Registrar, Supreme Court of Norfolk Island v Walsh (No 2)

[2017] NFSC 2

SUPREME COURT OF NORFOLK ISLAND

Registrar, Supreme Court of Norfolk Island v Walsh (No 2) [2017] NFSC 2

File number:	SC 2 of 2016
Judge:	BESANKO CJ
Date of judgment:	10 April 2017
Legislation:	Legal Profession Act 1993 (NI) s 21
Cases cited:	Registrar, Supreme Court of Norfolk Island v Walsh [2016] NFSC 1
Date of hearing:	10 April 2017
Registry:	Norfolk Island
Category:	No Catchwords
Number of paragraphs:	3
Counsel for the Applicant:	Mr A Eskerie of Sparke Helmore
Counsel for the Respondent:	Mr A Hands
Solicitor for the Respondent:	Mr D Nelson

ORDERS

SC 2 of 2016

BETWEEN:

REGISTRAR OF THE SUPREME COURT OF NORFOLK ISLAND

Applicant

AND:

JOHN WALSH OF BRANNAGH

Respondent

JUDGE:	BESANKO CJ
DATE OF ORDER:	10 APRIL 2017

THE COURT ORDERS THAT:

1.The matter be referred to another judge of this Court.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO CJ:

1. This is an application for me to disqualify myself for apprehended bias.  The application is made by the respondent.  The respondent is a practitioner in the Norfolk Island jurisdiction.  He is facing disciplinary proceedings in the inherent jurisdiction of the Court, under s 21 of the Legal Profession Act 1993 (NI).  The Registrar of the Court is the complainant and the applicant.  Justice Gilmour has previously rejected an application by the respondent for the proceeding to be struck out as an abuse of process (Registrar, Supreme Court of Norfolk Island v Walsh [2016] NFSC 1). The matter is listed for hearing today and for the first time the respondent has appeared by counsel. The respondent did not take the opportunity I afforded him, by order made on 15 December 2016, to file an outline of opening submissions.

2. Counsel for the respondent is in the course of cross-examining the Registrar, and is pursuing a line of cross-examination to the effect that the respondent is being “prosecuted” when other practitioners are not.  This is a line of inquiry which may well prove irrelevant and, subject to how far it goes, without any substance.  However, I do not think that I can say that, at this particular point, such that I should uphold the applicant’s objection to it.  In the course of the evidence, the Registrar said that he spoke to me and then issued the application.  Counsel for the respondent said that I should disqualify myself because of apprehended bias. 

3. On the one hand, I think the fact that the Registrar spoke to the Chief Justice about a complaint in a jurisdiction where the only proceeding that can be instituted, is a proceeding in the Court, is entirely neutral.  On the other hand, there is force in the submission that the fact becomes part of the events under consideration.  I have hesitated a great deal about this application, but in the end I have decided that there is a sufficient apprehension of bias for me to disqualify myself.  The matter will be listed before another judge of the Court, and the parties will be advised accordingly.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Besanko.

Associate:        

Dated:        26 April 2017