Hillier v Martin (No 2) [2021] FCA 509

Hillier v Martin (No 2) [2021] FCA 509

The respondent did not establish apprehended bias. Although a fair-minded observer might infer that some privileged NRFA documents related to the Nordburger business and may have included derogatory views about Mr Martin, there was no sufficient logical connection between that circumstance and an apprehension that...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
12 May 2021
Procedural Posture
Interlocutory Application in a Commercial and Corporations Proceeding for Disqualification or Recusal on Grounds of Apprehended Bias / Respondent's Interlocutory Application Dated 26 March 2021 Heard Before Trial and Determined on 12 May 2021
Outcome
The respondent's application for disqualification or recusal was dismissed.
Legal Topics
['apprehended Bias' 'fair Minded Lay Observer Test' 'extraneous Materials Inspected by Judge' 'legal Professional Privilege of a Non Party' 'waiver by Delay' 'credibility of Witness' 'case Management Orders']
['practice and Procedure' 'judicial Disqualification' 'evidence' 'legal Professional Privilege'] ['apprehended Bias' 'fair Minded Lay Observer Test' 'extraneous Materials Inspected by Judge' 'legal Professional Privilege of a Non Party' 'waiver by Delay' 'credibility of Witness' 'case Management Orders']

Source-derived case record

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Procedural Posture

Interlocutory Application in a Commercial and Corporations Proceeding for Disqualification or Recusal on Grounds of Apprehended Bias / Respondent's Interlocutory Application Dated 26 March 2021 Heard Before Trial and Determined on 12 May 2021

Legal Issues

  1. 1 ['Whether a fair-minded lay observer might reasonably apprehend that the presiding judge might not bring an impartial mind to the determination of issues because she had previously inspected documents over which Norton Rose Fulbright Australia maintained a claim of legal professional privilege.' 'Whether the privileged documents might be directly relevant to issues in the proceeding concerning the Nordburger business.' "Whether the privileged documents might affect the judge's assessment of Mr Thomas Martin's credibility as a likely witness." "Whether delay in bringing the disqualification application resulted in waiver of the respondent's right to object."]

Ratio Decidendi

The respondent did not establish apprehended bias. Although a fair-minded observer might infer that some privileged NRFA documents related to the Nordburger business and may have included derogatory views about Mr Martin, there was no sufficient logical connection between that circumstance and an apprehension that the judge might not decide the case impartially. The judge retained no actual recollection of content bearing on the issues or credibility, the imputed material was either prior out-of-court statements or irrelevant opinion that a judicial officer is equipped to disregard, and the possibility of future inconsistency in Mr Martin's evidence was only hypothetical. Delay waived any...

Court Disposition

The respondent's application for disqualification or recusal was dismissed.

Orders

  • ["The respondent's application for an order in terms of paragraph 3 of the interlocutory application dated 26 March 2021 is dismissed." 'There be a further case management hearing on a date to be fixed not earlier than 17 May 2021.']