allowed Glaxo's appeal, discharged the second injunction (i.e that granted on 17 July 2013) and ordered that the proceedings be listed before me for directions as soon as practicable: GlaxoSmithKline Australia Ltd v Reckitt Benckiser Healthcare (UK) Ltd [2013] FCAFC 102. Following the Full Court's decision allowing the appeal counsel again saw me in chambers. Glaxo indicated that it still wished that I recuse myself and provided me an outline of its argument in support. After that my associate emailed the parties conveying that I had considered the matters put by Glaxo and had noted that it had made no application to the Full Court that the proceedings not be remitted to me as the docket judge. The email said that at present I did not consider that the proceedings should be removed from my docket, but that did not preclude Glaxo from making any application that it wished to make. As a result Glaxo filed the present interlocutory application. Glaxo's argument 4 The background of the dispute can be found in my reasons in Reckitt Benckiser Healthcare (UK) Limited v GlaxoSmithKline Australia Pty Limited [2013] FCA 583 (reasons 1), reasons 2 and the Full Court's reasons. I will not repeat that here. Glaxo expressly submitted that it did not contend that reasons 2 were affected by the appearance of bias at the 14 June 2013 directions hearing, or the hearing of Reckitt's interlocutory application for a second injunction on 17 July 2013. (I will refer collectively for brevity to both those hearings as the application or the hearing in these reasons.) Rather, Glaxo argued that what I had said during the hearing on those occasions gave an appearance of prejudgment within the principle identified in Johnson v Johnson (2000) 201 CLR 488 at 492 [11] and Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345 [6]-[8], and that that appearance of prejudgment affected my ability to hear the trial. It put that a hypothetical observer with knowledge of the conduct of the hearings in respect of the alternative syringe, the subject of reasons 2 and the second interlocutory injunction, might apprehend that two matters had been prejudged that will arise for determination at the final hearing, namely, first, Mr Hunter's evidence on the alternative syringe, and secondly, the proper construction of claim 1 of the patent. 5 Glaxo elaborated its submissions by reference to the transcript in respect of each of those two matters. First, it contended that it would rely on the whole of Mr Hunter's evidence at the final hearing and that in reasons 2 his evidence on the alternative syringe had been rejected. Glaxo argued that he had opined that the word "barrel" had a particular meaning among people skilled in the art which supported its case that the diameter referred to in claim 1 was uniform along the whole length of the barrel. 6 First, Glaxo pointed to the following two passages in the transcript that dealt with Mr Hunter's reliance on the particular Australian AS 1094/1993 Medical Equipment, Single Use Syringes (Sterile) for General Medical Use Standard (the standard) as the starting point for a person skilled in the art reading the patent to understand the patent's use of the terms "barrel" and "nozzle", as I explained in reasons 2 at [11]-[15]. The two passages were: (1) "HIS HONOUR: And where is the textual support for all that in the patent? I can't see a word of it in the specification, but you can point it out to me. MR WEBB: Well, your Honour, it's – no, your Honour. There's no textural support for it, but your Honour – it's with HIS HONOUR: Well, the ordinary and natural meaning of it is completely to the contrary. I don't see that as being a limitation at all in the patent. MR WEBB: Well, your Honour HIS HONOUR: So, the skilled addressee is going to read this and say well, actually, the broad and general terms of this in ordinary English should be read down so you can get round the very invention. Being able to get something out without leaking medicine by some sort of idea that there's got to be a particular construction of the barrel of the plunger, and a particular thing that's referrable to a standard that's not mentioned, and the – I mean, I'd be reading something into this that's nobody could read in sensibly as being a defining integer of the claim." and (2) "HIS HONOUR: Well, if I look at page 82, Mr Webb, 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." (I have added the italicised words above to those on which Glaxo relied. The word "man" in bold is I think a mistranscription for the word "noun" or "word" in the context of the discussion that concerned the use of "barrel" in claim 1.) 7 Glaxo argued that those and other portions of the transcript to which it referred, when taken together with the whole of the lengthy debate at the hearing about Mr Hunter's evidence, revealed that the fair minded observer might perceive a reasonable apprehension that I had prejudged the question of the weight or credibility of his evidence. 8 Secondly, Glaxo contended that at the directions hearing I had expressed an initial strong reaction against its construction of claim 1 and that the debate at the hearing of the interlocutory injunction on 17 July 2013 indicated that I had adhered to that view. Glaxo argued that there was nothing in reasons 2 to qualify or detract from either of its grounds in support of its claim of the apprehension of bias. 9 Thirdly, Glaxo argued that my construction of claim 1 in reasons 2, on the prima facie case basis, was influenced by remarks I had made in the course of argument that the alternative syringe was an attempt by it to avoid the effects of the existing interlocutory injunction that I made on the basis of reasons 1. That argument can be immediately rejected, since Glaxo told the Full Court that the alternative syringe was a "design around" the product that was the subject of the earlier injunction: Glaxo [2013] FCAFC 102 at [11]. Principles 10 The apprehension of bias, in the form of prejudgment, disqualifies a judge from hearing or continuing to hear a Court proceeding. The test is whether a fair-minded lay observer might reasonably apprehend the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is asked to decide: Johnson 201 CLR at 492 [11] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. The test is objective and requires the decision-maker to assume that the observer is reasonable and: "… the person being observed is a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial." 11 The reasonableness of any apprehension must be considered in the context of ordinary judicial practice, including the exigencies of modern litigation, such as active case management and intervention by a judge in the conduct of cases by, among other means, the expression of tentative views in exchanges with counsel, that while those views "… reflect a certain tendency of mind [they] are not, on that account alone, to be taken to indicate prejudgment": Johnson 201 CLR at 493 [12]-[13]. Indeed, as Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said in Johnson 201 CLR 493-494 [13]-[14]: "Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them …. No doubt some statements, or some behaviour, may produce an ineradicable apprehension of prejudgment. On other occasions, however, a preliminary impression created by what is said or done may be altered by a later statement. It depends upon the circumstances of the particular case. The hypothetical observer is no more entitled to make snap judgments than the person under observation." (emphasis added) 12 The test involves, first, ascertaining whether there is a real, and not remote, possibility that the judge might not decide a case on its legal and factual merits, and secondly, the articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits, that is, impartially: Ebner 205 CLR at 345 [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ. However, a fair and unprejudiced mind "… is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it": The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 554 per Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ. 13 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: Cabcharge Australia Limited v Australian Competition and Consumer Commission [2010] FCAFC 111 at [25]-[29] per Kenny, Tracey and Middleton JJ. 14 A judge's expression of tentative views during the course of argument as to matters on which the parties are permitted to address full argument does not manifest any partiality or bias, or amount to a predetermination of the issues: Bienstein v Bienstein (2003) 195 ALR 225 at 234 [34] per McHugh, Kirby and Callinan JJ citing Re Keeley: Ex parte Ansett Transport Industries (1990) 94 ALR 1, where Dawson J, at 9, noted that the mere fact, that there, the judge had persistently expressed views on a line of inquiry that he had raised during argument that had been met with equally persistent resistance, did not give rise to an appearance of bias. That was because, his Honour said, the judge's views were tentative and not concluded, and he had allowed the party complaining a full opportunity to make any submissions it wished about the matters the judge had sought to explore. 15 In R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 264 Barwick CJ, Gibbs, Stephen and Mason JJ said: "The remarks on which the wife's submission were founded were made during argument in an interlocutory application. One must be careful not to exaggerate the importance of remarks of that kind. During the course of argument a judge will often follow the common, and sometimes necessary, course of formulating propositions for the purpose of enabling their correctness to be tested, and as a general rule anything that a judge says in the course of argument will be merely tentative and exploratory." (emphasis added) 16 And in Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 582 [4] Gummow ACJ, in agreeing with what Callinan J and Kirby and Crennan JJ had said on the issue of apprehension of bias, adopted the conclusion stated by Lord Walker of Gestingthorpe for the Privy Council in Almeida v Opportunity Equity Partners Ltd [2006] UKPC 44 at [103], namely: "[T]he judge's interventions were motivated not by partiality but by the wish to understand the evidence (which was often obscure and inconsequential) and to push on the trial process." Kirby and Crennan JJ expressly adopted what had been said in Bienstein 195 ALR at 234 [34] (at 229 CLR at 630 [112] and see also per Callinan J who discussed the application of the principles in relation to the Federal Court's docket system at 634-636 [174]-[180]). 17 The fair-minded lay observer is a person who is informed: Webb v The Queen (1994) 181 CLR 41 at 51-52, 55 per Mason CJ and McHugh J, 57 per Brennan J agreeing on this point, 87-88 per Toohey J and see too at 76 per Deane J; Concrete 229 CLR at 609-610 [110]-[112], 635-636 [177], 582 [4] and 612 [120]. Importantly, a judge's duty is to hear and determine the litigation before him or her. In Livesey v The New South Wales Bar Association (1983) 151 CLR 288 at 294 Mason, Murphy, Brennan, Deane and Dawson JJ said that: "… it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court." 18 That was echoed in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 by Mason J, who also said that: "There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he or she is likely to decide issues in a particular case adversely to one of the parties." He said that this did not mean that the judge would "… approach the issues in the particular case otherwise than with an impartial and unprejudiced mind in the sense in which that expression was used in the authorities or that the judge's previous decisions provided an acceptable basis for inferring that there is a reasonable apprehension that the judge will approach the issues in this way." Rather, Mason J said that the judge will be disqualified only if it is firmly established that there is a reasonable apprehension of bias by reason of prejudgment. 19 A party can also waive its right to object to a judge continuing to sit or deciding a case on the ground of apprehension of bias: Vakauta v Kelly (1989) 167 CLR 568. There (at 572), Brennan, Deane and Gaudron JJ noted that where comments were made by a judge were likely to convey to a reasonable and intelligent lay observer an impression of bias, a party who had legal representation was not entitled to stand by until the contents of the final judgment were known and then, if those contents proved unpalatable, to attack the judgment on the ground that, by reason of the earlier comments, there had been a failure to observe the requirement of the appearance of impartial judgment. They said that by standing by the party waived the right subsequently to object. It is obvious why that was so, their Honours said, because: "… if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her." See also: Smits v Roach (2006) 227 CLR 423 at 439-442 [43]-[48] per Gleeson CJ, Heydon and Crennan JJ, with whom on this point Gummow and Hayne JJ observed at 445 [61], in obiter that they would have agreed had it been necessary to decide the issue of waiver. 20 In Michael Wilson & Partners v Nicholls (2011) 244 CLR 427 at 451 [84], Gummow ACJ, Hayne, Crennan and Bell JJ observed that when a judge refused to disqualify himself or herself after an application had been made that he or she had given the appearance of bias, the question of whether a party's failure to seek leave to appeal against that refusal amounted to a waiver would depend upon consideration of whether the failure to seek that leave was reasonable. That question, they said: "… would require examination of all relevant circumstances. Ordinarily those would include the stage the proceedings had reached when the disqualification application was made and refused and the consequences that would follow from leaving appellate determination of the issue of disqualification until after trial." 21 Importantly, their Honours overturned earlier decisions that had suggested that there was no right of a party to seek immediate appellate review of a judge's refusal to recuse himself or herself until after final judgment. Consideration 22 I applied the principles stated in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at 81-84 [65]-[72] per Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed, in approaching the assessment of whether Reckitt had established a prima facie case for the purposes of the grant of the second interlocutory injunction that I ordered in reasons 2. Those were that first, the plaintiff or applicant had to make out a prima facie case in the sense that if the evidence remained as it is there is a probability that at the trial of the action the plaintiff or applicant will be held entitled to relief, and secondly, the Court had then to consider the inconvenience or injury which the plaintiff or applicant would be likely to suffer if an application were refused and whether this outweighed, or was outweighed by the injury which the defendant or respondent would suffer if an injunction were granted. 23 It is apparent that, ordinarily, a judge who makes such a determination does not express a concluded view. Rather the judge assesses whether, if the evidence given at the hearing of the interlocutory application remained the same at the trial there was a probability (as opposed to a stronger view) that at the trial, the applicant would be entitled to relief. In reasons 2, I said at [15]: "In my opinion, for the purposes of ascertaining whether Reckitt has made out a sufficiently strong prima facie case in the sense I explained in my earlier reasons (Reckitt [2013] FCA 583 at [43]), the standard on which Mr Hunter relied is of little weight. It expressly stated in cl 1 that it specified requirements for sterilised single-use Luer-fitting syringes of nominal capacities between 1 and 50 mls individually packed with or without detachable needles for generally medical use. And, the standard also stated that it did not apply to aspiration or irrigation syringes or syringes used in conjunction with syringe pumps. While an addressee skilled in the art would look towards what a useful design for a syringe would be in, among other places, standards, the standard to which Mr Hunter referred clearly did not purport to be exhaustive. There is no reference whatsoever in the patent to a syringe needing to be, or be understood, in terms of that standard or any particular standard. While Mr Hunter's evidence is of some weight, I am not persuaded that his view is sufficiently strong to displace the view of Mr Tiller that there is no assistance to be gained from the standard." (emphasis added) 24 It is evident that in those reasons I expressed the view that I had then formed about the weight that I would give Mr Hunter's evidence on the prima facie case standard. As I said, I accorded it some weight, but did not find it sufficiently strong to displace Mr Tiller's opinion in relation to what assistance could be obtained from the standard concerning the meaning of the word "barrel" in those circumstances. I then went on to explain why I had arrived at the construction of claim 1 that accepted, in substance, Reckitt's argument. The Full Court's reversal of my assessment of the strength of Reckitt's prima facie case was again arrived at on the principles for assessing a prima facie case for interlocutory relief. 25 The fair-minded lay observer would understand that if I, as a professional judge, were required to form a view at a final hearing as to the proper construction of claim 1, it would be incumbent on me to have regard to the Full Court's expression of its opinion and to the fuller and much more complete opportunity of the parties to develop arguments as to the proper construction of the claims in the patent. That would occur having regard to all of the evidence and issues, which would range far more broadly than the narrow confines of the claims and counterclaims on the arguments as to whether interlocutory relief should have been granted in respect of the alternative syringe. 26 The Full Court did not consider Mr Hunter's evidence as to the meaning of the word "barrel" in claim 1 in arriving at its view that I had erred on the construction of that claim. Rather, their Honours held that the strength of that construction was diminished because it involved adding words to the claim, and that such an addition could be viewed on a final hearing as an impermissible gloss on its wording. They considered that, on a prima facie case test, Glaxo's construction was substantively stronger. They did so by reference to the wording of the claim, the description in the specification and the figures in the patent: [2013] FCAFC 102 at [63]-[64]. Their Honours did not suggest any view of Mr Hunter's evidence, other than by the inference that it was not used by them as a basis for their prima facie construction of claim 1. 27 In my opinion, a fair-minded observer, would not consider that I had predetermined, for the purposes of the trial that is to be heard in June 2014, the outcome of the arguments as to whether Mr Hunter's evidence was of assistance in resolving the construction of the patent, or, more particularly, the construction of claim 1, by a reference to how a skilled addressee would view it. I should add that I have not predetermined those issues. 28 Moreover, in articulating a reason why a judge should be disqualified on the apprehension of bias principle, the party so contending must demonstrate a logical connection between the matter and the feared deviation from the course of deciding the case on its merits. 29 I have great difficulty in understanding Glaxo's position that it does not suggest that either the decision to grant the second injunction at which I arrived in reasons 2, or those reasons, was affected by an apprehension of prejudgment or predetermination, yet remarks that I made in the course of argument before arriving at that decision might indicate to the fair-minded observer that, in respect of the final hearing, I might have predetermined my decision on either of the issues concerning Mr Hunter's evidence or construction of claim 1. That difficulty arises in circumstances where I have no idea what evidence will ultimately be called, what testing of that evidence will occur, and what the final arguments will be, refined no doubt as they will be out of the crucible of the interlocutory applications both before me and the Full Court, on all of the issues that were there canvassed, including the two about which Glaxo is concerned. 30 The case is still, I think, at a protean stage. I have certainly formed no final views or predeterminations of any issues. That, of course, may not be enough to satisfy the test of apprehension of bias, for it proceeds on the assumption that it is not that the judge is in fact biased, but that what he or she has said or done has provided a basis on which the fair-minded lay observer, who is informed of the matter in the way that I have described, might think that the judge might have formed such a preconception. 31 Here, there is no evidence that Mr Hunter will necessarily be called, although counsel has (and I accept) said he will be. There is no evidence that his evidence at the trial will be confined to what he said before, or that he will not be cross-examined. There is also no evidence whether Mr Tiller will not give further evidence one way or another, and that there will not be other witnesses whose evidence might bear on the meaning of the word "barrel" and either support or otherwise affect the views that might be arrived at by the tribunal of fact at a final hearing as to the assessment of Mr Hunter's evidence using the standard or some other means for identifying what the skilled addressee would understand terms in the patent to mean. 32 Moreover, Glaxo's argument was predicated on the proposition that nothing I said in reasons 2 affected the two matters on which it relied to give rise to the apprehension of bias. I do not understand how that argument can be put, given that in [15] in reasons 2, I accepted that Mr Hunter's evidence was of some weight but found it did not persuade me that his view was sufficiently strong to displace the view of Mr Tiller on the point at that stage of the proceedings and on the basis of the prima facie case test that I had to apply. 33 Secondly, the construction of claim 1 at which I arrived was again expressly predicated in reasons 2 on the prima facie case test. That construction was not accepted by the Full Court on the prima facie case test, which took a substantively different view as to the relative strengths of the parties' cases on construction. I, or any other judge who had to hear and determine the trial of this matter, would necessarily need to take into account the Full Court's reasoning, along with all of the arguments that will be put in the context of a fully contested trial at which there will be many other issues that will involve the exploration of the scope, content and construction of the patent and its claims in a variety of contexts that will no doubt inform, far better than an urgent interlocutory application, a judge in arriving at a final view as to whether Mr Hunter's evidence on the use of the standard or the construction of the word "barrel" in claim 1 of the patent should be accepted, and also how claim 1 itself should be construed. 34 The remarks which I made during the course of argument were intended to assist me in understanding and testing the propositions which the parties were putting to me as to how I should see the strengths and weaknesses of their cases in the course of my making the assessment I arrived at in reasons 2. As it turned out the Full Court has concluded that that assessment was incorrect, but that does not mean that I had determined to arrive at the decision until I had heard the full argument and absorbed it. The proceedings were urgent, they involved matters of considerable commercial importance, and were brought in the middle of the winter sales season, which was the peak season for the parties' competing products. Rightly or wrongly, I felt at the end of the argument that I was in a position to give the parties the commercial certainty of how I saw the case, on a prima facie case basis, at that time. 35 It was important for me during the argument to be able to test thoroughly matters which I did not feel I necessarily fully had understood or grasped to see whether there were issues which I was missing. While I may have expressed my questions propositionally and with some clarity, I was doing so for the purposes of testing, rather than predetermining how I would construe, on a prima facie basis, claim 1 in the patent and how I should understand and weigh Mr Hunter's evidence. Whatever happens at the trial will be an entirely new matter. Although there will have been some exploration of the issues, I assume that it will be on different, or more full argument and evidence. Conclusion 36 For these reasons I am not satisfied that anything I have said or done might give rise to a fair-minded, informed lay observer apprehending that I might not bring an unprejudiced and impartial mind to the determination of these proceedings at the final hearing. For those reasons I dismiss the application. Waiver 37 I should also add that even if I were wrong in relation to that view, I am comfortably satisfied that Glaxo has waived any right it had to object to my continuing to hear the case by failing to ask the Full Court to remit the matter to a judge other than myself. The Full Court's order was that the matter be remitted to me. Even if Glaxo had not anticipated that that order would be made, it could have asked the Full Court to review it. Its arguments as to my having given rise to the appearance of bias did not depend upon the outcome of the Full Court case at all. Those arguments were, as I have said, predicated on the basis that reasons 2 were not affected at all by the appearance of bias, but rather that it was what I had said earlier, during the course of the directions hearing and hearing of the interlocutory application, that had given rise to what was claimed to be an appearance that, if I were the trial judge, a fair-minded person might have concluded that I might have already decided the two issues in the case against Glaxo. On that basis, Glaxo should have asked the Full Court to have the proceedings remitted to another judge, so that, rather than taking time having me decide this application and, if it be the case that Glaxo is still concerned that I will try the case impartially and fairly or that a fair-minded person might think that I might not, taking a further application to the Full Court to have that matter determined. I do not need to decide the matter on the basis of waiver, although I am of opinion that Glaxo has waived its right to rely on the point. 38 For these reasons I am not satisfied that I should grant Glaxo's application. I dismiss its interlocutory application. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 14 October 2013