DOQ17 v Australian Financial Security Authority (No 2)

In the case of DOQ17 v Australian Financial Security Authority (No 2), the applicant sought the recusal of the judge due to alleged bias stemming from an interlocutory decision. The primary issue before the court was whether the interlocutory ruling by the judge created a reasonable apprehension of bias. The applicant argued that the judge's refusal to allow an amendment to the pleadings and the addition of new respondents indicated a prejudgment that prejudiced the case against her.

The court meticulously examined the criteria for determining actual bias and the reasonable apprehension of bias. It noted that a finding of actual bias requires distinct allegations and clear proof, while an apprehension of bias hinges on whether a fair-minded lay observer would think the judge might not bring an open mind to the trial. The court found that the interlocutory ruling did not contain any credibility findings that suggested the judge had a fixed view on the case's ultimate issues. Instead, the ruling was based on legal and technical deficiencies in the proposed amendments.

Concluding that there was no logical connection between the interlocutory decision and any apprehension of bias, the court dismissed the application for disqualification. The court emphasized that interlocutory rulings alone do not typically create a reasonable apprehension of bias unless they imply a fixed view on the case's merits. The court also highlighted the importance of disregarding unfounded allegations and irrelevant submissions, which the applicant had made extensively. The final order was that the disqualification application was dismissed, and the applicant was directed to pay the respondents' costs.