Thursday, 21 May 2015

Is Exablaze failing?

No sight nor sound of the 40G NIC from Exablaze.

Their own blog and Waters Technology reported back in 2013 that a 40G NIC was on the way.

See the old article here at

Turns out Exablaze can't seem to deliver on the promises (aka lies) they make. Now that their financial trading business has been shuttered, perhaps the tech business is not far away from the same fate?

Good riddance you'd have to say.


Wednesday, 20 May 2015

Self healing concrete - roads maybe?

I found this lime producing bacteria laced concrete quite thought provoking and inspiring for some reason. It makes me wonder about the economics of road building and if concrete may make a comeback.

Self healing concrete from Delft University of Technology and Henk Jonkers.

It's a finalist in the European Inventor Award 2015.

Bacteria that lies dormant in rock for 200 years and then does its work. Makes it hard to rule out life on Mars, doesn't it.

It raises questions about what is low tech and high tech. What is natural or organic and what is artificial?


Tuesday, 19 May 2015

Some interesting "white box" switches

Pica8, Inventec, Edge-Core and Quanta have all been pumping out various 10G, 40G, and now 100G white box switches. Generally Broadcom's Trident+, Trident II or Tomahawk ASICs at the core.

Out of the Open Network Install Environments (ONIE): Cumulus, Big Switch, and PicOS seem to be the more popular with Cumulus having more mindshare to me. That is a pretty fuzzy situation to me though. I'm not too sure who is winning in the ONIE space.
Edge-corE AS6701-32X with ONIE
40GbE Data Center Switch

Any how, here are some samplings via links to some of the current offerings:

Interesting alternative platforms to the usual suspects, especially when combined with alternative network operating systems. In that respect, I note some of the Quanta switches are listed as Ubuntu Compliant for their x86 Intel Rangely which has left me wondering about what that means exactly...

Anyhow, here is a pretty decent tutorial on the whitebox market from Big Switch Network's Rob Sherwood from ONUG last year if you wish to meander some more.

Network OS choices via ONIE seem more important than the hardware itself.


Update: I saw Chalon Duncan post a reference to the following article which explains what I was missing about Ubuntu on switch platforms:
Mystery, to me, solved.

Friday, 1 May 2015

The Hon Justice Michelle Gordon gets more press

Is Michelle Gordon the best the Coalition could do? The Australian, Professor James Allan, 1 May 2015
"The point is that you might have thought an Abbott government would want to make High Court appointments based on, you know, who will take a ­conservative approach to interpreting our Constitution. That sort of thing. Instead, after seeing their two High Court appointments thus far, I basically haven’t got a clue what our Attorney-General George Brandis and Prime Minister Tony Abbott are treating as core factors in deciding whom they appoint. The most recent was Michelle Gordon."
"Is identity politics the main game in town now?"
"It’s a joke that in 115 years there hasn’t been a single appointee from South Australia. Or Tasmania. If identity politics is now the only game in town, at least make it a woman from South Australia who just might have a few more federalist inclinations in her than those from the Sydney or Melbourne Bars. To repeat, a conservative government can do better..."
"Is she the best, or even “an obvious top five”, choice the Coalition could have made?"
"Now I happen to agree that being the spouse of the person you’re replacing ought not to rule you out. But it ought not to rule you in, either."
"Indeed, for the sake of appearances such incestuous-looking appointments ought to have to pass a higher hurdle than would apply to other candidates."
"In other words, to pick the wife of the retiring judge she has to be incontestably better than anyone else."

Poor judgment on the High Court, Australian Financial Review, Editorial 16 April 2015
"Justice Gordon ... insists ... [she] should be judged by the quality of [her] work. While there's much to be said for that, the latest instance is not reassuring for those who think that judges should not intrusively meddle in business arrangements struck by consenting adults. Justice Gordon handed down the original ruling that found the ANZ Bank guilty of "unconscionable" behaviour for simply enforcing a contractual arrangement that included a fee on credit card customers who failed to pay their debts on time. Her judgment displayed plenty of meticulous lawyering but precious little commonsense and was thankfully demolished last week by a full bench of the Federal Court."

"The American system of requiring presidential appointments to the Supreme Court to be confirmed by a Senate is clearly foreign to the Australian political model. But we struggle to fathom how a Liberal Attorney-General has elevated to the highest court in the land a judge who has made such a flawed anti-business ruling."
Australia needs a judicial appointments commission to prevent such cronyism from happening again:

The age of perception: a $20 trillion dollar per year opportunity

During the last two to three years, the world has changed.

Perception has been solved. Computers were bad at it. Now they are good at it.

The main culprit is the new generation of artificial neural nets branded as deep learning. Great leaps have been made in image, video, speech and text semantic analysis. The improvements have been stunning in a field used to steady incremental improvement. It has been, and continues to be, simply fantastic scientific drama.

What's the likely economic impact?

On 30 April 2015, PWC released a good whitepaper on STEM with support from the Centre of Policy Studies (CoPS) at Victoria University. CoPS rolled out their famous computable general equilibrium (CGE) modelling to support the economic considerations. As summarised by PWC, the key findings of the report included:

  • 44 per cent or 5.1 million current Australian jobs are at risk from digital disruption in 20 years
  • 75 per cent of the fast growing occupations require STEM skills
  • Changing 1 per cent of the workforce into STEM roles would add $57.4 billion to GDP
  • Top three occupations least at risk in the workforce of the future are doctors, nurses and teachers
  • The top three occupations at risk are accountants, cashiers and administration workers

Much of the report is about the probabilities of disruption to various occupations. Those probabilities were derived from a 17 September 2013 Oxford University paper, "The future of employment: how susceptible are jobs to computerisation" by Carl Frey and Michael Osborne. They reviewed 702 US occupations and found 47% of the total US employment at risk. Not too dissimilar to the 44% of Australia population at risk found by PWC/CoPS.

What does at risk mean? In their conclusion on page 44 Frey & Osborne say, "We refer to these as jobs at risk – i.e. jobs we expect could be automated relatively soon, perhaps over the next decade or two."  Frey and Osborne suggest we do the following to stay relevant, "For workers to win the
race, however, they will have to acquire creative and social skills."

PWC quote an impact of a benefit of some $57 billion being added to GDP for an increase of 1 percent in STEM roles for Australia. A one percent workforce increase is pretty conservative given Australia is over 30 percentage points down on Singapore STEM graduate output from their universities. I understand PWC's reluctance to headline the true scale as it is enormous and difficult to seem credible. It is a revolution on the scale of the industrial revolution.Luddites will be misunderstood again. Opposing the moon and tides is no real choice as you'll be naked when the tide goes out.

Let's meander through the numbers as applied to the Australian top automatable jobs. We'll then multiply by a population factor 14.6 (321M US to 22M Oz). I'll crudely use the Australian Average Weekly Earnings from the Australian Bureau of Statistics which is, um, less than ideal. Then for completeness we'll just scale to the world's population which would have more roles affected but at less value, but let's not allow another complete fudge to stop us. The scale is suggestive. 50% either way and the big numbers are still big. It is a revolution.
Employment categoryProbability of automationWorkers impacted$Billion
per year
Accounting clerks/bookkeepers97.5%263,34821.1
Checkout operators/cashiers96.9%128,74510.3
General office administration96.1%284,17122.7
Wood machinists93.4%31,0812.5
Financial and insurance93.1%128,42510.3
Farm, forestry and92.5%106,0178.5
Personal assistants and92.4%137,91711.0
Sales administration workers91.1%56,9644.6
Keyboard operators87.1%59,8524.8
Hospitality administration and85.5%248,86219.9
Sales assistants and85.2%698,78055.9
Real estate sales85.2%70,6735.7
Factory process workers84.6%52,6314.2
Fabrication trades workers84.3%90,0397.2
Clerical and office83.8%114,7109.2
Printing trades workers82.9%23,9301.9
Mobile plant operators82.8%127,29810.2
Food preparation assistants82.5%154,43812.4
Food process workers82.2%63,0725.0
Glaziers, plasterers and81.4%60,9774.9
Food trades workers80.7%173,63913.9
Automobile, bus and80.5%94,9467.6
Machine operators80.1%83,7576.7

Australian Total


US population multiplier

US Total


$4 trillion of effect per year for the USA. That is quite a sizeable disruptive opportunity. So, the guess is that at around 20-30% of GDP represented by such services will be disrupted by automation. World GDP in 2014 was around $77 trillion, so perhaps we may be looking at a $15 to $25 trillion per annum dollar disruption across the world. That is quite some blue sky opportunity. And risk. You'd better put your head down and be part of the revolution rather than a casualty.

No one likes the guillotine.

At the bottom of this post I've listed the job categories from the PWC report they claim will be less affected. Not quite sure why DBA is in there, but there you go. Debate away.

Personally I think this is going to happen much faster than Fey and Osborne thought (one or two decades) due to the current perception revolution. Let's meander through this revolution in science.

The Age of Perception

Computers have promised since Arthur Samuel's checker program in the 1950's to give us the Jetson age with household robots and cute metal dogs with wagging tails. Sixty years later we're still waiting. A major problem has simply been that computers cannot perceive. No sense from their senses. They have struggled to visually label objects, turn sound into text and never in a crowded room, nor have they been all that good at working out if a story on Reuters is good or bad for a company.

Five years ago they still couldn't do any of that acceptably well. Now they can. The dawn of the Age of Perception has passed and the Age of Perception has begun. Computers can perceive.
Atlas, platform for the DARPA challenge
from Boston Dynamics
which is now owned by Google.

In some cases human performance has been exceeded. Indeed, human level performance is under threat across the entire perception spectrum. Don't forget the perceptions we don't have, such as radar, ultrasonics, infra-red. It is not just wider fields and ranges. The practical harnessing of this powerful array of new perceptive powers has hardly begun.

Geoffrey HintonYann LeCun and Andrew Ng are three notable stars who survived and emerged from the second multi-year neural winter as part of a rapidly growing constellation. It's not just for the big firms. Hundreds of start-ups are scrambling to benefit. Robotic systems at last have the promise of very useful perception.

We're not talking about truly intelligent systems yet, but we will see seemingly intelligent systems thanks to the discovery of the new perceptive powers. I'm referring to useful semantic analysis from sensed data as perception. You have to be careful not to confuse perception, such as semantic classification of a video feed, with true higher level cognitive reasoning. Many tasks just need good perception and adequate heuristics.

You may have used a deep net in the last week and not noticed. The Android or Apple speech recognition on your phone are types of deep learning nets. This is not yet another promise of maybe in a few years we'll really crack it. The future is now. There is a tsunami of application potential building from this great tectonic rumble that is already affecting our lives.

The long awaited automation, or semi-automated, revolution is happening. It is not just about going from cheap floor vacuums to self-driving cars. Our newest children may never know what it is like to pick up the toys of their own children, wash dishes, clean rooms, iron clothes, weed the garden, or do perfunctory cooking.

So why has Google been snapping up robotic and deep learning companies?

Well, it is probably a $1 to $10 trillion dollar a year opportunity, just in the US. Maybe it's the $20 trillion dollar global opportunity. Maybe it's just the fight to stay relevant. Buggy whips indeed.

This is going to affect you and your family and the choices you need to make. Governments need to plan for the disruption. Societies' economic fabrics with be dissolved and rebuilt simultaneously by the invisible hand.

Fight or flight? Ignorance is flight. The choice is yours.



Note: PWC used computable general equilibrium (CGE) modelling to arrive at their conclusions but it still amounts to crazy arsed intelligent guessing at the end of the day.

I also liked the list of jobs that are unlikely to to be automated. It is hard to agree with all of the probabilities above and below, but it is interesting and a fun debate. Read the Oxford paper. You'd better get yourself and your kids one of these jobs:

Employment category Probability of automation
Medical practitioners 0.4%
Education, health and welfare managers 0.7%
Midwives and nurses 0.9%
Advertising, Public Relations and
sales managers 1.5%
Database and systems administrators, and
ICT Security Specialists 3.0%
Education professionals 3.3%
ICT managers 3.5%
Tertiary-level teachers 3.6%
School teachers 4.0%
Engineering professionals 4.2%
Legal professionals 6.5%
Social and welfare workers 6.8%
Accommodation and hospitality managers 7.2%
Construction, distribution and
production managers 8.2%
Child carers 8.4%
ICT network and support professionals 9.7%

Sunday, 26 April 2015

Justice Michelle Gordon - be someone else

The only true wisdom is in knowing you know nothing.
Socrates (c.469 BC – 399 BC)

The Honourable Justice Michelle Gordon's first, and so far only, self publicity piece goes to the heart of the self deception the poor woman lives with every day. It's in the title: “Be Yourself”: The Hon Michelle Gordon’s Rise To The High Court.

It is an unusual human being that would recommend that human nature is a perfectly good course of action. There are relatively few people who should be themselves. Even Jesus saw the need for the recognition of sin, forgiveness and redemption. We are all flawed meat machines. Gordon J is a flawed meat machine too. “Be Yourself” is hollow. I for one would prefer not to thank Gordon J for the advice.

When asked what was the most difficult thing, Thales replied, “To know thyself.”
When asked what was easiest, he replied, “To give advice.”

Rather, to know “Know thyself” should be the proper path for any person.
Ironical irony
If you know thyself then you are deceived for it is a journey and not a possibility. Greater awareness to look into our flawed selves to measure and foil our prejudices, foibles and habitual corruptions is something we all need. To try to know thyself is the proper journey of consideration and constant adaptation. There is certainly nothing quite so important in financial trading as the graveyard is full of those that chose to be themselves.

“The first thing you have to know is yourself. 
A man who knows himself can step outside himself 
and watch his own reactions like an observer.”
― Adam Smith, The Money Game

The arrogance contained in Her Honour's article is palpable. This is the typical approach Gordon J has applied throughout her career often to the expense of procedural fairness and justice. It's no secret I believe Gordon J is an inappropriate appointee to the High Court of Australia. I wrote regarding this matter here, here and here.

I believe Gordon J should be condemned for the prejudice and bias Her Honour has time and time again displayed in the court. Nepotic cronyism and the hunger from within her circle for status and money has powered her rise to the High Court of Australia.

Gordon J is the anti-woman. There are much better female jurists.

Gordon J has curried favour throughout her career. Margo Kingston apparently wrote on the Hayne J relationship:
The Occidental case also changed Hayne’s life more fundamentally; his instructing solicitor was Michelle Gordon, a young solicitor at Arthur Robbs. Three years later, in 1995, Hayne divorced his wife of 25 years, with whom he had four children, and married Gordon, now a barrister. They recently had a son. The saga shocked legal circles, and is the only outwardly distinguishing feature of a standard establishment career in the law….
We should not care about the private lives of our citizens. It should not matter if someone has a relationship with a goat and seven different weekly partners if that fits their fair path without societal harm. However, self assessed deception and rule breaking is always a concern for those relied upon for their ethical and moral leadership. The self awareness of the deception in the adultery within the Hayne J and Gordon J relationship is a concern whereas it wouldn't be if it was an open marriage for example. It must be said, if anything, it reflects more poorly on Hayne J than Gordon J. I don't know why the tendency of society is that women should be thought of more harshly in such situations; after all, Hayne J was the married one. However, there is a message in that if this “being yourself” as promoted by Gordon J includes all of the journey, then the legal casting couch is also part of the story. Be Yourself?

It should not be so.

A good example of a female jurist developing is given by The Honourable Justice Susan Kenny in an interview in 2010,
Q: You later moved to the Federal Court. What attractions did the Federal Court hold for you?
A: The central reason was that I felt, as an appellate judge, I lacked the experience of a trial judge and I didn't have any commensurate experience to fill that gap. I hadn't been a long-time trial lawyer and I hadn't sat as a judge in a trial court. I felt rather presumptuous about dealing with often the quite workaday matters that arose in a trial from the point of view of a person who had never really been involved in that environment. So, the prospect of operating both as a trial judge and as an appellate judge seemed to me to be a good one and, although it's odd to say 12 years after becoming a judge, I think I made the right decision. This was not because I wasn't learning a lot in the Court of Appeal. I was learning an enormous amount there, and I was tremendously well-supported and mentored by the other members of the Court. I left with great personal regret, but I think to develop, given the age I was, and with the experience I lacked, coming to this Court was a good thing.
This is a positive example of the consideration to know thyself by seeking to develop trial court experience. The HCA needs more women like Kenny J and the HCA's Honourable Justice Susan Kiefel AC and not Gordon J.

Gordon J is the anti-woman.

Promote better women. Women of merit without unconstrained prejudice and nepotic cronyism.

Don't be yourself. Know thyself.

PS: Australia needs a judicial appointments commission to prevent such cronyism from happening again:

Tuesday, 21 April 2015

Gordon J - the price of justice - salary & super

Gordon J and Hayne J (retired) will take home $821,078 in combined remuneration in their first High Court year. Does the taxpayer get value for money? Should a judge on the High Court of Australia be paid $529,190 when a US Supreme Court judge is paid $246,800?

I found the nepotic cronyism of the appointment to the High Court of Australia of Honourable Justice Michelle Gordon galling. I wrote about it directly here and somewhat indirectly here.

Let me meander through.

Gordon J and other High Court judges are rewarded pretty well when benchmarked against US standards. Let's work through the sums as per the current remuneration tribunal document.

For the High Court of Australia my calculations show this:

Salary Travel Car Total $
Chief Justice 536,070 31,860 10,850 578,780
Judge 486,480 31,860 10,850 529,190

Which is not too different to the $507,338 reported for the prime minister. For what it's worth, the US President's take home pay is $400,000.

A whilst the rest of the population has been forced to contribute and save for their retirement, High Court jurists get the fat cat package of a defined benefit scheme of up to 60% of their salary once they have their time done.

The Hon Justice Hayne, Gordon J's husband, has just retired and will be eligible for his 60%, so, by my back of the envelope calculations, the legal power couple will take home $821,078 combined for their first full year as a High Court powered couple. Not bad for a public service mandated 36 hour week, where Christmas to February is a holiday, and a retiree.

Gordon J was appointed to the Federal Court of Australia on 20 April 2007. The full 60% of salary for life is appropriate after ten years of service (6 years for 50% FWIW). On dual retirement they'll have to scrape by on just $583,776 per annum for the rest of the lives if they have no other sources of income. Relax, you wont have to worry that inflation may eat into their retirement income as it is benchmarked to current salaries, not what they retired on.

There also may be an anomaly that the spouse of a superannuant under the scheme gets the benefit if the superannuant passes away. Macabre as it is, Hayne J is about 20 years older than Gordon J, so Gordon J may be eligible for $583,776 per year on her own after Hayne J shuffles off the mortal coil which seems a little unfair to the taxpayer.

These gross and somewhat offensive defined benefit schemes are from an era gone by and seem unjustified in the modern world. Such schemes should be consigned to the annals of extravagant history to which they belong.

It is worth comparing to the state of play in the United States of America. The ultimate court in the US which holds the fate of some 321 million people in their grasp, is the US Supreme Court. Here is the remuneration comparison between the US judges and the Aussies:

Australia USA

High Court Supreme Court
Chief Justice 578,780 258,100
Judge 529,190 246,800

Ah, hem...

No wonder Gordon J saw the theft of twenty years of my wife's super as inconsequential. Twenty years of superannuation for a school teacher is a trifling matter when you live in an ivory tower as tall as Her Honour's own.

Gordon J condoned the theft of my wife's superannuation in VID 1478/2011. Twenty years of superannuation savings from secondary school teaching vanquished by an inept judge.  Gordon J dismissed a claim that a company did not have the right to transfer shares back to themselves from this independent third party, my wife's super, without even a signature. An outrageous theft which Gordon J saw as reasonable for reasons best known to herself and completely unexplained. If you think Gordon J's appointment is a step forward for women, think about the ramifications of such a superannuation theft for a woman who has toiled in classrooms to improve the lives of others for a couple of decades.

Legal costs for corporates are out of control. The salaries of our High Court judges are exemplars from a data set representing how the costs of the justice system are unambiguously high. Just compare the remuneration to the USA. We are missing reasonable market mechanisms to reign in such expenses. Decisions from the court often take years. There is nothing reasonable or modern about a system that takes years to prosecute basic outcomes. Perhaps in the years to come a shadow tribunal system maybe the only alternative for companies to avoid the ridiculousness of the modern anachronistic legal system of perverse precedent and little common sense.

Appointments such as Gordon J to the High Court by the LNP coalition and Murphy J to the FCA by Labor undermine public confidence in the judiciary.

Australia needs a judicial appointments commission to prevent such cronyism from happening again:

“In a democracy, every educated citizen should have an understanding of the role of the judiciary, the manner in which the courts function and the history of the
relationship between the courts and other organs of government. This is particularly important because … the independence and authority of the judiciary, upon which the maintenance of a just and free society so largely depends, in the end has no more secure protection than the strength of the judges themselves and the support and confidence of the public.” [The Right Honourable Sir Harry Gibbs GCMG AC KBE from Cunningham (ed), Fragile Bastion: Judicial Independence in the Nineties and Beyond, (1997) at v]
Reform is needed.

PS: If you want to see a real hard working judge, spend a day in the family court with a friend like I did a few months ago. An extraordinary circus. I don't know how those judges survive. That is true selfless service.

Saturday, 18 April 2015

Metamako Metamux - First 10G Ethernet sub 100 ns switch

This is an awesome result worth getting excited about for the team at Metamako.

Thirty sec flood test with 10G Ethernet:
98.977 nanoseconds

It is the first device that I know of from a good vendor that will take two, or thirty, 10G Ethernet fibres and aggregate separate packets onto one fibre with a double digit nanosecond result. And it demultiplexes them on the way back at a similar speed. Perfect for the fastest possible way to interface to a financial exchange's or broker's infrastructure! If you need to aggregate to an exchange or broker and you're not using something like this then I guess you're happy with second place ;-) It's not a full L2 N x N switch but that is not what you need for those use cases.

Here is the performance news from their announcement list.

From that page we see this setup:
The fibres connected were 1 m OM1 multi-mode, and the SFP+ modules used were Finisar FTLX8571D3BCV, running at 10G. For completeness, the network cards used were Mellanox ConnectX3.  
Each test ran for 30 s. The flood ping used generated approximately 800,000 packets in that time (e.g. each sample below is around 800,000 samples).  
The measured latency is wire to wire including the SFP+s.

It supports very cool flexibility with the layer 1 reconfiguration. Timing features are baked in. My understanding is that existing customers get the improved performance with a simple firmware update. Not sure how open the 64 bit Intel processor platform is. It would be interesting to put your own bits and bobs onto that Linux management unit if they'll let you.

I used to work with a few of the Metamako team members some years ago. They are an impressive lot, so it is nice to see them get a super first like this. They truly deserve their #39 on the Global Top 50 Fintech Innovators list. A good news story.

Happy trading,


Thursday, 16 April 2015

Honourable Justice Michelle Gordon is a shit judge

Statue of Lady Justice on the Well of Justice
 in Bern, Switzerland.

Sculptor: Hans Gieng, 1543
Honourable Justice Michelle Gordon is a shit judge.

Le préjugé est une opinion sans jugement
Prejudice is an opinion without judgement

Voltaire (1764)

Her Honour has an excellent legal mind, is charitable, has clearly been dedicated to legal education, and has demonstrated a strong work ethic over the years. All good qualities.

Her Honour has the same arrogant streak displayed by her husband, High Court justice Honourable Kenneth Hayne. The main difference is that Haynes J's arrogance is palatable as he is usually right and his approach is often tempered with good humour. That is, his arrogance is well formed by authority and invites strong argument to rebut. You may not like it but it is earned. Hayne J has proved to be an excellent judge. Gordon J's arrogance is qualitatively different.  Her Honour's hubristic approach has resulted in judgments devoid of balance, appropriate reasoning and coloured by a flawed sense of personal righteousness.

Her Honour is a shit judge.

I've had the misfortune to be both a represented party and a self represented litigant in the Federal Court of Australia the last four years. You may like to dismiss this clarion call as an extreme bias as Gordon J ruled severely against me. I also self represented on an interlocutory application to have Her Honour withdraw for apprehended bias, because, well, of apprehended bias. Gordon J withdrew but dismissed my claims of a lack of impartiality. These claims continue to be a factor in an appeal awaiting judgment from the Full Bench of the Federal Court.

This tragedy and injustice I've been living with has let me see quite a few judges of the FCA first hand:
  1. Justice Shane Marshall – ruled against me on various leave to appeals and interlocutories
  2. Justice Christopher Jessup – ruled against me on various matters after stepping in after Gordon J withdrew
  3. Justice Richard Tracey – found me in contempt of court
  4. Justice John Middleton – ruled against me on an interlocutory but did not prevent forward progress on my final appeal attempt
  5. Justice Susan Kenny – heard a interlocutory leave to appeal attempt and denied it
  6. Justice Michelle Gordon – heard majority of the main case, including six days of trial, ruled against me
  7. Justice Jennifer Davies – heard insolvency hearing – ruled against related companies
  8. Justice Bernard Murphy – heard attempt to get leave to appeal liquidation - denied
  9. Justice Antony Besanko – sat on two day appeal of main matter and contempt
  10. Justice Jonathan Beach - sat on two day appeal of main matter and contempt
  11. Justice John Gilmour - sat on two day appeal of main matter and contempt
That's eleven out of the current forty six Federal Court judges I've had the misfortune to experience. I feel a bit like a restaurant critic that can't cook. I have some opinion on the merits of these judicial folk, at least in a relative sense, though I certainly am no expert in how they cook.

I haven't had any luck yet with no favourable rulings to speak of, so I guess I should hate them all. However, in the main I've found them to be quite impressive folk despite the public floggings I've received.

Surprisingly, I'd have to say, Gordon J was not the worst of them. That dubious honour went to Justice Jennifer Davies. Murphy J floundered incompetently in my matter but I couldn't really say he was flawed judge, just inexperienced and not at the top of his game. More about all that later. Gordon J was only the second worst out of the eleven. Tenth out of a sample of eleven should not be High Court material.

The big defect Gordon J carries around is her unwillingness to consider both sides of an argument. There is no weighing of the scales in the justice equation in her court. This is a clear failure in a judge. Consider the statue of Justitia in the picture above. The sword represents authority and the ability or right to pass sentence. The blindfold represents that justice needs to be impartial to the participants. The prince and the pauper should have their cases considered on merit. The scales represent the idea that a proper weighing needs to take place and the case of both sides needs to be properly stacked and accurately considered. After all, there is a sword involved. Now I believe in my case the Gordon J forgot about her blindfold but that is not the primary systemic failure I saw in her as a judge. The systematic failure I saw in my case, and in other cases in her court, was the inability to properly balance and assess both sides of the argument. She does not know how to use the scales. Gordon J is simply not judicial.

I could wax lyrically for hours about the injustices I perceived in my own case, but I'll resist the temptation just now as some of the circumstances were quite specific to just my case with regard to impartiality and other matters.

Consider instead the Norcast v Bradken case Gordon J ruled on. It was bizarre. The $US22.4M damages awarded to Norcast by Gordon J was deemed so unjust that both sides agreed on appeal to a common position of overturning the decision via consent orders. Yep, the team that won decided Gordon J's decision should not stand. The humorous, at first glance, thing was the full bench did not allow this consent position. You may find this strange, but the Court's approach really was pretty reasonable as the argument was that it was the court that decides these matters and not the parties. Random people can't make law via precedent. That is the role of the court. No, not the "random" aspect, the other bit about making laws. Instead the court wisely found another procedural mechanism to mete out the main justice of the consent position though the wacky Gordon decision still stood.

Gordon J's Bradken judgment smacked of a lack of professionalism in the language and approach in the text. Greiner “hoodwinked” people. He was “evasive and hostile.” Conduct was “misleading or deceptive.” The contravention was “aided, abetted, counselled or procured”. “He was evasive and hostile and eventually contended that he did not recall what he meant”. I don't know enough about the law to know if the outcome was correct or not, but I know enough to know that Gordon's judgment was shit. The inappropriate use of language, the apparent gaining of perceptive powers far in excess of any psychic, and the effective prosecution of a case without due balance made this judgment a Gordon classic. Gordon's hubristic streak results in a dysfunctional courtroom where she has to be seen to be the smartest person in the room. Counsel have to tread carefully as they have to live in the same ecosystem for the life of their careers. Furthermore, this is an ecosystem where politics and allegiances run rife in the judicial battle for status and recognition. Judges protect their own as a natural tendency and a judge like Gordon that is defective in judicial personality has to be appealed carefully if you want to have that extended career you crave. Appeals are tough when fanciful narratives and opinionated findings are pronounced by the bench and wrapped, or warped, together in a prosecutorial manner to stem the likelihood of the great judicial stain of successful appeal.

It was this kind of crap language that stood out in the bank fees case also. The Full Bench of the FCA agreed that the language used for fees for all circumstances being “unconscionable” on an ex ante basis was inappropriate. The AFR reported, “In a strongly-worded judgment running to 370 paragraphs that lambasted any notion that the fees were unjust or unfair, let alone an illegal penalty, Federal Court chief justice James Allsop said that the court should not assume the 'role of a price regulator'.” The Full Bench agreed with Honourable Chief Justice Allsops statement that there was, "no basis to conclude that … the provisions were unfair or the transactions unjust." Additionally the AFR reported one of the judges, 'tak[ing] a swipe at judges imposing personal perceptions of "desirable social goals".' Honourable Justice Middleton wrote, "A rationally based system of law needs to set out the limits of acceptable commercial behaviour in order that persons can order their commercial affairs in advance" … "Such a system cannot depend on the personal approach of a judge, based upon his or her view of commercial morality." The overturning also made it clear that specific circumstances for a specific customer may be different and indeed be extravagant and unconscionable as required by the legislation for the penalty doctrine to kick in. Specifically in that regard, Justice Allsop wrote, "That is not to say that in relation to some customer, of some bank, the particular circumstances concerning a particular account, including its terms and how the particular customer was treated, may not bespeak unfairness, unjustness or even unconscionability."

However, by far the worst thing about the bank case appeal was that I had to feel some sympathy for the banks. I hate that. It's not a comfortable position. It was classic Gordon J, overstepping and using extravagant language. Now, I've had tens of dollars charged for a credit card being a few cents in the red, due to a tiny interest charge, as a late fee, so it is hard to feel the banks were hard done by. However that anecdote just emphasises the circumstances need to be specific. I also acknowledge my situation was the consequence of the rules I'd agreed to. I didn't have to bank there. I've also had such a late fee refunded both both automajically and after complaint. I guess the idea is, if you think something specific is unfair, seek a specific remedy. Remember the cost of a default on an account is going to swamp a late fee and the question is a much more complex one than that considered by Gordon as the FCA Full Bench correctly pointed out. There may still be a different and more appropriate legal approach for remedy by class action for the plaintiff but that is a different case. The natural answer is, if you don't like your bank's rules, find another bank (or credit union). Allsop, Besanko and Middleton JJ did a good job with the case before them. Gordon's judgment was shit.
Honourable Justice Michelle Gordon

Ben Butler reported in Fairfax papers on 18 September 2012 on Gordon J failing to immediately withdraw from an ASIC case involving Bill Lewski. From a distance it was difficult to have much sympathy for Lewski's position in the case but who knows the details from afar. However neither sympathy nor the merits of the case are the issue here. The main point I'd like to make is that Gordon J was the judge dealing with the case and she had acted for ASIC as a barrister against Lewski previously! How could Gordon J think it possibly appropriate that she could properly oversee the matter without any possible perception of a lack of impartiality from the public? Remember the test is that justice must not just be done, justice must be seen to be done. The idea is that some prototypical (and mythical) reasonable layperson must not believe that there could be a question regarding the possibility of impartiality. Blind Freddy could see this was an immediate concern and not a cause for hesitation for this particular circumstance. I'm not sure what eventually happened. The point is that Gordon J should have raised the matter earlier. Gordon J should not have hesitated to do the right thing when it was eventually raised by Lewski's QC, Peter Bick.

My wife is a maths teacher being the head of the maths department at a secondary school here in Sydney. She is an excellent teacher. I'm a computer programmer and an experienced high frequency trader with some experience in machine learning and maths. My wife agrees that my maths is better than hers. We also agree that she is a much better teacher than I could ever be. Teaching is a skill in itself that transcends the subject matter. You need competence in the underlying field at hand but it is excellence in the skill of actually teaching which makes for a great educator. I would be a shit teacher. I see the same in judges. An excellent legal ability will not always translate into being a good judge. Legal ability is a necessary but insufficient quality for judicial office. This is where Gordon J, and the system, fails. The Federal Court of Australia and the High Court of Australia should not be places for judicial training. There is the unfortunate constitutional right to tenure to the appointed court for a federally appointed judge. You can't get rid of them without extraordinary circumstances. You'd better be careful in the appointment.

My particular court flirtation is a long and sorry tale. Naturally, I believe Gordon J's findings against me were incorrect. Hence my appeals. Just waiting on judgments to be pronounced on those appeals. As a self represented litigant before three judges of the FCA Full Bench, the historic case statistics tell me I don't have much chance of success. Somewhere between Buckley's and none. Even though I certainly believe my appeals had merit, I'm not sure my mumbling and fumbling and disjointed argument cut though. There is a reason you need professionals when you go to court. The hotel of self representation is a destination of last resort you don't want to find yourself in! Full credit to the court for at least allowing me the latitude to try to make my case for remedying an injustice. The process reminded me of a bad interview. And it is perhaps worth remembering that a geek like me shouldn't get hired for interview skills. Maybe the appeals can be like that bad interview where the interviewer is clever enough to see the value despite the fact that you're crap at interviews. Interviews rarely work that way, though some of my best hires have been great people that have been not so great at interviewing. Yeah, that's you Mr Lee, Apple screwed up rejecting your genius fortunately for Zeptonics :-) You never know, perhaps the gods of the Court of Chancery can somehow find the truth through the mist.

The bigger screw up was by Davies J and an appeal was not allowed to be heard on that matter by Murphy J. It was beyond wrong, or even beyond being a bad hair day. Plainly despicable. However, at the end of the day, it was all dependent on Gordon J's outcome. Here is a flavour of some of the situations in my cases:
  • Gordon J works at Melbourne University;
  • both opposing barristers were working at Melbourne University along side Gordon J;
  • the main protagonist on the other side had a wife that worked as a Professor heading a department at Melbourne University;
  • the other side donated at least $300,000 to Melbourne University;
  • other side had a relative get a prize from the Melbourne University Law School Masters, where Gordon teaches, about the time of the case was being heard;
  • information leaked from the Registry to the other side, where I got an affidavit response to an interlocutory before it was even served;
  • when I queried this possibility the stamped interlocutory for service was resent with a back dated date;
  • a Registrar acted against us and later declared a friendship with the other side, then continued to act until he had to award some unfavourable costs against the other side, and then he withdrew;
  • the case became controversial, especially as I applied to have Gordon J recused, and Her Honour withdrew mid case without stating reason, so for the insolvency action, a Registrar offered our choice of judge which was unusual, we asked for Marshall J though he had previously ruled against us, and got Davies J, a new judge working who worked and continues to work in the same small tax department at Melbourne University along side Gordon J; and
  • the other side had many connections via work, boards, friendships to both Gordon and Hayne of various degrees of familiarity, such as a significant shareholder working closely with the current Governor of Victoria, now also the Administrator of the Commonwealth, (Hayne J signed his commission) a good friend of Hayne J from their Victorian Supreme Court daze.
Crazy stuff. At least an interlocutory process did get the Gordon J recusal I needed for my sanity even if it was too late to have any effect. My goose was already cooked as liability had been judged and ordered with a dollop of injustice.
Bias weeps and condemns, plate IX from Thronus Justitiæ

Gordon J fails the good judge test; not on technical legal capability, nor on work ethic. Gordon J is clearly a good person as I previously mentioned. Gordon fails in the being able to stack and balance the scales. Gordon J is simply not judicial. Maybe she can change? However the High Court is not a training park where we should let bad judges run loose to see if they can get the hang of it and learn to be judicial.

I know many people in the legal fraternity agree that Gordon has “issues”. They are largely silent. As I'm typing this I have just seen an AFR editorial questioning the appointment. I'm not so alone. However, no one in the legal profession can ever criticize a significant judge if they value their future. Judges are for life. There is no escaping them. You won't hear the head of a law society or state bar association criticising a High Court judge. Perhaps a decision, but not the ability of a judge to be competent at their job. Indeed you'd hope heads of such bodies are politically aware enough not to commit public acts of Seppuku by criticising such a judge. So how did this dodgy judge get appointed to the High Court of Australia? How come the system has such confidence in her appointment that if she sees out her term she will rise to be the tenth longest term in office in the history of the HCA? What a frightening prospect!

Simple. It's politics. It's about favours, friends, connections and the natural consequence of being in an environment where, even though the system is adversarial, you have to act collegially and play the game to look after your own interests.

Part of the story is the about the powerful tentacles of the Melbourne Club. Part of it is just nepotism and cronyism. The Australian egalitarian ideal of a meritocracy continues to be abused by such tyranny. Justice Nettle read with Justice Hayne. Justice Gordon read with Justice Nettle. The Governor of Victoria, Honourable Alex Chernov AC, QC became the Administrator of the Commonwealth (kind of the Commonwealth Deputy Governor General), being the longest serving governor, signed in by his friend Hayne J on appointment. The two are good friends from their shared Victorian Supreme Court experience and other experiences. Howard recommended Hayne J's appointment. Brandis was the public face of putting forward Gordon J as Abbot's nominee. It can't have have harmed Gordon that Julie Bishop worked with Gordon in her early daze at a firm in WA that was eventually consumed by Clayton Utz. There are well connected supporters in the Gordon J camp.

That's a powerful political imperative for an appointment recipe. Hello cronyism. Merit begone. 

HCA appointments have always had a political dimension. I'm not sure if, in Australia's brief history of being a nation, such a bad judge has been appointed for such an extended period. The harm will last nigh on twenty years as Gordon J does not turn 51 until November this year. That leaves nearly 19 and a half years before she suffers the same fate as her husband Hayne J did this year by reaching the constitutionally mandated retirement age of 70. Gordon J is the 52nd HCA appointee and will become the tenth longest serving member of that esteemed Court with over 7000 days if she lasts the distance. That's a lot of days. Let's hope she changes and becomes a good judge somehow.

It begs the question of what alternative were there? There is a large and talented legal pool in Australia to draw from: FCA justices, State Supreme court justices and even former attorney generals and QCs to perhaps call on, though I believe judicial experience is essential for the reasons I've outlined. There are a lot of impressive jurists who could serve Australia well.

The politics dictate the person had to be Victorian, most likely, or perhaps South Australian, which is overdue for representation but less politically powerful, so somewhat less likely. This rules out, for example, FCA Chief Justice Allsop AO as His Honour has the misfortune to reside in NSW. Allsop CJ is stunningly good. Merit begone.

I can speak to the eleven FCA judges I've unfortunately experienced and we can play survivor with them to see who could be an alternative there to illustrate. This represents 11 out of 46 FCA justices.

Justice Gordon, Justice Jennifer Davies and Justice Murphy were duds. Murphy at least seemed smart and to be trying to consider balance, though he clearly floundered in the experience I had. Perhaps there is hope for him as the training wheels come off. Davies J was either really really terrible or corrupt, so let's just call her a terrible judge. I doubt Gordon and Davies will ever rise to true judicial quality. You never know. They are young for senior judges. Plenty of time.

Justice Gilmour is from WA and thus gets kicked from HCA consideration regardless of merit. Maybe His Honour will be the obvious candidate in 2017 when HCA CJ French retires as the next retiree, so it is not it is not so bleak if that is an agenda item for his career of good service. The subsequent HCA retirement is not due till 2020 which is, somewhat perversely, the most recent appointee, Nettle J from Victoria. Victoria gets another bite at the cherry soon enough.

Next on my list, Justice Tracey is Victorian and a good judge with qualities of balance that Gordon J misses. I initially thought via our initial interactions from his slow, deliberate staccato speech style he was some kind of dottering fool in need of a Zimmerframe. How wrong was I. Once he got moving, he was articulate and quick thinking and often the best legal mind in the room at the time. His judgments read well. I thought about his periods of unusual speech delivery quite a lot. It was a good lesson for me in needing to resist judging by first impressions. I noticed that the bad audio representation I heard with my ear usually read very well. The occasional and unusual staccato delivery seemed to be the experienced judge simple dictating carefully. I'd imagine being aware of the omniscient court transcription process is an art. Makes sense now. My first impressions of Zimmerframeness very very wrong! Smart really to adapt to transcription in such a way. I'd probably prefer him not to reach for the guillotine whenever he hears the word contempt. Bygones. Despite His Honour making decisions I disagreed with when he found me in contempt, I think he would be one of the most enjoyable jurists to have a red wine over dinner with as there was quite a sparkle in the soul that escaped the banal setting of the court room from time to time.

Justice Jessup is another Victorian that ruled against me. He is a very impressive and very careful jurist. Quite a black letter law judge with a good eye for detail even if I found some fault with minor elements of his reasoning in my case. I spent the most time in front of Gordon J, Tracey J and Jessup J. Jessup J was the best of this crew. Jessup J definitely is HCA material unlike Gordon J.

I found Marshall J to have an exceptional presence. He is one of those people you encounter where the brilliance just exudes and it is obvious without him barely saying a word. He is that good. Maybe I just got him on a good day. He is also perceived to lean left of centre, though I didn't see that, and he thus would never be appointed by a conservative government to High Court. He trashed my applications in court so I really ought not to like him but, alas, he is bloody good even if he is a Collingwood supporter. Nobody's perfect. Australia needs a HCA judge like Marshall but a conservative appointee he will never be.

Justice Middleton stuck me as being cut from the same cloth as Marshall and Jessup. He was also an obviously exceptionally talented jurist. Along with that talent, he had quite an impressive statesmanlike disposition. He seems a natural leader. Out of the judges that I know of from Victoria he would have been my bet for the HCA appointment. Maybe His Honour's time will come with Nettle's retirement in 2020.

Of the three judges sitting on the Full Bench of my appeal, I've mentioned Gilmour J above and he may be a front runner for the 2017 WA slot. Victoria's Justice Beach has prodigious technical abilities and not just in law. His talents rise to quantum physics and all sorts of expert matters. As a relatively new and younger FCA judge, Beach J needs more time in the oven before the world can interpret his judicial qualities properly. That just leaves Besanko J of that triumvirate to consider.

Besanko J was two giant failings. Firstly, he has the misfortune to be from South Australia. South Australia has never had a High Court appointment. Only a Tasmanian judge would be feeling less likely. Perhaps one of the next 52 appointments might be from SA though the Melbourne Club will fight tooth and nail to prevent that close proximity failure. Frankly, I thought SA origin might actually work in Besanko J's favour for this appointment as SA is definitely overdue. WA has not been always represented with a judge in the HCA, so perhaps Besanko can claim WA's spot for SA as early as 2017? Not really likely though as the politics of WA losing their representation would be difficult politics as is obvious to anyone listening to the state v state GST debate.

Besanko has the ideal qualities to fulfil such an esteemed role as a terrific jurist. He is twice the judge that Gordon J will ever be. However that brings up his second great failing. He has a penis instead of a vagina. I presume. The government is desperate to add female representation to the court given their all too public failings with gender misrepresentation in their cabinet. They already suffered some damage appointing Nettle J to replace Susan Crennan J despite Nettle J being a fine legal technician. The coalition government needed a woman and I don't really get the impression Justice Besanko qualified.

Now, I'm actually in favour of positive discrimination for gender. Women need support to break the glass ceiling and with only five HCA appointments in all of Australia's history being women, despite about half of university law graduates now being women, there is some catching up to do. Just like geography, gender has role to play in representative balance. Justice Kirby said, "Women are not just men who wear skirts." However there has to be an expectation that the appointee is suitable for the role and meritorious.

Victorian FCA judge, The Hon Susan Kenny I viewed as not quite in the same class as Besanko, Middleton, Marshall and Jessup in talent and ability. However she is an obviously better judge than Gordon J and her appointment to the HCA would not be the retrograde step that Gordon J represents. Kenny J ticks the conservative box as a Howard appointee to the FCA though I'm not sure how many years Her Honour has left until retirement beckons, perhaps ten or just under. A more reasonable term. So why not Kenny J? Perhaps she wishes to retire sooner? Was it her former role as a Commissioner of the Human Rights and Equal Opportunity Commission? Surely that is a positive and not negative?

So I thought Middleton, Marshall, Besanko, Jessup, Kenny, Gilmour were all fit for the HCA immediately and much better alternatives to Gordon J. Conservative politics and geography would rule out Marshall, Gilmour and perhaps Besanko (which seems wrong). So there were good alternatives in that very small sample. The best conservative judge, and quite a statesman, from Victoria would have been Middleton. The best female Victorian judge on my list would have been Kenny. Silly game, but it makes a point. There are plenty of other good jurists that may also fit the bill, especially in the Supremes. The government should have done its job properly. The process of appointment needs to be fixed.

Corgis are cool. I like the monarchy but I'm a Republican. I don't like having to tell my daughters that even though they are born in this country as citizens they can never rise to be Australia's head of state. They cannot be the Queen. Knowing that a citizen is prevented from station by birth is galling. Gordon J's appointment to the High Court feels like that. It is saddening that a bad judge via nepotism and cronyism can get such a prestigious and undeserved appointment. Sure there is always the politics of balanced representation but each unmeritorious appointment kill the hopes and dreams of a society that continues to have egalitarian ambitions. Gordon J's appointment kills a little of all of our happiness as the fairness is missing. There was no need. There are many talented female jurists in Australia. The bottom line is that Gordon's appointment has corrupted our society to some degree.

It is especially sad there is unlikely to be a proper debate. I've already heard of much discontent in the legal ranks as they rankle, but you're unlikely to hear it (update: maybe?). Dissidence is death where biases can shape outcomes in court and prevent appointments furthering careers. Brandis seemed to know it would be controversial by spinning out the line about how marriage should not prevent a candidate from consideration. So, the government knew it to be a fine example of cronyism and nepotism and did it anyway with the spin doctors at the heel. A nice FU to the citizenry from our democratic leaders. I'm hardly the font of all knowledge and am only scratching the surface with a very limited perspective. Out of eleven judges I'm familiar with, a tiny sample, nine have more merit than Gordon when I wear my somewhat flawed judicial critic hat. The obviousness that Gordon J is more like Joffrey than Ned Stark is unlikely to get traction in the public discourse. Those that know, wont say, and, most of those that say, don't know. Nothing will change. Gordon J is a shit judge now. Insanity is doing the same thing repeatedly and expecting a different result. Gordon J will be a shit judge at the High Court.

Whilst I'm deeply saddened Australia can allow this kind of crap to happen, I'm not sure anyone will really care. There are bigger failings afoot in society. For perspective, here are some more important issues in justice and corruption. The appointment of the wrong person to an ivory tower far from the relevance of the maddening crowd's daily routine is not a recipe for community interest. Perhaps, near enough is good enough continues to be the Australian way. A society where excellence has no place is a disturbing thought to my ideals. Much like the reaction to the new privacy and metadata laws you should expect we'll only hear the sound of one hand clapping.

I'm disappointed with Gordon J's unmeritorious appointment.

Please don't appoint shit judges to the High Court. Just stop it. Please stop. Stop it now! And, while you're at it, FIX the damn process so it doesn't happen again!

Fiat justitia,



Some links;

A simple statement

"As those who know me, I abhor publicity and attention," Gordon J said. "I believe that professionally a person should be judged by the nature and quality of their work, and not by any other fact or matter."                     #FAIL

Tuesday, 7 April 2015

Zomojo ceasing financial trading?

I heard some rumours in the market today that Zomojo has ceased trading operations. I don't know the real truth of the matter as it is just rumours and I'm normally the last to know. No news on the staff that are part of Zomojo's Exablaze subsidiary. The Zomojo web site was up early this morning but hasn't been accessible for the rest of the day. This would support the rumour. Their IMAP (port 993) and SSH services (port 1022) are still running.

Given pending court decisions, plus Zomojo's ripping off millions of dollars in fraudulent representations to ASIC and the ATO, they may be liable for some rather large bills. I presume they wont be disposing of any assets as, given their contingent liabilities, any such transactions may get messy being potentially subject to claw-back under Australian insolvency laws.

If any one has further information I'd love to hear some more.

Caveat emptor,


[Update: the web site is back on-line two days later FWIW]

Saturday, 7 March 2015

Apprehended bias and pornography

During my appeal to the Full Bench of the Federal Court of Australia this week an interesting question arose regarding apprehended bias which also relates to pornography.

Porn folder (Source XKCD)

In my submissions there were many legs to the apprehended bias allegations and Honourable Justice Beach questioned the nature of many strands leading to apprehended bias. It is a good question. I think the best answer to such a thought comes from Justice Potter Stewart of of the United States Supreme Court in 1964 when regarding pornography he uttered, “...I know it when I see it...

The full quote regarding “hard-core pornography”, which is not to be protected free speech, was famously quoted by Justice Potter Stewart in Jacobellis v. Ohio:
“I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”
A similar discretionary notion might be said to apply to apprehended bias from a court's view point. There are similar difficulties in trying to define a hard test but in an instance like the one I was facing there should really be no doubt that apprehended bias existed in the totality of the combination of circumstances.

Just as it may be appropriate if you find a $1 coin on the pavement to not feel guilt in blessing your luck and putting it in your pocket; it would be inappropriate to not turn to the authorities when finding a thousand $1 coins on the street. At some point such coin collection crosses a threshold of community standard of relevance. A similar notion exists in the old many versioned morality story of a lady being willing to compromise her morality for a large sum and being offended with a small sum. It usually ends with,
"W: What kind of woman do you think I am?
M: I thought we'd already established that. Now we're just haggling over price."
In this way, apprehended bias is indeed like pornography, although the balance of probabilities should be biased differently. In both cases caution should be the consideration.  For pornography caution means the obscenity should have clarity beyond camera focus. For apprehended bias the concern is impartiality. The balance of consideration must be that impartiality is not to be risked for public confidence in the judicial process.  This implies a different focus on the grey line. Pornography should be without doubt obvious to meet the consideration of guilt. Apprehended bias should be seen to be a likely risk in the reasonable perception of the mythical fair minded layperson. There is an awkward tension here as the perception of impartiality is not be risked but a conclusion of apprehended bias should not be too easily reached.

Thus, “I know it when I see it” seems to be a good test for both apprehended bias and pornography.