Judicial Disqualification Resource Center

Australia

Judicial Recusal & Disqualification in Australia

kangaroo 1In Australia, as elsewhere in the former British Commonwealth of Nations, a judge is subject to disqualification for actual bias. See, e.g., Judicial Commission of New South Wales, Civil Trial Bench Book 1-0010. In addition, Australian judges may be disqualified for “apprehended” bias. See, e.g., Johnson v Johnson (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.

The Johnson v. Johnson test for “apprenhended” bias was applied in a fairly recent (Dec. 2011) High Court of Australia case, Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48 – an appeal which raised the question of whether the judgment entered for the appellant at trial in the Supreme Court of New South Wales should have been set aside (as it was by the Court of Appeal) “because a fair-minded lay observer might reasonably have apprehended, from what had occurred in several interlocutory applications made before trial by the appellant without notice to the respondents, that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues in the trial?” In the course of deciding that there had not been “a reasonable apprehension that the trial judge was biased,” the High Court noted that it had previously been established, by a series of decisions of that Court, that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias is “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.” Id. At 31. The Court went on to emphasize that, because the proper test is an objective one, founded in the need for public confidence in the judiciary – “and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues” – “it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias.” Id. at 33.

In New South Wales, and presumably in the rest of Australia, “[p]resent authority supports the proposition that an application for disqualification can be made without the filing of a formal motion” [see, e.g., Bainton v Rajski (1992) 29 NSWLR 539], although “there have been instances where a motion has been presented.” Judicial Commission of New South Wales, Civil Trial Bench Book 1-0030 (“Such authority also supports the view that such an application should be determined by the judge whose disqualification is sought, and should not involve a contest on the facts”), citing, inter alia, Wentworth v Graham [2003] NSWCA 240.

REFERENCES:

1. To review a law article by a Monash Univesity Law Professor reviewing decisions on a “Judge’s Qualificaiton to Sit” which were rendered prior to 1999 click here

2. To review the Supreme Court of Western Australia’s “Guide to Judicial Conduct” (Second Edition, 2007) click here

3. For a comprehensive overview of American law on the subject of recusal and disqualification which is updated annually see Flamm, R., Judicial Disqualification: Recusal and Disqualification of Judges (Second Edition 2007) . A number of Australian libraries have the most recent edition of Judicial Disqualification in their collection. To locate them click here