John Fairfax Publications Pty Ltd v Maurice Kriss [2007] NSWCA 79

John Fairfax Publications Pty Ltd v Maurice Kriss [2007] NSWCA 79

Except for the comments about the heading, the trial judge's remarks, taken together, were sufficient to establish a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the issues, particularly the claim against the newspaper and malice. The appellant had not waived the objection because it was reasonable to wait until the next morning to obtain the transcript and express instructions. The judgment was therefore set aside and a new trial ordered.

Jurisdiction
Australia
Judgment Date
04 April 2007
Procedural Posture
Defamation and Injurious Falsehood; Judicial Disqualification for Apparent Bias / Appeal/application for New Trial From the Supreme Court Common Law Division
Outcome
Appeal allowed with costs; judgment set aside; new trial ordered before another judge.
Legal Topics
['disqualification of Judge' 'apparent Bias' 'ostensible Bias' 'waiver' 'new Trial']
['courts and Judges' 'defamation' 'injurious Falsehood' 'civil Procedure'] ['disqualification of Judge' 'apparent Bias' 'ostensible Bias' 'waiver' 'new Trial']

Case Brief

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Procedural Posture

Defamation and Injurious Falsehood; Judicial Disqualification for Apparent Bias / Appeal/application for New Trial From the Supreme Court Common Law Division

Legal Issues

  1. 1 ['Whether comments made by the trial judge during opening and evidence gave rise to a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the issues.' "Whether the appellant waived its right to rely on the judge's disqualification by waiting until the next morning to make the application." 'Whether a new trial should be ordered.']

Ratio Decidendi

Except for the comments about the heading, the trial judge's remarks, taken together, were sufficient to establish a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the issues, particularly the claim against the newspaper and malice. The appellant had not waived the objection because it was reasonable to wait until the next morning to obtain the transcript and express instructions. The judgment was therefore set aside and a new trial ordered.

Court Disposition

Appeal allowed with costs; judgment set aside; new trial ordered before another judge.

Orders

  • ['Appeal allowed with costs.' 'Judgment of the Common Law Division set aside.' 'Order that there be a new trial of the action before another judge of the Division.' 'The costs of the first trial are to abide the order of the judge presiding at the second trial.' "The respondent is to have a certificate under the...