Chan v Perry [2009] NSWSC 1278

Chan v Perry [2009] NSWSC 1278

The judge was not actually biased and had not prejudged the defendant's motion. The plaintiff's asserted grounds did not establish apprehended bias because the earlier dismissal of other proceedings brought by the plaintiff, the possibility of criticism on appeal, and the refusal of an adjournment did not provide a logical basis for a fair-minded lay observer to apprehend that the judge might decide the present motion otherwise than on its legal and factual merits. The alleged conspiracy concerning listing was not a sensible inference, and the matter had been listed before the judge because the Defamation List Judge was hearing a jury trial.

Jurisdiction
Australia
Judgment Date
19 November 2009
Procedural Posture
Defamation Proceedings / Plaintiff's Application for the Judge to Disqualify Herself on Grounds of Actual or Apprehended Bias
Outcome
Plaintiff's disqualification application on grounds of bias refused.
Legal Topics
['judicial Disqualification' 'actual Bias' 'apprehended Bias' 'adjournment' 'pro Bono Referral' 'strike Out and Dismissal Applications']
['civil Procedure' 'defamation'] ['judicial Disqualification' 'actual Bias' 'apprehended Bias' 'adjournment' 'pro Bono Referral' 'strike Out and Dismissal Applications']

Case Brief

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Procedural Posture

Defamation Proceedings / Plaintiff's Application for the Judge to Disqualify Herself on Grounds of Actual or Apprehended Bias

Legal Issues

  1. 1 ['Whether the judge was actually biased against the plaintiff.' "Whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the defendant's motion because the judge had previously dismissed other proceedings brought by the plaintiff." 'Whether the refusal of an adjournment and alleged predisposition in similar cases supported disqualification for bias.' 'Whether the alleged circumstances of listing the matter before the judge supported disqualification.']

Ratio Decidendi

The judge was not actually biased and had not prejudged the defendant's motion. The plaintiff's asserted grounds did not establish apprehended bias because the earlier dismissal of other proceedings brought by the plaintiff, the possibility of criticism on appeal, and the refusal of an adjournment did not provide a logical basis for a fair-minded lay observer to apprehend that the judge might decide the present motion otherwise than on its legal and factual merits. The alleged conspiracy concerning listing was not a sensible inference, and the matter had been listed before the judge because the Defamation List Judge was hearing a jury trial.

Court Disposition

Plaintiff's disqualification application on grounds of bias refused.

Orders

  • ["The plaintiff's application that the judge disqualify herself was refused." "The defendant's notice of motion was stood over for hearing later in the week."]