Hoy v Hurst-Meyers - [2022] ACTSC 57

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Hoy v Hurst-Meyers
Citation:	[2022] ACTSC 57
Hearing Date(s):	22 March 2022
DecisionDate:	22 March 2022
Before:	Elkaim J
Decision:	See [6]
Catchwords:	CIVIL LAW – JUDICIAL BIAS – where the applicant makes an application that the judge recuse himself on the basis of judicial bias – no evidence of judicial bias – application dismissed
Cases Cited:	Charisteas v Charisteas [2021] HCA 29; 95 ALJR 824
Parties:	G Hoy ( Plaintiff) R Hurst-Meyers ( First Defendant) RHM Industries Pty Ltd ( Second Defendant)
Representation:	Counsel A Costin ( Plaintiff) Self-represented ( First and Second Defendants)
Solicitors Elringtons ( Plaintiff) Self-represented ( First and Second Defendants)
File Number(s):	SC 383 of 2019

Elkaim J

In this matter, the first defendant on behalf of himself and the second defendant has made an application that I recuse myself on the basis of judicial bias.

The test for judicial bias is based on what an independent observer sitting in a court would observe. As observed by Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ in Charisteas v Charisteas [2021] HCA 29; 95 ALJR 824:

11The apprehension of bias principle is that “a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial - that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, “it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits”; and, second, there must be articulated a “logical connection” between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
12As five judges of this Court said in Johnson v Johnson, while the fair-minded lay observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice”.

The first defendant is self-represented and has some legal experience, although obviously is not a lawyer.

A number of his questions have been difficult to understand, or have been plainly inadmissible. I have been going out of my way to re-define the questions in order to make them intelligible both for my purposes, to decide the issues between the parties, and for the purpose of enabling the witness to answer the questions.

I have actually endeavoured to assist the first defendant to put his case forward. The first defendant chose…

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.

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Details

Case: [2022] ACTSC 57
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory heard an application from the first defendant, R Hurst-Meyers, on behalf of himself and the second defendant, RHM Industries Pty Ltd, requesting the judge, Elkaim J, to recuse himself on the basis of judicial bias. The plaintiff, G Hoy, was represented by counsel, while the defendants were self-represented. The legal issues before the court were whether the judge had exhibited any form of judicial bias, which could be perceived by a fair-minded lay observer, and if so, whether the application should be granted.

The court examined the test for judicial bias, which requires the identification of any matter that could lead a judge to decide a case other than on its legal and factual merits, and a logical connection between that matter and the apprehension of bias. The court considered the submissions and conduct of the first defendant, who had some legal experience but chose to be self-represented. The judge acknowledged that some questions posed by the first defendant had been difficult to understand or inadmissible but noted that they had endeavoured to re-define the questions to make them intelligible and assist the first defendant in putting their case forward. The court also highlighted that the first defendant had not relied on any affidavit or other evidence, and they had allowed the tendering of certain documents over objection to enable the case to be presented.

After reviewing the circumstances, the court concluded that there was no evidence of judicial bias, and the application was dismissed. The judge emphasised that the first defendant had not provided any substantive evidence or grounds to support the claim of bias. The court's decision was based on the principle that justice should both be done and be seen to be done, and the fair-minded lay observer would not reasonably apprehend that the judge might not bring an impartial mind to the resolution of the matter. The application for recusal was therefore rejected.

Orders