Young v King (No 12) [2017] NSWLEC 150

Young v King (No 12) [2017] NSWLEC 150

The recusal applications failed because the lawyers did not satisfy the Ebner double might test. A fair-minded lay observer, aware of the history and context, would not reasonably apprehend that Sheahan J might not bring an impartial mind to the Kings' application for personal costs orders. The Kings' application concerned a different question from the costs issues decided in Young v King (No 11), the applicants' reasons argument could not be upheld, and criticism or adverse findings in earlier judgments did not automatically amount to prejudgment of a question not yet argued and determined.

Jurisdiction
Australia
Judgment Date
17 November 2017
Procedural Posture
Class 4 Procedural Ruling on Recusal Motions in Personal Costs Proceedings / Decision on Applications by Muriniti and Newell for Sheahan J to Recuse Himself From Hearing the Kings' Personal Costs Application; Davies Matters Stood Over
Outcome
The Notices of Motion filed by Muriniti and Newell on 17 August 2017 seeking Sheahan J's recusal from the Kings' personal costs application were dismissed; the Kings' costs of that motion were reserved; the Davies matters and the Kings' personal costs application were stood over for directions.
Legal Topics
['apprehended Bias' 'recusal' 'prejudgment' 'personal Costs Orders Against Legal Practitioners' 'duty to Give Reasons']
['civil Procedure' 'costs' 'judicial Bias'] ['apprehended Bias' 'recusal' 'prejudgment' 'personal Costs Orders Against Legal Practitioners' 'duty to Give Reasons']

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Procedural Posture

Class 4 Procedural Ruling on Recusal Motions in Personal Costs Proceedings / Decision on Applications by Muriniti and Newell for Sheahan J to Recuse Himself From Hearing the Kings' Personal Costs Application; Davies Matters Stood Over

Legal Issues

  1. 1 ["Whether a fair-minded lay observer might reasonably apprehend that Sheahan J might not bring an impartial mind to the Kings' application for personal costs orders against Young's lawyers." "Whether adverse findings and criticism of the lawyers in earlier judgments, including Young v King (No 6) and Young v King (No 11), amounted to prejudgment of the Kings' personal costs application." 'Whether the alleged inadequacy of reasons in Young v King (No 6) supported apprehended bias requiring recusal.' 'Whether the Davies lump sum costs application and related recusal application should be adjourned for directions.']

Ratio Decidendi

The recusal applications failed because the lawyers did not satisfy the Ebner double might test. A fair-minded lay observer, aware of the history and context, would not reasonably apprehend that Sheahan J might not bring an impartial mind to the Kings' application for personal costs orders. The Kings' application concerned a different question from the costs issues decided in Young v King (No 11), the applicants' reasons argument could not be upheld, and criticism or adverse findings in earlier judgments did not automatically amount to prejudgment of a question not yet argued and determined.

Court Disposition

The Notices of Motion filed by Muriniti and Newell on 17 August 2017 seeking Sheahan J's recusal from the Kings' personal costs application were dismissed; the Kings' costs of that motion were reserved; the Davies matters and the Kings' personal costs application were stood over for directions.

Orders

  • ["In respect of the lump sum costs order application made by Davies, and the application made by Muriniti and Newell for an order that I recuse myself from dealing with Davies's application, the order made on 5 October 2017 that Muriniti and Newell pay Davies's costs of appearing that day is affirmed." "The...