Heywood v Local Court of New South Wales

The case of Heywood v Local Court of New South Wales involved a claim for a prerogative writ, specifically prohibition and certiorari, following the refusal by a Magistrate to disqualify himself from presiding over a case. The dispute arose due to the contentious interactions between the legal representatives of the accused and the Magistrate, including rude and bullying comments from the accused's counsel towards the police prosecutor, and a patronising tone directed at the Magistrate and the prosecutor. The accused's counsel also exhibited an overly sensitive reaction to objections and asked poorly framed questions during the cross-examination of a child. The application for the Magistrate's disqualification on the ground of apprehended bias was refused, leading to the claim for prerogative writs.

The court was required to determine whether the Magistrate's refusal to disqualify himself was legally sound and if the application for the writs was justified. The central legal issue was whether the Magistrate's conduct and the cumulative effect of the interactions with the legal representatives of the accused established apprehended bias. The court had to examine whether the test applied by the Magistrate for actual bias, rather than apprehended bias, was correct and whether the fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions the judge is to decide.

The court found that the Magistrate had applied the wrong test, articulating the test for actual bias rather than the test for apprehended bias. The court held that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions, given the circumstances. The "double might" test, which is a relatively low bar for apprehended bias, was established. Consequently, the court granted the application for prohibition and certiorari, finding that the Magistrate's refusal to disqualify himself was an error of law.

The final orders of the court were the grant of prohibition and certiorari, setting aside the Magistrate's refusal to disqualify himself and directing him to reconsider the application for his disqualification on the ground of apprehended bias. The court's decision underscored the importance of applying the correct legal test in cases involving allegations of apprehended bias.