Re Malley; [No 3]
[2015] WASCA 97
•15 MAY 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RE MALLEY; EX PARTE TEY [No 3] [2015] WASCA 97
CORAM: NEWNES JA
HEARD: 19 MARCH 2015
DELIVERED : 15 MAY 2015
FILE NO/S: CACV 137 of 2014
EX PARTE
KOK YONG TEY
Appellant
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :BEECH J
File No :CIV 2296 of 2014
Catchwords:
Practice and procedure - Recusal application - Apprehended bias - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Solicitors:
Appellant: In person
Case(s) referred to in judgment(s):
Re Malley; Ex Parte Tey [No 2] [2015] WASCA 96
Tey v Optima Financial Group Pty Ltd [2012] WASCA 192
Tey v Optima Financial Group Pty Ltd [No 3] [2012] WASCA 113
NEWNES JA: On 19 March 2015, on the hearing of a registrar's notice to attend to show cause why the appeal should not be dismissed, an issue arose as to whether I should recuse myself. The determination of the substantive matter is dealt with in Re Malley; Ex Parte Tey [No 2] [2015] WASCA 96, which will be published at the same time as these reasons.
The issue arose in the following way. In the course of the hearing, the appellant questioned my impartiality to hear the matter on the ground that I was a member of the court in Tey v Optima Financial Group Pty Ltd[No 3] [2012] WASCA 113, in which, in a statement at the end of our reasons, Pullin JA and I said that the papers in that matter would be referred to the Attorney‑General for consideration of an urgent application for an order against the appellant under s 4 of the Vexatious Proceedings Restriction Act 2002 (WA).
The appellant denied that she was asking me to recuse myself but as the appellant is unrepresented I treated it as such an application and refused it. I did so for the same reasons as I, together with Pullin JA, gave in Tey v Optima Financial Group Pty Ltd [2012] WASCA 192 [30] ‑ [33], when a similar application was made. It is unnecessary to repeat the reasons. Suffice it to say that nothing I said in Tey v Optima Financial Group Pty Ltd[No 3] was capable of giving rise to a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the resolution of the issues which arise in the current matter.
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