Dunlop v Fishburn (No. 2) [2012] FCA 314

Dunlop v Fishburn (No. 2) [2012] FCA 314

There is no reasonable apprehension of bias or actual bias arising from the judge's distant and limited acquaintance with two of the respondent lawyers more than thirty years prior; mere association is insufficient, and no logical connection to impartiality was shown. Moreover, the applicant waived objection by not raising the issue at the earliest opportunity despite knowledge of the circumstances. In relation to adjournment, no sufficient reasons or supporting evidence were provided and further delay would not serve the overarching purposes of civil procedure.

Parties
Applicant: James Henry Dunlop; First Respondent: Michael George Fishburn; Second Respondent: John James Watson; Third Respondent: Christopher Martin O'Brien; Fourth Respondent: Samuel Boyd Couper; Fifth Respondent: Morgan James Chubb as Trustee of the Bankrupt Estate of James Henry Dunlop
Jurisdiction
Australia
Judgment Date
27 March 2012
Procedural Posture
Application for Disqualification/extension of Time in Bankruptcy Matter / Interlocutory Application (recusal/adjournment) Prior to Hearing Extension of Time Application
Outcome
Application for recusal/refusal to hear the matter refused; hearing not adjourned
Legal Topics
Apprehended Bias, Recusal of Judge, Adjournment, Waiver of Procedural Objection
Practice and Procedure Bankruptcy Apprehended Bias Recusal of Judge Adjournment Waiver of Procedural Objection

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Parties

James Henry Dunlop

Applicant

Michael George Fishburn

First Respondent

John James Watson

Second Respondent

Christopher Martin O'Brien

Third Respondent

Samuel Boyd Couper

Fourth Respondent

Morgan James Chubb as Trustee of the Bankrupt Estate of James Henry Dunlop

Fifth Respondent

Procedural Posture

Application for Disqualification/extension of Time in Bankruptcy Matter / Interlocutory Application (recusal/adjournment) Prior to Hearing Extension of Time Application

Legal Issues

  1. 1 Whether the judge should recuse herself for apprehended bias due to acquaintance with two parties over thirty years ago
  2. 2 Whether the hearing should be adjourned/postponed

Ratio Decidendi

There is no reasonable apprehension of bias or actual bias arising from the judge's distant and limited acquaintance with two of the respondent lawyers more than thirty years prior; mere association is insufficient, and no logical connection to impartiality was shown. Moreover, the applicant waived objection by not raising the issue at the earliest opportunity despite knowledge of the circumstances. In relation to adjournment, no sufficient reasons or supporting evidence were provided and further delay would not serve the overarching purposes of civil procedure.

Court Disposition

Application for recusal/refusal to hear the matter refused; hearing not adjourned

Orders

  • The application that the judge recuse herself is refused.
  • The hearing will proceed as scheduled and is not further adjourned.