WorkCover Authority of New South Wales (Inspector Carmody) v Develco Project Pty Ltd (No 1) [2001] NSWIRComm 97

WorkCover Authority of New South Wales (Inspector Carmody) v Develco Project Pty Ltd (No 1) [2001] NSWIRComm 97

The disqualification application was upheld because the costs application in the present matter was a different but related proceeding in which the same factual issue of causation of the wall collapse and the credit of the same witness, Mr Leavy, had already been decided by the judge in Byrne Civil Engineering Constructions in a manner contrary to the defendant's position. Applying Australian National Industries Ltd v Spedley Securities Ltd (In Liq), and finding no extraordinary or special circumstances requiring the judge to sit, a reasonable apprehension of pre-judgment was established.

Jurisdiction
Australia
Judgment Date
11 May 2001
Procedural Posture
Prosecution Under Section 16(1) of the Occupational Health and Safety Act 1983 / Defendant's Application That Hungerford J Disqualify Himself From Determining the Defendant's Costs Application After the Prosecutor Offered No Evidence and the Charge Was to Be Dismissed
Outcome
Application upheld; Hungerford J formally disqualified himself from determining the defendant's costs application.
Legal Topics
['apprehended Bias' 'pre Judgment' 'judicial Disqualification' 'costs Application' 'related Proceedings' 'witness Credibility' 'causation']
['industrial Law' 'occupational Health and Safety' 'courts and Judges'] ['apprehended Bias' 'pre Judgment' 'judicial Disqualification' 'costs Application' 'related Proceedings' 'witness Credibility' 'causation']

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Procedural Posture

Prosecution Under Section 16(1) of the Occupational Health and Safety Act 1983 / Defendant's Application That Hungerford J Disqualify Himself From Determining the Defendant's Costs Application After the Prosecutor Offered No Evidence and the Charge Was to Be Dismissed

Legal Issues

  1. 1 ["Whether the judge should disqualify himself from determining the defendant's costs application on the ground of reasonable apprehension of pre-judgment arising from findings made in related proceedings." 'Whether prior findings on the causation of the wall collapse and the credibility of Mr Leavy in WorkCover Authority of New South Wales (Inspector Carmody) v Byrne Civil Engineering Constructions Pty Ltd (No 1) required disqualification in the present related matter.' 'Whether the approach in Australian National Industries Ltd v Spedley Securities Ltd (In Liq) or R v Masters should govern the disqualification application.']

Ratio Decidendi

The disqualification application was upheld because the costs application in the present matter was a different but related proceeding in which the same factual issue of causation of the wall collapse and the credit of the same witness, Mr Leavy, had already been decided by the judge in Byrne Civil Engineering Constructions in a manner contrary to the defendant's position. Applying Australian National Industries Ltd v Spedley Securities Ltd (In Liq), and finding no extraordinary or special circumstances requiring the judge to sit, a reasonable apprehension of pre-judgment was established.

Court Disposition

Application upheld; Hungerford J formally disqualified himself from determining the defendant's costs application.

Orders

  • ["Hungerford J disqualified himself from determining the defendant's costs application." 'Arrangements will be advised to the parties in due course for another judge to deal with the matter.']