Recusal perusal

Defamatorium ... Bias ... An abundance of applications for female defamation judges to recuse themselves ... Relatively few male judges face the same issue ... Why is this so? 

Atkinson: apprehended bias application abandoned by PalmerCLIVE Palmer's abandoned application for Justice Roslyn Atkinson to disqualify herself alerted us to what appears to be a growing development in litigation - applications for female judges to step aside, particularly in defamation cases.

See: Palmer v Gold Coast Publications 

See also: Indemnity costs for egregiousness 

Justice Christine Adamson was asked in October last year by Clive Evatt for the plaintiff to disqualify herself in Born Brands Pty Ltd v Nine Network Australia Pty Ltd (No 3). 

As was the case in AZ v The Age (No 2) (see Pride and Prejudice, Justinian Sept. 2013), the application was made during addresses and consisted of complaints about rulings or questions from the bench.

Objections to the rulings were not made at the relevant time and were insufficient to amount to bias individually, but which were said to amount to bias when tallied together. 

Adamson declined to recuse herself but, perhaps to avoid an interim application to the Court of Appeal (as to which see Keddies stuck in the stalls) handed down her judgment in a record two weeks. 

Adamson: fast judgmentLast month Justice Lucy McCallum in the NSW Supremes was also asked by the plaintiff's legal representatives to disqualify herself in Sporting Shooters Association of Australia v Judge (No 2) after comments she made in the course of case managing the proceedings in the defamation list.

The defendant was unrepresented, and McCallum gave some general advice about security for costs and documents the unrepresented litigant should seek, as well as referring the defendant to the court's pro bono scheme.

When the matter was next in the defamation list, the plaintiff asked the judge to step aside.

McCallum doubted whether she could be asked to disqualify herself in this fashion where there was no matter before her for determination.

She went on to observe that any reasonable, well-informed bystander, seeing the hurly-burly of the defamation list would know that a proactive approach to case management was necessary.

McCallum: hurly burly of the defamation listShe declined to recuse herself.

Not to be outdone by all these applications from lawyers, a litigant in person in Clarke Dallas v State of NSW [2013] NSWSC 1436 at [4] and [24] (not online) sought orders from the Supreme Court against Magistrate Vivian Swain on the basis of her Honour's bias where Ms Dallas was suing for absolutely everything, including defamation, in a more than usually impenetrable pleading.

Associate Justice Joanne Harrison refused the application. 

A quick look for male judges asked to recuse themselves in defamation actions during 2013 did not result in any positive findings. 

Whether this is a developing trend, or just coincidence, the percentage of women judges who have been asked to recuse themselves is disproportionately higher than their overall representation on the bench. 

In retrospect, some of the applications made in relation to women judges seem silly.

A case in point is Newcastle City Council v Lindsay, where Judge Margaret Sidis's notation of an apparent inconsistency between appellate decisions in her regular LexisNexis practice commentary resulted in an application that she recuse herself from hearing personal injury matters.

Would such an application have been made if Judge Sidis was one of the blokes? 

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King: denied remarks made in a liftOUTSIDE the defamation zone, appellants in a Victorian terrorist case appealed their conviction and sentences, alleging that Justice Betty King had said to lawyers in a lift at Owen Dixon Chambera during the trial, "I'm going to lock up a terrorist". 

In October VicAppeals threw out the appeals, saying that the sentences were severe, but quite properly so. The bias ground was rejected. 

The person who made the allegation about King's remark was struck-off solicitor Vu Anh Huy Nguyen.

He was removed from the jam roll in 2010 after pleading guilty to charges of theft, false accounting and trust account deficiencies. 

Last month in the South Australian Supremes, Justice Patricia Kelly declined an application to recuse herself from hearing interlocutory aspects of an appeal brought by John Viscariello against findings of the Legal Profession Disciplinary Tribunal. 

The tribunal had dismissed charges against Adelaide lawyers Mark Livesey QC and Tyneil Flaherty, saying that Mr Viscariello lacked standing and that his grievance was attributable to alleged conduct by a liquidator, rather than the two lawyers.  

His appeal was dismissed by June 27, 2013. On July 18 Viscariello appealed again, and the two lawyers applied for dismissal or an order for security for costs. 

It was during the dismissal application that Viscarello submitted that Kelly was biased and that he could not get a fair hearing in the SA Supremes. 

Impliedly, he seemed to be saying that the court was too familiar with the two lawyers and their counsel.

Kelly said:

"I consider that insufficient particulars and insufficient evidence were put by the appellant in support of his application that I recuse myself."

The NSW Court of Appeal also didn't look kindly on an allegation of bias from a self-represented litigant against Justice Julie Ward in civil penalty proceedings brought by ASIC.

Ward: litigant in person had a go at herWard made orders against a number of company directors, including David John Hobbs. He was disqualified and ordered to pay a substantial sum. 

Justice Reginald Barrett dismissed Hobbs' notice of motion and his appeal. 

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AS for bias applications against judges of the male persuasion there was Judge Michael Finnane's famous alleged indiscreet remarks at a social function along the lines: 

"All paedophiles should be put on an island and starved to death." 

The Court of Appeal dismissed an application that the judge should be prevented from sentencing in a case of indecent assault involving underage males. 

Justice John Basten said: 

"With respect to the suggestion that all paedophiles should be 'put on an island and starved to death', assuming the remark was made by the judge, it could not have been intended literally. No such penalty is known to the law of this State, as would have been well known to the judge, the solicitor and the fair-minded lay observer. It was no doubt an expression of view as to the seriousness of that kind of criminal conduct, accompanied by a high degree of hyperbole." 

Finnane: novel sentencing suggestion for paedophilesThe two Tonys agreed - Meagher and Whealy. 

Justice Steven Rares is also subject to an appeal after declining to recuse himself in a Federal Court case. 

See: Reckitt Benckiser Healthcare (UK) Ltd v GlaxoSmithKline Australia Pty Ltd (No 3). 

Rares rejected Glaxo's application, which was along the lines that various remarks taken together revealed that the fair minded observer might perceive a reasonable apprehension that the judge had prejudged the question of the weight or credibility of a witness' evidence. 

Also, that he had argued strongly against the construction of claims being advanced by Glaxo. 

However, the applications for recusals made against male judges are relatively few.

In MSI Developments Pty Ltd v NAB (2013) VSC, Justice Peter Almond was asked to disqualify himself because his super fund was with the NAB. 

He dismissed the application. 

See also Tulkinghorn: Judicial self-interest 

Are there other recent recusal applications we should have mentioned?