GJ v AS (No 2) - [2015] ACTCA 18

HUMAN RIGHTS ACT
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	GJ v AS (No 2)
Citation:	[2015] ACTCA 18
Hearing Dates:	8 May 2015
DecisionDate:	8 May 2015
Delivery of ReasonsDate:	3 August 2015
Before:	Refshauge J
Decision:	The application that the Honourable Justice Refshauge disqualify himself from hearing the appeal is dismissed.
Category:	Principal Judgment
Catchwords:	APPEAL – Application for the disqualification of a judge – Allegation of bias – Reasonable apprehension of bias – Claimed association too remote as to constitute bias – Participation in the making of the rules of the court – Judge’s involvement in case management – Accepting an address for service
Legislation Cited:	Court Procedures Act 2004 (ACT), ss 9, Pt 11 Domestic Violence and Protection Orders Act 2001 (ACT), Pt 3 Family Law Act 1975 (Cth), s 123 Family Law Amendment Act 1983 (Cth), s 75 Human Rights Act 2004 (ACT), s 21(1) Magistrates Court Act 1930 (ACT), Pts 3.10, 4.5 Supreme Court Act 1933 (ACT), s 37E Court Procedures Rules 2006 (ACT), rr 4, 5051, Pt 5.4, Table 5051
Cases Cited:	Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority (ACT) (2008) 2 ACTLR 44 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 GJ v AS (2014) 288 FLR 152 GJ v AS [2015] ACTCA 12 GJ v AS [2015] ACTSC 66 Harrington v Lowe (1996) 190 CLR 311 In the Marriage of Lowe & Harrington (1995) 125 FLR 19 Ramadan v New South Wales Insurance Ministerial Corporation (Unreported, NSW Court of Appeal, Kirby P, Cole JA and Rolfe AJA, CA 40528/94, 7 April 1995) Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 Roberts v Rhodes [2014] ACTCA 20 Smits v Roach (2006) 227 CLR 423
Texts Cited:	John Tarrant in Disqualification for Bias (The Federation Press: Sydney, 2012)
Parties:	GJ (Appellant) AS (Respondent)
Representation:	Counsel GJ (Self-Represented) (Appellant) Mr S Malcolmson (Respondent)
Solicitors Self-Represented (Appellant) Eaton Lawyers (Respondent)
File Number(s):	ACTCA 42 of 2014
Decision under appeal:	Court: ACT Supreme Court Before: Penfold J Date of Decisions: 11 August 2014 and 18 March 2015 Case Title: GJ v AS Court File Number: SCA 22 of 2012

REFSHAUGE:

The appellant, GJ, has commenced an appeal against decisions of Penfold J in GJ v AS (2014) 288 FLR 152; [2014] ATSC 189 and GJ v AS [2015] ACTSC 66.

The bench assembled for the appeal originally consisted of Burns J, Rangiah J and myself. At a directions hearing, both GJ and counsel for AS pointed out that Burns J had been involved in the proceedings in the Magistrates Court when his Honour had been Chief Magistrate. His Honour agreed not to sit and was replaced by Walmsley AJ.

About two weeks before the appeal was to be heard, GJ sent an email to my Associate foreshadowing a request that I disqualify myself. I was just…

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 GJ v AS (No 2)

Details

AGLC: GJ v AS (No 2) [2015] ACTCA 18
Case: [2015] ACTCA 18
Decision Date: 8 May 2015

CaseChat Overview and Summary

The applicant, GJ, sought the disqualification of Refshauge J from hearing an appeal on the grounds of a reasonable apprehension of bias. The alleged bias stemmed from the judge's perceived association with the respondent, AS, and his prior involvement in the making of court rules, case management, and accepting an address for service.

The central legal issue before the court was whether the applicant had established a reasonable apprehension of bias on the part of Refshauge J, necessitating his disqualification from the appeal. This required an examination of the nature and remoteness of the alleged associations and the judge's conduct in relation to the court's processes.

Refshauge J reasoned that the claimed associations were too remote to give rise to a reasonable apprehension of bias. His Honour found that the judge's participation in the making of court rules, involvement in case management, and acceptance of an address for service did not demonstrate any actual or perceived partiality towards the respondent. The court applied the objective test for apprehended bias, considering whether a fair-minded and informed observer would perceive a lack of impartiality.

The application that the Honourable Justice Refshauge disqualify himself from hearing the appeal was dismissed.

Orders

Orders of the court

The application that the Honourable Justice Refshauge disqualify himself from hearing the appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.