Davis v Insolvency and Trustee Service Australia (No 2) [2009] FCA 589

Davis v Insolvency and Trustee Service Australia (No 2) [2009] FCA 589

Foster J refused to disqualify himself because the passages relied on from the earlier judgment addressed whether there was a serious question to be tried for the purposes of an interlocutory injunction, not definitive findings on matters for the pending motion; undertaking that assessment did not preclude him from hearing the present application.

Jurisdiction
Australia
Judgment Date
29 May 2009
Procedural Posture
Application That the Judge Disqualify Himself From Hearing a Motion / Interlocutory Application Before Hearing of the Second Respondent's Motion Under S 31 a of the Federal Court of Australia Act 1976 (cth)
Outcome
Application refused
Legal Topics
['judicial Disqualification' 'actual Bias' 'reasonable Apprehension of Bias' 'interlocutory Injunctive Relief' 'summary Dismissal Under S 31 A']
['civil Procedure'] ['judicial Disqualification' 'actual Bias' 'reasonable Apprehension of Bias' 'interlocutory Injunctive Relief' 'summary Dismissal Under S 31 A']

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Procedural Posture

Application That the Judge Disqualify Himself From Hearing a Motion / Interlocutory Application Before Hearing of the Second Respondent's Motion Under S 31 a of the Federal Court of Australia Act 1976 (cth)

Legal Issues

  1. 1 ['Whether Foster J should disqualify himself from hearing the motion fixed on 29 May 2009 on the basis of actual bias or reasonable apprehension of bias arising from reasons delivered earlier that morning.' 'Whether the earlier judgment involved definitive findings on matters to be considered in the pending s 31A motion.']

Ratio Decidendi

Foster J refused to disqualify himself because the passages relied on from the earlier judgment addressed whether there was a serious question to be tried for the purposes of an interlocutory injunction, not definitive findings on matters for the pending motion; undertaking that assessment did not preclude him from hearing the present application.

Court Disposition

Application refused

Orders

  • ['The application by the applicant that Foster J disqualify himself from hearing the Motion that is fixed before him on 29 May 2009 be refused.']