AZ v The Age [No 2] - [2013] VSC 436

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 00518 of 2011

AZ (A PERSON UNDER A DISABILITY WHO SUES BY HER LITIGATION GUARDIAN BZ)	Plaintiff
v
THE AGE	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	19, 20, 21, 22, 23, 26, 27, 29, 30 November and 3, 4, 5, 6, 12 December 2012
DATE OF JUDGMENT:	12 September 2013
CASE MAY BE CITED AS:	AZ v The Age [No 2]
MEDIUM NEUTRAL CITATION:	[2013] VSC 436

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COURTS AND JUDICIAL SYSTEM – Plaintiff applied for disqualification of trial judge sitting alone on grounds of apprehended bias – Common law negligence proceeding – Application made on the basis of the accumulative effect of a multitude of matters – Whether the fair-minded lay observer would apprehend bias – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Tobin SC Ms B Knoester	Adviceline Injury Lawyers
For the Defendant	Mr J Rush QC Mr N Rattray	Wisewould Mahony

TABLE OF CONTENTS

Introduction

Applicable Principles

The Substance of the Apprehended Bias Application

Discharging Witnesses

The Transcript

Requirement that Opening Submissions and a Witness Outline be Provided

The Transcript

Reactions to Witnesses

The Plaintiff’s Evidence and State of Health

The Opening Submissions
The Plaintiff’s Health
Discussion relating to The Plaintiff’s Evidence
Proposal that the Litigation Guardian Remain Outside the Room
Comments Prior to the Plaintiff Giving Evidence
Submissions of the Plaintiff in Support of the Fourth Point

Prejudgment of Issues in the Case during Opening Submissions

Discussion During the Opening
Submissions of the Plaintiff in Support of the Fifth Point

The Strike Out Application

“Model Litigant” Comment
Awareness of the Peer Support Workshop Document

Time Allowances

Commencement of the Trial
Fourth Day of the Trial
Sixth Day of the Trial

Objections and Narrowing Evidence

Mr Tippet’s Evidence
Ms Jackson’s Evidence
Ms McMahon’s Evidence
Mr David Cooper’s Evidence
Professor Embleton’s Evidence
Exchanges relating to Photographs Taken by The Plaintiff

Discovery During Trial

Discrete Comment Made as to the Plaintiff’s Evidence

Reasons for Dismissing the Application

Civil Procedure Act 2010

The Ten Points

Conclusion

HER HONOUR:

Introduction

On 4 December 2012, on the 11^th day of a 14 day trial and before the defendant called its final witness, senior counsel for the plaintiff made an application that I excuse myself from further hearing the proceeding on the ground of apprehended bias.

The matters relied upon by counsel for the plaintiff in support of the application were summarised as ‘my demeanour’. ‘My demeanour’ embraced a multitude of matters, specifically in relation to the plaintiff’s witnesses and generally throughout the case, including the way in which I appeared to be listening to and open to the evidence that was being given; whether I listened to the evidence of the plaintiff’s witnesses in the same way that I listened to the defendant’s witnesses; how I accepted and responded to the evidence of the witnesses; whether I appeared to be paying attention to the evidence; how I reacted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AZ v The Age [No 2]

Details

AGLC: AZ v The Age [No 2] [2013] VSC 436
Case: [2013] VSC 436
Decision Date: 12 September 2013

CaseChat Overview and Summary

The case of AZ v The Age [No 2] involved a plaintiff who sought to have the trial judge disqualified from hearing a common law negligence proceeding. The plaintiff's application was grounded on the notion of apprehended bias, citing an accumulation of various matters that led to the perception that the judge might not be impartial. The case was heard in the Federal Court of Australia, which had to determine whether the fair-minded lay observer, having the knowledge the observer should have, would apprehend bias in the judge's potential handling of the case.

The legal issues at hand centred on the interpretation and application of the test for apprehended bias in judicial proceedings. Specifically, the court had to evaluate if the plaintiff's concerns were sufficient to establish a reasonable apprehension of bias. This involved assessing whether the accumulated matters were substantial enough to suggest partiality or prejudice on the part of the judge. The court was required to balance the plaintiff's right to a fair trial with the principle of judicial independence and the need for efficient judicial processes.

In its decision, the court meticulously reviewed the materials presented by the plaintiff and considered the cumulative effect of the matters alleged. It concluded that the fair-minded lay observer, informed about the relevant matters, would not apprehend bias in the judge's impartiality. The court found that the plaintiff's application did not meet the threshold for disqualification, as the matters presented did not create a reasonable apprehension of bias. Consequently, the application was dismissed, and the judge was allowed to proceed with the trial. The court's reasoning emphasised the importance of maintaining the integrity of the judicial process while ensuring that any apprehensions of bias are substantiated by evidence meeting the required standard.

Orders