Lowe v Pascoe (No 3) [2012] NSWSC 907

Lowe v Pascoe (No 3) [2012] NSWSC 907

The application failed because the challenged statement was made about a matter not then in issue, was based on a then non-contentious assertion that the journals were predominantly in Mrs Lowe's handwriting, did not amount to a finding as to Mrs Lowe's credit, and did not involve a concluded view on an essential issue. A fair-minded lay observer would not conclude that there was a reasonable apprehension that the judge might not be able to bring a free mind to the fresh trial.

Jurisdiction
Australia
Judgment Date
08 August 2012
Procedural Posture
Application That Judge Recuse Himself / Interlocutory Application
Outcome
Application dismissed.
Legal Topics
['recusal' 'reasonable Apprehension of Bias' 'fair Minded Lay Observer' 'interlocutory Applications']
['procedure'] ['recusal' 'reasonable Apprehension of Bias' 'fair Minded Lay Observer' 'interlocutory Applications']

Case Brief

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Procedural Posture

Application That Judge Recuse Himself / Interlocutory Application

Legal Issues

  1. 1 ["Whether the statement in Lowe v Pascoe (No 2) [2012] NSWSC 885 that the cash payments journals were predominantly in Mrs Lowe's handwriting gave rise to a reasonable apprehension of bias." 'Whether a fair-minded lay observer would conclude that the judge might not be able to bring a free mind to bear on the evidence and submissions in the fresh trial.']

Ratio Decidendi

The application failed because the challenged statement was made about a matter not then in issue, was based on a then non-contentious assertion that the journals were predominantly in Mrs Lowe's handwriting, did not amount to a finding as to Mrs Lowe's credit, and did not involve a concluded view on an essential issue. A fair-minded lay observer would not conclude that there was a reasonable apprehension that the judge might not be able to bring a free mind to the fresh trial.

Court Disposition

Application dismissed.

Orders

  • ['Application dismissed.']