Westpac Banking Corporation v Forum Finance Pty Limited (Apprehended Bias Application) [2022] FCA 981

Westpac Banking Corporation v Forum Finance Pty Limited (Apprehended Bias Application) [2022] FCA 981

Absent express waiver, the judge must disqualify himself as a fair-minded lay observer might reasonably apprehend that the adverse impressions as to the reliability of Mr Tesoriero, formed during earlier interlocutory proceedings, could subconsciously influence the judge’s approach to that witness’s evidence at trial, particularly where the witness is likely to be called again and his credit will be in issue.

Jurisdiction
Australia
Judgment Date
19 August 2022
Procedural Posture
Proceeding for Transfer Due to Apprehended Bias / Interlocutory (apprehended Bias Application for Recusal/transfer)
Outcome
Application granted; judge disqualified; proceedings transferred to another judge.
Legal Topics
['apprehended Bias' 'interlocutory Proceedings' 'docket System' 'judicial Impartiality']
['courts and Judges' 'civil Procedure'] ['apprehended Bias' 'interlocutory Proceedings' 'docket System' 'judicial Impartiality']

Case Brief

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Procedural Posture

Proceeding for Transfer Due to Apprehended Bias / Interlocutory (apprehended Bias Application for Recusal/transfer)

Legal Issues

  1. 1 ["Whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the case due to previous findings about a witness's credibility in interlocutory proceedings" 'Whether the judge should disqualify himself from hearing the final trial and related proceedings on the basis of apprehended bias']

Ratio Decidendi

Absent express waiver, the judge must disqualify himself as a fair-minded lay observer might reasonably apprehend that the adverse impressions as to the reliability of Mr Tesoriero, formed during earlier interlocutory proceedings, could subconsciously influence the judge’s approach to that witness’s evidence at trial, particularly where the witness is likely to be called again and his credit will be in issue.

Court Disposition

Application granted; judge disqualified; proceedings transferred to another judge.

Orders

  • ['The proceedings, including related matters, be transferred to the National Operations Registrar for reallocation to another judge.']