O'Shanassy v Turland

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

4. 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.

5. 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

6. 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…