Mohareb v Palmer

Mohareb (the applicant) sought the recusal of Basten JA from hearing an appeal concerning an order that declared the applicant's proceedings to be vexatious. The dispute arose from the applicant's contention that the presiding judge's prior involvement in related matters created a reasonable apprehension of bias.

The central legal issue before the Court of Appeal was whether there was a reasonable apprehension of bias on the part of Basten JA, necessitating his recusal. This required the court to consider the impact of the judge's previous participation in a leave application and an earlier appeal, both of which had been characterised as vexatious, and the reliance on a transcript from those proceedings.

Basten JA dismissed the recusal application, finding that the applicant had not established a reasonable apprehension of bias. His Honour reasoned that the prior decisions were made on the merits of the applications before the court, and that the characterisation of proceedings as vexatious was a necessary part of the judicial function in such circumstances. The mere fact of having previously considered applications that were ultimately found to be vexatious did not, in itself, give rise to an apprehension of bias in the current appeal. The court noted that the applicant's reliance on a transcript and the conduct of another member of the earlier court did not alter this conclusion.

The Court of Appeal ordered that the applicant's recusal application be dismissed.