Leisemann v Cornack

The case of Leisemann v Cornack involved the applicant, Leisemann, who sought to disqualify the first respondent, a Magistrate, from presiding over a summary trial for an assault occasioning bodily harm charge. The applicant argued that the Magistrate's refusal to disqualify herself despite a reasonable suspicion of bias during the trial was improper. The dispute was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether a fair-minded lay observer might reasonably apprehend that the Magistrate might not bring an impartial mind to the resolution of the question committed to her, and whether the Magistrate’s refusal to disqualify herself constituted an administrative decision suitable for judicial review through prerogative writs. The court also needed to determine if there was any discretionary reason to refrain from intervening and whether an appeal could be brought to the District Court.

In reaching its decision, the court examined the conduct of the Magistrate during the trial, particularly focusing on the clashes between defence counsel and the Magistrate, and the emotional state of the complainant. The court concluded that the reasonable suspicion of bias was sufficient to warrant the Magistrate's disqualification. It found that a fair-minded lay observer might reasonably apprehend that the Magistrate might not bring an impartial mind to the resolution of the question. The court further held that the Magistrate's decision to refuse disqualification was of an administrative character and thus subject to judicial review. The court set aside the Magistrate's decision, prohibited her from continuing with the hearing, and remitted the case to the Magistrates Court for a de novo hearing before a different Magistrate.

The final orders of the court were that the Magistrate's decision made on 8 June 2011 be removed into the Supreme Court, set aside, and replaced with an order upholding the application for disqualification. The court also ordered that all necessary adjournments be entered and that the hearing be remitted to the Magistrates Court for a new hearing before a different Magistrate.