Eastman v Besanko - [2009] ACTSC 144

EASTMAN v BESANKO
[2009] ACTSC 144 (23 October 2009)

PRACTICE AND PROCEDURE – application by appellant to a member of a Full Court to disqualify himself from sitting on the hearing of his appeal for reason of his ‘opening comments regarding lack of evidence’ for the continuation of an order in respect of the manner in which the appellant should be detained at the Australian Capital Territory prison during the hearing of the appeal.

The judge declined to recuse himself.

Livesey v New South Wales Bar Association (1983) 151 CLR 288
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 429
Barton v Walker (1979) 2 NSWLR 740

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 4 of 2009
No. SC 362 of 2008

Judge: Graham J
Court of Appeal of the Australian Capital Territory
Date: 23 October 2009

IN THE SUPREME COURT OF THE     )          No. ACTCA 4 of 2009
  )          No. SC 362 of 2008
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DAVID HAROLD EASTMAN
Appellant

AND:THE HONOURABLE JUSTICE ANTHONY JAMES BESANKO
Respondent

AND:ATTORNEY-GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY
Intervenor

Judge:  Graham J
Date:  23 October 2009
Place:  Canberra

Graham J declined to recuse himself in response to an application by the appellant that he do so.

IN THE SUPREME COURT OF THE     )          No. ACTCA 4 of 2009
  )          No. SC 362 of 2008
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DAVID HAROLD EASTMAN
Appellant

AND:THE HONOURABLE JUSTICE ANTHONY JAMES BESANKO
Respondent

AND:ATTORNEY-GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY
Intervenor

Judge:  Graham J
Date:  23 October 2009
Place:  Canberra

REASONS FOR DECISION

GRAHAM J:

An application has been made by the appellant that I recuse myself from further participating in the hearing of his appeal from a decision of Edmonds J given on 18 February 2009 under the Administrative Decisions (Judicial Review) Act 1989 (ACT).

The basis on which it is put that I should recuse myself is that I allegedly made some ‘opening comments regarding lack of evidence’ for the continuation of an order apparently made by the Chief Justice, in respect of the manner in which the appellant should be detained at the Australian Capital Territory prison pending the commencement of the hearing of the appeal yesterday. An indication was given by the counsel for the second respondent on behalf of the Chief Executive Officer of the prison authority that the arrangement put in place as a result of the orders made by the Chief Justice would, in fact, be continued.

In Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 294 Mason, Murphy, Brennan, Deane and Dawson JJ said:

…[I]

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 Eastman v Besanko

Details

AGLC: Eastman v Besanko [2009] ACTSC 144
Case: [2009] ACTSC 144
Decision Date: 23 October 2009

CaseChat Overview and Summary

In the case of Eastman v Besanko, the appellant sought to challenge a decision made by the Full Court of the Federal Court regarding his detention conditions during an appeal hearing. The appellant, represented by counsel, argued that a member of the Full Court should be disqualified from the appeal hearing due to perceived bias stemming from comments made by the judge during an earlier stage of the proceedings. The application was brought before the Full Court itself, which was required to determine the validity of the appellant's claim of bias.

The central legal issue before the court was whether the comments made by the member of the Full Court during a previous hearing constituted grounds for disqualification based on the perceived imputation of bias. The court had to consider whether these comments were such that a fair-minded observer, having full knowledge of the relevant facts, might reasonably apprehend that the judge might not bring an impartial and unbiased mind to the determination of the appeal. The appellant's contention was that the judge's remarks indicated a pre-judgment of the appellant's case, thereby raising concerns about the judge's impartiality.

The court carefully examined the context and content of the judge's comments, ultimately concluding that they did not reach the threshold of bias. The court found that the comments were part of the judicial process, made in the context of assessing evidence and did not express any fixed opinion on the merits of the case. The Full Court held that the comments did not give rise to a reasonable apprehension of bias and dismissed the application. Consequently, the court upheld the order in question, maintaining the conditions for the appellant's detention during the appeal hearing.

Orders