O'Shanassy v Turland

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District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: O’Shanassy v Turland [2021] NSWDC 269
Hearing dates: 18 June 2021
Date of orders: 22 June 2021
Decision date: 22 June 2021
Jurisdiction:Civil
Before: Scotting DCJ
Decision:

(1)   I disqualify myself from hearing the proceedings.

(2)   The hearing date of 2 August 2021 is confirmed.

(3)   The parties are to file a Joint Statement of Issues on or before 5pm on 12 July 2021.

(4)   The parties are to file and serve an index to their tender bundles on or before 5pm on 12 July 2021.

(5)   The parties are to file (2 copies) and serve their tender bundles on or before 5pm on 16 July 2021.

(6)   The plaintiff is to file and serve a chronology on or before 5pm on 23 July 2021.

(7)   The parties are to file and serve an outline of submissions on or before 5pm on 23 July 2021.

Catchwords:

COURTS AND JUDGES — Bias — Apprehended bias - Disqualification

Cases Cited:

Chamoun vDistrict Court of New South Wales [2018] NSWCA 187

Gair and Turland v Greenwood [2020] NSWDC 586

Category:Procedural rulings
Parties: Paul O’Shanassy (Plaintiff)
Gary Turland (Defendant)
Representation:

Counsel: R Rasmussen (Plaintiff)
T Senior (Defendant)

Solicitors: Agility Legal (Plaintiff)
RGSLAW (Defendant)
File Number(s): 2017/384953
Publication restriction: None

Judgment

Introduction

  1. On 1 October 2020 I made orders in favour of the defendant in proceedings brought by him for defamation and arising from his conduct as an elected councillor of Wingecarribee Shire Council, in Gair and Turland v Greenwood [2020] NSWDC 586 (Greenwood).

  2. The plaintiff in these proceedings seeks an order that I disqualify myself on the basis of apprehended bias.

  3. The matter is listed for hearing commencing on 2 August 2021 with a 5 day estimate.

Factual background

  1. In Greenwood, Mr Turland was awarded damages for defamation over a series of defamatory publications suggesting that he was a corrupt councillor. The matter proceeded as an assessment of damages after the Defence was struck out for failure to comply with court orders. The assessment was undertaken by reference to Mr Turland’s affidavit evidence and he was not cross-examined.

  2. The present proceedings are a claim for defamation by the plaintiff arising from the words published by Mr Turland at Council meetings that were later published in the local media.

Relevant law

  1. The test for apprehension of bias is eloquently set out in Chamoun v District Court of New South Wales [2018] NSWCA 187 at [35]-[40], as follows:

35.   The test for determining whether a judge is disqualified by reason of the appearance of bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]; Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31].

36.   The test of…

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Details
Case
[2021] NSWDC 269
Decision Date

CaseChat Overview and Summary

The case of O'Shanassy v Turland was brought before the court, with the plaintiff, O'Shanassy, seeking a determination on certain legal issues against the defendant, Turland. The nature of the dispute was primarily focused on allegations of apprehended bias against the presiding judge. The hearing took place in an Australian court, where the plaintiff argued that the judge had a potential bias that could affect the fairness of the proceedings.

The primary legal issue before the court was whether the judge should be disqualified from hearing the case due to the apprehension of bias. This issue was critical as it directly impacted the fairness and integrity of the judicial process. The court had to carefully consider the arguments presented by both parties and determine whether there were any grounds for the apprehension of bias.

The court, after examining the arguments and evidence presented, found that there were sufficient grounds to disqualify the judge from hearing the case. The decision was made to ensure that the proceedings would be conducted in a fair and impartial manner. The court confirmed the hearing date and provided specific procedural orders for the parties to follow, including the filing of various documents and outlines of submissions.

The final orders of the court included the disqualification of the judge from hearing the proceedings, the confirmation of the hearing date, and the imposition of specific deadlines for the filing and serving of documents by the parties. These orders were designed to ensure that the case would proceed in an orderly and fair manner, despite the initial issue of bias.

Orders

Orders of the court

(1) I disqualify myself from hearing the proceedings.

(2) The hearing date of 2 August 2021 is confirmed.

(3) The parties are to file a Joint Statement of Issues on or before 5pm on 12 July 2021.

(4) The parties are to file and serve an index to their tender bundles on or before 5pm on 12 July 2021.

(5) The parties are to file (2 copies) and serve their tender bundles on or before 5pm on 16 July 2021.

(6) The plaintiff is to file and serve a chronology on or before 5pm on 23 July 2021.

(7) The parties are to file and serve an outline of submissions on or before 5pm on 23 July 2021.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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