Roberts-Smith v Fairfax Media Publications Pty Limited (No 44) [2023] FCA 1013

Roberts-Smith v Fairfax Media Publications Pty Limited (No 44) [2023] FCA 1013

The circumstances were unusual because the judge had made strong and serious findings of fact and credit against the applicant in the main defamation judgment. In those circumstances, applying Ebner, the fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the Commonwealth's applications, so those applications should be referred to another judge.

Jurisdiction
Australia
Judgment Date
25 August 2023
Procedural Posture
Application for Disqualification From Hearing and Determining Two Applications Brought by the Commonwealth of Australia on the Ground of Apprehended Bias / After Dismissal of Three Defamation Proceedings and Before Hearing of the Commonwealth's Interlocutory Application Dated 19 July 2023 and Request by Non Party for Access to Court Documents Dated 21 July 2023
Outcome
Application for disqualification on the ground of apprehended bias allowed; Commonwealth's applications referred to another judge for hearing and determination.
Legal Topics
['judicial Disqualification' 'fair Minded Lay Observer Test' 'prejudgment' 'national Security Information (criminal and Civil Proceedings) Act 2004 (cth) Ss 19(3 A), 38 B' 'non Party Access to Court Documents' 'sensitive Court File']
['practice and Procedure' 'apprehended Bias' 'national Security Information' 'defamation'] ['judicial Disqualification' 'fair Minded Lay Observer Test' 'prejudgment' 'national Security Information (criminal and Civil Proceedings) Act 2004 (cth) Ss 19(3 A), 38 B' 'non Party Access to Court Documents' 'sensitive Court File']

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Procedural Posture

Application for Disqualification From Hearing and Determining Two Applications Brought by the Commonwealth of Australia on the Ground of Apprehended Bias / After Dismissal of Three Defamation Proceedings and Before Hearing of the Commonwealth's Interlocutory Application Dated 19 July 2023 and Request by Non Party for Access to Court Documents Dated 21 July 2023

Legal Issues

  1. 1 ["Whether the judge should disqualify himself from hearing and determining the Commonwealth's applications on the ground of apprehended bias." "Whether serious findings of fact and credit made against the applicant in the main defamation judgment could cause a fair-minded lay observer reasonably to apprehend that the judge might not bring an impartial mind to the Commonwealth's applications." "Whether the Commonwealth's applications would require consideration of matters potentially affecting the applicant's presumption of innocence or criminal investigation concerning matters overlapping with the defamation proceedings."]

Ratio Decidendi

The circumstances were unusual because the judge had made strong and serious findings of fact and credit against the applicant in the main defamation judgment. In those circumstances, applying Ebner, the fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the Commonwealth's applications, so those applications should be referred to another judge.

Court Disposition

Application for disqualification on the ground of apprehended bias allowed; Commonwealth's applications referred to another judge for hearing and determination.

Orders

  • ["The Commonwealth's Interlocutory application dated 19 July 2023 and the Request by Non-Party for Access to Court Documents dated 21 July 2023 and any associated applications and requests be referred to another Judge for hearing and determination."]