Courts and Judges

Courts and Judges

Access to Court File

Application for access to statement of claim — Applicant journalist sought access to court file: Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836

Orders for production — Application for order that affidavit filed by receivers be made available for inspection — Orders were made requiring production of documents relating to insurance claims and policy regarding underground mine and incident: Re Southland Coal Pty Ltd (rec & mgrs apptd) (in liq) [2006] NSWSC 184



Test for apprehended bias: Donaghy v Council of the Law Society of NSW [2015] NSWCA 223

The principles concerning the disqualification of a judge on the ground of apprehended bias are set out by Lockhart, Lindgren and Tamberlin JJ in Mobil Oil v Lyndel (1998) 153 ALR 198 at 216

Those principles were affirmed by the High Court in Johnson v Johnson (2000) 201 CLR 488 at [11]] as follows: ‘the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.’

See also Sydney Refractive Surgery Centre Pty Ltd v Commissioner of Taxation [2007] FCA 1544

Judge seeing “without prejudice” letter in injunction proceedings – same judge hearing substantive proceedings – whether judge ought to have disqualified himself: Hardie v Booth [1992] 1 NZLR 356

Social occasion between Judge and counsel:  Emanuele v Emanuele Investments (1996) 21 ACSR 83

Circumstances in which a fair minded observer might apprehend bias: Mobil Oil Australia v Wellcome International Pty Ltd 81 FCR 549

Failure by judge to disclose customer relationship with bank — Failure to disclose wife’s shareholding in bank Dovade Pty Ltd v Westpac Banking Group(1999) 46 NSWLR 168

Judges — Disqualification for interest or bias — Application made at trial for judge to disqualify himself from further hearing matter — Judge declined to do so — Submission that exchanges between judge and plaintiff’s counsel indicate that judge held negative views about counsel’s conduct of the action: IOOF Aust Trustees Ltd v Seas Sapfor Forests Ltd [1999] SASC 249

Whether judge should disqualify himself from hearing a case involving a company in which he has shares: Ebner v Official Trustee in Bankruptcy [2000] HCA 63

Judges — Apprehension of bias — Prejudgment — Application for disqualification of judge — Trial judge published substantial number of judgments on evidentiary and interlocutory matters – whether should disqualify himself:  Australian Securities and Investments Commission v Rich [2004] NSWSC 970

Whether there can be an appeal from Judge’s decision not to disqualify himself: Jae Kyung Lee v Bob Chae-Sang Cha and Ors [2008] NSWCA 13

The relevant principles on this topic are variously discussed in: Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; Betfair Pty Ltd v Racing New South Wales (No. 13) [2010] FCA 696 at [19]; Australian Securities and Investments Commission v Cassimatis [2011] FCA 63 (at [5])

Principles governing apprehension of bias – Whether the test for apprehension bias differs in a court or tribunal – Application of the rule in Jones v Dunkel where a party is unrepresented – Duty of a court or tribunal to assist an unrepresented litigant: Comaz (Aust) Pty Ltd v Commissioner of State Revenue [2015] VSC 294


Delay in Giving Judgment

Observations relating to the significance of delay in giving judgment: Hadid v Redpath(2001) 35 MVR 152; Monie v Commonwealth of Australia [2005] NSWCA 25 at [43] and NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 ALR 171 [85]–[89].


Judges Immunity

Judges — immunity from proceedings — alleged improper denial of right to trial by jury — where claimant charged with contempt of court and served sentence of imprisonment: Bauskis v Adams [2007] NSWCA 293


Jurisdiction to order DNA testing


Courts and judicial system – Jurisdiction – Inherent jurisdiction of the court – An order that a person submit to a mouth swab to provide a sample for DNA analysis to determine the issue of paternity  – Court did not have the inherent jurisdiction to make the order: Furesh v Schor (2013) ALR 621; [2013] WASCA 231


Obligation on Judges to Give Reasons for Decision

See Resi Corporation v Munzer [2016] SASCFC 21 at [68] – [70] and cases there referred to


Sleeping Judges

Trial judge had been asleep during significant parts of a criminal trial – whether there had been a miscarriage of justice as the trial judge had not exercised that degree of supervision of the proceedings which would ensure, so far as reasonably practicable, that the jury paid attention to all of the evidence as it was given – in particular, whether the jury was distracted because the judge was asleep: Cesan v R (2008) 250 ALR 192


Unrepresented Litigants

Appropriate assistance to be given to unrepresented litigants: Barmettler v Greer & Timms [2007] QCA 170

Judicial case management — Unrepresented litigants — Limits on cross-examination: Cvetkovic v Parexel International Pty Ltd [2007] NSWSC 540

Judges obligations when unrepresented litigant: Tobin v Dodd [2004] WASCA 288

Duty of a court or tribunal to assist an unrepresented litigant: Comaz (Aust) Pty Ltd v Commissioner of State Revenue [2015] VSC 294

See also Tomasevic v Travaglini [2007] VSC 337 and Dietrich v R (1992) 177 CLR 292 at 299

For Guidelines in dealing with self-represented litigants in the Family Court see Re F: Litigants in Person Guidelines (2001) 27 FLR 189

Duty of court to assist unrepresented litigants – practical issues where litigant trying to prove indefeasibility of title: Loftus v Australia and New Zealand Banking Group Ltd [No 2] [2016] VSCA 308