Eastman v Besanko [2009] ACTSC 144 (23 October 2009)

Last Updated: 11 November 2009

EASTMAN v BESANKO
[2009] ACTSC 144 (23 October 2009)

PRACTICE AND PROCEDURE – application by appellant to a member of a Full Court to disqualify himself from sitting on the hearing of his appeal for reason of his ‘opening comments regarding lack of evidence’ for the continuation of an order in respect of the manner in which the appellant should be detained at the Australian Capital Territory prison during the hearing of the appeal.

The judge declined to recuse himself.

Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 429
Barton v Walker (1979) 2 NSWLR 740

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 4 of 2009
No. SC 362 of 2008

Judge: Graham J
Court of Appeal of the Australian Capital Territory
Date: 23 October 2009

IN THE SUPREME COURT OF THE ) No. ACTCA 4 of 2009
) No. SC 362 of 2008
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: DAVID HAROLD EASTMAN

Appellant

AND: THE HONOURABLE JUSTICE ANTHONY JAMES BESANKO

Respondent

AND: ATTORNEY-GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY

Intervenor

Judge: Graham J
Date: 23 October 2009
Place: Canberra

Graham J declined to recuse himself in response to an application by the appellant that he do so.

IN THE SUPREME COURT OF THE ) No. ACTCA 4 of 2009
) No. SC 362 of 2008
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: DAVID HAROLD EASTMAN

Appellant

AND: THE HONOURABLE JUSTICE ANTHONY JAMES BESANKO

Respondent

AND: ATTORNEY-GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY

Intervenor

Judge: Graham J
Date: 23 October 2009
Place: Canberra

REASONS FOR DECISION

GRAHAM J:

1. An application has been made by the appellant that I recuse myself from further participating in the hearing of his appeal from a decision of Edmonds J given on 18 February 2009 under the Administrative Decisions (Judicial Review) Act 1989 (ACT).
2. The basis on which it is put that I should recuse myself is that I allegedly made some ‘opening comments regarding lack of evidence’ for the continuation of an order apparently made by the Chief Justice, in respect of the manner in which the appellant should be detained at the Australian Capital Territory prison pending the commencement of the hearing of the appeal yesterday. An indication was given by the counsel for the second respondent on behalf of the Chief Executive Officer of the prison authority that the arrangement put in place as a result of the orders made by the Chief Justice would, in fact, be continued.
3. In Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 294 Mason, Murphy, Brennan, Deane and Dawson JJ said:

...[I]t would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgement or bias ...

4. If the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case the system would soon reach a stage where for practical purposes individual parties could influence the composition of the bench. That would be intolerable (see per Gleeson CJ and McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (‘Ebner’) at [20]).
5. If a decision-maker has pre-judged a case so as to be unable or unwilling to decide it impartially, that decision-maker’s determination will be affected by actual bias (see Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 429 (‘Gamaethige’) at [79] per Stone J, with whose reasons Hill J agreed).
6. The appellant charges that I am guilty of actual bias.
7. A decision-maker will be biased if he or she does not approach the decision-making task entrusted to him with an open mind which is open to persuasion one way or the other.
8. Whilst the appellant charges that I am guilty of bias, he has also adverted to the position of the lay bystander in a way which seems to reflect a misunderstanding of the difference between bias and apprehended bias.
9. A judge is also to be disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done. (Per Gleeson CJ and McHugh, Gummow and Hayne JJ in Ebner at [6]).
10. The application of the bias principle requires two steps. First it requires an identification of what it is said might lead a judge to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge has an ‘interest’ in litigation or an interest in a party to it will be of no assistance until the nature of the interest and the asserted connection with the possibility of departure from impartial decision making is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed. (Per Gleeson CJ and McHugh, Gummow and Hayne JJ in Ebner at [8]).
11. In my opinion nothing that has been advanced by the appellant as a reason why I should recuse myself from participating in the hearing and determination of this civil appeal constitutes bias or demonstrates any apprehension of bias on my part. I decline to recuse myself.
12. When a judge announces that he will continue to sit and gives reasons for doing so, he does not make an order (see per Samuels JA, with whose reasons for judgment Reynolds and Glass JJA agreed, in Barton v Walker (1979) 2 NSWLR 740 at 751).
13. Accordingly, I make no order.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Graham.

Associate:

Date: 29 October 2009

Counsel for the Appellant: J G Renwick until approximately 4:04pm on 22 October 2009

Solicitor for the Appellant: Jackson Lalic Lawyers until approximately 4:04pm on 22 October 2009

The Appellant appeared in person from about 4:04pm on 22 October 2009.

The Respondent filed a submitting appearance.
Counsel for the Intervenor: J D Harris SC and D J C Mossop
Solicitor for the Intervenor: ACT Government Solicitor
Date of hearing: 23 October 2009
Date of decision: 23 October 2009