Dragan Markisic & Anor v United States of America & Anor

[2006] NSWSC 973

CITATION:	Dragan Markisic & Anor v United States of America & Anor [2006] NSWSC 973
HEARING DATE(S):	18 September 2006
JUDGMENT DATE :	18 September 2006
JUDGMENT OF:	Latham J
EX TEMPORE JUDGMENT DATE:	09/18/2006
DECISION:	Application is refused
CATCHWORDS:	Interlocutory proceedings - application by plaintiffs for disqualification on grounds of apprehended bias.
CASES CITED:	Edna v Official Trustee (2000) 205 CLR 337
PARTIES:	Plaintiff 1 - Dragan Markisic Plaintiff 2 - Oliver Markisic Defendant 1 - United States of America Defendant 2 - Commonwealth of Australia
FILE NUMBER(S):	SC 20286/04
COUNSEL:	Plaintiff 1 - Self-represented Plaintiff 2 - Self-represented Defendant 1 - Mr Sturzaker Defendant 2 - D Robinson SC
SOLICITORS:	Plaintiff 1 - Self-represented Plaintiff 2 - Self-represented Defendant 1 - Gadens Lawyers Defendant 2 - Australian Government Solicitor

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

LATHAM J

18 September 2006

20286/04 DRAGAN MARKISIC & ANOR v USA & Anor

JUDGMENT - Re Application for her Honour’s disqualification

1 When the matter came before me this morning for mention prior to fixing a time for the hearing of the application, the plaintiffs jointly made an application that I disqualify myself on the ground of apprehended bias. I understand that there is no allegation of actual bias, but that the apprehension of bias arises because of my office as a judge of this Court and the treatment which the plaintiffs claim to have received at the hands of Registrar Howe this morning.

2 In addition, the plaintiffs have rightly brought to my notice the fact that as counsel before my appointment to the District Court of New South Wales, I appeared as Crown Prosecutor, Crown Advocate and was instructed by the State of New South Wales and the Director of Public Prosecutions on many occasions. The plaintiffs have on prior occasions sued the State of New South Wales, and it is asserted that I may not be able to bring my impartial mind to bear upon the issues in this matter.

3 I should state at the outset that I know nothing, or at least very little, of the nature of the substantive proceedings before me.

4 The starting point, according to the majority judgment in Edna v Official Trustee (2000) 205 CLR 337 at 345, is firstly the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits; secondly, there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The application of the principle does not arise unless those two preliminary stages have been addressed.

5 As for the first of those matters, I do not regard the identification of my role in my former capacity as a Crown Prosecutor or as the representative of the Attorney General of this State as a sufficient basis for giving rise to the principle of apprehended bias. There is no satisfactory identification by the plaintiffs of what it is that may lead me to decide the case other than on its merits.

6 As to the second basis, there is no logical connection between the basis of the apprehended bias articulated above and the feared deviation from the course of deciding the case on its merits. My principal experience as counsel instructed by the State of New South Wales was almost exclusively in criminal matters. I am presently sitting in the Civil Jurisdiction of this Court and accordingly I am unable to see any logical connection between my former role and an apprehension of bias; nor can I begin to understand the basis of the application, given that it partly rests on the approach to the matter taken by Registrar Howe this morning. I know nothing of the circumstances of those proceedings and therefore I see no basis upon which I might be influenced in hearing the substantive matter.

7 It remains simply to state that there is no basis upon which a fair minded person might reasonably apprehend that I could not bring an impartial mind to the resolution of the questions involved in these proceedings. Accordingly, the application is refused.

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