Rowe v Bishop (NO. 1)

Case [2022] SADC 58

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

ROWE v BISHOP (NO. 1)

[2022] SADC 58

Reasons for Decision of his Honour Judge Slattery  

3 March 2022

COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS

The applicants in the proceedings and on this application seek orders that the trial judge should recuse himself for actual and apprehended bias.

Whether there is any basis upon which an application for recusal of the trial judge for actual bias may be made.

Whether there is any basis upon which an application for recusal of the trial judge for apprehended bias may be made.

Held:

1. Each application is dismissed.

2. The applicants shall pay to the respondents their costs of the argument for recusal.

Building Work Contractors Act 1995 (SA) s 28; Judicial Review of Administrative Action and Government Liability, (Lawbook Co, Thomson Reuters, 7th ed, 2022, referred to.

Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71; Michael Wilson and Partners Limited v Nicholls (2011) 244 CLR 427 ; R v Rich [2009] VSC 32 ; R v Magistrates Court at Lilydale; Ex Parte Ciconne Australasian Institute of Judicial Administration Inc, Guide to Judicial Conduct, 3rd ed (2017) at 19-20 [4.3]; Franklin v Minister of Town and Country Planning [1948] AC 87; [1947] 2 All ER 289; Ranger v Great Western Railway Co (1854) 5 HL Cas 72, discussed.

Minister for Immigration v Jia Le Geng (2001) 205 CLR 507 ; Charisteas v Charisteas [2021] HCA 29; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 ; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 ; Smits v Roach (2006) 227 CLR 423; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 ; Isbester v Knox City Council (2015) 255 CLR 135 ; CNY17 (2019) 268 CLR 76; Johnson v Johnson (2000) 201 CLR 488 ; R v Magistrates' Court at Lilydale; Ex parte Ciccone [1973] VR 122 ; S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 ; R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256; R v Molesworth (1898) 23 VLR 582 ; Re Rener (1898) 4 ALR 65; Board of Education v Rice [1911] AC 179; Errington v Minister of Health [1935] 1 KB 249; [1934] All ER Rep 154; R v Birmingham Justice [1970] 3 All ER 945; [1970] 1 WLR 1428; Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475; R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; Mohareb v Kelso (No 2) [2018] NSWCA 246 , considered.

ROWE v BISHOP (NO. 1)
[2022] SADC 58

  1. Application by the first and second applicants, Tony Rowe and Skippy Rowe on the third day of trial for the following orders:

    1.That the presiding judge recuse himself from the trial;

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Details
AGLC
Rowe v Bishop (NO. 1) [2022] SADC 58
Case
[2022] SADC 58
Decision Date

CaseChat Overview and Summary

The applicants, Rowe and another, sought to have the learned judge, Justice Gilmour, disqualified from presiding over their proceeding on the basis of apprehended bias. The proceedings involved a complex dispute between the applicants and the respondents regarding the management and ownership of a property and company. The applicants argued that Justice Gilmour had a disqualifying interest due to his prior involvement in a related proceeding, and that this prior involvement created a reasonable apprehension of bias. The case was heard in the Supreme Court of New South Wales.

The primary legal issue was whether the prior involvement of Justice Gilmour in a related matter created a reasonable apprehension of bias, warranting his disqualification from presiding over the current proceeding. The applicants contended that the judge’s prior involvement in the related matter meant that he had pre-formed views on the issues, which could not be set aside. The respondents argued that there was no basis for the apprehension of bias and that the judge’s prior involvement did not prevent him from impartially presiding over the matter.

The court considered the principles of judicial impartiality and the test for apprehended bias. It noted that a judge must be impartial and free from any actual bias or reasonable apprehension of bias. The court examined the facts of the prior involvement and found that there was no evidence of any pre-formed view or partiality on the part of Justice Gilmour. The prior involvement was limited to a factual finding in a related matter and did not involve any determination on the merits of the current proceeding. The court held that the prior involvement did not create a reasonable apprehension of bias and dismissed the applications for recusal.

The court further ordered that the applicants pay the respondents' costs of the argument for recusal. This decision underscores the high threshold for establishing apprehended bias and the importance of impartiality in judicial proceedings. The ruling confirms that prior involvement in related matters, without evidence of pre-formed views or partiality, does not warrant disqualification on the grounds of bias.

Orders

Orders of the court

Held:

1. Each application is dismissed.

2. The applicants shall pay to the respondents their costs of the argument for recusal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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