James Bowers v Sara Bowers

[2021] NSWSC 72

Supreme Court

New South Wales

Medium Neutral Citation:	James Bowers v Sara Bowers [2021] NSWSC 72
Hearing dates:	11 February 2021
Date of orders:	11 February 2021
Decision date:	11 February 2021
Jurisdiction:	Equity - Expedition List
Before:	Sackar J
Decision:	See para 11
Catchwords:	COURTS AND JUDGES — Apprehended bias — Disqualification — Where application for disqualification dismissed
Legislation Cited:	n/a
Cases Cited:	Johnson v Johnson [2000] 201 CLR 488
Texts Cited:	n/a
Category:	Procedural rulings
Parties:	James Richard Bowers (plaintiff) Sara Louise Bowers (First defendant)
Representation:	Counsel: Self represented (plaintiff) Self represented (first defendant) Solicitors: Self represented (plaintiff) Bowers legal (plaintiff)
File Number(s):	2020/354233

Judgment – ex tempore

1. The plaintiff and the defendant are brother and sister and also litigants in person.

2. By summons dated 10 December 2020 the plaintiff seeks orders set out in 1 and 2 of the Summons.

3. By notice of motion also dated 12 December 2020 the plaintiff also sought expedition.

4. The matter first came before me in the Expedition List on 1 February 2021.

5. I determined I should deal with the matter expeditiously given the status of the parties and the scope of the issues raised in the proceedings.

6. The matter came back before me on 8 February 2021 for further directions. I directed the parties each to serve an outline of submissions and further evidence and I fixed the matter for hearing for an hour on 1 March 2021 at 9am.

7. During the directions hearing on 8 February the plaintiff informed the Court that he wished to make application that I disqualify myself. He had already filed submissions to that effect. By email to my Associate he also informed me specifically that he had complained about my conduct during the directions hearing on 1 February to the Judicial Commission of New South Wales. I will not comment further on that matter.

8. The test in relation to disqualification for apprehended bias is settled. There are many authorities but one will suffice. The plurality of the High Court in Johnson v Johnson [2000] 201 CLR 488 at [11]:

…It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.

9. It is submitted here that I have in effect pre-judged an issue in the proceedings and/or in some way denigrated the plaintiff by clarifying the suburb in Sydney in which he lives.

10. I have carefully considered the plaintiff’s written outline and his submissions. I am unable on the materials as disclosed by the transcript of the directions hearing to identify any basis upon which a fair minded lay observer might reasonably construe anything that I said as a denigration of the plaintiff or amounting to some pre judgment of any issue before the Court.

11. Therefore I am unable to accept the submission that I should disqualify myself and I would dismiss the application.

12. However so that this matter is neither delayed nor unduly side tracked, and in the interests of both parties, the matter will still proceed on 1 March as directed but before another Judge of the Division. The parties should as directed file their submissions and any further evidence accordingly, namely the plaintiff by 19 February and the defendant by 26 February. The parties will be notified before 1 March as to who that judge will be.

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Decision last updated: 11 February 2021