Mentyn v Westpac Banking Corporation [2004] FCAFC 156

Mentyn v Westpac Banking Corporation [2004] FCAFC 156

Nothing that occurred during the call-over provided any warrant for the suggestion that Weinberg J was biased, either actually or in the apprehended sense; the allegation that he contacted respondents was untrue, and no evidence was produced to support the contempt allegation or any other allegation. Applying the governing disqualification principles, there was no reason why he should not continue to participate in the appeal.

Jurisdiction
Australia
Judgment Date
28 May 2004
Procedural Posture
Appeal; Motion for Disqualification of Judge / Ruling on Application Dated 26 May 2004 for Weinberg J to Disqualify Himself From Further Participation in the Appeal
Outcome
Application refused
Legal Topics
['judicial Disqualification' 'actual Bias' 'apprehended Bias' 'call Over Directions' 'contempt Allegation']
['courts and Judges' 'civil Procedure'] ['judicial Disqualification' 'actual Bias' 'apprehended Bias' 'call Over Directions' 'contempt Allegation']

Case Brief

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Procedural Posture

Appeal; Motion for Disqualification of Judge / Ruling on Application Dated 26 May 2004 for Weinberg J to Disqualify Himself From Further Participation in the Appeal

Legal Issues

  1. 1 ['Whether Weinberg J should disqualify himself from further participation in the appeal on the basis of actual or perceived bias.' "Whether the judge's conduct at the call-over, including directing that a notice of motion be heard by the Full Court together with the application for leave to appeal and the appeal, supported an allegation of bias." 'Whether allegations that the judge communicated with respondents, committed contempt of court, or engaged in unconscionable, unconscientious or inequitable conduct were supported by evidence.']

Ratio Decidendi

Nothing that occurred during the call-over provided any warrant for the suggestion that Weinberg J was biased, either actually or in the apprehended sense; the allegation that he contacted respondents was untrue, and no evidence was produced to support the contempt allegation or any other allegation. Applying the governing disqualification principles, there was no reason why he should not continue to participate in the appeal.

Court Disposition

Application refused

Orders

  • ['The application be refused.']