COURTS AND JUDGES – bias – application for recusal – application declined – judge commented on role of plaintiff’s expert at conclave – comments made during preliminary discussion as to amended pleading – whether a fair-minded lay observer might think judge might have pre-judged credibility of witness
APPEALS – jurisdiction – appeal from “judgment or order” – refusal of a recusal application – application for disqualification made orally without notice of motion – whether refusal was a “judgment or order
WORDS AND PHRASES — “judgment or order” – “fair-minded lay observer”
[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.
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AGLC
Polsen v Harrison [2021] NSWCA 23
Case
[2021] NSWCA 23
Decision Date
CaseChat Overview and Summary
Polsen v Harrison concerned an application for the recusal of a judge, which was refused by the primary judge. The applicant, Polsen, sought to appeal this refusal. The dispute centred on comments made by the judge during a preliminary discussion regarding an amended pleading. Polsen argued that these comments, which touched upon the role of his expert witness at a conclave, might lead a fair-minded lay observer to apprehend that the judge had pre-judged the credibility of that witness.
The appeal raised two primary legal issues for the Court of Appeal. Firstly, it had to determine whether the refusal of an oral application for recusal, made without a formal notice of motion, constituted a "judgment or order" within the meaning of the relevant appeal provisions, thereby conferring jurisdiction on the Court of Appeal. Secondly, and contingent on jurisdiction, the Court had to consider whether the primary judge's comments gave rise to a reasonable apprehension of bias, assessed from the perspective of a fair-minded lay observer.
The Court of Appeal held that the refusal of the recusal application, even though made orally and without notice of motion, was an "order" from which an appeal lay. On the merits, the Court found that the comments made by the primary judge, viewed in their context, did not demonstrate a pre-judgment of the expert's credibility. The judge's remarks were made during a discussion about the proposed amended pleading and the role of the expert in a conclave, and the Court concluded that a fair-minded lay observer would not apprehend bias from these exchanges.
Consequently, leave to appeal was granted, but the appeal itself was dismissed with costs.