Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Barakat v Goritsas (No 2) [2012] NSWCA 36 Hearing dates: 1 March 2012 Decision date: 09 March 2012 Before: Basten JA at 1; Young JA at 69; Sackville AJA at 70 Decision: (1) Appeal dismissed. (2) Applicants to pay the respondents' costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: EVIDENCE - appeal - application to adduce evidence to supplement transcript - discussion of Vakauta v Kelly (1988) 13 NSWLR 502 - whether court should receive evidence pursuant to Supreme Court Act 1970 (NSW), s 75A(7) - whether court should exercise discretion to reject admissible evidence tendered for the first time on appeal PROCEDURE - civil - refusal to disqualify for apprehended bias - whether appellate court or court exercising supervisory jurisdiction should consider judgment of the court below on recusal application - whether exchanges between counsel and judge demonstrate that a fair-minded lay observer might hold the opinion that the judge might not determine issues fairly WORDS AND PHRASES - "apprehension of bias" Legislation Cited: Evidence Act 1995 (NSW), ss 16, 129 Supreme Court Act 1970 (NSW), s 75A Supreme Court Rules 1970 (NSW), Pt 55 Cases Cited: British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; 242 CLR 283 Builders Licensing Board v Mahoney (1986) 5 NSWLR 96 Ebner v Official Trustee [2000] HCA 63; 205 CLR 337 Goktas v Government Insurance Office of NSW (1993) 31 NSWLR 684 Government Insurance Office of NSW v Fredrichberg (1967) 87 WN (Part 1) (NSW) 122 Government Insurance Office of NSW v Fredrichberg [1968] HCA 54; 118 CLR 403 Johnson v Johnson [2000] HCA 48; 201 CLR 488 Kirby v Centro (No2) (2008) 172 FCR 376 Michael Wilson & Partners v Nicholls [2011] HCA 48; 86 ALJR 14 Nicholls v Michael Wilson & Partners [2010] NSWCA 222 Nickelseekers Ltd v Vance [1985] 1 Qd R 266 Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN (Part 1) (NSW) 136 RPS v The Queen [2000] HCA 3; 199 CLR 620 Vakauta v Kelly (1988) 13 NSWLR 502 Vakauta v Kelly [1989] HCA 44; 167 CLR 568 Webb v The Queen [1994] HCA 30; 181 CLR 41 Category: Principal judgment Parties: Tony Barakat, Russell Walter Keddie and Scott John Roulstone - Applicants Maria Goritsas - First Respondent Basil Goritsas - Second Respondent Stephen Paul Firth - Third Respondent Representation: Barristers: C C Branson QC/M Castle - Applicants R R Stitt QC/G J O'Mahoney - Respondents Solicitors: Verekers Lawyers - Applicants Firths - The Compensation Lawyers - Respondents File Number(s): CA 2012/41427 Decision under appeal Jurisdiction: 9111 Citation: Goritsas & Ors v Barakat & Ors [2012] NSWSC 36 Date of Decision: 2012-02-03 00:00:00 Before: Adams J File Number(s): SC 2011/370116 HEADNOTE [This headnote is not to be read as part of the judgment] The applicants were at the relevant times members of a firm of lawyers that acted for numerous persons in respect of personal injuries claims. The first and second respondents were former clients of the firm. The third respondent is the solicitor for the first and second respondents and other former clients of the firm. The respondents brought proceedings in the Common Law Division to injunct the applicants from contacting former clients. On 24 November 2011 Adams J made an order preventing the applicants from "contacting, approaching or in any way communicating or attempting to communicate with" any of their former clients in respect of whom the third respondent was instructed to act. One of the former clients was Mr Xi Li. He instructed the third respondent to act for him on 30 November 2011. The respondents alleged that one of the applicants drew a cheque on the firm's account and arranged for it to be delivered to Mr Li after Mr Li gave instructions to the third respondent. This conduct became the subject of a charge of contempt on the basis that it could constitute a communication with Mr Li, contrary to the order of 24 November 2011. Interlocutory steps in the proceedings, including the contempt proceedings, were heard by the trial judge in November and December 2011. As a result of the manner in which the trial judge conducted himself on certain of those days, the applicants made an application on 15 December 2011 for the trial judge to recuse himself on the basis of apprehended bias. On 6 February 2012, the trial judge dismissed the application. The applicants sought leave to appeal to this Court from the order dismissing the recusal application. In the course of the hearing in this Court, the applicants sought leave to adduce evidence supplementing the transcript of the proceedings before the trial judge. The issues for determination on appeal were: (i) whether this Court should allow the applicants to adduce evidence to supplement the transcript of the proceedings before the trial judge, and (ii) whether the trial judge erred in dismissing the recusal application. The Court held (per Basten JA, Young JA and Sackville AJA agreeing), granting leave to appeal and dismissing the appeal: In relation to (i) 1. While the Court has a power under Supreme Court Act 1970 (NSW), s 75A(7), to receive evidence not presented in the court below, the Court has a discretion to reject admissible evidence tendered for the first time on appeal. In this case the Court should exercise this discretion to reject the evidence because: (a) the use of coarse language was, in all the circumstances, of such limited relevance as to render it immaterial, (b) if the language alleged had been used, it was treated by the applicants as immaterial before the trial judge, (c) the failure to object in a timely fashion to the omission of material statements from the transcript means that the possibility of a contemporaneous agreement as to the words used was lost, and (d) the evidence purports to rely on memory, in circumstances where there was no suggestion that the words actually used, if used, would not have been sound-recorded in the same manner as occurred on 12 December 2011. Nor is there any explanation as to why the sound recording was not obtained and checked: [30]-[31] Government Insurance Office of NSW v Fredrichberg [1968] HCA 54; 118 CLR 403; Fredrichberg v Government Insurance Office of NSW (1967) 87 WN (Part 1) (NSW) 122; Vakauta v Kelly (1988) 13 NSWLR 502; Builders Licensing Board v Mahoney (1986) 5 NSWLR 96 considered; RPS v The Queen [2000] HCA 3; 199 CLR 620; Nickelseekers Ltd v Vance [1985] 1 Qd R 266; Goktas v Government Insurance Office of NSW (1993) 31 NSWLR 684 referred to. In relation to (ii) 2. The fair-minded lay observer must be taken to have heard the whole of the exchanges between counsel and the bench on the relevant days, with some understanding of what was appropriate conduct for both counsel and the court and what was not. The fair-minded lay observer is unlikely to apprehend bias against one party merely because the trial judge describes the behaviour of counsel for that party as disgraceful or tendentious, unless the observer would consider such epithets inapt to the extent of being unreasonable and indicative of an inability to bring an impartial mind to bear on the issues in dispute: [13] 3. An apprehension of bias, in the sense of an apprehension of prejudgment, does not mean an apprehension that the case will be determined adversely to the interests of the complaining party. It means a reasonable apprehension that the trial judge has formed a fixed view, to which it may be expected that he or she will adhere, regardless of the evidence or the submissions made by the complaining party: [39] 4. Although final reasons on the substantive issues cannot be relied on to remove an apprehension of bias which was otherwise established, consideration can be given to the judgment on the recusal application: [57] Nicholls v Michael Wilson & Partners [2010] NSWCA 222; 243 FLR 177; Michael Wilson & Partners v Nicholls [2011] HCA 48; 86 ALJR 14; British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; 242 CLR 283 considered; Johnson v Johnson [2000] HCA 48; 201 CLR 488 referred to. Judgment 1BASTEN JA : The applicants, Mr Tony Barakat, Mr Russell Keddie and Mr Scott Roulstone are (or were at the relevant times) members of a firm known as "Keddies Lawyers", which acted for numerous persons in respect of personal injury damages claims. They are now defendants in multiple proceedings brought by former clients seeking to recover amounts allegedly overpaid by way of costs. The third respondent, Mr Stephen Firth, is a legal practitioner acting for many of the former clients. 2An issue appears to have arisen in a number of cases in which it has been alleged that the applicants, or their agents, approached former clients, otherwise than through their current solicitors, seeking to settle the claims brought against the applicants. Two particular former clients, Maria and Basil Goritsas, brought proceedings in the Common Law Division to injunct the applicants from contacting former clients. Mr Firth is their solicitor. Maria and Basil Goritsas and Mr Firth are respondents to the present application. 3On 24 November 2011 Adams J made a restraining order, by consent, preventing the applicants from "contacting, approaching or in any way communicating or attempting to communicate with" any of their former clients in respect of whom Mr Firth was instructed to act. One of the former clients was Mr Xi Li. He had not, as at 24 November, instructed Mr Firth to act for him, but did so on 30 November 2011. It appears that, prior to giving instructions to Mr Firth, there had been communications on behalf of the applicants with Mr Xi Li, seeking to settle his claim for recovery of fees overpaid to the applicants. It is alleged that after he gave instructions to Mr Firth, one of the applicants, Mr Roulstone, drew a cheque on an account in the name of the applicants and arranged for the cheque to be delivered to Mr Xi Li. That conduct became the subject of a charge of contempt, the details of which will be referred to below. 4The proceedings, including the contempt proceedings, were the subject of hearings before Adams J on 22, 24 and 30 November and 1, 6, 7, 12 and 16 December 2011. As a result of the manner in which the trial judge conducted himself on certain of those days, the applicants made a recusal application on 15 December 2011 seeking to have him disqualify himself from further hearing any aspect of the proceedings on the basis of apprehended bias. That motion was supported by an affidavit of the solicitor for the applicants, Mr Robert Tassell, who annexed transcripts for five days between 22 November and 7 December 2011 (not including 30 November). 5On 3 February 2012, his Honour dismissed the application, publishing reasons on 6 February: Goritsas v Barakat [2012] NSWSC 36. The matter comes before this Court by way of an application for leave to appeal, in substance, if not in form, from the refusal of the trial judge to disqualify himself. 6For the reasons set out below, there should be a grant of leave to appeal, but the appeal should be dismissed with costs. Relevant legal principles 7The test to be applied in determining whether a judicial officer is disqualified because of a reasonable apprehension of bias involves two elements. First, it identifies a substantive standard, albeit one requiring an evaluative judgment, and secondly, and somewhat imprecisely, the characteristics of the person who is to make the judgment. Thus it is necessary to ask "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": Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 86 ALJR 14 at [31]. 8As Finkelstein J has remarked, the test for determining whether there is a reasonable apprehension of bias is not necessarily easy to apply: Kirby v Centro Properties Ltd (No2 ) [2008] FCA 1657; 172 FCR 376 at [17] . That is in part because it is expressed at a high level of generality. As Deane J has explained, there are numerous differing circumstances which can fall within the ambit of possible bias, identified by reference to "at least four distinct, though sometimes overlapping, main categories": Webb v The Queen [1994] HCA 30; 181 CLR 41 at 74. In the present case, the conduct said to give rise to the reasonable apprehension of bias involved statements made in the course of interlocutory hearings of the proceedings. The claim was thus one of apprehended prejudgment. Importantly, it is the fair-minded lay observer's assessment of the capability of the judge to determine the matter according to law, on the basis of the evidence admitted at the relevant hearing and after hearing submissions from the parties, which is to be assessed, rather than the actual state of mind of the judge either when the impugned conduct occurs or at the later time when the trial is listed: Michael Wilson & Partners at [33]. 9It is has been said that the test involves a two step process. Thus, in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [8], Gleeson CJ, McHugh, Gummow and Hayne JJ stated: "Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits." 10In Ebner , there were two cases before the Court in each of which it was said that the trial judge was disqualified by reason of a shareholding in, either a party to the proceedings or, in the case of Mrs Ebner, a person with an interest in the outcome of the proceedings. A similar principle applies in circumstances where the conduct of the trial judge is said to give rise to an apprehension of bias, because "the bare assertion that the judge appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision-making": Michael Wilson & Partners at [63]. 11These comments illustrate the risk which can arise if the term "prejudgment" is used imprecisely. Properly used, it must refer to the apparent formation of a view on the part of the trial judge in respect of an issue which will (or may) need to be determined at the trial. Adapting the "central and determinative question" identified by the plurality in Michael Wilson & Partners, at [68], it is necessary to ask, "might what was done in connection with [the interlocutory] applications reasonably cause a fair-minded lay observer to apprehend that the judge might not bring an impartial mind to the resolution of a question for decision at the trial?" 12It is, accordingly, incumbent upon the party seeking recusal to identify the issues which will need to be determined, the conduct which gives rise to the apprehension and the logical connection between the conduct and the issues. There was a tendency in the applicants' submissions to gesture rather too sweepingly towards statements made by the judge expressing frustration with the applicants or, more usually, their counsel, without seeking to articulate the relevant reasoning by which the fair-minded lay observer would attribute a level of prejudgment warranting recusal. 13For example, significant reliance was placed upon language used by the judge in the course of exchanges with senior counsel for the applicants which were said to reflect scepticism and later disdain for the applicants' case. Those submissions, however, did not squarely engage with the critical issue. The fair-minded lay observer must be taken to have heard the whole of the exchanges between counsel and the bench on the relevant days, with some understanding of what was appropriate conduct for both counsel and the court and what was not. The fair-minded lay observer is unlikely to apprehend bias against one party merely because the trial judge describes the behaviour of counsel for that party as disgraceful or tendentious, unless the observer would consider such epithets inapt to the extent of being unreasonable and indicative of an inability to bring an impartial mind to bear on the issues in dispute. For example, to describe as "tendentious" a submission which did not come to grips with the issues which has been identified, or needed to be identified might be seen as reasonable, particularly if counsel had been given more than one opportunity to address the issue. To describe the labelling of a submission by counsel as "tendentious" as "a very serious accusation" might itself fall into the characterisation it sought to dismiss: applicants' written submissions at par 80. That is because the complaint failed to identify in what way the "accusation" was not reasonable, given the context in which it was used. 14It is necessary, rather, to commence by identifying the subject matter of the contempt proceeding, which his Honour listed for hearing before himself, and any conduct which might demonstrate a prejudgment of the issues to be determined in that proceeding. (1) Statement of charge - issues arising 15A document headed "Amended Statement of Charge" filed on 13 December 2011 had four parts. The first was the statement of the charge itself, which was followed, in separate sections by paragraphs headed as follows: A. Background facts B. Factual particulars of the contempt C. Evidence relied upon in support of charge. 16The Statement of Charge was as follows: "On 1 December 2011 at Sydney in the State of New South Wales Mr Scott Roulstone, drew cheque number 103 on his own behalf and on behalf of the other defendants, with their knowledge and consent, on their account at the Commonwealth Bank [xxx] branch being number [xxx] in the name of 'Russell and Roulstone and Barakat' in the sum of $80,000.00 in favour of Mr Xi Li, which cheque was drawn and handed over on behalf of all three Defendants, with their knowledge and consent, in an attempt to compromise by settlement certain proceedings brought against the Defendants in the District Court of New South Wales being matter number 2010/344874 by the said Xi Li in breach of the undertaking given by the defendants to the Supreme Court of New South Wales on 22 November 2011 and in breach of the permanent injunction ordered by the Supreme Court of New South Wales on 24 November 2011." 17The terms of the charge require reference to the injunction ordered, by consent, on 24 November 2011. Those were set out under the heading "Background facts", although the terms of the actual undertaking are not set out. It is sufficient for present purposes to refer to the order of 24 November 2011: "That the defendants be restrained from, either by themselves or by the their servants or agents, at any time contacting, approaching or in any way communicating or attempting to communicate with any of their former clients or any of the former clients of Keddies the Insurance Law Specialists Pty Ltd in respect of whom the third plaintiff [Firth] has served an authority to transfer the file or any other person or persons acting on behalf of such former clients (other than any solicitor acting on behalf of such former clients on the record) who have provided instructions to Firths The Compensation Lawyers to act on their behalf in respect of the subject matter of those instructions." (Emphasis added.) 18On one view, the issue to be determined in the contempt proceedings is quite constrained. It is whether the drawing and handing over of a cheque to Mr Xi Li constituted a breach of the injunction. On another view, it might be necessary for the judge to determine a number of factual issues, including the status of certain intermediaries said to be involved in the conduct and the knowledge of their principals. In the section headed "Factual Particulars of the Contempt", it is alleged that Mr Xi Li had a claim against Keddies which was to be heard in the District Court on 1 and 2 December 2011, in respect of which he had retained Firths and that the amount claimed was of the order of $100,000 on account of overcharged fees. The factual particulars continue: "7. ... According to a document titled 'Fee Ledger', an internal Keddies costing document, Naushad Husaini had worked extensively on Mr Li's file. Throughout the time Keddies had represented Mr Li he was assisted by a Chinese interpreter who worked with Keddies, Helena Li (also called Hong Mai Li). 8. In 1999 Helena was retained by Keddies to act as an interpreter in respect of all matters where Keddies' clients required a Mandarin interpreter. ... 9. On 29 November 2011, Mr Li returned from an overseas trip and found, recorded on his answering machine, a large number of phone messages by Helena. He telephoned Helena back that night. A conversation followed in relation to Mr Li's claim against the defendants. 10. On 30 November Mr Li received a telephone call from Helena requesting that he attend the office of a firm of solicitors, Margiotta Solicitors and Attorneys. 11. On the same day, Mr Li attended the office of Margiotta and spoke to Naushad Husaini who, having previously been an employee of the defendants and represented Mr Li in the matter which was the subject of his claim against the defendants, was now an employee of Margiotta. 12. Mr Husaini obtained an authority terminating Firth's retainer and appointing Margiotta as Mr Li's solicitor, and informed Mr Li that Keddies would pay him $80,000 clear in the hand. 13. Pursuant to that authority and proposed settlement, a cheque in favour of Mr Li for $80,000 was drawn on 1 December 2011 on the account of the three defendants ('the cheque'). On the cheque, the account of three defendants was referred to as 'Russell, Barakat and Roulstone' and the cheque was signed by Scott Roulstone. 14. On 1 December 2011 Helena attended the home of Mr Li and delivered to him the cheque. She also provided Mr Li with a photocopy of the cheque which Mr Li was asked to sign so as to confirm receipt of the cheque from Keddies. That signature was provided." 19There may be an issue as to how far the matters identified as particulars fall within the statement of charge, although nothing was identified in that respect in the course of the recusal hearing, either in this Court, or, as it appears, below. 20In the course of argument in this Court, senior counsel for the applicants referred to a submission dated 7 December 2011, being an outline of submissions for the plaintiff in the contempt proceedings, which set out the relevant factual matters and legal issues and, in the event of a conviction, made submissions on the appropriate penalty. On 12 December 2011 the applicants filed submissions in response contending that the statement of charges was "insufficient and defective": at par 36. They also objected to reliance on the 17 affidavits filed in the proceedings as "inapposite" and as not curing the defects in the charge. Although limited to identifying the nature of the proceedings (as criminal) and the defects in the nature of the statement of the charge, it should not be inferred that those were the only matters likely to arise for determination in the contempt proceedings. The submissions do, however, suggest additional issues not addressed by the respondents. 21Broadly speaking, the issues which will need to be determined in the contempt proceedings are likely to involve: (a) various legal questions both as to the sufficiency of the charge and the proper construction of the order said to have been breached; (b) factual issues, including the role played by Ms Helena Li and Mr Husaini in respect of the attempted settlement of Mr Xi Li's case, and (c) in the event of a conviction, the determination of the appropriate penalty having regard to the conduct proved. (2) Conduct complained of (a) motion to rely on further evidence 22The affidavit evidence filed by the applicants in support of the motion for disqualification included the various transcripts identified above. In respect of the last relevant day, 12 December 2011, Mr Tassell swore an affidavit annexing the transcript which he obtained first by obtaining the sound recording which he had then arranged to be transcribed by a contractor to the Reporting Services Branch. He stated that he had received the typed transcript on 23 December and had read and checked it for accuracy and spelling which, with the exception of two names, he found to be accurate: affidavit, 5 January 2012. 23On 17 February 2012 the applicants filed a notice of motion in this Court seeking leave to rely upon further evidence set out in an affidavit of Mr Tassell, sworn on that day. The further evidence involved an exchange which took place on 22 November 2011 between senior counsel then appearing for the applicants and the judge in relation to the timing of steps to be taken by the applicants by way of defence to the principal proceedings. While seeking what was, in effect, an adjournment to allow his clients to respond, counsel stated that he did not "have any instructions to offer anything in the meantime": Tcpt, 22/11/2011, p 3(20). He then identified a "complicating factor" which was that there were District Court proceedings which had commenced that day: Tcpt, p 4(10). The judge then said, "you can do two things at the same time". The further evidence proposed to be tendered was to the same effect as that last statement, though in somewhat coarser language, which the judge then said he wished to withdraw. 24The Court rejected the further evidence, indicating that it would state its reasons later. Those reasons follow. 25There is doubt as to the propriety of proffering such evidence. In Government Insurance Office of NSW v Fredrichberg [1968] HCA 54; 118 CLR 403 the High Court reviewed a judgment of this Court setting aside a jury verdict in favour of a defendant in a personal injury claim. The plaintiff was the widow of the deceased passenger of a car involved in a fatal accident. The GIO was the insurer of the driver. No error was found in the summing up of the trial judge to the jury, but a complaint was made that counsel for the plaintiff had been unduly restricted in the submissions he had been permitted to put to the jury. That complaint depended upon directions given by the trial judge in the course of the hearing, which were not recorded in the transcript. An allegation to that effect was put in argument before the Court of Appeal and appeared to have been influential in leading the Court to overturning the verdict. The High Court reversed that judgment. Barwick CJ and Owen J expressly adverted to this material, holding that it did not support the proposition that any inappropriate limitation had been placed on counsel. However, they both expressed strong doubts as to the propriety of the course which had been taken, in allowing such material to be put before the appeal court. Kitto, Menzies and Windeyer JJ agreed generally with their judgments. 26Fredrichberg had involved a degree of informality in this Court, the additional information being identified orally by counsel in the course of the hearing. Nothing much appears to have turned on that material in this Court, because it was the trial judge's view of the law which not only limited submissions made by counsel, but also the way that the case was left to the jury: Fredrichberg v Government Insurance Office of NSW (1967) 87 WN (Part 1) (NSW) 122 (Herron CJ, Sugerman and Holmes JJA agreeing). In the High Court the material was put on by way of affidavit, and was admitted in order to allow the Court to understand that upon which the Supreme Court relied in overturning the verdict: 118 CLR at 410. Pragmatic considerations appear to have influenced the remarks in the High Court, the recollections of counsel being inconsistent with the approach of the trial judge, identified in reasons refusing to direct a verdict for the defendant: at 423 (Owen J). 27In Vakauta v Kelly (1988) 13 NSWLR 502, McHugh JA referred to passages in Fredrichberg in the High Court and also to Builders Licensing Board v Mahoney (1986) 5 NSWLR 96: the latter appeared to endorse reliance on affidavits of persons at a hearing as evidence of what was said during the course of the proceedings. McHugh JA continued at 524E: "I would venture to doubt whether it expresses the rule which best serves the administration of justice. But at all events when what is in issue is what a trial judge in a court of record has said, an appellate court should not permit evidence to supplement the transcript unless both parties agree as to what was said. Where sound recording equipment exists, no problems concerning supplementing the transcript should arise." 28Nothing was said to the contrary in the High Court: Vakauta v Kelly [1989] HCA 44; 167 CLR 568. Although Vakauta was a case involving an allegation of reasonable apprehension of bias, Fredrichberg was not. It was a case of procedural unfairness: compare RPS v The Queen [2000] HCA 3; 199 CLR 620 at [11] (Gaudron ACJ, Gummow, Kirby and Hayne JJ). 29The comments in these cases appear to be confined to words used in the course of the impugned proceedings. Thus, evidence may properly be adduced with respect to circumstances or conduct not the subject of a hearing: Nickelseekers Ltd v Vance [1985] 1 Qd R 266 (McPherson J, Andrews SPJ and Campbell J agreeing). It has also been accepted in this Court that whilst the approach of McHugh JA in Vakauta is generally accepted, it does not preclude, in appropriate circumstances, a challenge based on matters which were not recorded, particularly in circumstances where that may have been at the direction of the trial judge: Goktas v Government Insurance Office of NSW (1993) 31 NSWLR 684 at 686 (Kirby P) and 698-699 (Cripps JA, Meagher JA agreeing). 30The remarks of McHugh JA in Vakauta also appear to depend on pragmatic considerations. There was no reference to the test in respect of further evidence set out in s 75A(7) and (8) of the Supreme Court Act 1970 (NSW). As a practical matter, it is no doubt important to have any dispute in relation to the transcript resolved promptly, usually in the course of the trial. However the statement by McHugh JA that, in the case of a dispute as to what was said, "the version of the judge must be conclusive" is based on the proposition that the judge cannot and should not give evidence or be cross-examined: 13 NSWLR at 524G. That consideration might now require reference to ss 16 and 129 of the Evidence Act 1995 (NSW). Further, it cannot be the case that the version proposed by the judge will always be conclusive, without immunising some aspects of judicial conduct from the exercise of this Court's supervisory jurisdiction. That might also raise a question as to whether a different principle applied in relation to an apprehension of bias in proceedings before a judge of the Supreme Court, as compared with other courts designated as superior courts of record, inferior courts of record and other tribunals. 31The ruling in the present case may be resolved without determining the scope of the principle identified in Vakauta . As junior counsel for the applicants correctly submitted, the Court has power to receive evidence not presented in the court below, pursuant to s 75A(7) of the Supreme Court Act . Further, on the assumption that the appeal is not from the ruling on the recusal application itself, it may be accepted that the requirement of "special grounds" to justify receipt of evidence after "a trial or hearing on the merits" will not apply. The power of the Court to receive further evidence is, nevertheless, subject to a discretion to reject admissible evidence tendered for the first time on appeal. That discretion justified the rejection of evidence proffered in the present case. 32First, the use of coarse language was, in all the circumstances, of such limited relevance as to render it immaterial. Secondly, if the language alleged had been used, it was treated by the applicants as immaterial before the trial judge. Thirdly, the failure to object in a timely fashion to the omission of material statements from the transcript means that the possibility of a contemporaneous agreement as to the words used was lost. Fourthly, the evidence purports to rely on memory, in circumstances where there was no suggestion that the words actually used, if used, would not have been sound-recorded in the same manner as occurred on 12 December. Nor is there any explanation as to why the sound recording was not obtained and checked, as occurred with the sound recording of 12 December, which the applicants themselves arranged to be transcribed. 33These considerations, cumulatively, warranted the rejection of the proffered evidence. (b) comment on issues 34In the course of argument, it was put to Mr Branson SC, senior counsel for the applicants, that the high point of his case on prejudgment involved comments made by the trial judge in the course of the hearing on 12 December 2011. Although he did not embrace the singling out of that passage, he did not identify any other passage which provided a stronger basis for his submissions. Rather, he suggested that the applicants' case depended upon the cumulative effect of statements made during the course of several days of intermittent interlocutory hearings, as a series of peaks along a mountain range. 35It is nevertheless convenient to commence with the transcript of the hearing on 12 December, no higher peak being identified. The context involved discussion of a notice to produce in respect of documents relating to Mr Xi Li: Tcpt, p 5. That was relevant not only to the contempt charge, but also to the substantive proceedings. When senior counsel for the respondents suggested that the hearing was not to deal with the contempt, the trial judge responded (Tcpt, p 6(35)): "No, but I am dealing with what to do with the contempt, and when to set it down .... So the first question is whether the charge is sufficient." 36In the course of analysing the statement of charge and the particulars, the judge noted that it might be necessary for the respondents to "cull" their affidavits as "a great deal of what's in those affidavits gives some background material, but it's not strictly relevant": Tcpt, p 10(30). After further discussion with senior counsel for the respondents as to the basis of the charges, his Honour suggested that, as far as Mr Roulstone was concerned, "I think it is fair to say that the facts fall within a very small compass": Tcpt, p 11(38). Senior counsel for the applicants asserted that there was a broader "factual matrix": Tcpt, p 11(45). There was then discussion as to the likely evidence in respect of how the cheque in favour of Mr Xi Li came to be drawn. The judge questioned counsel as to how long was required to answer the charges: Tcpt, p 12(27). Counsel was reticent as to how long was required, but asserted it was not a matter of "intrinsic urgency": Tcpt, p 12(30) and (40). The following exchanges then ensued (Tcpt, p 12(45)): "HIS HONOUR: Let's go back a step. You outlined to me a defence that this cheque was paid pursuant to a contractual obligation, that had been created prior to the injunction. BRANSON: In effect yes, your Honour. HIS HONOUR: What you seek to do is to prove that such a contract existed? BRANSON: That will be part of our case, your Honour, correct. ... HIS HONOUR: Accepting that at its highest that this was done pursuant to a contract already in existence, I am having difficulty in seeing how that is a defence to - how that makes this not a breach of my order. BRANSON: It does depend on the true and proper interpretation of your Honour's orders, and that's something that we are looking into. I need to preserve that but that's my provisional view about it, that the drawing of a cheque is not necessarily a contravention of the wording of the injunction. HIS HONOUR: No, it's the payment of the cheque which is crucial. BRANSON: Sorry, the payment, but that is something I've considered but briefly, your Honour. HIS HONOUR: The payment of a cheque must amount to the communicating with Mr Xi Li, because he has ... signed the receipt for the cheque. BRANSON: I understand your Honour has that view. It's been pressed several times by Mr Stitt, and I have to take refuge in this, that I have not devoted meticulous attention to how this charge that was presented to us on Thursday last week should be answered. I have not spoken [to] material witnesses, your Honour. I merely wish to reserve my position, if I may. HIS HONOUR: Mr Branson, I must say that I think your submission is somewhat tendentious. BRANSON: I don't particularly appreciate that, your Honour. I've been at the Bar for the 36 years. I'm not used to being accused from the Bench of being tendentious. I have made a responsible submission to your Honour. I've explained that I have not given this my meticulous attention. HIS HONOUR: Please don't raise your voice. ... HIS HONOUR: ... Nevertheless, it's a matter for you to consider what matters you give priority to, but I should have thought this is a matter of simplicity - that is whether the payment of a cheque and the obtaining of a receipt for that cheque for the purpose of [settling?] a case involved contacting, approaching or in any way communicating or attempting to communicate with Mr Xi Li. And I, as I sit here, without the benefit it is true of your submission, find it extremely difficult to understand how the payment of a cheque and the obtaining of a receipt for it, and the deduction of the money which I think has [been?] established from the bank account could otherwise be a communication or a contacting with Mr Xi Li was the recipient of that cheque, and the signatory of the receipt. So of course you will have an opportunity to seek to explain my orders in a way that would mean you client was not in breach of it, but I do not think it is a complicated matter. BRANSON: I've heard that, your Honour. HIS HONOUR: The question then is how much time do you need?" 37The emphasised words "could otherwise be", it was suggested without demur from counsel, should probably be understood as "could be otherwise than". That would be consistent with the judge expressing at least a preliminary view as to the critical question concerning the construction of the order in the context of the conduct alleged to contravene it. 38Three points may be made in relation to this passage. First, the context of the discussion was an attempt to extract from Mr Branson an estimate of how long he needed to prepare the applicants' defence to the charge. Whether or not his submissions were accurately described as "somewhat tendentious", there is no doubt that counsel was unwilling to give any estimate of the time required and that his Honour was expressing a degree of frustration with that situation. It should be inferred that the fair-minded observer would assume that the judge was entitled to such an estimate for the purposes of case management and was entitled to be frustrated by the failure of senior counsel to provide such assistance. 39Secondly, the trial judge sought to explore with counsel the scope of a possible hearing, by reference to the issues which might arise. His view as to the central issue being one relating to the construction of the order was accepted by Mr Branson: Tcpt, p 13(15). His Honour undoubtedly expressed a preliminary view that the factual circumstances, which appeared not to be in dispute, constituted a contravention of the order. It was clearly intended as a preliminary view, since it was expressed to be "without the benefit ... of your submission" and, explicitly, in circumstances where the applicants would have an opportunity to make submissions in respect of the matter. 40No authority is needed for the proposition that an apprehension of bias, in the sense of an apprehension of prejudgment, does not mean an apprehension that the case will be determined adversely to the interests of the complaining party. It means a reasonable apprehension that the trial judge has formed a fixed view, to which it may be expected that he or she will adhere, regardless of the evidence or the submissions made by the complaining party. To the extent that the trial judge expressed a firm view, the context demonstrates that it was intended to focus counsel's mind on the limited scope of the issue, in an attempt to obtain an estimate of the time required to prepare a defence. Far from suggesting that any submissions to the contrary might be to no avail, the judge was seeking to ensure that counsel had reasonable time to prepare such submissions, in circumstances where, the fair-minded observer might properly assume, he was entitled to such an estimate for the purposes of case management. Taken in isolation, that passage does not satisfy the established test for conduct creating a reasonable apprehension of bias. (c) cumulative effect of disparaging remarks 41A different conclusion may be available on the basis of the cumulative effect of remarks made by the judge over the course of the several occasions on which the matter was listed for interlocutory proceedings. 42In assessing the material identified in the written submissions for the applicants, it is necessary to bear in mind that the only relevant interlocutory order, adverse to the interests of the applicants, was the injunction, which was made by consent. Further, that order, inevitably, pre-dated the conduct which was said to constitute a breach of the order. It is the alleged breach which is the subject of the contempt charge. It follows that the trial judge has not yet been required to rule on any aspect of the evidence, assess the credibility of any witness nor consider submissions on any question of law, relating to that matter: Michael Wilson & Partners at [72]. Indeed, the only evidence heard, to which the Court was not taken, related to the adequacy of responses to subpoenas and notices to produce documents. 43Taking the significant matters relied on chronologically, the applicants first referred to statements made by the judge after reading a series of affidavits filed for the respondents. His Honour stated (Tcpt, 1/12/11, p 3(36)): "This is a very troubling matter. It is not isolated. It is not satisfactorily explained by the mere apparent absence of the hand of the defendants." 44It was submitted that the judge's "concern and indignation" about the content of the affidavits "coloured his view thereafter" and led him to depart from a position of neutrality in relation to Mr Xi Li's matter. 45The language used does not readily suggest the kind of departure from neutrality that is relevant to the test of reasonable apprehension of bias. His Honour was, on occasion, given to using colourful language. Not long after the passage relied upon, the judge advised counsel for the respondents not to be "offensive": Tcpt, p 6(11). Further, and significantly, after the statement of the contempt charge, in a passage reproduced above at [36], the trial judge expressed a view that the affidavits which he had earlier read were "not strictly relevant": Tcpt, 12/12/11, p 10(30). Many trials would be effectively unmanageable if the judge could not, from time to time, read and rule upon the admissibility of prejudicial material which, if rejected, would need to be disregarded in reaching a judgment. The fact that the judge had read affidavits containing such material, at a particular time and for a particular purpose, is, by itself, incapable of raising a reasonable apprehension of bias. 46The second matter relied upon by the applicants involved the cross-examination of Mr Margiotta and Mr Husaini, both solicitors, in respect of compliance with a number of subpoenas. Little weight was placed on that aspect of the matter and a reading of the transcript fails to reveal any serious concern. 47Thirdly, there was complaint that, on 6 December 2011, the judge acceded to an application on the part of senior counsel for the respondents to direct the applicants to attend the following afternoon, to provide "a full and candid explanation" of conduct which was said to constitute a breach of the injunction. That course may have been available as a matter of law and practice, in accordance with the procedure followed in Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN (Part 1) (NSW) 136. In any event, when the applicants objected to the procedure, the judge acceded to their request that a charge of contempt should be laid in accordance with Pt 55 of the Supreme Court Rules 1970 (NSW). 48Fourthly, the last complaint appears to be linked to the complaint that the judge treated the allegation of contempt as one of inherent urgency. The applicants submitted that "once the injunctive order was made on 24 November 2011, the proceedings no longer had any legitimate claim to urgency but were nevertheless treated by the judge as urgent": written submissions, par 53(h). In this regard, the judge was entirely correct and the submission must be rejected. A contempt charge involving legal practitioners is properly treated as a matter for expeditious determination, and has been so treated in this Court by the early listing of the appeal and delivery of this judgment. Accordingly, neither the initial procedures in respect of the allegation of contempt, nor the attempt to have the matter dealt with expeditiously, constitute conduct capable of raising a reasonable apprehension of bias. 49Fifthly, there remains for consideration the complaint that the judge exhibited "an animus" against senior counsel for the applicants, variously describing Mr Branson's conduct as "disgraceful", his submissions as "tendentious" and "grossly improper" and as providing a "very much less than candid characterisation of what occurred": written submissions, par 53(bb). 50The reference to submissions as "tendentious" has been noted above, in their immediate context. The connotations of that term may be a matter for debate, as may the justification for counsel's reaction to its use by the judge. However, read in context, as it appears on the transcript, the comment cannot fairly be said to demonstrate "animus", in the sense of personal animosity or hostility to senior counsel. Much less can it be said to manifest to a fair-minded observer an inability or unwillingness to deal with the contempt charge on its merits. 51The next significant disagreement occurred on 6 December 2011 when the inadequacy of compliance with subpoenas was before the Court and senior counsel for the respondents sought to file in Court two fresh affidavits. Senior counsel for the applicants sought time to consider the affidavits, which he had not previously seen. The judge indicated that he was not dealing with the affidavits but with the return on the subpoenas: Tcpt, 06/12/11, p 2(40). Counsel returned to the question of the affidavits seeking an opportunity to read them and speak to his instructing solicitor and clients. The exchange continued: "HIS HONOUR: I did not say you do not have it, what I am saying is I do not see why, when you have a subpoena that requires particular documents, you simply do not produce the documents. BRANSON: There is a new allegation apparently .... I don't even know what your Honour's ruling on Friday was, we were not here[.] ... HIS HONOUR: Whatever I ruled on Friday does not affect the present matter. The present matter as I see it is simply - please do not interrupt me. BRANSON: Your Honour need not raise your voice, I am concerned at the lack of procedural fairness - HIS HONOUR: Sit down. BRANSON: No I won't. Is your Honour going to look at my procedural fairness now? HIS HONOUR: You are being impudent. BRANSON: Are you going to give me an opportunity to - HIS HONOUR: Mr Branson, leave my court. BRANSON: I won't. HIS HONOUR: Get the officer please. BRANSON: Your Honour has gone far too far. HIS HONOUR: I have never had a situation where counsel has ... interrupted me and when I asked him not to gives me a slogan. Of course I afford you procedural fairness Mr Branson, I am simply stating the issue as I see it and I will not be over talked. Now you apologise or leave[.] BRANSON: I want to know if I am able to read the affidavits before Mr Stitt advances the matter any further please[.] HIS HONOUR: When you apologise Mr Branson[.] BRANSON: Your Honour how can I apologise when I make a submission as senior counsel that I wish to seek instructions about these affidavits? Your Honour just says oh well, I will deal with it anyway? HIS HONOUR: I have not said that. BRANSON: You did, with respect. HIS HONOUR: I said I wanted an answer to a simple question, I am not going to engage in an argument with you. There is a relationship between Bench and Bar, hopefully of mutual respect, but it requires counsel not to interrupt and not to berate a judge and I will not be berated and you apologise or - BRANSON: I will not apologise. I seek procedural fairness, which is all I asked you for, and the transcript will bear that out if you take the action as you are proposing to do. I am representing my clients who are solicitors, they are serious allegations but you have not indicated with respect that I should be able to read these affidavits now, take instructions from my solicitor so as the case can proceed this morning and apparently deal with it adequately. That is my application. HIS HONOUR: The question was not whether you would have procedural fairness, the question was whether you would interrupt me and when you refused to refrain from that conduct, and insisted in over-talking me, whether you should apologise. That is the question, either you apologise for your conduct or you leave my Court? BRANSON: For interrupting you? HIS HONOUR: Yes. BRANSON: I am very sorry for interrupting you. May I renew my application and read these affidavits. HIS HONOUR: I will consider it in due course. BRANSON: Thank you your Honour, that is very generous of you. HIS HONOUR: Nor do I appreciate your irony Mr Branson. Your conduct is disgraceful. [His Honour called for and was awaiting the appearance of the Sheriff's officer before continuing with the hearing of the matter.] ... [Sheriff's officer appeared in Court and his Honour directed him to sit in the back of the Court and wait.]" 52The transcript thereafter suggests that calm was restored and the subpoenas were dealt with, by other parties. Mr Branson was not involved until some little time later when he presented three volumes of material to the court, which appear in part to have been a response to a notice to produce documents and indicated a willingness to produce further documents, if directed, in relation to Mr Xi Li: Tcpt, pp 13-14. 53The exchange was, at best, unseemly. To what extent there was interruption or over-talking, is not entirely clear from the transcript. What is clear, however, is that the judge and Mr Branson were at cross-purposes. The judge sought a response in relation to the adequacy of the return on a subpoena (or possibly a notice to produce) addressed to Mr Branson's clients; Mr Branson sought an opportunity to peruse and seek instructions in respect of two affidavits filed in court. It may not have been clear to him at that stage whether those affidavits related to documents, or other matters. However, his failure to engage with the question asked by the trial judge may be explained in part by a passage which appeared later in the transcript (p 37(28)), in the following terms: "BRANSON: ... I had no comprehension prior to 10.05 today that we were going to be arguing the notices to produce. There is some correspondence between Mr Firth and my instructing solicitor yesterday that left the matter in abeyance. Our position shortly stated was: well we need some time and we are focusing on the matters that extend from 1 December and we prepared the judge's books. I came prepared to deal with those issues. I did not advert in any way to those notices to produce that were called on for production [at?] 10 am and have raised issues about recent time and so on." 54Had that explanation been given immediately the issue was raised, the unfortunate exchange set out above might not have occurred. 55As is commonly said in respect of the advantages of a trial judge in assessing the oral testimony of witnesses, the written transcript provides an incomplete record of an oral hearing. Impressions cannot readily be gained as to demeanour, tone of voice and other matters, such as gestures. Such inferences as are drawn from the transcript are likely to be pure speculation and may be affected by the court's knowledge of the individuals involved. Some, but not all, of those disadvantages may be alleviated by the tender of any sound recording which was made of the hearing. Additional assistance might well be provided by a closed-circuit television recording of the hearing. These benefits were unavailable to this Court. As a result, there are serious deficiencies in the ability of the Court to assess how the fair-minded observer would have responded to the series of exchanges set out above, which he or she would presumably be assumed to have observed first-hand. 56A question arises in that context as to whether it is appropriate or permissible to have regard to the judgment of 6 February 2012, rejecting the recusal application. Neither party submitted that such reference was inappropriate. 57In the course of this Court's reasons in Nicholls v Michael Wilson & Partners [2010] NSWCA 222; 243 FLR 177 it was noted that the final judgment on the substantive issues "did not remove the pre-existing apprehension of bias, as being unfounded": at [92]. After reaching the conclusion that there was a reasonable apprehension of bias, the reasons also noted that "the judgments given by the primary judge following the trial tend to enhance, rather than diminish, the apprehension that would otherwise arise": at [94]. The High Court held that this Court was wrong to take into account the reasons published by the trial judge "after the trial": at [68]. 58Although it must be accepted that final reasons dealing with the substantive issues cannot be relied on to remove an apprehension of bias which was otherwise established, consideration can be given to the judgment on the recusal application. That too was addressed by this Court in Nicholls , as providing an "absence of persuasive reasons ... tending to remove the basis of the apprehension of bias": at [93(i)]. This approach was consistent with that accepted by the majority (as well as the minority) in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; 242 CLR 283. In Laurie, referring to Johnson v Johnson [2000] HCA 48; 201 CLR 488 at [14], the judgment of Heydon, Kiefel and Bell JJ noted, at [137]: "It is clear, as Tobias JA acknowledged, that later statements made by a trial judge may be taken into account in determining whether there exists a reasonable apprehension of pre-judgment. A later statement may explain an earlier statement which might otherwise suggest that the judge has made up his or her mind about a matter. However, recourse to the later statement is not for the purpose of ascertaining whether the judge has expressed a willingness or confidence in his or her ability to maintain an open mind. It is assumed that a judge who is conscious of having formed so clear a view that the judge is unlikely to be persuaded from it would not sit to hear the later case. Ex hypothesi, a court reviewing the decision of a judge to sit to hear a case in circumstances where apprehended pre-judgment is alleged, but not actual bias, will be reviewing the decision of a judge who is confident of his or her ability to decide the case impartially." 59The joint judgment continued at [138]: "In the event that the discovery judgment gives rise to a reasonable apprehension of pre-judgment, his Honour's subsequent characterisation of the cross-examination as having been no more than a peripheral attack could not serve to allay that apprehension. The recusal judgment adds nothing of moment to the material on which the hypothetical observer's assessment is to be made. Tobias JA was correct in the circumstances of this case to exclude it from consideration." 60In this case, the judgment of Adams J of 6 February 2012, after referring to the passage in the transcript of 6 December set out above, up to the words "[t]he present matter as I see it ...", proceeded as follows, at [27]: "As I recall what then happened (which is not accurately or completely recorded in the transcript) I was then interrupted by Mr Branson in a raised voice saying words to the effect, 'Will you give me procedural fairness?' I attempted to repeat what I said but Mr Branson again interrupted me asking the same question in an even louder and more peremptory tone. I asked him not to interrupt me, raising my voice somewhat so that he would hear me. He simply said very loudly, 'Your Honour need not raise your voice, I am concerned at the lack of procedural fairness -' and I then told him to sit down. He said in an angry voice, 'No I won't', adding (recorded somewhat incorrectly in the transcript) 'Will your Honour give me procedural fairness now'. I said, 'You are being impudent'. He repeated again in a raised and angry tone, 'Is your Honour going to give me an opportunity...' at which time I interrupted and told him to leave the Court. He said angrily, 'I won't' and sat down." 61His Honour then set out the further passage in the transcript up to the reference to disgraceful conduct and commented that the apology and comment about generosity "were made in a loud, angry and ironic tone". The judgment further noted that Mr Branson had provided an unequivocal apology for his conduct by letter after the court adjourned: at [28]. 62Neither party suggested that the description set out above from the judgment on the recusal application inaccurately described what happened in court on the occasion recounted. It provides some limited additional explanation of the circumstances, including as to Mr Branson's tone of voice. However, beyond confirming the impression which might be gained from the transcript, it did not take the matter much further. Consistently with the statements in Laurie , the reasons which his Honour then gave for rejecting that exchange as a basis for disqualification merely affirmed the judge's own view, reflected in his conclusion that he should continue to sit, that the exchange would not raise a reasonable apprehension as to his ability to determine the case before him in accordance with the law and the evidence, accepting that such a judgment must be made from the perspective of the fair-minded lay observer. 63It is likely that judgments on recusal applications should, in most situations, be addressed with caution on an appeal or application for judicial review. Although a recusal application does not involve a judge deciding a matter in which she or he has an interest (there being no legal "interest" in sitting or not sitting on a particular case) the judge is nevertheless called upon to rule on the possible effect of his or her conduct on a fair-minded lay observer. That assessment may, at least subconsciously, be influenced by the judge's assessment of his or her own ability to determine the case impartially. Further, a challenge to the position or conduct of a judge may have the tendency to exacerbate, or appear to exacerbate, any level of conflict between the judge and a party or counsel appearing in the case. In most circumstances, that consideration will militate in favour of brief reasons, accepting that brevity may need to be tempered by the need to demonstrate that the various matters raised have been taken into account. 64It is because of the particular role placed upon a judge in determining a recusal application that it will frequently be appropriate to grant leave to appeal, assuming the challenge is not patently untenable and where a long and costly trial would be avoided if the decision below were incorrect: Michael Wilson & Partners at [86]. Conclusion 65This not being a case in which it could be said that the applicants' complaints were patently without merit, it is appropriate that there be a grant of leave to appeal. The leave application and the appeal having been listed concurrently, the appeal must be determined. 66Neither the expression of views in respect of the issues relevant to the contempt charge, nor the exchanges between counsel for the applicants and the judge during the course of interlocutory hearings, taken individually or cumulatively, are sufficient to demonstrate that a fair-minded lay observer might hold the opinion that the judge might not determine fairly the issues that arise on the contempt charge, on the basis of the evidence and arguments as to the facts and law presented to him. 67In those circumstances, it is not necessary to address the potential logical connection between factors which may have the potential to constitute elements of apprehended prejudgment and the issues to be determined. 68The appeal must be dismissed. The applicants must pay the respondents' costs in this Court. 69YOUNG JA : I agree with Basten JA. 70SACKVILLE AJA : I agree with Basten JA. ********** Amendments 28 August 2012 - Correcting typographical errors Amended paragraphs: [7] and [10] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 August 2012