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

1. 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. 

1. 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”.

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

1. 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.

1. I have actually endeavoured to assist the first defendant to put his case forward.  The first defendant chose not to rely on any affidavit or other evidence.  I have in fact allowed him to tender a number of documents over objection in order that his case can be put before the Court.

1. I do not accept that there has been any judicial bias. Accordingly, the application is rejected.

I certify that the preceding six [6] numbered paragraphs are a true copy of the Reasons for  Judgment of his Honour Justice Elkaim.

Associate:

Date: