Polsen v Harrison

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.