Priestley v Godwin [2008] FCA 1179

Priestley v Godwin [2008] FCA 1179

The adjournment was refused because the filing of High Court proceedings, without any removal application, was not a sufficient reason to adjourn a listed Federal Court hearing. The first three recusal applications were refused because being a rule making judge, having applied s 31A, the alleged inadequacy of reasons, and alleged non-disclosure about the rule-making process did not establish a reasonable apprehension of bias; in any event, if the alleged basis applied to all Federal Court judges, the doctrine of necessity supported the matter proceeding in the Federal Court. The fourth recusal application, based on the Human Rights Act 2004 (ACT), raised matters overlapping with the...

Jurisdiction
Australia
Judgment Date
16 July 2008
Procedural Posture
Practice and Procedure; Applications for Recusal and Adjournment in Proceedings Seeking Statements of Reasons and Disclosure of Evidence / Hearing of the Constitutional Issue and Interlocutory Applications Before Bennett J
Outcome
Application for adjournment refused; first, second and third applications for recusal refused; decision on fourth application for recusal reserved.
Legal Topics
['recusal' 'reasonable Apprehension of Bias' 'adjournment' 'doctrine of Necessity' 'federal Court Rules O 20 R 5' 'federal Court of Australia Act 1976 (cth) S 31 A' 'human Rights Act 2004 (act)' 'removal to the High Court']
['practice and Procedure' 'constitutional Law' 'administrative Law'] ['recusal' 'reasonable Apprehension of Bias' 'adjournment' 'doctrine of Necessity' 'federal Court Rules O 20 R 5' 'federal Court of Australia Act 1976 (cth) S 31 A' 'human Rights Act 2004 (act)' 'removal to the High Court']

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Procedural Posture

Practice and Procedure; Applications for Recusal and Adjournment in Proceedings Seeking Statements of Reasons and Disclosure of Evidence / Hearing of the Constitutional Issue and Interlocutory Applications Before Bennett J

Legal Issues

  1. 1 ['Whether the hearing should be adjourned because the applicant had commenced proceedings in the High Court for an order to show cause.' 'Whether Bennett J should recuse herself on the basis of reasonable apprehension of bias arising from being a rule making judge or having applied s 31A of the Federal Court of Australia Act 1976 (Cth).' 'Whether alleged failure to apply the common law test in Ebner v Official Trustee in Bankruptcy justified recusal.' 'Whether alleged non-disclosure of relevant circumstances concerning the making of O 20 r 5 of the Federal Court Rules justified recusal.' 'Whether the Human Rights Act 2004 (ACT), by operation of s 79 of the Judiciary Act 1903 (Cth), provided a further basis for recusal based on independence and impartiality.']

Ratio Decidendi

The adjournment was refused because the filing of High Court proceedings, without any removal application, was not a sufficient reason to adjourn a listed Federal Court hearing. The first three recusal applications were refused because being a rule making judge, having applied s 31A, the alleged inadequacy of reasons, and alleged non-disclosure about the rule-making process did not establish a reasonable apprehension of bias; in any event, if the alleged basis applied to all Federal Court judges, the doctrine of necessity supported the matter proceeding in the Federal Court. The fourth recusal application, based on the Human Rights Act 2004 (ACT), raised matters overlapping with the...

Court Disposition

Application for adjournment refused; first, second and third applications for recusal refused; decision on fourth application for recusal reserved.

Orders

  • ["The applicant's application for adjournment is refused." "The applicant's first, second and third applications for recusal are refused." 'The decision on the fourth application for recusal is reserved.']