Heinrich, Ex parte - Re Justice Heerey

This matter concerned an application by Mr Heinrich for an order of prohibition directed to Justice Heerey, a judge of the Federal Court of Australia. The application arose from proceedings in the Federal Court concerning alleged contraventions of the Trade Practices Act 1974 (Cth) (now the Competition and Consumer Act 2010 (Cth)).

The central legal issue before the Court was whether Justice Heerey had demonstrated a reasonable apprehension of bias, thereby disqualifying him from continuing to hear the proceedings. This apprehension was alleged to arise from certain communications between Justice Heerey and the Australian Competition and Consumer Commission (ACCC), which was a party to the proceedings.

Kirby J, sitting in chambers, considered the principles governing apprehended bias. His Honour noted that the test is whether a fair-minded lay observer, knowing the facts, would have a reasonable apprehension that the judge might not bring an impartial mind to the issues to be decided. After reviewing the correspondence and the context in which it occurred, Kirby J concluded that the communications, while perhaps imprudent, did not give rise to a reasonable apprehension of bias. His Honour found that the communications were directed towards procedural matters and did not indicate any pre-judgment of the substantive issues in dispute.

Consequently, the application for prohibition was dismissed.