Bezer v Bassan

The applicant, Bezer, sought leave to appeal against a decision of a District Court judge who had continued to hear evidence in a part-heard matter after reserving her decision on an application for her disqualification on the grounds of apprehended bias.

The central legal issue before the Court of Appeal was whether the trial judge erred in law by proceeding with the hearing of evidence after the application for disqualification had been made and the judge had reserved her decision on that application.

McCallum AJA considered the principles governing apprehended bias and the proper procedure when such an application is made. The Court determined that the applicant had an arguable case that the judge’s conduct in continuing the hearing while the bias application was pending might give rise to a perception of apprehended bias, thereby potentially undermining the fairness of the proceedings. The Court noted that the judge’s decision to proceed with hearing evidence, rather than awaiting the determination of the disqualification application, was a critical point of contention.

The Court of Appeal ordered that the proceedings in the District Court be stayed pending the determination of the application for leave to appeal or the delivery of the trial judge’s reserved judgment on the application to disqualify herself. The costs of this application were to be costs in the appeal.