Qajar v Australian Human Rights Commission

In the case of Qajar v Australian Human Rights Commission, the applicant sought recusal of the primary Judge and leave to appeal from an interlocutory decision concerning the issuance of subpoenas and the production of documents. The dispute centred on the applicant's contention that the primary Judge should be recused due to apprehended bias arising from previous proceedings, and that leave to appeal was necessary to address the alleged injustice in the interlocutory decision. The primary Judge had previously refused the issuance of subpoenas and dismissed interlocutory applications related to the production of documents, finding that the evidence sought was not relevant to the substantive proceedings.

The legal issues before the court included whether the primary Judge was subject to apprehended bias, and whether the primary Judge's interlocutory decision was attended by sufficient doubt to warrant reconsideration. The court had to determine whether a fair-minded lay observer would apprehend a failure to bring an impartial mind to the determination of the applicant's application, and whether the decision of the primary Judge was subject to sufficient doubt to necessitate its reconsideration.

The court found that the apprehended bias was not substantiated, as there was no evidence to suggest that a fair-minded lay observer would apprehend a failure to bring an impartial mind to the determination of the applicant’s application. The court also found that the decision of the primary Judge was not attended by sufficient doubt to warrant reconsideration. The court held that the applicant's liberty was not affected by the interlocutory decision, and thus the requirement for leave to appeal was not dispensed with. The applicant's proposed grounds of appeal were deemed vague, unparticularised, and merely caviling with the decision of the primary Judge without identifying particular errors.

Accordingly, the court dismissed the applicant's applications for recusal and leave to appeal. The court ordered that the applicant pay the costs of the second and third respondents of and incidental to the recusal application and the leave to appeal application, such costs to be taxed if not otherwise agreed.