Sommer v C Pty Ltd (No.5)

This matter concerned an application for the recusal of Judge Manousaridis, brought by the respondent, C Pty Ltd. The dispute arose from a bankruptcy notice proceeding where the applicant, an unrepresented litigant, was seeking to set aside the notice. The respondent alleged that the judge had impermissibly assisted the unrepresented applicant by identifying and expanding upon grounds for setting aside the notice that the applicant had not initially relied upon, thereby potentially exceeding the court's jurisdiction and prejudicing the respondent.

The court was required to determine two principal questions. Firstly, whether the judge had impermissibly identified or introduced issues into the proceeding beyond the scope of the application to set aside the bankruptcy notice. Secondly, and contingent on the first question, whether, if the judge had introduced such issues, a fair-minded lay observer, possessing knowledge of the principles governing a judge's obligations to an unrepresented litigant, might reasonably apprehend that the judge would not bring an impartial mind to the resolution of the matters in dispute.

The court dismissed the application for recusal. It reasoned that a judge has a duty to ensure a fair trial and, in particular, to ensure that unrepresented litigants do not suffer disadvantages due to their lack of legal knowledge or objectivity. This includes informing them of procedures that may prove advantageous and ensuring they have not failed to claim rights or put forward arguments due to a lack of legal skill. The judge's actions in identifying potential grounds for the applicant, and directing the filing of a Statement of Applicant's Case, were found to be within the permissible scope of assistance to a litigant-in-person, aimed at ensuring procedural fairness and allowing the applicant to effectively present her case. The court concluded that these actions did not give rise to a reasonable apprehension of bias in a fair-minded lay observer.