Day v Lerch

The appeal in Day v Lerch involved the appellant, Day, challenging the decision of the primary judge, Lerch, to dismiss an application that his Honour recuse himself from proceedings. The appeal was self-represented, with the primary issues being whether the primary judge should have recused himself due to bias and whether the summary judgment granted to the respondents was appropriate. Day argued that the primary judge displayed signs of bias and that the summary judgment should not have been granted due to factual disputes.

The court considered whether the primary judge’s conduct demonstrated bias and whether there were factual disputes sufficient to preclude summary judgment. The court found that although the primary judge's patience was tested, the fair-minded lay observer would understand the context of Day's conduct. Regarding the summary judgment, the court determined that the factual dispute over the employment termination date could only be resolved at trial and was thus inappropriate for summary judgment. The court also dismissed Day's application to adduce further evidence and her contentions regarding the publication of the judgment and the costs assessors.

The court concluded that the appeal against the dismissal of the application for recusal should be dismissed, while the appeal against the summary judgment should be allowed, and orders 3 and 4 made on 26 October 2017 were set aside. The parties were directed to file any submissions on the appropriate costs order, limited to two pages, within 14 days of the court's order.