LAWRANCE v Commonwealth of Australia; and ORS

[2006] FMCA 1951

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LAWRANCE v COMMONWEALTH OF AUSTRALIA
& ORS [2006] FMCA 1951

HUMAN RIGHTS – Application for Federal Magistrate to stand aside because of apprehended bias – failure by applicant to establish a reasonable apprehension of bias – application dismissed.

Livesey v The New South Wales Bar Association [1983] 151 CLR 288.

Applicant: AROHA LAWRANCE

Respondent: THE COMMONWEALTH OF AUSTRALIA & ORS

File number: SYG 2109 OF 2006

Judgment of: Turner FM

Hearing date: 28 November 2006

Date of last submission: 28 November 2006

Delivered at: Sydney

Delivered on: 28 November 2006

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent: Ms J. Pownall (for the 1^st, 2^nd, 4^th, 5^th, and 6^th respondents).
Ms C. Tassone (for the 7^th respondent).
Mr D. Kemp (for the 3^rd respondent)

Solicitors for the Respondent: Australian Government Solicitor, NSW Crown Solicitor, Dibbs Abbott Stillman

ORDERS

1. The Court orders that the matter be adjourned to the further directions hearing which is set down for 19 February 2007;

2. The Court orders that the costs of this application be reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2109 of 2006

AROHA LAWRANCE

Applicant

And

THE COMMONWEALTH OF AUSTRALIA & ORS

Respondent

REASONS FOR JUDGMENT

1. This is an application by Aroha Lawrence filed 27 October 2006 asking that I remove myself from hearing the matter, as the applicant suspects that I am “not unprejudiced or impartial”.  The applicant relies on me having put a pen near my mouth in a hearing in this matter. 

2. The test of whether a judge is biased and should not continue to hear a case was set out in a case of Linsey v The New South Wales Bar Association [1983] 151 CLR 288, where their Honours Mason, Murphy, Brennan, Dean and Dawson JJ of the High Court in a joint decision stated at the bottom of page 293:

   The principle  is that a judge should not sit to hear a case if in all the circumstances the party or the public might entertain a reasonable apprehension that he might not bring an impartial or unprejudiced mind to the resolution of the questions involved in it. 

   Towards the middle of page 294:

   On the other hand, it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he would automatically disqualify himself whenever he was requested by one party to do so on the grounds of possible appearance of prejudgment or bias, regardless of whether the other party desired that the matter be dealt with by him as a judge to whom the hearing or the case has been entrusted by the ordinary procedures and practice of a particular Court.

3. The applicant has not alleged or established actual bias by me, nor has she established that she has a reasonable apprehension that I will be biased in determining her case.  The application is dismissed.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate: Sarah James

Date: 24 January 2007