O’Shanassy v Turland [2021] NSWDC 269

O’Shanassy v Turland [2021] NSWDC 269

Although the judge was not required or able to make credit findings about Mr Turland in Greenwood, the judge had accepted that Mr Turland suffered reputational damage and distress from defamatory publications. A fair-minded reasonable observer might think the judge had accepted favourable matters about Mr Turland and might apprehend that the judge could not bring an impartial mind to the issues in the present defamation proceedings concerning Mr Turland's publications at Council meetings. Because another judge was available to hear the listed proceedings, it was appropriate for the judge to disqualify himself.

Jurisdiction
Australia
Judgment Date
22 June 2021
Procedural Posture
Civil Defamation Proceedings / Application for Judicial Disqualification on the Basis of Apprehended Bias Before Listed Hearing
Outcome
Judge disqualified himself from hearing the proceedings; hearing date and pre-hearing directions confirmed.
Legal Topics
['apprehended Bias' 'judicial Disqualification' 'fair Minded Lay Observer Test']
['civil Procedure' 'defamation'] ['apprehended Bias' 'judicial Disqualification' 'fair Minded Lay Observer Test']

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Procedural Posture

Civil Defamation Proceedings / Application for Judicial Disqualification on the Basis of Apprehended Bias Before Listed Hearing

Legal Issues

  1. 1 ['Whether the judge should disqualify himself from hearing the proceedings on the basis of apprehended bias arising from findings made in earlier defamation proceedings involving the defendant.' 'Whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the issues in the present defamation proceedings.']

Ratio Decidendi

Although the judge was not required or able to make credit findings about Mr Turland in Greenwood, the judge had accepted that Mr Turland suffered reputational damage and distress from defamatory publications. A fair-minded reasonable observer might think the judge had accepted favourable matters about Mr Turland and might apprehend that the judge could not bring an impartial mind to the issues in the present defamation proceedings concerning Mr Turland's publications at Council meetings. Because another judge was available to hear the listed proceedings, it was appropriate for the judge to disqualify himself.

Court Disposition

Judge disqualified himself from hearing the proceedings; hearing date and pre-hearing directions confirmed.

Orders

  • ['I disqualify myself from hearing the proceedings.' 'The hearing date of 2 August 2021 is confirmed.' 'The parties are to file a Joint Statement of Issues on or before 5pm on 12 July 2021.' 'The parties are to file and serve an index to their tender bundles on or before 5pm on 12 July 2021.' 'The parties are to...