Interlocutory Motion to Recuse (Inhibit) Judge for Apprehended Bias?

Tuesday , 24, May 2016 Leave a comment


CASE : Mandie v Memart Nominees Pty Ltd (No 3) [2016] VSC 267

COURT : Supreme Court of Victoria
Justice : McMillan J

Issue was a question of Bias.

recuse

COURTS AND JUDGES — Judges — Disqualification — Actual bias — Apprehended bias – Discretion to recuse — Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 — Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 — Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 — Johnson v Johnson (2000) 201 CLR 488.

The  plaintiff sought leave to amend his statement of claim in the proceeding, this application was refused by the Judge, except in respect of agreed deletions, the Judge also ordered adverse costs orders against the plaintiffs.

The plaintiffs appealed the primary decision and the costs decision.  The Court of Appeal allowed the appeal in part, and as a consequence, the primary decision was partially overturned and the orders made in the costs decision were set aside.

 

The plaintiff further sought recusal of judge from further hearing of proceeding on basis of actual and apprehended bias or alternatively plaintiffs sought recusal on basis of residual discretion.

HELD :

The plaintiffs did not establish actual or apprehended bias nor any special circumstances justifying recusal, the summons was dismissed.

On the issue of Costs

Whether the costs should be taxed when the proceeding is completed or immediately.

Rule 63.20 of the Rules provides that where an interlocutory application is made in a proceeding and no order is made on the application or the order is silent as to costs, the costs are the parties’ costs in the proceeding, unless the Court otherwise orders.

Rule 63.20.1 provides that unless the Court orders, costs orders on an interlocutory application or hearing shall not be taxed until the proceeding is completed.…

Notwithstanding this general rule, there are certain circumstances in which the Court will make an order as to how costs will be taxed on an interlocutory application. For example, where:

(a) there is a prospect of considerable delay in the completion of a proceeding; or

(b) the issue that is the subject of the interlocutory order involved a separate or discrete issue;

(c) the party against whom the substantive order was made was guilty of ‘unreasonable’, ‘reprehensible’ conduct or conduct lacking ‘competence and diligence’, which the Court has found to constitute unsatisfactory conduct in the circumstances.



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