Montenegro v Nguyen - [2025] TASSC 34

[2025] TASSC 34

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Montenegro v Nguyen [2025] TASSC 34
PARTIES:	MONTENEGRO, Cesar
v
NGUYEN, Nga Thi To
MONTENEGRO, Luis
FILE NO:	2333/2024
DELIVERED ON:	23 June 2025
DELIVERED AT:	Hobart
HEARING DATE:	10 June 2025
JUDGMENT OF:	Shanahan CJ
CATCHWORDS:

Courts and judges – Judges – Disqualification for interest or bias – Particular grounds – Bias by association or prior relationship – Appeal against Associate Judge’s refusal to recuse himself on basis of alleged apprehended bias where appellant contended a personal relationship between Associate Judge and respondent – Appellant’s allegation supported only by representations made by respondent in recorded phone call – Lack of evidentiary foundation supporting any apprehension of bias – Existence of relationship denied by Associate Judge – Appeal dismissed.

Aust Dig Courts and Judges [45]

Charisteas v Charisteas [2021] HCA 29, 273 CLR 289; Re JRL; Ex parte CJL (1986) 161 CLR 342; Laws v
Australian Broadcasting Tribunal (1990) 170 CLR 70, applied.

Appeal and new trial – Interference with discretion of court below – Particular cases – Control over proceedings – Other cases – Appeal against Associate Judge’s refusal to recuse himself on basis of purported failure by Associate Judge to afford appellant an opportunity to make submissions on recusal application – Associate Judge gave appellant every opportunity to be heard on question of recusal – Appeal dismissed.

Aust Dig Appeal and New Trial [59]

REPRESENTATION:

Counsel:

Appellant: In person
Respondents: In person

Judgment Number:	[2025] TASSC 34
Number of paragraphs:	81

Serial No 34/2025 File No 2333/2024

CESAR MONTENEGRO v NGA THI TO NGUYEN and LUIS MONTENEGRO

REASONS FOR JUDGMENT

SHANAHAN CJ

23 June 2025

1 The appellant, Cesar Montenegro, by notice of appeal dated 11 April 2025 appeals from the orders of his Honour Associate Justice Daly made on 2 April 2025. The respondents are Nga Thi To Nguyen and Luis Montenegro, Cesar Montenegro's father. None of the parties are legally represented, albeit the appellant indicated in the course of submissions that he was legally trained and was currently seeking re-admission.
2 This is an appeal from the associate judge in respect of an interlocutory judgment. Section 191B of the Supreme Court Civil Procedure Act 1932 (Tas) ("Act") provides:
"191B Effect of, and appeal from, orders of the Associate Judge

(1) Subject to the Rules of Court, any order or decision made or given by the Associate Judge sitting in chambers or in court in the exercise of a power conferred on him or her by this Act is as valid and binding on, and is enforceable in the same manner against, all parties concerned as an order or decision made or given by a judge sitting in chambers or in court.
(2) A party affected by an order or decision of the Associate Judge may, within such time as is prescribed by the Rules of Court and subject to any conditions so prescribed, appeal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Montenegro v Nguyen

Details

AGLC: Montenegro v Nguyen [2025] TASSC 34
Case: [2025] TASSC 34
Decision Date: 23 June 2025

CaseChat Overview and Summary

Montenegro v Nguyen involved a dispute before the Supreme Court of Australia. The appellant, Montenegro, sought to appeal against an Associate Judge's refusal to recuse himself on grounds of apprehended bias. Montenegro argued that the Associate Judge had a personal relationship with the respondent, Nguyen, which could lead to bias. The appeal hinged on whether the Associate Judge's refusal to recuse himself was justified in the absence of concrete evidence supporting the claim of bias.

The legal issues in this case centred on the criteria for disqualification of a judge due to apprehended bias. The court had to determine whether the mere allegation of a personal relationship between the Associate Judge and the respondent, without any evidentiary foundation, was sufficient to warrant the judge's recusal. Additionally, the court examined whether the denial of the existence of such a relationship by the Associate Judge influenced the decision to maintain the judge in the case.

The Supreme Court dismissed the appeal, ruling that the appellant's contention was not substantiated by any concrete evidence. The court emphasised that the mere allegation of bias based on a recorded phone call, without further substantiation, did not meet the threshold for disqualifying a judge. The Associate Judge's denial of any personal relationship with the respondent further supported the court's decision. Consequently, the appeal was unsuccessful, affirming the lower court's decision that the Associate Judge's recusal was not warranted.

Orders