Markan v Bar Association of Queensland (No 2)

The applicant in this proceeding, Peter Markan, has brought an application against the Bar Association of Queensland, seeking to have this court disqualify the judge hearing the case on the ground of apprehended bias. The applicant, who represents himself, filed a claim against the Bar Association on 4 February 2013. The Bar Association subsequently filed an application seeking, amongst other things, that the claim be struck out and an extension of time to file a defence. The application was adjourned, and the matter was heard on 17 April 2013. The judge hearing the matter, Atkinson J, refused to disqualify himself from hearing the case. The applicant has appealed this decision and sought a stay of the decision pending the appeal. The court was required to decide whether to grant a stay of the decision to disqualify the judge. The court considered the grounds of appeal, the likelihood of success of the appeal, and whether there was any prejudice to the Bar Association in proceeding with the matter. The court found that the appeal had little prospect of success and that there was no sufficient prejudice to the Bar Association to warrant a stay. The court refused the stay and the application was heard. Atkinson J held that the appeal against the decision to not disqualify himself had virtually no prospect of success, and therefore, it was not appropriate to grant a stay. The court relied on the High Court’s decision in Ebner v Official Trustee, which held that it was appropriate for a judge to determine a challenge to their own impartiality. The court found that the applicant had not provided any evidence to support the claim of bias and that the appeal had no merit. The court also considered the prejudice to the Bar Association if the matter was stayed, and found that the application should proceed as it had been on foot for some time and the defendant was entitled to have its application heard. The court concluded that there was no sufficient prejudice to the Bar Association to warrant a stay.