A decade’s worth of recusals … Judges are taken, or take themselves, off cases where the appearance of conflicts looms too large … Bias survey in the wake of the unsuccessful disqualification application in Dyson Heydon’s case … From Emily Meller

Dyson Heydon’s sweeping dismissal of the unions’ application for his disqualification to sit as the royal commissioner threw public attention onto the arcane procedure surrounding the disposal of apprehended bias applications. 

Dyse basically said no one would believe that he supports the Liberal Party just because he agreed to give a speech to one of its branches. Further, the applicants did not show that a fair minded lay observer might conclude that a highly experiences lawyer and judge, like himself, would not be able to put out of his mind extraneous matters. 

That clinched it. 

We thought we’d see how keen judges are to accept recusal applications, or for appeal courts to order a judge to step aside.

We found 36 cases in the last 10 years – not a high success rate for applicants in Australian courts. There may be more and we’d be grateful if you let us know, so we can add to the list. 

In a recent unpublished paper Dr Gabrielle Appleby from UNSW and Stephen McDonald from the SA bar argue that the current system dealing with apprehended judicial bias is flawed. Alternatives are proposed, e.g. single judges who are challenged should not sit to determine the question. It is preferable if another judge is found to do the job. This means changing the common law by rules of court or final appeal decisions. 

That shouldn’t be too hard. Here we go with the list: 

COMMONWEALTH

Federal Court of Australia

Family Court

•  Justice Hannam recuses herself: Salerno & Salerno [2015] FamCA 774
•  Justice Bennet: Peddar & Vina [2013] FamCA 258
•  Justice Collier: Anderson & Taybor [2012] FamCA 929 (12 October 2012)
•  Justice Bell: Horleck & Horleck and Ors [2012] FamCA 120 (15 March 2012
•  Justice Collier: Gatsby & Gatsby [2011] FamCA 1042 (13 December 2011)
•  Judge Burr: Johns & Williamson [2008] FamCA 933 (24 October 2008)
•  Justice Cohen: Carew & Carew [2008] FamCA 505 (27 June 2008)
•  Justice Burr: Honan & Nourse [2007] FamCA 1690 (5 September 2007)
•  Justice Ryan: Rush & McFadzean [2007] FamCA 247 (16 March 2007)

Federal Circuit Court

•  Justice Driver: Barry & anor v Coshott (no 2) [2015]

Federal Magistrates Court of Australia

Administrative Appeals Tribunal 

NEW SOUTH WALES

Supreme Court

• Magistrate did not recuse himself, but NSWSC granted prohibition on him hearing Police v Ryan Gaudie:
• British American Tobacco Australia Ltd v Peter Gordon & Anor [2007] NSWSC 109. Justice Brereton recused himself after Slater & Gordon brought an application for apprehended bias. Judge was a barrister for BAT in the Cannar case, and initially found that he could sit on interlocutory issues.  

Land and Environment Court

District Court 

ACT

VICTORIA

Supreme Court

• Mogan Holdings Pty Ltd & Anor v Harrison [2011] VSCA 202 (1 July 2011) (judgment of lower court set aside)

County Court

• Bahonko v Moorfields Community & Ors [2008] VCC 829  (set aside on appeal for apprehended bias)

SOUTH AUSTRALIA

TASMANIA

WESTERN AUSTRALIA

• None found

QUEENSLAND

• None found