A party to civil proceedings may waive an objection to a judge who would otherwise be disqualified on the ground of actual bias or reasonable apprehension of bias
Originally Published By Amanda Kmetyk, Sophie Cooper, and Annaliese Williams on Friday, September 8, 2017 9:26:08 AM
Bezer v Bassan [2017] NSWCA 214
This appeal arose out of a hearing in personal injury proceedings brought by Mr Bezer in the District Court of NSW, which commenced on 10 July 2017.
During the proceedings, the plaintiff called Dr Harrison to give evidence. Two days later, Dr Harrison lodged a complaint with the Judicial Commission alleging that the trial judge had bullied him, such that he might have perjured himself.
On 26 July 2017 the trial judge received notice of the complaint and relisted the matter for 28 July 2017 so as to inform the parties.
The plaintiff filed a motion on 10 August 2017 requesting that the trial judge recuse herself from hearing the matter.
The motion to recuse was heard on 24 August 2017; the same day the part heard hearing was listed to resume. Following the conclusion of argument on the application, the trial judge said:
Background
This appeal arose out of a hearing in personal injury proceedings brought by Mr Bezer in the District Court of NSW, which commenced on 10 July 2017.
During the proceedings, the plaintiff called Dr Harrison to give evidence. Two days later, Dr Harrison lodged a complaint with the Judicial Commission alleging that the trial judge had bullied him, such that he might have perjured himself.
On 26 July 2017 the trial judge received notice of the complaint and relisted the matter for 28 July 2017 so as to inform the parties.
The plaintiff filed a motion on 10 August 2017 requesting that the trial judge recuse herself from hearing the matter.
Recusal motion
The motion to recuse was heard on 24 August 2017; the same day the part heard hearing was listed to resume. Following the conclusion of argument on the application, the trial judge said:
“…I’ll need to think about it and I’ll need to reserve. But I think what we should do is bat on, because we’re where we are in the interim.”
Senior counsel for the plaintiff submitted that rather than “bat on”, her Honour should first determine the recusal application. He indicated that in the event that the application failed, he anticipated receiving instructions to seek leave to appeal. As such, he submitted that the trial ought to stop and that the parties needed a decision before the resumption of evidence.
Her Honour ultimately determined to resume the hearing on 28 August 2017, over the plaintiff’s objection.
On 25 August 2017, the applicant filed a summons seeking leave to appeal against that determination.
Appeal against the determination
The plaintiff’s application relied on the High Court decision in Michael Wilson & Partners Ltd v Nicholls.[1]
In that case, the Court noted the well-established principle that “a party to civil proceedings may waive an objection to a judge who would otherwise be disqualified on the ground of actual bias or reasonable apprehension of bias”.[2] In such cases, “it may be that an applicant who does not seek to challenge the refusal by seeking leave to appeal should be held to have given up the point”.[3]
Relying on the reasoning in Michael Wilson & Partners, the plaintiff in the present case contended that had he not brought the present application, he may be taken to have waived his objection.
The defendant submitted that the decision in Michael Wilson & Partners is distinguishable as in the present case her Honour had not yet determined the application, whereas in Michael Wilson & Partners the recusal application had already been refused.
Decision
To the defendant’s submission, McCallum AJA ruled that “in substance…her Honour is proceeding as if the application either had not been made or is to be refused”. As such, consistent with Michael Wilson & Partners, “if the applicant is right in asserting the existence of a reasonable apprehension of bias (which has not yet been determined), the whole of the expense and use of Court time expended in hearing the matter will have been wasted”.
McCallum AJA noted the fundamental principle is that “where there exists a basis on which a judicial officer should recuse himself or herself, that judicial officer lacks authority to hear the case…It is clear…that her Honour did not consider the application to be flippant; if that were the case, her Honour would presumably have dismissed it immediately rather than reserving her decision”.
McCallum AJA concluded that the hearing of the proceedings should be stayed pending determination of the appeal and the evidence should not proceed until the application has been determined.
[1] (2011) 244 CLR 427; [2011] HCA 48
[2] ibid at [76] per Gummow A-CJ, Hayne, Crennan and Bell JJ
[3] ibid at [79]