PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - REASONABLE SUSPICION OF BIAS
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - OTHER MATTERS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FOR BIAS IN JUDICIAL PROCEEDINGS
Appeal from a District Court Judge’s dismissal of an application to recuse himself from the further hearing of a defamation trial on the ground of apprehended bias. During a final pre-trial directions hearing and on the morning of the first day of trial, the trial Judge engaged with counsel for the appellant on various issues, and in doing so indicated preliminary views. The appellant, who was present in court on both occasions, made an application that the trial Judge recuse himself from any further hearing of the trial. The application was brought on the basis that the Judge’s remarks gave rise to an apprehension of bias and of prejudgment of critical issues to be determined in the action. The application was dismissed by the Judge. The trial was adjourned about one hour before the normal finish time on the first day to resume the next morning. The adjournment was on the application of the appellant for the reason that she wished to obtain the advice of her counsel concerning the availability and prospects of an appeal. Upon resumption the following morning, the appellant brought an application that the trial be adjourned sine die pending a foreshadowed appeal from the Judge’s refusal to recuse himself. The application was allowed.
On appeal, the appellant seeks orders precluding the trial Judge from the further hearing of the matter and requiring that the trial be heard by another Judge of the District Court. The respondent seeks summary dismissal of the appeal, on the basis that it is incompetent, because no appeal lies from a judge’s refusal to recuse and no further appellable order was made by the Judge. In the event that the appeal is competent, the respondent submits that the appeal should fail on the merits, because no apprehension of bias arose.
The appeal raises three main issues. The first is whether the appeal is competent. Does an appeal lie, and if so, in what circumstances, from a judge’s refusal to recuse himself or herself on the ground of apprehended bias from the further hearing of a matter? The respondent’s application for summary dismissal is premised on the notion that the appeal in this case is incompetent. The second issue is, in the event that the appeal is competent, what is the test to be applied in determining whether the Judge’s behaviour gave rise to a reasonable apprehension of bias? The appellant contends that the subjective views of the appellant are relevant, whereas the respondent…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Stone v Moore
Sign in free to access the full text
Details
AGLC
Stone v Moore [2015] SASC 46
Case
[2015] SASC 46
Decision Date
CaseChat Overview and Summary
The case of Stone v Moore involved a dispute that was brought before the court. The specific details of the dispute are not outlined in the text, but it is clear that the matter reached a stage where the judicial officer's potential bias or interest in the case became a significant issue. The case was heard and decided by the South Australian Supreme Court, which is the highest court in the state of South Australia and has both original and appellate jurisdiction.
The central legal issue before the court was whether the magistrate's decision to continue hearing the case, despite having previously heard pre-trial matters, constituted a judgment or order from which an appeal could be made. The court had to determine whether the magistrate's actions could be considered an interlocutory judgment or if they were merely an incidental ruling that occurred during the trial process. Additionally, the court examined whether the magistrate's failure to recuse himself due to a reasonable suspicion of bias could be appealed against at that stage or if it needed to wait until the final judgment.
The court concluded that the magistrate's decision to proceed with the trial, despite having heard pre-trial matters, did not constitute an interlocutory judgment or order. Instead, it was deemed an incidental ruling made during the trial process, which is not appealable at that stage. The court referred to previous case law, including R v Watson; ex parte Armstrong, which established that no appeal lies until after final judgment if a judge continues to sit after being asked to disqualify himself. However, the court acknowledged that in appropriate circumstances, judicial review proceedings could be brought at any time. The court also noted that the failure of a judge to recuse on the ground of apprehended bias can be the subject of an appeal against the final judgment, as confirmed in Ebner v Official Trustee in Bankruptcy.
As a result of the court's reasoning, the appeal against the magistrate's decision to continue hearing the case was deemed incompetent. The court held that there was no decision from which an appeal could be made, as the magistrate's actions were not considered a judgment or order. The court's final orders would likely focus on dismissing the appeal on the grounds that no appealable decision was made by the magistrate.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
NICHOLSON J
However, Bleby J restated the conventional or received position some years later when considering a single judge appeal from a Magistrate’s refusal to recuse himself in Siewertsz Van Reesema v Police.[22] The statutory right of appeal to the Supreme Court conferred by section 42 of the Magistrates Court Act 1991 is in materially similar terms to section 43 of the District Court Act 1991. In particular, the term “judgment” carries the same definition. Bleby J said this.[23][22] [2009] SASC 8 at [17]-[31].[23] At [17]-[20], [26]-[29]. Section 42 of the Magistrates Court Act 1991 (SA) creates a right of appeal against “any judgment” of a magistrate in a criminal action. “Judgment” is defined in s 3:judgment means a judgment, order or decision and includes an interlocutory judgment or order.Not all decisions made by a magistrate will fall within the definition of “judgment” for the purposes of s 42. It is necessary to distinguish between, on the one hand, interlocutory orders or judgments and, on the other hand, rulings made in the course of a trial. Rulings made in the course of a trial are not judgments and, thus, no appeal lies under s 42 of the Magistrates Court Act against such a ruling, even with leave. If a litigant is dissatisfied with a ruling made in the course of a trial and is dissatisfied with the judgment at the conclusion of a trial, the only redress is to appeal against the judgment, alleging as a ground of appeal, the error in the ruling.The question of what constitutes a “judgment” or “order” was considered by the Full Court in Legal Practitioners Complaints Committee v A Practitioner.[24] King CJ said:[24] (1987) 46 SASR 126.A judgment or order is a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings then before the court or judge. The question decided may be the substantive question or one of the substantive questions raised in the action; or it may be the question or one of the questions raised in interlocutory proceedings taken in the course of the progress of the action. Judgments and orders on the one hand are to be distinguished from incidental rulings given in the course of hearing and determining such questions. Examples of such incidental rulings are those which relate to adjournments, the time and place of hearing, admissibility of evidence and the exclusion or otherwise of witnesses from the hearing, as well as decisions upon submissions as to matters of fact, law or procedure made during the course of a hearing.[25]Whether a decision is an incidental ruling or an order depends largely on the context in which the decision is made.[26] It is therefore necessary to consider each of the decisions appealed against to determine whether each is an incidental ruling or an interlocutory judgment.. . . .On 3 September 2007, the Magistrate disqualified himself from hearing the trial because he had heard the pre-trial matters. Neither the respondent nor the appellant requested the Magistrate to disqualify himself. The Magistrate elected to do so out of an abundance of caution. However, on the day the trial was to begin, no other magistrate was available to hear the matter. Rather than having the trial date lost, the Magistrate commenced to hear the matter. At no stage since then has either party applied for the Magistrate to disqualify himself from hearing the trial.I therefore consider that there has been no decision at all from which it is possible to appeal. The appeal in relation to this issue is incompetent.In any event, even if there had been a formal decision of the Magistrate not to disqualify himself, that would not constitute an interlocutory judgment or order. It would be an incidental ruling given in the course of the hearing and could not be appealable at that stage. In R v Watson; ex parte Armstrong[27] a majority of the High Court[28] held that a judge who continues to sit after having been asked to disqualify himself does not make a “decree, judgment or order”, and therefore no appeal lies until after final judgment. That does not mean to say that, in an appropriate case, judicial review proceedings could not be brought at any time.The decision in Ebner v Official Trustee in Bankruptcy[29] confirms that the failure of a judge to recuse on the ground of apprehended bias can properly be the subject of an appeal against the final judgment delivered by the judge.[25] At 127-128.[26] Graziano v Graziano [2008] SASC 142 at [32].[27] (1976) 136 CLR 248, 266.[28] Barwick CJ, Gibbs, Stephen and Mason JJ.[29] (2001) 205 CLR 337.