Dunstan v Orr [2022] FCA 1006

Dunstan v Orr [2022] FCA 1006

Neither actual nor apprehended bias was established. The evidence relied on by the applicant did not support a conclusion that the judge had a closed mind or predisposition against the applicant. The case management decisions were discretionary, procedural in nature, and provided no reasonable basis for a finding of bias. The alleged associations and comments did not support a reasonable apprehension of bias. The fair-minded lay observer would not apprehend that the judge might not bring an impartial mind to the matter based on the material advanced.

Jurisdiction
Australia
Judgment Date
29 August 2022
Procedural Posture
Recusal Application / Interlocutory, Determined on the Papers
Outcome
Application dismissed
Legal Topics
['recusal of Judge' 'actual Bias' 'apprehended Bias' 'case Management' 'costs']
['practice and Procedure' 'administrative Law'] ['recusal of Judge' 'actual Bias' 'apprehended Bias' 'case Management' 'costs']

Case Brief

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Procedural Posture

Recusal Application / Interlocutory, Determined on the Papers

Legal Issues

  1. 1 ['Whether the judge should recuse himself on grounds of actual bias or apprehended bias' 'Whether case management decisions gave rise to a reasonable apprehension of bias']

Ratio Decidendi

Neither actual nor apprehended bias was established. The evidence relied on by the applicant did not support a conclusion that the judge had a closed mind or predisposition against the applicant. The case management decisions were discretionary, procedural in nature, and provided no reasonable basis for a finding of bias. The alleged associations and comments did not support a reasonable apprehension of bias. The fair-minded lay observer would not apprehend that the judge might not bring an impartial mind to the matter based on the material advanced.

Court Disposition

Application dismissed

Orders

  • ["The applicant's application that Wigney J recuse himself from hearing this matter on grounds of apprehended bias or actual bias is dismissed." "The applicant pay the respondents' costs of and associated with the recusal application, including the costs of their legal advisers preparing for and appearing at the...